Madras High Court
The Director General Of Police vs B.Mohamed Meera on 9 March, 2023
W.A.No.2518 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.03.2023
CORAM :
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
and
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
W.A.No.2518 of 2018 and
CMP No.20361 of 2018
1. The Director General of Police,
Tamil Nadu, Chennai-4.
2. The Principal Secretary to Government,
Home (Police VI) Department,
Secretariat, Chennai-9. ... Appellants
vs
B.Mohamed Meera ...
Respondent
Prayer: Writ Appeal filed under Clause 15 of the Letters Patent against the
order dated 01.09.2017 made in W.P.No.27864 of 2013 on the file of this
Court.
For Appellants : Mr.P.Anandakumar, Addl.Govt.Pleader
For Respondent : Dr.C.Ravichandran
Page 1 of 15
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W.A.No.2518 of 2019
JUDGMENT
(Judgment of the Court was delivered by D.KRISHNAKUMAR, J.)
Challenging the order passed by the Writ Court in W.P.No.27864 of
2013 dated 01.09.2017, this intra Court Appeal has been filed.
2. The brief facts, which lead to file the present appeal are as follows.
The respondent herein/writ petitioner was appointed as Grade-II
Police Constable in the police department on 17.11.1998 and subsequently
he was promoted as Grade-I Police Constable and further promoted as Head
Constable during the year 2004. While the writ petitioner was working as
Head Constable, a case in TDP Case No.25/2007 was registered against
him and two other officials namely, S.S.Anandan, formerly Reserve Sub
Inspector of Police and Oli Mohamed, Head Constable and in that case, the
writ petitioner was arrayed as A2. Further, in the above case, totally 9
charges were framed against the accused persons and as far as the writ
petitioner is concerned, six charges were framed against him. The
allegations against the accused persons are that they demanded amount of
Rs.250, Rs.200, Rs.500, Rs.600, Rs.400 from the riders of the two wheelers
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W.A.No.2518 of 2019
on 24.05.2005 and 25.05.2005 and only on receipt of the same amounts,
they released the vehicles, thereby, they failed to maintain absolute integrity
and devotion to duty in Government Service. After enquiry proceedings, the
Tribunal found that the charges framed against the accused were proved
and filed a Report. Based on the above report, the first appellant herein
imposed punishment of compulsory retirement on the writ petitioner, vide
order dated 03.08.2010 and the Appeal filed by the writ petitioner before the
second appellant herein was also ended against him, vide rejection order
dated 31.07.2013. Therefore, challenging the above order of compulsory
retirement and the order of rejection the Writ petitioner filed the Writ
Petition.
3. The Writ Court, by its order dated 01.09.2017, has given a finding
as extracted hereunder.
9. .... Therefore, the order imposing the punishment of
compulsory retirement dated 03.08.2010 and the consequential order
dated 31.07.2013, rejecting the appeal are set aside. This Court directs
the reinstatement of the petitioner, however, the petitioner is not entitled
to the salary for the period when he was compulsorily retired until the
period of his reinstatement, as this Court thinks that this would be
sufficient punishment for the petitioner for the proved misconduct. The
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W.A.No.2518 of 2019
respondents are directed to pass orders reinstating the petitioner within a
period of four weeks from the date of receipt of a copy of this order. It is
also made clear that on being reinstated, the petitioner, except for
backwages, is entitled to all other benefits like continuity of service,
seniority, any further promotion etc.
Challenging the above order, the appellants/government have preferred the
present Writ Appeal.
4. The learned counsel for the Appellants submitted that the evidence
of the witnesses reveals that the respondent/writ petitioner was assisting the
officials in discharging their duty for apprehending the riders of two
wheeler, who were violating the traffic rules. Therefore, the writ petitioner
being a responsible Head Constable at the time of occurrence, he also
equally responsible for the offence committed by the Reserve Sub
Inspector/A1. He further submitted that, the first appellant, after
considering the enquiry report filed by the Tribunal and also considering the
evidence of PW1 to PW7 and also the evidence of the official witness RW1,
has passed the final order by imposing punishment of compulsory
retirement. Further, the Statutory Appeal filed by the writ petitioner was also
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W.A.No.2518 of 2019
carefully considered by the second appellant herein and after gone through
the findings of the Commissioner for Disciplinary proceedings, has rightly
rejected the Appeal by order dated 31.07.2013. The learned counsel further
submitted that though the learned Single concluded that the writ petitioner
has involved in the above said occurrence and not interfered with the
findings of the authorities concerned, has wrongly observed that the
punishment of compulsory retirement is excessive and has modified the
punishment, as stated supra. Therefore, the order of the Writ Court is liable
to be set aside.
5. The learned counsel for the respondent/ writ petitioner submitted
that, there is no specific allegation as against the writ petitioner for
demanding gratification or acceptance of gratification from the traffic
violators. In support of his contentions, he relied upon the evidence of
individual witnesses viz. PW1 to PW7 and submitted that the above
witnesses have not made any specific statement as against the respondent for
demanding illegal gratification. Further, there is no materials to show that
the respondent had involved in receipt of bribe amount from the violators.
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W.A.No.2518 of 2019
He further submitted that, A2/ Mr.S.S.Anandan, formerly Reserve Sub
Inspector of Police is the authority concerned for receiving the said amount
and only as per his instructions, the amounts were collected and handed over
to him.
5.1. The learned counsel for the respondent/writ petitioner also
submitted that, there is no direct evidence to prove that the respondent along
with other officials had received the illegal gratification. Further, the
Appellate Authority has not passed reasoned order and the order is not in
accordance with law and the provisions of the Rules. Therefore, the Writ
Court has passed the order, by setting aside the orders passed by the first
and second appellant herein, which does not warrants any interference by
this Court.
6. We heard the learned counsel for the appellants and the learned
counsel for the respondent and perused the materials available on record.
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W.A.No.2518 of 2019
7. A perusal of the records show that totally 9 charges were framed
with regard to collecting money from 9 traffic violators, out of which, 6
charges were framed as against the writ petitioner and A1 for receiving
money from 6 difference traffic violators. According to the appellants, PW4
-Thiru.Sarath Prasad, PW6 - Thiru K.C.Senthilkumar and PW7 -Thiru
S.Viswanathan in their evidence have categorically stated that the Sub
Inspector and Head Constable (Writ Petitioner) demanded money and the
writ petitioner received all the amount. Therefore, it is argued by the
appellants that the contention of the writ petitioner that he had only assisted
the superior, who involved in corruption is not acceptable and the Writ
Court has not considered the evidence of the violators properly and hence,
the order passed by the Writ Court is liable to be set aside.
8. According to the respondent/Writ Petitioner, on the date of
occurrence, he has not received any bribe amount from the violators,
whereas, he received fine amounts from the violators and for the same
receipts were also issued to them, and the received fine amounts were
handed over to the Reserve Sub Inspector Thiru S.Anandan and hence, the
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W.A.No.2518 of 2019
writ petitioner was nothing to do with the alleged demanding of bribe
amount.
9. The learned counsel for the respondent/ writ petitioner brought to
the notice of this Court the evidence of prosecution witnesses and argued
that PW3- S.Velmurugan had not deposed that either the writ petitioner
demanded illegal gratification or he paid illegal gratification to him; PW4-
Sarath Prasath and PW7-S.Viswanathan in their evidence had not deposed
that they paid the fine amount to the writ petitioner and they had not even
mentioned about the name of the writ petitioner; PW5- M.Palanisamy and
PW6- K.C.Senthilkmar had not deposed that they paid the amount to the
writ petitioner and he released their vehicle only on receipt of that amount.
He further submitted that, the Tribunal without taking into consideration of
the above evidence of witnesses had concluded that the writ petitioner had
involved in the afore said occurrence and hence, the charges framed against
him are proved. It is contended by the respondent/writ petitioner that though
he made explanation, it was not considered by the first appellant herein, and
only taking into account that the writ petitioner had not denied his presence
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W.A.No.2518 of 2019
at the place of occurrence and also not denied the receipt of money from the
violators and handed over to the Reserve Sub Inspector of police, had
imposed such excessive punishment of compulsory retirement. Further, the
second appellant also rejected the appeal filed by the writ petitioner, by
passing stereotypic order. Therefore, the appeal filed the Government is
liable to be dismissed.
10. It is relevant to note that the learned Single judge while passing
order, has observed that, there is no discussion in the findings of the
disciplinary authority and only on the observations of the enquriy
officer/Tribunal, the disciplinary authority held that the petitioner was
assisting his superior, during vehicle check up. Hence, on the said ground,
the punishment of compulsory retirement was set aside by the Writ Court.
11. Admittedly, the learned Single Judge has found that, the writ
petitioner was assisting his higher officer while vehicle check up. Therefore,
we cannot brush aside that the petitioner had not involved in the aforesaid
incident. The learned counsel for the respondent/ writ petitioner also pointed
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W.A.No.2518 of 2019
out that, there is no specific allegation against the writ petitioner that he
received the gratification. But, it was admitted by the writ petitioner that he
received the amount and handed over to the Reserve Sub Inspector
Mr.S.S.Anandan. Against the other two charged officers, namely,
Mr.S.S.Anandan, Reserve Sub Inspector and Mr.Oli Mohammed, Head
Constable, after enquiry, punishment was also imposed on them. According
to the appellants, the punishment imposed on the above two officers had
become final and they have not preferred any appeal. However, the
petitioner being present on the date of occurrence and being a party to the
charged officials, we cannot say that there was no direct involvement of the
writ petitioner in receiving the bribe amount. Though there is no evidence as
against the writ petitioner to prove that he had directly demanded bribe
amount, he did not deny that, he was present at the scene of occurrence and
on the date of occurrence he had received money from the traffic violators
and handed over it to the Reserve Sub Inspector Thiru S.Ananthan.
Therefore, the writ petitioner was also a party to the above said occurrence,
which had taken place on 24.05.2005 and 25.05.2005, as alleged in the
charges.It is to be noted that, the writ petitioner had attained the age of
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W.A.No.2518 of 2019
superannuation on 30.06.2022 and after the date of occurrence, it has been
passed 14 years.
12. At this juncture, it is useful to rely upon the decision of the
Hon'ble Supreme Court in Union of India and others Vs. Ex.Constable
Ram Karan, reported in (2022) 1 Supreme Court Cases 373 and the
relevant paragraphs are extracted as under.
24. Even in cases where the punishment imposed by the disciplinary
authority is found to be shocking to the conscience of the Court, normally, the
disciplinary authority or the appellate authority should be directed to reconsider the
question of imposition of penalty. The scope of judicial review on the quantum of
punishment is available but with a limited scope. It is only when the penalty imposed
appears to be shockingly disproportionate to the nature of misconduct that the courts
would frown upon. Even in such a case, after setting aside the penalty order, it is to
be left to the disciplinary/appellate authority to take a call and it is not for the court to
substitute its decision by prescribing the quantum of punishment. However, it is only
in rare and exceptional cases where the court might to shorten the litigation may
think of substituting its own view as to the quantum of punishment in place of
punishment awarded by the competent authority that too after assigning cogent
reasons.
25. The principles have been culled out by a three-Judge Bench of this Court
way back in B.C.Chaturvedi V. Union of India wherein, it was observed as under :
(Scc p.762, para 18)
18. A review of the above legal position would establish that
the disciplinary authority an on appeal the appellate authority, being
fact-finding authorities have exclusive power to consider the
evidence with a view to maintain discipline. They are invested with
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W.A.No.2518 of 2019
the discretion to impose appropriate punishment keeping in view the
magnitude or gravity of the misconduct. The High
Court/Tribunal, while exercising the power of judicial review,
cannot normally substitute its own conclusion on penalty and
impose some other penalty. If the punishment imposed by the
disciplinary authority or the appellate authority shocks the
conscience of the High Court/Tribunal, it would appropriately
mold the relief, either directing the disciplinary/appellate
authority to reconsider the penalty imposed, or to shorten the
litigation, it may itself, in exceptional and rare cases, impose
appropriate punishment with cogent reasons in support
thereof.
26. It has been further examined by this Court in Lucknow Kshetriya Gramin Bank
V. Rajendra Singh as under: (SCC p.382, para 19)
19. The principles discussed above can be summed up and
summarised as follows:
19.1. When charge(s) of misconduct is proved in an enquiry
the quantum of punishment to be imposed in a particular case is
essentially the domain of the departmental authorities.
19.2. The courts cannot assume the function of disciplinary/
departmental authorities and to decide the quantum of punishment
and nature of penalty to be awarded, as this function is exclusively
within the jurisdiction of the competent authority.
19.3. limited judicial review is available to interfere with the
punishment imposed by the disciplinary authority, only in cases
where such penalty is found to be socking to the conscience of the
Court.
19.4. Even in such a case when the punishment is set aside
as shockingly disproportionate to the nature of charges framed
against the delinquent employee, the appropriate course of action is
to remit the matter back to the disciplinary authority or the appellate
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W.A.No.2518 of 2019
authority with direction to pass appropriate order of penalty. The
Court by itself cannot mandate as to what should be the penalty in
such a case.
19.5. The only exception to the principle stated in para 19.4. above,
would be in those cases where the co-delinquent is awarded lesser
punishment by the disciplinary authority even when the charges of
misconduct were identical or the co-delinquent was foisted with
more serious charges. This would be on the doctrine of equality
when it is found that the employee concerned and the co-delinquent
are equally placed. However, there has to be a complete parity
between the two, not only in respect of nature of charge but
subsequent conduct as well after the service of charge-sheet in the
two cases. If the co-delinquent accepts the charges, indicating
remorse with unqualified apology, lesser punishment to him would
be justifiable."
Therefore, in the light of the above decision of the Hon'ble Supreme Court,
we inclined to modify the order passed by the learned Single Judge.
13. Accordingly,
(i) The order passed by the Writ Court dated 01.09.2017 in
W.P.No.27864 of 2013 is modified by imposing punishment of stoppage of
increment for three years with cumulative effect.
(ii) the appellants are directed to calculate the service period of the
writ petitioner from the date of compulsorily retirement till the age of
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W.A.No.2518 of 2019
superannuation i.e., on 30.06.2022, in accordance with law.
(iii) In other respects, the writ petitioner is entitled to get all the
service and monetary benefits.
(iv) in sofaras the backwages is concerned, the period from the date of
compulsorily retirement till the date of order passed by the learned Single
Judge is excluded.
(v) The first respondent is directed to settle the entire service and
monetary benefits to the writ petitioner, within a period of 12 weeks from
the date of the receipt of the copy of this order.
14. With the above modification, the Writ Appeal is disposed of. No
costs. Consequently, connected miscellaneous petition is closed.
(D.K.K.J.) (K.G.T.J.)
09.03.2023
Index : Yes/No
Internet : Yes/No
mst
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W.A.No.2518 of 2019
D.KRISHNAKUMAR, J.
and
K.GOVINDARAJAN THILAKAVADI, J.
mst
W.A.No.2518 of 2018
09.03.2023
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