Madras High Court
C.Thangaraj vs The Deputy Inspector General Of Police on 29 November, 2023
W.P.No.12289 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.11.2023
CORAM:
THE HON'BLE MR. JUSTICE K.KUMARESH BABU
W.P.No.12289 of 2011
and M.P.No.2 of 2011
C.Thangaraj
HC-590
Bagalur Police Station,
Krishnagiri District. ...Petitioner
Vs.
1.The Deputy Inspector General of Police,
Salem Range,
Salem.
2.The Superintendent of Police,
Krishnagiri.
… Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India, to issue a
Writ of Certiorarified Mandamus to call for the records of the 2 nd respondent in
D.O.No.337/2005 C.No.A2/2906/2005 dated 24.03.2005 and quash the same and
directing the respondents to restore the petitioner to the post of Head Constable,
irrespective of pendency of the Charge sheet laid against the petitioner and others in
Crime No.2/AC/2000, dated 18.03.2000 and Special C.C.No.59 of 2004 dated
27.10.2004 on the file of Special Judge-Cum-Chief Judicial Magistrate, Salem.
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1/10
W.P.No.12289 of 2011
For Petitioner : Mr.T.Arulraj
For Respondent : Mr.R.Neethi Perumal
Government Advocate
ORDER
The instant Writ Petition has been filed seeking to quash the order of the
second respondent dated 24.03.2005 and direct the respondents to restore the
petitioner to the post of Head Constable irrespective of the Charge sheet laid against
the petitioner.
2.Heard Mr.T.Arulraj, learned counsel appearing for the petitioner and
Mr.R.Neethi Perumal, learned Government Advocate appearing for the respondents.
3.Mr.T.Arulraj, learned counsel appearing for the petitioner would submit that
the petitioner had joined as Grade – II Police Constable on 17.11.1988 and promoted
as Grade-I Police Constable on 01.10.1999 and then he should have been promoted
as Head Constable in the year 1998. But he was promoted as an Head Constable by
an order dated 09.11.2004 with effect from 28.10.2004. However, the petitioner was
arrested on 19.03.2000 on the basis of the complaint filed by one N.Mathivanan
along with various other persons. The order impugned was sought to be cancelled
since a charge sheet had been laid against the petitioner in Special C.C.No.59 of 2004
on 27.10.2004. He would submit that the criminal case that had been filed in the
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aforesaid calendar case was tried by the Special Judge, Salem and by a judgment
dated 23.05.2017 he had been acquitted of the offences charged. Further, he would
submit that the order of cancellation had been made in the year 2005 whereas the
petitioner was promoted as a Head Constable on 28.10.2004 on the pretext that he
had been charge-sheeted. Even though he had challenged the said order of
cancellation on the ground that he was not served with any notice prior to the
issuance of such order in view that he had been acquitted in the criminal case itself,
the reason assigned in order of cancellation cannot now stand and therefore, the order
of promotion ought to be restored and further benefits ought to be given to the
petitioner.
4.He would further submit that the Disciplinary Proceedings initiated by the
respondents were quashed by following a Division Bench judgment of this Court of
similarly placed persons and therefore, there is no impediment in granting the relief
as prayed for by the petitioner. In fact, he would submit that the learned Single Judge
while quashing the charge memo had also made it clear that the service benefits due
to the petitioner should be granted.
5.Countering his arguments, Mr.R.Neethi Perumal, learned Government
Advocate appearing for the respondents would submit that the petitioner along with
various other persons had involved themselves in corrupt practices for which, a
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criminal case had been initiated against them. Against the order of acquittal, the
Government had preferred a Criminal Appeal which is still pending on the file of this
Court. He would further submit that the upgradation of the petitioner was made on
28.10.2004, whereas the petitioner was charged by a criminal Court on 27.10.2004.
This was not brought to the notice of the Authority while granting a general order of
upgrading of various Grade – II Police Constables who were upgraded as Head
Constables. When it is brought to the notice of the Authority about the charge sheet
that is pending on the date when the upgradation was ordered, an order of
cancellation had been passed. He would submit that in the peculiar facts of the case,
there is no necessity to put the petitioner on notice about the order of cancellation
since the order of cancellation itself was not non-est for the reason that the persons
against whom criminal cases are pending were not entitled to be upgraded.
6.He would further submit that the Department had preferred an appeal as
against the order of the learned Single Judge in W.A.S.R.No.22644 of 2023. He
would submit that the Division Bench judgment relied upon by the learned Single
Judge to quash the charge memo in the case of the petitioner had also been
challenged by the Government in S.L.P.Nos.15883 to 15891 of 2022 and the same is
pending before the Hon'ble Apex Court. Therefore, he would submit that quashing of
the charge memo had not attained finality and therefore, the same cannot be relied
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upon by the petitioner to substantiate his case.
7.I have considered the rival submission made by the respective counsel
appearing on either side and perused the materials available on record.
8.The petitioner was granted upgradation from the post of Grade – I Police
Constable to Head Constable on 28.10.2004 and the same had been cancelled by the
order impugned taking note of the fact that on 27.10.2004, the petitioner had been
charge-sheeted. A departmental action has also been initiated against which, the
petitioner had preferred W.P.No.32256 of 2007 & this Court had dismissed the same
by order dated 14.09.2011.
9.As regards the Departmental Proceedings persons, those who were charge
sheeted in the criminal case along with the petitioner were also sought to be
proceeded departmentally which they had challenged before this Court in a batch of
Writ Petitions in W.P.No.11376 of 2012. Pending the said Writ Petitions, the criminal
Court had acquitted all the persons charged by its order dated 23.05.2017. Taking
note of the said fact, the charge memo against the similarly placed persons had been
quashed by the learned Single Judge of this Court by its order dated 25.03.2021.
Aggrieved against the order of quashing, the Government had preferred W.A.No.1071
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of 2022 etc and the Hon'ble Division Bench of this Court by its order dated
21.04.2022 had dismissed the appeal filed by the Government. It is also brought to
my notice that the Government had preferred a Special Leave Petition against the said
order, however, no stay has been granted by the Hon'ble Apex Court. Taking note of
the Division Bench order of this Court, the charge memo in the case of the petitioner
had also been quashed by the learned Single Judge in the Writ Petition filed by him &
another in W.P.Nos.5253 & 5254 of 2018 by order dated 28.07.2022 which also
seems to have been taken by way of Intra Court Appeal filed by the Government and
it is still yet to be numbered.
10.Learned Single Judge while allowing the Writ Petition had issued the
following directions:
“That the impugned orders in both the writ petitions are hereby
quashed. Consequently, the respondent shall pass necessary
orders with regard to the service benefits due to these petitioners.
However, it is made clear that, insofar as the service benefits to
be conferred on the petitioners, all those benefits shall only be
given as notional benefits. Such benefits shall be considered as
continuity of service or length of service for the purpose of
consequential relief and based of which, in respect of the
petitioners, who have superannuated, they shall be permitted to
retire from service on the date of superannuation and
consequently, their retiral and pensionary benefits shall be
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calculated and disbursed.”
The prayer in the Writ Petition is to set aside the order of cancellation of upgradation
on the ground that the petitioner had been charge sheeted in a criminal case. The said
reason does not stand any more as the petitioner had been acquitted in the criminal
case. Therefore, the order of cancellation would have to go and his order of
upgradation would have to be restored. I need not give a specific direction with
regard to the same since already a learned Single Judge in the Writ Petition filed by
the petitioner challenging the charge memo had issued directions by directing the
respondents to pass necessary orders with regard to the service benefits due to the
petitioner.
11.In such view of the matter, no further orders are required to be made in this
Writ Petition. However, a direction is given to the respondents to comply with the
directions issued by the learned Single Judge in W.P.Nos.5253 & 5254 of 2018
within a period of six weeks from the date of receipt of a copy of this order. It is
needless to say that the petitioner shall also be upgraded as a Head Constable
pursuant to the order dated 28.10.2004.
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12.With the aforesaid directions, the Writ Petition is disposed of. There shall be
no order as to costs. Consequently, the connected miscellaneous petition is closed.
29.11.2023
Index: Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation: Yes/No
pam
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To
1.The Deputy Inspector General of Police,
Salem Range,
Salem.
2.The Superintendent of Police,
Krishnagiri.
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K.KUMARESH BABU, J.
pam
29.11.2023
https://www.mhc.tn.gov.in/judis
