Madras High Court
A.Vijayasekaran vs The Superintendent Of Police on 1 October, 2024
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
WP.No.1558 of 2023
In the High Court of Judicature at Madras
Dated : 01.10.2024
Coram :
The Honourable Mr.Justice N.ANAND VENKATESH
Writ Petition No.1558 of 2023
& WMP.No.1651 of 2023
A.Vijayasekaran, Grade I
Police Constable, Marine
Police Station,
Nagapattinam formerly
Velankanni Police Station,
Nagapattinam District. ...Petitioner
Vs
1.The Superintendent of Police,
Nagapattinam District.
2.The Deputy Inspector General of
Police, Thanjavur Range Office,
Thanjavur District.
3.The Director General of Police,
Tamil Nadu, Chennai-4.
4.The Secretary to Government
(Home) Police 4 Department,
Fort St.George, Chennai-9.
...Respondents
PETITION under Article 226 of The Constitution of India praying
for the issuance of a Writ of Certiorari to call for the records of the
1st respondent in connection with impugned order passed by him in
K1 PR No.5/2016 dated 19.6.2020, confirmed by the 2nd respondent
in Na.Ka.No.B2/APPEAL 67/2020 dated 15.10.2020, modified by the
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1/13
WP.No.1558 of 2023
3rd respondent in Rc.No.1067192/AP.1(1)/2021 dated 15.7.2021 and
confirmed by the 4th respondent in G.O.(D) No.1179 Home (Police-
VI) Department dated 26.8.2022 and quash the same.
For Petitioner : Mr.K.Venkatramani, SC for
Mr.M.Muthappan
For Respondents : Mr.M.Bindran, AGP
ORDER
This writ petition has been filed challenging the proceedings of
the first respondent dated 19.6.2020 as confirmed by the second
respondent in the order dated 15.10.2020, subsequently modified by
the third respondent through proceedings dated 15.7.2021 and
confirmed by the fourth respondent vide G.O.(D) No.1179 dated
26.8.2022.
2. Heard the learned Senior Counsel appearing on behalf of the
petitioner and the learned Additional Government Pleader appearing
for the respondents.
3. When the matter came up for hearing on 24.9.2024, this
Court, on hearing both sides, passed the following order :
"Heard the learned counsel for the petitioner and
the learned Additional Government Pleader appearing
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for the respondents.
2. Disciplinary proceedings were initiated against
the petitioner by issuing a charge memo under Rule
3(b) of the Tamil Nadu Police Subordinate Services
(Discipline & Appeal) Rules, 1955. Originally, an Enquiry
Officer was appointed to conduct oral inquiry against
the petitioner. In the meantime, a criminal case was
registered against the petitioner and it was investigated
in Crime No.17 of 2016 on the file of the Inspector of
Police, Town Police Station, Nagapattinam.
Subsequently, the said criminal case was referred as a
"mistake of fact" in R.C.S.No.48 of 2018 dated
12.7.2018.
3. In so far as the said inquiry conducted by the
Enquiry Officer is concerned, it was found that the
charges have not been proved and a report to that
effect was submitted on 13.8.2018.
4. The grievance of the petitioner is that the first
respondent issued an order dated 24.11.2018
appointing another Enquiry Officer to conduct a fresh
oral inquiry. Pursuant to that, the second Enquiry
Officer submitted a report, based on which, by order
dated 19.6.2020, a punishment of postponement of
increment for two years with cumulative effect was
imposed against the petitioner by the first respondent.
The statutory appeal filed by the petitioner against the
said order dated 19.6.2020 was dismissed by the
second respondent on 15.10.2020. Aggrieved by the
said order 15.10.2020, the petitioner preferred a review
petition before the third respondent, who, by order
dated 15.7.2021, modified the punishment imposed
into one of postponement of increment for one year
without cumulative effect.
5. The main ground that was urged by the
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learned Senior Counsel appearing on behalf of the
petitioner is that the Disciplinary Authority cannot
appoint a second Enquiry Officer when the first Enquiry
Officer had already submitted a report to the effect that
the charges levelled against the petitioner were not
proved. According to him, at best, if the Disciplinary
Authority disagrees with the report by the Enquiry
Officer, he has to assign reasons for disagreeing with
the same and seek for an explanation from the
petitioner and ought to have proceeded further and
such a procedure has not been followed in this case and
hence, the very report of the second Enquiry Officer is
unsustainable in law.
6. The next ground that was urged by the
learned Senior Counsel appearing on behalf of the
petitioner is that even in the second inquiry, only three
witnesses were examined and out of them, the first
witness was the woman, who had sent a letter that she
was not willing to attend the inquiry and tender her
evidence; the second witness was the trustee, who did
not support the case of the prosecution; the third
witness was the Inspector of Police, who registered the
criminal case; and the fourth witness was the Enquiry
Officer, who conducted the preliminary inquiry. He
further submitted that even with the available
statements recorded by the Enquiry Officer, who
conducted the second inquiry, the charges have not
been proved.
7. The learned Additional Government Pleader
seeks for some time to file a counter in this case.
8. Post on 01.10.2024 under the caption 'part
heard cases'."
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4. Pursuant to the said order dated 24.9.2024, today, a counter
has been filed by the first respondent for himself and on behalf of
other respondents also wherein he took a stand that a de novo
inquiry was ordered by the first respondent after receiving the earlier
inquiry report dated 13.8.2018, that in the de novo inquiry, the
subsequent Enquiry Officer found that the charges were proved
against the petitioner and that in view of the same, an appropriate
punishment was imposed against the petitioner. The first respondent
relied upon the second inquiry report in order to come to a conclusion
that the punishment imposed against the petitioner is justified and
that there are no grounds to interfere with the impugned orders. He
ultimately sought for dismissal of this writ petition.
5. The learned Senior Counsel appearing on behalf of the
petitioner relied upon the following judgments :
"(i) a judgment of the Supreme Court in the
case of K.R.Deb Vs. Collector of Central
Excise, Shillong [reported in 1971 (2) SCC
102];
(ii) a judgment of the Supreme Court in the
case of Nirmala J.Jhala Vs. State of Gujarat
[reported in 2013 (4) SCC 301];
(iii) a judgment of the Supreme Court in
the case of Vijay Shankar Pandey Vs. Union of
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India [reported in 2014 (10) SCC 589]; and
(iv) a judgment of the Division Bench of
this Court in the case of P.Siddeswaran Vs.
Secretary to Government of Tamil Nadu
[W.A.No.2629 of 2018]."
6. Per contra, the learned Additional Government Pleader
appearing for the respondents relied upon the judgment of the Apex
Court in the case of State of Karnataka Vs. Umesh [Civil Appeal
Nos.1763 & 1764 of 2022 dated 22.3.2022] in order to
substantiate his submission that the scope of review of an order
passed by the Disciplinary Authority is very limited and that the facts
of the present case do not warrant such interference. He further
submitted that having participated in the inquiry, the petitioner
cannot turn around and now question the very inquiry conducted and
the findings rendered by the subsequent Enquiry Officer.
7. This Court has carefully considered the submissions of the
learned counsel on either and perused the materials available on
record and more particularly the impugned orders.
8. Disciplinary proceedings were initiated against the petitioner
through the proceedings dated 05.4.2016, pursuant to which, an
Enquiry Officer was nominated. The Enquiry Officer conducted the
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inquiry and came to the conclusion that the charges levelled against
the petitioner were not proved. However, the first respondent had
chosen to completely throw away the first inquiry report and
proceeded to appoint a fresh Enquiry Officer to conduct a de novo
inquiry.
9. The first issue that arises for consideration is as to whether
the procedure that was adopted by the first respondent is sustainable
in law.
10. It is now too well settled that where an Enquiry Officer is
appointed and a report is submitted, if the Disciplinary Authority is
not agreeable to the findings of the Enquiry Officer, he can always
give his reasons and seek for an explanation from the delinquent
employee. The other option that is left to the Disciplinary Authority is
to pass an order and point out the deficiencies in the inquiry report
and thereafter, he can always order for a further inquiry and get a
fresh report. The Disciplinary Authority cannot completely abandon
the inquiry that was already undertaken and appoint a fresh Enquiry
Officer to conduct a de novo inquiry. The procedure adopted by the
first respondent cannot be sustained.
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11. Useful reference can be made to the judgment of the Apex
Court in the case of K.R.Deb. Reference can also be made to the
decision of the Apex Court in the case of Vijay Shankar Pandey.
12. The next issue is with regard to the fresh report that was
submitted by the subsequent Enquiry Officer after conducting a de
novo inquiry. Even in the said order dated 24.9.2024, this Court finds
that in the second inquiry, four witnesses were examined. The
woman, who was said to have been orally abused, was not willing to
participate in the inquiry. Out of the three witnesses, the first
witness, who was the trustee, did not support the case of the
prosecution. The second witness was the Inspector of Police, who
registered the criminal case against the petitioner and the third
witness was the Enquiry Officer, who conducted the preliminary
inquiry.
13. On going through the second inquiry report that was
submitted, it is seen that the subsequent Enquiry Officer placed
heavy reliance upon the findings in the preliminary inquiry report.
Apart from that, there is no evidence available for the subsequent
Enquiry Officer to render a finding on the charges.
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14. In view of the above, the second issue that arises for
consideration is as to whether the subsequent Enquiry Officer can
render findings purely based on the findings of the preliminary
inquiry. In the judgment of the Apex Court in Nirmala J.Jhala, it has
been held that the preliminary inquiry in respect of a particular
alleged misconduct is only for the purpose of finding a particular fact
and to prima facie know as to whether the alleged misconduct has
been committed and that the same cannot be taken as the basis for
rendering a finding in a regular inquiry that is conducted by the
subsequent Enquiry Officer.
15. The judgment of the Apex Court in Nirmala J.Jhala was
relied upon by the Division Bench of this Court in the case of P.
Siddeswaran. The Division Bench, after relying upon the judgment
of the Apex Court in Nirmala J.Jhala, held that the preliminary
inquiry conducted cannot be the basis for finding out the guilt of the
delinquent employee in the disciplinary proceedings. This judgment
will squarely apply to the facts of this case.
16. In the instant case, the second Enquiry Officer did not have
any material except the findings in the preliminary inquiry report and
however, they were made as the basis for submitting a fresh report
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holding that the charges were proved. Hence, the report submitted by
the subsequent Enquiry Officer is unsustainable. In the light of the
above findings, the punishment that is imposed against the petitioner
based on the findings rendered by the subsequent Enquiry Officer
cannot be sustained.
17. The judgment relied upon by the learned Additional
Government Pleader dealt with the power of review upon a
disciplinary proceedings. There is absolutely no quarrel on the
proposition that was relied upon by the learned Additional
Government Pleader. This Court, while exercising its jurisdiction
under Article 226 of The Constitution of India, is more concerned
about the procedure that was adopted while imposing a punishment
against the delinquent employee. In the instant case, this Court finds
that the very appointment of the subsequent Enquiry Officer is
opposed to law. That apart, the report of the subsequent Enquiry
Officer is also unsustainable since it was purely based on the
preliminary inquiry report. As a result, the punishment that is
imposed against the petitioner as confirmed and modified and again
confirmed by the respondents cannot be sustained.
18. For the foregoing reasons, all the impugned proceedings of
the respondents are quashed. Accordingly, the writ petition stands
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allowed. No costs. Consequently, the connected WMP is closed.
01.10.2024
RS
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Index : Yes (or) No
Neutral Citation : Yes (or) No
To
1.The Superintendent of Police,
Nagapattinam District.
2.The Deputy Inspector General of
Police, Thanjavur Range Office,
Thanjavur District.
3.The Director General of Police,
Tamil Nadu, Chennai-4.
4.The Secretary to Government
(Home) Police 4 Department,
Fort St.George, Chennai-9.
RS
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N.ANAND VENKATESH,J
RS
WP.No.1558 of 2023&
01.10.2024
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