Madras High Court
K.Selvaraj vs The Superintendent Of Police on 30 October, 2024
W.P.Nos.2751 and 9303 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 02.08.2024 Pronounced on : 30.10.2024
CORAM
THE HONOURABLE MR.JUSTICE MUMMINENI SUDHEER KUMAR
W.P.Nos.2751 and 9303 of 2020
W.P.No.2751 of 2020
K.Selvaraj ... Petitioner
Vs.
1. The Superintendent of Police,
Nagapattinam District, Nagapattinam.
2. The Deputy Inspector General of Police,
Thanjavur Range, Thanjavur. ... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India,
to issue a Writ of Certiorarified Mandamus, calling for the records relating to
the Show Cause Notice issued by the 2nd respondent in
Na.Ka.No.B2/AP.55/2019 dated 14/01/2020 and quash the same and direct
the 2nd respondent to decide the Statutory appeal dated 08/11/2019 on merit
within a reasonable time frame as deem fit by this Honourable court.
W.P.No.9303 of 2020
K.Selvaraj ... Petitioner
Page 1 of 21
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W.P.Nos.2751 and 9303 of 2020
Vs.
1. The Superintendent of Police,
Nagapattinam District, Nagapattinam.
2. The Deputy Inspector General of Police,
Thanjavur Range, Thanjavur. ... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India,
to issue a Writ of Certiorarified Mandamus, calling for the records relating to
the Show Cause Notice issued by the 2nd respondent in Na.Ka.No.B2/
AP.55/2019 dated 14/01/2020 and quash the same and direct the 2nd
respondent to decide the Statutory appeal dated 08/11/2019 on merit within a
reasonable time frame as deem fit by this Honourable court.
In Both Writ Petitions
For Petitioners : Mr.S.R.Sankareshwaran
For Respondents : Ms.E.Ranganayaki,
Additional Government Pleader
COMMON ORDER
These two writ petitions have been filed by the same petitioner based
on the same fact situation and as such, both the matters were heard together
and are being disposed of by this common order.
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2. The petitioner herein was initially appointed as 'Grade-II, Police
Constable' in TSP-I Battalion, Trichy and thereafter, the petitioner was
transferred to District Armed Reserve Perambalur District and in the year
2004, he was transferred to District Armed Reserve Nagapattinam District
and thereafter, he was transferred to Taluk Police Establishment in the year
2010 and then he was upgraded as ‘Grade I, Police Constable’ in the year
2006 and further upgraded as 'Head Constable' in the year 2011. The
petitioner also claimed to have received 16 rewards for his performance and
there were no adverse remarks against the petitioner through out his service.
3. While so, he availed causal leave on 24.06.2018 and thereafter, he
was alleged to have involved in a Crime No.134 of 2018 under Section 379 of
Indian Penal Code,Section 21(1) of the Mines and Mineral (Development and
Regulation) Act, 1957 and under Section 23 of Juvenile Justice (Care and
Protection of Children) Act, 2015 dated 24.06.2018 on the ground that the
petitioner has engaged a minor boy, by name Sanjay for the purpose of
transportation of sand from the backyard of the house of the petitioner to
some other place, though, the said Mr.Sanjay was not having a driving licence
and made him to drive the Tractor bearing Registration No. TN51 L0672,
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W.P.Nos.2751 and 9303 of 2020
standing in the name of the wife of the petitioner. The further allegation
against the petitioner is that the petitioner has allowed the said minor, by
name Mr.Sanjay to use the official mobile of the petitioner.
4. In view of the registration of the above said crime against the
petitioner, the petitioner was suspended from service on 25.06.2018 and
thereafter, a charge-memo dated 25.09.2018 was issued containing two
charges. The petitioner submitted his explanation denying the said charges. It
was thereafter, an Enquiry Officer was appointed to enquire into the charges
and the said Enquiry Officer, after having examined the four witnesses, came
to the conclusion that the charges framed against the petitioner as proved and
submitted his report dated 01.08.2019. It was thereafter, a copy of the
enquiry report was furnished to the petitioner and the petitioner also
submitted his further representation. It was thereupon, the Respondent No.1
herein passed an order, dated 25.10.2019, imposing the punishment of
compulsory retirement against the petitioner. It was aggrieved by the said
punishment of compulsory retirement, the petitioner preferred an appeal
dated 08.11.2019 before the Respondent No.2.
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5. It is on considering the said appeal, the Respondent No.2 issued a
show-cause notice, dated 14.01.2020, proposing to enhance the punishment
of compulsory retirement and afforded an opportunity to the petitioner to
submit his explanation. It was aggrieved by the said show-cause notice dated
14.01.2020, the petitioner approached this Court by filing W.P.No.2751 of
2020 and this Court, while entertaining the writ petition by an order dated
05.02.2020, granted interim stay of the show-cause notice, dated 14.01.2020
and subsequently, the said order was extended until further orders and the
same is still in operation.
6. Considering the fact that there was stay of all further proceedings
pursuant to the show-cause notice referred to above and the appeal filed by
the petitioner could not be considered further by the Respondent No.2, the
petitioner approached this Court by filing W.P.No.9303 of 2020, questioning
the order of punishment dated 25.10.2019 passed by the Respondent No.1,
imposing the punishment of compulsory retirement.
7. During the pendancy of the writ petition, the criminal case that was
registered against the petitioner in Crime No.134 of 2018 of Voimedu Police
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Station was taken on record as Special Calendar Case No.131 of 2022 by the
Special Court of Mines and Minerals (Development and Regulations)
(Sessions Court), Nagapattinam and by an order dated 18.08.2023, the
petitioner, sole accused, was acquitted by the said Court under Section 248(1)
of the Civil Procedure Code.
8. Heard Mr.S.R.Sankareshwaran, learned counsel for the petitioners
and Ms.E.Ranganayaki, learned Additional Government Pleader appearing
for the respondents.
9. The learned counsel for the petitioner contended that the charge that
was levelled against the petitioner in the criminal proceedings as well as the
disciplinary proceedings are one and the same and the witnesses that are
examined and other evidence that was relied upon in both the proceedings is
one and the same and in view of the acquittal of the petitioner in criminal
case, the order of punishment of compulsory retirement passed by the
Respondent No.1 cannot be sustained. In support of his contention, he has
placed reliance on a decision of the Hon'ble Apex Court in the case of “ Ram
Lal -vs- State of Rajasthan and others” made in Civil Appeal No.7935 of
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2023, dated 04.12.2023”
10. He also further contended that he was falsely implicated in the
criminal case and even assuming that the said allegations are true, the same
are nothing to do with the discharge of duties of the petitioner as 'Head
Constable' and as a matter of fact, the petitioner was never involved in any
such criminal activity or committed any misconduct, warranting initiation of
disciplinary proceedings against the petitioner. He also further contended that
the very charges that are framed against the petitioner are wholly
unsustainable and the punishment of compulsory retirement that was imposed
against him itself is shockingly disproportionate to the charges levelled
against the petitioner. He also further contended that the Respondent No.2/
Appellate Authority, instead of considering the appeal filed by the petitioner
in proper perspective, adopted a perverse approach and proposed to enhance
the punishment of compulsory retirement by issuing the impugned show-
cause notice and as such, the same is also liable to be set aside.
11. On the other hand, Ms.E.Ranganayaki, learned Additional
Government Pleader appearing for the respondents contended that, the
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petitioner, being a member of a disciplined service, is expected to maintain
good conduct while discharging his duties and also in his behaviour
throughout and he cannot abuse his official position to commit illegalities or
resort to criminal activities. She also further submitted that the nature of proof
that is required for establishing the criminal case is totally different from the
nature of the evidence that is required to establish the charges in the
disciplinary proceedings. According to her, it is the preponderance of
probabilities is sufficient to conclude that the charges framed against the
petitioner as proved.
12. This Court has carefully considered the submissions made on either
side and also perused the entire material on record.
13 The charges that are framed against the petitioner are as under:-
“fle;j 11/01/2018k; njjp Kjy; ehfg;gl;odk;
khtl;lk; tha;nkL fhty; epiyaj;jpy; jiyik
fhtyuhf gzp g[hpe;J tUk; ePh; 24/06/2018k;
njjp xU ehs; jw;bray; tpLg;gpy; brhe;j
CUf;Fr; brd;W ckJ tPl;od; gpd;g[wj;jpy;
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bfhl;o itf;fgl;goUe;j kziy ckJ kidtp
khyjp bgahpy; gjpt[ bra;ag;gl;Ls;s TN 51 L
0672 gjpt vz;Zs;s ouhf;oUld; Toa
og;ghpy; Xl;Leh; chpkk; bgwg;glhj 18 taJ
g{h;j;jpailahjr; bry;td; r";ra; 18-18. j-
bg/gd;dPh;bry;tk;. gl;lbtsp bjU jpUbtz;fhL
vd;gth; cjtpa[ld; ,uz;L a{dpl; kziy Vw;wp
oiuthplk; ckJ bry;nghd; CUG 9498165373
bfhLj;J jpUbtz;fhL gl;lbtsp vd;w
,lj;jpy; thfd jdpf;if bra;J bfhz;oUe;j
jpUbtz;fhL cjtp Ma;thsh; ouhf;liu gpoj;J
tprhuiz bra;J ckJ bgahpYk;. Xl;Leh;
bgahpYk; jpUbtz;fhL fhty; epiya Fw;w
vz; 134/18 u/s 379 IPC r/w 21(1) Mines and
Mineral Development and Regulation Act, 1957 go
tHf;F gjpt[ bra;a fhuzkhf ,Ue;J
xH';fPdkhd fz;of;fj;jf;f Fw;wk;/
2/ ePh; ckJ thfd Xl;Leh; r";ra;. j-
bg/gd;dPh;bry;tk;. gl;lbtsp bjU jpUbtz;fhL
vd;gtiu Xl;Leh; chpkk; ,y;iy vd;W ed;F
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bjhpe;jpUe;Jk; l;uf;if Xl;o bry;yt[k; 18 taJ
g{h;j;jp milahj xU rpWtiu ouhf;liu Xl;l
mDkjpj;j ckJ brayhdJ rpWtiu gzpapy;
<LgLj;jp bjhHpyhsh; ey rl;l tpjpfisa[k; kPwp
ele;J bfhz;l xG';fPdkhd fz;of;fj;jf;f
,uz;lhtJ Fw;wr;rhl;lhFk;/”
From the perusal of the above charge, it is evident that the entire basis for the
charges is only the crime that was registered against the petitioner in Crime
No.134 of 2018 of the Thiruvengadu Police Station. The contents of the
charges are also nothing but the contents of the First Information Report. The
said charges are nothing to do with the discharge of duties of the petitioner as
'Head Constable' of the Voimedu Police Station, Nagapattinam District.
Admittedly, the petitioner was on casual leave on 24.06.2018 i.e., the date on
which the said crime was registered against the petitioner.
14. It is not in dispute that the said Crime No.134 of 2018, which was
taken on record as a Special Calender Case No.131 of 2022 by the Special
Court concerned had ended in acquittal by a judgment dated 18.08.2023.
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15. From the perusal of the said judgement in Special Calendar Case
No.131 dated 2022 and the report of the Enquiry Officer dated 01.08.2019,
holding the two charges against the petitioner as proved would disclose that
the witnesses that are examined in both the proceedings are almost identical.
P.W.1 to P.W.3 examined in the disciplinary proceedings are the prosecution
witnesses examined in the criminal proceedings vide P.W.1, P.W.5 and
P.W.14. Two other witnesses that were examined in the disciplinary
proceedings as P.W.4 and P.W.5 are the Deputy Superintendent of Police of
the area, where the crime was registered and the place where the petitioner
was working at the relevant point of time. Their evidence is nothing to do
with the proof of alleged involvement of the petitioner in the said crime in the
commission in the misconduct as alleged against the petitioner.
16. Whatever the charge that was framed against the petitioner in the
criminal proceedings is the very same charge that is alleged against the
petitioner in the departmental proceedings as well. When both the charges are
identical in nature and the evidence that was adduced is also identical in
nature, especially in the context of the fact that the alleged misconduct of the
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petitioner is nothing to do with the discharge of his duties as 'Head
Constable', the issue as to whether the findings recorded in the disciplinary
proceedings can be allowed to stand in the light of the findings recorded by
the judicial forum in the criminal proceedings is the only question that would
arise for consideration in the present case.
17. As rightly pointed out by learned counsel for the petitioner, the
Hon'ble Apex Court, recently in the case of “ Ram Lal -vs- State of
Rajasthan and others” made in Civil Appeal No.7935 of 2023, dated
04.12.2023 has been pleased to consider the very same question and held as
under:-
“23. With this above background, if we examine
the criminal proceedings the following factual position
emerges. The very same witnesses, who were examined in
the departmental enquiry were examined in the criminal
trial. Jagdish Chandra, Bhawani Singh, Shravan Lal, Raj
Singh and Karan Sharma were examined as PW2, PW3,
PW6, PW9 and PW13 respectively at the criminal trial.
Apart from them, eight other witnesses were also
examined. The gravamen of the charge in the criminal
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case was that the appellant had submitted an application
for recruitment along with his marksheet and he, by
making alteration in his date of birth to reflect the same
as 24.04.1972 in place of 21.04.1974, and obtained
recruitment to the post of Constable. Though the Trial
Court convicted the appellant under Section 420 of IPC,
the Appellate Court recorded the following crucial
findings while acquitting the appellant:
“….Mainly the present case was based on
the documents to this effect whether the
date of birth of accused is 21.04.1972 or
21.04.1974. Exh. P-3 is original Marksheet,
in which, the date of birth of accused has
been shown as 21.04.1972 and same has
also been proved by the witnesses examined
on behalf of the prosecution. Whatever the
documents have been produced before the
Court regarding the date of birth of
21.04.1974 are either the letters of
Principal or are Duplicate T.C. Or
Marksheets. Neither the prosecution has
produced any such original documents in
the Subordinate Court to this effect that
when the admission form of accused was
filled, what date of birth was mentioned by
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the accused in it, what was the date of birth
in Roll Register of School, what date of
birth was mentioned by accused in the
Examination Form of Secondary, and nor
after bringing the original records from the
concerned witnesses, same were got proved
in the evidence. In these circumstances, this
fact becomes doubtful that date of birth of
accused was 21.04.1974, and accused is
entitled to receive it’s benefit. In the
considered opinion of this Court, the
conviction made by the Ld. Subordinate
Court merely on the basis of oral evidences
and letters or duplicate documents, is not
just and proper. It is justifiable to acquit
the accused.
Resultantly, on the basis of aforesaid
consideration, the present appeal filed by
the Appellant/Accused is liable to be
allowed.” [Emphasis supplied]
24. What is important to notice is that the
Appellate Judge has clearly recorded that in the
document Exh. P-3 – original marksheet of the 8th
standard, the date of birth was clearly shown as
21.04.1972 and the other documents produced by the
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prosecution were either letters or a duplicate marksheet.
No doubt, the Appellate Judge says that it becomes
doubtful whether the date of birth was 21.04.1974 and
that the accused was entitled to receive its benefit.
However, what we are supposed to see is the substance of
the judgment. A reading of the entire judgment clearly
indicates that the appellant was acquitted after full
consideration of the prosecution evidence and after
noticing that the prosecution has miserably failed to
prove the charge [ See S. Samuthiram (Supra).]”
The above conclusions were arrived by the Hon'ble Apex Court, after having
reviewed the entire legal position in Paragraph Nos.11 to 13 of the said
decision, which reads as under:-
11. We have examined both the questions
independently. We are conscious of the fact that a writ
court’s power to review the order of the Disciplinary
Authority is very limited. The scope of enquiry is only to
examine whether the decision-making process is
legitimate. [See State Bank of India vs. A.G.D. Reddy,
2023:INSC:766 = 2023 (11) Scale 530]. As part of that
exercise, the courts exercising power of judicial review
are entitled to consider whether the findings of the
Disciplinary Authority have ignored material evidence
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and if it so finds, courts are not powerless to interfere.
[See United Bank of India vs. Biswanath Bhattacharjee,
2022:INSC:117 = (2022) 13 SCC 329]
12. We are also conscious of the fact that mere
acquittal by a criminal court will not confer on the
employee a right to claim any benefit, including
reinstatement. (See Deputy Inspector General of Police
and Another v. S. Samuthiram, (2013) 1 SCC 598).
13.However, if the charges in the departmental enquiry
and the criminal court are identical or similar, and if the
evidence, witnesses and circumstances are one and the
same, then the matter acquires a different dimension. If
the court in judicial review concludes that the acquittal
in the criminal proceeding was after full consideration of
the prosecution evidence and that the prosecution
miserably failed to prove the charge, the Court in
judicial review can grant redress in certain
circumstances. The court will be entitled to exercise its
discretion and grant relief, if it concludes that allowing
the findings in the disciplinary proceedings to stand will
be unjust, unfair and oppressive. Each case will turn on
its own facts. [See G.M. Tank vs. State of Gujarat &
Others, (2006) 5 SCC 446, State Bank of Hyderabad vs.
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P. Kata Rao, (2008) 15 SCC 657 and S. Samuthiram
(supra)]
In the light of the decision of the Hon'ble Apex Court, applied to the case on
hand, the twin charges that are framed against the petitioner and the
consequential punishment imposed on the petitioner cannot be allowed to
stand in the light of the findings already recorded herein above on the
similarity of the of the charges and evidence adduced in both the proceedings.
18. Then, coming to the impugned show-cause notice dated 14.01.2020
issued by the Respondent No.2, proposing to enhance the punishment of
compulsory retirement, is perverse on the face of it. This Court has rightly
stayed the operation of the said show-cause notice by passing an interim
order in the year 2020. The very charges that are framed against the petitioner
are subject to proof before the competent criminal court and even before the
same was examined by the competent criminal court, the respondents have
chosen to initiate disciplinary proceedings by framing the charges, basing
upon the very same crime and contents of the crime, have chosen to conclude
the same by imposing the major punishment of compulsory retirement against
a person, who had rendered 23 years of unblemished service coupled with the
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rewards on 16 occasions. The punishment of compulsory retirement itself was
harsh, but the Respondent No.2, instead of considering the appeal filed by the
petitioner in proper perspective, without assigning any sufficient reasons, has
resorted to invoke his power to enhance the punishment in an arbitrary
manner.
19. In all fairness, the Respondent No.1, being the disciplinary
authority, ought to have considered the matter in proper perspective and
taking into consideration the fact that the petitioner has given a scope for
registration of a crime and the vehicle that was involved in the said crime was
admittedly standing in the name of his wife and the said vehicle as well as his
mobile phone were stated to be missing at the relevant point of time and the
mobile phone was not in possession of the petitioner, which is an official
mobile, the Respondent No.1 ought to have imposed a lesser punishment,
which would have enabled the petitioner to mend himself and behave
appropriately in future. But, unfortunately the Respondent No.1 failed to
exercise the discretion, conferred upon him as a disciplinary authority. But,
the petitioner, who was aged about 45 years by the date of imposition of
punishment of compulsory retirement at the crucial stage of his life and his
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children would be at the college-going age, he was compulsorily retired from
service and he is out of employment for the past about 5 years. The same
would itself operated as a punishment against the petitioner for having given
scope for registration of a crime against him.
20. In the light of the conclusions arrived at by this Court on the
charges that are framed against the petitioner and also the punishment of
compulsory retirement that was imposed on the petitioner, the impugned
order and the show-cause notice cannot be sustained.
21. In the light of the above, the impugned order bearing K1/
j/g/vz;/25-2018, dated 25.10.2019 in W.P.No.9303 of 2020 and the
impugned show cause notice, dated e/f/vz;/gp2-nky;KiwaPL/55-2019,
dated 14.01.2020 in W.P.No.2751 of 2020 are hereby quashed and
consequently, the Respondent No.1 is directed to forthwith reinstate the
petitioner as ‘Constable’ with continuity of service, however with limited
backwages. The petitioner shall be entitled to count the entire period he was
kept out of service for all purposes. The pension amount, if any paid from the
date of punishment i.e., 25.10.2019 till the date of reinstatement shall stand
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adjusted as backwages and over and above the said amount, the petitioner
shall not be entitled for any backwages. The terminal benefits, if any drawn
by the petitioner pursuant to the order of compulsory retirement other than
monthly pension shall be remitted by the petitioner within a period of three
months from the date of reinstatement into service.
22. Accordingly, both the writ petitions are allowed. No costs.
Consequently, connected miscellaneous petitions, if any, shall stand closed.
30.10.2024
skr
Index : Yes / No
Speaking order / Non-speaking order
Neutral Citation : Yes / No
To
1. The Superintendent of Police,
Nagapattinam District, Nagapattinam.
2. The Deputy Inspector General of Police,
Thanjavur Range, Thanjavur.
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MUMMINENI SUDHEER KUMAR, J.
skr
Pre-Delivery Order made in
W.P.Nos.2751 and 9303 of 2020
30.10.2024
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