Madras High Court
M.Selvakumar vs The Director General Of Police/Head Of ... on 21 January, 2025
Author: R.Vijayakumar
Bench: R.Vijayakumar
W.P(MD).No.15661 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on :19.12.2024
Pronounced on : 21.01.2025
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P.(MD).No.15661 of 2024
and WMP(MD).No.13660 of 2024
M.Selvakumar ....Petitioner
Vs
1.The Director General of Police/Head of Police Force
Mylapore
Chennai – 4
2.The Deputy Inspector General of Police
Madurai Range
Madurai City
Madurai District
3.The Superintendent of Police
Madurai
Madurai District ....Respondents
Prayer : This Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus calling for the records relating to the
punishment order of removal from service passed by the third respondent in
his proceedings in Slip Order No.96/2020, F3/PR-28/2017 dated 24.08.2020
and the consequential impugned order confirmed by the second respondent in
his proceedings in C.No.A4/917864/AP/2021, R.O.C.No.172/2021 dated
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1/14
W.P(MD).No.15661 of 2024
16.04.2021 and the consequential impugned order confirmed by the first
respondent in his proceedings in Rc.No.2117125/AP.No.2(3)/2023 dated
20.03.2024 and quash the same as illegal and consequentially to direct the
respondents to reinstate the petitioner as Data Entry Operator with continuity
of service with all attendant monetary benefits within the period that may be
stipulated by this Court.
For Petitioner : Mr.C.Venkatesh Kumar
M/s.Ajmal Associates
For Respondents : Mr.D.Sasikumar
Additional Government Pleader
ORDER
The present writ petition has been filed by a Data Entry Operator who
was working in Sholavandhan Police Station, Madurai District challenging
the final order passed as against him in the proceedings initiated under Rule
17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules wherein
the petitioner has been imposed with a punishment of removal from service.
(A)Facts leading to the filing of the present writ petition are as
follows:
2.A Woman Sub-Inspector of Police had lodged a criminal complaint as
against the writ petitioner before Thallakulam Police Station in Crime No.946
of 2013 for the alleged offence under Sections 354(c), 506(i) I.P.C read with
Section 66(E) of Information Technology Act and Section 4 of Tamil Nadu
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Prohibition of Harassment of Women Act on 02.08.2013. The petitioner was
arrested on the same day and he was remanded to judicial custody. In view of
the implication in the criminal case, the petitioner was placed under
suspension by an order dated 05.08.2013 with effect from 02.08.2013.
3.The petitioner had submitted an explanation for the preliminary
enquiry initiated as against him on 13.09.2013. Thereafter, the order of
suspension was revoked by the authority on 21.02.2014 and he was
reinstated.
4.The petitioner was issued with a charge memo on 06.04.2017. It is
alleged in the charge memo that the petitioner was carrying a video camera in
the form of a pen in his pocket and he was taking photographs of a Woman
Sub-Inspector of Police and when he was questioned about the same, it is
alleged that he has threaten that it is his own camera and he would take
picture of any one. It is further alleged in the charge memo that the petitioner
has been implicated in the criminal case in Crime No.946 of 2013 and he was
arrested and later let on bail. On the above said allegation, the petitioner was
issued with a charge memo for violating Rule 20 of Tamil Nadu Government
Servant Conduct Rules 1973.
5.The petitioner has submitted his explanation to the above said charge
memo and thereafter, an enquiry was conducted. Pending enquiry
proceedings, the petitioner has given a representation on 04.12.2018
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requesting seeking copy of the copy of the photographs taken by him in the
pen camera and video and he sought to examine the complainant namely the
lady Sub-Inspector of Police and another Inspector of Police for cross
examination. However, the alleged pen camera was not produced or a copy of
the photograph or video alleged to have been taken using the said camera
were not furnished to the writ petitioner.
6.The enquiry report was submitted on 23.06.2020 to the effect that the
petitioner had used the pen camera and he had admitted that he had handed
over the same to the lady Sub-Inspector to verify the recording. The charges
as against the writ petitioner have been proved.
7.The petitioner was called upon to furnish his explanation to the
enquiry report by way of proceedings dated 20.07.2020. The petitioner has
submitted his further explanation on 03.08.2020 denying the allegations.
Thereafter, the impugned punishment order of removal from service was
passed by the third respondent on 24.08.2020.
8.The petitioner had preferred an appeal to the second respondent and
the second respondent has rejected the appeal on 16.04.2021. Thereafter, the
petitioner had preferred a revision to the first respondent on 27.10.2021.
While the revision petition was pending before the first respondent, the
petitioner was acquitted by the criminal Court on 07.09.2023. Thereafter, the
petitioner has given further representation to the first respondent intimating
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him about the acquittal from the criminal case. Thereafter, the first respondent
had passed the order dismissing the revision petition on 20.03.2024. The
present writ petition has been filed challenging the order of the respondents 1
to 3 wherein the punishment of removal from service has been imposed and
the said order has been confirmed by the appellate and the revisional
authority.
(B)Contentions of the learned counsels appearing on either side are
as follows:
9.The learned counsel appearing for the petitioner had primarily
contended that at no point of time the petitioner had ever used a pen camera
to take photographs or videographs of any female Sub-Inspector of Police.
10.No such pen camera was produced either before the criminal Court
or during the departmental proceedings. The petitioner has never admitted
that he had used a pen camera to take photographs of police officials. The
impugned order of the third respondent is perverse in view of the fact that the
same is not based upon any oral or documentary evidence.
11.The learned counsel had further contended that a criminal case was
registered as against the writ petitioner on the same set of facts and he was
acquitted by the criminal Court. The learned counsel for the petitioner had
relied upon a judgment of the Hon'ble Division Bench in WA.No.1342 of
2021 (The Principal Secretary to Government Handlooms, Handicrafts
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Textiles and Khadi (G1) Department, Chennai Vs. M.Rathakrishnan) dated
04.03.2022 wherein the Hon'ble Division Bench has held that when the
conclusion of the disciplinary authority is not based on any evidence and it is
perverse in nature, the Court can interfere in the order of punishment imposed
upon the said findings rendered by the disciplinary authority.
12.Per contra, the learned Additional Government Pleader appearing
for the respondents herein has extensively relied upon the counter filed by the
third respondent and contended that the petitioner was involved in various
delinquencies. Initially, a charge memo was issued as against the writ
petitioner in PR.No.10 of 2013 under Rule 17(b) of Tamil Nadu Civil
Services (Discipline and Appeal) Rules for being implicated in a criminal
case in Crime No.800 of 2012 on the file of Thallakulam Police Station. In
the said departmental proceedings, the petitioner was imposed with a
punishment of postponement of increment of three years with cumulative
effect.
13.The petitioner had faced another departmental proceedings in
PR.No.40 of 2018 under Rule 17(b) of Tamil Nadu Civil Services (Discipline
and Appeal) Rules for threatening a person who had demanded refund of
borrowed amount. However, no order could be passed in the said
departmental proceedings, in view of the fact that the petitioner had already
been removed from service.
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14.The learned Additional Government Pleader had further contended
that when the petitioner had visited Thallakulam Police Station for lodging a
complaint, he had misbehaved with the woman Sub-Inspector of Police by
taking videographs with a pen and had threatened her with dire consequences
and therefore, a criminal case was registered as against him in Crime No.946
of 2013 in various provisions of IPC and Tamil Nadu Prohibition of
Harassment of Women Act. After giving due opportunity to the writ
petitioner, the petitioner has been imposed with a punishment of removal
from service.
15.The learned Additional Government Pleader had further contended
that the petitioner had earlier challenged the charge memo dated 06.04.2017
in WP.(MD)No.13803 of 2017 and this Court was pleased to dismiss the said
writ petition on 26.07.2017. The petitioner had filed WA.(MD)No.1317 of
2017 and the same was dismissed by the Hon'ble Division Bench on
30.11.2018. These facts have been suppressed by the writ petitioner. He had
further contended that the petitioner is working as a Data Entry Operator in a
Police Station and therefore, his behaviour with a lady police officer in
another police station is highly reprehensible and therefore, the petitioner has
rightly been imposed with a punishment of removal from service.
16.The learned Additional Government Pleader had further contended
that mere acquittal in the criminal proceedings will not in any way enure to
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the benefit of the writ petitioner. When there is misconduct on the part of the
writ petitioner, the department is entitled to proceed with enquiry and pass
orders independently without being carried away by the acquittal order
passed by the criminal Court. He had further contended that the petitioner has
not been honourably acquitted, but the acquittal order is based upon benefit
of doubt and therefore, the department is not prevented from proceeding with
the enquiry. Considering the nature of allegation as against the writ petitioner,
the petitioner is liable to be punished with removal from service. Even though
the petitioner was imposed with a punishment of postponement of increment
in another departmental proceedings, the petitioner has not changed his
activities and he continued his delinquency. In such view of the matter, the
writ petition may be dismissed and the order of removal from service may be
confirmed.
17.I have considered the submissions made on either side and perused
the material records.
(C)Discussion:
18.The petitioner's mother had some dispute with neighbouring tenants
and she had lodged a complaint in Thallakulam Police Station on 24.07.2013.
Since the said complaint was not entertained, the petitioner's mother had
lodged a complaint before the Commissioner of Police, Madurai on
25.07.2013. The petitioner had gone to the Thallakulam Police Station on
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02.08.2013 along with his mother and has given a fresh complaint. At that
point of time, the petitioner was having a pen camera in his pocket and the
concerned lady police officer had questioned the same and seized it from him.
While giving explanation on 13.09.2013 in the preliminary enquiry
proceedings, the petitioner has admitted that he was carrying a pen camera in
his pocket and he was keeping the same for the purpose of protecting his life
against the accused person against whom he is filing a complaint.
19.It is further admitted in the said explanation that the said pen
camera was taken away by the lady police officer and it was not returned to
him. Therefore, it is clear that the petitioner was carrying a pen camera in a
live condition in his pocket while he visited Thallakulam Police Station on
02.08.2013.
20.The primary allegation as against the writ petitioner in the charge
memo is that the petitioner had taken videographs of the woman lady Police
Officer and when it was questioned by the said officer, he had threatened her
that he would continue to do so. Though carrying of a pen camera is admitted
by the delinquent, it is for the department to prove that whether the petitioner
has taken any photographs or videographs of the lady police officer using the
said pen camera.
21.A perusal of Annexure No.III of the charge memo reveals that such
a pen camera or any photographs or videographs alleged to have been taken
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by the writ petitioner is not part of the documents relied upon by the
department. A perusal of the acquittal order passed by the criminal Court on
07.09.2023 reveals that such a pen drive or any photographs or videographs
were not marked before the criminal Court also. The criminal Court has
arrived at a specific finding that the defacto lady police officer has admitted
that so far she has not seen the said pen camera. Even though the said pen
camera is said to have been seized on the date of complaint, the same was not
produced either before the criminal Court or in the departmental proceedings.
The criminal Court had further found that CCTV footage in the police station
has also not been produced to establish such an occurrence.
22.The third respondent while imposing the punishment has arrived at
a finding that the delinquent has admitted taking photographs using the pen
drive and therefore, the petitioner is deemed to have used the said pen camera
to have taken photographs and videographs of the lady police officer also.
This finding is clearly perverse in view of the fact that neither the pen camera
nor the photographs or videographs have been produced either before the
criminal Court or before the departmental proceedings to establish the fact
that the delinquent had taken photographs or videographs of the lady police
officer. In such circumstances, the factual finding arrived at by the third
respondent in his impugned order is clearly perverse, in view of the fact that
the same is not supported by any oral or documentary evidence.
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23.The Hon'ble Supreme Court in a judgment reported in (2009) 2
SCC 570 (Roop Singh Negi Vs. Punjab National Bank and others) in
paragraph No.23 has held as follows:
“23.....A decision must be arrived at on some evidence,
which is legally admissible. The provisions of the Evidence Act
may not be applicable in a departmental proceeding but the
principles of natural justice are. As the report of the Enquiry
Officer was based on merely ipse dixit as also surmises and
conjectures, the same could not have been sustained. The
inferences drawn by the Enquiry Officer apparently were not
supported by any evidence. Suspicion, as is well known,
however high may be, can under no circumstances be held to
be a substitute for legal proof.
24.The Hon'ble Supreme Court in a judgment reported in (2022) 13
SCC 329 (Union Bank of India Vs.Biswanath Battacharjee) dated
31.01.2022 in Paragraph No.21 has held as follows:
“21. The bank is correct, when it contends that an appellate
review of the materials and findings cannot ordinarily be
undertaken, in proceedings under Article 226 of the Constitution.
Yet, from H.C. Goel onwards, this court has consistently ruled that
where the findings of the disciplinary authority are not based on
evidence, or based on a consideration of irrelevant material, or
ignoring relevant material, are mala fide, or where the findings
are perverse or such that they could not have been rendered by any
reasonable person placed in like circumstances, the remedies
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under Article 226 of the Constitution are available, and
intervention, warranted. For any court to ascertain if any findings
were beyond the record (i.e., no evidence) or based on any
irrelevant or extraneous factors, or by ignoring material evidence,
necessarily some amount of scrutiny is necessary. A finding of “no
evidence” or perversity, cannot be rendered sans such basic
scrutiny of the materials, and the findings of the disciplinary
authority.....”
25.In view of the judgments of the Hon'ble Supreme Court, it is clear
that this Court can exercise its power under Article 226 of Constitution of
India to interfere in the order of punishment imposed in the departmental
proceedings when it is established that the finding and the punishment are not
based upon any oral or documentary evidence, but merely based upon
conjectures and surmises. In such circumstances, this Court is of the
considered opinion that the order of imposition of punishment of removal
from service is not supported by any evidence and it is perverse in nature.
26.With the above said deliberations, the orders impugned in the writ
petition are set aside. The respondents are directed to reinstate the petitioner
with continuity of service with attendant benefits. However, this will not
preclude the authorities from reopening PR.No.40 of 2018 which was closed
due to punishment imposed under the impugned orders.
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27.With the above said observations, this writ petition stands allowed
to the extent as stated above. No costs. Consequently, connected
miscellaneous petition is closed.
21.01.2025.
Internet : Yes/No
Index : Yes/No
NCC : Yes/No
msa
To
1.The Director General of Police/Head of Police Force
Mylapore
Chennai – 4
2.The Deputy Inspector General of Police
Madurai Range
Madurai City
Madurai District
3.The Superintendent of Police
Madurai
Madurai District
https://www.mhc.tn.gov.in/judis
R.VIJAYAKUMAR, J.
msa
and WMP(MD),No.13660 of
21.01.2025
https://www.mhc.tn.gov.in/judis
