Madras High Court
D.Felix Suresh Peter vs The Government Of Tamil Nadu on 27 January, 2025
Author: B.Pugalendhi
Bench: B.Pugalendhi
WP(MD)No.20576 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.01.2025
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
WP(MD)No.20576 of 2018
D.Felix Suresh Peter .. Petitioner
v.
1.The Government of Tamil Nadu,
Rep. by its Additional Chief Secretary,
Home (Pol.IV) Department,
Fort St.George, Chennai – 600 009.
2.The Director General of Police,
Tamil Nadu, Chennai.
3.The Additional Director General of Police,
Law and Order, Tamil Nadu,
Chennai – 600 004.
4.The Commissioner of Police,
Tirunelveli,
i/c The Deputy Inspector General of Police,
Tirunelveli.
5.Mahendran,
Enquiry Officer,
Additional Superintendent of Police,
Headquarters, Tirunelveli District,
Tirunelveli. .. Respondents
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WP(MD)No.20576 of 2018
PRAYER: Petition filed under Article 226 of the Constitution of India
seeking issuance of a Writ of Certiorarified Mandamus calling for the
records of the order passed by the first respondent in G.O(D)No.313, Home
(Pol-IV) Department, dated 03.04.2018, G.O(D)No.780, Home (Pol-IV)
Department, dated 23.06.2017; the order passed by the second respondent
in R.C.No.162364/AP2(1)/2015 dated 16.12.2016; the order passed by the
third respondent in R.Dis.No.168724/AP2(1)/2014 dated .03.2015; the
order passed by the fourth respondent in P.R.No.33/2012, Tirunelveli
District/C1/15123/2011-Tirunelveli Range, dated 27.05.2014; the enquiry
report submitted by the fifth respondent in Punishment Roll No.33/2012
dated 21.11.2013, and quash the same.
For Petitioner : Mr.K.Jeyamohan
For Respondents : Mr.G.V.Vairam Santhosh
Additional Government Pleader
for R.1 to R.4
No appearance for R.5
*****
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WP(MD)No.20576 of 2018
ORDER
The petitioner is an Inspector of Police. The fourth respondent /
Commissioner of Police has issued a charge memo as against the petitioner
in PR.No.33/2012 that he failed to investigate the case in Crime No.41 of
2011 on the file of Sendamaram Police Station properly. The case in Crime
No.41 of 2011 was registered u/s.174 CrPC for 'woman missing'. The case
was later altered into Section 302 IPC and the victim was found dead. The
charge against the petitioner is that the petitioner / investigation officer,
without proper investigation and without taking steps to find the real
accused, arrested the father and a relative of the deceased, by obtaining a
confession statement by intimidation. The Deputy Superintendent of Police,
Puliyangudi, found the same and initiated the proceedings.
2.The fifth respondent / Enquiry Officer [Additional Superintendent
of Police] gave a report dated 21.11.2013 that the charge was proved. The
fourth respondent / disciplinary authority [Superintendent of Police]
accepted the enquiry report and by order dated 27.05.2014, imposed a
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punishment of postponement of increment for three years, which shall
operate to postpone the future increment, under Rule 3(b) of the Tamil
Nadu Subordinate Police Service (Discipline and Appeal) Rules, 1955. The
appeal preferred by the petitioner was rejected by the third respondent /
Additional Director General of Police, vide order dated 31.03.2015. The
mercy petition filed by the petitioner was not entertained by the second
respondent / Director General of Police, vide order dated 16.12.2016.
Challenging the same, the petitioner has moved a representation before the
Government and the same was rejected by the first respondent vide order
dated 23.06.2017. Aggrieved, the petitioner has filed this writ petition.
3.Learned Counsel appearing for the petitioner submitted that when
the petitioner served as Inspector of Police, Kadayanallur, he held
additional charge of the post of Inspector of Police, Sendamaram. The
charge against the petitioner was that he has not properly investigated the
case in Crime No.41 of 2011 on the file of the Sendamaram Police Station
and without taking steps to find the real accused, he arrested the father and
a relative of the deceased, by obtaining a confession statement by
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intimidation. The petitioner's Counsel refuted this allegation and submitted
that the deceased had a love affair with one Ramesh @ Sudukkattu Ramesh.
The deceased's father, Vellapandy, warned both of them. However, she
continued the relationship even after her marriage. Therefore, the
deceased's father and the elder brother of the deceased murdered her. The
deceased's father gave a voluntary confession statement before the VAO,
Sendamaram and VAO, Veerasigamani Village. It is a case of honour
killing and both the accused persons were arrested and remanded to
judicial custody. All these facts have been noted in the Grave Crime Report
as well. Being the supervisory officer, the Deputy Superintendent of Police,
Puliyangudi, examined the same. While so, the very same Deputy
Superintendent of Police, who earlier supervised the petitioner's
investigation, took up further investigation on the orders of the
Superintendent of Police, arrested Ramesh @ Sudukattu Ramesh, the
deceased's lover and one Chelladurai. The Deputy Superintendent of
Police, Puliyangudi, filed the charge sheet against these two accused, by
letting off the accused arrested earlier by the petitioner.
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4.Learned Counsel appearing for the petitioner pointed out
Chelladurai, one of the accused in the murder case, died during the trial
and the other accused, Ramesh @ Sudukattu Ramesh, was acquitted by the
trial Court vide judgment dated 10.09.2015. Even before that, departmental
proceedings was initiated against the petitioner that the two accused
arrested by the petitioner were innocent and the other two persons arrested
and charge sheeted by the Deputy Superintendent of Police were the real
accused.
5.According to the learned Counsel, based on the materials collected
by the investigation agency then, the petitioner has arrested the father and
relative of the deceased, for which, he cannot be penalized. He has also
pointed out that in the departmental proceedings, the fifth respondent
served as both the Enquiry Officer as well as Presenting Officer. Therefore,
he prayed for appropriate orders.
6.Learned Additional Government Pleader appearing for the
respondents, reiterating the facts of the case, submitted that the trial Court
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acquitted the accused by extending the benefit of doubt and not on merits.
By referring to the decision of the Hon'ble Supreme Court in State of
Rajasthan and Others v. Heem Singh [2021 (2) CTC 332], learned
Additional Government Pleader submitted that the scope of the judicial
review in disciplinary matters is very limited and that the acquittal in a
criminal case is not a ground for reviewing the order of punishment
imposed by the authority. Therefore, he prayed for dismissal.
7.This Court considered the rival submissions made on either side
and perused the materials placed on record.
8.The observations made by the Hon'ble Supreme Court in Heem
Singh's case (supra) regarding the scope of judicial review in disciplinary
proceedings is extracted as under:-
“33. In exercising judicial review in disciplinary matters, there
are two ends of the spectrum. The first embodies a rule of restraint. The
second defines when interference is permissible. The rule of restraint
constricts the ambit of judicial review. This is for a valid reason. The
determination of whether a misconduct has been committed lies
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primarily within the domain of the disciplinary authority. The judge
does not assume the mantle of the disciplinary authority. Nor does the
judge wear the hat of an employer. Deference to a finding of fact by the
disciplinary authority is a recognition of the idea that it is the employer
who is responsible for the efficient conduct of their service. Disciplinary
enquiries have to abide by the rules of natural justice. But they are not
governed by strict rules of evidence which apply to judicial proceedings.
The standard of proof is hence not the strict standard which governs a
criminal trial, of proof beyond reasonable doubt, but a civil standard
governed by a preponderance of probabilities. Within the rule of
preponderance, there are varying approaches based on context and
subject. The first end of the spectrum is founded on deference and
autonomy – deference to the position of the disciplinary authority as a
fact finding authority and autonomy of the employer in maintaining
discipline and efficiency of the service. At the other end of the spectrum
is the principle that the court has the jurisdiction to interfere when the
findings in the enquiry are based on no evidence or when they suffer
from perversity. A failure to consider vital evidence is an incident of
what the law regards as a perverse determination of fact. Proportionality
is an entrenched feature of our jurisprudence. Service jurisprudence has
recognized it for long years in allowing for the authority of the court to
interfere when the finding or the penalty are disproportionate to the
weight of the evidence or misconduct. Judicial craft lies in maintaining a
steady sail between the banks of these two shores which have been termed
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as the two ends of the spectrum. Judges do not rest with a mere
recitation of the hands-off mantra when they exercise judicial review. To
determine whether the finding in a disciplinary enquiry is based on some
evidence an initial or threshold level of scrutiny is undertaken. That is to
satisfy the conscience of the court that there is some evidence to support
the charge of misconduct and to guard against perversity. But this does
not allow the court to re-appreciate evidentiary findings in a
disciplinary enquiry or to substitute a view which appears to the judge
to be more appropriate. To do so would offend the first principle which
has been outlined above. The ultimate guide is the exercise of robust
common sense without which the judges’ craft is in vain.”
9.The scope of judicial review in matters relating to disciplinary
proceedings is very limited. It is meant to ascertain as to whether due
process was followed and whether a fair opportunity was accorded to the
employee concerned. The power of Courts is limited to reviewing the
decision making process, rather than the merits of the decision itself. This is
to ensure fairness in treatment and not the fairness of the conclusion. The
Courts should not interfere with the findings of the fact arrived at in the
departmental proceedings, except in cases of mala fide or perversity.
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10.In the case on hand, the petitioner has not raised any such plea of
lack of jurisdiction or mala fide or perversity. However, the petitioner
contended that the fifth respondent acted both as Disciplinary Authority as
well as Presenting Officer in the enquiry proceedings. It appears that the
fifth respondent was appointed as an Enquiry Officer and based on his
report, the fourth respondent / Disciplinary Authority imposed the
punishment. Therefore, on this ground, this Court is not inclined to
entertain this writ petition.
11.With regard to the other ground raised by the petitioner that the
criminal case ended in acquittal, it is by now well-settled in law that
acquittal in a criminal case does not ipso facto operate as a bar for initiating
or continuing departmental proceedings against a public servant. The
standard of proof in a criminal trial is proof beyond reasonable doubt,
whereas in a departmental enquiry, the requirement is only that of
preponderance of probabilities. Therefore, the outcome of a criminal case,
particularly an acquittal, cannot automatically result in the closure or
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abatement of disciplinary proceedings unless the findings in the criminal
case conclusively negate the allegations forming the subject matter of the
disciplinary action.
12.In the present case, the petitioner / delinquent officer, who was
the Investigating Officer (IO) at the initial stage of the criminal case, had
arrested and shown two persons as accused. Subsequently, upon change of
investigation, the successor IO released those individuals and proceeded to
file a charge sheet against two different persons. The trial eventually
culminated in the acquittal of the latter. Even prior to the conclusion of the
criminal trial, disciplinary proceedings had been initiated against the
petitioner / first IO on the ground that the initial course of investigation
reflected serious lapses, lack of due diligence, and a possible dereliction of
duty.
13.The petitioner now seeks to rely upon the ultimate acquittal
recorded in the criminal case as a ground to claim that the departmental
enquiry cannot be pursued. This contention is misconceived. The charges in
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the departmental proceedings relate to the conduct of the officer during the
period when he was in charge of investigation — specifically, the manner
in which he exercised his authority under the Criminal Procedure Code in
identifying and arresting the accused persons. These acts are independent
of the later development wherein a different set of accused were
prosecuted, and it cannot be whitewashed by the eventual acquittal.
14.The Hon'ble Supreme Court in Heem Singh's case (supra) has
discussed about the effect of an acquittal in a disciplinary proceedings as
under:-
“34. In the present case, we have an acquittal in a criminal trial
on a charge of murder. The judgment of the Sessions Court is a
reflection of the vagaries of the administration of criminal justice. The
judgment contains a litany of hostile witnesses, and of the star witness
resiling from his statements. Our precedents indicate that acquittal in a
criminal trial in such circumstances does not conclude a disciplinary
enquiry. In Southern Railway Officers Association v. Union of India,
this Court held:
“37. Acquittal in a criminal case by itself cannot be a ground
for interfering with an order of punishment imposed by the
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disciplinary authority. The High Court did not say that the said
fact had not been taken into consideration. The revisional authority
did so. It is now a well-settled principle of law that the order of
dismissal can be passed even if the delinquent official had been
acquitted of the criminal charge.”
In Inspector General of Police v. S. Samuthiram, a two-Judge
Bench of this Court held that unless the accused has an “honorable
acquittal” in their criminal trial, as opposed to an acquittal due to
witnesses turning hostile or for technical reasons, the acquittal shall not
affect the decision in the disciplinary proceedings and lead to automatic
reinstatement. But the penal statutes governing substance or procedure
do not allude to an “honourable acquittal”. Noticing this, the Court
observed:
“Honourable acquittal:
24.The meaning of the expression “honourable acquittal”
came up for consideration before this Court in RBI v. Bhopal Singh
Panchal [(1994) 1 SCC 541 : 1994 SCC (L&S) 594 : (1994) 26
ATC 619] . In that case, this Court has considered the impact of
Regulation 46(4) dealing with honourable acquittal by a criminal
court on the disciplinary proceedings. In that context, this Court
held that the mere acquittal does not entitle an employee to
reinstatement in service, the acquittal, it was held, has to be
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honourable. The expressions “honourable acquittal”, “acquitted of
blame”, “fully exonerated” are unknown to the Code of Criminal
Procedure or the Penal Code, which are coined by judicial
pronouncements. It is difficult to define precisely what is meant by
the expression “honourably acquitted”. When the accused is
acquitted after full consideration of prosecution evidence and that
the prosecution had miserably failed to prove the charges levelled
against the accused, it can possibly be said that the accused was
honourably acquitted.
25. In R.P. Kapur v. Union of India [AIR 1964 SC 787] it
was held that even in the case of acquittal, departmental
proceedings may follow where the acquittal is other than
honourable. In State of Assam v. Raghava Rajgopalachari [1972
SLR 44 (SC)] this Court quoted with approval the views expressed
by Lord Williams, J. in Robert Stuart Wauchope v. Emperor [ILR
(1934) 61 Cal 168] which is as follows:
“8. … ‘The expression “honourably acquitted” is one
which is unknown to courts of justice. Apparently it is a form
of order used in courts martial and other extrajudicial
tribunals. We said in our judgment that we accepted the
explanation given by the appellant, believed it to be true and
considered that it ought to have been accepted by the
government authorities and by the Magistrate. Further, we
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decided that the appellant had not misappropriated the monies
referred to in the charge. It is thus clear that the effect of our
judgment was that the appellant was acquitted as fully and
completely as it was possible for him to be acquitted.
Presumably, this is equivalent to what government authorities
term “honourably acquitted”.’”
26. As we have already indicated, in the absence of any
provision in the service rules for reinstatement, if an employee is
honourably acquitted by a criminal court, no right is conferred on
the employee to claim any benefit including reinstatement. Reason
is that the standard of proof required for holding a person guilty by
a criminal court and the enquiry conducted by way of disciplinary
proceeding is entirely different. In a criminal case, the onus of
establishing the guilt of the accused is on the prosecution and if it
fails to establish the guilt beyond reasonable doubt, the accused is
assumed to be innocent. It is settled law that the strict burden of
proof required to establish guilt in a criminal court is not required
in a disciplinary proceedings and preponderance of probabilities is
sufficient. There may be cases where a person is acquitted for
technical reasons or the prosecution giving up other witnesses since
few of the other witnesses turned hostile, etc. In the case on hand
the prosecution did not take steps to examine many of the crucial
witnesses on the ground that the complainant and his wife turned
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hostile. The court, therefore, acquitted the accused giving the
benefit of doubt. We are not prepared to say that in the instant case,
the respondent was honourably acquitted by the criminal court and
even if it is so, he is not entitled to claim reinstatement since the
Tamil Nadu Service Rules do not provide so.””
15.In Re Union of India v. Bihari Lal Sidhana [(1997) 4 SCC 385],
Deputy Inspector General of Police v. S. Samuthiram [(2013) 1 SCC 598],
and in several other decisions, the Hon'ble Supreme Court has reiterated
that departmental proceedings can go on irrespective of the outcome of the
criminal case, especially where the charge is one of dereliction of duty,
abuse of power, or failure to act in accordance with established procedure.
16.In the case at hand, the scope of the disciplinary proceedings is
confined to whether the officer acted bona fide, applied his mind, and
followed due process while exercising his powers. The departmental
enquiry is therefore perfectly maintainable in law and cannot be stifled
merely on the ground of acquittal in the subsequent criminal trial, which
did not even pertain to the individuals initially arrested by the officer.
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17.It appears that in the departmental proceeding, the Department
has examined seven witnesses, marked twelve documents and the
petitioner / delinquent officer has marked seven documents. The accused
arrested by the petitioner were examined as PW3 & PW5. The then VAO of
Sendamaram [PW2], in the preliminary enquiry, gave a statement that he
and the then VAO of Veerasigamani Village were forced to put their
signature on the statements alleged to have been recorded from Vellapandy
and Chelladurai. Though he turned hostile subsequently, the then VAO of
Veerasigamani Village [PW4] has supported the department's version. PW3
in the preliminary enquiry has deposed that he was tortured by the
delinquent officer and was made as an accused, however, he turned hostile
during the oral enquiry. PW5, in the oral enquiry, has deposed that he was
tortured and was falsely implicated as accused in Crime No.41 of 2011 on
the file of the Sendamaram Police Station.
18.It appears that PW3, Vellapandy / father of the deceased had
initially lodged a complaint before Puliyangudi Police Station about the
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missing of his daughter. He was later arrested by the delinquent officer. It
also appears that the Deputy Superintendent of Police has issued certain
instructions to the delinquent officer as follows:-
– to enquire the antecedents of the accused;
– to enquire more witnesses to establish the immoral conduct of the
accused;
– to collect the cell phone contacts of accused and deceased and establish
the facts whether any more accused involved in the murder;
– to collect more witnesses and to highlight the motive between the
accused and deceased other than the deceased family members to
strengthen the case;
– to enquire the people of the surrounding area since there was no eye
witness cited in the case.
19.However, the delinquent officer has failed to carry out the same.
Taking note of all these aspects, the Disciplinary Authority has imposed the
punishment and this Court, in the above discussions and following the
ratios referred supra, is not inclined to interfere with the same.
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Accordingly, this writ petition stands dismissed. There shall be no
order as to costs.
Index : Yes / No 27.01.2025
NCC : Yes / No
Internet : Yes
gk
To
1.The Additional Chief Secretary,
Government of Tamil Nadu,
Home (Pol.IV) Department,
Fort St.George, Chennai – 600 009.
2.The Director General of Police,
Tamil Nadu, Chennai.
3.The Additional Director General of Police,
Law and Order, Tamil Nadu,
Chennai – 600 004.
4.The Commissioner of Police,
Tirunelveli,
i/c The Deputy Inspector General of Police,
Tirunelveli.
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B.PUGALENDHI, J.
gk
27.01.2025
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