IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.07.2011 CORAM THE HONOURABLE Mr.JUSTICE D.HARIPARANTHAMAN W.P.No.7580 of 2007 and M.P.No.1 of 2009 (O.A.No.4609 of 2002) J.Sivakumar ... Petitioner(Applicant) Vs 1.The Inspector General/Commissioner of Police, Coimbatore City. 2.The Director General of Police, Chennai-4. 3.The Secretary to Government, Home (Police) Department, Chennai-9. ... Respondents(Respondents) PRAYER: This Writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.4609 of 2002 on the file of Tamil Nadu Administrative Tribunal, to call for the records connected in Pro.No.PR111/F1/95, RC.No.249821/AP1(2)/97, and G.O.I(D) No.393, dated 19.12.2005, 12.02.1998 and 30.06.1998 passed by the first, second and third respondents and quash the same with all consequential benefits. For Petitioner : Mr.K.Venkatramani Senior Counsel for Mr.M.Muthappan For Respondents : Mr.R.Ravichandran, Additional Government Pleader ORDER The Original Application in O.A.No.4609 of 2002 before the Tamil Nadu Administrative Tribunal is now W.P.No.7580 of 2007 before this Court. 2.The petitioner was appointed as Sub-Inspector of Police on 27.09.1987. He was issued with a charge memo dated 08.06.1995 under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Disciplinary & Appeal) Rules. The charges made in the charge memo are as follows: https://hcservices.ecourts.gov.in/hcservices/ "1.Criminal misconduct in having illicit intimacy with one Sudha W/O.N.Sivakumar of Madras and living in a Lodge at Coimbatore after driving away his legally wedded wife with her two male children to her parents house. 2.Reprehensible conduct in having misbehaved with his wife Tmt.Rukmani and her father Thiru.Krishnasamy in a disorderly manner and exchanged blows when they questioned about his misconduct on 11.04.95 at about 06.30 hrs at Vasantham Lodge, Coimbatore." 3. The crux of the allegation was that the petitioner had illicit intimacy with one Sudha, W/o.N.sivakumar and living in a Lodge at Coimbatore, after driving away his legally wedded wife. Further allegation was that when the petitioner's father-in-law questioned him about his activities, the petitioner assaulted him. But, in the enquiry, the witnesses namely Sudha, his wife Rukmani and the petitioner's father-in-law have given evidence in favour of the petitioner and disowned their statements made in the preliminary enquiry. Based on the enquiry, the Enquiry Officer found him guilty. Based on such finding, the petitioner was imposed with a punishment by order dated 19.12.1995. The punishment was reduction of time scale of pay for two years without cumulative effect. The petitioner preferred an Appeal to the Appellate Authority, but the Appellate Authority rejected the appeal confirming the order of the first respondent dated 12.02.1998. Thereafter, he preferred Review Petition to the Government and the Government rejected the said Review Petition by an order dated 30.06.1998. Aggrieved by the said order, the petitioner has filed Original Application before the Tamil Nadu Administrative Tribunal, Chennai, praying to quash the orders of the respondents. 4. A counter affidavit has been filed by the respondents refuting the allegations. 5.The main contention of the learned Senior counsel is that the petitioner was found guilty based on the statement made by the witnesses during the preliminary enquiry behind the back of the petitioner and those witnesses disowned those statements in the oral enquiry. Relying on those statements made in the preliminary enquiry to find the petitioner guilty, is opposed to the order of this Court in W.P.No.14193 of 2006, dated 09.04.2007 in K.Palani vs. State of Tamil Nadu rep. by the Secretary to Government, Home Department, Fort St. George, Madras-9. 6. On the other hand, the learned Additional Government Pleader for the respondents sustained the impugned order based on the counter affidavit. https://hcservices.ecourts.gov.in/hcservices/ 7.I have considered the submissions made on either side and perused materials available on record. 8.On a perusal of the material evidence available on record, I find that the findings of the Enquiry Officer is based on the statement made by the witnesses namely Sudha, Rukmani and Krishnasamy in the preliminary enquiry and those witnesses have not spoken about the alleged misconduct of the petitioner in the oral enquiry. They did not confirm their statements made in the preliminary enquiry. In those circumstances, the Enquiry Officer was not correct in finding the petitioner found guilty of the charges based on those statements. All the authorities have failed to take note of the fact that the witnesses have become hostile and they did not confirm the statements made in the preliminary enquiry. The learned Single Judge of this Court in W.P.No.14193 of 2006, dated 09.04.2007, allowed the writ petition in similar circumstances and it is directly applicable to the facts of this case. Paragraphs 8 to 13 of the said order is extracted hereunder: "8.Whether the statements made during the preliminary enquiry not corroborated by cross examination can be validly relied on by the Disciplinary authority was considered by the Supreme Court in the decision reported in (2004) 10 SCC 87 (Union of India v. Mohammed Ibrahim). The Honourable Supreme Court held that the order of dismissal was vitiated as the findings have been based on consideration of statement of the persons examined during the preliminary enquiry and for the said fact the Tribunal set aside the order of dismissal, which was upheld by the High court and there is no error in the order setting aside the dismissal order. 9.A Division Bench of this Court by Judgment dated 22.2.2005 in W.P.Nos.29862 & 32581 of 2002 (The Deputy Inspector General of Police, Villupuram and others v. V.Vanniaperumal and others) upheld the order of the Tribunal which set aside the order of removal from service. Paragraphs 6 and 8 of the judgment can be usefully referred to, which reads thus, "6.We have carefully considered the relevant materials and the rival contentions. We have already referred to the charges levelled against the applicants. It is also relevant to note that apart from the applicants two more officers have also been implicated along with them. They are one Sattanathan, Sub-Inspector of Police and Antony, Inspector of Police. It is brought to our notice that Sattanathan is no more and so far as the other https://hcservices.ecourts.gov.in/hcservices/ officer Antony is concerned lesser punishment has been imposed. Now we are concerned with the charges levelled against both the applicants. In the light of the conclusion arrived at by the Tribunal, we perused the finding of the Enquiry Officer. It is not in dispute that all the prosecution witnesses except PW.3, who is none other than the Deputy Superintendent of Police, the other witnesses viz., P.Ws.1,2,4 and 5 turned hostile before the Enquiry Officer and not supported their earlier statement made at the preliminary enquiry. The Enquiry Officer having noted the above aspect curiously submitted a report holding that all the three charges levelled against them are proved based on the preliminary enquiry. 7.......... 8.In our case, we have already referred to the fact that the prosecution witnesses viz., P.Ws.1,2,4 and 5 turned hostile and not supported their preliminary version. However, the Enquiry Officer basing reliance on their earlier statement in the preliminary enquiry found that all the charges levelled against them are proved. In the light of the decision of the Supreme Court referred to above, after full-fledged enquiry was held the preliminary enquiry had lost its importance. Further, we find no substance or material to arrive at a conclusion that "since all the three counts were proved by the prosecution beyond reasonable doubts, convincingly, I agree with the findings of the Enquiry Officer, ...". We are satisfied that there is no material to arrive at such a conclusion by the Deputy Inspector General of Police, while passing an order removing the applicants from service. All these aspects have been considered by the Tribunal in a proper manner and there is no acceptable material or evidence to take different view as that of the Tribunal. We find no merits in both the writ petitions. Accordingly, they are dismissed. No costs. Consequently, the connected miscellaneous petitions are dismissed." The said conclusion was arrived at by the Division Bench based on the decision of the Honourable Supreme Court reported in 1997 I SCC 299 (Narayana Dattatraya Ramteerthakhar v. State of Maharashtra). https://hcservices.ecourts.gov.in/hcservices/ 10.The above referred decision of the Division Bench was followed by me in the order dated 15.2.2006 in W.P.No.27019 of 2005 (B.Bala Murugan v. The Inspector General of Police, Madurai-2 and Two others), wherein the order of punishment was set aside. 11.I have also followed the above decisions and allowed similar writ petition and the same is reported in (2006) 2 MLJ 202 (T.Pitchai v. Deputy Inspector General of Police, Tirunelveli) by setting aside the order of dismissal with a direction to reinstate the petitioner therein with all service benefits. 12.In the decision reported in (2006) 3 MLJ 900 (H.C. Lenin v. Commissioner of Police), A.Kulasekaran, J., has taken a similar view following the decision of the Honourable Supreme Court reported in AIR 1999 SC 677 = (1999) 2 SCC 10 (Kuldeep Singh v. Commissioner of Police and others), wherein the Honourable Supreme Court in paragraphs 32 and 33 held thus, "32.In State of Mysore v. Shivabasappa Shivappa Makapur, the witness was not examined in the presence of the delinquent so far as his examination-in-chief was concerned and it was his previous statement recorded at an earlier stage which was brought on record. That statement was put to the witness who acknowledged having made that statement. The witness was thereafter offered for cross-examination and it was held that although the statement (examination-in-chief) was not recorded in the presence of the delinquent, since the witness had been offered for cross- examination after he acknowledged having made the previous statement, the rules of natural justice were sufficiently complied with. 33.In Kesoram Cottton Mills Ltd. v. Gangadhar and State of U.P. v. Om Prakash Gupta the above principles were reiterated and it was laid down that if a previous statement of the witness was intended to be brought on record, it could be done provided the witness was offered for cross- examination by the delinquent." 13.In view of the above cited settled position of law on this aspect and having regard to the fact that there is no controversy about the enquiry officer's finding of guilt of the petitioner solely relying upon the statement given https://hcservices.ecourts.gov.in/hcservices/ before the Revenue Divisional Officer during the preliminary enquiry and there was no occasion to cross examine the said witness during the preliminary enquiry, I am of the view that the charges framed against the petitioner cannot be said to be validly proved. Hence the petitioner is bound to succeed in this writ petition challenging the order of dismissal passed based on the erroneous findings given by the Enquiry Officer in his report. The consequential orders passed by the appellate authority, revisional authority and the Government in the mercy petition are also set aside." 9. As per the order of this Court referred to above, I am of the view that the charges framed against the petitioner cannot be said to be validly proved. Hence, the petitioner is bound to succeed in this writ petition challenging the orders passed by the respondents based on the erroneous findings given by the Enquiry Officer in his report. The consequential orders passed by the Appellate Authority and the Government are also set aside. 10. In view of the order of this Court in W.P.No.14193 of 2006, dated 09.04.2007, the impugned orders are quashed. The writ petition is allowed in the above terms. Consequently, connected Miscellaneous Petition is closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar mps To 1.The Inspector General/Commissioner of Police, Coimbatore City. 2.The Director General of Police,Chennai-4. 3.The Secretary to Government, Home (Police) Department,Chennai-9. 1 cc To The Government Pleader, SR.44220 1 CC to Mr.M.Muthappan, Advocate, S.R.No. 44056 W.P.No.7580 of 2007 and M.P.No.1 of 2009 (O.A.No.4609 of 2002) KSK(CO) SRA(16/8/2011) https://hcservices.ecourts.gov.in/hcservices/