IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13.10.2009 C O R A M THE HONOURABLE MR.JUSTICE K.CHANDRU Writ Petition Nos.37254 and 34110 of 2006 (O.A.Nos.5052 and 5420 of 1998) V.D.Singaravelu ..PETITIONER in both the Writ Petitions. Vs. 1. The Superintendent of Police, Chengai (East) District, ST.Thomas Mount, Chennai-16. 2. The Deputy Inspector-General of Police, Chengai Range, Teynampet, ..Respondents in Chennai-18. W.P.No.37254/2006 3. The State of Tamil Nadu rep. By its Secretary to Government, Home (Police II) Department, Fort St. George, Chennai 600 009. 4. The Director General of Police, Admirality House, Chennai 600 002 ..Respondents in W.P.34110/2006 Prayer in W.P.No.37254/2006:- This writ petition has been originally filed before the Tamil Nadu Administrative Tribunal s O.A.No.5052 of 1998 and transferred to this Court and renumbered as W.P.No.37254 of 2006 under Article 226 of the Constitution of India to issue a writ of Certiorari to call for the records on the file of the respondents herein 1 and 2 in connection with their order passed in P.R.53/96 date 27.6.1997 and in C.No.A3/AP/33/98 dated 30.05.1998 and quash the same. Prayer in W.P.No.34110/2006:- This writ petition has been originally filed before the Tamil Nadu Administrative Tribunal s O.A.No.5420 of 1998 and transferred to this Court and renumbered as W.P.No.34110 of 2006 under Article 226 of the Constitution of India to issue a writ of Mandamus to direct the respondents herein to promote the https://hcservices.ecourts.gov.in/hcservices/ petitioner as Deputy Superintendent of Police (Cat.I) in pursuance of his inclusion in the regular panel of Inspectors of Police fit for appointment by recruitment by transfer as Deputy Superintendent of Police (Cat.I) for the year 1996-1997 approved in G.O.Ms.No.1612, Home (Police II) department dated 7.11.97 and grant him all consequential service and monetary benefits at par with his juniors. For Petitioner : Mr.Muthappan For Respondents : Mr.R.Neelakantan, Govt.Advocate O R D E R The petitioner was working as a Inspector of Police attached to Airport Security at Meenakbakkam. He filed O.A.Nos.5052 and 5420 of 1998 before the Tamil Nadu Administrative Tribunal. 2. In the first O.A., the petitioner challenged the order of punishment dated 27.06.1997 granted in P.R.No.53/96 passed by the first respondent and confirmed by the second respondent by order dated 30.05.1998. By the impugned order, the petitioner was issued with a punishment of postponement of increment for one year without cumulative effect. 3. The charge against the petitioner was that when the petitioner was working as an Inspector at F1 Police Station at Avadi on 27.04.1990 onwards. on 02.05.1990, a crime No.381/90 was registered under Section 174 Cr.P.C. Thereafter, it was altered as Section 302 IPC. The petitioner was charged that he did not conduct proper investigation which finally resulted in the dismissal of the case which was tried before the District Sessions Court at Chenglepet in Sessions case No.51/1992. The four accused in the criminal case were acquitted by the Sessions Court by a judgment dated 31.12.1992. It was stated that the Sessions Judge who tried the matter commented upon the petitioner about his not having conducted an identification parade of the accused so as to enable the witnesses to identify them. This was pointed out by the Deputy Superintendent of Police, Chenglepet Circle and based upon his report, the petitioner was issued with a charge memo under Rule 3(a). 4. An enquiry was directed to be conducted by the D.S.P., Avadi. The enquiry officer after analysing the materials placed before him found that the charges levelled against the petitioner were proved. Based upon the said report, the first respondent agreeing with the said report imposed the said punishment. The petitioner preferred an appeal dated 15.5.1998 to the second respondent. The second respondent rejected the said appeal. https://hcservices.ecourts.gov.in/hcservices/ 5. The petitioner had raised the following grounds in his O.A.,:- i)The enquiry officer did not give separate reasons for agreeing with the enquiry report and as per the circular of the Deputy General of Police, the enquiry report was not given in advance before its acceptance. ii) The Sessions Judge acquitted the accused only on the basis of no eye-witness and there is no adverse comments made against the petitioner. 6. The petitioner moved the Tribunal. The Tribunal, by its interim order dated 01.07.1998, granted an interim stay on the ground that the enquiry report was not furnished before its acceptance. Even though an application for vacating the stay was filed in M.A.No.5180/2000, the Tribunal did not take up the vacate stay application. 7. In view of the abolition of the Tribunal, the matter stood transferred to this court and was renumbered as W.P.No.37254 of 2006. 8. This court directed the learned Government Advocate to produce the copy of the Sessions Court judgment. The learned Government has also produced the copy of the Sessions Court judgment dated 31.12.1992 for perusal by this court. 9. On notice from the Tribunal, the respondents have filed a reply affidavit dated 25.01.1999. In the reply affidavit, it was stated that Rule 3(a) did not provide supply of enquiry officer's report before its acceptance by the Enquiry Officer. It is also brought to the notice that the circular relied upon by the petitioner is no longer in existence as the Director General of Police cancelled the said circular subsequently. 10. As to whether the enquiry officer should give separate reasons is also dealt with by the Supreme Court. The Supreme Court vide its judgment in National Fertilizers Ltd and another Vs. P.K.Khanna reported in (2005) 7 SCC 597 has held that if the disciplinary authority agrees with the enquiry officer, he need not give reasons. Only when he disagrees with the report, reasons will have to be given. 11. Further, the non-furnishing of the enquiry report will not vitiate the penalty order unless the petitioner establish prejudice. In the present case, the petitioner had not filed his appeal memo. Even otherwise there is no averment in the O.A., that he had raised the ground of prejudice before the appellate authority. The judgment of the Supreme Court in Haryana Financial Corporation Vs. Kailash Chandra Ahuja reported in (2008) 9 SCC 31 will squarely answer the present contention. https://hcservices.ecourts.gov.in/hcservices/ 12. The other submission that the Sessions Court did not comment upon the petitioner, it must be stated that the petitioner was examined as P.W.19 in the Sessions trial. In paragraphs 16, 18 and 22, the petitioner's evidence had been discussed. In paragraph 22, the Sessions Judge had clearly stated that the petitioner in his deposition had stated that when P.W.7 went to complete his morning ablutions along with P.W.8, they saw two persons throwing gunny bag and it was recorded in police investigation. It is further stated that P.W.7 in his evidence submitted that he did not know the names of the accused but he gave their identity. But before the court he said that after the incident, he saw them only during the court proceedings, thereby making the case weak. If only the petitioner had conducted an identification parade and produced that report, this lacunae would not have been found by the Sessions Judge. Hence the petitioner has no case. 13. In the O.A.No.5420 of 1998, the petitioner sought for the promotion to the post of Deputy Superintendent of Police, Category I pursuant of his inclusion in the regular panel of Inspectors of Police fit for appointment for the year 1996-1997and approved in G.O.Ms.No.1612, Home (Police II0 Department dated 7.11.97 and claimed consequential service and monetary beenfits. 14. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was renumbered as W.P.No.34110 of 2006. 15. It is an admitted case that the petitioner was imposed with the punishment of postponement of increment during the relevant time. Therefore, his name was omitted. Merely because the petitioner had obtained interim stay of the penalty order, that by itself cannot be a ground for granting him promotion. The stay granted by the Tribunal will not make the proceedings non existence. This court has upheld the validity of the Government circular which stipulates that even if disciplinary proceedings are stayed by Tribunal, the case of the individual will not be considered for promotion vide its order dated 29.09.2006 in W.P.No.22059 of 2006 in the matter of V.Chandra Record Clerk Vs. Government of Tamil Nadu reported in Manu/TN/9355/2006. 16. In the light of the above, the writ petitions stand dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nvsri https://hcservices.ecourts.gov.in/hcservices/ To 1. The Superintendent of Police, Chengai (East) District, ST.Thomas Mount, Chennai-16. 2. The Deputy Inspector-General of Police, Chengai Range, Teynampet, Chennai-18. 3. The Secretary to Government of Tamil Nadu, Home (Police II) Department, Fort St. George, Chennai 600 009. 4. The Director General of Police, Admirality House, Chennai 600 002. + 1 c.c.to Mr. T. Ayngaraprabhu, Advocate. S.R.No.53573. + 1 c.c. to The Government Pleader. S.R.No.53710. W.P.Nos.37254 and 34110 of 2006 (O.A.Nos.5052 and 5420 of 1998) RB (CO) GSK 26.10.2009. https://hcservices.ecourts.gov.in/hcservices/