IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.08.2009 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.5933 OF 2007 S.Muniraj ... Petitioner Vs. 1.The Superintendent of Police Coimbatore District. 2.The Deputy Inspector General of Police Coimbatore Range, Coimbatore. ... 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.301 of 2002 from the file of Tamil Nadu Administrative Tribunal with a prayer to call for the records of the respondents in connection with the impugned order passed by the first respondent in Na.Ka.No.JI/PR 135/2000 dated 24.08.2001 and quash the same and direct the respondent to reinstate the applicant into service and grant him all consequential service and monetary benefits. For Petitioner : Mr.K.Venkatramani Senior Counsel for Mr.M.Muthappan For Respondents : Mrs.C.K.Vishnupriya, Additional Government pleader O R D E R The petitioner entered into the service as Grade – II Police Constable in Coimbatore City (Armed Reserve) in 1986. He became Grade – I Police Constable on upgradation, in 1994. In 1995, the Government promoted him as Head Constable by way of accelerated promotion for his courageous act for nabbing an hard core terrorist. 2.The petitioner was in-charge of the Thudiyalur Police Station from 09.00 p.m. on 10.01.1999 to 08.00 a.m. on 11.01.1999. Another Head Constable viz., Mr.Myilsamy was the only other person posted in the Police Station during the same time between 09.00 https://hcservices.ecourts.gov.in/hcservices/ p.m. on 10.01.1999 and 08.00 a.m. on 11.01.1999. He was a Para Police Constable on that day. The Inspector was on leave during that time and other Police Constables were on night patrolling duty in the villages in and around the Police Station. The Sub- Inspector of Police was at home. 3.While he was serving as Head constable in Thudiyalur Police Station, Coimbatore, he was compulsorily retired from service by an order dated 24.08.2001 of the first respondent, by way of punishment. The said order is challenged in O.A.No.301 of 2002 (W.P.No.5933 of 2007). 4.Heard the submissions made by Mr.K.Venkatramani, learned Senior counsel for the petitioner and Mrs.C.K.Vishnupriya, learned Additional Government Pleader for the respondents. 5.The undisputed facts, for better appreciation of the facts are as follows: (a) One Mr.Paraman, who is the neighbour to the shop keeper Mr.Kasparaj, noticed that two persons attempted to break open the shop in VOC Nagar, Coimbatore at about 02.00 a.m. on 11.01.1999. He immediately went to the residence of Mr.Kasparaj and informed the same. (b) When both of them came to the shop, one Arumugam and another person, who involved in the attempt to break open the shop, flew from the scene, and the other person escaped, while Mr.Arumugam hit against a standing lorry and fell down. He was apprehended and tied in an electric lamp post. (c) Mr.Kasparaj went to inform the matter to the President of the Merchants' Association in a two wheeler. But the President was not available. Then they met the other office bearer Mr.Janakiraman (P.W.4) and informed him about the incident. (d) In the meantime, Mr.Kasparaj along with Mr.Paraman informed the Councilor of the area Mr.Nanjappan about the incident, through one Mr.Jayaraj. (e) Mr.Jayaraj told Mr.Kasparaj that he passed on the message to the Councilor through phone and the Councilor had in turn agreed to pass on the message to the Thudiyalur Police Station. (f) Since no police arrived to the scene of occurrence, Mr.Janakiraman informed Thudiyalur Police Station. https://hcservices.ecourts.gov.in/hcservices/ (g) According to Mr.Paraman, it was at about 05.20 a.m. that Mr.Janakiraman telephoned to Thudiyalur Police Station, informing the incident. At the same time, Mr.Janakiraman informed the matter to the Police Control Room. (h) During the night time between 02.00 a.m. to 05.30 a.m., the local people of the area is said to have beaten the said Arumugam, who was tied in the electric lamp post, according to Mr.Kasparaj and Mr.Paraman. They stated that the said Arumugam challenged the people and also used some abusive words, which provoked them to beat him. (i) On receipt of the information at about 05.30 a.m., the petitioner recorded the same in the General Diary and also informed the same to the Sub-Inspector, who was at home. (j) The Head Constables viz., Asaithambi and Satyamurthy, who were on patrol duty returned back at 05.30 a.m. to the police station. They were sent to the place of occurrence at VOC Nagar by the petitioner to take appropriate action. (k) On receiving the information through Police Control Room, the Assistant Commissioner of Police arrived at the spot earlier because of his close proximity and also because he was in possession of a vehicle. He arrived at the spot between 05.35 a.m. and 06.15 a.m. and after making certain enquiries, he took the injured Arumugam and three others viz., Mr.Kasparaj, Mr.Paraman and one Mr.Savarimuthu in the police jeep. (l) The Head Constables telephoned the petitioner, on reaching the scene of occurrence at about 07.00 a.m. that already the Assistant Commissioner of Police came to the spot and took the injured person in his jeep. (m) The Assistant Commissioner of Police mistook that the VOC Nagar comes under the jurisdiction of Saibaba Colony Police Station, though Mr.Kasparaj told him that the area comes under the jurisdiction of Thudiyalur Police Station. Hence he took the injured person to the Saibaba Colony Police Station and thereafter finding that the said Police Station did not have jurisdiction, he took them to the Thudiyalur Police Station at 07.20 a.m. (n) As stated above, the Head Constables sent by the petitioner, arrived at the scene of occurrence after the Assistant Commissioner of Police left from the scene of occurrence with the injured person along with others. (o) Likewise, the Councilor, who is said to have informed the Police Station at about 02.00 a.m. arrived at the scene of https://hcservices.ecourts.gov.in/hcservices/ occurrence at 06.30 a.m., i.e. only after the Assistant Commissioner of Police took away the injured person. (p) On receipt of information from the petitioner, the Sub-Inspector of Police arrived at the Police Station at 07.00 a.m. and as soon as the injured person was brought to the Police Station by the Assistant Commissioner of Police, the Sub-Inspector of Police sent the injured person to the hospital, without even observing the formalities of registering a case and issuing the medical memo, so as to give immediate treatment to the injured person. The Sub-Inspector sent the injured person to the hospital along with the complainants, viz., Mr.Kasparaj, Mr.Paraman and Mr.Savarimuthu, who were later made accused in the criminal case under Section 302 IPC, for causing death of Mr.Arumugam (injured person). The Sub-Inspector of Police directed the petitioner to follow them. Accordingly, he did. (q) Unfortunately, the injured person died while he was taken to the hospital, due to the severe beating in the night by the local people of VOC Nagar. (r) The death of the person in such circumstances led to an enquiry by Revenue Divisional Officer, under Police Standing Order No. 145 and the Revenue Divisional Officer gave a report to the District Collector on 21.09.1999. In the said report, it is stated that if the petitioner acted immediately on receipt of the information at around 02.15 a.m. on 11.01.2009 about the apprehension of one Mr.Arumugam for his alleged involvement in an attempt to break open a shop, the life of the said person could have been saved. The report also stated that the injured was sent to the hospital, not along with the Police Constables, but, on the other hand, along with the complainants, who brought the injured person to the Police Station and who later were prosecuted under Section 302 IPC for causing death of Mr.Arumugam. (s) The said report of the Revenue Divisional Officer was forwarded by the District Collector to the Government on 29.12.1999 and the Government in G.O.(D)No.769, Public (Law and Order - A) Department, dated 09.06.2000, ordered prosecution against Mr.Kasparaj and Mr.Paraman for causing death of the deceased Arumugam and departmental action against the petitioner as well as the Sub-Inspector of Police, based on the report of the Revenue Divisional Officer. That is, the entire disciplinary action against the petitioner is based on the premises that he received a message through phone call at about 02.15 a.m. about the alleged apprehension of one Mr.Arumugam while attempting to break open the shop at V.O.C. Nagar and he failed to act on the same. https://hcservices.ecourts.gov.in/hcservices/ 6.In the said backdrop, a charge memo dated 17.08.2000 was issued by the first respondent under Rule 3(b) of the Tamil Nadu Police Subordinate Service Rules and the charges framed against the petitioner are extracted here-under: "m. Fw;wk;: 1. fle;j 10.1.1999 md;W ,ut[ 02.00 kzpastpy; JoaY}h; fhty;epiya vy;iyf;Fl;gl;l tp.x.rp. efhpy; cs;s xU kspif filapy; jpUl Kad;w MWKfk; vd;gth; gpogl;L fl;o itf;fg;gl;Ls;sJ Fwpj;J bjhiyngrp \yk; JoaY}h; fhty;epiyaj;jp;y; ,ut[ 09.00 kzpKjy; kWehs; fhiy 08.00 kzptiu gzpapypUe;j ckf;F ,ut[ 02.00 kzpKjy; jfty; mDg;gg;gl;L ,Ue;Jk;, nky; mjpfhhpfspd; ftdj;jpw;F cldoahf bfhz;Ltuj;jtwpa flikapypUe;J jtwpa bray;. 2. nkw;go rk;gtk; bjhlh;ghf rk;gt ,lj;jpypUe;J cldoahf fhtyh;fis mDg;g ve;jtpjkhd eltof;ifa[k; nkw;bfhs;shky; rk;ge;jg;gl;l egUf;F kUj;Jt rpfpr;ir mspf;f kUj;Jtkidf;F bghWg;ghd fhtyh;fs; \yk; mDg;gpitj;J chpa neuj;jpy; kUj;Jt rpfpr;ir mspf;fg;glhjjd; \yk; mtuJ ,wg;gpw;F fhuzkhf ,Ue;jJ xG';fPdkhd bray;". 7.The crux of the first charge was that the petitioner received a phone call around 02.00 a.m. on 11.01.1999 about the alleged incident. But he failed to act on the same, by bringing to the notice of the higher authorities. The second charge was that he failed to send Police Constables to the scene of occurrence and that he failed to send the injured person to hospital for treatment at proper time along with responsible Police Constables and that thereby he became responsible for the death of the injured person. 8.An enquiry was held by one Deputy Superintendent of Police. In the enquiry, 12 witnesses were examined and 17 documents were marked as exhibits, on the side of the Department. The petitioner made a statement in the enquiry, but he was not subjected to cross examination on the statement. 9.The Enquiry Officer submitted a report dated 14.12.2000 holding that the charges were proved against the petitioner. Based on his findings, the petitioner was imposed the punishment of compulsory retirement by the impugned order dated 24.08.2001 of the first respondent, which is challenged in the present writ petition. 10.The learned Senior Counsel for the petitioner has broadly made three submissions. He submits that the Enquiry Officer as well as the Disciplinary Authority, have erroneously proceeded that the petitioner received phone call at about 02.00 a.m. on https://hcservices.ecourts.gov.in/hcservices/ 11.01.1999 from P.W.5 - Mr.Nanjappan, the Councilor of the area, about the incident. Solely based on the oral evidence of P.W.5 – Mr.Nanjappan, Councilor, without taking note of the fact that his evidence is contrary to the documentary evidence viz., the General Diary, wherein, the events of the night were recorded by the petitioner and also the evidence of P.W.10 - Mr.Myilsamy, Head Constable, who was examined as a departmental witness and who categorically spoke that no phone call was received at about 02.00 a.m., a finding was arrived at that the petitioner received phone call at about 02.00 a.m. on 11.01.1999. The second and third submissions relate to charge No.2. It is submitted that the charge itself could not be made against the petitioner. On 11.01.1999 at 07.00 a.m, the Sub-Inspector of Police, who arrived at the Police Station, took over the charge from the petitioner and in fact, he only sent the injured person to the hospital and therefore, the charge itself is defective. Thirdly, according to the learned Senior counsel for the petitioner, the findings of the Enquiry Officer was that the petitioner was not found in the hospital along with Mr.Arumugam, when the Doctor in the emergency ward, declared Mr.Arumugam, the injured person, dead. It is submitted that no such charge was framed in the charge sheet and therefore, the Enquiry Officer and the Disciplinary Authorities committed error in recording a finding against something which was not a charge at all. Such an action amounts to violation of principles of natural justice. It is further submitted that the Tamil Nadu Administrative Tribunal quashed the punishment imposed on the Sub-Inspector of Police for the similar charge as charge No.2 that was alleged against the petitioner. 11.The learned Senior counsel for the petitioner submits that if at all any one has to be blamed, it is only the Assistant Commissioner of Police, who arrived the around 05.45 a.m. and failed to take the injured person straight away to the hospital and to give him treatment. If he acted prudently by giving immediate treatment to the injured person, the injured person could have been saved. In fact, the learned Senior counsel for the petitioner submits that the Sub-Inspector of Police acted strictly without loss of any time by sending him immediately, without even observing the formalities as stated above. However, the Sub-Inspector of Police and the petitioner faced the charges, while the Assistant Commissioner of Police was let off without even any proceedings against him. 12.The learned Senior counsel for the petitioner submits that from the facts narrated above, P.W.1 – Mr.Kasparaj admits that he did not inform the Police Station directly about the incident. He informed the incident through one Mr.Jayaraj to the Councilor Mr.Nanjappan. The other witnesses viz., P.W.2 – Mr.Paraman, P.W.3 – Mr.Savarimuthu, who were also at the scene of occurrence after https://hcservices.ecourts.gov.in/hcservices/ 02.00 a.m. did not also phone to the police station. The only person, who is said to have informed the Thudiyalur Police Station at about 02.00 a.m. was Mr.Nanjappan – the Councilor, on getting telephonic information through Mr.Jayaraj. The other person viz., Mr.Janakiraman, the office bearer of the Merchants' Association, telephoned the Police Station at 05.20 a.m. as seen from the evidence of Mr.Paraman. 13.Mr.Nanjappan, who was examined as P.W.5, deposed that he telephoned at about 02.00 a.m to Thudiyalur Police Station and that the Constable, who attended the phone call, informed him that other Police Constables were left for night patrolling and as soon as they returned, he would send a Police Constable to fetch the accused. 14.The learned Senior counsel for the petitioner submits that relying solely on his evidence, the Enquiry Officer and the Disciplinary Authority came to the erroneous conclusion that the first charge was established. 15.Though such a submission is attractive, I am not an appellate authority to re-appreciate the evidence and to make a detailed analysis of the evidence to come to the conclusion. Therefore, based on this submission alone, the evidence of Mr.Nanjappan could not be rejected by the writ Court to hold that the first charge was not established. However, the learned Senior counsel for the petitioner submitted that the Enquiry Officer as well as the Disciplinary Authority failed to take into account the documentary evidence viz., General Diary which was marked as Ex.P.1 in the enquiry. He further submits that the documentary evidence would always prevail over the oral evidence. If the documentary evidence is available, the oral evidence contrary to the documentary evidence has to be rejected. The learned Senior counsel for the petitioner submits that as per the General Diary, no phone call was received at about 02.00 a.m. It should be presumed that noting in the documents are true and no motive could be alleged on the petitioner that he deliberately failed to record a phone call at about 02.00 a.m., since nobody could visualize that the matter could have become a disciplinary proceeding subsequently. 16.In this connection, learned Senior counsel for the petitioner cites a decision reported in 1994 (II) L.L.N. 220 (BRAKES INDIA LTD., VS. ASSISTANT COMMISSIONER OF LABOUR) that oral evidence cannot prevail over documentary evidence. 17.Furthermore, the learned Senior counsel for the petitioner submits that apart from not considering the documentary evidence viz., the General Diary, the Enquiry Officer and the Disciplinary Authority also failed to take into account the https://hcservices.ecourts.gov.in/hcservices/ deposition of P.W.10 in favour of defence. P.W.10 – Mr.Myilsamy – Para Constable, deposed that no phone call was received at about 02.00 a.m and on the other hand, he deposed that a phone call was received only at 05.20 a.m. The learned Senior counsel for the petitioner submits that Mr.Myilsamy was not examined as a defence witness and on the other hand, he was examined as a witness of the Department. If a Department witness gave evidence in favour of defence, that would not be ignored by the Enquiry Officer and by the Disciplinary Authority. If they failed to take into account the deposition of prosecution witness in favour of the defence, the findings of the Enquiry Officer has to be characterised as perverse and the impugned order of the first respondent, based on such finding has to be set aside. 18.In support of his submission, the learned Senior counsel for the petitioner relied on a decision of the Honourable Supreme Court in M.V.BIJLANI VS. UNION OF INDIA AND OTHERS reported in 2006 (5) SCC 88, wherein, the Honourable Apex Court held that the deposition of a departmental witness in favour of defence has to be considered and non-consideration of the same would render the findings of the Enquiry Officer as well as the Disciplinary Authority vitiated. 19.Therefore, if the submission of the learned Senior counsel for the petitioner is confined only seeking to analyse the evidence, I could have simply rejected the same as I cannot substitute my opinion to that of the Enquiry Officer / Disciplinary Authority while exercising jurisdiction under Article 226 of the Constitution of India. But the learned Senior counsel for the petitioner submits that the failure on the part of the Enquiry Officer and the Disciplinary Authority to take into account the documentary evidence viz., the General Diary and also the evidence of prosecution witness in favour of defence would render the finding of guilt perverse and that submission finds acceptance to me. As far as the second charge is concerned, the learned Senior counsel for the petitioner submits that when the same charge was made against the Sub-Inspector of Police, the Tribunal, quashed the punishments imposed on the Sub-Inspector of Police, based on the said charge. 20.The learned Senior counsel for the petitioner submits that charge No.2 as framed in the charge sheet could not be made against the petitioner, since the Sub-Inspector of Police took over the charge of Police Station at 07.00 a.m and he only sent the injured person to the hospital. The learned Senior counsel for the petitioner submits that the findings of the Enquiry Officer that the petitioner was not present at the hospital, when the Doctor declared the death of the injured person have to be ignored as the same was not the charge alleged in the charge memo. The petitioner https://hcservices.ecourts.gov.in/hcservices/ was not found at that place is not a charge made in the charge sheet. If the petitioner was not put to notice about the charge, then the Enquiry Officer is not justified in rendering a finding on a different charge. Such a finding is violative of principles of natural justice. 21.In support of his submission, the learned Senior counsel for the petitioner relied on a decision of the Honourable Apex Court in M.V.BIJLANI VS. UNION OF INDIA AND OTHERS reported in 2006 (5) SCC 88 and the relevant portion of the said judgment is extracted here-under: "25.It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with". 22.The learned Senior counsel for the petitioner also submits that the concerned Medical Officer, who declared the death of the injured person, was also not examined in the departmental enquiry and this factor also should be taken note of by this Court. However, the Enquiry Officer recorded a finding based on the deposition of Mr.Kasparaj. He further submits that the evidence of Mr.Kasparaj cannot be relied on, since he was an accused by the very same Department for causing the death of the injured person and he faced prosecution under Section 302 IPC in S.C.No.435 of 2002 before the First Additional Sessions Judge cum Chief Judicial Magistrate, Coimbatore. 23.The learned Additional Government Pleader for the respondents submits that the petitioner was given opportunity in the enquiry and the charges were held to be proved in the enquiry conducted in accordance with the Service Rules. There is no https://hcservices.ecourts.gov.in/hcservices/ infirmity in the findings recorded by the Enquiry Officer. Based on the proved misconduct, the first respondent imposed the punishment of compulsory retirement, which could not be normally interfered by this Court, in exercise of its jurisdiction under Article 226 of the Constitution of India. 24.I find force in the submissions made by the learned Senior counsel for the petitioner. When the charge was onething, the Enquiry Officer could not record the finding on a different matter. Further, as the learned Senior counsel for the petitioner submitted, the Department had no explanation for not examining the Medical Officer. In these circumstances, the findings regarding charge No.2 also should go. 25.The learned Senior counsel for the petitioner submits that in the event of the impugned order, imposing the punishment of compulsory retirement is quashed, the petitioner need not be paid wages for the period on the principle of "no work no pay" and the petitioner is satisfied if the period of non-employment is counted for fixation of pay and for all other benefits including for computing terminal benefits and an affidavit of the petitioner to that effect is also filed. 26.In these circumstances, the impugned order is quashed and the first respondent is directed to reinstate the petitioner in service within a period of four weeks from the date of receipt of a copy of this order, without any backwages. However, the period of non-employment will be counted for all purposes. 27.With the above observation and direction, the writ petition is partly allowed. No costs. TK Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The Superintendent of Police Coimbatore District. 2.The Deputy Inspector General of Police Coimbatore Range, Coimbatore. + 1 cc to Government Pleader, SR No.41943 + 1 cc to Mr.T.Ayngaraprabhu, Advocate SR No.42008 W.P.NO.5933 OF 2007 MRD(CO) SR/9.12.2009 https://hcservices.ecourts.gov.in/hcservices/