IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 21.02.2008 CORAM THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR. JUSTICE M.VENUGOPAL W.A. NO. 189 OF 2008 AND M.P. NO. 1 OF 2008 S.Rajapandi .. Appellant/Petitioner - Vs - 1. The Superintendent of Police District Police Office Tiruvannamalai. 2. The Deputy Inspector General of Police, Vellore Range Vellore. .. Respondents/Respondents Writ Appeal filed against the order dated 14th Sept., 2007, passed by learned single Judge in W.P. No.32809 of 2005 (T) (O.A. No.2683 of 2003). Petition filed under Article 226 of the Constitution of India, to call for the records relating to (i) D.O.No.872 of 2000 C.No.H1/PR.26/2000 dated 31.10.2000 of the first respondent; (ii) proceedings of the second respondent in C.No.B1/AP/ 117/2000 dated 05.01.2001; and (iii) proceedings of the first respondent bearing No.H1/PR26/2000 dated 25.07.2002 and quash the above three proceedings Consequently, (i) issue a direction to the respondents to issue orders stating that the applicant Thiru S. Rajapandi, be reinstated in service, with immediate effect as Grade I Police Constable; (ii) that the period of suspension from 28.03.2000 to actual date of joining duty after reinstatement be treated as duty for all purposes with attendant, service and monetary benefits. For Appellant : Mr. K.S. Govinda Prasad For Respondents: Mr. D.Srinivasan, AGP(W) https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT S.J.MUKHOPADHAYA, J. This appeal has been preferred by the writ petitioner against the judgment dated 14th Sept., 2007, passed by learned single Judge in W.P. No.32809/05. That was a writ petition registered on transfer from Tamil Nadu Administrative Tribunal, wherein order of punishment of dismissal from service was challenged and upheld by learned single Judge. 2. The main plea as was taken by the writ petitioner before learned single Judge as also before this Court is that, he having acquitted in the criminal proceeding, the order dated 31st Oct., 2000 imposing punishment of dismissal from service should be declared as illegal and has to be set aside. 3. The petitioner, who was a Grade-I police constable under the State was proceeded departmentally vide charge memo No.C.No. H1/PR.26/2000 dated 5th May, 2000. Charges on two counts were levelled against him for the following alleged acts of omission and commission :- i) The first charge was that one Mr.Karunanidhi, Judicial Magistrate-cum-District Munsif, Chengam, who boarded bus bearing Registration No.TN-25-A-6935 at Tiruvannamalai bus stand for Chengam, was sitting in the front seat in the bus. Near Gandhi statue, while the bus stopped for passengers, the petitioner got into the bus, came near the Magistrate and asked him to go and sit in the back seat thereby making space for him in the seat occupied by the Magistrate. When the bus driver saw this and asked him not to disturb the Magistrate informing that he is Chengam Magistrate, the petitioner quarrelled with the bus driver and then came to the Magistrate, asked him to leave the seat and slapped him and got down from the bus. The petitioner also threatened the Magistrate saying that he would kill him there itself and used unparliamentary words in Tamil. ii) The second charge was the next part of the petitioner's action. After getting down from the bus, the petitioner, of his own, without obtaining any sick passport, as per PSO.279, went to Government Hospital, Tiruvannamalai, on 27th March, 2000, at 21.06 hours and got himself admitted as in-patient for stomach pain. When the doctor went for rounds in the ward and wanted to treat, he found that the petitioner did not go to the ward, thereby he did not get himself admitted as in-patient, but ran away from the hospital with the diet sheet, O.P. ticket, etc. Such action on his part was alleged to be in violation of the PSO with regard to getting a sick passport and getting treatment for any ailment and, at the same time, his reprehensible conduct of running away from the hospital with hospital records in the night. https://hcservices.ecourts.gov.in/hcservices/ 4. In regard to the first set of charge, a criminal complaint was also lodged at Tiruvannamalai Police Station on 27th March, 2000 at 22.20 hours. The Magistrate was sent to the Government Hospital, Tiruvannamalai with hospital memo. The Medical Officer treated the Magistrate and found a contusion on the left cheek, red in colour and gave his opinion on the certificate. Based on the complaint, a criminal case , Cr. No.275/00 was registered in Tiruvannamalai Police Station u/s 294 (b) 323 and 506 (i) IPC against the petitioner. The petitioner was remanded to judicial custody, which was also narrated in the charge sheet while charge No.1 was framed. 5. The petitioner was suspended on 28th March, 2000 and in the criminal case he was charge sheeted. So far as the departmental proceeding is concerned, the petitioner requested to file his show cause reply only after the judgment in the criminal case, but such prayer was rejected on 22nd May, 2000. The enquiry officer, after notice to the petitioner, held day- to-day enquiry between 31st July, 2000 and 31st Aug., 2000 and on appreciation of oral and documentary evidence, submitted the enquiry report on 31st Aug., 2000, holding the petitioner guilty of both the charges. The petitioner was forwarded with a copy of the enquiry report on 30th Sept., 2000 and was asked to submit his explanation. The petitioner represented on 27th Oct., 2000 and after taking into consideration the reply and enquiry report, the disciplinary authority, vide order dated 31st Oct., 2000, agreed with the report of the enquiry officer and dismissed the petitioner from service. The said order was also affirmed by the appellate authority on 5th Jan., 2001. 6. The petitioner did not challenge the dismissal order or appellate order before a court of law prior to the present writ petition. It is only when he was acquitted in the criminal case, Cr. No.275/00, vide judgment dated 26th March, 2002, giving benefit of doubt, as the prosecution failed to lead evidence beyond all reasonable doubt, the petitioner sought for reinstatement in service vide letter dated 15th April, 2002, and such prayer having rejected on 25th July, 2002, after one year from the date of rejection the petitioner preferred O.A. No.2683/02 before the Tamil Nadu Administrative Tribunal, which, on abolition, was transferred to this Court and was heard by learned single Judge. 7. Learned counsel appearing for the petitioner, while referred to one or other circular of the State Government and judgment of Supreme Court to suggest that the petitioner having been acquitted in the criminal proceeding for the same set of allegation, the order of dismissal is not justified. On the other hand, according to the counsel for the respondents-State, the proceeding being different and charge https://hcservices.ecourts.gov.in/hcservices/ being separate, one for misconduct and other in regard to criminal acts, no relief should be granted. 8. We have heard the parties, noticed the rival contentions, seen the judgment referred to and different records enclosed with the typed set. 9. Before the writ court or before this Court, counsel for the petitioner could not show any illegality or infirmity in the departmental proceeding as was initiated against the petitioner. From the records and pleadings, it will be evident that the departmental proceeding was conducted in accordance with law after giving full opportunity of hearing to the petitioner. The enquiry officer, after appreciation of evidence on record, both oral and documentary, came to a definite conclusion in respect of both the charges and held those charges proved against the petitioner. A copy of the same was also forwarded to the petitioner, but he failed to point out any defects in the enquiry report and for that the disciplinary authority agreed with the enquiry report and punishment of dismissal was ordered vide order dated 31st Oct., 2000. The appellate authority also, by detailed order, dismissed the appeal on 5th Jan., 2001, and both the orders were not challenged till the petitioner requested for his reinstatement after the criminal case. 10. Learned counsel for the petitioner relied on circular memo dated 17th Sept., 1997 issued by the Director General of Police, enclosing Supreme court order dated 9th Aug., 1996 in Civil Appeal No.10588/96. It relates to review of order of punishment in case the departmental proceeding and the criminal case are based on same set of facts, evidence and charges. Reliance was also placed on Supreme Court decision in Capt. M.Paul Anthony – Vs – Bharat Gold Mines Ltd. & Anr. reported in 1999 (3) SCC 679. In the said case, the Supreme while determined the scope of simultaneous continuance of departmental enquiry with criminal proceeding, held that scope of those two proceedings are different and they could be continued independently. Taking into consideration the facts of the said case, that both the proceeding were based on same set of facts, which were sought to be proved by the same witnesses, viz., police, panchayat and court and that the appellant was acquitted of charges by rejecting the prosecution story, held the ex-parte disciplinary enquiry, so conducted in the said case, was not proper. 11. In the present case, the petitioner cannot derive advantage of the aforesaid judgment rendered by the Supreme Court. First of all, the departmental proceeding was conducted independently giving opportunity to the petitioner, wherein he took part. It was not an ex-parte departmental enquiry. The order of punishment reached finality, the appeal having been https://hcservices.ecourts.gov.in/hcservices/ dismissed and the said order having not been challenged before any court of law. It is after the acquittal in the criminal case, on the basis of benefit of doubt, the petitioner sought for reinstatement without challenging the order of dismissal, which was rejected by the authorities. From the charge sheet it will be evident that the charge in the departmental proceeding relate to misconduct, whereas in the criminal case specific charge for offence under the Indian Penal Code was framed. So far as the second charge is concerned, i.e., the alleged act of the petitioner leaving the hospital with hospital records, though such grave charge was levelled against the petitioner, but no criminal case was lodged in respect of such second charge. For the second charge, in absence of a criminal case, it cannot be stated that he has been acquitted of such charges. 12. The fact that the petitioner was a member of the disciplined force, the nature of allegation as made in the departmental proceeding shows his behaviour against a judicial officer, which he behaved inspite of information given to him that the person was a sitting Judicial Magistrate. In any case, a police constable is not supposed to disturb another passenger of the bus, who has pre-occupied a seat. The police are there for help to the public and not for disturbing those people, who are passengers in a bus. The charges as made against the petitioner are so grave, which cannot be accepted from a member of the disciplined force. In fact, the charges show indisciplined action on the part of a police constable, which having proved in the departmental proceeding call for deterrent punishment like dismissal, which has been imposed. 13. In the aforesaid circumstances, we are not inclined to interfere with the findings of the enquiry officer, as accepted by the disciplinary authority and the appellate authority and also by learned single Judge and in absence of any merit, the writ appeal is dismissed. Consequently, connected miscellaneous petition is also dismissed. But there shall be no order as to costs. GLN Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Superintendent of Police District Police Office Tiruvannamalai. 2. The Deputy Inspector General of Police, Vellore Range Vellore. + 1 cc to Mr. K. S. Govinda Prasad, Advocate SR No. 9112 + 1 cc to the Government Pleader, SR No.9169 JUDGMENT IN W.A. NO. 189 OF 2008 CU(CO) SR/28.2.2008 https://hcservices.ecourts.gov.in/hcservices/