In the High Court of Judicature at Madras Dated: 10.10.2011 Coram The Honourable Mr.JUSTICE D. HARIPARANTHAMAN Writ Petition No.4410 of 2007 (O.A.No. 4494 of 2001) K. Devanesan .... Petitioner Vs. The Superintendent of Police, Kancheepuram District. ....Respondent Prayer: The application in O.A. No. 4494 of 2001 on the file of the Tamil Nadu Administrative Tribunal, to call for the records of the respondent in connection with the impugned order passed in J1 PR No.29/2001 dated 6.7.2001 and quash the same and to stay the impugned order passed by the respondent in J1 PR No.29/2001 dated 6.7.2001 pending disposal of the Original Application, has been transferred to the file of this Court and renumbered as W.P. No. 4410 of 2007. For Petitioner : Mr.K.Venkataramani, Senior Counsel for Mr.M.Muthappanh For Respondents : Mr.V.Subbiah,Spl.G.P. O R D E R The petitioner was serving as Head Constable at Sriperumpudur Police Station during April 1996. He was residing in Sivakanchi Police Limit. On 26.04.1996 morning, while the petitioner was travelling in a bicycle near Senkazhuneer Odai Street at Ponnerikarai, four persons namely Rajendran, Kumar, Kutti and Suresh misbehaved with a girl. The petitioner warned all of them but they retaliated and assaulted him. In the meanwhile, the Inspector of Police arrived at the scene of occurrence and arrested all of them and a criminal case was registered against all of them in Crime No.132/96 under Section 294-B IPC based on the complaint preferred by the petitioner. Thereafter, all the accused persons were remanded to judicial custody. https://hcservices.ecourts.gov.in/hcservices/ 2. While they were in judicial custody, they were said to have been beaten by the jail warder Yesuraj. One of the four accused, Rajendran seems to have lost one of his eye sight due to the assault made by Yesuraj. The said Rajendran preferred a complaint against Yesuraj for assault and Yesuraj was prosecuted and he was also convicted in a criminal case. When the matter was taken before the State Human Rights Commission, the State Human Rights Commissioner directed Yesuraj to pay a compensation of Rs.2 lakhs to Rajendran who got injured and lost one of his eye sight. 3. In these circumstances, a charge memo dated 12.3.2001 was issued alleging that the petitioner went to Kanchipuram Sub Jail on 28.04.1996 at 2.00 p.m. and instigated the Jail Warder to assault the aforementioned four accused persons and the petitioner and Yesuraj assaulted the said accused. The petitioner denied the charges. 4. An enquiry was conducted by the Deputy Superintendent of Police, Kancheepuram. In the enquiry, 9 witnesses were examined including the four accused persons referred to above. 15 documents were marked on the side of the Department. The Enquiry Officer recorded a finding on 14.06.2001 that the charges were not established but the respondent issued a show cause notice dated 18.06.2001 disagreeing with the findings of the Enquiry Officer. The respondent came to the conclusion that the charges were established. Based on his conclusion, the respondent directed the petitioner to show cause as to why the maximum punishment could not be inflicted on him. The petitioner submitted his explanation on 5.7.2001. The respondent passed the impugned order on 06.07.2001 imposing the punishment of reduction in rank from Head Constable to Grade I Police Constable for two years. The petitioner filed Original Application in O.A.No.4494 of 2001 (W.P.No.4410 of 2007) to quash the aforesaid impugned order and the respondent has filed the counter affidavit refuting the allegation. 5. The crux of the counter affidavit is that the petitioner instigated Mr.Yesuraj to beat the accused persons in Crime No.132/1996 on the file of Sivakanchi Police Station. Though the enquiry authority recorded the finding that the charges were not proved, the punishing authority did not accept the finding. Hence, the show cause notice dated 18.06.2001 was issued and thereafter, the impugned order was passed. Therefore, there is no infirmity in the impugned order. 6. Learned senior counsel appearing for the petitioner would submit that there is no evidence that the petitioner assaulted the accused persons in Crime No.132/96 on the file of Sivakanchi Police Station. He has also submitted that there is no legal evidence to the effect that he instigated Mr.Yesuraj to assault those persons. In the circumstances, the Enquiry Officer recorded a categorical finding https://hcservices.ecourts.gov.in/hcservices/ that the charges were not established. The respondent, disagreed with the finding of the enquiry officer and recorded the finding that the charges were established. The finding of the respodent is based on the report made in the preliminary enquiry. The learned senior counsel has referred to paragraph No.3 of the show cause notice dated 18.06.2001. Learned senior counsel would further submit that the respondent failed to record tentative conclusion for the differed views. On the other hand, the respondent has straightaway recorded the conclusion of guilt in the show cause notice itself. In the show cause notice, the petitioner was directed to give explanation on the punishment. According to the learned senior counsel, it is contrary to the judgment of the Apex Court reported in (2006) 9 SCC 440 (Lav Nigam vs. Chairman & Managing Director, ITI Ltd., and another). Learned Senior counsel also relied upon the judgment of this Court reported in (2009) 7 MLJ 578 (K.Ramalingam v. Superintendent of Police, Perambalur) for the proposition that the reliance placed on the preliminary report is bad and illegal. 7. On the other hand, learned Special Government Pleader has made submissions based on the counter affidavit. 8. I have considered the submissions made on either side. 9. The petitioner, at the relevant point of time, was employed in Sriperumbadur Police Station and he was residing at Kancheepuram. On 26.04.1996, the petitioner lodged a complaint to Sivakanchi Police Station that four accused persons viz., Rajendran, Kumar, Kutti and Suresh misbehaved with a girl. Those four persons were arrested by the Inspector of the concerned Police Station and a case was registered in Crime No.132 of 1996 under section 294-B IPC, based on the complaint preferred by the petitioner. They were remanded by the concerned Magistrate and they were taken to Sub Jail at Kancheepuram. At the Sub-Jail, the accused persons were assaulted by one Yesuraj. One of the accused viz., Rajendran lost one of his eye sight in that assault. A complaint was lodged against Yesuraj for assault and a criminal case was instituted against Yesuraj. The petitioner was not an accused in that case. Yesuraj was convicted. Further more, the matter was taken to State Human Rights Commission and Yesuraj was directed to pay a compensation of Rs.2 lakhs to Rajendran. 10. All the four accused persons who were said to have been assaulted by Yesuraj were examined in the enquiry. None of them have stated that the petitioner assaulted them. The charge made against the petitioner was that he assaulted the four accused persons along with Yesuraj in the Sub-Jail but those persons have stated that the petitioner did not assault them and they have categorically stated that only Yesuraj had assaulted them. According to those accused persons, the petitioner visited the Sub-Jail and talked to Yesuraj. It is stated that the petitioner told Yesuraj, to take care of the said accused persons. In these circumstances, the Enquiry Officer https://hcservices.ecourts.gov.in/hcservices/ recorded the finding that the charges were not established. The respondent issued a show cause notice dated 18.6.2001 disagreeing with the findings of the Enquiry Officer. As rightly contended by the learned senior counsel for the petitioner, the respondent did not give tentative reasons for his differed views. On the other hand, the respondent has straightaway recorded the finding of guilt in the show cause notice. The petitioner was directed to show cause as to why the maximum punishment should not be imposed on him. The only reason given in the show cause notice for differing with the findings of the Enquiry Officer is, based on the report dated 30.09.1996 of the Officer who conducted preliminary enquiry. 11. The entire show cause notice dated 18.6.2001 is extracted hereunder. jh';fs; fpH;f;fhdqk; Fw;wj;ijr; bra;jikf;fhf fhty;Jiwj; jiyth; mth;fspd; ghpeJiuf;F Vw;g j';fs; kPJ 3(M) gphptpd; fPH; Jiw eltof;if j/g/vz;/ 29-2001y; nkw;bfhs;sg;gl;Ls;sJ. 28/4/1996k njjp g[pw;gfy; Rkhh; 2/00 kzpastpy; vt;tpj cj;jut[kpd;wp fh";rpg[uk; fpisr; rpiwr;rhiyf;Fr; brd;W rptfh";rp fhty; epiya Fw;w vz;/132-96 gphpt[ 294(gp),jr tHf;fpy; rk;ge;jg;gl;l vjphpfis mof;f ntz;Lk; vd;w nehf;fj;Jld; rpiwf;fhtyh; naRuh$; j-bg !;bld;!;t!; vd;gtiu mQDfp mtiuj; J}z;otpl;L vjphpfis mof;f itj;Jk; ePUk; mtUld; nrh;e;J vjphpfis moj;jJk; fz; of;fj;jf;f xG';fPdkhd bray;* 2) fh";rpg[uk; Jizj;fhty; fz;fhzpg;ghsh; mth;fs; nkw;go jz;lid gl;oaypd; kPJ. tha;bkhHp tprhuiz nkw;bfhz;L. j';fs; kPJ rhl;lg;gl;l Fw;wk; epU:gpf;fg;gltpy;iy vd;W jdJ 4/6/2001 ehspl;l epfH;r;rpg;gjptpy; Fwpg;gpl;L cs;shh;/ 3) mg;nghJ bghWg;gpypUe;J fh";rpg[uk; Jizf;fhty; fz;fhzpg;ghsh; jdJ 30/9/96 ehspl;l tprhuiz mwpf;ifapy; jh';fs; rpiwf;fhtyh; jpU/naRuh$; vd;gtiu. Fw;wthspfis rpiwapy; milj;j gpd;g[ rpiwf;fhtyh; brd;W ngrpajhy; jhd; rpiwf;fhtyh; jpU/naRuh$; vd;gth; fhtyhplnk jfuhW bra;fpdwhah. Vd;W Fw;wthsp uhn$e;jpud; vd;gtiu moj;jjhff; TwtJ Iag;ghLfSf;F ,lkspf;fpwJ vd;W Fwpg;gpl;Ls;shh;/ 4) tprhuizf;ifjp uhn$e;jpuDf;Fk; rpiwf;fhtyh; naRuh$; vd;gtUf;Fk; vt;tpj Kd; tpnuhjKk; ,Ug;gjw;Ff; fhuzkpy;iy/ ,f;Fw;wr;rhl;oy; thjj;jug;g [ rhl;rp uhn$e;jpud; (Kd;dhs; tprhuizf; ifjp) jd;Dila thf;F K:yj;jpy; jd;ida[k; jd;Dld; nrh;e;j K:tiua[k; rpiwapy; milj;j kW ehSk; mjw;fLj;j ehSk; rpiwf;F te;j j';fis ftdpj;Jf;bfhs; vd;W rpiw thh;ldplk; brhd;djhft[k;. mth; te;J nghdij rpiw thh;ld; fhz;gpj;jjhft[k; mt;tkak;. njtnerd; vd;w fhtyh; ngha;f;bfhz;oUe;jnj $d;dy; tHpahfg; ghh;jjjhft[k; brhy;ypa[s;shh;/ ntWgzpapy; c;ss fhtyUf;F rpiwr;rhiyf;Fr; bry;y ntz;oa mtrpak; ,y;iy/ ,th;fis mof;fr; brhy;yp J}z;Ltjw;fhfj; jhd; jh';fs; m';F brd;Ws;sPh; vd;gJk; mth;fisg; gHpth';f ntz;Lk; vd;w bfl;l https://hcservices.ecourts.gov.in/hcservices/ vz;zj;jpy; jhd; brd;Ws;sPh; vd;gija[k; kWg;gjw;fpy;iy/ ckJ J}z;Ljypd; nghpy;jhd; uhn$e;jpuid rpiwthh;ld; K:h;f;fj;jdkhf moj;J mtuJ fz; ghh;it nghFk; mst[f;F moj;J. ,J kdpj chpik fkpc&dpYk; Vw;Wf;bfhs;sg;gl;l cz;ik/ 5) nkYk; jh';fs; ePjpkd;w tprhuizapYk; Kd;Df;Fg;gpd; Kuzhf rhl;prak; mspjJs;sjhf rpwg;[g ePjpj;Jiw eLth; Rl;of;fhl;oa[s;shh;/ 6) nkw;fz;l fhuz';fspdhy; tprhuiz mjpfhhpapd; Kot [ Vw;Wf;bfhs;sj;jf;fjhf ,y;iy/ vdnt j';fs; kPJ 3(M) gphptpd; fPH; eph;zapf;fg;gl;Ls;s mjpfgl;r jz;lidia Vd; tH';ff;TlhJ vd;gjw;fhd tpsf;fj;jpid ,f;Fwpg;ghiziag; bgw;w 15 jpd';fSf;Fs; rkh;gpg;ff gzpf;fg;gLfpwPh;/ jtwpdhy; ,f;fhuzk; nfl;Fk; fwpgghizia Vw;Wf;bfhz;ljhff; fUjp ,j;jz;lidg; gl;oaypd; kPJ ,Wjp Miz gpwg;gpf;fg;gLk; vd;W bjhptpf;fg;gLfpwJ/ 12. As rightly contended by the learned senior counsel, the respondent differed with the findings of the Enquiry Officer based on the preliminary enquiry report dated 30.09.1996 and there is no other reason given by the respondent. The reliance placed on the preliminary enquiry report is not correct and legal, since the full- fledged enquiry took place thereafter and the witnesses were examined and the enquiry officer exonerated the petitioner after giving reasons therefor. Hence, the respondent is not correct in placing reliance on the preliminary enquiry report. Paragraph No.3 of the show cause notice states that the Officer who conducted preliminary enquiry stated that since the petitioner visited the sub jail, Yesuraj assaulted the accused. In the absence of specific and categorical evidence that the petitioner has asked Yesuraj to assault the accused persons, it could not be stated that he instigated Yesuraj to assault them. Mere visit of the petitioner to the sub jail could not be sufficient to hold that he instigated Yesuraj and he assaulted those persons. As stated above, a criminal case was instituted only against Yesuraj and he was also punished and compensation was also awarded by the Human Rights Commission against Yesuraj and not against the petitioner. Further more, no reason is given by the respondent for his differed views except the preliminary enquiry report. Even the preliminary enquiry report referred to in paragraph No.3 of the show cause notice states that he visited the sub-jail and spoke to Yesuraj. Further more , as rightly contended by the learned senior counsel for the petitioner, no tentative conclusion was arrived by the respondent. The respondent should give tentative reasons for his differed views and seek explanation on his tentative reasons and thereafter only, he could record the finding of guilt on receiving the explanation. 13. The judgment of the Apex Court reported in (2006) 9 SCC 440 (Lav Nigam v. Chairman & Managing Director, ITI Ltd., and another) squarely applies to the facts of this case. The same decision was https://hcservices.ecourts.gov.in/hcservices/ also followed by this Court in the judgment reported in (2009) 5 MLJ 175 (S.Subramanian v. Additional Director General of Police cum Commissioner of Police, Chennai City). The relevant paragraphs in the judgment reported in (2006) 9 SCC 440 (Lav Nigam v. Chairman & Managing Director, ITI Ltd., and another)are extracted hereunder. 11. In Punjab National Bank v. Kunj Behari Misra a Bench of this Court considered Regulation 7(2) of the Punjab National Bank Officer Employees' (Discipline and Appeal) Regulations, 1977. The Regulation itself did not provide for the giving of any notice before the disciplinary authority differed with the view of the enquiry officer. This Court held: "The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer." 12. This view has been reiterated in Yoginath D.Bagde v. State of Maharasthtra. In this case also Rule 92) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 did not specifically provide for a disciplinary authority to give an opportunity of hearing to the delinquent officer before differing with the view of the enquiry officer. The Court said: "But the requirement of 'hearing' in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before the disciplinary authority finally disagrees with the findings of the enquiring authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the enquiring https://hcservices.ecourts.gov.in/hcservices/ authority do not suffer from any error and that there was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent officer the 'TENTATIVE' reasons for disagreeing with the findings of the enquiring authority so that the delinquent officer may further indicate that the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the enquiring authority are not germane and the finding of 'not guilt' already recorded by the enquiring authority was not liable to be interfered with." 14. Considering the facts and circumstances of the case and in view on the above referred judgment, I am of the view that the impugned order is liable to be quashed. According, the impugned order is quashed and the writ petition is allowed. No costs. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar. vsi To The Superintendent of Police, Kancheepuram District. 1 cc To Mr.M.Muthappan, Advocate Sr 62208 1 cc to The Govt. Pleader, SR 62155 W.P.No.4410 of 2007 nm[co] gp/10.11. https://hcservices.ecourts.gov.in/hcservices/