IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.11.2010 CORAM: THE HONOURABLE MR.JUSTICE B.RAJENDRAN W.P.No. 24024 of 2009 M.Chitra .. Petitioner vs. 1. The Director General of Police Tamil Nadu, Chennai -4 2. The Additional Director-General of Police (Law and Order), Chennai -4 3. The Deputy Inspector - General of Police Thanjavur Range, Thanjavur .. Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a writ of Certiorarified mandamus calling for the records pertaining to the order passed by the third respondent herein in his P.R.No.110/05 dated 22.1.2008 imposing a punishment of censure and the order of the second respondent herein passed in his Rc.No.223162/AP.I(1)/2008 dated 20.3.2009 imposing a punishment of postponement of increment for one year without cumulative effect and the consequential order passed by the first respondent herein in his Rc.No.75703/AP.1(1)/2009 dated 06.10.2009 and quash the same and consequently direct the respondents herein to gant the petitioner all the consequential monetary and serice benefits withheld due to the above punishments. For petitioner : Mr. Ravi Shanmugam For Respondents : Mr. V.Arun Additional Government Pleader ORDER The petitioner, who joined the services as direct Sub Inspector of Police on 10.5.1999, was charged under 3 (b) on 07.10.2005 by the Deputy Inspector General of Police in PR No.110 of 2005 for an allegation that he had misappropriated a sum of Rs.64,000/- with 12 sovereigns of jewels from the house of Duraipandi and after one week, he returned Rs.9,000/-with one chain and two rings for which, an https://hcservices.ecourts.gov.in/hcservices/ enquiry officer was appointed, enquiry was conducted and according to the petitioner, none of the witnesses supported the allegations and she had not taken any materials in the Ganja raid. But the enquiry officer, on 10.5.2007, held that the charge has been proved based on the statements given by P.W.4, P.W.5 and P.W.6. 2. The main contention of the petitioner was that the Inspector of Police Mr.Anbalagan was heading the raid and he was not examined and final order was passed on 12.2.2008. Though in the order, it has been admitted that the witnesses 1 to 3 have not supported the charge and that the prosecution has miserably failed to implicate official witnesses or eye witnesses yet, she was given a punishment of censure on the ground that the petitioner had failed to send the seizure mahazar together with the seized articles into Court in Form 95. But, as per the procedure, form 95 should be sent only by the Inspector of Police, who was the investigation officer to seize the materials. Accordingly, in this case, Form 95 had already been sent to Court by the Inspector Mr.Anbalagan. Without taking this vital fact, the original authority as well as the appellate authority had passed the order. Hence, the order is vitiated. 3. As against the said order of punishment, the petitioner preferred an appeal to the Additional Director General of Police (Law and Order), who inturn sent a notice for enhancement of punishment on the ground that Form 95 was not issued by the petitioner. Inspite of the reply, the appellate authority has passed an order enhancing the punishment. As against the same, the petitioner preferred a revision to the Director General of Police which was also dismissed only on the sole ground that Form 95 was not produced into Court by the petitioner. In Form 95, it is very clearly stated that the same should have been done by the Inspector, which was already done and the same has not been considered. Hence, he would challenge the order of punishment and also the order of enhanced punishment. 4. The respondents have filed a detailed counter. In the counter, they would contend that the petitioner was serving as Sub Inspector in a special team formed to detect prohibition offences and that she detected the cash as well as jewels and the same were not produced under Form 95 or incorporated in form 95 and subsequently, even though the P.W.1 to P.W.3 were not an eye witnesses in the original complaint, the same was rightly pointed out by the authority and passed an order of censure. On appeal, the appellate authority, taking into consideration the gravity of the offence, increased the punishment by following the principle of natural justice. Ultimately, the revision filed by the petitioner was also rejected by the authority. Therefore, there is no impediment in passing the impugned order and Form 95 should have been prepared by the petitioner. 5. Heard both sides. https://hcservices.ecourts.gov.in/hcservices/ 6. The short point for consideration in this writ petition is whether it is the duty of the petitioner to incorporate the seized materials in Form 95 in respect of the raid and to produce the same into Court? 7. The enquiry officer conducted a detailed enquiry and submitted a report. Based on the said report, the punishment authority, namely, the Deputy Inspector of Police, has passed the following order: All the PWs except in the prosecution were speak against the charge, and the failure of citing of eye- witnesses or official witnesses to speak about the delinquent WSI had taken away cash and jewels from the P.W.1s house during Kanja raid on 21.3.2005, the question to consider is, whether there is adequate evidence to prove the charge, the charge is a lapse and it will go in favour of the delinquent. However, it is the duty of the delinquent WSI to be careful in her duties while conducting such raids in the house of anti social elements, while registering cases against the P.W.1, the delinquent WSI had filed to arrange to send the seizure mahazar together with the seized articles to the respective courts in Form 95. After considering all the facts, circumstances and evidences on record and also the fact that the delinquent is a youngster, who has a long service still ahead of her, she need to be given a chance to reform herself. Hence, I take a lenient view and award her a punishment of "CENSURE" From the said order, it is very clear that the authority would categorically state that when there is no adequate evidence to prove the charge, he holds that the charge is a lapse and it would only go in favour of the delinquent. But however, he would only say that as the delinquent has failed to send the seizure mahazar in Form 95, she had been given a punishment of censure. Therefore, the finding is very clear that there is no material evidence to prove the guilt on the part of the petitioner whereas by virtue of the non sending of From 95 alone, the punishment has been imposed. 8. In this connection, the learned counsel for the petitioner pointed out that Form 95 should only be prepared by the investigating officer. In this case, the investigating officer is K.Anbalagan, the Inspector of Police. It is also pertinent to point out here that the said Inspector was heading the special team for detecting the ganga. When he was available in the spot, it is he who should prepare the Form 95. In this connection, he also produced the certified copy of Form 95, which has been produced into Court on 23.2.2005. From that, it is very clear that Form 95 was prepared by K.Anabalagan, Inspector of Police. Further in Form 95 itself, which has been very clearly written, the name and designation of the person making the https://hcservices.ecourts.gov.in/hcservices/ seizure, namely, K.Anbalagan is found. The seizure mahazar is also produced, which is also signed on 22.3.2005 by the said K.Anbalagan, the Inspector of Police. 9. Therefore it is very clear that the authority, namely, the Inspector of Police, who is the competent person, who seized the materials, had produced the Form 95 into Court. It is also further pertinent to point out that when the Inspector of Police was also present at the time of raid, no charge has been made against him in the alleged recovery. Under those circumstances, the charge, when it is proved only on the technical ground that the Form 95 has not been produced, imposing the said punishment is totally not sustainable since the petitioner is not a concerned person to send such form 95 into Court. 10. In this connection, it is relevant to mention the judgment of the Division Bench of this Court in P.KARUPPIAH V. THE DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES (1989 WLR 272), wherein this Court has categorically held as follows: "2. Mr.G.Subramaniam, the learned counsel for the appellant, would canvass two aspects before us. The first aspect is, that the appellant was not specifically charged with the duties and obligations with regard to remittances and withdrawals as per the charges levelled against him and there is no proceeding which has specifically cast upon the appellant such duties and obligations. Learned counsel for the appellant drew our attention to the by-laws which have been referred to both by the first respondent and the second respondent as casting a duty on the appellant with regard to the remittances and withdrawals. Bylaw 29A(b) and bylaw 29A(d) have been referred to in this connection. We have been furnished with copies of the said by-laws and we find that bylaw 29A(b) is general in nature and merely speaks about the Secretary's responsibility for the executive administration of the bank, subject to the control of the President. Bylaw 29A (d) is also general in nature and speaks about the secretary being in custody of all the properties of the Bank and about the power of the secretary to operate the bank account. By a reading of the above bylaws, we are not able to spell out any specific duty or obligation on the part of the appellant, with regard to remittances and withdrawals In the absence of the casting of such specific duties or obligation on the appellant with regard to remittances and withdrawals, by any acceptable proceeding, governing the services of the appellant when he acted as the secretary – in charge or accountant in charge, it will not be in https://hcservices.ecourts.gov.in/hcservices/ order to pin down the liability for loss of interest on the appellant. The appellant has been mulcted with the liability only on the basis that he has by acts and omissions of wilful negligence caused to loss to the bank. For this action, it must be first established that there were duties and obligations specifically cast upon the appellant, of which he committed breach. If there is no clarity as to the specific duties and obligations cast upon the appellant with regard to remittances and withdrawals, then the very basis of the charges must be held to be lacking. That is the position here. Negligence in this context presupposes existence of specific duties and obligations and breach thereof. If the duties and obligations are not specifically defined and delineated, one could not pin down the culpability of breach thereof on the person concerned. This aspect could not be a matter of presumptions and assumptions but necessarily must be a matter of concrete materials. We find that the probable nexus between any act of omission on the part of the appellant and the resultant loss to the bank has not been made out at all for the simple reason there is no material exposed in the case, making out the casting of specific duties and obligations upon the appellant in this behalf. Hence, we are obliged to sustain the first ground of attack, put forth by the learned counsel for the appellant." In the above said judgment, this Court has categorically held that first of all it must be established that there were duties and obligations specifically cast upon the person, who is alleged to have committed the breach. If the duties and obligations are not specifically proved, then one could not pin down the culpability of breach thereof on the person concerned. 11. Here, admittedly, Form 95 could only be sent by the investigating officer, namely, the Inspector of Police, which has been duly done by him coupled with the fact that the Inspector, though was present, was not given any charge memo, then the charge itself goes. As rightly pointed out by the original authority, there is no evidence to prove the culpability as P.W.1 to P.W.3 does not support the case of the prosecution. Merely on the technical ground, the punishment has been imposed which was also increased by the appellate authority again on the very same ground that the petitioner has not produced Form 95 and not on any other ground. 12. In this case, it is relevant to take note of the decision of the single judge of this Court in N.NANDAGOPALAN V. SECRETARY TO GOVERNMENT, PERSONNEL AND ADMINISTRATION REFORMS (Q) DEPARTMENT, CHENNAI (2006) 3 M.L.J 191), wherein this Court has https://hcservices.ecourts.gov.in/hcservices/ held that when no proceedings initiated against other persons, who were involved in the same incident of misconduct, then the disciplinary proceedings conducted against the petitioner alone is discriminatory. 13. In this case, the authority has not taken any action against the Inspector of Police. Therefore, the order of punishment imposed by the original authority itself is not correct and consequently, the order of the appellate authority, which has increased the punishment without taking into consideration the fact that form 95 has been duly produced into Court by the Inspector of Police, is also not correct. Hence, the impugned orders are liable to be set aside. Accordingly, the impugned orders are set aside. The writ petition is allowed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ga To 1. The Director General of Police Tamil Nadu, Chennai -4 2. The Additional Director-General of Police (Law and Order), Chennai -4 3. The Deputy Inspector - General of Police Thanjavur Range, Thanjavur 1 cc To The Government Pleader, SR.81533 1 cc To M/S.Ravi Shanmugam, Advocate, SR.81400 W.P.No.24024 of 2009 TEJ (CO) RH (10.12.10) https://hcservices.ecourts.gov.in/hcservices/