IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.12.2009 CORAM: THE HON’BLE MR.JUSTICE K.CHANDRU W.P.No.18297 of 2009 and M.P.No.1 of 2009 R.D.Rajathi ...Petitioner Vs 1.The Deputy Inspector of Police, Coimbatore Range, Coimbatore -18. 2.The Superintendent of Police, Erode District,Erode. 3.S.Angamuthu .. Respondents Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of mandamus, directing the first respondent to consider the representation dated 29.08.2009 for the change of the enquiry officer and also to have the assistance of a lawyer at the time of domestic enquiry relating to the charge memo in C.No.J1/PR36/Erode/2009 dated 28.04.2009 issued by the first respondent. For Petitioner : Mr.S.Kamadevan For Respondents : Mr.R.Neelakandan,G.A. O R D E R Heard both sides. 2. The petitioner, who was employed as a Sub-Inspector of Police has filed the present writ petition seeking to consider her representation dated 29.08.2009 for a change in the Enquiry Officer and to have the assistance of a lawyer at the time of the departmental enquiry relating to the charge memo in P.R.No.36/2009 dated 28.04.2009. 3. Private notice was ordered on the writ petition on 09.09.2009. Pending the writ petition, this Court granted an interim stay of further proceedings. 4. On notice from this Court, the second respondent had filed a written instruction through the learned Government Advocate. https://hcservices.ecourts.gov.in/hcservices/ 5. The case of the petitioner was that a charge memo under Rule 3(b) of the Tamil Nadu Police State and Subordinate Service (D & A) Rules dated 29.04.2009 was issued to her. There were two charges against the petitioner. The first charge was that the petitioner had an illegal contact with another Sub-Inspector of Police who was placed under suspension, thereby creating bad name for the Department. The second charge was the harassment and assault against one Tmt.Sasikala by demanding cash of Rs.5,00,000/- and a car towards dowry. 6. The petitioner submitted her explanation on 20.07.2009. The allegation made against the petitioner was also made as the subject matter of a criminal case before the Judicial Magistrate Court, Sathyamangalam in C.C.No.194 of 2007. It was stated that the charges against the petitioner in both the criminal case as well as the departmental proceedings were one and the same. Therefore, the petitioner filed a writ petition being W.P.No.15362 of 2009 challenging the charge memo especially Charge No.2. This Court did not entertain the writ petition by stating that the charges cannot be split into two and directed the disciplinary authority to take note of the acquittal from the criminal case when considering the materials gathered during the domestic enquiry. 7. The third respondent who was holding the post of Additional Superintendent of Police was appointed as the Enquiry Officer. The first enquiry date was fixed on 07.08.2009. The petitioner had requested permission to engage an Advocate to defend her in the enquiry. The petitioner was given oral permission to engage an Advocate when the case was posted on 29.08.2009. The petitioner went with her Advocate one Mr.S.Rajamani for the enquiry. The witnesses who were to be examined by the department were also present. 8. The third respondent was not available and they were told that he was in the meeting and he had instructed the Head Constable to record the statement from the witnesses. The second witness Lakshmanasamy never gave any statement but he read the typed statement already prepared and supplied by the third respondent, which was already fed into the computer. Since the witness was not giving his deposition voluntarily, it was objected to by the counsel accompanying the petitioner. Hence, the Head Constable contacted the third respondent over phone and informed him about their objection. 9. It was thereafter the third respondent arrived at the scene. He refused the permission to have the assistance of the Advocate by stating that the issues involved in the enquiry were not legal and technical which required the assitance of a Lawyer. After refusal of the permission given to the lawyer, he wanted to proceed with the domestic enquiry which gave the impression that she will not get justice at the hands of the third respondent. https://hcservices.ecourts.gov.in/hcservices/ Therefore, she had sent a representation to the first respondent seeking for a change of Enquiry Officer. When there was no response from him, she has filed the present writ petition. 10. In the written instructions sent by the second respondent Superintendent of Police, it was stated that the enquiry was also proceeded against one Shanmugasundaram in PR.NO.51/2007 and the same Enquiry Officer was also conducting the present enquiry. With reference to the request of engaging an Advocate in P.R.No.36/ 2009, the same may be re-considered if necessary. 11. Since no affidavit was forthcoming with reference to the personal allegation made against the third respondent who was also made as a named party, a direction was issued to the learned Government Advocate to get a statement from the third respondent. 12. The third respondent in his written instructions dated 11.11.2009 denied the allegation made by the petitioner. With reference to recording of the statement of the witnesses, already the third respondent has stated as follows:- "Further the contention of the petitioner that the preliminary statements of the witnesses have been typed as if it was recorded in Chief examination is not correct. The witnesses were allowed to depose freely without any coercion and recorded what they adduced during oral enquiry." 13. Thereafter, the third respondent filed another written instructions dated 02.12.2009, wherein it was stated as follows: "As the enquiry officer has to attend a meeting conducted by the bus operators, the charged officer and the witnesses were asked to wait till his arrival from the meeting. It is further submitted that the enquiry officer never instructed his writer to record the statement of witnesses as alleged in the affidavit. The enquiry officer returned to his office after attending the meeting conducted by the bus operators and issued a proceeding denying the engagement of the lawyer to defend the enquiry on behalf of the charged officer. The oral enquiry was subsequently postponed as requested by the charged officer." 14. The petitioner in the meanwhile had obtained a supporting affidavit from the Advocate S.Rajamani dated 24.11.2009. A copy of which was also furnished to the learned Government Advocate. In Paragraph(iii), the Advocate has deposed as follows:- "iii) I submit that when I went along with the petitioner to participate in the disciplinary proceedings but the 3rd respondent was not available and it was informed that he went to participate in a https://hcservices.ecourts.gov.in/hcservices/ meeting conducted by the Bus-Operators. Therefore he already instructed the head constable to record the statement from the witnesses and one Thiru.Lakshmanasamy started read the typed statement already given to him. But I objected the procedure adopted by the head constable and immediately the said constable contacted the 3rd respondent over phone and informed about my objection and the enquiry was stopped. Thereafter, the 3rd respondent came to the office and issued the order stating the request for the engagement of the lawyer has been rejected and the examination of witness was deferred and it was informed that the dat of enquiry will be intimated later." 15. Any findings rendered on these allegations and counter allegations will certainly prejudice both sides. Further with reference to the denial of assistance of an Advocate, this Court is not inclined to grant the said relief since the engagement of an Advocate in a departmental enquiry is not a matter of right. But with reference to change of Enquiry Officer, prima facie the allegation made by the petitioner has to be accepted. The stand of the petitioner was also supported by the affidavit of the Advocate, who had no axe to grind against the third respondent. 16. In the light of the above, the first respondent DIG,Coimbatore Range is directed to change the Enquriy Officer and appoint another Enquiry Officer to proceed with the enquiry against the petitioner in accordance with law. 17. The writ petition is disposed of accordingly. No costs. Consequently, connected miscellaneous petition is closed. svki Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar To 1.The Deputy Inspector of Police, Coimbatore Range, Coimbatore -18. 2.The Superintendent of Police, Erode District, Erode. + 1 cc to Government Pleader SR.71130 + 1 cc to M/s.S.Kamadeva, Advocate SR.70728 W.P.No.18297 of 2009 TM(CO) EU 8.01.2009. https://hcservices.ecourts.gov.in/hcservices/