IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.07.2010 CORAM THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.P.NO.20865 OF 2009 AND M.P.NOS.1 OF 2009 AND 1 OF 2010 Rajendran ... Petitioner versus 1.The Deputy Commissioner of Police Armed Reserve Pudupet, Chennai – 2. 2.The Assistant Commissioner of Police Armed Reserve No.1, Pudupet, Chennai – 2. ... Respondents PRAYER: Writ petition filed under Article 226 of the Constitution of India praying for the issuance of writ of certiorarified mandamus, calling for the records of the respondents 1 and 2 in connection with the impugned orders issued in PR 204/PR 2(1)/2002 dated 30.09.2009 and the enquiry officer's report in PR 204/PR 2(1)/2002 dated 16.09.2009 respectively and quash the same and direct the respondents to conduct the fresh oral enquiry by giving sufficient opportunity to the petitioner to defend himself effectively in the disciplinary proceedings. For Petitioner : Mr.K.Venkatramani Senior counsel for Mr.M.Muthappan For Respondents : Mrs.Lita Srinivasan Government Advocate O R D E R The petitioner entered into service as Grade – II Police Constable in Chennai City Armed Reserve in the year 1984. Later, he was upgraded as Head Constable in the year 1987. While so, a criminal case was lodged against the petitioner in Crime No.789/2002 on the file of City Crime Branch, Chennai, alleging that he collected a sum of Rs.75,000/- from three persons namely M.Sarathi, Srikanth and Nagabooshanam assuring them to get appointment as Police Constable in the Police Department. Thereafter, the Department issued a charge memo dated 11.02.2002 in P.R.No.204/2002 under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) https://hcservices.ecourts.gov.in/hcservices/ Rules 1955 (shortly "the Rules") on the same set of allegations. 2.The petitioner filed Original Application in O.A.No.170 of 2003 before the Tamil Nadu Administrative Tribunal praying to quash the charge memo dated 11.12.2002. The Tribunal, passed an order on 13.01.2003 refusing to quash the charge memo. However, the Tribunal observed that till the criminal case is over, the Department shall not proceed with the departmental proceedings. 3.The aforesaid criminal case in Crime No.789/2002 ended in acquittal by the order dated 01.08.2005 passed by the Additional Chief Metropolitan Magistrate, Chennai. 4.In the meantime, another criminal case in Crime No.674/2003 was instituted against the petitioner under Sections 419, 420 and 468 IPC on 18.07.2003 on the basis of the complaint given by the Branch Manager, Central Bank of India, Mylapore that the petitioner obtained consumer loan for a sum of Rs.30,000/- by producing forged documents, as if he is a Sub-Inspector of Police. The said criminal case came to end on 05.02.2009 and he was acquitted. For the above delinquency, a charge memo in P.R.No.188/PRII(1)/2009 was issued to the petitioner in the year 2009. After acquittal in both the criminal cases, the suspension order was revoked and he was permitted to join duty by an order dated 08.04.2009. 5.Thereafter, the petitioner made a representation dated 15.06.2009 to the respondents to drop the disciplinary proceedings in P.R.No.204/2002, since he was acquitted by the Criminal Court on 01.08.2005 on the same set of allegations. 6.However, the first respondent appointed the second respondent as Enquiry Officer, by an order in j/nfh/vz;/204/j.gp/2(1)//2002 ehs; /07/2009. The second respondent was directed to complete the enquiry within a month. 7.The second respondent issued a notice dated 06.08.2009 to the petitioner directing him to appear for an enquiry on 12.08.2009 stating that the four witnesses could be examined on the said date. Along with the charge memo, five witnesses were cited as the witnesses of the prosecution. However, the fifth witness died. Three of the witnesses were the persons, who paid money for their employment. The fourth witness is an employee of the Department. However, the petitioner did not appear in the enquiry on 12.08.2009. Thereafter, by a letter dated 13.08.2009, the second respondent directed the petitioner to appear for an enquiry on 19.08.2009. Here again, the petitioner did not appear in the enquiry. Again by a letter dated 20.08.2009, the second respondent directed the petitioner to appear for an enquiry on 26.08.2009. It is also stated https://hcservices.ecourts.gov.in/hcservices/ in the letter dated 20.08.2009 that the petitioner remained absent on 12.08.2009 and 19.08.2009. 8.In the meantime, the petitioner filed a writ petition in W.P.No.17102 of 2009 praying for a direction to the respondents to pass orders on his representation dated 15.06.2009 requesting not to proceed with the enquiry, as he was acquitted in the criminal case on the same set of allegations. The said writ petition was disposed on 24.08.2009 directing the first respondent to consider the petitioner's representation dated 15.06.2009 and to pass orders on the same, in accordance with law and also on merits, within a period of four weeks from the date of receipt of a copy of the said order. The said order was made available by the Registry only on 22.09.2009. 9.Since the petitioner did not appear for the enquiry on 26.08.2009, the second respondent examined all the four witnesses and completed the enquiry. Thereafter, the second respondent sent a letter dated 27.08.2009 informing the petitioner that the enquiry was completed and directed the petitioner to submit his defence statement within a week. 10.The petitioner sent a representation dated 02.09.2009 to the respondents in reply to the aforesaid letter dated 27.08.2009 stating that this Court passed an order dated 24.08.2009 in W.P.No.17102 of 2009 to dispose of his representation dated 15.06.2009 and that therefore, the respondents should not have proceeded further with the enquiry. In the said representation dated 02.09.2009, he sought an opportunity to cross examine the witnesses. 11.While so, the second respondent sent a letter dated 09.09.2009 to the petitioner directing him to produce the order dated 24.08.2009 of this Court that he referred to in his letter dated 02.09.2009. On 30.09.2009, the petitioner sent a letter to the respondents stating that he received the copy of the order of this Court dated 24.08.2009 only on 25.09.2009 and that he would send the same in due course. 12.However, the first respondent issued a memo dated 30.09.2009 enclosing the findings of the Enquiry Officer dated 16.09.2009 holding that the charges were proved and directed the petitioner to offer his remarks on the findings, within 15 days. 13.The petitioner has filed the present writ petition seeking to quash the aforesaid findings of the Enquiry Officer dated 16.09.2009 and the memo dated 30.09.2009 of the first respondent directing the petitioner to submit his explanation on the findings of the Enquiry Officer. 14.Notice of motion was ordered on 03.12.2009. The respondents filed counter affidavit. https://hcservices.ecourts.gov.in/hcservices/ 15.Heard Mr.K.Venkatramani, learned senior counsel for the petitioner and Mrs.Lita Srinivasan, learned Government Advocate for the respondents. 16.The learned senior counsel for the petitioner relies on Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules 1955 and submits that the second respondent was not correct in closing the enquiry on 26.08.2009 without giving opportunity to the petitioner to cross examine the witnesses. The other submission is that since this Court on 24.08.2009, after hearing the learned Government Advocate for the respondents, passed an order directing the first respondent to dispose of the petitioner's representation dated 15.06.2009, the second respondent ought not to have proceeded with the enquiry ex-parte on 26.08.2009. 17.On the other hand, the learned Government Advocate submits that the petitioner committed serious offences, not once but twice. The learned Government Advocate further submits that two disciplinary proceedings are pending against the petitioner. The disciplinary proceedings initiated in P.R.No.204/2002 is relating to the criminal case that ended in acquittal on 01.08.2005. Since the criminal case ended in acquittal with the observation that "nkw;Twpa 3 rhl;rpfSk; muRj;jug;gpy;gpwH; rhl;rpfshf mwptpf;fg;gl;L Fwf;Ftprhuiz bra;ag;gl;ldh;/ nkw;go rhl;rpfspd; rhl;rpaj;jpypUe;J mth;fs; bfhLj;j gzk; jpUk;g iff;F fpilj;Jtpl;ljhy;. nkw;go rhl;rpfs; vjphpfSld; rkhjhdkhf ngha;tpl;lhh;fs; vd;W ,e;j ePjpkd;wk; fUJfpwJ////////" the Department thought of proceeding with the enquiry and the second respondent was appointed to enquire into the matter. It is submitted that the petitioner could have appeared on 26.08.2009 and could have brought to the notice of the second respondent about the order dated 24.08.2009 passed by this Court. As the second respondent was not aware of the order passed by this Court on 24.08.2009 directing the first respondent to dispose of the petitioner's representation dated 15.06.2009, the second respondent examined the Department witnesses on 26.08.2009 in the absence of the petitioner. It is also submitted that though a direction was issued by this Court on 24.08.2009 in W.P.No.17102 of 2009 to consider the petitioner's representation dated 15.06.2009 relating to his request for dropping the charges in P.R.No.204/2002, there was no stay of the departmental proceedings and hence, there was nothing wrong in examining the witnesses in the absence of the petitioner. 18.I have considered the submissions made on either side and perused the materials available on record. 19.I am not inclined to agree with the submissions made by the learned senior counsel for the petitioner placing reliance on Rule 3(b) of the Rules. If the petitioner remained absent on all the appointed days, without any reason, he could not say that the Enquiry https://hcservices.ecourts.gov.in/hcservices/ Officer should still adjourn enquiry to some other date for cross examination of the witnesses. The petitioner has to be blamed for his absence on all the days. The learned senior counsel is not correct in his submission that though all the Department witnesses were examined on 26.08.2009 in the absence of the petitioner, Rule 3(b) of the Rules contemplates that the second respondent should have adjourned the enquiry to some other date for the purpose of affording opportunity to the petitioner to cross examine those witnesses. Rule 3(b) of the Rules does not state so. In fact, the second respondent could have concluded the enquiry on 26.08.2009 without providing opportunity to the second respondent to make his written submission of defence within 7 days. 20.As rightly contended by the learned Government Advocate, the charges levelled against the petitioner are very grave in nature. After the petitioner was acquitted in one of the criminal cases on 01.08.2005, the Department waited for the completion of the other criminal case in Crime No.674/2003 relating to submission of forged documents, as if he was a Sub-Inspector of Police and claiming consumer loan of Rs.30,000/- from the Central Bank of India, Mylapore, which ended in acquittal on February 2009. Thereafter, the Department reinstated him in service and decided to proceed with the enquiry in P.R.No.204/2002. The conduct of the petitioner in not appearing for the enquiry on 12.08.2009, 19.08.2009 and 26.08.2009 is condemnable. 21.However, an order was passed by this Court on 24.08.2009 in W.P.No.17102 of 2009 after hearing the learned Government Advocate for the respondents, wherein this Court directed the first respondent to consider the petitioner's representation dated 15.06.2009 requesting to drop the charges based on his acquittal in the criminal cases. 22.In these circumstances, I am of the considered view that the second respondent ought not to have conducted the enquiry on 26.08.2009 by examining all the Department witnesses in the absence of petitioner, as an order was passed on 24.08.2009 by this Court to dispose of the petitioner's representation dated 15.06.2009, after hearing the learned Government Advocate for the respondents. 23.The learned senior counsel for the petitioner also submits that the petitioner would co-operate for the earliest conclusion of the enquiry and that he would attend the enquiry without fail. The learned senior counsel submits that the respondents made their views known now that the respondents were not inclined to drop the enquiry proceedings in P.R.No.204/2002 and that therefore, no separate order need be passed on the petitioner's representation dated 15.06.2009. The learned senior counsel for the petitioner further submits that the petitioner seeks only an opportunity to cross examine the witnesses who were examined on 26.08.2009. The https://hcservices.ecourts.gov.in/hcservices/ learned senior counsel submits that the witnesses need not be examined again and the petitioner will be satisfied, if an opportunity is given to cross examine the witnesses. The learned senior counsel also brought to my notice the petitioner's representation dated 02.09.2009 seeking opportunity to cross examine those witnesses. 24.Hence, I am inclined to interfere in the impugned orders dated 16.09.2009 of the second respondent and 30.09.2009 of the first respondent only for the purpose of giving opportunity to the petitioner to cross examine the witnesses. I am also making it very clear that if the petitioner fails to utilize this opportunity, the second respondent could proceed ahead and submit his report. The respondents are directed to complete the enquiry within two months from today by giving opportunity to the petitioner for cross examination of the witnesses and to file his defence statement and to produce any witness on his side. 25.The writ petition is ordered accordingly. No costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar TK To 1.The Deputy Commissioner of Police Armed Reserve Pudupet, Chennai – 2. 2.The Assistant Commissioner of Police Armed Reserve No.1, Pudupet, Chennai – 2. 1 cc To Mr.T.Ayngaaprabhu, Advocate, SR.53429. 1 cc To The Government Pleader, SR.53369. W.P.NO.20865 OF 2009 BV(CO) RVL 26.07.2010 https://hcservices.ecourts.gov.in/hcservices/