In the High Court of Judicature at Madras Dated:09.06.2010 Coram: The Honourable Mr.Justice R.SUBBIAH Writ Petition No.9869 of 2009 and M.P.No.1 of 2009 R.Radhakrishnan ..Petitioner ..vs.. 1. The Deputy Inspector General of Police, Thanjavur Range, Thanjavur. 2. The Additional Director General of Police, (Law & Order), Mylapore, Chennai-4. ..Respondents Writ petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarified Mandamus, to call for the records of the respondents in connection with the impugned orders passed by the respondents 1 and 2 in C.No.B1/RO/PR14/2008 R.O.314/2008 dated 07.08.2008 and R.C.No.175878/AP.1(1)/08 dated 15.04.2009 respectively and quash the same and further direct the respondents to reinstate the petitioner into service with all consequential service and monetary benefits. For Petitioner : Mr.K.Venkatramani, Senior Counsel for Mr.M.Muthappan For Respondents : Mr.P.Subramanian, A.G.P., ORDER Challenging the impugned orders dated 07.08.2008 and 15.04.2009 passed by the respondents respectively, the present writ petition is filed and also for a direction to the respondents to reinstate the petitioner into service with all consequential service and monetary benefits. https://hcservices.ecourts.gov.in/hcservices/ 2. The facts, which are necessary to decide the issue involved in the petition, are as follows: The petitioner had entered the service as Grade-II Police Constable in the District Armed Reserve, Nagapattinam District in the year 1988. Subsequently, during 1996, the Tamil Nadu Uniformed Service Recruitment Board conducted a selection for appointment to the post of Sub-Inspector of Police from among the Departmental candidates and the petitioner was selected and appointed as Sub- Inspector of Police and he joined duty on 01.03.1997 and he has no adverse remarks against him. In the said situation, when the petitioner was serving as Sub-Inspector of Police in the Control Room of the Nagapattinam Sub-Division from 10.07.2006, he was deputed for bandobust duty to the meeting of the Hon'ble Chief Minister, Thiruvarur District, scheduled to be held on 12.01.2007. While so, his close friend, by name, Bala @ Balamurugan, met him and requested him to lend his motorcycle, who in turn, handed over his motorcycle to the said Bala and requested him to hand over the motor cycle along with his cell phone and ATM card, which were in his possession to be handed over, in his residence as he apprehended that while performing the duty, he might likely to misplace the said belongings. But, instead of handing over the motor cycle and other articles, which were handed over to him by the petitioner, the said Bala @ Balamurugan had gone to his distance relative's house, namely, Pushpa @ Pushpavalli, around 20.00 hours and while he was talking to his sister, her husband Vijayendran, who had been imprisoned in connection with a prohibition offence, came there, shouted and picked up a quarrel with the said Bala and also beat his wife. The said Bala fled away from the scene, leaving the belongings of the petitioner in the house of Pushpa @ Pushpavalli. Thereafter, the said Vijayendran preferred a complaint as if the petitioner had visited his house during his absence. 3. On the basis of the said complaint, a preliminary enquiry was conducted by the Deputy Superintendent of Police, Nagapattinam Sub- Division for an allegation that the petitioner, instead of reporting to duty after bandobust duty at 20.00 Hours, visited the house of the wife of a bootlegger with a bad intention and when her husband came, escaped from the house, leaving the motor cycle and other articles. Thereafter, he submitted a report to take disciplinary action against the petitioner. Following the same, the petitioner was placed under suspension as per the orders dated 15.01.2007 and a charge memo under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal), Rules, 1955 in PR.No.2/2007 dated 23.03.2007 was served on the petitioner on 11.04.2007. 4. On receipt of the charge memo, the petitioner submitted his reply denying the charges levelled against him; but, not being satisfied with the reply, the 1st respondent had ordered for enquiry. https://hcservices.ecourts.gov.in/hcservices/ In the enquiry conducted by the Additional Superintendent of Police, 8 witnesses were examined and nine documents were marked. Out of 8 witnesses, P.Ws.1 to 4 did not support the case of the prosecution and other witnesses were official witnesses. On conclusion of the enquiry, the Enquiry Officer, namely, the Additional Superintendent of Police, has submitted his report stating that the charges levelled against the petitioner were not proved. But, the 1st respondent, disagreeing with the report of the Enquiry Officer, sent a show cause notice along with the copy of the enquiry officer's report on 11.05.2008, holding that the charges levelled against the petitioner were proved by relying upon the earlier statements given by the witnesses before the preliminary enquiry officer and directed the petitioner to submit his explanation for the present show cause notice within 15 days from the date of receipt of the same. The petitioner also submitted a detailed reply for the show cause notice on 10.07.2008; but the 1st respondent, not being satisfied with the explanation given by the petitioner and relying upon the earlier statement given by the witnesses before the preliminary enquiry officer, came to the conclusion that the petitioner has committed the delinquency and for the proven charges, imposed a punishment of reduction in time scale of pay by two stages for two years and the period of reduction would operate to postpone future increments, by his order dated 07.08.2008 and the petitioner was also reinstated into service. Thereafter, the petitioner preferred an appeal before the appellate authority against the punishment, on 01.09.2008, who, after receiving the appeal petition, even without disposing the same, issued another show cause notice on 31.01.2009 stating that the punishment imposed on the petitioner was inadequate and directed him to show cause as to why the punishment already imposed should not be enhanced and to submit his explanation. The petitioner also submitted his reply requesting the 2nd respondent to accept the favourable conclusions of the enquiry officer's report and requested to set aside the entire punishment. But, the appellate authority, the 2nd respondent, without taking into consideration any of the points and even without disposing the appeal, has held that the delinquency against the petitioner has been proved and enhanced the punishment into one of compulsory retirement from service, by order dated 15.04.2009. Aggrieved over the same, the present writ petition is filed. 5. Learned Senior Counsel for the appellant submitted that totally eight witnesses were examined before the enquiry officer and out of whom, first four witnesses were the material witnesses. P.W.1 Maran had stated in his evidence that he knew the petitioner as he served as Sub Inspector of Police in Keevalur Police Station and in January, 2007, the Inspector of Police. Keevalur, asked him to come to the Keevalur Police Station and when he went there with other witnesses P.Ws.2 and 3, he was asked to sign a written statement and he signed the same without going through the contents therein. Similarly, P.W.3 Navamani had also stated in his preliminary enquiry https://hcservices.ecourts.gov.in/hcservices/ that he simply signed the statement without knowing the contents of the same. Likewise, P.W.2 Mahendran had also stated in his evidence that on pressure, he signed the statement though he knew that the contents of the statement were not correct. Thus, P.Ws.1 to 3 turned hostile and did not support the prosecution case and adduced evidence before the Enquiry officer that without knowing the contents of the statement, they had signed the respective statements in the preliminary enquiry conducted by the Deputy Superintendent of Police on 16.01.2007. P.W.4 is the husband of Pushpa @ Pushpavalli, who had lodged a complaint against the petitioner. But, before the Enquiry Officer, he had stated that he was called by the police officers of Keelakarai Police station and made to sign some statement already written and further, he had stated that without going through the contents of the statements, he put his signature and he denied the illegal intimacy said to have been had with his wife by the petitioner. 6. Learned Senior counsel further submitted that the other witnesses P.Ws.5 to 8 were the official witnesses. P.W.5 is the Inspector of Police, who had stated in his evidence that on 14.01.2007 when he was patrolling the villages Koothanur, Kurukathi, Athipuliyur and Neelapadi in view of pongal festival, he gathered information that the petitioner visited the house of one Pushpa @ Pushpavalli, wife of P.W.4 on 12.01.2007 at 23.000 Hours and P.W.4, the husband of the said Pushpa, who was concerned in a prohibition case in the Sub Jail, Nagapattinam, came out on bail and when he found the petitioner in his house, raised an alarm and when the neighbours tried to secure the petitioner, he fled away from the scene of occurrence leaving the motor cycle and other articles. Hence, the evidence of P.W.5 was not a direct evidence to the occurrence. Similarly, P.Ws.6 to 8, the official witnesses had spoken about the same. Therefore, none of the prosecution witnesses, particularly, P.Ws.1 to 4 did not support the charge levelled against the petitioner. Further, on the side of the petitioner, two witnesses were examined i.e.D.W.1, Bala @ Balamurugan, who had visited the house of Pushpa @ Pushpavalli, D.W.2, the wife of P.W.4 Vijayendran. Though D.Ws.1 and 2 adduced evidence supporting the petitioner, they were not cross examined by the other side. Hence, considering all these aspects, the enquiry officer has come to the conclusion that there was no material evidence to prove the charge beyond reasonable doubt and held that the charge levelled against the petitioner was not proved. But the 1st respondent, disagreeing with the findings of the enquiry officer, issued the show cause notice, by relying upon the statement given by P.Ws.1 to 4 in the preliminary enquiry on 16.01.2007 before the Deputy Superintendent of Police, stating that now-a-days it is common phenomenon that fiscal power will make the witnesses to turn hostile and there was sufficient evidence to substantiate the charge against the delinquent. On receipt of the said show cause notice, the petitioner has submitted his reply dated 18.07.2008 to the 1st respondent, but not being https://hcservices.ecourts.gov.in/hcservices/ satisfied with the reply, the 1st respondent has passed the impugned order dated 07.08.2008 by imposing the punishment of reduction in time scale of pay by two stages for two years and the period of reduction would operate to postpone future increments. 7. Learned senior counsel for the petitioner further submitted that the impugned order which was passed by the 1st respondent by relying upon the statements made in the preliminary enquiry and disagreeing with the report submitted by the enquiry officer, is not legally sustainable. In support of his contention, the learned senior counsel has placed reliance on the judgments reported in LAV NIGAM ..vs.. CHAIRMAN & MD.ITI LTD.AND ANOTHER ((2006) 9 SCC 440) and T.PITCHAI ..vs.. DEPUTY INSPECTOR GENERAL OF POLICE, TIRUNELVELI RANGE, TIRUNELVELI DISTRICT ((2006)2 MLJ 202) and submitted that while disagreeing with the views of the enquiry officer, two show cause notices should be issued to the petitioner before imposing any punishment, one for not agreeing with the views of the enquiry officer's report and directing the petitioner to submit a reply and another notice, after receiving a reply and if they do not agree with the reply, another show cause notice should be issued holding that the charges have been proved. But, admittedly, in this case, no such notice has been issued and straightway the disciplinary authority held that the charge has been proved. Hence, the entire procedure followed is in violation of the principles of natural justice and hence on this ground also, the impugned order is liable to be set aside. 8. Further, the learned senior counsel for the petitioner submitted that the appellate authority has no power to enhance the punishment during the pendency of the appeal filed by the petitioner. That apart, it is the case of 'no evidence' and as such, the interference is necessary in the impugned orders passed by the respondents. In support of his contention, the learned senior counsel relied on two judgments reported in the case of KULDEEP SINGH ..vs.. COMMISSIONER OF POLICE AND OTHERS ((1999) 2 SCC 10) and M.V.BIJLANI ..vs.. UNION OF INDIA AND OTHERS ((2006) 5 SCC 88). As per Rule 6 of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, the appellate authority can enhance the punishment, only after giving show cause notice, that too, after disposing the appeal. The appellate authority cannot issue show cause notice for enhancing the punishment, when an appeal filed by an aggrieved person is pending before them. But, in the instant case, when the appeal filed by the petitioner is pending before the authorities, without disposing the appeal, the show cause notice was issued and thereafter, the punishment of compulsory retirement was imposed, which is in total violation of the said Rule 6 and on these grounds, the impugned orders are liable to be quashed. 9. Per contra, the learned Additional Government Pleader appearing for the respondents submitted that P.W.5, the Inspector of https://hcservices.ecourts.gov.in/hcservices/ Police, had clearly stated in his evidence that on 14.01.2007 and at about 11.15 Hours while he was patrolling the villages of Koothanur, Kurukathi, Athipuliyur and Neelapadi, he gathered information from the villagers that the petitioner visited the house of one Pushpa @ Pushpavalli, wife of P.W.4, on 12.01.2007 at 23.00 Hours with a bad motive and at that time, her husband, who was in Sub-Jail Nagapattinam with regard to the prohibition case, came out on bail and found the petitioner and raised an alarm and when the neighebours attempted to secure the petitioner, he fled away from the place of occurrence, leaving his belongings. The said statement of P.W.5 strongly establishes the guilt as against the petitioner. Moreover, it is only the disciplinary proceedings, in which there is no need to prove the charges beyond reasonable doubt. The preponderance of probabilities is sufficient to prove the charges levelled against the petitioner. Further, since P.Ws.1 to 4 have turned hostile and the petitioner was able to win over the witnesses on his influence, it does not mean that the charge levelled against him was not proved. Further, the charge was serious in nature and based on the documentary evidence and the punishment is not commensurate with the delinquency, which is nothing but an attempt of sexual exploitation of offender's wife and under such circumstances, no fault could be found in the impugned orders passed by the respondents. 10. Heard the learned counsel for the parties and perused the materials on record. 11. It is the main contention of the petitioner that this is a case of no evidence. But, according to the learned Additional Government Pleader, the evidence of P.W.5 and the statement given by P.Ws.1 to 4 in the preliminary enquiry would show that there are sufficient evidence to prove the guilt against the petitioner. Therefore, the preponderance of probabilities is enough to hold that he is guilty of the charge levelled against him. Now, in view of the submission made by the learned counsel on either side, the question that arises for consideration in this case is, whether it is the case of 'no evidence' ? or is there evidence to hold that the petitioner is guilty of the charge levelled against him? 12. To answer this question, this court has to look into the charge framed against the petitioner and the evidence adduced by P.Ws.1 to 8. The sum and substance of the charge memo is as follows: @11/1/2007 md;W fhiy 8/00 kzpf;F khz;g[kpF jkpHf Kjy;th; mth;fspd; ghJfhg;g [ gzpf;F jpUthU:h; brd;wth;. gzp Koj;J fhty; fl;Lg;ghl;L miwf;F jpUk;ghky; 12/1/2007 md;W ,ut[ 23/00 kzpf;F fPtS:h; fhty; rufk; fUnlc&;tuh; rd;djp bjU. ePyg;gho fpuhkj;jpy; trpj;J tUk; jpUkjp g[c&;gh (v) g[c&;gts;sp taJ 31-07 f-bg tp$nae;jpud; vd;gth; tPl;ow;Fs; mth; fzth; ,y;yhj rkaj;jpy; jtwhd nehf;fj;jpy; mfhy neuj;jpy; brd;W. jfhj Kiwapy; ele;J bfhz;lij. RpiwapypUe;J $hkPdpy; btsp te;j g[c&;gts;spapd; fzth; fz;Qqw;W. rj;jk; nghl;L mf;fk; gf;fj;jpy; cs;sth;fis xd;W jpul;o gpof;f Kaw;rpj;j nghJ. https://hcservices.ecourts.gov.in/hcservices/ jdJ clikfis m';nfna nghl;L tpl;L jg;gpj;J Xoa. fhty; tpjpKiwfis kPwpa. fz;zpakw;w. xG';fPdkhd Fw;wk;@/ 13. P.Ws.1 to 4 are the important witnesses. P.Ws.1 to 4, who have said to have deposed in the preliminary enquiry before the Deputy Superintendent of Police, have turned hostile before the Enquiry officer. P.Ws.1 and 3 had categorically stated that they were asked to sign a written statement already prepared and they had signed the same, without knowing the contents. P.W.2 had stated in his evidence that he had signed the statement on pressure. Moreover, P.W.4, who is none other than the husband of the said Pushpa @ Pushpavalli, had totally denied the illicit intimacy the petitioner was said to have had with his wife. Though P.W.5 stated that he had gathered information from the villagers on 14.01.2007, he had no direct knowledge about the occurrence. P.Ws.6 to 8 are only the official witnesses. The enquiry officer has also submitted his report holding that the charge levelled against the petitioner was not proved. But, the 1st respondent, while disagreeing with the findings of the enquiry officer, sent a show cause notice along with the copy of the enquiry officers' report, as follows: "2) The Enquiry Officer, Additional Superintendent of Police, Crime, Nagapattinam District who conducted the Oral Enquiry in this PR.arrived at a conclusion of holding the charge as Not Proved. A copy of minute is sent herewith. 3) Though the Enquiry Officer has drew the minute holding the counts of charges as not proved, I disagree with the Enquiry Officer in view of his findings and find that there are sufficient evidence to substantiate the charge against the delinquent as discussed below:- EVIDENCE AVAILABLE TO SUBSTANTITE THE CHARGE (i) Regarding the charge, he was deployed for bandobust duty to Thiruvarur District, on completion his duty at Thiruvarur he has not reported back to Control Room, Nagapattinam which is his working unit. But he has not done it, this only paved way for the lapses on the part of delinquent SI to commit such an offence tarnish the image of police department among the eyes of general public. The alibi created by the delinquent with regard to his Motor cycle, and personal belonging are only, an afterthought and a fabricated one. The findings of the Enquiry Officer says that, smash matters cannot be decided on services and presumption of perceptions. It should be concluded only on fact with evidences. No independent witness including the alleged victim and her husband supported the prosecution case. Now-a- days it is common phenomenon that fiscal power will turn the witnesses into hostile. https://hcservices.ecourts.gov.in/hcservices/ The Superintendent of Police suspended the SI for his misbehaviour, her order issued K1/713/2007 dated 15.01.2007 will prove his nefarious behaviour and the delinquent officer continuously on absent after this incident. It is evident that he escaped narrowly from the scene of offence or he could have been caught red handed. The serious offence committed by the delinquent, warrants the immediate suspension of particular SI. Hence I disagree with the views of Enquiry Officer". 14. On a careful reading of the said show cause notice, it is clear that for disagreeing with the view of the enquiry officer, the 1st respondent has totally relied upon the statements made by P.Ws.1 to 4 in the preliminary enquiry conducted by the 1st respondent. In my considered opinion, when all the witnesses turned hostile in the enquiry proceedings, the impugned order passed by the 1st respondent, by relying upon their statements made before the Additional Superintendent of Police in the preliminary enquiry, is not legally sustainable. In this regard, paras 5 to 8 of the judgment reported in Pichai's case ((2006)2 M.L.J. 202) could be usefully referred to, which reads thus: "5. The learned counsel appearing for the petitioner argued that the second respondent ought not to have held that the charges against the petitioner are proved based on Exs.P-1 to P-7, which are statements recorded during the preliminary enquiry as the same are without any corroboration, and relying on Exs.P-13 and P-14, which are drawn based on Exs.P-1 to P-7. The learned counsel also read out the dissenting note of the second respondent wherein the differing view was taken based on the statement given in Exs.P-1 to P-7 during the preliminary enquiry. According to the second respondent, the preliminary enquiry was conducted on 14.1.2003. P.W.7 gave statement in Ex.P-7 that Rs.300 each collected from 94 recruits and an amount of Rs.28,200 was handed over to the petitioner in the presence of others. The second respondent therefore relied on the said statement obtained during the preliminary enquiry and the said statements were not corroborated in the regular enquiry after framing of charges. In para 8 of the dissenting note, the second respondent states as follows: "In view of the foregoing conclusions I have given much weight to the statements of P.Ws.1 to 7, P.W.10 given before the preliminary enquiry officer and the report of preliminary enquiry officer i.e.P.W.11 and the exhibits filed by them and Ex.P-1 to P-7, Exs.P-13 and P-14 and the charge against the delinquent is "PROVED" under preponderance of probability as per the various rulings made in various judgments quoted above". https://hcservices.ecourts.gov.in/hcservices/ Learned counsel for the petitioner also cited a decision of the Honourable supreme Court reported in Union of India ..vs.. Mohd.Ibrahim, (2004) 10 S.C.C.87, in support of his contentins. 6. I have considered the submissions of the learned counsel appearing for the petitioner as well as the learned Government Advocate. 7. In the decision reported in Union of India ..vs.. Mohd.Ibrahim, (2004) 10 S.C.C.87, the Honourable Supreme Court in the facts and circumstances of the case before it held that the order of dismissal was vitiated as the findings have been based on consideration of statement of the persons examined during the preliminary enquiry and for the said fact the Tribunal set aside the order of dismissal which was upheld by the High Court and there is no error in the said order setting aside the dismissal order. 8. A Division Bench of this Court by Judgment in Deputy Inspector General of Police, Villupuram and others ..vs.. Vanniaperumal and others, W.P.Nos.29862 and 32581 of 2002, dated 22.2.2005, upheld the order of the Tribunal which set aside the order of removal from service. Paras 6 and 8 of the judgment can be usefully referred to, which reads thus: "6. We have carefully considered the relevant materials and the rival contentions. We have already referred to the charges levelled against the applicants. It is also relevant to note that apart from the applicants two more officers have also been implicated along with them. They are one Sattanathan, Sub-Inspector of Police and Antony, Inspector of Police. It is brought to our notice that Sattanathan is no more and so far as the other officer Antony is concerned lesser punishment has been imposed. Now we are concerned with the charges levelled against both the applicants. In the light of the conclusion arrived at by the Tribunal, we perused the finding of the Enquiry Officer. It is not in dispute that all the prosecution witnesses except P.W.3, who is none other than the Deputy Superintendent of Police, the other witnesses viz., P.Ws.1, 2, 4 and 5 turned hostile before the Enquiry Officer and not supported their earlier statement made at the preliminary enquiry. The Enquiry Officer having noted the above aspect curiously submitted a report holding that all the three charges levelled against them are proved based on the preliminary enquiry. 7. .... 8. In our case, we have already referred to the fact that the prosecution witnesses viz., P.Ws.1, 2, 4 and 5 turned hostile and not supported their preliminary https://hcservices.ecourts.gov.in/hcservices/ version. However, the Enquiry Officer basing reliance on their earlier statement in the preliminary enquiry found that all the charges levelled against them are proved. In the light of the decision of the Supreme Court referred to above, after full-fledged enquiry was held the preliminary enquiry had lost its importance. Further, we find