IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.01.2010 CORAM THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.P.No.34189 of 2006 and M.P.No.1 of 2008 T.Jayabalan ..Petitioner Versus 1. Inspector General of Police (Law and Order) Chennai – 600 004. 2. Deputy Inspector General of Police Tirunelveli Range, Tirunelveli. 3. Superintendent of Police District Police Office Tirunelveli – 2. ..Respondents PRAYER : This writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of Original Application in O.A.No.10131 of 1998 from the file of the Tamil Nadu Administrative Tribunal with a prayer to quash the punishment of dismissal from service passed by the second respondent herein in his PR.37/97 (R.O.Tin), P.R.79/97 (DPO Tin) dated 06.05.1998 and the order of the third respondent herein in his D.O.845/98, P1/PR.79/97 dated 06.05.1998 and the consequential order of the first respondent herein in his Rc.No.171279/AP.2(1)/98 dated 10.09.1998 with all consequential benefits and direct the respondents herein to reinstate the petitioner in service. For Petitioner : Mr.Ravi Shanmugam For Respondents : Mr.S.Shiva Shanmugam Government Advocate O R D E R The Original Application in O.A.No.10131 of 1998 before the Tamil Nadu Administrative Tribunal is the present writ petition. https://hcservices.ecourts.gov.in/hcservices/ 2.The petitioner joined the Police Service as Sub-Inspector of Police on 02.11.1979. He was promoted as Inspector of Police in 1993. He served as Inspector of Police in Nanguneri Circle, Kanyakumari District from 10.04.1996 to 13.08.1996. The Inspector of Police, who controlled the Vijayanarayanam Police Station, was on leave. Hence, he was given additional charge of the said police station during April 1996. 3.When he was holding the additional charge, two persons namely, Natarajan and Muthukumar, sons of Rathinasamy Nadar, were murdered on 27.04.1996 at 06.00 p.m, at Keelapandarapuram, which comes under the jurisdiction of Vijayanarayanam Police Station, due to the enmity between two rival groups and both the group belong to the same village, namely, Keelapandarapuram. A case was registered in Crime No.74/96 in Vijayanarayanam Police Station under Sections 147, 148, 341 and 302 IPC against Selvaraj, Ramar, Sudalai and 4 others, who belong to Keelapandarapuram. 4.Following the murders, allegations were made that the houses of the accused persons namely, Selvaraj, Ramar and Sudalai were looted at Keelapandarapuram, for which, a case was registered by the petitioner in Crime No.206/96 in Vijayanarayanam Police Station under Sections 380, 457 and 454 IPC against Gopal and Patturajan, who belong to the opposite party. Both Gopal and Patturajan were arrested on 11.11.1996. The criminal case relating to theft of household articles of Selvaraj, Ramar and Sudalai was proceeded against them. 5.The petitioner, who held the additional charge of Vijayanarayanam Police Station, immediately took action by registering FIR in Crime No.74/96 against Selvaraj, Ramar, Sudalai and 4 others, who were accused of committing double murder. The accused persons absconded and later, they surrendered before the competent criminal Court. Their bail applications were stoutly opposed by the petitioner and they remained in prison for 113 days. 6.In the meantime, the petitioner was transferred to Coastal Security Group, Tuticorin. While he was serving in the Coastal Security Group, Tuticorin, he was served with a charge memo dated 04.07.1997 in P.R.No.79/97 under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules 1955. It is alleged in the charge memo that the petitioner along with the civilians namely, Gopal and Patturajan went to Keelapandarapuram village and took away the Beedi leaves, Grinder and T.V. from the houses of Selvaraj, Ramar and Sudalai, who were the accused in the murder case in Crime No.74/96. However, he received the charge memo only on 07.11.1997. 7.It is stated that the petitioner was not an accused in Crime No.206/96 relating to the same allegations. https://hcservices.ecourts.gov.in/hcservices/ 8.Before serving the charge memo, four witnesses were examined as PW1 to PW4 in his absence. Pws.1 to 3 were examined on 30.09.1997 and PW4 was examined on 24.10.1997. The examination of witnesses took place while the petitioner was on medical leave from 09.07.1997 to 21.10.1997. It is also stated that no notice of enquiry was served on him. Thereafter, on his request, he was permitted to cross examine those witnesses and PW5 was examined in his presence and he cross examined PW5. The petitioner let in 3 defence witnesses who were all police personnel served in Vijayanarayanam Police Station. He produced the General Diary of Vijayanarayanam Police Station through DW1, the then Sub-Inspector of Police of the Vijayanarayanam Police Station. The Enquiry Officer submitted a report dated 25.01.1998 holding that the charge was proved. Based on the said findings, the second respondent passed an order dated 06.05.1998 imposing the punishment of dismissal from service. The petitioner preferred an appeal dated 25.05.1998 and the same was rejected by the first respondent on 10.09.1998. 9.The petitioner filed Original Application in O.A.No.10131 of 1998 (W.P.No.34189 of 2006) praying to quash the aforesaid orders dated 06.05.1998 of the second respondent and 10.09.1998 of the first respondent and for a consequential direction to the respondents to reinstate him in service with all consequential benefits. 10.Heard Mr.Ravi Shanmugam, learned counsel for the petitioner and Mr.S.Shiva Shanmugam, learned Government Advocate for the respondents. The learned Government Advocate has produced the entire file relating to the order of dismissal for perusal. 11.The respondents filed reply affidavit refuting the allegations. It is stated that the petitioner was imposed with the punishment of dismissal from service based on the enquiry granting him all opportunities. It is stated that the message and call letters to attend the oral enquiry on 22.02.1997, 30.09.1997 and 24.10.1997 were sent to the petitioner through the Deputy Superintendent of Police, Coastal Security Group, Tuticorin. The petitioner failed to turn up for the oral enquiry under some pretext or the other. As he did not turn up for oral enquiry, P.Ws 1,2 and 3 were examined on 30.09.1997 and P.W.4 was examined on 24.10.1997. On 15.11.1997, he requested for an opportunity to cross examine the PWs 1 to 4. Accordingly, he was granted opportunity to cross examine those witnesses, who were already examined in his absence. They were cross examined on 28.11.1997. Since the charge was grave in nature, the petitioner was dismissed from service based on the findings recorded in the enquiry. 12.The learned counsel for the petitioner has made elaborate submissions. Firstly, he submits that the enquiry was held in blatant violation of principles of natural justice as PWs 1 to 4 were examined in his absence and he was not informed about the https://hcservices.ecourts.gov.in/hcservices/ commencement of the enquiry and the examination of witnesses. It is further elaborated that without even serving him the charge memo, the enquiry was commenced in his absence. While he received the charge memo on 07.11.1997, the witnesses were examined on 30.09.1997 and 24.10.1997. It is also submitted that while the petitioner was on medical leave from 09.07.1997 to 21.10.1997, the enquiry was conducted in his absence without even putting him on notice about the enquiry. 13.Secondly, the learned counsel for the petitioner submits that there is no legal evidence to support the finding of guilt. Though 7 witnesses were cited, due to the death of Selvaraj and Sudalai, those witnesses were not examined and the statements made by them were also not produced in the enquiry. The only alleged eye witnesses were PWs 2, 3 and 4. P.W.4 did not say anything against the petitioner and thus the evidence of PWs 2 and 3 were heavily relied on by the respondents to inflict the punishment of dismissal. But, according to the learned counsel, both the witnesses were not on picketing duty at Keelapandarapuram between 27.04.1996 to 30.04.1996 and hence their evidence should also be discarded as they were not eye witnesses and they gave false evidence as directed by the higher officials. To drive home this point, he relied on the General Diary produced in the enquiry through the then Sub-Inspector of Police who was examined as DW1. Since those witnesses were not at all in Keelapandarapuram as per the General Diary, the respondents were not correct in proceeding the matter, as if they were eye witnesses. 14.Thirdly, the learned counsel for the petitioner submits that when the petitioner was not shown as accused in Crime No.206/96 relating to the commission of theft of household articles of Selvaraj, Ramar and Sudalai, there is no basis for making allegation in the charge memo in P.R.No.79/97 that the petitioner involved in the commission of theft along with the accused in the said Crime No.206/96. It is submitted that based on the alleged confession made by the accused in the said crime, the charge memo in P.R.No.79/97 was issued against the petitioner. But the alleged confession statement was not produced in the enquiry. Based on such an alleged confession, PW5 conducted a preliminary enquiry on 05.02.1997 after about 10 months of the alleged incident and based on such an enquiry, charge memo in P.R.No.79/97 was issued. Therefore, the entire exercise is malafide. It is also submitted that proceeding on the basis of the alleged confession of an accused itself is bad and illegal. Reliance is placed on the judgment of the Honourable Apex Court in BHAGAT RAM VS. STATE OF HIMACHAL PRADESH reported in AIR 1983 SC 454. 15.On the other hand, relying on the reply affidavit, the learned Government Advocate seeks to sustain the impugned order of dismissal. https://hcservices.ecourts.gov.in/hcservices/ 16.I have considered the submissions made on either side and also perused the entire records placed before this Court. 17.It is contended by the learned counsel for the petitioner that the mere opportunity given by the respondents to cross examine the four witnesses could not cure the defect, when those witnesses were admittedly examined in the absence of the petitioner and when the petitioner was not notified that the enquiry would be held on 30.09.1997 and 24.10.1997. 18.In this regard, I have perused the entire records and also instructed the learned Government Advocate to look into the records to see whether notice was given about the enquiry that would be held on 30.09.1997 and 24.10.1997. No notice of enquiry is found in the entire record. The learned counsel for the petitioner is also correct in his submission that the petitioner was on medical leave from 09.07.1997 to 21.10.1997 when the enquiry was conducted on 30.09.1997 and 3 witnesses were examined on 30.09.1997. 19.The learned Government Advocate justifies the action of the respondents in holding enquiry in the absence of petitioner on the ground that the petitioner refused to receive the charge memo stating that he would receive only when the same is served through proper channel. He has also brought to my notice in the enquiry file relating to the letter dated 15.09.1997 stating that he would receive the charge memo when the same is served through proper channel. However, the learned Government Advocate is not able to brought to my notice any memo directing the petitioner to appear for enquiry on 30.09.1997 and 24.10.1997. 20.Admittedly, the petitioner was on medical leave from 09.07.1997 to 21.10.1997. The reasoning given by the learned Government Advocate that the petitioner refused to receive the charge memo when the same was served in his residence and that therefore, the witnesses were examined in his absence is not acceptable to me. When it is stated in para 4 of the reply affidavit that messages and call letters to attend the oral enquiry in PR.79/97 on 22.09.1997, 30.09.1997 and 24.10.1997 were sent to the applicant through the Deputy Superintendent of Police, Coastal Security Group, Thoothukudy, the same is not found in the entire enquiry file. Therefore, there is no document to show that the petitioner was notified about the enquiry that would be held on 30.09.1997 and 24.10.1997. Without notifying the enquiry, witnesses were examined in the absence of the petitioner. The Enquiry Officer, the Superintendent of Police, Tirunelveli did not state anything about the service of notice on the petitioner. 21.Hence, the opportunity given by the respondents to cross examine the witnesses could not cure the defect. The examination of https://hcservices.ecourts.gov.in/hcservices/ prosecution witnesses in the absence of petitioner without any notice about the enquiry would render the entire proceedings vitiated. 22.Both the first and second respondents relied on PWs 2 and 3 to come to the conclusion to establish the charge made in the charge memo. The appellate authority, namely, the first respondent herein in his order dated 10.09.1998 has stated as follows: "3.His above contention are not acceptable. The Enquiry Officer had to be appointed and the oral enquiry commenced prior to service of the charge memo because he had refused to receive the charge memo. However, on his subsequent request, he was given the opportunity to cross-examine those witnesses who were already examined in his absence and as such, there is no injustice caused to him. The motive attributed to the three accused does not hold good because there could be no motive for the Police Constables (P.W.s.2&3) and the A.S.P.(P.W.5) to falsely depose against him. The charge stands proved on sufficient and credible evidence........." Hence, heavy reliance is placed on PWs 2 and 3. 23.As far as P.W.1 is concerned, admittedly he was not an eye witness. Further, he was an accused person in the double murder case. He absconded and his bail was opposed by the petitioner. Admittedly, it is not in dispute that he remained in prison for 113 days and only thereafter, he was able to get the bail order. Hence, his evidence could not be given much credence by the appellate authority. Furthermore, he did not give any details in his evidence. That is, the PW1 himself admitted that he was informed by his relatives about the looting of household articles. He also did not give any details as to the date, time and the particulars of items that were allegedly looted by the petitioner. Hence, the appellate authority did not rely on the PW1 evidence and the evidence of PW2 and PW3 was relied on on the ground that they were posed for picketing duty at Keelapandarapuram Village when the alleged looting took place. But, it is not so as per the records. 24.The General Diary produced by DW1 makes it very clear that both the PW2 ad PW3 were not posted for picketing duty. As per the General Diary, P.W.2 was on station duty from 27.04.1996 to 07.05.1996. Likewise, PW3 was on election duty from 27.04.1996 to 02.05.1996. Further, PW2 admitted during cross examination that he came for picketing duty to Keelapandarapuram Village only on 06.05.1996 and on 27.04.1996, he was posted for election duty in one village called Padhaikkam. P.W.3 has stated in chief examination itself that he was posted for picketing duty after one week of the double murder at Keelapandarapuram village. Hence, these are all https://hcservices.ecourts.gov.in/hcservices/ significant admissions by prosecution witness in favour of defence. It is well settled by a catena of decisions that not taking into account the admission made by prosecution witness in favour of defence would render the findings perverse. 25.The respondents are not correct in relying on the evidence of PW5 who is merely an Investing Officer. Hence, the reliance placed on by the respondents and more particularly, the appellate authority on the evidence of PW5 to hold the charge as proved is not correct. 26.The learned counsel for the petitioner has relied on a decision of the Honourable Apex Court in ANIL KUMAR VS. PRESIDING OFFICER AND OTHERS reported in AIR 1985 SC 1121. Paragraph 5 of the said judgment is extracted here-under: "5.We have extracted the charges framed against the appellant. We have also pointed out in clear terms the report of the Enquiry Officer. It is well-settled that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the Enquiry Officer has a duty to act judicially. The Enquiry Officer did not apply his mind to the evidence. Save setting out the names of the witnesses, he did not discuss the evidence. He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence produced by the appellant did not appeal to him or was considered not credit-worthy. He did not permit a peep into his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant. An enquiry report in a quasi-judicial enquiry must show the reasons for the conclusion. It cannot be an ipse dixit of the Enquiry Officer. It has to be a speaking order in the sense that the conclusion is supported by reasons. This is too well-settled to be supported by a precedent. In Madhya Pradesh Industries Ltd. v. Union of India MANU/SC/0044/1965,, AIR 1966 SC 671, [1966] 1 SCR 466, this Court observed that a speaking order will at best be a reasonable and at its worst be atleast a plausible one. The public should not be deprived of this only safeguard. Similarly in Mahabir Prasad v. State of Uttar Pradesh MANU/SC/0018/1970,, AIR 1970 SC 1302, (1970) 1 SCC 764, [1971] 1 SCR 201, this Court reiterated that satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appealed https://hcservices.ecourts.gov.in/hcservices/ to the authority. It should all the more be so where the quasi-judicial enquiry may result in deprivation of livelihood or attach a stigma to the character. In this case the enquiry report is an order sheet which merely produces the stage through which the enquiry passed. It clearly disclosed a total non-application of mind and it is this report on which the General Manager acted in terminating the service of the appellant. There could not have been a gross case of non-application of mind and it is such an enquiry which has found favour with the Labour Court and the High Court." 27.The learned counsel for the petitioner has also relied on another judgment of the Honourable Apex Court in KULDEEP SINGH VS. COMMISSIONER OF POLICE AND OTHERS reported in 1999 (2) SCC 10. Paras 6 to 9 of the said judgment is extracted here-under:- "6.It is no doubt true that the High Court under Article 226 or this Court under Article 32 would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the enquiry officer as a matter of course. The Court cannot sit in appeal over those findings and assume the role of the appellate authority. But this does not mean that in no circumstance can the Court interfere. The power of judicial review available to the High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictates of the superior authority. 7.In Nand Kishore Prasad v. State of Bihar it was held that the disciplinary proceedings before a domestic tribunal are of quasi-judicial character and, therefore, it is necessary that the Tribunal should arrive at its conclusions on the basis of some evidence, that is to say, such evidence which and that too, with some degree of definiteness, points to the guilt of the delinquent and does not leave the matter in a suspicious state as mere suspicion cannot take the place of proof even in domestic enquiries. If, therefore, there is no evidence to sustain the charges framed against the delinquent, he cannot be held to be guilty as in https://hcservices.ecourts.gov.in/hcservices/ that event, the findings recorded by the enquiry officer would be perverse. 8.The findings recorded in a domestic enquiry can be characterised as perverse if it is shown that such findings are not supported by any evidence on record or are not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of that evidence. This principle was laid down by this Court in State of A.P. v. Rama Rao in which the question was whether the High Court under Article 226 could interfere with the findings recorded at the departmental enquiry. This decision was followed in Central Bank of India Ltd. v. Prakash Chand Jain and Bharat Iron Works V. Bhagubhai Balubhai Patel. In Rajinder Kumar Kindra v. Delhi Admn. it was laid down that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse. It was also laid down that where a quasi-judicial tribunal records findings based on no legal evidence and the findings are its mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated. 9.Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny." Applying the law laid down in those cases, I am of the considered view that it is a case of no legal evidence in support of the charge. 28.The learned counsel has also relied on the judgment of this Court in BRAKES INDIA LTD., VS. ASSISTANT COMMISSIONER OF LABOUR reported in 1994 (II) L.L.N. 220 and contends that the documentary evidence must prevail over any oral evidence. That is, even assuming that if the oral evidence of PWs 2 and 3 is against him, since the document, namely, the General Diary contains about the works that were assigned to PWs 2 and 3 on relevant dates namely, 27.04.1996 to 30.04.1996, the oral evidence of PWs 2 and 3 should be rejected. 29.The learned counsel for the petitioner is correct in his submission that the alleged confession statement of Gopal and Patturajan could not be relied on to prove the charge against the petitioner. As rightly contended by the learned counsel for the https://hcservices.ecourts.gov.in/hcservices/ petitioner, the alleged confession was not produced in enquiry. Further, neither Gopal nor Patturajan was examined in the enquiry and PW5 only spoke about the alleged confession. Even if Gopal or Patturajan was examined, their evidence could not be relied on, as they were co-accused and their evidence should not be given credence in the light of the observations of the Honourable Apex Court in BHAGAT RAM VS. STATE OF HIMACHAL PRADESH reported in AIR 1983 SC 454. Para 9 of the said judgment is extracted here-under in this regard. "9.The next question is whether there was negligence in performance of duty. In this connection, the Inquiry Officer has observed that the duty of a Forest Guard is to see that the trees are felled after they are properly hammer-marked. He has further held that there is no exception to this rule and it applies in all cases whether the trees stand on one's private land or on Government forest land. The Inquiry Officer further found that the appellant did not take action to stop felling of trees on which hammer mark was not affixed. The Inquiry Officer, therefore, concluded that the appellant failed in performance of his duty and he connived with the offender in the illicit felling of trees. The defence of the appellant was that he had sought the advice of his Block Officer Shri Duni Chand co-delinquent whether trees standing on private land could be felled without permission and he was informed by Shri Duni Chand that spruce trees standing in one's private land can be felled without permission. The Inquiry Officer rejected the defence but he reached this conclusion by a method which leaves much to be desired. A joint Inquiry was proceeding against the appellant and Shri Duni Chand. After 5 witnesses were