IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :25.07.2008 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Writ Petition No.44103 of 2006 S.D.Albert Dayakaran Inspector of Police, G3 Puzhal Police Station, Chengalpet East District. ... Petitioner vs. Deputy Inspector-General of Police, Chengalpattu Range, Chennai – 16. ... Respondent Writ Petition under Article 226 of the Constitution of India came to be numbered by transfer of O.A.No.7043 of 2000 on the file of the Tamil Nadu Administrative Tribunal praying writ of certiorarified mandamus to to call for the records relating to the punishment of reduction in pay scale by two stages for two years with cumulative effect passed by the respondent herein in his C.No.A3/PR.21/2000 dated 24.06.2000 and quash the same with all consequential monetary and service benefits. For Petitioner : Mr.M.Ravi For Respondent : Mr.V.Arun, Additional Government Pleader O R D E R By consent of both sides, the writ petition itself is taken up for final disposal. 2.The petitioner is an Inspector of Police. During the year 1999, when he was working as the Sub Inspector of Police at Pallavaram Police Station, a charge memo was issued to him in J1.PR.NO.225/99/CE Under Section 3(b) of the Tamil Nadu Police Subordinate Service (D&A) Rules 1955. There were two charges framed against the petitioner. An enquiry was held into the said charges. The Superintendent of Police, Kancheepuram District who held the enquiry submitted a report dated 20.03.2000, holding that both the charges were not proved. However, the disciplinary https://hcservices.ecourts.gov.in/hcservices/ authority namely the Deputy Inspector General of Police differed from the findings of the Enquiry Officer and holding that the charges stood proved, issued a show cause notice to the petitioner by his proceedings in C.No.A3/PR21/2000 dated 27.04.2000, thereby calling upon the petitioner to show cause as to why he should not be imposed punishment as per the rules for his delinquencies. A copy of the findings of the Enquiry Officer was also furnished to the petitioner. 3.The petitioner duly submitted an explanation on 19.06.2000. Thereafter, the respondent by his proceedings in C.No.A3/PR.21/2000 dated 24.06.2000, has rejected the explanation offered by the petitioner and imposed a punishment of "reduction in pay by two stages for two years with cumulative effect". Challenging the same, the petitioner has filed O.A.No.7043 of 2000 before the Tamil Nadu Administrative Tribunal, Chennai. On abolition of the Tribunal, the said Original Application has been transferred to this Court and re-numbered as writ petition No.44103 of 2006 and that is how this writ petition is now before this Court for disposal. 4.The facts necessary for disposal of this writ petition are as follows:- On 19.09.1999 an accused by name Suresh S/o Shankar involved in a case of theft was brought to the police station in connection with Crime No.898/99 under Section 457 and 380 I.P.C. The then Sub Inspector of Police by name Mr.Loganathan registered a case and interrogated the accused. The accused was again interrogated by one Grade I Head Constable namely Mr.Chellappan. In the F.I.R., itself it was mentioned that the accused Suresh had sustained injuries due to pricking of thorns when he was given a chase by the police. When he was taken to the hospital he told the Doctor that he himself inflicted the injuries with the help of a blade. After treatment, he was brought back to the police station. There were as many as 10 long injuries on his abdomen. Later it came to light According to the respondent, that the accused did not sustain injuries while he was given a chase as claimed by the police and as a matter of fact, while he was kept in the police custody in the police station, he took out a blade and self inflicted as many as 10 injuries on him. 5.On the basis of these allegations, the above stated charge memo was issued to the petitioner which contains the following two charges:- "i)Gross dereliction of duty in having let the accused Suresh S/o Shankar concerned in Pallavaram Police Station Cr.No.898/99 u/s https://hcservices.ecourts.gov.in/hcservices/ 457, 380 I.P.C., to inflict injuries on his stomach and fore arms with the help of a blade with the intention to commit suicide on 19.09.1999 while under custody. ii)Reprehensible conduct in having uttered, false hood about the facts of the attempt of the accused Suresh to commit suicide by inflicting injuries on his stomach on 19.09.1999 at Pallavaram P.S. and thereby hushed up the incident." 6.Before the Enquiry Officer, as many as six witnesses were examined and six documents were exhibited in support of the said charges. P.Ws.1, 2 and 3 are the residents from where the accused Suresh was taken into custody by the police. The said witnesses have stated that on seeing the police personnel, the accused attempted to escape and in that process, he came into contact with a barbed wire fence and also thorny bush and sustained injuries. That is the statement of the police officials also before the Enquiry Officer. Accepting the same, the Enquiry Officer has submitted a report holding that both the charges have not been proved against the petitioner. But the respondent has disagreed with the said finding of the Enquiry Officer and had called for explanation from the petitioner and after getting the explanation, had imposed the punishment on the petitioner. 7.At the outset, it should be stated that both the charges are interconnected in the sense, if the first charge falls to the ground, the second also do. The learned counsel for the petitioner would take me though the entire report of the Enquiry Officer in extentio and also through the proceedings of the respondent and the connected records. A perusal of the Enquiry Officer’s report would go a long way to show that the residents, from the place where the accused was taken into custody have stated that the accused sustained injuries only while he came into contact with barbed wire fence and also thorny bush when he attempted to escape. There is also a mention made about the same in the F.I.R. The Enquiry Officer has believed the independent evidence of these witnesses and has come to the conclusion that the charges have not been proved. 8.It is also seen from the Enquiry Officer’s report that the petitioner was neither the one who arrested the accused nor was he present at the police station at the time when the accused had allegedly inflicted injuries to himself while he was kept in the police custody. https://hcservices.ecourts.gov.in/hcservices/ 9.Of course, it is correct to contend that the respondent being the disciplinary authority, has got every power to disagree with the Enquiry Officer’s report. But, while disagreeing with such Enquiry Officer’s report, it is the bounden duty of the respondent to give cogent and convincing reasons as to why he has disagreed with the findings of the Enquiry Officer. A perusal of the show cause notice dated 27.04.2000 would go to show that it does not contain any such reasons. He has only said that Ex.P.5 namely the preliminary enquiry report of the Additional Superintendent of Police, Prohibition Enforcement Wing, St. Thomas Mount, speaks about the delinquencies committed by the petitioner besides the statement of the accused, Suresh before the Additional Superintendent of Police, Prohibition Enforcement Wing, who held the preliminary enquiry. The fact remains that the accused Suresh was not however examined during the oral enquiry. Except the preliminary enquiry report namely, Ex.P.5., of the Additional Superintendent of Police, Prohibition Enforcement Wing and the statement said to have been made by the accused Suresh to the Additional Superintendent of Police, no other material has been relied on by the respondent to differ from the report of the Enquiry Officer. The respondent has also not considered the explanation of the petitioner and he has discarded the explanation of the petitioner by simply holding that his explanation is not convincing. 10.In my considered opinion, the reasons stated by the respondent, to differ from the report of the Enquiry Officer, stated in the show cause notice are not at all sustainable under law and as a matter of fact, the conclusion arrived at by the respondent is perverse in nature. At first, the preliminary Enquiry Officer’s report cannot be held to be the foundation for holding that the charges are proved when especially all the witnesses examined in support of the charges have stated that the accused sustained injury while he attempted to escape. The respondent has also not given any consideration for the non examination of the accused Suresh. If at all there is one who is competent to speak as to how he sustained injury is only the accused namely Suresh. There is nothing found in the records as to why Suresh was not examined. In the absence of non examination of Suresh, in my considered opinion, the conclusion arrived at by the respondent to hold the petitioner guilty of the charges based only on the preliminary report of P.W.5 is certainly perverse and on that basis, no punishment could be inflicted upon the petitioner. 11.It is true that this Court, while exercising its power under Article 226 of the Constitution of India, cannot substitute its view in the place of the view already taken by an Administrative authority. To put it otherwise, if there are two https://hcservices.ecourts.gov.in/hcservices/ views possible from the materials available on record, the view taken by the Administrative Authority cannot be substituted by the view of this Court though it may be a better view. Being conscious of the said legal position, if the facts of this case are analysed, it cannot be denied that when there are two views taken by two Administrative Authorities; for example in the case on hand, the one by the Enquiry Officer and the other by the respondent, it will be within the competence of this Court, to see which view among two is more probable and sustainable under law. It is also settled law that when a punishment has been inflicted upon a public servant, when there is no evidence at all in support of the charge, certainly, this Court has to interfere. Thus, the scope of judicial review as held by the Hon'ble Supreme Court in the matters of punishment of this kind would be broadly classified into two. Firstly, in a case where there is some eivdence based on which, a particular view has been taken by the disciplinary authority. Secondly, in a case where there is no evidence. Where there is no evidence, but still the disciplinary authority has inflicted punishment, then, the said action would be termed as ‘arbitrary’ and so, the same shall be liable to be quashed. In cases where there is some evidence but still there are two views possible, as I have stated above, the view taken by the disciplinary authority cannot be substituted by the view of this Court. In this case, the facts of the case fall with the second category namely the case where there is no evidence at all. A perusal of the report of the Enquiry Officer would go to show that the petitioner was neither present at the time when the accused was chased by the police personnel nor was he present in the police station when the accused was said to have inflicted injuries to himself. The preliminary enquiry report submitted by the Deputy Inspector General of Police and the statement given by the accused to him cannot be construed to be evidence at all in the eye of law. Here, it should not be mistaken that the term "evidence" as referred to above means evidence as defined in the Evidence Act. I am conscious that in the matters of disciplinary proceedings, the charges could be proved by means of preponderance of probabilities and strict rule of evidence is not applicable. Even applying the said principle of preponderance of probabilities, I find no material at all to conclude that the petitioner is guilty of the charges. In nutshell, I am of the view that here is a case where there is no material against the petitioner to hold the charges proved and so, the punishment inflicted upon the petitioner is liable to be quashed. https://hcservices.ecourts.gov.in/hcservices/ 11.In the result, the writ petition is allowed and the impugned proceedings passed by the respondent in C.No.A3/PR.21/2000 dated 24.06.2000 is quashed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. jbm To The Deputy Inspector-General of Police, Chengalpattu Range, Chennai – 16. 1 cc to Mr.M. Ravi, Advocate, SR. 40477 W.P.No.44103 of 2006 MSM (CO) kk 5/8 https://hcservices.ecourts.gov.in/hcservices/