IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 13-4-2007 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.14075 of 2006 (OA.3552/93) M. Vincent ... Petitioner Vs. 1. Joint Secretary to Government, Home (Services.K) Department, Fort St.George, Madras - 9. 2. Inspector General of Police, Law and Order, Madras - 4. 3. Deputy Inspector General of Police, Vellore Range, Vellore. 4. Superintendent of Police, District Police Office, Dharmapuri. 5. Deputy Superintendent of Police, Dharmapuri. ... Respondents This writ petition came to be numbered under Article 226 of Constitution of India, by way of transfer of O.A.Nos.3552 of 1993 from the file of Tamil Nadu Administrative Tribunal, with a prayer to quash the removal order passed by the 4th respondent in his P.R.66/82 dated 10.7.1983 confirmed in his order C.No.2/Appeal/83 dated 29.2.1984 and confirmed order of the 3rd respondent in his C.No.Appeal/8/84 dated 29.10.1984 and further confirmed by the second respondent in his Rc.No.66137/PR.III/(1)/88 dated 11.6.1988 and the order of the first respondent in his G.O.(3D)No.4 dated 9.1.1991 and direct the respondents to reinstate the petitioner into service with all consequential benefits forthwith. For Petitioner : Mr.S.Ravi For Respondents : Mr.C. Ramesh, Addl. Govt. Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E R Petitioner seeks to quash the removal order passed by the 4th respondent in his PR No.66/82 dated 10.7.1983 confirmed in appeal in the order of the third respondent dated 29.2.1984 and the order of the second respondent dated dated 29.10.1984 and affirmed by the order of the first respondent dated 11.6.1988 in G.O.(3D)No.4 dated 9.1.1991 and direct the respondents to reinstate the petitioner in service with all consequential benefits. 2. The brief facts necessary for disposal of the writ petition are as follows. (a) The petitioner was appointed as Police Constable on 13.5.1976. The Deputy Superintendent of Police, Dharmapuri, issued a charge memo to the petitioner in PR No.30/82 alleging that the petitioner had beaten a prisoner by name Rajamanickam in Uthangarai Sub-Jail Guard premises on 17.11.1981 at about 11.00 a.m. The second charge was that he had misbehaved in a disorderly manner in drunken mood and abused the public in front of the arrack shop situate in Uthangarai to Salem main road. (b) Thereafter a revised charge memo was issued to the petitioner in PR No.66/92 dated 1.12.1982 with four more counts of charges. The consolidated cahrges framed against the petitioner are as follows, "(i) High handed action in having beaten trial prisoner Rajamanickam in Uthangarai Sub-Jail guard premises on 17.11.81 at about 11 A.M. mercilessly without reason. (ii) Gross misconduct for having behaved in disorderly manner in drunken mood and abusing the public in front of the arrack shop situated on the Uthangarai to Salem main road on 05.01.82 and thereby violated conduct rules. (iii) Unbecoming conduct in having consumed arrack and misbehaved with W.PCs.1156 Kalaivani and 1158 Anbarasi in a riotious and indecent manner at about 11 P.M. on 01.09.82 in the residential campus occupied by them and thereby violated conduct rules. (iv) Gross neglect of duty in absenting himself without leave or permission from 01.09.82 to 12.09.82 while serving at Control Room, Krishnagiri. (v) Reprehensible conduct in having reported back at 18.00 hours on 12.09.82 stating that he was suffering from Jaundice though he was not actually suffered from such disease. https://hcservices.ecourts.gov.in/hcservices/ (vi) Gross neglect of duty in habitually absenting himself without leave or permission on 12.10.82 from 22.05 hours to 00.05 hours on 13.10.82 from 06.00 hours to 19.45 hours on 23.10.82 from 20.45 hours to 22.20 hours on 23.10.82 and from 05.30 hours on 28.10.82 to 10.45 hours on 21.11.82 while serving at Armed Reserve, Dharmapuri." (c) An enquiry was conducted and the Enquiry Officer found that all the six charges are proved and enquiry report was submitted on 23.7.1983. The Superintendent of Police, without getting remarks from the petitioner with regard to the enquiry report, on the basis of the Enquiry Officer's finding, removed the petitioner from service by order dated 10.8.1983. Petitioner filed appeal before the third respondent. The third respondent, taking note of the fact of non-receipt of the remaks from the petitioner with regard to the Enquiry Officer's report, set aside the order of punishment and remitted the matter to the Superintendent of Police with a direction to issue a fresh show cause notice and after receiving the explanation from the petitioner directed to pass fresh order. (d) Thereafter, petitioner was issued with a show cause notice and he has submitted his remarks. The Superintendent of Police, after considering the same, again passed an order removing the petitioner by order dated 29.2.1984. Petitioner filed appeal before the third respondent which was rejected. The revision petition filed before the second respondent was also dismissed and the mercy petition filed before the Government was also rejected. (e) Petitioner challenged the order of removal and the orders of the appellate authority, revisional authority and the order passed in mercy petition by filing original applicaion before the Tribunal, which is now transferred to this Court and numbered as the above writ petition. (f) The grounds raised in the writ petition are that the charges were split into various counts and no wound certificate was exhibited during the oral enquiry. Petitioner further contended that he was not on guard duty in Uthangarai Sub-jail, no case was registered against the petitioner for the alleged incident, no statements were recorded from anyone by the police from the scene of occurrence and the evidence of PW-8 stating that the said prisoner slipped and fell down while washing his mouth and due to the said fall, he became unconscious was not considered and the blood and urine test conducted do not confirm consumption of alcohol by the petitioner. The reliance on Ex.P-38 to prove the charge is unsustainable. The leave applications were submitted and medical certificates were accepted and therefore it is not open to the respondents to issue the charges relating to the petitioner's absence. It is also contended in the affidavit that the Superintendent of Police being the appointing authority, https://hcservices.ecourts.gov.in/hcservices/ the charge memo cannot be framed by the Deputy Superintendent of Police and even after remand by the appellate authority, after getting reply from the petitioner, the Superintendent of Police confirmed the order of removal. Stating the above grounds, petitioner prayed for quashing the order of removal. 3. The respondents filed counter affidavit stating the following contentions. (i) The petitioner was placed under suspension with effect from 6.1.1982 for his high handed action in having beaten an under-trial prisoner named Rajamanickam in Uthangarai Sub-Jail Guard premises on 17.11.1981 mercilessly without any reason and behaved in disorderly manner in drunken mood and abused the public in front of the arrack shop and thus the petitioner has violated the conduct rules. A criminal case was registered under section 4 (1)(j) of the TNP Act in crime NO.2 of 1982 by the Uthangarai Police Station, which was subsequently dropped. Petitioner was dealt with for the charge under rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, for the delinquencies and his suspension order was revoked on 3.5.1982 and was posted to Armed Reserve, Dharmapuri. Departmental enquiry was conducted and a punishment was imposed taking note of the seriousness of the charges. (ii) The first punishment of removal from service was imposed and the appellate authority having found that the petitioner was not given chance to furnish his remarks on the enquiry officer's report, remitted the matter with a direction to issue show cause notice to the petitioner and get his remarks and consider the same and pass fresh orders pursuant to which show cause notice was issued on 23.12.1983 and after getting remarks of the petitioner on 20.1.1984, punishment of removal already awarded on 10.8.1983 was confirmed on 29.2.1984. Petitioner filed appeal against the punishment which was rejected, revision petition and mercy petition were also dismissed by the Inspector General of Police and the Government respectively. (iii) It is also pointed out in the counter affidavit that even though originally two charges were framed, enquiry proceedings having not commenced the subsequent delinquencies including the allegation of misbehaving with women police constables, absenting from duty without leave or permission etc., a fresh consolidated charge memo was issued in PR.No.66/82, cancelling the earlier charge memo issued in PR.30/82. During the oral enquiry, petitioner was requested by the Enquiry Officer to put questions to the witnesses. However, the petitioner stated that he will submit his explanation after the oral enquiry was over. Though remarks were not called for after completion of enquiry, after remand, remarks were called for and after considering the same order of punishment was passed. https://hcservices.ecourts.gov.in/hcservices/ (iv) Sofaras the leave application submitted on the ground of jaundice, Dr.R.Rajasekaran, Assistant Surgeon, Government Hospital, Krishnagiri, in his letter dated 23.2.1993 certified that the petitioner did not suffer from jaundice and was not having any giddiness. As regards non-registration of criminal case for the alleged beating of remand prisoner Rajamanickam it is stated that the petitioner being a member of the disciplined force, he was dealt with departmentally for his high-handedness and no criminal case was registered. (v) Insofar as the chemical examination report about the blood and urine samples, it was due to the lapse of time. The doctor PW-14 gave a certificate that the petitioner consumed liquor and he was under its influence. PW-10 S.K.Palanivel who was an independent witness found the petitioner in a disorderly manner on drunken state abusing the public. The women Police Constables sent their reports about the misbehaviour of the petitioner to the Inspector General of Police, Control room, that is to PW-13 and the same was marked as Ex.P-37. Hence the Enquiry Officer, based on the materials and the evidence adduced, found that the charges against the petitioner are proved and he was imposed with the punishment of removal from service. (vi) Insofar as the contention that the charges were not framed by the Superintendent of Police and by the Deputy Superintendent of Police, who is not competent, it is stated in the counter affidavit that the cahrges were approved by the Superintendent of Police and thereafter only it was issued by the Deputy Superintendent of Police. Stating all the above reasons in the counter affidavit, respondents prayed for dismissal of the writ petition. 4. The learned counsel for the petitioner based on the averments contained in the affidavit argued that the petitioner's removal from service is unsustainable as the charges are not framed in the manner known to law. 5. The learned Additional Government Pleader contended that the charges are rightly proved as stated in the counter affidavit and the petitioner being a member of the disciplined police force, was dealt with for the proved charges and he was rightly removed from the service. 6. I have considered the rival submissions made by the learned counsel for the petitioner as well as the learned Additional Government Pleader. 7. The point for consideration is whether the six charges levelled against the petitioner are proved and the procedures to be followed for conducting enquiry were followed. https://hcservices.ecourts.gov.in/hcservices/ 8. As rightly contended in the counter affidavit the charge memo was issued even though by the Deputy Superintendent of Police, it was approved by the Superintendent of Police before the same was issued. Hence the contention with regard to the jurisdiction in issuing the charge memo is unsustainable. 9. The allegations that the petitioner beaten the under trial prisoner Rajamanickam in Uthangarai Sub-jail guard premises on 17.11.1981 at 11.00 a.m. mercilessly and he was in drunken mood and abused the public in front of the arrack shop situate at Uthangarai to Salem main road on 5.1.1981 and his conduct in misbehaving with women police constable 1156 Kalaivani and 1158 Anbarasi in a riotious and indecent manner after consuming arrack in the residential campus occupied by them are all very serious charges and the same are also proved. 10. The contention that without cancelling the first charge memo the second charge memo cannot be sustained in view of the specific averments contained in the counter affidavit that after cancelling charge momo issued in PR.30/82, fresh charge memo in PR 66/82 was issued. 11. The petitioner's contention that no wound certificate was obtained with regard to the injury sustained by the under trial prisoner Rajamanickam is unsustainable because of the fact that there was no external injury even according to the Enquiry Officer. No motive is alleged by the petitioner on the respondents for implicating the petitioner in assaulting the said Rajamanickam. 12. Chemical Examination report after testing the blood and urine sample of the petitioner did not contain even traces of the same is due to lapse of time according to the department and the Doctor PW-14 gave a certificate stating that the petitioner consumed liquor and he was under its influence cannot be brushed aside. Similarly PW-10 who was an independent witness deposed that the petitioner acted in a disorderly manner and abused the public in drunken mood. Therefore the second cahrge is also proved. 13. The report sent by the Women police Constable in Ex.P-37 to the Inspector General of Police, Control room was spoken to by PW-13. The claim of the petitioner that he was suffering from jaundice and therefore he could not attend duty and applied for leave is also disproved by the department on the basis of the letter issued by Dr.Rajasekaran, Assistant Surgeon, Government Hospital, Krishnagiri, through his certifiafte dated 22.2.1993 by https://hcservices.ecourts.gov.in/hcservices/ stating that the petitioner did not suffer from jaundice and he had any giddiness. Hence the unauthorised absence of the petitioner is also found proved. 14. The non-issuance of notice and not getting remarks about the Enquiry Officer's report by the Superintendent of Police originally, was also rectified after remand by the appellate authority and therefore the petitioner was rightly imposed the punishment of dismissal from service. Petitioner being a member of the disciplined force, is not expected to indulge in the activities stated in the charge memorandum and the respondents have rightly taken serious view of the matter and removed him from the service. However, only one technical flaw is committed by the Superintendent of Police, that is, while the appellate authority setting aside the order of removal from service, remanded the matter with a direction to issue show cause notice to get petitioner's explanation/remarks and directed to pass fresh orders. The Superintendent of Police instead of passing fresh orders, confirmed the earlier order of removal dated 10.8.1983, by order dated 29.2.1984. The said procedure followed by the Superintendent of Police is unsustainable. The earlier order dated 10.8.1983 having been set aside and as no reinstatement order is passed, the petitioner shall be treated to be continuously under suspension till the final order is passed subsequenty. Hence the period from 10.8.1983 to 29.2.1984 shall be treated as period of suspension and not as the period of removal from service. Since the said period is to be treated as period of suspension, respondents are bound to pay subsistence allowance to the petitioner as per rules for the period from 10.8.1983 to 29.2.1984. The writ petition is to be allowed to that extent. 15. In the result, the dismissal order passed against the petitioner shall be treated to be valid only from 29.2.1984 and it is ordered that the petitioner is entitled to get subsistence allowance from 10.8.1983 to 29.2.1984 and the same shall be paid within eight weeks from the date of receipt of copy of this order. To the above extent, the writ petition is partly allowed. No costs. vr Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Joint Secretary to Government, Home (Services.K) Department, Fort St.George, Madras - 9. 2. The Inspector General of Police, Law and Order, Madras - 4. 3. The Deputy Inspector General of Police, Vellore Range, Vellore. 4. The Superintendent of Police, District Police Office, Dharmapuri. 5. The Deputy Superintendent of Police, Dharmapuri. + 1 cc to M/s. S. Ravi, Advocate SR No.24476 Order in W.P.No.14075 of 2006 AKR(CO) SR/21.4.2007 https://hcservices.ecourts.gov.in/hcservices/