IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 6.11.2009 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.420 of 2008 K.Muniappan .. Petitioner Vs. 1. The Secretary to Government Home Department Fort St.George, Chennai – 600 009. 2. The Director General of Police Chennai – 600 004. 3. The Deputy Inspector General of Police Vellore Range, Vellore. 4. The Superintendent of Police District Police Office Salem. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Certiorari to call for the records relating to the impugned order passed by the fourth respondent herein in his proceedings P.R.201/H4/95 under Rule 3(a) dated 29.10.1996 and modified by the third respondent herein in his C.No.B3/AP- 5/97, dated 27.3.1997 and confirmed by the second respondent herein in his proceedings Rc.No.193150/AP2(2)/98, dated 15.10.1998 and further confirmed by the first respondent herein in his order G.O.(2D) No.85, Home (Pol.IV) Department, dated 1.2.2006 and quash the same. For Petitioner : Mr.K.Venkataramani Senior Counsel for M/s.G.Bala and Daisy For Respondents : Mr.R.Murali Government Advocate https://hcservices.ecourts.gov.in/hcservices/ ORDER The writ petitioner has jointed as Sub Inspector of Police on 28.9.1987 and was promoted as Inspector of Police. In this writ petition he challenges the minor punishment imposed on him under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955. 2.1. While the petitioner was working as a Sub Inspector of Police at Ammapet Police Station, on 22.2.1996, he was served with a charge memo under the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 and the charge relates to his investigation in Crime No.815 of 1991 on the file of the Ammapet Police Station under Section 302 of the Indian Penal Code. 2.2. As Sub Inspector of Police, the petitioner has no jurisdiction to investigate an offence under Section 302 of the Indian Penal Code and it is only the Inspector of Police who is competent and therefore, according to the petitioner the very charge that the petitioner has done perfunctory investigation is not correct. 2.3. The petitioner has submitted his explanation for the charge on 3.3.1996 stating that originally the case was registered under Sections 341 and 325 of the Indian Penal Code and after the injured person died, it was converted as an offence under Section 302 of the Indian Penal Code on 4.8.1994; that since the Medical Officer was not present the petitioner has recorded the statement of the deceased under Section 161(3) of the Code of Criminal Procedure when the injured was in hospital in a stable condition; and that the investigation was done only by the Inspector of Police. 2.4. It is his further case that while the occurrence took place in the year 1991, the charge was framed after five years, namely in the year 1996, and the explanation of the petitioner was not properly considered. It is his case that even though Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 does not contemplate appointment of an Enquiry Officer or furnishing of enquiry report, the Deputy Superintendent of Police, Salem Town has prepared the enquiry report holding the charge against the petitioner as proved and agreeing with the report of the Enquiry Officer, the disciplinary authority, namely the fourth respondent has passed an order on 29.10.1996 imposing a punishment of postponement of increment for a period of one year without cumulative effect, without application of mind. 2.5. On an appeal preferred to the third respondent on 25.12.1996, the third respondent has modified the punishment into https://hcservices.ecourts.gov.in/hcservices/ that of censure by order dated 27.3.1997. The further review preferred to the Inspector General of Police on 9.6.1998 was entertained by the second respondent and the same was rejected on 15.12.1998 without assigning any reason. The review petition filed before the first respondent under Rule 15-A of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 was rejected on 1.2.2006 without acting as per the Rules. Therefore, none of the orders passed by the authorities are speaking orders. 2.6. It is the case of the petitioner that mere omission or commission or error of judgment or negligence simpliciter is not a misconduct by relying upon the judgment of the Supreme Court in Inspector Prem Chand v. Government of NCT of Delhi, [2007] 4 SCC 566. Further, the order of punishment has been passed mechanically, without application of mind and no proper enquiry was conducted and the punishment has been passed in violation of the statutory rules and the principles of natural justice. 3.1. In the counter affidavit filed on behalf of the respondents, while it is admitted that the charge against the petitioner was issued under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 for the delinquency of perfunctory investigation conducted by the petitioner as Sub Inspector of Police in Crime No.815 of 1991 on the file of the Ammapet Police Station under Section 302 of the Indian Penal Code, it is stated that as a Sub Inspector of Police, the petitioner has registered a case under Sections 341 and 325 of the Indian Penal Code on 3.8.1991 at 11 p.m. and investigated; that during the course of his investigation, he visited the scene of crime, drew observation mahazar, prepared rough sketch, examined witnesses and recorded their statements; that he has also recovered the material objects from the scene of occurrence; that after the death of the deceased Kumar, the offence was altered into one under Section 302 of the Indian Penal Code and express report was sent to the Inspector of Police for further investigation; and that the Sessions Judge, while acquitting the case, has made an adverse remark about the perfunctory investigation on the part of the petitioner and therefore, the petitioner was inflicted with the charge and departmentally punished. 3.2. It is stated that when the statement under Section 161(3) of the code of Criminal Procedure was recorded from the injured he was in a critical condition from 1.45 p.m. and the same has been found by the Sessions Judge in his judgment and there was no adverse comment against the Inspector of Police, since he commenced investigation only after the death of the deceased. It is stated that the petitioner alone was responsible for acquittal of the accused in the said case due to his improper investigation and therefore, the charge memo was issued and there was no wilful delay https://hcservices.ecourts.gov.in/hcservices/ in framing charge, since the charge was framed only after the judgment was pronounced by the Sessions Court. The punishment of postponement of increment for a period of one year without cumulative effect was passed on 29.10.1996 by the fourth respondent on the proved charge and on appeal it was modified as censure by the third respondent. 3.3. It is stated that the Sessions Court has found flaw in the investigation by the petitioner on various counts, including that the petitioner has failed to get attestation from the duty Medical Officer while recording statement from the injured on 3.8.1991 at 10 p.m; that the petitioner has not given satisfactory explanation for the delay of six days in registering the case; that the murder weapon was not well connected with the accused; that no steps were taken by the petitioner to record the dying declaration of the injured; that it was highly improbable of recording statement under Section 162 of the Code of Criminal Procedure from the injured on 4.8.1991 at 2 a.m. when his condition was serious. 3.4. It is also stated that the judgment of the Supreme Court relied upon by the learned counsel for the petitioner is not applicable because that was a case of 11 years delay in framing the charge sheet. According to the respondents, no principle of natural justice has been violated and all opportunities have been granted to the petitioner. It is stated that copy of minutes has to be given only in cases of punishment of reduction, suspension, compulsory retirement, removal and dismissal and in other cases, copies will be given only on application. In respect of minor penalties, the rule contemplates only giving of reasonable opportunity of making any representation and the petitioner was given reasonable opportunity to defend and there is no violation of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 or the principles of natural justice. 4.1. The main point which is raised by Mr.K.Venkataramani, learned senior counsel appearing for the petitioner is that the report of the Enquiry Officer has not been furnished. For that proposition, he would rely upon the judgment in Nawabkhan v. Superintendent of Police, [2008] 7 MLJ 1275 which relates to a charge framed under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, which is similar to Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955. 4.2. He would submit that if there is any prejudice that will be caused if the report of the Enquiry Officer is not submitted, the same is a violation of principles of natural justice, by relying upon the judgment of the Division Bench of this Court in C.K.G.Nathan v. Assistant Commandant, CISF, Chennai, [2009] 5 MLJ https://hcservices.ecourts.gov.in/hcservices/ 1121. He would also rely upon the judgment of the Supreme Court in Managing Director, ECIL, Hyderabad v. B.Karunakar, AIR 1994 SC 1074, apart from the latest judgment of the Division Bench of this Court in N.Subramanian v. Group Commandant, CISF and another, 2009 CIJ 739 (Madras). 5.1. On the other hand, it is the contention of Mr.R.Murali, learned Government Advocate appearing for the respondents that under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 there is no enquiry contemplated and therefore, the question of supply the report of the Enquiry Officer does not arise. It is also his case that this point of non supply of report of Enquiry Officer has not been raised by the petitioner at any point of time throughout. In the circumstances that no enquiry is contemplated under the Rules and that the petitioner himself has not raised anything about the report of Enquiry Officer, it is his submission that no prejudice is caused by non furnishing the report of the Enquiry Officer to the petitioner. 5.2. It is his submission that, in fact, the petitioner is aware of the report of the Enquiry Officer as he has filed the same in the typeset of papers which shows, according to him, that by non furnishing the report of the enquiry officer no prejudice has been caused to the petitioner. He would rely upon the judgment of the Supreme Court in State of U.P. v. Harendra Arora and another, [2001] 6 SCC 392, apart from the judgment of the Division Bench of this Court in Union of India v. C.V.Anantharaghavan, 2007 [3] CTC 337. 6. Before going into the merits of the legal submissions made by the learned Senior Counsel appearing for the petitioner, it is relevant to consider some of the factual aspects involved in this case. 7.1. The charge against the petitioner which was framed on 10.2.1996 was "gross neglect of duty in having done perfunctory investigation in Ammapet Police Station Crime No.815/1991 under Section 302 of the Indian Penal Code resulting in acquittal on 26.3.1993 by the Sessions Judge, Salem". The basis of the charge is that in respect of an offence in Crime No.815 of 1991, on 3.8.1991, when the petitioner was Sub Inspector of Police, he has registered a case originally under Sections 341 and 325 of the Indian Penal Code and investigated. He has recorded statement under Section 162 of the Code of Criminal Procedure on 4.8.1991 at 1502 hours and it is also not in dispute that on the same day, namely on 4.8.1991 the injured died and there was a delay of six days in registering FIR. In respect of that case, which was tried by the Sessions Judge in S.C.No.28 of 1993, since in the meantime the offence was converted into one under Section 302 of the Indian Penal Code, the accused was acquitted on 26.3.1993. In the judgment, the https://hcservices.ecourts.gov.in/hcservices/ Sessions Court has commented about the way of investigation done by the petitioner. It was based on the finding of the Sessions Court, the charge came to be framed against the petitioner on 10.2.1996, by initiating departmental proceedings against him. 7.2. The reply given by the petitioner for the charge is that when he was recording the statement under Section 161(3) of the Code of Criminal Procedure, the injured was conscious and therefore, there was no occasion for him to presume that he would die, so as to get a dying declaration by a Magistrate. It is also his case that when the injured was admitted in the hospital on 3.8.1991 he was only treated as an out-patient. In respect of the filing of the FIR with delay of six days, it was the explanation of the petitioner that the injured was beaten up on 29.7.1991 at Ammapet and he took private treatment since the individuals who have beaten him are all his relatives and therefore, immediately when the incident took place, namely on 29.7.1991 there was no complaint. It was only when the condition of the injured became serious, he was taking treatment in the Government Hospital on 3.8.1991 and after receiving information, immediately the petitioner has registered the FIR and therefore, there cannot be delay between the date of occurrence namely 29.7.1991 and registering dated 3.8.1991, since the incident itself was brought to the notice of the police only on 3.8.1991 and hence, there was no delay and the acquittal was on the benefit of doubt. It is his case that the delinquency was on 3/4.8.1991, the judgment was pronounced by the Sessions Court on 26.3.1993 and the charges have been framed on 10.2.1996 and therefore, there is a delay of three years in framing charges, which, according to the petitioner, is against the circulars issued by the Government as well as the other judgments. 7.3. The Enquiry Officer, in his report dated 26.8.1996, has found that when the petitioner has recorded statement of the injured on 3.8.1991, no attestation was obtained from the duty Medical Officer nor any private witness has signed in the statement and it was in those circumstances, the Deputy Inspector General of Police, Vellore Range has found that the petitioner has committed lapses in investigation and suggested to initiate departmental proceedings against him. The Enquiry Officer has also found that the petitioner has failed to connect the murder weapon (reaper) with the accused and concurring with the finding of the Enquiry Officer and finding that obtaining of attestation of the duty Medical Officer while recording the statement is mandatory and that the petitioner has not take efforts to record the dying declaration of the deceased through the Magistrate, the fourth respondent has awarded the punishment of postponement of increment for a period of one year without cumulative effect. https://hcservices.ecourts.gov.in/hcservices/ 7.4. On appeal, the third respondent while reducing the punishment to censure has given the following finding: "2. The appellant was inexperienced Police Officer of 4 years standing at the time of commission of these lapses. No bad motive can be attributed to him for these lapses in investigation and it is only due to inexperience, he has failed to investigate the case thoroughly, fulfilling all legal requirements. Considering these facts, the punishment awarded is rather excessive. Therefore, I modify the punishment of postponement of increment for a period of one year without cumulative effect as "CENSURE"." and that was subsequently confirmed in the review as well as on further representation. In fact, while disposing of the review petition, the second respondent has found as follows: "2) I have carefully gone through the petition alongwith all connected records. There is no merit in this petition. The charge is rightly held as proved and the modification ordered by the appellate authority are just and proper. I decline to interfere with the same in the absence of any valid ground." and ultimately, the petition to the Government was rejected on 1.2.2006 with the following finding: "3. The Government have carefully and independently examined the petition of the individual with relevant records. He has adduced no fresh points for consideration and found that no further dilution of the punishment is required. The Government have decided to reject the petition of the individual as devoid of merits. Government accordingly order that the petition of Thiru K.Muniappan, Inspector of Police against the modified punishment of "Censure" imposed in PR.201/95 be rejected as devoid of merits." 8.1. Rule 17(1)(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 and Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 which are relating to imposing of minor punishments on the delinquent officers are similar in pari materia. To appreciate the same, the said relevant rules are extracted as follows: "Rule 17.(1)(a) of Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955: In every case where it is proposed to impose on a member of a service or a person holding a civil post under the State any of the penalties specified in items (i), (ii), (iii), (v) and (ix) in Rule 8 or in Rule 9, he shall be given a reasonable opportunity of making any representation that he may desire to make and such representation, if https://hcservices.ecourts.gov.in/hcservices/ any, shall be taken into consideration before the order imposing the penalty is passed: Provided that the requirements of this sub-rule shall not apply where it is proposed to impose on a member of a Service any of the penalties aforesaid on the basis of facts which have led to his conviction by a Court Martial or where the officer concerned has absconded or where it is for other reason impracticable to communicate with him: Provided further that, in every case where it is proposed, after considering the representation, if any, made by the Government servant, to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the Government servant or to withhold increments of pay without cumulative effect for a period exceeding 3 years or to withhold increment of pay with cumulative effect for any period, the procedure laid down in sub- rule (b) shall be followed before making any order imposing on the Government servant any such penalty." "Rule 3(a) of Tamil Nadu Police Subordinate Servic (Discipline and Appeal) Rules, 1955: In every case where it is proposed to impose on a member of a service any other penalties mentioned in clauses (a) (b) (c) (e) and (f) of Rule 2, he shall be given a reasonable opportunity of making any representation that he may desire to make and such representation, if any, shall be taken into consideration before the order imposing the penalty is passed: Provided that the requirement of this sub-rule shall not apply where it is proposed to impose on a member of a Service any of the penalties aforesaid on the basis of facts which have led to his conviction by a Court Martial or where the officer concerned has absconded or where it is for other reasons impracticable to communicate with him: Provided further that in every case where it is proposed, after considering the representation, if any, made by the member of the Service to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the member of the Service or to withhold increment of pay without cumulative effect for a period https://hcservices.ecourts.gov.in/hcservices/ not exceeding 3 years or to withhold increment of pay with cumulative effect for any period, the procedure laid down in such rule (b) shall be followed before making any order imposing on the member of the Service any such penalty." 8.2. The above said Rules contemplate a reasonable opportunity to make a representation to be given to the delinquent and in cases where the punishment is sought to be imposed in respect of retired government servant or retired member of service which is dealt with under the Tamil Nadu Pension Rules, which would adversely effect on the amount of pension, the procedure contemplated under Rule 17(1) (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 and Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 are to be followed. The procedure under the said Rules 17(1)(b) and 3(b) respectively include framing of charges, giving opportunity to file written statement of defence, conducting of enquiry with oral evidence, recording the same and preparing a report of enquiry, furnishing the same, etc., while such rigorous procedure is not contemplated under Rule 17(1)(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 and Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955. 8.3. On the facts and circumstances of the present case, originally, the petitioner was inflicted with a punishment of postponement of increment for a period of one year without cumulative effect, which was subsequently reduced to that of censure and therefore, no enquiry is contemplated as per Rule 3(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955. 8.4. The contention of Mr.K.Venkataramani, learned senior counsel for the petitioner is that the accident register shows that on 3.8.1991 at 11.30 a.m., the injured was conscious and his pulse rate was normal and therefore, there was no occasion for the petitioner to suspect the death of the injured on the next day, so as to obtain dying declaration through the Magistrate. A reference to the accident register shows as follows: "11.30 AM 3-8-91 .... O/E Pt is conscious, restless Pulse 80/mt. V&T fair Abdomen: Distended Tenderness over whole abdomen" 8.5. However, the charge is not only relating to the failure to obtain dying declaration through Magistrate, but also that the statement obtained from the injured under Section 161(3) of the Code https://hcservices.ecourts.gov.in/hcservices/ of Criminal Procedure was without the attestation of the Medical Officer and the same stood uncontroverted and therefore, on fact, it is not possible to accept the contention of the learned senior counsel for the petitioner that there is no ground for passing any order of punishment against the petitioner or that the punishment is perverse. 8.6. Even though under Rule 3(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 no enquiry is contemplated, since only a reasonable opportunity is required, the fact remains that in this case the Deputy Superintendent of Police, Salem Town was appointed as the Enquiry Officer and he has, in fact, conducted an enquiry and prepared a report. A reference to the impugned order of the fourth respondent imposing the punishment also shows that he has referred to the report of the Enquiry Officer which is evidenced from the portion of the impugned order dated 29.10.1996 which is as follows: "2. I concur with the findings of the enquiry officer and award the punishment of postponement of increment for a period of one year without cumulative effect." 8.7. It also remains a fact that the report of the Enquiry Officer has not been furnished to the petitioner. The stand taken by the respondents for that is that under Rule 3(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 no enquiry has been contemplated and therefore, the delinquent has no right to have the report of the Enquiry Officer and the non production of the report of the Enquiry Officer is not fatal to the disciplinary proceedings. It is relevant to point out at this stage that the Enquiry Officer appointed in this case is different from the disciplinary authority, namely the fourth respondent. 9.1. In the above said backdrop, the question to be decided is even in respect of imposing of minor penalties, the report of the Enquiry Officer is to be