IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 22.11.2011 CORAM THE HONOURABLE MR. JUSTICE D. HARIPARANTHAMAN W.P.Nos.8723 of 2006 and 21042 of 2006 W.P.No.8723 of 2006: J.Kamalanathan .. Petitioner vs 1.The Superintendent of Police, Special Branch, CID, Chenai -4. 2.The Superintendent of Police, District Police Office, Kancheepuram District. 3.The Deputy Inspector General of Police, Chengalpattu Range, Chennai 16. .. Respondents W.P.No.21042 of 2006 K.Selvam .. Petitioner vs 1.The Deputy Inspector General of Police, CID Intelligence, Chennai-4. 2.The Superintendent of Police, Trivellore District. 3.The Deputy Superintendent of Police, Mandhuranthagam. 4.The Superintendent of Police, Kancheepuram District. .. Respondents https://hcservices.ecourts.gov.in/hcservices/ Prayer in W.P.No.8723 of 2006: The Original Application No.2137 of 2004 has been filed before the Tamil Nadu Administrative Tribunal and after abolition of the Tribunal, the same was transferred to this Court renumbered as writ petition seeking relief to call for the records pertaining to the order of the first respondent herein passed in his P.R.No.164/95, dated 17.4.1999 imposing a punishment of rank reduction by one stage for 3 years and the consequential order passed by the second respondent herein in his Proceedings D.O.548/2004, C.No.J1/P.R.164/95, dated 3.5.2004 reducing the applicant's rank from the post of Sub-Inspector of Police to that of the Head Constable for 3 years from the date of receipt of the slip order and further consequential order passed by the second respondent herein passed in his C.No.J1/P.R.164/95 dated 5.5.2004 implementing the order of the first respondent herein and quash the same. Prayer in Writ Petition No.21042 of 2006: The writ petition has been filed under Article 226 of the Constitution of India for issuance of writ of certiorari to call for the records of the respondents in connection with the impugned memorandum (with Minute in P.R.No.167/95)issued by the first respondent in Rc.No.D1/PR/6. Br/3033/04.F1/09653/06 dated 02/04/2006 and quash the same. For Petitioner ... Mr.Ravi Shanmugam in W.P.No.8723 of 2006 for M/s. Sudha Ravi Associates For Petitioner in ... Mr.K.Venkataramani in W.P.No.21042 of 2006 Senior Counsel for Mr.M.Muthappan For Respondents in ... Mr.V.Subbiah, both W.Ps. Special Govt. Pleader O R D E R The petitioner in Writ Petition No.8723 of 2006 was working as Sub Inspector of Police in Orathy Police Station and the petitioner in Writ Petition No.21042 of 2006 was working as Police Constable at Melmaruvathur Police Station during May 1995. The petitioner in W.P.No.8723 of 2006 is called as Sub Inspector and the petitioner in W.P.No.21042 of 2006 as Constable herein after. 2.On 25.5.1995, the Sub Inspector was in charge of Highway Patrol Vehicle No.7 (Registration No.TN 21-G 0075). The Sub Inspector ought to have moved from Padalam to Thozhupedu on G.S.T. Road in the above vehicle along with police party from 18.00 hours on 25.5.1995 to 06.00 hours on 26.5.1995. Accordingly, the Sub Inspector was on Highway Patrol duty along with two other Police Constables namely, https://hcservices.ecourts.gov.in/hcservices/ Mannarmannan and Thangaiah. The said police vehicle was driven by one Sridharan, Police Constable, Melmaruvathur Police Station. The police vehicle reached the Melmaruvathur Police Station along with the police party at 01.30 hours on 26.5.1995. On reaching Melmaruvathur Police Station, the Sub Inspector noticed that the front side head light of the vehicle was not functioning properly and therefore, the Sub Inspector had instructed the driver to take the vehicle to Padalam Police Station on 26.5.1995 morning. 3.While so, Thiru Sridharan, who drove the vehicle, requested the Constable to take the vehicle and leave it at Padalam Police Station as he was having pain in his hand due to a recent accident. 4.But, the Constable drove the vehicle in Highway Patrol party No.7 in mufti dress with two Police Constables, namely Mannarmannan and Thangaiah during the night time, instead of taking the vehicle in the morning. On their way, they used the above vehicle to trace Highway Prostitutes to indulge in sexual affairs. Near Sirunagalur bus stop on the GST Road, they noticed two women prostitutes Kaplana and Sumathi. On seeing them, the Constable stopped the vehicle and all of them got down from the vehicle. The Constable misbehaved and outraged the modesty of the above two women. At that time, the Constable took the vehicle towards Eastern side of the Main Road to hide it near the bush, where Sumathi had placed her son Suresh, who was aged about 7 years and he was sleeping on the floor in the open place. The vehicle that was driven by the Constable ran over the child Suresh and he died. Hence, Sumathi preferred a complaint at Melmaruvathur Police Station on 26.5.1995 and a Criminal Case was registered in Cr.No.132/1995 under Sections 354 and 304(A) IPC against the Constable. 5.Based on the aforesaid incident, the Sub Inspector was issued a Charge Memo in P.R.No.164/95, dated 29.10.1995 under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules. The following three charges were framed against the the Sub Inspector: "1.Gross neglect of duty in closing the High Way Patrol duty on the night of 25/26.5.95 at 01.30 hours itself without the orders of the superiors. 2.Reprehensible conduct in allowing driver PC 1339 to drive the High Way Patrol vehicle 7 Registration No. TN 21 G 0075 on the night of 25/26.5.95, which resulted in unwanted happenings and in fatal road accident vide Melmaruvathur Police Station Cr.No.132/95 u/s 354 and 304 (A) IPC. 3.Gross neglect of duty in not giving information to the superior officers immediately about the occurrence relating to the case in Melmaruvathur https://hcservices.ecourts.gov.in/hcservices/ Police Station Cr.No.132/95 u/s 354 and 304 (A) IPC. Though confronted by the senior officer to tell the truth". 6.An enquiry was conducted by the Deputy Superintendent of Police, Maduranthagam. The Enquiry Officer submitted his report dated 13.8.1998 holding that the first charge was not proved and the other two charges were proved. 7.The third respondent, Deputy Inspector General of Police sent a memorandum dated 16.12.1998 to the Sub Inspector enclosing the finding of the Enquiry Officer dated 13.8.1998 and directed the petitioner to make further representation based on the report of the Enquiry Officer. Accordingly, the petitioner made a further representation. Based on the further representation, the first respondent passed the impugned order dated 17.4.1999 in P.R.No.164/95 awarding punishment of reduction in rank for three years. 8.Though the order was passed in the year 1999, the same was communicated to the petitioner only on 5.5.2004. It is not disputed by the respondents. The petitioner filed Original Application No.6668 of 2001 seeking direction to the third respondent, Deputy Inspector General of Police to pass final orders on the disciplinary proceedings pending against him as the order dated 17.4.1999 passed by the first respondent in P.R.No.164/95 was not communicated to him. 9.The Tribunal on 15.10.2001 directed the third respondent to pass final orders on the enquiry report and the explanation given by the petitioner, within a period of 30 days from the date of receipt of the copy of that order. Even thereafter also, the order dated 17.04.1999 passed by the first respondent in P.R.No.164/95 was not furnished to the petitioner and the same was furnished to him only on 5.5.2004. Hence, the petitioner filed the present Original Application No.2137 of 2004. On abolition of the Tribunal, the said Original Application was transferred to this Court and renumbered as Writ Petition in W.P.No.8723 of 2006. 10.The respondents filed counter affidavit refuting the allegations. 11.I have heard the submission made by the learned counsel on either side. 12.The learned counsel for the petitioner has relied on page 4 of the counter affidavit and submits that in view of the page 4 of the counter affidavit, the punishment order is liable to be quashed. The learned counsel for the petitioner has also enclosed the Charge Memo issued to Mr.Sridharan, Melmaruvathur Police Station, who drove the vehicle initially. He has also brought to the notice of this Court https://hcservices.ecourts.gov.in/hcservices/ the allegations made against Mr.Sridharan. In view of the narration of the facts and the charges made against Thiru Sridharan, the other two charges should be held as not proved. 13.On the other hand, the learned Special Government Pleader has sought to sustain the impugned order based on the counter affidavit. 14.The reply of the respondents to paragraph 6 (3) of the petition i.e. found at page 4 of the reply affidavit, which is heavily relied on by the petitioner, is extracted hereunder: "As regards Para 6(3), it is submitted that Tr.Kamalanathan Ty.Sub-Inspector of Police, formerly of Orathy Police Station was in charge of the Police Mobile Party No.7 moved on the High Way Patrol from Padalam Police Station at 24.00 hrs. on 26.05.1995 along with PC 1555 Mannarmannan and PC 1257 Thangaiah with driver PC 943 Sridhar of Melmaruvathur Police Station. They went round High Way Patrol duty on GST Road and reached Melmaruvathur Police Station at about 01.30 hours having noticed that the head light of the Jeep was not burning properly, Sub-Inspector of Police, Kamalanathan sent a wire less message to the base control room of Kanchipuram, informing the position of the jeep at 01.30 hours. The Sub- Inspector of Police, instructed the driver PC 943 Sridhar to take the vehicle to Padalam Police Station in the morning, since it was not in a fit condition to move further due to night hours, the Sub-Inspector of Police, stayed back at Melmaruvathur Police Station till 06.00 hours. Thiru Sridharan driver PC 943 requested PC 1339 Selvam of Melmaruvathur Police Station to take the jeep and to produce the same at Padalam PS, since it was difficult for him to drive the jeep due to the pain on his hand, consequent to a recent accident PC 1339 Selvam drove in mufti on his own accord along with two Pcs. 1257 Thanghaih and PC 1555 Mannarmannan of Padalam Police Station who were already accompanying the Sub-Inspector of Police on High Way Patrol, without getting permission from higher official. On locating the two prostitutes on the High Way, he has stopped the jeep at the place of occurrence has outraged the modesty of the ladies with a desire to have sexual intercourse with them. He drove the jeep in a rash and negligent manner and caused the death of one male child aged 7 years old by name Suresh son of Sumathi on the spot". https://hcservices.ecourts.gov.in/hcservices/ 15.Likewise, the Charge Memo issued to Mr.Sridharan is also extracted hereunder: "STATEMENT OF ALLEGATIONS: You are working as Gr.II Police Constable from 14.5.1994 (now under suspension). On 25.5.1995, Thiru J.Kamalanathan, Sub Inspector of Police, Orathy Police Station was in charge of Highway Patrol Vehicle No.7 (Registration No.TN 21 – G 0075). He ought to have moved from Padalam to Thozhupedu on the G.S.T. Road in the above vehicle along with a Police party from 18.00 hours on 25.5.1995 to 06.00 hours on 26.5.1995. Accordingly he was on highway patrol duty along with two PCs 1555 Mannarmannan and 1257 Thangaiah of Padalam Police Station. The vehicle was driven by you. At 01.30 hours on 25/26.5.1995 you had reached Melmaruvathur Police Station along with the police party. On reaching Melmaruvathur Police Station, the Sub Inspector of Police had noticed that the front side head light of vehicle was not functioning properly and hence he had instructed you to take the vehicle to Padalam Police Station on 26.5.1995 morning. Subsequently, you called P.C. 1339 Selvam of Melmaruvathur Police Station and stated that you could not drive it since you were having pain in your hand due to a recent accident and requested him to take the vehicle and park it at Padalam Police Station. As such, the driver P.C.1339 Selvam who is not authorized to drive the Highway Patrol party No.7 Vehicle drove it in mufti dress with two uniformed P.C.1555 and 1257. On their way to Padalam Police Station, they used the above vehicle to trace the Highway prostitutes to indulge in sexual affairs. Between Sirunagalur bus stop on the GST road they noticed two women prostitutes Kalpana and Sumathi. On seeing them, PC 1339 Selvam stopped the vehicle and all of them got down from it. Then P.C.1339 Selvam misbehaved and outraged the modesty of the above two women. The other two PCs 1555 and 1257 also behaved in an indecent manner with these women with a bad intention to have sexual intercourse. At that time, PC 1339 Selvam took the vehicle towards the Eastern side of the main road to hide it near the bush where Sumathi had placed her son Suresh, aged about 7 years who was sleeping on the floor in the open place. While PC 1339 was driving the vehicle near the bush, the wheel of the vehicle dashed against the boy Suresh. When Sumathi https://hcservices.ecourts.gov.in/hcservices/ shouted, the three PCs left the place immediately in the Highway Patrol vehicle No.7. The injured Suresh was taken to the Government Hospital, Madurantakam by his mother Sumathi and Kalpana on 25/26.5.1995 at 3.05 A.M. for treatment where the Medical Officer examined the injured Suresh and declared that the child was already dead. In this connection, Sumathi preferred a complaint at Melmaruvathur Police Station on 26.5.1995 at 08.30 hours which was registered in Cr.No.132/95 u/s 354 and 304 (A) IPC by H.C.457 Subramanian. Thus your conduct is highly reprehensible". 16.As rightly contended by the learned counsel for the petitioner, the reply affidavit as well as the charges found in the Charge Memo issued to Sridharan make it clear that the findings of the Enquiry Officer holding that charges 2 and 3 are established is totally perverse. Hence, the impugned order dated 17.4.1999 passed in P.R.No.164/95 based on such enquiry finding is liable to be quashed. 17.While Thiru Sridharan was imposed with a minor penalty of reduction in time scale of pay by two stages for two years without cumulative effect, the Sub Inspector was imposed with major penalty. The Sub Inspector retired on 30.4.2004. Since the punishment was imposed on the eve of retirement, the Sub Inspector was paid retirement benefits only for the post of Head Constable and not for Sub Inspector of Police. 18.For all the aforesaid reasons, I am of view that the impugned order is liable to be quashed and accordingly, the impugned order is quashed. 19.The third respondent is directed to take all the steps to settle the terminal benefits payable to the Sub Inspector as Sub Inspector of Police, as he was paid terminal benefits as Head Constable within a period of 12 weeks from the date of receipt of a copy of this order. 20.The writ petition No.8723 of 2006 is disposed of on the above terms. No costs. 21.As far as W.P.No.21042 of 2006 is concerned, the Constable questioned the impugned Memorandum (with Minute in P.R.No.167/95) issued by the first respondent in Rc.No.D1/PR/6. Br/3033/04.F1/09653/06 dated 02.04.2006 enclosing the enquiry report and seeking further representation from him on the enquiry report. Instead of submitting the further representation, the Constable filed the above said writ petition. https://hcservices.ecourts.gov.in/hcservices/ 22.Hence, I am of the view that the writ petition is not maintainable, as impugned Memorandum dated 2.4.2006 directing the petitioner to submit further representation on the report of the Enquiry Officer, is in the nature of show cause notice. 23.The learned Special Government Pleader submits that two Police Constables namely Mannarmannan and Thangaiah also proceeded with and they were dismissed from service and those Police Constables also questioned the order of dismissal before this Court and the same are pending. 24.In such circumstances, I am of the view that the writ petition is not maintainable. Accordingly, the petition is dismissed. While dismissing the writ petition, the petitioner is given liberty to make further representation on the findings of the enquiry officer before the authority concerned within a period of six weeks from the date of receipt of a copy of this order and after the receipt of such representation, the fourth respondent is directed to pass an appropriate order thereon on merits and in accordance with law within a period of eight weeks thereafter. 25.If the petitioner Constable fails to make such further representation within a period of six weeks on receipt of the copy of this order, the authority concerned would pass further orders as if no further representation was made by the petitioner Constable in spite of the liberty is being given by this Court. 26.The writ petition No.21042 of 2006 is dismissed with the aforesaid observations. No costs. Consequently, connected M.P.Nos.1 of 2006 and 1 of 2007 are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar cla To 1.The Superintendent of Police, Special Branch, CID, Chenai -4. https://hcservices.ecourts.gov.in/hcservices/ 2.The Superintendent of Police, District Police Office, Kancheepuram District. 3.The Deputy Inspector General of Police, Chengalpattu Range, Chennai 16. 4.The Deputy Inspector General of Police, CID Intelligence, Chennai-4. 5.The Superintendent of Police, Trivellore District. 6.The Deputy Superintendent of Police, Mandhuranthagam. 7.The Superintendent of Police, Kancheepuram District. 1 CC to M/s.Sudha Ravi, Advocate, SR.71510 1 CC to M/s.M.Muthappan, Advocate, SR.71526 1 cc To The Government Pleader, SR.71610 W.P.Nos.8723 and 21042 of 2006 RSI(CO) SRA(24/11/2011) https://hcservices.ecourts.gov.in/hcservices/