4IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.8.2010 CORAM: THE HON’BLE MR. JUSTICE N.PAUL VASANTHAKUMAR W.P.No. 6292 of 2006 S.Rajan ... Petitioner -vs- 1. The Superintendent of Police, Vellore District. 2. The Deputy Inspector General of Police, Vellore Range, Vellore. ... Respondents Prayer : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorari calling for the records of the respondents in connection with the impugned order passed by the respondents 1 and 2 in P.R.No.38/2001 dated 20.3.2002 and C.No.B2/AP.11/2002 dated 17.4.2002 respectively and quash the same and pass such further or other orders. For Petitioner : Mr.K.Venkatramani, Senior Counsel for Mr.M.Muthappan For Respondents : Mr.R.Murali, G.A. O R D E R The prayer in the writ petition is to quash the order dated 20.3.2002 passed by the first respondent confirmed by the second respondent by order dated 17.4.2002. 2. The case of the petitioner, who was a Head Constable, is that he entered into service as Police Constable in the District Armed Reserve, Vellore on 8.8.1984. He was transferred to Law and Order wing in the year 1997 and while he was serving as a Police Constable in Vaniyambadi Police Station on 7.8.1997, he took medical leave. According to the petitioner, he has been falsely implicated in a criminal case in Crime No.227 of 2001 under sections 294 (b) and 354 IPC based on the complaint preferred by one Chinnathai, W/o. Samundi Gounder alleging that the petitioner attempted to misbehave with her. The said incident was alleged to have been taken place near Vaniyambadi Police Station. According to the petitioner, he was not available in the said place at that time. https://hcservices.ecourts.gov.in/hcservices/ 3. The petitioner was placed under suspension on 4.4.2001 due to the involvement in the said criminal case and a charge sheet was also filed in the said criminal case before the Judicial Magistrate- cum-District Munsif Court, Vaniyambadi for the offences under sections 294(B), 354 and 323 IPC on 27.4.2001. During the pendency of the matter, charge was framed under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955, against the petitioner in P.R.No.38 of 2001 dated 3.8.2001. The petitioner submitted his explanation to the charge memo on 6.9.2001 and stated that criminal case is pending with regard to the same allegation/incident and therefore disciplinary proceedings may be kept in abeyance. The Deputy Superintendent of Police, Ambur was appointed as Enquiry Officer. The petitioner objected to conduct the enquiry during pendency of the criminal case and refused to cross- examine any witness during the departmental enquiry. Enquiry Officer gave a finding that the charges are proved. Based on the enquiry Officer's report, the dismissal order was passed by the first respondent on 20.3.1999 and the appeal filed by the petitioner was also rejected by the second respondent on 17.4.2002, against which this writ petition was filed. 4. The respondents have filed a counter affidavit opposing the contention and submitted that the petitioner was serving in Vaniyampadi Town Police Station from 7.8.1997. He was on medical leave from 31.3.2004. On 3.4.2001 at about 7.00 hrs. one Chinnathai, ages 36, W/o. Samundi Gounder gave a complaint that the petitioner misbehaved with her by holding her right hand and dragged her towards him in a public place in front of Saravana Bhavan Hotel at Vaniyambadi town bus stand. When she struggled with him to get herself relieved, she raised alarm and shouted for help. On hearing her cry for help, some persons from hotel and nearby came to her rescue and relieved her from the clutches of the petitioner. The said victim sustained bleeding injuries in her right hand due to breaking of her bangles. The petitioner was identified to be a Police Constable working in Vaniyambadi Town Police Station by name S.Rajan. The petitioner not only misbehaved with the said lady by using filthy language, but also dragged her by hand and outraged her modesty in public place and also spoiled the image of the police force. 5. On the basis of the complaint lodged by the said lady before the Sub Inspector of Police, Law and order, Vaniyambadi on 3.4.2001, a criminal case was registered and the petitioner was arrested on the same day and he was remanded to judicial custody and thereafter 3(b) charge was framed in P.R.38 of 2001. The Deputy Superintendent of Police, Ambur was appointed as Enquiry Officer, who conducted the enquiry and held the charges as proved. The said findings given by the enquiry officer was accepted by the disciplinary authority and the petitioner was removed from service by an order dated 20.3.2002. Against the said punishment of removal from service, the petitioner https://hcservices.ecourts.gov.in/hcservices/ preferred an appeal before the second respondent which was also rejected on 17.4.2004 by a speaking order. 6. Insofar as the criminal case is concerned, benefit of doubt was given and the Criminal Court acquitted the petitioner on benefit of doubt. During departmental enquiry conducted, the petitioner was given all reasonable opportunity and he was asked to cross-examine each witnesses after the chief examination was over. The petitioner did not choose to cross-examine and put his signature. The enquiry officer gave his findings on the basis of deposition given by P.Ws.1 to 4 and prosecution Exs. 1 to 9. It was established that the charges levelled against the petitioner and the charge being very serious, the petitioner was removed from service which was also confirmed by the appellate authority, taking note of the involvement of a Police Constable in such a misbehaviour with the lady. 7. The learned Senior Counsel appearing for the petitioner submitted that the criminal case registered against the petitioner in C.C.No.12 of 2001 ended in acquittal on 10.9.2004 as the witnesses turned hostile and therefore, the punishment imposed for the very same incident in the departmental proceedings is liable to be set aside. The Learned Senior Counsel also submitted that the enquiry officer proceeded with the enquiry without considering the request to postpone the enquiry during the pendency of the criminal case. Learned Senior counsel further submitted that the appellate authority has not given any reason to dispose of the appeal in terms of Rule 6 (c) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955, and therefore, in any event, the order of the appellate authority cannot be sustained. The learned Senior counsel cited the judgment of the Supreme Court in Chairman Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney and Others reported in (2009) 4 SCC page 240 in support of his contention. 8. The learned Government Advocate for the respondents submitted that there is no bar to postpone the department enquiry during the pendency of the criminal case and the petitioner also not obtained any stay for stopping the enquiry proceedings. The learned Government Advocate also submitted that the petitioner was present when the witnesses were examined and the victim, namely Chinnathai was examined as P.W.1 and the petitioner refused to cross-examine the said witnesses and therefore, the finding was given by appreciation of the deposition given by the witnesses as well as the documents marked and the said finding was accepted by the disciplinary authority and the punishment was imposed and the appellate authority also confirmed the same. 9. The point for consideration in the writ petition is whether the initiation of disciplinary proceedings in P.R.No.38 of 2001 against the petitioner is right during pendency of criminal case and https://hcservices.ecourts.gov.in/hcservices/ whether the petitioner was given sufficient opportunity to disprove the charges levelled against him during departmental enquiry. 10. Admittedly after registration of the criminal case 3(b) charges were framed against the petitioner and the petitioner was given sufficient time to submit his explanation and the petitioner also submitted his explanation. The said explanation was found as not satisfactory and enquiry officer was appointed. Enquiry Officer gave notice for appearance of the petitioner and the petitioner also appeared and he refused to cross-examine the witnesses produced by the prosecution by stating that till the disposal of the criminal case, the enquiry may be postponed. The said request was rejected by the enquiry officer and he proceeded with the enquiry. In the absence of any legal impediment to proceed with the enquiry, even though criminal case was pending for the above said allegations, the enquiry officer rightly proceeded with the enquiry. The prosecution witness namely Witness No.1, Chinnathai has deposed the incident happened on 2.4.2001 which reads as follows: PROSECUTION WITNESS I: Tmt.Chinnathai w/o Samudi Goundar deposed among other things, that she had along with her relatives gone out to Vaniyambadi Town from her village Athurkuppam Kollakottai, got her elder daughter Parimala admitted in the Govt. hospital, Vaniyambadi, on 2.4.2001 at about 11 P.M.for treatment after delivery of her first female child at home, for some stomach trouble. That after staying with her daughter at the hospital throughout the night on 2.4.2001, she came to Saravana Bhavan Hotel at Vaniyambadi Town bus stand on 3.4.2001 at 7.00 hours to get "Semia" for her daughter. That when she entered the hotel the delinquent P.C. present during the O.E., had given at her a deep look, on her return from the hotel as there was no "semia" available, the delinquent who was still standing at the gate of the hotel had questioned her as to whether she knew who he was. When she replied that she did not know him, he retorted in filthy language. So saying he had suddenly caught hold of her right hand. In his act her glass bangles worn, were broken and the broken glasses caused her bleeding injuries, when her desperate efforts made to get herself relieved from his clutches failed, she made a hue and cry for help. On hearing her cry, one person by name Murugesan, had come to her rescue and released her from his clutches. One Govindammal and other woman who were present there and also others rushed there and sent her to hospital. The incident of misbehaviour of the delinquent was witnessed by the public and among them were Tr.Murugesan (P.W.2),Govindammal (P.W.3). The public who were present then, had identified the delinquent to be a Police Constable serving in Vaniyambadi Town P.S. by name Raja. She further deposed that after she told the matter https://hcservices.ecourts.gov.in/hcservices/ to her husband and relatives, she went to Vaniyambadi Town P.S.on 3.4.2001 at 4 P.M.and gave her statement about the incident occurred. The W.S.I. of Police of the station recorded her statement, obtained her signature in the statement and sent her to Govt.hospital, Vaniyambai, for treatment where she was given treatment as o.P. and sent home. She filed her statement given before the W.S.I. on 3.4.2001 as Ex.P.1. P.W.1 was not cross examined by the delinquent". 11. The enquiry officer has noted that P.W.1 was not cross- examined by the delinquent officer and the said statement was given by the victim in the presence of the petitioner. Similar version was also given by the prosecution witness Nos.2,3 and 4. Even though the petitioner was given a chance to cross-examine the said witnesses, he failed to avail of the said opportunity and therefore, the enquiry officer was left with no other option except to give a finding based on the said depositions and the documents marked. The charges levelled against the petitioner were found proved. The enquiry officer submitted his report and the disciplinary authority accepted the said report and issued a show cause notice for which also the petitioner refused to submit his reply. Considering the gravity of the allegation as well as the proof of the said allegation through the enquiry conducted, the disciplinary authority imposed the order of removal from service. 12. The petitioner filed appeal against the said order on 27.3.2002 before the second respondent, which was also rejected by the second respondent. Considering the gravity of the allegation levelled against the petitioner and the proof of the same, learned Senior Counsel for the petitioner submitted that the appellate authority has not considered the issue raised by the petitioner regarding the penalty whether it is adequate, excessive or inadequate in terms of rule 6 (3) of the Tamilnadu Police Subordinate Service Rules and the same is in violation of the principles of natural justice. 13. From the perusal of the order of the appellate authority dated 17.4.2002, it is evident that the charges levelled against the petitioner is extracted. The enquiry officer's finding that the charge was proved, was also noted and the said finding was accepted by the first respondent by order dated 20.3.2002 is also taken note of and also gave reason for confirming the order of the disciplinary authority, which reads as follows: "4. I have carefully gone through the appeal with connected records: The charge against the appellant has been well established through the oral evidence of prosecution https://hcservices.ecourts.gov.in/hcservices/ witnesses 1 to 4 and documentary evidence P1 to P10. The prosecution witnesses 1 to 3 clearly deposed about that the appellant has misbehaved with one Tmt.Chinnathai w/o. Samudi and outraged her modesty by dragging her. Further, the appellant has not elicited any point during the oral enquiry and not cross examined the prosecution witnesses. This shows the appellant carelessness as well as acceptance of his guilty. The appellant had also failed to submit his further representation in the departmental proceedings. 5. Under the circumstances, there is no valid reason to interfere with the punishment awarded to the appellant. Hence, the appeal petition is rejected." 14. In the light of the said order passed by the appellate authority, I am satisfied that the appellate authority has also disposed of the appeal in terms of Rule 6(c) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, by stating brief reasons and there is no infirmity in the said order. 15. The decision relied on by the learned Senior Counsel for the petitioner reported in (2009) 4 SCC 240 (Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney) will not help the petitioner. In para 5 of the said judgment it is held thus, "5. In our opinion, an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. In fact, the said decision in Prabhu Dayal Grover case2 has itself stated that the appellate order should disclose application of mind. Whether there was an application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reasons at all. That order must contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while affirming the order of the disciplinary authority." In the said case the appellate authority without stating any reason rejected the appeal, which was set aside and remanded by the Supreme Court. 16. The petitioner, being a Police Constable, ought not have given such room for giving a complaint by a public that too by a https://hcservices.ecourts.gov.in/hcservices/ lady, and having involved in a criminal case and merely because he was acquitted in a criminal case solely on benefit of doubt, particularly with regard to the injury on the victim that there is possibility of getting injured if she fell down. The said finding given by the criminal court cannot be treated as a valid defence to attack the punishment imposed against the petitioner. Such kind of police person cannot be retained in service to maintain discipline and morality. 17. Acquittal in criminal case on technical grounds cannot be a reason to quash the disciplinary proceedings and the said judgment in the criminal case cannot be relied on to set aside the punishment imposed in the disciplinary proceeding. The Supreme Court in the decision reported in AIR 2009 SC 2463 (Seth Ramdayal Jat v. Laxmi Prasad) in paragraph 21 held that the judgment in a criminal case was not relevant in deciding civil liability. 18. The power of the Court in disciplinary matter is clearly explained by the Supreme Court in the decision reported in (2009) 8 SCC 310 (State of U.P. v. Man Mohan Nath Sinha). In para 15 it is held thus, "15. The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making process. The court does not sit in judgment on merits of the decision. It is not open to the High Court to reappreciate and reappraise the evidence led before the inquiry officer and examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusions. In the instant case, the High Court fell into grave error in scanning the evidence as if it was a court of appeal. The approach of the High Court in consideration of the matter suffers from manifest error and, in our thoughtful consideration, the matter requires fresh consideration by the High Court in accordance with law. On this short ground, we send the matter back to the High Court." Maintaining strict discipline in Police force is emphasised by the Supreme Court in the decision reported in 2009 (8) Supreme 27 (State of U.P. v. Ram Daras Yadav), In para 10 it is held thus, "10. We are quite conscious of the fact that we are dealing with a disciplined police organization. Discipline is the backbone of the police force. Highest degree of discipline is imperative for the smooth functioning of a police https://hcservices.ecourts.gov.in/hcservices/ force. ........" 19. Applying the principles laid down in the above cited decisions to the facts of this case, and the procedures having been followed and punishment imposed, I am unable to see any infirmity in the order of punishment. There is no merits in the writ petition and hence the writ petition is dismissed. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar aes/vr To 1.The Superintendent of Police, Vellore District. 2.The Deputy Inspector General of Police, Vellore Range, Vellore. 1 cc to Mr.M.Muthappan, Advocate, Sr.No.62842 1 cc to Government Pleader, Sr.No.62928 W.P.No. 6292 of 2006 NSM {CO} TP/8.9.2010. https://hcservices.ecourts.gov.in/hcservices/