IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23-03-2010 CORAM : THE HONOURABLE MR. JUSTICE B. RAJENDRAN W.P. No. 42822 of 2006 M. Sadasivam Sub Inspector of Police Killai Police Station Cuddalore District .. Petitioner Versus 1. The Inspector General of Police Villupuram Range 2. The Deputy Inspector General of Police Villupuram 3. The Superintendent of Police Cuddalore District .. Respondents O.A. No. 6879 of 1999 filed before the Tribunal and stood transferred to this Court, praying to call for the records of the first respondent in his C.No.B2/ PR69/99 dated 31.08.1999 pertaining to the impugned order and quash the same as illegal. For Petitioner : Mrs. A. Arulmozhi For Respondents : Mrs. Lita Srinivasan Government Advocate ORDER The applicant was appointed as Grade II Constable on 02.07.1962, promoted as Assistant Sub Inspector of Police in the year 1979 and posted as regular Sub Inspector of Police in the year 1982. While he was working at Cuddalore District during 10.11.1997 to 21.12.1998 at Veppur Police Station, on 03.12.1998, one Selvarani of Veppur Village came to the police station to give a complaint complaining rape on her. On being informed about the same, the applicant returned to the Station at about 3 pm. After preliminary enquiry, the applicant registered a case at 3.00 p.m on 03.12.1998. The applicant thought it fit to send the complainant for medical examination and sought the assistance of the women police by wireless message from Chidambaram Women Police Station to accompany the complainant. According to the applicant, as women constables were not available, he could not neither detain the complainant beyond 6 p.m in the station nor send the complainant to the hospital for medical check up on the same day. In the meantime, in the https://hcservices.ecourts.gov.in/hcservices/ midnight around 12 'O' clock, the Inspector of Police took charge of the investigation. Subsequently, the applicant was only assisting the Inspector of Police in searching the accused. Thereafter, he fell sick and submitted leave application between 09.12.1998 to 15.12.1998. According to the applicant, the Inspector of Police was the investigation officer, however, the Inspector of Police made a report on 14.12.1998 to the Deputy Superintendent of Police, Virudachalam alleging that the applicant has received the complaint from Selvarani and registered the case after some delay and he has not sent the victim girl immediately for medical check up. According to the applicant, immediately on reaching the police station at 3.00 pm, he registered a case and took efforts to send the victim girl for medical check. Since the investigation was taken up by the Inspector of Police at 12 'O' clock in the midnight, the report sent by the Inspector of Police is false and such a report was sent only to escape from his personal liability. Therefore, for the fault of the Inspector of Police, he should not be made to suffer. Only on the basis of the report of the Inspector of Police, the Deputy Superintendent of Police recommended for initiation of disciplinary proceedings against the petitioner on 15.12.1998, however, no preliminary enquiry was conducted by either the Deputy Superintendent of Police or by the Superintendent of Police regarding the sudden and motivated report sent by the Inspector of Police against him. Based on the above report, charges were framed against the applicant in PR No. 51/99 under Rule 3 (b) dated 16.02.1999 framing three charges against him and they are i) The applicant has belatedly registered the case in Crime No. 413 of 1998 under Section 376 of IPC ii) He has not sent the victim girl immediately for medical check up iii) Negligence of duty by not arresting the accused immediately. 2. The applicant has submitted his reply denying the charges. After detailed enquiry, in which the applicant has also participated, the enquiry officer has held that the first charge was not proved and the other two charges were proved and submitted his report on 25.07.1999. The report of the enquiry officer was submitted to the applicant on 17.08.1999 by the first respondent for which the applicant has also submitted his explanation on 22.08.1999. However, without considering the explanation offered by the applicant, the first respondent has passed the order dated 12.10.1999 imposing punishment of reduction in rank to lower post i.e., from the post of Sub Inspector of Police to the next lower post of Head Constable. According to the applicant, the punishment is excessive and disproportionate to the charges. Moreover, the punishment was imposed on him at the fag end of his retirement i.e., when he has only one year of left over service. Therefore, challenging the order of punishment, the petitioner has filed O.A. No. 6879 of 1999 before the Tribunal and obtained interim stay. During the pendency of the Original Application, the applicant also retired from service. On abolition of the Tribunal, the matter https://hcservices.ecourts.gov.in/hcservices/ stood transferred to this Court and re-numbered as WP No. 42822 of 2006. 3. The third respondent has filed a reply affidavit stating that the charges levelled against the petitioner are serious in nature especially when a complaint was given by a victim girl for the offence under Section 376 of IPC, the first and foremost duty of the petitioner is to ensure that the victim girl is sent to the hospital for medical check up and this preliminary and primary duty has not been performed by the petitioner which has resulted in injustice to the victim girl. Moreover, the petitioner, did not arrest the accused, but proceeded on leave. Therefore, for the derliction in duty on the part of the petitioner, disciplinary proceedings were initiated, an enquiry officer was appointed, who conducted enquiry and submitted his report. The report of the enquiry officer was also submitted to the petitioner and his explanation was received. Thereafter, the punishing authority, after going through the entire records and the facts and circumstances of the case thought it fit to impose the punishment, which cannot be said to be disproportionate or excessive. 4. The learned counsel for the petitioner would only contend that the punishment of reduction in rank to lower post i.e., from the post of Sub Inspector of Police to the next lower post of Head Constable is excessive and not in consonance with the charges. Moreover, such a punishment was imposed on the petitioner when he was about to retire in one year. 5. The learned Government Advocate appearing for the respondents would contend that the enquiry was conducted in a fair and objective manner after affording adequate opportunity to the petitioner. She would contend that even though the complaint was received from the victim girl on 03.12.1998, the petitioner had sent intimation requesting the assistance of women police for accompanying the victim girl only on 04.12.1998. If the petitioner had sent the message on 03.12.1998 at 3.00 p.m as alleged by him, he could have produced the copy of the message as defence document and disproved the same before the enquiry officer, but he has not done so which would clearly indicate that the vital duty of the petitioner to send the victim girl for medical check up has not been performed by him properly. The petitioner, knowing fully well that the Chairman of Nallur Panchayat Union was one of the accused in the case, has not taken immediate steps to secure him nor he has given any assistance to the Inspector of Police in conducting the investigation. Instead, the petitioner went on leave from 04.12.1998 to 08.12.1998 and again from 09.12.1998 without informing about his illness to his superiors. Therefore, the cumulative action of the petitioner would make it clear that he wants to assist the accused thereby he derlicted in his duty. In any view of the matter, an enquiry was conducted in which the petitinoer also participated and submitted his explanation. Thereafter, the disciplinary authority on considering the records has imposed the punishment of reduction in one rank alone considering that he has left over service of one year. Even this order was stayed by the https://hcservices.ecourts.gov.in/hcservices/ Tribunal and the punishment was not undergone by the petitioner till his retirement. Therefore, at this stage, there is no necessity for showing any sympathy or leniency to the petitioner and the relief sought for by him need not be granted. 6. The learned counself or the petitioner replied that the question of arrest of the accused did not arise in this case because the next day investigation was taken up by the Inspector of Police. In so far as enquiry report is concerned, out of the three charges, two charges alone held proved for which the petitioner has also given his explanation, but without considering the same, the disciplinary authority has imposed the punishment. On reading of the order passed by the disciplinary authority, it is clear that the disciplinary authority has not taken into consideration the submissions made before him and mechanically passed the order of reduction in rank for one year. In this context, the learned counsel for the petitioner relied on the decision of the Honourable Supreme Court reported in Ramvir Singh v. Union of India,(2009) 3 SCC 97 to say that this Court is empowered to reduce the punishment if it is found that the punishment is shockingly disproportionate and interfere with the quantum of punishment. 7. The learned counsel for the petitioner also relied on the decision reported in Rama Kant Misra vs. State of U.P., (1982) 3 SCC 346 for the proposition that that the labour court has the jurisdiction and power to substitute its measure of punishment under Section 11-A of the Industrial Disputes Act and equally, this Court, under Article 226 of The Constitution is having unfettered powers to interfere with the quantum of punishment. 8. The point for consideration in this writ petitioner is whether the punishment imposed on the petitioner is disproportionate to the charges and it is liable to be reduced. 9. It is seen from the records that before imposing the punishment, an enquiry was conducted in which the petitioner also participated. Therefore, it has to be held that the respondents have conducted the enquiry by following the mandatory procedures and it cannot be said to be improper or vitiated. 10. In this case, it is stated that the petitioner has rendered 37 years of service in the police force. Therefore, it is needless to mention that he is fully aware of the consequences of not sending the victim girl, who has come with a complaint complaining rape, to send for medical check up immediately without any delay. That must be the first and foremost duty of the petitioner, but the same was not done by him. Even investigation can commence later because, only based on the outcome of the medical report, the investigation can be completed. By reason of the delay caused by the petitioner, certainly, the investigation has been paralysed and the victim could not get justice. 11. The explanation offered by the petitioner is that he had sent intimation seeking the assistance of Women Police Constable https://hcservices.ecourts.gov.in/hcservices/ from Chidambaram. Such an intimation was also sent belatedly by the petitioner. Had really the petitioner sent the intimation as alleged by him, he could have produced the same before the enquiry officer in support of his defence and disproved the charges levelled against him. Even this was not done by the petitioner. 12. The disciplinary authority considering the gravity of the charges and the manner in which the petitioner had conducted himself and also the fact that he is going to retire in one year has imposed the punishment of reduction of rank. To the conscience of this Court, the punishment imposed on the petitioner cannot be said to be excessive or disproportionate to the charges. Moreover, the petitioner did not undergo the punishment imposed by reason of the interim stay granted by the Tribunal. The petitioner had retired from the services as Sub-Inspector of Police. In other words, the petitioner was not subjected to any humiliation by reason of the punishment because he retired only as Sub Inspector of Police by obtaining interim stay from the Tribunal. If the punishment is now implemented, the amount equivalent to that of his reduction in rank for one year is going to be deducted from the terminal benefits payable to the petitioner as the petitioner had already retired from service. 13. As already held by me, when the punishment imposed on the petitioner is not shocking the conscience of this Court, there is no scope for reducing the punishment. The fittest punishment to the petitioner considering the nature of charges can only be reduction in rank by one stage and no other punishment would meet the ends of justice. Therefore, this Court is not inclined to interfere with the quantum of punishment imposed on the petitioner and the writ petition is liable to be dismissed as devoid of merits. 14. In the result, the writ petition is dismissed confirming the order of punishment imposed by the first respondent. No costs. 15. The learned counsel for the petitioner submitted that for the past ten years, the petitioner was not paid any retirement benefits in view of the pendency of this case. 16. In view of the order passed today dismissing this writ petition, the respondents are directed to implement the order of punishment imposed on the petitioner so as to enable him to get is retirement benefits at the earliest possible time. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ rsh To 1. The Inspector General of Police Villupuram Range 2. The Deputy Inspector General of Police Villupuram 3. The Superintendent of Police Cuddalore District +1cc to Mr.A.Arulmozhi, Advocate Sr 19193 +1cc to Govt. Pleader Sr 19429 BK(CO) km/20.4. W.P. No. 42822 of 2006 https://hcservices.ecourts.gov.in/hcservices/