IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.09.2011 CORAM THE HONOURABLE MR. JUSTICE T.RAJA W.P.No.28741 of 2004 M.Jayakumar ... Petitioner Vs. 1. The Director General of Police, Kamarajar Salai, Mylapore, Chennai – 600 004. 2. The Deputy Inspector General of Police, Coimbatore Range, Coimbatore. 3. The Superintendent of Police, Erode District, Erode. ... Respondents PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of certiorarified mandamus as stated therein. For Petitioner : Mr.AR.L.Sundaresan, SC for Mr.I.C.Vasudevan For Respondents : Mr.S.V.Durai Solaimalai, AGP ORDER The petitioner herein seeks for issuance of writ of certiorarified mandamus to quash the proceedings of the Superintendent of Police, Erode District, Erode/third respondent herein, made in P.R.J1/2/97, dated 03.06.2002, and the proceedings of the Deputy Inspector General of Police, Coimbatore Range, Coimbatore/second respondent herein, made in C.No.D2/A.P./30/2002, dated 20.11.2002, by calling for the records connected thereto and consequently, to direct the respondents herein to reinstate the petitioner as Police Constable with all consequential attendant service and monetary benefits including seniority, pay fixation, promotion and arrears of pay due to the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 2. Learned Senior counsel appearing for the petitioner submitted that after the petitioner was appointed as Police Constable Grade II on 25.05.1988, he was allotted to Erode District. After 8 years of service, he was posted to 'Q' Branch, Erode, and continued in the said post till 10.11.1996, and subsequently, on 11.11.1996, he has given passport to one Rameswaran at Mandapam Camp to assist the 'Q' Branch staff there for surveillance. Thereafter, he was reported back for duty at 'Q' Branch in Erode on 18.11.1996. After joining the post at Erode, the Q Branch Sub-Inspector instructed the petitioner to go to Bhavanisagar Ceylon Refugee Camp to maintain vigil against infiltration of LTTE cadres. In the meanwhile, on the basis of confessional statement of one Mr.Prakash, dated 20.11.1996, the petitioner was wrongly implicated in criminal cases filed for the offences under Section 379 IPC in Crime No.841/96 on the file of the Sub-Inspector of Police, Karungalpalayam, Crime No.2089/96, Crime No.2093/96 on the file of the Sub-Inspector of police, Erode Tow Police Station and in Crime No.702/96 on the file of Erode South Police Station, and as a result, he was also placed under suspension on 22.12.1996, for which, he was also issued with charge memo in P.R.No.2/97, under Rule 3(b) of TNPSS (D&A) Rules, 1955, with the following charges; (i) that he was unauthorisedly absent from 18.11.1996 while he was working as Police Constable in Erode Q Branch; (ii) that he has involved in the motor vehicle theft case but not informed the department about the involvement in criminal case and voluntarily surrendered before the Judicial Magistrate Court, Kangeyam. In the departmental enquiry, that was initiated after a lapse of 5 years, totally 8 witnesses were examined on the side of the prosecution and 11 documents were marked and most of the witnesses belong to the police department. Even though the petitioner denied the charges and submitted his explanation, the Enquiry Officer, after holding the enquiry, on its completion, submitted a report holding that the charges levelled against him were proved, without considering the documents marked on the side the petitioner as well as the acquittal of the petitioner from the criminal cases. Therefore, it was submitted that the Enquiry Officer, by wrongly giving a finding that the petitioner had involved in 4 criminal cases, even though the matters were pending before the Criminal Court, found him guilty on the basis of a confession statement of one Mr.Prakash about his involvement in criminal cases, and therefore, it was contended that, such an approach of the Enquiry Officer is unsustainable in law. Thereafter, the Superintendent of Police, Erode, on receipt of the enquiry report, being the Disciplinary Authority, in his proceedings dated 03.06.202, had wrongly dismissed the petitioner from service and treated the period of suspension from 29.11.1996 as penalty. Aggrieved by the said order, when an appeal https://hcservices.ecourts.gov.in/hcservices/ was filed before the Deputy Inspector General of Police, Coimbatore Range, Coimbatore / second respondent herein, the second respondent, in his proceedings dated 30.06.2002, has rejected the appeal preferred by the petitioner. Aggrieved by the said order, the petitioner has submitted a representation on 10.01.2003 to the Director General of Police, but no reply whatsoever has come from the first respondent. Therefore, it was submitted that since the petitioner has been dismissed from service in his early age of 40 years and still he has got 18 years of service, the order of dismissal passed by the third respondent as confirmed by the second respondent is liable to be quashed, for the reason that the Criminal Court has fully acquitted the petitioner in respect of Crime No.702/96 on the file of the Erode South Police Station in C.C.No.89/97. Secondly, in respect of Crime No.841/96 on the file of Karungalpalaya Police Station in C.C.No.192/97 before the Judicial Magistrate Court No.I, Erode, and in respect of Crime No.2089/96 on the file of Erode Town Police Station in C.C.No.449/97 before the Judicial Magistrate No.II, Erode, and in respect of Crime No.2093/96 on the file of Erode Town Police Station in C.C.No.283/97 before the Judicial Magistrate Court No.II, Erode, the petitioner was acquitted. Therefore, it was contended that the Disciplinary Authority ought not to have prejudiced over the involvement of the petitioner in the above criminal cases, as they are admittedly a false case, in view of the dismissal of criminal cases against the petitioner. 3. Adding his submission, he further contended that, in a single order, the Disciplinary Authority for one delinquency have not only imposed the penalty of dismissal from service, but also treated the period of suspension as a penalty. Such imposition of multiple penalty on the petitioner for one delinquency, is violative of law laid down by the Apex Court in R.S.Marigowdar v. Karnataka Food and Civil Supplies Corpn. Ltd., Bangalore & others (2000 (3) SLR page 200). Further, it was argued that the allegation of unauthorised absent from duty from 18.11.1996 without any permission from his superior officers could have been considered by keeping in mind the difficulties faced by the petitioner, as he was facing arrest in view of false case registered against him on the basis of confession statement given by one Mr.Prakash on 20.11.1996. Further, second charge, that he has committed gross indisciplinary conduct in surrendering before the Judicial Magistrate, Kangayam on 29.11.1996, without informing the said fact to the superior officers about the involvement in Motor Vehicle theft case, legally does not warrant initiation of disciplinary proceedings under Rule 3(b). Ignoring these facts, the respondents dismissed him from service, for the reason that the Enquiry Officer had found him guilty of all the charges levelled against him, which is highly excessive and shocking the judicial conscience. On that basis, he prayed for setting aside the impugned orders passed by the respondents. https://hcservices.ecourts.gov.in/hcservices/ 4. Per contra, learned counsel appearing for the respondents submitted that, on 20.11.1996 at 16.00 hrs., one Saminathan in Erode had preferred a complaint in the Karungalpalayam Police Station, stating that his Ambassador car bearing registration No.TDQ 8630 has been stolen by some unknown culprits on 08.09.1996 at about 20.00 hrs., which is parked in front of Devimahal Kalyanamandapam, Bhavani Road, Erode, which has been registered under Section 379 IPC in Cr.No.841/1996. Similarly, another theft of TVS Suzuki committed by some unknown culprits on 07.10.1996 at about 19.30 hrs., which is parked, in front of C.K.Hospital, was registered in Erode South Police Station in Cr.No.702/1996 under Section 379 IPC. Subsequently, another complaint in respect of the thefts of two TVS Suzuki motor cycles took place in front of Maman Priyani Hotel on 29.10.1996 at about 22.45 hrs. and in front of Balasubramaniam hospital, Nethaji road, on 18.11.1996 at about 21.00 hrs. were registered in Erode Town Police Station n Cr.Nos.2089/96 and 2093/1996, dated 20.11.1996 and 21.11.1996 respectively. Thereafter, upon investigation, one Prakash has given a confession statement admitting that he along with Police Constable Jayakumar of the "Q" Branch, Erode, had jointly committed theft of Car TDQ, which was parked infront of Devi Mahal, Bhavani Road, Erode and also two more TVS Suzuki Motor Cycles in Erode Town. As per the confession of the Advocate Prakash, two TVS Suzuki relating to Cr.Nos.702/1996 and Cr.No.2089/1996 on the file of Erode South Police Station were recovered on 20.11.1996, and thereafter, the said Prakash sent for judicial custody. Subsequently, one Thangaraj S/o Palanisamy, 48 Kalavai Ura Street, Nasiyanur, infront of College Bhavan, Erode, who was found on 25.11.1996, has also made a confession statement, admitting the commission of theft of car and two more TVS Suzuki along with Advocate Prakash, 'Q' Brach Police Constable Jayakumar and Palanisamy. Therefore, on the basis of two confessional statements, the Police had arrested one Thangaraj on 25.11.1996 and sent for remand and subsequently, on 29.11.1996, the petitioner herein had surrendered before the Judicial Magistrate, kangayam, and he was remanded to the Judicial Custody for 5 days, wherein his voluntary confession has been recorded. In his confession, he had confessed the commission of offence along with Advocate Prakash and one Thangaraj and Palanisamy. Thereafter, in view of arrest and judicial custody, he remained unauthorisedly absent and he also did not bring to the notice of the department with regard to his involvement in other cases. Therefore, he was issued with a charge memo. Subsequently, the Enquiry Officer, after holding the enquiry, found him guilty, and the Disciplinary Authority, by taking note of the fact that the petitioner, who was working as a Police Constable, have involved in very serious criminal cases, dismissed him from service, accepting the report submitted by the Enquiry Officer, and thereafter, his appeal was also rejected by the Appellate Authority. Therefore, it was submitted that, it is not open to the petitioner to https://hcservices.ecourts.gov.in/hcservices/ say that the charges levelled against him were minor, therefore, he should not be imposed with a major penalty of dismissal from service. 5. Further, it was submitted that, when the petitioner himself approached the Tamil Nadu Administrative Tribunal, after issuance of charge memo, by filing O.A.No.3661/97, the Triubnal, by order dated 20.05.1997, has granted an order of interim stay for two weeks and the same was also extended till 21.07.1997, and subsequently, the same was also dismissed as withdrawn on 28.09.2001. Since the Tribunal has granted an order of interim stay, the enquiry could not be conducted, therefore, the delay in conducting oral enquiry was due to the reasons directly attributed by the petitioner and not on the part of the respondents. However, oral enquiry was resumed and completed on 20.03.2002, hence, it was submitted that the Enquiry Officer had rightly held the charges as proved based on the evidence and documents adduced during the oral enquiry. 6. Having perused the facts of the case as well as the argument on both sides, this Court feels that the argument advanced by the learned counsel for respondents with regard to the delay finds much force. Admittedly, in the case on hand, the petitioner was not only implicated for one or two charges, almost for four charges involving thefts of Car and two TVS Suzuki Motor Cycles, which was filed in different police stations and therefore, he was unable to attend the office, for, he was forced to surrender before the Judicial Magistrate, Kangayam, on 29.11.1996. On his surrender, he was also taken to police custody for interrogation for five days and in his confession, he had confessed the commission of offence jointly with Advocate Prakash and two other persons. But, I am not on the confession statements and the dismissal of his criminal case. But, the fact remains that, when the charge memo served upon the petitioner on 16.01.1997 under Rule 3(b) of TNPSS (D&A) Rules, 1955, the petitioner filed O.A.No.3661/1997 before the Tribunal and, in turn, the Tribunal, by order dated 20.05.1997, granted an order of interim stay and the same was also extended till 21.07.1997, and finally, the said case was also dismissed as withdrawn. Therefore, the petitioner cannot take the delay aspect in not completing the enquiry. Pursuant to the charge memo, which was served upon the petitioner on 16.01.1997, when he himself was responsible for obtaining the stay order against the proceedings of the departmental enquiry, he must be thankful for the delay and therefore, he cannot put the same against the respondents, for, the Enquiry Officer, immediately after the dismissal of the said O.A., resumed for conducting enquiry and completed the same on 20.03.2002. 7. In respect of allegations mentioned in the charge memo, the Enquiry Officer has given a categorical findings, holding that the charges levelled against the petitioner were proved. In that view of the matter, the said order of dismissal was also confirmed by the Appellate Authority. Therefore, the argument advanced by the learned https://hcservices.ecourts.gov.in/hcservices/ Senior counsel that the dismissal of the criminal cases have indicated the case of the petitioner that all the criminal cases were false case, hence, the department should not have initiated the disciplinary proceedings, does not find force, in view of the ratio laid down by the Apex Court in Secretary, Ministry of Home Affairs and Another v. Tahir Ali Khan Tyagi, JT 2002 (Suppl.1) SC 520, wherein it has been held that the disciplinary proceeding and criminal proceeding can run simultaneously and departmental proceeding can also be initiated even after acquittal in a criminal proceeding, particularly when the standard of proof in a criminal proceeding is completely different from the standard of proof that is required to prove the delinquency of a government servant in a departmental proceeding, the former being one of proof beyond reasonable doubt, whereas the latter being one of preponderance of probability. 8. Therefore, in view of the foregoing reasons and the ratio laid down by the Apex Court in Tahir Ali Khan Tyagi's case (cited supra), I do not find any merit in the writ petition and the same is dismissed accordingly. No Costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar rkm To 1. The Director General of Police, Kamarajar Salai, Mylapore, Chennai – 600 004. 2.The Deputy Inspector General of Police, Coimbatore Range, Coimbatore. 3.The Superintendent of Police, Erode District, Erode. 1 cc To Mr.I.C.Vasudevan, Advocate, SR.61324 Order in W.P.No.28741/2004 PKB(CO) RH (7.10.11) https://hcservices.ecourts.gov.in/hcservices/