IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.2.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.Nos.21327 and 21328 of 2009 G.Thangiah .. Petitioner in WP:21327/2009 N.Petchimuthu .. Petitioner in WP:21328/2009 Vs. 1. The State of Tamil Nadu rep. by its Principal Secretary (Home) (Pol.IV) Department Fort St.George, Chennai – 9. 2. The Director General of Police Mylapore, Chennai – 4. .. Respondents PRAYER: Petitions under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus to call for the records pertaining to P.R.Nos.30 and 35 of 1997 respectively from the second respondent and quash the orders dated 26.6.2009 bearing G.O.(2D) 262 and G.O.(2D) No.263 passed by the first respondent and direct the respondents to pay all the terminal/retirement benefits of the petitioners and to redraw the pension according to norms prescribed. For Petitioners : Mr.Y.N.Venkatraj For Respondents : Mr.N.Senthilkumar Additional Government Pleader ORDER These writ petitions are directed against the orders of the second respondent in P.R.Nos.30 and 35 of 1997 respectively, dated 26.6.2009, and also the orders of the first respondent/Government in G.O.(2D) No.262 and G.O.(2D) No.263 respectively, dated 26.6.2009 and also for a direction against the respondents to pay the terminal and retirement benefits due to the petitioners and to redraw the pension. 2.1. While the petitioner in W.P.No.21327 of 2009 has joined in the police department on 2.2.1963 and retired on 31.1.1998 as Head Constable, the petitioner in W.P.No.21328 of 2009 has joined the https://hcservices.ecourts.gov.in/hcservices/ police department on 1.1.1963 and retired on 31.5.1996 as Grade I Police Constable. 2.2. One Durairaj was brought by the public to the Tirunelveli Town Police Station on 14.10.1984 with abrasions all over his body and it was informed by the public who have brought him to the station that he has stolen a bicycle of one Venkatraman and the members of the public chased him and attacked him causing physical injuries. A criminal case in Crime No.1107 of 1984 was registered against the said Durairaj under Section 379 of the Indian Penal Code and the Inspector of Police, Palaniappan, handed over the investigation to Sub Inspector of Police, Murugan, to be assisted by Constables – Thangiah (petitioner in W.P.No.21327 of 2009), Ganeshan, Chidambara Natarajan. 2.3. It is stated that the team has investigated and the bicycle was identified by the accused and seized from a person who purchased from the accused in Reddiarpatti. Thereafter, the said accused was handed over to Sudamani, Para Police Constable and the investigation team left the station and the said Sudamani has informed that on 15.10.1984, at 7 A.M., the said accused has hanged himself in the station and was pronounced dead. 2.4. It is stated that the petitioner in W.P.No.21328 of 2009, who was a Police Constable, was entrusted the job of issuing summons in respect of another accused at Rajapalayam and therefore, he was away and returned on the early morning of 15.10.1984 at 3 A.M., and he was asked by the Sub Inspector of Police, Murugan, to assist Sudamani, the Para Police Constable. 2.5. The death of the said Durairaj was registered as Crime No.1270 of 1984 under Section 174 of the Code of Criminal Procedure and an enquiry by Revenue Divisional Officer was conducted, who examined various witnesses including the petitioners. The Revenue Divisional Officer submitted a report on 23.10.1984 indicting the entire investigation team, including the petitioners. The report of the Revenue Divisional Officer is alleged to be improper on the grounds that his report is dated 23.10.1984, while he has examined witnesses afterwards on 29.10.1984; that the accused was beaten severely by the public before handing him over to the police station and that factum has been cogently stated by all the witnesses/members of the public; and that the vital evidence of the Sentry (Sudhakar) and Head Constable on duty at the said station have not been received and so on. 2.6. Thereafter, the Government has ordered a CB-CID enquiry based on the findings of the Revenue Divisional Officer and the petitioners were placed under suspension from 30.4.1985. The respondents initiated departmental action against the petitioners on 29.10.1990 and directed the CB-CID to initiate thorough enquiry. The https://hcservices.ecourts.gov.in/hcservices/ Inspector of Police, Palaniappan, has moved this Court against such direction to conduct enquiry and obtained stay of the order of the Government. 2.7. The petitioners along with others have moved the Tamil Nadu Administrative Tribunal by filing O.A.No.2790 of 1991 and the Tribunal has directed departmental enquiry to continue. However, the Tribunal passed final order on 13.12.1991 observing that since the writ petition filed by the Inspector of Police, Palaniappan, is pending before the High Court, it is appropriate to get orders from the High Court and that the State Government should review whether the report of the Revenue Divisional Officer provided an adequate basis for further investigation by CB-CID. 2.8. It is stated that during 1988-1989 the suspension orders were revoked. The petitioner in W.P.No.21327 of 2009 attained age of superannuation on 31.1.1998 and the petitioner in W.P.No.21328 of 2009 retired on 31.5.1996 and they were allowed to retire pending the final outcome of departmental proceedings. It is stated that subsequently departmental proceedings were initiated in P.R.No.304 of 1991 in respect of both the writ petitioners, which were renumbered as P.R.No.30 of 1997 and P.R.No.35 1997 respectively. 2.9. The Assistant Commissioner of Police, Tirunelveli was appointed as Enquiry officer. However, the oral enquiry commenced only on 29.6.2002, after a delay of 18 years. Even though the Revenue Divisional Officer and CB-CID have indicted 8 persons, the departmental proceedings were commenced only against the petitioners and the other officers have either died in the meantime or managed to obtain pardon from seniors and have since retired with all accrued benefits. 2.10. It is stated that out of the other officers who have been indicted, Palaniappan, Station Inspector was awarded a punishment of increment cut for two years, which was challenged by him and in the meantime, he died; Murugan, Sub Inspector of Police, was exonerated and charges were dropped on 25.9.2003 and the period of suspension undergone by him between 7.5.1985 to 13.12.1988 was treated as duty; Chidamabara Natarajan, Constable, was exonerated and charges against him were dropped on 25.9.2003 and the period of suspension undergone by him between 7.5.1985 to 13.12.1988 was treated as duty; Ganesan, another Constable, was exonerated and charge against was dropped on 25.9.2003 and the period of suspension undergone by him between 7.5.1985 to 13.12.1988 was treated as duty. 2.11. It is stated that the Enquiry Officer has completed the enquiry and submitted his report on 29.6.2003, which was communicated to the petitioners on 19.10.2004. By communication dated 5.12.2007, the Government having arrived at a provisional conclusion to impose the punishment of cut of pension of ` 150/- per month for a period of https://hcservices.ecourts.gov.in/hcservices/ one year, directed the petitioners to reply to the proposed punishment within 15 days, for which the petitioners have given their reply on 6.2.2008. 2.12. Since no orders were passed thereafter, the petitioners moved this Court by filing W.P.Nos.845 of 2009 and 30837 of 2008 respectively to quash the enquiry proceedings and by orders dated 21.1.2009 and 5.1.2009 respectively, this Court directed the respondents to consider the reply of the petitioners dated 6.2.2008 and pass appropriate orders. 2.13. Thereafter, under the impugned orders dated 26.6.2009, the said order of punishment came to be passed, which is challenged by the petitioners on various grounds, including: (i) that the same is arbitrary and illegal, especially when the similarly situated persons have been exonerated; (ii) that the action against the petitioners is vindictive; (iii) that by arbitrarily cutting the pension of the petitioners, their right to life has been affected; (iv) that for the services rendered for 35 years and 33 years respectively, after retirement their pension has been cut arbitrarily, which is untenable. 3.1. In the counter affidavit filed by the respondents, while the facts are not in dispute, it is stated that the delay in departmental proceedings was due to the stay granted by this Court. 3.2. It is stated that depending upon the seriousness of the individual conduct, it is open to the Government to proceed against the individual police officers and that all eight police personnel, including the petitioners, have been dealt with under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955 in PR.Nos.302/91, 29/97, 30/97, 305/97, 32/97, 33/97, 34/97 and 35/97. 3.3. It is stated that in cases where PRs were not proved, as per the minutes, the further proceedings were dropped and in the case of the petitioners, the impugned orders of punishment came to be passed, since there has been sufficient evidence regarding their involvement. 3.4. It is stated that mere pardoning of the co-delinquents does not mean that the petitioners should be given the same treatment and one of the co-delinquent, Palaniappan, Inspector of Police was imposed with punishment of reduction of pay and in respect of others, further action was dropped since as per the minutes it was not proved. It is also stated that the views of the Tamil Nadu Public Service Commission were also obtained before passing the impugned https://hcservices.ecourts.gov.in/hcservices/ orders. 4. The fact that in respect of the said incident of committing of suicide by an accused in the police station all the officers attached to the police station were suspended and action was taken against them is not in dispute. The charge framed against the petitioners is that they have tortured the said Durairaj in police custody. The allegation made by the petitioners is that while the remaining six officers, viz., Palaniappan (Inspector of Police), Murugan (Sub-Inspector of Police), Murugiah (Grade I Constable), Ganesan (Constable), Chidambara Natarajan (Constable) and Sudamani (Para Constable) were all pardoned and they were all settled with the pensionary benefits and no punishment has been imposed on them and suspension was revoked, admittedly, only in respect of the petitioners, disciplinary proceedings is continued resulting in the above punishment of recovery of ` 150/- from pension for a period of one year. 5. Indisputably, in respect of all the eight persons the charge was similar. But the stand taken by the respondents in the counter affidavit is that depending upon the nature of the minutes some of the officers were pardoned and some were imposed with certain punishment. As far as the petitioners are concerned, they were Constables. In respect of the petitioner in W.P.No.21328 of 2009, it has been his specific stand that he was away in Rajapalayam in respect of issuing summons and he came to the station only during the early hours of 15.10.1984 and he was asked to help Sudamani, who is Para Constable, and he had nothing to do with the charge. 6. The report of the Enquiry Officer shows that it predominantly depends on the report of the Revenue Divisional Officer, whose version has been elicited in the report of the Enquiry Officer as follows: "As per the presumption of the R.D.O. Tirunelveli there is a possibility of torture by the Sub Inspector, the delinquent and other Police personnel under the pretext of interrogation and investigation from the time since Durairaj has been handed over to S.I. Tr.Murugan by the Inspector for interrogation till 0315 hours." While the report of the Enquiry Officer makes indictment of the Palaniappan (Inspector of Police), Murugan (Sub Inspector of Police), Murugiah (Grade I Constable), Ganesan (Constable), Chidambara Natarajan (Constable), nowhere the name of the petitioner in W.P.No.21327 of 2009 finds place. Even in respect of the petitioner in W.P.No.21328 of 2009, it is stated that the accused was kept in the custody of Sudamani (Para Constable) and Petchimuthu (the petitioner in W.P.No.21328 of 2009) at 0315 Hours on 15.10.1984. In respect of the petitioner in W.P.No.21328 of 2009, there is nothing https://hcservices.ecourts.gov.in/hcservices/ about his involvement. 7. While the entire presumption is based on the report of the Revenue Divisional Officer which states that the cause of the death should have been the cruel treatment by the police in the station and not by hanging himself, it is not in dispute that one another person Sudamani (Para Constable), who was guarding the accused along with the petitioner in W.P.No.21328 of 2009, has been exonerated. The stand taken by the respondents in the counter affidavit as if based on the report of the Enquiry Officer and gravity of the situation those police officers were left out has no basis. 8. A reading of the report of the Enquiry Officer shows that there was no specific allegation against any of the officers and when six of the eight officers have been exonerated, it is not known as to how the petitioners have been indicted, when there is no specific overt act attributed against them. In such circumstances, the contention of the learned counsel for the petitioners that there has been discrimination can be said to be well founded. 9. A Division Bench of this Court in M.Rajamanickam v. The Executive Director, Bharat Heavy Electricals Limited, Tiruchirappalli and others, 1997 WLR 536, has held held that if two delinquents have played same role and if the management has accepted apology from one person and reinstated him, the other person can claim equal privilege of tendering apology, as otherwise it will amount to discrimination. It is relevant to extract paragraph [26] of the judgment, which is as follows: "26. We are of the view that there is no iota of evidence which would differentiate the case of the present appellant from that of the other employee Meenakshisundaram. This discrimination writ large on the record and the court cannot overlook the same. Therefore, we see no justification in treating the appellant differently without pointing out how he was guilty of more serious misconduct or the degree of indiscipline in this case was higher than compared to that of Meenakshisundaram. Learned Counsel for the management failed to explain to us the distinguishing features and therefore, we are satisfied in putting both of them in the same bracket. Therefore, we have no hesitation to come to the conclusion that the treatment meted to the present appellant suffers from the vice of arbitrariness and Article 14 forbids any arbitrary action which would tantamount to denial of equality as guaranteed by Article 14 of the Constitution of India. The court must accordingly interpose and quash the discriminatory action." https://hcservices.ecourts.gov.in/hcservices/ 10. That was also the view of P.Sathasivam,J., as His Lordship then was, in T.R.Venkatachary v. The Special Officer, Corporation of Madurai, Madurai and another, 2002 WLR 449. Quoting paragraph [26] of the Division Bench judgment in M.Rajamanickam case, supra, and relying upon the earlier judgments of the Supreme Court in Sengara Singh v. State of Punjab, [1983] 4 SCC 225, it was observed as follows: "In the light of the similar factual position, I am of the view that the principle laid down in the above Division Bench judgment is squarely applicable to the facts of the present case. In this case, I have referred to the nature of charges levelled against all the 3 persons as seen from the proceedings of the Commissioner of the Corporation dated 14.11.1986. In the absence of any explanation before me as to how the petitioner was guilty of more serious misconduct or the degree of dereliction of duty in this case was higher than compared to that of the other two persons, as observed by the Division Bench, I am of the opinion that the present action against the petitioner is undoubtedly hit by Article 14 of the Constitution of India." 11. Law is well settled that in cases where the employees are involved in the same incident, all of them should be treated equally. If the department wants to proceed, it has to proceed against all or else it should drop the proceedings against all and it cannot pick and choose persons for the purpose of victimization. 12. On the facts of the present case, I have no hesitation to hold that by showing leniency in favour of other six officials, while distinguishing that in respect of the petitioners, the onerous duty on the part of the respondents that for treating the petitioners differently there are adequate records available based on the report of the Enquiry Officer has not been discharged. As I have stated earlier, on a cursory reading of the report of the Enquiry Officer, it is clear that there is no specific overt act attributed against any of the police officials and while so, when all others were exonerated, it is not known under what circumstances the petitioners have been targeted. 13. Yet another aspect to be considered is the delay. The occurrence is stated to have taken place on 15.10.1984, while the ultimate punishment came to be passed in the year 2009. It is true that pending disciplinary proceedings there have been certain proceedings initiated before the Tribunal and this Court and there has been an order of stay and so on. But, there is no acceptable explanation for such a long delay and certainly after nearly 25 years of the incident if such a punishment is imposed, especially after the petitioners were allowed to retire, prejudice caused to them would be https://hcservices.ecourts.gov.in/hcservices/ enormous. 14. In the absence of any acceptable explanation for the unexplained delay, I am of the considered view that the impugned orders passed by the respondents are shocking to the conscience of the Court, if not on the quantum of punishment, but on the punishment itself on the grounds of discrimination, inordinate delay and non application of mind. Ultimately, it appears that the impugned orders are passed only for the purpose of satisfying the successful closing of the file, for which at least a few have to be targeted, and the petitioners have been unlawfully chosen in a most arbitrary manner, which cannot be approved by any court of law. For the foregoing reasons, the writ petitions stand allowed and the impugned orders are set aside with a direction to the respondents to pay all consequential retirement benefits and to re-fix the pension of the petitioners. Such exercise shall be done by the respondents within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, M.P.No.1 of 2009 in W.P.No.21327 of 2009 and M.P.No.1 of 2009 in W.P.No.21328 of 2009 are closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar sasi To: 1. The Principal Secretary (Home) (Pol.IV) Department State of Tamil Nadu Fort St.George, Chennai – 9. 2. The Director General of Police Mylapore, Chennai – 4. 4 cc to Mr.Y.N.Venkatraj, Advocate, Sr.No.11095 1 cc to Government Pleader, Sr.No.11309 W.P.Nos.21327 and 21328 of 2009 GV {CO} TP/23.2.2011. https://hcservices.ecourts.gov.in/hcservices/