IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.12.2009 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.325 of 2007 S.Albert Thangaraj ... Petitioner Versus 1.Superintendent of Police District Police Office Thoothukudi District. 2.Deputy Inspector General of Police Tirunelveli Range, Tirunelveli. 3.Inspector General of Police (Law & Order) South Zone, Madurai – 2. ... Respondents PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.3963 of 2001 from the file of Tamil Nadu Administrative Tribunal with a prayer to call for the records of the first respondent herein passed in his PR 39/99 dated 8.10.1999 removing the petitioner from service and consequential proceedings of the second respondent herein passed in his C.No.AP 7/C1/2000 dated 17.03.2000 and further consequential order of third respondent herein passed in his C. No.A1/1835/2000, 183/PR Review/2000 dated 29.05.2001 and quash the same with all consequential monetary and service benefits. For Petitioner : Mr.Ravi Shanmugam for M/s.Sudha Ravi Associates For Respondents : Mrs.C.K.Vishnupriya Additional Government Pleader O R D E R The Original application in O.A.No.3963 of 2001 before the Tamil Nadu Administrative Tribunal is the present writ petition. 2.Heard Mr.Ravi Shanmugam, learned counsel for the petitioner and Mrs.C.K.Vishnu Priya, learned Additional Government Pleader for the respondents. https://hcservices.ecourts.gov.in/hcservices/ 3.The petitioner was employed as a Grade – II Police Constable in Maniyachi Police Station, Thoothukudi District. The first respondent issued a charge memo dated 12.04.1999 under Rule 3 (b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, alleging the following charges. "CHARGE: i) Gross neglect of duty in having absented himself for beat duty on 7.12.98 at 18.30 hrs. when he was drafted for No.I night beat duty along with GRIPC. 1324 Iyyam Pillai on 7.12.98 at 18.00 hrs. ii) Highly reprehensible conduct in having abused one Inbaraj, S/O. Chelliah of Palayamkottai in an intoxicated mood in obscene language at Tirunelveli – Thoothukudi main road @ Moolikulam Mukku infront of a STD Booth and created nuisance to the public and obstruction to road traffic on 7.12.98 at 21.30 hrs. and thus involved in a criminal case in Palayamkottai PS. Cr.No. 1442/98, U/s. 4(1)(j) of TNP. Act. and 75 MCP Act. iii) Highly reprehensible conduct in having absented himself from 7.12.98 without obtaining any leave or permission from his superior officers." 4.According to the petitioner, the following are the facts that led to the issuance of the charge memo: The petitioner was issued with a passport by the Head Constable on 07.12.1998 at 06.00 p.m. for night beat duty at Chockanathapuram, Maniyachi Railway Station and Maniyachi Village along with Grade–I PC Mr.Iyyam Pillai. The petitioner reported about his sickness to Mr.Iyyam Pillai and told him that he wants to go to his house to bring torch light. It is also stated that he reported about his illness to the Head Constable Mr.Selvaraj, who issued the passport and he wanted to avail the leave. But the Head Constable told him to inform the Superior Officers if he wanted to take leave. However, the superior officers namely, the Inspector and the Sub- Inspector, were not present in the Police Station. Since he was not well, he went to a private dispensary at Palayamkottai. One Mr.Inbaraj unnecessarily picked up quarrel with the petitioner. The Inspector of Police Mr.Murugaswamy, belonging to Palayamkottai Police Station, instead of apprehending Mr.Inbaraj, registered a case against the petitioner in Crime No.1442/1998 under Section 4(1)(j) of the Tamil Nadu Prohibition Act read with Section 75 of Madras City Police Act for causing public nuisance. Only in these circumstances, he did not attend the night beat duty on 07.12.1998 and in view of his sickness, he did not attend duties and reported to duty only on 14.12.1998. https://hcservices.ecourts.gov.in/hcservices/ 5.An enquiry was conducted by the Deputy Superintendent of Police, Srivaikuntam. 6 witnesses were examined and 13 documents were marked as exhibits on the side of the department. As far as the first and third charge are concerned, admittedly, the petitioner did not attend the beat duty on 07.12.1998 and also remained absent up to 14.12.1998. The defence of the petitioner was that he reported about his sickness to both Mr.Iyyam Pillai and also the Head Constable Mr.Selvaraj. Both of them were examined in the enquiry. During the cross examination, both of them admitted that the petitioner informed about his illness. Mr.Selvaraj deposed that he could not grant him leave and that he should seek leave only from the superiors. It is also admitted that the superior officers viz., the Inspector and the Sub-Inspector of Police were not available in the police station. This piece of evidence in favour of defence was not considered by the enquiring authority while recording the finding of guilt. There is no discussion whatsoever by the enquiring authority regarding this piece of evidence. Though the above version of the prosecution witnesses was produced in the report of the enquiry officer, while narrating the facts, the same was not considered while rendering findings. However, the mere illness would not be a ground for the petitioner to absent himself from duty from 07.12.1998 to 13.12.1998 and to report for duty only on 14.12.1998. The above fact that the petitioner intimated about his illness would certainly be a mitigating factor while considering the imposition of punishment. This relevant piece of evidence is a factor that has to be taken note of while moulding the relief. 6.As far as the second charge is concerned, there are two witnesses examined in the enquiry namely, the Inspector Mr.Murugaswamy of Palayamkottai Police Station and the doctor. The doctor spoke about the drunkenness of the petitioner. The evidence of doctor reveals that there was liquor smell from the petitioner and however, he was not under the influence of liquor. The doctor also deposed that the petitioner refused to provide blood and urine for medical examination. But the doctor, during the cross examination stated that the smell of alcohol might be present if tonic with alcohol is consumed in larger quantity. It is the case of the petitioner that due to pain, he took larger quantity of medicines and he cross examined the doctor to substantiate his plea as to consumption of medicines. Further, the evidence of the Inspector as narrated by the enquiry officer is as follows: "...... He noticed PC 1671 was talking to one Inbaraj that he is a police and that he cannot wag his tail with him challenging him and also abused in vile language causing annoyance to the public and hindrance to the traffic....." 7.In the above evidence, the Inspector deposed that the petitioner was only talking to Mr.Inbaraj. Though the Inspector said https://hcservices.ecourts.gov.in/hcservices/ that he abused in vile language, the vile language that was used by the petitioner was not stated. In the absence of giving the actual words used by the petitioner, it could not be presumed that it was an abusive language. In this context, the following passage in the decision of this Court in K.M.RAMASAMY VS. ASSISTANT COMMISSIONER OF LABOUR (CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT), COIMBATORE reported in 1991 (II) LLN 965 squarely applies to the facts of this case. "3.Learned counsel for the petitioner submits that the impugned order is silent with regard to the alleged abusive words used by the petitioner and that no opportunity was given to the petitioner to explain and that the impugned order is, therefore, against the principles of natural justice, arbitrary and it is illegal. Learned Government Advocate, appearing for the respondent is unable to point out the actual words alleged to have been used by the petitioner in the course of the proceedings. Under such circumstances, the impugned order is quashed as it is against the principles of natural justice........" Further, the only objectionable language quoted by the Inspector is "ehd; nghyP!; vd;fpl;l thyhl;lhnj" and that is translated by the enquiry officer as he could not wag his tail as he is a police. This could not be termed as an abusive language. More importantly, Mr.Inbaraj was not examined in the enquiry and not even statement, if any, recorded from Mr.Inbaraj was produced in the enquiry. It is also admitted that the criminal prosecution was dropped. Hence, the finding of guilt regarding charge No.2 is perverse as there exists no legal evidence to support the finding. 8.I have come to the conclusion that the charge No.2 was not established. Then the charge Nos.1 and 3 relate to absence for a very small period. Hence, I am of the considered view that the extreme penalty of removal cannot be sustained. 9.Taking into account all these factors namely, (1) the petitioner reported sick to Mr.Iyyam Pillai and to the Head Constable Mr.Selvaraj (2) the superior officers were not present on 07.12.1998 to seek leave and (3) non-examination of Mr.Inbaraj in the enquiry and (4) dropping of the criminal prosecution, the extreme penalty of removal is set aside. 10.In these circumstances, the impugned order imposing the punishment of removal is set aside. However, the petitioner is not entitled to wages for the period of non-employment. For the delinquency committed by the petitioner, the respondents are directed to impose any other punishment and the period of non-employment will be treated for all other purpose except payment of wages. The https://hcservices.ecourts.gov.in/hcservices/ respondents are directed to comply with the directions within a period of four months from the date of receipt of a copy of this order. 11.The writ petition is allowed on the above terms. No costs. To 1.Superintendent of Police District Police Office Thoothukudi District. 2.Deputy Inspector General of Police Tirunelveli Range, Tirunelveli. 3.Inspector General of Police (Law & Order) South Zone, Madurai – 2. 1 cc To M/s.Sudha Ravi Associates, Advocate, SR.69599 1 cc To The Government Pleader, SR.69968 W.P.No.325 of 2007 RL (CO) SS (11.01.2010) https://hcservices.ecourts.gov.in/hcservices/