IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 11.2.2010 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR Writ Petition No.38183 of 2006 A.Arjunan. ... Applicant -Vs.- 1.The Director General of Police, Chennai-600 004. 2.The Inspector General of Police, (Law and Order), Chennai-4. 3.Deputy Inspector General of Police, Vellore Range, Vellore. 4.Superintendent of Police, District Police Office, Salem. ... Respondents Original Application No.5295 of 1999 was filed before the Tamil Nadu Administrative Tribunal, Madras Bench praying to quash the punishment of reduction in the time scale of pay by one stage for two years without cumulative effect passed by the third respondent in his C.No.B3/12937/96 dated 24.12.96 and the consequential modified punishment of reduction in the time scale of pay by one stage for 6 months without cumulative effect passed by the second respondent in his C.No.58631/AP.2(2)/97 dated 10.10.97 and the consequential order of the first respondent in his RC No.53988/AP.2(2)/98 dated 15.7.98 with all consequential monetary and service benefits. Since the Tamil Nadu Administrative Tribunal was abolished, the O.A. was received by transfer and numbered as Writ Petition. For petitioner : Mr.S.Ravi For respondent : Mr.S.Sivashanmugam Government Advocate. O R D E R Original Application No.5295 of 1999 was filed before the Tamil Nadu Administrative Tribunal, Madras Bench praying to quash the https://hcservices.ecourts.gov.in/hcservices/ punishment of reduction in the time scale of pay by one stage for two years without cumulative effect passed by the third respondent in his C.No.B3/12937/96 dated 24.12.96 and the consequential modified punishment of reduction in the time scale of pay by one stage for 6 months without cumulative effect passed by the second respondent in his C.No.58631/AP.2(2)/97 dated 10.10.97 and the consequential order of the first respondent in his RC No.53988/AP.2(2)/98 dated 15.7.98 with all consequential monetary and service benefits. Since the Tamil Nadu Administrative Tribunal was abolished, the O.A. was received by transfer and numbered as Writ Petition. 2. The petitioner, Grade-I Constable was issued with a charge memo under Rule 3 (b) of the Tamil Nadu Police Subordinate Service (Disciplinary and Appeal) Rules, 1955 which reads as follows:- "Gross misconduct in having abused in filthy language and assaulted Thiru Ramasamy Naidu (75), s/o Veerasamy Naidu, Kattukottai with a bamboo stick (sattai) on 4.6.94 at about 8.50 p.m. at Thalaivasal P.S. with ulterior motive." 3. The Assistant Superintendent of Police, Salem, was appointed as an enquiry officer, who conducted the oral enquiry. 6 witnesses were examined, 8 exhibits were marked on behalf of the Department. The delinquent was examined as a witness and five documents were marked on behalf of the defence. The enquiry officer came to conclusion that the charge was not proved based on oral and documentary evidence and in particular, the evidence of P.W.1, the person who said to have been assaulted by the delinquent, who stated that he was not beaten by anybody much less by the petitioner. The Disciplinary Authority, the Superintendent of Police concurred with the finding of the enquiry officer and dropped further action. 4. The Deputy Inspector General of Police issued a show cause notice on 26.10.1996 calling upon the petitioner to state as to why punishment should not be imposed differing with the view of the Disciplinary Authority. A reply was submitted by the applicant, the delinquent officer and in that proceedings, the Deputy Inspector General of Police held as follows:- "3. On suo-mottu review invoking rule 15 (A) of TNPSS (D&A) Rules, 1955 and dis-agreeing with the orders passed by the Superintendent of Police, Salem on the ground that P.W.1 has clearly stated during preliminary enquiry before the Dy.Supdt. of Police, DCRB, Salem on 26.9.94 that the delinquent police constable had abused and assaulted PW.1 on 4.6.94 at about 8.50 p.m. with ulterior motive. A Show Cause Notice proposing to inflict the punishment of "Reduction https://hcservices.ecourts.gov.in/hcservices/ in the time scale of pay by one stage for two years without cumulative effect" commensurate to the delinquency proved was issued in the reference third cited. The delinquent police constable acknowledged the Show Cause Notice on 14.11.96 and a copy of Minute on 11.12.96. He has furnished his explanation to Show Cause Notice, dated 10.12.96. 4. I have gone through the Minute file and explanation of the delinquent P.C. His explanation is not convincing and does not merit consideration for dropping further action on the Show Cause Notice issued against him. The statement given before the preliminary enquiry officer, Dy. Supdt. of Police, D.C.R.B., by P.W.1 is filed as a Prosecution Exhibit in the Oral Enquiry. This has tremendous evidentiary value since this statement was made to a senior police officer at the earliest point of time about the injustice rendered to him. P.W.1 was obviously gained over by the delinquent and made to depose in his favour during the Oral enquiry. The delinquent has not established his innocence by clinching evidence Therefore, there are no grounds to exonerate the delinquent. His explanation is not accepted and the penalty proposed is just and necessary to deter the delinquent from indulging in unwarranted and barbaric conduct like beating a seventy year old man with bamboo stick till he passes stool in his dhoti." 5. The Deputy Inspector General of Police, the Reviewing Authority has gone into the statement of P.W.1 given before the preliminary enquiry officer, the Deputy/Assistant Superintendent of Police and has come to the conclusion that the statement made by P.W.1 at the earliest point of time should be relied upon even though P.W.1 has subsequently stated otherwise in the oral enquiry in the course of Departmental Proceedings. According to the Reviewing Authority, P.W.1 was gained over by the delinquent. The delinquent has not established his innocence by clinching evidence. Hence, the Reviewing Authority rejected the finding of the enquiry officer exonerating the delinquent of the charges and also reversing the finding of the Disciplinary Authority, who dropped the proceedings. This finding of the Reviewing Authority goes contra to the Disciplinary Authority as referred to above. The Disciplinary Authority has referred to the report of the preliminary enquiry, the Deputy/Assistant Superintendent of Police, which has been filed as a prosecution exhibit in the oral enquiry. The finding of guilt by the https://hcservices.ecourts.gov.in/hcservices/ Reviewing Authority is purely on the basis of the preliminary enquiry report. The oral and documentary evidence let in does not prove the guilt of delinquent officer and the only material relied upon by the Reviewing Authority is the preliminary enquiry report. The charge cannot be proved purely on the basis of the preliminary enquiry report. Further, P.W.1 has, in his cross examination, clearly stated that the delinquent had not assaulted him. 6. In the facts of this case, the finding of guilt by the Reviewing Authority cannot be sustained as it is based on misconception of the evidence on record. A similar view is taken by my Brother Justice N.PAUL VASANTHAKUMAR, in K.Palani – vs. - State of Tamil Nadu & 3 others reported in 2007 Writ Law Reporter 655. In paragraphs 8 and 30, it has been held as follows:- 8. Whether the statements made during the preliminary enquiry not corroborated by cross examination can be validly relied on by the Disciplinary authority was considered by the Supreme Court in the decision reported in (2004) 10 SCC 87 (Union of India v. Mohammed Ibrahim). The Honourable Supreme Court held that the order of dismissal was vitiated as the findings have been based on consideration of statement of the persons examined during the preliminary enquiry and for the said fact the Tribunal set aside the order of dismissal, which was upheld by the High Court and there is no error in the order setting aside the dismissal order." "13. In view of the above cited settled position of law on this aspect and having regard to the fact that there is no controversy about the enquiry officer's finding of guilt of the petitioner solely relying upon the statement given before the Revenue Divisional Officer during the preliminary enquiry and there was no occasion to cross examine the said witness during the preliminary enquiry, I am of the view that the charges framed against the petitioner cannot be said to be validly proved. Hence the petitioner is bound to succeed in this writ petition challenging the order of dismissal passed based on the erroneous findings given by the Enquiry Officer in his report. The consequential orders passed by the appellate authority, revisional authority and the government in the mercy petition are also set aside." https://hcservices.ecourts.gov.in/hcservices/ 7. In view of the above stated legal position, the impugned order, based on preliminary enquiry report, is not sustainable and is set aside. The Writ Petition is allowed. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar ts To 1.The Director General of Police, Chennai-600 004. 2.The Inspector General of Police, (Law and Order), Chennai-4. 3.Deputy Inspector General of Police, Vellore Range, Vellore. 4.Superintendent of Police, District Police Office, Salem. 1 cc to Government Pleader, Sr.No.9435 1 cc to Mr.S.Ravi, Advocate, Sr.No.9281 Order in W.P.No.38183 of 2006 SR {CO} TP/23.2.2010. https://hcservices.ecourts.gov.in/hcservices/