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2008 DIGILAW 3166 (MAD)

K. Kettimuthusamy v. The Director General of Police & Others

2008-08-29

R.BANUMATHI

body2008
Judgment :- Petitioner seeks Writ of Certiorarified Mandamus to quash the order of the 2nd Respondent in Rc.No.242575/AP I (1)/2003 dated 12. 2003 thereby imposing punishment of reduction in the time scale of pay by one stage for one year without cumulative effect. 2. Factual background in nutshell are as follows:- (i) Petitioner joined in the Police Force as Gr.II PC in Armed Reserve on 13. 1976 and promoted as Gr.I PC (Naik) in the year 1983 and subsequently promoted as Head Constable on 11. 1984. Charge Memo was framed against the Petitioner in PR 105/97 u/r 3(b) of TNPSS (D&A) Rules 1955 on 010. 1997 for four counts. (ii) Petitioner has filed O.A.No.6220/1998 before Tamilnadu Administrative Tribunal (TAT), Chennai against the Charge Memo. By the order dated 110. 2001, TAT has quashed Charge No.2 in view of acquittal of the criminal case in Malayampalayam PS Cr.No.274/97 u/s.279, 337 IPC. (iii) Deputy Superintendent of Police (DSP), Gobi was appointed as Enquiry Officer to conduct oral enquiry in the departmental proceedings initiated against the Petitioner. The Enquiry Officer had drawn proved Minute on 12. 2003. By the order dated 15. 2003, the competent authority i.e. Superintendent of Police, Erode District awarded punishment of "Reduction in the time scale of pay by two stages for two years and the period of reduction shall not operate to postpone his future increments". Petitioner acknowledged the order on 15. 2003. Petitioner preferred appeal against the above punishment to the DIG, Coimbatore Range on 16. 2003 and the same was rejected by the DIG, Coimbatore Range vide Proceedings dated 9. 2003. (iv) Petitioner preferred Review Petition against the punishment imposed on him in PR 105/97 u/r 3(b) to Addl. DIG (L & O), Chennai. In his order dated 012. 2003, Addl. DIG (L & O), Chennai has modified the punishment of reduction in the time scale of pay by two stages for two years without cumulative effect awarded to the Petitioner into reduction in time scale of pay by one stage for one year without cumulative effect. (v) Petitioner preferred mercy Petition to the DGP, Chennai on 3. 2004. DGP, Chennai after going through the Petition and connected records, rejected the mercy petition in his Proceedings dated 6. 2004. Challenging the award of the punishment by the impugned proceedings, Petitioner has filed the Writ Petition. 3. Denying the averments in the Petition, Respondents have filed counter-affidavit. (v) Petitioner preferred mercy Petition to the DGP, Chennai on 3. 2004. DGP, Chennai after going through the Petition and connected records, rejected the mercy petition in his Proceedings dated 6. 2004. Challenging the award of the punishment by the impugned proceedings, Petitioner has filed the Writ Petition. 3. Denying the averments in the Petition, Respondents have filed counter-affidavit. According to the Respondents, Armed Forces are expected to maintain strict discipline in Chennimalai Repeater Guard and sufficient opportunity was afforded to the Petitioner during departmental proceedings. 4. Ms. Sudha Ravi, learned counsel for the Petitioner contended that there was no evidence to show that Petitioner entered into compromise with the complainant and when criminal case ended in acquittal, Enquiry Officer was not right in finding the Petitioner guilty of 1st Charge. In so far as, 3rd and 4th Charges are concerned, learned counsel for the Petitioner has further submitted that there was non-application of mind in consideration of evidence adduced by the Petitioner to show that he was all along present on duty. 5. Mr. N. Senthilkumar, learned Addl. Government Pleader (Writs) has submitted that Enquiry Officer and disciplinary authority have recorded finding of fact and the same cannot be interfered with. Learned Addl. Government Pleader further submitted that Armed Forces are expected to maintain strict discipline and the punishment awarded to the Petitioner into reduction in time scale of pay by one stage for one year without cumulative effect is proportionately less and the same cannot be interfered with. 6. In so far as 1st Charge, Petitioner was charged in indulging compromise of cognizable offence of motor accident case on 19. 1997 at 3.30 P.M. at Padipparai, Thottipalayam in favour of his brother-in-law Thangavel who was the accused in Malayampalayam PS Cr.No.274/1997 u/s.279, 337 IPC. P.W.1 Sakthivel had deposed that Thangavel – brother-in-law of the Petitioner hit Arul Priya – daughter of P.W.1s elder brother and caused head injury to her. Petitioner is said to have told P.W.1 that he would meet out the medical expenses and Petitioner allegedly requested P.W.1 not to prefer any complaint. P.Ws.2 to 6 who were examined on the side of the department also stated that Petitioner told P.W.1 that he would bear the medical expenses. Based on that evidence, 1st count of Charge was held to be proved. 7. P.Ws.2 to 6 who were examined on the side of the department also stated that Petitioner told P.W.1 that he would bear the medical expenses. Based on that evidence, 1st count of Charge was held to be proved. 7. Learned counsel for the Petitioner has submitted that in the criminal case in C.C.No.74/1998, Court has disbelieved the version of P.W.1 and had acquitted Thangavel and while so, the evidence of P.W.1 ought not to have been relied upon for proving the 1st Charge. Of course in the criminal case, Thangavel was acquitted. But he was acquitted giving him benefit of doubt. Acquittal judgment in C.C.No.74/1998 would not in any way weaken the evidence adduced by the department to prove the 1st Charge that Petitioner attempted for compromise with P.W.1 so as to not to prefer complaint against his brother-in-law Thangavel. In fact taking into account the acquittal, already TAT has quashed Charge No.2. 8. 3rd Charge levelled against the Petitioner is dereliction of duty in absenting himself without leave or permission from his superior officers from 19. 1997 to 19. 1997 except half an hour every day between 10.00 A.M. and 10.30 A.M. Regarding 3rd count of Charge, P.Ws.9 and 10 were examined who have deposed about the absence of the Petitioner from 19. 1997 to 19. 1997. Petitioner has examined D.W.2 Madhappan, Gr.I PC 296 who has deposed that Petitioner was available all the days. Petitioner has also examined D.W.3 Thulasimani, Inspector of Police who has stated that Petitioner has not availed leave or absented himself during duty hours. D.W.4 Subramaniam, Gr-I PC 1545 also said to have stated that he relieved the Petitioner from Chennimalai Repeater Guard on 19. 1997. 9. Drawing attention of Court to the evidence of D.Ws.2 to 4, learned counsel for the Petitioner has submitted that the evidence of defence witnesses would show that Petitioner had not absented from duty without leave or permission from his superior and that Enquiry Officer has not properly analysed the evidence of D.Ws.2 to 4. 10. Apart from oral evidence, department has also produced the documentary evidence. Enquiry Officer noticed that Sentry Book (Ex.P14 – Pages 17 and 32) were found missing from the book which are relating to the entries from 19. 1997 to 19. 1997, the disputed and absented dates of delinquent. 10. Apart from oral evidence, department has also produced the documentary evidence. Enquiry Officer noticed that Sentry Book (Ex.P14 – Pages 17 and 32) were found missing from the book which are relating to the entries from 19. 1997 to 19. 1997, the disputed and absented dates of delinquent. Having regard to the oral evidence, Enquiry Officer observed " recorded evidence of P.Ws.9 and 10 and Ex.P14 cannot easily be brushed aside". 11. In so far as Charge No.4, Petitioner is alleged to have left the duty spot Repeater Guard on 19. 1997 without leave or permission and visited his father-in-laws place at Padiparai. 4th Charge is interconnected with 3rd Charge. Upon appreciation of evidence, rejecting explanation of delinquent, Enquiry Officer held that there is no evidence to show that delinquent was present at Chennimalai Repeater Guard on 19. 1997 and that the evidence of P.Ws.9 and 10 and Ex.P14 would prove the absence of delinquent from Chennimalai Repeater Guard on 19. 1997. 12. Once the Enquiry Officer and Disciplinary Authority find that Charges are proved, High Court cannot re-appreciate the evidence. Exercising jurisdiction under Article 226 of Constitution of India, Court does not exercise appellate jurisdiction to re-appreciate the evidence. Unless the orders suffer from any perversity, High Court will not interfere with the finding in the disciplinary proceedings. Police personnel working in the Armed Forces are expected to discharge their duties with devotion and diligence. In (1992) 4 SCC 54 (State of Punjab and others v. Ram Singh Ex-Constable), Supreme Court has held that strict standards of discipline is required in the Police Force. 13. For the proved charges, 4th Respondent has awarded punishment of reduction in the time scale of pay by two stages for two years and the period of reduction shall not operate to postpone his future increments. On the Review Petition filed before Addl. DIG, (L & O), Chennai, 2nd Respondent has modified the punishment and awarded reduction in time scale of pay by one stage for one year without cumulative effect by the impugned order. Having regard to the gravity of charges, this court is of the view that the punishment imposed is proportionately less. 14. On the Review Petition filed before Addl. DIG, (L & O), Chennai, 2nd Respondent has modified the punishment and awarded reduction in time scale of pay by one stage for one year without cumulative effect by the impugned order. Having regard to the gravity of charges, this court is of the view that the punishment imposed is proportionately less. 14. In 2008 AIR SCW 4726 (State of Meghalaya and others v. Mecken Singh N.Marak), Supreme Court has held that High Courts, in exercise of powers under Article 226 of Constitution of India, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the Appellate Authority unless shocking to the conscience of the Court, cannot be subjected to judicial review. Petitioner has not made out any substantial ground warranting interference with the impugned order and therefore, the Writ Petition bound to fail. 15. In the result, the Writ Petition is dismissed.