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2011 DIGILAW 3796 (MAD)

M. Anwar v. Director General Of Police, Chennai

2011-08-24

D.HARIPARANTHAMAN

body2011
JUDGMENT ( 1. ) THE petitioner served as Head Constable in Chennai City Police. During 1992, he served at C-3 Sevenwells Crime Police Station, Chennai. ( 2. ) ON 9.6.1992, one Tr. Balaraman, Cholavaram was apprehended by police personnel of C-3 Sevenwells Police Station and he was allegedly tortured by pouring petrol on his legs and setting fire in order to extract truth from him about two wheeler theft cases. The said Balaraman was illegally detained. He was grievously injured. In these circumstances, the revenue officials conducted enquiry under Police Standing Order 145 and based on the said enquiry, the Government has issued G.O. Ms. No. 338, Public (LandO-A) Department dated 16.4.1993 to take departmental action against Tr. Gunasekaran, Sub-Inspector of Police of C-3 Sevenwells Police Station and 15 others including the petitioner under Rule 3(b) of Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955, shortly "the Rules". The Government also directed for transfer of all the 16 persons out of Chennai. Accordingly, all of them were transferred and disciplinary action were taken against them. ( 3. ) ACCORDINGLY, the petitioner was issued charge memo dated 24.5.1993 alleging that he supported the Sub-Inspector Tr. Gunasekaran in his illegal act of torturing and causing burn injuries to Tr. Balaraman on 9.6.1992. ( 4. ) THE petitioner submitted explanation denying the charges. An enquiry was conducted by the Deputy Commissioner of Police, Anna Nagar. THE enquiry officer held that the charges were not established. Based on the report of the enquiry officer, the punishing authority, the Deputy Inspector General of Police, Chengalpattu Range dropped the disciplinary action against the petitioner. However, the first respondent Director General of Police, Chennai, exercised his suo motu review power under Rule 15A of the Rules and ordered for de novo Enquiry in the order dated 16.11.1999. The same was communicated to the petitioner by the second respondent vide order dated 16.12.1999. ( 5. ) THE Deputy Commissioner of Police, Triplicane was nominated as enquiry officer to hold fresh enquriy. Accordingly, he held enquiry on various dates. 11 witnesses were examined and 16 documents were marked as exhibits on the side of the department. THE petitioner did not examine any witnesses. THE enquiry was commenced on 12.1.2001 and completed on 27.3.2001 and the findings were recorded on 31.3.2001. THE enquiry officer held that the charges were established. ( 6. Accordingly, he held enquiry on various dates. 11 witnesses were examined and 16 documents were marked as exhibits on the side of the department. THE petitioner did not examine any witnesses. THE enquiry was commenced on 12.1.2001 and completed on 27.3.2001 and the findings were recorded on 31.3.2001. THE enquiry officer held that the charges were established. ( 6. ) THE petitioner was heard on the findings of the enquiry officer and thereafter, the impugned order dated 3.10.2001 was passed by the second respondent imposing the punishment of reduction in the time scale of pay by two stages for two years. The second respondent has also passed a consequential order dated 6.10.2001. The petitioner made an appeal to the first respondent on 13.6.2002 and also made a representation to the Honourable Chief Minister to cancel the punishment. The Government rejected the representation of the petitioner and the same was communicated to the petitioner by the second respondent vide proceedings dated 20.2.2004. ( 7. ) THEREAFTER, the petitioner filed O.A. No. 1842 of 2004 before the Tamilnadu Administrative Tribunal at Chennai, (the same was transferred to this Court and converted as W.P. No. 17696 of 2007 (the present writ petition)), to quash the order dated 3.10.2001, 6.10.2001 and 20.2.2004 of the second respondent and to direct the respondent to reimburse the amount deducted by way of punishment and confer all the attendant and consequential benefits. ( 8. ) THE respondents filed counter affidavit refuting the allegations. THE respondents have stated that the petitioner participated in the De-nova Enquiry and all opportunities were given to him. It is stated that based on the findings of the fresh enquiry, the punishment was imposed. Hence, according to the respondents there is no infirmity in the order imposing punishment on the petitioner. Heard both sides. The learned counsel for the petitioner submits that when the incident of the alleged torturing of Tr. Balaraman took place on the night of 9.6.1992, the petitioner was not in the police station and he was in patrol duty, as per the General Diary. Hence, the second respondent was not correct in imposing punishment on the ground that he also involved in the incident along with Thiru Gunasekaran, the Sub-Inspector of Police. Secondly, it was contended that the first respondent has no jurisdiction to order de nova enquiry under Rule 15A of the Rules. Hence, the second respondent was not correct in imposing punishment on the ground that he also involved in the incident along with Thiru Gunasekaran, the Sub-Inspector of Police. Secondly, it was contended that the first respondent has no jurisdiction to order de nova enquiry under Rule 15A of the Rules. Hence, the findings based on such enquiry and punishment thereon are vitiated. According to the learned counsel for the petitioner, the first respondent while exercising his review power could confirm, reduce, enhance or set aside the penalty and he could not order for a fresh enquiry. ( 9. ) THE learned counsel for the petitioner has relied on two unreported decisions of this Court in this regard, which are as follows: 1. M. Rathnavel v. Managing Director, Tamil Nadu Housing Board W.P. No. 28781 of 2007 dt.8.2.2008 2. S. Nedunchezhian v. THE Special Commissioner and the Transport Commissioner, Chepauk, Chennai W.P. No. 27374 of 2010 dt.27.4.2011. ( 10. ) ON the other hand, the learned Government Advocate has sought to sustain the impugned order and relied on the counter affidavit. I have considered the submissions made on both sides. One Tr. Balaraman of Cholavaram was detained illegally in C-3 Sevenwells Crime Police Station on 9.6.1992. The said Balaraman was tortured and petrol was poured on his legs and thereafter set fire causing burn injuries. The revenue officials conducted enquiry under Police Standing Order 145. Based on the report of the revenue officials the Government issued G.O. Ms, No. 338 Public (Law and Order) Department dated 6.4.1993 to take departmental enquiry against 16 police officials including the petitioner under Rule 3(b) of the Rules. The Government also directed to transfer all those 16 police officials including the petitioner out of Chennai. Accordingly, the petitioner was transferred along with others. ( 11. ) A charge memo dated 24.5.1993 was issued relating to the incident that took place on 9.6.1992 and the enquiry officer namely, the Deputy Commissioner of Police, Anna Nagar, conducted enquiry. The enquiry officer recorded a finding that the charges were not established. Based on the same, the Deputy Inspector General of Police, Chengalpattu Range dropped the disciplinary proceedings against the petitioner. ( 12. The enquiry officer recorded a finding that the charges were not established. Based on the same, the Deputy Inspector General of Police, Chengalpattu Range dropped the disciplinary proceedings against the petitioner. ( 12. ) WHILE so, the first respondent exercised his suo motu review power under 15A of the Rules and set aside the order of the Deputy Inspector General of Police, Chengalpattu Range dropping the disciplinary action against the petitioner and ordered for a fresh enquiry. The Deputy Commissioner of Police, Triplicane was appointed as enquiry officer. The same was communicated to the petitioner in the order dated 16.12.1999 by the second respondent. The petitioner did not choose to question the order of the first respondent setting aside the order of the Deputy Inspector General of Police, Chengalpattu Range, dropping the disciplinary proceedings. The Deputy Inspector General of Police, Chengalpattu Range is also not made a party in this case. The petitioner participated in the departmental enquiry. The enquiry took place between 12.1.2001 and 27.3.2001. In that enquiry, 11 witnesses were examined and 16 documents were marked as exhibits. The petitioner did not choose to examine anybody on his side. After participating himself in the enquiry, the petitioner later turned around and pleaded that the enquiry was without jurisdiction. ( 13. ) IN my view, the submission of the learned counsel for the petitioner that the first respondent has no jurisdiction to order for fresh enquiry has no substance, in view of Rule 15A of the Rules. The relevant portions of the Rule 15A of the Rules are extracted hereunder: "Rule 15A. (1) Notwithstanding anything contained in these rules: (i)the Stage Government or (ii)the Head of the Department directly under the State Government servant serving in a department or office under the control of such Head of Department; or (iii)the appellate authority, other than the State Government within six months of the date of the order proposed to be reviewed; or (G.O. Ms. No. 1351 Home (Police-VI) dt.13.12.2000) (iv)any other authority specified in this behalf by the State Government by general or special order, and within such time as may be prescribed in such general or special order, may at any time, either on their or its own motion or otherwise call for the records of any inquiry and review any order made under these rules, after consultation with the Tamil Nadu Public Service Commission where such consultation is necessary and may. (a)confirm, modify or set aside the order; or (b)confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or (c)remit the case to the authority which made the order or to any other authority, directing such authority to make such further enquiry, as it may consider proper in the circumstances of the case; or (d)pass such other orders as it may deem fit." Rule 15A(1)(iv)(c) vests power with the first respondent to remit the case to the punishing authority for further enquiry that includes fresh enquiry. ( 14. ) THE learned counsel for the petitioner relied on two unreported decisions of this Court viz., M. Rathnavel v. Managing Director, Tamil Nadu Housing Board (supra) S. Nedunchezhian v. THE Special Commissioner and the Transport Commissioner, Chepauk Chennai (supra). In my view, both the judgments are not applicable to the facts of the present case. In both the cases, the enquiry officer found the charges were not established. THE disciplinary authority has to decide either to accept the finding or to differ with the findings. But, on the other hand, the disciplinary authority ordered for de-novo enquiry, when no such power is given to him under the rules. Hence, this Court held that the fresh enquiry ordered by the disciplinary authority is bad. In both the cases, the disciplinary authority did not pass any order dropping disciplinary action accepting the findings of the Enquiry Officer, as in this case. On the other hand, in this case, the punishing authority concluded the proceedings by dropping the charges. Order of dropping the charges was reviewed under Rule 15A of the Rules by the first respondent and the first respondent has thought it fit to remit the matter. THE said review power exercised by the first respondent is very much available under Rule 15A of the Rules. Order of dropping the charges was reviewed under Rule 15A of the Rules by the first respondent and the first respondent has thought it fit to remit the matter. THE said review power exercised by the first respondent is very much available under Rule 15A of the Rules. Hence, I reject the contention of the learned counsel for the petitioner that the first respondent has no power to remit the matter for fresh enquiry. Furthermore, as already held, the petitioner has not chosen to challenge the order of the first respondent remitting the matter for fresh enquiry and the petitioner also fully participated in the enquiry, Now he could not turn around and question the power of the first respondent to order for fresh enquiry. For all these reasons, the contentions of the petitioner questioning the fresh enquiry ordered by the first respondent, is rejected. A defence has been taken by the petitioner?s side that the petitioner was not available in the police station at the time of the incident and he was in the patrol duty. I do not agree with the defence taken by the learned counsel for the petitioner, since, Jr. Balaraman, who was the victim of the incident categorically deposed in the enquiry that the petitioner was very much available and also positively participated in the torture incident. In para 21 of the enquiry report by the 3rd respondent shows the participation of the petitioner in the torture incident. The relevant portion in para 21 goes thus: "Tamil" ( 15. ) THE learned counsel argued that this evidence of Mr. Balaraman has to be rejected since he did not state so at the earliest occasion. THE learned counsel for the petitioner brought to the notice of this Court his earlier statement dated 27.6.1992 which is found in page 26 of the typed set. I have perused the statement. In that statement also, he implicated the petitioner. That statement was given while he was taking treatment for his burn injuries. THE following passage from the statement is extracted hereunder: "Tamil" Later, he deposed in the presence of the petitioner that he was also one among the police men who indulged in torturing him. In these circumstances, I do not find any infirmity in the findings of the enquiry authority. THE punishment order is based on the enquiry report. THE following passage from the statement is extracted hereunder: "Tamil" Later, he deposed in the presence of the petitioner that he was also one among the police men who indulged in torturing him. In these circumstances, I do not find any infirmity in the findings of the enquiry authority. THE punishment order is based on the enquiry report. I do not find any illegality or infirmity in the punishment order dated 3.10.2001 and the consequential order dated 6.10.2001. Hence, this writ petition fails and the same is liable to be dismissed. ( 16. ) IN the result, the writ petition is dismissed. No costs.