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2013 DIGILAW 3433 (MAD)

P. Nesamani v. Director General of Police Chennai

2013-09-20

D.HARIPARANTHAMAN

body2013
Judgment 1. The petitioner was a Grade II Police Constable working in Kannankurichi Police Station, Salem Town. He was issued with a charge sheet dated 19.3.2004 by the Deputy Commissioner of Police (Law and Order), Salem City under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules. The allegation against the petitioner was that on 25.1.2004 at about 6.30 p.m., the petitioner, on drunken mood, attempted to commit rape on one Tamil Selvi, daughter of Rengan. 2. The petitioner did not submit any explanation. An enquiry was conducted by the Assistant Commissioner of Police, Prohibition and Enforcement Wing, Salem City. In the enquiry, Department examined 12 witnesses including the victim girl Tamil Selvi. 3. Thereafter, the petitioner examined two witnesses on his side as defence witnesses. Pursuant to the enquiry, the enquiry officer gave his report dated 29.8.2005 holding that the charges were not proved. 4. The disciplinary authority, the second respondent herein, disagreed with the findings of the enquiry officer and issued a show cause notice dated 16.12.2005 as to why he could not come to a different conclusion that the charges were proved for the reasons given in the show cause notice. The petitioner gave his explanation to the aforesaid differed findings of the disciplinary authority, on 25.1.2006. Thereafter, the second respondent came to the conclusion that the charges were proved and imposed the punishment of postponement of increment for 3 years with cumulative effect vide order dated 10.4.2006. The petitioner filed a Review Application under Rule 15-A of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules to the first respondent against the aforesaid punishment. The first respondent rejected his review by order dated 3.7.2008 and confirmed the order of imposition of penalty by the second respondent. 5. The petitioner has filed this Writ Petition to quash the order dated 10.4.2006 of the second respondent and the order dated 3.7.2008 of the first respondent, confirming the order of the second respondent. 6. The second respondent has filed a counter affidavit refuting the allegations. It is stated that a criminal case was registered against the petitioner in Kondalampatty Police Station in Crime No.27 of 2004 under Sections 354, 376 r/w 511 IPC for having molested and attempted to rape one Tamil Selvi, daughter of Rengan, Kombaikadu, Sivadapuram Village in Salem Taluk at about 6.30 p.m., on 25.1.2004. It is stated that a criminal case was registered against the petitioner in Kondalampatty Police Station in Crime No.27 of 2004 under Sections 354, 376 r/w 511 IPC for having molested and attempted to rape one Tamil Selvi, daughter of Rengan, Kombaikadu, Sivadapuram Village in Salem Taluk at about 6.30 p.m., on 25.1.2004. He was placed under suspension on 29.1.2004. It is stated that simultaneously, the departmental action was taken under Rule 3(b) of the TNPSS Rules, 1955 in P.R.No.22/H1/2004 against the petitioner. On enquiry, the enquiry officer found that the charges were not proved. The disciplinary authority did not agree with the findings of the enquiry officer and had issued a dissenting note. The petitioner gave reply to the differed findings. Rejecting the reply, the disciplinary authority imposed the punishment as per the order dated 10.4.2006. The mercy petition was also rightly rejected by the first respondent. The respondents sought for dismissal of the Writ Petition. 7. Heard the learned counsel for the petitioner. 8. The learned counsel for the petitioner has made only one submission. According to him, the second respondent/disciplinary authority should issue two notices before passing the impugned order of punishment. It is submitted that whenever the disciplinary authority disagrees with the findings of the enquiry officer, the disciplinary authority shall give notice that his tentative conclusion is different from the findings of the enquiry officer and the delinquent shall be asked his views for his tentative conclusion. Thereafter, the disciplinary authority shall hear the delinquent, on his conclusions on the findings of the enquiry officer, by issuing a second notice to the delinquent. It is submitted by the learned counsel for the petitioner that the aforesaid submission is based on the two judgments, namely, judgment of the Supreme Court in Lav Nigam vs. Chairman & MD, ITI Ltd., and another reported in (2006) 9 SCC 440 and the judgment of this Court in S.Subramani vs. The Commandant and others rendered in Writ Petition No.39246 of 2003 dated 12.11.2009. 9. On the other hand, the learned Special Government Pleader has submitted that there is no infirmity in the procedure followed by the disciplinary authority. Two notices are not required in the case of disagreement by the disciplinary authority with the findings of the enquiry officer. 9. On the other hand, the learned Special Government Pleader has submitted that there is no infirmity in the procedure followed by the disciplinary authority. Two notices are not required in the case of disagreement by the disciplinary authority with the findings of the enquiry officer. The requirement as held by the Apex court in Punjab National Bank v. Kunj Behari Misra reported in (1998) 7 SCC 84 is that before arriving at different finding from that of the enquiry officer who recorded a finding of not guilty, the delinquent shall be heard once. 10. I have considered the submissions made by the learned counsel on either side. 11. In this case, the victim was examined as P.W.1 and she deposed that on 25.1.2004 at about 6 p.m., she along with her sister Gomathi went to the field for fetching water for the land and coming through the Sivadapuram main road. At that time, one person came in a motor cycle nearer to them and asked way for Sivadapuram. She replied for the same. He again and again asked for the way to Sivadapuram. The person who came in the motorcycle followed them. When they asked as to why he was following them since the road will not lead to Sivadapuram, he replied that somebody told that this road would lead to Sivadapuram. She asked him from where he was coming from, for which he replied that he was coming from Salem. Then he stopped the motorcycle and asked whether he could drink the water in the canal for which she replied that water would not be nice. While so, when she was on the way to her house, he came behind her, suddenly closed her mouth and caught her hip and turned towards him. She along with her sister raised alarm and on hearing the same, her father who was available nearby came there along with the public, he then released her and was about to start the vehicle but the public caught hold of him. The public tied him. At that time, he informed that he is a Police. 12. P.W.2 was cross-examined. The entire cross-examination of P.W.2 is extracted hereunder: "It is true that the delinquent picked the witnesses by closing her mouth and a hand on her waist. The public only tied the delinquent. The public tied him. At that time, he informed that he is a Police. 12. P.W.2 was cross-examined. The entire cross-examination of P.W.2 is extracted hereunder: "It is true that the delinquent picked the witnesses by closing her mouth and a hand on her waist. The public only tied the delinquent. The version of the delinquent is not correct and the statement given to the police only is true." 13. In the departmental enquiry, the sister of the victim was examined as P.W.4, who was also an eye witness. P.W.4 supported the version of the victim. P.W.4 was also cross-examined by the petitioner. The cross-examination of P.W.4 is as follows: "It is true that the delinquent picked her sister by closing her mouth and catching her waist. When Inspector Sundararajan, S.I., thiru Baskar came there from temple bandobust the delinquent was kept his hand tied. The version of the delinquent is not correct." 14. Thereafter, two defence witnesses were examined after the examination of 12 witnesses on the side of the Department. The first defence witness is one G.Murali. He deposed that he went along with his friend Raja to Puthur for witnessing Easwaran Temple Kumbabishekam on 25.1.2004 at about 6.30 p.m. When they were standing at the corner of Tar Road at Kombaikadu, Sivadapuram, one person who came in a motor cycle stopped his vehicle and searched something in the land. At that time, they heard the alarm of a woman that "thief" "thief" and they stopped at the place and listened to the side from which the alarm came. At that time, the person who came in the motorcycle was in search of something seriously. Within a minute or two or three, men and women came from the opposite house and attacked the said person by means of stick, iron rod etc.. When they went near the scene, they found that the public attacked the person who came in the motorcycle and the public tied the hands and legs of that person. Mr.Rangan was one among them and he scolded the motorcycle rider. 15. The second defence witness Raja also supported the aforesaid version of first defence witness Murali. 16. When they went near the scene, they found that the public attacked the person who came in the motorcycle and the public tied the hands and legs of that person. Mr.Rangan was one among them and he scolded the motorcycle rider. 15. The second defence witness Raja also supported the aforesaid version of first defence witness Murali. 16. The second respondent issued a show cause notice dated 16.12.2005 stating as to why he shall not come to a different conclusion that the charges were proved by differing with the findings of the enquiry officer for the reasons given in the show cause notice. Thereafter, the second respondent has stated in paragraph 3 that the enquiry officer came to the conclusion that the charges against the petitioner were not proved based on the following consideration. "(i) The delinquent was involved in the criminal case under IPC Section of law, but the matter was not remitted to Revenue Officials for enquiry under PSO 144 or 145. (ii) Section 4(1)(j) of TNP Act was not added in the criminal case to prove his drunkenness at the time of the alleged occurrence. (iii) The victim girl Tamilselvi has not subjected to medical examination to find out scratches or moles of violence, which creates suspicion about the attempted rape. (iv) P.Ws.2 to 6 were interested witnesses and further they gone completely contradictory accounts as to who tied up the delinquent. (v) The value of evidence adduced by the two defence witnesses deserves consideration on judicial point of view. (vi) There is no material evidence of independent witnesses and recorded proof to substantiate the allegation against the deponent." 17. Thereafter, the second respondent gave his reasons as to why he did not agree with the findings of the enquiry officer. The reasons for differing with the findings of the enquiry officer are given in paragraphs 4 to 12. The second respondent has categorically held in paragraph 11 that as the victim being an eye witness deposed in the enquiry as P.W.2 and her sister, who is also an eye witness deposed in the enquiry as P.W.4 and based on the cogent evidence coupled with the corroborative evidences of all other witnesses, the second respondent is of the view that the charges are established. 18. 18. The reasons for differing with the findings of the enquiry officer are stated in paragraphs 4 to 12 and those paragraphs are extracted below: "4. Now, I do not find force in the argument advanced by the delinquent and accepted in to by the Enquiry Officer that the case was not referred to any Revenue officials for enquiry under PSO 144 or 145. It should be borne in mind that disciplinary action or legal action against an erring official will equally serve the purpose. All that matters is that the Enquiry Officer or the Jury should resolve never to take sides. 5. The delinquent has stated that non-inclusion of section 4(1)(j) of TNP Act in the criminal case against him goes to prove that he was not under the influence of alcohol at the time of occurrence. It shows that he conveniently tries to ignore or hush up the evidence on record disclosing a prima facie case against him in this regard. 6. It is certainly not the case of the prosecution as put in by the delinquent and the Enquiry Officer that the delinquent pushed down the victim girl on the ground with an intention to rape her. In fact none of the witnesses on prosecution side or defence side spoke about such circumstance. Therefore, there is no question of scratches or marks of violence to be found on her person. 7. It is true as claimed by the delinquent and the Enquiry Officer that P.Ws.2 to 8 are interested witnesses. They are all in fact members of the family but on that account alone their evidence cannot be brushed aside. They are natural and probable witnesses and as such their evidence must be weighed properly to reach correct conclusion. 8. As regards the defence witnesses produced by the delinquent, they are chance witnesses. Besides they made their intermittent appearances at the scene of occurrence at their convenience. Therefore, their evidence inspires no confidence and so merits no consideration. 9. According to the delinquent and the Enquiry Officer, the independent witnesses P.Ws.7 to 9 deposed nothing against the delinquent and there is no recorded/documentary proof to substantiate the allegation against the delinquent. On the other hand, there is ample and fruitful evidence on record that clinches with the issue and proves the offence of the delinquent to the hilt. 10. According to the delinquent and the Enquiry Officer, the independent witnesses P.Ws.7 to 9 deposed nothing against the delinquent and there is no recorded/documentary proof to substantiate the allegation against the delinquent. On the other hand, there is ample and fruitful evidence on record that clinches with the issue and proves the offence of the delinquent to the hilt. 10. Taking the overall picture of the prosecution case, I am left with the impression that the occurrence would not have taken place in the manner as given to by the defence witnesses and explained by the delinquent but it could have happened as truly deposed by the prosecution witnesses. 11. P.W2 is the main eye-witness being the victim herself and her sister PW 4 is the another eye witness to the occurrence. Their cogent evidence coupled with the corroborative evidences of all other witnesses and the documentary evidences clearly point to the guilt of the delinquent. 12. In his findings the Enquiry Officer has in toto reproduced the points raised by the delinquent in his explanation. He has knowingly or unknowingly omitted to appreciate the evidences of prosecution case properly. In the light of all the above, I disagree with the findings of the Enquiry Officer. (Emphasis supplied)" 19. Thereafter, the second respondent directed the petitioner to make a representation on the aforesaid differed findings in paragraph 13 of the show cause notice. Paragraph 13 of the show cause notice is extracted as follows: "PC 1316 Nesamani, the delinquent is hereby directed to make his representation if any he wishes to make in his defence and against this show cause notice in writing within 15 days from the date of its receipt. If his written explanation is not received within the stipulated time, it will be considered that he has no valid explanation to offer and orders on the PR.22/2004 u/r 3(b) against him will be passed on its merits." 20. Thereafter, the petitioner gave his reply dated 25.1.2006 to the differed findings of the second respondent dated 16.12.2005. After the receipt of the reply from the petitioner on the show cause notice, the second respondent passed the impugned order dated 10.4.2006 that on considering the entire materials, he came to the conclusion that the charges were proved and therefore imposed the punishment of stoppage of increment for 3 years with cumulative effect. 21. After the receipt of the reply from the petitioner on the show cause notice, the second respondent passed the impugned order dated 10.4.2006 that on considering the entire materials, he came to the conclusion that the charges were proved and therefore imposed the punishment of stoppage of increment for 3 years with cumulative effect. 21. The review filed against the punishment order was dismissed by the first respondent. Both orders are questioned in this Writ Petition. 22. The learned counsel for the petitioner has heavily relied on the judgment of the Apex Court in Lav Nigam vs. Chairman & MD, ITI Ltd., and another reported in (2006) 9 SCC 440 . In that case, the enquiry officer exonerated the appellant by his report dated 10.3.1997 in respect of all three articles of charges. But the disciplinary authority passed an order dated 7.7.1997 proposing the punishment of removal from service under Rule 25(f) of the Conduct, Discipline and Appeal Rules, 1975 of the ITI Ltd., wherein the appellant is employed. The disciplinary authority differed with the findings and came to the conclusion that the charges were established without hearing the appellant. Straight away, the disciplinary authority decided to impose the penalty of removal and the appellant was asked to explain on the penalty and not on the differed findings. 23. It is also relevant to extract paragraph 4 of the judgment in this regard, which is as follows: "4. The disciplinary authority passed an order on 7.7.1997 in which he stated: Thus, after careful consideration of the evidence which has been produced for substantiating the charges one and two, the undersigned has provisionally come to the conclusion that Shri Lav Nigam, St.No.247(i) is not a fit person to be retained in the services of the company and that a major penalty should be imposed on Shri Lav Nigam and accordingly proposes to impose on him the penalty of removal under Rule 25(f) of the Conduct, Discipline and Appeal Rules, 1975 of the ITI Ltd. Now, therefore, Shri Lav Nigam is hereby given an opportunity of making representation on the penalty proposed above. Any representation which he may wish to make against the penalty proposed will be considered by the undersigned. Any representation which he may wish to make against the penalty proposed will be considered by the undersigned. If any should be made in writing and submitted so as to reach the undersigned not later than 15 days from the date of receipt of this show cause notice by Shri Lav Nigam." The appellant therein approached the High Court contending that the disciplinary authority was obliged to give a separate show cause notice if the disciplinary authority differed with the findings of the enquiry officer. The High Court rejected the Writ Petition. Thereafter, the appeal was filed before the Apex Court. The Apex Court held that before issuing a notice on the proposed penalty on the ground that the charges were established when the enquiry officer held that the charges were not proved, the delinquent shall be heard by giving notice on the differed findings of the disciplinary authority. It is relevant to extract paragraphs 9 and 10 in this regard: "9. Challenging the orders of the respondent authorities the appellant filed a Writ Petition before the High Court. The appellant specifically raised the issue that the disciplinary authority was obliged to give a separate show cause notice, if the disciplinary authority differed with the inquiry officer. The High Court also held that there was no need to give two separate show cause notices, one before the disciplinary authority found against the employee while differing with the view of the inquiry officer, and another against the proposed punishment. It was further held that he two notices could be combined in one. The Writ Petition was accordingly dismissed. 10. The conclusion of the High Court was contrary to the consistent view taken by this Court that in case the disciplinary authority differs with the view taken by the inquiry officer, he is bound to give a notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant that the disciplinary authority would at all arrive at a final finding of guilt. Therefore, the employee would again have to be served with a notice relating to the punishment proposed." 24. In that case, the Conduct, Discipline and Appeal rules of the respondent company contemplate giving an opportunity before imposing the penalty, based on the findings of the guilt. Therefore, the employee would again have to be served with a notice relating to the punishment proposed." 24. In that case, the Conduct, Discipline and Appeal rules of the respondent company contemplate giving an opportunity before imposing the penalty, based on the findings of the guilt. The respondent therein is not the Department of the Government and it was a public sector undertaking, which is a company. 25. As far as the Government employees are concerned, 42nd amendment to the Constitution has dispensed with giving an opportunity to the delinquent Government servant on the penalty. Therefore, there is no requirement to give two notices, one with regard to the guilt in the enquiry and thereafter on the penalty. Hence, the said judgment cannot be applied to the present case. Admittedly, in the said case, the disciplinary authority recorded a differed finding without hearing the appellant and that was not accepted by the Apex Court in view of the judgment of the Apex Court in Punjab National Bank v. Kunj Behari Misra reported in (1998) 7 SCC 84 . 26. Likewise, the other judgment cited by the learned counsel for the petitioner is the judgment of learned Single Judge of this Court dated 12.11.2009 in Writ Petition No.39246 of 2003. This judgment is also of no use to the petitioner. In that case also, the enquiry officer held that both charges were not proved. But the disciplinary authority recorded straight away a different finding that the 2nd charge was proved, without hearing the delinquent. In those circumstances, this Court has held that the petitioner therein should have been heard on the differed findings when the disciplinary authority came to the different conclusion from that of the enquiry officer as per the decision of the Apex Court in (2006) 9 SCC 440 (cited supra). 27. Hence, I am of the view that this judgment also is not helpful to the case of the petitioner. On the other hand, as rightly contended by the learned Special Government Pleader, the following passage in Punjab National Bank v. Kunj Behari Misra reported in (1998) 7 SCC 84 makes it clear that the delinquent shall be heard on the differed findings: "The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority record its findings on the charges framed against the officer." 28. In the present case, the petitioner was heard on the differed findings rendered by the disciplinary authority, by issuing the show cause notice dated 16.12.2005. The petitioner was asked as to why the disciplinary authority could not give a different conclusion based on the reasons given in the show cause notice. The petitioner also gave his reply to the show cause notice. Thereafter only, the punishment order was passed. Hence, the punishment order was passed in consonance with the doctrine of principles of natural justice and the judgment of the Supreme Court in Punjab National Bank v. Kunj Behari Misra reported in (1998) 7 SCC 84 . 29. Hence, I do not find any infirmity in the impugned orders. The Writ Petition fails and the same is dismissed. No costs.