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2014 DIGILAW 1113 (MAD)

E. Parthiban v. State of Tamil Nadu

2014-06-03

T.RAJA

body2014
ORDER : 1. The present writ petition is directed against the impugned order passed by the second respondent-Director General of Police in Rc. No. 87124/Con. V(1)/2002-1 dated 4.7.2008, as confirmed in G.O. (D) No. 521, Home (Pol. IV) Department dated 19.6.2009 passed by the first respondent-Secretary to Government, Home (Pol. IV) Department, in and by which the punishment of compulsory retirement was imposed on the petitioner, who was working as Inspector of Police, Thoothukudi South Police Station. 2. Mr. S. Doraisamy, learned counsel for the petitioner submitted that while the petitioner was working as Inspector of Police in Thoothukudi South Police Station during the year 1998, he was slapped with the charge memo dated 28.10.2002 on the allegation that in collusion with Grade-I Police Constable, PC-879 Mr. S. Chokalingam of Prohibition Enforcement Wing Unit, Thoothukudi, had demanded a bribe of Rs. 1,50,000/- on 26.12.98 from one Mr. Solomon of Thoothukudi, who was involved in illicit drug trafficking to favour his clandestine activities without exposing and initiating criminal action against him, and alleged to have accepted a bribe of Rs. 1,00,000/- on 29.12.98 from the said Mr. Solomon and thereby committed grave misconduct, misdemeanor and failed to maintain absolute integrity and devotion to duty. The said charge was referred to the Commissioner of Tribunal for Disciplinary Proceedings, Tirunelveli (for short, the Tribunal) for enquiry and report by the Government in Home (Police IV) Department in their Letter (MS) No. 236 dated 20.3.2002. Thereafter, the Tribunal asked the Deputy Superintendent of Police, Vigilance and Anti-Corruption, Thoothukudi to send the prosecution records relating to the allegations against the petitioner and Mr. S. Chockalingam. Accordingly, the Deputy Superintendent of Police, Vigilance and Anti-Corruption, Thoothukudi sent the records to the Tribunal on 28.10.2002. Thereafter, the Tribunal framed charges against both the petitioner and Mr. S. Chockalingam and the same were served upon them on 22.11.2002 and 26.11.2002 respectively. In the meantime, the Secretary to Government, Personnel and Administrative Reforms (Training) Department, Chennai had requested the department to arrange to obtain necessary formal orders from the Government in Home (Police IV) Department for conducting enquiry by the Tribunal and ratify the action in having proceeded with the enquiry in anticipation of formal orders for transferring the case to the Tribunal for Disciplinary Proceedings, Nagercoil. Subsequently, the Government also withdrew the case of the petitioner and Mr. Subsequently, the Government also withdrew the case of the petitioner and Mr. S. Chockalingam, Grade-I PC from the Tribunal for Disciplinary Proceedings, Tirunelveli and transferred the same to the Tribunal for Disciplinary Proceedings, Nagercoil in the order (2D) No. 22 dated 20.1.2005. In the meanwhile, when the matter was posted for examination of witnesses on 20.1.2003, 13 prosecution witnesses were examined and 9 exhibits in prosecution side and one exhibit in defence side were marked upto 4.8.2003. After two years, on examination of 19 prosecution witnesses and on marking of 11 exhibits on the prosecution side and 3 exhibits on the defence side totally, the enquiry was concluded and the petitioner was asked to file his written statement. Accordingly, a written statement dated 3.5.2006 was filed. 3. Further elaborating the evidence produced by the prosecution, the learned counsel submitted that when the case of the prosecution proceeded on the footing that Mr. Solomon, PW-15 made a complaint that he was demanded Rs. 1,50,000/- by Mr. S. Chockalingam, Grade-I PC on behalf of the petitioner, the very same Solomon, PW-15 and another witness Mr. Raju, PW-16 turned hostile to the prosecution. Moreover, Mr. Solomon, PW-15, who is alleged to have met the petitioner at Ratina Lodge, wherein the accused is alleged to have demanded a sum of Rs. 1,50,000/- has specifically stated in the enquiry that the petitioner and Mr. S. Chockalingam did not demand any such bribe. Followed by Mr. Solomon, PW-15, one Mr. Raju, PW-16 also turned hostile. Moreover, although 19 witnesses were examined by the prosecution, out of them, PWs. 1, 3, 4, 6, 7, 9, 10, 14 and 16 have not spoken anything about the charge of this case either in their chief examination or cross examination. The learned counsel further argued that PWs. 2, 15, 16 and 17 turned hostile. Besides, one another important aspect of this case is the evidence regarding the alleged surrender of Rs. 75,000/- by the accused officers as bribe money mentioned by them. But, unfortunately, to bring home the said charge, the prosecution has not taken any effort to produce the said amount either in the enquiry or was sent to the Tribunal. Therefore, when the amount was neither produced nor marked before the Tribunal, there is no documentary evidence produced by the prosecution to show that the amount was also kept in the office of District Police Office, Thoothukudi. Therefore, when the amount was neither produced nor marked before the Tribunal, there is no documentary evidence produced by the prosecution to show that the amount was also kept in the office of District Police Office, Thoothukudi. In addition thereto, PW-13 admitted that he did not prepare any mahazar for receiving the amount from the accused officers. Even though PW-13 had stated that the amount was handed over to PW-8, surprisingly, no acknowledgment or receipt was produced. Again canvassing on the failure of the prosecution to establish the case that the other witnesses, namely, PWs. 15 to 17 have not supported the prosecution case, the Tribunal had no other option except to accept the case of the petitioner that no charge as framed against the accused was proved. But erroneously, the Tribunal submitted a report holding that the charge framed against the petitioner was proved on the basis of circumstantial evidence. 4. Adding further, the learned counsel submitted that the petitioner being Inspector of Police is governed by the Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules, 1955 and not the Tamil Nadu Civil Services (Discipline & Appeal) Rules and hence the enquiry conducted by the Tribunal under the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules is without jurisdiction, inasmuch as the above rules are applicable only to civil services and not to police service, which is governed by a separate rule. Therefore, the award of punishment based upon the order of the Tribunal is illegal and the same is liable to be set aside by this Court. The learned counsel further submitted that when the second respondent wrongly awarded the punishment of compulsory retirement without independently analysing the findings recorded by the Tribunal, the appeal filed by the petitioner should have been decided after affording an opportunity of being heard. But curiously, the first respondent, without following the principles of natural justice, confirmed the major punishment of compulsory retirement from service on the petitioner. Indeed, when the case of the prosecution was that the petitioner demanded Rs. 1,50,000/- from one Mr. Solomon, PW-15 who was involved in illicit drug trafficking, neither the second respondent nor the first respondent examined the statement made by PW-15, who did not even support the case of the prosecution. In fact, no other material was placed before the Tribunal contradicting the evidence of the said Solomon, PW-15. 1,50,000/- from one Mr. Solomon, PW-15 who was involved in illicit drug trafficking, neither the second respondent nor the first respondent examined the statement made by PW-15, who did not even support the case of the prosecution. In fact, no other material was placed before the Tribunal contradicting the evidence of the said Solomon, PW-15. When the alleged charge shows that the petitioner received a sum of Rs. 1,00,000/- from Solomon, there is no explanation whatsoever placed before the Tribunal whether the entire amount was received and the said amount was seized on mahazar and whether the said amount was remitted to any account. Therefore, in the absence of any material that the alleged amount was paid and recovered, it cannot be presumed that the petitioner made a demand and received any amount from PW-15, who finally turned hostile along with PW-16 to the prosecution case. Therefore, when the entire prosecution case was not proved with any material evidence, the findings arrived at by the Tribunal become baseless, hence, the second respondent ought not to have imposed the major punishment of compulsory retirement. 5. Concluding his arguments, it was stated that when the petitioner was serving as Inspector of Police at South Police Station, Thoothukudi, a shooting competition was held in Vallanadu, Tirunelveli District during the last week of December, 1998. It was at that point of time, the Superintendent of Police Mr. Jangid called the petitioner through the Additional Superintendent of Police Mr. Varadaraju for procuring prize articles for shooting competition free of cost. But the petitioner arranged the prize materials for a sum of Rs. 12,000/- along with other articles from his own money and also insisted the Additional Superintendent of Police to reimburse the amount. Subsequently, the said amount was also reimbursed to the petitioner. Once again the petitioner was instructed by the Superintendent of Police Mr. Jangid to lay new pipeline for the swimming pool at the shooting range, Vallanadu at free of cost. As the said work involved huge amount, the petitioner refused to meet the expenses. However, on subsequent reminders, he purchased the PVC pipes for Rs. 10,000/- on loan. Finding that the petitioner was not co-operating with the District Superintendent of Police Mr. Jangid and developing enmity against the petitioner, adding fuel to fire, when there was a clash between the police and advocates regarding some dispute, again the Superintendent of Police Mr. However, on subsequent reminders, he purchased the PVC pipes for Rs. 10,000/- on loan. Finding that the petitioner was not co-operating with the District Superintendent of Police Mr. Jangid and developing enmity against the petitioner, adding fuel to fire, when there was a clash between the police and advocates regarding some dispute, again the Superintendent of Police Mr. Jangid gave a list of advocates to be detained. But the petitioner did not accept the instructions and acted in accordance with law, as a result, the Superintendent of Police decided to wreak vengeance against the petitioner, which resulted in the initiation of the above disciplinary proceedings on the false charge. Although these facts were placed before the Tribunal, neither the Tribunal nor the respondents 1 & 2 had come forward to give any explanation. Moreover, the basis for awarding the major punishment of compulsory retirement from service has not been supported by any good reason either by the second respondent or by the first respondent. Therefore, the impugned punishment is liable to be set aside. 6. A detailed counter affidavit has been filed by the respondents. Mr. S.V. Durai Solaimalai, learned Additional Government Pleader for the respondents, taking on the arguments, vehemently contended that the writ petition itself is not maintainable at all either in law or on facts. While dealing with the first objection that so far as the police officers are concerned, proceedings under the Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules alone should be initiated and not the provisions of Tamil Nadu Civil Services (Discipline & Appeal) Rules, he has argued that the said contention of the petitioner is liable to be rejected, since Rule 1(c)(i) of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955 categorically states that they shall apply to all officers under the rule making control of the State Government. While so, the petitioner being a police officer would certainly fall within the sweep of rule 1(c)(i) of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955. In view of that, when the petitioner has given room for serious misconduct, the matter was referred before the Tribunal for Disciplinary Proceedings in respect of the allegation relating to corruption charges. While so, the petitioner being a police officer would certainly fall within the sweep of rule 1(c)(i) of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955. In view of that, when the petitioner has given room for serious misconduct, the matter was referred before the Tribunal for Disciplinary Proceedings in respect of the allegation relating to corruption charges. Moreover, clause (a) of sub rule (1) of rule 4 also clearly states that cases relating to officers of the State service in respect of matters involving corruption should be referred to the Tribunal for Disciplinary Proceedings for adjudication. Therefore, a conjoint reading of rules 1 and 4 of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955 makes it clear that in respect of cases where Government servants were caught for demand and acceptance of bribe and involved in corruption activities should be dealt with under the provisions of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955. Moreover, rule 8(a)(i) of the said rules contains a non-obstante clause to exclude the applicability of rule 17 of the Tamil Nadu Civil Services (Discipline & Appeal) Rules, which are required to be followed necessarily in cases of misconduct committed by the government servants. Since the non-obstante clause makes it clear that in respect of corruption cases, disciplinary proceedings should be conducted by the Tribunal, there is no restriction under the Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules restricting the disciplinary authority to refer the cases of corruption to the Tribunal. Accordingly, the matter was referred before the Tribunal for adjudication of the corruption charges levelled against the petitioner. Therefore, the first argument advanced by the petitioner that the disciplinary proceedings initiated by the Tribunal under the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955 is without jurisdiction and his case has to be dealt with only by the Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules, is far from acceptance. Ultimately, the learned Additional Government Pleader pointed out that the disciplinary authority, on receipt of the findings recorded by the Tribunal for Disciplinary Proceedings, imposed the punishment based on the factual findings and urged that, in such scenario, there is absolutely no scope for interference by this Court. 7. This Court finds merit in the submissions of the learned Additional Government Pleader for the respondents. 7. This Court finds merit in the submissions of the learned Additional Government Pleader for the respondents. It is pertinent to extract Rule 8(a)(i) of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955, which reads as under:- 8(a)(i) Notwithstanding anything contained in rule 17 of the Tamil Nadu Civil Services (Discipline & Appeal) Rules, the following procedure shall be adopted by the Tribunal in conducting enquiries in cases of corruption and also in cases of corruption combined with other charges. As soon as the records relating to allegations of corruption or of corruption combined with other charges against a Government servant are received, the Tribunal shall frame appropriate charges, communicate them to the person charged together with list of witnesses likely to be examined in respect of each of the charges, copies of the complaints made by the complainants, copies of statements taken from the witnesses which form the basis on which the Tribunal has framed the charge or charges against him and with information as to the date and place of enquiry. At the enquiry, oral and documentary evidence shall be first adduced by the prosecution and the person charged shall be entitled to cross-examine the prosecution witnesses and to explain any documents produced by the prosecution. The person charged shall thereafter, within the time allowed by the Tribunal, file a written statement of his defence along with a list of witnesses whom he wishes to examine, stating the points on which he proposes to examine each of them, provided that he need not so specify the points for examination in his own case, when he wishes to examine himself as well. The oral and documentary evidence on his side shall then be adduced. After the enquiry is completed, the Tribunal shall hear the Prosecutor for Disciplinary Proceedings and the person charged or permit them to file the briefs of their respective cases, if they so desire. A copy of the written brief, if submitted by the Prosecutor for Disciplinary Proceedings, shall be served on the person charged, before he is required to submit his reply written brief. The Tribunal shall as far as possible, observe the basic rules of evidence relating to the examination of witnesses and the marking of documents. A copy of the written brief, if submitted by the Prosecutor for Disciplinary Proceedings, shall be served on the person charged, before he is required to submit his reply written brief. The Tribunal shall as far as possible, observe the basic rules of evidence relating to the examination of witnesses and the marking of documents. As rightly contended by the learned Additional Government Pleader for the respondents, a mere perusal of the non-obstante clause of the above rule clearly and explicitly excludes the applicability of rule 17 of the Tamil Nadu Civil Services (Discipline & Appeal) Rules in cases relating to corruption charges. Therefore, there is no inconsistency or repugnancy between these rules. In view of that, the petitioner being the Inspector of Police alleged with the corruption charge can very well be dealt with only under the provisions of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955 for imposition of any punishment on the charges of corruption. Accordingly, the first contention of the petitioner fails. 8. While answering the second argument, after the Tribunal submitted its finding on the charge levelled against the petitioner, the petitioner was called upon to submit his explanation. Accordingly, he submitted his detailed explanation on 21.1.2008. The second respondent being the competent authority, not satisfied with the explanation of the petitioner, decided to award the punishment of compulsory retirement without issuing notice to the petitioner to show cause about the proposed punishment to be awarded. The question of issuing notice to the petitioner, after the submission of report by the enquiry officer, by the disciplinary authority calling upon the petitioner to show cause on the proposed punishment has been concluded long time back by the Apex Court in the case of Punjab National Bank and Others vs. Sh. Kunj Behari Misra, (1998) 7 SCC 84 , holding that after the 42nd amendment, it is not necessary to issue any notice calling for explanation from the delinquent officer on the quantum of punishment. Therefore, the second argument also fails. 9. Moving to the third contention raised by the petitioner on the crux of the prosecution case as to whether the petitioner demanded Rs. 1,50,000/- from one Mr. Solomon, PW-15 who was involved in illicit drug trafficking, it was heavily focussed before this Court that the said Mr. Solomon, PW-15, on being examined before the Tribunal, did not support the case of the prosecution. 1,50,000/- from one Mr. Solomon, PW-15 who was involved in illicit drug trafficking, it was heavily focussed before this Court that the said Mr. Solomon, PW-15, on being examined before the Tribunal, did not support the case of the prosecution. It is not in dispute on either side before this Court that the Tribunal has recorded its finding that Mr. Solomon, PW-15 turned hostile to the prosecution. When the allegation levelled against the petitioner indicates that he demanded a bribe from the said Solomon and obtained a bribe of Rs. 1,00,000/- through Mr. S. Chockalingam, Accused No. 2, it is not known how the Tribunal can hold the charge as proved against the petitioner, when the said Solomon turned hostile to the prosecution case. Besides, PW-18 also refused to support the case of the prosecution. When the edifice of the prosecution stands on the foundation of Exs.P5 and the evidence of PWs. 15 and 18, unfortunately, both PWs. 15 and 18 not only supported the case of the defence but also denied the conduct of the accused officers. Moreover, the official diaries of PWs. 13 and 18 were not even seized and marked before the Tribunal. Top of all, the most important aspect of the case is the evidence regarding the alleged surrender of Rs. 75,000/- by the accused officers as mentioned by the prosecution. Unfortunately, when the charge says that the petitioner demanded and accepted Rs. 1,00,000/- it is an admitted fact that the said amount of Rs. 1,00,000/- was neither seized nor recovered or sent to the Tribunal for marking as document. Moreover, as per the evidence of PW-8, there is no entry in the cash book of the District Police Office regarding the sum of Rs. 75,000/-. Further, when the findings of the Tribunal show that there is no document to show that the amount was kept in the chest of the District Police Office, Thoothukudi, it is not safe to conclude that the petitioner either demanded or accepted the above said amount. In addition thereto, when 19 witnesses were examined by the prosecution side, out of them, PWs. 1, 3, 4, 6, 7, 9, 10, 14 and 16 have not spoken anything about the charge of this case in their chief or cross examination. Moreover, the findings recorded by the Tribunal again show that no mahazar was prepared for seizure during enquiry. In addition thereto, when 19 witnesses were examined by the prosecution side, out of them, PWs. 1, 3, 4, 6, 7, 9, 10, 14 and 16 have not spoken anything about the charge of this case in their chief or cross examination. Moreover, the findings recorded by the Tribunal again show that no mahazar was prepared for seizure during enquiry. In this regard, when PW-13 has also admitted that a mahazar must be prepared for seizure of anything, but he was unable to explain the non preparation of mahazar in this case. Therefore, the evidence of the above witnesses no way helps to prove the charge against the petitioner. A perusal of the finding of the Tribunal also supports the case of the defence stating that nowhere in the statement, anything was found that the accused officers had demanded any bribe from Mr. Solomon, PW-15. Moreover, another side of the argument of the prosecution that a confidential enquiry was ordered against the officers based on the information given by PW-2 also does not infuse any confidence, for the reason that the Tribunal has recorded in its finding that no summon or notice or warrant was issued to the accused officers to appear before PW-13. Besides, PW-13 also in his deposition before the Tribunal admitted that he did not send any specific report to the Superintendent of Police regarding the amount surrendered by the accused officers. As per the evidence of PW-8 and PW-19, in order to have an enquiry, the investigating officer has to issue summons to the accused officer for appearance and if any money is recovered, it should be sent to Vigilance and Anti-Corruption department. Therefore, even looking at the case of the department from either side, goes to show that there was absolutely no documentary evidence regarding the charge of demand and acceptance of bribe from Mr. Solomon established. As highlighted above, the official diaries of PWs. 13 and 18 were not seized and marked. When the charge itself indicates that the petitioner demanded Rs. 1,50,000/- and accepted a sum of Rs. 1,00,000/- the said amount was neither sent to the Tribunal nor marked before the Tribunal. Besides, as per the evidence of PW-8, there is not even an entry in the cash book of the District Police Office regarding either the sum of Rs. 1,00,000/- or Rs. 75,000/-. 1,50,000/- and accepted a sum of Rs. 1,00,000/- the said amount was neither sent to the Tribunal nor marked before the Tribunal. Besides, as per the evidence of PW-8, there is not even an entry in the cash book of the District Police Office regarding either the sum of Rs. 1,00,000/- or Rs. 75,000/-. Even a careful and repeated readings of the report of the Tribunal for Disciplinary Proceedings also do not indicate that the Tribunal has given any clinching findings on the charges, except the last two lines holding him guilty on circumstantial evidence that is also found missing, therefore, I am of the view that it is a case of no evidence. These aspects have not been properly considered by the disciplinary authority or the appellate authority. In the light of the above, when the preponderance of probability has also not been established, the finding given by the Tribunal that based on circumstantial evidence the charges framed against the accused officers are proved, is unsustainable. The second respondent failed to consider the oral and documentary evidence recorded in the enquiry and came to the erroneous conclusion that the charge was proved, which is not supported by any material. Therefore, the punishment imposed against the petitioner on the basis of no evidence is required to be interfered with. Accordingly, the impugned orders are set aside and the respondents are directed to reinstate the petitioner in service. However, by applying the principle of no work no pay, he is not entitled for any backwages, but the period of non-employment shall be counted as continuity of service for other benefits. The writ petition stands allowed. No costs.