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Judgment
D. Hariparanthaman, J.—The Original Application in O.A. No. 10131 of 1998 before the Tamil Nadu Administrative Tribunal is the present
writ petition.
The petitioner joined the Police Service as Sub-Inspector of Police on 02.11.1979. He was promoted as Inspector of Police in 1993. He
served as Inspector of Police in Nanguneri Circle, Kanyakumari District from 10.04.1996 to 13.08.1996. The Inspector of Police, who controlled
the Vijayanarayanam Police Station, was on leave. Hence, he was given additional charge of the said police station during April 1996.
When he was holding the additional charge, two persons namely, Natarajan and Muthukumar, sons of Rathinasamy Nadar, were murdered on
27.04.1996 at 06.00 p.m, at Keelapandarapuram, which comes under the jurisdiction of Vijayanarayanam Police Station, due to the enmity
between two rival groups and both the group belong to the same village, namely, Keelapandarapuram. A case was registered in Crime No. 74/96
in Vijayanarayanam Police Station under Sections 147, 148, 341 and 302 IPC against Selvaraj, Ramar, Sudalai and 4 others, who belong to
Keelapandarapuram.
Following the murders, allegations were made that the houses of the accused persons namely, Selvaraj, Ramar and Sudalai were looted at
Keelapandarapuram, for which, a case was registered by the petitioner in Crime No. 206/96 in Vijayanarayanam Police Station under Sections
380, 457 and 454 IPC against Gopal and Patturajan, who belong to the opposite party. Both Gopal and Patturajan were arrested on 11.11.1996.
The criminal case relating to theft of household articles of Selvaraj, Ramar and Sudalai was proceeded against them.
The petitioner, who held the additional charge of Vijayanarayanam Police Station, immediately took action by registering FIR in Crime No.
74/96 against Selvaraj, Ramar, Sudalai and 4 others, who were accused of committing double murder. The accused persons absconded and later,
they surrendered before the competent criminal Court. Their bail applications were stoutly opposed by the petitioner and they remained in prison
for 113 days.
In the meantime, the petitioner was transferred to Coastal Security Group, Tuticorin. While he was serving in the Coastal Security Group,
Tuticorin, he was served with a charge memo dated 04.07.1997 in P.R. No. 79/97 under Rule 3(b) of the Tamil Nadu Police Subordinate Service
(Discipline and Appeal) Rules 1955. It is alleged in the charge memo that the petitioner along with the civilians namely, Gopal and Patturajan went
to Keelapandarapuram village and took away the Beedi leaves, Grinder and T.V. from the houses of Selvaraj, Ramar and Sudalai, who were the
accused in the murder case in Crime No. 74/96. However, he received the charge memo only on 07.11.1997.
It is stated that the petitioner was not an accused in Crime No. 206/96 relating to the same allegations.
Before serving the charge memo, four witnesses were examined as PW1 to PW4 in his absence. Pws.1 to 3 were examined on 30.09.1997 and
PW4 was examined on 24.10.1997. The examination of witnesses took place while the petitioner was on medical leave from 09.07.1997 to
21.10.1997. It is also stated that no notice of enquiry was served on him. Thereafter, on his request, he was permitted to cross examine those
witnesses and PW5 was examined in his presence and he cross examined PW5. The petitioner let in 3 defence witnesses who were all police
personnel served in Vijayanarayanam Police Station. He produced the General Diary of Vijayanarayanam Police Station through DW1, the then
Sub-Inspector of Police of the Vijayanarayanam Police Station. The Enquiry Officer submitted a report dated 25.01.1998 holding that the charge
was proved. Based on the said findings, the second respondent passed an order dated 06.05.1998 imposing the punishment of dismissal from
service. The petitioner preferred an appeal dated 25.05.1998 and the same was rejected by the first respondent on 10.09.1998.
The petitioner filed Original Application in O.A. No. 10131 of 1998 (W.P. No. 34189 of 2006) praying to quash the aforesaid orders dated
06.05.1998 of the second respondent and 10.09.1998 of the first respondent and for a consequential direction to the respondents to reinstate him
in service with all consequential benefits.
Heard Mr. Ravi Shanmugam, learned Counsel for the petitioner and Mr. S.Shiva Shanmugam, learned Government Advocate for the
respondents. The learned Government Advocate has produced the entire file relating to the order of dismissal for perusal.
The respondents filed reply affidavit refuting the allegations. It is stated that the petitioner was imposed with the punishment of dismissal from
service based on the enquiry granting him all opportunities. It is stated that the message and call letters to attend the oral enquiry on 22.02.1997,
30.09.1997 and 24.10.1997 were sent to the petitioner through the Deputy Superintendent of Police, Coastal Security Group, Tuticorin. The
petitioner failed to turn up for the oral enquiry under some pretext or the other. As he did not turn up for oral enquiry, P.Ws 1,2 and 3 were
examined on 30.09.1997 and P.W. 4 was examined on 24.10.1997. On 15.11.1997, he requested for an opportunity to cross examine the PWs
1 to 4. Accordingly, he was granted opportunity to cross examine those witnesses, who were already examined in his absence. They were cross
examined on 28.11.1997. Since the charge was grave in nature, the petitioner was dismissed from service based on the findings recorded in the
enquiry.
The learned Counsel for the petitioner has made elaborate submissions. Firstly, he submits that the enquiry was held in blatant violation of
principles of natural justice as PWs 1 to 4 were examined in his absence and he was not informed about the commencement of the enquiry and the
examination of witnesses. It is further elaborated that without even serving him the charge memo, the enquiry was commenced in his absence.
While he received the charge memo on 07.11.1997, the witnesses were examined on 30.09.1997 and 24.10.1997. It is also submitted that while
the petitioner was on medical leave from 09.07.1997 to 21.10.1997, the enquiry was conducted in his absence without even putting him on notice
about the enquiry.
Secondly, the learned Counsel for the petitioner submits that there is no legal evidence to support the finding of guilt. Though 7 witnesses were
cited, due to the death of Selvaraj and Sudalai, those witnesses were not examined and the statements made by them were also not produced in
the enquiry. The only alleged eye witnesses were PWs 2, 3 and 4. P.W.4 did not say anything against the petitioner and thus the evidence of PWs
2 and 3 were heavily relied on by the respondents to inflict the punishment of dismissal. But, according to the learned Counsel, both the witnesses
were not on picketing duty at Keelapandarapuram between 27.04.1996 to 30.04.1996 and hence their evidence should also be discarded as they
were not eye witnesses and they gave false evidence as directed by the higher officials. To drive home this point, he relied on the General Diary
produced in the enquiry through the then Sub-Inspector of Police who was examined as DW1. Since those witnesses were not at all in
Keelapandarapuram as per the General Diary, the respondents were not correct in proceeding the matter, as if they were eye witnesses.
Thirdly, the learned Counsel for the petitioner submits that when the petitioner was not shown as accused in Crime No. 206/96 relating to the
commission of theft of household articles of Selvaraj, Ramar and Sudalai, there is no basis for making allegation in the charge memo in P.R. No.
79/97 that the petitioner involved in the commission of theft along with the accused in the said Crime No. 206/96. It is submitted that based on the
alleged confession made by the accused in the said crime, the charge memo in P.R. No. 79/97 was issued against the petitioner. But the alleged
confession statement was not produced in the enquiry. Based on such an alleged confession, PW5 conducted a preliminary enquiry on 05.02.1997
after about 10 months of the alleged incident and based on such an enquiry, charge memo in P.R. No. 79/97 was issued. Therefore, the entire
exercise is malafide. It is also submitted that proceeding on the basis of the alleged confession of an accused itself is bad and illegal. Reliance is
placed on the judgment of the Honourable Apex Court in Bhagat Ram Vs. State of Himachal Pradesh and Others, .
On the other hand, relying on the reply affidavit, the learned Government Advocate seeks to sustain the impugned order of dismissal.
I have considered the submissions made on either side and also perused the entire records placed before this Court.
It is contended by the learned Counsel for the petitioner that the mere opportunity given by the respondents to cross examine the four
witnesses could not cure the defect, when those witnesses were admittedly examined in the absence of the petitioner and when the petitioner was
not notified that the enquiry would be held on 30.09.1997 and 24.10.1997.
In this regard, I have perused the entire records and also instructed the learned Government Advocate to look into the records to see whether
notice was given about the enquiry that would be held on 30.09.1997 and 24.10.1997. No notice of enquiry is found in the entire record. The
learned Counsel for the petitioner is also correct in his submission that the petitioner was on medical leave from 09.07.1997 to 21.10.1997 when
the enquiry was conducted on 30.09.1997 and 3 witnesses were examined on 30.09.1997.
The learned Government Advocate justifies the action of the respondents in holding enquiry in the absence of petitioner on the ground that the
petitioner refused to receive the charge memo stating that he would receive only when the same is served through proper channel. He has also
brought to my notice in the enquiry file relating to the letter dated 15.09.1997 stating that he would receive the charge memo when the same is
served through proper channel. However, the learned Government Advocate is not able to brought to my notice any memo directing the petitioner
to appear for enquiry on 30.09.1997 and 24.10.1997.
Admittedly, the petitioner was on medical leave from 09.07.1997 to 21.10.1997. The reasoning given by the learned Government Advocate
that the petitioner refused to receive the charge memo when the same was served in his residence and that therefore, the witnesses were examined
in his absence is not acceptable to me. When it is stated in para 4 of the reply affidavit that messages and call letters to attend the oral enquiry in
PR. 79/97 on 22.09.1997, 30.09.1997 and 24.10.1997 were sent to the applicant through the Deputy Superintendent of Police, Coastal Security
Group, Thoothukudy, the same is not found in the entire enquiry file. Therefore, there is no document to show that the petitioner was notified about
the enquiry that would be held on 30.09.1997 and 24.10.1997. Without notifying the enquiry, witnesses were examined in the absence of the
petitioner. The Enquiry Officer, the Superintendent of Police, Tirunelveli did not state anything about the service of notice on the petitioner.
Hence, the opportunity given by the respondents to cross examine the witnesses could not cure the defect. The examination of prosecution
witnesses in the absence of petitioner without any notice about the enquiry would render the entire proceedings vitiated.
Both the first and second respondents relied on PWs 2 and 3 to come to the conclusion to establish the charge made in the charge memo. The
appellate authority, namely, the first respondent herein in his order dated 10.09.1998 has stated as follows:
His above contention are not acceptable. The Enquiry Officer had to be appointed and the oral enquiry commenced prior to service of the
charge memo because he had refused to receive the charge memo. However, on his subsequent request, he was given the opportunity to cross-
examine those witnesses who were already examined in his absence and as such, there is no injustice caused to him. The motive attributed to the
three accused does not hold good because there could be no motive for the Police Constables (P.W.s. 2&3) and the A.S.P.(P.W. 5) to falsely
depose against him. The charge stands proved on sufficient and credible evidence....
Hence, heavy reliance is placed on PWs 2 and 3.
As far as P.W. 1 is concerned, admittedly he was not an eye witness. Further, he was an accused person in the double murder case. He
absconded and his bail was opposed by the petitioner. Admittedly, it is not in dispute that he remained in prison for 113 days and only thereafter,
he was able to get the bail order. Hence, his evidence could not be given much credence by the appellate authority. Furthermore, he did not give
any details in his evidence. That is, the PW1 himself admitted that he was informed by his relatives about the looting of household articles. He also
did not give any details as to the date, time and the particulars of items that were allegedly looted by the petitioner. Hence, the appellate authority
did not rely on the PW1 evidence and the evidence of PW2 and PW3 was relied on on the ground that they were posed for picketing duty at
Keelapandarapuram Village when the alleged looting took place. But, it is not so as per the records.
The General Diary produced by DW1 makes it very clear that both the PW2 ad PW3 were not posted for picketing duty. As per the General
Diary, P.W. 2 was on station duty from 27.04.1996 to 07.05.1996. Likewise, PW3 was on election duty from 27.04.1996 to 02.05.1996.
Further, PW2 admitted during cross examination that he came for picketing duty to Keelapandarapuram Village only on 06.05.1996 and on
27.04.1996, he was posted for election duty in one village called Padhaikkam. P.W. 3 has stated in chief examination itself that he was posted for
picketing duty after one week of the double murder at Keelapandarapuram village. Hence, these are all significant admissions by prosecution
witness in favour of defence. It is well settled by a catena of decisions that not taking into account the admission made by prosecution witness in
favour of defence would render the findings perverse.
The respondents are not correct in relying on the evidence of PW5 who is merely an Investing Officer. Hence, the reliance placed on by the
respondents and more particularly, the appellate authority on the evidence of PW5 to hold the charge as proved is not correct.
The learned Counsel for the petitioner has relied on a decision of the Honourable Apex Court in Anil Kumar Vs. Presiding Officer and Others,
. Paragraph 5 of the said judgment is extracted here-under:
We have extracted the charges framed against the appellant. We have also pointed out in clear terms the report of the Enquiry Officer. It is well-
settled that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the Enquiry Officer has a
duty to act judicially. The Enquiry Officer did not apply his mind to the evidence. Save setting out the names of the witnesses, he did not discuss
the evidence. He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence produced by the
appellant did not appeal to him or was considered not credit-worthy. He did not permit a peep into his mind as to why the evidence produced by
the management appealed to him in preference to the evidence produced by the appellant. An enquiry report in a quasi-judicial enquiry must show
the reasons for the conclusion. It cannot be an ipse dixit of the Enquiry Officer. It has to be a speaking order in the sense that the conclusion is
supported by reasons. This is too well-settled to be supported by a precedent. In Madhya Pradesh Industries Ltd. Vs. Union of India and Others
(UOI), , this Court observed that a speaking order will at best be a reasonable and at its worst be atleast a plausible one. The public should not be
deprived of this only safeguard. Similarly in Mahabir Prasad Santosh Kumar Vs. State of Uttar Pradesh and Others, , this Court reiterated that
satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appealed to the authority. It should
all the more be so where the quasi-judicial enquiry may result in deprivation of livelihood or attach a stigma to the character. In this case the
enquiry report is an order sheet which merely produces the stage through which the enquiry passed. It clearly disclosed a total non-application of
mind and it is this report on which the General Manager acted in terminating the service of the appellant. There could not have been a gross case of
non-application of mind and it is such an enquiry which has found favour with the Labour Court and the High Court.
The learned Counsel for the petitioner has also relied on another judgment of the Honourable Apex Court in Kuldeep Singh Vs. The
Commissioner of Police and Others, . Paras 6 to 9 of the said judgment is extracted here-under:
It is no doubt true that the High Court under Article 226 or this Court under Article 32 would not interfere with the findings recorded at the
departmental enquiry by the disciplinary authority or the enquiry officer as a matter of course. The Court cannot sit in appeal over those findings
and assume the role of the appellate authority. But this does not mean that in no circumstance can the Court interfere. The power of judicial review
available to the High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and it can interfere with the
conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by
an ordinary prudent man or the findings were perverse or made at the dictates of the superior authority.
In Nand Kishore Prasad v. State of Bihar it was held that the disciplinary proceedings before a domestic tribunal are of quasi-judicial character
and, therefore, it is necessary that the Tribunal should arrive at its conclusions on the basis of some evidence, that is to say, such evidence which
and that too, with some degree of definiteness, points to the guilt of the delinquent and does not leave the matter in a suspicious state as mere
suspicion cannot take the place of proof even in domestic enquiries. If, therefore, there is no evidence to sustain the charges framed against the
delinquent, he cannot be held to be guilty as in that event, the findings recorded by the enquiry officer would be perverse.
The findings recorded in a domestic enquiry can be characterised as perverse if it is shown that such findings are not supported by any evidence
on record or are not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of that
evidence. This principle was laid down by this Court in State of A.P. v. Rama Rao in which the question was whether the High Court under Article
226 could interfere with the findings recorded at the departmental enquiry. This decision was followed in Central Bank of India Ltd. v. Prakash
Chand Jain and Bharat Iron Works v. Bhagubhai Balubhai Patel. In Rajinder Kumar Kindra v. Delhi Admn. it was laid down that where the
findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be
rejected as perverse. It was also laid down that where a quasi-judicial tribunal records findings based on no legal evidence and the findings are its
mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands
vitiated.
Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of ""guilt
is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
Applying the law laid down in those cases, I am of the considered view that it is a case of no legal evidence in support of the charge.
The learned Counsel has also relied on the judgment of this Court in Brakes India Ltd. v. Assistant Commissioner of Labour reported in 1994
(II) L.L.N. 220 and contends that the documentary evidence must prevail over any oral evidence. That is, even assuming that if the oral evidence
of PWs 2 and 3 is against him, since the document, namely, the General Diary contains about the works that were assigned to PWs 2 and 3 on
relevant dates namely, 27.04.1996 to 30.04.1996, the oral evidence of PWs 2 and 3 should be rejected.
The learned Counsel for the petitioner is correct in his submission that the alleged confession statement of Gopal and Patturajan could not be
relied on to prove the charge against the petitioner. As rightly contended by the learned Counsel for the petitioner, the alleged confession was not
produced in enquiry. Further, neither Gopal nor Patturajan was examined in the enquiry and PW5 only spoke about the alleged confession. Even if
Gopal or Patturajan was examined, their evidence could not be relied on, as they were co-accused and their evidence should not be given
credence in the light of the observations of the Honourable Apex Court in Bhagat Ram v. State of Himachal Pradesh reported in AIR 1983 SC
Para 9 of the said judgment is extracted here-under in this regard.
The next question is whether there was negligence in performance of duty. In this connection, the Inquiry Officer has observed that the duty of a
Forest Guard is to see that the trees are felled after they are properly hammer-marked. He has further held that there is no exception to this rule
and it applies in all cases whether the trees stand on one''s private land or on Government forest land. The Inquiry Officer further found that the
appellant did not take action to stop felling of trees on which hammer mark was not affixed. The Inquiry Officer, therefore, concluded that the
appellant failed in performance of his duty and he connived with the offender in the illicit felling of trees. The defence of the appellant was that he
had sought the advice of his Block Officer Shri Duni Chand co-delinquent whether trees standing on private land could be felled without
permission and he was informed by Shri Duni Chand that spruce trees standing in one''s private land can be felled without permission. The Inquiry
Officer rejected the defence but he reached this conclusion by a method which leaves much to be desired. A joint Inquiry was proceeding against
the appellant and Shri Duni Chand. After 5 witnesses were examined on behalf of the department, the Inquiry Officer separated the Inquiry at the
request of the Presenting Officer and then called Shri Duni Chand as a witness against the appellant. In his evidence, Duni Chand adopted the
position that no such advice was sought nor was any such advice tendered. There is word of Duni Chand against word of the appellant and Duni
Chand was trying to clear himself of the charges. We are not applying standard of strict proof in a criminal case, but in that acts herein narrated
anyone discharging quasi-judicial function would have considerable hesitation in accepting the statement of Shri Duni Chand. The Inquiry Officer
further observed that at any rate even if such an advice was sought and tendered, no tree can be felled unless hammer mark is affixed on it and the
trees felled were not bearing the hammer mark and therefore, there is negligence in performance of his duty.
Therefore, I have no hesitation to come to the conclusion that there is no evidence much less legal evidence to sustain the charge. The last
submission made by the learned Counsel for the petitioner also merits acceptance. The respondents are not able to explain why the petitioner was
not made an accused in the criminal case which was instituted against Gopal and Patturajan on the same set of allegations in Crime No. 206/96.
The respondents are not able to explain why the alleged confession statement of Gopal and Patturajan was not produced in the enquiry. It is also
not explained why there is a delay of more than 10 months in entertaining a complaint and issuing a charge memo after one year. The learned
Counsel for the petitioner is well founded in his submissions that the entire action is malafide and for some extraneous reasons.
For the reasons stated above, the impugned orders are liable to be quashed. The respondents are directed to reinstate the petitioner in service
with all other consequential benefits, within a period of four weeks from the date of receipt of a copy of this order.
The writ petition is allowed on the above terms. No costs. Consequently, connected miscellaneous petition is closed.