The Commandant vs C. Francis

N. Paul Vasanthakumar, J.—Heard the submissions of Mrs. A. Sri Jayanthi, learned Special Government Pleader appearing for the appellant and Mr. K. Venkataramani, learned Senior Counsel appearing for the respondent.

This writ appeal is filed against the order made in W.P. No. 7470 of 2007, dated 29.9.2009, wherein the respondent has prayed to set aside the order of dismissal passed against him in F1/P.R. No. 23/2001, dated 17.1.2002 and for a direction to reinstate the respondent into service and to grant him all consequential service and monetary benefits. The said writ petition was allowed by the learned single Judge and aggrieved over the same, the appellant department has filed this appeal.

Facts leading to the filing of the writ petition was that the order of dismissal dated 17.1.2002 was challenged by the respondent originally by filing O.A. No. 741 of 2002 before the Tamil Nadu Administrative Tribunal, Chennai contending that the respondent joined the services as Grade-II Police Constable on 15.4.1997 in the Tamil Nadu Special Police VIII Battalion, Veerapuram, Avadi, Chennai and he was sent on deputation to serve in the Special Police Battalion, New Delhi in March, 1999, however, he did not join duty at New Delhi. Therefore, he was declared as a deserter and a charge memo was issued for desertion on 04.1.2000 in P.R. No. 32/1999 alleging that from 01.5.1999 onwards the respondent did not attend the duty without any prior permission. Enquiry was conducted in respect of the said desertion and the respondent was dismissed from service on 19.2.2000. Against the said order of dismissal dated 19.2.2000, the respondent has preferred an appeal before the Deputy Inspector General of Police, Armed Police, Chennai and the said appeal was partly allowed by an order dated 05.9.2000, modifying the punishment to that of postponement of increment for a period of one year without cumulative effect. Thereafter, the respondent was reinstated into service immediately. After reinstatement, the respondent, involved in a criminal case in Crime No. 970 of 1999 on the file of E-3, Korattur Police Station under Section 302 I.P.C. for allegedly murdering one Masilamani on 09.8.1999 and the respondent was imprisoned as under-trial prisoner. The appellant department has conducted an enquiry by issuing a charge memo dated 29.11.2001. The translation of charge as well as details of the charge reads as follows:-

PC 963, Francis ''G'' Coy (Ty. Suspension), when you are in TSP VIII Battalion, New Delhi, during desertion period, involved in E3 Korattur Police Station, Crime No. 970/99 u/s. 302 IPC with your friends in connection with murder of one Masilamani, of II Main Road, Korattur, Chennai at 09.00 hours on 09.8.1999.

The details of Charge:

It is revealed from the enquiry that you, Francis, Batallion Constable 963, ''Coy. G'' (under temporary suspension), while working in the VIII Batallion of Tamilnadu Special Police, had deserted and during that period, you had come to your native place Parangimalai (St. Thomas Mount) at Chennai, and entered into a criminal conspiracy with your friends namely, Chelladurai S/o. Chandran, residing at No. 3, Pachaiyappan colony first street, Pallavaram, and Raja @ Kamaraj of Tambaram and intercepted one Masilamanil, husband of Bindu, who was riding his motorcycle via II street, Korattur, at about 9.00 P.M. on 9.8.99 and all three together cut him with knife, causing his murder and absconded; thus a case had been registered against the said three persons by E-3 Korattur Police in Crime No. 970/99 for an offence punishable U/s. 302 IPC on 11.8.99, causing their arrest, and based on the statements of three of them, the complainant, Bindu was also arrested on 12.8.99 and all of them were produced before the District Munsif cum Judicial Magistrate, Ambattur, and remanded to judicial custody for 15 days. Apart from that, you have undergone imprisonment in the Central Prison, Chennai for 3= months and on condition bail for 2= months in ambattur.

You, being a constable in the responsible Police Department, during the period of desertion, had not only absented from duty without intimation, but also suppressed the details/information about your involvement along with your friends in the murder of one Masilamani, criminal case prosecuted against you and the imprisonment undergone by you, and did not inform the same to the office of your employer; and such indisciplinary and criminal act of yours is the charge against you.

Enquiry was conducted for the said charge and the respondent was dismissed from service by an order dated 17.1.2002. The respondent challenged the said order of dismissal before the Tamil Nadu Administrative Tribunal by filing O.A. No. 741 of 2002 and obtained an order of interim stay and by virtue of the same, the respondent was reinstated into service on 04.7.2002. Thereafter, the said O.A. was transferred to this Court and taken on file as W.P. No. 7470 of 2007 after the abolition of the Tamil Nadu Administrative Tribunal. The respondent was acquitted from the criminal case, which was tried as Sessions Case No. 336 of 2000 on the file of Additional District and Sessions Judge, Fast Tract Court No. I, Chengalpattu, by judgment dated 28.3.2002 holding that the prosecution has not proved the case beyond reasonable doubt about the commission of the offence by the respondent as alleged in the charge sheet. Based on the said acquittal in S.C. No. 336 of 2000, the learned single Judge allowed the writ petition filed by the respondent.

The learned Special Government Pleader appearing for the appellant has submitted that even though the charge memo dated 29.11.2001 issued to the respondent is for involvement in a criminal case and for murdering one Masilamani, which resulted in registering the case in Crime No. 970 of 1999 under Section 302 I.P.C. on the file of E-3, Korattur Police Station and even if the Criminal Court, after trial, acquitted the respondent by giving benefit of doubt, the allegation of involvement of the respondent in a criminal case, is still subsistence and the same cannot be disputed, as the respondent was subjected to trial and was acquitted by the Sessions Court. Therefore, the order of the learned single Judge in setting aside the dismissal without giving further liberty to the appellant, is not proper and atleast the appellant should have been granted liberty to consider the said issue regarding involvement of the respondent in the criminal case thereby causing disrespect to the police force.

The learned Senior Counsel appearing for the respondent submits that the Criminal Court having acquitted the respondent after a regular trial, the learned single Judge was justified in allowing the writ petition and the respondent is serving pursuant to the interim stay granted by the Tamil Nadu Administrative Tribunal from 04.7.2002.

We have considered the rival submissions and also perused the materials available on record.

The respondent was a deserter from appellant''s force from 01.5.1999 and earlier, he was proceeded departmentally and punishment of dismissal was imposed on 19.2.2000. On appeal, the said order of dismissal was modified to that of postponement of increment for one year without cumulative effect by the Deputy Inspector General of Police, Armed Police, Chennai, by an order dated 05.9.2000 and based on the said order, the respondent was reinstated into service. Thereafter, the respondent while serving in New Delhi, has come over to Chennai and allegedly involved in a criminal case resulting in registering of criminal case in Crime No. 970 of 1999 on the file of E-3, Korattur Police Station for the alleged murder of one Masilamani on 09.8.1999. After charge sheet was filed, the Sessions Court, even though, after trial, acquitted the respondent by giving benefit of doubt, the fact about the case registered against the respondent, who has been arrayed as Accused No. 3 in S.C. No. 336 of 2000, is not disputed by the respondent. Hence, the learned Special Government Pleader is justified in seeking to remit the matter to the appellant for reconsideration of the punishment already imposed against the respondent, atleast for the respondent''s involvement in the said criminal case. As the respondent is serving for the past over 12 years by virtue of the interim stay granted by the Tamil Nadu Administrative Tribunal as well as the order of the learned single Judge, we are not inclined to set aside the order of the learned single Judge in toto.

In such view of the matter, the order of the learned single Judge in W.P. No. 7470 of 2007, dated 29.9.2009, is modified and the matter is remitted to the appellant only to consider the charge about the involvement of the respondent in a criminal case, referred above and pass appropriate lesser punishment in accordance with law. The said exercise is directed to be completed by the appellant, within a period of three months from the date of receipt of a copy of this judgment. The writ appeal is disposed of, as stated above. No costs. Consequently, M.P. No. 1 of 2012 is closed.