Allowed

D. Dinakaran v. the Superintendent of Police

Madras HC4 Apr 2013WP/24113/2006

Case brief

AI extract

What is this about?

The Court allowed a writ petition quashing a police departmental charge memo. The charge was based on a criminal case in which the petitioner was acquitted. The Court held that the acquittal vitiated the foundation of the departmental inquiry, causing unnecessary harassment, and ordered the quashing of the charge memo and consequent proceedings. The acquittal in a private offense case meant there

What did the court decide?

The impugned charge memo dated 21.03.2006 issued by the Superintending Police Officer is quashed. Connected miscellaneous petitions are closed.

D. Dinakaran Vs the Superintendent of Police — Service and Employment | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED 04.04.2013

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CORAM

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THE HONOURABLE MR.JUSTICE S. TAMILVANAN

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W.P. No.24113 of 2006

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D.Dhinakaran ... Petitioner

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-vs-

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The Superintendent of Police Coimbatore Rural District Coimbatore

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The Deputy Superintendent of Police, District Crime Branch, Coimbatore ... Respondents

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Writ Petition filed under Article 226 of the Constitution of India seeking an order in the nature of certiorari, calling for the records of the respondents in connection with the impugned charge memo issued by the first respondent in Na.Ka.No.J1/PR 29/2006 dated 21.03.2006 and quash the same.

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For Petitioner : Mr.K.Venkataramani, S.C. for Mr.M.Muthappan For Respondents: Mr. R.Govindasamy, AGP

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Heard the learned senior counsel appearing for the petitioner as well as the learned Additional Government Pleader appearing for the respondents.

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The writ petition has been filed under Article 226 of the Constitution of India seeking an order in the nature of certiorari calling for the records of the respondents pertaining to the impugned charge memo dated 21.03.2006 made in Na.Ka.No.J1/PR 29/2006 on the file of the first respondent and quash the same.

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The petitioner has stated that he entered into the service as a directly recruited Grade -II Police Constable in Salem District Armed Reserve on 17.01.1986. He was promoted as Grade-I Police Constable in the year 1994, while he was serving at Ramanathapuram and he was subsequently promoted as Head Constable in the year 1999

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at Coimbatore. The petitioner has further stated that he has received 11 rewards and has not come to any adverse notice. He married one Devagi of Namakkal District, during the year 1986 and has got one son and a daughter at the age of 15 and 12 respectively, through her, on the date of filing of the writ petition.

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Mr.K.Venkataramani, learned Senior Counsel appearing for the petitioner submits that due to some misunderstanding, Devagi wife of the petitioner preferred a criminal complaint against the petitioner, based on which, a case was registered in Crime No.2 of 2005 for the offence punishable under Section 498(A), 352 IPC and Section 4 of the Dowry Prohibition Act and Section 494 and 506 Part II IPC on 03.02.2005. The petitioner has further stated that he obtained anticipatory bail on 14.03.2005 and also came out on bail. The aforesaid criminal case was registered in Crime No.2 of 2005, on the file of Podanur A.W. Police Station, Coimbatore District, was investigated and charge sheet was also filed against the petitioner before the Judicial Magistrate-VI, Coimbatore and re-numbered as C.C. No.839 of 2005. After the Trial, the case ended in acquittal, however, the respondents initiated departmental proceeding whereby two charges were framed against the petitioner that he had harassed his wife demanding dowry and living with another woman during the subsistence of the marriage with the said defacto complainant Devagi. Learned senior counsel appearing for the petitioner argued that the charge memo became ineffective in view of the acquittal recorded in the criminal case. It is further argued that the aforesaid criminal case in C.C. No.839 of 2005 is not related to the official duty of the petitioner, but only on the misunderstanding between the petitioner and his wife, she gave a complaint against the petitioner on frivolous grounds.

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Per contra, Mr.R.Govindasamy, learned Additional Government Pleader appearing for the respondents submitted that in pursuance of the issuance of charge memo, the District Superintendent of Police, Coimbatore, first respondent herein by order dated 29.05.2006, appointed Deputy Superintendent of Police, District Crime Branch, Coimbatore, as enquiry officer in C.No.J1/P.R.29/2006, under rule 3 (b) of Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules 1955 hereinafter referred to as TNPSS (D&A) Rules, against the petitioner herein and placed him under suspension on the date of the order.

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Learned senior counsel appearing for the petitioner produced a xerox copy of the judgment rendered in the case in C.C. No.839 of 2005, wherein it is seen that the petitioner herein, arrayed as an accused, was acquitted by judgment dated 20.06.2012 on the file of the Judicial Magistrate No.VI, Coimbatore for the charges levelled against him under Section 498(A) and 506 Part II of IPC, holding that he was not guilty of the offence to be convicted. The findings of the Court below was also brought to the notice of this Court. The petitioner's wife Devagi had been examined as PW1, however, as per

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the findings, she has not stated anything about the alleged illegal intimacy with another woman and no other witness was examined to establish the allegation that the petitioner was living with some other woman against law. Similarly, so far as the allegation against the petitioner demanding dowry and the other offence punishable under Section 498(A) and 506 Part II of IPC, there was no evidence to establish the same by way of adducing sufficient oral and documentary evidence. So far as the charge framed under Section 506 Part II IPC is concerned, learned Judicial Magistrate has found that the evidence adduced by PW1 and 2 was self contradictory. In fact the defacto complainant, PW1 has not stated that the petitioner had threatened her with weapon or orally so as to create fear in the mind of the said witness. On the aforesaid circumstances, the learned Judicial Magistrate was of the view that the alleged guilt against the petitioner punishable under Section 506 Part II IPC was not established by the prosecution.

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It is an admitted fact that the charge memo was issued by the respondents, only based on the criminal case registered against the petitioner and the case had been registered on the complaint given by his wife, who was examined as PW1 before the Judicial Magistrate. Learned Additional Government Pleader submitted that the criminal case ended in acquittal, cannot be a ground to drop the disciplinary proceeding initiated against any Government employee. It is not in dispute that the criminal case registered against the petitioner was not based on any offence relating to the official duty of the petitioner so as to attract provisions of the Prevention of Corruption Act. Admittedly the criminal case was registered and the petitioner was prosecuted only on the complaint given by his wife under Section 498(A) and other penal provisions of law.

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A perusal of the judgment dated 20.06.2012 in C.C. No.843 of 2005 on the file of the Judicial Magistrate No.VI, Coimbatore clearly shows that there was no evidence adduced by the prosecution or the defacto complainant to establish the charges levelled against the petitioner either under Section 498(A) and Section 4 of Dowry Prohibition Act or under Section 506 part II IPC to convict him under the said provisions of law, hence, the Court below recorded acquittal. The departmental proceeding is based on the criminal case registered against the petitioner, hence, the departmental proceeding has no legs to stand independently.

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In this regard, learned Senior Counsel appearing for the petitioner relied on a decision in P.Chinnadurai vs The Inspector General of Registration, Chennai-28 reported in 2012 (2) CTC 145, relying various decisions, this Court (VDPJ) held that the charge memo relating to the said writ petition was not sustainable in law as the petitioner got hon'ble acquittal in the criminal case and accordingly, the same was quashed. In M.Paul Anthony v. Bharat Gold Mines Ltd., 1999 (2) CTC 579 (SC), the Hon'ble Supreme Court has ruled that when there is a hon'ble acquittal of an employee during

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the pendency of the departmental proceeding, the same is required to be taken note of.

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In S.Natchathram v. The Superintendent of Police, Madurai District, Madurai, 2011 (3) LLN 318 (Madras), it has been held as follows:

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"27. .... 28. Though Courts have consistently held that quashing or setting aside the charge, at the threshold is generally not permissible, there is no hard rule that in every case, where disciplinary action is initiated, the charged official should undergo the ordeal of facing the enquiry and ultimately, if any punishment is imposed, he should challenge the same in the manner known to law. It is well known that the purpose of initiation of the departmental action is to award a suitable punishment for the alleged misconduct. In the case on hand, the alleged misconduct is involvement of the petitioner in a criminal case in Crime No.50 of 1990 on the file of the learned Judicial Magistrate No.IV, Madurai. When the First Information Report registered against the petitioner itself has been found to be unsafe to proceed further and when the criminal court has categorically found that there was no evidence for demand of dowry, no useful purpose would be served in conducting an enquiry against the petitioner. On the other hand, as rightly contended by learned counsel for the petitioner, it would be unnecessary harassment for the petitioner to undergo the ordeal. On the facts of this case, this Court is of the considered view that mere involvement of the petitioner in the First Information Report, which has been found to be unreliable and unsafe, cannot be a subject matter of departmental proceedings and therefore, the second count of charge also falls to the ground."

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In G.M. Tank v. State of Gujarat, reported in 2006 (3) CTC 494 (SC), the Hon'ble Apex Court has held as follows:

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"6. The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue. This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal Court. Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its direction (discretion) in anyway fettered."

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It has been categorically held by the Hon'ble Supreme Court in Paul Anthony's case that a hon'ble acquittal in a criminal case, has relevancy in favour of the employee facing departmental enquiry. It cannot be disputed that in any criminal case, the prosecution should establish the guilt of an accused beyond reasonable doubt whereas in departmental proceeding, the alleged delinquency of an employee need not be proved beyond reasonable doubt, even preponderance of probability is sufficient to establish the delinquency.

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Learned Additional Government Pleader appearing for the respondents submitted that the petitioner is working in the uniformed service and therefore, the police department has to maintain utmost discipline, even in case of acquittal, in favour of an employee, there is no legal bar for the respondents to proceed with the departmental enquiry. In the instant case, departmental enquiry was initiated based on the complaint given by the wife of the petitioner/defacto complainant and strictly speaking there is no direct bearing on the official duty of the petitioner, however, based on the arrest in connection with the alleged offence and the charge memo was issued on the petitioner. Though he was suspended, he was later on re-instated in service. On the aforesaid circumstances, the alleged offence is not directly connected with the petitioner's official duty and the finding the learned Judicial Magistrate has categorically held that the prosecution has not established the guilt against the petitioner by adducing any evidence. Therefore, it has to be construed only as a hon'ble acquittal. It being a private offence not related to the official duty of the petitioner, the respondents cannot proceed with the departmental proceeding, ignoring the acquittal recorded in the case which is not directly related to the official duty of the petitioner.

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This Court (K.N.Basha, J.) in the order dated 20.03.2012 passed in W.P. No.19704 of 2011 has held as follows:

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"11. The last but not the least factor to be borne in mind of this Court is that one of the co-delinquent, viz., one Dhasarathan, has been exonerated in the departmental proceedings in respect of charge No.3, holding that the charges levelled against him have not been proved. Therefore, it is crystal clear that the department is not having any other evidence or materials apart from the evidence adduced in the criminal case and as such, subjecting the petitioner to undergo the ordeal of the departmental proceedings would be certainly unfair and unreasonable."

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As decided by the Hon'ble Supreme Court in Paul Antony's case (1) a hon'ble acquittal is the term applicable, when there is no legal evidence to convict an accused (2) when the accused is

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acquitted even without providing benefit of doubt in his favour (3) similarly if the yardstick of preponderance of probability is applied, based on the evidence adduced in the criminal case and which is not related to the official duty of the delinquent/accused. On the said circumstances, acquittal has to be construed as a hon'ble acquittal.

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It is crystal clear that the petitioner was acquitted as there was no legal evidence available to convict the petitioner in the criminal case and it is seen that the petitioner herein was not acquitted by providing benefit of doubt in favour of the petitioner/ accused. Hence the acquittal recorded by the Judicial Magistrate, which has reached finality has to be construed as hon'ble acquittal.

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After the acquittal of the petitioner in the criminal case registered against him, based on the complaint given by his wife, there is no possibility to adduce further evidence in the departmental proceeding to establish the alleged delinquency. The departmental proceeding was initiated by the respondents only based on the criminal case registered on the complaint given by the wife of the petitioner which ended in hon'ble acquittal. On the aforesaid facts and circumstances, nothing survives against the the petitioner, hence, he need not face the ordeal of the departmental proceeding. Therefore, this Court has no hesitation to quash the impugned department proceeding initiated against the petitioner, in view of the hon'ble acquittal recorded by the Judicial Magistrate in C.C. No.839 of 2005 which has admittedly reached finality.

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In the result, the Writ Petition is allowed and the impugned charge memo issued by the first respondent in Na.Ka.No.J1/PR29/ 2006 dated 21.03.2006 is quashed. No order as to costs. Consequently, connected M.Ps are closed.

Sd/ Asst. Registrar

/True Copy/

Sub Asst.Registrar

vga