- (1.) THE writ petition is filed challenging the order of the second respondent dated 22.06.2006 as confirmed by the first respondent dated 19.09.2006 and with a direction to the second and third respondents to permit the petitioner to serve as Inspector of Police with all consequential benefits.
(2.) THE petitioner was appointed as Grade-I Police Constable on 01.02.1972 and promoted as Head Constable in 1979 and subsequently, promoted as Sub-Inspector of Police in 1983. THE petitioner was suspended by the second respondent while he was holding as Inspector on 11.05.2006. In the meantime, the second respondent has issued a charge memo to the petitioner on 12.05.2005 which is as follows: "1. Failure to register a case of cognizable nature when it was reported to him on 20.02.2005 @ 2000 hrs by Tr.K. Sureshraj S/o Tr. Krishnaraj, Nadu Street, Arulavadi village Arakandanallur Police Station limit. 2. Having registered the F.I.R. antedated after the complaint was given to Inspector General of Police, North Zone and instructions were issued by him on 24.02.2005 directing some other Inspector to register a case and investigate and thereby attempted annul the instructions of Supervisors. 3. Dereliction of duty by having registered this case of a pure professional house burglary by night in Arakandanallur P.S.Cr.No.87/05 as a N.P. Case with intention to avoid the crime review and crime statement etc., 4. Highly reprehensible conduct in having destroyed the F.I.R.in Cr.No.87/05 registered u/s 4(1) Cr.P.C. And replaced it by another F.I.R. Containing offence u/s 457, 380 IPC (NP) IPC. 5. Highly reprehensible conduct in having lost the counter foil of the arrest Card No.279, in A.K. Nallur P.S.Cr.Nos.88/05 and 89/05 u/s 41(1) Cr.P.C., the number which was shown in F.I.R. Index Register. 6. Highly reprehensible conduct in having destroyed and replaced the G.D. Of Arakandanallur P.S. Dated 20.02.2005 with assistance of HC 736 Shanmugam and thus attempted to Burk the vital records of the station and also lost the G.Ds. Dated 21.02.2005 and 22.02.2005 of Arakandanallur P.S." The third respondent was appointed as Enquiry Officer and after examination of 9 witnesses and marking as much as 13 documents and examining the witnesses produced on the side of the petitioner numbering 3 and also marking various documents the Enquiry Officer has submitted his explanation. The petitioner has also submitted his representation by way of written statement on 24.02.2006. The second respondent having accepted the report of the Enquiry Officer, the third respondent, by an impugned order dated 22.06.2006, has awarded the punishment of reduction in rank by one stage for a period of three years to be spent on duty. The petitioner has preferred an appeal against the order of the second respondent to the first respondent on 26.06.2006. Since the appeal was not disposed of, the petitioner has challenged the order of punishment imposed by the second respondent in W.P.No.21053 of 2006 and this Court by an order dated 05.07.2006 has directed the first respondent before whom the appeal was filed to dispose of the appeal. It was subsequently, the first respondent has passed the impugned order dated 19.09.2006 rejecting the appeal. The first respondent being the appellate authority, after extracting the charges, has passed the following order: "2. The Inquiry Officer (Viz.) the Additional Supreintendent of Police, PEW. Cuddalore who conducted the oral Inquiry has held the charge as proved in the minutes first cited. 3. Agreeing with the findings of Inquiry Officer in holding the charge as proved the punishing authority (Viz.) the Deputy Inspector General of Police, Villupuram Range has imposed the punishment of "Reduction in rank by one stage for a period of three years to be spent on duty" on the delinquent vide his order 2nd cited. 4. He has now submitted an Appeal petition dated 26.06.2006 to cancel the punishment imposed on him. The appeal petition is within the time limit. 5. I have gone through the appeal petition and connected records carefully. The contention of the petitioner is not accepted. No new points have been furnished by the delinquent. His appeal petition is considered and rejected." The orders of the second respondent and also the subsequent order of the first respondent are challenged on various grounds including that as far as the order of the appellate authority dated 19.09.2006, the same is against in violation of Rule 6 of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules. That apart, the petitioner has also challenged the procedure followed by the Enquiry Officer while examining the witnesses, inasmuch as the Enquiry Officer has not elucidated any question to prove each counts of the charge and not treated them aspired. According to the petitioner, the Enquiry Officer's report itself is based on non-application of mind. The petitioner has also placed reliance on judgment of the Hon"ble Apex Court reported in 2006(4) Supreme 578, wherein, on the basis of the non-application of mind to the representation made by the employees to show-cause, while setting aside the order of the High Court directing reinstatement with the continuity of service, the Hon"ble Apex Court has remitted the matter for fresh disciplinary action on the basis of the materials already on record. The petitioner has also relied upon the judgment of this Court reported in 2003(3) MLJ 191 wherein when proceedings were not initiated against 28 other similarly situated persons involved in the same incident of misconduct, the order of punishment imposed against one person was set aside. Further, it is the case of the petitioner that the appellate authority ought to have applied its mind and passed orders by giving reasons. The petitioner has also alleged bias against the Enquiry Officer, since the report is without any proper reasons. That apart, it is the case of the petitioner that there was absolutely no evidence against the petitioner and in spite of it, the Enquiry Officer has submitted his report and there was no reasonable opportunities given to the petitioner to defend his case.
(3.) EVEN though, no counter affidavit has been filed on behalf of the respondent, Mr. Sreenivasan learned Government Advocate has made his submission on instruction. Mr .P. Jayaraman learned Senior Counsel appearing for the petitioner would submit that the petitioner has an excellent carrier in the police department and he was rewarded earlier for his work and he has only 3 years of service before attaining superannuation and in these circumstances, the present order of punishment imposed by the second respondent as confirmed by the first respondent are not only against the rules but also against the basic principle of law. The learned counsel has raised a legal point that the charge memo itself is vitiated, since it has been built up without any foundation and without explaining any specific violation of rules. He would also submit that even assuming that the charges have some basis, the conduct of the petitioner has always been bona fide. He would submit by quoting the wordings of the counter affidavit filed by the respondents in another case filed by the petitioner in respect of different charges stating that the petitioner had to leave instruction to subordinates after the visit in the scene of crime, since he had to appear before this Court in H.C.P.No.15 and 35 of 2005 and therefore it was bona fide. He would also submit that the charge memo issued in a premature stage. That apart, the procedure followed by the Enquiry Officer was not proper especially by examining P.W.1 to P.W.9 with regard to proof of charges. The defense witnesses were not treated as interested witnesses and the official document was not disowned by the Enquiry Officer by referring to Section 114 of the Evidence Act. ;