- (1.) W.P.No.3990 of 2014 has been filed challenging the legality of the charge memo dated 28.09.2013, issued to the petitioner herein by the first respondent. W.P.No.3510 of 2015 has been filed challenging the appointment of the Inquiry Officer, vide G.O.Ms.No.901, Home (SC) Department dated 03.12.2014 passed by the first respondent. Since the facts are interwined, all the writ petitions are disposed of by this common order.
(2.) Facts leading to the filing of these writ petitions, briefly narrated, are as follows: 2.1. The petitioner in the affidavit filed in support of these writ petitions would aver that he was initially appointed by direct recruitment as Deputy Superintendent of Police Category-I through Tamil Nadu Public Service Commission [TNPSC] and he joined the said post during 1998 and promoted as Additional Superintendent of Police, in the year 2006 and to the rank of Superintendent of Police, in the year 2008. According to the petitioner, he is rendering sincere, efficient and unblemished service to the satisfaction of higher officials and consistently awarded outstanding ratings in his Annual Confidential Reports [ACRs] and also earned various letters of appreciation and commendation from various superior officers and as such, he is fully qualified and eligible for being considered for appointment by promotion as a Member of Indian Police Service [IPS]. 2.2. The petitioner would further state that to his shock and surprise, he was issued with the impugned charge memo dated 28.09.2013, signed on 10.10.2013, by the second respondent, namely Additional Director General of Police (Admn.), Chennai-4 and the contents of the charges are as follows: "Count 1: Reprehensible conduct in having abused Thiru.R.Samy, M.L.A., Melur Constituency, Madurai District and his followers, used force against them by way of lathi charge and foisted a case against them in Koodakovil P.S. Cr.No.155/08 u/s.14, 148, 353, 307 r/w.149 IPC & 3 of TNPPDL Act, during their return after Thirumangalam Bye-Election campaign on 29.12.2008 at Periyar Aalankulam. Count 2: Neglect of duty in not having taken the injured to the hospital before the remand on 30.12.2008." 2.3. The petitioner would further aver that there is an inordinate and unexplained delay of nearly 5 years for initiation of disciplinary proceedings from the date of alleged occurrence i.e., 29.12.2008 and the impugned charge memo came to be issued based on the complaint given by Thiru R.Samy, Member of Legislative Assembly [MLA] of Melur Constituency, Madurai District, who is also an accused in Koodakovil P.S. Cr.No.155/2008 for the commission of offences under Sections 147, 148, 353, 307 r/w. 149 IPC and Section 3 of The Tamil Nadu Public Property (Prevention of Damage and Loss) Act. The petitioner would further aver that he took charge as Superintendent of Police, Madurai Rural District on 25.05.2008 as Thiru Veerakathiravan, then sitting MLA of Thirumangalam Constituency died and therefore, bye-election was announced to elect a member in the vacancy caused on account of his demise and with regard to the election campaigns undertaken by the candidates contesting in the election as well as their leaders, VIPs etc., arrangements have been made to maintain law and order and hectic election campaign was done by all political parties for the purpose of ensuring their victory. 2.4. It is further stated by the petitioner that on 29.12.2008, around 9.00 p.m., cadres belonging to All India Anna Dravida Munnetra Kazhagam [AIADMK] numbering about 100 led by Thiru O.Panneerselvam, Thiru Sengottaian, Thiru Pollachi Jayaraman, Thiru R.Samy, MLA, Melur Constituency and about 100 others had assembled at Kanniah Thottam, Aruppukottai Road and they abused the police personnel with filthy and unparliamentary language and also shouted slogans against him. Woman Sub-Inspector of Police, Koodakovil Police Station, Inspector of Police, Avaniapuram Police Station and their team enquired about the reasons for their demonstration and at that time, the mob turned violent and started attacking police personnel by throwing stones and started attacking with deadly weapons and iron rods and also threw stones on police vehicles and they also chased the Woman Sub-Inspector Tmt.Sathyapraba of Koodakovil Police Station and Inspector Ramakrishnan of Avaniapuram Police Station and some of the police vehicles were also damaged. 2.5. The above said police officials in order to protect themselves from the mob, took shelter in a tea stall and informed the superior officers which include the petitioner. One of the Inspectors of Police also left the place, leaving the police vehicle on the spot and on hearing the said alarming information through police wireless, Thiru Sundaresan, Deputy Superintendent of Police, Thiruparankundram Sub Division rushed to the spot to control violence and intercepted the vehicle in which Thiru R.Samy, MLA of Melur Constituency and others were travelleing and on search, the vehicle was found carrying deadly weapons and when they were questioned, the Deputy Superintendent of Police, Thiruparankundram was forcibly pushed down by Thiru R.Samy, MLA and his accomplice also threatened him with dire consequences. The Deputy Superintendent of Police informed the situation over police wireless and on hearing the same, the petitioner rushed to the spot along with striking force, however, Thiru R.Samy, MLA and his followers did not heed to his warnings and continued to attack the police and with much difficulty, the situation was controlled. 2.6. The persons indulged in violence and other criminal activities were secured. Thiru S.S.Krishnamoorthi, IPS, then Deputy Inspector General of Police also arrived at the spot and made enquiries about the incident and on his directions, secured persons were handed over to Thiru Balaji, jurisdictional Inspector of Police with instructions to take follow up action and to proceed in accordance with law. Accordingly, a case in Crime No.155/2008 was registered by the Inspector of Police, Koodakovail Police Station for the commission of offences on the basis of complaint given by Tmt.Sathyapraba, Woman Sub-Inspector of Koodakovil Police Station. The petitioner, in this regard, has also sent messages to all the officers including the Chief Electoral Officer, District Collector, Deputy Inspector General of Police, Madurai Range, Inspector General of Police, South Zone, Additional Directors General of Police, Intelligence, Law and Order and the Director General of Police, Tamil Nadu on the incident occurred and the action taken. The arrested accused including Thiru R.Samy, MLA were produced before the Judicial Magistrate, Thirumangalam on 30.12.2008 by Thiru R.Balaji, Inspector of Police, Thirumangalam Taluk and Thiru Shahjahan, Deputy Superintendent of Police, Thirumangalam Sub Division and all the accused were remanded to judicial custody for 15 days. At the time of remand, the accused persons induced by Advocates, stated before the Judicial Magistrate that police personnel caused injuries and no food and drinks were given and some of them were not given proper medical treatment. 2.7. The petitioner would further state that even at that time, there is no specific allegation levelled against him for having been responsible for causing injuries to the arrested persons. The petitioner, after receipt of the charge memo, submitted a detailed representation dated 23.10.2013, narrating the above mentioned facts and requested the first respondent to consider the same in proper perspective and to drop all further proceedings. However, it failed to evoke any kind of response and on the other hand, a charge memo has been issued to create an impediment and infringe his right to be considered for appointment by promotion as a member of All India Service, namely Indian Police Service. The petitioner would further aver that the case in Crime No.155/2008 registered by Koodakovil Police Station, after investigation, has culminated into a charge sheet, which was taken on file by the Court of Judicial Magistrate, Thirumangalam in P.R.C.No.30 of 2010 and the same is pending for committal to the Court of Principal Sessions Judge, Madurai. 2.8. Thiru R.Samy, MLA of Melur Constituency has also lodged a private complaint against the petitioner, Thiru Shahjahan, Deputy Superintendent of Police, Thiru Ramakrishnan, Inspector of Police and Tmt.Sathyapraba, Woman Sub-Inspector of Police, who was the first informant in the above said crime number, on the file of the Court of Judicial Magistrate, Madurai under Section 294(b), 341, 342, 323, 325, 195, 506(ii) and 427 IPC and violation of Human Rights Act and it was also committed to the Principal Sessions Court at Madurai and taken on file in Special S.C.No.1/2011. The petitioner filed an application for discharge and it was dismissed by the Principal Sessions Judge, Madurai, vide order dated 23.01.2013 and challenging the same, Crl.Rc.(MD).No.146 of 2013 was filed before the Madurai Bench of this Court and it was dismissed on 07.08.2013 and challenging the legality of the same, Special Leave to Appeal (Criminal) No.9160 of 2013 was filed by him and the Hon'ble Supreme Court of India, vide order dated 29.11.2013, granted stay of further proceedings in Special SC.No.1/2011. 2.9. In W.P.No.3510 of 2015, the petitioner has challenged the appointment of Inquiry Officer to conduct inquiry in respect of the above said charge memo issued against him on the ground that when the Selection Committee for appointment was likely to be convened, the Government of Tamil Nadu, represented by Principal Secretary to Government had issued G.O.Ms.No.901, Home (SC) Department dated 03.12.2014 appointing Thiru Abhay Kumar Singh, IPS as the Inquiry Officer to conduct inquiry and the said officer, in-turn acted in a haste manner and without any application of mind to the fact that the matter is subjudice in W.P.No.3990 of 2014, vide proceedings dated 16.12.2014 issued summons to him to attend oral inquiry on 23.12.2014 and 24.12.2014. The petitioner, in response to the said summons, had submitted a representation dated 18.12.2014 by bringing to their notice about the pendency of W.P.No.3990 of 2014 and prayed for furnishing of copies of various documents. The Inspector General of Police, South Zone, vide Fax Message dated 22.12.2014, directed the petitioner to peruse the documents and attend the enquiry on 23.12.2014 and on receipt of the same, the petitioner submitted a representation dated 22.12.2014 requesting the said official to defer the enquiry. The Inspector General of Police, South Zone, Madurai, vide proceedings dated 07.01.2015, directed the petitioner to attend oral enquiry on 12.01.2015 and 13.01.2015 respectively without considering his representation. 2.10. The petitioner, on perusal of relevant documents, became aware of the fact that the Inspector General of Police, South Zone, Madurai himself, vide proceedings Endst.No.214/Camp/Ptn./IGP-SZ/2013 dated 30.07.2013, had directed the Superintendent of Police, Madurai District to conduct a personal enquiry and report the matter to him on the complaint given by Thiru R.Samy, MLA of Melur Constituency. Therefore, it is contended that the Inspector General of Police, South Zone, has already assumed the role of prosecutor for the reason that as per his directions, preliminary enquiry has been conducted by the Deputy Superintendent of Police on the complaint given by Thiru R.Samy, MLA and therefore, he cannot act as the Inquiry Officer. The petitioner also submitted a representation dated 09.01.2015 to the first respondent narrating the above facts and events especially with regard to the role played in appointing the Superintendent of Police, Madurai District to conduct preliminary enquiry and was under the bonafide impression and belief that further proceedings would be deferred. However to his shock and surprise, the Inspector General of Police, South Zone, Madurai has urgently proceeded with the enquiry and therefore, came forward to file this writ petition, challenging his appointment in W.P.No.3990 of 2014. 2.11. The second respondent, namely the Additional Director General of Police, Administration, Chennai-4, has filed a counter affidavit stating among other things that disciplinary proceedings were initiated against the petitioner based on the preliminary enquiry report submitted by Thiru V.Balakrishnan, IPS, then Superintendent of Police, Madurai District, based on the complaint given by Thiru R.Samy, MLA of Melur Constituency. It is further stated in the counter affidavit that Thiru R.Samy, MLA has also filed a private complaint against the petitioner and three others before the Chief Judicial Magistrate, Madurai which was committed to the Principal Sessions Court, Madurai and the petitioner filed a petition for discharge in Crl.M.P.No.1215 of 2013 and it was dismissed on 23.01.2013. The petitioner made a challenge by filing a revision in Crl.R.C.(MD).No.146 of 2013 and it was dismissed on 07.08.2013 and challenging the same, the petitioner filed a Special Leave Petition in SLP(Crl.)No.9160 of 2013 and the Hon'ble Supreme Court of India has granted interim stay of further proceedings, vide order dated 29.11.2013. The second respondent would further state in the counter affidavit that Thiru R.Samy, MLA of Melur Constituency, has submitted a representation/complaint stating that the petitioner used unparliamentary words and charged him aggressively and he has also manhandled him and attacked the party cadres and also caused injuries to many of the party cadres and later on they were taken to a marriage hall and were arrested and the injured were not given any medical treatment and also food till next day morning viz., 30.12.2008 and they were produced before the learned Judicial Magistrate, Thirumangalam and they made a complaint, which was also recorded and orders were passed by the learned Magistrate directing to provide them medical treatment. The complaint given by Thiru R.Samy, MLA was enquired into by Thiru V.Balakrishnan, IPS and after conducting enquiry, he submitted his report in which the statement of Thiru R.Samy, MLA was enclosed and found that disciplinary proceeding was rightly initiated against the petitioner by issuing the charge memo. It is also stated by the second respondent that the contents of the charge memo are very serious in nature and with regard to the delay in initiating departmental proceedings, it is averred that the misconduct of the petitioner came to light only as a result of preliminary enquiry conducted by the above said officials and during the course of preliminary enquiry, witnesses were also examined and the learned Judicial Magistrate, while producing the accused, also recorded their statement that they were not given food, drinks and medical treatment and passed necessary orders to provide them with necessary facilities and after fair and proper appraisal of report only, disciplinary proceedings came to be initiated. 2.12. The second respondent, on legal plea, would submit that the Court at the stage of charge memo, cannot interfere with the same and that simultaneously it is permissible to initiate departmental as well as criminal prosecution and therefore, the petitioner cannot have any grievance and therefore, prays for dismissal of this writ petition. Additional counter affidavit has also been filed by the second respondent in W.P.No.3990 of 2014 and would state that pendency of W.P.No.3990 of 2014, Joint Secretary, Public (Law and Order - C) Department in D.O. Letter No.117/L&O-C/2014-1 dated 07.01.2014 instructed the Collector of Madurai District to obtain legal opinion as to whether the case registered in Koodakovil Police Station Cr.No.155 of 2008 in P.R.C Nos.30/2010 and 17/2014 is fit for withdrawal in public interest under Section 321 CrPC. The Public Prosecutor, Madurai District, in his opinion dated 31.01.2014 in P.R.C.No.30/2010 opined that it is not a fit case for prosecution and it may not withstand stiff cross examination of defence and therefore, on the ground of public interest and in the interest of administration of justice, recommended for withdrawal of the prosecution under Section 321 CrPC. The Assistant Public Prosecutor Gr.I/Additional Chief Judicial Magistrate (E.O), I/c of Judicial Magistrate, Thirumangalam had also expressed the same view in his opinion dated 08.07.2014 and accordingly, the Collector of Madurai District sent a proposal to the Additional Secretary to Government, Public (Law & Order -C) Department, Secretariat, Chennnai, requesting for withdrawal of the above said case and the Government, after consideration, had issued orders in G.O.(Ms.)No.2526, Public (Law & Order-C) Department dated 02.07.2014 and G.O.(Ms.)No.2802, Public (Law and Order-C) dated 21.07.2014 for withdrawal of the case in Koodakovil Police Station Cr.No.155/2008 in P.R.C.Nos.30/2010 and 17/2014, pending on the file of the learned Judicial Magistrate, Thirumangalam, based on which necessary applications were filed before the Court and the Court has also permitted the prosecution to withdraw the cases. 2.13. The petitioner has also filed a rejoinder to the counter affidavit and would submit that the case in Cr.No.155/2008 registered against Thiru R.Samy and others, after investigation, has resulted in filing of the final report, which was taken on file in P.R.C.No.30/2010 and later on split up as P.R.C.No.17/2014, as some of the accused did not choose to appear before the Court. It is further averred that though the case was posted on several times on several dates, the accused repeatedly filed petitions under Section 317 CrPC to dispense with their personal appearance and it was also entertained. Insofar as the stand of the second respondent as to the withdrawal of prosecution, it is submitted by the petitioner that the proposal for withdrawal of prosecution is not in accordance with Section 321 CrPC and in any event, pending disposal of W.P.No.3990 of 2014, such a step should not have been resorted to and without due and proper application of mind, the case was permitted to be withdrawn.
(3.) Mr.M.Ravi, learned counsel appearing for the petitioner in both the writ petitions would submit that there is an inordinate and unexplained delay in initiation of departmental proceedings as the incident relating to the case in Crime No.155/2008 happened on 29.12.2008 and the case after investigation, culminated into a charge sheet, which was taken on file in P.R.C.No.30 of 2010 by the learned Judicial Magistrate, Thirumangalam and nearly after 5 years, based on the representation given by one of the accused, namely, Thiru R.Samy, MLA of Melur constituency dated 28.09.2013, signed on 10.10.2013, preliminary enquiry was conducted based on which, charge memo came to be issued when the petitioner ranked as Sl.No.2 for the selection for appointment to Indian Police Service, subject to clearance of disciplinary proceedings. It is the further submission of the learned counsel appearing for the petitioner that even for the sake of arguments, the preliminary enquiry report submitted by Thiru V.Balakrishnan I.P.S., then Superintendent of Police, Madurai District is unacceptable, still no case has been made out for launching departmental action and though allegations were levelled against the petitioner and other officials such as Deputy Superintendent of Police, Inspector of Police and others, they have not been proceeded departmentally and only the petitioner has been singled out, that too when he has been selected to join in Indian Police Service in the select list for the year 2013. It is the further submission of the learned counsel appearing for the petitioner that unfortunately the second respondent who ordered preliminary enquiry, became the Inquiry Officer and the timing of the disciplinary proceedings would indicate that the sole intention/attempt is to prevent the petitioner from entering into Indian Police Service in the select list for the year 2013 and that too nearly after 5 years from the date of the alleged occurrence.;