The Original Application in O.A.No.1552 of 2002 before the Tamil Nadu Administrative Tribunal is the present writ petition.
2.The petitioner joined as Grade II Police Constable in 1983. He was promoted as Grade I Police Constable in 1994. On 16.10.1996, the petitioner along with three other police personnel escorted one accused Rajendran from Trichy Central Jail to Tiruvarur Magistrate Court. The accused Rajendran was the Secretary of AIADMK, Kodavasal Panchayat Union.
3.While so, a charge memo dated 19.12.1996 was issued under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 (hereinafter referred to as the "Rules") alleging that he broke the journey while he took the accused from Trichy Central Jail to Tiruvarur Magistrate Court at the house of one Sowrirajan at Tiruvarur Dhurgalaya Road and the accused Rajendran was permitted to take food in the house of the said Sowrirajan. It is also alleged that the petitioner permitted a large group of persons belonging to certain political parties to garland the accused Rajendran within the Court premises at Tiruvarur.
4.An enquiry was conducted by the Deputy Superintendent of Police, Nagapattinam. 8 witnesses were examined on the side of the Department and 2 witnesses were examined on the side of the petitioner. 11 documents were marked as Exhibits on the side of the Department. The Enquiry Officer, heavily relying on the evidence of P.W.7 and P.W.8 and Ex.P-11, and recorded a finding of guilt. Based on the said finding, the second respondent passed an order dated 29.07.1999, imposing the punishment of reduction in time scale of pay by two stages for two years without cumulative effect. The appeal dated 12.01.2000 preferred by the petitioner was rejected by the first respondent in the order dated 31.10.2000.
5.Aggrieved by the same, the petitioner filed Original Application in O.A.No.1552 of 2002 (W.P.No.11698 of 2007) to quash the aforesaid orders of the respondents.
6.Heard Mr.R.S.Anandan, learned counsel for the petitioner and Mr.P.Muthukumar, learned Government Advocate for the respondents.
7.The learned counsel for the petitioner contends that the findings of the Enquiry Officer is solely based on the statement made in the preliminary enquiry. Those statements were retracted by the witnesses.
8.The learned counsel for the petitioner submits that the witnesses viz., P.W.1, P.W.3 and P.W.4 were independent persons and statements were recorded by P.W.8, the Deputy Superintendent of Police, who conducted preliminary enquiry. Those persons gave evidence stating that they did not give such statements to P.W.8. The learned counsel for the petitioner states that basing on those statements, the Enquiry Officer recorded the finding of guilt. It is submitted that recording a finding of guilt based on the statement made in preliminary enquiry, particularly when the same was not admitted by the persons, who were examined in the enquiry before the delinquent, is opposed to the decision of this Court in T.Pichai Vs. Deputy Inspector General of Police, Tirunelveli Range, Tirunelveli and another reported in 2006 (2) MLJ 202, wherein, considering the decision of a Division Bench of this Court in W.P. No.29862 and 32581 of 2002 dated 22.02.2005 and a decision of the Hon'ble Apex Court in Union of India vs. Mohd. Ibrahim reported in 2004 (10) SCC 87, it is held that the findings of the enquiry officer is not sustainable in view of the fact that the report of the enquiry officer was solely based on the statements recorded during the preliminary enquiry. The learned counsel for the petitioner also relies on a judgment of the Hon'ble Apex Court reported in Central Bank of India Ltd. vs. Prakash Chand Jain reported in 1969 (2) LLJ 377 : AIR 1969 SC 983 for the same proposition.
9.The judgment of this Court relied on by the learned counsel for the petitioner in the case of T.Pitchai reported in 2006 (2) MLJ 202, cited supra and also the judgment of the Apex Court in Prakash Chand Jain's case reported in AIR 1969 SC 983, cited supra, are directly on the point. The relevant paragraph from the judgment of this Court in 2006 (2) MLJ 202 are extracted here under:
"10. Applying the above principles laid down by the Honourable Supreme Court, Division Bench of this Court and also the earlier decision of mine, as referred above, I am of the opinion that the differing view taken by the disciplinary authority/second respondent herein against the Enquiry Officer's report is unsustainable in view of the fact that the said view was taken solely based on the statements recorded during the preliminary enquiry. Consequently, the punishment imposed on the basis of the dissenting view is unsustainable and the order of the appellate authority confirming the order of the dismissal is also unsustainable."
The following passage from the judgment of the Apex Court in AIR 1969 SC 983 is extracted here under:
"It is true that, in numerous cases, it has been held that domestic tribunals, like an Enquiry Officer, are not bound by the technical rules about evidence contained in the Evidence Act, but it has nowhere been laid down that even substantive rules, which would form part of principles of natural justice, also can be ignored by the domestic tribunals. The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act."
The aforesaid passages make it very clear that the findings of the enquiry officer, which were rendered on the basis of the statements made in the preliminary enquiry, are perverse.
10.The learned counsel for the petitioner is correct in his submission that those three witnesses were treated as hostile and were cross examined by the Enquiry Officer and inspite of the cross examination, they stuck to their stand stating that they did not make any such statements to P.W.8 during the preliminary enquiry.
11.The second witness for the prosecution is a Sub-Inspector of Police, Armed Reserve, Trichy. He deposed in the enquiry, in favour of the defence. He stated that the accused Rajendran was provided food by purchasing a food packet from a shop. This version of the second witness of the prosecution was not treated as hostile and no cross examination was done. This vital aspect was not taken note of by the Enquiry Officer, while recording a finding. The two witnesses, examined on the side of the defence, were the eye-witnesses to the incident and they also belong to Police Department. They categorically deposed that the vehicle was not stopped to take food in the house of one Sowrirajan by breaking the journey. It is relevant that the person, who was examined as second witness on the side of defence, was the driver, who drove the vehicle taking those accused. It is relevant to note that two persons were not cross examined in the enquiry. Therefore, the un-controverted version of those witnesses should have been acted upon and the Enquiry Officer. On the other hand, he recorded a finding of guilt, relying on the depositions of P.W.7 and P.W.8, who were not eye-witnesses. P.W.7 was the Inspector of Police, Tiruvarur Police Station. P.W.8 was the Deputy Superintendent of Police, who conducted the preliminary enquiry. Those two witnesses were not eye-witnesses to the occurrence. According to P.W.7 and P.W.8, the eye-witnesses were P.W.1, P.W.3 and P.W.4, who were independent witnesses. But those witnesses stated in favour of defence, as explained above. In these circumstances, the Disciplinary Authority accepted such a perverse finding and imposed the punishment.
12.The Appellate Authority, who is enjoined under Rule 6(1) of the Rules to record a finding as to whether the facts on which the order was passed have been established, failed to exercise his power as provided under Rule 6(1)(a) of the Rules. The first respondent passed a non-speaking order and there is no discussion at all about the aforesaid relevant facts, which stare ones eyes.
13.Hence, the impugned order dated 29.07.1999 of the second respondent and 31.10.2000 of the first respondent are quashed and the writ petition is allowed. No costs.
TK To
1.The Deputy Inspector General of Police Thanjavur Range, Thanjavur.
2.The Superintendent of Police Nagapattinam