The husband of the petitioner was appointed as Grade-II Police Constable on 15.03.1972. He was promoted as Grade-I Police Constable on 14.01.1980. He was further promoted as Head Constable on 01.12.1983. The total service of the petitioner is 27 years in the department.
2.A Charge Memo dated 03.03.1997 was issued alleging that while he was working in the Police Control Room in Trichy, on 17.07.1996, he consumed liquor while on duty and shouted and abused in filthy language. The charge framed under Rule 3(b) of the Tamil Nadu Police Subordinate Services Rules is extracted here under:
"Gross misbehaviour and reprehensible conduct in having consumed liquor while on duty and shouting and abusing in filthy language in the Police Control Room, Trichy on 17.07.1996 from 20.00 hrs to 23.00 hrs, arrested in Trichy Cantonment Police station Crime No.952/96 u/r 4(i)(j) TNP Act r/w 75 (i)(b) MCP Act."
3.The husband of the petitioner was arrested by Trichy Cantonment Police and a case was registered against him in Crime No.952/96 u/r 4(i)(j) of Tamil Nadu Prohibition Act r/w Section 75 (i)(b) Madras City Police Act.
4.It is admitted that further action was dropped in the criminal case and the departmental enquiry alone was conducted against him.
5.One Thiru.S.Srinivasan, Head Constable, who was working along with the husband of the petitioner in the Police Control Room, lodged a complaint in the Cantonment Police Station, Trichy alleging that the husband of the petitioner consumed liquor while on duty and abused in filthy language. Based on his complaint, as stated above, the criminal case was registered against him. It is the case of the prosecution that Thiru.R.Sudalai, Head Constable, Thiru.P.Narayanan, Grade-I Police Constable, Thiru.P.Mani, Grade-I Police Constable and Thiru.B.Joseph, Grade-I Police Constable of Police Control Room, witnessed the incident. That is, they were eye-witnesses to the incident. All of them were examined in the enquiry. Further, on complaint to the Trichy Cantonment Police Station, Thiru.S.Sundararaj, Sub-Inspector of Police, took him to the hospital for medical examination to get the Medical Report so as to ascertain whether he consumed liquor. Thiru.S.Sundararaj was also examined in the enquiry. Dr.Swaminathan, Assistant Medical Officer of Government Head Quarters Hospital, Trichy was also one of the witnesses in the enquiry, who collected the Blood and Urine for Medical Test and issued a Certificate. Thiru.T.R.Rajasekaran, Inspector of Police, Law & Order, Cantonment Police Station, conducted investigation and recorded statements from the aforesaid persons in the preliminary enquiry. He was also examined in the enquiry. The Enquiry Officer recorded a finding of guilt. Based upon the findings, the husband of the petitioner was dismissed from service by an order dated 12.05.1999. Challenging the same, the husband of the petitioner preferred an appeal dated 08.07.1999 to the second respondent. While the appeal was pending, the husband of the petitioner committed suicide on 23.08.1999.
6.In these circumstances, the petitioner filed the Original Application in O.A.No.3491 of 2002 (W.P.No.2963 of 2006) to quash the order dated 12.05.1999 passed by the third respondent, which was confirmed by the second respondent by an order dated 06.08.1999 and for consequential direction to pay her family pension and all other retirement benefits.
7.Heard Ms.S.Nirmala Daisy, the learned counsel for the petitioner and Mr.P.Muthukumar, the learned Government Advocate for the respondents.
8.The learned counsel for the petitioner contends that it is a case of no evidence. It is submitted that none of the witnesses stated what was the abusive language used by the petitioner. The learned counsel took me through the evidence of the witnesses who were examined in the enquiry. It is true that no where witnesses stated about the abusive language used by the petitioner. On the contrary, they stated that the petitioner complained to the Mike System in Karur, while he was communicating with the Superintendent of Police at Karur. It is submitted that he complained that no papers were available within the Office premises and he wanted the papers to be sent to him. Other than this, there is no incriminating evidence against the husband of the petitioner. Therefore, the learned counsel for the petitioner is correct in her submission that there is no evidence as to abusive language used by the petitioner. In fact, even in the statements made by these witnesses in the preliminary enquiry, no specific allegations were made as to the abusive language used by the petitioner, except stating vaguely that the petitioner used abusive language. This Honourable Court in K.M.Ramasamy Vs. Assistant Commissioner of Labour (Controlling Authority under the Payment of Gratuity Act), Coimbatore reported in 1991 (II) LLN 965 held that in the absence of any evidence as to the nature of abusive language used by the petitioner, the charge of using of abusive language, should be held as not proved.
9.Further, it is submitted that other charge is that the husband of the petitioner consumed liquor while on duty. It is submitted that though blood and urine were collected from him by the Doctor, who examined him and gave a Certificate, no Medical Report was submitted in the enquiry. In the absence of the Medical report, it should be held that the charge of consumption of the liquor is not proved. The Certificate given by the Doctor after physical examination that the petitioner consumed liquor, but not under its influence was only a preliminary Certificate and the same should be confirmed by way of Medical Report based on Laboratory investigation. That is why, the blood and urine were collected from the petitioner for laboratory investigation and no medical report was obtained and no medical report was submitted before the enquiry. In these circumstances, it is submitted that the finding of the Enquiry Officer holding the charge of consumption of liquor by the husband of the petitioner as proved, is not correct.
10.The learned counsel relies on a Division Bench Judgment of this Court in Assistant Security Officer, Railway Protection Force, Jolarpettai & Others .vs. S.Sivagnanam reported in 1996 (II) LLJ 597. The learned counsel has relied on Paragraph 11 of the Judgment, which runs as follows:
"11.In our opinion the documents filed and the evidence tendered, do not at all make out the charge that the respondent had consumed alcohol while on duty."
11.The learned counsel also referred to the Paragraph 15 of the said Judgment to the effect that unless the Medical Report is produced and marked as an exhibit in the enquiry, by examining the author of the report, it could not be concluded that the delinquent consumed liquor.
12.In my considered view, the submissions of the learned counsel are well founded. The criminal case was not proceeded further and the action was dropped. Further more, the Medical Report was not produced in the enquiry. The Enquiry Officer held that the Medical Report could simply be a document and the document could not conclusively prove whether the petitioner consumed Alcohol or not. The following passage in the report of the Enquiry Officer in this regard, is extracted herein below:
VERNACULAR (TAMIL) PORTION DELETED
13.I am of the view that such an approach of the Enquiry Officer is totally perverse. On the aforesaid findings, the Enquiry Officer said that the Medical Report has no significance to ascertain as to whether the delinquent was under the influence of Alcohol or not. Further, the delinquent questioned that procedure was not properly followed while the blood and urine were collected from him. In view of not following the procedure, it was submitted by the delinquent in the enquiry that this circumstance should be held in his favour. The Enquiry Officer on the other hand, recorded that since the blood and urine were not sent to the Laboratory, his argument was of no use. The passage related to the aforesaid finding is extracted hereunder:
VERNACULAR (TAMIL) PORTION DELETED
14.It also makes clear that the approach of the Enquiry Officer is totally perverse. No prudent person could make such a conclusion based on the serious dispute raised by the delinquent.
15.The Enquiry Officer also erroneously held that the delinquent did not get any favourable statement during the cross-examination. The relevant passage of the Enquiry Officer in this regard is as follows:-
VERNACULAR (TAMIL) PORTION DELETED
16.As stated above, this is also contrary to the record. When I went through the evidence of the witnesses, I could see that they have categorically answered during the cross-examination that they were not aware of the abusive language used by the petitioner. Therefore, the Enquiry Officer is not correct in stating that there was nothing elucidated in the cross-examination by the petitioner. Further more, the Enquiry Officer also committed another grave error in shifting the burden of proof on the petitioner by stating that the delinquent failed to prove his defence. It is stated by the Enquiry Officer as VERNACULAR (TAMIL) PORTION DELETED
17.In view of the aforesaid discussion, it is very clear that the findings of the Enquiry Officer are to be characterized as perverse. Since the impugned orders are based on such a finding, those orders are liable to be interfered with. Accordingly, the impugned orders dated 12.05.1999 and 06.08.1999 of the third respondent and second respondent respectively are quashed. Though the charges as framed were not proved, he created an ugly scene and therefore, the petitioner is not entitled to salary from the date of dismissal to the date of the death of the husband of the petitioner. Further, the period of non-employment should be treated as if he was on duty by giving notional fixation, for pension and other benefits. The respondents are directed to pay the petitioner's family pension and other retirement benefits within a period of eight weeks from the date of receipt of a copy of this order.
This writ petition is disposed of accordingly. No costs.
mps To
1.The Secretary to Government, Home Department, Fort St. George, Chennai.
2.The Deputy Inspector General of Police, Trichy Range, Trichy.
3.The Superintendent of Police, District Police Office, Trichy