This Writ Petition has been filed challenging the impugned order dated 15.03.2014 passed by the first respondent confirming the order of Compulsory Retirement of the petitioner from service passed by the third respondent dated 26.06.2013 which was confirmed by the second respondent by order dated 16.08.2013 and consequential direction to the respondents to reinstate the petitioner with effect from the date of his Compulsory Retirement from Service along with all monetary and other benefits.
2.The brief facts that are necessary for the disposal of this Writ Petition are as follows:
2.1.On 02.09.1993, the petitioner was appointed as Bugler Police. The petitioner was promoted as Head Constable with effect from 02.09.2008. In the year 1999, the petitioner got married to one Mrs.Nagajothi. However, his married life was not alright, as there were quarrel and misunderstanding between the husband and wife. The wife of the petitioner filed a maintenance case in M.C.No.48 of 2011 and she also gave a criminal complaint on 03.12.2011 against the petitioner alleging ill-treatment, harassment and cruelty. It is pertinent to point out that this complaint refers to series of incidents over a period of three years. However, a case was registered in Crime No.1 of 2012 under Sections 498A of I.P.C. It is on the basis of the said complaint, a charge memo dated 26.10.2012 was issued to the petitioner alleging that the petitioner was involved in a criminal case punishable under
Section 498A of I.P.C. The charge memo contains nothing but the allegations of wife found in the complaint. Though an explanation was submitted by the petitioner to the charge memo, an enquiry report was filed against him and on the basis of the enquiry report, the disciplinary authority passed an order imposing a punishment of compulsory retirement. Aggrieved by the order passed by the third respondent, the petitioner preferred an appeal before the second respondent who chose to dismiss the appeal by an order dated 16.08.2013. Though a review petition was filed by the petitioner before the first respondent against the order passed by the appellate authority, namely, the second respondent, the review petition was also dismissed by the first respondent by order dated 15.03.2014. The present writ petition is therefore filed by the petitioner against this order.
3.The charge memo dated 26.10.2012 reads as follows:
?xGf;fKk; fl;Lg;ghLk; epiwe;j fhty; Jiwapy; gzpg[hpa[k; gpiHahsh; fle;j 2011k; tUlk; Vg;uy; khjk; 26k; njjp gpiHahspd; kidtp jpUkjp/ehfn$hjp taJ 35 vd;gtiu moj;J ,uj;jf; fhak; Vw;gLj;jp. ,uj;jf; fhaj;Jld; ,tuJ FHe;ijfSld; tPl;il tpl;L btspnaw;wpa[k;. ,tuJ thH;f;iff;F ve;j cjtpa[k; bra;atpy;iybad;Wk;. ,tuJ FHe;ijfspd; gog;g[f;F gzk; cjtp vJt[k; bra;atpy;iybad;Wk;. ,th; ePjpkd;wk; brd;W thH;f;if thH;tjw;F cjtpnfl;L tHf;F bjhLj;Jk;. ePjpkd;wj;jpy; ,tUf;Fk; ,tuJ FHe;ijfSf;Fk; jyh U:/2000-? tPjk; khjk; U:/6000-? (U:gha; Mwhapuk; kl;Lk;) bfhLf;f cj;jutpl;Lk;. mjd; gpd;dh; gpiHahshpd; kidtp kJiu khefh; fhty; Jiw Jiz Mizah;. rl;lk; kw;Wk; xG';F mth;fsplk; bfhLj;j g[fhh; kD rk;ge;jkhf tprhuiz nkw;bfhz;L gpiHahsh; kPJ fle;j 04/01/2012k; njjp kJiu efh; jy;yhFsk; kfsph; fhty; epiyaj;jpy; Fw;w tHf;F vz;/01-12 u/s 498A IPC tHf;F gjpt[ bra;ag;gl;L. tprhuizf;Fg; gpd;g[ Fw;wg;gj;jphpf;if jhf;fy; bra;ag;gl;L kJiu n$/vk;/2 ePjpkd;wj;jpy; CC No.321/12?d; go nfhg;g[f;F vLf;fg;gl;L Fw;w tHf;fpy; <Lglf; fhuzkhapUe;j eltof;if fhty; Jiwapd; ew;bgaUf;F fs';fk; tpistpj;j fz;of;fj;jf;f xG';fPdkhd Fw;wk;/??
4.The order of disciplinary authority indicates that he has only reproduced the entire report of the Enquiry Officer. Ultimately, the disciplinary authority has concluded by stating as follows: ?xGf;fKk; fl;Lg;ghLk; epiwe;j fhty; Jiwapy; gzpg[hpa[k; gpiHahsh; kw;wth;fSf;F Kd; khjphpahf jpfHhky; jd; kidtpia bfhLik gLj;jpa fhuzj;jpw;fhf jy;yhFsk; midj;J kfsph; fhty; epiyaj;jpy; Fw;w tHf;F vz;/01-2012 gphpt[ 498 (A), 406 ,jr kw;Wk; 4 of DP Act d; go tHf;F gjpt[ bra;a gpiHahsh; Kw;wpYk; fhuzkhf ,Ue;Js;shh; vd;fpw tpguk; muR jug;g[ rhl;rpfs; kw;Wk; rhd;whtd';fspd; K:yk; bjspthf bjhpatUfpwJ/?
vdnt. gpisahsh; kPjhd Fw;wr;rhl;L re;njfj;jpw;fplkpd;wp epU:gzkhfpwJ vd jPh;khdpj;Js;s tprhuiz mjpfhhpapd; jPh;t[ Vw;g[ilaJ vdf;fUj;jpy; bfhs;tjw;F epahakhd Kfhe;jpu';fs; fhzg;gLfpwJ/ vdnt. gpiHahshpd; fle;j fhy bkhj;j gzpf;fhy';fis fUj;jpy; bfhz;Lk;. gpiHahshpd; taij fzf;fpy; bfhz;Lk;. mthpd; FLk;g R{H;epiyia fUj;jpy; bfhz;Lk;. gpiHahsh; kPjhd Fw;wr;rhl;L re;njfj;jpw;fplkpd;wp epU:gzkhfpwJ vd jPh;khdpj;Js;s tprhuiz mjpfhhpapd; jPh;it Vw;Wk; gpiHahsUf;F jz;lidahf ?gzpapypUe;J fl;lha Xa;t[? (Compulsory Retirement from Service) bra;J ,jd; K:yk; MizapLfpnwd;/?
5.It is not in dispute that the criminal case against the petitioner has ended in acquittal. The petitioner has filed a petition originally for restitution of conjugal rights as against his wife and while the same was pending, the petitioner filed a petition for divorce and got divorce. Subsequently, in view of the disposal of the divorce petition, the petition filed by the husband for restitution of conjugal rights has become infructuous. The wife has also filed a petition earlier for maintenance and obtained an order for interim maintenance. Except the pendency of various proceedings between the husband and wife and the matrimonial dispute in the family of the petitioner, there was no other allegation against the petitioner about his misconduct in the course of his employment while discharging his duty in relation to his service. The order passed by the appellate authority does not contain reason. Except stating that the case of the petitioner have been examined in detail and recording a serious allegation made by the petitioner's wife against the petitioner for leading an immoral life which is not even found in the charge memo or in the complaint given by the wife, the legal issues raised by the petitioner in the appeal were not considered. Even the revisonal authority has recorded simply the allegations levelled by the wife as against the petitioner and recorded that the said allegations are proved during the course of enquiry.
6.In the above circumstances, the learned counsel for the petitioner reiterated the submissions which he had made before the appellate authority and revisional authority, in the memorandum of grounds. The learned counsel for the petitioner made the following submissions:-
(a) the findings of the Enquiry Officer are based on no evidence and are perverse;
(b) the petitioner was not afforded with adequate opportunity to defend himself and as such there was violation of principles of natural justice;
(c) no independent witness have been examined and even the investigating officer has failed to record the statements obtained from others;
(d) the alleged conduct of the petitioner did not bring disrepute to the department;
(e) in any case, the punishment of Compulsory Retirement is disproportionate to the gravity of the alleged misconduct and
(f) in the criminal case in C.C.No.42 of 2014, pursuant to the same complaint which is the basis for departmental proceedings, it is categorically found that the petitioner is not guilty of offence under
Section 498(A) or
Section 406 of I.P.C. and the case ended in acquittal. Hence, the very basis of the charge goes and hence, the order of punishment is liable to be reversed.
7.The learned counsel for the petitioner relied upon a judgment of this Court in the case of S.Natchathram v. The Superintendent of Police, Madurai District, Madurai in W.P.(MD) No.8110 of 2007, dated 03.09.2010, wherein a similar case was dealt with. In the Writ Petition, a similar charge memo, as in the present case, was challenged and this Court has quashed the charge memo and allowed the writ petition. Paragraph 24, 25 and 26 of the said judgment are relevant and hence, they are extracted as follows:
?24. As stated supra, two aspects were taken into consideration as the basis for initiation of disciplinary action against the petitioner is that; (i) During the enquiry by the Deputy Superintendent of Police, Oomachikulam, into the complaint lodged by the petitioner's wife, the petitioner conducted himself in such a manner challenging by his wife and in- laws the nothing can be done by them and (ii) the involvement of the petitioner in a criminal offence in Crime No.15 of 2005 under
Section 498-A I.P.C. Even assuming that the petitioner had conducted in such a manner challenging that nothing can be done by his wife or in-laws, this Court is of the considered view that such a conduct cannot be construed as indiscipline, for the reason that even at the time of enquiry, the dispute between the spouses, have already started and the matter was already pending before the Family Court, owing into difference of opinion between them and for other family matters and the petitioner had already approached the Family Court for divorce and his wife also had filed M.C.No.79 of 2005 for maintenance and H.M.O.P.fNo.486 of 2005 for Restitution of conjugal rights. Institution of ?Divorce Petition by the Writ Petitioner cannot be a subject matter of a disciplinary proceedings, as law permits the parties to a marriage to seek for appropriate remedy before the Family Court. When the issue as to whether, the petitioner has wilfully failed to maintain his wife and children and whether there was any bona fide cause for leaving his wife and children and whether there was any bona fide cause for leaving his family abruptly are matter to be dealt with by the Family Court. When the proceedings were pending before Family Court, this Court is of the considered view that the petitioner cannot be charged for approaching the Family Court for redressal of his grievance. Further, the allegation that during enquiry by the Deputy Superintendent of Police, Oomachikulam, the conduct of the petitioner was in such a manner challenging his wife and in-laws also cannot be a subject matter of disciplinary proceedings for the reason that the litigation between them had already commenced.
25. The second count of the charges of involvement of the petitioner in a criminal case, which is found to be a indisciplinary conduct of the force. As stated supra, after analysis of the entire evidence, the Court of competent criminal jurisdiction has categorically held that it is not safe to rely upon the First Information Report to proceed against the petitioner.
26.As rightly pointed out by learned counsel for the petitioner there is absolutely no evidence recorded against the writ petitioner, regarding the allegation of harassment and demand of dowry. The registration and the filing of the charge sheet have been done indiscriminately by P.W.9, Investigating Officer, against whom, Learned Judicial Magistrate No.4, Madurai, has recommended for departmental action. When the criminal Court has categorically held that it is not reliable or safe to proceed on the basis of the First Information Report, this Court is of the considered view that the First Information Report, falls to the ground and in such circumstances, mere involvement of the petitioner in the above said case, cannot be a subject matter of the disciplinary proceedings, warranting further action.?
8.The learned counsel for the petitioner also relied upon another judgment of this Court in the case of R.V.Ramganesh v. The Medical Superintendent, Government Rajaji Hospital, Madurai in W.P.(MD)No.11938 and 11939 of 2011, dated 11.11.2011. In the said writ petition, the order of suspension pending disciplinary proceedings was challenged. Paragraph 8 of the said judgment was relied upon by the learned counsel for the petitioner and hence, it is extracted as follows:
?8.Be that as it may, the facts mentioned above goes to show that the petitioner has married R.Pushpa on 06.05.2005. After child birth, there has been continuous domestic quarrels between the petitioner and his wife. As a result, the petitioner's wife made a complaint with the All Women Police Station. The allegation made by the petitioner's wife is nothing to do with the official work or the duties that has been discharged by the petitioners in the respondent / office. Therefore, I do not find any substance or better reason to place the petitioners under suspension. In that view of the matter, I am constrained to set aside the impugned orders of suspension and accordingly, the same is set aside. The respondents concerned are directed to reinstate the petitioners forthwith.?
9.Though the subject matter dealt with in the later case relates to the present case and this Court has held that the allegations against the petitioner therein is nothing to do with the official work or the duties that has been discharged by the petitioner in the respondent office and set aside the order of suspension holding that there is no substance to place the petitioner under suspension, the writ petition was filed challenging the order of suspension. Hence, as a precedent to follow in the present case, this Court has its reservation. However, in the earlier case, this Court has quashed the charge memo against the petitioner after holding that the petitioner cannot be charged for the allegation that were levelled by the petitioner's wife as against the petitioner therein. Since the criminal case ended in acquittal, I am of the view that the findings of the authorities based on the enquiry report is perverse and the allegations one against another cannot be the basis for a disciplinary proceedings unless the allegations are proved beyond doubt. In the present case, the petitioner was acquitted in the criminal case. The petitioner has got divorce on the ground of mental cruelty. Though the wife who appears to have given evidence against the petitioner during the disciplinary proceedings, she remained absent and allowed the petitioner to get an ex parte decree of divorce as against her. In the present case, the case against the petitioner is that the petitioner has brought disrepute to the Police Department by getting himself involved in a criminal case. Mere proof of this charge cannot be a reason to inflict punishment of compulsory retirement. Hence, I find that even if the charge is proved against the petitioner, the petitioner does not deserve a punishment of compulsory retirement. Merely on the allegations made against the petitioner by his own wife, it cannot be concluded that the petitioner is guilty of all charges and that he has committed an offence under
Section 498A of I.P.C. or any other offence involving moral turpitude. None of the allegations found in the charge memo has any nexus to his official duty. The charge found in the charge memo is about the registration of complaint given by the petitioner's wife against the petitioner in Crime No.1 of 2012 on the pretext that the petitioner is responsible for his involvement in the criminal case in C.C.No.321 of 2012 on the file of Judicial Magistrate No.2, and thereby caused disrepute to the police department. When the petitioner is acquitted in the criminal case, the misconduct alleged against the petitioner that he was involved in a criminal case under
Section 498A as found in the charge memo falls to the ground. During enquiry, the petitioner's wife has given evidence that the petitioner has an affair with another lady. This allegation was not there in the complaint. The disciplinary authority and respondents 1 and 2 have believed this new case of wife against the petitioner. Hence, the disciplinary authorities proceeded on a wrong premise. The conclusion of respondents 1 and 2 are to the effect that the allegations of petitioner's wife against petitioner are proved. In such circumstances, after the petitioner is acquitted in the criminal case, after an elaborate full-fledged trial, the charge against the petitioner cannot stand. The petitioner has stated that he was rewarded 16 times by the department and that he had very good past record to his credit. In such circumstances, the impugned order of the disciplinary authority, as confirmed by the appellate authority, namely, the second respondent and the first respondent in review are set aside. The Writ Petition is therefore allowed and consequently, the respondents are directed to reinstate the petitioner with effect from the date of punishment by the disciplinary authority and to confer him all monetary and other benefits in accordance with law. However, there is no order as to costs.
To
1.The Director General of Police, Santhome, Chennai ? 600 004.
2.The Deputy Inspector General of Police, Dindigul & I/C Madurai Range, Madurai.
3.The Superintendent of Police, Madurai District, Madudrai..