M.Gunasekaran v. The Deputy Inspector General Of Police

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 04.01.2022 Pronounced on : 01.02.2022

CORAM:

THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA AND THE HONOURABLE MR.JUSTICE P.VELMURUGAN and C.M.P(MD).Nos.6452, 6453 and 6454 of 2021 M.Gunasekaran Circle Inspector, Temple Circle Police Station, Rameswaram, Ramanathapuram District.

.. Appellant/Petitioner Vs.

1.The Deputy Inspector General of Police, Ramanathapuram, Ramanathampuram District.

2.The Superintendent of Police, Ramanathapuram, Ramanathapuram District.

3.The Additional Superintendent of Police, Offences against Women and Children, Ramanathapuram, Ramanathapuram District.

.. Respondents/Respondents Prayer:Writ Appeal filed under Clause XV of the Letters Patent Act, praying this Court to set aside the order passed by this Court in W.P(MD)No.10435 of 2021 dated 05.07.2021.

Prayer in WP(MD). 10435/ 2021 :

Writ Petition is filed under Article 226 of the Constitution of India, praying this Court S-20. To issue a Writ of Certiorarified Mandamus, to call for the records on the file of the 1st respondent pertaining to its order bearing Na.Ka.No. B1/3864/2018 dt. 15.10.2020 and to quash the same and consequently directing the 1st respondent to transfer the enquiry proceeding in P,R No. 90 of 2019 on the file of the 3rd respondent to any other officer by considering my representation dt. 01.10.2020 For Appellant : Mr.S.C.Herold Singh For Respondents : Mr.M.Sidharthan Additional Government Pleader 1/6

JUDGMENT

(Judgment of the Court was made by P.VELMURUGAN,J.) This writ appeal has been filed by the appellant against the order, dated 05.07.2021 passed in W.P(MD)No.10435 of 2021.

2. The case of the appellant is that while he was working as Inspector of Police in Sathirakudi Police Station, Ramanathapuram District, a charge memo was served. The third respondent has been appointed as an Enquiry Officer and he commenced enquiry on 07.03.2020. From the day one of the enquiry, the third respondent is conducting the enquiry in a biased manner. The third respondent is not giving any opportunity to the appellant to cross-examine the witnesses. The third respondent, on his own, recorded the evidence of the witnesses. The defacto complainant was examined as P.W.6 on 30.09.2020 and the third respondent forced the appellant to crossexamine the defacto complainant/P.W.6 on the same day. The Enquiry Officer was examined as P.W.7 on 03.10.2020, in the absence of the appellant.

Therefore, the appellant requested the third respondent to grant some time for cross examination, but, the third respondent refused to give an opportunity and marked the appellant as absent. Hence, the appellant gave a representation on 09.06.2021 to the third respondent to recall P.W.6 and P.W.7 and to permit him to cross-examine them once again. In the meantime, the first respondent passed the impugned order dated 15.10.2020, permitting the third respondent to continue the domestic enquiry and directed the appellant to co-operate with the enquiry. The third respondent without considering the appellant's acquittal in the criminal case conducted enquiry and the third respondent has not given an opportunity to the appellant which is in violation of principles of natural justice.

Therefore, the appellant filed a writ petition before this Court. The Writ Court has also dismissed the writ petition without considering the facts. Challenging the same, the present writ appeal is filed.

3. The learned counsel for the appellant submitted that the criminal case was registered against the appellant and the same was ended in acquittal. The first respondent has failed to consider the acquittal from the criminal case and initiated the disciplinary proceedings against the appellant and the same was commenced on 07.03.2020. The third respondent has been appointed as an Enquiry Officer and the defacto complainant was examined as P.W.6 on 13.09.2020. Without granting time for cross-examination, the third respondent forced the appellant to cross-examine the defacto complainant/P.W.6 on the very same day. Similarly, the Enquiry Officer was examined P.W.7 on 03.10.2020 in the appellant's absence. The appellant has approached the third respondent to recall P.W.6 and P.W.7 for cross-examination and the same was rejected. Thereafter, the appellant made a representation before the 2/6

first respondent. The first respondent has passed the impugned order, dated 15.10.2020 rejecting the claim of the appellant and permitting the third respondent to continue the domestic enquiry and directed the appellant to co-operate with the enquiry.

4. He further submitted that the first respondent has not produced all the relevant documents mentioned in the charge memo and the third respondent who has been appointed as Enquiry Officer, did not give opportunity to the appellant to cross-examine P.W.6 and P.W.7 and also the third respondent conducted the enquiry in a biased manner and in the absence of the appellant, the witnesses were examined by the third respondent. Thereafter, the appellant filed a petition for re-calling the P.W.6 and P.W.7 who are the vital witnesses in this case, the third respondent did not give opportunity to the appellant and refused to recall the witnesses namely P.W.6 and P.W.7. The appellant approached the first respondent, but, the first respondent failed to consider the fact that P.W.6 was not cross-examined by the appellant and P.W.

7 was examined in the absence of the appellant and simply rejected the request made by the appellant and passed the impugned order. Thereafter, the appellant approached the Writ Court challenging the impugned order, the Writ Court also failed to consider the fact that the appellant was acquitted in the criminal case and for the very same charge the domestic enquiry was conducted and the third respondent conducted the enquiry in a biased manner. Therefore, the order of the Writ Court is liable to be set aside and also give an opportunity to cross-examine the witnesses and also transfer the case from the third respondent/Enquiry Officer to some other Enquiry Officer. If the third respondent is allowed to continue as Enquiry Officer, the appellant could not get the real justice.

5. The learned Additional Government Pleader appearing for the respondents submitted that though the criminal case was ended in acquittal only based on the benefit of doubt, there is no bar for proceeding with the departmental enquiry and the departmental enquiry proceedings can be proceeded and in this case, all the particulars were given to the appellant. The third respondent has been appointed as an Enquiry Officer and he has conducted the enquiry in a fair manner and the enquiry commenced on 07.03.2020. So far 7 witnesses have been examined for 7 months. Despite giving opportunity to the appellant, he refused to cross-examine P.W.6 who is the defacto complainant and the Enquiry Officer was examined as P.W.7 on 03.10.2020. Thereafter, the appellant filed a re-call petition on 09.06.2021, after completion of seven months.

He further submitted that there is no proof to show that the appellant approached the third respondent or the first respondent on earlier occasion for re-calling the witnesses, namely, P.W.6 and P.W.7. The Writ Court rightly considered the facts that the appellant tried to protract the departmental enquiry and he has not co-operated for early disposal of the departmental proceedings and has dismissed the writ petition.

same is liable to be dismissed.

6. Heard Mr.S.C.Herold Singh, learned counsel appearing for the appellant and Mr.Sidharthan, learned Additional Government Pleader appearing for the respondents and perused the materials available on record.

7. Admittedly, the criminal case was registered against the appellant in Crime No.316 of 2018 for the offences under Sections 294(b), 323, 387 and 507(i) IPC on the file of Dindigul Taluk Police Station and after completing the investigation, the Investigating Officer has laid the charge sheet before the learned Judicial Magistrate Court No.I, Dindigul. Thereafter, the learned Judicial Magistrate No.I, Dindigul, has taken up the case on file in C.C.No.214 of 2018 and framed the charges against the appellant and two other accused. After trial, the learned Judicial Magistrate No.I, Dindigul, found that the prosecution has not proved the case against the appellant beyond all reasonable doubt. During the pendency of the said criminal case, the second respondent initiated the disciplinary proceedings in P.R.No.90 of 2019 dated 04.12.

2019 against the appellant. Charge memo was issued and the third respondent has been appointed as an Enquiry Officer and 7 witnesses were examined. Thereafter, the appellant filed a petition for recalling the witnesses P.W.6 and P.W.7 and the same was rejected. The appellant made a representation before the first respondent and the first respondent rejected the request of the appellant and passed the impugned order. Challenging the impugned order, the appellant filed a writ petition before the this Court.

8. The main contentions raised by the appellant are that the appellant was acquitted from the criminal case and therefore, no departmental proceedings can be proceeded for the very same charges and another contention is that the third respondent/Enquiry Officer has conducted the enquiry in a biased manner and no opportunity was given, which is in violation of the principle of natural justice. Therefore, he has not conducted the fair enquiry and the Enquiry Officer has to be changed. It is a well settled preposition of law that an acquittal in a criminal case has no bearing or relevance on the disciplinary proceedings as the standard of proof in both the cases are different and the proceedings operate in different fields and with different objectives. Therefore, the contention of the appellant in the regard, is not sustainable.

9. As far as the violation of principles of natural justice is concerned, a perusal of the records shows that the charge memo was issued on 16.11.2018 and after completing the formalities, the third respondent has been appointed as an Enquiry Officer. The third respondent commenced the enquiry on 07.03.2020 and after six months, the defacto complainant was examined as P.W.6 on 13.09.2020 and the appellant did not cross-examine the defacto complainant. The Enquiry Officer was examined as P.W.7 on 03.10.2020 and on that date, the 4/6

appellant was not present and he has not filed any application to re-call P.W.6 and P.W.7. After completion of the chief examination of P.W.6 and P.W.7, on 09.06.2021, the appellant requested the third respondent to re-call the P.W.6 and P.W.7 and also give a representation to the first respondent. The first respondent rejected the representation made by the appellant and passed the impugned order, dated 15.10.2020. Challenging the said impugned order, the appellant filed a Writ Petition before the Writ Court.

10. A mere reading of the entire materials clearly shows that the third respondent/Enquiry Officer has conducted the departmental proceedings in a fair manner and the appellant tried to protract the departmental proceedings and there are no prima facie materials to prove that the third respondent acted in a biased manner. In this case, witnesses have been examined for more than six months. The appellant has not allowed to proceed with the departmental enquiry further and seeking further time for cross-examination is not a matter of right. The appellant has not given any reason as to why he did not cross-examine P.W.6 on the same day and as to why he did not appear on the date of chief examination of P.W.7 and why he has not approached the third respondent within a reasonable time for recalling the witnesses.

On a perusal of the records, it shows that the appellant made an application before the first respondent only on 09.06.2021 and even prior to the application, the appellant made certain allegation against the third respondent before the first respondent that he conducted the enquiry in a biased manner.

11. The appellant tired to protract the enquiry, which cannot be encouraged and the Writ Court rightly decided and rejected the claim of the appellant and also this Court does not find any merit in this appeal and hence, this writ appeal is dismissed. No costs. Consequently, the connected miscellaneous petitions are closed. Sd/- Assistant Registrar (Records) // True Copy // / /2022 Sub Assistant Registrar(CS) tta Note :In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.

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To 1.The Deputy Inspector General of Police, Ramanathapuram, Ramanathampuram District.

2.The Superintendent of Police, Ramanathapuram, Ramanathapuram District.

3.The Additional Superintendent of Police, Offences against Women and Children, Ramanathapuram, Ramanathapuram District.

4.Circle Inspector, Temple Circle Police Station, Rameswaram, Ramanathapuram District

5. The Additional Public prosecutor, Madurai Bench of Madras High Court, Madurai +1 CC to M/s.S.C.HEROLD SINGH, Advocate ( SR-3531[F] dated 02/02/2022 ) +1 CC to M/s.SPLGP ( SR-3651[F] dated 02/02/2022 ) 01.02.2022 SK(CO) KB(15.02.2022) 6P 8C 6/6