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R.Eswaramoorthy vs The Director General Of Police on 8 March, 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 08.03.2017

CORAM THE HONOURABLE MR.JUSTICE S.S.SUNDAR

W.P(MD)No.7408 of 2017

R.Eswaramoorthy,
Head Constable 1370,
(Under Compulsory Retirement),
Madurai District. … Petitioner

Vs.

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. ..Respondents

Petition filed under Article 226 of the Constitution of India, praying
for the issuance of a Writ of Certiorarified Mandamus to call for the
records relating to the impugned order in Rc.No.156965/AP.2(3)/2013, dated
15.03.2014, passed by the 1st respondent confirming the order in
R.O.No.329/2013 C.No.A4/5490/AP/2013, dated 16.08.2013 passed by the 2nd
respondent confirming the order of Compulsory Retirement from Service passed
by the 3rd respondent in his proceedings Na.Ka.No.F.1/Tha.Pa/138/2012, dated
26.06.2013 and quash the same as illegal and consequently direct the
respondents to reinstate the petitioner with effect from the date of his
Compulsory Retirement from Service along with all monetary and other
benefits.

!For Petitioner : Mr.M.E.Elango

^For Respondents : Mr.J.Gunaseelan Muthiah
Government Advocate

:ORDER

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..

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