(Prayer : Writ Petitions are filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari calling for the records of the respondents in connection with the impugned order passed by the first respondent in PR No.124/2016 dated 15.12.2017 and confirmed by the second respondent in his Proc.C.No.B2/Appeal11/2018 dated 09.01.2019 and further confirmed by the third respondent in RC No.97282/API(1)/2019 dated 22.06.2019 and quash the same.)
1. Heard the learned Senior counsel for the petitioner and the learned Special Government Pleader for respondents, and perused the records.
2. Briefly stated, the case of the petitioner is that he joined service as a Grade-II Police Constable through a selection conducted by the Uniformed Services Recruitment Board and was appointed on 01.03.1998; that the petitioner was deputed to serve in the Organised Crime Investigation Unit (OCIU), Thanjavur, from 11.03.2013 to 30.06.2016; that during his service in the OCIU, he was awarded a punishment vide order dated 15.12.2017, imposing postponement of increment for three years without cumulative effect; that the aforesaid punishment order was confirmed by the second respondent by order dated 09.01.2019; and that mercy petition preferred to the third respondent, was also not considered favourably and rejected by the third respondent vide order dated 22.06.2019.
3. It is the further case of the petitioner that, while working in the OCIU, Thanjavur District, he was issued a Show Cause Notice under Rule 3 (a) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules (for short, ‘Rules’) by the Superintendent of Police, Thanjavur District, alleging the following lapses: “high irreprehensible conduct in gross negligence and dereliction of duty in having deposed evidence before the Court at Mayiladuthurai on 19.07.2016 in contradiction to his earlier statement recorded by the Inspector of Police, Mayiladuthurai with an intention to help the main accused A1 to escape from the case”.
4. The petitioner contended that he had submitted a detailed explanation denying the charges and requested that he be exonerated, contending that the earlier statement allegedly recorded was neither shown to him nor was he informed of its contents. However, the first respondent, without properly considering the explanation, held the charges against the petitioner as proved and imposed the punishment.
5. It is the further case of the petitioner that at the time of the occurrence of the incident, he was returning after attending to his duty of covering the meeting conducted by VCK party as instructed by his superior officers; that the petitioner visited the scene of crime only in the public interest; that on his arrival at the scene of offence the public informed him that a police personnel had been assaulted; that found two persons escaping from the scene of occurrence after attacking Police Constable Moorthy of Mayiladuthruai Police Station; that while the Sub-Inspector of Police, who came to the scene of offence, instructed him to take the injured to the hospital, the Sub-Inspector rushed to catch the accused persons; and accordingly, he took the injured constable to the Government Hospital for treatment.
6. The petitioner contended that taking the injured to the hospital, the injured informed him that one Gokulnath had come with an aruval and attacked him on the shoulder; that after admitting the injured in the hospital, he had left the hospital to attend to other official duties; that the Inspector of Police enquired with the petitioner and recorded a statement under Section 161 (3) of the Code of Criminal Procedure after few days; that during the enquiry, he had informed the Inspector of Police that the injured Constable Moorthy had stated that he was assaulted by Gokulnath; and that the Inspector of Police neither showed the statement he had recorded nor read it over to him, therefore, the petitioner was not aware of the contents of the statement recorded.
7. It is the further case of the petitioner that only after giving evidence before the Court of law, he came to know that his statement under Section 161 Cr.P.C. was not properly recorded by the Inspector of Police and instead recorded the statement in his own manner; that based on the said discrepancy, departmental proceedings were initiated against the petitioner under Rule 3 (a) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules.
8. It is further case of the petitioner that although the petitioner was examined as PW-2 in the criminal case, on account of his deposition contrary to statement given under Section 161 (3) of Cr.P.C. did not result in accused getting acquittal. On the contrary, the accused were convicted; that the Court also did not treat the petitioner as a hostile witness; and thus, the allegation that the petitioner had conducted himself with negligence or in dereliction of duty is unfounded and unjustified.
9. It is the further contention of the petitioner that the first respondent, after issuing the Show Cause Notice, did not conduct any further enquiry and merely by considering the petitioner’s explanation as unsatisfactory, the respondent imposed punishment. Such action, according to the petitioner, is illegal, arbitrary, and contrary to the rules governing disciplinary proceedings.
10. The petitioner also contended that respondents 2 and 3 did not exercise the powers conferred upon them while dealing with the appeal, as required under Rule 6(1) of the Appeal Rules. It is further contended that the Revisional Authority also failed to consider his mercy petition in accordance with Rule 16(A) (2) (III) of the Rules.
11. The petitioner thus contended that the order dated 15.12.2017, by which he was awarded punishment as affirmed by the second respondent vide order dated 09.01.2019 and further confirmed by the third respondent vide order dated 22.06.2019, are all liable to be set aside.
12. In support of the aforesaid submission reliance is placed on the following judgments:-
(i) K. Kandasamy vs. Deputy Inspector General of Police, reported in (2006) 4 MLJ 1382.
(ii) O.K.Bharadwaj vs. Union of India and others, reported in (2001) 9 SCC 180.
(iii) C.K.G. Nathan vs. The Assistant Commandant, reported in (2009) 5 MLJ 1121.
13. Counter affidavit is filed on behalf of the respondents 1 & 2.
14. The respondents 1 & 2, by their counter affidavit, contended that the petitioner, was cited as a prosecution witness in crime No.280 of 2014, deposed before the Court in a manner contrary to the statement given by him earlier to the Investigation Officer under Section 161 Cr.P.C., with the intention of safeguarding the accused.
15. The respondents 1 & 2, by their counter affidavit, contended that being a police constable, the petitioner ought not to have changed his version by contradicting his own statement given to the Investigation Officer; and that the petitioner’s claim that he is not acquainted with Court procedures prior to giving evidence in the Court; that he was nor briefed or told to verify the record before or the statement recorded by the Investigation Officer is not shown to him or read out are afterthoughts; and that the petitioner being a police constable, should have verified the records on the date of giving evidence to ensure consistency with his earlier statement relating to the occurrence.
16. The respondents 1 & 2, by their counter affidavit, contended that the petitioner, while working in the police department, made a statement contrary to the statement earlier given to the Investigation Officer in a criminal case, and thus the petitioner had acted negligently and contrary to his duties. It is contended by the respondent, it is for the said reason disciplinary proceedings were initiated against him, and was awarded the punishment of stoppage of increment for a period of three years without cumulative effect.
17. The learned Special Government Pleader, drawing the attention of this Court to the explanation submitted by the petitioner to the Show Cause Notice, contended that the petitioner did not raise the contentions now urged before this Court either in his explanation or in the appeal. Hence, the petitioner cannot now claim that the first respondent failed to properly consider his explanation while awarding the punishment.
18. The learned Special Government Pleader further submitted that the petitioner had on the other hand admitted lapse on his part on account of ignorance, and having made such an admission, the petitioner had invented the ground of statement recorded by the Investigating Officer was not the same as the one given by him, or that he was not furnished with a copy of the statement.
19. The learned Special Government Pleader further submitted that the petitioner having jointed the service on 01.03.1998 had put in more than 15 years of service, thus cannot be considered a novice either to the department or to procedural requirements, and therefore, his plea of ignorance is untenable.
20. On behalf of the respondents, it is also contended that the disciplinary authority, after considering the seriousness of the petitioner’s conduct, had imposed the punishment of stoppage of increment for three years without cumulative effect, and that the said punishment is not disproportionate to the gravity of the misconduct. Contending as above, the learned Special Government Pleader seeks for dismissal of the writ petition.
21. I have taken note of the respective submissions.
22. Though the learned Senior Counsel appearing on behalf of the petitioner made every endeavour to impress upon this Court that a statement recorded under Section 161 (3) of the Code of Criminal Procedure has no evidentiary value, and that disciplinary proceedings ought not to have been initiated against the petitioner for deposing contrary to such a statement, it is to be noted that the said statement was recorded by the Investigating Officer in the course of investigation into the crime registered. Though it is contended that the statement did not bear the signature of the petitioner and that a copy of the same was not furnished to him, the aforesaid pleas are available in a criminal case and not to a police officer who was cited as Prosecution Witness No.2 in the case. The petitioner, therefore, cannot seek to equate his position with that of a normal witness so as to claim procedural protection.
23. Further, it is to be noted that the petitioner has been working in the Police Department for about 15 years and was posted in the Organised Crime Investigation Unit (OCIU), dealing with organised crimes which have a larger impact on society. Therefore, he cannot claim ignorance of the procedures, nor can he contend that he was not properly briefed before entering the witness box. The stand taken by him after being awarded punishment and can only be construed as an after thought, intended to secure favourable orders.
24. Further, the petitioner, being a Grade – I Police Constable with sufficient experience in the department, ought not to have deposed in a manner that did not support the prosecution case. If police officials, who are part of the prosecuting agency, deviate from their own statements, cannot expect independent witnesses stated by their statements given supporting the prosecution despite being vulnerable. Such conduct of the official witnesses results in the accused securing acquittal in crimes registered against them, thereby emboldening them to commit further offences and posing a danger to society at large.
25. Further, the petitioner has already availed the remedies of appeal as well as revision / mercy petition before the respondents 2 and 3, who did not find merit in his claims. In the exercise of extraordinary jurisdiction under Article 226 of the Constitution of India, this Court cannot undertake a re-appreciation of evidence. The writ Court does not act as an appellate authority insofar as disciplinary proceedings are concerned.
26. The scope of interference by the writ Court against the award of punishment is very limited. It is confined to examining whether, in the given circumstances, the disciplinary authority could have arrived at the said conclusion based on the material available on record, or whether the punishment imposed is so harsh so as to shock the conscience of the Court, apart from cases involving violation of principles of natural justice.
27. The Apex Court in the case of Union of India v. P. Gunasekaran reported in (2015) 2 SCC 610 observed as under:
“12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience”.
28. Further in the case of Indian Oil Corpn. v. Ajit Kumar Singh, reported in (2023) 19 SCC 102, the Apex Court has held as under:
“11. The views expressed by this Court on the scope of judicial review in SBI v. Ajai Kumar Srivastava [SBI v. Ajai Kumar Srivastava, (2021) 2 SCC 612 :, are extracted below;
28. The constitutional court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at those findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.”
29. Further the Apex Court in the case of Union of India v. Subrata Nath, reported in 2022 SCC Online SC 1617 after referring to various decision on the subject held as under:
“21. To sum up the legal position, being fact finding authorities, both the Disciplinary Authority and the Appellate Authority are vested with the exclusive power to examine the evidence forming part of the inquiry report. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct. However, in exercise of powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily reappreciate the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it would shock the conscience of the High Court/Tribunal or is found to be flawed for other reasons, as enumerated in P. Gunasekaran (supra). If the punishment imposed on the delinquent employee is such that shocks the conscience of the High Court or the Tribunal, then the Disciplinary/Appellate Authority may be called upon to re-consider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, on offering cogent reasons therefor”
30. In the facts of the present case, it is evident that the petitioner was issued with a Show Cause Notice before being visited with the award of punishment to which he submitted his explanation. The Disciplinary authority by considering explanation thus awarded him punishment. The petitioner thereafter having availed further remedies by way of appeal and revision, cannot allege that the respondents failed to follow the prescribed procedure or that there was any violation of the principles of natural justice.
31. In so far as the contention of the petitioner that no enquiry was conducted after the issuance of the Show Cause Notice under Rule 3 (a) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules is concerned, a reading of Rule 3 (a) makes it clear that a separate enquiry is contemplated only when a punishment exceeding three years is proposed to be awarded. In other cases, no such enquiry is mandated. Since, the punishment awarded to the petitioner is stoppage of increment for three years without cumulative effect, there is no necessity to conduct a separate enquiry by framing articles of charge or appointing an Enquiry Officer prior to awarding the punishment. Therefore, the said contention raised on behalf of the petitioner is without any merit.
32. Though, it was contended on behalf of the petitioner that the award of punishment resulted in a reduction of pay, thereby affecting dearness allowance and other monetary benefits, causing financial hardship, it is to be noted that the punishment period is since long over, and the order itself clearly states that the punishment would not have any cumulative effect, the petitioner, having already come out of the said situation, cannot now claim that the punishment awarded was either harsh or disproportionate so as to shock the conscience of this Court warranting interference in exercise of its equitable jurisdiction.
33. Accordingly, the writ petition as filed is devoid of merit and is dismissed. Consequently, connected writ miscellaneous petitions are closed. There shall be no order as to costs.
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