Judgment:
1. The petitioners have challenged the final orders passed by the Government under disciplinary proceedings, imposing minor punishment of stoppage of increment for three years with cumulative effect, by rejecting the appeals filed against the original orders of punishment.
2. The petitioner in W.P.No.26611 of 2007, who was appointed as a Grade II Police Constable on 17.11.1988 in the Chennai City Armed Reserve, was on deputation to Crime Branch CID Headquarters from 01.01.1996 to till date and thereafter, promoted as Grade-I Police Constable in the year 1995 and further promoted as Head Constable in the year 1998.
3. Likewise, the petitioner in W.P.No.26612 of 2007 also joined the service as Grade II Police Constable on 15.9.1976 in Chennai City Armed Reserve and he was deputed to Crime Branch CID Headquarters from 08.10.1986 and promoted as Grade I Police Constable on 31.07.1994.
4. Similarly, the petitioner in 26613 of 2007, entered in the Police Department as Grade II Police Constable on 27.02.1986 in the Chennai City Armed Reserve and he was deputed to Crime Branch CID Headquarters from 1991-2004 and promoted as Grade I Police Constable in November, 1997.
5. The petitioner in W.P.No.26952 of 2007 also entered in the Police Department as Grade II Police Constable in the year 1981 and on deputation, he was serving in the Crime Branch CID till the date of filing the writ petition and he was upgraded as Grade I Police Constable in the year 1995.
6. It is stated that when they were working under Thiru Kuppusamy, Deputy Superintendent of Police who was in charge of Counterfeit Currency Wing of Crime Branch, on 10.10.1997, the petitioners headed by the Inspectors of Police, Tvl. Sivaraman and Packiaraj, arrested notorious criminal Sukumaran in connection with counterfeit currency offence. When he attempted to escape, minimum force was used resulting in injuries on him and he ultimately died on 11.10.1997 on the way to Apollo hospitals, due to head injuries stated to have been caused by a fall in the toilet of CBCID Office.
(a) An enquiry under Police Standing Order 145 was conducted, in which 26 witnesses were examined by the P.A. to Collector and a report was submitted on 23.1.1998 and again, another report was submitted on 6.4.1998, holding that the said Sukumaran died due to head injuries sustained by him due to fall in the bathroom at the time of escape and that the police personnel were not responsible for his death.
(b) In the enquiry before the Revenue Divisional Officer, the petitioners were also examined as witnesses. The deceased Sukumaran was a dismissed police constable, who was already convicted for counterfeiting revenue stamps. He was arrested for the offence committed in crime No.727/97 of Selaiyur Police Station for counterfeiting and circulating currency notes apart from crime No.21/97 on the file of Crime Branch CID. It is stated that while he was apprehended, he attempted to escape near Kundrathur bus Stand on 10.10.1997 at 9 am. and he fell down sustaining injuries in the head and when he was caught, he resisted and tried to assault the policemen to escape again and hence, minimum force was used and by that time, the Inspector of Police, Sivaraman came to the spot and the accused was tied up with a nylon rope and taken to the Kunrathur Police Station and he was interrogated by the Deputy superintendent of Police, Thiru Kuppusamy and search was effected and there was no injury found on his person.
(c) It is stated that on arrest, the accused admitted the guilt, however, in the midnight on 10/11.10.1997, the accused had respiratory problem and in order to save him, some police constables along with the Deputy Superintendent of Police went in search of a hospital at Chindadripet, Chennai. It is stated that the Deputy Superintendent of Police and others rushed the accused to Santhosh Hospital, Egmore, Chennai and on examination, he was found to be in serious condition and advised to take to Apollo Hospitals and when he was taken to Apollo Hospitals, the doctors declared that he brought dead.
(d) It is stated that the petitioners did not beat the accused and the death was caused due to his attempt to escape in Kundrathur Bus Stand and also due to the fall in the toilet on the fateful night and the same came to light in the enquiry conducted by P.A. to the Collector. In spite of the findings in two reports by P.A. to Collector, the Government, by G.O.Ms.No.1528 Public Law & Order Department, dated 21.9.1998, came to the conclusion that the accused was not sent for treatment to Government Hospital and the deceased Sukumaran did not sustain injuries when he was arrested in Kundrathur Bus Stand, but he was tortured in the CB CID Office, due to which he sustained injuries and died due to the injuries.
(e) Charge Memos were issued against the Deputy Superintendent of Police Kuppuswamy, Inspectors Sivaraman and Packiaraj, for failure of supervision and against the petitioners here for causing injuries. The charge memo was issued to the petitioners on 5.7.1999. The Superintendent of Police, NB CID was appointed as Enquiry Officer to conduct oral enquiry. It is stated that between 1999 and 2002, three different Enquiry Officers conducted the oral enquiry, wherein 16 witnesses were examined and number of documents were marked. It is stated that the enquiry, the report of P.A. to the Collector and the enquiry report of the Revenue Divisional Officer, based on which enquiry was started were not served on the petitioners.
(f) After the enquiry was completed, the Enquiry Officer did not request for written statement of defence and the Enquiry Officer prepared a report and held that the charges against the petitioners were proved. The Enquiry Officer found that the petitioners were responsible for the death of the deceased and submitted the report on 24.6.2002. A copy of the Enquiry Officers report was furnished to the petitioners on 12.11.2002, with a direction to the petitioners to submit further representation.
(g) As early as in January,2003, that is, after one year, the Government passed the impugned order on 7.1.2004, holding that the charges against the petitioners were proved and imposed the punishment of stoppage of increments for three years with cumulative effect. It is stated that in respect of the Deputy Superintendent of Police, Thiru Kuppuswamy, orders were passed on 28.9.2004, imposing a punishment of stoppage of increment for one year with cumulative effect and in respect of Inspectors of Police, Tvl. Sivaraman and Packiaraj, no orders have been passed. The petitioners preferred appeal to the Government against the punishment by making memorandum dated 11.3.2004. Since no orders were passed, the petitioners were constrained to approach this Court by filing writ petitions, in which directions were given to pass orders on the appeals filed by the petitioners dated 11.3.2004 within eight weeks and after a lapse of eight months from the date of direction given by this Court, the Government passed the impugned orders rejecting the appeals confirming the punishment imposed originally.
(h) It is against both the orders, the petitioners filed the present writ petitions on various grounds including that the orders are not speaking orders and they are only the reproduction of charges and the findings of the enquiry; that the orders were passed with non-application of mind; that the rejection of appeals is sought to be set aside based on the judgments of the Supreme Court; that the petitioners were not furnished with copies of reports of P.A. to Collector and the report of Revenue Divisional Officer; that the prosecution witnesses during the time of enquiry, especially P.W.2, P.W.6, P.W.8 and P.W.9, denied the incident of torture, but only stated that the deceased had fallen in the toilet and it was only on hearing the noise, the petitioners rushed to the place; that the procedures followed by the Enquiry Officer are unknown to law, since the Enquiry Officer did not choose to seek for further statement of defence from the petitioners after the enquiry was over under Police Standing Order 79 and Rule 3(b)(2) of Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules; that the wife of deceased, in her statement immediately after the occurrence in the enquiry under PSO 145, had denied having seen her husband beaten up by the police, but she gave totally a different version in the oral enquiry; that there has been an inordinate delay in initiation, commencement and conclusion of the disciplinary proceedings; that as per rule 9(A) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules, the disciplinary authority should be the highest official and a common enquiry has to be conducted and in respect of the petitioners, the orders were passed on 7.1.2004 and for Deputy Superintendent of Police it was passed in September, 2004 and in respect of Inspectors of Police, orders are yet to be passed; that the punishment imposed on the petitioners was excessive and that while the Deputy Superintendent of Police was imposed with a lesser punishment and the Inspectors of Police have not been punished till date, the petitioners were targetted and it is violative of Article 14 of the Constitution of India and it is against the principles of natural justice, apart from raising many other grounds.
7. In the common counter affidavit filed by the respondent, it is stated that when the accused attempted to escape at the time of his apprehension, minimum force was used and he sustained injuries due to the force used by the police during interrogation and on 11.10.1997 due to the head injuries, the accused died on the way to hospital. It is stated that the Deputy Superintendent of Police, Thiru Kuppuswamy and Inspectors of Police Thiru Sivaraman and Packiaraj were placed under suspension on 13.10.1997 and no such suspension order was issued against the petitioners.
(a) As per the report of enquiry under Police Standing Order 145, the Government issued orders in G.O.Ms.No.1528, Public (Law and Order) Department, dated 21.9.1998 that the accused was not sent for treatment to the Government Hospital and due to the torture by the police personnel the accused died. The Director General of Police was directed to deal with the Deputy Superintendent of Police under rule 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules and to deal with two Inspectors of Police and six police personnel under rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955. Accordingly, memos were issued to the petitioners under rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules in PR. Nos.10/99, 13/99, 14/99 and 12/99 dated 5.7.1999 respectively.
(b) The petitioners preferred oral enquiry and therefore, the Superintendent of Police, Narcotic Intelligence Bureau, Crime Investigation Department, Chennai was nominated to conduct the oral enquiry, which was commenced on 27.4.2000 and ended on 1.4.2002. It is stated that different officers who were posted as Superintendent of Police, Narcotic Intelligence Bureau, Crime Investigation Department conducted the oral enquiry from 1999 to 2002 and the report of the Enquiry Officer was filed, wherein it was found that the petitioners were guilty and responsible for the death of the deceased and the report was given to the Government on 24.6.2002.
(c) It is stated that the Government furnished a copy of the enquiry report to the petitioners and other delinquents on 12.11.2002 and thereafter, the Government imposed the punishment of stoppage of increments for three years with cumulative effect on the petitioners. Aggrieved by the same, the petitioners filed appeals and also writ petitions before the High Court challenging the punishment and ultimately, a direction was given by the High Court to dispose of the appeals filed by the petitioners and after examination, the Government passed the impugned orders on 26.3.2007.
(d) It is stated that the Government has carefully considered the records before passing the orders and as appellate authority, it has gone into the appeals properly and in fact, when the appeals were filed, they were sent to the Director General of Police for remarks who, in turn, sent the same to the unit Police Officers. It is stated that the delay in passing the orders by the Government was only administrative in nature. (e) It is stated that on merits of the matter, the enquiry report was approved wherein it was stated that the deceased sustained 12 wounds when he was kept in custody of Crime Branch Criminal Investigation Department and he was not subjected to proper medical treatment at appropriate time and the deceased was tortured by the police.
(f) It is stated that it is not mandatory to furnish a copy of the Police Standing Order 145 report submitted by the P.A. to the Collector. It is submitted that the statements recorded in the enquiry under Police Standing Order 145 were furnished to the petitioners and therefore, there is no violation of the principles of natural justice. It is stated that the witnesses who were examined by the Revenue Divisional Officer were examined during the enquiry and prosecution witness No.1, the wife of deceased, has clearly stated that the deceased was beaten up by the crime branch police.
(g) It is also stated that the prosecution witnesses Dr.Manohar and Dr.Shanthakumar have also stated that the death was due to the torture and the evidence of the witnesses cannot be simply thrown out. What is recorded in the oral enquiry is an additional statement and that cannot be stated as an afterthought. It is stated that the prosecution witness No.1, the wife of deceased in her additional statement has stated that she saw the police personnel beating her husband and hence, there is no violation of rules in recording her additional statement in the oral enquiry.
(h) It is stated that the statement of prosecution witness No.1, Gnanambal in the oral enquiry is maintainable according to law and there is a provision in disciplinary proceedings to record additional statement. It is stated that the charges leveled against the petitioners are grave in nature and it amounts to police excess and the petitioners are collectively responsible. It is also stated that no evidence or proper eye-witness is required for departmental proceedings.
(i) It is stated that the Enquiry Officer arrived at just conclusion that the injuries on the body of the deceased were only after his arrest in Kundrathur and before the deceased was brought to Crime Branch Criminal Investigation Department Office for enquiry. It is stated that as suggested by the doctor who conducted postmortem, the injuries except 11 and 12, were not been visible for naked eyes.
8. It is the main contention of Mr.K.Venkatramani, learned senior counsel for the petitioners in all these cases that when the occurrence took place in the year 1997, final orders were passed in the year 2004, imposing punishment and orders in the appeals were passed in the year 2007 and for the delay, there is no proper explanation. According to him, the evidence of Gnanambal, wife of the deceased should not have been taken as additional evidence, since at the earliest point of time, when P.A. to the Collector conducted enquiry under Police Standing Order 145, she had deposed clearly that she has not seen the police beating her husband, and therefore, in the absence of such evidence, the statement recorded before the Enquiry Officer cannot be taken as additional evidence and the same is not permissible in law and it should be taken as a case of no evidence and the findings should be held as perverse. It is his further contention that the orders passed by the Government are only the narration of various charges and explanations, and the Government abruptly came to the conclusion that the charges are found proved without assigning any reason. According to the learned senior counsel, the non-speaking orders are to be set aside. He would rely upon the judgments of the Supreme Court in Kranti Associates Private Ltd., and another vs. Masood Ahmed Khan and others [(2010) 9 SCC 496] and Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank vs. Jagdish Sharan Varshney and others [(2009) 4 SCC 240]. It is also his case that the charges are vague in nature and therefore, the Court should interfere and set aside the orders of punishment. In this regard, he relied upon the judgment in Committee of Management, Kisan Degree College vs. Shambhu Saran Pandey and others [(1995) 1 SCC 404]. He would submit that non-furnishing of the report of P.A. to the Collector in the enquiry conducted under Police Standing Order 145 and the report of the Revenue Divisional Officer is fatal to the case of the respondent. He would also submit that the non-examination of Enquiry Officer who acted prejudicial to the interest of the delinquents is fatal to the case of the respondent, by relying upon the judgment in Union of India vs. Naman Singh Shekhawat [(2008) 1 SCC (L&S) 1053]. According to him, the action of the Enquiry Officer in putting questions, as it is seen in the enquiry report, is not permissible in law and for that, he would rely upon the judgment of the Supreme Court in Moni Shankar vs. Union of India and another [(2008) 3 SCC 484].
9. On the other hand, it is the contention of the learned Government Pleader, who has submitted his written arguments apart from making oral submission, that the impugned orders cannot be said to be non-speaking orders and in fact, the report of the P.A. to the Collector and the report of Enquiry Officer and the statements recorded have been considered. In respect of the ground of laches, it is his submission that the death occurred on 11.10.1997 and the P.A. to the Collector conducted enquiry under Police Standing Order 145 and submitted his report on 23.1.1998 and thereafter, the Revenue Divisional Officer arrived at a decision that the police personnel are responsible for the death of Sukumaran and asked the Director General of Police to deal with the Deputy Superintendent of Police under rule 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules and to deal with Inspectors of Police and other police personnel under rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 and thereafter, charge memos were issued on 5.7.1999 and the Superintendent of Police, Narcotic Intelligence Bureau, Crime Investigation Department, Chennai, who is the higher authority of all the delinquent officers, was appointed as Enquiry Officer. It is submitted that it was due to the non-cooperation of the delinquents in conducting the enquiry and due to change of officers because of transfer, there was administrative delay and after the report of Enquiry Officer was received and after the further representations from the petitioners, the Government passed orders on 7.10.2004 and therefore, the delay is attributable to the delinquents. As far as non-furnishing of the report of Enquiry Officer is concerned, it is his submission that it is not mandatory under the Police Standing Orders to furnish to the petitioners such a copy. However, it is stated that copies were furnished to the petitioners and therefore, according to him, there is no violation of the principles of natural justice. While dealing with the other point that the punishment is exorbitant, he submitted that the question of public interest is involved in this case and the question of human rights is also involved in the matter of dealing with the accused and therefore, taking note of all the circumstances, the punishment was awarded which cannot be said either perverse or illegal.
10. I have considered the submissions of learned counsel for both the parties and given my anxious thoughts to the issues involved in this matter.
11. The charges which have been framed against the petitioners on 5.7.1999 are as follows:
VERNACULAR (TAMIL) PORTION DELETED
12. The charge sheet also contains the particulars regarding various witnesses numbering 15 and it includes the report of the P.A. to the Collector. It is seen that the Enquiry Officer who has conducted the enquiry is the Superintendent of Police, Narcotic Intelligence Bureau, Crime Investigation Department, Chennai, as per Rule 9A of the Tamil Nadu Police Subordinate Service Rules, since apart from the petitioners, who are Grade I Police Constables, two Inspectors of Police and a Deputy Superintendent of Police were also involved. The Enquiry Officer conducted the enquiry and the petitioners were given opportunity to cross-examine various witnesses ad ultimately his report was furnished to the Government and copy of the enquiry report was also furnished to the petitioners with a direction to furnish further explanation and further explanation was also given and thereafter, the impugned orders were passed. Therefore, the charges cannot be said to be vague. It can also be concluded that the enquiry was conducted after giving due opportunity to the petitioners and there was no violation of the principles of natural justice.
13. Even though the petitioners have attempted to say that copy of report of P.A. to the Collector in the enquiry under Police Standing Order 145 has not been served to them, it is seen that the said copy has been forwarded to the petitioners. Before the Enquiry Officer, the wife of the deceased has given evidence and she was subjected to cross-examination, and the P.A. to the Collector in the enquiry under Police Standing Order 145, has only recorded the statement of wife of the deceased. Even though the wife of deceased has not stated anything about the injuries on the deceased in the enquiry by the P.A. to the Collector, it is not fatal to the case of respondent because, at the time of enquiry by the P.A. to the Collector, the matter was only at the preliminary stage and only the statement of wife of the deceased was recorded by the P.A. to the Collector and further, it is not even the case of the petitioners that the said P.W.1 (wife of the deceased) was not allowed to be cross-examined by them before the Enquiry Officer. The mere statement of Gnanambal, wife of the deceased in the enquiry conducted by the P.A. to the Collector that when she met her husband in CB CID Office, he did not inform her that he was beaten by the police, itself is not a bar for her during the duly constituted enquiry, to give evidence wherein she has stated otherwise. It is relevant to point out that even during the enquiry under Police Standing Order 145, she has only stated that her husband has not spoken anything to her when she saw him in CB CID Office.
14. Be that as it may, while deciding about the validity or otherwise of the report of Enquiry Officer, exercising jurisdiction under Article 226 of the Constitution of India, it is not for this Court to reappreciate the evidence unless it is brought to the notice that there is a perverse finding. What is submitted by the learned senior counsel would have been correct, if, in the course of enquiry, while examining PW1, the petitioners were not allowed to cross examine her. But, that is not the case here. Merely because at the earliest point of time, P.W.1 has not stated anything about the injuries sustained by her husband, that itself does not prevent her to speak all the things before the duly constituted enquiry. In the absence of any specific bar that during the time of enquiry no evidence would be adduced in cases where a report was already filed in the enquiry conducted under Police Standing Order 145, it is not possible to accept the contention of the learned senior counsel that the evidence of P.W.1 before the Enquiry Officer has to be brushed aside.
15. Be that as it may, as stated earlier, it is not for this Court to analyse the evidence again, except to state that the evidence recorded by the Enquiry Officer is exhaustive, and it can never be decided as a perverse enquiry and it cannot be held to be a case of no evidence.
16. Coming to the next point raised by the learned senior counsel for the petitioners about the validity of the impugned orders, it is his contention that the impugned orders were passed by the Government without application of mind. It is his contention that under the impugned order dated 7.10.2004, the respondent Government only narrated the charges, findings of the Enquiry Officer and the further explanation of the delinquent officers and ultimately stated as follows:
3. Government have carefully and independently examined the case with relevant records and decided that the charge framed against Thiru a.Thangaraj, Head Constable has been held as proved. For the proved charge the Government have proposed to impose the punishment of stoppage of increment for a period of 3 years with cumulative effect. Accoridngly the Government direct that the punishment of stoppage of increment for a period of 3 years with cumulative effect be imposed on Thiru A.Thangaraj, Head Constable for the proven change.
17. The question is, whether this can be treated as total non-application of mind. It is not a case where the Government without referring to the findings of the Enquiry Officer, has bluntly come to the conclusion that the charges are proved and imposed the punishment. The Government has categorized in clear terms about the findings of the Enquiry Officer. The Government has also considered the medical certificate and the evidence of Medical Officers, especially P.Ws.13 and 14 who have categorically stated that the twelve injuries on the deceased should have been caused only at the time of interrogation by the police. Such clinching evidence has been given in the duly constituted enquiry and that has been narrated and considered in the impugned orders. The Government has stated that the case has been independently dealt with by going through the relevant records and thereafter, it has been found that the petitioners are guilty and hence, it cannot be said that there is total non-application of mind on the part of the Government.
18. By narrating the Enquiry Officer s report and after considering the same, if an order is passed, even though it is a crisp order, in my considered view, it cannot be said to be a non-speaking order. The judgment relied upon by the learned senior counsel for the petitioners in Kranti Associates Private Ltd., and another vs. Masood Ahmed Khan and others [(2010) 9 SCC 496], in my considered view, has no application to the facts of the present case. That was a case, where the National Commission under the Consumer Protection Act dismissed the revision filed against the order of State Commission in the following words:
Heard.
In view of the concurrent findings of the State Commission, we do not find any force in this revision petition.
The revision petition is dismissed.
It was, considering the jurisdiction of the National Commission under the Consumer Protection Act as a quasi-judicial authority, the Honble Apex Court found a distinction between the quasi-judicial authority and final decision and ultimately held that such distinction has vanished in the course of time and a speaking order has to be passed. The relevant portion of the judgment is as follows:
12. The necessity of giving reason by a body or authority in support of its decision came up for consideration before this Court in several cases. Initially this Court recognised a sort of demarcation between administrative orders and quasi-judicial orders but with the passage of time the distinction between the two got blurred and thinned and virtually reached a vanishing point in the judgment of this Court in A.K.Kraipak vs. Union of India (1969 (2) SCC 262).
The Supreme Court having held that the reasoning is indisputable component of decision making process, issued the following principles:
47. Summarising the above discussion, this Court holds:
(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in support of its conclusions.
(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
(e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.
(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior courts.
(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial accountability and transparency.
(k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or rubber-stamp reasons is not to be equated with a valid decision-making process.
(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor)
(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain EHRR, at 562 para 29 and Anya v. University of Oxford, wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, adequate and intelligent reasons must be given for judicial decisions.
(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, equirement of giving reasons for the decision is of the essence and is virtually a part of due process.
Applying the dictum laid down by the Honble Apex Court to the facts of the present case and also by applying the principle of res ipsa loquitur, meaning thereby that the fact itself speaks, it is seen that the experts evidence (PWs.13 & 14) makes it abundantly clear that the charges have been proved against the petitioners. In my considered view, the impugned orders cannot be said to be, the orders without any reason.
19. The judgment relied upon by the learned senior counsel for the petitioners in Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank vs. Jagdish Sharan Varshney and others [(2009) 4 SCC 240] enumerates the celeberated concept that there must be something in the order to show that there has been application of mind by disclosing reason, even if it is brief, since that is an affirmation order. The Supreme Court has held as follows:
5. In our opinion, an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. In fact, the said decision in Prabhu Dayal Grover case2 has itself stated that the appellate order should disclose application of mind. Whether there was an application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reasons at all. That order must contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while affirming the order of the disciplinary authority.
Applying the above ratio laid down to the facts of the case, it is not a case where there is total non-application of mind.
20. Again, the judgment of the Supreme Court relied upon by the learned senior counsel inCommittee of Management, Kisan Degree College vs. Shambhu Saran Pandey and others[(1995) 1 SCC 404] has no application to the facts of the present case. That was a case filed against the order of dismissal of Principal from a college, who was denied at the earliest point of time the right of inspection of documents mentioned in the charge sheet. But, on the facts of the present case, the petitioners sought for only the report in the preliminary enquiry conducted by the P.A. to the Collector under Police Standing Order 145 and that had in fact been served on the petitioners. So also, the judgment in State of U.P. and others vs. Ramesh Chandra Mangalik [(2002) 3 SCC 443] has no application to the facts of the present case. As elicited above, the charges against the petitioners cannot be said to be vague.
21. Again, it is not as if the Enquiry Officer examined the witnesses in chief. On the reading of the report of the Enquiry Officer, there is nothing to presume that the Enquiry Officer himself has acted as presenting officer and he has conducted the examination of witnesses in chief. In any event, the judgment of the Supreme Court in Moni Shankar vs. Union of India [(2008) 3 SCC 484] relied upon by the learned senior counsel relates to a case where major punishment of dismissal was imposed and where the Enquiry Officer himself acted as presenting officer. In those circumstances, the Supreme Court held as follows:
19. We have been taken through the evidence of Shri S.B. Singh by Dr. Padia. Significantly the examination-in-chief was conducted by the enquiry officer himself. As the proceeding was for imposition of a major penalty, why the presenting officer, who must have been engaged by the Department, did not examine the witness is beyond any comprehension. Even the minimum safeguard in regard to the manner in which examination-in-chief was conducted has not been preserved. The questions posed to him were leading questions. It is interesting to note that in answer to a question as to whether he had asked the appellant to return Rs.5, he not only answered in the negative but according to him the said statement was made by him as instructed by the Vigilance Inspector. He although proved Exhibits P-1 and P-2 which were written in English language but also stated that he did not know what had been written therein. Strangely enough, the enquiry officer started re-examining him. Even in the re-examination he accepted that he could not read and write English.
22. Apart from the fact that there is nothing to conclude that the Enquiry Officer has himself acted as presenting officer and taken the chief-examination, the punishment imposed is only minor punishment, in the present case, and therefore, I do not accept the contention of the learned senior counsel for the petitioners that the procedure adopted by the Enquiry Officer, on the facts of the present case, should be held to be fatal. In the absence of any bias on the part of the respondent-Officer, again, the judgment of the Supreme Court in Union of India vs. Naman Singh Shekhawat [(2008) 1 SCC (L&S)1053] has no application to the facts of the present case.
23. Further, the contention of the learned senior counsel about the proportionality of punishment is also not tenable. The punishment imposed on the petitioners is only a minor punishment.
24. As far as the delay is concerned, the delay is certainly fatal, if it is not explained and the same is detrimental to the delinquents. It is the case of the respondent that the delay is because of frequent change of Enquiry Officer and I am able to see some justification in it. By applying rule 9A of the Tamil Nadu Police Subordinate Service Rules, since higher officials were involved, the Superintendent of Police, Narcotic Intelligence Bureau, Crime Investigation Department, Chennai was appointed as Enquiry Officer who is stated to have been frequently changing and due to that reason, there has been some delay and in fact, it has been specifically stated that the delay is also attributable to the petitioners which is not denied by the petitioners. In such circumstances, I do not see that the delay is unexplained one and that the delay is fatal to the disciplinary proceedings. The delay which is unexplained and detrimental to the interest of the delinquent alone enables this Court to interfere under Article 226 of the Constitution of India.
25. On the facts of the present case, certain reasons have been adduced for the delay such as, change of Enquiry Officer due to transfer and non-cooperation of the petitioners. Therefore, I do not propose to go into the question of delay, on the facts of the present case. It is true that the unexplained delay, if it is detrimental to the interest of the delinquent, is fatal to the punishment as well as the charges framed. In my view, the said celeberated concept is not applicable to the facts of the present case. Accordingly, I do not see any reason to interfere with the impugned orders passed by the Government and the writ petitions fail and the same are dismissed. No costs. Connected miscellaneous petitions are closed.