A.Anbukudivendan Vs. the Director General of Police and ors. - Court Judgment

Excerpt:
[vinod k.sharma, j.] tamil nadu civil servants conduct rules 1973 - rule 20(1) -- the petitioner denied the allegation. the disciplinary authority accepted the report of the enquiry officer and dismissed the petitioner from service.  the review filed by the petitioner was dismissed. the petitioner has challenged the impugned order by submitting, that thiru. 6. the learned counsel for the petitioner vehemently contended, that the impugned order of punishment cannot be sustained as it was proved beyond doubt that the complaint against the petitioner was motivated in view of the registration of criminal case against thiru madakannu at b3 police station, prior to filing of complaint against the petitioner.prayer: this petition came to be numbered by transfer of o.a.no.6914 of 2001 from the file of the tamil nadu administrative tribunal, for issuance of a writ in the nature of certiorari, to set aside the order of punishment imposed by the second respondent vide proc.rc.no.117/25132/pr.n(1)/98 dated 27.12.1998 as confirmed by the first respondent vide rc.no.113672/ap.i(1)/99 dated 12.08.1999.o r d e r1. the petitioner while serving as constable in b3 fort police station (crimes), chennai, was served with charge memo p.r.no.41/97 alleging that he violated rule 20(i) of the tamil nadu civil servants conduct rules 1973, on the allegation that the petitioner along with mr.jesudoss, grade i constable had threatened one thiru madakannu, a scrap dealer who was apprehended under goondas act, and under threat, demanded bribe for rs.500/- (rupees five hundred only or rs.1000/- (rupees one thousand only) and in this process, collected more than rs.6,000/- (rupees six thousand only) as bribe.2. the petitioner denied the allegation. the competent authority does not agree with the explanation of the petitioner and appointed an enquiry officer to look into the charges. the disciplinary authority accepted the report of the enquiry officer and dismissed the petitioner from service.3. however, on appeal, the appellate authority modified the punishment to reduction of time scale of pay by two stages for one year with cumulative effect, and reinstated the petitioner in service. the review filed by the petitioner was dismissed.4. the petitioner has challenged the impugned order by submitting, that thiru. madakannu, a scrap merchant was dealing with the stolen articles and selling it through mr.dhanam. a criminal case cr.no.583/97 was registered against him at b3 police station by the sub-inspector of police on 28.6.1997 i.e. 16 days prior to filing of complaint against the petitioner. therefore, the complaint was motivated, as the petitioner was assisting the sub-inspector of police in investigation of the case and the sub inspector had sent the petitioner with mr.jesudoss to bring mr.madakannu to police station.5. it is the submission of the petitioner that in the enquiry, mr.madakannu was examined as p.w.1, who did not support the case of the prosecution, as he denied having paid any money to the petitioner and further denied that any bribe was demanded.6. the learned counsel for the petitioner vehemently contended, that the impugned order of punishment cannot be sustained as it was proved beyond doubt that the complaint against the petitioner was motivated in view of the registration of criminal case against thiru madakannu at b3 police station, prior to filing of complaint against the petitioner.7. it is also the contention of the learned counsel for the petitioner, that the findings of the enquiry officer are perverse on the face of record, as mr.madakannu, p.w.1, during his cross examination categorically admitted, that no money was paid or demanded by the petitioner.8. similarly, the president of scrap merchants association, i.e. mr.danam, p.w.2 in his statement deposed that he did not know the petitioner at all, and also admitted that he had filed the complaint at the behest of mr.madakannu and there was no truth in the complaint.9. the other witnesses also did not supported the prosecution version rather it was admitted that the petitioner had not threatened thiru madakannu nor used filthy language against him.10. the contention of the learned counsel for the petitioner is that the finding of the enquiry officer holding that the charge of petitioner having demanded the bribe and used filthy language was proved, is perverse, therefore cannot be sustained in law.11. the writ petition is opposed by the learned special govt. pleader, by contending that the complaint against the petitioner was received from the tamil nadu iron, brass, plastic merchant association to the effect that the petitioner and his associate namely mr.jesudoss were frequently harassing mr.madakannu a petty trader in iron, brass and extracting money from him by threatening that he will register a case against him under goondas act. it was due to the grave charge of misconduct, the petitioner was dealt with under rule 3(b) of tamil nadu police subordinate service (disciplinary & appeal) rules 1955. the enquiry was fairly conducted where opportunity was given to the petitioner to defend himself. it was on the appreciation of evidence that the enquiry officer recorded a positive findings that while the department has failed to prove the impugned transaction, but at the same time, the charge of frequenting mr.madakannu and using filthy language was proved beyond doubt.12. on consideration, i find that this writ petition deserves to succeed. the petitioner in the affidavit had categorically stated that the prosecution witnesses had not supported the case of the prosecution. this specific averment has not been denied in the counter, and that there is only a vague denial.13. it is well settled that the averment which is not specifically denied, is deemed to be admitted. in order to verify the averments of the petitioner in support of the writ petition, the respondents/state was directed to produce the enquiry file on 19.04.2012. the respondents failed to comply with the order and made a request for further time. the case was adjourned to 11.06.2012 (today). again, the enquiry file has not been produced, therefore, an adverse inference can be drawn against the respondents.14. otherwise also, the reading of the finding itself shows that the prosecution witnesses had not supported the allegations against the petitioner, as the complainant himself had denied the allegation of demand of bribe or payment of any amount.15. once the prosecution case was disbelieved, there was hardly any reason to hold that the thiru madakannu was harassed by the petitioner or any filthy language was used against him in view of the proved facts that there was motive with thiru madakannu to falsely implicate the petitioner due to pendency of criminal case against him, in which the petitioner was assisting the sub inspector.16. even otherwise for non production of enquiry file by the state, an adverse inference deserves to be drawn against the respondents.17. the contentions raised by the learned counsel for the petitioner are borne out from the record, therefore, deserves to be accepted, as it is proved that the finding of the enquiry officer are perverse being outcome of misreading of evidence and contrary to positive admission of the prosecution witnesses.18. in view of the un-controverted pleadings, the impugned order can be safely said to be arbitrary and perverse, being passed without any evidence, therefore, cannot be sustained in law.19. consequently, this writ petition is allowed and the impugned order of punishment in to reduction of time scale of pay by two stages for one year with cumulative effect is quashed. the petitioner shall also be entitled for the consequential benefits.no costs.