Saturday, June 29, 2013

police constable acused 498A, 304B on suicide of wife honourably aquitted by sessions court. HC orders reinstatement of service on acquittal. Honourable acquittal discussed . extent of punishment by department discussed


Additional notes
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* wife dies by consuming poisonous substance while she is at parental home
* father in law claims dowry harassment and hence dowry death
* parallel departmental inquiry starts
* petitioner dismissed from service
* sessions court appreciates evidence and gives honourable discharge
* honourable discharge & petitioner was not acquitted by giving benefit of doubt.
* There is no appeal pending against the judgment of acquittal,
* HC orders reinstatement of service on basic of acquittal.


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Judgement
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
                       
DATED : 22.04.2013

CORAM

THE HONOURABLE MR.JUSTICE S. TAMILVANAN

W.P. No.20298 of 2006







P.Sakthivelayuthasamy                    .. Petitioner

-vs-

The Commandant, T.S.P. IV Battalion,
Kovaipudur,
Coimbatore-42                        .. Respondent







    Writ petition filed under Article 226 of the Constitution of India, seeking an order in the nature of writ of certiorarified mandamus, calling for the records pertaining to the order, dated 06.08.2004 made in C.No.E3/PR-16/04 on the file of the respondent and quash the same and consequently, direct the respondent to reinstate the petitioner into service with back wages and other attendant benefits.




        For Petitioner    :         Mr.K.Venkatramani,
                        Senior Counsel
                        for Mr.M.Muthappan

        For Respondent    :         Mr.S.Navaneethan, AGP



O R D E R

Heard the learned Senior counsel appearing for the petitioner as well as the learned Additional Government Pleader appearing for the respondent.

    2. This writ petition has been filed under Article 226 of the Constitution of India, seeking an order in the nature of writ of certiorarified mandamus, calling for the records pertaining to the order, dated 06.08.2004 made in C.No.E3/PR-16/04 on the file of the respondent and quash the same and consequently, direct the respondent to reinstate the petitioner into service with back wages and other attendant benefits.

    3. It is not in dispute that the petitioner joined as Police Constable in Tamil Nadu Special Police IV Batallion, Kovaipudur, Coimbatore in the year 1999. According to the petitioner, he got married with one Kavitha on 10.03.2003 and due to the said wedlock, a female child was also born to them. After the delivery of the child, his wife committed suicide at her parental house, No.8, Kannanur Mariamman Kovil Street, Elango Nagar, Coimbatore by consuming cow dung powder, a poisonous substance.

    4. Learned Senior counsel appearing for the petitioner submitted that even as per the prosecution, the occurrence had taken place at the parental house of the deceased Kavitha and at the time of consuming poison, the petitioner was not present, however, based on the complaint given by P.W.1, father of the deceased, case was registered under Section 498 (A), 304 (B) and 506 IPC and Section 4 of Dowry Prohibition Act. After the trial, the petitioner was acquitted. According to the learned Senior counsel appearing for the petitioner, it is only a honourable acquittal, as the petitioner was not acquitted by giving benefit of doubt. There is no appeal pending against the judgment of acquittal, dated 22.09.2005 made in Sessions Case No.40/2005 on the file of the Sessions Court, Coimbatore.

    5. It is seen from the copy of the judgment, dated 22.09.2005 rendered by the Sessions Court, Coimbatore that the alleged occurrence had taken place only at Door No.8, Kannanur Mariamman kovil street, Elango Nagar, Coimbatore, which is the parental home of the deceased.

    6. Learned Sessions Judge, recorded acquittal on the ground that the charges levelled against the petitioner as accused in the sessions case was not established by the prosecution. Learned Additional Government Pleader appearing for the respondent has not disputed the fact that the sessions case ended in acquittal.

    7. On the aforesaid circumstances, the only point for determination is whether the dismissal of the petitioner from service, in view of the pendency of the sessions case is sustainable in law.

    8. As contended by the learned Senior counsel appearing for the petitioner, the charges levelled against the petitioner in the departmental enquiry are (1) the petitioner had earned bad reputation to the police department, in view of the criminal case registered against him (2) though the petitioner had approached this Court and got Anticipatory Bail and appeared regularly before the concerned police, as directed by this Court, the same was not intimated to the respondent, which would be suppression of facts and disobedience in the police department and (3) that the petitioner appeared before the Revenue Divisional Officers in the enquiry conducted pertaining to towards the alleged dowry death of his wife, but not intimated about the same to the respondent.

    9. As per the copy of the judgment rendered by the Sessions Court, it is seen that the petitioner, who was the accused in the criminal case, had asked P.W.1, father of the deceased, to send the petitioner's wife and child to his house on completion of one month, after his delivery. Though P.W.1 had agreed to send her with the child, he said he would send her after some time, for which the petitioner / accused scolded P.W.1 by saying that he would take back his wife and the child on the next day morning and he asked him to do whatever he would like. As per the judgment of the Sessions Court, it is made clear that the deceased Kavitha consumed cow-dung-powder, a poisonous substance, at her parental house in the absence of the petitioner herein. Hence, the learned Sessions Judge, recorded acquittal on all the charges framed against the petitioner herein and he was not merely acquitted by giving benefit of doubt.

    10. Mr.K.Venkatramani, learned Senior counsel appearing for the petitioner argued that criminal case was registered against the petitioner solely based on the complaint made by the defacto complainant, father of the deceased, as there was no prima facie case made out against the petitioner to prosecute him under Section 498(A), 304-B and 306 IPC and Section 4 of Dowry Prohibition Act. Learned senior counsel contended that the alleged occurrence had admittedly taken place only at the parental house of the deceased, wife of the petitioner herein and at the time of consuming cow-dung- powder by the deceased, the petitioner was not present, hence, it cannot be said that the deceased, due to dowry harassment, had committed suicide. As found by the learned Sessions Judge, there is no evidence to establish that it was dowry death, punishable under Section 304 B IPC. It is also not known as to how the act of consuming cow-dung-powder by the deceased was not prevented by her father and his other family members, though she was in her parental home. There was no allegation of dowry harassment by the petitioner, prior to the occurrence. On the available evidence, the learned Sessions Judge, held that the prosecution has not established any offence against the petitioner / accused.

    11. It was further argued by the learned senior counsel for the petitioner that there was no allegation of dowry harassment so as to attract Sections 498(A) and Section 4 of Dowry Prohibition Act and hence, the acquittal recorded by the Sessions Court, Magalir Neethimandram, Coimbatore has to be construed only as honourable acquittal, as there is no adverse finding against the petitioner in the Judgment. 

    12. In support of his contention, learned senior counsel appearing for the petitioner relied on the decision in Capt. M.Paul Anthony vs Bharat Gold Mines Ltd. and another reported in 1999 3 SCC 679, in para 34, it has been held as follows:

>"34. ... As pointed out earlier, the criminal case as
>also the departmental proceedings were based on
>identical set of facts, namely, "the raid conducted at
>the appellant's residence and recovery of
>incriminating articles therefrom". The findings
>recorded by the enquiry officer, a copy of which has
>been placed before us, indicate that the charges
>framed against the appellant were sought to be proved
>by police officers and panch witnesses, who had raided
>the house of the appellant and had effected recovery.
>They were the only witnesses examined by the enquiry
>officer and the enquiry officer, relying upon their
>statements, came to the conclusion that the charges
>were established against the appellant. The same
>witnesses were examined in the criminal case but the
>Court, on a consideration of the entire evidence, came
>to the conclusion that no search was conducted nor was
>any recovery made from the residence of the appellant.
>The whole case of the prosecution was thrown out and
>the appellant was acquitted. In this situation,
>therefore, where the appellant is acquitted by a
>judicial pronouncement with the finding that the "raid
>and recovery" at the residence of the appellant were
>not proved, it would be unjust, unfair and rather
>oppressive to allow the findings recorded at the
>exparte departmental proceedings to stand."

It has been categorically held in the decision that when a criminal case and departmental proceeding are based on the same set of facts and similar witnesses were examined in both proceedings and the conclusion of the Court is that the alleged guilt has not been established against the accused, who is an employee, facing  departmental proceeding, it would be unjust and unfair to accept the departmental proceeding to punish the employee.

    13. **It is not in dispute that in the instant case, punishment imposed on the petitioner by the respondent is solely based on the pendency of the criminal case**.
Unless or otherwise, the charges, at least one of the charges against the petitioner under Sections 498(A), 304-B and 306 IPC or the demand of dowry under Section 4 of Dowry Prohibition Act is proved and ended in conviction, the respondent cannot hold that the petitioner is guilty of the offence for the removal of the petitioner from service. **Admittedly, the alleged delinquency against the petitioner is not relating to the official duty of the petitioner**. The charges were framed against the petitioner (1) in view of the criminal case pending against him before the criminal court, the reputation of the police department was tarnished and (2) the petitioner had obtained Anticipatory Bail and appeared before the concerned police station, as directed by this Court and also attended the enquiry conducted by Revenue Divisional Officer, however, did not intimated the same to the respondent. Learned senior counsel appearing for the petitioner submitted that the Departmental proceeding is solely based on the pendency of the criminal case. Hence, the acquittal recorded has direct relevance in the Departmental proceeding.

    14. In the light of the decisions rendered by Paul Anthony's case, (cited supra) if it is a honourable acquittal, the respondent cannot impose a punishment of dismissal from service, holding that the charges levelled against the petitioner was proved. It is not in dispute that in a criminal case, the prosecution should establish the guilt beyond reasonable doubt, however, it is not required in a departmental proceeding, as the yardstick to decide the delinquency is only preponderance of probability. In the instant case, the Departmental proceeding is based on the pendency of the criminal case.

    15. In G.M.Tank vs State of Gujarat and others reported in 2006 (5) SCC 446, the Hon'ble Apex Court has held as follows:

>"30. ... It is true that the nature of charge in the
>departmental proceedings and in the criminal case is
>grave. The nature of the case launched against the
>appellant on the basis of evidence and material
>collected against him during enquiry and investigation
>and as reflected in the charge-sheet, factors
>mentioned are one and the same. In other words,
>charges, evidence, witnesses and circumstances are one
>and the same. In the present case, criminal and
>departmental proceedings have already noticed or
>granted on the same set of facts, namely, raid
>conducted at the appellants' residence, recovery of
>articles therefrom. The Investigating Officer
>Mr.V.B.Raval and other departmental witnesses were the
>only witnesses examined by the enquiry officer who by
>relying upon their statement came to the conclusion
>that the charges were established against the
>appellant. The same witnesses were examined in the
>criminal case and the criminal court on the
>examination came to the conclusion that the
>prosecution has not proved the guilt alleged against
>the appellant beyond any reasonable doubt and
>acquitted the appellant by its judicial pronouncement
>with the finding that the charge has not been proved.
>It is also to be noticed that the judicial
>pronouncement was made after a regular trial and on
>hot contest. Under these circumstances, it would be
>unjust and unfair and rather oppressive to allow the
>findings recorded in the departmental proceedings to
>stand."


    16. In Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh reported in 2004 (8) SCC 200, the Hon'ble Apex Court held as follows:

>".... The Bench was of the opinion that the acquittal
>by the criminal court was "honourable" as it was based
>on the fact that the prosecution did not produce
>sufficient material to establish its charge which was
>clear from the following observations found in the
>judgment of the criminal court:
>
>    "Absolutely in the evidence on record of the
>prosecution witnesses I have found nothing against the
>accused persons. The prosecution totally fails to
>prove the charges under Sections 147, 353, 329 IPC."'
>


    17. In Paul Anthony's case it was held that in the criminal case as well as in the domestic enquiry, if the evidence let in was one and the same and in case, the criminal case ended in acquittal in favour of the employee, that there is no legally acceptable evidence to convict him, the same is relevant in the domestic enquiry. Hence, the punishment of dismissal of the employee against the verdict of the criminal case would be unjust and unfair and rather oppressive. 

    18. In Ajit Kumar Nag v. G.M.(PJ) Indian Oil Corporation Ltd., reported in 2005 (7) SCC 764, this Court in para 11 held as follows:

>"11. As far as acquittal of the appellant by a
>criminal court is concerned, in our opinion, the said
>order does not preclude the Corporation from taking an
>action if it is otherwise permissible. In our
>judgment, the law is fairly well settled. Acquittal by
>a criminal court would not debar an employer from
>exercising power in accordance with the Rules and
>Regulations in force. The two proceedings, criminal
>and departmental, are entirely different. They operate
>in different fields and have different objectives.
>Whereas the object of criminal trial is to inflict
>appropriate punishment on the offender, the purpose of
>enquiry proceedings is to deal with the delinquent
>departmentally and to impose penalty in accordance
>with the service rules. In a criminal trial,
>incriminating statement made by the accused in certain
>circumstances or before certain officers is totally
>inadmissible in evidence. Such strict rules of
>evidence and procedure would not apply to departmental
>proceedings. The degree of proof which is necessary to
>order a conviction is different from the degree of
>proof necessary to record the commission of
>delinquency. The rule relating to appreciation of
>evidence in the two proceedings is also not similar.
>In criminal case, burden of proof is on the
>prosecution and unless the prosecution is able to
>prove the guilt of the accused 'beyond reasonable
>doubt', he cannot be convicted by a court of law. In a
>departmental enquiry, on the other hand, penalty can
>be imposed on the delinquent officer on a finding
>recorded on the basis of 'preponderance of
>probability'. Acquittal of the appellant by a Judicial
>Magistrate, therefore, does not ipso facto absolve him
>from the liability under the disciplinary jurisdiction
>of the Corporation. We are, therefore, unable to
>uphold the contention of the appellant that since he
>was acquitted by a criminal court, the impugned order
>dismissing him from service deserves to be quashed and
>set aside."

**    19. It is well settled that the term "honourable acquittal" in a criminal case is that the accused got acquittal, when there is no criminal offence made out or the prosecution failed to establish the charges and in such circumstances, the acquittal could be construed  as a honourable acquittal. ** If an accused is acquitted by giving benefit of doubt in favour of the accused that would not be construed as honourable acquittal and in such a case, the Department is empowered to take action independently against the employee, as per the evidence available in the enquiry proceeding.

    20. In the instant case, as argued by the learned senior counsel appearing for the petitioner, the charges framed under Sections 498(A), 304-B and 306 IPC apart from  Section 4 of Dowry Prohibition Act, as per the decision rendered by the Sessions Court, Magalir Neethimandram, Coimbatore, is that there was no prima facie case made out and there was no evidence available to convict the petitioner under Sections 498(A), 304(B) and 306 IPC and Section 4 of Dowry Prohibition Act. As the occurrence had taken place at the parental house of the deceased, admittedly, the petitioner, husband of the deceased was not present at the time of her consuming cow-dung- powder, it cannot be said that he caused dowry death, whereby committed offence punishable under Sections 304 (B) IPC or induced her to commit suicide, in order to be punished under Section 306 IPC.

    21. As per the judgment rendered by the Sessions Court, it is seen that the petitioner being the husband of the deceased went to the house of the defacto complainant who was none other than his father-in-law and father of the deceased and asked him to send his wife along with the child, for which the father of the deceased was not willing and he replied that he will send his daughter only after some time, for which the petitioner said that he would take back his wife and child on the next day morning, hence, it would not be a sufficient reason or cause for the deceased consuming cow-dung-powder.

    22. Earlier there was no allegation of dowry harassment and no evidence available to punish the petitioner / accused under Section 498(A) IPC and Section 4 of Dowry Prohibition Act, as found by the Sessions Court. Hence, he was acquitted on the ground that the charges levelled against him were not proved.

    23. Having considered the facts and circumstances and the evidence available on record, in the light of various decisions rendered by the Hon'ble Supreme Court, I am of the view that the acquittal recorded in favour of the petitioner has to be construed, as honourable acquittal and in this case, the departmental enquiry is not an independent proceeding, but the same is solely based on the criminal case, that was pending against the petitioner, however, that ended in acquittal. On the aforesaid circumstances, it cannot be said that the petitioner could be punished, on the ground that the delinquency was proved in the Departmental proceeding, though the criminal case ended in acquittal. Both the Departmental proceeding and criminal case were based almost on the same charges and the evidence adduced by the prosecution witnesses before the Sessions Court, hence, to meet the ends of justice, I find it just and reasonable to allow this writ petition and set aside the impugned order. The non-intimation of the anticipatory bail, appearance before the concerned police and the enquiry conducted by the Revenue Divisional Officer cannot be sufficient to dismiss the petitioner from service.

    24. In the result, the writ petition is allowed and the impugned order passed by the respondent is set aside and the respondent is directed to re-instate the petitioner with continuity of service and other benefits, within a period of four weeks from the date of receipt of a copy of this order. However, on the facts and circumstances of the case, it is made clear that the petitioner is not entitled to back-wages for the period of suspension, on the principle that "No work, no pay".  No order as to costs.








vga / tsvn

To

The Commandant,
T.S.P. IV Battalion,
Kovaipudur
Coimbatore 42