Saturday, July 27, 2013

Husband asks coffee. Wife refuses. So Husband makes coffee, sets off small fire by mistake. Husband dismissed !! has to run to HC.....and IF any of you think I'm joking, please read the case below


Moral of the story 
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* DON'T ask for coffee
* that MAY be considered DOMESTIC violence and / or flatly refused by wife 
* EVEN if wife just says go fix it yourself, do NOT !!
* because IF you set off an accidental fire while making coffee you MAY loose job and then you have to fight till High court to get back your job 
* and IF any of you think I'm joking, please read the case below 


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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS DOT NIC DOT IN SITE 
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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 13.10.2009

CORAM:

THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN

W.P.No.5811 of 2007


G.Kalidass ... Petitioner

Vs.


1.The Deputy Inspector General of Police
   O/o. The Deputy Inspector General of Police
   Ramanathapuram,
   Ramanathapuram District. 

2.The Superintendent of Police
   District Police Office
   Sivagangai, 
   Sivagangai District.                   ... Respondents
 



PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.3444 of 2002 from the file of Tamil Nadu Administrative Tribunal with a prayer to call for the records of the proceedings of the second respondent in P.R.No.64/2001 Rule 3(b) of TNPSS dated 23.02.2002 and order passed in appeal by the first respondent in his proceedings in C.No.B1/Appeal.12/2002 dated 11.4.2002 and quash the same with the consequential direction, directing the respondents to reinstate the applicant into service will all attendant and monetary benefits. 
For petitioner : Mr.V.Ravikkumar 

For respondents : Mrs.C.K.Vishnupriya 
Additional Government Pleader  
O R D E R

The Original Application in O.A.No.3444 of 2002 before the Tamil Nadu Administrative Tribunal (in short "the Tribunal") is the present writ petition.

2.The petitioner joined the services as Grade Police Constable on 23.12.1985. While so, a charge memo dated 15.09.2001 under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955, was issued against him, by the second respondent.  The following were the two charges made against him.  

"1) 1.9.2001 md;W jpUg;gj;J}h; ,e;jpad; t';fp fhg;g[ mYtyuhf fhiy 10.00 Kjy; 12.00 kzp tiu ghuh mYty; Koj;J ,uz;L kzp neuk; Xa;tpy; jpUk;g 14.00 kzpf;F mYtYf;F tuntz;oath; tuhky; M$hpd;ikahf ,Ue;J 19.50 kzpf;F jdp mwpf;ifa[ld; fhyjhkjkhf gzpf;F mwpf;if bra;j flik jtwpa fz;oj;jf;f Fw;wk;."

2) 1.9.2001 md;W ,ut[ 18.00 kzpf;F v!;.tp/k';fyk; fhtyh; muR FoapUg;gpy; jdJ kidtp Fhe;ijfis moj;J, nf!; mLg;gpy; kz;bzz;idia Cw;wp nfi! jpwe;Jtpl;L vhpj;J, mz;il tPl;lhh;fSf;F gaj;ij fpsg;gp fhty;Jiwf;F fs';fk; tpstpj;j xG';fPdkhd Fw;wk;."

3.The petitioner states that on 01.09.2009, he was on Guard Duty at the Indian Bank, Thirupattur.  He had gone for his lunch at 12.00 noon.  While so, he suffered acute stomach pain and therefore, he took rest for sometime.  Subsequently, he asked his wife to prepare coffee for him.  When his wife refused to prepare coffee, he got into the kitchen and proceeded to prepare coffee and tried to light gas stove, which accidentally ignited with uncontrolled flames. According to him, he did not set fire and it was not his intention to create fear among the neighbours.  In any event, it is stated that the aforesaid incident that happened in the kitchen did not bring bad name to the Police Department.  

4.An enquiry was conducted.  In the enquiry, 10 witnesses were examined and 11 documents were marked on the side of the Department.  The petitioner gave his defence statement.  The Enquiry Officer recorded his findings dated 17.01.2002.  In the said findings dated 17.01.2002, the Enquiry Officer found both the charges 1 and 2 were established.  After hearing the petitioner on the findings, the second respondent passed the order dated 23.02.2002, removing the petitioner from service.  


5.The petitioner preferred an appeal before the first respondent and the same was dismissed by the first respondent, by an order dated 11.04.2002.

6.The petitioner filed Original Application in O.A.No.3444 of 2002 (W.P.No.5811 of 2007) to quash the order dated 23.02.2002 of the second respondent and the order dated 11.04.2002 of the first respondent and for a consequential direction to reinstate him in service with back wages and all other benefits. 

7.Heard Mr.V.Ravikkumar, learned counsel for the petitioner and Mrs.C.K.Vishnupriya, learned Additional Government Pleader for the respondents. 

8.The learned counsel for the petitioner submits that the findings of the Enquiry Officer are totally perverse.  According to him, there is no legal evidence let in before the enquiry that the petitioner poured kerosene on the stove and that he created fear among the neighbours and that he brought disrepute to the Police Department.   

9.The learned counsel for the petitioner has taken me through the evidence.  The second witness examined in the enquiry was the wife of the petitioner.  She did not support the case of the Department.  She stated that there was a quarrel over the preparation of "RASAM".  She further stated that after sometime, he wanted coffee. She replied that he took meals only just now, for which, the petitioner got angry and he got into the kitchen to prepare coffee.  She further stated that for preparing coffee, he lighted the gas stove and that there was a fire in the kitchen.  Thereafter, she shouted and the others came and the fire was put off.  The evidence of the second witness was in favour of the defence.  But she was not treated as hostile and no cross examination was done by the Department. 

10.The third witness was the Sub-Inspector of Police of S.V.Mangalam Police Station.  He deposed in the enquiry that while he was on duty on 01.09.2001 at 07.00 p.m., the writer Mr.Ramalingam of the Police Station came and told him that there was some fire in the house of the petitioner.  He informed the fire service and also contacted the wireman of the Electricity Department.  He proceeded to the house of the petitioner and he found that there was a fire. There is nothing in his evidence that he deliberately set fire in the kitchen and there is nothing in his evidence that the neighbours were frightened due to the action of the petitioner. 

11.The fourth witness was Mr.Ramalingam, Writer of S.V.Mangalam Police Station.  He deposed that Tmt.Meenal W/o. Grade   Police Constable Mr.Vijayaraghunathan, came to the Police Station at 07.00 p.m. on 01.09.2001 and informed him that there was a fire in the house of the petitioner and that there was some quarrel between the petitioner and his wife.  Thereafter, he went to the scene of occurrence along with the Sub-Inspector of Police and that the Fire Service personnel extinguished the fire, when they reached the spot. 

12.The fifth witness was Tmt.Meenal, W/o. Grade   Police Constable Mr.Vijayaraghunathan.  The sixth witness was Tmt.Rajeswari, W/o. Head Constable Mr.Ramalingam.  The seventh witness was Tmt.Meenambal, W/o. Grade   Police Constable Mr.Ravindran.  The eighth witness was Tmt.Deivanai, W/o. Head Constable Mr.Masilamani.  The nineth witness was Tmt.Fathima Kani W/o. Head Constable Mr.Mohammed Sultan.  The witnesses 5 to 9 were all the residents of the police quarters.  On seeing the fire and also hearing the shouts from the wife of the petitioner, these people went to the residence of the petitioner and found that there was some fire in the kitchen.  Their depositions nowhere states that the petitioner deliberately set fire in the kitchen and that the petitioner had an intention to threaten the neighbours by causing fire.  The tenth witness was Mr.Srinivasan, wireman of Tamil Nadu Electricity Board.  He was not an eye-witness to the incident.  

13.Therefore, the learned counsel for the petitioner states that there is no evidence against him, particularly, regarding charge No.2.  It is also argued that the findings of the Enquiry Officer, does not give any reason for his conclusion except his ipse dixit.  The learned counsel for the petitioner states that the Enquiry Officer nowhere discusses on what basis he comes to the conclusion that the charge No.2 was proved.  In fact, the findings regarding charge No.2 are as follows:




VERNACULAR (TAMIL) PORTION DELETED




14.The learned counsel for the petitioner describes the aforesaid findings are his ipse dixit.  Apart from the aforesaid passage in the findings, there is nothing in the findings of the Enquiry Officer, regarding charge No.2.  

15.The learned counsel for the petitioner has also brought to my notice the following passage from the impugned order of the second respondent, removing him from service. 



VERNACULAR (TAMIL) PORTION DELETED



16.The learned counsel for the petitioner submits that the aforesaid conclusions of the second respondent have no basis.  The second respondent proceeds as if the wife of the petitioner deposed against the petitioner.  The second respondent states that other witnesses spoke on the lines of the second witness.  As stated above, the second witness, did not speak against the petitioner.  It is also pointed out that the second respondent simply stated that the residents of the police quarters were made to frighten by the act of the petitioner and that the petitioner brought disrepute to the Police Department, without any basis.  

17.The learned counsel for the petitioner has also pointed out that the first respondent, the Appellate Authority, also committed error in holding that the petitioner nourishes a homicidal tendency.  It is also pointed out that the first respondent was on erroneous view that the petitioner thought of burning his entire family, while it was nobody's case.  He brings to my notice the following passage from the order dated 11.04.2002 of the first respondent.

"..... The second charge shows that even in his family the appellant nourishes a homicidal tendency and for such a person to be allowed to continue in force is grave risk.  When he can think of burning his family then his colleagues will not be of any importance to him and in a rage he can utilize the service weapon against them."

18.I have considered the submissions made on either side.  The submissions of the learned counsel for the petitioner are well founded.  There is absolutely no evidence that the neighbours of the petitioner were frightened.  None of the neighbours deposed in the enquiry that the petitioner acted in such a way to frighten them by setting fire.  All the witnesses deposed that there was a fire in the kitchen.  Apart from that, there is nothing in the evidence to show that the petitioner had an intention to frighten them and in order to frighten them, he set fire in the kitchen.  In fact, all the witnesses stated that he went inside the kitchen for preparation of coffee as deposed by the wife of the petitioner.  It is also stated by the second respondent that all the witnesses deposed on the lines of the wife of the petitioner.  As noted above, the wife of the petitioner deposed in favour of the defence.  In such an event, the second respondent is not correct in coming to the conclusion that the charge No.2 was established.  The learned counsel for the petitioner is correct in his submissions that the findings of the Enquiry Officer are perverse as the findings are not based on evidence.  Though the findings run through several pages, the actual findings on charge No.2 was as extracted above and the rest of the report of the Enquiry Officer is simply extracting the depositions of the witnesses.  

19.In these circumstances, the findings of the Enquiry Officer is correctly characterised by the petitioner as perverse and the ipse dixit of the Enquiry Officer.   At this juncture, it is relevant to point out the following passage of the Honourable Apex Court in A.L.KALRA VS. PROJECT AND EQUIPMENT CORPORATION OF INDIA LTD, reported in 1984 (3) SCC 316.   
"28.Mr.Ramamurthi on behalf of the appellant further contended that the order of removal from service is void as it is passed in violation of principles of natural justice and at any rate an order imposing penalty by a quasi-judicial tribunal must be supported by reasons in support of its conclusions.  It was urged that duty to give reasons would permit the court hearing a petition for a writ of certiorari to ex facie ascertain whether there is any error apparent on the record.  It was conceded that for the present submission adequacy or sufficiency of reasons is not questioned.  What is conceded is that the inquiry office has merely recorded his ipse dixit and no reasons are assigned in support of the findings.  The mental process is conspicuously silent.  A speaking order will at its best be reasonable and at its worst be at least a plausible one (M.P. Industries Ltd. Vs. Union of India.  What prevents the authority authorised to impose penalty from giving reasons?  If reasons for an order are given, there will be less scope for arbitrary or partial exercise of power and the orders ex facie will indicate whether extraneous circumstances were taken into consideration by authority passing the order.  This view in A.Vedachala Mudaliar V. State of Madras was approved by this Court in Bhagat Raja V. Union of India.  As pointed out earlier, the findings of the inquiry officer are merely his ipse dixit.  No reasons are assigned for reaching the finding and while recapitulating evidence self-contradictory positions were adopted that either there was no misconduct or there was some misconduct or double punishment was already imposed.  Rule 27(19) casts an obligation upon the inquiry officer at the conclusion of the inquiry to prepare a report which must inter alia include the findings on each article of charge and the reasons therefor.  The report is prepared in contravention of the aforementioned rule".

20.The aforesaid dictum of the Honourable Apex Court squarely applies to the facts of the case.  Further, the first respondent also erroneously proceeded as if the petitioner attempted to set fire to his entire family.  In fact, that was not the charge at all.  The charge was that he went into the kitchen and locked himself inside and set fire, while the wife and children were left outside the kitchen.  Hence, the first respondent totally proceeded on wrong assumption that he thought of setting fire on his family members.  Hence, the charge No.2 was not proved in the enquiry. 

21.Regarding charge No.1, the learned counsel for the petitioner submits that the only witness, who spoke on the charge No.1 was the first witness.  It is submitted that the first witness stated that the petitioner was absent from 01.50 p.m. to 17.50 p.m. and the petitioner told him that he was not well and that therefore, he was not able to report at 01.50 p.m.  In any event, I am of the considered view that the petitioner was unauthorisedly absent for about six hours.  But the first respondent is not correct in describing that the petitioner was in the habit of deserting the post.  The absent from duty for six hours could not be called as desertion of post, that too habitual desertion.  Desertion can be inferred only when the employee has no intention to return back to the work.  In fact, the charge itself is not desertion.  The charge was that he was not present between 02.00 p.m. to 07.50 p.m on 01.09.2001.  The petitioner has to be blamed for his absence for six hours period, for which he has suffered a lot.  I am of the view that deprival of wages for the period of his non-employment is sufficient punishment for the charge No.1. 
22.In these circumstances, the order of removal imposed by the second respondent, that was confirmed by the first respondent, is modified as reinstatement without any backwages, but with continuity of service for all purposes.  The writ petition is allowed to the extent stated above and the respondents are directed to reinstate the petitioner within a period of eight weeks from the date of receipt of a copy of this order, without any back wages and however, he is entitled to notional fixation of pay for the period of non-employment.   

23.With these observations, the writ petition is disposed of. No costs. 









TK

To


1.The Deputy Inspector General of Police
   O/o. The Deputy Inspector General of Police
   Ramanathapuram, Ramanathapuram District. 

2.The Superintendent of Police
   District Police Office
   Sivagangai, 
   Sivagangai District