A DHANAPAL Vs. SECRETARY TO GOVERNMENT HOME DEPARTMENT

JUDGEMENT

(1.) THE writ petition has been filed for issuance of a writ of certiorarified mandamus, calling for the records on the file of the fourth respondent in connection with the orders passed in O. A. No. 2158 of 2002, dated 16. 7. 2002 and in R. A. No. 19/2003, dated 9. 7. 2003 and quash the same and consequently direct the respondents 1 to 3 reinstate the petitioner into service with all consequential benefits.

(2.) BRIEF facts of the case are as follows: the petitioner joined the services of the Police Department as grade-II Police Constable on 15. 11. 1970 and served in the same capacity until the date of his dismissal from service. While the petitioner was working in thiruppapuliyur Police Station in Cuddalore District, departmental proceedings were initiated in P. R. No. 61 of 1991 for the following delinquencies:

(3.) THE enquiry report H-1/pr. 61/91, dated 30. 5. 1992 was sought to be served on the petitioner and since he refused to receive the same, it was pasted on the residential door of the petitioner in the presence of the village Administrative Officer on 31. 7. 1992. Even after the service of the report of the enquiry officer as above, there was no response from the petitioner. Therefore, by proceedings dated 21. 9. 1 992, the petitioner was dismissed from service. As against the order of dismissal, it is admitted that no appeal has been filed. Thereafter, the petitioner after nearly seven years made a representation on 2 0. 8. 1999 to the second respondent-Director general of Police stating that in the criminal case in C. C. No. 190/91, by order dated 25. 11. 1991 , the petitioner was honourably acquitted and by order dated 16. 6. 199 4 in Crl. R. C. 684 of 1991, certain observations made by the learned judicial Magistrate, were expunged. Therefore, it was contended that the order of acquittal has been confirmed by the High Court and he was honourably discharged and consequently, he should be reinstated. It was also contended that the findings in the departmental enquiry were contrary to the findings of the criminal Court. Therefore, he prayed for quashing the order of disciplinary authority dismissing him from service and to reinstate him in service with c onsequential benefits. This was followed by another representation dated 8. 1. 2001 which is the very same representation made on 20. 8. 1999. Since, according to the petitioner, no action has been taken on his representation, he filed O. A. No. 1093 of 2001 for a direction to pass orders on the representation dated 20. 8. 1999 and 8. 1. 2001. The Tribunal, by order dated 9. 2. 2001, directed that petitioner's representation should be considered on merits within a period of two months. Subsequent to the order of the Tribunal, by proceedings Rc. No. 30749/ap. 1 (2)/2001, dated 26. 4. 2001 , the second respondent-DGP passed a detailed order on the representations and held that the petitioner had not participated in the enquiry nor did he submit his written statement of defence. Though the two witnesses, namely the wife of the petitioner and Banumathi having turned hostile, taking note of the statement of the two ladies in the preliminary enquiry and the record of proceeding in the oral enquiry, the second respondent-DGP concluded that there was no miscarriage of justice and principles of natural justice were followed and that the disciplinary proceedings were conducted in ac cordance with the rules. The second respondent held the order of the disciplinary authority as correct based on the principle of preponderance of probabilities, which is the paramount consideration and requirement for coming to the conclusion in the departmental proceedings. He therefore rejected the representations as devoid of merits. As against this order of the second respondent, the petitioner filed an appeal dated 15. 12. 2001 to the first respondent-Secretary to government. In the appeal to the first respondent, it was contended that the second respondent ought not to have confirmed the order of dismissal solely based on the preliminary enquiry report. Further, there was no opinion of the disciplinary authority based on the evidence adduced during the course of oral enquiry and it is a case of no evidence and therefore, there was violation of principles of natural justice. However, even before the appeal could be disposed of, O. A. No. 2158 of 2002 was filed before the Tribunal for the following relief: