Evidence recorded behind back of delinquent cannot be relied on.

(Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorari as stated therein.)

The prayer in this Writ Petition is for a Writ of Certiorari calling for the records of the respondents in connection with the impugned order issued by the respondents 1 and 2 in C.No.F1/PR 13/2004 dated 17.06.2004 and Rc.No.150713/PR.I (1)/2004 dated 05.10.2004 respectively and quash the same.

2. When the Petitioner was working as Inspector of Police in Andhiyur Police Station between 18.11.1994 and 18.11.1996, on the basis of two complaints received against him during that period, preliminary enquiry was conducted by the respondents and thereafter charge memo dated 07.03.1997 was issued under Rule 3 (b) of Tamil Nadu Police Subordinate Service Rules (Discipline and Appeal) Rules, 1995 levelling four charges against the petitioner. The petitioner submitted his explanation denying the said charges. Thereafter, an enquiry officer was appointed 10.04.1997. The enquiry officer conducted enquiry in which 20 witnesses and 26 exhibits were marked by the prosecution. On consideration of the oral and documentary evidence, the enquiry officer found that all the four charges against the petitioner were not proved. Whereas, the disciplinary authority, the first respondent herein has taken a dissenting view only in respect of charge Nos. 1 and 2 are concerned and issued second show cause notice to the petitioner on 15.03.2004 for which the petitioner also submitted his reply on 02.04.2004 which was considered and final order was passed on 17.06.2004 imposing punishment of postponement of next increment of the petitioner for two years without cumulative effect. Aggrieved by the said order, the petitioner has preferred an appeal before the second respondent on 14.07.2004, which was also dismissed on 05.10.2004, hence, the present writ petition has been filed challenging the said two orders.

3. It is necessary to look into the charge Nos. 1 and 2 levelled against the petitioner, which runs as follows:-

"1. Grave misconduct in having demanded and accepted Rs.1000/- from Tr. Krishnasamy @ Kittu (35) son of Sengottaiyan, Karumparaikadu, Perumpalayam Post, Nagalur Village of Anthiyur P.S. Limits, Erode District on 09.01.1995 at Anthiyur P.S. limit for not registering any case against him and to leave him free and thus exhibited lack of devotion to duty.

2. Grave misconduct in having demanded Rs.1000/- from one Devannan (50) S/o. Lourdusamy of Karumparaikadu, Perumpalayam Post, Nagalur Village on 14.01.1995 at Anthiyur P.S. for leaving without any case being booked against him accepted Rs.750/-on that date but registered a case under Prohibition Act against Thiru. Devannan on that date itself for paying Rs.750/- only as against the demand of Rs.1000/- and thus exhibited lack of devotion to duty."

4. Mr. Venkataramani, learned counsel for the petitioner submitted that in respect of charge Nos. 1 and 2, the prosecution has examined witnesses 1 to 11, 13 and 14. Charge No.1 was that witness No.1 Krishnasamy @ Kittu was taken into custody on 08.01.1995 by the petitioner and he was subsequently released on receipt of a sum of Rs.1,000/- without filing any case against him that the first witness himself stated that he was not taken into custody by the petitioner as alleged; that in so far as the averment that the petitioner has received a sum of Rs.1000/- from said the witness No.1 Krishnasamy @ Kittu is concerned, the same is also not proved by the prosecution, which is evident that witness No.2 Kuruvayee and witness No.3 Palanisamy in their evidence have not stated that the said payment was paid to the petitioner by witness No.1 Krishnasamy @ Kittu. It is further argued that in so far as the second charge is concerned, witness No.11 Jayamary and witness No.13 Anthonisamy have spoken that witness No.10 Devannan was taken to police station on 19.01.1995 by the petitioner and he was released on the same day; that witness No.17 Usman