IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.12.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.3753 of 2006 (O.A.No.6723 of 1998) M.Appukuttan .. Petitioner Vs. 1.The Superintendent of Police, Tirunelveli District, Tirunelveli. 2.The Deputy Inspector General of Police, Tirunelveli .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to set aside the order of the first respondent made in PR.2/98, dated 24.4.1998 and consequently, to set aside the order of the second respondent made in C1/AP39/98, dated 24.6.1998. For Petitioner : Mr.P.V.S.Giridhar For Respondents : Mr.R.Neelakantan, GA ORDER Heard both sides. The petitioner, who was a Grade I Police Constable, filed the O.A.No.6723 of 1998 before the Tamil Nadu Administrative Tribunal, seeking to set aside the order dated 24.4.1998 passed by the first respondent, the Superintendent of Police, Tirunelveli District and confirmed by the order, dated 24.6.1998 by the second respondent. 2.In view of the abolition of the Tribunal, the matter stood transferred to this court and was renumbered as W.P.No.3753 of 2006. On notice from the Tribunal, the first respondent has filed a reply affidavit, dated 17.12.1998. The original file was also circulated by the learned Government Advocate for perusal by this court. 3.The brief facts leading to the dismissal of the petitioner are as follows: https://hcservices.ecourts.gov.in/hcservices/ The petitioner was working as a Grade I Police Station at Moondradaippu Police Station from 26.7.1997. He was on Roll Call on 22.12.1997 at 17.00 hours. The petitioner did not turn up for duty, but he later appeared before the station Sub Inspector in a drunken condition at 19.30 hours. He was unable to perform the station routine duty. Therefore, the Sub Inspector of Police along with two other police personnel, produced the petitioner before the Duty Medical Officer, Tirunelveli Medical College Hospital with a memo for examination. When the Medical Officer asked for the petitioner to give his urine and blood samples, the petitioner refused to do so. Therefore, the Medical Officer gave a certificate to the effect that the petitioner had consumed liquor, but not under its influence. A case under Section 4(1)(j) of the Tamil Nadu Prohibition Act was registered against the petitioner in Moondradaippu police station. 4.The petitioner was arrested on 22.12.1997. The petitioner jumped his bail on 23.12.97. Thereafter, he was placed under suspension pending disciplinary action. A charge memo in PR No.2/98 was given to the petitioner, charging him with neglect of duty in having absented on 22.12.1997 and also found to be in a drunken mood. The petitioner acknowledged the charge memo. The Enquiry Officer, namely Deputy Superintendent of Police, Valliyoor drew up the minutes and held the petitioner was guilty of charges vide his report, dated 5.3.1998. The petitioner was directed to give further representation on the enquiry report. After considering his explanation on the enquiry report, the first respondent imposed the punishment of dismissal by an order, dated 24.4.1998. The petitioner preferred an appeal to the second respondent on 11.5.1998. The appellate authority rejected his appeal by an order, dated 24.6.1998. 5.The contention raised by the petitioner was that the enquiry was not in accordance with law. It was conducted in a prejudicial manner. No valid opportunities were given. P.W.1, the Medical Officer though stated that there was smell of alcohol in the breath of the petitioner, the speech, gait and gestures of the petitioner was normal. Therefore, it was stated that though he may have consumed liquor, he was not under its influence. Therefore, the charge that the petitioner was in a drunken condition cannot be said to have been established. P.W.1 also opined that smell of liquor can come if any other alcohol based medicine/tonic was taken and that fact was not considered. There were contradictions in the evidence of witnesses. It was also stated that on 22.12.1997, there were two other persons, who also did not attend the Roll Call, but the petitioner alone has been singled out. 6.Mr.P.V.S.Giridhar, learned counsel for the petitioner placed reliance upon the judgment of the Rajasthan High Court in Charanjeet Sharma Vs. State of Rajasthan and another reported in RLW 2008 (3) Raj 2634. In that case, the Rajasthan High Court in paragraph 9 held as follows: https://hcservices.ecourts.gov.in/hcservices/ "9.Obviously, the petitioner was sent to the doctor for examination so as to ascertain the fact as to whether he had actually consumed the liquor and was in intoxicated condition. It goes without saying that in order to establish the diagnosis of drunkenness, the doctor should carefully examine the person concerned and should collect the blood and urine samples for chemical analysis. Besides the odour of alcohol in the breath, there are many more signs which are required to be noticed while examining the person said to be in the drunken condition, such as, loss of clearness in intellect and control of himself, unsteady gait, dry and sticky lips, congested eyes, sluggish and dilated pupils, increased pulse rate, unsteady and thick voice etc. But, it appears that none such sign have been noticed by the doctor while examining the petitioner. If, the doctor was to give his finding only on the basis of the odour of alcohol in the breath of the petitioner then, there was no necessity even to refer the petitioner for examination to the doctor. The doctor's report solely based on alleged odour of liquor emitting from the mouth the petitioner, cannot be made basis for holding him guilty, more so, when all other prosecution witnesses except the complainant Mr.Ramesh Chandra Sharma, have categorically stated that the petitioner did not appear to be in drunken condition. The finding of guilt recorded by the inquiry officer concurred by the Disciplinary Authority, ignoring the statements of the witnesses attributing towards the innocence of the petitioner, cannot be sustained. It is true that in the matter of disciplinary proceedings, the strict rules of evidence do not apply, the charges are not required to be proved beyond doubt, and this Court in exercise of its extra ordinary jurisdiction cannot sit in appeal over the findings arrived at by the Disciplinary Authority but, in the instant case, a perusal of the material on record goes to show that the charge of the petitioner being found in intoxicated condition cannot be said to be proved against him even on the yardstick of the proof on the basis of preponderance of the probabilities." 7.Therefore, the learned counsel for the petitioner submitted that such foolproof test was not conducted in respect of the petitioner. It is one thing to state that a person is smells of liquor but the other thing that person is charged for being drunken https://hcservices.ecourts.gov.in/hcservices/ in a public place which will come within Section 75(1)(a) of the Tamil Nadu City Police Act. In the present case, even the evidence of P.W.1 does not support the case of the respondents. 8.In opposition to the said contention, in paragraph 4 of the reply affidavit, it was stated that the petitioner did not produce any certificate that he had consumed some tonic for his alleged stomach ache. Therefore, he cannot put forth such a defence. Further, in paragraph 5 of the reply affidavit, it was averred as follows: "5....The First Respondent has passed order dismissing the applicant from the police force after carefully analysing all the aspects/recorded evidences which have come to light through the prosecution documents i.e. P.W.1 to P.W.6. During the Medical Examination, the applicant did not co-operate with the Medical Officer by providing his urine and blood for medical test and he has himself admitted his drunkenness indirectly. Hence the Medical Officer came to the conclusion that the applicant was under intoxication and Drunkenness certificate was issued by him. It is therefore respectfully submitted that the dismissal order is quite commensurate to the delinquency committed by the applicant, being a police officer in a disciplined force." 9.The petitioner being a member of a disciplined force, failed to be present during his Roll call. He also misbehaved himself which led the respondents taking the petitioner to a Doctor. The Doctor had certified that there was a smell of alcohol and that the petitioner had refused to give blood and urine samples. Therefore, the petitioner cannot make use of his own defiance as a ground to plead innocence. On the contrary, the respondents have taken all steps possible to hold the petitioner guilty. The contentions raised by the petitioner cannot be accepted. The contention raised by the petitioner in attempting to make distinction between drunkenness and smell of liquor may be relevant in a criminal case. 10.The Supreme Court in State of Meghalaya and others Vs. Mecken Singh N.Marak reported in 2008 (7) SCC 580 has held that punishment unless shockingly disproportionate cannot be interfered with and the judicial review conferred on the court is very limited and restricted to exceptional cases. 11.The Supreme Court in Chairman & Managing Director, V.S.P. and others Vs. Goparaju Sri Prabhakara Hari Babu reported in 2008 (5) SCC 569 held that the court has got only a limited jurisdiction to go into the validity of the proportionality and a well reasoned order of the departmental authority cannot be interfered with on the basis of sympathy and sentiments. Once procedural formalities are complied with by the authorities, the courts should ordinarily not https://hcservices.ecourts.gov.in/hcservices/ disturb the penalty. 12.In the light of the above, the writ petition will stand dismissed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vvk To 1.The Superintendent of Police, Tirunelveli District, Tirunelveli. 2.The Deputy Inspector General of Police, Tirunelveli 1 cc to M/s. P.V.S. Giridhar and Sai Associates, SR. 70055 W.P.NO.3753 of 2006 MDR (CO) kk 29/12 https://hcservices.ecourts.gov.in/hcservices/