IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 26.10.2010 CORAM THE HONOURABLE MR. JUSTICE D. HARIPARANTHAMAN W.P.No.45210 of 2006 D.Gandhi .. Petitioner vs 1.The Deputy Inspector General of Police, Tamil Nadu Special Police Battalion, Tiruchy Range, Crappatty Post, Tiruchy. 2.The Commandant, Tamil Nadu Special Police IV Battalion, Kovai Pudur, Coimbtore District, Pin 641 042. .. Respondents Writ Petition filed under Article 227 of the Constitution of India for issuance of Writ of certiorarified Mandamus to call for the records relating to the proceedings of the Commandant, Tamil Nadu Special Police IV Battalion, Kovai Pudur, Coimbatore-42, the second respondent herein, made in B.O.546/98 C.No.PR 39/E 3/98 dated 11.9.1998, quash the same and direct the respondents herein to reinstate the applicant back in service as a Police Constable with all consequential service and attendant monetary benefits, including continuity of service, disburse all arrears due to the applicant. For Petitioner ... Mr.K.Rajkumar For Respondents ... Mrs.Lita Srinivasan Government Advocate O R D E R This writ petition has been filed to call for the records pertaining to the proceedings of the Commandant, Tamil Nadu Special https://hcservices.ecourts.gov.in/hcservices/ Police IV Battalion, Kovai Pudur, Coimbatore-42, the second respondent herein, made in B.O.546/98 C.No.PR 39/E 3/98 dated 11.9.1998, quash the same and direct the respondents herein to reinstate the applicant back in service as a Police Constable with all consequential service and attendant monetary benefits, including continuity of service, disburse all arrears due to the applicant. 2.The petitioner was enlisted as a Grade II Police Constable and was allotted to the Armed Reserve. He was also posted to the Tamil Nadu Special Police IV Battalion as Police Constable, Coimbatore. He joined duty at Coimbatore on 16.10.1997. On 6.5.1998, he was deputed to Commandant's Camp Office guard duty. Therefore, he reported at Signal Office for taking arms and ammunition. 3.According to Havildhar at the Signal Office, as the petitioner was found in drunken mood, he did not supply the arms and ammunition to the petitioner. The Havildhar brought the matter to the notice of the Signal Officer. The Signal Officer complained the matter to the Commandant and the Signal Officer handed over the petitioner to Perur Police Station in Coimbatore. The First Information Report dated 6.5.1998 was lodged by the Signal Officer on the file of Perur Police Station in Crime No.99 of 1998 under Section 4(1) (J) of TNP Act. 4.Based on the FIR, the Signal Officer submitted a report dated 7.5.1998 to the second respondent to take suitable action against the petitioner. The petitioner was placed under suspension with effect from 11.5.1998 by the second respondent as per the order in B.O.249/98 (E3/8449/98) dated 11.5.1998. The petitioner was issued a charge sheet under Rule 3(b) of Tamil Nadu Police Subordinate Services (D&A) Rules, 1955 in P.R.No.39 of 1998. Two charges made in the Charge Sheet are as follows: "1)While the petitioner came to the Signal Office on 6.5.1998 to receive arms and ammunitions so as to report at the Camp office of the Commandant, he was found drunk. 2)The petitioner made disrespect to the department in view of the case being registered in Crime No.99 of 1998 on the file of the Perur Police Station under Section 4(1) (J) of TNP Act". 5.The petitioner was sent to C.M.C Hospital at Coimbatore for medical examination on the same day. The Medical Officer, after examination, opined that the petitioner had consumed liquor but he was not under its influence. 6.The petitioner submitted his explanation dated 9.7.1998 https://hcservices.ecourts.gov.in/hcservices/ denying the charges. According to him, for the past two years, he was not well and he was taking Ayurvedic treatment and the medicine contained permissible limit of alcohol and that the alcohol smell emanated only from the medicine and he also submitted that he did not consume alcohol. 7.Thereafter, an enquiry was conducted. The Signal Officer and the Sub-Inspector, Perur Police Station were examined as witnesses. Based on the enquiry, the Enquiry Officer found that the two charges were held proved by his enquiry report dated 4.8.1998 made in PR.No.39 of 1998. 8.Based on the said findings, the second respondent has passed an order dated 11.9.1998 dismissing the petitioner from service. The petitioner submitted his representation dated 5.10.1998 to give the proceedings of the enquiry so as to file an appeal, but the same was not considered by the competent Authority and his request was declined. He filed an appeal dated 30.10.1998 to the first respondent. While the appeal was pending, he preferred an Original Application No.3173 of 2000 (W.P.No.45210 of 2006) to quash the order dated 11.9.1998 passed by the second respondent and for direction to reinstate him in service with all the benefits. 9.The respondents have filed a reply affidavit refuting the allegations, in which they submitted that the Enquiry Officer conducted the enquiry after giving reasonable opportunity to the petitioner. The Enquiry Officer found him guilty of the charges. Based on such findings, he was dismissed by the second respondent. The petitioner asked prosecution document Ex.P.1 only. But his request to supply Ex.P.1 was not considered as he had not availed the opportunity already given to him. 10.Heard Mr.K.Rajkumar, learned counsel for the petitioner and Ms.S.Lita Srinivasan, learned Government Advocate for the respondents. 11.The learned counsel for the petitioner has submitted that the petitioner made a representation dated 5.10.1998 to furnish the proceedings of the enquiry so as to prepare an appeal. But, the second respondent erroneously proceeded as if the petitioner wanted only Ex.P.1 marked in the enquiry and failed to furnish the deposition of the witnesses. 12.According to the learned counsel for the petitioner, the petitioner was not given sufficient opportunity to putforth his case effectively before the first respondent by way of filing an appeal, as he was not furnished a copy of the deposition of witnesses https://hcservices.ecourts.gov.in/hcservices/ examined in the enquiry. 13.The learned counsel has further submitted that the Doctor, who examined the petitioner, found that the petitioner consumed liquor but he was not under its influence. The learned counsel has also submitted that it was not the case of the department that the petitioner misbehaved rudely in a disrespectful manner. Except the allegation that the petitioner smelt alcohol, no other allegation was made against the petitioner. Even, according to him, the smell of alcohol was pursuant to consumption of the Ayurvedic medicine. According to him, even assuming that, the smell of alcohol emanated during duty hours pursuant to consumption of alcohol during non-duty hours, the punishment of dismissal is too harsh and shockingly disproportionate to the charge, particularly taking into account that no other allegations such as rude behaviour, etc. were made. 14.Moreover, the learned counsel has submitted that the mere registering of FIR could not constitute misconduct. According to the learned counsel, after investigation, the police dropped the charges and no charge-sheet was filed in a criminal court. He relied on the order of the learned Judicial Magistrate closing the FIR. Therefore, the second respondent committed error in proceeding on the basis that the second charge also was proved. The punishment of dismissal was on premise that the second charges was also proved and that therefore the punishment is bad. 15.The learned counsel also has relied on the decisions reported in 1987 (2) SLJ 134 PUNJAB AND HARYANA HIGH COURT (CHANDIGARH) (EX- HEAD CONSTABLE KEHAR SINGH V. THE STATE OF HARYANA), 1983 (2) SLR 243 (RATTAN LAL V. THE STATE OF HARYANA AND OTHERS) and 2006 (1) MLJ 48 (R.M.PALANIAPPAN V. THE TRANSPORT COMMISSIONER, CHEPAUK, CHENNAI AND OTHERS). 16.He strenuously contends that as per the aforesaid judgments, the punishment is disproportionate to the proved charges and the second respondent was not correct in awarding extreme penalty of dismissal. 17.On the other hand, the learned Government Advocate has submitted that there is no infirmity in the impugned order dated 11.9.1998 passed by the second respondent and after complying with the Tamil Nadu Police Subordinate Services (D & A) Rules, 1955 and in following the principles of natural justice, the order was passed based on the findings. Therefore, there is no infirmity in awarding penalty of dismissal. 18.I have considered the submissions made on either side. 19.As rightly pointed out by the learned counsel for the https://hcservices.ecourts.gov.in/hcservices/ petitioner, the petitioner sought for the deposition of witnesses made on 17.7.1998, 24.7.1998 and 30.7.1998 during the enquiry through his letter dated 5.10.1998. The following request was made by the petitioner to the second respondent. ghh;itapy; fz;l mzp MizfSf;fpz';f ehd; gzp ePf;fk; bra;ag;gl;Ls;nsd;. ,t;thizf;F vjpuhf nky; KiwaPL bra;a tpUk;g[tjhy; 17.7/1998 24/7/1998 kw;Wk; 30/7/1998 Mfpa ehl;fspy; tha;bkhHp tprhuiz kw;Wk; FWf;F tprhuizapd; nghJ gjpt[ bra;ag;gl;l eltof;iffspd; efy;fis vdf;F tH';FkhW jhH;ikald; nfl;Lf;bfhs;fpnwd; . 20.The request for deposition of witnesses made during the enquiry was only to prefer an appeal to the first respondent. But, the second respondent refused to provide the deposition of the enquiry proceedings. The reason for non-providing the proceedings is stated in paragraph 8 of the reply affidavit. The said paragraph in the reply affidavit is extracted hereunder: "On 5.10.1998 the applicant requested the prosecution exhibit No.1 only. As he had not availed the opportunity already given to him, his request to supply Ex.P.1 was not considered." 21.The same is also repeated in paragraph 15. The aforesaid reply of the second respondent makes it very clear that the second respondent failed to apply his mind to the request made by the petitioner on 5.10.1998. The request of the petitioner was extracted herein above. He did not want Ex.P.1 and on the other hand, he wanted the deposition of witnesses in the enquiry so as to prefer an appeal. Whatever its worth, the second respondent should have furnished the deposition of witnesses made during the enquiry. Non furnishing of the deposition of witnesses in the enquiry amounts to denial of reasonable opportunity to prefer appeal. 22.Furthermore, as rightly pointed out by the learned counsel for the petitioner, the second respondent proceeded as if the second charge was also proved and imposed the extreme punishment of dismissal. The second charge was extracted herein above. In my view, the mere registration of FIR, would not constitute misconduct. Since the Criminal case itself was not proceeded further and the charge was dropped, the second respondent was not correct in coming to the conclusion that the second charge was proved. The order dated 5.6.1998 of the Judicial Magistrate was enclosed at page 29 of the typed set. As per the order dated 5.6.1998 of the Judicial Magistrate https://hcservices.ecourts.gov.in/hcservices/ No.I, Coimbatore, the matter was closed treating as further action dropped. After the order dated 5.6.1998, charge sheet under Rule 3 (b) of Tamil Nadu Police Subordinate Service (D & A) Rules, 1955 was issued. While the charge sheet was issued, the second charge should not have been made. In the said circumstances, without applying his mind to the dropping of the criminal prosecution launched by the second respondent pursuant to the complaint made by his subordinates to the Perur Police Station in Crime No.99 of 1998, the second respondent made the second charge. The second respondent erroneously proceeded as if the second charge was proved. Had, the second respondent taken into account the order dated 5.6.1998 of the Judicial Magistrate No.I, Coimbatore treating his further action dropped in Crime No.99 of 1998 on the file of the Perur Police Station, the second respondent could not have imposed the extreme penalty of dismissal. 23.Further, as rightly pointed out by the learned counsel for the petitioner, the report of the Doctor reveals that the petitioner breathed smell of alcohol, his speech, gait, eyes and pupils were normal. The Doctor opined that the petitioner consumed liquor, but he was not under its influence. The Doctor Certificate is enclosed at page 28 of the typed set which is as follows: "Symptoms at the time of examination: Breathe smells of alchohol, speech, gait, normal, eyes normal, pupils norm,al. I am of opinion that the above person: * * * * * Consume liquor but is not under its influence. Blood has taken for analysis and the result is awaited/herewith enclosed." 24.Though, the second respondent proceeded that the petitioner did not give blood, the Doctor Certificate reveals that blood was taken for analysis, but the result was not known. The aforesaid Doctor Certificate reveals that except the smell of alcohol, there was nothing found against the petitioner. 25.Even according to the second respondent, except the smell of alcohol on the petitioner, the petitioner did not indulge in any other misconduct. Taking into account the fact that the second charge was not proved and also the aforesaid doctor certificate as well as the judgment relied on by the learned counsel for the petitioner, I am of the view that the second respondent was not correct in imposing https://hcservices.ecourts.gov.in/hcservices/ the extreme penalty of dismissal. 26.Para 3 of the judgment reported in 1983 (2) SLR (RATTAN LAL V. THE STATEOF HARYANA AND OTHERS), which is relevant, is extracted hereunder: "One of the primary contentions raised by the learned counsel for the petitioner is that even if the above-noted facts or the finding recorded against the petitioner that at the opportune time he was smelling alcohol is to be accepted, the same does not amount to any misconduct as he was neither on duty at that moment nor was misbehaving in any other manner. The learned counsel maintains that even as per the medical report, the petitioner but for the alcoholic smell was found to be normal in all respects. These submissions of the learned counsel are met by Mr.B.L. Bishnoi, the learned Additional Advocate-General appearing for the respondent-authorities on the plea that a police officer is supposed to be on 24 hours' duty and, thus, even if the petitioner was not performing the duty of a sentry at the Malkhana he is to be presumed to be on duty. I am afraid I cannot possibly accept this submission of the learned Additional Advocate-General. If that be so, then all members of the Police Force, high or low, have to be taken on duty during the course of their entire service right from the day of their enrollment and if consumption of alcohol has again to be be taken as misconduct then probably most of them can any time be held guilty of the same. To everybody's knowledge, the factual position is entirely different. Otherwise also I am of the considered view that mere consumption of alcohol even if this has to be taken as an established fact in the case in hand-does not amount to any misconduct known to the Service Rules. Merely because of an employee is found under the influence of liquor without anything more, does not, to my mind, render the employee to any such disciplinary action. The learned Additional Advocate-General is not in a position to bring to my notice any precedent or principle on the basis of which it can be said that mere consumption of liquor by any employee, particularly when he is not on duty, amounts to misconduct or misbehaviour. It rather looks somewhat intriguing that the State and its functionaries https://hcservices.ecourts.gov.in/hcservices/ who treat exercise revenue as one of its major sources of income should hold that mere consumption of alcohol by its employees is some sort of misconduct". 27.The learned counsel has also brought to my notice the last four lines in paragraph 3 of the aforesaid judgment and has submitted that the policy of the Government is not imposing prohibition, but to open more liquor shops and therefore it is not fair to impose extreme penalty of dismissal for mere consumption of liquor, without anything more. In any event, it is the fact that the petitioner did not involve in any other mis-conduct and I find that it can be taken as a circumstance for not imposing extreme penalty of dismissal. 28.The other judgment reported in 1987 2 SLJ 134 (EX-HEAD CONSTABLE KEHAR SINGH V. THE STATE OF HARYANA) in which, paragraph 5 runs as follows: "The above argument of the learned counsel has force. The plaintiff was in perfect normal state of mind and was found smelling of liquor only on close examination of the breath and, therefore, it cannot be said that Kehar Singh was under influence of liquor. Here I may quote Rattan Lal v. The State of Haryana and others (1983 (2) SLR 243). In that case a Constable of a Guard was found having taken liquor. After an enquiry, he was dismissed as the punishing authority found that taking of liquor "was an act of misconduct of the gravest sort" and amounted to gravest indiscipline. The Constable challenged his dismissal order by way of a writ petition in this Court. He had been examined by a doctor who had given the following opinion:- "Patient Rattan Lal about 40 years, male, is fully conscious and well-oriented with time and space. Pulse 100 per minute, blood pressure 130/70. He is talking well. Gait normal. Patient emit smell of alcohol in deep respiration. Opinion:- He has taken alcohol but not under due effect of alcohol. At the time he had taken liquor, he was not on duty according to the Duty Roster prepared in accordance with rule 18.5(7) of the Rules. The writ petition was allowed and the dismissal of the Constable was quashed". 29.The learned counsel also has relied on the decision of this Court RM.PALANIAPPAN V. THE TRANSPORT COMMISSIONER, CHEPAUK, CHENNAI https://hcservices.ecourts.gov.in/hcservices/ AND OTHERS reported in (2006)1 MLJ 48 in which, paragraph 26 runs as follows: "No doubt, the shameful act committed by the petitioner is so serious in nature. However, the extreme punishment of dismissal from service imposed on the petitioner, in our view, is disproportionate for the reason that the main object and thrust behind awarding of a punishment to an offender is only to mend him and not to strangulate. Otherwise, the very purpose of awarding punishment would not be served". 30.In such circumstances, I am of the view that the matter has to be looked into by the first respondent taking into account the aforesaid observations. 31.The learned counsel for the petitioner has also submitted that the petitioner will be satisfied if he is reinstated in service and he will forego the backwages for the period of non-employment and he is also willing for any other punishment that can be imposed on the petitioner by this Court, apart from depriving him of entire backwages. 32.The learned counsel for the petitioner has submitted that this Court could direct reinstatement straight away by following the judgment of the Apex Court in B.C.Chathurvedi case reported in AIR 1996 SUPREME COURT 484(1). But I am not inclined to do the same, except directing the first respondent to consider the appeal dated 30.10.1998 of the petitioner in the light of the observations made above and to pass an appropriate order particularly in the matter of imposition of appropriate punishment in lieu of dismissal, within a period of twelve weeks from the date of receipt of a copy of this order. 33.The writ petition is disposed of accordingly. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar cla https://hcservices.ecourts.gov.in/hcservices/ To 1.The Deputy Inspector General of Police, Tamil Nadu Special Police Battalion, Tiruchy Range, Crappatty Post, Tiruchy. 2.The Commandant, Tamil Nadu Special Police IV Battalion, Kovai Pudur, Coimbtore District, Pin 641 042. +1cc to Mr.K.Rajkumar,Advocate Sr 77172 +1cc to Govt. Pleader Sr 77316 SJ(CO) km/23.11. W.P.No.45210 of 2006 https://hcservices.ecourts.gov.in/hcservices/