IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 6.11.2009 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.344 of 2008 G.Govindasamy .. Petitioner Vs. 1. The State of Tamil Nadu rep. by its Secretary to Government Home Police I Department Fort St.George, Chennai – 600 009. 2. The Director General of Police Chennai – 600 004. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Certiorarified Mandamus as stated herein. For Petitioner : Mr.S.Selvathirumurugan For Respondents: Mr.T.Seenivasan Additional Government Pleader ORDER The writ petition is directed against the order of the first respondent/Government in G.O.(3D) No.12, Home (Police I) Department, dated 27.1.2003 and G.O.(2D) No.409, Home (Police I) Department, dated 8.9.2004, stated to have been served on the petitioner on 10.9.2005, and the Government letter dated 12.3.2007 and for a direction against the respondents to grant all service and monetary benefits to the petitioner. 2.1. The petitioner has entered into service as Sub Inspector of Police in Tamil Nadu Special Police Battalion by direct recruitment in the year 1966 and was promoted as Inspector of Police on 14.3.1981. He was promoted as Assistant Commandant (DSP) Category III in the year 1987. 2.2. The second respondent in the charge memo dated 2.10.1999 has framed the following charges against the petitioner: "(i) Highly reprehensible conduct in having forged his Service Book, a record of Public Register and https://hcservices.ecourts.gov.in/hcservices/ attempted to fabricate the record with ulterior motives and thereby deceive the Superior officers and the Government. (ii) Removing the Defaulter Sheet from his Service Book. (iii) Pouring blue ink on the surface of the 15th Column in Page 61 of his Service Book and smearing it with ink to make the Defaulter entries illegible. (iv) Writing by his own handwriting on the Defaulter entries as "Cancelled" unauthorisedly in page 13, 21 and 61 of his Service Book." 2.3. The Deputy Inspector General of Police, Armed Police (Modernisation and Welfare), Trichy, who was appointed as Enquiry Officer, held that except charge No.2 all other three charges have been proved. After communicating the report of the Enquiry Officer, the petitioner was permitted to make further representation on the finding of the Enquiry Officer and on considering the representation of the petitioner, a show cause notice was issued on 7.3.2001 by the first respondent, provisionally concluding to impose a punishment of cut in pension of the petitioner at the rate of Rs.100/- per month for a period of six months and the said show cause notice was issued under Rule 9 of the Tamil Nadu Pension Rules, 1978. 2.4. It is the case of the petitioner that it is because of the pendency of the charges, though the name of the petitioner was included in the panel for the year 1996-1997 for promotion to the post of Deputy Commandant, the same was deferred and the petitioner has ultimately retired on superannuation on 31.1.2001. 2.5. To the above said show cause notice, the petitioner has submitted his detailed reply on 5.4.2001. It is based on the said representation of the petitioner, views of the Tamil Nadu Public Service Commission were sought as per Regulation 18(1)(c) of the Tamil Nadu Public Service Commission Regulations, 1954 and the Tamil Nadu Public Service Commission in its letter dated 3.12.2001 has stated that the proposed punishment of cut in pension of Rs.100/- per month for a period of six months is quite reasonable and lenient compared to the nature of proved delinquencies. 2.6. It is stated that the petitioner has moved the Tamil Nadu Administrative Tribunal by filing O.A.No.7104 of 2001 against the proposed penalty, but the same was dismissed as withdrawn on 13.8.2002 and thereafter, the petitioner has made a further representation on 17.10.2002 requesting for dropping of charges. It was after examining the entire aspect, the first respondent has passed G.O.(3D) No.12, Home (Police I) Department, dated 27.1.2003 imposing a punishment of cut in pension of Rs.100/- per month for a period of six months. https://hcservices.ecourts.gov.in/hcservices/ 2.7. The petitioner has filed a review to the Government and that was also rejected on 8.9.2004. The further mercy petition filed by the petitioner dated 2.3.2007 also came to be rejected. As against which, the present writ petition has been filed. 3.1. The petitioner, in the affidavit filed in support of the writ petition, has taken a stand that the respondents have curtailed the right of appeal by rejecting the appeals and reviews on the point of delay. The filing of the present writ petition is to enable the petitioner to get promotion as Deputy Commandant from the year 1996-1997. 3.2. The petitioner has in detail explained about the very nature of enquiry conducted by the Enquiry Officer and the validity of various procedures followed therein, apart from the finding given by the Enquiry Officer. It is his case that in respect of the charges that he has removed the defaulter sheet from his service book and poured blue ink on the surface of the 15th column in page 61 of his service book and that he has written in his own handwriting on the defaulter entries as "cancelled" in respect of PR.No.116 of 1998, dated 28.1.1970 in page No.21, the handwriting expert, who has given scientific evidence on investigation, has opined that the petitioner could have made entries in the service book since at that time the petitioner was holding Additional Charge as Personal Assistant (Administration) to Commandant V Battalion from 30.4.1990 to 25.9.1998 and that such opinion of the expert should not have been the basis for deciding against the petitioner. 3.3. It is also his case that three of the prosecution witnesses have stated that they have made entries in the service register and not the petitioner. One Varadarajan, Office Superintendent, who was examined as D.W.1, has stated that no one can have access to the service book without the permission of the Commandant and therefore, according to the petitioner, the finding of the Enquiry Officer is perverse and the punishment imposed by the respondents is illegal and amounts to humiliation. He has also questioned about the conduct of the respondents in keeping the petitioner under suspension, which is stated to be against the Police Standing Orders. He has also stated that the evidence of various witnesses examined on the side of the prosecution should not have been accepted and the same has not been properly assessed and analysed by the disciplinary authority. 4.1. In the counter affidavit filed on behalf of the respondents, it is stated that the petitioner was awarded the punishment as stated in the petition in the year 2003. It is stated that his name was not considered for inclusion in the panel for the year 1996-1997 for promotion as Deputy Commandant not because of the said punishment but for the other punishment that he has already https://hcservices.ecourts.gov.in/hcservices/ earned to his credit. He was not considered for the inclusion in the subsequent panel for the year 1998-1999 due to pendency of the above said charges. 4.2. It is also stated that the punishment which has been imposed on the petitioner is a minimum punishment and the Enquiry Officer has given full opportunity to the petitioner. The petition submitted to the Government on 2.3.2007 was rejected not only because it was time barred, but also on the ground that no new point has been urged. It is also stated that the petitioner cannot be expected to make repeated representations to the Government. 4.3. It is also stated that since the petitioner was allowed to retire in the meantime, without prejudice to the pendency of the disciplinary proceedings, his case was considered under the Tamil Nadu Pension Rules. It is further stated that the delinquency was serious and the same was done when the petitioner was holding additional charge of the post of Personal Assistant (Administration) to Commandant V Battalion during the period from 30.4.1990 to 25.9.1998 and that the Department has no ill-will against the petitioner to punish him wantonly. 4.4. In respect of the second charge, from which the petitioner was exonerated by the Enquiry Officer, which relates to removing the defaulter sheet from the service book, the Enquiry Officer has found only the benefit of doubt to be given to the delinquent officer and it is not based on material evidence and in any event, the Government has accepted the said report of the Enquiry Officer. 4.5. The punishment awarded to the petitioner was a bar for promotion as per the Government Orders and there are no other statutory grounds available to grant promotion to the petitioner when grave charges were pending. Even though the criminal case which has been filed against the petitioner in Crime No.54 of 1999 under Sections 465, 471 and 420 of the Indian Penal Code was dropped as per the orders of the Superior Officers, that was not a bar for the department proceedings to continue. It is stated that the statutory principles and Police Standing Orders have been scrupulously followed in the case of the petitioner. 4.6. The acceptance of evidence of the Scientific Officer (P.W.2) as an expert evidence by the Enquiry Officer is not improper and the punishment awarded to the petitioner was within the powers of the Government, since the charges have been proved beyond all doubts. 5.1. The learned counsel for the petitioner, by bringing to the notice of this Court the various statements given by the witnesses https://hcservices.ecourts.gov.in/hcservices/ before the Enquiry Officer, would rely upon the evidence of some of the prosecution witnesses who deposed to the effect that no one can have access to the service book without the permission of the Commandant and vehemently contend that there is no possibility for the petitioner to tamper with the service records. 5.2. It is also his contention that the Enquiry Officer has relied upon the scientific witness and that can only be taken as an evidence and cannot be a proof for the purpose of finding fault with the petitioner. He would also contend that the Enquiry Officer has found that there was no sign of forgery and only the entries stood cancelled and therefore, the benefit of doubt should have been given to the petitioner and the acceptance of the opinion of the handwriting expert is against the provisions of Evidence Act. 6. Therefore, on the whole, the efforts taken by the petitioner in the affidavit as well as the learned counsel for the petitioner is about the appreciation of evidence of various witnesses before the Enquiry Officer. In the departmental enquiry, while deciding about the validity or otherwise of the punishment imposed by the authorities, this Court while exercising the jurisdiction under Article 226 of the Constitution cannot re-appreciate evidence given before the Enquiry Officer and the finding given by the Enquiry Officer in that regard except in cases where there are no evidence at all or when finding is perverse. This Court, while deciding about the legality or otherwise of the punishment imposed by the Government, is not sitting as an appellate authority to appreciate the evidence and to reverse the factual finding of the Enquiry Officer. 7. Basically, while exercising the jurisdiction in respect of punishment in the departmental proceedings, this Court is concerned with the following of the basic principles of law, including the principles of natural justice. In some instances where the delinquent officer was not given proper opportunity by the Enquiry Officer or cases where the relevant documents which are called for have not been provided or where sufficient opportunity to cross- examine the witnesses which is relevant relating to the charges framed, which are all vital in establishing the principles of natural justice and rule of law, the power of judicial review can be exercised under Article 226 of the Constitution of India and not sitting as an appellate authority re-appreciating the evidence. Therefore, the entire base with which the petition has been filed questioning about the appreciation of evidence by the Enquiry Officer is a fallacy. 8. Apart from the violation of principles of natural justice, this Court can interfere in cases of punishment where it is shockingly disproportionate to the charge framed against the delinquent. On the facts of the present case, the charges are grave https://hcservices.ecourts.gov.in/hcservices/ in nature. It is true that the charges are not relating to forgery, but relating to the tampering of records by pouring ink or otherwise. It is not the complaint of the petitioner that the Enquiry Officer has not given him sufficient opportunity. A perusal of the records show that the petitioner has exhausted the fullest opportunity for the purpose of eliciting points from various witnesses and the Enquiry Officer has, in fact, in detail considered about each and every one of the aspect of the evidence given by various witnesses and in that view of the matter, I am of the considered view that the principles of natural justice have been fully complied with by the Enquiry Officer while conducting the enquiry, which is sine qua non for proper enquiry in disciplinary proceedings. In the absence of any defect in the enquiry conducted by the Enquiry Officer, there is absolutely nothing to hold that the procedure followed by the Enquiry Officer is either wrong or perverse. 9. Coming to the opportunity of explanation, it is not in dispute that at the time when the charges were framed the petitioner was given opportunity to give explanation and after a thorough enquiry was conducted in detail, the Enquiry Officer's report was furnished to the petitioner and he has also given further representation and thereafter, a show cause not was issued intimating the proposed punishment and subsequently, further explanation was received from the petitioner and the matter was referred to the Tamil Nadu Public Service Commission and it was only thereafter, the punishment came to be imposed under the Tamil Nadu Pension Rules, since in the meantime the petitioner has retired from service. There is absolutely no ground to interfere either on the basis that while passing the impugned order of punishment the respondents have violated the principles of natural justice or on the basis that the punishment imposed on the petitioner is shockingly disproportionate to the charges framed against him. 10. In such view of the matter, I am of the considered view that the petitioner is not entitled to any relief claimed in this writ petition and my above view is fortified by the well settled proposition in law that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction shall not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since the High Court does not sit as an appellate authority over the https://hcservices.ecourts.gov.in/hcservices/ factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities, as observed Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759. Finding no reason to interfere with the impugned orders, this writ petition is dismissed. No costs. sasi Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To: 1. The Secretary to Government State of Tamil Nadu Home Police I Department Fort St.George, Chennai – 600 009. 2. The Director General of Police, Chennai – 600 004. PUR(CO) SR/13.11.2009 W.P.No.344 of 2008 https://hcservices.ecourts.gov.in/hcservices/