IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 08.09.2009 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.11766 of 2007 R.Umashankar Inspector of Police, H.R.&C.E. Department, At Madurai. .. Petitioner Vs 1.Commissioner of Police, Trichirapalli City(i/c) & Deputy Inspector General of Police, Trichirapalli Range, Trichy. 2.Inspector General of Police (Law & Order), Chennai-4. 3.Director General of Police, Chennai-4. .. Respondents Prayer: This petition came to be numbered by transfer of O.A.No.829 of 2002 from the file of the Tamil Nadu Administrative Tribunal praying this court to issue the writ of Certiorari to call for the records of the First Respondent herein passed in his C.No.B2/PR6/99 dated 9.5.99 imposing a punishment of reduction in time scale of pay by 3 stages for 3 years with cumulative effect and the consequential order passed by the Second Respondent herein in his Rc.No.119835/AP2(1)/2000 dated 13.6.2000 confirming the punishment passed by the First Respondent herein, and Quash the same with all consequential monetary and service benefits. For Petitioner : Mr.Ravi Shanmugam For Respondents : Mr.P.Muthukumar, G.A., ORDER The petitioner was an Inspector in Kollencode circle in Kanyakumari District from 19.06.1993 to 06.09.1995. He was incharge of two police stations under the said circle, namely Nithiraivilai Police station and Kollancode police station. https://hcservices.ecourts.gov.in/hcservices/ 2.One Gopalakrishnan of Koikathoppu village under Nithiraivilai police station limits was found dead in the river bed of Thamiraparani on 24.10.1992. A case in Nithiraivilai police station was registered under section 174 of Cr.P.C. in crime No.231 of 1992. At that time, one Mr.Panneerselvam was the Inspector incharge of the police station. One Mr.Kruz Michael, Head Constable of the Nithiravilai police station, investigated the matter for some time. On a specific direction from the Deputy Superintendent of Police, Colachel, in the memo C.No.64/SDCC/94 dated 17.01.1994, the petitioner took up further investigation on 20.01.1994. 3.While so, a charge memo dated 05.08.1997 was issued by the Deputy Inspector General of Police, Tirunelveli, under rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) rules 1955, hereinafter called the Rules, making two charges and those charges are as follows: "i)Gross neglect of duty by not investigating the case in Nithiravilai P.S.Cr.No.231/92 u/s.174 Cr.P.C. as of murder and written first C.D. dated 28.1.94 without examining the witnesses. ii)Gross neglect of duty by not altering the section of law in Nithiravilai P.S. Cr.No.231/92 u/s.174 Cr.P.C. into 302 IPC on receipt of final opinion as to the cause of death of the deceased Gopalakrishnan on 25.4.94 and thereby investigated the above said case in a purfunctory manner." 4.Thereafter, an enquiry was conducted by the Additional Superintendent of police, Nagercoil and 7 witnesses were examined on the side of the department and 8 documents were marked as exhibits on the side of the department. The enquiry officer gave a report dated 31.10.1998, finding the petitioner guilty of the charges. Based on the said report, the first respondent issued the punishment order dated 09.05.1999 imposing the punishment of reduction in time scale of pay by 3 stages for 3 years with cumulative effect. It is also stated in the order that its effect on pension is considered and intended. 5.The petitioner preferred an appeal dated 15.06.1999 to the second respondent. The appeal was rejected by the second respondent by an order dated 13.06.2000. 6.The petitioner filed O.A.829 of 2002 (WP 11766/07) to quash the aforesaid order dated 09.05.1999 of the first respondent and 13.06.2000 of the second respondent. Heard Mr.Ravi Shanmugam, counsel for petitioner and Mr.P.Muthukumar, Government Advocate for the respondents. https://hcservices.ecourts.gov.in/hcservices/ 7.At the outset, the learned counsel for petitioner submits that though a prayer was made to quash the order of the disciplinary authority as well as the appellate authority, the petitioner confines his prayer for remand to the second respondent for fresh consideration in accordance with the Rules. His main ground of attack is that the order of the second respondent is a cryptic one, without containing any reasons and hence the same is in violation of the rule 6(1) of the Rules. The learned counsel submits that the appellate authority is duty bound to pass an order in accordance with the rule 6(1) of the Rules. But in this case, the second respondent passed an order, which does not satisfy the requirement of the rule 6 (1). 8.The learned counsel elaborates his submission and submits that the order of the appellate authority may be a brief one, but it should contain the reasons and it should consider the evidences adduced in the enquiry and also various other points that were put forth by the appellant in the grounds of appeal. It is submitted that the petitioner submitted grounds of appeal running to 9 pages and made several contentions and none of those contentions were considered by the appellate authority. 9.The learned counsel also submits that the order of the second respondent appellate authority is opposed to the judgments of this Court made in AROKIADOSS Vs. THE DEPUTY COMMISSIONER OF POLICE & ANOTHER, reported in 1989 WRIT.LR 274 and in N.KANDASAMY VS. DEPUTY INSPECTOR GENERAL OF POLICE AND ANOTHER, reported in 2006(4) MLJ 1382. 10.On the other hand, the learned Government Advocate seeks to sustain the order relying on the reply affidavit filed by the respondents. 11.I have considered the submissions made by either side. 12.The sole question that falls for consideration is, whether the second respondent has passed the order dated 13.06.2000, in accordance with rule 6(1) of the rules. Hence, rule 6(1)of the rules is extracted hereunder. "Rule 6.- (1) In the case of an appeal against an order imposing any penalty specified in Rule 2, the appellate authority shall consider:- (a) Whether the facts on which the order was based have been established; (b) Whether the facts established afford sufficient ground for taking action; and https://hcservices.ecourts.gov.in/hcservices/ (c) whether the penalty is excessive, adequate or inadequate and after such consideration, shall pass orders- (i)confirming, enhancing, reducing or setting aside the penalty; or (ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction, as it may deem fit, in the circumstances of the case; Provided that - (a) if the enhanced penalty which the appellate authority proposed to impose is one of the penalties specified in clauses (d),(e)(3),(h)(i) and (j) of Rule 2 and an enquiry under sub-rule of Rule 3 has not already been held in the case, the appellate authority shall, subject to the provisions, of sub- rule(c) of Rule 3, itself hold such enquiry or direct that such enquiry be held in accordance with the provisions of sub-rule(b) of Rule 3 and thereafter on consideration of the proceedings of such enquiry and after giving the appellant a reasonable opportunity of making representation against the penalty proposed on the basis of the evidence adduced during such enquiry, make such order as it may deem fit. (b) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties, specified in claused (d),(e)(3),(h),(i) and (j) of Rule 2 and an enquiry under sub-rule (b) of Rule 3 has already been held in the case, the appellate authority shall, after giving the appellant reasonable opportunity for making representation against the penalty proposed to be imposed on the basis of the evidence adduced during the enquiry, make such order as it may deem fit; and (c) no order imposing an enhanced penalty shall be passed in any other case unless the appellant has been given a reasonable opportunity, as far as may be in accordance with the provisions of sub-rule (b) of Rule 3 of making representation against such enhanced penalty." 13. The order dated 13.06.2000 of the Second respondent, the appellate authority, is also extracted hereunder: "ORDER: This is an appeal prefered by Tr.R.Umasankar, Inspector of Police, Pudukottai District, formerly of Kanyakumari District, against the punishment of https://hcservices.ecourts.gov.in/hcservices/ reduction in pay by three stages for three years with cumulative effect, awarded by the Commissioner of Police, Trichy City, I/C, Deputy Inspector General of Police, Trichy Range holdings the following charges against him as proved:- "(i) Gross neglect of duty by not investigated the case in Nithravilai Police Station Cr.No.231/92 U/s 174 Cr.P.C as of murder and written first C.D. Dated 28.1.94 without examining the witnesses and, (ii) Gross neglect of duty by not attening the section of law in Nithravilai P.S.Cr.No.231/92 u/s.174 Cr.P.C. into 302 IPC on receipt of final opinion as to the cause of death of the deceased Gopalakrishnan on 25.4.94 and thereby investigated the above said case in a perfunctory manner". 2) I have carefully gone through the appeal and the connected records. Both the counts of charges have been rightly held as proved and the punishment awarded is not excessive. He has not raised any valid fresh points warranting interference. 3. The appeal is rejected. " 14.The petitioner specifically pleaded in para 6(18) of the application as follows: "The applicant states that the oral enquiry was conducted exparte even after the applicant had submitted a request to postpone the enquiry as he was on other duty. The Enquiry Officer without adjourning the enquiry has proceeded with exparte and never fixed any dates for cross examination of the witnesses nor intimated the applicant that he would cross examine the witness on a particular date. This action of the Enquiry Officer is in violation of principles of natural justice and statutory rules. When the applicant had raised the above ground before the disciplinary authority, the appellate authority and the reviewing authority it is the duty of the above authorities to have ordered De novo enquiry so as to give the applicant all the reasonable opportunities. But in a mechanical manner the punishment was confirmed." 15.Though the respondents filed a detailed reply affidavit, the issue raised in para 18 was not specifically dealth with, in the reply affidavit. Further, the petitioner has stated as follows in para 15 of the appeal petition. The same is extracted hereunder: https://hcservices.ecourts.gov.in/hcservices/ "15) The enquiry officer, flouted the cardinal principles of natural justice while conducting the oral enquiry and failed to observe the guidelines issued by the former IGP (HOW TO CONDUCT AN EXPARTE ENQUIRY AND PUT UP AN EXPARTE MINUTE) IN CIRCULAR MEMORANDUM .No.188896/API/74 DATED 01.02.1975. Reasonable opportunity, as enunciated in T.R.Varma's case by the apex court was anti-thesis to the Enquiry officer and he did give me reasonable time to file my written statement of defense." Therefore, the petitioner raised an issue that he was not given an opportunity in enquiry and the enquiry was conducted when he was posted to other duties. If such a specific plea was raised, it is enjoined on the second respondent to consider and to decide the issue, one way or other. But, it is unfortunate that the second respondent has not satisfactorily discharged his statutory duties enjoined under the rules. 16.Further, the petitioner specifically averred in his appeal petition that the deceased Mr.Gopalakrishnan was an alcoholic for years and that he used to wander and roam over at various places. It is also pointed out that the injury caused to him would have been caused by the small rocks on the river bed. The petitioner also raised an important issue that when the Doctor gave a report that the deceased suffered head injury, he did not give a concrete opinion, whether the head injury was homicidal, suicidal or accidental. In this connection, the petitioner relies on a passage in para 10 of his appeal petition and the same is extracted hereunder: "The deceased, Gopalakrishnan was an alcoholic for years. He used to wander and roam all over the river bunds of Thamiraparani for days (if not months) together without visiting his home. Always there will be a little quantity of water flowing in the said river. Moreover the bottom of the river is full of small rocks and not sand out and out. In short, Dr.Esakkimuthu was vacillating and not straightforward in his answers to the questionaire put by me. He was evasive in his opinion. He did not give a concrete opinion whether the head injury was homicidal, or suicidal or accidental. That this witness was not examined in the oral enquiry, is yet another story. Therefore the conclusions arrived at by the DISCIPLINARY AUTHORITY in paragraph 6 of his final order are nothing but assumptions and presumptions if not conjectures." https://hcservices.ecourts.gov.in/hcservices/ 17.The grievance of the petitioner is that the 2nd respondent failed to consider the aforesaid contentions raised in the appeal petition. 18.The petitioner further submits that the matter was pursued by the family members of the deceased, doubting that the cause of the death was due to murder. In these circumstances, the matter was subsequently referred to CBCID. Even the CBCID did not make any progress, according to the petitioner. These facts would go to prove that the department was not correct in alleging that the petitioner was guilty of negligence in the investigation. 19.It is also submitted that even assuming that there is some lethargy in the action of the petitioner, the imposition of major penalty is not warranted, particularly when the other Inspector Mr.Panneerselvam was imposed with the punishment of censure. While considering the quantum of punishment, the second respondent as an appellate authority failed to consider the meritorious service rendered by the petitioner for 29 years with 70 rewards. 20.In my view, the submissions of the learned counsel appearing for the petitioner are well founded. This Honourable Court, in a similar matter, in 1989 writ law reporter 274 considered rule 6(1) of the Rules and it has been held as follows at para 3 and 4 of the said judgment. "The rule enjoins the concerned authority to consider the three aspects set out therein specifically. Unless the appellate authority considers them it cannot be said that it has carried out its duties properly. The Supreme Court had occasion to discuss a similar question under R.27(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Dealing with the word 'consider' used in the said rule, the Supreme Court observed that the word 'consider' implies due application of mind-vide R.P.Bhatt v. Union of India. The following paragraph in the above judgment of the Supreme court can be usefully referred to with advantage- "The word 'consider' in R.27(2) implies 'due application of mind'. It is clear upon the terms of R.27(2) that the appellate authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) Whether the findings of the disciplinary authority are warranted by the evidence on record; https://hcservices.ecourts.gov.in/hcservices/ and (3) Whether the penalty imposed is adequate and thereafter pass orders confirming, enhancing etc, the penalty, or may remit back the case to the authority which imposed the same. R27(2) casts a duty on the appellate authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof. There is no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down in the Rules had been complied with and if not, whether such non- compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were unwarranted by the evidence on record. It seems that he only applied his mind to the requirement of clause (2) of R.27(2) viz., whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements ofR.27(2) of the Rules the impugned order passed by the Director General is liable to be set aside." 4. In the present case, the order of the appellate authority does not indicate, whether the appellate authority considered the materials on record in the light of rule 6(1) of the Rules. He whould have discussed the relevant evidence and found whether the the facts on which the order of the disciplinary authority was based have been established. He should have also considered whether the facts afford sufficient ground for taking disciplinary action and whether the penalty is excessive, adequate or inadequate. As the order of the appellate authority does not show that he has considered the relevant matters prescribed under R.6(1) of the Rules, the order is vitiated. On this ground the order is liable to be quashed." This judgment was followed by another learned Judge of this Court in the decision reported in (2006) 4 MLJ - 1382. 21.In my view these decisions squarely cover the issue. The second respondent appellate authority has passed a cryptic order, without considering any of the issues that were raised by the petitioner in the appeal petition. As rightly pointed out by the learned Counsel for the petitioner, the appellate order of the 2nd https://hcservices.ecourts.gov.in/hcservices/ respondent is not in conformity with the rule 6(1) of the Rules. In these circumstances, I am left with no other option, except to set aside the order dated 13.06.2000 of the second respondent confirming the order of the first respondent. Accordingly, the order dated 13.06.2000 of the 2nd respondent is set aside and the matter is remitted to second respondent to consider afresh the appeal petition dated 15.06.1989 submitted by the petitioner against the order dated 09.05.1999 of the first respondent and to pass orders thereon, on merits and in accordance with law, within a period of 12 weeks, from the date of receipt of the copy of this order. With the above direction, this writ petition is disposed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar pri To 1. The Commissioner of Police, Trichirapalli City(i/c) & Deputy Inspector General of Police, Trichirapalli Range, Trichy. 2. The Inspector General of Police (Law & Order), Chennai-4. 3. The Director General of Police, Chennai-4. 1 cc To The Government Pleader, SR.45372. 1 cc To M/s.Sudha Ravi Associates, Advocate, SR.45200. WP.No.11766 of 2007 SP(CO) RVL 01.10.2009 https://hcservices.ecourts.gov.in/hcservices/