IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:24.02.2011 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.36562 of 2006 and M.P.No.2 of 2006 N.Gnanasekaran .. Petitioner vs. 1.The Government of Tamil Nadu rep. By its Secretary Home Department, Fort St.George Chennai 9. 2.The Deputy Commissioner of Police Crime & Traffic Salem City, Salem. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus as stated therein or any other appropriate writ order on direction on the nature of the Writ calling for the records of the respondents pertaining to the orders in G.O.(2D) No.348 Home (Pol. VI) Dept. dt. 14.6.2006 G.O. (2D) No.202 Home (Pol. VI) Dept. dt. 12.6.2003 and G.O. 3 (D) No. 1051 Home (Pol.VI) dept. dt. 20.11.2000 in so far as they went against the petitioner on the file of the 1st respondent and the order passed by the 2nd respondent in P.R. No.30/H1/98 dated 22.12.1998 and quash the same and consequently direct the respondents to treat the interregnum period as duty period with all monetary and other benefits.. For petitioner : Mr.K.Venkatramani,Sr.Counsel for Ms.Selvi George For respondents : Mr.R.Anitha, Addl.Govt.Pleader .. ORDER The writ petitioner was working as a Police Constable Grade II https://hcservices.ecourts.gov.in/hcservices/ with effect from 9.6.1993. A charge was framed against him on 8.8.1998 to the effect that he deserted the guard duty at Lakshmi Vilas Bank on 1.8.1998 at 03.15 hours abandoning the Fire Arms in the guard room and also left the gates open. The Enquiry Officer held that the charge was proved. The second respondent, by order dated 22.12.1998 dismissed him from service, as against which an appeal was filed before the first respondent, in which the punishment stood modified in G.O.3(D) No.1051, Home Department dated 20.11.2000 into one of reduction in time scale of pay by three stages for a period of six years i.e. Rs.3050/- in the scale of pay of Rs.3050-75-3950-80- 4590 with effect from 20.12.1998 and increments should be postponed for six years after the expiry of the period of the reduction in time scale of pay mentioned above. 2. It was against the said order of the Government, the petitioner filed a review to modify the order, which was rejected in G.O.(2D) No.202, Home Department dated 12.6.2003. Then, the petitioner filed another appeal to the Chief Secretary on 4.1.2004, which was forwarded to the first respondent, who rejected the same in G.O.(2D) No.348, Home Department dated 14.6.2006. 3. The said orders are challenged by the petitioner on the ground that the first respondent imposed two punishments which are not permissible in law, viz., (i) reduction in time scale of pay for a period of six years with effect from 20.12.1998 and (ii) postponement of increments for a period of six years after the expiry of the period of reduction in time scale of pay and the punishment is excessive; that it is a case of no evidence; that the witnesses are not independent and that the petitioner had already suffered great mental agony for nearly 7 years, apart from other grounds. 4. In the counter affidavit, it is stated by the respondent that the petitioner was awarded composite punishment of reduction of time scale of pay by three stages for a period of six years and postponement of future increments for six years which is very much within the jurisdiction and such punishment was awarded looking into the gravity of the delinquency that is, abandoning the fire arms in the guard room and left the gates of the bank open and therefore, the punishment is commensurate to the gravity of the charge and even though the Prosecution Witness No.5 (PW5) referred to by the petitioner has clearly given evidence against the petitioner, the petitioner has chosen to take only a part of the evidence and the same has been clearly proved by the Prosecution Witness No.9 (PW9), Sub Inspector of Police who has stated that the evidence of PW5 has been wrongly quoted. It is stated that the persons involved in similar charge were punished with dismissal from service but the petitioner was shown mercy in modifying the punishment. 5. Mr.K.Venkataramani, learned senior counsel appearing for the petitioner would submit that this is a case where the original order https://hcservices.ecourts.gov.in/hcservices/ of punishment in the year 1998 was dismissal from service, which was modified in the year 2000 into one of reduction in time scale of pay for six years and postponement of increments for six years after the expiry of the punishment of reduction in time scale of pay. It is his contention that actually there are two punishments for the same act; one is the reduction in time scale of pay for six years in three stages and another, postponement of increments for six years after the punishment of reduction in time scale of pay and according to him, the total punishment is for a period of 12 years. By relying upon the judgment of the Supreme Court in Chairman-cum-Managing Director, Coal India Ltd., and another vs. Mukul Kumar Choudhuri and others [(2009) 15 SCC 620], he would submit that the punishment is shockingly disproportionate to the charge. 6. On the other hand, it is the contention of the learned Additional Government Pleader that considering the nature of work entrusted with the petitioner and on the admitted fact of the petitioner leaving the gun in guard room and keeping the bank doors open, the charge is certainly very grave which cannot be very lightly taken note of. 7. The contention of the learned senior counsel for the petitioner that the evidence of PW5 has not been properly appreciated is not correct. What PW5 has stated is that on the surprise inspection it was found that the petitioner and others had abandoned the bank premises by keeping it open and the petitioner also left the gun in the guard room itself and on seeing that, the Sub Inspector of Police (PW9) intimated the same to the City Armed Reserve and the Police Constable 680 (Paramasivam) was deputed from the Armed Reserve for sentry duty of the bank. It is the said Armed Reserve Police Constable Paramasivam examined as P.W.5, who has stated that at the time when he came to take charge as sentry, he found the Sub Inspector of Police and other few constables present. This evidence does not mean that the petitioner and other police constables were present at the time when the surprise inspection was made by PW9. Therefore, the point insisted by the learned counsel for the petitioner as if the evidence of PW5 has been misconstrued has no meaning. Merely because PW5 has stated that at the time when he reached the premises for sentry duty, he found some police constables including the petitioner present, it does not mean that it is a case of no evidence against the petitioner. Therefore, the contention of the learned counsel for the petitioner that it is a case of no evidence has no basis. 8. As far as the proportionality of punishment is concerned, it is not in dispute as it is stated in the counter affidavit that all other police men who were found fault along with the petitioner were dismissed and it is only in respect of the petitioner, on appeal, the first respondent modified the punishment of dismissal. As held by https://hcservices.ecourts.gov.in/hcservices/ the Supreme Court in Chairman-cum-Managing Director, Coal India Ltd., and another vs. Mukul Kumar Choudhuri and others [(2009) 15 SCC 620] relied upon by the learned counsel for the petitioner, this Court while making judicial review of departmental enquiry is not sitting in appeal to reappreciate the evidence as appellate authority and it is only the decision making process with which this Court can interfere and not with the decision itself. The decision making process includes the procedural irregularity in conducting the departmental proceedings including the denial of the principles of natural justice, absence of fairness in conducting the enquiry and not giving proper opportunity. The imposing of punishment is also forming an integral part of the disciplinary power entrusted with the employer and it is not for this Court to substitute its own view even in respect of punishment unless, of course, it shocks the conscience of the Court. In this regard, it is useful to refer to the following portion of the judgment of the Supreme Court in the above case: " 17. Dealing with the question of proportionality with regard to punishment in disciplinary matters, the Court said: (G. Ganayutham case, SCC pp. 479-80, paras 32-34) “32. Finally, we come to the present case. It is not contended before us that any fundamental freedom is affected. We need not therefore go into the question of ‘proportionality’. There is no contention that the punishment imposed is illegal or vitiated by procedural impropriety. As to ‘irrationality’, there is no finding by the Tribunal that the decision is one which no sensible person who weighed the pros and cons could have arrived at nor is there a finding, based on material, that the punishment is in ‘outrageous’ defiance of logic. Neither Wednesbury8 nor CCSU9 tests are satisfied. We have still to explain ‘Ranjit Thakur12’. 33. In Ranjit Thakur12 this Court interfered with the punishment only after coming to the conclusion that the punishment was in outrageous defiance of logic and was shocking. It was also described as perverse and irrational. In other words, this Court felt that, on facts, Wednesbury and CCSU tests were satisfied. In another case, in B.C. Chaturvedi v. Union of India a three-Judge Bench said the same thing as follows: (SCC p.762, para 18) ‘18. … The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own https://hcservices.ecourts.gov.in/hcservices/ conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinaryauthority/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.’ Similar view was taken in Indian Oil Corpn. Ltd. v. Ashok Kumar Arora that the Court will not intervene unless the punishment is wholly disproportionate. 34. In such a situation, unless the court/tribunal opines in its secondary role, that the administrator was, on the material before him, irrational according to Wednesbury or CCSU norms, the punishment cannot be quashed. Even then, the matter has to be remitted back to the appropriate authority for reconsideration. It is only in very rare cases as pointed out in B.C. Chaturvedi case that the Court might—to shorten litigation—think of substituting its own view as to the quantum of punishment in the place of the punishment awarded by the competent authority. (In B.C. Chaturvedi and other cases referred to therein it has however been made clear that the power of this Court under Article 136 is different.) For the reasons given above, the case cited for the respondent, namely, State of Maharashtra v. M.H. Mazumdar cannot be of any help.” (emphasis in original) 9. The facts of the present case do not come under the concept of the rarest of rare circumstances for the purpose of warranting this Court to substitute its view in respect of quantum of punishment. In fact, the authorities considered more than twice about the case of the petitioner including the quantum of punishment for modifying the same and rejected the case of the petitioner. In the circumstance that action has been taken against all other police officials involved also resulting in their dismissal, it is not possible for this Court to take a different stand in respect of the petitioner alone. In fact, the first respondent has taken a lenient view in modifying the punishment of dismissal. It cannot be stated https://hcservices.ecourts.gov.in/hcservices/ that the charge made against the petitioner is flimsy in nature or the punishment imposed is not proportionate to the charge framed, especially taking note of the fact that the petitioner is employed in the police force. In such view of the matter, I am unable to accept the contention of the learned counsel for the petitioner. Accordingly, the petitioner is not entitled for any relief claimed and the writ petition fails and the same is dismissed. No costs. Connected miscellaneous petition is closed. Kh Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1.The Secretary Government of Tamil Nadu Home Department, Fort St.George Chennai 9. 2.The Deputy Commissioner of Police Crime & Traffic Salem City, Salem. + 1 CC to Mrs.Selvi George Advocate SR.13794 SSK(CO) VC(10.3.2011) P.D.Order in W.P.No.36562 of 2006 https://hcservices.ecourts.gov.in/hcservices/