IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.02.2009 C O R A M THE HONOURABLE Mr. JUSTICE S. NAGAMUTHU Writ Petition No.42900 of 2006 (T) (O.A.No.1098/1999) R.Elango ..Petitioner -Vs- 1. The Superintendent of Police, Thanjavur District. 2. The Deputy Inspector General of Police, Thanjavur Range, Thanjavur. ..Respondents This writ petition came to be numbered by way of transfer of O.A.No.1098 of 1999 from the file of the Tamil Nadu Administrative Tribunal with a prayer to issue a Writ of certiorari to call for the records of the respondents relating to the orders passed in PR.No.78/97 dated 13.07.1998 and quash the same. For Petitioner : Mr.K.Venkataramani, Senior counsel for Mr. M. Muthappan For Respondents : Mrs.Malarvizhi Udhyakumar, Spl.Govt.Pleader. O R D E R During the year 1996, the petitioner was a Head-Constable in Thanjavur District. The Superintendent of Police, Thanjavur by his proceedings in PR.No.78 of 1997 framed charge against the petitioner under Rule 3(b) of the Tamil Nadu Police Subordinate Service (D & A) Rules. According to the charge, on 13.12.1996 the petitioner escorted two prisoners from Central Prison, Trichirapalli for being produced before the Judicial Magistrate No.II, Tanjore. After they were so produced as per the directions of the learned Judicial Magistrate, the petitioner along with another Constable escorted the said two accused back to the Central Prison. When they were produced before the Jail authorities, it was found that both the prisoners were in drunken state. https://hcservices.ecourts.gov.in/hcservices/ 2. For having allowed the prisoners to take illicit arrack while in custody, the petitioner was charged. Since the petitioner denied the same, an enquiry Officer was appointed. The Deputy Superintendent of Police, Pattukottai- the Enquiry officer, after holding enquiry, submitted a report to the Superintendent of Police holding the charge proved. During the enquiry, as many as three witnesses were examined and a number of documents were exhibited. Admittedly, the petitioner was allowed to cross examine the witnesses. The petitioner, finally submitted a written explanation wherein he had stated that the prisoners while being brought back to Trichirapalli, wanted water to drink and therefore, they were taken to a nearby tea stall where they took water. The explanation further proceeds to say that the petitioner never allowed the prisoners to take illicit arrack at all. He would further state that the prisoners had taken some tablets and the same would have had the effect of alcohol. It is further stated that it was also possible that without the knowledge of the petitioner, the alcohol would have been mixed up in the drinking water. In any event, according to the explanation, to the knowledge of the petitioner, the prisoners did not take any other intoxicating substance at all. The said explanation was rejected. The enquiry Officer based on the oral as well as documentary evidence, held that the petitioner is guilty of the charge. Thereafter, the Superintendent of Police, Thanjavur by his order dated 13.07.1998 imposed a punishment of stoppage of increment for three years with cumulative effect. 3. Challenging the said order of the Superintendent of Police, the petitioner filed an appeal to the Deputy Superintendent of Police, Tanjore on 01.08.1998. But no orders were passed within a period of six months from the date of presentation of the said appeal. Therefore, he filed O.A.No1098 of 1999 before the Tamil Nadu Administrative Tribunal, challenging the order of the Superintendent of Police. The said original application was admitted by the Tribunal on 17.02.1999. On transfer, the said O.A has been renumbered as W.P.No.42900 of 2006 and that is how, the same is now before this Court for disposal. 4. At the outset, the learned Special Government Pleader would submit that subsequent to the admission of O.A., the Deputy Superintendent of Police,namely, the appellate authority passed a final order on 08.03.1999 in R.C.No.D2.85/80/98, thereby, rejecting the appeal preferred by the petitioner. Therefore, according to her, it is open to the petitioner to challenge the order of the appellate authority. She would further submit that since the appeal itself has been disposed of, without challenging the same, it is not now open to the petitioner to challenge the order of the disciplinary authority in this writ petition. On this preliminary objection, the learned Special Government Pleader would pray for dismissal of the writ petition. https://hcservices.ecourts.gov.in/hcservices/ 5. In answer to the same, the learned senior counsel appearing for the petitioner would submit that since the appeal was not disposed of within six months from the date of presentation of the appeal, as per Section 20(2)(b) of the Administrative Tribunals Act 1985, the petitioner filed original application within the statutory period. Thus according to the learned senior counsel, the writ petition is maintainable. He would further submit that in view of Section 19, Sub clause 4 of the Act, the order passed by the appellate authority is non-est in the eye of law and so, the said order would not stand in the way of the petitioner from further prosecuting this writ petition. 6. Since such a serious doubt is raised by the senior counsel regarding the maintainability of the writ petition in view of the later development, I deem it proper to decide the said question first. 7. Admittedly, the appeal preferred by the petitioner was not disposed of by the Deputy Inspector General of Police, Thanjavur within six months. A close reading of Section 20(2)(b) of the Act would go to show that in such an event, the aggrieved is entitled to challenge the order of the disciplinary authority by filing original application before the Tamil Nadu Administrative Tribunal. In this case, the petitioner has rightly done so. 8. Now, Section 19(4) of the Act needs consideration. Under the said provision, if an application has been admitted by the Administrative Tribunal, then automatically, the proceeding which is under challenge shall abate, unless there is a contrary order issued by the Tribunal. In this case, admittedly, the Tribunal did not pass any order permitting the appellate authority to proceed further to dispose of the appeal. Therefore, by operation of law, the appeal preferred by the petitioner stands abated with effect from 17.02.1999 on the admission of O.A by the Tamil Nadu Administrative Tribunal. Therefore, as rightly pointed out by the learned senior counsel, the order passed by the appellate authority is without jurisdiction and so the same is non-est in the eye of law and thus the said order of the appellate authority would not in any manner stand in the way of the petitioner in prosecuting this writ petition. 9. Coming back to the findings of the first respondent, I do not find any infirmity in the same. Though the learned senior counsel tries to assail the order of the first respondent on the ground that there is no medical proof that the prisoners were found drunk, I am not persuaded by the same. Though it is admitted by P.W.3 that there was a doctor available in the jail who would be competent to give https://hcservices.ecourts.gov.in/hcservices/ medical certificate regarding the fact as to whether the prisoners were drunk or not, that itself would not vitiate the findings of the enquiry officer as well as the disciplinary authority. P.W.3 has stated that when the prisoners were produced before him, from the gait and other behaviours of the prisoners, he could pursue that they were drunk. In my considered opinion, it is possible for any person to find out even without the aid of a doctor that a person before him is drunk or not from the disorderly behaviour. It is common knowledge that on seeing the way in which a person behaves and walks un-steadily, it could be easily ascertained that a person is drunk. Of course, it is true that whether the prisoners were drunk or not could also be ascertained by medical examination. Such medical examination would be required only in a case where proof is required beyond reasonble doubt as it is done in the criminal cases. Here, in departmental proceedings, there cannot be any quarrel that conclusions are arrived at on the basis of preponderance of probabilities. Here as it has been concluded by the enquiry officer, there are circumstances spoken to by P.W.3 and also the so-called explanations offered by the petitioner, which would satisfy the test of probability to come to the conclusion that the prisoners were drunk. Admittedly, the prisoners were in the custody of the petitioner and another constable for the whole day. It was their responsibility to see that they did not take any liquor while in custody. But, the petitioner has failed to discharge the duty properly. Thus the petitioner is guilty of the charge. The enquiry Officer has rightly concluded so. The respondent has also rightly accepted the said finding. On going through the entire facts and circumstances, I do not find any infirmity in the said finding arrived at by the respondents. 10. Insofar as the quantum of punishment is concerned, the learned senior counsel would submit that the quantum of punishment is shockingly disproportionate to the gravity of the charge. According to him, it is not seen from records that the petitioner behaved in such manner on any previous occasion. According to him, the petitioner has got a clean record of service. Now, he is around 58 years. Because of the punishment, the petitioner would be loosing huge sum in his pension and other monetary benefits. He would further submit that after the punishment impugned in this writ petition, again the petitioner has been maintaining a clean record of service. 11. Having regard to the above, I am of the view that imposing of punishment of reduction in time scale of pay by three stages for three years without cumulative effect shall meet the ends of justice. To that extent, the quantum of punishment alone needs to be modified. https://hcservices.ecourts.gov.in/hcservices/ 12. In the result, the Writ Petition is partly allowed. The punishment of reduction in time scale of pay by three stages for three years with cumulative effect is set aside and instead, there shall be a punishment of reduction in time scale of pay by three stages for three years without cumulative effect. No costs. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar pal To 1. The Superintendent of Police, Thanjavur District. 2. The Deputy Inspector General of Police, Thanjavur Range, Thanjavur. + 1 c.c. to M/s. T. Ayngaraprabhu, Advocate. S.R.No.6850. + 1 c.c. to The Government Pleader. S.R.No.6997. W.P.No.42900 of 2006 GR (CO) GSK 04.03.2009. https://hcservices.ecourts.gov.in/hcservices/