IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.08.2010 CORAM THE HONOURABLE MR. JUSTICE T.RAJA W.P.No.48074 of 2006 (T) (O.A.No.1296 of 2000) V.Balasubramanian .. Petitioner - Vs - 1.The Superintendent of Police Tirunelveli Dist. 2.The Deputy Inspector General of Police Tirunelveli Range Tirunelveli. .. Respondents Writ Petition came to be numbered by transfer of O.A.No.1296 of 2000 on the file of the Tamil Nadu Administrative Tribunal praying to call for the records of the 1st respondent in connection with the impugned order in PR No.82/99, dated 03.01.2000 and quash the same and further direct the respondents to reinstate the applicant into service with all consequential service and monetary benefits and grant him such other further relief. For Petitioner : Mr.K.Venkatramani, SC for Mr. M.Muthappan For Respondents : Mr.S.Gopinathan, AGP ORDER The petitioner was issued with a charge memo for the following charge : Highly reprehensible conduct in having behaved in a disorderly manner with Kottursamy S/o Chellasamy Thevar of Chockampatti in a drunken mood on 02.04.99 and being involved in a criminal case in Kadayanallur PS Cr.No.329/99 under Section 4(1)(j) TNP Act and 75 MCP Act. After receiving the above said charge memo, the petitioner has submitted his explanation denying the charge. Having not satisfied https://hcservices.ecourts.gov.in/hcservices/ with the explanation offered by the petitioner, enquiry officer was appointed. The enquiry officer, after examining P.Ws.1 to 4 and by giving all reasonable opportunities to the petitioner, submitted his report holding him guilty of the charge levelled against the petitioner. Again, the petitioner was given opportunity to submit his second explanation, to which the petitioner submitted his explanation. The disciplinary authority, having not satisfied with the second explanation offered by the petitioner, who being a Grade-I Police Constable, behaved in a disorderly manner with one Kottursamy in a drunken mood on 02.04.99 and also being involved in a criminal case in Kadayanallur Police Station Cr.No.329/99 under Section 4(1) (i) TNP Act and 75 MCP Act, found him not fit for continuing as Police Constable and therefore, he was imposed with the punishment of dismissal from service. The said punishment of dismissal from service imposed by the 1st respondent is under challenge in the present writ petition. 2. Mr.K.Venkataramani, learned Senior counsel appearing for the petitioner submitted that the petitioner was charged for having shown disorderly behaviour with one Kottursamy, at his hotel at Chockkampatti Village and in a drunken mood asked for fried fish and when the hotel owner, Kottursamy asked for money for the fish, even after the petitioner consumed the said fish, the petitioner being a Grade-I Police Constable, abused the hotel owner in a filthy language and went away without giving money. In his further submission, it was contended that the very complainant Kottursamy, after giving complaint, when he appeared before the enquiry officer, he turned hostile. Therefore, the punishment of dismissal from service imposed on the petitioner, may not have any basis. Further, in his submission it was argued that the Doctor, who was examined as P.W4, in his cross examination, admitted that only after finding smell of alcohol in the breath, the petitioner was issued with a drunken certificate. Therefore, without subjecting the petitioner to proper medical cross-examination, like, blood test or urine test, the certificate of drunkenness issued by the P.W4, should not have been accepted by the enquiry officer to hold him guilty. In his further submission, it was submitted that in any event, the charge made having not established due to the complainant turning hostile, the impugned punishment of dismissal from service should be set aside. 3. Mr.S.Gopinathan, learned Addl. Government Pleader appearing for the respondents submits that though the complainant one Kottursamy, in whose hotel, the petitioner misbehaved in a drunken mood and after eating food with fried fish, on money being demanded for the above said item, the delinquent abused him in filthy language. P.W1, is the hotel owner and P.Ws.2 to 4 were examined. One P.W.2, Narayanan, Inspector of Police, Kallidaikurichi, deposed that on 02.04.99 at about 15.00 hrs., P.W1 appeared before him and https://hcservices.ecourts.gov.in/hcservices/ gave a statement alleging that on 02.04.99 around 13.30 hrs., the delinquent came to his hotel in a drunken mood, ate fried fish and left after hurling abusive language without making any payment. On the basis of his statement, the witness registered a case in Kadayanallur Police Station in Cr.No.329/99 under Section 4(1)(j) TNP Act and 75 MCP Act and took up investigation. Subsequently, on the same day, at about 15.45 hrs., the petitioner was arrested at Therkkuvilai street and was also produced before the Kadayanallur Government Hospital and drunkenness certificate was obtained. Thereafter, the petitioner was sent to the Court of Judicial Magistrate at Shencottai for remand. After remand, P.W2 filed a special report before the Superintendent of Police, which was marked as Ex.P2. Again, P.W3-Sundararajan, Deputy Superintendent of Police, Tenkasi also was examined. In his deposition, the evidence given by the PW2 was fully supported. Further, Dr.R.Subramanian, who was examined as PW4 also supported the case of the respondents. On the basis of the evidence of P.Ws. 2 to 4 supported with other documents/exhibits, the disciplinary authority found him guilty and imposed the punishment of dismissal from service by holding that the petitioner being a Grade-I Police Constable, is unfit to continue as a police constable in the disciplined force. Therefore, the order of punishment imposed by the respondents, does not call for any interference by this Court and on that basis prayed for dismissal of the present writ petition. 4. Heard the learned counsel appearing on either side and perused the materials available on record. 5. Though learned Senior counsel appearing for the petitioner strenuously urged this Court to dismiss the impugned punishment on the ground that it is the case of no evidence, since the complainant one Kottursamy at Chockkampatti Village had himself turned hostile while being examined by the enquiry officer, the enquiry officer should not have further continued with the proceedings by examining P.Ws.2 to 4, as witnesses against the petitioner. This argument cannot be accepted even at the very threshold itself. When the petitioner has taken stand that his case is a case of no evidence, it is pertinent to keep in mind that after receiving the charge memo, though the delinquent/petitioner herein had acknowledged the charges on 15th Dec., 1999, he was required to reply on or before 30th Dec., 1999, but he has not submitted his explanation. However, in his further written statement of defence, he had contended that the Inspector of Police, Kadayanalllur had registered a false case against him. The next argument advanced by the learned senior counsel for the petitioner is that, the petitioner had consumed only indigeneous medicine for cough at that time, but P.W.4, the medical officer, who issued the drunkenness certificate had just made a noting that he found bad smell coming from the mouth of the petitioner, but had not subjected the delinquent for any blood or urine test. The said argument cannot be used against the department https://hcservices.ecourts.gov.in/hcservices/ so as to brush aside the said charge memo. When the petitioner was produced before P.W.4, Dr. R.Subramanian at the CAS Government Hospital, Kadayanallur on 2nd April, 1999 at about 4.15 p.m., P.W.2, the Inspector of Police was also present at the time of examination of the petitioner. On examining the petitioner, the doctor, P.W.4, found smell of alcohol in the breathing of the delinquent and he was also found unusually talkative. Therefore, the doctor, P.W.4, was of the opinion that the delinquent had consumed alcohol and was under its influence. On that basis he issued a certificate. When the drunkenness certificate, Ex.P-4 was issued holding that the petitioner had consumed alcohol, the onus is on the delinquent/petitioner, then and there to disprove the drunkenness certificate by voluntarily undergoing blood and urine test in the Government Hospital, Kadayanallur under the supervision of P.W.4. Since the delinquent/petitioner himself, after accepting the drunkenness certificate issued by the doctor in the Government Hospital, Kadayanallur, had avoided undergoing blood and urine test, he cannot be allowed to challenge the drunkenness certificate on the ground that the Department had not obtained drunkenness certificate after subjecting the petitioner to blood and urine test. Once the petitioner has accepted the drunkenness certificate when it was issued by the doctor, P.W.4, he cannot take a different stand in the enquiry that he had consumed only ayurvedic syrup for cough. 6. The other argument advanced by Mr.Venkataramani, learned senior counsel that the case of the petitioner is based on no evidence since P.W.1, the complainant had turned hostile before the enquiry officer also is untenable in view of the dictum of the Supreme Court in the case of State of U.P. - Vs – Ashok Kumar Srivastava (1992 (2) SCC 86), wherein it is held that if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence, the Court should record a conviction. In the case on hand also, except the evidence of P.W.1, the evidence of P.W.2, the Inspector of Police, who on the complaint made by P.W.1 immediately visited the place where the accused was found in a drunken mood and after securing the petitioner, who having been found in drunken mood, produced him before P.W.4, Dr.R.Subramanian in the Government Hospital, Kadayanallur, who issued the drunkenness certificate, doubly confirming the drunken state of the petitioner, who go to show that all the links in the chain are properly established before the enquiry. Even before producing the petitioner before the Judicial Magistrate, on the basis of the complaint given by P.W.1, a case in Kadayanallur Police Station Crime No.329/99 was registered u/s 4 (1) (j) of the Tamil Nadu Prohibition Act and Section 75 of the Madras City Police Act. On the basis of the registration of the complaint, after issuance of the drunkenness certificate, the petitioner was produced before the Judicial Magistrate, who remanded him to judicial custody. Thereafter, P.W.3, Mr.K.Sundararajan, Deputy Superintendent of Police, Tenkasi, conducted preliminary enquiry and https://hcservices.ecourts.gov.in/hcservices/ recorded the statement of the witnesses. The enquiry report and the first information report registered in Kadayanallur Police Station for various criminal offences, coupled with the drunkenness certificate issued by P.W.4 and the deliberate neglect and avoidance of the delinquent/petitioner to undergo blood and urine test to disprove the drunkenness certificate, vividly reveal the fact that the delinquent/petitioner, who was working as Police Constable, in a drunken mood, went to the hotel run by Kottursamy at Chockkampatti, ate fried fish and left the hotel after abusing the hotel owner without making any payment. Therefore, this Court, by taking judicial note of the petitioner's attitude and behaviour, that after issuance of drunkenness certificate by P.W.4, the petitioner being a responsible policeman, failure to undergo blood and urine test to disprove the drunkenness certificate goes against the petitioner and the stand of the petitioner during enquiry proceedings that he had consumed only ayurvedic medicine for cold and cough, is purely an afterthought and on that basis, the argument advanced that this is a case of no evidence has to be dismissed as baseless. Further, this is not a case where the petitioner can be allowed to have the doctrine of benefit of doubt. This is not a criminal case wherein the doctrine of benefit of doubt should be applied in letter and spirit. But, this is a domestic enquiry. In the domestic enquiry, if the department is able to establish the preponderance of probabilities, that is sufficient proof for imposing the punishment on the delinquent/petitioner considering the gravity of delinquency, which, in the present case, has been clearly established on the basis of the evidence, both oral and documentary adduced by P.W.s 2 to 4 and Ex.P-2. 7. Further, the argument of Mr.Venkataramani, learned senior counsel that P.W.1 turning hostile, he was treated as a hostile witness and while doing so, the enquiry officer cross examined the said witness, P.W.1, this amounts to turning the enquiry officer into prosecutor also cannot be accepted as a ground for setting aside the punishment. 8. The Hon'ble Supreme Court in the case of State of Uttranchal & Ors. - Vs – Kharak Singh (2008 (8) SCC 236) ruled that if an enquiry officer acted as investigator, prosecutor and Judge, such a procedure was held to be against the principles of natural justice. In this context, para-17 and 18 of the abovesaid judgment, which are relevant, are extracted hereunder for easy reference:- “17. On the other hand, one Mr.P.C.Lohani, Dy. Divisional Forest Officer, Nandhaur acting as an enquiry officer after putting certain questions and securing answers submitted a report on 16.11.1985. No witnesses were examined. Apparently there was not even a presenting officer. A perusal of the report shows that the https://hcservices.ecourts.gov.in/hcservices/ enquiry officer himself inspected the areas in the forest and after taking note of certain alleged deficiencies secured some answers from the delinquent by putting some questions. It is clear that the enquiry officer himself has acted as the investigator, prosecutor and judge. Such a procedure is opposed to principles of natural justice and has been frowned upon by this Court. 18. Another infirmity in the report of the enquiry officer is that he concluded the enquiry holding that all the charges have been proved and he recommended for dismissal of the delinquent from service. The last paragraph of his report dated 16.11.1985 reads as under : “During the course of above inquiry, such facts have come into light from which it is proved that the employee who has doubtful character and does not obey the order, does not have the right to continue in the government service and it is recommended to dismiss him from the service with immediate effect.” (Emphasis supplied) Though there is no specific bar in offering views by the enquiry officer, in the case on hand, the enquiry officer exceeded his limit by saying that the officer has no right to continue in the government service and he has to be dismissed from service with immediate effect.” A mere reading of the above paragraphs goes to show that the enquiry officer, in the above said case, has put certain questions and secured answers from the delinquent employee. Further, the enquiry officer inspected the areas in the forest and after taking note of certain alleged delinquencies, secured some answers from the delinquent by putting some questions. Further, the enquiry officer also exceeded his limit by recommending to the disciplinary authority that the delinquent officer has no right to continue in Government service and he has to be dismissed from service with immediate effect. In that view of the matter, the Hon'ble Apex Court held that the enquiry officer should not act as investigator, prosecutor and Judge. 9. In the present case, the petitioner has brought to the notice of the court the minutes recorded by the enquiry officer, as extracted hereunder :- “P.W.1, Tr.C.Kottursamy s/o Chellasamy Thevar, Chockampatty deposed that he was running a hotel https://hcservices.ecourts.gov.in/hcservices/ on the eastern side of the Out Post at Chockkampatty. On 2.4.99 at about 1.3. p.m., a man came to his hotel in a drunken stage, ate a fish and left after hurling abusive language. He also made no payment. The witness informed this matter at Chockkampatty O.P. where he was directed to inform Kadayanallur P.S. Accordingly he went to Kadayanallur and informed the Inspector of the occurrence in which the Inspector registered a case. The witness filed the F.I.R. as Ex.P.1. As the witness resiled from his earlier version, he was treated as a hostile witness and cross examined by the Enquiry Officer. During cross examination, the witness admitted that he did prefer a complaint at Kadayanallur P.S. on 2.4.99 at 3 p.m. and on the basis of which only the case was registered. He also admitted his signature found in the FIR.” The enquiry officer, having seen that the complainant turned hostile, by treating the complainant, P.W.1 as hostile witness, enquired whether the complainant, P.W.1 has really turned hostile or not. Except this, the learned senior counsel appearing for the petitioner has not shown to this Court that the enquiry officer has cross-examined all the witnesses and caused any prejudice to the delinquent/petitioner. 10. Further, it is not the case of the petitioner that the enquiry officer cross-examined each and every witness and was therefore, biased, but the same enquiry officer acted as a prosecutor as well as a Judge, is far from acceptance. It is the admitted case that P.W.1, the complainant has turned hostile and, while treating him as hostile, his evidence was not even relied on by the enquiry officer. On his turning hostile, the enquiry officer is said to have cross-examined the hostile witness. However, as the enquiry officer has not taken into account the evidence of P.W.1, the petitioner has not been prejudiced since it is not even shown before the court that the enquiry officer had cross-examined every witness. Therefore, this Court cannot come to the conclusion that the enquiry officer has acted as a prosecutor as well as a Judge. In this view of the matter, the enquiry officer having not exceeded his authority except conducting the enquiry proceedings as contemplated, this Court does not find any infirmity in the enquiry proceedings conducted by the enquiry officer. Thus the judgment of the Supreme Court in 2010 (7) SCC 772 and 2008 (8) SCC 236 as well as the unreported judgment of this Court in W.P. No.44164/06 dated 24th July, 2008 saying that the enquiry officer cannot act as investigator, prosecutor and also as a Judge, is not applicable to the case on hand. https://hcservices.ecourts.gov.in/hcservices/ 11. Mr.Venkataramani, learned Senior counsel appearing for the petitioner, misplaced his argument to press into service the rule of evidence to be followed in the departmental proceedings in the same width and breadth as it is followed in a criminal case, forgetting the settled principles that in the departmental proceedings preponderance of probability is sufficient for imposing punishment on a delinquent official considering the gravity of delinquency being established in a departmental enquiry. 12. Further, I am not also able to appreciate as to why PW2- Inspector of police, PW3-Deputy Superintendent of Police and Superintendent of Police should go against their own policeman by booking him in Cr.No.329/99 under Section 4(1) (j) Tamil Nadu Prohibition Act and 75 MCP Act and again go to the extent of remanding him to the judicial custody by producing him before the Judicial Magistrate, Shencottai. If the petitioner, who also belongs to police department, had not committed the above said offence, the respondents being responsible police officers and being part of the disciplined force, would not have gone against their own colleague, who was also a member of the disciplined force. 13. In this view of the matter, this Court, while accepting the preponderance of probability, is not inclined to interfere with the quantum of punishment imposed by the respondents. Accordingly, the present writ petition is dismissed. No Costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gln/rkm To 1.The Superintendent of Police, Tirunelveli Dist. 2.The Deputy Inspector General of Police, Tirunelveli Range, Tirunelveli. 1 cc To The Government Pleader, SR.59069 W.P. NO. 48074 OF 2006 akr(co) pmk.17.8.2010 https://hcservices.ecourts.gov.in/hcservices/