IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.01.2010 CORAM: THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.8711 of 2006 Mr.S.Ravishankar ..Petitioner/Applicant versus Superintendent of Police, District Police Office, Kancheepuram District, Kancheepuram. ..Respondent PRAYER: This writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.5421 of 2000 from the file of the Tamil Nadu Administrative Tribunal to quash the punishment of compulsory retirement from service passed by the respondent herein in his P.R.No.39/99, J2/15514/2000 dated 23.05.2000 and direct the respondent to reinstate the petitioner in service with all consequential monetary and service benefits. For Petitioner : Mr.Ravi Shanmugam For Respondent : Mr.B.Vijay Government Advocate O R D E R The Original Application in O.A.No.5421 of 2000 before the Tamil Nadu Administrative Tribunal is the present writ petition. 2.The petitioner joined the service as Grade-II Police Constable on 24.10.1984. While he was serving in Chengalpet Railway Police Station in Kancheepuram District, he was deputed to the Office of the Inspector General of Police, Railways, Chennai for doing the duty of Driver with effect from 27.05.1998. On 21.03.1999 at 11.30 p.m. Thiru.Mathivanan, Sub-Inspector, Railway Police, apprehended him at the Portico of Central Railway Station. He was taken to the Police Station at the Central Railway Station and a case was registered in Crime No.456 of 99 under Section 4(i)(j) of TNP Act and 75 MCP Act. He was sent to Medical examination at the Government General Hospital. The Doctor examined him at 00.50 am on 22.03.1999. The petitioner informed the Doctor that he consumed liquor at 2.30pm on https://hcservices.ecourts.gov.in/hcservices/ 21.03.1999. The doctor also found that the petitioner consumed liquor, but he was not under its influence. Ultimately, the Criminal case was dropped. However a charge memo dated 11.08.1999 under Rule 3 (b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules was issued. The crux of the allegation was that he was found in drunkenmood at 11.30 pm on 21.03.1999 at Central Railway Station. Secondly, he caused nuisance to the public by using obscene language. 3.An enquiry was conducted. In the enquiry, the Sub Inspector of Police Mr.Mathivanan was examined as first witness. The Inspector Mr.Pandian was examined as second witness. The Doctor, who gave the Medical Certificate, was examined as third witness. The petitioner gave a defence statement in the enquiry. Ultimately, the Enquiry Officer submitted his report dated 25.03.2000. In his report, the Enquiry Officer found that the charges were proved. Based on the findings, the respondent passed the impugned order dated 23.05.2000 imposing the punishment of compulsory retirement. 4.The petitioner filed Original Application in O.A.No.5421 of 2000 (W.P.No.8711 of 2006) to quash the impugned order dated 23.05.2000 and for a direction to the respondent to reinstate him in service with all consequential monetary and service benefits. 5.Heard Mr.Ravi Shanmugam, learned counsel for the petitioner and Mr.B.Vijay, learned Government Advocate for the respondent. The respondent filed reply affidavit refuting the allegations. 6.The learned counsel for the petitioner submits that the petitioner admitted that he consumed liquor at 2.30 pm on 21.03.1999 before the Doctor. The Doctor deposed in the enquiry taking into account the statement made by the petitioner that the petitioner consumed liquor, but he was not under its influence. Hence, the charge that he was in drunken condition has no basis. The evidence of Doctor was only to the effect that he was not under the influence of alcohol. 7.The learned counsel for the petitioner submits that there is no evidence at all relating to the alleged nuisance caused to the public by the petitioner and the alleged obscene language used by the petitioner. It is argued that no public gave any complaint and it is not stated by Mr.Mathivanan, what was the obscene language used by the petitioner. The learned counsel for petitioner also relied on a judgment of this Court in K.M.Ramasamy Vs. Assistant Commissioner of Labour (Controlling Authority under the payment of gratuity Act) Coimbatore reported in 1991 (II) LLN 965. In these circumstances the learned counsel for the petitioner also submits that the findings of the Enquiry Officer has to be characterized as perverse. It is submitted that the impugned punishment order is therefore vitiated. https://hcservices.ecourts.gov.in/hcservices/ 8.On the other hand, the learned Government Advocate submits that the petitioner was given opportunity in the enquiry and the witnesses were examined. Based on the evidence let-in the enquiry, the enquiry officer recorded his findings. It is submitted that the Police Force, being disciplined force, the misbehaviour of the petitioner should be strictly viewed. Hence, he seeks to sustain the punishment order. 9. I have considered the submissions made on either side. 10. As rightly pointed out by the learned counsel for the petitioner, the Doctor who examined the petitioner at 00.50 hours on 22.03.1999, deposed in the enquiry that the petitioner consumed liquor, but he was not under its influence. The following passage found in the report of Enquiry Officer is extracted here-under:- "mtiu tprhhpj;jjpy; 21/03/1999 md;W khiy Rkhh; 2/30 kzpf;F kJ mUe;jpajhft[k;. jhd; kUj;Jt ghpnrhjidapy; bra;jjpy; mtUila xUtpHpfs; rpwpJ bghpjhf ,Ue;jjhft[k; btspr;rj;jpw;F bkJthf RU';fp tphpe;jjhft[k;. mth; Foj;jpUg;gJ bjhpate;jjhft[k;. Mdhy; mjd; jhf;fj;jp[y; ,y;iy vd;W rhd;wpjH; mspj;jjhft[k; rhd;wpjH; vz;/415778 ehs; 22/03/1999 (thjj;jug;g[ rhd;whtzk; 3) vd;W tH';fpajhft[k; mjid thu jug;g[ rhl;rp Mtzk; 3 Mf jhf;fy; bra;jjhft[k;. thf;FK:yk; mspj;Js;shh;/" 11. The Doctor also deposed in the enquiry that he examined the petitioner at 00.50 hours on 22.03.1999 i.e, he was immediately produced before the Doctor for medical examination. Even when he was produced immediately for examination, as rightly pointed out by the learned counsel for the petitioner, the Doctor found that the petitioner was not under the influence of alcohol. Hence, I find some force in the submission made by the learned counsel for the petitioner relating to charge No.1. 12. The learned counsel for the petitioner is also well founded in his submission that the Enquiry Officer recorded a perverse finding in holding that even without any complaint from public, the charge relating to causing nuisance to public could be held as proved. The following passage found in the finding is extracted here-under:- "bghJkf;fs; Kd;dpiyapy; mUtUg;ghf ele;J bfhz;lhy; nkw;go bghJkf;fspy; g[fhhpd; nghpy; jhd; eltof;if vLf;f ntz;Lk; vd;w rl;lk; ,y;iy/ Fw;w';fs; elthky; jLf;ft[k;. Fw;wk; ele;jpUg;gpd; tHf;F gjpt[ bra;tJ jhd; fhty;Jiwapd; md;whl mog;gil ntiy/ Mfnt g[fhhpd; nghpy; jhd; eltof;if vLf;f ntz;Lk; vd;W TwpapUg;gJk; Vw;fj;jf;fjy;y/" https://hcservices.ecourts.gov.in/hcservices/ The learned counsel for the petitioner is correct in his submission that Mr.Mathivanan, Sub-Inspector of Railway Police was cross- examined as to whether any public made a complaint and that the witness deposed that there was no complaint from the public. The significant admission was not taken note of by the Enquiry Officer. Even Mr.Mathivanan did not say as to what was the alleged obscene language used by the petitioner. Without knowing the actual words uttered by the petitioner, one could not come to any conclusion as to whether the language was abusive or not. In this connection, the judgment of this Court in K.M.Ramasamy Vs. Assistant Commissioner of Labour (Controlling Authority under the payment of gratuity Act) Coimbatore, reported in 1991 (II) LLN 965 relied on by the learned counsel for the petitioner squarely applies to the facts of this case. The relevant passage is extracted here-under:- "3. Learned counsel for the petitioner submits that the impugned order is silent with regard to the alleged abusive words used by the petitioner and that no opportunity was given to the petitioner to explain and that the impugned order is, therefore, against the principles of natural justice, arbitrary and it is illegal. Learned Government Advocate, appearing for the respondent is unable to point out the actual words alleged to have been used by the petitioner in the course of the proceedings. Under such circumstances, the impugned order is quashed as it is against the principles of natural justice........." 13. Hence, I am of the view that absolutely there is no evidence to come to the conclusion that the petitioner caused nuisance to the public and also used abusive language against the petitioner. 14. The learned counsel for the petitioner also submits that when the criminal action was dropped as admitted in para 12 of the reply affidavit, the extreme punishment of compulsory retirement, in the circumstances of the case, was not warranted. Para 12 of the reply affidavit is extracted here-under:- The contention of the petitioner in para.6(4) is not correct. In the Criminal case No.456/99 u/s 4(i)(j) TNP Act and 75 MCP Act registered against the petitioner, action was dropped and the departmental action u/s 3(b) of TNPSS, D & A Rule was initiated in PR.No.39/99 in accordance with rules. 15. As rightly contended by the learned counsel for the petitioner, though the petitioner consumed liquor, it was not during duty hours. Taking into account the entirety of the circumstances, I am of the view that the punishment of compulsory retirement is totally not warranted. Though this Court could not normally interfere https://hcservices.ecourts.gov.in/hcservices/ in the matter of punishment, since a finding was recorded that there was no evidence for causing nuisance to the public and for using abusive language and also taking into account the fact that the criminal case was dropped, besides the matter is pending for about ten years, I am inclined to deprive the wages for the period of non- employment and also to impose the punishment of stoppage of increment without cumulative effect for two years while reinstating the petitioner in service, without remitting the matter to the respondent to consider the quantum of punishment. 16. In the result, the impugned order is quashed and the respondent is directed to reinstate the petitioner without back wages and to treat the period of non-employment for notional fixation of pay alone. The respondent is directed to complete the exercise within a period of twelve weeks from the date of receipt of a copy of this order. Besides deprived back-wages, I am of the view that the petitioner should be imposed with the punishment of stoppage of increment for two years without cumulative effect as the petitioner belongs to disciplined force. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rns To The Superintendent of Police, District Police Office, Kancheepuram District, Kancheepuram. + 1 c.c. to Mr. S. Ravi, Advocate. S.R.No.5355. + 1 c.c. to The Government Pleader. S.R.No.5683. W.P.No.8711 of 2006 GS (CO) GSK 18.02.2010. https://hcservices.ecourts.gov.in/hcservices/