IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 05.02.2010 CORAM THE HONOURABLE MR. JUSTICE R. SUDHAKAR W.P.No.44187 of 2006 V.Sundaraj .. Petitioner vs The Superintendent of Police, District Police Office, Tirunelveli District. .. Respondent PRAYER: Original Application No.5501 of 2000 was filed before the Tamil Nadu Administrative Tribunal, Madras Bench to quash the punishment of dismissal from service passed by the respondent herein in his P.R.No.33/2000 dated 10.7.2000 and direct the respondent herein to reinstate the Petitioner in service with all consequential monetary and service benefits. Since the Tamil Nadu Administrative Tribunal was abolished, the O.A was received by transfer and numbered as Writ Petition. For Petitioner ... Mr.S.Ravi For Respondent ... Mr.B.Vijay, Govt. Advocate O R D E R Original Application No.5501 of 2000 was filed before the Tamil Nadu Administrative Tribunal, Madras Bench to quash the punishment of dismissal from service passed by the respondent herein in his P.R.No.33/2000 dated 10.7.2000 and direct the respondent herein to reinstate the applicant in service with all consequential monetary and service benefits. Since the Tamil Nadu Administrative Tribunal was abolished, O.A was received by transfer and numbered as Writ Petition. 2.The petitioner Grade II Police Constable was appointed on 16.06.1993 and he was served with a Charge Memo in PR.No.104/99 under Rule 3(b) dated 4.6.1999 by the Superintendent of Police for the following reasons: "The allegation in the Charge being that on https://hcservices.ecourts.gov.in/hcservices/ 26.5.1999 dated 21.30 hours, the applicant in drunken mood had mis-behaved in public and assaulted one Ramakrishnan and thereby involved himself in Cr.No.110/99. In the statement of allegation, it had been mentioned that a criminal complaint in Cr.No.110/99 u/s 341, 294 (b) and 323 IPC was registered against the applicant." 3.An explanation was submitted by the petitioner. The Enquiry was conducted by the competent Authority and a report was submitted holding that the charges made against the petitioner were proved. On 2.11.1999, the Superintendent of Police passed a final order in P.R.No.104/99 imposing a major punishment of dismissal from service. Without filing an appeal, the Original Application has been filed by the petitioner and interim order of stay of dismissal has been granted. Hence, the petitioner is continuing in the said post. In the departmental enquiry proceedings, oral and documentary evidence were let in and a report was submitted by the enquiry officer. The Enquiry Officer came to conclusion that the petitioner is guilty of the delinquency charged based on oral and documentary evidence. 4.There is a provision for filing a statutory appeal which has not been done. Therefore, the petitioner is directed to file an appeal before the Appellate Authority who will go into the factual aspects of the case on merits. 5.This Court is not inclined to adjudicate on the factual aspects of the petitioner case on merits since an appeal is provided under Rule 6 of the Tamil Nadu Police Subordinate Services (Disciplinary and Appeal) Rules, 1955, which is as follows: (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 (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; https://hcservices.ecourts.gov.in/hcservices/ 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 (b) 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 clauses (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. (G.O.Ms.No.2348 Home (Police-III) dated 26.8.1977; w.e.f 24.1.1977) (2) Any error or defect in the procedure followed in imposing a penalty may be disregarded by the appellate authority if such authority considers, for reasons to be recorded in writing, that the error or defect was not material and has neither caused injustice to the person concerned nor affected the decision of the case." 6.The counsel for the petitioner pointed out that the authority who imposed the punishment originally is now the appellate authority. Therefore the petitioner may be permitted to file the appeal and pursue the same before any other competent authority fit enough to hear the appeal. Such appeal will be filed within a period of thirty days from the date of receipt of https://hcservices.ecourts.gov.in/hcservices/ a copy of this order and the Appellate Authority shall dispose off the appeal on merits in accordance with law within a period of three months thereafter. The writ petition is disposed off accordingly. No costs. 7.Till such appeal is disposed off on merits, the order * punishment of removal from the service imposed by the Disciplinary Authority shall not be implemented. Sd/- Asst.Registrar. 10.3.10 * Corrected as per Court order dated.22.3.2010 Sd/- Asst.Registrar 23.3.10 /true copy/ Sub Asst.Registrar. cla To Corrected order to be substituted The Superintendent of Police, to the order already despatched District Police Office, on 19.3.10 Tirunelveli District. 1 cc to Mr.S. Ravi, Advocate, Sr. 18596 W.P.No.44187 of 2006 MRD (CO) kk 11/3 MRD(CO) EM/23.3.10 https://hcservices.ecourts.gov.in/hcservices/