IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 22-03-2011 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.558 of 2009 M.P.No.2 of 2009 S. Sankarapandian ... Petitioner Vs. 1. The Secretary to the Government, Home Department, Chennai – 9. 2. The Director General of Police, Mylapore, Chennai. 3. The Deputy Inspector General of Police, Tirunelveli Range, Tirunelveli. 4. The Superintendent of Police, Tirunelveli District, Tirunelveli. ... Respondents Prayer: Petition filed under Article 226 of Constitution of India, seeking a Writ of Certiorarified mandamus calling for the records pertaining to the proceedings of the first respondent in G.O.(2D)No.34, dated 28.1.2009, proceedings of the second respondent passed in Rc.No.27419/AP2(1)/2008, dated 15.5.2008, proceedings of the third respondent passed in C.No.C4/AP.92/2007, dated 3.1.2008 and memo issued by the 4th respondent in C.No.P1/PR.75/1997 dated 15.10.2007 and quash the same and direct the respondents to reinstate the petitioner in service with all consequential benefits. For Petitioner : Mr.M.S.Soundararajan For Respondents: Mr.B.Vijay, Government Advocate https://hcservices.ecourts.gov.in/hcservices/ O R D E R The prayer in the writ petition is to quash the order of the first respondent dated 28.1.2009 confirming the order of the second respondent dated 15.5.2008, which in turn confirms the order of compulsory retirement of the petitioner passed by the third respondent dated 3.1.2008 and the memo of the 4th respondent dated 15.10.2007 and direct the respondents to reinstate the petitioner in service with all consequential benefits. 2. The brief facts necessary for disposal of this writ petition are as follows: (a) The petitioner, while working as Police Constable Grade-II, was issued with charge memo under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, in P.R.No.75 of 1997 alleging, "highly reprehensible conduct in having misbehaved with one Muthulakshmi, w/o.Paramasivam, on 15.4.1997 at 2 a.m. at Suthamalli". (b) An enquiry was conducted by the Deputy Superintendent of Police, District Crime Branch (in charge), and in the enquiry it was held that the first portion of the charge was proved and that the second portion of the charge was not proved. The said finding of the Enquiry Officer dated 6.1.1998 with regard to the portion of charge which was found not proved, was differed by the Disciplinary Authority, who imposed the punishment of compulsory retirement on 16.3.1998. (c) The petitioner challenged the said order before the Tamil Nadu State Administrative Tribunal in O.A.No.2987 of 1998 and interim stay was obtained. Thereafter the said original application was transferred and numbered as W.P.No.38570 of 2005 and the said writ petition was disposed of on 13.9.2006 by setting aside the punishment on technical ground and remitted the matter to the department to pass fresh orders by following the procedures laid down in the relevant rules and after providing opportunity to the petitioner by order dated 13.9.2006. (d) On 15.10.2007 a memo was issued to the petitioner by the Superintendent of Police, Tirunelveli, stating as to why the disciplinary authority disagreed with the findings of the Enquiry Officer and requested the petitioner to file a reply. The petitioner submitted his reply and after considering the same the petitioner was again imposed with the punishment of compulsory retirement by order dated 30.10.2007. (e) The petitioner filed appeal before the third respondent on 21.11.2007 which was rejected on 3.1.2008. The review petition filed before the second respondent on 29.1.2008 was also rejected on 15.5.2008. The mercy petition filed before the Government on https://hcservices.ecourts.gov.in/hcservices/ 5.8.2008 was not disposed of by confirming the order of compulsory retirement. Hence the petitioner has filed this writ petition with the above said prayer. (f) The contentions raised in the writ petition are that the evidence of the defence witnesses were not considered by the Enquiry Officer as well as by the disciplinary authority. The Enquiry Officer has not discussed the evidence let in, particularly the evidence given by DW-1 and DW-2, which has vitiated the findings. The appellate authority has not gone into the said aspect and merely confirmed the order of punishment. The evidence of PW-1 who was the de-facto complainant was given much importance without any corroborative evidence and the punishment imposed is excessive. 3. The respondents have filed a counter affidavit stating that based on the interim order granted by the Tamil Nadu Administrative Tribunal in the earlier round of litigation, petitioner was restored to duty on 6.7.1998 pending disposal of the original application and after the remand order passed by this Court, the 4th respondent re-examined the matter carefully and found that the petitioner misbehaved indecently with one Muthulakshmi with bad intention and the Enquiry Officer, though found part of the charge proved, erroneously gave finding that the second part of the charge was not proved. Therefore the said finding was disagreed insofar as the second portion of the charge i.e., behaving with bad intention and PW-1 in her evidence has clearly stated how the petitioner behaved with bad intention. The petitioner was given opportunity to submit explanation for the descending note along with copy of the note on 16.10.2007 and his explanation was also duly considered and he was imposed with the punishment of compulsory retirement, which is a lenient punishment considering the gravity of the misconduct proved. The appeal, the review petition and the mercy petition were dismissed and there is no illegality in the said orders. The allegation of not discussing the deposition of the defence witness is also denied. 4. Heard the learned counsel for the petitioner as well as the learned Government Advocate for the respondents. 5. The charge levelled against the petitioner who was a Police Constable reads as follows: "Highly reprehensible conduct in having misbehaved with one Muthulakshmi, w/o.Paramasivam on 15.4.97 at 2 A.M. in Tirunelveli Town." The facts leading to the said charge reads as follows: "You are working as a Gr.II PC attached https://hcservices.ecourts.gov.in/hcservices/ with Suthamalli PS from 27.6.96. You are neighbour of one Paramasivam, S/o.Sappani, who is residing at B4, Thandiyalchavadi street, Tirunelveli Town along with his wife Muthulakshmi. On 15.4.97, at 1 a.m., while Muthulakshmi went to answer her call of nature, you called her with bad intention. Muthulakshmi warned you and went inside her house and bolted the door. Again you knocked at her door and called her with bad intention. During this incident the husband of the lady, who happens to be a driver, was away from house. On earlier two occasions also you had misbehaved with the same lady with bad intention. Thus, your behavious has been highly reprehensible and unbecoming of a policeman. Hence it is proposed to deal with you u/r 3(b) of TNPSS (D&A) Rules for the above said delinquency." 6. The misbehaviour of the petitioner with the said Muthulakshmi happened on 15.4.1997 at 2.00 a.m. The said Muthulakshmi was examined as PW-1 before the Enquiry Officer. The statement given by the said Muthulakshmi clearly states that she was residing in her residence for the past 3½ years, her husband is a Driver, and while they were residing at Suthamalli Colony, the petitioner misbehaved in the following manner, (translated version from the statement of PW-1, the complainant Muthulakshmi), "........ About six months back, when I had been residing in Suthamalli, one night at about 2.00 a.m., I returned after answering natures call. At that time, came in a van, stood in the way and shouted unparliamentary words at me, I began to panic. I went home and shut the door. The constable tapped at the door. I told him that problem will arise. My husband came at 3.00 a.m. I told him about what had happened. Later, talks were held in the presence of the village Panchayat President with regard to this. The constable sought apology. The next day the constable brought the vehicle. The constable and his wife went out and came. At that time, my child had urinated in the Verandah. The constable's wife shouted. The constable called my husband, who was having his food inside the house, to come outside the house https://hcservices.ecourts.gov.in/hcservices/ and pulled his shirt and punched him on the eye with his hand. In order to prevent this issue from continuing, we vacated the house and came to the town. Prior to this he has spoken twice about me. But I did not reveal it outside. The Area Inspector enquired. ......" On perusal of the said statement given by PW-1 it is evident that the petitioner with evil motive misbehaved with PW-1 at 2 a.m on 15.4.1997 and he was also warned by her. Her husband came to her house at 3 a.m. and he was informed about the incident and thereafter peace talks were held in the presence of the Panchayat President and the petitioner pleaded for pardon. The husband of PW-1 was examined as PW-2 in this regard. 7. The victim is a family woman and she has no evil motive to give statement against the petitioner, who is serving in the Police department. The police force being a disciplined force, is vested with the duties of protecting the lifes and properties of the general pubic and to enforce law and order and the petitioner being a member of the said disciplined force, cannot flout and violate the rules and regulations by misbehaving with women with bad intention. Taking note of the seriousness of the allegation which was found proved, particularly by the Enquiry Officer partly, and by the Disciplinary Authority fully, after following the due process in respect of second part of the charge, they have exercised their discretion to impose the punishment of compulsory retirement, which was confirmed by the appellate authority, the reviewing authority and by the Government. 8. In the above circumstances, the punishment of compulsory retirement cannot at all be treated as disproportionate punishment having regard to the gravity of the charge proved against the petitioner. The petitioner also earlier misbehaved with the very same lady as per the counter affidavit. No reply affidavit is filed to controvert the said averments made in the counter affidavit. 9. (a) The power of the Court in disciplinary matter is clearly explained by the Supreme Court in the decision reported in (2009) 8 SCC 310 (State of U.P. v. Man Mohan Nath Sinha). In para 15 it is held thus, "15. The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making process. The court does not sit in judgment on merits of the https://hcservices.ecourts.gov.in/hcservices/ decision. It is not open to the High Court to reappreciate and reappraise the evidence led before the inquiry officer and examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusions. In the instant case, the High Court fell into grave error in scanning the evidence as if it was a court of appeal. The approach of the High Court in consideration of the matter suffers from manifest error and, in our thoughtful consideration, the matter requires fresh consideration by the High Court in accordance with law. On this short ground, we send the matter back to the High Court." (b) Maintaining strict discipline in Police force is emphasised by the Supreme Court in the decision reported in 2009 (8) Supreme 27 (State of U.P. v. Ram Daras Yadav). In para 10 it is held thus, "10. We are quite conscious of the fact that we are dealing with a disciplined police organization. Discipline is the backbone of the police force. Highest degree of discipline is imperative for the smooth functioning of a police force. ........" (c) In the decision reported in 1999 SCC (L&S) 789 (Commandant, Tamil Nadu Special Police, 9th Battalion v. D.Paul) the Supreme Court considered the gravity of offence of misbehaving with a woman by Sub-Inspector of Police attached to the Tamil Nadu Special Police and upheld the punishment of compulsory retirement and set aside the order of the Tamil Nadu Administrative Tribunal dated 24.3.1992 made in O.A.No.869 of 1989. (d) A Division Bench of this Court (M.Y.Eqbal, C.J. & T.S.Sivagnanam, J.) in the decision reported in 2011 (2) CTC 129 (Dr.R.Padmavathy v. The secretary to Government, State of Tamil Nadu) while dealing with the scope of judicial review held that normally Courts should not interfere with administrative decisions unless it is illogical and suffers from procedural impropriety or is shocking the conscious of the Courts, and that, when the administrative action is challenged as abitrary, the question will be whether the administrative order is rationale or reasonable and the test would be Wednesbury's test. 10. Applying the principles laid down in the above cited decisions to the facts of this case, and considering the nature of the allegation made against the petitioner, deposition of the victim PW-1 and the findings given by the Disciplinary Authority https://hcservices.ecourts.gov.in/hcservices/ as well as the punishment imposed, I am of the view that the punishment imposed is just and proper and no case is made out to interfere with the order of punishment of compulsory retirement. There is no merit in the writ petition. The writ petition is dismissed. No costs. Connected miscellaneous petition is also dismissed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vr To 1. The Secretary to the Government, Home Department, Chennai – 9. 2. The Director General of Police, Mylapore, Chennai. 3. The Deputy Inspector General of Police, Tirunelveli Range, Tirunelveli. 4. The Superintendent of Police, Tirunelveli District, Tirunelveli. 1 cc to mr/M.s. Soundararajan, Advocate, sr. 20412 W.P.No.558 of 2009 GR (CO) kk 6/4 https://hcservices.ecourts.gov.in/hcservices/