IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.06.2008 CORAM THE HONOURABLE MR. JUSTICE S.MANIKUMAR W.P.No.15410 of 2006 (T) (O.A.No.2780 of 1994) G.Ramakrishnan HC 262 . . Petitioner Vs 1.The Superintendent of Police, Kamarajar District, Virudhunagar. 2.The Deputy Inspector General of Police, Ramanathapuram. 3.The Director General of Police, Madras-600 004. .. Respondents The petition is filed to quash the punishment order of removal from service passed by the first respondent in PR No.33/91 dated 13.04.1993 and the subsequent order passed by the second respondent in proceedings C.No.A4/7199/AP61/93 dated 14.07.1993 and to reinstate the applicant in service with backwage and to reinstate the petitioner in service with all attendant and consequential benefits For Petitioner : Mr.S.J.Jagadev For Respondents : Mrs.Lita Srinivasan Government Advocate O R D E R Aggrieved by the order of removal from service, dated 13.04.1993, passed by the Superintendent of Police, of erstwhile, Kamarajar District and that of the appellate authority, namely, Deputy Inspector General of Police, dated 14.07.1993, the petitioner has preferred this writ petition. 2. The facts leading to the writ petition are as follows; https://hcservices.ecourts.gov.in/hcservices/ The petitioner was Head Constable attached to Keelkudi Out Post, Virudhunagar. In the year 1991, he was issued with a charge memo under Rule 3(b) of T.N.P.S.S. (D & A) Rules 1955 alleging that he was found lying in drunken mood in front of the house of one Sakkarai Thevar, a prohibition offender, on 21.09.1991, besides having allowed movement of I.D. arrack in the Keelkudi Out Post limit conniving with prohibition offenders. It was further alleged that he had indulged in reprehensible conduct in tampering and fabricating false record in the General Diary of Keelkudi Out Post dated 21.09.1991. An oral enquiry was conducted by the Deputy Superintendent of Police, Virudhunagar and the enquiry officer after examination of the evidence, records and the defence statement held that the charges were not proved. However, the Superintendent of Police, Kamarajar District disagreed with the findings of the enquiry officer and gave a dissenting minute stating that the departmental witnesses namely PWs1, 3 to 5 have deposed that the delinquent was lying in front of the house of Sakkarai Thevar and issued a show cause notice. The petitioner submitted a detailed reply to the dissenting note of the disciplinary authority and stated that in the absence of any evidence, the charges were not substantiated and rightly has not proved by the enquiry officer and therefore the same to be sustained. The disciplinary authority without considering the same in a proper perspective, held that the charges are proved on the following grounds; i) PWs1, 3, 4 and 5 have deposed in oral enquiry that the delinquent was lying in front of the house of Sakkarai Thevar; ii) If the delinquent had not been in drunken mood he would not have been lying in front of the house of Sakkarai Thevar; iii) the deposition of DWs1, 2 and 3 cannot be relied upon as it was meant to save the petitioner; iv) Exhibits P1, 3, 4, 5, 6, 7 and 9 which are earlier statements made by the departmental witnesses proved that the delinquent was lying in front of the house of Sakkarai Thevar; v)Ex.P8 special report of PW8 proves that the delinquent had tampered the General Diary of Keelakudi Out Post dated 21.09.1991; and vi) that in preliminary enquiry the witnesses have stated clearly the facts leading to the charges all though they have contradicted later in the oral enquiry. since the version given in preliminary enquiry was sworn statment it has to be relied on. https://hcservices.ecourts.gov.in/hcservices/ 3. On the basis of the above said reasoning, the disciplinary authority namely, the Superintendent of Police, Kamarajar District imposed a penalty of removal of service by his order dated 13.04.1993. 4. It is the grievance of the petitioner that the first respondent has ignored the fundamental principles to be followed in the disciplinary enquiry and that the findings of the disciplinary authority are purely based on surmises and conjectures. 5. The petitioner has further submitted that he preferred an appeal to the Deputy Inspector General of Police, to the second respondent, pointing out the various irregularities and submitted that the finding of the disciplinary authority is not supported by any legal evidence. The second respondent by an order dated 14.07.1993 has simply rejected the appeal by a non speaking order. The petitioner has further submitted that when the charges were pending, he was vindictively transferred and posted to serve under the same Deputy Superintendent of Police, Arrupukkottai, on whose report, he was placed under suspension and disciplinary proceedings. Therefore, the petitioner was apprehensive in joining Arrupukkottai fearing victimisation and requested the Superintendent of Police, to post him to some other division. His request was rejected. Thereafter, the Superintendent of Police marked him as absent from 09.05.1992 and he was treated as deserter by an order dated 03.07.1992. Though the petitioner appeared in person before the appointing authority, on 03.07.1992, before the expiry of two months period with a medical certificate and requested to take him back to duty, the first respondent refused to entertain the medical certificate and on the contrary, initiated a fresh disciplinary proceedings in PR.34/92. An oral enquiry was conducted in respect of charges of absence without leave or permission and no order was passed in the said proceedings and in the meanwhile, the first respondent has awarded a penalty of removal from service, in respect of the earlier charge of lying in a drunken mood in front of the house of the prohibition offender. 6. The first respondent in his counter affidavit has submitted that petitioner was directly recruited as Grade I police constable on 15.04.1974 and he was promoted as Head Constable on 01.07.1983. During his tenure, he had earned 46 rewards and suffered 6 punishments. The petitioner was dealt with a charges under Rule 3(b) in PR.Nos.27/88, 33/92, 34/92 and 114/88, for chronic absent from duty etc., 7. The respondents have submitted that on 21.09.1991 the petitioner along with Police Constables Nos. 1733 and 1298 were on bandobust duty at Poulangal village, as per the directions of Inspector of Police where Milad-un-nabi festival was celebrated and returned to duty only, at about 08.30 p.m. on the same day. The Sub https://hcservices.ecourts.gov.in/hcservices/ Inspector of Police, Paralachi Police Station along with police party made a prohibition raid about 19.45 hours and found the petitioner lying in a drunken mood in front of the house of a prohibition offender, namely Sakkarai Thevar. The respondents have further submitted that the above said facts were recorded in the General Dairy of the Keelgudi Out Post Police Station. The Sub Inspector of Police continued the prohibition raid and arrested the said prohibition offender, Sakkarai Thevar S/o Periyandi Thevar of Melakallakari village along with 10 litres of I.D. arrack and registered a case in Paralachi Police Station in Cr.No.104/91. Thereafter, the Sub Inspector of Police, Paralachi police station sent a detailed report to the Superintendent of Police, Kamarajar District, narrating the events that took place on 21.09.1991. As the allegations were serious, the petitioner was placed under suspension. The Deputy Superintendent of Police, Aruppukottai conducted a preliminary enquiry within three days and recorded the statements of the departmental witnesses. Based on the preliminary report, the Superintendent of Police, Kamarajar District framed charges and directed the Deputy Superintendent of Police, Aruppukottai to conduct a detailed enquriy for passing final orders. 8. The respondents have denied the contentions that the Sub Inspector of Police, Paralachi Police Station was on enimical terms and there are no materials to prove that the Sub Inspector of Police has any ill will or motive against the petitioner. The respondents have further submitted that the preliminary enquiry was conducted in a proper manner and that the statements were recorded without any bias. The respondents have further submitted that as the departmental witnesses have clearly deposed that the petitioner was found in a drunken mood, lying in front of the house of the prohibition offender, Sakkarai Thevar, the question of producing the petitioner before the medical officer to find out as to whether the petitioner had consumed liquor or not, does not arise. They have further submitted that all the records pertaining to the charges were produced in the enquiry and that in the absence of any violation of principles of natural justice, the findings rendered by the disciplinary authority cannot be assailed on the ground of adequacy. Merely because the petitioner was not arrested and produced before the medical officer for obtaining a medical certificate to the effect he had consumed liquor would not mean that enquiry conducted by the preliminary enquiry officer was perfunctory. 9. The respondents have submitted that the statements given by the Departmental witnesses amply prove that the petitioner had slept in the house of the prohibition offender to cover up his illegal act and also tampered and fabricated a false record in the General Diary of Keelgudi Out post on 21.09.1991. It is further submitted that the defence evidence let in by the petitioner was only an attempt to save his skin. The contradictions in the evidence of the departmental witnesses 2 to 5 were only minor and does not affect the case of the https://hcservices.ecourts.gov.in/hcservices/ department. Though the witnesses have bungled to certain extent in the oral enquiry, their version before the preliminary enquiry officer and the chief examination cannot simply be ignored and the findings arrived at by the disciplinary authority and confirmed by the second respondent, the appellate authority, cannot be said to be on the basis of surmises. Both the authorities have carefully analysed the evidence on record and found that the petitioner had committed the delinquency. As the conduct of the petitioner is unbecoming a member of a disciplined force the punishment imposed is commensurate. 10. As regards the transfer to Aruppukottai Sub Division, the respondents have submitted that the said transfer was only due to administrative reasons and and no malafide can be imputed. Instead of joining the new station, the petitioner went on leave and after the expiry of the same he did not report for duty at Aruppukottai on 09.05.1992 and therefore for the absence without prior permission or leave from 09.05.1992, he was struck off as a deserter in accordance with Police Standing orders 88(i) vide office order 647/92 (C.No.G1/L.R.947/92) dated 03.06.1992. Subsequently, he was also proceeded departmentally for having absented from duty in another P.R.No.34/92 under Rule 3(b) of Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules 1955 and in view of the penalty imposed in P.R.No.33/91, the proceedings initiated for desertion is kept in abeyance. The respondents have submitted that there is no procedural irregularity in the conduct of the enquiry and since adequate opportunity has been to put forth his defence, no interference is called for and prayed for dismissal of the writ petition. 11. Mr.S.J.Jagadev, learned counsel for the petitioner, referring to the minutes and the impugned orders made the following submissions; That on, 21.09.1991, the petitioner was directed to attend bandobust duty at Keelgudi village by the Inspector of Police, and this fact has been corroborated by two constables who were examined as defence witnesses in the oral enquiry. The defence evidence has not been rebutted by the department. Excepting the Sub Inspector of Police, PW1, all other witnesses have admitted in the cross- examination, that they did not actually see the petitioner lying in front of the prohibition offender's house and that they have also clearly deposed that there was no light at the place, the departmental witnesses have also admitted that the extracts in the respective note books were made, from the General Diary entry made by the Sub Inspector of Police who was enimically deposed against the petitioner. According to the respondents, the petitioner was found lying in front of the house of the prohibition offender in a drunken mood. On the said day, PW1 was alleged to have conducted prohibition raid along with other police constables. If the version of PW1 was https://hcservices.ecourts.gov.in/hcservices/ true , then the normal reaction of any police officer would be to arrest the offender and produce the said person before the medical officer to verify whether he was under the influence of liquor. In the absence of any medical evidence to prove that the delinquent was under the influence of liquor, there is absolutely no basis or substance, in framing the charges, that the petitioner was lying in a drunken mood in front of the house of the prohibition offender. As per the contention of the department, the Sub Inspector of Police had arrested Sakkarai Thevar, a prohibition offender, in whose house the petitioner was alleged to have slept. If that be the case, the said Sakkari Thevar, could have been examined in the enquiry proceedings also. Having regard to the retraction of evidence let in by Pws 1, 3, 4 and 5 in the cross-examination, the findings of the disciplinary authority that the petitioner was in drunken mood, solely based on the statements obtained in the preliminary enquiry, without concrete medical evidence is perverse and therefore, it warrants interference. 12. According to the learned counsel for the petitioner, the medical officer is the competent authority to say whether a person has consumed liquor or not. The preliminary enquiry officer did not question the Sub Inspector of Police as to why he did not produce the petitioner before the medical officer to obtain a drunkenness certificate. The petitioner was also not examined in the preliminary enquiry nor the preliminary enquiry officer verified with the two police constables examined on behalf of the petitioner as to whether they had gone for bandobust duty as per the directions of the Inspector of Police. Had the preliminary enquiry officer examined the defence witnesses, DW1 and DW2, and verified the General Diary entry of Keelgudi Out Post, it could have been brought to the light that the whole episode projected by PW1 was purely motivated against the petitioner. 13. Learned counsel for the petitioner further submitted that as regards tampering of General Diary by the petitioner, there is no evidence excepting the statement of PW1, and the other witnesses have who had deposed that they merely copied the statement prepared by the Sub Inspector of Police. Even assuming that there was tampering, it is incumbent on the part of the department to produce the General Diary in the enquiry, to substantiate the charge. He further submitted that even assuming without admitting if the petitioner, was found lying in a drunken mood in front of the house of Sakkarai Thevar nothing prevented the Sub Inspector of Police and his police party to apprehend the petitioner, after entering in the General Diary, at 20.00 hrs on 21.09.1991 and send him for medical examination. 14. Learned counsel for the petitioner submitted that placing reliance on the statements obtained behind the back of the petitioner during the preliminary enquiry, when the same were contradicted in the oral enquiry, amounts to violation of the fundamental principle https://hcservices.ecourts.gov.in/hcservices/ and that in domestic enquiry, rules of substantial evidence have to be applied and the appreciation of the evidence on the basis of the above statement obtained during preliminary enquiry in preference to the evidence recorded in oral enquiry is grossly illegal and therefore, there is a procedural violation on the part of the disciplinary authority. 15. Learned counsel for the petitioner further submitted that though Courts have consistently held that the power of judicial review has to be exercised not to reappreciate the evidence and substitute the findings of the disciplinary and appellate authorities, in the case on hand, in the absence any evidence of drunkenness and tampering with the General Diary, the Court has to see as to whether there is any preponderance of probability in arriving at the said conclusion on the basis of the available evidence. He submitted that, the finding of the enquiry officer ought not have been interfered with by the respondents 1 and 2. 16. Referring to the appellate authority order dated 14.07.1993, which is enclosed at page 107 of the typed set of papers, learned counsel for the petitioner submitted that, without due application of mind, by observing that he had agreed with the findings of the oral enquiry officer and the punishing authority, he has simply rejected the appeal. Learned counsel for the petitioner submitted that the appellate authority has failed to consider the enquiry officer's report that the charges are disproved and therefore, the observation made by the appellate authorities order itself reflects the total non application of mind. He further submitted that none of the points raised in the memorandum of appeal were adverted to by the appellate authority and that there is a failure to exercise the jurisdiction vested in him. 17. Per contra, Mrs.Lita Srinivasan learned Government Advocate appearing for the respondents by referring to the enquiry proceedings and the impugned order dated 13.04.1993 submitted that the departmental witnesses 1, 3, 4 and 5 have clearly deposed in the oral enquiry that the delinquent was lying in front of the house of Sakkari Thevar and that in the absence of eliciting any fresh points from the departmental witnesses, there is no reason to reject their evidence. She further submitted that arresting the petitioner and producing him before the medical officer is required only if there was any intention to prosecute him for any offence under the penal laws. Since it was only a reprehensible conduct of a government servant in lying in front of a prohibition offender, non production of the delinquent is not vital for the disciplinary proceedings. According to her, the said argument could be accepted only if the department had initiated a prosecution for drunkenness. She further submitted that strict proof of evidence, as contemplated for proving the guilt of drunkenness, before the criminal Court is not required. If the delinquent was not in a drunken mood, there is no necessity to https://hcservices.ecourts.gov.in/hcservices/ lie down in front of the house of the prohibition offender and that itself proved that the petitioner being a member of a disciplined force was not in a normal state of affairs on the said date. 18. Learned Government Advocate further submitted that as regards the evidence let in on behalf of the department, no doubt there were some minor contradictions here and there, but on the whole, in the absence of any specific pleadings and proof of malafide against PW1, Sub Inspector of Police, and other prosecution witnesses 2 to 5, who have clearly stated that the delinquent was lying in a drunken mood, the findings arrived at by the disciplinary authority and confirmed by the appellate authority cannot be termed as perverse warranting interference. She further submitted that during the course of enquiry, PW1, Sub Inspector of Police has clearly stated that he had gone to Keelgudi Road Junction for arranging transport facilities to take the delinquent to a medical officer and when he had returned, the delinquent was not found in that place. Therefore, the learned counsel for the State submitted that steps were taken to produce the delinquent before the medical officer, but the same did not materialise as the petitioner was not found at the said place. 19. As regards tampering and fabricating false records, the General Diary of Keelgudi Out Post dated 21.09.1991, the learned counsel for the respondents submitted that the said misconduct has been proved by oral and documentary evidence let in by PW8, sentry constable, Keelgudi Out Post and Ex.P8 special report of PC 1708 Kalichamy dated 23.09.1991. According to her, the raid conducted by the police authority headed by the Sub Inspector of Police on 21.09.1991, has amply proved by the oral evidence and the fact that Sakkari Thevar was arrested on the same day for commission of prohibition offence clearly established that the delinquent was conniving with the prohibition offenders and allowed the movement of I.D. Arrack in Keelgudi Out Post police limit. Again referring to the impugned order dated 13.04.1993 of the Superintendent of Police, learned counsel for the respondents submitted that the preliminary enquiry has been conducted in a proper manner and there was nothing perfunctory in the enquiry. The statements given by the departmental witnesses, before the preliminary enquiry, were quite clear and therefore the same can be relied on even though there are some contradictions. As the delinquent, was a member of the disciplinary force, lying in a drunken mood in front of the house of a prohibition offender is a serious misconduct and therefore, the conclusion arrived at by the disciplinary authority and the appellate authority that he was not fit to continue in the uniformed service for the misconduct is in order. Therefore, no interference is called for in the punishment order. 20. Heard the learned counsel for the petitioner and perused the materials on record. Before adverting to the facts of this case, it is relevant to extract few judgments of the Supreme Court on the https://hcservices.ecourts.gov.in/hcservices/ issue of Courts's power to reappreciate evidence in departmental proceedings. In Gultheep Singh v. Commissioner of Police and others reported in 1999 (2) SCC 10, at paragraph 9, the Supreme Court held that normally the Apex Court and the High Court will not interfere with the finding of fact recorded at the domestic enquiry, but if the finding of guilt is based on no evidence, it would be perverse finding and would be amenable to the judicial scrutiny. Further, at Paragraph 32, the Court held the reasonable opportunity means "hearing" in accordance with the principles of natural justice under which one of the basic requirement is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them. 21. In Apparel Export promotion Council and A.K.Chopra reported in 1999 (1) CTC 316, the Supreme Court while considering the scope of judicial review held that Court cannot substitute its judgment for that of the administrative authority. At para 16, 17, it is held as follows: "16. The High Court appears to have over- looked the settled position that in departmental proceedings, the Disciplinary Authority is the sole Judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts being the sole fact finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in Writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or in-adequacy of the evidence is not permitted to be canvassed before the High Court. Since, the High Court does not sit as an Appellate Authority, over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot normally speaking substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment or penalty imposed by the Disciplinary or the Departmental Appellate Authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned https://hcservices.ecourts.gov.in/hcservices/ Single Judge and the Division Bench of the High Court, it appears, ignored the well-settled principle that even though judicial review of administrative action must remain flexible and its dimension not closed, yet the court in exercise of the power of judicial review is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process