IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 21.10.2008 CORAM THE HONOURABLE MR. JUSTICE S.MANIKUMAR W.P.No.28074 of 2006 C.Velu .. Petitioner Versus State rep. By its Secretary to Government, Home (Police II) Department, Fort St. George, Chennai  9. ... Respondent Writ petition is filed under Article 226 of the Constitution of India praying for a writ of Certiorarified Mandamus to call for the records connected with G.O.(3D) No.103 Home (Police II) Department dated 17.06.1996 and set aside the same. For Petitioner : Mr.S.Ilam Valudhi For Respondent : Mr.C.K.Vishnupriya, AGP O R D E R The petitioner has challenged the order of the Government in G.O.(3D)No.103 Home (Police II) Department, dated 17.06.1996 imposing a punishment of stoppage of increment for a period of one year without cumulative effect. 2.The facts of the case are as follows: The petitioner joined police department as a direct recruit Sub Inspector of Police, Armed Reserve and thereafter promoted as Inspector of Police. While he was serving as Inspector of Police, Armed Reserve, Kamudhi Special Force, Kamudhi, he was the Secretary of Ramanathapuram District Police Employees Cooperative Stores, Kamudhi from 25.08.1987 to 25.05.1989. A charge memo in PR.No.14/92, dated 02.03.1993 was issued by the Deputy Inspector General of Police, Ramanthapuram to the petitioner in connection with his duties as Secretary of the Co-operative Society. In response to the above, the petitioner submitted his explanation. Not satisfied with the same, an oral enquiry was ordered. The Superintendent of Police, who enquired into the charges held that the first charge as not proved and in so far as the second and third charges are concerned, found the petitioner guilty of the charges. Agreeing with the report, the government imposed a punishment of stoppage of increment for one year without cumulative effect. Aggrieved by the same, the petitioner has preferred Original Application before the Administrative Tribunal, which has been subsequently transferred as writ petition. 3.Though several grounds have been raised in the writ petition, Mr.S.Ilamvaludhi, learned counsel appearing for the petitioner submitted that the irregularities pointed out in the charge memo relate to the affairs and administration of a Co-operative Store, governed under the provisions of Tamil Nadu Co-operative Societies Act and the rules framed thereunder and therefore, for the lapses or irregularities alleged to have been committed by the petitioner, action can be taken only under the Tamil Nadu Co-operative Societies Act and the rules and initiation of disciplinary proceedings under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules is without jurisdiction and therefore, the whole proceedings are vitiated. 4.Learned counsel for the petitioner further submitted that for the post of Inspector of Police, the Deputy Inspector General of Police is the appointing authority. According to him, when the charges are framed by the appointing authority viz., the Deputy Inspector General of Police, and therefore, the order of punishment ought to have been passed only by his immediate superior officer, namely, the Inspector General of Police, so that the aggrieved person could avail the statutory remedies of an appeal and revision, provided under the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules 1955. As the order of penalty of stoppage of increment for a period of one year without cumulative effect has been passed by the Government, the petitioner's has lost his statutory right of appeal and therefore, there is a violation of principles of natural justice warranting interference from this Court. Excepting the above, learned counsel for the petitioner did not urge any other point. 5. Reiterating the averments made in the counter affidavit, Mrs.C.K.Vishnu Priya, learned Additional Government Pleader submitted that Ramanad District Employees Co-operative Societies, Kamudhi Special Force was registered on 10.08.1987. As per the bye laws of the Co-operative Society, stores have to be purchased and sold to its members at reasonable rate. In the absence of any provision in the bye laws, purchase and sale of foreign goods, to its members should not be made. But contrary to the above said bye laws, the petitioner had purchased foreign goods from Customs Circle, Ramanathapuram on various dates, i.e. 04.02.1988, 10.02.1988 and 23.02.1988. 6.She has further submitted that on 04.02.1988, the Customs Circle, Rameswaram had supplied 500 foreign soaps to the tune of Rs.1,350/- and also levied Sales Tax at 6% i.e. Rs.81/- to the District Police Employees' CO-operative stores. On 10.02.1988, the Customs Department had further supplied 21.70 meters of polyster Hara pant cloth for Rs.1,269.45 and that on 23.02.1988, the petitioner had purchased six items of foreign goods for Rs.11,786.40 for the District Police Employees' CO-operative stores. 7.It is also her contention that foreign goods from the Customs Department were received by non- members, which is contrary to the resolution of the General Body Meeting. It is further contended that as per the existing procedure, Co-operative Stores should not sell the articles received from the Customs Department, at higher rates than the rates fixed by Customs, as 10% discount is already given on the articles purchased from them and that the society is thereby benefited by the said discount. Therefore, she submitted that the petitioner, who sold foreign articles to the members of the society at higher rates than the rates fixed by Customs Department had committed irregularities. 8.According to her, both the petitioner as well as the Deputy Superintendent of Police, District Crime Records Bureau had sold foreign goods at higher rates than the rate fixed by Customs Department. The excess amount of Rs.4,389.50 was not brought on record and there was misappropriation. 9.She further submitted that though on 29.12.1988, a Senior Inspector, Auditor of the Tamil Nadu Co-operative Department, who verified the cash balance of the Police Co-operative Stores and found out the irregularities had requested the petitioner not to retain such huge amount, the petitioner had simply brushed aside the instructions and continued to retain the society's money, to the tune of Rs.4,733.88 from 09.01.1989 to 06.03.1989. For all these allegations, the petitioner was rightly dealt with, by issuing a charge memo under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules 1955. 10. Learned counsel for the respondents further submitted that the enquiry officer, Superintendent of Police, Ramanathapuram has found the first count of the charge as not proved and charges No.2 and 3 were amply proved. Accepting the findings of the enquiry officer, the Government have imposed a punishment of stoppage of increment for one year without cumulative effect. 11. Learned counsel for the State, further submitted that in the absence of any perversity, this Court should not sit over the findings recorded by the enquiry officer. She further submitted that even temporary mis-appropriation of money is a serious misconduct and the petitioner who had failed to maintain absolute irregularity, deserves punishment. It is also submitted that being the Secretary of the Society, the petitioner ought to have rendered necessary assistance to his superior officer. In as much as, there is no procedural irregularity in the departmental enquiry and as the finding of the enquiry officer is based on oral and documentary evidence, she prayed for dismissal of the writ petition. 12. Heard the learned counsel for the parties and perused the material on record. 13. Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, (in short "the rules") indeed provides for a right of appeal, revision and review, to an aggrieved person, where the punishment is imposed by the authorities, subordinate to Government. As per the rules, where more than one member of a service is involved, the authority competent to hold disciplinary proceedings and impose any of the penalty specified in Rule 2, shall be the authority in respect of a member, who holds the highest post and the disciplinary proceedings against all those shall be taken back. In the case on hand, the Deputy Superintendent of Police, District Crime Records Bureau and the Inspector of Police, petitioner herein, were involved in the allegation of misappropriation of Rs.4733.88 and other charges. Therefore, as per proviso to Rule 4(A) of the rules, the Government shall be the authority competent to initiate disciplinary proceedings and in such case, the administrative department of the Secretariat in respect of a member, who holds the highest post will initiate the disciplinary proceedings and issue final orders, after complying with the procedure contemplated under the rules. Since the allegations were similar, the government being the competent authority to impose the penalty specified in Rule 2 of the Discipline and Appeal Rules, have exercised their discretion to conduct a joint enqiry into the allegations against the Deputy Superintendent of Police and the petitioner. Exercise of discretion in the light of the statutory provision, cannot be found fault with. 14. The expression "Audi Alteram Partem" among other facets include (a) notice of the case to be met, (b) opportunity to explain. It is well settled that the concept of reasonable opportunity is elastic and not susceptible of easy precise definition. What is a reasonable opportunity under one set of circumstances need not be reasonable under different circumstance, like in the present case, where the Government, the ultimate authority, have decided to conduct a joint enquiry and impose appropriate penalty on two officials, who were involved in an act of misappropriation. All that is contemplated under the Discipline and Appeal Rules is that an opportunity of fair hearing, real and effective should be given to the charged officer, before he is found guilty and that the administrative authority should act in a just and fair manner. Rule 5(A) of the Discipline and Appeal Rules states that a member of the service, in whose case, the government have passed the original order, shall be entitled to submit within a period of two months from the date on which the order was communicated to him, a petition to the government for review of the order passed by them on any of the grounds specified below: (i) that the order was not passed by the competent authority, (ii) that a reasonable opportunity of defending himself was not given. (iii) the punishment is excessive and unjust; (iv) discovery of new matter or evidence which the appellant alleges and proves to the satisfaction of the government was not within his knowledge or could not be adduced by him before the order imposing the penalty was passed. (v) evident error or omission such as failure to apply the law of limitations or an error of procedure apparent on the face of record. (2) The petitions for review which does not satisfy any of the grounds shall be summarily rejected. 15. If the government have chosen to inflict a penalty as per the rules, it cannot be said that the aggrieved person is remediless. Statutory Rules enable him to submit a petition to the government for review of the orders passed by them on the specific grounds stated supra. It is a well accepted principle that, "if authority is given expressly, though by affirmative words, upon a defined condition, the expression of that condition excludes the doing of the act authorised, under the other circumstances than those so defined. 16. The maxim "Expressio Unius Est Exclusio Alterius" meaning, the express mention of one thing implies the exclusion of another, can be made applicable to the present case. 17. Legislature has expressly enacted Rules 4A and 5A of the Discipline and Appeal Rules, empowering the government to pass any of the penalties in Rule 2 of the Discipline and Appeal Rules and review the decision on a petition submitted by the aggrieved person. In all other cases, as per Rule 5, a member of the service shall be entitled to appeal from an order imposing on him any of the penalties specified in Rule 2;, (a) if such an order was passed by an authority specified in the relevant column of the schedule, to the authority specified in the last column thereof, (b) if such an order was passed by an authority other than the State Government higher than that specified in the relevant column of the Schedule, to the next higher authority higher authority to whom the former authority is administratively subordinate. 18. Rule 4 of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, states that the authority, which may impose any of the penalties prescribed in Rule 2, on a member of the service specified in column (i) of the Schedule to these rules shall be the authority specified in the corresponding entry in columns (ii), (iii), (iv), (v), (vi) and (vii) or (viii) thereof whichever is relevant or any higher authority. In respect of Inspectors of Police working in Mofussil districts, the lowest authority, which may impose penalty referred to in Rules 2, 4 and 5 of the said rules are as follows: THE SCHEDULE (Referred to in Rules 2, 4 and 5) Lowest authority which may impose the penalty of TAMIL NADU POLICE SUBORDINATE SERVICE (i) Class of Subordinates 1. Inspector of Police- (a) Mofussil (i) Districts (ii) Reprimand Superintendent (iii) Censure or black-mark in the class of Reserve Assistant, Sub-Inspectors, Head Constables and others of corresponding rank Superintendent (iv) Withholding of increments or promotion or stoppage at an efficiency bar or recovery from pay to the extent necessary of the monetary value equivalent to the amount of increments ordered to be withheld, where such an order cannot be given effect to or recovery from pay to the extent necessary of the monetary value equivalent to the amount of reduction to a lower stage in a time- scale ordered were such an order cannot be given effect to Superintendent (v) Reduction to a lower rank in the seniority list or to a lower rank in the seniority list or to a lower grade, post or time-scales or to lower stage in the same time-scale Deputy Inspector General concerned (vi) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders Superintendent (vii) Suspensions Deputy Inspector General concerned (viii) Compulsory retirement or removal or dismissal Deputy Inspector General concerned (ix) Appellate authority Deputy Inspector General of police concerned in respect of order passed by officers below the D.I.G., in gradation and the A.D.G.P.(L&O) in respect of others passed by the Deputy Inspector-General 19. In the case on hand, the punishment imposed is stoppage of increment for a period of one year without cumulative effect. Reading of rule 4 along with the Schedule makes it clear that the lowest authority competent to impose the punishment of withholding of increments or promotion or stoppage at an efficiency bar or recovery from pay to the extent necessary of the monetary value equivalent to the amount of increments ordered to be withheld, where such an order cannot be given effect to or recovery from pay to the extent necessary of the monetary value equivalent to the amount of reduction to a lower stage in a time-scale ordered were such an order cannot be given effect to, is the Superintendent of Police. 20. The appellate authority is the Deputy Inspector General of Police concerned. The said rule also empowers higher authorities to impose any of the penalties prescribed in Rule 2, on a member of service specified in column 1 of the schedule to the rules. Government is competent to initiate disciplinary proceedings against the Deputy Superintendent of Police, who is a member of the Tamil Nadu State Service. A combined reading of Rule 4, 4(A) of the Discipline and Appeal Rules and the Schedule makes it clear that the Government, being one of the higher authorities is empowered to impose the penalties specified in Rule 2, on a member of the service, if a joint enquiry is ordered. Therefore, the contention of the learned counsel for the petitioner that the Government have no jurisdiction to initiate disciplinary proceedings and impose a penalty on a member of a subordinate service, is not tenable. 21. It is an admitted fact that the petitioner was the Secretary of Ramanad District Police Employees Co-operative Stores, Kamudhi from 25.08.1987 to 25.05.1989. The bye laws of the Co-operative Society, formed for the welfare of the policemen, Armed Reserve, Kamudhi State that stores, other domestic needs and requirements of life may be purchased and sold to its members for a reasonable rate. Prima facie there is a violation of the bye laws of the society and retention of money due to the society, for which charges have been framed against the petitioner under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules 1955. The charges framed against the petitioner are as follows: i) Reprehensible conduct in having purchased foreign goods unauthorisedly from the Customs Circle, Ramanthapuram on 4.2.88, 10.2.99 and 23.2.88. ii)Reprehensible conduct in having committed malpractice in Ramanathapuram District Police Employees' Co-operative Stores in the sale of foreign goods during February, 1988 at higher rate than fixed by customs on 4.2.88, 10.2.99 and 23.2.88 by him and Thiru S.Durairaj, Deputy Superintendent of Police, District Crime Record Bureau, Ramanathapuram and misappropriated the excess amount of about Rs.4,389.50 which was not brought on to record. Iii) Reprehensible conduct in having kept very heavy cash balance from 9.1.89 to 6.3.89 despite the direction given by the Senior Inspector/Auditor, CO-operative Department, Ramanthapuram on 29.12.88 in the Day Book of the Co-operative Stores, Kamudhi Special Force, Kamudhi. 22. Perusal of the charge memorandum show 77 persons were cited as prosecution witnesses and 22 documents were sought to be marked. In the departmental enquiry, oral and documentary evidence were let in and prosecutionwitnesses1,10,11,12,13,28,30,33,41,47,48,49,50,51,56, 67,69 have spoken about the irregularities committed by the petitioner and the Deputy Superintendent of Police, who was enquired along with the petitioner. 23. Violation of purchasing foreign goods to the Co-operative Society by non-members of the society and the sale of articles to the members of the society at higher rates and misappropriation of goods amounting to Rs.4,733.86 have been proved by the department. Though for voilation of statutory provisions and the bye laws of society, action can be taken against the petitioner by the competent authority under the Co-operative Societies Act and the rules framed thereunder, the petitioner being an Inspector of Police is expected to maintain honesty and integrity in the discharge of his duties. Misappropriation of funds of a society, formed for the welfare of the policemen, Armed Reserve, Kamudhi and retention of cash balance without accounting for the same is certainly a serious misconduct warranting disciplinary action. The nature of action that could be taken against a member of a society under the provisions of the Tamil Nadu Co-operative Societies Act and the rules framed thereunder is certainly different than the one taken for misconduct under the discipline and appeal rules. Merely because, action can be taken against the member of the society under the Tamil Nadu Co-operative Societies Act for the irregularities, that will not preclude the Government or the competent authorities from initiating appropriate disciplinary action. In view of the above, the contention of the learned counsel for the petitioner to the contra does not merit any consideration. 24.In the result, I do not find any valid grounds to interfere with the impugned order. Accordingly, this writ petition is dismissed. No costs. 21.10.2008 Index : Yes Smi To Secretary to Government, Home (Police II) Department, Fort St. George,Chennai  9. S.MANIKUMAR, J. Smi WP.No.28074 of 2006 21.10.2008