Case: Secretary to Government Vs. A.C.J. Britto

The respondent was appointed as a Sub-Inspector of Police in 1962. While posted at Madurai, a departmental action was initiated against him under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules and on being found guilty he was dismissed from service by an order dated 3.11.1979. That order was set aside in appeal by the Inspector General of Police on the ground that in conducting the inquiry there was violation of the prescribed procedure. The enquiry officer was directed to proceed further with the inquiry from the stage it was found to be bad.2. As the order of dismissal was set aside the respondent was reinstated in service. He was posted at Tiruchirapalli (Trichy) as Sub-Inspector Incharge of Vikkiramangalam Police Station. He joined the duty at that Police Station on 12.11.1980 and proceeded on casual leave from 13.11.1980 to 19.11.1980. Instead of resuming duty on 20.11.1980 he applied for medical leave and thereafter went on extending it continuously till he was placed under suspension on 14.6.1981. As he was remaining continuously absent on the ground of health, the Superintendent of Police, Tiruchirapalli by his memo dated 22.4.1981 directed him to appeal before the District Medical Officer for being presented before the Medical Committee for examination as regards his fitness to return to duty. He did not appear before the District Medical Officer on that day. The Superintendent on Police, therefore, again by a memo dated 4.6.1981 directed him to appear before the District Medical Officer for the said purpose. That memo was served upon the respondent on 4.6.1981 itself. The District Medical Officer, Trichy by a letter dated 4.6.1981 requested the Superintendent of Police to direct the respondent to appear before the Medical Board at Government Headquarters Hospital, Trichy on 9.6.1981 at 10 hours for medical examination. A communication to that effect was also served upon the respondent. As the respondent did not appear for medical examination on 9.6.1981, the District Medical Officer by his letter dated 10.6.1981 informed the Superintendent of Police about non-compliance of the said directions. His non-appearance and non-compliance with the order of the Deputy Superintendent of Police were reported to Inspector General of Police. Considering it as an act of misconduct the respondent was suspended on 14.6.1981 and a departmental proceeding by issuing a charge-memo was initiated against him on 27.7.1981. The said charge-memo could not be served upon the respondent earlier than 2.11.1981 as he was not available. The enquiry officer concluded the inquiry and found him guilty and on the basis thereof an order of dismissal was passed against him by the disciplinary authority on 24.5.1984.3. He challenged that order of dismissal by filing a writ petition in the High Court of Madras. That petition was subsequently transferred to the Tamil Nadu Administrative Tribunal and was numbered as T.A. No. 606 of 1991. The respondent challenged his dismissal on the ground that the inquiry and the dismissal order were vitiated as the disciplinary proceedings were initiated against him by an officer subordinate in rank to the disciplinary authority. It was also challenged on the ground that by not appearing before the Medical Board the respondent cannot be said to have disobeyed the order of the superior authority and in any case, that did not amount to a misconduct of grave nature. It was also challenged on the ground that the enquiry officer, by denying him the documents which he wanted, deprived him of a reasonable opportunity to defend himself. The Tribunal, relying upon its earlier judgments, held that the disciplinary authority alone can initiate a disciplinary proceeding against a Government servant under Rule 3(b) of the said Rules and as the charge-memo in this case was issued by an officer subordinate to the disciplinary authority the entire disciplinary proceeding stood vitiated. The Tribunal also held that the applicant wanted a railway warrant to enable him to appear before the Medical Board at Trichy and as the same was not given to him he cannot be said to have disobeyed the order of a superior authority. For that reason and also on the ground of absence of any provision under which non-appearance before a Medical Board can be considered as an act of misconduct the Tribunal held that there was no justification for initiating a disciplinary proceeding against him. The Tribunal also held that the enquiry officer by denying his request to have the documents which he had asked for and for perusal of a file had deprived him of a reasonable opportunity to defend himself. The Tribunal also held that as the applicant was not given a copy of the inquiry report and as the order was passed without giving him a further notice his dismissal has to be regarded as bad. The Tribunal, therefore, quashed and set aside the order of dismissal.

Reasoning:
5. The view taken by the Tribunal as regards the effect of non-furnishing a copy of the enquiry report is also contrary to the law declared by this Court. In this case, the order of dismissal was passed on 24.5.1984. Therefore, the Tribunal could not have nullified the order of dismissal in view of the judgments of this Court in Union of India v. Mohd. Ramzan Khan, 1991(1) SCT 111(SC) : 1991(1) SCC 588 and Managing Director, ECIL, Hyderabad v. B Karunakar, 1993(4) SCC 727 : 1994(1) SCT 319(SC). The law laid down in Mohd. Ramzan Khans case (supra) has prospective operationwill hereafter point out that there were good reasons for the authorities not to accept the said explanation. Such an act of insubordination or disobedience of an order by a police officer has to be viewed seriously as higher degree of discipline is expected of a member belonging to the Police Force. Therefore, it cannot be said that there was no good and sufficient reason or a valid justification for initiating the disciplinary proceedings againstCourt in that case has not laid down as a general principle that if an act is not specified by rules to be a misconduct then it cannot be regarded as such and an employee cannot be punished for committing such an act.The Rules applicable in this case do not specify acts of misconduct for which a delinquent officer can be punished. Rule 2 empowers the competent authorities to impose upon members of the Service penalties specified therein `for good and sufficient reason. Therefore, the decision of this Court in A.L. Kalras case (supra) is clearly distinguishable. Before holding that there was no justification to initiate disciplinary proceeding against the respondents, the Tribunal ought to have considered whether there was `good and sufficient reason for initiating such proceedings against him. It was not at justified in taking that view on the ground that such an act of delinquency has not been specified in the Rules as an act of misconduct. Not obeying a legitimate order of his superior by a member of the Police Force has to be regarded as an act of indiscipline and would certainly provide a good and sufficient reason for initiating a disciplinaryfind some force in this contention. The certificates produced by the respondent for obtaining medical leave clearly show that he was not all the time at Madras but had gone and stayed for quite a long period at Dindigul and Madurai. This circumstance was sufficient to raise a suspicion in the mind of the authorities that the ground given by the respondent for remaining absent at Trichy was really an excuse and he was not genuinely sick. It was under these circumstances that he was directed on 24.4.1981 to appear before the Medical Board. Without assigning any person he did not do so. Therefore, he was again directed by an order dated 4.6.1981 to appear before the Board on 9.6.1981. This communication was received by the respondent. On 8.6.1981 he addressed a letter to the Superintendent of Police expressing his inability to appear before the Medical Board on 9.6.1981 on the ground that he had no money to travel from Madras to Trichy and that he would appear before the Board only on completion of his leave. He had also stated therein that a railway warrant for the journey may be granted to him. What we find from the material on record is that respondent was already in Trichy on 4.6.1981 when the said order was personally served upon him. Even though he knew on that day that he was required to appear before the Medical Board at Trichy on 9.6.1981 he went away to Madras and from there sent a letter on 8.6.1981. The learned counsel for the respondent could not point out any provision requiring the police authorities to provide a railway warrant to a member of the Service under such circumstances. Mr. R. Balakrishnan, Deputy Superintendent of Police has filed an additional affidavit stating clearly that there is no such provision. This statement made in the affidavit has not been controverted. It, therefore, clearly appears to us that the reason given by him for not remaining present before the Medical Board was a false execuse. It was his intention not to comply with the said order. His not appearing before the Medical Board was with a view to avoid an enquiry regarding his true state of health so that he was not compelled to resume duty. It was thus an act of disobedience and indiscipline. Therefore, in the facts and circumstances of the case it cannot be said that there was no good and sufficient reason for initiating a disciplinary proceeding against the respondent.12. During the enquiry the respondent had asked for copies of certain documents and had also requested the Enquiry Officer to peruse the file in C.No. A1/861/81 of DIG. The Tribunal has held that as a result of the refusal the respondent was deprived of a reasonable opportunity of defending himself. From the additional affidavit filed by R. Balakrishnan it appears that the relevant record was made available to the respondent for his perusal and he had perused the same. Thereafter by his letter dated 18.1.1982 he had asked for (1) a copy of the D.O. letter dated 20.6.1981 written by the Superintendent of Police, Trichy, (2) a copy of the proceedings of the Deputy Superintendent of Police, Trichy in connection with establishing a police association at Trichy, (3) copies of the daily diaries dated 4.6.1981, and (4) copies of the letters written in 1980 and 1981 to the Home Secretary requesting permission of the Government to place him under suspension for taking part in formation of police association and the reply given by the Home Secretary. Enquiry Officer by his order dated 12.5.1982 rejected the requests made by respondent by his letters dated 18.1.1982 and 5.2.1982 on the ground that the file of the DSP which the respondent wanted to peruse was not at all relevant to the charge. Similarly, the request for the letters was rejected on the ground that they were also not relevant and calling for such records would result in abnormal delay in disposal of the enquiry. It also appears that the request for copies of the daily diaries of the said three police officers was also rejected on the ground that they were not relevant. The Tribunal without considering how those documents were relevant upheld the contention of the respondent that by not supplying copies of those documents he was denied a reasonable opportunity to defend himself. The file of the DIG which the respondent wanted to peruse was with respect to suspension of the respondent. Similarly, the two letters addressed to the Home Secretary and the replies thereto also appeared to be in connection with his suspension earlier in 1980 and 1981 for a different reason. The respondent had not even stated in his letter as to who had written those letters and on which dates they were written. The respondent had not stated why he wanted copies of the diaries dated 4.6.1981 of those police officers but it appears from the letter dated 18.1.1982 that possibly the diaries contained some information about the police meeting held on that day. It is difficult to appreciate how any of those documents and the proceedings in connection with establishing a police association at Trichy could have helped the respondent in establishing his case that he could not remain present at Trichy on 9.6.1981 because he did not have sufficient money to travel from Madras to Trichy. The fact that he was directed to appear before the Medical Board on 9.6.1981 and that he did not do so is not in dispute. The only defence of the respondent was that there was no intention on his part to flout the said direction but he could not comply with it because of his inability. We are, therefore, of the opinion that the Enquiry Officer was right in rejecting the request of the respondent to supply those documents and that the respondent had not suffered in any manner in defending himself as a result thereof.