GOVERNMENT OF TAMIL NADU AND OTHERS

S. VEL RAJ

DECEMBER 19, 1996

(S.C. AGRAWAL AND G.T. NANAVATI, JJ.]

Service Law-Tamil Nadu Police Subordinate Service (Discipli11e a11d Appeal) Rules J95~Rule 2-Departmental E11quiry for misco11duct-Pe11alty-Police Officer appeqri11g before Supeiior Officer i11 'Mufti' a11d i11 dru11ken C co11ditio11 while 011 duty-Gross misconduct a11d is "good a11d sufficie11t

reaso11" for i11itiati11g departmental proceedi11g a11d for imposi11g of the pu11ishme11 t of compulsory retireme11t-Chargesheet-Authority compete11t to issue-Need 11ot be issued by the appointi11g auth01ity-Evide11ce led i11 the e11quiry-Reappreciatio11 of-Tribu11al can11ot re-exami11e the evide11ce whe11 D it was 11ot co11tended that the fi11di11gs arrived at 011 the basis of the evidmce

is perverse.

The respondent, a Head Constable in the Tamil Nadu Police was chargesheeted for having been found in the drunken state and in 'Mufti' while he was on duty. Charge Memo was issued by the Deputy Superinten- E dent of Police who was not the appointing authority. On enquiry, the charges were held to be proved and by way of punishment he was reverted as Constable Grade-I. The respondent appealed against the order, but the appellate authority was of the view that the punishment was lenient and it issued a show cause notice for enhancement of the penalty. IBtimately he was compulsorily retired. The respondent challenged the discipli- F nary enquiry and the punishment, and the Tribunal allowed the application and quashed the order of punishment and directed his reinstatement with all consequential benefits. Against the said decision of the Tribunal the State Government has preferred the present appeal.

G Allowing the appeal, this Court

HELD : 1. The Tribunal was wrong in holding that there was no valid initiation of the disciplinary proceeding against the respondent because the chargesheet was issued by the Deputy Superintendent of Police, who is not the appointing authority. There is nothing in the Rules which requires H that the charge memo has to be issued only by the appointing authority or 452

GOVT.OFT.N.v. S.VELRAJ(NANAVATI, J.)

an authority holding a higher rank. [455-D-E; 454-H; 455-A]

Inspector General of Police v. Thavasiappan, [1996] 2 SCC 145, relied on.

2. The Tribunal transgressed its jurisdiction in examining the evidence as if it was an appellate authority. The Tribunal committed a B mistake in re-examining the evidence and holding that it did not deserve to be accepted because of the inconsistencies therein. The Tribunal was not holding a criminal trial and therefore ought not to have exonerated the respondent by holding that it was not proved "beyond all doubts that the appellant had consumed prohibited liquour". The findings recorded by C the Enquiry Officer and confirmed by the Appellate Authority were based upon evidence led during the enquiry and it was not even contended that the findings were perverse. It was therefore, not open to the Tribunal to record contrary findings and holding that the charge against the respondent was not proved. [455-F-H]

3.1. The Tribunal was also wrong in holding that what was alleged against the respondent did not amount to an act of 'Misconduct'. Under .

I Rule 2 of the Tamil Nadu Police Subordinate Services (Discipline and

Appeal) Rules, 1955, punishment can be imposed upon a member of the service for "Good and sufficient reason". The Tribunal ought to have E . examined the case from that angle. The "drunken state" of the respondent and his being in 'Mufti' while on duty is gross misconduct and it is good and sufficient reason for initiating departmental proceeding and imposing of the punishment of compulsory retirement. [ 456AC]

3.2. The Police has to be a dl.sclplined force and the member of the F Police force has to behave in a disciplined manner particularly when he is on duty. In view of the facts and circumstance of the case, the punishment imposed upon the respondent is not excessive. [456-C-E]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9385 of G 1995.

From the Judgment and Order dated 19.4.94 of the Tamil Nadu Administrative Tribunal in T.A. No. 271 of 1992.

Arputham & Co. for the Appellants.

A S. Srinivasan for the Respondent.

The Judgment of the Court was delivered by

NANAVATI, J.: This appeal was heard along with Civil Appeal No. 4187 of 1994 but we are disposing of the same by a separate judgment.

The respondent is a Head Constable and as such a member of Tamil Nadu Police Subordinate Service. On 20.7.84 he was served with a charge memo for an act of misconduct committed on 7.7.84 and a departmental enquiry was thereafter initiated against him. The charge was held proved C and by way of punishment he was reverted to the lower grade, that is, from Head Constable to Police Constable Grade I. He appealed against that order. As the appellate authority was of the view that punishment imposed upon the respondent was very lenient it issued a show cause notice to him for enhancement of the penalty. His appeal was dismissed and by way of punishment he was compulsorily retired. The respondent then filed a writ D petition in the High Court of Madras challenging not only the punishment imposed upon him but also initiation of the enquiry against him. That petition was transferred to the Tamil Nadu Administrative Tribunal and was numbered as T.A. No. 271of1992.

E The charge against the respondent was that on 7.7.84 he was deputed to attend a case pending before the Sub-Divisional Judicial Magistrate, Usilarnpatti. He left the police station and returned to it at about 8 P.M. and reported before the Sub-Inspector of Police who was Incharge of the Police Station. At that time he was drunk and was in 'mufti'. During the enquiry evidence was led to prove that the respondent was in a drunken F condition, that he had admitted before the Sub-Inspector of Police that he had consumed 'arrack' and that he was in 'mufti' at that time though on duty. The fact that he was in 'mufti' was not disputed but an attempt was made in cross-examination of the witnesses by way of suggestions that he was often suffering from stomach pain and was, therefore, taking medicine.

G He also examined a doctor in his defence who deposed that for stomach pain he had prescribed medicine known as B.G. Phos and that if sufficient quantity of that medicine is consumed there would be smell of alcohol and the eyes would become reddish.

The Tribunal held that initiation of the enquiry against the respon- H dent was bad because the charge memo was issued by the Deputy Super-

GOVf.OFT.N.v. S.VELRAJ(NANAVATI, J.] 455

intendent of Police who was not an appointing authority and it is a A well-settled principle of law that only the appointing authority can take. disciplinary action and that the said power cannot be delegated. On merits, the Tribunal considered the evidence as if it was sitting in appeal and held that the evidence was inconsistent and it was not proved "beyond all doubts that he had consumed prohibited liquor". It also held that neither consump- B tion of alcohol by a member of the police force nor appearance in 'mufti' in the police station can be considered as an act of misconduct. It also held that the appellate authority had not conducted the enquiry in the prescribed manner before enhancing the punishment and, therefore, the order passed by him was also bad. It, therefore, allowed the application, quashed the impugned order of punishment and directed the authorities C to reinstate the respondent with all consequential benefits.

It was contended by the learned counsel for the appellant-State that the Tribunal has committed an error of law in holding that initiation of the disciplinary enquiry against the respondent was not lawful. He submitted D that there is nothing in the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules; 1955 which requires that a charge memo has to be issued only by an appointing authority or an authority holding a higher rank. This point is now covered by the decision of this Court in Inspector General of Police v. Thavasiappan, (1996) 2 SCC 145. We, there- E fore, hold that the Tribunal was wrong in holding that there was no valid initiation of the disciplinary proceeding against the respondent.

The learned counsel for the appellant was also right in his criticism that the Tribunal transgressed its 'jurisdiction in examining the evidence as F if it was an appellate authority. The law on this point is also now well-settled. The Tribunal obviously committed a mistake in re-examining the evidence and holding that it did not deserve to be accepted because of the . inconsistencies therein. The Tribunal was not holding a criminal trial and, therefore, ought not to have exonerated the respondent by holding that it G was not proved "beyond all doubts that the applicant had consumed prohibited liquor". The finding recorded by the Enquiry Officer and confirmed by the appellate authority were based upon the evidence led during the enquiry and it was not even contended that the said findings were perverse. It was, therefore, not open to the Tribunal to record contrary findings and hold that the charge against the respondent was not proved. H

A The Tribunal was also wrong in holding that what was alleged against the respondent did not amount to an act of misconduct. Under rule 2 of the rules punishment can be imposed upon a member of the service 'for good and sufficient reason'. Therefore, the Tribunal ought to have examined the case from that angle. The respondent when he appeared before B the P.S.I. at 8 P.M. on 7.7.84 was on duty. He had returned to the police station for reporting to the PSI as to what he had done regarding the directions given to him earlier. At that time he was found in a drunken condition and was in 'mufti'. He had even admitted before the P.S.I. that he had consumed 'arrack' and it was for that reason that he was smelling of alcohol In this context, it was required to be considered whether there C was 'good and sufficient reason' for initiating a disciplinary proceeding against him and imposing the punishment of compulsory retirement. The police force has to be a disciplined force and a mel'lber of the police force has to behave in a disciplined manner particularly when he is on duty. The respondent even though he was sent for official work and was on duty D returned to the police station in 'mufti' and in a drunken condition after consuming 'arrack'. He had returned to the police station to report to his superior officer as to what happened to the work which was eµtrusted to him. Under these circumstances, his behaviour has to be regarded as an act of. gross misconduct. It is difficult to appreciate how the Tribunal <_:<>uld persuade itseH to take a contrary view. In view of the facts and circumstan- E ces of this case it is not possible to say that the punishment which was imposed upon him was highly excessive. The appellate authority after considering his previous record and after giving him an opportunity to show cause against the proposed enhancement had passed the order of punishment. Though the Tribunal has held that the enquiry was not conducted F by the appellate authority as required by the rules it has not been pointed out which requirement of the rule had not been complied with. The Tribunal was, therefore, wrong on this count also. In the result, this appeaI is allowed and the order passed by the Tnbunal is quashed and set aside.

In view of the facts and circumstances of the case, however, there shall be no order as to oosts.

H.K.

Appeal allowed.

,;.. .