Madras High Court
S.Yuvaraj vs The Additional Director General Of ... on 28 September, 2018
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.09.2018
CORAM
THE HONOURABLE MR. JUSTICE R.SURESH KUMAR
W.P.No.22687 of 2004
S.Yuvaraj ...Petitioner
-Vs-
1.The Additional Director General of Prison
Chennai - 8.
2.The Deputy Inspector General Prison
in-charge of Sub Jail,
Peramballur District,
Trichy Range, Trichy. ...Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorarified Mandamus to call for the
records relating to the order of the 2nd respondent dated 04.05.2004
in Proceedings No.1501/MU.VU/2004 and order of the first respondent
dated 02.07.2004 in Proceedings No.23804/EW2/2004-1 and quash
the same and direct the respondent to forthwith reinstate the
petitioner in service in the post of II grade warder at Sub Jail,
Peramballur.
For Petitioner : Mr. K.Selvaraj
For Respondents : Mr. K.Ravikumar, AGP
http://www.judis.nic.in
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ORDER
This writ petition has been filed seeking to issue a Writ of Certiorarified Mandamus to call for the records relating to the order of the 2nd respondent dated 04.05.2004 in Proceedings No.1501/MU.VU/2004 and order of the first respondent dated 02.07.2004 in Proceedings No.23804/EW2/2004-1 and quash the same and direct the respondent, to forthwith reinstate the petitioner in service in the post of II-grade warder at Sub Jail, Peramballur.
2. The shot facts which are required to be noted for the disposal of this writ petition are as follows:
2.1. The petitioner was working as Grade-II constable warder in the Sub Jail, Peramballur from 14.08.2002. While so, on 16.09.2003 at 7.30 a.m., when he was reported to duty to the Sub Jail guard, he signed the register kept by the guard officer at 7.30 a.m. for attending his para duty from 8.00a.m. to 10.00 a.m. and he attended the para duty between 8.00 a.m. and 10.00 a.m. on 16.09.2003.
However, on the next day, i.e., on 17.09.2003, a false complaint had been given against the petitioner by another Grade-I constable Elangovan as if, that the petitioner demanded the said Elangovan to change the next para duty i.e., between 2.00 p.m. to 4.00 p.m., http://www.judis.nic.in 3 instead the petitioner wanted to permit him to be in para duty between 12.00 noon to 2.00 p.m. and since the same was allegedly refused by the said Elangovan, the petitioner had opposed the said Elangovan and he was trying to beat the said Elangovan, which was resolved by the Superintendent.
2.2. Based on the said complaint, a charge memo had been framed against the petitioner, pursuant to which, an enquiry was conducted. Before the enquiry officer, the defacto complainant i.e., Elangovan, Grade-II constable and three other Grade-II constables as well as the Superintendent of Jail, had deposed as departmental witnesses, who had been cross examined by the petitioner. Ultimately, the enquiry officer found that the charges framed against the petitioner had been proved. Based on which, the disciplinary authority, i.e., second respondent herein had inflicted the punishment of compulsory retirement, on the petitioner by order dated 04.05.2004. Aggrieved over the same, the petitioner had preferred appeal to the first respondent, who, in turn rejected the said appeal by confirming the order of the disciplinary authority, by his order dated 02.07.2004. Assailing both the orders, the petitioner has filed this writ petition with the aforesaid prayer.
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3. Heard Mr.K.Selvaraj, learned counsel appearing for the petitioner, who would point out that, there had been no such incident taken place on 16.09.2003. The allegation of the department was that, the petitioner picked up quarrel with one Elangovan, Grade-II constable, for his alleged refusal to change the para duty from 2.00 p.m. to 4.00 p.m. to 12.00 pm. to 2.00 p.m. on the said date. It was also the allegation that the petitioner was not in uniform and he was in civil dress. It was the further allegation of the department through the charge memo that, the petitioner used filthy language for abusing the said Elangovan and this was witnessed by three co-grade-II constables and also the Superintendent and in fact, the petitioner allegedly had been trying to beat the said Elangovan, which was amicably resolved by the said Superintendent.
4. In this context, the learned counsel for the petitioner had taken this Court, to the deposition of each of the departmental witnesses and the averments of the cross examination. The learned counsel pointed out that, P.W.1, by relying the complaint, merely had stated in the cross examination that, at the time of alleged occurrence no other departmental witnesses were present. However, it is the http://www.judis.nic.in 5 case of the department that, three other constables were present, who have been shown as prosecution witnesses as P.Ws. 2 to 4.
5. It was also pointed out by the learned counsel for the petitioner that, the P.W.3 in his cross examination had admitted that, he had in fact agreed to change the duty time between 2.00 p.m. to 4.00 p.m. from 12.00 p.m. to 2.00 p.m. which means that, 12.00 p.m. to 2.00p.m. para duty since was earmarked for P.Ws.3 and 4 and not for complainant. When this was subsequently admitted by P.W.3 in his cross examination, the very basis on the alleged reason for picking up quarrel with the said Elangovan by the petitioner, would not be possible. Apart from this contradiction in the enquiry, the learned counsel has also pointed out that, in respect of these contradictions, when the disciplinary authority awarded punishment of compulsory retirement on the petitioner and the same was appealed to the first respondent Appellate Authority, the first respondent Appellate Authority, in the order dated 02.07.2004 has not considered anything and has simply accepted the version of the disciplinary authority and rejected the appeal.
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6. In order to ascertain these aspects, the evidence given by the department witnesses had been perused. All the five witnesses on the side of the department had given evidence, however, the P.W.1, in his cross examination had stated that, no other departmental witnesses were available during the time of alleged occurrence. Therefore, it is a clear contradiction between the witnesses which could have been taken into account by the enquiry officer as well as the disciplinary authority. Be that as it may, when the issue was appealed before the Appellate Authority, since it is settled legal preposition, the Appellate Authority seems to have not applied his mind in proper perspective and decided the same, on its own merits, by taking into account the findings of the disciplinary authority. This procedure, in fact, has been contemplated under Rule 6 of the Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules, 1955 which reads thus:
"6(1) In the case of an appeal against an order imposing any penalty specified in rule 2, the appellate authority shall consider-
(a) whether the facts on which the order was based have been established;
(b) whether the facts established afford sufficient ground for taking action; and http://www.judis.nic.in 7
(c) whether the penalty is excessive, adequate or inadequate;
and after such consideration, shall pass orders-
(i) confirming, enhancing, reducing or setting aside the penalty; or
(ii) remitting the case, to the authority which imposed the penalty or to any other authority with such direction, as it may deem fit, in the circumstances of the case.
.........."
7. Here in the case in hand, admittedly, by order dated 02.07.2004, the Appellate Authority has passed the following order:
",th; rkh;gpj;j kD bjhlh;ghf rk;ge;jg;gl;l Mtz';fs; vd;dhy; ed;F ghprPyid bra;ag;gl;ld/ nky;KiwaPL kDtpy; g[jpa fUj;Jf;fs; VJk;
bjhptpf;ftpy;iy/ ,t;XG';F eltof;if neh;tpy; jz;lid tH';Fk; mYtyuhy; Kiwahf ghprPyid bra;ag;gl;L jz;lid tH';fg;gl;Ls;sJ/ neh;Kf tprhuizapy;
rhl;rpa';fspd; mog;gilapy; Fw;wr;rhl;L
epUgpf;fg;gl;Ls;sJ/ nky;KiwaPl;lhsUf;F
neh;Kf tprhuizapd; nghJ jdJ jug;gpy;
fUj;Jf;fs; Tw Kiwg;go nghjpa fhy mtfhrk;
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mspf;fg;gl;lJ/ Fw;wr;rhl;ow;F tH';fg;gl;l
jz;lid rhpahdjhFk;/ rPUilg; gzpahsh;fs;
Jiwapy; gzpahw;Wk; rPUilazpe;j mYtyh;
,t;thW xG';fPdkhd Kiwapy; ele;J bfhs;tJ
Kiway;y/ Vw;fdnt. jz;lid tH';fg;gl;ljpy; jiyaPL bra;a fhuz';fs; Vjkpy;iy/ vdnt. ,tuJ nky;KiwaPl;L kD jFjpapd;ikapd; fhuzj;jhy; epuhfhpj;J MizapLfpnwd;/"
8. On perusal of the said order passed by the Appellate Authority, this Court is of the view that, absolutely there had been no consideration on the side of the Appellate Authority on the merits of the issue, especially, as contemplated under Rule 6 referred to above.
9. Since the major punishment of compulsory retirement had been inflicted on the petitioner and the same had been appealed to the Appellate Authority, the said authority must have looked into the merits of the matter in proper perspective by examining the veracity of the charge, the evidentiary value as well as the conclusive decision of both the enquiry officer as well as the disciplinary authority and to justify whether the conclusion arrived by the disciplinary authority based on the enquiry report was justifiable based on the http://www.judis.nic.in 9 available materials. Such a procedure even though has been contemplated under the Rule as referred to above, the same seems to have not been adopted by the Appellate Authority, before passing the impugned order. Therefore, this Court is of the view that, the Appellate Authority's order can be very well be interfered with.
In the result, the following orders are passed in this Writ petition:
(i) The Appellate Authority's order which is impugned herein dated 02.07.2004 is hereby quashed and the matter is remitted back to the Appellate Authority, the first respondent herein for re-
consideration.
(ii) While making such re-consideration, the procedure contemplated under Rule 6 of the Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules, 1955 shall be scrupulously followed with proper reasoning and also the Appellate Authority must keep in mind that, the petitioner had rendered unblemished service of seven years for the department and the mere alleged reason on which the charge was framed against the petitioner for the alleged quarrel between the petitioner and the co-employee. Therefore, http://www.judis.nic.in 10 considering these aspects, the Appellate Authority can also take a decision to inflict some alternative punishment in commensurate with http://www.judis.nic.in 11 R.SURESH KUMAR, J.
smi the proven charge, if ultimately, the Appellate Authority decided to give the punishment. The aforesaid exercise shall be undertaken by the first respondent, Appellate Authority, within a period of two months, from the date of receipt of a copy of this order.
With this direction, this writ petition is ordered accordingly. No costs.
28.09.2018 Speaking Order/ Non-speaking Order smi To,
1.The Additional Director General of Prison Chennai - 8.
2.The Deputy Inspector General Prison in-charge of Sub Jail, Peramballur District, Trichy Range, Trichy.
W.P.No.22687 of 2004 http://www.judis.nic.in