Madras High Court
P.Arumugam vs The Commissioner Of Police on 26 September, 2019
Bench: S.Manikumar, D.Krishnakumar
W.A.No.3233/2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.09.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
W.A.No.3233 of 2019
P.Arumugam ..Appellant
Vs
1.The Commissioner of Police
Salem City Police, Salem
2.The Deputy Commissioner of Police
Law and Order
Salem City Police
Salem ..Respondents
Writ Appeal filed under Clause 15 of Letters Patent, against the
order dated 23.10.2018 in W.P.No.22848 of 2012.
For Appellant : Mr.P.Kumaravel.
For respondents : Mr.P.S.Sivashanmuga Sundaram, Spl.G.P.
for R1 and R2.
JUDGMENT
(Judgment of the Court was made by S.MANIKUMAR,J.) Instant writ appeal is filed against the order made in 22848 of 2012 dated 23.10.2018, by which, writ court declined to grant any relief to the appellant.
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2. The appellant filed W.P.Nos.1820 and 22848 of 2012 with the following prayers:-
"Prayer in W.P.No.1820 of 2012:- Petition file praying to issue a writ of certiorarified mandamus, calling for the records relating to the orders in (1)P.R.No.44/H1/2009, dated 24.11.2010 of the second respondent and (2) Pro.C.No.Appl.14/H1/2010, dated 28.04.2011 of the first respondent, to quash the same and to issue consequential directions to the respondents to regularise the period of suspension from 15.06.2009 to 28.12.2009 as 'duty period' for all purposes with all consequential benefits.
Prayer in W.P.22848/2012:- Petition filed challenging the order of the 1st and 2nd respondents relating to (1) Proceedings C.No.Appl.01/H1/2012, dated 10.03.2012 and (2) PR.No.44/H1/2010, order dated 30.12.2011 respectively, to quash the same and to issue consequential directions to the respondents to regularise the period of suspension from 14.07.2010 to 10.03.2011 as 'duty' for all purposes and disburse consequential benefits with interest on arrears."
3. Before the Writ Court, learned counsel for the appellant argued that on the same set of charges, criminal case was registered against the appellant and the that learned Magistrate has found that the charges were not proved, however, without any supporting documentary evidence, the enquiry officer has rendered findings, holding the charges as proved. Hence, the punishment may be set aside. http://www.judis.nic.in 2/33 W.A.No.3233/2019
4. Adverting to the submissions of the learned counsel for the writ petitioner and the learned Government Advocate, who sought to sustain of the impugned orders, and after considering decision of the Honourable Supreme Court reported in 1972 (4) SCC 618 (Union of India Vs. Sardar Bhadur), learned Single Judge has observed that the appellant was given adequate opportunity and only based on evidence, the enquiry officer has held that charges held against the writ petitioner as proved for which, punishment was imposed. Holding so, the writ court, vide order dated 23.10.2018, dismissed the writ petition.
5. Being aggrieved, the appellant has raised grounds inter alia contending that the writ court ought to have seen that charges 1 and 2 relate to the same allegations, in the criminal case filed and that the third charge has been added as misconduct, so as to plead that the charges in the criminal case and departmental proceedings are not one and the same. According to him, even Charge No.3, is not incidental to the incidents to charges 1 and 2. Writ court has failed to consider the facts of the case, as projected by the appellant. Case relied on by the writ court, relates to initiation of departmental proceedings, after the judgment of acquittal, rendered in criminal proceedings, on the same charge. Writ court ought to have seen that while in the criminal case, the appellant had been acquitted on the ground that the charges levelled http://www.judis.nic.in 3/33 W.A.No.3233/2019 were not established and therefore, nothing survived in disciplinary proceedings and therefore, charges framed in the departmental proceedings ought to have been dropped. Writ court ought to have seen that both in the criminal case and in the departmental proceedings, the eyewitnesses to the incident have denied the alleged incident. Writ court has failed to consider that the alleged eyewitness have turned hostile, in the criminal case and that no effort was taken to cross examine them, and hence it is to be legally presumed that the prosecution story is false and baseless.
6. In addition to the above, inviting the attention of this court of the drunkenness certificate, Mr.P.Kumaravel, learned counsel for the appellant submitted that the signature of the appellant in the certificate is different. He submitted that after writing the appellant's name, his father's name has been wrongly given in the said drunkenness certificate and that therefore, the department has not proved that he was in the state of drunkenness.
7. Per contra, by producing the file pertaining to the departmental enquiry, Mr.P.S.Sivashanmuga Sundaram, learned Special Government Pleader, submitted that no sooner the appellant was found to have been in the state of drunkenness, he was taken to Casualty, Government http://www.judis.nic.in 4/33 W.A.No.3233/2019 Mohan Kumara Mangalam Hospital, Salem, and that on examination, he was found to have consumed alcohol and thus the drunkenness certificate was issued by the Doctor, which was duly marked in the enquiry proceedings.
8. Learned Special Government Pleader further submitted that adequate opportunity was given to the appellant, in the enquiry proceedings and that the writ court has adverted to all the grounds raised in the writ petition and ultimately found that the instant case falls within the principles of preponderance of probability. Learned Special Government Pleader prayed to dismiss the Writ Appeal.
9. Heard the learned counsel for the parties and perused the material available on record.
10. Charge Memo issued under Section 3(b) of the Tamil Nadu Police Subordinate Service (D&A) Rules, dated 11.11.2009, by the Deputy Commissioner of Police (Law & Order) Salem, reads thus:-
" Charge Memo issued under Rule 3(b) of the Tamil Nadu Police Subordinate Service (D&A) Rules.
PR.No.44/H1/2010 Office of the Deputy Commissioner Law and Order, Salem City
11.11.2009
1. The undersigned proposes to hold one inquiry against Thiru.P.Arumugam, P.C.Grade I No.1779, Police Control Room, Salem under Rule 3(b) of the Tamil Nadu Public Subordinate http://www.judis.nic.in 5/33 W.A.No.3233/2019 Service (Dicipline and Appeal) Rules, 1955. The substance of allegations, namely, the impugations of misconduct or misbehaviour in respect of which the inquiry is proposed to be held is set out in Annexure I. A statement of allegations namely, the imputations of misconduct or misbehaviour in support of each charge is enclosed in Annexure II. ...................
Charge No:1 That you have on 13.07.2010 at about 8.30 p.m., while coming in mufti in your two-wheeler – Hero Honda Glamour – Regn No.TN30 AA 9817 in a drunken mood, intercepted near V.M.K. Kalyana Mandapam, within Alagapuram Police Station Jurisdiction, Thiruy.K.Chandrasekaran, Thiru. M.Karthikeyan and Thiru.S.Vimal, coming in TVS 50 two-wheeler TN 27K 1436, and asked them in a disrespectful language to produce the licence and abused them in a public place in filthy language; that you were taken to Govt. Mohan Kumaramagalyam Medical College Hospital with Police Medical Memo No. HOS/80/B9 PS dated 13.07.2010 and you were examined by the Duty Medical Officer you had driven the two wheeler in drunken mood, being fully aware as a member of police force that it is an office and this is the first charge.
Charge No:2 That you have on 13.07.2010 at about 8.30 p.m., while coming in mufti in your two-wheeler – Hero Honda Glamour – Regn No. TN30 AA 9817 in a drunken mood, intercepted near V.M.G. Kalyana Mandapam, within Alagapuram Police Station Jurisdiction, Thiru.K.Chandrasekaran, Thiru.M.Karthikeyan and Thiru S.Vimal, who were coming in two wheeler TV 50 TN27 K 1436 and while you were serving in the Control Room and you indulged in unnecessary quarrel with them by using filthy language and in a manner unconnected with your duty asked them to produce the driving license and RC Book etc., and behaved in a public place in an improper manner thereby spoiling the reputation of the Police Department and this is the second charge.
Charge No:3 http://www.judis.nic.in 6/33 W.A.No.3233/2019 In pursuance of the above two charges, FIR was registered in Cr.No.617/2010 against you by Alagapuram P.S. U/s.341, 294(b) IPC and Section 4(1)(j) of the TN Prohibition Act, you were arrested errd released on bail on proper surety and subsequently on 14.07.2010 at about 9.52 p.m., you have contacted Thiru.S.Krishnan, Inspector of Polioce, Pudhupettai, in additional charge of Alagapuram P.S., over his mobile Phone No.9443215033 and notwithstanding that he is your superior abused him in filthy and disrespectful language and also threatened him and thereby tarnished the good name of Police Department and this is the third charge against you.
Sd. ________________ Deputy Commissioner of Police, Law and Order, Salem City Annexure II Statement of Allegations namely imputation of misconduct or behaviour in support of the charges framed against Thiru.P.Arumugam, P.C. Grade I, No.1779, Police Control Room, Salem City Charge No:1 That you have on 13.07.2010 at about 8.30 a.m., while coming in mufti in your two-wheeler – Hero Honda Glamour – Regn No.TN30 AA 9817 in a drunken mood, intercepted near V.M.K. Kalyana Mandapam, within Alagapuram Police Station Jurisdiction, Thiruy.K.Chandrasekaran, Thiru. M.Karthikeyan and Thiru.S.Vimal, coming in TVS 50 two-wheeler TN 27K 1436, and asked them in a disrespectful language to produce the licence and abused them in a public place in filthy language; that you were taken to Govt. Mohan Kumaramagalyam Medical College Hospital with Police Medical Memo No. HOS/80/B9 PS dated 13.07.2010 and you were examined by the Duty Medical Officer you had driven the two wheeler in drunken mood, being fully aware as a member of police force that it is an office and this http://www.judis.nic.in 7/33 W.A.No.3233/2019 is the first charge. Certificate of drunkenness was obtained in B-9 Alagapuram P.S. In Cr.No.617/2010, under Section 341, 294(b) IPC and Section 4(1)(j) of the TN Prohibition Act, and having been in police force and aware of the provision of law you had driven the vehicle in a drunken mood and this is first charge against you. Charge No:2 That you have on 13.07.2010 at about 8.30 p.m., while coming in mufti in your two-wheeler – Hero Honda Glamour – Regn No. TN30 AA 9817 in a drunken mood, intercepted near V.M.G. Kalyana Mandapam, within Alagapuram Police Station Jurisdiction, Thiru.K.Chandrasekaran, Thiru.M.Karthikeyan and Thiru S.Vimal, who were coming in TV 50 two wheeler TN27 K 1436 and while you were serving in the Control Room and you indulged in unnecessary quarrel with them by using filthy language and in a manner unconnected with your duty asked them to produce the driving license and RC Book etc., and behaved in a public place in an improper manner thereby spoiling the reputation of the Police Department and this is the second charge. Charge No:3 In pursuance of the above two charges, FIR was registered in Cr.No.617/2010 against you by Alagapuram P.S. U/s.341, 294(b) IPC and Section 4(1)(i) of the TN Prohibition Act, you were arrested and released on bail on proper surety and subsequently on 14.07.2010 at about 9.52 p.m., you have contacted Thiru.S.Krishnan, Inspector of Polioce, Pudhupettai, in additional charge of Alagapuram P.S., over his mobile Phone No.9443215033 and notwithstanding that he is your superior abused him in filthy and disrespectful language and also threatened him and thereby tarnished the good name of Police Department and this is the third charge against you.
Sd. ________________ Deputy Commissioner of Police, Law and Order, Salem City http://www.judis.nic.in 8/33 W.A.No.3233/2019 Annexure III List of Documents by which the charge framed against Thiru.R.Arumugam, P.C. Grade I, No.1779, Police Control Room, Salem City are proposed to be sustained
01) Copy of First Information Report in Cr.No.617/2010 under Section 341, 294(b) IPC and Section 4(1) (j) of the TN Prohibition Act, Alagapuram Police Station.
02) Arrest Memo Copy of B-9 Alagapuram P.S.Cr.No.617/2010 under Section 341, 294(b) IPC and Section 4(1) (j) of the TN Prohibition Act.
03) Medical Certificate in No.HOS/80/B9/P8 dated 13.07.2010 of Alagapuram P.S.
04) Certificate of Drunkenness issued by Govt.Mohan Kumaramangalam Medical College Hospital on 13.07.2010.
05) Extract from the Prisoner Checking Register relating to Cr.No.617/2010 U/S.341, 294(b) IPC and 4(1) (j) of the TN Prohibition Act.
06) Extract from the Para Register dated 13.07.2010 of B-9 Alagapuram P.S.
07) Bail based in Cr.No.617/2010 of Alagapuram Police Station under Section 341, 294 (b) IPC and Section 4(1) (j) of the TN Prohibition Act.
08) Extract from the General Diary of B-9 Alagapuam Police Station on 13.07.2010.
09) Statement of Thiru K.Chandrasekaran, Aged 26, S/O. Kalaiappan, G/384, Ambedkar Street, Kallangunthpudur, Salem-7, dated 14.07.2010.
10) Statement dated 14.07.2010 of Thiru M.Karthikeyan, Aged 28, S/o. Manickam, 314, Muniappan Koil Street, Chinnapanur, Salem -7.
11) Statement of Thiru S.Vimal; (aged 24), S/O. Sampath, 3/17, Ambedkar Street, Kallangotherpudur, Salem -7, dated 15.07.2010.
12) Statement of Thiru K.Govindan, Head Constable 937, Pullapatti P.S., Salem City dated 15.07.2010.
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13) Statement of Thiru P.Anbarasan, H.C. NO.943, B10, Pallapatti P.S., Salem City, dated 15.07.2010.
14) Statement of R.Ragupathy, Head Constable No.701, B10, Pallapatti P.S., Salem City, dated 15.07.2010.
15) Special Report of Thiru.S.Krishnan, Inspector of Police, B10, Pallapatti P.S., Salem City, dated 15.07.2010.
16) Preliminary Enquiry report of one Assistant Commissioner of Police (West), Law and Order, Salem City, dated 14.07.2010 and 15.07.2010.
17) Order of Suspension CPO NO.306/2010- Na.Ka.No.H1/16857/449/2010 dated 14.07.2010.
Sd. _______________ Deputy Commissiioner of Police, Law and Order, Salem City"
11. Enquiry has been conducted by the Deputy Commissioner of Police, Law and Order, Salem City. Perusal of files pertaining to the disciplinary proceedings in P.R.44/H1/2010 issued under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, shows that FIR has been registered against the appellant in Crime No.617/10 under Section 341, 294(b) IPC under Section 4(i)(j) of Tamil Nadu Prohibition Act, on the file of B-9 Alagapuram Police Station.
12. As stated supra, drunkenness certificate has been issued by Government Mohan Kumaramangalam Medical College Hospital.
Dr.M.Nirmala, Assistant Surgeon has been examined as P.W.5 and she has categorically deposed that the appellant was examined. Test has http://www.judis.nic.in 10/33 W.A.No.3233/2019 been conducted and that he was found to be in intoxication.
13. Appellant has appeared in the enquiry. Deposition of P.W.5/ Doctor examined in the oral enquiry and cross examination of the said witness proves that he was drunk. Chief and cross examination of Dr.M.Nirmala, Assistant Surgeon is reproduced.
"K/tp/:-
ehd; jw;nghJ nryk; muR kUj;Jtfy;Yhhp kUj;Jtkidapy; gzpg[hpe;J tUfpnwd;/ 13/7/2010k; njjp md;W Fonghijapy; cs;shh; vd;W rhd;wpjH; mspf;f nfRthof;F bknkh bfhz;L te;jhh; mth; bgah; MWKfk;/ mtiu ghh;j;jnghJ ghpnrhjid bra;jnghJ rhuha thil moj;jJ/ mjdhy; rhuhak; Foj;J ,Uf;fpwhh; vd;W rhd;wpjH; mth; kJit mUe;jpapUe;jhh;/ Mdhy; mth; kJ mUe;jpajpw;fhd Md kJ ghjpgg; [f;F cs;shfhky; ,Ue;jhh;/ mtUila uj;jj;ij ghpnrhjidf;F mDg;gntz;o ghud;rpf; nygul;ohp mDg;gp itf;fg;gl;lJ/ me;j ghpnrhjidapy; mth; Foj;J ,Ue;jhh;/ rhd;W mspj;njd;/ me;j rhd;W m/j/rh/M/2 MFk;/ nghyPrhh; vd;id tprhhpj;jhh;fs;/ F/tp/:-
MWKfk; j-bg/ uhkrhkp vd;gtiujhd; ghpnrhjid bra;jjhf Fwpg;gpl;Ls;nsd;. vd;why; rhpjhd;/ M$h; vjphpapd; mg;gh bgah; gHdpag;gd;/ vdnt jhd; ghpnrhjid bra;j MWKfk; j/bg/ uhkrhkp vjphp my;y vd;why; rhpay;y/ vjphp nghyPrhUld; te;jjhf ehd; Fwpg;gpltpy;iy vd;why; rhpay;y/ vjphpapd; rpWePiu ehd; jhd; mDg;gpa[sn; sd;/ uj;jk; ghpnrhjidf;F mDg;g[kn; ghJ thpir vz; Fwpff; ntz;Lk; vd;why; eh';fs; rhpahf rpWePh; mDg;gpajw;fhf vz; Fwpg;gpl;L mDg;gpa[s;nshk; vd;why; rhuhak; Foj;jjw;fhf rhd;wpjHpd; thpir vz; Fwpg;gpltpy;iy vd;why; vdf;F "hgfkpy;iy/ ehd; vjphpia ghpnrhjid bra;j njjpia Fwpg;gpltpy;iy vd;why; rhpjhd;/ ehd; rhuhak; Foj;jpUe;jhh; vd;W bfhLj;j rhd;wpjH;f;Fk; vjphpf;Fk; ve;j rk;ke;jKk; ,y;iy vd;why; rhpay;y/"
Sd/- Judicial Magistrate No.V SALEM.
14. P.W.10-Mr.S.Krishnan, Inspector of Police has adduced evidence to the fact that the appellant has used unparliamentary words and http://www.judis.nic.in 11/33 W.A.No.3233/2019 abused him. Evidence is reproduced.
"K/tp/ :- ehd; jw;nghJ gs;sg;gl;o fhty; Ma;thsuhf gzpg[hpe;J tUfpnwd;/ fle;j 13/07/2010 k; njjp bghWg;g[ Ma;thsuhf mHfhg[uk;
bghWg;gpy; ,Ue;jnghJ fh/cjtp Ma;thsh; kzpfz;ld; vd;gth; re;jpunrfh;
vd;gthplkpUe;J g[fhiu tHf;F gjpt[ bra;J Fw;w vz;/617-10 gphpt[ 341.
294 (gp) kw;Wk; 4 (1) (n$) ovd;gp Mf;lhf tHf;F gjpt[ bra;J. vd; ghh;itf;F itf;fg;gl;lij tprhuidf;F vLj;J bfhz;L mnj njjpapy; rk;gt ,lk; brd;W ghh;it kf$h;
kw;Wk; khjphp tiue;njd;/ ghh;it kf$h; mjrhM/ 5 kw;Wk; kh/tiuglk; mjrhM / 6 Mfk;/ gpd;dh; rhl;rpfshd re;jpunrfud;. _cwhpcWud;. ghujp.
fhh;j;jpnfad;. tpky; Mfpnahh;fis tprhhpj;J thf;FKPyk; gjpt[ bra;njd;/ gpwF vjphp MWKfj;ij ifJ epiya $hKdpy; tplg;gl;lJ/ gpd; tprhuidia fh/Ma;thsh;
rPdpthrd; mth;fs; Koe;J vjphp kPJ Fw;wg;gj;jphpf;if jhf;fs; bra;jhh;/ F/tp ,e;j tHf;fpy; khtl;l brashyh; fjph; uh$uj;jpdk; vd;gtiu tprhhpj;J ve;jtpj thf;FKPyKk; th';ftpy;iy vd;why; rhpjhd;/ xnu thfdj;jpd; 3 egh; te;jhy;
nghf;Ftuj;J tpjp kPuYf;fhd bray;jhd;/ Mdhy; mJ kPJ ve;j eltof;ifa[k;
vLf;ftpy;iy vd;why; rhpay;y/ Vbdd;why; mJ nghf;Ftuj;J Ma;thsh;
bra;antz;oaJ eh;d rk;gt ,lk; nghfhky; rhl;rpfis tprhhpf;fhky; vjphp kPJ bgha;ahd g[yd;tprhuid nkw;bfhz;nld; vd;why; rhpay;y/ m/rh/1 I ahh;
vd;nw vjphp bjhpahJ vd;why; rhpay;y/ ehd; vy;yh Mtz';fisa[k; fhty;
epiyaj;jpnyna itj;J jahhpj;njd; vd;why; rhpay;y/ vjphpf;Fk; tHf;fpw;Fk;
ve;jtpjkhd rk;ke;jKk; ,y;iy vd;why; rhpay;y/ "
During cross examination, the said prosecution witness No.10 has denied the suggestion of the appellant that there is no falsity in the investigation laid against the appellant.
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15. P.W.9 Mr.Manikandan, Sub Inspector of Police has adduced evidence stating that on receipt of a complaint against the appellant, he has registered case in Crime No.617/2010 under Sections 341, 294(b) IPC and 4(1)(j) of Tamil Nadu Prohibition Act and investigated the case.
16. Charges levelled against the appellant are:-
"jkpH;ehL fhty; rhh;epiyg; gzp (xG';F bewp kw;Wk; nky; KiwaPL) tpjpfspy; 3(M) tpjpapd; fPH; bgUe;jz;lidf;Fhpa Fw;w mwpf;if/ j/vz;/44 vr;-1/2010 fhty; Jiz Mizahsh;
rl;lk; kw;Wk; xG';F nryk; khefuk;
ehs; /11/2010/ jkpH;ehL fhty; rhh;epiyg; gzp (xG';F bewp kw;Wk; nky; KiwaPL) tpjpfspy; 1955 gphpt[ 3(M) tpjpapd; fPH; jpU/R.MWKfk;. K/ep/fh/1779.
fhty; fl;Lg;ghl;L miw nryk; khefuk; Mfpa j';fSf;bfjpuhd tprhuizbahd;W elj;Jtjw;F fPnH xg;gkpl;Ls;sth; cj;njrpj;Js;shh;/ FiwTwy;fspd; rhuk; mjhtJ.
jtwhd elj;ij my;yJ bewp jtwp elj;J bfhs;sy; gw;wp Rkj;jg;gl;Ls;s Fw;w';fspd;
kPJ elj;jg; bgwf; fUjpa[s;s tprhuiziag; gw;wp gpd; ,izg;g[ I y; milt[ bra;J jug;gl;Ls;sJ/ FiwTwy;fspd; ml;;ltizbahd;W mjhtJ jtwhd elj;ij my;yJ bewp jtwp ele;Jbfhs;sy; gw;wpr; Rkj;jg;gl;Ls;s Fw;w';fSf;F Mjhukhd xt;bthU Fw;wr;rhl;Lk; gpd; ,izg;g[ II y; ,izf;fg;gl;Ls;sd/ Rkj;jg;gl;Ls;s Fw;wr;rhl;Lfs;
tYthdit vdf; fUJtjw;Fhpa Mtz';fspd; gl;oabyhd;Wk;. rhd;W gfh;nthh;
tpgu';fs; ml';fpa gl;oabyhd;Wk; Kiwna gpd; ,izg;g[ III kw;Wk; gpd; ,izg;g[ IV Mfpatw;wpy; ,izf;fg;gl;Ls;sd/ njitbadf; fz;lwpag;gLk; ntbwe;j Mtz';fSk;
rhd;Wiu"h;fSk; tprhuiz eilbgWk; nghJ Muha;t[ bra;ag; bgWth;/ 2/ ,f;Fwpg;ghiz fpilf;fg; bgw;w 15 ehl;fSf;Fs; j';fspd; vGj;J Kykhd http://www.judis.nic.in 13/33 W.A.No.3233/2019 kWg;g[iuia mspg;gJld; tha;bkhHp tprhuizia my;yJ neuoahff;
nfl;lwpag;gLjiy my;yJ nkw;Fwpj;j ,U tHpKiwfisa[k; jh';fs; tpUk;g[fpwPh;fsh vd;gij bjhptpf;FkhW jpU/Mh;/MWKfk;. K/ep/fh/1779. fhty; fl;Lg;ghl;L miw.
Nryk; khefuk; Mfpa jh';fs; gzpf;fg;bgWfpwPh;fs;/ vjph;tjhjj;jpw;Fhpa vGj;J K:ykhd kWg;gwpf;ifahdJ. eph;zapf;fg;gl;l fhyj;jpw;Fs; fpilf;fg;
bgwtpy;iybadpy;. jh';fs; mspg;gjw;F kWg;g[iu VJkpy;iybadf; fUjp nkw;bfhz;L eltof;if bjhlug;gLk;/ 3/ jh';fshy; Vw;Wf;bfhs;sg;glhj mj;jifa Fw;wr;rhl;Lfs; bjhlh;gpy;
tha;bkhHpahd tprhuizbahd;W eilbgWbkd;Wk;. tha;bkhHpahd rhd;W gfh;tJ kl;Lk; nfl;lwpag;gLbkd;Wk;. jh';fs; mwptpf;fg;bgWfpwPh;fs;/ Mifapdhy; jh';fs; xt;bthU Fw;wr;rhl;ila[k; Fwpg;ghf Vw;Wf;bfhs;snth my;yJ kWf;fnth ntz;Lk;
4/ nkYk;. vGj;J K:ykhd j';fspd; kWg;gwpf;ifia nkny 2 tJ gj;jpapy;
Fwpg;gplg;bgw;w ehspnyh my;yJ mjw;F Kd;dnuh mspf;fg;bgwhtpoy;
my;yJ tprhuiz bra;a[k; mjpfhhpapd; Kd; nehpy; tUif juhtpoy; my;yJ gpw tifapy; jtwpd; my;yJ jkpH;ehL fhty; rhh;epiy gzp (xG';F bewp kw;Wk;
nky;KiwaPL) tpjpfs; 1955 gphpt[ 3 (M) tpjpapd; tHptiffSf;F my;yJ nkw;Twpa tpjpia gpd;gw;wp btspaplg;bgw;w Mtz';fSf;F my;yJ fl;lisfSf;F ,z';f kWg;gpd; tprhuiz mjpfhhp j';fSf;bfjpuhd xU Twh epiy tprhuizia nkw;bfhs;thbud jpU/Mh;/MWKfk;. K/ep/fh/1779 fhty; fl;Lg;ghl;L miw. nryk;
khefuk; Mfpa j';fSf;F mwpt[Wj;jg;gLfpwJ/ 5/ 1964k; Mz;L jkpH;ehL fhty; rhh;epiyg; gzpahsh; ed;dlj;ij tpjpfspd; tpjp 22f;F jpU/Mh;/MWKfk;. K/ep/fh/1779. fhty; fl;Lg;ghl;L miw. nryk; khefuk;
Mfpa j';fspd; ftdk; <h;f;fg;gLfpwJ/ ,t;tpjpapd; fPH; muRg; gzpahsh; vtUk;
murpd; fPH; j';fspd; muRg; gzp bjhlh;gpyhd bghUz;ikfs; Fwpj;Jg;
gad;bgWfpd;w tifapy; ahuhtbjhU cah; mjpfhhpaplk;. Murpay; my;yJ btspr;bry;thf;F vija[k; rhh;e;jjhff; bfhz;L tunth my;yJ bfhz;Ltu Kaw;rpf;fnth http://www.judis.nic.in 14/33 W.A.No.3233/2019 TlhJ/ ,e;j eltof;iffspy; ngzg;gLk; VnjDbkhU bghUs; bjhlh;ghf j';fs; bghUl;L vtnuDbkhUthplkpUe;Jk; rhh;ghd KiwaPL VjhtJ bgwg;god;. mj;jifa rhh;t[ KiwaPL Fwpj;J jpU/R.MWKfk;. K/epfh/1779. fhty; fl;Lg;ghl;L miw. nryk;
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Mfpnahh;fis HERO HONDA GLAMOUR. TN 30 AA 9817 vd;w gjpt[ vz; bfhz;l ,Urf;fu thfdj;jpy; rhuhuz cilapy; Fonghijapy; ,Ue;j ePh; tHp kwpj;J mth;fsplk; iybrd;!; v';flh? Mh;/rp/g[f; vLuh ? vd bghJ ,lj;jpy; Mghrkhf jpl;o tha;jfuhW bra;Jk;. ,J rk;ke;jkhf ck;kPJ B-9, mHfhg[uk; fhty; epiya kUj;Jt eKdh vz;/ HOS/80/B9-PS. ehs;.13/07/2010 d; go ck;ik muR nkhfd; Fkhuk';fyk; kUj;Jtf; fy;Yhhp kUj;Jtkidapy; mg;nghJ mYtypy; ,Ue;j kUj;Jt mYtyhplk; Fonghijr;rhd;W bgwg;gl;Ls;sJ/ fhty; Jiwapy; gzpahw;wp bfhz;L rl;lj;ijg;gw;wp bjhpe;j http://www.judis.nic.in 15/33 W.A.No.3233/2019 ePh; Fonghijapy; thfdj;ij Xl;oa brany ck;kPjhd Kjy; Fw;wr;rhl;L MFk;/ Fw;wr;rhl;L -2.
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Mfpnahh;fis HERO HONDA GLAMOUR. TN 30 AA 9817 vd;w gjpt[ vz; bfhz;l ,Urf;fu thfdj;jpy; rhuhuz cilapy; Fonghijapy; ,Ue;j ePh; tHp kwpj;J ckf;F (fhty; fl;Lg;ghl;L miwapy; gzpg[hpa[k;) rk;ke;jnk ,y;yhky;
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"nkw;fz;l ,uz;L Fw;wr;rhl;Lfspd; bjhlh;r;rpahf ck;kPJ B-9 mHfhg[uk;
fhty; epiyak; Fw;w vz;/617/2010 rl;lg;gphpt[ 341, 294(b) IPC & 4(I)(J) TNP Act Kjy; jfty; mwpf;if gjpt[ bra;ag;gl;L fhty; gLj;jpa[k;. jf;f gpizaj;jpy; tpLtpf;fg;gl;l eP;h; 14/07/2010 k; njjp ,ut[ 09/52 kzpf;F gs;sg;gl;o fhty; epiya Ma;thsh; (bghWg;g[ mHfhg[uk; fhty; epiyak;) jpU/S/fpUc&;zd; mth;fspd; miyngrp be/94432?15033 t[ld; bjhlh;g[ bfhz;L jdJ nky; mjpfhhp vd;Wk; ghuhky; mrp';fkhd jfhj thh;j;ijfshy; jpl;oa[k;.
kpul;ly; tpLj;j xG';fPdkhd kw;Wk; fhty; Jiwapd; ew;bgaUf;F fs';fk;
tpistpf;Fk; brany ck;kPjhd K:d;whtJ Fw;wr;rhl;L MFk;/ fhty; Jiz Mizahsh;.
rl;lk; kw;wk; XG';F. nryk; khefuk;/ gpd; ,izg;g[ - II http://www.judis.nic.in 16/33 W.A.No.3233/2019 jpU/R.MWKfk;. K/ep/fh/1779. fhty; fl;Lg;ghl;L miw. nryk; khehfuk;
Mfpa j';fSf;F vjpuhfr; Rkj;jt[s;s Fw;wr;rhl;ow;F Mjhukhd mjhtJ. jtwhd elj;ij my;yJ bewp jtwp ele;J bfhs;Sjy; gw;wpa FiwTwy;fspd; tptu mwpf;if / Fw;wr;rhl;L ?1.
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Mfpnahh;fis HERO HONDA GLAMOUR. TN-30 AA-9817 vd;w gjpt[ vz; bfhz;l ,Urf;fu thfdj;jpy; rhuhuz cilapy; Fonghijapy; ,Ue;j ePh; tHp kwpj;J mth;fsplk; iybrd;!; v';flh? Mh;/rp/g[f; vLuh ? vd bghJ ,lj;jpy; Mghrkhf jpl;o tha;jfuhW bra;Jk;. ,J rk;ke;jkhf ck;kPJ B-9, mHfhg[uk; fhty; epiya kUj;Jt eKdh vz;/HOS/80/B9-P8, ehs; 13/07/2010?d; go ck;ik muR nkhfd; Fkhuk';fyk; kUj;Jtf; fy;Y}hp kUj;Jtkidapy; mg;nghJ mYtypy; ,Ue;j kUj;Jt mYtyhplk; Fonghijr;rhd;W bgw;W ck;kPJ B-9 mHfhg[uk; fhty;
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bghJ ,lj;jpy; mth;fsplk; iybrd;!; v';flh? Mh;/rp/g[f; vLuh? vdg; bghJ ,lj;jpy;
Mghrkhf jpl;o tha;jfuhW bra;J fhty; Jiwapd; ed;kjpg;gpw;F fs';fk; http://www.judis.nic.in 17/33 W.A.No.3233/2019 Vw;gLj;jpa brany ck;kPjhd ,uz;lhtJ Fw;wr;rhl;L MFk;/ Fw;wr;rhl;L ?3.
"nkw;fz;l ,uz;L Fw;wr;rhl;Lfspd; bjhlh;r;rpahf ck;kPJ B-9 mHfhg[uk;
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rl;lk; kw;wk; XG';F. nryk; khefuk;/"
Going through the material on record, we find that there is sufficient evidence for the Enquiry Officer-Deputy Commissioner of Police, Law and Order, Salem City, to arrive at the finding that the appellant was guilty of the three charges levelled against him.
17. Based on the findings of the Enquiry Officer, viz., the Disciplinary Authority, Law and Order, Salem, Respondent No.2, vide order dated 30.12.2011, has imposed punishment of postponement of increment for one year with cumulative effect. Being aggrieved, writ http://www.judis.nic.in 18/33 W.A.No.3233/2019 petitioner has preferred an appeal on 20.01.2012 claiming that he has been acquitted by judgment dated 16.11.2010 by the learned Judicial Magistrate No.5, Salem, in the criminal case registered under Section 341, 294(b) IPC and 4(1)(j) of the Tamil Nadu Prohibition Act.
18. Though various grounds have been raised in the present appeal, learned counsel for the appellant submitted that use of unparliamentary words against the private witnesses has not been proved, and considering the nature of charges levelled against the appellant, in the departmental enquiry and the findings of the Enquiry Officer, vide order dated 30.12.2011 passed by the Deputy Commissioner of Police, City Salem Police, considering the grounds raised, the appellate authority/Commissioner of Police, Salem City, Salem, ought to have interfered with the findings.
19. On the aspect of acquittal in criminal case and findings recorded in the departmental proceedings, let us consider few cases:-
(i) The principles underlined in Capt M. Paul Anthony v. Bharat Gold Mines Ltd. and another, reported in 1999 (3) SCC 679, at Paragraph 22, are extracted hereunder:
http://www.judis.nic.in 19/33 W.A.No.3233/2019 "(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the Departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest."
http://www.judis.nic.in 20/33 W.A.No.3233/2019
(ii) In Ajay Kumar Nag v. G.M.(PJ) Indian Oil Corporation Ltd., reported in 2005 (7) SCC 764, wherein the Hon'ble Supreme Court has explained the relative scope of departmental enquiry and criminal trial, the objectives, procedure and proof which is required in the proceedings before the Criminal Court and domestic enquiry, "11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused “beyond reasonable doubt”, he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be http://www.judis.nic.in 21/33 W.A.No.3233/2019 imposed on the delinquent officer on a finding recorded on the basis of “preponderance of probability”."
(iii) Legal position has been made clear by the Hon'ble Supreme Court in the decision reported in 2004 (7) Supreme Court Cases 27 [State Bank of India and others v. R.B.Sharma]. In paragraph 8, the Supreme Court held as follows:-
"8.The purpose of departmental enquiry and of prosecution are two different and distinct aspects. Criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act, 1872 (in short "the Evidence Act"). Converse is the case of http://www.judis.nic.in 22/33 W.A.No.3233/2019 departmental enquiry. The enquiry in a departmental proceeding relates to conduct or breach of duty of the delinquent officer, to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances."
(iv). The above said principle has been reiterated in a subsequent decision reported in 2005 (10) Supreme Court Cases 471 [Hindustan Petroleum Corporation Ltd., and others v. Sarvesh Berry].
(v). After considering a catena of decisions of the Hon'ble Supreme Court, a Division Bench of this Court in the Superintending Engineer, Chennai Electrical Distribution Circle, Tamil Nadu Electricity Board, Valluvarkottam, Chennai-600 034 and another v.
N.Rangaraj reported in 2009(3) MLJ 833, at Paragraph 14, held as follows:
"It is trite law that the purpose of departmental enquiry is to adjudge the government servant/employee's conduct under the relevant conduct or discipline and appeal rules and to maintain discipline and efficiency in Public service, whereas a criminal http://www.judis.nic.in 23/33 W.A.No.3233/2019 prosecution is launched for an offence for violation of public duty which he owes, or for breach of law, which entails punishment provided under the penal laws. It is also well settled that the standard of proof to hold a person guilty of offence, is based on strict evidence, as prosecution has to be prove the case beyond all reasonable doubt and what is required in departmental enquiry, is preponderance of probability. In view of the difference and distinction, the principles of law laid down by the Supreme Court in the above referred cases, when applied to the facts of the present case do not warrant deferment of departmental proceedings till the conclusion of the criminal case registered against the respondent. In view of the above, the contention of the respondent that his defence would be exposed cannot be countenanced."
20. The attempt on the part of the writ petitioner to assail the finding by re-appreciating the evidence and testing its adequacy, for arriving at a conclusion of guilt, is untenable in view of the settled position that the High Court sitting in Article 226 of Constitution of India cannot re-appreciate the evidence, except to the extent to find out as to whether there is any perversity and the finding recorded in a disciplinary proceedings cannot be interfered, unless it is shown to be a case of no evidence. Now let we consider some of the decisions of the Supreme Court as to whether, the Tribunal/Court can re-appreciate the evidence and set aside the penalty on the ground of insufficiency of evidence to prove charges and the scope of the Judicial Review.
(i). In Government of T.N. v. A.Rajapandian reported in 1995 (1) SCC 216, the Supreme Court, while considering the above issue, in Paragraphs 9 and 10, held as follows:
"9. This Court in Union Of India v. Sardar Bahadur reported in 1972(4) SCC 618, held as under:
http://www.judis.nic.in 24/33 W.A.No.3233/2019 "A disciplinary proceeding is not a criminal trial. The standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the inference that Nand Kumar was a person beyond reasonable doubt. If the inference that Nand Kumar was a person likely to have official dealings, with the respondent was one which reasonable person would draw from the proved facts of the case, the High Court cannot sit as a Court of appeal over a decision based on it. Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion exercising its jurisdiction under Article 226 to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held the question of adequacy of reliability of the evidence cannot be canvassed before the High Court."
10. In Union of India v. Parma Nanda reported in 1989 (2) SCC 177, this Court observed as under:
"We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that http://www.judis.nic.in 25/33 W.A.No.3233/2019 of the authority."
(ii) In Rae Bareli Kshetriya Gramin Bank v. Bhola Nath Singh and others reported in 1997 (3) SCC 657, the Supreme Court at Paragraph 6 of the judgment, answered a question as to whether the High Court would be correct in law to appreciate the evidence, the manner in which the evidence was recorded and record a finding in that behalf. The Court held as follows:
"The judicial review is not akin to adjudication of the case on merits as an appellate authority. The High Court, in the proceedings under Article 226 does not act as an appellate authority but exercises within the limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice."
(iii) The Supreme Court in Commissioner and Secretary to the Government v. C.Shanmugam, reported in 1998(2) SCC 394, considered the case of compulsory retirement, which was interfered by the Tribunal on the ground of absence of evidence. The Apex Court, after dealing with the various judgments on the point and held that only in the absence of any evidence, i.e., no evidence or if there was any perversity, the Court can interfere. At Paragraph 2 of the judgment, the Supreme Court held as follows:
"It is seen from the order of the Tribunal that at the regular departmental enquiry held, the employees who were present at the time of the incident in the office on 02.08.1980 were examined and they all supported the charges (misbehaviour with the superior officer) levelled against the respondent/delinquent. The Tribunal on a re-appreciation of evidence, in judicial review, was of the view that the enquiry report based on such evidence cannot be totally accepted as free from bias and an order passed on such reports cannot be accepted as a fair and just one. Assailing this view of the http://www.judis.nic.in 26/33 W.A.No.3233/2019 Tribunal, the learned counsel appearing for the appellants brought to our notice three judgments of this Court reported as State of T.N.v. Subramaniam, Govt. Of T.N. v. A.Rajapandian and State of Haryana v. Rattan Singh. In State of T.N. v. Suibramaniam, a three-Judge Bench of this Court observed as follows: (SCC.pp.511- 12, para 5) "The only question is: Whether the Tribunal was right in its conclusion to appreciate the evidence to reach its own finding that the charge has not been proved. The Tribunal is not a Court of appeal. The power of judicial review of the High Court under Article 226 of the Constitution of India was taken away by the power under Article 323-A and invested the same in the Tribunal by the Central Administrative Tribunals Act. It is settled law that the Tribunal has only power of judicial review of the administrative action of the appellant on complaints relating to service conditions of employees. It is the exclusive domain of the disciplinary authority to consider the evidence on record and to record the findings whether the charge has been proved or not. It is equally settled law that technical rules of evidence have no application for the disciplinary proceedings and the authority is to consider the material on record. In judicial review, it is settled law that the Court or the Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the view of the Court or Tribunal. When the conclusion reached by the authority is based on evidence, Tribunal is devoid of power to re- appreciate the evidence and would (sic) come to its own conclusions on the proof of the charge. The only consideration the http://www.judis.nic.in 27/33 W.A.No.3233/2019 Court/Tribunal has in its judicial review is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence."
(iv) In Apparel Export Promotion Council v. A.K.Chopra reported in 1999 (1) SCC 759, the Supreme Court at Paragraphs 16 and 17 held as follows:
"16. The High Court appears to have overlooked 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 also 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 inadequacy 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 he 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 is concerned, unless the 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 Single Judge and the Division Bench of the High Court, it appears, ignored the well-settled principle that even though http://www.judis.nic.in 28/33 W.A.No.3233/2019 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 the 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 by which the decision was arrived at. Judicial review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. Lord Hailsham in Chief Constable of the North Wales Police v. Evans reported in 1982 (3) ALL. ER 141 HL observed:
"The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorised or enjoined by law to decide for itself, a conclusion which is correct in the eyes of the Court."
"17. Judicial review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the Court, while exercising the power of judicial review, must remain conscious of the fact that if the decision has been arrived at by the administrative authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the Court cannot substitute its judgment for that of the administrative authority on a matter which fell squarely within the sphere of jurisdiction of that authority."
(v) The above position was reiterated in Commandant v. D.Paul reported in 1999 SCC (L&S) 789, and at Paragraphs 4 and 5 of the judgment, the Supreme Court held as follows:
http://www.judis.nic.in 29/33 W.A.No.3233/2019 "4. .........It is not the function of the Tribunal to review the decision and to arrive at an independent finding on the evidence and that if there be some legal evidence on which the findings can be based, the adequacy or the reliability of that evidence is not a matter which can be permitted to be canvassed before the Tribunal."
"5. ............ It is settled law that the Tribunal, while exercising its power of judicial review in respect of disciplinary action taken against the a government servant, cannot re-appreciate the evidence adduced to prove the charges in the disciplinary proceedings."
(vi) In High Court of Judicature at Bombay v. Shashikant S. Patil reported in 2000 (1) SCC 416, while considering the scope of Judicial Review of the decision of the Disciplinary Authority in exercise of powers under Article 226 of the Constitution of India, the Apex Court at Paragraph 16, held as follows:
"16. The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by consideration extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee http://www.judis.nic.in 30/33 W.A.No.3233/2019 of the High Court is the sole judge of the facts, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a Writ Petition filed under Article 226 of the Constitution."
(vii) In State of A.P. v. S.Sree Rama Rao reported in AIR 1963 SC 1723, the Supreme Court, considering the scope of the Judicial Review, held that, "The High Court is not constituted in a proceeding under Article 226 of the Constitution as a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Whether there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a Writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence."
(viii) The above position was once again reiterated by the Supreme Court in Sub-Divisional Officer, Konch v. Maharaj Singh reported in 2003(9) SCC 191. In Paragraph 5 of the judgment, the Court held as follows, "It has been stated by this Court on a number of occasion that the jurisdiction of the High Court under Article 226 is a supervisory one and not an appellate one, and as such the Court would not be justified in re-appreciating the evidence adduced in a disciplinary proceeding to alter the findings of the enquiring authority." http://www.judis.nic.in 31/33 W.A.No.3233/2019
20. In the light of the above decisions, we are of the view that on the ground that the appellant was acquitted in a criminal case in C.C.No.489/2010 on the file of Judicial Magistrate Court No.5, Salem, for the offence under sections 341, 294 IPC and Section 4(i)(j) Tamil Nadu Prohibition Act, he cannot seek for quashing of the charges, framed against him, since,/ based on the findings of the Enquiry Officer in the departmental proceedings, and consequently, the punishment imposed, on the principles of preponderance of probability.
21. In the light of the above discussion and decisions considered by us, there is absolutely no case warranting interference with the order of the writ court. Writ Appeal is dismissed. No costs.
(S.M.K.,J.) (D.K.K.J.)
26.09.2019
Index:Yes
Internet:Yes
nvsri
To
1.The Commissioner of Police
Salem City Police, Salem
2.The Deputy Commissioner of Police
Law and Order
Salem City Police, Salem.
http://www.judis.nic.in
32/33
W.A.No.3233/2019
S.MANIKUMAR,J..
AND
D.KRISHNAKUMAR, J.
nvsri
W.A.No.3233 of 2019
26.09.2019
http://www.judis.nic.in
33/33