R.Sakthivel vs The Director General Of Police on 13 August, 2010

[Cites 42, Cited by 2]

Madras High Court

R.Sakthivel vs The Director General Of Police on 13 August, 2010

Bench: S.Manikumar

       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 13/08/2010

CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR

Writ Petition (MD)No.10727 of 2006
M.P.(MD)Nos.1 to 3 of 2006

R.Sakthivel, (Sub-Inspector),
Nagamalai Pudukottai Police Station,
Madurai District.				... Petitioner

vs.

1.The Director General of Police,
   (Law and Order),
   Chennai-600 004.

2.The Additional Director General of Police,
   (Law and Order),
   Chennai-600 004.

3.The Deputy Inspector General of Police,
   Madurai Range,
   Madurai.

4.The Additional Superintendent of Police (Crime),
   Madurai, Madurai District.			  ... Respondents
				
PRAYER

Writ Petition under Article 226 of the Constitution of India praying
for issuance of a Writ of Certiorarified Mandamus to call for the records of the
first respondent made in his proceedings in Rc.No.2395/AP2(3)/2006, dated
17.02.2006, confirming the order of the second respondent made in his
proceedings Rc.No.98967/AP/2(2)/2005 dated 15.07.2005, confirming the order of
the third respondent made in his order No.A2/6953/03 PR 312/03 'F' order dated
11.01.2005 and quash the same and consequently, direct the respondents to
consider the petitioner for promotion for the next higher post from the date his
juniors were promoted.

!For Petitioner            ...  Mr.S.Karthik
		                For Mr.S.Silambanan
^For Respondents           ...  Mr.K.Balasubramanian,
			        Additional Government Pleader.

:ORDER

Following a departmental enquiry in P.R.No.312/2003, dated 11.01.2005 under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, the Deputy Inspector General of Police, Madurai Range, Madurai, passed an order dated 11.01.2005, imposing a punishment of postponement of increment for three years, which shall operate to postpone his future increments from the date of service of this order. The effect of the said order, if any on pension, was considered and intended. Aggrieved by the same, an appeal was preferred by the petitioner on 08.02.2005, before the Additional Director General of Police (Law and Order), Chennai, the second respondent herein and the same was rejected on 15.07.2005. The review petition dated 02.02.2006 made by the petitioner to the Director General of Police, Chennai, the first respondent herein was also rejected by order dated 17.02.2006. Challenging the above said orders, the petitioner has filed the present Writ Petition for a Writ of Certiorarified Mandamus to quash the same and consequently, direct the respondents to consider the petitioner for promotion to the next higher post from the date on which the petitioner's juniors were promoted.

2. The short facts leading to the Writ Petition are as follows:-

While the petitioner was working as Sub Inspector of Police, Nagamalai Pudukkottai Police Station, Madurai District, he was placed under suspension on 28.09.2003 based on a complaint dated 20.09.2003 given by one Mr.Rajapandi, an auto-rickshaw driver alleging that the petitioner, at 11.00 p.m., on 15.09.2003, sought for certain documents pertaining to his vehicle and since the complainant could not furnish the documents, his vehicle was retained in Chekkaroorani Police Station till the next day morning by 16.09.2003, without registering any criminal case, and that the petitioner had also demanded a sum of Rs.2,500/-

through police constables Murugan and Mr.Virumandi. It was further alleged that the petitioner had received a sum of Rs.1,500/- on the next day on 17.09.2003 and another sum of Rs.500/- through the constables. Departmental action has been taken in P.R.No.312/03 under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 by the Deputy Inspector General of Police, Madurai Range, Madurai, framing three charges against the petitioner and the other police constables. The Additional Superintendent of Police (Crime), Madurai District was appointed as an Enquiry Officer. Before the Enquiry Officer, the petitioner, in his explanation dated 27.02.2004, denied the allegations levelled in the charge memorandum and further, submitted that on 15.09.2003 he had checked vehicles in Chellampatti bus stop on Checkaroorani National Highways and at that time, finding that auto-rickshaw bearing Registration No.TN-58-B-3686 was driven without a valid driving licence, issued a police notice in No.084258 and further, directed the driver to produce the records relating to the said vehicle on the next day. It is the further explanation of the petitioner that on 17.09.2003, the offender produced the records pertaining to the vehicle. He has further contended that the police notice dated 15.09.2003, defence document No.1, was produced before the Enquiry Officer. In order to wreck vengeance on the petitioner and to transfer him out of Highways duty, the complainant Rajapandi and others have made a false complaint and that the Enquiry Officer has failed to advert to the explanation and erroneously came to the conclusion, on the basis of the statements said to have been given by the prosecution witnesses in the preliminary enquiry.

3. He has further submitted that the statements obtained during preliminary enquiry are not substantive evidence, as they were recorded behind his back and in the oral enquiry, if the witnesses do not say anything connecting the delinquent official with the charges, the said statements recorded during preliminary enquiry, cannot be the basis, to prove the charge.

4. It is the further contention of the writ petitioner that though he has specifically denied the alleged demand of any money, either directly or through the police constables, for not registering a case against Thiru.Rajapandi and though he has produced Ex.D.1 police notice and the charge sheet filed on the file of Checkaroorani Police Station petty case No.403/2003 under Section 3(1) r/w Section 181 of the Motor Vehicles Act and though the prosecution witness Thiru.Rajapandi had paid the fine amount in the Court of the learned Judicial Magistrate, Usilampatti in S.T.C.No.286/2004, the Enquiry Officer has erred in giving too much importance to the statements of the witnesses obtained during the preliminary enquiry report, even though the said witnesses have turned hostile in the regular departmental enquiry.

5. The petitioner has contended that the petitioner, there were three counts of charges, (i) not registering any case against the traffic offenders;

(ii) demand and acceptance of bribe from the offenders; and (iii) retention of a vehicle in Checkaroorani Police Station. According to him, motor vehicle petty cases have been registered against the offenders on 15.09.2003 and 17.09.2003 respectively and the police notices were also issued, consequent to the same, the offenders have pleaded guilty before the learned Judicial Magistrate, Usilampatti and, therefore, when the first count of the charge that the petitioner had not registered any criminal case against the offenders is not substantiated and whereas, the petitioner has proved that he had done his duty diligently, there is no question of proceeding further, to enquire as to whether there was any demand of money for not registering criminal cases. He has further submitted that though the witnesses have turned hostile, the Enquiry Officer, in a most biased and prejudiced manner, has arrived at the guilt of the petitioner, on surmises and conjectures, without any evidence, either oral or documentary to prove that the petitioner had received money from the police constables. According to him, the formulation of the charge itself is not grounded on any positive and tangible evidence and the conclusion arrived at by the Enquiry Officer, is purely based on suspicion.

6. Inviting the attention of this Court to the manner in which the appellate authority had mechanically and without due application of mind to the parameters set out in the Discipline and Appeal Rules for disposal of a statutory appeal against the penalty, the learned counsel for the petitioner submitted that there is a failure on the part of the appellate authority to exercise the discretion conferred on him, in proper manner.

7. Learned counsel for the petitioner further submitted that though right from the inception, the petitioner had been consistently pleading before the authorities that police notices were issued to the motor vehicle offenders and that they have also pleaded guilty and paid the fine, the explanation offered by the writ petitioner has not been considered in proper perspective and without adverting to the same, the disciplinary authorities have erred in accepting the pre-determined and biased findings recorded by the Enquiry Officer.

8. Inviting the attention of the judgment of the Judicial Magistrate No.1, Usilampatti, learned counsel for the petitioner further submitted that when the complainant, Rajapandi himself has come forward to admit his guilt of the commission of offences, under Section 3(1) 2(E) r/w. 181 of the Motor Vehicles Act in Cr.No.403 of 2003 and consequently, when the learned Judicial Magistrate in STC.No.288 of 2004, has imposed a fine of Rs.500/-, failing which, three weeks simple imprisonment, the allegation that the petitioner had not registered a case against the offender and demanded and received the bribe from him, are wholly illegal and contrary to the judgment.

9. Based on the counter affidavit filed by the Additional Superintendent of Police (Crime), Madurai, fourth respondent herein, learned special Government Pleader submitted that while the petitioner was serving in Highway Patrol No.IV, Chekkanurani, he was proceeded with the disciplinary proceedings in P.R.No.312/2003 under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, for following delinquencies,

(i) Highly reprehensible conduct in demanding Rs.2,500/- from Tr.Rajapandi, S/o.Mayandi, an Auto Driver, who parked his Auto TN 58 B 3686 at Chellampatti Auto Stand on 15.09.2003 at 23.00 hrs for not being in possession of original records of the auto while on Highway Patrol duty, accepting Rs.1500/- as bribe from him on 17.09.2003 morning through PCs 1107 Murugan and 1245 Virumandi of Highway Patrol Checkanurani and letting of the Auto without registering any case against the auto driver Tr.Rajapandi.

(ii) Reprehensible conduct in allowing PCs 1107 Murugan and 1245 Virumandi to demand and accept bribe of Rs.500/- on the night of 17.09.2003 from Tr.Rajapandi.

(iii) Illegally detaining the auto with registration No.TN 58 B 3686 in Checkanurani PS on 16.09.2003 to 17.09.2003."

10. Learned Special Government Pleader further submitted that the Deputy Inspector General of Police, Madurai Range, third respondent herein, was appointed as an enquiry officer and after considering the Prosecution evidence and documents, the Enquiry Officer held that charges as proved. The Disciplinary Authority, after perusal of the connected records, including the representation of the petitioner, found that the enquiry officer has rightly proved the delinquencies through Pws.3 and 4 and Exs.P1 to P7 and accordingly, held that the charges as proved. Considering the nature of charges, though stringent punishment ought to have been imposed, the Deputy Inspector General of Police, Madurai Range, Madurai, third respondent herein, taking into account, the age of the petitioner, awarded a lesser punishment of "Postponement of increment for three years which shall operate to postpone his future increments".

11. Learned Special Government Pleader further submitted that the Deputy Inspector General of Police, Madurai Range, third respondent herein, has applied his mind to the nature of charges, evidence recorded in the enquiry, but he has also considered the representation of the petitioner that he had issued a police notice on 15.09.2003, when he intercepted the vehicle. The said aspect has also been examined by the enquiry officer, fourth respondent that during the course of examination and that the complainant has categorically stated that no case was registered against him and the said fact has also been recorded in the finding.

12. Learned Special Government Pleader further submitted that though in the oral evidence Pws.1, 2 and 5 have turned hostile, on the basis of the statements made in the preliminary enquiry and on the strength of the version of Pws.3 and 4 and Exs.P1 to P7, the Enquiry Officer has drawn up a proved minute and after considering the connected records, the disciplinary authority has come to the conclusion that the petitioner has committed the delinquencies. It is his further contention that sufficient opportunity has been given to the petitioner in the oral enquiry and merely because, three prosecution witnesses have turned hostile, it cannot be contended that the petitioner has not committed the delinquencies. According to him, both the disciplinary and appellate authorities have exercised their discretion properly, while imposing the punishment.

13. Heard the learned counsel appearing for the parties and perused the materials1 available on record.

14. The charges levelled against the writ petitioner in P.R.No.312/2003 under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955,

(ii) Reprehensible conduct in allowing PCs 1107 Murugan and 1245 Virumandi to demand and accept bribe of Rs.500/- on the night of 17.09.2003 from Tr.Rajapandi.

(iii) Illegally detaining the auto with registration No.TN 58 B 3686 in Checkanurani PS on 16.09.2003 to 17.09.2003."

15. Before adverting to the facts of the case, this Court deems it fit to consider some of the judgments as to when this Court exercise the power of the judicial review and interfere in disciplinary matters, which involves the finding of fact recorded on the basis of evidence.

16. In Rajinder Kumar Kindra v. Delhi Administration reported in 1984 (4) SCC 635, the Supreme Court considered the correctness of the judgment of the Delhi High Court, wherein the High Court dismissed a Writ Petition, challenging the decision of an Arbitrator under Section 10-A (1) of the Industrial Disputes Act. One of the contentions raised before the Court was whether there is any perversity in the finding. Adverting to the said question, the Supreme Court, at Paragraphs17 and 18 held as follows:

"17. It is equally well-settled that where a quasi-judicial tribunal or arbitrator records findings based on no legal evidence and the findings are either his ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated. The industrial tribunal or the arbitrator or a quasi judicial authority can reject not only such findings but also the conclusion based on no legal evidence or if it is merely based on surmises and conjectures unrelated to evidence on the ground that they disclose total non-application of mind.

18. Between appraisal of evidence and total lack of evidence there is an appreciable difference which could never be lost-sight of and the High Court ought not to have short circuited the writ petition."

In the above reported case, the Supreme Court, at Paragraph 20, further held that, "20. Where the order of dismissal is sought to be sustained on a finding in the domestic enquiry which is shown to be perverse and the enquiry is vitiated as suffering from non-application of mind the only course open to us is to set it aside and consequently, relief of reinstatement must be granted."

17. In Narinder Mohan Arya v. United India Insurance Co. Ltd., reported in 2006 (4) SCC 713, the Supreme Court, while considering with the powers of the appellate authority, in disciplinary proceedings, held that while dealing with the employee's serious contentions, the appellate authority was bound to assign reasons, so as to enable the writ court to ascertain as to whether he had applied his mind to the relevant factors which the statute required him to do. While explaining the duty of the appellate authority to give reasons, the Supreme Court, at Paragraphs 33, 34, 35 and 36, held as follows:

"33. An appellate order if it is in agreement with that of the disciplinary authority may not be a speaking order but the authority passing the same must show that there had been proper application of mind on his part as regard the compliance of the requirements of law while exercising his jurisdiction under Rule 37 of the Rules.

34. In Apparel Export Promotion Council v. A.K.Chopra [(1999)I LLJ 962 SC] which has heavily been relied upon by Mr. Gupta, this Court stated:

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.(Emphasis Supplied)

35. The appellate authority, therefore, could not ignore to exercise the said power.

36. The order of the appellate authority demonstrates total non-

application of mind. The appellate authority, when the rules require application of mind on several factors and serious contentions have been raised, was bound to assign reasons so as enable the writ court to ascertain as to whether he had applied his mind to the relevant factors which the statute requires him to do. The expression 'consider' is of some significance. In the context of the rules, the appellate authority was required to see as to whether (i) the procedure laid down in the rules was complied with; (ii) the Enquiry Officer was justified in arriving at the finding that the delinquent officer was guilty of the misconduct alleged against him; and (iii) whether penalty imposed by the disciplinary authority was excessive."

18. While dealing with the revisional jurisdiction, at Paragraph 47, held that the revisional juridiction as is well known involves exercise of appellate jurisdiction. Reference was also placed on decisions in Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat reported in 1969 (2) SCC 74 and Nalakath Sainuddin v. Koorikadan Sulaiman reported in 2002 (6) SCC 1.

19. In Kuldeep Singh v. Commissioner of Police reported in 1999 (2) SCC 10, a police constable was dismissed from service after enquiry. He challenged the same, by way of an appeal. The order of dismissal was upheld. An application was moved before the Central Administrative Tribunal, Principal Bench, New Delhi and the said application was also dismissed. A writ petition was filed and that the same was dismissed, as not maintainable, as the judgment passed by the Tribunal was rendered before the date, on which the Apex Court considered a case in L.Chandra Kumar v. Union of India reported in 1997 (3) SCC

261. Therefore, the dismissed police constable filed a review petition. But the same was also dismissed. When the judgment was assailed before the Supreme Court, it was inter alia contended that the finding rendered by the enquiry officer, was perverse. Bias was also one of the contentions. On the power of the Courts to interfere with the findings recorded by the enquiry officer, the Supreme Court, at Paragraphs 6 to 10, held as follows:

"6. It is no doubt true that the High Court under Article 226 or this Court under Article 32 would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the Enquiry Officer as a matter of course. The Court cannot sit in appeal over those findings and assume the role of the Appellate Authority. But this does not mean that in no circumstance can the Court interfere. The power of judicial review available to the High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictate of the superior authority.

7. In Nand Kishore v. State of Bihar [(1978) II LLJ 84 SC], it was held that the disciplinary proceedings before a domestic Tribunal are of quasi- judicial character and, therefore, it is necessary that the Tribunal should arrive at its conclusions on the basis of some evidence, that is to say, such evidence which, and, that too, with some degree of definiteness, points to the guilt of the delinquent and does not leave the matter in a suspicious state as mere suspicion cannot take the place of proof even in domestic enquiries. If, therefore, there is no evidence to sustain the charges framed against the delinquent, he cannot be held to be guilty as in that event, the findings recorded by the Enquiry Officer would he perverse.

8. The findings, recorded in a domestic enquiry, can be characterised as perverse if it is shown that such a finding is not supported by any evidence on record or is not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of that evidence. This principle was laid down by this Court in State of Andhra Pradesh v. Sree Rama Rao [(1964) II LLJ 150 SC], in which the question was whether the High Court, under Article 226. This decision was followed in Central Bank of India v. Prakash Chand Jam. [(1969) II LLJ 377 SC] and Bharat Iron Works v. Bhaqubhai Balubai Patel [[1976] 2 SCR 280]. In Rajinder Kumar Kindra v. Delhi Administration through Secretary (Labour) [(1984) II LLJ 517 SC], it was laid down that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse. It was also laid down that where a quasi-judicial Tribunal records findings based on no legal evidence and the findings are his mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated.

9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt"

is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.

10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."

20. While dealing with the aspect of bias on the facts of the above case, the Supreme Court, at Paragraph 42, observed as follows:

"42. The Enquiry Officer did not sit with an open mind to hold an impartial domestic enquiry which is an essential component of the principles of natural justice as also that of "Reasonable Opportunity", contemplated by Article 311(2) of the Constitution. The "Bias" in favour of the Department had so badly affected the Enquiry Officer's whole faculty of reasoning that even non-production of the complainants was ascribed to the appellant which squarely was the fault of the Department. Once the Department knew that the labourers were employed somewhere in Devli Khanpur their presence could have been procured and they could have been produced before the Enquiry Officer to prove the charge framed against the appellant. He has acted so arbitrarily in the matter and has found the appellant guilty in such a coarse manner that it becomes apparent that he was merely carrying out the command from some superior officer who perhaps directed "fix him up"."

21. Reverting back to the case on hand, on the aspect of perversity in the findings recorded by the enquiry officer, learned counsel for the petitioner relied on a judgment of this Court in S.Subbiah Pandian v. Superintendent of Police, Tirunelveli reported in 2008 (7) MLJ 610. In the reported case, a police constable challenged the punishment of compulsory retirement on the ground inter alia that the evidence let in, in the enquiry did not relate to the charges levelled against him. Therefore, the finding was perverse and consequently, the disciplinary authority ought not to have imposed an extreme punishment of compulsory retirement. On the facts of the case, this Court held that, "Inasmuch as the proof of charges levelled against the petitioner as reflected in the findings have no legal evidence to support and eventually such findings cannot be relied upon, the impugned order of the respondent in having imposed the extreme punishment of compulsory retirement based on such defective finding cannot also be sustained."

22. In Roop Singh Negi v. Punjab National Bank reported in 2009 (3) SCC 934 (SC), a peon in a bank was dismissed from service, pursuant to a disciplinary proceedings, initiated against him. He was found guilty by the enquiry officer, relying on the purported confession made by him before the police authorities, in connection with the blank bank drafts. The appellate authority also concurred with the views of the disciplinary authority. As the challenge made by way of Writ Petition failed, he had approached the Supreme Court. On the role, as to how, an enquiry officer should proceed in the departmental enquiry, while arriving at a conclusion of misconduct, the Supreme Court, at Paragraph 10, held as follows:

"10. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the Enquiry Officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. Appellant being an employee of the bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the Enquiry Officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left."

23. In the above reported judgment, at Paragraph 17, the Supreme Court further held that, "A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."

24. Some of the decisions relied in Roop Singh Negi's case, are worth reproduction, "11. In Union of India v. H.S.Goel [(1964) I LLJ 38 SC], it was held:

...The two infirmities are separate and distinct though, conceivably, in some cases, both may be present. There may be cases of no evidence even where the Government is acting bona fide; the said infirmity may also exist where the Government is acting mala fide and in that case, the conclusion of the Government not supported by any evidence may be the result of mala fides, but that does not mean that if it is proved that there is no evidence to support the conclusion of the Government, a writ of certiorari will not issued without further proof of mala fides. That is why we are not prepared to accept the learned Attorney-General's argument that sine no mala fides are alleged against the appellant in the present case, no writ of certiorari can be issued in favour of the respondent.

That takes us to the merits of the respondent's contention that the conclusion of the appellant that the third charged framed against the respondent has been proved, is based on no evidence. The learned Attorney-General has stressed before us that in dealing with this question, we ought to bear in mind the fact that the appellant is acting with the determination to root out corruption, and so, if it is shown that the view taken by he appellant is a reasonably possible view, this Court should not sit in appeal over that decision and seek to decide whether this Court would have taken the same view or not. This contention is no doubt absolutely sound. The only test which we can legitimately apply in dealing with this part of the respondents case is, is there any evidence on which a finding can be made against the respondent that charge No. 3 was proved against him ? In exercising its jurisdiction under Article 226 on such a plea, the High Court cannot consider the question about the sufficiency or adequacy of evidence in support of a particular conclusion. That is a matter which is within the competence of the authority which dealt with the question; but the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charges in question is proved against the respondent ? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not. Applying this test, we are inclined to hold that the respondent's grievance is well-founded because, in our opinion, the finding which is implicit in the appellant's order dismissing the respondent that charge number 3 is proved against him is based on no evidence.

12. In Moni Shankar v. Union of India and Anr. [(2008) 3 SCC 484], this Court held:

17. The departmental proceeding is a quasi judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The Court exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely - preponderance of probability.

If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality.

13. In Narinder Mohan Arya v. United India Insurance Co. Ltd., reported in 2006 (4) SCC 713, whereupon both the learned Counsel relied upon, this Court held:

26. In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the Enquiry Officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it should keep in mind the following: (1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. [See State of Assam and Anr.

v. Mahendra Kumar Das and Ors. [[1971]1SCR87] (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice [See Khem Chand v. Union of India [(1963) I LLJ 665 SC] and State of Uttar Pradesh v. Om Prakash Gupta [AIR 1970 SC 679]. (3) Exercise of discretionary power involve two elements (i) Objective and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. [See K.L. Tripathi v. State Bank of India [(1984) I LLJ 2 SC]. (4) It is not possible to lay down any rigid rules of the principles of natural justice which depends on the facts and circumstances of each case but the concept of fair play in action is the basis. [See Sawai Singh v. State of Rajasthan [(1986) II LLJ 390 SC] (5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject matter of the charges is wholly illegal. [See Director (Inspection & quality Control) Export Inspection Council of India and Ors. v. Kalyan Kumar Mitra and Ors. 1987 (2) Cal. LJ 344. (6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. [See Central Bank of India Ltd. v. Prakash Chand Jain [(1969) II LLJ 377 SC], Kuldeep Singh v. Commissioner of Police [(1999) I LLJ 604 SC]. The judgment and decree passed against the respondent therein had attained finality.

In the said suit, the enquiry report in the disciplinary proceeding was considered, the same was held to have been based on no evidence. Appellant therein in the aforementioned situation filed a Writ Petition questioning the validity of the disciplinary proceeding, the same was dismissed. This Court held that when a crucial finding like forgery was arrived at on an evidence which is non est in the eye of the law, the civil court would have jurisdiction to interfere in the matter. This Court emphasized that a finding can be arrived at by the Enquiry Officer if there is some evidence on record. It was furthermore found that the order of the appellate authority suffered from non application of mind. This Court referred to its earlier decision in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., [(1999) I LLJ 1094 SC] to opine:

41. We may not be understood to have laid down a law that in all such circumstances the decision of the civil court or the criminal court would be binding on the disciplinary authorities as this Court in a large number of decisions points point that the same would depend upon other factors as well.

See e.g. Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh and Anr. [(2004) III LLJ 772 SC] and Manager, Reserve Bank of India Bangalore v. S.Mani and Ors. [(2005) II LLJ 258 SC]. Each case is, therefore, required to be considered on its own facts.

42. It is equally well settled that the power of judicial review would not be refused to be exercised by the High Court, although despite it would be lawful to do so. In Manager, Reserve Bank of India Bangalore (supra) this Court observed:

39. The findings of the learned Tribunal, as noticed hereinbefore, are wholly perverse. It apparently posed unto itself wrong questions. It placed onus of proof wrongly upon the appellant. Its decision is based upon irrelevant factors not germane for the purpose of arriving at a correct finding of fact. It has also failed to take into consideration the relevant factors. A case for judicial review, thus, was made out.

14. In that case also, the learned single judge proceeded on the basis that the disadvantages of an employer is that such acts are committed in secrecy and in conspiracy with the person affected by the accident, stating:

...No such finding has been arrived at even in the disciplinary proceedings nor any charge was made out as against the appellant in that behalf. He had no occasion to have his say thereupon. Indisputably, the writ court will bear in mind the distinction between some evidence or no evidence but the question which was required to be posed and necessary should have been as to whether some evidence adduced would lead to the conclusion as regard the guilt of the delinquent officer or not. The evidence adduced on behalf of the management must have nexus with the charges. The Enquiry Officer cannot base his findings on mere hypothesis. Mere ipso dixit on his part cannot be a substitute of evidence.

45. The findings of the learned Single Judge to the effect that 'it is established with the conscience (sic) of the Court reasonably formulated by an Enquiry Officer then in the eventuality' may not be fully correct inasmuch as the Court while exercising its power of judicial review should also apply its mind as to whether sufficient material had been brought on record to sustain the findings. The conscience of a court may not have much role to play. It is unfortunate that the learned Single Judge did not at all deliberate on the contentions raised by the appellant. Discussion on the materials available on record for the purpose of applying the legal principles was imperative. The Division Bench of the High Court also committed the same error.

15. Yet again in M.V. Bijlani v. Union of India and Ors. [(2006) II LLJ 800 SC], this Court held:

...Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.

16. Yet again in Jasbir Singh v. Punjab and Sind Bank and Ors., [(2007)1 SCC 566], this Court followed Narinder Mohan Arya v. United India Insurance Co. Ltd., (stated supra), stating:

12. In a case of this nature, therefore, the High Court should have applied its mind to the fact of the matter with reference to the materials brought on records. It failed so to do."

25. In Tamil Nadu Civil Supplies Corporation v. S.Sampath reported in 2005 (1) LW 795, a Division Bench of this Court, while testing the correctness of the order of recovery of pay from the suspended employee, alleged to have involved in causing shortage of paddy, held that the impugned order therein was only conclusions and did not contain any reasons. While saying so, the Division Bench has considered a decision made in Union of India v. M.L.Capoor reported in AIR 1974 SC 87, where the Apex Court has explained the difference between "reasons and conclusions". At paragraph 28, the Supreme Court in the above reported judgment, observed as follows:

"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable."

26. Yet another Constitutional Bench judgment of the Apex Court in S.N.Mukherjee v. Union of India reported in AIR 1990 SC 1984, was also considered by the Division Bench. In the above reported judgment, at Paragraph 35, the Supreme Court observed that recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making. It is not necessary that the reasons should be as elaborate like decision rendered by a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. However, what is necessary is that the reason should be clear and explicit, so as to indicate that the authority has given due consideration to the points in controversy.

27. On the aspect of perversity in recording the finding against the petitioner, learned counsel also relied on a decision of this Court in G.Ramakrishnan HC 262 v. Superintendent of Police reported in 2008 (6) MLJ 266, wherein, this Court, at Paragraph 29, held that, "I have no other alternative to come to the conclusion that the findings recorded by the disciplinary proceedings, which is confirmed by the appellate authority, are based on no evidence perverse, and legally untenable and therefore the punishment imposed by the authority has certainly resulted in miscarriage of justice. The appellate authority while observing that he has agreed with the finding of the oral enquiry officer as well as punishing authority has exhibited lack of application of mind, as the finding of both the authorities are entirely different, the enquiry officer exonerating the petitioner, and the disciplinary authority disagreed with the findings of the enquiry officer and imposed the penalty. Excepting to state that he has concurred with the findings, he has not adverted to any grounds made in the appeal. There must be some material to show that he has considered the facts are established, evidence recorded in the oral enquiry is sufficient or not. As the appellate authority is the final fact finding authority under the rules, and considering the limited scope of judicial review, he ought to examine the important factors to be considered in Rule 6 of the Tamil Nadu Police Subordinate Services (Discipline and Appeal Rules) 1955. The discretion exercised by the appellate authority should be reflected in the order. Mere making a statement that he had gone through the findings and minutes in the appeal petition and agreed with the finding does not satisfy the requirements of exercise of appeal jurisdiction."

28. Reverting back to the case on hand, Pws.1 to 5 have turned hostile. The question to be considered is whether the finding recorded by the enquiry officer is perverse. Hostile witnesses have stated that the documents have been prepared by the Police and that they have merely signed the same. PW.2, Head Constable, has deposed that as per the directions of his superiors, on 20.09.2003, he has signed the report, regarding the incident said to have occurred on 15.09.2003. According to him, the petitioner, Sub-Inspector of Police, intercepted the vehicle and demanded for the documents, pertaining to the vehicle. As the originals were not produced, he has directed the vehicle owner to produce originals for taking back the vehicle.

29. Perusal of the deposition of PW.4, does not indicate that the petitioner, Sub-Inspector of Police, has directly demanded or received any bribe amount from the complainant, Mr.Rajapandi, nor there is evidence to prove that he has instructed the Police Constables to receive money, on his behalf. PW.4, Head Constable in his discreet enquiry and report, has stated that two constables, viz., PCs 1107 Murugan and 1245 Virumandi, seemed to have demanded money for release of the vehicle. A criminal case has been registered against Mr.Rajapandi, on 15.09.2003 itself in Cr.No.403 of 2003 under Section 3(1) 2(E) r/w. 181 of the Motor Vehicles Act and the said Mr.Rajapandi, has also admitted his guilt, before the Judicial Magistrate in STC.No.288 of 2004, for which, he has been imposed a fine of Rs.500/- to be paid, failing which, he has been sentenced for simple imprisonment for three weeks.

30. Perusal of the enquiry officer's report shows that the evidence let in by the prosecution witnesses, to prove that the complainant had pledged his jewels for payment of bribe amount, was not supported by the oral evidence of PW.2, who turned hostile. Even PW.3, Deputy Superintendent of Police, who conducted the preliminary enquiry, during his cross-examination, has deposed that the complainant, Mr.Rajapandi, did not specifically say that he had paid any bribe amount to the petitioner, Sub Inspector of Police and that to ascertain as to whether the complainant's vehicle, bearing Registration No.TN 58 B 3686, was retained in the Police Station, Chekkanurani, he has not conducted any enquiry.

31. Perusal of his deposition recorded in the Minute also shows that PW.3 was not aware that on 15.09.2003, about 22.30 P.M., a case in Cr.No.403 of 2003 under Section 3(1) 2(E) r/w. 181 of the Motor Vehicles Act has been registered against the complainant, Rajapandi. During the cross-examination, he has also categorically deposed that he was not aware of Criminal Case Nos.434, 436 and 437 of 2003, registered under the Motor Vehicles Act against some of the Auto Drivers and that the Police Notices were given to them.

32. In the light of the above discussion in the Minute, the findings of the enquiry officer that there was a demand and acceptance of bribe amount from Thiru.Rajapandi, on 15.09.2003, through the police constables, without registering the criminal cases against the Auto Drivers, on the face of the records, is per se not supported by any legal evidence. As stated supra, none of the witnesses, including the complainant, Mr.Rajapandi, has stated that the Sub-Inspector of Police was demanded money for releasing the vehicle.

33. When criminal cases have been registered against the complainant and others on 15.09.2003, for violation of the provisions under the Motor Vehicles Act, as stated supra, the charge memorandum levelled against the petitioner that he has demanded and accepted bribe amount, without registering any case against the Auto Driver, Rajapandi, on 15.09.2003, is baseless and not substantiated by any legal evidence. Further, it is also to be noted that the enquiry officer has placed reliance on the statements obtained from the Prosecution Witnesses 1, 2 and 5 in the preliminary enquiry.

34. In this context, it is also useful to consider an unreported judgment of this Court in W.P.No.27019 of 2005, dated 15.02.2006, wherein the disciplinary authority accepted the report of the Enquiry Officer and imposed a punishment of reduction in pay by three stages for three years with cumulative effect, holding that all the prosecution witnesses narrated the incident at the time of preliminary enquiry, but turned hostile during oral enquiry. In the unreported judgment, Pws.1 to 4 disclaimed their earlier statements and turned hostile. The enquiry officer, solely relied on the said statements and held that the charges as proved. PW.5, Inspector of Police, allegedly recorded the statement of the complainant viz., PW.1. But, in the cross examination, PW.1 has categorically denied the role of the petitioner therein, stating that he did not demand or receive any money and no complaint or statement was made by her before the Inspector of Police, but she was directed to sign in a statement, without even disclosing the contents therein.

35. In the background of the above materials on record and relying on the decision of the Supreme Court in Union of India v.Mohd. Ibrahim reported in 2004 (10) SCC 87 and an unreported judgment of a Division Bench in W.P.Nos.29862 and 32581 of 2002, dated 22.02.2005 [The Deputy Inspector General of Police, Villupuram and others v. V.Vanniaperumal and others], a learned Single Judge of this Court has set aside the order of penalty of reduction in pay by three stages for three years with cumulative effect.

36. Paragraphs 6 and 8 of the above unreported Division Bench judgment in W.P.Nos.29862 and 32581 of 2002, dated 22.02.2005 [The Deputy Inspector General of Police, Villupuram and others v. V.Vanniaperumal and others], relied on by the learned Single Judge in the above unreported order, are worth reproduction for the preposition, as to whether, statements made in the preliminary enquiry can be relied on, when the prosecution witnesses turn hostile in the regular enquiry.

"6. We have carefully considered the relevant materials and the rival contentions. We have already referred to the charges levelled against the applicants. It is also relevant to note that apart from the applicants two more officers have also been implicated along with them. They are one Sattanathan, Sub-Inspector of Police and Antony, Inspector of Police. It is brought to our notice that Sattanathan is no more and so far as the other officer Antony is concerned lesser punishment has been imposed. Now we are concerned with the charges levelled against both the applicants. In the light of the conclusion arrived at by the Tribunal, we perused the finding of the Enquiry Officer. It is not in dispute that all the prosecution witnesses except PW.3 , who is none other than the Deputy Superintendent of Police, the other witnesses viz., P.Ws.1,2,4 and 5 turned hostile before the Enquiry Officer and not supported their earlier statement made at the preliminary enquiry. The Enquiry Officer having noted the above aspect curiously submitted a report holding that all the three charges levelled against them are proved based on the preliminary enquiry.

8. In our case, we have already referred to the fact that the prosecution witnesses viz., P.Ws.1,2,4 and 5 turned hostile and not supported their preliminary version. However, the Enquiry Officer basing reliance on their earlier statement in the preliminary enquiry found that all the charges levelled against them are proved. In the light of the decision of the Supreme Court referred to above, after fullfledged enquiry was held the preliminary enquiry had lost its importance. Further, we find no substance or material to arrive at a conclusion that "since all the three counts were proved by the prosecution beyond reasonable doubts, convincingly, I agree with the findings of the Enquiry Officer, ...". We are satisfied that there is no material to arrive at such a conclusion by the Deputy Inspector General of Police, while passing an order removing the applicants from service. All these aspects have been considered by the Tribunal in a proper manner and there is no acceptable material or evidence to take different view as that of the Tribunal. We find no merits in both the writ petitions. Accordingly, they are dismissed. No costs. Consequently, the connected miscellaneous petitions are dismissed." The said conclusion was arrived at by the Division Bench based on the decision of the Honourable Supreme Court reported in AIR 1997 SC 2148 (Narayana Dattatraya Ramteerthakhar v. State of Maharashtra)."

37. In Union of India v.Mohd. Ibrahim reported in 2004 (10) SCC 87, the Supreme Court held that, "the order of dismissal was vitiated, as the findings have been based on consideration of statement of the persons, examined during the preliminary enquiry and for the said fact, the Tribunal set aside the order of dismissal which was upheld by the High Court and there is no error in the said order setting aside the dismissal order."

38. Thus, it is the settled legal position that the statements made during the preliminary enquiry alone cannot be taken as the basis for arriving at the conclusion of delinquencies. The decisions of the Supreme Court in Union of India v.Mohd. Ibrahim reported in 2004 (10) SCC 87 and the two unreported decision are also applicable to the facts of this case.

39. On the aspect as to whether the Deputy Inspector General of Police, Madurai Range, Madurai, has applied his mind to the facts of this case, evidence let in and taken any independent decision to hold that the petitioner has committed the delinquencies and whether it is proved, during enquiry, by legal evidence whether the Disciplinary Authority has failed to discharge his statutory duties and considered the issue independently by passing an speaking order, it is necessary to extract the conclusions arrived at by the disciplinary authority. After considering the charge, the disciplinary authority has merely recorded the following:

"I have carefully gone through the minute and all the connected records including further representation of the accused officer. The enquiry officers have rightly proved the delinquencies, through the Pws.3 and 4 and Exhibits P1 to P7. I agree with the findings of the enquiry officer in holding the charge as proved. Considering the whole facts proved against the accused officer, he is awarded the punishment of "Postponement of increment for three years which shall operate to postpone his future increments" from the date of service of this orders. The effect of this orders, if any on pension is considered and intended."

40. As rightly contended by the learned counsel for the petitioner, absolutely, there is nothing on record to indicate application of mind by the third respondent, who is the disciplinary authority. Though the respondents in their counter affidavit have contended that the disciplinary authority, upon perusal of the records, including the further representation, has come to the conclusion of guilt of the petitioner, absolutely, there is no discussion, with reference to the explanation offered by the petitioner, as to whether there was any acceptable evidence, for the charge of demand of bribe against the petitioner/Sub Inspector of Police.

41. Except to state that the disciplinary authority has carefully gone through the further representation of the delinquent officer on the adverse findings recorded by the enquiry officer, there is no discussion or reason, as to why the explanation offered by the petitioner is not acceptable, when the petitioner has pointed out that there was no direct or indirect, legal and acceptable evidence, adduced against him by PW.1, complainant, either in his complaint or in the oral testimony let in before the enquiry officer. It is also to be noticed that PW.1 has turned hostile. Pws.3 and 4 are the preliminary enquiry officer and the Head Constable and that their reports were based on discreet enquiries. Even in the said report, he was not specific that the petitioner, Sub-Inspector of Police, himself demanded bribe amount for not registering the criminal case against the complainant, but as stated supra, a case has been registered on 15.09.2003, on the date, when there was patrol duty.

42. Perusal of the appellate order, dated 15.07.2005, the Director General of Police (Law and Order), Chennai, first respondent herein, shows that after briefly extracting the charge and the penalty, just in two lines, has rejected the appeal. Again, perusal of the order passed by the first respondent in the Review Petition shows that the reviewing authority has applied wrong principles of law, in concluding the guilt of the petitioner, soley relying on the statements obtained in the preliminary enquiry. The operative portion of the review order is extracted hereunder:

"I have gone through the review petition and other connected records carefully. Though the witnesses have turned hostile in the oral enquiry. I lay more faith on their statements made in the prelim enquiry. The delinquent has been rightly punished and I do not interfere with the punishment awarded. His review petition is considered and rejected."

43. Rule 6 of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules 1955 reads as follows:

"Rule 6 (i) 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

(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;

Provided that--

(a) if the enhanced penalty which the appellate authority proposed to impose is one of the penalties specified in clauses (d), (e)(3),(h) (i) and (j) of Rule 2 and an enquiry under sub-rule (b) of Rule 3 has not already been held in the case, the appellate authority shall, subject to the provisions, of sub-

rule (c) of Rule 3, itself hold such enquiry or direct that such enquiry be held in accordance with the provisions of sub-rule(b) of Rule 3 and thereafter on consideration of the proceedings of such enquiry and after giving the appellant a reasonable opportunity of making representation against the penalty proposal on the basis of the evidence adduced during such enquiry, make such order as it may deem fit.

(b) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties, specified in clauses (d), (e) (3), (h), (i) and

(j) of Rule 2 and an enquiry under sub-rule (b) of Rules 3 has already been held in the case, the appellate authority shall, after giving the appellant reasonable opportunity of making representation against the penalty proposed to be imposed on the basis of the evidence adduced during the enquiry, make such order as it may deem fit; and

(c) no order imposing an enhanced penalty shall be passed in any other case unless the appellant has been given a reasonable opportunity as far as may be in accordance with the provisions of sub-rule (b) of rule 3 of making representation against such enhanced penalty."

44. In Arokiadoss v. The Deputy Commissioner of Police, reported in 1989 Writ L.R. 274, this Court, while dealing with the powers of the appellate authority under Rule 6(1) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, at Paragraph 4, held as follows:

"the order of the appellate authority does not indicate, whether the appellate authority considered the materials on record in the light of Rule 6(1) of the Rules. He should have discussed the relevant evidence and found whether the facts on which the order of the disciplinary authority was based have been established. He should have also considered whether the facts afford sufficient ground for taking disciplinary action and whether the penalty is excessive, adequate or inadequate. As the order of the appellate authority does not show that he has considered the relevant matters prescribed under R.6(1) of the Rules, the order is vitiated."

45. A policeman was inflicted with a penalty of reduction in time scale of pay by three stages for three years with cumulative effect on the charges of insubordination of abusing his superior officer and acting in a manner of unbecoming a Government servant. The appellate authority dismissed his appeal without giving any reasons. When the order was tested by this Court, following the decision rendered in Arokiadoss 's case, a learned single Judge of this Court in K.Kandasamy v. Deputy I.G., of Police, reported in 2006 (4) MLJ 1382, at Paragraph 7, held as follows:

"It is seen from the aforesaid portion of the impugned order that the Appellate Authority did not deal with any of the grounds of appeal raised by the petitioner. A departmental appeal is a continuation of the original proceedings. It is needless to point out that the last opportunity available for a delinquent, to canvass his case on merits, is at the appellate stage. After the appeal, a delinquent loses his right to challenge any disciplinary proceedings on merits, since the scope of interference on a revision or on a writ petition is very limited. Therefore, the rules themselves contemplate Appellate Authorities to go into the factual details and consider all the grounds of appeal before deciding an appeal. Unfortunately, the first respondent has chosen to dismiss the appeal by a non-speaking order and hence the Appellate Authority's order is liable to be set aside."

46. Examining the scope of the appeal preferred under the Service Rules vis-a-vis substantive right of the delinquent officer, this Court in W.P.No.39741 of 2006, dated 12.06.2008, held that right of appeal is a substantive right and the appellate authority is the final fact finding authority and essentially an appeal is a continuation of the original proceedings. The appellate authority has to review the evidence subject to the statutory limitations in Rule 6 of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955. As judicial review under Article 226 of the Constitution of India is restricted to the decision making process and High Court cannot substitute the findings of the disciplinary or the appellate authority and interfere with the findings, except in the case of "perversity or no evidence", the delinquent, who has been inflicted with a penalty affecting his service conditions, has a statutory right to consider his appeal on law as well as on facts, subject to the parameters set out in Rule 6 of the above rules. The intention of the rule making authority is that the appellate authority has to pay attention to what has been said in the rule, so that the delinquent who has been inflicted with a penalty has the benefit of complete adjudication both on facts and law.

47. In N.Sivakumaran vs. State of Tamil Nadu rep. by the Secretary to Government, Chennai and others reported in (2009) 1 MLJ 701, this court held as follows:

"32. In the case of an appeal against the order of imposing any penalty under Rules 8 or 9, the appellate authority shall consider as to whether (1) the facts on which the order was passed have been established (2) the facts established offered sufficient ground for taking action and (3) the penalty is excessive, adequate or inadequate and passed orders confirming, enhancing, reducing or setting aside the penalty or committed remitting the case to the authority of which imposed the penalty, with such direction as it may be deemed fit in the circumstances of the case. Clause (ii) of Rule 23(1) states that any error or defect in the procedural violation in imposing penalty may be disregarded by the appellate authority if such authority considers for the reasons to be recorded in writing that the error or defect was not material and had neither caused injustice to the person concerned or affect the decision of the case. Powers of the appellate authority are circumscribed by a specific statutory provision which sets out the parameters to be examined by such authority. Unless the appellate authority examines the said aspects and assign brief reasons, mere extracting the views of the Tamil Nadu Public Service Commission does not satisfy the requirements of the statutory Rule and that would not amount to giving of reasons. Besides looking into the factual aspects, the appellate authority is also enjoined with the duty to examine whether there is any procedural defect or violation or error in imposing the penalty and Clause (ii) of Rule 23(1) and discard any error or defect or procedural violation in imposing the penalty, if the authority finds that such error or defect or violation is not material or injustice to the person concerned or affect the decision. A penalty suffered by a government servant affects his service and monetary benefits and casts a stigma in his career. It is well known that penalty suffered by a government servant is counted for promotional to higher posts. Right to consider for promotion has been recognised as a statutory right and therefore, when the authority is vested with the jurisdiction of testing the correctness of penalty, circumscribed by certain parameters, it is imperative that such authority has to scrupulously follow the parameters set out in the Rule. All the more, if the government servant is inflicted with a major penalty of removal or dismissal or compulsory retirement, whereby he is deprived of his right to earn through employment, the protection given under Article 311(2) of the Constitution of India, supported by statutory Rules, the procedure to be followed and the factors to be taken into account by the disciplinary and appellate authorities cannot be simply disregarded by such authorities to the detriment of the employee. The Supreme Court in Delhi Transport Corporation v. DTC, Mazdoor Congress AIR 1991 SC 101 : (1991) Supp 1 SCC 609: 1991-1-LJ-395, held that at p.459 of LLJ:

"The right to life includes right of livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy, income is the foundation of many fundamental rights and when work is the sole source of income, the right of work becomes as much fundamental as fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them. The right to public employment and its concomitant right to livelihood receive their succour and nourishment under the canopy of the protective umbrella of Articles 14 , 16(1),19(1)(g) and 21. Different articles in the chapter on Fundamental Rights and the Directive Principles in Part IV of the Constitution must be read as an integral and incorporeal whole with possible overlapping with the subject matter of what is to be protected by its various provisions particularly the Fundamental Rights. When the provisions of an Act or Regulations or Rules are assailed as arbitrary, unjust, unreasonable, unconstitutional, public law element makes it incumbent to consider the validity thereof on the anvil of interplay of Articles 14,16(1),19(1)(g) and 21 and of the inevitable effect of the impugned provisions on the rights of a citizen and to find whether they are constitutionally valid. The right to a public employment is a constitutional right under Article 16(1). All matters relating to employment include the right to continue in service till the employee reaches superannuation or his service is duly terminated in accordance with just, fair and reasonable procedure prescribed under the provisions of the Constitution or the Rules made under proviso to Article 309 of the Constitution or the statutory provision or the Rules, regulations or instructions having statutory flavour made thereunder. But the relevant provisions must be conformable to the rights guaranteed in Parts III and IV of the Constitution. Article 21 guarantees the right to live which includes right to livelihood, the deprivation thereof must be in accordance with the procedure prescribed by law conformable to the mandates of Articles 14 and 21 as to be fair, just and reasonable but not fanciful, oppressive or at vagary."

48. Now reverting back to the facts of this case, as rightly contended by the learned counsel for the petitioner, the appellate authority has failed to consider the parameters set out in the Discipline and Appeal Rules. The appellate order does not reflect application of mind to the above parameters. Hence,this court is of the considered view that there is a procedural violation in considering the statutory appeal.

49. Going through the minutes, pleadings and material on record, this Court is of the considered view that the finding recorded by the enquiry officer solely on the basis of the statements of prosecution witnesses 1, 2 and 5 recorded in the preliminary enquiry and on the strength of Pws.3 and 4, who were not direct witnesses, for either receipt or demand of bribe and other follies stated supra, the formation of the charges and the guilt of the petitioner, are not supported by any legal evidence and it is solely based on surmises and conjectures. There is total non-application of mind by the disciplinary as well as appellate authorities in arriving at the conclusion of guilt. As stated supra, when perversity is per se apparent in exercise of powers under the Judicial Review, this Court is of the opinion that there can be interference to the finding. In the aspect of non-consideration of the appeal in proper perspective, judgment relied on by the learned counsel for the petitioner are applicable to the facts of this case. For the reasons stated supra, this Court is of the view that the petitioner is bound to succeed on the issues raised by him. The impugned order is liable to be set aside and accordingly, set aside.

50. In the result, the Writ Petition is allowed. No costs.

skm To

1.The Director General of Police, (Law and Order), Chennai-600 004.

2.The Additional Director General of Police, (Law and Order), Chennai-600 004.

3.The Deputy Inspector General of Police, Madurai Range, Madurai.

4.The Additional Superintendent of Police (Crime), Madurai, Madurai District.

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