Madras High Court
P.Shanmugam vs The Deputy Inspector General on 3 September, 2012
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03/09/2012 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P(MD)No.3633 of 2007 and M.P.(MD).No.2 of 2007 P.Shanmugam .. Petitioner Vs. 1.The Deputy Inspector General of Police, Tiruchirappalli Range, Tiruchirappalli District. 2.The Superintendent of Police, Karur District, Karur. .. Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari, calling for the records relating to the impugned order passed by the 1st respondent in his proceedings C.No.B2/AP.05/2006, dated 14.02.2006, quash the same as illegal. !For petitioner ... Mr.Mohammed Imran, for M/s.Ajmal Associates. ^For respondents ... Mr.T.S.Mohammed Mohideen Addl. Government Pleader :ORDER
Challenge in this writ petition is to an order, dated 14.02.2006, of the Deputy Inspector General of Police, Tiruchirappalli Range, Tiruchirappalli District, modifying the punishment of dismissal into that of reduction in time scale of pay by three stages for three years, which shall operate to postpone future increments for three years.
2. Pleadings disclose that the petitioner was issued with a charge memo, dated 29.07.2005, by the Superintendent of Police, Karur District, alleging that on 10.07.2005, he had gone to Thondukalipalayam, accompanied by one Rajkumar, Constable and threatened one Duraisamy, a retired teacher and another, alleging gambling and that the petitioner and another constable had received Rs.900/- as bribe for not arresting them. The petitioner has submitted his explanation, rebutting the charges. According to him, he did not go to Thondukalipalayam as alleged, but, he had gone to Kulandaipalayam and Karvili Villages. Relevant General Diary entries were made in the Station Register. Not satisfied with the explanation, the Superintendent of Police, Karur District, Karur, appointed the Additional Superintendent of Police (Prohibition), Karur District, as the enquiry officer to enquire into the charges. According to the petitioner, during the said enquiry, witnesses have not identified the petitioner. The witnesses examined during the preliminary enquiry did not depose anything against the petitioner, alleging that he had received any bribe amount.
3. It is also the case of the petitioner that though he had let in defence evidence by examining two witnesses to prove that he had been to Kulandaipalayam and Karvili villages only and also pleaded alibi, neither the enquiry officer nor the disciplinary authority has adverted to the defence put forth by the petitioner and recorded any findings on that aspect. In the above circumstances, it is the contention of the petitioner that the finding recorded by the enquiry officer is perverse.
4. Taking this Court through the explanation, oral testimony of the witnesses and placing reliance on the decision of this Court in R.Sakthivel Vs. The Director General of Police, reported in 2011 (2) CWC 53 and Union of Indian and others Vs. Gyan Chand Chattar, reported in (2009) 12 Supreme Court Cases 78, Mr.Mohammed Imran, learned counsel for the petitioner submitted that in the case of charge of corruption, the probe should be beyond any shadow of doubt and that it cannot be proved by mere probability. Since in the case of corruption, a charged official is liable to be prosecuted and also liable for grave penalty, the findings cannot be recorded without any strong evidence.
5. Learned counsel for the petitioner submitted that when the private witnesses have not spoken anything against the petitioner during the regular enquiry, both the disciplinary as well as appellate authorities have erred in giving importance to the statements obtained during the preliminary enquiry and on that basis, have erroneously held the charge as proved.
6. According to the learned counsel, the findings recorded on the above basis and without considering the defence put up by the petitioner as regards alibi, have to be treated as perverse and in the said circumstances, the impugned order requires interference.
7. He submitted that no opportunity was given to the petitioner to rebut the allegations at the stage of preliminary enquiry and therefore, there is a violation of principles of natural justice. He submitted that the Deputy Inspector General of Police, Tiruchirapalli Range, Tiruchirapalli District, the first respondent herein has not adverted to the relevant factors contained in Rule 6 of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules and that therefore, the appellate order is non-speaking. For the abovesaid reasons, he prayed for interference.
8. Per contra, on the basis of the counter affidavit filed by the Superintendent of Police, Karur, the second respondent herein, Mr.T.S.Mohammed Mohideen, learned Additional Government Pleader submitted that the petitioner, Head Constable 1294, Shanmugam was working as a Station Writer, Thennilai Police Station, Karur District and on 10.07.2005, at 13.30 hours, he was in-charge-of the Police Station General Diary and as per the G.D. entries, on receipt of an information about gambling at Kulandaipalayam and Karvili villages, the petitioner had made entries in the General Diary, and handed over the General Diary to Sentry Head Constable 482 and left the Police Station, along with another PC 677, without any permission from the Superior Officers. He has not informed this fact even to the Sub Inspector of Police. Thereafter, the petitioner has visited Thondukalipalayam Village, along with PC 677, Rajkumar of Thennilai Police Station and threatened one Duraisamy, a retired Teacher and one Ramasamy, a land broker, alleging that they were involved in gambling and directed them to come to the Police Station. When they prayed that they belong to respectful families, both the Policemen have demanded Rs.1000/- for not arresting them. Due to fear and threat, Mr.Duraisamy, after receiving Rs.700/- from one Renganathan, paid Rs.900/- and that both the petitioner, as well as the Police Constable 677, Rajkumar have received the said amount as bribe.
9. He further submitted that on information about the conduct of the petitioner and another constable, a preliminary enquiry was conducted by the Additional Superintendent of Police (Crime), Karur District, as per PSO 73. Statements have been recorded during the preliminary enquiry and thereafter, a regular departmental enquiry was ordered under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules 1955. A charge memo, dated 29.07.2005, was served on the petitioner. On the aspect that the prosecution witnesses 4, 5 & 6 have turned hostile, during the regular enquiry and not let in any evidence incriminating the petitioner, learned Additional Government Pleader submitted that during the preliminary enquiry, the same witnesses have identified the petitioner and Police Constable and that they have also stated that they would identify them in future also. The statements given by the witnesses were not under duress and PW4, Duraisamy, a retired teacher, was well aware of that. The petitioner, an Head Constable, and the Police Constable had gone to the certain villages on their own without prior permission of the Sub Inspector of Police and made entries in the G.D., as if they had gone to Kulandaipalayam and Karvili villages for investigation on receipt of information of gambling, but the Policemen have gone to Thondukalipalayam Village also and threatened Duraisamy, a retired teacher and one Ramasamy and received bribe.
10. Taking this Court through the oral testimony of witnesses in the enquiry, learned State counsel submitted that there was no total denial of any such incident in the village, but the witnesses only retracted their statements, stating that identity was mistakenly given under intoxication and tension. Learned counsel for the State further submitted that co-delinquent PC 677, Rajkumar had admitted the misconduct of having received the bribe and similar to that of the petitioner, the dismissal imposed on him, was subsequently, modified on appeal, into that of reduction in time scale of pay by three stages for three years which shall operate to postpone future increments for three years. In the above said circumstances, he submitted that going through the evidence, explanation of the petitioner, on the principles of preponderance of probabilities, the enquiry Officer has rightly come to the conclusion that the petitioner and another Police Constable 677 have visited Thondukalipalayam village and received bribe.
11. On the aspect of alibi pleaded by the petitioner, learned State counsel submitted that self-serving entries in the General Diary and the evidence of defence witnesses, would not help the case of the petitioner, when there is a positive evidence of even the identity of Policemen, during the preliminary enquiry before the Additional Superintendent of Police.
12. According to him, the version of the Additional Superintendent of Police and other supporting evidences, based on which the findings of the disciplinary authority, cannot be discarded. He submitted that on the principles of preponderance of probabilities, there is absolutely no motive for the witnesses to come on record and depose against the two policemen, alleging receipt of bribe.
13. Distinguishing the judgment made in the case of R.Sakthivel, reported in 2011 (2) CWC 53, learned Additional Government Pleader submitted that in the above case, the witnesses, during cross examination have denied the role of the petitioner therein stating that there was no statement or receipt of any money and that no complaint or statement was made by the witnesses before the Inspector of Police. Whereas, in the case on hand, inviting the attention of this Court to the enquiry officer report, learned counsel for the State submitted that earlier, the Policemen, particularly, PC 677 was identified by the witnesses, but during the cross examination on 11.07.2005, PW5 had retracted his version stating that he had wrongly identified the delinquent, as he had consumed liquor. In the above said circumstances, he submitted that the decision relied on by the learned counsel for the petitioner cannot be strictly applicable to the facts of this case.
14. Distinguishing the judgment in Union of India and others Vs. Gyan Chand Chattar case, reported in 2009(2) SCC 78, the State counsel submitted that in the above judgment enquiry officer had not examined any witness from whom the said demand of bribe was made and that finding was on a probable inference and hearsay evidence and in such circumstances, the Supreme Court observed that a serious charges of corruption required to be proved to the hilt, as it involves civil and criminal consequences upon the employee concerned and that therefore, in the above case, it was held that since the charge was a criminal nature, it was required to be proved without any shadow of doubt and not on mere probabilities. On the aspect of proportionality, learned counsel for the state submitted that punishment is commensurate with charges.
15. Refuting the arguments that the appellate authority has passed a non- speaking order, learned counsel for the State submitted that the appellate authority need not rewrite a fresh order like a judgment and it is suffice that there is an indication in the appellate order to the consideration of the facts leading to the charge, explanation, finding recorded by the enquiry officer. He also submitted that the impugned order reflects consideration to parameters set out under the discipline and appeal rules and that therefore, it cannot be said to be a laconic order, warranting any interference.
16. Heard the learned counsel for the parties and perused the materials available on record.
17. The charge leveled against the petitioner in Rc.No.65/A4/2005, dated 29.07.2005, is as follows;
"Whereas on 10.07.2005 you (Mr.P.Shanmugam, HC 1294), along with Police Constable 677, Rajkumar, went to Thondukalipalayam, within the jurisdiction limit of Thennilai Police Station, on your own and purposefully threatened Mr.Duraisamy, retired teacher and Mr.Ramasamy, land broker, saying that they played gambling and asked them to come to the Police Station and when they cringed that they belong to respectful family, you demanded them to pay Rs.1000/- for not coming to the Police Station and thereafter, received Rs.900/- from Mr.Duraisamy, which he paid by taking Rs.700/- from one Mr.Ranganathan and Rs.200/- from his pocket, as bribe and left them off and this illegal act of obtaining bribe has brought bad name to the Police Department and the same is condemnable."
18.Perusal of the charge memorandum shows that the disciplinary authority had intended to examine 7 witnesses, including the Additional Superintendent of Police (Crime), Karur District, the preliminary enquiry officer. Statement of 7 witnesses were sought to be marked. General Diary entry, dated 10.07.2005, of Thennimalai Police Station has been marked as Ex.P1. The petitioner has examined two defence witnesses. During the preliminary enquiry, PW1 Head Constable has deposed that the petitioner himself has written the General Diary entries to the effect that he was going for a visit in Kulanthaikulam and Karvili villages and handed over the General Diary to him. PW3, Sub Inspector of Police, Thennilai Police Station, has categorically deposed that he did not depute the Head Constable viz., the petitioner and PC 677 to the abovesaid villages or to Thondkalipalayam village. Nor the said policemen had brought to the notice of PW3 that they had been to certain villages, on receipt of an information of gambling.
19. PW4 and PW5 are the private witnesses, examined by the department. During the preliminary enquiry, PW5 has deposed that on 10.07.1995 two persons in mufti came to Thondukapalayam village and informed them that the police had information of gambling and that the Inspector of Police, Thennilai Police Station had directed the Policemen to bring them to the Police Station. They were scared and sought for indulgence and at that time, two policemen in an intimidating manner demanded Rs.1000/- as bribe. Apprehending that their reputation would be at stake, if they were to be taken to the Police Station in the presence of public, a sum of Rs.900/- was given to the petitioner and another Police Constable.
20. During the preliminary enquiry, PW4 has also deposed that the petitioner and another constable came in a vehicle and then, went away. On 11.07.2005 at 5.00 p.m. the Additional Superintendent of Police, had gone to Thondukalipalayam village and conducted a preliminary enquiry. The witnesses have also admitted that statements were recorded in Thennimalai Police Station. During the preliminary enquiry, PW4 has also categorically deposed that he knew the petitioner as well as Police Constable 677. However, during regular enquiry the said witness had retracted their statements stating that nobody came to Thondukalipalayam Village and he had not paid money to any body. Statement of PW4 has been marked as Ex.P5. During cross examination, PW4 has stated that on 11.07.2005, when two policemen were shown to him, he had identified them under tension. PW5 has also let in evidence on the same lines. When PW4 has deposed that wrong identification was due to headache, giddiness and tension, PW5 has deposed that he had identified the delinquents, when he was under the influence of liquor. PW6, another witness, who had retracted the statement recorded by the Additional Superintendent of Police, during cross examination has stated that he was under tension, when he identified the two policemen. All the three witnesses have deposed that some other persons under the guise of Police have received the amount. Thus, one thing is clear from their version that during preliminary enquiry, they have identified the Policemen, who had received the bribe amount, but the reason assigned in the oral enquiry was that such identification was under tension or due to intoxication. When the witnesses have given statements in the presence of an Additional Superintendent of Police, in the Police Station, it is hard to believe that one was under intoxication and the others were under tension or giddiness and hence, have wrongly identified the Policemen.
21. PW7, Additional Superintendent of Police and the preliminary enquiry officer has deposed that when he was ordered to conduct a preliminary enquiry on 11.07.2005, he had visited Thondukalipalayam village and that he had examined PW4, Duraisamy, a retired teacher, RW5, Ramasamy, house broker and PW6, Renganathan, PW3, the Sub Inspector of Police Thennilai Police Station and PWs.1 & 2, head constables. It is his categorical evidence that the Police Constable 677 and the petitioner had gone to Thondukalipalayam Village and under threat, had demanded and accepted Rs.900/-. The Additional Superintendent of Police has categorically deposed that the witnesses have given statements incriminating the petitioner and the other Policeman and that a report Ex.P8 had been filed. In the oral enquiry the petitioner has not chosen to cross-examine PW3 & PW7 viz., the Sub Inspector of Police, and the Additional Superintendent of Police, Preliminary enquiry officer, respectively. No motive can be attributed to the Police officers. Had there not be any information about the misconduct of receipt of bribe, there is absolutely no necessity for an officer of an higher rank viz., Additional Superintendent of Police, (Crime), Karur District, to visit a village to ascertain the details of corrupt activities. The witnesses have also identified PC 677, Rajkumar and that they have also deposed that the co-delinquent was a writer of Thennilai Police Station.
22. As rightly contended by the learned counsel for the State, the defence witnesses have only deposed that the petitioner had visited Kulandaikulam and Karvili villages, and they cannot depose as to whether the petitioner and the other constable have visited Thondukalipalayam village or not. Their statements would not lend any support to prove that the petitioner and another constable had not gone to Thondukalipalayam Village, at all. The enquiry officer has categorically analysed the pros and cons of the evidence and held that the charge as proved. Merely because the petitioner has noted only two villages in the General Diary, that does not mean that he had not visited Thondukalipalayam village and demanded and accepted the bribe. Alibi as pleaded by the petitioner, cannot be accepted, just because he has not made any entries in the G.D. The entries are written only by him. When one of the co-delinquent PC 677 has accepted the penalty, for having indulged in such corrupt practice, that itself would prove receipt of bribe. It is to be noted that both of them have visited the villages.
23. There is no necessity for an Additional Superintendent of Police, Karur District, to conduct any preliminary enquiry, if the incident was totally without any basis. As rightly contended that though the witnesses PW4 & PW5 have retracted their statements, made during the preliminary enquiry, they have not denied any such incident. According to them, two persons under the pretext of Policemen had received Rs.900/- from them and that the witnesses claimed that they were either under influence of alcohol or tension and mistakenly identified the petitioner and other Police Constable 677. When the witnesses have admitted the incident, identified the Policemen, during preliminary enquiry, but retracted their statements made during the preliminary enquiry, and when the statements of other witnesses, particularly, the Additional Superintendent of Police corroborates examination of the witnesses, the finding recorded by the enquiry officer cannot be said to be perverse. Perversity means that no reasonable person would come to such a conclusion, of guilt on the material available on record.
24. In the case on hand, immediately after the incident on 11.07.2005, all the private witnesses have categorically deposed that the petitioner and another Police Constable 677, Rajkumar had come to Thondukalipalayam village and threatened the witnesses, PW4 & PW5 and received a sum of Rs.900/-. Statements have also been recorded. PW6, Ranganathan, has also deposed that two men had come to Thondukalipalayam village. The Additional Superintendent of Police himself had gone to the village. PW3 the Sub Inspector of Police has deposed that the fact that the petitioner and another police constable visiting Thondukalipalayam village was not brought to his notice at all. It could be seen, by writing General Diary entry, the petitioner and another constable had gone out of the Police Station on his own.
25. As regards standard of proof and adequacy of evidence required in a disciplinary proceedings, the Supreme Court in the following judgments has held as follows;
(i) in Union of India v. Sardar Bahadur reported in 1972 (4) SCC 618, held as follows:
"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 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 that the officer is guilty, it is not the function of the High Court 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 or reliability of the evidence cannot be canvassed before the High Court."
(ii) In Brij Nandan Kansal v. State of U.P., reported in 1988 Supp SCC 761, the Supreme Court held as follows:
"7. The above observations of the Legal Remembrancer clearly indicate that he was of the opinion that the Tribunal had limited jurisdiction in reconsidering the findings recorded by it earlier against the appellant. He proceeded on the assumption that the Tribunal had no authority to reappraise the evidence or to enter into sufficiency or adequacy of evidence while considering the question whether charges stood proved against the appellant on the evidence on record. The principles applicable to judicial review of administrative actions or findings recorded in departmental disciplinary proceedings do not apply to a Tribunal which is like an inquiring authority while assessing the evidence on the charges framed against a delinquent officer. The Tribunal was entrusted with the primary duty of making inquiry and record its findings on the charges. In that process it could enter into adequacy, insufficiency or credibility of evidence on record. The Legal Remembrancer was of the opinion that the Tribunal could not enter into the realm of adequacy or sufficiency of evidence and for that purpose he relied upon the well established principles of judicial review of administrative actions. The Tribunal was not discharging the functions of a court but on the other hand it was acting as the inquiring authority and it had full power to reappraise the evidence and record its findings and in that process it was open to it to hold that the evidence on record was not sufficient to sustain the charges against the appellant. The whole approach of the Legal Remembrancer was misconceived as a result of which he opined that the findings recorded by the Tribunal in appellant's favour could be ignored. We are of opinion that the State Government could not ignore the findings of the Tribunal applying the principles of judicial review of administrative actions by a court of law."
(iii) In Union of India and another and K.G.Soni reported in 2006 (6) SCC 794, the Supreme Court, after considering judgments on this point, at paragraphs 14 and 15, held as follows:
"14. The common thread running through in all these decision is that Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case, the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in the decision-making process and not the decision.
15. To put it differently, unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the Court/tribunal, there is no scope for interference. Further, to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed."
(iv) In Dharamraj v. Chhitan reported in 2006 (12) SCC 349, the Supreme Court has held that;
". finding of fact cannot be challenged in . a proceeding on the ground that the relevant and material evidence was insufficient to sustain the finding [and that] adequacy or sufficiency of evidence or an inference of fact to be drawn from the evidence or finding of fact are entirely within the jurisdiction of the Tribunal."
26. On the aspect of re-appreciation of entire evidence, the Apex Court in the following decisions has held as follows:
(i) 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."
(ii) 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:
"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 of the authority."
(iii). 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."
(iv) 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 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 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."
(v) 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 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."
(vi) 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:
"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."
(vii) 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 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."
(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."
27. On the aspect as to whether appellate authority is required to pass detailed order, the Hon'ble Supreme Court in the following judgment has held as follows;
(i) The Supreme Court in G.M.(P.W.), Canara Bank v. M.Raja Rao reported in 2001 (II) LLJ 819, had an occasion to consider as to whether the appellate authority is required to pass a detailed order, while concurring with the decision of the disciplinary authority. In the above reported judgment, a learned Single Judge of the Karnataka High Court did not find any infirmity with the disciplinary Proceedings and dismissed the Writ Petition filed by the delinquent. On appeal, the Division bench came to the conclusion that the disciplinary Authority, while agreeing with the report of the Enquiry Officer, is required to give reasons and the appellate authority has to consider the appeal in accordance with the Banking Regulations and set aside the order of removal from service. Agreeing with the contentions raised in the appeal preferred by the Bank, the Supreme Court, at Paragraphs 4, 5 and 6 held as follows:
"4. ...........The order of the Disciplinary Authority unequivocally indicates that he has gone into the findings of the Enquiring Authority and agreed with the same. When a Disciplinary Authority agrees with the findings and conclusions of the Enquiring Authority, it is not necessary in law to give any detailed reasons as to why he intends to agree with the findings of the Enquiring Authority. It is of course true that in the matter of award of punishing if Disciplinary Authority considers materials other than the materials which had been produced before the EO then the delinquent must be given a notice thereof or else the conclusions of the Disciplinary Authority would get vitiated.
5. So far as the order of the Appellate Authority is concerned, it is undoubtedly true that as provided in the Regulation, the Appellate Authority is required to pass a reasoned order. The question further arises for consideration is even though the order may be a reasoned order, can it be held to have suffered from any infirmity because all the contentions raised as alleged by the counsel for the delinquent, have not been dealt with?
6. On examining the order of the Appellate Authority, we are of the considered opinion that the Appellate Authority not only afforded opportunity of hearing to the delinquent, but also considered the contentions raised and then taking a totality of the entire circumstances agreed with the order of the Disciplinary Authority and dismissed the appeal. In that view of the matter, we do not think that any infirmity has been committed by the Appellate Authority in not giving detailed reasons on the contentions raised by the delinquent. In this view of the matter, the Division Bench also committed error in holding that the Appellate Authority committed a serious infirmity in dismissal of the appeal in question."
(ii) In a recent decision of the Supreme Court in 2008 (1) Supreme Today 617, (Divisional Forest Officer, Kottagudem's case) one of the contention was that the appellate/revisional authorities have failed to consider the grounds raised before them and that the orders passed thereto are cryptic without any detailed reasons. While dealing with the abovesaid contention, the Supreme Court re-affirmed the decisions rendered earlier in R.P.Bhatt's case cited supra and Ram Chander v. Union of India reported in 1986 (3) SCC 103 and at Paragraph 19 of the judgment, held as follows:
"19. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum, but in our view, in the interests of justice, the delinquent officer is entitled to know atleast the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum."
28. Going through the order passed by the disciplinary authority, this Court is of the view that it is a well considered order, and that the Deputy Inspector General of Police, Tiruchirapalli has considered the evidence and also observed that the occurrence was not denied. He has also considered the fact that witnesses have identified the petitioners, at the time of preliminary enquiry. Though the disciplinary authority has imposed a punishment of dismissal, the appellate authority, having regard to his service rendered by the petitioner for the past 21 years and the family circumstances, in order to give an opportunity to correct himself, has modified the punishment into that of reduction in time scale of pay by three stages for three years which shall operate to postpone future increments for three years. Thus, it could be seen that the appellate authority has considered as to whether the facts have been established and that the punishment awarded is commensurate to the charges. As rightly contended by the learned counsel for the State, the judgments relied on by the Petitioner cannot be strictly applied to the facts of this case. Each case has to be considered on its own merits. The case on hand is not on the basis of hearsay evidence. The witnesses have clearly identified the Policemen. No serious procedural irregularities have been pointed out in the conduct of the enquiry. Going through the materials available on record, the finding recorded by the enquiry officer cannot be said to be perverse, warranting interference at all. It is also to be noted that in respect of another co-delinquent the punishment has been modified and that he has also undergone the penalty.
29.For the abovesaid reasons, this Court is not inclined to interfere with the penalty and hence, the writ petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. No costs.
gcg To
1.The Deputy Inspector General of Police, Tiruchirappalli Range, Tiruchirappalli District.
2.The Superintendent of Police, Karur District, Karur.