K.M.Elumalai v. The Additional Director General of Police and Director General of Prisons Chennai

dispensing with the departmental proceedings on public interest isliable to be set aside on the ground of violation of principles ofnatural justice or not.2.The brief facts in a nutshell are as follows:The petitioner herein joined the Prison Department on05.07.1985 as Grade-II Warder and posted to Central Prison, Chennai.After serving in various places he lastly served at Sub Jail,Tiruvallur from 10.04.2007 to 21.05.2009.The petitioner's name was included in the Panel for regularGrade-I Warder for the year 2008-09 and it was approved by the firstrespondent in his proceedings dated 30.04.2009. Accordingly, he wastransferred from Sub Jail, Tiruvallur to Central Prison, Puzhal bythe Deputy Inspector General of Prisons, Chennai in his proceedingsdated 18.05.2009. The petitioner was relieved from Sub-Jail,Tiruvallur on 21.05.2009 and he reported for duty at Central Prison,Puzhal on 29.05.2009.An order of transfer was passed by the second respondent onadverse grounds dated 20.06.2009 stating that the petitioner istransferred from Central Prison-II, Puzhal and posted to CentralPrison, Salem. The petitioner was asked to report for duty the verynext day to the place to which he was transferred. The said order didnot indicate about the order passed by the first respondent.Challenging the said order, the petitioner filed a writ petition inW.P.No.11352 of 2009. During the arguments the learned GovernmentAdvocate submitted that the order impugned in W.P.No.11352 of 2009 isonly a consequential order which has been passed in pursuant to theorder passed by the first respondent dated 19.06.2009. Thereafter,the petitioner was served with the proceedings of the firstrespondent dated 19.06.2009 which states that the order of transferhas been effected on public interest. Challenging the same thesubsequent writ petition has been filed in W.P.No.17393 of 2009.The impugned order of transfer dated 19.06.2009 and theconsequential order dated 20.06.2009 have been passed on the groundthat there was a complaint by way of pseudonymous petition made tothe first respondent alleging that in the Sub Jail, Tiruvallur, nonvegetarian food, liqour and cell phone are allowed. The saidcomplaint was enquired on 30.05.2009 at Sub Jail, Tiruvallur, inwhich the staff and the prisoners have stated that the petitionerwanted to retain him at Sub Jail, Tiruvallur itself as Grade-I Warderand on his failure to do so he said that the others would be shuntedout of the Sub Jail, Tiruvallur to more than 300 kilometres withinthree days. Therefore based upon the said statement it was concludedin the discreet enquiry that the pseudonymous petition must have beensent by the petitioner alone. However, it has been decided by therespondents not to conduct any enquiry since it is not possible to https://hcservices.ecourts.gov.in/hcservices/ prove the same. Hence the impugned orders of transfer have beenpassed against the petitioner by the respondents.3.The learned counsel for the petitioner submitted that theimpugned orders are punity in nature and hence they are liable to beset aside. The learned counsel further submitted that legal malicehas been made out and the petitioner cannot be transferred based upona discreet enquiry conducted behind his back. It is further submittedthat the respondents cannot exercise the power in an arbitrary mannerand there cannot be any order of transfer in lieu of departmentalproceedings. Therefore in violation of principles of natural justicean order of transfer cannot be sustained and hence liable to be setaside. The learned counsel further submitted that what was servedoriginally was the consequential order of the second respondent andonly on the request of the petitioner the order of the firstrespondent was served on him.4.The learned counsel for the petitioner has relied uponthe judgments rendered in (2009) 3 MLJ 727 [SOMESH TIWARI vs. UNIONOF INDIA AND OTHERS]; W.A.NO.1138 OF 2008 DATED 24.04.2009; 2006 (2)CTC 468 [S.SEVUGAN vs. THE CHIEF EDUCATIONAL OFFICER, VIRUDHUNAGARDISTRICT, VIRUDHUNAGAR AND ANOTHER]; W.A.(MD) NOS.5 AND 7 OF 2007DATED 09.01.2007; W.P.NOS.20552 AND 22160 OF 2008 DATED 13.11.2008 insupport of his contention that an order of transfer being punitive innature cannot be sustained without affording an opportunity to thepetitioner.5.Per contra, the learned Government Advocate submittedthat an order of transfer being incidental to service cannot beinterfered by the Hon'ble High Court by exercising the power underArticle 226 of the Constitution of India. The learned GovernmentAdvocate further submitted that inasmuch as the order having beenpassed in public interest the same need not be set aside. Accordingto the learned Government Advocate in any case under FundamentalRules 15 power is given to the Government to transfer a Governmentservant even on the ground of misconduct. The learned GovernmentAdvocate has relied upon the judgments reported in (2004) 7 SCC 405[STATE OF U.P. AND ANOTHER vs. SIYA RAM AND ANOTHER]; (2001) 8 SCC574 [NATIONAL HYDROELECTRIC POWER CORPORATION LTD. vs. SHRI.BHAGWANAND ANOTHER]; 2007 (2) CTC 437 [P.SAMRAJ vs. THE COMMISSIONER OFPOLICE AND ANOTHER] and (2007) 8 SCC 212 (CHIEF COMMERCIAL MANAGER,SOUTH CENTRAL RAILWAY vs. G.RATNAM] in support of her contention thatan order of transfer being incidental to service the same cannot bechallenged. 6.The learned Government Government has made strongreliance upon the judgment of the Hon'ble Apex Court reported in(2004) 4 SCC 245 [UNION OF INDIA AND OTHERS vs. JANARDHAN DEBANATHAND ANOTHER] and contended that even assuming there is a misconducton the part of the petitioner in public interest an order of transfer https://hcservices.ecourts.gov.in/hcservices/ can be made. According to the learned Government Advocate theimpugned order of the first respondent has been served along with theorder of the second respondent. Therefore, it is submitted thatinasmuch as the transfer being incidental to the service and made onpublic interest it cannot be questioned before this Court. Hence, thelearned Government Advocate prayed for the dismissal of the writpetitions.7.The question as to whether the petitioner was served withthe impugned order passed by the first respondent along with theconsequential order passed by the second respondent or not, being adisputed question of fact and not relevant for the purpose of writpetition need not be gone into by this Hon'ble Court. Therefore thisCourt is not inclined to go into the said question.8.The only question is to consider in the present case isthat as to whether the impugned orders can be sustained based upon adiscreet enquiry conducted behind the back of the petitioner on theground of public interest or not and the same would be in violationof principles of natural justice or not.9.EDMUND BURKE in 1788 has observed as follows:"Law and arbitrary power are in eternalenmity. Name me a magistrate, and I will nameproperty; name me power, and I will nameprotection. It is a contradiction in terms, it isblasphemy in religion, it is wickedness inpolitics, to say that any man can have arbitrarypower. In every patent of office the duty isincluded. For what else does a magistrate exist?To suppose for power, is an absurdity in idea."10.In SPACKMAN v. PLUMSTEAD DISTRICT BOARD OF WORKSreported in (1885) 10 Appeal Cases 229, EARL OF SELBORNE L.C. hasheld as follows:"No doubt in the absence of specialprovisions as to how the person who is to decideis to proceed, the law will imply no more thanthat the substantial requirements of justiceshall not be violated. He is not a judge in theproper sense of the word, but he must give theparties an opportunity of being heard before himand stating their case and their view. He mustgive notice when he will proceed with the matterand he must act honestly and impartially and notunder the dictation of some other person orpersons to whom the authority is not given bylaw. There must be no malversation of any kind.There would be no decision within the meaning of https://hcservices.ecourts.gov.in/hcservices/ the statute if there were anything of that sortdone contrary to the essence of justice."11.Similarly in LEESON v. GENERAL COUNCIL OF MEDICALEDUCATION reported in (1889) 43 CH.D., BOWEN L.J. stated as follows:"The statute imports that the substantialelements of natural justice must be found to havebeen present at the inquiry. There must be dueinquiry. The accused person must have notice ofwhat he is accused. He must have an opportunityof being heard and the decision must be honestlyarrived at after he has had a full opportunity ofbeing heard."12.The above said principles of law evolved by the EnglishCourts would clearly lead to the conclusion that while acting upon afact the person who exercises the power treating the said fact asconclusive will have to satisfy himself about the due proof of thesame before taking any action based upon the same. In other wordswhen a power is vested upon an authority the said authority will haveto exercise the said power only in the manner known to law which isby giving a sufficient opportunity to the person against whom theaction is proposed. The basic requirement of the said principle is toinform the person concerned about the charges levelled against himand thereafter affording an opportunity to putforth his case followedby a further opportunity to peruse the materials placed against himand cross-examine the witnesses who deposed against him.13.It is no doubt true that an order of transfer isincidental to the service but the question for consideration is as towhether such an order can be passed in total violation of principlesof the natural justice and by dispensing with the enquiry.14.As submitted by the learned Government Advocate in thejudgment reported in (2004) 7 SCC 405 [STATE OF U.P. AND ANOTHER vs.SIYA RAM AND ANOTHER] it has been held that the transfer beingincidental to the service and the same having been made in publicinterest keeping in view of efficiency in public administration thesame cannot be interfered under Article 226 of the Constitution ofIndia in the absence of any malafide shown by the party concerned.Similarly in the judgment reported in (2001) 8 SCC 574 [NATIONALHYDROELECTRIC POWER CORPORATION LTD. vs. SHRI.BHAGWAN AND ANOTHER],the Hon'ble Apex Court has taken the view that unless malafides areshown and violations of any statutory provisions are shown an orderof transfer cannot be interfered. The Hon'ble High Court reported in2007 (2) CTC 437 [P.SAMRAJ vs. THE COMMISSIONER OF POLICE ANDANOTHER] has observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "11.The scope of Judicial review in thematter of transfer is well settled by theHonourable Supreme Court. (a)The Honourable Supreme Court in thedecision reported in Union of India v. S.L.Abbas,AIR 1993 SC 2444, in paragraph 7 held as follows:"7.Who should be transferred where, is amatter for the appropriate authority to decide.Unless the order of transfer is vitiated by malafides or is made in violation of any statutoryprovisions, the Court cannot interfere with it.While ordering the transfer, there is not doubt,the authority must keep in mind the guidelinesissued by the Government on the subject.Similarly if a person makes any representationwith respect to his transfer, the appropriateauthority must consider the same having regard tothe exigencies of administration. The guidelinessay that as far as possible, husband and wifemust be posted at the same place. The saidguideline however does not confer upon theGovernment employee a legally enforceable right."(b)In State of Punjab v. Joginder SinghDhatt, AIR 1993 SC 2486, in paragraph 3, theHonourable Supreme Court held thus:"3.We have heard learned counsel for theparties. This Court has time and again expressedits disapproval of the Courts below interferingwith the order of transfer of public servant fromone place to another. It is entirely for theemployer to decide when, where and at what pointof time a public servant is transferred from hispresent posting. Ordinarily the Courts have nojurisdiction to interfere with the order oftransfer. The High Court grossly erred inquashing the order of transfer of the respondentfrom Hoshiarpur to Sangrur. The High Court wasnot justified in extending its jurisdiction underArticle 226 of the Constitution of India in amatter where, on the face of it, no injustice wascaused."c)In National Hydroelectric Power Corpn.Ltd. v. Shri Bhagwan, 2001(8) SCC 574, wherein atpara5, the Honourable Supreme Court held asfollows: "5....... It is by now well settled andoften reiterated by this Court that no Government https://hcservices.ecourts.gov.in/hcservices/ servant or employee of a public undertaking hasany legal right to be posted forever at any oneparticular place since transfer of a particularemployee appointed to the class or category oftransferable posts from one place to other is notonly an incident, but a condition of service,necessary too in public interest and efficiencyin the public administration. Unless an order oftransfer is shown to be an outcome of mala fideexercise of power or stated to be in violation ofstatutory provisions prohibiting any suchtransfer, the Courts or the Tribunals cannotinterfere with such orders as a matter ofroutine, as though they are the AppellateAuthorities substituting their own decision forthat of the management, as against such orderspassed in the interest of administrativeexigencies of the service concerned............" 12.The power of the Court while dealing withthe transfer order is explained by the HonourableSupreme Court in the following decisions. (i)In State of U.P. and another v. Siya Ramand another, 2004(7) SCC 405, at paragraph 5 theHonourable Supreme Court held thus:"5.The High Court while exercisingjurisdiction under Articles 226 and 227 of theConstitution of India had gone into the questionas to whether the transfer was in the interest ofpublic service. That would essentially requirefactual adjudication and invariably depend uponpeculiar facts and circumstances of the caseconcerned. No government servant or employee ofa public undertaking has any legal right to beposted forever at any one particular place orplace of his choice since transfer of aparticular employee appointed to the class orcategory of transferable posts from one place toother is not only an incident, but a condition ofservice, necessary too in public interest andefficiency in the public administration. Unlessan order of transfer is shown to be an outcome ofmala fide exercise or stated to be in violationof statutory provisions prohibiting any suchtransfer, the Courts or the tribunals normallycannot interfere with such orders as a matter ofroutine, as though they were AppellateAuthorities substituting their own decision for https://hcservices.ecourts.gov.in/hcservices/ that of the employer/management, as against suchorders passed in the interest of administrativeexigencies of the service concerned. Thisposition was highlighted by this Court inNational Hydroelectric Power Corpn. Ltd. V. ShriBhagwan, 2001(8) SCC 574." ii)In Kendriya Vidyalaya Sangathan v.Damodar Prasad Pandey and others, 2004(12) SCC299, in paragraph 4 the Honourable Supreme Courtobserved as follows: "4.Transfer which is an incidence of serviceis not to be interfered with by Courts unless itis shown to be clearly arbitrary or visited bymala fide or infraction of any prescribed normsof principles governing the transfer (see AbaniKanta Ray v. State of Orissa, 1995 Supp (4) SCC169). Unless the order of transfer is visited bymala fide or is made in violation of operativeguidelines, the Court cannot interfere with it(see Union of India v. S.L.Abbas, 1993 (4) SCC357). Who should be transferred and posted whereis a matter for the administrative authority todecide. Unless the order of transfer is vitiatedby mala fides or is made in violation of anyoperative guidelines or rules the Courts shouldnot ordinarily interfere with it. In Union ofIndia v. Janardhan Debanath, 2004(4) SCC 245, itwas observed as follows: "No government servant or employee of apublic undertaking has any legal right to beposted forever at any one particular place orplace of his choice since transfer of aparticular employee appointed to the class orcategory of transferable posts from one place toanother is not only an incident, but a conditionof service, necessary too in public interest andefficiency in the public administration. Unlessan order of transfer is shown to be an outcome ofmala fide exercise or stated to be in violationof statutory provisions prohibiting any suchtransfer, the Courts or the Tribunals normallycannot interfere with such orders as a matter ofroutine, as though they were the AppellateAuthorities substituting their own decision forthat of the employer/management, as against suchorder passed in the interest of administrativeexigencies of the service concerned. Thisposition was highlighted by this Court in https://hcservices.ecourts.gov.in/hcservices/ National Hydroelectric Power Corpn. Ltd. v. ShriBhagwan, 2001(8) SCC 574." iii)I have also taken similar view in atransfer matter in the decision reported inChinnasamy v. District Collector, Salem, 2006(2)MLJ 474, and also in Dr.T.Mytle Grace v. TamilNadu Agricultural University, Coimbatore andothers, W.P.No.4511 of 2006 dated 25.8.2006. 13.Following the above said cited decisionsand having regard to the facts in this case, I amof the view that the petitioner has no legalright to contend that he shall not be transferredand he should be permitted to work in the same T-9 Pattabiram Station." 15.On a consideration of the above said judgments, thisCourt is of the opinion that there is no dispute or quarrel on thesettled proposition of law that a transfer which is administrative,made in public interest and being incidental to service cannot bechallenged. However from the said judgments it cannot be construed tohold that in any given consideration an order of transfer cannot bechallenged. In the judgment reported in (2009) 3 MLJ 727 [SOMESHTIWARI vs. UNION OF INDIA AND OTHERS] the Hon'ble Apex Court hasobserved as follows:"19.Indisputably, an order of transfer is anadministrative order. There cannot be any doubtwhatsoever that transfer, which is ordinarily anincident of service should not be interferedwith, save in cases where inter alia mala fide onthe part of the authority is proved. Mala fideis of two kinds - one malice in fact and thesecond malice in law. 20.The order in question would attract theprinciple of malice in law as it was not based onany factor germane for passing an order oftransfer and based on an irrelevant ground i.e.on the allegations made against the appellant inthe anonymous complaint. It is one thing to saythat the employer is entitled to pass an order oftransfer in administrative exigencies but it isanother thing to say that the order of transferis passed by way of or in lieu of punishment.When an order of transfer is passed in lieu ofpunishment, the same is liable to be set asidebeing wholly illegal." https://hcservices.ecourts.gov.in/hcservices/

16.The Hon'ble Apex Court has further observed as follows:"25.No vigilance enquiry was initiatedagainst him. The order of transfer was passed onmaterial which was not existent. The order,therefore, not only suffers from total nonapplication of mind on the part of authorities ofrespondent No.1, but also suffers from malice inlaw. 26.The High Court while exercising itsjurisdiction under Article 226 of theConstitution of India must consider the fact ofeach case. Mechanical application of the normalrule "no work no pay" may in a case of thisnature, be found to be wholly injust. Noabsolute proposition of law in this behalf can belaid down."17.A reading of the said judgment would show that the orderof transfer passed in lieu of the punishment without conductingenquiry cannot be sustained.18.A similar view has been expressed by the Hon'ble HighCourt in the judgment reported in 2006 (2) CTC 468 [S.SEVUGAN vs. THECHIEF EDUCATIONAL OFFICER, VIRUDHUNAGAR DISTRICT, VIRUDHUNAGAR ANDANOTHER] has observed as follows:"7.It is seen from the impugned order oftransfer that it is passed on administrativeground, but it appears that the order was passedby way of punishment and based on the complaintagaint the conduct of the petitioner. If that beso, the petitioner is certainly entitled forproper opportunity to defend himself as towhether the complaints against him by the Publicor by the Headmaster is proper or not by way ofan enquiry. 8.In these, circumstances, this Court is ofthe view that the transfer order passed by way ofpunishment is without any opportunity to thepetitioner and on the face of it, the order oftransfer is illegal and the same is liable to beset aside. Accordingly, the impugned order isset aside."19.The Division of the Hon'ble High Court in W.A.NO.1138 OF2008 DATED 24.04.2009 has held as follows: https://hcservices.ecourts.gov.in/hcservices/ "8.Learned counsel for the appellantsubmitted that though the order of transfer isstated to be passed on administrative grounds inthe counter affidavit filed by the respondents inthe writ petition it has been specifically statedthat the transfer was effected since theappellant came to adverse notice. He furthersubmitted that before the learned Single Judgesome confidential files were shown and based onthe averments in the counter affidavit as well asin the confidential files, the learned Judge hasdeclined to interfere with the order of transfer.He further submitted that the respondents cannotresort to an order of transfer if there arecomplaints against the petitioner but it is opento the Department to proceed against theappellant under the relevant Rules if there isany evidence to prove his alleged misconduct. Hein support of his aforesaid contentions basedreliance on a decision of Mr.Justice P.Jyothimanireported in 2006(2) CTC 468 (S.Sevugan v. TheChief Educational Officer, Virudhunagar District)wherein in paragraph 8 it is held as under:- "8.In these, circumstances, this Court is ofthe view that the transfer order passed by way ofpunishment is without any opportunity to thepetitioner and on the face of it, the order oftransfer is illegal and the same is liable to beset aside. Accordingly, the impugned order isset aside." 9.Learned counsel for the appellantsubmitted that the said decision has beenfollowed by Mr.Justice N.Paul Vasanthakumar inthe order dated 29.11.2006 passed in W.P. (M.D)No.9401 of 2006. He further submitted that thesaid order passed in W.P.(M.D.) No.9401 of 2006has been confirmed by an order dated 09.01.2007passed by a Division Bench of this Court in W.A.(M.D.) Nos.5 and 7 of 2007. Learned counsel hasproduced the copies of those judgments also. 10.Countering the said submissions thelearned Special Government Pleader submitted thatthe order of transfer as pointed out by thelearned Single Judge can be challenged only whensuch order of transfer is actuated by malafied orthat it is made against any statutory provisionof Service Rules. He further submitted that the https://hcservices.ecourts.gov.in/hcservices/ learned Single Judge has taken note off of thereport of the Director General of Policeaddressed to the Inspector General of Police,West Zone, Coimbatore and has come to theconclusion that there are materials in the handsof the Police to transfer the petitioner to someother range to save the image of the police. 11.We have carefully considered the saidsubmissions made by the learned counsel on eitherside. 12.Though in the impugned order of transferit is stated as if the transfer has been effectedon administrative grounds, the same has beengiven a go-by in the counter affidavit filed bythe respondents as stated above. As per theaverments contained in the counter affidavit thetransfer was passed on some adverseremarks/complaints received against the appellantand also on the basis of the report sent by theDirector General of Police to the InspectorGeneral of Police, West Zone, and in suchcircumstances we are of the considered view thatthe order of transfer passed against theappellant is by way of punishment and that toowithout giving any opportunity of hearing to thepetitioner. 13.To the facts of this case, the aforesaidthree decisions squarely apply. But this aspecthas not been considered by the learned SingleJudge. May be that these points were not arguedbefore the learned Single Judge. But being aquestion of law the same can be argued before theDivision Bench. We are in full agreement withthe decisions referred to above. Hence applyingthe principles laid down therein, we areconstrained to interfere with the order passed bythe learned Single Judge. Hence the order dated10.09.2008 passed in W.P.No.4564 of 2008 ishereby set aside and the writ appeal is allowed.However there will be no order as to costs.Consequently the connected MP is closed."20.Therefore this Court is of the opinion that the impugnedorders passed by the respondents will have to be set aside beingpunitive in nature and therefore bad in law in not following theprinciples of natural justice, by affording an opportunity to thepetitioner and by conducting an enquiry. https://hcservices.ecourts.gov.in/hcservices/

21.The proceedings are also liable to be set aside sincethe respondents have come to the conclusion based upon a discreetenquiry which is again based upon the statement obtained from personsbehind the back of the petitioner. Even in an enquiry a statementobtained in a preliminary enquiry prior to a full-fledged enquirycannot be relied upon. Therefore in such a case an order passed basedupon such an enquiry cannot be sustained. In the judgment reported in(2006) 2 MLJ 202 [T.PITCHAI vs. DEPUTY INSPECTOR GENERAL OF POLICE,TIRUNELVELI RANGE, TIRUNELVELI AND ANOTHER] the Hon'ble High Courtafter considering the judgment of the Hon'ble Apex Court and theDivision Bench judgment of the Hon'ble High Court was pleased to holdthat the punishment based upon a statement given a preliminaryenquiry cannot be sustained. The Hon'ble High Court has observed asfollows:"7.In the decision reported in Union ofIndia v. Mohd. Ibrahim, (2004) 10 S.C.C.87, theHonourable Supreme Court in the facts andcircumstances of the case before it held that theorder of dismissal was vitiated as the findingshave been based on consideration of statement ofthe persons examined during the preliminaryenquiry and for the said fact the Tribunal setaside the order of dismissal which was upheld bythe High Court and there is no error in the saidorder setting aside the dismissal order.8.A Division Bench of this Court by Judgmentin Deputy Inspector General of Police, Villupuramand others v. V.Vanniaperumal and others,W.P.Nos.29862 and 32581 of 2002, dated 22.02.2005upheld the order of the Tribunal which set asidethe order of removal from service. Paras.6 and 8of the judgment can be usefully referred to,which reads thus:"6.We have carefully considered the relevantmaterials and the rival contentions. We havealready referred to the charges levelled againstthe applicants. It is also relevant to note thatapart from the applicants two more officers havealso been implicated along with them. They areone Sattanathan, Sub-Inspector of Police andAntony, Inspector of Police. It is brought to ournotice that Sattanthan is no more and so far asthe other officer Antony is concerned lesserpunishment has been imposed. Now we are concernedwith the charges levelled against both theapplicants. In the light of the conclusion https://hcservices.ecourts.gov.in/hcservices/ arrived at by the Tribunal, we perused thefinding of the Enquiry Officer. It is not indispute that all the prosecution witnesses exceptPW.3, who is none other than the DeputySuperintendent of Police, the other witnessesviz. P.Ws.1, 2, 4 and 5 turned hostile before theEnquiry Officer and not supported their earlierstatement made at the preliminary enquiry. TheEnquiry Officer having noted the above aspectcuriously submitted a report holding that all thethree charges levelled against them are provedbased on the preliminary enquiry.7. ........8.In our case, we have already referred tothe fact that the prosecution witnesses viz.,P.Ws.1, 2, 4 and 5 turned hostile and notsupported their preliminary version. However, theEnquiry Officer basing reliance on their earlierstatement in the preliminary enquiry found thatall the charges levelled against them are proved.In the light of the decision of the Supreme Courtreferred to above, after full-fledged enquiry washeld the preliminary enquiry had lost itsimportance. Further, we find no substance ormaterial to arrive at a conclusion that "sinceall the three counts were proved by theprosecution beyond reasonable doubts,convincingly, I agree with the findings of theEnquiry Officer, ...". We are satisfied thatthere is no material to arrive at such aconclusion by the Deputy Inspector General ofPolice, while passing an order removing theapplicants from service. All these aspects havebeen considered by the Tribunal in a propermanner and there is no acceptable material orevidence to take different view as that of theTribunal. We find no merits in both the writpetitions. Accordingly, they are dismissed. Nocosts. Consequently, the connected miscellaneouspetitions are dismissed."The said conclusion was arrived at by theDivision Bench based on the decision of theHonourable Supreme Court reported in NarayanaDattatraya Ramteerthakhar v. State ofMaharashtra, (1197) 1 S.C.C. 299. https://hcservices.ecourts.gov.in/hcservices/

9.The above referred decision of theDivision Bench was followed by me in the order inB.Balamurugan v. The Inspector General of Police,Madurai-2 and two others, W.P.No.27019 of 2005,dated 15.02.2006, wherein the order of punishmentwas set aside.10.Applying the above principles laid downby the Honourable Supreme Court, Division Benchof this Court and also the earlier decision ofmine, as referred above, I am of the opinion thatthe differing view taken by the disciplinaryauthority/second respondent herein against theEnquiry Officer's report is unsustainable in viewof the fact that the said view was taken solelybased on the statements recorded during thepreliminary enquiry. Consequently, the punishmentimposed on the basis of the dissenting view isunsustainable and the order of the appellateauthority confirming the order of the dismissalis also unsustainable."Hence on a consideration of the above said principle also,this Court is of the opinion that the impugned orders passed by therespondents will have to be set aside.22.The learned Government Advocate made strong relianceupon the judgment of the Hon'ble Apex Court reported in (2004) 4 SCC245 [UNION OF INDIA AND OTHERS vs. JANARDHAN DEBANATH AND ANOTHER]and submitted that under Fundamental Rules 15 an order of transfercan be passed even in a case of misbehaviour or misconduct by theemployee concerned. It is a well settled principle of law that ajudgment will have to be applied to the facts of each case, in thesaid case the Hon'ble Apex Court was dealing with the case wherebased upon certain allegation an order of transfer was made byexercising the power under the Fundamental Rules. Therefore, theHon'ble Supreme Court was considering the powers of the authoritiesunder the said Rules. Moreover a reading of the said judgment wouldshow that it was clearly observed that the question of misbehaviourcan be gone into departmental proceedings whereas in the present caseit has been clearly stated by the respondents that they have nointention to go with the departmental proceedings since they knowvery well that it is not possible to prove the factum of the allegedmisconduct by the petitioner. 23.Moreover the interpretation of Fundamental Rules 15 isnot in question in the present case since the power has beenexercised by the first respondent under the Tamil Nadu JailSubordinate Rules. Further a reading of the Fundamental Rules wouldshow that the power has to be exercised by the Government whereas in https://hcservices.ecourts.gov.in/hcservices/ the present case on hand the said power has been exercised under theTamil Nadu Jail Subordinate Rules by the first respondent herein. Inthis connection, it is useful to refer the judgment of the DivisionBench reported in 2009(3) CTC 97 [D.Sivakumar v. The Government ofTamil Nadu] wherein the Hon'ble Division Bench has observed asfollows:"11.The learned Senior Counsel has contendedthat inasmuch as in the absence of any powerunder the Parent Act, the impugned rule is notgood in law. In support of his contention, thelearned Senior Counsel has relied uponK.P.Enterprises v. District Collector, Salem, AIR2004 Mad. 151; State of Tamil Nadu v.M.P.P.Kavery Chetty, AIR 1995 SCC 858;K.T.Varghese v. State of Kerala, 2008(3) SCC 735,to contend that under Section 15(1) of the MMDRAct, 1957, there is no power to control themovement of any minerals after the sale. In the judgment reported in K.P.Enterprisesv. District Collector, Salem, AIR 2004 Mad. 151,unfortunately Section 23-C has not been broughtto the notice of this Court. It is well settledprinciple of law that when a particular point oflaw is not consciously determined by the Court,that does not form part of ratio decidendi. Itis further to be noted that a judgment renderedwithout reference to the statutory provisionscannot be considered as a ratio decidendi andin any case such a judgment will not be bindingwhen an issue is before the Division Bench. Inthis regard, we may refer the judgment reportedin Arnit Das v. State of Bihar, 2000 (5) SCC 488,wherein the Hon'ble Supreme Court has held that adecision which is not expressed, not accompaniedby reason and not proceeding on a consciousconsideration of an issue cannot deem to be a lawdeclared and the same is not the ratio decidendi.Similarly, in Tvl.N.V.S. Agro Derivatives v.Commercial Tax Officer, Theni 2006(1) CTC 449;2006 (1) MLJ 192, the Hon'ble High Court has alsotaken the same view."24.Similarly in the judgment reported in 2009 AIR SCW 942[COMMISSIONER OF CENTRAL EXCISE, BANGALORE v. SRIKUMAR AGENCIES] theHon'ble Supreme Court has observed as follows:"4.Courts should not place reliance ondecisions without discussing as to how the https://hcservices.ecourts.gov.in/hcservices/ factual situation fits in with the fact situationof the decision on which reliance is placed.Observations of Courts are neither to be read asEuclid's theorems nor as provisions of thestatute and that too taken out of their context.These observations must be read in the context inwhich they appear to have been stated. Judgmentsof Courts are not to be construed as statutes.To interpret words, phrases and provisions of astatute, it may become necessary for judges toembark into lengthy discussions but thediscussion is meant to explain and not to define.Judges interpret statutes, they do not interpretjudgements. They interpret words of statutes;their words are not to be interpreted asstatutes. In london Graving Dock Co. Ltd. v.Horton (1951 Apex Court 737 at p.761), Lord MacDermot observed:"The matter cannot, of course, be settledmerely by treating the ipsissima vertra ofWilles, J. as though they were part of an Act ofParliament and applying the rules ofinterpretation appropriate thereto. This is notto detract from the great weight to be given tothe language actually used by that mostdistinguished judge." In Home Office v. Dorset Yacht Co. (1970(2)All ER 294) Lord Reid said, "Lord Atkin'sspeech.... is not to be treated as if it was astatute definition. It will requiredqualification in new circumstances." Megarry, J.in (1971) 1 WLR 1062 observed: One must not, ofcourse, construe even a reserved judgment ofRussell L.J.as if it were an Act of Parliament."And, in Herrington v. British Railways Board(1972(2) WLR 537) Lord Morris said: "There is always peril in treating the wordsof a speech or judgment as though they are wordsin a ligislative enactment, and it is to beremembered that judicial utterances made in thesetting of the facts of a particular case."5.Circumstantial flexibility, one additionalor different fact may make a world of differencebetween conclusions in two cases. Disposal ofcases by blindly placing reliance on a decisionis not proper. https://hcservices.ecourts.gov.in/hcservices/ The following words of Lord Denning in thematter of applying precedents have become locusclassicus: "Each case depends on its own facts and aclose similarity between on case and another isnot enough because even a single significantdetail may alter the entire aspect, in decidingsuch cases, one should avoid the temptation todecide cases (as said by Cordozo) by matching thecolour of one case against the colour of another.To decide therefore, on which side of the line acase falls, the broad resemblance to another caseis not at all decisive." 25.Therefore on a reading of the said judgments, this Courtis of the opinion that the judgments relied upon by the learnedGovernment Advocate do not apply to the present case on hand.26.Thus on a consideration of the facts and circumstancesand also on a consideration of the legal issues involved, this Courtis of the considered view that the impugned orders passed by therespondents are liable to be set aside. Accordingly they are setaside and the writ petitions are allowed. No costs. Consequently,connected miscellaneous petitions are closed.Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarsriTo1.The Additional Director General of Police and Director General of Prisons Chennai – 600 008.2.The Superintendent of Prisons Central Prison-II, Puzhal Chennai – 600 066.+ 1 CC to Mr.P.Rajendran,Advocate,SR.52336 W.P. NOS.11352 & 17393 OF 2009BV(CO)EM/13.10