R.Elango v. Superintendent of Police & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 18.02.2009C O R A MTHE HONOURABLE Mr. JUSTICE S. NAGAMUTHUWrit Petition No.42900 of 2006 (T)(O.A.No.1098/1999)R.Elango ..Petitioner-Vs-1. The Superintendent of Police, Thanjavur District.2. The Deputy Inspector General of Police, Thanjavur Range, Thanjavur. ..RespondentsThis writ petition came to be numbered by way of transfer ofO.A.No.1098 of 1999 from the file of the Tamil Nadu AdministrativeTribunal with a prayer to issue a Writ of certiorari to call for therecords of the respondents relating to the orders passed inPR.No.78/97 dated 13.07.1998 and quash the same. For Petitioner : Mr.K.Venkataramani, Senior counsel for Mr. M. Muthappan For Respondents : Mrs.Malarvizhi Udhyakumar, Spl.Govt.Pleader. O R D E RDuring the year 1996, the petitioner was a Head-Constable inThanjavur District. The Superintendent of Police, Thanjavur by hisproceedings in PR.No.78 of 1997 framed charge against the petitionerunder Rule 3(b) of the Tamil Nadu Police Subordinate Service (D & A)Rules. According to the charge, on 13.12.1996 the petitionerescorted two prisoners from Central Prison, Trichirapalli for beingproduced before the Judicial Magistrate No.II, Tanjore. After theywere so produced as per the directions of the learned JudicialMagistrate, the petitioner along with another Constable escorted thesaid two accused back to the Central Prison. When they were producedbefore the Jail authorities, it was found that both the prisonerswere in drunken state. https://hcservices.ecourts.gov.in/hcservices/

2. For having allowed the prisoners to take illicit arrack whilein custody, the petitioner was charged. Since the petitioner deniedthe same, an enquiry Officer was appointed. The Deputy Superintendentof Police, Pattukottai- the Enquiry officer, after holding enquiry,submitted a report to the Superintendent of Police holding the chargeproved. During the enquiry, as many as three witnesses were examinedand a number of documents were exhibited. Admittedly, the petitionerwas allowed to cross examine the witnesses. The petitioner, finallysubmitted a written explanation wherein he had stated that theprisoners while being brought back to Trichirapalli, wanted water todrink and therefore, they were taken to a nearby tea stall wherethey took water. The explanation further proceeds to say that thepetitioner never allowed the prisoners to take illicit arrack at all.He would further state that the prisoners had taken some tablets andthe same would have had the effect of alcohol. It is further statedthat it was also possible that without the knowledge of thepetitioner, the alcohol would have been mixed up in the drinkingwater. In any event, according to the explanation, to the knowledgeof the petitioner, the prisoners did not take any other intoxicatingsubstance at all. The said explanation was rejected. The enquiryOfficer based on the oral as well as documentary evidence, held thatthe petitioner is guilty of the charge. Thereafter, theSuperintendent of Police, Thanjavur by his order dated 13.07.1998imposed a punishment of stoppage of increment for three years withcumulative effect. 3. Challenging the said order of the Superintendent of Police,the petitioner filed an appeal to the Deputy Superintendent ofPolice, Tanjore on 01.08.1998. But no orders were passed within aperiod of six months from the date of presentation of the saidappeal. Therefore, he filed O.A.No1098 of 1999 before the Tamil NaduAdministrative Tribunal, challenging the order of the Superintendentof Police. The said original application was admitted by the Tribunalon 17.02.1999. On transfer, the said O.A has been renumbered asW.P.No.42900 of 2006 and that is how, the same is now before thisCourt for disposal.4. At the outset, the learned Special Government Pleader wouldsubmit that subsequent to the admission of O.A., the DeputySuperintendent of Police,namely, the appellate authority passed afinal order on 08.03.1999 in R.C.No.D2.85/80/98, thereby, rejectingthe appeal preferred by the petitioner. Therefore, according to her,it is open to the petitioner to challenge the order of the appellateauthority. She would further submit that since the appeal itself hasbeen disposed of, without challenging the same, it is not now open tothe petitioner to challenge the order of the disciplinary authorityin this writ petition. On this preliminary objection, the learnedSpecial Government Pleader would pray for dismissal of the writpetition. https://hcservices.ecourts.gov.in/hcservices/

5. In answer to the same, the learned senior counsel appearingfor the petitioner would submit that since the appeal was notdisposed of within six months from the date of presentation of theappeal, as per Section 20(2)(b) of the Administrative Tribunals Act1985, the petitioner filed original application within the statutoryperiod. Thus according to the learned senior counsel, the writpetition is maintainable. He would further submit that in view ofSection 19, Sub clause 4 of the Act, the order passed by theappellate authority is non-est in the eye of law and so, the saidorder would not stand in the way of the petitioner from furtherprosecuting this writ petition.6. Since such a serious doubt is raised by the senior counselregarding the maintainability of the writ petition in view of thelater development, I deem it proper to decide the said question first.7. Admittedly, the appeal preferred by the petitioner was notdisposed of by the Deputy Inspector General of Police, Thanjavurwithin six months. A close reading of Section 20(2)(b) of the Actwould go to show that in such an event, the aggrieved is entitled tochallenge the order of the disciplinary authority by filing originalapplication before the Tamil Nadu Administrative Tribunal. In thiscase, the petitioner has rightly done so.8. Now, Section 19(4) of the Act needs consideration. Under thesaid provision, if an application has been admitted by theAdministrative Tribunal, then automatically, the proceeding which isunder challenge shall abate, unless there is a contrary order issuedby the Tribunal.In this case, admittedly, the Tribunal did notpass any order permitting the appellate authority to proceed furtherto dispose of the appeal. Therefore, by operation of law, the appealpreferred by the petitioner stands abated with effect from 17.02.1999on the admission of O.A by the Tamil Nadu Administrative Tribunal.Therefore, as rightly pointed out by the learned senior counsel, theorder passed by the appellate authority is without jurisdiction andso the same is non-est in the eye of law and thus the said order ofthe appellate authority would not in any manner stand in the way ofthe petitioner in prosecuting this writ petition.9. Coming back to the findings of the first respondent, I do notfind any infirmity in the same. Though the learned senior counseltries to assail the order of the first respondent on the ground thatthere is no medical proof that the prisoners were found drunk, I amnot persuaded by the same. Though it is admitted by P.W.3 that therewas a doctor available in the jail who would be competent to give https://hcservices.ecourts.gov.in/hcservices/ medical certificate regarding the fact as to whether the prisonerswere drunk or not, that itself would not vitiate the findings of theenquiry officer as well as the disciplinary authority. P.W.3 hasstated that when the prisoners were produced before him, from thegait and other behaviours of the prisoners, he could pursue that theywere drunk. In my considered opinion, it is possible for any personto find out even without the aid of a doctor that a person before himis drunk or not from the disorderly behaviour. It is commonknowledge that on seeing the way in which a person behaves and walksun-steadily, it could be easily ascertained that a person is drunk.Of course, it is true that whether the prisoners were drunk or notcould also be ascertained by medical examination. Such medicalexamination would be required only in a case where proof is requiredbeyond reasonble doubt as it is done in the criminal cases. Here, indepartmental proceedings, there cannot be any quarrel thatconclusions are arrived at on the basis of preponderance ofprobabilities. Here as it has been concluded by the enquiry officer,there are circumstances spoken to by P.W.3 and also the so-calledexplanations offered by the petitioner, which would satisfy the testof probability to come to the conclusion that the prisoners weredrunk. Admittedly, the prisoners were in the custody of thepetitioner and another constable for the whole day. It was theirresponsibility to see that they did not take any liquor while incustody. But, the petitioner has failed to discharge the dutyproperly. Thus the petitioner is guilty of the charge. The enquiryOfficer has rightly concluded so. The respondent has also rightlyaccepted the said finding. On going through the entire facts andcircumstances, I do not find any infirmity in the said findingarrived at by the respondents.10. Insofar as the quantum of punishment is concerned, thelearned senior counsel would submit that the quantum of punishment isshockingly disproportionate to the gravity of the charge. Accordingto him, it is not seen from records that the petitioner behaved insuch manner on any previous occasion. According to him, thepetitioner has got a clean record of service. Now, he is around 58years. Because of the punishment, the petitioner would be loosinghuge sum in his pension and other monetary benefits. He would furthersubmit that after the punishment impugned in this writ petition,again the petitioner has been maintaining a clean record of service. 11. Having regard to the above, I am of the view that imposingof punishment of reduction in time scale of pay by three stages forthree years without cumulative effect shall meet the ends of justice.To that extent, the quantum of punishment alone needs to be modified. https://hcservices.ecourts.gov.in/hcservices/

12. In the result, the Writ Petition is partly allowed. Thepunishment of reduction in time scale of pay by three stages forthree years with cumulative effect is set aside and instead, thereshall be a punishment of reduction in time scale of pay by threestages for three years without cumulative effect. No costs. sd/-Asst.Registrar/true copy/Sub Asst.RegistrarpalTo1. The Superintendent of Police, Thanjavur District.2. The Deputy Inspector General of Police, Thanjavur Range, Thanjavur.+ 1 c.c. to M/s. T. Ayngaraprabhu, Advocate. S.R.No.6850.+ 1 c.c. to The Government Pleader. S.R.No.6997. W.P.No.42900 of 2006GR (CO)GSK 04.03.2009.