G.Ramakrishnan HC 262 v. The Superintendent of Police, Kamarajar District, Virudhunagar & Ors.

3. On the basis of the above said reasoning, the disciplinaryauthority namely, the Superintendent of Police, Kamarajar Districtimposed a penalty of removal of service by his order dated13.04.1993. 4. It is the grievance of the petitioner that the firstrespondent has ignored the fundamental principles to be followed inthe disciplinary enquiry and that the findings of the disciplinaryauthority are purely based on surmises and conjectures.5. The petitioner has further submitted that he preferred anappeal to the Deputy Inspector General of Police, to the secondrespondent, pointing out the various irregularities and submittedthat the finding of the disciplinary authority is not supported byany legal evidence. The second respondent by an order dated14.07.1993 has simply rejected the appeal by a non speaking order.The petitioner has further submitted that when the charges werepending, he was vindictively transferred and posted to serve underthe same Deputy Superintendent of Police, Arrupukkottai, on whosereport, he was placed under suspension and disciplinary proceedings.Therefore, the petitioner was apprehensive in joining Arrupukkottaifearing victimisation and requested the Superintendent of Police, topost him to some other division. His request was rejected.Thereafter, the Superintendent of Police marked him as absent from09.05.1992 and he was treated as deserter by an order dated03.07.1992. Though the petitioner appeared in person before theappointing authority, on 03.07.1992, before the expiry of two monthsperiod with a medical certificate and requested to take him back toduty, the first respondent refused to entertain the medicalcertificate and on the contrary, initiated a fresh disciplinaryproceedings in PR.34/92. An oral enquiry was conducted in respect ofcharges of absence without leave or permission and no order waspassed in the said proceedings and in the meanwhile, the firstrespondent has awarded a penalty of removal from service, in respectof the earlier charge of lying in a drunken mood in front of thehouse of the prohibition offender. 6. The first respondent in his counter affidavit has submittedthat petitioner was directly recruited as Grade I police constable on15.04.1974 and he was promoted as Head Constable on 01.07.1983.During his tenure, he had earned 46 rewards and suffered 6punishments. The petitioner was dealt with a charges under Rule 3(b)in PR.Nos.27/88, 33/92, 34/92 and 114/88, for chronic absent fromduty etc., 7. The respondents have submitted that on 21.09.1991 thepetitioner along with Police Constables Nos. 1733 and 1298 were onbandobust duty at Poulangal village, as per the directions ofInspector of Police where Milad-un-nabi festival was celebrated andreturned to duty only, at about 08.30 p.m. on the same day. The Sub https://hcservices.ecourts.gov.in/hcservices/ Inspector of Police, Paralachi Police Station along with police partymade a prohibition raid about 19.45 hours and found the petitionerlying in a drunken mood in front of the house of a prohibitionoffender, namely Sakkarai Thevar. The respondents have furthersubmitted that the above said facts were recorded in the GeneralDairy of the Keelgudi Out Post Police Station. The Sub Inspector ofPolice continued the prohibition raid and arrested the saidprohibition offender, Sakkarai Thevar S/o Periyandi Thevar ofMelakallakari village along with 10 litres of I.D. arrack andregistered a case in Paralachi Police Station in Cr.No.104/91.Thereafter, the Sub Inspector of Police, Paralachi police stationsent a detailed report to the Superintendent of Police, KamarajarDistrict, narrating the events that took place on 21.09.1991. As theallegations were serious, the petitioner was placed under suspension.The Deputy Superintendent of Police, Aruppukottai conducted apreliminary enquiry within three days and recorded the statements ofthe departmental witnesses. Based on the preliminary report, theSuperintendent of Police, Kamarajar District framed charges anddirected the Deputy Superintendent of Police, Aruppukottai to conducta detailed enquriy for passing final orders. 8. The respondents have denied the contentions that the SubInspector of Police, Paralachi Police Station was on enimical termsand there are no materials to prove that the Sub Inspector of Policehas any ill will or motive against the petitioner. The respondentshave further submitted that the preliminary enquiry was conducted ina proper manner and that the statements were recorded without anybias. The respondents have further submitted that as the departmentalwitnesses have clearly deposed that the petitioner was found in adrunken mood, lying in front of the house of the prohibitionoffender, Sakkarai Thevar, the question of producing the petitionerbefore the medical officer to find out as to whether the petitionerhad consumed liquor or not, does not arise. They have furthersubmitted that all the records pertaining to the charges wereproduced in the enquiry and that in the absence of any violation ofprinciples of natural justice, the findings rendered by thedisciplinary authority cannot be assailed on the ground of adequacy.Merely because the petitioner was not arrested and produced beforethe medical officer for obtaining a medical certificate to the effecthe had consumed liquor would not mean that enquiry conducted by thepreliminary enquiry officer was perfunctory. 9. The respondents have submitted that the statements given bythe Departmental witnesses amply prove that the petitioner had sleptin the house of the prohibition offender to cover up his illegal actand also tampered and fabricated a false record in the General Diaryof Keelgudi Out post on 21.09.1991. It is further submitted that thedefence evidence let in by the petitioner was only an attempt to savehis skin. The contradictions in the evidence of the departmentalwitnesses 2 to 5 were only minor and does not affect the case of the https://hcservices.ecourts.gov.in/hcservices/ department. Though the witnesses have bungled to certain extent inthe oral enquiry, their version before the preliminary enquiryofficer and the chief examination cannot simply be ignored and thefindings arrived at by the disciplinary authority and confirmed bythe second respondent, the appellate authority, cannot be said to beon the basis of surmises. Both the authorities have carefullyanalysed the evidence on record and found that the petitioner hadcommitted the delinquency. As the conduct of the petitioner isunbecoming a member of a disciplined force the punishment imposed iscommensurate. 10. As regards the transfer to Aruppukottai Sub Division, therespondents have submitted that the said transfer was only due toadministrative reasons and and no malafide can be imputed. Instead ofjoining the new station, the petitioner went on leave and after theexpiry of the same he did not report for duty at Aruppukottai on09.05.1992 and therefore for the absence without prior permission orleave from 09.05.1992, he was struck off as a deserter in accordancewith Police Standing orders 88(i) vide office order 647/92(C.No.G1/L.R.947/92) dated 03.06.1992. Subsequently, he was alsoproceeded departmentally for having absented from duty in anotherP.R.No.34/92 under Rule 3(b) of Tamil Nadu Police SubordinateServices (Discipline and Appeal) Rules 1955 and in view of thepenalty imposed in P.R.No.33/91, the proceedings initiated fordesertion is kept in abeyance. The respondents have submitted thatthere is no procedural irregularity in the conduct of the enquiry andsince adequate opportunity has been to put forth his defence, nointerference is called for and prayed for dismissal of the writpetition.11. Mr.S.J.Jagadev, learned counsel for the petitioner,referring to the minutes and the impugned orders made the followingsubmissions;That on, 21.09.1991, the petitioner was directed to attendbandobust duty at Keelgudi village by the Inspector of Police, andthis fact has been corroborated by two constables who were examinedas defence witnesses in the oral enquiry. The defence evidence hasnot been rebutted by the department. Excepting the Sub Inspector ofPolice, PW1, all other witnesses have admitted in the cross-examination, that they did not actually see the petitioner lying infront of the prohibition offender's house and that they have alsoclearly deposed that there was no light at the place, thedepartmental witnesses have also admitted that the extracts in therespective note books were made, from the General Diary entry made bythe Sub Inspector of Police who was enimically deposed against thepetitioner. According to the respondents, the petitioner was foundlying in front of the house of the prohibition offender in a drunkenmood. On the said day, PW1 was alleged to have conducted prohibitionraid along with other police constables. If the version of PW1 was https://hcservices.ecourts.gov.in/hcservices/ true , then the normal reaction of any police officer would be toarrest the offender and produce the said person before the medicalofficer to verify whether he was under the influence of liquor. Inthe absence of any medical evidence to prove that the delinquent wasunder the influence of liquor, there is absolutely no basis orsubstance, in framing the charges, that the petitioner was lying in adrunken mood in front of the house of the prohibition offender. Asper the contention of the department, the Sub Inspector of Police hadarrested Sakkarai Thevar, a prohibition offender, in whose house thepetitioner was alleged to have slept. If that be the case, the saidSakkari Thevar, could have been examined in the enquiry proceedingsalso. Having regard to the retraction of evidence let in by Pws 1, 3,4 and 5 in the cross-examination, the findings of the disciplinaryauthority that the petitioner was in drunken mood, solely based onthe statements obtained in the preliminary enquiry, without concretemedical evidence is perverse and therefore, it warrants interference. 12. According to the learned counsel for the petitioner, themedical officer is the competent authority to say whether a personhas consumed liquor or not. The preliminary enquiry officer did notquestion the Sub Inspector of Police as to why he did not produce thepetitioner before the medical officer to obtain a drunkennesscertificate. The petitioner was also not examined in the preliminaryenquiry nor the preliminary enquiry officer verified with the twopolice constables examined on behalf of the petitioner as to whetherthey had gone for bandobust duty as per the directions of theInspector of Police. Had the preliminary enquiry officer examined thedefence witnesses, DW1 and DW2, and verified the General Diary entryof Keelgudi Out Post, it could have been brought to the light thatthe whole episode projected by PW1 was purely motivated against thepetitioner. 13. Learned counsel for the petitioner further submitted that asregards tampering of General Diary by the petitioner, there is noevidence excepting the statement of PW1, and the other witnesses havewho had deposed that they merely copied the statement prepared bythe Sub Inspector of Police. Even assuming that there was tampering,it is incumbent on the part of the department to produce the GeneralDiary in the enquiry, to substantiate the charge. He furthersubmitted that even assuming without admitting if the petitioner, wasfound lying in a drunken mood in front of the house of SakkaraiThevar nothing prevented the Sub Inspector of Police and his policeparty to apprehend the petitioner, after entering in the GeneralDiary, at 20.00 hrs on 21.09.1991 and send him for medicalexamination.14. Learned counsel for the petitioner submitted that placingreliance on the statements obtained behind the back of the petitionerduring the preliminary enquiry, when the same were contradicted inthe oral enquiry, amounts to violation of the fundamental principle https://hcservices.ecourts.gov.in/hcservices/ and that in domestic enquiry, rules of substantial evidence have tobe applied and the appreciation of the evidence on the basis of theabove statement obtained during preliminary enquiry in preference tothe evidence recorded in oral enquiry is grossly illegal andtherefore, there is a procedural violation on the part of thedisciplinary authority. 15. Learned counsel for the petitioner further submitted thatthough Courts have consistently held that the power of judicialreview has to be exercised not to reappreciate the evidence andsubstitute the findings of the disciplinary and appellateauthorities, in the case on hand, in the absence any evidence ofdrunkenness and tampering with the General Diary, the Court has tosee as to whether there is any preponderance of probability inarriving at the said conclusion on the basis of the availableevidence. He submitted that, the finding of the enquiry officer oughtnot have been interfered with by the respondents 1 and 2. 16. Referring to the appellate authority order dated 14.07.1993,which is enclosed at page 107 of the typed set of papers, learnedcounsel for the petitioner submitted that, without due application ofmind, by observing that he had agreed with the findings of the oralenquiry officer and the punishing authority, he has simply rejectedthe appeal. Learned counsel for the petitioner submitted that theappellate authority has failed to consider the enquiry officer'sreport that the charges are disproved and therefore, the observationmade by the appellate authorities order itself reflects the total nonapplication of mind. He further submitted that none of the pointsraised in the memorandum of appeal were adverted to by the appellateauthority and that there is a failure to exercise the jurisdictionvested in him.17. Per contra, Mrs.Lita Srinivasan learned Government Advocateappearing for the respondents by referring to the enquiry proceedingsand the impugned order dated 13.04.1993 submitted that thedepartmental witnesses 1, 3, 4 and 5 have clearly deposed in the oralenquiry that the delinquent was lying in front of the house ofSakkari Thevar and that in the absence of eliciting any fresh pointsfrom the departmental witnesses, there is no reason to reject theirevidence. She further submitted that arresting the petitioner andproducing him before the medical officer is required only if therewas any intention to prosecute him for any offence under the penallaws. Since it was only a reprehensible conduct of a governmentservant in lying in front of a prohibition offender, non productionof the delinquent is not vital for the disciplinary proceedings.According to her, the said argument could be accepted only if thedepartment had initiated a prosecution for drunkenness. She furthersubmitted that strict proof of evidence, as contemplated for provingthe guilt of drunkenness, before the criminal Court is not required.If the delinquent was not in a drunken mood, there is no necessity to https://hcservices.ecourts.gov.in/hcservices/ lie down in front of the house of the prohibition offender and thatitself proved that the petitioner being a member of a disciplinedforce was not in a normal state of affairs on the said date.18. Learned Government Advocate further submitted that asregards the evidence let in on behalf of the department, no doubtthere were some minor contradictions here and there, but on thewhole, in the absence of any specific pleadings and proof of malafideagainst PW1, Sub Inspector of Police, and other prosecution witnesses2 to 5, who have clearly stated that the delinquent was lying in adrunken mood, the findings arrived at by the disciplinary authorityand confirmed by the appellate authority cannot be termed as perversewarranting interference. She further submitted that during the courseof enquiry, PW1, Sub Inspector of Police has clearly stated that hehad gone to Keelgudi Road Junction for arranging transportfacilities to take the delinquent to a medical officer and when hehad returned, the delinquent was not found in that place. Therefore,the learned counsel for the State submitted that steps were taken toproduce the delinquent before the medical officer, but the same didnot materialise as the petitioner was not found at the said place.19. As regards tampering and fabricating false records, theGeneral Diary of Keelgudi Out Post dated 21.09.1991, the learnedcounsel for the respondents submitted that the said misconduct hasbeen proved by oral and documentary evidence let in by PW8, sentryconstable, Keelgudi Out Post and Ex.P8 special report of PC 1708Kalichamy dated 23.09.1991. According to her, the raid conducted bythe police authority headed by the Sub Inspector of Police on21.09.1991, has amply proved by the oral evidence and the fact thatSakkari Thevar was arrested on the same day for commission ofprohibition offence clearly established that the delinquent wasconniving with the prohibition offenders and allowed the movement ofI.D. Arrack in Keelgudi Out Post police limit. Again referring tothe impugned order dated 13.04.1993 of the Superintendent of Police,learned counsel for the respondents submitted that the preliminaryenquiry has been conducted in a proper manner and there was nothingperfunctory in the enquiry. The statements given by the departmentalwitnesses, before the preliminary enquiry, were quite clear andtherefore the same can be relied on even though there are somecontradictions. As the delinquent, was a member of the disciplinaryforce, lying in a drunken mood in front of the house of a prohibitionoffender is a serious misconduct and therefore, the conclusionarrived at by the disciplinary authority and the appellate authoritythat he was not fit to continue in the uniformed service for themisconduct is in order. Therefore, no interference is called for inthe punishment order. 20. Heard the learned counsel for the petitioner and perusedthe materials on record. Before adverting to the facts of this case,it is relevant to extract few judgments of the Supreme Court on the https://hcservices.ecourts.gov.in/hcservices/ issue of Courts's power to reappreciate evidence in departmentalproceedings. In Gultheep Singh v. Commissioner of Police and othersreported in 1999 (2) SCC 10, at paragraph 9, the Supreme Court heldthat normally the Apex Court and the High Court will not interferewith the finding of fact recorded at the domestic enquiry, but if thefinding of guilt is based on no evidence, it would be perversefinding and would be amenable to the judicial scrutiny. Further, atParagraph 32, the Court held the reasonable opportunity means"hearing" in accordance with the principles of natural justice underwhich one of the basic requirement is that all the witnesses in thedepartmental enquiry shall be examined in the presence of thedelinquent who shall be given an opportunity to cross-examine them.21. In Apparel Export promotion Council and A.K.Chopra reportedin 1999 (1) CTC 316, the Supreme Court while considering the scope ofjudicial review held that Court cannot substitute its judgment forthat of the administrative authority. At para 16, 17, it is held asfollows:"16. The High Court appears to have over-looked the settled position that in departmentalproceedings, the Disciplinary Authority is thesole Judge of facts and in case an appeal ispresented to the Appellate Authority, theAppellate Authority has the power/andjurisdiction to re-appreciate the evidence andcome to its own conclusion, on facts being thesole fact finding authorities. Once findings offact, based on appreciation of evidence arerecorded, the High Court in Writ jurisdiction maynot normally interfere with those factual findingsunless it finds that the recorded findings werebased either on no evidence or that the findingswere wholly perverse and/or legally untenable. Theadequacy or in-adequacy of the evidence is notpermitted to be canvassed before the High Court.Since, the High Court does not sit as an AppellateAuthority, over the factual findings recordedduring departmental proceedings, while exercisingthe power of judicial review, the High Courtcannot normally speaking substitute its ownconclusion, with regard to the guilt of thedelinquent, for that of the departmentalauthorities. Even insofar as imposition of penaltyor punishment or penalty imposed by theDisciplinary or the Departmental AppellateAuthority, is either impermissible or such that itshocks the conscience of the High Court, it shouldnot normally substitute its own opinion and imposesome other punishment or penalty. Both the learned https://hcservices.ecourts.gov.in/hcservices/ Single Judge and the Division Bench of the HighCourt, it appears, ignored the well-settledprinciple that even though judicial review ofadministrative action must remain flexible and itsdimension not closed, yet the court in exercise ofthe power of judicial review is not concerned withthe correctness of the findings of fact on thebasis of which the orders are made so long asthose findings are reasonably supported byevidence and have been arrived at throughproceedings which cannot be faulted with forprocedural illegalities or irregularities whichvitiate the process by which the decision wasarrived at. Judicial Review, it must beremembered, is directed not against the decision,but is confined to the examination of the decisionmaking process..17. Judicial Review, not being an appeal froma decision, but a review of the manner in whichthe decision was arrived at, the Court whileexercising the power of judicial Review mustremain conscious of the fact that if the decisionhas been arrived at by the AdministrativeAuthority after following the principlesestablished by law and the rules of naturaljustice and the individual has received a fairtreatment to meet the case against him, the Courtcannot substitute its judgment for that of theAdministrative Authority on a matter which fellsquarely within the sphere of jurisdiction of thatauthority."22. In the light of the legal position, this Court deems it fitto examine the submissions of the parties in this writ petition. Theimputations levelled against the petitioner are;i)Reprehensible conduct and unbecoming of apolice officer in having been found lying ina drunken mood in front of the house of oneSakkarai Thevar, S/o Periandi Thevar, aprohibition offender at MelekallakariVillage on 21.09.1991 besides having allowedmovement of I.D. Arrack in the Keelkudi OutPost limit conniving with prohibitionoffenders; andii)Reprehensible conduct in tampering andfabricating a false record in the GeneralDiary of Keelkudi Out Post dated 21.09.1991. https://hcservices.ecourts.gov.in/hcservices/

23. Nine witnesses were examined on behalf of the department andas many as 10 documents were filed and the petitioner examined 3defence witnesses the charge can be spilt into three counts;i) lying in a drunken mood in front of the house of aprohibition offender on 21.09.1991;ii)allowed movement of I.D. Arrack in Keelgudi Out Post limitconniving with the prohibition offenders; and iii)reprehensible conduct in tampering and fabricating a falserecord in the General Diary at Keelgudi Out Post on 21.09.1991.24. Applying the test of preponderance of probability one has tosee as to whether the department has proved that the petitioner amember of a disciplinary force was lying in a drunken mood in frontof the house of a prohibition offender and that be the case, hedeserves no sympathy from the Court.25. On the contrary, if the finding rendered by the disciplinaryauthority is not supported by any evidence, or if it could be broughtunder the ambit of perversity, the same requires interference. Theconclusion of the disciplinary authority was mainly based on thestatements made in the preliminary enquiry and on consideration ofthe fact that the petitioner did not elicit any points from thosedepartmental witnesses to prove that he was not lying there. Further,the disciplinary authority has observed that if the delinquent hadnot been in a drunken mood, he would not have slept in front of thehouse of the prohibition offender. Yet another reason to arrive atthe conclusion is the production of departmental Exs.1, 3 to 6 and 9in the enquiry. These aspects weighed the mind of the disciplinaryauthority to disagree with the findings of the enquiry, and imposethe penalty. Thus it is evident from the impugned order that thedepartment has put the burden on the petitioner to prove that he wasnot lying in drunken mood in front of the house of a prohibitionoffender. The disciplinary authority, has rejected the deposition ofDW1 and DW2 on the ground that it was purely to save the skin of thedelinquent. It is not in dispute that the police party headed by theSub Inspector of Police had gone for a prohibition raid on 21.09.1991at 10.00 a.m. along with PW3 Grade I Police Constable and along withthe departmental witnesses Pws4, 5, 6 and 7 attached to ParalachiPolice Station. P.W.1, the Sub Inspector of Police, the core witnessin the enquiry proceedings has deposed that while conductingprohibition raid, he arrested one Subbiya Chettiar S/o Perumal at04.30 p.m. for possessing 10 litres of I.D. arrack and whileconducting raid in Melakallakarai Village; he found that thepetitioner, head constable, of Keelgudi Out Post, at 07.45 p.m.sleeping in front of a house of a prohibition offender and proceededto Keelgudi out Post police station to record the same and made aentry in the General Diary at 08.30 p.m. Thereafter, he had arrestedthe said prohibition offender with 10 litres of I.D. Arrack at 09.00 https://hcservices.ecourts.gov.in/hcservices/ p.m. and after reaching Paralachi Police Station, registered acriminal case against the prohibition offender and sent a detailedreport to the Superintendent of Police, then Kamarajar Districtthrough the Inspector of Police. He has further deposed that on24.09.1991, PW8, constable attached to Keelgudi out Post has given areport that the General Diary made on 21.09.1991 at 08.30 wasmissing. The report of the said police constable was also sent to theSuperintendent of police, Virudunagar. The Inspector of Police, PW2,within whose jurisdiction Paralachi Police Station was situated hasdeposed that the report of PW1, the Sub Inspector of Police,Paralachi Police Station was forwarded to the higher authorities,witnesses P.Ws.3 to 5 in their chief examination have deposed thatthey had accompanied the Sub Inspector of Police while conductingprohibition raid at the residence of Melakkallkari Village. The saidprohibition offender was not found in his house, whereas, thedelinquent/petitioner was found lying on a cart. Thereafter, the SubInspector of Police went inside the keelgudi out post police stationand came out within 5 to 10 minutes. PW3 in his chief examination,has not stated anything as to whether the petitioner was in a drunkenmood. So also PW4 has stated that he was not personally aware as towhether the petitioner was in a drunken mood. PW5 in his chiefexamination has deposed that the petitioner was lying in a cart 10feet away from the residence of the prohibition offender and that hedid not wake him up. PW6 another police constable attached to theparalachi police station, who was also one of the members of theraiding party, has deposed that raid was conducted in Melakallakarivillage and that he had stayed at Melakallakari main road with anaccused Perumal and the Sub Inspector of Police, another policeconstable returned with the prohibition offender Sarkkarai.Thereafter, all the police constables, proceeded to Keelgudi outPost excepting, PW1 Sub Inspector of Police. PW7, the last witnessexamined on behalf of the department to prove that the delinquent wasfound in a drunken mood, has deposed that he had not seen that thepetitioner lying in front of the house but he was only informed byPW1, the Sub Inspector of Police. To disprove the version of thedepartment and in support of the contention that the petitioner wason bandobust duty, as per the directions of the Inspector of Police,defence witnesses 1 to 3 of paralachi Police Station have stated thatthe delinquent was on bandobust duty in Poulangal village and thatthey have denied the allegations levelled against the petitioner.They have categorically deposed that there was no sign of drunkennessor intoxication. All the three witnesses have made necessary entriesin the personal note books maintained by them. Departmentalwitnesses 3 to 7 in the cross examination have stated that they havenot seen the delinquent sleeping in a drunken mood in front of thehouse of the prohibition offender, but they have seen a personsleeping in a civil dress. All of them have stated that at that time,they were some women at the residence of the prohibition offender andnobody attempted to wake up the said person, who was sleeping on thecart. It is also the version of the witnesses that there was poor https://hcservices.ecourts.gov.in/hcservices/ light on that day. The version of the witness as extracted in theenquiry proceedings is as follows;"j';fs; thf;FK:yj;jpy; jhd; rf;fiu tPl;LKd;Fonghijapy; J}';fpf; bfhz;oUe;jij nehpy; ghh;j;jhfbrhy;ypapUf;fpwPh;fsh my;yJ v!;.I. brhy;ypj;jhd; bjhpa[khvd;wjw;F Fonghijapy; J}';fpbfhz;oUe;jij nehpy; ghh;j;jjhfbrhy;ytpy;iy vdt[k;. J}';fpbfhz;oUe;j Ms; kg;oapy; ,Ue;jhuhmy;yJ rPUilapy; ,Ue;jhuh vd;wjw;F kg;oapy; ,Ue;jhh; vdt[k;.rf;fiu tPl;ow;F Kd; btspr;rk; ,Ue;jjh vd;wjw;Fkg;oapy; ,Ue;jhh; vdt[k;. rf;fiu tPl;ow;F Kd; btspr;rk; ,Ue;jjhvd;wjw;F ,y;iybadt[k;. v!;.I.me;j Mis beU';fpg;ghh;j;jhuhvd;wjw;F beU';fpg;ghh;f;fptpy;iy. RpwpJ J}uj;jpy; ,Ue;J ghh;j;jhh;vdt[k;. rf;fiu tPl;oypUe;J Ml;fs; btspna te;J j';fisghh;j;jhh;fsh vd;wjw;F ghh;j;jhh;fs; vdt[k;. fpuhkj;J Ml;fs;me;j ,lj;jpy; Todhh;fsh vd;wjw;F fpuhkj;J Ml;fs; Tltpy;iyvdt[k;. gLj;jpUe;j Mis Vd; vGg;gtpy;iy vd;wjw;F vGg;gtpUk;gtpy;iy vdt[k;/@ 26. The witnesses have deposed that they returned to KeelgudiOut Police Station, Sentry constable 1708, PW8 was there and none ofthe witness are not aware of what was recorded in the General Diaryentered by PW1, Sub Inspector of Police. Excepting the statement ofPW1, there is absolutely no oral evidence let in on behalf of thedepartment to prove that the person who was said to have been in thehouse of a prohibition offender was under intoxication or underdrunken mood. None of the witnesses either in the chief examinationor in the cross-examination have stated that PW1, Sub Inspector ofPolice had gone to Keelgudi road junction for arranging transportfacility to take the petitioner to the medical officer forexamination. Witnesses DW1 and DW2 constables attached to theParalachi police station were not examined by the preliminary enquiryofficer nor their note books were verified to find out as to whetherthere was any direction issued by the Inspector of Police, to dobandobust duty at Poulangal village. It is also seen from thedepartmental exhibits that the department had not produced theGeneral Diary of Keelgudi out post Police Station. Though Pws3 to 6have deposed that some people were present at the time of raid inSakkarai Thevar residence, no body was examined on behalf of thedepartment. The witnesses in their cross examination have reiteratedtheir statements in the preliminary enquiry. The only witness whospoke against the petitioner was PW1, Sub Inspector of Police and theenquiry officer on consideration of the evidence held the charge asnot proved. 27. In the above factual back ground, when a serious allegationis made against a member of a disciplined force that he was foundsleeping in front of a house of a prohibition offender, in a drunkenmood; what would be the normal reaction expected from the superior https://hcservices.ecourts.gov.in/hcservices/ officer conducting the prohibition raid along with his police partycould be considered as one of the facts to apply the principles ofpreponderance of probability. If the version of PW1, the SubInspector of Police was to be accepted, then any superior officer,who sees a police constable in front of the house of a prohibitionoffender would certainly wake him up, then record the symptoms ofdrunkenness and would send such persons to hospital to obtain adrunkenness certificate. From the evidence, there could be areasonable conclusion that there was a man found sleeping on the cartin front of the house of the prohibition offender, whether thatindividual was the petitioner. If any other supporting evidence toprove the charge of drunkenness, charge of drunkenness cannot simplybe proved without some evidence. None of the departmental witnessesexcept PW1 has deposed in the cross examination that the petitionerwas lying at the said place. As rightly contended by the learnedcounsel for the petitioner that in the absence of any evidence muchless medical evidence, the charge of drunkenness mood cannot be saidto have been proved by the department. However, a perusal of theimpugned order reflects that the oral testimony of PW1 that he goneto Keelgudi junction in order to arrange transport facility to takethe petitioner to medical officer, had not been corroborated by anyof the departmental witnesses either in the preliminary enquiry or inthe regular oral enquiry. The said fact has not been proved byproduction of General Diary entry in the oral enquiry. 28. It is well settled legal position, that preliminary enquiryis for the issuance of the charge memo and it cannot be the basis forarriving at the guilty of the person, against whom the charges arelevelled. The statements obtained in the preliminary enquiry have tobe furnished to the delinquent or he should be permitted to perusethe same so as to enable him to put forth his defence and crossexamine the witness who have given such statements. If thedisciplinary authority can simply rely on the statements made in thepreliminary enquiry report, notwithstanding the denial of giving suchstatements or failure to give evidence to support their version madein the preliminary enquiry, then the purpose of conduction a regulardepartmental enquiry, allowing the petitioner to cross examine thewitnesses would be meaningless. It is true that strict proof ofevidence as contemplated in criminal case is not required, but thereshould be some evidence. The findings rendered by the disciplinaryauthority are solely based on the statements recorded during thepreliminary enquiry and it was not on the basis of testimonyrecorded in the regular enquiry. If the witnesses contradict theirstatements in the regular departmental enquiry, such statementscannot be the basis for conclusion, in the absence of some evidence.Though adequacy of evidence cannot be permitted to be canvassed, butat the same time, this Court is of the view that conclusion on thebasis of just a solitary statement would result in injustice to adelinquent and that would not be fair and reasonable approach indeciding guilt of a delinquent in the departmental enquiry. That https://hcservices.ecourts.gov.in/hcservices/ would make the regular departmental enquiry of examining the otherwitnesses to support the charge would be a empty formality. No doubtthe test of proof in a criminal charge and that of the departmentalenquiry are entirely different. To arrive a finding in a disciplinaryproceedings, there must be some evidence adequacy of which cannot becanvassed. In the case on hand, there is absolutely no evidence toprove that the delinquent was in a drunken mood and no cogentreasons have been given by the disciplinary authority as well as bythe appellate authority in rejecting the evidence let in by thedefence.29. PW1, the Sub Inspector of Police has deposed that he madeentries in Keelgudi police General Diary at 20.30 hrs. Thedepartmental witnesses 2 to 7 have stated that they stood outsidekeelgudi out post police station and they were not aware of what waswritten in the General Diary. PW1, in his evidence has stated that on24.09.1991, police constable Kalichamy gave a report that the entriesmade on 21.09.1991 in Keelgudi out post was found missing and hisreport was forwarded to the Superintendent of Police. PW8, in hiscross-examination has stated that the report was not written on hisown accord and that he merely wrote as per the dictation of SubInspector of Police. It is not the case of PW8, that he saw thegeneral diary entry made by the Sub Inspector of Police was missingand therefore he gave a report on his own. If the General Diary entrywas torn by the delinquent/petitioner nothing prevented thedepartment in producing the same before the enquiry officer.Interestingly, the Deputy Superintendent of Police, Aruppukottai,PW9, the preliminary enquiry officer in his oral evidence has statedthat he had not seen the General Diary of Keelgudi out Post policeStation and there was no adverse report about the conduct of thepetitioner from the General Public. Therefore going through therecords, it is evident that the finding of fact recorded by thedisciplinary authority is not supported by any much less acceptableevidence. In this factual background, I am of the view that there isa patent error committed by the authorities in giving weightage tothe statements recorded in the preliminary enquriy, though it is notsupported in the oral enquiry. In these circumstances, I have noother alternative to come to the conclusion that the findingsrecorded by the disciplinary proceedings, which is confirmed by theappellate authority, are based on no evidence perverse, and legallyuntenable and therefore the punishment imposed by the authority hascertainly resulted in miscarriage of justice. The appellate authoritywhile observing that he has agreed with the finding of the oralenquiry officer as well as punishing authority has exhibited lack ofapplication of mind, as the finding of both the authorities areentirely different, the enquiry officer exonerating the petitioner,and the disciplinary authority disagreed with the findings of theenquiry officer and imposed the penalty. Excepting to state that hehas concurred with the findings, he has not adverted to any groundsmade in the appeal. There must be some material to show that he has https://hcservices.ecourts.gov.in/hcservices/ considered the facts are established, evidence recorded in the oralenquiry is sufficient or not. As the appellate authority is the finalfact finding authority under the rules, and considering the limitedscope of judicial review, he ought to examine the important factorsto be considered in Rule 6 of the Tamil Nadu Police SubordinateServices (Discipline and Appeal Rules) 1955. The discretionexercised by the appellate authority should be reflected in theorder. Mere making a statement that he had gone through the findingsand minutes in the appeal petition and agreed with the finding doesnot satisfy the requirements of exercise of appeal jurisdiction.Therefore, in view of the above, I am of the considered view thatthere is a procedural irregularity as well as perversity in thefinding arrived at by the authorities in concluding the guilt of thepetitioner. Hence the writ petition is allowed. No costs.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarjikrTo1.The Superintendent of Police, Kamarajar District, Virudhunagar.2.The Deputy Inspector General of Police, Ramanathapuram.3.The Director General of Police, Madras-600 004.W.P.No.15410 of 2006rsn [co]gkg/11.7