M.Appukuttan v. The Superintendent of Police, Tirunelveli District, Tirunelveli

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 18.12.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.3753 of 2006(O.A.No.6723 of 1998)M.Appukuttan.. Petitioner Vs.1.The Superintendent of Police, Tirunelveli District, Tirunelveli.2.The Deputy Inspector General of Police, Tirunelveli.. RespondentsThis writ petition is preferred under Article 226 of theConstitution of India praying for the issue of a writ of certiorarito set aside the order of the first respondent made in PR.2/98,dated 24.4.1998 and consequently, to set aside the order of thesecond respondent made in C1/AP39/98, dated 24.6.1998.For Petitioner : Mr.P.V.S.GiridharFor Respondents : Mr.R.Neelakantan, GAORDERHeard both sides. The petitioner, who was a Grade I PoliceConstable, filed the O.A.No.6723 of 1998 before the Tamil NaduAdministrative Tribunal, seeking to set aside the order dated24.4.1998 passed by the first respondent, the Superintendent ofPolice, Tirunelveli District and confirmed by the order, dated24.6.1998 by the second respondent. 2.In view of the abolition of the Tribunal, the matter stoodtransferred to this court and was renumbered as W.P.No.3753 of 2006.On notice from the Tribunal, the first respondent has filed a replyaffidavit, dated 17.12.1998. The original file was also circulatedby the learned Government Advocate for perusal by this court.3.The brief facts leading to the dismissal of the petitionerare as follows: https://hcservices.ecourts.gov.in/hcservices/ The petitioner was working as a Grade I Police Station atMoondradaippu Police Station from 26.7.1997. He was on Roll Call on22.12.1997 at 17.00 hours. The petitioner did not turn up for duty,but he later appeared before the station Sub Inspector in a drunkencondition at 19.30 hours. He was unable to perform the stationroutine duty. Therefore, the Sub Inspector of Police along with twoother police personnel, produced the petitioner before the DutyMedical Officer, Tirunelveli Medical College Hospital with a memofor examination. When the Medical Officer asked for the petitionerto give his urine and blood samples, the petitioner refused to doso. Therefore, the Medical Officer gave a certificate to the effectthat the petitioner had consumed liquor, but not under itsinfluence. A case under Section 4(1)(j) of the Tamil NaduProhibition Act was registered against the petitioner inMoondradaippu police station.4.The petitioner was arrested on 22.12.1997. The petitionerjumped his bail on 23.12.97. Thereafter, he was placed undersuspension pending disciplinary action. A charge memo in PR No.2/98was given to the petitioner, charging him with neglect of duty inhaving absented on 22.12.1997 and also found to be in a drunkenmood. The petitioner acknowledged the charge memo. The EnquiryOfficer, namely Deputy Superintendent of Police, Valliyoor drew upthe minutes and held the petitioner was guilty of charges vide hisreport, dated 5.3.1998. The petitioner was directed to give furtherrepresentation on the enquiry report. After considering hisexplanation on the enquiry report, the first respondent imposed thepunishment of dismissal by an order, dated 24.4.1998. The petitionerpreferred an appeal to the second respondent on 11.5.1998. Theappellate authority rejected his appeal by an order, dated24.6.1998. 5.The contention raised by the petitioner was that the enquirywas not in accordance with law. It was conducted in a prejudicialmanner. No valid opportunities were given. P.W.1, the MedicalOfficer though stated that there was smell of alcohol in the breathof the petitioner, the speech, gait and gestures of the petitionerwas normal. Therefore, it was stated that though he may haveconsumed liquor, he was not under its influence. Therefore, thecharge that the petitioner was in a drunken condition cannot be saidto have been established. P.W.1 also opined that smell of liquor cancome if any other alcohol based medicine/tonic was taken and thatfact was not considered. There were contradictions in the evidenceof witnesses. It was also stated that on 22.12.1997, there were twoother persons, who also did not attend the Roll Call, but thepetitioner alone has been singled out. 6.Mr.P.V.S.Giridhar, learned counsel for the petitioner placedreliance upon the judgment of the Rajasthan High Court in CharanjeetSharma Vs. State of Rajasthan and another reported in RLW 2008 (3)Raj 2634. In that case, the Rajasthan High Court in paragraph 9 heldas follows: https://hcservices.ecourts.gov.in/hcservices/ "9.Obviously, the petitioner was sent tothe doctor for examination so as to ascertainthe fact as to whether he had actually consumedthe liquor and was in intoxicated condition. Itgoes without saying that in order to establishthe diagnosis of drunkenness, the doctor shouldcarefully examine the person concerned andshould collect the blood and urine samples forchemical analysis. Besides the odour of alcoholin the breath, there are many more signs whichare required to be noticed while examining theperson said to be in the drunken condition, suchas, loss of clearness in intellect and controlof himself, unsteady gait, dry and sticky lips,congested eyes, sluggish and dilated pupils,increased pulse rate, unsteady and thick voiceetc. But, it appears that none such sign havebeen noticed by the doctor while examining thepetitioner. If, the doctor was to give hisfinding only on the basis of the odour ofalcohol in the breath of the petitioner then,there was no necessity even to refer thepetitioner for examination to the doctor. Thedoctor's report solely based on alleged odour ofliquor emitting from the mouth the petitioner,cannot be made basis for holding him guilty,more so, when all other prosecution witnessesexcept the complainant Mr.Ramesh Chandra Sharma,have categorically stated that the petitionerdid not appear to be in drunken condition. Thefinding of guilt recorded by the inquiry officerconcurred by the Disciplinary Authority,ignoring the statements of the witnessesattributing towards the innocence of thepetitioner, cannot be sustained. It is true thatin the matter of disciplinary proceedings, thestrict rules of evidence do not apply, thecharges are not required to be proved beyonddoubt, and this Court in exercise of its extraordinary jurisdiction cannot sit in appeal overthe findings arrived at by the DisciplinaryAuthority but, in the instant case, a perusal ofthe material on record goes to show that thecharge of the petitioner being found inintoxicated condition cannot be said to beproved against him even on the yardstick of theproof on the basis of preponderance of theprobabilities."7.Therefore, the learned counsel for the petitioner submittedthat such foolproof test was not conducted in respect of thepetitioner. It is one thing to state that a person is smells ofliquor but the other thing that person is charged for being drunken https://hcservices.ecourts.gov.in/hcservices/ in a public place which will come within Section 75(1)(a) of theTamil Nadu City Police Act. In the present case, even the evidenceof P.W.1 does not support the case of the respondents.8.In opposition to the said contention, in paragraph 4 of thereply affidavit, it was stated that the petitioner did not produceany certificate that he had consumed some tonic for his allegedstomach ache. Therefore, he cannot put forth such a defence.Further, in paragraph 5 of the reply affidavit, it was averred asfollows:"5....The First Respondent has passed orderdismissing the applicant from the police forceafter carefully analysing all theaspects/recorded evidences which have come tolight through the prosecution documents i.e.P.W.1 to P.W.6. During the Medical Examination,the applicant did not co-operate with theMedical Officer by providing his urine and bloodfor medical test and he has himself admitted hisdrunkenness indirectly. Hence the MedicalOfficer came to the conclusion that theapplicant was under intoxication and Drunkennesscertificate was issued by him. It is thereforerespectfully submitted that the dismissal orderis quite commensurate to the delinquencycommitted by the applicant, being a policeofficer in a disciplined force."9.The petitioner being a member of a disciplined force, failedto be present during his Roll call. He also misbehaved himself whichled the respondents taking the petitioner to a Doctor. The Doctorhad certified that there was a smell of alcohol and that thepetitioner had refused to give blood and urine samples. Therefore,the petitioner cannot make use of his own defiance as a ground toplead innocence. On the contrary, the respondents have taken allsteps possible to hold the petitioner guilty. The contentions raisedby the petitioner cannot be accepted. The contention raised by thepetitioner in attempting to make distinction between drunkenness andsmell of liquor may be relevant in a criminal case. 10.The Supreme Court in State of Meghalaya and others Vs.Mecken Singh N.Marak reported in 2008 (7) SCC 580 has held thatpunishment unless shockingly disproportionate cannot be interferedwith and the judicial review conferred on the court is very limitedand restricted to exceptional cases.11.The Supreme Court in Chairman & Managing Director, V.S.P.and others Vs. Goparaju Sri Prabhakara Hari Babu reported in 2008(5) SCC 569 held that the court has got only a limited jurisdictionto go into the validity of the proportionality and a well reasonedorder of the departmental authority cannot be interfered with on thebasis of sympathy and sentiments. Once procedural formalities arecomplied with by the authorities, the courts should ordinarily not https://hcservices.ecourts.gov.in/hcservices/ disturb the penalty. 12.In the light of the above, the writ petition will standdismissed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.vvkTo1.The Superintendent of Police, Tirunelveli District, Tirunelveli.2.The Deputy Inspector General of Police, Tirunelveli1 cc to M/s. P.V.S. Giridhar and Sai Associates, SR. 70055W.P.NO.3753 of 2006MDR (CO)kk 29/12