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PETITIONER: GOVT. OF TAMIL NADU & ORS.

       Vs.

RESPONDENT: S. VEL RAJ

DATE OF JUDGMENT:       19/12/1996

BENCH: S.C. AGRAWAL, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI,J.      This appeal was heard along with Civil Appeal No. 41847 of 1994  but we  are disposing  of the  same by  a  separate judgment.      The respondent is a Head Constable and as such a member of Tamil  Nadu Police  Subordinate Service. O 20.7.84 he has served with a charge memo for an act of misconduct committed on  7.7.84   and  a   departmental  enquiry  was  thereafter initiated against him. The charge was held proved and by way of punishment  he was  reverted to the lower grade, that is, from Head  Constable to Police Constable Grade I he appealed against that  order. As  the appellate  authority was of the view that  the punishment  imposed upon  the respondent  was very lenient  it issued  a  show  case  notice  to  him  for enhancement of  the penalty.His  appeal was dismissed and by way     of  punishment  he  was  compulsorily  retired.  The respondent then  filed a  writ petition in the High Court of Madras challenging  not only the punishment imposed upon him but  also  initiation  of  the  enquiry  against  him.  That petition was  transferred to  the Tamil  Nadu Administrative Tribunal and was numbered as T.A. No. 271 of 1992.      The charge against the respondent was that on 7.7.84 he was deputed  to  attend  a  case  pending  before  the  sub- Divisional judicial  Magistrate, Usilampatti.  He  left  the police station  and returned  to it  at  about  8  P.M.  and reported before the sub-Inspector of Police who was incharge of Police  Station. At  that time  he was  drunk and  was in ’mufti’. During  the enquiry  evidence was led to prove that the respondent  was in  a drunken  condition,  that  he  had admitted before  the sub-Inspector  of Police  that  he  had admitted before  the Sub-Inspector  of Police  that  he  had consumed ’arrack’ and that he was in ’mufti’ at that was not disputed but an attempt was made in cross-examination of the witnesses by  way of suggestions that he was often suffering from stomach  pain and was, therefore, taking medicine known as B.G.  Phos  and  that  if  sufficient  quantity  of  that medicine is  consumed there  would be  smell of  alcohal and eyes would become reddish.      The  Tribunal  held  that  initiation  of  the  enquiry

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against the  respondent was  bad because the charge memo was issued by the Deputy Superintendent of Police who was not an appointing authority  and it  is a well-settled principle of law that only the appointing authority can take disciplinary action and  that the  said power  cannot  be  delegated.  On merits, the  Tribunal considered  the evidence  as if it was sitting  in   appeal  and   held  that   the  evidence   was inconsistent and  it was  not proved "beyond all doubts that he had  consumed  prohibited  liquor".  It  also  held  that neither consumption  of alcohol  by a  member of  the police force nor appearance in ’Mufti’ in the police station can be considered as  an act  of misconduct.  It also held that the appellate authority  had not  conducted the  enquiry in  the prescribed  manner  before  enhancing  the  punishment  and, therefore allowed the application, quashed the impugned oder of punishment  and directed the authorities to reinstate the respondent with all consequential benefits.      It  was  contended  by  the  learned  counsel  for  the appellant-state that  the Tribunal has committed an error of law in  holding  that initiation of the disciplinary enquiry against the  respondent was  not lawful.  He submitted  that there is  nothing  in  the  Tamil  Nadu  Police  Subordinate Services that  a charge  memo has  to be  issued only  by an appointing authority  or an authority holding a higher rank. This point  is now  covered by  the decision  of this  Court Inspector General  of Police  vs. Thavasiappan  (1996) 2 SCC 145. We,  therefore, hold  that the  Tribunal was  wrong  in holding  that   there  was   not  valid  initiation  of  the disciplinary proceeding against the respondent.      The learned counsel for the appellant was also right in his   criticism   that   the   Tribunal   transgressed   its jurisdiction in  examining the  evidence as  if  it  was  an appellate authority. The law on this point is also not well- settled. The  Tribunal obviously  committed a mistake in re- examining the  evidence and  holding that it did not deserve to be  accepted because  of the inconsistencies therein. The Tribunal was  not holding  a criminal  trial and, therefore, ought not  to have exonerated the respondent by holding that i was  not proved " beyond all doubts that the applicant had consumed prohibited  liquor". The  finding recorded  by  the Enquiry officer  and confirmed  by the  appellate  authority were based  upon the  evidence led during the enquiry and it was not  even contended that the said finding were perverse. it was,  therefore, not  open  to  the  Tribunal  to  record contrary findings  and hold  that  the  charge  against  the respondent was not proved.      The Tribunal  was also  wrong in  holding that what was alleged against  the respondent  did not amount to an act of misconduct. Under  Rule 2  of the  rules punishment  can  be imposed  upon   a  member  of  the  service  ’for  good  and sufficient reason’.  Therefore, the  Tribunal ought  to have examined the  case from  that angle.  the respondent when he appeared before  the P.S.I  at 8 P.M. on 7.7.84 was on duty, He and  returned to  the police station for reporting to the PSI as to what he had done regarding the directions given to him earlier.  At  that  time  he  was  found  in  a  drunken condition and  was in  ’Mufti’. He  had even admitted before the P.S.I. that he had consumed ’arrack’ and it was for that reason that  he was  smelling of alcohol. I this context, it was required  to be  considered whether  there was ’good and sufficient reason’  for initiating a disciplinary proceeding against  him  and  imposing  the  punishment  of  compulsory retirement. The  police force  has to be a disciplined force and a  member of  the  police  force  has  to  behave  in  a disciplined manner  particularly when  he  is  o  duty.  The

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respondent even   though  he was  sent for official work and was on duty returned to the police station in ’mufti’ and in drunken condition  after consuming ’arrack’. He had returned to the  police station  to report to his superior officer as to what  happened to  the work  which was  entrusted to him. Under these  circumstances, his  behavior has to be regarded as an act of gross misconduct. It is difficult to appreciate how the  Tribunal could  persuade itself  to take a contrary view. In view of the facts and circumstances of this case it is not possible to say that the punishment which was imposed upon him was highly excessive. The appellate authority after considering his  provious record  and after  giving  him  an opportunity to  show cause  against the proposed enhancement had passed  the order of punishment. Though the Tribunal has held that  the enquiry  was not  conducted by  the appellate authority as  required by  the rules it has not been pointed out which  requirement of  the rule  had not  been  complied with. The Tribunal was, therefore, wrong on this count also. In the  result, this  appeal is allowed and the order passed by the  Tribunal is  quashed and  set aside.  In view of the facts and  circumstances of Th case, however, there shall be no order as to costs.