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PETITIONER: THE DIRECTOR GENERAL OF POLICE, & ORS.

       Vs.

RESPONDENT: G.DASAYAN

DATE OF JUDGMENT:       28/01/1998

BENCH: S.C. AGRAWAL, K. VENKATASWAMI, A.P. MISRA

ACT:

HEADNOTE:

JUDGMENT:                THE 28TH DAY OF JANUARY, 1998. Present:                Hon’ble Mr. Justice S.C.Agrawal                Hon’ble Mr. Justice K. Venkataswami                Hon’ble Mr. Justice A.P.Misra A. Mariarputham,  Adv. for M/s. Arputham, Aruna & Co., Advs. for the appellants. S. Muralidhar, Adv. for the Respondent                       J U D E M E N T      The following Judgment of the Court was delivered: K. Venkataswami, J.      Speical leave granted.      Heard counsel on both sides.      The respondent  was  working  as  Police  Constable  in Kanyakumari  District,   Tamil  Nadu.   He   was   proceeded departmentally for the following charges:-      "(i)   Highly reprehensible conduct      in having  demanded and  exrtracted      gold jewels  weighing 31 grams from      one  T.Pitchandi   Asari,   Thangam      Jewellers, Alexandria  Press  Road,      Nagercoil,   under    coercion   on      28.5.1983  with  other  members  of      crime detective party.      (ii)   In having  not   issued with      any receipt to the said T.Pitchandi      Asari, or  in not having seized the      said jewells  under proper mahazar;      and      (iii)  In  not  having  showed  the      jewels  in   any   of   the   crime      investigated by the Crime Detective      Party.      II.    Highly reprehensible conduct      as  a  member  of  Crime  Detective      Party;      (i)  In not having shown the arrest      of one  Hentry  Victor  and  Shahul      Hameed concerned in CCS. No. 257/83      under Section 547/380 IPC which was

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    registered  on   12.5.1983  on  the      complaint  of   T.   Dennison   and      keeping the  accused for  number of      days without any record;      (ii)   In having  not recovered the      property under  proper mahazar  and      not  properly   accounted  for  the      cloths  and  money  recovered  from      various places in Tamil Nadu.      (iii) In  having charged the actual      properties  recovered  in  Cr.  No.      257/83 under  Sections 457, 380 IPC      by changing the high quality cloths      into  cheaper   quality  of  cloths      while sending  them in  Form 95  to      the   Court   of   Chief   Judicial      Magistrate, Nagercoil,  the receipt      of  which   was   acknowledged   on      22.7.1983 in R.P. No. 490 pf 1983."      The respondent  was tried along with one Head Constable and two  Police Constables.  Regular enquiry was held by the Deputy  Superintendent  of  Police,  Thuckalay  (Kanyakumari District), who  found that  the first count of the charge is proved but  not  the  second  one.  In  the  meanwhile,  the respondent was  transferred  to  Tirunelveli  District.  The other  co-deliquents   were  also   transferred  to  another neighbouring District.  The Disciplinary  Authority for  the respondent, at  the relevant time, was the Superintendent of Police, Tirunelveli,  who concurred  with the  Report of the Enquiry Officer and imposed the punishment of dismissal from service by  an Order  dated 21.4.87. The appeal filed by the respondent  to  the  Deputy  Inspector  General  of  Police, Tirunelveli, was  dismissed on  9.12.87. The Review filed to the Director General of Police was also rejected on 5.2.90.      Therefore,  the   respodent  moved   the   Tamil   Nadu Administrative Tribunal,  Madras by  filing O.A.  NO. 446 of 1991. The  Tribunal by  an order  dated 6.5.96 set aside the order of  dismissal mainly  on the  ground that  the Enquiry Report was not furnished to the respondent herein before the impugned order  was passed  and that the Enquiry  Report was not furnished  to the  respondent herein before the impugned order was  passed and  that the  authority competent to pass the order  of dismissal  was the  Superintendent of  Police, Kanyakumari District.  Where the respondent was working when the charge  was  framed.  According  to  the  Tribunal,  the transfer was  for administrative purpose pending Enquiry and he should  have been  re-transferred after  the enquiry  was over and  the final  order should  have been  passed by  the Superintendent of  Police, Kanyakumari  District. One  other ground also  was given by the Tribunal for setting aside the order of dismissal, namely, that the co-delinquents were let off without  any punishment  except the  Head Constable, who was only  compulsorily  retired.  Though  the  charges  were identical,  the   punishment  imposed,   according  to   the Tribunal, being discriminatory cannot be sustained.      Aggrieved by  the order  or the  Tribunal, the  present appeal  by   special  leave   has  been   preferred  by  the appellants.      Mr. Mariarputham,  learned counsel  for the appellants, submitted that  the first ground of the Tribunal for setting aside the  order of  dismissal is  no longer  sustainable in view of  the judgment  of this  Court in  Managing Director, ECIL, Hyderabad  & Ors.  Vs. B. Karunakar $ Ors. (1993)4 SCC 727. In  that case,  a Constitution Bench of this Court held that the ruling in Ramzan Khan’s  case. Therefore, the order

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passed in  this case  being on  21.4.87 the law laid down in Ramzan Khan’s  case will have no application and, therefore, the order of the Tribunal on that score cannot be supported.      On the second ground that the Superintendent of Policy, Tirunelveli  District,  was  not  the  competent  authority, learned  counsel  for  the  appellants  submitted  that  the Tribunal was not right in assuming that the transfer was for administrative purpose and during the pendency of Enquiry as the Police Standing Orders enabled the transfer of Constable of one  District to  another District.  The relevant PSO was produced which  reads that  a Police  Constable is liable to serve anywhere  in the  State. The  order of  transfer  from Kanyakumari  District   to  Tirunvelveli   District  at  the relevant time  was not challenged. Therefore, this ground of the Tribunal  in setting aside the order of dismissal cannot also be  supported. The third ground that the co-delinqunets except the  Head Constable  were let o ff though the charges were identical,  it is stated by the learned counsel for the appellants that  the Disciplinary  Authority did  not  agree with the findings of the Enquiry officer so far as those two delinquents were concerned. However, the Head Constable, Who was also charged along with the respondent, was compulsorily retired by the Disciplinary Authority.      Mr.  Murlidhar,   learned  counsel  appearing  for  the respondent, while  agreeing  with  the  contentions  of  the learned counsel for the appellants on the first two grounds, submitted that  the order of dismissal at any rate cannot be sustained and if at all an order of compulsory retirement as was made  in the  case of  the Head Constable, who was tried along with the respondent, has to be imposed.      We have  perused the  order of  the  Tribunal  and  the relevant documents.  We find  merit in  the arguments of the learned counsel  for the appellants. A t the same time, were are of  the view  that as pointed out by the learned counsel for  the   respondent  that   a  punishment   of  compulsory retirement in  the case of the respondent as well would meet the ends  of justice  on the facts and circumstances of this case.      Accordingly, we set aside the order of the Tribunal and in  the   place  of   order  of   dismissal  passed  by  the Disciplinary Authority,  the order  of compulsory retirement is  substituted.   The  appeal   will  stand   disposed   of accordingly with no order no order as to costs.