19 December 1996
Supreme Court


Case number: Appeal Civil 4187 of 1994






DATE OF JUDGMENT:       19/12/1996




JUDGMENT:                       J U D G M E N T      NANAVATI, J.      The respondent  was appointed  as  a  Sub-Inspector  of Police in  1962. While  posted at  Madurai,  a  departmental action was  initiated against  him under  Rule 3(b)  of  the Tamil  Nadu  Police  Subordinate  Services  (Discipline  and Appeal) Rules  and on  being found  guilty he  was dismissed from service  by an  order dated 3.11.79. That order was set aside in  appeal by  the Inspector  General of Police on the ground that in conducting the inquiry there was violation of the prescribed  procedure. The  enquiry officer was directed to proceed  further with  the inquiry  from the stage it was found to be bad.      As the  order of dismissal was set aside the respondent was reinstated  in service.  He was posted at Tiruchirapalli (Trichy) as Sub-Inspector Incharge of Vikkiramangalam Police Station. He  joined the  duty  at  that  Police  Station  on 12.11.80 and  proceeded on  casual leave  from  13.11.80  to 19.11.80. Instead  of resuming  duty on  20.11.80 he applied for medical  leave  and  thereafter  went  on  extending  it continuously till he was placed under suspension on 14.6.81. As he  was remaining  continuously absent  on the  ground of health, the  Superintendent of Police, Tiruchirapalli by his memo  dated  22.4.81  directed  him  to  appear  before  the District Medical  Officer for  being  presented  before  the Medical Committee  for examination as regards his fitness to return to  duty. He  did  not  appear  before  the  District Medical Officer  on that  day. The Superintendent of Police. therefore, again  by a  memo dated  4.6.81 directed  him  to appear before  the District  Medical Officer  for  the  said purpose. That  memo was served upon the respondent on 4.6.81 itself. The  District Medical  Officer, Trichy  by a  letter dated 4.6.81  requested  the  Superintendent  of  Police  to direct the respondent to appear before the Medical Board at Government Headquarters  Hospital, Trichy  on 9.6.81  at  10 hours for  medical  examination.  A  communication  to  that effect  was   also  served   upon  the  respondent.  As  the respondent did  not appear for medical examination on 9.6.81 the District  Medical Officer  by his  letter dated  10.6.81 informed the  Superintendent of  Police about non-compliance



of  the   said  directions.   His  non-appearance  and  non- compliance with  the order  of the  Deputy superintendent of Police  were   reported  to  Inspector  General  of  Police. Considering it  as an  act of  misconduct the respondent was suspended  on  14.6.81  and  a  departmental  proceeding  by issuing a  charge-memo was initiated against him on 27.7.81. The said charge-memo could not be served upon the respondent earlier than  2.11.81 as  he was  not available. The enquiry officer concluded  the inquiry  and found  him guilty and on the basis  thereof an  order of dismissal was passed against him by the disciplinary authority on 24.5.84.      He challenged  that order of dismissal by filing a writ petition in  the High  Court of  Madras. That  petition  was subsequently transferred  to the  Tamil Nadu  Administrative Tribunal and  was numbered  as  T.A.  No.606  of  1991.  The respondent challenged  his dismissal  on the ground that the inquiry  and  the  dismissal  order  were  vitiated  as  the disciplinary proceedings  were initiated  against him  by an officer subordinate  in rank  to the disciplinary authority. It was  also challenged  on the ground that by not appearing before the  Medical Board  the respondent  cannot be said to have disobeyed  the order  of the  superior authority and in any case,  that did  not amount  to a  misconduct  of  grave nature. It  was also  challenged  on  the  ground  that  the enquiry officer,  by denying  him  the  documents  which  he wanted, deprived  him of  a reasonable opportunity to defend himself. The  Tribunal relying  upon its  earlier judgments, held that  the disciplinary  authority alone  can initiate a disciplinary proceeding  against a  Government servant under Rule 3(b)  of the  said Rules and as the charge-memo in this case  was   issued  by   an  officer   subordinate  to   the disciplinary authority  the entire  disciplinary  proceeding stood vitiated.  The Tribunal  also held  that the applicant wanted a  railway warrant to enable him to appear before the Medical Board at Trichy and as the same was not given to him he cannot  be said to have disobeyed the order of a superior authority. For that reason and also on the ground of absence of any provision under which non-appearance before a Medical Board can be considered as an act of misconduct the Tribunal held that  there  was  no  justification  for  initiating  a disciplinary proceeding  against him. The Tribunal also held that the  enquiry officer by denying his request to have the documents which  he had  asked for and for perusal of a file had deprived  him of  a  reasonable  opportunity  to  defend himself. The  Tribunal also  held that  as the applicant was not given  a copy of the inquiry report and as the order was passed without giving him a further notice his dismissal has to be  regarded as bad. The Tribunal, therefore, quashed and set aside the order of dismissal.      The State has, therefore, filed this appeal The learned counsel for  the State  submitted that the view taken by the Tribunal that only the disciplinary authority can initiate a departmental proceeding  against the  delinquent  Government servant, is  contrary to  the law  laid down  by this Court. This point  is covered  by the  decision of  this  Court  in Inspector General  of Police  vs. Thavasiappan  (1996) 2 SCC 145 and,  therefore, the  contrary finding  recorded by  the Tribunal will  have to be set aside. The learned counsel for the respondent has fairly conceded this position.      The view taken by the Tribunal as regards the effect of non-furnishing a copy of the enquiry report is also contrary to the  law declared  by this Court. In this case, the order of dismissal  was passed on 24.5.84. Therefore, the Tribunal could not  have nullified  the order of dismissal in view of the judgments  of this  Court in  Union of  India vs.  Mohd.



Ramzan Khan  1991 (1)  SCC 588  and Managing Director. ECIL. Hyderabad vs.  B. Karunakar  1993 (4)  SCC 727. The law laid down in  Mohd. Ramzan  Khan’s case  (supra) has  prospective operation only.      The third  reason given  by the Tribunal that there was no justification  for initiating  a disciplinary  proceeding against  the   respondent  is   also  not  sustainable.  The proceeding was  initiated against  the  respondent  for  his indisciplined conduct in disobeying a lawful order passed by his superior  officer who  was competent  to  pass  such  an order. The  respondent was transferred from Madras to Trichy and  was   posted  as   Sub  Inspector   Incharge   of   the Vikkiramangalam Police  Station. After joining duty there on 12.11.80  he   proceeded  on   leave   from   13.11.80   and continuously remained  on leave  till he  was called upon by the Superintendent of Police, by passing an order On 4.6.81. to appear  before the  Medical Board at Trichy on 9.6.81. As he was  remaining absent on medical grounds and had produced certificates   from    different   Medical    Officers   the Superintendent  of  Police  becoming  suspicious  about  the genuineness of  the ground  on which he was remaining absent had passed  that order. The fact that he did not comply with that order  is not  disputed. His explanation that he had no money to travel from Madras to Trichy and, therefore, he had requested the  Superintendent of Police on 8.6.1981 to issue a railway  warrant and as a railway warrant was not given to him he  could not remain present before the Medical Board on 9.6.81 as  directed,  was  not  accepted  by  the  concerned authorities. We  will hereafter  point out  that there  were good reasons  for the  authorities not  to accept  the  said explanation. Such  an act of insubordination or disobedience of an  order by  a police officer has to be viewed seriously as higher  degree of  discipline is  expected  of  a  member belonging to  the Police Force. Therefore, it cannot be said that there  was no  good and  sufficient reason  or a  valid justification for  initiating the  disciplinary  proceedings against him.      What  was,   however,  contended   on  behalf   of  the respondent  was   that  in  absence  of  any  Rule  treating noncompliance with  an order of a superior police officer or non-appearance  before   a  Medical   Board  as  an  act  of misconduct no  disciplinary  proceedings  should  have  been initiated against  him for  the said  act of delinquency. In support of  this submission  the learned counsel relied upon the decision  of this  Court in  A.L. Kalra  vs. Project and Equipment Corporation  of India  Ltd. 1984  (3) SCC  316. In that case,  disciplinary proceedings  were initiated against A.L. Kalra  by the  Corporation for  committing  an  act  of misconduct under  service rule  4(1)  (i)  and  (iii)  which prescribed that  every employee  of the Corporation shall at all times  maintain absolute  integrity and do nothing which is unbecoming of a public servant. Rule 5 prescribed various misconducts for  which action  could  be  taken  against  an employee governed by the rules. Taking note of the fact that rule 4  was given the heading ’General’ and rule 5 was given the heading  ’Misconduct’ this  Court took the view that the draftsmen of  the Rules  made a clear distinction about what would   constitute    misconduct.   It   was   under   these circumstances this Court observed that "failure to keep such high  standard  of  moral,  ethical  or  decorous  behaviour befitting  an  officer  of  the  company  by  itself  cannot constitute misconduct  unless the  specific conduct falls in any of  the enumerated  misconduct in  Rule 5.  Rule  4  was regarded as  vague and of general nature and in that context it was  further observed  that where  misconduct when proved



entails penal consequences, it is obligatory on the employer to specify  and if  necessary define  it with  precision and accuracy so  that any  ex post  facto interpretation of some incident may  not be  camouflaged as  misconduct. Construing the rules  this Court  held that "Rule 4 styled as ’General’ specifies a  norm of behaviour but does not specify that its violation will  constitute  misconduct."  Rule  4  was  thus construed as  not specifying a misconduct. Thus the decision in that  case turned  upon the scheme of those rules and the construction placed  upon rules 4 and 5 of those rules. This Court in  that case has not laid down as a general principle that if  an act is not specified by rules to be a misconduct then it cannot be regarded as such and an employee cannot be punished for committing such an act.      The observations  made by  this Court  in Ranjit Thakur vs. Union  of India  and, Ors.  1987 (4) SCC 611 support the view that  we are  taking. In  that case  the question which arose for  consideration was whether a disregard of an order to eat  food by  itself amounted to disobedience to a lawful command for  purposes of  section 41  of the  Army Act 1950. This Court observed that the question "has to be examined in the context  of the  imperatives of  the high  and  rigorous discipline to  the maintained  in the  Armed  Forces.  Every aspect of  life of  a soldier  is regulated  by  discipline. Rejection of  food might,  under circumstances, amount to an indirect expression  of remonstrance  and resentment against the higher authority. To say that a mere refusal to eat food is an  innocent, neutral act might be an over-simplification of the  matter. Mere inaction need not always necessarily be neutral. Serious acts of calumny could be done in silence. A disregard of  a direction  to accept  food might  assume the complexion  of   disrespect  to,   and  even   defiance   of authority."      The Rules  applicable in  this case do not specify acts of  misconduct   for  which  a  delinquent  officer  can  be punished. Rule  2  empowers  the  competent  authorities  to impose upon  members  of  the  Service  penalties  specified therein for  good  and  sufficient  reason.  Therefore,  the decision of  this Court  in A.L.  Kalra’s  case  (supra)  is clearly distinguishable.  Before holding  that there  was no justification to  initiate disciplinary  proceeding  against the respondents,  the  Tribunal  ought  to  have  considered whether  there   was  ’good   and  sufficient   reasons  for initiating such  proceedings against  him.  It  was  not  at justified in taking that view on the ground that such an act of delinquency has not been specified in the Rules as an act of  misconduct.  Not  obeying  a  legitimate  order  of  his superior by  a member of the Police Force has to be regarded as an act of indiscipline and would certainly provide a good and  sufficient   reason  for   initiating  a   disciplinary proceeding.      It was  next contended  by the  learned counsel for the respondent that  the intention  of the respondent was not to flout the  order passed  by the  Suprintendent of Police and non-compliance was  due to bona fide reason, namely, that he did not  have sufficient money for travelling from Madras to Trichy and he was denied a railway warrant for that purpose. In support  of his  contention that mere non-compliance with an order  of a superior officer should not be regarded as an act of  misconduct unless there is an intention to flout the same, the  learned counsel relied upon the decision in Union of India  and Ors.  vs. Giriraj Sharma reported in 1994 Supp (3) SCC  755. In  that case  the  employee  was  deputed  to undergo a course as an electrician. He sought leave and then applied for  extension of  leave. That request was rejected.



For overstaying  the  period  of  leave  his  services  were terminated. The  said order was challenged in the High Court by filing  a writ  petition. The High Court having set aside the order,  the Union  of India  preferred an appeal to this Court. While  dismissing the appeal this Court observed that the punishment of dismissal for overstaying the period of 12 days in  the circumstances  of the  case was really harsh as the said  circumstances showed that it was not his intention to wilfully  flout the  order,  but  the  circumstances  had forced him to do so.      As against  that,  it  was  submitted  by  the  learned counsel for  the appellants that in this case the respondent had started  remaining absent on medical grounds immediately after he  was transferred  to Trichy  from Madras  and  that clearly indicated  that he  did not  like the  transfer  and wanted to  remain at  Madras to  carry on  activities of the Association of  which he  was the  Secretary. We  find  some force in  this contention.  The certificates produced by the respondent for  obtaining medical leave clearly show that he was not  all the times at Madras but had gone and stayed for quite  a   long  period   at  Dindigul   and  Madurai.  This circumstance was sufficient to raise a suspicion in the mind of the  authorities that  the ground given by the respondent for remaining  absent at  Trichy was really an excuse and he was not  genuinely sick.  It was  under these  circumstances that he was directed on 24.4.81 to appear before the Medical Board. Without  assigning any  reason  he  did  not  do  so. Therefore, he was again directed by an order dated 4.6.81 to appear before  the Board  on 9.6.81.  This communication was received by  the respondent. On 8.6.81 he addressed a letter to the  Superintendent of Police expressing his inability to appear before the Medical Board on 9.6.81 on the ground that he had  no money to travel from Madras to Trichy and that he would appear  before the  Board only  on completion  of  his leave. He had also stated therein that a railway warrant for the journey  may be  granted to  him. What  we find from the material on  record is that respondent was already in Trichy on 4.6.81  when the  said order  was personally  served upon him. Even though he knew on that day that he was required to appear before  the Madical Board at Trichy on 9.6.81 he went away to  Madras and  from there sent a letter on 8.6.81. The learned counsel  for the  respondent could not point out any provision requiring  the police  authorities  to  provide  a railway warrant  to a  member  of  the  Service  under  such circumstances. Mr. R. Balakrishnan, Deputy Superintendent of Police has  filed an  additional affidavit  stating  clearly that there  is no such provision. This statement made in the affidavit has  not been controverted. It, therefore, clearly appears to us that the reason given by him for not remaining present before  the Medical Board was a false excuse. It was his intention  not to  comply with  the said  order. His not appearing before  the Medical Board was with a view to avoid an enquiry regarding his true state of health so that he was not compelled  to  resume  duty.  It  was  thus  an  act  of disobedience and  indiscipline. Therefore,  in the facts and circumstances of  the case  it cannot be said that there was no good  and sufficient reason for initiating a disciplinary proceeding against the respondent.      During the  enquiry the respondent had asked for copies of certain  documents and  had also  requested  the  Enquiry Officer to  peruse the  file in C.No.A1/861/81 of D.I.G. The Tribunal has  held that  as a  result  of  the  refusal  the respondent was  deprived  of  a  reasonable  opportunity  of defending himself. From the additional affidavit filed by R. Balakrishnan it  appears that  the relevant  record was made



available to  the respondent  for his  perusal  and  he  had perused the  same. Thereafter by his letter dated 18.1.82 he had asked  for (1)  a copy  of the D.O. letter dated 20.6.81 written by the   Superintendent of Police, Trichy (2) a copy of the  proceedings of  the Deputy Superintendent of Police, Trichy in  connection with establishing a police association at Trichy  (3) copies  of the daily diaries dated 4.6.81 and (4) copies  of the  letters written  in 1980 and 1981 to the Home Secretary  requesting permission  of the  Government to place him  under suspension  for taking part in formation of police  association   and  the   reply  given  by  the  Home Secretary.  Enquiry  Officer  by  his  order  dated  12.5.82 rejected the  requests made  by respondent  by  his  letters dated 18.1.82  and 5.2.82 on the ground that the file of the D.S.P. which  the respondent wanted to peruse was not at all relevant to  the charge.  Similarly,  the  request  for  the letters was  rejected on  the  ground  that  were  also  not relevant and  calling  for  such  records  would  result  in abnormal delay  in disposal  of the enquiry. It also appears that the request for copies of the daily diaries of the said three police  officers was  also rejected on the ground that they were not relevant. The Tribunal without considering how those documents   were relevant upheld the contention of the respondent that  by not  supplying copies of those documents he was  denied a  reasonable opportunity  to defend himself. The file of the D.I.G. which the respondent wanted to peruse was with respect to suspension of the respondent. Similarly, the two  letters addressed  to the  Home Secretary  and  the replies thereto  also appeared  to be in connection with his suspension earlier  in 1980 and 1981 for a different reason. The respondent  had not  even stated in his letter as to who had written  those letters  and on  which  dates  they  were written. The  respondent had not stated why he wanted copies of the  diaries dated 4.6.81 of those police officers but it appears from  the letter  dated 18.1.82  that  possibly  the diaries contained  some information about the police meeting held on  that day.  It is difficult to appreciate how any of those documents  and  the  proceedings  in  connection  with establishing a  police  association  at  Trichy  could  have helped the respondent in establishing his case that he could not remain  present at  Trichy on  9.6.81 because he did not have sufficient  money to  travel from Madras to Trichy. The fact that he was directed to appear before the Medical Board on 9.6.81  and that he did not do so was not in dispute. The only defence  of  the  respondent  was  that  there  was  no intention on  his part  to flout  the said  direction but he could not  comply with  it because of his inability. We are, therefore, of  the opinion  that the  Enquiry-  Officer  was right in  rejecting the  request of the respondent to supply those documents  and that the respondent had not suffered in any manner in defending himself as a result thereof.      We,  therefore,   allow  this  appeal,  set  aside  the judgment and  order passed by the Tribunal in T.A. No.606 of 1991, with  the result  that the  order of  dismissal passed against the  respondent stands affirmed. However, in view of the facts  and circumstances  of the  case there shall be no order as to costs.