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2008 DIGILAW 1097 (MAD)

S. Babuji v. The Registrar (General)& Others

2008-03-28

M.VENUGOPAL, SUDHANSU JYOTI MUKHOPADHAYA

body2008
JUDGMENT :- M. Venugopal, J. The petitioner has filed this Writ Petition seeking for the relief of issuance of Writ of Certiorarified Mandamus to call for all relevant records pertaining to the impugned dismissal order dated 02.06.2004 issued in proceedings No.R.O.C.No.2 of 2004 passed by the second respondent and the consequent Appeal Rejection Order issued in R.O.C.No.3899/2004/C1 dated 02.05.2005 passed by the first respondent and quash the same as arbitrary, unreasonable and illegal and to direct the respondents to reinstate the petitioner into service as driver with continuity of service, backwages and with all consequential monetary and other service benefits. 2. The writ petitioner serving as driver in the Principal District Judges Court, Ramanathapuram has been placed under suspension from service on 20.05.2003 by the Principal District Judge, Ramanathapuram (second respondent) for having attended duty in intoxication at the residence of Principal District Judge, Ramanathapuram. 3. A Memo dated 29.09.2003 was issued to the writ petitioner stating that on 20.05.2003 at 10.00 a.m. when he attended the residence of Principal District Judge, Ramanathapuram for his official duties he was found drunk, has confirmed by the medical checkup report and thereby violated Rule 21 of the Tamil Nadu Government Servants Conduct Rules, 1973 and called upon to submit his explanation within 15 days from the date of receipt of the memo. The writ petitioner submitted his explanation dated 10. 2003 inter alia stating that when he went to the District Judges residence on 20.05.2003 at 10.00 a.m. to attend his duty he has not consumed liquor and that he has not violated Rule 21 of the Tamil Nadu Government Servants Conduct Rules and that he was suffering from stomach ache and cough and not keeping well from 16.05.2003 and therefore, he was taking tablets and medicine as per Doctors advice till 21.05.2003 and that he has not committed any mistake and prayed for revocation of his suspension. 4. The charge framed against the writ petitioner on 011. 2003 is that while attending the residence of the Principal District Judge, Ramanathapuram on 20.05.2003 at 10.00 a.m. for his official duties was found in intoxication and when he was directed to take off the staff car, he was unable to drive the car and thereby violated Rule 21 of the Tamil Nadu Government Servants Conduct Rules and negligent in the discharge of his official duties. 5. 5. The second respondent/Principal District Judge, Ramanathapuram in his proceedings dated 211. 2003 appointed the Subordinate Judge, Ramanathapuram as Enquiry Officer and appointed the Principal District Judge, Ramanathapuram as Presenting Officer in regard to the conduct of enquiry against the writ petitioner as per rules and submit enquiry report within a month. 6. The Enquiry Officer viz., Sub Judge, Ramanathapuram after examining witnesses P.W.1 to P.W.7 and D.W.1, the delinquent and marking Exs.D.1 to D.3 inter alia came to the conclusion that at the time of occurrence on 20.05.2003 at 10.00 a.m., the writ petitioner/driver while attending the residence of Principal District Judge, Ramanathapuram for his official duties and when he was directed to take off the staff car at that time in his blood and urine alcohol content was found at 69% and 58% and held that the charge against the delinquent was proved. 7. On receipt of report of the Enquiry Officer viz., Sub Judge, Ramanathapuram dated 26.02.2004, the Principal District Judge, Ramanathapuram by his proceedings dated 11.03.2004 directed the writ petitioner/delinquent to submit his further representation if any within 15 days from the date of receipt of the said communication by enclosing the copy of the said report. 8. The Principal District Judge, Ramanathapuram, being the Disciplinary Authority by his proceedings dated 02.06.2004 after taking into consideration the explanation submitted by the writ petitioner/delinquent dated 24.03.2004 passed final orders holding that the charge framed against the writ petitioner/delinquent was proved and directed the dismissal of the writ petitioner/delinquent from service with effect from 02.06.2004. Being aggrieved against the order of dismissal dated 02.06.2004 passed by the second respondent and the consequent Appeal Rejection Order dated 02.05.2005 passed by the first respondent, the writ petitioner has filed the present writ petition. 9. Being aggrieved against the order of dismissal dated 02.06.2004 passed by the second respondent and the consequent Appeal Rejection Order dated 02.05.2005 passed by the first respondent, the writ petitioner has filed the present writ petition. 9. According to the learned counsel for the writ petitioner, the respondents have not taken into consideration the medical prescription given to the writ petitioner and that the writ petitioner was taking medicines from 16.05.2000 for five days and the smell was due to the medicines the petitioner took treatment for severe cough and stomach pain and these facts were not borne in mind by the respondents and that there is a delay of 104 days in sending the samples to the Forensic Test and that taking into consideration of the past records while passing the impugned order of dismissal by the respondents is unsustainable in law and without assigning proper reasons, the second respondent had mechanically accepted the findings of the Enquiry Officer viz., the third respondent and that the Appellate Authority had failed to give proper reasoning while confirming the order of the second respondent/ Disciplinary Authority and therefore, prays for allowing the writ petition. 10. It is the further contention of the learned counsel for the petitioner that the second respondent viz., Principal District Judge, Ramanathapuram, himself is the complainant in the case and that right from initiating the charges till passing of the final orders he has functioned as the Disciplinary Authority which is not sustainable in law. 11. On the side of the petitioner a plea is taken that when the occurrence took place during summer vacation on 20.05.2003, the appropriate authority is the Vacation Judge of the concerned Court in regard to the administration as well as judicial matters and in the case on hand, the second respondent viz., Principal District Judge, Ramanathapuram has proceeded in the matter as Disciplinary Authority and therefore, the same is illegal under service jurisprudence. 12. We have heard the learned counsel for the parties and noticed their respective contentions. 13. We are conscious of our realm of jurisdiction under Article 226 of the Constitution of India, as this Court cannot sit in appeal over the findings of the Enquiry Officer nor could substitute its finding like the Appellate Authority. As a matter of fact, jurisdiction of Court in Judicial Review is limited. 13. We are conscious of our realm of jurisdiction under Article 226 of the Constitution of India, as this Court cannot sit in appeal over the findings of the Enquiry Officer nor could substitute its finding like the Appellate Authority. As a matter of fact, jurisdiction of Court in Judicial Review is limited. However, the disciplinary proceedings being quasi criminal nature, there should be some evidence to prove the charge. In fact, the charges in a disciplinary proceedings are not required to be proved like, the criminal trial beyond all reasonable doubt. In reality, the High Court can interfere with the finding of inquiry report or the order of punishment imposed by the Disciplinary Authority if it is found to be without jurisdiction or not passed on evidence or arbitrary or perverse. 14. A perusal of the Enquiry File in respect of the writ petitioner indicates that M.Irulandi, Constable of Ramanathapuram on Reserve has addressed a letter dated 20.05.2003 to the Principal District Judge, Ramanathapuram (second respondent) inter alia stating that while he was discharging his duty in the bungalow of the Principal District Judge, Ramanathapuram on 20.05.2003 at 10.15 a.m. the writ petitioner/car driver, Babuji came for driving the vehicle and on seeing the condition of the driver, the District Judge has asked the Police Guard to examine the driver to find out whether he was in drunken state and that the Constable in turn asked the driver Babuji to blow his mouth and on blowing the smell of toddy came from his mouth. Therefore, it is quite evident that the Police Guard M.Irulandi is the complainant and the second respondent viz., Principal District Judge, Ramanathapuram is not the complainant. 15. Before the Enquiry Officer P.W.1-Irulandi (Police Guard) has testified that when he was on bungalow duty at the residence of District Judge on 20.05.2003 at 10.30 a.m., on instruction from the District Judge he asked the driver Babuji to expel air from his mouth in order to find out whether he consumed liquor and at that time the smell palmirah toddy came from his mouth and he informed the same. 16. P.W.6-Dr. Abulkudha has deposed that the blood and urine of Babuji were taken for examination and sent to the laboratory as per request Ex.P.1-Letter. Further, as per Ex.P.2-Certificate given by P.W.6-Dr.Abulkudha the individual might have consumed arrack but he was not under the influence of the same. 16. P.W.6-Dr. Abulkudha has deposed that the blood and urine of Babuji were taken for examination and sent to the laboratory as per request Ex.P.1-Letter. Further, as per Ex.P.2-Certificate given by P.W.6-Dr.Abulkudha the individual might have consumed arrack but he was not under the influence of the same. 17. The evidence of P.W.7-Surendaran Paulmani, Assistant Director (Incharge), Regional Forensic Laboratory, Ramanathapuram is to the effect that he received one paper pack of Babujis sample blood and urine with label for chemical analysis and in that there were two bottles one containing blood and another urine and in the blood and urine Ethyl Alcohol was found at 69 mg. and 58 mg. and his report is Ex.P.3. 18. The Testimony of P.W.1-Irulandi, P.W.6-Dr. Abulkudha and P.W.7-Surendaran Paulmani, Assistant Director (Incharge), Regional Forensic Laboratory, Ramanathapuram assumes vital significance in the case on hand. 19. In regard to the plea that the occurrence took place during vacation period on 20.05.2003 for which the Vacation Judge is incharge during the said period and therefore, the second respondent viz., Principal District Judge, Ramanathapuram is not the appropriate authority, it is to be pointed out that the Vacation Judge (Incharge) cannot take the role of Disciplinary Authority during vacation and as per G.O.Ms.No.543 P & AR Department dated 22.06.2002, the Principal District Judge is the Appointing Authority. Moreover, at the time of occurrence on 20.05.2003 the writ petitioner was working under the second respondent viz., Principal District Judge, Ramanathapuram and the second respondent viz., Principal District Judge, Ramanathapuram was very much available in his bungalow during vacation. Furthermore, the Vacation Judge is there to dispose of urgent matters and therefore, the contention that the Vacation Judge is the Appropriate Authority to initiate action against the writ petitioner is devoid of substance and the same is not accepted. 20. Inasmuch as P.W.1-Irulandi is the complainant and the second respondent/Principal District Judge, Ramanathapuram has initiated action on the basis of P.W.1s complaint, it cannot be said by any stretch of imagination that the second respondent/Principal District Judge, Ramanathapuram is the complainant, in our considered opinion. 21. The learned counsel for the writ petitioner placed much reliance on the evidence of P.W.6-Dr. Abulkudha to the effect that at the time when he examined Babuji there was no symptom of he having consumed liquor and this is a favourable circumstance in favour of the writ petitioner. 21. The learned counsel for the writ petitioner placed much reliance on the evidence of P.W.6-Dr. Abulkudha to the effect that at the time when he examined Babuji there was no symptom of he having consumed liquor and this is a favourable circumstance in favour of the writ petitioner. At this juncture, one cannot ignore the fact that P.W.6-Abulkudha, the Doctor in his evidence (in chief examination) has stated that the driver might have consumed arrack as per Certificate-Ex.P.2 given by him but he was not under the influence of arrack. In a domestic enquiry, a principles of strict rules of evidence are not applicable. In a domestic enquiry, there must be preponderance of probabilities and there must be some evidence to establish the charge. Viewed in that perspective, the evidence of P.W.7-Surendaran Paulmani, Assistant Director to the effect that in the blood and urine 69 mg. of Ethyl Alcohol, 58 mg. of Ethyl Alcohol were found as per Ex.P.3-Forensic Report dated 09.09.2003 on chemical examination clearly establish the factum of consumption of Alcoholic substance by the driver. 22. Coming to the plea of the petitioner that there is a delay of 104 days in sending the samples of blood and urine after a delay of 104 days to the Forensic Test, it must be borne in mind to the evidence of P.W.7-Surendaran Paulmani, Assistant Director (incharge), Regional Forensic Science Laboratory, Ramanathapuram to the effect that if they are properly protected they can be sent at any time and therefore, any simmering doubt about Ex.P.3-Report cannot stand a judicial scrutiny, in our considered opinion. Further, the writ petitioner/delinquent has not examined the Doctor Jeyaveer in the domestic enquiry, who has purportedly given the treatment etc. 23. It is relevant to point out that as per Rule 21 (b) of the Tamil Nadu Government Servant Conduct Rules, 1973 the Government Servant shall not be found drunk or under the influence of liquor while attending office or appearing in a public place. The state of intoxication during office/duty hours by any employee will reflect the height of indiscipline. Furthermore, a person who comes to work in an inebriated state is likely to interfere with the smooth working of the office. 24. On a perusal of the file in respect of the writ petitioner submitted by the first respondent, it transpires that his Appeal Petition dated 110. Furthermore, a person who comes to work in an inebriated state is likely to interfere with the smooth working of the office. 24. On a perusal of the file in respect of the writ petitioner submitted by the first respondent, it transpires that his Appeal Petition dated 110. 2004 was considered by the concerned Committee of High Court on Administrative Side and it was found that there were no merits in the appeal and the same was dismissed. 25. In the instant case is concerned, one cannot brush aside the Rule 14 of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules wherein the expression immediate Superior Gazetted Officer means immediate Superior Gazetted Officer under whom the delinquent was working at the time when the lapses were committed and includes his successor in Office. From this also, it is clear that the appellant at the time of occurrence on 20.05.2003 was working under the second respondent viz., Principal District Judge, Ramanathapuram and therefore, the second respondent viz., Principal District Judge, Ramanathapuram is the appropriate authority to initiate action against the writ petitioner. 26. In regard to the plea relating to past record, the principle is that an individuals past record should not be taken into account in arriving at a finding as to the truth or otherwise of the charge against him. In the instant case on hand, the second respondent viz., Principal District Judge, Ramanathapuram in his final orders dated 02.06.2004 has not taken into consideration the past record of the appellant in arriving at a finding as to the truth or otherwise of the charge levelled against him and a passing reference to the past record of the appellant in our opinion has not caused any prejudice and therefore, the contention that the past record was taken into consideration by the respondents is untenable. 27. 27. The learned counsel for the petitioner submits that right to be heard is available to an employee upto the final stage of passing final orders in the departmental enquiry and in support of his proposition relied on the decision (1999) 7 SCC 739 Yoginath D. Bagde V. State of Maharashtra and another, wherein it is inter alia observed as follows: "Service Law – Departmental Enquiry – Pendency and conclusion of – Held, by mere submission of enquiry report the Disciplinary Authority does not bring an end to enquiry proceedings – The proceedings come to an end only when the Disciplinary Authority on consideration of report either exonerates charged employee or imposes punishment on him – Right to be heard therefore remains available to the employee up to final stage". 28. According to the learned counsel for the petitioner that the appellant was not provided with an opportunity of being heard by the second respondent viz., Principal District Judge, Ramanathapuram. In this connection, it is relevant to point out in the representation dated 20.04.2003 (after the receipt of the copy of the enquiry report) submitted by the appellant before the second respondent/Disciplinary Authority, the appellant has not requested for any personal hearing. Moreover, in G.O.Ms.No.405, Personal and Administrative Reforms (Personnel – N.) dated 19.09.1990, it is inter alia observed that it shall not be necessary to give the person charged any opportunity of making representation on the penalty proposed to be imposed. As a matter of fact, it is a settled position that in departmental proceedings the Disciplinary Authority is the sole Judge of facts. In fact, the second respondent viz., Principal District Judge, Ramanathapuram has considered the representation of the appellant dated 20.04.2003 and passed the final orders on 02.06.2004. At this stage, it is to be borne in mind after the 42nd amendment to the Constitution 1976 that the provision of Art.311 of the Constitution has been amended and after the amendment, it is not necessary that the proposed punishment should also be mentioned in the show cause notice to be issued by the Disciplinary Authority. Therefore, the plea made on behalf of the appellant that he was not given the opportunity of personal hearing before passing final orders by the second respondent is unsustainable, in our considered opinion. 29. Therefore, the plea made on behalf of the appellant that he was not given the opportunity of personal hearing before passing final orders by the second respondent is unsustainable, in our considered opinion. 29. As far as the present case is concerned, the Enquiry Officer has given his findings on 26.02.2004 based on evidence and the said finding is also supported by legal evidence. The sufficiency of evidence in proof of finding lies beyond the scope of scrutiny of reviewing Court. Further, one cannot encourage Alcoholic driving to the detriment of any authority. Suffice it to state that the writ petitioner being found in intoxication on 20.05.2003 is certainly an act of incompatibility with the due discharge of his duties. 30. In the case on hand, the inquiry has been fair and proper and the misconduct of the writ petitioner has been proved and in such matter, it is for the Disciplinary Authority to decide what is the fit punishment? In any case on the misconduct of intoxication by the petitioner it can never be said that dismissal is not the appropriate punishment. Per contra, the order of dismissal dated 02.06.2004 passed by the second respondent is just and prudent on the facts and circumstances of the case. 31. In the light of the above discussions and reasons assigned and taking into consideration the entire gamut of the matter in an overall assessment of the facts and circumstances of the case, we opine that the findings of the Enquiry Officer dated 26.02.2004 and the final orders passed by the second respondent dated 02.06.2004 and the order passed by the Honourable High Court in R.O.C.No.3899/2004/C1 dated 02.05.2005 do not call for any interference and resultantly, the Writ Petition fails and the same is dismissed in the interest of justice. Considering the facts and circumstances of the case, there shall be no order as to costs.