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2008 DIGILAW 2119 (MAD)

R. Chidambaram v. The Presiding Officer & Others

2008-06-30

M.SATHYANARAYANAN, P.K.MISRA

body2008
Judgment :- P.K. Misra, J. Heard Rev.Dr. S.N. Amarnath, learned counsel for the petitioner and Ms.Geetha Thamaraiselvan, learned Government Advocate for respondents 2 and 3. 2. The petitioner was employed as Police Constable. A departmental proceedings was initiated against him whereunder, the following charges were levelled:- "i) Having illicit intimacy with one Malar @ Malarkodi of Kodukkurgudigadu in Vallam Station limits, who is trading in illicit liquor. ii) Reprehensible conduct in inducing Malar @ Malarkodi to indulge in dealing in illicit liquor in Kodukkurgudikadu Village, while on medical leave during 211. 91 to 12. 91, 112. 91 to 212. 91, 1. 92 to 12. 92, 22. 92 to 22. 92, 23. 92 to 292. iii) High handed action in trying to assault the members of the prohibition Advisory Committee and rendering all help to Malar to carry on the illicit trade in liquor. iv) Destroying the cashew-nut crops belonging to one Amul who is a member of the prohibition advisory committee instigating the sellers of arrack like Malar, Selvaraj, Selvam and Muniappan and causing damages to a tune of Rs.50,000/=. v) Highly reprehensible conduct in contracting a second marriage with one Malar, a seller of illicit arrack, discarding his legally wedded life." 3. In the departmental enquiry, the Enquiry Officer found that Charge No.V had not been proved, but, on discussion of the materials on record, it was found that charges (i) to (iv) had been proved. Accordingly, the disciplinary authority imposed punishment of removal. Thereafter, the petitioner filed petition before the appellate authority. The appellate authority rejected such petition. The petitioner filed Original Application No.628 of 1995 before the Tamilnadu Administrative Tribunal. While the matter was pending before the Tribunal, a criminal case which was co-relatable to charge NO.4 ended in acquittal of the petitioner. This aspect was brought to the notice of the Tribunal. The Tribunal, while accepting such a contention relating to acquittal and thereby holding that charge No.4 as not proved, analysed the entire material relating to charges 1 to 3 and held that such charges having been proved, there was no illegality in the order of removal passed by the departmental authority. The said order of the Tribunal is being challenged in this writ petition. 4. The said order of the Tribunal is being challenged in this writ petition. 4. Learned counsel for the petitioner has contended that the order passed by the appellate authority, being a non-speaking order, should be quashed and the matter should be remanded to the appellate authority for fresh consideration. 5. We have gone through the order passed by the appellate authority, who has simply recounted the charges against the petitioner and thereafter observed as follows:- "I have carefully gone through the Appeal Petition, PR file and connected records. The Enquiry Officer after observing all formalities found that the applicant is guilty of the charge and proved the first four count of the charge against him. The charge against him are grave in nature. All the points contained in his explanation and further representation have been carefully considered by the punishing authority before passing orders. The punishment awarded is just and appropriate. Appeal is considered favourably since there is no grounds to interfere hence rejected." 6. Such an order cannot be considered as a speaking order. Therefore, in normal course, the matter should be remitted back to the appellate authority for fresh consideration. However, we find that before the Tribunal, the present petitioner, instead of concentrating on the above aspect, has argued at length relating to the merits of the materials on record and the Tribunal has taken great pains in re-analysing the entire evidence. Moreover, the conclusions of the departmental authority being passed on telltale materials on record, no useful purpose would be served in remitting the matter to the appellate authority. 7. The next contention of the petitioner is to the effect that so far as charge No.1 is concerned, such a charge cannot be considered as misconduct. We do not think that this submission can be countenanced. As a public servant, more particularly, in a disciplined force, the petitioner was expected to maintain devotion to the duty and should not have indulged in any act which was likely to bring disrepute to the department and should not have acted in a manner unbecoming of a public servant. 8. The other contention of the petitioner is to the effect that there is no material to indicate that the petitioner had, in fact, encouraged Malar alias Malarkodi in dealing with illicit liquor and therefore, charge No.(ii) is not proved. 9. 8. The other contention of the petitioner is to the effect that there is no material to indicate that the petitioner had, in fact, encouraged Malar alias Malarkodi in dealing with illicit liquor and therefore, charge No.(ii) is not proved. 9. The Enquiry Officer and the disciplinary authority have referred to relevant materials on record and have come to a particular conclusion. Similarly, the Tribunal has reanalyzed the entire materials and come to the conclusion regarding charge No.(ii). In normal course, this court, under Article 226 of the Constitution of India, does not sit as an appellate authority over the orders passed by the Tribunal or over the orders passed by the departmental authorities. Therefore, we are not inclined to make in-depth analysis of the evidence and materials on record. Even assuming that such charge was not proved, according to us, there is ample evidence in connection with charges (i) and (iii) and hardly, any argument has been advanced to take away the effect of findings with regard to charges (i) and (iii). In such a scenario, even assuming that charge No.(ii) is not proved, in our opinion, the allegations relating to charges (i) and (iii) were serious enough to justify the order of removal and therefore, there is no reason to interfere with the order of the Tribunal. In this connection, we are inclined to refer to the decision of the Supreme Court in STATE OF ORISSA v. BIDYABHUSHAN (AIR 1963 SUPREME COURT 779) wherein, the Supreme Court has observed as follows:- "(9) ... The High Court was of the opinion that the findings on two of the heads under Charge(1) could not be sustained, because in arriving at the findings the Tribunal had violated rules of natural justice. The High Court therefore directed that the Government of the State of Orissa should decide whether "on the basis of those charges, the punishment of dismissal should be maintained or else whether a lesser punishment would suffice." It is not necessary for us to consider whether the High Court was right in holding that the findings of the Tribunal on charges 1(a) and 1(3) were vitiated for reason set out by it, because in our judgment the order of the High Court directing the Government to reconsider the question of punishment cannot, for reasons we will presently set out, be sustained. If the order of dismissal was based on the findings on charges 1(a) and 1(e) alone the Court would have jurisdiction to declare the order of dismissal illegal but when the findings of the Tribunal relating to the two out of five heads of the first charge and the second charge was found not liable to be interfered with by the High Court and those findings established that the respondent was prima facie guilty of grave delinquency, in our view the High Court had no power to direct the Governor of Orissa to reconsider the order of dismissal. But the Court in a case in which an order of dismissal of a public servant is impugned, is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanor established. The reasons which induce the punishing authority, if there has been an enquiry consistent with the prescribed rules, are not justiciable: nor is the penalty open to review by the court. If the High Court is satisfied that some but not all of the findings of the Tribunal were "unassailable", the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed was final, and the High Court had no jurisdiction to direct the Governor to review the penalty for as we have already observed the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, is not justiciable. Therefore if the order may be supported on any findings as to substantial misdemeanor for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction of the findings of the enquiry officer or the Tribunal prima facie make out a case of misdemeanor, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice. The High Court was, in our judgment, in error in directing the Governor of Orissa to reconsider the question." 10. The High Court was, in our judgment, in error in directing the Governor of Orissa to reconsider the question." 10. For the aforesaid reasons, we do not find any scope to interfere with the order passed by the Tribunal. 11. The learned counsel for the petitioner submitted that the petitioner had served the Department for a long period and at any rate, instead of passing the order of removal, an order of compulsory retirement would have been passed. 12. We do not think that it would be proper for the High Court to interfere with the question of punishment in such matter. However, it would be open to the petitioner to make a representation to the Director General of Police and such representation may be considered on its own merit by the Director General of Police notwithstanding the dismissal of the Original Application as well as the writ petition. However, is made clear that this order should not be considered as expressing any opinion in such matter. 13. Subject to the aforesaid observation, the writ petition is dismissed.