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2012 DIGILAW 513 (MAD)

M. Natarajan v. State of Tamilnadu

2012-02-01

VINOD K.SHARMA

body2012
Judgment :- 1 The petitioner has approached this Court with the prayer for issuance of writ in the nature of Certiorari, to quash the order of punishment of postponement of two increments for two years with cumulative effect having effect on the pension. 2 The petitioner was recruited as Police Constable on 10.12.1988 and was transferred to railway police on 31.05.1994. The petitioner while working as railway Police constable at Chidambaram railway station, was deputed for night duty on 06.03.1995. The mother of the petitioner suddenly fell ill and in order to provide treatment to her, he could not attend night duty on that day. The petitioner was accordingly marked absent. 3 The petitioner on 7.3.1995 applied for casual leave and requested the Head Constable to treat the absence on 06.03.1995 as casual leave. 4 The stand of the respondents is that when the Head Constable refused to mark the petitioner on casual leave, the petitioner misbehaved with him, by using abusive language, being in inebriated condition. 5 The petitioner was issued charge memo under Rule 3(b) of Police (Disciplinary and Appeal) Rules on the allegation of absence from duty on 6.3.1995, and disorderly misbehaviour with the Head Constable on 7.3.1995 at 1.30 p.m. 6 On denial of allegations, an enquiry officer was appointed. The enquiry officer on considering the evidence led before him, recorded the categorical finding that the petitioner was not under the influence of alcohol. The reason for coming to this conclusion is, that if the petitioner was under the influence of alcohol, he should have been produced before the Medical Officer to get certificate. It was also observed in the report that in the evidence led by the prosecution witness, it was not stated that the petitioner was in inebriated condition. 7 In so far as the allegation of misbehaviour, the enquiry officer also observed that though the witness could not reproduce the actual filthy language used by the petitioner, but had conveyed the meaning of abusive language used by the petitioner on the basis of the finding. The enquiry officer held the petitioner guilty of charges leveled against him. 8 The competent authority accepted the findings and imposed punishment of postponement of increments for two years with cumulative effect, having effect on pension i.e. major punishment under the Police rules. 9 The appeal and review filed by the petitioner were also dismissed. The enquiry officer held the petitioner guilty of charges leveled against him. 8 The competent authority accepted the findings and imposed punishment of postponement of increments for two years with cumulative effect, having effect on pension i.e. major punishment under the Police rules. 9 The appeal and review filed by the petitioner were also dismissed. 10 The learned counsel for the petitioner challenged the impugned order by contending that the impugned orders are totally arbitrary and not sustainable in law, as they are based on the enquiry report which on the face of it is perverse therefore cannot be sustained in law. 11 The learned counsel for the petitioner vehemently contended that the findings of the enquiry officer holding the petitioner guilty, go contrary to the positive findings recorded to the effect that the petitioner was not drunk, and that the witnesses examined by the prosecution could not specify the filthy language alleged to have used by the petitioner. 12 It is also the contention of the learned counsel for the petitioner that the punishment awarded is shockingly disproportionate to the proved misconduct, i.e. being absent for a day, that too for a valid reason, for treatment of sick mother. 13 The learned Additional Government Pleader, vehemently contended, that this Court in exercise of writ jurisdiction is not competent to reappraise the evidence, and come to a different conclusion, once the enquiry conducted by the enquiry officer was not found to be in consonance with the principle of natural justice. The learned counsel for the State also contended that there was no allegation of violation of any rules or regulations and therefore, this Court in exercise of writ jurisdiction cannot take a different view than the one taken by the authorities, even if two views are possible. 14 It is further contention of the learned counsel for the State that the punishment is reasonable as per the proved misconduct. The petitioner belongs to the disciplinary force, and absent from duty without prior permission is serious misconduct. The punishment awarded therefore cannot be said to be excessive. 15 On consideration, I find force in the contention raised by the learned counsel for the petitioner. It is true that this Court in exercise of writ jurisdiction, cannot substitute its own opinion, but at the same time, it cannot close eyes, to perverse finding. The punishment awarded therefore cannot be said to be excessive. 15 On consideration, I find force in the contention raised by the learned counsel for the petitioner. It is true that this Court in exercise of writ jurisdiction, cannot substitute its own opinion, but at the same time, it cannot close eyes, to perverse finding. 16 The reading of the enquiry report itself shows that the findings recorded by the enquiry officer are perverse and not sustainable in law. The enquiry officer recorded the positive finding that the allegation against the petitioner, that he was under the influence of alcohol was not proved. 17 The enquiry officer has also held that the witnesses examined by the prosecution were not able to reproduce the abusive language alleged to have used by the petitioner, therefore, in the absence of positive evidence, the findings of the enquiry officer is not sustainable in law. 18 At the same time, the enquiry report cannot be rejected in toto, as it is not disputed by the petitioner himself that he was absent from duty on 06.03.1995. As the petitioner belongs to disciplinary force, it was not open to the delinquent to be absent without prior permission, as the leave can be availed only after being sanctioned by the competent authority. 19 Even in case, the petitioner's mother was not well, nothing stopped the petitioner to seek leave from the higher authorities before proceeding to the hospital. 20 Therefore, the absence from night duty on 06.03.1995 is proved. At the same time, mere absence of duty for few hours, even though the petitioner belongs to disciplinary force cannot be said to be serious misconduct, in view of special circumstances of this case. 21 Therefore, the charges proved against the petitioner is of absent from night duty. The punishment awarded therefore, is shockingly disproportionate, to the misconduct proved against the petitioner. 22 This Court normally does not interfere with the quantum of punishment, but at the same time, when the punishment is shockingly disproportionate to proved misconduct, this Court under Art.226 of the Constitution of India can interfere with the order passed by the respondent. The punishment awarded therefore, is shockingly disproportionate, to the misconduct proved against the petitioner. 22 This Court normally does not interfere with the quantum of punishment, but at the same time, when the punishment is shockingly disproportionate to proved misconduct, this Court under Art.226 of the Constitution of India can interfere with the order passed by the respondent. 23 Consequently, the writ petition is partly allowed by reducing the punishment from postponement of increments for two years with cumulative effect having effect on pension to minor punishment of postponement of two increments for two years without cumulative effect and not having effect on pension. 24 The petitioner shall be entitled to consequential benefits. The matter is being remitted for reconsideration to reduce the punishment as the case is pending in Court since 2001.