S. Vadivel vs The State of Tamilnadu

P. Jyothimani, J.—A brief resume of facts which are necessary for disposal of this writ petition are that the petitioner was appointed as

Grade II Warder in the year 1999. When he was placed under suspension by order dated 28.2.2001, which was served on him on 1.3.2001, he

challenged the same before the Tamil Nadu Administrative Tribunal in O.A. No. 1907 of 2001 and an order of stay was granted by the Tribunal

on 13.3.2001. In the meantime, the petitioner was issued a charge memo dated 1.3.2001, which was served on him on 2.3.2001.

1.2. The charge framed against the petitioner was that on 28.2.2001, when he reported duty at 6 a.m. and was waiting for duty allotment and

attending nature''s call near ""A"" Class Cell, one Theni Sridharan, an inmate of the jail has abused him, poured hot tea on his face and assaulted him

by damaging his uniform, and the petitioner who was assigned hospital rear para duty on the said date between 6 a.m. to 1 p.m. with ulterior

motive entered into ""A"" Block and took the remand prisoner Theni Sridharan out of the cell and assaulted him and that when the said prisoner was

separated and locked in the cell, the petitioner struck the prisoner with batten through the iron bars and caused bleeding injuries.

1.3. According to the petitioner, the entire charge memo is with malafide intention and at 6 a.m. when the incident took place, there was no

allotment of work and he was waiting for allotment and he had to attend the nature''s call since there was no facility available and it was only Theni

Sridharan, the remand prisoner, who is influential and was outside the cell roaming about, who has assaulted him and there was no possibility for

the three feet lathi to cause any bleeding injuries to Theni Sridharan after he was locked up.

1.4. The charge is that the petitioner along with another Warder, Muthupandi and 25 unknown persons had caused bleeding injuries on the said

Theni Sridharan, especially when the said Muthupandi was not in the prison at all and therefore, a false complaint has been given by the said Theni

Sridharan.

1.5. It is stated that the Enquiry Officer was appointed by an order dated 19.4.2001 and even before his appointment on 27.3.2001, he has called

for explanation from the petitioner and the charge memo is not in conformity with Rule 17(b) of the Tamil Nadu Civil Services (Discipline and

Appeal) Rules.

1.6. Against the said charge memo, the petitioner has approached the Tamil Nadu Administrative Tribunal by filing O.A. No. 3308 of 2001 and by

an order dated 21.12.2001, the said application along with the application filed against the order of suspension were disposed by directing the

respondents to revoke the suspension order, but observed that the charge memo cannot be quashed.

1.7. It is stated that thereafter the enquiry commenced only on 15.9.2003, after two years from the date of judgment of the Tribunal and by that

time, the said Theni Sridharan was released. After examining the prosecution witnesses and defence witnesses, when the petitioner insisted for

examining Theni Sridharan, the said request was not considered and the enquiry was closed on 30.10.2003. The fourth respondent by proceedings

dated 23.2.2004 communicated to the petitioner the report of the Enquiry Officer dated 11.2.2004 in which the Enquiry Officer has found that the

charges have been proved and ultimately, the fourth respondent has passed the impugned order dated 18.3.2004 dismissing the petitioner from

service.

1.8. The petitioner filed appeal to the third respondent on 28.3.2004 and the same was also rejected on 3.5.2004. Against the same, a revision

petition was filed before the second respondent on 24.5.2004, which was also rejected on 20.8.2004. The mercy petition filed to the first

respondent on 27.9.2004 was also rejected by order dated 22.3.2007, after considering the report of the Tamil Nadu Public Service Commission

advising the Government to reject the mercy petition.

1.9. The impugned orders are challenged on the grounds that the enquiry was not conducted in the manner known to law, especially as per Rule

17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules; that the main person who has given the complaint has not been examined as

witness; that no independent witness was been examined except department persons; and that no opportunity was given to the petitioner by the

Appellate Authority, apart from many other grounds.

2.1. In the counter affidavit filed on behalf of the respondents, while denying the various allegations made by the petitioner in the writ petition, it is

stated that on 16.8.2002, when the petitioner was working at Sub Jail, Sathiyamangalam, it was found that the petitioner has gone out of the jail

without handing over the prisoners properly and a charge under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules was

framed and an order of punishment was passed against him on 10.12.2002 postponing increment for a period of three months without cumulative

effect.

2.2. It is stated that the petitioner was placed under suspension with effect from 28.2.2001 due to wilful negligence of duty and he was dealt with

under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules by memo dated 1.3.2001 issued by the fourth respondent. It is

stated that the petitioner was assigned hospital rear para duty on 28.2.2001 between 6 a.m. and 1 p.m. and without reporting duty he has entered

into ""A"" Class prisoners block to attend nature''s call in the open trench which has resulted in clash with the remand prisoner, Theni Sridharan, who

objected to the using of open trench in front of the cell and requested to use the toilet available.

2.3. It is stated that the petitioner along with other warders took the remand prisoner out of the cell and assaulted him and that after the Jailor and

Deputy Jailor separated them and put the remand prisoner in the cell the situation pacified and even thereafter, the petitioner rushed to the cell and

beat the remand prisoner with batten through the iron gate gap causing bleeding injuries to him. It is stated that even if the remand prisoner has

abused him, as a Warder it was the duty of the petitioner to inform to the higher officials and therefore, the conduct of the petitioner resulted in

human rights violation .

2.4. It is stated that in Coimbatore Prison, hard core prisoners are lodged and no prisoner is allowed to roam about freely and therefore, it is

denied that the said Theni Sridharan was let off to roam about. The petitioner being an executive staff should act within the frameworks of Prison

Rules and Regulations and cannot take away the rights of the prisoners by acting rudely and the act of the petitioner is in violation of the Tamil

Nadu Prison Manual.

2.5. It is stated that only the warders who are on duty who will be allowed to go into the main gate of the prison and not other warders and

therefore, the petitioner was responsible for the incident. The Jailor, Manickam deposed that he along with the Deputy Jailor, Sekar separated the

remand prisoner and lodged him in the cell and that the petitioner rushed to the cell and beat the remand prisoner through the gap in the iron gate. It

is stated that the remand prisoner was sent to prison hospital for first aid treatment at once and that when the prisoner was taken to the hospital he

was in serious condition and concentration was on giving treatment to him than to make necessary entries in the concerned register and therefore,

the entries regarding the treatment were made afterwards. It is stated that Muthupandi, Grade II Warder was present in the jail during the incident

and the petitioner has made a false statement.

2.6. It is stated that as per Rule 76(o) of the Tamil Nadu Prison Manual Vol.II, it is the duty of the warders to see that care and welfare of the

prisoners are ensured and that as per Rule 144 of the Tamil Nadu Prison Manual Vol.II, no prison officer shall on any pretext strike a prisoner

except in self defence. It is stated that even hard core prisoners are expected to be treated with humanitarian consideration by the prison officers.

2.7. It is stated that the Enquiry Officer has not sent any letter on 27.3.2001 and that only on 17.3.2001, one letter was sent to the petitioner by

the fourth respondent and not the enquiry officer to submit his explanation to the charge memo within ten days and the petitioner has given a wrong

statement. It is stated that the Additional Superintendent of Prisons, Salem was appointed as Enquiry Officer by the Tribunal by order dated

21.12.2001 made in O.A. No. 3308 of 2001 and that since the post was vacant during that time, a revised order was sought for from Tribunal on

11.3.2002 and since the revised order of the Tribunal was not received and in the meantime the Additional Superintendent of Prison, Central

Prison, Salem post was filled up, the matter was referred to the Tribunal and thereafter, Mr. Durairaj, Additional Superintendent of Prisons,

Central Prison, Salem was appointed as Enquiry Officer. It is stated that there is no violation of the Rules in conducting the enquiry.

2.8. It is stated that the remand prisoner has refused to take treatment from the Medical Officer and the Medical Officer has furnished a report and

that was submitted during the enquiry. It is stated that latrine facility is available but the petitioner has wantonly used the open ditch, which is not

permissible. While it is admitted that the defence witnesses ''Charles and Pownesan, Grade II Warders have stated that no injuries were caused to

Theni Sridharan, it is stated that the impugned order of the fourth respondent is perfectly in order, since the charges against the petitioner have been

proved. Since the report of the Enquiry Officer is categoric, the third respondent has examined the case carefully and rejected the appeal and

likewise, the revision petition and mercy petition of the petitioner have been rejected.

2.9. It is again reiterated that enquiry has been conducted in the manner known to law; that there is no violation of Tamil Nadu Civil Services

(Discipline and Appeal) Rules and the Prison Rules; and that the conduct of the petitioner resulted in human rights violation and therefore, the same

cannot be taken lightly. It is the case of the respondents that the impugned order of dismissal passed against the petitioner is perfectly in order and

due opportunity has been given to the petitioner.

3.1. Mr. S. Selvathirumurugan, learned Counsel appearing for the petitioner would mainly submit on the basis of the various aspects of depositions

made by witnesses to substantiate his case that by appreciation of the evidence of various witnesses examined on the side of the prosecution it will

be proved that no case has been made out against the petitioner. He would also submit that the Appellate Authority has not given reasons, for

which he would rely upon the decision in Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan

Varshney and Others, .

3.2. The learned Counsel has mainly concentrated on the point that when the evidence of P.W. 1 was that apart from the petitioner ten more

persons have involved in the clash, it is only the petitioner who has been chosen which is nothing but victimization and selective discrimination. In

support of the said contention he would rely upon the decisions in E.S. Reddi Vs. Chief Secretary, Government of A.P. and Another, ; K.

Sukhendar Reddy Vs. State of Andhra Pradesh and Another, ; and Tata Engineering and Locomotive Co. Ltd. Vs. Jitendra Pd. Singh and

Another, .

3.3. To substantiate his contention that there should be parity in punishment he would rely upon the decision in The Director General of Police and

Others Vs. G. Dasayan, .

3.4. Therefore, the main contentions of the learned Counsel for the petitioner are that of selective discrimination; that Theni Sridharan, who has

given complaint, has not been examined in spite of request; that there has been a delay from the date of framing of charges in the year 2001 and the

starting of the enquiry; that the punishment is disproportionate; and that the Appellate Authority has not given reasons while confirming the order of

the Original Authority.

4.1. On the other hand, it is the case of Mr. R. Murali, learned Government Advocate appearing for the respondents that the charge against the

petitioner is a serious one, which is a human rights violation. It is his submission that, admittedly, the petitioner was given opportunity to give

explanation and participate in the enquiry and in fact, he has also examined the witnesses and it was only after considering all the aspects the

impugned order of punishment was passed by the fourth respondent on appreciation of evidence and that in the disciplinary proceedings the High

Court under Article 226 of the Constitution of India cannot appreciate the evidence as an Appellate Authority. It is his contention that in

disciplinary proceedings the standard of proof required is preponderance of probabilities and not proof beyond reasonable doubt for the purpose

of deciding the delinquency.

4.2. It is his submission that the Doctor''s evidence is clear and he was even cross-examined by the petitioner and therefore, it cannot be said that it

is a case of no evidence. He would rely upon the decision in Secretary to Government, Home Deptt. and Others Vs. Srivaikundathan, .

4.3. He would also submit that whether removal or dismissal is proper punishment is for the authorities to decide, especially in the circumstances

when the charges levelled against the petitioner are relating to human rights violation to which the Government is responsible. He would rely upon

the decision in State Bank of India and Ors. v. Ramesh Dinkar Punde (2007) 7 MLJ 848.

I have heard the learned Counsel for the petitioner and the respondents and considered the entire issue involved in the case, apart from the

documents.

At the first instance, it has to be stated that the attempt of the learned Counsel for the petitioner to go in detail on the various depositions and

evidence of witnesses in departmental proceedings is not permissible while deciding the issue under Article 226 of the Constitution of India. It is

well settled that while deciding about the validity or otherwise of the punishment imposed on the delinquent in departmental proceedings, the scope

of interference of this Court under Article 226 of the Constitution of India in respect of appreciation of evidence of various persons who have

deposed in the enquiry is very limited. This Court while deciding about the validity or otherwise of the punishment imposed is not sitting as a

Appellate Authority to appreciate evidence and is mainly concerned about the procedural irregularities for the purpose of completing the enquiry

not only in the manner known to law, but on the basis of basic principles like principles of natural justice, fairness, etc.

The contention of the learned Counsel for the petitioner by elaborately referring to various evidence is that one of the witnesses has stated that

the injury caused to Theni Sridharan was a minor injury while the charge is that he has been treated in a serious condition and therefore, there is a

contradiction; that the said Theni Sridharan, if he was produced, would have given evidence in favour of the petitioner; and that as per Rule 144 of

the Tamil Nadu Prison Manual Vol. II, Warder can use force for the purpose of self defence.

All these factual aspects cannot be gone into by this Court. As correctly submitted by the learned Counsel for the respondents, what is

projected in this writ petition is not a case of no evidence, but the contention is non appreciation of evidence and the material nature of evidence

required for the purpose of punishment. When admittedly Theni Sridharan has given complaint and the happening of the incident has not been

denied, the Enquiry Officer on fact has concluded that for the happening of the assault the petitioner was responsible and in such factual situation

there is nothing for this Court to interfere.

There is absolutely no substance in the contention of the learned Counsel for the petitioner that while the Tribunal has vacated the stay in respect

of the disciplinary proceedings in the year 2001, the enquiry has commenced in the year 2003 and therefore, there is a delay and that the

respondents purposely waited for the release of Theni Sridharan. The counter affidavit itself shows that in respect of the appointment of Enquiry

Officer there has been some delay since the post was not filled up, and that appointment of another Enquiry Officer and so on was sought for

before the Tribunal and therefore, it cannot be stated to be a case of delay without any reason, for interfering with the enquiry proceedings. The

entire evidence on record shows that the petitioner has fully participated in the enquiry and subjected himself to cross-examination and he also

cross-examined the prosecution witnesses.

As far as the plea of selective discrimination is concerned, law is well settled that Article 14 of the Constitution of India cannot be used for the

purpose of enforcing negative rights. The main charge appears to be not even the assault stated to have happened in the open air between Theni

Sridharan and the petitioner and others, but more serious thing is that after the assault took place the remand prisoner was separated and put in cell

and thereafter, the petitioner has caused injuries to him and it was that aspect of it that was taken note for the purpose of granting the maximum

punishment and therefore, this cannot be a case which can be compared to disproportionate punishment shocking to the conscience for this Court

to interfere.

The impugned order of the original authority, namely the fourth respondent shows that the fourth respondent has considered not only the entire

factual issue but also taken note of the explanation submitted by the petitioner to the final show cause notice wherein he has admitted the conduct

and therefore, awarded the punishment of dismissal from service. A reference to the order of the third respondent dated 1.5.2004 shows that the

third respondent has referred to the factual position and in fact stated that a criminal action can be taken against the petitioner u/s 54(1) of the

Indian Prisons Act, 1894, since the persons responsible to protect the prisoners cannot involve in assault in any circumstance and the third

respondent has stated that in such circumstances allowing such persons in the department will result in repetition of such conducts and therefore,

confirmed the order of punishment.

It is a well settled principle of law that when once the appellate authority confirms the order of the original authority there is no need to have

elaborate discussion about the facts except to show that there has been some application of mind. As I have stated above, the Appellate Authority

has, in fact, applied its mind and therefore, I am of the considered view that this is not a case where this Court can interfere with the impugned

order of punishment passed by the respondents.

I have taken the said stand also due to the reason that the Prison Doctor in the departmental proceedings has clearly deposed that there has

been an injury caused to the remand prisoner. Whether such injury is serious or not is not the issue, but it is the conduct of the petitioner in having

involved in such unpleasant situation which has to be taken note of. Further, mere non examination of the remand prisoner cannot be fatal to the

prosecution case on the facts.

Inasmuch as there are prima facie materials to come to the conclusion, as it is seen in the report of the Enquiry Officer, that such incident has

taken place, which is certainly a human rights violation, and there is evidence to show that the petitioner is involved, there is no justification to

contend that the quantum of punishment awarded should be interfered with.

In respect of selective discrimination, in Tata Engineering and Locomotive Co. Ltd. Vs. Jitendra Pd. Singh and Another, in the context of three

workmen involved in a misconduct who were found guilty, out of whom one was punished with one month suspension, other was reinstated as per

the direction of the Labour Court, and the third person was singled out for dismissal from service, the Supreme Court held that the connection

between misconduct and employment of workman may not be of much significance when such act has taken place within the premises of the

factory and that should be decided in appropriate cases.

In Secretary to Government, Home Deptt. and Others Vs. Srivaikundathan, the Supreme Court has held that unless the finding of the Enquiry

Officer is perverse or based on no evidence, scope of judicial review is very limited. The Supreme Court has held as follows:

The respondent filed an application before the Tamil Nadu Administrative Tribunal for setting aside the order of punishment. The Tribunal has

set aside the punishment of removal from service and has remitted the matter to the Superintendent of Police to reconsider the extent of the guilt of

the respondent with the stipulation that no punishment involving termination of service should be imposed on the respondent. The Tribunal has also

directed reinstatement of the respondent in service. The appellants have, therefore, preferred the present appeal.

The Tamil Nadu Administrative Tribunal has re-examined the entire evidence which was led before the Enquiry Officer and has come to the

conclusion that the Enquiry Officer erred in holding the respondent guilty without examining the exact role of the respondent in respect of the

escape of the prisoner. The Tribunal was not sitting in appeal over the findings of the Enquiry Officer, nor was the Tribunal required to examine the

nature of the evidence which was led as if it were a criminal trial. Unless the findings were perverse, or unless it was found that there was no

evidence whatsoever before the Enquiry Officer, the Tribunal could not have set aside the findings of the Enquiry Officer merely by expressing

dissatisfaction with the evidence which was led. In the present case, there was a clear evidence pointing to the guilt of the two employees who had

not merely allowed the prisoner who was entrusted to their custody to escape, but had also lodged a false complaint in that connection. The

Tribunal was not justified in setting aside the findings of the Enquiry Officer and remitting the matter as it did see in this connection State of Haryana

and Another Vs. Rattan Singh, .

The reliance placed by the learned Counsel for the petitioner on the decision in E.S. Reddi Vs. Chief Secretary, Government of A.P. and

Another, relates to a case where the Supreme Court has held that if such plea of selective action is prima facie proved, the Court can compel the

Government to take similar adverse action against the other equally culpable officers also. But, unfortunately, the said judgment is not applicable to

the facts of the present case.

Again the reference made to the decision of the Supreme Court K. Sukhendar Reddy Vs. State of Andhra Pradesh and Another, by the

learned Counsel for the petitioner relates to the arbitrary suspension of an IAS Officer pending investigation for many years and not resorting to

such suspension in respect to other officers and it was in those circumstances held that to keep an officer under suspension selectively

contemplating disciplinary proceeding for indefinite period is not permissible.

It was also held in Vice-Chancellor, Vice Chancellor, M.D. University, Rohtak Vs. Jahan Singh, that the benefit conferred to one person

illegally cannot be claimed by other persons on the ground of equality, holding that Article 14 of the Constitution of India cannot be invoked to

perpetuate illegality and Article 14 is a positive concept. In the said decision, it was held as follows:

Even assuming the respondent and the said Shri Taneja were similarly situated, we may observe that Article 14 of the Constitution of India

carries with it a positive concept. Article 14 of the Constitution cannot be invoked, for perpetuating illegality. See Kuldeep Singh Vs. Govt. of

NCT of Delhi, .

It is true that the Supreme Court in District Judge, Bahraich and Anr. v. Munijar Prasad, 2002 1 LLJ 461 has held that if the punishment of

removal is shockingly disproportionate the court can interfere. But, as stated above, I am of the considered view that the facts of the case do not

drive to a conclusion that the punishment imposed on the petitioner is shockingly disproportionate.

The Supreme Court has time and again come down heavily against the High Court acting as an Appellate Authority in disciplinary proceedings

as it is indicated in State Bank of India and Ors. v. Ramesh Dinkar Punde (2007) 7 MLJ 848 as follows:

Before we proceed further, we may observe at this stage that it is unfortunate that the High Court has acted as an Appellate Authority despite

the consistent view taken by this Court that the High Court and the Tribunal while exercising the judicial review do not act as an Appellate

Authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of

justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by re-appreciating the evidence as an

Appellate Authority. (See Govt. of A.P. and Others Vs. Mohd. Narsullah Khan, at page SCC 379).

***

It is impermissible for the High Court to re-appreciate the evidence which had been considered by the inquiry officer, a disciplinary authority and

the Appellate Authority. The finding of the High Court, on facts, runs to the teeth of the evidence on record.

It was also held in U.P. State Road Transport Corpn. and Others Vs. A.K. Parul, while deciding about the powers of this Court under Article

226 of the Constitution of India with regard to interference with orders of punishment, as under:

Aggrieved by that, this appeal is filed by the appellant. This Court consistently has taken the view that while exercising judicial review the courts

shall not normally interfere with the punishment imposed by the authorities and this will be more so when the Court finds the charges were proved.

The interference with the punishment on the facts of this case cannot be sustained. In State Bank of India and Others Vs. Samarendra Kishore

Endow and Another, this Court held that imposition of proper punishment is within the discretion and judgment of the Disciplinary Authority. It may

be open to the appellate authority to interfere with it, but not to the High Court or to the Administrative Tribunal for the reasons that the jurisdiction

of the Tribunal is similar to the powers of the High Court under Article 226. As noticed earlier, the High Court, having found the charges proved, is

not justified in interfering with the punishment imposed by the Disciplinary Authority, particularly when in this case, the respondent was once

removed from service on the charge of corruption and again reinstated. On the facts, the interference by the High Court was not at all justified.

For the reasons aforesaid, finding no scope to interfere with the impugned orders of the respondents, this writ petition is dismissed. No costs.