Tharmar vs The Additional Director General of Police (L and O), The Inspector General of Police and The Commissioner of Police and The Deputy Inspector General of Police

D. Hariparanthamanw, J.—The Petitioner was recruited as Sub Inspector of Police, by an order dated 02.11.1979 and he was promoted

as Inspector of Police in the year 1994. While so, the charge memo dated 17.08.2005 was issued u/s 3 (b) of the Tamil Nadu Police Subordinate

Services (Discipline and Appeal) Rules, 1955. He submitted his explanation denying the charges. However, an enquiry officer was appointed and

he was conducted an enquiry and submitted his report. The enquiry officer found that the charges were established. Based on that, the second

Respondent, imposed the punishment of stoppage of postponement of increment for a period of two years without cumulative effect on the

Petitioner on 14.01.2008.

Aggrieved by the order of the second Respondent, the Petitioner filed an appeal to the first Respondent. The first Respondent passed the

impugned order, dated 10.06.2008, and in which the punishment was reduced from the postponement of increment of two years without

cumulative effect to postponement of increment for one year without cumulative effect. The Petitioner has questioned the same and filed the writ

petition to quash the order of the second Respondent dated 14.01.2008 and the order of the first Respondent dated 10.06.2008.

According to the Petitioner, the allegations were that the Petitioner abused the Women Constable, but none of the Women Constable examined

in the enquiry supported the charge. But the enquiry officer still held that the charges were established and the punishing authority as well as the

appellate authority concurred with such findings. According to the Petitioner, the appellate authority failed to comply with Rule 6(1) of the Tamil

Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955.

The Respondent filed counter affidavit refuting the allegations and sought for the dismissal of the writ petition.

Heard Mr. M.E. Ilango, learned Counsel appearing for the Petitioner and Mr. Pala. Ramasamy, learned Special Government Pleader appearing

for the Respondents.

The leaned Counsel for the Petitioner submits that he has specifically pleaded in ground No. 2 that none of the Women Police Constable

trainees examined in the enquiry deposed against the Petitioner when the charge was that the Petitioner abused them. It is submitted that there is no

specific denial of the same in the counter affidavit filed by the Respondents.

The learned Counsel for the Petitioner submits that the appellate authority failed to comply with Rule 6(1) of the Tamil Nadu Police Subordinate

Services (Discipline and Appeal) Rules, 1955 and the matter is squarely covered by the decision of this Court in Arokiadoss v. Deputy

Commissioner of Police reported in 1989 Writ L.R. 274.

On the other hand, the learned Additional Government Pleader, has sought for dismissal of the writ petition by reiterating the averments made in

the counter affidavit.

I have considered the submissions made on either side.

The charge against the Petitioner is as follows:

While working as Inspector of Police at Othakadai Police Station from 09.04.2003 onwards; on the night of 29.11.2003, while the Women Sub

Inspector of Police, Othakadai Police Station Tmt. Panchavarnam was giving a small party at Hotel North Gate situated at Tallakulam to the

Women Police Constables who had come to the Taluka, Othakadai Police Station for training and had completed it, had attempted to misbehave

with the said trainee Women Constable by using unparliamentary words and upon the alarm raised by them you left the place and has brought

disrepute to the discipline police force amounting to reprehensible misconduct.

In support of the charge, the Women Police Constable trainees were examined. According to the Petitioner, none of the Women Constable

supported the charge, but the enquiry officer held that the charges were proved and based on such findings, the second Respondent imposed the

punishment as stated above. When the appeal was filed, the appellate authority has passed the order, dated 10.6.2008 as stated above. Para 5 of

the order of the appellate authority is extracted hereunder:

I have gone through the Appeal petition and connected records carefully. I accept the findings of the Enquiry Officer. Considering the nature of

delinquency the punishment awarded is excessive. Hence, I modify the same into ""Postponement of increment for one year and the period of

postponement of increment shall not operate to postpone his future increments.

According to the Petitioner, the aforesaid finding of the appellate authority shows that the appellate authority failed to exercise his power as

contemplated under Rule 6(1) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955. Rule 6(1) of the Tamil Nadu

Police Subordinate Services (Discipline and Appeal) Rules, 1955 is as extracted hereunder:

In the case of an appeal against an order imposing any penalty specified in R.2, the appellate authority shall consider-

(a) Whether the facts on which the order was based have been established;

(b) Whether the facts established afford sufficient ground for taking action, and (c) Whether the penalty is excessive, adequate or inadequate, and

after such consideration shall pass orders.

In my considered view, the submission of the learned Counsel for the Petitioner has much force and the aforesaid finding of the appellate

authority on merits would indicate the non application of mind of the appellate authority to the materials on record in the enquiry. As per Rule 6(1)

of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955, the appellate authority has to record a finding, as to whether

the facts, based on which the punishment was imposed, have been established. Thus the authority has not gone in to merit and recorded its finding

thereon. Instead he simply stated that he looked into the records and concurred with the same. The judgment of this Court Arokiadoss v. Deputy

Commissioner of Police reported in 1989 Writ L.R. 274, is squarely applicable to the facts of the present case and para 4 of the said judgment is

extracted hereunder:

In the present case, the order of the appellate authority does not indicate, whether the appellate authority considered the materials on record in

the light of Rule 6(1) of the Rules. He should have discussed the relevant evidence and found whether the facts on which the order of the

disciplinary authority was based have been established. He should have also considered whether the facts afford sufficient ground for taking

disciplinary action and whether the penalty is excessive, adequate or inadequate. As the order of the appellate authority does not show that he has

considered the relevant matters prescribed under Rule 6(1) of the Rules, the order is vitiated. On this ground the order is liable to be quashed.

The learned Counsel for the Petitioner has also relied upon the another judgment of this Court in Joint Commissioner of Police, Chennai and

Another v. G. Anandan reported in (2008) 5 MLJ 1545 (Mad-NOC). The following passage in the said judgment is extracted hereunder: .. The

word consider in Rule 6 would imply due application of mind. Rule 6(1) requires that the appellate authority shall give a finding while considering

the appeal on the facts on which the order is based, among other things, Rule 6 also requires that the appellate authority should consider whether

the penalty is excessive, adequate or inadequate, and then pass orders confirming enhancing, reducing or setting aside the penalty or remit the case

to the appropriate authority, with directions. If the order of the appellate authority merely stated that he has gone thorough the representation of the

employee, minutes and the order passed by the punishing authority and dismissed the appeal, it would be a non speaking order and would not be

sustained.

Hence, I am of the view that the order of the appellate authority is liable to be set aside. Accordingly, the order of the appellate authority is set

aside and the matter is remanded back to the appellate authority to pass fresh order in compliance with Rule 6(1) of the Tamil Nadu Police

Subordinate Services (Discipline and Appeal) Rules, 1955. The appellate authority is directed to complete the aforesaid exercise within a period of

eight weeks from the date of receipt of a copy of this order. The writ petition is ordered accordingly. No costs.