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Judgment
Srinivasan, J.—This writ petition has to be allowed on a very short ground, namely, R.6 (1) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955 has not been followed by the appellate authority. In this case, the appellate authority is the second respondent, viz., the Commissioner of Police, Madras. Four charges were framed against the petitioner herein who was a police constable attached to the Royapettah Hospital Police Station. The charges were as follows- (1) Misbehaviour towards H.C. 4289 Ravikumar and indecent behaviour at 12-45 hours on 1-8-1987.
(2) The absence at roll call at 6 a.m. and 6-45 a.m. on 2-8-1987.
(3) Highhanded action in assaulting an asthma patient Mari on the night of 3-8-1987.
(4) Having accumulated a number of punishments.
Evidence was recorded and the enquiry officer gave findings against the petitioner on all the charges. The findings were accepted by the first respondent who passed an order on 9-2-1988 dismissing the petitioner from service.
On appeal, the second respondent confirmed the findings of the disciplinary authority, but reduced the punishment to compulsory retirement. The order passed by the appellate authority is a cryptic one and the relevant portion reads as follows�
I have carefully gone through the appeal petition, P.R. file, and the connected records...
(4) The appeal is nothing but an attempt to discredit a few prosecution witnesses. No material has been furnished to disprove the charges in three counts that has been brought out clearly and convincingly against him. The fourth count of course, has no scope for appeal being a catalogue of his bad record. Any of these four grounds by itself warrants the extreme penalty. In their aggregation, they give no choice to the punishing authority but to dismiss the chronic and incorrigible member of the force.
(5) However, considering the effect of his dismissal on his family, I modify the same to compulsory retirement.
R.6 (1) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955 reads as follows�
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 as it thinks proper.
The rule enjoins the concerned authority to consider the three aspects set out therein specifically. Unless the appellate authority considers them it cannot be said that it has carried out its duties properly. The Supreme Court had occasion to discuss a similar question under R. 27 (2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Dealing with the word ''consider'' used in the said rule, the Supreme Court observed that the word ''consider'' implies due application of mind�vide R.P. Bhatt Vs. Union of India and Ors (UOI) ., The following paragraph in the above judgment of the Supreme Court can be usefully referred to with advantage�
The word ''consider'' in R.27 (2) implies ''due application of mind''. It is clear upon the terms of R.27 (2) that the appellate authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) Whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) Whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc, the penalty, or may remit back the case to the authority which imposed the same. R.27 (2) casts a duty on the appellate authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof.
There is no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down in the Rules had been complied with and if not, whether such non-compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were unwarranted by the evidence on record. It seems that he only applied his mind to the requirement of clause (2) of R.27 (2) viz., whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of R.27 (2) of the Rules, the impugned order passed by the Director General is liable to be set aside.
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 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 R.6 (1) of the Rules, the order is vitiated. On this ground the order is liable to be quashed.
Learned counsel for the petitioner urged on the merits and submitted that the evidence on record does not make out the charges framed against the petitioner. I do not go into the same in the view I have taken in this matter. It is also urged by the learned counsel for the petitioner that he should be given a further opportunity with regard to the third charge as he had only deferred cross-examination of witnesses for non-availability of certain records required by him. It is open to the petitioner to move the appellate authority with regard to the same and the appellate authority will consider his request and pass appropriate orders. In the result, the writ petition is allowed and the order of the second respondent in Rc.No. 27/AP/PP 1 (4) 88 dated 10-3-1988 is quashed. The second respondent will consider the appeal filed by the petitioner and dispose of the same in accordance with R.6 (1) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal,) Rules, 1955. There will be no order as to costs.