K. Kandasamy vs Deputy Inspector-General of Police, Tiruchirappalli Range and Superintendent of Police

V. Ramasubramanian, J.—The petitioner was issued with a charge memo dated 7.11.1994, primarily accusing him of insubordination and

abusing his superior Officer and acting in a manner unbecoming of a Government Servant. The petitioner submitted his explanation on 11.3.1995.

An enquiry followed and the enquiry officer submitted a report dated 28.3.1995 in his minute in PR No. 297/94 holding the charge proved.

After furnishing a copy of the enquiry report and receiving further representation of the petitioner, the second respondent herein passed final

orders on 26.5.1995, imposing the penalty of reduction in the time scale of pay by three stages for three years with cumulative effect.

Aggrieved by the said order of penalty, the petitioner filed an appeal to the first respondent on 7.7.1995. The said appeal was rejected by the

first respondent by an order dated 29.9.1995. Challenging the said order, the petitioner filed O.A. No. 1520 of 1996 on the file of the Tamil Nadu

Administrative Tribunal. On the abolition of the Tribunal, the said application has been transferred to this Court in W.P. No. 18827 of 2006.

I have heard Mr. S. Ravi, learned Counsel appearing for the petitioner and Mr. V. Arun, learned Government Advocate appearing for the

respondents.

Though the order impugned in the writ petition is attacked on several grounds such as perversity of findings and the lack of sufficient

opportunities to defend himself in the enquiry, I do not wish to go into those questions, in view of the short ground on which the writ petition could

be disposed of.

It is seen from the order passed by the Appellate Authority dated 29.9.1995 that it was a laconic non-speaking order. After extracting the

charge, the Appellate Authority has passed an order running to about three lines and the operative portion of the said order reads as follows:

I have carefully gone through the Appeal petition, PR file and connected records. The delinquency committed by the delinquent in discipline force

requires serious punishment. Hence, there is no need to interfere the punishment already awarded. The appeal is rejected.

It is seen from the aforesaid portion of the impugned order that the Appellate Authority did not deal with any of the grounds of appeal raised by

the petitioner. A departmental appeal is a continuation of the original proceedings. It is needless to point out that the last opportunity available for a

delinquent, to canvass his case on merits, is at the appellate stage. After the appeal, a delinquent loses his right to challenge any disciplinary

proceedings on merits, since the scope of interference on a revision or on a writ petition is very limited. Therefore, the rules themselves

contemplate appellate authorities to go into the factual details and consider all the grounds of appeal before deciding an appeal. Unfortunately, the

first respondent has chosen to dismiss the appeal by a non-speaking order and hence the appellate authorities order is liable to be set aside.

A similar question came up for consideration before this Court in Arokiadoss v. The Deputy Commissioner of Police, Law and Order (South),

Madras-8 and Anr. 1989 W.L.R. 274. In the said case also, an identical order similar to the one involved in the present case was passed by the

Appellate Authority. Therefore, after considering the scope of the powers conferred upon the Appellate Authority, this Court held as follows in

paragraph-3:

Rule 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 Rule 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 thanks 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 Rule 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 Rule 27(2) implies ''due application of mind''. It is clear upon the terms of Rule 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. Rule 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 Rule 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 Rule 27(2) of the Rules, the impugned order passed by the Director General is liable to be set aside.

Thus it is clear that the appellate authority''s order is in violation of the rules relating to disposal of appeals and consequently, it is liable to be set

aside. Therefore, the writ petition is allowed. The order passed by the first respondent dated 29.9.1995 is set aside and the matter remitted back

to the first respondent for a fresh disposal on merits in accordance with law and the said exercise shall be completed by the first respondent within

a period of four months from the date of receipt or production of a copy of this order. No costs.