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Judgment
T. Raja, J.—In the present writ petition directed against the punishment of compulsory retirement imposed against him by the Disciplinary
Authority, the Petitioner seeks for issuance of a writ of certiorarified mandamus to call for the records relating to the proceedings of R-3 in C. No.
E1/PR. II /2004, dated 26.10.2004, to quash the same and to consequentially direct the Respondents to reinstate him into service with all
attendant benefits and continuity of service.
Learned Counsel for the Petitioner submits that the procedure contemplated under Rule 17 (b) (ii) of the Tamil Nadu Civil Services (Discipline
and Appeal) Rules (in short ''Rules''), provides that before imposing any major penalty on the delinquent employee based on the Enquiry Officer''s
Report, a second show cause notice along with a copy of the Enquiry Officer''s Report should be sent by the Authority, calling upon the delinquent
to submit his explanation for the same, but the same has not been followed. The Petitioner has wrongly quoted Rule 17(b) of the TNCS (D&A)
Rules as he is actually governed by the TNPSS (D&A) Rules, 1955. In other words, when it is proposed to impose on a member of service
holding a civil post under the State any of the major penalties specified in Rule 8 of the Rules, a duty is cast upon the Disciplinary Authority to issue
a second show case notice before imposing the major penalty and failure to adhere to such mandatory procedure would adversely affect the
disciplinary proceedings and the ultimate outcome thereof. By stating that it is the duty of the Enquiry Officer to bring out the facts of the case to
enable to the Disciplinary Authority to arrive at correct conclusions, learned Counsel further submits that, in the present case, the Enquiry Officer
prepared the Report without even discussing the merits of the evidence led before him, thereby, there was non-application of mind on the part of
the said Officer and, without even taking note of such crucial aspect, the Disciplinary Authority too proceeded in a misconceived manner to impose
the major punishment of compulsory retirement from service. Therefore, when there is apparent violation of the procedure adumbrated in the
Rules, the impugned proceedings are liable to be quashed as it is also volatize of the principles laid down in Article 14 of the Constitution of India.
By pointing out that a sum of Rs. 43,152/-given to the Petitioner to clear the dues in respect of the bill amount of Rs. 25,800/-towards uniform
tailoring charges and Rs. 17,352/-for purchase of steel admiral from TANSI was remitted by him on 30.03.2004 as per the instructions given by
the Inspector (Stores) and such repayment was acknowledged by way of receipt which was duly signed by the Inspector (Stores), the other
interesting segment of the argument advanced by the learned Counsel for the Petitioner is that had the Enquiry Officer diligently conducted the
enquiry by taking note of such crucial aspects, definitely he would not have drawn an adverse inference and conclusion against the Petitioner. But
unfortunately, a wrong conclusion has been reached by the Enquiry Officer against whom the Petitioner made allegations and requested for change
of Enquiry Officer, however, such request was abruptly rejected. The allegations made against the Enquiry Officer having not been taken serious
note of, the Petitioner also refused to participate in the enquiry, and deliberately ignoring the acknowledgement for remittance of Rs. 43,152/-with
the Inspector (Stores) substantiating the case of the Petitioner that he never misappropriated the money of the police Department, the biased
Enquiry Officer proceeded with a strong pre-determination to hold against the Petitioner and, in gross violation of the procedure stipulated in the
Rules, he ultimately concluded that the charges against the Petitioner stand proved. Therefore, learned Counsel pleads that, apart from quashing the
proceedings and ordering re-instatement, a direction may also be issued to the 4th Respondent to refund the sum of Rs. 45,621/-.
Per contra, learned Government Advocate refuted the arguments advanced by the learned Counsel for the Petitioner by stating that, as against
the Petitioner, while serving as Havildar in Stores, TSP VII Battalion, Palani, the Quarter master, Stores, sent a detailed report dated 01.09.2004,
to the Headquarters pointing out certain irregularities including misappropriation of a sum of Rs. 43,152/-. After careful examination of such report,
Assistant Commandant-III of the Battalion was ordered to conduct a preliminary enquiry and forward his report. There port submitted subsequent
to such enquiry revealed that the Petitioner misappropriated government money to the tune of Rs. 43,152/-intended to be disbursed to TANSI,
Palani, and Armed Reserve, Coimbatore. As the act of misappropriation was very serious in nature, the Petitioner was placed under suspension by
order dated 02.09.2004. Thereafter, it was contemplated to proceed against him departmentally by proceedings in P.R. No. 11/2004 under Rule-
3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955 (in short ''Police Rules''). After receipt of the charge
memo by the Petitioner on 23.09.2004, he submitted his explanation stating that he did not desire to serve with a stain in the dignified Police Force.
The Petitioner sought the permission of the 2nd Respondent to relieve him from duty to hand over the amount in question to the parties concerned
but the 2nd Respondent asked the Petitioner to be present at the station. Thereafter, on 04.09.2004 and 08.09.2004, the Petitioner returned the
money to the Quarter Master, Stores, with proper cash memos signed by him. This fact would go to show that the Petitioner temporarily
misappropriated the government money given for purchase of admiral and disbursement of stitching charges for police uniforms. According to the
learned Government Advocate, when money transaction in Store is done only in the form of cash memo, expenditure voucher and receipt voucher,
the version of the Petitioner that he paid back the money to the 2nd Respondent on 30.03.2004 can not be accepted as there was no proof of
cash memo certifying his repayment on the said date. It is further submitted that the Petitioner never submitted any petition or representation,
making allegations against the Enquiry officer, to any of the Officers or requested to change the Enquiry Officer. At any rate, the Petitioner himself
did not desire to continue in service due to the irregularities committed by him and taking into consideration all relevant aspects governing the case
of the Petitioner, he was imposed with the penalty of compulsory retirement from service and such punishment imposed being proportionate to the
delinquency, there is no scope for interference at all.
Considered the submissions made on either side.
By charge proceedings, dated 02.09.2004, the delinquencies noted against the Petitioner are (a) highly reprehensible and in disciplinary conduct
in having detained a sum of Rs. 17352/-towards the cost of three Steel Almirahs payable to TANSI, Palani, with himself for 21 weeks from
30.03.2004 and thereby committed temporary misappropriation of Government money; and (b) highly reprehensible and in disciplinary conduct in
having failed to disburse a sum of Rs. 25,800/-representing stitching charges payable to the police personnel who were transferred from T.S.P. VII
Battalion to Armed Reserve, Coimbatore City, for 22 weeks from 19.03.2004 and thereby committed temporary misappropriation of Government
money. It is stated that, in the explanation offered by the Petitioner on 23.09.2004, he expressed his desire not to serve with a stain in the dignified
police force. In the course of oral enquiry conducted by the Assistant Commandant-I, 6 witnesses were examined and 10 documents came to be
marked on behalf of the Department and despite the summons, duly served on the Petitioner under proper acknowledgement, calling upon him to
attend the enquiry, he did not turn up and therefore, the Enquiry Officer had to conduct the enquiry in the absence of the Petitioner. It is seen that
even after completion of the oral enquiry, the Petitioner did not choose to submit any written statement of defense, therefore, minute was drawn by
the Enquiry Officer holding both the counts of charge as proved. It is also seen that a copy of the Minute/Enquiry Report was sent to the Petitioner
on 18.10.2004 with a direction to submit his further representation, if any, within 7 days, whereupon, the Petitioner submitted his further
representation on 26.10.2004. Thereafter, final order was passed by the 4th Respondent awarding the punishment of compulsory retirement with
effect from 27.10.2004.
Assessing the case of the Petitioner in the light of the sequence of events and the materials available on record, firstly, it is noticed that
immediately after placing him under suspension by order dated 02.09.2004, the Petitioner deposited the sum of Rs. 43,152/-only during
September, 2004, as evidenced by the cash memos. Secondly, the Petitioner did not place any material whatsoever to substantiate his version that
he complained to any superior officer attributing mala fide or bias attitude as against the Enquiry Officer. Thirdly, the contention made by the
Petitioner that he was not even issued with a copy of theenquiry report is highly baseless because only after receipt of such report sent on
18.10.2004 with a direction to submit further representation if any on his part, he submitted the further representation on 26.10.2004. Only
thereafter, the Disciplinary Authority, disagreeing with such representation given by the Petitioner, proceeded to accept the report of the Enquiry
Officer and passed final orders awarding the punishment of compulsory retirement with effect from 27.10.2004. It must also be pointed out that
the order of punishment was also reviewed and accepted by the Deputy Inspector General of Police, Armed Reserve, Chennai. Therefore, the
allegation made by the Petitioner that the Enquiry Officer as well as the Disciplinary Authority acted in gross violation to the procedure prescribed
under the Rules appears to be baseless and vague.
It is also pertinent to mention here one another vital aspect that the Petitioner placed his case before this Court as if he was governed by the
Rules whereas what is under challenge is the impugned order passed under the provisions of the Police Rules. Having been dealt with under Rule 3
(b) of the Police Rules for having temporarily misappropriated a sum of Rs. 43,152/-and the procedure laid down there under is clearly shown to
have been adhered to, I do not understand as to on what basis and for what purpose the Petitioner assumed application of the wrong provisions
under Rule 17(b) of the Tamil Nadir Civil Services (DAY) Rules. However, he has been dealth with under Rule 3(b) of the Police Rules.
In fact, the Petitioner is not even entitled to challenge the quantum of punishment alleging that the punishment of compulsory retirement awarded
against him is highly excessive, exorbitant and unwarranted. Because, in the written submission dated 23.09.2004 he has stated that he did not
desire to serve with a stain in the dignified police force and also made it clear that he would not participate in the course of the enquiry
proceedings. When the Petitioner has deliberately failed to appear in the enquiry proceedings to disprove the allegation, he has no justification to
find fault with the order of punishment passed against him. At the risk of repetition, it is pointed out that the Petitioner did not even avail the
opportunity given to him by appearing before the Enquiry Officer to prove his innocence by producing materials and examining/cross-examining the
witnesses. Since the Petitioner himself did not take care and efforts to disprove the allegations made against him so as to substantiate that
repayment was in fact made during April, 2004 itself without unjustly retaining the sum for temporary misappropriation, I am of the considered
opinion that the Petitioner cannot make out a case by contending that he was not given opportunities to put forth his defense.
In the light of the foregoing discussion, I do not find any reason much less valid reason to interfere with the impugned order under challenge.
Consequently, the Writ Petition fails and it is dismissed. No costs.