DATED : 04-07-2008

CORAM

THE HONOURABLE MR. JUSTICE P.K. MISRA

AND

THE HONOURABLE MR. JUSTICE K. CHANDRU

WRIT PETITION NO.20797 OF 2003

G. Selvaraj

S/o. Govinda Raj .. Petitioner

Vs.

1. Additional Director General of Police &

Commissioner of Police,

City Police Office,

Egmore, Chennai 600 008.

2. Director General of Police,

Chennai 600 004.

3. The Registrar,

Tamil Nadu Administrative Tribunal,

Chennai. .. Respondents

Petition filed under Article 226 of the Constitution of India for the issuance of writ of Certiorarified Mandamus to call for the records of the respondents, especially the third respondent relating to order made in O.A.No.1293 of 2002 dated 27.6.2002 and quash the same as null and void, illegal and invalid and consequently directing the respondents 1 and 2 to reinstate the petitioner in service with all service and monetary benefits besides regulating his suspension period as duty period upholding his entitlement for backwages upto date of reinstatement. For Petitioner : Mr.A. Amalraj

For Respondents 1& 2 : Mr.S. Rajasekar

Government Advocate

- - -

J U D G M E N T

P.K. MISRA, J

The facts giving rise to the present writ petition are as follows :-

The petitioner entered service under the Police Department as a Grade-II Police Constable in 1984 and, in course of time, he was promoted as Grade-I Police Constable. While he was working in such capacity in the Central Crime Branch, Chennai, a departmental proceeding was initiated against him. The gravamen of the charge was to the effect that the delinquent impersonating himself as investigating officer for immigration clearance, had managed to obtain Rs.500/- from the family of the complainant. The enquiry officer found the petitioner guilty of such charge and the Commissioner of Police, namely, Respondent No.1, coming to the conclusion that the petitioner was liable, after giving him further opportunity of showing cause, passed an order of removal from service vide order dated 12.4.2000. In the appeal preferred by the petitioner, the Director General of Police, namely, Respondent No.2, while upholding the conclusion relating to delinquency, modified the punishment to one of compulsory retirement as per order dated 7.3.2001. The petitioner challenged the said order of punishment by filing O.A.No.1293 of 2002, which having been dismissed as per order dated 27.6.2002, the present writ petition has been filed.

2. The main contention raised by the counsel for the petitioner is to the effect that the finding of the delinquency is based on no evidence on record and the Department having not examined the direct witnesses, should not have imposed the punishment on the petitioner. It has been further submitted that in view of the categorical statement of the complainant, who was examined as P.W.1 during the departmental proceedings, to the effect that the delinquent person was not the person who had come to the house of the complainant on 2.10.1999, 3.10.1999 and 5.10.1999, the ultimate conclusion regarding culpability of the petitioner has to be discarded as a perverse finding.

3. Learned counsel appearing for the State, on the other hand, has submitted that the enquiry officer on reference to the relevant materials had come to a conclusion regarding delinquency of the petitioner and such conclusion having been subsequently accepted by the disciplinary authority, appellate authority as well as the Tribunal, the High Court, while exercising jurisdiction under Article 226 of the Constitution, is not expected to go behind the factual conclusion of such authorities.

4. In AIR 1964 SC 364 (UNION OF INDIA v. H.C. GOEL), a Constitutional Bench of the Supreme Court had observed :-

23. That takes us to the merits of the respondents contention that the conclusion of the appellant that the third charge framed against the respondent had been proved, is based on no evidence. The learned Attorney-General has stressed before us that in dealing with this question, we ought to bear in mind the fact that the appellant is acting with the determination to root out corruption, and so, if it is shown that the view taken by the appellant is a reasonably possible view this Court should not sit in appeal over that decision and seek to decide whether this Court would have taken the same view or not. This contention is no doubt absolutely sound. The only test which we can legitimately apply in dealing with this part of the respondents case is, is there any evidence on which a finding can be made against the respondent that Charge No.3 was proved against him? In exercising its jurisdiction under Article 226 on such a plea, the High Court cannot consider the question about the sufficiency or adequacy of evidence in support of a particular conclusion. That is a matter which is within the competence of the authority which deals with the question; but the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence illegally the impugned conclusion follows or not. Applying this test, we are inclined to hold that the respondents grievance in well founded, because, in our opinion, the finding which is implicit is the appellants order dismissing the respondent that charge number 3 is proved against him is based on no evidence.

4. In the present case, the culpability of the petitioner is sought to be established through the statement of the complainant - P.W.1., statement of P.W.2 - Inspector of Police, who had submitted a contemporaneous confidential report, on the basis of which the petitioner was placed under suspension and subsequently departmental proceedings was initiated, and the documents such as the complaint of P.W.1 - Ex.1, confidential report Ex.2 and Memo 461/FOC/Misc/99 dated 1.10.99 under which the delinquent had been assigned the work for the relevant year.

5. The statement of P.W.1 indicates that a person claiming himself to be an official of the Immigration Department had come to the house of the complainant on three dates and had taken Rs.500/- on the pretext of facilitating immigration clearance. However, in the statement, such P.W.1 has not directly implicated the delinquent as the person who had taken the money and, on the other hand, stated that such delinquent was not the person who had visited the house of the complainant on the three dates. However, in the complaint, which was recorded as Ex.1, it appears that the complainant had stated that the delinquent was the person who had taken such money. Whatever may be the reason for which P.W.1 appears to have subsequently rescinded from the earlier statement, his statement at least clearly proves that there was an incident wherein a person claiming himself to be the representative of the Immigration Department had visited the house of the complainant and had received Rs.500/-. Thus, even though an incident is said to have been proved, the vital question is whether the petitioner was the delinquent or it was somebody else. As per the conclusion of the disciplinary authority, the appellate authority as well as of the Tribunal, the missing link is provided through other materials on record such as the confidential report of P.W.2 and the statement of P.W.2 during the enquiry.

6. There is no dispute that P.W.1., on being suspicious, had contacted the police and P.W.2 was the Inspector. It is also the unchallenged evidence that P.W.2 had deputed one Balu, Head Constable, to the house of P.W.1 and the culprit was taken by the Head Constable to the Police Station. This is apparent from the unchallenged statement of P.W.1 to the effect "I have informed the same to the Thirumangalam police station and the police constables came and took him to custody." P.W.2 has stated :- "On 5.10.99 at about 14.45 hours when Raj came to his house, he contracted Thirumangalam Police Station and informed the matter and based on the complaint one Balu Head Constable from Thirumangalam Police Station came to his house and taken this Raj to custody as stated in the complaint dated 5.10.99. The above complaint was submitted as Ex.1 on behalf of Government. On my return to the Thirumangalam Police Station the above complaint was brought to the notice and I have made a detailed enquiry with Thiru Mohan George. He has deposed that the facts contained in the complaint are true and the incidents mentioned therein have been taken place. Actually the said Mohan George has also abused that the person who has visited his house on 2.10.99 for enquiry and also received the documents from his daughter Jacob Sanjeeth Susan and also Rs.500/- from her on 3.10.99 at 4 P.M. in the same person as now shown to him at the Police Station by me. When I enquired Raju he has stated that his name is Selvaraj and his age is 40 and his father's name is Govindaraj and is residing at No.120, Cochin House, Police Quarters, Thousand Lights and is working at Central Crime Branch, Egmore as Senior Grade Police with No.8531. He has handed over the Memo No.461/FOC/Misc/99 dated 1.10.99 which was with him. I am submitting this as Ex.3 filed on behalf of Government. Thiru Selvaraj, Senior Police No.8531 has accepted the facts mentioned in the complaint given by Dr. Mohan George and accordingly I have prepared confidential report and submitted the complaint of Mohan George, the Memo No.461/FOC/Misc/99 of the City Police Office along with my confidential report to the Assistant Commissioner Thirumangalam Circle for further action. The confidential report is submitted as Ex.2 on behalf of Government to-day."

7. The above statement of P.W.2 has been substantially corroborated by the contents of the contemporaneous documents such as the complaint of P.W.1 marked as Ex.1, the confidential report of P.W.2 marked as Ex.2. Relying upon the aforesaid statement of P.W.2 as corroborated by the complaint Ex.1 and the confidential report Ex.2, which are more or less contemporaneous documents, the disciplinary authority has found the culpability of the petitioner. Such finding has been confirmed not only by the appellate authority but also by the Tribunal. As a matter of fact, the Tribunal had undertaken a detailed discussion of the materials on record, while upholding the conclusion of the enquiry officer, the disciplinary authority as well as the appellate authority.

8. It is of course true that in the departmental proceedings, the Head Constable, who had brought the delinquent to the police station, and the other members of the family of the complainant, had not been examined. However, merely because of non-examination of some other witnesses, who could have thrown light on the subject, we do not think it would be appropriate on our part to reappreciate the entire evidence like an appellate authority. It is to be borne in mind that the standard of proof required in a departmental proceedings is very much different from the standard of proof in a criminal case. May be, if we would have been dealing with a criminal appeal, the question of reappreciating the evidence and drawing adverse inference for non-examination of some of the witnesses could have cropped up. In the purported exercise of jurisdiction under Article 226 of the Constitution, that too when the matter has already been dealt with by the Administrative Tribunal, which was exercising similar power of the writ of certiorari, while considering the conclusion of the disciplinary authority and the appellate authority, we do not think it would be appropriate on our part to come to any different conclusion.

9. In the peculiar facts and circumstances of the case, which have been highlighted to a great extent by the Tribunal and even to some extent by ourselves, we do not think there is any scope to interfere with the findings rendered by the disciplinary authority and confirmed by the Tribunal.

10. In AIR 1964 SC 477 (SYED YAKOOB v. K.S. RADHAKRISHNAN & OTHERS), the Supreme Court, while considering the scope of writ of certiorari, had observed :-

"7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmad Ishaque Nagandra Nath Bora v. Commissioner of Hills Division and Appeals Assam and Kaushalya Devi v. Bachittar Singh."

11. As a matter of fact, similar sentiments had been expressed by the Supreme Court in the several subsequent decisions. In AIR 1989 SC 997 (STATE OF UTTAR PRADESH AND OTHERS v. MAHARAJA DHARMANDER PRASAD SINGH & OTHERS), it has been observed by the Supreme Court as follows :-

"28. ... However, judicial review under Article 226 cannot be converted into an appeal. Judicial review is directed, not against the decision, but is confined to the examination of the decision-making process. ... When the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account of relevant factors or is so manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision, the judicial review of the decision-making process includes examination, as a matter of law, of the relevance of the factors. ... "

12. In (2008) 2 SCC 417 (SARABJIT RICK SINGH v. UNION OF INDIA) the Supreme Court has observed :

"49. The superior courts while entertaining a writ petition exercise a limited jurisdiction of judicial review, inter alia, when constitutional/statutory protection is denied to a person. But when it is required to issue a writ of certiorari, the order under challenge should not undergo scrutiny of an appellate court. Jurisdiction of the superior court in this behalf being limited inter alia to the question of jurisdiction, it was obligatory on the part of the petitioner to show that a jurisdictional error has been committed by the court while exercising the statutory powers. Contention in regard to prejudice in such a situation is required to be considered."

13. The scope for interference in the matters relating to judicial review of disciplinary action, the power of the High Court can be likened to that of a pyramid. The enquiry officer and the disciplinary authority can be considered as the basal portion having full jurisdiction to appreciate and reappreciate the materials on record and similarly the departmental authority / and revisional authority can be said to have similar power of repappreciation of evidence. However, when such matters are challenged before the Administrative Tribunal constituted under Article 323-A of the Constitution, the scope of interference becomes restricted and such Administrative Tribunal is not expected to reappreciate the evidence to come to a different conclusion. What holds true of the Administrative Tribunal is even more true in respect of the power of the High Court while the High Court is dealing with a further writ of certiorari under Article 226 of the Constitution directed against such decisions of the Administrative Tribunals.

14. Since, in the present case, it cannot be said that there was no evidence in support of the conclusion arrived at by the disciplinary authority and ultimately upheld by the Tribunal, we do not think there is any scope to interfere with the conclusion regarding the culpability of the petitioner.

15. Learned counsel for the petitioner has also contended that as a matter of fact the disciplinary authority was the Deputy Commissioner of Police and not the Commissioner of Police and since the punishment was imposed by the Commissioner of Police as the original authority, the petitioner was deprived the normal remedy of filing appeal before the Commissioner and thereafter filing further appeal before the Director General of Police.

16. However attractive such contention may appear, we do not think such submission can be countenanced. Even assuming that the disciplinary authority was the Deputy Commissioner of Police and as such the Commissioner of Police was the first appellate authority and the Director General of Police was the subsequent appellate authority, we do not think that the petitioner has suffered any prejudice on that score. Since the appeal has been considered by the Director General of Police, we do not think any grievance can be made.

17. Learned counsel for the petitioner has also submitted that the appellate authority, namely, the Director General of Police, has not given any reason in support of his conclusion.

18. There is no doubt that an appellate authority, while dealing with such appeal in a disciplinary proceedings, is expected to indicate his reasons for the conclusions. However, in the facts of this case, it cannot be said that the appellate authority has not indicated the reasons. We have carefully gone through such order and we find that not only the appellate authority has taken note of the basic facts and the basic contentions of the delinquent, as a matter of fact, the appellate authority has also modified the punishment from one of removal from service into compulsory retirement. It is obvious that the appellate authority had clearly applied his mind and, while confirming the conclusion relating to culpability, has modified the punishment. When an appellate authority concurs with the disciplinary authority, general affirmance of the reasons would be sufficient and an appellate authority in a departmental proceedings is not expected to write a detailed judgment like an appellate court dealing with an appeal under the Code of Civil Procedure or the Code of Criminal Procedure. As already indicated, the appellate authority has taken note of the vital contentions and has ultimately affirmed the finding relating to culpability, while interfering with the punishment. Therefore, such submission is not acceptable.

19. A contention was raised that the confidential report made by P.W.2., which was behind the back of the petitioner, could not have been relied upon by the departmental authorities nor by the Tribunal.

20. We find that the confidential report was proved as a document Ex.2 in the departmental proceedings and the person who made the report was also examined as P.W.2 and opportunity of cross-examination was given to the petitioner. Under these circumstances, we are unable to accept the contention that such report could not have been utilised even for the purpose of corroborating the other materials on record. In this connection, the decision of the Supreme Court reported in (1977) 2 SCC 491 (STATE OF HARYANA AND ANOTHER v. RATTAN SINGH) may be adverted to.

21. For the aforesaid reasons, we do not find any merit in this writ petition, which is accordingly dismissed. No costs.

dpk

To

1. Additional Director General of Police &

Commissioner of Police,

City Police Office,

Egmore, Chennai 600 008.

2. Director General of Police,

Chennai 600 004