SECRETARY TO GOVERNMENT Vs. A C J BRITTO

JUDGEMENT

(1.) The respondent was appointed as a Sub-Inspector of Police in 1962. While posted at Madurai, a departmental action was initiated against him under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules and on being found guilty he was dismissed from service by an order dated 3-11-79. That order was set aside in appeal by the Inspector General of Police on the ground that in conducting the inquiry there was violation of the prescribed procedure. The enquiry officer was directed to proceed further with the inquiry from the stage it was found to be bad.

(2.) As the order of dismissal was set aside the respondent was reinstated in service. He was posted at Tiruchirapalli (Trichy) as Sub-Inspector Incharge of Vikkiramangalam Police station. He joined the duty at that Police Station on 12-11-80 and proceeded on casual leave from 13-1-80 to 19-11-80. Instead of resuming duty on 20-11-80 he applied for medical leave and thereafter went on extending it continuously till he was placed under suspension on 14-6-81. As he was remaining continuously absent on the ground of health, the Superintendent of Police, Tiruchirapalli by his memo dated 22-4-81, directed him to appear before the District Medical Officer for being presented before the Medical Committee for examination as regards his fitness to return to duty. He did not appear before the District Medical Officer on that day. The Superintendent of Police, therefore, again by a memo dated 4-6-81, directed him to appear before the District Medical Officer for the said purpose. That memo was served upon the respondent on 4-6-81, itself. The District Medical Officer, Trichy by a letter dated 4-6-81, requested the Superintendent of Police to direct the respondent to appear before the Medical Board at Government Headquarters Hospital, Trichy on 9-681, at 10 hours for medical examination. A communication to that effect was also served upon the respondent. As the respondent did not appear for medical examination on 9-6-81, the District Medical Officer by his letter dated 10-6-81, informed the Superintendent of Police about non-compliance of the said directions. His non-appearance and non-compliance with the order of the Deputy Superintendent of Police were reported to Inspector General of Police. Considering it as an act of misconduct the respondent was suspended on 14-6-81 and a departmental proceeding by issuing a charge-memo was initiated against him on 27-7-81. The said charge-memo could not be served upon the respondent earlier than 2-11-81, as he was not available. The enquiry officer concluded the inquiry and found him guilty and on the basis thereof an order of dismissal was passed against him by the disciplinary authority on 24-5-84.

(3.) He challenged that order of dismissal by filing a writ petition in the High Court of Madras. That petition was subsequently transferred to the Tamil Nadu Administrative Tribunal and was numbered as T.A. No. 606 of 1991. The respondent challenged his dismissal on the ground that the inquiry and the dismissal order were vitiated as the disciplinary proceedings were initiated against him by an officer subordinate in rank to the disciplinary authority. It was also challenged on the ground that he not appearing before the Medical Board the respondent cannot be said to have disobeyed the order of the superior authority and in any case, that did not amount to a misconduct of grave nature. It was also challenged on the ground that the enquiry officer, by denying him the documents which he wanted, deprived him of a reasonable opportunity to defend himself. The Tribunal, relying upon its earlier judgments, held that the disciplinary authority alone can initiate a disciplinary proceeding against a Government servant under Rule 3(b) of the said Rules and as the charge-memo in this case was issued by an officer subordinate to the disciplinary authority the entire disciplinary proceeding stood vitiated. The Tribunal also held that the applicant wanted a railway warrant to enable him to appear before the Medical Board at Trichy and as the same was not given to him he cannot be said to have disobeyed the order of a superior authority. For that reason and also on the ground of absence of any provision under which non-appearance before a Medical Board can be considered as an act of misconduct the Tribunal held that there was no justification for initiating a disciplinary proceeding against him. The Tribunal also held that the enquiry officer by denying his request to have the documents which he had asked for and for perusal of a file had deprived him of a reasonable opportunity to defend himself. The Tribunal also held that as the applicant was not given a copy of the inquiry report and as the order was passed without giving him a further notice his dismissal has to be regarded as bad. The Tribunal, therefore, quashed and set aside the order of dismissal.