1. This petition is filed by a Sub-Inspector of Police, whose probation was terminated, for the issue of a writ of certiorari after calling for the records connected with the order of the Deputy Inspector-General of Police dated 11-1-1963 which was confirmed on appeal by the Inspector-General of Police on 30-9-1963 and by the Government of Madras on 4-9-1965.
2. The petitioner was enlisted as a constable in 1935 and was promoted as Sub-Inspector in 1949.
3. He was reverted in 1952 for want of vacancies. Again on 8-10-1958 he was promoted to officiate as Sub-Inspector and put on probation for two years. On 30-5-1960 a charge memo was served on him by the Superintendent of Police, Ramanathapuram, and ultimately (the probation of) the petitioner was extended by one year on 5-9-1960 by way of punishment. Again on 25-4-1962 a charge memo was served on the petitioner which was received by him on 20-5-1962. Six charges were framed against him. The first charge related to unsatisfactory work while in charge of Neikuppai Station during the period from 31-3-1959 to 16-11-1959. Under the first charge there were four specific instances of unsatisfactory work in Neikuppai Station. The second charge related to unsatisfactory work while in charge of Manamadurai Station during the period from 9-2-1961 to 29-6-1961. In that he delayed the submission of IVth quarterly Inspection Notes of Manamadurai Station from 10-2-1961 to 31-5-1961.
The third charge related to reprehensible conduct in giving evidence in Sub-Magistrate's Court, Srivilliputtur on 7-12 1961 contrary to facts recorded in the case diary in Rajapalayam Taluk Station Cr. No. 145 of 1961. The fourth charge related to (delay in) submission of case diaries and not submitting case diaries after F. I. Rs. in Kalayarkoil station in several cases and the fifth charge related to non-submission of C-1 currents in various cases in spite of reminders from the Inspector of Police, Sivaganga. The 6th charge was accumulation of four punishments during the period of probation as Sub-Inspector. The enquiry officer found that all the charges had been proved against the petitioner. The Deputy Inspector-General of Police accepted the findings of the enquiry officer and terminated the probation of the petitioner, On appeal the Inspector-General of Police agreed with the Deputy-Inspector-General of Police and dismissed the appeal. A further appeal to the Government also failed and hence this writ petition.
4. So far as the first charge relating to unsatisfactory work while in charge of Neikuppai Station during the period 31-3-1959 to 16-11-1959 is concerned, it is admitted that the charges were the subject-matter of a previous enquiry which resulted in the extension of the probation of the petitioner by six months. The petitioner having been punished once before charge No. 1 ought not to have been again made the subject-matter of a fresh enquiry. The plea of the petitioner regarding this charge will have to be accepted.
5. Regarding Charge No. 2, that is delay in submission of the IVth Quarterly Inspection notes of Manamadurai Station from 10-2-1951 to 31-5-1,961, the enquiry officer found that the reference was pending when the delinquent took charge and it was his duty to clear oft this current file or to have reported if it was not handed over to him on his taking charge. In the absence of any report about this current file by the delinquent the officer inferred that the current file was at the station and as its submission was delayed by the delinquent for such a long time it was not excusable. The officer also found that the delinquent is not able to establish that this reference was among the papers taken away by his predecessor. In the result he declined to accept the explanation for the delay.
6. The learned Counsel for the petitioner submitted that the reasoning of the enquiry officer that the delinquent has not established that the reference was among the papers taken away by the predecessor is not proper as the burden is on the prosecution to prove that the paper had been left and that the paper was available with the petitioner. The Enquiry Officer accepted the evidence of P. W. 4 that the reference was received at the Manamadurai Station as recorded in the station registers and was pending when the delinquent took charge and he ought to have attended to the clearing of the current or should have reported if it was not handed over to him on his taking charge. I am unable to say that the reasoning of the Enquiry Officer is unsupportable. Regarding Charge No. III, that is, reprehensible conduct in giving evidence in Sub-Magistrate's Court, Srivilliputhur on 7-12-1961 contrary to facts recorded in the case diary it is common ground that the evidence which the petitioner gave in Court was not in conformity with the case diary records.
The statement of the petitioner that he recorded a statement from the first accused and recovered M. O. 1, recorded the confessional statement of accused No. 2 and in pursuance thereof seized M. O, 2 and then recorded the confessional statement of accused No. 3 and seized M, O. 3 is contrary to the record in the case diary which showed that confessional statements of the accused and mahazars recorded that M. O. 1 was recovered at 8-30 a. m., M. O. 2 at 7-30 a.m. and M. O. 3 at 7-45 a. m. It is also entered in the case diary that the petitioner arrested accused Nos. 1 to 3 at Sankaralingapuram at 5-00 a.m. on 26-9-1961 and examined them and recorded their confessional statements, from accused No. 1 at 5-15 a. m., from accused No. 2 from 6 to 6-30 a. m. and from accused No. 3 from 6-45 to 7-15 a.m. There is a clear variation between the evidence he gave in Court and the case diary records. His explanation that the evidence of the petitioner was misunderstood by the Sub-Magistrate was rightly rejected by the Enquiry Officer.
7. The fourth charge relates to delay in submission of case diaries and not submitting case diaries after F. I. Rs. in Kalayarkoil crime numbers. The finding is that the petitioner had delayed the submission of case diaries and his plea that the delay was due to his work in Courts and investigation was not accepted. Charge No. 5 relates to non-submission of currents in spite of reminders from the Inspector of Police, Sivaganga. On this charge the Enquiry Officer found as a fact that no reminders had been sent of the currents by the Inspector but there was delay in submission of the records. Though the act of non-submission is not aggravated, as it has not been proved to have continued in spite of reminders, the charge that there was delay in submission is made out.
8. Regarding the 6th Charge, accumulation of punishments during the period of probation the fact that the petitioner received the four punishments is not disputed. But it is contended that the Enquiring Authority was prejudiced by including this charge relating to past conduct and as such the entire enquiry is vitiated. In this connection the learned Counsel, Mr. Ramaswami, referred to the Subordinate Services Rule No. 27, which provides for the termination of the probation of a person. Explanation III to Rule 27 (c) is the relevant rule. It provides that the probation of a member of a service can be terminated for general unsatisfactory work or incapacity without the need for enquiry into the specific charge. In cases where the competent authority proposes to terminate the probation of a member for specific charges in addition to or distinct from general inefficiency or incapacity he is required to frame specific charges and follow the detailed procedure laid down in Rule 17 (b) of the Madras Civil Services (Classification, Control and Appeal) Rules,
In this case, charges were framed and the matter proceeded as if for inflicting a punishment, not for termination of the probation on grounds of general unsatisfactory work or incapacity. Charge No. 3 is that the petitioner was guilty of reprehensible conduct in giving evidence contrary to the facts recorded in the case diary. This charge will not be one of unsatisfactory work or incapacity. That the proceedings were by way of punishment is made clear by the show cause notice given by the Deputy-Inspector-General of Police dated 11-11-1962 in which he stated that 'if no further representation was received within the stipulated time it will be considered that you have no representations to make and (orders on) the punishment roll will be disposed of on its own merits'. The Deputy-Inspector-General in his order dated 11-1-1963 has stated that it was a punishment roll for cessation of probation for unsatisfactory work and reprehensible conduct.
Thus the termination does not appear to be for general unsatisfactory work or incapacity. On the other hand, the Department proceeded to frame specific charges in addition to and distinct from general inefficiency and incapacity. In an enquiry held for the purpose of terminating the probation, I do not think there can be any objection to framing of a specific charge relating to the punishments accumulated by the petitioner. It may be that in a case of grave misdemeanour, where the dismissal of the petitioner is in contemplation, the petitioner may be prejudiced by his past conduct being enquired into at that stage. But the fact of accumulation of punishment during the period of probation is a material circumstance to be taken into account in deciding whether the probation should be terminated or not. I do not think there can be any objection to this course as admittedly the petitioner was given ample opportunity to rebut the charge.
9. Mr. Ramaswami, the learned Counsel for the petitioner, submitted that in any event as Charge No. 1 had failed and regarding Charge No. V the charge as framed had not been established, the punishment cannot be sustained. In support of this contention the learned Counsel relied on a decision of the Supreme Court in Ram Manohar v. State of Bihar, : 1966CriLJ608 . The Supreme Court was dealing with the case of detention. Following its earlier decision in Shibban Lal Saksena v. State of Uttar Pradesh, : 1SCR418 the Supreme Court held that as the detention order mentioned two grounds, one of which is in terms of the rule while the other is not, it could not be said to what extent the valid and invalid grounds operated in the mind of the authority concerned and contributed to the creation of his subjective satisfaction which formed the basis of the order of detention and therefore the order will have to be set aside.
10. In State of Orissa v. Bidyabhushan, : (1963)ILLJ239SC the Supreme Court was dealing with the validity of the order of the High Court, directing the Government to reconsider the order of dismissal, on the ground that out of the charges framed certain charges were held to be unsustainable. There were two charges against the officer in that case. The first charge related to five specific heads charging the officer with having received illegal gratification while the second related to possession of means disproportionate to his income as Sub-Registrar. The High Court held that there was evidence to support the findings on heads (c) and (d) of charge No. 1 and the findings on charge No. 2. The High Court was of the view that as the findings on two of the heads under charge No. 1 could not be sustained the Government should be directed to decide whether on the basis of those charges proved punishment of dismissal should be maintained or else where a lesser punishment would suffice.
The Supreme Court held that when the findings of the Tribunal relating to two out of five heads of the first charge and the second charge were found not liable to be interfered with by the High Court and those findings establish that the respondent was prima facie guilty of grave delinquency the High Court had no power to direct the Government of Orissa to reconsider the order of dismissal. The Supreme Court proceeded to observe that in the case in which an order of dismissal of a public servant was impugned the Court is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanour established. In conclusion the Supreme Court held that if the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority hi dismissing the public servant. Thus this decision clearly lays down that the Court cannot interfere in the case of a sentence, provided the sentence is Justified by the rules and if the order can be supported on any finding for which the punishment can lawfully be imposed.
11. The decision is subsequently referred to by the Supreme Court in State of Maharashtra v. B.K. Takkamore, : 2SCR583 and the position of law is stated thus at page 1339:--
'An administrative or quasi-judicial order based on several grounds, all taken together, cannot be sustained it be found that some of the grounds are nonexistent or irrelevant and there is nothing to show that the authority would have passed the order on the basis of the other relevant and existing grounds. On the other hand, an order based on several grounds some of which are found to be non-existent or irrelevant, can be sustained if the Court is satisfied that the authority would have passed the order on the basis of the other relevant and existing grounds, and the exclusion of the irrelevant or non-existent grounds could not have affected the ultimate opinion or decision'
Therefore if the Court is satisfied, that the authority would have passed the order on the basis of the other relevant and existing grounds and the exclusion of irrelevant and non-existent grounds could not have affected the ultimate opinion or decision of the authority, it will not interfere.
12. Mr, Ramaswami, the learned Counsel for the petitioner, submitted that the decision of the Supreme Court would Indicate that the order of the administrative or quasi-judicial tribunal cannot be sustained if there is nothing on the record or in the order of the authority which would indicate that on the relevant and existing grounds it would have sustained the punishment in support of this contention the learned Counsel referred to the latter portion of the judgment in which the Supreme Court referred to the wording of the show cause notice in which it was stated that several grounds jointly and severally appeared serious enough to warrant action under Section 408 (1) of the Act which would imply that the administrative tribunal was willing to base the punishment on anv of the grounds. I am unable to accept this contention for it is made clear by the Supreme Court that it is for the Court to be satisfied whether the authority would have passed the order on the basis of relevant and existing grounds, excluding the irrelevant and non-existing grounds. The question as to whether the authority has specifically stated that it would have sustained the punishment on that ground or not is not material. This is made clear in the concluding portion of the judgment where it is stated:--
'We are reasonably certain that the State Government would have passed the order on the basis of the second ground alone.'
The question therefore to be decided in cases where certain charges are found to be unsustainable is whether the Court would be satisfied that on the charges on the relevant and existing grounds the administrative tribunal would have passed the sentence that had been imposed.
13. Mr. Ramaswami, the learned Counsel for the petitioner, submitted that a Bench of this Court in Royal Printing Works v. Industrial Tribunal, (1963) 2 Lab LJ 60 has held that when the punishment meted out by the management is a consolidated one on the ground that all the charges have been proved, if two of the charges could not be validly sustained against the worker, it would follow that the punishment cannot be sustained. This decision was rendered before the decision of the Supreme Court in State of Orissa v. Bidyabhushan, : (1963)ILLJ239SC . But the learned Counsel pointed out that a latter Bench of this Court in Bank of Madura v. B. M. Employees' Union, : (1965)IILLJ44Mad declined to accept the contention that the decision in (1963) 2 Lab LJ 60 (Mad) held anything contrary to : (1963)ILLJ239SC . The Bench based its decision on the ground that the worker was a cashier when he was dismissed from service and the cashier who belonged to D category cannot be dismissed by the Secretary under Regulations 25 to 27. The attempt of the learned Counsel to show that the dismissal' order made by the Secretary had the approval of the management and therefore the dismissal by the Secretary was valid was not accepted by the Court.
As the decision was based on this point the other observations are in the nature of obiter dicta. That apart, I find factually that the observation of the Court that there is nothing contrary to the Supreme Court case in : (1963)ILLJ239SC in the decision of the Madras High Court in (1963) 2 Lab LJ 60 is not correct. As pointed out earlier, the Supreme Court has held that in cases where the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to interfere, whereas the Bench in (1963) 2 Lab LJ 60 has proceeded on the basis that when once it is seen that two of the three charges could not be validly sustained against the worker, it would follow that the punishment cannot be sustained. The contention of the learned Counsel based on the decisions in (1963) 2 Lab LJ 60 and : (1965)IILLJ44Mad cannot therefore be accepted.
14. The question for consideration is whether on the charges that had been made out, the Court is satisfied that the authority would have passed the order on the basis of relevant and existing grounds to the exclusion of the grounds found to be not sustainable. The grounds that are made out are, the delay in submission of the fourth quarterly inspection notes, reprehensible conduct in giving- evidence in the Sub-Magistrate's Court contrary to facts recorded in the case diary, delay in submission of case diaries, delay in submission of currents and accumulation of four punishments during the period of probation as Sub-Inspector. Even accepting the contention of the learned Counsel for the petitioner, that charge No. VI should not be taken into account in imposing the punishment on the other charges, I am satisfied that the authority would have terminated the probation. Charge No. III by itself is serious and the punishment imposed cannot be said to be excessive.
15. I am unable to say that the proceedings of the authorities are vitiated by any error in procedure. The order terminating the probation is therefore correct and this writ petition is dismissed. There will be no order as to costs.