Andhra HC (Pre-Telangana)
K. Sitaram vs Vice-Chancellor, S.V. University, ... on 28 September, 1999
Equivalent citations: 1999(6)ALD596, 1999(6)ALT474
Author: Goda Raghuram
Bench: Goda Raghuram
ORDER
1. Both these writ petitions have been instituted by a former Senior Assistant of S.V. University, Tirupati. They could conveniently be heard together and having been so heard are disposed of by this common judgment.
2. Heard Sri P. V. Sanjay kumar and Sri B. Adinarayana Rao, learned Counsel for the petitioner and the respondents, respectively.
3. In WP No.7684 of 1994 the petitioner challenges his continuance under suspension since 20-6-1991, despite the conclusion of the disciplinary enquiry and submission of the enquiry report by the Standing Board of Enquiry for short 'the Board' on 5-7-1993.
4. Subsequent to the institution of the above writ petition, by the proceedings Memo No.E1/1/94, dated 5-9-1994 the petitioner was communicated the resolution of the Board of Management imposing the penalty of reduction in rank permanently from the post of Sr. Assistant to Jr. Assistant. Assailing the said proceedings WP No. 16903 Of 1994 is instituted seeking a consequential relief of a direction to the respondents to dispose of the case afresh after considering the material evidence and relevant circumstances and to restore the petitioner to the post of Sr. Assistant.
5. On an allegation that the petitioner abused his official position and facilitated one U. Venkataramana, a private candidate who appeared for M.A.(English) Previous examination in the replacement of the candidate's answer scripts with fresh answer scripts after getting Code Nos., duly affixed thereon and enabled the substitute answer scripts to be sent for revaluation and thereby committed misconduct, disciplinary proceedings were initiated. The petitioner was placed on suspension on 20-6-1991. A charge-sheet was issued on 30-3-1992 to which the petitioner submitted his reply on 14-4-1992. According to the petitioner a 3-Man Enquiry Commission was instituted to enquire into the allegations against C. Radhakrishna Addl. Controller of Examinations, V.Y.D. Raman, Lecturer, Chiranjeevi, Lecturer and T. Narayana Chetti, Supdt., of the University and the petilioner. The respondents however contend that this was not a disciplinary enquiry committee, but a mere fact finding committee.
6. While so, a charge-sheet dated 20-4-1993 was issued by the Board to the petitioner. The record discloses that separate charges were framed against the petitioner, T.N. Chetty, Supdt., and Y. Dayananda Gupta, Controller of Examinations. The charges are to the effect that all the three colluded some time between June, 1990 and March, 1991, abused their official positions and saw to it that the Code Nos., relating to all the four answer scripts of U. Venkataramana, a private candidate appearing for M.A.(English) Previous examination were made available to him and thus facilitated the replacement of the four original answer scripts with fresh ones after getting the Code Nos., duly affixed thereon, thus enabling the substituted answer scripts to be sent for revaluation, resulting the candidate securing inflated marks in such revaluation and that thereby they committed misconduct. The petitioner submitted his rely to the charge-sheet on 1-5-1993 and after an enquiry the Board submitted its report on 5-7-1993. By a resolution dated 7-8-1993 the Board of Management accepted the enquiry report and issued a show-cause notice dated 16-12-1993. The petitioner submitted two representations dated 12-2-1994 and 11-4-1994. By the resolution dated 6-8-1994, the Board of Management rejected the petitioner's representations and by the communication dated 5-9-1994 the order of penalty was conveyed to the petitioner. By an order dated 23-9-1994 in WP Nos. 16903 of 1994 this Court suspended the proceedings impugned and as a consequence the petitioner was reinstated as Senior Assistant on 18-9-1995.
7. Mr. Sanjay Kumar, learned Counsel for the petitioner raised a plurality of contentions to assail the impugned orders including that the second enquiry by the Board was not maintainable in view of the earlier enquiry by a 3-Man Committee and that relevant and material evidence including the statement of the lecturer Mr. Raman to the effect that the Supdt., T.N. Chetty obtained answer scripts from the Principal's Office after receiving Rs.4000/- along with Chiranjeevi, another Lecturer, which was let in during the enquiry by the 3-Man Committee was not introduced before the Board, thereby denying fair and due process of law. It is also contended that discriminatory standards have been employed in exercising disciplinary power and that while the Addl.Controller of Examinations Mr. Radhakrishna and Mr. Raman and Mr. Chiranjeevi, who were directly established as having been involved, have been reinstated imposing only a minor penalty of stoppage of two increments, the petitioner was vindictively singled out for imposition of a major penalty, even though the charges against him have not beer established even by the standards requisite in a disciplinary proceedings.
8. The principal contention on behalf of the petitioner, however, is that the findings of the Board that the petitioner is guilty of the charges alleged, is a finding based on no evidence, even circumstantial evidence as found by it and that in the circumstances the findings and the consequent imposition of penalty are non est. If this contention is well founded, then it would be unnecessary to consider the other contentions urged.
9. The analysis of facts as set out in the report dated 5-7-1993, of the Board constituted to enquire into the charges against the petitioner and two others, to the extent relevant for the purpose of this adjudication, is as under:
(A) In June, 1990, Mr. Y.D. Gupta, was the controller of Examinations and in-charge Registrar and Mr. T. Radhakrisna was the Addl.Controller of Examination among several sections in the examination branch, B-VI Section is the one which receives answer scripts from various centres of examinations. At the relevant point of time, Mr. T.N. Chetty was the Supdt., and the petitioner was the Sr.Asst. Mr. O. Padmanahhan, was another Sr.Asst., of the section besides whom there were Attenders and other Jr. Assistants.
(B) The procedure followed in B-VI Section is that after the examinations the answer scripts together with registered Nos., recorded thereon by the candidates are received in sealed covers from the concerned Supdts., of the P.G. Examination centres. The sealed covers are received either by the Supdt., T.N. Chetty or the Sr.Asst. the petitioner. In the presence of the other senior officers of other sections the sealed covers are opened, the scripts checked with reference to the lists sent by the Chief Supdts., of the P.O. Examination Centres after which the answer scripts are left in the custody of the Supdt., and the petitioner. Code Nos., are affixed on the perforate lower portion of the first sheet of the answer scripts as well as on the upper portion of the same sheet. The Code Nos., are assigned by the Supdt., T.N. Chetty. The counter-foils containing the Code Nos., and regd. Nos., are detached from the answer scripts and handed over to the petitioner for safe custody. After announcing the results, on an application for revalualion of any particular answer script received within the prescribed period, the answer scripts will be picked up with reference to the Code Nos., noted in the counter foils. Till then, the answer script bundles with the counterfoils detached would be left in the Section hall 011 the floor or on the tables depending upon availability of place.
(C) The private candidate Mr. U. V. Ramana, appeared for all the four papers of M.A.(English) Previous Examination in June, 1990. After valuation he was found to have obtained 47%. 37%, 40% and 36% in papers I to IV respectively. On the basis of these marks he passed the examination in third class. In January or February, 1991, the candidate applied for revaluation of all the four papers. The Sr.Asst., Padmanabhan received the application for revaluation and gave the list of all candidates who have applied for revaluation, to the petitioner. The application contained only the regd. No. The petitioner, thereupon, checked the counter-foils and gave the correspondent Code Nos. to the Attender P. Chandrababu and asked him to pick up the answer scripts. The attender picked tip 4 answer scripts and immediately the Attender and the petitioner noticed several suspicious features and thereupon suspecting that the answer scripts have been substituted tried to contact the Supdt. The other Sr.Asst., Padwanabhan was also present at that time. Since the Supdt., was not available, the Attender and the petitioner kept the suspect answer sheets in the almairah of the Addl.Controller of Examinations and brought it to the notice of the Supdt., after he returned. The Supdt., direcled them to leave the answer scripts and that he would discuss the matter with the Addl.Controller of Examinations. The Supdt., applied for leave.
(D) After consequent internal procedure and an enquiry into the matter by a 3-Man Committee, by resolution dated 23-8-1991 the Board of Management decided to retain the original marks awarded to the candidate ignoring the marks obtained on revaluation and the candidate was also debarred.
(E) On analysis of evidence by the Board it came to the conclusion that when the scaled covers containing the answer scripts were opened in B-VI Section, four persons including the petitioner viz., T.N. Chetty, Supdt., Y.D. Gupla, Controller of Examinations and C'. Radhakrishna. Addl. Controller of Examination had access to the Code Nos. The Board also concluded that on all probabilities only these four officers and none other know the Code Nos., affixed on the answer scripts. Direct evidence not being available, the Board proceeded to consider the impact of circumstantial evidence.
(F) Analysing the evidence against the petitioner, the Board reasoned as under:
(i) The petitioner is the junior most of the 3 charged officers and the custodian of the counter-foils on which Code Nos., were noted. It was possible for him to capitalise on his exclusive possession without knowledge of his superiors. The superiors could not have remembered the registered numbers and the corresponding Code Nos. and therefore could not have committed the misconduct without the help of the petitioner. The Board, therefore, conjectured that the petitioner was one of the persons, if not the sole one, who passed on the Code Nos., to the candidate to help him in bringing the substituted answer scripts into existence and thus abused his official position.
(ii) The bundles of answer scripts are left in a hall to which those working in various sections had easy access. It is thus not possible to fix responsibility on any particular person for removal of the original scripts and substitution.
(iii) The behaviour of the Supdt., Mr. T. Narayan Chetti was unusual. Instead of immediately acting upon the report of the petitioner and the Attender who informed him about the suspicious features of the answer scripts, the Supdt., did nothing immediately and proceeded on leave. The Supdt., also reacted unusually to the request of the other Sr. Asst., Padmanabhan that a decision should be taken regarding the genuineness of the answer scripts. The answer scripts were permitted to be sent for revaluation and even after their return after revaluation, instead of taking any action the matter was permitted to be kept in abeyance. Only on 27-3-1991, the Supdt, added a note that the matter might be placed before the malpractices committee. This conduct discloses that T.N. Chetty colluded with the petitioner in passing on information about the Code Nos., to the candidate and did everything to supress the fraud. The controller of Examinations Mr. Gupta also did not take prompt action after the matter came to his notice and in fact transferred the Addl. Controller of Examinations and tried to put the blame on the said officer. Thus, this officer is also guilty of abuse of official position. In conclusion all the three officers including the petitioner, were held guilty of misconduct and the charges framed against them were found proved.
10. The parameters of judicial review of a disciplinary proceedings are too well recognised and settled to merit an exhaustive and detailed analysis of the governing concepts as has evolved over a period of time. The concepts, however, to the extent relevant to the facts on hand may be summarised as under:
(a) In an application under Article 226 of the Constitution, High Court is not constituted as a Court of appeal against the decision in a disciplinary proceedings. It is merely concerned with determining whether the enquiry is held in accordance with the procedure prescribed, in confirmity with the principles of natural justice and whether there is some evidence, which the authority entrusted with the duty to hold enquiry has accepted and which evidence may reasonably support the conclusions that the delenquent officer is guilty of the charges alleged.
(b) It is extraneous to the judicial review function to either review or reappreciate the evidence so as to arrive at an independent finding on the evidence. High court would however be within its ordained function to consider whether the authority has disabled itself from reaching a fair decision by considerations extraneous to the evidence and the merits of the case or by allowing itself to be influenced by irrelevant consideration or whether the conclusion on the very fact of it is so wholly arbitrary and capricious that no reasonable person could have-arrived at that conclusion on similar grounds vide State ofA.P. v. Sreeram Rao, .
(c) Disciplinary proceedings by a public authority constitute a species of administrative action amenable to the broad principles and concepts operative on every administrative action. The validity of an administrative order which includes the appreciation of evidence by disciplinary authority is susceptable to be tested as every other administrative action on the touchstone of the tests enunciated by a catena of authorities including in the celebrated case Associated Provential Picture House Ltd. v. Wednesbury Corporation, 148(1) KB 23. A conclusion even of the disciplinary authority as to the evidence considered would be vitiated if it is one which would be arrived at by no reasonable person or on no evidence, is irrational or based on conjectures, surmises or suspicions vide Union of India v. G. Ganayutham, ; R.S. Saini v. State of Punjab and others, 1999 (5) Scale 427.
(d) Even in case of circumstantial evidence considered as a foundation to arrive at a finding of guilt in a departmental proceedings it is necessary that the circumstances on which the conclusion is to be drawn should be fully established. Facts established should reasonably support the conclusions of the enquiring authority and the chain of circumstantial evidence must be adequate enough as to avoid any scope for surmises, conjuclnres and suspicions needed to fill up the potential gaps in the chain of circumstances. In the absence of any direct authority on the quality of circumstantial warranted in a disciplinary proceedings this Court has fine tuned the decision of the Supreme Court in Sharad Birdhichand Sarda v. Stale of Maharashtra, , (which is a decision rendered in a criminal case) to the conceptual requirement of a disciplianry case.
11. In the case on hand the evidence available on record and considered by the Board is to the effect that 4 persons including the petitioner had access to the Code Nos., given to the answer scripts. All the four had knowledge of the Code Nos. Apart from these four, the answer scripts were easily accessable not only to the other officers, Jr. Assistants, and Attenders working in Section BVI, but to other employees working in various sections in the building. There is no evidence at all, even circumstantial, warranting a conclusion that the petitioner either by himself or in collusion with the other two officers the Supdt., and the Controller of Examination, facilitated the supply of Code Nos., to the private candidate. The language employed by the Board to arrive at the conclusion of guilt or in assessing the relevant facts clearly discloses that surmises, conjectures and suspicions fertilised the conclusions and not evidence even circumstantial. Such surmises and cojectures of the Board were passed on as logical and rational conclusions under the facade of being based on circumstantial evidence.
12. Sri B. Adinarayana Rao, learned Counsel for the respondents, after analysis of the report of the enquiry conceded with his usual fairness that the evidence on record and as analysed by the Board does not constitute any evidence warranting conclusion of the petitioner's guilt as found by the Board.
13. In the result, the findings in the enquiry report dated 5-7-1993 are vitiated as having been based on no evidence to justify the conclusion of the petitioner's guilt and are therefore noti est. Consequently the impugned proceeding visiting the petitioner with the penalty of reduction in rank permanently from Senior Assistant to Junior Assistant also stands invalidated ab initio.
14. In the result, WP No. 16903 of 1994 is allowed and the proceedings of the Board of Management and the consequent communication dated 5-9-1994 are set aside with all consequential and incidental benefits as are accruable to the petitioner on such invalidation declared.
15. Consequently the cause in WP No.7684 of 1994 not survive for consideration and is disposed of accordingly.
16. In the circumstances, no order as to costs.