Madras High Court
S.Vasudevan vs The Government Of Tamil Nadu on 4 September, 2013
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.09.2013 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR W.P.No.27009 of 2007 S.Vasudevan .. Petitioner -Vs- 1.The Government of Tamil Nadu represented by the Secretary to the Government Health and Family Welfare Department Fort St. George, Chennai 600 009 2.The Director of Public Health and Preventive Medicine Chennai 600 006 3.The Secretary Tamil Nadu Public Service Commission Chennai 600 002 ...Respondents Writ petition filed under article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to call for the records relating to the impugned order of the first respondent in G.O.(D) No.1319, Health and Family Welfare (D2) Department, dated 05.12.2006 confirming the earlier order of the first respondent in G.O.(D) No.388, Health and Family Welfare (D2) Department dated 19.03.2003 and the order of the second respondent in R.No.37783/63/DA/92/S2 dated 29.08.2001 and quash the said orders and direct the respondents to reinstate the petitioner in service with all attendant benefits including retirement with effect from 30.11.2000 with all retirement benefits. For Petitioner : Mr.P.Rajendran For Respondents : Mr.M.S.Ramesh Additional Government Pleader for R1 & 2 Mr.C.N.G.Niraimathi Standing counsel for TNPSC for R3 ----- ORDER
The petitioner was initially appointed as Health Assistant in the Panchayat Union, Mannargudi on 20.02.1963. Thereafter he was promoted as Health Inspector on temporary basis on 10.11.1968. Subsequently he was selected by the Tamil Nadu Public Service Commission on 09.04.1970 and thereafter continued as a Public Service Commission candidate in the post of Health Inspector. He moved to the selection grade in the Post of Health Inspector on 10.11.1978 and got promoted as Block Health Supervisor on 09.07.1999. He was due to retire from service on 30.11.2000. However, Disciplinary Proceedings were initiated against him in 1991 and charges were framed by the Commissioner for Disciplinary Proceedings, Madurai Region, Chennai in his proceedings RCB1/1972/90 dated 09.10.1991. The same was challenged by the petitioner before the erstwhile Tamil Nadu Administrative Tribunal, Chennai in O.A.No.2468 of 1992. The petitioner was able to get an order of stay of all further proceedings on 15.05.1992.
2. Since the disciplinary proceedings initiated against him was pending, the petitioner was placed under suspension on 28.11.2000, namely two days prior to the date on which he was due to retire on Superannuation by the proceedings of the Director of Public Health and Preventive Medicine, Chennai issued in his proceedings No.R.No.37783/48/DA/92/S2 dated 28.11.2000. Simultaneously, another order was passed by the Director of Public Health and Preventive Medicine, Chennai in his proceedings in R.No.37783/49/DA/92/S2 dated 28.11.2000 not allowing the petitioner to retire from service.
3. On 02.01.2001, the Tamil Nadu Administrative Tribunal dismissed the O.A with a direction for completion of the enquiry within a period of 6 months from the date of receipt of the copy of the order of the Tribunal and to pass final order within a period of two months after the completion of enquiry. Accordingly, the enquiry was subsequently taken up by the Commissioner for Disciplinary Proceedings, Thanjavur who completed the enquiry and submitted a report. After communicating a copy of the report and getting the explanations and additional explanations from the writ petitioner, the Director of Public Health and Preventive Medicine, Chennai accepted the finding of the Commissioner for Disciplinary Proceedings, Thanjavur and passed the impugned order in R.No.37783/63/DA/92/S2 dated 29.08.2001 imposing a penalty of removal from service.
4. The appeal filed by the writ petitioner was rejected by the Government in their order made in G.O.(D).No.388, Health and Family Welfare (D2) Department dated 19.03.2003. Again the petitioner submitted a review petition and the same was rejected by the Government in their order in G.O.(D).No.1319, Health and Family Welfare (D2) Department, dated 05.12.2006. The said order made in G.O.(D).No.1319, Health and Family Welfare (D2) Department, dated 05.12.2006 is impugned in the present writ petition and writ petitioner has prayed for the issuance of a writ of certiorarified mandamus to call for the records relating to the impugned order made in G.O.(D) No.1319, Health and Family Welfare (D2) Department, dated 05.12.2006 confirming the earlier order of the first respondent in G.O.(D) No.388, Health and Family Welfare (D2) Department dated 19.03.2003 and the order of the second respondent in R.No.37783/63/DA/92/S2 dated 29.08.2001 and quash the said orders. He has also prayed for the issuance of a direction to the respondents to reinstate the petitioner in service with all attendant benefits, including retirement with effect from 30.11.2000 with all retirement benefits.
5. The writ petition is resisted on the basis of the counter affidavit filed by the first and second respondents on behalf of the respondents, wherein it has been contended that the writ petitioner was found to have committed grave misconduct and a penalty of removal from service was imposed after due enquiry following the principles of natural justice and adhering the other rules relating to Disciplinary Proceedings. It has also been contended that the punishment imposed is not disproportionate to the misconduct and that the appeal preferred by the petitioner and the review application filed by the petitioner were properly dealt with and rightly dismissed by the Government.
6. The arguments advanced by Mr.P.Rajendran, learned counsel for the petitioner, by Mr.M.S.Ramesh, learned Additional Government Pleader on behalf of the respondents 1 and 2 and by Mr.C.NG.Niraimathi, learned counsel for the third respondent were heard. The materials placed before the Court by both sides were also taken into consideration.
7. The writ petitioner, as a Government servant, suffered the penalty of removal from service for the alleged misconducts for which he faced disciplinary proceedings and he has come forward with the present writ petition challenging the findings of the Enquiry Officer, punishment imposed by the disciplinary authority, the order passed by the Government dismissing the appeal and also the order passed by the Government rejecting his application for review. Besides challenging the said orders, the petitioner has also sought for a direction in the nature of mandamus for reinstatement in service and permission to retire on attaining the age of superannuation with all attendant benefits including the retiral benefits.
8. The first and foremost contention of the learned counsel for the petitioner is that the Government, which dealt with the appeal filed by the petitioner against the order of removal, before passing an order dismissing the appeal filed by the petitioner, sought the opinion of the Tamil Nadu Public Service Commission and then passed the order in G.O.(D) No.388, Health and Family Welfare (D2) Department dated 19.03.2003 dismissing the appeal as devoid of merits, solely relying on the opinion of the Tamil Nadu Public Service Commission without independently considering the appeal and forgetting the fact that the opinion of the Tamil Nadu Public Service Commission is only directory and not mandatory and that hence, the order of the first respondent in G.O.(D) No.388, Health and Family Welfare (D2) Department dated 19.03.2003 is vitiated. The further contention of the learned counsel for the petitioner is that though the first respondent relied on the opinion of the Tamil Nadu Public Service Commission for dismissing the petitioner's appeal, copy of the communication made by the Tamil Nadu Public Service Commission incorporating its opinion was not supplied to him and no opportunity was given to him to canvas why the opinion should not be accepted and acted upon; that in view of the same, there was violation of the principles of natural justice and that on the said score also, the order of the first respondent dismissing the appeal is vitiated. It is also the contention of the learned counsel for the petitioner that the impugned order made in G.O.(D).No.1319, Health and Family Welfare (D2) Department, dated 05.12.2006 came to be passed mechanically without considering the valid submissions made by the writ petitioner in the review petition; that the said order came to be passed once again based on the opinion of the Tamil Nadu Public Service Commission opining that the review petition was bound to be rejected and that hence, the impugned order dated 05.12.2006 is also vitiated.
9. In support of this contention, learned counsel for the petitioner relied on the judgment of a Division Bench of this Court in Union of India represented by the Secretary to Government of India, Ministry of Defence, Department of Revenue (Central Board of Excise and Customs), New Delhi and Another v. The Registrar, Central Administrative Tribunal, Chennai and another reported in (2005) 2 MLJ 154, the Division Bench relying on the judgment of the Supreme Court in State Bank of India Vs. D.C.Agarwal reported in AIR 1993 SC 1997 which was rendered after the 42nd amendment came into force, held that irrespective of Rule 17 of the C.C.S (Conduct) Rules, inasmuch as the Disciplinary Authority relied on the advice of the Union Public Service Commission before imposition of punishment, it was but proper to supply a copy of the said report to the delinquent before passing an order of punishment. In the judgment of the Supreme Court in State Bank of India Vs. D.C.Agarwal, it was observed by the Supreme Court as follows:
"4.... Law on natural justice is so well settled from series of decisions of this Court that it leaves one bewildered, at time, that such bodies like State Bank of India, who are assisted by hierarchy of law officers, commit such basic and fundamental procedural errors that Courts are left with no option except to set aside such orders. Imposition of punishment to an employee, on material which is not only not supplied but not disclosed to him, has not been countenanced by this Court. Procedural fairness is as much essence of right and liberty as the substantive law itself."
10. Relying on the said observations of the Hon'ble Supreme Court and the Division Bench of this Court, learned counsel for the writ petitioner argued that non-furnishing of the report of the Tamil Nadu Public Service Commission recommending dismissal of the appeal amounted to denial of reasonable opportunity as the petitioner did not have the opportunity of putting forth his submissions to the appellate authority, before a decision in the appeal was made, as to why the opinion of the Tamil Nadu Public Service Commission should not be accepted. It is the contention of the learned counsel for the writ petitioner that the said failure had resulted in prejudice to the writ petitioner since he was denied a reasonable opportunity of being heard regarding a material which was relied on by the Appellate Authority for the dismissal of the appeal and also for the rejection of the review petition.
11. In reply to the above said contention, learned Additional Government Pleader relied on a Judgment of the Supreme Court in State of Uttar Pradesh v. Manbodhan Lal Srivastava reported in 1958 SCJ 150 and a judgment of a Division Bench of this Court in the Chief Engineer (High Ways and Rural Works), Madras 5 and another V. A.Chengalvarayan reported in MLJ Reports 1982, Page 250. In the former case relied on by the learned Additional Government Pleader, the Hon'ble Supreme Court has held that Article 320 (3) of the Constitution of India is not mandatory and that it does not confer any right on the public servant and the absence of consultation or irregularity in consultation does not confer him a cause of action in a Court of law and that Article 311 of the Constitution of India is not controlled by Article 320. The said observation of the Hon'ble Supreme Court was relied on by the Division bench of this Court in the second case cited supra by the learned Additional Government pleader. In the said case, the Division Bench has made the following observations:
"7.The next question for consideration is whether the impugned order of the Government is vitiated by non-service of the recommendations of the Public Service Commission and calling for an explanation on that report from the delinquent officer. Under Article 320 (3) of the Constitution, the State Public Service Commission shall be consulted on all disciplinary matters affecting a person serving under the Government of a State in a civil capacity, including memorials or petitions relating to such matters, and it shall be the duty of the Public Service Commission to advise on any matter so referred to them. The proviso to clause (3) of Article 320 states that the Governor of a state as respects the services and posts in connection with the affairs of a State may make Regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted. In exercise of the powers under Article 320 and all other powers enabling, the Tamil Nadu Government have published the Tamil Nadu Public Service Commission Regulations, 1954. Under Regulation 18 (b) among others where the Government proposes to pass an original order imposing a punishment of dismissal from service of any State Government servant it shall consult the Service Commission. The Commission's recommendations or advice had been held to be directory in nature in U.R.Bhatt V. Union of India [AIR 1962 S.C. 1344].
.....What is relevant to be noted here is that the Supreme Court had categorically held that Article 311 of the Constitution is not controlled by Article 320. Therefore, the reasonable opportunity contemplated under Article 311 does not cover the furnishing of the advice of the Service Commission to the delinquent officer for offering his remarks on such advice or recommendation. In fact, the stage at which the consultation with the Public Service Commission is provided itself shows that it is only of recommendatory nature and no right could flow to a delinquent officer on the basis of such report. Further, in this case factually the Public Service Commission has not disagreed with the Tribunal on charges 2 and 4. So far as the punishment is concerned, it had not proposed any higher punishment than that recommended by the Tribunal. In the circumstances, the report of the Commission also could not be stated to be against the delinquent officer. We are therefore unable to agree with the learned counsel for the respondent that on the ground of non-supply of Commission's report, the impugned order of dismissal is vitiated. No other point is urged in this appeal."
12. Relying on the above said observation of the Division Bench of this Court made in (2005) 2 MLJ 154, learned Additional Government Pleader argued that the non-furnishing of Tamil Nadu Public Service Commission's recommendation to the writ petitioner before passing the orders dismissing the appeal and dismissing the review petition would not give any cause of action for the petitioner to challenge the orders concerned and that the orders could not be held to be vitiated on the ground of non-supply of copies to the writ petitioner, of the advice of the Tamil Nadu Public Service Commission and failure to afford him an opportunity to make his submissions before passing any order.
13. As an answer to the above said contention raised by the learned Additional Government Pleader, learned counsel for the petitioner submitted that the view expressed by the Division Bench in the above said judgment was based on the Judgment of the Supreme Court which was pronounced before 42nd amendment to the constitution; that a subsequent Bench relying on another Judgment of the Hon'ble Supreme Court, which was pronounced after the 42nd amendment to the Constitution was brought into force, held otherwise and that hence, the non-supply of the report of Tamil Nadu Public Service Commission to the petitioner and failure to afford an opportunity to the petitioner to make his representations against the recommendations of the Service Commission would vitiate the orders of the Government dismissing the appeal and dismissing the review petition. The said judgment relied on by the learned counsel for the petitioner is one pronounced in Union of India represented by the Secretary to Government of India, Ministry of Defence, Department of Revenue (Central Board of Excise and Customs), New Delhi and Another v. The Registrar, Central Administrative Tribunal, Chennai and another reported in (2005) 2 MLJ 154. In the said judgment, the Hon'ble Division Bench referred to the judgment of the Supreme Court in State Bank of India Vs. D.C.Agarwal reported in AIR 1993 SC 1997 and observed that in the said case before the Supreme Court, the question posed by the Supreme Court was whether the Disciplinary Authority while imposing punishment, major or minor, could act on material which was neither supplied nor shown to the delinquent? and the High Court answered the question in favour of the delinquent holding that imposition of punishment on an employee based on a material which was not only not supplied but also not disclosed to him had not been countenanced by the Supreme Court." The relevant passage from the Judgment of the Supreme Court in State Bank of India Vs. D.C.Agarwal reported in AIR 1993 SC 1997, which was relied on by the Division Bench reads as follows:
"4.... Law on natural justice is so well settled from series of decisions of this Court that it leaves one bewildered, at time, that such bodies like State Bank of India, who are assisted by hierarchy of law officers, commit such basic and fundamental procedural errors that Courts are left with no option except to set aside such orders. Imposition of punishment to an employee, on material which is not only not supplied but not disclosed to him, has not been countenanced by this Court. Procedural fairness is as much essence of right and liberty as the substantive law itself."
14. Of course the orders passed by the Government in G.O.(D) No.388, Health and Family Welfare (D2) Department dated 19.03.2003 and G.O.(D).No.1319, Health and Family Welfare (D2) Department, dated 05.12.2006 are order of dismissal of the appeal preferred by the writ petitioner against the order dismissing him from service and the order dismissing the review petition filed for reviewing the order of the Government made in the appeal petition filed by the petitioner. The Director of Public Health and Preventive Medicine (second respondent) is the authority who passed the order of removal dated 29.08.2001. The second respondent, who was the punishing authority, did not seek any advice of the Tamil Nadu Public Service Commission as it was not mandatory. There cannot be any valid ground of attack on the order of the second respondent on the ground that the report of the Public Service Commission was not furnished to the petitioner and remarks were not obtained before passing the order imposing punishment, because the punishing authority did not get any advice from the Tamil Nadu Public Service Commission and it was the Appellate Authority who sought the advice of the Tamil Nadu Public Service Commission while dealing with the appeal filed by the petitioner. Therefore, there could not be any procedural infirmity vitiating the order of the second respondent removing the petitioner from service. However, the Government being the appellate authority against the order of quasi-judicial authority, namely the second respondent, it ought to have considered the points urged by the petitioner (appellant before the appellate authority) and it ought to have passed an order assigning reasons dealing with the contentions raised by the appellant before it.
15. As rightly contended by the learned counsel for the writ petitioner, the Government, as appellate authority, while passing the order in the appeal and also passing the impugned order in the review petition, did not assign any other reason excepting referring to the opinion of the Tamil Nadu Public Service Commission, which would show that the appellate authority passed a mechanical order without any application of mind. It is the contention of the writ petitioner that, besides denial of reasonable opportunity to make his submissions against the opinion of the Tamil Nadu Public Service Commission since the same was not furnished to him before the order dismissing the appeal was made, there was no application of mind and total abrogation of the power of the appellate authority by simply relying on the views of the Tamil Nadu Public Service Commission.
16. It is an admitted fact that the opinion of the Tamil Nadu Public Service Commission was not furnished to the writ petitioner and no opportunity was given to him to make his submissions as to why the opinion of the Tamil Nadu Public Service Commission should not be accepted. It is a well established principle that in disciplinary matters, a civil servant does have both a constitutionally guaranteed right to the adherence of the principles of natural justice. Of course interpreting Article 311 and 320 of the Constitution of India, the Supreme Court has opined that Article 311 is not controlled by Article 320 and the requirement of consultation with the Public Service Commission was held to be directory and not mandatory as the State was allowed to frame regulations prescribing the matters in which the Service Commission has to be consulted.
17. Under Regulation 18-B of the Tamil Nadu Public Service Commission Rules, when the Government is the Punishing authority and it proposes to pass an order imposing a punishment of dismissal from service, it is mandatory for the Government to consult the Public Service Commission. However, recommendations or advice of the Commission have been held to be directory. Views have also been expressed to the effect that reasons have to be assigned only when the Government wants to reject the recommendation of the Public Service Commission. As per the regulations, the Government of Tamil Nadu seems to have consulted the Tamil Nadu Public Service Commission. Tamil Nadu Public Service Commission recommended dismissal of the appeal on the ground that it did not find any procedural irregularity or violation of principles of natural justice by the Enquiry Officer and the punishing authority. When the Government is required to consult the Public Service Commission while dealing with an appeal it does not mean that it can delegate the power of making a decision on the appeal to the Tamil Nadu Public Service Commission and simply record the recommendation of the Public Service Commission and dispose of the appeal accordingly.
18. As rightly pointed out by the learned counsel for the writ petitioner what the Government have done in this case is to simply reproduce the recommendation of the Tamil Nadu Public Service Commission and dismiss the appeal and also the review petition. The order of the Government dismissing the appeal and the order of the Government dismissing the review petition do not contain materials to show that the Government independently appreciated the evidence and arrived at a conclusion that the finding of the Enquiry Officer, which was accepted by the Disciplinary Authority, was to be sustained. In this regard, it is relevant to quote the observations of a learned Single Judge of this Court in V.P.Chellappa Vs. Superintending Engineer, Tamil Nadu Electricity Board, Dharmapuri Electricity Distribution Circle, Dharmapur-5 and others reported in (2010) 1 MLJ 714.
"8.It is well settled that the disciplinary as well as appellate authorities are the fact finding authorities and therefore, when the right of appeal is a substantive right, the appellate authority ought to have passed a reasoned order dealing with the contentions raised in the appeal. At least the appellate authority, in the interest of justice, should have been indicated his mind while disposing of the statutory appeal. Consideration of facts by the disciplinary authority as well as appellate authorities are conspicuously absent in the impugned orders."
19. In the case on hand, in the impugned order in G.O.(D) No.388, Health and Family Welfare (D2) Department dated 19.03.2003 dismissing the appeal preferred by the writ petitioner, besides reproducing the charges and stating that the Director of Public Health and Preventive Medicine issued orders dismissing the writ petitioner from service and the said order was under challenge in the appeal and that as required under the Rule, Tamil Nadu Public Service Commission was consulted for its views, the appellate authority has not dealt with the findings of the Disciplinary Authority. No discussion regarding the charges and evidence for the proof of the charges was made by the appellate authority. On the other hand, the order dismissing the appeal extracted the views of the Tamil Nadu Public Service Commission and proceeded to state that the views of the Service Commission was carefully examined by the Government and the Government have decided to accept the advice and dismiss the appeal preferred by the writ petitioner. The relevant portion in the said order is extracted hereunder:
"........ There is no violation of Rules (or) Procedures prescribed under Rule 8,9 and 10 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The charges of corruption as well as violation of Government servants conduct rules have been proved against the appellant. In such circumstances there is no point in allowing the appellant in Government service which will not be good for public interest and service. It is evident that ample chances were given to the appellant as per procedure and then only final orders of Removal from service ordered by the Director of Public Health and Preventive Medicine. There are no acceptable reasons found in his appeal petition. The Commission therefore advises to dismiss the appeal as devoid of merits."
Paragraph 4 alone shows the consideration of the appellate authority. It reveals that there is total non-application of mind and it simply passed an order dismissing the appeal stating that the views of the Tamil Nadu Public Service Commission were accepted. The order of the appellate authority cannot be said to be a reasoned order. In a way it can be even stated to be a crippled and non-speaking order. As the appellate order was of such a nature, the writ petitioner preferred a review petition. The same was also dealt with in the same manner. The order passed by the Government in G.O.(D).No.1319, Health and Family Welfare (D2) Department, dated 05.12.2006 dismissing the review petition cannot be placed on a better footing than the order of dismissal passed by the Government. However, since the writ petitioner had raised a plea that he had been denied the opportunity of making his submission against the views of the Tamil Nadu Public Service Commission before an order was passed in the appeal, the Government chose to send a copy of the Tamil Nadu Public Service Commission's letter containing its views along with the order passed in G.O.(D).No.1319, Health and Family Welfare (D2) Department, dated 05.12.2006 dismissing the review petition and not even before passing the said order. The non-furnishing of the letter of the Tamil Nadu Public Service Commission which was relied on for dismissing the appeal and also the review petition will amount to denial of reasonable opportunity to the writ petitioner to make his submissions as to how the view of the Tamil Nadu Public Service Commission was wrong and why the same should not be accepted. The procedure adopted by the Government in sending a copy of the letter of the Tamil Nadu Public Service Commission containing its views along with the order dismissing the Review Petition shall be equivalent to putting a dead person in the ventilator after his death. Therefore, this Court is convinced that there had been violation of principles of natural justice as a document, which was not furnished to the petitioner and regarding which he was not given an opportunity to make his submissions, was made the sole ground on which the appeal preferred by the writ petitioner and the review petition preferred by the writ petitioner were dismissed by the impugned orders. Apart from the procedural irregularities involving violation of principles of natural justice , there is also absence of application of mind by the appellate authority while considering the appeal and the review petition. Hence, this Court does have no hesitation in coming to the conclusion that the said orders are vitiated.
20. In the normal circumstances, in such cases the impugned order shall be set aside and the matter shall be remitted back to the appellate authority to consider the appeal afresh on merits and pass a reasoned order. But at this distance of time, it shall not be desirable to adopt such a method and if such a course is adopted, it may even result in miscarriage of justice. Hence, this Court is inclined to go into the question whether the finding of the disciplinary authority regarding the charges can be sustained.
21. At the out set it should be kept in mind that the disciplinary proceeding itself was initiated after a lapse of 10 20 years from the alleged dates of Commission of the acts of misconduct. In many of the charges, dates and other particulars have not been given and in fact, almost all the charges that were found by the Disciplinary Authority as not proved, were vague. Two sets of charges under the Captions Charge No.I and Charge No.II were framed. Under the head of Charge No.I, totally 9 incidents were projected as the acts of deliquency. They were referred to as Items (i) to (ix) of Charge No.I. Out of the 9 items in Charge No.I, except Item Nos. (iv) and (viii), all other charges were not substantiated even as per the report of the Enquiry Officer. Even those items namely Items (iv) and (viii) of Charge No.I, according to the Enquiry Officer, were partly proved. Those two charges which were found by the Enquriy Officer to be proved are as follows:
(iv) During the year 1984, you (Accused Officer) had demanded and received Rs.300/- as illegal gratification from Thiru.M.Perumal, S/o.Muthusamy, Maniayeripatti Village, a registered contractor of Budalur Panchayat Union, as a motive or reward other than legal remuneration, to get him a contract work under National Rural Employment Programme from Budalur Panchayat Union, but returned the said money to him after about 2 months as you (Accused Officer) could not get him any work as promised;
(viii) during 1979, you (Accused Officer) had demanded and received illegal gratification of a total sum of Rs.350/- at Rs.200/- and Rs.150/- respectively from Thiru.M.Palanivel, S/o.Marudhappan, Indalur, for making arrangements and to draw a new blue print for adding a wet grinder and a machine for grinding chillies in the existing Manimegalai Rice Mill at Seyyamangalam owned by his father Thiru.maruthappan and also took away their old blue print and failed to give a new blue print nor return the old one till you (Accused Officer) were transferred from Budalur;"
22. In this regard, the said Perumal referred to in Item No.(iv) of Charge No.I was examined as Departmental Witness No.8. He has stated that the said amount was given by him to the writ petitioner for getting a contract work and it was taken back from him after two months. The incident is said to have taken place somewhere in the year 1984. The charges were framed only in 1991. The said Perumal deposed in 2001. He was not able to furnish the date on which he made payment of the amount mentioned in Item No.(iv) of Charge No.I and other details. There is also no proof that the said Perumal was a registered contractor or he was regularly taking the contract work. There is no evidence to show what was the nature of the contract work that was promised to be obtained by the accused for Perumal? who were all the competitors and who was awarded the contract?. It is highly improbable that a person who got an amount for getting a contract work would have returned the same within two months. Excepting the statement of Perumal, there is no other piece of evidence to support and substantiate Item No.(iv) of Charge No.I. Absence of other evidence is sought to be explained by the Commissioner for Disciplinary Proceedings that the arrangement between the petitioner and the said Perumal was made in privacy and no one else knew about it. The mere fact that the dealing was made in secrecy, without the knowledge of others, would not justify the Disciplinary Authority's choice to simply rely on the uncorroborated statement of the sole witness. There is no evidence as to what was the contract work the witness Perumal wanted the writ petitioner to get for him. There is no evidence that the writ petitioner approached any Officer having the power of assigning the contract work to a Contractor for getting the contract work to the witness Perumal. There is no evidence to show the source from which the witness paid the amount. There is also absence of evidence to show the receipt of the said amount from the accused after two months. Date on which the amount was paid and the date on which the amount was returned were also not furnished. In the absence of all such particulars, this Court wonders how the Commissioner for Disciplinary Proceedings came to the conclusion that the said charge was proved and how the Punishing authority, namely the second respondent also accepted the same. The said finding regarding Item No.(iv) of Charge No.I is no doubt perverse.
23. Similar is the case of Item No.(viii) of Charge No.I. The Charge itself says that the writ petitioner had taken the old blue print of the Rice Mill owned by one Palanivel and Maruthappan with their permission for preparation of a new blue print so as to add Additional Grinder and Grinder for grinding chillies and he received Rs.350/- in two installements at Rs.200/- and Rs.150/- respectively. The said occurrence, according to the charge, took place in 1979. The charge came to be framed in 1991, namely after 14 years. Regarding this Item of charge No.I also, there is no reliable evidence and the finding of the Enquiry Officer, which was accepted by the Disciplinary Authority, has to be termed perverse as it is not based on legally reliable evidence.
24. The second charge consists of two parts. According to the respondents, the petitioner had obtained 60 sovereigns from his father-in-law at the time of his marriage and also purchased 10 sovereigns of gold, but failed to furnish the details of the acquisition of Jewels in the annual return and thus, he had violated Rules 7(3) of the Tamil Nadu Government Servants Conduct Rules, 1973. Admittedly, the petitioner's marriage took place during the year 1978 and he married one Bhuvaneswari. For the said charge, the petitioner has stated that he did not get 60 sovereigns of gold jewels from his father-in-law. Tmt.Nagalakshmi is the step mother of the writ petitioner. The writ petitioner's wife Tmt.Bhuvaneswari figured as Departmental Witness No.24 and in fact she had stated that her parents had not given any Jewels at the time of her marriage with the accused. On the other hand, she had stated that her mother-in-law had given her jewels at the time of marriage. Tmt.Nagalakshmi, the step mother of the writ petitioner stated that since her step-son (writ petitioner) married a girl related to her, she gave 60 sovereigns of gold to her at the time of marriage. She herself stated that the jewels were given to Bhuvanewari on condition that she should return them on demand. When such was the statement of Nagalakshmi, the step mother of the writ petitioner, the mere fact that she had not mentioned about whether she got back the jewels from the wife of the writ petitioner, was sought to be used against the writ petitioner, to disbelieve the version of Nagalakshmi. The Enquiry Officer ought to have put a specific question whether she had got back the jewels or not and if not, the reasons for the same. Having failed to elicit such an answer, the Enquiry Officer had chosen to take advantage of the lacuna on his part as a point against the delinquent, namely the writ petitioner. As the said jewels were said to be given to the wife of the writ petitioner at the time of her marriage on condition that the same should be returned on demand, there was no acquisition of jewels and the writ petitioner could not have been expected to include the same in the statements of assets.
25. So far as the later part of the charge, namely purchase of 10 sovereigns at the time of his marriage, is concerned, the Enquiry Officer simply stated that the writ petitioner had not included the same in the statement of properties showing the acquisition of the movable properties. There is no evidence to prove that the writ petitioner had purchased 10 sovereigns of gold jewels at the time of his marriage and he omitted to include it in the property statement. What was the total weight of gold jewels found in the hands of the writ petitioner at the relevant point of time and what was the weight of gold jewels shown in his property statement have not been discussed. The charge as well as the evidence lack in material particulars. As such the Enquiry Officer and the Disciplinary Authority seem to have arrived at a conclusion that the Charge No.(II) also stood proved, merely on surmises without supported by reliable legal evidence. Of course, the strict rule of evidence shall not be applicable in Departmental enquiry. But the function of the Enquiry Officer being Quasi-judicial in nature, he should follow the principles of natural justice and he should give cogent reasons for arriving at a conclusion and giving perverse finding should be avoided. The Hon'ble Supreme Court in Roop Singh Negh Vs. Punjab National Bank and Others reported in (2009) 2 Supreme Court Cases 570 had occasion to deal with the scope of consideration of evidence in the departmental enquiry and it held that the conclusion based on conjectures and surmises could not be sustained. The following are the observations made:
"23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."
If the parameters applied by the Supreme Court in the above said case is applied to the case on hand, the findings of the Enquiry Officer regarding Item No.(iv) and (viii) of the Charge No.I can be held to be totally perverse based on no reliable evidence and the finding on Charge No.II is also perverse as it is based on conjectures and surmises.
26. For all the reasons stated above, this Court comes to the conclusion that the finding made by Enquiry Officer on Conjectures and surmises were accepted by the Disciplinary Authority which resulted in the passing of the impugned order of dismissal. The appellate Authority also committed an error in dismissing the appeal and the review petition without considering those aspects. There is a clear violation of the principles of natural justice. The findings on Items (iv) and (viii) of Charge No.I and Charge No. II are no doubt perverse. The punishment imposed based on such perverse finding cannot be sustained. Hence, the impugned order of the first respondent in G.O.(D) No.1319, Health and Family Welfare (D2) Department, dated 05.12.2006 confirming the earlier order of the first respondent in G.O.(D) No.388, Health and Family Welfare (D2) Department dated 19.03.2003 and the order of the second respondent in R.No.37783/63/DA/92/S2 dated 29.08.2001 are liable to be quashed.
In the result, the writ petitioner is allowed and the impugned order of the first respondent made in G.O.(D) No.1319, Health and Family Welfare (D2) Department, dated 05.12.2006 confirming the earlier order of the first respondent made in G.O.(D) No.388, Health and Family Welfare (D2) Department dated 19.03.2003 and the order of the second respondent made in R.No.37783/63/DA/92/S2 dated 29.08.2001 are quashed and the respondents are directed to reinstate the petitioner in service with all attendant benefits including permission to retire with effect from 30.11.2000 afternoon with all retirement benefits. No costs.
04.09.2013 Index:Yes/No Internet: Yes/No gpa
1. The Secretary to the Government Health and Family Welfare Department Fort St. George, Chennai 600 009
2. The Director of Public Health and Preventive Medicine Chennai 600 006
3. The Secretary Tamil Nadu Public Service Commission Chennai 600 002 P.R.SHIVAKUMAR.J., gpa W.P.No.27009 of 2007 04.09.2013