Madras High Court
The Principal Secretary To Government vs E.Nagarajan on 16 December, 2024
Author: C.Saravanan
Bench: R.Suresh Kumar, C.Saravanan
W.A.No.3473 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 16.12.2024
Coram:
THE HON'BLE MR.JUSTICE R.SURESH KUMAR
and
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.A.No.3473 of 2024
and C.M.P.No.27017 of 2024
1.The Principal Secretary to Government,
Social Welfare and Nutritious Meal Programme
(SW 1) Department,
Secretariat, Chennai – 600 009.
2.The Commissioner of Social Welfare,
Chennai – 600 032.
3.The District cum Mission Director,
Integrated Child Development Services,
Chennai – 600 113.
4.The District Social Welfare Officer,
Kancheepuram.
...Appellants
Versus
1.E.Nagarajan
2.The Secretary,
Tamil Nadu Public Service Commission,
Chennai – 600 003.
...Respondents
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https://www.mhc.tn.gov.in/judis
W.A.No.3473 of 2024
Prayer:
Writ Appeal filed under Clause 15 of Letters Patent praying to set
aside the order dated 07.07.2023 made in W.P.No.24171 of 2015 and to
allow the above writ appeal.
For Appellants : Mr.P.Kumaresan,
Additional Advocate General
Assisted by
Mr.S.Yashwanth,
Additional Government Pleader
For Respondent – 1 : Mr.R.S.Anandan
JUDGMENT
(Judgment of the Court was delivered by C.SARAVANAN, J.) This intra Court Appeal is directed against the impugned order dated 07.07.2023 passed by the Writ Court in W.P.No.24171 of 2015.
2. By impugned order dated 07.07.2023, the Writ Court has allowed the writ petition filed by the 1st respondent/writ petitioner and quashed the order in G.O.(3D) No.03, Social Welfare and Nutritious Meal Programme Department dated 22.07.2015 passed by the 1st appellant. 2/24 https://www.mhc.tn.gov.in/judis W.A.No.3473 of 2024 2A. Operative portion of the impugned order reads as under:
“9. A perusal of the enquiry report dated 28.09.2000 revealed that the charge against the petitioner was that he assured to get job as Junior Assistant-cum-Typist in the office of Block Nutrition Officer, Thiruvannamalai and demanded and accepted a sum of Rs.7,000/- as illegal gratification from one A.Radhakrishnan, who is none other than the brother-in-law of the second delinquent. The said Radhakrishnan was examined as Witness No.37 before the enquiry. He deposed that he had never met the petitioner and he did not know the petitioner. Therefore, the enquiry officer declared him as hostile witness and he was cross examined by the second delinquent. His wife namely the sister of the second delinquent was also examined as Witness No.38. She also turned hostile. Therefore, both the Witness Nos.37 and 38 did not support the case of the department against the petitioner. Even then the enquiry officer found both the charges proved against him. Except the Witness Nos.37 and 38, no one had spoken about the role played by the petitioner while issuance of fake appointments to all the persons who had approached and gave money to the second delienquent. The department also failed to produce any material as against the petitioner before the enquiry officer in order to prove the charges. Therefore, no legal evidence had been let in, in order to prove the charges framed against the petitioner. All the witnesses had deposed that they had given money on the demand made by the second delinquent officer and received fake appointment order from the second delinquent. However, the enquiry officer only on presumption found that the petitioner-s charges were proved against him. In fact, the enquiry officer also concluded that though there was no direct evidence against the petitioner, without the assistants of the petitioner, the second delinquent could not have issued fake appointment order to the victims. Therefore, on presumption and assumption the petitioner cannot be punished that too with the capital punishment.
10. In this regard, the learned counsel for the petitioner relied upon the Judgment of the Hon-ble Supreme Court of India reported in 2009 2 SCC 570 in the case of Roop Singh Negi Vs Punjab National Bank and other, wherein the Hon-ble Supreme Court of India held that in a departmental proceeding, the enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. Therefore, the enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself 3/24 https://www.mhc.tn.gov.in/judis W.A.No.3473 of 2024 could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof.
11. In the case of hand also the investigating officer recorded the statement from the victims and framed charges against the petitioner.
However, no witness had deposed before the enquiry officer in order to substantiate the said statement.
12. The Hon-ble Supreme Court of India in the case of Roop Singh Negi Vs. Punjab National Bank and other reported in 2009 2 SCC 570 cited a Judgment of the Hon-ble Supreme Court of India reported in 2006 5 SCC 88 in the case of M.V.Bijlani VsUnion of India and held as follows:-
“ 25. ....Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi- judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.”
13. The Hon-ble Supreme Court of India also cited a Judgment reported in 2007 1SCC 566 in the case of Jasbir Singh vs. Punjab & Sind Bank & ors, wherein, it has held as follows:-
“12. In a case of this nature, therefore, the High Court should have applied its mind to the fact of the matter with reference to the materials brought on records. It failed to do so.”
14. Thus, it is clear that 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 4/24 https://www.mhc.tn.gov.in/judis W.A.No.3473 of 2024 well known, however high may be, can under no circumstances be held to be a substitute for legal proof.
15. Therefore, this Court is of the considered opinion that no charges proved before the enquiry officer against the petitioner.
Therefore, the enquiry report itself is vitiated and consequential order of removal from service on the strength of the said enquiry report is also vitiated and liable to be quashed.
16. Accordingly, the Government Order in G.O.(3D) No.3, Social Welfare & Nutritious Meal Programme Department, dated 22.07.2015 is hereby quashed.
17. However, now the petitioner had attained super annuation and as such the reinstatement of the petitioner into service does not arise. However, the petitioner is entitled for all the back wages, terminal benefits in pursuant there to and other attendant benefits if any. The first respondent is directed to pay all the benefits which are entitled by the petitioner, within a period of twelve weeks from the date of receipt of a copy of this order.
18. In the result, this writ petition stands allowed. Consequently, connected Miscellaneous petition is closed. There shall be no order as to costs.”
3. Assailing the impugned order passed by the Writ Court, the appellants have preferred the present writ appeal.
4. The brief facts of the case are that the 1st respondent/writ petitioner was working as Assistant in the office of the Director of Social Welfare, Chennai. While so, the Commissioner for Disciplinary Proceedings, Vellore had issued a Charge Memo dated 16.11.1998 to the 1st respondent/writ petitioner and framed the following charges against him: 5/24
https://www.mhc.tn.gov.in/judis W.A.No.3473 of 2024 “CHARGE:- 1 That actuated by corrupt motive and in abuse of your official position and authority, while you (A.O.1) were working as Assistant, Admin-3 Section, Office of the Director of Social Welfare, Chennai - 5 during the month of April 1993 you had demanded and accepted a sum of Rs.7000/- as illegal gratification at your office at Chennai from Thiru.A.Radhakrishnan (W1) H/o Tmt.Vatchala, No.19, Ramalinga Nagar III Street, Tiruvannamalai for the purpose of appointing Tmt. Vatchala (W3) as Junior Assistant cum - Typist in the Office of the Block Nutrition Officer, Tiruvannamalai on 10(a)(1) basis.
CHARGE:- 2
i) During the year 1993 while you (A.O.1) were working as Assistant, Office of the Director of Social Welfare, Chennai - 5 and while you (A.O.2) were working as Firka Surveyar, Taluk Office, Tiruvannamalai connived with each other and created bogus appointment order / proceedings No.E.11/10243/93(7), Dated 22.11.1993 of the Director of Social Welfare, Chennai containing false information to the effect that Thiru.N.L.Raja (W-25) S/o, Lakshmi Narashimma Iyyer, No.59, Ayyankulam Agraharam St., Tiruvannamalai and 14 others had been selected for appointment by the Director of Social Welfare, Chennai as Junior Assistant and Junior Assistant-cum-Typists in the various project Nutrition Offices in Tiruvannamalai and Dharmapuri Districts and you (A.O.1) and Sampathgiri (A.O.2) have demanded a sum of Rs.20,000/-
(Rupees Twenty thousand only) as illegal gratification from the said Thiru.N.L.Raja (W-25) and accepted Rs.8,500/- (Rupees Eight thousand and five hundred only) being the advance amount as illegal gratification from him (W 25) for the purpose of issuing the above said bogus appointment order appointing him in the above said post.
ii) During the year 1993, both of you (A.O.1) and (A.O.2) connived with each other and created bogus appointment order proceedings No.E11/10243/93(7), dated 22.11.1993 of the Director of Social Welfare, Chennai containing false information to the effect that Thiru M.Divakaran (W.26) S/o, Manimozhi No.47, Old Karkana Street, Tiruvannamalai and 14 others had been selected and appointed by the Director of Social Welfare, Chennai as Junior Assistants and Junior Assistant-cum-Typists in the project nutrition office in Tiruvannamalai and Dharmapuri Districts. During the course of transaction you (A.O.1 and A.O.2) have demanded a sum of Rs.20,000/- (Rupees Twenty Thousand only) as illegal gratification and accepted Rs.5,000/- (Rupees Five Thousand only) as advance amount of the above illegal gratification from Thiru.Divakaran 6/24 https://www.mhc.tn.gov.in/judis W.A.No.3473 of 2024 (W.26) for the purpose of issuing the above said bogus appointment order appointing the said Divakaran in the above said post.
iii) During the year 1993 both of you (A.O.1) and (A.O.2) connived with each other and created bogus appointment orders/proceedings No.E11/10243/93, Dated 18.08.1993, E11/10243/93(1) 29.09.1993 and E11/10243/93(7) dated 22.11.1993 of the Director of Social Welfare, Chennai and Proceedings B3/14283/1993, dated 11.10.1993 of the Collector of Tiruvannamalai, Sambuvarayar District containing false information to the effect that Thiru.S.Murali (W.28) S/o, Subbarayalu Naidu, Vazhathotta St, Tiruvannamalai and 23 others mentioned in these orders had been selected for appointment by the Director of Social Welfare, Chennai as Junior Assistants and Typists in the Project Nutrition Offices in Tiruvannamalai and Dharmapuri Districts and during the course of the same transaction you (A.O.1) and (A.O.2) have demanded a sum of Rs.25,000/- (Rupees Twenty five thousand only) as illegal gratification and accepted a sum of Rs.15,000/- (Rupees fifteen thousand only) as advance amount of the illegal gratification for the purpose of issuing the above said bogus proceedings / orders appointing him (S.Murali W-28) in the said post.
iv) During the year 1993 you (A.O.1) and (A.O.2) connived with each other and created bogus appointment order / proceedings No.E.11/10243/93(7), dated 22.11.1993 of the Director of Social Welfare, Chennai containing false information to the effect that Thiru N.Kuppusamy (W.29) S/o, Narayanasamy, No.15/2, New Karkana Street, Tiruvannamalai and 14 others mentioned in this appointment order have been selected for appointment by the Director of Social Welfare, Chennai as Junior Assistants and Typists in the Project Nutrition Offices in Tiruvannamalai and Dharmapuri Districts. During the course of the same transaction you (A.O.1 and A.I.2) have demanded and accepted a sum of Rs.10,000/- (Rupees Ten thousand only) as illegal gratification from the said Kuppusamy (W.29) for issuing the said bogus order to him appointing him in the post as aforesaid.
v) During the year 1993, A.O.2 Thiru.V.Sampath Giri created bogus appointment order / proceedings No E11/10243/93(3), Dated 22.10.1993 of the Director of Social Welfare, Chennai containing false information to the effect Selvi.S.Kalpana (W.32) D/o. Seethapathy, Kariamangalam Village, Chengam Taluk and another person by name Thiru R.Elangovan S/o, Rajagopalan, Aritharimangalam, Chengam Taluk had been selected for appointment as Junior Assistants in the Block Nutrition Office, Chengam. During the course of the same transaction you (A.O.2) had demanded and accepted a sum of Rs.10,000/- (Rupees Ten thousand only) as illegal gratification from Thiru. Seethapathy, (W.31) 7/24 https://www.mhc.tn.gov.in/judis W.A.No.3473 of 2024 S/o, Ramachandra Naidu, Kariyamangalam Village, Chengam Taluk for issuing the said bogus order to him appointing his daughter Selvi. S.Kalpana (W.32) as Junior Assistant as aforesaid.
vi) During the year 1993, both of you (A.O.1 and A.O.2) connived with each other and created bogus appointment orders / proceedings No.E11/10243/1993(3), dated 15.10.1993 and No.E.11/10243/1993 (7) dated 22.11.1993 of the Director of Social Welfare, Chennai containing false information to the effect that Tmt.K.Shenbagavalli, (W-22) W/o, Annamalai (W.23) No.100, Kariakalan Street, Tiruvannamalai and 16 others mentioned in these orders had been selected for appointment by the Director of Social Welfare, Chennai as Junior Assistants in the Project Nutrition Offices in Tiruvannamalai District and you (A.O.1 and A.O.2) have issued these bogus appointment orders to Tmt.K.Shenbagavalli (W.22) with intent to cheat her. Thereby you (A.O.1 and A.O.2) have conducted yourself most unbecoming of Government Servants and failed to maintain absolute integrity and devotion to duty and violated Rule 20 of the TNGS Conduct Rules, 1973?”
5. Thereafter, an enquiry was conducted by the Enquiry Officer (Commissioner, Tribunal for Disciplinary Proceedings, Vellore). Based on the enquiry report dated 28.09.2000, the 1st respondent/writ petitioner was removed from service vide order in G.O.(3D) No.03, Social Welfare and Nutritious Meal Programme Department dated 22.07.2015.
6. Aggrieved over the above order, 1st respondent/writ petitioner had filed the aforesaid writ petition for issuance of a writ of certiorarified 8/24 https://www.mhc.tn.gov.in/judis W.A.No.3473 of 2024 mandamus to call for the records of the order in G.O.(3D) No.03, Social Welfare and Nutritious Meal Programme Department dated 22.07.2015 passed by the 1st appellant and quash the same and also, to direct the respondents therein to grant all the consequential service benefits including the reinstatement of him in service with all monetary benefits and restoration of status-quo ante position existing prior to the order of removal from service.
7. The case of the 1st respondent/writ petitioner before the Writ Court was that there was no material to come to a conclusion that the 1st respondent/writ petitioner had indulged in preparing the bogus appointment orders for several persons and had attempted to collect amounts promising to get appointment to them in the office of the Director of Social Welfare, Chennai.
8. The Writ Court has concluded that there was no direct evidence to substantiate the involvement of the 1st respondent/writ petitioner in respect of the two charges framed against him. Therefore, the Writ Court has 9/24 https://www.mhc.tn.gov.in/judis W.A.No.3473 of 2024 quashed the G.O.(3D) No.03, Social Welfare and Nutritious Meal Programme Department dated 22.07.2015 passed by the 1st appellant and allowed the writ petition filed by the 1st respondent/writ petitioner.
9. The learned Additional Advocate General appearing for the appellants submitted that the impugned order passed by the Writ Court has been challenged by the appellants on the ground that there was a large scale involvement of 1st respondent/writ petitioner in the preparation of the bogus appointment orders was proved beyond reasonable doubt and therefore, the impugned order exonerating the 1st respondent/writ petitioner is liable to be set aside.
10. Defending the impugned order, the learned counsel appearing for the 1st respondent/writ petitioner submitted that the impugned order does not warrant any interference. He submitted that the impugned order of the Writ Court is well reasoned and therefore the writ appeal is liable to be dismissed.
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11. The learned counsel further submitted that the enquiry report of the Enquiry Officer was also without any basis as there are no direct evidence regarding the involvement of 1st respondent/writ petitioner in the preparation of the bogus appointment orders or having received any consideration and therefore, the Writ Court had rightly quashed the G.O.(3D) No.03, Social Welfare and Nutritious Meal Programme Department dated 22.07.2015.
12. On 27.11.2024, when this writ appeal was taken up for consideration, we passed the following order:
“We have heard Mr.P.Kumaresan, learned Additional Advocate General appearing for the appellants. On seeing the charges that had been originally framed against the delinquents, it discloses some shocking revelation, where many number of bogus appointment orders seems to have been generated from the office of the appellants, by thus, bogus appointments seems to have been made. Despite such an alleged scam took place in the appellants office, only two people including the first respondent / writ petitioner and another person, namely, Sampath Giri had been proceeded by way of disciplinary proceedings.
2. It is also brought to our notice by the learned Additional Advocate General that, an episode of such a magnitude where many number of bogus appointment orders have been issued, has not even been referred to the Police Department for the investigation. Though some vigilance enquiry had been conducted and some report seems to have been filed according to him, what is the further follow-up action taken pursuant to the report filed by the Vigilance Department also is not known, 11/24 https://www.mhc.tn.gov.in/judis W.A.No.3473 of 2024 therefore, in order to ascertain all these factors, let there be a positional note or report to be filed by the appellants Department represented by the Commissioner of Social Welfare, Chennai. Based on the report to be filed by the second appellant, further course of action would be decided. Till such time, no coercive steps shall be taken by the respondents.
3. Post the matter on 04.12.2024 ”
13. Pursuant to the aforesaid order, a Status Report dated 16.12.2024 has been filed by the Directorate of Vigilance and Anti-Corruption, wherein, particularly, in Paragraph Nos.6 to 10, it is stated as follows:
“6. It is respectfully submitted that in these Appointment Orders, the names and addresses of 22 persons are figuring. They include the names and addresses of 20 persons who were examined in this Detailed Enquiry and remaining two witnesses namely, Tr.N.Salikrishnan and Tr.Mohan were not available in their residential addresses. Of these 20 persons, 14 persons have categorically denied having any knowledge regarding the above said appointment orders/proceedings of the Director of Social Welfare, Madras and the Collector, Tiruvannamalai Sambuvarayar District. The remaining 6 persons have admitted having met A.O-1/A.O-2 who gave them the bogus Appointment Orders in question.
7. It is respectfully submitted that based on the evidence, the enquiry officer concluded the allegations taken up in the Detailed Enquiry is held as substantiated in the recast form of 7 allegations. Allegation No.1 relates to the demand and acceptance of illegal gratification on the part of A.O.1 in the matter of appointment of a Surveyor in the Social Welfare Department and Allegation Nos.2 to 7 mainly relate to the demand and acceptance of illegal gratification on the part of A.O.1 and A.O.2 by resorting to creation of bogus Appointment Orders misusing the names the Director of Social Welfare, Madras and the Collector, T.S.District.
8. It is respectfully submitted that all these appointment orders/proceedings are in tamil. The appointment order mentioned in Item No.5 typed above is in original. The other appointment 12/24 https://www.mhc.tn.gov.in/judis W.A.No.3473 of 2024 orders/proceedings mentioned Item Nos.1, 2, 3, 4, 6 and 7 are in the form of Xerox copies. Further, none of the persons mentioned in the bogus appointment orders had joined in any posts mentioned appointment orders.
9. It is respectfully submitted that the enquiry report on the Detailed Enquiry was forwarded to the Vigilance Commissioner through the Directorate of Vigilance and Anti-Corruption with a recommendation of the Tribunal Enquiry to appreciate and deal with the delinquencies of A.O.1 and A.O.2 in respect of allegations 1 to 5 and 7 and to accord concurrence to register a Regular Case against A.O.2 in respect of allegation – 6 of the offences u/s. 420, 467, 471 r/w. 467 IPC and 13(1)(d) r/w. 13(2) of PC Act, 1988.
10. It is respectfully submitted that based on the order of the Directorate of Vigilance and Anti-Corruption, Chennai a case in Vellore V & AC Crime No.5/1995 u/s.420, 467, 468 & 471 IPC r/w.467 IPC and Section 13(2) r/w. 13(1)(d) of Prevention of Corruption Act, 1988 was registered against Tr.V.S.Sampathgiri, Firka Surveyor, Taluk Office, Tiruvannamalai on 16.09.1995 by Tr.S.Vijayakumar, Formerly Inspector of Police, V & AC. Thereafter, investigation was done and after the completion of the investigation of the case, a final report was filed on 16.06.2000 against the accused for the offences punishable under Section 7 of the Prevention of Corruption 1988. The same was taken on file by the Hon'ble Chief Judicial Magistrate/Special Judge, Thiruvannamalai, on 16.06.2000 and issued Spl.C.C.No.1/2000. The case was ended in acquittal on 06.09.2010. A Criminal Appeal was filed before the Hon'ble High Court of Madras on 03.01.2011 and the Hon'ble High Court dismissed the petition on 11.12.2017.”
14. Today, we have heard the arguments advanced by the learned Additional Advocate General appearing for the appellants and the learned counsel for the 1st respondent/writ petitioner. We have perused the impugned order passed by the Writ Court, Status Report filed by the Directorate of Vigilance and Anti-Corruption and also, voluminous typed 13/24 https://www.mhc.tn.gov.in/judis W.A.No.3473 of 2024 set of papers filed by the appellants.
15. The Charge Memo was issued on 16.11.1998. Thereafter, an enquiry was conducted and the enquiry report was submitted on 28.09.2000. Thereafter, the 1st respondent/writ petitioner was allowed to be in service for a period of 15 years till 22.07.2015 and he was removed from service only on 22.07.2015.
16. The impugned order of the Writ Court exonerating the 1 st respondent/writ petitioner is based on the findings recorded by the Enquiry Officer (Commissioner, Tribunal for Disciplinary Proceedings, Vellore) in the enquiry report.
17. As far as Charge No.1 is concerned, the complaint was given by one Mr.A.Radhakrishnan H/o.Mrs.Vatsala who is none other than the sister of Accused Officer-2 viz., V.S.Sampath Giri who was working as Firka Surveyor.
18. During the course of enquiry, two witnesses viz., W.Nos.37 & 38 14/24 https://www.mhc.tn.gov.in/judis W.A.No.3473 of 2024 did not support the case of the Department against the 1 st respondent/writ petitioner.
19. The fact remains that as far as Charge No.1 is concerned, there was neither direct nor indirect evidence to substantiate that the 1 st respondent/writ petitioner had indeed demanded a sum of Rs.7,000/- as illegal gratification for appointment of Mrs.Vatsala, the sister of Accused Officer-2 (V.S.Sampath Giri) or had received the same.
20. From a perusal of G.O.(3D) No.03, Social Welfare and Nutritious Meal Programme Department dated 22.07.2015, it is evident that in the enquiry report, the Enquiry Officer (Commissioner, Tribunal for Disciplinary Proceedings, Vellore) has recorded that from the evidence deposed by the Departmental Witnesses viz., Accused Officers-20, 21, 22, 27 & 28 during the enquiry, it is clear that the Accused Officer-2 (V.S.Sampath Giri) only demanded bribe, received bribe and he did not return that bribe money and hence, the two charges framed against the Accused Officer-2 (V.S.Sampath Giri) were proved. 15/24 https://www.mhc.tn.gov.in/judis W.A.No.3473 of 2024
21. The Enquiry Officer has also recorded that though it is known that the Accused Officer-1 (1st respondent/writ petitioner) had not directly received the bribe, it is quite possible that the Accused Officer-1 (1st respondent/writ petitioner) colluded with the Accused Officer-2 (V.S.Sampath Giri) to commit the act of delinquency.
22. In our view, it would have been highly improbable that the Accused Officer-2 (V.S.Sampath Giri) to have independently master minded the alleged preparation of bogus appointment orders. The involvement of 1st respondent/writ petitioner cannot be altogether ruled out or denied as there are overwhelming evidence to indicate that it is the 1st respondent/writ petitioner would have been the point of contact in the commission of offence.
23. Accused Officer-2 (V.S.Sampath Giri) alone could not have prepared the bogus appointment orders without the help of Accused Officer- 16/24 https://www.mhc.tn.gov.in/judis W.A.No.3473 of 2024 1 (1st respondent/writ petitioner) and hence, the charge framed against the Accused Officer-1 (1st respondent/writ petitioner) can be said to have been proved.
24. We are also of the view that it would not have been possible, but, for involvement of other Senior Officials from the said Department, the 1st respondent/writ petitioner to collude with Accused Officer-2 (V.S.Sampath Giri) as the 1st respondent/writ petitioner was merely an Assistant in Admin- 3 Section to the Office of Social Welfare, Chennai.
25. Without the complicity of 1st respondent/writ petitioner and higher Officials, it would have been impossible for the Accused Officer-2 (V.S.Sampath Giri) to have prepared and distributed bogus appointment orders.
26. The witnesses who deposed the evidence merely have stated that they have paid amounts only to the Accused Officer-2 (V.S.Sampath Giri). Therefore, to the extent, the impugned order of the Writ Court interfering 17/24 https://www.mhc.tn.gov.in/judis W.A.No.3473 of 2024 with G.O.(3D) No.03, Social Welfare and Nutritious Meal Programme Department dated 22.07.2015 does not warrant any interference.
27. During the course of enquiry, one Dinakaran (P.W.21) in his testimony stated that Dhivakaran (P.W.20) i.e., his elder brother and he knew Accused Officer-2 (V.S.Sampath Giri) only. P.W.21 had also stated that he was searching a job for his elder brother Dhivakaran (P.W.20) and the Accused Officer-2 (V.S.Sampath Giri) told him that he would get a job for his brother Dhivakaran (P.W.20).
28. P.W.21 further stated that he has no direct contact with the 1st respondent/writ petitioner and that only the Accused Officer-2 (V.S.Sampath Giri) took him to the village of 1st respondent/writ petitioner and thereafter, the Accused Officer-2 (V.S.Sampath Giri) had demanded us to pay Rs.5,000/- for getting appointment order and paid for the same to later.
29. The testimony of Dinakaran (P.W.21) clearly thus shows that he had no occasion to interact with the 1st respondent/writ petitioner and that 18/24 https://www.mhc.tn.gov.in/judis W.A.No.3473 of 2024 only, the Accused Officer-2 (V.S.Sampath Giri) only had collected a sum of Rs.5,000/- as bribe from him.
30. However, the fact remains that there is no direct or indirect evidence against the 1st respondent/writ petitioner, the Enquiry Officer (Commissioner, Tribunal for Disciplinary Proceedings, Vellore) to arrive at a finding that Charges framed against the 1st respondent/writ petitioner is proved.
31. Disciplinary proceedings are not governed by the strict rules of evidences. They are governed by the principle of preponderance of probabilities. We are of the view that the involvement of 1st respondent/writ petitioner in the charges framed against him cannot be entirely ruled out as he appears to be the only person who has been charge sheeted.
32. May be, few others were also involved in the commission of offence, but, were allowed to scot free. It is unimaginable as to how large number of bogus appointment orders could have been prepared and 19/24 https://www.mhc.tn.gov.in/judis W.A.No.3473 of 2024 distributed promising employment.
33. However, there are mitigating circumstances which work in favour of the 1st respondent/writ petitioner. Having extracted work from the 1st respondent/writ petitioner for over a period of 17 years i.e., from 16.11.1998 (date of Charge Memo) to 22.07.2015 (date of G.O.(3D) No.03, Social Welfare and Nutritious Meal Programme Department) and 15 years from the date of Enquiry Report dated 28.09.2000, it would be too harsh to remove the 1st respondent/writ petitioner from service.
34. Therefore, as far as Charge No.2 is concerned, we are of the view that without the involvement of 1st respondent/writ petitioner and other higher Officials, question of preparation of 22 bogus appointment orders by the Director of Social Welfare, Chennai to different persons would not have been possible. However, there is no direct evidence to substantiate the same.
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35. Fact also remains that the 1st respondent/writ petitioner who was prosecuted criminally was also acquitted by the Criminal Court. Therefore, we are of the view that the impugned order of the Writ Court does not warrant complete interference.
36. Since the complicity of 1st respondent/writ petitioner in the preparation of bogus appointment orders along with Accused Officer-2 (V.S.Sampath Giri) and other officials of the Department cannot be entirely ruled out, we cannot close our eyes. Hence, we are inclined to modify the order of the Writ Court by ordering compulsory retirement of the 1st respondent/writ petitioner from service w.e.f. 22.07.2015 as the alleged offence is said to have been taken place during the year 1993.
37. Accordingly, the impugned order dated 07.07.2023 passed in W.P.No.24171 of 2015 by the Writ Court is modified by ordering compulsory retirement of the 1st respondent/writ petitioner from service w.e.f. 22.07.2015.
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38. The appellants are directed to settle the terminal benefits and other retirement benefits of the 1st respondent/writ petitioner in accordance with law, within a period of eight weeks from the date of receipt of a copy of this judgment. It is also made clear that there shall be no salary for the period during which the 1st respondent/writ petitioner was not in service.
39. In the result, this Writ Appeal is partly allowed with the above observations. No costs. Consequently, connected miscellaneous petition is closed.
(R.S.K., J.) (C.S.N., J.)
16.12.2024
mrr
Index : Yes/No
Neutral Citation: Yes/No
Speaking Order (or) Non-Speaking Order
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W.A.No.3473 of 2024
To
1.The Principal Secretary to Government,
Social Welfare and Nutritious Meal Programme
(SW 1) Department,
Secretariat, Chennai – 600 009.
2.The Commissioner of Social Welfare,
Chennai – 600 032.
3.The District cum Mission Director,
Integrated Child Development Services,
Chennai – 600 113.
4.The District Social Welfare Officer,
Kancheepuram.
5.The Secretary,
Tamil Nadu Public Service Commission,
Chennai – 600 003.
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W.A.No.3473 of 2024
R.SURESH KUMAR, J.
and
C.SARAVANAN, J.
mrr
W.A.No.3473 of 2024
16.12.2024
24/24
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