Madras High Court
V.Thiruvengadam vs The Special Commissioner And on 28 April, 2011
Author: V.Dhanapalan
Bench: V.Dhanapalan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 28-04-2011 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN WRIT PETITION No.39017 OF 2004 V.Thiruvengadam ... Petitioner -vs- The Special Commissioner and Commissioner of Revenue Administration, Chennai-5. ... Respondent For petitioner :Mr.V.Raghavachari For respondent : Mr.S.Gopinathan, Addl.Govt.Pleader. Petition under Article 226 of the Constitution of India. O R D E R
This Writ Petition has been filed praying for issuance of a writ of certiorari to call for the records of the first respondent in proceedings Rc.SER.V(2)/49556/99, dated 22.09.2000, and quash the same.
2. Facts of the case are as under :
While the petitioner was working as Village Administrative Officer, Sengunam Village, Polur Taluk, Tiruvannamalai District, the Tribunal for disciplinary proceedings, Vellore, had framed charges against the petitioner in proceedings No.A2/1/99, dated 15.9.1999 and the charge memo was served on the petitioner on 24.09.1999. After receiving the said charge memo, the petitioner submitted his written statement before the authority on 29.9.2000. Thereafter, the enquiry was conducted by the Disciplinary Proceedings Commissioner, Vellore. After receiving the same, the Commissioner has submitted his report to the authority for further action. In the enquiry report, the Commissioner has held that the first charge is proved and the second charge is partly proved. The first respondent has issued a memo along with the enquiry report, calling for explanation with regard to the enquiry report. The petitioner submitted his further explanation and thereafter the respondent has given his conclusion that both the charges were proved and imposed punishment of removal from service vide Rc.SER.V(2)/49556/99, dated 22.09.2000. The petitioner approached the Tamil Nadu State Administrative Tribunal, Chennai, by way of application O.A.No.404 of 2001 to set aside the order of removal from service passed by the respondent. As the Tribunal has become defunct, the petitioner is before this Court by way of this Writ Petition.
3. Respondent has filed a counter, stating as follows :
3.1. While the petitioner was working as Village Administrative Officer, Sengunam Village, Polur Taluk, Tiruvannamalai District, he had committed grave misconduct and misdemeanour and failed to maintain absolute integrity and devotion to duty as a Government servant and demanded and accepted illegal gratification from one Seethalakshmi alias Sethammal and Tmt.Muniammal for arranging to get them Distress Relief Fund. The petitioner, in abuse of his official position and authority, had demanded and accepted the illegal gratification of Rs.2400/- and thereby failed to maintain absolute integrity and devotion to duty and contravened Rule 20 of the Tamil Nadu Government Servants Conduct Rules,1973.
3.2. The charge memo was served on the petitioner on 25.10.1999. The prosecution has examined six witnesses and marked four exhibits to prove the charges against the writ petitioner. The defence has neither examined any witness nor marked any exhibit. The counsel for the accused officer/writ petitioner has submitted written arguments before the Tribunal for Disciplinary Proceedings, Vellore, on 19.1.2000. The oral arguments of both sides were heard on 20.1.2010 and the enquiry was concluded by the Tribunal. After considering all the documentary evidences, written and oral arguments of both sides, the Commissioner for Disciplinary Proceedings, Vellore, has given his findings in Case No.1/99, holding charge No.1 as proved fully and charge No.2 as partly proved. Since the respondent is the head of the Department and is competent to pass final orders on the findings of the Tribunal, the same was transmitted to the respondent for passing final orders under the provisions of Rule 10 (b) of Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules,1955.
3.3. After examining the findings of the Tribunal in Case No.1/99, it has been decided to give the writ petitioner reasonable opportunity to put forth his further representations, if any, on the above findings, as contemplated under the said rules. The petitioner has received a copy of the findings of the Tribunal on 6.7.2000 communicated in respondent's memo dated 5.6.2000 and submitted his further explanation dated 3.8.2000 within the stipulated time of 30 days. The respondent has examined carefully and independently the further explanations submitted by the writ petitioner with that of the findings of the Tribunal and connected records placed before the respondent. It was seen both from the deposition of Seethammal and her cross-examination that she gave Rs.1300/- to the writ petitioner in two instalments. Though she did not remember the exact date on which she gave the money and though there was no eye witness, she emphasized that she gave money to the petitioner. The prosecution witnesses 5 and 6 deposed that they were informed by the said Seethammal of the demand and acceptance of money by the writ petitioner. Further, the distress relief scheme application of Seethammal was received on 15.2.1995, but not disposed of promptly. On 19.3.1996, an endorsement was made in the register that the application was rejected. But the connected record has not been made available. It has therefore been considered that there should be every possibility that the writ petitioner would have demanded and accepted illegal gratification and that obviously the writ petitioner, after getting bribe might have destroyed or misplaced the application. The reliability of the evidence of Seethammal questioned by the writ petitioner, particularly when she was a regular prohibition offender was also not accepted because being a regular prohibition offender does not go against the complainant and was irrelevant. Hence, the respondent has accepted the findings of the enquiry officer and Tribunal for Disciplinary Proceedings, Vellore, and held the charge of acceptance of illegal gratification of Rs.1300 in two instalments by the writ petitioner as proved.
3.4. Regarding the other charge, Muniammal deposed before the Tribunal that she gave Rs.100/- to the writ petitioner at the time of getting distress relief amount. The writ petitioner had not cross examined her on the said point. Hence, his explanation was not accepted and the respondent held the said charge as also proved. Obviously, the petitioner was found to be in the habit of demanding illegal gratifications for doing his legitimate duties which is a serious offence. Further, his conduct was also totally unbecoming of a Government servant and it rendered him unfit for being retained in Government service. No good to public would accrue through retention of such an employee in service of the State. Inasmuch as the charges are proved against the writ petitioner involving corruption and moral turpitude and called for deterrent punishment, the respondent ordered his removal from service and any lesser punishment would set a bad precedent and would not be in public interest. The writ petitioner was also provided with an opportunity of filing an appeal before the Secretary to Government, Revenue Department, Chennai, within two months from the date of receipt of the above punishment orders. The writ petitioner has received the order of removal from service on 17.11.2000 and without availing the opportunity of appeal, has approached the Tribunal in O.A.No.404/2001. A reply affidavit has been filed by the respondent before the Tribunal. The Original Application is pending before the Tribunal due to non-functioning of the same. Hence, the writ petitioner has filed this Writ Petition with a prayer to set aside the order of removal from service, which is not maintainable in the eye of law.
4. Learned counsel for the petitioner would strenuously contend that the charges framed against the petitioner are not proved fully but partly proved and when the disciplinary authority disagrees with the findings of the enquiry officer, it is mandatory on the part of the authority to give an opportunity of hearing to the petitioner. He would further contend that non-examination of the vital witness as well as the non-cross-examination of Muniammal is fatal to the prosecution case and this aspect has not been gone into by the disciplinary authority, particularly when it was insisted upon. He would also argue that there must be a conclusive proof to come to the conclusion and it cannot be on the preponderance of probabilities and conjectures and surmises. Lastly, the learned counsel would assail the impugned order on the ground of violation of principles of natural justice and that the punishment is harsh and excessive and disproportionate to the charges levelled against the petitioner. In support of his contentions, the learned counsel has relied upon the following decisions :
(i) Union of India v. H.C. Goel, (1964) 4 SCR 718 :
"27. Now, in this state of the evidence, how can it be said that the respondent even attempted to offer a bribe to Mr Rajagopalan? Mr Rajagopalan makes a definite statement that the respondent did not offer him a bribe. He merely refers to the fact that the respondent took out a paper from his wallet and the said paper appeared to him like a hundred rupee note double folded. Undoubtedly, Mr Rajagopalan suspected the respondents conduct, and so, made a report immediately. But the suspicion entertained by Mr Rajagopalan cannot, in law, be treated as evidence against the respondent even though there is no doubt that Mr Rajagopalan is a straight-forward and an honest officer. Though we fully appreciate the anxiety of the appellant to root out corruption from public service, we cannot ignore the fact that in carrying out the said purpose, mere suspicion should not be allowed to take the place of proof even in domestic enquiries. It may be that the technical rules which govern criminal trials in courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquires held under the statutory rules. We have very carefully considered the evidence led in the present enquiry and borne in mind the plea made by the learned Attorney-General, but we are unable to hold that on the record, there is any evidence which can sustain the finding of the appellant that charge No. 3 has been proved against the respondent. It is in this connection and only incidentally that it may be relevant to add that the UPSC considered the matter twice and came to the firm decision that the main charge against the respondent had not been established.
28. The result is, though the appellant succeeds on the principal point of law raised in the appeal, the appeal fails, because, on the merits, we hold that no case had been made out for punishing the respondent. The appellant to pay the costs of Respondent."
(2) Shri Gian Singh v. State of Himachal Pradesh, 1974 (2) SLR 226:
"4.... Apparently, the Enquiry Officer was of the belief that there was a possibility of the petitioner being guilty of dereliction of duty. There is no definite finding that the petitioner was in fact guilty of dereliction of duty. It is the finding with which the Commissioner of Transport agreed. The find is weak and inconclusive; it cannot serve in law as the bias for taking action against the petitioner.
5.When it is proposed to take action against a Government servant for dereliction of duty, the penalty for which is dismissal or removal, it is the utmost importance that the mind of the Enquiry Officer and the disciplinary authority should be applied with scrupulous regard to the material on the record and that it should be followed by a clear and definite finding. A halting and inconclusive finding serves no purpose at all. It is meaningless."
(iii) Anil Kumar v. Presiding Officer, (1985) 3 SCC 378 :
"5. We have extracted the charges framed against the appellant. We have also pointed out in clear terms the report of the enquiry officer. It is well-settled that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the enquiry officer has a duty to act judicially. The enquiry officer did not apply his mind to the evidence. Save setting out the names of the witnesses, he did not discuss the evidence. He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence produced by the appellant did not appeal to him or was considered not creditworthy. He did not permit a peep into his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant. An enquiry report in a quasi-judicial enquiry must show the reasons for the conclusion. It cannot be an ipse dixit of the enquiry officer. It has to be a speaking order in the sense that the conclusion is supported by reasons. This is too well settled to be supported by a precedent. In Madhya Pradesh Industries Ltd. v. Union of India1 this Court observed that a speaking order will at best be a reasonable and at its worst be at least a plausible one. The public should not be deprived of this only safeguard. Similarly in Mahabir Prasad Santosh Kumar v. Slate of U.P.2 this Court reiterated that satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appealed to the authority. It should all the more be so where the quasi-judicial enquiry may result in deprivation of livelihood or attach a stigma to the character. In this case the enquiry report is an order sheet which merely produces the stage through which the enquiry passed. It clearly disclosed a total non-application of mind and it is this report on which the General Manager acted in terminating the service of the appellant. There could not have been a more gross case of non-application of mind and it is such an enquiry which has found favour with the Labour Court and the High Court.
6. Where a disciplinary enquiry affects the livelihood and is likely to cast a stigma and it has to be held in accordance with the principles of natural justice, the minimum expectation is that the report must be a reasoned one. The Court then may not enter into the adequacy or sufficiency of evidence. But where the evidence is annexed to an order sheet and no corelation is established between the two showing application of mind, we are constrained to observe that it is not an enquiry report at all. Therefore, there was no enquiry in this case worth the name and the order of termination based on such proceeding disclosing non-application of mind would be unsustainable.
7. Once we are satisfied that the order of termination of service is unsustainable, we decline to go into the larger question raised on behalf of the appellant that even though Section 11-A was introduced in the statute after the date of the termination of the appellant, yet when the matter was before the Labour Court, it was obligatory upon the Labour Court to consider whether the punishment was disproportionate to the gravity of the misconduct charged, even though we find considerable substance in this contention."
(iv) Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant,(2001) 1 SCC 182 :
"8. It is on this factual backdrop that the matter was taken before the High Court under Article 226 of the Constitution wherein upon due consideration of the factual matrix, the order of dismissal was set aside on the ground of being prejudicial, thus resulting in total miscarriage of justice and hence the appeal before this Court by the grant of special leave.
19. While it is true that in a departmental proceeding, the disciplinary authority is the sole judge of facts and the High Court may not interfere with the factual findings but the availability of judicial review even in the case of departmental proceeding cannot be doubted. Judicial review of administrative action is feasible and the same has its application to its fullest extent in even departmental proceedings where it is found that the recorded findings are based on no evidence or the findings are totally perverse or legally untenable. The adequacy or inadequacy of evidence is not permitted but in the event of there being a finding which otherwise shocks the judicial conscience of the court, it is a well-nigh impossibility to decry availability of judicial review at the instance of an affected person. The observations as above, however, do find some support from the decision of this Court in the case of Apparel Export Promotion Council v. A.K. Chopra7.
20. It is a fundamental requirement of law that the doctrine of natural justice be complied with and the same has, as a matter of fact, turned out to be an integral part of administrative jurisprudence of this country. The judicial process itself embraces a fair and reasonable opportunity to defend though, however, we may hasten to add that the same is dependent upon the facts and circumstances of each individual case. The facts in the matter under consideration is singularly singular. The entire chain of events smacks of some personal clash and adaptation of a method unknown to law in hottest of haste; this is however, apart from the issue of bias which would be presently dealt with hereinafter. It is on this context, the observations of this Court in the case of Sayeedur Rehman v. State of Bihar8 seem to be rather apposite. This Court observed: (SCC p.338, para 11) The omission of express requirement of fair hearing in the rules or other source of power claimed for reconsidering the order, dated 22-4-1960, is supplied by the rule of justice which is considered as an integral part of our judicial process which also governs quasi-judicial authorities when deciding controversial points affecting rights of parties.
(v) Commr. of Police v. Syed Hussain,(2006) 3 SCC 173 :
"10. It is one thing to say that order passed by the statutory authority is wholly arbitrary and thus violative of Article 14 of the Constitution and thus liable to be set aside, but it is another thing to say that the discretionary jurisdiction exercised by such authority should not ordinarily be interfered with by a superior court while exercising its power of judicial review unless one or the other ground upon which and on the basis whereof the power of judicial review can be exercised, exists.
13. It is, therefore, beyond any doubt or dispute that the doctrine of proportionality has to be applied in appropriate case as the depth of judicial review will depend on the facts and circumstances of each case."
(vi) Moni Shankar v. Union of India,(2008) 3 SCC 484 :
"17. The departmental proceeding is a quasi-judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the Department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely, preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality. (See State of U.P. v. Sheo Shanker Lal Srivastava2 and Coimbatore District Central Coop. Bank v. Employees Assn.3)
19. We have been taken through the evidence of Shri S.B. Singh by Dr. Padia. Significantly the examination-in-chief was conducted by the enquiry officer himself. As the proceeding was for imposition of a major penalty, why the presenting officer, who must have been engaged by the Department, did not examine the witness is beyond any comprehension. Even the minimum safeguard in regard to the manner in which examination-in-chief was conducted has not been preserved. The questions posed to him were leading questions. It is interesting to note that in answer to a question as to whether he had asked the appellant to return Rs.5, he not only answered in the negative but according to him the said statement was made by him as instructed by the Vigilance Inspector. He although proved Exhibits P-1 and P-2 which were written in English language but also stated that he did not know what had been written therein. Strangely enough, the enquiry officer started re-examining him. Even in the re-examination he accepted that he could not read and write English.
22. The High Court, on the other hand, as indicated hereinbefore, proceeded to opine that the Tribunal committed a serious illegality in entering into the realm of evidence. It is permissible in law to look to the evidence for the purpose of ascertaining as to whether the statutory requirement had been complied with or not.
23. ........ While reappreciation of evidence is not within the domain of the Tribunal, an absurd situation emanating from the statement of a witness can certainly be taken note of. The manner in which the trap was laid, witnessed by the Head Constable and the legality of enquiry proceeding were part of decision-making process and, thus, the Tribunal was entitled to consider the same. It was only for the aforementioned purpose that Paras 704 and 705 of the Manual have been invoked. It may be that the said instructions were for compliance of the Vigilance Department, but substantial compliance therewith was necessary, even if the same were not imperative in character. A departmental instruction cannot totally be ignored. The Tribunal was entitled to take the same into consideration along with other materials brought on record for the purpose of arriving at a decision as to whether normal rules of natural justice had been complied with or not.
30. For the aforementioned purpose, the manner in which the enquiry proceeding was conducted was required to be taken into consideration by the High Court. The trap was not conducted in terms of the Manual; the enquiry officer acted as a prosecutor and not as an independent quasi-judicial authority; he did not comply with Rule 9(21) of the Rules, evidently, therefore, it was not a case where the order of the Tribunal warranted interference at the hands of the High Court.
(vii) Union of India v. Prakash Kumar Tandon, (2009) 2 SCC 541 :
"15. The principles of natural justice demand that an application for summoning a witness by the delinquent officer should be considered by the enquiry officer. It was obligatory on the part of the enquiry officer to pass an order in the said application. He could not refuse to consider the same. It is not for the Railway Administration to contend that it is for them to consider as to whether any witness should be examined by it or not. It was for the enquiry officer to take a decision thereupon. A disciplinary proceeding must be fairly conducted. An enquiry officer is a quasi-judicial authority. He, therefore, must perform his functions fairly and reasonably which is even otherwise the requirement of the principles of natural justice."
(viii) Roop Singh Negi v. Punjab National Bank,(2009) 2 SCC 570 :
"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 selfsame 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."
(ix) State of U.P. v. Saroj Kumar Sinha,(2010) 2 SCC 772 :
"27. A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge.
28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
29. Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee.
30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.
39. The proposition of law that a government employee facing a departmental enquiry is entitled to all the relevant statements, documents and other materials to enable him to have a reasonable opportunity to defend himself in the departmental enquiry against the charges is too well established to need any further reiteration. Nevertheless given the facts of this case we may re-emphasise the law as stated by this Court in State of Punjab v. Bhagat Ram4: (SCC p.156, paras 6-8)
6. The State contended that the respondent was not entitled to get copies of statements. The reasoning of the State was that the respondent was given the opportunity to cross-examine the witnesses and during the cross-examination the respondent would have the opportunity of confronting the witnesses with the statements. It is contended that the synopsis was adequate to acquaint the respondent with the gist of the evidence.
7. The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the government servant is afforded a reasonable opportunity to defend himself against charges on which inquiry is held. The government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him. The object of supplying statements is that the government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the government servant. Unless the statements are given to the government servant he will not be able to have an effective and useful cross-examination."
(x) Union of India v. Gyan Chand Chattar, (2009) 12 SCC 78 :
"21. Such a serious charge of corruption requires to be proved to the hilt as it brings civil and criminal consequences upon the employee concerned. He would be liable to be prosecuted and would also be liable to suffer severest penalty awardable in such cases. Therefore, such a grave charge of quasi-criminal nature was required to be proved beyond any shadow of doubt and to the hilt. It cannot be proved on mere probabilities.
31. In Municipal Committee, Bahadurgarh v. Krishnan Behari1 this Court held as under: (SCC p.715, para 4) 4.In a case of such natureindeed, in cases involving corruptionthere cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant. Similar view has been reiterated by this Court in Ruston & Hornsby (I) Ltd. v. T.B. Kadam2, U.P. SRTC v. Basudeo Chaudhary3, Janatha Bazar (South Kanara Central Coop. Wholesale Stores Ltd. v. Sahakari Noukarara Sangha4, Karnataka SRTC v. B.S. Hullikatti5, Rajasthan SRTC v. Ghanshyam Sharma6, NEKRTC v. H. Amaresh7 and U.P. SRTC v. Vinod Kumar8, wherein it has been held that the punishment should always be proportionate to gravity of the misconduct. However, in a case of corruption, the only punishment is dismissal from service. Therefore, the charge of corruption must always be dealt with keeping in mind that it has both civil and criminal consequences.
34. In Sawai Singh v. State of Rajasthan11 this Court held that even in a domestic enquiry, the charge must be clear, definite and specific as it would be difficult for any delinquent to meet the vague charges. Evidence adduced should not be perfunctory even if the delinquent does not take the defence or make a protest against that the charges are vague, that does not save the enquiry from being vitiated for the reason that there must be fair play in action, particularly, in respect of an order involving adverse or penal consequences.
35. In view of the above, law can be summarised that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct."
(xi) High Court of Judicature at Bombay v. Shashikant S. Patil, (2000) 1 SCC 416 :
"16. The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/ disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution."
(xii) Charanjit Lamba v. Army Southern Command, (2010) 11 SCC 314 :
"12. The doctrine of proportionality which Lord Diplock saw as a future possibility is now a well-recognised ground on which a writ court can interfere with the order of punishment imposed upon an employee if the same is so outrageously disproportionate to the nature of misconduct that it shocks the conscience of the court. We may at this stage briefly refer to the decisions of this Court which have over the years applied the doctrine of proportionality to specific fact situations.
19. That the punishment imposed upon a delinquent should be commensurate to the nature and generally of the misconduct, is not only a requirement of fairness, objectivity, and non-discriminatory treatment which even those form quality (sic) of a misdemeanour are entitled to claim but the same is recognised as being a part of Article 14 of the Constitution. It is also evident from the long line of decisions referred to above that the courts in India have recognised the doctrine of proportionality as one of the ground for judicial review. Having said that we need to remember that the quantum of punishment in disciplinary matters is something that rests primarily with the disciplinary authority. The jurisdiction of a writ court or the Administrative Tribunal for that matter is limited to finding out whether the punishment is so outrageously disproportionate as to be suggestive of lack of good faith.
20. What is clear is that while judicially reviewing an order of punishment imposed upon a delinquent employee the writ court would not assume the role of an appellate authority. It would not impose a lesser punishment merely because it considers the same to be more reasonable than what the disciplinary authority has imposed. It is only in cases where the punishment is so disproportionate to the gravity of charge that no reasonable person placed in the position of the disciplinary authority could have imposed such a punishment that a writ court may step in to interfere with the same."
(xiii) Roop Singh Negi v. Punjab National Bank,(2009) 2 SCC 570 :
"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 selfsame 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."
5. On the other hand, the learned Additional Government Pleader would contend that there is no specific request by the petitioner during the enquiry for specific cross-examination of a particular witness and at this stage it cannot be permissible to argue on the point of non-examination of a witness particularly when the receipt of Rs.100/- is admitted by the petitioner. He would further contend that the punishment imposed by the respondent is not harsh and excessive and on considering the entire facts and circumstances, as there was every probability that the petitioner would have demanded and accepted the illegal gratification and the charges have been proved, the respondent has come to the conclusion to impose the punishment of removal from service, after following the procedure contemplated and hence there is no violation of principles of natural justice.
6. I have heard the learned counsel on either side and also gone through the records coupled with the authorities cited.
7. On going through the records, what transpires is that while the petitioner was working as Village Administrative Officer, Sengunam Village, Polur Taluk, Tiruvannamalai District, the Tribunal for Disciplinary Proceedings, Vellore, had framed charges against the petitioner in proceedings No.A2/1/99, dated 15.9.1999 and the charge memo was served on him on 24.09.1999. The charges are as under:
"That while he was working as Village Administrative Officer, Sengunam Village, Polur Taluk, Tiruvannamalai District, he had committed grave misconduct and misdemeanour and failed to maintain absolute integrity and devotion to duty as Government Servant and demanded and accepted illegal gratification from one Seethalakshmi, alias Seethammal and Tmt.Muniammal for arranging to get them Distress Relief Fund as mentioned below :
Charge 1 : On a day in 27th January,1995, Tmt.Seethammal, alias Seethalakshmi of Sengunam Village, Polur Taluk, Thiruvannamalai district met him at his residence and requested to get her the Distress Relief Fund of Rs.5,000/-. He had demanded an illegal gratification of Rs.1,300/- to be paid to him for arranging to get her the Distress Relief Fund. The Accused Officer accepted an illegal gratification of Rs.1,300/- in two instalments of Rs.600/- on 27.1.1995 at about 1.00 P.M.and Rs.700/- fifteen days later at about 7.00 A.M.at his residence from the said Tmt.Seethalakshmi @ Seethammal.
Charge 2 : On a day in the first week of Tamil month Maasi in 1995 Tmt.Muniammal of Sengunam Village, Polur Taluk, met him at his residence and requested to get her Distress Relief Fund. He had demanded an illegal gratification of Rs.1000/- to be paid to him for arranging to get her Distress Relief Fund of Rs.5000/-. He accepted an illegal gratification of Rs.700/- and demanded and accepted Rs.400/- on 26.3.1996 at the time of disbursement of Distress Relief Fund of Rs.5000/- from the said Tmt.Muniammal.
That he, in abuse of official position and authority, had demanded accepted the illegal gratifications of Rs.2,400/- and thereby failed to maintain absolute integrity and devotion to duty and contravened Rule 20 of the Tamil Nadu Government Servants Conduct Rules,1973."
8. The Charge Memo was served on the petitioner on 25.10.1999. The counsel for the petitioner submitted written arguments before the Tribunal on 19.01.2000. The oral arguments of both sides were heard on 20.01.2000 and thereafter the enquiry was completed by the Tribunal. After hearing the arguments of both sides and after analysing both oral and documentary evidences, the Tribunal has given its findings, holding that Charge 1 has been proved and Charge 2 as partly proved. Since the respondent is the head of the Department and is competent to pass final orders on the findings of the Tribunal, the same was transmitted to the respondent for passing final orders under the provisions of Rule 10 (b) of Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules,1955.
Thereafter, the first respondent has passed final orders, which are impugned herein, holding that the charges proved against the petitioner involve moral turpitude and call for deterrent punshment and ordering removal of the petitioner from service. Paras 10 and 11 of the impugned order read thus :
"10. It is seen both from the deposition of Seethammal and her cross-examination that she gave Rs.1300/- to the Accused Officer in two instalments. Though she did not remember the exact date on which she gave the money and though there was no eye witness, she emphasized that she gave money to the Accused Officer. P.W.5 and P.W.6 deposed that they were informed by Tmt.Seethammal of the demand and acceptance of money by the Accused Officer. The Accused Officer has questioned the reliability of her evidence, particularly when she is a regular prohibition offender. This cannot be considered as a relevant argument. The D.R.S. application of Seethammal was received on 15.2.1995, but not disposed of promptly. On 19.3.1996, an endorsement was made in the register that the application was rejected. But the connected record has not been made available. There is, therefore, every probability that the Accused Officer would have demanded and accepted illegal gratification. I accept the findings of the Enquiry Officer and hold the charge of acceptance of illegal gratification of Rs.1,300/- in two instalments as proved. Obviously, the accused officer, after getting bribe might have destroyed or misplaced the application. Being a regular prohibition offender does not go against the complainant and is irrelevant. The explanation of the Accused Officer to charge (a) is, therefore, not acceptable."
"11. Regarding Charge (b), in her deposition before the Tribunal for Disciplinary Proceedings, Tmt.Muniammal has stated that she gave Rs.100/- to the Accused Officer at the time of getting relief fund. The Accused Officer has not cross examined her on this point. The explanation of the Accused Officer is not acceptable. I hold this charge against the Accused Officer also as proved. Obviously, he is in the habit of demanding illegal gratification for doing his legitimate duties which is a serious offence. Further his conduct is totally unbecoming of a Government Servant. He it totally unfit for being retained in Government Service. No good to public would accrue through retention of such an employee in Government service."
9. From the above conclusions of the respondent, it is not specific on which date Seethammal gave money to the petitioner. Also, there is no eye witness to the incident. It is also evident therefrom that the petitioner has questioned the reliability of the evidence of Seethammal, stating that she is a regular prohibition offender. It is further stated therein that there is every possibility that the Accused Officer would have demanded and accepted illegal gratification. Therefore, it can very well be stated that the impugned order has been passed by the respondent based on probabilities, coupled with surmises and conjectures. It is also to be stated that while the enquiry officer held the second charge as partly proved, the respondent has disagreed with the said finding and held that the said charge is fully proved. The non-examination of the vital witness, namely, Rajendran, the then M.L.A., as well as the non-cross-examination of Muniammal is fatal to the prosecution case and this aspect has not been gone into by the disciplinary authority before passing the impugned order.
10. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved.
11. By virtue of Article 311(2) of the Constitution of India, the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee. Further, when a departmental enquiry is conducted against the government servant, it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.
12. The proposition of law that a government employee facing a departmental enquiry is entitled to all the relevant statements, documents and other materials to enable him to have a reasonable opportunity to defend himself in the departmental enquiry against the charges is too well established to need any further reiteration. The department should ensure that the delinquent officer is given the opportunity to cross-examine the witnesses and during the cross-examination the delinquent had the opportunity of confronting the witnesses. The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the government servant is afforded a reasonable opportunity to defend himself against charges on which inquiry is held. The government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him. This is the law laid down by the Supreme Court in State of U.P. v. Saroj Kumar Sinha, referred to above.
13. The Supreme Court, in Union of India v. Gyan Chand Chattar, cited above, has held that serious charge of corruption requires to be proved to the hilt, as it brings civil and criminal consequences upon the employee concerned. He would be liable to be prosecuted and would also be liable to suffer severest penalty awardable in such cases. Therefore, such a grave charge of quasi-criminal nature is required to be proved beyond any shadow of doubt and to the hilt. It cannot be proved on mere probabilities.
14. Even in a domestic enquiry, the charge must be clear, definite and specific, as it would be difficult for any delinquent to meet the vague charges. Evidence adduced should not be perfunctory even if the delinquent does not take the defence or make a protest against that the charges are vague, that does not save the enquiry from being vitiated for the reason that there must be fair play in action, particularly, in respect of an order involving adverse or penal consequences.
15. An enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct.
16. The doctrine of proportionality as a future possibility is now a well-recognised ground on which a writ court can interfere with the order of punishment imposed upon an employee if the same is so outrageously disproportionate to the nature of misconduct that it shocks the conscience of the court. The punishment imposed upon a delinquent should be commensurate to the nature and generally of the misconduct is not only a requirement of fairness, objectivity, and non-discriminatory treatment which even those form part of a misdemeanour are entitled to claim but the same is recognised as being a part of Article 14 of the Constitution. It is also well settled that the doctrine of proportionality is one of the grounds for judicial review. The jurisdiction of a writ court or the Administrative Tribunal for that matter is limited to finding out whether the punishment is so outrageously disproportionate as to be suggestive of lack of good faith.
17. While judicially reviewing an order of punishment imposed upon a delinquent employee, the writ court would not assume the role of an appellate authority. It would not impose a lesser punishment merely because it considers the same to be more reasonable than what the disciplinary authority has imposed. It is only in cases where the punishment is so disproportionate to the gravity of charge that no reasonable person placed in the position of the disciplinary authority could have imposed such a punishment that a writ court may step in to interfere with the same.
18. 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.
19. In the instant case, the disciplinary authority, while disagreeing with the second charge, has not given an opportunity of hearing to the petitioner. It is a settled principle that when the disciplinary authority disagrees with the findings of the enquiry officer and arrives at a conclusion adverse to the delinquent, it is mandatory on the part of the authority to give a reasonable opportunity of hearing to the delinquent. Therefore, in the absence of any such opportunity, the order passed by the respondent is legally infirmed. This is also a case, where the punishment is so disproportionate to the gravity of charges and no reasonable person placed in the position of the disciplinary authority could have imposed such a punishment.
20. Though this matter has not been taken on appeal by the petitioner to agitate all the issues before the appellate authority which is also competent enough to look into the matter, in view of the consistent plea taken by the petitioner that there was denial of opportunity, non-examination of proper witnesses and violation of principles of natural justice, the matter was admitted by this court and Rule NISI issued.
21. Normally, this Court would not interfere with the proportionality of the quantum of punishment and it is for the competent authority to decide in accordance with the rules. However, it is seen from the material documents that the conclusion arrived at by the disciplinary authority on the preponderance of probabilities and also presumptions and assumptions to impose the punishment of removal from service is harsh and excessive. The power of this Court to interfere with the proportionality of the quantum of punishment has been time and again considered by the Supreme Court in a catena of decisions, one of which being the case of Commissioner of Police v. Syed Hussain, referred to above, wherein it has been categorically held that the doctrine of proportionality has to be applied in appropriate cases, and another being the case of B.C.Chaturvedi v. Union of India, 1995 (6) SCC 749, in which it is held that if the punishment imposed by the disciplinary authority or the appellate authority shocks to the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary authority/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. Therefore, when the punishment imposed by the disciplinary authority or the appellate authority is shockingly disproportionate to the given facts and circumstances of the case, this Court while giving due consideration, can certainly interfere with such punishment and remand the matter to the authority to decide what appropriate punishment could be imposed on the delinquent.
22. In view of my above discussion and upon considering the facts and circumstances of the case, the impugned order passed by the respondent, imposing the punishment of removal from service on the petitioner, warrants interference; suffers from legal infirmity and requires reconsideration. Accordingly, it is set aside and the matter is remanded to the respondent to look into afresh for imposing appropriate punishment, which, this Court feels, that the punishment of removal from service shall be reduced or modified to the proportionality of charges framed against the petitioner, and pass appropriate orders within a period of eight weeks from the date of receipt of a copy of this order, after affording an opportunity of being heard to the petitioner.
23. Writ Petition is allowed on the above terms. No costs.
dixit To The Special Commissioner and Commissioner of Revenue Administration, Chennai 5