Madras High Court
C.Jaganathan vs State Of Tamil Nadu on 19 November, 2018
Author: C.Saravanan
Bench: C.Saravanan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 10.09.2018
PRONOUNCED ON : 19.11.2018
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P.No.23414 of 2008
C.Jaganathan .. Petitioner
vs
1.State of Tamil Nadu,
Rep. by its Secretary to Government,
Home (Transport) Department,
Secretariat, Chennai-9.
2.Commissioner of Transport,
Chepauk, Chennai-5. .. Respondents
Prayer : Writ Petition is filed under Article 226 of the Constitution
of India, for issuance of a writ of Mandamus calling for the records
pertaining to the order passed by the 1 st respondent in G.O.(D)
No.773, Home (Transport) Department, dated 01.07.2008
confirming the order passed by the 2nd respondent in his
proceedings No.90544/V5/02 dated 15.12.2006 and to quash the
same and to direct the respondents to confer all the consequential
benefits to the petitioner.
For petitioner : Mr.S.Mani,
For respondents : Mr.N.Inbanathan
Additional Government Pleader
http://www.judis.nic.in
2
ORDER
The above writ petition has been filed for issuance of a Writ of Mandamus to call for the records pertaining to the order passed by the 1st respondent in G.O.(D) No.773, Home (Transport) Department, dated 01.07.2008 confirming the order passed by the 2nd respondent in his proceedings No.90544/V5/02 dated 15.12.2006 and to quash the same and to direct the respondents to confer all the consequential benefits to the petitioner.
2.The petitioner joined as a Junior Assistant through TNPSC on 22.10.1969 and was working as Motor Vehicle Inspector (Non- Technical).
3.The petitioner was on duty at K.G.Chavadi Check Post in 2002 under the control of the Regional Transport Officer, Comibatore.
4.As per the petitioner, the check post is manned by four teams on rotation basis with each consisting of three persons i.e., Motor Vehicle Inspector (Non-Technical), Junior Assistant and an Office Assistant. The shift is for 12 hours and the change is at 08.00 a.m. to 08.00 p.m.
5.On 20.12.2002, the petitioner's team took charge at 8.00 p.m. Relieving the previous team. The petitioner avers that since each shift covers 12 hours, there is no handing over or taking charge and the take over is seamless.
http://www.judis.nic.in 3
6.The check post according to the petitioner has four rooms with a verandah and that one room is meant for the Motor Vehicle Inspector (Non-Technical), another room for Junior Assistant, one record room and one vacant room and that the record room does not have any lock and key.
7.While so, the Vigilance squad inspected the premises by way of surprise check around 6.30 a.m. on 21.12.2002 and found and recovered excess unaccounted cash in the office room and record room. On the basis of the Vigilance squad's report, the case was referred to the Disciplinary committee headed by the 2nd respondent against the petitioner's team.
8.The 2nd respondent framed 6 charges against the petitioner, Junior Assistant/Subramaniam and Office Assistant/Palanichamy. A preliminary enquiry was ordered and based on the same, disciplinary proceedings were initiated against all the three, who were on duty at the time of visit by the Vigilance Officers. The disciplinary proceedings exonerated the Office Assistant, while the petitioner and the Junior Assistant were removed from service pursuant to the disciplinary proceedings. In the proceeding, two charges viz., Count No.2 and Count No.4 were held to be proved against him. The said two charges are extracted as under:
“Count No.2: AO1 to AO3 being the officers of the Check Post on duty, kept an unaccounted account of http://www.judis.nic.in 4 Rs.50,650/- concealed in a rak in the record room collected bribe from the owners and drivers of the vehicles through the private individual Vincent and thereby failed to maintain the integrity as a Government Servant and acted in manner of unbecoming conduct of a Government Servant.
Count No.5: A.O1 and A.O2 were working as Motor Vehicles Inspector (Non-Technical) (AO1) and Junior Assistant (AO2) in the Transport Department check post in K.G.Chavadi, Coimbatore District, you misused your official post and authority with ulterior motive and appointed an unofficial outside Thiru A.Vincent, in violation of the Government Rules and procedures in force, and used him to demand and receive bribe for you. Thereby you have failed to maintain the integrity required of a Government Servant and acted in a manner unbecoming of a Government Servant.”
9.The petitioner filed an appeal against the said dismissal order before the 1st respondent. However, the appeal was dismissed and the order of the 2nd respondent was confirmed vide G.O.(D) No.773, Home (Transport) Department, dated 01.07.2008. The said order has been impugned in this writ petition.
10.The petitioner contends that the charges do not mention that the petitioner received any amount by way of bribe and that it only mentions that unaccounted amount was recovered from the record room. Therefore, the petitioner contends that his duty http://www.judis.nic.in 5 started only at 8.00 p.m. and ends by 8.00 a.m. and if any unaccounted amount was found and recovered, all the four teams or at least the previous team which discharged duty also ought to have been enquired along with petitioner's team.
11.The petitioner contends that there was no evidence against him for accepting any bribe or appointing one Vincent, a third party who was said to have been appointed privately to collect amounts illegally from the vehicles. Hence, the petitioner claims that the entire impugned order was based on assumptions and presumptions and seeks to quash the same.
12.The respondents in their counter contended that there is no illegality in the order passed by the 2nd respondent or the 1st respondent while upholding order of the 2nd respondent. According to the respondents circumstantial evidence prove that the petitioner was guilty of the above two charges and therefore the punishment by was dismissal cannot be disturbed.
13.Disciplinary proceedings are not governed by strict rules of evidence. Charges against will stand proved on the principle of preponderance of probabilities.
14.The conclusions of the 2nd respondent is that in absence of satisfactory explanation, it has to be assumed that the cash was kept hidden by the petitioner and his team and since there is no http://www.judis.nic.insatisfactory explanation as to how A.Vincent was found near the 6 Check Post at the time of surprise check, it has to be assumed that Vincent was privately employed by the petitioner as petitioner was in control of the Check Post.
15.It is the contention of the petitioner that the Check Post has four teams and therefore questions should have been asked from other teams as well who were on rotation to ascertain the truth. It is submitted that the 1st respondent has acted contrary to Rule 23 of Rules as this is no independent exercise of mind while passing the impugned order.
16.Heard, Mr.S.Mani, learned counsel for the petitioner and Mr.M.Inbanathan, learned Additional Government Pleader for the respondents.
17.The learned counsel for the petitioner relied on the following decisions:
(i) State of Uttar Pradesh and others Vs. Raj Pal Singh (2010) 5 SCC 783.
(ii) A.Subramani Vs. Principal Secretary to Government, order dated 21.01.2013 in W.P. No.11146 of 2011.
18.Both the decisions have been relied to state that the punishment is both harsh and discriminatory in as much as there is neither direct or indirect evidence to connect the petitioner with the alleged charges nor punishment is commensurate with the http://www.judis.nic.inunproved charges. 7
19.I have gone through the facts of the case. The Vigilance and Anti corruption wing on the tip off conducted a surprise visit and found that one A.Vincent was seen at the Check Post at the time when the petitioner was in-charge Check Post at K.G.Chavadi. During search, the officials Vigilance and Anti Corruption Department found that a sum of Rs.50,650/- was kept hidden at record room.
20.On being questioned, the petitioner has distanced himself from the same and denied his involvement, though he was trapped and arrested by the Directorate of Vigilance and Anti Corruption Officials while he was allegedly receiving illegal gratification from a driver of a tourist taxi for issue of temporary permit to visit Kerala State.
21.Six charges were framed against the petitioner and enquiry under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules was conducted. Out of the six charges that were framed, the following two charges at Nos.2 and 4 were said to have been proved against the petitioner.
http://www.judis.nic.in 8 Fw;wr;rhl; Fw;wk; Charge L Fw;wr;rhl; nrhjidrhtoapd; gjptiwf;Fs; Rthpy; cs;s The unaccounted L vz;.2 mykhhhpapy; gjpntLfs; kw;Wk; amount of Mtzq;fSf;F ,ilapy; xspj;J itf;fg;gl;oUe;j Rs.50,650/-, which was hidden in mYtyf hPjpahf fzf;F fhl;lg;glhj bjhif between the U:.50>650/- I 20.12.2002 md;W ,ut[ 8 registers and kzp Kjy; 21.12.2000 fhiy 6.45 kzp documents in the tiuapyhd cq;fs; mYtyf ntiy neuj;jpy; shelf in the Record <nuhL khtl;lk;> gthdprhfh; mQ;ry; Room of the Check jpU.V.tpd;brz;l; vd;w mYtyf hPjpahf Post, is the bribe amount demanded bjhlh;gpy;yhj jdp egh; K:yk; thfd and received from chpikahsh;fs; Xl;Leh;fs; nghd;nwhhplk; the Vehicle Owners nfl;L bgw;wpUe;j ifa{l;Lj; bjhif MFk;. and Drivers through one Tiru.A.Vincent, Bhavanisagar Post, Erode District, a private party who is in no way related officially, between your duty hours between 8.00 p.m on 20.12.2002 and 6.45 a.m., on 21.12.2002. Fw;wr;rhl; ; <nuhL khtl;lk;> gthdprhfh; mQ;ry; You have appointed L vz;.4 jpU.V.tpd;brz;l; vd;w mYtyf hPjpahf one Thiru. A.Vincent bjhlh;gpy;yhj jdp egiu eilKiwapYs;s of Bhavanisagar, Erode District, a muR tpjpKiwfSf;Fk; mYtyf eilKiwfSf;Fk; private party, by g[wk;ghf gjtp kw;Wk; mjpfhuj;ij bfl;l violating the vz;zj;Jld; gad;gLj;jp mtiu gzpf;F mkh;j;jp Government Rules ifa{l;il nfl;L bgw;W tR{ypf;f gad;gLj;jp and Regulations and te;jPh;fs;. by misusing power with malafide intention and used him to collect the bribe. http://www.judis.nic.in 9
22.During the disciplinary proceedings the petitioner was placed under suspension under Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules a direction obtained from the Tamil Nadu State Administrative Tribunal.
23.Inquiry Report No.7/04 in G.O.(3D) No.32, Home (Tr.H) Dept dated 25.05.2006 was forwarded to the 2nd respondent/Transport Commissioner on 24.04.2006 to take further action under Rule 10(b) of the aforesaid Rules. The petitioner was thereafter called upon to furnish his reply/representation.
24.By the impugned order dated 15.12.2006, the 2 nd respondent has held that the two charges have been proved even though there is absence of any direct evidence against the petitioner in the concealment of the unaccounted cash of Rs.50,650/- recovered on 21.12.2002 or in the employment of A.Vincent as a private employee in the precinct of the Check Post to collect bribe from the transporters/vehicle crossing the Check Post. During the Tribunal Disciplinary Proceedings, P.W.8 has stated that AO2 and Vincent were arrested before registering the FIR on a complaint made by P.W.1 at about 9 or 9.30 A.M. According to http://www.judis.nic.inP.W.8 there were three persons at the check post for getting the 10 permits and he is not aware whether there was a demand or acceptance of money from AO2. P.W.8 further did not confirm any demand either by A)1 or A)3 from P.W.1. P.W.8 had admitted that he had followed the instructions of the DSP and did not initiate any report by the District Inspection cell. He has further stated that there are four shifts functioning at the check post and there are four Motor Vehicle Inspectors, for Junior Assistants and four Office Assistants. He also stated that he was aware of the common sweeper and cook maintained by the officers of the check post. He has agreed that the officer's incharge of other shifts also could have committed the same malpractices with the assistance of P.W.6. Above all P.W.8 has clearly stated that there is no register maintained at the check post for taking overall charge in each shift. P.W.6, A.Vincent was not charge sheeted by the prosecution with a view to gain his evidence against the Accused officers P.W.9 and 10 have fixed all the liabilities against the Accused Officers based on the alleged statement recovered from P.W.6. However, P.W.6 did not confirm or corroborate the statement of the Investigating Officer and as such the allegations against AO1 to AO3 remained unsubstantiated. Evidence of P.W.2 is that he does not know P.W.6, Vincent and added that he was not an employee of the check post. P.W.6 has claimed himself to be a casual visitor and he has not been http://www.judis.nic.inprivately employed by AO1 and AO2. 11
25.The 1st respondent has merely reaffirmed the order of the 2nd respondent vide order dated 01.07.2008, dismissing the petitioner from service.
26.I have considered the rival submissions and the documents.
27.In disciplinary proceedings, disciplinary authority is expected to consider the evidence and arrive at the conclusion of a fact on pre-ponderance of probability. The test of “preponderance of prohibition” has been very elegantly explained by the Hon'ble Supreme Court in N.G.Dastane (Dr) Vs. S.Dastane (1975) 2 SCC 326 as follow:
“The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact- http://www.judis.nic.in situation will act on the supposition that the fact 12 exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note: “the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue [ Per Dixon, J. in Wright v. Wright, (1948) 77 CLR 191, 210] ”; or as said by Lord Denning, “the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear [Blyth v. Blyth, (1966) 1 AER 524, 536] ”. But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged.” http://www.judis.nic.in 13
28.Thus, applying the above test, question is whether it was probable that Rs.50,650/- recovered from the record room by the official from Vigilance and Anti Corruption Department on 21.12.2002, would have been received or collected as bribe by the petitioner or not when the check post was under the petitioner control?. There are different probabilities for the unaccounted cash to be found hidden in the record room. The impossible and improbable are to be weeded out within wide range of probabilities and thereafter preponderance of probabilities has been determined.
29.Probability of the cash being stashed in the record room by the petitioner and staff present is not the only probability. It could have been kept by anybody else. Facts have to be arrived after proper enquiry and after recording statement of other teams as well.
30.In the present case, there were several probabilities as was explained during the enquiry. However, none of the probabilities has been culled out from factual matrix to arrive at the preponderance of probability to hold the petitioner guilty. The amount said to have been collected by Vincent as bribe was found http://www.judis.nic.inhidden in the record is one of the probability as the Check Post was 14 under the petitioner's supervision at the time of visit by the officers of Vigilant and Anti Corruption Department.
31.The fact that there no standard procedure for handling and taking over of the charges between the four teams did call for an enquiry from the rest of the three teams as well. After enquiry, the pre-ponderance of probabilities ought to have been arrived. In stead, the responsibility has been fastened on the petitioner to deter others from indulging in alleged bribery. However, the imposition of punishment by way of dismissal from service reason to deter others by itself will not satisfy the test of preponderance of probability.
32.Presence of A.Vincent at the Check Post to conclude that he was appointed by the petitioner to collect bribe appears to be too far fetched. The petitioner has explained that Mr.A.Vincent was his son's friend who had come to visit his son studying in a college near Check Post and was present at the Check Post when the surprise check was conducted by the officer of Vigilance and Anti corruption wing on 21.12.2002. However, there are no evidence to suggest he was collecting money as an employee. Mere presence of a casual visitor at the spot of investigation ipso facto cannot lead http://www.judis.nic.into an conclusion that Mr.A.Vincent was a private employee engaged 15 to collect bribe for the petitioner. Thus, the finding of the authority fails as the test of balance of probability has not been satisfied.
33. Mere presence of A.Vincent at the Check Post does not satisfy the test of preponderance of probability that Vincent was a private employee of the petitioner to collect bribe especially when both A.Vincent and AO2 have not confirmed the respondent's version. Reasons attributed for the presence of A.Vincent, whether as a casual visitor or as a private employee of the petitioner has to be on the basis of evidence.
34.Lurking suspension of rampant corruption is certainly a ground to lay trap and to catch a delinquent officer red handed and to initiate disciplinary proceedings. However, the cautions that are to be exercised by a disciplinary authority while proving charges cannot be ignored. Punishment cannot be only with a view to deter others from committing similar offences with which a delinquent was charged without establishing the charge on the acid test of preponderance of probability of the case, AO2 Officer T.A.Subramaniyan has also confirmed that he did not know who was Vincent. If so, it would he unfair to unilaterally come to the conclusion that Charge Nos.2 and 4 have been proved. http://www.judis.nic.in 16
35.I am of the view that the facts of case ends of justice would be met, if the case is remanded back to the 2 nd respondent to re-examine the case afresh by getting proper explanation not only from the staffs who were present at the time of the visit by the officials of the Vigilance and Anti Corruption Department at the Check Post on 21.12.2002 but also from other staffs of the rest of three teams to ascertain the modus adopted by the Staffs at Check Post.
36. Therefore, this writ petition is allowed with consequential relief together with interest at the applicable rates as was in force on the date of dismissal of the petitioner, within a period of 8 weeks from the date of receipt of a copy of this order. No costs.
19.11.2018 Speaking / Non-Speaking order Index: Yes / No Internet: Yes / No ia/Arul http://www.judis.nic.in 17 C.SARAVANAN.J., ia/Arul Pre-Delivery Order in W.P.No.23414 of 2008 19.11.2018 http://www.judis.nic.in