IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.08.2008 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.No.29662 of 2006 (O.A.No.3921 of 1996) S.C.Dhandapani ... Petitioner v. 1. The District Revenue Officer, Periyar District, Erode. 2. The Assistant Collector, Dharapuram. ... Respondents This petition came to be numbered by transfer of O.A.No.3921 of 1996 on the file of the Tamil Nadu Administrative Tribunal praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the proceedings of the second respondent made in Na.Ka.9144/90F, dated 28.05.1993 as confirmed in the first respondent's proceedings Na.Ka.67879/93 AA, dated 25.03.1996, quash the same and consequently, extend all benefits both service and monetary. For Petitioner : Mr.L.Chandrakumar For Respondents : Mr.C.Gopinathan Addl. Government Pleader O R D E R The petitioner has challenged the order of the District Revenue Officer, Periyar District, first respondent herein, dated 25.03.1996, confirming the order of the Assistant Collector, Dharapuram, dated 28.05.1993, dismissing the petitioner from service and sought for a direction to the respondents to reinstate him in service and grant all monetary benefits. 2. Facts of this case are as follows: When the petitioner was working as an Office Assistant in 1984, a charge memo was issued to him under Rule 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules. Though the same was refuted, following an enquiry, the District Collector, Dharapuram, second respondent, by his order dated 28.05.1993, dismissed the petitioner from service. Appeals filed before the first respondent, dated 14.06.1993 and 22.06.1993, were dismissed and the punishment was confirmed. Aggrieved by the orders of the disciplinary and appellate authorities, the petitioner has preferred Original Application before the Tamil Nadu Administrative Tribunal, which has been subsequently transferred to this Court and renumbered as Writ Petition. 3. Assailing the impugned orders, Mr.L.Chandra Kumar, learned counsel for the petitioner submitted that the orders are liable to be set aside on the sole ground that the enquiry report was not furnished to the petitioner before inflicting the penalty of dismissal from service. According to him, non-furnishing of the same has caused serious prejudice to the petitioner and there is denial of reasonable opportunity to put forth his defence effectively. He further submitted that when the respondents initiated action under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, they ought to have conducted a full-fledged enquiry as contemplated under the Rules. Before inflicting the penalty, no witnesses were examined and the department has not not marked any documents and therefore, the procedure followed by the Enquiry Officer is contrary to rule 17(b) of the above said rules. He further submitted that both disciplinary as well as appellate authorities have failed to consider the above said aspect and therefore, the whole proceedings are void abinitio. He also contended that the appellate authority has failed to follow rule 23-A, by dealing with each and every grounds of appeal memorandum and on the contrary, rejected the appeal without any reason. Therefore, the impugned orders requires interference. 4. If this court is not inclined to accept the above plea, on the question of proportionality, learned counsel for the petitioner submitted that even if the charges are held as not proved, the disciplinary as well as the appellate authorities, ought to have considered the proportionality of the punishment and there is failure to exercise the jurisdiction vested in them. Placing reliance on the decision of the Supreme Court in V.K.Kuppuraj v. Superintendent of Police reported in 2008 (5) MLJ 1301, he submitted that in exceptional cases, Court can interfere with the proportionality of punishment and prayed that a direction may be issued to the respondents to modify the same. 5. In the counter affidavit, the respondents have submitted that the petitioner was an Office Assistant in the Office of Agricultural Income Tax Officer, Dharapuram. During his tenure, he had fabricated challans with bogus seals, as though a sum of Rs.5,225.30 had been remitted into Government account in State Bank of India, Dharapuram. He has misappropriated government money and for this criminal misconduct, the petitioner was suspended by the Revenue Divisional Officer, Dharapuram on 27.09.1984. Disciplinary action was initiated and charges were framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. On completion of the enquiry, he was dismissed from service by the Revenue Divisional Officer, on 30.09.1988. Thereafter, the petitioner sent a petition to the Hon'ble Chief Minister's Cell for cancellation of the above order. The District Revenue Officer, Periyar District, after considering the above said petition, remitted the matter to the Revenue Divisional Officer, Dharapuram for a fresh disposal, owing to certain procedural irregularities. After conducting a fresh enquiry, the Sub Collector, Dharapuram, once again dismissed the petitioner from service in his proceedings, dated 28.05.1993. On appeal, the above order was confirmed by the District Revenue Officer, Periyar District, Erode, in his proceedings, dated 25.03.1996. 6. As regards the conduct of the enquiry, the respondents have submitted that at the time of enquiry before the Enquiry Officer, the petitioner has deposed that he had already sent his written explanation, dated 20.05.1995, to each and every charge and there is nothing more to add. No documents were produced on his side and he did not examine any witness. The Enquiry Officer, on assessment of evidence and based on the records, found that the charges as proved. It is further submitted that the delinquent Officer himself has admitted the charges and confessed before the Agricultural Income Tax Officer, Dharampuram. It is also their case that when the petitioner had handedover the misappropriated amount to the Agricultural Income Tax Officer, Dharampuram on 22.09.1984 and 26.09.1984, no other proof is required. According to them, the findings of the Enquiry Officer based on material documents is not perverse and no malafide can be attributed against the enquiry officer. The charges have been proved beyond reasonable doubt that the petitioner had produced false chalans and misappropriated government money. 7. Though the petitioner was acquitted on benefit of doubt in C.C.No.158/90 of Dharapuram P.S.Cr.No.258/94, the standard of proof in departmental enquiry being 'Preponderance of Probability' and since the findings were on documentary evidence, both the disciplinary as well as the appellate authorities have concurred with the findings of the Enquiry Officer. The respondents have submitted that in the absence of any concrete rebuttal evidence, before the disciplinary authority, it is not open to the petitioner to seek for reappreciation of evidence and prayed that this Court should not sit over the findings recorded by them. According the respondents, the petitioner has been given a reasonable opportunity to put forth his defence and therefore, there is no violation of the principles of Natural Justice. For the above said reasons, they prayed for dismissal of the Writ Petition. Heard the learned counsel appearing for the parties and perused the materials available on record. 8. The charges framed against the petitioner are as follows: "Fw;wrhl;L vz;/1: jhuhg[uk; ntshz;ik tUkhdthp mYtyfjh;jpy; Mf!;L 84 kw;Wk; brg;glk;gh; 84 khj';fspy; mYtyf cjtpahsuhf gzpapypU;ej fhyj;jpy; muRf;F brYj;j ntz;oa ntshz;ik tUkhdthp bjhiffs; fPH Fwpg;gpl;Ls;s njjpfSf;F vjpnu Fwpg;glg;gl;Ls;s bjhif tpgu';fspd;go bkhj;jk; U:/5225/30- jhuhg[uk; ghuj khepy t';fpapy; brYj;jg; bgw;W brd;wij t';fpapy; brYj;jhky; jhuhg[uk; ghuj khepy t';fpapd; nghyp Kj;jpiu jahh; bra;J muR ryhd;fspy; nghyp Kj;jpiu gjpj;Jk;/ nghyp gjpt[fs; ifbaGj;Jf;fs; bra;Jk; nkw;go bjhif bjyif U.5225.30- ifahly; bra;Jk;/ nkhro eltof;iffspy;