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 This writ petition filed under article 226 of the constitution of India, praying to issue a writ of certiorari, to call for the records on the file of the respondent in proceeding RC.SER.V(2)/ 49556/99, and dated 22.9.2000 and quash the same as illegal/ in competent and without jurisdiction. For petitioner :Mr.V.Raghavachari For respondent :Mr.S.Gopinathan, Addl.Govt.Pleader. 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 respondent’s 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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. https://hcservices.ecourts.gov.in/hcservices/ 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