IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.2.2011 CORAM:- The Hon'ble Mr. Justice R. SUDHAKAR W.P. No.28258 of 2008 .......... T. Thangaraj .... Petitioner Vs. THE SECRETARY TO GOVERNMENT, Home (Tr.II) DEPARTMENT, SECRETARIAT, CHENNAI-9. ... Respondent Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to call for the records pertaining to the order passed by the respondent herein in G.O.(D) No. 842, Home (Tr.II) Department, dated 21.7.2008 imposing a punishment of stoppage of increment for a period of two years with cumulative effect and quash the same and consequently direct the respondent herein to pay the petitioner all the monetary benefits withheld consequence of the above punishment with all other service benefits. For Petitioner : Mr. Ravi Shanmugam For Respondents : Mr. L.S.M. Hasan Fizal Govt. Advocate ORDER This writ petition is filed to call for the records pertaining to the order passed by the respondent in G.O.(D) No. 842, Home (Tr.II) Department, dated 21.7.2008 imposing a punishment of stoppage of increment for a period of two years with cumulative effect and quash the same and consequently direct the respondent to pay the petitioner all the monetary benefits withheld consequence of the above punishment with all other service benefits. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner is a Superintendent in Regional Transport Office. On 8.4.2005, a surprise inspection was done by the Vigilance and Anti-Corruption Department. At the time of inspection, the officers recovered a bag containing cash of Rs.6200/- and the office seal bearing the designation as Assistant Registering Authority. Mahazer was also drawn. A charge memo dated 4.4.2006 under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules was issued to the petitioner, the superintendent in that office at that point of time. 3. The Deputy Transport Commissioner-II was appointed as the enquiry officer and he, on completion of the enquiry, came to the conclusion that the charges as against the petitioner/superintendent was not proved. Before the enquiry officer, four witnesses Viz., P.W.1 Krishnamoorthy Rao, Deputy District Inspection Cell Officer, P.W.2 R.Mohan, Deputy Superintendent of Police, Vigilance and Anti-corruption, P.W.3 Veda Rathinam, Inspector of Police and P.W.4, P. Sathiyaraj, an outsider, were examined. 4. The evidence of P.W.4, an outsider is in the nature of confession, who stated that he left a rexine bag behind the seat of Gowri, Junior Assistant and he is the one, who put the rubber stamp inside the bag. P.W.1, who is the officer of the Inspection Cell, states that the rexine bag containing cash and the rubber stamp were found in the room of Tmt. Gowri, junior assistant. It is also the statement of P.W.1 that a sum of Rs.6200/- was returned to P.W.4 on the same day, which form part of the charge memo itself. P.W.2, the Deputy Superintendent of Police, Vigilance and Anti Corruption also confirms that a maroon rexine bag was in the room of Gowri, junior assistant and there was no excess cash with any person. P.W.3, Inspector of Police, deposed that there was huge crowed in the office at the time of surprise check and no cash was taken from any staff. P.Ws. 2 and 3 have not stated anything against the petitioner. Based on these evidence, the enquiry officer came to the conclusion that the charge against the petitioner has not been proved. The Government however in their letter dated 31.12.2007 disagreed with the findings of the enquiry officer stating that there is a reasonable basis to suspect that the incident has happened and that there is lack of supervision. On this premise, a show cause notice was issued for which the petitioner submitted his explanation on 15.2.2008. Reversing the view of the enquiry officer, punishment was imposed on the petitioner in the following manner. "Stoppage of increment for two years with cumulative effect." Challenging the Government Order, the present writ petition has been filed. https://hcservices.ecourts.gov.in/hcservices/ 5. The contention of the learned counsel for the petitioner is that none of the witnesses had deposed against the petitioner and there is nothing to connect the petitioner with the recovery of money, the bag and the seal. The confession of the outsider fortifies the findings of the enquiry officer. When the Vigilance and Anti-Corruption Officers have stated that the petitioner has no role to play, the department cannot state that as a supervising officer, the petitioner should take more care and caution in the management of the office. If the seizure has any connection with the petitioner, then the question of suspicion would arise. In this case, the said Gowri, Junior Assistant was working in a separate room in the office of the Regional Transport Authority and that has no connection with the petitioner and there is no material to so connect the two. The order of the Government primarily is on the footing that the petitioner as a supervising officer should ensure all the officers work without any deviant behaviour. Challenging the findings as perverse and prejudiced, the petitioner's counsel pleaded for setting aside the impugned proceedings. 6. In this case, the reason for disagreement is as follows:- " The reason for leaving behind the bag containing 4 Registration Certificate books along with Rs.6,200/- in cash has not been properly explained. The rubber stamp of the Assistant registering authority inside the bag also begs the question. All the above leaves room to reasonably suspect complicity on the part of the delinquent besides lack of supervision on his part as the office superintendent. Hence, the charge is to be held proved. The explanation is not convincing. There is no room for reasonable suspicion of this complicity pertaining to the bag with the Registration Certificate books and cash besides the rubber stamp of the Assistant Registering Authority. So the findings of the enquiry officer is not accepted and the charge is held proved." 7. The issue as to whether a person can be charged with the delinquency as above on the ground of suspicion of his complicity in the delinquency was considered by the Apex Court in KULDEEP SINGH – Vs. - COMMISSIONER OF POLICE AND OTHERS reported in (1999) 2 SCC 10) wherein in paragraphs 6,7 and 10 held as follows:- " It is no doubt true that the High Court under Article 226 or this Court under Article 32 would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the enquiry officer as a matter of course. The Court cannot sit in https://hcservices.ecourts.gov.in/hcservices/ appeal over those findings and assume the role of the appellate authority. But this does not mean that in no circumstance can the Court interfere. The power of judicial review available to the High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictates of the superior authority. (7) In Nand Kishore Prasad V. State of Bihar, it was held that the disciplinary proceedings before a domestic tribunal are of quasi-judicial character and, therefore, it is necessary that the Tribunal should arrive at its conclusions on the basis of some evidence, that is to say, such evidence which and that too, with some degree of definiteness, points to the guilt of the delinquent and does not leave the matter in a suspicious state as mere suspicion cannot take the place of proof even in domestic enquiries. If, therefore, there is no evidence to sustain the charges framed against the delinquent, he cannot be held to be guilty as in that event, the findings recorded by the enquiry officer would be perverse. (10) A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is thoroughly unreliable and resonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with. " 8. This is based on the well established Principle of Law that mere suspicion cannot take the place of proof even in domestic enquiry. This Principle squarely applies to the facts of the present case as could be seen from the reasons for the disagreement by the Government. None of the witnesses speak against the petitioner and there is no evidence to point the guilt against the petitioner. The seal is not relatable to the petitioner. The recovery is not from the petitioner. The oral evidence of witnesses does not implicate the petitioner even remotely. https://hcservices.ecourts.gov.in/hcservices/ 9. In the total absence of material oral or documentary as against the petitioner, the Government erred in holding that the petitioner is guilty of the delinquency charged. The findings of the Government is totally perverse. It is based on conjunctures and surmises. Since the conclusion arrived at by the Government to hold the petitioner guilty is totally perverse. and based on no evidence, the impugned proceedings deserves to be interfered by invoking Article 226 of the Constitution of India to set correct the error. The impugned proceedings is liable to be set aside for the above stated reasons and is set aside. 10. In the result, this writ petition is allowed as prayed for. No order as to costs. ra Sd/- Deputy Registrar //True Copy// Sub Asst. Registrar To THE SECRETARY TO GOVERNMENT, Home (Tr.II) DEPARTMENT, SECRETARIAT, CHENNAI-9. + 1 cc to Mr. Ravi Shanmugam, Advocate SR No.9460 + 1 cc to Government Pleader, SR No.9639 NM(CO) SR/21.3.2011 WP No. 28258 of 2008 https://hcservices.ecourts.gov.in/hcservices/