IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.08.2011 CORAM THE HONOURABLE MR.JUSTICE K.N.BASHA W.P.No.16851 of 2010 S.Rajamanickam .. Petitioner Vs. 1. The Secretary to Government, Rural Development and Panchayatraj Department, Fort St. George, Chennai – 600 009. 2. The Director of Rural Development, Panagal Building, Saidapet, Chennai – 600 015. 3. The District Collector, Karur District, Karur. .. Respondents Prayer : Writ petitions filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records relating to the proceedings of (i) the third respondent in Na.Ka.Pa.Va.4/13500/2000 dated 28.07.2003, (ii) the second respondent in Se.Mu.Ka.No.32643/05/TPC.3.3 dated 09.09.2005 and (iii) Government Letter No.40352/E5/2005-7, dated 14.05.2007 issued by the first respondent, quash the same and order that the petitioner is deemed to be continuing in service in the post of Junior Assistant with effect from the date of reversion in the Karur District Rural Development Unit and salary from the date of the order with all consequential continuity of services, attendant benefits, service benefits such as promotion on par with junior which has been withheld on account of above penalties together with monetary benefits and disburse all the arrears within a short date that may be fixed by this court. For Petitioner : Mr.K.Rajkumar For Respondents: Mr.P.S.Sivashanmuga Sundaram, Additional Government Pleader https://hcservices.ecourts.gov.in/hcservices/ ORDER The petitioner has come forward with this writ petition challenging the order dated 28.07.2003 passed by the third respondent, the order dated 09.09.2005 passed by the second respondent and the Government Letter dated 14.05.2007 issued by the first respondent with a prayer to quash the same and give consequential benefits. 2. The factual background of the case on hand is that the petitioner was appointed as Panchayat Assistant on 01.04.1983. The next avenue of promotion is Junior Assistant. The qualification required for such post is S.S.L.C. The petitioner has written S.S.L.C. Examination during 1976-1977. But he did not get through. Again, he wrote the examination in March 1995 in Jameendar Higher Secondary School, Kattuputhur. Except Tamil and English, he had passed all the subjects. In the month of October 1995, he appeared for supplementary examination from the same school. The mark sheet has been furnished to the petitioner for supplementary examination on 21.12.1996 and the petitioner passed the subjects. The petitioner was promoted as Junior Assistant on 27.04.1999. 3. Two years thereafter, the certificate of the petitioner was sent for verification and adverse report was received from the Director of Government Examination to the effect that the number of the mark statement differs. As a result, the disciplinary proceeding was initiated against the petitioner under Rule 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules as per the proceeding dated 20.03.2002 on the allegation of producing false mark statement to get his promotion. The petitioner submitted his explanation on 27.03.2002. A criminal prosecution was also launched against the petitioner by registering a case in Crime No.96 of 2002 for the offence under Sections 468 and 471 IPC on the very same allegation of furnishing bogus and fabricated mark statement. Meanwhile in the disciplinary proceeding, an enquiry conducted and the petitioner sought for copies of the documents and list of witness on 27.03.2002, but the same were not furnished to the petitioner. Again enquiry was conducted on 17.02.2003. No witness was examined during such enquiry and no document was marked through its author enabling the petitioner to cross-examine the said witnesses. The entire enquiry was over in ten minutes. The Enquiry Officer found the petitioner guilty as per the report dated 17.03.2003. 4. On 01.04.2003, the Enquiry Report was communicated to the https://hcservices.ecourts.gov.in/hcservices/ petitioner. He sought for personal hearing on 16.04.2003, but the same was not given. The District Collector, the third respondent herein, passed the order dated 28.07.2003 imposing a penalty of reversion of the petitioner from the post of Junior Assistant/a pensionable service to the Panchayat Assistant/a non-pensionable service. The posting order was given to the petitioner on 28.07.2003 and he joined duty on 01.08.2003. The petitioner held the said post for a period of two years. In the meantime, the petitioner as an abundant caution, wrote S.S.L.C. Examination for the second time during the month of September 2002 and passed the same. 5. Thereafter, the petitioner made a representation for promotion again by enclosing new S.S.L.C. Certificate to the Director of Rural Development on 12.04.2005. Based on the said representation, the Director has obtained a report behind the back of the petitioner from the District Collector/the third respondent herein. But no opportunity was given to the petitioner on the adverse report of the District Collector. The Director of Rural Development/the second respondent, while passing the order on the representation, strangely construed the same as an appeal and exercised suo motu power to dismiss the petitioner from service. 6. The petitioner preferred an appeal against the said order on 29.09.2005. As the same was pending, the petitioner preferred a writ petition in W.P.No.48577 of 2006 and this Court directed the Government to pass orders within a period of twelve weeks by the order dated 14.06.2006. But the Government rejected the appeal preferred by the petitioner on 14.05.2007. Subsequently, the trial in the criminal proceedings commenced in C.C.No.17 of 2007 on the file of the Judicial Magistrate No.II, Kulithalai, and the same ended in acquittal by the judgment dated 09.02.2010 on merits. On the basis of the acquittal, the petitioner made further representation dated 17.05.2010 to the third respondent for reinstatement, but no order was passed. Against the judgment of acquittal, the State preferred an appeal in Crl.A.No.187 of 2010 and the said appeal was dismissed by this Court by the judgment dated 23.03.2010 confirming the judgment of acquittal passed by the trial court. The said confirmation of judgment of acquittal was also brought to the notice of the respondents, but no action taken. Therefore, the petitioner has been constrained to approach this Court with this petition with the above said prayer. 7. Mr.K.Rajkumar, learned counsel for the petitioner, vehemently contended that the impugned order of removal from service is liable to be set aside as there is absolutely no evidence to prove the charge levelled against the petitioner. The learned counsel for the petitioner raised several grounds for https://hcservices.ecourts.gov.in/hcservices/ challenging the impugned order, however, mainly placed reliance on the ground of acquittal of the petitioner in the criminal case on the basis of same, similar and identical charge and the criminal court after the examination of witnesses and on appreciation of evidence, ultimately, held that the prosecution failed to prove its case and acquitted the petitioner. The learned counsel for the petitioner pointed out that in the disciplinary proceeding, the disciplinary authority mainly placed reliance on the report said to have been sent by the Director of Government Examination stating that the mark statement produced by the petitioner is a bogus one on the ground that the number of the mark statement is wrong. It is contended that in the disciplinary proceeding, the author of the said report, viz., the Director of Government Examination was not examined to prove the said report in the manner known to law. Therefore, it is contended that the disciplinary authority ought not to have placed reliance on the said report received from the Director of Government Examination behind the back of the petitioner. 8. The learned counsel for the petitioner would contend that in his explanation representation the petitioner stoutly denied the allegation and as such, it is the burden of the disciplinary authority to prove its case by adducing acceptable evidence in the manner known to law in order to prove the charge levelled against the petitioner. The learned counsel for the petitioner would further contend that merely because the petitioner wrote his S.S.L.C. Examination once again and produced the mark statement obtained by him in the said examination, no adverse inference could be drawn against him as the petitioner resorted to such step only by way of abundant caution. It is also contended that the disciplinary proceeding placed reliance on the report sent by the Director of Government Examination to the effect that the mark statement produced by the petitioner is a bogus one only on the ground of variation in the number and the same number was allotted to one Dhanasekaran. But the said Dhanasekaran had not at all written the examination. It is contended that the criminal court has gone into such important factor apart from other infirmities and illegalities found in the prosecution case and ultimately acquitted the petitioner herein. 9. In support of his contentions, learned counsel for the petitioner would place reliance on the following decisions : (1)T.C.Kaushik V. Union of India and others reported in 2007 (2) L.W 970 ; (2)K.Thangam V. The Secretary to Government reported in 2010 (1) CWC 770 ; (3)State of U.P. V. Saroj Kumar Sinha reported in 2010 (2) SCC 772; https://hcservices.ecourts.gov.in/hcservices/ (4)LIC of India V. Ram Pal Singh Bisen reported in 2010 (4) SCC 491; (5)M.Marimuthu V. General Manager (D&PB), SBI reported in 2010 (5) MLJ 925 ; (6)R.Balakrishnan V. FCI reported in 2011 (4) MLJ 669 ; (7)Diljit Singh Bedi V. Shiromani Gurdwara Prabandhak Committee reported in 2011 (5) SCC 417 ; (8)R.Sakthivel (Sub-Inspector) V. The Director General of Police reported in 2011 (2) CWC 53 ; and (9)unreported order of this Court in W.P.Nos.13887 of 2006 etc. dated 26.09.2006 ; 10. Per contra, Mr.P.S.Sivashanmugasundaram, learned Additional Government Pleader, would contend that there is no illegality or infirmity in the impugned order passed by the respondents. It is contended that the disciplinary authority rightly placed reliance on the report sent by the Director of Government Examination to the effect that the petitioner produced a bogus mark statement. It is contended that the petitioner has not given any satisfactory explanation for producing such a mark statement containing wrong number as the number allotted to the petitioner was not found in the mark statement. The learned Additional Government Pleader would point out that by producing the original records to the effect that the disciplinary proceeding authority placed reliance on the enquiry report sent by the Director of Government Examination which was also furnished to the petitioner and as such, the petitioner cannot contend that he was not given any opportunity to defend his case effectively. 11. It is also pointed out that as the petitioner has not given any satisfactory explanation, the question of examining any witness does not arise and more particularly, the petitioner having pleaded apology. It is also contended that the conduct of the petitioner in writing the S.S.L.C. Examination once again and thereafter, producing another certificate itself shows the guilty mind of the petitioner to the effect of producing the bogus mark statement earlier. The learned Additional Government Pleader would also point out that the respondents have also filed a detailed counter to the affidavit filed by the petitioner. The learned Additional Government Pleader would contend that the burden of proving the charge in a criminal case is entirely different from proving the charge in a departmental proceeding and as far as the departmental proceeding is concerned, it is enough for the department to prove the charge by preponderance of probabilities. 12. I have given my careful and anxious consideration to the https://hcservices.ecourts.gov.in/hcservices/ rival contentions put forward by either side and thoroughly scrutinized the entire materials available on record and perused the impugned orders passed by the respondents. 13. The core question involved in this matter is whether the charge levelled against the petitioner to the effect that he produced the bogus and fabricated mark statement is proved in the departmental proceedings in a manner known to law. 14. As far as the case on hand is concerned, the fact remains that during the course of disciplinary proceeding, the department has not chosen to examine any witness to prove its charge. On the other hand, the disciplinary authority solely placed reliance on the report sent by the Director of Government Examination to the effect that the mark statement produced by the petitioner is a bogus one on the ground that the mark sheet contains wrong number which was allotted to another person, by name Dhanasekaran. At this juncture, it is relevant to note that the said Dhanasekaran did not write the examination and the mark statement allotted to him bears the number of the mark statement of the petitioner. 15. The learned counsel for the petitioner also brought to the notice of this Court that the petitioner underwent the ordeal of criminal proceedings initiated against him in C.C.No.17 of 2007 on the file of the Judicial Magistrate No.II, Kulithalai, and the said criminal case ended in acquittal by the judgment dated 09.02.2010 after the learned Magistrate considered the evidence adduced by the prosecution and rendered the judgment on the basis of merits. Against the said judgment of acquittal passed by the trial court, the State preferred an appeal against acquittal in Crl.A.No.187 of 2010 and this Court dismissed the said appeal by the judgment dated 23.03.2010 confirming the judgment of acquittal passed by the trial court. It is pertinent to note that the charge in the criminal proceedings as well as the charge in the disciplinary proceedings are same, similar and identical. Yet another important factor to be borne in the mind of this Court is that even the witnesses are also same. 16. It is relevant to refer the comparative table submitted by the learned counsel for the petitioner regarding the charges in the criminal proceedings as well as in the departmental proceedings as hereunder : "Chart showing the fact that same set of facts same set of witnesses and evidences involved both in criminal and departmental proceedings COMPARATIVE TABLE https://hcservices.ecourts.gov.in/hcservices/ Criminal case in C.C.No.17 of 2007 on the file of the J.M.No.II, Kulithalai. Charges issued to the petitioner Departmental Charge Memo Issued under Rule 17 (b) by District Collector (Development), Karur dated 20.03.2002 (i) The accused Mr.Rajamanickam with a view to get promotion has produced a false mark statement bearing Registration No.487881 as if he has passed in October 1995 and got promotion in Krishnarayapuram Panchayat Union and hence committed the offence under Section 468 IPC Charge 1 While working in Krishnarayapuram Panchayat Union at Karuppathur furnished false S.S.L.C. Certificate for having passed Tamil and English and made service entry. (ii) Knowing as false certificate but used as a genuine certificate thereby committed the offence under Section 471 IPC and liable for punishment Charge 2 Got promotion to the post of Junior Assistant based on the false certificate after including his name in the panel of Junior Assistant for 1997-98 as per G.O.Ms.No.52 RD Dept. dated 20.03.1998 (iii) Therefore, the accused is punishable under Sections 468, 471 IPC Charge 3 As S.S.L.C. is the prescribed qualification for promotion to the post of Junior Assistant from the post of Panchayat Clerk he suppressed the passing of S.S.L.C. and got promotion. 17. The judgment of acquittal produced by the learned counsel in the criminal case would disclose that the Head Master was examined and he has admitted that the candidate bearing Register No.487888 had written the October 1998 examination and the said candidate is none else than the petitioner herein. It is also held by the criminal court that the candidate has signed the attendance register and he has written the examination. A document was also relied on by the prosecution, viz., Ex.P.3, i.e., the mark statement which is the subject matter of the disciplinary proceedings as alleged to have been produced by the petitioner and in the said vital document, the findings of the criminal Court is that the signature of the Secretary, Government Examination was found. Added to such findings, the criminal court also held that there is no evidence to show that the petitioner has not written the examination and he has not been furnished with any any mark sheet. Against the said judgment of acquittal, the State preferred an appeal before this Court and this Court dismissed the said https://hcservices.ecourts.gov.in/hcservices/ appeal confirming the judgment of acquittal by the judgment dated 23.03.2010 in Crl.A.No.187 of 2010 holding that there is no illegality or error apparent on the face of the record in the order of acquittal passed by the trial Court. Therefore, it is crystal clear that in the criminal proceedings, a finding was given on the basis of the evidence adduced by the prosecution and on the basis of the merits. Of-course, the burden of proving the charge in a criminal case is entirely different from the burden of proving the same in a departmental proceedings as in the criminal proceedings, the case has to be proved beyond reasonable doubt and as far as the departmental proceedings are concerned, it is enough for the department to prove the charge by preponderance of probabilities. At this stage, it is to be stated that even for proving the charge by preponderance of probabilities there should be sufficient evidence and materials available on record. 18. Now coming to the disciplinary proceedings, at the risk of repetition, it is to be reiterated that the petitioner has been found guilty solely on the basis of placing reliance on the report sent by the Director of Government Examination. The fact remains that as already pointed out, the disciplinary authority has not chosen to summon the said author, namely, the Director of Government Examination to speak about the so-called report which is against the petitioner herein. 19. It is well-settled by a catena of decision of the Hon'ble Apex Court and this Court that any document has to be proved by examining the author and without examining the author as a witness, the said document cannot be placed reliance as the same was not proved in the manner known to law. The learned counsel for the petitioner has rightly placed reliance on certain decisions rendered by this court as well as by the Hon'ble Apex Court. 20. In an unreported order dated 26.09.2006 in W.P.Nos.13887 of 2006 etc., a learned Single Judge of this Court has held as hereunder : "13. As per the judgment reported in 1989 (4) SLR (Rajkishore Pandey Vs. Rewa Sidhi Gramin Bank and another) at paragraph 11 and so also the judgment reported in AIR 1959 SC 1111 (Phulbari Tea Estate Vs. Its Workmen), when the author of the report has not been examined, any order passed, basing on the report, is unsustainable and apart from this as rightly contended by the learned counsel for the petitioners, all the applicants were appointed in the year 1981 and as far as certificate verification is concerned, it should have https://hcservices.ecourts.gov.in/hcservices/ been done immediately after their appointment and in this case, their services also regularized by the order issued in the year 1982. But long after that, the certificate verification has been carried on and the impugned order has been passed as rightly contended by the learned counsel for the petitioners, if action is taken in a shrewd manner, even assuming the certificate produced are false certificate, the petitioners would have got an alternative job. As on date, they have completed more than 20 years of service. That apart, this issue has been already covered by judgment referred by Tamil Nadu Administrative Tribunal in O.A.Nos.684 to 691 of 1992, 671/1994 and 4031 of 1991 batch." (emphasis supplied by this Court) A reading of the above said finding of the learned Single Judge makes it crystal clear that the same was given placing reliance on the decision of the Hon'ble Apex Court. In the said unreported order also similar charges were framed against the petitioners in the batch of writ petitions, viz., on the allegation of production of false and bogus mark sheets and the reliance was also placed on the basis of the adverse report submitted by the department without examining its author. 21. In Roop Singh Negi V. Punjab National Bank reported in 2009 (3) SCC 934 (SC) the Hon'ble Apex Court held as hereunder : "10. Indisputably, a Departmental proceeding is a quasi-judicial proceeding. The Enquiry Officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The Enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the Accused by itself could not be treated to be evidence in the Disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence. We have noticed herein before that the only basic evidence whereupon reliance has been placed by the Enquiry Officer was the purported confession made by the Appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the Police Station. Appellant being an employee of the bank, the said confession should have been proved. Some evidence should have been https://hcservices.ecourts.gov.in/hcservices/ brought on record to show that he had indulged in stealing the Bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the Enquiry Officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left." (emphasis supplied by this Court) 22. The Hon'ble Apex Court further held in the said decision as hereunder: "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." (emphasis supplied by this Court) 23. The Hon'ble Apex Court in the said decision also referred to and relied on its earlier decisions in Union of India V. H.S.Goel reported in 1964 (1) LLJ 38 (SC), Moni Shankar V. Union of India and Another reported in 2008 (3) SCC 484 and Narinder Mohan Arya V. United India Insurance Co.Ltd., reported in 2006 (4) SCC 713. 24. This Court in M.Marimuthu V. General Manager (D&PB), SBI reported in 2010 (5) MLJ 925 held as follows : "In the absence of examination of the authors of accusations against the delinquent, the statements exhibited during the course of enquiry before the enquiry officer is of no evidentiary value. ...... In a disciplinary proceeding, like a civil matter, the Department should come out with all evidence to establish that there is preponderance of probability to nail the erring employee on the charges levelled against him." (emphasis supplied by this Court) 25. The principles laid down by the Hon'ble Apex Court and https://hcservices.ecourts.gov.in/hcservices/ this Court in the decisions cited supra are squarely applicable to the facts of the instant case as in this case also the disciplinary authority placed reliance on the sole piece of material, viz., the report sent by the Director of Government Examination without examining its author and as such, by no stretch of imagination, it could be considered to be a legal evidence to prove the charge levelled against the delinquent. Therefore, this Court has no hesitation to hold that this is a classic case of no evidence available on record to prove the charge levelled against the petitioner and the disciplinary authority has simply overlooked the legal requirement and basic principle for establishing a charge by adopting the procedure known