IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 01-11-2010 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.No.21891 OF 2008 C.Elumalai ... Petitioner -vs- 1.The Secretary to the Government of Tamil Nadu, Housing and Urban Development, Fort St.George, Chennai-9. 2.The Chairman, Tamil Nadu Housing Board, Nandanam, Chennai-35. 3.The Managing Director, Tamil Nadu Housing Board, Nandanam, Chennai-35. 4.The Secretary and Personnel Officer, Tamil Nadu Housing Board, Nandanam, Chennai-35. ... Respondents Petition under Article 226 of the Constitution of India. For petitioner : Dr.R.Sampathkumar For respondents : Mr.A.Vijaya Kumar O R D E R This Writ Petition has been filed, praying for issuance of a writ of certiorarified mandamus, to call for the records relating to the Charge Memo No.DCI/34863/2003, dated 13.11.2003, issued by the Managing Director, Tamil Nadu Housing Board, Chennai, third respondent herein; order of punishment No.DCI/34863/2003, dated 08.10.2004, passed by the Secretary and Personnel Officer, Tamil Nadu Housing Board, fourth respondent herein; order of rejection proceedings No.DCI/69749/04, dated 08.01.2007, passed by the Board communicated by the Managing Director, Tamil Nadu Housing Board, third respondent herein, and the G.O.No.225, dated 25.10.2007, passed by the Secretary to the Government of Tamil Nadu for Tamil Nadu Housing Board, first respondent herein; quash the same and consequently direct the respondents to reinstate the petitioner into service. https://hcservices.ecourts.gov.in/hcservices/ 2. According to the petitioner, he served the respondent Board for 28 years initially as Personal Clerk, thereafter as Assistant and finally as Divisional Accountant; during his service with the Board, he has not committed any mistake nor any irregularity to the name and fame of the Board; that being so, he was served with a Charge Memo on 13.11.2003 with three charges, for which he gave proper explanation on 01.12.2003 to the third respondent; during the oral enquiry on 06.04.2004, the Enquiry Officer directed him to give a statement on the occurrence specified in the complaint made by one Prema, but, he requested the Enquiry Officer to allow him to submit his final explanation on the charges after due enquiry was made; he has given a statement in the said enquiry; the Enquiry Officer has not prepared any daily sheet during the oral enquiry and nothing has been supplied to him to that effect; the Superintending Engineer, who conducted the preliminary enquiry has not appeared on 06.04.2004 and nothing has been recorded from him; therefore, the documents shown in Annexure-III were not marked to prove the charges; Annexure-IV of the Charge Memo shows the list of witnesses as NIL; the Enquiry Officer has not given proper opportunity to him to submit a final reply on the enquiry; the Enquiry Officer has concluded his minutes without any explanation after the enquiry; the enquiry report was served on him, for which he submitted his further reply on 29.09.2004, but, the Secretary and Personnel Officer of Tamil Nadu Housing Board, Chennai, passed an order of dismissal from service vide his proceedings dated 08.10.2004; aggrieved over the said order of punishment, he preferred an appeal with the Chairman of the Tamil Nadu Housing Board on 25.10.2004, but the same was rejected, confirming the order of punishment and, thereafter, he preferred a review petition on 31.12.2007, but the same was rejected by the first respondent on 19.02.2008. Hence, this Writ Petition. 3. Respondents have filed a counter, stating as follows : One D.Prema, w/o.P.Damodaran, Work Assistant, Nandanam Division, in her petition addressed to the Managing Director, Tamil Nadu Housing Board, dated 16.06.2003, stated that the petitioner who was working as Divisional Accountant in Nandanam Division had demanded a sum of Rs.500/- as bribe from her on 12.06.2003 at her residence for relieving her husband P.Damodaran, Work Assistant, from Nandanam Division to K.K.Nagar Division due to transfer orders issued by the Head Office, besides abusing her husband and threatening of dire consequences. Further, the complainant Prema requested to take action against the petitioner and give life protection to her and her husband. The Managing Director, Tamil Nadu Housing Board, on the said complaint, ordered to send the petition to police department to take action against the petitioner and also ordering departmental enquiry by the Superintending Engineer, Chennai Circle, against the petitioner. The Superintending Engineer, Chennai Circle, in his report, dated 30.07.2003, submitted that he conducted a discreet inquiry on the complaint of D.Prema with the connected delinquent and https://hcservices.ecourts.gov.in/hcservices/ furnished his inquiry report. Thereafter, the Administrative Officer of Tamil Nadu Housing Board was appointed as Inquiry Officer for Departmental enquiry on the charges framed against the petitioner. The said Inquiry Officer conducted enquiry on 06.04.2004 with the petitioner and the complainant. Further enquiry was fixed for cross examination on 17.05.2004 and 21.06.2004. On both occasions, Prema had appeared for the enquiry, however, the petitioner did not attend. Pursuant to the enquiry, the Inquiry Officer has furnished his findings dated 30.08.2004, holding that the charges levelled against the petitioner are proved. Therefore, only based on the findings of the Inquiry Officer, the petitioner was dismissed from service. 4. Learned counsel for the petitioner has strenuously contended that the enquiry officer has not supplied the documents relied upon to frame the charges; he has not summoned the complainant; in the absence of any deposition by P.W.1 Prema, the complainant, coupled with no opportunity to cross-examine the witnesses, the entire enquiry is vitiated. He would further contend that the respondent has proceeded to impose a capital punishment of dismissal from service without considering the explanation of the petitioner and therefore the punishment is excessive, harsh and disproportionate to the charges. One more contention is raised by the counsel stating that the order of punishment was issued by the secretary and Personnel Officer, fourth respondent, who is incompetent to pass the order of punishment against the petitioner. In support of his contentions, the learned counsel has relied upon the following decisions : (i) a decision of the Hon'ble Supreme Court reported in AIR 1992 SC 2188 in the case of State of Punjab v. Ram Singh Ex- Constable. "7. The second part of the rule connotes the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service and that the length of service of the offender and his claim for pension should be taken into account in an appropriate case. The contention that both parts must be read together appears to us to be illogical. Second part is referable to a misconduct minor in character which does not by itself warrant an order of dismissal but due to continued acts of misconduct would have insidious cumulative effect on service morale and may be a ground to take lenient view of giving an opportunity to reform. Despite giving such opportunities if the delinquent officer proved to be incorrigible and found completely unfit to remain in service then to maintain discipline in the service, instead of dismissing the delinquent officer, a lesser punishment of compulsory retirement or demotion to a lower grade or rank or removal from service without affecting his future chances of re-employment, if any, may meet the ends of justice. Take for instance the delinquent https://hcservices.ecourts.gov.in/hcservices/ officer who is habitually absent from duty when required. Despite giving an opportunity to reform himself he continues to remain absent from duty off and on. He proved himself to be incorrigible and thereby unfit to continue in service. Therefore, taking into account his long length of service and his claim for pension he may be compulsorily retired from service so as to enable him to earn proportionate pension. The second part of the rule operates in that area. It may also be made clear that the very order of dismissal from service for gravest misconduct may entail forfeiture of all pensionary benefits. Therefore, the word ‘or’ cannot be read as “and”. It must be disjunctive and independent. The common link that connects both clauses is “the gravest act/acts of misconduct”." (ii) another decision of the Hon'ble Supreme Court reported in (1995) 6 SCC 749 in the case of B.C. Chaturvedi v. Union of India : "12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case. https://hcservices.ecourts.gov.in/hcservices/ 18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof." (iii) a Supreme Court decision reported in (2003) 9 SCC 228 in the case of State of U.P. v. Jaikaran Singh. "Normally, the Court in exercise of power under Article 226 does not interfere with the quantum of punishment alone if the charges are established against the delinquent and there is no lacuna in the procedure adopted in the departmental proceedings. But at times if the Court feels that the punishment inflicted is grossly unjust and shocks the conscience then in appropriate cases the Court may interfere. Having regard to the facts and circumstances of the present case and also taking into account the fact that the respondent had served the appellant organisation for about more than 12 years, we think the ends of justice would be met if the order of dismissal is altered to one of compulsory retirement. Accordingly, this appeal is allowed to the extent indicated above. (iv) yet another decision of the Hon'ble Supreme Court reported in (2006) 3 SCC 173 in the case of Commissioner. of Police v. Syed Hussain 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. 15. In a situation of this nature, keeping in view the nature of duties that a protector of law is required to perform, we are firmly of the opinion that the disciplinary https://hcservices.ecourts.gov.in/hcservices/ authority cannot be said to have committed an error in imposing the punishment of removal from service upon the respondent, particularly when on earlier two occasions also he had been found guilty of commission of misconduct and punished therefor. The High Court thus committed a manifest error in arriving at a finding that the respondent had unblemished record for 28 years. We are not sure whether the High Court’s attention was drawn to the statements made in the counter-affidavit filed on behalf of the appellants herein before the Andhra Pradesh Administrative Tribunal which showed the contra but on the basis of the materials on record which was before the High Court such finding could not have been arrived at. 16. Furthermore, the punishment of removal from service is not imposed only in the case of fraud or defalcation of government funds but even where a misconduct is committed by a person who holds a position of trust and on whom society looks forward as a protector of law and in such cases punishment of removal from service cannot be said to be wholly disproportionate, and thus the same was not even violative of the doctrine of proportionality. (v) a decision of the Hon'ble Supreme Court reported in (2009) 7 SCC 248 in the case of Ramanuj Pandey v. State of M.P. "8. In Commr. of Police v. Syed Hussain2, this Court observed that: (SCC pp. 176-77, paras 10 & 13) “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 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.” 11. While considering the power to interfere with the order of punishment, this Court in Rangaswami v. State of T.N.3, held that this Court, while exercising the jurisdiction under Article 136 of the Constitution, is empowered to alter or interfere with the penalty. Accordingly, the punishment of the appellant of dismissal from services as imposed by the disciplinary authority is https://hcservices.ecourts.gov.in/hcservices/ substituted to one of compulsory retirement from the date of his dismissal from service i.e. 7-5-1992. 12. In view of the above discussion, the appeal is partly allowed. The impugned order passed by the High Court is partly set aside. No order as to costs." (vi) yet another decision of the Hon'ble Supreme Court reported in CDJ 2009 SC 1206 in the case of Union of India Vs. Gyan Chand Chattar. "There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct – Initiation of the enquiry against the respondent appears to be the outcome of anguish of superior officers as there had been agitation by the Railway Staff demanding the payment of pay and allowances and they detained the train illegally and there has been too much hue and cry for several hours on the Railway Station. The Enquiry Officer has taken into consideration the non- existing material and failed to consider the relevant material and finding of all facts recorded by him cannot be sustained in the eyes of law – There could be no case of substantial misdemeanour against the respondent on either of the charges except Charge No.6 on which major penalty could be imposed. Charge No.6 is totally vague and no enquiry could be conducted against the respondent on such a charge." (vii) a decision of this Court reported in CDJ 2007 MHC 424 in the case of B.Padmaiah Vs. The Union of India, rep. by the Secretary & Others. "21. As rightly pointed out by the learned counsel for the petitioner, even in the enquiry, the Enquiry Officer proceeded with a point whether the constable B.Padmaiah demanded money from Ravichandran, Supervisor of Rajeshwari Contractors for supervising the grass loading in OTA area. In such circumstances, as rightly pointed out by the learned counsel for the petitioner in the light of the decision of the Supreme Court in Hardwari Lal's case, non-examination of the material witness, viz., Ravichandran has prejudicied the petitioner. We are also satisfied that the infirmities pointed out would undoubtedly amount to violation of principles of natural justice. Therefore, the impugned orders are liable to be set aside. The failure to examine the complainant whose complaint is the basis for the disciplinary action against the petitioner and the failure to provide an opportunity to the petitioner to test the https://hcservices.ecourts.gov.in/hcservices/ veracity of the complaint made against him has resulted in the deprivation of right of the petitioner amounting to gross violation of principles of natural justice and thereby, making the entire disciplinary proceedings vitiated. In view of the specific statement of P.W.4 Dan Ram, who conducted the body search of the petitioner that no money was found in his pocket and he took canteen coupons from his pocket, the contrary conclusion arrived at by the Enquiry Officer and accepted by the disciplinary authority cannot be sustained. We are also satisfied that the failure to provide defence assistance to the petitioner is a violation of the provisions of Rule 34 of CISF Rules, besides the violation of the principles of natural justice. All these material and relevant aspects have not been properly considered by the appellate and revisional authorities. 5. On the other hand, learned counsel for the respondents would contend that the order of punishment was passed after taking into account the charge that the petitioner has demanded illegal gratification based on the enquiry report and that the authorities have duly considered the explanation submitted by the petitioner and imposed the punishment. It is also his contention that by order of Managing Director, the Secretary and Personnel Officer has signed the order and therefore he is the competent authority on behalf of the Board to pass the impugned order. In order to substantiate his stand, the learned counsel has relied on the following : (i) a decision of the Hon'ble Supreme Court reported in AIR 1997 SC 2286 in the case of High Court of Judicature at Bombay through its Registrar v. Udaysingh "9. The law on the nature of the imposition of the penalties, has been summed up in paragraph 18 thus: “A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal,it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten https://hcservices.ecourts.gov.in/hcservices/ the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.” 10. Accordingly, the order of the Tribunal in reversing the imposition of the penalty was set aside. In another judgment in State of T.N. v. S. Subramaniam5, this Court has considered the scope of the power of judicial review vis-a- vis reappreciation of evidence and concluded as under: “The Tribunal appreciated the evidence of the complainant and according to it the evidence of the complainant was discrepant and held that the appellant had not satisfactorily proved that the respondent had demanded and accepted illegal gratification. The Tribunal trenched upon appreciation of evidence of the complainant, did not rely on it to prove the above charges. On that basis, it set aside the order of removal. Thus this appeal by special leave. The only question is whether the Tribunal was right in its conclusion to appreciate the evidence and to reach its own finding that the charge has not been proved. The Tribunal is not a court of appeal. The power of judicial review of the High Court under Article 226 of the Constitution of India was taken away by the power under Article 323-A and invested the same in the Tribunal by Central Administrative Tribunals Act. It is settled law that the Tribunal has only power of judicial review of the administrative action of the appellant on complaints relating to service conditions of employees. It is the exclusive domain of the disciplinary authority to consider the evidence on record and to record findings whether the charge has been proved or not. It is equally settled law that technical rules of evidence have no application for the disciplinary proceedings and the authority is to consider the material on record. In judicial review, it is settled law that the Court or the Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the view of the Court or Tribunal. When the conclusion reached by the authority is based on evidence, Tribunal is devoid of power to reappreciate the evidence and would (sic) come to its own conclusion on the proof of the charge. The only consideration the Court/Tribunal has in its judicial review is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. This is the consistent view of this Court vide https://hcservices.ecourts.gov.in/hcservices/ B.C. Chaturvedi v. Union of India, State of T.N. v. T.V. Venugopalan, Union of India v. Upendra Singh, Govt. of T.N. v. A. Rajapandian and B.C. Chaturvedi v. Union of India. In view of the settled legal position, the Tribunal has committed serious error of law in appreciation of the evidence and in coming to its own conclusion that the charge had not been proved. Thus we hold that the view of the Tribunal is ex facie illegal. The order is accordingly set aside. OA/TP/WP stands dismissed.” 11. These two judgments squarely cover the controversy in this case. 12. It is seen that the evidence came to be recorded pursuant to the complaint made by Smt Kundanben, defendant in the suit for eviction. It is true that due to time-lag between the date of the complaint and the date of recording of evidence in 1992 by the Enquiry Officer, there are bound to be some discrepancies in evidence. But the disciplinary proceedings are not a criminal trial. Therefore, the scope of enquiry is entirely different from that of criminal trial in which the charge is required to be proved beyond doubt. But in the case of disciplinary enquiry, the technical rules of evidence have no application. The doctrine of “proof beyond doubt” has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. The test laid down by various judgments of this Court is to see whether there is evidence on record to reach the conclusion that the delinquent has committed misconduct and whether