Case: A.Savariar Vs. The Secretary Tnpsc

leveled against the appellant were that he had unauthorisedly produced office note dated 17.2.1990 in the Court and went to the examination hall by neglecting his office work. 15. On behalf of the Commission oral evidence is said to have been adduced to substantiate the allegations leveled against the appellant but neither the report of the Enquiry Officer nor the orders passed by the Controller of Examinations or the Chairman of the Commission make a mention of that evidence and none of them relied upon the same for recording a finding that the appellant had arrogated to himself the powers of his superiors and unauthorisedly appointed Invigilators. As a matter of fact, Enquiry Officer simply referred to the statement of the appellant, analysed the same and concluded that Charges No. 1, 2, 4 and 6 have been proved against him. It is thus evident that the inquiry report was not prepared in consonance with Rule 17(b)(i) of the Rules. 16. The Controller of Examinations went a step further and recorded a finding that the actions of the appellant had resulted in compromising the integrity of the Commission as a whole. The concerned officer did so despite the fact that the appellant had not been charged with the allegation that he had by his action/omission compromised with the integrity of the Commission and no evidence was produced to substantiate the same. The Appellate Authority, i.e., the Chairman recorded detailed reasons but the order passed by him also does not make reference to the evidence produced for proving the charges leveled against the appellant. 17. The learned Single Judge and the Division Bench of the High Court failed to notice the aforesaid fatal flaw in the orders passed by the Controller of Examinations and the Chairman and decided the matter by assuming that even though the Commission had not adduced any tangible evidence to prove the charges against the appellant, the same stood proved because of the weakness of his defence. 18. In Delhi Cloth and General Mills Company v. Ludh Budh Singh (1972) 1 SCC 595 , this Court held that it is the primary duty of the person making the allegations to establish the same by producing evidence and not for the delinquent to produce negative evidence to prove his innocence. 19. In Roop Singh Negi v. Punjab National Bank (2009) 2 SCC 570 , this Court considered the question whether mere production of the document by the department is sufficient for holding the employee guilty and observed: “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 hereinbefore 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. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been 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.” 20. De hors the above conclusion, we are satisfied that the punishment of dismissal imposed on the appellant is legally unsustainable. The Controller of Examinations and the Chairman of the Commission did not consider the impact of the alleged unauthorized action of the appellant in nominating/deputing substitute Invigilators at the particular examination centre. One can appreciate the Commission’s concern about mixing of the question papers of afternoon examination with the question papers of morning examination, but in the absence of any evidence to show that ‘P’ Section of the Commission, where the appellant was posted, had anything to do with the question papers or that he had custody of the question papers, the Commission was not at all justified in holding him guilty of the incident which occurred at the examination centre. Indeed, it is nobody’s case that the appellant was, in any way, responsible for mixing of the question papers. Therefore, the findings recorded by the Inquiry Officer and the two Authorities that the appellant was guilty of serious misconduct cannot be sustained.21. The learned Single Judge and the Division Bench failed to take cognizance of the fact that the branch in which the appellant was working was not concerned with custody of the question papers and he is not shown to have handled the bundles of the question papers at the examination centre. Therefore, the gravity of the misconduct found proved against the appellant, viz., nomination/deputation of the Invigilators at the particular examination centre was not such which could influence any person of reasonable prudence to impose the extreme penalty of dismissal from service.22. In view of the above discussion, we may have remitted the case to the Commission for reconsideration of the entire matter but, keeping in view the fact that the appellant has already retired from service and he had put in unblemished service of 17 years, we do not consider it proper to adopt that course.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]20. De hors the above conclusion, we are satisfied that the punishment of dismissal imposed on the appellant is legally unsustainable. The Controller of Examinations and the Chairman of the Commission did not consider the impact of the alleged unauthorized action of the appellant in nominating/deputing substitute Invigilators at the particular examination centre. One can appreciate theconcern about mixing of the question papers of afternoon examination with the question papers of morning examination, but in the absence of any evidence to show thatSection of the Commission, where the appellant was posted, had anything to do with the question papers or that he had custody of the question papers, the Commission was not at all justified in holding him guilty of the incident which occurred at the examination centre. Indeed, it iscase that the appellant was, in any way, responsible for mixing of the question papers. Therefore, the findings recorded by the Inquiry Officer and the two Authorities that the appellant was guilty of serious misconduct cannot be sustained.21. The learned Single Judge and the Division Bench failed to take cognizance of the fact that the branch in which the appellant was working was not concerned with custody of the question papers and he is not shown to have handled the bundles of the question papers at the examination centre. Therefore, the gravity of the misconduct found proved against the appellant, viz., nomination/deputation of the Invigilators at the particular examination centre was not such which could influence any person of reasonable prudence to impose the extreme penalty of dismissal from service.22. In view of the above discussion, we may have remitted the case to the Commission for reconsideration of the entire matter but, keeping in view the fact that the appellant has already retired from service and he had put in unblemished service of 17 years, we do not consider it proper to adopt that course.