Case: A.Savariar Vs. The Secretary Tnpsc

2. The appellant joined service under the Tamil Nadu Public Service Commission (for short, ‘theas Junior Assistant w.e.f. 1.9.1973. While he was posted inSection of the Commission, which deals with the appointment of Invigilators and Chief Invigilators for various examinations, the Commission issued Notification dated 8.8.1989 for holding competitive examination for direct recruitment of Assistant Surgeons. The main written examination was conducted on 17.2.1990 and 18.2.1990. Shri Syed Abdul Kareem, who was appointed as Chief Invigilator at Bharathiar Government Arts College for Women, North Madras, examination centre, met the Superintendent of Sectionon 15.2.1990 and requested him to appoint some other person as Chief Invigilator by saying that he was suffering from heart ailment. When the Superintendent expressed his inability to accede to his request, Shri Sayed Abdul Kareem asked for the list of persons who were to assist him. Thereupon, he was given a list of 19 persons. Some of the persons named in the list informed the Chief Invigilator on telephone that they were unable to assist him. Therefore, he again contacted the Superintendent ofSection for appointment of substitute Invigilators. The Superintendent then asked the appellant to post five persons to assist the Chief Invigilator. The latter supplied the list of five persons including S/Shri Asir (School Assistant), Khader Baig (Officer Assistant) and R. Mahalingam to Syed Abdul Kareem to work as substitute Invigilators.3. In the examination held on 17.2.1990, some (six) question papers of the afternoon examination were found mixed up with the morning question papers. When the students pointed out this discrepancy, the Chief Invigilator immediately instructed to take back the question papers of the afternoon examination and issue the question papers meant for morning examination. This incident was reported in the newspapers. The Commission took serious view of the matter and on the basis of preliminary investigation done by the concerned officers, departmental proceedings were initiated against the appellant under Rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules (for short, ‘theon the followingThat Thiru. A.Savariar, Assistant,Section who was in charge of appointment of Chief Invigilators and Invigilators for the conduct of Main Written Examination relating to the post of Assistant Surgeon in the Tamil Nadu Medical Service for the yearhad served appointment order to Thiru. R. Mahalingam, who was on leave, to act as an Invigilator at Bharathiar Arts College for Women, Madras without obtaining the orders of the Officer in charge of the Section.(2) That, he has unauthorisedly issued orders of appointment as Invigilator to one Thiru Asir, School Assistant, Government Training School, Madras for Assistant Surgeon examination held on 17.02.1990 and 18.02.1990 at Bharathiar Arts College for Women, North Madras though his name was not included in the list furnished by the Collector of Madras.(3) That, he deputed by orally instructing Thiru. Khader Baig, Office Assistant of Commissions Office to the Examination hall unauthorisedly.(4) That, he has produced in the Court while filing a petition for anticipatory bail the office note requiring him and certain other staff to attend office on 17.02.1990 without the knowledge of the office. It is highly irregular to produce an official record in the Court without the sanction of the competent authority.(5) That, he unauthorisedly went to the examination hall without any reason or orders by neglecting his office work for which he obtained permission to work on the holiday (i.e., 17.02.1990).(6) That, he has arrogated to himself the powers of an officer and has functioned in a highhanded manner.The appellant filed reply dated 22.6.1990 and denied the allegations leveled against him. He claimed that substitute Invigilators were appointed in accordance with the rules and in view of the request made by the Chief Invigilator, the SuperintendentSection had instructed him to do so.5. The Enquiry Officer appointed by the Commission submitted report dated 31.12.1990 with the finding that Charges No.1, 2, 4 and 6 have been proved against the appellant. The Controller of Examinations, who was holding charge of the post of the Secretary accepted the enquiry report and sent a copy thereof to the appellant to enable him to make representation against the findings recorded by the Enquiry Officer. The appellant filed detailed submissions dated 4.2.1991 and reiterated that he had not committed any misconduct. The Controller of Examinations rejected thereply and dismissed him from service vide order dated 25.3.1991, the operative portion of which reads ashave carefully and thoroughly examined the charges framed against the individual, the explanation given by the individual, the report of the enquiry officer and the defence statements of the individuals. The charges are really grave in nature. The Enquiry officer has held all charges excepting charges 2 and 5 as proved beyond doubt and charges 3 and 5 as not pressed. The delinquent has acted in a high handed manner arrogating to himself the powers of his superiors. He has had the audacity to produce certain documents from the office to the court unauthorisedly. Such acts constitute misdemeanor and misconduct of the worst order and there cannot be any doubt that allowing such people to continue in service will highly jeopardize the proper discharge of duties of the Public Service Commission as enshrined in the Constitution. The public interest has not only suffered by such misconduct, but serious attempts have been made to cut at the very roots of the integrity of the Commission as a whole. Hence, there appears no scope to show any sympathy on the individual and any leniency shown to the individual will only amount to abetting with such undesirable staff in their misconduct and ran indiscipline. I entirely agree with the findings of the Enquiry officer. I hold charges 1,2,4 and 6 and as proved and charges 3, 5 as not pressed. For the proved charges, Thiru A. Savariar, Assistant is dismissed from service from 25.3.1991 afternoon.The departmental appeal filed by the appellant was dismissed by the Chairman of the Commission. The Chairman first adverted to the procedure followed for appointment of Invigilators and held that theaction of appointing substitute Invigilators was unauthorized. He then considered the record and agreed with the Controller of Examinations that the appellant was guilty of misconduct and four charges were rightly found proved against him.7. Writ Petition No.18836/1994 filed by the appellant for quashing the orders passed by the Disciplinary and the Appellate Authorities was dismissed by the learned Single Judge. He observed thatof the Chief Invigilator, the Section Superintendent and the concerned Under Secretary was inconsequential; that the enquiry was held in accordance with the prescribed procedure and that the principle of proportionality cannot be invoked in thecase simply because he had unblemished service of 17 years. The learned Single Judge further held that the Controller of Examinations was competent to exercise the power of the disciplinary authority.8. The writ appeal filed by the appellant was referred to the larger bench because coordinate benches of the High Court had expressed conflicting views on the question of competence of the person holding charge of the higher post to exercise the power and discharge the functions of that post. The Full Bench answered that question in the followingsuch circumstances, unless contrary intention is expressed by the Government either by way of a statutory provision or by way of an executive instruction, a Government servant who holds the post ashas got power to discharge the statutory functions and responsibilities of the said post.Besides since already this issue has been covered by the judgment of the Honourable Apex Court reported in 1996 A.I.R. S.C. 1729 as referred above, we are of the opinion, the view of the Division reported in 1997 Writ L.R. 33 (C.Baskaran v. The District Collector, Trichy) rendered in W.A.No.1054 of 1983 is not a correct law. Consequently, we hold that ancharge of a post has got power to discharge the powers and statutory functions of the said post.Consequently, as far as the point of reference is concerned, we hold that the Officer who is holding the posthas got power to discharge the powers and statutory functions of the said

Reasoning:
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.