R.Mahalingam vs Chairman,Tnpsc & Anr

2. The appellant joined service as Junior Assistant in the Tamil Nadu Public Service Commission (for short, ‘the Commission’) in 1973. He was promoted as Assistant in 1975 and as Assistant (Selection Grade) in 1988. In February, 1990, the appellant was sanctioned unearned leave from 12.2.1990 to 25.2.1990 for private work. During that period, ‘P’ Section of the Commission is said to have directed him to work as Invigilator at Bharathiyar Women Arts College, Chennai, which was one of the centers for the written examination on 17.2.1990 and 18.2.1990 held for recruitment of Assistant Surgeons.

3. In the examination held on 17.2.1990, six candidates sitting in Hall No.76 were given the question papers of the afternoon examination in the morning examination. As soon as the Chief Invigilator Shri Syed Abdul Kareem came to know about this, he took back the question papers of the afternoon examination and issued the question papers meant for morning examination. This incident was reported in the newspapers. The Commission took serious view of the matter and got registered a First Information Report. Simultaneously, the Controller of Examinations recorded the statement of the Chief Invigilator on 20.2.1990 and 22.2.1990. The same is reproduced below:

These six papers were kept in my personal custody till the end of the examination. When I wanted to inform the facts to the TNPSC office immediately, the invigilator Thiru Mahalingam, Assistant, TNPSC office who was assisting me requested me not to inform since the papers were immediately received back from the candidates. Further he said that the staff attached to TNPSC office who were responsible for this mingling the question papers would be punished and the name of the TNPSC will be spoiled. Since he is a serviced employee of the TNPSC, I had to take his advice considering that he is pleading knowing all pros and cons. The after noon question papers bundle was opened at 1.50 p.m. on 17.2.1990 by myself and two other invigilators Mr. R. Balan Assistant D.M.E’s office and one Mr. N. R. Sundararaman Assistant KCH, Madras. These papers were distributed to the candidates at 2 p.m. there was no complaint about mingling or shortage of question papers.

Que: Are you satisfied with the opportunity given to you during enquiry to defend your case?

10. The departmental appeal filed by the appellant was dismissed by the Chairman of the Commission vide order dated 14.8.1992. He reiterated the findings recorded by the Enquiry Officer and the Secretary that the appellant had unauthorisedly done the work of Invigilator and prevented the Chief Invigilator from reporting the matter to the Commission.

11. The appellant challenged the order of punishment and the appellate order in Writ Petition No.19251/1992 but could not convince the learned Single Judge to quash orders dated 10.10.1991 and 14.8.1992. The writ appeal filed by him was dismissed by the Division Bench of the High Court, which expressed concurrence with the learned Single Judge that the enquiry was held against the appellant in consonance with the rules of natural justice and the findings recorded by the Enquiry Officer were based on proper analysis of the records produced during the enquiry.

“17.(a) xxx xxx xxx

(b) (i) Without prejudice to the provisions of the Public Servants' Inquiries Act, 1850, (Central Act XXXVII of 1850), in every case where it is proposed to impose on a member of a service or on a person holding a Civil Post under the State any of the penalties specified in items (iv), (vi), (vii) and (viii) in rule 8, the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged, together with a statement of the allegation, on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time to put in a written statement of his defence and to state whether he desires an oral inquiry or to be heard in person or both. An oral inquiry shall be held if such an inquiry is desired by the person charged or is directed by the authority concerned. Even if a person charged has waived an oral inquiry, such inquiry shall be held by the authority concerned in respect of charges which are not admitted by the person charged and which can be proved only through the evidence of witnesses. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses to give evidence in person and to have such witnesses called, as he may wish, provided that the officer conducting the inquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. “Whether or not the person charged desired or had an oral inquiry, he shall be heard in person at any stage if he so desires before passing of final orders. A report of the inquiry or personal hearing (as the case may be) shall be prepared by the authority holding the inquiry or personal hearing whether or not such authority is competent to impose the penalty. Such report shall contain a sufficient record of the evidence, if any, and a statement of the findings and the grounds thereof”.

“Whenever any inquiring authority, after having heard and recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein, and is succeeded by another inquiring authority which has, and which exercises such jurisdiction, the inquiring authority so succeeding may act on the evidence so recorded by its predecessor or partly recorded by its predecessor and partly recorded by itself:

These errors and omissions on the part of the learned Single Judge and the Division Bench, in our considered view, are fatal to their concurrence with the finding recorded by the Enquiry Officer, the Secretary and the Chairman of the Commission that the appellant had unauthorisedly worked as Invigilator on 17.2.1990 and 18.2.1990.

19. 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 as on the date of initiation of the departmental proceedings, we do not consider it proper to adopt that course.

20. In the result, the appeal is allowed, the order of punishment passed by the Secretary of the Commission and the appellate order passed by the Chairman of the Commission are quashed and it is declared that the appellant shall be entitled to all consequential benefits including the arrears of salary for the period during which he was kept out of employment. He shall also be entitled to the retiral benefits, which may be admissible to him under the relevant service rules. The concerned authority of the Commission is directed to pay the salary, allowances, etc., to the appellant within 4 months from the date of production of copy of this judgment.