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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 1078-1079 OF 2013
.
A. Savariar …Appellant
versus
The Secretary, Tamil Nadu
Public Service Commission and another …Respondents
J U D G M E N T
G. S. Singhvi, J.
1. These appeals are directed against judgments dated 28.2.2008 and
4.2.2010 of the Full Bench and the Division Bench respectively of the Madras
High Court whereby the appellant’s challenge to the order of the learned Single
Judge was negatived and his dismissal from service was upheld.
2. The appellant joined service under the Tamil Nadu Public Service
Commission (for short, ‘the Commission’) as Junior Assistant w.e.f. 1.9.1973.
While he was posted in ‘P’ Section 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
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Kareem, who was appointed as Chief Invigilator at Bharathiar Government
Arts College for Women, North Madras, examination centre, met the
Superintendent of Section ‘P’ on 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 of ‘P’
Section 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
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appellant under Rule 17(b) of the Tamil Nadu Civil Services (Classification,
Control and Appeal) Rules (for short, ‘the Rules’) on the following charges:
“(1) That Thiru. A.Savariar, Assistant, ‘P’ 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 year 1989-
90 had 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 Commission's 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.”
4. The appellant filed reply dated 22.6.1990 and denied the allegations
leveled against him. He claimed that substitute Invigilators were appointed in
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accordance with the rules and in view of the request made by the Chief
Invigilator, the Superintendent ‘P’ Section 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 the appellant’s reply and
dismissed him from service vide order dated 25.3.1991, the operative portion
of which reads as under:
“I have 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
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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.”
(reproduced from the SLP paper book)
6. 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 the appellant’s action
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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 that non-examination of 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 the
appellant’s case 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 following words:
“Under such 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
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the post as in-charge has 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 an
officer-in-charge 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
post in-charge has got power to discharge the powers
and statutory functions of the said post.”
9. Thereafter, the matter was placed before the Division Bench, which
held that the order of punishment was not vitiated due to violation of the rules
of natural justice. The Division Bench observed that the appellant had been
given opportunity to inspect the record, copies of the depositions recorded at
the oral enquiry were supplied to him and he was allowed to file further
statement of defence before the Enquiry Officer and held that there was no
violation of the procedure prescribed under the Rules.
10. We have heard learned counsel for the parties. The scope of judicial
review in matters involving challenge to the disciplinary action taken by the
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employer is very limited. The Courts are primarily concerned with the question
whether the enquiry has been held by the competent authority in accordance
with the prescribed procedure and whether the rules of natural justice have
been followed. The Court can also consider whether there was some tangible
evidence for proving the charge against the delinquent and such evidence
reasonably supports the conclusions recorded by the competent authority. If the
Court comes to the conclusion that the enquiry was held in consonance with
the prescribed procedure and the rules of natural justice and the conclusion
recorded by the disciplinary authority is supported by some tangible evidence,
then there is no scope for interference with the discretion exercised by the
disciplinary authority to impose the particular punishment except when the
same is found to be wholly disproportionate to the misconduct found proved or
shocks the conscience of the Court.
11. In the light of the above, it is to be seen whether the appellant’s
dismissal from service was legally correct and the High Court rightly declined
to interfere with the orders passed by the punishing authority and the Appellate
Authority.
12. Rule 8 of the Rules specifies various penalties including dismissal from
service which can be imposed on a member of the Civil Service of the State or
a person holding Civil Post under the State. Rule 17(b), which contains the
procedure for holding inquiry reads as under:
“17.(a) xxx xxx xxx
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(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:
Provided that if the succeeding inquiring authority is of the opinion
that further examination of any of the witnesses whose evidence has
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already been recorded is necessary in the interest of justice, it may
recall examine, cross-examine and re-examine any such witnesses
as hereinbefore provided,”
(ii) After the inquiry or personal hearing referred to in clause (i) has
been completed, the authority competent to impose the penalty specified in that clause, is of the opinion, on the basis of the evidence
adduced during the inquiry, that any of the penalties specified
therein should be imposed on the Government Servant it shall make
an order imposing such penalty and it shall not be necessary to give
the person charged any opportunity of making representation on the
penalty proposed to be imposed:
xxx xxx xxx”
13. An analysis of the above reproduced rule makes it clear that holding of
an oral inquiry is sine qua non for recording a finding by the inquiring authority
and the report of inquiry must contain sufficient record of evidence and a
statement of the findings together with grounds thereof.
14. The substratum of the main allegation leveled against the appellant was
that he had unauthorisedly issued order of appointment to R. Mahalingam, who
was on leave, to act as an Invigilator at Bharathiar Arts College for Women
and appointed Asir and Khader Baig as substitute Invigilators despite the fact
that their names were not included in the list furnished by the Collector of
Madras. The two other allegations 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
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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
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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
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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
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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.
23. In the result, the appeals are allowed, the order of punishment passed by
the Controller of Examinations 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.
24. While disposing of these appeals, we make it clear that this Court has
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not expressed any opinion on the correctness or otherwise of order dated
28.2.2008 passed by the Full Bench of the High Court and the question
whether a person, who holds higher post as in-charge in addition to his
substantive post is entitled to exercise the powers of that post is left open to be
decided in an appropriate case.
..….………………….…J.
[G.S. SINGHVI]
..….………………….…J.
[H.L. GOKHALE]
New Delhi,
February 15, 2013.
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