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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  candidates  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' In- quiries 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 spe- cified 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 per- son charged, together with a statement of the allegation, on which  each charge is based and of any other circumstances which it is pro- posed to take into consideration in passing orders on the case. He  shall be required, within a reasonable time to put in a written state- ment 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 writ- ing, refuse to call a witness. “Whether or not the person charged de- sired 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 in- quiry 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 exer- cise jurisdiction therein, and is succeeded by another inquiring au- thority which has, and which exercises such jurisdiction, the inquir- ing authority so succeeding may act on the evidence so recorded by  its predecessor or partly recorded by its predecessor and partly re- corded 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 spe- cified 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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