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  NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1080 OF 2013

R. Mahalingam       …Appellant

versus

The Chairman, Tamil Nadu  Public Service Commission and another             …Respondents

J U D G M E N T

G. S. Singhvi, J.

1. This appeal is directed against judgment dated 3.2.2010 of the Division Bench  

of  the  Madras  High  Court  whereby  the  writ  appeal  filed  by  the  appellant  was  

dismissed and the order passed by the learned Single Judge negating his challenge to  

the order of punishment was upheld.

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.

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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:

“STATEMENT  OF  SYED  ABDUL  KAREEM  GIVEN  TO  THE  COTROLLER.

The following fact are submitted.

I was posted as chief Invigilator to conduct examination in Bharathi  Arts  College  for  women,  North  Madras  on 17.2.90 FN & AN and on  18.2.90 FN.

I collected the question papers in two bundles one for FN Session  and another for AN session at 8.00 A.M. from the TNPSC office and took  them by Auto to the examination centre. At about 9.50 A.M. on 17.2.90  myself with two other invigilators. Mr. Balasubramanian Assistant from  D.M.E.’s  Office  and  other  Mr.Syed  Abdul  Kareem  opened  the  sealed  packet of question paper. The question papers were distributed to all the  eight  halls  which were distributed to  the candidates  by the invigilators  posted in the Halls.  But in one of the Halls i.e., Hall No. 76 where 41  candidates were allotted it was found that after noon question papers were  mingled.  On  hearing  the  fact  I  immediately  received  back  6  question  papers from 6 candidates and issued them other question papers intended  for fore noon session. 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

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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.

At the close of examination myself and Thiru Mahalingam with the  assistance of two staff of college packed the un-used answer papers and  unused question papers 64 question papers of  FN session and 11 A.N.  Session  papers  and  another  bundle  of  71  AN  session  papers.  While  packing a lady sweeper brought certain question papers and handed over to  the persons who were packing. Immediately these papers has also been  packed along with the balance question papers.

During end morning session the six candidates who were served the  A.N. session question papers were asked to wait and the answer papers  were received back and they were requested to be seated in a separate  room opposite to the Hall till the commencement of after noon session.  The candidates  were seated  in  a  small  rook till  the after  session  when  Tiffin or coffee offered to them, they refused to get.

The AN session question papers received back from the candidates  six in no. were kept in my pocket first and then kept in my bag after 2 p.m.

Before me Sd/- Sd/ Syed Abdul Kareem. Controller of Examinations         20.2.90.

In continuation of my statement dated 20.2.90 given to the Controller of  Examinations it is further stated that  I missed to mention the following  facts there in it,  at  about 12.30 p.m. Thiru Gurumoorthy, a Member of  TNPSC visited the examination centre and met me and enquired about the  conduct of the examination. Though I was prepared to inform the Member  about the receipt of Mingling of question papers, again Mr. Mahalingam  stopped me and requested not to tell. After about some time the Member  left  the centre. At about 3.00 P.M. one of the Under Secretaries of the  TNPSC office visited the Examination Centre and took a written statement  from me. Again I did not inform him the fact of the mingle of the question  papers in the morning session at the insistence of the same person Mr.  Mahalingm.  Though  I  should  have  informed  the  fact  to  the  both  the  officials but did not do so under the impression that being a senior staff of  the TNPSC office Mr. Mahalingam might have had the knowledge of the  consequences and he would have known the gravity of the incident, I had  to take his words. Had he not been posted, I would not have been mislead.  But on 15.2.90 he visited my office at about 11.30 AM and informed me

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that  he had been posted  as  Invigilator  to  Bharathi  College for  Women  where I was posted as Chief  Invigilator.  He assured me that  he would  assist me on 16.2.90 after noon also in arranging the examination halls. So  he did what  he promised and after  posting  all  the other  invigilators  to  various halls, I retained Mr. Mahalingam with me to assist so he was with  me all along the day till I left the examination centre at about 6.45 pm on  17.2.90. The list of invigilators posted to my centre does not contain the  names of the three staff of TNPSC office who were posted as Invigilators.  They are Mr. Mahalingam, Mr. Sekarao and Mr. Udhaya Kumar. But they  are having their individual orders that too they did not handed over to me.  I did not ask for any help in writing from the TNPSC office. The absentees  statement were also prepared by Mr. Mahalingam only.

Before Me. Sd/- Sd/- Syed Abdul Kareem. Controller of Examns.         22.2.90”

(underlining is ours) (reproduced from the SLP paper book)

4. Inspector, State Crime Investigation Department to whom the investigation of  

the criminal case was entrusted also recorded the statement of the Chief Invigilator on  

26.2.1990. The relevant portions thereof are extracted below:

“STATEMENT OF SYED ABDUL KAREEM AGE 55/90 S/O SYED  THASTAGINI, NO.8, S.R.P.KOIL STREET, NORTH THIRU VI.KA.N- AGAR, MADRAS-82.

…..  During the month of February 1990 an order from the office of TN-

PSC came to me on 14.2.90 to conduct the TNPSC Examination for As- sistant Medical Officer post on 17.2.90 full day and 18.2.90 half day (fore  noon only). I went to TNPSC office on 15.2.90 and met the Superintendent  of the concerned Section (I do not remember his name) in person. I told  him that I am suffering from heart ailment as such it is not possible for me  to conduct the examination and hence made a request  to appoint  some  other person. He told me that this order is passed by District Collector,  Chennai as such it is not possible for us to do anything and asked me to get  the amount by sending a man with me. I got the cheque and came to him  and asked a list of persons who are going to assist me. At this time TNPSC  gave 19 persons to assist me. But certain persons informed me over phone  at G.H. that it is not possible for them to assist me. Again I went to the  TNPSC Office on 16.2.90 and informed the position to the concerned Su- perintendent at about 2 noon. He told me that they had posted 5 persons to

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assist  me from their section. Kindly conduct the examination with them  and asked his Assistant by name Saveriyar to give me the names of 5 per- sons in writing. He gave me a list in his hand writing as (1) Udhayakumar;  2) Sekaran; 3) Mahalingam; 4)Aasir and the name of another person not  known but know the person. On 16.2.90 Mahalingam came to my office at  G.H. at 12.00 hours and told me that he is on leave and studying for Group  I examination but he will come and assist me. Mahalingam is known to me  from the year 1985-86 onwards. On the next day that is on 17.2.90 I went  to TNPSC office at 8.00 AM and got two bundles containing question pa- pers by affixing seal on the cloth as 17.2.90 Forenoon 10.00 AM to 12.00  Noon as one bundle and 17.2.90 Afternoon 2.00 PM to 5 PM as another  bundle and went Bharathi Women’s College in an Auto and reached there  at about 8.45 AM. Mahalingam was waiting there. 19 persons came there  to assist me (invigilators). I gave them answer sheets, thread and white pa- pers and send them to each and every hall. Then at 9.50 hours I took the  question bundle for the forenoon and affixed my signature in the face slip  of  the  said  bundle  in  the  presence  of  two  invigilators  (1)  G.Balasub- ramaniam (Assistant, D.M.E), Chennai-5 and (2) Aazir, School Assistant,  Thayar Sahib Street, Anna Salai, Chennai-2 and also got their signature.  Then I have ripped the seal of the bundle and got the signature of the said  two persons in the paper inside the bundle and I have also put my signa- ture. Then at 10 hours I gave the question papers to invigilators and in- structed them to take the question papers to the respective halls. I have ap- pointed Syed Ibrahim and Thiru N.R.Sundararaman as invigilators for hall  No.76. The said Ibrahim told me that six students told him that the ques- tion papers issued to them are for the afternoon examination as it seems  that six question papers for the afternoon examination have been found  mixed with the question papers for the forenoon examination. Immediately  I went to that hall No. 76 and made enquiry and came to know it as true.  Immediately I got back the afternoon question papers from the six students  and issued the question papers for the forenoon. I kept the said six ques- tion papers which are intended for the afternoon at my custody. Then I  have decided to inform it  to TNPSC office and it  was written by Ma- halingam as per my dictation. Mahalingam told me that if the said letter is  sent the staff of TNPSC office will get some trouble, that the name of Con- troller will be spoiled, that the said Controller belongs to his community  and that he is going to get the post of District Collector shortly. Hence I  have not informed it to TNPSC over phone. Mahalingam also turned the  letter written by him. He also told me that he had got back the after noon  question papers immediately as such there is no possibility for the students  to read over it. No problem will arise and pleaded me that do not inform it  to any one.  Then the examination was going on. I  went around all  the  halls. No complaint received from the students. It was written in the face  slip of the forenoon bundle as 410 question papers. On counting it is found  412 question papers. I gave 339 persons from it and out of the remaining  75, 64 question papers for forenoon and 9 for the afternoon. I kept the said

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question papers in a cover. At about 12 Noon one member of TNPSC Mr.  Gurumurthi came there. He asked me whether any problem. I asked Ma- halingam whether we will inform to him. But Mahalingam told me that it  is not necessary to say this now as we have not given any report in the  morning itself as such if we say it now it will became a mistake. Hence I  have not informed it to him. He saw the afternoon bundle with the seal and  he did not verify the forenoon question paper bundle and left away. All the  invigilators made a complaint to Gurumurthi that the amount paid to them  is not sufficient. He gave a reply that we had already informed about it to  the Government. Then at 2.00 PM Mr. Nithyanandam, Under Secretary of  TNPSC office came there. He also made enquiry about the examination.  He got a statement from me. I gave a report as nothing special.  At that  time at about 1.50 Noon, I have opened the afternoon bundle in the pres- ence of (1) Balan and (2)  Sundararaman in the face slip it  is  found as  17.2.90 2.00 PM to 5.00 PM and written as 410 Question papers and I got  the signature from both of them and I have also affixed my signature. Then  I gave the answer sheets and question papers to the invigilators and send  them to the examination hall. Examination was over. There was no prob- lem. At 5.00 PM I have collected the answer sheets and the remaining  question  papers.  All  the  invigilators  returned  except  Mahalingam.  We  made bundle  of  the answer  sheets  after  counting.  I  kept  the remaining  question papers in a cover. At about 6.30 PM the sweeper handed over to  me two question papers and I found some scribbling and I have kept that  also in a cover and put Seal. I have kept the model question paper given to  me in the said cover. Mahalingam went away after putting all these in an  Auto. I went to TNPSC Office with Electrician at about 7 PM. The said  electrician was working at Bharathi Women’s College. One under Secret- ary was in the upstairs and I do not know his name. I have handed over the  bundles to him for which he gave acknowledgement and I got it. I went to  TNPSC Office on the next day 18.2.90 at 8.00 AM. They gave me the  question papers at 8.20 AM. One Under Secretary came with me in the  auto, who got the bundles from me on 17.2.90 evening. Then Mahalingam  came there and all invigilators came. I have sent the answer sheets to the  respective halls. Then at 9.50 AM I have opened the bundle in the pres- ence of two invigilators and the Under Secretary and in the label of the  bundle it is written as 18.2.90 Forenoon 10.00 AM to 12 Noon and got the  signature of two invigilators and I have also affixed my signature. I do not  remember their names. Then I have opened the bundle and after counting  it was 410 papers. I gave the required question papers at 10.00 Hours. On  that day there was no problem in the examination. At 12.00 Noon 1 have  collected the answer sheets, made bundle by affixing seal and took it TN- PSC office by Auto and handed over it there and got the acknowledge- ment.  

INSPECTOR  STATE CRIME INVESTIGATION DEPARTMENT

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CRIME BRANCH - CHENNAI-4  26.2.90”

(underlining is ours) (reproduced from the SLP paper book)

5. After about one month, the Commission issued Memorandum dated 27.3.1990  

for holding departmental inquiry against the 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 R. Mahalingam, Assistant had gone to the examination hall  unauthorisedly on the pretext of assisting the Chief Invigilator while he  was on Unearned Leave on Private Affairs.

2. That, he had gone to the examination hall and take up the official work  and acted as Invigilator while he was on leave.

3. That, he had prevented the Chief Invigilator from sending a report to the  Controller  of  Examinations about  the distribution of  afternoon question  paper in the forenoon and the resultant leakage of question paper.”

6. In his reply, the appellant pointed out that his name did not figure in the first  

information report got registered with the police and the remand report and that the  

real culprits had already been apprehended. The appellant also claimed that he was  

not connected with the leakage of question papers.

7. The copies of two statements made by the Chief Invigilator were not supplied  

to the appellant and he was asked to make a statement by the Enquiry Officer.  In his  

statement dated 12.10.1990, the appellant denied all the allegations levelled against  

him. For the sake of reference, the appellant’s statement is reproduced below:

“Charges  framed  in  this  office  Memorandum  No:   2316/D5/1990 dated: 27.3.90 have been read out to Thiru R.   Mahalingam.

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Question :    Do you accept the charges?

Answer: No. Three charges were framed against me. I sought time to  offer my explanation after filing the charge sheet or receipt of  a final police report. My letter seeking permission to offer my  explanation refused and directed me to appear for the oral en- quiry.  Even though I  have not preferred for the oral   enquiry  as  directed by the  imperative authority  of   the office I simply obeyed the orders and appeared   for the oral enquiry.

Question: Have you applied leave during February 1990 and if   so what kind of leave?

Ans. I have applied U.E.L. on private affairs during Febru- ary 1990.

Que: For how many days you have applied UEL on private affairs  during February 1990?

Ans: I do not know.

Que: Have you got prior permission for the said leave?

Ans: I  have  applied  leave  sufficiently  in  advance.  But  the  leave  sanction  order  was  received during my leave period to  my  home.

Que: It is reported that you have gone to the examination hall unau- thorisedly  on  the  pretext  of  assisting  the  Chief  Invigilator  while you were on unearned leave on private affairs. What do  you say about this charge?

Ans: Regarding the first and second charges, I wish to inform you  that though the charges have been framed on two counts, they  have been famed so on the sole ground that my presence in  the examination hall unauthorized one. Before adverting to the  allegations made in charges 1 and 2 I wish to inform you Sir  Please  refer  our  office  letter  No:  377/Pl/90,  dated  16.2.90  which is a letter appointing me as an Invigilator which was  signed and issued by the competent authority. A Xerox copy  of the letter is produced. I also found my name in the list sent  to the Chief Invigilator. The chief Invigilator verified the list  with the appointment letter issued by the office and permitted  me to act as Invigilator.

Que: Have you received the appointment order by post or in per- son?

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Ans: I have received in person.

Que: For what reason you have come to office though you were on  leave at that time?

Ans: I used to visit University Library during my leave period - I  have also happened to visit to office to see whether any letter  was received to my name.

Que: At the examination hall what kind of work was allotted to you  by the chief Invigilator?

And: I have been instructed to do the distribution of main and addi- tional answer books and collection of answer books from each  hall except question papers.

Que: Have you been allotted to the work of distribution of question  paper to each hall?

Ans: No.

Que: What do you say about charge 3 framed against you?

Ans: I have nothing to say about the charge No.3 since the office in  its Memorandum dated 11.10.90 has stated to the effect that  enquiry by the Police in connection with the leakage of  question  papers  (Assistant  Surgeon  recruitment)  is  going  on  separately  whereas  departmental  action  has  been  taken  against  him mainly  for  his  having  unauthorisedly acted as Invigilator while he was on  leave.

Que: Do you want personal hearing besides oral enquiry?

Ans: No:

Que: Whether you want to say anything more about the charges?

Ans: Yes.  Three charges were framed. First  two charges are one  and the same for which I have given authoritative evidence.  For the third charge i.e., resultant leakage of question paper  was referred to police for  investigation.  Moreover the third  charge has not been pressed in the office Memorandum dated  11.10.90. When I moved the court for anticipatory bail it was  stated before the Court in the counter affidavit that the Peti- tioner was interrogated in connection with mixing of question  paper and not to the leakage of question paper. Secondly when  I was seeking permission to officer my explanation in my let- ter dated 22.8.90 it was misconstrued by the office that I have

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submitted my explanation vide its letter dated 11.9.90. In my  letter dated 18.9.90 to furnish a copy of my explanation the  office in its letter dated 11.10.90 it has been stated that I have  failed to submit the explanation. In my letter dated 18.9.90 I  have also requested to state the provision of rules relating  to  departmental  action has nothing to  do with the filing of  charge sheet or receipt of police report in the matter relating to  leakage of question papers. This has not been informed to me.  Again in my letter dated 22.8.90 I requested the office to state  whether the proposed enquiry is in super session of the earlier  orders of the office calling for an explanation or it is part and  parcel of these orders (calling for an explanation) or it  is a  separate one nothing to do with the charges. My request has  not been answered.

In the charge memorandum framed against  Thiru Savariar  it  was  stated how the appointment order was issue to him even though he was  on leave. Hence the office is fully aware that my presence in the  examination hall was authorized one.

A notice of the proposed enquiry was given only a day in   advance. Ample opportunity was not given.

Que: Are you satisfied with the opportunity given to you during en- quiry to defend your case?

Ans: So far as the conduct of the oral enquiry is concerned, I am  fully satisfied.

Sd/- R. Mahalingam”

(reproduced from the SLP paper book)

8. Thereafter, the Enquiry Officer submitted report holding the appellant guilty of  

all the charges. A copy of the enquiry report was made available to the appellant and  

he was asked to submit further written statement of defence. In reply, the appellant  

submitted  representation  dated 21.11.1990 and prayed that  he may be allowed to  

submit further written statement of defence either after filing of chargesheet by the  

police or receipt of the detailed police report. He submitted another representation on  

4.2.1991 to the Deputy Secretary (Admn.) of the Commission. The same reads as

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under:

“To:

The Deputy Secretary (Admn.) Madras-600002 TNPSC, Madras-600002 Dated 4th Feb, 1991.

Sir,

Sub: Establishment  -TNPSC  -  R.  Mahalingam,  Assistant-Disciplinary  Action.

Ref: This  office  Memorandum  No.  2316/D5/90,  dated  11.1.1991.

Kindly refer to the report of the enquiry officer which appears to  have been made out entirely relying upon the report (Dated 22nd Febru- ary 1990)  of  the Chief  Invigilator,  miserably superseding the   factual evidences deposed by me at the oral enquiry.

While the Chief Invigilator was apparently, not at all interrogated in  regard to the correctness of his statement, the credibility of his report is  doubtful. As such, the report of the Enquiry officer which is entirely based  upon it, is seemingly questionable and appears arbitrary too. However, to  enable me to defend the charges a copy of the report of the Chief Invigila- tor may kindly be furnished to me.

Further, to back up my statement that the Chief Invigilator, before  permitting me to take up the ‘Invigilation Duty’ did verify with   his  papers  and  records  and  ticked  against  my  name  found   therein among other personnel of the Tamil Nadu Public Service   Commission appointed as Invigilators by the Office viz. Thiru- valargal M. Segaran and Udhayakumar, a copy (preferably Xe- rox copy) of the list of Invigilators sent to the Chief Invigilator   may kindly be obtained from the Chief Invigilator and furnished   to me.

On receipt  of  the above copies of  the records I  shall  submit  my  statement to defend the charges, as called for in the reference cited.

Thanking you

Yours faithfully,

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(Sd/-) R. Mahalingam.”

(reproduced from the SLP paper book)

9. In  response  to  the  appellant’s  request,  the  Commission  made  available  the  

statement of the Chief Invigilator recorded by the Controller of Examination.  After  

receiving the same, the appellant submitted application dated 18.4.1991 to the Deputy  

Secretary  (Administration)  for  grant  of  permission  to  cross-examine  the  Chief  

Invigilator, the officer of the Commission in whose presence request is sought to have  

been made to the Chief Invigilator not to report the matter to the Commission and the  

person  who  appointed  him  along  with  others  as  Invigilators.  He  also  submitted  

representation dated 20.5.1991 to the Chairman of the Commission and sought his  

intervention for ensuring compliance of the rules of natural justice. However, without  

waiting  for  the  decision  of  his  representations,  the  Secretary  of  the  Commission  

passed order dated 10.10.1991 and imposed punishment of removal from service.

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

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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.

12. We have heard learned counsel for the parties. The scope of judicial review in  

matters involving challenge to the disciplinary action taken by the 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.

13. Having noticed  the parameters  laid down by this  Court  for  exercise  of  the  

power of judicial review in such matters, we shall now consider whether the appellant  

has succeeded in showing that the High Court committed an error by declining his  

prayer for quashing the order of punishment.

14. Rule 8 of the Rules specifies various penalties including dismissal from service

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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 enquiry reads as under:

“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 pro- posed 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 com- municated to the person charged, together with a statement of the allega- tion, 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 al- legations 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, re- fuse 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 be- fore 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 jurisdic- tion therein, and is succeeded by another inquiring authority which has,  and which exercises such jurisdiction, the inquiring authority so succeed- ing may act on the evidence so recorded by its predecessor or partly recor- ded 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 already

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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”

15. An analysis of the above reproduced rule makes it clear that holding of an oral  

enquiry is sine qua non for recording a finding by the enquiring authority and the  

report  of  enquiry must  contain sufficient  record of  evidence and statement  of  the  

findings together with grounds thereof.

16. The  main  allegations  leveled  against  the  appellant  were  that  he  had  

unauthorisedly worked as Invigilator and prevented the Chief Invigilator Syed Abdul  

Kareem from sending  report  about  the  incident  involving  mixing  of  the  question  

papers of two sessions.  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  Secretary and the  

Chairman of the Commission make a mention of that evidence. As a matter of fact,  

neither of them relied upon the same for recording a finding of guilty against the  

appellant. Rather, the Enquiry Officer and the two authorities relied upon the portions  

of the statement made by the Chief Invigilator before the Controller of Examinations  

and the Inspector completely ignoring  that it was he who had asked for substitute

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Invigilators  because  those  already nominated  had conveyed their  unwillingness  to  

work and that in the statements made before the Controller of Examinations and the  

Inspector, Crime Investigation Department, the Chief Invigilator categorically stated  

that the appellant had produced the order by which he had been nominated to work as  

Invigilator and he had no role in bringing the question papers from the office of the  

Commission or distribution thereof.

17. Unfortunately, the learned Single Judge and the Division Bench of the High  

Court failed to take cognizance of the admission made by the Chief Invigilator that on  

a request made by him, five substitute Invigilators including R.Mahalingam had been  

appointed by ‘P’ Section of the Commission and he had produced the order of his  

appointment and that the question papers etc. had been brought by him i.e. the Chief  

Invigilator from the office of the Commission and opened seals in the presence of two  

other invigilators . The High Court also did not pay due weightage to the fact that the  

appellant  had not handled the question papers at any stage and he had no role in  

distribution of wrong question papers to six candidates.  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.

18. At the cost of repetition, it deserves to be mentioned that the appellant had no  

role  to  play  in  the  matter  of  mixing  of  the  question  papers  of  the  afternoon  

examination with the morning examination. Before the Enquiry Officer, no evidence

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was produced by the Commission to prove that the appellant had the custody of the  

question  papers.  Rather,  the  statements  made  by  the  Chief  Invigilator  before  the  

Inspector, Crime Investigation Department and the Controller of Examinations clearly  

show that he had collected the question papers from the office of the Commission,  

that the seals were opened at the examination center in the presence of two persons  

and the appellant had not played any role in the exercise. Therefore, the appellant  

cannot be blamed for distribution of wrong question papers to the candidates or the  

so-called leakage of the question papers.  

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.

..….………………….…J.                       [G.S. SINGHVI]

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..….………………….…J.                      [H.L. GOKHALE]

New Delhi, February 20, 2013.