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Judgment
M.M. Sundresh, J.—The writ appeal has been preferred by the appellant challenging the order of the learned single Judge who in turn
confirmed the order of the respondents wherein the appellant was dismissed from service.
The brief facts of the case are as follows:
i. The appellant was appointed as Junior Assistant with the respondents on 01.09.1973 and thereafter he served as an Assistant with the
respondents (""P"" Section). The appellant was served with a charge memo dated 27.03.1990 framing six charges against the appellant and he was
asked to show cause as to why proceedings should not be initiated against him. The charges framed against the appellant are as follows:
(1). That Thiru. A. Savariar, Assistant, ''P'' Section who was incharge 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 incharge 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.
ii. In pursuant to the said charges framed against the appellant, a questionnaire was also given to the appellant asking him as to whether he prefers
any oral enquiry. The appellant submitted his explanation on 22.06.1990 expressing his desire to have an oral enquiry. He was also permitted to
inspect the files and other documents. Thereafter the Enquiry Officer held the enquiry on 30.08.1990 and 04.09.1990. A copy of the deposition
recorded at the oral enquiry was furnished to the appellant. Thereafter in pursuant to the further statement of defence submitted by the appellant,
the Enquiry Officer submitted his report on 31.12.1990. The copy of the Enquiry Officer''s report was furnished to the appellant and in pursuant to
the reply given by the appellant, the first respondent being the disciplinary authority concurred with the views of the Enquiry Officer and held that
the charges 1, 2, 4 and 6 framed against the appellant are proved as found by the Enquiry Officer. The further appeal filed by the appellant
challenging the order of the first respondent dated 25.03.1991 was also confirmed by the second respondent on 14.10.1992.
iii. Being aggrieved against the orders of the respondents, the appellant preferred a writ petition in W.P. No. 18836 of 1994. The learned single
Judge after considering the submissions made on behalf of the appellant has dismissed the writ petition. Challenging the said order of the learned
single Judge, the appellant has filed the present writ appeal.
The charges framed against the appellant are to the effect that the appellant who was in-charge of the appointment of the Chief Invigilator and
other Invigilator for the conduct of the main written examination relating to the post of Assistant Surgeon in the Tamil Nadu Medical Service for the
year 1989-90. Unauthorisedly served an appointment order to one R. Mahalingam, who was in leave to act as an Invigilator at Bharathiar Arts
College for Women, Madras, without obtaining the orders from the competent authority and he has also issued similar orders in favour of one
Thiru. Asir for the examinations held on 17.02.1990 and 18.02.1990. In order to get the anticipatory bail, he produced the office note without the
authority of the competent authority and by doing the above said acts, he has arrogated to himself the powers of the higher authorities.
In his explanation, the appellant had stated that he issued the orders with the approval of the higher authorities, he did not know that the said
Mahalingam was on leave and superintendent was present at the time of issuing orders to Mahalingam. The said order was passed in favour of Asir
at the request of Shri. Khader Baig, Office Assistant and he has not signed the same. The Anticipatory Bail was sought to avoid the unnecessary
harassment by the police as the record produced were only to show that he attended the Office on 17.02.1990. Further it is stated that the orders
have been passed with the approval of the higher authorities, since there were insufficient officers to be appointed as Invigilator.
The Enquiry Officer gave sufficient opportunities to the appellant to cross-examine the witnesses, the documents and statements have been given
to the appellant. After conducting the enquiry, the Enquiry Officer came to the conclusion that charges 1, 2, 4 and 6 have been proved against the
appellant. The disciplinary authority as well as the appellant authority who are the respondents herein have agreed with the findings of the Enquiry
Officer and imposed the punishment of dismissal.
During the pendency of the writ appeal, the Hon''ble Division Bench has referred the issue as to whether an officer in-charge can act in the
capacity of an Enquiry Officer and discharge the statutory functions vested with the permanent post to which he was made in-charge to a larger
Bench. The said reference made by this Hon''ble Court was answered by the Full Bench in 2008 3 L.W. 760 [A. Savariar v. The Secretary, Tamil
Nadu Public Service Commission and Anr.] by holding that an officer in-charge of a post has got power to discharge the powers and statutory
functions of the said post. After the reference was answered by the Full Bench, the matter is again posted before the Division Bench for deciding
the case on merits.
Shri. S. Parthasarathy, learned senior counsel appearing for the appellant submitted that in the present case on hand the competent authority
who imposed the punishment is the first respondent but the said power was exercised by the Controller of Examinations and therefore the order
passed is one without jurisdiction. The learned senior counsel submitted that as per the Tamilnadu Government Fundamental Rules 49, the
Government has the power to appoint a Government servant to hold full additional charge or to discharge current duties of one or more
independent posts. But if such a Government servant merely discharges a current duty then he cannot perform the duties of the said post. The
learned Counsel also produced a letter dated 01.04.2008 to show the officer who passed the order was not paid the allowance for holding the
post of the Secretary and therefore the order passed is one without jurisdiction.
The second contention of the learned senior counsel is that the Controller of Examinations is subordinate to the first respondent and therefore a
subordinate officer cannot be arrogated to the post of the first respondent and act in such a capacity. The learned senior counsel further submitted
that a procedure contemplated under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules has not been followed. According
to the learned senior counsel the statements of the witnesses based upon which the charges have been framed have not been furnished and
therefore there is a violation of principles of natural justice. The learned senior counsel on merits submitted that the appellant being the competent
authority as found in the charges has passed the orders and therefore the question of getting the approval from the competent authority does not
arise for consideration. The learned Counsel also submitted that the appellant had not issued the order of appointment to one Mr. Asir and the fact
that he produced documents without consent will have to be seen in the context of appellant''s anxiety to get the anticipatory bail. Hence the
learned senior counsel sought for setting aside the entire proceedings and prayed for the writ appeal to be allowed.
Per contra, Ms. C.N.G. Niraimathi, learned Counsel appearing for the respondents submitted that the charges framed against the appellant are
very serious in nature and therefore based upon the evidence the authorities have correctly come to the conclusion that the charges have been
framed. The learned Counsel submitted that in so far as the proceedings for appointment of Invigilator is concerned, normally two lists will be
prepared, one is by the Collector and another one is by the Establishment Section. If the two lists are not sufficient, the third list will be prepared
by the ""P"" Section, in which, the appellant was working. It is not the case of the appellant that he is the competent authority to prepare the list.
There is no evidence of the post approval of the list as claimed by the appellant. All the original Invigilators were modified and tampered at the
instance of the appellant as per the charge No. 6.
The learned Counsel submitted that the post of Controller of Examinations and the Secretary are cadre posts managed by I.A.S. Officers.
Both posts are distinct and different operating in separate fields. There is no bar in law for an officer working in one post to work in another post.
In fact for a long period of time the post of the Secretary was not filled up and it was held on a temporary basis by various other officers. In other
words, the learned Counsel submitted that the post Controller of Examinations is not subordinate to the post of Secretary and in any case a person
is holding the post of Controller of Examinations is competent to hold the post of Secretary as in-charge. The learned Counsel also submitted that a
detailed enquiry has been conducted and sufficient opportunities have been given before coming to the conclusion and therefore no interference
needs to be called for.
We have heard the arguments of Shri. S. Parthasarathy, learned senior counsel appearing for the appellant and Ms. C.N.G. Niraimathi,
learned Counsel appearing for the respondents.
As seen from the narration of the facts mentioned above, there are six charges that have been framed against the appellant and out of 6, 4 of
them have been held to be proved by the Enquiry Officer. Charges 1, 2 and 6 are pertaining to the action of the appellant unauthorisedly issuing
appointment orders to act as an Invigilator and also tampering with the records and creating records as well. The appellant was given sufficient
opportunity to substantiate his case as he was permitted to peruse the case before his explanation and copies of the depositions recorded at the
oral enquiry were given and thereafter he was also permitted to give his further statement of defence before the Enquiry Officer. The appellant was
also permitted to cross-examine the witnesses as he decide. The Enquiry Officer came to the conclusion based upon the materials available on
record and the oral evidence adduced by the witnesses. While coming to the conclusion, the Enquiry Officer considered the explanation given by
the appellant as against the available materials. Therefore it cannot be said that the appellant was made to substantiate his case by putting the entire
onus on him.
The appellant has specifically stated that he had issued the orders with the approval of the authorities. A procedure has been contemplated for
issuing the list and as per the said procedure permissions will have to be obtained from the competent authorities. The appellant has not disputed
the procedures but has stated that orders have been issued only with the approval of the competent authority. When the said fact was denied it is
for the appellant to prove the same and on his failure to prove the same as against the available materials, the Enquiry Officer came to the
conclusion that the first charge was proved against him. In so far as the second charge is concerned, the Enquiry Officer came to the conclusion
that in view of the evidence given by Khader Baig, the said charge is proved against the appellant. Similarly, the Enquiry Officer has come to the
conclusion that the explanation of the appellant regarding charge No. 4 was also not satisfactory. The above said findings being the findings of fact
based upon the material evidence, we do not find any illegality or perversity in them.
In so far as the contention of the learned senior counsel for the appellant that the Controller of Examinations cannot act as a Secretary, the said
contention cannot be countenanced, since the Hon''ble Full Bench of this Court in the judgment reported in 2008 3 L.W. 760 [A. Savariar v. The
Secretary, Tamil Nadu Public Service Commission and Anr.] has clearly held that a person who is holding the post as an additional full charge or in
his officiating capacity can exercise the powers of the said post. The Hon''ble Full Bench has observed as follows:
As per the finding of the Division Bench, the officer-in-charge cannot be considered to be the Officer of the said post and he is not entitled to
discharge the statutory functions of the Collector and he can look after only the day-to-day administration. But neither any provision of law nor any
instruction of the Government in this regard is cited to lay down this principle. Under Ruling 19 of F.R. 9, in a vacancy one can be posted by way
of officiating and under F.R. 49 in a vacancy one can be posted by way of full additional charge. As per F.R.49, the Government may appoint a
Government servant whether permanent or officiating, to hold full additional charge or to discharge the current duties of one or more independent
posts at one time as a temporary measure and grant additional pay subject to certain limits which will also reflect that a Government servant who is
posted to officiate the post can discharge the current duties of the said post. As such not only the permanent holder of the post but also who is
holding the post as an additional full charge or in his officiating capacity can exercise the powers of the said post. Likewise, when an Officer is
posted as an in-charge, he is holding the said post. Necessarily while holding that post, he has to perform the functions of that post and execute the
responsibilities of the said post. Even the term ''in-charge of a post'' means, over all control of the post or of the Company or of the Firm. That
means, when one is posted as in-charge, he is having the overall control of that post which necessarily follows the execution of the powers and
functions of the said post. Unless, contrary intention is expressed by the Government either by way of a statutory provision or by way of an
executive instruction, an officer who holds the post in-charge has got the power to discharge the statutory functions and the responsibilities of the
said post.
The Hon''ble Full Bench has further observed as follows:
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 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 Gopalji Khanna Vs. Allahabad
Bank and others, as referred above, we are of the opinion, the view of the Division reported in 1997 W.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. Registry is directed to place the papers of the writ appeal before the appropriate
Bench for disposal.
A reading of the judgment of the Full Bench between the same parties would clearly show that an officer in-charge can act and exercise the
powers of the post in which he was made in-charge. In the present case on hand, the post of Controller of Examinations and the Secretary are
cadre posts managed by I.A.S. Officers. The post of Controller of Examinations is not subordinate to that of Secretary. Further it is not the case of
the appellant that while appointing the officer in-charge as Secretary the power of disciplinary proceedings was not given to him. Hence, the
contention of the learned senior counsel is liable to be rejected. Accordingly the same is rejected.
The other contention of the learned senior counsel that in view of note:-1 of Fundamental Rules 49 the appointment will have to be construed
to mean to discharge the current duties alone also cannot be countenanced. There is no material to show that the officer concerned was on a
current duty. Even assuming he was on a current duty, the said duty being an additional charge and there is no bar to hold the said post and
discharge its function. The letter produced by the appellant dated 01.04.2008 also cannot support his case, since the said letter also clearly states
that the officer in-charge was given additional charge for the post of Secretary. The mere fact that he was not paid for the additional charge in view
of the short period of office in the said capacity cannot be a ground to hold that the power exercise as a Secretary is one without jurisdiction.
Moreover the appellant has not taken the said plea either before the respondents or before the learned single Judge. Hence we are of the
considered view that the appellant cannot raise the said plea for the first time before this Hon''ble Court.
The Enquiry Officer has given sufficient opportunities. The appellant was permitted to peruse the records and the copies of the witnesses were
given to him. Before the second show-cause notice, the report of the Enquiry Officer was also furnished to the appellant. The appellant has not
made any specific complaint regarding the violation of principles of natural justice before the Enquiry Officer.
The learned single Judge has considered the entire issues raised by the appellant while deciding the writ petition. The learned Judge after going
through the entire materials available on record has come to the conclusion that the charges levelled against the appellant were proved and the
appellant was responsible in appointing third parties to act as an Invigilator and producing official records without permission before the Criminal
Court.
The learned senior counsel for the appellant submitted that the appellant has rendered 171/2 years of clean service without any blemishness on
his part and therefore the punishment of dismissal inflicted on the appellant is disproportionate to the nature of charges framed against him. The said
contention of the learned senior counsel cannot be accepted, since the appellant who was incharge of invigilators has allowed third parties to act as
invigilators. The said charges since proved against the appellant, in our considered view they are very serious considering the important and
sensitive nature of the work done by the respondents. Therefore we are of the opinion that the punishment of dismissal awarded by the
respondents is proportionate to the charges and hence it does not warrant any interference.
We find that the well merited judgment of the learned single Judge based upon the consideration of the issues raised does not warrant any
interference.
It is a well settled principle of law that a finding of fact arrived at in a departmental enquiry cannot be reviewed by this Court by appreciating
the same as an appellate authority. The judicial review against the decision of the authorities in a departmental enquiry is very limited. Such a review
can only be made against the decision making process and not against the decision by itself. The said view has been affirmed by the Apex Court in
a recent judgment reported in State of U.P. and Another Vs. Man Mohan Nath Sinha and Another, wherein it is observed as follows:
The scope of judicial review in delaing with departmental enquiries came up for consideration before this Court in State of A.P. v. Chitra
Venkata Rao and this Court held: (SCC pp. 562-63, paras 21 and 23-24)
...The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public
servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure
prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority
entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is
guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High
Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of
natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching
a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by
irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever
have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is
some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be
canvassed before the High Court in a proceeding for a writ under Article 226.
The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate court. The
findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ
proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may
appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal
had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the
impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of
certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before
the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be
drawn from the said finding are within the exclusive jurisdiction of the Tribunal. See Syed Yakooh v. K.S. Radhakrishnan.
The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so.
Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the
evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no
evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its
conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court
reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely, what the High Court in exercising
jurisdiction to issue a writ of certiorari should not do.
The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making
process. The court does not sit in judgment on merits of the decision. It is not open to the High Court to reappreciate and reappraise the evidence
led before the inquiry officer and examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusions. In the
instant case, the High Court fell into grave error in scanning the evidence as if it was a court of appeal. The approach of the High Court in
consideration of the matter suffers from manifest error and, in our thoughtful consideration, the matter requires fresh consideration by the High
Court in accordance with law. On this short ground, we send the matter back to the High Court.
Hence on a consideration of the entire materials available on record and also on a consideration of the legal position, we are of the considered
view that no ground is made out for allowing the Writ Appeal and accordingly the Writ Appeal is dismissed. No costs.