S. Gandhi vs Tamil Nadu Electricity Board and Another

The petitioner is working as Junior Engineer Grade II, Construction, in the Tamil Nadu Electricity Board at Batalgundu. For a Junior Engineer

Grade II to be promoted, one must pass the Account Test held by the Tamil Nadu Public Service Commission, the second respondent herein. A

person appointed as Junior Engineer Grade II, is given one increment after completion of one year of the appointment and further increments

would be given on a regular basis only, on his passing the Account Test. Therefore, the passing of the Account Test is a condition for further

prospects either to Junior Engineer Grade II or Junior Engineer Grade I to get increments as well as promotion.

In so far as the petitioner is concerned, he appeared for the Account Test Part-I conducted by the Tamil Nadu Public Service Commission. His

registration number is 24669. The examination was held on 3rd November, 1980. The petitioner wrote the said test held at O.C.B.M. High

School, Madurai. It is the case of the petitioner that after finishing the first answer book in Account Test Paper I, he asked the invigilator, who was

in the hall, for additional answer book. When the petitioner asked for an additional answer sheet, the invigilator told the petitioner that additional

sheet are not readily available and therefore the invigilator handed over to him white sheets of paper, which were in his possession, and asked the

petitioner to continue to write his answers. When the petitioner finished writing in the white papers, the petitioner asked further sheets of papers.

But he was supplied with additional sheets by the invigilator, which were not white in colour. It is the case of the petitioner that he asked the

invigilator of the hall whether there would be any difficulty, since he had been supplied with white paper and asked the petitioner to write over it.

The invigilator is said to have replied to the petitioner, that there would not be any difficulty, as he had supplied the white papers to the petitioner as

Additional Sheet. Believing the invigilator, who has supplied the white sheets to the petitioner, the petitioner wrote his examination on the white

sheet and also on the additional sheets supplied by the invigilator. When the results were published, the petitioner was shocked to find that his

result in the test was withheld. The petitioner came to know that the second respondent has withheld his result, since he has used the unauthorised

white papers as additional answer papers and on this ground the petitioner''s answer papers were invalidated. By a Memo. No. 451-L3/81 dated

26th February, 1981, the petitioner was informed by the second respondent that he has used the plain white sheets as additional answer book

while writing the E.D.A.T. Test First Paper held on 3rd November, 1980 and that the petitioner was asked to explain whether the plain white

sheets were supplied to him by the Hall Supervisor, and if so, the circumstances under which the said white sheets were supplied to the petitioner.

The explanation of the petitioner should reach the office on or before 10th March, 1981, failing which his answer papers would be invalidated and

the matter would be reported to the Head of the Department.

The petitioner set out true circumstances and explained the second respondent, as to how he came to write in the white sheets at the instance of

the invigilator. But the second respondent, by his letter No. 451/L3/81 dated 20th July, 1981, asked the petitioner as to why he should not be

debarred from its future examinations and selections to be held by it for the malpractices committed by him. This has led the petitioner to file W.D.

4928/82 and to seek the issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to the communication of the second

respondent in Memorandum No. 451-L3/81, dated 20th July, 1981 and to quash the same.

It was contended by the petitioner that the second respondent, without holding any enquiry, has come to the conclusion as to why he should not

be debarred from its future examinations and selections to be held by it, since he has committed malpractices.

By a Memorandum no. 451/L3/81 dated 3rd November, 1981, the second respondent has issued a Notification debarring the petitioner for a

period of three years from 28th October, 1981 from its future examinations and selections to be held by it. It is against this order, the petitioner

filed W.P. No. 7885 of 1982 and seeks the issuance of a Writ Certiorarified Mandamus pertaining to the communication of the second respondent

dated 3rd November, 1981 and to quash the same.

The main contention of the petition in these two writ petitions is that he appeared for the Account Test in O.C.B.M. Higher Secondary School,

and when he finished his first answer book, he asked the invigilator to supply an additional answer book. But the invigilator did not supply

immediately additional answer book, but on the other hand, supplied two white sheets, enabling him to write answer. Thereafter, when the

petitioner required further papers, he was given two additional answer books. According to the petitioner, it is not his mistake for writing answers

on the plain white sheet, which were supplied by the invigilator. The allegations of the second respondent that the petitioner has used two additional

white sheets in the examination and has attached the same to the additional answer book, are not acts of his own. The additional plain white sheet

were supplied to the petitioner by the invigilator who was present in the hall, as additional answer books enabling the petitioner to write his

answers. Even though the petitioner has given convincing answers in his replies to the second respondent, the second respondent has not only

withheld the result of the examination, but also has debarred him from appearing for the examinations for period of three years. Such act of the

second respondent will affect the petitioner''s promotion. It is with these allegations that the petitioner seeks the issuance of a writ of Certiorarified

Mandamus and has filed the above writ petitions.

A counter affidavit is filed by the second respondent wherein it is contended that on enquiry from the Chief Invigilator of the concerned Center,

this respondent came to know that no white papers were supplied to the candidates for being used as additional answer took. A show cause

notice was issued to the petitioner as to why be should not be debarred from appearing for its future examinations and selections to be conducted

by it. This notice was issued to the petitioner by the second respondent only after due enquiry with the Chief Invigilator, and the second respondent

after being satisfied that the petitioner has committed malpractices, has come to the conclusion but the petitioner''s result should be withheld and he

should be debarred for a period of three years. The petitioner was informed that his contention, that no such enquiry was conducted in this matter

and that the invigilator was not consulted before the Commission came to the conclusion that the petitioner''s answer book be invalidated was not

correct. On a thorough enquiry, the second respondent has come to the conclusion that the result should be withheld and the petitioner should be

debarred from appearing for the future selections and examinations to be conducted by the Commission.

On the basis of the averments in the affidavit and the Counter affidavit, the question that required for consideration is, whether the petitioner has

used two white sheets without the knowledge of the invigilator while writing the examination on 3rd November, 1980 at O.C.B.M. High School,

Madurai.

I have not only perused that affidavit and the counter affidavit, but also called for the records of the second respondent. The learned

Government Advocate has placed all the records of the second respondent before me. It must be noted that the petitioner''s register number in the

Public Service Commission is 24669. The name of the examination is mentioned as ''Electricity Department Account Test''. At the first page of the

answer book in the column ""number of additional answer book used"", it is shown as ""3"". It is also seen on the top of the answer book that the

petitioner has scored 54 marks. But it is not clear whether he has come out successful or failed.

The question that has to be considered in this case is, whether the two white sheets, which were found in the answer book, were supplied to

the petitioner by the invigilator, who was having a vigil in the examination hall. The case of the petitioner is, that after writing the first answer book,

he asked the Supervisor to provide for an additional answer book, for writing the answers. The Supervisor, who was present, was not having

additional answer books. This has led the invigilator in handing over the petitioner two separate sheets of white papers and the petitioner was

asked to write over it. Though the petitioner at that time entertained a doubt whether he could use the said white papers, but yet from the

averments contained in the affidavit of the petitioner, it is found that on the assurance given by the Hall Supervisor (Invigilator), he wrote answers

over the two additional white sheets. When the two additional white sheets were filled up, the petitioner is said to have demanded further additional

answer books, and two additional answer books were given to the petitioner. I have perused the answer books of the petitioner and the white

sheet supplied to the petitioner, and I find that there is a continuity in writing the answers from the first answer book to the additional sheets of

paper and the third additional book. If the two additional books were inserted by the petitioner without the knowledge of the Hall Supervisor,

there could not have been any continuity as is seen from the answer book.

That apart, the petitioner contends that when his first answer book is over, he asked the Hall Supervisor for additional answer book and the

Hall Supervisor has given only two sheet in the first instance. In an explanation asked by the second respondent as to how and under what

circumstances the petitioner has used the two additional sheets, the petitioner in his explanation dated 6th March, 1981, which I find from the file,

has stated that he contacted the Hall Supervisor for additional sheets, and he was supplied with plain white sheets as additional sheets. The

petitioner has also stated that he had faint remembrance that the Hall Supervisor has signed the additional white sheets in the left hand side corner.

It must be noted that the examination was held on 3rd November, 1980 and the explanation was furnished by the petitioner to the second

respondent on 6th March, 1981. It is likely that the petitioner could not have remembered whether the additional sheets were signed by the Hall

Supervisor at the top corner of the sheet. Whatever it may be, from the correspondence, I find that the second respondent has asked one

Hydross, the Assistant Director of Agriculture (information) by communication dated 26th February, 1981 to verify whether the petitioner has used

the white plain sheets as additional answer books for answering the first paper of the Account Test. The said Hydross informed the second

respondent that no white sheets were issued to the examiners for use as additional sheets for any of the examinations. The main contention of the

petitioner was, that the Hall Supervisor has given him white sheets, has led him to write his answers and that he has not committed any malpractice,

nor any misconduct or has unauthorisedly inserted the white sheets and that the white sheets were supplied by the invigilator (Supervisor), who was

present in the Hall. The petitioner has also stated that if an enquiry, is held in the presence of the Hall Supervisor, who was present then, the

petitioner would be in a position to prove to the hilt, as to how the white sheets were supplied to him by the concerned person. In spite of this,

specific explanation and request made by him by the Chief Superintendent Hydross, has come to the conclusion that the petitioner has used

unauthorisedly two white sheets in the examination which has resulted in withholding the result of the petitioner and debarring the petitioner from

appearing for the future examinations for a period of three years.

The contention of the petitioner is, that he has not committed any act of his own and the papers were solely supplied by the Hall Supervisor. If

an enquiry is to be conducted in the presence of the Hall supervisor Supervisor who was present at the time of examination in the Hall, the

petitioner will be in a position to prove as to how the white papers were supplied by the concerned Hall Supervisor. When once such an allegation

is placed before the second respondent, the second respondent ought to have called the Hall Supervisor in the presence of the petitioner and ought

to have held an enquiry and passed appropriate orders. This is a matter in which the second respondent has taken an action against the petitioner,

having far reaching consequences and prejudicial affecting the future of the petitioner. The second respondent should have taken very care to

follow the procedure that would be free from blemish. Without doing this, the second respondent has withheld the result of the petitioner and has

debarred the petitioner from appearing for the future examinations. This act of the second respondent is in violation of the principles of natural

justice. No opportunity was given to the petitioner to question the Hall Supervisor, who was present at the time when the petitioner wrote the

examination.

It is a well settled law that when the petitioner has come forward with a case that he has not committed any act of his own warranting to

withhold his examination result or to debar him from appearing for the future examinations, the duty of the second respondent ought to have been,

to hold and conduct an enquiry. The principles of natural justice ordain that such an enquiry should be held impartially and objectively, after giving

an opportunity to the petitioner. On the facts and circumstances of this case, an enquiry ought to have been conducted by the second respondent

on the submission of the petitioner by calling upon the petitioner and also the concerned Hall Supervisor, who was present in the Hall to verify

whether the petitioner was supplied any white sheets at the examination hall. This has not been done. Failure to do this will be affecting the career

of the petitioner. Every order, more particularly, an order of this type issued by the second respondent against the petitioner, should conform to the

principles of audi alteram partem. In this case, I find the petitioner was not heard personally and an opportunity was not given to him to convince

the second respondent that he has not inserted the alleged two white sheets in his answer book, to warrant such a serious punishment. Principles of

natural justice require that there should be a fair determination of a question involved in the case. Arbitrariness will certainly not ensure fairness. In

this case, inspite of the fact that the petitioner has stated that it is only the invigilator (Hall Supervisor) that has given the two white sheets in the

examination hall, an enquiry was not conducted by the second respondent from those Hall Supervisors present in the examination hall about giving

of two white sheets to the petitioner. If the second respondent disregards the materials placed before it by petitioner and refuses to apply its mind

to the questions of not examining the Hall Supervisor, who was present at the hall, and if it reaches a conclusion merely on the correspondence

which has no relation to the contentions of the petitioner and has arrived to a decision, to allow such a decision to stand against the petitioner,

would indeed be a violation of the Principles of natural justice. The question whether the petitioner was supplied with white sheets by the Hall

Supervisor, who was present at the Hall, is a matter that requires enquiry by the second respondent from the Hall Supervisors who were present in

the hall, in the presence of the petitioner. From the file placed before me by the learned Government Advocate, I do not find any such enquiry was

conducted by the second respondent. The right of hearing the petitioner and the Hall Supervisor, who were present in the hall, by the second

respondent, is very essential, to come to the conclusion whether the petitioner was supplied with two white sheet by the Hall Supervisor while the

petitioner was writing the examination.

After hearing the arguments of the respective counsel, I am of the view that an opportunity should be given to the petitioner before any action is

taken against him, by holding an enquiry with the petitioner and the concerned Hall Supervisor to come to the conclusion, as to whether the

petitioner has used the white sheets of his own accord or whether they were supplied by the Hall Supervisor who was present at hall. In the

absence of such enquiry the impugned orders of the second respondent are quashed and I direct the second respondent to hold an enquiry by

issuing notices to the petitioner and to the Hall Supervisor, who were present on 3rd November, 1980 at O.C.B.M. High School, Madurai and

thereafter to pass appropriate orders. The second respondent is directed to hold the enquiry, as directed above within six weeks from the date of

receipt of a copy of this order. This writ petitions are ordered accordingly. No costs.