S. Mohan vs Govt. of Tamil Nadu and Another

K.S. Bakthavatsalam, J.—The petitioner challenges the order of the second respondent dated August 27, 1989 by which the petitioner has

been removed from the services of the second respondent Board. The petitioner and one Kesavan were working as Assistants in the Besant

Nagar Division of the second respondent Tamil Nadu Housing Board, on October 14, 1985 both were arrested for having demanded and

accepted a bribe of Rs. 150 from one Sriramkrishnan, for giving information regarding Flat No. 102/20 and the petitioner herein was kept under

suspension pending inquiry, by an order of suspension dated October 18, 1985. A charge was framed against the petitioner under Service

Regulation 37(b) of Tamil Nadu Housing Board Service Regulations, 1969, stating that the petitioner has demanded and accepted a bribe of Rs.

150 from one Sriramkrishnan for furnishing the details of the amount outstanding towards the Flat No. M. 102/20, Besant Nagar. An enquiry was

conducted in which witnesses were examined and the matter was placed before the respondent- Board and the respondent-Board by the

resolution dated December 30, 1988 resolved to remove the petitioner from the service of the Board and the said resolution was sent to the

Government for approval. The Government by letter dated July 31, 1989 accepted the proposal of Tamil Nadu Housing Board and as such the

second respondent-Board issued proceedings dated August 27, 1989, which is impugned herein, by which the services of the petitioner has been

terminated. The petitioner has come up before this Court challenging the said order of removal.

The petitioner alleges in the affidavit that the second respondent erred in thinking that the charge of demand and accepting the payment had been

proved while it was the specific finding of the enquiry officer that the acceptance part of it is not proved beyond doubt. It is also alleged in the

affidavit that the disciplinary authority, while accepting the report of the enquiry officer, misread the report and imposed the punishment thinking

that the charge of receiving bribe was also proved. It is also alleged in the affidavit that many of the witnesses were shown their alleged statements

recorded u/s 161, Cri. P.C., and those statements were treated as substantive evidence, and that the disciplinary authority has failed to note that

the police officers who are originally said to have laid a trap had, after detailed investigation, dropped the case and did not file a charge sheet and

that it shows that the petitioner was not guilty of any misconduct. It is also alleged that the disciplinary authority and the enquiry authority ought to

have seen that the said Sriramkrishnan was the only witness speaking about the alleged demand and the acceptance of bribe by the petitioner, that

the enquiry officer having rightly disbelieved the said witness by holding that the acceptance of bribe by the petitioner had not been proved, ought

to have disbelieved him on the aspect of demand also. It is also stated in the affidavit that nobody else was examined to prove the demand aspect,

except the said Sriramkrishnan, that the charge of acceptance was not at all proved and as such the disciplinary authority ought to have seen that it

is not safe to believe the evidence of the said Sriramkrishnan on the aspect of alleged demand which alone, according to enquiry officer, had been

proved. It is also alleged in the affidavit that the finding of the enquiry officer is perverse as some portion of the findings is based on ''no evidence''

and some portions are contrary to evidence and that no reasonable person would come to a conclusion as arrived at by the enquiry officer. It is

also stated in the affidavit that the report of the enquiry officer and the impugned orders are non-speaking ones and as such they have to be

quashed.

A counter affidavit has been filed on behalf of the second respondent. It is claimed in the counter affidavit that the enquiry officer has stated in

the report that though the charge that the petitioner had demanded the bribe stands proved, the acceptance part was not proved beyond doubt. It

is also stated in the counter-affidavit that the result of the Phenopthelin test which was conducted on his left hand confirms turning pink and that it

shows that the petitioner would have accepted the money even though the money was recovered from the complainant during the incident. It is also

claimed in the counter affidavit that two witnesses have justified the fact that the petitioner thrust the money back to the said Sriramkrishnan, the

complainant, and that the petitioner could have done it fearing the imminent arrest by the vigilance and anti-corruption people. It is also claimed in

the counter-affidavit that since the Government have directed the Tamil Nadu Housing Board to take departmental proceedings, no police action

has taken place against the petitioner, that the competent persons to speak about the bribe will be the persons who demanded to pay the amount

and as such there is no other evidence available to speak about the demand made by the petitioner. It is also claimed in the counter-affidavit that it

is quite enough to arrive at the conclusion that the petitioner had demanded and accepted the money and thrust the money back in the hands of the

complainant on seeing the vigilance and anti-corruption officers approached him.

The first respondent has adopted the counter-affidavit of the second respondent herein.

Mr. S. Sundaram, the learned counsel for the petitioner, contends that according to the enquiry report, only the demand is proved even as per

the evidence of the said Sriramkrishnan and acceptance was not at all proved. According to the learned counsel for the petitioner, to rely upon the

evidence of one portion with regard to demand and not to accept the portion of evidence with regard to acceptance is not correct on the part of

the enquiry officer. According to the learned counsel for the petitioner, as per the report of the enquiry officer, the charge is partly proved in the

sense the acceptance was not at all proved beyond doubt, but there must have been evidence to prove the bribe. As such, the learned counsel

points out that in so far as the impugned order stated that the charges framed against the petitioner are held to be proved, when the demand is not

accepted by the petitioner, according to the enquiry report, the charge of bribe against the petitioner is not correct. According to the learned

counsel for the petitioner, it is true that the punishing authority can differ from the findings of the enquiry officer, but in this case, no reasons are

given in the affidavit for arriving at a decision that the acceptance of bribe is proved. On this score alone, the impugned order has got to be set

aside, is the contention raised by the learned counsel for the petitioner. Learned counsel further contends that no reasons are stated in the

impugned order for arriving at such a decision and that the respondents had passed a non-speaking order and as such it is vitiated.

Mr. S. Doraisamy, the learned counsel appearing for the second respondent-Board, points out that the chemical analysis report has clearly

proved the receipt of money, that on seeing the vigilance officers, the petitioner thrust back the money into the pocket of the said Sriramkrishnan,

the complainant, and that itself shows that the petitioner has made a demand of bribe. According to the learned counsel appearing for the

respondent-Board, atleast ''demand'' is proved, though ''acceptance'' is not proved.

I have considered the arguments of S. Sundaram, the learned counsel appearing for the petitioner, and of Mr. P. Balasubramaniam, learned

Additional Government Pleader appearing for the first respondent and of Mr. S. Doraiswamy, the learned counsel appearing for the respondent-

Board.

The short point that arises for consideration in this case is whether the punishing authority has applied its mind before passing the impugned

order. On a perusal of the materials placed before me, I am of the view that the impugned order shows the non-application of mind. The impugned

order proceeds on the footing as if ''demand'' and ''acceptance'' are proved by the enquiry authority. A reading of the enquiry report does show

that the enquiry authority has held that only the ''demand'' portion alone is proved. But the punishing authority has come to the conclusion that it has

been clearly proved on the report of the enquiry officer, the charge stands with regard to ''demand'' and ''acceptance'' of the bribe. No reasons are

stated in the impugned order as to how such a conclusion has been arrived at. When the punishing authority normally differs from the enquiry

report, the least that could be expected is that reasons should be Stated therein as to why a different decision has been taken. A reading of the

impugned order shows that no reasons are stated therein for differing from the report of the enquiry officer. However, the learned counsel

appearing for the second respondent-Board contends that this Court can come to the conclusion that, at any rate, the ''demand'' is proved. I do

not think that such a conclusion can be arrived at by this Court, since no reasons are stated by the punishing authority for differing from the findings

of the enquiry officer and it is not possible for this Court to guess as to what was passing on the mind of the punishing authority when the quantum

of punishment was arrived at. It has been held by the Apex Court in State of West Bengal Vs. Atul Krishna Shaw and Another, to the following

effect:

....By process of judicial review we cannot appreciate the evidence and record our own findings of fact. If the findings are based on no evidence

or based on conjectures or surmises and no reasonable man would on given facts and circumstances come to the conclusion reached by the

appellate authority on the basis of the evidence on record, certainly this Court would oversee whether the findings recorded by the appellate

authority is based on no evidence or beset with surmises or conjectures.

.........Giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of

judicial review. Reasoned decision is not only for the purpose of showing that the citizen is receiving justice, but also a valid discipline for the

Tribunal itself. Therefore, statement of reasons is one of the essentials of justice....

This view has to be arrived at necessarily in view of another decision of the Apex Court of the land in Bangalore Medical Trust Vs. B.S.

Muddappa and others, wherein it has been held that the disciplinary enquiry is quasi-judicial in nature. As such, this Court cannot go into the

question of quantum of punishment, as I have always stated. In such circumstances, the impugned order of the second respondent has got to be set

aside and accordingly, it is set aside and the punishing authority of the second respondent-Board is directed to pass an order afresh.

In the result, the impugned order is set aside and the writ petition is allowed and the matter is remitted back to the punishing authority for

passing order afresh as mentioned above. However, there will be no order as to costs.