A. Revathy vs The Registrar, High Court and The Chief Judge, Court of Small Causes

M. Thanikachalam, J.—The petitioner, who is working in the Court of Small Causes, as Examiner, appeared for Accounts Test-II, in the

examination conducted by the Tamil Nadu Public Service Commission in the month of December 1999. The petitioner due to incompetency,

unable to answer the questions, in the answer paper itself requested the Examiner, since she was unable to answer any question, by showing

mercy, to give a pass, for that she prayed the help of the God also.

2.The Examiner, noticing the malpractice of the petitioner/candidate, requested the concerned authority, through TNPSC to initiate proceedings,

since the Government Servant namely, the petitioner attempted to cheat in the examination conducted by the TNPSC, adopting malpractice, or

some thing like that. In pursuance of the request made by the Secretary, TNPSC, departmental proceedings were initiated against the petitioner,

issuing show cause notice in the month of June 1998. For the show cause notice, the delinquent petitioner, admitting her conduct, prayed for

mercy, that too, alleging that at the time of writing in the answer papers, she was in temporary unsoundness of mind or the writings were made by

her, out of temporary unsoundness of mind. On the basis of the admission, the Chief Judge, Court of Small Causes, passed an order, directing

withholding of increment for two years, with cumulative effect on the individual on 6.7.98.

3.The petitioner, aggrieved by the said order, preferred an appeal to the High Court and the High Court concurring with the order passed by the

Chief Judge, Court of Small Causes, confirming the same, rejected the appeal on 19.2.1999.

4.The petitioner impugning the same, filed this writ petition praying to quash the order dated 19.2.1999 in proceedings No.Roc.4675/98/C1.

5.The learned senior counsel, Mr. A.L. Somayaji, appearing for the petitioner would contend, that the writings made by the petitioner in the

answer paper to award pass mark and praying the mercy of God would not amount to cheating or malpractice, that the enquiry officer has not

followed the procedures laid down in Rule 17(B) of Tamil Nadu Civil Services (Discipline & Appeal) Rules, since the withholding of increment is

likely to affect adversely the amount of pension payable to the Government Servant, and on these grounds, the order is liable to be quashed. The

learned Senior Counsel further contended, that imposing such a severe punishment; for praying mercy, out of frustration, certainly will cause

hardship to the Government servant, affecting the monetary benefits through out her service, as well as in the pension and therefore, at least

leniency should be shown, modifying the sentence, not affecting the promotion or the pension benefits, etc.

6.The learned Government Pleader would contend, that for the malpractice, done by the petitioner, the punishment imposed is proper, and it does

not warrant, any disturbance.

7.The petitioner, though contended in this writ petition, that the disciplinary action was not properly conducted, it is not her case either before the

enquiry officer or before the appellate authority. As seen from the show cause notice and as rightly contended by the learned Senior Counsel for

the petitioner, the show cause notice or the official memorandum reads, that if her explanation does not reach within the specified time, further

course of action will be taken on available merits, as per the rules. Therefore, as rightly contended, whether the petitioner had conceded the facts

or not, when the enquiry officer has decided to impose severe punishment, he ought to have followed the procedure contemplated as per Rules.

But unfortunately, considering the admission of the delinquent alone, the Chief Judge, Court of Small Causes, observing that unless some stringent

punishment is given, such an act of malpractice by Government Servants, could not be curtailed, and imposed the penalty of withholding of

increment for two years with cumulative effect.

8.Though the procedure adopted by the second respondent appears to be not in accordance with the Rules, on this ground alone, we are not

inclined to interfere with the findings, so as to say, it is nullity to the entire extent. On the basis of the admission made by the petitioner, as

delinquent before the second respondent, the Chief Judge, Court of Small Causes thought fit to impose the punishment, which was also confirmed

by the High Court, in Appeal. As seen from the records, before the High Court also, the petitioner has not questioned the findings of the second

respondent, on the ground of irregular procedure said to have been adopted by the second respondent, or on the ground that the impugned order

is void, since the procedure contemplated under Rule 17(b) are not fully followed or adopted. Therefore, on the ground of non observance of

correct procedure, under Rule 17(b), we are not in a position to quash the order in entirety.

9.The petitioner fairly conceded, that she prayed the mercy of the examiner, as well as the God. But unfortunately, both of them have let her in

lurch, to face the enquiry. As seen from the explanation submitted by the petitioner/delinquent, she would go to the extent of saying, that she made

such a plea out of temporary unsoundness of mind, probably out of frustration, unable to pass the accounts test, which is mandatory for further

promotion. The act of the petitioner, certainly would amount to malpractice and therefore, correctly, the Secretary, Tamil Nadu Public Service

Commission has recommended for proper action, which was also followed in this case.

10.The learned Additional Government Pleader would contend, that unless some stringent punishment are imposed upon the Government

Servants, like this, this kind of malpractice could not be curtailed. We are unable to subscribe our view, to the above said contention, though we

are also of the firm view that the malpractice should be nipped in the bud, certainly to discipline the staff. But at the same time, the gravity of the

offence, as well as the conduct of the petitioner should not be forgotten, while imposing the punishment, since imposing the punishment, should be a

correctional method also. In this view of matter, we are unable to persuade ourselves, to set aside the order in its entirety, whereas, we are able to

persuade ourselves, taking into consideration the plight of the petitioner, to modify the punishment into one of stoppage of increment, for two years,

without cumulative effect, which will not in anyway, seriously affect the monetary benefits to the petitioner as well as her pensionary benefits in

future, meeting the ends of justice also.

11.The learned Senior Counsel Mr. Somayaji would contend, that the petitioner''s health is badly affected, and that this kind of punishment may

affect her further promotion also, to some extent, thereby pleading mercy. As seen from the records, we find no other misconduct, or malpractice

on the part of the petitioner, and it is also not the case of the learned Government Pleader. The fact, would suggest, out of frustration, aiming

promotion alone, for which passing the account test is a must, the petitioner unfortunately, ventured to write the request to the examiner. Taking

into account, the over all circumstances, we are inclined to take lenient view as aforementioned.