A.V. Krishnamurthi vs The Government of Tamil Nadu and Others

Nainar Sundaram, J.—These two writ appeals case directed against the common order of Padmanabhan J., in Writ Petition Nos. 2052 and 2053 of 1981. The parties in both the writ appeals are the same. The Appellant in the writ appeals is the Petitioner in the writ petitions. The Respondents in the writ appeals are the Respondents in the writ petitions. For the sake of convenience, we propose to refer to the parties by their appellation in the writ petition.

The necessary facts have been summed up by Padmanabhan J., and we can usefully refer to them also. The Petitioner joined the State Government Service as a Town Planning Assistant in the year 1953. In 1971, he got appointed as Joint Director in the Directorate of Town and Country Planning. He was posted as Project Director of the Pilot Research. Project in Growth Centre a Salem. In November, 1973, he was transferred and posted as Joint Director in the Directorate of Town and Country Planning, Madras. In October, 1975, the Director of Vigilance and Anti-Corruption, Madras, brought of the notice of the Tamil Nadu Vigilance Commission that the Petitioner, along with one Sabapathy the then Deputy Director, and one Shanmugam the then Draftsman Grade-2, had indulged in malpractice and corrupt activities. This led to the suspension of the Petitioner and the two others with effect from 5th November, 1975. Thereafter the second Respondent, Commissioner of Disciplinary Proceeding Madras, was asked to enquire into the charges against the Petitioner and the two others. The second Respondent conducted two enquires, one in D.E. No. 9 of 1977 and the other in D.F. No. 10 of 1977. D.F. No. 9 of 1977 related to the alleged irregularities committed jointly by all the three personal D.E. No. 10 of 1977 dealt with the alleged irregularities committed by the Petitioner and Sabapathy. In D.F. No. 9 of 1977, a single change containing eighty instances was framed against the Petitioner. The second Respondent held the charge famed against the Petitioner and the two others stood proved and recommended the removal from service of the Petitioner and Sabapathy and the dismissal of Shanmugam. In D.F. No. 10 of 1977, the second Respondent framed a single charge with nine instances. The second Respondent found the charge proved and recommended that the Petitioners and Sabapathy be removed from service. The State Government, the first Respondent, accepted the findings of the second Respondent. A provisional conclusion was reached to dismiss the Petitioners and the others from service and a show-cause notice was issued separately to all the three individuals enclosing a copy of the enquiry report. The Petitioner submitted his further explanation. Thereafter, the first Respondent consulted the Tamil Nadu Public Service Commission, the third Respondent, and the third Respondent opened that all the three persons should be dismissed from service. Accordingly the first Respondent passed the impugned orders dismissing the Petitioner and the others from service. Writ Petition No. 2052 of 1981 was directed against G.O. Ms. No. 64 Housing and Urban Development Department, dated 2nd February, 1981, which the outcome of the result of D.E. No. 9 of 1977. Writ Petition No. 2053 of 1981was directed against G.O. Ms. No. 65, Housing and Urban Development Department, dated 2nd February, 1981 which resulted from D.E. No. 10 of 1977.

Very many contention were urged before Padmanabhan J., on behalf of the Petitioner to set at naught the order of dismissal passed against him. The learned single Judge appeased the contentions and came to the conclusion that there were ample materials to sustain the charges levelled against the Petitioner. In this view, the writ petitions were dismissed. That is how these writ appeals have come to be preferred by the Petitioner.

Mr. S. Govind Swaminathan, learned Counsel for the Petitioner, would submit that the Government of the charges levelled against the Petitioner related to corrupt motive and in the instant case there was absolutely no evidence to substantiate the allegations and the findings rendered by the second Respondent which formed the basis for and which led to the orders of dismissal passed against the Petitioner, do not at all substantiate the corrupt motive imputed to the Petitioner.

For the purpose of appreciating the submissions of the learned Counsel, we must advert to the charges levelled against the Petitioner in the two enquiries. In D.F. No. 9 of 1977, the charge was that the Petitioner actuated by corrupt motive and in abuse of his position and authority and in collusion with others, violated the Town Planning Rules, contravened the normal official procedure, fabricated the records and received illegal gratification in according sanction to lay-outs and serviced lay-outs for lands as per eight instances quoted in the memorandum of charges. We have been taken through every piece of relevant material relating to this departmental enquiry and our attention has not been drawn to any materiel which makes out that the Petitioner had a hand in fabrication of any record. That he received illegal gratification is not the case at all. On the other hand, instance No. 8 merely states that the'' other officers demanded money for the Petitioner. That actually the money reached the hands of the, Petitioner, is also not the case at all. Our attention has been drawn to the recommendation of the Tamil Nadu Public Service Commission, the third Respondent, where, in respect of instance No. 8, it has clearly expressed the opinion that the second Respondent has based his .finding that the Petitioner demanded moneys on what the other accused officers had told the witnesses concerned and that the finding of the second Respondent in this behalf is not legally supportable and the Petitioners is entitled to the benefit of the doubt with regard to instance No. 8. In the said circumstances, the allegation of corruption covered by this charge is patently a puerile one and stands totally unsubstantiated. Even the very counter filed by the Respondents expresses a stand that the Director of Town and Country Planning being the Head of the Department is in charge of the entire Department of Town and Country Planning and the others are only under his control. This practically motivates against the case put forth against the Petitioner. This is a case where there is total absence of acceptable evidence with regard to the allegation of corruption as well as fabrication of records. The learned single Judge has, of course, referred to the findings rendered by the second Respondent and has refrained from assessing the actual materials placed in the case, most likely, on the assumption that there is acceptable evidence in support of the charge levelled against the Petitioner. But, as we pointed out above, this is a case of total lack of acceptable evidence on the charge levelled and hence the findings of the second Respondent cannot but be held to be perverse so far as the Petitioner is concerned.

Coming to the other Departmental Enquiry, D.E. No. 10 of 1977, the charge levelled against the Petitioner is that actuated by corrupt motive while severing the revised lay-outs, as detailed in as many as nine instances mentioned in the memorandum of charge, the Petitioner justified the action of the other officer, Sabapathy. The lay-puts were sanctioned long prior to the Petitioner taking up the post in question. We find that Padmanabhan J. has not adverted to the gravamen of the charge levelled against the Petitioner, viz., that the Petitioner was actuated by corrupt motive. Here again, we find a case where there is total lack of acceptable evidence on the charge levelled against the Petitioner that he was actuated by corrupt motive. At the risk of repetition, we must point out that the cases case those where, the findings of the second Respondent must be held to be perverse and unsupported by acceptable evidence. The second Respondent assessed the evidence in common not only with reference to the Petitioner but also others and in a sweeping manner, without adverting to the gravamen of the charge, viz., corrupt motive, levelled against the Petitioner, held that the charges against the Petitioner have also been proved. These conclusion are mostly surmises and not the result of appraisal of any concise and positive evidence. It s well settled that disciplinary proceedings before a Departmental Tribunal are quasi-judicial in character and any conclusion to be reached by such Tribunal must be on the basis of acceptable evidence. Such evidence must have some degree of definiteness. It is true that the enquiry held by the Departmental Tribunal is not governed by the strict and technical rules of evidence. But, it the Departmental Tribunal has rendered a finding based on no acceptable evidence that could be regarded as an error of law to be corrected by a writ of certiorari. Suspicion, inference, assumption. and presumption cannot take the place of proof by means of acceptable evidence in disciplinary proceedings before a Departmental Tribunal. Though this Court shall not interfere in writ jurisdiction assessing the factual materials once again as if it is an appellate Court, yet, if this Court finds that there is a breech of the well accepted principle governing departmental enquiry, it can definitely interfere. This Court under Article 226 of the constitution of India, has jurisdiction to enquire as to Whether the conclusion of the Departmental Tribunal is not supported by any acceptable evidence at all. The facts disclosed before clearly established that the second Respondent arrived at the conclusions against the Petitioner without acceptable evidence, acting only on presumptions and assumptions and hence, his findings must be held to be per se perverse and they cannot form the basis to the further action leading to dismissal of the Petitioner. No attempt was made before us to demonstrate that there is any piece of acceptable evidence establishing the charges levelled and in particular, corrupt motive against the Petitioner.

The reasoning expressed by us as above oblige us to interfere in writ appeals, and accordingly the writ appeals are allowed, the order of Padmanabhan J., is set aside and consequently, the writ petitions will stand allowed. However, we make no order as to costs in both the writ appeals as well as in the writ petitions.