R. Srinivasan vs Union of India and Another

Venugopal, J.—The appellant while working as Income Tax Officer (Estate Duty) at Madurai, stayed in Sri Ranga Lodge, an annexe to the

New College House; Madurai, from 26th July 1973. He paid the rent till 31st July, 1973. He did not pay the rent from 1st August, 1973 to 3rd

September, 1976, the entire period of his stay in Sri Ranga Lodge on 10th November, 1976, a cheque for Rs. 6,000 was sent towards rent by the

appellant''s brother. On 1st December, 1976 stamped receipt was issued by the Lodge showing payment of rent by the appellant for the entire

period of his occupation. On 27th January, 1978, charge was framed against the appellant that he failed to pay rent payable for the period of his

occupation in spite of repeated demands from the Management and Hotel staff and has abused his official position and acted in a manner

unbecoming of public servant and thereby contravened Rule 3(1) (iii) of Central Civil Services (Conduct) Rules, 1964. The appellant submitted an

explanation that as he came to stay permanently in the Lodge, he wanted the Management to fix the monthly rent as the daily tariff rate was not

applicable to permanent residents and the Hotel Management neither fixed the monthly rent nor sent any bill and thus the delay in payment was

only due to the non-fixing of the monthly rent by the management. The appellant further explained that on account of the delay in fixing the monthly

rent, he could not claim the house rent allowance from the Government and was thus put to loss, and as the Estate Duty Officer, he had nothing to

do with the Income Tax, Wealth-tax assessment of the owners of the Lodge and he had no kind of official dealings with the Lodge owner and no

improper motive could be attributed for delayed payment of rent due to a bonafide reasons. The explanation was not accepted, and the enquiry

officer held that the charge against the appellant was proved. The matter was referred to the Union Public Service commission, which concurred

with the findings of the enquiry Officer, and recommended that the appellant is not a fit person to be retained in Government service and the

penalty of removal from service should be imposed on him. Then the impugned order came to be passed on 13th December, 1979 removing the

appellant from service for contravening Rule 3(1) (iii) of Central civil Services (Conduct) Rules, 1964. The appellant filed a writ petition challenging

the impugned order. The main ground alleged in the writ petition is that the delay in payment of rent was only due to the failure of the Hotel

Management in fixing the monthly rent payable and as there is no evidence to support the findings of the enquiry officer that the rent was not paid in

spite of demand by the Hotel Management, and as Rule 16(4) (b) of the Central Civil Services (Conduct) Rules, 1964 allows a Government

servant to have credit facilities with a bona fide trader, the charge of the appellant having violated Rule 3(1) (iii) cannot, therefore, be legally

sustained. The learned single Judge of this Court, even without admitting the writ petition, dismissed it. The learned Judge concurred with the

finding of the Union Public Service Commission that the subsequent payment of rs. 6,000 by the appellant''s brother was made only after coming

to know that the C.B.I. were enquiring into the matter and the Management of the lodge would not have allowed the appellant free lodging facilities

but for his official position and thus there was abuse of official position on the part of the appellant. The learned Judge refused to accept the plea of

the appellant that he was demanding settlement of accounts and ultimately the account came to be settled and the appellant should have stayed in

the Lodge for three years without payment of rent is certainly a conduct unbecoming of a Government servant, and, therefore, the case squarely

falls within rule 3(1) (iii) of the Central Civil Services (Conduct) Rules, 1964, and rule 16 can have no application to the appellant''s case. On these

findings, the learned Judge dismissed the writ petition, against which the present writ appeal is filed before this Court.

After the filing of the writ appeal, the first respondent has filed a counter containing the following averments. The belated payment of Rs. 6,000

made on 26th October, 1976 by the appellant''s brother was made only after the mater was taken up for verification and enquiry by the C.B.I.

officials. The appellant failed to pay the rent payable for the prolonged occupation by him and his friends, in spite of repeated demands by the

Management and hotel Staff, and thereby abused his official position and acted in a manner unbecoming of a public servant thereby contravening

the provision of Rule 3(1) (iii) of the Central Civil Services (Conduct) Rules, 1964. The appellant has no right to request this Court to constitute

itself into a Court of appeal against the finding of the enquiry officer. It has been independently investigated and approved by the Union Public

Service Commission and the request that this Court should go into minute details and reappraise the evidence in the manner required by the

appellant cannot be acceded to. In writ jurisdiction under Article 226 of the constitution this Court cannot convert itself into a Court of first appeal.

The finding of the enquiry officer is neither perverse nor unwarranted by the evidence on record. The appellant has not maintained the probity and

integrity required of him in the discharge of his public duties and has misused his official position for personal advantage and the writ appeal should,

therefore, be dismissed.

The learned counsel for the appellant contended that the residuary charge under Rule 3(1) (iii), that the Government servant shall at all times do

nothing which is unbecoming of a Government servant is applicable only when the case does not fall under any other category of charges listed

under Rule 3 and when the charge is that the appellant''s conduct is one which is unbecoming of a Government servant, the Union Public Service

Commission has found him guilty of misusing his official position and guilty of misusing his official position and the learned single Judge of this Court

has gone a step further and given a finding of lack of integrity, and the very fact that these findings have traversed far away from the charge framed

against the appellant is sufficient to vitiate them. The learned counsel further contended that the crux of the charge against the appellant is that in

spite of repeated demands from the Hotel Management and Staff, the appellant did not pay the lodge rent from August, 1973 to September, 1976,

and as there is no evidence of the alleged demand, the finding of the enquiry officer is vitiated for want of evidence, and the order of dismissal

should, therefor, be quashed.

The learned counsel for the respondents contended that the very fact that the appellant stayed in the Lodge from August, 1973 to September,

1976, without paying rent and paid the same only after coming to know of the C.B.I. enquiry, is sufficient to establish that his conduct is one which

is unbecoming of a Government servant and the evidence of P. Ws. 1 and 2 establish that the demand for payment of rent was made on the

appellant and this Court cannot reappraise the evidence of P. Ws. 1 and 2 as if it is a Court of appeal.

In Edwards (Inspector of Taxes) v. Bairstow, [1956] A. C. 14, Lord Radcliffie observed that where a determination based on findings of fact

was assailed as bad in point of law, the Court had to consider the objection, even if nothing which is ex facie bad in law appears on the face of the

determination

...... it may be that the facts found are such that nor person acting judicially and properly instructed as to the relevant law could have come to the

determination under appeal. In those circumstances, too, the Court must intervene. It has no option but to assume that there has been some

misconception of the law and that this has been responsible for the determination. So there too, there has been error in point of law. I do not think

that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which

evidence is inconsistent with and contradictory of the determination or as one in which the true and only reasonable conclusion contradicst the

determination. Rightly understood each phrase propounds the same test .... I prefer the last of the three, since I think that it is rather misleading to

speak of there being no evidence to support a conclusion when in cases such as these many of the facts are likely to be neutral in themselves, and

only to take their colour from the combination of circumstances in which they are found to occur.

The principle laid down in this decision was followed by the Supreme Court in The Provincial Transport Service Vs. State Industrial Court, and

it has been pointed out that in a writ certiorari, a Court cannot convert itself into a Court of appeal and reappraise the evidence and it can interfere

only if there is no evidence and it can interfere only if there is no evidence to support the finding. So, a finding of a quasi judicial authority based on

no evidence, but on assumptions and conjectures is liable to be quashed in a writ of certiorari. A finding of fact without evidence is an error of law,

and it is a graver error if there is evidence in existence to the contrary. An attempt to determine whether the finding of fact is supported by

evidence, cannot be characterised as reappraisal of evidence and thus bar the Court''s scrutiny on the finding recorded. So the question to be

determined is whether the finding that the appellant did not pay any rent in spite of demands by the hotel staff and management is supported by

evidence and, secondly, whether this finding is contrary to the evidence on record. P.W. 2, the Manager of the Lodge, admitted in cross-

examination :

I have not asked Sri Srinivasan personally to make the payment ...... I was sure of recovery of rent from Sri Srinivasan and therefore I did not ask

Sri Srinivasan to vacate the room.

So P.W. 2''s evidence does not establish that any demand for payment of rent was made on the appellant. The evidence of P.W. 1 shows that only

statement of rent is prepared by him and that he does directly collect the arrears of rent from the customers and only the Chief Cashier used to

demand the rent from the occupants. In cross-examination P.W. 1, state ""I asked Sri Srinivasan to pay the rent charges about two times but he

told that he will pay the amount to the Manager."" Whether this can constitute evidence for demand for payment of rent, we think not. Before

making a demand, there should he quantification of rent payable. When the monthly tariff rate has not been fixed and no quantification of rent or bill

was issued to the appellant, how can there be demand for payment of rent on the appellant ? A valid demand for payment of rent is not, therefore,

established by the evidence of P.W. I.

Now we proceed to the next question whether the finding that there was demand for payment of rent is contrary to the evidence on record.

Exhibit D-1 is a letter issued to the appellant at the time of final settlement of the rent bill. Exhibit D-1 recites -

Sri Ranga Lodge Madurai,

dt. 1-12-76

To

R. Srinivasan,

[income tax Officer,

Madurai,

Sir,

We are sending herewith our final stamped receipt for Rs. 5,418 (Five thousand four hundred and fifteen only) towards the rent for your stay in our

Lodge. On enquiry, we understand that our accountant Gopalakrishnan has been negligent in the settlement of your account even though you had

been asking for settlement of the same. We regret for the inconvenience caused to you. Thanking you.

Yours faithfully,

Sd ...............

for Ranga Lodge.

The learned counsel for the respondents contended that there was no provocation for writing Exhibit D-1 to the appellant and its reading sounds so

artificial that it cannot be believed as genuine letter. When the monthly rent payable by the appellant was settled after a considerable lapse of time,

why there was such an inordinate delay has to the explained, and the Hotel Management under Exhibit D-1 explains by stating that the Accountant

Gopalakrishnan was negligent in the settlement of account, though the appellant has been asking for settlement of the same. The explanation offered

under Exhibit D-1 is quite natural and convincing. The plea that there was not provocation for the Hotel Management to write a letter like Exhibit

D-1 cannot, therefore, be accepted.

With regard to the doubts thrown on the genuiness of Exhibit D-1. P.W. 2 has state that Exhibit D-1 was shown to him at the time of issuing the

final bill and his clerk has issued Exhibit D-1. When the hotel management itself has not disowned the letter Exhibit D-1 and accepts that it was

issued at the time of settlement of the final bill, it is not open to the respondents to doubt the genuiness of Exhibit p-1. It was sought to be made out

by the respondents that Exhibit D-1 must have been issued to oblige the appellant and save him from the departmental enquiry and disciplinary

proceedings. The charge memo was issued against the appellant on 27th January, 1978 whereas the letter under Exhibit D-1 was given to the

appellant so early as 1st December, 1976. If the respondent''s plea is to be accepted, it would mean that anticipating departmental proceedings

and to forestall any such departmental enquiry, the hotel management and the appellant must have conspired together and brought about Exhibit D-

1, more than one year before the commencement of the enquiry against the appellant. Could there have been such a conspiracy and what could

have been the motive ? Could there have been such a conspiracy and what could have been the motive ? It is common ground that the appellant

has nothing to do with the assessments (Income Tax, Wealth-tax and Estate duty assessments) of the owners of the lodge. It is also common

ground that no favours were shown by the appellant by use of his official position to the Lodge owners. Apparently the nature of the job of the

appellant was such that he could not have been in a position to do or show any favour to the lodge owners. In fact, the evidence shows the the

monthly rent fixed for the appellant was Rs. 150 as against Rs. 100 fixed for officers of the Commercial tax department. When such is the position

and when an enquiry against the appellant has been commenced by the C.B.I. officials, and that too, at the time of emergency, will the hotel

management go to the extent of conspiring with the appellant and bring about a letter like Exhibit D-1 to save him from the departmental enquiry ?

We think not. It is not disputed that the appellant has paid the mess and telephone bills during the period of his stay in the Lodge and nor rent bills

were ever issued to him. It is also not in dispute that because of the guarantee of permanent occupation of the room, there is variation in the daily

tariff rate of rent and the monthly tariff rate of rent and the monthly tariff rate. Even when the rent was paid in one lump sum by the appellant''s

brother, the monthly tariff rate was not fixed. That accounts for the appellant''s brother sending one lump sum payment of Rs. 6,000 and the

Lodge, after adjusting Rs. 5,415 towards rent paying the balance to the appellant. The appellant''s financial ability to pay the rent is not disputed

and P.W. 2''s evidence shows that he was confident that he can get the rent from the appellant at any time. Viewed against the background of

these facts, the appellant''s contention that the delay in paying the rent was only due to the delay in fixing the monthly tariff rate by the hotel

management, sounds true, and Exhibit D-1 was not brought about to save the appellant from departmental action but merely reflects the true state

of affairs. The person who wrote Exhibit D-1 has not been examined. P.W. 2 has not chosen to state that Exhibit D-I was issued to oblige or help

the appellant is an inference based on surmise, suspicion and conjecture. It, therefore, follows that the finding that there was demand for payment

of rest is not supported by evidence. On the other hand, the finding is contrary to the evidence on record. On this ground the impugned order of

removal from service is liable to be quashed.

In the decision reported in M. Mayandi Vs. Director, Tamil Nadu State Transport Department, , the appellant was suspended from duty

pending enquiry into certain charges levelled against him. On a writ petition filed by the appellant the learned single Judge this court held that there

was no material to support the charges and the charges could not be taken to have been proved. On a writ appeal, a Division Bench of this Court

held that there were sufficient materials to sustain the charges. On appeal, the Supreme Court held that there was no evidence to substantiate the

charges levelled against the appellant, and the order of the Division Bench was set aside and that of the single Judge restored. If there is no

evidence to substantiate the charge levelled against the appellant that can certainly be a ground for interference in writ appeal. In the instant case,

the gravamen of the charge is that in spite of demand the appellant had failed to pay the rent, and as there is no evidence to substantiate the charge

that there was a demand and a failure to pay the rent the impugned order is liable to be quashed.

In the decision reported in Bijili Cotton Mills (P) Ltd. Vs. The Presiding Officer, Industrial Tribunal II and Others, , a vital plea was ignored as

a result of which evidence on that plea came to be excluded and it was pointed out that it was an eminently fit case for interference under Article

226 of the Constitution, the error being gross and palpable and manifest on the face of the record, and resulted in failure of justice by excluding the

evidence on a most vital point. In the instant case, by excluding the consideration of Exhibit D-1, which affords evidence on a most vital plea, there

is a palpable error manifest on the face of the record resulting in failure of justice and as such there is a ground for interference under Article 226 of

the Constitution and the impugned order is accordingly quashed.

Relying on a decision of the Gujarat High Court reported in M.D. Parmar Vs. Y.B. Zala and Another, , the learned counsel for the appellant

contended that delay by itself would constitute denial of reasonable opportunity to show cause and as there was a delay of more than one year in

charge-sheeting the appellant, there is violation of natural justice, and the order passed is vitiated and is liable to be set aside. In the case relied on

by the learned counsel for the appellant, departmental proceedings were initiated against the employee after a delay of 1 1/2 years, after the

occurrence, cannot be penalised for not being able to show cause to the satisfaction of the disciplinary authority and the very delay able to show

cause to the satisfaction of the disciplinary authority and the very delay in initiating proceedings must be held to constitute a denial of reasonable

opportunity to defend himself. The above decision has been followed by this Court in an unreported case in (C. N. Ramasami v. The Chief

Engineer, Distribution, Tamil Nadu Electricity Board and another) 1981 Lab. G.C. 1260. In the instant case, the rent was paid in full and the

receipt obtained on 1st December, 1916. Exhibit D-1 mentions that the Accountant Gopalakrishnan had been negligent in the settlement of

accounts, even though the appellant was asking for settlement of accounts. The charge memo was issued to the appellant only on 27the January,

1978. If the charge memo was issued and enquiry was held soon after payment of rent bill or within a reasonable time thereafter, opportunity for

the appellant would have been available to examine the said Gopalakrishnan and establish his case. As the departmental proceedings commenced

against the appellant nearly 1 1/2 years after the payment of the rent bill, the appellant had lost the valuable opportunity of examining

Gopalakrishnan, as he had expired by that time. If the charge had been levelled against the appellant soon after the lapse, the appellant would have

substantiated his explanation by examining Gopalakrishnan and he cannot now be penalised for his inability to prove his plea to the satisfaction of

the disciplinary authority Under these circumstances the delay in charge sheeting the appellant constitutes a denial of reasonable opportunity to

show cause, and on this ground also the impugned order is liable to be quashed.

What is conduct unbecoming of a Government servant has not been defined or explained in the Central Civil Services (Conduct) Rules, 1964.

According to Webster''s International Dictionary, the word ""unbecoming"" means ""unsuitable"", ""indecorous"", improper''. In the light of the ordinary

dictionary meaning of the word, a conduct which is indecent, reprehensible or abominable involving moral though no legal lapses, is conduct

unbecoming of a Government servant. In the instant case, if the appellant had not paid the rent even after the bill was sent to him or claimed house

rent allowance from the Government without paying the rent to the Lodge, or had done some favours by virtue of his official position and was

expecting that recovery of rent may be waived by the Lodge, or that his financial position was so weak that he could never have been expected to

pay the rent, they may indicate a conduct unbecoming of a Government servant. An innocent indiscreet act on the part of the appellant in not

paying the rent in the hope that he can pay the same as soon as the monthly rent is fixed, cannot be characterised as conduct unbecoming of a

Government servant, especially when a Government servant is permitted to have credit facilities with a bona fide trader under Rule 16 of the

Central Civil Services (Conduct) Rules, 1964. The learned counsel for the respondent relied on a decision of a Division Bench of the Kerala High

Court in (Natarajan v. Divisional Superintendent, Southern Railway), (O.P. No. 284 of 1973, dated on 12th March, 1975.) There the charge was

that the delinquent official issued cheques knowing full well that there was no sufficient fund in the bank to honour those cheques and he had thus

failed to maintain absolute integrity and devotion to duty and his conduct was unbecoming of a Government servant. In the instant case, there is no

charge against the appellant that he failed to maintain absolute integrity and devotion to duty. The decision relied on by the respondents can,

therefore, have no application to the facts of this case.

From the evidence on record, it is seen that the appellant has extensive jurisdiction extending to five districts and for about 20 days in a month

he has to be on tour. He left the lodge on 3rd September, 1976 and in October 1976, he settled the rent bill in full. Soon after vacating the Lodge

the appellant had taken steps to pay the bill.

The appellant has received letters of appreciation and encomiums have been showered on him for his ability for detailed investigation and

successfully prosecuting an assessee for concealment of income and for passing assessment orders making huge additions to the income returned

and being upheld by the appellate authority. His ability in promptly (sic) assessing has also been acclaimed by his superiors. When even a small

recognition or verbal appreciation of the work done by subordinate officers has almost become a rare phenomenon in government service, it is no

mean achievement for the appellant to have received letters of appreciation and encomiums for the good work done from superior officers of

different designations and rank and at different points of time. That an unblemished, dedicated and devoted career of 36 years should have ended

in ignominy with all the social stigma by the order of removal from service, is indeed unfortunate and it only highlights the general belief and dictum

that inscrutable are the ways of destiny. That the appellant had to suffer the agony in silence and vindicate his cause in a Court of law by pursuing

litigation lasting over a period of more than two years with all the expenses, anguish and uncertainty, is itself a sufficient punishment for the innocent

indiscreet act committed by him. The appellant is attaining super annuation age in a few days from this date. The end is at sight. The time to depart

has come. May the departure be in peace. With these observations, we allow the writ appeal and quash the impugned order removing the

appellant from service. Parties to bear their own costs.