G.Umasekaran v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDated:27-04-2007 Coram :The Hon’ble Mr. Justice F.M.IBRAHIM KALIFULLA andThe Hon’ble Mr. Justice S.TAMILVANAN Writ Petition No.29588 of 2004G.Umasekaran ... PetitionerVs.1. State of Tamil Nadu rep. by Secretary to Government Home [Transport II] Department, Fort St. George, Chennai – 600 009.2. The Transport Commissioner Chepauk, Chennai – 600 005.3. Tamil Nadu Administrative Tribunal Chennai – 600 104. rep. by its Registrar. .. RespondentsWrit Petition, seeking certiorarified mandamus is filed by thepetitioner, under Article 226 of the Constitution of India, for directionto call for the records, of the third respondent / Tamil NaduAdministrative Tribunal, relating to its order, dated 15.04.2004, made inO.A.No.3570/2003, whereby the order passed by the first respondent in G.O.(2D) No.358, Home [Transport] Department, dated 21.10.2003 was sought tobe quashed with a prayer to issue consequential directions to therespondents 1 and 2 to reinstate the petitioner in service with allconsequential service and monetary benefits. For Petitioner : Mr.M.RaviFor Respondents : Mr.V.Viswanathan, AGP https://hcservices.ecourts.gov.in/hcservices/ O R D E R(Order of the Court was made by S.TAMILVANAN, J.)Aggrieved by the order, dated 15.04.2004, passed in O.A.No.3570 of2003 by the Tamil Nadu Administrative Tribunal, Chennai, the petitionerherein has preferred this writ petition.2. The petitioner herein Thiru.G.Umasekaran was formerly working asRegional Transport Officer at Coimbatore, Erode and Madurai. During therelevant period from 01.03.1986 to 31.12.1990, while working as RegionalTransport Officer, he was charged for abusing his official position, bycorrupt practice, and acquired assets in the form of movable and immovableproperties in his name and also in the name of his wife to an extent ofRs.3,99,645.24/- disproportionate to the known sources of his legitimateincome.3. It was alleged by the second respondent that the petitioner hadconstructed a house, bearing D.No.12 and 13, at Anaikaran Thottam,Ganapathy Village, Coimbatore in the name of his wife Tmt.U.Manimozhi,during the year 1989-1990, without getting permission from the competentauthority, as required under Rule 7 (i) of Tamil Nadu Government ServantsConduct Rules, 1973. He failed to obtain prior permission from theDepartment for purchasing a house bearing Door No.178, Lakshmi MillsColony, P.N.Palayam, Coimbatore in the name of his wife in February 1989,thereby violating Rule 7 (1) of Tamil Nadu Government Servants ConductRules, 1973. 4. On the aforesaid charges, the concerned Disciplinary Authority,had conducted enquiry, 27 witnesses were examined on the side of theprosecution and 2 witnesses were examined on the side of the writpetitioner as defence witnesses.5. The Tribunal for Disciplinary Proceedings, considering theevidence of both sides, has held that the charges are proved, for whichgiven the following reasons :I. There is no evidence to prove that his wife received loans fromThiru.C.V.Ramiah and Thiru.S.Kannan without any interest for constructionof house at Ganapathy Village .II. There is no evidence to prove that the D.O's wife had independentearning on regular basis nor she had had her own sources of income.III. She was used as a facade by the delinquent officer to cover uphis illegal income, since she cannot be credited with the construction oftwo houses on her own without the assistance of her husband.IV. The income returns were filed in 1987 in a hurried manner by theD.O's wife. https://hcservices.ecourts.gov.in/hcservices/ V. The income of his wife prior to the period covered under incometax returns was not shown in any property statement.VI. Therefore, the so called income at the beginning of the checkperiod projected by the delinquent officer based on the income tax returnis either already or there was no income at all.VII. The claim of the D.O. Relating to rental income and rentaladvance prior to the check period cannot be taken into account, unless itis definitely proved by documentary or acceptable evidence.6. The petitioner herein offered his further representation asfollows :I. The house at Erode was acquired on 23.05.1975 i.e., beforethe check period. But, the Tribunal has failed to consider the incomederived from the house.II. His wife, Tmt.Manimozhi has obtained a loan of Rs.1,20,000/-from CANFIN Housing construction towards the construction of her house.III. Her father has paid Rs.1,30,000/- to her being a share inher father's property.IV. The value of the buildings has been fixed much higher thanthe rates prevailed before 10 years.7. The Tribunal for Disciplinary Proceedings, after conductingenquiry, sent its reports, dated 27.10.1999 to the first respondent /Secretary to Government , Home [Transport II] Department, Chennai, whereinthe enquiry officer has held that charge No.1 had been partly proved andother two charges were fully proved. Based on which, the first respondent,by his letter dated, 01.12.1999 in Letter No.117721 / Transport II / 99-1furnished copy of the enquiry report to the petitioner and providedopportunity to make his representations. Accordingly, the petitionersubmitted his written representation, dated 12.01.2000, disputing thefindings of the Tribunal for Disciplinary Proceedings. After consideringthe representations made by the petitioner, the first respondent held thatthere is no merit in the appeal and thereby dismissed the same and hence,the petitioner filed O.A.No.3081/2003, on the file of the Tamil NaduAdministrative Tribunal. The Tamil Nadu Administrative Tribunal, by itsorder, dated 11.09.2003 in O.A.No.3081/2000, issued directions to theGovernment to pass final orders, within a period of three months.Thereupon, the first respondent in G.O. (2D) No.358, Home [Transport II]Department, dated 21.10.2003, passed final orders, after consulting theTamil Nadu Public Service Commission in the matter, imposing the penaltyof compulsory retirement to the petitioner from service. Aggrieved by thesaid order, the petitioner preferred O.A.No.3570/2003 on the file of theTamil Nadu Administrative Tribunal, which was dismissed by its order,dated 15.04.2004 on merits. Aggrieved by which, the petitioner has filedthis writ petition. https://hcservices.ecourts.gov.in/hcservices/

8. According to Mr.M.Ravi, learned counsel for the petitioner, thoughas per charge No.1, the petitioner is alleged to have acquired assets inthe form of movable and immovable properties in his name and also in thename of his wife to the extent of Rs.3,99,645.24/- disproportionate to hisknown sources of income, the tribunal for Disciplinary Proceedings hasassessed the value of the property only at Rs.1,37,725.42/- and held theother two charges have been proved against the petitioner, under Rule 7(1) of Tamil Nadu Government Servants Conduct Rules, 1973 and hence, thefinding is not sustainable. According to the learned counsel for thepetitioner, the third respondent, Tamil Nadu Administrative Tribunal haserroneously held that the findings of the Tribunal for DisciplinaryProceedings are based on evidence and the conclusion arrived at was notperverse.9. Further, the learned counsel submitted that initially in the year1995, notice was issued on the petitioner by the Department, alleging thatthere was disproportionate wealth acquired by him to the tune ofRs.23,301/- and subsequently, notice, dated 25.08.1995 was issued, holdingthat there was disproportionate wealth of Rs.4,18,645.24/- and theGovernment order was issued on 30.09.1996, referring the matter to theTribunal for Disciplinary Proceedings for enquiry, on the basis of thefinal report of the Vigilance and Anti corruption Department, wherein itwas alleged that there was disproportionate wealth of Rs.3,99,645.24/-.The finding of the Tribunal for Disciplinary Proceedings was that therewas only disproportionate wealth to the tune of Rs.1,37,725.42/- andhence, the Department was not very clear on the allegations made againstthe petitioner and therefore, the learned counsel submitted that theentire proceedings are liable to be quashed, as not sustainable in law. 10. It is seen from the records that following charges have beenframed against the petitioner herein :" Charge – I : The actuated by corrupt motive and inabuse of his (Accused Officer's) official position andauthority, while he (Accused Officer) was working asMotor Vehicle Inspector Grade – I at the office ofRegional Transport Officer at Coimbatore, Erode andMadurai during the check period of 01.03.1986 to31.12.1990, had acquired assets in the form of movableand immovable properties (such as house, house sites,buildings etc) in his name and on his behalf in thename of his wife Tmt.U.Manimozhi to the extent ofRs.3,99,645.24/- (Rupees Three lakhs ninety ninethousand six hundred and forty five and paise twentyfour only) which are found to be disproportionate tothe known sources of his (Accused Officer's)legitimate income and which he (Accused Officer) hadnot satisfactorily accounted for and thereby he(Accused Officer) had failed to maintain absolute https://hcservices.ecourts.gov.in/hcservices/ integrity and devotion to duty in Government Serviceand conducted himself in a manner unbecoming ofGovernment Servant.Charge – II : That he (Accused Officer) hadconstructed a house in Door Nos.12 and 13 inS.F.No.257 at Anaikaran Thottam, Ganapathy Village,Coimbatore District in his wife's name during 1989-1990 without getting prior permission from thecompetent authority as per Rule 7 (1) of Tamil NaduGovernment Servants' Conduct Rules 1973 and thereby hehad failed to maintain absolute integrity and devotionto duty in Government Service and conducted himself ina manner unbecoming of a Government Service.Charge – III : That the (Accused Officer) had failedto obtain prior permission from the department for thepurchase of the house in D.No.178, Lakshmi MillsColony, P.N.Palayam, Coimbatore in the name of his(Accused Office's) wife Tmt.Manimozhi in February 1989as per Rule 7 (1) of the Tamil Nadu GovernmentServants' Conduct Rules 1973 and thereby he had failedto maintain absolute integrity and devotion to dutyin Government Service and conducted himself in amanner unbecoming of a Government Servant. "11. According to Mr.V.Viswanathan, learned Additional GovernmentPleader appearing for the respondents, based on the departmental enquiry,it was held that the charges levelled against the petitioner were proved.Accordingly, punishment of compulsory retirement was imposed by the firstrespondent on the petitioner. In the application preferred before theAdministrative Tribunal, the petitioner herein has raised the same pleathat the rental income of the petitioner was not taken into account andthe sources of income of the petitioner's wife and that the propertystanding in the name of his wife was purchased by herself, from and out ofher own resource were not taken into consideration. The main chargeagainst the petitioner is that he acquired properties, movable andimmovable disproportionate to his known sources of his income and he wasmotivated by corrupt practice. According to the learned counsel for therespondents, the Tamil Nadu Administrative Tribunal has passed theimpugned order, based on evidence and proper finding and hence, the samecannot be assailed by the petitioner. 12. Mr.M.Ravi, learned counsel appearing for the petitioner submittedthat the Administrative Tribunal has not considered the defence raised bythe petitioner, since the petitioner was not able to give account, onlyfor Rs.1,37,725.42/- and not for the sum of Rs.3,99,645.24/-, as per thefirst charge. According to the learned counsel for the petitioner, thereis manifest error in the order passed by the Administrative Tribunal and https://hcservices.ecourts.gov.in/hcservices/ according to him, the findings given by the Tribunal is not based onevidence and therefore, it has to be construed only as perverse findingand as such, the writ petition has to be allowed, setting aside theimpugned orders of the Tribunal and the authorities. In support of hiscontention, the learned counsel cited the following decisions :1. Kuldeep Singh vs. Commissioner of Police, (1999) 2 SCC 102. Bank of India vs. Degala Suryanarayana, (1999) 5 SCC 762.13. In the decision, Kuldeep Singh vs. Commissioner of Police,reported in (1999) 2 SCC 10, the Hon'ble Supreme Court has ruled asfollows:"6. It is no doubt true that the High Court underArticle 226 or this Court under Article 32 would notinterfere with the findings recorded at thedepartmental enquiry by the disciplinary authority orthe enquiry officer as a matter of course. The Courtcannot sit in appeal over those findings and assumethe role of the appellate authority. But this does notmean that in no circumstance can the Court interfere.The power of judicial review available to the HighCourt as also to this Court under the Constitutiontakes in its stride the domestic enquiry as well andit can interfere with the conclusions reached thereinif there was no evidence to support the findings orthe findings recorded were such as could not have beenreached by an ordinary prudent man or the findingswere perverse or made at the dictates of the superiorauthority."As per this ruling, normally the High Court and the Apex Court will notinterfere with the findings of fact recorded at the domestic enquiry andif the findings of guilt is based on no evidence, or if it is construed asperverse, then the same would be amenable to judicial scrutiny.Therefore, as laid down by the Hon'ble Supreme Court, there is a broaddistinction between proper decisions and the decisions based on perversefinding. As per the rulings of the Hon'ble Apex Court, if there is noevidence or the evidence, which is thoroughly unreliable and no reasonableperson would act upon it, the order could be construed as perverse, but ifthere is some evidence on record, which is acceptable and which could berelied upon, howsoever compendious, it may be, the conclusions would notbe treated as perverse and the findings would not be interfered with. 14. In the decision, Bank of India vs. Degala Suryanarayana, reportedin (1999) 5 SCC 762, the Hon'ble Supreme Court has held as follows :"11. Strict rules of evidence are not applicable todepartmental enquiry proceedings. The only requirementof law is that the allegation against the delinquent https://hcservices.ecourts.gov.in/hcservices/ officer must be established by such evidence actingupon which a reasonable person acting reasonably andwith objectivity may arrive at a finding upholding thegravamen of the charge against the delinquent officer.Mere conjecture or surmises cannot sustain the findingof guilt even in departmental enquiry proceedings. Thecourt exercising the jurisdiction of judicial reviewwould not interfere with the findings of fact arrivedat in the departmental enquiry proceeding excepting ina case of mala fides or perversity i.e. where there isno evidence to support a finding or where a finding issuch that no man acting reasonably and withobjectivity could have arrived at that finding. Thecourt cannot embark upon reappreciating the evidenceor weighing the same like an appellate authority..."15. According to Mr.V.Viswanathan, learned Additional GovernmentPleader appearing for the respondents, in the instant case, there is noperverse finding in the departmental enquiry, as ruled by the Hon'ble ApexCourt and only based on the evidence available on record, it was decidedby the authority that the charges framed against the petitioner have beenproved. As per the findings of the Tribunal, apart from movableproperties, the petitioner and his wife have acquired 3 properties, allsituated in Coimbatore. He purchased a vacant land comprising Door Nos.12and 13 in S.F.No.257 at Anaikaran Thottam, Ganapathy Village, CoimbatoreDistrict and constructed a house between the years 1989-90. He has alsopurchased a house, bearing D.No.178, Lakshmi Mills Colony, P.N.Palayam,Coimbatore and these two properties have been purchased by the petitionerin the name of his wife Mrs.U.Manimozhi. As per the charges framed againsthim, the petitioner built up house, without obtaining permission from theGovernment and he has also taken the sale deed in the name of his wife,without obtaining prior permission, as required under Rule 7 (1) of theTamil Nadu Government Servants' Conduct Rules, 1973. 16. On a perusal of the enquiry report and findings of the Tribunal,we are of the considered view that the findings are supported by evidence.P.Ws. 1 to 3 are persons who are in occupation of shops situated inPettavaithalai belonging to the petitioner's father and they havesubsequently purchased the same from the petitioner, by payingconsideration of Rs.56,000/-. The said amount has been accounted for bythe petitioner, for having paid as sale consideration for the purchase ofproperty by himself and his wife, as found by the Tribunal.17. It is seen that in the defence evidence adduced for thepetitioner, , it has been stated that the petitioner's wife was providedwith a sum of Rs.1,20,000/- by her parents. As held by the Tribunal, thepetitioner's wife was examined as P.W.20, her mother was also examined asP.W.19, but the oral evidence of the petitioner and the other defencewitness would not be sufficient to hold that the properties were purchased https://hcservices.ecourts.gov.in/hcservices/ by the petitioner's wife from and out of her own sources of income.Therefore, we are of the considered view that there is no perverse findingwith regard to the same.18. It is relevant to refer Rule 7 (1) (a) of the Tamil NaduGovernment Servants' Conduct Rules, 1973, which reads as follows :" 7 (1) (a) : No Government servant shall, except afternotice to the prescribed authority, acquire or disposeof any immovable property by lease, mortgage, purchase,sale, gift, exchange or otherwise either in his ownname or in the name of any member of his family." 19. Rule 7 (1) (b) of the said Rules reads thus :"7 (1) (b) : Every Government servant, for theconstruction or extension or acquisition of a house,shall report to the prescribed authority in thefollowing manner :-(i) before stating the construction or extensionor entering into transaction for acquisition of a houseeither from out of loan or advance from the Governmentor others or part final withdrawal from the ProvidentFund, he shall obtain previous sanction of theprescribed authority in Form VI or VI-A, as the casemay be, in Schedule I appended to these rules.(ii) after completing the construction orextension, he shall report to the prescribed authorityin Form VII in Schedule I appended to these rules.The details in Forms VI and VII in schedule Iappended to these rules shall be furnished wherever itis possible to do so. Where, however, it is notpossible to furnish details, the Government servantshall mention the covered area on which the building iserected or proposed to be erected, and the estimatedcost of the building."20. The property was admittedly purchased in the name of the wife ofthe petitioner, and as per Rule 7 (1) of the Tamil Nadu GovernmentServants' Conduct Rules, 1973, it is clear that the petitioner should havegiven notice to the prescribed authority, prior to the acquisition ofproperty. But, in this case, the aforesaid provision was not complied withby the petitioner. The alleged gift amount paid by the parents of thepetitioner's wife was disbelieved in the departmental proceedings. Theabove finding cannot be construed as erroneous. Considering the orderpassed by the first respondent with reference to the evidence available onrecord, the Administrative Tribunal, has upheld the finding that thecharges levelled against the petitioner have been proved and the https://hcservices.ecourts.gov.in/hcservices/ punishment of compulsory retirement as proportionate one, on the facts andcircumstances of the case.21. As per the findings of the respondents, based on evidence, therewas disproportionate assets to the tune of Rs.1,37,725.42/- and therespondents have disbelieved the contention that the petitioner and hiswife had borrowed Rs.1,20,000/-, as there is no legally acceptableevidence on the side of the petitioner for the alleged borrowing. 22. In view of the Rule 7 (1) of the Tamil Nadu Government Servants'Conduct Rules, 1973 and in the light of the decisions of the Hon'ble ApexCourt referred above, we are of the considered view that the finding ofthe departmental proceedings and the decision of the respondents are basedon evidence available on record and there is no perverse finding. Hence,the impugned order in the writ petition warrants no interference of thisCourt and hence, the writ petition fails and the same is liable to bedismissed.23. In the result, the writ petition is dismissed. No order as tocosts. Sd/Asst.Registrar/true copy/Sub Asst.RegistrartsvnTo1. The Secretary to Government Home [Transport II] Department, State of Tamil Nadu Fort St. George, Chennai – 600 009.2. The Transport Commissioner Chepauk, Chennai – 600 005.1 cc To The Government Pleader, SR.29991.1 cc To Mr.M.Ravi, Advocate, SR.29604. W.P.No.29588 of 2004AKR(CO)RVL 07.06.2007