TMI Blog2013 (2) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... examination on 17.2.1990 and 18.2.1990 held for recruitment of Assistant Surgeons. 3. In the examination held on 17.2.1990, six candidates sitting in Hall No. 76 were given the question papers of the afternoon examination in the morning examination. As soon as the Chief Invigilator Shri Syed Abdul Kareem came to know about this, he took back the question papers of the afternoon examination and issued the question papers meant for morning examination. This incident was reported in the newspapers. The Commission took serious view of the matter and got registered a First Information Report. Simultaneously, the Controller of Examinations recorded the statement of the Chief Invigilator on 20.2.1990 and 22.2.1990. The same is reproduced below: STATEMENT OF SYED ABDUL KAREEM GIVEN TO THE COTROLLER. The following fact are submitted. I was posted as chief Invigilator to conduct examination in Bharathi Arts College for women, North Madras on 17.2.90 FN and AN and on 18.2.90 FN. I collected the question papers in two bundles one for FN Session and another for AN session at 8.00 A.M. from the TNPSC office and took them by Auto to the examination centre. At about 9.50 A.M. on 17.2.90 myself wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey refused to get. The AN session question papers received back from the candidates six in No. were kept in my pocket first and then kept in my bag after 2 p.m. Before me Sd/- Controller of Examinations Sd/- Syed Abdul Kareem. 20.2.90. In continuation of my statement dated 20.2.90 given to the Controller of Examinations it is further stated that I missed to mention the following facts there in it, at about 12.30 p.m. Thiru Gurumoorthy, a Member of TNPSC visited the examination centre and met me and enquired about the conduct of the examination. Though I was prepared to inform the Member about the receipt of Mingling of question papers, again Mr. Mahalingam stopped me and requested not to tell. After about some time the Member left the centre. At about 3.00 P.M. one of the Under Secretaries of the TNPSC office visited the Examination Centre and took a written statement from me. Again I did not inform him the fact of the mingle of the question papers in the morning session at the insistence of the same person Mr. Mahalingm. Though I should have informed the fact to the both the officials but did not do so under the impression that being a senior staff of the TNPSC office Mr. Mahaling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons to assist me. But certain persons informed me over phone at G.H. that it is not possible for them to assist me. Again I went to the TNPSC Office on 16.2.90 and informed the position to the concerned Superintendent at about 2 noon. He told me that they had posted 5 persons to assist me from their section. Kindly conduct the examination with them and asked his Assistant by name Saveriyar to give me the names of 5 persons in writing. He gave me a list in his hand writing as (1) Udhayakumar; 2) Sekaran; 3) Mahalingam; 4) Aasir and the name of another person not known but know the person. On 16.2.90 Mahalingam came to my office at G.H. at 12.00 hours and told me that he is on leave and studying for Group I examination but he will come and assist me. Mahalingam is known to me from the year 1985-86 onwards. On the next day that is on 17.2.90 I went to TNPSC office at 8.00 AM and got two bundles containing question papers by affixing seal on the cloth as 17.2.90 Forenoon 10.00 AM to 12.00 Noon as one bundle and 17.2.90 Afternoon 2.00 PM to 5 PM as another bundle and went Bharathi Women's College in an Auto and reached there at about 8.45 AM. Mahalingam was waiting there. 19 persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the afternoon. I kept the said question papers in a cover. At about 12 Noon one member of TNPSC Mr. Gurumurthi came there. He asked me whether any problem. I asked Mahalingam whether we will inform to him. But Mahalingam told me that it is not necessary to say this now as we have not given any report in the morning itself as such if we say it now it will became a mistake. Hence I have not informed it to him. He saw the afternoon bundle with the seal and he did not verify the forenoon question paper bundle and left away. All the invigilators made a complaint to Gurumurthi that the amount paid to them is not sufficient. He gave a reply that we had already informed about it to the Government. Then at 2.00 PM Mr. Nithyanandam, Under Secretary of TNPSC office came there. He also made enquiry about the examination. He got a statement from me. I gave a report as nothing special. At that time at about 1.50 Noon, I have opened the afternoon bundle in the presence of (1) Balan and (2) Sundararaman in the face slip it is found as 17.2.90 2.00 PM to 5.00 PM and written as 410 Question papers and I got the signature from both of them and I have also affixed my signature. Then I gave the answe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvigilator while he was on Unearned Leave on Private Affairs. 2. That, he had gone to the examination hall and take up the official work and acted as Invigilator while he was on leave. 3. That, he had prevented the Chief Invigilator from sending a report to the Controller of Examinations about the distribution of afternoon question paper in the forenoon and the resultant leakage of question paper. 6. In his reply, the Appellant pointed out that his name did not figure in the first information report got registered with the police and the remand report and that the real culprits had already been apprehended. The Appellant also claimed that he was not connected with the leakage of question papers. 7. The copies of two statements made by the Chief Invigilator were not supplied to the Appellant and he was asked to make a statement by the Enquiry Officer. In his statement dated 12.10.1990, the Appellant denied all the allegations levelled against him. For the sake of reference, the Appellant's statement is reproduced below: Charges framed in this office Memorandum No: 2316/D5/1990 dated: 27.3.90 have been read out to Thiru R. Mahalingam. Question: Do you accept the charges? Answer: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llotted to the work of distribution of question paper to each hall? Ans: No. Que: What do you say about charge 3 framed against you? Ans: I have nothing to say about the charge No. 3 since the office in its Memorandum dated 11.10.90 has stated to the effect that enquiry by the Police in connection with the leakage of question papers (Assistant Surgeon recruitment) is going on separately whereas departmental action has been taken against him mainly for his having unauthorisedly acted as Invigilator while he was on leave. Que: Do you want personal hearing besides oral enquiry? Ans: No: Que: Whether you want to say anything more about the charges? Ans: Yes. Three charges were framed. First two charges are one and the same for which I have given authoritative evidence. For the third charge i.e., resultant leakage of question paper was referred to police for investigation. Moreover the third charge has not been pressed in the office Memorandum dated 11.10.90. When I moved the court for anticipatory bail it was stated before the Court in the counter affidavit that the Petitioner was interrogated in connection with mixing of question paper and not to the leakage of question paper. Secondl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer which appears to have been made out entirely relying upon the report (Dated 22nd February 1990) of the Chief Invigilator, miserably-superseding the factual evidences deposed by me at the oral enquiry. While the Chief Invigilator was apparently, not at all interrogated in regard to the correctness of his statement, the credibility of his report is doubtful. As such, the report of the Enquiry officer which is entirely based upon it, is seemingly questionable and appears arbitrary too. However, to enable me to defend the charges a copy of the report of the Chief Invigilator may kindly be furnished to me. Further, to back up my statement that the Chief Invigilator, before permitting me to take up the 'Invigilation Duty' did verify with his papers and records and ticked against my name found therein among other personnel of the Tamil Nadu Public Service Commission appointed as Invigilators by the Office viz. Thiruvalargal M. Segaran and Udhayakumar, a copy (preferably Xerox copy) of the list of Invigilators sent to the Chief Invigilator may kindly be obtained from the Chief Invigilator and furnished to me. On receipt of the above copies of the records I shall submit my s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consider whether there was some tangible evidence for proving the charge against the delinquent and such evidence reasonably supports the conclusions recorded by the competent authority. If the Court comes to the conclusion that the enquiry was held in consonance with the prescribed procedure and the rules of natural justice and the conclusion recorded by the disciplinary authority is supported by some tangible evidence, then there is no scope for interference with the discretion exercised by the disciplinary authority to impose the particular punishment except when the same is found to be wholly disproportionate to the misconduct found proved or shocks the conscience of the Court. 13. Having noticed the parameters laid down by this Court for exercise of the power of judicial review in such matters, we shall now consider whether the Appellant has succeeded in showing that the High Court committed an error by declining his prayer for quashing the order of punishment. 14. Rule 8 of the Rules specifies various penalties including dismissal from service which can be imposed on a member of the Civil Service of the State or a person holding Civil Post under the State. Rule 17(b), which c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es such jurisdiction, the inquiring authority so succeeding may act on the evidence so recorded by its predecessor or partly recorded by its predecessor and partly recorded by itself: Provided that if the succeeding inquiring authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, it may recall examine, cross-examine and re-examine any such witnesses as hereinbefore provided, (ii) After the inquiry or personal hearing referred to in Clause (i) has been completed, the authority competent to impose the penalty specified in that clause, is of the opinion, on the basis of the evidence adduced during the inquiry, that any of the penalties specified therein should be imposed on the Government Servant it shall make an order imposing such penalty and it shall not be necessary to give the person charged any opportunity of making representation on the penalty proposed to be imposed: XXX XXX XXX 15. An analysis of the above reproduced rule makes it clear that holding of an oral enquiry is sine qua non for recording a finding by the enquiring authority and the report of enquiry must contain s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Chairman of the Commission that the Appellant had unauthorisedly worked as Invigilator on 17.2.1990 and 18.2.1990. 18. At the cost of repetition, it deserves to be mentioned that the Appellant had no role to play in the matter of mixing of the question papers of the afternoon examination with the morning examination. Before the Enquiry Officer, no evidence was produced by the Commission to prove that the Appellant had the custody of the question papers. Rather, the statements made by the Chief Invigilator before the Inspector, Crime Investigation Department and the Controller of Examinations clearly show that he had collected the question papers from the office of the Commission, that the seals were opened at the examination center in the presence of two persons and the Appellant had not played any role in the exercise. Therefore, the Appellant cannot be blamed for distribution of wrong question papers to the candidates or the so-called leakage of the question papers. 19. In view of the above discussion, we may have remitted the case to the Commission for reconsideration of the entire matter but, keeping in view the fact that the Appellant has already retired from service and h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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