N. Rajarathinam Vs. State of T.N. and anr. - Court Judgment

Excerpt:
- section 25 & contract act, 1872, section 28: [altamas kabir & cyriac joseph, jj] transfer of petition - jurisdiction held, where two courts or more have jurisdiction to try a suit or proceeding under the provisions of the code of civil procedure, an agreement between the parties that one of such courts would have jurisdiction to decide the disputes arising between the parties from such agreement would not be contrary to public policy and would not, therefore, be contrary to the provisions of section 28 of the indian contract act. - the tribunal recommended dismissal of the petitioner from service on the basis of the finding that the preponderance of evidence established that petitioner had demanded and accepted illegal gratification from pw-1 (shammugasundaram). accepting the report, the disciplinary authority, by its order dated january 6, 1989, dismissed the petitioner from service. subsequently, when an appeal was filed in this court, this court by its order dated september 8, 1995 set aside the tribunal's order and held that the tribunal is not a fact finding authority and the jurisdiction of the tribunal is such matters is well settled. it is true that the tamil nadu public service commission had recommended to take a lenient view in the matter but the government had not accepted the recommendation. if all the relevant facts and circumstances and the evidence on record are taken into consideration and it is found that the evidence establishes misconduct against a public servant, the disciplinary, authority is perfectly empowered to take appropriate decision as to the nature of the findings on the proof of guilt.order1. delay condoned.2. this special leave petition has been filed against an order of the tamil nadu administrative tribunal, madras bench, made on february 26, 1996 in oa no. 2152 of 1991. the petitioner, while working as assistant commissioner of commercial taxes, demanded and accepted illegal gratification. consequently, he was suspended from service on october 1, 1995. an enquiry into the charges was conducted by the tribunal for disciplinary proceedings. the tribunal recommended dismissal of the petitioner from service on the basis of the finding that the preponderance of evidence established that petitioner had demanded and accepted illegal gratification from pw-1 (shammugasundaram). accepting the report, the disciplinary authority, by its order dated january 6, 1989, dismissed the petitioner from service. the petitioner then filed oa in the tribunal. in the first instance, the tribunal allowed the petition. subsequently, when an appeal was filed in this court, this court by its order dated september 8, 1995 set aside the tribunal's order and held that the tribunal is not a fact finding authority and the jurisdiction of the tribunal is such matters is well settled. it was also held that administrative member cannot alone decide the matter. after the matter was remitted to the tribunal, it held that though other witnesses had turned hostile, the evidence of pw-1 other evidence on record was found to be sufficient to dismiss the petitioner from service. accordingly, the tribunal has upheld the order of dismissal from service. thus, this special leave.3. mr. ambrish kumar, learned counsel for the petitioner, has contended that as many as 17 witnesses examined by the government to prove the charges of demand and acceptance, have turned hostile and they were declared hostile by the prosecution. the solitary evidence by pw-1, chronic defaulter in payment of sales tax, is without corroboration on material particulars and is not sufficient for order of dismissal of the petitioner from service. we find no force in the contention. admittedly, the evidence act has no application for the disciplinary proceedings. the report of the tribunal was material before the disciplinary authority to take action in accordance with law. it is true that the tamil nadu public service commission had recommended to take a lenient view in the matter but the government had not accepted the recommendation. the view of the public service commission being only recommendatory, the government was not bound to accept the recommendation made by the public service commission. taking all the facts and the circumstances of the case, the government had accepted the finding of the tribunal that preponderance of probabilities did establish that the petitioner had demanded and accepted illegal gratification from pw-1 and thereby the committed misconduct rightly leading to dismissal from service. this finding having been based upon the evidence of pw-1, it cannot be said that the findings is based upon no evidence. it is for the disciplinary authority to take into consideration all the relevant facts and circumstances. if all the relevant facts and circumstances and the evidence on record are taken into consideration and it is found that the evidence establishes misconduct against a public servant, the disciplinary, authority is perfectly empowered to take appropriate decision as to the nature of the findings on the proof of guilt. once there is a finding as regards the proof of misconduct, what should be the nature of the punishment to be imposed is for the disciplinary authority to consider. while making decision to impose punishment of dismissal from service, if the disciplinary authority had taken the totality of all the facts and circumstances into consideration, it is for the authority to take the decision keeping in view the discipline in the service. though this court is empowered to go into the question as to the nature of the punishment imposed, it has to be considered in the peculiar facts and circumstances of each case. no doubt, there is no allegation of misconduct against the officer during his earlier carrier. but it does not mean that proved allegation is not sufficient to impose the penalty of dismissal from service. considered from this perspective, we think that there is not illegality in the order passed by the tribunal warranting an interference.4. accordingly, this special leave petition is dismissed.

Judgment:
ORDER

1. Delay condoned.

2. This special leave petition has been filed against an order of the Tamil Nadu Administrative Tribunal, Madras Bench, made on February 26, 1996 in OA No. 2152 of 1991. The petitioner, while working as Assistant Commissioner of Commercial Taxes, demanded and accepted illegal gratification. Consequently, he was suspended from service on October 1, 1995. An enquiry into the charges was conducted by the Tribunal for disciplinary proceedings. The Tribunal recommended dismissal of the petitioner from service on the basis of the finding that the preponderance of evidence established that petitioner had demanded and accepted illegal gratification from PW-1 (Shammugasundaram). Accepting the report, the disciplinary authority, by its order dated January 6, 1989, dismissed the petitioner from service. The petitioner then filed OA in the Tribunal. In the first instance, the Tribunal allowed the petition. Subsequently, when an appeal was filed in this Court, this Court by its order dated September 8, 1995 set aside the Tribunal's order and held that the Tribunal is not a fact finding authority and the jurisdiction of the Tribunal is such matters is well settled. It was also held that Administrative Member cannot alone decide the matter. After the matter was remitted to the Tribunal, it held that though other witnesses had turned hostile, the evidence of PW-1 other evidence on record was found to be sufficient to dismiss the petitioner from service. Accordingly, the Tribunal has upheld the order of dismissal from service. Thus, this special leave.

3. Mr. Ambrish Kumar, learned Counsel for the petitioner, has contended that as many as 17 witnesses examined by the Government to prove the charges of demand and acceptance, have turned hostile and they were declared hostile by the prosecution. The solitary evidence by PW-1, chronic defaulter in payment of sales tax, is without corroboration on material particulars and is not sufficient for order of dismissal of the petitioner from service. We find no force in the contention. Admittedly, the Evidence Act has no application for the disciplinary proceedings. The report of the Tribunal was material before the disciplinary authority to take action in accordance with law. It is true that the Tamil Nadu Public Service Commission had recommended to take a lenient view in the matter but the Government had not accepted the recommendation. The view of the Public Service Commission being only recommendatory, the Government was not bound to accept the recommendation made by the Public Service Commission. Taking all the facts and the circumstances of the case, the Government had accepted the finding of the Tribunal that preponderance of probabilities did establish that the petitioner had demanded and accepted illegal gratification from PW-1 and thereby the committed misconduct rightly leading to dismissal from service. This finding having been based upon the evidence of PW-1, it cannot be said that the findings is based upon no evidence. It is for the disciplinary authority to take into consideration all the relevant facts and circumstances. If all the relevant facts and circumstances and the evidence on record are taken into consideration and it is found that the evidence establishes misconduct against a public servant, the disciplinary, authority is perfectly empowered to take appropriate decision as to the nature of the findings on the proof of guilt. Once there is a finding as regards the proof of misconduct, what should be the nature of the punishment to be imposed is for the disciplinary authority to consider. While making decision to impose punishment of dismissal from service, if the disciplinary authority had taken the totality of all the facts and circumstances into consideration, it is for the authority to take the decision keeping in view the discipline in the service. Though this Court is empowered to go into the question as to the nature of the punishment imposed, it has to be considered in the peculiar facts and circumstances of each case. No doubt, there is no allegation of misconduct against the officer during his earlier carrier. But it does not mean that proved allegation is not sufficient to impose the penalty of dismissal from service. Considered from this perspective, we think that there is not illegality in the order passed by the Tribunal warranting an interference.

4. Accordingly, this special leave petition is dismissed.