Viswanathan.K.C v. D. Pappachan, District Judge, Ernakulam (Disciplinary Authority) & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **MONDAY, THE 10TH DAY OF SEPTEMBER 2012/19TH BHADRA 1934** **WP(C).No. 10485 of 2009 (R) ---------------------------** ## **PETITIONER(S):** ## **-------------** **VISWANATHAN.K.C, AGED 49 YEARS, S/O. NALINAKSHA MENON, CHUKKUNGAL HOUSE, THURUTHISSERY, MAIKKAD.P.O, ERNAKULAM DISTRICT, 683 589 (LOWER DIVISION CLERK, MUNSIFF'S COURT, ALUVA (NOW UNDER ORDERS OF DISMISSAL)** **BY ADVS.SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE SRI.K.RAMAKUMAR (SR.)** **RESPONDENT(S):** **--------------** **1. SRI.D. PAPPACHAN, DISTRICT JUDGE, ERNAKULAM (DISCIPLINARY AUTHORITY)** **2. SRI.A.V. RAMAKRISHNA PILLAI, REGISTRAR, SUBORDINATE REGISTRY, HIGH COURT OF KERALA, (APPELLATE AUTHORITY)** **3. THE HIGH COURT OF KERALA, REPRESENTED BY THE REGISTRAR GENERAL, ERNAKULAM. BY ADV. SRI.KRB.KAIMAL (SR.) BY ADV. SRI.B.UNNIKRISHNA KAIMAL BY GOVERNMENT PLEADER SMT.M.J.RAJASREE BY SRI.P.C.SASIDHARAN, SC, KPSC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No.10485 of 2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE PROCEEDINGS DATED 4.8.2007 OF THE DISTRICT COURT, ERNAKULAM. EXT.P2: COPY OF THE REPLY DATED 25.2.2008 SUBMITTED BY THE PETITIONER TO THE MEMO OF CHARGES. EXT.P3: COPY OF THE JUDGMENT DATED 3.4.2008 IN WP(C) NO.11149 OF 2008. EXT.P4: COPY OF THE NOTICE DATED 14.3.2008 ISSUED TO THE PETITIONER. EXT.P5: COPY OF THE ENQUIRY REPORT DATED 17.9.2008. EXT.P6: COPY OF THE NOTICE DATED 26.9.2008 RECEIVED BY THE PETITIONER. EXT.P7: COPY OF THE REPLY DATED 30.9.2008 TO EXHIBIT P6 NOTICE. EXT.P8: COPY OF THE PROCEEDINGS DATED 4.11.2008 OF THE DISTRICT COURT, ERNAKULAM. EXT.P9: COPY OF THE APPEAL DATED 24.11.2008 SUBMITTED BY THE PETITIONER BEFORE THE HIGH COURT. EXT.P10: COPY OF THE ORDER DATED 24.2.2009 OF THE APPELLATE AUTHORITY. EXT.P11: COPY OF THE PROCEEDINGS OF THE DISCIPLINARY AUTHORITY. RESPONDENT'S EXHIBITS: NIL** **/TRUE COPY/** **P.A. TO JUDGE** **VPV** S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= ## W.P(C) No. 10485 of 2009 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 10[th] day of September, 2012. ## J U D G M E N T In 1987, the petitioner applied for selection by the Public Service Commission for appointment as a last grade employee in the department of Agriculture of the Government of Kerala. Later, he got inter-department transfer to the Judicial department, and was appointed as Lower Division Clerk in 1989 was in course of time promoted as Amin. While he was so working, the vigilance department of the High Court of Kerala received an anonymous complaint (which forms part of Ext. P11 produced by the petitioner) that the petitioner was a deserter from the army, was court martialled and was sentenced to imprisonment, which the petitioner had not disclosed at the time of applying for selection to the PSC and also at the time of police verification. The Vigilance Department of the High Court of Kerala got the complaint enquired through the Dy.S.P. attached to that Department, who submitted a report finding substance in the allegations against the petitioner. Based on that report, the Registrar (Vigilance) of the High Court of Kerala submitted another report (which also forms part of Ext. P11 produced by the petitioner) reporting to the Chief Justice about the result of the enquiry conducted by the Dy.S.P. The District Judge, Ernakulam, who was the disciplinary authority of the petitioner, by Ext. P1 order, appointed an enquiry officer, an Additional District Judge, who issued a memo containing the charges W.P(C) No. 10485 of 2009 -: 2 :- against the petitioner directing him to submit his statement of defence, and after receiving the statement of defence, in which the petitioner denied the charges, conducted an enquiry and submitted Ext. P5 enquiry report, in which the petitioner was found guilty of non-disclosure of his imprisonment and consequent disqualification. On receipt of the enquiry report, the disciplinary authority forwarded the copy of the report to the petitioner along with Ext. P6 notice to show cause why the punishment of dismissal from the civil service of the Government, which shall be a disqualification for future employment should not be imposed on him. After considering Ext. P7 reply filed by the petitioner, the disciplinary authority, by Ext. P8 order, imposed on the petitioner the penalty of dismissal from service. The petitioner filed Ext. P9 appeal against the order of punishment, which was dismissed by Ext. P10 order. It is challenging the said disciplinary proceedings the petitioner has filed this writ petition seeking the following reliefs: - “i) To call for the records leading to the issue of Exts. P8 & P10 and quash the same by issuance of a writ of certiorari or any other appropriate writ, order or direction; - ii) To issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to immediately reinstate the petitioner back in service in the Kerala Judicial Service.” 2. The case of the petitioner is that the enquiry is vitiated by principles of natural justice and that the charges levelled against the petitioner has not been proved with any W.P(C) No. 10485 of 2009 -: 3 :- acceptable evidence on record. The petitioner raises the following contentions in support of his case: - a) The disciplinary authority himself was the Registrar (Vigilance), who conducted the preliminary enquiry pursuant to which the disciplinary proceedings were initiated and therefore the entire proceedings are vitiated by bias of the disciplinary authority. - b) No memo of charges was issued to the petitioner before the enquiry and the enquiry officer himself framed charges against the petitioner. - c) The petitioner was not furnished a copy of the enquiry report before the disciplinary authority accepted the findings in the enquiry report. The same was furnished only after accepting the findings in the enquiry report, along with the show cause notice proposing punishment. Therefore, the proceedings are vitiated by violation of principles of natural justice, in view of the decision of the Supreme Court in **Managing Director ECIL** V. **B. Karunakar, AIR 1994 SC 1094** . - d) The enquiry officer was biased, as he W.P(C) No. 10485 of 2009 -: 4 :- himself recommended punishment in the enquiry report. - e) The charge was that the petitioner suppressed in the application filed before the PSC, the fact that he had undergone imprisonment in the Court Martial proceedings. But the application submitted by the petitioner, the material document, which only would prove the guilt of the petitioner, was not summoned or proved in the enquiry. Nobody from the PSC was examined also. Therefore there was no material in the enquiry to come to the finding that the petitioner suppressed the fact in the application submitted by him before the PSC. Therefore the findings in the enquiry are perverse. - f) The appellate authority was a person who participated in the disciplinary proceedings and questioned the petitioner and therefore he was biased in the appellate proceedings. The petitioner relies on the following decisions in support of his contentions: ## **T.S. Vasudevan Nair** V. **Director, V.S.S.C. 1988** ## **(1) KLT 582** W.P(C) No. 10485 of 2009 -: 5 :- - (a) **Union of India & ors.** V. **Mohd. Ramzan Khan. AIR 1991 SC 471** - (b) **Managing Director ECIL** V. **B. Karunakar, (1993) 4 SCC 727** - (c) **Badrinath** V. **Government of Tamilnadu and others. (2000) 8 SCC 395** - (d) **Kumaon Mandal Vikas Nigam Ltd.** V. **Girija Shankar Pant & others. (2000) 1 SCC 182** - (e) **Cantonment Executive Officer & anr.** V. **Vijay D. Vani & ors. (2008) 12 SCC 230** - (f) **Mohd. Yunus Khan** V. **State of U.P. & ors. (2010) 10 SCC 539** - (g) **N.K. Vajpai** V. **Union of India & ors. (2012) 4 SCC 65** - (h) **State of Punjab** V. **Davinder Pal Singh Bhullar & ors. 2012 (1) KLD 71 (SC)** - (i) **Kalidas** V. **State of Kerala 1988 (2) KLT 613** - (j) **Jailavudeen** V. **State of Kerala. 2009 (2) KLT 232** - (k) **Dr. C.B. Sudhakaran** V. **Cochin Educational Society & anr. 2009 (1) KHC 685 (DB).** 3. The 2[nd] respondent has filed a counter affidavit on behalf of respondents 2 and 3, seeking to controvert the contentions of the petitioner. Counsel for respondents 2 and W.P(C) No. 10485 of 2009 -: 6 :- 3 seeks to controvert the arguments of the petitioner with the help of the said counter affidavit. According to him, the Registrar (Vigilance), who was later transferred and posted as the District Judge, Ernakulam, and consequently became the disciplinary authority of the petitioner, did not conduct the enquiry. The enquiry was conducted by the Deputy Superintendent of the Vigilance cell and the Registrar (Vigilance) only forwarded a report on the same to the High Court and as such no bias can be attributed to him. Further as the only disciplinary authority of the petitioner. he had to initiate disciplinary proceedings against the petitioner as directed by the High Court. He points out that before the enquiry officer, the petitioner had not raised any objection regarding the want of any charge sheet. The petitioner had in fact submitted Ext. P2 reply to the memo of charges. Further in Ext. P1 order appointing the enquiry officer the charge has been clearly spelt out, based on which only the enquiry was ordered to be conducted. The enquiry officer has only reiterated the charges in the memo issued to the petitioner giving him an opportunity to submit his statement of defence, which the petitioner had done by filing Ext. P2 reply. According to him, the copy of the enquiry report was furnished to the petitioner before imposing the punishment, which only is what is required as per the law laid down by the Supreme Court in **B. Karunakar’s case** (supra). He would contend that even if the enquiry officer’s opinion about the gravity of the misconduct amounts to a recommendation of the penalty, that does not amount to bias, which would vitiate the disciplinary proceedings. He W.P(C) No. 10485 of 2009 -: 7 :- points out that since the facts, that the petitioner was a Havildar in the army, he was court martialled for desertion and he had undergone imprisonment on conviction having been admitted, it was not necessary to summon the application filed by him to find him guilty in so far as every applicant is expected to disclose those facts in the application form. Had he disclosed the same, the PSC would have summarily rejected his application. These circumstances are more than sufficient to find the petitioner guilty of the misconduct is the contention raised. He further points out that in the discharge certificate issued to the petitioner from the army, it is clearly stated that he is UNFIT for further government employment and at the instance of the petitioner himself, the authority who issued the discharge certificate to the petitioner, which was produced in the enquiry, had clarified that as per the Regulation of the Army, any person who is dismissed from the army is not eligible for further employment in Government service. According to him in a departmental enquiry, the standard of proof necessary is only satisfaction of a reasonable prudent man, which has been abundantly satisfied in this case. He also disputes the contention of the petitioner that the appellate authority was a person who participated in the disciplinary proceedings and questioned the petitioner and therefore he was biased in the appellate proceedings. He points out that appellate authority is the High Court and not the Registrar (Subordinate Judiciary), who signed the order on behalf of the High Court. Even otherwise he did not do anything in the enquiry as alleged W.P(C) No. 10485 of 2009 -: 8 :- by the petitioner is his submission. According to him, just because the anonymous complaint was addressed to the Registrar (Subordinate Judiciary) that does not mean that he has recorded the statement of the complainant. Therefore he contends that the disciplinary proceedings do not suffer from any of the vices pointed out by the petitioner. Counsel for the respondents 2 and 3 relies on the following decisions in support of his contentions: - (a) **Managing Director ECIL** V. **B. Karunakar, (1993) 4 SCC 727.** - (b) **State of U.P.** V. **Harendra Arora & anr. (2001) 6 SCC 392.** - (c) **R. Viswanatha Pillai** V. **State of Kerala & Others, (2004) 2 SCC 105.** - **(d) State of Kerala & ors. (2004) 2 SCC 105.** - (e) **Lalith Kumar Modi** V. **Board of Control for Cricket in India & ors. (2011) 10 SCC 106.** 4. I have considered the contentions of the parties in detail, with reference to the arguments advanced and the decisions cited before me. 5. At the outset, I must note that in the matter of testing the validity of administrative and quasi-judicial action on the ground of violation of principles of natural justice, as per the decisions of the Supreme Court, the watch-word is ‘prejudice’. The mere violation of principles W.P(C) No. 10485 of 2009 -: 9 :- of natural justice, by itself, will not vitiate the impugned action, unless prejudice to the person complaining of the violation, on account of such violation, is also proved by him. This law is well settled by various decisions of the Supreme Court on the subject. Reference to the said legal position is available in the decisions of **Managing Director ECIL** V. **B. Karunakar, (1993) 4 SCC 727** and **State of U.P.** V. **Harendra Arora & anr. (2001) 6 SCC 392,** which have been cited before me also. It is all the more so in this case since, admittedly, in the court martial proceedings, the petitioner was imposed the punishment of imprisonment and the petitioner himself had produced a clarification in respect of the endorsement in his discharge certificate to the effect that as per paragraph 168 (c) of the Regulations for the Army, 1987, any person who is dismissed from the Army is not eligible for further employment in Government service. Therefore in view of the Army Regulations the petitioner is not eligible for appointment in Government service at all. Therefore the other questions raised by the petitioner are merely academic. 6. It is true that in this case, the person, who was the Registrar (Vigilance) of the High Court, when the anonymous complaint was being enquired into, was later posted as the District Judge of Ernakulam, where the petitioner happened to be working and consequently became the disciplinary authority of the petitioner, who ordered the disciplinary proceedings. But on that account, no bias can be attributed to the disciplinary authority W.P(C) No. 10485 of 2009 -: 10 :- mainly for two reasons. First is that enquiry on the basis of the anonymous complaint was not conducted by the Registrar (Vigilance) himself, but by the Dy.S.P. attached to the Vigilance Cell of the High Court of Kerala. The Registrar (Vigilance) forwarded his report to the Chief Justice only on the basis of the report of the Dy. S.P. Secondly, it is the High Court, who directed the Disciplinary Authority to initiate disciplinary proceedings against the petitioner. Therefore, the decision to initiate disciplinary proceedings was taken by the High Court and not the Disciplinary Authority. As such there is no real danger of bias, especially since he is a very senior District Judge, who is trained in taking independent and unbiased decisions under all circumstances. As held by the Supreme Court in **Lalith Kumar Modi’s case** (supra) a mere apprehension of bias or even a real likelihood of bias is not sufficient, but there must exist a real danger of bias, which is absent in this case. 7. Apart from the same this is a case where the Doctrine of Necessity as explained by the Supreme Court in **Election Commission of India & anr. V. Dr. Subramanyam Swamy & anr. (1996) 4 SCC 104** and **J. Mohapatra & Co.& anr. V. State of Orissa & anr. (1984) 4 SCC 103** , should necessarily apply. In **Mohapatra’s case** (supra), the Supreme Court held thus in paragraph 12 thereof: “There is, however, an exception to the above rule that no man shall be a judge in his own cause, namely, the doctrine of necessity. An adjudicator, who is subject to disqualification on the ground of bias or interest in the matter which he has to decide, may be required to adjudicate if there is no other person who is competent or W.P(C) No. 10485 of 2009 ## -: 11 :- authorized to adjudicate or if a quorum cannot be formed without him or if no other competent tribunal can be constituted. In such cases the principle of natural justice would have to give way to necessity for otherwise there would be no means of deciding the matter and the machinery of justice or administration would break down. Thus, in The Judges v. Attorney General for Saskatchewan, (1937) 53 TLR 464, the Judges of the Court of Appeal were held competent to decide the question whether Judges of the Court of Appeal, of the Court of King's Bench and of the District Courts of the Province of Saskatchewan were subject to taxation under the Income-tax Act, 1932, of Saskatchewan on the ground that they were bound to act ex necessitate. The doctrine of necessity applies not only to judicial matters but also to quasi-judicial and administrative matters.” In this case, as far as the petitioner is concerned there is only one Disciplinary Authority. Any other District Judge cannot act as the Disciplinary Authority. The Disciplinary Authority cannot be changed for the petitioner’s case alone. The next higher authority is the High Court, who is the appellate authority. Therefore applying the Doctrine of Necessity it has to be held that the disciplinary proceedings cannot be faulted on the ground of bias on the part of the Disciplinary Authority as contended by the petitioner. 8. The contention that no memo of charges was issued to the petitioner, although taken in the writ petition, was not seriously argued by the counsel for the petitioner, probably realising the futility of the same. The charge, which was found against the petitioner, is summarised in Ext. P1, which admittedly has been received by the petitioner. The enquiry officer issued a memo containing the very same charge to enable the petitioner to file his statement of defence and the petitioner has submitted Ext. W.P(C) No. 10485 of 2009 -: 12 :- P2 statement of defence also, which shows that the petitioner has correctly understood the charges levelled against the petitioner. Petitioner clearly knew in advance the charge against him in respect of which a detailed enquiry was conducted, in which the petitioner fully participated and at no point of time the petitioner has taken a stand that he was unable to defend himself, since no formal memo of charges was issued to him. Therefore it is futile for the petitioner now to contend that no memo of charges was issued to the petitioner, especially when the petitioner has no case that the petitioner has in any way been prejudiced in the matter on account of that fact. 9. The law relating to furnishing of copy of enquiry report to the delinquent is contained in paragraphs 30 and 31 of **B. Karunakar’s case** (supra), which reads thus: “30. Hence the incidental questions raised above may be answered as follows: (i) Since the denial of the report of the Inquiry Officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules, if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject. (ii) The relevant portion of Article 311(2) of the Constitution is as follows: “(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges." -: 13 :- W.P(C) No. 10485 of 2009 Thus the Article makes it obligatory to hold an inquiry before the employee is dismissed or removed or reduced in rank. The Article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Article 311 (2) applies only to members of the civil services of the Union or an all India service or a civil service of a State or to the holders of the civil posts under the Union or a State. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded, and when the Inquiry Officer is not the disciplinary authority the delinquent employee will have the right to receive the Inquiry Officer's report notwithstanding the nature of the punishment. (iii) Since it is the right of the employee to, have the report to defend himself effectively, and he would not know in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the, report or not, the report has to be furnished to him. (iv) In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the inquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan Khan's case (AIR 1991 SC 471) (supra) should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly. (v) The next question to be answered is what is the effect on the order of punishment when the report of the -: 14 :- W.P(C) No. 10485 of 2009 Inquiry Officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to a "unnatural expansion of natural justice" which in itself is antithetical to justice. 31. Hence, in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court! Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court., Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should nut mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short-cuts. Since it is the Courts/ Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only -: 15 :- W.P(C) No. 10485 of 2009 if the Courts/ Tribunals find that the furnishing of the report would have made a: difference to the result in the case that should set aside the order of punishment Where after following the above procedure the Courts/Tribunals sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority, management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.” In this case, admittedly, copy of the enquiry report was furnished to the petitioner along with the notice to show cause against the proposed punishment. In Ext. P7 reply to the show cause notice, the petitioner has made his representation against the enquiry report also, which have been considered by the disciplinary authority while passing Ext. P8 order of punishment. Therefore the petitioner was given an opportunity to represent against the enquiry also at the appropriate time and the petitioner has not sustained any prejudice in that respect. Even otherwise, in the peculiar facts of the case, the furnishing of the report earlier would not have made any difference in the matter of the guilt of the petitioner, reasons for which would become W.P(C) No. 10485 of 2009 -: 16 :- clear, while considering the other contentions of the petitioner. 10. I am not satisfied that the enquiry officer recommended punishment in the enquiry report. What the enquiry officer has done is to call attention to the seriousness of the misconduct committed by the petitioner while stating that such misconduct attracts penalty of dismissal. Even assuming that the same amounts to a recommendation of punishment, the same cannot be a reason to find bias on the part of the enquiry officer, by any stretch of imagination. As such I am not inclined to countenance the contention of the petitioner regarding bias of the enquiry officer. 11. I do not find any merit in the contention that failure to summon the application filed by the petitioner before the PSC or the failure to examine an officer of PSC to prove the matter of suppression is fatal to the enquiry. Misconduct in an enquiry need not be proved beyond reasonable doubt as in a criminal case. The standard of proof is not even that of preponderance of probability as in a civil case. If an ordinary prudent man would return a verdict of guilty on the basis of materials available on record, that would suffice in a domestic enquiry. That can be proved by any material which would appeal to an ordinary prudent man. Even hearsay evidence can be relied on in disciplinary enquiries. Therefore direct proof in the form of the application filed by the petitioner or deposition of an officer of the PSC itself is not mandatory for proving the guilt, if from other evidence available on record, the W.P(C) No. 10485 of 2009 -: 17 :- guilt can be inferred. Further as is evident from Ext. P5 enquiry report, in spite of the direction to the PSC to produce the application, the same could not be obtained since the same was not available after so many years. Therefore, I shall proceed to consider whether the evidence available is sufficient to enter a finding of guilty in accordance with the standard of proof required in disciplinary enquiries. 12. Certain facts are beyond dispute even by the petitioner. They are: (a) The petitioner was a Havildar in the Army. He deserted the army, for which the petitioner was court martialled by the Army Court. (b) In Court martial proceedings, the petitioner was convicted and sentenced to undergo imprisonment for three months, which punishment the petitioner had undergone. Consequent to the punishment, he was dismissed from the Army on 1-8-1987 prior to his submission of application before the PSC in 1987. (c) In the discharge certificate issued to the petitioner from the army, it has been endorsed that the petitioner is UNFIT for civil employment. In respect thereof the petitioner himself obtained a clarification from the Army that the same is not a W.P(C) No. 10485 of 2009 -: 18 :- mistake and that as per paragraph 168 (c) of the Regulations for the Army, 1987, a person dismissed from the Army is NOT ELIGIBLE for further employment in Government service. Therefore there cannot be any doubt that, had the petitioner disclosed the punishment in his application before the PSC, he would certainly have been disqualified from selection, especially since the law says that he is ineligible for further employment in Government service, on account of the punishment imposed on him by the Army. The form prescribed by the PSC for applying for employment through PSC, which I have obtained through the Standing Counsel for the PSC, contains the following columns: |18|(®)<br>(Ìß)|ÈßBZ §çMÞZ çµdw ·ÕæpaßæaçÏÞ<br>¯æÄCßÜᢠآØíÅÞÈ ·ÕæpaßæaçÏÞ<br>¥Vi ØVAÞV ØíÅÞÉÈJßæaçÏÞ ÄçgÖ<br>ØbÏ¢ Íøà ØíÅÞÉÈJßæaçÏÞ ©¿ÎÏßÜáU<br>¯æÄCßÜᢠµOÈßÏáæ¿çÏÞ çµÞVMçù×ÈßæaçÏÞ<br>µàÝßWØíÅßøÎÞçÏÞ ÄÞWAÞÜßµçÎÞ<br>¦Ï¥¿ßØíÅÞÈJßW çØÕÈ¢<br>¥Èá×íoßAáKáçIÞ<br>(¥æÄ ®çKÞ ¥Üï®çKÞ ©JøæÎÝáÄáµ)<br> ¥æÄ ®KÞÃ' ©JøæÎCßW ÕßÖÆ ÕßÕøBZ<br>ÈWµáµ|(Ìß)|| |---|---|---|---|---| |19|(®)|ÉÌïßµí ØVÕàØßW ÈßÏÎÈJßÈá çÕIß<br>¥çÉfßAáKÄßW ÈßKí µNà×X<br>ÈßBæ{ ÈßçøÞÇߺîßGáçIÞ (ÁàÌÞV æºÏñßGáçIÞ)|(®)|| -: 19 :- W.P(C) No. 10485 of 2009 |18|(®)<br>(Ìß) <br>(Øß)|ÈßBZ §çMÞZ çµdw ·ÕæpaßæaçÏÞ<br>¯æÄCßÜᢠآØíÅÞÈ ·ÕæpaßæaçÏÞ<br>¥Vi ØVAÞV ØíÅÞÉÈJßæaçÏÞ ÄçgÖ<br>ØbÏ¢ Íøà ØíÅÞÉÈJßæaçÏÞ ©¿ÎÏßÜáU<br>¯æÄCßÜᢠµOÈßÏáæ¿çÏÞ çµÞVMçù×ÈßæaçÏÞ<br>µàÝßWØíÅßøÎÞçÏÞ ÄÞWAÞÜßµçÎÞ<br>¦Ï¥¿ßØíÅÞÈJßW çØÕÈ¢<br>¥Èá×íoßAáKáçIÞ<br>(¥æÄ ®çKÞ ¥Üï®çKÞ ©JøæÎÝáÄáµ)<br> çµdw ·ÕæpaßæaçÏÞ ¯æÄCßÜá¢Ø¢ØíÅÞÈ<br>·ÕæpaßæaçÏÞ ¥Vi ØVAÞV<br>ØíÅÞÉÈJßæaçÏÞ ÄçgÖ ØbÏ¢ ÍøÃ<br>ØíÅÞÉÈJßæaçÏÞ ·Õæpaí ©¿ÎÏßÜáU<br>ÎçxæÄCßÜá¢<br>µOÈßÏáç¿çÏÞçµÞVMçù×æaæÏÞ ØVÕàØßW<br>ÈßKí ÈßBæ{ ÁßØíÎßØí æºÏñßGáçIÞ?<br> ¯æÄCßÜᢠdµßÎßÈW µáxJßÈ"ÈßBæ{ çµÞ¿Äß<br>Ößµí×ߺîßGáçIÞ<br>(çÎWÉùE çºÞÆcBZæAÄßæø ©Ií ®çKÞ<br>§Üï ®çKÞ ©Jø¢ ®ÝáÄáµ)<br>©Ií ®KÞÃ' ©JøæÎCßW ÕßÖÆ ÕßÕøB{â¢<br>®ÝáÄáµ.|(Ìß)<br>(Øß)|| |---|---|---|---|---| I can take judicial notice of the above fact. Therefore the petitioner was expected to fill up those columns in his application. If the petitioner had disclosed the fact of his punishment by the Army Court and dismissal from the Army, then there cannot be two views about the fact that he would have been disqualified for selection. Therefore since the petitioner was not disqualified, the only conclusion possible in the disciplinary enquiry, on the basis of the materials available, was that the petitioner had in fact suppressed those facts in the application. Apart from that the contention of the petitioner in the writ petition is not that he had disclosed the conviction, punishment and the W.P(C) No. 10485 of 2009 -: 20 :- reasons for discharge from the Army in the application. His contention in paragraph 2 of the writ petition is as follows: “However I came to know of the dismissal from the Army in the year 1989. In the meanwhile the petitioner had come back to his native place in the year 1987 and responded to a notification issued by the Public Service Commission. Thus the reasons for discharge from the Army could not be informed in the application since those details were unavailable at the time of application.” There is an inherent contradiction here. If the petitioner knew about his discharge from the Army only in 1989, which itself cannot be accepted as correct, in 1987 he should have submitted his application to the PSC only through his employer, viz. the Army, which he has no case he had done. Further if as per his belief he was not yet discharged from the Army, he should have answered column 18(a) of the Public Service Commission application in the affirmative, which if he had one the Public Service Commission would have required him to submit his application through his employer. Having undergone imprisonment prior to his submission of application before the PSC, he cannot feign ignorance about the imprisonment also. The petitioner was trying to erect a smoke screen to the effect that the allegation was that he had not stated the reasons for discharge from the army in the application, although he knew very well that the allegation was that he did not disclose the fact of conviction and imprisonment by the Army Court in the application. Thus the petitioner has not approached this court with clean hands as well. In fact W.P(C) No. 10485 of 2009 -: 21 :- neither in Ext. P2 statement of defence in the enquiry, nor in the writ petition has he a case that he had in fact disclosed the fact of his conviction and sentence by the Army Court, in the application filed by him before the PSC. What he submits is that he knew about the disqualification for civil employment only on 7-3-1989, when the entry was made in the service book of the petitioner with the Army and therefore he could not disclose the same in the application before the PSC in 1987. In paragraphs 5 and 8 of Ext. P2 explanation, he has stated thus: “5. That there was no mandate in the application form requiring me to declare my imprisonment under the Army Act. The charge is made without perusing my application. **==> picture [262 x 19] intentionally omitted <==** 8. I was not called upon to disclose about the imprisonment suffered or imposed in the Court martial proceeding either at the time of application or anytime thereafter.” Therefore his only case is that he was not required to disclose the same in the application form, which is clearly disproved by clauses 18 and 19 of the PSC application form extracted above. Moreover in the proforma to be filled up by the petitioner at the time of police verification also, the petitioner was obliged to disclose the fact of imprisonment by a court of law. Going by the standard of proof required in a disciplinary enquiry, the above facts are more than sufficient to enter a verdict of guilty by the enquiry officer and the Disciplinary Authority, which only has been done in this case. In such circumstances I do not find any merit in W.P(C) No. 10485 of 2009 -: 22 :- the contention of the petitioner that the findings of the enquiry officer and the disciplinary authority are in anyway perverse. These are the reasons, which prompted me to state in paragraph 9 above that the non-furnishing of the report would not have made any difference to the validity of the disciplinary proceedings, in the facts and circumstances of the case. 13. The last contention of the petitioner is that the appellate authority was the person who recorded the statement, on the basis of which the disciplinary action was initiated. The appellate authority is the High Court. The decision is that of the High Court and not of the Registrar (Subordinate Judiciary), who actually signed the appellate order. Even otherwise he only received the anonymous letter, on the basis of which, action was initiated against the petitioner, by post. That does not amount to his recording the said statement. There is also no record of the petitioner having been questioned by the Registrar (Subordinate Judiciary) as alleged by the petitioner. The petitioner’s statement was recorded by the Dy.S.P. In such circumstances there is no merit in that contention also. 14. I have gone through all the decisions cited by the counsel for the petitioner. Since my above findings are in accordance with the law declared by the Supreme Court on the subject, I am not discussing the decisions relied upon by the learned counsel for the petitioner separately. Of course in **T.S. Vasudevan Nair’s case** (supra) the Supreme Court has held that the appellant therein should not have been denied employment on the sole ground that he had not W.P(C) No. 10485 of 2009 -: 23 :- disclosed that during emergency he had been convicted under the Defence of India Rules for having shouted slogans on one occasion. The judgment reads thus: ## “Special leave granted. We have heard learned counsel for the parties. In the special facts and circumstances of this case we feel that the appellant should not have been denied the employment on the sole ground thai be bad not disclosed that during emergency he had been convicted under the Defence of India Rules for having shouted slogans on one occasion. We, therefore, set aside the judgment of the High Court and also the order dated August 1, 1983 cancelling the offer of appointment. The respondents shall issue the order of appointment to the appellant within three months appointing him as a Lower Division Clerk, if be is cot otherwise disqualified, with effect from the date on which he assumes duty. It is open to the respondents to employ the appellant at any place of their choice. The appeal is disposed of accordingly. The said judgment does not lay down any general law for universal application that in all cases where conviction in criminal case is suppressed by the employee while submitting application for employment, employment cannot be cancelled, which is clear from the words “in the special circumstances of this case”, occurring therein, especially in the background of the emergency declared by the Government, which has been decried by the majority of the people in this country. It is abundantly clear that the decision was rendered in exercise of the special powers of the Supreme Court under Article 142 of the Constitution of India to do complete justice to the party and was not intended to lay down a general law on the subject, for universal application all circumstances. W.P(C) No. 10485 of 2009 -: 24 :- 15. To crown it all, a person who has been convicted by the Army Court and who has been statutorily declared to be UNFIT for civil employment under the Government on account of the same, as per the Regulations of the Army, is not entitled to invoke the discretionary jurisdiction under Article 226 of the Constitution of India, for enabling him to continue in service under the Government on the grounds raised by him now, insofar as even irrespective of whether the petitioner has suppressed the conviction or not in the application before the PSC, the petitioner cannot be continued in service since it has now been disclosed that he is unfit for civil employment in Government service, by operation of law viz. the Army Regulations, which is binding on all authorities in India. 16. In the facts of this case, it is pertinent to refer to the decision of the Supreme Court in **Viswanatha Pillai’s case** (supra) also, in paragraph 15 of which it is held thus: “15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste Community, then the very basis of his appointment was taken away. His appointment was no appointment in the eyes of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under the Art. 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Art.311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of false caste certificate has become final. The position, therefore, is that -: 25 :- W.P(C) No. 10485 of 2009 the appellant has usurped the post which should have gone to a member of the Scheduled Caste. In view of the finding recorded by the Scrutiny Committee and upheld upto this Court he has disqualified himself to hold the post. Appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Art. 311 of the Constitution of India. As appellant had obtained the appointment by playing a fraud he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Art. 311 of the Constitution of India or the rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit such an appointment is no appointment in law, in service and in such a situation Art. 311 of the Constitution is not attracted at all.” The fact situation in this case attracts application of the rate of that decision. For that reason also the petitioner should be denied jurisdiction by this court. For all the above reasons, there is no merit in this writ petition and accordingly, the same is dismissed. Sd/- S. Siri Jagan, Judge. Tds/