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R. Srinivasan Vs. Union of India (Uoi), Represented by Its Secretary to Government of India, Ministry of Finance Department of Revenue and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai High Court
Decided On
Reported in(1982)1MLJ381
AppellantR. Srinivasan
RespondentUnion of India (Uoi), Represented by Its Secretary to Government of India, Ministry of Finance Depar
Cases ReferredNatarajan v. Divisional Superintendent
Excerpt:
.....should be imposed on him. 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 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..........rent from the occupants. in cross-examination p.w. 1, stated '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 be 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. 1.7. 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.....
Judgment:

P. Venugopal, J.

1. The appellant while working as Income-tax Officer (Estate Duty) at Madurai, stayed in Sri Ranga Lodge, an annexe to the New Coviege House, Madurai, from 26th July, 1973. He paid the rent till 3]|stf JJjuly, 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 a 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 bona fide reason, 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.

2. 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 matter 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 provisions 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 its 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.

3. 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 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 for the alleged demand, the finding of the enquiry officer is vitiated for want of evidence, and the order of dismissal should therefore, be quashed.

4. 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.

5. In Edwards (Inspector of Taxes) v. Bairstow 1956 A.C. 14, Lord Radcliffe 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 fade bad in law appears on the face of the determination.. it may be that the facts found are such that no 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 contradicts 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.

6. The principle laid down in this decision was followed by the Supreme Court in P.T. Services v. State Industrial Court : (1962)IILLJ360SC , and it has been pointed out that in a writ of 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 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, stated '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 be 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. 1.

7. 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. 5,415 (Five thousand four hundred and fifteen only) towards the rent for your stay in our Lodge. On enquiry, we understand that our accountant Gopala-krishnan 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.

Your's 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 be 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 no provocation for the Hotel Management to write a letter like Exhibit D-1 cannot, therefore, be accepted.

8. With regard to the doubts thrown on the genuineness of Exhibit D-1, P.W. 2 has stated 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 genuineness 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 respondents' 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 year1 before the commencement of the enquiry against the appellant. 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 that 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 no 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. 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-1 was issued to oblige or help the appellant. The finding that Exhibit D-1 came to be issued to 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 rent 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.

9. In the decision reported in M. Mayandi v. The Director, Tamil Nadu State Transport Department : (1981)IILLJ146SC , 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 of 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 We, 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.

11. In the decision reported in Messrs. Bijili Cotton Mills (P.) Ltd. v. The Presiding Officer, Industrial Tribunal, II Allahabad and Ors. : (1972)IILLJ320SC , 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 22b of the Constitution, the error being gross and palpable and manifest on the lace 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.

11. Relying on a decision of the Gujarat High Court reported in Mahanabhai Dungarbhat Parma v. Y.B. Kala and Anr. (1979) 55 F.J.R. 140 : 20 G.I.R. 497 : (1980) 2 Lab. I.C. 89 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 incident in respect of which the charge-sheet was framed. It was held that if the charge or accusation was levelled very soon after the lapse, the employee could have rendered an appropriate explanation, and not having done so for more than 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 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. Rama-mmi v. The Chief Engineer Distribution Tamil Nadu Electricity Board and Anr.1). In the instant case, the rent was paid in full and the receipt obtained on 1st December, 1976. 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 27th 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.

12. What is conduct unbecoming of a Government servant has not been denned 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 not 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 Divisionl 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.

13. 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 1976, he settled the rent bill in full. Soon after vacating the Lodge the appellant had taken steps to pay the bill.

14. The appellant has received letters of appreciation and encomiums have been showered on him for his ability for detailed investigation and successfully prosecuting an asses-see 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 superannuation 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.


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