[Order of the Court was made by NOOTY RAMA MOHANARAO , J.] The need to remove the undesirable, only in terms of principles of justice, is more profound now than ever before. Institutions concerned with justice delivery, are required to function beyond any element of suspicion as the very creditability of Courts would depend squarely upon the sense of impartiality, coupled with knowledge and above all, the integrity and conduct exhibited by the Presiding Officer in and out of Courts.
2. In the instant case, the writ petitioner has mounted a challenge to the validity of the orders passed in G.O.(D)No.275 Home (Courts-I) Department, dated 24.04.2015 imposing on her punishment of removal from service for the proven misconduct, duly agreeing with the recommendations made by the High Court. The writ petitioner, at the relevant point of time, was working as a District Munsif at Mannargudi, Thiruvarur District. When serious allegations of corruption and misconduct surfaced against the writ petitioner, the High Court by its order dated 29.03.2012, placed her under suspension pending enquiry there into. Pending the disciplinary proceedings, the allegations surfaced against the writ petitioner were that she was asking moneys to be deposited in a particular bank account maintained at a different place viz., Vellore as illegal gratification and those moneys are withdrawn subsequently by her husband. After the preliminary enquiry was conducted, a charge sheet was drawn on 13.08.2013. The charge reads as under:
STATEMENT OF CHARGES FRAMED Statement of allegations, namely, corrupt practices in support of the Charges framed against Tmt.K.Rathinam Murugesan, then District Munsif, Mannargudi (now under suspension).
CHARGE-I:
That you, Tmt.K.Rathinam Murugesan, while functioning as District Munsif, Mannargudi has indulged in corrupt practices and delivered Judgments and orders on receipt of bribe. The modus operandi adopted by you was that the bribe amounts were deposited through pay-in slips for cash transfers filed by Thiru.M.Ramanathan, Advocate Clerk of Thiru.S.Udayakumar, Advocate and Thiru.S.Ramakrishnan, Advocate, Mannargudi in State Bank of India, Mannargudi Branch in the name of Tmt.Priyalatha having savings A/c.No.1054895383 in State Bank of Inida, Siruthozhil Branch, Vellore and the same were withdrawn by your husband Thiru.G.P.Murugesan, Advocate, Vellor using the ATM card stands in the name of Priyalatha who is the wife of Thiru.Senthil Kumar who is friend of your husband. The said Thiru.Senthil Kumar has no business interests whatsoever in Mannargudi and you have also not accounted property for 24 money transactions totalling Rs.3,85,000/- during the period from 15.06.2010 to 14.12.2010. The aforesaid acts committed by you will amount to the acts of lack of absolute integrity and devotion to duty and amounts to corrupt practices and the act indulged by you are a conduct unbecoming of a Judicial Officer. Therefore, your conduct is unbecoming a of a public servant and thereby committed misconduct under Rule 20(3)(i) of the Tamil Nadu Government Servant Conduct Rules,1973.
3. The writ petitioner has submitted her response dated 05.09.2013 denying the allegations. Hence, by order dated 26.11.2013, the learned District Judge, Thiruvarur has been appointed as an Enquiry Officer. After completing the enquiry, the Enquiry Officer submitted his report on 4.04.2014 holding that charge, was held established against the delinquent. The report of the Enquiry officer was placed before the Administrative Committee of the High Court, which upon consideration, has resolved to accept the findings of the Enquiry Officer and it has also resolved to issue a show cause notice to the delinquent Officer inviting her comments on the findings recorded against her by the Enquiry Officer. Accordingly, a show cause notice is drawn making available the Enquiry Officer's report to the writ petitioner and she filed her detailed response on 18.07.2014. The said representation dated 18.07.2014 was again considered by the Administrative Committee of the High Court, which has resolved to reject the same. It was also resolved to issue a show cause notice to the delinquent as to why the punishment of dismissal from service should not be imposed on her and hence, the show cause notice dated 26.08.2014 was drawn inviting her objections for imposing the proposed punishment. She filed her response on 08.09.2014 and after affording an opportunity of personal hearing to the writ petitioner on 06.01.2015, the Administrative Committee of the High Court has resolved to impose upon her the punishment of removal from service. Accordingly, the matter was placed before the Full Court of the High Court for its consideration and the Full Court, at its meeting held on 09.02.2015, resolved to approve the minutes of the Administrative Committee dated 06.01.2015, proposing the imposition of punishment of removal from service against the writ petitioner. On 09.02.2015, the entire material including the resolution of the Full Court, proposing to impose punishment of removal from service on the writ petitioner, was forwarded to the Government and the Government, accepting the said recommendations, passed orders through the impugned G.O (D) No.275, Home (Courts-I) Department dated 24.04.2015.
4. Heard the learned Senior Counsel Mr.A.Thiyagarajan, appearing on behalf of the learned counsel for the writ petitioner.
5. The learned Senior Counsel for the writ petitioner while agreeing that if a judicial officer is rendering service actuated by corrupt motives has to be dealt with with a firm hand, but however, would submit that any such charge laid against a judicial Officer must be proven to the hilt or otherwise, the officers become victims of circumstances. Elaborating this contention, the learned Senior Counsel would contend that there should be a specific charge laid against the Judicial Officer as non specific allegations are incapable of being effectively neutralised by the delinquent. If a specific instance where corrupt practice has been followed or adopted is alleged, then it becomes all the more easy for the delinquent to deal with any such specific allegation. Far from laying a clear and precise charge against the writ petitioner, in the instance case, a very vague allegation has been made that she was indulging in corrupt practice.
6. The learned Senior Counsel therefore would urge that the entire proceedings against the writ petitioner shall be treated to have been vitiated. Further, it was contended that there must be acceptable evidence for the purpose of proving the charge laid against the writ petitioner. In the instance case, four persons viz., P.Ws.1 to 4 have been examined against the petitioner. P.W.1 is the President of the Local Bar Association, whereas P.W.4 is stated to be the landlord of one Murugesan at Vellore. Both P.Ws.1 and 4 have not stated anything specifically against the writ petitioner, much less about any activity of corruption or corrupt practices indulged in by her. P.W.2 is an advocate's clerk, except admitting his signature on some pay-in-slips, shown to him during the preliminary enquiry, has not spoken anything about the main limb of allegation viz., the corrupt practices said to have been indulged in by the writ petitioner. P.W.3, Mr.Murugesan, from Vellore has been examined. He neither spoke of any element of corruption attributable on the writ petitioner. Therefore, the contention of the learned Senior Counsel that the entire evidence, when taken into account and consideration, does not offer any valid ground for concluding that the writ petitioner has indulged in corrupt practices. The learned Senior Counsel would submit that far from holding the charge as held established, the Enquiry Officer if only has applied his mind properly to the facts brought on record, he would have realised that there is any amount of contradiction in the material brought on record.
7. The learned Senior Counsel would contend that the following specific discrepancies found on record will completely discredit the findings recorded by the Enquiry Officer. The discrepancies relate to:
i). The bank account number mentioned in the charge sheet is not tallying with that of Ex.P.4, the account opening form of the Savings Bank Account opening form of the beneficiary Priyalatha.
ii). Ex.P.1, contains the number 01190012459, in the computer generated pass book, whereas, the allegations relate to the deposits said to have been made into all account bearing No.10545895383. Therefore, the difference between the two account numbers is a crucial and substantial discrepancy, which has been completely omitted from consideration.
Iii). The number "10545895383" has been added in Ex.P1 in ink. No one has been examined from the Bank/branch concerned as to who authored/written this number on Ex.P1. In the computer generated statement, if there are any manual additions and corrections, they are required to be authenticated. There was no authentication found on Ex.P1 and hence, the discrepancy relating to the account number continues to remain explained.
iv). Modus operandi alleged against the writ petitioner involved withdrawal of money by the husband of the writ petitioner by using an ATM card. Unless the ATM Card along with its PIN number is made available, by merely possessing an ATM card, no person can withdraw money from the bank account.
v). P.W.3, who is stated to be the husband of Priyalatha, into whose account moneys were deposited and from which account moneys were allegedly withdrawn by the husband of the writ petitioner at Vellore, has specifically stated that he has not given the PIN Number of the ATM Card and hence, the very basis behind the allegation lacks tenability.
8. True, it is that any amount of suspicion is no substitute for proof. But however in a disciplinary proceeding, the standard of proof clearly adopted is not one of proof beyond all reasonable doubt, but one of preponderance of probability. In criminal jurisprudence, the principle of proof beyond all reasonable doubt is strictly adopted and followed, for it is appropriate not to convict any person and deprive liberty of such an individual, unless the offence is proved to the hilt. The reason being the society may not suffer much even if 100 suspected individuals of various offences are let off, but the society would suffer a great deal, if one innocent individual is sentenced and punished, depriving his liberty.
9. By the very nature of occupation of venerable office such as that of a judge, it may not be always easy to secure direct evidence against any wrong doings of such officer. It is all the more so, if the allegations touch upon the integrity of the officer concerned, is an adversarial type of litigation. There are two sides to a litigation. It is only one of the sides, who can possibly indulge in corrupt practices and it therefore, may not be within the knowledge of the other side. The suspicion about the integrity of the officer would surface when the judgment is delivered and such a verdict goes against the strong and popular opinion and contrary to the merits of the matter. It is that kind of judgments which will raise a suspicion about the integrity of the Officer. Therefore, seldom there would be available direct evidence against a Presiding Officer of a Court, who indulges in corrupt practice.
10. What has been held established by examining P.Ws.2 and 3,let us note. P.W.2 was working as an Advocate Clerk at Mannargudi, where the writ petitioner was working as a Judicial Officer. It is P.W.2, who prepared all those 24 pay-in-slips, which are used for making huge deposits in the local branch of State Bank of India at Mannargudi. Huge sums of money were deposited into a saving bank account bearing account No.10545895383 maintained with the State Bank of India at it's Vellore Branch. The account belongs to one Priyalatha. P.W.2 does not know, who this Priyalatha is. He does not have any relatives residing at far off Vellore either. Priyalatha's husband, Senthilkumar, P.W.3 was working as an Air Conditioner Mechanic at Vellore. This Senthilkumar, P.W.3, does not have any business relationship or any transactions to be carried out at Mannargudi where the writ petitioner was working. P.W.3, Senthilkumar and the husband of the writ petitioner Mr.Murugesan are known to each other for quite some time past. At request of Mr.Murugesan P.W.3, Senthilkumar has given ATM card of his wife Priyalatha's savings bank account maintained with SBI. Ex.P.1 pass book entries clearly disclose that as soon as huge sums of money were deposited at Mannargudi and or transferred to Vellore, equal amounts were withdrawn from the bank account of Priyalatha at Vellore. Such withdrawals were made using an ATM card but not by using a cheque or withdrawal form. P.W.3, Senthilkumar, though was operating Priyalatha's account earlier, lately, he was not operating the same.
11. When these pieces of information are processed, the broad picture that emerges is that these money were deposited with the State Bank of India, Mannargudi Branch to the credit of an account of Priyalatha at Vellore. Such moneys were deposited using the pay-in-slips prepared and signed by an advocate clerk P.W.2, there is no relationship between P.W.2 and Priyalatha or her husband P.W.3 Senthilkumar. But however, such moneys transferred to the account of Priyalatha at Vellore, were withdrawn not by P.W.3, but another person has withdrawn such moneys using ATM card. P.W.3 has parted with the ATM card of the account and it is Murugesan, the husband of the writ petitioner, who kept the said ATM card with him.
12. Entries in Ex.P.1 pass book clearly bring out that the withdrawal has been made from the Savings Bank account of Priyalatha at vellore using an ATM card. Therefore, the picture that emerges was that an advocate clerk who would have clearly some work or the other to do with the Court, where the writ petitioner is working, has been used for purposes of depositing huge sums of money into an unknown account maintained at a place far off Vellore. The needle of suspicion was rightly hanging over the head of the writ petitioner, because she was working as a judicial officer at Mannargudi, where P.W.2 was working as an advocate clerk and it is at Mannargudi, deposit of huge monies have been made by way of transfer to an account at Vellore, where the husband of the writ petitioner and the husband of Priyalatha are stationed. P.W.2 had no relationship with Priylalatha. The husband of Priyalatha does not have any business transactions at Mannargudi. In this context, the following statement of fact made by P.W.2, when he was examined by the Enquiry Officer, acquires significance. The following is the statement, which he made: [since I did not have the advantage of reading and writing Tamil, I prefer to go by the translation of this deposition, which is placed at page No.29A of the additional typed set of papers made available by the learned counsel for the petitioner. The translation of the above statement, found at page 29-B reads as under:] I don't know who is Priyalatha mentioned in the above cash transfer forms. I don't know on what basis I have done the cash transfer in the account of Priyalatha through cash transfer forms. I don't know for what purpose I put money as per above forms. I don't want to tell more about deposit of cash as per above cash transfer forms. This witness has been extensively cross examined. But nothing substantial has been extracted from him as to the reasons for cash transfer to the account of Priyalatha, through various pay-in-slips signed by him has been extracted. The only statement that this witness has made in the cross examination, upon which, much reliance has been placed by the learned Senior Counsel was: [The translation at page 29-D reads as under]:
I don't know who is Priyalatha. I don't know the bank account number of Priyalatha. I never went to bank directly to deposit cash.
13. Learned Senior counsel would contend that if P.W.2 has not directly gone to the Bank, the entire theory set up against the writ petitioner must necessarily fall to the ground. We are not re-appreciating the evidence brought on record as a criminal appellate court would have done it. We have only quoted the above passage from the deposition of P.W.2 to discredit the defence offered by the writ petitioner. If by mistake or by an accident, if P.W.2 had transferred a small amount running to few hundred rupees to an unknown account at vellore, once, perhaps, not much of a serious consideration would have been spared by us. But consistently on 24 detected occasions huge sums of money, stood deposited by way of transfer in State Bank of India, Mannargudi Branch, credited to the account of Priyalatha maintained at Vellore and as per Ex.P.1, all such moneys stood withdrawn exactly to the same extent of such deposit made using ATM card but not even once by way of a withdrawal form. Therefore, the inference that is available clearly indicates the culpability of the writ petitioner. The access or contact point, if not a control, of a judicial officer over that of an advocate''s clerks, cannot be discounted completely.
14. It is also now appropriate to deal with the discrepancy pointed out by the learned Senior Counsel with regard to the account number. Ex.P1 is a computer generated pass book of the saving bank account maintained by Priyalatha with Siruthozhil Branch of State Bank of India, Vellore. Both page Nos.1 and 2 of Ex.P.1 did not contain number 01190012459 but significantly at page No.3, this is what has been found quality control: [control: 1501984 7274 10545895383, 20/12/2011]. It is more than clear that for certain operational reasons, the original account bearing No.01190012459 has been renumbered as 10545895383. We, hence, have no hesitation to hold that there is no discrepancy, as submitted on behalf of the writ petitioner with regard to the account number. Ex.P.4, is the account opening form. The account appears to have been opened on 06.04.2005. At that stage, it was assigned account No.01190912459. Therefore, Ex.P.4, the account opening form dated 06.04.2005 did contain the aforementioned number, but nevertheless Ex.P5, the statement of account generated by the State Bank of India has clearly mentioned the account number of Priyalatha as 10545895383. This Ex.P.5 statement of account is for the period from 01.01.2009 to 20.12.2011. This Ex.P.5, which has witnessed huge credits made into this account by way of inter branch transfer from SBI Mannargudi Branch and it also shows corresponding cash withdrawal using an ATM Card.
15. P.W.3 has been examined because, he was the one, who is operating for some time in the past, the account of his wife Priyalatha. It is P.W.3, who spoke of his acquaintance with the husband of the writ petitioner. This P.W.3, spoke of parting with the ATM Card of his wife's Bank account and the said ATM card was lying in possession of the husband of the writ petitioner. While it is true that without knowing the pin number, an ATM card may not be very effectivelyused, however, when Exs.P.1 and P.5 unmistakeably disclosed cash withdrawal using the ATM card, it is clearly inferable that PIN number is very much within the knowledge of the person, who is making the withdrawal using the card, otherwise the ATM card would have been blocked for possible misuse or abuse by the system itself.
16. Learned Senior Counsel made an attempt to discredit the proceedings against the writ petitioner for two additional reasons:
i) that the enquiry officer has effectively denied the right to lead evidence on behalf of the defence on 25th March 2014.
ii) The learned Senior counsel pointed out that if a defence witness is prevented from being examined on 25th March 2014, all because of the absence of the Enquiry Officer on that day, it would amount to denial of a fair and reasonable opportunity to the writ petitioner to establish her claim/defence effectively.
17. We have, with a view to satisfy ourselves as to whether any such error has been committed by the Enquiry officer, sent word for the original file and perused the same. We found that on 10.03.2014, while adjourning the enquiry proceedings to 25th March 2014 for defence evidence, the Enquiry Officer signed the minutes on 10.03.2014 and so did the writ petitioner/ delinquent officer. It appears that on 25th March 2014, the following endorsement has been made: "there is no witness to examine on the side of defence. B.Senthurpandian, learned counsel for the delinquent made such an endorsement and signed on 25.03.2014. After the learned counsel Senthurpandian signed the above endorsement, the writ petitioner has also signed the proceedings and put the date 25.03.2014 thereon. It is in the above context, the matter was posted for arguments to 26th March 2014. Undoubtedly, the endorsement posting the matter for arguments to 26th March 2014, appears to have been made by the Presenting Officer. This is an irregular procedure undoubtedly. The presenting Officer has no authority to conduct the proceedings himself, which are required to be conducted by the Enquiry Officer. Obviously, the Presenting Officer and the delinquent Officer both being Judicial Officers and both being familiar with the practice of posting of cases, in the absence of Presiding Officer by the Court staff, he has taken the liberty of posting the matter for arguments to the next date viz., 26th March 2014. We hope that the High Court will instruct the Presiding officers hence, forth not to repeat any such error. But, however, the file reveals that on 26th March 2014, arguments were heard by the Enquiry Officer himself. Therefore, the posting of enquiry proceedings to 26th March 2014 for arguments by the Presenting Officer has not vitiated the proceedings in any manner. Since this writ petitioner herself stated that there is no defence witness to be examined and having also made a written endorsement to that effect, signed by her counsel as well, we are of the opinion that the writ petitioner was not at all denied a fair and reasonable opportunity of leading her defence evidence. All due to the absence of Enquiry Officer on 25th March 2014, she was denied an opportunity to lead defence evidence is a contention without any subsistence or merit. We, therefore, hold that the writ petitioner has not been denied any fair or reasonable opportunity to establish her defence by the Enquiry Officer. It is she who decided not to examine anyone on her behalf, on the other hand.
18. The learned Senior Counsel has also drawn our attention to the resolution said to have been passed by the Administrative Committee as soon as the Enquiry Officer submitted his report on 04.04.2014. It is true that the Administrative Committee has resolved to accept the findings of the Enquiry Officer. At that stage, the Administrative Committee was only concerned with the aspect of determining whether the findings of the Enquiry Officer, are required to be accepted or disagreed. If the Administrative Committee come to a conclusion that the findings recorded by the Enquiry Officer, are required to be disagreed, perhaps, they will have to set out the reasons why they propose to disagree with the findings of the Enquiry Officer and then provide an opportunity to the delinquent/writ petitioner to show cause as to why the findings of the Enquiry Officer should not be disagreed. Such a situation would arise if the enquiry officers findings are in favour of the delinquent. But in the instant case, the findings recorded by the Enquiry Officer are against the writ petitioner. The enquiry officer found the charge laid against the writ petitioner as held established. Therefore, at this stage, Administrative committee, was only concerned as to whether the Enquiry Officer's report containing the findings are liable to be accepted or not or it deserves to be disagreed. Therefore, at this stage, the Administrative Committee has not firmed up its opinion one way or the other. The scrutiny of the Enquiry Officer's report, at this stage by the Administrative Committee is only for the purpose of enabling the next follow up action to be taken in the matter and nothing more.
19. The writ petitioner did submit her explanation to the findings of the Enquiry Officer as on 18th July 2014. She has not raised any objection that the Administrative Committee has prejudged her case. Therefore, the contention canvassed in this regard now is a clear after thought. In fact, the writ petitioner had also been accorded one more opportunity to show cause against the proposed punishment. Thus viewed from any perspective, the writ petitioner has been accorded full and faithful opportunities all through, for the purpose of establishing her defence.
20. The last statement of the learned Senior Counsel is that in cases even in disciplinary proceedings where serious consequence involving imposition of very severe punishment are likely to be implicated, the charge must be proved to the hilt, in fact, is based upon certain observations found in the judgment of the Honourable Supreme Court of India rendered in Union of India and others vs. Gyan Chand Chattar. [(2009) 12 SCC 78]. That was a case which arose from the judgment of Division Bench of the Gujarat High Court. The Division Bench of the Gujarat High Court, while confirming the view of the learned Single Judge, has also allowed the cross objections filed by the respondent employee and set aside the order giving liberty to the disciplinary authority to pass a fresh order for imposing minor punishment on two of the charges proved against the delinquent employee in that case. In paragraph No.21, the following is found:
21. Such a serious charge of corruption required to be proved to the hilt as it brings civil and criminal consequences upon the employee concerned. He would be liable to be prosecuted and would also be liable to suffer severest penalty awardable in such cases. Therefore, such a grave charge of quasi-criminal nature was required to be proved beyond any shadow of doubt and to the hilt. It cannot be proved on mere probabilities. But, however, it is worthy to notice that up to paragraph No.23 of the judgment, the Supreme Court was dealing with the backdrop of the case arising from the proceedings out of the Gujarat High Court. From paragraph No.25 onwards, the consideration of the matter by the Supreme Court has been set out. This will be clear from the very opening sentence of paragraph No.25, which reads as under:
....25. We have considered the aforesaid findings recorded by the Courts below in the light of the evidence on record.... Therefore, what has been noted in paragraph No.21 of the aforesaid judgment, is not forming part of ratio decidendi of the judgment of the Supreme Court. But it merely reflected the opinion of the Gujarat High Court. The Supreme Court has furnished the answer in respect thereof in the following words in paragraph No.33:
33. In a case where the charge-sheet is accompanied with the statement of facts and the allegations may not be specific in charge-sheet but may be crystal clear from the statement of charges, in such a situation as both constitute the same document, it may not be held that as the charge was not specific, definite and clear, the enquiry stood vitiated. (Vide State of A.P. V. S.Sree Rama Rao). Thus, where a delinquent is served a charge-sheet without giving specific and definite charge and no statement of allegation is served along with the charge-sheet, the enquiry stands vitiated as having been conducted in violation of the principles of natural justice.
We are clearly of the view that in disciplinary proceedings, it is not proof to the hilt i.e., proof beyond doubt, which is required to be established, but it is the preponderance of probability, which is the standard to be applied.
24. In the instant case, the probability unmistakeably led the charge to the writ petitioner. We, therefore, find ourselves in complete agreement with the resolution of the Full Court of the High Court and as accepted by the State Government. We find that there is no error in the entire exercise, warranting interference.
25. The last statement made by the learned Senior Counsel is with regard to the severity of the punishment imposed on the writ petitioner. The learned Senior Counsel would suggest that since the writ petitioner had already competed more than 10 years of service, punishment of compulsory retirement should have been imposed rather than the punishment of removal from service. In the face of our agreement that the charge was held established against the writ petitioner, we do not find any support for us to feel that the punishment imposed is in any manner disproportionate to the seriousness of the misconduct held established. We regret our inability to make any situation of the punishment of compulsory retirement to that of termination from service. No costs. Consequently, connected miscellaneous petitions are closed.