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PETITIONER: N. RAJARATHINAM

       Vs.

RESPONDENT: STATE OF TAMIL NADU AND ANR.

DATE OF JUDGMENT:       06/09/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Delay condoned.      This special  leave petition  has been filed against an order of  the Tamil  Nadu  Administrative  Tribunal,  Madras Bench, made an February 26, 1996 in Da No.2152 of 1991.  The petitioner,  while  working  as  Assistant  commissioner  of Commercial   Taxes,    demanded   and    accepted    illegal gratification.   Consequently he  was suspended from service on  October  1,  1995.  An  enquiry  into  the  charges  was conducted by the Tribunal for disciplinary proceedings.  The Tribunal  recommended   dismissal  of  the  petitioner  form service on  the basis  of the finding that the preponderance of evidence  established that  petitioner had  demanded  and accepted    illegal     gratification     from     PW     -I (Shammugasundaram).   Accepting the report, the disciplinary authority by  its order dated January 6, 1989, dismissed the petitioner form  service.   The petitioner  than filed DA in the Tribunal.   In  the first instance, the Tribunal allowed the petition.   Subsequently,  when an  appeal was filled in this Court, this Court by it s order dated September 8, 1995 set aside the Tribunal’s order and held that the Tribunal is not a  fact finding  authority and  the jurisdiction  of the Tribunal is  such matters  is well settled. It was also held that Administrative  Member cannot  alone decide the matter. After the  matter was remitted to the Tribunal, it held that though other  witnesses had  turned hostile  the evidence of PW-1 and other evidence on record was found to be sufficient to dismiss  the petitioner  form service.   Accordingly, the Tribunal has  upheld the  order of  dismissal from  service. Thus, this special leave.      Mr. Ambrish  Kumar, learned counsel for the petitioner, has contended  that as  many as 17 witnesses examined by the Government to  prove the  charges of  demand and acceptance, have turned  hostile and  they were  declared hostile by the prosecution.     The  solitary  evidence  by  PW-1,  chronic defaulter in  payment of sales Tax, is without corroboration on material  particulars and  is not sufficient for order of

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dismissal of  the petitioner form service.  We find no force in the  contention. Admittedly,  the  Evidence  Act  has  no application for  the disciplinary proceedings. The report of the Tribunal  was material before the disciplinary authority to take  action in accordance with law.  It is true that the Tamil Nadu  Public Service  Commissioner had  recommended to take a lenient view in the matter but the Government had not accepted the  recommendation. The view of the Public Service Commission being only recommendatory, the Government was not bound to  accept  the  recommendation  made  by  the  Public Service  Commission.     Taking   all  the   facts  and  the circumstances of  the case,  the Government had accepted the finding of  the Tribunal that preponderance of probabilities did establish  that the petitioner had demanded and accepted illegal gratification  form PW-1  and thereby  he  committed misconduct rightly  leading to dismissal from service.  This finding having  been based  upon the  evidence of  PW-1,  it cannot be  said that the findings is based upon no evidence. It  is   for  the   disciplinary  authority   to  take  into consideration all the relevant facts and circumstance and is found that  the evidence  establishes misconduct  against  a public servant,  the  disciplinary  authority  is  perfectly empowered to  take appropriate  decision as to the nature of the findings  on the proof of guilt. Once there is a finding as regards  the proof  of misconduct,  While making decision to impose  punishment of  dismissal  from  service,  if  the disciplinary authority had take the decision keeping in view the  discipline   in  the  service.  Though  this  Court  is empowered to  go into  the question  as to the nature of the punishment imposed,  it has to be considered in the peculiar facts and  circumstances of each case. No doubt, there is no allegation of  misconduct against  the  officer  during  his earlier carrier. But it does not mean that proved allegation is not  sufficient to  impose the  penalty of dismissal from service. Considered  from this  perspective. we  think  that there is  no illegality  in the order passed by the Tribunal warranting an interference.      Accordingly, this special leave petition is dismissed.