Delinquency has to be proved by positive evidence and not by weakness of defence.

JUDGMENT :-

G.S. Singhvi, J.

1. These appeals are directed against judgments dated 28.2.2008 and 4.2.2010 of the Full Bench and the Division Bench respectively of the Madras High Court whereby the appellant’s challenge to the order of the learned Single Judge was negatived and his dismissal from service was upheld.

2. The appellant joined service under the Tamil Nadu Public Service Commission (for short, ‘the Commission’) as Junior Assistant w.e.f. 1.9.1973. While he was posted in ‘P’ Section of the Commission, which deals with the appointment of Invigilators and Chief Invigilators for various examinations, the Commission issued Notification dated 8.8.1989 for holding competitive examination for direct recruitment of Assistant Surgeons. The main written examination was conducted on 17.2.1990 and 18.2.1990. Shri Syed Abdul Kareem, who was appointed as Chief Invigilator at Bharathiar Government Arts College for Women, North Madras, examination centre, met the Superintendent of Section ‘P’ on 15.2.1990 and requested him to appoint some other person as Chief Invigilator by saying that he was suffering from heart ailment. When the Superintendent expressed his inability to accede to his request, Shri Sayed Abdul Kareem asked for the list of persons who were to assist him. Thereupon, he was given a list of 19 persons. Some of the persons named in the list informed the Chief Invigilator on telephone that they were unable to assist him. Therefore, he again contacted the Superintendent of ‘P’ Section for appointment of substitute Invigilators. The Superintendent then asked the appellant to post five persons to assist the Chief Invigilator. The latter supplied the list of five persons including S/Shri Asir (School Assistant), Khader Baig (Officer Assistant) and R. Mahalingam to Syed Abdul Kareem to work as substitute Invigilators.

3. In the examination held on 17.2.1990, some (six) question papers of the afternoon examination were found mixed up with the morning question papers. When the students pointed out this discrepancy, the Chief Invigilator immediately instructed to take back the question papers of the afternoon examination and issue the question papers meant for morning examination. This incident was reported in the newspapers. The Commission took serious view of the matter and on the basis of preliminary investigation done by the concerned officers, departmental proceedings were initiated against the appellant under Rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules (for short, ‘the Rules’) on the following charges:

“(1) That Thiru. A.Savariar, Assistant, ‘P’ Section who was in charge of appointment of Chief Invigilators and Invigilators for the conduct of Main Written Examination relating to the post of Assistant Surgeon in the Tamil Nadu Medical Service for the year 1989-90 had served appointment order to Thiru. R. Mahalingam, who was on leave, to act as an Invigilator at Bharathiar Arts College for Women, Madras without obtaining the orders of the Officer in charge of the Section.

(2) That, he has unauthorisedly issued orders of appointment as Invigilator to one Thiru Asir, School Assistant, Government Training School, Madras for Assistant Surgeon examination held on 17.02.1990 and 18.02.1990 at Bharathiar Arts College for Women, North Madras though his name was not included in the list furnished by the Collector of Madras.

(3) That, he deputed by orally instructing Thiru. Khader Baig, Office Assistant of Commission's Office to the Examination hall unauthorisedly.

(4) That, he has produced in the Court while filing a petition for anticipatory bail the office note requiring him and certain other staff to attend office on 17.02.1990 without the knowledge of the office. It is highly irregular to produce an official record in the Court without the sanction of the competent authority.

(5) That, he unauthorisedly went to the examination hall without any reason or orders by neglecting his office work for w