M.M. SUNDRESH, J. - (1.) THE writ appeal has been preferred by the appellant challenging the order of the learned single Judge who in turn confirmed the order of the respondents wherein the appellant was dismissed from service.
(2.) THE brief facts of the case are as follows: i. THE appellant was appointed as Junior Assistant with the respondents on 01.09.1973 and thereafter he served as an Assistant with the respondents ("P" Section). THE appellant was served with a charge memo dated 27.03.1990 framing six charges against the appellant and he was asked to show cause as to why proceedings should not be initiated against him. THE charges framed against the appellant are as follows: (1). That Thiru.A.Savariar, Assistant, 'P' Section who was incharge 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 incharge 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 which he obtained permission to work on the holiday (i.e., 17.02.1990). (6) That, he has arrogated to himself the powers of an officer and has functioned in a highhanded manner." ii. In pursuant to the said charges framed against the appellant, a questionnaire was also given to the appellant asking him as to whether he prefers any oral enquiry. THE appellant submitted his explanation on 22.06.1990 expressing his desire to have an oral enquiry. He was also permitted to inspect the files and other documents. THEreafter the Enquiry Officer held the enquiry on 30.08.1990 and 04.09.1990. A copy of the deposition recorded at the oral enquiry was furnished to the appellant. THEreafter in pursuant to the further statement of defence submitted by the appellant, the Enquiry Officer submitted his report on 31.12.1990. THE copy of the Enquiry Officer's report was furnished to the appellant and in pursuant to the reply given by the appellant, the first respondent being the disciplinary authority concurred with the views of the Enquiry Officer and held that the charges 1, 2, 4 and 6 framed against the appellant are proved as found by the Enquiry Officer. THE further appeal filed by the appellant challenging the order of the first respondent dated 25.03.1991 was also confirmed by the second respondent on 14.10.1992. iii. Being aggrieved against the orders of the respondents, the appellant preferred a writ petition in W.P.No.18836 of 1994. THE learned single Judge after considering the submissions made on behalf of the appellant has dismissed the writ petition. Challenging the said order of the learned single Judge, the appellant has filed the present writ appeal. The charges framed against the appellant are to the effect that the appellant who was in-charge of the appointment of the Chief Invigilator and other Invigilator for the conduct of the main written examination relating to the post of Assistant Surgeon in the Tamil Nadu Medical Service for the year 1989-90. Unauthorisedly served an appointment order to one R.Mahalingam, who was in leave to act as an Invigilator at Bharathiar Arts College for Women, Madras, without obtaining the orders from the competent authority and he has also issued similar orders in favour of one Thiru.Asir for the examinations held on 17.02.1990 and 18.02.1990. In order to get the anticipatory bail, he produced the office note without the authority of the competent authority and by doing the above said acts, he has arrogated to himself the powers of the higher authorities. In his explanation, the appellant had stated that he issued the orders with the approval of the higher authorities, he did not know that the said Mahalingam was on leave and superintendent was present at the time of issuing orders to Mahalingam. The said order was passed in favour of Asir at the request of Shri.Khader Baig, Office Assistant and he has not signed the same. The Anticipatory Bail was sought to avoid the unnecessary harassment by the police as the record produced were only to show that he attended the Office on 17.02.1990. Further it is stated that the orders have been passed with the approval of the higher authorities, since there were insufficient officers to be appointed as Invigilator.
(3.) THE Enquiry Officer gave sufficient opportunities to the appellant to cross-examine the witnesses, the documents and statements have been given to the appellant. After conducting the enquiry, the Enquiry Officer came to the conclusion that charges 1, 2, 4 and 6 have been proved against the appellant. THE disciplinary authority as well as the appellant authority who are the respondents herein have agreed with the findings of the Enquiry Officer and imposed the punishment of dismissal. During the pendency of the writ appeal, the Honourable Division Bench has referred the issue as to whether an officer in-charge can act in the capacity of an Enquiry Officer and discharge the statutory functions vested with the permanent post to which he was made in-charge to a larger Bench. The said reference made by this Honourable Court was answered by the Full Bench in 2008-3-L.W. 760 [A.Savariar V. The Secretary, Tamil Nadu Public Service Commission And Another] by holding that an officer in-charge of a post has got power to discharge the powers and statutory functions of the said post. After the reference was answered by the Full Bench, the matter is again posted before the Division Bench for deciding the case on merits.;