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2012 DIGILAW 195 (MAD)

A. Kailasam v. State of Tamil Nadu

2012-01-10

K.N.BASHA

body2012
Judgment :- 1. The challenge in this writ petition is to the order passed by the respondent herein dated 25.10.2005 confirming the punishment of compulsory retirement inflicted on the petitioner by the Disciplinary Authority. 2. The case of the petitioner is that the petitioner entered the services of the Tamil Government in the Prisons Department with effect from 18.08.1967 as Typist. He was promoted to the post of Assistant in the year 1973 and thereafter to the post of Accountant in the year 1985. He was also promoted to the post of Office Manager in the year 1988 and ultimately, promoted to the post of P.A. to Jail Superintendent with effect from 07.01.1988. The petitioner had rendered unblemished record of service for over 37 years. 3. During the year 1997, there was some difference of opinion between the petitioner and one Mr.S.Anton Devendran over placement of the Monthly Official Personal Register for checking by higher officials. During the middle of 1998, one Mr.C.Raj Kumar took charge as the new Jail Superintendent. The petitioner was unable to sail with him, administratively in his way of administration of affairs relating to the jail. There were strained feelings between them. On 27.05.1998, the said Mr.S.Anton Devendran physically assaulted the petitioner in a public place. A complaint was given to the Police Station at Karimedu, Madurai for such physical assault. The said incident was also informed to the then Jail Superintendent as per the complaint of the petitioner dated 28.05.1998. No action was taken and no F.I.R was filed on his complaint. The Jail Superintendent has also not taken any departmental action against the said Mr.S.Anton Devendran on the complaint preferred by the petitioner. On the other hand, the Jail Superintendent connived to have an alleged trap case set up against the petitioner at a place and time not at all connected in any manner whatsoever with the official work of the petitioner. The Jail Superintendent, on 07.05.1999, obtained a false complaint from Mr.S.Anton Devendran and caused the same to be given to the Director of Vigilance & Anti-Corruption, Madurai at 02.15 p.m. 4. A trap was then said to have been laid at about 08.40 p.m on 07.05.1999 and at that time, the petitioner was in Arulmigu Kaliamman Temple at Arasaradi for prayers. A trap was then said to have been laid at about 08.40 p.m on 07.05.1999 and at that time, the petitioner was in Arulmigu Kaliamman Temple at Arasaradi for prayers. Before the petitioner could realize as to what was happening, the whole exercise was over and a false case of alleged demand and acceptance of a sum of Rs.500/- as bribe from Mr.P.Raj Kumar, Junior Assistant of Central Prison, Madurai, was fabricated and foisted against him. A case was registered against the petitioner by the Vigilance and Anti-Corruption Department, Madurai. The petitioner was placed under suspension by an order dated 08.05.1999 by the Additional Director General of Prisons. As per the said suspension order, it was alleged that the petitioner demanded and accepted a bribe of Rs.500/- on the night of 07.05.1999 at 22.40 hours at his residence from one Mr.P.Raj Kumar, Junior Assistant of Central Prison, Madurai to forward his mutual transfer petition to the Office of the Inspector General of Prisons, Chennai. 5. For the reasons best known to the higher officials in the Prisons Department, the petitioner was subsequently served with a second suspension order dated 10.05.1999 by the Additional Director General of Prisons and in the second suspension order, the allegation was constituted to the effect of alleging that the petitioner had demanded and accepted a bribe of Rs.500/-on 07.05.1999 at 20.00 hours from one Mr.S.Anton Devendran, Junior Assistant of Central Prison, Trichy for taking action to forward the mutual transfer petitions of Mr.S.Anton Devendran, Junior Assistant of Central Prison, Trichy and Mr.P.Rajkumar, Junior Assistant of Central Prison, Madurai to the Office of the Inspector General of Prisons, Chennai with the recommendation of the Superintendent, Central Prison, Madurai. The second suspension order varying and revising the first suspension order was continued without any rhyme or reason. The said factor discloses malafides entertained by the Jail Superintendent and the resultant bias. 6. The petitioner preferred O.A.No.2891/2000 before the Tamilnadu Administrative Tribunal, Chennai challenging the first suspension order dated 08.05.1999 and the second suspension order dated 10.05.1999. The said O.A.No.2891/2000 was admitted and interim stay of both the suspension orders was granted by an order dated 26.04.2000 and the stay order was also later on directed to be continued by an order dated 06.06.2000. The said O.A.No.2891/2000 was admitted and interim stay of both the suspension orders was granted by an order dated 26.04.2000 and the stay order was also later on directed to be continued by an order dated 06.06.2000. Being aggrieved against the said interim orders, the Inspector General of Prisons filed a writ petition in W.P.No.11518/2000 before this Court and this Court by an order dated 12.07.2000 made in W.MP.No.16496/2000 in W.P.No.11518/2000 granted interim stay for 10 weeks of the Tribunal's stay orders dated 26.04.2000 and 06.06.2000. 7. The Vigilance and Anti-Corruption Department, though registered the case in Crime No.2/99, has not filed any charge sheet till date and not even applied for sanction to prosecute the petitioner after completion of investigation. On the other hand, departmental proceedings was initiated against the petitioner pursuant to the issuance of suspension order and charge memo dated 03.08.2000. The following charge was farmed against the petitioner : “That while you (Accused Officer) were working as Personal Assistant to the Jail Superintendent, Central Jail, Madurai actuated by corrupt motive and in abuse of your (Accused Officer's) official position and authority, you (Accused Officer) have committed grave official misconduct and misdemeanor, in as much as on 3.5.1999 when Thiru.S.Anton Devendran, Junior Assistant, Central Jail, Trichy met you (Accused Officer) at 19.45 hrs at your (Accused Officer) Residence in door No.5, Central Jail Prison, Staff Quarters, Madurai, you (Accused Officer)had demanded on illegal gratification of Rs.3000/- for helping the said Anton Devendran in the mutual transfer matter with Thiru P.Rajkumar, Junior Assistant, Central Jail, Madurai who is willing to go over to Trichy. While the said Thiru S.Anton Devendran explained you the difficulties in paying such huge amount of Rs.3,000/- you (Accused Officer)had directed him (the said Anton Devendran) to come and meet you (Accused Officer) with the token advance of Rs.500/- on 7.5.1999 evening and the balance amount of Rs.2500/- to be paid later. In pursuance of the aforesaid demand and direction, when Thiru.Anton Devendran met you (Accused Officer) on 7.5.1999 at 20.00 Hrs at Kaliamman Kovil near you (Accused Officer's) residence and gave you (Accused Officer) the amount of Rs.500/- for considering his mutual transfer petition, you (Accused Officer) had received Rs.500/- as illegal gratification from the said Thiru. Anton Devendran. In pursuance of the aforesaid demand and direction, when Thiru.Anton Devendran met you (Accused Officer) on 7.5.1999 at 20.00 Hrs at Kaliamman Kovil near you (Accused Officer's) residence and gave you (Accused Officer) the amount of Rs.500/- for considering his mutual transfer petition, you (Accused Officer) had received Rs.500/- as illegal gratification from the said Thiru. Anton Devendran. Thus you (Accused Officer) had failed to maintain absolute integrity and devotion to duty and violated rule-20(1) of the Tamil Nadu Government Servants' Conduct Rules, 1973.” 8. In the proceedings before the Tribunal for Disciplinary Proceedings, Madurai, the department/prosecution examined 11 witnesses and marked 21 exhibits and 5 material objects. The petitioner requested the Commissioner for Disciplinary Proceedings through his letter dated 04.05.2001 to permit him to enquire witnesses on his behalf. However, without referring to the said letter dated 04.05.2001, the Commissioner for Disciplinary Proceedings by another letter dated 12.06.2001 posted the case to 3 consecutive dates, namely, 27.06.2001, 28.06.2001 and 29.06.2001 for examination of defence witnesses. Though the petitioner had cited several witnesses, the petitioner was permitted to examine only 11 out of all the several witnesses cited as defence witnesses. 9. This Court by an order dated 07.11.2001 in W.P.No.11518/2000 directed the Tamilnadu Administrative Tribunal, Chennai to hear and decide the vacate stay petition that had earlier been filed by the Department before the Tribunal within 3 months. In the meanwhile, the Tribunal for Disciplinary Proceedings, Madurai had proceeded with and concluded the proceedings in T.D.P.Case No.3/2000 and submitted its Confidential Report vide letters dated 17.10.2001 and 23.10.2001 to the Secretary to the Government of Tamilnadu. In the said Confidential Report, the Tribunal for Disciplinary Proceedings had concluded that the first part of the charge relating to demanding an illegal gratification of Rs.3,000/-for helping PW1, namely, Anton Devendran in the mutual transfer petition with PW3-Mr.P.Rajkumar remain unestablished. However, the Tribunal had arrived at the conclusion that in the absence of any strong evidence on the part of the defence to deny the acceptance of the illegal gratification, the charge of acceptance of Rs.500/- for considering the mutual transfer petition is held to be proved due to preponderance of probabilities. The explanation offered by the petitioner to the effect that the said amount was thrusted and planted into his shirt pocket was not at all considered. The explanation offered by the petitioner to the effect that the said amount was thrusted and planted into his shirt pocket was not at all considered. The petitioner was served with a copy of the findings of the Tribunal for Disciplinary Proceeding, calling the petitioner to submit his explanation. The petitioner submitted his written arguments dated 17.01.2002. By that time, the Tamilnadu Administrative Tribunal by its final order dated 16.07.2002 made in the said O.A.No.2891/2000 upheld the validity of the two suspension orders and also directed the Inspector General of Prisons to revoke the order of suspension and to post the petitioner in the Office of the Inspector General of Prisons or in a non-sensitive post, but the petitioner was not posted to duty. Being aggrieved against the said final order of the Tribunal dated 16.07.2002, the Inspector General of Prisons filed a writ petition in W.P.No.14754/2003 before this Court. 10. The Tribunal, on receipt of the written arguments submitted by the petitioner dated 17.01.2002, ultimately, passed an order of imposing punishment of compulsory retirement against the petitioner after consulting the Tamil Nadu Public Service Commission (TNPSC) by the order dated 19.05.2003 in G.O(Ms)No.414, Home (Prisons-I) Department. Being aggrieved against the said order, the petitioner preferred an appeal dated 15.07.2003 to the Secretary to the Government of Tamilnadu. As no action was taken on such appeal, the petitioner preferred a writ petition in W.P.No.35684/2004 before this Court and this Court by an order dated 17.12.2004 directed the respondent to dispose of the petitioner's appeal dated 15.07.2003 on merits and in accordance with law within a period of twelve (12) weeks from the date of receipt of that order. Thereafter, the Appellate Authority passed an order dated 25.10.2005, confirming the order of the Disciplinary Authority imposing the punishment of compulsory retirement against the petitioner. Being aggrieved against the said order, the petitioner has come forward with this writ petition with the above said prayer. 11. Mr.Ashok Viswanath, learned counsel appearing for the petitioner vehemently contended that the impugned order is liable to be quashed as the Disciplinary Authority as well as the Appellate Authority failed to overlook the serious infirmity and illegality of awarding punishment without establishing the first and foremost charge of the alleged demand of illegal gratification said to have been made by the petitioner from Mr.S.Anton Devendran. It is contended that the Confidential Report submitted to the Disciplinary Authority clearly contains the finding that the charge of the demand of illegal gratification was not established by the department through acceptable evidence. It is further contended that even the second part of the charge, namely, acceptance of Rs.500/-pursuant to the demand made by the petitioner was also not proved even by preponderance of probabilities and the finding was solely based on the phenolphthalein test proving positive. It is pointed out by the learned counsel for the petitioner that both the authorities failed to consider the reasonable and probable explanation offered by the petitioner to the effect that the said amount of Rs.500/-was thrusted and planted into his pocket and the circumstances of the case probablises the said defence theory. It is contended that except the evidence of PW1, there is no corroborative evidence available on record even to establish the second part of the charge, namely, the alleged receipt of the amount of Rs.500/-by the delinquent officer, namely, the petitioner herein apart from the reliance placed by the Disciplinary Authority on the phenolphthalein test proving positive. The learned counsel for the petitioner submitted that even for such finding, the Tribunal placed reliance on the opinion and remarks sent by the TNPSC and the said views or remarks of the TNPSC was not at all served on the petitioner and as such, the impugned order was passed in flagrant violation of the principles of natural justice and as such, the impugned order is liable to be set aside. 12. Per contra, Ms.V.M.Velumani, learned Special Government Pleader contended that there is no infirmity or illegality in the impugned order passed by the Disciplinary Authority. It is contended that though the Disciplinary Authority held that the first part of the charge, namely, demand, is not proved, there is a clear and definite finding to the effect that the department established the main charge of accepting and receiving the bribe amount of Rs.500/-. It is further contended that the amount of Rs.500/- was also recovered and a Mahazar was prepared to that effect and thereafter, the phenolphthalein test was conducted, which proved positive and as such, the department has established the second charge by adducing clear and cogent evidence and by preponderance of probabilities. It is further contended that the amount of Rs.500/- was also recovered and a Mahazar was prepared to that effect and thereafter, the phenolphthalein test was conducted, which proved positive and as such, the department has established the second charge by adducing clear and cogent evidence and by preponderance of probabilities. It is pointed out by the learned Special Government Pleader that a criminal case is also pending as on date against the petitioner. It is submitted that a detailed counter was also filed in this matter by the respondent. 13. I have given my careful and anxious consideration to the rival contentions put forward by either side and perused the affidavit filed by the petitioner and the counter filed by the respondent and the entire materials placed before this Court including the order of the Disciplinary Authority and the order of the Appellate Authority apart from the perusal of the Confidential Report. 14. At the outset, it is to be stated that this is a classic case wherein the petitioner has been served with two suspension orders containing different and varied allegations levelled against the petitioner regarding the alleged demand and receipt of the amount of Rs.500/- by the petitioner from Mr.P.Rajkumar, Junior Assistant of Central Prison, Madurai and from Mr.S.Anton Devendran, Junior Assistant of Central Prison, Trichy for taking action to forward the mutual transfer petitions of Mr.P.Rajkumar and Mr.S.Anton Devendran to the Office of the Inspector General of Prisons, Chennai. It is relevant to refer the two suspension orders as hereunder : The first suspension order dated 08.05.1999 passed against the petitioner reads hereunder: “For having allegedly demanded and accepted a bribe of Rs.500/- on the night of 07.05.1999 at 22.40 hours at his(my) residence from one Tr.P.Raj Kumar, Junior Assistant of Central Prison, Madurai to forward his 'Mutual Transfer Petition' to the Office of the Inspector General of Prisons, Chennai (Case registered in Crime No.2/99, u/s.7 of Prevention of Corruption Act, 1988 by the Vigilance and Anti Corruption, Madurai.” The second suspension order dated 10.05.1999 passed against the petitioner reads hereunder: “For having allegedly demanded and accepted a bribe of Rs.500/- on 7.5.99 at 20.00 Hrs. at his (my) residence from one Mr.S.Anton Devendiran, Junior Assistant of Central Prison, Trichy for taking action to forward the mutual transfer petitions of Tr.S.Anton Devendiran, Junior Assistant of Central Prison, Trichy and Tr.P.Rajkumar, Junior Assistant, Central Prison, Madurai to the Office of the Inspector General of Prisons, Chennai with the recommendation of the Superintendent, Central Prison, Madurai (case registered in Crime No.2/99, u/s.7 of the Prevention of Corruption Act, 1988 by the Vigilance and Anti-Corruption, Madurai.)” A reading of the above said two suspension orders makes it abundantly clear that the first suspension order is in relation to the allegation levelled against the petitioner in respect of Mr.P.Rajkumar, Junior Assistant, Central Prison, Madurai and the second suspension order is in respect of Mr.S.Anton Devendran, Junior Assistant, Central Prison, Trichy and in both the suspension orders, the date of incident is mentioned as 07.05.1999 but the time is different, as in the first suspension order the time is mentioned as 22.40 hours and in the second suspension order, the time is mentioned as 20.00 hours. Though the petitioner has been served with two different and varied suspension orders, for the reasons best known to the department, as stated above, the fact remains that the disciplinary proceedings finding is only in respect of the allegation levelled against the petitioner for making the demand of illegal gratification only from Mr.S.Anton Devendran as per the charge memo dated 03.08.2000. This serious infirmity itself makes it crystal clear that the department has not come forward with a clear and definite case against the petitioner. 15. It is pertinent to note that the above said Mr.P.Rajkumar, Junior Assistant, Central Prison, Madurai was examined as PW3. The perusal of the evidence of PW3 makes it crystal clear that PW3 has not made a whisper about any alleged demand of illegal gratification said to have been made by the delinquent officer, namely, the petitioner herein. The said Mr.P.Rajkumar, who was examined as PW3 was not treated hostile. It is seen that the prosecution placed reliance on PW2, one Murugandi, packer in T.T.D.C. Hotel and he has not supported the case of the department and he has not spoken about the alleged demand of illegal gratification said to have been made by the delinquent officer, namely, the petitioner herein and he has been treated as hostile by the department. Nothing was elicited during the course of examination to discredit his version. 16. Added to this infirmity, it is pertinent to note that a Confidential Report was submitted by the Tribunal as constituted by the Commissioner for Disciplinary Proceedings, Madurai in T.D.P.No.3/2000 dated 17.10.2001 in which it is categorically stated that the charge relating to the demand of Rs.3,000/- said to have been made by the delinquent officer, namely, the petitioner herein on 03.05.1999 was not established. The relevant portion of the conclusion arrived in the Confidential Report is to be incorporated hereunder: “49. Apart from PW1, who himself is the complainant; PW2 was examined to corroborate the demand of Rs.3,000/- by PW1 on 3.5.99. PW1 has clearly stated in his statement given to the I.O. (PW11) that PW3 Tr.Rajakumar was not aware of the demand of bribe who was also a party to the mutual transfer deed. So the only witness who would corroborate as per the statements given before I.O. was PW2 Tr.Murugandi who turned hostile denying the demand of any money by the AO. The only fact evident from his deposition is the visit of PW1 and PW2 to AO's house before the occurrence of the trap. 50. In this context, the confidential report discussing the allegation sent by Vigilance is to be mentioned which had concluded that there was no sufficient evidence to corroborate the demand of Rs.3,000/- by AO except from the deposition of PW1 and the evidentiary value could not be considered.” The above finding arrived as per the Confidential Report makes it crystal clear that the department has miserably failed to prove the first and foremost part of the charge levelled against the petitioner, namely, the alleged demand of illegal gratification of Rs.3,000/- by the delinquent officer, namely, the petitioner from Mr.S.Anton Devendran. It is pertinent to note that as far as the remaining part of the charge, namely, the alleged receipt of the amount of Rs.500/- as illegal gratification by the petitioner, the Confidential Report concluded that the said part of the charge was proved by solely placing reliance on the phenolphthalein test proving positive. It is seen that the probable and plausible explanation offered by the delinquent officer, namely, the petitioner to the effect that the said amount of Rs.500/- was thrusted and planted into his shirt pocket was simply brushed aside. It is seen that the probable and plausible explanation offered by the delinquent officer, namely, the petitioner to the effect that the said amount of Rs.500/- was thrusted and planted into his shirt pocket was simply brushed aside. Though the respondents stated in the counter that a criminal case is still pending, it is pertinent to note that the criminal case is pending only at the F.I.R stage and the perusal of the Confidential Report itself makes it abundantly clear that the Vigilance had concluded that there was no sufficient evidence to corroborate the demand of Rs.3,000/- by the petitioner and as such, it is quite possible that the Vigilance and Anti Corruption Department would not have filed the final report by pursuing the criminal proceedings pursuant to the registration of the F.I.R. It is not stated by the respondents that the investigation was completed and charge sheet filed against the petitioner. 17. The perusal of the order of the Disciplinary Authority dated 19.05.2003 makes it crystal clear that in respect of the said charge, the Disciplinary Authority placed reliance on the views given by the TNPSC, behind the back of the petitioner, to the effect that though the first part of the charge relating to the demand of illegal gratification is not established or proved, the receipt of Rs.500/- as illegal gratification by the petitioner at the time of trap was established beyond reasonable doubt. It is pertinent to note that the said views incorporated in the order of the Disciplinary Authority dated 19.05.2003 does not disclose the reason or ground on which the said view was given by the TNPSC. 18. Added to such infirmity, it is also to be stated that the copy of the views given by the TNPSC was also not served to the petitioner. At this juncture, it is relevant to refer the decision of the Hon'ble Apex Court in S.N.Narula v. Union of India and Others reported in (2011) 4 SCC 591 , wherein the Hon'ble Apex Court has held as hereunder: “6. We heard the learned counsel for the appellant and the learned counsel for the respondent. It is submitted by the counsel for the appellant that the report of the Union Public Service Commission was not communicated to the appellant before the final order was passed. We heard the learned counsel for the appellant and the learned counsel for the respondent. It is submitted by the counsel for the appellant that the report of the Union Public Service Commission was not communicated to the appellant before the final order was passed. Therefore, the appellant was unable to make an effective representation before the disciplinary authority as regards the punishment imposed. 7. We find that the stand taken by the Central Administrative Tribunal was correct and the High Court was not justified in interfering with the order. Therefore, we set aside the judgment of the Division Bench of the High Court and direct that the disciplinary proceedings against the appellant be finally disposed of in accordance with the direction given by the Tribunal in para 6 of the order. The appellant may submit a representation within two weeks to the disciplinary authority and we make it clear that the matter shall be finally disposed of by the disciplinary authority within a period of 3 months thereafter.” The principle laid down by the Hon'ble Apex Court in the decision cited supra is squarely applicable to the facts of the instant case, as in this case also, though the Disciplinary Authority and the Appellate Authority placed reliance on the views given by the TNPSC in imposing the punishment of compulsory retirement against the petitioner, the said copy of the views given by the TNPSC was not at all served on the petitioner and as such, the impugned orders were passed in flagrant violation of the principles of natural justice and thereby the entire proceedings is vitiated. 19. In view of the above conclusions arrived by this Court, it could be stated that the department has not only failed to prove the first and foremost charge of the alleged demand of illegal gratification said to have been made by the delinquent officer namely, the petitioner's herein, but also miserably failed to establish that the petitioner willingly and voluntarily received and accepted the alleged bribe amount of Rs.500/- from Mr.S.Anton Devendran and the findings of the Disciplinary Authority and the Appellate Authority holding that the charge of the receipt of the alleged bribe amount of Rs.500/-is nothing but a perverse finding. 20. 20. The perusal of the order of the Appellate Authority, namely, the impugned order dated 22.10.2005 reveals that the Appellate Authority simply incorporated the charges and stated about awarding of the punishment of compulsory retirement and also incorporated the views expressed by TNPSC and ultimately stated that the Government has examined the review petition of the petitioner along with the TNPSC views and decided to reject the review petition. The said impugned order is nothing but a nonspeaking order and the points raised by the delinquent officer was not at all considered and no valid reason assigned for rejecting the review petition and as such, this Court has no hesitation to hold that the impugned order was passed in flagrant violation of the principles of natural justice. 21. The last but not the least point to be considered is the malafides alleged against the complainant namely Mr.S.Anton Devendran. The petitioner also produced a copy of the complaint dated 28.05.1998 given by the petitioner against the said Mr.S.Anton Devendran to the Inspector of Police, Karimedu Police Station, Central Prison, Madurai. It is seen from the perusal of the said complaint that the petitioner alleged that the said Mr.S.Anton Devendran strangulated him on 27.05.1997 at 06.54 p.m. It is further alleged in the said complaint by the petitioner that the said Mr.S.Anton Devendran threatened him with dire consequences. A copy of the complaint was also marked to the Superintendent of Central Prison, Madurai. It is further relevant to note that even in the arguments put forward by the defence as per the perusal of the Confidential Report, it is stated that Mr.S.Anton Devendran who has been examined as PW1 tried to strangulate the delinquent officer, namely, the petitioner herein and also threatened him with dire consequences and it is contended that the said fact cannot be ignored and overlooked in the context of the trap incident. The petitioner also examined a defence witness namely, Mr.Raman, D.I.G. Prisons, Madurai Range as DW4. DW4 has deposed about the irregularities said to have been committed by PW1 namely, Mr.S.Anton Devendran and further stated that an anonymous petition purported to tarnish the career of the delinquent officer, namely,the petitioner herein was sent and latter discovered to have been written by PW1. DW4 has deposed about the irregularities said to have been committed by PW1 namely, Mr.S.Anton Devendran and further stated that an anonymous petition purported to tarnish the career of the delinquent officer, namely,the petitioner herein was sent and latter discovered to have been written by PW1. DW4 further deposed that PW1 was known for threatening the fellow officials for covering up his deficiencies in his performance and also stated that it was true that PW1 and typist Muthusamy threatened the delinquent officer, namely, the petitioner herein with dire consequences. This evidence of a top police official, who held the position of D.I.G cannot be ignored and overlooked. 22. At this juncture, it relevant to refer the decision of the Hon'ble Apex Court in Ajit Kumar Nag v. General Manager (P.J.), Indian Oil Corporation Ltd., Haldia and Ors. reported in AIR 2005 SC 4217 , wherein the Hon'ble Apex Court has held as hereunder: "44 ...It is well-settled that the burden of proving mala fide is on the person making the allegations and the burden is "very heavy"......" In yet another decision in Bank of India and Ors. v. T.Jogram reported in AIR 2007 SC 2793 , the Hon'ble Apex Court has held as hereunder: "15 ... It is well settled law that the allegation of malafide cannot be based on surmises and conjectures. It should be based on factual matrix..." As far as the case on hand is concerned, the undisputed fact remains that the petitioner raised the allegation of malafide at the earliest point of time and he has also produced a copy of the complaint against the complainant, namely, PW1/Mr.S.Anton Devendran dated 28.05.1998 given to the Inspector of Police, Karimedu Police Station, Central Prison, Madurai and a copy was also marked to the Superintendent of Central Prison, Madurai. Apart from producing such material, the petitioner also went to the extent of examining one top police official, namely, Mr.Raman, D.I.G Prisons, Madurai Range as DW4. The said witness examined as DW4 clearly and categorically stated about the threat made by PW1/Mr.S.Anton Devendran and also about his conduct of sending anonymous letters with a view to tarnish the image of the petitioner herein. The said witness examined as DW4 clearly and categorically stated about the threat made by PW1/Mr.S.Anton Devendran and also about his conduct of sending anonymous letters with a view to tarnish the image of the petitioner herein. Nothing was elicited during the course of cross examination to discredit his evidence and on the other hand, during the course of cross examination, the said witness, namely, Mr.Raman, D.I.G Prisons, Madurai Range has categorically stated that the petitioner was a non-controversial person and he has not received any departmental punishment throughout his career. DW4 has also strongly objected to the remarks that he was deposing false evidence to help the petitioner with a view to relieve him from the grave charges framed against him. Therefore, in the instant case, the petitioner has not only raised the plea of malafides but also established the same by producing documentary evidence and examining defence witness as stated above. This important factor has been completely overlooked by the Disciplinary Authority as well as the Appellate Authority. In view of the malafides alleged and established by the petitioner as stated above, this Court has no hesitation to hold that the entire proceedings is vitiated. 23. In view of the aforesaid reasons, this Court has come to the irresistible conclusion that the impugned orders are unsustainable in law. Accordingly the writ petition is allowed and the impugned order passed by the respondent in G.O.(2D) No.460 dated 25.10.2005 confirming the order of compulsory retirement passed by the Disciplinary Authority in G.O.(Ms.)No.414, Home (Prison-I) dated 19.05.2003 are hereby set aside. Consequently, the petitioner is entitled to retiral and all attendant benefits as the petitioner has already attained the age of superannuation. The above said exercise shall be completed within a period of twelve (12) weeks from the date of receipt of a copy of this order.