Madras High Court
C. Mariappan vs Tamil Nadu Generation And Distribution on 8 March, 2012
Author: B. Rajendran
Bench: B. Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08-03-2012
Coram
THE HONOURABLE MR. JUSTICE B. RAJENDRAN
W.P. No. 29703 to 29706 of 2011
and
M.P. Nos. 1, 1, 1 and 1 of 2011
C. Mariappan .. Petitioner in WP 29703
R. Periyannan .. Petitioner in WP 29704
C. Ravi .. Petitioner in WP 29705
R. Perumal .. Petitioner in WP 29706
Versus
1. Tamil Nadu Generation and Distribution
Corporation
rep. By its Chief Engineer (Personnel)
No.144, Anna Salai
Chennai 600 002
2. Superintending Engineer
Tamil Nadu Generation and Distribution
Corporation
Dharmapuri Electricity Distribution Circle .. Respondents in all the
Dharmapuri 635 601 Writ Petitions
WP No. 29703 of 2011:- Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorari after calling for the concerned records from the 2nd respondent, quash the notice of the 2nd respondent bearing Ku.Ka.No.744/NI.Pi.5/U3/ Ko.Po.Ka.Sandru/2011 dated 28.11.2011.
WP No. 29704 of 2011:- Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorari after calling for the concerned records from the 2nd respondent, quash the notice of the 2nd respondent bearing Ku.Ka.No.745/NI.Pi.5/U3/ Ko.Po.Ka.Sandru/2011 dated 28.11.2011.
WP No. 29705 of 2011:- Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorari after calling for the concerned records from the 2nd respondent, quash the notice of the 2nd respondent bearing Ku.Ka.No.685/NI.Pi.5/U3/ Ko.Oo.Na/2011 dated 28.11.2011.
WP No. 29706 of 2011:- Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorari after calling for the concerned records from the 2nd respondent, quash the notice of the 2nd respondent bearing Ku.Ka.No.746/NI.Pi.5/U3/ Ko.Po.Ka.Sandru/2011 dated 28.11.2011.
For Petitioners : Mr. M. Ramdass
in all the writ petitions
For Respondent : Mr. Fakkir Mohideen
in all the writ petitions
COMMON ORDER
The petitioners in all the writ petitions challenge the notice dated 28.11.2011 issued by the second respondent, by which, they were called upon to show cause as to why they should not be dismissed from their services in the respondents/Electricity Board for having submitted bogus educational testimonials at the time of their absorption into service.
2. The petitioners were working in the second respondent/Dharmapuri electricity Distribution Circle on contract basis from the year 1983 to 1986. Considering their long number of years of service on contractual basis, the respondents sought to absorb them in regular service as a Mazdoor. Accordingly, the petitioners herein were absorbed as Mazdoor by an order dated 09.09.2007, 09.09.2007, 09.09.2007 and 19.08.2006 respectively. At the time of such absorption, the petitioners have submitted certificates relating to their educational qualification, which were subsequently found to be fabricated. Therefore, the second respondent issued the impugned show cause notices to the petitioners calling upon them to show cause as to why they should not be dismissed from their service for having submitted false or fabricated educational testimonials at the time of their absorption into regular service.
3. The learned counsel for the petitioners would contend that the certificates produced by the petitioners at the time of their absorption were given only to ascertain the age of the petitioners and for the post of Mazdoor no educational qualification was prescribed. Furthermore, the petitioners were not absorbed on the basis of their educational qualification but on the basis of long number of years of service/experience put in by them in the respondents/Board on contract basis. Therefore, even though the petitioners have furnished false or bogus certificates at the time of their absorption, the punishment proposed to be imposed on them is excessive and disproportionate to the nature of delinquency. In this context, the learned counsel for the petitioners brought to the notice of this Court the Division Bench decision of this Court in Writ Appeal No. 1834 to 1838 of 2009 dated 27.04.2010 wherein in identical circumstances, similarly placed persons like the petitioners, for whom show show causes notices were issued, were directed to be referred to medical board for ascertaining the correct age. The Division Bench also held that the punishment proposed to be imposed on the petitioners is unwarranted considering the nature of offence committed by them. Therefore, the learned counsel for the petitioners prayed this Court to pass similar orders in these writ petitions as well.
4. The learned standing counsel appearing for the respondents vehemently opposed the plea of the petitioners by contending that what is put to challenge in these writ petitions is only a show cause notice issued by the second respondent and therefore, as against a show cause notice, the writ petitions are not maintainable. Further, the petitioners have given an undertaking at the time of their absorption that if if the certificates produced by them were found to be false at a later stage, they will abide by whatever decision taken by the respondents. Therefore, after having given such an undertaking, it is not open to the petitioners to file the present writ petitions and he prayed for dismissal of the writ petitions.
5. I heard the counsel for both sides and perused the materials on record. It is admitted that the petitioners were engaged as contract labourers in the second respondent/electricity Board from 1983 to 1986 and considering their long number of years of service/experience gained by them in such contract work, the respondents/electricity Board issued Board Proceedings in B.P. (F.B) No.27 dated 07.11.2002 deciding to absorb the contract workers on regular basis. Based on the same, the petitioners were absorbed as Mazdoors in the respondents electricity Board during 2006 and 2007. At that time, the petitioners were asked to either produce medical certificate from a recognised Medical Practitioner or to produce testimonials to prove their age. Accordingly, the petitioners have produced certificates issued by the school authorities as a proof of their age. On verification, the certificates produced by the petitioners were found to be false and therefore, the second respondent issued the impugned orders.
6. In the decision of the Division Bench of this Court dated 27.04.2010 made in W.A. No. 1834 to 1838 of 2009, it was held in para-3 as follows:-
"3. Therefore, while setting aside the order of the learned single Judge, we direct the respondent Board to follow the procedure as has been set out in the above referred to extracted paragraphs of the earlier order of this Court. That order has also become final. As the Board thought it fit to implement the directions, it is just and necessary that uniform procedure should be followed in respect of similarly placed employees. As the appellants were also appointed on a regular basis and as their probation has also been declared as referred to above, these writ appeals are allowed. The respondents are directed to follow the directions contained in paragraphs 6, 7 and 8 of the order dated 20.02.2008 passed in W.P. Nos. 38221 of 2006 etc., batch as extracted above and pass orders. These writ appeals are allowed. Connected miscellaneous petitions are closed.
7. In the order dated 20.02.2008 in WP Nos. 38221 of 2006 etc., batch referred to by the Division Bench of this Court mentioned supra, in para No. 6, 7 and 8, it was held as follows:-
"6. In the light of the above conclusion, I hold that the impugned order of the respondent Board cannot be sustained since the whole purpose of the school certificate in the case of the petitioner was only for ascertaining the date of birth of the petitioner. In the event of such certificate found to be not to the satisfaction of the respondent Board, the respondent Board will be well in order, in directing the petitioner to appear before the Medical Board constituted by it and based on the certificate issued by the Medical Board ascertaining the age of the Petitioner, the respondent Board will be fully competent to notify the date of birth of the petitioners in their service record and regularise the service of the petitioners on that basis.
7. In the result, the impugned orders passed by the respondents Board are set aside. The respondents are at liberty to constitute appropriate Medical Board for ascertaining the date of birth of the petitioners by directing the petitioners to appear before the Board. On such direction being issued by the respondent board, the petitioners shall appear and subject themselves to the physical test to be held by the said Medical Board, the same shall form the basis for recording the age of the date of birth in the service record and all their future career of the petitioners shall be determined on that basis. With this direction, the writ petitions stand allowed.
8. It is also made clear that if any such ascertainment is made by the Medical Board based on such medical test, the petitioners will be bound by such ascertainment, in as much as, the petitioners have failed to produce any acceptable statutory record in proof of their date of birth. This will not preclude the respondents from taking any action against the petitioners by imposing any other minor punishment as prescribed by the Board procedure in B.P. (F.B.) No.27 dated 07.11.2002. No costs. Consequently, connected M.P.s are closed."
8. It is evident that the learned single Judge of this Court as well as the Division Bench categorically held that the notices impugned therein, calling upon the petitioners to show cause as to why they should not be dismissed from service for having produced false or bogus certificates at the time of their absorption, is unwarranted and for ascertaining the age of the petitioners, they can be directed to appear before the Medical Board to be constituted by the respondents/Board. As far as punishment for having produced bogus certificate is concerned, it was held by this Court that the punishment proposed to be imposed by the respondents is unwarranted and that the petitioners may be imposed with minor punishment as prescribed by the Board procedure in B.P. (F.B.) No.27 dated 07.11.2002. The said decisions will squarely apply to the facts and circumstances of the case on hand.
9. Therefore, following the decisions of this Court mentioned supra, the impugned show cause notices dated 28.11.2011 issued by the second respondent are quashed. The writ petitions are allowed as prayed for. The respondents are at liberty to constitute appropriate Medical Board for ascertaining the date of birth of the petitioners by directing the petitioners to appear before the Board. On such direction being issued by the respondents board, the petitioners shall appear and subject themselves to the physical test to be conducted by the said Medical Board and the same shall form the basis for recording the age of the date of birth in the service record and the future career of the petitioners shall be determined on that basis. Further, inasmuch as the petitioners have failed to produce any acceptable statutory record in proof of their date of birth, this Order will not preclude the respondents from taking any action against them by imposing any other minor punishment as prescribed by the Board procedure in B.P. (F.B.) No.27 dated 07.11.2002. No costs. Consequently, connected miscellaneous petitions are closed.
rsh To
1. Tamil Nadu Generation and Distribution Corporation rep. By its Chief Engineer (Personnel) No.144, Anna Salai Chennai 600 002
2. Superintending Engineer Tamil Nadu Generation and Distribution Corporation Dharmapuri Electricity Distribution Circle Dharmapuri 635 601