Madras High Court
K.Dhanasekaran vs State Of Tamil Nadu on 8 October, 2010
Author: V. Dhanapalan
Bench: V. Dhanapalan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.10.2010 CORAM: THE HONOURABLE MR.JUSTICE V. DHANAPALAN W.P. No. 329 of 2008 K.Dhanasekaran .. Petitioner Vs. 1. State of Tamil Nadu, Rep. by its Secretary to Government, Housing & Urban Development Department, Fort St.George, Chennai-600 009. 2. Tamil Nadu Housing Board, Rep. by its Managing Director 493, Anna Salai, Nandanam, Chennai 600 035. 3. The Secretary cum Personnel Officer, Tamil Nadu Housing Board, 493, Anna Salai, Nandanam, Chennai 600 035. 4. The Executive Engineer & Administrative Officer Tamil Nadu Housing Board, Anna Nagar Division, Thirumangalam, Chennai 600 101. .. Respondents Writ petition is filed under Article 226 of Constitution of India praying for the issuance of a writ of Certiorarified Mandamus after calling for the records from the first respondent viz. the order of the first respondent dated 19.10.2007 G.O.(D)No.218 confirming the orders of the Appellate Authority, the Second Respondent dated 12.01.2007 in proceedings No.DC2/4899/88 together with the order of the third respondent dated 10.11.2005 vide proceedings No.DC2/4899/88 and quash the same and consequently, direct the respondents to reinstate the petitioner in service with backwages, continuity of service, consequential and attendant benefits. For Petitioner : M/s.C.S.Monica For Mr.S.Vaidyanathan For Respondents : Mr.S.Gopinathan for R1 Addl. Govt. Pleader Mr.A.Vijayakumar for R2 to R4 O R D E R
Heard M/s.C.S.Monica, learned counsel for Mr.S.Vaidyanathan, learned counsel appearing for the petitioner, Mr.S.Gopinathan, learned Additional Government Pleader appearing for the first respondent and Mr.A.Vijayakumar, learned counsel for the respondents 2 to 4.
2. In this writ petition, the petitioner, by challenging the order of dismissal passed by the third respondent dated 10.11.2005 and the Appellate Authority's order dated 12.01.2007, confirming the order of dismissal and the Government's order dated 19.10.2007 in the further appeal preferred by the petitioner, sought for quashment of the same and for a consequential direction to the respondents to reinstate the petitioner in service with back-wages, continuity of service, consequential attendant benefits.
3. According to the petitioner, he studied upto SSLC (old XI Standard), but unfortunately, he was not successful in clearing the papers in the examination. He joined the services of the Tamil Nadu Housing Board (hereinafter referred to as 'TNHB') in the year 1981 in the post of Sevakh and subsequently, promoted as Bill Collector. He served TNHB for 24 years and he was too young. Based on the certificates produced by his father, he was inducted in TNHB.
3a. The petitioner would submit that due to the vigilance interference, it was given to the light that one Ekambaram, an employee of Collectorate, procured several certificates to enable the unemployed youths to get employment in Government and other places. When the Vigilance Case started going against him, he committed suicide. The petitioner states that in that Vigilance enquiry, it was found that his certificate was also a forged one and based on that, an enquiry was conducted by the TNHB and he was suspended from service on 21.03.2003 and a charge sheet was issued against him on 26.02.2004, in which, two charges were framed against him alleging that he had produced bogus transfer certificate purported to have been issued by the Corporation High School, Saidapet, thereby, he violated the Tamil Nadu Housing Board Officers and Servants Rules (hereinafter referred to as 'Rules') and Tamil Nadu Housing Board Service Regulation 36(a) (ii) of 1969 (hereinafter referred to as 'Regulation').
3b. According to the petitioner, he gave a detailed explanation on 03.09.2004 to the charge memo, stating that he studied 11th standard, but failed and also stated that his father might have produced the certificate and he was not aware of the same. However, not satisfying with his explanation, an enquiry was conducted against him. In the enquiry, the respondents produced the certificate issued by Sir Thiyagaraya College School, Chennai-21. He also stated before the Enquiry Officer that when he was asked to produce the certificate, his father produced all his certificates and thereafter, kept all his original certificates with him, as he feared that he might misplace the original certificates at the young age. Then, the enquiry finding of the Enquiry Officer dated 08.08.2005 was forwarded to him and he was asked to submit his comments on the undated report of the Enquiry Officer. It was held in the Enquiry Report that the certificate issued by the Corporation School, Saidapet, is not a genuine one, but it was also stated that the Enquiry Officer had not given any reason as to how the certificate was produced to the TNHB. He further submits that if he wanted to stand by the certificate, which was not his intention, he would not have produced the XI standard certificate given by Sir Thiyagaraya College School. Therefore, he claims that based on the certificate, he is entitled to hold the post of Sevakh and Bill Collector.
3c. It is submitted by the petitioner that on receipt of his comments dated 06.09.2005, without taking into consideration of his contention, the third respondent proceeded with and ultimately passed an order of dismissal from service on 10.11.2005 with immediate effect. Then he preferred an appeal on 02.01.2006 to the Chairman, now the Managing Director, who also rejected his appeal by an order dated 12.11.2007 and thereafter, further appeal has been preferred to the Government and the first respondent, by an order dated 19.10.2007, confirmed the orders of the Disciplinary & Appellate Authority, viz. 1st and 2nd respondents. Assailing the orders of the respondents, the petitioner filed this writ petition seeking to quash the same on various grounds that the order was issued and signed by the Managing Director, even though it says it was by the order of the Board. It is his contention that he was not given any opportunity of personal hearing before imposing the capital punishment of dismissal. It was not his mistake for producing a wrong certificate. Therefore, he prayed for allowing the writ petition.
4. The third respondent, on behalf of other respondents, has filed counter. It is stated in the counter that the petitioner was appointed as Sevakh (Office Assistant) in Chairman's Proceedings No.E2(3)/38840/81-7 dated 18.11.1981 and joined duty as Sevakh (Office Assistant) on 23.11.1981 forenoon in Nandanam Division of Tamil Nadu Housing Board. His date of birth is 06.06.1958 as per the entries made in the Service Book of the individual, his educational qualification (as per Column 9 of Service Book) is VIII Standard passed in the month of April 1973 TC.No.39 with Admission No.2246 and he also made his signature in the Service Book in Col.13.
4a. While such being the position, the Deputy Superintendent of Police, Vigilance & Anti-Corruption, Chennai-4, vide his letter No.RC7/AC/84 No.1 dated 14.01.1988, requested to send the Service Book and appointment files of the following persons for investigation against the staff of the Collectorate of Madras in sponsoring candidates for the post of last grade Government servants.
Tvl.
1. K.Gajendran
2. A. Elango
3. G.Mohan
4. V. Radhakrishnan
5. E.Kamaraj
6. G.Pannerselvam
7. Nagalingam
8. Dhanasekaran
9. Joseph Based on the request of the Vigilance & Anti-Corruption Department, the Service Register of the above persons along with the appointment files have been handed over to the Vigilance Anti & Corruption, Chennai-4 on 14.03.1988.
4b. The respondents would further submit that the Deputy Superintendent of Police, Vigilance & Anti-Corruption, City-II Department, Chennai-6 in Letter No.RC7/AC/84 M.C-1 dated 25.05.1989 among other things stated that there are materials to indicate that they have resorted to forgery and have forged records for the purpose of gaining employment as Government Servant and further requested that necessary independent verification regarding the genuineness of the documents may be made and departmental action should be initiated against them. Accordingly, transfer certificates bearing Nos. 39 and 318 issued in the name of the Writ Petitioner was referred to the District Educational Officer, Chennai for its genuineness. On verification of these certificates with the concerned authorities, the District Educational Officer, Chennai East in her letter dated 04.07.2002 reported that the transfer certificate bearing No. 318 in the name of K.Dhanasekaran is genuine.
4c. In the counter, it is stated that the petitioner's educational qualification as per Service Book of the individual is VIII standard passed in April 1973, T.C.No.39 with Admission No. 2246. While so, the District Educational Officer, Chennai, in another letter dated 28.10.2002, reported that the transfer certificate bearing No.39 is not genuine, which was not issued in the name of K.Dhanasekaran by the Head Master, Corporation High School, Saidapet, Chennai. Thus, the respondents would plead that the petitioner gained appointment as Sevakh (now called as Office Assistant) in the Chairman's Proc.No.E2-3/38840/81-7 dated 18.11.1981 by producing forged records and hence, he (then Office Assistant), Bill Collector, was placed under suspension in Memo No.DC4/4899/88 dated 19.03.2003 and the sanction accorded in Board's Resolution No.12.10 dated 12.03.2003. Subsequently, the following two charges were framed against him vide Memo No.DC4/4899/88 dated 19.06.2003 under Regulation 37(b) of Tamil Nadu Housing Board Service Regulation of 1969:
i)That the said K.Dhanasekaran, Bill Collector, Anna Nagar Division (under suspension) joined duty as Sevakh in Tamil Nadu Housing Board on 23.11.1981 in Board's Proceedings No.E2-3/38840/81-7 dated 18.11.1981 by producing bogus Transfer Certificate bearing No.39 with admission No.2246, purported to have been issued by the Corporation High School, Saidapet and cheated the office.
ii)That by the act of producing bogus certificate and cheating the office, he violated Section 20 of Tamil Nadu Housing Board Officers and Servants Conduct Regulation 1963 and Tamil Nadu Housing Board Service Regulation 32(A) of 1969.
4d. The respondents also state that to the charge memo, the petitioner furnished his explanation on 03.09.2004. One Mr.S.P.Rajamani, Account Officer, Tamil Nadu Housing Board, was appointed as Inquiry Officer on 21.09.2004, who submitted his report on 29.07.2005 holding that the charges framed against the petitioner were proved and a copy of the Inquiry Officer was communicated to the petitioner on 08.08.2005 and obtained his further representation on 06.09.2005.
4e. According to the respondents, both the charges against the individual are proved holding that the individual has obtained employment by producing bogus certificate. Therefore, it is proved beyond doubt on his own admission and based on documentary evidence. The charges are very serious and call for an exemplary punishment. Hence, the petitioner was awarded with the punishment of dismissal from service with immediate effect vide Proceedings No.DC4/4899/88 dated 10.11.2005. Aggrieved over the above, the petitioner preferred an appeal before the Board against the punishment awarded in proceedings dated 10.11.2005. The Board, after a detailed examination in its Resolution No.12.02-12 dated 08.12.2006, resolved the following:
"The Board resolved to reject the appeal petition of Thiru K.Dhanasekaran, Bill Collector, since the petitioner had produced bogus transfer certificate at the time of joining the office."
4f. It is submitted by the respondents that thereafter, the petitioner filed an appeal before the Government on 01.03.2007. After examining the matter in detail, the Government, vide its order No.G.O.(1D)No.218, Housing & Urban Development HB1(2) Department dated 19.10.2007 also rejected the further appeal of the petitioer.
4g. It is stated by the respondents that the Enquiry Officer, after conducting a detailed personal enquiry with the petitioner and on scrutiny of the connected records, came to a conclusion that both the charges against the petitioner are held proved based on the Chief Educational Officer's report regarding genuineness of the transfer certificate, purported to have been issued in the name of the petitioner by the Corporation High School, Saidapet, Chennai. While issuing appointment order, the petitioner, as an employee, was duly bound to furnish original and genuine certificate of his education qualification etc. Since the certificate furnished by the petition, on verification, was found to be a bogus one, the petitioner cannot abdicate his responsibility in submitting original records and denying thereof.
4h. The competent Authority, after examining the connected records, came to a conclusion that the charges framed against the petitioner are held proved beyond doubt on his own admission and also based on the documentary evidence. The petitioner's subsequent defence by adverting to the other certificate from Thiagarayar College School is irrelevant to the issue. Therefore, the order of dismissal passed by the Competent Authority and the Appeal petition preferred by the petitioner has been dealt with by the Board (Appellate Authority). The Board, after careful consideration, in its Resolution No.12.02.-12 dated 18.12.2006, rejected the appeal petition. The Government, after careful consideration of the entire issue, also rejected the further appeal of the petitioner, confirming the order of Disciplinary Authority and the Appellate Authority. According to the respondents, considering the gravity of charges, the punishment of dismissal from service was awarded to the petitioner as per the Rules and Regulation and the same are in order and reasonable one. Therefore, they prayed for dismissal of the writ petition.
5. The contention raised by the learned counsel for the petitioner is that the explanation given by the petitioner was not taken into account by the Enquiry Officer. Therefore, the enquiry findings based on the certificate submitted by the father of the petitioner cannot be taken into as a valid evidence to prove charges, as his subsequent certificate in original would give a clear evidence. Therefore, the Enquiry Officer's report is perverse and the conclusion arrived at by the Disciplinary Authority as well as the Appellate Authority is not in accordance with law. Learned counsel would further contend that the order of dismissal is excessive and disproportionate. When the petitioner is having a required qualification for the post of last grade Government servant, the orders impugned are arbitrary and violative of the principles of natural justice. It is also her contention that the authorities have not taken into account the explanation submitted by the petitioner and passed the orders without affording any opportunity of personal hearing.
5a. In support of her contention, learned counsel for the petitioner would rely on the following decisions:
(i) a decision of the Hon'ble Supreme Court reported in (1995) 6 SCC 749 in the case of B.C. Chaturvedi v. Union of India "HANSARIA, J. (concurring) I am in respectful agreement with all the conclusions reached by learned brother Ramaswamy, J. This concurring note is to express my view on two facets of the case. The first of these relates to the power of the High Court to do complete justice, which power has been invoked in some cases by this Court to alter the punishment/penalty where the one awarded has been regarded as disproportionate, but denied to the High Courts. No doubt, Article 142 of the Constitution has specifically conferred the power of doing complete justice on this Court, to achieve which result it may pass such decree or order as deemed necessary; it would be wrong to think that other courts are not to do complete justice between the parties. If the power of modification of punishment/penalty were to be available to this Court only under Article 142, a very large percentage of litigants would be denied this small relief merely because they are not in a position to approach this Court, which may, inter alia, be because of the poverty of the person concerned. It may be remembered that the framers of the Constitution permitted the High Courts to even strike down a parliamentary enactment, on such a case being made out, and we have hesitated to concede the power of even substituting a punishment/penalty, on such a case being made out. What a difference! May it be pointed out that Service Tribunals too, set up with the aid of Article 323-A have the power of striking down a legislative act.
22. The aforesaid has, therefore, to be avoided and I have no doubt that a High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief, which power it undoubtedly has, in view of a long line of decisions of this Court, to which reference is not deemed necessary, as the position is well settled in law. It may, however, be stated that this power of moulding relief in cases of the present nature can be invoked by a High Court only when the punishment/penalty awarded shocks the judicial conscience.
23. It deserves to be pointed out that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice, and if moulding of relief would do complete justice between the parties, the same cannot be ordered. Absence of provision like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo Singh case13 that the High Courts too can exercise power of review, which inheres in every court of plenary jurisdiction. I would say that power to do complete justice also inheres in every court, not to speak of a court of plenary jurisdiction like a High Court. Of course, this power is not as wide as which this Court has under Article 142. That, however, is a different matter.
24. What has been stated above may be buttressed by putting the matter a little differently. The same is that in a case of a dismissal, Article 21 gets attracted, and, in view of the interdependence of fundamental rights, which concept was first accepted in the case commonly known as Bank Nationalisation case14, which thinking was extended to cases attracting Article 21 in Maneka Gandhi v. Union of India15, the punishment/penalty awarded has to be reasonable; and if it be unreasonable, Article 14 would be violated. That Article 14 gets attracted in a case of disproportionate punishment was the view of this Court in Bhagat Ram v. State of H.P.11 also. Now if Article 14 were to be violated, it cannot be doubted that a High Court can take care of the same by substituting, in appropriate cases, a punishment deemed reasonable by it."
(ii) another decision of the Hon'ble Supreme Court reported in (2003) 9 SCC 228 in the case of State of U.P. v. Jaikaran Singh "This appeal is directed against the judgment of the Allahabad High Court allowing the writ petition filed by the respondent and quashing the order of dismissal from service of the respondent and directing his reinstatement and continuity of service. The respondent who had been initially appointed as a Junior Clerk was promoted as Senior Clerk and then had been deputed to the Secretariat to the Department of Area Development. While continuing on deputation he was repatriated to his parent organisation on 28-9-1988 and he was relieved on 28-12-1988. But since he did not join his parent organisation, the appropriate authority placed him under suspension vide order dated 1-8-1990. A regular disciplinary proceeding was initiated and certain charges were levelled against him. The respondent did not participate in the enquiry proceedings and ultimately the enquiry officer found him guilty of the charges levelled against him. On the basis of the finding of the enquiry officer, the disciplinary authority passed an order of dismissal from service. Assailing the said order of dismissal, the respondent filed the writ petition. The learned Judge did not accept the plea of the respondent that he had not received the order of relieving and on the other hand the learned Judge found laches on the part of the respondent in not appearing before the enquiry officer concerned in the disciplinary proceedings. But being of the opinion that the order of dismissal is not commensurate with the gravity of the alleged misconduct, he interfered with the order of dismissal and directed reinstatement as well as continuity of service and all other benefits. Subsequent to the judgment of the High Court, the respondent was reinstated vide order dated 12-7-1993 but it was indicated that it would be subject to the final decision to be passed by the Supreme Court in special leave petition which has been filed against the order dated 4-5-1993. When the matter was listed before this Court on 1-2-1994, this Court granted stay of the reinstatement but, however, said that the payment of subsistence allowance for the period of suspension has to be paid. Thereafter the appellant passed another order dated 17-3-1994, though the copy filed in this Court indicates it to be of 17-3-1993, revoking the order of reinstatement dated 12-7-1993. The judgment of the Allahabad High Court directing reinstatement is the subject-matter of challenge in this appeal. Mr Markandeya, appearing for the appellant contended that once the Court found the charges to have been established in a disciplinary proceeding and there is no legal infirmity in the conduct of the said proceedings then it would not be appropriate in exercise of jurisdiction under Article 226 to interfere with the quantum of punishment. Normally, the Court in exercise of power under Article 226 does not interfere with the quantum of punishment alone if the charges are established against the delinquent and there is no lacuna in the procedure adopted in the departmental proceedings. But at times if the Court feels that the punishment inflicted is grossly unjust and shocks the conscience then in appropriate cases the Court may interfere. Having regard to the facts and circumstances of the present case and also taking into account the fact that the respondent had served the appellant organisation for about more than 12 years, we think the ends of justice would be met if the order of dismissal is altered to one of compulsory retirement. Accordingly, this appeal is allowed to the extent indicated above."
(iii) a Supreme Court decision reported in (2009) 7 SCC 248 in the case of Ramanuj Pandey v. State of M.P.
8. In Commr. of Police v. Syed Hussain2, this Court observed that: (SCC pp.176-77, paras 10 & 13) 10. It is one thing to say that order passed by the statutory authority is wholly arbitrary and thus violative of Article 14 of the Constitution and thus liable to be set aside, but it is another thing to say that the discretionary jurisdiction exercised by such authority should not ordinarily be interfered with by a superior court while exercising its power of judicial review unless one or the other ground upon which and on the basis whereof the power of judicial review can be exercised, exists.
13. It is, therefore, beyond any doubt or dispute that the doctrine of proportionality has to be applied in appropriate case as the depth of judicial review will depend on the facts and circumstances of each case.
9. Admittedly, it is for the disciplinary authority or the administrative authority to decide the quantum of punishment in a case of misconduct and the role of the court is only secondary. But in view of the gravity of the misconduct, namely, the appellant having apprehended Laxmi Narain and registering him under Section 13 of the Lunacy Act, where the disciplinary authority held the appellant guilty for detaining a public servant in police post without any reason and removed him from government service, the interference with the imposition of punishment is necessary.
10. In the present matter the appellant, while discharging his duties apprehended Laxmi Narain and registered him under the Lunacy Act without any sufficient reasons. This act of his had indisputably caused harassment to Laxmi Narain and was detrimental to the image of the Police Department, but the same was also not grave enough to punish him with removal from services. The appellant as a Head Constable was bestowed with official duties and while discharging them he went outside its purview, which definitely warrants that his services must be terminated, but as a warning to others and not as a vengeance.
11. While considering the power to interfere with the order of punishment, this Court in Rangaswami v. State of T.N.3, held that this Court, while exercising the jurisdiction under Article 136 of the Constitution, is empowered to alter or interfere with the penalty. Accordingly, the punishment of the appellant of dismissal from services as imposed by the disciplinary authority is substituted to one of compulsory retirement from the date of his dismissal from service i.e. 7-5-1992.
(iv) yet another decision of the Hon'ble Supreme Court reported in (2010) 5 SCC 775 in the case of UT of Dadra & Nagar Haveli v. Gulabhia M. Lad
14. The legal position is fairly well settled that while exercising the power of judicial review, the High Court or a Tribunal cannot interfere with the discretion exercised by the disciplinary authority, and/or on appeal the appellate authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the court/tribunal. The exercise of discretion in imposition of punishment by the disciplinary authority or appellate authority is dependent on host of factors such as gravity of misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position that the delinquent holds, previous penalty, if any, and the discipline required to be maintained in the department or establishment he works. Ordinarily the court or a tribunal would not substitute its opinion on reappraisal of facts.
(v) a decision of this court reported in 2009 (4) CTC 158 in the case of N.Sekar Vs. The Director of Medical Education, Chennai-5 and others "6. In the light of the report of the District Elementary Educational Officer, Vellore and having regard to the undisputed fact that the petitioner got the certificate issued by the Headmaster of Panchayat Union Elementary School, Chitteri Village, Arakonam, the petitioner is qualified to be appointed as Barber in terms of Tamil Nadu Basic Service Rules viz. Rule 5(2). Hence, the dismissal order passed against the petitioner, even though he is qualified to be appointed as a Barber cannot be sustained. The petitioner though produced a certificate claiming that he passed 8th standard was found wrong and by producing the same he has not pursuaded the authority to ignore the claim of other candidate. Similar issue was considered by a Division Bench of this Court in W.P.No.38962 of 2002. By order dated 07.03.2005, the Division Bench has held as follows:
"The question is whether production of such false document had in any way, persuaded the Appointing Authority to give appointment to the first respondent or whether the production of such bogus certificate had excluded the claim of any meritorious candidate. As found by the Tribunal, the qualification for the post in which the first respondent was appointed is that one must know to read and write Tamil. No other educational qualification is prescribed. Therefore, probably, out of anxiety, the first respondent would have produced the said certificate, which is wholly uncalled for. The availability of such a certificate on file, assuming it had not been detected, would not give him any additional rights in the matter of promotion. Therefore, in the above noted circumstances, we do not find any illegality at all in the Tribunal setting aside the order of punishment of dismissal and remitting the case to the original authority to impose a lesser punishment, as he may deem fit. The writ petition is accordingly dismissed."
7. In W.P.No.29511 of 2002, etc. Batch, a Division Bench of this Court by order dated 20.02.2006 has taken a similar view. The relevant portion of the order reads as follows:
"2....Three Original Applications along with other Original Applications have been filed by Salai Paniyalargal, who have been removed from service on the ground that at the time of initial applications and subsequent appointments, they have produced false Educational Certificates showing as if they have passed Class V. During the course of enquiry, it was found that, in fact all these applicants have got higher qualifications, even some of them have passed S.S.L.C. but, they have produced the Class V educational qualification with a view to get the employment, thinking that higher qualified person may not be selected. The Tribunal taking into account these factors, held that, even though they were guilty of producing the wrong certificates, instead of removal, the punishment of stoppage of five increments with cumulative effect may be imposed.
3.These order have not been challenged by the concerned individual employees. However, the State Government has filed the present Writ Petitions. The main contention of the State Government is to the effect that since delinquency had been found, the Tribunal should not have interfered with the punishment.
4. Ordinarily, the Administrative Tribunal is not supposed to interfere with the order of punishment once delinquency is found, unless such order of punishment is grossly disproportionate to the nature of delinquency. In the present case, we find that the Tribunal has referred to relevant aspects and has interfered with the order of punishment. In the peculiar facts and circumstances of the case, we do not find any reason to interfere with the discretionary order passed by the Tribunal."
8. Again in the decision in P.Sekar V. Registrar, Tamil Nadu Administrative Tribunal, Chennai and others, 2008 (5) MLJ 646, a Division Bench of this Court had taken the same view. In Tamil Nadu Electricity Board while appointing helpers on the basis of recommendations of Hon'ble Justice Khalid Commission, certain helpers obtained orders of appointment by producing bogus certificates. Disciplinary proceedings were initiated and on the suggestions made by the Division Bench of this Court, the Board resolved to reinstate the helpers who were dismissed and ordered to reduce the pay for three years which will operate for future increments. The said decision was approved by the Division Bench of this Court in W.P.No.16521 of 2002, etc., batch by order dated 05.02.2003.
9. Applying the said decisions to the facts of this case, the impugned order is set aside. The second respondent is directed to reinstate the petitioner as Barber with continuity of service without backwages within a period of four weeks from the date of receipt of a copy of this order. It is made clear that it is open to the second respondent to impose any other lesser punishment for the production of false certificate."
(vi) yet another decision of the Division Bench of this court in W.P.No.2078 of 2004 dated 27.06.2007 in the case of Tmt.M.Sathee Devi Vs. State of Tamil Nadu and another "11. Accordingly, following the judgement of the Supreme Court reported in AIR 1985 Supreme Court 75 (Hussani V. Hon.C.J. of H.C. of Judicature at Allahabad and others); considering the lengthy service rendered by the appellant and the appellant is qualified for the post before she applying for Grade I, we allow this appeal by converting the order of dismissal into one of compulsory retirement. The arrears of pension shall be paid within a period of six weeks from the date of receipt of a copy of this order and the pension payment order shall be issued within the same time for drawing the pension regularly from month to month. Provident fund and gratuity shall be paid if admissible to the appellant on the same computation."
6. Per contra, learned counsel for the respondents would contend that the petitioner resorted to forgery and produced forged records for the purpose of gaining employment as Government Servant and the charges were proved based on his own admission and documentary evidence and the gravity of the charges are so serious. Therefore, the punishment imposed on the petitioner is not excessive, which is in accordance with the provision contemplated under law. He would further submit that the entire proceedings contemplated under Rules and Regulations were followed and the opportunity of hearing was provided to the petitioner. The certificate submitted by the petitioner was found to be a bogus one on verification by the Chief Educational Officer, Chennai and the charges were proved beyond reasonable doubt. Based on the conclusion arrived at by the Enquiry Officer, the Competent Authorities proceeded to impose punishment. Therefore, the learned counsel for the respondents would submit that the orders are perfectly valid in the eye of law and call for no interference of this Court.
6a. Learned counsel for the respondents, in order to substantiate their stand, have relied on the following :
(i) a decision of the Hon'ble Supreme Court reported in (2007) 2 SCC 335 in the case of Superintendent of Post Offices v. R. Valasina Babu "14. The question in regard to the effect of obtaining appointment by producing false certificate came up for consideration in State of Maharashtra v. Ravi Prakash Babulalsing Parmar1 wherein this Court opined that the authorities concerned would have jurisdiction to go into the said question and pass an appropriate order. The effect of cancellation of such caste certificate had also been noticed in the light of a two-Judge Bench decision of this Court in Bank of India v. Avinash D. Mandivikar2 wherein it was held that if the employee concerned had played fraud in obtaining an appointment, he should not be allowed to get the benefits thereof, as the foundation of appointment collapses."
(ii) a decision of this Court reported in CDJ 2008 MHC 2873 in the case of J.Jayaraman Vs. The District Elementary Educational Officer and others "9. Whether leniency can be shown by Courts for having submitted fake forged educational certificates at the time of appointment?
9.1 The Supreme Court had answered this issue in many of its decisions relating to employments being secured by fraud or deceit. Some of the decisions were also rendered in the context of persons gaining entry with false Community Certificates.
9.2 In Bank of India V. Avinash D.Mandivikar (2005) 7 SCC 690, the Supreme Court has held in paragraphs 11 and 12 as follows:
"11...Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. This Court in Bhaurao Dagdu Paralkar V. State of Maharashtra dealt with the effect of fraud. It was held as follows in the said judgment: 2005(7)SCC pp.613-14, paras 12-16.
12...'Fraud is proved when it is shown that a false representation has been made (i)knowingly, or (ii)without belief in its truth, or (iii)recklessly, careless whether it be true or false'.
13. This aspect of the matter has been considered by this Court in Roshan Deen V.Preeti Lal in (2002) 1 SCC 100; Ram Preeti Yadav v. U.P.Board of High School and Intermediate Education in (2003) 8 SCC 311; Ram Chandra Siongh case in (2003) 8 SCC 319 and Ashok Leyland Ltd. V. State of T.N. In (2004) 3 SCC 1.
14. Suppression of a material document would also amount to a fraud on the court. (see Gowrishankar v.Joshi Amba Shankar Family Trust 1996 (3) SCC 1 and S.P.Chengalvaraya Naidu case 1994 (1) SCC 1.
15. 'Fraud' is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti Yadav case.
16. In Lazarus Estates Ltd. V. Beasley Lord Denning observed at QB pp.712 and 713:(All ER p.345-C)(1956) 1 QB 702.
' No judgment of a Court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.' In the same judgment Lord Parker, L.J. observed that fraud vitiates all transactions known to the law of however high a degree of solemnity (p.722).
[19]. These aspects were recently highlighted in State of A.P. V. T.Suryachandra Rao (2005) 6 SCC 149.
Therefore, mere delayed reference when the foundation for the same is alleged fraud does not in any way affect the legality of the reference.
12. "Looked at from any angle the High Court's judgment holding that Respondent 1 employee was to be reinstated in the same post as originally held is clearly untenable. The order of termination does not suffer from any infirmity and the High Court should not have interfered with it. By giving protection for even a limited period, the result would be that a person who has a legitimate claim shall be deprived the benefits. On the other hand, a person who has obtained it by illegitimate means would continue to enjoy it notwithstanding the clear finding that he does not even have a shadow of right even to be considered for appointment."
9.3 The Supreme Court in the decision in Ram Saran V. IG of Police, CRPF (2006) 2 SCC 541 observed in paragraphs 9 to 11 as follows:
"9.In R.Vishwanatha Pillai V. State of Kerala, it was observed as follows: (SCC pp.116-17, para 19) "19. It was then contended by Shri Ranjit Kumar, learned Senior Counsel for the appellant that since the appellant has rendered about 27 years of service, the order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensioner benefits of the appellant. We do not find any substance in this submission as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. The appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was vid and non est in the eye of law. The right to salary or pension after retirement flows from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on a false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for a Scheduled Caste, thus depriving a genuine Scheduled Caste candidate of appointment to that post, does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He, who comes to the court with false claims, cannot plead equity nor would the Court be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of a false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practicing fraud."
"10. Though the case related to a false (caste) certificate, the logic indicated clearly applies to the present case."
"11. This is a case which does not deserve any leniency otherwise it would be giving premium to a person who admittedly committed forgery. In the instruction (GO No. 29 of 1993), it has been provided that whenever it is found that a government servant who was not qualified or eligible in terms of the recruitment rules, etc. for initial recruitment in service or had furnished false information or produced a false certificate in order to secure appointment should not be retained in service. After inquiry as provided in Rule 14 of the CCS(CCA) Rules, 1965, if the charges are proved, the government servant should be removed or dismissed from service and under no circumstances, any other penalty should be imposed."
9.4 Further, the Supreme Court in the decision in Superintendent of Post Offices V. R.Valasina Babu (2007) 2 SCC 335 observed in paragraphs 14 and 15 as follows:
"14. The question in regard to the effect of obtaining appointment by producing false certificate came up for consideration in State of Maharashtra V. Ravi Prakash Babulalsing Parmar wherein this Court opined that the authorities concerned would have jurisdiction to go into the said question and pass an appropriate order. The effect of cancellation of such caste certificate had also been noticed in the light of a two-Judge Bench decision of this Court in Bank of India v. Avinash D.Mandivikar wherein it was held that if the employee concerned had played fraud in obtaining an appointment, he should not be allowed to get the benefits thereof, as the foundation of appointment collapses.
"15. In this view of the matter, we are of the opinion that in a case of this nature, it might not have been necessary to initiate any disciplinary proceeding against the respondent.
9.5 In Additional General Manager Human Resource, Bharat Heavy Electricals Limited V. Suresh Ramakrishna Burde (2007) 5 SCC 336, once again reiterated the principles laid down in R.Viswanatha Pillai V. State of Kerala (2007) 5 SCC 336 and the following passage found in paragraph 10 may be usefully extracted.
"10. An identical controversy was again examined in R.Vishwanatha Pillai v. State of Kerala which is a decision rendered by a Bench of three learned Judges. The employee in the aforesaid case had got an appointment in the year 1973 against a post reserved for Scheduled Caste. On complaint, the matter was enquired into and the Scrutiny Committee vide its order dated 18.11.1995 held that he did not belong to Scheduled Caste and the challenge raised to the said order was rejected by the High Court and the special leave petition filed against the said order was also dismissed by this Court. He then filed a petition before the Administrative Tribunal praying for a direction not to terminate his services which was allowed, but the order was reversed by the High Court in a writ petition. The employee then filed an appeal in this Court. After a detailed consideration of the matter, this Court dismissed the appeal and para 15 of the Report, which is relevant for the decision of the present case, is reproduced below: (SCC p.115)
15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eye of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment, he cannot claim the constitutional guarantee given under Article 311 of the Constitution. As he obtained the appointment on the basis of a false caste certificate, he cannot be considered to be a person, who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of a false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Castes. In view of the finding recorded by the Scrutiny Committee and upheld up to this Court, he has disqualified himself to hold the post. The appointment was void from its inception.
In the light of the above discussion, the contention made by the learned counsel for the petitioners that they should be dealt with leniently must be rejected.
10. Alternative remedy must be exhausted:-
Even if the enquiries proposed by the respondent Corporations are conducted in the manner unknown to law, it is for the petitioners to participate in the same and if any adverse orders are passed, they cannot move this Court on the basis of any defect or irregularity in the enquiry proceedings. The petitioners must necessarily raise an industrial dispute against their removal, if any made, and get their case adjudicated before the Labour Court. This is in view of the fact that the Labour Court, in case, holds that the enquiry is vitiated, has got power to summon records from the appropriate authorities under Section 11 of the Industrial Disputes Act and also to examine any person on oath. In that process, the truth or otherwise of the petitioners' educational qualification will come out and in genuine cases, the petitioners can get proper relief.
6. Apart from the above fact, in the present case, it must be understood that the third respondent Corporation had initiated disciplinary action on the basis of the report received from the first respondent District Educational Officer. Therefore, in order to forestall the said enquiry proceedings, the petitioner cannot come before this Court to attack the very order of the District Educational Officer. It is for the third respondent to conduct the enquiry in the manner known to law and it is for the petitioner to prove his innocence in the departmental enquiry and if any adverse order is passed, it is always open to him to move the machinery provided under the Industrial Disputes Act, 1947 and get appropriate relief. The writ remedy at this stage is clearly misconceived."
7. I have heard the learned counsel on both sides and perused the material documents available on record.
8. It is seen that the petitioner studied up to SSLC (old XI Standard) and he joined the services of the TNHB in the year 1981 in the post of Sevakh (now Office Assistant) and was subsequently promoted as Bill Collector. He served TNHB for 24 years. In a vigilance enquiry, it was noticed that the petitioner's certificate was a forged one, based on which, an enquiry was conducted and he was placed under suspension from service on 21.03.2003. Thereafter, a charge sheet was issued against him on 26.02.2004, alleging that he had produced a bogus transfer certificate purported to have been issued by the Corporation High School, Saidapet, thereby, he violated the Rules and Regulations of the respondent Board. To the charge memo, he gave a detailed explanation stating that he studied 11th standard, but failed and the certificate alleged to have been submitted was produced by his father and he was not aware of the same. An enquiry was conducted and a finding was arrived at on 08.08.2005. It was held in the enquiry report that the charges against the petitioner were proved and therefore, the Disciplinary Authority proceeded further and ultimately dismissed him from service on 10.11.2005 with immediate effect. An appeal preferred by him was also rejected by an order dated 12.11.2007. Further appeal was made to the Government and the orders of the Disciplinary Authority and the Appellate Authority were confirmed by the Government.
9. A scrutiny of the entire records would reveal that the charge sheet was issued by the Managing Director / the Second Respondent of TNHB herein. Therefore, a question has been raised by the petitioner that the second respondent alone is the competent authority to impose the punishment of dismissal. But on a perusal of the order, it is mentioned as 'By order of the Managing Director' signed by the Secretary and Personnel Officer. Therefore, the Secretary and Personnel Officer is the incompetent authority to pass such an order. To examine this question, it is evident that when the charge sheet has been framed and signed by the Managing Director, it would be more mandatory that the appointing authority alone is the competent authority to sign the order of dismissal and the order of the Managing Director signed by the Secretary and Personnel Officer cannot be construed as an order passed by the competent authority. If the order of the charge sheet was signed by the Managing Director, what is the difficulty for him to sign the dismissal order. On perusal of the records, it comes to light that the order is not signed by the competent authority. For this reason also, the order is legally infirmed.
10. Secondly, it is not the case of the respondents that the petitioner is not having required qualification. The only allegations and charges are that he had submitted a bogus certificate for which, the learned counsel for the petitioner relied on a decision of this Court in the case of N.Sekar Vs. Director of Medical Education and others in (2009) 4 CTC Pg.158, wherein, an order of termination has been challenged on the ground that the petitioner was having the prescribed qualification for the post of Barber and he had submitted a bogus certificate claiming that he passed 8th standard. Therefore, this Court held after referring to a decision of the Division Bench of this Court in the case of P.Sekar Vs. Registrar, Tamil Nadu Administrative Tribunal, Chennai as referred above, wherein, certain helpers obtained orders of appointment by producing bogus certificates. Disciplinary proceedings were initiated and on the suggestions made by the Division Bench of this Court, the Board resolved to reinstate the helpers, who were dismissed and ordered to reduce the pay for three years, which would operate for future increments. Based on the above decision, this Court, by applying the said decisions to the facts of the case viz, N.Sekar Vs. Director of Medical Education and others, directed to reinstate the petitioner as Barber with continuity of service without backwages.
11. In this case, it is seen that the petitioner has studied up to SSLC (old XI standard), however, he failed in it. For the post of Office Assistant, even though the petitioner has failed in SSLC, it is not the case of the respondents that the petitioner is not qualified for the said post and there is no doubt that the certificate produced by him was a forged one. However, the order of dismissal appears to be harsh on seeing his explanation that his father only produced the certificate. Therefore, the ratio laid down by the Division Bench as well as the Single Judges of this Court is applicable to the facts of this case also, as the alleged bogus transfer certificate of 8th standard has no bearing.
12. Lastly, a question has been raised as to whether the punishment imposed on the petitioner is proportionate to the charges levelled against him. The settled legal position is that in the matter of imposition of sentence, the scope of interference is very limited and restricted to exceptional cases. The jurisdiction of the High Court to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the Court, cannot be subjected to judicial review. It is also well settled that the High Court cannot interfere with the discretion exercised by the disciplinary authority or the appellate authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the Court. The exercise of discretion in imposition of punishment by the disciplinary authority or appellate authority is dependent on host of factor such as gravity of misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position that the delinquent holds previous penalty, if any, and the discipline required to be maintained in the department or establishment he works.
13. In the instant case, the order of punishment imposed by the disciplinary authority as well as the appellate authority is extreme to the extent of dismissal from service and whether it warrants interference or not is to be examined. It is true that the petitioner had submitted certificates one with SSLC failed and another with 8th standard. As pointed out earlier, it is not the case of the respondents that the petitioner is not qualified. Therefore, the imposition of punishment should be lesser than dismissal from service, based on the alleged bogus certificate. It is also held by the Supreme Court in the case of Ramanuj Pandey Vs. State of Madhya Praesh reported in (2009) 7 SCC 248 that the High Court, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court, it would appropriately mould the relief either directing the disciplinary authority to reconsider the penalty imposed or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.
14. For the foregoing reasons, while analysing the ratio laid down by the Supreme Court as well as this Court and upon perusal of the entire material documents on record, I am of the considered opinion that the punishment imposed on the petitioner is harsh and excessive and therefore, it requires reconsideration and the orders of punishment imposed by the authorities have to be set aside and the matter has to be remanded back to the authorities concerned.
15. Accordingly, the orders impugned in this Writ Petition are set aside and the matter is remanded back to the disciplinary authority to reconsider the entire case based on the material evidence and pass appropriate orders within a period of eight weeks from the date of receipt of a copy of this order. Writ Petition is allowed with the above direction. No costs.
ar To :
1. The Secretary to Government, Government of Tamil Nadu, Housing & Urban Development Department, Fort St.George, Chennai-600 009.
2. The Managing Director, Tamil Nadu Housing Board, 493, Anna Salai, Nandanam, Chennai 600 035.
3. The Secretary cum Personnel Officer, Tamil Nadu Housing Board, 493, Anna Salai, Nandanam, Chennai 600 035.
4. The Executive Engineer & Administrative Officer, Tamil Nadu Housing Board, Anna Nagar Division, Thirumangalam, Chennai 600 101