Madras High Court
Rajasekaran vs The Appellate Authority/Chief Manager on 23 November, 2015
W.P.(MD)No.10662 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 27.04.2022
DELIVERED ON : 14.06.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD)No.10662 of 2016
and
W.M.P.(MD)Nos.8269 & 8270 of 2016
Rajasekaran ... Petitioner
vs
1. The Appellate Authority/Chief Manager,
Enquiry Cell,
Industrial Relations Department,
Industrial Relations Department,
Indian Overseas Bank,
Central Office, No.763, Anna Salai,
Chennai – 2.
2. The Disciplinary Authority,
Senior Manager,
Enquiry Cell, I.R.Department,
Indian Overseas Bank, Central Office,
Chennai.
1/16
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.10662 of 2016
3. The Branch Manager,
Indian Overseas Bank,
Kadambakudi Branch,
Thanjavur District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorari, to call for the records relates to the Impugned
Order passed by the first Respondent in his Proceedings in
IC/IR/213/626/2015-16 dated 23.11.2015 confirming the impugned order passed
by the second Respondent in his Proceedings in IC/IR/213/2970/2014-15, dated
25.09.2014, quash the same.
For Petitioner : Mr.C.Mayilvahana Rajendran
for Mr.R.Nizam Mydeen
For Respondents : Mr.N.Dilipkumar
2/16
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.10662 of 2016
ORDER
This Writ Petition is filed to quash the impugned order dated 23.11.2015 and the confirmation order dated 25.09.2014.
2. The contention of the petitioner is that due to his family poverty, he was unable to continue his education and he had studied up to third standard in Chellam Aided Middle School, Orathur, Thanjavur District. In the year 1992, the third respondent recruited to the post of Sweeper by calling the list from the District Employment Exchange. Thereby, eligible candidates were sponsored and totally three persons including the petitioner have been sponsored by the Employment Exchange Office. After interview, the petitioner's candidature was scrutinized, thereafter, the third respondent appointed the petitioner as Sweeper. The respondent had promised to promote the petitioner as Messenger after completion of 10 years. At the time of appointment, the petitioner has produced educational qualification certificate. Thereafter, the respondent confirmed the service. The petitioner has completed 22 years of service. The anonymous 3/16 https://www.mhc.tn.gov.in/judis W.P.(MD)No.10662 of 2016 complaint was received stating that the petitioner has produced fake educational qualification certificate. Pursuant to the letter, an enquiry was ordered and an enquiry officer was appointed. A show cause notice dated 02.01.2014 was issued and the petitioner has submitted a letter, dated 17.01.2014, issued by the Headmaster, Chellam Aided Middle School, Orathur. The Headmaster has issued a certificate to that effect the school record was destroyed on fire. The fire accident was confirmed through certificate of Tahsildar, Thiruvaiyur, wherein it has confirmed the fire accident occurred in the school. The second respondent issued a notice dated 11.04.2015, directing the petitioner to appear on 22.04.2014 and 23.04.2014. The petitioner appeared before the enquiry officer and during enquiry one Thomas Singarayer who was working as Teacher in the Chellam Aided Middle School during the period of 01.06.1996 to 30.06.2004 gave evidence that the petitioner studied in the school during the period 1977 to 1979. The said Thomas Singarayer stated that one Ganesan who issued a certificate to the petitioner was working as Assistant Headmaster. The present Headmaster of the school has issued a certificate to that effect that the said Ganesan was working as a Teacher in the above school. The certificate was also submitted before the 4/16 https://www.mhc.tn.gov.in/judis W.P.(MD)No.10662 of 2016 second respondent. Without considering the evidence in support of the case, the second respondent has submitted an enquiry report dated 07.05.2014 and the same was sent to the petitioner. The second respondent directed the petitioner to submit his explanation for the enquiry report. In the enquiry report, the charges levelled against the petitioner are held to be proved. Thereafter, another show cause notice dated 28.04.2014 was issued directing the petitioner to appear on 18.08.2014. The second respondent has issued a show cause notice dated 28.04.2014, informing the petitioner about the punishment of dismissal from service. The petitioner submitted an explanation on 18.08.2014. Without considering the petitioner's explanation, the second respondent has passed a dismissal order, dated 25.09.2014.
3. The contention of the petitioner is that the second respondent has appointed an enquiry officer and he conducted an enquiry and the dismissal from service was also issued by the second respondent. The petitioner has preferred an appeal on 10.12.2014. Since the same was not considered, the petitioner has preferred a writ petition in W.P.(MD)No.8371 of 2016, wherein this Court has 5/16 https://www.mhc.tn.gov.in/judis W.P.(MD)No.10662 of 2016 directed to dispose the Appeal and this Court, vide order, dated 27.04.2016, rejected the Appeal. Aggrieved over the said order, the present writ petition is filed.
4. The respondents have filed a counter affidavit stating that an alternative remedy is available and the petitioner ought to have filed a petition before the Industrial Tribunal. The petitioner joined the service of the Bank by submitting an application form for employment on 25.05.1992. Along with the application form, the petitioner also submitted a record sheet dated 14.06.1981, supporting his educational qualification of third standard. Based on the above certificate, the petitioner was appointed as Sweeper on 18.05.1992. While the petitioner was serving as Messenger in Kadambangudi Branch, a complaint was received stating that the petitioner has submitted a false certificate. On verification it was found that the petitioner while submitting the application form for employment, had stated that he had passed third standard and supporting that averment he had submitted a record sheet issued on 14.06.1981 with admission number 1827/77. As per the record sheet it is stated that the petitioner was admitted on 01.06.1977 6/16 https://www.mhc.tn.gov.in/judis W.P.(MD)No.10662 of 2016 in the first standard and he had passed third standard on 31.05.1980. In order to verify the same, investigation was conducted by appointing an investigating officer. The present Headmaster through a communication has stated that one Mr. C. Ganesan who did not work in their school as Headmaster and also as per the enquiry it was made that the petitioner has not studied in the said school and the transfer certificate submitted by the petitioner is bogus. In this regard, the respondent Bank has also obtained a certificate from the Headmaster of the said school. Therefore, the petitioner has committed certain acts and misconducts. The petitioner was issued with a charge sheet dated 02.01.2014, as per the Memorandum of Settlement dated 10.04.2002, between the bank and its workmen, it has been stated as under:
5(j) doing any act prejudicial to the interest of the bank or gross negligence or negligence invoking or likely to involve the bank in serious loss 5(m) knowingly making a false statement in any document pertaining to or in connection with his employment in the bank” 7/16 https://www.mhc.tn.gov.in/judis W.P.(MD)No.10662 of 2016 Following the charge sheet, an enquiry was conducted and after affording opportunity, the petitioner was proposed with a punishment of dismissal without notice. Thereafter, the petitioner preferred an appeal and the appeal was dismissed. The contention of the respondent is that the said Ganesan is not an authorized person to issue a certificate. Moreover, the Headmaster of Chellam Aided School made an endorsement dated 26.05.2013, that the said Ganesan was not a Headmaster of the School and another endorsement dated 24.02.2014 was made stating that the said certificate was not issued by the said School. The contention of the respondent is that the disciplinary authority can also be an enquiring authority as per Clause 14 of the Memorandum of Settlement, dated 10.04.2002, wherein it has been stated that the “...disciplinary authority may conduct the enquiry himself or appoint another officer as the Enquiry Officer for the purpose of conducting an enquiry.” Therefore, respondents prayed to dismiss the writ petition. As far the appeal is concerned, the petitioner has not adduced any fresh evidence and the same was dismissed. Contrary to the above statement, the Investigation Officer revealed that the certificate given by the petitioner was bogus and it has been produced with an ulterior motive, hence a 8/16 https://www.mhc.tn.gov.in/judis W.P.(MD)No.10662 of 2016 charge sheet was issued. The respondents have stated that the claim of the petitioner regarding submission of the letter for fire accident is denied and no such documents were submitted to the respondents nor it was marked as defence evidence by the petitioner in the enquiry proceedings. As far as the paragraph 7 an 8 of the affidavit is concerned, the said Ganesan who issued a certificate to the petitioner was the Headmaster was denied by the respondent Bank. The said Ganesan is not an authorized person to issue a certificate, hence the respondents prayed to reject the writ petition.
5. Heard Mr.Mayilvahana Rajendran, learned Counsel appering for the petitioner and Mr.N.Dilipkumar, learned Counsel appearing for the respondents.
6. It is seen from the records that the petitioner has produced as if he has studied in third standard. Based on the complaint the respondents have conducted an enquiry. The petitioner has submitted that the Tahsildar has confirmed the fact that there was fire accident in the school and the records were destroyed in fire accident. Therefore, this Court is of the considered opinion that 9/16 https://www.mhc.tn.gov.in/judis W.P.(MD)No.10662 of 2016 there was a fire accident and the records were destroyed.
7. The contention of the respondent is that the petitioner has produced a certificate by one Mr.Ganesan stating that the petitioner has studied in the said school. However, the subsequent Headmaster, namely, Shyamala has given a certificate that the said Ganesan had not worked as Headmaster in the said school. Based on the said certificate, the respondents have initiated the disciplinary proceedings. At the time of enquiry, the petitioner has produced another letter issued by the same school and the same Headmaster, namely, Ms.Shyamala and the document is marked as Ex.No.D, wherein it is stated that the said Ganesan has worked as a Secondary Grade Teacher. The entire case revolves around the certificate issued by the said Ms.Shyamala, where it has been stated that the said Ganesan was not working as Headmaster but the subsequent letter says that the said Ganesan has worked as a Secondary Grade Teacher. The respondents have come to the conclusion since the said Ms.Shyamala has issued a letter that the said Ganesan was not working as Headmaster, the petitioner has produced a bogus certificate. The said stand of Ms. Shyamala was clarified by her subsequent 10/16 https://www.mhc.tn.gov.in/judis W.P.(MD)No.10662 of 2016 letter, where she has clarified that the said Ganesan had worked as Secondary Grade Teacher. On perusal of the records it is seen that the said Ganesan is not an authorized person to issue the certificate, since he was serving as Secondary Grade Teacher only the Headmaster can issue the certificate. But on that particular date, the said Ganesan was in-charge Headmaster. Since the regular HM was not available, therefore, he has issued the letter. The petitioner has submitted a detailed letter issued by the said Shyamala. However, the said letter was not marked in the enquiry proceedings wherein it has stated as under:
“jpUitahW tl;lk; xuj;Jhh; fpuhkk;> nry;yk; cjtp ngWk; eLepiyg;gs;spapy; 1972k; Mz;L Vw;gl;l jP tpgj;jpy; gs;sp Mtzq;fs; midj;Jk; vhpe;J tpl;ld. mjw;fhd tl;lhrpah; mth;fsplkpUe;J rhd;W vz; e.f.1140rp/2002/147d; 26.03.2003y; ngwg;gl;lJ. Nkw;fhZk; uh[Nrfh; me;j fhyj;jpy; fy;tp gapd;wjhf njhpatUk; gl;rj;jpdhy; mjd; cz;ik jd;ik Mtzq;fs; vhpe;J tpl;l gbahy; mwpa fpilf;ftpy;iy. fpuhkj;jpy; tprhhpj;j tifapy; xU rpyh; gapd;W ,Uf;fpd;whh; vd;W njhptpg;gjhy; gapd;W ,Uf;fpwhh; vdj; njhpa tUfpwJ.” The said Ms. Shymala has clarified that the petitioner has studied in the said school, but the documents were destroyed in fire accident and on enquiry in the village some of the villagers have said that the petitioner has studied in the said school. One DW1 / Rajasekaran has deposed that he had studied in the school 11/16 https://www.mhc.tn.gov.in/judis W.P.(MD)No.10662 of 2016 and he is aware that the petitioner had studied in the school but the enquiry officer has not agreed to the statement of DW1. The reason given in the enquiry report was that the said Ganesan had worked as Secondary Grade Teacher and there is no evidence that he had worked as Assistant Headmaster in the absence of Headmaster. Therefore, he is not competent to issue any certificate in the absence of Headmaster, as claimed by DW1 and the relevant portion is extracted hereunder:
“Even though DW 1 had deposed that Mr.Ganesan who wasAsst.Head Master who will officiate as Head master in the absence of Head Master holds no water. As per DE 3, Mr.Ganesan had worked only as secondary grade teacher in Chellam Aided Middle School. This evidences that Mr.Ganesan had never worked as Asst.Head Master of Chellam Aided Middle School and is not competent to issue any certificate in the absence of Head Master as claimed by DW 1.”
8. This finding cannot be accepted for more than one reason. It is the prerogative right of the administration of the school to officiate anybody as Headmaster in the absence of regular Headmaster. It is not known whether the said Ganesan was given any Assistant Headmaster post because there is no post 12/16 https://www.mhc.tn.gov.in/judis W.P.(MD)No.10662 of 2016 called Assistant Headmaster in the School Education Department. The senior most Teacher will be assigned to officiate as Headmaster in-charge in the absence of regular Headmaster. Admittedly the said Ganesan was working as a Secondary Grade Teacher and he may be the senior most Teacher. These facts cannot be scrutinized in depth. Therefore, this Court is of the considered opinion the benefit of doubt ought to be conferred to the petitioner.
9. By taking into consideration that the petitioner has served in the Bank for more than 22 years in the post of Sweeper, at this stage the petitioner cannot be dismissed from service. Since the benefit of doubt is conferred on the petitioner as stated supra, this Court is of the considered opinion that the petitioner has studied in the said school. This conclusion is based on the subsequent letter issued by the said Shyamala wherein it confirms that the villagers has said that the petitioner has studied and based on that submissions, the said Shyamala has stated that the petitioner has studied in the said School.
10. Therefore, this Court set aside the impugned order of dismissal. The 13/16 https://www.mhc.tn.gov.in/judis W.P.(MD)No.10662 of 2016 respondents are directed to reinstate the petitioner with continuity of service. However, the petitioner is entitled to 50% of backwages from the year 2014 to April 2022. The respondents are directed to implement within a period of four weeks from the date of receipt of a copy of this order.
11. With the above direction, the Writ Petition is disposed of. No costs. Consequently, connected miscellaneous petitions are closed.
14.06.2022 Index : Yes / No Internet : Yes jbr Note:
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate/litigant concerned.14/16
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1. The Appellate Authority/Chief Manager, Enquiry Cell, Industrial Relations Department, Industrial Relations Department, Indian Overseas Bank, Central Office, No.763, Anna Salai, Chennai – 2.
2. The Disciplinary Authority, Senior Manager, Enquiry Cell, I.R.Department, Indian Overseas Bank, Central Office, Chennai.
3. The Branch Manager, Indian Overseas Bank, Kadambakudi Branch, Thanjavur District.15/16
https://www.mhc.tn.gov.in/judis W.P.(MD)No.10662 of 2016 S.SRIMATHY, J jbr Pre-delivery Order made in W.P.(MD)No.10662 of 2016 14.06.2022 16/16 https://www.mhc.tn.gov.in/judis