Madras High Court
R.Venkatesan vs The Divsional Engineer on 19 April, 2012
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.04.2012
CORAM
THE HONOURABLE MR. JUSTICE VINOD K.SHARMA
W.P.No.266 of 2007
(O.A.No.7818 of 2001)
R.Venkatesan ... Petitioner
Vs
1 The Divsional Engineer,
Highways and Rural Works Dept.,
Villupuram, Villupuram District.
2 The Assistant Divisional Engineer,
Highways and Rural Works Dept.,
Villupuram, Villupuram District. ... Respondents
PRAYER: This petition came to be numbered by transfer of O.A.No. 7818 of 2001 from the file of the Tamil Nadu Administrative Tribunal, for issuance of a writ in the nature of Certiorari, to quash the order passed by the first respondent vide Se.Mu.Ka.No.3867/2001/Aaaa.4 dated 15.10.2001 and direct the respondents to reinstate the petitioner in service as Road worker with all consequential benefits.
For Petitioner : Mr.R.Venkataramani
For Respondent-1 : Mr.R.Bala Ramesh, G.A.
*****
O R D E R
The petitioner passed V Std. and after verification of his original certificate, was appointed as Road Worker (Salai Paniyalar) by the respondent on 13.04.1998 on a consolidated pay of Rs.1000/- (Rupees one thousand only). The petitioner successfully completed training and given appointment in the time scale of Rs.2550/- (Rupees two thousand five hundred and fifty only) on 19.04.1999.
2 The petitioner served with the impugned order dated 15.10.2001 terminating his service on the ground that V Std. Pass certificate submitted by the petitioner was bogus.
3 The translated copy of the impugned order reads as under:
"PROCEEDINGS OF THE DIVISIONAL ENGINEER (H & R) VILLUPURAM Present: Thiru G.Ramalingam Se.Mu.Ka.No.3867/2001/E4 Dated 15.10.2011 Sub: Work Establishment funds salary Highways and Rural Works New trainee appointment -Bogus educational certificate produced to get appointment Removal from service ordered reg.
Ref: 1 Proceedings of Divisional Engineer (H&R) , Villupuram in Se.Mu.Na.37629/97/ A3 dated 14.11.1997.
2 Proceedings of Asst. Divisional Engineer in Na.Ka.No.423/98-99/A2 dated 12.10.2001 3 Proceedings of the District Elementary Eduational Officer in Na.Ka.No.4611/A3/ 2001 dated 28.08.2001.
***** As per the proceedings in the reference first cited, Thiru R.Venkatesan, son of Renganathan was selected and appointed as Road Worker and allotted to the office of Asst. Divisional Engineer (H&R), Villupuram and working now.
As per the proceedings in the reference second cited, the certificate of Thiru R.Venkatesan have been sent to District Elementary Educational Officer, Villupuram for genuineness. They were returned to the reference third cited by the District Elementary Educational officer, Villupuram stating that the certificate is bogus certificate. Therefore, the trainee Thiru R.Venkatesan got appointment by producing bogus certificate and thereby cheated the Government. Therefore, the Road worker Thiru R.Venkatesan is removed from service by this order.
Further, the Assistant Divisional Engineer (H&R) is requested to take appropriate criminal action against Thiru R.Venkatesan who cheated the Government and got appointment by producing false certificate.
Sd/-xxxxxxxxxxxx Divisional Engineer(H&R) Villupuram."
4 The learned counsel for the petitioner challenged the impugned order, on the ground that though order is stigmatic in nature, no enquiry was held before passing the impugned order.
5 In support of this contention, the learned counsel for the petitioner placed reliance on the judgment of the Hon'ble Supreme Court in Dipti Prakash Banerjee vs. Satyendranath Bose National Centre for Basic Sciences, Calcutta & others (1999(3) SCC 60) wherein the Hon'ble Supreme Court was pleased to lay down as under:
"35 The above decision is, in our view, clear authority for the proposition that the material which amounts to stigma need not be contained in the order of termination of the probationer but might be contained in any document referred to in the termination order or in its Annexures. Obviously such a document could be asked for or called for by any future employer of the probationer. In such a case, the order of termination would stand vitiated on the ground that no regular inquiry was conducted. We shall presently consider whether, on the facts of the case before us, the documents referred to in the impugned order contain any stigma.
36 It was in this context argued for the Respondent that the employer in the present case had given ample opportunity to the employee by giving him warnings, asking him to improve and even extended his probation twice and this was not a case of unfairness and this Court should not interfere. It is true that where the employee had been given suitable warnings, requested to improve, or where he was given a long rope by way of extension of probation, this Court has said that the termination orders cannot be held to be punitive. Hindustan Paper Corporation vs. Purendu Chakraborty [1996 (11) SCC 404] See in this connection, Oil & Natural Gas Commission vs. Md. S.Iskendu [1980 (3) SCC 428], Unit Trust of India vs. T.Bijaya Kumar Dipti Prakash Banerjee vs Satvendra Nath Bose National ... on 10 February, 1999 Indian Kanoon - http://indiankanoon.org/doc/1727116/ 9 [1992 (5) Serv.L.R. 855 (SC)], Principal, Institute of P.G.Medical Education & Research, Pondichery vs. S.Andel & others [1995 Suppl. (4) SCC 609] and a labour case Oswal Pressure Die Carting Industry vs. Presiding Officer [1998 (3) SCC 225]. But in all these cases, the orders were simple orders of termination which did not contain any words amounting to stigma. In case we come to the conclusion that there is stigma in the impugned order, we cannot ignore the effect it will have on the probationer's future whatever be earlier opportunities granted by the respondent organisation to the appellant to improve.
37 On this point, therefore, we hold that the words amounting to `stigma' need not be contained in the order of termination but may also be contained in an order or proceeding referred to in the order of termination or in an annexure thereto and would vitiate the order of termination. Point 3 is decided accordingly."
6 The judgment of the Hon'ble Supreme Court was followed by this Court in W.P.No.15555 of 2011 decided on 15.03.2012 (Anand Lenin Vethanayagam vs The Registrar, Pondicherry University, Pondicherry).
7 The learned Government Advocate, opposed the writ petition on the ground that fraud vitiates everything and once appointment of the petitioner was outcome of fraud of submitting bogus certificate, the petitioner cannot claim any right to continue in the service, nor he is entitled to show cause notice.
VINOD K.SHARMA, J.
vaan 8 There can be no dispute with the contention that a person who gets appointment by submitting bogus certificate, cannot claim to continue in service. But, at the same time, where the order is passed on specific allegation of misconduct, it is pre-requisite to hold an enquiry to prove the charge that the employee is guilty of fraud. The impugned order having been passed in violation of law laid down by the Hon'ble Supreme Court, cannot be sustained.
9 Consequently, the writ petition is allowed. The impugned order is set aside. The case is remitted back to the respondent to proceed in accordance with law against the petitioner, to terminate his services, by holding an enquiry to prove the charge of fraud.
No costs.
19.04.2012 Index: Yes/No Internet:Yes/No vaan To 1 The Divsional Engineer, Highways and Rural Works Dept., Villupuram, Villupuram District.
2 The Assistant Divisional Engineer, Highways and Rural Works Dept., Villupuram, Villupuram District. W.P.No.266 of 2007 (O.A.No.7818 of 2001)