Madras High Court
J. Jayaraman vs The District Elementary Educational ... on 16 June, 2008
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 16..6..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. No. 28643 of 2004 and W.P.M.P. No. 34765 of 2004 and W.V.M.P. No. 476 of 2006 J. Jayaraman .. Petitioner vs. 1. The District Elementary Educational Officer Namakkal 2. The Assistant Elementary Educational Officer Rasipuram, Namakkal 3. The Managing Director Tamil Nadu State Transport Corporation (Salem Division I) Ltd. Ramakrishna Road Salem .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus after calling for the records from the first respondent relating to the order in O.Mu. No. 768/AA4/03 dated 28.3.2003 and quash the same and direct the third respondent to cancel the charge memo No. Ku. No. 223/12566/D3/T STC/2003-04 dated 23.9.2004. For Petitioner : Mr. S. Ayyathurai For Respondents 1&2 : Mrs. E. Ranganayaki For Respondent 3 : Mr. C. Kanakaraj O R D E R
Heard the arguments of the learned counsel for the parties and perused the records.
2. The petitioner was working as a Driver in the third respondent Corporation. He was given an order of dismissal dated 18.8.2003 on the ground that he had submitted a bogus educational certificate for joining the service. As against the said dismissal, he filed an appeal dated 26.9.2003 before the third respondent and the said appeal was dismissed by an order dated 03.10.2003. Thereafter, the petitioner filed W.P. No. 29391 of 2003 seeking to challenge the same. The said writ petition was allowed by this Court vide order dated 06.7.2004 and in Paragraph 5 of the said order, liberty was granted to the Corporation to proceed further, if they are so advised, after furnishing a copy of the report sent by the District Educational Officer, Namakkal, second respondent therein. It was thereafter, an explanation was sought for by a memo dated 23.9.2004 after furnishing a copy of the report sent by the first respondent. It is against this order, the present writ petition has been filed.
3. Pending the writ petition, this Court granted an interim stay on 05.10.2004 and on the strength of the same, the petitioner has been working in service without facing any disciplinary action. The petitioner also sought for an interim injunction in W.P.M.P. No. 34764 of 2004 from proceeding with the charge memo dated 23.9.2004.
4. Such a prayer by the petitioner is wholly unjustified as this Court, in the earlier round of litigation, has specifically given liberty to the Corporation proceed with the enquiry afresh. Any how, this Court, by an order dated 05.10.2004, held that no separate order in the injunction petition was necessary. Therefore, the matter came up for further orders. On 10.3.2008, this Court further ordered to implead the school in which the petitioner had undergone the course and obtained the educational certificate. But the petitioner had not impleaded the said school. In any event, the matter was directed to be posted along with the other batch of writ petitions.
5. In a batch of writ petitions in W.P. No. 27426 of 2003 [C.Krishnan v. District Educational Officer (General), Salem and another], disposed on 13.5.2008, this Court exhaustively dealt with the argument of the workman and the Management and dismissed all the writ petitions and the following paragraphs found in the said judgment may be usefully extracted below:-
Para 8: "What is the procedural requirement of conducting an enquiry in a case of this nature?
Para 8.1.: The learned counsel for the petitioners contended that the educational authorities, before informing the Department, should have heard the petitioners and, therefore, reliance placed upon the communication sent to the Department should be eschewed for being considered for any further action.
Para 8.2.: In this context, the Supreme Court vide its decision in Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi and others [(1991) 2 SCC 716] has held that the principles of natural justice will depend on the nature of inquiry and the peculiar circumstances of each case. The relevant passages found in paragraphs 17, 20 & 21 may be usefully extracted below :-
Para 17:"The students involved at the examination of secondary education are by and large minors but that by itself would not be a factor to hold that the students were unfairly treated at an inquiry conducted during the domestic inquiry. Assistance of an advocate to the delinquent at a domestic enquiry is not a part of the principles of natural justice. It depend on the nature of the inquiry and the peculiar circumstances and facts of a particular case. The regulations and the rules of enquiry specifically excluded the assistance of an advocate at the inquiry. Therefore, the omission to provide the assistance of a counsel at the inquiry is not violative of the principles of natural justice. The show cause notice furnished wealth of material particulars on which the tampering was alleged to be founded and gave the opportunity to each student to submit the explanation and also to adduce evidence, oral or documentary at the inquiry. Each student submitted the explanation denying the allegation...."
Para 20: "Unless the rule expressly or by necessary implications excludes recording of reasons, it is implicit that the principles of natural justice or fair play does require recording of reasons as a part of fair procedure. In an administrative decision, its order/decision itself may not contain reasons. It may not be the requirement of the rules, but at the least, the record should disclose reasons. It may not be like a judgment. But the reasons may be precise. . . . The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order,need not give separate reasons. If the appellate or revisional authority disagrees, the reasons must be contained in the order under challenge."
Para 21: "Thus it is settled law that the reasons are harbinger between the mind of the maker of the order to the controversy in question and the decision or conclusion arrived at. It also excludes the chances to reach arbitrary, whimsical or capricious decision or conclusion. The reasons assure an inbuilt support to the conclusion/decision reached. The order when it affects the right of a citizen or a person, irrespective of the fact, whether it is quasi-judicial or administrative fair play requires recording of germane and relevant precise reasons. The recording of reasons is also an assurance that the authority concerned consciously applied its mind to the facts on record. It also aids the appellate or revisional authority or the supervisory jurisdiction of the High Court under Article 226 or the appellate jurisdiction of this Court under Article 136 to see whether the authority concerned acted fairly and justly to mete out justice to the aggrieved person."
Para 8.3.: Further, in identical circumstances, a Division Bench of this Court in W.P. No. 19063 of 2004 [P. Sekar v. The Registrar, Tamil Nadu Administrative Tribunal, Chennai and others], disposed on 16.02.2008, has held as follows:-
Para 5: "Therefore, the contention of the petitioner that the enquiry report and the order of punishment are based on no evidence is not acceptable. In a departmental enquiry, technical rules of the Evidence Act are not strictly applicable. On behalf of the Department, the letter of the Director of Government Examinations dated 7.11.2001 had been produced indicating that the marks reflected in the mark sheet submitted by the petitioner did not tally with the marks available from the original records. The petitioner himself was examined during the departmental enquiry and the questions put and the answers given are available on record. Except baldly stating that the petitioner has got mark sheet from the school, there is no other acceptable material or detail has been given. It is not even the case of the petitioner that he had actually passed and the report given by the Director of the Government Examinations is incorrect. Since the petitioner had submitted a mark sheet, which was found to be incorrect, it was within the subject knowledge of the petitioner as to the source of obtaining such mark sheet and it was for him to explain such aspect by adducing proper evidence. To that extent, the Tribunal was correct in coming to the conclusion that the charge has been found against him."
Para 9: Whether leniency can be shown by Courts for having submitted fake forged educational certificates at the time of appointment?
Para 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.
Para 9.2.: In Bank of India v. Avinash D. Mandivikar [(2005) 7 SCC 690], the Supreme has held in paragraphs 11 and 12 as follows:
Para 11: ".... Fraud and collusion vitiate even the most solemn proceedings in any civilised 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 (2002 (1) SCC 100), Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education (2003 (8) SCC 311), Ram Chandra Singh case (2003 (8) SCC 319) and Ashok Leyland Ltd. v. State of T.N. (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.
Para 12: "Looked at from any angle the High Courts 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."
Para 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:
Para 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 pensionary 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 void and non est in the eye of the 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 practising fraud. Para 10: Though the case related to a false [caste] certificate, the logic indicated clearly applies to the present case.
Para 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."
Para 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:
Para 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.
Para 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."
Para 9.5.: In Additional General Manager Human Resource, Bharat Heavy Electricals Limited v. Suresh Ramkrishna 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:
Para 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 the 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 had 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 contentions made by the learned counsel for the petitioners that they should be dealt with leniently must be rejected.
Para 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. In view of the above, the writ petition is dismissed. However, there will be no order as to costs. Connected Miscellaneous Petitions are closed.
gri To
1. The District Elementary Educational Officer Namakkal
2. The Assistant Elementary Educational Officer Rasipuram, Namakkal
3. The Managing Director Tamil Nadu State Transport Corporation (Salem Division I) Ltd.
Ramakrishna Road Salem