Madras High Court
C. Krishnan vs The District Educational Officer ... on 13 May, 2008
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 13..5..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. Nos. 27426 and 35596 of 2003; W.P. Nos. 19958, 29028, 29029, 29550, 29551, 30231 to 30233, 35796 and 39735 of 2004; W.P. Nos. 4904 and 19610 of 2005; and W.P. Nos. 1456 and 9992 of 2007 and W.P.M.P. No. 43252 of 2003 in W.P. No. 35596 of 2003, W.P.M.P. Nos. 24025 and 24026 of 2004 and W.V.M.P. No. 1676 of 2005 in W.P. No. 19958 of 2004, W.P. Nos. 35260 and 35261 of 2004 and W.V.M.P. Nos. 141 of 2005 and 478 of 2006 in W.P. No. 29028 of 2004, W.P.M.P. Nos. 35263 and 35264 of 2004 and W.V.M.P. No. 477 of 2006 in W.P. No. 29029 of 2004, W.P.M.P. Nos. 35879 and 35880, 35882 and 35883 of 2004 and W.V.M.P. Nos.2409 and 2410 of 2004 in W.P. Nos. 29550 and 29551 respectively, W.P.M.P. Nos. 36699, 36701 and 36703 of 2004 in W.P. Nos. 30231 to 30233 of 2004 respectively, W.P.M.P. Nos. 47368 and 47369 of 2004 in W.P. No. 39735 of 2004, W.P.M.P. No. 5437 of 2005 in W.P. No. 4904 of 2005, W.P.M.P. No. 21265 of 2005 in W.P. No. 19610 of 2005 and M.P. Nos. 2 and 3 of 2007 in W.P. No. 1456 of 2007 and M.P. Nos. 2 to 4 of 2007 in W.P. No. 9992 of 2007 W.P. No. 27426 of 2003: C. Krishnan .. Petitioner vs. 1. The District Educational Officer (General) Cherry Road Salem 2. The General Manager 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 calling for the records relating to the order in Ref. No. Na. Ka. No. 01162/B4/03 dated 16.7.2003 and direct the second respondent to cancel the charge memo in Ref. K.V. 412 / 19804 / D3 / TSTC / 2003 dated 12.8.2003. For Petitioner : Mr. S. Ayyathurai For Respondent 1 : Mr. Pa. Kadirvel, GA For Respondent 2 : Mr. C. Kanakaraj C O M M O N O R D E R
Heard the arguments of M/s. S. Ayyathurai, M.M. Sundaresh, V.Chandrasekar, S. Girija, V. Thiruppathi, learned counsels appearing for the petitioners, Mr. Pa. Kadirvel, learned Government Advocate representing the officials of the Department of Education, Mr. C. Kanakaraj, learned counsel appearing for the respondent Transport Corporations and M/s Sarvabhauman Associates appearing for the second respondent in W.P. No. 1456 of 2007 and have perused the records.
1.1. The arguments were heard in respect of these writ petitions on three different dates. Since the subject matter of all the writ petitions are similar, they are disposed of by a common order.
2. Backdrop:-
2.1. All the 16 writ petitioners are working as Drivers in the State Transport Corporation. They have joined the services on various dates and many of them were confirmed in their services and have also put in more than ten years of service.
2.2. The respondent State Transport Corporation is a Government company registered under Section 617 of the Companies Act. The service conditions of the workmen employed in these transport Undertakings are governed by the certified Standing Orders framed in respect of each of the Corporation. However, due to re-organisation, many of the District level Corporations have been disbanded and merged with zonal Corporations. The Board of Directors of the erstwhile Corporations have framed Service Rules and they have also prescribed, by Board Resolution, the minimum educational qualification for various posts under the Corporations. For the post of Driver, it is essential that an aspirant should have passed VIII Standard with Heavy Vehicle Licence and a Public Driver Badge.
2.3. The petitioners herein submitted certificates regarding their educational qualifications either at the time of joining service or at the time of confirmation of their service. In most of the cases, they have registered their names with the Employment Exchanges and their names were also sponsored for employment with the respondent Corporation. It is not clear as to why the Corporations did not verify the educational certificates produced by the petitioners soon after their joining in the duty. May be after sometime, on some complaints, the educational certificates produced by the petitioners were forwarded to the appropriate Education Department officials, depending upon the certificate issuing authority. Almost in 15 cases, the petitioners have produced certificates from Schools in Salem District. Therefore, they were sent for verification either by the District Educational Officer, Salem or Assistant Educational Officer of the respective units.
2.4. In W.P. 39735 of 2004, it was sent for verification by the District Educational Officer, Villupuram as the school in which the petitioner in that writ petition (G. Kennedy) claims to have studied in Kallakurichi. In W.P. 19610 of 2005, as the petitioner (P.Elango) had produced a S.S.L.C. Certificate got as a private candidate, it was sent for verification by the Secretary of the Board of Government Examinations.
2.5. In all these cases, the concerned authorities have informed the respondent Corporations that the School Certificates and the Record Sheets produced by them were bogus. They were also informed that the petitioners neither studied in those schools nor they were promoted to the standards in which they had made claims.
2.6. Immediately upon receipt of these communications, the Corporations issued show cause notices on the basis of the reports obtained from the respective Schools / Department officials and called upon the petitioners to show cause as to why action should not be taken against them for having obtained employment on production of false certificates. In some cases, the petitioners demanded proof for the allegation. When a final show cause notice was given without conducting enquiries, some of them approached this Court with the following writ petitions.
3. Previous Litigations:-
3.1. S. Govindaraju (Petitioner in W.P. No. 29028 of 2004) filed W.P. No. 29389 of 2003 and S. Selvam (Petitioner in W.P. No.29029 of 2004) filed W.P. No. 29390 of 2003 challenging the show cause notices. This Court, by an order dated 08.9.2003, set aside the said order and gave liberty to proceed in accordance with law.
3.2. M. Srinivasan (Petitioner in W.P. No. 29550 of 2004) filed W.P. No. 22618 of 2004 and A. Thangavel (Petitioner in W.P. No. 29551 of 2004) filed W.P. No. 22617 of 2004 challenging the dismissal orders passed against them. Both the writ petitions were dismissed by this Court vide order dated 06.8.2004 and they were directed to file appeals before the Managing Director as per the Service Rules. After filing the appeals, which were also dismissed, the two petitioners have once again moved this Court with the present writ petitions and have also obtained interim orders against the termination and are continuing in service.
3.3. Rajagopal (Petitioner in W.P. No. 30231 of 2004) earlier filed a writ petition being W.P. No. 25346 of 2003; Mr.A.M.Ammasi (Petitioner in W.P. No. 30232 of 2004) filed W.P. No. 25344 of 2003 and K.Kannan (Petitioner in W.P. No. 30233 of 2004) filed W.P. No. 25345 of 2003 challenging the show cause notices given to them. This Court, by an order dated 29.7.2004, allowed the writ petitions and permitted the Transport Corporation to proceed with the enquiry in accordance with law. Subsequently, the Corporation issued charge-memos dated 24.9.2004 against the three petitioners and they have once again come forward with the present writ petitions and have obtained stay order.
3.4. Mr. C. Palanisamy (W.P. No. 4904 of 2005) has earlier filed the following three writ petitions:-
(a) W.P. No. 16976 of 2003 [Disposed on 23.6.2003]
(b) W.P. No. 23543 of 2003 [Disposed on 29.10.2003]
(c) W.P. No. 14749 of 2004 [Disposed on 25.01.2005] After all these exercises, when he was given a fresh enquiry notice dated 29.01.2005, he has, once again, filed the present writ petition and had also obtained an interim stay order.
3.5. Mr. C. Manickam (W.P. No. 35796 of 2004) was dismissed from service by an order dated 18.8.2003. As against the said dismissal, he had raised an industrial dispute under Section 2 A (2) of the Industrial Disputes Act, 1947 [for short, 'I.D. Act']. Since the conciliation proceedings failed, he had moved the Labour Court with a claim petition and his dispute was taken on file by the Labour Court, Salem, as I.D. No. 34 of 2004 and it is pending adjudication. Notwithstanding the said fact, he has come forward to file the present writ petition and made an unsuccessful attempt to get an interim order.
3.6. Mr. P. Palanivel (W.P. No. 9992 of 2007) was dismissed from service by an order dated 13.11.2003. Since an industrial dispute was pending conciliation before the Deputy Commissioner of Labour (Conciliation), approval for his dismissal was sought for by the respondent Transport Corporation by filing petition under Section 33(2)(b) of the I.D. Act. The said Conciliation Officer, by his order dated 05.8.2005, granted approval in A.P. No. 465 of 2003. Thereafter, the petitioner raised an industrial dispute before the Labour Officer, Salem and that conciliation ended in failure. On the strength of the same, instead of filing a claim statement before the Labour Court, the petitioner has come before this Court challenging the dismissal order dated 13.11.2003 in the year 2007 and has also obtained an interim stay.
4. Contentions raised by the petitioners:-
The learned counsels for the petitioners contended that there was an enormous delay in framing the charges and hence, the charge-memos to be quashed. They also submitted that filing writ petitions at the stage of show cause notices is maintainable as the basis for such notices were on the basis of unsubstantiated allegations. They contended that there is no minimum educational qualification prescribed under the Standing Orders and hence, the proceedings are vitiated. The further contention was that no elaborate enquiry was conducted and the material produced are not proved in the manner known to law. They also sought for lenient treatment in case the enquiry goes against them. They also submitted that there is no need to avail other alternate remedies as they are not efficacious. It is, therefore, necessary to deal with each of the issues raised herein.
5. Whether the proceedings are liable to be quashed on grounds of delay?
5.1. Learned counsel for the petitioners contended that there was a long delay in initiating disciplinary action and, therefore, on that ground, the show cause notices / charge-memos should be quashed.
5.2. In the decision reported in 1995 (3) SCC 134 [Deputy Registrar, Co-operative Societies, Faizabad v. Sachindra Nath Pandey and others], the Supreme Court held that the delay in framing charge cannot be a ground to interfere with the charge memo and the relevant passage found in paragraph 7 of the said judgment is extracted below:
Para 7: "On a perusal of charges, we find that the charges are very serious. We are, therefore, not inclined to close the matter only on the ground that about 16 years have elapsed since the date of commencement of disciplinary proceedings, more particularly when the appellant alone cannot be held responsible for this delay...."
5.3. Further, in the decision reported in 1996 (3) SCC 157 [Secretary to Government, Prohibition and Excise Department v. L.Srinivasan], the Supreme Court has held that the charge cannot be quashed only on the ground of delay and any finding recorded by the Court will prejudice the enquiry. The Supreme Court has also pulled up the member of the Administrative Tribunal for having interfered with the charge memo as if the Tribunal is the appellate authority. The following passage found in paragraph 3 of the said judgment makes the position very clear.
Para 3: "We are informed that charge-sheet was laid for prosecution for the offences of embezzlement and fabrication of false records etc. and that the offences and the trial of the case is pending. The Tribunal had set aside the departmental enquiry and quashed the charge on the ground of delay in initiation of disciplinary proceedings. In the nature of the charges, it would take a long time to detect embezzlement and fabrication of false records which should be done in secrecy. It is not necessary to go into the merits and record any finding on the charge levelled against the charged officer since any finding recorded by this Court would gravely prejudice the case of the parties at the enquiry and also at the trial. Therefore, we desist from expressing any opinion on merit or recording any of the contentions raised by the counsel on either side. Suffice it to state that the Administrative Tribunal has committed grossest error in its exercise of the judicial review. The member of the administrative Tribunal appears to have no knowledge of the jurisprudence of the service law and exercised power as if he is an appellate forum dehors the limitation of judicial review. This is one such instance where a member had exceeded his power of judicial review in quashing the suspension order and charges even at the threshold. We are coming across such orders frequently putting heavy pressure on this Court to examine each case in detail. It is high time that it is remedied."
[Emphasis added] 5.4. Very recently, the Supreme Court in its decision reported in 2007 AIR SCW 1639 [Government of A.P. And others v. V. Appala Swamy] has held the parameters of interfering with a charge sheet on the ground of delay in paragraphs 10, 12, 13, which read as follows:
Para 10: "So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard and fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are:
(1) Where by reason of the delay, the employer condoned the lapses on the part of the employee.
(2) Where the delay cause prejudice to the employee.
Such a case of prejudice, however, is to be made out by the employee before the Inquiry Officer."
Para 12: "Learned counsel appearing on behalf of the respondent, however, placed strong reliance on a decision of this Court in M.V.Bijlani vs. Union of India & Others (2006 (5) SCC 88). That case was decided on its peculiar facts. In that case, even the basic material on which a departmental proceedings could be initiated was absent. The departmental proceedings was initiated after 6 years and continued for period of 7 years. In that fact situation, it was held that the appellant therein was prejudiced.
Para 13: "Bijlani (Supra), therefore, is not an authority and, in fact, as would appear from the decision in P.D.Agarwal (Supra), for the proposition that only on the ground of delay the entire proceedings can be quashed without considering the other relevant factors therefor."
Therefore, in the light of the above, the contentions of the learned counsel for the petitioners must fail.
6. Whether a writ at the stage of show cause notice or charge-memo is maintainable:-
6.1. Learned counsel for the petitioners contended that in as much as the respondent Corporation had relied upon the report received from the authorities of the Education Department and blindly based their final conclusions upon the said report, the show cause notices should be quashed. When a show cause notice suffers from material irregularity, the Courts have power to quash such an order and, therefore, this Court should come to the rescue of the petitioners.
6.2. They also relied upon an unreported decision of a Division Bench of this Court in W.A. No. 3713 of 2003, disposed on 11.11.2003. In that case, the Division Bench quashed the order passed by the education departmental authorities on the ground that no opportunity was given to the aggrieved person before cancelling the mark list. In the present case, it was not a case of cancellation and it was merely a communication informing the respondent Corporation about the true nature of the certificates produced by the petitioners. It is pursuant to the same, the Corporations have issued show cause notices / charge-memos. In some cases, they have appointed Enquiry Officers also. In some other cases, final dismissal orders have been issued.
6.3. In the present batch of cases itself, the Court in the earlier round of litigations (set out in paragraph 4 above) granted liberty to the Corporation to proceed with the enquiries. The conduct of the petitioners in once again coming with a second round of litigation even at the stage of show cause notice is highly reprehensible and it is nothing but a raid on the Court.
6.4. Further, the Supreme Court in its decision reported in 1987 (2) SCC 179 [State of U.P. v. Brahm Datt Sharma and another] dealt with the power of the Court in dealing with a charge memo at the show-cause stage and the following passage found in paragraph 9 will make the position clear.
Para 9: "The High Court was not justified in quashing the show cause notice. When a show cause notice is issued to a government servant under a statutory provision calling upon him to show cause, ordinarily the government servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford opportunity of hearing to the government servant and once cause is shown it is open to the Government to consider the matter in the light of the facts and submissions placed by the government servant and only thereafter a final decision in the matter could be taken. Interference by the court before that stage would be premature, the High Court in our opinion ought not have interfered with the show cause notice."
6.5. The Supreme Court vide its judgment reported in (2004) 3 SCC 440 [Special Director and another Vs. Mohd. Ghulam Ghouse and another], in paragraph 5 observed as follows:
Para 5: "This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of parties. Unless the High Court is satisfied that the show-cause notice was totally non-est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioners should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the court. Further, when the court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is not accorded to the writ petitioner even at the threshold by the interim protection granted."
6.6. Further, the Supreme Court in the judgment reported in (2006) 12 Supreme Court Cases 28 [Union of India and another vs. Kunisetty Satyanarayana] in paragraphs 13 to 16 held as follows:
Para 13: "It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge-sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh (1996) 1 SCC 327, Special Director v. Mohd. Ghulam Ghouse (2004) 3 SCC 440, Ulagappa v. Divisional Commissioner Mysore (2001) 10 SCC 639, State of U.P. V. Brahm Datt Sharma (1987) 2 SCC 179, etc. Para 14: The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is; that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
Para 15: Writ jurisdiction is discretionary jurisdiction and hence such a discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet.
Para 16: No doubt, in some very rate and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."
Therefore, the writ petitions must fail on the ground that the petitioners have come forward to challenge their disciplinary actions at the stage of show cause notice.
7. Whether the minimum educational qualification prescribed is authorised by law?
7.1. The learned counsel for the petitioners thereafter contended that having passed in the VIII Standard is not a qualification prescribed under the Standing Orders and undoubtedly, all the petitioners are in possession of a Driving Licence which alone is an essential qualification for a Driver. They have also gained sufficient experience over the last few years.
7.2. It is not for this Court to go into as to what is the essential qualification. In fact, it is for the employer to prescribe qualification for any post for which they require candidates. In the present case, the Board of Directors have made Service Rules and also Board Resolutions prescribing VIII Standard as the minimum qualification. Even when requisitions were sent to the respective Employment Exchanges, these qualifications were indicated and it is only because the petitioners have claimed to have such qualification, their names were sponsored. It is only because of that educational qualification, the petitioners have allegedly produced bogus educational certificates.
7.3. The Supreme Court vide its decision in J. Ranga Swamy v. Government of Andhra Pradesh [1990 (1) SCC 288] has held that it is not for the Court to consider the relevance of qualifications prescribed for various posts.
7.4. In fact, more or less, in an identical circumstance, the Supreme Court had dealt with the case of recruitment of Drivers by the State of Punjab vide its decision in Bashir Ahmed v. State of Punjab [(1996) 8 SCC 697]. The relevant passage found in paragraph 3 of the said judgment may be usefully extracted:
Para 3: "The learned counsel for the appellants has strenuously contended that this Court in B.N. Saxena v. New Delhi Municipal Committee read down the rule holding that after the initial appointments experience gained for a considerable length of time is itself a qualification for promotion and, therefore, requirement of further qualification was bad in law. He also relied upon another judgment in State of U.P. v. J.P. Chaurasia. Relying thereon, it is contended that the rule prescribing educational qualifications as one of the qualifications for direct recruitment must be read down. So read down, since the appellants have the necessary experience, it must be construed to be a qualification for recruitment. The view taken by the High Court and recruitment authority is bad in law. We find no force in that contention. It is seen that for direct recruitment as a driver, the rules prescribe two qualifications, namely, light vehicle driving licence and knowledge of Punjabi language up to middle standard. The Rules also prescribe promotion of 10% drivers from the lower rank of cleaner. Therein, it is provided that apart from the qualifications prescribed for direct recruitment, the cleaner also must have an experience of a minimum period of 4 years. We are not concerned with regard to the promotion from the cadre of cleaners to the post of driver within the quota of 10%. Therefore, the question of reading down the rule does not arise. We are concerned with the direct recruitment only. The Government in the Rule have prescribed driving licence and also knowledge of Punjabi language up to middle standard to be the qualifications. Therefore, anyone who possesses those qualifications has to be considered for recruitment. Since, admittedly, the appellants are not fulfilling the said criteria, the dismissal of the writ petition cannot be said to be illegal."
[Emphasis added] 7.5. Therefore, it is too late for the petitioners to contend that there was no qualification of producing a certificate for having passed in VIII Standard prescribed under the Standing Orders or that they have put in number of years of service and hence, they should be allowed to continue in service.
8. What is the procedural requirement of conducting an enquiry in a case of this nature?
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.
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."
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."
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 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."
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."
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."
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.
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.
11. What relief?
11.1. In W.P. Nos. 35796 of 2004 and W.P. No. 9992 of 2007, the petitioners have already raised an industrial dispute with reference to their non-employment. Therefore, they must pursue that remedy and both the writ petitions seeking for relief in parallel forums cannot be countenanced and they are liable to be dismissed.
11.2. In respect of other writ petitions, as set out already, the petitioners cannot seek to challenge the charge memo / enquiry notice / second show cause notice and it is for them to give satisfactory explanation and participate in the enquiry so as to prove their innocence. Hence, those writ petitions are also liable to be dismissed.
11.3. In that view of the matter, all the writ petitions are dismissed. The petitioners cannot have any interim relief when the final relief itself is denied to them. In cases of termination, there cannot be any relief pending final adjudication. Hence, the connected Miscellaneous Petitions are also dismissed. However, there will be no order as to costs.
13..5..2008 Index : Yes Internet : Yes gri To The District Educational Officer (General) Cherry Road Salem K.CHANDRU, J.
gri Pre-Delivery Common Order in W.P. No. 27426 of 2003, etc. batch Delivered on
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