K. Jeganathan v. Union of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDated 21..4..2008Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. No. 8886 of 1998K. Jeganathan.. Petitionervs.1.Union of IndiaRep. by Director General Border RoadsKashmir HouseDHQPONew Delhi 2.The Chief EngineerProject VartakC/o 99 A.P.O. TezpurAssam District .. RespondentsPetition filed under Article 226 of the Constitution of Indiaseeking for issuance of writ of Certiorarified Mandamus calling forthe records relating to the impugned order dated 20.7.1997 passedby the first respondent in No. 17008/1041/DGBR/48/ETE confirmingthe order in No. 15425/ESD/JN/85/E1 dated 17.3.1997 passed by thesecond respondent and quash the same and direct the respondents toreinstate the petitioner in service with all consequentialbenefits.For Petitioner : Mr. C. SundaravadivelFor Respondents : Mr. M. DhamodharanO R D E RHeard the arguments of the learned counsel for the parties andhave perused the records.2.The petitioner was appointed as a Pioneer in the GREF on21.7.1966. Subsequently, he was promoted as a Store man w.e.f.15.9.1968. Thereafter, through the selection made by theDepartmental promotion Committee (DPC), he was promoted as StoreKeeper (Technical) at the Eastern Store Division, GREF, Tezpur inAssam on 18.7.1983. He was given a charge-memo dated 29.6.1990 https://hcservices.ecourts.gov.in/hcservices/ stating that the H.S.L.C. Examination Certificate produced by himwas not genuine and with that fake certificate, he had unjustlyobtained promotion. He had also violated Rule 3(1)(i) and (iii)of the Central Services Conduct Rules, 1964.3.An enquiry was conducted against the petitioner and hewas given full opportunity to defend himself. He neither gave anywritten statement in the enquiry nor made any oral submission.The defence witness named by him confirmed that the H.S.L.C.Certificate produced by him was not genuine and was not issued bythe Board of Secondary Education, Manipur. The Enquiry Officerfound him guilty and copy of the report was furnished to him.Thereafter, he was imposed with a punishment of dismissal fromservice by the second respondent vide his order dated 17.3.1997.An appeal was filed by the petitioner which was rejected by thefirst respondent vide order dated 20.7.1997. 4.It must be stated in the enquiry, the letter dated30.7.1992 issued by the Headmaster of Bhairodin Hindi High School,Impal, was produced wherein the Department was informed that hisschool was a Hindi Medium School and they would not have admittedany Tamil Medium scholar like the petitioner. Further, the letterdated 20.12.1999 written by the Secretary, Board of SecondaryEducation, Manipur that the petitioner had never appeared at theH.S.L.C. Examination in the year 1984 with Roll No. 7359 was alsoproduced in the enquiry. It was on the strength of thesematerials, the petitioner was found guilty in the departmentalenquiry.5.Learned counsel for the petitioner submitted that theenquiry conducted against him was vitiated and many of thewitnesses, whose names were furnished in the charge-memo, were notsummoned. He also submitted that he has not committed anymisconduct in as much as the certificate produced by him wasgenuine and the statements issued by the Headmaster and theSecretary of Board of H.S.C., Manipur were not proved in the mannerknown to law.In any event, he had submitted that the requirementof an H.S.L.C. Pass is relevant only for the promoted post and,therefore, he must be allowed to continue in service at least inthe lower post for which he was not disqualified. Finally, hesubmitted that having worked for 31 years, leniency must be shownto him.6.With reference to the submission that the enquiry was notfair and the report of the Secretary, H.S.C. Board, Manipur, shouldnot be believed, it is relevant to refer to some decisions of thisCourt and the Supreme Court. https://hcservices.ecourts.gov.in/hcservices/

6.1.In this context, the Supreme Court vide its decision inMaharashtra State Board of Secondary and Higher Secondary Educationv. K.S. Gandhi and others [(1991) 2 SCC 716] has held that theprinciples of natural justice will depend on the nature of inquiryand the peculiar circumstances of each case. The relevant passagefound in paragraph 17 may be usefully extracted below :-Para 17:"..... The show cause notice furnished wealth ofmaterial particulars on which the tampering wasalleged to be founded and gave the opportunity toeach student to submit the explanation and also toadduce evidence, oral or documentary at the inquiry.Each student submitted the explanation denying theallegation...."6.2.Further, in identical circumstances, a Division Bench ofthis Court in W.P. No. 19063 of 2004 [P. Sekar v. The Registrar,Tamil Nadu Administrative Tribunal, Chennai and others], disposedon 16.02.2008, has held as follows:-Para 5:"Therefore, the contention of the petitioner thatthe enquiry report and the order of punishment arebased on no evidence is not acceptable. In adepartmental enquiry, technical rules of theEvidence Act are not strictly applicable. On behalfof the Department, the letter of the Director ofGovernment Examinations dated 7.11.2001 had beenproduced indicating that the marks reflected in themark sheet submitted by the petitioner did not tallywith the marks available from the original records.The petitioner himself was examined during thedepartmental enquiry and the questions put and theanswers given are available on record. Exceptbaldly stating that the petitioner has got marksheet from the school, there is no other acceptablematerial or detail has been given. It is not eventhe case of the petitioner that he had actuallypassed and the report given by the Director of theGovernment Examinations is incorrect. Since thepetitioner had submitted a mark sheet, which wasfound to be incorrect, it was within the subjectknowledge of the petitioner as to the source ofobtaining such mark sheet and it was for him toexplain such aspect by adducing proper evidence. Tothat extent, the Tribunal was correct in coming tothe conclusion that the charge has been foundagainst him." https://hcservices.ecourts.gov.in/hcservices/

7.The Supreme Court in many of its decisions, had answeredthe issue as to whether leniency can be shown by Courts in cases ofpersons who gave fake forged educational certificates at the timeof appointment and securing employment by fraud or deceit. Someof the decisions were also rendered in the context of personsgaining entry with false Community Certificates. 7.1.In Bank of India v. Avinash D. Mandivikar [(2005) 7 SCC690], the Supreme has held in paragraphs 11 and 12 as follows:Para 11:".... Fraud and collusion vitiate even the mostsolemn proceedings in any civilised system ofjurisprudence. This Court in Bhaurao Dagdu Paralkarv. State of Maharashtra dealt with the effect offraud. 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 shownthat a false representation has been made (i)knowingly, or (ii) without belief in its truth,or (iii) recklessly, careless whether it betrue or false.’***13. This aspect of the matter has beenconsidered by this Court in Roshan Deen v.Preeti Lal (2002 (1) SCC 100), Ram Preeti Yadavv. U.P. Board of High School and IntermediateEducation (2003 (8) SCC 311), Ram Chandra Singhcase (2003 (8) SCC 319) and Ashok Leyland Ltd.v. State of T.N. (2004 (3) SCC 1).14. Suppression of a material documentwould also amount to a fraud on the court. (SeeGowrishankar v. Joshi Amba Shankar Family Trust(1996 (3) SCC 1) and S.P. Chengalvaraya Naiducase (1994 (1) SCC 1).)15. ‘Fraud’ is a conduct either by letteror words, which induces the other person orauthority to take a definite determinativestand as a response to the conduct of theformer either by words or letter. Althoughnegligence is not fraud but it can be evidenceon fraud; as observed in Ram Preeti Yadav case.16. In Lazarus Estates Ltd. v. BeasleyLord Denning observed at QB pp. 712 and 713 :(All ER p. 345-C) (1956) 1 QB 702). https://hcservices.ecourts.gov.in/hcservices/ ‘No judgment of a court, no order ofa minister, can be allowed to stand if ithas been obtained by fraud. Fraud unravelseverything.’In the same judgment Lord Parker, L.J.observed that fraud vitiates all transactionsknown to the law of however high a degree ofsolemnity. (p. 722)[19]. These aspects were recentlyhighlighted in State of A.P. v. T. SuryachandraRao (2005 (6) SCC 149).”Therefore, mere delayed reference when thefoundation for the same is alleged fraud does not inany way affect the legality of the reference.Para 12:"Looked at from any angle the High Court’s judgmentholding that Respondent 1 employee was to bereinstated in the same post as originally held isclearly untenable. The order of termination does notsuffer from any infirmity and the High Court shouldnot have interfered with it. By giving protectionfor even a limited period, the result would be thata person who has a legitimate claim shall bedeprived the benefits. On the other hand, a personwho has obtained it by illegitimate means wouldcontinue to enjoy it notwithstanding the clearfinding that he does not even have a shadow of righteven to be considered for appointment."7.2.The Supreme Court in the decision in Ram Saran v. IG ofPolice, CRPF [(2006) 2 SCC 541] observed in paragraphs 9 to 11 asfollows:Para 9: "In R. Vishwanatha Pillai v. State of Kerala it wasobserved as follows: (SCC pp. 116-17, para 19)“19. It was then contended by Shri RanjitKumar, learned Senior Counsel for the appellantthat since the appellant has rendered about 27years of service, the order of dismissal besubstituted by an order of compulsoryretirement or removal from service to protectthe pensionary benefits of the appellant. We donot find any substance in this submission aswell. The rights to salary, pension and otherservice benefits are entirely statutory innature in public service. The appellantobtained the appointment against a post meantfor a reserved candidate by producing a falsecaste certificate and by playing a fraud. His https://hcservices.ecourts.gov.in/hcservices/ appointment to the post was void and non est inthe eye of the law. The right to salary orpension after retirement flows from a valid andlegal appointment. The consequential right ofpension and monetary benefits can be given onlyif the appointment was valid and legal. Suchbenefits cannot be given in a case where theappointment was found to have been obtainedfraudulently and rested on a false castecertificate. A person who entered the serviceby producing a false caste certificate andobtained appointment for the post meant for aScheduled Caste, thus depriving a genuineScheduled Caste candidate of appointment tothat post, does not deserve any sympathy orindulgence of this Court. A person who seeksequity must come with clean hands. He, whocomes to the court with false claims, cannotplead equity nor would the court be justifiedto exercise equity jurisdiction in his favour.A person who seeks equity must act in a fairand equitable manner. Equity jurisdictioncannot be exercised in the case of a person whogot the appointment on the basis of a falsecaste certificate by playing a fraud. Nosympathy and equitable consideration can cometo his rescue. We are of the view that equityor compassion cannot be allowed to bend thearms of law in a case where an individualacquired a status by practising fraud.”Para 10:Though the case related to a false [caste]certificate, the logic indicated clearly applies tothe present case.Para 11:This is a case which does not deserve any leniencyotherwise it would be giving premium to a person whoadmittedly committed forgery. In the instruction (GONo. 29 of 1993), it has been provided that wheneverit is found that a government servant who was notqualified or eligible in terms of the recruitmentrules, etc. for initial recruitment in service orhad furnished false information or produced a falsecertificate in order to secure appointment shouldnot be retained in service. After inquiry asprovided in Rule 14 of the CCS(CCA) Rules, 1965 ifthe charges are proved, the government servantshould be removed or dismissed from service andunder no circumstances any other penalty should beimposed." https://hcservices.ecourts.gov.in/hcservices/

7.3.Further, the Supreme Court in the decision inSuperintendent of Post Offices v. R. Valasina Babu [(2007) 2 SCC335] observed in paragraphs 14 and 15 as follows:Para 14:"The question in regard to the effect of obtainingappointment by producing false certificate came upfor consideration in State of Maharashtra v. RaviPrakash Babulalsing Parmar wherein this Court opinedthat the authorities concerned would havejurisdiction to go into the said question and passan appropriate order. The effect of cancellation ofsuch caste certificate had also been noticed in thelight of a two-Judge Bench decision of this Court inBank of India v. Avinash D. Mandivikar wherein itwas held that if the employee concerned had playedfraud in obtaining an appointment, he should not beallowed to get the benefits thereof, as thefoundation of appointment collapses.Para 15:In this view of the matter, we are of the opinionthat in a case of this nature, it might not havebeen necessary to initiate any disciplinaryproceeding against the respondent."7.4.In Additional General Manager – Human Resource, BharatHeavy Electricals Limited v. Suresh Ramkrishna Burde [(2007) 5SCC 336] once again reiterated the principles laid down in R.Viswanatha Pillai v. State of Kerala [(2007) 5 SCC 336] and thefollowing 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 adecision rendered by a Bench of three learnedJudges. The employee in the aforesaid case had gotan appointment in the year 1973 against a postreserved for Scheduled Caste. On complaint, thematter was enquired into and the Scrutiny Committeevide its order dated 18-11-1995 held that he did notbelong to Scheduled Caste and the challenge raisedto the said order was rejected by the High Court andthe special leave petition filed against the saidorder was also dismissed by this Court. He thenfiled a petition before the Administrative Tribunalpraying for a direction not to terminate hisservices which was allowed, but the order wasreversed by the High Court in a writ petition. Theemployee then filed an appeal in this Court. After adetailed consideration of the matter this Courtdismissed the appeal and para 15 of the Report,which is relevant for the decision of the presentcase, is reproduced below: (SCC p. 115) https://hcservices.ecourts.gov.in/hcservices/ “15. This apart, the appellant obtainedthe appointment in the service on the basisthat he belonged to a Scheduled Castecommunity. When it was found by the ScrutinyCommittee that he did not belong to theScheduled Caste community, then the very basisof his appointment was taken away. Hisappointment was no appointment in the eye ofthe law. He cannot claim a right to the post ashe had usurped the post meant for a reservedcandidate by playing a fraud and producing afalse caste certificate. Unless the appellantcan lay a claim to the post on the basis of hisappointment he cannot claim the constitutionalguarantee given under Article 311 of theConstitution. As he had obtained theappointment on the basis of a false castecertificate he cannot be considered to be aperson who holds a post within the meaning ofArticle 311 of the Constitution of India.Finding recorded by the Scrutiny Committee thatthe appellant got the appointment on the basisof a false caste certificate has become final.The position, therefore, is that the appellanthas usurped the post which should have gone toa member of the Scheduled Castes. In view ofthe finding recorded by the Scrutiny Committeeand upheld up to this Court, he hasdisqualified himself to hold the post. Theappointment was void from its inception.”In the light of the above discussion, the contentions made by thelearned counsel for the petitioner that the petitioner should bedealt with leniently must be rejected.8.On the question that there is no misconduct, it isnecessary to refer to the judgment of the Supreme Court in Union ofIndia v. J. Ahmed [1979 (2) SCC 286]. The following passagesfound in paragraphs 9 and 11 of the judgment may be usefullyextracted:Para 9:"The words “act or omission” contemplated by Rule 4of the Discipline and Appeal Rules have to beunderstood in the context of the All India Services(Conduct) Rules, 1954 (“Conduct Rules” for short).The Government has prescribed by Conduct Rules acode of conduct for the members of All IndiaServices. Rule 3 is of a general nature whichprovides that every member of the service shall atall times maintain absolute integrity and devotionto duty. Lack of integrity, if proved, wouldundoubtedly entail penalty.... If Rule 3 were the https://hcservices.ecourts.gov.in/hcservices/ only rule in the Conduct Rules it would have beenrather difficult to ascertain what constitutesmisconduct in a given situation. But Rules 4 to 18of the Conduct Rules prescribe code of conduct formembers of service and it can be safely stated thatan act or omission contrary to or in breach ofprescribed rules of conduct would constitutemisconduct for disciplinary proceedings. This codeof conduct being not exhaustive it would not beprudent to say that only that act or omission wouldconstitute misconduct for the purpose of Disciplineand Appeal Rules which is contrary to the variousprovisions in the Conduct Rules. The inhibitions inthe Conduct Rules clearly provide that an act oromission contrary thereto so as to run counter tothe expected code of conduct would certainlyconstitute misconduct. Some other act or omissionmay as well constitute misconduct...." [Emphasis added]Para 11:"Code of conduct as set out in the Conduct Rulesclearly indicates the conduct expected of a memberof the service. It would follow that conduct whichis blameworthy for the government servant in thecontext of Conduct Rules would be misconduct. If aservant conducts himself in a way inconsistent withdue and faithful discharge of his duty in service,it is misconduct (see Pierce v. Foster1). Adisregard of an essential condition of the contractof service may constitute misconduct [see Laws v.London Chronicle (Indicator Newspapers)]. This viewwas adopted in Shardaprasad Onkarprasad Tiwari v.Divisional Superintendent, Central Railway, NagpurDivision, Nagpur, and Satubha K. Vaghela v. MoosaRaza. The High Court has noted the definition ofmisconduct in Stroud’s Judicial Dictionary whichruns as under:“Misconduct means, misconduct arising fromill motive; acts of negligence, errors ofjudgment, or innocent mistake, do notconstitute such misconduct.”9.The petitioner was charge-sheeted for the violation ofRule 3 of the C.C.S. Conduct Rules and the lack of integrity on hispart is clearly proved. The submission that the petitioner mustbe allowed to continue in the lower post of Storeman is only statedto be rejected for the reasons already set out. https://hcservices.ecourts.gov.in/hcservices/

10.In the light of the above, the writ petition fails andaccordingly, will stand dismissed. No costs. Gri Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To1.The Director General Border Roads Union of IndiaKashmir HouseDHQPONew Delhi 2.The Chief EngineerProject VartakC/o 99 A.P.O. TezpurAssam District 1 cc to Mr.M.Ajmal Khan, Advocate, SR.224961 cc to Mr.M.Dhamodharan, Advocate, SR.22303bv (co)dv/30.5.W.P. No. 8886 of 1998