D.Kumar v. Director of Medical Education

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 18.08.2009CORAM:THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMANWP.NO.11833 Of 2007 D.Kumar, .. PetitionerVs.1.The Director of Medical Education Chennai2.The Dean,The Government Kilpauk MedicalCollege Hospiral,Chennai – 600 010... RespondentsPrayer : Writ Petition is filed under article 226 of the Constitutionof India praying to issuance of Writ of Certiorarified Mandamus tocall for the records relating to the proceedings Nee.Mu.No.2500/Nee2/2/99 dated 04.01.2002 issued by the second respondent and quash thesame and continue.For Petitioner : Mr.G.Ethirajulu,For Respondents : Mrs.C.K.Vishnupriya AGP for Respondents.O R D E RThe O.A.No.150 of 2002 before the Tamil Nadu AdministrativeTribunal is now WP.No.11833 of 2007, before this court.2. Heard, Mr.G.Ethirajulu, counsel for the petitioner and Tmt.C.K.Vishnupriya, AGP for respondents.3. The petitioner was appointed as a substitute worker w.e.f21.08.1985, in the Government Kilpauk Medical College Hospital.Later he was appointed as lascar w.e.f.16.02.1998 in the regularvacancy. As on 16.02.1998, he became over aged. Hence proposal wassent, by the Dean, the second respondent herein, for relaxation ofage to the Director of Medical Education, the first respondentherein, for regularisation of the service of the petitioner. https://hcservices.ecourts.gov.in/hcservices/

4. In these circumstances, the certificate, given by thepetitioner regarding the educational qualification that he studiedupto 8th standard was sent to the educational authorities forverification of its genuineness. The District Educational Officer,Chennai-6, in his letter dated 20.08.1999 stated that thecertificate was not genuine. As per the certificate, the petitionerstudied in the Corporation Middle School, Jones Road, Saidapet,Chennai.5. The petitioner was issued a memo dated 15.09.1999 asking toshow cause as to why he submitted bogus certificate. He submittedan explanation dated 29.09.1999 stating that he studied in theCorporation Middle School, Jaganathapuram, Chetpet, Chennai and theoriginal certificate was destroyed in the flood. Hence he obtained aduplicate through the neighbour as his father is an illiterate personand that happended to be a bogus one. He produced a certificate thathe studied in the Corporation Middle School, Chetpet, Chennai.6. The said certificate was also sent for verification. TheDistrict Educational Officer, in his letter dated 30.01.2000 statedthat this certificate produced by the petitioner, that he studied inthe Corporation Middle School, Chetpet, Chennai is a genuine one.7.It seems that the second respondent, who is the disciplinaryauthority, wrote a letter dated 17.04.2000 to the first respondentseeking clarification whether any action is necessary, since the 2ndcertificate given by the petitioner was found to be genuine. But,the first respondent sent a letter dated 28.07.2000, instructing the2nd respondent to take severe disciplinary action, against thepetitioner, for having produced the bogus certificate.8. It seems, again the 2nd respondent, addressed a letter dated13.09.2000 to the first respondent in this regard, seeking permissionto continue the petitioner in service, as the second certificate wasproved to be a genuine one. However, the first respondent instructedthe 2nd respondent, to take action as per rules, as instructed in hisearlier dated 28.07.2000.9. Left with no alternative, the 2nd respondent issued a chargesheet dated 13.02.2001 under rule 17(b) of the Tamil Nadu CivilService (Disciplinary & Appeal) Rules. The crux of the allegationwas that when he joined service in the year 1985, he produced a boguscertificate. As per the said certificate, he studied in CorporationSchool, Saidapet, Chennai. In the charge sheet, it is also recordedthat the second certificate given by the Petitioner was a genuineone. The petitioner submitted an explanation dated 01.03.2001denying charges. He explained that since his father is an illiterateperson, the first certificate was obtained with the help of aneighbour, as the original certificate was lost in the flood. https://hcservices.ecourts.gov.in/hcservices/ However, the petitioner stated that he produced the genuinecertificate that he studied in the corporation school, Chetpet,Chennai.10. Not satisfied with the explanation, an enquiry was conductedby Dr.V.Shanmugam, Professor and Head of the Department (Orthopedic),Kilpauk Medical College, Chennai.11. The enquiry officer submitted a report dated 16.05.2001 thatthe charges were not established, since the petitioner producedsecond certificate that he studied in Corporation School, Chetpet,Chennai and that the said certificate was proved to be a genuine one.12. Again, the second respondent Disciplinary Authority sent thereport of the enquiry officer to the first respondent and sought theopinion of the first respondent, along with his letter dated11.06.2001. But in reply dated 24.12.2001, the first respondentdirected the second respondent to terminate the service of thepetitioner. In these circumstances, the second respondent passed theimpugned order dated 04.01.2002, dismissing the petitioner fromservice.13. The petitioner filed O.A.No.150/2002 (WP.No.11833/2007) toquash the aforesaid order dated 04.01.2002 and obtained interimorder. By virtue of interim order, he continues in service.14. The counsel for the petitioner makes the followingsubmissions:a) The second respondent, being the DisciplinaryAuthority, ought not to have abdicated its functionand sought the view of the first respondent on theaction to be taken in the matter; the secondrespondent, being the Disciplinary Authority, ought tohave acted independently.b) When the second respondent repeatedly wrote lettersto the first respondent, suggesting no action isnecessary, in view of the 2nd certificate produced bythe petitioner was proved to be a genuine one, thesecond respondent ought not to have initiatedDisciplinary Action, based on the instruction from thefirst respondent.c) When enquiry officer found charges were notestablished, the second respondent ought not to havedirectly passed the dismissal order, in violation ofthe principle of natural justice, without recording afinding differing from the report of the EnquiryOfficer and seeking the views of the petitioner onsuch finding of guilt. https://hcservices.ecourts.gov.in/hcservices/ d) When the enquiry officer held that the charges werenot established, the first respondent is not right, instraight away passing the dismissal order, without atentative disagreement with the findings of theenquiry officer and without hearing the petitioner onsuch tentative disagreement, as per the decision ofthe Hon'ble Apex Court in [State Bank of India andothers Vs. K.P.Narayanan Kutty] 2003 SCC (L&S) 185.e) Since, no educational qualification is required tohold the post of lascar, as per the Rules, the secondrespondent was not justifed in dismissing thepetitioner from service, even if the certificateproduced by the petitioner was not genuine. The petitioner has relied on a Division Bench Judgment dated18.12.2002 of this court in W.A.No.2454 & 2589 of 2002 and a batch ofWrit Petitions in support of his submission.15. On the other hand, the learned Addl. Government Pleader,seeks to sustain the impugned order and contends that the educationalcertificate produced by the petitioner at the first instance was notgenuine one and therefore, the second respondent was justified inpassing the impugned order.16. I have gone through the pleadings and other materials. Theaforesaid narration of the facts is made from the vacate staypetition filed by the second respondent. It is very clear from thevacate stay petition filed by the second respondent, that the secondrespondent was clearly of the opinion that he was not for taking anyaction against the petitioner. He repeatedly wrote letters to thefirst respondent as stated above in detail, in view of the secondcertificate was proved to be a genuine one.17. The learned counsel for petitioner is therefore right in hissubmission that the second respondent, being a Disciplinary Authorityas per the service rules, ought not have acted as per the directionof the first respondent. The second respondent should have actedindependently. It is a different matter, the first respondent as aappellate authority passed an order interfering with the orders ofthe second respondent. On the other hand, the first respondentunjustly interfered in the Disciplinary jurisdiction of the secondrespondent, rendering the entire proceedings vitiated.18. Further, the action of the second respondent, in straightaway passing the order dated 04.11.2002 dismissing the petitionerfrom service is blatantly in violation of the principle of naturaljustice. Since when he differed from the findings of the enquiryofficer, he ought to have recorded a tentative reasons for hisdisagreement and the petitioner should have been heard on such https://hcservices.ecourts.gov.in/hcservices/ reasons, and then only the second respondent should decide aboutpassing or not of the order of dismissal. Not following such aprocedure would vitiate the impugned order, as held by the Hon'bleApex Court in the decision reported in 2003 SCC (L&S) 185 cited bythe petitioner. 19. The judgment of the Division Bench of this court inWA.No.2454 & 2587 of 2002 & a batch referred to above squarely coversthe matter. The impugned order itself notes that the post of lascardoes not require any educational qualification in the followingwords: "ehs; 28/7/2000y;. jkpH;ehL moj;jsg; gzpaplj;jpy; rpw;W}Hpah; gzpaplj;jpw;Fhpafy;tpj;jFjp vGjg; gof;fj; bjhpe;jhy; nghJkhdJ"/20. Hence, all the submissions of the learned counsel forpetitioner are well founded. In the circumstances, the dismissal ofthe petitioner, particularly when he produced the second certificatethat he had studied upto 8th standard in the corporation school,Chetpet and that certificate was found to be a genuine one, wastotally illegal and not justified.21. For all the aforesaid reasons, the Writ Petition is allowedand the impugned order is Quashed. No costs.Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrartshTo1.The Director of Medical Education, Chennai.2.The Dean,The Government Kilpauk MedicalCollege Hospital,Chennai – 600 010.+ 1 CC to Mr.G.Ethirajulu,Advocate,SR.39408+ 1 CC to Government Pleader,SR.39881WP.No.11833 of 2007RJ(CO)EM/22.9