B. Gnanavel v. The Principal, Government Women's Arts College, Salem

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 11.3.2010C O R A M :THE HONOURABLE MR. JUSTICE K. CHANDRUW.P.No.3581 of 2007(O.A.No.2176 of 2001)B.Gnanavel .. Petitioner -vs-The Principal,Government Women's Arts College,Salem-8. .. RespondentPRAYER : Petition filed under Article 226 of the Constitution of Indiapraying for the issuance of a writ of certiorarified mandamus to call forthe records of the respondent made in proceedings Na.Ka.No.114/A2/98,dated 29.9.2000 and to quash the same and consequently direct therespondents to extend all benefits both service and monetary includingbackwages.For petitioner :: Mr.L.Chandrakumar For respondent :: Mr.K.H.Ravikumar, Government Advocate *****O R D E RThe petitioner filed O.A.No.2176 of 2001 before the Tamil NaduAdministrative Tribunal seeking to challenge the order, dated 25.9.2000passed by the respondent removing him from service. By the impugned order,the petitioner was removed from service pursuant to a charge memo issuedunder Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal)Rules. Pending the Original Application, the petitioner did not have thebenefit of any interim order. Pursuant to the abolition of the Tribunal,the matter stood transferred to this Court and re-numbered as W.P.No.3581of 2007.2. The petitioner was appointed on compassionate grounds on accountof the death of his father Late Balakrishnan, who was working as a Marker.The said Balakrishnan passed away on 12.8.1994. Subsequent to hisappointment, on 06.4.1998, the petitioner was brought under the time scaleof pay with effect from 04.12.1997 and his salary was fixed at the scaleof pay of Rs.750-945. The post of Marker was created by the Government in https://hcservices.ecourts.gov.in/hcservices/ G.O.Ms.No.602, Higher Education Department, dated 04.12.1997. At thattime, it is claimed that the petitioner gave a school certificate statingthat he had completed VII Standard. Therefore, a charge memo was issued tothe petitioner on the ground that the Record Sheet given by him was forgedand the petitioner had only completed V Standard, whereas he has given thecertificate as if he had undergone studies upto VII Standard. 3. The petitioner denied the charges vide his explanation, dated20.12.1999. Thereafter, an enquiry was conducted on 24.4.2000 by thesubsequent Principal of the College. It was on the basis of the saidenquiry, the petitioner was removed from service. In the order ofremoval, it was also stated that he has corrected the EducationalCertificate twice and he was not appointed through Employment Exchange. Hewas not sponsored through the Employment Exchange for getting theappointment and that while he was in the playground during 1999 in thesports room, one girl had lost her gold bangle and she was suspecting thepetitioner. It is not clear as to how these issues can come up in thefinal order when that was not the subject matter of the charge memo.Further, the petitioner was appointed on compassionate grounds. Therefore,sponsorship from Employment Exchange also need not be a relevantcriterion. The only question was whether he had made corrections in theEducational Certificate issued by the school.4. Despite notice being served on the respondent, they have not filedany counter affidavit so far. When the matter came up, a brief history wasgiven by the respondent, dated 09.3.2010. In that it was stated that thepetitioner was suspended on 09.5.2000 after calling for an explanation andthe final enquiry was conducted against him and the Headmaster of AndersonSchool was also present in the enquiry and it was stated that only the VStandard Record Sheet was the original. Neither the minutes of the enquiryproceedings nor a report made by the Principal is produced. On thecontrary, the final order itself contains the nature of evidence and thefinal decision taken by the respondent as well as the punishment. 5. Mr.L.Chandrakumar, learned counsel for the petitioner states thatthe enquiry allegedly conducted by the respondent does not satisfy therequirement under Article 311(2) of the Constitution. Once a charge memois issued and the petitioner has replied, then proper enquiry should havebeen conducted and the petitioner is not aware of the nature of evidencerecorded including the provisional decision arrived at by the disciplinaryauthority. The learned counsel also produced the latest decision of theSupreme Court in Kamal Nayan Mishra -vs- State of Madhya Pradesh andothers reported in (2010) 2 SCC 169. In more or less similarcircumstances, the Supreme Court held that even in cases where aGovernment Servant gives a wrong information in his attestation form andvouchsafed the information provided by him under the form is correct andsubsequently it was found to be a false information, even then, notermination can be made without notice. Even if the attestation formcontains a clause that no further notice will be issued, that by itselfwill not take away the guarantee given under Article 311(2) of the https://hcservices.ecourts.gov.in/hcservices/ Constitution. In paragraphs 21 to 24 of the said decision, the SupremeCourt has held as follows:-''Para 21.: No term in the attestation form, nor any consentgiven by a government servant, can take away theconstitutional safeguard provided to a government servantunder Article 311 of the Constitution.Para 22. : A seven-Judge Bench fo this Court held in Moti RamDeka -vs- North East Frontier Railway (AIR 1964 SC 600) asfollows while negativing a contention that a person whoenters service by executing a contract containing a rulecontrary to Article 311, with open eyes, cannot bepermitted to challenge the validity of the said rule or thecontract: (AIR p.611, paras 31-32)''31. ... In our opinion, this approach may berelevant in dealing with purely commercial casesgoverned by rules of contract; but it is whollyinappropriate in dealing with a case where thecontract or the Rule is alleged to violate aconstitutional guarantee afforded by Article 311(2);...32. Let us then test this argument by referenceto the provisions of Article 311(1). Article 311(1)provides that no person to whom the said Articleapplies shall be dismissed or removed by anauthority subordinate to that by which he wasappointed. Can it be suggested that the RailwayAdministration can enter into a contract with itsemployees by which authority to dismiss or removethe employees can be delegated to persons other thanthose contemplated by Article 311(1)? The answer tothis question is obviously in the negative, and thesame answer must be given to the contention that asa result of the contract which embodies the impugnedRules, the termination of the railway servant'sservices would not attract the provisions of Article311(2) though, in law, it amounts to removal."Para 23.: We also find from an examination of the terms of theattestation form that termination without notice orinquiry was contemplated only in the context of furnishingfalse information in and around the time of theappointment. Note (1) of the preamble warns that:''the furnishing of false information or suppressionof any factual information in the attestation formwould be a disqualification and is likely to renderthe candidate unfit for employment" https://hcservices.ecourts.gov.in/hcservices/ Similarly, the certificate at the end of the attestationform states that:''I am not aware of any circumstances which mightimpair my fitness for employment under theGovernment. I agree that if the above information isfound false or incomplete in any material respect,the appointing authority will have a right toterminate my services without giving notice orshowing cause".Be that as it may.Para 24. : The termination of the appellant without an inquiry orhearing was illegal and invalid. In the normal course, wewould have set aside the termination and directedreinstatement with consequential benefits, reservingliberty to the employer to initiate disciplinaryproceedings. But the peculiar facts of this case require usto adopt a slightly different approach to do completejustice between the parties."6. In the light of the above, the writ petition stands allowed. Theimpugned order stands set aside. No costs. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar jsToThe Principal,Government Women's Arts College,Salem-8. + 1 C.C. To Mr. L. Chandrakumar Advocate SR.NO.16827+ 1 C.C. To Government Pleader SR.NO.17051 W.P.No.3581 of 2007(O.A.No.2176 of 2001) NSM[CO]