High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 31-8-2007CORAMTHE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMARW.P.No.18507 of 2006(O.A.No.507 of 1995)K. Arumugham...Petitioner [Applicant].Vs1.The Director of Employment & Training,Chepauk, Madras - 5.2.The Assistant Director/Enquiry Officer,Directorate of Employment & Training,Chepauk, Madras - 5.3.The State of Tamil Nadu,rep.by the Secretary to Government,Labour & Employment Department,Fort St.George,Madras - 600 009....Respondents [Respondents].This writ petition came to be numbered under Article 226 ofConstitution of India, by way of transfer of O.A.No.507 of 1995 from thefile of the Tamil Nadu Administrative Tribunal with the amended prayer tocall for the records on the file of the 3rd respondent in connection withthe order passed by him in G.O.(D)No.1334 dated 8.11.1995 and also on thefile of the first respondent in connection with the order passed by him inhis proceedings Se.Mu.A.No.O.Na.2/72820/92 dated 3.8.1994 and quash thesame and direct the respondent to reinstate the petitioner in service withall monetary and service benefits by a writ of certiorarified mandamus ofany other appropriate writ.For Petitioner : Mr.R.SingaravelanFor Respondents :Mr.V.ManoharanGovernment Advocate https://hcservices.ecourts.gov.in/hcservices/ O R D E RPrayer in the writ petition is to quash G.O.(D)No.1334 dated 8.11.1995on the file of the third respondent and the proceedings of the firstrespondent dated 3.8.1994 and to direct the respondents to reinstate thepetitioner in service with all monetary and service benefits.2.The brief facts necessary for disposal of the writ petition areas follows:(a)The petitioner was selected and appointed as Junior Assistantthrough the Tamil Nadu Public Service Commission (hereinafter referred asTNPSC) and he joined in service on 27.1.1966. He was promoted to the postof Assistant on 12.7.1975 and subsequently promoted as Junior EmploymentOfficer on 24.10.1984.(b)While working as Junior Employment Officer in the Sub-EmploymentOffice at Aalangayam, Vellore District, he was placed under suspension byorder dated 30.3.1992 and subsequently a charge memo was issued on18.8.1992. One of the charge levelled against the petitioner was that hehad created documents by committing forgery in favour of M/s.Srinivasan,Visakan and Raju, as if they are seniors in the Employment registration,who actually never registered their names in the said employment office.Other similar charges were also framed in the said charge memo.(c)The suspension order was challenged by the petitioner inO.A.No.3004 of 1993 and the same was dismissed by the AdministrativeTribunal with a direction to complete the enquiry in respect of the chargememo and pass final orders within a period of three months and if on anyaccount the enquiry could not be completed, the petitioner was directed tobe reinstated in service by revoking the order of suspension, withoutprejudice to the disciplinary proceeding. For the said charge memo,petitioner submitted his explanation on 20.8.1993 and denied the charges.(d)An Enquiry Officer was appointed to conduct enquiry and aftercompletion of the enquiry, the Ennquiry Officer submitted his reportholding all the charges as proved. Petitioner participated in the enquiryand based on the Enquiry Officer's report, the final order was passedwhereby the petitioner was compulsorily retired from service by orderdated 3.8.1994.(e)The said order was challenged before the Government by filing anappeal and the appeal was also dismissed by the Government by passing G.O.(D)No.1334, dated 8.11.1995 and therefore the said orders of compulsoryretirement, confirmed in appeal is challenged in the O.A.507 of 1995,which is transferred to this Court and numbered as the above writ petitionwith a prayer to quash the said orders and for consequential reinstatementof the petitioner in service with monetary benefits.3.The original application was filed in the year 1994 and at thattime, the petitioner was aged 53 years. Now the petitioner is aged about66 years and therefore the prayer for reinstatement cannot be granted atthis stage. The learned counsel for the petitioner submitted that if theorder of compulsory retirement is quashed the petitioner will be in a https://hcservices.ecourts.gov.in/hcservices/ position to get salary and other benefits till the date of his retirementand also revision of pension after retirement.4.The respondents filed counter affidavit stating that the fourcharges framed under Rule 17(b) of the Tamil Nadu Civil Services(Discipline and Appeal) Rules against the petitioner being serious innature, which were also found proved in the enquiry, based on which thepunishment was imposed, that too taking lenient view of the matter,considering the long number of years of service of the petitioner, he wascompulsorily retired. The appellate authority also confirmed the saidorder and therefore the order passed by the respondents are just andproper and no interference is called for.5.The learned counsel for the petitioner at the time of argumentssubmitted that even though the petitioner was selected and appointedthrough TNPSC, the charge having been framed under Rule 17(b) of the TamilNadu Civil Services (Discipline and Appeal) Rules, the view of the TNPSChas not been obtained by the Disciplinary Authority before passing theorder of compulsorily retirement and the appellate authority, beforepassing the orders in the appeal sought the view of the TNPSC andtherefore there is procedural violation under Rule 17(b) of the Tamil NaduCivil Services (Discipline and Appeal) Rules.6.The learned counsel appearing for the respondents on the otherhand submitted that the alleged procedural violation has not vitiated theproceedings since the view of the TNPSC was obtained by the appellateauthority before passing orders in the appeal confirming the punishmentsand therefore there is substantial compliance of Rule 17(b) and thecharges being serious in nature, a lenient punishment was imposed and noindulgence can be shown to the petitioner.7.I have considered the rival submissions made by the learnedcounsel appearing for the petitioner as well as respondents.8.The Enquiry Officer based on the oral and documentary evidenceheld that the charges are proved and gave the following findings withregard to charge Nos.1 to 4."7.As regards the first charge, theRegn.No.3766/91 given to the candidates ThiruG.Srinivasan actually belonged to a candidate by nameThiru R.Suresh as per records. The applicant hadaccepted during the enquiry that it was his signaturein the list which was sent to the employer. He hadcontended that the records were put up to him by hisAssistant for selection and he made the selectionbelieving his Assistant. However, as Head of theOffice the applicant had written the basis of selectionand also signed the list sent to the employer and wastherefore fully responsible for the irregularity. The https://hcservices.ecourts.gov.in/hcservices/ Enquiry Officer had clearly proved the complicitybetween the applicant and the Assistant concerned inthe preparation of the bogus card in this case and alsothe nomination of the candidate against the vacancy.8.Regarding charge (2), the applicant hadadmitted during the enquiry that he had attested theentries put up by the Assistant to the effect that theindex card of the candidate Thiru A.Visakan was alreadytransferred to the District Employment Office, Adyarand a duplicate card had been prepared and submitted.The applicant had also attested the entries in thepreparation of duplicate cards register which he hadaccepted during the enquiry. The applicant had alsoattested the entries relating to the candidate made inthe record of registration. In fact, the candidateThiru Visakan had not registered at all in theEmployment Office. The Enquiry Officer has reportedthat the applicant had not denied having prepared thebogus index cards or having made entries in theconnected records during the enquiry. It was thereforeheld that the bogus index card was prepared jointly bythe applicant and the Assistant concerned and neitherof them denied the irregularity during the enquiry.9.Regarding charge (3) the candidate, ThiruRaju was allotted Regn.No.5742/90-T.2399/86 withseniority from 30.8.82 at the Employment Officer,Vellore without any basis as per entry made in theRecord of Registration. This entry was made in therecord of registration belonging to the former DistrictEmployment Officer (Technical Personnel), Vellore andthis register was maintained at the Sub EmploymentOffice, Alangayam by the applicant. These entries weremade in the handwriting of the Assistant and attestedby the applicant in this case. On actual verification,it was found that the Regn.No.T/2399/86 actuallybelonged to another candidate by name Thiru A.Settu whohad registered as a candidate at the DistrictEmployment Office (Technical Personnel), Vellore. Oneother factor which was brought to light is that whileall the entries in the register were typed by them, theentries regarding this candidate alone were made in thehandwriting of the Assistant. The applicant hadaccepted during the enquiry that the attestation ofthese entries was made by him. It was alreadyestablished during the enquiry that the entries inrespect of the candidate Thiru Raju were bogus and thatthe applicant had attested the entries in the record ofregistration. It was proved that the applicant hadmisused his powers for the purpose of preparing a bogus https://hcservices.ecourts.gov.in/hcservices/ registration card and therefore this charges was heldproved.10.As regards the charge (4), the charge wasbased on the revealition made in charges (1) to (3).Having committed the lapses pointed out in charges (1)to (3) the applicant had clearly violated the Rule 20of the Tamilnadu Government Servants Conduct Rules.Having been an author to the preparation of bogus indexcards and sponsoring a candidate against the vacancy ofclassifying him as a physically handicapped candidate,the applicant had clearly violated the Rule 20 of theGovernment Servants Conduct Rules."The said findings are seriously disputed by the learned counsel for theappellants and the main contention raised was, before imposing the orderof punishment, the view of the TNPSC has not been obtained as requiredunder Rule 17(b). The petitioner being Assistant Employment Officer, andthe charges being forgery and sponsoring candidates whose name are notregistered with the Employment Exchange, are very serious and the saidcharges are also proved as stated above in the Enquiry.9.The Disciplinary Authority considered the charges and thefindings given by the Enquiry Officer and came to the conclusion that forthe proved charges, the petitioner deserves to be dismissed from service.However, considering that the said dismissal will affect the family of thepetitioner, on humanitarian consideration lesser punishment viz.,Compulsory retirement from service was imposed. It is also stated thatthe petitioner is entitled to get full pension and gratuity under Rule 39of the Tamil Nadu Pension Rules, 1978. The said order is also confirmedby the Government through G.O.(D)No.1334 Labour and Employment Departmentdated 8.11.1995. The Disciplinary Authority on appreciation of evidencecame to the factual finding that the charges 1 to 4 are proved and thecharges proved are creation of false records and the same is liable forpunishment under the Indian Penal Code. The said findings are findings offact as extracted in paragraph 8 of this judgment. There is no perversityin the said findings. Hence the same are confirmed.10.The procedural violation viz., not consulting with the TNPSCbefore imposing the order of punishment was also taken care of by theappellate authority and the views of the TNPSC was sought for. The TNPSCthrough its reply dated 31.7.1995 addressed to the Government expressedits view as follows:"Thiru K.Arumugam (appellant), formerly JuniorEmployment Officer, has been inflicted with thepunishment of compulsory retirement from service by theDirector of Employment and Training following theprocedures laid down under rule 17(b) of Tamil NaduCivil Services (Classification, Control and Appeal)Rules. The delinquent, when he was working as JuniorEmployment Officer at Alangayam, had manipulated the https://hcservices.ecourts.gov.in/hcservices/ office records to remove certain names and insertcertain names for no valid reasons. As an example oneThiru G.Srinivasan was sponsored by the delinquentofficer in the physically handicapped seniority withoutany identity card or Medical Certificate. ThiruSrinivasan had deposed before the District EmploymentOfficer, that he was tempted by a tall bespectacledperson, for his name to be sponsored to an interview onpayment of Rs.5000/-. Mr.Srinivasan as per thedirection approached a fat individual at the instanceof the delinquent officer and got his signature in thecard. Investigations have confirmed that ThiruG.Srinivasan was not a registrant of a sub employmentoffice at Alangayam. The Registration Number indicatedagainst Thiru G.Srinivasan belong to Thiru R.Suresh.The concerned letter was not typed by the Typist of theSub-employment office but got typed from outside. Whenthe delinquent officer was asked as to how the name ofSrinivasan was sponsored, he said that the note wasprepared by Thiru Mohandoss, Assistant and hemechanically signed it. In a similar way, the boguscards were prepared for Mr.Visagan and there werealterations in the Register which indicate the malafide intentions and on the same line the cards werealso prepared to one Thiru S.Raju whose name was alsonot registered in the office. All these have been donewith the connivance of the other office employees likeThiruvalargal Kumar and Mohandoss. On Enquiry, theappellant said that he trusted the Assistants whoprepared the note and just he signed the note. AGovernment servant who claims to have put in 28 yearsof experience, cannot claim that he relied solely onhis Assistants for the sponsorship and he mechanicallysigned them. This can only speak of irresponsibility.In short he is guilty of introducing three names (1)Srinivasan (2) Visagan, and (3) Raju in the registerwithout proper documents to supplement.The Enquiry Officer had held that all the chargesas proved and for the proven charges, he wascompulsorily retired on 9.8.1994. In the meanwhile,the appellant had filed an original Application beforethe Tamil Nadu Administrative Tribunal and on theOriginal Application the Tribunal has directed theGovernment to pass the final orders before the hearingon 31.7.1995. For the proven charges which are seriousin nature with malafide intention, the punishment ofcompulsory retirement with a facility to draw fullcompensation pension and gratuity as per rule 39 ofTamil Nadu Pension Rules cannot be considered https://hcservices.ecourts.gov.in/hcservices/ excessive. Therefore the Commission feels that thecompulsory retirement of the delinquent officer from9.8.1994 Forenoon is just and proper as this involved amatter of moral turpitude." The said view expressed by the TNPSC was considered by the thirdrespondent Government, who dismissed the appeal considering the lenientview already taken by the disciplinary authority and rejected the appealas it is devoid of merits. In the order of the appellate authority it isspecifically found that TNPSC in its views extracted above, has clearlystated that for the proven charges, the punishment of compulsoryretirement is fully justified. The said view is reiterated in the orderof the appellate authority. Therefore the appellate authority cannot beblamed for not passing any detailed order and it is in fact an order withreasons and in compliance with Rule 23 of the Tamil Nadu Civil Services(Discipline and appeal) Rules. When the views of the TNPSC becomes partand parcel of the order of the appellate authority, further detailedreasons need not be given by the appellate authority.11.The contention of the learned counsel for the petitioner that thedisciplinary authority has not obtained the view of the TNPSC andtherefore the punishment imposed is vitiated cannot be accepted in view ofthe fact that obtaining views of the TNPSC is only procedural matter.Even though the Disciplinary Authority has not obtained the views of theTNPSC before ordering punishment, the appellant authority, beforeconfirming the order of punishment, obtained the views of the TNPSC andconcurred with the punishment imposed by the Disciplinary Authority.Hence substantial compliance of Rule 17(b) is made out and therefore I amof the view that there is no statutory violation, affecting the rights ofthe petitioner and there is also no denial of justice.12.The Supreme Court in the decision reported in (2006) 4 SCC 348(A.Sudhakar v. Postmaster General, Hyderabad and another), consideredsimilar issue and in paragraph 26 held as follows:"26.It is well settled that those principles ofnatural justice are not embodied principles. Therequirements contained in Article 311(2) of theConstitution in view of the decision of this Court inKhem Chand v. Union of India (AIR 1958 SC 300) are heldto be as a part of the principle of natural justice.The courts in the aforementioned situation are requiredto see as to whether non-observance of any of the saidprinciples in a given case has resulted in denial ofjustice. If there had been substantial compliance withthe procedure, the court may not interfere. (See Stateof U.P. v. Om Prakash Gupta ((1969) 3 SCC 775) andKuldeep Singh v. Commr. of Police ((1999) 2 SCC 10)."13.The charges being very serious, which are proved in the enquiryconducted, the Disciplinary Authority exercised his discretion and imposed https://hcservices.ecourts.gov.in/hcservices/ the punishment of compulsory retirement against the petitioner with rightto get full pension and gratuity. The appellate authority also confirmedthe same. The said punishment cannot be found disproportionate to thegravity of the delinquency.There is no merit in the writ petition and the same is dismissed. Nocosts.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.vrTo1.The Director of Employment & Training,Chepauk,Madras - 5.2.The Assistant Director/Enquiry Officer,Directorate of Employment & Training,Chepauk, Madras - 5.3.The Secretary to Government,Labour & Employment Department,Fort St.George, Madras - 600 009.+ 1 CC To Mr. R.Singaravelan, Advocate SR NO.54453W.P.No.18507 of 2006 bv[co]gp/6.9.