C.Nallammal v. The District Elementary Education Officer

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 31.01.2012CORAM:THE HON’BLE MR. JUSTICE K.CHANDRUW.P.Nos.36871 of 2004,19808 of 2008WPMP.No.44252 of 2004 and M.P.No.1 of 2008C.Nallammal ... Petitioner inboth WPs Vs.1.The District Elementary Education Officer, Dharmapuri District at Dharmapuri.2.The District Elementary Education Officer, Salem District at Salem.3.The Assistant Elementary Education Officer, Veerapandi Union,Veerapandi Salem District....Respondents inboth WPsW.P.No.36871 of 2004 filed under Article 226 of the Constitution ofIndia praying for a Writ of Certiorari, calling for the recordsrelating to the proceedings in Na.Ka.No.4578/A2/04 dated 27.06.2004of the second respondent and consequential order inNa.Ka.NO.3996/A2/01 dated 18.07.2004 of the first respondent andquash the same.W.P.No.19808 of 2008 filed under Article 226 of the Constitution ofIndia praying for a Writ of Certiorarified mandamus, to call forthe records of the impugned termination order issued by the secondrespondent in Na.Ka.No.4578/A2/2004 dated 31.08.2007 herein andquash the same as illegal and consequently direct the respondentsto reinstate the petitioner into service with all monitorybenefits.For Petitioner : Mr.K.Thennan inW.P.No.36871/2004Mr.K.Gandhi Kumar inW.P.No.19808/2008For Respondents : Mr.M.Dig Vijaya Pandian,AGP https://hcservices.ecourts.gov.in/hcservices/ C O M M ON O R D E RBoth the writ petitions were filed by one and the same person.2. W.P.No.36871 of 2004 was filed challenging the ordercancelling her transfer to Salem District and reverting her back toDharmapuri District, in view of the pendency of the proceedingsagainst her with reference to the criminal case registered againsther for producing false educational certificate at the time whenshe joined as Secondary Grade Teacher during the year 2001.Thereafter, the petitioner was issued with a consequential orderdated 18.07.2004 by the District Elementary Educational Officer,Dharmapuri. 3. That writ petition was admitted on 22.12.2004. Pending thewrit petition, this Court granted an interim stay. The respondentshave not filed any counter affidavit in the writ petition. 4. Even while the writ petition was pending, a criminal casewas registered under Sections 468, 471 and 472 of IPC by theInspector of Police, Crime Branch, Dharmapuri. The said case afterinvestigation was tried before the Judicial Magistrate I,Dharmapuri in C.C.Case No.193 of 2004. The petitioner wasacquitted by the learned Judicial Magistrate on 05.02.2008 bygiving benefit of doubt. But however due to the pendency of thecriminal case, by an order dated 31.08.2007, the petitioner wasterminated from service. It was stated in the said order thatcharge memo under Rule 17(b) of Tamil Nadu Civil Services(Discipline and Appeal) Rules was issued to the petitioner on17.05.2005. The Charges levelled against the petitioner was thatshe had obtained employment as a Secondary Grade Teacher by givinga fake Teacher Training Certificate. 5. The basis for framing the charges was based on a letterwritten by the Secretary of the Government Examination Department,Chennai -6, wherein it was stated that the petitioner's Certificateand the marks produced were false. On the basis of the report andafter considering the petitioner's explanation dated 12.10.2005,the petitioner was removed from service. The petitioner's requestto withhold the disciplinary action pending criminal trial wasnot considered by the Department. 6. Subsequent to the acquittal in the Criminal Court, thepetitioner sent a representation dated 05.05.2008, wherein she alsomentioned about her subsequent acquittal by the Criminal Court.Since the petitioner did not get any reply, she filed the secondwrit petition being W.P.No.19808 of 2008. https://hcservices.ecourts.gov.in/hcservices/

7. That writ petition was admitted on 07.11.2008. Pending thewrit petition, though the petitioner sought for an interimdirection for payment of total salary, only notice was ordered inthe said petition. On notice from this Court, the third respondenthas filed a counter affidavit dated 16.10.2008 justifying thedismissal order. 8. With reference to the nature of enquiry conducted againstthe petitioner, in Page 6 of the counter affidavit, it was averredas follows:-...In the meantime the District ElementaryEducational Officer, Dharmapuri sent a copy of hermark sheet for verification of genuineness to theDirector of Government Examination, Chennai. Afterverification of the petitioner's mark sheet showingReg.No.992002 it ws found that Part II English markdiffers from the records maintained in the office ofthe Director of Government Examination Chennai, asreported by the Director of Government ExaminationChennai Proceedings in Rc.No.52894/V4-2/2001, dated08.05.2002."9. On the question of acquittal of the petitioner by theCriminal Court, it was stated in the counter affidavit that it wasonly by giving benefit of doubt and the petitioner had not provedthat the certificate given by her was genuine. 10. In the present case, after the issuance of the charge memounder Rule 17(b), the respondents have not conducted any enquirythough the rule envisages a proper enquiry to be conducted unlessthe aggrieved individual seeks for only a personal hearing andwaives a regular oral enquiry. The petitioner has also been workingin the school from 26.02.2001. Therefore, dismissing her after aperiod of six years without holding any proper enquiry especiallywhen she has protection under Article 311(2) of the Constitution,cannot be countenanced by this Court. 11. In the affidavit filed in support of the writ petition,the ground raised by the petitioner that in view of her subsequentacquittal, the department should reconsider her termination may notstand to reason as the Supreme Court vide its judgment in SouthernRailway Officers Association and another v. Union of India andothers reported in (2009) 9 SCC 24 has held that any subsequentacquittal cannot be a ground for interfering with the punishmentimposed by the disciplinary authority. 12. The other contention raised by the petitioner that therewas no proper enquiry is well founded. The Supreme Court vide itsjudgment in Rajasthan State Road Transport Corporation and another https://hcservices.ecourts.gov.in/hcservices/ v. Bal Mukund Bairwa reported in (2009) 4 SCC 299 has held that anemployee charged with grave misconduct is entitled for fair hearingaccording to the principles of natural justice and the provisionsof statutory Rules. 13. Similarly in the judgment in Kamal Nayan Mishra v. Stateof Madhya Pradesh and others reported in (2010) 2 SCC 169, theSupreme Court has held that a confirmed Government servant cannotbe dismissed without following the procedure established underArticle 309 of the Constitution. Similar was the view taken by theSupreme court in Satwati Deswal v. State of Haryana and othersreported in (2010) 1 SCC 126, wherein, it was held that a majorpenalty cannot be imposed without following due procedure.14. Under the said circumstances, the impugned order dated31.08.2007 in W.P.No.19808 of 2008, dismissing the petitioner ishereby set aside. The respondents are at liberty to conduct aproper enquiry with reference to the alleged false educationalcertificate produced by the petitioner after giving dueopportunity. But until the completion of the enquiry, this Courtis not willing to direct the petitioner to be restored to service.But however, she will be eligible for subsistence allowance fromthe date of this order till the date of completion of thedisciplinary proceedings. The question of back wages will beconsidered by the Department after the disciplinary action isdecided and the petitioner succeeds in establishing that she hasnot given any bogus certificate. 15. W.P.No.19808 of 2008 stands allowed with the abovedirections. However, there shall be no order as to costs.Consequently, connected miscellaneous petition is closed.16. In so far as W.P.No.36871 of 2004 is concerned, since theimpugned order was passed based upon the criminal complaint andthat the criminal case had ended in acquittal and that thedismissal order is also set aside in W.P.No.19808 of 2008 today,the order reverting her back to Dharmapuri will also becomeinvalid. Since she is already enjoying a stay order, it isunnecessary to order that writ petition. It is suffice to stateuntil the completion of enquiry, the petitioner will be retained inSalem District. Hence, the writ petition is dismissed asinfructuous. No costs. Consequently, connected miscellaneouspetition is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.svki https://hcservices.ecourts.gov.in/hcservices/ To1.The District Elementary Education Officer, Dharmapuri District at Dharmapuri.2.The District Elementary Education Officer, Salem District at Salem.3.The Assistant Elementary Education Officer, Veerapandi Union,Veerapandi Salem District.1 cc to Mr.K. Thennan, Advocate, Sr. 62971 cc to Mr.K. Gandhikumar, Advocate, Sr. 60671 cc to Government Pleader, Sr. 6239W.P.Nos.36871 of 2004 and19808 of 2008DM (CO)kk 20/2