J. Jayaraman v. The District Elementary Educational Officer Namakkal

IN THE HIGH COURT OF JUDICATURE AT MADRASDated 16..6..2008Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. No. 28643 of 2004andW.P.M.P. No. 34765 of 2004 and W.V.M.P. No. 476 of 2006J. Jayaraman.. Petitionervs.1.The District Elementary Educational OfficerNamakkal2.The Assistant Elementary Educational OfficerRasipuram, Namakkal3.The Managing DirectorTamil Nadu State Transport Corporation(Salem Division I) Ltd.Ramakrishna RoadSalem .. RespondentsPetition filed under Article 226 of the Constitution of Indiaseeking for issuance of writ of Certiorarified Mandamus aftercalling for the records from the first respondent relating to theorder in O.Mu. No. 768/AA4/03 dated 28.3.2003 and quash the sameand direct the third respondent to cancel the charge memo No. Ku.No. 223/12566/D3/T STC/2003-04 dated 23.9.2004.For Petitioner : Mr. S. Ayyathurai For Respondents 1&2 : Mrs. E. RanganayakiFor Respondent 3 : Mr. C. KanakarajO R D E RHeard the arguments of the learned counsel for the parties andperused the records. https://hcservices.ecourts.gov.in/hcservices/

2.The petitioner was working as a Driver in the thirdrespondent Corporation. He was given an order of dismissal dated18.8.2003 on the ground that he had submitted a bogus educationalcertificate for joining the service. As against the saiddismissal, he filed an appeal dated 26.9.2003 before the thirdrespondent and the said appeal was dismissed by an order dated03.10.2003. Thereafter, the petitioner filed W.P. No. 29391 of2003 seeking to challenge the same. The said writ petition wasallowed by this Court vide order dated 06.7.2004 and in Paragraph 5of the said order, liberty was granted to the Corporation toproceed further, if they are so advised, after furnishing a copy ofthe report sent by the District Educational Officer, Namakkal,second respondent therein. It was thereafter, an explanation wassought for by a memo dated 23.9.2004 after furnishing a copy of thereport sent by the first respondent. It is against this order,the present writ petition has been filed.3.Pending the writ petition, this Court granted an interimstay on 05.10.2004 and on the strength of the same, the petitionerhas been working in service without facing any disciplinary action.The petitioner also sought for an interim injunction in W.P.M.P.No. 34764 of 2004 from proceeding with the charge memo dated23.9.2004. 4.Such a prayer by the petitioner is wholly unjustified asthis Court, in the earlier round of litigation, has specificallygiven liberty to the Corporation proceed with the enquiry afresh.Any how, this Court, by an order dated 05.10.2004, held that noseparate order in the injunction petition was necessary.Therefore, the matter came up for further orders. On 10.3.2008,this Court further ordered to implead the school in which thepetitioner had undergone the course and obtained the educationalcertificate. But the petitioner had not impleaded the saidschool. In any event, the matter was directed to be posted alongwith the other batch of writ petitions. 5.In a batch of writ petitions in W.P. No. 27426 of 2003[C.Krishnan v. District Educational Officer (General), Salem andanother], disposed on 13.5.2008, this Court exhaustively dealtwith the argument of the workman and the Management and dismissedall the writ petitions and the following paragraphs found in thesaid judgment may be usefully extracted below:-Para 8:"What is the procedural requirement of conducting anenquiry in a case of this nature?Para 8.1.:The learned counsel for the petitionerscontended that the educational authorities, beforeinforming the Department, should have heard thepetitioners and, therefore, reliance placed upon thecommunication sent to the Department should be https://hcservices.ecourts.gov.in/hcservices/ eschewed for being considered for any furtheraction.Para 8.2.: In this context, the Supreme Court vide itsdecision in Maharashtra State Board of Secondary andHigher Secondary Education v. K.S. Gandhi andothers [(1991) 2 SCC 716] has held that theprinciples of natural justice will depend on thenature of inquiry and the peculiar circumstances ofeach case. The relevant passages found inparagraphs 17, 20 & 21 may be usefully extractedbelow :-Para 17:"The students involved at the examination ofsecondary education are by and large minors butthat by itself would not be a factor to holdthat the students were unfairly treated at aninquiry conducted during the domestic inquiry.Assistance of an advocate to the delinquent ata domestic enquiry is not a part of theprinciples of natural justice. It depend onthe nature of the inquiry and the peculiarcircumstances and facts of a particular case.The regulations and the rules of enquiryspecifically excluded the assistance of anadvocate at the inquiry. Therefore, theomission to provide the assistance of a counselat the inquiry is not violative of theprinciples of natural justice. The show causenotice furnished wealth of material particularson which the tampering was alleged to befounded and gave the opportunity to eachstudent to submit the explanation and also toadduce evidence, oral or documentary at theinquiry. Each student submitted theexplanation denying the allegation...."Para 20:"Unless the rule expressly or by necessaryimplications excludes recording of reasons, itis implicit that the principles of naturaljustice or fair play does require recording ofreasons as a part of fair procedure. In anadministrative decision, its order/decisionitself may not contain reasons. It may not bethe requirement of the rules, but at the least,the record should disclose reasons. It may notbe like a judgment. But the reasons may beprecise. . . . The extent and nature of thereasons would depend on particular facts andcircumstances. What is necessary is that thereasons are clear and explicit so as toindicate that the authority has given due https://hcservices.ecourts.gov.in/hcservices/ consideration to the points in controversy.The need for recording of reasons is greater ina case where the order is passed at theoriginal stage. The appellate or revisionalauthority, if it affirms such an order,need notgive separate reasons. If the appellate orrevisional authority disagrees, the reasonsmust be contained in the order underchallenge."Para 21:"Thus it is settled law that the reasons areharbinger between the mind of the maker of theorder to the controversy in question and thedecision or conclusion arrived at. It alsoexcludes the chances to reach arbitrary,whimsical or capricious decision or conclusion.The reasons assure an inbuilt support to theconclusion/decision reached. The order when itaffects the right of a citizen or a person,irrespective of the fact, whether it is quasi-judicial or administrative fair play requiresrecording of germane and relevant precisereasons. The recording of reasons is also anassurance that the authority concernedconsciously applied its mind to the facts onrecord. It also aids the appellate orrevisional authority or the supervisoryjurisdiction of the High Court under Article226 or the appellate jurisdiction of this Courtunder Article 136 to see whether the authorityconcerned acted fairly and justly to mete outjustice to the aggrieved person."Para 8.3.: Further, in identical circumstances, a DivisionBench of this Court in W.P. No. 19063 of 2004 [P.Sekar v. The Registrar, Tamil Nadu AdministrativeTribunal, Chennai and others], disposed on16.02.2008, has held as follows:-Para 5:"Therefore, the contention of the petitionerthat the enquiry report and the order ofpunishment are based on no evidence is notacceptable. In a departmental enquiry,technical rules of the Evidence Act are notstrictly applicable. On behalf of theDepartment, the letter of the Director ofGovernment Examinations dated 7.11.2001 hadbeen produced indicating that the marksreflected in the mark sheet submitted by thepetitioner did not tally with the marksavailable from the original records. Thepetitioner himself was examined during thedepartmental enquiry and the questions put and https://hcservices.ecourts.gov.in/hcservices/ the answers given are available on record.Except baldly stating that the petitioner hasgot mark sheet from the school, there is noother acceptable material or detail has beengiven. It is not even the case of thepetitioner that he had actually passed and thereport given by the Director of the GovernmentExaminations is incorrect. Since thepetitioner had submitted a mark sheet, whichwas found to be incorrect, it was within thesubject knowledge of the petitioner as to thesource of obtaining such mark sheet and it wasfor him to explain such aspect by adducingproper evidence. To that extent, the Tribunalwas correct in coming to the conclusion thatthe charge has been found against him."Para 9:Whether leniency can be shown by Courts for havingsubmitted fake forged educational certificates atthe time of appointment?Para 9.1.: The Supreme Court had answered this issue inmany of its decisions relating to employments beingsecured by fraud or deceit. Some of the decisionswere also rendered in the context of personsgaining entry with false Community Certificates. Para 9.2.: In Bank of India v. Avinash D. Mandivikar [(2005) 7SCC 690], the Supreme has held in paragraphs 11 and12 as follows:Para 11:".... Fraud and collusion vitiate even themost solemn proceedings in any civilised systemof jurisprudence. This Court in Bhaurao DagduParalkar v. State of Maharashtra dealt with theeffect of fraud. It was held as follows in thesaid judgment: (2005 (7) SCC pp. 613-14, paras12-16)“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 Yadav https://hcservices.ecourts.gov.in/hcservices/ v. 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).‘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’sjudgment holding that Respondent 1 employee wasto be reinstated in the same post as originallyheld is clearly untenable. The order oftermination does not suffer from any infirmityand the High Court should not have interferedwith it. By giving protection for even alimited period, the result would be that aperson who has a legitimate claim shall bedeprived the benefits. On the other hand, aperson who has obtained it by illegitimatemeans would continue to enjoy itnotwithstanding the clear finding that he does https://hcservices.ecourts.gov.in/hcservices/ not even have a shadow of right even to beconsidered for appointment." Para 9.3.: The Supreme Court in the decision in Ram Saran v.IG of Police, CRPF [(2006) 2 SCC 541] observed inparagraphs 9 to 11 as follows:Para 9: "In R. Vishwanatha Pillai v. State of Kerala itwas observed as follows: (SCC pp. 116-17, para19)“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. Hisappointment 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 individual https://hcservices.ecourts.gov.in/hcservices/ acquired a status by practising fraud.”Para 10:Though the case related to a false [caste]certificate, the logic indicated clearlyapplies to the present case.Para 11:This is a case which does not deserve anyleniency otherwise it would be giving premiumto a person who admittedly committed forgery.In the instruction (GO No. 29 of 1993), it hasbeen provided that whenever it is found that agovernment servant who was not qualified oreligible in terms of the recruitment rules,etc. for initial recruitment in service or hadfurnished false information or produced a falsecertificate in order to secure appointmentshould not be retained in service. Afterinquiry as provided in Rule 14 of the CCS(CCA)Rules, 1965 if the charges are proved, thegovernment servant should be removed ordismissed from service and under nocircumstances any other penalty should beimposed."Para 9.4.Further, the Supreme Court in the decision inSuperintendent of Post Offices v. R. Valasina Babu[(2007) 2 SCC 335] observed in paragraphs 14 and 15as follows:Para 14:"The question in regard to the effect ofobtaining appointment by producing falsecertificate came up for consideration in Stateof Maharashtra v. Ravi Prakash BabulalsingParmar wherein this Court opined that theauthorities concerned would have jurisdictionto go into the said question and pass anappropriate order. The effect of cancellationof such caste certificate had also been noticedin the light of a two-Judge Bench decision ofthis Court in Bank of India v. Avinash D.Mandivikar wherein it was held that if theemployee concerned had played fraud inobtaining 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 theopinion that in a case of this nature, it mightnot have been necessary to initiate anydisciplinary proceeding against therespondent." https://hcservices.ecourts.gov.in/hcservices/ Para 9.5.: In Additional General Manager – HumanResource, Bharat Heavy Electricals Limited v.Suresh Ramkrishna Burde [(2007) 5 SCC 336] onceagain reiterated the principles laid down in R.Viswanatha Pillai v. State of Kerala [(2007) 5SCC 336] and the following passage found inparagraph 10 may be usefully extracted: Para 10:"An identical controversy was again examined inR. Vishwanatha Pillai v. State of Kerala whichis a decision rendered by a Bench of threelearned Judges. The employee in the aforesaidcase had got an appointment in the year 1973against a post reserved for Scheduled Caste. Oncomplaint, the matter was enquired into and theScrutiny Committee vide its order dated 18-11-1995 held that he did not belong to ScheduledCaste and the challenge raised to the saidorder was rejected by the High Court and thespecial leave petition filed against the saidorder was also dismissed by this Court. He thenfiled a petition before the AdministrativeTribunal praying for a direction not toterminate his services which was allowed, butthe order was reversed by the High Court in awrit petition. The employee then filed anappeal in this Court. After a detailedconsideration of the matter this Courtdismissed the appeal and para 15 of the Report,which is relevant for the decision of thepresent case, is reproduced below: (SCC p. 115)“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. https://hcservices.ecourts.gov.in/hcservices/ 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, thecontentions made by the learned counsel for thepetitioners that they should be dealt with lenientlymust be rejected.Para 10:Alternative remedy must be exhausted:-Even if the enquiries proposed by the respondentCorporations are conducted in the manner unknown tolaw, it is for the petitioners to participate in thesame and if any adverse orders are passed, theycannot move this Court on the basis of any defect orirregularity in the enquiry proceedings. Thepetitioners must necessarily raise an industrialdispute against their removal, if any made, and gettheir case adjudicated before the Labour Court.This is in view of the fact that the Labour Court,in case, holds that the enquiry is vitiated, has gotpower to summon records from the appropriateauthorities under Section 11 of the IndustrialDisputes Act and also to examine any person on oath.In that process, the truth or otherwise of thepetitioners' educational qualification will come outand in genuine cases, the petitioners can get properrelief."6.Apart from the above fact, in the present case, it mustbe understood that the third respondent Corporation had initiateddisciplinary action on the basis of the report received from thefirst respondent District Educational Officer. Therefore, inorder to forestall the said enquiry proceedings, the petitionercannot come before this Court to attack the very order of theDistrict Educational Officer. It is for the third respondent toconduct the enquiry in the manner known to law and it is for thepetitioner to prove his innocence in the departmental enquiry andif any adverse order is passed, it is always open to him to movethe machinery provided under the Industrial Disputes Act, 1947 andget appropriate relief. The writ remedy at this stage isclearly misconceived. https://hcservices.ecourts.gov.in/hcservices/

7.In view of the above, the writ petition is dismissed.However, there will be no order as to costs. ConnectedMiscellaneous Petitions are closed. sd/-Asst.Registrar/true copy/Sub Asst.RegistrargriTo1.The District Elementary Educational OfficerNamakkal2.The Assistant Elementary Educational OfficerRasipuram, Namakkal3.The Managing DirectorTamil Nadu State Transport Corporation(Salem Division I) Ltd.Ramakrishna RoadSalem+1 cc To Mr. S. Ayyathurai , Advocate, SR.29553+1 cc To Mr.C. Kanakaraj, Advocate, SR.294711 cc To The Government Pleader, SR.29731W.P. No. 28643 of 2004 skd [co]gkg/1.8