IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.02.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.16208 of 2009 and M.P.NO.1 OF 2009 K.Thangam .. Petitioner Vs. 1.The Secretary to Government, Government of Tamilnadu, Cooperation, Food and Consumer Protection Department, Fort St. George, Chennai-600 009. 2.The Additional Registrar of Cooperative Societies, Chennai Region, Chennai-600 018. 3.The Deputy Registrar, TUCS Ltd., 156, Big Street, Chennai-600 005. 4.The Special Officer, TUCS Ltd., No.156, Big Street, Chennai-600 005. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to the proceedings of the impugned order of the first respondent dated 17.4.2009 made in G.O.Ms.No.44, Cooperation, Food and Consumer Protection (CA1) Department, who reversed the order passed by the second respondent dated 13.2.2008 in R.C.No.7639/2007/C2 and to quash the same. For Petitioner : Mr.K.P.Chandrasekaran For Respondents : Mr.A.Arumugam, Spl.G.P. For RR1 and 2 Mr.P.Anbarasan for RR3 and 4 https://hcservices.ecourts.gov.in/hcservices/ ORDER Heard both sides. The petitioner had originally jointed as an Assistant Salesman in the fourth respondent society on 29.8.1986. He claims that he had passed 8th standard and had produced an educational certificate to that effect. Subsequently, a complaint seems to have been received by the Chief Minister's grievance Cell about the petitioner committing a fraud on the society. On a query made by the CM's office, an enquiry under Section 81 of the Tamilnadu Cooperative Societies Act, 1983 was ordered. During the enquiry, it was found out that the petitioner had given a false educational certificate. 2.Therefore, a charge memo, dated 26.2.2007 was given to the effect that the petitioner did not get through 8th standard. The qualification required for that post was 8th standard pass. An enquiry was ordered after getting the petitioner's explanation. The Enquiry Officer found that the petitioner was guilty of charges. Subsequently, the petitioner was given a copy of the Enquiry report along with a show cause notice, dated 23.5.2007. The petitioner gave his explanation, dated 1.6.2007. The fourth respondent passed an order, stating that the petitioner's claim that he had studied in TELC Middle School, Keelapudur, Usilampatti, Madurai District was not truthful and his educational certificate was not genuine as informed by the Headmaster of that School. Therefore, the petitioner was removed from service with effect from 4.7.2007. 3.The petitioner filed a revision petition under Section 153 of the Act before the revisional authority, challenging the order of removal. The revisional authority, by an order, dated 13.2.2008 allowed the revision petition and the impugned order, dated 4.7.2007 was set aside. The revisional authority found that there was no acceptable evidence. The school Headmaster had not given categorical statement that it was a false certificate. In effect, the statement of the Headmaster of the School was unconvincing. 4.Aggrieved by the order passed by the revisional authority, the Society (R-4) filed a revision before the State Government i.e. first respondent. In that revision, notice was ordered to the petitioner. The petitioner filed a counter statement, dated 17.2.2009. It was thereafter, the State Government by G.O.Ms.No.44, Cooperation, Food and Consumer Protection Department, dated 17.4.2009 allowed the revision filed by the Society and the order of the Additional Register, i.e. second respondent, was set aside. It is against this order the petitioner has come forward to challenge the same. 5.In the operative portion of the order in paragraph 4, the first respondent observed as follows: "4.On hearing the argument of both the sides, the issue that had to be decided was whether the https://hcservices.ecourts.gov.in/hcservices/ second certificate given by Thiru K.Thangam was bogus or not. The School Head Master in his letter dated 5.9.2005 has clearly stated that no certificate has been issued to the above person in admission No.3875 and the certificate in question is bogus. However, the Additional Registrar while examining the revision petition, the above individual has personally contacted the Head Master of the TELC Middle School, Kilpudur who has informed him that the school records were destroyed in the fire and thereore he could not exactly inform whether the petitioner had studied in the school or not and that if a report is called for him he would give a report. But no mention has been made about the fire accident or consequent burning of the records and also he has stated that since 1963- 64 admission register had not been produced to him, he has given such a reply. In 2005 it had been clearly stated that the individual had not studied in the school. But after 3 years (i.e) in 2008 giving such a report by the Head Master is unacceptable. Moreover, when the report is already clear the action of the Additional Registrar in having obtained the explanation of the Head Master again seems unnecessary and with malafide intention. In view of the above dismissal from service in proceedings R.C.No.772/06/2002, dated 4.7.07 ordered by the Special Officer, Triplicane Urban Cooperative Society Limited, is upheld and is restored." It is against this order, the writ petition has been filed as noted already. 6.When the matter came up on 29.9.2009, notice of motion was ordered. On notice from this court, the third respondent has filed a counter affidavit, dated 26.10.2009. A typed set of papers was also filed enclosing the letters written by the Headmaster of TELC Middle School, Keelapudur, Usilampatti, dated 5.9.2005 and 11.1.2008. The action against the petitioner was based upon only on these two documents. In the first document, the Headmaster had informed the Cooperative Sub Registrar in response to the letter received from the department, the petitioner K.Thangam did not study in their school during the year 1970-71 and therefore, the admission No.3875 found in the educational certificate was not given by the school. It was fabricated and not a genuine certificate. 7.After the dismissal and during the pendency of the revision application before the second respondent, the petitioner made a request before the revisional authority (R-2) stating that the Headmaster of the school had informed him personally that the school records were destroyed in a fire accident and he could not https://hcservices.ecourts.gov.in/hcservices/ exactly inform whether the petitioner had studied in the school or not. Therefore, the revisional authority must call for a fresh report to know the factual basis. The revisional authority addressed the Headmaster of the school on 22.12.2007 to state whether the petitioner had studied in the school and whether he got promoted from 8th standard in the year 1970-71 and to furnish necessary proof. 8.It is pursuant to the said request made by the revisional authority, the Headmaster of the school sent an another letter, dated 11.1.2008 stating that if the claim of the petitioner that he had passed 8th standard during 1970-71, he should have been admitted in the school in the year 1963-64 itself in the 1st standard. The admission register for the same was not entrusted to him by the previous headmaster. He has been working in the school only since 1987. He was in possession of documents from 1965. It may be possible that the petitioner would have studied in the school during 1963-64 and also it may be possible that he would have continued till 8th standard and would have passed. But, the school is not in possession of any of those documents. 9.By giving credence to the letter, the revisional authority came to the conclusion that there was no material to hold that the petitioner had given a false statement. The school Headmaster's statement and the findings of the Society was not absolute or categorical. There was lot of suspicion. On such surmises and conjectures, the petitioner should not be penalised. It is in that view of the matter, the revision petition was allowed. 10.However, the State Government by the impugned order as noted already held that at the beginning itself there was no mentioning about the fire accident. Having informed them earlier that he did not study in the school, after three years, the Headmaster cannot give a contra report. The Headmaster with mala fide intention had given such certificate. 11.In the present case, it must be noted that before finding the petitioner guilty, there must be proof that he had produced a false educational certificate. In the first instance, they acted on the basis of the letter of the Headmaster, dated 5.9.2005, which was received by them behind the back of the petitioner. The Headmaster was not examined in the enquiry and the letter sent by him was accepted at its face value. When the very same Headmaster had doubts and stated that it might have been possible that the petitioner had studied in the school and that he was not in possession of necessary documents then, in the absence of the Headmaster being summoned for further questioning, the State Government cannot presume any mala fide. When once the first revisional authority entertained doubts over certain documents and calls for further information, then he must stand or fall by such information. Otherwise he should have summoned the Headmaster for cross examination to test the veracity of both documents. https://hcservices.ecourts.gov.in/hcservices/ 12.On the contrary, with such doubtful statement made by the Headmaster, the petitioner's career in the society cannot be jeopardised. Even in the domestic enquiry, there must be acceptable evidence. In the present case, it must be noted that the petitioner had joined the Society as Assistant Salesman in the year 1986. The doubting his educational certificate itself was due to an anonymous letter being sent to the Government. The enquiry was initiated only during the year 2007, i.e. roughly after 21 years after the petitioner had joined service. In such case, before holding the petitioner guilty, there must be some unimpeachable evidence. In the absence of the Headmaster being examined, neither his first certificate nor the second letter can be relied upon. 13.The Government cannot presume that the Headmaster had acted mala fide. If that is accepted, then the earlier certificate given by the Headmaster can also doubted to hold that he would have given it under some compulsion. Therefore, instead of entering into the area of uncertainty, it is rather safe to give the benefit of doubt to the petitioner which was rightly given by the first revisional authority. Further, the revisional power to Government was provided under Section 153 is only to oversee that the original revisional authority do not commit any material irregularity and that his order do not suffer from any perversity. The court is of the opinion that the order of the first revisional authority (R-2) is a well considered order. It did not require any interference by the Government. 14.In the light of the above, the writ petition will stand allowed. However, there will be no order as to costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar vvk To 1.The Secretary to Government, Government of Tamilnadu, Cooperation, Food and Consumer Protection Department, Fort St. George, Chennai-600 009. 2.The Additional Registrar of Cooperative Societies, Chennai Region, Chennai-600 018. https://hcservices.ecourts.gov.in/hcservices/ 3.The Deputy Registrar, TUCS Ltd., 156, Big Street, Chennai-600 005. 4.The Special Officer, TUCS Ltd., No.156, Big Street, Chennai-600 005. 1 cc to Mr.K.P.Chandrasekaran, Advocate, Sr.No.10922 1 cc to Mr.P.Anbarasan, Advocate, Sr.No.13119 ORDER IN W.P.NO.16208 of 2009 TRM {CO} TP/8.3.2010. https://hcservices.ecourts.gov.in/hcservices/