IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.04.2009 CORAM THE HONOURABLE MR. JUSTICE K.N.BASHA W.P.No.14160 of 2002 S.R.Rajini ... Petitioner Vs 1.Principal, Madurai Law College, Madurai. 2.The Director, Directorate of Legal Studies, Nandanam, Anna Salai, Chennai-32. 3.The Joint Director of Government Examinations (Higher Secondary), Chennai-6. 4.The Headmistress, OCPM Government Higher Secondary School, Thallakulam, Madurai-2. 5.The Registrar, Tamil Nadu Dr.Ambedkar Law University, Chennai-28. ... Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the entire records of the first respondent in connection with the impugned proceedings Na.Ka.No.439/E/2001 dated 12.4.2002 and quash the same and consequently, direct the respondents to permit the petitioner to pursue her studies in the 4th and 5th year of B.L.Degree Course at the first respondent college and write the concerned examinations conducted by the 5th respondent. For Petitioner : Mr.M.Venkatachalapathi, Senior Counsel for Mr.M.Sriram https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr.Sankaran, 1 to 3 Special Government Pleader for Mr.A.Suresh, Government Advocate For 4th respondent : Mr.G.R.Swaminathan For 5th respondent : Mr.T.D.Vasu O R D E R The challenge in this writ petition is to the order passed by the first respondent dated 12.4.2000 made in his proceedings Na.Ka.No.439/E/2001 cancelling the admission of the petitioner to the five year Bachelor of Law Course for the academic year 1998-99 on the ground of submission of a bogus +2 Mark sheet and consequently, seeking for the relief of a direction to the respondents to permit the petitioner to pursue her studies in the fourth and fifth year of B.L.Degree Course at the first respondent college and write the concerned examinations conducted by the fifth respondent. 2. The filing of the petition arising out of the following factual scenario : The petitioner appeared for the +2 examination held during March 1998 and as per the original mark sheet issued to the petitioner, the petitioner said to have secured 44% marks out of 200 in Mathematics subject. As the petitioner expected more marks she has applied for retotalling of her marks in Mathematics subject by submitting her application dated 12.6.1998 to the third respondent herein. The petitioner also paid the necessary fees for retotalling the marks in Mathematics. Thereafter, the petitioner received a letter dated 9.7.98 from the third respondent through his proceedings Na.Ka.No.063268/Me.Ni.16/98 by post intimating that the retotalling marks comes to 81 and instructed the petitioner to receive the mark sheet from the fourth respondent, namely, the Headmistress of the Higher Secondary School. The third respondent addressed the said letter dated 9.7.1998 to the Headmistress, the fourth respondent herein, and marked a copy to the petitioner herein. Thereafter, the petitioner obtained the retotalling mark sheet from the fourth respondent. 3. The petitioner after obtaining the mark sheet as stated above applied for five year Bachelor of Law Course in Madurai Law College for the academic year 1998-99 and she has written the entrance examination on 5.10.1998. The petitioner was selected for the five years Bachelor of Law Degree Course in Madurai Law College and after payment of tuition fees, she has been admitted for the first year B.L. Degree Course for the year 1998-99. The petitioner was regularly attending the classes and she has passed the first two years and appeared for the third year examination during March 2001. https://hcservices.ecourts.gov.in/hcservices/ But her results have been withheld. The first respondent issued a show cause notice dated 21.3.2001 in his proceedings Na.Ka.No.439/2/2001 stating that the petitioner's +2 mark sheet was sent to the third respondent for clarification which revealed that the +2 mark sheet furnished by the petitioner was a forged and bogus one and the said mark sheet was not issued by the third respondent. The petitioner replied to the said show cause notice on 23.3.2001 by submitting her explanation to the effect that the mark sheet produced by her is a genuine one and only as per the intimation sent by the third respondent, she has received the said mark sheet from the fourth respondent by surrendering her old mark sheet. The petitioner denied the allegations and as the first respondent proceeded to take action in spite of such submission of explanation, the petitioner was constrained to file W.P.No.6174 of 2001 before this Court and this Court passed an order in the said writ petition dated 14.02.2002 directing the first respondent to institute a proper enquiry on the show cause notice and to pass orders on merits after giving due opportunity to the petitioner to produce all materials and also after giving a personal hearing to the petitioner. 4. The further version of the petitioner is that during the pendency of the above said writ petition in W.P.No.6174 of 2001, the petitioner was permitted to write the third year examinations, but the results were withheld. The petitioner appeared for the enquiry on 23.2.2002 before the first respondent and the petitioner produced the mark sheet with Serial No.2456102, wherein the mark in Mathematics was shown as 44 and also produced the letter dated 9.7.98 issued by the third respondent stating that the retotalled mark is 81, a Challan copy for payment of a sum Rs.127/- for the retotalling dated 10.6.98 and the Xerox copy of the retotalled mark sheet bearing S.No. AB 2653092. The petitioner also filed a detailed affidavit denying the charges levelled against her. The first respondent rejected the explanation of the petitioner and passed the impugned order dated 12.4.2002 signed on 12.4.2002 cancelling the admission of the petitioner to the five year Bachelor of Law Degree Course. The said order is under challenge in this petition. 5. Mr.M.Venkatachalapathy, learned Senior Counsel appearing for the petitioner vehemently contended that the petitioner has been charged for the allegation of producing a bogus mark sheet without any materials. It is further contended that the said charge is baseless and no evidence available on record to implicate the petitioner to the effect that the petitioner forged the mark sheet. The learned senior counsel would also contend that the petitioner received a communication dated 9.7.1998 from the third respondent directing the petitioner to receive the retotalled mark sheet from the Headmistress of the school and the said communication was addressed to the Headmistress of the school and as such it cannot be contended by the third respondent that the mark sheet obtained by the https://hcservices.ecourts.gov.in/hcservices/ petitioner after retotalling is a bogus one. The learned senior counsel would further contend that the first respondent passed the impugned order holding that the petitioner has not proved that the mark sheet produced by her is a genuine one ignoring that it is the burden of the third respondent to prove that the mark sheet produced by the petitioner is not a genuine one. The learned senior counsel also proceeded to point out certain other illegalities and infirmities in passing the impugned order by the first respondent to the effect that the first respondent has ignored, overlooked the explanation submitted by the petitioner through her affidavit and also brushed aside the documents produced by the petitioner, namely, the letter dated 9.7.1998 sent by the third respondent, a chalan for payment of a sum of Rs.127/- for retotalling dated 10.6.1998 and the copy of the application submitted for retotalling dated 12.6.1998. It is contended on the other hand that the third respondent has not produced any materials to prove that the mark sheet submitted by the petitioner is a bogus one. The learned senior counsel would also contend that the first respondent before passing the impugned order has not called for any remarks from the third respondent and it is also contended that the first respondent passed the impugned order arbitrarily and without application of mind merely on the basis of the letter of the third respondent dated 3.3.2001 stating that the mark sheet produced by the petitioner is a bogus one without even examining the third respondent and without any evidence. 6. Per contra, Mr.Sankaran, learned Special Government Pleader appearing for respondents 1 to 3 contended that there is no illegality in the impugned order passed by the first respondent as the said order was passed after giving effective opportunity to the petitioner to put forth her contentions. It is further contended that the verification of the records available with the third respondent clearly shows that the third respondent has not at all received any application for retotalling from the petitioner herein and as such the mark sheet produced by the petitioner before the first respondent is a bogus one. The learned Special Government Pleader by placing three records before this Court namely, the Register maintained for making entries in respect of the original mark sheets, the Register maintained for registering the retotalling mark sheets and thirdly, the register maintained for issuing the retotalled mark sheet to the respective candidates contended that the said registers disclose that the petitioner neither sent the application for re-totalling nor the third respondent issued the re- totalled mark sheet through the communication dated 9.7.1998. 7. Learned counsel appearing for the fourth respondent submitted that the petitioner studied in the fourth respondent school and she had originally secured 44 marks in Mathematics and thereafter she applied for re-totalling. It is further submitted that the school has received a communication dated 9.7.1998 through registered post https://hcservices.ecourts.gov.in/hcservices/ from the office of the third respondent along with the re-totalled mark sheet showing that the petitioner has been awarded 81 marks in Mathematics. The learned counsel for the fourth respondent further submitted that subsequently, the petitioner appeared before the fourth respondent and received the re-totalled mark sheet. It is also submitted that the records available in the school discloses that the petitioner also brought the copy of the communication dated 9.7.1998 sent by the third respondent at the time of receiving the re-totalled mark sheet. 8. I have given my careful and anxious consideration to the rival contentions put forth by either side and also thoroughly scrutinised the materials available on record including the records produced before this Court by the third respondent herein and also perused the impugned order. 9. The crux of the question involved in this matter is that whether the mark sheet produced by the petitioner is a genuine one or bogus one and whether the third respondent produced any evidence direct or indirect to prove such allegation and whether the impugned order passed by the first respondent is based on any evidence or even preponderance of probabilities ? 10. The categorical version of the petitioner is that she has preferred an application dated 12.6.1998 for re-totalling of her marks in Mathematics. The preference of such application by the petitioner is substantiated by the statement of the fourth respondent, the Headmistress of the School. In the counter affidavit filed by the fourth respondent school, it is stated categorically that the petitioner applied for re-totalling. Yet another document available on record as produced by the petitioner before the first respondent is the copy of certificate of credit in respect of payment of fee for re-totalling the marks issued by the Assistant Treasury Officer, Sub-Treasury, Madurai. The petitioner also produced the xerox copy of the application for re-totalling of marks dated 12.6.1998 before the first respondent. Therefore, it is crystal clear from the above said documents that the petitioner substantiated her version that she had submitted an application in the prescribed format issued by the department for retotalling the marks in Mathematics. Apart from substantiating the claim of the petitioner preferring the application for retotalling, the petitioner also produced other relevant connected records, namely, the letter of communication said to have been addressed to the Headmistress of the fourth respondent school and the postal cover. It is pertinent to note that the communication dated 9.7.1998 sent by the third respondent reveals that a copy was marked to the petitioner herein and further directed the petitioner to receive the mark sheet from the Headmistress of the school. The petitioner claimed that after receiving such mark sheet from the Headmistress, the fourth https://hcservices.ecourts.gov.in/hcservices/ respondent herein, she came to know that as per the retotalled mark sheet she secured 81 marks in Mathematics. It is seen that the said mark sheet contains the signature of the Secretary, Board of Higher Secondary Examination, Tamil Nadu with the seal. 11. The counter affidavit filed by the fourth respondent before this Court further discloses that the petitioner met the then Headmistress Sudanthiradevi Ramar and received the retotalled mark sheet and the said Headmistress since retired, the present Headmistress, the fourth respondent herein has filed the counter affidavit on the basis of the records available in the school. It is stated in the counter affidavit filed by the fourth respondent that a signed statement of the said Headmistress, namely, Sudanthiradevi Ramar, which is also available in the records of the school stating that she handed over the retotalled mark sheet to the petitioner herein. The learned counsel for the fourth respondent also produced a copy of the register maintained in the school to show that after the receipt of the retotalling mark, in the column mentioning the name of the petitioner mark in respect of Mathematics was corrected as 081 and also it is stated as 'pass' by striking the letters written as 'fail'. The said corrections also signed by the then Headmistress. 12. It is seen that on the production of the retotalled mark sheet along with the application, the petitioner appeared for written examination and ultimately selected for the five year B.L. Course for the year 1998-99. The petitioner was admitted after perusal and verification of the original mark sheet and other connected certificates by the first respondent herein. After completion of two years and when the petitioner was about to write the third year examination, the petitioner received a show cause notice dated 21.3.2001 from the first respondent alleging that as per the letter sent by the third respondent dated 3.3.2001, it was alleged that the mark sheet produced by the petitioner is a bogus one and as such the petitioner was called upon to give explanation as to why action should not be taken for cancelling her admission in the five year B.L. Course. 13. This Court cannot lost sight of the admitted fact to the effect that the show cause notice dated 21.3.2001 does not disclose any reasons or materials on which it was established that the mark sheet produced by the petitioner is a bogus one. The first respondent made only a reference in respect of the letter sent by the third respondent herein dated 3.3.2001 in Letter No.128784/V3/2000 stating that the mark sheet relating to the petitioner under Registration No.564979 March 1998 is found to be a bogus one on verification of the other office records and such certificate was not issued by the Department of Government Examinations and the petitioner on her own increased the mark in the mark sheet. It is pertinent to note that a copy of the said letter sent by the third https://hcservices.ecourts.gov.in/hcservices/ respondent to the first respondent dated 03.03.2001 also not served to the petitioner either at the time of serving the show cause notice or at the time of conducting enquiry. It is the admitted case of the respondents that except serving the show cause notice, no other document was served to the petitioner before or at the time of enquiry. At this juncture, it is relevant to state that on the other hand, it is only the petitioner produced the relevant documents, as stated above, to establish her contention that she had applied for re-totalling and she has received the re-totalled mark sheet through the fourth respondent, the school Headmistress. 14. Now coming to the manner and method under which the enquiry was conducted by the first respondent, it is to be stated, at the outset, that the first respondent adopted a strange procedure unknown to law. A reading of the impugned order dated 1.4.2002 signed by the first respondent on 12.4.2002 reveals that neither the third respondent nor any one of the officials of the respondents 1 to 3 appeared and participated in the enquiry proceedings conducted by the first respondent herein to prove the allegation levelled against the petitioner. On the other hand, the impugned order reveals that the petitioner appeared before the first respondent and participated in the enquiry by filing her affidavit narrating the sequence of events and giving her explanation to the allegation levelled against her. It is seen that the petitioner also produced the documents, namely, the copy of the re-totalled +2 mark sheet bearing registration No.564979 March 1998, the copy of the original mark sheet, the copy of the application dated 06.11.2001 and the certificate of credit issued by the Assistant Treasury Officer, Sub-Treasury, Madurai, for the payment of a sum of Rs.127/- towards fees for re-totalling. Apart from filing the affidavit and producing the documents, the petitioner was also enquired by the first respondent and the petitioner answered all the queries put by the first respondent and categorically and assertively stated that the +2 mark sheet produced by her for the admission of five year law course is a genuine one. A perusal of the affidavit dated 22.3.2001 filed by the petitioner before the first respondent during the course of enquiry reveals that the petitioner stated all the details and denied the allegation as she has produced the bogus mark sheet. The petitioner also pointed out in the said affidavit that certain contradictory statements made in the counter filed in her earlier writ petition in W.P.No.6174 of 2001 by the respondents to the effect that serial number of the petitioner was wrongly mentioned as AB 2456096 instead of AB 2456102. It is further pointed out in the said affidavit that in the counter filed by the respondents in W.P.No.6174 of 2001 before this Court stated that the Director of Legal Studies has addressed a letter to the Joint Director of Government Examinations in letter No.1771/B3/2001 dated 31.3.2001 asking clarification as "Whether the letter No.053268/nkep/16/98 dated 9.7.98 purported to be issued by the https://hcservices.ecourts.gov.in/hcservices/ Joint Director of Government Examination informing the Headmistress of O.C.P.M. Girls Higher Secondary School, Madurai, regarding the cancellation of original Mark Statement of the petitioner herein and the issue of a revised mark statement bearing Serial No.AB 2653092 was a genuine one". The Joint Director of Government Examination in his letter No.128784/tp 3?3(tp 1)/2000 dated 17.4.2001 has replied the Director of Legal Studies as that "The letter No.053282 dated 9.7.98 is a forged one". Therefore, it is pointed out by the petitioner that the Joint Director of Government Examination has not replied the clarification sought for by the Director of Legal Studies and in his reply he has mentioned about some other letter bearing No.053282 dated 9.7.98 instead of the disputed letter bearing No.053268 dated 9.7.98. All these detailed explanation and statement given by the petitioner through her affidavit have been simply overlooked and ignored by the first respondent herein. The first respondent brushing aside the documents and affidavit by the petitioner and the version given by the petitioner during the enquiry, held that the petitioner has not produced any document to substantiate her version that the mark sheet produced by her is not a bogus one. 15. The first respondent has committed a serious error of law by wrongly placing the burden on the petitioner to prove the allegation that the +2 mark sheet produced by her is not a bogus one forgetting for a moment that it is the initial burden of the third respondent to produce prima facie materials and evidence to substantiate the allegation that the mark sheet produced by the petitioner is a bogus one. As already pointed out, neither the third respondent nor the second respondent or any of the officials of the Directorate of Government Examinations appeared and participated in the enquiry by giving their evidence and producing materials to substantiate the allegation levelled against the petitioner. The first respondent by merely placing reliance on the letter sent by the third respondent dated 3.3.2001 in his letter No.Na.Ka.No.128784/tp 3?3 (tp 1)/2000 held that the petitioner has produced a bogus mark sheet for getting admission in five year law course for the year 1998-99. 16. It is well settled that the departmental proceeding is a quasi judicial proceeding and the Enquiry Officer performs a quasi judicial function and in a domestic enquiry fairness in the procedure is a part of the principles of natural justice. But in the case on hand, the impugned order was passed not only in flagrant violation of principles of natural justice, but the first respondent arrived at the conclusion that the petitioner produced the bogus mark sheet without any evidence available on record by merely placing reliance on a letter of communication sent by the third respondent dated 3.3.2001, without examining the author of the letter, the third respondent herein, to prove the contents of the said letter. Neither the third respondent appeared and participated in the enquiry nor the https://hcservices.ecourts.gov.in/hcservices/ first respondent summoned the third respondent at the time of enquiry. The first respondent has inferred the guilt of the petitioner to the effect that the petitioner has produced the bogus mark sheet by placing reliance on the letter of the third respondent dated 3.3.2001. The first respondent treated the said letter of the third respondent dated 3.3.2001 as gospel truth without scrutinising and testing the credibility of such letter by summoning the third respondent and by seeking materials from the third respondent for substantiating the allegation levelled against the petitioner by the third respondent. 17. At this juncture it is relevant to refer the decision of the Hon'ble Apex Court regarding the standard of proof in a domestic enquiry. The Hon'ble Apex Court in Maharashtra State Board of Secondary and Higher Secondary Education V. K.S.Gandhi reported in (1991) 2 SCC 716 held as follows : "37. It is thus well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct of circumstantial from which to infer the other fact which it is sought to establish. In some cases the other facts can be inferred, as much as is practical, as if they had been actually observed. In other cases the inferences do not go beyond reasonable probability. If there are no positive proved facts, oral, documentary or circumstantial from which the inferences can be made the method of inference fails and what is left is mere speculation or conjecture. Therefore, when an inference of proof that a fact in dispute has been held established there must be some material facts or circumstances on record from which such an inference could be drawn. The standard of proof is not proof beyond reasonable doubt "but" the preponderance of https://hcservices.ecourts.gov.in/hcservices/ probabilities tending to draw an inference that the fact must be more probable." (emphasis supplied) If the case on hand is considered with the touch stone of the principle laid down by the Hon'ble Apex Court in the decision cited supra, then this Court has no hesitation to hold that the