IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 21..4..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. No. 8886 of 1998 K. Jeganathan .. Petitioner vs. 1. Union of India Rep. by Director General Border Roads Kashmir House DHQPO New Delhi 2. The Chief Engineer Project Vartak C/o 99 A.P.O. Tezpur Assam District .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus calling for the records relating to the impugned order dated 20.7.1997 passed by the first respondent in No. 17008/1041/DGBR/48/ETE confirming the order in No. 15425/ESD/JN/85/E1 dated 17.3.1997 passed by the second respondent and quash the same and direct the respondents to reinstate the petitioner in service with all consequential benefits. For Petitioner : Mr. C. Sundaravadivel For Respondents : Mr. M. Dhamodharan O R D E R Heard the arguments of the learned counsel for the parties and have perused the records. 2. The petitioner was appointed as a Pioneer in the GREF on 21.7.1966. Subsequently, he was promoted as a Store man w.e.f. 15.9.1968. Thereafter, through the selection made by the Departmental promotion Committee (DPC), he was promoted as Store Keeper (Technical) at the Eastern Store Division, GREF, Tezpur in Assam on 18.7.1983. He was given a charge-memo dated 29.6.1990 https://hcservices.ecourts.gov.in/hcservices/ stating that the H.S.L.C. Examination Certificate produced by him was not genuine and with that fake certificate, he had unjustly obtained promotion. He had also violated Rule 3(1)(i) and (iii) of the Central Services Conduct Rules, 1964. 3. An enquiry was conducted against the petitioner and he was given full opportunity to defend himself. He neither gave any written statement in the enquiry nor made any oral submission. The defence witness named by him confirmed that the H.S.L.C. Certificate produced by him was not genuine and was not issued by the Board of Secondary Education, Manipur. The Enquiry Officer found him guilty and copy of the report was furnished to him. Thereafter, he was imposed with a punishment of dismissal from service by the second respondent vide his order dated 17.3.1997. An appeal was filed by the petitioner which was rejected by the first respondent vide order dated 20.7.1997. 4. It must be stated in the enquiry, the letter dated 30.7.1992 issued by the Headmaster of Bhairodin Hindi High School, Impal, was produced wherein the Department was informed that his school was a Hindi Medium School and they would not have admitted any Tamil Medium scholar like the petitioner. Further, the letter dated 20.12.1999 written by the Secretary, Board of Secondary Education, Manipur that the petitioner had never appeared at the H.S.L.C. Examination in the year 1984 with Roll No. 7359 was also produced in the enquiry. It was on the strength of these materials, the petitioner was found guilty in the departmental enquiry. 5. Learned counsel for the petitioner submitted that the enquiry conducted against him was vitiated and many of the witnesses, whose names were furnished in the charge-memo, were not summoned. He also submitted that he has not committed any misconduct in as much as the certificate produced by him was genuine and the statements issued by the Headmaster and the Secretary of Board of H.S.C., Manipur were not proved in the manner known to law. In any event, he had submitted that the requirement of an H.S.L.C. Pass is relevant only for the promoted post and, therefore, he must be allowed to continue in service at least in the lower post for which he was not disqualified. Finally, he submitted that having worked for 31 years, leniency must be shown to him. 6. With reference to the submission that the enquiry was not fair and the report of the Secretary, H.S.C. Board, Manipur, should not be believed, it is relevant to refer to some decisions of this Court and the Supreme Court. https://hcservices.ecourts.gov.in/hcservices/ 6.1. In this context, the Supreme Court vide its decision in Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi and others [(1991) 2 SCC 716] has held that the principles of natural justice will depend on the nature of inquiry and the peculiar circumstances of each case. The relevant passage found in paragraph 17 may be usefully extracted below :- Para 17: "..... The show cause notice furnished wealth of material particulars on which the tampering was alleged to be founded and gave the opportunity to each student to submit the explanation and also to adduce evidence, oral or documentary at the inquiry. Each student submitted the explanation denying the allegation...." 6.2. Further, in identical circumstances, a Division Bench of this Court in W.P. No. 19063 of 2004 [P. Sekar v. The Registrar, Tamil Nadu Administrative Tribunal, Chennai and others], disposed on 16.02.2008, has held as follows:- Para 5: "Therefore, the contention of the petitioner that the enquiry report and the order of punishment are based on no evidence is not acceptable. In a departmental enquiry, technical rules of the Evidence Act are not strictly applicable. On behalf of the Department, the letter of the Director of Government Examinations dated 7.11.2001 had been produced indicating that the marks reflected in the mark sheet submitted by the petitioner did not tally with the marks available from the original records. The petitioner himself was examined during the departmental enquiry and the questions put and the answers given are available on record. Except baldly stating that the petitioner has got mark sheet from the school, there is no other acceptable material or detail has been given. It is not even the case of the petitioner that he had actually passed and the report given by the Director of the Government Examinations is incorrect. Since the petitioner had submitted a mark sheet, which was found to be incorrect, it was within the subject knowledge of the petitioner as to the source of obtaining such mark sheet and it was for him to explain such aspect by adducing proper evidence. To that extent, the Tribunal was correct in coming to the conclusion that the charge has been found against him." https://hcservices.ecourts.gov.in/hcservices/ 7. The Supreme Court in many of its decisions, had answered the issue as to whether leniency can be shown by Courts in cases of persons who gave fake forged educational certificates at the time of appointment and securing employment by fraud or deceit. Some of the decisions were also rendered in the context of persons gaining entry with false Community Certificates. 7.1. In Bank of India v. Avinash D. Mandivikar [(2005) 7 SCC 690], the Supreme has held in paragraphs 11 and 12 as follows: Para 11: ".... Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. This Court in Bhaurao Dagdu Paralkar v. State of Maharashtra dealt with the effect of fraud. It was held as follows in the said judgment: (2005 (7) SCC pp. 613-14, paras 12-16) “12. … ‘Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false.’ * * * 13. This aspect of the matter has been considered by this Court in Roshan Deen v. Preeti Lal (2002 (1) SCC 100), Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education (2003 (8) SCC 311), Ram Chandra Singh case (2003 (8) SCC 319) and Ashok Leyland Ltd. v. State of T.N. (2004 (3) SCC 1). 14. Suppression of a material document would also amount to a fraud on the court. (See Gowrishankar v. Joshi Amba Shankar Family Trust (1996 (3) SCC 1) and S.P. Chengalvaraya Naidu case (1994 (1) SCC 1).) 15. ‘Fraud’ is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti Yadav case. 16. In Lazarus Estates Ltd. v. Beasley Lord Denning observed at QB pp. 712 and 713 : (All ER p. 345-C) (1956) 1 QB 702). https://hcservices.ecourts.gov.in/hcservices/ ‘No judgment of a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.’ In the same judgment Lord Parker, L.J. observed that fraud vitiates all transactions known to the law of however high a degree of solemnity. (p. 722) [19]. These aspects were recently highlighted in State of A.P. v. T. Suryachandra Rao (2005 (6) SCC 149).” Therefore, mere delayed reference when the foundation for the same is alleged fraud does not in any way affect the legality of the reference. Para 12: "Looked at from any angle the High Court’s judgment holding that Respondent 1 employee was to be reinstated in the same post as originally held is clearly untenable. The order of termination does not suffer from any infirmity and the High Court should not have interfered with it. By giving protection for even a limited period, the result would be that a person who has a legitimate claim shall be deprived the benefits. On the other hand, a person who has obtained it by illegitimate means would continue to enjoy it notwithstanding the clear finding that he does not even have a shadow of right even to be considered for appointment." 7.2. The Supreme Court in the decision in Ram Saran v. IG of Police, CRPF [(2006) 2 SCC 541] observed in paragraphs 9 to 11 as follows: Para 9: "In R. Vishwanatha Pillai v. State of Kerala it was observed as follows: (SCC pp. 116-17, para 19) “19. It was then contended by Shri Ranjit Kumar, learned Senior Counsel for the appellant that since the appellant has rendered about 27 years of service, the order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensionary benefits of the appellant. We do not find any substance in this submission as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. The appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His https://hcservices.ecourts.gov.in/hcservices/ appointment to the post was void and non est in the eye of the law. The right to salary or pension after retirement flows from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on a false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for a Scheduled Caste, thus depriving a genuine Scheduled Caste candidate of appointment to that post, does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He, who comes to the court with false claims, cannot plead equity nor would the court be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of a false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practising fraud.” Para 10: Though the case related to a false [caste] certificate, the logic indicated clearly applies to the present case. Para 11: This is a case which does not deserve any leniency otherwise it would be giving premium to a person who admittedly committed forgery. In the instruction (GO No. 29 of 1993), it has been provided that whenever it is found that a government servant who was not qualified or eligible in terms of the recruitment rules, etc. for initial recruitment in service or had furnished false information or produced a false certificate in order to secure appointment should not be retained in service. After inquiry as provided in Rule 14 of the CCS(CCA) Rules, 1965 if the charges are proved, the government servant should be removed or dismissed from service and under no circumstances any other penalty should be imposed." https://hcservices.ecourts.gov.in/hcservices/ 7.3. Further, the Supreme Court in the decision in Superintendent of Post Offices v. R. Valasina Babu [(2007) 2 SCC 335] observed in paragraphs 14 and 15 as follows: Para 14: "The question in regard to the effect of obtaining appointment by producing false certificate came up for consideration in State of Maharashtra v. Ravi Prakash Babulalsing Parmar wherein this Court opined that the authorities concerned would have jurisdiction to go into the said question and pass an appropriate order. The effect of cancellation of such caste certificate had also been noticed in the light of a two-Judge Bench decision of this Court in Bank of India v. Avinash D. Mandivikar wherein it was held that if the employee concerned had played fraud in obtaining an appointment, he should not be allowed to get the benefits thereof, as the foundation of appointment collapses. Para 15: In this view of the matter, we are of the opinion that in a case of this nature, it might not have been necessary to initiate any disciplinary proceeding against the respondent." 7.4. In Additional General Manager – Human Resource, Bharat Heavy Electricals Limited v. Suresh Ramkrishna Burde [(2007) 5 SCC 336] once again reiterated the principles laid down in R. Viswanatha Pillai v. State of Kerala [(2007) 5 SCC 336] and the following passage found in paragraph 10 may be usefully extracted: Para 10: "An identical controversy was again examined in R. Vishwanatha Pillai v. State of Kerala which is a decision rendered by a Bench of three learned Judges. The employee in the aforesaid case had got an appointment in the year 1973 against a post reserved for Scheduled Caste. On complaint, the matter was enquired into and the Scrutiny Committee vide its order dated 18-11-1995 held that he did not belong to Scheduled Caste and the challenge raised to the said order was rejected by the High Court and the special leave petition filed against the said order was also dismissed by this Court. He then filed a petition before the Administrative Tribunal praying for a direction not to terminate his services which was allowed, but the order was reversed by the High Court in a writ petition. The employee then filed an appeal in this Court. After a detailed consideration of the matter this Court dismissed the appeal and para 15 of the Report, which is relevant for the decision of the present case, is reproduced below: (SCC p. 115) https://hcservices.ecourts.gov.in/hcservices/ “15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eye of the law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of a false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Castes. In view of the finding recorded by the Scrutiny Committee and upheld up to this Court, he has disqualified himself to hold the post. The appointment was void from its inception.” In the light of the above discussion, the contentions made by the learned counsel for the petitioner that the petitioner should be dealt with leniently must be rejected. 8. On the question that there is no misconduct, it is necessary to refer to the judgment of the Supreme Court in Union of India v. J. Ahmed [1979 (2) SCC 286]. The following passages found in paragraphs 9 and 11 of the judgment may be usefully extracted: Para 9: "The words “act or omission” contemplated by Rule 4 of the Discipline and Appeal Rules have to be understood in the context of the All India Services (Conduct) Rules, 1954 (“Conduct Rules” for short). The Government has prescribed by Conduct Rules a code of conduct for the members of All India Services. Rule 3 is of a general nature which provides that every member of the service shall at all times maintain absolute integrity and devotion to duty. Lack of integrity, if proved, would undoubtedly entail penalty.... If Rule 3 were the https://hcservices.ecourts.gov.in/hcservices/ only rule in the Conduct Rules it would have been rather difficult to ascertain what constitutes misconduct in a given situation. But Rules 4 to 18 of the Conduct Rules prescribe code of conduct for members of service and it can be safely stated that an act or omission contrary to or in breach of prescribed rules of conduct would constitute misconduct for disciplinary proceedings. This code of conduct being not exhaustive it would not be prudent to say that only that act or omission would constitute misconduct for the purpose of Discipline and Appeal Rules which is contrary to the various provisions in the Conduct Rules. The inhibitions in the Conduct Rules clearly provide that an act or omission contrary thereto so as to run counter to the expected code of conduct would certainly constitute misconduct. Some other act or omission may as well constitute misconduct...." [Emphasis added] Para 11: "Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster1). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers)]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur, and Satubha K. Vaghela v. Moosa Raza. The High Court has noted the definition of misconduct in Stroud’s Judicial Dictionary which runs as under: “Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct.” 9. The petitioner was charge-sheeted for the violation of Rule 3 of the C.C.S. Conduct Rules and the lack of integrity on his part is clearly proved. The submission that the petitioner must be allowed to continue in the lower post of Storeman is only stated to be rejected for the reasons already set out. https://hcservices.ecourts.gov.in/hcservices/ 10. In the light of the above, the writ petition fails and accordingly, will stand dismissed. No costs. Gri Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To 1. The Director General Border Roads Union of India Kashmir House DHQPO New Delhi 2. The Chief Engineer Project Vartak C/o 99 A.P.O. Tezpur Assam District 1 cc to Mr.M.Ajmal Khan, Advocate, SR.22496 1 cc to Mr.M.Dhamodharan, Advocate, SR.22303 bv (co) dv/30.5. W.P. No. 8886 of 1998 https://hcservices.ecourts.gov.in/hcservices/