IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.10.2010 CORAM: THE HONOURABLE MR.JUSTICE V. DHANAPALAN W.P. No. 329 of 2008 K.Dhanasekaran .. Petitioner Vs. 1. State of Tamil Nadu, Rep. by its Secretary to Government, Housing & Urban Development Department, Fort St.George, Chennai-600 009. 2. Tamil Nadu Housing Board, Rep. by its Managing Director 493, Anna Salai, Nandanam, Chennai – 600 035. 3. The Secretary cum Personnel Officer, Tamil Nadu Housing Board, 493, Anna Salai, Nandanam, Chennai – 600 035. 4. The Executive Engineer & Administrative Officer, Tamil Nadu Housing Board, Anna Nagar Division, Thirumangalam, Chennai – 600 101. .. Respondents Writ petition is filed under Article 226 of Constitution of India praying for the issuance of a writ of Certiorarified Mandamus after calling for the records from the first respondent viz. the order of the first respondent dated 19.10.2007 G.O.(D)No.218 confirming the orders of the Appellate Authority, the Second Respondent dated 12.01.2007 in proceedings No.DC2/4899/88 together with the order of the third respondent dated 10.11.2005 vide proceedings No.DC2/4899/88 and quash the same and consequently, direct the respondents to reinstate the petitioner in service with backwages, continuity of service, consequential and attendant benefits. For Petitioner : M/s.C.S.Monica For Mr.S.Vaidyanathan https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr.S.Gopinathan for R1 Addl. Govt. Pleader Mr.A.Vijayakumar for R2 to R4 O R D E R Heard M/s.C.S.Monica, learned counsel for Mr.S.Vaidyanathan, learned counsel appearing for the petitioner, Mr.S.Gopinathan, learned Additional Government Pleader appearing for the first respondent and Mr.A.Vijayakumar, learned counsel for the respondents 2 to 4. 2. In this writ petition, the petitioner, by challenging the order of dismissal passed by the third respondent dated 10.11.2005 and the Appellate Authority's order dated 12.01.2007, confirming the order of dismissal and the Government's order dated 19.10.2007 in the further appeal preferred by the petitioner, sought for quashment of the same and for a consequential direction to the respondents to reinstate the petitioner in service with back-wages, continuity of service, consequential attendant benefits. 3. According to the petitioner, he studied upto SSLC (old XI Standard), but unfortunately, he was not successful in clearing the papers in the examination. He joined the services of the Tamil Nadu Housing Board (hereinafter referred to as 'TNHB') in the year 1981 in the post of Sevakh and subsequently, promoted as Bill Collector. He served TNHB for 24 years and he was too young. Based on the certificates produced by his father, he was inducted in TNHB. 3a. The petitioner would submit that due to the vigilance interference, it was given to the light that one Ekambaram, an employee of Collectorate, procured several certificates to enable the unemployed youths to get employment in Government and other places. When the Vigilance Case started going against him, he committed suicide. The petitioner states that in that Vigilance enquiry, it was found that his certificate was also a forged one and based on that, an enquiry was conducted by the TNHB and he was suspended from service on 21.03.2003 and a charge sheet was issued against him on 26.02.2004, in which, two charges were framed against him alleging that he had produced bogus transfer certificate purported to have been issued by the Corporation High School, Saidapet, thereby, he violated the Tamil Nadu Housing Board Officers and Servants Rules (hereinafter referred to as 'Rules') and Tamil Nadu Housing Board Service Regulation 36(a) (ii) of 1969 (hereinafter referred to as 'Regulation'). 3b. According to the petitioner, he gave a detailed https://hcservices.ecourts.gov.in/hcservices/ explanation on 03.09.2004 to the charge memo, stating that he studied 11th standard, but failed and also stated that his father might have produced the certificate and he was not aware of the same. However, not satisfying with his explanation, an enquiry was conducted against him. In the enquiry, the respondents produced the certificate issued by Sir Thiyagaraya College School, Chennai-21. He also stated before the Enquiry Officer that when he was asked to produce the certificate, his father produced all his certificates and thereafter, kept all his original certificates with him, as he feared that he might misplace the original certificates at the young age. Then, the enquiry finding of the Enquiry Officer dated 08.08.2005 was forwarded to him and he was asked to submit his comments on the undated report of the Enquiry Officer. It was held in the Enquiry Report that the certificate issued by the Corporation School, Saidapet, is not a genuine one, but it was also stated that the Enquiry Officer had not given any reason as to how the certificate was produced to the TNHB. He further submits that if he wanted to stand by the certificate, which was not his intention, he would not have produced the XI standard certificate given by Sir Thiyagaraya College School. Therefore, he claims that based on the certificate, he is entitled to hold the post of Sevakh and Bill Collector. 3c. It is submitted by the petitioner that on receipt of his comments dated 06.09.2005, without taking into consideration of his contention, the third respondent proceeded with and ultimately passed an order of dismissal from service on 10.11.2005 with immediate effect. Then he preferred an appeal on 02.01.2006 to the Chairman, now the Managing Director, who also rejected his appeal by an order dated 12.11.2007 and thereafter, further appeal has been preferred to the Government and the first respondent, by an order dated 19.10.2007, confirmed the orders of the Disciplinary & Appellate Authority, viz. 1st and 2nd respondents. Assailing the orders of the respondents, the petitioner filed this writ petition seeking to quash the same on various grounds that the order was issued and signed by the Managing Director, even though it says it was by the order of the Board. It is his contention that he was not given any opportunity of personal hearing before imposing the capital punishment of dismissal. It was not his mistake for producing a wrong certificate. Therefore, he prayed for allowing the writ petition. 4. The third respondent, on behalf of other respondents, has filed counter. It is stated in the counter that the petitioner was appointed as Sevakh (Office Assistant) in Chairman's Proceedings No.E2(3)/38840/81-7 dated 18.11.1981 and joined duty as Sevakh (Office Assistant) on 23.11.1981 forenoon in Nandanam Division of Tamil Nadu Housing Board. His date of birth is 06.06.1958 as per the entries made in the Service Book of the individual, his https://hcservices.ecourts.gov.in/hcservices/ educational qualification (as per Column 9 of Service Book) is VIII Standard passed in the month of April 1973 TC.No.39 with Admission No.2246 and he also made his signature in the Service Book in Col.13. 4a. While such being the position, the Deputy Superintendent of Police, Vigilance & Anti-Corruption, Chennai-4, vide his letter No.RC7/AC/84 No.1 dated 14.01.1988, requested to send the Service Book and appointment files of the following persons for investigation against the staff of the Collectorate of Madras in sponsoring candidates for the post of last grade Government servants. Tvl. 1. K.Gajendran 2. A. Elango 3. G.Mohan 4. V. Radhakrishnan 5. E.Kamaraj 6. G.Pannerselvam 7. Nagalingam 8. Dhanasekaran 9. Joseph Based on the request of the Vigilance & Anti-Corruption Department, the Service Register of the above persons along with the appointment files have been handed over to the Vigilance Anti & Corruption, Chennai-4 on 14.03.1988. 4b. The respondents would further submit that the Deputy Superintendent of Police, Vigilance & Anti-Corruption, City-II Department, Chennai-6 in Letter No.RC7/AC/84 M.C-1 dated 25.05.1989 among other things stated that there are materials to indicate that they have resorted to forgery and have forged records for the purpose of gaining employment as Government Servant and further requested that necessary independent verification regarding the genuineness of the documents may be made and departmental action should be initiated against them. Accordingly, transfer certificates bearing Nos. 39 and 318 issued in the name of the Writ Petitioner was referred to the District Educational Officer, Chennai for its genuineness. On verification of these certificates with the concerned authorities, the District Educational Officer, Chennai East in her letter dated 04.07.2002 reported that the transfer certificate bearing No. 318 in the name of K.Dhanasekaran is genuine. 4c. In the counter, it is stated that the petitioner's educational qualification as per Service Book of the individual is VIII standard passed in April 1973, T.C.No.39 with Admission No. 2246. While so, the District Educational Officer, Chennai, in another letter dated 28.10.2002, reported that the transfer https://hcservices.ecourts.gov.in/hcservices/ certificate bearing No.39 is not genuine, which was not issued in the name of K.Dhanasekaran by the Head Master, Corporation High School, Saidapet, Chennai. Thus, the respondents would plead that the petitioner gained appointment as Sevakh (now called as Office Assistant) in the Chairman's Proc.No.E2-3/38840/81-7 dated 18.11.1981 by producing forged records and hence, he (then Office Assistant), Bill Collector, was placed under suspension in Memo No.DC4/4899/88 dated 19.03.2003 and the sanction accorded in Board's Resolution No.12.10 dated 12.03.2003. Subsequently, the following two charges were framed against him vide Memo No.DC4/4899/88 dated 19.06.2003 under Regulation 37(b) of Tamil Nadu Housing Board Service Regulation of 1969: i)That the said K.Dhanasekaran, Bill Collector, Anna Nagar Division (under suspension) joined duty as Sevakh in Tamil Nadu Housing Board on 23.11.1981 in Board's Proceedings No.E2-3/38840/81-7 dated 18.11.1981 by producing bogus Transfer Certificate bearing No.39 with admission No.2246, purported to have been issued by the Corporation High School, Saidapet and cheated the office. iii)That by the act of producing bogus certificate and cheating the office, he violated Section 20 of Tamil Nadu Housing Board Officers and Servants Conduct Regulation 1963 and Tamil Nadu Housing Board Service Regulation 32(A) of 1969. 4d. The respondents also state that to the charge memo, the petitioner furnished his explanation on 03.09.2004. One Mr.S.P.Rajamani, Account Officer, Tamil Nadu Housing Board, was appointed as Inquiry Officer on 21.09.2004, who submitted his report on 29.07.2005 holding that the charges framed against the petitioner were proved and a copy of the Inquiry Officer was communicated to the petitioner on 08.08.2005 and obtained his further representation on 06.09.2005. 4e. According to the respondents, both the charges against the individual are proved holding that the individual has obtained employment by producing bogus certificate. Therefore, it is proved beyond doubt on his own admission and based on documentary evidence. The charges are very serious and call for an exemplary punishment. Hence, the petitioner was awarded with the punishment of dismissal from service with immediate effect vide Proceedings No.DC4/4899/88 dated 10.11.2005. Aggrieved over the above, the petitioner preferred an appeal before the Board against the punishment awarded in proceedings dated 10.11.2005. The Board, after a detailed examination in its Resolution No.12.02-12 dated 08.12.2006, resolved the following: "The Board resolved to reject the appeal petition of https://hcservices.ecourts.gov.in/hcservices/ Thiru K.Dhanasekaran, Bill Collector, since the petitioner had produced bogus transfer certificate at the time of joining the office." 4f. It is submitted by the respondents that thereafter, the petitioner filed an appeal before the Government on 01.03.2007. After examining the matter in detail, the Government, vide its order No.G.O.(1D)No.218, Housing & Urban Development HB1(2) Department dated 19.10.2007 also rejected the further appeal of the petitioer. 4g. It is stated by the respondents that the Enquiry Officer, after conducting a detailed personal enquiry with the petitioner and on scrutiny of the connected records, came to a conclusion that both the charges against the petitioner are held proved based on the Chief Educational Officer's report regarding genuineness of the transfer certificate, purported to have been issued in the name of the petitioner by the Corporation High School, Saidapet, Chennai. While issuing appointment order, the petitioner, as an employee, was duly bound to furnish original and genuine certificate of his education qualification etc. Since the certificate furnished by the petition, on verification, was found to be a bogus one, the petitioner cannot abdicate his responsibility in submitting original records and denying thereof. 4h. The competent Authority, after examining the connected records, came to a conclusion that the charges framed against the petitioner are held proved beyond doubt on his own admission and also based on the documentary evidence. The petitioner's subsequent defence by adverting to the other certificate from Thiagarayar College School is irrelevant to the issue. Therefore, the order of dismissal passed by the Competent Authority and the Appeal petition preferred by the petitioner has been dealt with by the Board (Appellate Authority). The Board, after careful consideration, in its Resolution No.12.02.-12 dated 18.12.2006, rejected the appeal petition. The Government, after careful consideration of the entire issue, also rejected the further appeal of the petitioner, confirming the order of Disciplinary Authority and the Appellate Authority. According to the respondents, considering the gravity of charges, the punishment of dismissal from service was awarded to the petitioner as per the Rules and Regulation and the same are in order and reasonable one. Therefore, they prayed for dismissal of the writ petition. 5. The contention raised by the learned counsel for the petitioner is that the explanation given by the petitioner was not taken into account by the Enquiry Officer. Therefore, the enquiry findings based on the certificate submitted by the father of the petitioner cannot be taken into as a valid evidence to prove https://hcservices.ecourts.gov.in/hcservices/ charges, as his subsequent certificate in original would give a clear evidence. Therefore, the Enquiry Officer's report is perverse and the conclusion arrived at by the Disciplinary Authority as well as the Appellate Authority is not in accordance with law. Learned counsel would further contend that the order of dismissal is excessive and disproportionate. When the petitioner is having a required qualification for the post of last grade Government servant, the orders impugned are arbitrary and violative of the principles of natural justice. It is also her contention that the authorities have not taken into account the explanation submitted by the petitioner and passed the orders without affording any opportunity of personal hearing. 5a. In support of her contention, learned counsel for the petitioner would rely on the following decisions: (i) a decision of the Hon'ble Supreme Court reported in (1995) 6 SCC 749 in the case of B.C. Chaturvedi v. Union of India "HANSARIA, J. (concurring)— I am in respectful agreement with all the conclusions reached by learned brother Ramaswamy, J. This concurring note is to express my view on two facets of the case. The first of these relates to the power of the High Court to do “complete justice”, which power has been invoked in some cases by this Court to alter the punishment/penalty where the one awarded has been regarded as disproportionate, but denied to the High Courts. No doubt, Article 142 of the Constitution has specifically conferred the power of doing complete justice on this Court, to achieve which result it may pass such decree or order as deemed necessary; it would be wrong to think that other courts are not to do complete justice between the parties. If the power of modification of punishment/penalty were to be available to this Court only under Article 142, a very large percentage of litigants would be denied this small relief merely because they are not in a position to approach this Court, which may, inter alia, be because of the poverty of the person concerned. It may be remembered that the framers of the Constitution permitted the High Courts to even strike down a parliamentary enactment, on such a case being made out, and we have hesitated to concede the power of even substituting a punishment/penalty, on such a case being made out. What a difference! May it be pointed out that Service Tribunals too, set up with the aid of Article 323-A have the power of striking down a legislative act. 22. The aforesaid has, therefore, to be avoided and I https://hcservices.ecourts.gov.in/hcservices/ have no doubt that a High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief, which power it undoubtedly has, in view of a long line of decisions of this Court, to which reference is not deemed necessary, as the position is well settled in law. It may, however, be stated that this power of moulding relief in cases of the present nature can be invoked by a High Court only when the punishment/penalty awarded shocks the judicial conscience. 23. It deserves to be pointed out that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice, and if moulding of relief would do complete justice between the parties, the same cannot be ordered. Absence of provision like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo Singh case13 that the High Courts too can exercise power of review, which inheres in every court of plenary jurisdiction. I would say that power to do complete justice also inheres in every court, not to speak of a court of plenary jurisdiction like a High Court. Of course, this power is not as wide as which this Court has under Article 142. That, however, is a different matter. 24. What has been stated above may be buttressed by putting the matter a little differently. The same is that in a case of a dismissal, Article 21 gets attracted, and, in view of the interdependence of fundamental rights, which concept was first accepted in the case commonly known as Bank Nationalisation case14, which thinking was extended to cases attracting Article 21 in Maneka Gandhi v. Union of India15, the punishment/penalty awarded has to be reasonable; and if it be unreasonable, Article 14 would be violated. That Article 14 gets attracted in a case of disproportionate punishment was the view of this Court in Bhagat Ram v. State of H.P.11 also. Now if Article 14 were to be violated, it cannot be doubted that a High Court can take care of the same by substituting, in appropriate cases, a punishment deemed reasonable by it." (ii) another decision of the Hon'ble Supreme Court reported in (2003) 9 SCC 228 in the case of State of U.P. v. Jaikaran Singh https://hcservices.ecourts.gov.in/hcservices/ "This appeal is directed against the judgment of the Allahabad High Court allowing the writ petition filed by the respondent and quashing the order of dismissal from service of the respondent and directing his reinstatement and continuity of service. The respondent who had been initially appointed as a Junior Clerk was promoted as Senior Clerk and then had been deputed to the Secretariat to the Department of Area Development. While continuing on deputation he was repatriated to his parent organisation on 28-9-1988 and he was relieved on 28-12- 1988. But since he did not join his parent organisation, the appropriate authority placed him under suspension vide order dated 1-8-1990. A regular disciplinary proceeding was initiated and certain charges were levelled against him. The respondent did not participate in the enquiry proceedings and ultimately the enquiry officer found him guilty of the charges levelled against him. On the basis of the finding of the enquiry officer, the disciplinary authority passed an order of dismissal from service. Assailing the said order of dismissal, the respondent filed the writ petition. The learned Judge did not accept the plea of the respondent that he had not received the order of relieving and on the other hand the learned Judge found laches on the part of the respondent in not appearing before the enquiry officer concerned in the disciplinary proceedings. But being of the opinion that the order of dismissal is not commensurate with the gravity of the alleged misconduct, he interfered with the order of dismissal and directed reinstatement as well as continuity of service and all other benefits. Subsequent to the judgment of the High Court, the respondent was reinstated vide order dated 12-7-1993 but it was indicated that it would be subject to the final decision to be passed by the Supreme Court in special leave petition which has been filed against the order dated 4- 5-1993. When the matter was listed before this Court on 1-2-1994, this Court granted stay of the reinstatement but, however, said that the payment of subsistence allowance for the period of suspension has to be paid. Thereafter the appellant passed another order dated 17-3- 1994, though the copy filed in this Court indicates it to be of 17-3-1993, revoking the order of reinstatement dated 12-7-1993. The judgment of the Allahabad High Court directing reinstatement is the subject-matter of challenge in this appeal. Mr Markandeya, appearing for the appellant contended that once the Court found the charges to have been established in a disciplinary https://hcservices.ecourts.gov.in/hcservices/ proceeding and there is no legal infirmity in the conduct of the said proceedings then it would not be appropriate in exercise of jurisdiction under Article 226 to interfere with the quantum of punishment. Normally, the Court in exercise of power under Article 226 does not interfere with the quantum of punishment alone if the charges are established against the delinquent and there is no lacuna in the procedure adopted in the departmental proceedings. But at times if the Court feels that the punishment inflicted is grossly unjust and shocks the conscience then in appropriate cases the Court may interfere. Having regard to the facts and circumstances of the present case and also taking into account the fact that the respondent had served the appellant organisation for about more than 12 years, we think the ends of justice would be met if the order of dismissal is altered to one of compulsory retirement. Accordingly, this appeal is allowed to the extent indicated above." (iii) a Supreme Court decision reported in (2009) 7 SCC 248 in the case of Ramanuj Pandey v. State of M.P. 8. In Commr. of Police v. Syed Hussain2, this Court observed that: (SCC pp.176-77, paras 10 & 13) “10. It is one thing to say that order passed by the statutory authority is wholly arbitrary and thus violative of Article 14 of the Constitution and thus liable to be set aside, but it is another thing to say that the discretionary jurisdiction exercised by such authority should not ordinarily be interfered with by a superior court while exercising its power of judicial review unless one or the other ground upon which and on the basis whereof the power of judicial review can be exercised, exists. 13. It is, therefore, beyond any doubt or dispute that the doctrine of proportionality has to be applied in appropriate case as the depth of judicial review will depend on the facts and circumstances of each case.” 9. Admittedly, it is for the disciplinary authority or the administrative authority to decide the quantum of punishment in a case of misconduct and the role of the court is only secondary. But in view of the gravity of the misconduct, namely, the appellant having apprehended Laxmi Narain and registering him under Section 13 of the Lunacy Act, where the disciplinary authority held the appellant guilty for detaining a public servant in police https://hcservices.ecourts.gov.in/hcservices/ post without any reason and removed him from government service, the interference with the imposition of punishment is necessary. 10. In the present matter the appellant, while discharging his duties apprehended Laxmi Narain and registered him under the Lunacy Act without any sufficient reasons. This act of his had indisputably caused harassment to Laxmi Narain and was detrimental to the image of the Police Department, but the same was also not grave enough to punish him with removal from services. The appellant as a Head Constable was bestowed with official duties and while discharging them he went outside its purview, which definitely warrants that his services must be terminated, but as a warning to others and not as a vengeance. 11. While considering the power to interfere with the order of punishment, this Court in Rangaswami v. State of T.N.3, held that this Court, while exercising the