IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 13..5..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. Nos. 27426 and 35596 of 2003; W.P. Nos. 19958, 29028, 29029, 29550, 29551, 30231 to 30233, 35796 and 39735 of 2004; W.P. Nos. 4904 and 19610 of 2005; and W.P. Nos. 1456 and 9992 of 2007 and W.P.M.P. No. 43252 of 2003 in W.P. No. 35596 of 2003, W.P.M.P. Nos. 24025 and 24026 of 2004 and W.V.M.P. No. 1676 of 2005 in W.P. No. 19958 of 2004, W.P. Nos. 35260 and 35261 of 2004 and W.V.M.P. Nos. 141 of 2005 and 478 of 2006 in W.P. No. 29028 of 2004, W.P.M.P. Nos. 35263 and 35264 of 2004 and W.V.M.P. No. 477 of 2006 in W.P. No. 29029 of 2004, W.P.M.P. Nos. 35879 and 35880, 35882 and 35883 of 2004 and W.V.M.P. Nos.2409 and 2410 of 2004 in W.P. Nos. 29550 and 29551 respectively, W.P.M.P. Nos. 36699, 36701 and 36703 of 2004 in W.P. Nos. 30231 to 30233 of 2004 respectively, W.P.M.P. Nos. 47368 and 47369 of 2004 in W.P. No. 39735 of 2004, W.P.M.P. No. 5437 of 2005 in W.P. No. 4904 of 2005, W.P.M.P. No. 21265 of 2005 in W.P. No. 19610 of 2005 and M.P. Nos. 2 and 3 of 2007 in W.P. No. 1456 of 2007 and M.P. Nos. 2 to 4 of 2007 in W.P. No. 9992 of 2007 W.P. No. 27426 of 2003: C. Krishnan .. Petitioner 1.R.Venkataraman .. Petitioner in WP 35596 of 2003 2.M.Raja .. Petitioner in WP 19958 of 2004 3.S.Govindaraju .. Petitioner in WP 29028 of 2004 4.S.Selvam .. Petitioner in WP 29029 of 2004 https://hcservices.ecourts.gov.in/hcservices/ 5.N.Srinivasan .. Petitioner in WP 29550 of 2004 6.A.Thangavel .. Petitioner in WP 29551 of 2004 7.K.Rajagopal .. Petitioner in WP 30231 of 2004 8.A.M.Ammasi .. Petitioner in WP 30232 of 2004 9.K.Kannan .. Petitioner in WP 30233 of 2004 10.C.Manickam .. Petitioner in WP 35796 of 2004 11.G.Kennedy .. Petitioner in WP 39735 of 2004 12.C.Palanisamy .. Petitioner in 4904 of 2005 13.P.Elango .. Petitioner in 19610 of 2005 14.N.Kandasamy .. Petitioner in WP 1456 of 2007 15.P.Palanivel .. Petitioner in WP 9992 of 2007 vs. 1. The District Educational Officer (General) Cherry Road Salem 2. The General Manager Tamil Nadu State Transport Corporation (Salem Division I) Ltd. Ramakrishna Road Salem .. Respondents The General Manager/Managing Director, Tamil Nadu State Transport, Corporation (Salem Division I) Ramakrishna Road, Salem ...Respondent in WP's.35596/2003, 19958/04, 29028/04, 29029/04, 29550/04, 29551/04, 30231/04, 30232/04, 30233/04, 35796/04, 39735/04, 4904/05, 19610/05, 1456/07 and 9992/07 https://hcservices.ecourts.gov.in/hcservices/ The Asst Primary Education Officer, Kadaiyampathi Salem District. The District Primary Education Officer, Behind district Elementary, Salem ...Respondents in WP.19958/04 The District Educational Officer, Krishnagiri Dharmapuri District. ..Respondent in WP.29028/04 The District Educational Officer, Namakkal, Namakkal District. ...Respondent in WP.29029/04 29551/04 The District Educational Officer, Salem District Salem. ...Respondent in WP.29550/04 The Chief Educational Officer, Salem District. ...Respondents in WP.30231/04, 30232/04, 30233/04, 35796/04 The District Educational Officer, Villupuram, Villupuram Dist. ...Respondent in WP.No.39735 of 2004 The Secretary, Board of Secretary Education Department Govt. Exam, College Road, Chennai. ...Respondent in WP.19610/05 The District Educational Officer, Salem District near Govt Arts College, Salem The Head Master, Nellambal Subramaniam Higher Secondary School, Suramangalam, Salem ...Respondent in WP.1456/07 Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus calling for the records from the 1st respondent relating to the order in Ref. No. Na. Ka. No. 01162/B4/03 dated 16.7.2003 and direct the second respondent to cancel the charge memo in Ref. K.V. 412 / 19804 / D3 / TSTC / 2003 dated 12.8.2003. https://hcservices.ecourts.gov.in/hcservices/ WP.35596 of 2003 : Issue a Writ of Certiorari calling for the records from the respondent relating to the Order in Ku.No.497/24332/D3/TSTC/2003 dated 29.11.2003 WP.19958 of 2004: to issue a Writ of Certiorari calling for the records from the 1st respondent relating to the order in Na.Ka.116/A.1/2003 dated 19.1.2004. WP.29028 of 2004: to issue a Writ of Certiorarified Mandamus calling for the records from the 1st respondent relating to his order O.Mu.No.2954/03 dated 3.6.2003 and quash the said order dated 3.6.2003 and direct the 2nd respondent to cancel the Charge Memo bearing No.277/15330/D.3/TNSTC/2003-2004 dated 23.9.2004. WP.No.29029 of 2004: to issue a Writ of Certiorarified mandamus calling for the records from the 1st respondent relating to the order bearing No.Na.Ka.No.1659/AA2/2003 dated 7.3.2003 and quash the Said order dated 07.03.2003 and direct the 2nd respondent to cancel the charge memo Ku.No.218/7745/D4/TSTC/2003-2004 dated 23.09.2004. WP.29550 of 2004 A Writ of Certiorarified Mandamus calling for the records from the 1st respondent relating to his order Na.Ka.No.01162/B4/03 dated 25.09.2003 and quash the said order dated 25.09.2003 and direct the 2nd respondent to cancel the order made in A19-D1/581,D3/TNSTC/2004 dated 25.09.2004 confirming the order of dismissal bearing Pa.Mu.No.581/26201/D3/TSTC/2003-3 dated 22.5.2004 and reinstate the petitioner in service with all the benefit. WP.29551 of 2004 A writ of Certiorarified Mandamus calling for the records transfer 1st respondent relating to his order Na.Ka.No.3620/AA2/2003 dated 16.09.2003 and quash the said order dated 16.09.2003 and direct the 2nd respondent to cancel the order made in A-18-D1/675- D4/TNSTC/2004 dt 25.09.2004 confirming the order of dismissal bearing Pa.Mu.No.675/24734/D4/TNSTC/2003-3 Dated 26.6.2004 and reinstate in petitioner in service with all benefits award costs. WP 30231/04, 30322 of 2004 and 30323 of 2004 to issue a writ of certiorari calling for the records relating to the impugned order passed by the 1st respondent in Na.Ka.No.3177/B3/2003, dated 08.04.2003 and the consequential charge memo issued by the 2nd respondent in Ku.No.197,198 and 200/ 11350/D3/TNSTC/2003-04 dated 24.09.2004 and quash the same, respectively. https://hcservices.ecourts.gov.in/hcservices/ WP 35796 of 2004 to issue a writ of certiorarified mandamus calling for the records of the 1st respondent in his proceedings in ref.No.Pa.Mu.No.99/11350/D1/TSTC/2003 dated 18.8.2003 and quash the same as illegal improper against the principles of natural justice and direct the 1st respondent to reinstate the petitioner in service with all the service benefits. WP 39735 of 2004 To issue a Writ of Certiorari, calling for the records from the 1st respondent relating to the order Na.Ka.No.1432/B5/2003 dt.10.11.2004 and quash the said order dated 10.11.2004 award costs. W.P.4904 of 2005 To issue a Writ of Certiorari calling for the records of the respondent culminated in and by his proceedings in K.No.199/11350/T3/TNSTC/2004 dt.29.1.05 and quash the same. W.P.19610 of 2005 To issue a Writ of Certiorari calling for the records from the 1st respondent relating to the order bearing No.Na.Ka.No.338440/D2/.2 2004 dt.23.2.2005 and quash the said order dated 23.2.2005 and award costs. W.P.No.1456 of 2007 To issue a Writ of Certiorarified mandamus calling for the records from the 1st Respondent relating to the order in Ka.No.3488/B.3/2006 dt.24.08.2006 and quash the said order dt.24.08.2006 and direct the 3rd respondent to cancel the charge memo No.Ku.No.615 33556 – D4 – TSTC-2006 dt.6.10.2006 and award costs. WP 9992 OF 2007: to issue a writ of Certiorarified Mandamus calling for the records connected with the order of dismissal dated 13.11.2003 passed by the 1st respondent as confirmed by the Dy.Commissioner of Labour (Concillation) in AP No.465 of 2003 dt. 5.8.2005 dated 13.11.2003 quash the order and also direct the respondents Managementto reinstate the petitioner. For Petitioner : Mr. S. Ayyathurai For Respondent 1 : Mr. Pa. Kadirvel, GA For Respondent 2 : Mr. C. Kanakaraj https://hcservices.ecourts.gov.in/hcservices/ C O M M O N O R D E R Heard the arguments of M/s. S. Ayyathurai, M.M. Sundaresh, V.Chandrasekar, S. Girija, V. Thiruppathi, learned counsels appearing for the petitioners, Mr. Pa. Kadirvel, learned Government Advocate representing the officials of the Department of Education, Mr. C. Kanakaraj, learned counsel appearing for the respondent Transport Corporations and M/s Sarvabhauman Associates appearing for the second respondent in W.P. No. 1456 of 2007 and have perused the records. 1.1. The arguments were heard in respect of these writ petitions on three different dates. Since the subject matter of all the writ petitions are similar, they are disposed of by a common order. 2. Backdrop:- 2.1. All the 16 writ petitioners are working as Drivers in the State Transport Corporation. They have joined the services on various dates and many of them were confirmed in their services and have also put in more than ten years of service. 2.2. The respondent State Transport Corporation is a Government company registered under Section 617 of the Companies Act. The service conditions of the workmen employed in these transport Undertakings are governed by the certified Standing Orders framed in respect of each of the Corporation. However, due to re-organisation, many of the District level Corporations have been disbanded and merged with zonal Corporations. The Board of Directors of the erstwhile Corporations have framed Service Rules and they have also prescribed, by Board Resolution, the minimum educational qualification for various posts under the Corporations. For the post of Driver, it is essential that an aspirant should have passed VIII Standard with Heavy Vehicle Licence and a Public Driver Badge. 2.3. The petitioners herein submitted certificates regarding their educational qualifications either at the time of joining service or at the time of confirmation of their service. In most of the cases, they have registered their names with the Employment Exchanges and their names were also sponsored for employment with the respondent Corporation. It is not clear as to why the Corporations did not verify the educational certificates produced by the petitioners soon after their joining in the duty. May be after sometime, on some complaints, the educational certificates produced by the petitioners were forwarded to the appropriate Education Department officials, depending upon the certificate issuing authority. Almost in 15 cases, the petitioners have produced certificates from Schools in Salem District. Therefore, they were sent for verification either by the District Educational https://hcservices.ecourts.gov.in/hcservices/ Officer, Salem or Assistant Educational Officer of the respective units. 2.4. In W.P. 39735 of 2004, it was sent for verification by the District Educational Officer, Villupuram as the school in which the petitioner in that writ petition (G. Kennedy) claims to have studied in Kallakurichi. In W.P. 19610 of 2005, as the petitioner (P.Elango) had produced a S.S.L.C. Certificate got as a private candidate, it was sent for verification by the Secretary of the Board of Government Examinations. 2.5. In all these cases, the concerned authorities have informed the respondent Corporations that the School Certificates and the Record Sheets produced by them were bogus. They were also informed that the petitioners neither studied in those schools nor they were promoted to the standards in which they had made claims. 2.6. Immediately upon receipt of these communications, the Corporations issued show cause notices on the basis of the reports obtained from the respective Schools / Department officials and called upon the petitioners to show cause as to why action should not be taken against them for having obtained employment on production of false certificates. In some cases, the petitioners demanded proof for the allegation. When a final show cause notice was given without conducting enquiries, some of them approached this Court with the following writ petitions. 3. Previous Litigations:- 3.1. S. Govindaraju (Petitioner in W.P. No. 29028 of 2004) filed W.P. No. 29389 of 2003 and S. Selvam (Petitioner in W.P. No.29029 of 2004) filed W.P. No. 29390 of 2003 challenging the show cause notices. This Court, by an order dated 08.9.2003, set aside the said order and gave liberty to proceed in accordance with law. 3.2. M. Srinivasan (Petitioner in W.P. No. 29550 of 2004) filed W.P. No. 22618 of 2004 and A. Thangavel (Petitioner in W.P. No. 29551 of 2004) filed W.P. No. 22617 of 2004 challenging the dismissal orders passed against them. Both the writ petitions were dismissed by this Court vide order dated 06.8.2004 and they were directed to file appeals before the Managing Director as per the Service Rules. After filing the appeals, which were also dismissed, the two petitioners have once again moved this Court with the present writ petitions and have also obtained interim orders against the termination and are continuing in service. 3.3. Rajagopal (Petitioner in W.P. No. 30231 of 2004) earlier filed a writ petition being W.P. No. 25346 of 2003; Mr.A.M.Ammasi (Petitioner in W.P. No. 30232 of 2004) filed W.P. No. 25344 of 2003 and K.Kannan (Petitioner in W.P. No. 30233 of 2004) filed W.P. No. https://hcservices.ecourts.gov.in/hcservices/ 25345 of 2003 challenging the show cause notices given to them. This Court, by an order dated 29.7.2004, allowed the writ petitions and permitted the Transport Corporation to proceed with the enquiry in accordance with law. Subsequently, the Corporation issued charge-memos dated 24.9.2004 against the three petitioners and they have once again come forward with the present writ petitions and have obtained stay order. 3.4. Mr. C. Palanisamy (W.P. No. 4904 of 2005) has earlier filed the following three writ petitions:- (a) W.P. No. 16976 of 2003 [Disposed on 23.6.2003] (b) W.P. No. 23543 of 2003 [Disposed on 29.10.2003] (c) W.P. No. 14749 of 2004 [Disposed on 25.01.2005] After all these exercises, when he was given a fresh enquiry notice dated 29.01.2005, he has, once again, filed the present writ petition and had also obtained an interim stay order. 3.5. Mr. C. Manickam (W.P. No. 35796 of 2004) was dismissed from service by an order dated 18.8.2003. As against the said dismissal, he had raised an industrial dispute under Section 2 A (2) of the Industrial Disputes Act, 1947 [for short, 'I.D. Act']. Since the conciliation proceedings failed, he had moved the Labour Court with a claim petition and his dispute was taken on file by the Labour Court, Salem, as I.D. No. 34 of 2004 and it is pending adjudication. Notwithstanding the said fact, he has come forward to file the present writ petition and made an unsuccessful attempt to get an interim order. 3.6. Mr. P. Palanivel (W.P. No. 9992 of 2007) was dismissed from service by an order dated 13.11.2003. Since an industrial dispute was pending conciliation before the Deputy Commissioner of Labour (Conciliation), approval for his dismissal was sought for by the respondent Transport Corporation by filing petition under Section 33(2)(b) of the I.D. Act. The said Conciliation Officer, by his order dated 05.8.2005, granted approval in A.P. No. 465 of 2003. Thereafter, the petitioner raised an industrial dispute before the Labour Officer, Salem and that conciliation ended in failure. On the strength of the same, instead of filing a claim statement before the Labour Court, the petitioner has come before this Court challenging the dismissal order dated 13.11.2003 in the year 2007 and has also obtained an interim stay. 4. Contentions raised by the petitioners:- The learned counsels for the petitioners contended that there was an enormous delay in framing the charges and hence, the charge- memos to be quashed. They also submitted that filing writ petitions at the stage of show cause notices is maintainable as the basis for such notices were on the basis of unsubstantiated allegations. They contended that there is no minimum educational qualification prescribed under the Standing Orders and hence, the https://hcservices.ecourts.gov.in/hcservices/ proceedings are vitiated. The further contention was that no elaborate enquiry was conducted and the material produced are not proved in the manner known to law. They also sought for lenient treatment in case the enquiry goes against them. They also submitted that there is no need to avail other alternate remedies as they are not efficacious. It is, therefore, necessary to deal with each of the issues raised herein. 5. Whether the proceedings are liable to be quashed on grounds of delay? 5.1. Learned counsel for the petitioners contended that there was a long delay in initiating disciplinary action and, therefore, on that ground, the show cause notices / charge-memos should be quashed. 5.2. In the decision reported in 1995 (3) SCC 134 [Deputy Registrar, Co-operative Societies, Faizabad v. Sachindra Nath Pandey and others], the Supreme Court held that the delay in framing charge cannot be a ground to interfere with the charge memo and the relevant passage found in paragraph 7 of the said judgment is extracted below: Para 7: "On a perusal of charges, we find that the charges are very serious. We are, therefore, not inclined to close the matter only on the ground that about 16 years have elapsed since the date of commencement of disciplinary proceedings, more particularly when the appellant alone cannot be held responsible for this delay...." 5.3. Further, in the decision reported in 1996 (3) SCC 157 [Secretary to Government, Prohibition and Excise Department v. L.Srinivasan], the Supreme Court has held that the charge cannot be quashed only on the ground of delay and any finding recorded by the Court will prejudice the enquiry. The Supreme Court has also pulled up the member of the Administrative Tribunal for having interfered with the charge memo as if the Tribunal is the appellate authority. The following passage found in paragraph 3 of the said judgment makes the position very clear. Para 3: "We are informed that charge-sheet was laid for prosecution for the offences of embezzlement and fabrication of false records etc. and that the offences and the trial of the case is pending. The Tribunal had set aside the departmental enquiry and quashed the charge on the ground of delay in initiation of disciplinary proceedings. In the nature of the charges, it would take a long time to detect embezzlement and fabrication of false records which should be done in secrecy. It https://hcservices.ecourts.gov.in/hcservices/ is not necessary to go into the merits and record any finding on the charge levelled against the charged officer since any finding recorded by this Court would gravely prejudice the case of the parties at the enquiry and also at the trial. Therefore, we desist from expressing any opinion on merit or recording any of the contentions raised by the counsel on either side. Suffice it to state that the Administrative Tribunal has committed grossest error in its exercise of the judicial review. The member of the administrative Tribunal appears to have no knowledge of the jurisprudence of the service law and exercised power as if he is an appellate forum dehors the limitation of judicial review. This is one such instance where a member had exceeded his power of judicial review in quashing the suspension order and charges even at the threshold. We are coming across such orders frequently putting heavy pressure on this Court to examine each case in detail. It is high time that it is remedied." [Emphasis added] 5.4. Very recently, the Supreme Court in its decision reported in 2007 AIR SCW 1639 [Government of A.P. And others v. V. Appala Swamy] has held the parameters of interfering with a charge sheet on the ground of delay in paragraphs 10, 12, 13, which read as follows: Para 10: "So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard and fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are: (1) Where by reason of the delay, the employer condoned the lapses on the part of the employee. (2) Where the delay cause prejudice to the employee. Such a case of prejudice, however, is to be made out by the employee before the Inquiry Officer." https://hcservices.ecourts.gov.in/hcservices/ Para 12: "Learned counsel appearing on behalf of the respondent, however, placed strong reliance on a decision of this Court in M.V.Bijlani vs. Union of India & Others (2006 (5) SCC 88). That case was decided on its peculiar facts. In that case, even the basic material on which a departmental proceedings could be initiated was absent. The departmental proceedings was initiated after 6 years and continued for period of 7 years. In that fact situation, it was held that the appellant therein was prejudiced. Para 13: "Bijlani (Supra), therefore, is not an authority and, in fact, as would appear from the decision in P.D.Agarwal (Supra), for the proposition that only on the ground of delay the entire proceedings can be quashed without considering the other relevant factors therefor." Therefore, in the light of the above, the contentions of the learned counsel for the petitioners must fail. 6. Whether a writ at the stage of show cause notice or charge-memo is maintainable:- 6.1. Learned counsel for the petitioners contended that in as much as the respondent Corporation had relied upon the report received from the authorities of the Education Department and blindly based their final conclusions upon the said report, the show cause notices should be quashed. When a show cause notice suffers from material irregularity, the Courts have power to quash such an order and, therefore, this Court should come to the rescue of the petitioners. 6.2. They also relied upon an unreported decision of a Division Bench of this Court in W.A. No. 3713 of 2003, disposed on 11.11.2003. In that case, the Division Bench quashed the order passed by the education departmental authorities on the ground that no opportunity was given to the aggrieved person before cancelling the mark list. In the present case, it was not a case of cancellation and it was merely a communication informing the respondent Corporation about the true nature of the certificates produced by the petitioners. It is pursuant to the same, the Corporations have issued show cause notices / charge-memos. In some cases, they have appointed Enquiry Officers also. In some other cases, final dismissal orders have been issued. 6.3. In the present batch of cases itself, the Court in the earlier round of litigations (set out in paragraph 4 above) granted https://hcservices.ecourts.gov.in/hcservices/ liberty to the Corporation to proceed with the enquiries. The conduct of the petitioners in once again coming with a second round of litigation even at the stage of show cause notice is highly reprehensible and it is nothing but a raid on the Court. 6.4. Further, the Supreme Court in its decision reported in 1987 (2) SCC 179 [State of U.P. v. Brahm Datt Sharma and another] dealt with the power of the Court in dealing with a charge memo at the show-cause stage and the following passage found in paragraph 9 will make the position clear. Para 9: "The High Court was not justified in quashing the show cause notice. When a show cause notice is issued to a government servant under a statutory provision calling upon him to show cause, ordinarily the government servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford opportunity of hearing to the government servant and once cause is shown it is open to the Government to consider the matter in the light of the facts and submissions placed by the government servant and only thereafter a final decision in the matter could be taken. Interference by the court before that stage would be premature, the High Court in our opinion ought not have interfered with the show cause notice." 6.5. The Supreme Court vide its judgment reported in (2004) 3 SCC 440 [Special Director and another Vs. Mohd. Ghulam Ghouse and another], in paragraph 5 observed as follows: Para 5: "This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of parties. Unless the High Court is satisfied that the show- cause notice was totally non-est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioners should invariably be directed to respond to the show-cause notice and