IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.3.2010 C O R A M : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.No.3581 of 2007 (O.A.No.2176 of 2001) B.Gnanavel .. Petitioner -vs- The Principal, Government Women's Arts College, Salem-8. .. Respondent PRAYER : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus to call for the records of the respondent made in proceedings Na.Ka.No.114/A2/98, dated 29.9.2000 and to quash the same and consequently direct the respondents to extend all benefits both service and monetary including backwages. For petitioner :: Mr.L.Chandrakumar For respondent :: Mr.K.H.Ravikumar, Government Advocate ***** O R D E R The petitioner filed O.A.No.2176 of 2001 before the Tamil Nadu Administrative Tribunal seeking to challenge the order, dated 25.9.2000 passed by the respondent removing him from service. By the impugned order, the petitioner was removed from service pursuant to a charge memo issued under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. Pending the Original Application, the petitioner did not have the benefit of any interim order. Pursuant to the abolition of the Tribunal, the matter stood transferred to this Court and re-numbered as W.P.No.3581 of 2007. 2. The petitioner was appointed on compassionate grounds on account of the death of his father Late Balakrishnan, who was working as a Marker. The said Balakrishnan passed away on 12.8.1994. Subsequent to his appointment, on 06.4.1998, the petitioner was brought under the time scale of pay with effect from 04.12.1997 and his salary was fixed at the scale of pay of Rs.750-945. The post of Marker was created by the Government in https://hcservices.ecourts.gov.in/hcservices/ G.O.Ms.No.602, Higher Education Department, dated 04.12.1997. At that time, it is claimed that the petitioner gave a school certificate stating that he had completed VII Standard. Therefore, a charge memo was issued to the petitioner on the ground that the Record Sheet given by him was forged and the petitioner had only completed V Standard, whereas he has given the certificate as if he had undergone studies upto VII Standard. 3. The petitioner denied the charges vide his explanation, dated 20.12.1999. Thereafter, an enquiry was conducted on 24.4.2000 by the subsequent Principal of the College. It was on the basis of the said enquiry, the petitioner was removed from service. In the order of removal, it was also stated that he has corrected the Educational Certificate twice and he was not appointed through Employment Exchange. He was not sponsored through the Employment Exchange for getting the appointment and that while he was in the playground during 1999 in the sports room, one girl had lost her gold bangle and she was suspecting the petitioner. It is not clear as to how these issues can come up in the final order when that was not the subject matter of the charge memo. Further, the petitioner was appointed on compassionate grounds. Therefore, sponsorship from Employment Exchange also need not be a relevant criterion. The only question was whether he had made corrections in the Educational Certificate issued by the school. 4. Despite notice being served on the respondent, they have not filed any counter affidavit so far. When the matter came up, a brief history was given by the respondent, dated 09.3.2010. In that it was stated that the petitioner was suspended on 09.5.2000 after calling for an explanation and the final enquiry was conducted against him and the Headmaster of Anderson School was also present in the enquiry and it was stated that only the V Standard Record Sheet was the original. Neither the minutes of the enquiry proceedings nor a report made by the Principal is produced. On the contrary, the final order itself contains the nature of evidence and the final decision taken by the respondent as well as the punishment. 5. Mr.L.Chandrakumar, learned counsel for the petitioner states that the enquiry allegedly conducted by the respondent does not satisfy the requirement under Article 311(2) of the Constitution. Once a charge memo is issued and the petitioner has replied, then proper enquiry should have been conducted and the petitioner is not aware of the nature of evidence recorded including the provisional decision arrived at by the disciplinary authority. The learned counsel also produced the latest decision of the Supreme Court in Kamal Nayan Mishra -vs- State of Madhya Pradesh and others reported in (2010) 2 SCC 169. In more or less similar circumstances, the Supreme Court held that even in cases where a Government Servant gives a wrong information in his attestation form and vouchsafed the information provided by him under the form is correct and subsequently it was found to be a false information, even then, no termination can be made without notice. Even if the attestation form contains a clause that no further notice will be issued, that by itself will not take away the guarantee given under Article 311(2) of the https://hcservices.ecourts.gov.in/hcservices/ Constitution. In paragraphs 21 to 24 of the said decision, the Supreme Court has held as follows:- ''Para 21.: No term in the attestation form, nor any consent given by a government servant, can take away the constitutional safeguard provided to a government servant under Article 311 of the Constitution. Para 22. : A seven-Judge Bench fo this Court held in Moti Ram Deka -vs- North East Frontier Railway (AIR 1964 SC 600) as follows while negativing a contention that a person who enters service by executing a contract containing a rule contrary to Article 311, with open eyes, cannot be permitted to challenge the validity of the said rule or the contract: (AIR p.611, paras 31-32) ''31. ... In our opinion, this approach may be relevant in dealing with purely commercial cases governed by rules of contract; but it is wholly inappropriate in dealing with a case where the contract or the Rule is alleged to violate a constitutional guarantee afforded by Article 311(2); ... 32. Let us then test this argument by reference to the provisions of Article 311(1). Article 311(1) provides that no person to whom the said Article applies shall be dismissed or removed by an authority subordinate to that by which he was appointed. Can it be suggested that the Railway Administration can enter into a contract with its employees by which authority to dismiss or remove the employees can be delegated to persons other than those contemplated by Article 311(1)? The answer to this question is obviously in the negative, and the same answer must be given to the contention that as a result of the contract which embodies the impugned Rules, the termination of the railway servant's services would not attract the provisions of Article 311(2) though, in law, it amounts to removal." Para 23.: We also find from an examination of the terms of the attestation form that termination without notice or inquiry was contemplated only in the context of furnishing false information in and around the time of the appointment. Note (1) of the preamble warns that: ''the furnishing of false information or suppression of any factual information in the attestation form would be a disqualification and is likely to render the candidate unfit for employment" https://hcservices.ecourts.gov.in/hcservices/ Similarly, the certificate at the end of the attestation form states that: ''I am not aware of any circumstances which might impair my fitness for employment under the Government. I agree that if the above information is found false or incomplete in any material respect, the appointing authority will have a right to terminate my services without giving notice or showing cause". Be that as it may. Para 24. : The termination of the appellant without an inquiry or hearing was illegal and invalid. In the normal course, we would have set aside the termination and directed reinstatement with consequential benefits, reserving liberty to the employer to initiate disciplinary proceedings. But the peculiar facts of this case require us to adopt a slightly different approach to do complete justice between the parties." 6. In the light of the above, the writ petition stands allowed. The impugned order stands set aside. No costs. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar js To The Principal, Government Women's Arts College, Salem-8. + 1 C.C. To Mr. L. Chandrakumar Advocate SR.NO.16827 + 1 C.C. To Government Pleader SR.NO.17051 W.P.No.3581 of 2007 (O.A.No.2176 of 2001) NSM[CO] https://hcservices.ecourts.gov.in/hcservices/