The O.A.No.150 of 2002 before the Tamil Nadu Administrative Tribunal is now WP.No.11833 of 2007, before this court.
2. Heard, Mr.G.Ethirajulu, counsel for the petitioner and Tmt. C.K.Vishnupriya, AGP for respondents.
3. The petitioner was appointed as a substitute worker w.e.f 21.08.1985, in the Government Kilpauk Medical College Hospital. Later he was appointed as lascar w.e.f.16.02.1998 in the regular vacancy. As on 16.02.1998, he became over aged. Hence proposal was sent, by the Dean, the second respondent herein, for relaxation of age to the Director of Medical Education, the first respondent herein, for regularisation of the service of the petitioner.
4. In these circumstances, the certificate, given by the petitioner regarding the educational qualification that he studied upto 8th standard was sent to the educational authorities for verification of its genuineness. The District Educational Officer, Chennai-6, in his letter dated 20.08.1999 stated that the certificate was not genuine. As per the certificate, the petitioner studied in the Corporation Middle School, Jones Road, Saidapet, Chennai.
5. The petitioner was issued a memo dated 15.09.1999 asking to show cause as to why he submitted bogus certificate. He submitted an explanation dated 29.09.1999 stating that he studied in the Corporation Middle School, Jaganathapuram, Chetpet, Chennai and the original certificate was destroyed in the flood. Hence he obtained a duplicate through the neighbour as his father is an illiterate person and that happended to be a bogus one. He produced a certificate that he studied in the Corporation Middle School, Chetpet, Chennai.
6. The said certificate was also sent for verification. The District Educational Officer, in his letter dated 30.01.2000 stated that this certificate produced by the petitioner, that he studied in the Corporation Middle School, Chetpet, Chennai is a genuine one.
7.It seems that the second respondent, who is the disciplinary authority, wrote a letter dated 17.04.2000 to the first respondent seeking clarification whether any action is necessary, since the 2nd certificate given by the petitioner was found to be genuine. But, the first respondent sent a letter dated 28.07.2000, instructing the 2nd respondent to take severe disciplinary action, against the petitioner, for having produced the bogus certificate.
8. It seems, again the 2nd respondent, addressed a letter dated 13.09.2000 to the first respondent in this regard, seeking permission to continue the petitioner in service, as the second certificate was proved to be a genuine one. However, the first respondent instructed the 2nd respondent, to take action as per rules, as instructed in his earlier dated 28.07.2000.
9. Left with no alternative, the 2nd respondent issued a charge sheet dated 13.02.2001 under rule 17(b) of the Tamil Nadu Civil Service (Disciplinary & Appeal) Rules. The crux of the allegation was that when he joined service in the year 1985, he produced a bogus certificate. As per the said certificate, he studied in Corporation School, Saidapet, Chennai. In the charge sheet, it is also recorded that the second certificate given by the Petitioner was a genuine one. The petitioner submitted an explanation dated 01.03.2001 denying charges. He explained that since his father is an illiterate person, the first certificate was obtained with the help of a neighbour, as the original certificate was lost in the flood. However, the petitioner stated that he produced the genuine certificate that he studied in the corporation school, Chetpet, Chennai.
10. Not satisfied with the explanation, an enquiry was conducted by Dr.V.Shanmugam, Professor and Head of the Department (Orthopedic), Kilpauk Medical College, Chennai.
11. The enquiry officer submitted a report dated 16.05.2001 that the charges were not established, since the petitioner produced second certificate that he studied in Corporation School, Chetpet, Chennai and that the said certificate was proved to be a genuine one.
12. Again, the second respondent Disciplinary Authority sent the report of the enquiry officer to the first respondent and sought the opinion of the first respondent, along with his letter dated 11.06.2001. But in reply dated 24.12.2001, the first respondent directed the second respondent to terminate the service of the petitioner. In these circumstances, the second respondent passed the impugned order dated 04.01.2002, dismissing the petitioner from service.
13. The petitioner filed O.A.No.150/2002 (WP.No.11833/2007) to quash the aforesaid order dated 04.01.2002 and obtained interim order. By virtue of interim order, he continues in service.
14. The counsel for the petitioner makes the following submissions:
a) The second respondent, being the Disciplinary Authority, ought not to have abdicated its function and sought the view of the first respondent on the action to be taken in the matter; the second respondent, being the Disciplinary Authority, ought to have acted independently.
b) When the second respondent repeatedly wrote letters to the first respondent, suggesting no action is necessary, in view of the 2nd certificate produced by the petitioner was proved to be a genuine one, the second respondent ought not to have initiated Disciplinary Action, based on the instruction from the first respondent.
c) When enquiry officer found charges were not established, the second respondent ought not to have directly passed the dismissal order, in violation of the principle of natural justice, without recording a finding differing from the report of the Enquiry Officer and seeking the views of the petitioner on such finding of guilt.
d) When the enquiry officer held that the charges were not established, the first respondent is not right, in straight away passing the dismissal order, without a tentative disagreement with the findings of the enquiry officer and without hearing the petitioner on such tentative disagreement, as per the decision of the Hon'ble Apex Court in [State Bank of India and others Vs. K.P.Narayanan Kutty] 2003 SCC (L&S) 185.
e) Since, no educational qualification is required to hold the post of lascar, as per the Rules, the second respondent was not justifed in dismissing the petitioner from service, even if the certificate produced by the petitioner was not genuine.
The petitioner has relied on a Division Bench Judgment dated 18.12.2002 of this court in W.A.No.2454 & 2589 of 2002 and a batch of Writ Petitions in support of his submission.
15. On the other hand, the learned Addl. Government Pleader, seeks to sustain the impugned order and contends that the educational certificate produced by the petitioner at the first instance was not genuine one and therefore, the second respondent was justified in passing the impugned order.
16. I have gone through the pleadings and other materials. The aforesaid narration of the facts is made from the vacate stay petition filed by the second respondent. It is very clear from the vacate stay petition filed by the second respondent, that the second respondent was clearly of the opinion that he was not for taking any action against the petitioner. He repeatedly wrote letters to the first respondent as stated above in detail, in view of the second certificate was proved to be a genuine one.
17. The learned counsel for petitioner is therefore right in his submission that the second respondent, being a Disciplinary Authority as per the service rules, ought not have acted as per the direction of the first respondent. The second respondent should have acted independently. It is a different matter, the first respondent as a appellate authority passed an order interfering with the orders of the second respondent. On the other hand, the first respondent unjustly interfered in the Disciplinary jurisdiction of the second respondent, rendering the entire proceedings vitiated.
18. Further, the action of the second respondent, in straight away passing the order dated 04.11.2002 dismissing the petitioner from service is blatantly in violation of the principle of natural justice. Since when he differed from the findings of the enquiry officer, he ought to have recorded a tentative reasons for his disagreement and the petitioner should have been heard on such reasons, and then only the second respondent should decide about passing or not of the order of dismissal. Not following such a procedure would vitiate the impugned order, as held by the Hon'ble Apex Court in the decision reported in 2003 SCC (L&S) 185 cited by the petitioner.
19. The judgment of the Division Bench of this court in WA.No.2454 & 2587 of 2002 & a batch referred to above squarely covers the matter. The impugned order itself notes that the post of lascar does not require any educational qualification in the following words:
VERNACULAR (TAMIL) PORTION DELETED
20. Hence, all the submissions of the learned counsel for petitioner are well founded. In the circumstances, the dismissal of the petitioner, particularly when he produced the second certificate that he had studied upto 8th standard in the corporation school, Chetpet and that certificate was found to be a genuine one, was totally illegal and not justified.
21. For all the aforesaid reasons, the Writ Petition is allowed and the impugned order is Quashed. No costs.
tsh To
1.The Director of Medical Education Chennai.
2.The Dean, The Government Kilpauk Medical College Hospital, Chennai 600 010