Madras High Court
G.Antony Darwin vs The Appellate Authority Under on 6 February, 2023
W.P.(MD)No.14125 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.02.2023
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.(MD)No.14125 of 2020
and
W.M.P(MD)No.11775 of 2020
G.Antony Darwin ... Petitioner
Vs.
1.The Appellate Authority Under
The Tamil Nadu Shops and Establishment Act /
Joint Commissioner of Labour,
Madurai.
2.The Management
Tamil Nadu Mercantile Bank Limited,
57, V.E. Road,
Thoothukudi - 628 002.
3.The Branch Manager
Tamil Nadu Mercantile Bank Limited,
Paramakudi Branch,
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W.P.(MD)No.14125 of 2020
Paramakudi. ... Respondents
PRAYER : Petition filed under Article 226 of the Constitution of India
praying for issuance of Writ of Certiorarified Mandamus calling for the
records relating to the impugned order in TNSE 04/2017 dated 02.01.2020
on the file of the first respondent and to quash the same and consequently
direct the second respondent management to reinstate the petitioner into
service with all consequential service and monetary benefits.
For Petitioner : Mr.G.Gnanagurunathan
For Respondents : Mr.S.P.Maharajan - for R1
Special Government Pleader
Mr.M.E.Ilango - for R2 & R3
ORDER
This writ petition has been filed to quash the impugned order in
TNSE 04/2017 dated 02.01.2020 on the file of the first respondent and
consequently direct the second respondent management to reinstate the
petitioner into service with all consequential service and monetary benefits.
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W.P.(MD)No.14125 of 2020
2. The learned counsel appearing for the petitioner submitted that
the second respondent had issued a notification for appointment to the post
of Peon and the petitioner had participated in the selection process for the
post of Peon prescribing the basic educational qualification for the post as
minimum 10th standard and maximum 12th standard. Out of sheer
innocence, he had thought that a declaration of pass in 10th standard, but
there was no intention much less wilful intention to suppress or conceal the
factum of he passed in 12th standard with Diploma. A pass in the 10th
standard being sufficient educational qualification for the post of Peon, he
had stated in his application that he has passed 10th standard and produced
the Duplicate Transfer Certificate obtained from the School where he
studied. However, the second respondent Bank also considering his Socio-
economic status, issued an appointment letter, dated 21.01.2013 in favour of
the petitioner. After training, he working from 07.02.2013 onwards in the
third respondent branch as Probationary sub staff. From the date of
appointment, he has been working sincerely to the utmost satisfaction of his
employer, without giving any room whatsoever.
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W.P.(MD)No.14125 of 2020
3. As per the notification of the Bank, the minimum educational
qualification is 10th standard and maximum 12th standard and hence,
having higher qualification of 12th standard is in tune with the notification.
Since the Bank had taken steps to declare his probation, he had produced
all his 12th standard certificates along with Diploma Certificate. Therefore,
the Bank had issued a charge-memo, dated 15.07.2014 alleging that the
petitioner suppressed his application to the appointment to the post of Peon
and produced false 10th standard transfer certificate. Therefore, the
petitioner submitted his explanation on 19.07.2014 and 01.09.2014. An
enquiry was conducted on 15.11.2014 and on the same day, it was
concluded. Thereafter, the Enquiry Officer has drawn a proven minute as
against the petitioner. Subsequently, a show-cause notice was issued, for
which, the petitioner submitted his explanation on 12.01.2015 and
thereafter, second show-cause notice was issued on 19.01.2015 and
submitted his explanation on 23.01.2015. Thereafter, the petitioner was
dismissed from service on 19.02.2015. As against the dismissal order, the
petitioner preferred an appeal before the first respondent and the same was
taken on file as TNSE 04/2017 after condoning delay in filing the appeal
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W.P.(MD)No.14125 of 2020
and after hearing both sides, the first respondent passed the impugned order,
dated 02.01.2020. Challenging the same, the present writ petition is filed
with the aforesaid prayer.
4. The learned counsel for the petitioner further submitted that
though the petitioner acquired Higher Secondary as well as Diploma
Certificate, however, minimum educational qualification for the post
required is 10th standard and maximum is 12th standard and the petitioner
has not suppressed any fact, has acquired qualification 10th standard pass
which was declared in the application and the same is not suppression of
material facts and it is not a false declaration, however, the respondent
arrived at a conclusion that the petitioner made a false declaration in the
application, for which, they passed the impugned termination order, which
is not sustainable one. Accordingly, he prayed for allowing the writ petition.
5. In support of his contention the learned counsel for the
petitioner relied upon the decision of the Hon'ble Apex Court judgment in
Mohd.Riazul Usman Gani and Others Vs. District and Sessions Judge,
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W.P.(MD)No.14125 of 2020
Nagpur and Others reported in 2000(2) SCC - 696, wherein, it has been
held as follows :
"19. We do not know what are the duties
attached to the post of a peon. But perhaps one thing
peons are not required to do the work of sweepers or
gardeners. Qualifications for gardeners and sweepers
have been separately provided in the Recruitment Rules
and the only qualification for both the categories of
these posts is "good physique and also to carry out the
duties attached to the post.''
20. If an employee does not perform the duties
attached to the post disciplinary proceedings can
certainly be taken against him. An employer cannot
throw up his hands in despair and devise a method
denying appointments to a person who otherwise meets
the requisite qualifications on the ground that if
appointed, he would not perform his duties.
Qualification prescribed is minimum. Higher
qualification cannot become a disadvantage to the
candidate."
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W.P.(MD)No.14125 of 2020
6. Per contra, the learned counsel appearing for the respondents 2
and 3 submitted that the petitioner challenged the dismissal order before the
first respondent/Appellate Authority under the Tamil Nadu Shops and
Establishments Act / Joint Commissioner of Labour, Madurai in TNSE 4 of
2017 and the same was dismissed by the first respondent. Challenging the
said order, the present writ petition is filed. The petitioner was already
working temporarily in the Bank and he was aware that the maximum
qualification prescribed for the post of Peon in the Bank is only 12th
standard. Hence, he suppressed the fact about his actual qualification and
mentioned in his application, dated 12.01.2013 as if his qualification
prescribed was only 10th standard pass. Further, the petitioner has also
produced the Diploma Transfer Certificate as if he had only studies upto
10th standard and he has also not even mentioned orally that he is a
Diploma holder. The petitioner was considered for declaration of probation
and confirmation of service and only at that time, he submitted his 12th
standard certificate and also Diploma in Electrical and Electronics
Certificate to the Bank. It is to be noted that the order appointment itself
clearly states that the appointment is liable to be terminated without
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W.P.(MD)No.14125 of 2020
assigning any reason, if it is found that the information furnished is false or
incorrect. Admittedly, the petitioner had submitted not only the false
information but also he had submitted an improper document. Hence, the
appointment itself becomes abinitio void in terms of the conditions
contained in the order of appointment. Hence, he prayed for dismissal of
the writ petition.
7. In support of his contention, the learned counsel for the
respondents 2 and 3 relied upon the judgment in the case of Chief
Manager, Punjab National Bank and another Vs. Anit Kumar Das
reported in 2020 SCC online SC 897, wherein, it has been held as follows :
"7.3 Thus, as held by this Court in the
aforesaid decisions, it is for the employer to determine
and decide the relevancy and suitability of the
qualifications for any post and it is not for the Courts to
consider and assess. A greater latitude is permitted by
the Courts for the employer to prescribe qualifications
for any post. There is a rationale behind it.
Qualifications are prescribed keeping in view the need
and interest of an Institution or an Industry or an
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W.P.(MD)No.14125 of 2020
establishment as the case may be. The Courts are not fit
instruments to assess expediency or advisability or utility
of such prescription of qualifications. However, at the
same time, the employer cannot act arbitrarily or
fancifully in prescribing qualifications for posts. In the
present case, prescribing the eligibility
criteria/educational qualification that a graduate
candidate shall not be eligible and the candidate must
have passed 12th standard is justified and as observed
hereinabove, it is a conscious decision taken by the Bank
which is in force since 2008. Therefore, the High Court
has clearly erred in directing the appellant Bank to allow
the respondent-original writ petitioner to discharge his
duties as a Peon, though he as such was not eligible as
per the eligibility criteria/educational qualification
mentioned in the advertisement.
8. Even on the ground that respondent –
original writ petitioner deliberately, wilfully and
intentionally suppressed the fact that he was a graduate,
the High Court has erred in directing the appellant Bank
to allow the respondent – original writ petitioner to
discharge his duties as a Peon. In the application/bio-
data, the respondent - original writ petitioner did not
mention that he was a graduate. Very cleverly he
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W.P.(MD)No.14125 of 2020
suppressed the material fact and declared his
qualification as H.S.C., whereas as a matter of fact, he
was holding a degree in the Bachelor in Arts. Had it
been known to the bank that he was a graduate, he would
not have at all been considered for selection as a Peon in
the bank. That thereafter when scrutiny of the documents
was going on and when the respondent – original writ
petitioner produced a graduation certificate, at that time,
the bank came to know that he was a graduate and
therefore not eligible and therefore the bank rightly
cancelled his candidature and he was not allowed to join
the bank in the subordinate cadre. Therefore, on the
aforesaid ground alone, the High Court ought not to
have allowed the writ petition when it was a clear case
of suppression of material fact by the original writ
petitioner. An employee is expected to give a correct
information as to his qualification. The original writ
petitioner failed to do so. He was in fact over-qualified
and therefore ineligible to apply for the job. In fact, by
such conduct on the part of the respondent –original writ
petitioner, one another righteous candidate has suffered
for his mischievous act. As held by this Court in the case
of Ram Ratan Yadav (supra), suppression of material
information and making a false statement has a clear
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W.P.(MD)No.14125 of 2020
bearing on the character and antecedents of the
employee in relation to his continuance in service. A
candidate having suppressed the material information
and/or giving false information cannot claim right to
continuance in service. Thus, on the ground of
suppression of material information and the facts and as
the respondent – original writ petitioner even otherwise
was not eligible as per the eligibility criteria/educational
qualification mentioned in the advertisement which was
as per Circular letter No. 25 of 2008 dated 06.11.2008,
the bank rightly cancelled his candidature and rightly
did not permit him to resume his duty."
(Emphasis added)
8. The learned counsel for the respondents 2 and 3 further
submitted that admittedly the petitioner was declared as if 10th standard and
submitted a duplicate Transfer certificate and thereafter, when completing
the probation period, he has given the 12th certificate as well as Diploma
Certificate, which is contrary to the declaration made before the authority, at
the time of submitting the application and the issue arises in the present writ
petition is no longer res-integra. The Hon'ble Apex Court has categorically
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W.P.(MD)No.14125 of 2020
held when the petitioner deliberately, wilfully and intentionally suppressed
the fact that he is a Diploma holder and suppressing the said higher
qualification for acquiring the basic post of Peon which is not eligible as per
the eligible criteria educational qualification. Even as per the eligible
criteria mentioned in the recruitment rules, the minimum educational
qualification is 10th standard and maximum educational qualification is
12th standard, however, the petitioner acquired Diploma Certificate which is
more than 12th standard. Accordingly, he prayed for dismissal of the writ
petition.
9. Heard the learned counsel on either side and perused the
materials available on record.
10. The facts in the present case are not in dispute. Admittedly, the
petitioner had joined the duty as Peon by submitting his application
mentioning that 10th standard pass, whereas, the eligible criteria for the
particular post is minimum 10th standard and maximum 12th standard. The
petitioner did not disclose his educational qualification as Higher Secondary
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W.P.(MD)No.14125 of 2020
qualification as well as Diploma qualification. Suppressing the higher
qualification, he mentioned only 10th standard pass and the same is contrary
to the declaration made by the petitioner at the time of submitting the
application and this Court perused the decision of Hon'ble Apex Court,
which is clearly applied to the present case on hand. Accordingly, applying
the ratio laid down by the Hon’ble Apex Court, this writ petition is liable to
be dismissed.
11. Accordingly, this writ petition is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
06.02.2023
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
RM
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W.P.(MD)No.14125 of 2020
To
1.The Appellate Authority Under
The Tamil Nadu Shops and Establishment Act /
Joint Commissioner of Labour,
Madurai.
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W.P.(MD)No.14125 of 2020
M.DHANDAPANI, J.
RM
W.P.(MD)No.14125 of 2020
06.02.2023
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