Madras High Court
K.Sekar (Deceased) vs The State Of Tamil Nadu on 22 October, 2024
W.P. No.3724 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.10.2024
Coram:
THE HONOURABLE MR. JUSTICE C.KUMARAPPAN
W.P. No.3724 of 2020
1.K.Sekar (Deceased)
2.Chindamani
3.Aravindan
4.Krishnakumar
5.Ramayee ... Petitioners
(P2-P5 substituted as LRs of deceased
sole petitioner vide order dated 13.07.2023
made in WMP.No.23380/2021 in
W.P.No.3724/2020 by JSNPJ)
Vs.
1.The State of Tamil Nadu,
Rep by its Secretary,
Public Work Department,
Fort St.George, Chennai – 600 009.
2.The Engineer in Chief,
PWD (WRO) Chennai Region,
Chepauk,
Chennai – 600 005.
3.The Chief Engineer,
PWD (WRO) Chennai Region,
Chennai – 600 005.
1/19
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W.P. No.3724 of 2020
4.The Special Chief Engineer,
PWD,
O/o.The Superintending Engineer,
PWD (WRO) Vellar Canal Circle,
Cuddalore – 607 001. ... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India,
to issue a Writ of Certiorarified Mandamus to call for the records of the order
passed by the 3rd respondent in Proceedings Order No.E2(2)/639/2017 dated
04.06.2019 and quash the same and consequently direct the respondents to
reinstate the petitioner.
For Petitioners : Mr.W.M.Abdul Majeed
For Respondents : Mr.G.Nanmaran
Special Government Pleader
ORDER
The instant Writ Petition has been filed challenging the order of
punishment of dismissal passed against the petitioner vide order dated
04.06.2019.
2. The learned counsel for the petitioners would vehemently submits
that the 1st petitioner was appointed in the PWD Department as Irrigation
Assistant by way of compassionate appointment dated 18.03.1997. He
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would further contend that, due to the penury situation of the family of the 1st
petitioner, after the demise of his father, he was given a compassionate
appointment. He would further contend that, without following due
procedures and without even providing an adequate opportunity, and in
violation of principles of natural justice, an order of punishment was passed
against the petitioner. It is the contention of the petitioners that, though the
1st petitioner was appointed compassionately, he was not treated with
compassion and that the alleged bogus certificate was not at all proved in the
manner known to law, and he would further states that he do not know the
veracity of those certificate, as it was obtained by his uncle. It is in this
background, the learned counsel for the petitioners would contend that order
of punishment of dismissal is shockingly disproportionate and liable to be set
aside. To buttress the above contentions, the learned counsel for the
petitioners relied the following decisions:-
(i)Kashinath Dikshita Vs. Union of India (UOI)
and Ors in Civil Appeal No.2571 of 1977 and
(ii)State of U.P and Ors Vs. Saroj Kumar Sinha
in Civil Appeal No.254 of 2008.
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3. Per contra, learned Government Advocate would contended that the
official respondent has followed all due procedures, and that the petitioner
was provided with adequate opportunity to defend himself. It is the further
contention of the learned Government Advocate that on receipt of the petition
from the petitioner's brother's son, and after an enquiry, misconduct of
furnishing bogus certificate by the 1st petitioner had come to light. It was
further contended that due opportunities were provided to the petitioner, and
only based upon the material available before the Enquiring Authority, he
submitted a positive report.
4. Considering the gravity of the charges, the disciplinary authority
imposed proportionate punishment of dismissal. Therefore, under Article
226, this Court cannot sit as an appellate Court to go into the proportionality
of the punishment. Hence, prays for dismissal of the writ petition.
5. I have given my anxious consideration to the submissions made by
either side.
6. The foremost submission put forth by the learned counsel for the
petitioners is that, though he was served with a Charge Memorandum dated
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03.05.2017, the annexure which allegedly contains 250 pages, and the
documents relied by the Management to sustain charge was not furnished.
But, to contradict such argument the learned Government Advocate has
submitted a letter addressed by the 1st petitioner to the Enquiry Officer
requesting him to furnish the above documents vide his letter dated
28.07.2017. On such request the documents requested by the petitioner was
provided to him on 17.08.2017. In evidence thereof, the 1 st petitioner himself
has acknowledged the receipt of the said documents. Accordingly, the prime
contentions of the learned counsel for the petitioners that the material
documents not furnished, has been disproved.
7. Apart from that, it is the further contention of the learned counsel for
the petitioners that no adequate opportunity was provided to him to defend
the case. In this regard, the learned Government Advocate has submitted a
type set of papers. Wherein, the 1st petitioner on 01.09.2017 has expressed
his satisfaction, towards the provision of opportunity to defend the case
effectively and to access to the documents, and towards the impartiality of
the Enquiry officer. The petitioner has given written acknowledgement to
that effect. Therefore, the contentions that the 1st petitioner was not provided
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with due opportunity to defend the charge, is also disproved by the
respondents by producing the written acknowledgement given by the
petitioner. It is thus, the very defence put forth by the 1st petitioner towards
the alleged procedural lapses, have been evidently disproved by the
respondent. As a concomitant, we can safely arrive at a conclusion, that the
respondents had followed all due procedures and has provided adequate
opportunity to the petitioner and also followed the principles of natural
justice. In such a background, now the issue left to be decided is whether the
findings of the enquiry officer in order.
8. Before, we delve in to the merits of the matter, it is relevant to
discuss certain legal principles to understand the power of the Judicial
Review. In this regard, it is relevant to refer the judgment of the Hon'ble
Supreme Court in Central Industrial Security Force v. Abrar Ali reported
in (2017) 4 SCC 507, wherein the Hon'ble Supreme Court in categorical term
has enunciated that the High Court should not have entered into the arena of
facts which tantamounts to re-appreciation of evidence. It was further held
that the re-appreciation of evidence is not permissible in exercise of
jurisdiction under Article 226 of The Constitution of India. In the above
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judgment, the Hon'ble Supreme Court has also relied upon the judgment of
State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya [State Bank of
Bikaner & Jaipur v. Nemi Chand Nalwaya and Union of India v. P.
Gunasekaran reported in (2015) 2 SCC 610. The relevant paragraphs are
paragraphs 14 and 15 and the same read as under:-
“14. In State Bank of Bikaner & Jaipur v. Nemi Chand
Nalwaya [State Bank of Bikaner & Jaipur v. Nemi Chand
Nalwaya, (2011) 4 SCC 584 : (2011) 1 SCC (L&S) 721] , this
Court held as follows : (SCC p. 587, para 7)
“7. It is now well settled that the courts will not act as an
appellate court and reassess the evidence led in the
domestic enquiry, nor interfere on the ground that
another view is possible on the material on record. If the
enquiry has been fairly and properly held and the findings
are based on evidence, the question of adequacy of the
evidence or the reliable nature of the evidence will not be
grounds for interfering with the findings in departmental
enquiries. Therefore, courts will not interfere with findings
of fact recorded in departmental enquiries, except where
such findings are based on no evidence or where they are
clearly perverse. The test to find out perversity is to see
whether a tribunal acting reasonably could have arrived
at such conclusion or finding, on the material on record.
The courts will however interfere with the findings in
disciplinary matters, if principles of natural justice or
statutory regulations have been violated or if the order is
found to be arbitrary, capricious, mala fide or based on
extraneous considerations. (Vide B.C. Chaturvedi v.
Union of India [B.C. Chaturvedi v. Union of India, (1995)
6 SCC 749 : 1996 SCC (L&S) 80 : (1996) 32 ATC 44] ,
Union of India v. G. Ganayutham [Union of India v. G.
Ganayutham, (1997) 7 SCC 463 : 1997 SCC (L&S) 1806]
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, Bank of India v. Degala Suryanarayana [Bank of India
v. Degala Suryanarayana, (1999) 5 SCC 762 : 1999 SCC
(L&S) 1036] and High Court of Judicature at Bombay v.
Shashikant S. Patil [High Court of Judicature at Bombay
v. Shashikant S. Patil, (2000) 1 SCC 416 : 2000 SCC
(L&S) 144] .)”
15. In Union of India v. P. Gunasekaran [Union of India v.
P.Gunasekaran, (2015) 2 SCC 610 : (2015) 1 SCC (L&S) 554],
this Court held as follows : (SCC pp. 616-17, paras 12-13)
“12. Despite the well-settled position, it is painfully
disturbing to note that the High Court has acted as an
appellate authority in the disciplinary proceedings,
reappreciating even the evidence before the enquiry officer.
The finding on Charge I was accepted by the disciplinary
authority and was also endorsed by the Central
Administrative Tribunal. In disciplinary proceedings, the
High Court is not and cannot act as a second court of first
appeal. The High Court, in exercise of its powers under
Articles 226/227 of the Constitution of India, shall not
venture into reappreciation of the evidence.
The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure
prescribed in that behalf;
(c) there is violation of the principles of natural justice in
conducting the proceedings;
(d) the authorities have disabled themselves from reaching a
fair conclusion by some considerations extraneous to the
evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced
by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly
arbitrary and capricious that no reasonable person could
ever have arrived at such conclusion;
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(g) the disciplinary authority had erroneously failed to
admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted
inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the
High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the
same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which
findings can be based.
(vi) correct the error of fact however grave it may appear to
be;
(vii) go into the proportionality of punishment unless it
shocks its conscience.”
9. In yet another judgment in General Manager Vs. Giridhari Sahu
and others reported in (2019) 10 SCC 695, the Hon'ble Supreme Court has
referred the Constitution Bench judgment of this Court in Yakoob v. K.S.
Radhakrishnan reported in AIR 1964 SC 477, and held in paragraph 23 as
follows:-
“23. A Constitution Bench of this Court, in Yakoob v.
K.S.Radhakrishnan [Yakoob v. K.S. Radhakrishnan, AIR 1964 SC
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477] , has spoken about the scope of writ of certiorari in the
following terms: (AIR pp. 479-80, para 7)
“7. The question about the limits of the jurisdiction of
High Courts in issuing a writ of certiorari under Article
226 has been frequently considered by this Court and the
true legal position in that behalf is no longer in doubt. A
writ of certiorari can be issued for correcting errors of
jurisdiction committed by inferior courts or tribunals:
these are cases where orders are passed by inferior
courts or tribunals without jurisdiction, or is in excess of
it, or as a result of failure to exercise jurisdiction. A writ
can similarly be issued where in exercise of jurisdiction
conferred on it, the court or tribunal acts illegally or
improperly, as for instance, it decides a question without
giving an opportunity to be heard to the party affected by
the order, or where the procedure adopted in dealing
with the dispute is opposed to principles of natural
justice. There is, however, no doubt that the jurisdiction
to issue a writ of certiorari is a supervisory jurisdiction
and the Court exercising it is not entitled to act as an
appellate court. This limitation necessarily means that
findings of fact reached by the inferior court or tribunal
as a result of the appreciation of evidence cannot be
reopened or questioned in writ proceedings. An error of
law which is apparent on the face of the record can be
corrected by a writ, but not an error of fact, however
grave it may appear to be. In regard to a finding of fact
recorded by the tribunal, a writ of certiorari can be
issued if it is shown that in recording the said finding, the
tribunal had erroneously refused to admit admissible and
material evidence, or had erroneously admitted
inadmissible evidence which has influenced the
impugned finding. Similarly, if a finding of fact is based
on no evidence, that would be regarded as an error of
law which can be corrected by a writ of certiorari. In
dealing with this category of cases, however, we must
always bear in mind that a finding of fact recorded by
the tribunal cannot be challenged in proceedings for a
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writ of certiorari on the ground that the relevant and
material evidence adduced before the tribunal was
insufficient or inadequate to sustain the impugned
finding. The adequacy or sufficiency of evidence led on a
point and the inference of fact to be drawn from the said
finding are within the exclusive jurisdiction of the
tribunal, and the said points cannot be agitated before a
writ court. It is within these limits that the jurisdiction
conferred on the High Courts under Article 226 to issue
a writ of certiorari can be legitimately exercised (vide
Hari Vishnu Kamath v. Ahmad Ishaque [Hari Vishnu
Kamath v. Ahmad Ishaque, AIR 1955 SC 233] ,
Nagendra Nath Bora v. Commr. of Hills Division and
Appeals [Nagendra Nath Bora v. Commr. of Hills
Division and Appeals, AIR 1958 SC 398] and Kaushalya
Devi v. Bachittar Singh [Kaushalya Devi v. Bachittar
Singh, AIR 1960 SC 1168] ).
(emphasis supplied)”
*[Emphasis supplied by this Court]
10. Therefore, through the above precedent, it is abundantly clear that
an error of law, which is apparent on the face of the record can be corrected
by way of writ, but not an error of fact, howsoever grave it may appear to be.
It was also made clear that while issuing a writ of Certiorari, the finding of
fact recorded by the Tribunal cannot be challenged on the ground of
adequacy or inadequacy of material evidence to sustain the finding. It was
also held that the adequacy or sufficiency of evidence led on a point, and the
inference of fact to be drawn from the said finding, are within the exclusive
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jurisdiction and domain of the tribunal, and thus, the same cannot be agitated
before a writ court.
11. While keeping the above legal principles in our mind, if we look at
the facts involved in this case, the charge against the 1st petitioner is
submission of false certificate on his educational qualification. It is the
contention of the respondents that the 1st petitioner's educational qualification
is 7th standard fail. Whereas, he has given certificate as if he discontinued 9 th
standard.
12. In this regard, learned Government Advocate relied upon the
Government Notification dated 20.01.2019, wherein, by virtue of Article 309
of the Constitution of India, Rules have been framed, containing qualification
and mode of recruitment for the post of Irrigation Assistant which was held
by the 1st petitioner. While looking at the above rule, for the post of Irrigation
Assistant, the candidates must have passed 8th standard, whereas, the 1st
petitioner has passed only 6th standard and discontinued at 7th standard.
13. However, according to the above legal principles, it is abundantly
clear that, while exercising the power of judicial review, this Court cannot
re-appreciate the evidence, and should only look at whether is there some
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material available in support of the finding. In the Enquiry report, to prove
the bogus nature of the petitioner's educational qualification, the enquiry
Officer relied upon the certificate given by the School Authorities. In view of
the same, the Enquiry Officer arrived at a positive finding. In such a
background, there are some material against the 1 st petitioner. Thus, the
findings rendered by the Enquiry Officer, that the 1st petitioner had furnished
bogus certificate, cannot be found faulted.
14. The submission of bogus certificate, is a grave misconduct.
Therefore, if any lenient punishment is imposed then, it will be mock at the
integrity and honesty of vast majority of the workmen. But in this case,
learned counsel for the petitioners would invite the attention of this Court that
the 1st petitioner was appointed on a compassionate ground therefore, though
charges have been proved, he has to be dealt compassionately. In support of
his contentions, he relied upon the judgement of the learned Single Judge of
this Court in the case of K.Uthayalakshmi Vs. The Superintending
Engineer, Tiruppur District & Another reported in 2011 0 Supreme(Mad)
3269, wherein, this Court while considering a similar set of facts, has arrived
at a conclusion, that even if bogus certificate has been submitted, considering
the family circumstances and considering the factum that the delinquent was
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appointed on a compassionate ground on account of penury situation of their
family, it has to be viewed sympathetically.
15. The learned counsel for the petitioners has also relied upon the
decision of the Division Bench of this Court held in The State of Tamil
Nadu, Rep by the Secretary, Public Works Department, Fort St.George,
Chennai – 9 and others Vs. P.Palani W.A.No.2792 of 2023 vide order
dated 10.11.2023. In the above cited case, in a similar set of facts qua for
furnishing bogus electoral certificate, and other educational certificate, the
Government has taken a lenient view and conceded before the Court to
reinstate the delinquent without salary from the date of disengagement, but,
treated those period only for the continuity of service for terminal and other
benefits. The relevant portion of the said order is as follows:-
“4.The learned Additional Advocate General
appearing for the appellants would fairly submit that the
respondent herein may be extended the benefit of
G.O.Ms.No.134 and he may be reinstated into service with
effect from 28.03.2018 i.e., the date on which he was
terminated from service for furnishing bogus educational
certificate inasmuch as similarly placed workers/employees
had been extended the benefit of the said G.O. However, the
learned Additional Advocate General would submit that for
the period from 23.08.2018 i.e., date of termination until
being reinstated, the Respondent herein is not entitled to
claim the benefit of salary, but could be extended the benefit
of continuity of service for the said period.
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5.On the above submissions, the learned counsel
appearing for the writ Respondent/writ petitioner would
submit that the order of the learned Judge provided only for
reinstatement, without salary from the date of
disengagement, but the same shall be treated as continuity of
service for terminal/other benefits.
6.In view of the submissions made by the learned
counsel on either side, the order of the learned Judge is
modified to that effect. Accordingly, we intend to reiterate
that the respondent is not entitled for salary from the date of
disengagement till the date of reinstatement, however, the
same shall be treated as continuity of service for
terminal/other benefits.”
16. Therefore, now the issue to be resolved is proportionality of the
punishment. The writ Court, while exercising the power of judicial review
cannot go in to the proportionality of the judgement, unless the same is
shockingly disproportionate. No doubt, the submission of bogus certificate,
in normal circumstances would be dealt seriously. But in contrast, we are
dealing a delinquent who was appointed under compassionate ground.
Therefore, as per the order of the learned Single Judge of this Court held in
the case of K.Uthayalakshmi Vs. The Superintending Engineer, Tiruppur
District & Another it must be, to some extent dealt compassionately. The
object of appointing a person under compassionate ground is to support the
family to over come the penury condition. Therefore, considering the ratio of
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the Hon'ble Division Bench order in W.A.No.2792 of 2023, and the order of
the learned Single Judge of this Court in the case of K.Uthayalakshmi Vs.
The Superintending Engineer, Tiruppur District & Another, this Court is
of the view that there are scope to interfere in the order of punishment, to
meet the ends of justice, as the appointment was made under compassionate
ground and that now the delinquent also no more. It is in this background,
the punishment imposed against the petitioner is shockingly disproportionate.
17. In view of what has been stated herein above, this Court is of the
view that some interference by way of reduction of punishment would meet
the ends of justice. Accordingly the punishment of termination from service,
is ordered to be modified as compulsory retirement. However, it is made
clear that the petitioner would be eligible for terminal or other benefits
prospectively, more precisely only from the date of this order.
18. In the result, this Writ Petition is partly allowed as indicated herein
above. No costs.
22.10.2024
Index : Yes
Speaking order
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Neutral Citation : Yes
jas
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To
1.The State of Tamil Nadu,
Rep by its Secretary,
Public Work Department,
Fort St.George, Chennai – 600 009.
2.The Engineer in Chief,
PWD (WRO) Chennai Region,
Chepauk,
Chennai – 600 005.
3.The Chief Engineer,
PWD (WRO) Chennai Region,
Chennai – 600 005.
4.The Special Chief Engineer,
PWD,
O/o.The Superintending Engineer,
PWD (WRO) Vellar Canal Circle,
Cuddalore – 607 001.
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C.KUMARAPPAN. J.
jas
22.10.2024
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