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2010 Supreme(Mad) 4464
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE V. DHANAPALAN
K. Dhanasekaran
Versus
State of Tamil Nadu & Others
W.P. No. 329 of 2008
Decided On : 08-10-2010
For the Petitioner:M/s. C.S. Monica For S. Vaidyanathan, Advocates.
For the Respondents:R1 - S. Gopinathan, Addl. Govt. Pleader, R2 to R4 A. Vijayakumar, Advocate.
Ratios
a. Order of punishment signed by an authority lower in rank than the appointing authority is not valid.
b. Forgery in the certificate of educational qualification produced to get appointment would not warrant dismissal of such employee when, in fact, he was having necessary qualification for the post for which he was appointed.
Headnote:(A)Constitution of India-Art.226, 311-Service-Misconduct-Appointment-Certificate- Forgery-Punishment-Dismissal- Interference-Court-Power-Petitioner was appointed as office assistant based upon the certificate produced by him and served for a long time-When the vigilance found that the certificate produced by him was forged, after enquiry, he was dismissed from service-Charge memo was issued by the Managing Director but the dismissal was signed by the subordinate officer-When the appellate remedies did not yield any result, the petitioner filed writ petition challenging the dismissal-Petitioner contended that the certificate was produced by his father innocently-He stated that he was having the required educational qualification for the post applied and the mistaken production of the wrong certificate, though forged, would not warrant extreme punishment-Respondents resisted the plea of the petitioner and contended that when the appointment was obtained relying upon forged certificate, dismissal was the proper punishment-Held, when his real educational qualification satisfied the minimum requirement for the post he was appointed, and considering his explanation, punishment of dismissal was disproportionate-While the charge memo was issued by a superior officer, issue of punishment by the subordinate officer was not valid-Punishment of dismissal was set aside and the respondents were directed to reconsider the punishment-Writ petition was allowed.
(B)Constitution of India-Art.226, 311-Service-Misconduct- Punishment-Authority-Competency-Order of punishment signed by an authority lower in rank than the appointing authority is not valid.
To examine this question, it is evident that when the charge sheet has been framed and signed by the Managing Director, it would be more mandatory that the appointing authority alone is the competent authority to sign the order of dismissal and the order of the Managing Director signed by the Secretary and Personnel Officer cannot be construed as an order passed by the competent authority. If the order of the charge sheet was signed by the Managing Director, what is the difficulty for him to sign the dismissal order. On perusal of the records, it comes to light that the order is not signed by the competent authority. For this reason also, the order is legally infirmed. Para 9
(C)Constitution of India-Art.226, 311-Service-Misconduct-Appointment-Certificate- Forgery-Punishment-Dismissal- Proportionality- Forgery in the certificate of educational qualification produced to get appointment would not warrant dismissal of such employee when, in fact, he was having necessary qualification for the post for which he was appointed.
In this case, it is seen that the petitioner has studied up to SSLC (old XI standard), however, he failed in it. For the post of Office Assistant, even though the petitioner has failed in SSLC, it is not the case of the respondents that the petitioner is not qualified for the said post and there is no doubt that the certificate produced by him was a forged one. However, the order of dismissal appears to be harsh on seeing his explanation that his father only produced the certificate. Para 11
1. Heard M/s.C.S.Monica, learned counsel for Mr.S.Vaidyanathan, learned counsel appearing for the petitioner, Mr.S.Gopinathan, learned Additional Government Pleader appearing for the first respondent and Mr.A.Vijayakumar, learned counsel for the respondents 2 to 4.
2. In this writ petition, the petitioner, by challenging the order of dismissal passed by the third respondent dated 10.11.2005 and the Appellate Authoritys order dated 12.01.2007, confirming the order of dismissal and the Governments order dated 19.10.2007 in the further appeal preferred by the petitioner, sought for quashment of the same and for a consequential direction to the respondents to reinstate the petitioner in service with back-wages, continuity of service, consequential attendant benefits.
3. According to the petitioner, he studied upto SSLC (old XI Standard), but unfortunately, he was not successful in clearing the papers in the examination. He joined the services of the Tamil Nadu Housing Board (hereinafter referred to as TNHB) in the year 1981 in the post of Sevakh and subsequently, promoted as Bill Collector. He served TNHB for 24 years and he was too young. Based on the certificates produced by his father, he was inducted in TNHB.
3a. The petitioner would submit that due to the vigilance interference, it was given to the light that one Ekambaram, an employee of Collectorate, procured several certificates to enable the unemployed youths to get employment in Government and other places. When the Vigilance Case started going against him, he committed suicide. The petitioner states that in that Vigilance enquiry, it was found that his certificate was also a forged one and based on that, an enquiry was conducted by the TNHB and he was suspended from service on 21.03.2003 and a charge sheet was issued against him on 26.02.2004, in which, two charges were framed against him alleging that he had produced bogus transfer certificate purported to have been issued by the Corporation High School, Saidapet, thereby, he violated the Tamil Nadu Housing Board Officers and Servants Rules (hereinafter referred to as Rules) and Tamil Nadu Housing Board Service Regulation 36(a) (ii) of 1969 (hereinafter referred to as Regulation).
3b. According to the petitioner, he gave a detailed explanation on 03.09.2004 to the charge memo, stating that he studied 11th standard, but failed and also stated that his father might have produced the certificate and he was not aware of the same. However, not satisfying with his explanation, an enquiry was conducted against him. In the enquiry, the respondents produced the certificate issued by Sir Thiyagaraya College School, Chennai-21. He also stated before the Enquiry Officer that when he was asked to produce the certificate, his father produced all his certificates and thereafter, kept all his original certificates with him, as he feared that he might misplace the original certificates at the young age. Then, the enquiry finding of the Enquiry Officer dated 08.08.2005 was forwarded to him and he was asked to submit his comments on the undated report of the Enquiry Officer. It was held in the Enquiry Report that the certificate issued by the Corporation School, Saidapet, is not a genuine one, but it was also stated that the Enquiry Officer had not given any reason as to how the certificate was produced to the TNHB. He further submits that if he wanted to stand by the certificate, which was not his intention, he would not have produced the XI standard certificate given by Sir Thiyagaraya College School. Therefore, he claims that based on the certificate, he is entitled to hold the post of Sevakh and Bill Collector.
3c. It is submitted by the petitioner that on receipt of his comments dated 06.09.2005, without taking into consideration of his contention, the third respondent proceeded with and ultimately passed an order of dismissal from service on 10.11.2005 with immediate effect. Then he preferred an appeal on 02.01.2006
