IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.08.2010 CORAM THE HONOURABLE MR. JUSTICE T.RAJA W.P.No.42883 of 2006 (T) O.A.No.7509 of 1999 P.Kalimuthu ... Petitioner Vs. The Personnel Assistant to Collector (General), Ramanathapuram, Ramnad District. ... Respondent PRAYER: Writ Petition came to be numbered by transfer of O.A.No.7509 of 1999 on the file of the Tamil Nadu Administrative Tribunal praying to call for the records connected with Pro.Na.Ka.No.A5/33541/99, dated 26.11.99 passed by the Personnel Assistant to Collector (General) Ramanathapuram and quash the same and direct the respondent to reinstate the applicant into service with all consequential benefits. For Petitioner :Mr.P.Jayaraman, SC For Mr.G.Elanchezhiyan For Respondent :Mr.V.Manoharan, GA ORDER
The petitioner’s father, while serving as Office Assistant in Ramanathapuram District Revenue Unit, died on 15.04.75. Thereafter, the petitioner was appointed as Night Watchman in Class IV of Tamil Nadu Basic Service by relaxing Rule 5(1) of Tamil Nadu Basic Service Rules and he joined duty on 09.12.84. At the time of his appointment, he was only as 8th standard discontinued candidate. Subsequently, he was also promoted as Office Assistant and joined the said post on 01.04.85. As per Tamil Nadu Basic Service Rules, a person who is appointed in any of the of the post in Class IV, should have completed five years of service in that post and should have passed 8th standard for getting promotion to the post of Office Assistant. As the petitioner was appointed as Office Assistant within a short span of four months from the date of his appointment as Night Watchman, his service records were perused and it was found that there were some corrections in the entries relating to his educational qualification and age as well. In respect of 8th standard discontinued, there was correction to the effect showing that he has passed 8th standard and in respect of his date of birth also, it was found that his date of birth has been altered unofficially as 12.04.58 instead of 12.04.55, which was given at the time of his appointment as Night Watchman. Therefore, the petitioner was issued with a charge memo dated 11.05.99 under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules, for having made unauthenticated corrections regarding his qualification and date of birth. The petitioner submitted his explanation stating the corrections in his service register has been made behind his back and he was no way connected with that incident. But, the disciplinary authority rejected his explanations, since his appointment was on compassionate ground as per G.O.Ms.No.1107, Revenue Department, dated 05.07.84, whereby his educational qualification was shown as just 8th standard discontinued and that he had completed 28 years of age at the time of his appointment. since, within a short span of four months, there was no possibility to pass 8th standard and as the petitioner also failed to produce any records showing that he has passed 8th standard examination, enquiry was ordered. The enquiry officer, after perusing the service register and the connected records showing the entries regarding his previous temporary appointment made on 28.03.85 and on the same date he has applied for promotion stating that he has passed 8th standard, all of which goes to show that the petitioner has furnished incorrect information regarding his educational qualification for getting promotion, submitted his findings holding him guilty of all the charges.
The disciplinary authority on the basis of the findings of the enquiry officer, again sought for explanation. The petitioner submitted his further explanation making allegation against the enquiry officer, but they were all rejected as unacceptable and finally, the disciplinary authority, accepting the findings of the enquiry officer holding him guilty, passed an order of removal from service.
2. Learned Senior counsel appearing for the petitioner submits that the petitioner had no connection whatsoever with the alteration of his educational qualification as well as the date of birth. Further, he was serving only as Office Assistant, after his promotion from Night Watchman. Therefore, there was no access to the custody of the records and the respondent wrongly passed an order, that too, without proper enquiry. On that basis, prayed for setting aside the impugned order.
3. On the other hand, learned counsel appearing for the respondents submits that the appointment of the petitioner was made only compassionate ground, after the death of his father Late Periasamy, who died on 15.04.75. At the time of his appointment as Night Watchman, the petitioner had shown his educational qualification as 8th standard discontinued and his date of birth as 12.04.55. Immediately, after joining as Night Watchman, the petitioner also submitted his representation to promote him to the post of Office Assistant. On the basis of the representation made by the petitioner, he was promoted as Office Assistant. Thereafter, the service register of the petitioner was perused. While doing so, it was found that there were some corrections in the records, wherein the petitioner’s qualification was found altered from 8th standard discontinued into 8th standard passed and also alteration in the date of birth as 12.04.58 instead of 12.04.55. Therefore, an enquiry was ordered under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules. In the enquiry, the petitioner was not able to explain as to why he had made a representation to promote him to the post of Office Assistant from the post of Night Watchman, when he has not passed 8th standard examination, if he had not altered the educational qualification in the service register in collusion with other persons in the office. Therefore, the enquiry officer found him guilty and finally, the disciplinary authority, after giving reasonable opportunities, found him not fit to continue as a staff in the office, as a result, he was removed from service. When the charges framed against the petitioner were found proved, the disciplinary authority ended in removal of the petitioner from service and therefore, this Court shall not interfere with the impugned punishment imposed by the respondent. On that basis, prayed for dismissal of the writ petition.
4. Heard the learned counsel appearing on either side and perused the materials available on record.
5. Admittedly, the petitioner was appointed on compassionate ground as Night Watchman on 09.12.84, when the petitioner’s father Late Periasamy, while serving as Office Assistant, expired on 15.04.75. On submitting application by the petitioner for appointment on compassionate ground, the respondent having seen the educational qualification being 8th standard discontinued and the petitioner having completed 28 years of age, appointed him as Night Watchman and thereafter, the petitioner joined duty on 09.12.84. Surprisingly, within a short span of four months, the petitioner made a representation seeking promotion to the post of Office Assistant. G.O.Ms.No.1107, Revenue Department, dated 05.07.84, whereby the Government, has ordered to appoint the petitioner in any of the post in Class IV of Tamil Nadu Basic Service by relaxing Rule 5(1) of Tamil Nadu Basic Service Rules. On that basis, he was appointed as Night Watchman on 09.12.84. As his qualification was 8th standard discontinued and his original appointment itself was Night Watchman, whileso, without passing 8th standard examination, the petitioner himself submitted his representation requesting for promotion while serving as Night Watchman, indicating that he has passed 8th standard examination. As per Tamil Nadu Basic Service Rules, a person who is appointed in any of the of the post in Class IV, should have completed five years of service in that post and should have passed 8th standard for getting promotion to the post of Office Assistant etc. But, in the present case, since the petitioner surprisingly made an application seeking for promotion and his request for promotion was also accepted and he joined as Office Assistant, the service register of the petitioner was perused by the officer concerned and it was found that there were some corrections in the records, wherein 8th standard discontinued was altered into 8th standard passed and the date of birth was also found to have been altered unofficially from 12.04.55 to 12.04.58, thereby showing extension of service by three more years. Therefore, an enquiry was ordered and in the enquiry, the petitioner was asked to submit his explanation. Though sufficient opportunities were granted, the petitioner, without producing the relevant school certificate to show that he has passed 8th standard as well as his date of birth proof, has taken only one ground stating that he was a poor Office Assistant and had no access to the service records maintained by the respondent, but somebody of indisposed mind should have done this mischief, cannot be accepted, for the reason that his educational qualification for the promotional post of Office Assistant, the rule says that one should have passed 8th standard examination.
The petitioner has admittedly submitted his representation seeking promotion from the post of Nigh watchman to Office Assistant. Had the petitioner not altered his educational qualification, he would not have presented his representation seeking promotion to the post of Office Assistant. Secondly, even if anybody had asked him to sign representation to make a prayer for promotion to the post of Office Assistant from the post of Night Watchman, unless the petitioner was fully aware of the fact that his educational qualification had been fully changed as 8th standard passed, he would not have presented his application seeking promotion to the post of Office Assistant, because the Tamil Nadu Basic Service Rules specifically says that a person who is appointed in any of the of the post in Class IV, should have completed five years of service in that post and should have passed the 8th standard for getting promotion to the post of Office Assistant. The petitioner neither had completed 5 years of service at time of his promotion to the post of Office Assistant, nor had passed 8th standard. Whileso, the petitioner had not even produced any certificate showing that he has passed 8th standard and also to prove his date of birth as 12.04.58. In such circumstances, the enquiry officer found him guilty of the grave charge of altering his educational qualification as well as the date of birth. Therefore, the disciplinary authority, after fully satisfying itself with the findings of the enquiry officer, imposed the punishment of removal from service.
6. The challenge made by the learned Senior counsel for the petitioner seeking to build up the case that the petitioner was in no way connected with the alteration of his educational qualification as well as his date of birth, is highly unreasonable and beyond anyone’s imagination. In this connection, it is pertinent to note that the petitioner also made his representation seeking promotion, that too without possessing 5 years of service experience to the post of Office Assistant also goes to show that the petitioner, by collusion with someone in the office, has altered his educational qualification as well as his date of birth. Had the petitioner not known about the alteration of his educational qualification and date of birth in the Service Register, he would not have definitely given the representation seeking promotion to the post of Office Assistant. Action of the petitioner in giving the representation for promotion to the post of Office Assistant goes to show that the petitioner had knowledge about the alteration, that had been carried out in his Service Register, which such clinching circumstances, would show that the petitioner might have colluded with some office personals in having the alteration carried out. Therefore, the argument advanced by the learned Senior counsel that the petitioner was not connected with the alteration in the Service Register, cannot be accepted.
The last argument alleging that the respondent failed to produce any prosecution witness, cannot be a ground to interfere with the quantum of punishment imposed by the disciplinary authority. When the charges are pointing to the guilt of the petitioner, it is for the petitioner to disprove as to why he has made an application seeking promotion from the post of Night Watchman to the post of Office Assistant, without acquiring basic qualification of 8th standard passed and also 5 years of completed service in the post of Night Watchman.
7. Another submission advanced by the learned Senior counsel for the petitioner to interfere with the impugned order dated 26.11.99 on the ground that the department has initiated proceedings only after 15 years from the date of entry in the service also deserves to be brushed aside, in view of the serious allegation levelled against the petitioner. If his argument is accepted, this Court would be committing serious injustice, as the petitioner, who has committed an act of wrong would further continuing in the post, which will be against the interest of justice. It is always open to the respondent to take action against the petitioner at any time during the course of his employment, if acts of omission and commission comes to its notice.
8. The learned Senior counsel for the petitioner relied on the judgment of the Apex Court in G.Adavan Vs. Government of Tamil Nadu and Another reported in 2010(2) MLJ 1007, but the same is not applicable to the facts and circumstances of the case. It is not the case of the petitioner that the respondent on their own move promoted the petitioner to the post of Office Assistant, ignoring the educational qualification required for the promotional post of Office Assistant, whereas it is the case of the respondent that only on the representation made by the petitioner seeking promotion, saying that he has passed 8th standard, the promotion was given to him. When this is the crux of the matter that the petitioner on his representation to promote him to the post of Office Assistant stating that he has put in 5 years of service and is also possessed of a pass in 8th standard and the petitioner being unable to disprove the evidence let in by the respondent, the plea of the delay in initiating the enquiry cannot be held against the respondent.
9. The educational qualification that was prescribed being a pass in 8th standard, when the petitioner was fully aware of the fact that he had not passed 8th standard examination, he should not have given his representation seeking promotion on the ground that he has passed 8th standard examination, which goes to prove that the petitioner has altered his service records in collusion with other staff in the office of the respondent.
10. Had the petitioner really completed 8th standard, to disprove the allegations made by the respondent, the petitioner could have produced the school certificate as well as birth certificate. Having not produced any proof to show his date of birth and qualification, merely denying that the petitioner has no connection with the alteration made about his educational qualification as well as date of birth in the service register, cannot save the petitioner from the allegations, particularly, when he has made a representation for promotion to the post of Office Assistant. Therefore, the enquiry officer was right in holding that the charges levelled against the petitioner were proved beyond doubt. Forgetting the basic tenets of production of evidence, simply blaming the respondent that they failed to produce witnesses to prove the allegation is legally unsustainable.
Looking at the case from any angle, this Court does not find any substance to interfere with the impugned order of punishment imposed by the respondent. The petition being devoid of merits deserves to be dismissed. Accordingly, the present writ petition is dismissed. No Costs.
11.08.2010
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Internet: Yes
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To
The Personnel Assistant to Collector (General),
Ramanathapuram,
Ramnad District.
T. RAJA, J.
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W.P.No.42883/2006
11.08.2010