BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
23. 12.2014 CORAM THE HONOURABLE MR. JUSTICE V.DHANAPALAN AND THE HONOURABLE MS. JUSTICE V.M.VELUMANI Writ Appeal (MD) Nos.1017 of 2014 & 1018 of 2014 & M.P.(MD) Nos.1, 1 and 2 of 2014 1.The Principal Director, Highways Department, Chepauk, Chennai - 600 005. 2.The Divisional Engineer, Highways & Rural Works Department, Dindigul - 624 001. 3.The Assistant Divisional Engineer, Highways & Rural Works Department, Batlagundu, Nilakkottai Taluk, Dindigul - 624 001. ... Appellants in both the W.As. Vs. G.Gurusamy ... Respondent in W.A.(MD) No.1017/2014 S.Kaliappan ... Respondent in W.A.(MD) No.1018/2014 PRAYER : Writ appeals filed under Section 15 of Letters Patents Act to set aside and revise the order, dated 04.04.2013, made in W.P.(MD)Nos.3115 and 3116 of 2012 and allow the writ appeals. !For Appellants : Mr.K.Chellapandian (in both the W.As.) Additional Advocate General Assisted by Mr.M.Alagadevan Special Government Pleader ^For Respondent : Ms.J.Nisha Banu (in both the W.As.) Date of reserving the Judgment :
18. 11.2014 Date of pronouncing the Judgment:
23. 12.2014 :COMMON JUDGMENT
V.M.VELUMANI, J.
Heard Mr.K.Chellapandian, learned Additional Advocate General appearing for the appellants assisted by Mr.M.Alagadevan, learned Special Government Pleader and Ms.J.Nisha Banu, learned counsel for the respondent in both the Writ Appeals.
2. These writ appeals have been filed challenging the order, dated 04.04.2013, passed in W.P.(MD)Nos.3115 and 3116 of 2012.
3. Since the issues involved in both the writ appeals are one and the same and filed against the common order dated 04.04.2013, they were heard together and decided by this common judgment.
4. The appellants are the respondents and the respondents are the petitioners in W.P.(MD) Nos.3115 and 3116 of 2012 respectively.
5. Necessary facts for the disposal of the writ appeals are follows:- (i) Both the respondents were appointed as Gang Mazdoor on 17.11.1997. The qualification for the appointment of Gang Mazdoor is a pass in fifth standard and must be below the age of 35 years with physical capacity. (ii) The respondents at the time of interview, produced the School Transfer Certificate to show their educational qualification. Based on the said certificates, the respondents were appointed as Gang Mazdoors. The said certificates were referred to the District Educational Officer, Dindigul and Assistant Elementary Educational Officer, Batlagundu, respectively, for verification as to the genuineness of the certificates. The District Educational Officer, Dindigul and the Assistant Elementary Educational Officer, Batlagundu, by their proceedings in O.MU.No.6563/A3/98, dated 02.11.1998 and O.Mu.No.391/B1/98, dated 23.06.1998 respectively, informed that the Transfer Certificates produced by the respondent in W.A.(MD) No.1017 of 2014 [G.Gurusamy]. and the respondent in W.A.(MD) No.1018 of 2014 [S.Kaliappan]. were bogus. Hence, the respondents submitted another Transfer Certificate for the second time. (iii) The second appellant issued a charge memo, dated 08.05.2001, under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules [hereinafter referred to as "the Rules"].. The respondents submitted their explanation admitting that the certificates produced by them were not genuine. Therefore, the Enquiry Officer found them guilty. Based on the findings of the Enquiry Officer, the respondents were dismissed from service. (iv) The respondent in W.A.(MD) No.1017 of 2014 filed O.A.No.3834 of 2001 and the respondent in W.A.(MD) No.1018 of 2014 filed O.A.No.5113 of 2001 before the Tamil Nadu Administrative Tribunal, Chennai, [hereinafter after referred to as "the Tribunal"]. challenging the order of dismissal. The Tribunal considered the said Original Applications along with similar Original Applications filed by other Mazdoors and by common order, dated 27.03.2002, partly allowed those Original Applications, wherein the orders of dismissal were set aside and in the place of order of dismissal, punishment of stoppage of increment for five years with cumulative effect was imposed and also ordered that the respondents are not entitled for any backwages. (v) The appellants did not file any Writ Petitions challenging the order of the Tribunal. The respondents filed the Writ Petition in W.P.(MD) No.14409 of 2010 for the following relief: "directing the respondents therein to allow the respondents to join duty as Gang Mazdoor forthwith and consequently, direct them to pay salary and all other benefits continuously from the date of the order passed by the Tribunal, dated 27.03.2002, made in O.A.No.3834/2001 (Gurusamy) and O.A.No.5113/2001 (Kaliappan)."
(vi) This Court, by order dated 10.12.2010, disposed of the Writ Petition and the relevant paragraph reads as follows:- "4.In view of the above, without expressing any opinion on the merits of the case, this writ petition is disposed of, directing the concerned respondent to consider the representation of the second petitioner, dated 22.07.2010 and the representation to be submitted by the first petitioner on merits and in accordance with law, within a period of six weeks from the date of receipt of a copy of this order. Consequently, the connected Miscellaneous Petition is closed. No costs."
(vii) However, the appellants did not pass orders on the representation of the respondents. Therefore, the respondents filed Contempt Petition (MD) No.238 of 2011 before this Court. When the Contempt Petition was taken up for hearing, the learned Special Government Pleader appearing for the respondents therein represented that already the Executive Engineer, Building and Maintenance, Dindigul had forwarded a proposal to the first appellant. Recording the said statement, the Contempt Petition was closed by this Court, on 21.12.2011. (viii) Even thereafter, the appellants did not pass any orders. Therefore, the respondents filed W.P.(MD) Nos.3115 and 3116 of 2012 seeking a Writ of Mandamus, to direct the first appellant to pass orders on the proposal sent by the respondents 2 and 3 and consequently allow the respondents to join duty as per the orders passed by the Tribunal in O.A.Nos.3834 and 5113 of 2001, dated 27.03.2002. Upon consideration of the rival submissions, this Court, on 04.04.2013, passed the following order:- "8.This Court did not like to pursue the contempt petition in the light of the proposal being sent. That being so, the respondent should have complied with the order in letter and spirit of the order passed in the contempt petition. But it is unfortunate that the road workers are driven from pillar to post. They are fighting for more than a decade for re- instatement of service. The respondent authorities are insensitive to the various orders passed by this Court. The first respondent is directed to reinstate the petitioners forthwith within a period of two weeks and to report the same to this Court, otherwise the matter will be viewed seriously and contempt proceedings will be initiated."
(ix) Thereafter, on receipt of the said order, the second appellant by his proceedings in Se.Mu.Ka.No.606/2013/B2, dated 12.04.2013, reinstated the respondents in service without any wages for the period of non-employment and imposed a condition for stoppage of increment for five years with cumulative effect. (x) The respondents filed Contempt Petition (MD) Nos.992 & 993 of 2013 alleging that the appellants have disobeyed the common order passed by this Court dated 04.04.2013, in W.P.(MD) Nos.3115 & 3116 of 2012. (xi) Subsequently, the second appellant, by his proceedings in Se.Mu.Ka.No.606/2013/B2, dated 11.09.2013, cancelled the conditional order of stoppage of increment for five years with cumulative effect as ordered in the order of reinstatement, dated 12.04.2013. However, the appellants have filed the present writ appeals against the common order, dated 04.04.2013, passed in W.P.(MD) Nos.3115 & 3116 of 2012.
6. The learned Additional Advocate General appearing for the appellants argued that; (a) the learned Judge failed to consider that the respondents have submitted bogus Transfer Certificates twice; (b) since the respondents admitted their guilt of submitting bogus Transfer Certificates on two occasions, they are not entitled to reinstatement; (c) the respondents cannot take advantage of the order of the Tribunal that they themselves admitted their guilt; (d) the learned Judge failed to consider that the post of Gang Mazdoor was abolished in the year 2002 and was again restored only in the year 2006; (e) the respondents having made their applications for reinstatement after 2006, are not entitled for reinstatement from the date of the order of the Tribunal; (f) this Court, by order, dated 10.12.2010, passed in W.P.(MD) No.14409 of 2010, directed the appellants only to consider the representation of the respondents, dated 22.07.2010, in accordance with law and pass orders on merits; (g) the respondents have not challenged the order, dated 10.12.2010. Therefore, they cannot claim reinstatement from the date of the order of the Tribunal; and (h) the second appellant ordered reinstatement of the respondents, by his proceedings, dated 12.04.2013, and subsequently, on 11.09.2013, reversed the order passed by him, cancelling the order of stoppage of increment for five years with cumulative effect. For the above reasons, the learned Additional Advocate General appearing for the appellants sought for setting aside the common order dated 04.04.2013, passed in W.P.(MD) Nos.3115 & 3116 of 2012.
7. In support of his submissions, the learned Additional Advocate General appearing for the appellants relied on the following Judgments: (i) 2010 [11]. SCC702[Manoj Kumar vs. Government of NCT of Delhi and Others]., wherein at paragraph No.8, it has been held as follows:- "8.There is no doubt that if any candidate furnishes false or incomplete information or withholds or conceals any material information in his application, he will be debarred from securing employment. It is also true that even if such an applicant is already appointed, his services are liable to be terminated for furnishing false information."
(ii) This Court, by order dated 08.10.2010, passed in W.P.No.329 of 2008 [K.Dhanasekaran Vs. State of Tamil Nadu, Rep. by its Secretary to Government, Housing & Urban Development Department and Others]., in which one of us [V.DHANAPALAN, J.]. is a party, wherein at paragraph No.7, the earlier Judgment of the Division Bench of this Court, dated 20.02.2006, passed in W.P.No.29511 of 2002 etc. batch, was extracted, which reads as follows:- "7.In W.P.No.29511 of 2002, etc. Batch, a Division Bench of this Court by order dated 20.02.2006 has taken a similar view. The relevant portion of the order reads as follows: "2....Three Original Applications along with other Original Applications have been filed by Salai Paniyalargal, who have been removed from service on the ground that at the time of initial applications and subsequent appointments, they have produced false Educational Certificates showing as if they have passed Class V. During the course of enquiry, it was found that, in fact all these applicants have got higher qualifications, even some of them have passed S.S.L.C. but, they have produced the Class V educational qualification with a view to get the employment, thinking that higher qualified person may not be selected. The Tribunal taking into account these factors, held that, even though they were guilty of producing the wrong certificates, instead of removal, the punishment of stoppage of five increments with cumulative effect may be imposed. 3.These order have not been challenged by the concerned individual employees. However, the State Government has filed the present Writ Petitions. The main contention of the State Government is to the effect that since delinquency had been found, the Tribunal should not have interfered with the punishment.
4. Ordinarily, the Administrative Tribunal is not supposed to interfere with the order of punishment once delinquency is found, unless such order of punishment is grossly disproportionate to the nature of delinquency. In the present case, we find that the Tribunal has referred to relevant aspects and has interfered with the order of punishment. In the peculiar facts and circumstances of the case, we do not find any reason to interfere with the discretionary order passed by the Tribunal."" and all the Judgments in this regard was considered and relevant paragraph Nos.12 to 14, would run thus:-
"2. Lastly, a question has been raised as to whether the punishment imposed on the petitioner is proportionate to the charges levelled against him. The settled legal position is that in the matter of imposition of sentence, the scope of interference is very limited and restricted to exceptional cases. The jurisdiction of the High Court to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the Court, cannot be subjected to judicial review. It is also well settled that the High Court cannot interfere with the discretion exercised by the disciplinary authority or the appellate authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the Court. The exercise of discretion in imposition of punishment by the disciplinary authority or appellate authority is dependent on host of factor such as gravity of misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position that the delinquent holds previous penalty, if any, and the discipline required to be maintained in the department or establishment he works.
13. In the instant case, the order of punishment imposed by the disciplinary authority as well as the appellate authority is extreme to the extent of dismissal from service and whether it warrants interference or not is to be examined. It is true that the petitioner had submitted certificates one with SSLC failed and another with 8th standard. As pointed out earlier, it is not the case of the respondents that the petitioner is not qualified. Therefore, the imposition of punishment should be lesser than dismissal from service, based on the alleged bogus certificate. It is also held by the Supreme Court in the case of Ramanuj Pandey Vs. State of Madhya Praesh reported in (2009) 7 SCC248that the High Court, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court, it would appropriately mould the relief either directing the disciplinary authority to reconsider the penalty imposed or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.
14. For the foregoing reasons, while analysing the ratio laid down by the Supreme Court as well as this Court and upon perusal of the entire material documents on record, I am of the considered opinion that the punishment imposed on the petitioner is harsh and excessive and therefore, it requires reconsideration and the orders of punishment imposed by the authorities have to be set aside and the matter has to be remanded back to the authorities concerned."
8. Per contra, Ms.J.Nisha Banu, learned counsel for the respondents in both the writ appeals argued that the Tribunal, by order dated 27.03.2002, set aside the order of dismissal and imposed only a punishment of stoppage of increment and that the appellants did not file any appeal against the said order and therefore, the said order has become final. She further argued that the respondents are deemed to be in service from 27.03.2002 and they are entitled to all monetary benefits and the appellants have committed contempt of common order, dated 04.04.2013, as they reinstated the respondents, without any wages, which the respondents are entitled to and prayed for the dismissal of both the writ appeals.
9. We have carefully considered the rival submissions and perused all the materials available on record, the judgments relied on by the learned Additional Advocate General appearing for the appellants and the orders of the Writ Court, dated 10.12.2010 and 04.04.2013, passed in W.P.(MD) Nos.14409 of 2010 and 3115 & 3116 of 2012 respectively and the arguments of the learned counsels appearing for the parties.
10. Admittedly, the respondents have produced bogus School Transfer Certificates on two occasions. On the report of District Educational Officer, Dindigul and Assistant Elementary Educational Officer, Batlagundu, the second appellant initiated disciplinary proceedings under Rule 17(b) of the Rules. The respondents in their explanations and during the enquiry admitted that they have produced bogus School Transfer Certificates and therefore, the Enquiry Officer has found the respondents guilty. Based on the findings of the Enquiry Officer, the respondents were dismissed from service. Aggrieved over the same, the respondents challenged the order of dismissal by filing O.A.Nos.3834 and 5113 of 2001 before the Tribunal, wherein the Tribunal considering the contentions of the respondents and similarly placed persons, and the contentions of the appellants and taking into account the fact that the respondents and others underwent a training for one year and subsequently, they worked for further period of three years, held that the order of dismissal is disproportionate to the alleged misconduct and set aside the order of removal. Accordingly, the Tribunal ordered reinstatement without wages for period of non-employment and substituted the punishment of stoppage of increment for five years with cumulative effect.
11. The post of Mazdoor was abolished in the year 2002 and was restored only in the year 2006 and thereafter, the respondents have made their representations. This Court, by order dated 10.12.2010, passed in W.P.(MD) No.14409 of 2010, directed the appellants to consider the representation of the respondents on merits and in accordance with law, but no orders were passed to reinstate the respondents and pay the wages.
12. Thereafter, the Executive Engineer, Building and Maintenance, Dindigul, sent a proposal to the first appellant with regard to the reinstatement of the respondents and it is pending. While so, the respondents have approached this Court, by filing W.P.(MD) Nos.3115 & 3116 of 2012, seeking for a direction to the first appellant to pass orders on the proposal and allow them to join duty as per the orders passed by the Tribunal in O.A.Nos.3834 and 5113 of 2001.
13. The learned Judge, by the impugned order, dated 04.04.2013, has ordered reinstatement of the respondents. Based on the said order, the second appellant by his proceedings, dated 12.04.2013, reinstated the respondents. Subsequently, by the proceedings, dated 11.09.2013, the condition imposed in the order, dated 12.04.2013, for stoppage of increment for five years with cumulative effect was cancelled.
14. Considering the facts stated above, the reinstatement of the respondents without wages for the period of non-employment, is in order. On earlier occasions, this Court directed the appellants to consider the representation of the respondents, dated 22.07.2010 and this Court did not pass any orders directing the appellants to allow the respondents to join duty as Gang Mazdoor and pay salary and other benefits continuously from the date of order of the Tribunal.
15. By the impugned order, dated 04.04.2013, the learned Judge has ordered reinstatement only. No order was passed for payment of salary and other benefits. Further, the second appellant, by order dated 12.04.2013, reinstated the respondents with a punishment of stoppage of increment for five years with cumulative effect. Subsequently, by proceedings, dated 11.09.2013, the said condition was also cancelled. The appellants, in fact, have complied with the impugned order. The contention of the learned counsel for the respondents that the respondents are entitled to wages from the date of order of the Tribunal, is untenable and unsustainable in law. As already stated, in the impugned order, only reinstatement has been ordered, but no order has been passed with regard to payment of wages from the date of order of the Tribunal.
16. For the foregoing reasons and discussions, both the writ appeals stand disposed of making it clear as to what extent, the respondents are entitled to the wages, as indicated above. No costs. Consequently, connected miscellaneous petitions are dismissed. (V.D.P.,J.) (V.M.V.,J.) 23.12.2014 Index : yes Internet : Yes smn2 V.DHANAPALAN, J.
AND V.M.VELUMANI, J.
smn2 Pre-delivery common Judgment in W.A.(MD) Nos.1017 & 1018 of 2014 & M.P.(MD) Nos.1, 1 and 2 of 2014 23.12.2014