K.

Jeganathan vs Union Of India on 21 April, 2008

Madras High Court

K. Jeganathan vs Union Of India on 21 April, 2008

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated 21..4..2008
Coram:
The Hon'ble Mr. Justice K.CHANDRU
W.P. No. 8886 of 1998

K. Jeganathan .. Petitioner

vs.

1. Union of India
Rep. by Director General Border Roads
Kashmir House
DHQPO
New Delhi

2. The Chief Engineer

Project Vartak
C/o 99 A.P.O.
Tezpur
Assam District .. Respondents

Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of C

For Petitioner : Mr. C. Sundaravadivel

For Respondents : Mr. M. Dhamodharan

O R D E R

Heard the arguments of the learned counsel for the parties and have perused the records.

2. The petitioner was appointed as a Pioneer in the GREF on 21.7.1966. Subsequently, he was
promoted as a Store man w.e.f. 15.9.1968. Thereafter, through the selection made by the
Departmental promotion Committee (DPC), he was promoted as Store Keeper (Technical) at the
Eastern Store Division, GREF, Tezpur in Assam on 18.7.1983. He was given a charge-memo dated
29.6.1990 stating that the H.S.L.C. Examination Certificate produced by him was not genuine and
with that fake certificate, he had unjustly obtained promotion. He had also violated Rule 3(1)(i) and
(iii) of the Central Services Conduct Rules, 1964.

Indian Kanoon - http://indiankanoon.org/doc/1182189/ 1

 K. Jeganathan vs Union Of India on 21 April, 2008

3. An enquiry was conducted against the petitioner and he was given full opportunity to defend
himself. He neither gave any written statement in the enquiry nor made any oral submission. The
defence witness named by him confirmed that the H.S.L.C. Certificate produced by him was not
genuine and was not issued by the Board of Secondary Education, Manipur. The Enquiry Officer
found him guilty and copy of the report was furnished to him. Thereafter, he was imposed with a
punishment of dismissal from service by the second respondent vide his order dated 17.3.1997. An
appeal was filed by the petitioner which was rejected by the first respondent vide order dated
20.7.1997.

4. It must be stated in the enquiry, the letter dated 30.7.1992 issued by the Headmaster of Bhairodin
Hindi High School, Impal, was produced wherein the Department was informed that his school was
a Hindi Medium School and they would not have admitted any Tamil Medium scholar like the
petitioner. Further, the letter dated 20.12.1999 written by the Secretary, Board of Secondary
Education, Manipur that the petitioner had never appeared at the H.S.L.C. Examination in the year
1984 with Roll No. 7359 was also produced in the enquiry. It was on the strength of these materials,
the petitioner was found guilty in the departmental enquiry.

5. Learned counsel for the petitioner submitted that the enquiry conducted against him was vitiated
and many of the witnesses, whose names were furnished in the charge-memo, were not summoned.
He also submitted that he has not committed any misconduct in as much as the certificate produced
by him was genuine and the statements issued by the Headmaster and the Secretary of Board of
H.S.C., Manipur were not proved in the manner known to law. In any event, he had submitted that
the requirement of an H.S.L.C. Pass is relevant only for the promoted post and, therefore, he must
be allowed to continue in service at least in the lower post for which he was not disqualified. Finally,
he submitted that having worked for 31 years, leniency must be shown to him.

6. With reference to the submission that the enquiry was not fair and the report of the Secretary,
H.S.C. Board, Manipur, should not be believed, it is relevant to refer to some decisions of this Court
and the Supreme Court.

6.1. In this context, the Supreme Court vide its decision in Maharashtra State Board of Secondary
and Higher Secondary Education v. K.S. Gandhi and others [(1991) 2 SCC 716] has held that the
principles of natural justice will depend on the nature of inquiry and the peculiar circumstances of
each case. The relevant passage found in paragraph 17 may be usefully extracted below :-

Para 17: "..... The show cause notice furnished wealth of material particulars on which the tampering
was alleged to be founded and gave the opportunity to each student to submit the explanation and
also to adduce evidence, oral or documentary at the inquiry. Each student submitted the explanation
denying the allegation...."

6.2. Further, in identical circumstances, a Division Bench of this Court in W.P. No. 19063 of 2004
[P. Sekar v. The Registrar, Tamil Nadu Administrative Tribunal, Chennai and others], disposed on
16.02.2008, has held as follows:-

Indian Kanoon - http://indiankanoon.org/doc/1182189/ 2

 K. Jeganathan vs Union Of India on 21 April, 2008

Para 5: "Therefore, the contention of the petitioner that the enquiry report and the order of
punishment are based on no evidence is not acceptable. In a departmental enquiry, technical rules
of the Evidence Act are not strictly applicable. On behalf of the Department, the letter of the
Director of Government Examinations dated 7.11.2001 had been produced indicating that the marks
reflected in the mark sheet submitted by the petitioner did not tally with the marks available from
the original records. The petitioner himself was examined during the departmental enquiry and the
questions put and the answers given are available on record. Except baldly stating that the petitioner
has got mark sheet from the school, there is no other acceptable material or detail has been given. It
is not even the case of the petitioner that he had actually passed and the report given by the Director
of the Government Examinations is incorrect. Since the petitioner had submitted a mark sheet,
which was found to be incorrect, it was within the subject knowledge of the petitioner as to the
source of obtaining such mark sheet and it was for him to explain such aspect by adducing proper
evidence. To that extent, the Tribunal was correct in coming to the conclusion that the charge has
been found against him."

7. The Supreme Court in many of its decisions, had answered the issue as to whether leniency can be
shown by Courts in cases of persons who gave fake forged educational certificates at the time of
appointment and securing employment by fraud or deceit. Some of the decisions were also rendered
in the context of persons gaining entry with false Community Certificates.

7.1. In Bank of India v. Avinash D. Mandivikar [(2005) 7 SCC 690], the Supreme has held in
paragraphs 11 and 12 as follows:

Para 11: ".... Fraud and collusion vitiate even the most solemn proceedings in any civilised system of
jurisprudence. This Court in Bhaurao Dagdu Paralkar v. State of Maharashtra dealt with the effect of
fraud. It was held as follows in the said judgment: (2005 (7) SCC pp. 613-14, paras 12-16) ™2.
Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii)
without belief in its truth, or (iii) recklessly, careless whether it be true or false. * * *

13. This aspect of the matter has been considered by this Court in Roshan Deen v. Preeti Lal (2002
(1) SCC 100), Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education (2003 (8)
SCC 311), Ram Chandra Singh case (2003 (8) SCC 319) and Ashok Leyland Ltd. v. State of T.N.
(2004 (3) SCC 1).

14. Suppression of a material document would also amount to a fraud on the court. (See
Gowrishankar v. Joshi Amba Shankar Family Trust (1996 (3) SCC 1) and S.P. Chengalvaraya Naidu
case (1994 (1) SCC 1).)

15. Fraud is a conduct either by letter or words, which induces the other person or authority to
take a definite determinative stand as a response to the conduct of the former either by words or
letter. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti
Yadav case.

Indian Kanoon - http://indiankanoon.org/doc/1182189/ 3

 K. Jeganathan vs Union Of India on 21 April, 2008

16. In Lazarus Estates Ltd. v. Beasley Lord Denning observed at QB pp. 712 and 713 : (All ER p.
345-C) (1956) 1 QB 702).

No judgment of a court, no order of a minister, can be allowed to stand if it has been obtained by
fraud. Fraud unravels everything. In the same judgment Lord Parker, L.J. observed that fraud
vitiates all transactions known to the law of however high a degree of solemnity. (p. 722) [19]. These
aspects were recently highlighted in State of A.P. v. T. Suryachandra Rao (2005 (6) SCC 149).
Therefore, mere delayed reference when the foundation for the same is alleged fraud does not in any
way affect the legality of the reference.

Para 12: "Looked at from any angle the High Court s judgment holding that Respondent 1 employee
was to be reinstated in the same post as originally held is clearly untenable. The order of termination
does not suffer from any infirmity and the High Court should not have interfered with it. By giving
protection for even a limited period, the result would be that a person who has a legitimate claim
shall be deprived the benefits. On the other hand, a person who has obtained it by illegitimate
means would continue to enjoy it notwithstanding the clear finding that he does not even have a
shadow of right even to be considered for appointment."

7.2. The Supreme Court in the decision in Ram Saran v. IG of Police, CRPF [(2006) 2 SCC 541]
observed in paragraphs 9 to 11 as follows:

Para 9: "In R. Vishwanatha Pillai v. State of Kerala it was observed as follows: (SCC pp. 116-17, para
19) ™9. It was then contended by Shri Ranjit Kumar, learned Senior Counsel for the appellant that
since the appellant has rendered about 27 years of service, the order of dismissal be substituted by
an order of compulsory retirement or removal from service to protect the pensionary benefits of the
appellant. We do not find any substance in this submission as well. The rights to salary, pension and
other service benefits are entirely statutory in nature in public service. The appellant obtained the
appointment against a post meant for a reserved candidate by producing a false caste certificate and
by playing a fraud. His appointment to the post was void and non est in the eye of the law. The right
to salary or pension after retirement flows from a valid and legal appointment. The consequential
right of pension and monetary benefits can be given only if the appointment was valid and legal.
Such benefits cannot be given in a case where the appointment was found to have been obtained
fraudulently and rested on a false caste certificate. A person who entered the service by producing a
false caste certificate and obtained appointment for the post meant for a Scheduled Caste, thus
depriving a genuine Scheduled Caste candidate of appointment to that post, does not deserve any
sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He,
who comes to the court with false claims, cannot plead equity nor would the court be justified to
exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable
manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on
the basis of a false caste certificate by playing a fraud. No sympathy and equitable consideration can
come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the
arms of law in a case where an individual acquired a status by practising fraud. Para 10: Though
the case related to a false [caste] certificate, the logic indicated clearly applies to the present case.

Indian Kanoon - http://indiankanoon.org/doc/1182189/ 4

 K. Jeganathan vs Union Of India on 21 April, 2008

Para 11: This is a case which does not deserve any leniency otherwise it would be giving premium to
a person who admittedly committed forgery. In the instruction (GO No. 29 of 1993), it has been
provided that whenever it is found that a government servant who was not qualified or eligible in
terms of the recruitment rules, etc. for initial recruitment in service or had furnished false
information or produced a false certificate in order to secure appointment should not be retained in
service. After inquiry as provided in Rule 14 of the CCS(CCA) Rules, 1965 if the charges are proved,
the government servant should be removed or dismissed from service and under no circumstances
any other penalty should be imposed."

7.3. Further, the Supreme Court in the decision in Superintendent of Post Offices v. R. Valasina
Babu [(2007) 2 SCC 335] observed in paragraphs 14 and 15 as follows:

Para 14: "The question in regard to the effect of obtaining appointment by producing false certificate
came up for consideration in State of Maharashtra v. Ravi Prakash Babulalsing Parmar wherein this
Court opined that the authorities concerned would have jurisdiction to go into the said question and
pass an appropriate order. The effect of cancellation of such caste certificate had also been noticed
in the light of a two-Judge Bench decision of this Court in Bank of India v. Avinash D. Mandivikar
wherein it was held that if the employee concerned had played fraud in obtaining an appointment,
he should not be allowed to get the benefits thereof, as the foundation of appointment collapses.

Para 15: In this view of the matter, we are of the opinion that in a case of this nature, it might not
have been necessary to initiate any disciplinary proceeding against the respondent."

7.4. In Additional General Manager Human Resource, Bharat Heavy Electricals Limited v. Suresh
Ramkrishna Burde [(2007) 5 SCC 336] once again reiterated the principles laid down in R.
Viswanatha Pillai v. State of Kerala [(2007) 5 SCC 336] and the following passage found in
paragraph 10 may be usefully extracted:

Para 10: "An identical controversy was again examined in R. Vishwanatha Pillai v. State of Kerala
which is a decision rendered by a Bench of three learned Judges. The employee in the aforesaid case
had got an appointment in the year 1973 against a post reserved for Scheduled Caste. On complaint,
the matter was enquired into and the Scrutiny Committee vide its order dated 18-11-1995 held that
he did not belong to Scheduled Caste and the challenge raised to the said order was rejected by the
High Court and the special leave petition filed against the said order was also dismissed by this
Court. He then filed a petition before the Administrative Tribunal praying for a direction not to
terminate his services which was allowed, but the order was reversed by the High Court in a writ
petition. The employee then filed an appeal in this Court. After a detailed consideration of the
matter this Court dismissed the appeal and para 15 of the Report, which is relevant for the decision
of the present case, is reproduced below: (SCC p. 115) ™5. This apart, the appellant obtained the
appointment in the service on the basis that he belonged to a Scheduled Caste community. When it
was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community,
then the very basis of his appointment was taken away. His appointment was no appointment in the
eye of the law. He cannot claim a right to the post as he had usurped the post meant for a reserved
candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a

Indian Kanoon - http://indiankanoon.org/doc/1182189/ 5

 K. Jeganathan vs Union Of India on 21 April, 2008

claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given
under Article 311 of the Constitution. As he had obtained the appointment on the basis of a false
caste certificate he cannot be considered to be a person who holds a post within the meaning of
Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the
appellant got the appointment on the basis of a false caste certificate has become final. The position,
therefore, is that the appellant has usurped the post which should have gone to a member of the
Scheduled Castes. In view of the finding recorded by the Scrutiny Committee and upheld up to this
Court, he has disqualified himself to hold the post. The appointment was void from its inception.
In the light of the above discussion, the contentions made by the learned counsel for the petitioner
that the petitioner should be dealt with leniently must be rejected.

8. On the question that there is no misconduct, it is necessary to refer to the judgment of the
Supreme Court in Union of India v. J. Ahmed [1979 (2) SCC 286]. The following passages found in
paragraphs 9 and 11 of the judgment may be usefully extracted:

Para 9: "The words act or omission contemplated by Rule 4 of the Discipline and Appeal Rules
have to be understood in the context of the All India Services (Conduct) Rules, 1954 ( Conduct
Rules for short). The Government has prescribed by Conduct Rules a code of conduct for the
members of All India Services. Rule 3 is of a general nature which provides that every member of the
service shall at all times maintain absolute integrity and devotion to duty. Lack of integrity, if
proved, would undoubtedly entail penalty.... If Rule 3 were the only rule in the Conduct Rules it
would have been rather difficult to ascertain what constitutes misconduct in a given situation. But
Rules 4 to 18 of the Conduct Rules prescribe code of conduct for members of service and it can be
safely stated that an act or omission contrary to or in breach of prescribed rules of conduct would
constitute misconduct for disciplinary proceedings. This code of conduct being not exhaustive it
would not be prudent to say that only that act or omission would constitute misconduct for the
purpose of Discipline and Appeal Rules which is contrary to the various provisions in the Conduct
Rules. The inhibitions in the Conduct Rules clearly provide that an act or omission contrary thereto
so as to run counter to the expected code of conduct would certainly constitute misconduct. Some
other act or omission may as well constitute misconduct...."

[Emphasis added] Para 11: "Code of conduct as set out in the Conduct Rules clearly indicates the
conduct expected of a member of the service. It would follow that conduct which is blameworthy for
the government servant in the context of Conduct Rules would be misconduct. If a servant conducts
himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct
(see Pierce v. Foster1). A disregard of an essential condition of the contract of service may constitute
misconduct [see Laws v. London Chronicle (Indicator Newspapers)]. This view was adopted in
Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division,
Nagpur, and Satubha K. Vaghela v. Moosa Raza. The High Court has noted the definition of
misconduct in Stroud s Judicial Dictionary which runs as under:

Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or
innocent mistake, do not constitute such misconduct.

Indian Kanoon - http://indiankanoon.org/doc/1182189/ 6

 K. Jeganathan vs Union Of India on 21 April, 2008

9. The petitioner was charge-sheeted for the violation of Rule 3 of the C.C.S. Conduct Rules and the
lack of integrity on his part is clearly proved. The submission that the petitioner must be allowed to
continue in the lower post of Storeman is only stated to be rejected for the reasons already set out.

K.CHANDRU, J.

gri

10. In the light of the above, the writ petition fails and accordingly, will stand dismissed. No costs.

Index : Yes 21..4..2008

Internet : Yes
gri

To

1. Union of India
Rep. by Director General Border Roads
Kashmir House
DHQPO
New Delhi

2. The Chief Engineer

Project Vartak
C/o 99 A.P.O.
Tezpur
Assam District

W.P. No. 8886 of 1998

Indian Kanoon - http://indiankanoon.org/doc/1182189/ 7