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2014 DIGILAW 243 (MAD)

S. Nagarajan v. Chairman, Chennai Port Trust

2014-01-31

N.PAUL VASANTHAKUMAR, P.DEVADASS

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JUDGMENT N. Paul Vasanthakumar, J. 1. The prayer in the writ petition is to quash the order of the first respondent dated 9.12.2011 rejecting the request of the petitioner for reinstatement into service and for a direction to reinstate the petitioner in respondent's office with all backwages. 2. By consent the main writ petition itself is taken up for final disposal. 3. The brief facts necessary for disposal of this writ petition are as follows: "(a) The petitioner's father E.Shanmugam while working as Royal Navy Soldier in Chennai Port Trust died in harness on 29.8.1974. Petitioner and his mother Kuppusammal are the legal heirs of the deceased E.Shanmugam. Petitioner's mother gave her consent for considering the claim of the petitioner for appointment on compassionate grounds and the petitioner was appointed as Shed and Wharf Mazdoor on 25.7.1989 in Traffic department on compassionate grounds. Petitioner produced community certificate to show his community and school certificate to show his educational qualification at the time of joining duty. (b) According to the petitioner, his name having not been found in the legal heir certificate, he was directed to produce an order from the City Civil Court, declaring that he is the son of the said E.Shanmugam, pursuant to which he filed a civil suit in O.S.No.1616 of 1986 on the file of V Assistant City Civil Court, Madras, and the said suit was decreed on 14.8.1987. On production of the said judgment only petitioner was given appointment on 25.7.1989. (c) The second respondent issued a charge memo on 25.5.2001 stating that the petitioner has produced bogus community certificate and bogus school certificate at the time of joining duty. The said charge memo was issued after 14 years of his service and ultimately he was dismissed from service on the said two grounds. According to the petitioner, at the time of joining duty, his mother gave a wrong school certificate to the respondent office. The petitioner studied in the Corporation Middle School, Jaganathapuram, Chetpet, Chennai and produced certificate to that effect as proof of his qualification. According to the petitioner, at the time of joining duty, his mother gave a wrong school certificate to the respondent office. The petitioner studied in the Corporation Middle School, Jaganathapuram, Chetpet, Chennai and produced certificate to that effect as proof of his qualification. (d) Petitioner filed civil suit in O.S.No.5045 of 2002 and challenged the order of dismissal and the XIV Assistant City Civil Court, Madras decreed the said suit by judgment and decree dated 17.12.2004, against which the Chennai Port Trust preferred A.S.No.549 of 2005 and the VI Additional City Civil Court, Chennai dismissed the appeal by judgment and decree dated 31.8.2006. Against the said judgment and decree the Chennai Port Trust filed S.A.No.1045 of 2007 before this Court. Petitioner also filed W.P.No.36358 of 2005 and prayed for issuing a writ of mandamus directing the Port Trust to implement the Civil Court judgment and decree dated 17.12.2004. The second appeal was allowed by this Court by judgment dated 14.2.2011 on the ground that the Civil Court is not the competent forum to challenge the order of dismissal and the remedy open to the petitioner is to raise a dispute under Section 2A of the Industrial Disputes Act, 1947. (e) Petitioner's community certificate was also sent for verification before the State Level Scrutiny Committee, which also found that the petitioner's community certificate as genuine. Based on the findings given by the State Level Scrutiny Committee, petitioner prayed for reinstatement in service. The Division Bench in W.P.No.36358 of 2005 by order dated 14.2.2011 held that it is open to the petitioner to approach the respondent viz., Chennai Port Trust by bringing to its notice of the subsequent development and if such a request is made the Chennai Port Trust shall consider the same in all seriousness. Petitioner thereafter submitted a representation on 8.8.2011 and prayed for reinstatement and for the said representation a reply was given on 9.12.2011 rejecting his request stating that the petitioner has been proceeded for producing bogus community certificate and school certificate at the time of entering into service and the said two charges were proved and therefore he was dismissed from service, which cannot be reconsidered and request for reinstatement was rejected. The said order is challenged in this writ petition by raising various grounds." 4. The said order is challenged in this writ petition by raising various grounds." 4. Respondents 1 and 2 have filed counter affidavit denying the averments made in the affidavit in support of the writ petition and prayed for dismissal of the writ petition. 5. Heard Mr. S.Prabhakaran, learned counsel appearing for the petitioner; Mr. S.Haja Mohaideen Gisthi, learned counsel for respondents 1 and 2; and Mr. A.Nagarajan, learned counsel for third respondent. 6. It is not in dispute that the District Level Vigilance Committee by order dated 30.5.2008 held that the petitioner is a Hindu Adi Dravidar, and the certificate issued by the Tahsildar, Egmore-Nungambakkam Taluk to that effect is genuine. The said finding given by the duly constituted District Level Vigilance Committee has become final. Hence the petitioner's community cannot be doubted by the respondents in the light of the judgment of the Supreme Court reported in (1997) 7 SCC 505 (R. Kandasamy v. Chief Engineer, Madras Port Trust). 7. Insofar as the allegation that the petitioner has produced bogus school certificates is concerned, when the matter was heard on 9.1.2014, this Court suo-motu impleaded the Headmaster of the Corporation Middle School, Jaganathapuram, Chetpet, Madras, as party respondent and the learned standing Counsel of the Corporation of Chennai viz., Mr. A.Nagarajan was directed to take notice and get school records to find out as to whether the petitioner was actually admitted in the said school and completed 5th standard. The original school records pertaining to the petitioner maintained by the school was produced by the Headmaster and we have verified the name of the petitioner as Nagarajan, whose community was stated as Hindu Adi Dravida, who studied in 6th standard 'B' Division and left the school on 19.4.1973 with an endorsement 'long absentee'. The petitioner has also passed 5th standard as per the school records maintained by the third respondent in the annual examination held in March, 1972. His name is found at Sl.No.14 of the School Promotion register. The above original school records were also permitted to be perused by the learned counsel appearing for the respondents 1 and 2. 8. The petitioner has also passed 5th standard as per the school records maintained by the third respondent in the annual examination held in March, 1972. His name is found at Sl.No.14 of the School Promotion register. The above original school records were also permitted to be perused by the learned counsel appearing for the respondents 1 and 2. 8. The Headmistress of the Chennai Corporation Middle School, Jaganathapuram, Chetpet, Chennai, also filed a report on 17.1.2014 in which it is stated that on verification of the school records, viz., attendance register and promotion register it is found that the entry in record sheet dated 5.2.1994 issued by the Corporation Middle School seems to be correct. Thus, it is evident that the petitioner has passed 5th standard and left the school while studying in 6th standard as 'long absentee' on 19.4.1973. 9. In such circumstances, the two reasons stated for initiating proceedings against the petitioner viz., producing bogus school certificate and bogus community certificate are not sustainable. In such view of the matter the dismissal order passed against the petitioner cannot be allowed to stand. 10. The learned counsel appearing for the respondents 1 and 2 submitted that the judgment and decree rendered in favour of the petitioner having been set aside by this Court in S.A.No.1045 of 2007, petitioner ought to have challenged the dismissal order by raising an industrial dispute and the said dismissal order being in force, petitioner is not entitled to get reinstatement with backwages and other benefits. 11. In reply to the said submission, Mr. S.Prabhakaran, learned counsel appearing for the petitioner submitted that the petitioner having been granted permission/liberty to make representation in the common order passed in W.P.No.36358 of 2005 and S.A.No.1045 of 2007 dated 14.2.2011, seeking restoration in service as the community certificate was found to be genuine by the competent authority, it is not open to the respondents 1 and 2 to contend that the petitioner ought to have challenged the order of dismissal. 12. As rightly contended by the learned counsel for the petitioner, this Court having granted liberty to the petitioner by order dated 14.2.2011 to make representation, and the respondents 1 and 2 having been directed to consider the request with all seriousness, the technical objection raised by the learned counsel for the respondents 1 and 2 cannot be sustained. 13. 12. As rightly contended by the learned counsel for the petitioner, this Court having granted liberty to the petitioner by order dated 14.2.2011 to make representation, and the respondents 1 and 2 having been directed to consider the request with all seriousness, the technical objection raised by the learned counsel for the respondents 1 and 2 cannot be sustained. 13. Insofar as backwages is concerned, the petitioner has not worked from the date of dismissal i.e., from 31.5.2002 till now, and now only the order is passed to restore the petitioner in service as two allegations levelled against the petitioner are disproved, we are of the view that the petitioner is entitled to get backwages only from 8.8.2011, i.e., the date of representation submitted in terms of the order of this Court as the respondents have not shown any evidence to prove the employment of the petitioner from 8.8.2011 in any other place. 14. In fine, the impugned order is set aside and the writ petition is allowed with a direction to reinstate the petitioner in service with effect from 31.5.2002, with all service benefits, other than backwages till the petitioner submitted a representation on 8.8.2011, and with backwages from 8.8.2011. For the earlier period, except for backwages, all other service benefits shall be given. The respondents are directed to implement this order and pay arrears of salary to the petitioner from 8.8.2011, within four weeks from the date of receipt of copy of this order. No costs.