P. Padmanabhan vs Chennai Port Trust

P. Jyothimani, J.—This writ petition is filed against the order of the third respondent dated 14.06.2007 and the enquiry report of the fourth

respondent.

The case of the petitioner is that he was appointed in the respondent Port Trust as a Tracer with effect from 10.09.1982 under the quota

reserved for Scheduled Tribes. His name was sponsored by the employment exchange. At the time of his appointment, he has produced the

community certificate in original issued by the competent authority viz., Tahsildar, Salem Taluk. His services were subsequently confirmed and he

was promoted as a Supervisor Grade II and again he was promoted as a Supervisor Grade I with effect from 24.10.1988 and subsequently,

promoted as an Assistant Engineer. In 1987, when the second respondent has called the petitioner to produce the community certificate and the

petitioner appeared before the concerned Department in person and explained that he has produced the original community certificate at the time

of his appointment but the second respondent issued a memo dated 17.02.1999 framing charge to the effect that the petitioner has failed to submit

original community certificate. The petitioner has submitted his explanation on 02.03.1999 stating that even at the time of entry into service, he has

produced the original community certificate. In spite of the said explanation, further memo was given by the second respondent on 31.05.1999,

directing the petitioner to produce the community certificate. Aggrieved by the said communication, the petitioner has filed W.P. No. 10587 of

1999 and there was an order of interim stay granted by this Court initially. Since the order was not extended subsequently, the third respondent

has directed an enquiry as per his communication dated 15.07.2004. It was challenging the said communication, the petitioner has filed another

writ petition and also obtained an order of interim stay initially, which was subsequently vacated and the appeal filed by the petitioner was also

dismissed by the First Bench of this Court. In the meanwhile, the fourth respondent has commenced enquiry, wherein the petitioner has appeared

and produced the acknowledgment given by the then Superintendent for receipt of community certificate. It is the case of the petitioner that the

enquiry officer has come to the conclusion that the charges are proved based on the ground that the Presenting Officer could not trace the original

community certificate from the office records. The third respondent based on the enquiry officer''s report, has given a impugned direction dated

14.06.2007 to the petitioner to give his written explanation. It is the said direction by the third respondent, which is under challenge in this writ

petition.

It is again the case of the petitioner that he has already produced the original community certificate at the time of entry into service and the

enquiry was not properly conducted and there are sufficient evidence available in the office records to show that the petitioner belongs to

Scheduled Tribe community.

In the counter affidavit filed by the second respondent, it is stated that at the time when the petitioner joined on 23.09.1982 under the quota

reserved for Scheduled Tribe, the petitioner has produced only true copy of the community certificate and not the original. Therefore, the

respondents have asked him to produce the original certificate. In spite of repeated reminders, the original community certificate was not produced

by the petitioner. Therefore, there was a serious doubt as to whether the petitioner belongs to Scheduled Tribe community at all. The charge memo

was framed against the petitioner, to which he has also submitted his explanation. As against the charge memo, the petitioner approached this

Court by filing W.P. No. 10587 of 1999, which came to be dismissed on 26.10.2006 with costs of Rs. 10,000/-. It was as against the said order,

the petitioner has filed W.A. No. 1593 of 2006 and the Hon''ble First Bench of this Court dismissed the writ appeal clearly finding that the

petitioner is able to continue in service on the strength of the interim orders. It was after the dismissal of the writ appeal on 20.12.2006, the

respondents have repeatedly issued reminders for the verification of community certificate to the concerned authorities viz., Chairman, District

Vigilance Committee and District Collector, Salem District and there was no reply. Thereafter, by impugned communication dated 14.06.2007, by

enclosing the enquiry report of the fourth respondent, the third respondent/disciplinary authority has directed the petitioner to submit his written

explanation and ultimately under the impugned order, the enquiry officer after enquiry has found that the charges are proved. It was at that stage,

the petitioner has filed the present writ petition.

Learned Counsel for the petitioner would vehemently contend that when it is the consistent case of the petitioner that the community certificate

has been produced at the time of entry into service, it is false on the part of the respondents to say now that only true copy was produced at that

time. He has also submitted that normally with a true copy, no employer will appoint anybody and therefore, the enquiry is vitiated.

On the other hand, Mr. M. Jagadeesan, learned Counsel for the respondents would submit that this is a clear case of abuse of process of law. It

is contended that at the stage when the charge memo was issued, the petitioner has approached this Court as well as in the year 1999 and got the

order of interim stay and based on the said interim order itself, he managed to continue in service till the writ petition came to be dismissed on

26.10.2006 and even thereafter, not satisfied with the same, he has filed writ appeal, which was also dismissed on 20.12.2006. In such

circumstances, the respondents can only issue notice calling for the explanation based on the enquiry report and without giving any reply to the

enquiry report, the petitioner has approached this Court and also got an order of interim stay, which is not permissible in law.

Heard the learned Counsel for the petitioner as well as the respondents and perused the entire records.

As rightly pointed out by the learned Counsel for the respondents what is impugned in this proceedings is only a notice issued by the third

respondent, calling upon the petitioner to submit his written explanation on the basis of the enquiry report submitted by the fourth respondent and it

is not in dispute that the enquiry was conducted in respect of the charge framed against the petitioner, which relates to the non-production of

original community certificate to show that the petitioner belongs to Scheduled Tribe community. It is admitted by the petitioner himself that he was

appointed under the respondents only on the basis that he belongs to Scheduled Tribe and therefore, it is natural that a certificate to prove that he

belongs to Scheduled Tribe has to be forwarded to the respondents. When the petitioner has participated in the enquiry and enquiry report has

also been furnished, it is not open to the petitioner to approach this Court without submitting his explanation. Therefore, the writ petition is totally

misconceived and premature. A very shocking situation in this case is that even earlier in 1999, when the charge memo itself was issued against

him, he has approached this Court by filing writ petition W.P. No. 10587 of 1999 and admittedly, on the strength of the interim stay obtained from

this Court in the said writ petition, the petitioner continued in the said post. Ultimately, this Court by order dated 26.10.2006, dismissed the writ

petition with costs of Rs. 10,000/-. In fact, while dismissing the writ petition, this Court, in detail, discussed about the entire merits of the case and

held that on considering the relevant materials, the petitioner is not entitled for any relief and in fact, the petitioner has successfully dragged on the

matter and continued in the office on the strength of the interim order obtained from this Court and this Court also directed the respondents to

commence the enquiry within a week from the date of receipt of the order and complete the same preferably within thirty days thereafter and

against the said order of the learned single Judge, the petitioner has filed writ appeal in W.A. No. 1593 of 2006. The First Bench clearly holding

that the judgment of the Supreme Court relied upon by the petitioner in R. Kandasamy v. The Chief Engineer, Madras Port Trust JT 1997 (7) 660

is not applicable to the case of the petitioner and ultimately dismissed the writ appeal, upholding the order of the learned single Judge.

In view of the above said factual position, it is clear that the petitioner, by his conduct, has chosen to drag on the matter for nearly seven years. I

do not see any reason to interfere with the impugned communication of the third respondent.

It is also seen that when the present writ petition came up for admission, this Court has permitted the third respondent to conduct enquiry

against the petitioner and pass final orders but such order shall not be implemented till 30.07.2007.

In view of the above, the writ petition fails and the same is dismissed and it is open to the respondents to communicate the final order to the

petitioner. No costs. Consequently, connected M.P. is dismissed.