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Judgment
N. Paul Vasanthakumar, J.—Petitioner seeks to quash the order of the second respondent dated 3.12.1998 terminating his services and to
direct the respondents to reinstate the him into service as Ambulance Cleaner with effect from 14.12.1986 with all consequential benefits.
The facts that are necessary for disposal of the writ petition are as follows.
(a) Petitioner was selected and appointed as Ambulance Cleaner by the third respondent on 9.12.1986 after his name was sponsored through the
Employment Exchange and he joined duty on 14.12.1986. A criminal case was lodged against him for the alleged offence u/s 419 read with
section 34 of I.P.C., and the said case was tried in C.C.No.191 of 1990 on the file of Judicial Magistrate Court, Aruppukottai. In the said case,
along with the petitioner, the District Medical Officer and another were also arrayed as accused. The petitioner was convicted for the offence u/s
419 IPC and was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/-. Against the said order the petitioner
preferred an appeal in C.A.No.55 of 1994 on the file of Sessions court, Srivilliputhur, and the same was dismissed. Petitioner then approached this
Court by filing Crl.R.C.No.361 of 1994 and this Court allowed the same by judgment dated 24.10.1997 setting aside the conviction and sentence
on the ground that no official document was produced during trial of the criminal case.
(b) Subsequent to the order of this Court in the criminal revision case, petitioner submitted a representation to the second respondent seeking
posting, but the second respondent did not pass any orders. Hence petitioner filed O.A.No.6320 of 1998 before the Tamil Nadu Administrative
Tribunal and by order dated 5.8.1998, the second respondent was directed to pass orders within eight weeks from the date of the order.
Thereafter, second respondent passed an order on 3.12.1998 terminating the services of the petitioner, as against which petitioner filed an appeal
before the Director or Medical Services/the first respondent herein on 7.2.1999. As no order was passed in the appeal, petitioner filed
O.A.No.1267 of 1999 challenging the order of termination.
(c) According to the petitioner, he is a Srilankan repatriate and he having been appointed, even though temporarily, his services cannot be
terminated by the reason of the charge, as it attaches stigma. According to the petitioner, originally he was placed under suspension, which was
challenged before this Court in W.P.No.7552 of 1988 and the order of suspension was set aside and consequently the petitioner was reinstated
into the service. Petitioner further stated that the second respondent has not given due respect to the order of this Court in Crl.R.C.No.361 of
1994. According to the petitioner, the vacancy in which the petitioner was appointed is still available and as the petitioner''s employment
registration was cancelled due to his appointment as Ambulance Cleaner and in view of his over age he could not seek fresh appointment and
therefore he is entitled to get reinstatement into service with all attendant benefits.
The Director of Medical and Rural Health Services, Chennai-6 filed a counter affidavit on behalf of the respondents and the relevant contentions
therein are as follows.
(i) The petitioner was selected and appointed by the District Medical Officer, Virudhunagar on 9.12.1986 at the Government Hospital,
Rajapalayam, as Ambulance Cleaner and he joined duty on 14.12.1986. The Employment Officer thereafter informed the District Medical Officer
that the petitioner appears to have impersonated and obtained appointment by producing false certificates and suggested to take legal action
against the petitioner.
(ii) Pursuant to the said communication, petitioner was placed under suspension from 30.6.1988 and a charge memo was issued on 4.7.1988.
Petitioner filed W.P.No.7552 of 1988 and challenged the order of suspension and this Court by order dated 8.12.1988 quashed the order of
suspension and granted liberty to the department to initiate disciplinary action against the petitioner in accordance with law. Subsequently petitioner
was reinstated into service by order dated 27.1.1989.
(iii) According to the respondents, a fresh disciplinary proceeding was initiated against the petitioner and a charge memo was issued under Rule
17(b) of the Tamil Nadu Civil Services (CC&A) Rules on 28.2.1989 and he was again suspended from service. The petitioner, instead of
submitting his defence statement, filed O.A.No.325 and 326 of 1989 and challenged the order of suspension and charge memo. The Tribunal
though initially granted stay of the operation of suspension and charge memo on 21.4.1989, subsequently by order dated 5.3.1991 dismissed the
original applications.
(iv) It is further stated in the counter affidavit that the petitioner committed impersonation and the case was referred to the Police to take criminal
action and a case in C.C.No.191 of 1990 was filed. The learned Judicial Magistrate, Aruppukottai, by his judgment dated 21.3.1994 convicted
the petitioner for the offence u/s 419 of IPC and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of
Rs.1,000/-. Against the said conviction and sentence, petitioner preferred an appeal in C.A.No.55 of 1994 before the Sessions Court,
Srivilliputhur, and the same was dismissed. Then petitioner filed Crl.R.C.No.361 of 1994 before this Court and this Court on 24.10.1997 allowed
the revision case.
(v) Further case of the respondents is that the Joint Director of Health Services issued a charge memo under Rule 17(b) of the Tamil Nadu Civil
Services (Discipline and Appeal) Rules on 20.12.1995 and also passed final order on 23.2.1996 dismissing the petitioner from service for the
proved charges. It is also stated in the counter affidavit that the petitioner filed O.A.No.6320 of 1998 before the Tamil Nadu Administrative
Tribunal seeking posting and the Tribunal by order dated 5.8.1998 directed the second respondent herein to consider the representation of the
petitioner dated 27.4.1998 and pass orders within eight weeks. The Second respondent, in M.A.No.9495 of 1998, after obtaining extension of
three months time to pass final orders, passed final orders on 3.12.1998 terminating the petitioner from service from the date of his appointment
i.e, from 14.12.1986 for the proved charges. Petitioner made a representation before the Director of Medical and Rural Health services and
without waiting for orders to be passed in the appeal/ representation, petitioner preferred the original application.
(vi) The case of the respondents as stated in the counter affidavit is that the District Employment Officer, Virudhunagar, was requested to sponsor
priority candidates for interview and selection for appointment to the post of Ambulance Cleaner, pursuant to which, the name of one
R.Arumugam, S/o.Ramasamy, Anna Nagar, Mallankinar, Aruppukottai Taluk, bearing registration No.8583/85 with date of birth 11.11.1959 was
also sponsored. During interview on 2.12.1986, R.Arumugam, S/o.Ramasamy was selected and appointed by the District Medical Officer under
Rule 7(a)(i) of the Tamil Nadu Basic Servant Rules and it is clearly mentioned in the appointment order that the appointment was purely on
temporary basis and liable for termination at any time without prior notice and without assigning any reason therefor. The candidate viz.,
R.Arumugam joined duty as Ambulance Cleaner on 14.12.1986 forenoon and his services were not regularised. According to the respondents,
even though petitioner''s name is R.Arumugam, his father''s name is Ramaiah and not Ramasamy. Petitioner was directed to produce his original
certificates to find out their genuineness, but he did not produce the original certificates and declaration regarding his father''s name and residential
address and also not produced the Employment Registration card as well as the original letter calling him for interview on 2.12.1986. Since the
original documents were not produced, the department came to a preliminary conclusion that the petitioner impersonated and secured appointment
by cheating the Government.
(vii) Therefore proceeding was initiated by framing a specific charge under Rule 17(b) on 28.2.1989. For the said charge, the petitioner instead of
submitting defence statement, filed O.A.No.325 and 326 of 1989, which were dismissed on 5.3.1991. It is the further case in the counter that
based on the conviction and sentence as confirmed by the Sessions Court, Srivilliputhur, the Joint Director of Health Services, Virudhunagar
passed final orders dismissing the petitioner from service on 23.2.1996. It is also stated that the petitioner impersonated and cheated the
Government to secure appointment suppressing the facts pertaining to his identity, which is different from the real person. It is further contended
that the acquittal of the petitioner in the criminal case has no bearing since as per the records it is found that the petitioner''s father name is Ramaiah
and not Ramasamy and the interview letter is issued only to the Arumugam, S/o.Ramasamy and not to Arumugam, S/o.Ramaiah.
The learned counsel for the petitioner argued that the impugned order of termination is unsustainable and in violation of the principles of natural
justice and the criminal court having acquitted the petitioner it is binding on the department to reinstate him with all back wages.
The learned Government Advocate argued that the petitioner is not the person sponsored by the Employment Exchange, but the person
sponsored was one R.Arumugam, S/o.Ramasamy. The said fact is also made clear from the verification column in O.A.No.1267 of 2000 wherein
the petitioner has stated that his father''s name is Ramaiah, residing at Cheetapatti Pudu Colony, Moolapatti Post, Arakurichi, Karur District.
I have considered the rival submissions made by the learned counsel appearing for the petitioner as well as the learned Government Advocate. I
have also called for the original register and also the Employment sponsorship letter and verified the same, wherein the father''s name has been
corrected by ink as ''Ramaiah'' instead of ''Ramasamy''. In fact, the records were also shown to the learned counsel appearing for the petitioner,
who also admitted the correction made as above.
The correction in father''s name as found by this Court, leads to the conclusion that the person sponsored for selection was one R.Arumugam,
S/o.Ramasamy and not R.Arumugam, S/o.Ramaiah (petitioner herein). Hence, the petitioner has no locus standi to attend the interview and his
selection based on the said interview is void ab initio. The acquittal of petitioner by this Court in the criminal revision case is only with regard to the
punishment for impersonation. Original records were produced before this Court and this Court, after verification of the records satisfied that the
petitioner was not the person actually sponsored for selection to the post of Ambulance Cleaner.
The learned counsel for the petitioner submitted that it is not known who had corrected the father''s name in the interview card and the petitioner
cannot be blamed for such correction. I am unable to accept the said submission as that may be a defence in the criminal case and not for his
continuance in the service, which was obtained by playing fraud. Therefore, I hold that a fraud has been played, may be by the petitioner or
somebody else, but the fact remains that the petitioner is the beneficiary out of the said fraud.
The contention of the learned counsel for the petitioner that no enquiry was conducted before passing the impugned order is unsustainable
because a perusal of the records show that the opportunity given to the petitioner was not availed of by him as could be seen from the order of the
second respondent dated 23.2.1996. The learned counsel for the petitioner then requested for a fresh enquiry. In the back ground of this case, I
am of the view that the conduct of fresh enquiry is a useless formality as propounded by the Honourable Supreme Court in the decision reported in
Aligarh Muslim University and Others Vs. Mansoor Ali Khan, . In that case, the Honourable Supreme Court found that no prejudice has been
caused to the petitioner by not conducting enquiry and even if the enquiry is conducted, petitioner has no defence at all since the petitioner is not
the person entitled to be interviewed and selected.
The above said decision is followed by a Division Bench of this Court in the decision reported in 2002 W.L.R. 876 (L.Justine/V.Haridass v.
The Registrar of Cooperative Societies, Chennai, etc. & Others) and in paragraph 6, the Division Bench held that the theory of principles of natural
justice cannot be put in a straitjacket and it is not an absolute rule that in each and every adverse order, there should be a strict adherence to the
principles of natural justice and one such exception to audi alteram partem rule is absence of any legal right to defend the impugned action and in
fact, such cases are covered by the ''useless formality theory'' propounded by the Supreme Court in the above cited decision.
In this case, the petitioner having been selected in the place of R.Arumugam, S/o.Ramasamy, is not entitled to be considered for selection at all
and the appointment given to him having been found as void ab initio, there is no necessity to conduct enquiry to prove that the petitioner is guilty of
the said allegation.
The Honourable Supreme Court in the decision reported in Vijay Shekhar and Another Vs. Union of India (UOI) and Others, held that if a
fraud has been played and somebody obtained an order, the same is liable to be quashed based on the legal principle that an act in fraud is ab initio
void. In another decision reported in Ram Chandra Singh Vs. Savitri Devi and Others, the Apex Court held that if a decree is found to have been
obtained by fraud, it is a nullity. Applying the said principle in the instant case, I hold that the petitioner is not the concerned person to have been
interviewed and the consequential appointment order issued to the petitioner is a nullity and no benefit will flow from such appointment order.
Moreover, petitioner is not entitled to plead equity in this case as he is the beneficiary of the fraud played. The petitioner was in fact issued with a
charge memo and he was given opportunity, but the he failed to avail of the opportunity. Hence each charge was dealt with and final order was
passed on 23.2.1996 by the second respondent. The said order has become final.
The learned counsel for the petitioner submitted that by the impugned order petitioner''s services were terminated with effect from 14.12.1986
and the department may initiate proceedings for recovery of the salary paid to the petitioner for the period he rendered services. It is made clear
that as the petitioner was paid salary for the period he was allowed to work, no recovery proceeding can be initiated.
The learned counsel for the petitioner ultimately submitted that the petitioner may be given liberty to approach the respondents/department for
a suitable post considering his status as Srilankan repatriate and that his employment registration was also not renewed due to his earlier
appointment. In fact, this Court put a suggestion to the first respondent through the Government Advocate as to whether the said request can be
considered. The first respondent in his proceedings Ref.No.21704/SC1/3/2000 dated 13.2.2006 replied to the Government Advocate, the
relevant portion of which is extracted hereunder,
In continuation of the references referred above, I am furnishing my replies to the directions of the Hon''ble High court regarding provision of re-
employment to Thiru R.Arumugam, S/o. Thiru.Ramiah. The petitioner R.Arumugam, S/o.Thiru Ramiah secured illegal appointment as Ambulance
Cleaner by impersonating Thiru R.Arumugam, S/o.Thiru Ramasamy and he joined in Government Service at Government Hospital, Rajapalayam
on 14.2.1986.
Thiru R.Arumugam, S/o.Thiru Ramiah, has not produced the call letter of the Employment Exchange, Employment Exchange Registration Card
and the Community Certificate, which are very pertinent for establishing his identity. The offence committed by him, not only deprived a Scheduled
Caste person from getting employment, but also it amounts to tampering of Government records, a misconduct, which is unbecoming of a
Government Servant, as per rule 20(1) of the Tamil Nadu Government Servants Conduct (D&A) Rules 1973. He was terminated from
Government service with effect from the date of appointment in Proceedings Ref.No.13101/E3/90 dated 3.12.98 by the second respondent with
effect from the date of his appointment.
Now, the petitioner has sought reappointment in Government Service. Since a petitioner has committed gross violation of Government rules by
depriving the rightful person of his employment opportunity and tampered Government records for his personal gains, it is felt that his plea for re-
appointment in Government Service may not be considered. Moreover, it will be detrimental to the interest of the poor and sick general public who
come to the Government Hospitals for treatment, if his plea is considered.
In the above circumstances, no further liberty need be given to the petitioner.
In the result the writ petition is dismissed. No costs.