Smt. Kathija Beevi vs The Dean in Charge, Govt. Rajaji Hospital and The Director of Medical Education

K. Ravichandrabaabu, J.—The writ petition is filed challenging the order of removal from service. The writ petitioner''s husband was serving

as cook in the Government Rajaji Hospital, Madurai and died on 3.10.1989 while he was in service. Consequent to his death, the petitioner was

appointed as sanitary worker on compassionate grounds through proceedings dated 8.10.1990. After 10 years of service, the petitioner was

served with a show cause notice on 22.6.2000 by calling upon her to explain as to why suitable action should not be taken for having submitted

bogus educational qualification certificate at the time of her appointment. Thereafter, an enquiry was conducted and based on the enquiry report,

the impugned order of removal from service came to be passed against the petitioner. The petitioner challenged the said order on several grounds.

It is contended by her that the disciplinary proceedings were initiated with a delay of more than 10 years from the alleged delinquency and

therefore the petitioner was reasonably prevented from making her defence. It is further stated that the requisite qualification for the post of sanitary

worker is only to read and write and therefore the contention of the respondents that the petitioner had produced the bogus certificate has no

relevance to the employment given to the petitioner. In other words, it is the case of the petitioner that she was not gainfully employed due to the

certificate produced by her. It is further contended that the enquiry was not properly conducted by the authority as no witness was examined on

behalf of the prosecution and no documents were marked in the enquiry.

The respondents have filed a counter affidavit and contended that the petitioner produced a certificate at the time of availing the employment, as

if she has passed 6th standard and on verification it was found that the said certificate was not a genuine one. Thus, the respondents supported the

impugned order.

Heard the learned counsel for either side.

The petitioner was admittedly appointed on compassionate grounds as sanitary worker. There is no dispute that the requisite educational

qualification for being appointed as sanitary worker is that the candidate must be able to read and write in Tamil. Therefore, it is crystal clear that

the petitioner was appointed not based on the certificate produced by her which is alleged to be a bogus one since the basic requirement is that the

petitioner should be able to read and write in Tamil. It is not the case of the respondents that the petitioner is not having even such qualification. On

the other hand, their case is that the petitioner produced bogus certificate. However, the fact remains that the petitioner has not obtained

employment showing the said certificate as the qualification, which is admittedly not the requisite one for the post of sanitary worker. Therefore, in

my considered view, the respondents are not justified in passing the order of punishment that too imposing a major penalty of removal from service

by initiating a proceedings after nearly 10 years from the date of appointment. The petitioner got the said appointment on the compassionate

grounds after having lost her husband, who was working as Cook in the Govt. Rajaji Hospital, Madurai. The family circumstances of the petitioner

is also to be taken into consideration.

In similar circumstances, the Hon''ble Division Bench of this Court passed an order in W.P. No. 32129 of 2004 dated 27.8.2008 (K.

Sundaramoorthy Vs. Union of India and Others) by directing reinstatement of the employee with continuity of service, however, without back

wages. The relevant paragraphs 4 to 7 are extracted hereunder:-

Learned counsel appearing for respondents 1 to 3 submitted that since the petitioner had produced a false certificate and the delinquency was

proved in properly conducted departmental proceedings, there is no scope to interfere with the order passed by the Tribunal.

Having heard the learned counsel for both parties at length and having given our anxious consideration to the facts and circumstances of the

case, we feel that the punishment of removal from service, which has the effect of depriving the petitioner of his means of livelihood, is grossly

disproportionate. We venture to so observe so, keeping in view the nature of the post and the status of the petitioner. We also feel that since the

petitioner had not derived any particular advantage by producing the false certificate, the explanation of the petitioner that it was produced under a

bona fide mistaken advice as the original certificate was not immediately available, is acceptable. In those circumstances, we feel that instead of

removing the petitioner from service, some lesser punishment can be imposed.

We are conscious of the position of law that ordinarily the discretion of the departmental authorities relating to imposition of punishment should

not be interfered with by the court of law unless such punishment is grossly disproportionate. We are also conscious of the position that ordinarily

while interfering in such matter, the matter is required to be remanded to the departmental authority for imposing any adequate punishment.

However, in the peculiar facts and circumstances of this case, particularly, when we find that the order of removal had been passed in the year

1999, in order to avoid any further delay, we feel it would be more appropriate to finalise the matter in this Court.

Accordingly, while setting aside the order of removal from service, we direct that the petitioner shall be reinstated in service. Obviously, he shall

not be entitled to any back wages nor such period shall be counted for the purpose of notional increments. However, such period shall be counted

for the purpose of continuity in service including for the purpose of pensionary benefits. This order shall be implemented by respondents 1 to 3

within a period of 30 days from the date of production of a copy of this order by the petitioner to the respondents.

After perusing the said order of the Hon''ble Division Bench relied on by the learned counsel for the petitioner, I am of the view that the case on

hand is squarely covered by the said decision. Accordingly, I set aside the impugned order and direct the respondents to reinstate the petitioner

into service with the benefit of continuity of service for the purpose of pensionary benefits. However, the petitioner is not entitled to any back

wages nor the period during which she was out of service shall be counted for the purpose of notional increments. The writ petition is allowed on

the above terms. No costs.