(Prayer: Appeal is filed under Clause 15 of the Letters Patent, praying to set aside the order dated 18.12.2020 made in W.P.No.2857 of 2011.)

M.S. Ramesh. J,

1. This Writ Appeal has been filed to set aside the order dated 18.12.2020 made in W.P.No.2857 of 2011.

2. When the appellant herein was working as a Sanitary Inspector in Udagamandalam, a charge memo dated 04.08.2005 was framed under Rule 9(2) of the Tamil Nadu Municipal Public Health Service (Discipline and Appeal) Regulations, 1973 (hereinafter referred to as 'the Regulations'). While the first charge against him was that he had obtained and produced a bogus certificate for B.Sc Chemistry degree and cheated the Government, which is a criminal offence, the second charge was that he had undergone Food Inspectors' training conducted by the Director of Public Health, by producing a bogus certificate and acted as a Food Inspector by lifting food samples, which is highly irregular.

3. Not being satisfied with the explanation dated 22.08.2005 for the purpose, domestic enquiry was conducted against him. During the course of the enquiry, the Enquiry Officer had held both the charges as 'not proved'. However, the Disciplinary Authority, through his proceedings dated 28.08.2009, had deviated from the findings of the Enquiry Officer, predominantly, on a preponderance of probabilities that he had not preferred a police complaint with regard to the bogus degree certificate issued by a Private Study Centre and also that he had not made any attempt to prove that the degree certificate was bona fide. The Disciplinary Authority had also disagreed with the appellant that the degree certificate was not required for any promotion or higher pay.

4. The further explanation dated 11.01.2010 to the deviation proceedings was rejected, and after finding that both the charges against him were proved, the Authority had imposed punishment of compulsory retirement as a measure of penalty, with a rider that his pension and gratuity may be allowed at a rate not less than 2/3rd and not more than full compensation pension admissible to him on the date of his compulsory retirement. When this punishment was put to challenge before this Court in W.P.No.2857 of 2011, the learned Single Judge, without addressing the grounds raised in the Writ Petition, had rejected the same with liberty to the appellant to file a statutory appeal before the Competent Authority. This order passed in the Writ Petition dated 18.12.2020 is assailed in the present Writ Appeal.

5.1 Mr.T.Ranganathan, learned counsel appearing for the appellant submitted that the proceedings of the Disciplinary Authority, after deviating from the Enquiry Officer's findings, is violative of the principles of natural justice. According to him, Rule 9(3) of the Regulations provides for issuance of a show cause notice, after the Competent Authority arrives at a provisional conclusion in regard to the penalty to be imposed, together with a copy of the report of the Enquiring Authority and extending an opportunity to render the delinquent's explanation, which show cause notice has not been issued.

               5.2 It is the submission of the learned counsel that since the punishment order is in gross violation of the procedure contemplated for imposing a major penalty, the appellant would be entitled to challenge the punishment order by invoking Article 226 of the Constitution of India, even though an alternate statutory appeal remedy was available.

6. Per contra, Mr.P.Ananda Kumar, learned counsel appearing for the sole respondent submitted that when the Regulations provide for an appeal the punishment order cannot be maintained, without availing the statutory remedy. As an alternate submission, the Disciplinary Authority had rightly found that since the B.Sc Degree Certificate was found to be bogus, the Food Inspector training undergone by him, on the strength of the bogus certificate, is highly irregular. Therefore, the punishment of compulsory retirement was imposed, which commemorates with the gravity of the charges.

7. We have given our careful considerations to the submissions made.

8. The appellant herein was originally appointed as a Health Assistant in the year 1973. Later on, the nomenclature of the post of Health Assistant was changed as Sanitary Inspector. The educational qualifications required for the post of Health Assistant / Sanitary Inspector is that one should possess a minimum education qualification of SSLC and also a Sanitary Inspector Certificate granted by the Additional Director of Health Services and Family Planning or its equivalent. A degree in B.Sc Chemistry is not a mandatory qualification either for appointment to the post of Sanitary Inspector or for further promotion, which aspect is not under dispute. However, for the purpose of undergoing training on lifting of food samples, the Sanitary Inspectors, who possess B.Sc Chemistry degree, are given preference.

9. During the course of the original enquiry, the Enquiry Officer had held that B.Sc Degree Certificate produced by the appellant as bogus had not been proved beyond doubt, and therefore held both the charges against him as 'not proved'.

10. In Paragraph 9 of the counter affidavit filed by the respondent before the Writ Court, it is stated that during the discrete enquiry, it was found beyond any shadow of doubt that the B.Sc Degree Certificate produced by the appellant was a bogus certificate. This was in consequence of such discrete enquiry that the Disciplinary Authority deviated from the findings of the Enquiry Officer and had come to the conclusion that the certificate was bogus.

11. However, the order of punishment does not reveal as to how such a conclusion was arrived. When the Disciplinary Authority had decided to deviate from the Enquiry Officer's findings that the certificate produced by the appellant was not proved beyond reasonable doubt, to be genuine, there was a duty cast upon him to render his findings with regard to the conclusion arrived by him that the certificate was bogus.

12. When it is the case of the respondent that the Degree Certificate was found to be bogus in the discrete enquiry, the Enquiry Report ought to have been furnished to the appellant, thereby extending an opportunity to him to submit his explanation. Non furnishing of the same would amount to a violation of the principles of natural justice.

13. This apart, no other valid reasons have been assigned in the punishment order except stating that the charges are held to be proved based on a perusal of the relevant documents. In the absence of any material before the Disciplinary Authority to establish that the certificate was bogus, the very basis of the charge that he has produced a bogus certificate, has not been established.

14. The learned Single Judge had rejected the Writ Petition, only on the ground that the appellant had not availed the statutory appeal remedy. The Hon'ble Supreme Court, in the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others, reported in [(1998) 8 SCC 1], while dealing with the scope of entertaining a Writ Petition under Article 226 of the Constitution of India, after referring to the judgments rendered by the Constitution Bench, had held that the alternate remedy shall not operate as a bar, in at least three contingencies namely:

               (i) Where the Writ Petition has been filed for the enforcement of any fundamental right; or

               (ii) Where there has been a violation of the principles of natural justice; or

               (iii) Where the proceedings are wholly without jurisdiction.

15. As set forth in the earlier portion of our order, the order impugned in the Writ Petition was not only a non speaking order, but also in gross violation of the principles of natural justice, since the Disciplinary Authority had come to a conclusion that the appellant's Degree Certificate was bogus, based on a discrete enquiry, which report was not furnished to him.

16. In such circumstances, when there is violation of the principles of natural justice, the appellant would be entitled to invoke Article 226 of the Constitution of India, without availing the alternate remedy as held in Whirlpool's case (supra) .

17. The learned counsel for the appellant also claimed that the Authorities had deviated from Regulation 9(3) by failing to issue a show cause notice for the proposed punishment. The respondent, in their counter affidavit, have claimed that there has been an amendment to the said Regulation, which dispenses with such notice. But, the amended regulation has not been produced before us. However, we do not intend to go into this aspect, since the entire proceedings are flawed, which issue has already been discussed by us in detail above.

18. In the result, we have no hesitation to come to the conclusion that the order dated 24.12.2010, imposing penalty of compulsory retirement, is in gross violation of the principles of natural justice and hence cannot be legally sustained. So also, the order passed in the Writ Petition requires interference, in view of the exception made out for an employee to invoke Article 226 without availing the alternate remedy, in circumstances when there is a violation of the principles of natural justice.

19. Accordingly, the proceeding of the respondent in Na.Ka.No.4904/2004/J4 dated 24.12.2010 is quashed. Consequently, the respondent herein shall pass necessary orders, treating the appellant as having continued in service till his date of superannuation, and extend to him all consequential service and monetary benefits, including pensionary benefits. Such order shall be passed, within a period of four (4) weeks from the date of receipt of a copy of this judgment.

20. Thus, this Writ Appeal stands allowed. No Costs. Consequently, connected miscellaneous petition is closed.