(Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus by calling for the entire records pertaining to the order passed by the first respondent vide his proceedings in C.No.A4/PR-03/07, B.O.No.89/08 dated 18/2/2008 as well as the order passed by the second respondent vide his proceedings in C.No.A2/Apl.8/2008 dated 5/4/2008 and quash the same and consequently direct the respondents to reinstate me into service by giving monetary benefits including back wages and service seniority.)

1. The petitioner has filed the present writ petition seeking for the relief of Writ of Certiorarified Mandamus in calling for the entire records relating to the order passed by the first respondent/Commandant, TSP IX Battalion, Manimuthar, Tirunelveli as per proceedings in C.No:A4/PR-03/07, B.O.No.89/08 dated 18/2/2008 as well as the order passed by the second respondent vide his proceedings in C.No.A2/Apl.8/2008 dated 5/4/2008. Further, the petitioner has prayed for issuance of a direction to the respondents in reinstating him into service by granting monetary benefits including backwages, etc.

2. The petitioners father, while he was serving as a Cook under the first respondent, expired on 5/12/1996. He submitted an application to the first respondent on 26/9/2000 and on 14/7/2002, he was called upon to furnish an undertaking. After complying with the same, he was appointed as Grade II Police Constable in the first respondent/Department.

3. The petitioners brother Ramamurthy, after completing his School Education had not obeyed the advise of his mother and went out of the family and further solemnised an inter-caste marriage. The petitioners entire family members had not recognised his brother Ramamurthy as one of their family members at the time of submitting application to the first respondent/Commandant, TSP IX Battalion, Manimuthar, Tirunelveli.

4. According to the petitioner, he unintentionally mentioned in the application, as if no family member is in any Government employment. Incidentally, his brother Ramamurthy had got an employment as Cook in the Police Department and he is in service.

5. The petitioner was issued with a charge memo on the allegation that he had suppressed the factum of his brothers employment in the Government in the application dated 29/6/2000 which was submitted for the purpose of securing appointment on compassionate ground. Even on 14/7/2008, when he gave an undertaking to the first respondent and reiterated the same.

6. An Enquiry Officer was appointed and in the Domestic Enquiry, three witnesses were examined to prove the charges levelled against the petitioner. Also that eleven documents were marked. The Enquiry Officer submitted his report dated 8/6/2007 holding that the charges levelled against the petitioner have been proved. The first respondent accepted the Enquiry Officers report and passed an order of removing the petitioner from service.

7. The petitioner as against the dismissal order dated 18/2/2008 passed by the first respondent preferred an appeal before the second respondent. But the same was rejected as per proceedings in C.No.A2/Apl.8/2008 dated 5/4/2008 by the second respondent. A revision was filed before the third respondent and the same is under consideration.

8. The learned counsel for the petitioner urges before this Court that though the petitioners brother has got an employment in the Police Department as a Cook, the fact remained that he has never lent financial support to his family members. Further more, considering the status of petitioner, who is living below the poverty line, his appointment on compassionate ground is justified and the omission to furnish particulars about his brother cannot in any way be construed as a violation which justified the mistake of major penalty of dismissal.

9. It is the further contention of the learned counsel for the petitioner that when the petitioners family has been in economic crisis stage and when his brother has left the family in lurch, then, the petitioner is eligible and qualified to be considered for the appointment of Cook.

10. The petitioners brothers post has been a temporary one at a time when the petitioner has submitted his application for the post of Cook. As a matter of fact, even in the brothers appointment order, it is mentioned that at any time, he may be terminated.

11. That apart, the learned counsel for the petitioner contends that the petitioner during his service has not been served with any show cause notice. Indeed, there is no need to initiate disciplinary proceedings against him and that too after he has put in five years of service.

12. The learned counsel for the petitioner cites the decision of this Court in W.RUBEN FRANKLIN Vs. GOVERNMENT OF TAMIL NADU AND OTHERS reported in (2008) 5 MLJ - 1322, wherein, it has held as follows:-

"When it was found by the respondents, based on the certificate issued by the Tahsildar, that the petitioner and the members of his family were in indigent circumstances and when his appointment has been made based on such finding, it may not be open to the respondents to find fault in the petitioners appointment after a lapse of 7 years. When the appointment of the petitioner on compassionate grounds has not been shown to be illegal or contrary to relevant scheme, impugned order of his removal from service is not proper or justified. As such, impugned order set aside. Writ petition is partly allowed."

13. He also seeks in aid of the decision of Honourable Supreme Court in KAMAL NAYAN MISHRA Vs. STATE OF M.P. AND OTHERS reported in (2010) 2 MLJ - 508, wherein it is held hereunder:-

"It is contended that as the attestation form stated that an employee could be terminated without notice, if he furnishes false information, the employee is estopped from objecting to termination without notice. The said contention may merit acceptance in the case of a probationer, but not in the case of a confirmed government servant. No term in the attestation form, nor any consent given by a government servant, can take away the constitutional safeguard provided to a government servant under Article 311 of the Constitution."

14. He relies on the decision of Honourable Supreme Court in UNION OF INDIA AND OTHERS Vs. K.P.TIWARI reported in 2002 - I - L.L.J - 672, wherein it is held thus:-

".... it was unnecessary n this case to examine the question of either law or fact arising in the matter, since the respondent had been appointed (on compassionate ground) and had been in service for more than 5 years now, and it would not be appropriate to disturb that state of affairs by making any other order".

15. The learned counsel for the petitioner to lend support to the contention that punishment of dismissal meted out to the petitioner is an excessive one, relies on the decision of Honourable Supreme Court in SYED KHADER MOHIUDDIN Vs. THE CHAIRMAN, TAMIL NADU PUBLIC SERVICE COMMISSION, MADRAS AND ANOTHER reported in (1997) 2 MLJ - 272, wherein it is held as follows:-

"Justice, equity and fair play demand that the punishment must always be commensurate with the gravity of the offence charged. This Court, in exercising the power under Art.226 of the Constitution of India, therefore, can examine whether the respondents while imposing the punishment of removal from service have properly approached the matter by exercising or refusing to exercise their power. Before this Court can exercise the discretion, this Court has to be satisfied that the order of removal from service was not justified on facts and circumstances of the case. Mere use of abusive or indecorous language by a worker per se cannot be the basis of an order of removal. Imposing the punishment of removal from service for using in temperate and disrespectful language is too severe in the facts and circumstances of the case on hand and it is disproportionate to the seriousness of the charges held proved against the appellant. Therefore, the order of removal from service is liable to be set aside and instead, the appellant shall be entitled to 50% of the backwages only, for the period in question and he has to forego the remaining 50% of the back wages, however, with continuity of service."

16. Also, in the said judgment, the learned counsel for the petitioner, relies on paragraph Nos.17 and 23, wherein it is observed thus:-

"17. In our opinion, the punishment imposed on the appellant for using intemperate language or disrespectful language is too severe in the facts and circumstances of the case. It is true that the appellant has employed knowingly or unknowingly, some sort of intemperate language, which, according to the respondents, is improper and disrespectful. We may also keep in mind that the appellant was charge-sheeted for one misconduct and found guilty for yet another misconduct, which is not the subject matter of the disciplinary proceedings. In our opinion, justice equity and fair-only demand that the punishment must always be commensurate with the gravity of the offence charged. This Court, in exercising the power under Art.226 of the Constitution of India, therefore, can examine whether the respondents while imposing the punishment of removal from service have properly approached the matter by exercising or refusing to exercise their power. Before this Court can exercise the discretion, this Court has to be satisfied that the order of removal from service was not justified on the facts and circumstances of the case. As pointed out by the Supreme Court in the decision reported in RAMA KANT MISTA Vs. THE STATE OF U.P., (1982) 2 L.L.J -472, the use of indiscreet, improper and abusive language may show lack of culture, but merely the use of such language on one occasion unconnected with any subsequent positive action and not preceded by any blame-worthy conduct, cannot permit an extreme penalty of removal from service.

23. As pointed out by the learned Single Judge in the above judgment, mere use of abusive or indecorous language by a worker per se cannot be the basis of an order of removal. The punishment imposed should always depend upon the gravity of the charges levelled against the worker and also in the light of the surrounding circumstances. In the instant case, the facts and the surrounding circumstances of the case should be kept in mind while imposing the punishment. Imposing the punishment of removal from service for using in temperate and disrespectful language is too severe in the facts and circumstances of the case on hand and it is disproportionate to the seriousness of the charges held proved against the appellant. Therefore, the order of removal from service is liable to be set aside and instead, the appellant shall be entitled to 50% of the back wages only, for the period in question and he has to forego the remaining 50% of the back wages, however, with continuity of service. This punishment, in our opinion, is imposed in order to discourage the use of indecorous, indifferent, disrespectful and intemperate language and thereby ensure the prevention of indiscipline among the workers."

17. The learned counsel for the petitioner cites the decision of this Court in V.R.PALANISAMY Vs. DIRECTOR OF COLLEGIATE EDUCATION, CHENNAI AND OTHERS reported in (2009) 1 MLJ - 1071, wherein at paragraph 35 at page No.1082, it is held as follows:-

"In the present case, the petitioner is alleged to have unauthorisedly collected the amount from the students. The petitioner has paid the amount to the College, as pointed out by the second respondent in the proceedings in Na.Ka.No.10376-C3-2000, dated 30/3/2001. For his dedicated service of 25 years, the College-Management had issued certificate of appreciation. Apart from the number of charges, there seems to be no past history except one earlier Writ Petition filed by the writ petitioner. Having regard to the nature of proved charges and the length of service of the petitioner and that there are no previous misconduct, in my considered view, the quantum of punishment of dismissal imposed upon the petitioner is disproportionate to the gravity of the alleged misconduct. Having regard to the long service of the petitioner and other circumstances, the punishment of dismissal from service is modified as compulsory retirement as on 26/6/2002, when third respondent/College has passed the order of imposing punishment of dismissal from service."

18. He relies on the decision of this Court in D.JAGADEESAN Vs. TAMIL NADU WATER SUPPLY AND DRAINAGE BOARD, rep. BY ITS DIRECTOR, MADRAS AND ANOTHER reported in (1997) 2 MLJ - 87, wherein at paragraph 19, it had laid down as follows:-

"In the light of the above referred decision of the Apex Court, I am unable to interfere with the conclusion arrived by the disciplinary authority as well as the appellate authority. However, as far as the penalty, namely, dismissal from service, it is not proportionate to the misconduct as found by the respondents. It is true that both the charges are held as proved. Even though he refused to receive the order of suspension when it was sought to be served at the head office and also at his residence at Cuddalore, the fact remains he received the same on the next working day in his circle office. It is the case of the petitioner that he joined in service as Junior Engineer in the Public Health and Municipal Engineering Service in the year 1970 and he came to be transferred to the respondents Tamil Nadu Water Supply and Drainage Board immediately after formation in the year 1971. Thus, he had rendered service of more than 20 years in the respondents Board. In this back ground, we have to consider whether the punishment namely, dismissal from service is proportionate to the misconduct as found earlier. Regulation 5 of the Tamil Nadu Water Supply and Drainage Board Employees (Discipline and Appeal) Regulations, 1972 deals with penalties, Regulation 5 contains nine penalties. Even though the disciplinary authority and the Board considered that the action of the petitioner attracts Regulation 5 (1) (viii) this Court is of the view that the said punishment is dis-proportionate. As already stated, if this Court satisfies that considering the various aspects beginning from the intimation of the disciplinary proceedings ending with the ultimate order of the disciplinary authority, it is open to this Court either to remit the matter to the authority concerned for passing appropriate punishment or in extraordinary case, after giving sufficient reasons this Court is empowered to interfere in the order penalty or punishment. After carefully analysing the charges and the conclusion reached by the disciplinary authority as well as the appellate authority and after perusing Regulation 5 as stated above. I am of the firm view that the penalty of dismissal from service is certainly disproportionate to the charges."

19. The petitioner/delinquent has been dealt with as per Rule 3 (b) of TNPSS (D & A) Rules 1955 in respect of the following charge.

"Highly reprehensible conduct in having knowingly concealed the fact of his brother Ramamoorthy got appointment in Government Service in TSP X Battalion, Ulundurpet on 25/9/98 as Cook and given false declaration to the effect that none of his family members employed in Government Service and thereby got appointment as Gr-II Police Constable in TSP Battalion on 14/7/2002 AN under compassionate grounds."

20. Admittedly, a Domestic Enquiry has been conducted against the petitioner and the Enquiry Officer has submitted his report on 8/6/2007. The enquiry has been conducted by the Assistant Commandant-II, TSP IX Battalion, Manimuthar. Three witnesses have been examined on the prosecution side and 11 documents have been marked on the side of the prosecution in the Domestic Enquiry. The petitioner has not submitted any preliminary explanation. He has not cross-examined the prosecution witnesses. Further, he has not examined any witness on his side. No documents have been marked on his side. The petitioner submitted a written statement of defence on 22/5/2007.

21. On an appreciation of the oral and documentary evidence on record, the Enquiry Officer viz., Assistant Commandant - II, TSP IX Battalion, Manimuthar has rendered a finding that the charge against the petitioner has been held to be proved.

22. In the instant case, the charge levelled against the petitioner that he has concealed the factum of his brothers appointment in the Police Department. The petitioner cannot take umbrage upon the fact that his brothers appointment has been a temporary one when he has submitted his application as a sincere and faithful aspirant/applicant. It is the duty of the petitioner to furnish a correct and true information when he applies for appointment to a particular post. In normal or usual course, the petitioner should have informed his brothers Ramamoorthys appointment as a Cook in the Police Department. But he has not resorted to that course of action.

23. The contention that his brother has performed an inter-caste marriage and he is not supporting the family members, etc., are all not relevant germane matters in regard to the charge levelled against him. As early as on 26/9/2000 itself, in Ex.P.7 declaration, the petitioner ought to have informed or mentioned about his brother Ramamoorthys appointment in the Police Department. A compassionate ground is a concession/privilege offered by the Government to the family of the deceased Government Servant. Incidentally, the petitioners father has also served in the Police Department as Cook. For furnishing an incorrect declaration or a false declaration that no one has been employed in the Police Department from his family and when the real factum his brother Ramamoorthys appointment in the Police Department has come to light, then in that event, it is candidly clear that the petitioner has concealed the factum of his brothers Ramamoorthys appointment in the Police Department and therefore, it is quite clear that the charge levelled against the petitioner has been proved in the domestic enquiry. The said finding of the Domestic Enquiry Officer dated 8/6/2007 cannot be found fault with by the petitioner in any manner as opined by this Court. The first respondent/Commandant, TSP IX Battalion, Manimuthar, Tirunelveli has accepted the findings of the Enquiry Officer and he has also concurred with the findings of the report of the Enquiry Officer and resultantly, passed an order of punishment of removing the petitioner from service with effect from 17/2/2008 afternoon.

24. Being dissatisfied with the said order of dismissal dated 18/2/2008 passed by the first respondent, the petitioner has preferred an appeal and on 5/4/2008, the Inspector General of Police, Armed Reserve, Trichy has passed an order of rejecting the appeal and he has come to the conclusion that the punishment awarded by the first respondent is appropriate since the petitioner/appellant is not eligible for appointment on compassionate ground. The petitioner as against the order of his appeal being rejected on 5/4/2008 by the competent authority has preferred a revision to the third respondent and the same is said to be pending.

25. It is to be noted that an appointment obtained in a fraudulent manner does not create any unlawful right. On detection of fraud or when the suppressed information comes to the fore, the appointment is liable to be forfeited. Suppression of information or suppressing the information goes into the root of the selection. The omission cannot be said to be a minor slip or accidental or an unintentional one.

26. This Court aptly points out the decision of Honourable Supreme Court in KENDRIYA VIDYALAYA SANGATHAN AND OTHERS Vs. RAM RATAN YADAV reported in (2003) 3 SUPREME COURT CASES - 437, wherein at page No.439, it is held as follows:-

"The object of requiring information in columns 12 and 13 of the attestation form and certification thereafter by the candidate was to ascertain and verify the character and antecedents of the respondent as on the date of filling and attestation of the form to judge his suitability to continue in service. Suppression of material information and making a false statement has a clear bearing on the character and antecedents of the respondent in relation to his continuance in service. A candidate having suppressed material information and/or giving false information cannot claim right to continue in service. The employer having regard to the nature of the employment and all other aspects had the discretion to terminate his services, which is made expressly clear in para 9 of the offer of appointment.

It being not in dispute that a criminal case against the respondent was pending on the date when he filled the attestation form, the information given by the respondent as against columns 12 and 13 as "No" is plainly suppression of material information and it is also a false statement. Admittedly, the respondent is holder of BA, BEd and MEd degrees. Assuming even his medium of instruction was Hindi throughout, no prudent man can accept that he did not study English language at all at any stage of his education. It is also not the case of the respondent that he did not study English at all. If he could understand columns 1 - 11 correctly in the same attestation form, it is difficult to accept his version that he could not correctly understand certain English words, in the ordinary course he could have certainly taken the help of somebody. This being the position, the Tribunal was right in rejecting the contention of the respondent and the High Court committed a manifest error in accepting the contention that because the medium of instruction of the respondent was Hindi, he could not understand the contents of columns 12 and 13. It is not the case that columns 12 and 13 are left blank. The respondent could not have said "No" as against columns 12 and 13 without understanding the contents.

The purpose of seeking information as per columns 12 and 13 was not to find out either the nature or gravity of the offence or the result of a criminal case ultimately. The High Court went wrong in saying that the criminal case had been subsequently withdrawn and that the offences, in which the respondent was alleged to have been involved, were also not of serious nature. In the present case the respondent was to serve as a Physical Education Teacher in Kendriya Vidyalaya. The character, conduct and antecedents of a teacher will have some impact on the minds of the students of impressionable age. The appellants having considered all the aspects passed the order of dismissal of the respondent from service. The Tribunal after due consideration rightly recorded a finding of fact in upholding the order of dismissal passed by the appellants. The High Court was clearly in error in upsetting the order of the Tribunal."

27. After all, the information sought for from the petitioner is mainly with a view to judge the petitioners character and antecedents. It is to be remembered that a cancellation of an appointment or dismissal order must show cogent reasons and unassailable materials to justify the said action.

28. On a careful consideration of the respective contentions and on considering the facts and circumstances of the present case in a cumulative fashion, this Court comes to an inevitable conclusion that the order of the first respondent in C.No.A4/PR-03/07, B.O.No.89/08 dated 18/2/2008 in removing the petitioner from service with effect from 17/2/2008 afternoon and the latter order of appeal filed by the petitioner being rejected by the Inspector General of Police, Armed Police, Trichy in C.No.A2/Apl.8/2008 dated 5/4/2008 do not suffer from any material irregularity or patent illegality warranting any interference in the hands of this Court, sitting in writ jurisdiction.

29. In the result, the writ petition is dismissed, leaving the parties to bear their own costs.