Central Administrative Tribunal - Delhi
Shri Ravi Prakash Shivhare vs Union Of India ; Through on 15 July, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.3263/2010 New Delhi, this the 15th day of July, 2011 CORAM: HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. KHUSHIRAM, MEMBER (A) Shri Ravi Prakash Shivhare, S/o Shri Hari Ram Shivhare, Ex. Diesel Assistant, North Central Railway, Jhansi, R/o H.No. 285, Street Garariya, Jama Masjid, Delhi Applicant (By Advocate: Shri B.S. Mainee with Ms Meeru Mainee) Versus Union of India ; Through 1. General Manager, North Central Railway, Allahabad 2. Divl. Railway Manager, North Central Railway, Jhansi Respondents (By Advocate: Shri R.L. Dhawan) O R D E R
By Khushiram:
The applicant in 1995-96 had applied for the post of Diesel Assistant in response to an advertisement, as he possessed the qualifications of Matriculation as well as ITI. He did ITI course in the year 1988-90. On the basis of recommendations of the Railway Recruitment Board, the applicant was appointed as Diesel Assistant in Jhansi Division on 23.9.1996, and after completion of the required training he was appointed to work independently as Diesel Assistant.
2. On 2.3.2001, he was issued a Charge Sheet with the allegation that he secured employment on the basis of fake/bogus ITI Certificate and that the applicant did not possess the minimum technical qualification as required in the Notification and had hidden the fact regarding the genuineness of the ITI Certificate and received salaries and wages by obtaining employment on the basis of fake/bogus certificates. The applicant denied the charges and submitted that the relevant certificates were genuine and verified by the Railway Recruitment Board. After the DE, the applicant was removed from service on 21.2.2002. The appeal filed by the applicant was rejected on 9.5.2002 and the Revisionary Authority also upheld the order of removal from service.
3. The impugned orders were challenged by the applicant before this Tribunal in OA No.676/2003 wherein the Tribunal vide order dated 6.2.2004 held that the procedure followed in the DE was flouted and principles of natural justice were violated. It was also held that the relied upon documents was only a report and once the document is disputed by taking the factum of the certificate, the onus is on the respondents to establish the charge in accordance with rules and law and is not on the applicant to disprove. Therefore, the Tribunal held as follows:-
the enquiry is not being held in accordance with rules and as such the impugned orders cannot be sustained in law. Accordingly, OA is partly allowed. Impugned orders are quashed and set aside. Respondents are directed to reinstate the applicant forthwith. However, this shall not preclude them, if so advised, to take up the disciplinary proceedings from the stage of examination of witnesses having regard to our observation made above. Thus, in compliance of the orders of the Tribunal, the Respondents again held the inquiry from the stage allowed by the Tribunal and held the charge no.1 as proved. The relevant portion of the inquiry report as extracted at pages 92-93 is as under:
It is clear from the above facts that on the basis of bogus I.T.I. certificate the charged employee got employment on the Railways. This is Charge No.1. This charge is proved. Because for appointment, the requisite technical eligibility, certificate of I.T.I. is not proved as correct. The certificate of ITI pass with the charged employee was found to be bogus. Therefore, in accordance with the R.R.B. Notification the applicant was not pass for the post of Diesel Assistant. In other words, in accordance with the Rules the applicant was not pass to submit his application. Therefore, the second charge is also proved.
Certainly, information about the bogus certificate was within the knowledge of the employee and on that basis in order to prove his technical eligibility by submitting bogus I.T.I. certificate, proves the deceitful nature of the employee. Therefore, Charge Number 3 is proved.
Because by submitting bogus certificates as proof and submitting the same, the employee hatched a deceitful conspiracy and afterwards became successful. He took over the charge of Diesel Assistant which should have been done after proving the correctness of the certificates. Therefore, it is clear that on the basis of the certificate by remaining in Railway service he took advantage of the salary payments, on the basis of technical qualifications he received salary and took advantages as a result of that. He got the opportunity of getting this post on the basis of bogus certificate. In other words, he took salary by not being pass. In other words, he availed of the opportunity of getting Railway service by not being eligible/pass. He is guilty of this charge. The charge is proved. Thereafter the Respondents passed the order on 26.11.2008 (Annexure A/1) imposing the punishment of removal from service on the applicant. He appealed against the order of removal from service wherein the Appellate Authority passed the orders on 20.5.2009 (Annexure A/2) upholding the penalty imposed on the applicant. Aggrieved by the decision of the Respondents, the applicant has filed the present OA seeking following reliefs:-
8.1 That this Honble Tribunal may be graciously pleased to allow this Application and quash the impugned orders.
8.2 That this Honble Tribunal may be further pleased to direct the respondents to reinstate the Applicant with all consequential benefits.
8.3 That this Honble Tribunal may also be pleased to award any other or further reliefs which this Honble Tribunal may deem fit and proper keeping in view the facts and circumstances of the case.
8.4 That the cost of these proceedings may kindly be granted in favour of the Applicant and against the Respondents.
4. The Respondents have contested the claims of the applicant by filing a detailed counter reply, stating that the applicant was charged with the following charges:
Article-I He obtained employment in the Railway on the basis of fake/bogus Industrial Trg. Institute Certificate.
Article-II He did not fulfill the minimum technical qualification stipulated in the said RRB notification, and as such was not eligible for the post of Diesel Astt.
Article-III He has, with malafide intention, hidden the fact regarding the genuineness of the ITI certificate submitted by him.
Article-IV He received his salaries and wages after obtaining employment in the Railways on the basis of fake/bogus ITI certificate which has caused financial and pecuniary loss to the railway administration.
Thus by the above said acts, he failed to maintain absolute integrity, devotion to duty and behaved in a manner unbecoming of a railway servant and thereby contravened Rule No. 3.1 (i), (ii) and (iii) of Railway Services (Conduct) Rules, 1966. The Respondents have stated that as per the decision of the Tribunal, they have decided to initiate the proceedings denovo from the stage of examination of witnesses. The then Principal of ITI, Jhansi, Shri J.P. Singh was summoned by the Inquiry Officer, who deposed that no ITI Certificate had been issued to the applicant and again authenticated the letter dated 30.6.2000 wherein he had certified that the ITI certificate submitted by the applicant was fake. Since all the four charges levelled against the applicant were proved, the DA, accepting the findings of the IO, imposed the penalty of removal from service vide the order dated 26.11.2008. It is stated that since the charges against the applicant had been established, the penalty of removal from service is justified. It is also contended that the OA is not maintainable as the applicant had not exhausted the statutory departmental remedy and is thus premature under the law. Since the applicant had not preferred the revision petition to G.M. and he has rushed to the Tribunal, the OA should be dismissed on this count only. The I.O. has conducted the inquiry in accordance with the rules, and given his findings that all the four charges have been established against the applicant. The applicant has not produced any evidence to prove that he had attended ITI course or taken the examination and the Certificate produced by him is genuine. It is also contended that the applicant is not residing within the territorial jurisdiction of the Principal Bench, therefore, the Principal Bench has no jurisdiction in the matter and he may be put to strict proof that he is ordinarily residing in Delhi. It is also contended that the ITI Certificate submitted by the applicant bearing No. JHS/ELU/38 had not been issued from the Office of ITI, Jhansi as per their letter dated 30.6.2000. Since the letter has been received from the Institution, it is deemed to be authentic and cannot be denied.
5. The Respondents have further stated that during the inquiry held on 10.1.2007 the statement of Shri J.P. Singh, the then Principal, ITI Jhansi was recorded, but the applicant refused to cross-examine him on the plea that the original mark sheet and the certificate which were confiscated by Shri K. Ramachandran, V.I., may be returned to him. A copy of the provisional certificate submitted by the applicant to Shri K. Ramachandran is available in the case file and Shri Ramachandran has authenticated this certificate to be the same document which was collected by him earlier for investigation. The letter received from ITI dated 30.6.2000 was authenticated by the then Principal, Shri J.P. Singh, in which it was certified that the ITI certificate submitted by the applicant was fake and the applicant of his own accord did not avail the opportunity to cross-examine him on flimsy grounds. Since only the provisional certificate as submitted by the applicant at the time of joining was collected, so there was no way to return the same. During the whole enquiry process lasting 8 years, the applicant did not make any effort to get a duplicate copy of the provisional certificate or the final certificate from the ITI, Jhansi which is in his home town or produce any other related documents to prove that he had genuinely passed out from the said Institute.
6. The Vigilance Inspector, Shri Ramachandran, CVI had deposed at the enquiry that the said mark sheet cum certificate dated 11.10.1991 was received from the applicant on 1.8.2000. He also deposed before the I.O. that he had not taken any other document from the applicant during the course of his investigation. On the request of the applicant, the CVI Shri Ramachandran was called to cross-examine him by the applicant regarding the seizure of the certificate. On cross-examination, the CVI categorically stated that apart from the provisional mark sheet cum certificate he did not take any other document from the applicant during his investigation thus complying with the requirement of Rule 9 (21).
7. The applicant also appeared before the DA for personal hearing on 14.8.2008 wherein he reiterated the same points as given in his representation dated 21.7.2008. He also promised to produce the original documents regarding his passing of ITI within 3-4 days as against the existing provisional ITI mark sheet submitted by him during his appointment. The applicant was given one more opportunity to produce the same as promised and was accordingly called by the DA on 28.8.2008, but on this date also the applicant failed to produce any document. He also refused to give attendance. In view of the gravity of the proven charges, the punishment given to the applicant is justified and the OA should be dismissed out rightly.
8. The learned counsel for the applicant argued that the respondents have committed the same mistake as had committed in the initial inquiry referring to rule 9.21 of the Railway Servants (Discipline & Appeal) Rules, 1968, which reads as under:
9.21:- The inquiring authority may, after the railway servant closes his case, and shall, if the railway servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the railway servant to explain any circumstances appearing in the evidence against him. Referring to letter dated 1.8.2008 (Annexure A/10), the learned counsel submitted that as per this letter the applicant had produced the original ITI Certificate before the CVI, which had been retained by the CVI in connection with the vigilance investigation. Since the applicant had been requesting to return the original certificate, which was never returned to him, and even the respondents in their counter reply have stated that only the provisional certificate as submitted by the applicant at the time of joining was collected, so there was no way to return the same. The learned counsel contend that unless the original certificate retained by the CVI for investigation is returned, it was not possible for the applicant to secure a duplicate copy of the same from the ITI. Since respondents have not complied with the procedural part of the inquiry, therefore, the orders of removal from service are without any legal basis and not sustainable in law.
9. The applicants counsel also cited the following decisions in support of his case:-
OA No.2020/2006 (Shri Vipin Kumar vs Union of India and Ors) decided by the Principal bench of the Tribunal on 14.7.2006;
Writ Petition (C) No.1760/2008 in the case of Union of India Through Secretary, Ministry of Information and Broadcasting & Anr. vs. Tarlok Singh decided by the High Court of Delhi on 10.3.2011, para 13 of which is extracted here under:
13. Regarding non-compliance of the Rule 14 (18) of CCS (CCA) Rules, the respondent asserted that he had not appeared as a witness during the enquiry, therefore, the enquiry officer was mandated to put the evidence adduced against him during the enquiry. Instead of putting the evidence adduced against him during the enquiry, the enquiry officer only repeated the charges which were against the respondent. It was contended that the rule is mandatory and non-compliance of the same would vitiate the enquiry proceedings. The respondent placed reliance on Ministry of Finance v. S.B. Ramesh, SLJ 1998 (2) 67. The learned counsel for the applicant pointed out that only the charges were repeated during the enquiry and the requirement of Rule 9 (21) has not been complied with wherein the circumstances appearing against the Railway servant in the evidence for the purpose of enabling the railway servant to explain any circumstances appearing in the evidence against him. Repetition of the charges is not the same thing.
S.K. Jain vs Union of India {A.T.R. 1990 (2) C.A.T. 225} decided on 31.7.1989 wherein with regard to supply of documents and summoning of witnesses, it was held that having not given any cogent or substantial reasons for refusing the documents for which the request was made, or for not summoning the witness cited by the applicant this amounts to denial of reasonable opportunity and vitiates the entire proceedings.
Since the applicant in the present case was not given an opportunity to cross-examine the VCI, therefore, the proceedings are vitiated.
10. The learned counsel for the respondents has cited the decision of the Tribunal in OA No.2724/2007 Shri Shahnawaz Ghauri vs Union of India & Ors decided on 2.8.2007. In this case also the allegation against the applicant was that on a fake certificate he was enjoying all the privileges and benefits of a public servant, which is impermissible. Therefore, xxxxx the proceedings cannot be set at naught for technical reasons. It is further stated that there was no attempt to prove the allegations against the applicant by adducing legal evidence. The Principal who issued the letter did not appear as a witness. Only through him, documents could have been proved. This, according to him, is a serious infirmity. However we find difficulty to accept his submissions as above. It is well settled that rigor of Evidence Act does not apply to a domestic enquiry. If applicant had any objection in the matter of proper proof he had opportunity to cross- examine the witness and challenge the veracity of his statement and highlight his incompetence. At this late stage it may not be possible for him to urge that a document which was properly proved could not have been acceptable. Since the applicant in this case had procured employment by producing fake certificate, therefore, the initial burden was discharged by examining witness who proved that the Principal of the Institute had replied to the query that credentials of the applicant were not genuine. At that point of time the burden to prove that the allegations were incorrect fell to the shoulders of the applicant. He could have produced documents showing that he had undergone a course. Or he could have taken steps for bringing on record documents to show that he had as of matter gone through the course and secured the certificate as a right. But the applicant kept away from the enquiry. We do not find any error is committed by the Enquiry Officer in accepting the document issued by the Principal, as authentic, although he had not personally come to prove it.
11. The learned counsel argued that in this case the Principal, ITI, Jhansi had authenticated the letter received from ITI, which was written by him while he was Principal there. He also stated that the document in question i.e. the provisional certificate submitted by the applicant was fake. Therefore, the applicant could have sought copy of the relevant records from the ITI itself and also sought the final certificate. He has produced only the provisional mark sheet at the time of appointment. The applicant was duty bound to prove his case, which he failed to do so. The applicant cannot be given the benefit of the decisions as cited by the learned counsel.
12. We have given deep consideration to the arguments advanced by both the parties, the material on record and the judgments cited by the learned counsels. Admittedly, the applicant had procured the employment on the basis of the provisional mark sheet which was seized from him by the CVI for vigilance investigation and in spite of repeated requests the same was not returned to the Applicant. This document was sought to be verified by writing letter to the ITI Jhansi, who had intimated vide letter dated 30.6.2000 that the mark sheet cum certificate bearing No. JHS/ELU/38 was not issued from the Office of ITI, Jhansi and not only the letter as well as the certificate was proved to be fake by the Principal by getting his statement recorded. The applicant did not cross examine the Principal. Even if we accept that the original provisional certificate for whatever reason could not be returned to the applicant, the onus of proving the same lies on the shoulder of the applicant, as he has to produce the necessary evidence to the effect that he had attended the ITI Course, obtained the certificate after appearing in the examination. The provisional mark sheet is not the final original certificate as it has necessarily to be followed by issue of a final certificate/market sheet, which the applicant neither attempted nor produced at any stage of the enquiry. While during personal hearing on 14.8.2008, the applicant was given one more opportunity to produce the documents as promised and he was called by the DA on 21.8.2008, but on this date he not only failed to produce the document in question but also refused to give attendance. This behaviour of the applicant proves beyond any reasonable doubt that the charges of bogus/fake certificate produced for securing the employment with the respondents are serious and proved. The standards of proof in a department enquiry are not the same as are required to prove a criminal charge. As per the decision of the Tribunal in OA 2724/200 dated 2.8.2007, we hold that the instant OA is devoid of merit and the applicant is only lingering the process to continue in the job on the basis of a fake certificate, which cannot be allowed for indefinite period of time, as he has already enjoyed the benefit of Railway service for 8 years on the basis of the fake certificate produced by him. Accordingly the OA being devoid of merit is dismissed hereby with no order as to costs.
(KHUSHIRAM) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) /pkr/