Central Administrative Tribunal - Allahabad
Sanjeev Kumar Jaiswal S/O Sri Satish ... vs Union Of India Through Comptroller And ... on 4 March, 2011
Reserved CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH, ALLAHABAD Original Application No. 612 of 2009 Connected with Original Application No. 613 of 2009 Original Application No. 614 of 2009 Original Application No. 618 of 2009 Original Application No. 619 of 2009 Original Application No. 1437 of 2009 Allahabad this the, _04th_day of __March,2011 Honble Mr. Justice S.C. Sharma, Member (J) Honble Mrs. Manjulika Gautam, Member (A) O.A. No. 612 of 2009 Sanjeev Kumar Jaiswal S/o Sri Satish Kumar Jaiswal, R/o 388-A Raja Bara Ka Hata, Mutthiganj, Allahabad. Applicant By Advocate: Mr. Ashish Srivastava Versus 1. Union of India through Comptroller and Auditor General of India, 10, Bahadur Shah Zafar Marg, New Delhi. 2. The Principal Accountant General, (Audit)-I, U. P. Allahabad. 3. Senior Deputy Accountant General (Admin), Office of the Principal Accountant General (Audit)-I, U.P. Allahabad Respondents By Advocate: Mr. S. Chaturvedi O.A. No. 613 of 2009 Yashwant Kumar S/o Sri Sant Lal, R/o Village and Post-Heta Patti, District-Allahabad. Applicant By Advocate: Mr. Ashish Srivastava Versus 1. Union of India through Comptroller and Auditor General of India, 10, Bahadur Shah Zafar Marg, New Delhi. 2. The Principal Accountant General, (Audit)-I, U. P. Allahabad. 3. Senior Deputy Accountant General (Admin), Office of the Principal Accountant General (Audit)-I, U.P. Allahabad Respondents By Advocate: Mr. Satish Chaturvedi O.A. No. 614 of 2009 Vimlesh Sonkar, aged about 35 years, S/o Bachcha Sonkar, R/o 77/37, Circular Road, Newada, Allahabad. Applicant By Advocate: Mr. Ashish Srivastava Vs. 1. Union of India through Comptroller and Auditor General of India, 10, Bahadur Shah Zafar Marg, New Delhi. 2. The Principal Accountant General, (Audit)-I, U. P. Allahabad. 3. Senior Deputy Accountant General (Admin), Office of the Principal Accountant General (Audit)-I, U.P. Allahabad Respondents By Advocate: Mr. Satish Chaturvedi O.A. No. 618 of 2009 Ramesh Chandra Prajapati S/o Sri Ram Swarup Prajapati, R/o Village Mohiuddinpur, Post Shergarh, District Allahabad. Applicant By Advocate: Mr. Ashish Srivastava Vs. 1. Union of India through Comptroller and Auditor General of India, 10, Bahadur Shah Zafar Marg, New Delhi. 2. The Principal Accountant General, (Audit)-I, U. P. Allahabad. 3. Senior Deputy Accountant General (Admin), Office of the Principal Accountant General (Audit)-I, U.P. Allahabad Respondents By Advocate: Mr. Satish Chaturvedi O.A. No. 619 of 2009 Ravikant Tripathi, S/o Sri Jai Ram Tripathi, R/o Village Prithvipur, P.O. Handia, District Allahabad. Applicant By Advocate: Mr. Ashish Srivastava Vs. 1. Union of India through Comptroller and Auditor General of India, 10, Bahadur Shah Zafar Marg, New Delhi. 2. The Principal Accountant General, (Audit)-I, U. P. Allahabad. 3. Senior Deputy Accountant General (Admin), Office of the Principal Accountant General (Audit)-I, U.P. Allahabad Respondents By Advocate: Mr. Satish Chaturvedi O.A. No. 1437 of 2009 Shridhar Mishra, aged about 35 years, S/o Sri Ved Man Mishra, R/o 6/5 A, Alopi Bagh, District: Allahabad. Applicant By Advocate: Mr. Bhagirathi Tiwari Vs. 1. Union of India through Secretary to Government of India, Deptt. Of Personnel, Training and Public Grievances and Pensions, Sanshad Bhawan, New Delhi. 2. Comptroller and Auditor General of India, 10, Bahadur Shah Zafar Marg, New Delhi. 3. The Principal Accountant General, (Audit)-I, U. P. Allahabad. 4. Senior Deputy Accountant General (Admin), Office of the Principal Accountant General (Civil Audit)-I, U.P. Allahabad. Respondents By Advocate: Mr. Satish Chaturvedi O R D E R
By Mr. Justice S.C. Sharma, Member (J) All the above Original Applications are inter connected and involved the same controversy hence in order to avoid the conflicting Judgments/Orders and to save the time, with the consent of the parties counsel, all the six cases are decided by a common Order. The leading case will be O.A. No. 612 of 2009.
2. Under challenge in the above Original Applications are the Orders passed on 08.10.2008 passed by the respondent No. 3, and Order dated 14.04.2009 passed by respondent No. 2 respectively (Annexure A-1 and Annexure A-2). Further prayer has also been made to direct the respondents to reinstate the applicants in the department and extend them all the consequential benefits including monetary and promotional benefits at par with their juniors who have availed the same during this period. Further prayer has also been made to give direction to the respondents to pay the entire salary to the applicants from the period of their removal from service up to the date of reinstatement in service with 15% interest thereupon with all consequential benefits.
3. The facts of the case, in brief, are as follows: -
The applicants appeared in the recruitment of Clerks, 1996 examination conducted by the Staff Selection Commission (SSC for short), Allahabad. The applicants were allotted roll number, as has been mentioned in the OAs, and on 22.09.1996 the applicants themselves appeared and participated in the Written Examination after putting signatures on the attendance sheet in the examination hall before the Invigilator and Supervisor. The procedure about conduct of examination and appearance of the candidates in the Written Examination were prescribed in the general instructions. The answer sheets issued to the applicants were also duly signed by the applicants as well as by the Invigilator/Supervisor after verification and comparison of the photograph of the applicants affixed in the attendance sheet and the admit card issued to the applicants. After passing the Written Test, applicants appeared in the Typing Test on 26.08.1997 after completion of verification and comparison of photographs affixed on the attendance sheet. The applicants were finally selected and recommended for appointment to the post of Clerk in the Office of respondent No. 2 and offer of appointment was issued to the applicants on the post of Clerk in the pay scale of Rs.3050-4590/-; and pursuant to the offer of appointment applicants accepted the offer and joined the services. After joining the department, the applicants had been continuously discharging their duties with the satisfaction of the respondents. However, suddenly on 30.11.1998, the applicants were informed by the department to contact the office of the SSC without specifying the reasons. The applicants appeared before the SSC on 07.12.1998, where they were required to furnish the specimen signature, which were provided by the applicants. In the month of February 1999, the applicant have learnt that a show cause notice has been issued to them to show cause as to why the candidature for clerk grade examination 1996 be not cancelled as the specimen handwriting were not tallied with the signature/script of written examination. These letters were not served on the applicants but it was addressed to the office of respondent No. 3 with a covering letter, asking him to serve the notice upon the applicants. It was served in the month of March. This letter was received in the Office of respondent No. 3 on 05.03.1999. The communication of SSC was never communicated to the applicants from the office of respondent No. 3 and hence the applicants had no occasion to furnish their reply to the aforesaid show cause notice. Vide letter dated 31.03.1999, the Office of SSC without ascertaining the facts whether the show cause notice was served upon the applicants or not, acted with pre-detrimentally and cancelled the candidature of the applicants in the recruitment of the Clerk Examination 1996. The applicants were also debarred from appearing in the examination conducted by the S.S.C. for a period of three years. This letter was served on the applicants and it was also sent to respondent No. 3 to serve on the applicants. On 27.03.2000, an Office Memorandum was issued by respondent No. 3 whereby the applicants were intimated that since the specimen signature obtained from them, did not tally with the signature in the Written Examination, which has been confirmed by the report of Government Examiner of the Questioned Documents (later on called as GEQD). The candidature of the applicants were cancelled vide letter dated 31.03.1999 and it has been alleged that the applicants attempted to procure appointment fraudulently. A charge sheet was also received by the applicant on 02/03-09-2002 containing the sole charge that while taking examination of Clerks conducted by Staff Selection Commission used fraudulent means by procuring impersonation with intention to secure employment in the Government through fraud and criminal means which was directed by the SSC and the SSC has cancelled the candidature of the applicants debarring them from taking examination for a period of three years and this act of impersonation on the part of the applicants amounted to a conduct unbecoming of a Government servant being violative to the Rule 3 (1) (i) & (ii), photostat copy of the charge sheet is annexure A-9. The inquiry was conducted vide order dated 27.01.2003, and the applicants were held guilt of misconduct on the basis of the order issued by the SSC and accordingly, the applicant were removed from service and removal order has also been filed. Appeal was preferred on 28.04.2003, which was rejected vide order dated 26.05.2003. Aggrieved from the order, the applicants preferred O.A. No. 760 of 2003, and the Original Applications on behalf of other applicants in other OAs were also filed challenging the order of SSC dated 31.03.1999, and the order of removal has also been challenged. The order of removal was challenged on the ground that the penalty was not imposed by a competent authority in accordance with the rules and that the entire disciplinary proceedings were wholly illegal, arbitrary and violative to the principle of natural justice, as well as not in accordance with the procedure laid down for holding the disciplinary proceedings read with Article 311 of the Constitution of India, and no opportunity was provided of defence. It is alleged that the order of cancellation of the candidature of the applicants by the SSC was patently void abinitio as much as the same was inflicted upon the applicants without affording any due opportunity whatsoever as neither the show cause notice nor the final decision of cancellation pursuant to the aforesaid show cause notice was served upon the applicants. The O.A. was finally heard and allowed vide order dated 11.02.2004 and it was decided by the Tribunal that the decision of S.S.C. canceling the candidature of the applicants is unsustainable due to the reason of non-compliance of principle of natural justice. Details have been given of the grounds on which the Tribunal had set aside the decision of the respondents. Being aggrieved from the Order of the Tribunal, the A.G.U.P., Allahabad filed separate Writ Petition No. 20679 of 2004 against the applicants and the SSC also filed a separate Writ Petition against the applicants. Both the Writ Petitions were decided separately by the Honble High Court vide Judgment dated 19.09.2005, annexure A-2 is the copy of the Judgment. The Judgment of the Tribunal was up held by the Honble High Court and it has also been held that the appointing authority, under whom the applicants had been working, can pass the appropriate order. The SSC being a selecting body ceased its authority to pass any order or canceling the candidature of the appointed candidate by the respective department. It has also been held that the order of cancellation of candidature cannot be sustained. The termination order of the applicants was passed by respondent No. 3 as a consequence of cancellation of candidature of the applicants by the SSC and, as such, the cancellation order is without jurisdiction and that the termination order of the applicants is based on the cancellation of candidature is wholly illegal, bad and violates the principle of natural justice. A S.L.P. was also filed before the Honble Apex Court and the same was dismissed on 15.02.2007 with the observation that the Honble Apex Court did not intend to interfere with the impugned Judgment with a liberty to the department to initiate proceeding against the applicant. As a consequence of the decision dated 21.03.2007, the respondent No. 3 issued order directing further inquiry to be held under CCS (CCA) Rules, 1965 against the applicants and further ordered that the applicants shall be deemed to have been placed under suspension under sub rule 4 of Rule 10 of CCS (CCA) Rules, 1965 w.e.f. 27.01.2003. A show cause notice was also served on the applicants, alleging, placing reliance on the decision of the SSC, that the signature and handwriting of the applicants as available in the application form of recruitment of Clerk 1996 on the basis of the above examination and specimen handwriting provided by them did not tally with the signatures bearing on attendance sheet in the written examination/typing test and script of written/typing test. It has been alleged that the integrity of the applicants was doubtful as they tried to procure the Government job by adopting irregular means, which was contrary to the decision of allegiance taken by the applicant at the time of examination. It is stated that the allegation leveled against the applicant is based on the wrong assumption and irregular consideration on the basis of certain wrong information. It is stated that the respondents illegally placed reliance on the conclusion of the SSC regarding impersonation. A charge sheet was also served on 31.08.2007 with the proposal of holding enquiry against them under Rule 14 of CCS (CCA) Rules, 1965, a copy of the charge sheet is annexure A-17. The charges leveled against the applicants are against the facts and factual position and it is based on the report of GEQD. An Enquiry Officer (for short EO) was also appointed to conduct the enquiry. Several irregularities were committed by the EO during the enquiry, a list was submitted to the respondents of the documents in order to supply the documents to the applicants, but some of the documents were supplied and most of the documents were not supplied. All the documents were relevant in the enquiry, defence witnesses were summoned but the EO did not summon the defence witnesses. The original report of the handwriting expert has not been produced and he was not put for cross examination by the applicants. Prejudice has been caused to the applicants. The applicants denied from all the allegations made against them. That in violation of the Order of the Tribunal, the respondent No. 3 failed to proceed with the inquiry in accordance with law, and the charge sheets have been issued. That charge of impersonation has already been proved against the applicants and their candidature had already been cancelled by the SSC whereas the order of cancellation passed by the SSC had already been declared unsustainable due to non-compliance of the principle of natural justice. No inquiry was conducted in regard to the charge of alleged inquiry of the applicants of impersonation whereas the categorical finding was recorded by the Tribunal to that effect. Moreover, the decision of the SSC was behind the back of the applicants and they were not provided any opportunity prior to passing the order by the SSC. The EO was not justified in placing reliance on the report of GEQD. The Invigilator was not examined during the course of the enquiry who was present at the time of the examination and the Centre Supervisor was also not examined. The applicants have no other efficacious remedy except to approach the Tribunal hence the O.A.
4. The respondents contested the case and filed the Counter Reply. It has further been alleged that the Honble Supreme Court in a catena of Judgments have already set out the principles of law with regard to the role and jurisdiction of the Disciplinary Authority (for short DA) and the extent and limit of powers of judicial review of the Tribunal and superior Courts. It is stated that the DA is the sole judge of the facts and the quantum of punishment to be imposed in case of proved misconduct, unless the same is completely disproportionate or against judicial conscience of a superior court. It is stated that the Tribunal and Courts, by way of a self imposed limitation do not exercise the power of judicial review to re-appreciate evidence or substitute their own view for that of the DA as the Tribunal and the superior courts are concerned with the decision making process and not the decision itself. The Tribunal or the Courts shall only interfere when it is a case of no evidence or where the DA has acted perversely. In coming to this conclusion, the superior courts have laid down that insignificant discrepancies or narrow technicality cannot come to aid in overturning the consequences arrived at by a DA. It has further been alleged that the applicants have been found guilty of getting Government job by impersonation during the recruitment test conducted by the SSC in the de-novo departmental enquiry leading to imposition of penalty of removal from service, which has been upheld by the Appellate Authority. The applicants have used unfair means by procuring impersonation with intention to secure employment. This fact could be detected only at the time of scrutiny/checking/tallying of answer scripts of written examination and type test of successful candidates. Thereafter, signatures of the applicants were also obtained. The opinion of the handwriting expert was also obtained and on the basis of the report, it was confirmed that the applicant actuated with impersonation. It is stated that the heavy burden lies on the applicant to prove that the notices were not served. This fact could have been proved or disproved only if the SSC has been impleaded as party and that the SSC has not been impleaded as party hence the applicants cannot get the benefit of this fact. However, there was no obligation on the part of the respondents to serve notice upon the applicants. It is alleged that since SSC cancelled the candidature of the applicants and hence the SSC is a necessary party. It has further been alleged that since the cancellation order was set aside and it was held that after the applicants have been appointed and the same could not have been cancelled by the SSC. From this fact that cancellation order was set aside, it cannot be presumed that no inquiry could have been conducted. The applicants had obtained the appointment by procuring impersonation hence there is no illegality in holding the enquiry. The enquiry was conducted in accordance with law. It is wrong to allege that no evidence is available on record with regard to impersonation. The order passed by the SSC was set aside with further stipulation that since the candidates have already joined, therefore the enquiry, if any, has to be conducted by the department. The document with regard to impersonation is available on record in the shape of the report of the Handwriting Expert, prepared by the Handwriting Expert, which is a valid document, and there is no illegality or arbitrariness in the same, consequently, the finding recorded in the disciplinary proceeding during charge of impersonation is perfectly correct and valid. It is wrong to allege that the charge of impersonation has not been proved. Moreover, it is wrong to allege the EO has refused to supply any documents, which were relevant to disprove the charge for impersonation. Each and every documents, which were relevant to prove the charge of impersonation, were made available to the applicants. The applicants failed to show the documents, which were asked by them, as relevant. The order of the SSC of cancellation was wrongly challenged on mere technicalities. The document on the basis of which the cancellation order was passed never lost its significance and is a relevant document. Consequently, the EO has not committed any illegality in placing reliance upon the said document and so by the DA in passing the punishment order. The enquiry was conducted on the basis of relevant document. On the basis of report of Handwriting Expert, the SSC was of the opinion that the applicants had appeared in the Written Test. It is wrong to allege that the EO surpassed the norms of principle of natural justice. It is also wrong to allege that the EO has acted arbitrarily to prove the charge. Although it is a fact the Honble High Court set aside the report of the handwriting expert but merely due to this reason it is wrong to allege that the report cannot be based for canceling the candidature and the report could not have been taken into consideration. The report of the Handwriting Expert was material document to prove the charge of impersonation. Further respondents alleged that it is wrong to allege by the applicants that certified copy of the report of GEQD, Shimla could not have been relied by the EO. The report of GEQD, Shimla is a certified copy of the report and it did not require to be proved by producing the evidence regarding authenticity of the said report. The report is an authentic document and has rightly been relied by the respondents, and the authorities have also not committed any illegality by passing the punishment order on the basis of the said report. Averments made in the O.A. have specifically been denied by the respondents and prayed that the O.A. is liable to be dismissed.
5. We have heard Mr. Ashish Srivastava, Advocate for the applicants in O.A. No. 612, 613, 614, 618 and 619 of 2009, Mr. Bhagirathi Tiwari, Advocate for the applicant in O.A. No. 1437 of 2009, and Advocate for the respondents in all the Original Applications, and also perused the entire material available on record.
6. From perusal of pleadings of the parties, it is evident that it is an admitted case of the parties that the applicants appeared in the recruitment of Clerk, 1996 Examination conducted by the SSC, Allahabad on 22.09.1996. It is also an admitted fact that the applicants were finally selected and appointed to the post of Clerk in the Office of respondent No. 2 and appointment letter was issued on 25.05.1998, and in pursuance of the appointment letters, the applicants joined in the Office of respondent No. 2. It has been alleged by the applicants that they themselves appeared in the Written Examination on 22.09.1996, they put their signatures on the attendance sheets and their photographs were compared by the Invigilator; no complaint was submitted by the Invigilator that some imposture appeared in the Written Examination on behalf of the applicants. The respondents denied from this fact. It has further been alleged that the respondents informed the applicants on 30.11.1998 to contact the office of SSC without specifying the reasons. The applicants appeared in the Office of the SSC on 07.12.1998, and the applicants were required to furnish the specimen signature, which were provided by the applicants. And, thereafter the applicants came to know about the action of the respondents regarding cancellation of their candidature of the examination of the Clerk, 1996. Earlier the enquiry was conducted by the respondents and the applicants were removed from service and also debarred from appearing in future examination conducted by the SSC for a period of three years. This order was passed on 13.03.1999 without ascertaining the facts by the SSC. The SSC sent the copy of the order dated 13.03.1999 to the respondent No. 2 and 3 on 12.04.1999 and it was specified in the memorandum by respondent No. 2 and 3 that the specimen signature of the applicants did not tally with the signature in the Written Examination and which has been confirmed by the report of the Government Examiner of the Questioned documents, Bureau of Police Research Development and placing reliance on the report of GEQD, the SSC cancelled the candidature of the applicant vide order dated 13.03.1999, and show cause notice were also served. In the enquiry, the applicants were held guilty for misconduct on the basis of the Order issued by the SSC and the applicants were removed from service even, the Appeal was also dismissed on 26.05.2003. The order was challenged in O.A. No. 709 of 2003 and through other OAs on behalf of the other applicants, and the Order passed by the respondents was quashed by the Tribunal on 11.02.2004. The Order passed by the Tribunal was challenged before the Honble High Court, Allahabad in the Writ Petition, and the Writ Petition of the A.G.U.P. as well as of the SSC were dismissed by the Honble High Court vide Order dated 19.09.2005. Against the Judgments of the Honble High Court, the respondents preferred a SLP before the Honble Apex Court and even the SLP was dismissed on 15.02.2007.
7. From perusal of the Judgments passed by this Tribunal in O.A. No. 709 of 2003 and other connected O.As on 11.02.2004 it is evident that the impugned order passed by the respondents was quashed. It is just and proper to reproduce the Order passed by the Tribunal: -
For the reasons afore stated, the O.As succeed and is allowed. The impugned orders are quashed. The applicants are entitled to get the consequential benefits in accordance with law. Nothing herein shall, however, preclude the appointing authority from proceeding in the matter in accordance with law. No order as to costs. Hence from perusal of the Order passed by the Tribunal, it is evident that the Original Applications were allowed but a liberty was given to the respondents to proceed in the matter in accordance with law. On liberty given by the Tribunal in the Original Applications, the respondents conducted the fresh enquiry. Even the Writ Petitions preferred against the Judgment of the Tribunal, were dismissed. Writ Petition No. 56112 of 2004 Union of India and others Vs. Ashok Kumar Maurya and four others and Writ Petition No. 20676 of 2004 Principal Accountant General and three others vs. Ashok Kumar Maurya and 3 others were instituted and both the Writ Petitions were dismissed separately vide Judgments passed by the Honble High Court on dated 19.09.2005. The Honble High Court also held that the Tribunal has clearly given liberty to the appointing authority for proceeding in the matter in accordance with law. Therefore, the Writ Petition is devoid of merit and was dismissed. The Order passed by the Honble High Court was challenged in the SLP No. CC 4656 of 2006 Union of India and others vs. Sanjeev Kumar Jaiswal and others. The Honble Apex Court ordered, Having regard to the fact that prima facie we are of the opinion that the respondents services could have been terminated only upon initiation of departmental proceedings, we do not intend to interfere with the impugned judgment. The Special Leave Petitions are dismissed. However, the appointing authority, it goes without saying, is entitled to initiate a fresh departmental proceeding against the first respondent. The SSC also filed separate SLP No. 4259 of 2006 and this SLP was also dismissed by a separate Order.
8. From perusal of the Judgment of the Tribunal, the Honble High Court and the Honble Apex Court, it is evident that although Original Applications were allowed but a liberty was given to the respondents to conduct a fresh departmental enquiry in accordance with law. Hence, liberty was given to the respondents for conducting the fresh enquiry. A show cause notice was served to the respondents and thereafter the enquiry was conducted by the EO. It has been argued by learned counsel for the applicants that the respondents in the earlier O.As as well as in the present OAs placed reliance on the report of SSC based on the report of GEQD, learned counsel also argued that in the present enquiry conducted in pursuance of the direction of the Tribunal, the respondents conducted the enquiry placing reliance on the report of the SSC based on the report of GEQD, and that the respondents committed gross illegality in placing reliance on the report of SSC based on the report of handwriting expert and that the Honble High Court set aside the finding. It has also been argued that the SSC did not conduct the enquiry in accordance with law. No opportunity of being heard was afforded to the applicants and the SSC out rightly placed reliance on the report of GEQD as if the report of GEQD is gospel truth. We have perused the Judgment passed by the Honble High Court and regarding the role played by the SSC, the Honble High Court commented as follows: -
The Staff Selection Commission is a body like State Public Service Commission or Union Public Service Commission. The said body has been made by the Ministry of Personnel and Training only for the purpose of recruitment to the posts which are outside the purview of the Union Public Service Commission. Immediately after the selection and appointment petitioner no. 3 has got no right or jurisdiction to cancel the candidature of any candidate who have already been selected and appointed. It is only the appointing authority who can initiate any action against their employees. There is no relationship of Master and Servant between the petitioner and respondent No. 1. Therefore, the order of cancellation of candidature of the respondent no. 1 is without any jurisdiction. On the basis of this observation of the Honble High Court, learned counsel for the applicants vehemently argued that as the order of cancellation of candidature of the applicants in the earlier O.A. was held without jurisdiction and hence the respondents of the present O.A. acted illegally in placing reliance on the report of the SSC. In that matter, the respondents were required to conduct the enquiry regarding impersonation de novo. Whereas the respondents in the enquiry placed reliance on the report of the SSC without verifying that what has been alleged by the Honble High Court regarding the report of the SSC. No enquiry was conducted by the respondents as per direction of the Tribunal on the point that the specimen signature of the applicants were compared with the disputed signature by the handwriting expert, and based on the report of the Government expert, SSC submitted the report to the respondent No. 2 for canceling the candidature of the applicant. Even that matter of the disputed signature ought to have been re-investigated by the respondents of the present O.A. and hence the respondents committed gross illegality in placing reliance on the report of the SSC based on the report of the Govt. handwriting expert.
9. A show cause notice was served to the applicants to the effect It was intimated by the Staff Selection Commission, Central Region, Allahabad that the signature and handwriting of Shri Sanjeev Kumar Jaiswal, Roll No. 2428463, Rank Number 7/SLY/0176/YO, as available in his application form of Recruitment of Clerk, 1996 Examination and the specimen handwriting provided by him, did not tally with that in the photo bearing attendance sheet of the Written Examination/Type Writing Test and script of Written Examination/Type test. Under these circumstances, it is evident that the reliance was placed on the report of the SSC based on the report of GEQD. Final enquiry report is also before us. It has been commented by the EO in the report After backtracking from his earlier stand the CO objected that the opinion and covering letter were attested copies and not the original one, and hence cannot be relied upon. Prosecution side argued that these attested documents were communicated to this office on 25.06.2002 by the Staff Selection Commission (CR) Allahabad and therefore no question regarding its authenticity should arise. The defence side argued that the listed documents must be produced by any witness. In this reference it is stated that there is no witness from the prosecution side as Annexure IV is Nil. However it is submitted that the documents were received in this office through official communication forwarded by the Staff Selection Commission. Therefore, there is no doubt regarding its authenticity and genuineness. Hence, perusal of the report shows that much reliance has been placed on the report of SSC based on the report of the GEQD. It is also material that even the original report was not submitted during the enquiry on the record and only attested copies were submitted and the certified copy was relied as if it cannot be tampered with. It has further been commented by the EO As far as documents from the prosecution side are concerned both the documents are authentic and genuine. The first one i.e. certified copy of the opinion of (Government examiner of Questioned Documents) Shimla has been received from the Staff Selection Commission 25.06.2002 in this office. Regarding its authenticity it is to submit that the documents were issued by a Government department and attested copies were communicated to this office by a Government Department i.e. Staff Selection Commission. Therefore, no question may arise regarding its authenticity. Firstly, the report of the GEQD was accepted as the evidence without if and but as a gospel truth and that it cannot be questioned. Moreover, even the certified copy was relied by the EO in the report as it was issued by a Government department. Learned counsel for the applicants argued that all the proceedings conducted by the EO show that no fresh enquiry was conducted regarding the fact that whether on behalf of the applicants somebody else appeared in the examination and that unfair means were used by the applicants in order to procure the appointment. On the basis of the report of the GEQD, the EO reached on the conclusion that the charges are undoubtedly sustainable in view of the opinion of the expert agency i.e. GEQD, Shimla.
10. Learned counsel for the respondents during arguments also admitted that no fresh enquiry was conducted in order to ascertain that whether some imposters were appeared on behalf of the applicants in the examination conducted by the SSC in the Recruitment for Clerks, 1996 and whatever were stated by the SSC based on the report of GEQD was relied and thereafter conclusions were drawn on the fact that this is un-rebuttal presumption regarding the report of GEQD and it is to be accepted as it is. Learned counsel for the applicants argued that position of law is entirely different regarding authenticity of the report of the handwriting expert. Learned counsel for the applicants in support of his arguments cited a case law reported in 1988 (1) IV All India Services Law Journal page 242 H.L. Sethi vs. The Municipal Corporation, Shimla, and others. The relevant portion of the Judgment of the Honble High Court of H.P. is quoted below: -
In view of the aforesaid legal position, it is apparent that the second respondent acted wholly without power, authority and jurisdiction in calling for the opinion of the Government Examiner of Questioned Documents and in relying upon the same for the proof of articles of charge No. 1 and 2 and, more particularly, in proof of article of charge No. 1 on which there was disagreement between the inquiring authority and him. It has further been held by the Honble High Court of H.P. regarding the admissibility of the report of the handwriting expert. The relevant portion is quoted below: -
Experts opinion, made to rely upon Experts opinion obtained by Disciplinary authority after getting Inquiry report Experts opinion relied upon without putting him for cross examination by the applicant Held the science of Handwriting was complex and opinion of expert not supported by reasons could not be relied upon without being tested. Hence, in view of the Judgment of the Honble High Court of H.P., the report of the handwriting expert, even of the Government handwriting expert, cannot be placed reliance blindly, and the handwriting expert must be produced in evidence for cross examination. In the present case, the handwriting expert was not called in order to prove his report during the course of enquiry, and without proof the reliance was placed on the report of the GEQD. In our opinion, this is wholly wrong approach of the EO to accept the report of the GEQD as a gospel truth, and placing reliance on the report of handwriting expert without his presence in the witness box for cross-examination. EO is wholly unjustified in commenting that the report of the handwriting expert cannot be questioned, and it has to be accepted as it is. Firstly, the enquiry was not conducted in the presence of the applicants. Moreover, photographs by the Government experts were not taken in the presence of the applicants hence it cannot be said that whether the photographs were taken by the Government handwriting expert of the relevant documents. Besides the report of the handwriting expert, there could have been a lot of evidence in order to proof that some imposter appeared in the examination on behalf of the applicants. The Invigilator, who was present in the examination hall at the time of the examination, and Centre In charge could have been the best witness to prove this fact. It is also a fact that this matter was not detected by the Invigilator at the time of examination that some imposter appeared on behalf of the applicants. It was much after the examination that the SSC came to the conclusion that some imposter appeared and hence the applicants were called for specimen signature so that same can be sent to the Government expert for comparison. Moreover, the answer sheets submitted by the applicants could have been most material piece of evidence in order to prove that. It was not sufficient for the respondents to place a reliance on the report of GEQD called by the SSC without producing the original report as well as the documents, which were sent for comparison to the handwriting expert. Even the EO was competent to arrive at a conclusion independently to the GEQD, on the basis of documents produced before him that some imposter appeared on behalf of the applicants in the examination but no such exercise was done by the EO on this fact.
11. The report of expert is admissible under Section 45 of the Indian Evidence Act. It has been provided in the Section 45 When the Court has to form an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts. Such persons are called experts. Hence, the report is admissible under Section 45 and there is catena of Judgment of the Honble High Court and Honble Supreme Court, which provides that without producing the handwriting expert in the witness box, the report cannot be accepted as a material piece of evidence or as a gospel truth. The report of the handwriting expert is a piece of evidence like other evidence and it has got no special signifies as has been relied by the EO as a gospel truth. The opinion of the handwriting expert has to be based with the reasons given by him and also there must be expert advise. The handwriting expert is not required to decide the matter conclusively and the matter cannot be decided conclusively merely on the report of the handwriting expert without procuring his attendance and he should have been put to the applicants for cross examination. Whereas in the present case, the report of the handwriting expert has been accepted as a gospel truth and the EO has not tested the authenticity of the report of the GEQD and he proceeded to accept the report of GEQD with the presumption that he cannot lie or cannot commit mistake, in our opinion, this was most unjustified on the part of the EO. The opinion of the handwriting expert is required to be tested in cross examination. But at no point of time, the EO had considered it essential to procure the attendance of the handwriting expert. Even an application was moved on behalf of the applicant to summon the GEQD in order to prove his report but his request was turned down and it was not considered by the EO essential that the original report must come on record, only a certified copy of report of GEQD has been relied and nothing has been heard by the EO regarding the genuineness and authenticity of the report of GEQD. There are numerous Judgments on the point that the report of an expert may be in favour of the side which calls them and hence the evidence of the expert should be approached with considerable caution especially where much depends on the evidence, and the report of the handwriting expert is not binding on the EO. In the present case, as per the opinion of the EO, the report of the handwriting expert was a material piece of evidence and reliance was to be placed solitary on this report hence the extra precaution should have been taken by the EO on placing reliance on this report and the handwriting expert should have been called in the evidence on behalf of the prosecution and not on behalf of the defence. Moreover, EO turned down the request of the applicants to examine the handwriting expert in defence. The Honble Apex Court in AIR 1963 SC (1728) Ishwari Prasad Misra vs. Mohammad Isa held that evidence given by experts of handwriting can never be conclusive, because it is, after all, opinion evidence. Hence, as it is an opinion so it is not sufficient or it is not justified on behalf of the Enquiry Officer to place reliance on the report of the handwriting expert. The Judgment of the Honble Apex Court reported in AIR 1967 Supreme Court 1326 Fakhruddin vs. The State of Madhya Pradesh is also relevant regarding the expert opinion, and in view of the Judgment of the Apex Court, the statement of handwriting expert is also an opinion and the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness. There are also various Judgments of the Honble Apex Court regarding the admissibility of the experts opinion.
12. As we have stated above and even from the report of the EO, it is evident that the reliance was placed by the EO on the report of the GEQD even without examining him in the cross examination or even without perusal of the original report, and in view of the settled position of law, as has been settled by the Apex Court and the other courts, this was most unjustified on the part of the EO, and as the respondents acted solely on the report of the EO based on the report of the GEQD obtained by the SSC without conducting an enquiry, is most unjustified on the part of the respondents. A liberty was given to the respondents to conduct a fresh enquiry, then the enquiry should have been conducted in accordance with law and the evidence should have been produced before the EO regarding the evidence in order to prove the imposter and it was not justified to place reliance solely on the basis of the report of the GEQD without checking that an imposter appeared in the examination in place of the applicants, and this conclusion of the EO was most unjustified that the GEQD is not required to be produced for evidence and its report has to be accepted as it is, as the same is a Govt. body. Being a Government expert, he has no special status to attach the authenticity. A Government expert or a private expert stand on the same footing and report of both must be relied with caution, and he must prove the report. Moreover, on the examination form, thumb impression is also put up as well as on the attendance sheet of the examinee. There can be variation in the signature but there can be no variation in the thumb impression, and the thumb impression should have been sent for a comparison to the handwriting and finger print expert and it could have been the best evidence.
13. It has been argued by learned counsel for the applicants that the applicants were moved before the EO in order to supply certain material documents to the applicants but the documents were not supplied on the ground that the documents are not relevant in order to decide the matter in controversy and that substantial injustice, irregularity and lapses have been committed by the EO in conducting the enquiry. It will be material to state that which were the documents required by the applicants during the enquiry. Following documents were required by the applicants as per application dated 07.05.2008, which are as follows: -
1. Hand book of procedure of Staff Selection Commission for conduct of the exams;
2. Roaster for examination centres particularly for the day of the examination under inquiry prepared by the Regional Office of SSC;
3. The detailed reports submitted by the authorized inspecting officers about the function of the centre particularly where the charged official was placed for the purpose of the written exam and typing test;
4. Attendance sheet bearing photograph which was collected by the Invg 1/C from the charged official during the course of the written exam wherein signature was also obtained;
5. Attendance sheet bearing photograph collected by the Invg I/C from the charged official during the course of the written exam wherein signature was also obtained;
6. Attendance sheet wherein signatures of the charged official were obtained by the Invg I/C during the written exam as well as during typing test after due satisfaction of personation by comparing the photograph with the person appearing therein;
7. Certificates/reports furnished by the Invigilator I/C in the written exam and type test;
8. Certificates/reports furnished by the Centre Supervisor of the charged official in r/o written exam as well type test;
9. Sitting diagram of the exam centre where the charged official appeared in the exam;
10. The photo bearing attendance sheet of at least 10 candidates of the exam preceding an succeeding the charged official;
11. The report/statement showing use of unfair means in the exam by the charged official;
12. Any complaint/statement/report regarding non-appearance of the charged official in the exam;
13. Any document showing contravention of the declaration furnished by the charged official in the application form for the exam;
14. Any document showing fraud and criminal means adopted by the charged official to secure employment;
15. Any document reflecting impersonation by the charged official. Perusal of the documents which have been cited by the applicants during the enquiry were relevant. It cannot be said out rightly that these documents were irrelevant and hence the copies were not supplied to the applicant of that documents. How the respondents or the SSC was of the opinion that the impostor appeared in the examination and hence the SSC or the respondents proceeded to conduct an enquiry on that allegation. In the application it has been prayed that copy of the complaint made against the applicant be supplied. It has been stated by the EO that there was direct allegation in the charge memo and hence these documents were not relevant. How the matter was re agitated after closing of the chapter. Somebody might have been made complaint that on behalf of the applicants some impostor appeared in the examination and the matter was reopened after submission of the selected candidates and after issue of appointment letter. There were numerous other documents which were considered essential on behalf of the applicants to be produced during the enquiry but copies of those documents were not supplied. We are of the opinion that it cannot be said that the documents demanded by the applicants are wholly irrelevant. Under these circumstances, inference can be drawn that as copy of certain documents were not supplied to the applicants hence the applicants were prejudiced by manner of the enquiry.
14. It has been argued by learned counsel for the respondents that the handwriting expert is a Government servant, and it is not expected from him that he will submit a false report and hence the EO had acted it illegally in placing reliance on the report of the GEQD and that the report has again been discarded mainly on the ground that he had not appeared in the witness box for cross examination by the applicants. The reason has been given by the EO for not furnishing the copy of the document, prayed for. That the documents were not relevant in the enquiry. The reasons were given by the EO that these documents are not essential for arriving at a conclusion and that correct position was adopted by the EO. It will not be appropriate to discard the report of the GEQD. Learned counsel also argued that the Honble Apex Court laid down the limits in order to review the matter regarding disciplinary enquiry, and that the Court or the Tribunal cannot re-appreciate the evidence and the Tribunal or the Court may draw its inference regarding the truthfulness of the story. But it has been held in the Judgment by the Honble Apex Court that the Tribunal can consider that whether the enquiry was conducted by the EO in proper manner. We have not re-appreciated the evidence relied by the EO but we can certainly see and peruse that whether the EO adopted proper procedure as laid down by the Honble Apex Court, and the Honble High Court. The EO placed reliance on the report of the GEQD with the presumption that it is a proved fact and it is a gospel truth and no further evidence is required regarding proof or disproof of the report. Whereas there are several Judgments of the Honble Apex Court that the report of the handwriting expert is not to be relied as a gospel truth. Firstly, the handwriting expert is required to be produced and secondly the report is not to be relied as a gospel truth. The Court or EO can draw its own inference about the authenticity of the report or about the document. Firstly the original report was not produced during the enquiry, only the certified copy of the report was produced and it was relied as an authentic document and this approach of the EO was unjustified. Moreover, the EO has not considered it essential to examine the Government handwriting expert to prove the report whereas without examination of the handwriting expert, no reliance can be placed on such a report and it can be said as a waste paper. Following Judgments have been relied upon by learned counsel for the respondents in support of his argument: -
1. (1995) 1 SCC 216 Government of T.N. and another vs. A. Rajapandian;
2. (1996) 7 SCC 509 State of T.N. and another Vs. S. Subramaniam;
3. (1997) 4 SCC 565 Tara Chand Vyas vs. Chairman & Disciplinary Authority and others;
4. 1997 (2) E.S.C. 1022 (S.C.) Government of T.N. and others vs. S. Vel Raj;
5. (1998) 2 SCC 394 Commissioner and Secretary to the Govt. and others vs. C. Shanmugam;
6. (1999) 3 SCC 372 U.P. State Road Tpt. Corpn. And others vs. Musai Ram and others;
7. (2006) 3 SCC 150 Syndicate Bank and others Vs. Venkatesh Gururao Kurati;
8. (2007) 1 SCC 445 Pandit D. Aher vs. State of Maharashtra;
9. AIR 2008 SC 1162 Employers in relation to the Management of West Bokaro Colliery of M/s TISCO Ltd. Vs. The Concerned Workman, Ram Parvesh Singh;
10. (2009) 8 SCC 310 State of Uttar Pradesh and another Vs. Man Mohan Nath Sinha and another.
We have considered the above Judgments of the Honble Apex Court but in the peculiar facts and circumstances of the present case, no benefit can be given to the respondents on the basis of the aforesaid Judgments. The enquiry conducted by the EO is perverse. Reliance was placed on the exparte report of the handwriting expert without examining him and without producing him for cross examination. Copies were not supplied of certain relevant documents to the applicants and no enquiry at all was conducted regarding the factum of impersonation except the enquiry conducted by the SSC. The Honble High Court, Allahabad has commented tersely on this conduct of the respondents.
15. It has been argued on behalf of the respondents that the SSC was the necessary party to the O.A. and it has not been arrayed as a party hence the matter cannot be agitated conclusively without impleading the SSC. But learned counsel for the applicants disputed this contention of the Respondents Advocate and stated that the Honble High Court held that after issuing of the appointment letter, SSC has no role to play and nothing is expected from the SSC. The enquiry is to be conducted by the department in which the applicants were appointed and earlier the enquiry was conducted by the SSC regarding the imposter based solely on the report of the GEQD. And the finding was set aside but liberty was given to the respondents to conduct a fresh enquiry. Under these circumstances, the fresh enquiry ought to have been conducted in a proper manner and the enquiry conducted by the SSC was not at all relevant in order to place reliance. The matter which came in the notice of the SSC should have been relied after producing the essential document on that matter. The enquiry ought to have been conducted afresh by the respondents but the point that whether any imposter appeared on behalf of the applicants and much reliance has been placed on the report of GEQD. And in view of the Judgment of the Honble High Court, Allahabad the enquiry conducted by the SSC was set aside. It has been argued by learned counsel for the applicants that SSC is a necessary party to be arrayed in the O.A. because the candidatures of the applicants were rejected by the SSC after conducting the proper enquiry. That the report of Government handwriting expert was called by the SSC and in order to reply the argument of learned counsel for the applicants, the SSC should have been impleaded. But it has been held by the Honble High Court that after conducting the examination there is no role of the SSC in the matter when the appointment letter was issued then it is the department concerned who has expected to conduct the enquiry and not the SSC. That when an appointment letter is issued to the candidates after completing all the formalities of finalization of the result, then there is no relationship of master and servant in between the SSC and the candidate, and then the department is concerned for all the purposes. In view of this finding of the Honble High Court, it was not justified for the applicant to array the SSC as a party in the O.A. and hence we disagree with the arguments of learned counsel for the respondents that the O.A. is bad for non-joinder of necessary party of the SSC. We are of the opinion that the SSC is a necessary party to the O.A.
16. It will be just and proper to cite the Judgment of the Honble High Court regarding not affording the opportunity on the point of the report of the GEQD, and in the matter whether any proper enquiry was conducted by the SSC so as it can be said that the EO was justified on placing reliance on the report of the GEQD. A finding has also been recorded by the Honble High Court that even the appointing authority has not afforded any opportunity to the respondent no. 1 before passing the order terminating the services of respondent no. 1. Counsel for the petitioner is not able to show any provision of law that he has any jurisdiction to cancel the candidature of respondent no. 1 after appointment. Under these circumstances, it is evident that the show cause notice was not served by the SSC. It will also be material to reproduce the relevant portion of the Judgment of the Honble High Court commented regarding the working of the SSC and the respondents: -
The present petitioner is Staff Selection Commission and that too, made the Union of India, the petitioner as well as the respondent, which is something, unthinkable and unheard of. The officers who are burdening this Court with this kind of petitions whether deserve to continue in service or not, is a matter for serious consideration. However, these are the matters to be examined by the so-called authorities who have no sense of responsibility either towards the society or towards the Court. The above observation of the Honble High Court is sufficient to show the state of affairs of the SSC as well as of the other respondents and at present also there is no change in the working of respondent. As per direction of the Tribunal, a fresh enquiry was conducted; a fresh show cause notice was served and a fresh enquiry report was prepared but the same mistakes were committed by the EO at this time also, which were committed in the earlier enquiry. The EO was not aware with this basic question that reliance cannot be placed on the report of the GEQD without producing him for cross examination. Even the EO has gone to the extent that the report of the GEQD cannot be discarded as it has been prepared by the Government body. The EO was under the wrong impression that it is a gospel truth and it cannot be disbelieved and no further evidence is required for proof of the report.
17. For the reasons mentioned above, we are of the opinion that the enquiry is vitiated due to various irregularities and lapses committed by the EO during the enquiry. The EO committed gross irregularity and illegality in placing reliance on the report of the Government handwriting expert even without examining him or without producing the original report during the enquiry and the EO was most unjustified in accepting the report for GEQD as a gospel truth. Moreover, the EO has committed gross illegality and irregularity in refusing to supply the copy of the relevant documents, required by the applicants, as has been stated above. Moreover, even at the instance of the applicants material witnesses were not summoned by the EO like Invigilator, Centre Supervisor etc. Under these circumstances, serious prejudices have been caused to the applicants and it can only be said that the EO has acted without any sense of responsibility, and the enquiry was conducted in an arbitrary manner without following the principle of natural justice. The result is that the Original Applications deserve to be allowed, and the impugned orders are liable to be quashed.
18. Original Applications, mentioned above, are allowed. The Order dated 08.10.2008 and 14.04.2009 passed by respondents No. 3 and 2 respectively are quashed. The respondents are directed to reinstate the applicants in the department and to extend them all the consequential benefits including monetary and promotional at par to their juniors. The applicants are also entitled to the entire salary for the period of their removal from service up to the date of reinstatement unless not worked anywhere. The compliance of the Order shall be made by the respondents within a period of one month from the date when a copy of this Order is produced before the respondents. Learned counsel for the respondents shall inform the respondents about this order and applicants shall also produce a copy of this order to the respondents forthwith.
19. Registry is directed to place a copy of this Order in all the connected Original Applications.
{Manjulika Gautam} (Justice S.C. Sharma)
Member A Member J
/M.M/
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