Central Administrative Tribunal - Ahmedabad
Jaykumar Manojbhai Barot vs Posts on 4 August, 2023
::1 :: OA No 470/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BECH
Original Application No. 470/2021
Dated the 4th day of August, 2023
Reserved on: 31.03.2023
Pronounced on: 04.08.2023
CORAM:
Hon'ble Shri Justice Rameshwar Vyas, Member (J)
Hon'ble Dr. A. K. Dubey, Member (A)
1. Jaykumar Manojbhai Barot
Age: 28 years (DoB being 06.07.1993)
Son of Shri Manojbhai Kantibhai Barot
(Till 23.12.2015 was serving as Postal Assistant in
Bharuch Division under Supdt. of Post Offices, Bharuch)
& presently residing at No.29, Vinayaknagar Society
Fullbhai Mata Road, Kapadvanj 387 620,Dist Kheda, Gujarat.
... Applicant
(By Advocate Mr. M S Rao)
V/s.
1. Union of India
(To be represented through its Secretary to the
Government of India
Department of Posts/Recruitment Division,
Ministry of Communication & Information Technology,
Government of India,
Dak Bhavan, Sansad Marg, New Delhi 110 001.
2. The Chief Postmaster General
Gujarat Postal Circle, O/o C.P.M.G., Department of Posts
Ministry of Communication & Information Technology
Govt. of India, Khanpur, Ahmedabad 380 001.
3. The Superintendent of Post Offices,
Bharuch Division
O/o. S.P.O., Bharuch, Bharuch 392 001.
4. Central Forensic Science Laboratories
(Notice to be served through its Director,
Near Hyderabad Public School
Ramanthapur Colony Road, Ramanthapur
Hyderabd 500 013, Telangana State.
... Respondents
(By Advocate Ms. Roopal R Patel R - 1 to
::2 :: OA No 470/2021
ORDER
Per:Hon'ble Shri Justice Rameshwar Vyas, Member(J)
1. The applicant is aggrieved with the order dated 19.10.2020 (Annexure A) whereby he has been denied reinstatement in service by the respondent in compliance of the order passed by the Hon'ble Apex Court in Civil Appeal No. 10513/2016 and connected appeals.
2. The brief facts of the case are as under: -
2.1 Ministry of Communication & Information Technology, Department of Post vide notification dated 21.02.2014(Annexure A/2) invited application from eligible persons for filling up the vacancies of Postal Assistant /Sorting Assistant etc. for the year 2013-14 in 22 postal circles in the country. The applicant had also applied for Postal Assistant/Sorting Assistant from Gujarat Postal Circle. Aptitude test and computer/typing test were held centrally by the Postal Directorate.
M/s. CMC Limited was engaged to handle the entire process of conducting the examination from the stage of printing the application till preparation of the merit list. The applicant duly appeared in the examination for the aptitude test paper -1 from Ahmedabad. Upon being declared as qualified in the aforesaid aptitude test, he took part in computer/typing test in paper -2. The result of the examination was declared and uploaded on official website of respondent no.2 on 01.06.2014 (Annexure A/3). Postal units for pre-appointment formalities were allotted. The applicant was allotted Bharuch Postal Division vide communication dated 10.12.2014 (Annexure A/4). After verification of the documents and medical examination, the applicant was accorded appointment in Postal Assistant (PA) cadre and was attached to DO Bharuch for two days field training vide communication dated 18.02.2015 (Annexure A/5). Thereafter he was directed to undergo induction training from 06.04.2015 to 30.05.2015 at Vadodara vide communication dated 31.03.2015. Meanwhile, noticing some irregularities in recruitment process in some postal circles the respondents kept the process of recruitment in abeyance till ::3 :: OA No 470/2021 further orders. Thereafter, vide order dated 09.09.2015 respondent revoked the order of abeyance in ten postal circles and issued some directions to be followed before allowing the candidates to join or report for training (Annexure A/9).
2.2 Thereafter, on 21.12.2015, the respondent no.2 being head of Gujarat Postal Circle ordered cancellation of examination with immediate effect and the service of the applicant was terminated vide order dated 23.12.2015 (Annexure A/10). Being aggrieved with this termination order he preferred OA No. 155/2016 and the same was disposed of in terms of order dated 18.03.2016 passed in OA No. 478/2015 involving the same issue. The Union of India challenged the order of this Tribunal before Hon'ble High Court of Gujarat by filing Special Civil Application along with various other Miscellaneous Application which was allowed and the action of the department in cancelling the entire result of the PA/SA direct recruitment examination and consequent termination of the appointment of the candidates were confirmed. Being aggrieved with the outcome in the appeal the applicant and other similarly situated candidates went in appeal before the Hon'ble Apex Court against the order of Hon'ble High Court of Gujarat. The Hon'ble Apex Court after perusing the report of the vigilance committee set up by the department, was of the view that the entire examination was not necessarily vitiated but some persons who weresuspected of having used malpractices in the examination of PA/SA in five circles viz Uttarakhand, Rajasthan, Chattisgarh, Haryana & Gujarat had actually been identified. The Hon'ble Apex Court directed that the identified person may be personally called and explained the allegations against them and given some reasonable time of about a week or ten days to give their reply to the allegations and then a final decision may be taken. It was further observed by the Hon'ble Apex Court that those candidates who are not suspected of having committed any malpractices and who have undergone the prescribed courses may be reinstated with all consequential benefits and 50% back wages with liberty to respondents to take action against them in case subsequently it is found in the investigation that they have ::4 :: OA No 470/2021 indulged in some malpractices. In compliance of the verdict of Hon'ble Supreme Court in Civil Appeal No. 10513/2016 delivered on 13.07.2017 it was decided to reinstate the present applicant on the post of Postal Assistant/Sorting Assistant. The reinstatement order was made subject to the condition that the department was at liberty to take action against him in case subsequently it was found in the investigation that he had indulged in any malpractice. Thereafter, the applicant made himself present on 24.11.2017 before the department. On that day his hundred specimen signatures were taken. The applicant made representation assuring the respondent that he was personally present to write all the examinations and signatures contained in the documents were his signatures. But the applicant was not permitted to resume his duties. Ever since then as and when the applicant used to personally visit the office of respondent no.3 to know about the fate of the reference of applicant's case to CFSL, the only reply from the office was that the response from the CFSL was awaited. Having sufficiently waited for more than ten months, the applicant submitted a representation dated 26.09.2018 (Annexure A/15) to respondent no.2. But again there was no response from the respondent no.2 or respondent no.3. The applicant got some information under RTI Act where upon he came to know that applicant was not being reinstated into the services of postal department based on the report of hand writing expert of CFSL, Hyderabad. Thereafter, the applicant could not approach this Tribunal due to ongoing COVID-19 pandemic. In the month of December, 2021, the applicant came to know that one similarly situated postal employee viz., Shri Atul R Yadav who had approached this Tribunal with OA No. 223/2019 came to be reinstated by the postal department as Sorting Assistant on 01.12.2021 in pursuance of Hon'ble Tribunal's final order dated 21.10.2021 whereby the aforesaid OA was allowed. The applicant approached respondent no.3 bringing to his notice the aforesaid decision and sought his reinstatement on the lines of the above case. However, respondent no.3 had the audacity to take an oral stand that applicant may be reinstated as Postal Assistant only when he brings such an order from ::5 :: OA No 470/2021 Tribunal. Therefore, the applicant approached this Tribunal with prayer to condone the delay in filing this OA. By way of amendment he also challenged the communication dated 18.01.2019 issued by Superintendent of Post Offices, Bharuch Division whereby he was informed that as per opinion report dated 07.08.2017 of CFSL, Hyderabad his signature was mismatch and therefore department was not able to reinstate him in service.
3. In reply filed by respondent no. 1 to 3, appointment of the applicant on the post of PA Bharuch was admitted. It is averred that finding irregularities/ malpractices in examinations in five circles the same were cancelled consequent upon which terminated the services of candidates who have already joined the department. As per CFSL report specimen signatures mismatched with signature marked Q1 i.e., OMR Sheet. The applicant was informed the reason for not reinstating him in service vide communication dated 18.11.2019. Justifying the action of the respondents for not reinstating the applicant, the respondents prayed to reject the OA.
4. Applicant has also filed rejoinder reiterating the contentions made in the OA.
5. Heard learned counsel for the parties and perused the material available on record.
6. Learned counsel for the applicant submitted that the case of the applicant is squarely covered by the judgment passed by this Tribunal in the matter of Atul R Yadav Vs UoI & Ors in OA No. 223/2019 on 21.10.2021 wherein this Bench held termination order and denial of reinstatement of the applicant as punitive in nature. The order of cancellation of examination was found against the principles of natural justice as also against the law laid down by Hon'ble Apex Court in the matter of Magan Biharilal Vs State of Punjab reported in AIR 1977 SC 1091 wherein it was held that conviction cannot be based on the opinion of handwriting expert without any substantial corroboration. While setting aside the impugned order, this Bench remitted back the matter to reconsider the candidature of Atul Yadav, if no other adverse report was found against him. In the light of the above direction Atul R ::6 :: OA No 470/2021 Yadav was accorded reinstatement, argued by learned counsel. It is further submitted by learned counsel for the applicant that relying upon the order passed in Atul R yadav case, same order was passed in the matter of Sonu Vs UoI in OA No. 435/2021 decided 08.04.2022. It was submitted that relying upon the order passed by this Bench,Hon'ble Principal Bench of this Tribunal in matter of Sumit Surajmal Vs UoI in OA No. 2440/2021 decided on 30.05.2022, passed the same order. The order passed by Principal Bench in the above matter was challenged before the Hon'ble High Court of Delhi. However, that was rejected on 09.11.2022 in Writ Petition (C) No. 15341/2022. Thereafter, Hon'ble Apex Court dismissed the SLP no 32280/2023 filed against the order passed in the matter of Sumit Surajmal on 03.03.2022. The above order has been confirmed till Hon'ble Apex Court.
6.1 It is further argued by the learned counsel for the applicant that after issuing the order of reinstatement on 13.11.2017, it was decided to reinstate the applicant in the post of Postal Assistant. However, instead of reinstating him, he was required to give specimen signatures which were sent to CFSL, Hyderabad and based on CFSL report the applicant was denied reinstatement on the post of Postal Assistant. Counsel for the applicant argued that the decision not to give reinstatement to the applicant on the basis of report of handwriting expert of CFSL, Hyderabad is not in consonance with the dictum laid down by Hon'ble Apex Court in the matter of Magan Bihari Lal Vs State of Punjab. The report of the handwriting expert is not a substantive piece of evidence and the same cannot be relied upon without any corroboration. It is argued that respondents committed grave error in issuing the impugned order dated 18.01.2019 which reads as under: -
"As per opinion report dated 07.08.2018 of CFSL, Hyderabad your signature is found mismatched.
As such, department is not able to reinstate your service."::7 :: OA No 470/2021
In view of the above, learned counsel for the applicant prayed to quash and set aside the impugned order 18.01.2019 (Annexure A)and decision of the respondents for not reinstating the applicant.
7. On the contrary, learned counsel for the respondents submitted that since it is a case of impersonation, the applicant was not entitled for reinstatement on the post of Postal Assistant. The respondent was within his power in taking the specimen signatures from the applicant so as to ensure that applicant himself appeared in the examination. Since mismatch was found in the signature in OMR sheet from the specimen signature of the applicant, his request for reinstatement was declined. However, learned counsel for the respondent is not in a position to controvert the law laid down in the matter of Atul Yadav, Sonu and in the case of Sumit Surajmal (supra).
8. Having regard to the submissions made by learned counsel for the parties and material available on record, it emerges that the claim of the applicant for reinstatement was considered by the respondent department in compliance of the verdict of Hon'ble Apex Court in Civil Appeal No. 10513/2016 delivered on 13.07.2017 and it was decided to reinstate the applicant on the post of Postal Assistant/Sorting Assistant. However, instead of giving reinstatement to him, he was required to give 100 specimen signatures and thereafter, relying upon the report of the handwriting expert he was denied reinstatement.
9. Hon'ble Apex Court in Civil Appeal No. 10513/2016 and other connected matters while setting aside the cancellation of entire examination directed the respondents to proceed against the suspected candidates after providing them hearing opportunity. Hon'ble Apex Court made following direction with regard to persons who were not suspected of having committed any malpractices.
"Those persons who are not suspected of having committed any malpractices and who have undergone the prescribed courses may be reinstated with consequential benefit and 50% wages with liberty to ::8 :: OA No 470/2021 the respondents to take against them in case subsequently it is found in the investigation that they have indulged in some malpractices".
In the present matter though decision was taken by the department to reinstate the applicant, the same was not executed on account of mismatch of his signature vide opinion of the handwriting expert of CFSL, Hyderabad. It is an admitted case that applicant was not suspected of having used malpractices in examination. He was denied reinstatement only on account of CFSL, Hyderabad's adverse report. There is no material on record except this CFSL report to suggest that the applicant was suspected of having committed any malpractice in the examination. His services were terminated on account of cancellation of the examination. Hon'ble Apex Court revoked the order of cancellation of examination with direction to respondents to reinstate the candidates with consequential benefits with liberty to take action against them in case subsequently it is found in the investigation that they have indulged in some malpractice. In the case of the applicant, the matter was not investigated by any agency to the fact that the applicant indulged in any malpractice. Without any further investigation, the action of the respondents to deny reinstatement of applicant based on the report of the handwriting expert of CFSL, Hyderabad is not only against the settled legal position but is also not in consonance of the direction given by Hon'ble Apex Court. As the report of the handwriting expert is not a substantial piece of evidence, it can be used only to support substantial evidence against any person. In the matter of Atul R Yadav while relying upon the dictum laid down by Hon'ble Apex Court in the matter of Magan Bihari Lal case, it was held that in the absence of any material contrary to what is noted herein above (opinion of handwriting expert) the decision making process and the conclusion arrived at by the respondent, in our considered view is vitiated and suffers from legal infirmity. This bench with above observation and in the light of case laws quoted above quashed and set aside the impugned order.
::9 :: OA No 470/202110. In the matter of Sonu OA No. 435/2021 and Sumit Surajmal OA No. 2440/2021 (supra) Hon'ble Principal Bench of this Tribunal found the impugned order as stigmatic and finding it identical to the case of Atul R Yadav, allowed the OAs. Hon'ble Apex Court in the matter of Magan Bihari Lal Vs State of Punjab (supra) held that expert opinion must always be received with great cautions and perhaps none so with more caution than the opinion of the handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to place a conviction solely on expert's opinion without substantial corroboration. This Rule has universally been acted upon and it has almost become a rule of law as observed by Hon'ble Apex Court. Further, Hon'ble Apex Court in matter of Ramchandra Vs State [AIR 1997 SC 361] held that it is unsafe to treat handwriting expert's opinion as sufficient piece of evidence for conviction but it may be relied upon where supported by other items of internal and external evidence. Hon'ble Apex Court termed the evidence of opinion by expert very weak and infirm by nature and held that it solely cannot form the basis for conviction.
11. In our considered opinion, the respondent committed error in making decision based solely on the opinion of handwriting expert for not reinstating the applicant on the post of Postal Assistant. The opinion of the handwriting expert is merely an opinion and is rebuttable one. In the present case the applicant was not provided any opportunity to rebut the same. Nor any investigation was carried out. Without providing any opportunity of hearing, the impugned order was passed by the respondents which is not only stigmatic but is also punitive in nature. Hon'ble Apex Court in its Civil Appeal No. 10513/2016 along with other connected matters, even in the matters of persons who were suspected of having used malpractices in the examination, directed the respondents to deal with them according to principles of natural justice. As per the order of the Hon'ble Apex Court, respondents were required to call them personally and explained the allegations against them and give some reasonable time of about a week or 10 days to give their reply to the allegations and then a final decision may be ::10 :: OA No 470/2021 taken. In the case of the applicant though he was not found suspected for indulging in any malpractices, he was not called upon to explain his point against the decision not to reinstate him based on the report of the CFSL, Hyderabad. The procedure adopted by the respondents in denying the claim of the applicant is not only against the directions made by the Hon'ble Apex Court but also against the principles of natural justice. The claim of the applicant is also covered by the judgment passed by this Bench in the case of Atul R Yadav (supra).
12. As per the CFSL report signature of the applicant on OMR sheet (question no.1) as also signatures on data entry evaluation sheet (question no.2) and typing test (question no.3) were sent for comparison with 100 specimen signatures taken by the respondent i.e., Superintendent of Bharuch. However, as per the report of the handwriting expert it is adverse only regarding question no.1 i.e., signature on OMR sheet. Therefore, opinion of the handwriting expert does not suggest that data entry evaluation sheet and typing test evaluation sheet were not signed by the applicant. It is also important to note that no admitted signature of the applicant made in corresponding year of examination was sent for comparison to the questioned centre. The examinations were conducted in the year 2014. However, specimen signatures were taken after a gap of 3 years i.e., in the year 2017. With the passage of time variation in signature is natural and therefore, only on account of mismatch of signature, it cannot be held that this it is a case of malpractice. It is also important to note that the applicant has been denied reinstatement without assigning any reason except the mismatch of the signature which has already been opined against that it could not be made a ground for not reinstating the applicant in service in compliance of the order of Hon' ble apex court.
13. In view of the above, the prayer of the applicant deserves to be allowed. Resultantly while allowing this OA, we quash and set aside the impugned order dated 18.01.2019 (Annexure-A). Respondents are directed to reinstate the applicant on the post of Postal Assistant within ::11 :: OA No 470/2021 a period 30 days after verification of the documents from the date of receipt of copy this order. It is made clear that respondents are at liberty to take action against the applicant in case, it subsequently found in the investigation that he has indulged in any malpractice in terms of the order passed by Hon'ble Apex Court in Civil Appeal No. 10513/2016. Seniority of the applicant shall be decided as per rules counted along with the seniority of the other similarly situated candidates who have been given reinstatement.
(A K Dubey) (Rameshwar Vyas) Member(A) Member(J) PA