Central Administrative Tribunal - Allahabad
Ashwani Kumar Dube vs M/O Defence on 27 September, 2023
(Reserved)
Central Administrative Tribunal, Allahabad
Bench Allahabad
****
Original Application No.130/2019
This the 27th Day of September, 2023.
Hon'ble Mr. Justice B.K. Shrivastava, Member (J)
Hon'ble Dr. Sanjiv Kumar, Member (A)
Ashwani Kumar Dubey aged about 25 years, Son of Shri N.P. Dubey,
Resident of Village-Puramufti Opposite Krishna Mandir, Post-Puramufti,
District Allahabad Ex-FED A No.46064-G Fire Station-24, ED Air Force
Station Manauri, Allahabad.
...........Applicant
By Advocate: Shri A.K. Srivastava
Versus
1. Union of India through the Secretary, Ministry of Defence,
Government of India, New Delhi.
2. Chief of AIR Staff (CAS) Air Headquarters Vayu Bhawan New
Delhi-110106.
3. Deputy Director, PC (DPC), For AOP AirHeadquarters Vayu Bhawan
New Delhi 110106.
4. Air Officer Commanding in-Chief, HQ, MC, IAF, Vayu Sena Nagar,
Nagpur 440007.
5. Air Officer Commanding, 24 Equipment Depot Air Force Station
Manauri, District Allahabad (U.P.) 212212.
...Respondents
By Advocate: Shri Arvind Singh
ORDER
Order delivered by Hon'ble Mr. Justice B.K. Shrivastava, Member (J) This O.A. has been filed under section 19 of the Administrative Tribunals Act, 1985 on 11.2.2019 against the Termination Order dated 01.03.2018 (Annexure A-1) and the Appellate Order dated 15.01.2019 (Annexure A-2).
2. As per the O.A., in the year 2016, the notification was issued for direct recruitment of Group-C, Civilian post in the Indian Air Force at Page No.2 the maintenance command unit, inviting the application. The applicant applied for the post of Fire Engine Driver, he appeared in the examination and after selection the appointment letter (Annexure A-3) was issued on 07.06.2017. The applicant submits the document along with the application at the time of applying for the post. Thereafter, a show cause notice was issued to the applicant on 14.12.2017 which was replied by the applicant on 29.12.2017, and thereafter his services were terminated by order dated 01.03.2018 upon the ground that the driving licence submitted by the applicant was a fake document. Therefore, the applicant filed this O.A. for the following relief stated in para 8 of the Court.
"(i) That, this Hon'ble Court may graciously be pleased to quash the termination order dated 1.3.2018 having letter No.24 ED/625/1/PC by Air Commodore/Air Officer Commanding 24 ED AF Station Manauri, Allahabad.
(ii) That, this Hon'ble Court may graciously be pleased to stay the effect and operation of the order dated 1.3.2018 having letter No.24/Ed/625/1/PC by Air Commodore/Air Officer Commanding 24 ED AF Station Manauri, Allahabad and appellate order dated 3.1.2019 passed by the respondents No.4 vide letter No.MC/5915/3/974/PC may kindly be quashed.
(iii) Any other order or direction which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.
(iv) Allow the present Original Application with costs. "
3. It is submitted by the applicant that the services of the applicant have been terminated upon the ground that the Licence Number UP/70/2012/00035012 was found fake, while the aforesaid fake license was not submitted by the applicant. Instead of aforesaid license the Licence Number UP/6420110001512 was submitted by the applicant. His services have been terminated without any sufficient cause. The applicant also filed the appeal against the termination order. On 01.03.2008, the appeal was dismissed. The order passed by respondent No. 4 is illegal and improper. There has been some tempering in the official document and the Appointing Authority, on one pretext or the other, was adamant about terminating the service of the applicant. The Page No.3 said license was not submitted by the applicant at the time of application, therefore, both orders are liable to be set aside.
4. The respondent opposed the claim of the applicant by filling the counter affidavit on 20.05.2019. It is submitted that the services of the applicant were "temporary". He submitted the fake licence. Upon an inquiry, it was found that the date of birth of the applicant was also disputed and three criminal cases were also registered against the applicant. As per OM dated 19.05.1993, the services of the temporary government may be terminated without any show cause notice. Speaking order has been passed in the appeal also. Therefore, the respondent pays to dismiss the aforesaid O.A. and also submit copies of the application form along with the document submitted by the applicant at the time of applying for the same post. Verification from RTO and the police officials was also submitted by the respondent.
5. During argument, the learned counsel for applicants drew attention towards Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi and others, AIR 1978 Supreme Court 851 decided on 02.12.1977. The counsel draws attention towards Head Note "A" of the aforesaid, which says:-
(A) Constitution of India, Art. 226-Order by Statutory Authority- Validity of - How to be judged.
When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may by the time it comes to court on account of a challenge, gets validated by additional grounds later brought out.
6. The counsel also drew attention toward J. Nici Sugantham vs. District Elementary Educational Officer, Judgment of Madras High Court passed on 30.04.2003 in Writ Petition No.12932 of 1996 with other writ petitions. From this judgment, the counsel draws attention towards Para-7, 8 and 9, which reads as under:-
Page No.47. However, the fact remains that some communications have been received from respondent No.4 raising some doubt regarding the genuineness of the certificate produced by the petitioners. Such communications cannot be simply wished away nor it can be utilised at the present stage as a conclusive piece of material to take away the services of the petitioners. It is not disputed by respondents 1,2 and 5 who have appeared through counsel that no further opportunity has been afforded to any of the petitioners to explain about such communications.
8. In the facts and circumstances of the case and in the interest of justice, it is directed that if the authorities intend to act upon such communication, they shall furnish a copy of the communication to the concerned teacher and thereafter they should give six months time from the date of service of such communication to the concerned teacher to obtain any clarification from the Karnataka Secondary Education Examination Board regarding genuineness of the certificate. If the concerned teacher fails to obtain such clarification from the Karnataka Secondary Education Examination Board, it would be open to the concerned authorities to take further action as deemed fit and proper in accordance with law by giving opportunity of hearing.
9. Prima facie such a direction may appear to be contrary to the directions given on the earlier occasion. But, I deem it just and proper to give such a direction because , the sanctity of educational institution has to be maintained and once there is any bonafide doubt regarding genuineness of a particular certificate, it is for the beneficiary of such suspected certificate to clear the air and clarify the doubts. Since the petitioners have got the certificate from the Karnataka Secondary Education Examination Board, it is their obligation to obtain any clarification wherever necessary. It goes without saying that until further action is taken in accordance with law and as per the directions now given, the petitioners should continue in the post.
7. The third judgment cited by the counsel is the Delhi High Court judgment dated 30.03.2001 passed in Shri Parimal Singh vs. Union of India and ors., 2001(91)FLR 317: 2001 IVAD Delhi 679. In this judgment, the services of the applicant were terminated after seven years from the Page No.5 date of appointment. In the aforesaid situation in para-3, the court observed as under:-
3. As will be evident from the extracted portion of the impugned dismissal Order dated 8.12.1997 the Petitioner had submitted a fake educational certificate with the intention of falsifying his date of birth. This has not been contradicted. The contention of learned counsel for the Petitioner before me was that the Petitioner was led to believe that his case would be considered sympathetically, and that he, therefore, unequivocally pleaded his guilt to the charge of filing a false educational certificate. It was also reiterated that the Petitioner had drawn the attention of the Respondents to Rule 11(h) of the Rules which permitted a relaxation in the upper age limit in the case of candidates belonging to the special categories of persons in accordance with Orders issued from time to time by the Central Government. The contention was that the Petitioner belonged to the OBC category. Being unaware of the scope for relaxation in the upper age limit he had filed the fake educational certificate so as to depict himself to be younger than his actual age, but otherwise he had duly cleared the Higher Secondary Examination. Learned counsel for the Petitioner, however, submitted that the true and correct educational certificate had been filed before the Respondents.
Along with correct educational certificate the Petitioner had also placed the Certificate of 'Other Backward Category' issued by the Tehsildar, Murena. It was contended that in view of Respondents holding out that the Petitioner's case would be considered sympathetically, the awarding of the punishment of dismissal was not only contrary to the impression given to the Petitioner but also far too excessive.
8. The main controversy involved in this petition is related to the Driving Licence. As per the applicant, he did not submit the driving Licence Number UP/70/2012/00035012, while as per the respondents, the copy of the aforesaid license was submitted by the applicant himself. According to the applicant, Licence Number UP-6420110001512 was submitted by the applicant.
9. The respondent submitted the copy of the application form and the documents submitted by the applicant. At Page-108 of the counter affidavit, the copy of the application form has been submitted. In the aforesaid application form, the photo of the applicant is also available Page No.6 and the signature of the applicant is found in the last portion of the application form. In the application form, the declaration is also signed by the applicant which reads as under:-
"I hereby certify that above particulars mentioned in the application are correct and true to the best of my knowledge and we, if particulars mentioned by me are found false at any stage then I shall be liable to be terminated without any notice."
Therefore, it was the condition and undertaking of the job that if the documents or particulars are found incorrect then the services will be terminated without any notice.
10. The copy of the notification published in the newspaper, employment news dated 8th to 16th October, 2016 was also submitted by both parties. At Page-23 of the O.A. the notification has been attached and at Page-71 of the counter affidavit, the same notification is also annexed as annexure CA-1. For the post of Fire Engine Driver, the qualification prescribed was "must have at least three years experience of driving a Heavy Vehicle and be in possession of a valid driving licence." In Para-7(A) of the notification it was also mentioned-
"all documents in support of education qualification, age, technical qualification, physically handicapped, experience certificate and Caste Certificate issued by competent Civil Authorities in case of SC/ST/OBC candidate etc. to be accompanied with the application should be self-attested."
11. Therefore, it is clear from the advertisement itself that the requirement was to submit the certificates by the candidate and the certificates should be "self-attested" by the applicant himself. In the light of the aforesaid, if we see the document submitted by the respondent then it appears that along with the application the applicant submitted the marksheet of High School examination 2013 (Page 109 of CA), Residential Certificate (Page 110 of the CA) Driving Licence (Page-111 of CA). The signature of the applicant is available upon all three documents and the aforesaid signature is totally similar Page No.7 to the signature upon the Application Form as well as the signature upon each page of Original Application submitted before this Court. Hence, there is no any doubt about the signature. The signature putted upon the documents annexed with the application, is the signature of "self-attestation" which was required as per the advertisement. Hence, the contention of the applicant cannot be accepted that he did not file the copy of the license along with the application.
12. Along with the O.A. the applicant submitted different copy of license and argued that the license stated by the respondents was not submitted by him. As per the applicant, the license submitted by the applicant is at Page-29 of the O.A. The number of the aforesaid license is UP6420110001512. The aforesaid contention cannot be accepted because the copy which has been filed by respondent also having the signature of the applicant. The license which is submitted by applicant before this Tribunal as Annexure A-4 at Page 29, shows the date of birth of the applicant as 10.02.1993 while the applicant himself mentioned the date birth in the application form as 10.02.1995, and the same date is also mentioned in his High School certificate. This difference in the date of birth cannot be ignored and raised a presumption that the applicant submitted a forge license before the concerned authority and to rebut the action of the respondent, he again filed the suspicious license which shows a different date of birth.
13. The learned counsel for the applicant strongly opposed the action of the respondents and submitted that no opportunity was given to the applicant before passing the termination order. If we examine the case in the light of the aforesaid objection then it will be useful to mention the appointment order of the applicant dated 07.06.2017 at Page-26 of the O.A. It is mentioned in the aforesaid appointment letter that the appointment was on a "temporary basis" and the services will be liable to be terminated at any time during or at the end of the period of probation without any notice or pay in lieu. A note was also Page No.8 mentioned below the Para-9 of the appointment letter. Para-9 and 10 are important, which are as under:-
9. The appointment will be further subject to submission for original of Scheduled Caste/Scheduled Tribe/OBC Certificate wherever it is applicable.
Note- The appointment is provisional and is subject to the caste certificate being verified through the proper channel. If the verification reveals that the claim of the candidate to belong to SC/ST/OBC is false, your services will be terminated forthwith without assigning any further reasons and without prejudice to such further action as may be taken under the provision of the Indian Penal Code for production of False Certificate.
10. The appointment is provisional and is subject to verification of Educational Qualifications and other certificates by the concerned unit from the appropriate authorities."
Therefore, it appeared in the appointment letter itself that if upon verification any certificate is found false or fabricated, then services would be liable to be terminated without assigning any reason and the appointment was also provisional subject to the verifications of the certificates submitted by the applicant. Hence as per the appointment letter, there was no any requirement for giving the prior notice before passing the termination order.
14. As far as verification of license is concerned, the respondents submitted a letter dated 23.01.2018 issued by the respondent for verification of the concerned license from the RTO office. At Page-86 the extract of driving license is submitted. This document has been issued by the RTO on 09.01.2018. The License Number is mentioned and it is found that the aforesaid vehicle is registered in the name of Neha Madhvan, not in the name of the applicant. This document is a part of a public document. The records mentioned in the RTO office are public documents and the copy of the aforesaid document may be read and it cannot be doubted that the aforesaid document is not a valid document. Hence, it is proved that the copy of license which was Page No.9 submitted by the applicant at the time of filling the application was found forged upon the verification from the RTO office.
15. In this case, the termination order has been issued upon the basis of submission of a "forged driving license" but in addition to, it is also found from the report that the conduct of the applicant was also suspicious about his date of birth and there was a criminal record of the applicant. After appointment police verification was also conducted and the police gave the information about the criminal cases against the applicant.
16 One inquiry was conducted upon the complaint made by Karan and Atul Singh. The very serious facts are mentioned in the aforesaid inquiry. The respondents quoted Para- 4 and 5 of the aforesaid inquiry report in his counter affidavit. Para 4 and 5 of the aforementioned Inquiry Report are as under:-
4. The following position emerges from the ibid inquiry report.
(a) As per High School Certificate submitted by Shri Ashwani Kumar Dubey during the recruitment, his Date of Birth is 10 February 1995. However, the candidate is a son of civilian MTD Shri NP Dubey, posted at 24 ED, AF. The Date of Birth in r/o Shri Ashwani Kumar Dubey, as recorded in the service record of his father is 10 Sep 1982.
(b) In the year 1985, Shri NP Dubey had applied for change in Date of Birth of his son from 10 Jun 1981 to 10 Sep 1982 by producing a certificate issued by Gram Pradhan.
(c) Shri NP Dubey had availed special casual leave for 7 days from 31 Dec 1985 to 06 Jan 1986, as his wife had undergone family planning operation.
(d) Shri NP Dubey availed the benefit of LTC for his son (Shri Ashwani Kumar Dubey) in the year 1993, wherein he had mentioned DoB i/r/o his son as 10 Sep 1982.
(e) In some other official documents Shri NP Dubey has mentioned DOB i/r/o Shri Ashwani Kumar Dubey as 10 Sep 1982.Page No.10
(f) Shri Ashwani Kumar Dubey had studied at KV Manauri and he dropped out from Class IX in the year 1996. This fact has been confirmed by school authorities during inquiry.
g) The selected candidate has mentioned his marital status as ' unmarried ' during the selection process but during course of investigation, it was found that he is married and has a daughter, studying in Class II at KV, Manauri.
h) Shri Ashwani Kumar Dubey has submitted a police verification certificate with no criminal record against him.
However during verification process, it was found that there are three separate criminal cases pending against him at OP Sallahpur, PS Paramufti u/s 504, 506, 427 of IPC and u/s ¾ of UP Control of Goondas Act. These cases were registered in the year 2012/13.
i) During the course of inquiry, Shri Ashwani Kumar Dubey misbehaved and also threatened the P&S (U) officer and staff of dire consequences in office premises. If they continue with the investigation.
5. It appears from the above facts that Shri Ashwani Kumar Dubey, Fire Engine Driver, 24 ED, AF has suppressed his actual Date of Birth in order to secure employment of Fire Engine Driver at 24 Ed, AF. At the same time, he suppressed the information regarding criminal cases pending against at the time of selection. The Govt. Servant also misbehaved with the inquiry team in the office premises."
17. It is also appear from Page-6 dated 14.12.2017, which is a show cause notice issued to the applicant in relation to the date of birth and the criminal case pending against him and about the misbehaving to the SIBT by the applicant. The applicant submits the reply to the aforesaid notice. The copy of the aforesaid reply dated 29.12.2017 is annexed as Annexure A-7. It appears that no satisfactory reply was given by the applicant. Hence, prima facie, in view of this court it can be said that the allegation mentioned in the aforesaid show cause notice had some substance and the applicant was unable to explain any cause.
Page No.1118. In relation to the applicant, the police report was also submitted by O.P.- Sallahpur P.S. -Puramufti, District-Kaushambi. In the aforesaid report, it was mentioned that:-
" सेवा में , जिलाधिकारी महोदय जनपद कौशांबी महोदय, सविनय निवेदन है कि प्रार्थी अश्विनी कुमार दब ु े S/o नरें द्र प्रसाद दब ु े R/o अकबरपरु , सलाहपरु P.S. परु ामफ्ति ु , जनपद कौशांबी, के मल ू निवासी हैं। सकूनत तस्दीक है , थाना हाजा के अभिलेखो व माननीय न्यायालय कौशांबी के अभिलेखों का अवलोकन मझ ु उ0नि0 द्वारा किया गया तो प्रार्थी के विरुद्ध NCR 46/2 धारा 504, 506, 427 IPC व NCR No.47/12 धारा 504, 427 IPC व 31/13 धारा गड ंु ाएक्ट की कार्यवाही की गई है । जिसमें आरोप पत्रमाननीयन्यायालय पेश किया गया है । जो NCR No.46/12 तथा NCR No.47/12 धारा 504, 427 IPC में अभि0/प्रार्थी द्वारा जर्म ु कबल ू करने पर 500+500 रु0 का अर्थ दण्ड दिया जा चक ु ा है । व गण् ु डासहारनपरु एक्ट जो सदर इलाहाबाद में विचाराधीन है । वर्ष 2013 के बाद थाना हाजा पर आवेदक के विरुद्ध कोई अभियोग पंजीकृत नहीं है । संस्तति ु नहीं की जाती है ।
रिपोर्ट सादर सेवा में प्रेषित है ।"
Therefore, it appears from the aforesaid police report that the various crimes were registered against the applicant but he did not inform the department about the aforesaid crime. The serious facts concealed by the applicant himself regarding his criminal background.
19. As far as the date of birth is concerned, this fact cannot be doubted that his father Sri. N.P. Dubey was posted at 24-AD AF. In the service record of the father, he mentioned the date of birth of the applicant as 10.01.1981. Thereafter, the father applied for a change in the date of birth from 10.06.1981 to 10.09.1982. Therefore, the father mentioned the date of birth as 10.09.1982. The father also availed the Special Casual Leave for seven days w.e.f 31.12.1985 to 06.01.1986 for the purpose of "family planning operation" of the wife. It means the family planning operation of the mother of the applicant was done between the period of 31.12.1985 to 16.01.1986. In the aforesaid Page No.12 situation, the date of birth shown by the applicant becomes suspicious. As per the application form, he mentions the year of birth as 1993 and as per his High School certificate, the year is mentioned as 1995 while his father mentioned his date of birth as 10.09.1982 in his office record/ service book. The father also took the LTC for the applicant in the year 1993 and in the aforesaid application for LTC, he mentioned the date of birth as 10.09.1982. Therefore, the conduct of the applicant is suspicious. His marksheet of the High School examination was also a suspicious document.
20. The applicant did not file the order passed in appeal. The applicant has filed a copy of the appeal as Annexure A-9. As per O.A., he mentioned the order of appeal as Annexure A-2 but Annexure A-2, is the letter dated 15.01.2019 related to the clearance certificate, while the respondent filed the copy of the order passed in the appeal in which various important facts have been considered and mentioned in the aforesaid order. It will be useful to mention the aforesaid Appellate Order Annexure CA-11, as it is:-
"Tele: 0712-2512771/2211 Headquarters Maintenance Command Indian Air Force Vayu Sena Nagar Nagpur-440007 MC/5915/3/974/PC Shri Ashwani Kumar Dubey, Ex-Fire Engine Driver R/o Village Puramufti, Opposite Krishna Mandir, Post-Puramufti, District - Allahabad.
Disposal of Appeal Dated 12 March 2018 Submitted by Shri Ashhwini Kmar Dube, Ex-fed, PA No.46064-G, 24 Equipment Depot, Air Force.
1. WHEREAS, a total of 18 vacancies of Fire Fighting Staff i.e. 14 Firemant and 04 Fire Engine Drivers were released at 24 Equipment Depot, Air Force and advertised in Employment News dated 08-14 October, 2016. You had applied for the post Page No.13 of Fire Engine Driver and submitted driving license with number 7012035012.
2. AND WHEREAS, on having been selected, you were appointed as Fire Engine Driver with effect from 07 June 2017, with two years probation period vide appointment letter No.24 Ed/625/1/PC dated 07 June 2017.
3. AND WHEREAS, a complaint was received from Shri Karan Singh stating that you have submitted false/forged documents to secure employment at 24 Equipment Depot.
4. AND WHEREAS, you were served a show cause notice (SCN) vide 24 ED/650/FED/46064-G/PC dated 14 December 2017 and after receipt of your reply dated 29 December 2017, your services were terminated on 05 March 2013 vide 24 ED/625/1/PC dated 01 March 2018.
5. AND WHEREAS, being aggrieved with the said termination order, you had filed an OA443/2018, to quash the termination order issued by Air Officer Commanding, 24 Equipment Depot. Hon'ble Central Administrative Tribunal has disposed of the OA with direction to Respondent No.04 to decide the appeal dated 12 Mar 2018 preferred by you, within a period of two months from the date of receipt of certified copy of order.
6. AND WHEREAS, perusal of your appeal dated 12 March 2018, reveals the following contentions made by you:-
(a) Your neighbor named Shri Lalta Prasad Pandey made a complaint against you to Headquarters Central Air Command, and you were harassed by APM, 14 Provost & Security Unit.
Subsequently, a show cause notice was issued to you by Air Officer Commanding, 24 Equipment Depot, which you replied vide your reply dated 29 December 2017.
(b) That, subsequently considering your reply to show cause notice, you were served with termination letter 24 ED/625/1/PC dated 01 March 2018, by Air Officer Commanding, 24 Equipment Depot, in which grounds for termination were clearly brought out that on verification of your license from competent authority, your license number UP/70/2012/00035012 was found to be fake. However, in the instant appeal, you further brought out that the license submitted by you was having number UP 6420110001512 and not the aforesaid license number 7012035012, that was investigated.
Page No.14(c) That, the investigation report on whose basis, your services were terminated is mala fide with some tampering in the official documents as the Appointing Authority was adamant to terminate your services anyhow, whereas you had no concern with license Number UP/70/2012/00035012, referring in the termination order and you have not submitted the driving license referred to in the termination order.
(d) That, no notice or opportunity of hearing was given to you before issuing termination order dated 01 March 2018.
7. AND WHEREAS, on perusal of case, the following facts have emerged:-
(a) That, you were appointed as Fire Engine Driver on 07 Jun 2017 at 24 Equipment Depot and for the purpose, had submitted requisite driving license with license number 7012035012.
(b) That, pursuant to receipt of complaint from Shri Karan Singh, about your allegedly securing employment on the basis of false/forged documents at 24 Equipment Depot, an investigation was carried out by 14 Provost & Security Unit which confirmed that you in fact had submitted false/forged documents to secure the Government employment.
(c) That, while verifying your documents from the records of your father, who is a Civilian MTD at 24 Equipment Depot, it was also revealed that you had forged your date of birth, in that while applying for Government employment, you declared your date of birth as 10 February, 1995 instead of actual date of birth 10 September 1982, as available in your father's records.
(d) That, the police verification report at the time of appointment brought by you shows no criminal case pending against you. However, during investigation, it was found that there are three separate criminal cases pending against you at OP Sallahpur, PS Puramufti u/s 504 of IPC (insult with intent to provoke breach of peace), 506 of IPC (criminal intimidation), 427 of IPC (Punishment for offense related to damages more than Rs.50/-) and u/s 3 & 4 of UP Control of Goondas Act (Externment of Goondas from any area and permission oto return to that area as specified by District Magistrate). These cases were registered in the year 2012-13.
(e) That, the copy of driving license number 7012035012 submitted by you for the said recruitment does not bear the Page No.15 requisite endorsement to drive heavy vehicle and further as per age and date of issue of license it is revealed that you had obtained LMV license on 25 Jul 12 i.e. before attaining the age of 18 years which is contrary to Section 4 of the Motor Vehicles Act, 1989. Further, your contention that your driving license was bearing number UP 6420110001512 and not the aforesaid number 7012035012, is not legally tenable, as the held records of said recruitment clearly reveals that you had submitted license number 7012035012 only which now has a new number UP/70/2012/00035012 and belongs to some other person named Ms. Neha Madhwani.
8. AND WHEREAS, I being the Appellate Authority, having duly considered the contentions raised by you in your above said appeal vis-s-vis facts of the case and other material placed on record, have arrived at the following conclusion:-
(a) That, you were appointed as Fire Engine Driver on 07 Jun 2017 at 24 Equi9pment Depot and had submitted driving license with license bearing now new number UP/70/2012/00035012. Your appointment was provisional and subject to verification of Educational Qualifications, Antecedents and other certificates from appropriate authorities/agencies to prove your eligibility.
(b) That, upon investigation and verification, it was revealed that you had indeed submitted forged/false documents of date of birth and driving license to secure the Government employment thereby using unfair means.
(c) That, it is evident from the report of the investigation agency 14 Provost & Security Unit, that you obtained Government employment by bringing a false police verification report showing no criminal record, in spite of well knowing the fact that three criminal cases were pending against you at OP Sallahpur, PS Puramufti u/s 504 of IPC (Insult with intent to provoke breach of peace), 506 of IPC (criminal intimidation), 427 of IPC (punishment for office related to damages more than Rs.50/-) and u/s 3 & 4 of UP Control of Goonda Act (Externment of Gondas from any area and permission to return to that areas as specified by District Magistrate.)
(d) That, as per provisions of Dopt OM No.11012/7/91-Estt (A) dated 19 May 1993, "wherever it is found that a Government servant, who was not qualified or eligible in terms of Recruitment Rules, etc for initial recruitment in service or had furnished false information or produced false certificate in order to secure appointment, he should not be retained in service. If he is a Page No.16 probationer or a temporary Government servant, he should be discharged or his services should be terminated." The ibid OM prescribed that penalty of termination, removal or dismissal should only be imposed in such cases, keeping in view the status of the concerned Govt. Servant.
(e) That, as per para 10 of your appointment letter 24 ED/625/1/PC dated 07 June 2017, your appointment was provisional, subject to verification of documents submitted by you.
(f) In compliance of the Dop&T instructions dated 19 May 1993, Air Officer Commanding, 24 Equipment Depot, rightly terminated your service with effect from 05 March 2018 vide order 24 ED/625/1/PC dated 01 March 2018.
9. AND WHEREAS, the termination of service in your case was a 'Termination Simpliciter' based on instructions as stipulated in the terms & conditions of your appointment order dated 07 June 2017, and accordingly, the discharge was not punitive, meriting an Inquiry. This position has been upheld by a catena of decisions of the Hon'ble Supreme Court.
10. AND WHEREAS, after considering the entire material on record, I am of the opinion that there is no infirmity in the termination order dated 01 March 2018 passed by the Appointing Authority and accordingly, the request of setting aside the termination order cannot be acceded to.
11. NOW THEREFORE, in view of the aforesaid considerations, your appeal dated 12 March 2018 for reinstatement is hereby rejected being devoid of merit.
Signed at headquarters Maintenance Command, Indian Air Force on this the third day of January, 2019.
(GS Sandhu) Air Vice Marshal Senior Administrative Air Staff Officer"
21. Therefore it can be said that the previous criminal record, differences in the date of birth, and the other facts were also mentioned in the appellate order. Hence, the applicant deliberately did not submit a copy of the appellate order. The facts mentioned in the appellate order are also supported by the document submitted by the Page No.17 respondent. As per the condition mentioned in the appointment letter and the declaration mentioned in the applicant form, there was no any requirement to issue the notice to the applicant after getting the report about the forged document. His service was liable to be terminated without giving any notice because his appointment was subject to verification of the documents. The respondents also submitted OM No.11012/7/91 dated 19.05.1993. In Para-2 of the aforesaid memo, it is mentioned:-
"2. A question has now arisen as to whether a Government servant can be discharged from service where it is discovered later that the government servant was not qualified or eligible for his initial recruitment in service. The Supreme Court in its judgment in the District Collector, Vizianagrm vs. M. Tripura Sundar Devi (1990 (4) SLR 237 went into this issue and observed as under:-
"It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in discharge of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint a person with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice."
The matter has been examined in consultation with the Ministry of Law and Justice and it has now been decided that wherever it is found that a government servant, who was not qualified or eligible in terms of the recruitment rule etc, for initial recruitment in service or had furnished false information or produced a false certificate in order to secure appointment, he should not be retained in service. If he is a probationer or a temporary Govt. servant he should be discharged or his services should be terminated. If he has become a permanent Govt. servant, an inquiry as prescribed in Rule 14 of CCs (CCA) rules, 1965 may be held and if the charges are proved the government servant should be removed or dismissed from service. In no circumstances should any other penalty be imposed.``
22. In the case of Jagpal Singh Vs. The State of U.P., [SLP [C] No. 31526 of 2017 decided on 29.08.23 by Supreme Court] services of the petitioner who was appointed as the temporary Collection Peon stood terminated, notwithstanding, the subsequent promotion earned by him Page No.18 on the post of Collection Amin on the strength of his continued working under the interim order passed by the High Court. The Supreme Court observed that the petitioner was appointed as a temporary Collection Peon and his appointment letter clearly stated that the services of the petitioner were purely temporary and that he could be removed without any notice. The court said in para 11 :-
"11. The facts, as narrated above, clearly establish that the petitioner was appointed simply as a temporary Collection Peon and his services were determined simpliciter within three years vide order dated 30.11.1998. The said order, terminating the services of the petitioner, is final and conclusive. It has not been disturbed by any court of law. However, the petitioner continued to function as temporary Collection Peon on the strength of an interim order passed in Special Appeal which was ultimately dismissed. Therefore, any promotion given to the petitioner consequent to his continuance in service on the strength of the interim order would automatically fall to the ground once the Special Leave Petition is dismissed and the termination order attains finality."
23. In the case of Vijay Raj Vs. Union of India, [Writ A No.63968 of 2005 decided on 05.03.2020 by Allahabad H.C.] High Court of Allahabad has considered the law laid down by the Hon'ble Apex Court in a catena of decisions, including in a few Constitution Bench judgements and has ruled in paras 61(a) :-
"61. ............
(a) The termination of services of a temporary servant or probationer under the rules of his employment or in exercise of contractual right is neither per se dismissal nor removal and does not attract the provisions of Article 311 of the Constitution."
24. In Union of India and Others v. M. Bhaskaran, AIR (1996) SC 686, The Supreme Court held that when an appointment is procured by a person on the basis of a bogus and forged document, it would amount to misrepresentation and fraud on the employer. Therefore, it would create no equity in favour of the said person or any estoppel against the employer and for such misconduct, termination would be justified without any domestic inquiry. This Court held:
Page No.19"6. ... Consequently, it has to be held that the respondents were guilty of misrepresentation and fraud perpetrated on the appellant-employer while getting employed in railway service and had snatched such employment which would not have been made available to them if they were not armed with such bogus and forged labourer service cards. ... ... It was clearly a case of fraud on the appellant employer. If once such fraud is detected, the appointment orders themselves which were found to be tainted and vitiated by fraud and acts of cheating on the part of employees, were liable to be recalled and were at least voidable at the option of the employer concerned. ... ... The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice. It is of course true as noted by the Tribunal that the facts of the case in the aforesaid decision were different from the facts of the present case. And it is also true that in that case pending the service which was continued pursuant to the order of the Tribunal the candidate concerned acquired the requisite qualification and hence his appointment was not disturbed by this Court. But that is neither here nor there. As laid down in the aforesaid decision, if by committing fraud any employment is obtained, such a fraudulent practice cannot be permitted to be countenanced by a court of law. ..."
25. Therefore looking to the aforesaid facts, termination of the services of the applicant was done upon the basis of forged licence while upon verification, criminal cases were also found. There was strong suspicion about the date of birth and marksheet of the applicant. The driving license submitted by the applicant was found forged. Therefore, upon the aforesaid grounds termination of the applicant can be held a valid action. Hence, this O.A. having no force, therefore the O.A. is dismissed.
26. No costs.
(Dr. Sanjiv Kumar) (Justice B.K. Shrivastava)
Member (A) Member (J)
Sushil