Central Administrative Tribunal - Patna
Md Taslim vs Railway on 9 April, 2024
::1:: OA 590/2016/CAT/PATNA BENCH
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
O.A. No. 050/00590/2016
Reserved on: 06.03.2024
Pronounced on: 09.04.2024
CORAM
HON'BLE MR. SUNIL KUMAR SINHA, MEMBER [A]
HON'BLE MR. AJAY PRATAP SINGH, MEMBER [J]
Md. Taslim, son of Md. Jane Resident of Village Raje West, P.O. + P.S.
Manigachi District Darbhanga
........... Applicant.
-Versus-
1. The Union of India through the General Manager, Eastern Central
Railway, Samstipur
2. The Divisional Railway Manager (D.R.M) Eastern Central Railway
Samstipur
3. The Senior Divisional Engineer Eastern Central Railway, Samstipur.
4. The Senior Divisional Engineer Co-ordination E.C. Railway
Samstipur
......... Respondents.
For Applicant:- Shri Rajendra Prasad Advocate
For Respondents:- Shri H.R.Singh Additional Standing Counsel .
ORDER
AS PER AJAY PRATAP SINGH, MEMBER [JUDICIAL]
1. The present Original application under section 19 of the Administrative Tribunals, Act 1985, has been filed to set - aside the impugned order dated 19.7.2016, whereby applicant has been dismissed from the railway service without Service benefits. So also the applicant seeking direction to the respondents to pay salary and calculate the retirement benefits.
PRAYER
2. The applicant has claimed following reliefs (as extracted from the OA):
(1) "To direct the respondent authorities for set-aside the impugned order dt.
19.7.16 with immediate effect.
(2) To direct the respondent authorities to pay salary and calculate the retirement benefit of the applicant and pay the same."
::2:: OA 590/2016/CAT/PATNA BENCH
FACTS IN BRIEF
3. Briefly, stated the facts as adumbrated by the applicant are that on the basis of screened panel of casual labour approved on 31.07.1991 he was appointed on 19.08.2000 on the post of store khalasi. The case of applicant is that he was among 1213 screened casual labourers of Engineering Department, Darbhanga Sub-division on basis of total working days on 31.12.1979 and on his turn appointed on 19.08.2000. The sister-in-law of applicant Musmat Nussera Khatoon lodged complain and Railway Board vide letter dated 17.06.2014 forwarded to the Zonal Railway. The vigilance department of the Railway held enquiry against the applicant and applicant was served with notice and appeared in the enquiry.
4. The sister-in-law of the applicant in the written complain to the Railway Board stated that her husband Late Md. Taslim was murdered and died on 25.11.1995 and the present applicant is working fraudulently in fake name of her husband. The sister-in-law of the applicant further stated during enquiry that initially her husband worked casual labour in the Railway and after death of her husband, the applicant in the OA, brother of her husband somehow received offer of appointment in the name of Md. Taslim and joined on fake name, whereas the applicant in fact is the real brother of deceased Md. Taslim alias Mohammed Yaseen.
5. It is also the case of present applicant in OA that show cause notice dated 09.5.2016 and 14.05.2016 were issued and reply dated 16.03.2016 and 21.05.2016 respectively were filed and without considering the stand of the applicant. The impugned order dated 19.07.2016 issued terminating services, without the following procedure under Railway Services (Discipline and Appeal) Rules 1968 (for brevity hereinafter referred as Rules, 1968). The applicant retired on 31st August 2016 devoid of retirement benefits.
6. Per contra, the respondents have contested the claim of the applicant by filing the written statement, wherein they have submitted that the applicant while working on the post of Track Maintainer under the SSE/P-way Sakri in fake name of Md. Taslim son of Md. Jan. The wife of the Late Md. Taslim and real sister-in-law of the applicant lodged complaint to the Railway Board. The Railway Board on 17.06.2014 forwarded the complaint lodged by sister-in-law of the applicant alleging that her brother-in-law ::3:: OA 590/2016/CAT/PATNA BENCH namely Mohammed Shakur has been working on the name of her husband namely Late Md. Taslim, who expired on 25.11.1995 while working as Pump Operator in PHE Deptt, Government of Bihar at Dumraon.
7. The respondents have further stated in the WS that the fact of the matter is that on receipt of the complain from the sister-in-law of the applicant. The vigilance organization, East-Central Railway conducted enquiry and submitted report on 30.03.2016 with recommendation to take action against the applicant due to fraudulent working of the applicant in name of Md. Taslim as TrackMan under SSE(P-Way) Sakri.
8. The respondents stand in WS that Mohammed Taslim the brother of the applicant was casual labour in the railways and due to delay in regularization joined as pump operator in the Sasaram division of the PHE department, Government of Bihar in year 1983 and was murdered on 25.11.1995. The death certificate dated 28.11.1995 duly certified and verified by District Statistical Officer- cum- Additional District Registrar, Buxar dated 13.07.2015 (Annexure R-2). The settlement dues and other retiral benefits paid by PHE department, Government of Bihar after death of Md. Taslim as evident from orders dated 04.07.1996 and 04.07.1996(Annexure R15 & R16). The Sister-in-law of the applicant has stated in her statement during the enquiry conducted by the Staff welfare Inspector-Samastipur that her husband Md. Taslim died on 25.11.1995 and after death of Md. Taslim a letter was sent by the Railway and on that basis the applicant namely Md. Sakur, younger brother of Late Md. Taslim joined as Md. Taslim in Railways and still working as TrackMan. The applicant working illegally by way of impersonation.
9. The respondents in WS have further stated that proper enquiry was conducted by vigilance branch of the Railway, ECR, Hazipur and established the fact that applicant is Md. Sakur and working fraudulently in fake name of his deceased brother i.e. Md. Taslim alias Yaseen. Thus applicant secured appointment in the railway by way of fraud. The copy of enquiry report was served on applicant with the notice dated 09.05.2016 and 14.06.2016 and relied upon documents collected during enquiry vigilance Organization were also served on the applicant seeking response.
10. The applicant resorted to the delay tactics and response was also sought from the applicant related to death certificate dated 28.11.1995 of Md.
::4:: OA 590/2016/CAT/PATNA BENCH Taslim issued by District Statistical Department Buxar but no response given by the applicant. The applicant was granted several opportunities of hearing but applicant did not co-operate as evident from vigilance enquiry and staff welfare Inspector report dt. 22.08.2014. The applicant did not attend enquiry held on 21.08.2014 as evident from communication dated 21.08.2014 (Anexure R-8) by Sr. Section Engineer ECR, Sakri. So also the respondents stated that in the service book date of birth recorded 03.08.1956 is of deceased Md. Taslim and Aadhar card produced by applicant is fake with date of birth 01.01.1964 in fake name of Md. Taslim, who has expired on 25.11.1995 in harness as Pump Operator and his widow receiving pensionary benefits from Govt. of Bihar. The respondents issued impugned order dated 19.07.2016 (Annexure-04) is issued after affording opportunities of hearing, whereby after establishing the fact of death of Md. Taslim on 25.11.1995, his services terminated without financial benefits.
11. The Rejoinder has been filed by the applicant negating the averments made in the WS stating that the applicant filed death certificate dated 22.05.2014 of Md. Yasin son of Late Md. Jan, gram Raje, Post Manigachhi District Darbhanga issued by Panchayat Secretary. The applicant has stated that his brother Md. Yasin murdered on 25.11.1995 and also stated in para 6 of the rejoinder that the applicant attended the enquiry and given statement but enquiry officer not considered. The applicant has filed letter dated 07.10.2015 and specifically stated in the para 6 that he had attended the enquiry and he himself is Md. Taslim and also in para 8 stated that reply to notices submitted but no RUD supplied by authorities so reply could not be submitted. The case of applicant in nutshell is that Md. Yasin was working as Pump Khalasi in PHE department Government of Bihar died on 25.11.1995 (Annexure A-6 page no. 25 with the OA). The applicant in Para 12 of the rejoinder also made averment that the applicant has submitted reply to show cause notice and reply received by the authorities. The applicant has also made averment that no any charge sheet was issued and no enquiry held under Rules 1968 before issue of impugned order dated 19.07.2016, terminating services without financial benefits.
CONTENTIONS
12. Shri Rajendra Prasad learned counsel appearing for the applicant argued that Md. Jan had three sons namely Yasin died on 25.11.1995, Md. Taslim, ::5:: OA 590/2016/CAT/PATNA BENCH and Md. Tuyeb. The Complainant is applicant's Sister-in-law and wife of Md. Yasin not wife of Md.Taslim. Mr. Rajendra Prasad further argued that impugned order dated 19.7.2016 terminating applicant services as impersonator working in place of deceased brother namely Md. Taslim is baseless.
13. Shri Rajendra Prasad learned Counsel for applicant also argued that the applicant was working since 23.6.2000 as Store khalasi, thereafter discharged duties on the post of TrackMan. The impugned order dated 19.7 2016 of terminating services without holding enquiry under Rules 1968 is violation of principles of natural justice.
14. Shri H. R. Singh learned Additional Standing Counsel appearing for the respondents vehemently contended that the applicant is Md. Sakur son of Md. Jan and real brother of deceased Md. Taslim expired on 25.11.1995 and the applicant is impersonator as Md. Taslim. Md. Taslim was working as Pump Khalasi under Executive Engineer, PHE Deptt., Sasaram and died on 25.11. 1995 in harness. Shri H.R. Singh learned ASC further submitted that sister-in-law of the applicant sent complain to the Railway Board. The Railway Board on 17.06.2014 forwarded the complain and vigilance organization conducted enquiry after providing reasonable opportunity to the applicant. It was recommended on 30.3.2016 that the applicant worked fraudulently in name of Md. Taslim as a TrackMan under SSE (P. Way), Sakri.
15. Shri H. R. Singh learned Additional Standing Counsel appearing for respondents also argued that the deceased Md. Taslim, the real brother of the applicant earlier worked as Casual labourer in Railways and panel was approved on 31.7.1991 but office order dated 19.08.2000 in name of deceased Md. Taslim, (died on 25.11.1995) was issued for post of khalasi whereas the applicant on basis of office order dated. 19.03.2000 issued to Md. Taslim has joined in Railways by fake name of Md. Taslim, whereas his actual name is Md. Sakur, brother of deceased Md. Taslim.
16. Shri H. R. Singh learned ASC further Contended that deceased Md. Taslim was a Casual labourer in railways due to delay in appointment of screened panel of 1980-81. Meanwhile Md. Taslim joined as pump Operator in Sasaram Division, PHE Deptt, Government of Bihar and worked from 1983 and murdered on 25.11.1995 while working at Dumraon. The death ::6:: OA 590/2016/CAT/PATNA BENCH Certificate no. 864157 was issued on 28.11.1995 by the statutory authority District Statistical Officer-cum-Addl. District Registrar, Buxar. The death of Md. Taslim occurred on 25.11-1995 in front of Brahma Daba, PHE Deptt. Tubewell,Dumraon, Buxar and death certificate duly verified. The wife of deceased Md. Taslim received service benefits, ex-gratia payment and also receiving the family pension.
17. Shri H.R. Singh learned ASC. vociferously canvassed that the factum of death of the Md. Taslim is the established fact. The Personnel Branch, Samastipur Div. also conducted enquiry and reasonable opportunity was given to the applicant. The Senior Section Engineer informed Sr. D.P.O. E.C.R Samastipur on 21.8.2014 (Annexure R-8) that the applicant was summoned to furnish his Statement in the enquiry but deliberately, the applicant did not turn up in the enquiry. The applicant did not avail opportunity of hearing at appropriate time and now cannot take advantage of his own wrong and fraudulent appointment vitiates everything.
DISCUSSION AND FINDINGS
18. We have bestowed our anxious considerations on the rival contentions of the learned Counsels appearing for the parties and perused the material on record.
19. The undisputed facts are that Mosmat Naseera Khatun is the widow of real brother of the present applicant in the case on our hand. It is also not disputed that earlier Md. Taslim was engaged as casual labour in Engineering Deptt. of DBG sub-division and panel was screened based on total working on 31.12.1979. The appointment on regular basis got delayed and Md. Taslim joined at Dumrao in sasaram division of PHE Deptt. of Bihar government in year 1984 and during posting at Dumrao Md. Taslim was murdered on 25.11.1995. The Municipal Council Dumrao recorded in the register date and place of death of Md. Taslim and based on information of Municipal Council Dumrao statutory register, the death certificate no. 864157 dated 28.11.1995 (Annexure R-2) was issued by the registrar and verified on 13.07.2015 by District Statistical Officer-cum-Addl. District Buxar (Births and Death).
::7:: OA 590/2016/CAT/PATNA BENCH
THE ISSUE
20. From the above submissions of the parties and material placed on record. The issue which arises for our consideration-
"Whether the respondents are justified in passing the impugned order dated 19.7.2016, whereby the services of the applicant terminated for impersonating deceased Md. Taslim?"
21. We have carefully perused the record of the case placed in the OA. As evident from the record that the unidentified person shot dead Md. Taslim on intervening night of 24-25 November 1995. The Regional Chief Engineer on 29.11.1995 informed to the Superintendent Engineer PHE, Deptt. Circle Patna on 29.11.1995 vide Annexure R-4. The death certificate dated 28.11.1995 bearing number 864157 issued by Registrar Directorate of statistics, Government of Bihar specifically provided that as per record of Dumrao Municipal Council, district Buxar Md. Taslim s/o Md. Jan died on 25.11.1995. The extract of death certificate number 864157 dated 28.11.1995 (Annexure R-2) for ready reference reproduced as under-
फॉर्म सख्ं या -10 सख्ं या:864157
देख नियर् - 9
निहार सरकार
सांनख्यकी एवं र्ल्ू याकि निदेशालय निहार
र्ृत्यु प्रर्ाण पत्र
जन्म और मुत्यु अधिधियम 1969 की िारा 12/14 के अिुसार धिर्गत प्रमाधित धकया जाता है धिम्ि जािकारी पत्र मृत्यु अधिलेख से प्राप्त की र्ई है जो धिहार राज्य के िक्सर धजला के डुमराांव िर्र पररषद (स्थािीय कें द्र) सांिांिी रधजस्टर से है. िाम मोहम्मद- तसलीम धलांर्- पुरुष मृत्यु की तारीख: 25.11.1995. ां या -
रधजस्रीकरि सख् मृत्यु का स्थाि- डुमराांव रधजस्रीकरि की तारीख -28.11.1995 धपता/माता का िाम: मोहम्मद जाि निर्मत अनिकारी का हस्ताक्षर:
र्ोहर - अस्पष्ट
हस्ताक्षर:
रधजस्रार
28.11.1995
तारीख-
[Emphasis supplied]
22. We have extracted the contents of the Death Certificate dated 28.11.1995 and the death occurred on 25.11.1995 recorded within two days of death of Md. Taslim s/o of Md. Jan and registered on the basis of register of record of Dumrao Municipal Counsil District Buxar and duly verified on 13.07.2015. The Registrar issued certificate of death no. 864157 dated 28.11.1995 accordance with Act 1969 and same was verified. The verification report also reads as under-
::8:: OA 590/2016/CAT/PATNA BENCH
पत्रांक 23-0360/सा०ं /नदिांक 13/07/2015
निला सांनख्यकी पदानिकारी
-सह-
अपर निला रनिस्रार (िन्र्-र्ृत्यु) िक्सर।
सेवा र्ें,
र्हाप्रििं क (सतकम ता)
पवू म र्ध्य रे ल,
हािीपरु 844101
धवषय: मो० तसलीम, S/ मो० जाि के मृत्यु के जााँच के सांिांि में।
प्रसंर् : No. ECR/Vig/V-2/C@NG/SPJ@2014-07-0034/108 dated 28.05.15 र्हाशय, 11-2 उपयगक्त ु धवषयक प्रासांधर्क पत्र के सांिि ां में कहिा हैं धक मो० तसलीम, S/o मो० जाि, ग्राम राजे , पोस्ट थािा मिीर्ाछी, धजला- दरिांर्ा, राज्य धिहार की मृत्यु धदिाांक 25.11.1995, को स्टे शि रोड़ ब्रहम िािा के सामिे, पी०एच०ई०डी० िलकूप, डुमरााँव, धजला िक्सर, राज्य धिहार में हुआ है, धजसका धमलाि िर्र पररषद, डुमरााँव के मृत्यु ररपोट पज ां ी से धकया र्या एवां सत्य पाया र्या है।
अतः सादर सूचिार्म एवं आवश्यक कारम वाई देतु सर्नपमत। नवश्वासभािि निला सांनख्यकी पदानिकारी
-सह-
अपर निला रनिस्रार (िन्र्-र्ृत्य)ु िक्सर [Emphasis supplied]
23. It is clear as noonday that the death certificate dated 28.11.1995 related to death of Md. Taslim, Pump Khalasi while on duty at PHE Department, Dumrao District Buxar at Station Road, opposite Brahm Baba/daba, PHED Handpump, Dumrao certificed by the official records of Dumrao Municipal Council and verified. The Death Certificate no. 864157 dated 28.11.1995 is the public document and extract of information provided under the Section 12 and Section 17 of Act 1969 and authenticity verified and it is the public document maintained by the authorities under Act, 1969 and the relevant fact. The letters dated 30.11.1995 by Regional Chief Engineer, PHE Department, Patna to the S.E. PHE Department Circle Patna also related to death of Md. Taslim, Pump Khalasi at Dumrao murdered on 25.11.1995 by unidentified persons and requesting senior officers to visit at place of death of Md. Taslim, Dumrao, Buxar and to extend dependents ex- gratia payment, offer of compassionate appointment etc. The factum of death and name of Md. Taslim son of Md. Jaan and husband of Mosmat Naseera Khatun while working as Pump Khalasi, PHE Department, Dumrao, Buxar is well established as evident from the public documents.
24. So also it is pertinent that the PHE department, Government of Bihar vide orders dated 04.07.1996 and 04.07.1996 (Annexure R-5 and R-6 with WS) ::9:: OA 590/2016/CAT/PATNA BENCH specifically mentioned that Md. Taslim Pump Khalasi, PHE Department, Dumrao died on 25.11.1995 and service benefits released in favour of widow namely Smt. Naseera Khatun of late Md. Taslim, ex-Pump Khalasi, PHED, Dumrao. The factum of death of Md. Taslim son of Md. Jaan resident of Village Raje, Post- Thana Manigachi District Darbhanga is well established.
25. We find sufficient reliable material on record to hold that Md. Taslim ex- Pump Khalasi, PHED, Dumrao Govt. of Bihar died on 25.11.1995 and widow Mosmat Naseera khatoon has received service benefits and same is undisputedly established. It is also suffice to hold that the present applicant is the real brother of deceased Md. Taslim ex-pump Khalasi, PHE Deptt., Dumrao died on 25.11.1995, Dumrao while on duty and the above facts are well-established as discussed in detail based on public documents extracted herein above read with statutory provisions of Act, 1969.
26. The gist of the arguments of learned counsel appearing for the applicant that the applicant is Md. Taslim s/o Md. Jaan, Gram Raje & PS Manigachi District Darbhanga and his elder brother Md. Yasin s/o Md. Jaan was Pump-khalasi. Md.Yasin s/o Md. Jaan, Pump-khalasi PHE Department, died on 25.11.1995-at Raje gram and death Certificate no. 550457 dated 22.5.2014 issued by Panchayat Sachiv, Gram Panchayat, Raje and PS Marigachi District Darbhanga, Bihar.(Page 25 of the OA) and also filed copy of aadhar card to establish his identity as Md. Taslim son of Md. Jaan resident of Gram Raje & PS Manigachi, District Darbhanga.
27. The parliament enacted the registration of births and deaths Act 1969 (in short the Act 1969) to provide for the regulation of Registration of Births and Deaths and for matters connected there with. The Act 1969 came into force on 1st April 1970 in the state of Bihar vide notification dated 7th March 1970 in the Gazette of India.
28. The provisions of Act 1969 germane to consider and answer contentions of the applicant Section 13 of Act 1969 reads as follows:
(1) "Any birth or death of which information is given to the Registrar after the expiry of the period specified therefor, but within thirty days of its occurrence, shall be registered on payment of such late fee as may be prescribed. (2) Any birth or death of which delayed information is given to the Registrar after thirty days but within one year of its occurrence shall be registered only with the written permission of the prescribed authority and on payment of the prescribed fee and the production of an affidavit made before a notary public or any other officer authorised in this behalf by the State Government."
::10:: OA 590/2016/CAT/PATNA BENCH (3) Any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order made by a magistrate of the first class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of the prescribed fee.
(4) The provisions of this section shall be without prejudice to any action that may be taken against a person for failure on his part to register any birth or death within the time specified therefore and any such birth or death may be registered during the pendency of any such action."
[Emphasis Supplied]
29. We have analysed and it is clear that Section 13 of Act, 1969 deals with delayed registration of births and deaths. Any birth or death of which information is given to the registrar birth and death, after the expiry of the period specified, but within 30 days of its occurrence shall be registered on payment of such late fee. Any birth or death of which delayed information given after 30 days, but within one year shall be registered with the written permission of the prescribed authority and on payment of prescribed fee. Sub-section (3) of section 13 of Act 1969 mandates that any birth or death which has not been registered within one year of its appearance that can also be registered and such registration shall happen only after an order by a Magistrate of the First Class under sub-section (3) on verifying the correctness of the birth or death.
30. We have extracted the section 13 of Act 1969 and analysed its import that after 30 days but within one year death or birth shall be registered with written permission of JMFC and the aforesaid is the mandate of the Act, 1969.
31. The Bihar Registration of Births and Deaths Rules, 1999 (for brevity hereinafter referred as Rules, 1999) framed in the exercise of powers conferred by section 30 of the Act, 1969 by the Government of Bihar with the approval of the Central Government. The Rules, 1999 came into force with effect from 1.1.2000 through notification in the official gazette extent to the whole state of Bihar. The relevant Rule 1999 reads as:
32. The Rule 9 of Rules 1999 for Bihar Registration of Births and Deaths specifically prescribes authority for delayed registration and fee payable reads as:
Rule-9: Authority for delayed registration and fee payable thereof-
(1) Any birth or death of which information is given to the registrar after the expiry of the period specified in Rule 5, but within 30 days of its occurrence shall be registered as payment of late fee of rupee two. (2) Any birth or death of which information given to the register after 30 days but within one year of its registered only with the permission of the officer prescribed in this behalf and on payment of a late fee of rupees five.
::11:: OA 590/2016/CAT/PATNA BENCH (3) Any birth or death which has not been registered within one year office, shall be registered only on an order of a Magistrate of the first class or a presidency Magistrate and on payment of a late fee of rupees ten.
[Emphasis Supplied]
33. As evident from the official record that the death of Md. Taslim, ex- Pump Khalasi, Public Health Engineering Department, Govt of Bihar, occurred while on duty at Dumrao on intervening night of 24-25th November, 1995 and Senior officer of the PHE Deptt. on record namely Regional chief- Engineer on 30.11.1995 (Anexure R-4 with WS) taken note and informed senior officers of the PHE Deptt. of unnatural death by murder of Md. Taslim ex-Pump Khalasi by unidentified persons on site of PHE Deptt. at Dumrao district Buxar. The Municipal Council office registered the information of death 25.11.1995 and based on the information in the official record of the Muncipal Council Dumrao. The Registrar, births and deaths, Statistical Department Govt of Bihar issued death certificate no. 864157 dated 28.11-1995 (Annexure R-2 with the WS) that death of Md. Taslim son of Md. Jaan occurred On 25.11.1995 and accordance with section 12 r/w sec 17 of Act, 1969 the information based on information recorded in statutory register maintained at Municipal Council, Dumrao district Buxar and registered on 28.11. 1995. The death of Md. Taslim occurred on 25.11.1995 in harness and same was recorded in the Statutory register kept at Municipal Council, Dumrao for registration of deaths. The death of Md. Taslim occurred on 25.11.1995- on Station road, opposite Brahma daba, PHE Deptt handpump Dumrao District Buxar and registered vide death Certificate dated 28.11.1997.
34. The applicant has filed the death certificate dated 22.05.2014 of Md. Yasin and the bare perusal of the death Certificate no.550457 dated 22.5.2014 and date of death 25.11.1995 of Md. Yasin Son of Md. Jaan place of death gram Raje and registration dated 22.5.2014 by the issuing authority Panchayat Sachiv, Gram Panchayat Raje, Ps Manigachi, District Darbhanga is on face of record after the complaint and of year 2014 after more than eighteen years of death of Md. Taslim i.e. 25.11.1995 at Dumrao District Buxar. The death certificate of Md. Yasin son of Md. Jaan issued in contravention with Sub-Section (3) of Section 13 of parent Act 1969 and also in violation of Rule 9 of Rules 1999 hence the death Certificate dated 22.05.2014 by Panchayat Sachiv after more than eighteen years of actual date of death 25- 11-1995 has no legal legs to stand and Ultra-vires to the provisions of ::12:: OA 590/2016/CAT/PATNA BENCH parent Act, 1969 and the Rules 1999 corresponding the Act, 1969 which holds the field.
35. On basis of the mandate of the Act 1969 read with Rules 1999, we can safely hold that certificate of death of Md. Yasin (Annexure A-6 series page no. 25) death occurred on 25.11. 1995 and date of registration of death is 22.5.2014 by Panchayat Sachiv, Gram Panchayat Raje Manigachi without order of the JMFC under sub-sec(3) of Section 13 of Act, 1969 read with Rule 9 (3) of Rules,1999 is void-ab-initio, without jurisdiction and nullity and contention of applicant does not have legal legs to stand and fails in toto being misleading, baseless and after thought and said contention of applicant deserves to be rejected and fails, appears to be after thought to merely counter and contest the matter of allegation of fraud and punishable under Section 23 of Act 1969 by the Magistrate.
36. We are now examining the another limb of argument of the learned counsel appearing for the applicant that the applicant worked on the post of TrackMan since 23.06.2000 in Railways hence termination of services without holding enquiry under Rules 1968 is illegal. In our considered opinion to the above contention of learned counsel for applicant lies in appreciating facts well established in present case reiterated at the cost of repetition. The cause of action arose in the present case on receipt of complain from Mosmat Naseer Khatoon w/o late Md. Taslim son of Md. Jaan resident of Village Raje, Post Manigachi. The Railway Board on 17.06.2014 forwarded the complain to Vigilance Branch. The complainant alleged that applicant real name is Md. Shakur but working in the forged name of her husband namely Md. Taslim, who earlier worked as Casual labour but due to delay in appointment of panel of 1980-81 in Railway, her husband Md. Taslim son of Md. Jaan, real brother of the applicant and Md. Taslim joined at Dumrao in Sasaram Division of PHE Deptt. as Pump khalasi, from year 1983-84 and Md. Taslim was murdered on 25.11.1995 at Dumrao by unknown persons. The sister-in-law of the applicant alleged that after death of her husband namely Md. Taslim, his younger brother Md. Shakur- (the applicant in present OA) managed to get letter for medical exam by name of Md. Taslim. The Vigilance Branch of Railway on detail investigation report-dated 30.3.2016 established the fact on documentary evidence that Md. Taslim died on 25.11.1995 in harness and ::13:: OA 590/2016/CAT/PATNA BENCH PHE deptt, Govt of Bihar made payment of settlement dues and other benefits to widow of Md. Taslim and sister-in-law of the applicant and Certified on 04.08.2015 during course of business by Executive Engineer Sasaram Division. The vigilance Team of Railways visited native Village of Md. Taslim and recorded statement. The Sarpanch of gram Raje certified that late Md. Jaan had three sons-
(1) Md. Taslim alias Md. Yaseen (2) Md. Shakur (3) Md. Tayeab
37. The factum of death of Md. Taslim died on 25.11.1995 well-established fact based on documentary evidence and the complainant Mosmat Naseera Khatoon sister-in-law of present applicant is the widow of Md. Taslim, ex-Pump khalasi, PHE Deptt., Bihar Govt. whereas applicant is in fact Md. Shakur- working in fake name of Md. Taslim and applicant is not Md. Taslim but working on his name. The said factum was further supported as mentioned in the letter dt. 12.02.2014 by sarpanch to refer to court of SDO, Laheriyasari, District Darbhanga that Md. Shakur is younger brother of late Md. Taslim joined railway after death of Md. Taslim in name of Md. Taslim by forgery and practicing high level of fraud by way of impersonation.
38. The office of Divisional Railway Manager (Personnel) Samastipur also conducted enquiry pursuant to memo dated 24.07.2014 (Annexure R-7 with WS). The applicant was informed on 21.08.2014 by the Senior Section Engineer (in short SSE) to attend the enquiry on 21.8.2014. The SSE in writing informed vide letter dated 21.8.2014 (Annexure R-8 with the WS) that applicant was personally informed and contacted on Mob. No. 9122407556 to attend the enquiry but the applicant did not avail opportunity of hearing and also did not cooperate in the enquiry. The Chief Welfare Inspector on 22.8.2014 submitted Report (Annex R-7).
39. The Vigilance, Branch of East Central Railway submitted report dated 30.3.2016 with categorical findings that it is established beyond doubt that Md. Taslim actually earlier worked in Railway as a Casual labour and already died on 25.11.1995 and the applicant working as TrackMan under SSE(P-Way) Sakri in name of Md. Taslim is someone other than Md. Taslim. The Vigilance Branch of Railway recommended that present ::14:: OA 590/2016/CAT/PATNA BENCH employee- the applicant is working fraudulently in name of Md. Taslim as a TrackMan under SSE (P-Way) Sakri. The G.M. (Vigilance) ECR informed on 30.3.2016 (Annexure R-1) D.R.M. Samastipur that during investigation it is established that Md. Taslim who had worked in Railway as a Casual labour expired on 25.11.1995 and applicant presently working as TrackMan in name of Md. Taslim is an impersonator.
40. We have also perused the record and are of the considered opinion that appointment of the applicant in Railways was not based on any advertisement and there was no any appointment order made by the Railways in his favour. The claim of applicant working based on order dated 19.08.2000 in name of deceased Md. Taslim. The applicant was given opportunity to prove the existence of any appointment order in his name. The applicant has filed the OA and onus to prove existence of such a legal right in his favour to claim legal right to continue. As per illustration
(g) to Section 114 of the Evidence Act, there is a presumption that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. The fact that applicant was given opportunity to prove existence of order in his own name and applicant in rejoinder admitted that opportunities of hearing given and has not submitted his response and also not participated in the enquiry and same leads to the inference that no such fact was in existence and very appointment of the applicant is fraudulent in nature and no any appointment order was made in his favour and merely continuance in service for long period of time in our opinion not prevent Railways from discontinuing such fraudulent appointment and Railways cannot be compelled to pay to the applicant on the basis of appointment order dt 19.08.2000 which was never issued by Railways in favour of the applicant.
41. The Hon'ble Supreme Court in case of State of Manipur vs. Y. Token Singh (2007) 5 SCC 65 observed as under:-
18. Moreover, it was for the respondents who had filed the writ petitions to prove existence of legal right in their favour. They had inter alia prayed for issuance of a writ of or in the nature of mandamus. It was, thus, for them to establish existence of a legal right in their favour and a corresponding legal duty in the respondents to continue to be employed. With a view to establish their legal rights to enable the High Court to issue a writ of mandamus, the respondents were obligated to establish that the appointments had been made upon following the constitutional mandate adumbrated in Articles 14 and 16 of the Constitution of India. They have not been able to show that any advertisement had been issued inviting applications from eligible candidates to fill up the said posts. It has also ::15:: OA 590/2016/CAT/PATNA BENCH not been shown that the vacancies had been notified to the employment exchange."
[Emphasis supplied]
42. In Y. Token Singh's case (supra), the Hon'ble Supreme Court has observed that any action, which had not been taken by an authority competent therefore and in complete violation of the Constitutional and legal framework, would not be binding on the State. Their Lordships further observed that once the authority itself has denied to have issued a letter of appointment, there was no reason for the State not to act pursuant thereto. It was further observed that once the offers of appointment were found to be on the basis of forged documents, the State cannot be compelled to pay salary from the State exchequer.
43. The Hon'ble Supreme Court in the case of Jainendra Singh v. State of Uttar Pradesh, (2012) 8 SCC 748, while dealing with a case relating to fraudulent appointment orders, observed as under:
"29.1. Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer. 29.2. XX 29.3. When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry."
[Emphasis supplied]
44. From the foregoing enunciation of law on the subject, it is clear that in the case of fraudulent and forged appointments, the appointment orders are to be treated as non-est in the eyes of law and person seeking enforcement of his/her right on the basis of these forged appointment orders cannot claim equity in his favour on the ground of continuation of his service for a long period of time.
45. The Hon'ble Supreme Court in catena of judgments has held that the appointment which was never been in existence is non-est in the eyes of law. It is also a settled principle of law that if an appointment is non-est in the eyes of law or based upon forgery and fraud, it is not necessary for the employer to hold an enquiry before terminating the Services of such an employee like applicant in the present case on our hand. The Hon'ble Supreme Court in case of Kendriya Vidyalaya sangathan vs Ajay Kumar Das, (2002) 4 SCC 503 in the case that orders issued after the ::16:: OA 590/2016/CAT/PATNA BENCH termination of services of the appointing authority were not valid and therefore the question of observance of principles of natural justice would not arise. So also in case of Y. Token Sorgle (Supra) the Hon'ble Supreme Court, while dealing with a case where offers of appointment were cancelled on the ground that they had been non-est in the eyes of law and the appointment orders were fake ones, held that the appointees were not entitled to hold the posts and as such, the principles of natural justice were not required to be complied.
46. We can safely hold that so far as case on our hand since the appointment of the applicant was fraudulent in nature working on name of Md. Taslim and using service details date of birth etc of Md. Taslim merely on continuous on Railway Service for a long period would not create any equity in his favour.
47. The Hon'ble Supreme Court in case of Ram Preeti yadav versus U.P.Board of High School and intermediate education and others, (2003) 8 SCC 311 was seisin with a case without disclosing the fact that his result for intermediate exam withhold and secured employment as a teacher in Mathura Inter College, Naharpur. Some enquiry was made as regards to passing of the inter-mediate exam and it was found that result of inter- - mediate exam of year 1984 was cancelled. The Hon'ble Supreme Court observed as under-
"13. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud.
14. In Lazarus Estates Ltd. v. Beasley the Court of Appeal stated the law thus: (All ER p. 345 C-D) "I cannot accede to this argument for a moment. No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever;"
[Emphasis supplied]
48. In Case of District Primary School Council, West Bengal versus Mritunjoy Das and others reported in (2011) 15 SCC 111. The Hon'ble Supreme Court was dealing with a case, wherein the respondents obtained Certificate of training course and secured appointment as Assistant Teacher in Primary School, later it was found that respondents taken admission in training course by inflating their marks otherwise they were not eligible to ::17:: OA 590/2016/CAT/PATNA BENCH take admission. The show cause notice was given and none of respondents availed opportunity of personal hearing and given replies to notices. The orders of dismissal was passed. The writ petition against dismissal order was dismissed and thereafter Writ appeal before Division Bench of High court allowed and in the appeal before Hon'ble Supreme Court. The Hon'ble Supreme Court observed as -
9. On going through the records placed before us, what we find is that the contesting respondents herein inflated their marks in order to obtain admission in the Primary Teacher's Training Institute. Had the marks not been inflated in the aforesaid manner, the contesting respondents would not have got the admission in that particular Institute as it is disclosed from the records. Therefore, the admission sought for was through an illegal means which is to be deprecated. The conduct of the contesting respondents being such, we cannot find fault with the course of action taken by the appellant herein. It is not that the contesting respondents were not given any opportunity of hearing. They were given a show-cause notice and were also given an opportunity of hearing which opportunity they did not accept although they submitted a reply to the show-cause notice. There is, therefore, no violation of the principles of natural justice in the present case. If a particular act is fraudulent, any consequential order to such fraudulent act or conduct is non est and void ab initio and, therefore, we cannot find any fault with the action of the appellant in dismissing the service of the contesting respondents. In this context we refer to the decision of this Court in Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education for the proposition that no person should be allowed to keep an advantage which he has obtained by fraud.
10. In view of the aforesaid position, we set aside the judgment and order passed by the Division Bench of the Calcutta High Court and restore the order passed by the learned Single Judge of the High Court.
[Emphasis supplied]
49. We have also analysed the material evidence available on record and also noticed that on 20.8.2014 the applicant was informed to attend enquiry on 21.08.2014 in office of SSE but inspite of giving opportunity of hearing. The applicant did not cooperate Chief Welfare Inspector in the enquiry related to fraudulent appointment of the applicant. Thereafter the competent authority Senior Section Engineer (Coordination) Samastipur issued show cause notices dated 9.5.2016 and 14.6.2016 along with copy of Vigilance enquiry report. The applicant admittedly received the notices and enquiry report copy but adopted delay tactics as evident from notice dated 14.06.2016. The respondents have also placed on record the service book with date of birth 03.08.1956 which is of late Md. Taslim and not of the applicant.
50. The applicant has been found to be involved in high level of fraud using means of impersonation to secure employment in the railways, once applicant committed wrong as such he cannot be allowed to take ::18:: OA 590/2016/CAT/PATNA BENCH advantage of his own wrong as per the settled position of the law that the wrongdoer cannot be allowed to take advantage of his own wrong.
51. Hon'ble Supreme Court in case of Kusheshwar Prasad Singh versus State of Bihar and others reported in (2007) 11 SCC 447 has held "a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently "a wrong doer ought not to be permitted to make a profit out of his own wrong."
[Emphasis Supplied]
52. Similar view has been reiterated by Hon'ble Supreme Court in the case of Indore Development Authority versus Shailendra (Dead) through legal representatives and Others reported in (2018) 3 SCC 412. Their Lordships held at paragraph 143 reads as:-
"It is a settled proposition that one cannot be permitted to take advantage of his own wrong. The doctrine 'commodum ex injuria sua nemo habere debet' means convenience cannot accrue to a party from his own wrong. No person ought to have advantage of his own wrong. A litigant may be right or wrong. Normally merit of lis is to be seen on date of institution. One cannot be permitted to obtain unjust injunction or stay orders and take advantage of own actions. Law intents to give redress to the just causes, at the same time, it is not its policy to foment litigation and enable to reap the fruits owing to the delay caused by unscrupulous persons by their own actions by misusing the process of law and dilatory tactics."
[Emphasis Supplied]
53. The Hon'ble High Court, Delhi in Anneuser Busch Inbev India Limited versus Commissioner (Excise, Entertainment and Luxury tax) & ors MANU/DE/4352/2019 has held-
"The conduct of the party complaining about breach of principles of natural justice would also have to be considered. Having participated in such proceedings without protest the petitioner cannot be now allowed to challenge the procedure adopted by the appellate authority merely because, the result is not to his liking. Law does permit a party to both approbate and reprobate."
[Emphasis Supplied]
54. In Joint Action Committee of Airline Pilots' Association of India (ALPAI) & Ors versus Director General of Civil Aviation & Ors 2011 (5) SCC 435, the Hon'ble Supreme Court explained the doctrine of election as under:-
"12. The doctrine of election is based on the rule of estoppels-the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppels by election is one of the species of estoppels in pais (or equitable estoppels), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily. [Vide Babu Ram v. Indra ::19:: OA 590/2016/CAT/PATNA BENCH Pal Singh, P.R. Deshpande v. Maruti Balaram Haibatti and Mumbai International Airport (P) Ltd. V. Golden Chariot Airport.] [Emphasis Supplied]
55. We are of the considered opinion that applicant was afforded reasonable opportunity of hearing against proposed action. The Case on our hand relates to securing appointment in railways by practicing fraud and the fraud of one of highest category by impersonation is well established fact and we do not find any fault with course of action taken during due course of business by the Railways as employer and there is no violation of Principles of natural justice as impugned order has been passed after affording reasonable opportunity of hearing and heard before taking action against the applicant.
56. The applicant obtained appointment by practicing fraud, misrepresentation and applicant has failed to establish the legal right to continue in service. The applicant has miserably failed to establish the existence of order of appointment dated 19.8.2000 in his name and there is no any legal basis to continue in the service. The applicant appointment is void-ab-initio and nullity in eyes of law and there is no any appointment order in his favour and name of applicant. The service benefits are payable when person established his vested legal right against the substantive appointment. The fraudulent appointment of applicant has vitiated everything whatsoever and we do not find any merit in the present OA.
CONCLUSION
57. We have analysed the issue in detail and in view of the above decide the issue against the applicant. The impugned order dated 19.07.2016 in the present OA is upheld being justified and fraudulent appointment of the applicant vitiated everything and order dt. 19.07.2016 does not suffer from any infirmity and the applicant is not entitled to the relief sought in the OA.
58. Resultantly, the original application being devoid of merit accordingly dismissed.
59. There shall be no order as to cost.
60. As a sequel thereof, pending miscellaneous application(s), if any shall also stands disposed of.
Sd/- Sd/-
[Ajay Pratap Singh] [Sunil Kumar Sinha]
Member [J] Member [A]
du/-