Central Administrative Tribunal - Delhi
Parshu Ram Prasad vs All India Institute Of Medical Sciences on 25 October, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 2291/2011 New Delhi, this the 25th day of October, 2011 HONBLE MRS. MEERA CHHIBBER, MEMBER(J) HONBLE MR. SHAILENDRA PANDEY, MEMBER(A) Parshu Ram Prasad, S/o Late Shri S.S. Prasad, R/o I-398, Ansari Nagar, New Delhi-29. .. Applicant By Advocate : Shri Jivesh Tiwari. Versus All India Institute of Medical Sciences, Ansari Nagar, New Delhi-29 Through its Director. .. Respondent By Advocate : Shri Sanjeev Joshi. ORDER
Honble Mrs. Meera Chhibber Applicant has challenged order dated 14.6.2010 whereby he was placed under deemed suspension (page 15) with a further direction to the respondents to give him full salary with all consequential benefits from 14.6.2010.
2. It is stated by the applicant that he was appointed as Laundry Operator on 29.10.1989 and was confirmed in Grade-III on 28.9.1991. He was further given promotion as Laundry Operator Grade-II vide letter dated 6.8.2005 after over a period of 20 years. Memorandum dated 5.5.2010 was issued to the applicant stating therein that CBI, New Delhi has informed that FIR under Section 420 read with 468 and 471 IPC has been lodged against him. He should explain as to why disciplinary action should not be initiated against him (page 21). Applicant gave his reply stating therein that he was not aware about any such FIR. He has not committed any misconduct, yet without giving any reasons on the basis of said FIR, applicant was placed under deemed suspension vide order dated 14.6.2010. Being aggrieved, applicant filed an appeal for withdrawal of deemed suspension but no reply has been given to him. In these circumstances, he had no other option but to file the present OA.
3. It is submitted by the counsel for the applicant that the deemed suspension is bad in law because he was neither put behind bars nor his suspension has been reviewed nor he has been detained for more than 48 hours nor has he been convicted in any case, therefore, Section 10 (2) of CCS (CCA) Rules, 1965 could not have been applied in his case. Moreover, his appeal has not been decided nor has his subsistence allowance has been enhanced from 50% to 75% as per rules. He has thus prayed that the OA may be allowed.
4. Respondents have opposed this OA. They have stated that they were informed by the CBI that a regular case (FIR) has been lodged against the applicant on the ground that the applicant knowingly and intentionally had submitted a false and forged Scheduled Tribe Certificate Bearing No.A/S-I/III dated 25.07.1988 and also furnished false information about his social status/caste in the attestation form dated 06.11.1989 to the respondent and thereby illegally got the appointment for the post of Laundry Operator Gd-III reserved for ST candidate. It is also submitted that the CBI before registering the regular case conducts/preliminary inquiry in the matter and only thereafter a regular case is registered. Moreover, DM Siwan, Bihar has confirmed that the aforesaid ST certificate No.A/S-I/III dated 25.07.1988 had not been issued to any Parshu Ram Prasad (applicant herein), S/o Late Shri Shiv Shankar to Prasad, R/o Village Harpur, PS Goraya Kothi, Distt. Siwan from the office of DM, Siwan. The certificate in question does not bear signature of the then DM/Siwan. It is also submitted that even as per the statement of prominent persons of the applicants village, i.e. Harpur, the caste of the applicant is not Gond Tribe as mentioned in the Caste Certificate as submitted by the applicant at the time of his appointment. It is submitted that the Gond caste is recognized as Schedule Tribe (ST). It is prima facie clear from the evidence/records that the applicant has obtained the appointment as Laundry Operator against a reserved post of ST category by submitting a certificate which has been found to be a bogus ST certificate vide No.A/S-I/III dated 25.07.1988 and alleged to have been issued by DM, Siwan, Bihar.
5. They have further informed that during the inquiry/investigation, it was again found that the School Leaving Certificate/Transfer Certificate dated 13.12.1986 submitted by him at the time of joining at AIIMS was also found to be forged and fabricated, since as per evidence, the applicant has not studied in Prem Chand High School Village Sarari, Post: Gaia Kothi, Distt. Siwan, Bihar. On the basis of the above information provided by the CBI, the competent authority came to a prima facie conclusion that the applicant is liable to be proceeded with departmentally as well and due steps have been taken in this regard. The delay in taking due steps took place due to the pending investigation by the CBI. Under the above circumstances the competent authority decided to put the applicant under suspension.
6. It is further stated by the respondents that the applicant has knowingly and intentionally acted fraudulently by submitting a false and fabricated Scheduled Tribe (ST) Certificate, and by doing so, failed to maintain absolute integrity and devotion to duty and this is an act unbecoming of a government employee. It is submitted that not only is he liable for departmental action but is also liable for penal action as well. It is also submitted that the salary and the suspension allowance being drawn by him on the basis of forged and fabricated certificate is also subject to the final outcome.
7. They have also explained that applicant was called upon to provide complete copies of the proceedings before the Trial Court. However, no such document has been provided till date by the applicant. It is also submitted that there is no justification either on facts or in law for demand of either higher subsistence allowance or for the revocation of suspension. They have thus prayed that the OA may be dismissed.
8. We have heard both the counsel and perused the pleadings as well.
9. Counsel for the applicant strenuously argued that the applicant could not be deemed to have been suspended as he was neither convicted in any case nor was he detained behind bars for more than 48 hours, as such Rule 10 (2) of CCS (CCA) Rules, 1965 would not be attracted in his case. He, therefore, prayed that the impugned order dated 14.6.2010 may be quashed. Order dated 14.6.2010 reads as under:-
WHEREAS a case against Shri Parshu Ram Prasad, Laundry Operator, AIIMS Hospital in respect of a criminal offence is under investigation/trial.
AND WHEREAS, the said Shri Parshu Ram Prasad, was involved in FIR No.RC-11(S)/2009/SC-III/ND dated 30.12.2009.
NOW, THEREFORE, the said Shri Parshu Ram Prasad, is deemed to have been suspended with immediate effect in terms of sub-rule (2) of therefore, the undersigned in exercise of the powers conferred by sub-rule (1) of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, and shall remain under suspension until further orders.
It is also ordered that during the period of suspension of Shri Parshu Ram Prasad, he shall be paid a subsistence allowance at an amount equal to the leave salary which the Government servant would have drawn if he had been on leave on half average pay or on half pay and in addition, dearness allowance, if admissible on the basis of such leave salary.
Shri Parshu Ram Prasad, Laundry Operator, shall also be paid any other compensatory allowances admissible from time to time on basis of pay of which the Government servant was in receipt on the date of suspension subject to the fulfillment of other conditions laid down for the drawl of such allowance.
10. It is correct that applicant could not have been placed under deemed suspension but perusal of the above order shows that the order is a trifle confusing. In the first sentence it is stated that he is deemed to be suspended with immediate effect in terms of sub-rule (2) of Rule 10 but in the very next part of the sentence it is mentioned that the applicant shall remain under suspension until further orders in terms of Rule 10(1) of CCS (CCA) Rules, 1965. It clearly shows that the authority passing the order was not clear about the provision, but nonetheless merely because a wrong provision has been mentioned in the order, it would not make the order illegal so long the power to pass the order is available to the authority concerned. Applicant has been suspended under Rule 10 (1) in view of the fact that a criminal offence is under investigation against him as he is stated to be involved in FIR No.RC-11(S)/2009/SC-III/ND dated 30.12.2009. Rule 10 (1)(b) of CCS (CCA) Rules, 1965 would clearly be attracted in this case which reads as under:-
10. Suspension (1) The Appointing Authority or any authority to which it is subordinate or the Disciplinary Authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension -
(a) . .... (aa) . .. . (b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial.
In the instant case respondents have stated that they were informed by the CBI that a regular case (FIR) has been lodged against the applicant on the ground that the applicant knowingly and intentionally had submitted a false and forged Scheduled Tribe Certificate Bearing No.A/S-I/III dated 25.07.1988 and also furnished false information about his social status/caste in the attestation form dated 06.11.1989 to the respondent and thereby illegally got the appointment for the post of Laundry Operator Gd-III reserved for ST candidate. It is thus clear that power to suspend was very much available with the disciplinary authority as per Rule 10 (1)(b), therefore, order dated 14.6.2010 cannot be quashed simply because it has used the word deemed suspension. The Ist contention is, therefore, rejected.
11. As far as the second contention regarding non-review of suspension is concerned, it is seen there are very serious charges against the applicant. He was already given a memo dated 5.5.2010 calling upon him to explain why disciplinary action should not be initiated against him. Moreover, they have also produced in the court today show cause notice dated 22.10.2011 which has been served on the applicant during the pendency of this OA. It for ready reference reads as under:-
SHOW CAUSE NOTICE WHEREAS, Shri Parshu Ram Prasad had secured employment in AIIMS w.e.f. 28.9.89, as Laundry Operator Grade-II against the vacancy reserved for ST category on the basis of a forged and fabricated ST Certificate No.A/S-1/111 25.7.1988 purportedly issued by DM Siwan. He has also submitted forged and fabricated school leaving certificate/ transfer certificate dated 13.12.86 issued by Prem Chand High School, Village Sarai, Post Gouria Kothi, Distt. Siwan, Bihar. These certificates have not been issued by the respective authorities as have been found by the CBI during investigation pending trial. This act of Shri Parshu Ram Prasad, Laundry Operator Grade-II (under suspension) is thus responsible for gross misconduct, failed to maintain absolute integrity, devotion to duty and has acted in a manner which is unbecoming of an employee of the Institute, thereby contravening Rule 3(1) (i), (ii) (iii) of the CCS (Conduct) Rules, 1964 which is applicable to the employees of the Institute besides other civil & penal consequences.
Shri Parshu Ram Prasad, Laundry Operator Grade-II (under suspension) is also responsible for gross misconduct, failed to maintain absolute integrity, devotion to duty and has acted in a manner which is unbecoming of an employee of the Institute which entails civil, penal & other consequences. Shri Parshu Ram Prasad is hereby given an opportunity to make such representation as he may wish to make against the above acts, to show cause, as to why the appointment letter dated 14.9.89, be not recalled treated as cancelled forthwith.
In case Shri Parshu Ram Prasad, Laundry Operator Grade-II fails to submit his representation within 7 days of the receipt of this Memorandum, it will be presumed that he has no defence to make and orders will be liable to be passed against Shri Parshu Ram Prasad ex parte. This is, however, without prejudice to the other proceedings/ action which can be taken against him. Perusal of above shows his appointment itself is doubtful.
12. In above circumstances, if applicant has been continued under suspension, we find no justification to order his reinstatement. Ideally the suspension should have been reviewed as that is the mandate. However, since applicant has already been issued the above show cause notice, we feel the case calls for no interference at this stage.
13. It has been held in State Bank of Patiala & Ors Vs S.K. Sharma reported in 1996 (3) SCC 364 at 366 that the interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counter-productive exercise. The allegations against the applicant are that he had submitted forged and fabricated ST certificate dated 25.7.1988 not issued by DM Siwan and school leaving certificate/transfer certificate dated 13.12.1986 on the basis of which he had secured employment in AIIMS against the vacancy reserved for ST category. The matter is being investigated. Not only criminal case has been filed but show cause notice has also been given to the applicant, therefore, let law take its own course.
14. At this juncture it would be relevant to refer to the judgment of Honble Supreme Court in R. Vishwanatha Pillai vs. State of Kerala (2004) 2 SCC 105 wherein it was held as follows:-
"15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eyes of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under the Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India, Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Caste. In view of the finding recorded by the Scrutiny Committee and upheld upto this Court he has disqualified himself to hold the post. Appointment was void from its inception.............................."
Similarly in Bank of India vs. Avinash D. Mandivikar (2005) 7 SCC 690, the employee had got an appointment on 15.10.1976 on a post which was reserved for a member of Scheduled Tribe. The Scrutiny Committee invalidated the caste certificate on 18.7.1987 which was challenged by the employee. After several rounds of litigation, his services were terminated on 28.2.2002. After referring to the decision in the case of Milind and some other decisions, Honble Supreme Court allowed the appeal of the employer affirming the order of termination of service of the employee. Paragraph 6 of the judgment where the principle was laid down reads as under: -
"6. Respondent No. 1-employee obtained appointment in the service on the basis that he belonged to Scheduled Tribe. When the clear finding of the Scrutiny Committee is that he did not belong to Scheduled Tribe, the very foundation of his appointment collapses and his appointment is no appointment in the eyes of law. There is absolutely no justification for his claim in respect of post he usurped, as the same was meant for reserved candidate."
15. It is thus clear from above judgments that a person, who obtains appointment on a forged certificate, has no right to hold the post. In the instant case since show cause notice has already been issued to the applicant, we cannot direct the respondents to reinstate the applicant even if suspension has not been reviewed. We are sure after considering the reply given by the applicant, to the show cause notice dated 22.10.2011, respondents would pass a reasoned and detailed order within 4 weeks thereafter and decide the intervening period as well in accordance with law.
16. OA stands disposed of with the above directions. No costs.
(Shailendra Pandey) (Mrs. Meera Chhibber) Member (A) Member (J) Rakesh