Central Administrative Tribunal - Delhi
Ms. Rekha Nagar vs National Crime Records Bureau on 24 December, 2014
Central Administrative Tribunal
Principal Bench
OA No. 573/2013
Reserved on: 22.07.2014
Pronounced on: 24.12.2014
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. B.K. Sinha, Member (A)
Ms. Rekha Nagar,
W/o Shri Yashpal Nagar,
Sub-Inspector (FP),
National Crime Records Bureau,
RK Pura,, New Dehi
R/o 4566, Kalnd Hills, Sector 49,
Faridabad (Haryana) -Applicant
(By Advocate: Shri Malaya Chand)
VERSUS
1. National Crime Records Bureau,
Govt. of India,
Ministry of Home Affairs,
Through its Director,
East Block-7, RK Puram,
New Delhi
2. Union of India through
Ministry of Home Affairs,
North Block,
New Delhi-110011 -Respondents
(By Advocate: Sh. R.N. Singh)
ORDER
Dr. B.K. Sinha:
The instant Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985 impugning the charge-sheet dated 20.09.2012 issued against the applicant along with imputation of misconduct for securing appointment as Sub Inspector (Finger Print) in National Crime Records Bureau against vacancy reserved for Scheduled Tribe (ST) by submitting a false Scheduled Tribe certificate.
2. The case of the applicant is that her father belonged to Gujjar Community and this community being recognized as Scheduled Tribe in the State of Himachal Pradesh, it was duly recorded as ST in the Records of the State. The applicant received her school education from Sunder Nagar and graduated from H.P. University, Shimla.
3. Since the Gujjar Community has been recognized by the State of Himachal Pradesh as Scheduled Tribe Community, the ST caste certificate was issued to the applicant in 1995 by the Executive Magistrate, Sunder Nagar duly certifying that she and her family ordinarily reside in Village Khilra of Mandi Distt. of Himachal Pradesh and belong to the Gujjar Community, which is recognized as a Scheduled Tribe there.
4. The applicant applied to the Staff Selection Commission in response to an advertisement issued for the post of Sub Inspector (Finger Prints) in NCRB wherein it has been claimed that applicant belongs to the Gujjar Community and her application was supported by a certificate in the Performa prescribed by the Staff Selection Commission (SSC). The applicant qualified in the said examination and the respondents, after verification of her character and further scrutiny of antecedents, appointed her against a reserved vacancy as Scheduled Tribe candidate in the year 1998.
5. It was just after 14 years of her appointment in NCRB, one of the applicants colleagues, Kamlesh Meena, made a complaint to the CBI alleging that the ST certificate, on the basis of which the applicant got employment, was a fake one.
6. The said complaint was referred by the CBI to NCRB, which in turn forwarded it to the Dy. Commissioner, Mandi Distt. Himachal Pradesh for inquiry.
7. In response to this, the Deputy Commissioner (Mandi Distt.) submitted a Verification Report stating that the applicant belongs to ST, i.e., Gujjar (Annexure A-1 Page 28 of the paper book).
8. In the facts and circumstances, the applicant filed a Civil Petition in the Court of Civil Court of Sundar Nagar, Mandi wherein the department is also one of the respondents, i.e, respondent no.4 and the same is pending adjudication. The applicant has, therefore, filed the present OA for directions to the respondents to stay the departmental proceedings till the matter regarding the bona fide or otherwise of the ST Certificate issued to her is decided by the Court of Civil Judge Sunder Nagar Mandi, Himachal Pradesh and the next date of hearing is 20.03.2013.
9. The applicant also filed an appeal dated 3.11.2012 to the disciplinary authority for withdrawing the charge-sheet issued to the applicant wherein it was submitted that the said Kamlesh Meena, the complainant, was in line of promotion with the applicant, and, therefore, he approached the SDO in order to scuttle her promotion.
10. The applicant further submitted that the Scheduled Tribe certificate issued to her has not been revoked to this date and as per Rule 14(4)(a) of the CCS(CCA) Rules, 1965, the disciplinary authority has the inherent power to drop all the charges after examination of the written statement of the defence submitted by the charged officer and that the disciplinary authority is not bound to appoint an inquiry officer for conducting an inquiry into the charges which are not admitted by the charged officer. The applicant and her parents adopted customs of Himachali Gujjar Tribes and have relatives who are Gujjars of Himachal Pradesh. She is a domicile and bona fide Himachali Gujjar Tribe and is a genuine claimant of ST Status of Sunder Nagar, Mandi, HP.
11. The applicant has further argued that the impugned memo of charges has been issued during the pendency of Civil suit before the Civil Judge, Sunder Nagar and the matter is pending adjudication. The applicant has also argued that she was born, studied, grown up and married in Sunder Nagar, Mandi, HP and, therefore, she became resident of Sunder Nagar, Mandi. Her father and his family is permanent resident of Village Khilra, Sunder Nagar, Mandi and have several relatives residing in their own houses in the said village for more than 60 years belonging to the Gujjar Community of Himachal Pradesh. Her parents adopted all customs of Himachali Gujjars several years ago and family became a member of HImachali Gujjars. In recognition of the same, the applicant produced a certificate of bona fide Himachali vide certificate No. 3060 dated 22.07.1996 by the competent authority. The applicant has further argued that her certificate is neither false nor has it been obtained by deceitful means. It is a genuine bona fide certificate issued by legal and fair means.
12. The issue under consideration is one which largely relates to the controversy as to whether Gujjar Community belonging to Haryana where the Gujjar caste is deemed as an OBC, will be recognized as Gujjar caste declared as Scheduled Tribe in Himachal Pradesh, the State where the applicant has settled down, acquired matrimonial relationship and has adopted the customs and culture of the Gujjar community belonging to State of Himachal Pradesh.
13. The applicant has relied upon the judgment of the Honble Supreme Court in the case of Director of Tribal Welfare, Govt. of Andhra Pradesh Vs. Laveti Giri & Anr., (1995) 4 SCC 32 to contend that only a committee formed by the State can investigate the genuineness of a caste certificate. Therefore, the applicant has prayed for the following reliefs:-
(i) Quashing and setting aside the impugned Charge sheet dated 20.09.2012 (Annexure-AA-1)
(ii) Direct the respondent not to hold the Inquiry as the final outcome of Civil Suit No.107/2011 pending adjudication at Sunder Nagar, Mandi (H.P.) and as per the Full bench decision of Sukhdev Singh Vs. GNCT of Delhi & Ors. in OA No.2816/2008 SJJ 2012(1) CAT 33 wherein the Honble Tribunal has held that the judicial verdict would have precedence over decision in departmental proceedings and the subordinate rank would be restored to his status with consequential relief
(iii) pas any other order/s as deemed fit and proper by the Honble Court in the facts and circumstances of the case.
14. The applicant has also relied upon the case of Mithlesh Verma Vs. GNCT of Delhi & Ors. decided by this Tribunal vide order dated 15.5.2013 in OA No. 309/2013 holding that the appropriate forum for deciding the caste of a person is the Caste Certificate Scrutiny Committee appointed by the State Government.
15. The respondents have filed their counter affidavit opposing the OA. It has been submitted that the departmental inquiry has been completed and has been concluded, but no order has been passed on account of stay order operating against the respondents. Referring to the admission of the applicant regarding prior filing of Civil Suit before the competent court in Sunder Nagar, the learned counsel for the respondents vehemently argued that the very existence of the Suit renders this OA infructuous.
16. The respondents have further submitted that father of the applicant Shri Narayan Singh was originally a resident of Bilochpur Tehsil of Palwal District, Haryana, who came to Sunder Nagar (Himachal Pradesh) on posting. During his service tenure in Sundernagar, he purchased some land. As per the sale deed of said land, Shri Narain Singh has recorded his caste as Gujjar. Therefore, his caste has been recorded in the revenue records of Muhal Khilra as Gujjar. The applicant was issued a Scheduled Tribe certificate on the basis of the certificate issued to her father without having disclosed the full facts.
17. As per Para 6.28 (vi) in the OM of the Ministry of Tribal Affairs dated 17.08.2012, a person, who is temporarily away from his permanent place of residence at the time of notification of the Presidential Order applicable in his case, can also be regarded as a Scheduled Tribe, if his tribe has been specified in that Order in relation to his State, but he cannot be treated as such in relation to the place of his temporary residence notwithstanding the fact that the name of his tribe has been scheduled in respect of that State where he has temporarily settled.
18. OM dated 29.03.2007 further provides that a Govt. servant, who has obtained appointment on the basis of false SC/ST/OBC, is to be immediately terminated from service. If he is a probationer or a temporary Government servant, he should be discharged or his services should be terminated. If he has become a permanent Government 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 dimissed from service. In no circumstances should any other penalty be imposed. Therefore, learned counsel for the respondents has strongly pleaded for dismissal of the OA.
19. We have carefully perused the pleadings of the parties as well as the documents submitted by them and have patiently heard learned counsel appearing for both the parties.
20. The facts of the case, stated in a nutshell, are that the applicants father belongs to Gujjar Community, which is placed in the OBC list in his native State of Haryana. He came to Himachal Pradesh where Gujjar community is recognized as Scheduled Tribe. He purchased some land there and he was recorded in the records of revenue as Gujjar belonging to ST in the State of Himachal Pradesh. The applicant was issued an ST certificate on the basis of the certificate of her father so issued. Subsequently, the matter came to light on a complaint. The applicant moved the Court of Competent jurisdiction in Sunder Nagar, Himachal Pradesh wherein his case is pending adjudication. In the meantime, departmental proceeding is initiated against the applicant for obtaining the job of Sub Inspector (Finger Print) in the NCRB on the basis of false caste certificate, though the respondents have been directed vide order dated 18.06.2013 not to proceed further with the report of the departmental inquiry without the permission of this Tribunal.
21. The only point for consideration to our mind here is as to whether pendency of the declaratory Civil Suit before the Court of competent jurisdiction in Sunder Nagar prior to institution of the instant OA will render it infructuous. It is a well recognized principle of law that two remedies cannot be sought at different legal fora for the same cause of action. It is an admitted fact that the applicant had filed the civil suit before the court of competent jurisdiction for declaring her caste Gujjar as ST in State of Himachal Pradesh and the same is pending adjudication. The applicant has submitted that the issue is sub judice before the Civil Court at Sunder Nagar, H.P. wherein the NCRB is also one of the parties.
22. We also find that neither the Administrative Tribunals Act, 1985 nor the CAT (Procedure) Rules, 1987 provide for the Tribunal to adjudicate over the matter where a Civil Suit is already pending before a court of competent jurisdiction for the same cause of action.
23. Rule 4 of the CAT (Procedure) Rules, 1987 provides the procedure for filing the Application. It provides that an Application to the Tribunal shall be presented in Form 1 by the applicant in person or by an agent or by a duly authorized legal practitioner to the Registrar or any other officer authorized in writing by the Registrar to receive the same or be sent by registered post with acknowledgement due addressed to the Registrar of the Bench concerned. Rule 5 thereof provides for scrutiny of an Application to be undertaken by the Registrar that it has been presented under Rule 4 and has been found in order. This Form 1 has altogether 12 column, of which Column No.7 prescribes as under:-
7. Matters not previously filed or pending with any other Court:
The applicant further declares that he had not previously filed any application, writ petition or suit regarding the matter in respect of which this application has been made, before any Court or any other authority or any other Bench of the Tribunal nor any such application, writ petition or suit is pending before any of them.
In case the applicant had previously filed any such application, writ petition or suit, the stage at which it is pending, and if decided, the list of the decisions should be given with reference to the number of Annexure to be given in support thereof.
24. In the instant Application, we find that the applicant has declared as under:-
7.1 That the applicant declares that she has not filed any application, suit or writ before any other court of law in respect of the subject matter of the OA nor such application is pending before any of them.
25. However, in view of the admission regarding filing the Suit before the court of competent jurisdiction in OA, it is clear that the applicant has already filed a suit before the civil court of competent jurisdiction at Sunder Nagar for declaration of her caste Gujjar as Scheduled Tribe in the State of Himachal Pradesh. In the instant case also, along with the reliefs as stated earlier, she has prayed for quashing and setting aside charge-sheet dated 20.09.2012 and directing the respondents not to hold the inquiry till the final outcome of the Civil Suit No.107/2011 pending adjudication at Sunder Nagar, Mandi (Himachal Pradesh). She has also relied upon the decision of this Tribunal in Sukhdev Singh Vs. Govt. of NCT of Delhi in OA No. 2816/2008 wherein it has been held that the judicial verdict would have precedence over decision in departmental proceeding and the subordinate rank would be restored to his status with consequential relief.
26. It is obvious that the papers relating to the Civil Suit have not been placed on record, but it appears from the admission of the applicant that the Civil Suit has been filed before the court of competent jurisdiction for declaration of the caste Gujjar as ST in the State of Himachal Pradesh and that would bring to an end all actions being contemplated by the department, while the OA is also practically to the same effect. The applicant has further prayed for application of order in OA No. 309/2013 in the case of Mithlesh Verma (supra).
27. The above documents lead to the conclusion that the same relief is being agitated at two different legal fora, which is against the general legal principle that the same relief cannot be sought for in two different legal fora. In the case of AMARJIT SINGH KALRA (DEAD) BY L.RS & ORS Vs. SMT. PRAMOD GUPTA (DEAD) BY L.RS. & ORS, 2003(3) SCC 272, the Honble Supreme Court was faced with a similar situation. The Honble Supreme Court was clearly of the opinion that the suit filed at different fora seeking same relief will not sustain. This principle has been further reiterated in Eneron (India) Ltd. & Ors. Vs. Eneron GMBH & Ors., 2014(5) SCC 1. While examining the principle of concurrent jurisdiction, the Honble Supreme Court held as under:-
Issue No. VI/Re: Concurrent Jurisdiction:
127. Having held that the seat of arbitration is in India, in our opinion, the Bombay High Court committed an error in concluding that the Courts in England would have concurrent jurisdiction. Holding that the Courts in England and India will have concurrent jurisdiction, as observed on different occasions by Courts in different jurisdictions, would lead to unnecessary complications and inconvenience. This, in turn, would be contrary to underlying principle of the policy of dispute resolution through arbitration. The whole aim and objective of arbitration is to enable the parties to resolve the disputes speedily, economically and finally. The kind of difficulties that can be caused by Courts in two countries exercising concurrent jurisdiction over the same subject matter have been very succinctly set down by Lord Brandon in Abdin v. Daveu (supra)-as follows:-
In this connection it is right to point out that, if concurrent actions in respect of the same subject matter proceed together in two different countries, as seems likely if a stay is refused in the present case, one or other of the two undesirable consequences may follow: first, there may be two conflicting judgments of the two courts concerned; or secondly, there may be an ugly rush to get one action decided ahead of the other in order to create a situation of res judicata or issue estoppel in the latter.
Lord Diplock said in the same case:
comity demands that such a situation should not be permitted to occur as between courts of two civilised and friendly states"; it would be, he said, "a recipe for confusion and injustice". As Bingham LJ said in Dupont No. 1 the policy of the law must be to favour the litigation of issues only once in the most appropriate forum. The interests of justice require that one should take into account as a factor the risks of injustice and oppression that arise from concurrent proceedings in different jurisdictions in relation to the same subject matter.
28. By application of the case of Sukhdev Singh Vs. Govt. of NCT of Delhi (OA No. 2816/2008), it is further held that Civil Court first approached by the applicant being a prior forum must have precedence over the later forum. Therefore, we hold that the instant OA has been rendered infructuous on account of prior existing Civil Suit No.107/2011. The OA is accordingly dismissed without costs. Interim order dated 18.06.2013 stands discharged.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /lg/