Central Administrative Tribunal - Hyderabad
B. Appa Rao vs Avinash D. Mandvikar And Ors. Reported ... on 13 August, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH HYDERABAD O.A. 1388/2003 Date of order : 13-08-2008 Between: B. Appa Rao, Ex-LHF (OG), Door No. 16-23/2, Old Gajuwaka, Side of N.H-5, Visakhapatnam-26. ... Applicant A N D 1. The Flag Officer, Commanding-in-Chief, Head Quarters, Eastern Naval Command, Naval Base, Visakhapatnam. 2. The Chief General Manager, Naval Armament Depot, Visakhapatnam -9. ... Respondents Counsel for the applicant : Mr. Ch. Sudhakar Babu (Present) Counsel for the respondents : Mrs. K. Rajitha Reddy (Present) C O R A M : THE HON'BLE MRS. BHARATI RAY, MEMBER (J) THE HON'BLE MR. R. SANTHANAM, MEMBER(A) O R D E R
(Per Hon'ble Mrs. Bharati Ray, Member (J) This application has been filed by the applicant seeking for the following relief :
To declare that the applicant is deemed to have been retired from service with effect from 31st August,2003 on the application of voluntary retirement with a consequential direction to the respondents to forthwith pay pension and pensionary benefits.
2. We have heard Mr. Ch. Sudhakar Babu learned counsel for the applicant and Mrs. K. Rajitha Reddy learned counsel for the respondents. We have also gone through the facts of the case and material papers placed before us.
3. It is the case of the applicant that he joined the Navy as Fireman Grade II (C) on 10.05.1976. The applicant on completion of substantial service in the Navy made an application for voluntary retirement for the first time on 09.12.2002 on medical ground. He has not been favoured with any reply to his application. The applicant was thereafter transferred to Naval Armament Depot from Naval Dockyard. As per the intimation of the 2nd respondent the applicant submitted application for voluntary retirement once again on 03.6.2003 but he has not been favoured with any reply to his representation. It is, therefore, the contention of the applicant that immediately after expiry of statutory period, the applicant ceased to attend the office from 01.09.2003 as he has been deemed to have been retired from service as his application for voluntary retirement has been accepted by the respondents. However, since the respondents have not issued any order of voluntary retirement on medical ground the applicant has approached this Tribunal seeking for the aforesaid relief.
4. Respondents in their counter reply have stated that the applicant was issued with a charge memo for production of bogus Scheduled Tribe certificate and an enquiry under rule 14 of CCS (CCA) Rules, 1965 was ordered by the disciplinary authority. Applicant approached this Tribunal earlier in OA No. 472/93 which was dismissed as premature. Thereafter, Inquiry Officer submitted his report with the findings that charges have been proved. It is the contention of the respondents that although the charges have been proved by the Inquiry Officer, since the applicant has claimed another ST certificate purported to have been issued by the Tahsildar, Dimiriguda he was advised to produce the original certificate which he could not produce. It is not in dispute that the disciplinary proceedings are still pending. It is the contention of the respondents that the case could not be finalised in the absence of production of original ST certificate issued by Tahsildar, Dimriguda.
5. It is the contention of the respondents that the applicant has not given his notice of voluntary retirement to the appointing authority as per rule 48A of Central Civil Services (Pension) Rules, 1972. It is also the case of the respondents that since the disciplinary proceeding is pending for disposal as the applicant has not yet produced the original ST certificate, under Rule 48A of CCS (Pension) Rules, notice of voluntary retirement cannot be accepted when a major penalty charge sheet is pending/contemplated against the applicant.
6. Learned counsel for the applicant, on the other hand, submitted in his rejoinder that under Rule 48-A sub clause (2) proviso of CCS (Pension) Rules, since the respondents had not replied to the notice of voluntary retirement submitted by the applicant within the statutory period of time, the applicant shall be deemed to have retired from service voluntarily. In this context he has extracted the above proviso to Rule 48-A which reads as under :
"Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period."
7. It is, therefore, the contention of the applicant that the respondents are not justified in taking other points i.e. pendency of major penalty proceedings. He, therefore, submits that the application deserves to be allowed.
8. Learned counsel for the respondents on instruction submits that the case of the applicant was referred to Collector, Visakhapatnam and the Collector, Visakhapatnam vide letter dated 28.2.89 has informed the Admiral Superintendent, Naval Dockyard, Visakhapatnam that the Mandal Revenue Officer, Koyyuru has reported that the genuineness of caste certificate produced by Sri B. Apparao, has been enquired into and according to the report, nobody with the surname of Boddu has ever lived in Downuru village and that no Kondakapu caste people have resided there. It was further reported that the individual has never resided in Downuru village of Koyyuru Mandal and the certificate is found to be bogus and false and no Tahsildar with that of the signature on the certificate has ever worked in Chintapalli Taluk and the seal affixed is also bogus one. The contends of the letter of Collector, Visakhapatnam, dated 28.2.89 (supra) the copy of which was produced by the learned counsel for th respondents are extracted herein below :
"Sub: Tribal Welfare - S.T. Caste certificates - Production of false ST caste certificate by the officials of Naval Armament Depot and Naval Dockyard - verification-report- Reg.
Ref: 1. Your letter No.7300/SD/MI dt. 12.1.88
2. This office No.11514/85(TN) dt. 18.8.88
3. R.Dis.No.778/88 C dt. 23.12.88 of the M.R.O. Koyyuru I invite your attention to the reference cited. In the reference IIIrd cited the Mandal Revenue Officer, Koyyuru has reported that he enquired about the genuineness of caste certificate of Sri B. Apparao s/o Bangaraiah, employee in your organisation. According to his report nobody with the surname of Boddu has never lived in Downuru village and that no Kondakapu caste people have resided. He further reported that the individual has never resided in Downuru village of Koyyuru Mandal and the certificate stated to be bogus and false certificate and no Tahsildar with that of the signature on the certificate has never worked in Chintapalli taluk and the seal affixed is also bogus one. He finally reported that the certificate of Sri B. Apparao s/o Bangaraiah of Downuru village is found to be false and bogus.
I request you to take action against the individual according to rules. "
9. We, therefore, find that the respondents have duly referred the matter to the competent authority to enquire about the genuineness of the caste certificate produced by the applicant and accordingly the report of the enquiry had been communicated to the respondents concerned through the above letter. We, therefore, find that the applicant's caste certificate has been duly enquired into and on enquiry it is found that the caste certificate produced by the applicant is false and bogus one.
10. In view of the above position, the question that falls for consideration is whether any injustice has been caused to the applicant by the respondents in not accepting his application for voluntary retirement or in other words can the applicant be deemed to have retired voluntarily on completion of notice period of three months.
11. We get the answer of the above question from the decision of Hon'ble Supreme Court in the case of Bank of India and another vs. Avinash D. Mandvikar and ors. reported in 2005 SCC (L&S) 1011 w`-herein the respondent employee obtained appointment in the service on the basis that he belonged to Scheduled Tribe community. The Scrutiny Committee examined the various documents and came to a definite conclusion that the documents were manipulated to present false claim. The Apex Court held that when the clear finding of the Scrutiny Committee is that he did not belong to a Scheduled Tribe, the very foundation of his appointment collapses and his appointment is no appointment in the eye of law and there is absolutely no justification for his claim in respect of the post he usurped, as the same was meant for a reserved candidate. It was also held by the Hon'ble Supreme Court in the above case that the respondent obtained appointment fraudulently. The right to salary, pension and other service benefits are entirely statutory in nature in public service. The respondent obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. The right to salary or pension after retirement flows from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on a false caste certificate. A person who seeks equity must come with clean hand. He, who comes to the court with false claims, cannot plead equity nor would the court be justified to exercise equity jurisdiction in his favour. Equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practicing fraud. Hence, it was held that the contention of the respondent employee that he has put in nearly three decades of service and has about three years to go before retirement is inconsequential.
12. We find that the case in hand is similar to the case before the Hon'ble Supreme Court inasmuch as the caste certificate produced by the applicant herein has been found to be false and bogus in the enquiry conducted by the competent authority when the matter was referred by the respondents to the Collector, Visakhapatnam, and therefore, as per the law laid down by the Apex Court (supra) the very foundation of the appointment of the applicant is collapsed. The appointment of the applicant is not at all an appointment in the eye of law.
13. That being the position, there is no question of voluntary retirement from such appointment. We, therefore, find nothing wrong in the action of the respondents in not replying to his application (notice) seeking voluntary retirement. However, we find no reason to keep the disciplinary proceedings pending for such long time. Final order could be passed without waiting for such a long time for production of the original certificate by the applicant. We find no reason as well to keep the issue pending after the respondents have been intimated by the Collector, Visakhapatnam that the certificate produced by the applicant is false and bogus.
14. In view of the above discussion and the law laid down by the Apex Court, when the very appointment of the applicant is no appointment in the eye of law, the question of voluntary retirement of the applicant does not arise. The OA being devoid of merit is dismissed accordingly with no order as to costs.
(R. SANTHANAM) (BHARATI RAY)
MEMBER(A) MEMBER(J)