Central Administrative Tribunal - Delhi
Shiv Kumar vs Union Of India (Through:-The Secretary ... on 9 September, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.1924/2009
New Delhi this the 9th day of September, 2010
Honble Mrs. Meera Chhibber, Member (J)
Honble Mr. Shailendra Pandey, Member (A)
Shiv Kumar
Ex.Post Graduate Teacher (English)
S/o Shri Babu Lal
R/o Village-Arua, Tehsil-Mont,
District Mathura (U.P.). Applicant
By Advocate: Shri D.N. Sharma.
Versus
1. Union of India (Through:-The Secretary to the
Govt. of India),
Ministry of Human Resources Development),
Kendriya Vidyalaya Sangathan Department,
Shastri Bhawan,
New Delhi.
2. The Commissioner,
Kendriya Vidyalaya Sangathan Department,
18, Institutional Area, Saheed Jeet Singh Marg,
New Delhi.
3. The Assistant Commissioner,
Kendriya Vidyalaya Sangathan Department,
Regional Office,
Sector-J, Aliganj, Locknow.
4. The Principal,
Kendriya Vidyalaya, I.T.I. Road,
Aligarh. ..Respondents
By Advocate: Shri S. Rajappa with Dr. Puran Chand.
ORDER
By Honble Mrs. Meera Chhibber, Member (J) Applicant has challenged order dated 1.8.2005 whereby he has been removed from service and order dated 20.1.2009 whereby his appeal has been rejected.
2. It is stated by the applicant that he had been working in KVS since 15.2.1990. He was served with a charge sheet dated 22.1.2004 (page 29) with the following allegations:-
That the said Shri Shiv Kumar, PGT (English), Kendriiya Vidyalaya, Aligarh while applying for the post of TGT (English) vide application dated 12.3.1989 has submitted a fake caste certificate dated 10.2.1989. That the said Shri Shiv Kumar again submitted a fake caste certificate bearing No.1476 dated 22.8.2003 obtained on the basis of wrong affidavit singed by Notary to establish his caste. Thus the said Shri Shiv Kumar, PGT (English), Kendriya Vidyalaya, Aligarh has committed gross misconduct and violated Rule 3 (1) (iii) of CCS (Conduct) Rules, 1964 which is applicable to the employees of Kendriya Vidyalaya Sangathan.
3. The charge sheet was not supported by any documents so applicant asked for the documents. Relied upon documents were supplied to him by letter dated 17.6.2004 (page 36). The charge was denied by him. He requested the authorities to show him the caste certificate annexed with the application and also to provide him a copy of the preliminary enquiry report so that he may give proper reply but without giving him this opportunity, department proceeded with the enquiry.
4. Even before the Inquiry Officer also, applicant kept requesting that he be allowed to inspect the original documents and he be provided the preliminary enquiry report but without showing him the original documents, Inquiry Officer recorded on 7.10.2004 that the annexures have been compared with the originals thus denying opportunity to the applicant to put forth his defence. Even otherwise enquiry was closed within 2 sittings holding the charge as proved against the applicant which vitiated the enquiry.
5. In response to Inquiry Officers report, applicant gave a detailed representation pointing out the irregularities viz.
(1) BPO and Tehsildar were not examined.
(2) No prosecution witness was examined nor original documents were allowed to be inspected nor any documents were proved.
(3) Retired Officer could not have been appointed as Inquiry Officer.
(4) He was not allowed advocate to defend himself.
6. The disciplinary authority without considering these points removed the applicant from service vide order dated 1.5.2005 and his appeal was also rejected arbitrarily on 20.1.2009 without even considering the long service of 14 years rendered by the applicant with the respondents.
7. Respondents have opposed this OA. They have stated that all the documents were allowed to be inspected, which were asked for by the applicant. He was unnecessarily delaying the matter. Full opportunity was given to the applicant to defend himself but he did not produce any defence witness, therefore, it is not open to the applicant to now say that he was not given opportunity to defend. They have also stated that Full Bench of Tribunal has in the case of Satish Kukreja Vs. KVS already held that retired employees can be appointed as Inquiry Officer. They have thus prayed that the OA may be dismissed.
8. We have heard both the counsel and perused the pleadings as well as records produced by the respondents. Perusal of Inquiry Officers report shows that preliminary enquiry was held on 7.10.2004 when applicant denied the charge and got the date postponed on the ground that he will give the name of his Defence Assistant. In order sheet dated 7.10.2004 it is clearly mentioned as follows:-
The Charged Officer confirmed that the copies of the listed documents Sr.No.01 to 06 as per Annexure-III have been compared with originals and received, hence the inspection work was over.
The order sheet was signed by the applicant and he acknowledged receiving copy of same without any protest, which shows the objection now being taken is only an afterthought. Even otherwise in V.B. Julka Vs. DTC & Another reported in 2004 (2) SLJ page 268 it has been held by Honble High Court of Delhi that one who has signed the letter knows its contents also. In the instant case since the order sheet is duly signed by the applicant without any protest it is not open to the applicant to suggest now that order was passed without showing him the documents, therefore, this contention is rejected. It is relevant to note the charge against the applicant is as follows :
That the said Shri Shiv Kumar, PGT (English), Kendriya Vidyalaya, Aligarh while applying for the post of TGT (English) vide application dated 12.3.1989 has submitted a fake caste certificate dated 10.02.1989. The said Shri Shiv Kumar again submitted a fake caste certificate bearing No.1476 dated 22.8.2003 obtained on the basis of wrong affidavit signed by Notary to establish his caste. Thus the said Shri Shiv Kumar, PGT (English), Kendriya Vidyalaya, Aligarh has committed gross misconduct and violated rule 3 (1)(iii) of CCs (Conduct) Rules, 1964 which is applicable to the employees of Kendriya Vidyalaya Sangathan.
The statement of imputation is as follows:
That the said Shri Shiv Kumar, PGT (English), Kendriya Vidyalaya, Aligarh while applying for the post of TGT (English) vide application dated 12.03.89 has submitted a fake caste certificate dated 10.02.89, to consider his candidature for the vacancy reserved for SC community on the basis of which he has been selected and offered the post of TGT (English) in Kendriya Vidyalaya Sangathan vide Kendriya Vidyalaya Sangathan, Regional Office Delhi order No.F.16-5/90 dated 05.02.90. That the said Shri Shiv Kumar was asked to explain as to why disciplinary action should not be taken against him for submission of fake caste certificate vide this office memorandum No.10-25/2001-KVS (LR)/Vig./6096 dated 08.08.2003. In response to the above memorandum Shri Shiv Kumar has again submitted that he actually belongs to SC community and the caste certificate submitted by him at the time of applying for the post of TGT (English) is genuine and in support of which statement he has submitted another certificate No.1476 dated 22.08.2003 signed by Tehsildar, Mant, Mathura. The District Magistrate, Mathura was requested to verify the genuineness of certificate No.1476 dated 22.08.2003 submitted by the said Shri Shiv Kumar. In pursuance to the request made by this office to District Magistrate, the matter was enquired by the competent authority and Tehasildar, Mant, Mathura vide his notification No.Memo-49/Ra.Lee/2003 dated 19/26.09.2003 addressed to the said Shri Shiv Kumar and copy inter-alia endorsed to this office confirmed that the said Shri Shiv Kumar obtained another fake caste certificate bearing No.1476 dated 22.08.2003 by submitting wrong affidavit signed by Notary. The Tehasildar, Mant, Mathura vide his said notification declared the caste certificate No.1476 dated 22.08.2003 as illegal and warned not to use the same for any purpose otherwise legal action shall be taken. Thus the said Shri Shiv Kumar, PGT (English), Kendriya Vidyalaya, Aligarh has committed gross misconduct and violated rule 3(1)(iii) of CCS (Conduct) Rule-1964 applicable to the employee of Kendriya Vidyalaya Sangathan. There were 6 relied upon documents with the charge-sheet, viz. (i) Application No.83723 dated 12.03.1989 given by Shri Shiv Kumar himself for the post of TGT (English), Kendriya Vidyalaya, Aligarh; (ii) Caste certificate dated 10.2.1989 submitted by the applicant himself; (iii) Caste Certificate No. 1476 dated 22.8.2003 submitted again by the applicant; (iv) Letter No. 60/203 dated 31.10.2003 issued by Tehsildar Mant, District Mathura; (v) Affidavit dated 21.8.2003 given by the applicant himself to the Tehsildar, Mant; and (vi) Memo No.49/Ra.Lee/2003 dated 19/26.9.2003 issued by Tehsildar Mant, Mathura. Out of above 6 documents, 4 documents were submitted by none else than the applicant himself, namely, (i) Application No.83723 given for the post of TGT dated 12/3/1989. In this application, applicant had declared himself as SC in Col.2; (ii) Caste certificate dated 10.2.1989 was submitted by the applicant at the time of his appointment wherein he is shown to be belonging to SC by the Tehsildar Mant, District Mathura and his caste is shown as Jatav. This certificate was issued on the report of Kanangu; (iii) Caste certificate dated 22.8.2003 again submitted by the applicant himself issued by Tehsildar Mant, Mathura wherein he is again shown as belonging to SC and his caste is shown as Jatav; (iv) Affidavit dated 21.8.2003 was submitted by the applicant before Tehsildar, Tehsil Mant., Mathura which reads as under:-
Therefore, out of 6 documents which were relied upon for proving the charge against the applicant, 4 were submitted by the applicant himself, therefore, he is expected to know those documents. As far as letter dated 26.9.2003 issued by Tehsildar Mant, Mathura is concerned, it reads as under:-
By this letter applicants caste certificate was cancelled and this letter is addressed to the applicant, therefore, it is not a new document. He was aware of it. Letter dated 31.10.2003 was written by Tehsildar to the Assistant Commissioner for forwarding the affidavit submitted by the applicant, therefore, all these documents were known to the applicant. The contention raised by the applicant is, therefore, without any merit.
9. Counsel for the applicant had also submitted that preliminary enquiry report was not given to him but it has already been held by Honble Supreme Court in Narayan Dattatraya Ramteerthakhar Vs. State of Maharashtra and Others reported in 1997 (1) SCC 299 as follows:-
The preliminary enquiry has nothing to do with the enquiry conducted after the issue of the charge-sheet. The former action would be to find whether disciplinary enquiry should be initiated against the delinquent. After full-fledged enquiry was held, the preliminary enquiry had lost its importance.
10. In Pandit D. Aher Vs. State of Maharashtra reported in 2007 (1) SCC 445 in which the contention was that enquiry proceedings stood vitiated due to non-supply of preliminary enquiry report, it was held by Honble Supreme Court as under:-
It is also not in dispute that a departmental proceeding was initiated and the appellant was found guilty of commission of the alleged misconduct therein. A finding of fact has been arrived at that a copy of the inquiry report was supplied to him. A copy of the document which has not been relied upon, is not required to be supplied to a delinquent officer. The documents which are required to be supplied are only those whereupon reliance has been placed by the Department.
11. In the instant case also the preliminary enquiry report was not relied upon. The documents which were relied upon were very much on record and were shown to the applicant. In view of the above, this contention is without any merit. The same is accordingly rejected.
12. Counsel for the applicant had next argued that enquiry was concluded in 2 days without affording him an opportunity to engage a defence assistant. Perusal of the records shows that even this contention is wrong because a number of adjournments were given by the Inquiry Officer to give opportunity to the applicant to defend himself but he did not avail the same. In order to illustrate this, a few dates are important. On 07.10.2004 proceedings were adjourned for 28.10.2004. On 28.10.2004, applicant sent his medical. Even though medical was not received on 28.10.2004, yet proceedings were adjourned by the Inquiry Officer for 24.11.2004 and fresh summons were also issued to the applicant, yet he did not appear on 24.11.2004 nor sent any intimation. In spite of it, the IO again adjourned the proceedings for 5th and 6th January, 2005 in order to provide an opportunity to the applicant to defend himself. Applicant did not appear on 5.1.2005 also. He ultimately appeared on 6.1.2005 and gave an application stating therein that he would face the enquiry alone without any defence assistant. From the above it is clear that full opportunity was given to the applicant to defend himself but he did not avail the same. It is, therefore, not open to the applicant to complain now that he was not allowed the defence assistant. Moreover the applicant did not produce any defence witness and did not even give any answer to the questions put by the Inquiry Officer.
13. In Nagar Palika, Nataur Vs. U.P. Public Services Tribunal, Lucknow and Others reported in 1998 (2) SCC 400 it has been held by Honble Supreme Court that in a departmental enquiry principles of natural justice cannot be said to be violated if opportunity was afforded and utilized by the charged official. The above contention is, therefore, rejected.
14. Counsel for the applicant next contended that since the Tehsildar was not produced to prove his letter, charge could not have been proved. It is relevant to note that the letter dated 31.10.2003 is addressed to the applicant as well as to the Assistant Commissioner, Regional Office, Lucknow KVS both, therefore, applicant was fully aware that his caste certificate has been cancelled by the Tehsildar. The document at Sl.No.4 is a letter dated 31.10.2003 written by Tehsildar Mant, to the Assistant Commissioner, Regional Office, Lucknow KVS for sending the affidavit sworn by the applicant on the basis of which caste certificate was issued to him. This affidavit is also a relied upon document. Since these letters were written in official capacity and applicants caste certificate was already cancelled, the onus to prove that be belonged to SC had shifted on the applicant.
15. In Director General, Indian Council of Medical Research and Others Vs. Dr. Anil Kumar Ghosh and Another reported in 1998 (7) SCC 97 it has been held by Honble Supreme Court that when genuineness of a document produced during enquiry is not in dispute, the authors need not be examined.
16. Similarly in Orissa Mining Corporation and Another Vs. Ananda Chandra Prusty reported in JT 1996 (10) SC 571 it was held as under:-
there is no such thing as an absolute burden of proof, always lying upon the department in a disciplinary inquiry. The burden of proof depends upon the nature of explanation and the nature of charges. In a given case the burden may be shifted to the delinquent officer, depending upon his explanation.
17. Since the charge against the applicant was he had submitted false caste certificate and the caste certificate had been cancelled by the same authority who had issued it, onus had shifted on the applicant in these circumstances, therefore, this contention is also rejected.
18. Even otherwise vide letter dated 31.10.03 Tehsildar had only sent a copy of the affidavit submitted by the applicant to the Tehsildar. Affidavit given by the applicant to Tehsildar or order of cancellation were not disputed by the applicant, therefore, it was not necessary to call them as witness specially when these letters were written by one authority to the other in his official capacity after verifying the correctness of applicants certificate stated to have been issued by the Tehsildar. We have no reason to doubt the correctness of these letters. This letter had sent the affidavit of the applicant wherein he had stated on oath that he belongs to Jatav caste which is a Scheduled Caste. However, this was found to be incorrect. From above narration of facts, following points emerge out.
(1) That applicant had applied for the post of TGT in KVS as a SC candidate by submitting a certificate to show that he belonged to Jatav caste. (2) Tehsildar Mant, Mathura in his letter dated 26.9.2003 had clarified that after verifying the facts it has come to their knowledge that applicants caste is Jogi but he had given a wrong affidavit duly nortarised showing himself belonging to the Jatav caste. (3) It was on the basis of false affidavit that the caste certificate was got fraudulently issued from the Tehsildar in 2003. (4) After these facts came to notice, his caste certificate dated 22.8.2003 was cancelled with immediate effect under due intimation to the applicant and he was warned that if he used the said certificate again, appropriate legal proceedings would be initiated against him in accordance with law, meaning thereby that the Tehsildar had already cancelled the certificate produced by the applicant showing him as belonging to SC category. In these circumstances, the onus had shifted on the applicant to show that he indeed belonged to Jatav caste and belonged to SC as was stated by him at the time of obtaining appointment in KVS as a TGT.
19. We have already noted above that full opportunity was given to the applicant to defend himself by the Inquiry Officer but he neither produced any defence evidence nor answered the basic questions put by the Inquiry Officer. On the contrary, he had stated that he would explain the position in his defence statement. Of course, applicant could not give any defence in support of his claim even in the defence statement. It is thus clear that applicant could not prove that he belonged to SC category. Since the charge stood proved against the applicant, he was rightly removed from service.
20. On the basis of letter written by the Tehsildar, there can be no 2nd opinion that this a very serious charge. When a person obtains appointment in Government service on fake caste certificate, it amounts to a fraud on the entire reserved category as a whole because he deprives a genuine SC candidate from getting the appointment. While dealing with these kind of cases, Honble Supreme Court has gone to the extent of holding that where an appointment has been acquired by practicing fraud or deceit, such an appointment is no appointment in law, and in such a situation, Article 311 of the Constitution is not attracted at all.
21. In R. Vishwanatha Pillai Vs. State of Kerala and others reported in 2004 (2) SCC 105 Honble Supreme Court had an occasion to deal with such a case. It was held as under:-
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 eye of the law. He cannot claim a right to the post as he had usurped the post meant for a reserved category 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 Article 311 and cannot be considered to be a person who holds a post within the meaning of Article 311. Where an appointment in a service has been acquired by practicing fraud or deceit, such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all.
The plea to substitute the order of dismissal by an order of compulsory retirement or removal from service to protect the pensionary benefits of the appellant too has no substance. 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 entered the service by producing a false caste certificate and obtained appointment for the post meant for a Scheduled Caste, thus depriving the genuine Scheduled Caste candidate of appointment to that post, does not deserve any sympathy or indulgence of the Supreme Court. A person who seeks equity must come with clean hands. 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.
22. A similar view was taken by the Honble Supreme Court in Regional Manager, Central Bank of India Vs. Madhulika Guruprasad Dahir & Others reported in 2008(10) SCALE 431. In the said case respondent was appointed to the post of Clerk in the Bank against the post reserved for ST. She had claimed to be belonging to ST on the basis of a caste certificate. On verification, the scrutiny committee found that the respondent did not belong to ST. Accordingly, her caste certificate was cancelled whereupon services of the respondents were terminated on the ground that the tribal claim had been invalidated. She challenged her termination on the ground that she had already put in 20 years of long service. Order of termination was quashed by the Honble High Court whereupon the matter was carried to the Honble Supreme Court. It was held as follows:-
The plea regarding rendering of services for a long period has been considered and rejected in a series of decisions of this Court and we deem it unnecessary to launch on exhaustive dissertation on principles in this context. It would suffice to state that except in a few decisions, where the admission/appointment was not cancelled because of peculiar factual matrix obtaining therein, the consensus of judicial opinion is that equity, sympathy or generosity has no place where the original appointment rests on a false caste certificate. A person who enters the service by producing a false caste certificate and obtains appointment for the post meant for a Scheduled Caste or Scheduled Tribe or OBC, as the case may be, deprives a genuine candidate falling in either of the said categories, of appointment to that post, does not deserve any sympathy or indulgence of this Court. He who comes to the Court with a claim based on falsity and deception cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. An act of deliberate deception with a design to secure something, which is otherwise not due, tantamounts to fraud. 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.
Fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine.
Having considered the matter in the light of the afore-stated legal position, in our judgment, the decision of the High Court is untenable. As noted supra, the employee having accepted the finding of the Scrutiny Committee, holding that the caste certificate furnished by the employee was false, the very foundation of her appointment vanished and her appointment was rendered illegal. Her conduct renders her unfit to be continued in service and must necessarily entail termination of her service. Under these circumstances, there is absolutely no justification for her claim in respect of the post merely on the ground that she had worked on the post for over twenty years. The post was meant for a reserved candidate but she usurped the same by misrepresentation and deception. In our opinion, the fact that caste certificate was referred to the Scrutiny Committee for verification after ten years of her joining the service and a long time was taken by the Scrutiny Committee to verify the same is of no consequence inasmuch as delay on both the counts does not validate the caste certificate and the consequent illegal appointment.
23. As back as in 1995 in the case of Union of India and Others Vs. M. Bhaskaran & Others reported in 1995 Suppl. 4 SCC 100, it was held as follows:-
The respondents have admittedly snatched employment in Railway service, maybe of a casual nature, by relying upon forged or bogus casual labourer service cards. The unauthenticity of the service cards on the basis of which they got employment is clearly established on record of the departmental enquiry held against the employees concerned. Consequently, it has to be held that the respondents were guilty of misrepresentation and fraud perpetrated on the appellant-employer while getting employed in railway service and had snatched such employment which would not have been made available to them if they were not armed with such bogus and forged labourer service cards. Once the fraud of the respondents in getting such employment was detected, the respondents were proceeded against in departmental enquiries and were called upon to have their say and thereafter have been removed from service. Such orders of removal would amount to recalling of fraudulently obtained erroneous appointment orders which were avoided by the employer-appellant after following the due procedure of law and complying with the principles of natural justice. Therefore, even independently of Rule 3(1)(i) and (iii) of the rules, such fraudulently obtained appointment orders could be legitimately treated as voidable at the option of the employer and could be recalled by the employer and in such cases merely because the respondent-employees have continued in service for number of years on the basis of such fraudulently obtained employment orders cannot create any equity in their favour or any estoppel against the employer.
24. From above judgments, it is clear that the consistent view taken by the Honble Supreme Court in such matters is that if a person gets appointment on a false caste certificate which is already cancelled by the authorities, then such a person has no right to continue in service nor can such a person claim benefit under Article 311 of the Constitution. Such a person needs no sympathy or equity from the court on the ground that he has worked for long years, hence such cases need to be dismissed.
25. In the instant case also, the applicants caste certificate was already cancelled by the Tehsildar in clear words by stating that it was issued on the basis of a false affidavit submitted by the applicant. He belonged to Jogi caste and was not Scheduled Caste. He was in fact warned not to use it again. Admittedly, the applicant had obtained appointment as a SC candidate, therefore, he has no right to continue in the service. We find no merit in the OA. The same is accordingly dismissed. No costs.
(SHAILENDRA PANDEY) (MRS. MEERA CHHIBBER) MEMBER (A) MEMBER (J) Rakesh