Central Administrative Tribunal - Delhi
Suresh Prasad vs Secretary on 11 October, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 1368/2012 New Delhi this the 11th day of October, 2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MS. JAYATI CHANDRA, MEMBER (A) Suresh Prasad, R/o Block, Gali No. 14/B, Kamal Vihar, Kamal Pur, West Sant Nagar, Burari, Delhi-110084. Applicant.
(By Advocate Shri A.S.N. Murthy with Shri A.K. Bhakt) Versus
1. Secretary, Department of Personnel & Training, North Block, New Delhi-110001.
2. Director, Central Bureau of Investigation, New CBI Building, Opp: SCOPE Building, CGO Complex, Lodi Road, New Delhi-110003.
3. Deputy Director (Admn), CBI HQ, New CBI Building, Opp: SCOPE Building, CGO Complex, Lodi Road, New Delhi-110003. Respondents.
(By Advocate Shri Krishan Kumar) O R D E R (ORAL) Shri G. George Paracken:
The applicant is aggrieved by the impugned Memorandum No. DPPERSII2007/896/C-14011/6/06 dated 19.03.2007 proposing to hold an inquiry against him under Rule 14 of the CCS (CCA) Rules, 1965. The statement of article of charge framed against him is as under:
Shri Suresh Prasad S/o Sh. Machhan Prasad, Head Clerk, CBI Head Office, Policy Division, North Block, New Delhi, who belonged to Nonia Caste, which comes under OBC category dishonestly, obtained a fake Caste Certificate dated 05-02-82 in his name, under the forged seal and signatures of Zila Padadhikari, Saran (Chapra), showing him of Kharia caste and used this caste certificate as genuine, knowing it to be a fake and forged and on the basis of which, secured employment in Central Bureau of Investigation on 04-09-1989, against the vacancy reserved for Scheduled Tribe candidate.
Shri Suresh Prasad by his above acts failed to maintain absolute integrity and exhibited conduct becoming of a public servant and, thereby, violated Rule 3 (1) (i) of CCS (Conduct) Rules, 1964. He has also been served with the statement of imputation of misconduct or misbehaviour in support of the articles of charge and the same is also reproduced as under:
Shri Suresh Prasad S/o Sh. Machhan Prasad, R/o Vill. Sarmi PO: Sarmi Bara Mahajitpur, Distt. Chapra (Saran) Bihar, who does not belong to Scheduled Tribe Community, got employment in Central Bureau of Investigation on 04-09-1989, on the basis of a fake/forged caste certificate falsely claiming that he belonged to `Kharia Scheduled Tribe.
Shri Suresh Prasad, presently working as Head Clerk in Central Bureau of Investigation, Policy Division, HO, New Delhi, with the intention to cheat the Govt. of India, dishonestly and knowingly obtained a fake caste certificate dated 05-02-1982, purported to have been issued in his name by the office of Zila Padadhikari, Saran (Chapra), Bihar, falsely showing him belonging to `KHARIA caste and deliberately misused it as genuine during the year 1987, while applying for the post of Lower Division Clerk to Staff Selection Commission against the reserved vacancy of Scheduled Tribe candidate. On the basis of this fake and forged caste certificate, he was selected and nominated by Staff Selection Commission for employment in the Central Bureau of Investigation against the reserved vacancy of Scheduled Tribe. Thus, Shri Suresh Prasad cheated the Govt. of India knowingly, by using the fake caste certificate to get the employment in Central Bureau of Investigation on 01-09-1989, depriving the genuine candidates of Scheduled Tribe.
The District Authorities never issued any caste certificate in the name of Shri Suresh Prasad and that `Kharia caste comes under Scheduled Tribe category in Bihar but members belonging to this caste do not reside in the whole Saran (Chapra) District of Bihar. It has further been disclosed that the Suresh Prasad belongs to `Nonia Caste, which is notified as OBC in Bihar State.
The certificate (Scheduled Tribe) issue Register for the relevant period maintained in the office of District Welfare Officer, Saran, which is the concerned authority for issuing such certificates, does not bear any entry about issuance of certificate in question. Apart from this, Khata Sankhya-18 of Khatiyan of Sahajit Pur area, maintained by Revenue department of State Govt. and Below Poverty Line list of Sarmi village showing the caste status of family of Suresh Prasad as other Backward Classes, disclose that Shri Suresh Prasad does not belong to Kharia Caste as falsely claimed by him in the forged caste certificate of Scheduled Tribe. Therefore, claim of Shri Suresh Prasad about being Scheduled Tribe candidate, knowingly, by using the forged caste certificate mentioning him, as `Kharia has not been found genuine.
The elder brother of Shri Suresh Prasad, namely, Shri Bhagwan Prasad is employed in Public Works Department at PWD Division-21 Delhi as Beldar and he has been employed in PWD as a general caste candidate.
The above facts and circumstances clearly show that Shri Suresh Prasad has committed gross misconduct.
2. Aggrieved by the aforesaid action on the part of the respondents, he has filed this O.A seeking the following reliefs:
(i) Quash and set aside the Departmental Proceedings initiated by 2nd respondent by issue of Charge Memorandum dt. 19.03.2007 since at the time of appointment the 2nd respondent has caused verification done of the `attestation form from the concerned DM, Saran, Bihar wherein the caste of the applicant mentioned as `Kharia and nothing was found adverse against the applicant after verification or alternatively order the respondents to keep the departmental proceedings initiated by 2nd respondent by issue of Charge Memorandum dt. 19.03.007 in abeyance till conclusion of the criminal proceedings pending before the CMM Tist Hazari, Delhi.
(ii) Pass any other order or orders as may be deemed just and proper in the facts and circumstances of the case.
3. The applicants contention is that the aforesaid action of the respondents is illegal, arbitrary and unconstitutional in view of the fact that the first respondent on his initial appointment as LDC in CBI has got verified all the attested photo-copies of the qualifications/Scheduled Tribe certificates, etc. and the `attestation form wherein his caste is mentioned as `Kharia and submitted by him in accordance with the Central Government instructions on the subject and nothing was found adverse against him. Secondly, he has submitted that a criminal case has also been initiated against him and the charge in both the criminal case as well as in the departmental proceedings is identical based on the same set of facts with identical witnesses and identical documents without there being an iota of difference involving common question of law and the same set of facts would be required to prove the departmental proceedings case and the criminal case on the basis of the same evidence. In this regard, he has relied upon the judgment of the Apex Court in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. & Anr. (JT 1999 (2) SC 4681) wherein it has been held that while departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately, if the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceeding till the conclusion of the criminal case.
4. The applicant has also submitted that the High Court of Judicature, Patna, in its judgment dated 20.04.2010 in CWJC No. 12334 of 2009, considered the status of Kharia/Nonia caste in State of Bihar. In the aforesaid writ petition, the applicant herein was also one of the petitioners. Their grievance was that their ancestors were tribals and during the course of their rehabilitation, they were brought to the planes and they do not originally belong to the planes of Bihar but they were staying in different parts of the State at different times. According to the petitioners therein, they were granted Scheduled Tribe certificates by district authorities and other authorities as Kharia which is a duly notified Scheduled Tribe caste in State of Bihar. However, sometime back, there were complaints regarding the petitioners and similarly placed persons who were accused of securing employment in the Govt. of NCT of Delhi on the basis of their Scheduled Tribe certificates without verifying their genuineness. The Delhi High Court entrusted the matter to the Central Bureau of Investigation (CBI) to investigate. The CBI made inquiries from the District Magistrate-cum-Collector, Siwan, the district which earlier comprised of Gopalganj and Chapra as well which are now independent districts, whether Kharia tribe lived in those districts. However, the obvious answer was in negative as the members of the tribe were not resident of those districts and they were from the hills and in the course of rehabilitation, starting from the British time, they were brought to different areas. According to the High Court of Judicature, Bihar, in spite of the aforesaid factual position, the authorities, in an unmindful manner, are taking coercive steps without going into the fact whether the certificate obtained was forged or not. The High Court has, therefore, directed that till it is found that the Scheduled Tribe certificates are forged and the same are not cancelled in due course after enquiry by the competent authority, no coercive steps should be taken against the petitioners or members of petitioners of petitioners association claiming the status of Scheduled Tribe, as such, provided the investigation and/or departmental proceedings would continue in accordance with law. The High Court also left it to the Government to take a formal decision to treat Kharia/Nonia as a Scheduled Tribe at an early date so that the genuine claims are not denied.
5. The respondents have filed the reply stating that the applicant got employment in CBI on 04.09.1989 on the basis of a fake/forged caste certificate falsely claiming that he belonged to `Kharia Scheduled Tribe. On the basis of some source information that the applicant did not belong to Scheduled Tribe community and he got employment with the CBI on the basis of a fake/forged caste certificate, a criminal case vide RC-4 (S)/2006/CBI/SCR-III/ND under Section 420, 468 and 471 IPC was registered in SCR.III Branch of CBI, New Delhi on 11.09.2006. They have also stated that the allegations against the applicant are that the applicant, who is presently working as Head Clerk in CBI, Police Division, obtained a fake caste certificate of `Kharia caste purported to have been issued in his name by the office of Zila Padadhikari, Saran (Chapra) on 05.02.1982, on the basis of which he got employment in CBI against the reserve vacancy of Scheduled Tribe. He, thereby, cheated Govt. of India (CBI) and got employment, depriving the genuine candidates of Scheduled Tribe community. They have also stated that on inquiry it was found that the applicant belongs to backward OBC and he does not belong to Kharia tribe.
6. The respondents counsel has also submitted that the departmental inquiry has started way back in the year 2006 and it is now completed in all respects and findings of the Inquiry Officer are now with the disciplinary authority for passing final orders. They have also stated that there is no bar in holding the departmental inquiry while criminal case on the same set of facts is going on. The learned counsel for the respondents has also relied upon a recent order of a co-ordinate Bench of this Tribunal in OA 3011/2011 N.M. Sehrawat Vs. Union of India & Anr. decided on 09.05.2012 wherein the following orders have been passed:
7. Heard. During the course of the arguments, the learned counsel for the applicant laboriously tried to point out that the list of witnesses in the departmental enquiry and the documents sought to be produced in the departmental enquiry overlap with those in the criminal cases pending against him. The learned counsel for the applicant stated that through an internal Circular dated 16.02.2010, and previous internal Circular dated 19.11.1990, the respondent/CBI itself had prescribed that if the charge sheet is filed in the criminal case on the same facts and allegations, the departmental penalty proceedings may not be initiated, or, if initiated, may be kept in abeyance.
8. It is seen that while Circular dated 19.11.1990 is a general Circular, the internal Note dated 16.02.2010 relied upon by the learned counsel for the applicant relates to a particular disciplinary enquiry proceedings for major penalty against another official, Sh. D.K. Srivasatava, Dy. Legal Adviser, CBI. In both these cases emphasis had been laid upon the same set of facts and allegations being involved in both the prosecution through the criminal case as well as the simultaneous departmental action initiated. It was stated that any contradictions which may emerge during disciplinary enquiry may benefit the accused in the criminal case, and, therefore, it had been suggested that it would be appropriate to expedite the criminal case, and the disciplinary enquiry can be stayed till the examination of the material witnesses in the criminal case is over.
9. The learned counsel for the applicant vehemently argued that the charge as framed in the present disciplinary enquiry, through Annexure A-2 dated 14.12.2009, also completely overlapped the facts as appreciated by the learned Special Judge while taking cognizance of the involvement of the applicant herein in two criminal cases out of the four filed against him, as, he said, was clear from the order of the learned Special Judge dated 11.5.2011. In support of his contentions the learned counsel for the applicant had relied upon the judgment dated 28.4.2010 of this Principal Bench in OA NO.2666/2009 Dilip Kumar Thakur Vs. Central Bureau of Investigation through the Director & Ors., in which, after appreciating the facts constituting the evidence and allegations in the disciplinary proceedings, the Bench had ordered that it will be in the fitness of things to stay the disciplinary proceedings till common prosecution witnesses in both the proceedings are examined and cross examined by the applicant in the criminal trial, and that, thereafter, it shall be open for the respondents to resume the departmental enquiry proceedings, and let the law take its own course.
10. On the other hand, learned counsel for the respondents cited the judgment delivered by the Honble Apex Court in State Bank of Bikaner and Jaipur Vs. Nemi Chand Nalwaya AISLJ (IX)-2011 (3) 127 and the orders of the Honble Delhi High Court dated 23.08.2004 in n Writ Petition (Civil) No.565/2004, 593/2004 and 2236/2004 in Jainder Singh Tomar and Others Vs. Municipal Corporation of Delhi and Ors. as well as the CBI internal Circular No.3A/2007 dated 16.7.2007. The Honble Apex Court had in paragraph-9 of the judgment cited (supra) held as follows:-
9. The fact that the criminal Court subsequently acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceedings invalid nor affect the validity of the finding of guilt or consequential punishment. The standard of proof required in criminal proceedings being different from the standard of proof required in departmental enquiries, the same charges and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving benefit of doubt in the criminal proceedings. There is mere so when the departmental proceedings are more proximate to the incident, in point of time, when compared to the criminal proceedings. The findings by the criminal Court will have no effect on previously concluded domestic enquiry. An employee who allows the findings in the enquiry and the punishment by the Disciplinary Authority to attain finality by non-challenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal Court has acquitted him.
11. In case of Jainder Singh Tomar (supra) the Honble High Court of Delhi has held as follows:-
10. I have heard counsel for the parties and noted the facts, as above and the legal principles, as enunciated in Capt. M.Paul Anthonys case. The incident, as noted earlier, is of 20.10.2000. Pursuant to the directions given by the learned Additional District Judge for summoning of the bribe givers, the criminal trial is likely to take much more time. For maintaining probity and discipline and for administrative efficiency, it is desirable that any employee against whom proceedings for misconduct are to be initiated, the same is done at the earliest. In case the charges are not well founded then the employees honour should be vindicated at the earliest, rather than remaining in cloud till the criminal trial is over. Moreover, it is well settled that there is no bar on both proceedings to go on simultaneously. The advisability of staying the disciplinary proceedings has been confined to cases, where identical facts are involved and the charges against the delinquent employees are of a grave nature, involving complicated questions of law and facts. In the instant cases, there are no complicated questions of fact or law involved. Therefore, simple cases of demanding and receiving illegal gratification. Moreover, the criminal trial is likely to be delayed for the reasons noted earlier. In these circumstances, there is no ground made out for stay of the departmental proceedings. Reference may also be usefully made to a decision of a learned Single Judge of this Court in Tarlok Singh Vs. MCD (W.P.(C ) No.4926/2003), decided on 8.4.2004, where he took judicial notice of the fact that criminal prosecutions under the Prevent of Corruption Act on account of large number of cases have an average span of 7-8 years of trial in Delhi and in the said circumstances, he declined to stay the departmental enquiry. I am in agreement with the above approach. These are also cases, registered under the Prevention of Corruption Act. The criminal trial has hardly commenced in right earnest.
12. It was also stated that the detailed Circular dated 16.7.2007 had been issued after distilling the findings of the Honble Apex Court in many cases related to simultaneous progress being allowed for both the criminal case and the departmental proceedings.
13. We have given our anxious consideration to the facts of this case. Through our interim orders dated 23.08.2011, the disciplinary proceedings had been stayed, and since the interim order has never been modified thereafter, the departmental enquiry against the applicant is at a stand still as on today. The stage of the progress in the criminal case pending against the applicant in the Court of the learned Special Judge, CBI, has also not been brought on record by either of the parties. Therefore, we have a situation where charges have been framed against the applicant in a criminal case after an appreciation of the evidence gathered against him in regard to the criminal offence under the Prevention of Corruption Act, but in regard to his misconduct as a Government employee, the departmental proceedings had been stayed due to Interim Orders of this Tribunal.
14. There is ample case law on this subject, and in a catena of judgments, the Honble Apex Court has held that there is no bar on the criminal case and the departmental enquiry proceedings to go on simultaneously if both are not based upon exactly the same set of facts, and the applicant is not forced to disclose his defence in the criminal case during the course of the departmental enquiry. The Apex Court judgments have also emphasized upon the fact that while the criminal case relates to the criminal aspect of an offence, the departmental enquiry relates to the civil aspect of misconduct of the employee concerned in relation to that offence, and also that the standard of proof in a departmental enquiry of preponderance of probabilities is not the same as in the case of rigorous standard of proof, beyond reasonable doubt, which has to be applied before the criminal Court in the criminal case.
15. Further, in a departmental enquiry, the Presenting Officer produces his witnesses and record, whom the applicant can cross-examine and verify the documents, and if the delinquent Government official produces his own witnesses, they can be cross-examined by the Presenting Officer. However, both the examination-in-chief, and the cross examination of the witnesses produced by the Presenting Officer as well as the Defence Witnesses produced by the delinquent official or his Defence Assistant, would only be required in their deposition (both in Examination in-Chief as well as the cross examination of witnesses) to stick only to the misconduct aspect, and the civil liability of the delinquent Government official under the CCS (Conduct) Rules. It is never the case that the criminal liability of an act of a delinquent government official is examined in a departmental enquiry through the Examination-in-Chief or cross examination of witnesses from either side.
16. It is in this context that perhaps the departmental authorities have to be more worried about contradictions emerging out of the depositions of the Prosecution Witnesses and Defence Witnesses in the departmental enquiry, and affecting the fate of the criminal case adversely, rather than the delinquent official getting worried about any such contradictions arising in a departmental enquiry affecting his case in the Criminal Court, as such contradictions can only benefit his case in the criminal Court, and not harm him. This aspect has been clearly borne out by the internal Advice dated 16.2.2010 in the case of the disciplinary proceedings for major penalty against the said Shri D.K. Srivastava, which was produced by the learned counsel for the applicant himself, in which an apprehension was expressed that any such contradictions whatsoever which may emerge may benefit the accused/delinquent, and, therefore, a cautious suggestion had been made for the Competent Authority/Disciplinary Authority to consider staying the disciplinary proceedings in that case till the examination of material witnesses in the concerned Criminal Court was over. This aspect of the delinquent possibly benefiting from a quicker conclusion of the disciplinary enquiry against him was not considered by the Honble Apex Court when it laid down the five findings at the end of the judgment in the case of Capt. M.Paul Anthony Vs. Bharat Gold Mines Ltd. & Another JT 1999 (2) SC 456.
17. In the instant case no complicated questions of law and facts are involved, and it appears that the instant case is covered by the conclusion in Para-22 (v) of the judgment of the Honble Apex Court in Capt. M. Paul Anthony (supra), which had laid down the law of the land stated as follows:-
22(i)Not reproduced here
(ii) Not reproduced here
(iii) Not reproduced here
(iv) Not reproduced here
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.
18. The Honble Apex Court had in the case of Union of India and Another Vs. Ashok Kacker 1995 supp (1) SCC 180 also laid down the law that Courts and Tribunals should be loathe to interfere with the process of conduct and conclusion of disciplinary enquiry, and ought not to stay the enquiries unless there are compelling reasons to do so. The Honble Apex Court had frowned upon the Courts and Tribunals staying the very conduct of the disciplinary enquiry itself by observing as follows:-
4. Admittedly, the respondent has not yet submitted his reply to the charge-sheet and the respondent rushed to the Central Administrative Tribunal merely on the information that a charge-sheet to this effect was to be issued to him. The Tribunal entertained the respondents application at that premature stage and quashed the charge-sheet issued during the pendency of the matter before the Tribunal on a ground which even the learned counsel for the respondent made no attempt to support. The respondent has the full opportunity to reply to the charge-sheet and to raise all the points available to him including those which are not urged on his behalf by learned counsel for the respondent. In our opinion, this was not the stage at which the Tribunal ought to have entertained such an application for quashing the charge-sheet and the appropriate course for the respondent to adopt is to file his reply to the charge-sheet and invite the decision of the disciplinary authority thereon. This being the stage at which the respondent had rushed to the Tribunal, we do not consider it necessary to require the Tribunal at this stage to examine any other point which may be available to the respondent or which may have been raised by him.
19. The Honble Apex Court has also frowned upon that the Courts and Tribunals going ahead sometime to quash the Memo and Articles of Charges itself in a disciplinary enquiry, while it is a fact that the result and conclusion of the disciplinary enquiry would always be amenable to judicial review, and any injustice to the delinquent official can be set right by the Courts in judicial review. There is nothing to prevent departmental enquiry proceedings to be started and pursued even when criminal proceedings on the same charges are pending (Jang Bahadur Singh vs. Baij Nath Tiwari:AIR 1969 SC 30; Anand Narain Shukla vs. State of MP: AIR 1979 SC 1923; Superintendent (Tech.I) Central Excise IDD vs. Pratap Rai AIR 1978 SC 1244; Union of India vs. Patnaik, M.B.: AIR 1981 SC 858), so long as the criminal proceedings have not ended in acquittal (Delhi Cloth and General Mills vs. Kushal Bhan: AIR 1960 SC 806), and there is no violation of natural justice even on the ground that evidence is common to both the proceedings (Delhi Cloth and General Mills (supra)).
20. In the result, in the facts and circumstances of the case, the relief sought for by the applicant, in this OA, does not deserve to be allowed, and the OA is, therefore, rejected, but there shall be no order as to costs.
7. We have heard Shri A.S.N. Murthy, learned counsel for the applicant and Shri Krishan Kumar, learned counsel for the respondents. Undisputedly, the applicant belongs to State of Bihar. His claim is that he belongs to the Scheduled Tribe community of Kharia. However, according to the respondents, the caste certificate dated 05.02.1982 submitted by him to the Staff Selection Commission to secure appointment as LDC with them is a fake one purported to have been issued to him by the Zila Padadhikari, Saran (Chapra), Bihar wherein it has been mentioned that he belongs to Kharia community which is a recognized under amended orders of 1956 as Scheduled Tribe Caste. Their further contention is that the District authorities have never issued any caste certificate in the name of the applicant. Though the Kharia caste comes under Scheduled Tribe category in Bihar but its members do not reside in the whole of Saran (Chapra) District. Further, the applicant belongs to Nonia caste which is a notified OBC caste in Bihar State. Moreover, the investigation in the matter reveals that the Caste Certificate (Scheduled Tribe) Issue Register for the relevant period, maintained in the office of District Welfare Officer, Saran, who is the concerned authority for issuing such certificates, does not bear any entry about issuance of the certificate in question. Apart from that, the Khata Sankhya-18 of Khatiyan of Sahajitpur area maintained by Revenue department of State Government and the Below Poverty Line list of Sarmi Village, show the caste status of family of the applicant as other backward classes. Therefore, according to them, he does not belong to Kharia caste and he has falsely claimed and obtained the forged certificate of Scheduled Tribe.
8. In our considered view, when the High Court of Judicature at Patna has asked the State Government of Bihar to make an inquiry to find out whether the Kharias/Kharia-Nonia communities were Tribals or not, whether they belong to Scheduled Tribes or not and whether the members of the said communities including the applicant have obtained the forged certificates of the caste and the competent authority has cancelled those certificates after due inquiry, no coercive steps should be taken in the matter. Therefore, the respondent-department should not have been in a hurry to establish with their own departmental inquiries that the Kharia caste is a Scheduled Tribe and Nonia caste is an OBC. It is an admitted fact that the applicant is in possession of a certificate showing that he belongs to Kharia caste and it is a Scheduled Tribe. In case the findings of the Central Bureau of Investigation is that the applicant is not a Kharia as per the certificate issued to him and he belongs to OBC category they should have taken necessary steps to get the certificate issued to the applicant cancelled by the competent authority. In our considered view, just because the respondents came to the conclusion through their own method of verification that the applicant does not belong to the Kharia community which has been declared as a Scheduled Tribe and it is not established that the applicant belongs to that community, the respondents cannot come to a conclusion that he has obtained the Scheduled Tribe certificate by forgery or by any unlawful means. The genuineness or correctness of the Caste Certificate cannot be gone into by the appointing authority/disciplinary authority in a disciplinary proceedings. It can, of course, ask the issuing authority or the District Collector to verify whether the certificate as issued to the applicant could still be valid or not. However, it is only if the Certificate is cancelled, the disciplinary authority can proceed against the employee for having furnished the false certificate. The cancellation of the caste certificates has its own prescribed procedure and it is for the competent authority to follow it. Secondly, it is seen that a criminal case on the very same issue is pending against the applicant with identical list of documents and witnesses. In the said criminal case also, the allegation against the applicant is that he is having a forged caste certificate showing that he belongs to Kharia community. As held by the Apex Court in Capt. M. Paul Anthony (supra), since the departmental proceedings and the criminal proceedings are based on identical and similar set of facts and the charge in the criminal case against the applicant is of a grave nature which involves complicated questions of law and fact, it is quite appropriate that the departmental enquiries in such cases should wait for the decision in the criminal case pending against the applicant.
9. In the above facts and circumstances of the case, we allow and quash and set aside the departmental proceedings initiated against the applicant by the 2nd Respondent vide impugned Memorandum dated 19.03.2007. Consequently, we direct the respondents not to proceed with the departmental inquiry initiated against him pursuant to the aforesaid Memorandum. However, they may take appropriate action to get the Caste Certificate produced by the applicant cancelled by the competent authority after due process and if it is cancelled, they are at liberty to initiate fresh departmental proceedings against him, if so advised.
10. There shall be no order as to costs.
( JAYATI CHANDRA) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
`SRD