Central Administrative Tribunal - Patna
Rupesh Kumar vs Posts on 6 March, 2024
1 OA No. 64/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
O.A. No. 050/00064/2023
Reserved on: 23.01.2024
Pronouncement on: 06.03.2024
CORAM
HON'BLE MR. SUNIL KUMAR SINHA, MEMBER [A]
HON'BLE MR. AJAY PRATAP SINGH, MEMBER [J]
Rupesh Kumar, Male, Aged about 28 years, Son of Madan Prasad Yadav,
Presently posted as GDS BPM (under Put-off duty), Nayagaon BO in a/c with
Kesariya SO, East Champaran Division, Motihari, Resident of Village and P.O.-
Sembhuapur, P.S.- Dumariyaghat, Dist.- East Champaran- 845423.
.......... Applicant.
-Versus-
1. The Union of India through the Secretary, Department of Posts, Government
of India, Sansad Marg, DakBhawan, New Delhi- 110001.
2. The Secretary, Department of Posts, Government of India, Sansad Marg,
DakBhawan, New Delhi-110001.
3. The State of Bihar through the Principal Secretary, Department of Education,
New Secretariat, VikashBhawan, Patna Bihar-800015.
4. The Secretary, Bihar Sanskrit Shiksha Board, Harding Rd, Patna, Bihar-
800001.
5. The Chief Post Master General, Bihar Circle, Harding Rd, Veerchand Patel
Road Area, Patna, Bihar-800001.
6. The Postmaster General, Northern Region, Muzaffarpur-842002.
7. The Director Postal Services, Northern Region, Muzaffarpur- 842002.
8. The Superintendent of Post Offices, East Champaran Division, Motihari-
845401.
........Respondents.
For Applicant:- Shri Nilesh Sinha, Advocate
For Respondents:- Shri R.R. Singh, Additional Standing Counsel for
Respondents No. 1,2 & 5 to 8.
Shri Sarvdeo Singh, Advocate with Shri Sanjay Kumar,
Advocate for Respondent No.3.
Shri Shashank Shekhar Jha, Advocate for Respondent
No.4.
ORDER
AS PER:- AJAY PRATAP SINGH, MEMBER[JUDICIAL]
1. The present Original Application has been filed under Section 19 of the Administrative Tribunals, Act 1985 to set-aside chargesheet dated 2 OA No. 64/2023 19.12.2020/01.01.2021 and order dated 16.08.2021, whereby representation to recall charge sheet and order of put-off duty has been rejected. So also seeking direction to respondents to reinstate applicant on the post of Gramin Dak Sevak (for brevity hereinafter referred as "GDS").
PRAYER
2. The applicant has claimed following main reliefs (as extracted from the OA) as under:-
"(i) That Your Lordships may graciously be pleased to quash the whole departmental proceeding instituted against the applicant under Rule 10 B of the GDS (Conduct and Engagement) Rules, 2020 in connection to Memo dated 29.12.2020/01.01.2021.
(ii) That Your Lordships may further be pleased to hold and declare that the charges framed against the applicant as stated in Memo dated 29.12.2020/01.01.2021 are not sustainable in the eyes of law.
(iii). That Your Lordships may further be pleased to set aside the order dated 16.08.2021 passed by the Director Postal Services, Northern Region, Muzaffarpur wherein the prayer for revocation of order of put off duty dated 05.09.2017 and recall of charge-memo dated 29.12.2020/01.01.2021 have been rejected.
(iv) That Your Lordships may be pleased to set aside the order of put off duty dated 05.09.2017 passed by the Superintendent of Post Offices, Champaran Division, Motihari and subsequently be pleased to reinstate the applicant on his original post.
(v) Any other relief[s] as Your Lordships may deem fit and proper, may also be allowed."
FACTS IN BRIEF
3. Briefly stated, the facts, as adumbrated by the applicant in the OA are that he was engaged on the post of GDS BPM, Nayagaon BO in account with Kesariya SO vide memo dated 26.06.2015 (Annexure A-2) and joined on the said post.
4. The further case of applicant that he has been appointed on the post of GDS BPM based on mark sheet issued by Madhyama Examination of Bihar Sanskrit Shiksha Board, Patna dated 25.7.2008 ( Annexure A-2) ( for brevity herein after referred as the Board). The Board has cancelled the results of year 2008 of candidates with Code No. 4202 and issued Press Note No.10/2016.
5. The Press Note No. 10 of 2016 dated 24.08.2016 was challenged before Hon'ble High Court Patna in CWJC No. 17846 of 2016. The Hon'ble Court vide order dated 11.04.2017 set-aside Press Note No. 10 of 2016 and directed the Secretary of the Board to issue Show Cause Notice with specific grounds thereafter on receipt of reply, if any, the Board shall take a decision by passing order in individual cases. The Secretary of the Board issued Show Cause Notice 3 OA No. 64/2023 dated 10.08.2017. The Board issued another Press Note No.05/2020 dated 17.06.2020 and again cancelled results of Code No. 4202 of year 2008. The applicant once again approached Hon'ble High Court in CWJC No.7174 of 2020. The Hon'ble High Court vide order dated 04.02.2021 (Annexure A-8) quashed decision of the Board and directed respondents to give specific notice about the fault of the applicant and after providing opportunity of hearing, the Board shall take fresh decision.
6. The applicant had further stated that the Superintendent of Post Offices issued impugned Charge Sheet dated 29.12.2020/01.01.2021 for major penalty accordance with Rule 10-B of the GDS (Conduct and Engagement) Rules, 2020 (for brevity referred as Rule 2020).
7. The applicant has filed M.A. No. 209 of 2003 to bring on record major penalty order dated 03.03.2023 and also to add in the prayer to set-aside major penalty order dated 03.03.2023, of dismissal from engagement. The applicant has filed the said M.A. stating that Enquiry was proceeded with, Enquiry Officer submitted report dated 16.01.2023 found charges fully proved and final order dated 03.03.2023 of dismissal from services has been passed. The said M.A. No. 209/2023 was withdrawn by counsel for applicant on 24.03.2023. The present O.A. is to set-aside major penalty charge sheet Annexure A-1 and order dated 16.08.2021, whereby representation was rejected.
8. Per Contra, the respondents have contested the claim of applicant by filing reply. The Postal Department has filed reply on behalf of Respondent no.1,2 & 5 to 8. The R.O. Muzaffarpur issued letter dated 25.10.2016 under Sub- rule (1) & (2) of Rule 8 of GDS (C&E) Rule 2020 to terminate services of applicant engaged on 26.06.2020. Gramin Dak Sevak not rendered more than three years services liable to be terminated any time by a notice. So also categorically stated that at time of the appointment applicant was informed that services will be terminated at any time when any information and certificate are found fake later on. The disciplinary proceedings initiated pursuant to impugned major penalty Charge sheet. The department has proved the charges of fake mark sheet to procure employment with cogent material and applicant has miserably failed to bring any other material to rebut the allegations. The Enquiry Officer submitted report dated 16.01.2023 fully proved the charges that applicant secured appointment on forged mark sheet with Roll No. 0619, Roll Code 4202 of year 4 OA No. 64/2023 2008 of the Board and the Board found it to be fake. The applicant could not prove that mark sheet was genuine.
9. The authorities of Postal Department further stated in the WS that Enquiry report dated 16.01.2023 found charges proved and report was sent to applicant vide letter dated 20.01.2023 to submit representation.
10. The disciplinary authority on the basis of material in Enquiry Report dated 16.01.2023, and representation dated 07.02.2023 of applicant on Enquiry Officer report with other relevant records came to the conclusion that applicant has no vested legal right to continue on the post based on fake mark sheet and passed final major penalty order dated 03.03.2023. The Board found applicant marks in the mark sheet did not match with the marks published by Board and declared void.
11. The respondents named above further stated in the WS that Superintendent of Post Offices, Champaran Division, Motihari on 02.09.2020 sent certificate/mark sheet for verification of the applicant to the Board for verification of its genuineness. The Board sent verification report dated 12.10.2020 that marksheet of applicant being forged and fictitious already cancelled said mark sheet of the applicant.
12. The respondents named above also stated that there was no direction from Hon'ble High Court specifically to respondents in writ applications filed by the applicant. Since allegations are of grave in nature using fake certificate to secure appointment. The Enquiry Report proved the charges and major penalty order dated 03.03.2021 for dismissal has been passed. Hence, present O.A. challenging charge sheet deserves to be dismissed.
13. The respondent no.4-the Board has also filed counter affidavit executed by the Secretary, BSSB, Patna. The Board has ordered for enquiry of Centre Code of 4202 of year 2008 and found 25 candidates mark sheet not verified. Thereafter another investigation/enquiry ordered to be conducted by the committee. The report was submitted by Committee of the Board and result of 283 persons of Centre Code 4202, Exam 2008 was cancelled including applicant.
14. The Board has further stated on the affidavit that Hon'ble High Court in CWJC No. 17846 of 2016 on 11.04.2017 directed " the Board to issue notice on specific ground of cancellation of result of applicant" Upon receipt of reply to 5 OA No. 64/2023 show cause notice/explanation, if any, from the applicants, the Board shall take a decision by separate orders. The further stand of the Board that pursuant to Hon'ble Court direction on 11.04.2017 Show Cause Notice dated 10.08.2017 was issued to the applicant and deliberately applicant did not appear. The Hon'ble High Court in another CWJC No. 7174/2020 vide order dated 04.02.2021 considering earlier order dated 11.04.2017 in CWJC No. 17846/2016 directed to the Board to give fresh notice and offer providing opportunity of hearing to applicant and take decision within three months from date of receipt of order.
15. The Board has further stated that the applicant has not respected Hon'ble High Court order dated 04.02.2021 in CWJC No. 7174/2020 and decided not to appear before the Board, thereafter the Board issued another notice dated 28.12.2023 (Annexure-G with 2nd supplementary counter affidavit) but applicant deliberately not appearing before the Board and cannot take advantage of his wrong act of disobedience of order dated 04.02.2021 in CWJC No.7174/2020 as he has not appropriate material relating to his fake mark sheet and avoiding to produce original marksheet, admit card, certificate etc.
16. The Board has also submitted in counter-affidavit as per direction of Hon'ble High Court in CWJC No. 10951/2015 (Public Interest Litigation), the CBI is investigating into such type of cases of securing appointment in Government of India based on forged certificate. Since applicant has chosen not to approach the Board in compliance of Hon'ble Court order dated 04.02.2021 in CWJC No.7174/2020 the applicant cannot take advantage of his own wrong acts and present O.A. deserved to be dismissed being devoid of merit.
SUBMISSION ON BEHALF OF THE APPLICANT
17. Shri NIlesh Sinha, learned counsel appearing for applicant argued that impugned memorandum of charges dated 29.12.2020/01.01.2021 is based on the Board Memo No. 5/2020 dated 17.06.2020-whereby the result of 283 candidates of Madhyama examination of year 2008 was cancelled by the Board and applicant is also one of such 283 candidates. Mr. Nilesh Sinha laid much emphasis that applicant filed CWJC No. 7174/2020 Anurag Kumar & 23 others versus State of Bihar and others before Hon'ble High Court Patna. Their Lordships vide order dated 04.02.2021 in CWJC No. 7174/2020 has directed respondents to give specific notice about fault in case of these applicants and after providing opportunity of hearing to applicants, the Board will take fresh decision 6 OA No. 64/2023 within period of three months. Since the order of cancellation of result of 283 candidates quashed by the Hon'ble High Court vide order dated 11.04.2017 in CWJC No. 17846 of 2016 and show cause notice quashed vide order dated 04.02.2021 in CWJC No. 7174/2020. Hence, there is no basis, no material therefore whole enquiry proceedings deserves to be quashed.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS
18. Shri Shashank Shekhar Jha learned counsel appearing for the respondents Board contended that Hon'ble High Court, Patna in CWJC No. 17846 of 2016 vide order dated 11.04.2017 specifically directed the Board to issue show cause notice upon receipt of any reply to SCN, if any from the petitioners, the Board shall take a decision. The applicant did not appear before the Board inspite of Show Cause Notice. The Hon'ble High Court on 11.04.2017 passed conditional order, if any, reply to show cause notice received from applicants then order was to be passed after providing opportunity of hearing to applicant. Since applicant did not choose to neither submit reply to Show Cause Notice nor appeared before the Board and cannot take advantage of his wrong acts.
19. Shri Shashank Shekhar Jha, learned counsel appearing for the Board laid much emphasis on that applicant in the second round approached before Hon'ble High Court in CWJC No. 7174 of 2020. The Hon'ble High Court vide order dated 04.02.2021 in reference to order dated 11.04.2017 in CWJC No. 17846 of 2016 once again directed to the Board to provide opportunity of hearing to applicants on receipt of order. The Board has issued once again notice dated 28.12.2023 with specific material pointing out fault that on investigation by CBI pursuant to direction in Public Interest Litigation in cases of appointment on fake certificates in the Postal Department, Government of India. The applicant was informed to appear before the Board with documents original mark sheet, certificate, admit card, transfer certificate of the school etc. but applicant has chosen not to honour Hon'ble High court order and applicant never appeared before the Board. The applicant has committed high level of fraud secured appointment based on the fake mark sheet of the Board and in spite of Hon'ble High Court order not appearing before the Board and trying to take advantages of his own wrong. The applicant has caused delay in appearing and still avoiding appearance before the Board and cannot reap fruits owing to delay caused by dilatory tactics.
7 OA No. 64/202320. Shri Rana Randhir Singh learned Additional Standing Counsel appearing for respondents no. 1,2 & 5 to 8 vehemently argued that applicant secured fraudulent appointment based on fake mark sheet, the fact goes to the root of matter. The applicant has not appeared before the Board in spite of categorical direction by the Board and not even produced his original certificates before the Board. There is specific allegation of obtaining mark sheet which is nothing but fake. The Postal Department has sent verification letter along with mark sheet to the Board on 02.09.2020 for verification of its genuineness. The Board has informed in writing that applicant mark sheet is not verified and found to be fake with cogent material prosecution has established the charge and applicant miserably failed to rebut. The strong-prima-facie case of using fake mark sheet made out and law does not permit to quash impugned charge sheet in routine manner.
21. Shri Rana Randhir Singh learned Additional Standing Counsel also submitted that applicant has only challenged impugned charge sheet dated 29.12.2020/01.01.2021 in the present OA. Whereas applicant participated in enquiry received enquiry report dated 16.01.2023, proved all the charges and represented against adverse enquiry report. Thereafter accordance with due procedure competent authority inflicted major penalty order dated 03.03.2023 not impugned in the present O.A. The impugned charge sheet dated 01.01.2023 based on cogent legal material and all charges proved in enquiry and penalty order passed. The present OA is misconceived deserves dismissal with heavy cost for mis-use of process of law in case of fraudulent appointment.
ANALYSIS
22. We have given our anxious considerations to the rival contentions of the parties and perused the material placed on record, in our opinion the Original Application is devoid of merit.
23. The admitted facts in the case that in the present OA applicant seeking substantive relief to set-aside impugned charge sheet and representation to recall charge sheet, rejected vide impugned order dated 16.08.2021. Whereas Inquiry report dated 16.01.2023, proved all the charges of using fake mark sheet. The applicant represented against the Inquiry report and final impugned penalty order dated 03.03.2023 has been passed for dismissal from service. The applicant filed M.A. No. 209/2023 on 20.03.2023 to amend the OA but for reasons best known 8 OA No. 64/2023 to the applicant, the M.A. No. 209/2023 was withdrawn on 24.03.2023. So also admittedly the impugned charge sheet has been issued by the competent authority.
24. The dispute in the present case is that applicant secured appointment on 26.06.2015 as GDSBPM based on mark sheet of year 2008 issued by the Board. The Board in course of verification of marks of the present applicant of centre code of 4202 of the year 2008 detected variation in marks in tabulation register. The Chairman of the Board ordered detail inquiry in the matter by the duly constituted committee. Based on the investigation, enquiry of the committee of the Board, the Board decided to cancel result of applicant and lodge F.I.R. in relation to fraudulent publication of the result of year 2008. The applicant filed CWJC No. 17846/2016 before Hon'ble High Court and vide order dated 11.04.2017 quashed press note dated 24.08.2016 of the Board directing the Board to issue Show Cause Notice to applicant. Upon receipt, if any, reply to Show Cause Notice is filed by the applicant, the Board shall take up a decision. Undisputedly the applicant did not submit reply to Show Cause Notice and so also applicant did not approach the Board, inspite of information vide Show Cause Notice dated 10.08.2012 to appear before the Board on 01.09.2017 with original documents as evidence.
The applicant filed another C.W.J.C. No. 7174 of 2020 (Annexure A-8) before Hon'ble High Court Patna. The Hon'ble court vide order dated 04.02.2021 taking note of order dated 11.04.2017 in CWJC No. 17846 of 2016 issued specific direction to the Board to issue Show Cause Notice and opportunity of hearing to applicants and Board to take fresh decision within three months from date of receipt of order dated 04.02.2021. It is also undisputed that in spite of order dated 04.02.2021 of Hon'ble High Court and Show Cause Notice dated 28.12.2023, applicant has not appeared before the Board. The stand of the applicant that since Board has already cancelled results and said cancellation has been set aside to pass fresh order in three months now there is no material to issue impugned charge sheet and now the Board can not pass order as three months time given by Hon'ble court is over. Thus impugned chargesheet deserves to be quashed. Whereas stand of the respondents that applicant has not appeared before the Board in spite of repeated written communication and cannot take advantage of delay tactics and wrong Acts. The charge sheet is to initiate disciplinary proceedings and already culminated into inquiry report and finally major penalty 9 OA No. 64/2023 order dated 03.03.2023, dismissal from service issued, the present O.A. consequently deserves to be dismissed as final penalty order dated 03.03.2021 is not impugned in the O.A. THE ISSUE
25. From the above submissions of the learned counsel appearing for the parties and material placed on record, Enquiry report dated 16.01.2023, representation of applicant dated 07.02.2023 on the Enquiry report proved all charges, Major penalty order dated 03.03.2023 by competent authority dismissal from service. The Show Cause Notices issued by the Board accordance with directions of the Hon'ble High Court and specific direction to applicant to submit reply and appear before the Board for availing opportunity of hearing. The applicant did not appear before the Board to show his bonafides rather wants to take advantage of his non-appearance before the Board. The issue which arises for consideration:-
"Whether the impugned charge sheet can be quashed on the ground that the facts stated in the charges are erroneous?"
26. The Hon'ble Supreme Court has settled legal preposition relating to scope of interference in departmental proceedings by way of exercise of power of judicial review as under:-
(i) In case of Secretary, Ministry of Defence and others Versus Prabhash Chandra Mirdha, reported in (2012) 11 SCC 565. Their Lordships held reads as-
"8. The law does not permit quashing of charge-sheet in a routine manner. In case the delinquent employee has any grievance in respect of the charge-sheet he must raise the issue by filing a representation and wait for the decision of the disciplinary authority thereon. In case the charge-sheet is challenged before a court/tribunal on the ground of delay in initiation of disciplinary proceedings or delay in concluding the proceedings, the court/tribunal may quash the charge-sheet after considering the gravity of the charge and all relevant factors involved in the case weighing all the facts both for and against the delinquent employee and must reach the conclusion which is just and proper in the circumstance. (Vide State of M.P. v. Bani Singh, State of Punjab v. Chaman Lal Goyal, Registrar, Coop. Societies v. Sachindra Nath Pandey, Union of India v. Ashok Kackers, Prohibition & Excise Deptt. v. L. Srinivasan12, State of A.P. v. N. Radhakishan, Food Corporation of India v. V.P. Bhatia, Supt. of Police v. T. Natarajan, M.V. Bijlani v. Union of India, P.D. Agrawal v. SBI and Govt. of A.P. v. V. Appala Swamy.)
10. Ordinarily a writ application does not lie against a charge-sheet or show-cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a charge-sheet or show-cause notice in disciplinary proceedings should not ordinarily be quashed by the court. (Vide State of U.P. v. Brahm Datt Sharma, Bihar State Housing Board v. Ramesh Kumar Singh, Ulagappa v. Commr., Special Director v. Mohd. Ghulam Ghouse and Union of India V. Kunisetty Satyanarayana.) 10 OA No. 64/2023
11. In State of Orissa v. Sangram Keshari Misra (SCC pp. 315-16, para 10) this Court held that normally a charge-sheet is not quashed prior to the conducting of the enquiry on the ground that the facts stated in the charge are erroneous for the reason that to determine correctness or truth of the charge is the function of the disciplinary authority. (See also Union of India v. Upendra Singh.)
12. Thus, the law on the issue can be summarised to the effect that the charge-sheet cannot generally be a subject-matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings."
[Emphasis supplied]
(ii) In case of Union of India Versus Upendra Singh, reported in (1994) 3 SCC 357. Their Lordships held reads as-
"6. In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with Imputation or particulars of the charges, if any) no misconduct or other Irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no Jurisdiction to go into the correctness of truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal v. Gopi Nath & Sons. The Bench comprising M.N. Venkatachalilah, J. (as he then was) and A.M. Ahmadi, J., affirmed the principle thus: (SCC p. 317, para 8)
7. Now, if a court cannot interfere with the truth or correctness of the charges even in a proceeding against the final order, it is ununderstandable how can that be done by the tribunal at the stage of framing of charges? In this case, the Tribunal has held that the charges are not sustainable (the finding that no culpability is alleged and no corrupt motive attributed), not on the basis of the articles of charges and the statement of imputations but mainly on the basis of the material produced by the respondent before it, as we shall presently indicate."
[Emphasis supplied]
(iii) In case of in case of B.C. Chaturvedi Vs. Union of India, 1995 (6) SCC 749: AIR 1996 SC 484 has held as under:-
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.11 OA No. 64/2023
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel this Court held at p. 728 that if the conclusion, upon consideration evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.
14. In Union of India v. S.L. Abbas when the order of transfer was interfered with by the Tribunal, this Court held that the Tribunal was not an appellate authority which could substitute its own judgment to that bona fide order of transfer. The Tribunal could not, in such circumstances, interfere with orders of transfer of a government servant. In Administrator of Dadra & Nagar Haveli v. H.P. Vora it was held that the Administrative Tribunal was not an appellate authority and it could not substitute the role of authorities to clear the efficiency bar of a public servant. Recently, in State Bank of India v. Samarendra Kishore Endow a Bench of this Court of which two of us (B.P. Jeevan Reddy and B.L. Hansaria, JJ.) were members, considered the order of the Tribunal, which quashed the charges as based on no evidence, went in detail into the question as to whether the Tribunal had power to appreciate the evidence while exercising power of judicial review and held that a tribunal could not appreciate the evidence and substitute its own conclusion to that of the disciplinary authority. It would, therefore, be clear that the Tribunal cannot embark upon appreciation of evidence to substitute its own findings of fact to that of authority."
[Emphasis supplied]
(iv) In case of the High Court of Judicature at Bombay versus Shashi Kant S. Patil and another, reported in AIR 2000 Supreme Court 22 has held reads as -
"The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a Writ Petition filed under Article 226 of the Constitution."
[ Emphasis supplied]
(v) In case of State Bank of India versus A.G.D. Reddy, reported in 2023 SCC OnLine SC 1064Their Lordships held in para 42 held reads as under
"42. It is now well settled that the scope of judicial review against a departmental enquiry proceeding is very limited. It is not in the nature of an appeal and a review on merits of the decision is not permissible. The scope of the enquiry is to examine whether the decision making process is legitimate and to ensure that the findings are not of any evidence.
If the records reveal that the findings are based on some evidence it is not the function of the Court in a judicial review to re-appreciate the same and arrive at an independent finding on the evidence. This lakshman rekha has been recognized and reiterated in a long line of judgments of this Court."
[ Emphasis supplied]
27. The case on hand requires to be examined in the light of aforesaid settled legal prepositions. So also on admitted facts that after issuance of impugned charge sheet. The Enquiry officer submitted report and proved charges of fake mark sheet used in securing appointment in the Postal Department, Government of India and final order of major penalty dated 03.03.2023 also passed. Except impugned charge sheet neither enquiry report nor major penalty order is under challenge in present OA.
28. The gist of the charges against the applicant in the impugned charge sheet that the Board has issued mark sheet and applicant secured employment in postal department, Government of India. Whereas, the mark sheet of applicant with roll no. 0619 under Roll Code 4202 of year 2008 purported to be issued by 12 OA No. 64/2023 Madhyama Exam of the Board, which has been found fake. The impugned charge sheet has been issued with substance of imputation of misconduct to find out the truth of said allegations inquiry had been proposed.
29. The sum and substance of the argument of learned counsel appearing for applicant that impugned charge sheet is based on the memo of the Boards relating to cancellation of result of applicant. The abovementioned memo of the Board has been set-aside by the Hon'ble High Court in CWJC 7174/2020, on 04.02.2021, directed the Board to give specific material in notice thereafter provide opportunity of hearing to the applicant thereafter pass order. Further stand of the applicant that since the Board not taken decision in three months, so there is no material against applicant hence impugned charges be quashed.
30. The disciplinary proceedings initiated with issuance of the impugned charge sheet. The nature of charge is serious relating to procuring fake mark sheet with high percentage to secure appointment.
It is stated that by the Postal Department, Government of India that in P.I.L. Hon'ble High Court Patna directed CBI to investigate such cases of fake mark sheets on basis of which appointment has been secured in the postal department, Government of India. We are of the view that so, far as impugned charge sheet is concerned it's to find out truth of allegations and the chargesheet is not encyclopedia of evidence, it's to initiate enquiry to afford opportunity to applicant to demonstrate that allegations are not made out by producing original mark sheets, original certificate, original school transfer certificate etc as demanded by the Board pursuant to Hon'ble High Court order dated 04.02.20021 in CWJC 7174 and order dated 11.04.2017 in CWJC No. 17846 of 2016. But the applicant has chosen not appear before the Board and seeking advantage of non- appearance. Whereas based on verification reports of the Board by cogent material prosecution already proved the charges and applicant could not rebut. Thereafter final order dt. 03.03.2023 passed not challenged in the OA. The relevant part of order dated 11.04.2017 and dated 04.02.2021 passed by Hon'ble High Court Patna is reproduced for ready reference :-
(i) The Hon'ble High Court in CWJC No. 17846 of 2016 vide order dated 11.04.2017. Their Lordships held as under :-
"13. However, in the facts and circumstances of the case, I direct the Secretary Bihar Sanskrit Shiksha Board, Patna to ensure that the petitioners are served with show cause notices containing grounds on the basis of which the Board proposes to cancel their results within a period of four weeks, inviting their response within a reasonable time. The Board will be at liberty to invite explanation of the petitioners through press communiqué/notice on the website of the Board but in any case, specific grounds must be mentioned in such notice. Upon receipt of reply to show cause notice/explanation, if any, from the petitioners, the Board shall take a 13 OA No. 64/2023 decision by passing separate orders dealing with individual cases of the petitioners."
[Emphasis Supplied]
(ii) The Hon'ble High Court in CWJC No. 7174 of 2020 considered earlier order dated 11.04.2017 vide order dated 04.02.202. Their Lordships held reads as :-
"From perusal of Annexure-9 series the Court finds that the notice does not answer the requirement as indicated in the order dated 11.4.2017 in C.W.J.C. No. 17864 of 2016. Accordingly, the follow up decision of the respondents, cancelling the result of the petitioners cannot sustain, it is accordingly quashed. The respondents are directed to give specific notice about the fault in the case of these petitioners and after providing opportunity of hearing to the petitioners, the respondent Board will take fresh decision within a period of three months from the date of receipt/production of a copy of this order in view of the discussion made hereinabove.
All the writ applications stands allowed and disposed of in the manner indicated above."
[Emphasis Supplied]
31. It is clear from the abovementioned orders of their Lordships that the Board was directed to issue show cause. Upon such show cause notice, if any, reply is filed by the applicant, the Board will take fresh decision on providing opportunity of hearing to the applicant within three months from date of receipt of copy of order passed.
32. The Hon'ble High Court Patna in abovementioned orders directed applicant to submit reply to the notice and if reply is filed to provide opportunity of hearing but applicant has chosen not to appear before the Board and cannot take advantage of own wrong acts. The Hon'ble Supreme Court observations in this regard reads as:-
(i) In the case of Indore Development Authority versus Shailendra (Dead) through legal representatives and Others reported in (2018) 3 SCC 412.
Their Lordships held at paragraph 143 reads as:-
"It is a settled proposition that one cannot be permitted to take advantage of his own wrong. The doctrine 'commodum ex injuria sua nemo habere debet' means convenience cannot accrue to a party from his own wrong. No person ought to have advantage of his own wrong. A litigant may be right or wrong. Normally merit of lis is to be seen on date of institution. One cannot be permitted to obtain unjust injunction or stay orders and take advantage of own actions. Law intents to give redress to the just causes, at the same time, it is not its policy to foment litigation and enable to reap the fruits owing to the delay caused by unscrupulous persons by their own actions by misusing the process of law and dilatory tactics."
[Emphasis Supplied]
(ii) In the case of Anneuser Busch Inbev India Limited versus Commissioner (Excise, Entertainment and Luxury tax) & ors MANU/DE/4352/2019 has held-
"The conduct of the party complaining about breach of principles of natural justice would also have to be considered. Having participated in such proceedings without protest the petitioner cannot be now allowed to challenge the procedure adopted by the appellate authority merely because, the result is not to his liking. Law does not permit a party to both approbate and reprobate."
[Emphasis Supplied] 14 OA No. 64/2023
(iii) In the case of In Joint Action Committee of Airline Pilots' Association of India (ALPAI) & Ors versus Director General of Civil Aviation & Ors 2011 (5) SCC 435, the Hon'ble Supreme Court explained the doctrine of election as under:-
"12. The doctrine of election is based on the rule of estoppels-the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppels by election is one of the species of estoppels in pais (or equitable estoppels), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily. [Vide Babu Ram v. Indra Pal Singh, P.R. Deshpande v. Maruti Balaram Haibatti and Mumbai International Airport (P) Ltd. V. Golden Chariot Airport.] [Emphasis Supplied]
33. Admittedly, the Board has issued show cause notices filed in present case also, applicant was informed through the notice, date of appearance for furnishing evidence in form of original copy of mark sheet certificate, admit card, school leaving certificate etc but inspite of orders of Hon'ble High Court applicant adopted delay tactics and not appeared before the Board. It was well within the knowledge of the applicant that mark sheet produced by him was fake and hence did not appear to avail opportunity of hearing to show original documents but has chosen not to do.
34. The applicant is blowing hot and cold at same time by taking inconsistent stand to prolong proceedings by misuse of process of law. The applicant cannot aprobate and reprobate, the law does not permit and applicant cannot be permitted to take advantage of own wrong by not appearing before the Board. Thus the contention of applicant miserably fails and OA being devoid of merit no interference is warranted.
35. We are of the opinion that the impugned charge sheet has not given rise to any cause of action and issued by the competent authority, no pre-existing right of applicant infringed. The disciplinary authority has passed penalty order dt. 03.03.2023 not impugned by the applicant for the reason best known to the applicant. The Hon'ble Supreme Court has settled legal preposition and precedents cited above. Thus Tribunal in limited scope of judicial review in matters of disciplinary proceedings against chargesheet cannot take over, function of disciplinary authority, no jurisdiction on to go into truth of allegations or correctness of impugned chargesheet as allegations are specific relates to procuring fake mark sheet.
CONCLUSION
36. In view, whereof, we decide the issue against the applicant. The impugned chargesheet dated 19.12.2020/01.01.2021 and rejection order dated 16.08.2021 15 OA No. 64/2023 is upheld. The applicant is not entitled to the relief sought in the O.A. Hence interference is declined.
37. Resultantly, the original application being devoid of merit accordingly dismissed. There shall be no order as to cost.
38. As a sequel thereof, Miscellaneous Application(s), if any, pending, shall stand disposed of.
Sd/- sd/- (Ajay Pratap Singh) (Sunil Kumar Sinha) Judicial Member, Administrative Member bp/-