Gujarat High Court
Union Of India vs Anil Kumar S/O Chandra Sharma on 5 August, 2024
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18023 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 18027 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 18125 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 18151 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 18330 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 18646 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 19332 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 19351 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 19364 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 19368 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 20492 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 20493 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 20494 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 20495 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 20497 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 20522 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 20525 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 20531 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 20533 of 2023
With
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NEUTRAL CITATION
C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024
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R/SPECIAL CIVIL APPLICATION NO. 20542 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 20709 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 21765 of 2023
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R/SPECIAL CIVIL APPLICATION NO. 21804 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 1080 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 1859 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 3467 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 3639 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 5625 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 8093 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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NEUTRAL CITATION
C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024
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UNION OF INDIA & ORS.
Versus
ANIL KUMAR S/O CHANDRA SHARMA
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Appearance in Special Civil Application No.18023 of 2023:
MR HARSHEEL D SHUKLA(6158) for the Petitioner(s) No. 1,2,3,4,5
MR JOY MATHEW(448) for the Respondent(s) No. 1
Appearance in Special Civil Application No.19351 of 2023:
MR. SHUSHIL R. SHUKLA for the Petitioners
MR. SHALIN MEHTA, SENIOR ADVOCATE with MS. ADITI S. RAOL for the
Respondent
Appearance in Special Civil Application No.18646 of 2023:
MR. SHUSHIL R. SHUKLA for the Petitioners
MR. SHALIN MEHTA, SENIOR ADVOCATE with MS. ADITI S. RAOL for the
Respondent
Appearance in Special Civil Application No.19364 of 2023:
MR. SHUSHIL R. SHUKLA for the Petitioners
MR. SHALIN MEHTA, SENIOR ADVOCATE with MR. VAIBHAV A. VYAS for
the Respondent
Appearance in Special Civil Application No.19368 of 2023:
MR. SHUSHIL R. SHUKLA for the Petitioners
MR. SHALIN MEHTA, SENIOR ADVOCATE with MR. VAIBHAV A. VYAS for
the Respondent
Appearance in Special Civil Application Nos.20492 to 20495 of 2023:
MR. PARTH Y. DIVYESHVAR for the Petitioners
MR. SHALIN MEHTA, SENIOR ADVOCATE with MR. VAIBHAV A. VYAS for
the Respondent
Appearance in Special Civil Application No.18125 of 2023:
MR. SHUSHIL R. SHUKLA for the Petitioners
MR. ABHILASH K. CLERK with MR. JOY MATHEW for the Respondent
Appearance in Special Civil Application No.21804 of 2023:
MR HARSHEEL D SHUKLA(6158) for the Petitioners
MR. MEHUL B. DHONDE for the Respondent
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NEUTRAL CITATION
C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024
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Appearance in Special Civil Application No.20542 of 2023:
MR. PARTH Y. DIVYESHVAR for the Petitioners
MR. SHALIN MEHTA, SENIOR ADVOCATE with MR. VAIBHAV A. VYAS for
the Respondent
Appearance in Special Civil Application No.21765 of 2023:
MR HARSHEEL D SHUKLA(6158) for the Petitioners
MR. SHALIN MEHTA, SENIOR ADVOCATE with MR. VAIBHAV A. VYAS for
the Respondent
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 05/08/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. RULE. Learned Advocates Mr. Ronith Joy, Mr. Joy Mathew, Ms. Aditi S. Raol, Mr. Vaibhav A. Vyas, Mr. Mehul Dhonde waive service of rule on behalf of the respondents.
2. This group of petitions is directed against Common Order passed by the Central Administrative Tribunal, Ahmedabad Bench in Original Application No.127/2022 and connected matters dated 04-05-2023. The issue pertains to the employment of the Respondents with the Postal Department. The present group of petitions is filed by the Union of India.
3. The present being of 3rd round of litigation, it would be appropriate to refer to the background, which lead to present petitions.
3.1 On 21.02.2014, Notification inviting applications for the post of Page 4 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024 NEUTRAL CITATION C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024 undefined Postal Assistant (PA) / Sorting Assistant (SA), etc. was issued As per the notification a candidate could apply for any one of the Circles. 564 vacancies were notified for Gujarat Circle. M/s. CMC Ltd. was entrusted with the work of entire recruitment process.
3.2 On 01.06.2024, Aptitude Test, first part of the examination was conducted. This examination was conducted at Ahmedabad, Vadodara and Rajkot.
3.3 On 13-19.09.2014, Successful candidates were allowed to appear in the second part of the examination, Typing/Computer. For this examination, Ahmedabad was the only centre for Gujarat Circle.
3.4 On 04.12.2014, Result of the tests/merit list was published by the department. A wait list was also published by the department.
3.5 Between 17.03.2015 to 31.03.2015, some divisions issued appointment orders and they allowed the candidates to join the service. Some divisions did not issue such orders.
3.6 On 11.12.2015, the Director General issued an order stating that the competent authority has ordered to cancel the PA/SA Direct Recruitment examination 2013-2014 held in 5 circles, Chhattisgarh, Gujarat, Haryana, Rajasthan and Uttarkhand.
3.7 On 21.12.2015, pursuant to the above order, the Circle Office issued the order cancel the PA/SA Direct Recruitment Examination 2013 & 2014. Those who had not joined the service were informed about the Page 5 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024 NEUTRAL CITATION C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024 undefined cancellation of examination and the candidates who had joined were served orders under Rule 5(1) of CCS (Temporary Service) Rules, 1965.
3.8 During the year 2015-2016, being aggrieved by the cancellation of examination/termination of service, several OAs came to be filed before the learned Tribunal. 183 OAs were filed by the candidates who were permitted to join the service at the relevant time and 83 OAs were filed by those candidates though selected not allowed to join the service.
3.9 On 18.03.2016, learned Tribunal was pleased to dispose of all the OAs by setting aside the order dated 11.12.2015 issued by the DG and further issued certain directions including a direction to the Secretary.
"68. The select list shall be kept in abeyance. The respondents are directed to probe into the matter by thorough investigation in a fair and transparent manner to be undertaken either by Vigilance Wing of the Department or by any suitable Investigating Agency. M/s. CMC Ltd. at appropriate high level should also be involved in the process as they will be able to throw much needed light in 'the affair. Depending upon the outcome of the probe the respondents shall take appropriate decision relating to operation of the select list in the light of the decision of the Honble Supreme Court in the case of Inderpreet Singh Kahlon v. State of Punjab (2006) 11 SCC 356 and Joginder Pal & Ors. v. State of Punjab & Ors. (2014) 6 SCC
644. Having regard to the fact that the applicants are out of job, we direct the respondents to complete the whole exercise as expeditiously as possible and preferably within a period of three months from the date of receipt of a copy of this order.
69. In view of our answer to the point No.(i) and (ii), it may be argued that as a consequence of the same, the applicants are entitled to be reinstated into service, but we decline to grant the relief of reinstatement into service for the reason that there are specific allegations against 34 specified candidates In the complaint Page 6 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024 NEUTRAL CITATION C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024 undefined received by the Public Grievances Cell on 09.4.2015.
None of the selected/appointed candidates pleads guilty. As such it is difficult to ascertain who are the 34 amongst the selected/appointed. The possibility that all the 34 or some amongst them may have been already appointed cannot be overruled. Such tainted, unscrupulous candidates who are responsible for the present crisis deserve to be seriously dealt with in accordance with law. Hence, we hold that the applicants are not entitled for reinstatement into service till such time the respondents complete the exercise as ordered herein above.
70. Before parting with the case, however, we may observe that it is expected that the Secretary, Department of Posts having regard to the magnitude of the matter shall leave no stone unturned to bring the guilty to book. It is their duty to unearth the scam and spare none howsoever high he/she may be. We expect the Department to make thorough Investigation into the matter.
71. The OAs are allowed to the aforementioned extent and the directions and observations made herein above."
3.10 In the year 2016, Union of India challenged the above mentioned order passed by the learned Tribunal before this Hon'ble High Court by way of various Special Civil Applications.
3.11 This Court by CAV Judgment dated 16.08.2016 passed in Special Civil Application No.10049 of 2016 and allied matters, was pleased to allow all the Special Civil Applications filed by Union of India and has held as under:
"[10.0] In view of the above and for the reasons stated above, we are of the opinion that the learned Tribunal has materially erred in exceeding in its jurisdiction in interfering with the decision of the Department in cancelling the entire result of the P.A./S.A. Direct Recruitment Examination 2013-14 and the consequential action of Page 7 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024 NEUTRAL CITATION C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024 undefined terminating the services of the appointed candidates solely on the ground that same is in breach of principles of natural justice. In view of the above and for the reasons stated above, we are of the opinion that the learned Tribunal has committed a serious error in quashing and setting aside the action of the Department in cancelling the entire result of the P.A./S.A. Direct Recruitment Examination 2013-14 and the consequential action of termination of the appointed candidates who were on probation. At this stage it is required to be noted that out of the total original applications as such so far as Gujarat Circle is concerned, 183 were appointed on probation and rest of the 83 were yet not appointed and they can be said to be in select / waiting list i.e. yet to be appointed.
[10.1] In view of the above and for the reasons stated above, all these petitions succeed. Impugned respective judgment and orders passed by the learned Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad in respective original applications are hereby quashed and set aside and consequently the action of the Department in canceling the entire result of the P.A./S.A. Direct Recruitment Examination 2013-14 and the consequent action of termination of the appointed candidates is hereby confirmed, in the facts and circumstances of the case. Rule is made absolute to the aforesaid extent in each of the petitions. However, there shall be no order as to costs."
3.12 The affected candidates there in feeling aggrieved approached the Hon'ble Supreme Court seeking direction of the department reinstate those persons who were not suspected of having committed any malpractices and have undergone the prescribed courses with all consequential benefits and 50% back wages with liberty to the department to take action against them in case subsequently, it is found in the investigation that they have indulged in some malpractice. The Order dated 13.07.2017 passed by the Hon'ble Supreme Court in Civil Appeal No.10513 of 2016, which reads as under:
"We have heard learned counsel for the appellants/petitioners and we have also heard learned Additional Solicitor General who has Page 8 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024 NEUTRAL CITATION C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024 undefined been instructed by officers of the concerned Department.
We have also perused the report of the Vigilance Committee set up by the Department.
We find from a perusal of the report of the Vigilance Committee that the entire examination was not necessarily vitiated but some persons who are suspected of having used malpractices in the examination of Postal Assistant/Sorting Assistant in five circles, viz., Uttarakhand, Rajasthan, Chhattisgarh, Haryana and Gujarat have actually been identified. The respondents will proceed against them in accordance with law but since they are quite a few in number, a formal show cause notice is dispensed with. However, they may be personally called and explained the allegations against them and given some reasonable time of about a week or ten days to give their reply to the allegations and then a final decision may be taken.
Those persons who are not suspected of having committed any malpractices and who have undergone the prescribed courses may be reinstated with all consequential benefits and 50% back wages with liberty to the respondents to take action against them in case subsequently it is found in the investigation that they have indulged in some malpractices.
We make it clear that the respondents are at liberty to take action against those persons who have violated the terms of the examination such as having appeared in more than one centre. Such violations will also be treated as malpractice.
We further make it clear that this order will not enure to the benefit of those persons who have not been given appointment letters. However, we also make it clear that those candidates who have not completed the course but were in the process of completing the course until the impugned action was taken may be permitted to complete the course/training provided they are not suspected of any malpractice.Page 9 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024
NEUTRAL CITATION C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024 undefined The appeals and special leave petitions stand disposed of.
Pending applications are also disposed of."
3.13 In the year 2017, the Candidates who were allowed to join the service earlier, were permitted to resume duty.
3.14 On 28.03.2018, even after the order dated 13.7.2017, Department did not issue appointment orders to several selected persons who could not join the service due to the cancellation of the examination. Therefore, they filed Contempt Petitions, being Misc. Application No.479 of 2018 and other allied matters. Hon'ble Supreme Court disposed of these Contempt Petitions clarifying the earlier order dated 13.7.2017 to the extent that those persons in five regions who have been selected and are not tainted but willing to undergo the course be permitted to join the course even if appointment letters had not already been issued. The Order dated 28.03.2018 passed by the Hon'ble Supreme Court in Misc. Application Nos.479-480 of 2018, which reads as under:
"It has been pointed out that there is no consistent practice in issuing appointment letters. Be that as it may, we clarify our order dated 13th July, 2017 to mean that those persons in the five regions who have been selected and are not 'tainted' but willing to undergo the course be permitted to join the course, even if appointment letters had not already been issued. The other terms of the order dated 13th July, 2017 remain unchanged.
We make it clear that this clarification is given only for the benefit of those persons who are not tainted. In other words, those candidates who are tainted or are suspected of having committed any malpractice will not get the benefit of this order.
This exercise be completed within three months.Page 10 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024
NEUTRAL CITATION C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024 undefined The miscellaneous applications are disposed of."
4. Pursuant to the aforesaid judgment of Hon'ble Supreme Court the respondent directed the applicants to remain present before them. On their appearance before the competent authority they were asked to put 100 signatures on papers provided by the department. After obtaining the signatures from the candidates, the department forwarded the same to CFSL for verification of signatures along with some documents like registration slip, original OMR sheet, original typing test evaluation sheet, original data entry evaluation sheet with attested copies of each with request to compare the Questioned signatures of the candidates with their specimen signatures enclosed and to opine whether the Questioned signatures tallied with the specimen signatures or not and whether those were of the same person or not.
4.1 However in compliance of the order passed by Hon'ble Supreme Court, the applicants were offered provisional appointments subject to certain conditions including outcome of the CFSL report.
After receipt of opinion of handwriting expert from CFSL the respondent no.5 issued charge Memorandum against each applicant on various dates alleging that the applicant indulged in improper way to secure appointment in Government department. On receiving the charge Memorandum, the applicants submitted their response, The respondent without considering the representation submitted by the applicants, proceeded with the inquiry by appointing the IO and PO.
4.2 In the course of inquiry the applicants made demand in written for Page 11 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024 NEUTRAL CITATION C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024 undefined additional defence documents and to summon defence witnesses. The IO allowed the request in part and proceeded with the inquiry without supplying the rest of the demanded documents. The respondent vide common letter dated 20.07.2021 informed to the applicants that the stage of examination of additional documents was declared as complete. It is averred that if any of the demanded documents is not available, then it is incumbent upon the department to issue non availability certificate for that document. In the present matter, neither demanded documents were supplied nor NAC was issued and still IO proceeded with the inquiry.
5. For the Union of India, this batch of petitions, learned Advocates Mr. Harsheel D. Shukla, learned Advocate Mr. Shushil R. Shukla and learned Standing Counsel Mr. Parth Y. Divyeshvar have appeared. Learned Standing Counsel Mr. Parth Y. Divyeshvar has argued from his lead matter being Special Civil Application No.20492 of 2023, while learned Advocate Mr. Harsheel D. Shukla and learned Advocate Mr. Shushil R. Shukla have adopted the arguments advanced by learned Standing Counsel Mr. Parth Y. Divyeshvar.
5.1 Similarly, for the respondents, learned Senior Advocate Mr. Shalin Mehta appearing with learned Advocate Ms. Aditi S. Raol have argued from his lead matter being Special Civil Application No.18646 of 2023 and learned Advocate Mr. Abhilash K. Clerk with learned Advocate Mr. Joy Mathew have argued from his lead matter being Special Civil Application No.18125 of 2023. The other learned Advocates Mr. Ronith Joy and learned Advocate Mr. Joy Mathew have adopted the arguments advanced by learned Senior Advocate Mr. Shalin Mehta and learned Advocate Mr. Abhilash K. Clerk.
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6. Learned Standing Counsel Mr. Parth Y. Divyeshvar has taken this Court through the orders of the Apex Court at Page-61 of the Paper-book and also Page-65, which is the clarification order of the Apex Court and submitted that pursuant to such orders, the Department has ordered reinstatement of the Respondents. The order stipulates a condition of making inquiry, wherein the respondents have accepted while joining service, therefore, the Department is just acting in according with the terms of the Reinstatement Order.
6.1 Learned Counsel has then argued that action of the Department to call for the signature of the candidates and send them for C.F.S.L. examination is also in consonance with the directions of the Hon'ble Apex Court, as the Apex Court did not contemplate any previous exercise to first hold the the respondents as tainted conclusively and then issue Notice. The Department has now some material i.e. the discrepancies in the signatures, which the Department has thought it fit to initiate proceedings by issuing the Notice to respond.
6.2 The Department is contemplating an inquiry in each of the case, where the signature differ by following all the necessary procedure and adhering to the principle of natural justice. Therefore, the Central Administrative Tribunal has committed an error in interfering with the contemptuous inquiry at the threshold.
6.3 It is submitted that the petitioner as an employer was within its power to initiate an inquiry against its employees particularly when there Page 13 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024 NEUTRAL CITATION C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024 undefined is a serious issue of mischief in the reinstatement examination.
6.4 It is submitted that the Central Administrative Tribunal has traveled beyond the jurisdiction to read something more in the decision of the Apex Court by concluding, as if the Apex Court carried directions to initiate criminal investigation through Police, which would include 'impersonation'.
6.5 It is submitted that the Central Administrative Tribunal has preempted the entire issue and rather that allowing the inquiry to proceed has assumed the oath of the Appellate Authority as well as Inquiry Officer in entering into the sufficiency of the evidence with the Department to contemplate an inquiry.
6.6 It is submitted that the Central Administrative Tribunal has interfered at a stage, where the respondents were yet to take up their stand in defence. Even before that the Central Administrative Tribunal has accepted the purported stand of the defence an scuttle the inquiry.
6.7 Learned Counsel has relied upon the decision of Apex Court in case of Subrata Nath v/s. Union of India reported in 2002 Live Law (SC) 998 to contend that interference of the Courts in matter of Departmental inquiry is very limited. The Courts can interfere only in case of violations of principle of natural justice and non-adherence to Statutory Regulation or Malafides. In the present case, non of the factors are in existence.
6.8 Reliance is placed on the decision of the Apex Court in case of State of Uttar Pradesh v/s. Prabhat Kumar reported in 2022 Live Law Page 14 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024 NEUTRAL CITATION C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024 undefined (SC) 736 to contend that when the order of punishment is set aside by the Court on the ground of inquiry not conducted properly then the Court should not preclude the employer to undertake inquiry in accordance with the law.
6.9 It is submitted that error is therefore, committed to the extent that no directions are issued to carry out the inquiry after rectifying the procedure.
6.10 It is argued that error is committed by the Central Administrative Tribunal by concluding that inquiry will fail as it lacks necessary evidence like CCTV footage, etc. and therefore, has virtually directed the manner in which inquiry should take place.
6.11 It is lastly submitted that the Department must be permitted to undertake the inquiry as the issue is serious and far reaching consequences as it is regulating mischief in the selection process.
7. Learned Senior Advocate Mr. Shalin Mehta has submitted that the alleged illegality in the Exam had taken place in several States, but it is only in Gujarat that the Department has taken actions to first terminate the employees and now after the orders of the Apex Court in favour of the respondents employees again initiate action of inquiry on absolutely non-existent grounds.
7.1 Learned Senior Advocate has also taken this Court through the orders passed by the Apex Court and submitted that the directions of the Apex Court treated the candidates in two categories. The names of the Page 15 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024 NEUTRAL CITATION C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024 undefined respondents were not in categroy of the tainted and therefore, were reinstated with 50% back-wages. The Department was expected to undertake 'Investigation' and find out the real suspects and then to initiate any Departmental inquiry. Instead, the Department without any reasons or ground took sample signatures of all the respondents who were reinstated and then after the report of the C.F.S.L. about variation in signature procedure to consider the respondents as tainted. The variation in signature after considerable period cannot be a ground basis to suspect that the petitioner has committed malpractice in fact the charge-sheet issued does not even specify what such malpractice is, a variation in signature cannot be a conclusion of malpractice alleged in the past.
7.2 It is submitted that to make a fair investigation as per the Apex Court order the Department had all the necessary material like the CCTV footage showing respondents who have appeared the attendance sheet with counter of invigilator and no evidence that the respondents have in fact not attended the exam but some dummy candidates appears.
7.3 It is submitted that the respondents have not reheard to the Central Administrative Tribunal, but responded to the Notice and demanded for the material available with the Department only to build up his defence, which the Department failed to supply therefore, the respondents approached the Central Administrative Tribunal.
7.4 It is submitted that the Department is acting in predetermined manner, by not supplying the respondents the material evidence available with the Department itself as it would be in favour of the respondents.
Page 16 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024NEUTRAL CITATION C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024 undefined 7.5 Learned Senior Advocate has drawn specific attention to the case of one Respondent; Atul Yadav in Special Civil Application No.19351 of 2023 and pointed out the opinion of the C.F.S.L. Annexure-B (Page-26) dated 27-12-2018, where the opinion cannot be said to be adverse to the respondent. It did not confirm any authorship or otherwise of the questioned signature still the respondent was issued charge-sheet at Annexure-E to the petition.
7.6 Learned Senior Advocate has then relied upon the decision of the Apex Court in case of Director, Steel Authority of India Limited v/s. ISPAT Khadan Janta Mazdoor Union reported in (2019) 7 SCC 440 to submit that where there are two views possible, in absence of any perversity, the view expressed by the Tribunal need not be interfered with.
7.7 Learned Senior Advocate has referred to the decision in case of Ankush Maruti Shinde v/s. State of Maharashtra reported in 2019 (15) SCC 470 and relies on Para-10.1 to 10.4. However, the judgment being in the realm of the Criminal Jurisprudence, may not be required to be referred to.
8. Learned Advocate Mr. Abhilash Clerk has argued that scope under Article-227 of the Constitution of India to interfere in Tribunal judgment is very limited particularly, the Department has failed to point out any jurisdictional error or perversity in the judgment of the Central Administrative Tribunal.
Page 17 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024NEUTRAL CITATION C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024 undefined 8.1 When the Central Administrative Tribunal found that initiating of inquiry and issuance of charge-sheet on completely wrong premise and that too under the guise of order of the Apex Court, where as it was never the direction of the Apex Court, then the Central Administrative Tribunal was justified to interfere.
8.2 It is submitted that before the Apex Court, the Department itself had passed a Vigilance Report for registering F.I.R. and therefore, the Apex Court directed investigation to find out real culprits, but instead of Undertaking fair investigation to find out real culprits, the Department found easy scapegoats in respondents by resorting to taking sample signature.
8.3 Learned Advocate has argued by referring to the Vigilance Report placed before the Hon'ble Apex Court. The Vigilance Report did contain names of tainted candidates and also other names of suspected candidates, but names of respondents here in were never there in the Vigilance report as suspects. So there was no scope to resort to specimen signature of the respondents for C.F.S.L. 8.4 Learned Advocate has then argued that the manner in which the charges is framed itself is indicative that punishment to respondents is a foregone conclusion and inquiry an empty formality.
8.5 It is argued that the respondents had demanded various materials relevant for inquiry, which the I.O. also ordered the Department to supply, but the Department has failed to supply thereby causing serious handicap to the respondents to defend themselves.
Page 18 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024NEUTRAL CITATION C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024 undefined 8.6 It is argued that the charge-sheet issued is vague and ambiguous and does not at all hint to any role played by the respondents in any illegality misconduct, mischief during the Recruitment exam. Hence, the inquiry is only for name sake.
8.7 It is argued that since 2017, the respondents are with the Department and there is no adverse report with regard to their service record. Reliance is placed on the decision of Indian Overseas Bank v/s. I.O.B. Staff Canteen Workers Union and Anr. reported in 2000 (4) SCC 245 to contend that the High Court does not exercise appellate jurisdiction to re-appreciate the evidence to arrive at a view different possible view then the Tribunal.
8.8 Lastly, it is submitted that the Department is predetermined to punish, is evident from the cases of Co-employee facing the same proceedings.
8.9 The inquiry was concluded and the I.O. exonerated finding no malpractice, but the Disciplinary Authority disagreed and terminated, wherein Original Application No.377/2022 is filed in the Central Administrative Tribunal.
9. In Special Civil Application No.21804 of 2023, learned Advocate Mr. Mehul Dhonde for the respondent has argued that the respondent is suffering from serious diseases, as a result of which, there is variation of signature. This contention of the respondents in Reply at Page-147 is not controverted by the Department. He has further submitted that the Page 19 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024 NEUTRAL CITATION C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024 undefined Department has issued cyclostyle inquiry proceedings without application of mind to individual case indicating the callous manner, in which the Department intends to proceed with the inquiry.
10. In rejoinder, learned Standing Counsel for the petitioner has argued that the Department has supplied all the relevant material on which the Department is to rely during inquiry. Therefore, the respondents cannot claim supply of documents on which the Department is not relying.
10.1 The argument of the respondents amounts to considering the defence of the respondents even when the stage of this defence has not reached.
10.2 It is submitted that whatever is the defence of the respondents, the same would be appreciated during the course of the Departmental Inquiry. Therefore, the Central Administrative Tribunal has erred in injusting the ongoing inquiry.
11. Having heard learned Advocates for the parties and having perused the documents on record, it appears that the challenge is to the Common Order of the Central Administrative Tribunal passed jointly in a group of Original Application filed individually by the respondents challenging the decision of the Department to issue a Show Cause Notice and a charge- sheet contemplating a Departmental Inquiry against the respondents.
11.1 The root cause is the alleged illegality having taken place in the Recruitment Exams for the post of Postal Assistant (PA)/Sorting Assistant (SA) at-least in 5 States including Gujarat. The action taken by the Page 20 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024 NEUTRAL CITATION C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024 undefined Department against individual respondents / employees, were subject of challenge in the earlier round of litigation, which has reached till Hon'ble Apex Court through following stages.
(a) The Departmental action was challenged by the employees before the Central Administrative Tribunal, Ahmedabad Bench.
(b) The Central Administrative Tribunal, Ahmedabad Bench decided in favour of the employees.
(c) Union of India challenges the decision before this High Court.
(d) The High Court decides in favour of the Union.
(e) The affected employees challenge the judgment of the High Court before Hon'ble Apex Court.
(f) Hon'ble Apex Court decides partly in favour of the employees.
(g) After the Apex Court's order, the Department initiate a fresh action. This fresh action is now the subject matter of challenge before the Central Administrative Tribunal primarily on the ground that the fresh action initiated by the Department is not in consonance with the directions of the Apex Court and is initiated absolutely wrong premise and with predetermined mind.
11.2 It will therefore be beneficial to immediately refer to the directions of the Hon'ble Apex Court in its order dated 13-07-2017. The entire Page 21 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024 NEUTRAL CITATION C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024 undefined order is reproduced in preceding Para-3.12. According to the directions, therein it is evident that the Apex Court has perused the Report of the Vigilance Committee and found that entire Exam was not vitiated and the suspects who had indulged in malpractice, have been identified. Against such suspects, the Apex Court provided the mode to proceed against.
11.3 The other category of persons were those who were not suspects of any malpractice, were ordered to be reinstated. It is the claim of the respondents- employees that they all belong to this category and were therefore, reinstated. For this category, The Apex Court provided liberty to the Department to take action against the employees of this category as upon 'Investigation'. It is found that they have indulged in malpractice.
11.4 The word used by the Hon'ble Apex Court is 'Investigation'. This word is dominantly used for the purpose of a Criminal Investigation. Therefore, according to this Court, what was contemplated by the Apex Court was a 'Criminal Investigation' to find out real culprits, who indulged in the malpractice.
11.5 This Court is inclined to hold so on the basis of one more aspect. 'The Report of the Vigilance Committee' perused by the Apex Court was titled as 'Vigilance Report for Lodging of FIR in case of PA/SA Recruitment Exam 2014 of Gujarat Circle (Revised)'. The report itself recommended registering of the FIR. In this context, when the Apex Court uses the word 'Investigation', it has necessarily to be understood initiation of 'Criminal Investigation' and after the Criminal Investigation, any of the employees is found to have indulged in malpractice, the Page 22 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024 NEUTRAL CITATION C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024 undefined Department is to act against.
11.6 The report itself consists of names registration no. Roll No. of such candidates, who are suspects. For Gujarat circle, 86 candidates were found prima facie suspectual of unfair means.
11.7 According to learned Advocate for the respondents, nowhere the names, registration no., roll no. of the respondents have been found in the Vigilance Report as suspects. This fact, the Department has not controverted.
11.8 At this stage, it would be appropriate to reproduce the relevant contents of the Report.
"3. It has been well established during the Vigilance inquiry that the Examination conducted by M/s CMC Ltd. had been severely compromised at all levels. Starting from the initial stage of registration of candidature on the CMC website, the company allowed various violations such as bulk registration from common e- mails and mobile numbers, allowing candidates to appear in multiple states in contravention of rules, leaking the answer keys of the question papers to some candidates in connivance with outsiders, not curbing large scale impersonation while conducting the Aptitude Test, Type Test and Data Entry Test and finally willfully violating the provisions of RFP and Agreement in allowing manual intervention and not following the automated evaluation process of the OMR scanning machines at the result preparation stage. The above lapses are enough to establish that the entire Examination process was severely compromised by the Agency at every stage in these five Circles and modus-operandi is such that it is impossible to find out as to who was benefitted because of these lapses /violations on the part of the Agency at the different stages of examination.Page 23 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024
NEUTRAL CITATION C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024 undefined 3.1 The foregoing details clearly indicate criminal breach of trust on the part of CMC, particularly Para 10.1 (vi) of the Agreement which states "Any breach of the aforesaid undertaking by CMC or anyone employed by it or acting on its behalf (whether with or without the knowledge of CMC) or the commission of any offence by the CMC or any one employed by it or acting on its behalf, as defined in Chapter IX of the Indian Penal Code, 1860 or the Prevention of Corruption Act, 1988 or any other Act enacted for the prevention of corruption." CMC also facilitated the above mentioned malpractices and use of unfair means by the 34 candidates and besides many others.
4. Police authorities are requested to register an FIR against M/s CMC Ltd for breach of various terms and conditions of the agreement/RFP/instructions of the Department for fair conduct of the examination, leakage of answer key/question paper in connivance of outsiders/candidates, laxity in supervision of exam allowing impersonation and violations of the provisions of RFP/Agreement by allowing manual evaluation through OMR scanning machine and declaring candidates with defective OMR sheets successful in the recruitment examination. Therefore, the following is requested to be investigated:
(i) Interrogation and investigation of suspected 86 candidates regarding use of unfair means to qualify in the exam, usage of common email ids/phone number, their exact relation/connection, inappropriate arrangement/understanding with the holder of suspected email ids/phone numbers. The details of these candidates including name, father's name, address, phone number, examination roll numbers, email IDs and phone numbers used during the registration are enclosed as Annexure-D.
(ii) Alleged breach of trust/leakage of answer key/ question paper & laxity in supervision of exam by allowing impersonation and violation of provisions of RFP/Agreement by manual evaluation through OMR scanning machine and declaring candidates with defective OMR sheets successful in the recruitment examination by the functionaries of M/s CMC ttd. to the suspected candidates through holders of the suspected e-mail accounts/phone numbers possibly located mainly in a few nearby Districts of Uttar Pradesh and Haryana. The details of the officers of M/s CMC Ltd including Page 24 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024 NEUTRAL CITATION C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024 undefined name, designation, phone number e-mail ID are enclosed (Annexure}.
(iii) Interrogation and investigation of the exact role of outsiders (holders of the suspected e-mail accounts/phone numbers) in the registration process/impersonation etc. of suspected 86 candidates, their role in circulation of the answer keys/suspected payment of illegal gratification by the suspected candidates/holders of suspected e-mail ids/mobile numbers, involvement of officers/functionaries of CMC Ltd. Investigation of email and mobile number data, computer data, financial transactions of the involved individuals. The available detail of the suspected outsiders are mentioned in relevant column in Annexure D."
11.9 In view of the aforesaid, it was expected as the Department to initiate Criminal Investigation, instead, the Department invented a Novel Method to take sample signature (100 signatures) of all the selected candidates of Gujarat Circle and send it to CFSL with specific observations in the forwarding letter that the exercise of taking specimen signature and sending to CFSL is under the directions of the Apex Court.
11.10 The CFSL report thus received with an opinion of difference/ variation in the signature were issued with impugned Show Cause Notice and the charge-sheet.
11.11 In the opinion of the Court, this action of the Department in not pursuing the Vigilance Committee Report and evolving a complete new procedure of 'Specimen Signature' is not in consonance with the directions of the Apex Court. In fact, it appears that deliberately, no further action was taken in the line of the Vigilance Committee Report and the reasons for not doing so though not on record, but are for any Page 25 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024 NEUTRAL CITATION C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024 undefined one to understand. It is not for the Court to comment especially, when the Court is examining the order of the Tribunal.
11.12 To consider the argument of the respondents on the issue of predetermined, it would be appropriate to reproduce the gist of Article of charge of one of the respondent and which is identical in all these matters are as under:
"Shri Adam Talab Jadeja had applied for recruitment to the post of Postal Assistant for the year 2013-2014 through online application process. Shri Adam Talab Jadeja was appointed in Govt. services and posted as PA Naliya S.O. w.e.f. 24-07-2018 in compliance of the verdict of Civil Appeal No.10513 of 2016 dated 13.07.2017 delivered by Hon'ble Supreme Court of India, New Delhi with clear direction in it that the Department is at liberty to take action against him who have violated the terms of examination and such violation will be treated as malpractice. During course of pre-appointment formalities, the sample signatures of Shri Adam Talab Jadeja have been taken and were forwarded to Central Forensic Science Laboratory (CFSL) Pune to ascertain the veracity of signature and thereby to find out the genuineness of the candidate i.e. Shri Adam Talab Jadeja. In turn, V. D. Yadav, Scientist "B" (Document), O/o CFSL, Pune furnished his/her opinion that:
"The person who wrote the blue enclosed signatures stamped and marked S57 to S62 did not write the red enclosed signatures similarly stamped and marked Q7, Q8 and Q9.
On the basis of result of CFSL report, it is revealed that there is material irregularities found on the face of basic records of recruitment in Government Department. As such, it is alleged that the said Shri Adam Talab Jadeja had indulged malpractice and mischief to secure appointment in Government Services."
11.13 It is this sole charge for which the respondents are to be Page 26 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024 NEUTRAL CITATION C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024 undefined proceeded departmentally. In the opinion of the Court, charge itself is such that it is a 'fate accomplish' for the respondents. However, there is no charge in the statement of imputation of misconduct or misbehavior, how variation in the specimen signature obtained after several years can be treated as evidence as misconduct during exam particularly where there is no imputation of impersonation. The Tribunal in the impugned order therefore, cannot be faulted in this regard.
11.14 Moreover, pursuant to the inquiry by letter dated 23-08-2021 (Annexure-R/13), Page-374, Special Civil Application No.18125/2023), the respondents demanded the documents relevant to the case like the CCTV footage of the exam centre, the attendance sheet with invigilator counter sign and other 18 documents. The Inquiry Officer by its Communication dated 26-08-2021 (Page-378) allowed application of the respondents and required production under Rule-14 of the CCS (CCA) Rules 1965. However, Assistant Director, Postal Services (Recruitment) Gujarat Circle under Communication dated 23-12-2020 (sic) declared that the document for the defence and this witnesses are not available.
11.15 Therefore, the Tribunal was justified when it observed in impugned order as under:
"The applicants had sought the copies of the some additional documents with a view to establish their presence in the centre at the time of taking examination. Respondents even denied the copy of the attendance sheet, which in our opinion was material in the matter. In view of the above, respondent committed grave error in not providing copies of relevant documents and not permitting defence witnesses on account of which, the defence of the applicants had been prejudiced."Page 27 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024
NEUTRAL CITATION C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024 undefined 11.16 Though a serious contention is raised by the Department that the interference of the Central Administrative Tribunal at the threshold of a Departmental inquiry is a jurisdictional error and that the case of the defence cannot be considered even before the Departmental Inquiry is begun. The Court will have to consider all the attending circumstances including the genesis of the Department action i.e. the Directions of the Apex Court.
11.17 The action contemplated will also have to be on fair procedure and opportunity to the respondent to defend his case. On one hand, the Department argued that the Department will rely only on the documents supplied to the respondents, on the other hand, does not supply other relevant material and documents demanded by the Respondents, though such material is important for the defence and is bound to be with the Department. This half hearted inquiry is bound to result in a futile exercise or at-least lack of opportunity for the respondents to defend their respective case resulting in violation of principles of natural justice. Therefore, the Central Administrative Tribunal has held that the respondents before the tribunal, the Union were not right in contending that the applicants would get opportunity to rebut the allegations levelled against them in inquiry. the tribunal therefore opined that, if the disciplinary proceeding is permitted to continue despite above said infirmities, then applicants would suffer irreparable loss. The allegation against the applicants are stigmatic in nature.
11.18 One more aspect brought to the notice during course of argument, which the Central Administrative Tribunal had no occasion to examine is the conduct of department. It is a case of the co-employees Page 28 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024 NEUTRAL CITATION C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024 undefined against whom the same charge-sheet was issued and qua them the inquiry proceeded only on the charge of 'variation in specimen signature' and the Inquiry Officer after due departmental inquiry, has held in its inquiry report that the charges against 'Shri Vikas Raj S.A.' are not proved. However, the Disciplinary Authority has given a Disagreement Note on I.O. report and punishment order dated 21-12-2021 is passed and Appeal (Departmental) is also dismissed, wherein in subject matter of challenge in O.A. No.377/2022 pending before the the Central Administrative Tribunal, Ahmedabad Bench which is evidence of a predetermined approach of the department.
11.19 In view of the aforesaid discussion and so also the reasonings given by the Central Administrative Tribunal, Ahmedabad Bench in order passed in Original Application No.127/2022 and connected matters dated 04-05-2023, does not need any interference. However, the Court may observe that, it is still open for the Department to institute any proceedings against the respondents, however, the same should be in conformity of the directions of the Hon'ble Apex Court particularly in its Order dated 13.07.2017 passed in Civil Appeal No.10513 of 2016 and allied matters.
11.20 Before parting, the Court may observe that by not observing the directions of the Apex Court by the Department regarding 'Investigation' and adopting a complete different track of 'Specimen Signature', the Department has allowed the persons responsible for malpractice to go scot-free. It is expected that the Department adopts corrective measures to trace out the real culprits to prevent such malpractice in public employment.
Page 29 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024NEUTRAL CITATION C/SCA/18023/2023 JUDGMENT DATED: 05/08/2024 undefined
12. In view of the aforesaid discussion, no case is made out for interference. Hence, all the petitions are hereby dismissed. Rule is discharged.
Sd/-
(A.Y. KOGJE, J) Sd/-
(SAMIR J. DAVE,J) PARESH SOMPURA Page 30 of 30 Downloaded on : Wed Aug 07 21:05:45 IST 2024