Central Administrative Tribunal - Jaipur
Damodar Singh Gunawat vs Navodya Vidyalaya Sanghathan on 30 September, 2021
i 2A. No, 3327/2015 CENTRAL ADMINISTRATIVE TRIBUNAL JAIPUR BENCH, JAIPUR Original Application No. 337/2015 Order reserved on : 24.09.2021 Date of order: et Leseees tt CORAM: 3O-9 x] HON'BLE MR. DINESH SHARMA, MEMBER (A) HON'BLE MRS. HINA P. SHAH, MEMBER (J) Damodar Singh Gunawat S/o Late Shri Amol Singh Meena, aged about 42 years, R/o Vill. & Post Gurdah (Chowki Ka Pura), Tehsil Mandrayal, Distt. Karauli (Raj.) .. Applicant (By Adv: Shri M.K. Meena with Shri Sidharth Jain proxy for Shri R.D. Meena) Versus 1. Commissioner, Navodaya Vidyalaya Samiti, B-15, Institutional Area, Sector-62, Noida, District Gauttam Budh Nagar (Uttar Pradesh) 201307. 2. Joint Commissioner (Personnel), Navodaya Vidyalaya Samiti, B-15, Institutional Area, Sector-62, Noida, District Gauttam Budh Nagar (Uttar Pradesh) 201307. 3. Dy. Commissioner, Navodaya Vidyalaya Samiti, Jaipur Region, Regional Office-18, Sangram Colony, Mahaveer Marg, C-Scheme, Jaipur-302001. 4, Principal, Jawahar Navodaya Vidyalaya, Jat Nagla, Tehsil Hindaun City, Distt. Karauli (Raj.). .... Respondents (By Adv: Shri Hawa Singh) 2 0.4, No. 3237/2015 Order Per: Dinesh Sharma, Member (A)
In this case the applicant, who was employed as a cook by the respondent organization by order dated 18.02.2006 (Annexure-A/5), has challenged the order of his termination dated 06.05.2015 (Annexure-A/3) following an inquiry into charges (Annexure-A/1) of having produced forged experience certificates (Annexure-A/4). The applicant had produced these certificates, about his having worked at Hotel Hawa Mahal, Hotel Holiday Inn and with a private Contractor running the canteen of Hindustan Zink Ltd (Annexure-A/4 collectively), at the time of getting employment, to fulfil the condition regarding five years experience as specified in the employment notification. Though a number of grounds are mentioned, the main grounds for challenging the punishment are as follows:
a) The disciplinary inquiry was initiated and the punishment is imposed by an authority higher than that specified under the rules. The rules (Annexure-A/12) provide that the Principal of the school should have been the disciplinary authority and the Deputy Commissioner the appellate authority. The initiation of inquiry (including issue of show cause notice dated 25.10.2010 at Arnexure-A/6) and the 3 imposition of punishment by the Dy Commissioner (Appellate Authority) is incorrect and it amounts to denial of an opportunity to appeal to the applicant.
b) The inquiry process and the findings are vitiated since the persons who issued the documents based on which the charges are based, were not examined during the inquiry to prove the veracity of these documents. These O documents are shown to have been proved through the witnesses Sh. Rakesh Khanna (SW-
1), Sh. Sitaram Meena (SW-2) and Sh. N.L. Mehta (SW-3), who are employees of the respondents and not independent witnesses who authored the documents. This is wrong and it amounts to denial of opportunity to the . e applicant to defend himself by questioning those witnesses.
c) The FIR with the police booked against him for producing forged documents has been closed and an FR has been lodged since no proof of such criminal offence was found by the police.
d) The alleged act of forgery is not a misconduct and it cannot amount to failure to maintain devotion to duty as mentioned in Rule 3(1)(ii) of the conduct rules.
| | o.a.o.357/2015
2. The applicant has alleged that the experience certificates produced by him were not forged and the finding to the contrary based on documents procured by the respondents, without properly establishing the correctness of those documents is wrong and hence the charge-sheet (Annexure-A/1), the inquiry report dated 22.05.2014 (Annexue-A/2) and his termination order dated 06.05.2015 (Annexure-A/3) should be set aside.
3. The respondents have replied that on the basis of a preliminary inquiry conducted by the then Assistant Commissioner, NVS, it was found that the applicant had never worked at Hotel Hawa Mahal and at Hotel Holiday Inn. The letters issued by these hotels are enclosed at Annexure-A/4. It was also found that the Canteen Contractor who had issued certificate for the applicant for the period February 1998 to March 2005 was himself not a contractor between the year 2002 and the year 2005. The inquiry has been conducted as per the procedure during which the applicant has been given and he has availed sufficient opportunity to defend himself. He did not raise any objection regarding the procedure during the inquiry or about the issuing of charge sheet by the Deputy Commissioner instead of the Principal of the N.V.S. The Deputy Commissioner has not acted as an_ inquiry authority but as a disciplinary authority. The reply states that the rules permit institution of an inquiry by a "Higher a hatwide ee Et ie o.4.o.397/2088 Disciplinary Authority" and there is no denial of Article 311 of the Constitution in it. The imposition of punishment by the Dy. Commissioner (Higher Disciplinary Authority than Principal) did not amount to denial of opportunity to appeal as the applicant could have filed an appeal before the Joint Commissioner, but he did not opt for it and has come before this Tribunal. The reply denies any procedural error in proving the documents through SW-1, SW-2 and SW-3, as they were the relevant witnesses. The reply states that the criminal proceedings and departmental inquiry are totally different and the police inquiry is not the fact finding inquiry.
4. The applicant has filed a rejoinder denying the applicability of the "Higher Disciplinary Authority" rule, re- asserting that the documents filed by him were not forged, and reiterating the points mentioned in the Original Application.
5. The matter was heard on 24.09.2021. Learned counsel for the applicant vehemently argued that the undisputed facts of this case shows bias or mala-fides. The job as a cook required only 5 year's experience as cook which the applicant had and had produced proof by way of certificates issued from the persons he was engaged. These certificates are now being shown to be forged on the basis on documents alleged issued by persons who did not prove these documents in the inquiry conducted a ' i { whordtwendeaia Gat Mac ete ee ee SEM eee ee net i ct, 6 against the applicant. The police did not find any evidence of forgery and closed the case. In this situation, charges framed and punishment given by an incompetent authority on the basis of an inquiry which found the charges proved on unsubstantiated evidence, should be set aside. The learned counsel cited decisions of the Hon'ble Apex Court in Surjit Ghosh Vs Chairman and Managing Director, United Commercial Bank and ors (in Civil Appeal No 1338 of 1988, decided on 06.02.1995), Union of India Vs. BV Gopinath and related cases in Civil Appeal No. 7761 of 2013; and the Judgments of Allahabad High court in State of UP and ors Vs Chinta Haran Pathak (in writ petition no 5435 of 1993, decided on 31/05/1995) and in Bharat Lal Vs State of UP and ors (in Civil Misc Writ Petition No. 13725 of 2005). All these decisions support quashing of punishments/disciplinary action when the action was not approved by the appropriate competent authority/loss of opportunity to appeal due to imposition of punishment by the appellate authority. The learned counsel for the respondents argued that the punishment can be awarded by an authority higher than the specified disciplinary authority and such action is not vitiated if opportunity to file appeal is available as it is in the case before us. The courts/Tribunals should not interfere in a matter of disciplinary action and substitute their judgment for the judgment of the inquiry officer/disciplinary authority, if the | $ 1 cept ge yt ee . ae fo.
Z action has been taken following the prescribed procedure and sufficient opportunity has been given to the charged officer to defend himself. The certificate produced by the applicants in this case were obviously false or forged since the places where the applicant has alleged got his work experience have categorically denied having any evidence of it. As the applicant got his job on the basis of such obviously forged certificates, he has been rightly punished with termination. The counsel produced copies of the O following judgments in support of his arguments:
a) The Administrator, Union Territory of Dadra & Nagar Haveli Vs. Gulabhia M. Lad in Civil Appeal No. 3933/2010 dated 28.04.2010 decided by the Hon'ble Supreme Court.
b) Krishana Hare Gaur Vs. Vinod Kumar Tyagi & Ors. in Civil Appeal No. 1755/2015 dated 11.02.2015 decided by the Hon'ble Supreme Court.
c) Harpal Vs. The Presiding Officer, Labour Court, VI, Delhi & Anr in WP (C) No. 6327/1999 dated 03.01.2007 decided by the Hon'ble High Court e of Delhi.
d) Ved Prakash & O.S. Gautam Vs. The Food Corporation of India in WP (C) No. 961/2003 dated 07.09.2005 decided by the Hon'ble High Court of Delhi.
d) Balbir Chand Vs. The Food Corporation of India Ltd. & Ors dated 16.12.1996 decided by the Hon''ble Supreme Court.
e) U.P. Power Corpn. Ltd. V. Virendra Lal, (2013) 10 Supreme Court Cases 39.
6. These judgments are in support of the respondents' contention that once an appointment is found based on bogus certificates, it is liable to be cancelled (The 8 Administrator, Union Territory of Dadra and Nagar Haveli Vs Gulabia M Lad; Harpal Vs the Presiding Officer Labour Court (supra). The judgments in Ved Prakash and OS Gautam Vs The Food Corporation of India, Balbir Chand Vs the FCI, UP Power Coperation Vs Virendra Lal through LRs (supra) support the contention regarding validity of action taken by authority higher than the appointed authority where the opportunity of appeal is not lost.
7. We have gone through the pleadings, heard the arguments and also perused the decisions cited by both the parties. We agree with the argument of the learned counsel for the respondent that the scope of judicial intervention in matters of disciplinary action is limited. We should not be substituting our judgment for the judgment and the findings of the competent authorities in the absence of any illegality, incompetence (legal), mala-fides, @- denial of natural justice, absence of a sufficiently reasoned and speaking order or any such serious error in arriving at those findings which may lead to patent injustice. Keeping this in mind, we observe that there are two major issues in this matter. The first is whether the termination of the applicant by an authority higher than the disciplinary authority is legally permissible and correct. The second is whether the findings of the inquiry officer about his having produced forged certificates, has been arrived at on es :
Gi 3 O.A, No, 3937/2015 proper appreciation of evidence giving adequate opportunity to the applicant to defend himself.
g, On the first issue, based on the decisions cited and produced by the learned counsel for the respondents (listed at paragraph 5 above), we have no hesitation in concluding that the issue of show cause notice and the imposition of punishment by an authority higher than the prescribed disciplinary authority under the rules, is not illegal. Since there were avenues of appeal available by way Of approaching the Joint Commissioner (which the applicant has not availed), there has, apparently, been no denial of opportunity to file an appeal. The decisions cited by the applicant (quoted at para 5 above), had different facts and background and the imposition of punishment had resulted in denial of an opportunity for appeal, where such appeal had been provided under the relevant rules. Thus, we do not find anything illegal or seriously wrong in the disciplinary action initiated and the punishment imposed by the Dy. Commissioner (an authority higher than the Principal) in this case.
9, We have much lesser scope for intervention for deciding the second issue about correctness of the finding arrived at by the inquiry officer. The learned counsel for the applicant argued that the documents that form the core of the charges of forgery have not been proved before the inquiry officer by examining the witnesses that 4 10 0.4, No, 237/2015 executed these documents. The learned counsel cited the decision of the Principal Bench of this Tribunal in S K Mishra Vs Union of India (in O.A. No. 332/2003, decided on 22/04/2004) and that of the Hon'ble Supreme Court in Life Insurance Corporation of India and Anr Vs Ram Pal Singh Bisen (2010) 4, Supreme Court Cases, 491], in port of his claim that this is a fatal error in the sup ppreciation of evidence. The applicant had produced a documents showing his experience and the police did not find any evidence of these being forged following the FIR lodged in this regard. However, another set of documents (annexure-R/3 and R/4) were used by the inquiry officer to come to a finding about the forgery. These documents (Exhibited as SE-2 and SE-5), have been shown to have been proved by evidence of these officers who got these documents from these sources and not by the persons who executed these documents. The applicant had pointed out about this lapse in his written statement made to the Deputy Commissioner (Annexure-A/10). Even the third certificate issued by the canteen contractor (which the learned counsel argued was itself sufficient to prove 5 years experience) has been found to be forged on the basis of an indirect evidence (report about this contractor not having the contract with the Hindustan Zinc for some of the period covered by the applicant's experience certificate). Such finding about the experience certificate qa being forged g based on inferences from a set of lett ers issued by di y different persons who were n ot even examined i the learn ed counsel here. The main charg e of produci cing forged certificates is based on these letter Ss and thus these the main doc | uments on which the convicti ion is based are As decided by the Hon'ble Suprme Court i : -_ in the Ram Bis m singh Bisen's cas© (supra), a punishment b . ased on th e e doc i cor umentary evidence, which is not properly | proved by examini I | y ng witnesses executing tho "e " se documents i ments were admi itted by the charged offi icer. In th e sustained i even if it is found that at those docu the findings of the inquiry officer (and th at of the disciplinary authorities based on such find inding) suff er from a serious lapse of procedure making it a fi inding ba sed on incorrect and im proper appreciation of evid vidence . The e agains oli charge aga! st the applicant was not regard arding not havin g the required experience but of employers on the basis of forged vvotnane meres me nay has established this forgery n ence document. eve but on documents which - on any direct exhibited (through examination of the rele 'not Properly vant witnesses executing these d e documents). The poli ice did n ot find a hy evidence of forgery gery. i ue tha It is true that th t the standard indards of 12 OA. No, 337/2015 a t 5 _para criminal prosecution and the disciplinary action are different. In this case, the applicant is being terminated not because of any misconduct during his employment, not even on a charge of acquiring a job without having the necessary experience, but on imputation of forgery which ct. If found true, his termination on is a criminal miscondu ge is definitely sustainable, as found in various such char Hon'ble Higher Courts mentioned in decisions of the it is not sustainable when the para-5. However, punishment is being imposed on the basis of inferences on documents not properly proved during an inquiry based ing the person a reasonable chance to and thus depriv d himself. The second issue, mentioned in para 7 defen above, thus, goes in favour of the applicant.
10. In conclusion, for reasons elaborated in the above graphs above, we cannot sustain the findings of guilt i (Annexure-A/2) and the termination of the applicant vid ide order dated 06.05.2015 (Annexure-A/3) following the se findings. We, therefore, quash these and direct th e respondents to reinstate the applicant. It is f : or the respondents to decide whether they sti y still want to j | } persist with the inquiry following the charge-sheet at this | | IS length of time. The Original Application is disposed of accordingly. There wo | | Duld be no orders as to costs.
(Hina P. Shah) Member (3) (Dinesh Sharma) Member (A)