Central Administrative Tribunal - Jabalpur
Ravikant Ojha vs Union Of India Through The Secretary on 24 November, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.538 of 2011
Jabalpur, this Monday, the 24th day of November, 2014
SHRI G.P.SINGHAL, ADMINISTRATIVE MEMBER
SHRI ARVIND J. ROHEE, JUDICIAL MEMBER
Ravikant Ojha, s/o Shri Gendalal Ojha,
Aged about 43 years, Claims Tracer (Dismissed),
Central Railway, R/o Sehkho Ka mohalla, Near Lukman Chouraha,
Tikamgarh (M.P.) 472001. -Applicant
(By Advocate Shri Vipin Yadav)
V e r s u s
1. Union of India through the Secretary,
Ministry of Railway (Central) Government of India,
New Delhi 110006.
2. Senior Commercial Manager (c), 5th floor,
New Administrative Building, Platform No.1,
Chhatrapati Shivaji Terminus, Mumbai (Central Railway)-400008.
3. Deputy Chief Claims Officer, Central Railway,
5th floor, New Administrative Building, Platform No.1,
Chhatrapati Shivaji Terminus, Mumbai (Central Railway) 400008.
4. Chief Claims Officer, Central Railway,
5th floor, New Administrative Building, Platform No.1,
Chhatrapati Shivaji Terminus,
Mumbai (Central Railway) 400008. -Respondents
(By Advocate Shri N.S.Ruprah)
(Date of reserving order : 13.11.2014)
O R D E R
By Arvind J.Rohee (Judicial Member)-
The applicant approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 aggrieved by the order of penalty of removal from service imposed by the authorities, in a disciplinary proceedings and seeks to set aside the same.
2. The applicant was appointed on 16.01.1990 as Commercial Clerk in the office of the respondents as a Schedule Tribes (for short ST) candidate. On 26.12.2001, he was served with a major penalty chargesheet (Annexure A-1) alleging that he fraudulently obtained Caste Certificate showing him as belonging to ST category being Ojha by caste and thereby fraudulently secured a Government job and thus, cheated the Government. The applicant contested the disciplinary proceedings by filing a reply dated 24.5.2002 (Annexure A-2) denying the charges leveled against him as unwarranted. The Enquiry Officer, after due enquiry ruled that all the charges leveled against the applicant stand proved and submitted his report dated 31.5.2002 (Annexure A-3) to the respondent No.2, Disciplinary Authority. Its copy was then served on the applicant calling upon him to make representation if he so desires. A representation, denying the finding recorded by the Enquiry Officer, was made by the applicant. After considering the same, the Disciplinary Authority approved the finding recorded by the Inquiry Officer and passed the order dated 26.5.2003 (Annexure A-4) imposing major penalty of removal from service. This was challenged before the Appellate Authority, respondent No.3, who too by the order dated 11.9.2003 (Annexure A-5) confirmed the order of penalty imposed by the Disciplinary Authority. This led the applicant to challenge it further before the Revisional Authority, respondent No.4. But it met with the same fate vide order dated 20.09.2010 (Annexure A-6), thereby confirming the order passed by the Disciplinary Authority and the Appellate Authority.
3. According to applicant, since beginning he claims to be belonging to ST category being Ojha by caste, which is recognized by the presidential order and is applicable to the entire region of Madhya Pradesh by which Ojha caste is declared as ST.
4. It is alleged by the applicant that the impugned orders have been passed without giving proper opportunity of hearing to him and without there being any material on record against him. The impugned orders have been challenged on the following other grounds, viz;
(i) The enquiry officer has given the finding in respect to the caste of the applicant only on the basis of report of Tehsildar although Tehsildar was not examined by the enquiry officer and therefore orders impugned are bad in law and liable to be quashed.
(ii) The caste certificate was not found forged and was not cancelled by any authority and therefore order of removal is bad in law and liable to be quashed.
(iii) The enquiry officer has taken into the consideration, the case of the real sister of the applicant who was punished by the Chief judicial magistrate Tikamgarh, although she was acquitted by the Appellate Court by the judgment dated 21.2.2002 and was subsequently reinstated by the Department.
(iv) The matter of the applicant was not referred to the Caste scrutiny committee and only on the basis of the report of the Tehsildar impugned order has been passed although applicant belongs to the S.T. Community and therefore orders impugned are bad in law and liable to be quashed.
(v) The power vests with the caste scrutiny committee and therefore respondents have acted without jurisdiction in deciding the caste of the applicant and therefore orders impugned are without jurisdiction and therefore liable to be quashed.
(vi) The respondents have failed to prove the chares against the applicant and therefore impugned orders of removal and subsequent orders are bad in law and liable to be quashed.
(vii) The Tehsildar was not examined by the enquiry officer and the report was not exhibited by the Tehsildar and therefore reading the report of Tehsildar without any exhibition is bad in law and against the procedure and therefore entire evidence is not liable to be accepted and therefore impugned orders are bad in law and liable to be quashed.
(viii) The finding of the enquiry officer that Ojha caste comes under the Schedule Tribe Community only in Chhindwara, Seoni, Balaghat and Mandla only is totally perverse and against the presidential notification as per notification, it is applicable in the entire State of Madhya Prades not in a particular district, and therefore findings of the Enquiry Officer are baseless, perverse and against the presidential notification and therefore impugned orders are liable to be set aside.
5. On the above grounds, the applicant seeks the following reliefs:
(i) To issue a writ in the nature of certiorari orders dated 13.5.2003, 11.9.2003 & 20.9.2010 may kindly be quashed.
(ii) To issue a writ in the nature of mandamus respondents may kindly be directed to reinstate the petitioner with all consequential benefits.
(ii) Any other writ or direction as the Honble Court may deems fit in the circumstances of the case with awarding the cost of the proceeding.
6. On notice, the respondents appeared and by a common reply dated 9.2.2012 resisted the application denying all the adverse allegations, averments, contentions and grounds raised therein by the applicant. It is specifically denied that reasonable opportunity was not granted to the applicant to defend him in the enquiry proceedings. According to the respondents, necessary procedure was followed by the Inquiry Officer and all the three authorities above him, before penalty of removal from service was imposed/confirmed upon the applicant. The enquiry clearly reveals that the applicant has fraudulently obtained the caste certificate showing him as a person belonging to ST category, when in fact he was belonging to Other Backward Class (for short OBC) being Lohar, the caste of his parents.. The applicant failed to point out any illegality committed by the Enquiry Officer or the three authorities, who passed the impugned orders.
7. It is stated that based on Railway Boards letter No. E(D&A) 2000P/G6-30 dated 16.5.2001, a vigilance inquiry was conducted by the Railways into the allegations of appointment of the applicant by submitting a bogus caste certificate obtained by fraudulent means. On the advice of the vigilance department, the Disciplinary Authority served a major penalty chargesheet on the applicant, after due inquiry as per the provisions laid down in Railway Servants (Discipline & Appeal) Rules, 1968. The Inquiry Officer found the charges as proved and this is how the applicant was removed from service on proof of gross misconduct.
8. It is not disputed that the applicants sister was convicted for the offence under Section 420 of IPC for misrepresenting her caste in the same manner in which the applicant had done for getting the Government job. She was convicted by the judgement and order dated 1.12.1999 (Exhibit P-5 in the enquiry proceeding) by the Chief Judicial Magistrate, Tikamgarh in Criminal Case No.384/1996, State of M.P Vs. Smt. Madhur Ojha. Although, the said conviction was quashed by the Appellate Court purely on technical grounds. The fact, however, remains that the applicants sister was also belonging to OBC and not to ST. The order of acquittal dated 21.02.2002 (Annexure A-7) filed by the applicant clearly shows that it was purely on technical grounds for want of sufficient proof to establish he said offence. The mother of the applicant was also in Government service and it is shown that she belongs to OBC and not to ST category. The Enquiry Officer elaborately considered all these aspects in minute details and came to a correct conclusion. The standard of proof required in the disciplinary proceeding is based on preponderance of probability and it is not required to prove the charge against the delinquent employee beyond doubt as is required in any criminal prosecution. The applicant is, in fact, Lohar by caste which comes under OBC. However, he obtained the employment representing himself to be ST on the basis of the fraudulent caste certificate obtained by him. He was, therefore, rightly punished considering the grave nature of the charge. The applicant has not produced any notification issued by Government showing that Ojha caste is included in ST in Tikamgard district which is his native place. In fact Tikamgardh district is specifically excluded by the State Government so as to include any of the castes included under ST category under presidential order, on the basis of the clarification subsequently submitted by the Tehsildar, who issued the disputed caste certificate in favour of the applicant.
9. For the above reasons, the applicant is not entitled to any relief and the OA is liable to be dismissed.
10. On 13.11.2014, we have heard the oral submissions of Shri Vipin Yada, learned Advocate for the applicant and the reply arguments of Shri N.S.Ruprah, learned Advocate for the respondents on merit. We have carefully perused the pleadings of the parties and the documents relied upon by them in support of their rival contentions.
FINDINGS
11. It is pertinent to note that at the time when the disciplinary proceedings were initiated against the applicant and chargesheet was filed, he was serving in the officer of the respondents at Mumbai and nquiry was concluded there. Also the three authorities namely, the Disciplinary Authority, the Appellate Authority and the Revisional Authority all were from Mumbai and the impugned orders were passed by them at Mumbai. However, since the applicant was removed from service and it is not disputed that his native place is Tikamagarh, Madhya Pradesh, the provisions of Rule 6(1) and 6(2) of the Central Administrative Tribunals (Procedure) Rules are applicable. Since, the disputed caste certificate was issued by Tehsildar, Tikamgarh, cause of action also arose in part within the territorial jurisdiction of this Tribunal. However, since the applicant, after he was removed from service, shifted to his native place and since he was ordinarily residing there, this Tribunal has got jurisdiction to entertain the claim at the option of the applicant, the another forum being Bombay Bench of C.A.T. The OA, is therefore, not hit for want of territorial jurisdiction. Although the respondents have not raised any objection in this behalf, we deem it fit to consider this aspect before proceeding to take up the applicants claim on merit.
12. It is obvious from perusal of the chargesheet and the inquiry report that the following charges were leveled against the applicant vide Annexure I of the chargesheet:
ARTICLE-I He managed to fraudulently obtain schedule tribe community certificate No.6474/B-121/88 dated 29.2.88 from Tehsildhar, Tikamgarh (M.P.).
ARTICLE-II Though he did not belong to scheduled tribe community, he had applied against ST quota and in support of his application he produced ST caste certificate and fraudulently got employment in Railways against ST quota through RRB/Bhopal.
ARTICLE-III That the said Shri Ravikant Ojha, got himself posted on Jhansi division against the post reserved for ST candidate and thereby cheated the Railway Administration and also deprived the legitimate right of genuines ST candidate.
Thus, by the aforesaid act, he failed to maintain absolute integrity, devotion to duty and behaved in a manner of unbecoming of railway servant and thereby contravened Rule No.3.1(i), (ii) & (iii) of Railway service (Conduct) Rules 1966.
13. Annexure II of the chargesheet is the statement of imputation of misconduct/misbehavior in support of the above Articles of charges. Annexure III is the list of documents by which it is proposed to prove the charges, whereas Annexure IV of the chargesheet is the list of witnesses containing name of only one witness, namely, Shri Abdul Majid, Chief Vigilance Inspector (P) CST, Mumbai, as departments witness.
14. During the course of arguments, it was vehemently submitted by the learned Advocate for the applicant that since the alleged charge relates to caste of the applicant, it was the duty of the respondents to verify the caster certificate produced by him at the time when he joined the service with the respondents in the year 2001. However, they failed to take any step in this behalf and obviously relied upon the certificate produced by the applicant. It is only on some complaint filed against the applicant to the effect that he does not belong to ST category and has obtained a false certificate in this behalf, a vigilance inquiry was conducted, in which prima-facie material was collected against him, and hence, he was chargesheeted by the respondent No.2. According to the learned Advocate for the applicant, he never contended that he belongs to OBC, and hence, the certificate produced by him cannot be said to have been fraudulently obtained by him. The same was issued to him after due verification by the Tehsildar. It is also contended that since the matter pertains to the caste of the applicant, no disciplinary proceedings should have been initiated against him, without verification of his caste by the competent authority. For the purposes of this submission, he relied upon the decision of the Honble Supreme Court in a case of Dayaram Vs. Sudhir Batham and others, (2012) 1 Supreme Court Cases 333. In that case a reference was made to the directions Nos.1 to 15 issued by the Honble Supreme Court in a landmark decision of Madhuri Patil Vs. Commissioner, Tribunal Development & Others, (1994) 6 Supreme Court Cases 241. The following questions were raised for consideration before the Honble Supreme Court namely:
(i) Whether Directions 1 to 15 in Madhuri Patil case, (1994) 6 SCC 241 were impermissible, being legislative in nature? (ii) Whether Directions 11 and 12 in Madhuri Patil case, which exclude the jurisdiction of the civil court to entertain suits challenging the decisions of the Caste Scrutiny Committees, violate Section 9 CPC? (iii) Whether Direction 13 in Madhuri Patil case barring intra-court appeals against decisions of Single Judges of High Courts in writ petitions, when such appeals are specifically provided for in State enactments/Letters Patent of various High Courts, is valid and proper?
15. Upholding all the directions issued in Madhuri Patils case (supra) and modifying only the second part of direction NO.13, it was held in the above referred case of Dayaram as under:
1. Genuine candidates are denied admission to the educational institutions or appointments to posts under the State, for want of social status certificate. Ineligible or spurious candidates who falsely gained entry resorted to dilatory tactics and created hurdles in completion of the inquiries by the Scrutiny Committee, regarding their caste status. Therefore, the caste certificates issued should be scrutinized with utmost expedition and promptitude. To streamline the procedure for the issuance of caste (social status) certificates, their scrutiny and approval, the Supreme Court issued the fifteen directions in Madhuri Patil case.
2. The Supreme Court has a constitutional duty to protect the fundamental rights of Indian citizens. Whenever it is found that the socio-economics rights of citizens are required to be enforced, but there was a vacuum on account of the absence of any law to protect and enforce such rights, the Supreme Court has invariably stepped in and evolved new mechanisms to protect and enforce such rights, to do complete justice. This has been done by re-fashioning remedies beyond those traditionally available under writ jurisdiction by issuing appropriate directions or guidelines to protect the fundamental rights and make them meaningful. In exercise of the powers under Article 32 read with Article 142 in our constitutional jurisprudence such exercise is essential to fill the void in the absence of suitable legislation to cover the field.
3. The directions issued in Madhuri Patil case are intrinsic to the fulfillment of fundamental rights of backward classes of citizens and are also intended to preclude denial of fundamental rights to such persons who are truly entitled to affirmative action benefits. In giving such directions, the Supreme Court neither re-wrote the Constitution nor resorted to judicial legislation. The judicial power was exercised to interpret the Constitution as a living document and enforce fundamental rights in an area where the will of the elected legislatures have not expressed themselves.
16. It is obvious that on the basis of the decision in Madhuri Patils case (referred supra), the Caste Scrutiny Committee/High Power Committee was constituted by State Governments for verification of the caste certificates issued by the revenue authorities particularly to the persons claiming to be and belonging to the Schedule Caste and Schedule Tribe categories. A duty is cast upon such Committee to make enquiry about the social status of the claimant of caste certificate and to verify if he/she really belongs to SC or ST after considering the relevant presidential orders issued by the Central Government and the notifications by the State Government in this behalf and material, documentary evidence produced on record to declare the genuineness of the caste certificate. Even the jurisdiction of Civil Court is excluded for challenging the decision of the Committee and Writ Petition to the Honble High Court under Article 226/227 of the constitution or Special Leave Petition under Article 32 of the constitution to the Honble Supreme Court are the only two forums prescribed for this purpose. However, there is nothing in the above referred Dayarams case to indicate that the Government department cannot initiate any disciplinary proceedings against such employee on the ground that a false or fabricated certificate was obtained by him for securing the job. So far as the role of Caste Scrutiny Committee/High Power Committee is concerned, it has been observed as under in the above referred case of Dayaram:
After giving due opportunity to the candidate to place any material in support of his claim, and after making such enquiry as it deems expedient, the Scrutiny Committee considers the claim for caste status and the vigilance cell report, as also any objections that may be raised by any opponent to the claim of the candidate for caste status, and passes appropriate orders.
The Scrutiny Committee is not an adjudicating authority like as court or tribunal, but an administrative body which verifies the facts, investigates into a specific claim (of caste status) and ascertains whether the caste/tribal status claimed is correct or not. Like any other decisions of administrative authorities, the orders of the Scrutiny Committee are also open to challenge in proceedings under Article 226 of the Constitution. Permitting civil suits with provisions for appeals and further appeals would defeat the very scheme and will encourage the very evils which the Supreme Court wanted to eradicate in Madhuri Patl case.
17. This being so, it is obvious that there is no bar for initiating any disciplinary proceeding against the Government employee for the charge of obtaining a false/fabricated/bogus caste certificate by using fraudulent means. However, we are in agreement with the submission of learned Advocate for the applicant that whether the caste is valid or not can only be looked into or considered by the Caste Scrutiny Committee/High Power Committee and till then, enquiry should not have been initiated against the applicant or if initiated it should have been stayed till the report of the Caste Scrutiny Committee/High Power Committee is received in the matter, on reference made by the Disciplinary Authority. Although the enquiry was initiated on vigilance complaint, it was still open to the respondent No.2 to keep the enquiry pending and to refer the disputed caste certificate to the Caste Scrutiny Committee/High Power Committee for its due verification. There is also nothing on record to show that after obtaining the caster certificate, the applicant made any effort to get it verified from the Caste Scrutiny Committee/High Power Committee. Every holder of caste certificate claiming to be belonging to SC or ST category is under an obligation to refer the same to the Scrutiny Committee/High Power Committee for its verification, even if the same is not disputed by anybody. This is so because the Caste Scrutiny Committee/High Power Committee is the only competent authority to declare the genuineness of the caste mentioned in the certificate. This point was not considered by the Inquiry Officer or by three authorities above him before holding that the charges leveled against the applicant are proved and while confirming the penalty imposed upon him.
18. During the course of arguments, the learned Advocate for the applicant placed reliance on the presidential order published by the Ministry of Law Notification No. S.R.O. 510, dated the 6th September, 1950, Gazette of India, Extraordinary, 1950, Part II styled as the Constitution (ST) Order 1950, which was amended from time-to-time and it contains list of castes, which are included under SC/ST category and particularly Part VIII entry No.16 thereof in which various castes including Ojha, is stated to be belonging to ST for entire region of Madhya Pradesh. However, it appears that the State Government is also empowered to issue notification restricting relevant caste mentioned in the said presidential order for certain district only. The Inquiry Officer relied upon the subsequent letter dated 13.6.2001 issued by the Tehsildar, in which he clarified that Ojha caste is treated as ST community for certain district only viz. Chhindwara, Seoni, Balaghat, Mandla etc. and there is no mention of Tikamgarh district in the M.P Governments order, which is the native place of the applicant. However, we are of the considered view that this aspect of the case can be considered only by the Caste Scrutiny Committee/High Power Committee after due inquiry, which is the only competent authority to rule on validity of caste, in view of the decision of Honble Supreme Court. As such it can safely be inferred that firstly the Enquiry Officer and later on the three authorities were wrong in holding that applicant does not belong to Ojha caste and cannot be termed as ST.
19. During the course of the arguments, the learned Advocate for the applicant also relied upon the decision of the Honble M.P. High Court, Jabalpur in a case of Archana Mourya Vs. M.P. Bhoj Open University through its Registrar, 2012 (1) M.P.II.T.31. However, perusal of the said decision clearly shows that facts of the case are totally different in which the petitioner claimed to be SC category although at the initial stage, she had disclosed that she belongs to General category, but her status was changed to ST after her marriage with a person belonging to SC. In that case also, it was held that enquiry into status of a person as SC candidate can only be made by a Caste Scrutiny/High Power Committee constituted by the State Government. Same logic will be applicable to the present case in which caste of the applicant is disputed and if the same comes under ST category.
20. As against this, the learned Advocate for the respondents relied upon the decision of the Honble Supreme Court in a case of Regional Manager, Central Bank of India Vs. Madhulika Guruprasad Dahir and others, (2008) 13 SCC 170. In that case it was held that when the appointment is based on false caste certificate, the same is held to be invalid despite long delay taken by the Scrutiny Committee or that appointee had put in long service meanwhile. It is further held that equity, sympathy and generosity have no place in such situation. It cannot be said that although the applicant had put up more than 11 years of service when he was chargesheeted, on this sole ground no inference can be drawn in favour of the applicant or against him. There is nothing on record to show that during pendency of the enquiry from 26.12.2001 when the chargesheet was filed, till disciplinary proceeding was terminated by the impugned order on 26.5.2003, imposing penalty of removal on the applicant, he was put under suspension, has made any request to the Disciplinary Authority to refer the case to the Caste Scrutiny Committee/High Power Committee of his native District. The Enquiry Officer or Disciplinary Authority also did not prefer t make any such reference.
21. Perusal of the impugned order passed by the three authorities clearly show that they have not recorded any reasons, discussing the specific grounds raised by the applicant before them and they simply relied upon the well reasoned and exhaustive order passed by the Inquiry Officer to come to a conclusion that the charges are proved against the applicant. In any case, since the charge is leveled against the applicant, we are of the considered view that this is a fit case for being remitted back to the Disciplinary Authority with certain directions. We, therefore, proceed to pass the following order:
22. (a). The OA is allowed.
(b). The impugned orders passed by the respondent Nos.2, 3 and 4 at Annexure A-4, A-5 and A-6 respectively imposing/confirming penalty of removal from service on the applicant are set aside.
(c). However, the matter is remitted back to the Disciplinary Authority respondent No.2 with a direction to make a reference to the concerned Caste Scrutiny Committee/High Power Committee of Tikamgarh District annexing the original caste certificate produced by the applicant along with all other relevant documents pertaining to service, within a period of four weeks from the date of receipt of a copy of this order.
(d). On receiving such reference, the concerned Caste Scrutiny Committee/High Power Committee shall proceed to take prompt, effective and necessary steps by giving precedence over all other pending matters before it and full opportunity to the applicant to put up his claim and then shall pass a reasoned order regarding verification of the caste certificate produced by the applicant considering if he belongs to Ojha caste and if the said caste comes under ST category, forward the order to the respondent No.2 for taking further necessary action in the matter, within a period of six weeks from the date of receipt of the reference from the respondent No.2.
(e). On receiving the order from the Caste Scrutiny Committee/High Power Committee, the respondent No.2 shall forward its copy to the applicant and shall give him reasonable opportunity of hearing, and then shall pass a reasoned and detailed order considering all the grounds raised by the applicant and also the order passed by the Caste Scrutiny Committee/High Power Committee, within a period of eight weeks from the date of receipt of the order from the said committee.
(f). Since the impugned orders are being set aside, as a consequence of it, the applicant is reinstated in service. However, he shall be put under suspension from the date he reports to the respondent No.2, where he was previously serving at the time of his removal and then respondent No.2 shall issue the necessary order of suspension, which will be applicable from that date. The applicant will be entitled to get the suspension allowance, as per rules, till the enquiry is finally concluded by passing the order by the respondent No.2.
(g). During the period of suspension, we direct that the presence of the applicant at Mumbai Headquarter shall not be insisted considering the long distance between Mumbai and Jabalpur. We, however, direct that the applicant shall attend the office of the respondent No.2 once in a quarter on the fixed date by the respondent No.2, on which date the amount of suspension allowance shall also be paid to him.
(h). Since the matter is being remitted back, we have not expressed any opinion on merit of the case, and the respondent No.2 shall not get influenced by any observation made in this order and he will be at liberty to take his own decision in the matter, as per law.
(i). The respondent No.2 is also directed to forward copy of this order to the concerned Caste Scrutiny Committee/High Power Committee along with the reference letters for its perusal. Copies of enquiry papers, report of the Inquiry Officer or the orders passed by the three authorities shall not however be forwarded to the Committee.
(J). In case the applicant still has any grievance on passing the order by the Disciplinary Authority, he will be at liberty to challenge the same before the appropriate forum.
(k). Although the matter is being remitted back and the applicant is reinstated, it is hereby directed that he shall not be entitled to get back-wages for the period from 26.5.2003, the date when respondent No.2 passed the impugned order of removal from service, till he reports to the respondent No.2, and is put under suspension.
(l). In the facts and circumstances of the case, the parties are directed to bear their respective costs of this OA.
(Arvind J. Rohee) (G.P.Singhal) Judicial Member Administrative Member am 15 OA No.538/2011 Page 15 of 15