Central Administrative Tribunal - Delhi
Shri Mahender Kumar vs Union Of India on 8 December, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.1715/2009 New Delhi, this the 8th day of December, 2010 Coram: Honble Mr. Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Shri Mahender Kumar, Age 53 years, S/o Shri Nabbu Singh, R/o K-996, Jhangirpuri, Delhi 110 033 Applicant (By Advocate: Shri S.K. Gupta) VERSUS 1. Union of India Through Secretary, Department of Posts, Ministry of Communication and IT, Ashoka Road, New Delhi 2. Chief Post Master General, Megdhoot Bhawan, Jhandewala, New Delhi 3. Director Postal services, Delhi Circle, New Delhi 01 4. Senior Superintendent of Post Offices, New Delhi (South East Division), New Delhi 03 5. Enquiry Officer, C/o Senior Superintendent of Post Offices, New Delhi (South East Division), New Delhi 03 Respondents (By Advocate: Shri Amit Anand) O R D E R
By Dr. Veena Chhotray:
The applicant, an ex-Postal Assistant under the Union Department of Posts, Ministry of Communication & IT, has been dismissed on charges of obtaining appointment under the Scheduled Tribe category by a false declaration and submitting a forged certificate. This is after initiating a major penalty proceeding under the CCS (CCA) Rule 14. The OA seeks the following reliefs:-
Quashing the inquiry report dated 11.2.2004 to the extent that charge no. 2 has been proved.
Quashing the orders of the Disciplinary Authority dated 15.9.2004 and of the Revisionary Authority dated 30.3.2009.
Direction for reinstatement with all consequential benefits.
Passing of any other and further orders deemed fit.
We have carefully considered the submissions of the learned counsels, Shri S.K. Gupta and Shri Amit Anand representing respectively the applicant and the respondents. Further, we have considered the material on record.
2. The applicant, who had been appointed as a Clerk (in the ST category) under the Postal Department in the year 1978, had in his application submitted in the year 1977 declared himself as a Scheduled Tribe candidate and also submitted a Community Certificate to that effect. The applicant belongs to AHERIA community from District Alwar in Rajasthan State, which has not been notified as an ST.
By a Charge Memorandum dated 18.4.2001, a major penalty disciplinary proceeding under the CCS (CCA) Rule 14 was initiated against him levelling two charges. As per Charge-I, while applying for the post, the applicant had mentioned his caste as AHERIA and wrongly declared himself as a member of Scheduled Tribe Community, despite a clear warning in the Attestation Form. As subsequently it was found that this caste is not specified as ST community in the Constitution (Scheduled Tribes) Order 1950, the applicant was alleged with suppressing the factual information and seeking Government employment by producing forged document. The Charge-II pertained to the applicant having submitted a Certificate in support of his ST status purported to have been issued by Tehsildar, Laxmangarh, Alwar. On verification through the District Magistrate, it had been informed that the said caste certificate had not been issued by the Office of the aforesaid Tehsildar.
3. After a regular inquiry, in which the delinquent had participated, the I.O. held the charge-I of suppressing the factual information in his application and Attestation Forms as not proved, but charge-II of having enclosed a bogus Caste Certificate as proved (Annex A/1). The Disciplinary Authority after considering the inquiry report and the representation against it by the delinquent passed an order dated 15.9.2004, imposing the penalty of dismissal from service which shall ordinarily be a disqualification for future employment, under the CCS (CCA) Rule 12 (Annex. A/3). As per the finding of the DA, the IO had followed the prescribed procedures properly and considering that in departmental enquiries the standard of proof required is preponderance of probability, the contentions of the delinquent were not found to be meriting serious consideration. Besides, the DA had referred to the DOPT OM dated 19.5.1993 which provided that in case it was found that a Government servant had secured appointment by furnishing false information or producing a false certificate, after conducting an enquiry under CCS (CCA) Rule 14, on the charges being proved, such an employee should be removed for dismissed from service.
The punishment of dismissal has been upheld by the Revisionary Authority which by a detailed order dated 30.3.2009 has rejected the Revision Petition dated 26.5.2008. This has occasioned the present OA.
4.1 While, the main emphasis of the learned counsel representing the State would be on the basic illegality of the applicants claim, in as much as admittedly the caste in this case had not been promulgated as a Scheduled Tribe by a Presidential declaration under Article 342 of the Constitution; the applicants learned counsel would seek to challenge the impugned action on grounds of certain alleged procedural infirmities. The learned counsel, Shri Amit Anand would argue that by the very reason that the applicant did not belong to a community declared as Scheduled Tribe, the foundation for any entitlement on that score would collapse. The learned counsel would also argue that the appointment in this case was patently illegal and non est in law.
4.2 On the other hand, the learned counsel Shri S.K. Gupta would submit that the applicant had legitimate claims for consideration. It would be submitted by the learned counsel that the charge of the applicant suppressing any factual information while applying for the post (Charge-I) had not been held as proved by the IO. Even with regard to the second charge, which had been held as proved in the Inquiry Report, the learned counsel would raise serious objections about the maintainability of the relevant finding. This would be primarily on the ground that the critical communication dated 20.2.2001 from the concerned Tehsildar, stating that the certificate in question had not been issued in favour of the applicant by their Office, had not got proved during the enquiry. Taking a document on record without giving the delinquent an opportunity of cross examination, would be averred to be against the settled principles of law in Domestic Inquires. The learned counsel would also submit that despite his having raised this important point at every stage, the same had gone unheeded. Taking this argument further, Shri Gupta would submit that as the charge-I had not been held as proved by the IO, with which the DA had agreed; the dismissal in this case was only on the charge-II, which on account of this patent infirmity could not be held as sustainable in law.
4.3 These contentions would be rebutted by the respondents learned counsel with the submission that both the Disciplinary Authority and the Revisionary Authority had after due consideration passed the orders in this regard. The learned counsel would also take us through the detailed order of the Revisionary Authority to reinforce his point and the justification of the view being taken by the Administrative Authorities. It would also be the contention of the learned counsel that the issues being raised by the applicant alleging certain procedural flaws in the inquiry or subsequent orders could have formed a ground for consideration in case the very community itself had been found to be declared as ST and the mere issue would have been of the applicant belonging to the same or not. As the case suffers from the Fundamental disability of entitlement, such contentions could not be allowed to be raised. The learned counsel would also emphasize that as required, the delinquent had been given full opportunity for defence and the orders of the respondents were in accordance with law.
5.1 The basic issue in this case is of the applicant having secured appointment under the Government in the ST quota, without belonging to a Scheduled Tribe community. In a catena of judgments, the Honble Apex Court has come very heavily against such practices. In Union of India vs Datta Ray & Ors {(2008) 2 SCC (L&S) 6}, the Honble Apex Court reiterating the settled principle of law that appointment secured on a false certificate has to be terminated, had observed:
When a person secures employment by making a false claim regarding caste/tribe, he deprives a legitimate candidate belonging to scheduled caste/tribe of employment.
Again in Regional Manager, Central Bank of India vs Madhulika Guruprasad {(2009) 1 SCC (L&S) 272}, the Honble Apex Court had taken the following unequivocal stand:-
Except in a few decisions, where the admission/appointment was not cancelled because of peculiar factual matrix obtaining therein the consensus of judicial opinion is that equity, sympathy or generosity have no place where the original appointment rests on a false certificate 5.2 On a careful consideration, we do not find the contentions of alleged procedural infirmities being raised by the learned counsel for the applicant as acceptable. The inquiry report, the orders of the DA as well as of the RA prove that this was a case in which the applicant had clearly not been found to be an ST. Further, enough evidence had been found to prove his having submitted a forged Caste Certificate. The arguments now being raised to challenge the orders of the respondents, do not merit a serious consideration and given the factual matrix of the case, appear to be more in the nature of an endeavour to bring by the back door the rules and the procedures of the Evidence Act, held not to be strictly applicable in case of disciplinary proceedings. We also find a merit in the respondents stand about the delinquent having been given a fair and a reasonable opportunity for defence.
5.3 Ground F in the OA raises the plea of delay. It is submitted that as in this case the impugned action has been taken by the respondents after a lapse of 24 years, the same could not be justified and even the applicants defence after such a long gap has been highly prejudiced.
This argument, however, is not found tenable too in view of the decision of the Apex Court in State of TN & Ors vs A. Guruswamy {(1997) 3 SCC 542} and Madhulika Guruprasad (supra). In both these cases termination of services of respondents appointed on forged caste certificates after a long gap of more than 20 years had been held as justified.
6. In view of the foregoing, we find the OA as devoid of merit and dismiss the same hereby. No order as to costs.
(VEENA CHHOTRAY) (SHANKER RAJU)
MEMBER (A) MEMBER (J)
/PKR/