Central Administrative Tribunal - Cuttack
Pratap Kumar Patnaik vs National Aluminium Company Limited on 19 October, 2023
Ba fYA SAU ANNEISA Of BERT CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH QA 260 (000326 of 2021 _ Reserved on: 27.08.2023 Pronounced on: 19.10.2023 CORAM:
HON'BLE MR. PRAMOD KUMAR DAS, MEMBER (A} HON'BLE MR, RAINISH ROMAR RAI, MEMBER a * Pratap Kumar Patnath, aged about 56 years, Son of Late Brundaban Patnaik, &) ee Officer (Corporate Communication), Grade-{], FR & CC Department, Aluminum Bhubaneswar, Corporate Company a Office Limited permanent at National (NALCO), resident af lambeswar Patna Sabi, Oh Town, Bhubaneswar, Dist.
Khorda, Odisha, PIN-7S1 002.
ood pplicant VERSUS i. Unton of India represented through its Secretary, Ministry of Mines, Shastri Bhawan, Dr. Rajendra Prasad Road, New Delhi, PIN-110 001.
2. National Aluminium Company Ltd. fa Govt. of India Enterprise}, represented through its Chairman Cam Mana gin x Director, Corporate Office at NALCO Bhawan, Pl, Nayapalll, Bhubaneswar, Dist. Khurda, PIN- PSLOTS.
3. The Director (H&A), National Aluminum Company Lid, (A Government of India Enterprise} Corporate Office at NALCO Bhawan, P/1, Nayanalll, Bhubaneswar, Dist. Khurda, PIN-?S2013.
4. The General Manager T&E & Compliance), NALCD {A Gevt. of dneia Enterprise), Corpurate Office at NALCO Sed OA PEA NMOSIS OF PURE Bhawan, P/1, Nayapalli, Bhubaneswar, Dist. Khurda, PIN-PSTOLS,
5. The Deputy General Manager (H&A), National Aluminum Company Ltd, (A Government of India Enterprise}, Corporate Office at NALCO Bhawan, P/1, Nayapalli, Bhubaneswar, Dist. Khurda, PIN-?ST0TS. joo RESHONCENLES For the applicant > Mr SKOtha, Counsel For the respondents. Mr. O.K. Patnaik, Counsel O ROD ER The prayer of the applicant in this OA is as under:
"{} To admit the DA & issue notices ty the Respondents:
GQ) Te quash the Chargesheet dtd POO S018 fAmexA/2}, report of the [0 fAnnex.A/S), order of punishment dtd. 18.02.2020 (Annex.A/4) and the order dated 13.02.2020 (Annex.A/5) so also order ate. 4.1 1.2020 (Annex. AsO);
fii} And direct the Respondents to reinstate the Applicant to service forthwith and grant him all DY § consequential and service benefits retrospectively:
fiv] To pass any other orderforders as deemed ft and proper"42
oS 8 Shs HOSS at "SESE & According te the applicant, he entered into NALCO service on 28.09.1982 and submitted application in year 1983 for change of his date of birth fram 22.05.1959 to 10.08.1964, The said application was taken on record and placed in his service record at page 128. On 15.04.1983, he had sought far permission ta appear at the Matriculation/HSC Examination scheduled to be held fram 20 te 28% April, 1988. On 29.06.1985, he was promoted to the post of Attendant wef, OLO7.1985. He came out successful In the Matriculation /HSC Bxamination from Board of Secondary Education, Orissa in September, Las? wherein his DoB was recorded as 10.08.1964, which he had already intimated te the NALCO authorities in the year 1983 through his representation, and submitted the same before the authorities. On L7.O2.1988, the respondents authority after taking Inte consideration the Matriculation Certificate sanctioned one advance increment as per the rales in his favour on 17.02.1988. Based on the DeB and according to the Matriculation qualification, he was promoted to the post of Assistant on 34.42.1988. Thereafter, he was also prometed to the post of Sr. Assistant on 10.01.1995, after which, he appeared the Bachelor's Degree Examination in Arts through IGNOU and came out successful on 19.04.1998 wherein his DoB was recorded as 10.08.1964. On 18.09.2000, on the strength of his qualification, which he had acquired, he was promoted to the post of Ir. Executive Assistant. On 25.01 22108, he was promoted to the post of Executive Assistant, after which, Ir Officer/PR. If has been submitted that the matter was inquired Into and in the Inquiry, it was specifically stated by the competent authority af the NALCO that the applicant has submitted application for change of God at the right ime, which was brought to the record, but the Inquiry Officer ignored the statements recorded In the Inquiry and held that the application so submitted by the applicant being without any date it is presumed that the said application was submitted after the due date, which is contrary to record. Further, it has been contended that law is well settled that the document cannot be accepted without examining the author of the document and the Dok recorded in the HSC certificate shall be taken to be the authenticated one but the 10 held contrary to law based on which inquiry the applicant was imposed with the punishment af "Censure" vide order dated 19.02.2020 (A/4) and, on the other hand, he was made to retire retrospectively wef 31.03.2019 vide order dated 13.02.2020 (A/S), which is contrary to law, Accordingly. ff has been stated that the order prematurely retiring him from service retrospectively being without any evidence, withant complying with the ye MER EEE wb PER z UA SSG OOS sh oF LOSS principle of natural justice and without following due procedure of rules and law, he is entitied te the relief claimed! in this OA.
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3. On the other hand, respondents fled thelr counter contesting the ees case of the applicant stating Inter alla that the applicant jofmed the NALCO on 20,09.1982 declaring his DoB as 22.03.1959 by submitting TC of Class X dated 11.09.1981 of Syed Mumtaz AN Nigh School, Nayapaill, Bhubaneswar, On 29.06.1985, he was pramoted to the post of Attendant wef OLU?.1985 and submitted application on 06.04.1987 for change of his Surname from Patra to Patnaik along with two affidavits dated 24.03.1987 shorn in by his father. Accordingly, his surname was changed from Patra to Patnaik vide order dated 10.04.1987, Applicant passed HSC Examination through correspondence course in September, 1987 wherein his DoB has been recorded as 10.08.1964 On ar after 02.12.1987, applicant submitted updated application fer correction of his BoB from 22.05.1959 to 10.06.1964 along with a duplicate TC of Syed Mumtaz Afi High School, Nayapalli, Bhubaneswar dated 11.00.1981 mentioning his designation as Attendant (PR). Hence, the contention of the applicant that he had submitted the application within one year of his appointment, Le. 20.09.1985, is false. As per the Certified Standing Grders, Rule 32, an employee can seek change /correction of Do within & QS WSOANINI SG GF SRI ene year from the date on which his DoB was recorded in the Service Book. As the request of the applicant for change of Dol was beyond one year of his appointment, no office order was issued for change of his DoR from 22.03.1959 to 16.08.1964, On receipt of a complaint, the Vigilance Department of NALCO investigated the matter and during Investigation was found that the DeB of the applicant is 22.03.1959. No recard exists in Syed Mumtaz Ali High School, Nayapalll, Bhubaneswar regarding issuance of TC wherein the Do of the auplicant Is recorded as 10.08.1964. Accordingly, the applicant was charge sheeted on {L096 2018 and. on inquiry, if was found that the TC, wherein his Dob was mentioned as 10.06.1964, is freed one. Accordingly, the applicant was superannuated from service wef 31.09.2019 vide impugned order dated (4. L.2020. It has been stated that the DoB recorded In the HSC certificate is irrelevant as he got the appointment based on the TC wherein his Do Is recorded as 22.08.1959. Applicant submitted his reply to the charge sheet on 26.10.2018. It is submitted that during inquiry an unsolicited letter dated 11.02.2019 was received fram Headmaster, Syed Mumtaz Ali High School, Nayapalll, Bhubaneswar, along with alidavit that the applicant was also a student of B.MLHigh Sehanl fram Class Vito [IX from OF.07,1970 to 03.05.1976. tt has been ? GATES /ERIIN af 282 1 stated that if the Do of the applicant is accepted as 10.08.1964 then it will be presumed that he was studying In Class X before attending the minimum age required for the purpose. Accordingly, respandents have prayed for dismissal of this QA.
4 Applicant has fled rejoinder mere or less reiterating the stand taken in the OA, in substance, the stand taken by him is that he has been made scapegoat to a situation and retired him from service retrospectively without any evidence In violation of the principle af natural justice and rules/law.
S At the first Instance, Ld. Counsel for the applicant drew our attention to the allegation made in the charge sheer dated TE0G. 20158, which reads as under:
"4 Ithas been alleged against you as under
(a) That, as a part of your joining formalities in NALCO on your appointment to the post of Messenger in September, 1982, you had submitted Attestation forms and Binedata form, wherein you had mentioned your date of birth as 33.09.1959, In support of your above declaration regarding date of birth, you had submitted an attested copy of Transfer Certificate issued by Syed Murntaz All High School, Nuapalli, Bhubaneswar, on 1 L.OO198 1.
fb} That, subsequently during the course of your employment you had submitted a request for change in your date of birth from 22.03.1959 to 10.08.1964, supporting your claim with a copy of a 'duplicate' Transfer igo Certificate purported to have been issued by the same Syed Mumtaz All High School, Nuapalll, Bhubaneswar, on 11.09.1981. You have also confirmed your claim of change of date of birth by mentioning your date of birth as 10.08.1964, In your family declaration submitted on OO OLS018.
fe) That, the 'duplicate' Transfer Certificate dated 11.00.1987 submitted by you while requesting a change of your date of birth record has been found to be a forged certificate.
2. The shove acts af your constitute major Clause Z5{B]Uv), £5 Clause 25C}08) Clause 25(R] xx} Clause 25(8}0) (Bixaxty) and 25(8) Standing order of the Company, which read as under:
ane's name, father's name, age, qualification, details of previous service, address etc, at the time of securing employment or thereafter.
intentionally giving false information prejudicial to the toterest af the rranageniant.
Abetment or attempt to commit any of the above acts of misconduct.
3. You are, hereby, called upon to submit your explanation ip writing to the undersigned on the above mentioned charges within 72{seventy-twe) hours of receipt of this Chargesheet as to why action should not be taken against you as per Certified Standing Orders of the Company, iniling which if will he construed that you have no explanation to offer and disciplinary action as deemed Ht will be taken against you"
OA BHO MNOS ad SSE % PA? fails POISE of SOT S1 Thereafter, he drew our attention to the deposition of the PWs/DWs, who were in the higher pedestal and the key persons of the NALCO and supposed to deal with the application submitted by the applicant relating to his change of DoR, which reads as under:
O. No: Are You Mr. ORK Semal! Ans: Yas OG. Ne 2 What is your designation?
Ans. Sr. Manager Q.NO-3: Where and in which post are you working? Ans, NRTC Building, Gothapatna and looking after Centre of Excellence.
ONO-4: Were you the presenting officer earlier for this case? Ans, No, However an order was issued in the beginning of the ease by HRD naming me to be the PO for this case, which was subsequently changed.
Q. NO.5: As stated by you the TC found in the personal fle af Shri Sratap Kumar Pattnaik (CE) isa plain typed one. Ans. Yes O. No & What is the practice In NALCO for submitting documents for proof af DOB during joining' ANS. School leaving certificate, Education qualification rertificate issued by the instinite/Board University and last amplayment certificate by the employer.
OG No 7: Whether NALCO had asked fim to show original TC Curing interview af CE?
ns: Tdon't know OG. No-8: Have you seen any PC fschool leaving certificate with DOB 10.08.1964 in the personal fle?
30 SAREE Q. NO: Have VOL Seen Gny affidawit. scbuvitted by the My.
Patnaik regarding his DOB as 10.06.1964 in the personal Hie? Ans. Sa ONO-1TO: Have you seen 3 prope ¢ TC in support of his DOB 22.05,1959 in his personal Me?
Ans: 8a, @ Noli: Who process the fle for any employee for any change of his BOR proaf?
Ans: HRD.
Shie for san a, Now if: Do you feel Mr. & 3 PC ins sup vcatt of DOR 10.08.1964?
proceeding of his duplicate fui. No comunents, @ No-1S: Did yeu get any certificate regarding Mr. Patnaik from Syed Mumtas All high school?
Ans: Yes. {8-§) t Noa-da: How you are sure that Mr. Patiiak hed submitted a fra certificate TC?
Ans: The schoal records certifed by head mistress of Syed Mumtaz Al High schoo! contradicts the char nged schol leaving certificate submitted by Mr. Patnaik in 198? te NALCO.
rding letter issued by :
:
QO. No- iS De vou have any knowledges rege the achoa! during the seating af the engul Ans. Yes on 14 02. 2019 I came te know sbout such letter from my colleagues from vigilance department.
Q. Neol® Have you natice any TC with proper stamp available in his personal fle? Ans: Yes In the form of phote copy.
ocambent nee Te x the request Ee Cc in his record Q. Nawt?: Have you seen a d made by Shri Patnaik to bichie folning br NAGCO. Wy fast after hb ft a fraud certificate?
Bee at A 260 (ROS NG of BEE Ans: Yes I have seen. My reply is same as to the answer against Q. N. t4. Additionally Shri Patmaik had declared Timself 22 03.1959 as his DOR at the ime of his jolnimg in NALCO, Re examination PW-1 QNO1: How many TCs have you found in his personal Mle and what are they?
Ans: Two. One submitted at the time of joining (Typewritten)} and another submitted with the application for change of DOB.
Statement of DW-3, Sri Santosh Kumar Mohanty, Ex-AGM (PR), NALCO QO. Nol: Now you know Mr. Pratap Patnaik?
Ans: When | jomed in NALCO in 1983 Shri Pattanaik was warking In my Department.
Q No 02: Do you know what is the DOB of Mr. Patnaik Ans; 19m4 Q Ne 03 Please go through the chargesheet issued to Shri Patnaik and say whether any forgery in DOB document has been done by Shri patnaik?
Ans: As for as my knowledge is concerned [ have not found any information regarding submission of forgery DOB document by Shri Patnaik O No G4: What are the imputation of charges in the charge sheet?
Ans: | have no such knowledge about standing order.
G. NO. O05: what is your knawledgs about the matter connected with submission of forgery decument and what is the true picture?
Ans: ta my knowledge there is no such forgery document submission by Shri Patnaik. This dees nat come under my purview and this is basically HRD fonction as per practice.
Q No. 06 Doe you know Shri Patnaik passed Matriculation during the year T9877 .
bred, bao Ans. | knew that Shri Patnalk has passed the NSC and | have not seen fis HSC certirate, fxamination of DW-04 Shri PoC Behera Ex-Asst Manager{Secth} NALCO.
G. Nat, What is your Name and place of stay? Ans: Purnachandra Behera, Bhubaneswar
0. No.2 Haw de you know Shri Pratap Kumar Patnsik?
Ans: | Join the PR Department af NALCO, Corporate in September 7O83, Since 29 of my service In PR Department, Shri Patnaik closely associated with me ag a MIOSSEN TET.
My Q. No. 03 Go you know what his DOE is?
Ans: As Precallect and |] remember his DOS is dy 2964.
O. No. 04: How do you know his DUB?
Ans [came te know the DOS of Shri Potnalk after seeing his HSC Certificate during LQ87 when he was celebrating his success In. HSC in the Department.
Q. Na 05: Please go through the Charge sheet alleging that there is forgery in his DOD?
Ans: ft is not true that there is forgery in his DOB. As per his Board certificate, Voters, [1 and Bank pass Book, his DOB was TOLOS 1964.
Q. Na Q6: What was is the factual position regarding change of DOR of shri Patnaik as kent £0 YOu Ane Pave heard that Shri Patnaik has changed his DOB Q, Na. OF: Do you knew to whom in HRD the copy af the HAC Roard Certificate was submitted bearing DOB as 10.08.1964 Ans: | accompanied Shri Patmaik and the copy af the HSC Board Certificate was submitted to Miss, Shagahati Mishra the then dealing assistant in HRD in the year ass.
OW TU AINIG OFS 18 OA SSG /OU NS of 2021.
Q No, OB: In your opinion how is the behaviour of Shri Patnaik in the PR Department?
Ans: Shri Patnaik is a good person, Examination oof DW-OS Shri BP. oC Panigrahi, Ex- B.OUIncharge [HRD NALCO.
G No 1: What is your Name and place of stay?
Ans: My name is Shri Purna Chandra Panigrahi and | stay in Bhubaneswar Q. Na. 2: Since when you are in NALCO and what is your present profession?
Ans: Since 1982 [ was in NALCO and then after in 2072 T was in Seal India as Director H&A and presently | am a freelance consultant @. Ned. How do you know Mr, Pratap Patnaik' Ans: We belong to the same place of Birth and our parents are erown te cach ather and residing in old town Bhubaneswar 0 now.
g. No. 4: As you were working as ED H&A in-charge and shri Fratap Pathanik was in PR Department, Do you know what is his DOE?
Ans: What I recollect way back in 1999-2000 Shri Dinabandhu Satpathy was the DGM(Admin & CC] in NALCO Corporate and Shri Satpathy called me and enquired about an angnymous complain received by him where in an allegation regarding DOE of Shri Patnaik. Then | recollected my initial Joining In NALCO in $982 when at my home, father af Pratap Parnaik came to meas! was enployed in NALCO and said that DOB of shri Patnaik in RM High School has been wrangly entered and he wants to correct it. By that time Shri Pratap Patnaik has shifted his schas} education from BM High School to Syed Mumtaz Al Gov. high schaal. | replied him that | will go through the rales of NALCO as | was new to NAICO and his father was specifically wanted to know how can the correct DOB can be brought inte record. Then [was posted In NALCO Angul and consulted Shri Ashok Mandal the then DGM(H&A) S&P and narrated the whole episode to him. He went through the standing order of Company ard explained me the prescribed provisions for change of ROB. Few days le"
MM OA SHO thereafter an company tour to the chamber of senior adyacate Shri Bipin Bihari Rath presence of his junior which Includes one inter-alis the then advocates sh re S Rath present Justice Gdishs High court were present and after my job was over in my isty | inquired ehout this case from Bipia Bihari Rath who sealed > me the standing order provision to be complied and by showing an affidavit with due compliance to the procedure and satisfying all the authority maintaining fransparency and if authority accepted on being satisfied sbout the fact then change fx DOB can be affected, [In subsequent visit to my hame fas s family friend oF abn Pormaik explained to him the procedures, After decades, when Sho Satpathy asked me about this | explained from. my jmemory and also told him in normal circumstances unanimous or pseudenymons to be Hed but better NW there are verifiable fact be may check fb ap. Then Siri Satpathy replied me that since Shri Patnaik had passed HSC Board exam and certilicated ha Ss been submitted to NALCO he told me that he hed seme friends in Board of serondary Education and he will verily the HSC decument submitted by Shri Patnaik regarding the ROB etc, Some days after in corridor Shri Satpathy met me and told me that he checked up throug! his infprmal source and he & satisfied and confirm thet 'he heard certificate is genuine and authentic, He also told me that he had gone through the verifiable facts In complain and did all his verifications confidentially and found that his BM High Sheol certiNcate is having the GOB 22.08.89 which he had given at Syed Mumtaz Al Government high school and later during his schouling in Syed Mumtaz AN school complied though the prescribed proc ~edure und the standing order and had swern in the affidavit and the gchas! authority on being satisied eerreeted his DOB in line the affidavit where in the DOB was {D.O8.1964 Subsequently hased on same certificate a revised schoal Ipaving certificate was issued by the schoal authority (EX+ md) based on this development Shri Patnaik inform the oymanagement and has acted very transparent without suppressing anything and sought management permission to appear HSC with the revised DOB incerporsated by proper cedure by the school satharity. In other words things Asve ened with knowledge of the management snd on being ware aecented Ais revised. DOB and permitted Into appear in the HSC Examination, Ne passed the HSC and as per the BSC Roard certificate his DOB correctly came gatas 10. 08. 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G.No.S: Flease give your views on the charge-sheet framed against Shri Patnaik Ans: The charge memo has 3 clauses The clauses 1 a, b, c, was the imputation of the charges.
Clauses 2 based on the imputation the misconduct clauses of standing order have heen braught in.
Geing through the imputation | don't find the conclusion made that the duplicated TC dated 11.09.1981 ean be declared to be forged certificate as it is not qualifying the meaning under [PC er dicthonary.
Further the letter did. T1Q5 £019 from Nead Mistress Syed Mumtaz All Schae! is very crystal clear and conclusive when it SAYS Saf Rh 38 OA 2EO AOA af "Oy the Hasiy of affidavit the head master of that time would have issued the transfer certificate aller correction of the date of Birth bat original copy of aki TC is not readily available in the Schoo}, | have enclosed the zeros copy of affidavit here with for your kind perusal"
Above statement af the bead Mistress establishes the fact that NOR has been revised snd dugiicate c& tificate has been issued based on affidavit. Hawever the gacond part of the statement rhat ig ve head master that Gime wank have issued iy 86 mistress was net the head maste has issued. So abvious that the then head master might have issued. Besides the HSC C pf birth In the schol TC."
Rae > «gs forge ane Availability af the aid by the heasd mistress rather if is ealed We ig not Instantly available. Go it is not praper to read the content i prejudice aye wivek may end in capital panishment af lnaging bread snd butter of Mr. Partasik. So | arm net aprerable f the charge that the decument is forge and when document ie not urged it is logical rhat rest all shaken other contents found to be | af the meme are shaken and are not acceptable and cant with- stand the scrutiny of the law."
52 Next, he drew our attention to the relevant portion of the report af the 10, which is as under
"egy The defence hss produced sik WHRESSES, four are §X emplayees of Nalco ard one (6 8 fy President of 8M High schnel and another was an ex employes of Syed Mumtaz Al Govt. Nodal High Sehoal Mest af the oral evidence are repeating in nature and emphasized the basis af Rate af both for a person. The documentary evience were mostly documents. like Naico iD, Nalco payslip, PP statement, PAN Card, Aadhar Card ete supporting that che DOE meationsd in these documents 1 LOsOS/19G4 From the hoginning of the amaary proceedings the ey ok i GA PEO AEQS 29 af SE defence highlighted thet the Charge sheeted employee has passed Matriculation after taking due permission fram Nalro and the date of birth mentioned in all these documents including HSC examination mark sheet is 10/08/1964. Hence In all prabability the duplicate school leaving certificate shall be treated as venuine(Point Ne 8.7 to9}. The enquiry officer minutely examined the oral evidence by DW-5 being an Ex. E.D (H&A) of Nalco (Foint No 8 29 to 38). The oral evidence af DW-S is masthy centered on what the witness Hstened from another Nalca execntive inchading that the said Nalco executive has verted with the Board of Education about the authenticity of the Matriculation certifieate and found te be in order. Such aral evidence quoting a third person and without documentary evidence cannot be considered as.a fit case in favour of defence, Mare ever the oral evidence is no way supports the authenticity of the duplicate School leaving Certificate submitted by CE to Nalco HRD ata later dats, recorded in the School admission register and also the certificate matches with the School leaving certificate issied by BM High School, Rhubaneswar where Shri Pratap Kumar Patnaik studied fram class Vi to IX (1970-78) before joining his last attended school in ass X with same date of bath as 22/03/1959. During the year 1987, an undated application by CE with a copy of the duplicate attested Schoal leaving certificate with date of birth ag 10/08/1964 was placed in the personal file of the Charge sheeted employee. No action has been taken by Nalco on the said application. The last attended achocl has no records of issue ofa duplicate achacl leaving certificate. The Charge sheeted employee has accepted submission of both the schoal leaving certificates. On perusal af prosecation evidence it surfaces that ir is a far probability to study class VI at an age af six years considering the date of birth ag 10/08/1904 mentioned inthe fen
55) GAARA 6 oP Oe) duplicate Transier Certificate. The affidavit for change of date of birth which surfaced during the enquiry proceedings cannot be a Ai case as a defence evidence ta srove that the duplicate School leaving certificate is not forged. As Ghe sat duglcate is not processed and pot forwarded 4 the department clearly indicated negauve intention ef Shri Pratap Kamar Patnaik, Charge sheeted employes.
7O.0) Coanchision:
Thus, on overall appreciation ef evidence placed by both Presenting (iicer (PO) and Charged Employee (CR) convince:
that the charge on Shri Pratap Kumar Patnaik JUNIOR CERES (Corporate Communication) GrilPi Nos TS. SAUC, BHUBANESWAR, under clause Ne 25(8}(lv), pene ae and 25(Bi)) of certified standing order is proved"
5.3 Further, he tock us to the order of punishment Imposed at the conclusion of the disciplinary proceadings as under:
"WHEREAS, certain charges for major misconduct were made against Shri Pratap Kumar FPatnatk, P.No.dG2tS, Pndificer {Corporate Communiestion) Gril, PR & CC Department, Carparate Office, Bhubaneswar vide Chargesheet No. 19/2018, dated 11/09/2018 in warms of the provisions of the Certified Standing Orders of the Company and a domestic enquiry was conducted into the charges; and WHEREAS, the Engairy Officer submitted his report to the Disciplinary Authority on 27/05/2019 in which he conchaded that the charges levelled against Siri Pratap Kumar Patnaik fave been est tablished: and WHE RE. AS. ¢ oN n careful ¢ examination of th report of the Enguiry officer, sheeted Workman on the find INES at the f Enquiry "Report oe related decuments and facts on recerds, the Disciplinary Authority has concurred with the Andings of Enquiry Officer. anal ee a3 QA SOR ANNES af BNET WHEREAS, the Disciplinary Authority has arrived at a canclusion that the date af birth Le. 22/00/0959 declared by Sri Pratap Kumar Patnaik @ Patra at the thne of his joining the Company is to be considered for all oficial purposes and the subsequently declared date of birth La. LO/G8 $1984 is not correct: and WHEREAS, the Disciplinary Authority after careful consideration af all facts, recards and circumstances of the case in which the Charge-sheeted Workman has already crassed the due date af his superannuation, has decided to Impose the following penalty on Sri Patnaik under the provisions of Clause 25 of the Certified Standing Qrders of the Company:
"CENSURE® NOW THEREFORE, Shri Pratap Rumar Patnaik, F.No.dg2is Rod stands censured for the miscanducts committed by him, a brought out in the sforesaid Chargesheet dated 11/00/2018"
St Based on the aforesaid finding, {ft has been submitted by the Ld. Counsel for the applicant that the {0 ignored the deposition by holding that the deposition is not supported by any documentary evidence and, thus, no credence can be shown to such deposition, which finding is absolutely contrary te law because if the statement of the deposition could not be taken as evidence, there was na necessity to call them and examine/cross examine the witnesses, be it prosecution or defence withesses, The 10 is duty bound under law to pay due regard to the depositions and weigh them and then anly to come into a conclusion.
Therefore, based on the report of the 10. imposition of punishment and ES we 2G SU RAG NIST ef BORE retiring the applicant prematurely retrospectively is based on no evidence.
58 tn order to substantiste his submission that the entire ganvot of exercise was conducted and concluded in violation of principles of natural justice 'audi alteram partem, Ld. Counsel for the applicant drew our attention to the letter Ne. 14 dated 11.02.2019 issued by the an the specific request of the NALCO authority vide office letter Na. V/C- 1706/681 dated 19.12.2017 wherein it was intimated to the NALCO Authority as under:
"Ref Now 14 Pate: 1102.19 Te The Deputy General Manager (Vigilance) Corporate Office, NALCO, Bhubaneswar.
sub: Regarding verification of School Leaving Certificate of Sri Pratay Kumar Patra, an employee af your estesmed organisation.
Ref Your office Letter No. V/0-1 706/88) dated D212 2007.
Sir, With reference to your office letter and subject cited above, Lam te intimate you that Sri Pratap Kumar Patra, $/0 Late Brundaban Patra was bonafied student of this school in the year 1981-82, He was issued his Transfer Certificate by the then Headmaster of this school. Later Sri Brundaban Patra F/O Sri Pratap Kumar Patra made an affidavit befere Executive Magistrate of Bhubaneswar on 03.09.1981 to correct the date of birth his son as 10.08.1964 instead of 22.03.1959 Puch yok OVA VC SE SAREE QRS QA SAE OOS SS of SET and submitted the same to this school for issue of corrected ene, which is found from the old record kept in this school affer Inquiry dene by your office. On the basis of affidavit the Headmaster of that time would have issued the Transfer Certificate after carrection of the date of birth. But original office copy sald T. C is nut readily available in this schoal. | have enclosed the xerox copy of affidavit herewith for your kind perusal"
Sb By placing rellance on the notes of argument submitted by the Ld. Lounsel for the respondents, Ld. Counsel for the applicant has submitted that the respondents have fairly submitted in their written notes of submission at page 3 that in September 1987 applicant passed HSC examination and submitted the certificate wherein his DeB has been mentioned/recurded as 10.08.1964. The applicant appeared the HSC examination with due permissian of the competent authority of respandents-department, The reapondents-authority accepted the HSC certificate wherein his BoB has been recorded as UN0S.1964 and sanctioned one advance increment @ Rs, 13 per month in the pay scale of Rs. 590-138-752 /- wal OLS 1987 vide arder dated 17.02.7988 for z scheme approved by the Board but this aspect af the matter has not heen taken Inte consideration in course of hearing or while passing the impugned urders. The respondents have also suppressed the acceptance af the HSC certificate and sanctioned one advance increment in favour of the applicant. It has been contended that the stand of the respandents that NSC certificate is not relevant for his DoB in service record is contrary fo law laid down by the Hon'ble Apex Court in the cage of Eastern Coalfields Limited & Ore. Vs. Bajrangi Rabidas, (2014) 13 oCC O81, wherein it was dedded that [ioB recorded In HSC or Matriculation shall be authentic one.
so? [thas been contended that the respondents have admitted that the applicants submitted application for correction of DoR on or after Q2 22198" by producing SLC is sot correct because when the applivant was having Matriculation certificate In September, 1987 wherein his DoB was recorded as 10.08.1964 question of submission of SLC did not arise. This itself establishes that the applicant requested for change of DoB by producing the TC duly granted by the Syed Mumtaz All High School, Nayapalli, Bhubaneswar In 1983, which was alse authenticated by the witnesses in course of Inquiry and admitted by the respondents In the counter that the applicant was taken to record, Further, relying on the written note submitted by the respondents, it has been contended that an SIM 2D LS preliminary Injury was conducted by the Viellance tab DA 2OnfOOr es af SON 5 ot department, NALCO helding that the TC dated 11.09.1981 was forged ane based on which charge sheet was issued on 11.00.2018 without imputation of charge, list of RUDs/documents. According to him, this itself establishes that the holding of inquiry was mere an eyewash as the authority concerned based an the preliminary inquiry report decided to hold that the certificate dated 11.09.1981 is forged one but no preliminary report was supplied to him nor persons from whom the detailed data was collected were called upon fur examination /cross examination in course of regular hearing and to substantiate that taking cagnigance on the preliminary inquiry report without supplying the preliminary inguiry report, the Inquiry is vitiated, Ld Counsel for the applicant has placed rellance on the decision of the Hon'ble Apex Court in the cases of Employees of Firestone Tyre and Rubber Co. (Private) Lid. Vs. The Workmen, AIR 1968 SC 234, and Nirmala LJhala Vs. State of Gujarat and another, (2013) 48CC 301.
= In stating so, Ld. Counsel for the applicant has submitted that the entire action of the respandents smacks of malafide exercise of power, Further, it has been submitted that in page 5 of the written note the respondents have fairly admitted that on 09.12.2017 letter containing certified copy af TC and admission register was received from Headmaster, Sved Mumtaz Al High School, Nayapalll, Bhubsneswar, which letter was issued by the Headmaster of the School specifically stating therein that the DoB recorded in TC dated 11.09.1981 was based an records but the counterfoil of the certificate book is net available at this distant pried of 36 years. Nowever, other permanent records are available which shows that the duplicate certificate Issued with correction of Deb is correct one. Gut, surprisingly, the [OQ or of that matter respondents, did not take into consideration the above letter and did not examine the author, who had issued the TC dated 11.09.1987 and swayed away with the Qndings of the Vigilance, NALCO, which were prepared behind the back of the applicant. Thus, according to the applicant, the report so submitted by the 10 Is based on conjecture and surnises and contrary te the decision of the Hon'ble Apex Court in the SCC (USS) 398.
§.9 Based on the application, which the applicant had submitted along with the TC dated 11.09.1981 in the year 1993 wherein the Dob was recorded as 10.08.1964, followed by acceptance of the NSC certificate, 38 OS SSN ARMES6 of SOS) unsolicited ane and cannot be relied on, which is contrary te record, The iO ignored the depositions adduced by the witnesses during enquiry on the ground that the said statement is no corroborated with evidence but the 10 did not require the same in course of the enquiry, The 10 sught not to have ignored the statement in such a casual marmer, which is found contrary to law. The author of the document, who had issued the duplicate certificate, was called apon and examined by the 10, Further, it is seen that the 10 came to the finding basically depending upon the report of the preliminary enquiry but without examining as to whether such report had ever been made available to the applicant In the case af Noor Aga v. State of Punjab & Anr, AIR 2009 §C (Supp) 852, it was held that the departmental proceeding being a quasi judicial one, the principles of natural justice are required to be complied with. The Court exercising power of judicial review are entitled to consider as te whether while inferring commission of misconduct on the part of a delinquent officer relevant plece of evidence has been taken Into consideration and irrelevant facts have been excluded there from. Inference on facts must be based on evidence which meet the requirements of legal principles.
Porther, in the case of M.S. Bindra v. Union of India & Ors, AIR 1998 SC 3058, it was held as under:
38 OA SOR REEISS Oh SOT "While evaluating the materiais the authority should mot altogether ignore the repotstian in which the oficer was held 2 recently, TP he masim "Nemo Firat Repente Turpissimus" (ao ane becomes dishonest all an a sudden} is not unexceptional but sul it is salutary guideline to fades hurnan conduct, particulariy in the field of Administrative Law. The authorities should not kocp the eyes tatally closed towards the overall estimation in which the delinguent officer was hele In the recent past by those who were supervising him earlier To dunk an alflcer into the paddle of "deubthis) iitegrity" itis not enough that the daubl fringes on 8 mere hunch That deubt sheald be of such a nature as would reasonably and consciously be entertainahle by a reasonable maroan the given material. Mere possibility is hardly sufficient to assume fhac f& would heve happened. There mut be preponderance of gorehabiiitx for the reasonable man. to entertain dauit regarding that possibuligy,"
Ti. In wew of the facts and law discussed abave, there is no iota of doubt that the report based on which order passed by OA upheld by the AA are not sustainable in the eyes of law.
12. On the other hand learned counsel for the Respondents have placed reliance on the decision of the Hon'ble Apex Court in the case of Coal India Ltd. & Ors. {supra} wherein the applicant on the strength of the duplicate matriculation certificate obtained from Bangladesh wanted to change his DoB at the fag emd of his service and the Nea bie Apex Court Interfered with the order of the Non'ble High Court on the ground "
that an what basis after 38 years. the secondary Education Board, Shag, "~ SEE PEPER oe gyn ae 33 NA SHY OGOS 2S af F029 Bangladesh corrected the Matriculation Certificate is essentially a question of fact In which the Hon'ble High Court gueght not to have exercised his writ jurisdiction te determine the real date of birth, which is not the case In hand. Therefore, the said decision is not held to be applicable in the present case, Similarly, in the case of Bharat Coking Caal Ltd and Ors (supra), and in the case of Harnam Singh (supra) the request for change of DeB sought at the fag end of service was held impermissible in law, but in the instant case, the fact of the matter is different as discussed above, {3. Ht is evident that the applicant appeared the HSC (Matriculation) examination after taking permission from the authority and came out successful and submitted the HSC/Matriculation certificate mm september, L987. Undisputedly, the authority concerned accepted the same and sanctioned one advance Increment in his faveur vide order No. CPD/NEE/S3046/1251(2) dated 17.02.0988 and hased on the qualification he was subsequently promoted, It is the specific stand that he had submitted the duplicate certificate in the year 1983 which was taken to record has been admitted by the Respondents supperted by the deposition adduced in course of enquiry, noted above but accarding to the respondents he had submitted the same in September, L987. {f there 38 GA SOOO I ES OF RTS was discrepancy in the DoB one recorded in his service record and other one reflected in his HSC/Matriculation, the autharigy concerned should not have sanctioned advanced increment based on such HSC/ Matriculation certificate and given him: promotion to higher posts. His date of birth 10.06.1954 has alse been reflected in the pay slip and identity card issued by the Respondents. The said date of Irth has also been reflected in the employees' pension Amd and mentioned in the application submitted to avail LTC based an which he was sanctioned the amount. If the DeB was 22.09.1959, the applicant would not have been allowed wt continue SH 8.922020 and made him to retire retrospectively wed 31.03.2018, which itself establishes that the respondents consciously allowed him to continue based on his DoB as 10.08.1984. From the discussions made abave, if establishes that it Is not a case where the applicant seeks to change is Do at the fag end of fis service rather it is a case where the respondents wanted to alter the changed DoB of the applicant. Learned Counsel for the applicant bas placed relance in the case of Eastern Coalfields Ltd.& Ors (supra) to substantiate that the date of birth mentioned in Matriculation or Higher Secondary certificate bas to be accepted as authentic. in the case of State 38 TA BHO MINOT of 2OR?
of Orissa vs Dr. (Miss) Binapani Dei & Ors, 19&7 AIR 1269, the Hon'ble Apex Court held as under:
"tt is true that some preliminary enquiry was made by Dr. 8, Mitra. But the report of that Enquiry Cfficer was never disclosed fo the Hirst respondent. 'The rafter the Arst respondent was required tu show cause why April 16, 1907, should not be accept das the date of birth and without recarding any evidence the arder was passed. We think that such an enquiry and decision were contrary to the basic concept of justice and cannat have any value, It is trae that the order is administrative in character, but even an administrative arder which involves civil consequences as already stated must be made consistently with the rules of natural justice after Informing the first respondent of the cause of the State, the evidence In support thereaf and after giving an opportunity to the first respandent af being heard and meeting or explaining the evidence, Nea such steps were admittedly taken; the High Court was, In our judgment, night fn setting aside the order of the State'.
if. The legal maxim sublute fundament cadit opus is a well recognize:
principle that if the foundation is removed, the superstructure will collapse. It is alse well settled proposition that if Initial action is not in consonance with law, subsequent proceedings would not sanctify the same. Since the proceedings have already been held to be legally not sustainable, retiring the applicant prematurely vide order dated 13.02.2020 and made him to retire retrospectively wet 31.03.2019, is. Consequently, the orders dated TS.02.2020 {[A/$}, dated 13.02.2020 (A/5) aml dated O04. 11.2020 (A/@) are hereby quashed. The 8G QA SROSQSOS IS of SOS) applicant shall he deemed to have been continuing in service tll his normal date of superannuation as per the DoB 10.08.1964 and payment, ifany, made towards retiral benefits shall be adjusted while calculating and paying him the service benefits on reaching the normal date of superannuation. The consequential orders are directed ts be issued by Respondent No.2 within a period of 45 days from the date of receint ofa a cee eee copy of this Syeey,
16. In the result, the QA stands allowed leaving the parties to bear their own costs, cumar Rai} (Prainod Kumar Das} Member Qudl} Member (Admn.}