Meghalaya High Court
Chandrakant Prabhat vs . The Union Of India on 20 March, 2019
Equivalent citations: AIRONLINE 2019 MEG 166
Author: H. S.Thangkhiew
Bench: H. S.Thangkhiew
Serial No. 23
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 156 of 2017
Date of Decision : 20.03.2019
Chandrakant Prabhat Vs. The Union of India
Coram:
Hon'ble Mr. Justice H. S.Thangkhiew, Judge
Appearance:
For the Petitioner(s) : Mr. S.D. Upahyaya, Adv.
For the Respondent(s) : Mr. R. Debnath, CGC
i) Whether approved for reporting in Yes
Law journals etc.:
ii) Whether approved for publication
in press: Yes
ORAL
1. The brief facts of the case is that the petitioner was enrolled in the Assam Rifles on 15.03.2012 as Havilder/Clerk and on completion of the basic training the writ petitioner was posted at 31 Assam Rifles. On 07.11.2014, one Ex-Lance Naik Dayashankar Shah, submitted an application to the Commandant 9 Assam Rifles with a copy to the Headquarter Director General of Assam Rifles and to the Ministry of Home Affairs stating amongst other allegations that the writ petitioner and another person namely Prabhat Kumar Sharma had produced fake residential certificates of Mizoram and Meghalaya respectively at the time of their enrollment. The other allegations were that the writ WP(C) No. 156 of 2017 Page 1 of 8 petitioner had taken 3,00,000/- (Rupees Three Lakhs) only for enrollment of the complainant's son and also was running wet canteen in the name of Binod Kumar Sharma & Sons at the Assam Rifles Headquarters.
2. The Director General Assam Rifles then vide letter 11.06.2015 directed that a Court of Inquiry to be convened to ascertain the validity of the certificates which were filed by the writ petitioner at the time of enrollment as per relevant rules. Thereafter, by the order 06.07.2015 a Staff Court of Inquiry (SCOI) was convened to investigate into the allegations of the involvement of the petitioner in fake recruitment, running wet canteen, fraudulent enrollment, taking bribes, bank transactions, property details including frequent changing of residential/payment address etc.
3. In the course of the Court of Inquiry, 15 witnesses were examined and the petitioner was given adequate opportunity to defend himself. On culmination of the Court of Inquiry which however confined itself only to the aspect of enrollment by production of fake documents, a Show Cause Notice dated 06.08.2016 was issued to the writ petitioner which is as hereunder :
"CONFIDENTIAL Headquarters 10 Sector Assam Rifles PIN- 934830 c/o 99 APO 5022968/CKP-31AR/Discp/2016-A/502 06 Aug 2016 No C/5022968A Havildar/Clerk Chandra Kant Parbhat 31 Assam Rifles PIN - 932031 c/o 99 APO SHOW CAUSE NOTICE
1. I have perused the proceedings of the Court of Inquiry held to inquire into the aspect of your enrollment by producing false/fake documents and have also perused your Assam Rifles Recruiting form.
2. I have observed the followings lapses on your part :-
(a) You submitted a Residential Certificate dated 16 Jan 2012 at the time of enrollment issued by Deputy Commissioner, Aizawl District, Aizawl (Mizoram) mentioning you as the resident of CVL WP(C) No. 156 of 2017 Page 2 of 8 Remruata, H/No 03 Venghlui, Aizawl. However, you belong to Village and Post Office - Rampur Ratnakar Sarsai, Police Station
- Sarai, District - Vaishali (Bihar). Office of the Deputy Commissioner, Aizawl District, Aizawl vide letter No. J.25013/7/2015- DC(A)/6 dt 24 Sep 2015 has informed that the said Residential Certificate produced by you at the time of enrollment is found to be FAKE.
(b) Notwithstanding the above, at the time of your enrollment you have stated that you are a permanent resident of Village and Post Office - Remruata, Police Station - Trasury Square, Aizawl District, PIN - 796015 and the same was your place of birth well knowing the fact that you are a domicile of Village and Post Office - Rampur Ratnakar Sarsai, Police Station - Sarai, District
- Vaishali (Bihar).
3. It appears to me that on account of the above lapses, your services are required to be terminated on ground of furnishing false and incorrect information at the time of enrollment.
4. You are, therefore, afforded this opportunity to explain your defence/reasons on the above counts as to why you should not be dismissed from service under the provisions of Section 11(2) of Assam Rifles Act, 2006 read with Rule 22 of Assam Rifles Rules, 2010.
5. You are hereby required to submit your reply to this Show Cause Notice within one month of its receipt, failing which it would be assumed that you have no grounds to urge against the proposed action and an ex parte decision will be taken.
CONFIDENTIAL
6. A copy each of the following documents is forwarded herewith for your perusal and to enable you to prepare and submit your reply:-
(a) A copy of Court of Inquiry proceedings held in relation to your case less findings and opinion.
(b) Office of the Presiding Officer, 19 Assam Rifles letter No B/19AR/A/1917/Edn Cert/2015/176 dt 01 Sep 2015.
(c) Office of the Deputy Commissioner, Aizawl District, Aizawl letter No. J.25013/7/2015-DC(A)/6 dt 24 Sep 2015.
(Sandeep Mohla) Brigadier Deputy Inspector General Copy to:-
1. HQ DGAR - For info pl.
(A-Discp/Law/ Record branch) Shillong-10
2. HQ IGAR (S) - For info pl.
A Branch PIN - 932555 c/o 99 APO 31 Assam Rifles - Three copies of show cause notice are encl herewith. PIN - 932031 You are requested to obtain sig of the indl on the c/o 99 APO prescribed space and fwd ink signed copy to this HQ for records.
WP(C) No. 156 of 2017 Page 3 of 83. Office copy Received above Show Cause Notice in original on 06 Aug 2016 C/5022968A Hav/Clk Chandra Kant Parbhat 31 Assam Rifles PIN - 932031 c/o 99 APO CONFIDENTIAL"
4. The petitioner replied to the Show Cause Notice and filed a detailed explanation and contended therein that all the allegations were false and that also the complainant himself was not present in the inquiry and nor was he examined or cross-examined.
5. By the impugned order 01.10.2016, the respondent No. 3 on perusal of the reply to the Show Cause Notice offered by the writ petitioner found that the same was unsatisfactory and in exercise of the powers under Section 11 (2) of the Assam Rifles Act, 2006 read with Rule 22 of the Assam Rifles Rules, 2010 dismissed the petitioner from service for furnishing fake and incorrect information at the time of enrollment.
6. I have heard learned counsel for the parties.
7. Mr. S.D. Upadhaya, learned counsel for the petitioner submits that there has been a grave procedural irregularity in conducting the proceedings which culminated in dismissal of the petitioner inasmuch as the dismissal order had been on the basis of the Court of Inquiry and the impugned order was passed in exercise of the power under Section 11 (2). He further submits that Section 30 of the Assam Rifles Act, 2006 is the provision which should have been applied in the proceeding in such matters and not the Court of Inquiry as had been done in the case of the petitioner. Section 30 of Assam Rifles Act, 2006 is quoted herein below:
"30. Fraudulent enrolment.- Any person subject to this Act who knowingly attempts to get enrolled or enrolls any other person who does not fulfil the conditions enabling him to be enrolled, shall, on conviction by the Assam Rifles Court, be liable to suffer imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned."WP(C) No. 156 of 2017 Page 4 of 8
8. He further submitted that the Court of Inquiry not being proceedings of the Assam Rifles Court or trial, as prescribed by Section 30, is vitiated for non-compliance with the statutory Acts and Rules, and as such the finding of such an enquiry being bad in law, is liable to be set aside.
9. Per contra, Mr. R. Debnath, the learned CGC has resisted the submissions of the learned counsel for the writ petitioner by interpreting the real meaning of 'Section 30' of the Assam Rifles Act, and submitted that the same will apply only to a person who knowingly attempts to get enrolled or enrolls any other person who does not fulfill the conditions for enrollment shall be covered by the said Section, and not a person who is already in service in the Assam Rifles on the basis of false certificates or declaration. As such, the procedure adopted, and the convening of a Court of Inquiry and dismissal under Section 11 (2) are correct and there is no irregularity whatsoever.
10 . He further submits that in the submission of a fake certificate for the purpose of enrollment or recruitment into service, especially as in the present case, of a domicile certificate, the same has deprived a genuine resident of the State of Mizoram of gainful employment. He has also placed on record Office Memorandum dated 10th January, 2013 issued by the Department of Personnel and Training, Government of India which has laid down as follows:
"No.36011/1/2012-Estt. (Res.) Government of India Department of Personnel and Training Establishment (Reservation) Section North Block, New Delhi-110001 Dated the 10th January, 2013.
OFFICE MEMORANDUM Sub:- Action against Government servants who get appointment on the basis of false SC/ST/OBC certificates.
The undersigned is directed to invite reference to this Department's OM No.11012/7/91-Estt.(A) dated 19.5.1993 which provides as under:-
"Wherever it is found that a Government servant, who was not qualified or eligible in terms of the recruitment rules etc., for initial recruitment in service or had WP(C) No. 156 of 2017 Page 5 of 8 furnished false information or produced a false certificate in order to secure appointment, he should not be retained in service. If, he is probationer or a temporary Government servant, he should be discharged or his services should be terminated. If he has become a permanent Government servant, an inquiry as prescribed in Rule 14 of CCS(CCA) Rules, 1965 may be held and if the charges are proved, the Government servant should be removed or dismissed from service. In no circumstances should any penalty be imposed".
2. The position WQS reiterated vide this Department's OM No. 42011/22/2006- Estt.(Res.) dated the 29th March, 2007 that the cases other than those protected by the specific order of the Apex Court should be dealt with in accordance with the instructions contained in the aforesaid O.M. However, it has been observed that disciplinary proceedings in the cases involving appointments on the basis of false/fake caste certificates take considerable time and the persons who have secured employment on the basis of false caste certificates enjoy the benefits of Government service whereas such Government servants should be removed/dismissed from the service at the earliest.
3. It is requested that disciplinary enquiries involving the matter of securing jobs on the basis of false/fake certificates should be completed in a time bound manner and unscrupulous persons who have got appointment on the basis of fake/false caste certificates should not be retained in service and should be dismissed/removed henceforth.
4. Contents of this OM may be brought to the notice of all concerned.
Sd/-
(Sharad Kumar Srivastava) Under Secretary to the Government of India"
11. Mr. R. Debnath, learned CGC has also placed on record Office Memorandum dated 1st June, 2017 issued by Ministry of Personnel, Public Grievances and Pensions, Government of India which is on the same lines and recommended that "if a Government servant on inquiry is found to have furnished false information or produced false certificate in order to secure appointment, he should not be retained in service and should be removed or dismissed. In no circumstances should any penalty be imposed".
12. To fortify his submission, Mr. R. Debnath, learned CGC has submitted that in the inquiry, the charges against the petitioner has been proved beyond reasonable doubt, inasmuch as, the Deputy Commissioner, Aizawl District, Aizawl (Respondent No. 5) had also substantiated that the certificate furnished was false. He further submits that even the educational certificates which have been furnished were WP(C) No. 156 of 2017 Page 6 of 8 also certified to be false by the Institute from which the petitioner purportedly obtained them from.
13. After careful consideration of the material on records and submissions by learned counsel for the parties, the only point for consideration is to whether the proceedings were in order, inasmuch as, the writ petitioner has not been able to refute the falsity of the certificate and the other materials that were produced at the time of inquiry. The petitioner had been supplied copies of the letters by which domicile and educational certificates had been certified to be fake which he did not counter. Coupled with these facts is the fact that also has not disputed that he was not given ample opportunity to defend himself in the proceedings.
14. As aforementioned, the only point to be decided is with regard to the proceedings under Section 11 (2). Section 11 (2) provides that:
"11. Dismissal, removal or reduction by Director-General and by other officers,-
(2) An officer not below the rank of Deputy Inspector-
General may dismiss or remove from the service any person under his command other than an officer or a subordinate officer of such rank or the ranks as may be prescribed."
15. Further, Rule 22 of the Rules provides the procedure to be adopted in connection with termination of service on the ground of furnishing false or incorrect information at the time of appointment or enrolment. The same is quoted herein below:
"22. Termination of service on grounds of furnishing false or incorrect information at the time of appointment or enrolment.- The Central Government or authority as the case may be, as specified in rule 17, may terminate the service of a person subject to the Act on grounds of furnishing false or incorrect information at the time of appointment or enrolment of that person in the service.
Provided that action under this rule shall not be taken without the competent authority giving the person concerned a show cause notice giving one month time to urge grounds, if any, in his defence, and his explanation being found unsatisfactory."WP(C) No. 156 of 2017 Page 7 of 8
16. On perusal of Section 30 of the Act, I am inclined to accept the submission of Mr. R. Debnath, learned CGC, that the same shall apply only to the person who knowingly attempts to get enrolled or enrolls any other person who does not fulfill the conditions for enrollment shall be covered by the said Section. In the present case the writ petitioner had not caused the enrollment of any other person on false certificates or declaration but had obtained and produced the false certificate by himself for the purpose of his recruitment. As such, in my opinion Section 30 not being attracted, there is no question that the matter be taken to the Assam Rifles Court.
17. The findings of the Court of Inquiry having been arrived at after following due process, and the punishment inflicted being as per the Act and Rules, there is no case made out for interference by this Court, and the writ petition stands dismissed.
18. The parties to bear their own costs.
JUDGE Meghalaya 20.03.2019 "V. Lyndem PS"
WP(C) No. 156 of 2017 Page 8 of 8