Allahabad High Court
Neelu Dwivedi vs Artificial Limbs Manufacturing ... on 16 July, 2021
Bench: Manoj Misra, Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED AFR Court No. - 40 Case :- SPECIAL APPEAL DEFECTIVE No. - 202 of 2021 Appellant :- Neelu Dwivedi Respondent :- Artificial Limbs Manufacturing Corporation Of India And 4 Others Counsel for Appellant :- Tarun Varma,Kaushalendra Nath Singh Counsel for Respondent :- Bal Mukund Hon'ble Manoj Misra,J.
Hon'ble Rohit Ranjan Agarwal,J.
(Delivered By Manoj Misra, J)
1. This intra-court appeal arises from a judgment and order dated 27.01.2021 of a Single Judge in Writ A No. 7132 of 2020 disposing off the writ petition of the appellant.
FACTS GIVING RISE TO THE APPEAL
2. The appellant (writ petitioner @ petitioner) filed Writ A No. 7132 of 2020 for quashing the suspension order dated 16.12.2019 and five departmental charge-sheets issued to her as also for a direction upon the respondents not to take coercive action against her pursuant to the said charge-sheets.
3. The appellant was appointed as Secretary to the Chairman-cum-Managing Director (for short CMD), Artificial Limbs Manufacturing Corporation of India (for short ALIMCO), Kanpur, a Government of India undertaking, vide letter dated May 10, 2000, on her selection pursuant to an Advertisement dated 20.02.2000. She joined the post on 01.06.2000. On 21.08.2007, she was designated as Deputy Manager (P & A) with additional duties at CMD Secretariat and as a Public Information Officer. Thereafter, on 01.07.2012, she was promoted on E-4 level post of Manager (P & A) and was assigned additional duties of a Vigilance Officer. Later, on 01.01.2015, she was promoted to E-5 level post as Senior Manager (P & A) and, on 03.08.2018, was transferred to APOC (ALIMCO Prosthetic and Orthotic Centre) from P & A department. It is the case of the appellant that a close relative of the CMD (third respondent) was appointed as Marketing Officer in the respondent company in the year 2015. A complaint in respect of nepotism was made in the Ministry concerned. Some officers, inimical to the appellant, poisoned the third respondent that the complaint is at the behest of the appellant. As a consequence whereof, persecution of the appellant began resulting in issuance of five charge-sheets preceded by suspension.
4. In the writ petition the appellant claimed that the charge-sheets were to harass the petitioner by raising stale and frivolous issues; and were deliberately issued during the lock-down period to conduct enquiry through virtual mode to the detriment of the petitioner even though it was not permissible under the Rules.
5. The learned Single Judge by the impugned judgment and order rejected the prayer of the appellant to quash the charge-sheets and the order of suspension, however, after recording the undertaking of the respondents that they would hold a de novo inquiry in respect of three charge-sheets dated 01.06.2020; 12.06.2020; and 13.06.2020, wherein the inquiry had proceeded substantially, the learned Single Judge disposed off the petition by providing that the enquiry officer would conduct the inquiry at Kanpur; the appellant would cooperate in the inquiry and would not seek unnecessary adjournments; the reply to the charge-sheets would be submitted within a month, if not already filed, and the inquiries shall be completed within a period of three months provided the appellant co-operates.
6. Aggrieved with the refusal of the prayer to quash the impugned charge-sheets and the order of suspension, this intra-court appeal has been filed by the writ petitioner against the judgment and order of the learned Single Judge.
7. We have heard Sri Shesh Kumar and Sri Tarun Varma for the appellants; Sri Rahul Shukla and Sri Bal Mukund, for the respondents.
AN EXAMINATION OF THE ALLEGATIONS IN THE IMPUGNED CHARGE-SHEETS
8. Before we proceed to notice the submissions of the learned counsel for the parties, it would be apposite for us to have a glimpse at the five impugned charge-sheets and the order of suspension dated 16.12.2019 to have a clear understanding of the context.
9. The impugned order of suspension has been passed by the General Manager (Marketing) & Disciplinary Authority in contemplation of departmental inquiry in exercise of power conferred upon it by Rule 20 (1) of the Artificial Limbs Manufacturing Corporation of India, Kanpur, Conduct, Discipline & Appeal Rules, 1975 (for short the Rules, 1975). The suspension order does not specify the misconduct with reference to which the appellant was placed under suspension.
10. The five impugned charge-sheets were collectively filed as Annexure 4 to the writ petition. The allegations in those charge-sheets along with our brief observation in respect of the thrust of the charge(s) mentioned therein are being summarised below:
10(i). Charge-sheet dated 13.03.2020 (Reference No. GM(M)A-30/ND/01) (hereinafter referred to as the first charge-sheet) contains two articles of charge:
ARTICLE 1 is to the effect that according to the advertisement, pursuant to which the petitioner applied for appointment, the educational qualification prescribed was (i) Graduate in any discipline with a speed of 100/40 wpm in the Shorthand/Typing and (ii) Diploma in Secretarial Practice from a recognised institute. In her curriculum vitae (for short 'CV'), against educational qualification column, petitioner mentioned "B.Sc from Kanpur University in the year 1996", whereas against professional column, the petitioner had mentioned just Secretarial Course with Shorthand and Typing from ITI, Kanpur. It is alleged that the petitioner intentionally concealed year of passing the examination as 1996 as both these educational pursuits were regular and full time courses and could not have been simultaneously pursued and completed in the same year 1996. Thus, it could be inferred that the petitioner deliberately concealed the year of passing in her application, dated February 24, 2000, and thereby obtained employment in ALIMCO by committing fraud.
ARTICLE 2 is to the effect that in the advertisement, in addition to the educational qualifications, work experience was required as follows: (i) 5 years' experience as Personal Assistant in Govt/Pvt. Sector Undertaking/Private Sector and (ii) Proficiency in using computer for secretarial job, having familiarity with windows environment. But, the petitioner in respect of the above requirement, in her 'CV', mentioned: (i) worked in Hotel Landmark, as Front Office Assistant (1996), without mentioning the exact period of such work; (ii) worked in Shivgarh Resorts Ltd. (a member of Suman Motels Ltd.) as a Regional Coordinator (1996-1998), without mentioning the exact period of such work; and (iii) presently working with Precitex Components Mfg Co (a Div of Lohia Starlinger), as Secretary to General Manager, since August, 1999. It is alleged that on the date of the advertisement i.e. 20.02.2000 she did not have work experience of 5 years as Personal Assistant but only of about 3 years 6 months and therefore, even though the requirement of experience was relaxed with the approval of CMD, the petitioner did not hold the requisite experience. It is also alleged that when verification of the work experience was sought from Vice President (HR), Lohia Corp Ltd. in the year 2018, it was intimated that the appellant had worked there since 20.12.1999. This indicated that the petitioner had falsely disclosed that she was working there since August 1999. By stating, as above, it was alleged that the petitioner obtained appointment by playing fraud.
Annexure III to the first charge-sheet provided the material in support of the articles of charges framed against the petitioner.
10(ia) In respect of the charge mentioned in Article 1, extracted above, the advertisement, as published in the Hindustan Times on 20.02.2000; and the application of the writ petitioner, dated 24.02.2000, by which she applied for appointment on the post of Secretary to CMD by enclosing her 'CV', were amongst others placed as documents to support the charge. To have a clear cut understanding of how charge mentioned in Article 1 was drawn in the first charge sheet (supra), it would be useful to extract paragraph nos. 5, 6 and 7 of Annexure II to the charge-sheet (supra) below:-
"5. In order to verify the genuineness of her qualifications and years of passing, GM(P&C). ALIMCO and DGM(QC) & Vigilance Officer, ALIMCO vide Letter No. GM(P & C)/01AU dated 27.8.2018 addressed a communication to Joint Director, Government ITI, Pandu Nagar Kanpur, regarding the correctness and validation of certificates of Miss Neelu Dwivedi, Sr. Manager (APOC), ALIMCO citing that she has declared that in the year 1996, she passed B.Sc (Biology) from S N. Sen College, Kanpur and did her secretarial course from ITI/AFWWA in 1996 itself as well as worked in Hotel Landmark from January, 1996 to December, 1996. B.Sc and secretarial course both being regular have been completed at the same time were sought. Joint Director (Training), Kanpur Division, Office of Government Industrial Training Institute, Pandunagar, Kanpur vide his letter No.N.C.V.T./Training/Certificate/2018/1097, dated 4.9.2018 addressed to GM (P&C), ALIMCO, Kanpur informed that "Ms. Neelu Dwivedi (Enrolment No. 45416040), D/o Shri Ramkaran Dwivedi has taken admission in Industrial Training Institute, Chakeri, Kanpur Nagar in the admission session of August, 1995-96 and passed All India Professional English Stenography Examination in July, 1996. She has been granted Mark Sheet under Sl. No. 92 and 133526 by State Council for Vocational Training, Uttar Pradesh, Lucknow. Therefore, photocopy of Mark Sheet No. 92 and 133526 of Ms. Neelu Dwivedi, D/o Shri Ramkaran Dwivedi, provided by you has been verified from the office records and copy duly verified is enclosed herewith.
6. Further, in order to verify the genuineness of her qualifications and years of passing, GM(P&C), ALIMCO and DGM (QC) & Vigilance Officer, ALIMCO addressed a Letter No. GM (P&C)/01/AU, dated 30.08.2018 to Registrar, Chhatrapati Shahu Ji Maharaj University, Kalyanpur, Kanpur enclosing therewith B.Sc certificate of Miss Neelu Dwivedi for correctness and validation. Controller of Examination/Asstt/Dy. Registrar, Examn. Controller, Chhatrapati Shahu Ji Maharaj University, Kanpur-208024 vide Letter No. C.S.J.M.U./Secret (Verification)/1209/2018, dated 30.08.2018 informed GM (P&C), ALIMCO, Kanpur that Miss Neelu Dwivedi passed B.Sc. (Regular) in the year 1996 with second division.
7. Thus, it is evident that Miss Neelu Dwivedi, Senior Manager & Incharge (APOC), Artificial Limbs Manufacturing Corporation of India, Kanpur during the year 2000 vide her application, dated 24 February, 2000, in the curriculum vitae against educational qualification column, had mentioned "B.Sc from Kanpur University Year 1996". Against professional qualification column, she had mentioned only Secretarial Course with Shorthand and Typing from ITI, Kanpur and intentionally concealed year of passing the examination as 1996. Since both these courses are regular and full time courses and cannot be simultaneously pursued and completed in the same year 1996, she intentionally and deliberately concealed year of passing of diploma course in her application dated 24 February, 2000 and obtained employment in Artificial Limbs Manufacturing Corporation of India (ALIMCO) by giving false information, thereby committed fraud on the Corporation and willfully and knowingly acted against the interest of the Corporation.
Miss Neelu Dwivedi by her above act exhibited lack of integrity and conduct unbecoming an employee of Corporation and thereby violating Rule 4 (1)(i), (iii) and also Rule 5 (4), 5(5), 5(21) of Artificial Limbs Manufacturing Corporation of India, Kanpur, Conduct, Discipline and Appeals Rules. "
10.(ib) At this stage, we may observe that the above charge is not in respect of submitting a forged or fabricated certificate but is with regard to the validity of the certificate.
10.(ic) Similarly, for having a clear picture of Article II of the charges contained in charge-sheet dated 13.03.2020 (supra), we are extracting paragraph nos. 2, 3, 4 and 5 from Annexure II relating to Article II below:-
"2. Miss Neelu Dwivedi vide her application, dated 24.2.2000 applied for the post of Secretary to CMD, ALIMCO and enclosed her curriculum vitae. In the curriculum vitae against the column Work Experience, she had mentioned (i) Worked in Hotel Landmark as Front Office Assistant (1996). The exact period has not been mentioned. (ii) Worked in Shivgarh Resorts Ltd. (a member of Suman Motels Ltd) as a Regional Coordinator (1996-1998). The exact period has not been mentioned i.e. date and month (iii) Presently working with Precitex components Mfg Co (a Div of Lohia Starlinger) as Secretary to General Manager since August, 1999.
3. In the prescribed application proforma of ALIMCO duly signed by Miss Neelu Dwivedi on 1.5.2000, under column 17 experience, she has mentioned as under:
Name and address of the employer Designation Period From to Nature of Work Basic Pay Total Reasons for leaving Hotel Landmark (The Mall, Kanpur) Front Office Assistant Jan 96 to Dec 96 Customer Service
-
2500/-
Working in shift Shivgarh Resorts Ltd. 3rd floor Commerce Centre, Chuniganj Regional Co-ordinator Dec 96 to Dec 98 Customer Service & Coordination with all the branches
-
3200/-
Better opportunity Precitex Components Ltd. Mallaman Chaubepur Secretary to GM Not legible as ink put on the writing to till date Corresponding with all the records, customers, maintaining records, arranging in house training, all the work relates to GM etc. 2800/-
4500/-
In the last page of the said prescribed application proforma, she has further mentioned "I solemnly declare that the particulars furnished in this application are true and correct to the best of my knowledge and belief. I clearly understand that any mis-statement of facts contained therein or willful concealment of any material facts will render me liable to appropriate action as may be decided by the Company. This has been signed by her on 1.5.2000.
4. Thus, it is seen that the details of her experience as claimed by her at the time of applying for the post of Secretary to CMD was as under:-
(i) M/s. Landmark from January, 1996 to December, 1996 - 11 months (experience certificate not produced by showing inability to produce the same.
(ii) Shivgarh Resorts from 5.12.1996 to 31.12.1998 - 2 years 1 month (experience does not seems to be relevant experience).
(iii) Precitex Components (Unit of Lohia Starlinger) from August 1999 to 31.5.2000 - 6 months as per bio-data submitted at the time of application, experience counted till the date of advertisement i.e. 20.2.2000).
From the above, it is apparent that she claimed 3 years and 6 months experience in the job application which is below the advertised experience of 5 years. However, the prescribed experience was relaxed with the approval of CMD, ALIMCO to 4 years instead of 5 years for those candidates having Diploma in Secretarial Course. Miss Neelu Dwivedi was not entitled for said relaxation in view of the fact that she was not having Diploma in Secretarial Practice. Even, if the relaxation of one year experience is taken into account/considered in favour of Miss Neelu Dwivedi then also she was not fulfilling requisite experience as she was in possession of only 3 years and 6 months of experience plus 1 year Diploma in Secretarial Practice = 4 years and 6 months. Besides, she did not produce the experience certificate of Hotel Landmark which reduces the effective experience to 3 years and 6 months.
5. In order to verify the experience certificate of Miss Neelu Dwivedi in respect of M/s. Precitex Components, a letter No. DGM/01/AU dated 8.9.2018 was addressed to Vice President (HR), Lohia Corp Ltd., Lohia Industrial Complex, Chaubepur, Kanpur by DGM (QC) & VO and GM (P & C), ALIMCO, Kanpur. Manager (HR), Lohia Corp Ltd., Kanpur vide letter No. LCL : PERS:CERT:2018 dated 9.9.2018 intimated/verified service certificate of Miss Neelu Dwivedi and stated she has worked from 20.12.1999 to 31.5.2000 as Stenographer. Thus, it is evident that Miss Neelu Dwivedi in her curriculum vitae dated 24.2.2000 has mentioned false work experience i.e. "presently working with Precitex Components Mfg Co (a Div of Lohia Starlinger) as Secretary to General Manager since August, 1999" whereas she was working there from 20.12.1999."
10.(id) At this stage, we may observe that the above charge is not in respect of submitting a forged or fabricated certificate but is in respect of: (a) not holding the prescribed experience; and (b) giving incorrect information with regard to work experience at M/s Precitex Components in her CV. Interestingly, the information with regard to work experience at Precitex Components in the application form submitted by the appellant on which appointment was processed does not disclose as to from which date she had worked there. Noticeably, as per the imputation, that column was blotched by ink spill. Whether experience certificate was annexed with the application or the CV, the charge-sheet is silent. Thus, it can be assumed that the charge has been levelled on the basis of incorrect disclosure in the CV. Whether the entry in the CV was relied upon to provide her appointment is not clear from the charge sheet. What is important is that even if her CV (bio-data) entry is taken as correct, she neither had prescribed 5 years of experience nor did she have 4 years' experience upto which, according to the charge sheet, there was relaxation.
10.(ii) Charge-sheet dated 13.03.2020 Reference No. GM(M)A-30/ND/02 (hereinafter referred to as the second charge-sheet), this charge-sheet contains a single article of charge which is to the effect that the appellant during the years 2009 and 2011 while working as Deputy Manager (P & A) in ALIMCO, Kanpur had applied for the post of (i) Deputy Registrar, Indian Institute of Technology, Kanpur on 28.8.2009 and (ii) Deputy General Manager (Pers & Admn) in National Seeds Corporation Limited on 02.09.2011 for outside job by giving false and misleading information pertaining to her qualifications as passed (i) B.Sc in the year 1996 from S.N. Sen BVPG College, Kanpur and (ii) shorthand one year course from ITI, Kanpur in the year 1997, whereas in her application for initial appointment in ALIMCO for the post of Secretary to CMD, she had mentioned she has done/passed both these full time regular courses in the same year 1996. Thus, by furnishing false information to prospective employer, she committed fraud on public with sole motive of self career progression and personal gain.
10.(iia) At this stage, we may observe that Annexure III to the second charge sheet though gives a list of documents by which the charge is to be proved but does not mention about submission of any certificate by the appellant to show that she passed one year course from ITI, Kanpur in the year 1997. Thus, the charge is not of submitting a forged document but of submitting incorrect information in the application in respect of the year in which the appellant passed one year course from ITI, Kanpur.
10.(iii) Charge-sheet dated 01.06.2020 Reference No. GM(M)A-30/ND/03 (hereinafter referred to as the third charge-sheet), this charge-sheet contains two articles of charge:
(a) Article 1 is to the effect that the petitioner was transferred vide Office Order No. 26/2018, dated 3.8.2018 to APOC, Head Office, Artificial Limbs Manufacturing Corporation of India, Kanpur. In terms of clause 2 of the said Office Order dated 03.8.2018, she was directed to hand over all important files to Shri M.S. Puri, Manager (P & A) before getting relieved. In violation of said instructions, she did not hand over key Recruitment File No. AD 3F 01/2013 relating to recruitment of Officer (L & IR).
(b) Article 2 is to the effect that during the year 2018 while functioning as HOD of P & A Department, the petitioner has intentionally and deliberately committed gross irregularities in the recruitment of Quality Control Assistant (Mechanical & Electronics) by not resorting to double checking the contents of Minutes of Screening Committee for the said post in spite of clear instructions to do so, with the result, the entire process of recruitment and selection had to be cancelled by the ALIMCO Management resulting in loss of time, money and reputation of the Corporation.
10.(iv) Charge-sheet dated 12.06.2020 Reference No. GM(M)A-30/ND/04 (hereinafter referred to as the fourth charge-sheet), this charge-sheet contains solitary article of charge, which is to the effect that while working as Manager (P & A) in the Administrative Department of the Artificial Limbs Manufacturing Corporation and dealing with the file relating to the recruitment process, during the year 2013, for the post of Officer (P & O) she intentionally did not recommend name of one applicant Sh. Jeetendra Kumar on the ground that the above applicant had filed a legal case against the Corporation which was pending in the High Court of Karnataka, in spite of the fact that the name of the above candidate was recommended by duly constituted Scrutiny Committee for inclusion in the selection process. Thus, the petitioner arbitrarily and knowingly suppressed the name of Shri Jeetendra Kumar from the list of shortlisted candidates and did not include his name thereby denying him rightful opportunity for appointment on the said post.
10.(v) Charge-sheet dated 13.06.2020 Reference No. GM(M)A-30/ND/05 (hereinafter referred to as the fifth charge-sheet), this charge-sheet contains two articles of charge:
(a) Article 1 is to the effect that the petitioner during the period of August to December 2019, during her posting at APOC, was habitually absenting herself from workplace and taking leave without any prior permission or approval. Despite written orders issued by the Competent Authority, she remained absent from duty on 114.5 days with irregular attendance during the period from August 2018 to December 2019 in violation of ALIMCO Leave Rules read with Office Order No. 11/2016, dated 18.4.2016.
(b) Article 2 is to the effect that the petitioner during the year 2019 has availed 30 days Earned Leave. In terms of Clause 4(d) of Artificial Limbs Manufacturing Corporation Leave Rules, every application for grant of Earned Leave should be submitted at least seven days before the commencement of the leave where the leave asked for is less than 15 days. If the leave asked for is more than 15 days, the leave application should be submitted 14 days before the commencement of the leave. Any relaxation to this rule, in special circumstances, may be done only with the prior approval of CMD, ALIMCO.
It is alleged that in violation of such rules, the petitioner availed Earned Leave as follows:-
(i) 3.12.2018 to 06.12.2018
(ii) 14.01.2019 to 18.01.2019
(iii) 5.8.2019 to 06.08.2019 SUBMISSIONS ON BEHALF OF THE APPELLANT
11. The learned counsel for the appellant submitted that out of the five charge-sheets that were served upon the appellant, charge-sheet dated 13.03.2020 (Reference No. GM(M)A-30/ND/01) was in respect of furnishing certain information in the year 2000 at the time of seeking initial appointment and therefore, initiating proceedings in respect thereof, after 20 years of service, amounts to persecution, undue harassment and, on that very ground, the said charge-sheet is liable to be quashed at the threshold. It was submitted that the said charge-sheet does not disclose that any of the documents submitted at the time of appointment were forged or false rather it questions the validity of the eligibility certificates even though the authority concerned had verified those certificates. It was argued that so long those certificates stand uncanceled and are verifiable, the employer has no jurisdiction to question the validity of those certificates, that too, after 20 years of service. It was urged that from the charge itself it appears the requirement of having work experience was relaxable and, therefore, once appointment was offered by relaxing the work experience requirement, the employer is estopped from questioning the eligibility on that ground, particularly, after 20 years of service. It was submitted that while addressing the prayer of the appellant to quash the said charge-sheet, the learned Single Judge failed to consider these vital aspects. Hence, the order of the learned Single Judge is liable to be set aside.
12. In respect of the second charge-sheet dated 13.03.2020 (Reference No. GM(M)A-30/ND/02) it was urged that the charge levelled therein is not at all referable to any kind of misconduct on the part of the appellant in respect of her employment with ALIMCO, inasmuch as the charge levelled therein is in respect of certain information provided by the appellant to a prospective employer for seeking appointment under it. It has been urged that by taking that information as a piece of evidence to suggest that the petitioner had not given correct information at the time of her own appointment, the second charge-sheet has been drawn separately, which is totally misconceived as it just multiplies the same charge levelled in the first charge-sheet. It is, thus, urged that the second charge-sheet being not referable to any separate misconduct under the employment of ALIMCO than what was already alleged in the first, amounts to undue harassment and, therefore, the second charge-sheet is liable to be quashed. It is urged that the learned Single Judge has failed to notice this aspect of the matter.
13. It was next urged that the remaining three charge-sheets raise frivolous minor issues just to harass the appellant and the very fact that all the charge-sheets were issued within a short period of three months, during the course of the lock-down, and the inquiry proceeded through virtual mode, it was clear that the respondents were proceeding against the appellant mala fide, with a per-determined notion.
14. Lastly, it was urged that as the first two charge-sheets are not at all sustainable in law, and the misconduct alleged in the other three charge-sheets is not of a nature that may entail a major punishment, the order of suspension is not warranted and the same is liable to be quashed. It was urged that since the learned single judge has not properly addressed the issues/ aspects mentioned above, the impugned judgment of the learned single judge is liable to be set aside and the writ petition of the appellant deserves to be allowed.
15. To support the above submissions, on behalf of the appellant, following decisions were cited:
(i) P.V. Mahadevan vs. MD. T.N. Housing Board, (2005) 6 SCC 636 wherein it was held that inordinate delay of 10 years in initiating departmental enquiry, in absence of convincing explanation by the employer, would be extremely prejudicial to the incumbent and therefore, the charge memo is liable to be quashed.
(ii) State of A.P. vs. N. Radhakishan, (1998) 4 SCC 154 wherein it was observed that whether delay vitiates disciplinary proceedings has to be considered taking into account all relevant facts and circumstances.
(iii) State of Punjab and others Vs. Chaman Lal Goyal, (1995) 2 SCC 570 wherein, in paragraph 9 of the judgment, it was observed that it is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. Such delay would not be fair to the delinquent officer and it also makes the task of proving the charges difficult and is thus, not also in the interest of administration. But how long a delay is too long always depends upon the facts of a given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances.
(iv) UCO Bank and others Vs. Rajendra Shankar Shukla, (2018) 14 SCC 92 wherein a delay of 7 years in issuing charge-sheet was considered fatal.
(v) Sarwan Singh Lamba and others Vs. Union of India and others, (1995) 4 SCC 546 wherein appointments were not interfered with particularly when there was no fraud and were of persons duly qualified and eligible for the post.
(vi) Sanatan Gauda Vs. Berhampur University, 1990 (3) SCC 23 wherein, by applying the principle of estoppel, upon finding that a candidate had taken admission and had given examination of Law Course, it was held that the University could not deprive him of the fruits of his result on the ground that the student was ineligible for admission in the law course.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS
16. Learned counsel for the respondents submitted that under Office Memorandum dated 19.05.1993 action could be taken against Government Servants if, later, they are found ineligible or unqualified for their initial recruitment. It was urged that Government of India, Ministry of Personnel, P.G. & Pensions (Department of Personnel and Training), upon consideration of decision of the Supreme Court in District Collector, Vijyanagram vs. M. Tripura Sundari Devi, 1990 (4) SLR 237, has issued a circular as follows:-
"The matter has been examined in consultation with the Ministry of Law and Justice and it has now been decided that 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 furnished false information or produced a false certificate in order to secure appointment, he should not be retained in service. If he is a probationer or a temporary Govt. servant, he should be discharged or his services should be terminated. If he has become a permanent Govt. 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 other penalty be imposed."
17. By referring to the said circular, the learned counsel for the respondents also placed before us Rule 5(4) of the Rules, 1975 so as to demonstrate that "Misconduct" includes furnishing false information regarding name, age, father's name, qualification, ability or previous services or any other matter germane to the employment at the time of employment or during the course of employment.
18. It was urged that since charge-sheet (i) and (ii) {referred to in paras 10.(i) and 10(ii)} were in respect of furnishing false information, no period of limitation would apply for initiating departmental inquiry and therefore, the prayer of the writ petitioner to quash the departmental inquiry at the threshold is not at all sustainable. Learned counsel for the respondents further urged that other three charge-sheets, namely, charge-sheet (iii), (iv) and (v) {referred to in paras 10.(iii), 10.(iv) and 10.(v)} are referable to recent misconduct of the petitioner and therefore, there is no substance in the prayer of the petitioner. He further submitted that the petitioner in her writ petition had not made any specific statement as to what prejudice would be caused to her by the delay in drawing disciplinary proceeding against her therefore, her plea to quash the charge-sheets on the ground of delay is not at all sustainable.
19. Learned counsel for the respondents placed reliance on the following decisions:
(i) District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and another Vs. M. Tripura Sundari Devi, (1990) 3 SCC 655 wherein it was held that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice.
(2) Ram Saran vs. IG of Police, CRPF and others, (2006) 2 SCC 541. In that case, the appointment was secured by furnishing false birth certificate. By placing reliance on GO No. 29 of 1993, the apex court took the view that whenever 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 furnished false information or produced a false certificate in order to secure appointment should not be retained in service if the charges are proved.
(3) Secretary, Ministry of Defence and others vs. Prabhash Chandra Mirdha, (2012) 11 SCC 565. In this case, the apex court, after considering a number of decisions, held that the law does not permit quashing of charge-sheet in a routine manner. In case the delinquent employee has any grievance in respect of the charge-sheet he must raise the issue by filing a representation and wait for the decision of the disciplinary authority thereon. It was also observed that proceedings are not liable to be quashed on the grounds that the same had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. It was also held that in case the charge-sheet is challenged before a court/tribunal on the ground of delay in initiation of disciplinary proceedings or delay in concluding the proceedings, the court/tribunal may quash the charge-sheet after considering the gravity of the charge and all relevant factors involved in the case weighing all the facts both for and against the delinquent employee and must reach the conclusion which is just and proper in the circumstances.
(4) Union of India and others vs. Upendra Singh, (1994) 3 SCC 357 wherein it was held that at the stage of framing of charge it is beyond the scope of judicial review of Central Administrative Tibunal to examine the correctness of charges. It was further held that writ of prohibition can be issued only when patent lack of jurisdiction is made out.
(5) Union of India and another v. Kunisetty Satyanarayana, (2006) 12 SCC 28. In this case, it was held that, ordinarily, a writ petition impugning a show cause notice or charge-sheet is not maintainable and that in some very rare and exceptional cases, the High Court can quash the charge-sheet or show cause notice if it is found to be wholly without jurisdiction or otherwise wholly illegal.
(6) E.P. Royappa Vs. State of Tamil Nadu and another, (1974) 4 SCC 3.
(7) State of Bihar and another vs. P.P. Sharma, 1992 Supp (1) SCC 222.
The last two decisions cited are on general principles relating to the scope of judicial review.
ISSUES THAT ARISE FOR OUR CONSIDERATION
20. Having examined the impugned charge-sheets and the submissions noticed above, in our view, the issues that arise for our consideration are as follows:
(A) Whether the first charge-sheet issued to the appellant is liable to be quashed on the ground of delay; lack of jurisdiction; and on the principle of estoppel and acquiescence?
(B) Whether the second charge-sheet is liable to be quashed for it being a mere extension of the first and on the ground that it fails to disclose an act of misconduct qua the present employer (respondent herein)?
(C) Whether the third, fourth and fifth charge-sheets are liable to be quashed on ground of delay as well as mala fides, as alleged?
(D) Whether the continued suspension of the petitioner needs to be reconsidered in the light of our decision on any of the issues culled out above?
20A. Before we proceed to take up the issues culled out above, it would be useful to notice the legal principles governing quashing of departmental charge-sheet or charge, at the threshold, on the ground of delay or otherwise. In this regard, we may notice that even the decisions cited by the learned counsel for the parties are not at variance on the following aspects:
(a) long delay in initiation of departmental inquiry, in absence of proper explanation, if proves prejudicial to the incumbent, may be a ground to quash the charge-sheet; (b) ordinarily, a charge-sheet is not to be quashed by examining the correctness of the charge(s) levelled therein as that is to be examined in the inquiry; (c) a charge-sheet, however, may be quashed if it is without jurisdiction or on the face of it illegal; (d) if a decision is taken to quash the charge-sheet at the threshold, regard be had not only to the facts but also to the gravity of the misconduct alleged; and (e) where there is fraud played by an employee to secure appointment, the appointment gets vitiated and, in such a scenario, no equity comes in favour of the appointee to challenge the initiation of proceedings to question his appointment on mere ground of delay.
21. But, we may hasten to clarify, whether fraud has been played or not to secure appointment depends on the facts of a case. Ordinarily, questions related to fraud are to be left to be decided in the inquiry but superior courts, in exercise of their power of judicial review, are not precluded from examining the imputations made in the charge-sheet to find out whether, on the face of it, a case of fraud is made out or whether the employer has loosely used the word fraud to clinch jurisdiction. No doubt, while making such examination, the courts are not to assess the correctness of the allegations but if, on perusal of the allegations made in the charge-sheet itself, it finds that no case of fraud is made out it may exercise its power of judicial review.
22. In State of M.P. v. Bani Singh & Another, 1990 (Supp) SCC 738 (paragraph 4 of the judgment), the Apex Court had observed that a delay of 12 years in initiating disciplinary proceedings in respect of certain irregularities which the employer had been aware of, in absence of proper explanation, would prove fatal.
ANALYSIS ON THE ISSUES ISSUES A & B
23. As these two issues are inter-related, we deem it appropriate to deal with them under one head. Before we proceed to weigh the rival submissions in that context, we may recapitulate that the thrust of charge in the first charge-sheet is that the graduation degree and the training certificate were both regular courses and they could not be obtained simultaneously; other than that the petitioner did not have the prescribed work experience. Further, in the CV she fraudulently exaggerated her work experience under Precitex Components. Upon close scrutiny of the first charge-sheet, we find that there is no dispute between the parties with regard to:
(a) That the writ petitioner (the appellant herein) held verifiable certificates /degrees in respect of the minimum educational qualification prescribed by the advertisement. Noticeably, the prescribed educational qualifications under the advertisement were: (i) Graduate in any discipline with a speed of 100/40 wpm in shorthand typing; and (ii) Diploma in Secretarial Practice from a recognised institute. It is clear from paragraph 6 of the statement of imputations made in support of charge no.1 of the first charge-sheet dated 13.03.2020 (Reference No. GM(M)A-30/ND/01) that Controller of Examination/Asstt/Dy. Registrar, Examn. Controller, Chhatrapati Shahu Ji Maharaj University, Kanpur-208024 (for short Kanpur University) vide Letter No. C.S.J.M.U./Secret (Verification)/1209/2018, dated 30.08.2018, informed GM (P&C), ALIMCO, Kanpur that Miss Neelu Dwivedi (the appellant herein) passed B.Sc. (Regular) in the year 1996 with second division. Similarly, from paragraph 5 of the statement of imputations made in support of charge no.1 of the first charge-sheet it is clear that Ms. Neelu Dwivedi (writ petitioner-appellant herein) took admission in Industrial Training Institute, Chakeri, Kanpur Nagar in August in the academic session 1995-96 with Enrolment No.45416040 and passed All India Professional English Stenography Examination in July, 1996 and was issued Mark Sheet having Sl. No. 92 and 133526 by State Council for Vocational Training, Uttar Pradesh, Lucknow.
(b) That the writ petitioner (appellant herein) was short of the work experience prescribed by the advertisement. But the requirement of work experience was relaxable. And, according to the own stand of the respondents, requirement of work experience was relaxed from 5 years to 4 years with the approval of the CMD.
24. The interesting feature of the case is that even assuming that the CV of the petitioner, as per the allegation, disclosed incorrectly that the appellant had work experience at Precitex Components from August 1999 instead of December 1999, the said statement could not have earned her the qualification prescribed by the advertisement. Moreover, in the application seeking employment the period of work experience at Precitex Components was not disclosed. Thus, what becomes clear on the face of the record is that even assuming that she made an incorrect statement of her work experience in her CV it did not earn her the appointment. Otherwise also, it is not clear whether she made a misstatement with regard to her work experience in the application or such misstatement occurred in her 'CV' only. Thus, whether the misstatement is just an error or is deliberate is any body's guess. Therefore, holding an inquiry after 20 years of the appointment, on that ground, particularly, when we find that the requirement of having work experience as mentioned in the advertisement was relaxable, would be seriously prejudicial to the interest of the appellant. In our view, the employer who had all the material in its possession and was free not to select the appellant, is now estopped from questioning the appellant's eligibility on that count.
25. Noticeably, the writ petitioner (the appellant herein) held verifiable graduation degree and a vocational training certificate. Till such time those certificates are cancelled by the University or the Body that issued them, the employer (respondent herein) having acted upon them, in our view, would now have no jurisdiction to question the correctness of those certificates, after 20 years of their acceptance, by assuming that both the courses being regular could not have been undertaken simultaneously. Had it been a case of the certificates being forged or fabricated then the position would have been different and, in that scenario, an enquiry would be justified at any stage of her employment. But, here, the certificates were genuine and were verified accordingly. Whether in a given set of circumstances, those certificates were to be issued or not, is not within the domain of the employer to speculate upon, that too, after 20 years of offering appointment to the appellant. At this stage, we may profit by noticing a decision of the Apex Court in Bharti Reddy vs. State of Karnataka and others, (2018) 6 SCC 162. In that case, the Apex Court took the view that as long as the Income and Caste Certificate is valid and in force, a writ of quo warranto cannot be issued on the basis of assumptions, inferences or suspicion regarding the factum of fulfilment of eligibility criteria. The principle laid there would also apply here as we find that even though the educational certificates have not been cancelled, the employer has turned suspicious about the validity of those certificates on an assumption that the petitioner could not have undertaken two regular courses simultaneously. Such suspicion is unwarranted, particularly, when with open eyes, acting on those certificates, appointment was offered 20 years ago. More so, when it is not shown that those certificates were obtained fraudulently; and that, after discovery of fraud, they have been cancelled by the authorities having competence, or jurisdiction, to cancel them. Thus, in our view, the charge framed as Article 1 in the first charge-sheet dated 13.03.2020 on the face of it is illegal and beyond the domain of the employer, that too, when it has been levelled after 20 years of service in spite of the fact that all the papers relating thereto were with the employer from the beginning. We are, therefore, of the considered view that such a charge is completely arbitrary, unreasonable and a proceeding based on such a charge, after 20 years of service, particularly, when the entire material was there with the employer to frame such a charge 20 years ago, would be undue harassment of the appellant and extremely prejudicial to her. Hence, we are of the considered view that the same is liable to be quashed.
26. In respect of charge framed as Article 2 in the first charge-sheet dated 13.03.2020, it be observed that the said charge is in respect of the writ petitioner not having the requisite work experience of five years as provided in the advertisement. We have already noticed above, that in the application form as well as CV the petitioner had not disclosed that she held the requisite work experience. In fact, even if her statement with respect to her work experience in the CV is taken into account, she did not possess even 4 years of experience much less than the advertised 5 years. But, what is important to consider is that this eligibility condition in the advertisement was relaxable as is clear from the own stand of the respondents in the charge-sheet where it is admitted that by approval of the CMD, the condition of minimum work experience of 5 years was relaxed to 4 years. Importantly, it is not the case in the charge-sheet that the petitioner had submitted forged certificates to demonstrate her work experience or that on the basis of her statement in CV the employer was misled into granting her appointment. Thus, although the charge is that there is misstatement in the CV but it is not the charge that that misstatement led to her appointment because, admittedly, even by that misstatement she would not have gained the requisite work experience of either 5 years or 4 years.
27. At this stage, it would be useful to refer to a decision of the Apex Court in Dr. M.S. Mudhol And Anr. vs S.D. Halegkar And Ors, (1993) 3 SCC 591. In that case, while dealing with a challenge to the appointment of a Principal of a Higher Secondary School on a petition for issuance of a writ of quo warranto, the Apex Court refused to interfere even though it found that the incumbent did not have the requisite qualifications at the time of appointment. While dismissing the writ petition, the Apex Court took the view that having held the post for 12 years the incumbent was not liable to be disturbed from office because he had placed all his cards before the Selection Committee and the Selection Committee, for some reasons or other, thought it fit to choose him for the post. The relevant observations of the Apex Court are contained in paragraphs 6 and 7 of the judgment, which are extracted below:-
"6. Since we find that it was the default on the part of the 2nd respondent, Director of Education in illegally approving the appointment of the first respondent in 1981 although he did not have the requisite academic qualifications as a result of which the 1st respondent has continued to hold the said post for the last 12 years now, it would be inadvisable to disturb him from the said post at this late stage particularly when he was not at fault when his selection was made. There is nothing on record to show that he had at that time projected his qualifications other than what he possessed. If, therefore, in spite of placing all his cards before the selection committee, the selection committee for some reason or the other had thought it fit to choose him for the post and the 2nd respondent had chosen to acquiesce in the appointment, it would be inequitous to make him suffer for the same now. Illegality, if any, was committed by the selection committee and the 2nd respondent. They are alone to be blamed for the same.
7. Whatever may be the reasons which were responsible for the non-discovery of the want of qualifications of the 1st respondent for a long time, the fact remains that the Court was moved in the matter after a long lapse of about 9 years. The post of the Principal in a private school though aided, is not of such sensitive public importance that the Court should find itself impelled to interfere with the appointment by a writ of quo warranto even assuming that such a writ is maintainable. This is particularly so when the incumbent has been discharging his functions continuously for over a long period of 9 years when the court was moved and today about 13 years have elapsed. The infraction of the statutory rule regarding the qualifications of the incumbent pointed out in the present case is also not that grave taking into consideration all other relevant facts. In the circumstances, we deem it unnecessary to go into the question as to whether a writ of quo warranto would lie in the present case or not, and further whether mere laches would disentitle the petitioners to such a writ.
28. In this case also, the appellant had placed all her papers before the employer at the time of her recruitment. Importantly, her certificates are not found forged though, however, her statement in the CV is stated to be incorrect. But that would not have made a material difference to her candidature as she, despite that incorrect statement, was short of the requisite work experience. Therefore, since it has come on record that the condition of work experience was relaxable, an offer of appointment to her would be deemed to have been made by relaxing that condition. Now, after 20 years of service, it does not lie in the mouth of the employer to say that the appellant made a misstatement with respect to her work experience, particularly, when that misstatement could not have earned her an offer of appointment, unless that condition was relaxed or waived. Drawing proceeding against the appellant on that count, at this belated stage, in our view, would result in grave miscarriage of justice as it would amount to throwing out a person for hiding something which she never did. At this stage, it may be noticed that even the judgment in M. Tripura Sundari Devi (supra), on which reliance has been placed by the learned counsel for the respondent, leaves an exception for those cases where the eligibility condition is relaxable. For all the reasons recorded above, the second article of charge also, as framed in the first charge-sheet dated 13.03.2020 is unsustainable and is liable to be quashed.
29. At this stage, we may notice Rule 5(4) of the 1975 Rules relied upon by the learned counsel for the respondents to point out that furnishing false information regarding name, age, father's name, qualification, ability or previous services or any other matter germane to the employment at the time of employment or during the course of employment is misconduct. It is noticeable from the extracted rule itself that false information in respect of qualification, ability, or previous services should be germane to the employment at the time of employment to amount to a misconduct. Here, even assuming that appellant gave incorrect information with regard to her work experience, that was not germane to her employment because that incorrect information did not make her eligible by showing that she held the requisite work experience. Therefore, in our considered view, once we have found that the requirement of having work experience was relaxable and was relaxed to 4 years from the advertised period of 5 years, offer of appointment to a person who held even less than 4 years of work experience, in absence of any statutory rule prohibiting further relaxation, would be deemed to have been made by relaxing that condition further. Noticeably, no statutory rule with regard to the requirement of minimum work experience is stated in the charge-sheet nor shown to us during the course of arguments. Thus, seen from any angle, it would neither be a misconduct on the part of the appellant nor such a fundamental defect in her qualification that may warrant initiation of proceedings after 20 years of service.
30. In view of the discussion made above, we are of the firm view that the first charge-sheet dated 13.03.2020 (Reference No. GM(M)A-30/ND/01) is liable to be quashed and is, accordingly, quashed. The finding of the learned Single Judge to the contrary, is set aside.
31. In respect of second charge-sheet i.e. Reference No.'B' GM(M)A-30/ND/02, dated 13.03.2020, we are of the view that the same is liable to be quashed for the following reasons:
The charge is in respect of incorrect statement made in an application to seek appointment with another employer not the respondent employer that has served the charge-sheet. Moreover, it appears, the petitioner instead of mentioning the year of undertaking the course from ITI, Kanpur as 1996, had mentioned 1997. This cannot be taken as furnishing false information. There is a fundamental difference between false information and incorrect information. All incorrect information may not be false. For an information to be termed false, a deliberate intention in its making has to be alleged and proved. An error in mentioning the year in which a person has earned the qualification cannot ordinarily be taken as furnishing false information because it is well-known that to seek appointment a person would have to enclose the certificate in proof of that qualification. It is not the charge that the appellant had submitted a false certificate stating that she obtained certificate in the year 1997. Moreover, since the statement was not made to the employer in question but to another prospective employer, it is for that prospective employer to find out whether the incorrect statement was by design or a mere error. Thus, seen from any angle, proceeding further on this charge-sheet would be completely unjustified. Otherwise also, the statement of imputation in the second charge-sheet is more a piece of evidence for the first charge-sheet but, since we have already quashed the first charge-sheet, it is liable to be quashed as proceeding further on it would be nothing but an exercise in futility. We are, therefore, of the considered view that second charge-sheet i.e. Reference No.'B' GM(M)A-30/ND/02, dated 13.03.2020, is also liable to be quashed and is, accordingly, quashed. The finding to the contrary recorded by the learned single judge is set aside. The issues A & B are decidedly accordingly.
ISSUE C:
32. In so far as third, fourth and fifth charge-sheets are concerned, misconduct has been spelt out and therefore an inquiry would have to be held on those charge-sheets. The plea of mala fide has not been properly raised against the disciplinary authority who has drawn the charge-sheets. Otherwise also, whether there is delay in drawing a charge-sheet on the misconduct therein is a question of fact because it would depend as to when the misconduct was discovered. Therefore, the appropriate course for the petitioner is to take all such pleas in the disciplinary proceedings. We are, thus, in agreement, with the view of the learned Single Judge in that regard and we therefore affirm the judgment and order of the learned Single Judge to that extent. Issue C is decided accordingly.
ISSUE D:
33. In respect of the prayer of the petitioner to quash the suspension order, we are of the view that the order of suspension was passed in contemplation of inquiry without referring to the misconduct. As five charge-sheets were drawn, out of which, two have been quashed by us, we are of the view that the disciplinary authority would have to consider whether in the light of the charges mentioned in third, fourth and fifth charge-sheets, the petitioner's continued suspension is required or not. Issue D is decided accordingly.
34. In view of our conclusions on the issues, as discussed above, this appeal is entitled to be partly allowed and is, accordingly, partly allowed. The judgment and order of the learned Single Judge to the extent it rejected the prayer of the petitioner to quash the first two charge-sheets dated 13.03.2020 is set aside. The charge-sheet No. GM(M)A-30/ND/01, dated 13.03.2020; and charge-sheet No. GM(M)A-30/ND/02, dated 13.03.2020, are hereby quashed. All consequential proceedings in pursuance of those charge-sheets are also quashed. The judgment and order of the learned Single Judge in respect of the other three charge-sheets is affirmed. In addition to above, a direction is issued to the disciplinary authority to reconsider whether the continued suspension of the petitioner, on the basis of enquiry on the three surviving charge-sheets, is warranted. A decision in that regard shall be taken within six weeks from the date of this order.
Order Date :- 16.7.2021 Sunil Kr Tiwari