Jharkhand High Court
Nawal Kishore Tiwari vs Union Of India & Ors. on 17 April, 2009
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P (S) No. 2036 of 2005
Nawal Kishore Tiwari .... Petitioner
Versus
Union of India and others ... Respondents
Coram : HON'BLE MR. JUSTICE D.G.R. PATNAIK.
For the appellant (s) : Mr. Ashutosh Anand
For the respondents: Mr. Faiz ur Rahman, CGC
CAV on 9.4.2009 pronounced on 17 /04/2009
17/4/2009. Challenge in this writ petition is to the order dated 23.4.2004 (Annexure-14) passed by respondent no. 3 whereby the petitioner was removed from service. Challenge is also to the order dated 9.2.2005 ( annexure 16) passed by the respondent whereby the appeal filed by the petitioner against the impugned order dated 23.4.2004, was dismissed. Besides praying for quashing the impugned orders, the petitioner has also prayed for issuance of a writ of mandamus commanding upon the respondents to reinstate the petitioner with full consequential benefits and also to promote him on higher post w.e.f. from due date with all consequential benefits.
2. Facts of the case of the petitioner lies in a narrow compass. The petitioner was appointed in the service of CISF on 27.6.1982. At the time of recruitment, he had produced relevant documents including the original certificate of the Bihar School Examination Board (BSEB for short) along with mark sheet issued by the Board in confirmation of his date of birth which, according to him, is 7.1.1959. He had also produced a certificate issued by the Middle School, Aurangabad, Bihar in confirmation of his aforesaid date of birth .
2
Upon being inducted in service, he continued to discharge his duties for more than 18 years and during this period, had also earned promotion to higher posts.
It was after more than 18 years that the respondent authorities disputed the correctness of his date of birth on the ground that as per the Board's Matriculation certificate declaring him to have passed the Matriculation examination in the year 1971, it was doubtful that he could not have passed the examination at the age of 12 years and 3 months. Upon entertaining such doubt, his promotion was withheld. The certificate produced by the petitioner was verified by the Vigilance Officer of the BSEB, who reported that the petitioner's date of birth, as recorded in the Register of the Board, was 7.1.1954 upon which in December, 2000, after putting him under suspension, the respondent authorities served him with a charge sheet on 19.3.2001 on the allegation that he had fraudulently and dishonestly obtained appointment by producing a fake certificate.
In course of departmental proceeding, the Enquiry Officer had also felt the need to verify the authenticity of the documents produced by the petitioner and to ascertain the correct date of birth as entered both in the records of the High School and in the records of the BSEB, Patna, directed the concerned authorities of the school and the Board, to make available the relevant documents/registers for inspection and also to depute a competent official for recording their statement. The only response received from the Board to the several letters issued by the Enquiry Officer, was the letter dated 19.9.2003 / 15.11.2003 stating the date of birth of the petitioner as per records, was 7.1.1954, although in absence of the name of Centre and Roll Number, the aforesaid entry could not be confirmed easily. The contention of the petitioner is that such 3 dubious reply of the Board was misleading in view of the fact that the mark sheet submitted by the petitioner does contain reference to the Centre and the Roll Number allotted to him.
At the conclusion of the enquiry, the Enquiry Officer had recorded his finding that neither of the two charges were proved.
The disciplinary authority upon receipt of the enquiry report did not agree with the findings and had sought to differ and issued a second show cause notice which was served upon the petitioner asking him to show cause as to why the punishment of removal from service should not be imposed against him.
The reply submitted by the petitioner was not accepted and ultimately by the impugned order dated 23.4.2004, the disciplinary authority dismissed the petitioner from service.
The petitioner preferred an appeal before the appellate authority, namely DIG, Eastern Zone CISF, but the appellate authority by his impugned order dated 9.2.2005 dismissed the appeal.
3. Counter affidavit has been file on behalf of the respondents.
4. Heard counsel for the petitioner and counsel for the respondents.
5. Sri Ashutosh Anand, learned counsel for the petitioner has assailed the impugned order of dismissal on the ground that the same is arbitrary and not in consonance with the findings recorded by the Enquiry Officer. Learned counsel would argue that instead of considering the discussions of the evidences adduced in the enquiry and the reasons assigned by the Enquiry Officer in arriving at his findings, the disciplinary authority has arrived at his own conclusion of guilt against the petitioner 4 on mere conjectures and surmises and only on the basis of the purported ambiguous letter received from the BSEB. Learned counsel argues that neither the author of the said letter was examined, nor was the petitioner given opportunity to cross-examine the author of the letter or to verify the relevant documents and registers maintained by the Board relating to entries of date of birth of the petitioner. Learned counsel argues further that the disciplinary authority appears to have acted on the basis of presumption that the petitioner could not have passed matriculation examination at the age of 12 years and 3 months as per date of birth stated by him. In doing so, the disciplinary authority has failed to consider that the petitioner had passed matriculation in 1971 and at that time there was no rule prescribing minimum age for appearing at the school final examination.
Learned counsel adds further that even otherwise, the terms of charge namely, that the petitioner had obtained his appointment by producing a face certificate, has not been proved at all. This would be evident even from the Enquiry Officer's report that the Bihar School Examination Board has not denied to have issued the certificate to the petitioner which he had produced before the respondent authorities at the time of his recruitment. As such, it cannot be said that the petitioner had produced any fake certificate. Learned counsel argues further that at the time of the petitioner's recruitment in the year 1982, the concerned authorities of the respondent had occasion to check and verify the documents produced by him and it was only after being satisfied about the genuineness of the documents that they had recruited the petitioner in service and had allowed him to remain in service for 18 years and as such, 5 it was not within the competence of the respondents to dispute the genuineness of the certificate.
Assailing the impugned order of the appellate authority, learned counsel submits that the appellate authority has not also dealt with the evidence adduced at the departmental proceeding, nor has he met the reasonings assigned by the Enquiry Officer, and has not applied his mind to the facts of the case in proper perspective .
6. Per contra, the stand taken by the respondents is that at the time of petitioner's recruitment, there was no occasion to raise suspicion regarding the genuineness of the school certificate which he had produced since the petitioner had also declared his date of birth as 7.1.1959 in the attestation form as well as in the questionnaire form ( Annexure A and A/1) . It was at the time when the petitioner's case for promotion to the post of ASI/Clerk Typist, was taken up by the constituted promotion committee, that the certificate and the documents produced by him at the time of his appointment was looked into and it was then detected that according to date of birth stated in the Higher Secondary Examination certificate, his age was unbelievably 12 years and 3 months only. Upon such doubt, the respondent authorities had felt the need to verify the genuineness of the school certificate produced by the petitioner and also his own declaration regarding his date of birth. The matter was referred to the then Chief Vigilance officer, BSEB, Patna to verify the genuineness of the certificate. In reply, the Chief Vigilance officer, BSEB by letter dated 31.10.2000 intimated that the date of birth of the petitioner as per the entry in the Board's record was 7.1.1954.
On such preliminary finding, the petitioner was served with a charge sheet under Rule 34 of the CISF Rules, 1969. The petitioner 6 was given an opportunity to submit his show cause reply to the authorities and not being satisfied with the show cause replies, a departmental proceeding was initiated against him. After concluding the enquiry, the Enquiry Officer submitted his finding that the charges were not proved against the petitioner. However, the disciplinary authority did not agree with the findings of the Enquiry Officer on the ground that the report of the Vigilance Officer, BSEB had categorically declared that the year of birth of the petitioner according to the entries in the Board's record was 1954 and not 1959 and further more, even according to the middle school certificate produced by the petitioner, he was admitted to class IV in the school in the year 1962 which suggests unbelievably that even at the age of three years, the petitioner was admitted to class IV in the Middle School.
7. The main issues raised by the petitioner are that the dispute regarding the genuineness of the school certificate produced by the petitioner could not have been raised after 18 years of interrupted service of the petitioner and secondly, the order of dismissal of the petitioner on the basis of unauthenticated purported letter received from the vigilance officer of the BSEB without affording an opportunity of hearing to the petitioner to cross examine the author of such letter, is violative of the principles of natural justice.
Sri Ashutosh Anand, learned counsel for the petitioner would explain that there was no scope for the disciplinary authority to differ from the findings recorded by the Enquiry Officer. Such finding was based upon evidence adduced at the enquiry and in absence of any perversity in the findings of the Enquiry Officer, the same ought to have been accepted by the disciplinary authority.
7
8. Before proceeding to appreciate the grounds it is relevant to take note of the specific charges framed against the petitioner on the basis of which the departmental proceeding was held against the petitioner. The articles of charges are as follows :
(i) An act of gross misconduct, indiscipline breach of trust and unbecoming of a member of the Force on the part of No. 8243137/823190441 ASI/Clk, N.K. Tiwari((Nawal Kishore Tiwari) of CISF Unit FCI Sindri in that he dishonestly and fraudulently gain his appointment in CISF as Security Guard thereafter ranked as Constable on 27.06.82 by producing fake certificate (documents) in support of his date of birth clandestinely, hoodwinking the departmental authorities about the authenticity of the said documents/certificate related to his age (date of birth) at the time of recruitment for the post."
(ii) An act of gross misconduct, indiscipline breach of trust and unbecoming of a member of the Force on the part of No. 8243137/823190441 ASI/Clk, N.K. Tiwari((Nawal Kishore Tiwari) of CISF Unit, FCI Sindri in that, he dishonestly and fraudulently gain his appointment as ASI/Clk(Typist) in CISF on 14.09.89 availing the benefits/relaxations as departmental candidate by producing fake certificate/ documents in support of his date of birth clandestinely, hoodwinking the departmental authorities about the authenticity of the said documents related to his age (date of birth) during his recruitment for the post."
9. The essence of both the articles of charges is that the petitioner had produced fake certificate (document) and had hoodwinked the departmental authority about the authenticity of the document related to his age (date of birth) and had gained his initial appointment to the post of constable and later, to the post of ASI/Clerk/Typist fraudulently. The two apparent features of both the charges are that he had produced a fake certificate/document. The certificate referred to is the Matriculation certificate and the marksheet together with the petitioner's own declaration made in the attestation form as well as in the questionnaire form . In the Matriculation certificate the date of birth has been recorded as 8 7.1.1959 not only in figures but also in words. The mark sheet annexed to the certificate mentions the same date of birth in words. On the face of it, neither the Matriculation certificate, nor the mark sheet contains any overwriting or correction or manipulations. These documents could be declared fake or false only by a specific declaration by the BSEB that it was not issued by them or at least by verification from the relevant registers maintained by the Board in which entries of date of birth of the certificates appearing at the Board Examinations, are made.
10. From the enquiry report, it appears that the Enquiry Officer being confronted with the certificate submitted by the petitioner on the one hand and the disputing letter of Vigilance Officer of the BSEB on the other hand, had felt the need to obtain authentic information as to whether the certificate produced by the petitioner and claim that it was issued by the Board, was genuine and had also felt the need to inspect the register maintained by the Board wherein the date of birth of the petitioner was recorded. Apparently, the enquiry officer could not place implicit reliance on the solitary letter purported to have been received from the Vigilance Officer of the Board. Several attempts were made by the Enquiry Officer to call for and examine the relevant records from the Board and also to obtain proof of genuineness of the letter itself which was purported to have been received from the Vigilance Officer of the Board. His several efforts having failed, the Enquiry Officer had recorded his finding that no proof has been adduced to confirm that the matriculation certificate produced by the petitioner and the mark sheet, were not issued by the Board or that the same was not genuine. Under such circumstances, the Enquiry Officer had recorded his finding that neither of the charges against the petitioner were proved. The disciplinary authority had chosen 9 to differ from the findings of the Enquiry Officer by placing reliance on the purported letter of the Vigilance Officer of the Board. While doing so, the Vigilance Officer has apparently failed to consider that reliance upon the purported letter of the vigilance officer of the Board was not placed by the enquiry officer due to the fact that the letter was not legally introduced in evidence and even otherwise, neither the author of the letter, nor any competent authority had appeared to confirm the authenticity of the letter. The disciplinary authority had also failed to consider that the petitioner could not possibly be given any opportunity to challenge the authenticity of the letter or to inspect the relevant registers maintained by Board in which his date of birth was recorded. In absence of any such opportunity being given to the petitioner to rebut the authenticity of the letter, no reliance could have been placed upon the same to dispute the entries recorded in the Matriculation certificate and in the mark sheet. Further more, the disciplinary authority has also failed to consider that no confirmed declaration was received from the Board to suggest that the certificate produced by the petitioner was not issued by the Board.
11. The learned counsel for the respondent would want to offer support to the impugned orders of the disciplinary authority and of the appellate authority by referring to the attestation form and the questionnaire form ( annexure A and A/1) submitted by the petitioner in his own handwriting and would argue that in column (vii) of the attestation form, relating to the age at Matriculation, the petitioner had mentioned his age as about 16 years. This, according to the learned counsel, was a calculated wrong and misleading statement since according to the petitioner's school certificate, his age at Matriculation was 12 years and 3 months, and not 16 years. This argument of the 10 learned counsel is of no consequence firstly because the attestation form or the questionnaire form was not the subject of enquiry since the dispute was raised in respect of the original matriculation certificate and mark sheet produced by the petitioner. Even otherwise, in the attestation form, the petitioner has merely given a rough estimate of his age at the time of matriculation examination as about 16 years. But at the same time, he has also referred to his date of birth as 7.1.1959 which is in consonance of the date of birth recorded in the Matriculation certificate.
12. It appears that the appellate authority has also failed to consider the above aspects and has persuaded itself to place reliance on the letter purported to have been received from the Vigilance Officer of the BSEB without enabling any opportunity to the petitioner to test the authenticity of the letter. Even if the rules of evidence do not strictly apply to departmental proceedings, but the principles of equity and natural justice cannot be ignored in conducting the enquiry. The decision of the disciplinary authority having not been taken on the basis of the evidence adduced at the departmental enquiry and without discussing the reasonings assigned by the Enquiry Officer on the basis of which he arrived at the conclusion of the charge not being proved, the impugned orders of punishment imposed by placing reliance on an unauthenticated document, without offering opportunity to the petitioner to rebut the same, is apparently against the principles of equity and natural justice and cannot be sustained. For the same reasons, the impugned order of the appellate authority also cannot be sustained.
For the reasons stated above, I find merit in this application. Accordingly, this application is allowed. The impugned order ( annexure 14) dated 23.4.2004 passed by respondent no. 3 and order dated 11 9.2.2005 (Annexure 16) passed by the respondent no.14 are quashed. The respondent authorities are directed to reinstate the petitioner in service within three months from the date of production/receipt of a copy of this order and shall also consider his promotion to higher post with effect from the due date. The petitioner shall be deemed to have remained in continuous service without being adversely affected by the impugned orders of his dismissal.
( D.G.R. Patnaik, J.) Ambastha/- A.F.R.