Patna High Court
Union Of India & Ors vs Uma Shanker Verma on 11 March, 2010
Author: S.K. Katriar
Bench: S.K.Katriar, Kishore Kumar Mandal
CIVIL WRIT JURISDICTION CASE No.5696 OF 2009
1. THE UNION OF INDIA THROUGH THE GENERAL MANAGER,
EASTERN CENTRAL RAILWAY, HAJIPUR.
2. THE CHIEF PERSONNEL OFFICER, EASTERN CENTRAL
RAILWAY, HAJIPUR.
3. THE DIVISIONAL RAILWAY MANAGER, DHANBAD DIVISION,
EAST CENTRAL RAILWAY, DHANBAD.
4. THE SENIOR DIVISIONAL OPERATIONS MANAGER, DHANBAD
DIVISION, EAST CENTRAL RAILWAY, DHANBAD.
5. THE DIVISIONAL OPERATIONS MANAGER, DHANBAD
DIVISION, EAST CENTRAL RAILWAY, DHANBAD.
6. THE SENIOR DIVISIONAL PERSONNEL OFFICER, DHANBAD
DIVISION, EAST CENTRAL RAILWAY, DHANBAD.
........ Petitioners
Versus
UMA SHANKER VERMA, SON OF SRI RAM SHANKER VERMA,
RESIDENT OF VILLAGE SAIDPUR, P.O.- KHAGAUL, POLICE
STATION, KHAGAUL, DISTRICT- PATNA.
....... Respondent
For The Petitioner Mr. Bindhyachal Singh, Advocate
For The Respondent :Mr. Gautam Saha, Advocate
PRESENT
THE HON'BLE MR. JUSTICE S.K.KATRIAR
THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL
S.K. Katriar, J. This writ petition is directed against the order dated
1.10.2008(Annexure-15), passed by the Central Administrative Tribunal, Patna Bench, in O.A. No. 784 of 2005 (Uma Shanker Verma Versus The Union of India & Ors), whereby the original application preferred by the respondent herein has been allowed, and the order of removal from service has been set aside with limited payments for the past period.
2. A brief statement of facts essential for the disposal of this writ petition may be indicated. The employees of Indian Railways were on the war path, and had resorted to a nation-wide 2 strike in the year 1974. In view of the determination of the Indian Railways to keep the wheels moving, the loyal employees were called upon to be on duty with promise of benefits to be announced in due course. It appears that a large number of employees did not join the strike, reported for duties, and worked for extra hours. The strike was ultimately dissolved. Indian Railways thereafter issued letter dated 29.5.1974 (Annexure-1), to the General Managers informing them of the scheme incorporating different rewards to the employees. The relevant portion of the order is reproduced hereinbelow::-
" (a) employment of their wards (sons and daughters) in railway jobs;
(b) extension of service of re-employment in suitable cases;
(c)hard duty allowance, as provided for in the Strike Scheme;
(d)grant of advance increments."
2.1) Ram Shanker Verma, the respondent‟s father, was one such loyal employee who did not join the strike and worked during the period of strike. Pleased with the performance of Ram Shanker Verma, the railway administration offered appointment to his son. Uma Shanker Verma, the respondent herein was appointed on 16.12.1974. He submitted his matriculation certificate wherein he disclosed 18.12.1955 as his date of birth issued by the Central Board of Higher Education. A photo copy of the matriculation certificate is marked Annexure-2 to the writ petition. It may be stated that the certificate does not use the expression matriculation, and instead uses the expression High 3 School Examination. In this background, the respondent was appointed as a Guard Group-C. 2.2) The railway authorities received a complaint dated 7.8.1984 (Annexure-3) under the signature of one Yugal Kishore, Advocate, Patna High Court, informing that the respondent had obtained the job by furnishing a false certificate. This was followed by charge-sheet dated 7.12.1987, wherein the petitioner was subjected to a detailed inquiry on the allegation that he had obtained employment on the basis of a false matriculation certificate, and he was really not a matriculate. 2.3) The inquiry report (Annexure-12) was submitted on 26.7.2000, wherein the inquiry officer, inter alia, found that respondent had submitted a false matriculation certificate, he was really not a matriculate, and matriculation was the minimum educational qualification for the post in question. By communication dated 1.8.2000 (Annexure-16), the railway authorities issued show-cause notice to the respondent enclosing thereto a copy of the inquiry report. The respondent had shown cause by his communication dated 14.8.2000 (Annexure-17). This was followed by the order of removal of 11.10.2000 (Annexure-13). Aggrieved by the order, the respondent preferred the aforesaid O.A. no. 784 of 2005, which has been allowed by the impugned order with restrictions on the consequential relief.
3. While assailing the validity of the order of the Tribunal, learned counsel for the petitioners submits that the 4 alleged defect in the respondent‟s candidature was not inquired into, and detected, at the initial stage of the selection process, has weighed against the petitioners. He also submits that the learned Tribunal has erred in holding that :
"... there were no factual situation available to conclusively point out that the applicant was guilty of any falsehood or dubious acts which spoiled his candidature..."
He further submits that a full-fledged inquiry was conducted, in which the prescribed procedure was followed, and the principles of natural justice were observed. He also submits that proportionate punishment has been inflicted on the respondent
4. Learned counsel for the respondent has supported the order of the Tribunal. He submits that the proper procedure was not followed. The railway administration did not examine any witness. The learned Inquiry Officer relied on documentary evidence which were not proved by any railway witness and, therefore, did not form part of the records. In his submission, therefore, the entire disciplinary proceeding is in violation of the principles of natural justice. He relies on the judgment of the Constitution Bench of the Supreme Court reported in A.I.R. 1958 S.C. 300 ( Khem Chand versus Union of India ), (para 19(b)). He also relies on Rules 9 and 10 of Railway Servants (Disciplinary and Appeal) Rules, 1968. He also relies on the following portion of the inquiry report :
"Findings:- The regular non-appearance of prosecution witnesses, despite the best efforts taken by all the enquiry officers including the undersigned, is a fact. Yet, sufficient documentary 5 evidences are left with to substantiate the article of charges. However, it cannot be directly commented upon against the charged official unless the veracity of the documents have not been proved before the enquiry officer to the satisfaction of defence counsel."
5. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears that the present departmental proceeding was initiated, and on the self-same facts, a prosecution has also been initiated by the C.B.I. We have not been informed at the Bar as to the present stage of the prosecution. We are indeed not concerned with same in the present proceeding. It is evident from the materials placed before us that the respondent did not allow the inquiry proceedings to be concluded expeditiously. It took 13 years for the railway administration, and 10 Inquiry Officers to conclude the proceeding. We also cannot fail to take notice of the fact that not a single witness on behalf of the railways appeared to depose on behalf of the administration. We can quite see that all this was the handy work of the respondent. The respondent had taken the matter more than once to the Central Administrative Tribunal, and its orders to conclude the departmental proceeding expeditiously could not be carried out by the railways in spite of best efforts. So much for the resourcefulness of the respondent. The entire disciplinary proceeding has, therefore, to be viewed in this background of facts.
6. Feeling exasperated and helpless by the 6 resourcefulness of the respondent, the learned Inquiry Officer ultimately formulated a questionnaire which was forwarded to the respondent to be answered by him. He did return the same after answering the questions in his own way. In such a situation, it was not possible for the administration to have the documents it had placed on record formally proved by anyone of its witness. We shall have the occasion to deal with the validity of, or justifiability of placing reliance, on such documents by the learned Inquiry Officer at the appropriate stage.
7. It is evident on a perusal of the materials on record as well as the original records of the departmental proceeding placed before us by learned counsel for the petitioners that the respondent had, in a masterly way, forged the matriculation certificate. It did not, on the face of it, create any suspicion about its genuineness. It would, therefore, be unreasonable to expect from the authorities to have detected fraud during the course of the selection process. Indeed it would have been gone unnoticed forever but for the aforesaid complaint dated 7.8.1984 (Annexure-
3), which led to the inquiry against the respondent. After the administration had satisfied itself that prima facie fraud had been practised on the administration, it issued charge-sheet dated 7.12.1987. The respondent had submitted the filled up questionnaire on 17.7.2000, before the learned Inquiry Officer. The inquiry report was submitted on 26.7.2000 wherein he has, inter alia, found as follows:
"(f) Having been unsuccessful from Bihar 7 School Examination Board, Patna in 1974, Sri Verma managed a Matriculation Certificate of 2nd Division in 1974 from Central Board of Higher Education and got his appointment as Guard Gr. „C‟ in 1974 on production of that certificate.
(j) Sri U.S. Verma managed to appear in Matriculation Examn. From two separate Organisations, one from Bihar School Examination Board, Patna and another from Central School of Higher Education, Delhi in same year, 1974. He failed to give satisfactory reply vide ans. Of Q. No. 5 (see page 247), as to how he managed the same?
(k) The Centre for Central Board of Higher Education Examn. In 1974 was RAVINDRA MADHYAMIK VIDYALAY, KRISHNA NAGAR PATNA. Replied as true vide Ans. Of Q. No. 9 (page
247) but Sri Verma has got no documentary proof regarding its existence vide Ans. Of Q. No. 10 (page
246). However, the statement of imputation (vide page no. 4) states at the 3rd para that there was no existence of Rabindra Madhyamik Vidyalaya at Krishna Nagar, Patna. Hence question of appearing for Central School of higher education Matriculation Examn. does not arise and subsequently the existence was confirmed by Sri Chittaranjan Tanti, the Dy. Director of Madhyamik Sikchha Board is a matter of confusion.
(m) It is most confusing that when there were a total three numbers of Central Board of higher education at New Delhi in operation and out of which the Central Board of Secondary Education, 17-B, Indraprastha Estate, New Delhi has been the only recognized body (vide document no. 13) as was declared by department of Education by Govt. of India, then why the appointing authority had mistaken with the very certificate produced on behalf of the charged official."
It is thus evident that the Inquiry Officer found that the respondent had appeared in two matriculation examinations conducted by two different bodies. He had appeared at the examination conducted by the Bihar School Examination Board but had failed. He was never student of Rabindra Madhyamik Vidyalaya at Krishna Nagar, Patna, and had never appeared at the 8 examination conducted by the Central Board of Higher Education, which in any case was an unrecognized body. He has in substance concluded that the matriculation certificate allegedly issued by the Central Board of Higher Education, and produced by the respondent, was a false and fabricated document.
8. It is evident from the chronology of events indicated hereinabove that charge-sheet was served on the respondent, and adequate opportunity was afforded to him to appear in the inquiry proceedings and defend his position. He did not produce any document or did not examine any witness of his own. Copy of the inquiry report was supplied to him, and his comments were obtained. We are thus convinced that the prescribed procedure was followed, and the principles of natural justice were observed.
9. We must examine the contention advanced on behalf of the respondent that the railway administration placed before the learned Inquiry Officer a large number of documents to prove the charges, but were not proved by any witness of the administration. Learned counsel for the respondent, therefore, submits that the learned Inquiry Officer has placed reliance on inadmissible documents. The contention on the face of it appears to be ingenious, but has to be rejected, if the matter is seen in the perspective. On a perusal of the materials placed before us, we are quite convinced that the respondent had won over the official witnesses, none of whom appeared before the learned Inquiry Officer to prove the documents. In such a situation, the 9 administration felt helpless. Furthermore, the documents came from proper custody, and were placed on record by the departmental representative. Furthermore, law is well-settled that the principles of Evidence Act do not apply to a departmental proceeding of the present nature with all its rigours.. The technicalities have to be avoided, it has to be ensured that the prescribed procedure was followed, the principles of natural justice were observed, charge-sheet was served on the delinquent employee, and he was offered adequate opportunity to defend his position. As stated hereinabove, we have no manner of doubt that there was no defect on these counts. In such a background, we are driven to the irresistible conclusion that the learned Inquiry Officer did not err in relying on the documents which have been placed before it which had come from proper custody. The contention advanced by the respondent is accordingly rejected.
10. Law is well-settled that fraud unravels and nullifies everything. The Court of Appeal in England observed in the case of Lazarus Estates Ltd versus Beasley reported in 1956(1) All England Reporter 341. The relevant portion at page 345 of the report is reproduced hereinbelow:
"If this argument is correct, the landlords would profit greatly from their fraud. The increase in rent would pay the fine many times over. I cannot accede to this argument for a moment. No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is 10 distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever; see, as to deeds, Collins v. Blantern (2) (1767) (2 Wils. K.B. 342), as to judgments, Duchess of Kingston‟s Case (3) (1776) (1 Leach 146), and, as to contracts, Master v. Miller (4) (1791) (4 Term Rep. 320). So here I am of opinion that, if this declaration is proved to have been false and fraudulent, it is a nullity and void and the landlords cannot recover any increase of rent by virtue of it."
"
.Lord Parker L.J. observed in the same judgment that fraud vitiates all transactions known to the law of however high a degree of solemnity.
The judgment in Lazarus Estates Ltd. has been quoted with approval by our own Supreme Court in the following judgments:
(i) United India Insurance Company Ltd. versus Rajendra Singh, reported in (2000) 3 SCC 581 (paragraph 3)
(ii) Ram Preeti Yadav versus U.P. Board of High School and Intermediate Education, reported in (2003) 8 SCC 311 (paragraph 14).
(iii) Vijay Shekhar versus Union of India, reported in (2004) 4 SCC 666 (paragraph 9)
(iv) Commissioner of Customs Kandla versus Essar Oil Ltd, reported in (2004) 11 SCC 364 (paragraph 37) .
(v) State of A.P. versus T. Suryachandra Rao, reported in (2005) 6 SCC 149 (paragraph 16).
(vi) Bhaurao Dagdu Paralkar versus State of Maharashtra, reported in (2005) 7 SCC 605 (paragraph 16).
11
(vii) Bank of India versus Avinath D. Mandivikar, reported in (2005) 7 SCC 690 (paragraph 11 at page 699).
(viii) Lilly Kutty versus Scrutiny Committee, SC & ST, reported in (2005) 8 SCC 293 (paragraph 27).
(ix) Hamza Haji versus State of Kerala, reported in (2006) 7 SCC 416 (paragraph 19)
(x) A.V. Papayya Sastry versus Government of A.P., reported in (2007) 4 SCC 221 (paragraphs 23 and 31).
(xi) Behari Kunj Sahkari Avas Samiti versus State of U.P., reported in (2008) 12 SCC 306 (paragraph 16).
(xii) Ram Par Shotam Mittal versus Hillcrest Realty Sdn.
Bhd., reported in (2009) 8 SCC 709 (paragraph 48).
(xiii) Commissioner of Customs (Preventive) versus A.A. Float Textiles (I) (P) Ltd., reported in (2009) 11 SCC 18 (paragraph 12 at page 26).
(xiv) State of Orissa versus Harapriya Bisoi, reported in (2009) 12 SCC 379 (paragraph 40 at page 396)
11. Law is equally well-settled that this Court never exercises its discretionary, extraordinary, prerogative writ jurisdiction in favour of persons who have engaged themselves in acts of fraud, have no respect for the rule of law and the established procedure. We particularly feel concerned about the manner in which the departmental proceeding dragged its feet which at the point of time must have appeared to the authorities to be interminable. As stated hereinabove, it took 13 years and 12 10 Inquiry Officers to conclude the departmental proceedings, which speaks eloquently against the respondent. Any streak of sympathy for such a person will only promote indiscipline. The respondent by such machination was able to continue in service for 13 extra years since the commencement of departmental proceeding. In such a situation, we are convinced that the learned disciplinary authority had inflicted a punishment proportionate to the gravity of the proven charges. The learned disciplinary authority would have been failing in its duty if it had inflicted a punishment short of removal from service.
10. In the result, we disagree with the order of the Tribunal and is accordingly set aside. The order removing the respondent from service is hereby restored.
(S.K. Katriar, J.) Kishore K. Mandal, J. I agree.
Patna High Court ( Kishore K. Mandal, J. ) The 11th March, 2010 NAFR/pkj