Central Administrative Tribunal - Lucknow
Alok Mohan vs Union Of India on 2 March, 2023
CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH, LUCKNOW
Original Application No. 530 OF 2018
Order reserved on :08.02.2023
Order pronounced on :02.03.2023
CORAM
HON'BLE MR. JUSTICE ANIL KUMAR OJHA, MEMBER (J)
HON'BLE MR. DEVENDRA CHAUDHRY, MEMBER (A).
Alok Mohan, aged about 56 years, son of Shri Shiv Bhagwan,
resident of House No.1649, Shivpuri, Lakimpur, District
Lakhimpur Kheri.
...Applicant
By Advocate: Shri Vishal Verma
Versus
1. Union of India, through the Secretary, Ministry of
Agriculture, Government of India, New Delhi.
2. National Co-operative Development Corporation, 4- Siri
Industrial, Area, Hous Khas, New Delhi, through its
Chairman.
3. Managing Director, National Co-operative Development
Corporation 4-Siri Industrial Area, Hous Khas, New Delhi.
4. Regional Director, National Co-operative Development
Corporation, Sahkarita Bhawan, 14-Vidhan Sabha Marg,
Lucknow.
....Respondents
By Advocate: Smt. Prayagmati Gupta, Ms. Renu Mishra.
1. Whether reporter of journals and of local papers may
be allowed to see the judgment: Yes
2. To be referred to the reporter or not: Yes
3. Whether to be circulated to other benches: Yes
Page 1 of 43
CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors.
ORDER
Per Hon'ble Shri Devendra Chaudhry - Member (A) The present OA has been preferred against the order dated 29.10.2018 of National Co-operative Development Corporation [NCDC in short hereinafter] passed by Respondent No.-3 whereby, it has been held that the applicant has obtained appointment to the post of Programme Officer as a Scheduled Caste candidate despite his not being a person of the Scheduled Caste category ['SC' in short hereinafter].
2. Brief facts of the case are that the National Co- operative Development Corporation is established under the National Cooperative Development Corporation Act 1962 for promotion and development of agriculture and other commodities. It is a body corporate of the Central Government. Section 23 of the NCDC Act empowers it to make regulations concerning appointment per which, the appointing authority for the post of Programme Officer is Managing Director of NCDC. The applicant was appointed to the post of Programme Officer through a written examination followed by interview and posted at NCDC New Delhi vide order dated 05.08.1985 (Annexure A-2). Subsequently, the applicant was transferred to the office of Regional Director, NCDC, Lucknow. As specified in the offer of appointment Page 2 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. the applicant was required to submit Verification forms including furnishing the Caste certificate of being SC which the applicant did vide Annexure-3 which is a caste certificate by the Tehsildar, Lakhimpur Kheri, dated 24/02/1981 declaring him as belonging to Kori caste which is a SC. But the respondents have, however, not accepted the genuine caste certificate, and have unjustifiably dismissed him from service by an ex parte inquiry on grounds of submitting a false caste certificate and obtaining employment on false caste certificate basis.
2.1 It is the contention of the applicant thatthe confusion regarding his caste has arisen because he was brought up since childhood by one Shri Shiv Bhagwan Gupta ['Gupta' in short hereinafter] who does not belong to SC category but is of Gupta Bania caste - which is leading to a misleading conclusion that he is also of Gupta caste. That, the factum of his bringing up was in the family of Gupta occurred because his mother died in early childhood and his father remained continuously sick, hence, his maternal grandmother gave the child - the applicant - to Shri Shiv Bhagwan Gupta - her neighbor - for bringing him up as part of his family. That this fact is supported by the Will dated 14/09/1973 [Annexure-4] executed by the maternal Page 3 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. grandmother Smt Sukh Rani which vests all her property in the name of Shri Shiv Bhagwan Gupta as a quid pro quo for bringing up the applicant as part of his family. The Will is genuine as it has been proven so in a Civil Court and moreso, that, after the death of his maternal grandmother in 1975, the name of Shri Shiv Bhagwan Gupta was entered in the revenue records on the very basis of the Will. 2.2 That therefore, just because Shri Shiv Bhagwan Gupta brought him up as part of his family, that did not make him also of Gupta caste. Hence the respondents' assertion that he belongs to Gupta/Bania caste is not justifiable. That, because he had been brought up since childhood in the family of Shri Shiv Bhagwan Gupta, therefore, initially when the Verification forms were required to be filled after his appointment, he had filled in the form, the name of Shri Shiv Bhagwan Gupta as his father and Smt Premwati [wife of Shri Shiv Bhagwan Gupta] as his mother and their sons and daughters as brothers and sisters and also that he was of non-SC category. However, he later realized his mistake and corrected the forms. But the respondents needlessly conducted an Enquiry into the matter and on the basis of the report of the District Magistrate Lakhimpur Kheri dated 28/08/1990 [Annexure-5] held him to be of non-SC category Page 4 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. as the DM's report had stated that per the enquiry, he was not of SC category. That this is unjustifiable because the caste certificate issued to him by the Tahsildar Lakhimpur Kheri vide date 24/02/1981[Annexure-3] declares him to as belonging to SC category which factum is further supported by the Will of his maternal grandmother. Hence, the report of the DM holding him as of non-SC category is not worthy of being upheld. Moreso because even in the DM's report it is stated that in the Education certificates his caste is specified as 'Kori' caste. The applicant asserts that the report of the DM is not substantiated by any documentary support and hence is not worth relying upon. This is further supported by the fact that separately and independent of the inquiry by the respondents through the DM, an FIR was also lodged on 11.10.1990 on the charge of falsification of caste under various sections of the Indian Penal Code but he has been honorably discharged in the criminal case by the Chief Judicial Magistrate ['CJM' in short hereinafter] vide order dated 10/10/2005 [Annexure-8].
2.3 That on the basis of the above undeniable facts, the respondents have acted unjustifiably in issuing the Memorandum dated 14.09.1990 calling upon the applicant to show-cause as to why action for dismissal from service Page 5 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. may not be taken due to submission of false caste certificate. That, the applicant, nevertheless submitted his reply on 21.09.1990 indicating that his claim of belonging to SC category is (i) on the basis of the caste certificate issued by the Tehsildar and (ii) supported by the Will of his maternal grandmother as well as the order of the Civil Court upholding the said Will. Moreso, that even in the criminal case qua the false caste certificate submission has been dismissed and he has been honourably discharged. The applicant contends that despite all the proof, he was placed under suspension and a Departmental inquiry ordered. The Enquiry officer conducted the disciplinary proceedings inquiry in an ex-parte and partial manner without giving adequate opportunity of hearing and representation to the applicant and dismissed the applicant vide order dated 26/02/1993 unjustifiably on grounds of him being guilty of misconduct of falsification of caste certificate. Hence, aggrieved by the order of dismissal of 26.02.1993, he preferred a Writ Petition in the Hon'ble High Court through WP No. 6595(SB/1990 which was allowed by the Hon'ble High Court by judgment dated 03.09.2008(Annexure-A7), whereby, the impugned order of 26.02.1993 was set aside and liberty was granted to the respondents to proceeded afresh from the stage of supply of the service of the inquiry Page 6 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. report. That however, the applicant was not reinstated and the inquiry report was served upon the applicant to which the applicant replied vide 07.11.2008 (Annexure A-10). However, without considering the material facts in the reply, he was dismissed again vide order 06.01.2009 [Annexure A- 11] and so the applicant preferred a Writ Petition No. 554 (S/B) of 2009 before the Hon'ble High Court, wherein, the Hon'ble High Court vide order dated 14.8.2018 quashed the dismissal order with directions to respondent No.-3 to pass a fresh order within 6 weeks [Annexure-13]. That this High Court order also quashed the order of the Tribunal dated 06.8.2015 [Annexure-12] whereby this Tribunal had dismissed an O.A No. 266/2014 preferred by him before the Tribunal against the dismissal order of 06/01/2009. 2.4 That now, following a decision of the Hon'ble High Court of 14/8/2018, the impugned order of 29.08.2018 has been passed. That the said order is not justifiable on the grounds as already stated including in Para 5 of the O.A. Accordingly, the impugned order is unjustified and liable to be set aside.
3. Per contra, the respondents have denied the assertions of the applicant and have submitted that the certificate of caste submitted by the applicant as purportedly issued by the Tehsildar has been found to be fraudulent as per the Page 7 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. report of the District Magistrate, Lakhimpur Kheri dated 28.9.1990, [Annexure CA-1]. That the need to seek the DM's report arose because after the issue of appointment letter, the applicant was required to fill up the Verification forms. That the applicant admittedly filled his caste as non SC and his father as Shri Shiv Bhagwan Gupta and his mother as Premwati who herself was wife of Shri Shiv Bhagwan Gupta. However, later he tried to correct his caste and parentage declaration. That as Shri Shiv Bhagwan Gupta belongs to Gupta/Bania caste, and the applicant was submitting contradictory information in the Verification forms, hence the report of the DM Lakhimpur Kheri was sought due to this confusion in the Verification forms. That the DM Lakhimpur Kheri vide his report dated 28/9/1990 [Annexure CA-1] stated that the applicant did not belong to SC category even though his educational certificates stated that he belonged to SC category but that his parentage was still stated that Shri Shiv Bhagwan Gupta was his father which facts are contradictory by themselves because Shri Shiv Bhagwan Gupta who is of Bania caste cannot be the father of the applicant and at the same time the applicant cannot claim that he belongs to SC category even if per the certificate of caste of Tahsildar submitted by him and the alleged proof of support from the Will of his maternal Page 8 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. grandmother. Therefore, the factum of the applicant as belonging to 'Kori' caste became a matter of wrongful illegal assertion. The offer of appointment, clearly stipulated that if any declaration has been given falsely, then the applicant shall be liable to be discharged from service. Therefore, as the report of the District Magistrate stated that the applicant is not of the SC Caste and the applicant had submitted conflicting Verification forms dated 20/3/1988 and 13/5/1988, therefore, an Enquiry was conducted as part of disciplinary proceedings initiated against the applicant and on the basis of the same, the applicant was discharged from service vide order dated 26/2/1993.
3.1 That, however, in compliance of the order dated 03/09/2008 of the Hon'ble High Court in Writ Petition No. 6595/1993, the Enquiry was conducted again as from the stage of service of the Enquiry report and the applicant being found guilty of submission of false caste certificate was dismissed again vide order dated 06/01/2009. However, once again as the Hon' High Court vide its order dated 14.8.2018, in the WP No. 554/2009 directed passing of fresh reasoned orders, the respondents' have passed the impugned order of 29/10/2018. The respondents assertthat the applicant filled two Verification forms, one dated Page 9 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. 20.03.1988 and another dated 13.05.1988 which were contradictory in so far as his status of his caste and parentage were concerned. The applicant's contention that the erroneous statement of his father's name was a slip of the mind is untenable as it is casting complete doubt of his real parentage which is against the conditions laid down in the appointment letter. That, as per report of the District Magistrate, it is confirmed that the applicant does not belong to the Schedule Caste community and so, he cannot be given the benefit of being recruited as a SC category person. 3.2 That the applicant had not produced any additional evidence other than the stated false certificate of the Tehsildar of 1981 stating that he belongs to the Kori Caste. Even this certificate is not substantiated by any supportive document. That, the stated Will of the stated maternal grandmother of the applicant cannot be ground for declaration of caste because a property Will cannot be the basis of declaration of the Caste. As regards the Educational Certificates, he has also mentioned his father's name as Shri Shiv Baghwan Gupta. Therefore, admittedly, he has also accepted the parentage and it cannot now lie in his mouth to assert that his father is Shri Shiv Bhagwan Gupta and still, he is of the Kori caste just because his grandmother made a Page 10 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. Will of property in the name of Shri Shiv Bhagwan Gupta. Hence also the educational certificate is a matter of doubt and not worthy of being proof of caste of the applicant even if by way of support to the caste certificate stated to be issued by the stated Tahsildar which itself is a stand-alone document without any supportive proof. As regards the disciplinary proceedings, the applicant was given full opportunity on several occasions as per the records of the disciplinary proceedings but he avoided appearance and the enquiry had to therefore, be done in an ex-parte manner as was moreso required per directions of the Hon' High Court dated 03/09/2008 in a WP No. 6995/1990 filed by the applicant himself.
3.3 Therefore, as the impugned order is now legally sound in every way and has covered all the points observed by the Hon'ble High Court in its order of 14.08.2018, therefore, as the applicant is proven as not being of the Scheduled caste category, therefore, his appointment on the basis of SC category cannot be upheld in the eyes of law and so he is liable to be dismissed under the service rules of NCDC. Hence, the OA is devoid of merit and is liable to be dismissed.
4. Heard the learned counsels for the parties at length Page 11 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. and perused all the pleadings and documents filed carefully.
5. The key issues which we need to look into are:
(i) Does the impugned order dated 9/08/2018 cover the points observed by the Hon' High Court Allahabad, Lucknow Bench in its decision of 14/08/2018?
(ii) Is the impugned order holding the applicant as not belonging to the Scheduled Caste 'Kori' caste in accordance with law?
6. As regards the first issue concerning coverage of points observed by the Hon' High Court Allahabad, Lucknow Bench vide its order dated 14/8/2018 ['2018 order' hereinafter], the key portions are extracted below:
"19. In response thereto, the petitioner submitted his reply' on
7.11.2008 to the punishing authority inter alia on the ground that he has been acquitted by the criminal court in respect to the submission of forged caste certificateprepared by him on the basis of which he entered into the service.
20. However, from perusal of punishment order dated 06.01.2009 passed by respondent no. 3 we find that the said authority has not considered the said fact and rather on the point in question, impugned order is a non-speaking one as no reason was given.
21. It is well settled law that an order passed by an authority should be a reasoned one and the objection taken by a person should be dealt with because reasons are like a live wire which connect the mind of the decision making authority and the decision given by him and if this wire/link is broken i.e. to say no reasons are given in the impugned order then it will not be possible to know as what was going in the mind of the decision making authority on the basis of which he has come to the conclusion and passed the impugned order, Page 12 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors.
22. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx', it can be its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the later before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary, requirements of natural justice is spelling out reasons for the order made. The inscrutable face of the sphinx' is ordinarily incongruous with a judicial or quasi- judicial performance.
23. So, the argument in question advanced by learned counsel for the petitioner, that on the point in issue order passed by Tribunal as well as punishing authority are not in accordance with the principles of natural justice as a person against whom the impugned decision is taken should know that under what circumstances such order has been passed is correct because in the present case the impugned orders are non-speaking orders and no reason whatsoever has been assigned while passing the same, as such violative of principles of natural justice, arbitrary in nature, cannot be sustained.
24. Further, while passing order dated 06.01.2009, punishing authority has stated that he finds no justification to accede to the request made by petitioner from exonerating him from the charges levelled against him, hence you are dismissed from service of the Corporation as conveyed earlier by order dated 26.02.1993, relevant portion of the same reads as under:
"In view of the reasons stated above and in the earlier order No. NCDC: 5-40/85-Admn, dated 26.2.1993 and in the light of reply dated 7.11.2008 of the delinquent official, I Rajiv Agarwal, Managing Director, NCDC, the Competent Authority, find no justification to accede to your request for exoneration from the charges levelled against you earlier and hence you stand dismissed from the services of the Corporation as conveyed earlier vide his Corporation's order dated 26.2.1993."
25. So, the order dated 26.02.1993 is in contravention to the order dated 03.09.2008 passed in Writ Petition No. 6595 SB of 1993 because once the earlier order ofpunishment dated 26.02.1993 has been quashed by this Court, then the action on the part of punishing authority to state in the impugned order that you stand dismissed from the services of the Corporation as conveyed earlier vide order dated 26.02 1993 is contrary to the direction issued by this Court.
26. In the result writ petition isallowed and the order dated 06.08.2015 passed by the Tribunal in Claim Petition O.A. No. 332/00266/2014 (Alok Mohan Vs. Union of India and others) as well as order dated 06.01.2009 passed by respondent no 13/ Page 13 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors.
Managing Director National Cooperative Development Corporation, New Delhi are quashed. The matter is remanded back to respondent no.3- Managing Director National Cooperative Development Corporation, New Delhi to pass fresh order within a period of six weeks from there of receipt of certified copy of the order. So farother benefits are concerned, the same shall be subject to the decision taken by the punishing authority/ L respondent no. 3..."
It would also useful to extract the relevant portions of the impugned order in this connection:
Order Dated 29.10.2018:
"17. AND WHEREAS, in compliance with the orders of the Hon'ble High Court, Lucknow Bench, the undersigned has carefully examined the matter and gone through the records and the report submitted by the Enquiry Officer and on perusal thereof, it appears that
(i) Shri Alok Mohan had secured job in the Corporation, which was reserved for SC community, claiming himself to be belonging to Kori (SC) community and it has been duly proved that the charged officer belongs to Bania (Gupta) community and does not belong to Kori (SC) community, as claimed by him and as such the claim of the charged officer is false.
(ii) Shri Alok Mohan, in support of his claim, submitted a copy of the certificate, purportedly issued by Tehsildar, Lakhimpur Kheri, which is a false caste certificate, as the person in whose favour the certificate has been issued does not belong to the Kori community, but instead belongs to Bania (Gupta) community, and this fact has been duly proved from the documentary evidence and the testimony of the witness Shri Babu Lal Gupta, Additional Tehsildar, Lakhimpur Kheri available on records of the Departmental proceedings.
(iii) Shri Alok Mohan did not submit original certificates in support of his caste qualifications even though he was called upon to do so several times. Consequently, reference was made to the District Magistrate, Lakhimpur Kheri, who conducted the verification and informed vide his letter dated 28/08/1990 that Shri Alok Mohan did not belong to the Kori (SC) community and that he belongs to Bania (Gupta) community.
(iv) Shri Alok Mohan was accordingly informed about the communication received from the District Magistrate, Lakhimpur Kheri vide Memo dated 14/09/1990. He was also informed that he had submitted a false certificate in regard to his caste and availed concession meant for persons belonging to SC community and that he has, thereby, violated the terms and conditions of his appointment and that accordingly he was liable to be discharged from the service of the Corporation besides such other action as the Corporation may deem fit.
(v) As Shri Alok Mohan did not submit any explanation, a departmental proceeding was initiated and the Enquiry Officer, appointed for the purpose, enquired into the charges and submitted a report. From the report submitted by the Enquiry Officer, it appears that Shri Alok Mohan did not cooperate. He however, appeared and attended the second hearing held on 19.12.1991 and after inspection of documents asked fortime to file reply, which was allowed. Subsequently Shri Mohan insisted on deferring the enquiry in view of the fact that the Corporation has filed a FIR against him and under these circumstances, the enquiry proceeded ex parte. Shri Mohan even refused to submit any reply. I have considered this aspect and I am of the view that adequate opportunity was provided to the charged officer of presenting his case and he could have produced appropriate evidence to substantiate his claim that he belongs to Page 14 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors.
SC community. The very fact that he did not produce any evidence in support of his claim gives credence to the view that he did not belong to the Kori (SC) community and that he was not entitled to get the appointment in the Corporation on a post, reserved for Scheduled Caste Community. His refusal further signifies that there was no violation of the principles of natural justice in this case.
(vi) That Sri Babu Lal Gupta, Additional Tehsildar has appeared as a witness on behalf of the District Magistrate, Lakhimpur Kheri and during the course of his oral testimony, has confirmed that the letter dated 28/08/1990 was issued from the office of the District Magistrate after holding enquiry through Tehsildar, Lakhimpur Kheri and also certified that the signature on the letter was that of the then District Magistrate, Shri Anil Swarup. The said communication dated 28/08/1990 from the District Magistrate followed by the oral testimony of Shri Babu Lal Gupta proves the charge that Shri Alok Mohan, the charged officer does not belong to the Kori (SC) community and instead belongs to Bania (Gupta) community. It is further proves that the certificate submitted by the charged officer at the time of his appointment was false.
(vii) That in the charge sheet there are four Articles of Charge, but all the charges pertain to the submission of false caste certificate by the charged officer for securing employment in the Corporation. The Report of the District Magistrate, exhibited in the departmental proceedings and the oral testimony of Shri Babu Lal Gupta proves the first two articles of charges beyond any doubt. The third Article of Charge in fact describes the follow-up action taken by the Corporation and the resultant violation of the terms and conditions of his appointment. The fourth charge relates to non- submission of reply by the charged officer even though he was called upon to do so vide letter dated 14/09/1990. The facts as stated in the Articles of Charges have not been disputed by the charged officer and the supporting documentary evidence, included in the List of Documents was made available to the charged officer.
18. AND WHEREAS, in pursuance of the orders of the Hon'ble High Court, Lucknow Bench, a copy of the enquiry report submitted by the Enquiry Officer was made available to the charged officer. The undersigned has gone through the reply dated07.11.2008 of Shri Alok Mohan very carefully and found that the same is baseless on the following grounds:
Submissions of Shri Alok Mohan (in Reasons verbatim)
a)Before the enquiry officer, though as many Shri Alok Mohan had secured job in as four witnesses were examined in order to NCDC based on SC certificate against the prove the charges leveled against the post reserved for SC category. NCDC being a statutory Corporation of Govt. of India, was applicant, which included Shri A.K Bajpal, duty bound to verify the genuineness and Regional Director, NCDC, Lucknow, Shri correctness of the caste certificate SC Gorll, Dy Director, Vinay Kumar produced by Shri Alok Mohan in support of Verma, bocount b Assist, NCDC, Lucknow his claim of being a SC candidate, to & Shr Babulal Gupta, Teshsildar, ensure that the benefit of reservation Lakhimpur Kheri, being the representative enshrined in the Constitution of India goes of the District Magistrate Lakhimpur to rightful claimant, As per the directions Kheri. It is relevant here that though the of Govt. of India, the caste certificate of main charge leveled against the applicant Shri Mohan was sent to DM, Lakhimpur was to the effect that he has submitted a Kheri for verification and DM, Lakhimpur false certificate of caste in support of his Kheri having conducted an inquiry into the belonging to S.C. community, but matter, had, vide letter dated 28.08.1990, witnesses examined before the enquiry informed that Shri Alok Mohan belongs to officer have stated a word about the Banía (Gupta) caste and not to Kori (SC) genuineness of the said caste certificate caste. Based on the report of DM, which was issued by the then Tehsildar Lakhimpur Kheri, departmental Kheri on 24.02.1981 and which was proceedings were initiated against Shri submitted by the applicant at the time of Alok Mohan, seeking the Lakhimpur appointment in the corporation and as such neither any Shri Alok Mohan was afforded ample enquiry has been done with regard to. opportunities during the departmental aforesaid caste certificate by the enquiry inquiry to prove that he belongs to SC officer nor any question about the category, Shri Alok Mohan had not genuineness of the said certificate was produced any evidence, documentary or Page 15 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. asked from any of the witnesses otherwise to refute the report of DM, examined by the enquiry officer. It is Lakhimpur Kheri and/or to prove that he needless to say that none of the belongs to Kori (SC) community. In this witnesses so examined by the enquiry context, it is pertinent to note that the officer as said that the caste certificate charged officer applied for the post in the submitted a false certificate. NCDC, asserting that he belongs to Kori (SC) and as such it is the duty of the charged official to prove that he belongs to a particular community and that if there is any evidence, in support of his claim, it has to be placed by him before the Enquiry Authority. It is well settled that if a person asserts a particular fact to exist, the burden of proof is on him to prove the same.
It is also to be borne in mind that District Magistrate, Lakhimpur Kheri in his report has clearly stated that Shri Alok Mohan belongs to the Banía (Gupta) community and that he does not belong to Kori (SC) community. A copy of the said letter from the District Magistrate has been made available to the charged officer. The charged officer could have produced appropriate evidence in support of his claim that he belongs to SC community and for this adequate opportunity has been provided to him.
The communication dated 28.08.1990 of the District Magistrate has been duly exhibited during the course of departmental enquiry by an official witness and as such the findings of the Enquiry Officer, based upon this primary evidence becomes reliable and trustworthy. In any case the findings of the District Magistrate, which is the competent authority in matters of certification of caste are presumed to be correct and as such has to be relied upon, unless its correctness itself is under challenge.
b) That the issuing authority of the said Submission of Shri Alok Mohan is caste certificate i.e. the then Tehsildar irrelevant the case. DM Lakhimpur Kheri Lakhimpur posted on 24.02.1981 was 28.08.1990 from DM, Lakhimpur Kheri is neither called to appear as witness in to the facts of had conducted an inquiry to order to say his version about the verify the veracity of the caste certificate certificate so issued by him nor the of Shri Alok Mohan. On verification, vide District Magistrate Lakhimpur Kheri has letter dated 28.8.1990, DM, Lakhimpur even taken for his statement with regard Kheri had informed the Corporation that to the caste certificate issued by Tehsildar he belongs to Bania (Gupta) caste and not as well as the enquiry report send by the to Kori (SC) caste. During the inquiry, Shri District Magistrate. Alok Mohan had not produced any documentary evidence to prove that the content of letter dated erroneous.
c) That the three witnesses namely Shri The report of the DM, Lakhimpur Kheri A.K. Bajpai, Shri S.C. Govil and Shri with regard to caste credentials is Vinay Kumar Verma have made their fundamental to the case. The entire case statement merely on i the basis of their rests upon the inquiry of DM, Lakhimpur own impression c drawn about the caste Kheri. The departmental proceedings of the c applicant not, belonging to SC le against the charged officer were initiated Page 16 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors.
community because some visitor L in the based on the letter dated 28.8.1990 office have told them so but M none of received from DM, Lakhimpur Kheri them has mentioned the no name and stating that Shri Alok Mohan belongs to particulars of any such visitors and so the Bania (Gupta) caste and not to Kori (SC) impressions so gathered by all these caste. witnesses appears to be nothing but based on mere hear say, which cannot be relied upon in absence of any Evidence in its support. D)That so far as the statement of Shri B.L. Gupta, Upper Tehsildar had ShriGupta, the additional Tehsildar appeared on behalf of DM, Lakhimpur Lakhimpur and the representative of the Kheri and confirmed in writing that the District Magistrate, his shown inability in letter dated 28.8.1990 was issued from para-I of his statement as to who has the office of DM Lakhimpur Kheri after issued the said caste certificate dated 24- holding enquiry through Tehsildar, 02-1981 under what circumstances Lakhimpur Kheri and also certified that issued to the applicant He has also the signatures on the letter were that of mentioned in his statement that the the then DM Shri Anil Swarup. District Magistrate Lakhimpur got an enquiry conducted by the Lakhimpur into During the inquiry, Shri Alok Mohan had the matter and thereafter, since it was not produced any documentary evidence
relevant that the applicant belongs to "Baniya to contradict the letter dated 28.08.1990 (Gupta)" community and not to "Kori" caste from DM Lakhimpur Kheri stating that Shri as such hesent his letter dated 28-08-1990 to Alok Mohan belongs to Bania (Gupta) the NCDC on the basis of which the caste and not to Kori (SC) caste. necessary action was taken against the applicant. It is worth to mention here that in this circumstances Shri Babu Lal Gupta also had never mentioned in his statement that thecertificate submitted by the applicant was either a false certificate or it was not issued by the Tehsildar Lakhimpur on24.02.1981. More over his statement is based on the letter dated 28.08.1990 sent by the District Magistrate Lakhimpur to the Corporation about the said letter of District Magistrate also not bear any material to the effect that the caste certificate submitted by the applicant was a false one. It is also pertinent to mention that whatever enquiry is said to have been conducted by the District Magistrate Lakhimpur in this matter and on the basis of which he has sent his letter dated 28.08.1990 to the Dy. Director (Admn.) NCDC New Delhi could neither be placed before the enquiry officer nor it has been supplied to the applicant.
e) That as stated above it appears that Shri Alok Mohan had secured job in NCDC not only the District Magistrate Lakhimpur claiming himself as a SC candidate has based his letter dated 28.08.1990 on against the post reserved for SC category. some enquiry conducted by Tehsildar NCDC being a statutory Corporation of Lakhimpur but the enquiry officer Shri Govt. of India, was duty bound to verify B.S. Sharma has also relied upon the the genuineness and correctness of the letter dated 28.08.1990 sent by the caste certificate produced by Shri Alok District Magistrate Lakhimpur for holding Mohan in support of his claim of being SC the applicant guilty of submitting a false candidate, to ensure that the benefit of caste certificate but the report of the reservation goes to claimant. the directions alleged enquiry conducted by the District of rightful As per Govt. of India, the caste Magistrate has never seen the light of the certificate of Shri Mohan was sent to DM, day in as much as neither it was placed Lakhimpur Kheri for verification and DM, before the enquiry officer nor its copy has Lakhimpur Kheri having conducted an been made available to the applicant so inquiry into the matter, had, vide letter far. dated 28.08.1990, informed that Shri Alok Page 17 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors.
Mohan belongs to Bania (Gupta) caste and
not to Kori (SC) caste. Based on the report
of DM, Lakhimpur Kheri, departmental
proceedings were initiated against Shri
Alok Mohan. During the inquiry
proceedings, despite giving ample
opportunities at no stage Shri Alok Mohan
produced any documentary evidence to
defend that he belongs to Kori (SC)
community and not to Bania (Gupta).
F) That in the circumstances finding The allegations of Shri Alok Mohan
recorded by the District Magistrate are preposterous. The District Magistrate
Lakhimpur enquiry officers of the NCDC is the highest authority prescribed by
namely Shri B.S. Sharma are based on no Government of India for issue of a caste
presumptions and conjuncture and thus certificate. During department
are not to be relied upon. proceedings, Shri Alok Mohan had not
produced any documentary evidence to
contradict the finding of DM,
LakhimpurKheri.
G) That it is also submitted that an FIR Contention of the applicant that he has
was also lodged against the applicant for been honourably acquitted is erroneous
the same charges of submitting the false and false. In fact, Shri Alok Mohan was
caste certificate by the applicant with the exonerated in criminal case No.246/2000
corporation at the time of seeking his as all prosecution witnesses turned
appointment and thereafter a criminal hostile. Shri Alok Mohan had not been
trial was proceeded in the matter before honourably acquitted. In the case of Union
the Chief Judicial Magistrate, Kheri but of India Vs. Purushottam, the Hon'ble
the applicant has been honourably Apex Court has observed that:
acquitted in the said criminal case on the
pretext that the allegations of filing false Acquittal from criminal court would not
caste certificate could not be proved by automatically and conclusively impact
the prosecution against the applicant. The departmental proceedings, firstly because
certified true copy of the Judgement and of disparate degrees of proof; secondly,
order dated 10.10.2005 passed by the criminal prosecution is not within control
Chief Judicial Magistrate (C.J.M.) of the department concerned and acquittal
Lakhimpur Kheri, in criminal case could be consequence of shoddy
No.246/2000 is being filed herewith this investigation or slovenly assimilation of
reply as annex No.1 for your kind perusal evidence, lackadaisical if not collusive
conduct of the' trial, etc.; and thirdly
acquittal in criminal prosecution may only
preclude contrary conclusion in
departmental enquiry if former is positive
decision i.e. honorable acquittal in
contradistinction to passive verdict which
may be predicated on technical infirmities
i.e. criminal court must conclude that
accused was innocent and not merely that
he has not been proved to be guilty
beyond reasonable doubt.
19. AND WHEREAS, in view of the reasons recorded hereinabove, I am of the view that the charged officer secured an appointment in this Corporation against a post which was reserved for the Scheduled Caste community and submitted a false caste certificate and therefore, I find myself in agreement with the findings of the Enquiry Officer and accordingly do hold that all the charges fully 'proved' against Shri Alok Mohan. In the context of the facts and circumstances of this case, following observations of the Hon'ble Supreme Court in the case of R. Vishwanatha Pillai vs. State of Kerala (C.A. No.-000089-000089/2004) are quite relevant: Page 18 of 43
CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors.
"This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eyes of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under the Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Caste. In view of the finding recorded by the Scrutiny Committee and upheld upto this Court he has disqualified himself to hold the post. Appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As appellant had obtained the appointment by playing a fraud he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed there under. Where an appointment in a service has been acquired by practising fraud or deceit such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all".
20. NOW THEREFORE, the undersigned, as competent authority, holds that Shri Alok Mohan has obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and thus his appointment in NCDC is void ab initio. It is further ordered that Shri Alok Mohan shall not be entitled to get any pay or allowances beyond what has already been paid to him already.
(Sundeep Kumar Nayak) Managing Director Mr. Alok Mohan, House No.1649, Shiv Puri, Lakhimpur Kheri, (Uttar Pradesh).
------------------------------
6.1 As may be seen above, per paras 19-23, the Hon' High Court has observed adversely on the point of the order of 06/01/2009 not being a reasoned order especially in respect of the said honourable discharge of the applicant from the Court of CJM. On this point, while the applicant still contends that the now fresh order - impugned in the current O.A, is also not a speaking order, we are in agreement with the assertion of the ld respondents counsel that the detailed impugned order of 29/10/2018 passed in compliance of the Page 19 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. order of the Hon' High Court dated 14/8/2018 has covered the point of arriving at conclusions with regards to the stated honourable discharge in the case crime No. 246/2000 concerning the FIR lodged with regards to false caste certificate. This is evident in the conclusions drawn qua para
(g) of the impugned order which relate to the FIR and the order of CJM dated 10/10/2005. The respondents cannot be expected to sit in judgment of the order of the CJM and so reliance on the law laid down by the Hon Apex court in the matter of Union of India vs. Purushottam is proof that the respondents have applied their mind in order to deal with the contention of the applicant. What is noteworthy in this context is that the applicant has not been discharged without any doubts. In fact the applicant has got the benefit of hostile witnesses and so it cannot be held that it is a fully honourable discharge. The emphasis of the judgment on the point that acquittal in criminal prosecution may only preclude contrary conclusion in departmental enquiry if former is positive decision i.e. honorable acquittal in contradistinction to passive verdict which may be predicated on technical infirmities i.e. criminal court must conclude that accused was innocent and not merely that he has not been proved to be guilty beyond reasonable doubt. What we have are technical infirmities led by the hostile witnesses. Page 20 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. Hence it cannot be said to be a positive verdict and so the respondents are legally correct in not being exclusively driven by the said verdict of the CJM's order. Thus this point of the order of the Hon' High Court is covered in the impugned order. While arriving at this conclusion we are conscious that this Tribunal cannot sit on judgment on points relating to compliance of the order of the order of the Hon' High Court - in this case the order of 14/8/2018 - but since the impugned order should be adjudged from the aspects of covering the grounds already taken note of - even if by the Hon' High Court - we are bound to look into the same - to see the reasoned manner in which the impugned order has been passed taking not only into account the contention of the applicant but also the orders of the Hon' High Court. Moreso the Hon' High Court has also quashed the order of this Tribunal dated 06/8/2015 and therefore more reasons that this Tribunal examines the impugned order in totality including that of the directions of the Hon' High Court.
6.2 As regards the direction of the Hon' High Court in para- 24-25 that the respondents had to issue orders afresh because the earlier order 26/2/1993 had been quashed by the Hon' High Court order of 03/9/2008 in the first Writ petition, and so the respondents could not lean upon their Page 21 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. 26/2/1993 order to go ahead and justify their second order of 06/01/2009 and so a fresh order had to be passed without leaning on any of the earlier orders. It is the contention of the applicant that the impugned order does not take care of any of this point of the Hon' High Court's order of 2018. On dispassionate and careful analysis of the new impugned order of 2018, we find that the impugned order has taken care of this point also in full measure. This is evident from the portions of the order wherein a chart of points (a) to (g) are made in the order itself such that each of the points raised by the applicant are dealt with in detail afresh without leaning on any reasoning of any earlier order of the respondents which has been called into question. The new order is with reasoning as warranted and conclusions arrived are independent of the earlier order of 26/2/1993 or for that matter 06/01/2009. Therefore, the observation of the order dated 14/8/2018 of Hon' High Court are taken care on this point also in the latest impugned order now before this Tribunal.
6.3 As regards the covering of point raised in para-26, that R-3 the Managing Director of NCDC shall pass a fresh order within six weeks of receipt of a copy of the order of the Hon' High Court, the impugned order of 29/10/2018 is passed in regards to same. Thus this point is also covered. Page 22 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. 6.4 Thus, we find that insofar as the order of the Hon' High Court is concerned, the requisite points are taken care of in the impugned order of 29/10/2018 and so the contentions of the applicant on this issue are negatived.
7.0 Now we may examine the second issue that whether the impugned order stands scrutiny to being an order worthy of being upheld in the totality of points raised by the applicant regarding his being of 'Kori' caste and so a SC category candidate and so he cannot be dismissed on the respondents assertion that he does not belong to 'Kori' caste. 7.1 We may begin by again assessing though not required so but for the sake of completeness, the point regarding exoneration of the applicant from the criminal charge filed with regards to false caste certificate.
7.2 Clearly the impugned order does try to address the issue of the stated honourable discharge by the CJM in the matter of the FIR in the criminal case concerning the false caste certificate. We are also in consonance with the view held in the impugned order because it is no longer res integra that criminal proceedings and disciplinary proceedings are to be assessed on different tests of their being ultra vires or intra vires. For this reason, we may Page 23 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. extract the relevant portion of the order by the Chief Judicial Magistrate dated 10/10/2005 which reads as under:
".....अिभयोजन प अिभयु के िव धारा 467/468/420 मा० दं ० सं० के आरोप मािणत नहीं कर सका।
तदानुसार अिभयु दोषमु िकया जाने यो है ..."
Clearly the order states that the prosecution could not establish the offence under Sections 467/468/420 of the IPC. If we further examine as to how this conclusion was arrived at we find that this was on account of the witnesses of the prosecution becoming hostile. Relevant portions of the judgment are extracted herein below:
Page 71-b to 71-C of CJM judgment:
".........लखीमपुर को जाँ च हे तु ा ई। मामले की िववेचना की गयी और आरोप प ायालय म ुत िकया गया। 7 अिभयु ायालय म उप थत आया। उसके िव िव ान पूवािधकारी ारा िदनां क 28.7.2001 को भा०दं ०सं० की धारा 467/468 / 420 के अ गत आरोप िवरिचत िकये गये ।
अिभयु ने आरोप से इ ार िकया एवं िवचारण की मॉग की।
अिभयोजन ने सा ी पी0ड ू0 - 1 मोह द अहमद, पी0ड ू०-2 पन लाल, पी0ड ू0-3 मो० यूसुफ एवं पी0ड ू० - 4 ऐयाज हसन को सा म परीि त कराया है । अ कोई सा ी पुिलस ारा िचत नही ं िकया गया । अिभयोजन की सा समा की गयी । अिभयु का बयान अंधारा - 313 दं ० ०सं० लेखब िकया गया अिभयु ने मुकदमा को गलत चलना बताया और कोई सफाई नही ं दी।
अिभयु के िव ान अिधव ा एवं िव ान सहायक अिभयोजन अिधकारी की बहस सुनी तथा प ावली पर उपल सा का िविधक प से अवलोकन िकया ।
अिभयु के ऊपर आरोप है िक उसने फज जाित माणप की कूट रचना कर तथा उसे यह जानते ये िक फज है , को असली के प म योग करते ये, रा ीय सहकारी िनगम लखनऊ म दा खल कर छल पूवक ो ाम अिधकारी की नौकरी ा कर ली। अिभयोजन म सा ी मोह द अहमद को पी0ड ू0-1 के प म परीि त कराया, िजसने अपनी मु परी ा के दौरान कहा िक पन धान से पहले उसके यहाँ मदन मोहन गु ा धान थे, जो जाित के बिनया थे। मदन मोहन गु ा के र ेदार नही ं ह। उसके गाँ व म पहले कोरी जाित के लोग रहते थे । वह अिभयु आलोक मोहन को जानता है । आलोक मोहन जाित के कोरी है । यह अब Page 24 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. उसके गाँ व म नही ं रहते शहर म रहते ह। िशवभगवान, आलोक मोहन के िपता है । इस सा ी को अिभयोजन प की ओर से प ोही घोिषत कर िदया गया। इस सा ी ने अपने ितपरी ण के दौरान कहा िक घटना के संबंध म दरोगा जी ने उससे पूछ-ताछ नही ं की थी । धारा - 161 दं ० ०सं० के बयानों से इ ार करते ये, इस सा ी ने कहा िक उसने ऐसा बयान नही ं िदया था । यिद िलख िलया, तो वजह नही ं बता सकता। यह कहना गलत है िक आलोक मोहन, मदन मोहन का र ेदार है , जो बिनया जाित का है । यह भी कहना गलत है िक आलोक मोहन को बचाने के िलए वह झूठी गवाही दे रहा है ।
सा ी पी0ड ू० - 2 वह गाँ व तदु वा का धान पनलाल ने अपनी मु परी ा के दौरान कहा िक रहा है और इससे पहले मदन मोहन गु ा धान थे, भी जो बिनया जाित के थे। इनके र ेदार िशव भगवान मा र नही ं थे। वह अिभयु आलोक मोहन को जानता है । यह जाित के कोरी ह। इस सा ी को अिभयोजन प की ओर से प ोही घोिषत कर िदया गया है । इस सा ी ने अपने ितपरी ण के दौरान कहा िक घटना के संबंध म उसका दरोगा जी ने बयान नही ं िलया था। धारा - 161 दं ० ०सं० के बयानों से इ ार करते ये, सा ी ने कहा िक उसने ऐसा बयान नही ं िदया था । यिद िलख िलया हो, तो कोई वजह नही ं बता सकता । यह कहना गलत है िक आलोक मोहन, मदन मोहन का र ेदार है और बिनया जाित का है । यह भी कहना गलत है िक वह आलोक मोहन को बचाने के िलए झूठी गवाही दे रहा है । इस है सा ी पी0ड ू0-3 मो0 यूसुफ ने अपने मु परी ण के दौरान कहा िक वह अिभयु आलोक मोहन को जानता है । उसके गाँ व म आलोक मोहन व उसके िपता पहले रहते थे, वे जाित के कोरी थे । यह कहना गलत है िक वे बिनया जाित के ह और उ ोने जाित छु पाई है । इस सा ी को भी अिभयोजन प की ओर से प ोही घोिषत कर िदया गया है । इस सा ी ने अपने ितपरी ण के दौरान कहा िक इस घटना के संबंध म दरोगा जी ने उसका बयान नही ं िलया और न ही पूछ-ताछ की थी। इस सा ी ने भी धारा - 161 दं ० ०स० के बयानों से इ ार करते ये कहा िक उसने ऐसा कोई बयान नही ं िदया था। कैसे िलख िलया? इसकी वजह नही ं बता सकता। यह कहना गलत है िक आलोक उसके गाँ व का रहने वाला है और इसी िलए उसे बचाने के िलए झूठी गवाही दे रहा है ।
सा ी पी0ड ू0-4 ऐयाज हसन ने अपनी मु परी ा के दौरान कहा िक वह अिभयु हािजर अदालत आलोक मोहन को जानता है । यह भूतपूव मदनलाल के र ेदार नही ं है और न ही गु ा िबरादरी के ह। यह जाित के कोरी ह। इस सा ी को भी अिभयोजन प की ओर से प ोही घोिषत कर िदया गया। इस सा ी ने भी अपने ितपरी ण के दौरान कहा िक इस घटना के संबंध म दरोगा जी ने उसका कोई बयान नही ं िलया था। उसने दरोगा जी को यह नही ं बताया था िक यह गु ा जाित के ह और इनकी मदन लाल से कोई र ेदारी है । धारा - 161 दं ० ०सं० के बयानों से इ ार करते ये इस सा ी ने कहा िक उसने ऐसा कोई बयान नही ं िदया था । कैसे िलख िलया ? उसकी वजह नही ं बता सकता । यह कहना गलत है िक वह मु म को बचाने के िलए झूठी गवाही दे रहा है । इस कार तहरीरी रपोट के संबंध म जो सा दी गयी है , उससे अिभयोजन की कहानी संिद हो जाती है और अिभयोजन ारा ुत की गयी सा से घटना िस नही ं होती है । "
Page 25 of 43
CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors.
Clearly the offence could not be established on account of witnesses becoming hostile. Therefore, as held in the impugned order there was no honourable full acquittal as is required per the law laid down by the Hon Apex court in a number of its judgments. Thus in the case of State of Rajasthan vs. B.K. Meena & Ors. (1996) 6 SCC 417 = AIR 1997 SC 13 = 1997 (1) LLJ 746 (SC), the Hon'ble Supreme Court has emphasised the need for initiating departmental proceedings in such cases in these words:
"It must be remembered that interests of administration demand that the undesirable elements are thrown out and any charge of misdemeanor is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanor should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings."
In Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Anr. , (1999) 3 SCC 679, the Supreme Court has observed that departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. The question as to what is to be done in the case of acquittal in a criminal case has been answered by the Hon' Supreme Court Page 26 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. in R.P. Kapur vs. Union of India & Anr. AIR 1964 SC 787 (a five Judge bench judgement) as follows:
"If the trial of the criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted. Even in case of acquittal proceedings may follow where the acquittal is other than honourable."
The issue was explained in the following words by the Hon'ble Supreme Court in the following words in Ajit Kumar Nag v G M, (PJ), Indian Oil Corporation Ltd., (2005) 7 SCC 764:
"Acquittal by a criminal court would not debar an employer from exercising power in accordance with Rules and Regulations in force. The two proceedings criminal and departmental are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with service Rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused 'beyond reasonable doubt', he cannot be convicted by a court be of law. In departmental enquiry, on the other hand, penalty can imposed on the delinquent officer on a finding recorded on the basis of 'preponderance of probability'. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation.
7.3 Thus, after anxious examination of the above facts and position of law we find that the applicant cannot be said to be honourably discharged without any doubt and so he cannot be given the benefit of similar treatment in the disciplinary proceedings also. Therefore, the impugned order Page 27 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors.
is upheld on the grounds of arriving at an independent decision qua the disciplinary proceedings and the order of CJM dated 10/10/2005.
8. As regards the assertion of the applicant that he undoubtedly belongs to 'Kori' caste which is a Scheduled Caste as certified by the Tahsildar Lakhimpur Kheri vide certificate dated 24/02/1981, hence the impugned order is unjustifiable, it is important to examine the grounds stated by the applicant in his O.A. These are enumerated in para-5 of the O.A. Inter alia the critical points supporting his assertion that he belongs to 'Kori' caste as contained in the para (B) and (E-K) on 'Grounds' are extracted hereunder:
(B)Because as required the applicant submitted the certificate of age, qualification and the caste certificate issued by the Tehsildar, Lallkhimpur Kheri.
(E) Because the grandmother of the applicant approached Sri shiv Bhagwan Gupta for bringing up the Child (applicant) on her behalf as she was unable to do so due to her old aged and sickness of her son-in-law (father of the applicant) and in return the grandmother of the applicant promised Sri Shiv Bhagwan Gupta the property owned and possessed by her.
(K) Because since the applicant was living with Sri Shiv Bhagwan Gupta for a quite long time as family member, in the verification form inadvertently and without any malafide intention, the petitioner gave the name of the parent/guardian as Sri Shiv Bhagwan Gupta as his father and Smt. Premwati as his mother and the names of sons and daughter of Sri Shiv Bhagwan Gupta as his sisters and brothers.
8.1 From the above it is admitted that the stated foster father viz., Shri Shiv Bhagwan Gupta was not a person of SC category. The applicant would like the respondents to accept Page 28 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. that per the Will of his grandmother by stated name 'Sukhrani' w/o Nokhe 'Kori', he belongs to 'Kori' caste and so is of SC category. For the sake of assertion of the applicant, it is important therefore, to examine this Will which therefore, is extracted below [Annexure-4]:
Annexure-4:
मनिक मु0 सुखरानी बेवा नोखे कोरी िनवासी मो० िशवपुरी • िजला खीरी तहसील लखीमपु र खीरी की ँ मेरी आयु इस समय स र वष की हो गयी है और म शरीर से काफी कमजोर हो गयी ँ न जाने िकस समय जीवन का अ हो जाव मेरा एक सगा नाती आलोक मोहन जो अपनी माँ के सवकाल म ही मर जाने के कारण अरसा लगभग ारह वष आ मेरी इ ानुसार मेरे पडोसी ी िशव भगवान की संर ता म पु वत पालन पोषण कर रहा है उसके अलावा मेरे खानदान म कोई पु पु ी भाई भतीजा आिद जीिवत नही ं है अतः दू रदिशता के िवचार से यह आव क व उिचत है िक म अपनी िन स ि का ऐसा ब कर दू ँ िक मेरी मृ ु के बाद िववाद उ होकर जायदाद न न हो जाये और मेरे नाती का पालन पोषण व िश ा जारी रह सके अतएव म अपने थिच व थर बु तथा इ यों की थ अव था म यह (इ ा-प ) वसीयत नामा िलखे दे ती ँ िक जब तक म जीिवत ँ अपनी स ि की पूण ािमनी र ँ गी और मेरी मृ ु के प ात ी िशव भगवान पु ० ी राम दयाल सािकन मो० िशवपुरी शहर व तहसील लखीमपुर परगना व िजला खीरी जो मेरी और मेरे नाती आलोक मोहन को वष से सेवा करते है खाना कपड़ा दे ते है बीमार होने पर इलाज कराते है और अपने पु की भाँ ित ही मेरे नाती की िश ा आिद का ब करते है उनसे म अ स ँ मुझे उनसे ब त ार व उन पर पूण िव ास है अतएव मेरी इ ानुसार मेरे नाती के बािलग होने तक ी िशव भगवान मेरी स ि के ामी होंगे और मेरे नाती के बािलग होने पर ही स ि के िबकी ब क आिद के वही अिधकार इस इ ा प म अंिकत दोनो यों की सहमित से ा होंगे जो मुझे ा है अतः इस वसीयतनामा का वासी ी िशव भगवान को िनयु करती ँ मैने इससे थक कोई वसीयत नही की है यह मेरी पहली व आ खरी वसीयत है इसके अलावा कोई वसीयत पेश करे तो वह िनरथक व बेबुिनयाद समझी जाय । or नगर लखीमपु र मरगना व अतः यह वसीयतनामा दु ी होश व हवाश िबना िकसी ज व दबाव अपनी इ ानुसार सहष पढ़वाकर व सुनकर तहरीर कर िदया िक सनद रहे व समय पर काम आव ।
िववरण भूख जो वसीयत िकया गया मो० िशवपुरी उ र म सड़क बाद मकान लालता साद ीवा व दि ण म मकान ीमती पाणी प ी गलकू पूव म सड़क खड़ जा पि म म मकान पु ू लाल पटवारी ल ाई पूव से पि म चौड़ाई उत्तर से दि ण 20 िफट 22 िफट = 440 वग िफट िदनां क - 14 िसत र 1973 ई0 लेखक छोटे लाल गु ा द ावेज नवीस लखीमपु र Page 29 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors.
9. Per the Will, by stated name 'Sukhrani' w/o Nokhe 'Kori', on becoming of age about 70 years and the fact that
(a) the mother of the applicant died in pregnancy, (b) the father of the applicant was continuously sick, (c) that she [that is the grandmother did not have any son or daughter or cousin and (d) that for some 11 years the grandmother's neighbor, Shri Shiv Bhagwan was taking care of her and her grandson, so, she is vesting her stated property [which is a house plot 440 square feet] in name of Shri Shiv Bhagwan. The applicant would assert that on the basis of this Will it proves that as his stated grandmother was of 'Kori' caste and even if he was brought up by Shri Shiv Bhagwan who was a 'Gupta', he belonged to the 'Kori' caste which is an SC category and so he belongs to the SC category.
9.1 In order to weigh this logic of derivation of caste, it is first of all important to notice that the Will does not the mention either the name of the father or the mother of the applicant. The O.A in hand mentions the name of his father as Shri Shiv Bhagwan but no name of the genetic father or mother of the applicant is stated anywhere in the O.A or the Rejoinder filed by the applicant. Even in the earlier O.A No. 266/2014 the applicant has stated the name of Shri Shiv Page 30 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. Bhagwan as his father and no name of his genetic father or mother is stated in the judgment of the CJM. The witnesses of the prosecution who went hostile do not mention anywhere the name of the genetic father or mother in the judgment. Moreso, no name of his siblings or non-existence of them is affirmed with any bit of support from anywhere and the factum in any case is omitted in the Will which notwithstanding mentions that the maternal grandmother did not have any son, daughter or cousin and not a word is breathed about the paternal grandparents - as to their status, existence or not, etc. 9.2 The applicant has not produced any copy of the 'Parivar register' etc or any village document which would help support as to who his genetic father and mother were. The rather frail logic of the Will of the maternal grandmother to assert that he / his parents belonged to 'Kori' caste is rather farfetched and no known case law is available to help us support this contorted logic of deriving the caste from a property Will. It is noticed that the Will has no witnesses and so help cannot be called from such possible persons to support the contention of the applicant. Moreso, when even the names of the genetic father and mother are not known, then to rely fully on the stated caste of grandmother cannot be a legally derived substitute for parents' caste lineage Page 31 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. without any related supportive document. We do not also have any affidavit or assertion of Shri Shiv Bhagwan Gupta himself that such an arrangement qua the applicant was made which proves his caste. Why the applicant has not produced him as witness or any of his siblings - foster - shall we say - to support that he was living with them since birth is a big mystery and only casts doubt on this fairy tale story. There has to be some degree of cogent evidence and mere plain vanilla assertion cannot be taken as adequate proof even in a disciplinary proceedings. This brings us to the process of Enquiry which the applicant has apparently tried to evade with frivolous ingenuity.
9.3 In the Enquiry conducted as part of disciplinary proceedings, the applicant did not deem it fit to have any witnesses to buttress his case of his belonging to 'Kori' caste. His only assertion is that the respondents had Government witnesses. There is no document shown that he made efforts to produce any supportive witness from his side or any document pertaining to village records that he belonged to 'Kori' caste. There is no document whatever he may assert now which would show that he wanted to produce such and such witnesses to support his case. Now he is trying to act and pontificate that the respondents have produced biased witnesses and he is being charged ex parte. In the Grounds Page 32 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. para 'I' above, the applicant has himself admitted that in the High School as well as Intermediate examination he has stated his parentage as Shri Shiv Bhagwan but caste as 'Kori' caste. This makes the veracity of the said education certificate which is also not firstly filed doubtful, insofar as relation to caste identity is concerned. How could the school state his caste as 'Kori' caste when the name of his father was that of a Gupta. The village folk know better than this in India. The applicant has not bothered to show how the school arrived at his caste being 'Kori' caste in the first place. The education certificates are good evidences for date of birth when there is a dispute. Not of caste in the absence of any supportive document. The applicant has not bothered to reveal as to what was the name of the Tahsildar who gave the certificate of 'Kori' caste vide document dated 24/2/1981 and neither has he stated anywhere that he tried to have the said Tahsildar as witness in his support during the Enquiry process in the disciplinary proceedings initiated against him or even attempt to find out his whereabouts from the Tahsil office even if some good time had lapsed. There is a very common saying - a dying man does every action to save his life. We do not find any such efforts by the applicant when his entire life's career was at stake. The applicant has not cared to give any document even if in the name of RTI Page 33 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. seeking name of the stated Tahsildar in 1981 who may have granted the seemingly bogus certificate.
9.4 The changes in the Verification forms in the name of correction of caste and parentage add further fuel to the fire of doubt raging already. The CA-2 which is the Verification form filled by the applicant himself clearly states the name of his father as Shri Shiv Bhagwan and mother as Premwati - who is wife of Shri Shiv Bhagwan. The names of sisters and brothers who the applicant disowns as that being of children of Shri Shiv Bhagwan and not his genetic siblings is also noteworthy. Nowhere is the name of the genetic father and mother known. He could have easily asked the same from Shri Shiv Bhagwan or Premwati his stated foster mother and mentioned it in his statements. This could have been easily checked from village records which maintain the names of the residents of the village. That there is no name of the genetic parents and neither is there any record which could prove their existence in this Universe is an enigma rapped in a puzzle.
10. In the circumstances emerging as above, mere reliance on the Will to prove a caste which is a personal document and not a third party document or any official document is indeed inadequate evidence from any point in a Court of Page 34 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. law.When we do not know the parentage and neither has the applicant taken any pains to produce any record or any shred of evidence or document or legally justifiable record / statement that who is his father/mother were and to what caste therefore, they belonged, how can a maternal grandmother's Will and that too ab inito with regards to property vesting on someone be legally justifiable enough to be accepted as a record and proof of anyone being of any caste category.
10.1 This Tribunal is no one to adjudge the order of the CJM. It is also not the competent Court to decide the 'caste' of a person. What is clear is that the respondents have negated the stated caste category on the basis of the report from the District Magistrate [DM] of the District Lakhimpur Kheri from which the applicant hails. The report of the DM Kheri dated 28/8/1990 is as under:
Page 39 Annexure CA-1 ेषक, िजलािधकारी, खीरी।
सेवा म, िड ी डाइरे र (प), रा ीय सहकारी िवकास िनगम, खीरी इ ी ूशनल ए रया हाउस सिमित नई िद ी- 1100 16.Page 35 of 43
CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors.
सं ाः जाित स ापन (आलोक मोहन)/सा०िल० िदनां क 28 अग , 1990 महोदय,15-40/85- शासन उपरो िवषयक आपके प सं ा- एसटीपीसीिदनां क 23-6-90 के संदभ म अवगत कराना है िक गत मामले म करायी गयी जां च के प रणाम प यह त काश म आये ह िक ी आलोक, मोहन कोरी जाित (अनुसूिचत जाित) के न होकर बिनया (गु ा) जाित के ह। य िप जां च के दौरान ी आलोक मोहन ारा ेिषत वाई०डी० िड ी . कालेज का जू० बे० ी टा फर सट िफकेट तथा िनगम माण प भगवती साद बालक िव ालय म ी मोहन को कोरी जाित .. का दशाया गया है , िजसे उ जां च के प र े म ाहय नही माना गया ।
भवदीय,
ह० अपठनीय (अिनल प) िजलािधकारी, खीरी।
As against above if we examine the caste certificate issued by the stated Tahsildar, it does not mention the name so that nothing can be identified as to who issued the certificate. The Certificate is extracted below for ready reference:
Annexure-3: Certificate of Caste dated 24/02/1981:
14608/w\ -BM(L) 24-2-81 कायालय तहसीलदार लखीमपुर खीरी ।
अनुसूिचत जाित माण-प ( अ गत शासनादे श सं0 66 एस० सी० / 2 बी 322-64 िद0 30-6-64) जाँ च के आधार पर मािणत िकया जाता है िक आलोक मोहन िशवभगवान िनवासी ाम ते दु आ आ ज ी तहसील लखीमपुर िजला खीरी उ र दे श कोरी जाित म उ ए, ह जो िक अनुसूिचत जाित एवं अनुसूिचत जनजाित (संशोिधत अिधिनयम) 1956 के आधीन अनुसूिचत जाित मानी जाती है ।
ह० अपठनीय तहसीलदार लखीमपुर 24.2.81 Page 36 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors.
The applicant has not shown or asserted with regards to any representation to competent authority contesting the report of the DM which he could have done since his entire life career was being brought to naught even while he was diligent and resourceful enough to contest cases in the Tribunal and the Hon' High Court. While the name of the DM is known and also an Additional Tahsildar Shri Babu Lal Gupta was examined as witness in the Inquiry who clarified regarding the genuineness of the order of the DM, the applicant took no pains to cross examine him and is now casting doubt as to the veracity of his statements - that of Additional Tahsildar vide his representation dated 07/11/2008 as part of the reply to the Enquiry report.
10.2 Examination of the Enquiry report itself separately points out that the applicant has been shying away and avoiding direct settlement of the dispute during the Enquiry process. The Enquiry report excerpts below would testify to this:
EXERCEPTS FROM THE REPORT OF ENQUIRY IN THE MATTER OF SHRI ALOK MOHAN, PROGRAMME OFFICER IN THE REGIONAL OFFICE, LUCKNOW "Under Regulation 41 of the NCDC Service Regulations, the Managing Director appointed the undersigned as Enquiry Officer for enquiring into the charges framed against Shri Alok Mohan, Programme Officer (Under suspension) vide memo No. NCDC: 5-40/85Admn. dated 27th March, 1991. A copy of the memo alongwith the annexures containing the articles of charges and the allegations in support of the charges is at Annexure-I. Page 37 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors.
..... After appointment to him the blank attestation Administration Division forwarded of verification his character and to be filled up for for ascertaining a antecedents. Against the column of caste to whether he belonged to SC/ST category, Shri Mohan indicated 'No' [emphasis supplied] whereas he had earlier indicated in his application etc. that he belonged to S/C category and his appointment to the post was based on his being a SC candidate. of Programme Officer the the furnishing of attestation Besides, Shri Mohan delayed forms considerably and in fact he finally furnished the same after issue of a number of communications from the Head Office. [emphasis supplied]
3. On 24.5.1985 the attestation forms were sent to DM, Lakhimpur Kheri and Lucknow for verification of his character and antecedents besides requesting for verification about his caste. The DM, Lakhimpur Kheri finally informed, the NCDC, after allowing personal interview to Shri Mohan that he belonged to Bania (Gupta) caste and not Kori SC) caste as indicated by him.....
......
4. Prior to this on 4.9.1990 a letter was issued to Shri Mohan directing him to explain as to why action for discharging from service should not be taken against him for production of false caste certificate. On 5.12.1990 Shri Mohan had filed a CWP in the Allahabad High Court, Lucknow Bench for quashing the | suspension order.
5. Besides the appointment of the undersigned as Enquiry Officer, Shri J.L. Bhatia, Deputy Director Admn.) was appointed as Presenting Officer by the Managing Director in exercise of the powers under Section 41、5) of the NCDC Service Regulations. Mohan as Statement of Articles of Charges against contained in memo of 27th March, 1991 were as under:
ARTICLE I Shri Alok Mohan at the time of appointment to the post of Programme Officer w.e.f. 3rd September, 1985, on the basis of the written examination/interview furnished a certificate in support of his belonging to a Kori community SC) and he accordingly appointed to the said post against a post' reserved for the SC category.
ARTICLE II Failure on the part of Shri Alok Mohan to furnish the original certificates in support of caste, qualifications, in spite of repeated reminders, lent support to the suspicion about the authenticity of his certificate of caste and eventually on a reference made to the DM, Lakhimpur Kheri, it transpired, after verification, that the certificate of caste furnished by him, in support of his belonging to SC community, was false in as much as the DM, Lakhimpur-Kheri, through his communication dated 28.8.90, informed the Corporation that Shri Mohan did not belong to the Kori community (SC) and instead belonged to the Banya community Gupta). ...
ARTICLE III Page 38 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors.
Shri Alok Mohan was accordingly informed about the communication received from DM, Lakhimpur-Kheri, vide Memo. dated 14.9.90, informing him that he had submitted a false certificate in regard to his case and availed concession meant for persons belonging to SC community under the GOI orders, whereas he was not eligible for these concessions. His attention is also drawn para 2 of the letter No. NCDC.5-40/85-Admn. dated 5.8.85, containing terms and conditions of his appointment, wherein it had been clearly laid down if any declaration or information proved to be false, he was liable to be discharged from the service of the Corporation besides such other action as the Corporation may deem fit. Shri Mohan has, thus, violated the terms and conditions of his appointment and this attitude is violative of Regulation 17 of the NCDC Service Regulations entailing up all employees to maintain among others absolute integrity and do nothing unbecoming of an employee of the Corporation.
ARTICLE IV Shri Alok Mohan has failed to furnish a reply to the memo. dated 14.9.90 followed by Memo. dated 30.10.90.[emphasis supplied]. This tantamounts to non-compliance of the orders of the Corporation. and is violative of Regulation 17 of the NCDC Service Regulations.
6. With a view to enquiring into the charges the undersigned held 6 hearings. In the first hearing held at Lucknow on 14.11.1991, Shri Mohan failed to appear and the undersigned decided to adjourn the [emphasis supplied] ] hearing and fixed the next date of hearing on 12.12.1991 which was subsequently postponed to 19:12.1991. During the second hearing held on 19.12.1991 Shri Mohan appeared before and undersigned and confirmed the receipt of the Memo dated 27.3.1991 and denied the charges levelled against him and stated. that he would like to submit a written statement of defence for which he asked for a copy of the documents listed at S.No.1 to 10 in Annexure-III enclosed) to the said Memo. The undersigned permitted him to peruse these documents by stating that these could not be provided to him under the Rules. Shri Mohan was permitted to take down notes from the documents. He, however, indicated that he would require 20 days time to submit the statement of defence which was permitted by the undersigned and accordingly the hearing was adjourned without fixing the next date. [emphasis supplied] The undersigned indicated that the next date of hearing will be fixed after the statement of defence has been submitted by the charged employee.
7. The third hearing was conducted on the 5th March, 1992 at Lucknow. On the same day Shri Mohan informed the undersigned that he was not in a position to attend the hearing as he had been admitted in a Hospital and advised bed rest but no medical certificate was received by the undersigned. Mohan was issued a memo advising him to submit the medical certificate. [emphasis supplied]
8. The 4th hearing was held on 21.5.1992 at Lucknow, which was postponed to 28.5.1992. During these hearings Shri Mohan again raised the issue of supply of documents which was refused. During this Page 39 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. hearing the charged employee also requested for permission for The undersigned engaging a defence assistant. directed him to indicate the name of the defence assistant so that his request could be acceded to..............
9. The 5th hearing was held on the 6th August, 1992 at ensure the presence Lucknow with the advice to RD, Lucknow to of the listed witnesses. On the 5th August, 1992 a communication was received from the office of the DM, Lakhimpur Kheri who requested the Enquiry Officer to fix some other date of hearing as desired. During SO that their representative would attend this hearing Shri Mohan submitted an application for deferring the enquiry in view of the fact that the Corporation had filed. an FIR and the matter was deemed to be subjudice. The undersigned asked Shri Mohan to submit any document in support of his contention which he failed to do so. The Presenting Officer drew the attention of the undersigned to the position of Rules and the request of Shri Mohan for deferring the enquiry was not acceded to. The undersigned then asked Shri Mohan to submit a reply to the charges contained in the Memo. Shri Mohan refused to give any comment or reply. [emphasis supplied] The Enquiry Officer also enquired the name of the defence assistant proposed by Shri Mohan. The charged employee refused to give the name of the defence assistant also. This hearing was adjourned to 11.30 A.M. and after resumption Shri Mohan expressed his inability to remain present and, thus, abandoned the Enquiry. The Presenting Officer pleaded that the proceedings may be conducted ex- parte and sought permission for producing the witnesses. The undersigned accepted the plea of the Presenting Officer and directed the Presenting Officer to produce the witnesses on the following day i.e. on 7th August, 1992. The witnesses appeared before the undersigned are at Annexure II.
10. The final i.e. 6th hearing was scheduled for 17.9.1992 at Lucknow but was postponed to 24.9.1992. At this hearing Shri Mohan failed to appear. Shri B.L. Gupta, Upper Tehsildar, Lakhimpur Kheri appeared on behalf of the DM, Lakhimpur Kheri and his statement was recorded and may be seen at Annexure III. [emphasis supplied]
11. From the statements of the witnesses appeared before me and also taking into account the statement of the representative of the DM, Lakhimpur Kheri, I am of the opinion that Shri Alok Mohan submitted a false certificate in support of his belonging to SC community. It is proved beyond doubt that Shri Mohan actually did not belong to the SC community. I, therefore, hold him guilty of the charge of production of false caste certificate in order to derive the benefit of concessions meant for SC community.
B.S. Sharma ) Chief Director (S&RC) Enquiry Officer 20.1.1993 Page 40 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. Clearly the applicant has left much to be desired by way of positive participation in the six hearing of the disciplinary proceedings as is evident from the emphasized excerpts of the Enquiry report above. With what face is he now alleging that the Enquiry was biased and ex parte. It is no longer res integra that Bias without arraying the concerned biased person is no legally sustainable bias. The Hon Apex court in the matter of State Of Punjab vs V.K. Khanna & Ors on 30 November, 2000 in Case No. Appeal {civil} 6963 of 2000, judgment dated 30/11/2000 has held as under:
"One redeeming feature in the matter of attributing bias or malice and is now well settled that mere general statements will not be sufficient for the purposes of indication of ill will. There must be cogent evidence available on record to come to the conclusion as to whether in fact, there was existing a bias or a malafide move which results in the miscarriage of justice (see in this context Kumaon Mandal Vikas Nigam v. Girija Shankar Pant & Ors: JT 2000 Suppl.II 206). In almost all legal enquiries, intention as distinguished from motive is the all important factor and in common parlance a malicious act stands equated with an intentional act without just cause or excuse. In the case of Jones Brothers (Hunstanton) Ld. v. Stevens (1955 1 Q.B. 275) the Court of Appeal has stated upon reliance on the decision of Lumley v. Gye (2 E & B. 216) as below: For this purpose maliciously means no more than knowingly. This was distinctly laid down in Lumley v. Gye, where Crompton, J. said that it was clear that a person who wrongfully and maliciously, or, which is the same thing, with notice, interrupts the relation of master and servant by harbouring and keeping the servant after he has quitted his master during his period of service commits a wrongful act for which is responsible in law. Malice in law means the doing of a wrongful act intentionally without just cause or excuse: Bromage v. Prosser (1825 1 C. & P.673) Intentionally refers to the doing of the act; it does not mean that the defendant meant to be spiteful, though sometimes, as, for instance to rebut a plea of privilege in defamation, malice in fact has to be proved..."Page 41 of 43
CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. Hence the assertion of bias and exparte inquiry by the applicant is negatived.
10.3 The applicant has himself made no efforts to state the name of the said Tahsildar or have him examined. He has not stated the name in the representation made against the Enquiry also. We do not even know who this Tahsildar was as no name is stated in the submitted caste certificate. The allegation that it was the duty of only the respondents to do so is not convincing fully because even if the respondents did not summon the said Tahsildar, the applicant could have requested him to be produced as a witness on his behalf which he was fully entitled to during the course of Enquiry under the disciplinary proceedings held against him. What kind of conduct and evidence are we seeing in the matter? It is in the least quite disturbing. The applicant has not led any witness in the disciplinary proceedings which he strenuously avoided per the Inquiry report. The assertion of the applicant that the DM's report mentions that the school certificate states that the applicant belonged to 'Kori' caste does not help because admittedly the parentage stated in the High school as well as Intermediate level has name Shri Shiv Bhagwan as father of the applicant. While we do not have the said document on record, we also notice that the applicant did not bother to even have any one from the Page 42 of 43 CAT, Lucknow O.A. No. 530 of 2018 Alok Mohan Vs. U.O.I. & Ors. school concerned examined as witness in the Enquiry report which he could have done or at least tried to do so to prove his truthfulness given the fact that he asserted in his representation against the Enquiry report that the respondents brought forth only Government witnesses to support their case. It is for the applicant to get the DM's report quashed regarding the caste of the applicant. Till such time it exists it cannot be brushed aside.
11. In view of the peculiar facts and law points of the case as discussed in thread bare detail heretofore, we are unable to accept the assertion of the applicant that he belongs to 'Kori' caste for the purpose of this O.A. Hence we cannot hold the impugned order as unjustifiable. Hence the O.A is liable to be dismissed and is dismissed.
12. No costs.
(Devendra Chaudhry) (Justice Anil Kumar Ojha)
Member (A) Member (J)
vidya
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