Central Administrative Tribunal - Delhi
Subhash Chand S/O Shri Ajab Singh ... vs Delhi Development Authority on 28 February, 2008
ORDER
M. Ramachandran, J. (Vice Chairman)
1. The Hon'ble High Court of Delhi by order dated 24.10.2007 has transferred the above matter to this Tribunal, which was pending with them as WPC No. 6244/1998. In reply to the averments in the original petition, counter affidavit had come to be filed, followed by a rejoinder-dated 24.12.1999. At each stage, documents had come to be marked. After the case had reached this Tribunal, on 22.01.2008, additionally, four documents had been made available at the instance of the applicant. Profusely, in the course of arguments, reference was being made to all such documents, and while disposing of the application, we may also have to advert to some of them to be picked up necessarily at random and not in definite order. Mr. Siddharth Aggarwal, had appeared on behalf of the applicant and Mr. Arun Birbal appeared on behalf of the respondents.
2. We may refer to the relevant facts as hereinbelow.
3. In response to a Notification dated 15.06.1985, issued by the Delhi Development Authority, inviting applications for the post of Junior Engineer, the applicant had submitted his details. The qualifications prescribed were Graduation in Civil Engineering or in the alternative Diploma in Civil Engineering with two years experience after obtaining Diploma. Persons already employed in Governments/Public Undertakings were expected to apply through proper channel.
4. The applicant is seen to have been conferred with appointment after undergoing the due process of selection, on 17.04.1986. He has a Diploma in Civil Engineering. As of now it is not under dispute that he had adequate experience, as Junior Engineer, with a private enterprise from 01.08.1981 to 31.10.1982, as a Work Assistant in the Delhi Development Authority from 01.11.1982 to 17.09.1983, and had been working as Junior Engineer in the U.P. Jal Nigam at Lucknow from 22.9.1983 onwards, as on the date of submitting the application (26.06.1985). However, unfortunately for him, in the course of verification of certificates, after a few years, it came to be observed that there was certain amount of overlapping, in the service claimed, under different organizations. According to the Respondent, in certificate issued by the Assistant Engineer of Delhi Development Authority, dated 19.10.1983, it had been shown that the applicant had experience as Work Assistant from 01.11.1982 to 19.10.1983, the date on which the certificate is stated to have been issued. The certificate from the U.P. Jal Nigam showed his experience from 22.09.1983 onwards and the two did not tally, since there was overlapping of twenty-seven days.
5. In all bona fides, and to clear the issue, it appears that the Delhi Development Authority had issued a letter to Mr. S.R. Solanki on 30.06.1986 (Annexure P-3) whereby the said officer had been asked to explain as to why the certificate issued by him in favour of the applicant did not contain the correct details. This is especially because Mr. Solanki, a few days back prior to that date, had issued Annexure P-2 certificate to the applicant showing that period of his engagement with the DDA was from 01.11.1982 to 17.09.1983. In the course of verification, evidently, the applicant had been directed to produce, at the first instance, the original certificate issued by Mr. Solanki for examination but he had pleaded that he has misplaced the same. Apparently thereafter, the applicant had secured a fresh certificate from Mr. Solanki and the latter appears to have duly obliged him. It is evident that Mr. Solanki when asked about the discrepancy in the earlier certificate had informed the respondent that the certificate, which might have been made available by the applicant, as received by him, on 19.10.1983, was not his handiwork.
6. The office note made available with the additional documents, would reveal that factually the applicant had worked in the Delhi Development Authority actually during the period from 01.11.1982 to 17.09.1983. Mr. Solanki had taken a stand that he had not issued a certificate, as has been claimed by the applicant. The original certificate was not also produced by the applicant. Sensing presence of a foul play, the issue had been referred to the Vigilance Department for further investigations and for necessary action as the conduct rules permitted. We find that as a net result, a charge sheet had been issued to the applicant. The charges framed, as could be extracted from the inquiry report, is as following:
Sh. Subhash Chand, JE(C) at the time of applying for the post of JE(C) in DDA in 1985 submitted a certificate of experience dt. 19-1083 with forged signature of Sh. S.R. Solanki the then A.E.(C), DD-VII, DDA in which Sh. Subhash Chand was shown as worked on the post of Work Assistant on daily wages for the period from 1-11-82 to 19-10-83, whereas on the basis of another certificate issued by the same AE of DD-VII on 27-5-86, Sh. Subhash Chand, JE had worked only for the period from 1-11-82 to 17-9-83 on daily wages.
A copy of the memorandum of charges, however, is not available on record. The Inquiry Officer Mr. S.K. Mukherjee, IAS (retired), had made available his inquiry report on 24.10.1996. The Commissioner, as a disciplinary authority, had, concurring with the finding of the Inquiry Officer, issued a show cause notice on 15.09.1997. As penalty, thereafter he had removed the applicant from service on 23.02.1998. An appeal filed stands rejected by the Engineer (Member) on 17.7.1998. These orders are under challenge.
7. The report of Mr. Mukherjee indicates that three witnesses had been examined by the prosecution and a few documents also had been relied on. Mr. Solanki appears to have been the principal witness and he had been confronted with certain documents. In respect of a specific document (Ex. P-4), which is suggested as incriminating, he had submitted that the signature on the photocopy made available to him could not be recognized and it is not signed by him. He had confirmed the signature on the photocopy of the experience certificate dated 27.5.1986. But when Exhibit P-4 was shown, namely, the photocopy of the experience certificate, according to him, it appeared to be fabricated. This has been relied on.
8. Mr. Siddharth Aggarwal submits that in the face of such scanty material, and when there was no real effort taken, to substantiate the charge, the finding was without foundation. It was essential that a positive conduct was to be proved as shown by the applicant, especially of presenting fabricated materials. Therefore, the finding of the inquiry officer could not have been acceptable. He also points out that any clinching evidence, which would have operated to establish the alleged default was not there, and the circumstance favourable to the applicant by design or otherwise, has been sidelined. This is a serious error, which vitiate the findings.
9. He had emphasized one other circumstance, namely, that there would not have been any earthly purpose for the applicant to produce any fabricated materials, as the minimum experience required by the advertisement had been already there available, uninterruptedly. An addition of 27 days could not have had any impact on his claims. The suggestion thereafter made was that Mr. Solanki had attempted to disown his certificate, which, as a matter of fact, had been issued to the applicant perhaps by an error, for which the applicant could not have been proceeded against. Perhaps, a clerical error would have been there but of no consequence. He suggested that it would have been only fair that the mistake had been owned up. Instead, the entire blame had been passed on to the applicant, and the conduct of the officer was inexplicable.
10. As a second limb of the argument, counsel submits that an error or misrepresentation could not have been considered as actionable made in the application, as he was not under any disciplinary control of respondents. Perhaps by subsequent amendment, such powers might be there. However, he conceded that it may be recorded only as a submission but he was not intending to rest on such a contention.
11. Mr. Birbal, on the other hand, submits that the applicant had been behaving in a suspicious manner and although it may not be possible for anybody to explain how his mind worked wherein he was relying on a forged certificate, nevertheless so long as it was a piece of document available with the authority, a duty was cast on the authority to deal with the situation as it would have been possible to assume that the very integrity of a person was debatable. He also relies on the circumstance that in spite of receiving an opportunity, the original of the certificate had not been made available and this, prima facie, showed that applicant had a guilty mind. If the document was given over, it would have been conclusively possible to assume whether forgery was there and find conclusively as to the exact point, when the error had crept in. It is further submitted that it was not as if there was effort at any point of time to frame any person. The discrepancy in the certificates necessarily had to be looked and even Mr. Solanki was not spared, since at the first instance it was possible to assume that he had issued a certificate without due care and caution. However, only when it came to the notice of Authority that there was possibly a fraud being played, then alone after consultation with the Vigilance Department, proceedings had started. When a proper inquiry is held and sufficient materials are there, to assume that there was possibility of a misrepresentation, and when there is due advertence to legal formalities, Tribunal will not normally interfere, as the disciplinary action was bonafide.
12. The anxiety of the Court always should be that a person should be permitted to be condemned only in a circumstance where it will be possible to find him guilty of lapses on reliable materials. This principle equally will be applicable even in domestic proceedings although there is a relaxation permissible that strict application of Evidence Act need not be there. As we briefly referred to earlier, the applicant has serious reservations about the report submitted by the enquiry officer as he had failed to take note of full available facts. Therefore, it may be relevant to examine as to how the issue has been dealt with by the inquiry officer. We had earlier referred to the charges framed against the delinquent workman. The Enquiry Officer himself had put it under quotation suggesting that the employee was answerable for the conducts so alleged alone. Suggestion or foul play was that at the time of applying for the post, applicant had submitted a certificate of experience dated 19.10.1983 with forged signature of Shri S.R. Solanki. In the report, reference is made to the evidence of three prosecution witnesses, namely, Mr. S.R. Solanki, Mr. N.P. Soni (Assistant Director, Vigilance Branch) and Mr. Sahu Ram, Supdt. PB-II. Witnesses 2 and 3 had contributed little and they have been asked only about the statements that were on record.
13. But the most that we can find from the record of the inquiry is that Shri S.R. Solanki had went upto the extent that 'the signature on the photo copy of the experience certificate cannot be recognized and not signed by him'. This, of course, also has come at a stage when he had been confronted with Exhibit P-8 letter to the Deputy Director. It is further recorded by enquiry officer as following:
He was shown Ex. P-4 i.e. photo copy of the experience certificate and he confirmed that his signature appears to be fabricated.
Learned counsel for the applicant points out that this alone is suggested by the prosecution and relied upon as incriminating material. Mr. Solanki had given Vigilance Department a letter wherein he had stated that signature on the photocopy of the experience certificate cannot be recognized. In the inquiry, perhaps he has gone one step further stating that his signature in the photo copy of the experience certificate appeared to be fabricated.
14. Counsel points out that a finding is arrived as against applicant nevertheless, and practically ignoring presence of other materials, which were more relevant. With reference to the office note, especially it is asserted that there was no dispute about the position that at the initial time of application, applicant was expected to submit photo copies of all certificates and, in fact, it is indicated that attested certificates filed by him are present in the office files at all times. One document was made available as a defence document viz copy of Exhibit D-3. Counsel refers to the observation of the Inquiry Officer in the report which runs as following:
In his cross examination, he (PW-3) stated that Ex. D-3 is available in Personal File of C.O. as on date alongwith its enclosures.
Citing from the report, it is shown that in the cross examination of the DW-2, he had stated that he was shown Exhibit D-3. The document bore an attestation by somebody that it was a true copy. But there is a `cutting' on the date of experience. As rightly pointed out by the counsel for the applicant, the applicant could have been fastened with authorship of D-3 alone. Exhibit P-4 is a photo copy obviously and as presently made available for our perusal, it does not contain attestation. What we see is that the applicant is made answerable in respect of Exhibit P-4 of which he had no direct authorship or responsibility. When it is admitted that attested copies made available by him at the time of his application were very much in the office, no effort is taken to confront him with such documents or place it before Mr. Solanki, for him to make a statement one way or the other whether the said document contained his signature or not.
15. Normally, correction in a document may, per se, point an accusing finger against the person who would have derived benefits, because of the correction even though it may not be generally possible to pin point as to, at which point of time, correction was incorporated. The general presumption of this nature, however, is not possible to be placed on the alleged and relied on incriminating documents because the correction, in no manner, would have been advantageous for the applicant, since the admitted position was that even otherwise there was no doubt about the position that he had had the requisite experience and need not have gone to discredit himself by creating a situation. We cannot also possibly at this point rule out the possibility of correction even at the instance of Mr. Solanki or any other person at his behest in an effort to extricate him from the allegation of an indiscretion or negligence. The documents were not kept in the custody of the applicant at any time. Others would have had access to the files. Mr. Solanki himself had a reason for disowning the certificate, and the easiest course would have been to suggest that signature was forged and he had not himself signed it. The figures also could have been corrected, by intervention of any third person and it would have been unsafe to come to a conclusion wholly on such a circumstance against the applicant albeit the position that there was possibility of a suspicion. Therefore, we are not in a position to endorse the report of the Inquiry Officer. He, in fact, was expected to go in depth to the issues. The penalty advice has been issued, on the basis of the above report. Necessarily we will have to observe that the final decision was not called for.
16. A further contention had been raised that the appellate authority ought to have examined the matter in greater detail, as the issue involved in very serious consequence to the applicant. We, of course, note that the appeal has been disposed of in a most casual manner. Even if an appellate authority is not expected to go to each and every aspect of the case, especially when he is concurring with the lower authority, we have to notice that the statutory rules require the authority to invest himself so as to examine whether the findings were justified and the punishment was excessive or inadequate. Decision on an administrative matter may be a routine for an executive authority, but when it becomes life threatening to another civil servant, the person concerned is expected to rise to the occasion, as the situation may demand. However, since we are setting aside the basic order itself, it may not be necessary for us to go into greater length on this aspect.
17. Mr. Birbal submits that the applicant had a primary duty to make available the original certificate so that he should have been in a position to clear the doubts once an for all and his stand that he had lost the document, itself made the position suspicious, affecting his credibility. However, it may be too risky to accept the argument since the prosecution principally had duty to establish that a person is guilty of the lapses/allegations, about which he becomes answerable. The burden cannot be shifted at that point of time.
18. In the totality of the circumstances, we are of the view that the impugned order is to be unsettled. Of course, we had considered whether it would be advisable to send the matter back for reconsideration de novo. But the officers concerned might have retired from service, and the clinching circumstance if at all would have been oral testimony alone, which may not be sufficient enough, to pin down guilt. The further circumstance that the applicant had been qualified even otherwise, and had a good academic record, according to us, also would be a circumstance to opt for giving the issues a quietus. We set aside the order of removal dated 23.02.1998 as well as the appellate order dated 17.7.1998. Respondents are directed to issue appropriate orders whereby the applicant is reinstated in service.
19. On the facts and circumstances of the case, we do not think, we will be justified in directing that back wages are to be paid to the employee. But his services are to be considered as uninterrupted for all purposes and due increments and revisionary benefits and seniority are to be given to him as if he had continued in service. The salary on reinstatement has to be appropriately fixed and paid as above. Follow up orders, in any case, are to be issued by 31.3.2008, positively.
20. The O.A. is allowed in the above terms. There will be no order as to costs.