Central Administrative Tribunal - Jabalpur
Jitendra Kushwah vs M/O Railways on 28 June, 2023
1 OA No 202/232/2017
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
CIRCUIT SITTING AT GWALIOR
Original Application No.202/232/2017
Jabalpur this Wednesday the 28th day of June, 2023
HON'BLE MR. JUSTICE AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER
HON'BLE MR. KUMAR RAJESH CHANDRA, ADMINISTRATIVE MEMBER
1. Jitendra Kushwah, S/o Late Sri Ramesh Kushwah, Aged about 23 years,
R/o Jogiwa Mohalla, Antri Post antri Tehsil Bhitarwar, District Gwalior
(M.P.).
2. Smt. Balo Bai, W/o Late Sri Ramesh Kushwah, Aged about 23 years,
R/o Jogiwa Mohalla, Antri Post antri Tehsil Bhitarwar, District Gwalior
(M.P.).
-Applicants
(By Advocate - Shri D.P. Singh)
Versus
1. Union of India through its Secretary, Ministry of Railways, Government
of India, North Block New Delhi 110 001.
2. Central Railway, through its General Manager, Allahabad U.P. 211 013
3. The Divisional Railway Manager (Personnel), NCR, Jhansi, U.P. 284003.
4. The Divisional Personnel Officer, NCR, Jhansi U.P. 284 003.
5. The Secretary, Board of Secondary Education, Madhya Pradesh, Bhopal,
M.P. 462 001.
6. The District Education Officer, Gwalior, District Gwalior M.P. 474009.
-Respondents
(By Advocate - Sri Brij Mohan Patel and Sri A.K. Nirankari)
(Date of Reserving order 08.05.2023)
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ORDER
By Justice Akhil Kumar Srivastava Member (J) By means of this O.A., the applicants have challenged the order dated 9.10.2014 by means of which the order of appointment issued to the applicant no.1 on compassionate grounds has been ordered to be cancelled.
2. The facts, in brief, are that the father of the applicant no.1 and husband of applicant no.2 was under the employment of respondents. While he was working on the post of Gangman, he met with a train accident, with the result, he died on 2.3.2013 leaving behind widow (applicant no.2), two daughters and one son (applicant no.1). After sad demise of his father, the applicant no.1 preferred an application for appointment on compassionate ground and after considering the pathetic condition of deceased employee, the name of the applicant no.1 was recommended by the Committee for appointment on compassionate grounds. Thereafter, the applicant no.1 undergone for medical test wherein he has been declared successful. It is averred in the O.A. that after due verification of qualification testimonials as well as medical reports, the applicant no.1 was appointed on compassionate ground vide order dated 31.1.2014 under Group 'D' category as a Trainee. Pursuant to offer of Page 2 of 9 3 OA No 202/232/2017 appointment, the applicant no.1 submitted his joining and also joined his training. It is alleged in the O.A. that in the training, the applicant no.1 has orally refused to participate and orally refused to continue the training and thereafter the respondent no.4 has sent a letter to his mother (applicant no.2) with regard to validity of marks-sheet of Class VIII and cancelling the appointment issued in favour of applicant no.1. The order of cancellation of appointment has been issued to the applicant no.2 along with letter dated 31.7.2015.
2.1 The applicants also stated in the O.A. that with regard to report made in the order dated 9.10.2014 with regard to the letter written by District Education officer dated 13.8.2014, the applicant has obtained the Information under Right to Information Act, 2005 from the Head Master of Balak Vidya Mandir School, Gwalior, who has given the particulars wherein the name of the applicant no.1 was mentioned at sl. No.151, but the respondent no.4 has acted arbitrarily and without holding of any inquiry or affording of opportunity of hearing, passed an order of cancellation of appointment on the basis of letter sent by the District Education Officer, through the letter dated 13.8.2014 has not yet been communicated by cancelling the appointment of Page 3 of 9 4 OA No 202/232/2017 the applicant no.1 vide letter dated 9.10.2014, which is not in the name of applicant no.1. It is also pleaded in the O.A. that the services of the applicant no.1 have been terminated without following the principles of natural justice and also without conducting any inquiry in the matter and in a slipshod manner, the respondents have passed by the impugned order cancelling the appointment of applicant no.1. Hence, this O.A.
3. Per-contra, respondents have filed a detailed Reply wherein they have stated that the claim of applicant no.1 is based on false and fabricated document i.e. marks-sheet of Class VIII, which was found to be forged one after verification by the District Education Officer and as such no appointment can be granted on the basis of forged documents. The respondents have also stated that even if the applicant no.1 passed Class X, then also in such circumstances, acquiring higher qualification will not nullify the fraud or mischief committed by applicant no.1 because certainly applicant no.1 appeared in Class X examination on the basis of marks-sheet of Class VIII and the same mark-sheet is a fake document, so on the basis of fake document, if applicant no.1 appeared in class X examination, the same will not give any benefit to the applicant no.1. They further took the stand Page 4 of 9 5 OA No 202/232/2017 that since the application for appointment on compassionate ground was submitted by his mother (applicant no.2) and as such the order cancelling the appointment of applicant no.1 was sent to applicant no.2. 3.1 The respondents have also stated that the marks-sheet of Class VIII as submitted by the applicant no.1 has been forwarded to District Education officer for verification and after due verification, it comes out that the said marks-sheet is forged one. They have further stated that from the perusal of Annexure R-4 as annexed with the Reply, it is clear that there is no room of doubt has been left to hold that the marks-sheet as submitted by the applicant no.1 is a genuine document. They have also stated that the action of the respondents in cancelling the appointment of the applicant no.1 is a legal and valid one and as such no interference is called for by this Tribunal and O.A. is liable to be dismissed.
4. Reply on behalf of Respondent no.6 has also been filed wherein it has been stated that the marks-sheet of the applicant no.1 of class VIII was sent to District Education officer vide letter dated 16.9.2013 for verification as it was found to be forged. In compliance to the letter issued to them by DRM, issued a letter dated 5.12.2013 to Block Education Officer directing them to Page 5 of 9 6 OA No 202/232/2017 conduct an enquiry in regard to verification of the marks-sheet of the applicant no.1 and then furnish the enquiry report to the respondent no.6 in accordance with law. It has also been stated that in response to above letter, the enquiry report was then presented by the Block Education Officer to respondent no.6 vide letter dated 30.7.2014 stating therein that marks-sheet of Class VIII of the applicant is found to be forged. In the Enquiry report, the date of birth of the applicant has been shown as 8.12.1992, whereas the date of birth of the applicant has been mentioned as 8.12.1993 and thereafter the respondent no.6 issued a letter dated 13.8.2014 to the DRM informing them that 8th Class marks-sheet of the applicant no.1 has been found to be forged after verification. In furtherance thereof, order dated 9.10.2014 has been issued by the respondent no.4 cancelling the appointment of applicant no.1.
5. The applicants have filed Rejoinder to the Reply filed by the respondents denying the contentions of the respondents made in the Reply while reiterating the averments made in the Original Application and nothing new has been added.
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6. Learned counsel for the applicant has placed reliance on the following case laws in support of his claim:-
(i) Punjab State Electricity Board Vs. Leela Singh reported in (2007) 12 SCC 146.
(ii) Arvind Kumar Sahu Vs. State of M.P. & Others reported in 2002(3) MPHT 407.
(iii) Mahendra Kumar Chaurasiya Vs. State of M.P. & Others reported in 2002(3) MPLJ 112.
(iv) Usha Yadav S. State of M.P. & Others reported in 2002(3) MPLJ 85
(v) Dharmendra Sharma Vs. State of M.P. & Others decided by Hon'ble M.P. High Court at Gwalior in Writ Petition No. 2160 of 2015 decided on 9.7.2015.
6. We have heard the learned counsel for the parties and perused the pleadings available on record.
7. The question involved in this case is whether the termination of the applicant's service was proper. The charge against the applicant is that he has submitted a forged Class VIII marks-sheet in obtaining the appointment on compassionate ground. The said charge was required to be proved in a duly constituted departmental enquiry, which is lacking in the instant case. Further, once the applicant has been appointed, the right has been created in his favour and his appointment could be cancelled only after giving reasonable opportunity to the applicant, which, admittedly, in the instant case Page 7 of 9 8 OA No 202/232/2017 is missing. The Hon'ble Supreme Court in the case of Shravan Kumar Jha Vs. State of Bihar reported in AIR 1991 (1) SC 309 has held that cancellation of appointment without following the principles of natural justice is illegal. In the instant case also, the respondents have cancelled the appointment of the applicant without affording any opportunity of hearing to him in gross violation of the principles of natural justice. That being so, the order impugned cannot be sustained. The applicant who had a right to hold the post in view of appointment order and as such the same cannot be cancelled in such a manner without issuing any show cause notice and without conducting any inquiry.
8. We may also observe that it is the employer's prerogative to examine the genuineness and correctness of the documents as submitted by the employee. If there is serious doubts about genuineness of the documents, enquiry can very well be conducted, but no enquiry in any manner has been held by the respondents nor a copy thereof has been served upon the applicant no.1. In absence of the same, the impugned order cannot be said to be legal one. It is trite principle of law that it is an elementary of principles of natural justice that no person should be condemned without hearing. The order of Page 8 of 9 9 OA No 202/232/2017 appointment conferred a vested right to the applicant to hold the post, that right cannot be taken away without affording opportunity of hearing to him. Any order passed in violation of principles of natural justice is rendered void.
9. We have carefully perused the decisions as cited by the learned counsel for the applicant and the ratio laid down therein are squarely applicable in the instant case as well, and as such the order, impugned in the O.A. deserves to be quashed.
10. In the result, O.A. succeeds. Order dated 9.10.2014 is quashed. The respondents are directed to reinstate the applicant forthwith without any back wages on the principle of "No Work No Pay" along with all consequential benefits viz. seniority etc. However, it would be open to the respondents to take action in accordance with law. No costs.
(Kumar Rajesh Chandra) (Justice Akhil Kumar Srivastava)
Administrative Member Judicial Member
Girish/-
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