Allahabad High Court
Ravi Kumar Yadav vs Union Of India And 4 Others on 15 November, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 32 Case :- WRIT - A No. - 8534 of 2018 Petitioner :- Ravi Kumar Yadav Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Santosh Kumar Yadav,Siddharth Khare Counsel for Respondent :- A.S.G.I.,Om Prakash Srivastava,Ratan Agarwal,Vivek Ratan Agrawal Hon'ble Vikram D. Chauhan,J.
1. Heard Shri Siddharth Khare, learned counsel for the petitioner and Shri Vivek Ratan Agarwal, learned counsel for the respondents.
2. The present writ petition is preferred challenging the order dated 9.2.2018 passed by respondent no 4. Further prayer has been made in the writ petition for directing the respondent authorities to appoint the petitioner as the Single Window Operator-A/Clerk in the respondent department and to pay his regular monthly salary every month.
3. The Institute of Banking Personnel Selection notified a common recruitment process for recruitment in clerical grade for the 19 Banks including the respondent-Union Bank of India. The advertisement notified the time schedule under which 01.09.2014 was specified as the last date for online registration and 17.11.2014 as the date for downloading call letters for examination in December 2014. The result were to be declared in February 2015.
4. The petitioner in pursuance to the aforesaid advertisement submitted his application for participating in the above-mentioned recruitment process. Petitioner was issued admit card for appearing in the written examination scheduled to be held on 13.12.2014 in which petitioner was required to appear in the said examination at the examination centre being Dr. Rizvi College of Engineering, Kaushambi.
5. The petitioner participated in the online examination held on 13.12.2014. Result of aforesaid examination was declared by examining body being Institute of Banking Personnel Selection and petitioner was shown to have qualified written examination. Petitioner was also shortlisted for interview by Examining Body.
6. The petitioner participated in the interview and thereafter in final result, petitioner was shown to be selected under the OBC category for appointment in Union Bank of India. The copy of final result of the petitioner is annexed as annexure 5 to writ petition.
7. In pursuance to above-mentioned selection of petitioner, Assistant General Manager, Union Bank of India issued an offer of appointment to the petitioner on 25.04.2015. The candidates recruited for the State of Uttar Pradesh were required to report before the Field General Managers' Office at Lucknow on or before 30.05.2015. Petitioner reported at the Lucknow Office and completed all formalities.
8. On 28.12.2015 petitioner was issued a communication by the Assistant General Manager of respondent Bank to the effect that during the course of reporting of candidature of petitioner it was found that there existed variance in the signature of petitioner on different pages upon which specimen of handwriting and thumb impression was obtained from petitioner and same was forwarded to the handwriting expert for enquiry. Subsequent to the receipt of the communication dated 28.12.2015 by the petitioner there has been no communication to the petitioner and as such, petitioner preferred Writ Petition No.42948 of 2017.
9. The above-mentioned writ petition was finally disposed of by order dated 24.10.2017 while noticing the contention of counsel for the respondent bank that a fact-finding enquiry is being conducted by respondent bank in which opinion of handwriting expert has been called and bank has yet to take a final view in the matter. The aforesaid order dated 24.10.2017 further directed respondent bank to complete the enquiry within a period of two months after affording the petitioner adequate opportunity of hearing and after confronting the petitioner with the material considered adverse to him.
10. Respondents supplied the handwriting expert report along with documents on the basis of which, expert has expressed his opinion. On 08.01.2018 hearing in the enquiry proceedings/concluded and on 09.02.2018 an order has been passed by the respondent authorities rejecting the candidature of petitioner. It is order dated 9.2.2018 which is subject matter of challenge in the present writ petition.
11. It is submitted by learned counsel for petitioner that selection by Institute of Banking Personnel Selection was notified for common recruitment process for recruitment in Clerical Cadre for 19 Banks including Union Bank of India. The petitioner applied online for registration in the aforesaid examination and thereafter participated in the examination and the result was declared, in which petitioner was shown to have been successful. Petitioner was allotted appointment in the Clerical Cadre in Union Bank of India. The petitioner had duly reported to the respondent bank and completed all the formalities. When the appointment was not granted to the petitioner, petitioner approached this Court wherein learned counsel for the Bank informed this Court that a fact finding enquiry is being conducted by the Bank in which the opinion of handwriting expert has been called and the Bank is yet to take a final view in the matter. Considering the facts and submission of learned counsel for the Bank, the aforesaid writ petition being Writ-A No.42948 of 2017 (Ravi Kumar Yadav Vs. Union of India and 4 others) was disposed of with the direction to complete the enquiry within a period of two months from today after giving opportunity of hearing and also after confronting the petitioner with the material considered adverse to him.
12. It is further submitted that respondent-Bank did not found selection of petitioner to be fair and being suspicious, Bank referred signature of petitioner to the handwriting expert and handwriting expert has submitted report on 16.5.2017. According to opinion of handwriting expert, signature on call letter does not match with admitted signature and as such, Bank issued a show cause notice dated 6.10.2017 calling upon petitioner to show cause as to why candidature for appointment in the Bank should not be cancelled. Petitioner participated in enquiry proceedings and thereafter impugned order dated 9.2.2018 has been passed by the Assistant General Manager (HR), Competent Authority thereby holding that the identity of the petitioner could not be established as the person who has participated in the qualifying examination conducted by the Institute of Banking Personnel Selection.
13. Learned counsel for the petitioner while challenging the impugned order submits that the show cause notice dated 6.10.2017 was issued with finding that petitioner has resorted to impersonation while seeking employment in Bank. In aforesaid show cause notice, respondent bank has relied upon the handwriting expert report.
14. Learned counsel for the petitioner submits that once a finding has been recorded by the authority concerned that the petitioner has resorted to impersonation then issuing a show cause notice to petitioner was of no consequence as the authority concerned has already taken a decision against the petitioner and as such, filing of reply to show cause notice would have been a futile exercise. In this respect, petitioner has relied upon the judgments of the Apex Court in cases of Himachal Pradesh State Electricity Board Limited Vs. Mahesh Dahiya, (2017) 1 SCC 768 and M/s Bcits Pvt. Ltd. Vs. Purvanchal Vidhyut Vitran Nigam Ltd. and another, (2022) 0 Supreme (All) 747, to submit that the show cause notice itself was bad in law. On the aforesaid basis, learned counsel for petitioner submits that once the foundation of the enquiry proceedings are itself bad in law, subsequent orders are not tenable under law.
15. Learned counsel for the petitioner has further submitted that petitioner had provided thumb impression and the photograph while appearing in the examination and call letters also contained photograph of the petitioner and further when the petitioner participated in the qualifying examination, petitioner was identified by the examiner and thereafter, petitioner was permitted to participate in the examination proceedings. He submits that there was no compliant made by the Examining Body that the petitioner has resorted to impersonation. Qualifying examination was conducted by an independent body and the results were sent to various Banks. The examining body and persons, who were at the place of examination i.e. Invigilator or the Centre Superintendent has not been testified nor a report is submitted by examining body that petitioner has impersonated in recruitment process. It is further urged that claim of petitioner should not have been rejected on the ground of impersonation specifically when other mode of proving identity of petitioner as valid participants in the qualifying examination was available to the respondent Bank by way of photograph and thumb impression on the call letter and attendance sheet.
16. The next submission of learned counsel for the petitioner is that the handwriting expert report is the only an opinion and the same is a weak piece of evidence and as such, corroboration is always required so that it can be established that the person who has participated in the qualifying examination was a bonafide candidate. In this respect, learned counsel for the petitioner has relied upon the judgments passed by this Court in Writ-A No.15075 of 2010 (Sushil Kumar Gautam Vs. State of U.P. and others) decided on 22.8.2022, Union of India and others Vs. Devendra Kumar Chaudhary and others (2018) 0 Supreme (All) 961, Writ Petition No.2813 of 2017 (Ran Vijay Singh and others Vs. Union of India and others) decided on 16.4.2018, Special Appeal No.1045 of 2018 (Union of India and others Vs. Ran Vijay Singh and others) decided on 8.5.2019 and Writ -A No.56499 of 2011 (Rajesh Kumar Vs. Union of India and others) decided on 5.11.2014. Learned counsel for the petitioner further urged that there were other material available which could have established the identity of the petitioner as the person who participated in the recruitment process.
17. On the aforesaid basis, learned counsel for petitioner submits that impugned order has been passed solely on the basis of handwriting expert report without the handwriting expert being called for to participate in the enquiry proceedings nor an opportunity was given to petitioner to confront with the handwriting expert. On the aforesaid basis, learned counsel for the petitioner submits that the methodology adopted by the respondent in coming to the conclusion is not fair and in fact, identity could have been established by other modes and as such, respondents ought to have considered the identity of the petitioner on the basis of other modes of identification available and should have called upon the examining body to participate in the enquiry proceedings so that a fair conclusion could be drawn.
18. Learned counsel for the respondent-Bank submits that in the present case petitioner has impersonated himself in qualifying examination and thereafter has been selected and sent for appointment to the respondent-Bank by the examining body. However while examining the credentials of petitioner, it was found that signatures of petitioner on call letter and attendance sheet are different from the signature with the Bank and as such, matter was sent to Central Forensic Science Laboratory for handwriting examination. The Central Forensic Science Laboratory has submitted a report against petitioner and on the aforesaid basis, candidature of petitioner has been rejected, as he is not bonafide candidate.
19. On a pointed query being made to learned counsel for respondent-Bank whether the examining body was part of the enquiry proceedings, he fairly submits that the examining body was not a part of enquiry proceedings and the order has been passed on basis of handwriting expert report. He has further fairly stated that handwriting expert never participated in enquiry proceedings.
20. The selections at public employment more particularly in banking industry are required to be fair and of a sterling nature. Employment to persons who have impersonated in the recruitment process or selection proceedings would demolish the very sanctity of the recruitment process and institution itself and as such, it is necessary that persons who have been selected have clear credentials and have been fairly selected in recruitment process. This is not a mere matter of administrative procedure but constitutional obligation that public bodies have to act fairly and reasonably. A fair and reasonable process of selection to posts subject to the norm of equality of opportunity under Articles 14 and 16 is a constitutional requirement. A person who has resorted to unfair means in the recruitment process cannot be permitted to join the post.
21. The question with regard to a candidate having resorted to unfair means in recruitment process is to be examined by the appropriate authority. The examination in this respect is to be based on cogent and material evidence. The process of an enquiry should be just, fair and reasonable and principles of natural justice are required to be followed where an individual case is being examined by authority concerned.
22. In the present case, selection proceedings for clerical cadre were undertaken by various Bank through a common examining body being Institute of Banking Personnel Selection. The said examining body after completing the selection proceedings have forwarded the name of petitioner for appointment to the respondent-Union Bank of India.
23. The Union Bank of India doubted the credential of the petitioner on basis of signature being different in the call letter with the signature available with the Bank and as such, matter was referred to handwriting expert for examination. The handwriting expert by report dated 16.5.2017 has opined that the admitted signature do no match with the questioned signature no.1 (Q1). Questioned signature no.1 (Q1) were signature of petitioner on call letter. Other documents which were sent to the handwriting expert were not considered by handwriting expert as they were photocopy of original document and as such handwriting expert has not given any opinion on those documents.
24. The only document which form the foundation for handwriting expert to form an opinion against petitioner was call letter which is at page 92 of the writ petition where signature of petitioner is provided and aforesaid call letter is countersigned by Invigilator. A perusal of aforesaid call letter would further demonstrate that photograph and thumb impression of petitioner is also provided in the aforesaid call letter. Invigilator has further certified candidate's signature and left thumb impression as having been obtained in the presence of Invigilator. Invigilator has further verified the photograph of petitioner on call letter.
25. The aforesaid call letter further provided a condition in Clause 2 of the call letter that a photocopy of photo identity proof should be submitted along with call letter to Invigilator in the examination hall failing which the candidate will not be permitted to appear for the test. The aforesaid clause further provided that call letter along with the photocopy of the photo identity proof duly stapled together should be submitted to Invigilator in the examination hall. The aforesaid clause further provided that candidates should put left thumb impression clearly and sign in the respective space provided in call letter in the presence of the Invigilator.
26. Further, attendance sheet of examination held on 13.12.2014 has also been filed at page 93 of the writ petition, where the photograph and thumb impression apart from the signature of the petitioner is also available.
27. The respondents by impugned order while examining the suitability of the petitioner for appointment on the post in question has come to the conclusion that it could not be established that the person who has signed the online examination call letter only appeared in the interview and further reported at FGMO, Lucknow for document verification upon his selection for the post.
28. The respondent authority while passing the impugned order has proceeded to rely upon the handwriting expert report and has recorded a finding that the signatures on the call letter for online examination submitted before the examining body are different from all other signatures and other documents. The authority who has passed the impugned order in fact has proceeded to compare the signatures to decide that the signatures of petitioner on call letter differ from the signature on other document. The authority concerned has further recorded a finding that the petitioner has not submitted any documentary evidence to corroborate the claim with regard to identity and presence at the time of examination.
29. It is to be noted that examination was conducted by a examining body which is an independent authority. It is not a case of respondent-Bank that any case of any impersonation has been reported by aforesaid examining body to the Bank. It is only the Bank at the time of issuing the appointment letter that the credentials of the petitioner were verified and on the failure of the matching of the signatures, the present impugned order has been passed.
30. A perusal of the call letter and attendance sheet of examination filed along with writ petition goes to show that it contains signature, photograph and thumb impression of candidate. It is not in dispute between parties that photograph, thumb impression and signature of the candidate are the means by which the identity of a candidate at examination can be ascertained.
31. In the present case, while passing impugned order, respondent's have relied upon a handwriting expert report to ascertain whether petitioner has participated in recruitment process and is a bonafide candidate. The handwriting expert report has indicated that signature on the call letter does not match with the admitted signature. The report of a handwriting expert is an opinion. The opinion is based on the documents produced before the handwriting expert for examination. The art of handwriting recognition is not a perfected proposition. The Apex Court in Murari Lal Vs State of Madhya Pradesh AIR 1980 SC 531 has observed as under:
"But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses - the equality of credibility or incredibility being one which an expert shares with all other witnesses -, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non-existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty 'is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence".
32. The opinion of the handwriting expert cannot be said to be a conclusive evidence specifically when the handwriting expert has not been produced in enquiry proceedings. The candidate against whom the allegation of impersonation have been levelled by the employer has a right to confront the handwriting expert. In the garb of providing an opportunity to the candidate, the opinion of handwriting expert cannot be acted upon without there being corroboration of the same.
33. A Division Bench of this Court in Union of India Vs. Devendra Kumar Chaudhary and others (2018) 0 Supreme (All) 961 has observed as under :-
"63. The next question would be, "whether report of Forensic Expert could have been treated to be a conclusive evidence to hold applicant-respondent guilty of impersonation justifying punishment of removal."
64. The authority of SSC to seek opinion from Forensic Expert in respect of handwriting and competence of Forensic Expert to submit its report or opinion cannot be doubted, but when aforesaid opinion or material is relied on as an evidence in a disciplinary proceeding against a Government servant, he is entitled to cross examine Author of said opinion since it is only a piece of evidence expressing opinion of such Expert in a process where Government servant was not a party and, therefore, he is entitled to examine Author of such opinion, otherwise ex-parte report submitted by Forensic Expert cannot be a valid piece of evidence to be relied in a departmental inquiry.
65. When a document is relied, may be an opinion of an Expert, it only means that such an Expert has given such opinion but about correctness of the opinion, unless Author is allowed to be examined by person against whom such opinion has been expressed, and thereafter such person is permitted to lead his own evidence in defence to contradict the opinion of Forensic Expert, it cannot be said that a valid piece of evidence has been considered in departmental inquiry. In a departmental inquiry mere production of a document cannot be treated to be a conclusive evidence to prove the fact mentioned in the said document by treating the facts stated therein, true, unless Author of such document owns it in a quasi judicial inquiry proceedings and allowed to be cross examined by affected party. We are fortified in taking this view by Apex Court's judgment in M/s Bareilly Electricity Supply Co. Ltd., Vs. The Workmen and others, AIR 1972 SC 330 where Court in para 14 of judgment has observed:
"But the application of principle of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal the question that naturally arises is, is it a genuine document, what are its contents and are the statements contained therein true. When the Appellant produced the balance-sheet and profit and loss account of the Company, it does not by its mere production amount to a proof of it or of the truth of the entries therein. If these entries are challenged the Appellant must prove each of such entries by producing the books and speaking from the entries made therein. If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order XIX Civil Procedure Code and the Evidence Act both of which incorporate these general principles. Even if all technicalities of the Evidence Act are not strictly applicable except in so far as Section 11 of the Industrial Disputes Act, 1947 and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witness who have executed them, if they are alive and can be produced. Again if a party wants an inspection, it is incumbent on the Tribunal to give inspection in so far as that is relevant to the enquiry. The applicability of these principles are well recognised and admit of no doubt."
34. The opinion of a handwriting expert is an opinion evidence and cannot take place of substantive evidence. Before acting upon the opinion of handwriting expert one must seek corroboration either by direct evidence or other material. The opinion of handwriting expert is a weak evidence regarding proof of handwriting or signature. The evidence regarding handwriting can be arranged in the following order on the strength of reliability :
a) Author himself stating that it is in his handwriting or signature.
b) Person who has seen author doing particular writing or signature stating that particular person has scribed document or signature.
c) Persons who is acquainted with handwriting of purported author.
d) Expert opinion of handwriting expert opinion.
35. The handwriting expert opinion must always be received with great caution specifically in a case when there is no substantial corroboration. The opinion of handwriting expert is an evidence of opinion and not of fact. The handwriting expert opinion only provides criteria for reaching the correct conclusion but his opinion requires to be appreciated like any other evidence on record. The report of the handwriting expert cannot be presumed to be conclusive. The handwriting expert opinion is fallible or liable to errors like any other witness.
36. The report of handwriting expert is of a advisory character. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor for consideration along with other material that may be available in a given case. The report given by handwriting expert does not go in evidence automatically.
37. The petitioner's identity as to whether he has participated in the examination conducted by the examining body can be identified by other modes: photograph of the petitioner available on the call letter, which is not disputed by the respondent Bank. Further identity of petitioner can also be identified by thumb impression given by petitioner in attendance sheet which is also a material evidence, which may indicate towards the presence of petitioner in examination proceedings. In present case, respondents have not obtained any report with regard to thumb impression on call letter and attendance sheet. The identity of the petitioner could have been verified and corroborated through verification of thumb impression on call letter and attendance sheet.
38. It is also to be noted that call letter and attendance sheet also contained the photograph of petitioner. The handwriting expert has only given report with respect to one document (Q1) despite the fact that the signatures at eight places were sent for his opinion on various documents. Handwriting expert has refused to express any opinion on Q2 to Q8 documents which contain signature of petitioner on the ground that the aforesaid documents were reproduction copy and not the original documents.
39. In the present case, the recruitment process was carried on by an independent agency being Institute of Banking Personnel Selection. The aforesaid independent examining body has forwarded the name of petitioner to respondent bank after completion of recruitment process. It is not the case of respondent bank that independent examining body has reported any impersonation at the behest of petitioner in the examination/selection process. Petitioner is a selected candidate who is said to have passed the selection process conducted by an independent examining body.
40. Once the selection process was carried on by an independent body then there cannot be any presumption that all staff/employees of the examining body had failed to correctly identify the petitioner. It is not in dispute between the parties that the examination was held at an examination centre appointed by the examining body. It is also not in dispute between the parties that the examination was held at the examination centre under the strict vigilance of the Invigilators.
41. It is to be noted that the Invigilator and Centre Superintendent has never reported the fact that petitioner has not participated in the examination proceedings or he has resorted to any means whereby he is not bonafide candidate. When such a report has not been given by the examining body then while questioning the process of examining body with regard to identification of candidate as a person who has not participated in the examination, it was incumbent on the respondent Bank to have included the examining body, Invigilator and other persons, who participated in the examination, to join the enquiry proceedings.
42. A bare perusal of the call letter annexed at page 92 of writ petition would demonstrate that candidate was required to sign the call letter in the presence of the Invigilator at the time of examination. Further as per call letter, thumb impression of the candidate is required to be affixed in the presence of Invigilator at the time of examination. The said call letter further provided that candidate's signature and left thumb impression is to be certified to have been obtained in presence of Invigilator. The call letter further provides that photographs are required to be verified by the Invigilator. It is not in dispute between parties that the Invigilator has put in his signature on the call letter and as such, as per the condition of call letter he has certified the thumb impression, signature as being endorsed in his presence. The aforesaid letter has further verified the photograph of the petitioner on call letter.
43. The call letter further contain a stipulation that the photocopy of photo identity proof should be submitted along with the call letter to the Invigilator in the examination hall. The Clause 2 of the call letter is quoted hereinbelow :-
"2. The photocopy of the photo identity proof should be submitted along with the call letter to the Invigilators in the examination hall failing which he/she will not be permitted to appear for the test. The call letter along with the photocopy of photo identity proof duly stapled together should be submitted to the Invigilator in the examination hall failing which the candidate will not be permitted to appear for the test. Do not forget to write your Registration No. and Roll No. on the photo copy of Photo Identity proof. Candidates should put their Left Thumb Impression clearly and sign in the respective space provided on the call letter in the presence of the Invigilator."
44. It is not the case of respondent Bank that the examining body or the Invigilator at the examination hall has reported any discrepancy with regard to candidature of petitioner or his identity at the examination centre. Various other material were available for deciding the identity of the petitioner in the examination process. The handwriting expert who has submitted the report has not participated in the enquiry proceedings conducted by the respondent Bank nor any opportunity was granted to the petitioner to cross-examine the handwriting expert. The other means available to the respondents for identification of the petitioner like the thumb impression of the petitioner on the various documents and the photograph of the petitioner on call letter and attendance sheet were neither examined by the respondents nor any finding has been recorded.
45. The examination in question was conducted by an independent examining body and no report was called from the aforesaid independent examining body nor the aforesaid independent examining body was asked to join the enquiry proceedings. The bonafide of the petitioner could have been established by the Invigilators who were present at the time of examination and who have identified the signature, thumb impression and photograph of the petitioner. All the materials which goes to prove the identity of petitioner should have been taken into consideration by the respondents while passing the impugned order.
46. The identification of the petitioner in present case can also be made from the photograph and thumb impression. The report of handwriting expert is only an opinion which even if accepted by the Bank is a weak piece of evidence and should have been corroborated by holding a detailed enquiry proceedings, where the officers of the examining body should have also been permitted to participate and petitioner should have been permitted to confront the handwriting expert and other persons, who were involved in the examination.
47. Insofar as issuance of show cause notice to the petitioner is concerned, petitioner at that point of time never challenged the show cause notice but he participated in the proceedings and after participation when the result of the enquiry is against the petitioner, he has turned around and has now challenged the show cause notice on the ground that the show cause notice itself contained a finding that the petitioner has resorted to impersonation while seeking employment. The petitioner ought to have challenged the show cause notice at that very point of time. The challenge to the aforesaid show cause notice subsequently when the order is passed against the petitioner specifically when no such allegation was raised against the enquiry officer during pendency of the enquiry proceedings will not help the petitioner. The petitioner during enquiry proceedings has not raised any doubt with regard to any bias in enquiry proceedings as a result of show cause notice. The show cause notice only gave a prime facie view of the authority. After the issuance of show cause notice to the petitioner an enquiry proceedings have been held in which the petitioner has participated without any objection. Once an order has been passed by the authority concerned, the petitioner cannot challenge the show cause notice on the ground of bias as the petitioner was required to raise the objection at the earliest opportunity.
48. The identity of the petitioner is required to be established so that the examination is fair and free. The presumption that the examination was fair and free is in favour of the petitioner as the examining body has never recorded any finding against the petitioner. It is for the Bank to bring the material and cogent evidence against the petitioner to establish that the petitioner has never participated in the examination and such a procedure can only be permitted when the officer of the examining body, who were participated in the examination and the handwriting expert and other expert, everybody is permitted to participate in the proceedings. The Bank is required to examine the participation of the petitioner in the examination process by verifying all the modes and material available for validation of the petitioner's presence at the examination centre as discussed herein above. The respondents by doubting the candidature of the petitioner is in fact challenging the examination process and the verification conducted by Invigilators and examining body during examination process with regard to presence of the petitioner at the time of examination. Once the examining body has not reported any fault in the examination process and has cleared the candidate for selection then doubting the presence of the petitioner at the time of examination would require the examining body to be part of the enquiry process and to further examine the various identification process established by the examining body at the time of examination. In the present case, no such procedure has been followed by the respondent Bank and the Bank has not proceeded in accordance with law.
49. Since the impugned order is not tenable under law and further the petitioner has raised doubts on the respondent No.4, both the counsel for the petitioner as well as respondent Bank agrees that the matter may be sent back to the higher authority than person who has issued a show cause notice. Learned counsel for the respondent-Bank submits that the higher authority is General Manager of Union Bank of India and as such, the matter may be referred to the General Manager for decision afresh.
50. Under the circumstances, impugned order dated 9.2.2018 passed by respondent No.4-Assistant General Managaer (HR), Competent Authority, is set aside and the matter is remanded back to the Higher Authority i.e General Manager of the Bank/respondent No.3 than the Authority, who has issued a show cause notice.
51. Liberty is granted to the respondent-Bank to proceed afresh against the petitioner in accordance with law and as per the observation made in the order.
52. The writ petition is, accordingly, allowed.
Order Date :- 15.11.2022 D. Tamang