Central Administrative Tribunal - Delhi
Vijay Kumar vs Union Of India Through on 18 March, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.1816/2012 M.A. No.1506/2012 Reserved on: 24.01.2013 Pronounced on:18.03.2013 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MRS. MANJULIKA GAUTAM, MEMBER (A) Vijay Kumar S/o Shri Ramyad Prasad R/o G-2/42, Gali No.15, Sai Enclave, Mohan Garden, Uttam Nagar, New Delhi-110059. ..Applicant (By Advocate: Shri A.S.N. Murti) Versus 1. Union of India Through: Chief Postmaster General, (Delhi Circle) Department of Posts, Meghdoot Bhavan, Link Road, New Delh-110 001. 2. Senior Superintendent of Post Offices, New Delhi West Division, Naraina, New Delhi-110028. ..Respondents (By Advocate: Shri Satish Kumar) O R D E R
Shri G. George Paracken:
According to the Applicant he belongs to Kharia caste Scheduled Tribe (ST for short) and was appointed in the Indian Postal and Telecom Department as an ST reserved candidate on 01.01.1981. After passing the departmental examination held on 08.07.1990, he was promoted as Postman with effect from 29.09.1990. While working in the said capacity, he was suspended from service on 10.02.2007 on the allegation that he joined Government service by submitting forged Caste Certificate. However, later on his suspension was revoked and he rejoined his duties as Postman. However, the Central Bureau of Investigation (CBI for short) began an enquiry in the matter. According to them, the District Magistrate, Saran, Bihar vide his letter dated 22.12.2005 informed them that no ST certificate was issued by them to the Applicant. Thereafter, the Respondents, vide their Memo dated 17.07.2008 charge- sheeted him under Rule 14 of the CCS (CCA) Rules, 1965 as under:-
Article of charge No.1 Shri Vijay Kumar S/o Shri Ramyad Prasad Postman D.K. PO, New Delhi-59 was initially appointed as Packer (Group-D) as an S/T community candidate with effect from 01.04.1981. Off late it has come to the notice of the Department that the caste certificate submitted by the official was fake.
It is thus alleged that the said Shri Vijay Kumar managed to get his appointment by submitting a fake caste certificate and thus he has shown doubtful integrity and has acted in a manner of unbecoming of a Government servant thereby violating the provision contained in Rule 3 (1)(i) & (iii) of CCS (Conduct) Rules, 1964.
The statement of imputation of misconduct or misbehaviour in support of the aforesaid Article of Charge was as under:-
Shri Vijay Kumar S/o Shri Ramyad R/o Village Madho Pur Post and Police Station Jalal Pur Bazar District Sarant (Chapra) Bihar was appointed as Packer (Group-D) as an S/T community candidate with effect from 01.04.1981 vide ASPOs New Delhi West 2nd Sub Division, N.D. Estate New Delhi-28 memo No.B-4/Apptt./80-81 dated 22.04.1981. The appointment was given to him on the basis of caste certificate submitted by him, which was issued on 26.08.1978 by District Magistrate Saran wherein he was shown belonging to KHARIYA community, which is recognized as a Scheduled Tribe. The original caste certificate in question was returned to the said Shri Vijay Kumar on 23.09.1981 at his own request. On the basis of the said certificate said Shri Vijay Kumar was promoted as Postman against the vacancy reserved for S/T community candidate as per Departmental Examination held on 08-07-1990 (Result declared on 19.07.1990). He was allotted to ASP 2nd Sub for appointment as Postman vide SSPOs, New Delhi West Division, New Delhi-28 memo no,.B-3/PostmanExam/90 dated 07-08-1990 and he was appointed as postman as an S/T Community Candidate w.e.f. 29/09/1990 F/N vide ASPO New Delhi 2nd Sub ND-28 Memo No.B3/Apptt/90-91 dated 22.10.1990.
Off late it has come to the notice of the Department vide ADM Saran (Chapra)letter No. 105 dated 19.01.2007 & SSPOs, Saran Division Chapra DO No.B6/Misc/Ch.II dated 07.02.2007 in reference of self contained note of DIG Police CBI SCR-II New delhi vide his letter no.225/3/II(5)/2005/SCU-V/SCR-II dated 03.05.2006, copy received vide APMG (V&I) Delhi Circle letter no.VIG/Misc-28/2006 dated 05.06.06 that the caste certificate in question was fake one.
It is thus alleged that the said Shri Vijay Kumar Postman managed to get his appointment by submitting a fake caste certificate and by doing so, he is also alleged to have shown doubtful integrity and acted in a manner of unbecoming of a Government servant in contravention of provision contained in Rule 3 (1)(i) & (iii) of CCS (Conduct) Rules, 1964.
Along with the aforesaid Memo, the Disciplinary Authority has also given him the following list of documents and witnesses by which the charges framed against him was proposed to be sustained:-
List of documents:
1. Photocopy of the Caste Certificate.
2. Written application/request of Shri Vijay Kumar Postman dated 23.9.1981.
3. Copy of this office memo no.B-3/Postman Exam/90 dated 07.08.1990.
4. Copy of ASP, Division-II, New Delhi-28 memo no.B-4/Apptt./80-81 dated 22.01.1981.
5. Copy of ASP New Delhi West 2nd Sub Dn, ND-28 Memo No.B-3/Apptt./90-91 dated 22.10.1990.
6. Copy of ADM Saran Chapra letter No.105 dated 29.01.07.
7. SSPOs Saran Division Chapra DO No.B6/Misc./Ch.II dated 07.02.2007.
8. DIG CBI SCR-II New Delhi letter no.225/3/II (5)/2005/SCU-V/SCR-II dated 03.05.2006
9. Supdt. Of Police CBI/SCR-II/New Delhi Letter No.3308/3/11/S/2005/SCR-II/CBI/New Delhi dated 30.06.2006.
10. APMG (VIG) Delhi Circle letter no.VIG/Misc-28/2006 dated 05.06.2006.
List of witnesses:
1. Shri Hari Om Sharma, ASP 2nd Sub Dn. N-28.
2. Kishori Lal, D. Asstt. B-III D/Office ND-28.
3. Sanjay Sehgal Inspector CB-I/SCRII/New Delhi-28.
4. Shri T.K. Mishra, SSP Saran Dn., Chapra-811301.
2. After holding a departmental enquiry in the matter, the Senior Superintendent of Post Offices furnished a copy of the enquiry report dated 18.04.2009 to the Applicant. According to the said report, the charges levelled against the Applicant stood proved. The relevant part of the said report is as under:-
Enquiry Findings:-
The SW-III confirmed the SD VIII & SD IX along with letter dated 22.12.2005 of DM, Saran and deposed that he had conducted the inquiry into the case and only upon the written confirmation of the office of the D.M. Saran vide letter No. 608 dated 22.12.2005 of D.M. Saran, had reported the matter in his Self Contained note. The SW IV in his deposition confirmed the SD-VI & SD VII. According to the SD VI issued by the Upper Samahartha, O/o Zila Kalyan Karyalaya, Saran Samaharanalya, Chopra, the population of the Kharia community in the Saran Distt. Is zero and the caste certificate in the name of Shri Vijay Kumar S/o Shri Ramyad Prasad, Vill Madhopur PO thana Jalalpur, Distt-Saran has not been issued from their Office. This fact was also mentioned in the letter No. 608 dated 22.12.2005 of that office, which is an enclosed document of the SD IX.
The C.O. in his defence tried to prove that the C.O. belongs to the Kharia Community and is actually residing in the Chapra Distt., Saran, Bihar. However, the prosecution charged the C.O. for managing to get his appointment by submitting a fake caste certificate.
From the deposition of the SW III and SW IV and the SD VI, SD VII, SD VIII and SD IX, it is evident that the Caste Certificate dated 26.08.78 issued in the name of C.O., had not been issued from the office of the Distt. Welfare Officer, Saran, Chapra, which is the competent office to issue the Caster Certificate. Thus it is proved that the Caste Certificate dated 26.08.78 issued in the name of C.O. and submitted by him at the time of joining of duty is fake.
On the basis of witnesses and documents produced during the course of inquiry, the charges leveled against Shri Vijay Kumar, Postman, D.K. Post Office, New Delhi 110059 stand PROVED.
3. The Disciplinary Authority after considering the aforesaid report of the Inquiry Officer, vide its order dated 10.11.2009, imposed upon the Applicant the punishment of dismissal from service. The relevant part of the said order is as under:-
The IO submitted his enquiry report vide his memo No.MK/Rule-14/Vijay Kumar dated 18.4.2009 wherein he has given in the findings on the basis of the written confirmation/deposition of Shri Sanjay Sehgal, Inspector from CBI vide his letter No.608 dated 22.12.2005 issued form the O/o District Magistrate Saran confirming the facts that the population of Kharia community in the Saran District is Zero. He has also confirmed the contents of the letter dated 22.12.2005 issued from the office of the District Magistrate Chapra (Saran) Bihar. He has further clarified that although the DM of Saran can also sign & issue the caste certificate but the DM, Saran has delegated his Power to District Welfare Officer to issue the Caste Certificate on his behalf. Also the contents of letter No.225/3/11(S) 2005-SCU-V/SCR-II dated 3.5.2006 issued by the Dy. Inspector General of Police CBI, Special Crime Region-II ND-110003 were also got confirmed by the deputed Inspector. In the self contained note issued by the O/o Dy. Inspector General of CBI, Special Crime branch it has been pointed out that verification was made with the O/o District Magistrate, Saran Bihar about caste certificate in the name of Shri Vijay Kumar. As per enquiry it was concluded that Kharia community does not exist in the District of Saran, Bihar and that no such certificate was issued by the O/o District Magistrate, Saran, Bihar to Vijay Kumar. Thus, the certificate in the name of Shri Vijay Kumar is Bogus and Forged.
From the deposition of Sr. Supdt. Of Post Offices Saran Division, Chapra it was confirmed on the basis of verification report done from the Upper Samahratha (Additional Collector) Saran, Chapra vide his report/letter No.105 dated 29.01.2007 have reported the fact that the population of the Kharia caste in the District of Saran is Zero and the certificate has not been issued by his office in favour of the Charged Official.
Vide this office memo of even no. dated 17.6.2009 opportunity was given to the said Shri Vijay Kumar to make representation on enquiry report which supplied to him. In turn he submitted representation received in this office on 18.08.2009.
I have gone through the Inquiry report/defence representation and concerned paras thoroughly. As the Inquiry Officer clearly stated in his Inquiry Findings that on the basis of witnesses and documents produced during the course of inquiry the charges levelled against Shri Vijay Kumar, Postman, D.K. Post Office ND-59 stands PROVED.
I agree by the opinion/findings of Inquiry Officer & observed that being the involvement/have the facts reported by Central Bureau of Investigation/reliable govt. agency there is no room for any doubt except to take appropriate decision in this case as prescribed under Rule 11 (12) of CCS (CCA) Rules mentioning therein if the charges are proved, the Govt. servant should be removed or Dismissed from the Service. Keeping in view the above facts, I DINESH KUMAR SSPOS ND WEST DIVISON ND-110028 ORDERS THAT MR. VIJAY KUMAR POSTMAN D.K. POST OFFICE IS DISMISSED FROM THE SERVICE AS APPOINTED ON THE BASIS OF FAKE CERTIFICATE WHCH IS BOGUS AND FORGED.
4. The Appellate Authority has also, after considering the appeal of the applicant, confirmed the penalty awarded by the Disciplinary Authority. The relevant part of the Appellate Authoritys order is also reproduced as under:-
Now the official has submitted appeal inter-alia on following grounds:-
(i) that reliance placed by the Disciplinary Authority on the statement of DM that KHARIYA community did not exist in District Saran (Bihar), is contradictory to census report of India since 1931 to 2001.
(ii) that District Magistrate has not been summoned for examination.
(iii) that action of Disciplinary Authority of initiation of action against him after two decades of his appointment is highly objectionable.
(iv) that IO and Disciplinary Authority have placed reliance to the statement on District Magistrate without giving him opportunity to cross examine the witness which is against the Spirit of Rule 14 (14 of CCS (CCA) Rules, 1965.
Further the appellant also apprised about the decision dated 21.04.2010 of Patna High Court in CWJC No.12334/2009 vide his letter dated NIL, received in this office on 16.06.2010.
I have gone through the whole case written records of enquiry vis-`-vis pleas taken by the appellant. The plea that Disciplinary Authority has placed reliance on the statement of ASDM is wrong. It is not the statement but letter No.05 dated 29.01.2002 (SD-6) from ADM, Saran, Chhapra, which is documentary evidence. The said letter was taken on records on the testimony of Shri Vijay Kumar, SW-4, who deposed that he got SD-6 verified from the Additional Collector, who replied that the population of KHARIYA caste in District Saran was Zero and that no certificate has been signed issued in favour of the CO. Further charges are also substantiated by the letter dated 30.06.2006, SD-9 and letter dated 3.5.2006 (SD-8), which were taken on the testimony of SW-III.
The judgment of Patna High Court is also not applicable, as it give liberty to the Govt. to take action after getting the genuineness verified in individual cases, which has been done in the present case. Hence, I confirm the penalty awarded to the SSPOs New Delhi, West Dn.
The appeal is disposed off accordingly.
5. The Review Petition filed by the Appellant under Rule 29 of CCS (CCA) Rules, 1965 against the orders of the Disciplinary Authority and the Appellate Authority was also dismissed vide order dated 12.07.2011. The operative part of the said order reads as under:-
The Disciplinary Authority after going through the charges levelled, inquiry report and other relevant records awarded the penalty of Dismissal from service vide SSPOs ND West Division Memo No.F-Disc/17/2007-08 dated 10.11.2009.
The petitioner preferred an Appeal, whereby the penalty imposed was upheld vide Appellate Order No.Staff/H-I/09/P/2010 dated 28.07.2010.
The petitioner has cited interalia the following grounds in his petition:
1. That the petitioner has been appointed as packer on 02.04.1981 after completion of all required formalities and submission of his original documents, and, after a lapse of more than 26 years, all of a sudden, it was alleged that he had secured employment on the basis of a fake ST certificate.
2. That for 26 long years, the Department could not get his certificates verified, neither at the time of initial appointment or during probation, nor at the time of promotion.
3. That the original copy of ST certificate had been ignored/deliberately suppressed or concealed and has not been examined till date and therefore the findings of the disciplinary committee cannot sustain.
4. That the petitioner is a candidate whose Scheduled Tribe has been descheduled since his initial appointment and he could not have been granted promotion, whereas, he had been promoted as postman w.e.f. 29.09.90.
5. That the Khariya or Nonia tribe are one and the same and the disciplinary committee ought to have sought clarification on the name Nonia which is backward caste.
6. That both the disciplinary authority and the appellate authorities have failed to consider the history and evolution of caste of the petitioner.
7. That the Appellate Authority failed to consider that no one appeared on behalf of District Magistrate/Additional District Magistrate in the enquiry held, and, the District Magistrate, Saran, Bihar did not produce the relevant documents, i.e., photocopy of serial number of the register comparing the serial number of the cast certificate of the petitioner.
I have gone through the facts of the case. The core point of the case is that the, cast certificate on the basis of which employment was sought by the petitioner, has been reported as not issued by the competent authority. The authority issuing the caste certificate, i.e., District Magistrate, Saran, Bihar has clearly stated that no such certificate has been issued by their office. As per facts on record, the certificate submitted having been established as fake, the petition is rejected.
6. The applicant has challenged the aforesaid impugned enquiry report and the orders of the Disciplinary, Appellate and Review Authorities on various grounds. According to him, when he was initially appointed as a Packer and subsequently promoted as Postman, the respondents have got duly verified his character and antecedents from the concerned authorities in the State of Bihar. He had also submitted all the documents including the original ST certificate and Attestation Form in which he has mentioned his caste as Kharia in accordance with the Central Government instructions but nothing was found adverse against him on both the occasions. Further, according to the applicant, he was dismissed on the basis of a letter dated 22.12.2005 of the DM, Saran, Bihar which has never been a listed document with the said charge nor the said document was produced during the enquiry. It was not even given to him at any point of time during the course of enquiry. Since the said letter allegedly received from the SP, CBI, New Delhi from DM, Saran indicating that no ST certificate was issued by them to the Applicant and based upon which the CBI has informed the respondents on 20.06.2006, is a very vital document required by the Applicant to defend his charge against him. The non-supply of the said document was a failure on the part of the respondents which tantamounts to denial of reasonable opportunity to him and thus the entire proceedings have been vitiated. He has further stated that Shri T.K. Mishra, SSP, Saran Division (SW-IV) in his cross examination by the Applicant on 15.11.2008, categorically stated that he had not personally contacted the author of the letter dated 29.01.2007, i.e., the ADM, Saran but he had only confirmed the report of the ADM (Upar Samaharth) Saran dated 29.01.2007. Relying upon the report of PRI (P) through which he got the caste certificate furnished, the contention of the Applicant is that the respondents ought to have produced the PRI (P) working under SW-IV Shri T.K. Mishra, SSP, Saran Division as a State Witness but the respondents deliberately did not produce him even though he was a crucial witness in the enquiry. He is thus deprived of the opportunity to cross examine the PRI (P). According the Applicant, if the PRI (P) was produced as a State Witness, at least the following information would have been elicited from him:-
(i) the date on which the PRI (P) visited the DMs Office;
(2) the nature/contents of the letter he was given by SW-IV authorizing him to get the verification of caste certificate done from the DMs Saran Office;
(3) information with regard to the name or designation of the person whom the PRI (P) has met in the DMs office;
(4) whether the PRI (P) had personally seen or was shown the relevant register(s) containing the details with regard to issue of Caste Certificates by DMs Office in respect of ST community members;
(5) whether the PRI (P) had taken a photo copy of the Original Caste Certificate that was shown to the applicant on 02.05.2008 along with other listed documents in Annexure-III to the charge sheet (please see Daily Order Sheet dated 02.05.2008 placed at Annexure 11 to the OA) or had taken some other photo copy not tallying with the original or has not taken any such photo-copy of the document at all; and (6) if he had taken a photo-copy of the alleged fake caste certificate why a copy of the same was not produced before the enquiry.
7. The Applicant has also contended that the respondents failed to make available the listed documents at Sl.No.1 and 2. They have also refused to make available the documents at Sl.No.4 out of the 6 documents sought by him on 15.5.2008. He has also relied upon the order sheets of the Inquiry Officer dated 15.05.2008, 30.06.2007, 12.07.2008, 18.07.2008, 26.07.2008 and 26.08.2008 to prove that the respondents have not supplied the documents at Sl.No.4 without any cogent reasons. According to him, denial of the relevant documents is against the principles of natural justice as held by the Apex Court in the case of State of M.P. Vs. Chintaman Sadisiv Waishampayan AIR 1961 SC 1623 wherein it has been held as under:-
Where the charge sheeted officer was not supplied with copies of relevant documents to which he is entitled, that effective exercise of the right to cross examine the witness was denied by the enquiry officer.
He has also relied upon the judgment of the Apex Court in the case of Trilok Nath Vs. U.O.I. SLR (SC) 759 wherein it has been held as under:-
the public servant so requires for his defence he has to be furnished with copies of all the relevant documents, i.e., Documents sought to be relied upon by the IO or required by the public servant for his defence. The rationale for making available the documents required by the delinquent officer is that it is indispensable for putting forward effectively his defence. Failure to supply these materials would tantamount to denial of reasonable opportunity to the applicant to defend himself and vitiates the entire proceedings.
8. The learned counsel for the Applicant has also submitted that the Disciplinary Authority, in violation of the Constitutional provisions of Article 311 (2) and in violation of the law laid down by the Apex Court in the case of State of Mysore Vs. K. Manche Gowda 1964 (4) SCR 540 and the Constitution Bench judgment of the Apex Court in Managing Director, ECIL, Hyderabad and Others Vs. B. Karaunakar and Others 1993 (4) SCC 727 failed to supply a copy of the enquiry report before imposing the penalty of dismissal on the applicant and thus failed to provide a reasonable opportunity to challenge the enquiry report. In this regard he has also referred to the judgment of the Apex Court in the case of State of Karnataka Vs. V.B. Hiregowder 1996 (10) SCC 505 wherein it has been held that non-furnishing of copy of the enquiry report to the delinquent employee would render the final order void, if the penalty has been imposed after 20.11.1990, i.e., the date of decision in Ramzan Khans case. In this regard he has relied upon the following part of the Apex Courts judgment in Managing Director, ECIL, Hyderabad & Others (supra):-
that the enquiry does not conclude with the enquiry report and concludes only after the material is considered by the Disciplinary Authority, which includes the Inquiry Officers report and findings on the charges. The enquiry continues until the matter is reserved for recording a finding on the charges and the penalty that may be imposed. Any finding of the Disciplinary Authority on the basis of the enquiry officers report which is not furnished to the charged officer would, therefore, be without affording a reasonable opportunity in this behalf to the charged officer. It, therefore, follows that furnishing a copy of the enquiry report to the charged officer is obligatory.
In this regard, he has relied upon the Apex Court judgment in the case of U.O.I. Vs. Tulsiram Patel 1985 AIR SC 1416 wherein it has been held as under:-
Article 311 is subject to Article 14 Principles of natural justice and the audi alteram partem rule are part of Article 14 and, therefore, a show cause notice asking for the explanation of the government servant with respect to the charges against him as also a notice to show cause with respect to the proposed penalty are required to be given by Article 14 and the not giving of such notices or either of them renders the order of dismissal, removal or reduction in rank invalid.
9. According to the Applicant, the Appellate Authority has also ignored his request for granting him personal hearing and also failed to give a reasoned and speaking order. In this regard he has relied upon the Apex Court judgment in the case of Ram Chander Vs. UOI and Others 1986 (2) AISLJ 249 decided on 2.5.1986 wherein it as held as under:-
Role of Appellate Authority It is of utmost importance after 42nd amendment as interpreted by the majority to give a hearing to the Government servant concerned but also pass a reasoned order; that the Appellate Authority must not only consider the contentions raised by him in an appeal. Word consider in the context in which it appears mean an objective consideration by the Appellate Authority after due application of mind which implies the giving of reasons for its decision.
10. The learned counsel for the Applicant has also stated that the disciplinary proceedings initiated against the Applicant were in utter violation of the law laid down by the Honble Apex Court in Kumari Madhuri Patil and Another Vs. Additional Commissioner Tribal Development & Others 1994 (6) SCC 241 and confirmed by a 3 (three) Judge (larger) Bench of the Apex Court in Daya Ram Vs. Sudhir Batham & Others 2012 (1) SCC 333.
11. The respondents in their reply have denied the contentions of the Applicant. As regards the non-production of the letter dated 22.12.2005, they have submitted that the same letter was attached to another listed document No.3308/3/11/S/2005/SCR-II/CBI/ New Delhi dated 30.06.2006 issued under the signature of Shri R.T. Sahay, SP, CBI. Therefore, it was a listed document with the Memo of Charges. However, they have stated that it is true that Shri T.K. Mishra, SSP, Saran Division has stated during his cross examination that the caste certificate was got verified through Upper Samhartha (Additional Collector) Saran, Chapra vide his letter No.105 dated 29.01.2007 with the report that the population of Kharia caste in the District Saran is Zero and the caste certificate has not been issued by his office in favour of Shri Vijay Kumar. The said report was sent to SSPOs ND West Division vide his letter No.B-6/Misc/Ch-II dated 07.02.2007 mentioning therein that PRI (P) was deputed to persuade the case to get genuineness of caste certificate from District Saran, Bihar and he confirmed the contents of letter sent. Even though the defence side has been given reasonable opportunity to represent his case but the Applicant did not make the said PRI (P) as his defence witness as the applicant knows that he got the appointment in the Department of Posts on the basis of fake caste certificate. As regards denial of documents, the Respondents have stated that the documents mentioned at Sl.No.1 & 2 as sought for in the list of additional documents could not be provided to charged official as they were not found available with the appointing authority. As regards the additional document mentioned at Sl.No.4, the Disciplinary Authority refused to give the same being in the personal information of the official and not found any relevancy with the case.
11. We have heard the learned counsel for the parties. We have also considered the entire pleadings. It is seen that the Applicant was in service from the year 1981. The allegation that he had obtained the job after producing forged caste certificate was made after 27 years in the year 2007. The Respondents have got an enquiry conducted by the CBI. The CBI took up the matter with ADM, Saran (Chappra), Bihar. The DM, Saran vide his letter dated 22.12.2005 stated that in the said caste (Khariya) certificate was not issued from their office. Thereafter, the Respondents proceeded against him under Rule 14 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 vide Memorandum dated 01.11.2007. The charge against him was that the caste certificate submitted by him was fake. The Inquiry Officer held that the aforesaid charge against the Applicant was proved and based on the said report, the Disciplinary Authority imposed upon him the penalty of dismissal from service. The Appellate Authority as well as Reviewing Authority confirmed it. The Applicant has raised a number of grounds to challenge those impugned report/orders but we are not inclined to go into them for the reasons stated in the succeeding paragraphs of this order.
12. Now the question whether the caste certificate submitted by a person to secure a job in Government service is fake or not can be determined under the procedure prescribed under Rule 14 of the CCS (CCA) Rules, 1965 or not. In view of the judgment of the Apex Court in Kumari Madhuri Patils case (supra), in our considered opinion the aforesaid procedure cannot be resorted to. In the said case, the Apex Court found that spurious tribes and persons not belonging to scheduled tribes were snatching away the reservation benefits given to genuine tribals, by claiming to belong to scheduled tribes. The Court found that the admission wrongly gained or appointment wrongly obtained on the basis of false caste certificates had the effect of depriving the genuine scheduled castes or scheduled tribes of the benefits conferred on them by the Constitution. It also found that genuine candidates were denied admission to educational institutions or appointments to posts under the State, for want of social status certificate; and that ineligible or spurious candidates who falsely gained entry resorted to dilatory tactics and created hurdles in completion of the inquiries by the Scrutiny Committee, regarding their caste status. To streamline the procedure for the issuance of caste (social status) certificates, their scrutiny and approval, the Apex Court issued the fifteen directions. One of them relates to the setting up of a State Scrutiny Committee and it is as under:-
4. All the State Governments shall constitute a Committee of three officers, namely, (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the concerned department, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of Scheduled Tribes, the Research Officer who has intimated knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.
13. Further, a similar issue was considered by this Tribunal in OA No. 1368/2002 Suresh Prasad Vs. Union of India and Others decided on 11.10.2012. The Kharia-Nonia Vikas Mahasangh has already filed a representative Writ Petition before the Honble High Court of Judicature, Patna vide CWJC No.12334 of 2009. While deciding the said Writ Petition on 20.04.2010, the High Court issued directions to the State Government of Bihar, the Department of Personnel and Administrative Reforms, Government of Bihar and the Central Department of Personnel & Training to the effect that till it is found that the Scheduled Tribe certificates are forged and the same are not cancelled in due course after enquiry by competent authority, no coercive steps should be taken against the petitioners or members of petitioners association claiming the status of Scheduled Tribe, as such, provided the investigation and/departmental proceedings would constitute in accordance with law. In view of the above position, this Tribunal has disposed of Suresh Prasads case (supra) and its operative part is as under:-
8. In our considered view, when the High Court of Judicature at Patna has asked the State Government of Bihar to make an inquiry to find out whether the Kharias/Kharia-Nonia communities were Tribals or not, whether they belong to Scheduled Tribes or not and whether the members of the said communities including the applicant have obtained the forged certificates of the caste and the competent authority has cancelled those certificates after due inquiry, no coercive steps should be taken in the matter. Therefore, the respondent-department should not have been in a hurry to establish with their own departmental inquiries that the Kharia caste is a Scheduled Tribe and Nonia caste is an OBC. It is an admitted fact that the applicant is in possession of a certificate showing that he belongs to Kharia caste and it is a Scheduled Tribe. In case the findings of the Central Bureau of Investigation is that the applicant is not a Kharia as per the certificate issued to him and he belongs to OBC category they should have taken necessary steps to get the certificate issued to the applicant cancelled by the competent authority. In our considered view, just because the respondents came to the conclusion through their own method of verification that the applicant does not belong to the Kharia community which has been declared as a Scheduled Tribe and it is not established that the applicant belongs to that community, the respondents cannot come to a conclusion that he has obtained the Scheduled Tribe certificate by forgery or by any unlawful means. The genuineness or correctness of the Caste Certificate cannot be gone into by the appointing authority/disciplinary authority in a disciplinary proceedings. It can, of course, ask the issuing authority or the District Collector to verify whether the certificate as issued to the applicant could still be valid or not. However, it is only if the Certificate is cancelled, the disciplinary authority can proceed against the employee for having furnished the false certificate. The cancellation of the caste certificates has its own prescribed procedure and it is for the competent authority to follow it.
14. In view of the above facts, circumstances and the legal position, we allow this OA. The aforesaid order of the Honble High Court of Judicature, Patna dated 20.04.2010 in CWJC No. 12334 of 2009 as well as the order dated 11.10.2012 of the Co-ordiante Bench of this Tribunal in Suresh Prasads case will apply equally in the case of the Applicant also. Consequently, we quash and set aside charge sheet issued to the Applicant vide Memo dated 01.11.2009, Inquiry Officers report dated 17.06.2009, Disciplinary Authoritys order dated 10.11.2009 dismissing the Applicant from service and the Appellate Order dated 28.07.2010 rejecting the appeal of the Applicant and the order dated 14.07.2011 rejecting the Review Petition of the Applicant. Resultantly, the Respondents shall reinstate the Applicant in service forthwith, with all consequential benefits. There shall be no order as to costs.
(MRS. MANJULIKA GAUTAM) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
`Rakesh