Central Administrative Tribunal - Allahabad
Gayatri Devi vs M/O Communications on 30 August, 2023
OA No. 72 of 2016
Reserved
(On 22.08.2023)
CENTRAL ADMINIST RATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Dated: This the _30th_ day of __August__ 2023
Original Application No. 72 of 2016
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Dr. Sanjiv Kumar, Member (A)
1. Suraj Pal (Deceased)
1/1 Gyatri Devi, W/o late Suraj Pal
1/2 Priya, D/o late Suraj Pal
1/3 Ravi Kumar, S/o late Suraj Pal
1/4 Sunil Kumar, S/o late Suraj Pal
1/5 Manoj Kumar, S/o late Suraj Pal
All are R/o House No. 1/1444/50 B, New Sharda Nagar, Sharanpur, UP.
. . .Applicants
By Adv : Shri Satish Dwivedi
VERSUS
1. Bharat Sanchar Nigam Limited, through its Chairman/ Managing
Director, Harish Chandra MathurLane, Bharat Sanchar Bhawan,
Janpath, New Delhi.
2. The Senior General Manager, Telecom, District, Mission
Compound Exchange Building, Saharanpur UP 247001.
3. The Deputy General Manager (CFA),Offficeof General Manager,
Telecom, District, Mission Compound Exchange Building,
Saharanpur UP 247001.
. . .Respondents
By Adv: Shri D.S. Shukla
ORDER
By Hon'ble Dr. Sanjiv Kumar, Member (A) The instant OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking relief to quash the order dated 08.12.2015 passed by the Senior General Manager Telecom District BSNL, Saharanpur UP as illegal and further the respondents be directed Page 1 of 18 OA No. 72 of 2016 to release all the retirement benefits including pensionary benefits with interest within the specified period, and any other relief as deem fit and proper and to award cost.
2. The fact of the applicant is that the applicant was appointed as Telephone Operator w.e.f. 12.03.1974 and got several promotions in the department. He retired provisionally from service on attaining age of superannuation w.e.f. 31.01.2015 from the post of Senior Telecom Office Assistant allowing him provisional pension. The father of the applicant Sri Jalim Singh was original resident of State of Rajasthan and was belonging to caste Sahariya which was covered under main caste group Ahariya. The Sahariya was in the schedule of Tribes in the State of Rajasthan. The applicant was born on 16.01.1955 in the village Aahadnagara of Rajasthan. When the applicant was six months old his father shifted to UP and started living in village Daryapur in Nayay Panchayat Tilothi of Tehasil Hathras, District Aligarh. There was no other person of his caste Sahariya in that district of Aligarh, but his caste Sahariya was recognized under one title name Aheriya as SC and there was no caste name Sahariya in UP. Whereas the applicant was entitled for facility admissible to them in Rajasthan after their migration to UP. Their profession was catching birds from Forest. The applicant says that as per circular dated 31.08.1992 of Department of Telecom his father was treated as ST in State of Rajasthan, and is entitled to be treated as ST category after migration. The applicant had earlier joined as employee of Department of Telecommunication and subsequently absorbed into BSNL and before appointment he had applied to Tehsildar for issuing the caste certificate and after local inquiry the ST caste certificate was issued to him and original caste certificate was deposited by the applicant in the Department. After 38 years of service the respondent No. 3 issued a charge sheet Page 2 of 18 OA No. 72 of 2016 dated 18.04.2012 under Rule 36 of BSNL CDA Rules 2006 levelling false charge against the applicant. In the said charge sheet it is mentioned that the caste certificate of Sri Chhatrapal younger brother of the applicant in which his caste was shown Sahariya has been cancelled by the Tehsildar, Saharanpur by order dated 01.10.2009 saying that the caste name of Chhatrapal was found to be Ahariya caste which does not come under the category of ST according to schedule of 2001 and as such the caste certificate No. 434 submitted by Shri Chhatrapal at the time of his appointment was declared false and fake.
3. The applicant being the real brother of Shri Chhatrapal is also related to same caste which is not categorized under ST category and thus by that caste certificate the applicant obtained all benefits of promotion as ST candidate illegally and failed to maintain absolute integrity and has furnished false information and acted in a manner unbecoming of public servant and thus contravened the provisions of Rule 4 (1) (a), and Rule 5 (4) of BSNL CDA Rule, 2006. His caste certificate was issued by Tehsildar, Hatras eight years before the appointment of Shri Chhatrapal and his caste certificate was also verified again by Tehsildar Saharanpur. So the certificate issued to Chhatrapal was in no way concerned with the applicant's service which were being performed even earlier than the appointment of his brother in BSNL.
4. The applicant by his letter dated 12.10.2012 demanded certain documents which were relied upon in framing charges but the same were not supplied and department compelled him to file reply of the charge sheet on 22.01.2013. The document listed in annexure 3 of the charge sheet was delivered on 22.01.2013 after a period of nine months from the date of issue of the charge sheet. In his reply he further says that the Page 3 of 18 OA No. 72 of 2016 caste certificate of his brother Chhatrapal was issued by the Tehsildar, Saharanpur in the year 1982 as per UP Gazette of the year 1950 but his certificate was cancelled on 01.10.2009 by the Tehsildar as per reference of UP Gazette of the year 2001; and his caste certificate was issued by Tehsildar, Hatras in the year 1973 and the same is still valid and has not been cancelled. His charge sheet has been issued based on disciplinary case of his brother Chhatrapal which is pending. Hence, the charges levelled against him are absolutely illegal and unsustainable in law.
5. Thereafter, the proceeding was started by the Inquiry Officer and applicant wanted to do the inspections of files mentioned at Sl. Nos.1, 2 and 3 but the department by his letter dated 07.11.2014 and 22.11.2014 refused to allow the inspection of said files on the ground that all the files are related to Sri Chahatrapal who has been removed from the job after inquiry and further his matter is subjudice before the Hon'ble Court, so the documents cannot be provided until decision. The applicant submitted his defence brief before the Inquiry Officer on 31.01.2015 and he emphasized that his caste certificate was still valid and the same is not cancelled. Hence, based on the case of his brother which is subjudice before the Hon'ble High Court, wherein on 21.02.2014 in Writ Petition No. 112925 of 2014 (Chhatrapal vs. State of UP and others) still proceedings, and the Hon'ble High Court has stayed the order dated 01.10.2009 passed by the Tehsildar, Saharanpur, whereby the caste certificate of Chhatrapal had been cancelled. Under the circumstances, consequently no charges against him is made out.
6. The District Magistrate Saharanpur by his letter dated 21.03.2014 wrote to General Manager, Telecom District BSNL Saharanpur for compliance of the order dated 21.02.2014 passed in Civil Misc. Writ Page 4 of 18 OA No. 72 of 2016 Petition No. 11292 of 2014 (Chhatrapal vs. State of UP and others). The Inquiry Office submitted report on 17.01.2015 before the competent authority and has recorded specific finding that the charge of submission of caste certificate in ST category, in memo dated 18.04.2012, by Suraj Pal Senior TOA (P) is not established. The Senior General Manager, Telecom District Saharanpur did not agree with the finding recorded by the Inquiry Officer and gave a notice dated 23.01.2015 to the applicant mentioning therein about his disagreement on inquiry report and he gave an opportunity to the applicant to submit representation by 29.01.2015 against the disagreement notice dated 23.01.2015.
7. The applicant submitted his representation against the said disagreement note on 29.01.2015 before the Senior General Manager, Telecom District BSNL Saharanpur. The applicant avers that there is no illegality and infirmity in finding of the Inquiry Officer and without lawful justification and without any legal basis the disagreement notice was sent and the punishment was imposed without considering the submission of the applicant and without considering entire material available on record. The applicant avers that disciplinary provision of retiring employee are given under Rule 61 of BSNL CDA Rules 2006 and according to Rule 61 (4) (2) (a) where the disciplinary proceedings are instituted by an authority subordinate to the Chairman/Managing Director, that authority shall submit a report recording its findings to the Chairman/Managing Director under Rule 4 (4) it is Chairman/Managing Director who decides to impose penalty on delinquent employee. In the present matter the inquiry was instituted by the DGM (CFA) against the applicant who is subordinate to the Chairman/Managing Director but he instead of submitting report of enquiry to the Chairman/Managing Director, the report was submitted to the Senior General Manager, Telecom District BSNL, Saharanpur who Page 5 of 18 OA No. 72 of 2016 was not competent authority to impose penalty on applicant under Rule 61 of BSNL CDA Rules 2006. Hence, the said order was without jurisdiction and authority under the law.
8. He further says that forfeiture of retirement benefits can only be imposed when the employee found guilty in disciplinary proceedings or judicial proceedings of an offence / misconduct mentioned in Sub Section 6 of Section 4 of the Payment of Gratuity Act, 1972 or the employee has caused pecuniary loss to the company by misconduct / negligence but in the present case the applicant has neither been found guilty of offence / misconduct as mentioned in Sub Section 6 of Section 4 of Payment of Gratuity Rules, 1972 and he has not caused any pecuniary loss to the BSNL by any misconduct or negligence during the period of his service. Hence, the same is illegal and contrary to the provisions of Rule 61 (3) of BSNL CDA Rules, 2006. In view of these anomalies he seeks to quash the impugned order and to direct the respondents to release his post retiral benefits.
9. The respondents have filed their counter affidavit wherein basic facts of the case are not denied. The applicant was recruited as Senior TOA (P) on 12.03.1974 and he was recruited under reserved vacancy of ST which is recorded in the first page of his service book. One Chhatrapal, S/o Sri Jalim Singh was working as a Retail Manager in the office of SDE, RCM/FM Saharanpur who is real brother of the applicant and had submitted his ST caste certificate at the time of his recruitment issued by the Tahisldar Saharanpur dated 30.12.1981. The caste certificate of Shri Chhatrapal was cancelled by Tehsildar Saharanpur vide office letter No. Patrank/ 165/Jansuvidha Kendra Sadar dated 01.10.2009 due to the fact that his caste Ahariya does not come under the category of Page 6 of 18 OA No. 72 of 2016 ST and he was removed from service after observing disciplinary proceedings as per rules and after it was established that the caste certificate submitted by him at the time of his recruitment is false. Shri Chhatrapal filed an OA No. 1294/2014 (Chhatrapal vs. BSNL) against the order of removal from service which is still pending before this Tribunal. The applicant also after getting into service claimed benefits in promotion as ST candidates. Hence, he was charge sheeted under Rule 36 of BSNL CDA Rules, 2006 and he failed to produce any evidence against the charges levelled against him. Considering all the facts and documents etc., the disciplinary authority has passed the order dated 08.02.2015 and imposed the penalty of forfeiture of retirement benefits and pensionary benefits under BSNL CDA Rule 2006 against the applicant. The aforesaid punishment order was rectified by Department of Telecommunication, New Delhi vide order dated 09.09.2015 of Dy. Secretary to Government of India, Department of Telecommunication, New Delhi the applicant retired on superannuation on 31.01.2015.
10. Rejoinder affidavit has been filed by the applicant wherein he reiterates the facts as in the OA.
11. Respondents have filed supplementary counter affidavit wherein they reiterates the facts as in the counter affidavit. He say that the disciplinary authority rightly issued the disagreement note and served duly on the applicant and after giving him due opportunity of being heard went ahead to pass orders against the applicant as charges were proved against the applicant. The authority imposed the penalty of forfeiture of the retirement benefits and pensionary benefits and the same was rectified by the Department of Telecommunication, New Delhi vide its Page 7 of 18 OA No. 72 of 2016 order dated 09.09.2015. They have annexed the copy of the penalty forfeiture of pensionary benefits.
12. Another supplementary counter affidavit has been filed wherein again the same facts have been reiterated and Government Office memorandum dated 28.01.2010 of DOPT of Compilation of Information about appointments made on the basis of fake / false caste certificate recommendation of the Parliamentary Committee on the welfare of SC/ST and OM dated 10.01.2017 on action against Government servants who get appointment on the basis of false SC/ST/OBC certificates and Ratification of penalty order of 19th and 18th September 2015 is filed alongwith a list of misconduct.
13. Supplementary rejoinder was filed by the applicant wherein he further reiterated the facts as in the OA and it is contended that the Department of Telecommunication and BSNL has not power to impose said punishment without getting prior permission from the competent authority and the respondents failed to follow the provision of the Rules contained in Rule 43 of BSNL Conduct (D&A) Rules, 2006. They contend that the punishment cannot be rectified under the law and by a letter dated 16.06.2015 by Dy. Secretary to the Government of India is filed here but not the alleged letter of ratification has not been filed. They further aver that the BSNL has not got power or jurisdiction to initiate any proceedings in respect of any misconduct committed during the period of service of Department of Telecom and since no misconduct was committed during the period of service in BSNL as stated by the respondents. Under these circumstances the entire penalty imposed on husband of the applicant is without jurisdiction and unsustainable in law and the applicant is entitled to Page 8 of 18 OA No. 72 of 2016 get family pension and other pecuniary benefits of service of her husband under the law.
14. They further quote that as per Rule 24 (C) of Rule 37 (a) of CCS (Pension) Rule 1972 the absorbed employees of BSNL are entitled to retirement benefits for the service rendered under the Government even if they are dismissed, removed from service after their absorption in BSNL for any misconduct during service in BSNL, and that the applicant in the OA had completed 27 years of service in the Department of Telecommunication of Government of India and after absorption in BSNL he continued in service till the date of his retirement on 31.01.2015, so the applicant was entitled to get regular pension under law and now his family is entitled for family pension. As the applicant had died his legal heirs have come on record and on his behalf they have asked to quash the impugned order as the husband of the applicant had on 29.11.2016 and her request for family provisional pension, fixation was also turned down.
15. The case came up for final hearing on 22.08.2023. Shri Satish Dwivedi, learned counsel for the applicant and Shri D.S. Shukla, learned counsel for the respondents were present and heard. We have gone through the record and have carefully examined the rival contentions.
16. From the record it is evident that the case built against the applicant in the OA, Shri Suraj Pal, is based on the disciplinary case which was there against his brother in the same department, and based on the said case his brother Chhatrapal was dismissed for giving false caste certificate wherein his case was shown as ST category and he has obtained a caste certificate from Tahsildar, Sahranpur and in due course the Tehsildar on re-inquiry after a long time cancelled the said caste Page 9 of 18 OA No. 72 of 2016 certificate. Cancellation of the caste certificate of his brother Chhatrapal vide Tehsildar Saharanpur office letter No. Patrank/ 165/Jansuvidha Kendra Sadar dated 01.10.2009 was because his caste Ahariya does not come under category of ST in the said District, and he was removed from service after conducting disciplinary proceedings as per rule and after it was established that the caste certificate submitted by him at the time of his recruitment was false. This fact that Shri Chhatrapal was his own brother and he was dismissed for producing false caste certificate is not denied by the applicant; but he has taken other contentions that his cancellation of the caste certificate of Chhatrapal was dated 01.10.2009, and the same was challenged in the Hon'ble High Court and there was a stay from the Hon'ble High Court. The said order in Writ (C) No. 11292/2014 is at page 74 of the OA wherein Hon'ble High Court in concluding para an interim order dated 21.02.2014 was passed as under:-
"Considering the fact that the caste certificate was of the year 1981, we direct that the effect and operation of the impugned order shall remain stayed."
17. But we can further find from record that the Hon'ble Allahabad High Court has finally decided the Writ (C) No. 11929 of 2014 on 31.03.2016 and had passed the final order as follows:-
"Once such is the factual situation that is so emerging in the present case that first step of remedial forum has been invoked by the petitioner by approaching the District Level Caste Scrutiny Committee headed by Chairman/District Magistrate, Saharanpur, and said committee in its wisdom has proceeded to turn down the request of the petitioner vide order dated 04.01.2014, then against the said order second remedial forum under the scheme of things provided for ought to have been invoked by the petitioner by approaching Regional Level Caste Scrutiny Committee headed by Commissioner instead of approaching this Court. In our considered opinion, once three tier forum has been provided for remedying the situation and petitioner has proceeded to invoke the first tier of proceeding and second tier of proceeding is also available to the petitioner. In view of this, present writ petition is not being entertained and petitioner is relegated to approach the second tier forum i.e. Regional Level Caste Scrutiny Committee head by the Commissioner. With the above, present writ petition is dismissed on the ground of alternative remedy."
18. But as is from the counter affidavit that said case in the Hon'ble High Court has since concluded and the Court observed that there is Page 10 of 18 OA No. 72 of 2016 Divisional Level Committee which looks into the second appeal against the certificate of cancellation by the Tehsildar, hence, there was alternate remedy available to the party. Writ Petition No. 11292/2014 (Chhatrapal vs. State of UP and others) was dismissed on 31.03.2016 on the ground of alternative remedy. The petitioner Chhatrapal is to approach the forum i.e. Regional Level Caste Scrutiny Committee head by the Commissioner. Hence, this contention that the said order is stayed by Hon'ble High Court is not sustainable at this stage and caste certificate of his brother which was earlier declared illegitimate still remains as such, and by implication his own brother the present applicant in the OA Suraj Pal's caste certificate also comes under the same cloud. Hence, the facts of the case cannot be disputed and the evidence adduced before the Inquiry Officer and Disciplinary Authority cannot be assailed on these grounds.
19. As the Tribunal has very limited scope of scrutiny of evidences and re-appreciating the whole content of inquiry based on what were the findings of the Inquiry Officer or Disciplinary Authority etc. As in a long catena of judgments the power and scope of judicial review by an Administrative Tribunal and Hon'ble High Courts in disciplinary proceedings is vividly defined, and is supposed to be very limited. The Hon'ble Apex Court in the case of Union of India versus P. Gunasekaran 2015 (2) S.C.C. Page 610) in paras 12, 13 & 20 has held as follows:-
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence.
Under Article 226/227 of the Constitution of India, the High Court shall not:
(i). re-appreciate the evidence;Page 11 of 18 OA No. 72 of 2016
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.
(vi). correct the error of fact however grave it may appear to be;
(vii). go into the proportionality of punishment unless it shocks its conscience.
Xx xx xx
19. The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to re- appreciate the evidence in exercise of its jurisdiction under Article 226/227 of the Constitution of India.
20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values."
20. Considering the ratio of the above quoted judgment we are not getting into details of the evidences further and consider that those were sufficiently and rightly have been examined by the Disciplinary Authority and the Inquiry Officer. Hence, our scrutiny is limited to the technical aspects of this case which have been raised by the applicant. First and foremost point raised by them is that the authority who acted as Disciplinary Authority was not competent passing orders, have passed orders in the said case as of the retiring officials as quoted as under:-
"BSNL CDA Rules 2006- Rule 61- Disciplinary Provisions for Retiring Employees-
4(2)(a) The disciplinary proceedings referred in sub-rule 4(1) if instituted while the absorbed employee was in service whether before his retirement or during his re-employment, shall, after the final retirement of the absorbed employee, be deemed to be proceedings under this rule and shall be continued and concluded Page 12 of 18 OA No. 72 of 2016 by the authority by which they were commenced in the same manner as if the absorbed employee had continued in service.
Provided that where the disciplinary proceedings are instituted by an authority subordinate to the Chairman/Managing Director, that authority shall submit a report recording of its findings to the Chairman/Managing Director.
Also the procedure in such cases has been laid down in rule 136 to 138 of P&T Man Vol II as-
Rule 136 to 138 of P&T Man Vol III appearing in chapter 9 of CCS (CCA) Rules, 1965 - Proceedings after retirement-
Disciplinary proceedings initiated while an officer was in service should be deemed to be proceedings under rule 9 of the Central Civil Services (Pension) Rule 1972, after his retirement should be continued and concluded under the provision of that rule. In such case the function of the disciplinary authority is only to reach a finding on the charges and to submit a report recording its findings and take a final decision under Rule 9 of CCS (Pension) Rules. If as a result of such consideration in consultation with the consideration in consultation with the commission it is decided to pass an order under Rule 9, necessary orders will be issued in the name of the President. This procedure will also apply to a case where the President functions as the Disciplinary Authority."
21. To which the respondents have said in their para 10 of the counter affidavit that disciplinary proceedings were initiated as per BSNL CDA Rules 2006 against the applicant as the charge sheet was served under Rule 36 of BSNL CDA Rules 2006 while he was still in service. Although the order by the disciplinary authority was passed on 08.12.2015 imposing penalty of forfeiture of retirement benefits and pensionary benefits under BSNL DCA Rule, 2006. The said punishment was ratified by the Department of Telecommunication, New Delhi vide letter dated 09.09.2015. The applicant, by pointing Rule 61 basically is trying to say that the said order should have been passed by the Chairman/Managing Director and the present disciplinary authority should have submitted a report of its findings to the Chairman/Managing Director. This technical defects remains on record but considering the gravity of the case and view of the Hon'ble Apex Court orders in the cases of false caste certificate as in Civil Appeal No. 4990/2021 dated 11.07.2022 where in the Hon'ble Apex Court ruled following:-
"16. The above would show that the High Court clearly fell into an error by granting relief to the respondent no.1 who is disentitled to claim any right to continue in a post earmarked for the ST category.Page 13 of 18 OA No. 72 of 2016
The ratio in Milind (supra) was incorrectly applied in the impugned judgment since it is not the case of the respondent no.1 that he belongs to the ST category. According to our understanding of the circumstances, the High Court instead of granting equitable relief to the Respondent no. 1, should have held that he cannot continue to usurp the benefits meant for a ST category person. Indeed the Division Bench should have said "the game is up" as was pronounced by Shakespeare in the play Cymbeline when the character stood exposed for what he actually was. Consequently we are of the opinion that the Respondent no. 1 being an OBC cannot be retained in a ST category post. However the emoluments paid to him should not be recovered. It is further held that the respondent no.1 is disentitled to any pensionary benefit by virtue of his wrongful appointment. It is ordered accordingly. The appeal therefore stands allowed, leaving the parties to bear their own costs."
22. Considering the ratio of this judgment granting equitable relief to the respondents based no mere technicalities and ratio of natural justice would be improper and injustice to every aspiring ST candidate who had right to be on the said post and who have been deprived of their equitable rights by someone who brought false caste certificate and obtained the job and have been enjoying the benefits of the same for so long, and this case also is right to say that the applicant's game was up and over.
23. Similarly in another Civil Appal No. 4636 of 2008 dated 25.07.2008 wherein case of State of Maharastra and others vs Ravi Prakash Babulalsing Parmar and another dealing with a similar situation, the Hon'ble Apex Court has observed thus:
"The makers of the Constitution laid emphasis on equality amongst citizens. The Constitution of India provides for protective discrimination and reservation so as to enable the disadvantaged group to come on the same platform as that of the forward community. If and when a person takes an undue advantage of the said beneficent provision of the Constitution by obtaining the benefits of reservation and other benefits provided under the Presidential Order although he is not entitled thereto, he not only plays a fraud on the society but in effect and substance plays a fraud on the Constitution. When, therefore, a certificate is granted to a person who is not otherwise entitled thereto, it is entirely incorrect to contend that the State shall be helpless spectator in the matter."
24. Hence, in our opinion even if the case files are put after remand before the alleged competent authority his orders will not be very different than that what the original Disciplinary Authority who was competent to Page 14 of 18 OA No. 72 of 2016 pass such order when the accused was still in service. The authorities have also tried to rectify the same by getting approval by the Government post-facto. Hence, we find little merit in the technical argument of the applicant.
25. Further applicant argued that the misconduct noted in the schedule of the Rules and the imposed penalty are not mentioned specifically in the Rules, but these technicalities do not help an extreme case of obtaining an illegitimate caste certificate and depriving others of their legitimate right of getting jobs and in the Rule last proviso is open ended omnibus generic provision. Hence, these arguments do not sustain.
26. The applicant has cited the order in OA 1087 of 2016 of CAT Jabalpur Bench dated 02.05.2018 wherein the case relates to CBI inquiry and based on criminal charges etc. and not related to the case of false caste certificate. Hence, there is no similarly between the two cases as the case of caste certificate as ruled by the Hon'ble Supreme Court in the two judgments quoted earlier are of the nature where the continuance of said person, who does such act in service which is against the society as well as the constitution, as a certificates granted to a person who is not otherwise entitled thereto, incorrect to contend that the state shall be helpless spectator in the matter, and the perpetrator should go unpunished. Hence, no benefit of this particular case of a coordinate Bench can be relied for giving benefit to the applicant. The applicant further quotes the Hon'ble Allahabad High Court order in Writ Petition No. 10597 of 2021 decided on 26.08.2021, wherein the applicant wants to say that the penalty can only be imposed if the same is specifically provided in the rules and nothing beyond, but present case is extra ordinary being a case of false caste certificate where evidence is self evident and do not Page 15 of 18 OA No. 72 of 2016 need much proof; as cancellation of caste certificate of the applicant's own brother Shri Chhatrapal, and further confirmation of the said cancellation by the appellate committee at the District level, and the disciplinary inquiry concluded against him and also which has been confirmed in the OA No. 1294 of 2014 which was filed before the coordinate Bench of this Tribunal are clear and self evident . In this particular case the Tribunal ruled as under:-
"16. The sum and substance of the analysis made hereinabove is that applicant was original resident of State of Rajasthan belonging to caste Sahariya which is the sub caste of Ahariya under the group of ST community. He migrated to the State of UP in District Saharanpur. Scheduled/list promulgated by State of Uttar Pradesh also reveals that caste belonging to the applicant is not recognized within the District of Saharanpur, State of Uttar Pradesh. brochure relied upon by the learned counsel for the applicant could also be taken into consideration only to the extent that if applicant has migrated from the State of Rajasthan to State of Uttar Pradesh, his caste status shall remain intact in the State of Rajasthan only. He cannot claim the same status in the State of Uttar Pradesh except District Lalitpur. Had he been migrated to District Lalitpur State of Uttar Pradesh from Rajasthan, the result would otherwise. Issuance of caste certificate by the competent authority on the basis of wrong fact itself will not be sufficient to deem that caste certificate is guanine. Sufficient opportunity has been given to the applicant before passing the impugned order. Proper procedure has also been followed. Mere longevity in service will not create any right in favour of the applicant to continue in the service on the basis of fake and forge certificate. Government is not barred to take action in the facts and circumstances of the case irrespective of the fact that many more years have been passed after joining the service by the applicant. Mandate of Rule 43 of BSNL Conduct, Discipline Rules 2006 has also been followed as has been discussed hereinabove. Present matter was solely based on documentary evidence, thus, all the documents relied upon in the enquiry have been supplied to the applicant. No procedural defects have been found in conducting the enquiry. No relief has been granted to the applicant by the Hon'ble High Court in the writ petition filed by the applicant. Thus, keeping in view the above observations/ discussion, we are of the view that OA is liable to be dismissed. Accordingly, OA is dismissed. All associated MAs stand disposed of. No order as to costs."
27. Hence, the present applicant does not get any benefit of this order also. Further the applicant cited Hon'ble Allahabad High Court order in Civil Misc. Writ Petition No. 32261 of 2011 decided on 23.09.2013, that in the disciplinary proceedings the punishment to be awarded must be prescribed in rules. This order is also not relevant in the present case as present case pertains to false ST caste certificate, which is a very serious misconduct viewed from any point of view.
Page 16 of 18 OA No. 72 of 2016
28. The applicant had further contended that he has not committed any serious misconduct, and he has not caused any pecuniary loss to the government so the imposed penalty of withdrawing his pensionary benefits and retirement benefits are too high and disproportionate, also not convincing. A person using false caste certificate and depriving others of rightful job, and drawing salary and emoluments throughout their working life is clearly pecuniary loss to the government as well as to someone who were the rightful beneficiary of such reservation and consequent deprivation. Hence, we do not find this line of argument to be convincing.
29. Furthermore, the applicant argued that his caste certificate was used at the time of appointment when he joined the then Department of Telecommunication (DOT), and served in the said department for long period of his working life, hence, at present authorities of BSNL who are a different organisation and different authority cannot take action against him. By implication the applicant wants to argue that, he may have cheated the DOT by submitting a false certificate, hence the BSNL cannot take action against him as he did not cheat them. But this argument is specious as false certificate production is continuing offence and it continues till any benefit of appointment, whether emoluments as salary or pension or any other benefits are given to such person whether post or pre retirement including promotion, increment etc. Any way rules are also clear on this that when DOT employees come to BSNL the inherited powers to deal with all such absorbed employees the BSNL has, as DOT could have dealt with them earlier.
Page 17 of 18 OA No. 72 of 2016
30. Furthermore, argument of the applicant that most of the time in his working life he worked for DOT and so his pension and retiral benefits are mostly due to his earlier service, hence at this stage by BSNL those earlier accrued benefits cannot be curtailed by BSNL. But this argument is also far from convincing as any appointment based on a false caste certificate is a continuing misconduct which starts with the first act of obtaining and giving false certificate and continues till any benefit is derived from such appointment and continuation, hence forfeiture of all such illegitimate benefits was not out of place in such cases.
31. In general from the records it is evident that procedurally there is substantial compliance of the procedure laid down for the disciplinary inquiry for a major penalty in this case.
32. Considering the ratio of the judgments of the Hon'ble Apex Court quoted above and the facts of the case, we do not find any merit in any of the contentions of the applicant. Hence, we pass following orders:-
"The OA is dismissed. All associated MAs stand disposed of. No order as to costs"
(Dr. Sanjiv Kumar) (Justice Om Prakash VII)
Member (A) Member (J)
/Piyush/
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