Calcutta High Court (Appellete Side)
Subrata Mondal vs The Union Of India & Ors on 16 December, 2016
Author: Debi Prosad Dey
Bench: Debi Prosad Dey
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debi Prosad Dey
W.P. No.24693(W) of 2012
Subrata Mondal..................................Petitioner
Versus
The Union of India & Ors.........Respondents
For the Appellant/ :Mr. Sk. Mujibar Rahaman Petitioner For the plaintiffs/ Respondents : Mr. Rittwik Pattanayak Heard on :25.07.2016 Judgment on :16.12.2016 Debi Prosad Dey, J. :-
Challenge in this writ application under Article 226 of the Constitution of India is the order of dismissal of the present petitioner from the post of Central Reserve Police Force being No. P.VIII-3/2011-EC-2 dated August, 16 passed by Disciplinary Authority and to set aside the order in appeal no. R.XIII-2/2012-ES- EC-III, dated June, 15, 2012 passed by revisional authority on the ground that though the petitioner belongs to "Namasudra" Caste which is recognized as a Scheduled Caste under the Constitution(Scheduled Caste) Order 1950, in part XIX under the head of West Bengal list the said "Namasudra" Caste is appearing as item no. 46, yet the petitioner has been terminated from service on the ground of production of a fake 'Schedule Caste' Certificate.
The petitioner got himself enrolled in the Central Reserve Police Force(For short C.R.P.F) on May, 20, 1999 in the post of constable (Safai-Karmachari, Ministerial) after fulfilling all the requisite qualification and criteria.
The petitioner has been working as constable (CRPF) for about 12 years and suddenly the petitioner was served with the statements of Article of charges after 12 years of his enrolment as constable of CRPF on the ground that he had produced a fake certificate of Scheduled Caste at the time of his enrolment as constable of CRPF and he also had submitted a false declaration to that effect.
After completion of inquiry the petitioner was found guilty and the Disciplinary Authority terminated him from service. The appellate authority and the revisional authority have also upheld such decision of disciplinary authority. The contesting respondents has filed affidavit in opposition stating inter-alia that in terms of the direction given by the Hon'ble High Court at Delhi in C.W.P. 5976 of 2003 the department started verifying the Scheduled Caste Certificates in respect of the persons recruited from the Schedule Caste quota and on enquiry it was found that the scheduled Caste Certificate No. 11517 dated 16th November, 1998 produced by the petitioner was not issued from the office of Sub-Divisional Officer, Bongaon and the petitioner submitted the same and gave a declaration at the time of enrolment that the certificate was genuine. Accordingly the petitioner was found guilty in the disciplinary proceeding and he was terminated from the service.
Learned Advocate appearing on behalf of the petitioner submitted that the disciplinary authority ought to have verified authenticity of such certificate immediate after recruitment of the petitioner and that having not been done, the disciplinary authority ought to be estopped from verifying the said certificate after 12 years from the date of enrolment of the present petitioner. It is further submitted that the Division Bench of our High Court has condoned the non- production of such Scheduled Caste Certificate of a Judicial Officer at the time of filling up the form for recruitment and subsequently that officer was permitted to file the Scheduled Caste Certificate on the ground that in fact such officer actually belongs to Scheduled Tribe Community. Learned Advocate appearing on behalf of the petitioner vehemently contended that in fact there is no doubt that the present petitioner belongs to "Namasudra" Caste and thereby the present petitioner is a member of Scheduled Caste Community. This fact has also been accepted by the revisional authority as well as by the appellate authority but no opportunity was given to the petitioner to produce the original Scheduled Caste Certificate which has been annexed with the writ application being annexure P-1 and the original caste certificate subsequently issued by the SDO, Bongaon on 21st July, 2011 vide annexure P-7.
Learned Advocate for the petitioner has relied on a decision reported in (2011) 4 WBLR(Cal) 415 (Registrar General, High Court Vs. Srinibas Prasad Shah) wherein the Division Bench of this Court has permitted the officer to submit his certificate of Scheduled Tribe subsequently on the ground that on the face of the record the officer was found to be a member of scheduled tribe.
Learned Advocate appearing on behalf of the answering respondent has submitted that in fact charge was framed against the present petitioner for submitting a fake certificate for Scheduled Caste and the said charge has been duly proved during enquiry. The point of consideration before the Court is not to decide the caste of the present petitioner but to look into the charges framed against the present petitioner. It would be apparent from the articles of charge that admittedly the petitioner submitted a fake certificate of his caste and gave a declaration to that effect.
Learned Advocate on behalf of the answering respondent further submitted that the High Court cannot re-appreciate the evidences adduced at the time of enquiry acting as an appellate Court. The purpose of verification of the information submitted by the employee is to ascertain the character and antecedents of the candidate so as to assess his suitability for the post. Therefore, the petitioner was bound to answer the question truthfully and fully and any mis-representation or suppression or false statement therein, by itself would demonstrate a conduct or character unbefitting in performing for a uniformed security service.
Learned Advocate for the answering respondent has relied on the following decisions:
I) (2014) 15 Supreme Court Cases 614 (High Court of Gujarat V. Hitendra Vrajlal Ashara and Anr.) (High Court cannot re-appreciate evidence acting as the Court of appeal (para 7).
II) (2010) 14 Supreme Court Cases 103( Daya Shankar Yadav V. Union of India and Ors.) (purpose of verification of the character and antecedents of the candidate is to assess his suitability for the post.
Suppression or mis-representation or false statement made by the candidate by itself would demonstrate a conduct or character unbefitting in performing for the uniformed security forces). III) (2015) 2 Supreme Court Cases 610 ( Union of India and Ors. Vs. P. Gunasekaran) (The High Court, in exercise of its powers under Artiles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
a. The enquiry is held by a competent authority; b. The enquiry is held according to the procedure prescribed in that behalf;
c. There is violation of the principles of natural justice in conducting the proceedings;
d. The authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. The authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f. The conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion.;
g. The disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. The disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i. The finding of fact is based on no evidence. Para 13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
1. Reappreciate the evidence;
2. Interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
3. Go into the adequacy of the evidence;
4. Go into the reliability of the evidence;
5. Interfere, if there be some legal evidence on which findings can be based.
6. Correct the error of fact however grave it may appear to be;
7. Go into the proportionality of punishment unless it shocks its conscience.) IV) (2007) 8 Supreme Court Cases 600 ( Shiv Kumar Sharma V. Santosh Kumari) (law in this behalf is absolutely clear. What cannot be done directly cannot be done indirectly).
Upon consideration of the factual aspect it appears that the petitioner submitted a certificate at the time of filling up the form for the purpose of enrolment as constable of CRPF. The result of enquiry is that such certificate was fake and not issued by the sub-divisional officer of Bongaon. Therefore, the result of inquiry cannot be questioned in a writ application. On the contrary, it is crystal clear from the averments of the writ petition as well as from the documents annexed with the writ application that in fact the petitioner actually belongs to Scheduled Caste Community and to that effect the sub-divisional officer, Bongaon has issued a fresh certificate. Therefore, there was absolutely no intention on the part of the petitioner, whose qualification is eight passed only to submit a false certificate in order to get the job of CRPF. The Division Bench of our High Court in the decision reported in 2011 (4) WBLR (Cal) 415 (Registrar General, High Court Vs. Srinibas Prasad Shah) has permitted the judicial officer to continue in his service only on the ground that he was admittedly a member of Scheduled Tribe but he could not file such certificate at the time of filling up the form. In the case under reference the petitioner admittedly is a member of Scheduled Caste Community as contemplated in the schedule of the Constitution of India. Moreover, the Inspector General of CRPF while disposing the revisional application of the present petitioner has observed as follows:-
"As per the Constitution(Schedule Caste) order, 1950 as amended by the Schedule Caste and Schedule Tribes Lists (Modification) Order, 1956, 'Namasudra' falls under Schedule Caste Community and said individual also belongs to that community, but the Schedule Caste Certificate No. 11517 dated 16/11/98 produced by the individual at the time of recruitment which certifies him as Schedule Caste is fake. Hence averment made in this para is denied."
It is therefore apparent from such observation of the Inspector General of CRPF that the petitioner is a member of Scheduled Caste Community as per Constitution (Scheduled Caste) Order, 1950. Rule 10 of Central Reserve Police Forces Rules, 1955 provides that a candidate in whose case a certificate is necessary may however be appointed provisionally subject to the necessary certificate being eventually given to him by government. That goes to show that a candidate may be recruited provisionally subject to production of the necessary certificate by the government. Rule 14 of the Central Reserve Police Force Rules 1955 provides that as soon as a man is enrolled his character antecedents connections and age shall be verified in accordance with the procedure prescribed by the Central Government from time to time. In the case under reference the petitioner has been allowed to work for 12 years without having any verification and contrary to the aforesaid rules and thereafter only the disciplinary authority woke up from the slumber only on the basis of a judgment delivered by Delhi High Court. No explanation has been given by disciplinary authority as to why such verification of such petitioner was not undertaken in terms of Rules 14 of the Central Reserve Police Force Rules 1955.
Lastly, Rules 27 of Central Reserve Police Forces Rules 1955 provides the procedure for awarding of punishment and forms of punishment. At the risk of repetition I would like to state that while exercising powers under Article 226 of the Constitution of India this Court has had no power in terms of the law laid down by the Hon'ble Apex Court to ' reappreciate the evidences adduced during the disciplinary proceeding. However the decision reported in 2015(2) SCC 610 (Union of India Vs. P. Gunasekaran) gives a narrow scope to consider the proportionality of punishment. The proportion of punishment in the case under reference definitely shocks the conscience of the Court only on the ground that though the petitioner actually belongs to Scheduled Cast Community yet the ultimate punishment that is dismissal or removal from the force has been awarded against the petitioner without considering any other punishment as contemplated in Rule 27 of the Central Reserve Police Force Rules 1955. It is apparent from the aforesaid rule that the petitioner could have been reduced to a lower time scale or could have been reduced to a lower stage in a time scale of pay for a specific period or even the petitioner could have been directed to retire compulsory by allowing him to get other service benefits for his dedicated service for long 12 years in such force. Moreso, when the revisional authority has admitted about the identity and caste of the present petitioner at the time of disposal of the revisional application of the present petitioner and has accepted that the petitioner actually belonged to "Nomasudra" Caste. The disciplinary authority would have been lenient in awarding punishment to that effect. On that score, I find sufficient merit in the writ petition atleast to set aside the punishment maintaining the order of conviction against the petitioner. Gratuity cannot be snatched away from the employee in this way. The payment of gratuity Act also does not provide any such provision to deprive the employee, who has atleast served for long 12 years. Pension denotes the benefit to be extended not only to the employee but to his dependents also. The ultimate punishment for dismissal from the force is thus set aside with a direction upon the revisional authority to consider awarding of any other punishment in terms of Rule 27 of the Central Reserve Police Force Rules, 1955 within a period of eight weeks from the date of receipt of the certified copy of this order.
The writ application is thus disposed of in terms of the aforesaid order. No order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible (Debi Prosad Dey, J.)