HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 3 Case :- SPECIAL APPEAL No. - 21 of 2009 Appellant :- Vijay Kumar Yadav Respondent :- State Of U.P. And Others Counsel for Appellant :- Akhilanand Mishra,A.K. Singh,Manish Kumar Nigam,Vijay Kumar Yadav (I/P) Counsel for Respondent :- C.S.C. Hon'ble Krishna Murari, J.
Hon'ble Amar Singh Chauhan, J.
(Delivered by Hon'ble Amar Singh Chauhan, J.) Heard Sri Vijay Kumar Yadav, appellant in person, learned Standing Counsel for the State respondents and perused the material on record.
This intra court appeal is directed against the order dated 24.11.2008, whereby the learned Single Judge dismissed the Civil Misc. Writ Petition No. 23090 of 2008, (Vijay Kumar Yadav vs. State of U.P. & others) on the ground that the petitioner was not major and he was aged about 14 years at the time of appointment. Therefore, prima facie, his appointment was illegal on the post of Runner in Tubewell Construction Division, Gonda.
Brief facts of this case are that the petitioner-appellant was appointed on the post of Runner (DHAWAK) in Tubewell Construction Division, Gonda under the Dying in Harness Rules, 1974. Thereafter the petitioner-appellant was transferred to Tubewell Division-I, Gorakhpur where he joined on 10.9.1992. In this regard, a confirmation letter dated 29.1.1999 of respondent no. 5 is annexed at page 33 as Annexure-1 to the writ petition. At the time of appointment, the petitioner-appellant was asked to prove his date of birth. The Chief Medical Officer, Gonda has determined the age of the appellant as 18 years and on the basis of which the date of birth of the appellant was recorded as 11.12.1969 in his service book. On 27.10.2006, a complaint was made by Sri Raj Kumar Yadav to the Executive Engineer Tubewell Division-I, Gorakhpur that on the basis of forged medical certificate, the appellant namely Vijay Kumar Yadav has obtained appointment. On the basis of the complaint, a Committee was constituted by the Executive Engineer, Tubewell Division-I, Gorakhpur asking for report regarding the complaint and verification of age of the petitioner. The Committee submitted its report on 28.4.2007 mentioning that the certificate which was issued by the Principal of the institution namely Cooperative Inter College, Pipraich, Gorakhpur dated 28.2.2003, the date of birth of the petitioner was 1.7.1974. Therefore, on the date of the appointment, the appellant was only 14 years of age and on the basis of the forged medical certificate, he has obtained appointment. It is recommended by the Committee that major punishment be awarded to the petitioner. On these facts, the appellant was given charge sheet on 31.10.2007, which is Annexure-2 to the writ petition. Thereafter, the appellant submitted his reply of the charge sheet on 3.11.2007, which is Annexure-3 to the writ petition. The reply submitted by the petitioner-appellant reveals that allegation made in the charge sheet about the certificate issued by the Cooperative Inter College and the date of birth mentioned in the College record has not been denied. Having regard to the reply of the charge sheet filed by the petitioner-appellant and the enquiry report, the appellant has been removed from service by the impugned order dated 24.11.2008 and the appointment was declared as illegal.
Submission of the appellant is that Raj Kumar Yadav was inimical to the petitioner and manipulated the record of the school and filed a character certificate which was believed by the Committee whereas Medical Board has given the age of 18 years. He was not aware of his date of birth and the finding given by the Chief Medical Officer should be believed. At the time of the appointment, petitioner-appellant was asked to get his age determined by the CMO. His age was determined as 18 years and, accordingly, CMO issued the age certificate on the basis of which date of birth was recorded as 11.12.1969 in service book. He had studied in Cooperative Inter College, Pipraich, Gorakhpur up to the 9th class and failed in Class IX in the year 1987 since he had not appeared at all or passed High School Examination. Order dated 23.4.2008 shows that it was passed on the basis of the inquiry report dated 22.1.2008, according to which, the appellant appeared in High School Examination without permission of the Department to justify his date of birth recorded in his service book. Therefore, the report dated 22.1.2008 was submitted without holding enquiry proceeding and appellant was not called upon to appear before the Enquiry Officer. The inquiry report was also not supplied to him. Order of removal from service has been passed without providing opportunity of hearing inasmuch as he was not asked to participate in the inquiry proceeding. Enquiry report was submitted behind his back without holding the inquiry. The order of removal is violative of Article 311 of the Constitution and also violative to principle of natural justice.
Per contrary learned Standing Counsel submitted that the petitioner has obtained the compassionate appointment after the death of his father namely Ram Sunder Yadav at the age of 14 years. As such, at the time of appointment, he was minor and has obtained appointment on the basis of the forged certificate alleged to be issued by CMO, Gonda. The date of birth as entered in service book on the basis of certificate issued by CMO, Gonda, is 11.12.1969 whereas, as per complaint, which was sent by Raj Kumar Yadav accompanied by the character certificate issued by the Principal, Cooperative Inter College, Pipraich, Gorakhpur, the age of the appellant is 1.7.1974. The Enquiry Committee submitted its report holding that the age of the petitioner was 14 years. He has concealed his age at the time of initial appointment in the Department and recommended for major punishment.
In the case, in hand, petitioner-appellant was appointed on the post of Runner (DHAWAK) which falls under Class-IV category in the Tubewell Construction Division, Gonda on 24.3.1988 on compassionate ground under the Dying in Harness Rules, 1974. The appellant was asked to get his age determined by the Chief Medical Officer. His date of birth, on the basis of the service book and the certificate issued by CMO Gonda, is 11.12.1969. The complaint was received accompanied by character certificate issued by the Principal, Cooperative Inter College, Pipraich, Gorakhpur in which date of birth of petitioner-appellant was shown as 1.7.1974. On the basis of the complaint, an enquiry was initiated. The Enquiry Committee, instead of relying the service book entry in which age of the petitioner on the basis of the certificate issued by the CMO, Gonda was entered as 11.12.1969, had relied on the letter of the Principal/Character Certificate whereas in the eye of law character certificate is not admissible as proof of age. The medical evidence is based on scientific investigation such as X-ray, ossification test which will have to be given due weight and precedence over the shaky evidence based on school administration record which give rise to hypothesis and speculation about the age.
It is well known fact that parents have a tendency to show lesser age of the child for High School Examination. The Hon'ble Supreme Court in Om Prakash vs. State of Rajasthan and another, AIR 2012 SC 1608 held that in such a situation when the school record itself is not free from ambiguity and conclusively prove the minority of the accused the opinion of the medical experts based on X-ray and ossification test will have to be given precedence over the shaky evidence based on school records.
The appellant was not asked to supply proof of age from the school where he had studied but he was asked to give medical certificate of CMO in proof of age. In these circumstances, the medical certificate issued by the CMO, based on ossification test or X-ray cannot be belied by saying that it is fake and forged. The Enquiry Committee submitted his report without giving opportunity of hearing to the appellant and no show cause notice was given nor copy of the enquiry report was supplied to the appellant. Under Rule 9(4) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the "rules of 1999") which governs the service condition of the appellant, it was incumbent upon the disciplinary authority to supply a copy of the enquiry report to the charged Government servant giving him opportunity to submit his representation if he so desires, within a reasonable specified time and thereafter proceed to pass a reasoned order in respect of the penalty. Relevant Rule 9(4) reads as under:
"9. Action on Inquiry Report.--(1) The Disciplinary Authority may, for reasons to be recorded in writing, remit the case for re-inquiry to the same or any other Inquiry Officer under intimation to the charged Government servant. The Inquiry Officer shall thereupon proceed to hold the inquiry from such stage as directed by the Disciplinary Authority, according to the provisions of Rule 7.
(2)The Disciplinary Authority shall, if it disagrees with the findings of the Inquiry Officer on any charge, record its own finding thereon for reasons to be recorded.
(3)In case the charges are not proved, the charged Government servant shall be exonerated the Disciplinary Authority of the charges and informed him accordingly.
(4)If the Disciplinary Authority, having regard to its findings on all or any of charges is of the opinion that any penalty specified in Rule 3 should be imposed on the charged Government servant, he shall give a copy of the inquiry report and his findings recorded under sub-rule (2) to the charged Government servant and require him to submit his representation if he so desires, within a reasonable specified time. The Disciplinary Authority shall, having regard to all the relevant records relating to the inquiry and representation of the charged Government servant, if any, and subject to the provisions of Rule 16 of these rules, pass a reasoned order imposing on or more penalties mentioned in Rule 3 of these rules and communicate the same to the charged Government servant."
The Apex Court in the case of Union of India Vs. Mohd. Ramzan Khan (1991) 1 SCC 588 and in the case of Managing Director, ECIL, Hyderabad and others Vs. B. Karunakar and others (1993) 4 SCC 727 has held that where the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report in Court before the disciplinary authority arrives at its conclusions with regard to guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of principles of natural justice. In the case in hand, admittedly non supply of the enquiry report to the petitioner-appellant giving him an opportunity to make a representation is not only violative of Section 9(4) of the rules, 1999 but also in violation of the principles of natural justice in view of the law laid down by the Hon'ble Apex Court.
Moreover, Rule 8 of U.P. Government (Discipline and Appeal), Rules 1999 provides that the Enquiry Officer shall not make any recommendation about the penalty whereas the recommendation has been made by the Enquiry Officer for major punishment cannot be said to be fair rather unjustified and unwarranted and is against the provisions of Rule 8 of Rules of 1999.
The Hon'ble Apex Court in Manoj Kumar vs. Government of NCT of Delhi and others, (2010) 11 SCC 702, observed that if any candidate furnishes false or incomplete information or withholds or conceals any material information in his application, he will be debarred from securing employment. Even if such an applicant is already appointed, his services are liable to be terminated for furnishing false information. But in the present case, the appellant had not given any false information or suppressed any relevant or material information. This is not a case where a wrong date was given to have a longer period of service and thereafter an attempt to justify it. The date of birth was recorded in the service book on the basis of age determined by CMO on the basis of medical examination.
Thus, in view of the aforesaid discussion, the law and settled legal proposition, we are of the view that the order dated 24.11.2008, passed by learned Single Judge is not sustainable in nature and the inquiry report is liable to be set aside.
Hence, the order dated 24.11.2008 is quashed and the enquiry report is hereby set aside. The special appeal succeeds and is allowed.
Respondents no. 2 to 5 are directed to hold an inquiry afresh in the light of the aforesaid discussion according to law. There shall be no order as to cost.
Order Date :- 28.9.2015 Puspendra