*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 18th December, 2012
+ LPA No.818/2012
LALIT MOHAN AGGARWAL ..... Petitioner
Through: Mr. Sudhir Nandrajog, Sr. Adv. with
Mr. Siddharth Aggarwal, Adv.
Versus
THE MANAGEMENT OF CENTRAL BANK
OF INDIA & ANR. ..... Respondents
Through: Mr. R.S. Mathur, Adv.
CORAM :-
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW RAJIV SAHAI ENDLAW, J
1. This intra-court appeal accompanied with an application for condonation of 444 days delay in preferring the same, impugns the order dated 05.08.2011 of the learned Single Judge, allowing W.P.(C) No.859/1988 preferred by the respondent Central Bank of India. The said writ petition was preferred impugning the award dated 23.11.1987 of the Industrial Adjudicator on the following reference:
"Whether the action of the management of Central Bank of India in terminating the services of Shri Lalit Mohan Aggarwal with LPA No.818/2012 Page 1 of 12 effect from 19.1.84 is justified? If not, to what relief is the workman concerned entitled?"
and setting aside the order of the respondent Bank of termination of services of the appellant and directing the respondent Bank to reinstate the appellant with continuity of service and full back wages.
2. The counsel for the respondent Bank appears on advance notice. The delay in filing the appeal is blamed on the advocate engaged by the appellant, who failed not only to appear before the learned Single Judge but also to inform the appellant of the writ petition of the respondent Bank having been allowed. It is further the case of the appellant that he remained under the impression that the writ petition was still pending since the respondent Bank continued to deposit amounts in payment of wages under Section 17B of the Industrial Disputes Act, 1947, even after the date the writ petition was allowed. Though the counsel for the respondent Bank is unable to comment on whether 17B wages were deposited in this Court even after the Bank‟s writ petition has been allowed, but the appellant has filed copies of his bank statement in this regard and we in the circumstances have LPA No.818/2012 Page 2 of 12 deemed it proper to condone the delay in preferring the appeal and have with consent heard the counsels finally on the appeal.
3. The respondent Bank had in the year 1968 invited applications inter alia for the post of „Clerk‟ and of which 25% were reserved for sons and daughters of employees of the respondent Bank who had put in fifteen years of uninterrupted service with the respondent Bank. The appellant applied in the said reserved category and was selected and joined the services of the respondent Bank on 08.04.1970.
4. Disciplinary proceedings were commenced against the appellant in the year 1973 on the charge of having fudged / forged the documents qua his educational qualification while seeking appointment in the respondent Bank. The Inquiry Officer and the Disciplinary Authority found the appellant guilty and dismissed the appellant from service. The departmental appeal was also dismissed on 26.05.1984.
5. The senior counsel for the appellant has drawn our attention to the Certificate of the Punjab University submitted by the appellant at the time of seeking employment in the Bank, inter alia certifying that the appellant had LPA No.818/2012 Page 3 of 12 passed the Matriculation Examination of the University held in March, 1969 in six subjects in the second division. As per the said Certificate, the appellant had obtained 84 marks out of 150 in the subject of English and 82 marks out of 150 in the subject of Mathematics and a total 439 marks out of 900 marks.
6. The senior counsel for the appellant has next invited out attention to the communication dated 06.04.1983 of the Punjab University to the Bank qua verification of qualification of the appellant and as per which the appellant had passed the Matriculation Examination of the University in third division with 64 marks out of 150 in the subject of English and 52 marks out of 150 in the subject of Mathematics and with a total of 339 marks out of 900 marks.
7. The learned senior counsel for the appellant has taken us through the Award dated 23.11.1987 of the Industrial Adjudicator in favour of the appellant. The said Award held:
(i) that the charge was frivolous, based on insufficient evidence since the original of the Certificate had not seen the light of the day. It LPA No.818/2012 Page 4 of 12 was / is the case of the appellant that he had handed over the original Certificate to the then Accounts Officer of the Chandni Chowk Branch of the respondent Bank at the time of joining. The respondent Bank had pleaded that it was not the practice of the respondent Bank to retain the original certificates and only authenticated copies of the certificates were retained in the records of the respondent Bank and the Industrial Adjudicator held that though it was the plea of the appellant that he had handed over the original to the Accounts Officer but the respondent Bank failed to produce the Accounts Officer who alone could admit or deny as to whether the original Certificate had been handed over to him or not. It was further held that the respondent Bank had not even made any enquiries in this regard from the said Accounts Officer;
(ii) that there was not an iota of evidence to prove that it is the appellant who had committed the forgery or had conspired in committing the forgery;
(iii) that there were defects in the verification report dated 06.04.1983 sent by the Punjab University. The total of the marks LPA No.818/2012 Page 5 of 12 mentioned therein worked out to 364 and not 339. Therefore no reliance could be placed thereon;
(iv) that even if it were to be assumed that the appellant had submitted a false Certificate and made a false declaration regarding the marks obtained by him, such act could not amount to gross misconduct within the meaning of para 19.5(j) of the Bipartite Settlement; and,
(v) that the appellant had hardly anything to gain by producing a forged Certificate to show inflated marks inasmuch as for the reserved category under which the appellant had applied there was no minimum percentage prescribed. The appellant even as per the verification report dated 06.04.1983 of the Punjab University had passed the Matriculation Examination with the subjects of English and Mathematics.
8. The learned Single Judge however in the impugned order dated 05.08.2011 has disagreed with the reasoning aforesaid of the Industrial Adjudicator observing/finding/holding:
LPA No.818/2012 Page 6 of 12
i) that there was no error in the verification report dated 06.04.1983 of the Punjab University inasmuch the total of the marks obtained in the subjects of English, Mathematics, Social Studies, Hindi and Animal Husbandry work out to 339 only and the marks mentioned therein of subject of Physiology and Hygiene were not to be included in the total. The conclusion of the Industrial Adjudicator was therefore clearly perverse; and,
ii) the Industrial Adjudicator had overlooked the cardinal principle that fraud and forgery unravels everything. Thus the very appointment of the appellant on the basis of forged Certificate was rendered void ab- initio;
Accordingly, the writ petition was allowed and the Award dated 23.11.1987 set aside.
9. The senior counsel for the appellant before us also has argued that in the absence of the original Certificate, there could be no finding of forgery. It is contended that in the face of the plea and evidence of the appellant, that at the time of joining the employment he had handed over the original to the LPA No.818/2012 Page 7 of 12 Accounts Officer and in the absence of the Bank producing the said Accounts Officer, it has to be necessarily held that the original is in possession of the respondent Bank and which the respondent Bank has failed to produce.
10. We however enquired from the senior counsel for the appellant whether the appellant disputes that the copy produced by the respondent Bank from its record is not the copy of the original, even if submitted by the appellant. The senior counsel confirms that the copy produced by the respondent Bank is the true copy of the original submitted and that the appellant stands by the same. That being the position, it does not matter whether the original is produced by the respondent Bank or not inasmuch as per the appellant also he had secured the appointment on the basis of the Certificate showing him to have secured 439 marks out of 900 marks and as detailed hereinabove.
11. The senior counsel for the appellant has next sought to poke holes in the verification report dated 06.04.1983 sent by the Punjab University in response to the queries of the Bank. It is again argued that the total therein of 339 is wrong.
LPA No.818/2012 Page 8 of 12
12. The learned Single Judge has however given cogent reasons dealing with the aforesaid challenge to the verification report dated 06.04.1983 and the appellant is unable to controvert the same. The reasoning given by the learned Single Judge is in consonance with the practice even otherwise prevalent in general, of the marks in the examination in the subsidiary subjects being only qualifying and being not counted in the ultimate result.
13. The senior counsel for the appellant has next contended that without it being established that it was the appellant who had forged the Certificate submitted by him, he could not have been meted out the punishment of dismissal from service. Though the said argument may appear attractive, it is bereft of logic. Admittedly, it was the appellant who produced the document which has been found to be at variance from the records of the University. The said document was admittedly produced to secure employment and in the absence whereof employment would not have been given to the appellant. The only person who could have any interest in fudging, forging and manipulating the document could be the appellant and no one else. The senior counsel for the appellant contends that mistake could also be that of the University. We have enquired, whether the LPA No.818/2012 Page 9 of 12 appellant in the last nearly 40 years since when the issue is pending has made any enquiries from the University or approached the University that the verification report dated 06.04.1983 sent by them is at variance with the Certificate issued by the University to him. The senior counsel for the appellant while affirming that the appellant has not made any such efforts contends that it was not necessary for him as the onus to prove that he had fudged the mark sheet was on the respondent Bank. Such argument demonstrates the falsity of the case set up. Any honest person, if had been meted out such fate by the University, would have immediately contacted the University and pointed out the discrepancy. There is nothing to suggest that the verification report dated 06.04.1983 is not as per the records maintained by the University. The only reason for the appellant not so approaching the University can be that the appellant knows the report to be correct.
14. The senior counsel for the appellant then contends that there could a mistake by the University in the certificate issued to the appellant, mentioning the marks in the subjects of English and Mathematics as 84 and 82 respectively instead of 64 and 52. However we have pointed out to the LPA No.818/2012 Page 10 of 12 senior counsel that the discrepancy is not only in the marks but even in the division obtained by the appellant. While the appellant in the Certificate produced by him shows him having secured second division, the verification report clearly shows the appellant to have obtained third division. There is again no answer thereto.
15. The senior counsel for the appellant has lastly contended that the appellant had no reason to fudge / fabricate the document and which argument had prevailed with the Industrial Adjudicator also. Attention in this regard is invited to the document at page 195 of the paper book, which though providing for the „Educational Qualifications for Recruitment to clerical cadre‟ had clarified that "For sons / daughters of employees the minimum qualification will be matriculation with English and Mathematics".
16. There is however inherent fallacy in the aforesaid argument. Even as per the appellant there was a selection procedure; in the said selection procedure, the better candidate would be selected. The appellant on the basis of the marks fudged, forged and fabricated by him portrayed himself as a better candidate over many others and got selected. The counsel for the LPA No.818/2012 Page 11 of 12 respondent Bank also affirms that the marks obtained were relevant and a criteria for selection.
17. We therefore do not find any merit in this appeal which is dismissed. We refrain from imposing any costs on the appellant.
RAJIV SAHAI ENDLAW, J CHIEF JUSTICE DECEMBER 18, 2012 „gsr‟ LPA No.818/2012 Page 12 of 12