Union Of India Through General ... vs Ashok Kumar Verma & Another
2017 Latest Caselaw 3562 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved on 5.5.2017
 
Delivered on 24.8.2017
 

 
Court No. - 3
 
Case :- SERVICE BENCH No. - 1474 of 2012
 
Petitioner :- Union Of India Through General Manager North Eastern Railway
 
Respondent :- Ashok Kumar Verma and another
 
Counsel for Petitioner :- Syed Ali Rehan,Brijesh Kumar Shukla,Narender Nath
 
Counsel for Respondent :- Abdul Moin,Amit Verma
 
connected with 
 
Case :- SERVICE BENCH No. - 1508 of 2012
 
Petitioner :- Union Of India Through General Manager North Eastern Railway
 
Respondent :- Ajeet Kumar Srivastava
 
Counsel for Petitioner :- Sayed Ali Rehan,Brijesh Kumar Shukla,Narendra Nath
 
Counsel for Respondent :- Praveen Kumar
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Virendra Kumar-II,J.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Shri B.K. Shukla and Shri Narendra Nath Srivastava, learned counsel for petitioners and Shri Abdul Moin, learned counsel for respondents.

2. Both the writ petitions have arisen from a common judgment and order dated 16.04.2012 passed by Central Administrative Tribunal (hereinafter referred to as "Tribunal") Lucknow Bench, Lucknow deciding Original Application No.114 of 2007 (Ashok Kumar Verma vs. Union of India and others) and 389 of 2007 (Ajeet Kumar Srivastava vs. Union of India and others) hence heard together and are being decided by this common judgment.

3. The relevant facts have minor differences in both the matters hence, we propose to refer the same separately.

Ashok Kumar Verma

4. He is applicant in Original application No.114 of 2007. Ministry of Railways, i.e. Railway Board, (hereinafter referred to as ''RB') vide Circular No.72-TCI/106/26 dated 20.8.1973 informed acceptance of recommendations made by Convention Committee, 1971 for providing booking facilities at Railway Station and communicated the same to all General Managers of Indian Railways. The recommendations made by Railway Convention Committee, 1971 in their third report, "Commercial and allied matters" and second report, "sub-urban services" state as under :-

"(i). Services of Volunteers from amongst student sons/daughters and dependents of Railway employees as Mobile Booking Clerks to work outside their college hours on payment of some honorarium during peak season or hot rush periods, such an arrangement would not only help the low paid employees to supplement their income but also generate among the students an urge to lend a helping hand to the Railway Administration in eradicating ticket-less travel;

(ii). Printing machines and other methods which can be pressed into service at Metropolitan and other busy Stations. Services of part time volunteers from amongst the sons and daughters of Railway employees to issue tickets at certain stations can be obtained. " (emphasis added)

5. RB accepted above recommendations and directed General Mangers as under:-

"As regards employment of Volunteers from amongst the student sons daughters and dependents of Railway employees during the period of rush in vogue on the Western Railway, attention is invited to Board's letter No.70-TCI/106/68 dated 17.10.1970 addressed to all Railways (other than Western, N.E. and N.F.) wherein they were asked to introduce similar procedure for controlling long queues in consultation with FA and CAO. A copy of this scheme is also enclosed for NE and NF Railways. Board desire that the scheme should be introduced at selected stations where long queues trend to develop during peak hours alleviate hardship to passengers keeping the observations of the Committee in view."

6. Keeping observations of Committee, it also recommended use of Printing Ticket Machines in Metropolitan and other busy stations.

7. Vide RB's wire-less dated 11.9.1981, engagement of Volunteers Booking Clerks (hereinafter referred to as 'VBCs') was directed to be continued by General Managers of Indian Railways. Thereafter, by circular dated 21.4.1982, issued by RB, it proposed regularisation of such VBCs. Para 2 of said letter reads as under :-

"2. The question of regularisation of these volunteer Booking Clerks through screening by a Departmental Committee for absorption on the Railways was again discussed by the NFIR during the PNM meeting held with the Board on 23rd and 24th December, 1981. After taking into account all aspects of the case the Ministry of Railways have decided that these volunteer/Mobile Booking Clerks who have been engaged on the various Railways on certain rates of honorarium per hour or per day may be considered by you for absorption against regular vacancies provided that they have the minimum qualification required for direct recruits and have put in a minimum of 3 years service as Volunteer/Mobile Booking Clerks. The Screening for their absorption should be done by a Committee of Officers including the Chairman or a Member of the Railways Service Commission concerned." (emphasis added)

8. Subsequently, RB communicated discontinuance of said scheme vide circular dated 17.11.1986 but further said that where-ever engagement of additional hands to meet rush of work is inescapable, concerned Railway may adopt one or more methods as suggested in para 2 and 3 of the said letter which read as under:

"2. The Board also desire that where engagement of additional hands to meet with spurt in or rush of work is considered inescapable in future in exigencies of services railway may adopt one or more of the following methods depending upon the requirement and local conditions.

(i) Re-employed temporarily regular group ''C' staff rendered surplus and considered suitable for such assignments.

(ii) Subject to suitability engage on a purely temporary basis persons from panel furnished by RB for the appointment in group ''C' posts in similar category without confirming on such persons a right for regular appointment merely by reason of this temporary engagement.

(iii) Engage retiral railway employees not above the age of 60 years for a period not exceeding 3 months after obtaining the approval of Board will in time.

(iv) Willing and suitable group ''C' staff of other wings of Comml. Branch and also of other Departments, can be utilised where feasible by payment of suitable honorarium where necessary.

3. Railway Administration should clearly note that in future in no circumstances should they engage persons on daily or honorarium rate basis. Any violation of these instructions should be viewed seriously and responsibility fixed on individuals and action taken against them."

9. In the matter of cut off date for regularisation, some dispute arose before Tribunal (Principal Bench), New Delhi in Original Application No.1174 of 1986 (Neera Mehta and others vs. Union of India and others) decided on 26.8.1987 where-against Special Leave Petition was dismissed by Supreme Court, hence, RB issued Circular dated 06.02.1990 observing that cut off date now has been substituted by 17.11.1986 instead of 14.8.1981, hence, Mobile Ticketing Clerks (hereinafter referred to as 'MBCs') engaged before 17.11.1986 may be considered for absorption in regular employment against regular vacancies, subject to other conditions stipulated in the letters dated 21.4.1982 and 20.4.1985.

10. Ashok Kumar Verma (applicant-respondent) in Writ Petition No. 1474 (S/B) of 2014 (hereinafter referred to as (''Ist W.P.') claimed to be engaged as MBC on 5.3.1984 by Divisional Commercial Inspector, Sitapur in North Eastern Railway. He worked from 8.3.1984 to 31.07.1986 for a total period of 277 days. Certificate of engagement relied by applicant respondent in Ist W.P. shows his engagement as under :-

Year Days

1984 65

1985 151

1986 35

Total :- 251

11. He was re-engaged by order dated 29.08.1990 and joined at Badshahnagar on 03.09.1990. Ashok Kumar Verma was conferred temporary status with effect from 01.01.1991. However, he was served with a charge-sheet dated 03.12.1993 alleging that he had obtained appointment on the basis of a fake working certificate. The aforesaid charge-sheet was withdrawn and another charge-sheet was issued on 25.03.1998 containing same charges. He challenged charge sheet dated 25.3.1998 in Original Application No.402 of 1998 at Central Administrative Tribunal, Allahabad Bench, Allahabad which was dismissed on 16.05.2001. Ashok Kumar Verma, then preferred Writ Petition No.28346 (S/B) of 2001 which too was dismissed on 01.03.2005. Disciplinary proceedings thereafter commenced wherein Ashok Kumar Verma participated. Final report was submitted by Sri Mohd. Mustaq Ali on 31.08.2005 holding charges of fraud and manufacturing of documents, proved, against applicant-respondent in Ist W.P. Pursuant thereto, an order of removal was passed on 03.10.2006.

Ajeet Kumar Srivastava

12. Similarly, coming to the matter of Ajeet Kumar Srivastava, applicant respondent no.1 in Writ Petition No.1508 (S/B) of 2012 (hereinafter referred to as IInd W.P.), he claimed to have worked as 'M.B.C.' at Campeir Ganj Station from 08.03.1984 to 31.07.1986 i.e. for 353 days. He was re-engaged on 3.4.1991 on temporary basis w.e.f. 29.08.1992. However, a charge-sheet dated 3.12.1993 was submitted alleging that he obtained appointment on the basis of a fake certificate. The said charge-sheet was withdrawn on 29.03.1998 and another was issued on 25.03.1998. Applicant respondent in IInd W.P. challenged charge sheet in Original Application No.1144 of 1998 before Tribunal, Allahabad Bench. It was dismissed on 16.05.2001. Writ Petition was also dismissed on 01.03.2005. Thereafter, applicant respondent in IInd W.P. participated in oral enquiry. Enquiry Officer submitted report holding charge proved and thereafter order of removal was passed on 03.10.2006.

13. Tribunal has allowed both Original Applications by impugned judgment inter alia, on the following ground :

(i) relevant documents were not supplied ;

(ii) Two substantial witnesses were not produced for examination in enquiry though statement of Raghunath Sahay, retired Station Superintendent, recorded in preliminary enquiry, was relied on.

14. Shri B.K. Shukla, learned counsel for petitioners has submitted that applicant respondents were charged of obtaining appointment on fake and forged educational documents. Since fraud vitiates the very appointment hence, question of any infirmity in departmental enquiry with regard to misconduct in employment as such will not apply in true sense. It is a case where the very appointment was obtained by applicant-respondent on the basis of fraudulent and fake educational certificate. Once it is proved that such certificates were fake and forged, no leave could have been granted to the beneficiaries thereof. He placed reliance on the judgment in Management of State Bank of India vs. Smita Sharad Deshmukh and another (2017) 4 SCC 75. He has also submitted written arguments, wherein he has referred to certain authorities with reference to the proposition that fraud and fictitious acts vitiate everything. Reliance is placed on Ram Chandra Singh vs. Savitri Devi and others 2003 (8) SCC 319 ; Satwati Deswal vs. State of Haryana and others 2009 (27) LCD 1711 ; Kamla Charan Mishra vs. State of U.P. and others 2009 (27) LCD 130 ; Neeraj Bharadwaj vs. Marathwada Institute of Technology Engineering College, Bulandshahr and others 2002 (1) LBESR 1042 (All.).

15. With regard to non examination of crucial witness as observed by Tribunal, learned counsel appearing for petitioners contended that Enquiry Officer has no power to ensure attendance of witnesses and if there is some evidence to prove charges, the mere fact that one or two witnesses were not summoned will make no difference. On this proposition he relied on Sudhendra Narayan Sinha vs. Union of India and others I.C. 1968 Lab. 1585; Tata Oil Mills Company Limited vs. Workmen AIR 1965 SC 155 ; State of Andhra Pradesh and others vs. Sree Rama Rao AIR 1963 SC 1723 and State of Haryana and another vs. Rattan Singh AIR 1977 SC 1512.

16. Learned counsel Sri Shukla, also stressed upon that personal hearing was given to defence Assistant and applicant respondents were also given opportunity to submit their defence documents, if any, but they submitted no proof of deposit or withdrawal of security amount of Rs.300/- and their names were fraudulently got entered in Attendance register but missing in muster roll. He also placed reliance on a Single Judge judgment of this Court in Writ petition No.7962 (S/S) of 2010 Sri Ram @ Bhikam Singh vs. Chairman-cum-Managing Director, U.P. Power Corporation Limited and others connected with Writ Petition No. 3183 (S/S) of 2010 decided on 23.12.2015.

17. Shri Abdul Moin, learned counsel on behalf of applicant respondent contended that admittedly disciplinary enquiry was not conducted in accordance with Rules, adequate opportunity of hearing was not afforded to applicant respondents and findings of Tribunal to this effect have not been shown incorrect. Hence, punishment has rightly been set aside by Tribunal, and both writ petitions deserves to be dismissed as petitioners have failed to show any error apparent on the face of record.

18. From the judgment impugned, the very first contention of learned counsel for petitioner that applicant-respondents were proceeded against for filing fake and forged certificates of educational qualifications is shown clearly erroneous and contrary to record. Charge sheet issued to applicant respondent in Ist W.P. contains a single charge which reads as under :-

^^Jh v'kksd dqekj oekZ] ,[email protected]'kkguxj ds fo:) fnukad 17&11&86 ls iwoZ dk ikVZ Vkbe chlh ds :i es dk;Z djus dk QthZ izek.k i= izLrqr dj ,echlh dh ukSdjh izkIr djus dk vkjksi%&

1& Jh v'kksd dqekj oekZ] ,[email protected] gjxkao LVs'ku ij ,[email protected] ds :i esa dk;Z djus dk ¼o"kZ 1984 esa 65 fnu] o"kZ 1985 esa 151 fnu] o"kZ 1986 es 35 fnu½ QthZ izek.k i= izLrqr dj lqfu;ksftr tkylkth djrs gq, dk;kZy; vkns'k la[;k [email protected]@,[email protected],[email protected][[email protected] fn%28&9&90 ds varxZr ,echlh dk in izkIr fd;kA

tcfd Jh oekZ us o"kZ 1984] 1985 rFkk 1986 esa gjxkao LVs'ku ij ,echlh ds in ij dHkh Hkh dk;Z ugha fd;k Fkk blfy, Jh oekZ ds ukSdjh ij yxk, tkus ds ik= ugha FksA

2& Jh v'kksd dqekj oekZ us vius }kjk izLrqr QthZ dk;Zfnol izek.k i= ds iqf"V RkFkk ;FkkFkZrk fl) djus gsrq gjxkao LVs'ku ds mifLFkr iaftdkvksa ds ekg ebZ 1984 rFkk uoEcj] fnlEcj 1985 esa xyr ,oa Hkz"V rjhds ls vius uke dh Hkh izfof"V djk;kA

bl izdkj Jh oekZ QthZ izek.k i= izLrqr djus RkFkk gjxkao LVs'ku dh mifLFkfr iaftdkvksa ds dqN ekgksa es vius uke dh QthZ izfof"V djkus] lqfu;ksftr diViw.kZ tkylkth djus ds nks"kh ik, x,A bl laca/k esa budh lR;fuf"Bk] drZO;fu"Bk lafnX/k izrhr gksrh gSA budk mijksDr vkpj.k Hkkjrh; jsy deZpkjh vkpkj lafgrk fu;ekoyh 1966 ds fu;e 3 ¼T½ ¼T½ ¼TT½ ,oa ¼TTT½ ds fo:) ik;k x;kA^^

" Charge of getting service as MBC by producing forged certificate to work as Part time BC before 17-11-86 against Shri Ashok Kumar Verma, MBC/ Badshah Nagar:-

1. Shri Ashok Kumar Verma, MBC / got the post of MBC vide Office Order No. C/ 431/ MBC/ DRM/ Lucknow/ 79 dated 28-9-90, committing well planned fraud by producing forged certificate for working as MBC/ at Hargaon station (65 days in year 1984, 151 days in year 1985, 35 days in year 1986).

Whereas Shri Verma had never worked at Hargaon station in the year 1984, 1985 and 1986, therefore Shri Verma was not eligible for recruitment.

2. Shri Ashok Kumar Verma, in order to prove and establish the genuineness of the fake working days certificate produced by him, even got entered his name by wrong and corrupt means in the attendance registers of Hargaon station for the month of May 1984 and November, December 1985.

In this manner, Shri Verma has been found guilty of producing fake certificate, getting his name entered in few months of the attendance registers of Hargaon station and committing well planned forgery. In this regard, his integrity and dutifulness seems doubtful. The said conduct of him has been found to be in violation of Rule 3 (T) (T) (TT) (TTT) of Indian Railways Servant Conduct Code Rules 1966."

(English Translation by Court)

19. Details of the fact of misconduct in Annexure 2 (page 2) of charge sheet also say that applicant respondent Ashok Kumar Verma in Ist W.P. submitted an application for re-employment as part time Ticket Collector along with photo copy of certificate showing his working from 8.2.1984 to 31.1.1986 for a period of 277 days. On enquiry, the said working certificate was found forged for the reason that the said certificate states that he was employed at Hargaon Railway Station. The Station Superintendents of Hargaon Station working at that time i.e. Sri Ram Das and Sri Yamuna Prasad, both in their statements have said that neither applicant-respondent worked during the aforesaid period nor any such certificate was issued to him. The name of applicant respondent was found entered in Attendance register of the months of May 1994 and November, and December, 1985 but in fact finding enquiry, Station Superintendent, Ram Das who was working at the time of enquiry at Itaunja stated that neither he was acquainted with Ashok Kumar Verma nor he had worked at Hargaon as Ticket Collector when he was posted there. Similarly, Sri Yamuna Prasad, the then Station Superintendent, Hargaon in his statement dated 08.09.1992 said that he worked as Station Superintendent, Hargaon Station from 9.11.1984 to 31.12.1988 and during this period Ashok Kumar Verma never worked at the said station. Regarding entry in Attendance register in November and December 1985, Shri Yamuna Prasad said that the said entries were not made by him and subsequently must have been made by somebody else and this shows that applicant respondent in collusion with some other got entries illegally made in attendance register hence, despite having not worked as 'M.B.C.' earlier, produced false and forged working certificate hence, he was not entitled to appointment as 'M.B.C.' The exact allegation contained in Annexure 2 of charge sheet then said as under:-

^^bl izdkj Jh v'kksd dqekj oekZ] [email protected] dk;Z fnol izek.k i= izLrqr dj ,echlh dk in izkIr djus dk dqfRlr diViw.kZ d`R; fd;k vkSj bl gsrq og nks"kh ik, x,A bl laca/k es budh lR;fu"Bk] drZO;fu"Bk lafnX/k izrhr gksrh gSA budk ;g vkpj.k Hkkjrh; jsy deZpkjh vkpkj lafgrk fu;ekoyh 1966 ds fu;e 3 ¼T½ ¼T½ ¼TT½ ¼TTT½ ds fo:) ik;k x;kA^^

"In this manner, Shri Ashok Kumar Verma committed the fraudulent act of getting the post of MBC by producing fake/ forged working days certificate and he has been found guilty of the same. In this regard, his integrity and dutifulness seems doubtful. The said conduct of him has been found to be in violation of Rule 3 (T) (T) (TT) (TTT) of Indian Railways Servant Conduct Code Rules 1966."

(English Translation by Court)

20. A similar charge sheet was issued to applicant respondent in IInd W.P. and the statement of misconduct contained in Annexure 1 to the charge sheet reads as under:

^^Jh vthr dqekj JhokLro] ,[email protected][kiqj ds fo:) fnukad% 17&11&86 ls iwoZ dk ikVZ Vkbe chlh ds :i es dk;Z djus dk QthZ izek.k i= izLrqr dj ,echlh dh ukSdjh izkIr djus dk vkjksi%&

Jh vthr dqekj JhokLro] ,[email protected][kiqj us dEis;jxat LVs'ku ij ikVZVkbe chlh ds :i es dk;Z djus dk ¼vof/k01&8&83ls 30&9&85½ QthZ izek.k i= izLrqr dj lqfu;ksftr tkylkth djrs gq, dk;kZy; vkns'k la0 [email protected]@ ,[email protected],[email protected][kuÅ@79 fnukad 03&4&91 ds varxZr ,echlh dk in izkIr fd;kA

tcfd bUgksus bl vof/k 01&8&83 ls 30&9&85 ds e/; dHkh Hkh dEis;jxat LVs'ku ij ikVZVkbe Ckhlh] ,echlh ds in ij dk;Z ugha fd;k FkkA blfy, Jh vthr dqekj JhokLro] ,echlh dh ukSdjh ij yxk, tkus ds ik= ugha FksA

bl izdkj Jh vthr dqekj JhokLro QthZ izek.k i= izLrqr dj ,e0ch0lh0 dk in izkIr djus dk lqfu;ksftr tkylkthiw.kZ d`R; djus ds nks"kh ik, x,A bl laca/k es budh lR;fu"Bk] drZO;fu"Bk lafnX/k ik;h x;hA budk ;g vkpj.k Hkkjrh; jsy deZpkjh vkpkj lafgrk fu;ekoyh 1966 ds fu;e 3¼T½ ¼T½] 3 ¼T½ ¼T½ ,oa 3 ¼T½ ¼TT½ ds fo:) ik;k x;kA^^

" Charge of getting service as MBC by producing forged certificate to work as Part time BC before 17-11-86 against Shri Ajeet Kumar Srivastava, MBC/ Gorakhpur:-

Shri Ajeet Kumar Srivastava, MBC / Gorakhpur, got the post of MBC vide Office Order No. C/ 431/ MBC/ DRM/Lucknow/79 dated 03-4-91, committing well planned fraud by producing forged certificate for working as part-time BC at Campierganj station (Period 01-8-83 to 30-9-85).

Whereas he had never worked as Part time BC, MBC at Campierganj station during 01-8-83 to 30-9-85. Therefore Shri Ajeet Kumar Srivastava was not eligible for being recruited as MBC.

In this manner, Shri Ajeet Kumar Srivastava has been found guilty of committing the act of well planned forgery for getting the post of MBC by producing fake/ forged certificate. In this regard, his integrity and dutifulness has been found doubtful. This conduct of him has been found to be in violation of Rule 3 (T) (T) (TT) (TTT) of Indian Railways Servant Conduct Code Rules 1966."

(English Translation by Court)

21. The imputation of misconduct in detail, contained in Annexure 2 to the charge sheet, shows as under:-

^^jsy ifj"kn ds i=kad la0 bZ ¼,uth½@[email protected]@vkjlh&[email protected] fn% 17&11&86 ds vk/kkj ij ftu vkaf'kd fVdV ckcwvksa dks dk;Z ls gVk fn;k x;k FkkA mUgha vkaf'kd fVdV ckcqvksa dks jsy ifj"kn ds i=kad [email protected] ¼,uth½@[email protected]@vkjlh&[email protected] fn% 06&2&90 ds vuqlkj iqu% dk;Z ij yxkus dk fu.kZ; fy;k x;kA

Jh vthr dqekj JhokLro us eaMy jsy izcU/kd ¼ok½@ y[kuÅ dks lEcksf/kr vius fn% 7&8&90 ds vkosnu i= esa dk;Zfnol 352 fnu n'kkZ;k gS vkSj blls lacaf/kr izek.k i= dh Nk;kizfr esa dSfEi;jxat LVs'ku ij 01&8&83 ls 30&9&85 ds e/; dqy 353 fnu va'kdkfyd fVdV ckcw ds :i esa dk;Z djuk n'kkZ;k gSA

bl izek.k i= ij Jh j?kqukFk lgk; rRdkyhu LVs'ku v/kh{[email protected];jxat dk gLrk{kj n'kkZ;k x;k gS tks lsokfuo`r gks pqds gSA Jh j?kqukFk lgk; ls muds fuokl LFkku ij Jh gkfen vyh] dSfcueSu ds lkFk lEidZ fd;k x;kA vius c;ku esa Jh j?kqukFk lgk; us Li"V fd;k fd Jh vthr dqekj JhokLro ds i{k es tkjh ;g dk;Zfnol izek.k i= muds }kjk tkjh ugha fd;k x;k Fkk vkSj u gh bl ij mudk gLrk{kj gS vkSj u gh muds dk;Zdky esa dSfEi;jxat LVs'ku ij Jh vthr dqekj JhokLro us dHkh Hkh dk;Z fd;k gSA

Jh j?kqukFk lgk; ds bl c;ku ls Li"V gS fd Jh vthr dqekj JhokLro }kjk izLrqr dk;Zfnol izek.k i= tkyh ,oa QthZ gSA

blds dk;Zfnol ds vkSj lR;kiu gsrq dSfEi;jxat LVs'ku ls eaMy dkfeZd dk;kZy; y[kuÅ Hksth x;h ekg Qjojh &84] vizSy&84 ls tuojh&85 rFkk ebZ&1985 ls flrEcj&1985 rd dh eLVj'khVksa dh tkap dh x;h vkSj ik;k x;k fd Jh vthr dqekj JhokLro dk uke eLVj 'khVksa esa ugh gSA blls bl rF; dh vkSj iqf"V gksrh gS fd Jh JhokLro us dSfEi;jxat LVs'ku ij 17&11&86 ls iwoZ dHkh Hkh ,echlh ds :i esa dk;Z ugha fd;k gSA Jh JhokLro }kjk of.kZr vof/k dk dksbZ Hkqxrku mudks jsy iz'kklu }kjk ugha fd;k x;k ftldh iqf"V Jh eks0vehu] dk;kZf/k ¼VSª[email protected]½ y[kuÅ }kjk iznRRk izek.k i= ls gksrh gSA^^

^^mijksDr leLr rF; bl ckr dk lk{; izLrqr djrs gSa fd Jh vthr dqekj JhokLro us 17&11&86 ls iwoZ dHkh Hkh ,e0ch0lh0 ds :i esa dSfEi;jxat LVs'ku ij dk;Z ugha fd;k Fkk vkSj u gh og ,echlh ds in ij ukSdjh izkIr djus ds ik= gh Fks ysfdu bUgksus cnfu;rhiw.kZ rFkk dqfRlr bjknksa ls xzflr gksdj dk;Z fnol dk QthZ izek.k i= izLrqr dj ,e0ch0lh0 dk in izkIr fd;k vkSj Jh JhokLro bl vksj vkifRrtud voS/k dk;Z gsrq nks"kh ik, x,A bl laca/k es budh lR;fu"Bk] drZO;fu"Bk lafnX/k izrhr gksrh gSA

budk mijksDr vkpj.k Hkkjrh; jsy deZpkjh vkpkj lafgrk fu;ekoyh 1966 ds fu;e 3 ¼T½ ¼T½] 3 ¼T½ ¼TT½ ,oa 3 ¼T½ ¼TTT½ ds fo:) ik;k x;kA^^

` "On the basis of letter No. E(NG)/ TT/ 86/ RC-3/ 87 dated 06-2-90 of Rail Parishad, a decision has been taken to reemploy the part time ticket clerks who have been removed from the employment on the basis of letter No. of Rail Parishad on the basis of letter No. E(NG)/ TT/ 86/ RC-3/ 86 dated 17-11-86.

Shri Ajeet Kumar Srivastava, in his application dated 7-8-90 addressed to the Division Railway Manager(Va)/ Lucknow has mentioned 352 working days and in the xerox copy of the certificate related to it, has shown that he had worked for total 353 days between 01-8-83 to 30-9-85 at Campierganj station as part time ticket clerk.

Signature of Shri Raghunath Sahay, the then Station Superintendent, who has retired, has been shown on this certificate. Shri Raghunath Sahay has been contacted at his residence through Shri Hamid Ali, Cabinman. In his statement, Shri Raghunath Sahay has clarified that this working days certificate issued in favour of Shri Ajeet Kumar Srivastava has not been issued by him. Neither it bears his signature nor Shri Ajeet Kumar Srivastava has ever worked at Campierganj station during his tenure.

It is evident from the statement of Shri Raghunath Sahay that the working days certificate produced by Shri Ajeet Kumar Srivastava is forged and fake.

For further verification of his working days, muster-sheets for the months of February-84, April-84 to January-85 and May-1985 to September 1985, sent from Campierganj station to Division Personnel Office, Lucknow had been checked and it was found that name of Shri Ajeet Kumar Srivastava is not there in the muster sheets. With this, the fact that Shri Srivastava has never worked as MBC at Campierganj station before 17-11-86 gets proved further. Any payment against the period mentioned by Shri Srivastava has not been made by the Railway Administration to him which gets proved by the certificate issued by Shri Mohd. Ameen, Karyadhi (Traffic/Bill)"

All the aforementioned facts puts forward the evidence that neither Shri Ajeet Kumar Srivastava has ever worked as M.B.C. before 17-11-86 at Campierganj station nor he was even eligible to get the employment as MBC but being tainted with maligned and ill-hearted intentions, he grabbed the post of MBC producing fake certificate and Shri Srivastava has been found guilty of this highly objectionable illegal act. In this regard his integrity and dutifulness appears doubtful.

Aforementioned conduct of him has been found to be in violation of Rule 3 (T) (T) (TT) (TTT) of Indian Railways Servant Conduct Code Rules 1966."

(English Translation by Court)

22. The charge sheets issued to applicant respondents in both the matters give details of documentary and oral evidence. In respect of applicant respondent in Ist W.P., both documentary and oral evidence mentioned in Annexures 3 and 4 of charge sheet, read as under:-

(i) Attendance register of Hargaon station of March 1984, November and December 1985.

(ii) Applications submitted by Ashok Kumar Verma for appointment as part time Ticket Collector ;

(iii) Working days certificate submitted by Ashok Kumar Verma verifying working of his engagement for 277 days at Railway Station Hargaon of Station Superintendent ;

(iv) Statement dated 8.9.1992 of Sri Yamuna Prasad, Station Superintendent, Hargaon ;

(v) Statement dated 8.9.1992 of Sri Ram Das ;

(vi) Statement of Ashok Kumar Verma recorded on 14.9.1992 and 2.10.1992

(vii) Railway Board letter dated 17.4.1986 ;

(viii) Railway Board letter dated 6.2.1990

(ix) Office order dated 29.8.1990 certificate issued by Shri Mohd. Amin working in the office of Divisional Railway Manager, (Personnel) is that he did not prepare any certificate for payment to Ashok Kumar Verma.

(x) Muster sheets of Hargaon station of March 1984 , November and December, 1985

Oral Evidence :-

(I) V.K. Pandey, Vigilance Inspector, Gorakhpur

(2) V.S. Pandey, Chief Vigilance Inspector, Gorakhpur

(3) Yamuna Prasad, Station Superintendent, Hargaon;

(4) Ram Das, Station Superintendent, Itaunja;

23. Similarly, in relation to applicant-respondent in IInd W.P., documentary and oral evidence include following:-

Documentary Evidence

(I) Application submitted by Ajeet Kumar Srivastava for part time Ticket Collector

(2) Certificate of working days ;

(3) Muster sheets of Campier Ganj, Railway Station of the period 1983 to 1985.

(4) Attendance and payment voucher certificate issued by Divisional Personnel Office that no payment was made to Ajeet Kumar Srivastava

(5) Statement of Ajeet Kumar Srivastava recorded on 4.9.1992 and 30.11.1992

(6) Railway Board Circular dated 17.11.1986

(7) Railway Board Circular dated 6.2.1990 ;

(8) Office Order dated 3.4.1991

(9) General Manager (Personnel) letter dated 1.3.1990

Oral Evidence

1. Raghunath Sahay, former Station Superintendent, Hargaon

(2) Ali Hamid Manager.

(3) V.K. Pandey, Vigilance Inspector, Gorakhpur.

24. Admittedly the documents mentioned at Serial Nos.1,2,6,7,8,9 in the charge sheet were not supplied to applicant respondent in Ist W.P. since these documents were not found available with the petitioner. In respect of documents at Serial No. 3 i.e. working certificate, which was alleged to be fake and fictitious, it was also not made available.

25. Thus only documents supplied to applicant-respondent in Ist W.P. were those at Serial No. 4, 5, 10 and 11 i.e. statements of Sri Yamuna Prasad and Sri Ram Das, certificate given by Mohd. Amin and muster sheets of Hargaon Station.

26. Similarly, though four witnesses were named in charge sheet but none was examined or allowed cross examination, to prove documents and charges against applicant-respondent in Ist W.P. The enquiry report, however, relied on statements of Ram Das and Yamuna Prasad recorded in preliminary enquiry and cited as documentary evidence at Serial No. 4 and 5 in the charge sheet of applicant-respondent in Ist W.P., despite the fact that none of these witnesses were brought in during the course of regular enquiry to own the aforesaid statements allegedly recorded in preliminary enquiry and also to be available to applicant-respondent for cross examination. It is said Yamuna Prasad died in 1993. However, admittedly, Ram Das was alive. He was not examined at all in regular enquiry, still his exparte statement recorded in preliminary enquiry has been relied to hold charge proved against applicant-respondent in Ist W.P. by Inquiry Officer in his enquiry report.

27. Chief Vigilance Inspector, Shri V.S. Pandey, also did not turn up for deposition. Vigilance Inspector, Shri V.K. Pandey was examined on 19.1.2005 but his statement was not completed and he did not turn up at all after 19.1.2005. In the result, none of the witnesses cited in support of charge sheet of applicant-respondent no.1 were examined during course of regular enquiry before Enquiry Officer, still statements of such witnesses allegedly recorded in preliminary enquiry held on 8.9.1992 have been relied which is wholly impermissible in law.

28. On the contrary, applicant-respondent produced two witnesses but their statements have been discarded only on the ground that they were produced by employees concerned and would naturally support him.

29. Then coming to 2nd W.P., here also, we find that star witness Raghunath Sahay, (retired) Station Superintendent was not produced during regular enquiry at all. Though, it is said that he made a statement that he did not issue any certificate of working to applicant-respondent in 2nd W.P. but this statement was not owned by said witness before Inquiry Officer and he was also not available for cross examination by employee concerned. It has also been found by Tribunal that none of the relied on documents from Serial No.1 to 9 were supplied to applicant- respondent in 2nd W.P. and non-supply of aforesaid document was admitted before Tribunal. The relevant extracts of paras 15 and 35 in this regard are reproduced as under :

15. "The relevancy of those documents was admitted but the documents at Sl. Nos. 1 to 9 were not supplied."

35. "As far as non-supply of relevant documents is concerned, its non-supply has been conceded. The relevancy of these documents have also not been denied."

(emphasis added)

30. It is thus evident from record that entire enquiry was conducted in flagrant violation of principles of natural justice and in most illegal manner. Mere cry on the part of petitioner of forgery and manipulation which is a question of fact, having not been proved before Inquiry Officer, petitioner's counsel cannot be allowed to rely on its own ex-parte evidence, which has not been proved before Inquiry Officer by producing witnesses for owing their statement allegedly recorded in preliminary inquiry. Opportunity was also not allowed to applicant-respondent for cross examination of such witnesses. 

31. In both the cases, non-supply of relied on documents and denial of cross examination of witness, since they did not appear at all is evident and admitted.

32. The matter does not rest here. Disciplinary authority after perusal of material and enquiry report found that charges were not proved. The said report was forwarded by disciplinary authority to General Manager (Vigilance), North Eastern Railway, Gorakhpur for advise/recommendation. Vide letter dated 1.9.2005 (Vigilance), gave otherwise opinion whereupon disciplinary authority changed its opinion and passed 'Removal' order dated 3.10.2006. It shows that disciplinary authority instead of acting independently by applying its own mind, guided itself with the instructions of vigilance and worked under the dictates of Vigilance Authority though its action of passing order of punishment was a quasi-judicial function and it was supposed to exercise its own independent decision but that has not been done. Since order has been passed under dictates of Vigilance Authority, this is another ground found with Tribunal for setting aside order of punishment. For this purpose, Tribunal has relied upon Supreme Court's authority in Nagaraj Shivarao Karjagi vs. Syndicate Bank 1991 SCC (L& S) 965 .

33. Learned counsel for petitioners vehemently argued that here that parity with departmental proceedings has been wrongly drawn by Tribunal inasmuch as here is a case where very appointment of applicant-respondent was under challenge therefore, parity with departmental proceeding and procedure applicable thereto could not have been applied. The submission is, thoroughly, fallacious and contrary to record. We find from record that petitioners themselves initiated departmental enquiry against applicant-respondent under provisions of Railway Service (Discipline and Appeal), Rules, 1968 (hereinafter referred to as 'Rules, 1968') and order of punishment itself has been passed under Rule 6 of Rules, 1968. The order of 'Removal' also shows that applicant-respondent had remedy of appeal under Rule 18 of Rules, 1968 against punishment order of 'Removal'. To suggest that procedure contemplated for departmental enquiry strictly should not have been applied in the case in hand is thoroughly misconceived for the reason that enquiry in the case at hand has been conducted by petitioners evidently under the provisions of Rules, 1968. Here appointment of applicant-respondents has not been cancelled but they have been imposed punishment of Removal under Rules, 1968.

34. Learned counsel for petitioners also contended that documents pertaining to work experience submitted by applicant-respondents were genuine, this onus lay upon applicant-respondents who failed to discharge the same. Submission is, thoroughly, misconceived. The charge itself admitted that in attendance register, applicant-respondent's attendance was marked but petitioner claim that the said attendance register were falsely prepared. No evidence to prove this allegation was adduced by petitioner before Inquiry Officer at all. If that be so, certificate issued by authority concerned for which also no otherwise evidence was adduced during the course of regular enquiry, could not have been disbelieved by petitioners since it is petitioner who miserably failed its own allegation.

35. Now coming to the authorities relied by learned counsel for petitioner, the first decision is Sudhendra Narayan Sinha vs. Union of India (Supra). Reliance is placed on para 10 of aforesaid judgment wherein learned Single Judge of Calcutta High Court has observed that despite request made by disciplinary authority to the employer of Hemendra Narayan Sinha, (brother of delinquent employee in that case), the employer of Hemendra Narayan Sinha did not spare him. Hence, his attendance could not be ensured to depose before Inquiry Officer. Court observed that employer of witness did not spare him, hence it was beyond the power of Enquiring Officer to compel him to be present by any legal process in a disciplinary proceeding. We find that aforesaid observation cannot be read in isolation as has been attempted by learned counsel for petitioners. Non-appearance of Hemendra Narayan Sinha, (brother of delinquent employee) was not found material for vitiating inquiry proceedings and for this purpose, further reasons have been stated in paras 11 and 12 of judgment which reads as under:-

11. " It is true that the Enquiring Officer also observed in his enquiring report that further examination of the brother of the delinquent servant was not considered necessary as he admitted the fact of the use of his pass by his brother who earlier made a statement in writing to the Travelling Ticket Examiner concerned to this effect. But this could not have caused any prejudice to the petitioner because the punishment was not meted out to him on this admission alone. The enquiry was duly held and as a result of such enquiry the charge was found to have been established against the petitioner and then penalty was imposed upon him after giving him reasonable opportunity.

12. Apart from this, it was open to the petitioner to cite his own brother as a witness and examine him at the enquiry proceeding as a defence witness but this he did not do. After all he was his own brother and it is really difficult to believe that he could not persuade his own brother to be present at the enquiry proceeding and to give evidence. For all these reasons, I am unable to hold that there was any violation of principles of natural justice by not examining the brother of the petitioner. " (emphasis added).

36. In the above cases, Court found that delinquent employee himself admitted in his petition and also before Inquiry Officer that his brother took away and use his pass for journey to Bombay with his mother in law, hence, statement made by his brother was found admissible by Enquiry Officer. The aforesaid judgment has no application in the case in hand and does not help petitioners at all.

37. The other authorities are on the principle that a forged and fictitious act vitiates everything. It is well established principle of law, but here, the very allegation of fraud and alleged fictitious act i.e. charge levelled against applicant-respondent could not be proved by petitioners by adducing any cogent and credible evidence before Inquiry Officer. The entire attempt of petitioners is that its ex-parte enquiry conducted by Vigilance authorities and conclusion drawn by them should be taken as a self conclusive evidence to uphold punishment imposed upon applicant-respondent and mere fact that no evidence could be led before Inquiry Officer or that even relevant relied document could not be supplied to applicant-respondent should not be given any weightage at all. This argument is against all canons of law and well established principle of natural justice as applicable in a departmental enquiry.

38. In High Court Of Punjab And Haryana vs Amrik Singh 1995 Suppl. (1) SCC 321 Court has held that the delinquent officer must be supplied copies of documents relied upon in support of charges. If documents are voluminous and copies cannot be supplied, then such officer must be given an opportunity to inspect the same, or else, the principle of natural justice would be violated. Thus, even in State of Haryana and another vs. Rattan Singh (Supra), the authority relied by petitioner, we find that Court has clearly said that "Absence of any evidence in support of a finding is certainly available for the Court to look into because it amounts to an error of law apparent on the face of record."

39. Lastly, reliance is placed on Management of State Bank of India vs. Smita Sharad Deshmukh and another. (Supra). There, a charge was levelled that employee concerned has filed two forged certificates purportedly said to have been issued by Indian Institute of Bankers that the employee had passed CAIIB Part-II Examination. Therein, employer first got a verification from Indian Institute of Bankers, who replied that certificate was forged and no such certificate was sent by them to the employee. It is in these facts and circumstances, when there was already an evidence to prove that document was forged, Court held that employee cannot be allowed to gain anything by reassessing the evidence. Supreme Court recorded a categorical finding that forgery of certificate was an admitted position and finding was recorded on the basis of evidence. The observations made in para 8 of judgment are reproduced as under :-

8. "In the case before us, it is an admitted position that the certificate produced by the employee is a forged one. It has been categorically found by the Industrial Tribunal, on the basis of evidence, that the employee was fully aware of the fact that the document was a forged one."

(emphasis added).

40. The facts in the present case are totally different and therefore, none of the aforesaid judgments help petitioner at all.

41. No other point has been argued. We do not find any manifest error or error apparent on the face of record. The judgments of Tribunal, hence, warrants no interference.

42. The writ petitions lack merit.

43. Dismissed.

Order Date:- 24.8.2017

Pks/Virendra