Anurudh Kumar Tripathi vs Bharat Sanchar Nigam Ltd. Thru. ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 1
 

 
Case :- WRIT - A No. - 222 of 2023
 

 
Petitioner :- Anurudh Kumar Tripathi
 
Respondent :- Bharat Sanchar Nigam Ltd. Thru. Its Chairman/ Managing Director And Others
 
Counsel for Petitioner :- Dharmesh Sinha
 
Counsel for Respondent :- Pratul Kumar Srivastava
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Subhash Vidyarthi,J.

(1) The instant writ petition under Article 226 of the Constitution of India has been filed by the petitioner, Anurudh Kumar Tripathi, challenging the judgment and order dated 06.12.2022 passed by the Central Administrative Tribunal, Lucknow Bench, Lucknow (hereinafter referred to as ''the Tribunal') in Original Application No. 332/00202/2014, whereby the Tribunal dismissed the said original application preferred by the petitioner.

(2) The facts leading to the instant writ petition, in a nutshell, are as under :-

Initially, the petitioner was engaged as a Casual Worker in the office of General Manager, Telecommunication, Bharat Sanchar Nigam Limited, Faizabad. Later on, he was appointed to the post of Lineman w.e.f. 14.09.1981 under the Sub-Divisional Officer, Telephones, Raebareli. After that he was promoted to the post of Telephonic Mechanic under the Chief General Manager, Bharat Sanchar Nigam Ltd., U.P. East Telecom Circle, Lucknow and while working in the same capacity, it was found that the date of birth of the petitioner is actually 11.07.1941 but in the service record, it has been shown as 15.12.1953, therefore, the department had initiated enquiry against the petitioner and a Charge Memorandum dated 22.06.2009 was served upon him, leveling the charge that he had got appointment on fake statement of date of birth as 15.12.1953, whereas the same was actually 11.07.1941. Thereafter, the Enquiry Officer had submitted his report to the disciplinary authority on 15.09.2012, which was served upon the petitioner vide letter dated 22.09.2012. In response, the petitioner had submitted his representation. After that the Disciplinary Authority had passed the order dated 17.04.2013, dismissing the petitioner from service.

Against the order of dismissal dated 17.04.2013, the petitioner had preferred Original Application No. 2606 of 2013 before the Tribunal, which was dismissed as withdrawn vide order dated 09.05.2013 as the petitioner intended to file statutory remedy of appeal. Thereafter, the petitioner had preferred an appeal dated 13.05.2013, which was dismissed by the appellate authority vide order dated 21.03.2014.

Feeling aggrieved by the order of dismissal dated 17.04.2013 and appellate order dated 21.03.2014, the petitioner had preferred Original Application No. 332/00202/2014 before the Tribunal, which was dismissed by the Tribunal by means of the order dated 06.12.2022, which is impugned in the instant writ petition.

(3) Heard Shri Dharmesh Sinha, learned Counsel for the petitioner, Shri Pratul Kumar Srivastava, learned Counsel for the respondents and perused the impugned judgment as well as the the material brought on record.

(4) Challenging the impugned order dated 06.12.2022 passed by the Tribunal, learned Counsel for the petitioner has contended that whole proceedings were initiated against the petitioner on a complaint of a co-villager Yashwant Kumar Tewari, who is inimical terms with the petitioner. He argued that during enquiry, neither the complainant was examined nor was his complaint verified. Thus, the whole proceedings stand vitiated.

(5) Learned Counsel for the petitioner has next contended that the petitioner had challenged the order of dismissal and appellate order on the grounds that the same were passed in utter violation of principle of natural justice as documents, which were demanded by the petitioner, were not supplied to them nor allowed to inspect it, but the Tribunal, instead of looking into the legality and illegality of the order of dismissal and appellate order, acted as an Enquiry Officer to find out the correctness of the date of birth of the petitioner when he sought employment. His submission is that after working as casual worker, the petitioner passed the written examination for the post of Lineman on 27.04.1981 and after undergoing training, the petitioner was appointed w.e.f. 14.09.1981 vide memo dated 30.08.1982 on completion of all the departmental formalities. Thus, it is apparent that process of regular appointment was started prior to 27.04.1981 and at that point of time, the petitioner was below 40 years of age, but the Tribunal has failed to consider the aforesaid facts and erred in recording the findings that the petitioner was overage for the employment as he was crossed 41 years of age. Thus, the impugned order passed by the Tribunal is liable to be quashed.

(6) Refuting the aforesaid submissions advanced by the learned Counsel for the petitioner, Shri Pratul Kumar Srivastava, learned Counsel for the respondents has submitted that the department had received complaint, wherein the complainant had challenged the date of birth of the petitioner, which was investigated by the department. After due investigation, it was found that the date of birth mentioned in the service book of the petitioner was forged as his actual date of birth is 11.07.1941. Thereafter, an inquiry was instituted against the petitioner and a charge-memo was served upon the petitioner. In response thereof, the petitioner had submitted his reply. The Enquiry Officer, after adopting the due process, concluded the enquiry and submitted its report to the Disciplinary Authority. The enquiry report was also served upon the petitioner, to which the petitioner had submitted his representation. Thereafter, the Disciplinary Authority, after considering the representation of the petitioner, has passed the order dismissing the petitioner from service, against which, appeal was preferred, which was also dismissed by the appellate authority. The Tribunal, after hearing the learned Counsel for the parties and gone through the record, has rightly dismissed the original application by means of the impugned order.

(7) Elaborating his submission, learned Counsel for the respondents has submitted that though the Tribunal had afforded opportunity to the petitioner to produce any document regarding authenticity of the date of birth mentioned in his service book but the petitioner has failed to produce the same nor established his claim by producing any iota of documents that the date of birth mentioned in his service book is the actual date of birth. Thus, the instant writ petition is liable to be dismissed.

(8) We have examined the submissions advanced by the learned Counsel for the parties and gone through the impugned judgment as well as material brought on record.

(9) It transpires that a complaint was lodged by Shri Yashwant Kumar Tiwari, who is the resident of the same village of which the petitioner is belonging. In the complaint, the complainant had challenged the date of birth of the petitioner. On receipt of the complaint, the respondents/department had made an investigation into the matter. On due investigation, it was opined that date of birth mentioned in the service record as 15.12.1953 is fraudulent as his actual date of birth according to the certificate issued by Head Master, J.H. Deorhi is 11.07.1941 and as such, the petitioner had managed the date of birth according to his own suitability to get employment on fake document for date of birth with mala fide intention. In these backgrounds, the respondents/department had instituted a departmental enquiry against the petitioner under Rule 36 of B.S.N.L. Conduct, Discipline and Appeal Rules, 2006. The Enquiry Officer so appointed had served a charge-memo dated 22.06.2009 to the petitioner, levelling two charges against the petitioner viz. (1) the petitioner got employment on fake document with mala fide intention; and (2) the petitioner has kept his superiors in dark, which is unbecoming on his part.

(10) On receipt of the aforesaid charge-memo dated 22.06.2009, the petitioner sought time to submit reply to the charge memo vide letter dated 04.07.2009 and denied the charges made against him vide letter dated 28.07.2009. Thereafter, the Enquiry Officer had proceeded with the enquiry and directed the petitioner to appear before him on 07.12.2009. In pursuance thereof, the petitioner appeared before the Enquiry Officer on 07.12.2009 and requested the Enquiry Officer to grant some time to engage a defense assistant, which was granted by the Enquiry Officer. After nominating defense assistant by the petitioner himself, the defense assistant appeared on behalf of the petitioner before the Enquiry Officer and has sought permission from the Enquiry Officer for inspection of the relevant documents, which was permitted by the Enquiry Officer. Thereafter, the inspection of listed documents was completed on behalf of the petitioner by his defense assistant on 26.04.2010 and after that inspection of additional document was also completed on 05.01.2011. Thereafter, the examination-in-chief and cross-examination of the witnesses were made and the same was completed on 25.02.2011. The petitioner, thereafter, had submitted a written statement before the Enquiry Officer on 27.06.2011. The Enquiry Officer, after elaborate consideration of the charges, the statements of allegations and the supporting documents and after hearing the parties, came to the conclusion that charges so levelled against the petitioner were found to be proved. The Enquiry Officer, vide his report dated 15.09.2012, concluded that the date of birth recorded in service book of the petitioner as 15.12.1953 is not correct as his actual date of birth is 11.07.1941, therefore, the petitoner has made his date of birth in the service book as 15.12.1953 with mala fide intention and further during his service period, he has never intimated about it to superior officers. The Disciplinary Authority, vide order dated 17.04.2013, after going through the relevant records of the case, the findings of the enquiry Officer, the submission made by the petitioner in his written statement of defense vide his representation dated 08.10.2012 and all the relevant facts and circumstances of the case, decided to dismiss the petitioner from service in terms of Rule 33 (B) (j) of the B.S.N.L. Conduct, Discipline and Appeal Rules, 2006.

(11) Against the order of dismissal dated 17.04.2013, the petitioner, without availing of the remedy of a statutory appeal, approached the Tribunal by filing Original Application No. 206 of 2013, which was subsequently withdrawn by the petitioner himself and the said original application was dismissed as withdrawn vide order dated 09.05.2013 as the petitioner intended to file statutory appeal. Thereafter, the petitioner had filed statutory appeal, which was dismissed by the appellate authority vide order dated 13.05.2013.

(12) Feeling aggrieved by the aforesaid order of dismissal 17.04.2013 and appellate order dated 13.05.2013, the petitioner had filed original application No. 332/00202 of 2014 before the Tribunal. The Tribunal, after hearing the parties and perusing the material brought on record, took the view that the petitioner has failed to convinced that the petitioner has made valiant efforts to state his actual date of birth, hence the petitioner not only committed the misconduct of making erroneous statement of date of birth but also continuing to do service when he should not have been appointed in the first place as he was over age being of age 41 years when he secured his permanent employment and consequently, dismissed the original application preferred by the petitioner by means of the impugned order.

(13) It transpires that the Enquiry Officer had examined each and every charge levelled against the petitioner and the documents produced by the presenting officer and came to the conclusion that charges so levelled against the petitioner were proved. In a departmental inquiry, the disciplinary authority is expected to prove the charges on preponderance of probability and not on proof beyond reasonable doubt. It appears that the documents produced by the department/respondents, which were not controverted by the petitioner, supports all the allegations and charges levelled against the petitioner.

(14) At this juncture, it would be apt to mention that in Bank of India v. Apurba Kumar Saha : (1994) 2 SCC 615, the Apex Court has held as under :-

"A bank employee who had refused to avail of the opportunities provided to him in a disciplinary proceeding of defending himself against the charges of misconduct involving his integrity and honesty, cannot be permitted to complain later that he had been denied a reasonable opportunity of defending himself of the charges levelled against him and the disciplinary proceeding conducted against him by the bank employer had resulted in violation of principles of natural justice of fair hearing".

(15) It transpires from the enquiry report that the petitioner and his representative have been provided to opportunity to defend his case. The Tribunal has also provided the petitioner opportunity to show any document, which establishes the fact that the date of birth mentioned in the service book is true. In this regard, this Court, during the course of argument, asked the learned Counsel for the petitioner to show any document, which establishes the fact that the date of birth mentioned in the service book is correct, but the learned Counsel for the petitioner has failed to show any iota of document(s) in regard to the authenticity of the date of birth mentioned in the service book of the petitioner nor pleaded before us to grant some time so that he may produce the same.

(16) For the reasons aforesaid and the fact that the learned Counsel for the petitioner has failed to show any illegality or perversity in the impugned order, we are of the view that the Tribunal is justified in not interfering with the order of dismissal dated 21.03.2014 as well as appellate order 17.04.2013 and there is no illegality and infirmity in the impugned order dated 06.012.2022 passed by the Tribunal.

(17) The writ petition is, accordingly, dismissed. However, there is no order as to costs.

(Subhash Vidyarthi, J.)     (Ramesh Sinha, J.)
 
Order Date :- 11.1.2023
 
Ajit/-