Delhi High Court

Bansi Ram vs Union Of India & Ors. on 5 December, 2011

Author: Anil Kumar

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            WP(C) No.1543/1999

%                        Date of Decision: 5.12.2011


Bansi Ram                                                   .... Petitioner

                     Through Ms.S.Janani, Mr. Deepak Goel, & Mr.
                             Suando Raha, Advocates.

                                 Versus


Union of India & Ors.                                    .... Respondents

                     Through Mr.Ravinder     Agarwal,             Central
                             Government Standing Counsel.



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

ANIL KUMAR, J.

1. The petitioner, a Head Constable at the Central Reserve Police

Force (CRPF), has challenged the order of dismissal dated 2nd May,

1997 passed by the Inspector General, CRPF, on the charge that he had

submitted a false certificate of his date of birth and he had changed his

date of birth as he was not eligible for the post of Constable at the time

of his enlistment, and the order dated 16th January, 1998 passed by the

Director General dismissing the appeal of the petitioner against the

enhancement of punishment imposed on him.

2. Brief relevant facts to comprehend the controversies are that the

petitioner joined the Central Reserve Police Force (CRPF) on 27th April,

1968. At the time of joining he had submitted his date of birth

certificate verified by the concerned authority, in accordance with Rule

14 of the CRPF Rules, 1955 and the Verification Roll No. 1225 dated

29th May, 1968, was received on 16th July, 1968.

3. On 16th March, 1995 a charge sheet was issued to the petitioner

leveling the following allegations against him:

"That the said number 680332976 HC Bansi Ram of E/52 Bn., CRPF while functioning as Head Constable in 52 Bn., CRPF committed an act of misconduct in his capacity as a member of the Force u/s 11(1) of CRPF Act, 1949, in that on 27.4.1969 at the time of his enlistment he tampered with date of birth in his original education certificate which was originally written as 11.2.1951 and tampered with it to read as 11.2.1950 to make up deficiency in his age limit for the purpose of enlistment."

4. By order dated 19th March, 1995 Sh. S.C. Pandey, Deputy

Commandant of the Unit, was appointed as the Enquiry Officer. The

petitioner had pleaded not guilty to the allegations made against him.

During the enquiry one prosecution witness, namely Est. Clk II 52 Bn.

CRPF was examined and three documents in evidence were produced,

which were the extract of the first page of the service book of the

delinquent, the original school leaving certificate issued by the Head

Master Govt. High School, Palander Kangra, and the letter dated 7th

June, 1994 issued by the Head Master Govt. High School, Patlander

(H.P.).

5. The Enquiry Officer observed that the date of birth of the

petitioner as mentioned in the transfer certificate, which was the basis

of his enrollment in the CRPF, was 11th February, 1950 and the date of

birth mentioned in the service book was also 11th February, 1950. While

the letter dated 7th June, 1994 which was issued by the Principal and

addressed to the Additional DIG, GC, CRPF clarified that the factual

date of the birth of the petitioner is 11th February, 1951 as per the

school records. The Enquiry Officer repelled the plea of the petitioner

that the certificate in question was submitted by his brother, who had

got him enlisted, and held that the petitioner would be solely

responsible for the correctness of the certificate on the basis of which

he got enrolled. In view of the facts and circumstance, the Enquiry

Officer by its report dated 10th October, 1995 had held that the charge

imputed against the petitioner was made out.

6. The petitioner filed his reply against the findings of the Enquiry

Officer, however, by order dated 25th December, 1995, the

Commandant, 62 Bn., CRPF, the Disciplinary Authority, held the

petitioner to be guilty of the charge framed against him and, therefore,

imposed a punishment of reversion to the rank of Naik for a period of

two years with effect from 1st January, 1996. The Disciplinary Authority

observed that the school leaving certificate submitted at the time of

enrolment to the respondent‟s service stipulated the date of birth of the

petitioner as 11th February, 1951, which was tampered with to read 11th

February, 1950 in order to make up the deficiency in his age limit for

the purpose of enlistment. As per his actual date of birth, i.e. 11th

February, 1951, he was not eligible for enlistment in CRPF on 27th

April, 1968, since he was at that time underage by about 9 months. In

this regard, reliance was also placed on the verification report issued by

the Head Master, Govt. High School Patalander Distt., Hamirpur (H.P.)

dated 7th June, 1994 wherein the actual date of birth of the petitioner

was given as 11th February, 1951.

7. The petitioner, aggrieved by the order dated 25th December, 1995,

preferred an appeal to the Deputy Inspector General of Police, CRPF

contending, inter alia, that at the time of his enlistment as a constable

in the CRPF on 27th April 1968, he was a minor and that the tampering

in the date of birth in the education certificate was not effected by him,

but instead could have been carried out by either his parents or his

brother on whom he was wholly dependant. He categorically asserted

that the tampering with the date of birth was not in his handwriting,

since he could neither read nor write English, which is the language

used in the said certificate. He further urged that his verification roll no.

1225 which was received on 29th May, 1968 clearly showed that his

date of birth is 11th February, 1950 instead of 11th February, 1951 and

the fact that this anomaly was not detected during the time of

verification, cannot be a ground to make the petitioner liable for

punishment after rendering 26 years of unblemished service.

8. The Appellate Authority, the Deputy Inspector General of Police,

CRPF, after considering the pleas and contentions of the petitioner and

the evidence on record, concluded on the guilt of the petitioner and

dismissed the appeal by order dated 16th February, 1996 and upheld

the punishment imposed by the Disciplinary Authority.

9. Thereafter, the petitioner sought the review of the order dated

16th February 1996 and filed a Review Petition on 25th March, 1996

against the punishment imposed on him. Meanwhile, respondent no. 5,

Commandant 62 Bn., by order dated 2nd August, 1996 modified the

punishment of reversion to the rank of Naik for two years to that of

dismissal from service with effect from 3rd August, 1996 under the

provisions of Section 11(1) CRPC Act, 1949 read with Rule 27(a) of

CRPF Rules, 1955. It was also stipulated that in view of the

modification, the petitioner is restored to his original rank of HC with

effect from 1st January, 1996 and that he would be allowed to draw pay

and allowances as per his entitlement as HC with effect from 1st

January, 1996 to the date of dismissal i.e. 3rd August, 1996.

10. Pursuant to the order dated 2nd August, 1996, the petitioner

served a legal notice dated 28th August, 1996 on the respondents.

Consequently, the Deputy Inspector General of Police passed an order

dated 2nd November, 1996 whereby the dismissal order dated 2nd

August, 1996 was set aside and it was observed that the Commandant,

52 Bn. instead of rectifying his order by modifying the word in the

original order of "reversion" to that of "reduction", inadvertently

enhanced the punishment to dismissal from service which is in

contravention of Rule 29 of the CCS (CCA) Rules, 1965. Therefore, it

was directed that the required correction of the word "reversion" to that

of "reduction" ought to be carried out in the original order of penalty.

11. Thereafter, a show cause notice dated 18th February, 1997 was

issued to the petitioner, giving him an opportunity to make a

representation against the proposed punishment of dismissal from

service in view of the charges framed against him which were proved

during the enquiry. The petitioner submitted his reply dated 12th

March, 1997 to the show cause notice issued to him for enhancement of

punishment to that of dismissal. The Inspector General, ES. CRPF, the

Reviewing Authority, after carefully considering the reply of the

petitioner, the entire enquiry proceedings and the evidence on record

observed that as per sub rules of Rule 29 of the CRPF Rules, 1955, the

competent authority while passing orders on a revision petition can

enhance the punishment after issuing a show cause notice to the

delinquent after giving him an opportunity to represent against the

proposed punishment and that under the said provision or any other

provision of the CRPF Rules, there is no time limit to pass orders on

revision petition or on review of a case. The Inspector General held that

the petitioner was not eligible for the post of Constable at the time of his

enlistment and that since he had secured the job by tampering with his

date of birth in the School leaving Certificate, he was guilty of the

charge framed against him and, therefore, it was directed that the

petitioner could not be retained in the service and therefore he is to be

dismissed from service with effect from the date of the order i.e. 2nd

May, 1997.

12. Aggrieved by the order of dismissal, the petitioner filed an appeal

under Rule 29 (c) (11) of the CRPF Rules, 1955, to the Director General

against the enhancement of the punishment contending, inter alia, that

the Inspector General had no power under the Rules to enhance the

punishment on his own motion, since the petitioner had submitted a

review petition and not a revision petition, which had in any case stood

cancelled and withdrawn. It was also contended that the power of

enhancing the punishment as per Rule 29 of the CCS (CCA) Rules,

1965 could only be exercised within six months of the order proposed to

be revised. Since the original order of punishment was passed by order

dated 25th December, 1995, the order of enhancement of the

punishment passed by the Inspector General on 2nd May, 1997, after

the expiry of 15 months, is barred by time and is liable to be quashed.

13. The Director General, after considering facts and circumstances

and rules and regulations, held that the charge was proved against the

petitioner and that he was not eligible at the time of enlistment and got

himself enlisted on account of the false certificate submitted by him in

order to secure the appointment in CRPF. Therefore, the Director

General, by order dated 16th January, 1998, dismissed the appeal and

upheld the punishment of dismissal from service imposed upon the

petitioner.

14. Against the order dated 16th January, 1998, after exhausting all

remedies available to him under the CRPF Act, the petitioner has

approached this Court invoking its writ jurisdiction. The petitioner has

assailed the order dated 16th January, 1998 and has prayed for a writ

of Mandamus seeking direction to the respondents to reinstate him in

the service with all consequential benefits on the ground that the

proviso to Section 29(c) of the CRPF Rules, 1955 read with the first

proviso to Rule 29(1) of the CCS (CCA) Rules, 1965, under which the

show cause notice for enhancement of penalty was issued, specifically

provides that notice of enhancement of punishment has to be given

within six months of the date of the order proposed to be revised. The

order of penalty was imposed by the disciplinary authority by order

dated 25th December, 1995 of reversion to the rank of Naik on the

petitioner whereas the show cause notice for the enhancement of the

penalty to that of dismissal was issued on 18th February, 1997, and

therefore, the enhancement of the punishment by the respondents is

barred by limitation.

15. It was also contended that the petitioner had joined the services

of the respondents‟ in the year 1968 and at the time of his enlistment,

he had submitted certain documents to verify his age and other details.

As per the counsel for the petitioner, Rule 14 of the CRPF Rules

specifically requires that the verification of the birth certificate has to be

done as soon as the person is enrolled and that the verification in the

present matter was carried out in the year 1968 itself, however, no

tampering was alleged at the time and therefore it is contended that the

authorities ought to have taken some action at that time if there was

any evidence of tampering rather than issuing a charge sheet after 27

years of service. The learned counsel for the petitioner further asserted

that the tampering in the school certificate, as stipulated in the charge

sheet, is wrong since the petitioner‟s stand from the very beginning has

been that he hasn‟t carried out any tampering and that the tampering,

if any, may be attributable to either his parents or his brother on whom

he was wholly dependent at the time of his enlistment to the service.

16. The learned counsel for the petitioner also attempted to impress

upon this Court that the date of birth of the petitioner is 1st February,

1950 itself and not 1st February, 1951 as alleged by the respondents

and that he on his own has not carried out any tampering on the

education certificate, which he submitted at the time of the enrollment.

It is also urged that by order dated 2nd November, 1996, the order of

dismissal passed on 25th December, 1995 had been withdrawn and the

punishment of reduction in the rank was reiterated, therefore, the

power of review as well as that of revision of the petitioner had been

exhausted and nothing remained pending with the authorities to entitle

them to have passed fresh orders of dismissal. Learned counsel also

relied on the judgment of Angad Das v. UOI & Ors., (2010) 3 SCC 463 in

support of her submissions.

17. Per contra, the learned counsel for the respondents has

contended that on completion of 25 years of service in the CRPF, the

service record of the petitioner was sent to the PAO, CRPF for

verification of qualifying service by the ADIGP, GC, CRPF, Bhuvaneswar

by letter no VI-5/94-SR 52 dated 15th January, 1994. On checking the

service record of the petitioner, it was noticed by the PAO, CRPF, that

the date of birth of the petitioner that was recorded in his school leaving

certificate had been overwritten, therefore, a request was sent by letter

No. VQS/GC/BBSR/94-VQS-I dated 9th May, 1994 to verify the date of

birth from the concerned school authority. Accordingly, the concerned

school authority was requested by the ADIGP, GC, CRPF,

Bhuvaneshwar vide letter NO. V.I-5/94-SR-52 dated 26th May, 1994 to

intimate whether the date of birth of the petitioner i.e. 11th February,

1950 as recorded in the school leaving certificate is correct or otherwise.

The principal of the concerned school replied by letter dated 7th June,

1994 that the actual date of birth of the petitioner is 11th February,

1951 as per the school records and not 11th February, 1950. Pursuant

to this clarification, a charge sheet was issued and a departmental

enquiry was conducted, whereby the punishment of reversion to the

rank of Naik for the period of 2 years was imposed on the petitioner by

order dated 25th December, 1995. Thereafter, an appeal against the

said order was preferred by the petitioner, which was however

dismissed by the order dated 16th February, 1996.

18. The petitioner then availed the option of filing a revision petition

dated 25th March, 1996 to the IGP-E/S CRPF, challenging the

punishment of reversion and the dismissal by the Appellate Authority.

Meanwhile, the DIGP, CRPF, Bhuvaneshwar was informed by the IGP

E/S CRPF, Calcutta by his office letter No. R. VI-I/96-ES-Admn.I dated

1st May, 1996 that the punishment of reversion to the rank of Naik

which was imposed on the petitioner is not in consonance with the

relevant Rules, since „Reversion‟ is not a penalty within the meaning of

either Rule 27 of the CRPF Rules, 1955 or Rule 11 of the CCS(CCA)

Rules, 1965. It was further directed that the punishment imposed

needs to be rectified in light of the instructions contained in the GOI

Decision No. 3 below Rule 29 of CCS(CCA) Rules, 1965 (Swamy‟s

Compilation of CCS (CCA) Rules-corrected upto 1st March, 1983).

Therefore, in light of the guidelines received, the Commandant 52 Bn.

CRPF modified the punishment order of reversion and awarded the

punishment of dismissal on the petitioner by the order dated 2nd

August, 1996. The said order also stipulated that it is passed under the

authority of the Office Memorandum No. 11012/7/91-Estt.(A) dated

19th May, 1993, which was produced by the learned counsel before this

Court and which categorically directed that whenever it is found that a

Government servant, who was not qualified or eligible in terms of the

recruitment rules for initial recruitment in the service or had furnished

false information or produced a false certificate in order to secure

appointment, such an employee should not be retained in the service

and also that in case the said government servant becomes permanent

then he/she should be removed or dismissed from the service.

19. Thereafter, by order dated 2nd November, 1996 by the Dy.

Inspector General of Police, CRPF, Bhuvaneshwar it was directed that

the original punishment of „reversion‟ was to be corrected to that of

„reduction‟ to a lower rank and that instead the Commandant had

inadvertently issued the order of dismissal which was improper as it

amounted to enhancement of punishment and that too without giving

any show cause notice and therefore it was to be set aside. Accordingly,

the punishment of „reversion‟ was corrected to that of „reduction‟ to the

rank of Naik for a period of 2 years with effect from 1st January, 1996

by order dated 10th December, 1996. Therefore, the revision petition

filed by the petitioner which was kept pending in the Sector Office had

been disposed of by the order dated 2nd November, 1996. Consequently,

as per the learned counsel for the petitioner on disposal of the revision

petition, the IGP E/S, CRPF, Calcutta issued a show cause notice dated

18th February, 1997, thereby giving the petitioner an opportunity to

make his representation against the proposed enhancement of the

punishment from reduction to the lower rank of Naik to that of

dismissal. After giving due opportunity to the petitioner, the Inspector

General, CRPF, Calcutta passed the order dated 2nd May, 1997 whereby

the punishment was enhanced to dismissal from service with effect

from the date of service of the order. Against the order of enhancement,

the petitioner sought an appeal dated 15th June 1997, however, the

same was also dismissed by order dated 16th January, 1998.

20. The learned counsel for the respondents contended that the order

of enhancement is justified on the ground that the petitioner was not

eligible for the post of Constable at the time of his enlistment and that

he had secured the job only by forgery and tampering his date of birth

in his school leaving certificate. Therefore, it was contended that he has

no right to be retained in the services of the respondents. It was further

pointed out that the verification roll submitted by the petitioner at the

time of his enlistment also showed the date of birth as 11.2.50 under

the signatures of the petitioner himself, instead of 11.2.51, which is his

correct date of birth. Therefore, it was contended that the suppression

of such factual information and furnishing false certificate is clearly

evident and thus cannot go unpunished. Learned counsel for the

respondents also argued that the punishment of dismissal imposed on

the petitioner by order dated 2nd May, 1997 was in view of the binding

instructions prescribed vide office memorandum No. 11.12/7/91-Estt.

(A) dated 19th May, 1993 which categorically stipulates that incase it is

found that a Government Servant, who was not qualified or eligible in

terms of the recruitment rules, etc for initial recruitment in service or

had furnished false information or produced a false certificate in order

to secure appointment, he/she should not be retained in the service.

Learned counsel for the respondent also relied on the judgment of Ex

Const. Raghubir Singh v. CRPF & Ors. WPC No. 3321/1998 dated 27th

July, 2011 and Ram Saran v. IG of Police, CRPF and Ors, (2006) 2 SCC

541.

21. This Court has heard the learned counsel for the parties in detail

and has also perused the entire record. The first point for determination

is whether or not there has been any tampering of the school leaving

certificate which was submitted by the petitioner at the time of his

enlistment to the services of the respondents. Though the counsel for

the petitioner had contended that the plea of the petitioner is that there

had not been any tampering and even if there is any tampering, it is not

by the petitioner. She contended that the charge sheet issued against

the petitioner is wrong on two counts. Firstly, there has been no

tampering on the school leaving certificate by the petitioner which was

submitted at the time of enlistment and secondly the date of birth of the

petitioner is 11.2.1950 and not 11.2.1951 as has been alleged by the

respondents. Though this Court must not re-appreciate the evidence

adduced before the enquiry officer while exercising its writ jurisdiction

unless the findings were based on no evidence or ex-facie perverse,

however, on perusing the record it is clearly evident that both the pleas

raised by the petitioner are to be rejected. It was the categorical plea of

the petitioner himself, during the departmental enquiry as well as

during the appeal against the punishment of reversion to the rank of

Naik and in the subsequent proceedings too, that he was a minor, his

age being 17 years 2 months and 16 days at the time of his enlistment

as Constable in the CRPF on 27th April, 1968 and the certificate

showing his date of birth was submitted by his parents or his brother.

Therefore, it cannot be contended by the petitioner that his date of birth

is 11.2.1950 and not 11.2.1951. If his date of birth is 11.2.1950, he

wouldn‟t have been a minor at the time of his enlistment and the

petitioner would not have contended that he was a minor and the

tampered certificate was submitted by his parents or his brother. If the

date of birth of the petitioner had been 11.2.1950, he would not have

been minor at the time of enlistment and there would not have been

need for tampering the date of birth certificate submitted to the

authorities.

22. Also, as per the verification of the date of birth done by the

Principal of the petitioner‟s concerned school by letter dated 7th June,

1994, the date of birth had been verified to be 11.2.1951 according to

the school records. The learned counsel for the petitioner has been

unsuccessful in showing anything to disprove or invalidate the

verification by the Principal of the petitioner‟s school. Therefore, the

date of birth of the petitioner is 11.2.1951 and not 11.2.1950 as has

been contended by the counsel for the petitioner.

23. The other plea in the facts and circumstances that there had not

been any tampering in the certificate and in case there is tampering, the

same could not have been done by the petitioner also cannot be

accepted. The tampering in the school leaving certificate has been

accepted by the petitioner in various pleadings. Rather, the petitioner

has contended that tampering in the certificate was done either by his

parents or his brother. The petitioner is the beneficiary of tampering

and it cannot be held that he was oblivious of the tampering and had

not even given tacit approval, even if it is inferred that tampering was

done either by his parents or his brother. The disciplinary authority has

inferred that the tampering must have been done by the petitioner and

in the facts and circumstances on the basis of evidence, this Court in

exercise of its jurisdiction under Article 226 of the Constitution of India

would not substitute the probable inferences of the disciplinary

authority with its own inference, if it is contrary to the inference of the

disciplinary authority. In any case, these pleas were carefully

considered by the Inspector General, the Reviewing Authority, while

issuing the order dated 2nd May, 1997 enhancing the punishment to

that of dismissal from service. This Court does not find any such

perversity or illegality in the findings of the Reviewing Authority, holding

that the petitioner is guilty of tampering with the school leaving

certificate submitted by him at the time of his enlistment in order to

secure the post of Constable by unfair means.

24. The learned counsel for the petitioner has also assailed the order

of enhancement of the punishment from reversion to that of dismissal

from service on the ground that the same is barred by limitation.

According to the counsel, Ms.S.Janani, Advocate, Rule 29(c) of the

CRPF Rules, 1955 read with Rule 29(1) of the CCS (CCA) Rules under

which the show cause notice for enhancement of penalty was issued,

specifically provides that such a notice has to be given within six

months of the order of penalty, which in the facts and circumstances

was delayed, since while the order dated 25th December, 1995 imposed

the penalty of reversion to the rank of Naik on the petitioner, the show

cause notice for the enhancement of the penalty to that of dismissal

was issued on 18th February, 1997. In the circumstances, it is urged

that the enhancement of the punishment by the respondents was

barred by limitation and the order of enhanced punishment of dismissal

from service is liable to be set aside. The learned counsel for the

respondent per contra has contended that there is no time limit

prescribed under the CRPF Rules, 1955 and therefore, the order of

dismissal is not barred by limitation.

25. With regard to this plea of limitation for enhancement of

sentence, it would be appropriate to consider the relevant provisions

referred to by the petitioner.

29. Revision: (CRPF Rule, 1955)

Provided that before enhancing the punishment the accused shall be given an opportunity to show cause why his punishment should not be enhanced

29. REVISION: (CCS (CCA) Rules, 1965)

1) Notwithstanding anything contained in these rules-

(i) the President; or

(ii) the Comptroller and Auditor-General, in the case of a Government servant serving in the Indian Audit and Accounts Department; or

(iii) the Member (Personnel) Postal Services Board in the case of a Government servant serving in or under the Postal Services Board and Adviser (Human Resources Development), Department of Telecommunications in the

case of a Government servant serving in or under the Telecommunications Board; or

(iv) the Head of a Department directly under the Central Government, in the case of a Government servant serving in a department or office (not being the Secretariat or the Posts and Telegraphs Board), under the control of such Head of a Department; or

(v) the appellate authority, within six months of the date of the order proposed to be revised or

(vi) any other authority specified in this behalf by the President by a general or special order, and within such time as may be prescribed in such general or special order;

may at any time, either on his or its own motion or otherwise call for the records of any inquiry and revise any order made under these rules or under the rules repealed by rule 34 from which an appeal is allowed, but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may-

(a) confirm, modify or set aside the order; or

(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or

(c) remit the case to the authority which made the order to or any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or

(d) pass such other orders as it may deem fit:

Provided that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty

proposed and where it is proposed to impose any of the penalties specified in clauses (v) to (ix) of rule 11 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, and if an inquiry under rule 14 has not already been held in the case no such penalty shall be imposed except after an inquiry in the manner laid down in rule 14 subject to the provisions of rule 19, and except after consultation with the Commission where such consultation is necessary:

The time limit of six months is prescribed for the appellate

authority when an appeal is not filed and the appellate authority

exercises the power of revisional authority under the CCS (CCA) Rules

whereas no time limit is provided under the CRPF Rules for the

revisional authority to enhance the punishment. The revisional

authority of the respondents, admittedly, did not exercise the powers as

revisional authority on appeal being not filed by the delinquent under

the CCS (CCA) Rules. Appeal had been filed by the petitioner under the

CRPF Rules and thereafter, revision had also been filed under the CRPF

Rules. In the circumstances, both the provisions of Section 29 in the

CRPF Rules, 1955 as well as Section 29 of the CCS(CCA)Rule, 1965

does not provide any limitation for exercising the revisionary powers by

the Reviewing Authority nor any time limit for enhancement of

punishment. The plea of the petitioner that the enhancement of

punishment was barred by limitation, therefore, cannot be accepted

and is rejected.

26. The sequence of events also reflects that there had not been any

undue delay in enhancement of punishment though there is no

limitation provided under rules. On 25th December, 1995 the

Commandant 52 Bn., CRPF, the Disciplinary Authority passed the

order imposing the punishment of reversion to the rank of Naik on the

petitioner. The petitioner, thereafter, filed an appeal against the order of

the Disciplinary Authority on 17th January, 1996. By order dated 16th

February, 1996 the said appeal was dismissed by the Deputy Inspector

General of Police, CRPF, the Appellate Authority. Aggrieved by the

dismissal of the appeal, the petitioner filed a revision petition on 25th

March, 1996 before the Inspector General, the Reviewing Authority.

During the pendency of the revision petition, on 2nd August, 1996 the

Commandant 52 Bn., CRPF, the Disciplinary Authority, modified the

order dated 25th December, 1995 and imposed the punishment of

dismissal from service. Since the said order was wrongly passed as it

amounted to enhancement of punishment without show cause notice to

the petitioner, the same was rectified by the order dated 2nd November,

1996 passed by the Deputy Inspector General, the Appellate Authority

and „reversion‟ was corrected to „reduction‟ to the lower rank and the

order dated 2nd August, 1996 was set aside. However, the order dated

2nd November, 1996 also categorically stipulated that the legal aspect of

the matter regarding irregular dismissal of the petitioner would be

discussed at the time of disposal of petitioner‟s pending revision

petition. Therefore, the order dated 2nd November, 1996 had not

disposed of the revision petition filed by the petitioner, which remained

pending before the Inspector General. Therefore, the revisional

Authority before whom the revision petition was pending was the

Competent Authority to issue the show cause notice dated 18th

February, 1997 and thereafter, to impose the enhanced punishment of

dismissal by order dated 2nd May, 1997 after considering the reply to

the show cause notice received from the petitioner. These facts clearly

show that the order of dismissal dated 2nd May, 1997 disposed of the

revision petition and that it was passed in accordance with Rule 29 of

the CRPF Rules, 1955 after issuing a show cause notice, and, therefore,

after giving reasonable opportunity to the petitioner to defend himself

against the enhancement of punishment. The punishment of dismissal

from service, therefore, cannot be held to be barred by limitation or

passed after undue delay. The earlier dismissal order dated 2nd August,

1996 passed by the disciplinary authority without giving any show

cause notice had been set aside.

27. Enhancement of the punishment from reversion to the rank of

„Naik‟ to that of dismissal imposed by the Reviewing Authority is also in

accordance with the office memorandum dated 19th May, 1993. The

said memorandum is under:

G.O.No.49/93

No.11012/7/91-Estt.(A) GOI, Ministry of Personal, P.G.

& Pensions (Department of Personal and Training)

----------------

New Delhi, the 19/5/93

OFFICE MEMORANDUM

Subject : Action against Government servants to be taken if they are later found ineligible or unqualified for their initial recruitment.

Attention of the Ministries/ Departments is invited to Ministry of Home Affairs O.M. No. 39/1/67-Estt.(A) dated 21.02.1967 wherein it was clarified that departmental action can be taken against Government servant in respect of misconduct committed before his employment. Attention is also invited to the Ministry of Home Affairs O.M. No. 5/1/63-Estt.(D) dated 30.04.1965 wherein Ministries/Departments were requested to make use of the provision of "warning" inserted in the Attestation Form for taking action against Government servant furnishing false information at the time of appointment.

2. A question has now arisen as to whether a Government servant can be discharged from service where it is discovered later that the Government servant was not qualified or eligible for his initial recruitment in service. The Supreme Court in its judgment in the District Collector, Vizianagram Vs. M. Tripura Sundari Devi [1990(4) SLR 237] went into this issue and observed as under: --

"It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint a person with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice."

The matter has been examined in consultation with the Ministry of Law and Justice and it has now been decided that wherever it is found that a Government servant, who was not qualified or eligible in terms of the recruitment rules etc., for initial recruitment in service or had furnished false information or produced a false certificate in order to secure appointment, he should not be retained in service. If he is a probationer or a temporary Govt. servant, he should be discharged or his services should be terminated.

If he has become a permanent Govt. servant, an enquiry as prescribed in Rule 14 of CCS (CCA) Rules, 1965 may be held and if the charges are proved, the Government servant should be removed or dismissed from service. In no circumstances should any other penalty be imposed.

3. Such discharge, termination, removal or dismissal from service would, however, be without prejudice to the right of the Government to prosecute such Government servants.

4. Ministries/Departments are requested to bring the above, to the notice of all concerned for information and necessary action.

5. In so far as persons serving in the Indian Audit and Accounts Department are concerned, these orders issue in consultation with the Comptroller and Auditor General of India.

Sd/-

(V.NATARAJAN) Deputy Secretary To The Govt. of India

The petitioner was a permanent employee and charges against

him had been proved and, therefore, the punishment of dismissal

imposed on him is in consonance with the said order.

28. The learned counsel for the petitioner has also contended that the

charge sheet after 27 years of service rendered by the petitioner is

unjustified and that as per Rule 14 proper verification ought to have

been carried out as soon as the petitioner had enrolled with the

respondents. The Supreme Court in Ram Saran (supra) relied upon by

the respondent in similar circumstances had upheld the imposition of

punishment of dismissal from service. In the instant case, the

employee while applying for the appointment as a Constable in the

„CRPF' had produced a certificate where his date of birth was stated to

be 1.1.1951. Later on it was revealed that his date of birth was 1.7.1951

and he was not eligible to be appointed as he was less than 18 years of

age. He had undisputedly rendered about 27 years of service. In these

circumstances, departmental inquiry was conducted against him. The

Deputy Commandant 45/BN. CRPF was appointed as Inquiry Officer to

conduct the Departmental Enquiry. The Commandant (S.G.), the

Disciplinary Authority, after considering the report was of the view that

the charged official deserves stringent punishment, but keeping in view

his long service of 28 years with good grading for the past 10 years, he

had taken a lenient view in purported exercise of power under Section

11(1) of the Central Reserve Police Force Act, 1949 (in short the 'Act')

and Rule 27 of the Central Reserve Police Force Rules, 1955 (in short

the 'Rules') and had imposed penalty of reduction to the rank of NK

(GD) for a period of one year from 10.9.1997 to 9.9.1998 without

cumulative effect. The matter was thereafter placed before the Deputy

Inspector General of Police, C.R.P.F., Nagpur who by order dated

16.1.1998 differed from the proposed punishment and directed

dismissal from service. Accordingly, notice was issued to the said

employee and after considering the reply the punishment of dismissal

from service was awarded. The said order was challenged in appeal

before the Departmental Appellate Authority which was dismissed.

Thereafter, the writ petition was filed which was also dismissed. It was

pointed out that on the basis of binding instructions contained in

Government of India, Department of Personnel and Training, OM No.

11012/7/91 Estt. (A) dated 19.5.93 (G.O. No. 29/93) dismissal from

service was the only punishment which could be awarded. In the said

case, the plea as advanced by the learned Counsel for the appellant was

with regard to completion of 27 years of service. It was argued that the

punishment was disproportionate to the alleged infraction. The Apex

Court in the said facts and circumstances made the following

observations:

"8. The Courts should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in (CA) Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223 : (1947) 2 All ER 680 (CA) commonly known as Wednesbury's case the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision. (See: V. Ramana v. A.P. SRTC and Ors. MANU/SC/0539/2005 : (2005)IIILLJ725SC .

9. In R. Vishwanatha Pillai v. State of Kerala and Ors. MANU/SC/0023/2004: AIR2004SC1469 it was observed as follows:

It was then contended by Shri Ranjit Kumar, learned Senior Counsel for the appellant that since the appellant has rendered about 27 years of service, the order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensionary benefits of the appellant. We do not find any substance in this submission as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. The appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eye of the law. The right to salary or pension after retirement flows from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on a false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for a Scheduled Caste, thus depriving a genuine Scheduled Caste candidate of appointment to that post, does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He, who comes to the court with false claims, cannot plead equity nor would the court be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of a false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practising fraud.

Though the case related to a false caste certificate, the logic indicated clearly applies to the present case.

10. This is a case which does not deserve any leniency otherwise it would be giving premium to a person who

admittedly committed forgery. In the instruction (G.O. No. 29/93), it has been provided that whenever it is found that a government servant who was not qualified or eligible in terms of the recruitment rules etc. for initial recruitment in service or had furnished false information or produced a false certificate in order to secure appointment should not be retained in service. After inquiry as provided in Rule 14 of the CCS(CCA) Rules, 1965 if the charges are proved, the government servant should be removed or dismissed from service and under no circumstances any other penalty should be imposed."

Therefore, the facts of Ram Saran (supra) cannot be distinguished

by the petitioner and it cannot be held that the order of dismissal

passed by the respondents suffers from any illegality, or such perversity

which would require correction by this Court in exercise of its

jurisdiction.

29. The precedent of Angad Das (supra) relied upon by the petitioner

is distinguishable. In the said matter, the request letter of the employee

for re-employment was treated as an appeal by the DIG Police, CRPF,

Avadi, Madras and the punishment of "compulsory retirement" as

awarded by the Commandant, 51 BN, CRPF, was enhanced to that of

"removal from service" w.e.f. 31.5.1996. It was observed by the Apex

Court that there is no provision of law which permits the DIG to treat a