Lalit Mohan Aggarwal vs The Management Of Central Bank Of ...
2012 Latest Caselaw 7245 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 18th December, 2012

+                               LPA No.818/2012

      LALIT MOHAN AGGARWAL                  ..... Petitioner
                  Through: Mr. Sudhir Nandrajog, Sr. Adv. with
                           Mr. Siddharth Aggarwal, Adv.

                                   Versus

    THE MANAGEMENT OF CENTRAL BANK
    OF INDIA & ANR.                           ..... Respondents

Through: Mr. R.S. Mathur, Adv.

CORAM :-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This intra-court appeal accompanied with an application for

condonation of 444 days delay in preferring the same, impugns the order

dated 05.08.2011 of the learned Single Judge, allowing W.P.(C)

No.859/1988 preferred by the respondent Central Bank of India. The said

writ petition was preferred impugning the award dated 23.11.1987 of the

Industrial Adjudicator on the following reference:

"Whether the action of the management of Central Bank of India in terminating the services of Shri Lalit Mohan Aggarwal with

effect from 19.1.84 is justified? If not, to what relief is the workman concerned entitled?"

and setting aside the order of the respondent Bank of termination of

services of the appellant and directing the respondent Bank to reinstate the

appellant with continuity of service and full back wages.

2. The counsel for the respondent Bank appears on advance notice. The

delay in filing the appeal is blamed on the advocate engaged by the

appellant, who failed not only to appear before the learned Single Judge but

also to inform the appellant of the writ petition of the respondent Bank

having been allowed. It is further the case of the appellant that he remained

under the impression that the writ petition was still pending since the

respondent Bank continued to deposit amounts in payment of wages under

Section 17B of the Industrial Disputes Act, 1947, even after the date the writ

petition was allowed. Though the counsel for the respondent Bank is unable

to comment on whether 17B wages were deposited in this Court even after

the Bank‟s writ petition has been allowed, but the appellant has filed copies

of his bank statement in this regard and we in the circumstances have

deemed it proper to condone the delay in preferring the appeal and have with

consent heard the counsels finally on the appeal.

3. The respondent Bank had in the year 1968 invited applications inter

alia for the post of „Clerk‟ and of which 25% were reserved for sons and

daughters of employees of the respondent Bank who had put in fifteen years

of uninterrupted service with the respondent Bank. The appellant applied in

the said reserved category and was selected and joined the services of the

respondent Bank on 08.04.1970.

4. Disciplinary proceedings were commenced against the appellant in the

year 1973 on the charge of having fudged / forged the documents qua his

educational qualification while seeking appointment in the respondent Bank.

The Inquiry Officer and the Disciplinary Authority found the appellant

guilty and dismissed the appellant from service. The departmental appeal

was also dismissed on 26.05.1984.

5. The senior counsel for the appellant has drawn our attention to the

Certificate of the Punjab University submitted by the appellant at the time of

seeking employment in the Bank, inter alia certifying that the appellant had

passed the Matriculation Examination of the University held in March, 1969

in six subjects in the second division. As per the said Certificate, the

appellant had obtained 84 marks out of 150 in the subject of English and 82

marks out of 150 in the subject of Mathematics and a total 439 marks out of

900 marks.

6. The senior counsel for the appellant has next invited out attention to

the communication dated 06.04.1983 of the Punjab University to the Bank

qua verification of qualification of the appellant and as per which the

appellant had passed the Matriculation Examination of the University in

third division with 64 marks out of 150 in the subject of English and 52

marks out of 150 in the subject of Mathematics and with a total of 339 marks

out of 900 marks.

7. The learned senior counsel for the appellant has taken us through the

Award dated 23.11.1987 of the Industrial Adjudicator in favour of the

appellant. The said Award held:

(i) that the charge was frivolous, based on insufficient evidence

since the original of the Certificate had not seen the light of the day. It

was / is the case of the appellant that he had handed over the original

Certificate to the then Accounts Officer of the Chandni Chowk

Branch of the respondent Bank at the time of joining. The respondent

Bank had pleaded that it was not the practice of the respondent Bank

to retain the original certificates and only authenticated copies of the

certificates were retained in the records of the respondent Bank and

the Industrial Adjudicator held that though it was the plea of the

appellant that he had handed over the original to the Accounts Officer

but the respondent Bank failed to produce the Accounts Officer who

alone could admit or deny as to whether the original Certificate had

been handed over to him or not. It was further held that the

respondent Bank had not even made any enquiries in this regard from

the said Accounts Officer;

(ii) that there was not an iota of evidence to prove that it is the

appellant who had committed the forgery or had conspired in

committing the forgery;

(iii) that there were defects in the verification report dated

06.04.1983 sent by the Punjab University. The total of the marks

mentioned therein worked out to 364 and not 339. Therefore no

reliance could be placed thereon;

(iv) that even if it were to be assumed that the appellant had

submitted a false Certificate and made a false declaration regarding

the marks obtained by him, such act could not amount to gross

misconduct within the meaning of para 19.5(j) of the Bipartite

Settlement; and,

(v) that the appellant had hardly anything to gain by producing a

forged Certificate to show inflated marks inasmuch as for the reserved

category under which the appellant had applied there was no

minimum percentage prescribed. The appellant even as per the

verification report dated 06.04.1983 of the Punjab University had

passed the Matriculation Examination with the subjects of English and

Mathematics.

8. The learned Single Judge however in the impugned order dated

05.08.2011 has disagreed with the reasoning aforesaid of the Industrial

Adjudicator observing/finding/holding:

i) that there was no error in the verification report dated

06.04.1983 of the Punjab University inasmuch the total of the marks

obtained in the subjects of English, Mathematics, Social Studies,

Hindi and Animal Husbandry work out to 339 only and the marks

mentioned therein of subject of Physiology and Hygiene were not to

be included in the total. The conclusion of the Industrial Adjudicator

was therefore clearly perverse; and,

ii) the Industrial Adjudicator had overlooked the cardinal principle

that fraud and forgery unravels everything. Thus the very

appointment of the appellant on the basis of forged Certificate was

rendered void ab- initio;

Accordingly, the writ petition was allowed and the Award dated

23.11.1987 set aside.

9. The senior counsel for the appellant before us also has argued that in

the absence of the original Certificate, there could be no finding of forgery.

It is contended that in the face of the plea and evidence of the appellant, that

at the time of joining the employment he had handed over the original to the

Accounts Officer and in the absence of the Bank producing the said

Accounts Officer, it has to be necessarily held that the original is in

possession of the respondent Bank and which the respondent Bank has failed

to produce.

10. We however enquired from the senior counsel for the appellant

whether the appellant disputes that the copy produced by the respondent

Bank from its record is not the copy of the original, even if submitted by the

appellant. The senior counsel confirms that the copy produced by the

respondent Bank is the true copy of the original submitted and that the

appellant stands by the same. That being the position, it does not matter

whether the original is produced by the respondent Bank or not inasmuch as

per the appellant also he had secured the appointment on the basis of the

Certificate showing him to have secured 439 marks out of 900 marks and as

detailed hereinabove.

11. The senior counsel for the appellant has next sought to poke holes in

the verification report dated 06.04.1983 sent by the Punjab University in

response to the queries of the Bank. It is again argued that the total therein

of 339 is wrong.

12. The learned Single Judge has however given cogent reasons dealing

with the aforesaid challenge to the verification report dated 06.04.1983 and

the appellant is unable to controvert the same. The reasoning given by the

learned Single Judge is in consonance with the practice even otherwise

prevalent in general, of the marks in the examination in the subsidiary

subjects being only qualifying and being not counted in the ultimate result.

13. The senior counsel for the appellant has next contended that without it

being established that it was the appellant who had forged the Certificate

submitted by him, he could not have been meted out the punishment of

dismissal from service. Though the said argument may appear attractive, it

is bereft of logic. Admittedly, it was the appellant who produced the

document which has been found to be at variance from the records of the

University. The said document was admittedly produced to secure

employment and in the absence whereof employment would not have been

given to the appellant. The only person who could have any interest in

fudging, forging and manipulating the document could be the appellant and

no one else. The senior counsel for the appellant contends that mistake

could also be that of the University. We have enquired, whether the

appellant in the last nearly 40 years since when the issue is pending has

made any enquiries from the University or approached the University that

the verification report dated 06.04.1983 sent by them is at variance with the

Certificate issued by the University to him. The senior counsel for the

appellant while affirming that the appellant has not made any such efforts

contends that it was not necessary for him as the onus to prove that he had

fudged the mark sheet was on the respondent Bank. Such argument

demonstrates the falsity of the case set up. Any honest person, if had been

meted out such fate by the University, would have immediately contacted

the University and pointed out the discrepancy. There is nothing to suggest

that the verification report dated 06.04.1983 is not as per the records

maintained by the University. The only reason for the appellant not so

approaching the University can be that the appellant knows the report to be

correct.

14. The senior counsel for the appellant then contends that there could a

mistake by the University in the certificate issued to the appellant,

mentioning the marks in the subjects of English and Mathematics as 84 and

82 respectively instead of 64 and 52. However we have pointed out to the

senior counsel that the discrepancy is not only in the marks but even in the

division obtained by the appellant. While the appellant in the Certificate

produced by him shows him having secured second division, the verification

report clearly shows the appellant to have obtained third division. There is

again no answer thereto.

15. The senior counsel for the appellant has lastly contended that the

appellant had no reason to fudge / fabricate the document and which

argument had prevailed with the Industrial Adjudicator also. Attention in

this regard is invited to the document at page 195 of the paper book, which

though providing for the „Educational Qualifications for Recruitment to

clerical cadre‟ had clarified that "For sons / daughters of employees the

minimum qualification will be matriculation with English and

Mathematics".

16. There is however inherent fallacy in the aforesaid argument. Even as

per the appellant there was a selection procedure; in the said selection

procedure, the better candidate would be selected. The appellant on the

basis of the marks fudged, forged and fabricated by him portrayed himself as

a better candidate over many others and got selected. The counsel for the

respondent Bank also affirms that the marks obtained were relevant and a

criteria for selection.

17. We therefore do not find any merit in this appeal which is dismissed.

We refrain from imposing any costs on the appellant.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE DECEMBER 18, 2012 „gsr‟