Jharkhand High Court
Shri Paritosh Kumar Rai vs The Union Of India Through ... on 4 February, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 1422 of 2016
Shri Paritosh Kumar Rai, aged about 32 years, son of Shri Saroj
Kumar Rai, resident of Railway Quarter No. DS/1/20-C, Near
Children Park, Bokaro Steel City, P.O. & P.S.-Town and District-
Bokaro ... ... ... Petitioner
Versus
1. The Union of India through Ministry of Railways, represented
through Secretary, Rail Bhawan, New Delhi-110001
2. The General Manager, South East Central Railway, Zone
Bilaspur, PIN No. 495004
3. The Senior Divisional Personnel Officer, South East Central
Railway, Rai Division, Raipur, Chhatisgarh, 492008
4. The Divisional Railway Manager (P), Raipur-492008
5. The Assistant Area Manager, South Eastern Railway, Bokaro Steel
City, P.O. and P.S. Town and District-Bokaro
... ... Respondents
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CORAM: HON'BLE MR.JUSTICE APARESH KUMAR SINGH
HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Petitioner : Mrs. M.M. Pal, Senior Advocate
Ms. Mahua Palit, Advocate
Ms. Aparajita Sinha, Advocate
For the Respondents : Mr. Mahesh Tewari, Advocate
Through Video Conferencing
C.A.V. On 05/10/2020 Pronounced on 04/02/2021
Per Anubha Rawat Choudhary, J.
1. Heard Mrs. M.M. Pal, learned senior counsel appearing
on behalf of the petitioner along with Ms. Mahua Palit and Ms.
Aparajita Sinha, Advocate.
2. Heard Mr. Mahesh Tewari, learned counsel appearing on
behalf of the respondents.
3. This writ petition has been filed challenging the
judgement dated 9th December, 2015, passed in O.A. No.
260/2012(R) (Annexure-13) by the learned Central
Administrative Tribunal, Circuit Bench, at Ranchi, whereby
O.A. filed by the petitioner has been dismissed.
The O.A was filed by the petitioner against the order dated
13.11.2012 (Annexure-10) as well as the order dated 26.11.2012
(Annexure-12) whereby the service of the petitioner has been
terminated. The petitioner has also prayed for a direction upon
the respondents to reinstate the petitioner with back wages to
his original post as consequential relief.
Arguments of the Petitioner.
4. It is submitted by the learned senior counsel for the
petitioner that the General Manager of Railways have
discretionary power to engage substitute in railways against
Group-D post in terms of circular dated 04.11.1992 (Annexure-
2) and amongst other, the said circular provides that the new
appointment of new face as substitute should be made only
with prior approval of the General Manager.
5. It has been argued by the learned senior counsel for the
petitioner that the petitioner, being an intermediate by
qualification and a sports person (football player), applied vide
several applications before the General Manager, East Central
Railway, for consideration of his candidature for employment
in Group-D post and his candidature was considered.
Accordingly, the petitioner was offered temporary
employment in Group-D post in the scale of Rs. 2550-3200 vide
order dated 06.11.2006 (Annexure-3) issued by the Assistant
Divisional Personnel Officer, South East Central Railway,
Raipur. It is the case of the petitioner that the appointment on
temporary basis was issued to the petitioner on the basis of
C.P.O. /BSP's letter dated 03.11.2006 as is apparent from letter
of appointment itself. After medical examination, the
petitioner was allowed to join his post at Raipur vide an order
dated 17.11.2006 (Annexure-4). The petitioner along with
another namely Abhijit Dutta was sent for initial training and
after completion of training the petitioner along with two
others namely Abhijit Dutta and Kaushik Ghosh were spared
for posting vide order dated 18.12.2006 (Annexure-5).
6. It is the case of the petitioner that all the three new
recruits including the petitioner were posted against the direct
recruitment quota vide order dated 02.01.2007 (Annexure-6)
issued by the Assistant Personal Officer (Cadre) Raipur for
senior D.P.O./Raipur wherein it was categorically mentioned
that the candidates named in part-A have been approved by
the GM/SECR/BSP for engagement as Substitute Group-D in
the scale of Rs. 2550-3200 (RSRP) against direct recruitment
quota vide CPO/SECR/BSP's letter dated 03.11.2006 and on
successful completion of safety training course, they were
posted as sub porter at the station mentioned therein.
7. Further case of the petitioner is that the petitioner along
with others were performing their duties in the post of sub
porter and they were issued letter dated 14.05.2007 (Annexure-
7) by the Assistant Personal Officer, at Raipur and were
directed to appear on 16.05.2007 for their screening for regular
absorption of substitute helper in the scale of 2550-3200 and
upon appearing, vide order dated 19.06.2007 (Annexure-8) the
petitioner was declared suitable by the duly constituted
screening committee and was regularized in his service w.e.f.
30.05.2007.
Thereafter the petitioner made an application for mutual
transfer which was accepted vide office order dated 05.06.2008
and the petitioner was transferred from Raipur Division of
South East Central Railway, to Aadra Division of South
Eastern Railway upon mutual transfer and he joined the post
at Pundag, Ranchi. He was again transferred from Pundag to
Bokaro Steel city and he joined Bokaro on 02.01.2009. The
specific case of the petitioner is that right from his initial
appointment, his work was throughout found satisfactory and
there was no complain against him.
8. However, the petitioner was directed to attend the office
of the Vigilance on 01.07.2007 in a vigilance investigation. A
letter dated 21.06.2011 (Annexure-9) issued by the Assistant
Vigilance Officer (Personnel) was served upon the petitioner.
The Senior Divisional Operational Manager was requested to
spare the petitioner to appear with his original certificates in
connection with ongoing vigilance investigation and
accordingly the petitioner was spared and he appeared in the
chamber at Bilaspur on 01.07.2011.
It is submitted that after lapse of one year and four months, the
petitioner was served with notice for termination dated
13.11.2012 (Annexure-10) issued by the Assistant Area
Manager/South Eastern Railway whereby the petitioner was
informed that after investigation on his engagement/
appointment as substitute grade-D Raipur Division, his
engagement was found fraudulent as grave lacunae was found
in the initial appointment of the petitioner alleging that prior
personal approval of the General Manager as per RBE No.
185/92 was not taken and hence the competent authority has
decided to take appropriate action to terminate his services
with immediate effect.
9. The petitioner immediately submitted a detailed
representation dated 21.11.2012 (annexure-11) against the
termination dated 13.11.2012 (annexure-10) stating that he was
appointed after due selection and only on direction he
appeared before the concerned vigilance official at Bilaspur on
01.07.2011 where he was put some questions to which he
replied and at that time he was shown some paper having
white band of whitener on his name in the list and was tried to
acknowledge as un-included. The specific case of the petitioner
in his representation was that enquiry so made by the
Vigilance Officer was neither impartial nor logical and
according to the rules of disciplinary proceedings no copy of
the vigilance enquiry details was served upon him. It was
submitted in the representation that imposition of termination
can be done only after departmental proceeding as per
Disciplinary and Appeal Rules, 1968 after affording an
opportunity to the petitioner to defend his case.
10. The grievance of the petitioner is that without
considering his representation, the Assistant Area Manager,
issued his order of termination dated 26.11.2012 (Annexure-12)
stating specifically that his appointment as substitute Group-D
was found fraudulent as the initial appointment of any fresh
case of substitute on the railway requires prior personal
approval of the General Manager as per RBE No. 185/92 [Estt.
Sr. No. 189/92] which was not taken in his case and
accordingly his appointment was void ab initio. The petitioner
had challenged the aforesaid orders dated 13.11.2012 and
26.11.2012 before the learned Central Administrative Tribunal,
which was numbered as O.A. No. 260 of 2012 (R).
11. It has been argued by the learned senior counsel for the
petitioner that the petitioner was regularized in service vide
order dated 19.06.2007 as such regular service of the petitioner
could not be terminated without any charge sheet and without
any departmental proceeding and the impugned action of
termination of the petitioner is in contravention of Article 311
(2) of the Constitution of India. For this the petitioner has
relied upon judgments passed by the Hon'ble Supreme Court
reported in (2016) 8 SCC 471 (Avtar Singh vs. Union of India &
Others); (2010) 2 SCC 169 (Kamal Nayan Mishra vs. State of
Madhya Pradesh & Others) and (2008) 1 PLJR 841 (Ram
Krishna Dubey vs. The State of Bihar & Ors.). The petitioner
has reiterated that the petitioner was a regular employee of
Railway since 30.05.2007 i.e. the date of his regularization and
his services are governed by Railway Service Discipline and
Appeal Rules, 1968 and thus his services could be terminated
only in the prescribed manner under Railway Service
Discipline and Appeal Rules, 1968 i.e. after issuance of charge
sheet and after departmental proceeding, whereas in the
present case the petitioner has been removed from his service
alleging fraud vide termination order dated 26.11.2012 by way
of punishment without any charge sheet and accordingly
without any regular departmental proceeding. She submits
that allegation of fraud amounts to serious misconduct and
same cannot be said to have been proved in the instant case.
She also submits that no punishment can be imposed only on
the basis of vigilance enquiry report which was conducted at
the back of the petitioner and thereby without giving proper
opportunity to the petitioner to defend his case and to cross
examine the complainant/ witnesses and as such no
punishment can be imposed on that basis. The petitioner has
also relied upon the judgments passed by the Hon'ble
Supreme Court (2013) 4 SCC 301 (Nirmala J. Jhala vs. State of
Gujarat & Another) and (2011) 6 SCC 376 (Commissioner of
Police, Delhi & Others vs. Jai Bhagwan) to state that such
finding of fraud, without giving proper opportunity to the
petitioner to defend himself, cannot be treated as proved.
12. The learned counsel has also submitted that the decisions
passed by the Hon'ble Supreme Court and relied upon in the
impugned judgement passed by learned tribunal reported in
(2003) 8 SCC 311 (Ram Preeti Yadav versus U.P. Board of High
School and Intermediate Education and Others) and in (2007)
2 SCC 355 (Hasham Abbas Sayyad vs. Usman Abbas Sayyad
& Others) are not applicable on the facts and circumstances of
this case.
13.It has also been stated that the petitioner is out of service since
26.11.2012 and was never gainfully employed in any
establishment during this period and as such he is entitled for
reinstatement with full back wages and with all consequential
benefit. The petitioner has relied upon the judgment passed by
the Hon'ble Supreme Court reported in (2013) 10 SCC 324
[Deepali Gundu Surwase vs. Kranti Junior Adhyapak
Mahavidyalya (D. ED.) & Others].
14. The learned counsel submits that the aforesaid aspects of
the matter have not been properly considered by the learned
Central Administrative Tribunal while dismissing the O.A.
Arguments of the Respondents.
15.The learned counsel for the respondents has submitted that a
specific stand was taken by the respondents before learned
tribunal that it was clear case of fraudulent appointment
planned and devised by one of the Junior Administrative
Grade Officer with an oblique motive of providing unjustified
employment. According to the respondents, a fake
appointment had taken place while processing the
appointment of genuine candidates forwarded by headquarter
(Chief Personnel Officer, South East Central Railway, Bilaspur)
vide letter dated 03.11.2006 containing therein the names of 18
genuine candidates whose candidature were approved by the
General Manager, Bilaspur. It was the case of the respondents
that apart from the 18 genuine candidates, the name of the
petitioner was also fraudulently included for appointment to
the post of substitute Group-D at the behest of Sri G. Shety, the
then Sr. D.P.O./SEC Railway. The matter was investigated by
the Vigilance Department where it was detected that the
appointment of the petitioner was secured by illegal and
fraudulent means and consequently the appointment of the
petitioner was declared void by the competent authority.
16.On the point of natural justice, it was contended that the
petitioner was served with the show-cause notice dated
13.11.2012 as to why his services should not be terminated on
the above ground. The petitioner had submitted his
representation dated 21.11.2012. After careful consideration of
the representation and upon going through the facts and
circumstances and the records, the competent authority had
passed the order dated 26.11.2012, terminating the services of
the petitioner with immediate effect.
17.It was also submitted by the respondents that under the
departmental appeal rules (DAR Rules) and in consultation
with the Central Vigilance Commission, New Delhi, action has
already been taken against the alleged junior administrative
grade officer and other officials whose direct involvement was
there in the fraudulent appointment of the petitioner.
Arguments of the petitioner in rejoinder.
18.A rejoinder to the counter affidavit was filed on 11.11.2019
wherein it was stated that it is the own admission of the
respondents that departmental proceeding was started against
Mr. G. Sethy, Sr. DPO Raipur but the result of the
departmental proceeding not disclosed which has a direct
bearing in this case as against this petitioner it has been
specifically alleged that on fraud & with connivance of Mr.
Sethy, Sr. DPO Raipur the petitioner was appointment. It has
also been stated that as per the information of the petitioner no
punishment has been imposed on him in connection with the
appointment of the petitioner rather Mr. G. Sethy, Sr. DPO has
been promoted to the post of Dy. CPO and now is posted as
Dy. CPO/Bhubaneswar East Coast Railway. The learned
counsel referred to para 12 to 15 of the said rejoinder.
19.On 03.12.2019 when the present writ petition was taken up, it
was submitted that the impugned order of termination dated
26th November, 2012 was passed after regularization of the
petitioner vide order dated 19th June, 2007 (Annexure-8) issued
under the signature of Assistant Personal Officer for Divisional
Railway Manager (P), Raipur and with the approval of the
competent authority. It was also submitted that without any
disciplinary enquiry, the services of the petitioner has been
terminated only after issuance of a show cause by an authority
inferior to the competent authority.
Upon this submission, learned counsel for the respondents
were granted time to obtain instruction to respond to the
aforesaid submission made on behalf of the petitioner.
20.Pursuant to the order, the respondents submitted before this
court a copy of the instruction dated 08.09.2020 issued by the
Assistant Personal Officer, II for Senior Divisional Personal
Officer, which is kept on record. Consequently, the petitioner
filed a rejoinder to the said statement.
21.The petitioner has specifically stated in the rejoinder to the said
statement/instruction dated 08.09.2020 that it is a fact that the
petitioner being eligible and qualified for his employment
group-D substitute applied for the post along with details and
certificates (Annexure-1) and after considering his candidature,
by a letter dated 06.11.2006 issued by the Assistant Divisional
Personal Officer, petitioner was offered employment as
substitute Group-D ; he was given the temporary status on and
from 17.03.2007 and after screening and found suitable, he was
regularized by the order dated 19.06.2007 by the Railway
Manager (P) Raipur, with the approval of the competent
authority.
22.Learned counsel submits that the original application of the
petitioner was dismissed by the impugned order holding that
there is clear case of entering into service by playing fraud and
that too without any proper authority and therefore the very
entry of the petitioner was ipso facto illegal and without any
legal basis and it was held that since the show cause was
issued to the petitioner, he was given ample opportunity and
accordingly no prejudice has been caused to the petitioner.
23. The learned counsel submits that the records of the case
shows that the petitioner has been highly prejudiced due to
total non-compliance of principles of natural justice and fair
play and the termination of the petitioner without any charge
sheet and consequently without any departmental proceedings
is ex-facie illegal and fit to be set-aside.
Findings of this court
24.The undisputed facts are as under.
a. The General Manager of Railways have discretionary
power to engage substitute in railways against Group-D
post in terms of circular dated 04.11.1992 and
appointment of a new face as substitute could be made
only with prior approval of the General Manager.
b. A letter of appointment was issued to the petitioner vide
order dated 06.11.2006 by the Assistant Divisional
Personal Officer, South East Central Railway, Raipur in
which reference of letter dated 03.11.2006 was
mentioned.
c. The petitioner completed the training and was declared
suitable by the Screening Committee and was
regularized with effect from 30.05.2007.
d. The petitioner appeared before the Assistant Vigilance
Officer of the Railways pursuant to letter dated
21.06.2011.
e. A show cause dated 13.11.2012 was issued mentioning
that after investigation on the appointment of the
petitioner as substitute Group-D, the
engagement/appointment was found fraudulent and
accordingly the competent authority had decided to take
appropriate action to terminate the service of the
petitioner with immediate effect. The only allegation was
that the petitioner was appointed without prior personal
approval of the General Manager in terms of circular
being RBE No. 185/92 and accordingly, the appointment
of the petitioner was ab initio null and void. The
petitioner was called upon to file a representation, if any,
regarding the aforesaid within 10 days.
f. The petitioner immediately submitted a detailed
representation dated 21.11.2012 against the show cause
dated 13.11.2012 stating that he was appointed after due
selection and only on direction he appeared before the
concerned vigilance official at Bilaspur on 01.07.2011
where he was put some questions to which he replied
and at that time he was shown some paper having white
band of whitener on his name in the list and was tried to
acknowledge as un-included. The specific case of the
petitioner in his representation was that enquiry so made
by the Vigilance Officer was neither impartial nor logical
and according to the rules of disciplinary proceedings no
copy of the vigilance enquiry details was served upon
him. It was submitted in the representation that
imposition of termination can be done only after
departmental proceeding as per Disciplinary and Appeal
Rules, 1968 after affording an opportunity to the
petitioner to defend his case.
g. The representation of the petitioner was rejected vide
termination order dated 26.11.2012 reiterating the same
allegation as mentioned in the notice dated 13.11.2012 .
25.Admittedly the petitioner has been terminated on the basis of
vigilance enquiry and no charge-sheet was issued to the
petitioner and accordingly no departmental proceedings were
initiated against the petitioner. Admittedly no document was
ever issued to the petitioner pursuant to which it was alleged
that the appointment of the petitioner was fraudulent in
absence of prior personal approval of the General Manager.
Admittedly, the petitioner had stated in his representation that
during vigilance enquiry he was shown some paper having
white band of whitener on his name in the list and was tried to
acknowledge as un-included. It was also submitted that
imposition of termination can be done only after departmental
proceeding as per Disciplinary and Appeal Rules, 1968 after
affording an opportunity to the petitioner to defend his case.
26.The specific case of the petitioner is that the allegation of fraud
against the petitioner has not been proved and the petitioner
could not have been terminated without any departmental
proceeding as per Disciplinary and Appeal Rules, 1968 as the
petitioner was a confirmed employee of Railways after
completion of training and required procedure. Further case is
that the petitioner has been highly prejudiced by termination
without disciplinary proceedings as he did not have the
opportunity to examine the documents relied upon by the
respondents and no opportunity to cross examine any of the
witness/ complainant has been given.
27.The specific case of the respondents is that the appointment of
the petitioner is based on foundation of fraudulent means and
therefore the same is ab initio void and there was no need to
issue charge sheet or conducting regular enquiry in the case of
the petitioner as he was not a railway employee on account of
fraudulent employment. It has also been pleaded that had the
petitioner been a genuine candidate appointed by following
the rules, then only being a railway employee, the Disciplinary
and Appeal rules, 1968 would have applied and as such the
charge sheet would have been issued and regular enquiry
would have been conducted.
28.It is further specific case of the respondents that the false
appointment was planned and devised by one Junior
Administrative Grade Officer with an intention to provide
employment to the outside person who was neither an
aspirant/candidate applied for the said employment nor his
candidature was processed and approved by the competent
authority i.e. a General Manager, South East Central Railway,
Bilaspur against the General Manager discretion quota for the
face of appointment as substitute group-D post.
The respondents have given certain facts in their submission
dated 08.09.2020 filed before this court that in the year 2006, a
proposal containing 64 applications was processed by the
Headquarter South East Central Railway for
engagement/appointment of new face group-D substitutes
against General Manager discretion quota and a proposal
containing a list of 64 candidates were put up before the
General Manager, South East Central Railway, at Bilaspur on
31.10.2006 for obtaining his personal approval and out of 64
candidates, he had approved 62 candidates for
appointment/engagement of group-D substitute at South East
Central Railway (Annexure-B). After obtaining the approval of
the General Manager at Bilaspur the names were immediately
forwarded to the Division/ Unit (Annexure-C) and eventually
the letter of the Headquarter dated 03.11.2006 containing the
name of 18 candidates addressed to DRM/R was received by
the said Sri G. Shety and then by Sr. D.P.O./R and they were
instructed to issue offer of appointment and other subsequent
formalities including medical test, training posting etc. It is the
specific case of the respondents that neither the name of the
petitioner appeared in the list of 64 candidates who applied for
employment in Group-D substitute against General Manager
discretion quota, nor his name appeared in 62 candidates
approved list wherefrom 18 names of the candidates were
forwarded to Raipur Division and in Raipur Division the name
of the petitioner was processed for appointment along with 18
candidates by resorting to unfair means under the instruction
of said Sri G. Shety which surfaced during the course of
vigilance investigation. It has also been mentioned that Sri G.
Shety on receipt of the letter from the Headquarter dated
03.11.2006 neither put up the same before the DRM/Raipur
nor handed over to the concerned dealing person but called
upon the Chief Office Superintendent of recruitment section
and showed a list of 19 candidates by including the name of
the petitioner and instructed to prepare offer of appointment
letters to 19 candidates by including the name of the petitioner
and consequently offer of appointment was issued to all 19
persons including the petitioner and since 19 appointment
letters were issued, therefore all the consequential formalities
including medical test etc. were completed as routine manner
and finally the petitioner was posted as substitute Group-D.
Consequently, the petitioner after issuance of show cause was
ultimately terminated.
The specific case of the respondents is that it was manifest
from the documentary evidence that the case of the petitioner
is self proved and that the appointment of the petitioner has
been made based on fraudulent means and therefore it did not
require any detailed and departmental enquiry.
29.In the present case, it is not in dispute that an appointment
letter was issued to the petitioner and it is also not in dispute
that the petitioner could have been appointed only after due
approval of the General Manager, but the specific case of the
respondents is that neither the name of the petitioner was
included amongst the 64 candidates whose names were
considered for the purposes of appointment by the General
Manager nor his name appeared in the list of 62 candidates
whose names were ultimately recommended for appointment
nor the name of the petitioner figured amongst the 18
candidates who were to be appointed rather the name of the
petitioner was inserted as a nineteenth candidate at a later
stage at the behest of Sri G. Shety, the then Sr. D.P.O./SEC
Railway against whom the respondents had proceeded
departmentally. On the basis of the aforesaid it is submitted
that the appointment of the petitioner was fraudulent.
30. I find that in letter of show cause for termination as well as the
letter of termination the only allegation is that the candidature
of the petitioner was never approved by the General Manager,
but the aforesaid detailed facts , as have been mentioned above
were not mentioned. It is further not in dispute that the show
cause for termination was based on vigilance enquiry in which
the petitioner was neither provided any document relied upon
by the respondents nor was entitled to cross examine any
witness/complainant.
31.I further find that in the representation pursuant to the show
cause, the petitioner had mentioned that when he had
appeared for the vigilance enquiry, some documents were
shown to him and amongst those documents, the document
using whitener was also there to show that the name of the
petitioner was not included and that he had demanded copies
of the documents which were never furnished. These aspects
of the matter have not been dealt with in the impugned order
of termination and thus the impugned order of termination is
completely non speaking on the points raised by the petitioner
in the representation filed pursuant to show cause for
termination.
32.I find that on the one hand, the authorities did not put the
entire relevant fact regarding non-approval of his name by the
General Manager while issuing him the notice for termination,
and on the other hand, the petitioner has been deprived of
examining the documents on the basis of which such allegation
was made. The use of whitener in any document as indicated
by the petitioner in his representation, if relied upon by the
respondents, could have a serious bearing in the matter and
accordingly, the petitioner has been highly prejudiced by non -
supply of the relied upon documents and by non-disclosure of
the entire materials on the basis of which it was alleged that
the name of the petitioner was not approved by the General
Manager and accordingly alleged that the appointment of the
petitioner was fraudulent.
33.I find that in the rejoinder to the counter-affidavit filed vide
affidavit dated 11.11.2019, in response to the statement filed
by the respondents dated 08.09.2020 the petitioner has clearly
stated that although a large number of facts in connection
with the case have been mentioned, but it does not disclose as
to what ultimately happened to Mr. G. Sethy, the then Sr.
D.P.O./SEC Railway, at whose behest it has been alleged that
a list of 19 candidates by including the name of the petitioner,
instead of 18 candidates as approved by the General Manager,
was forwarded. In the rejoinder filed by the petitioner vide
affidavit dated 11.11.2019, it has been specifically stated that so
far as the alleged enquiry proceeding against Sri G. Shety, the
then Sr. D.P.O./SEC Railway is concerned, as per the
information of the petitioner, no punishment has been
imposed on him in connection with the appointment of the
petitioner, rather Mr. G. Sethy, Sr. DPO has been promoted to
the post of Dy. CPO and now is posted as Dy.
CPO/Bhubaneswar East Coast Railway.
34.In the judgement passed by the Hon'ble Supreme Court
reported in (2013) 4 SCC 301 (supra), it has held that the
preliminary enquiry may be useful only to take a prima facie
view as to whether there can be some substance in the
allegation made against an employee which may warrant a
regular enquiry. The Hon'ble Supreme Court has also referred
to numerous judicial decisions to observe that a prima facie case
does not mean a case proved to the hilt. A case can be said to
be established if the evidence which is led in support of the
case were to be believed, and while determining whether a
prima facie case had been made out or not, the relevant
consideration is whether on the evidence led it was possible to
arrive at the conclusion in question and not whether that was
the only conclusion which could be arrived at on that evidence.
35.The Hon'ble Supreme Court in the aforesaid judgement while
referring to Constitutional Bench judgments, observed at
paragraph Nos. 42 to 48 as under: -
"42. A Constitution Bench of this Court in Amalendu
Ghosh v. North Eastern Railway, held that the purpose of
holding a preliminary inquiry in respect of a particular
alleged misconduct is only for the purpose of finding
particular fact and prima facie, to know as to whether the
alleged misconduct has been committed and on the basis
of the findings recorded in preliminary inquiry, no order
of punishment can be passed. It may be used only to take
a view as to whether a regular disciplinary proceeding
against the delinquent is required to be held.
43. Similarly in Champaklal Chimanlal Shah v. Union of
India a Constitution Bench of this Court while taking a
similar view held that preliminary inquiry should not be
confused with regular inquiry. The preliminary inquiry
is not governed by the provisions of Article 311(2) of the
Constitution of India. Preliminary inquiry may be held
ex parte, for it is merely for the satisfaction of the
Government though usually for the sake of fairness, an
explanation may be sought from the government servant
even at such an inquiry. But at that stage, he has no
right to be heard as the inquiry is merely for the
satisfaction of the Government as to whether a regular
inquiry must be held. The Court further held as under:
"12. ... There must therefore be no confusion between the
two enquiries and it is only when the government
proceeds to hold a departmental enquiry for the purpose
of inflicting on the government servant one of the three
major punishments indicated in Article 311 that the
government servant is entitled to the protection of that
article [, nor prior to that]."
44. In Narayan Dattatraya Ramteerthakhar v. State of
Maharashtra this Court dealt with the issue and held as
under:
"... a preliminary inquiry has nothing to do with the
enquiry conducted after issue of charge-sheet. The
preliminary enquiry is only to find out whether
disciplinary enquiry should be initiated against the
delinquent. Once regular enquiry is held under the
Rules, the preliminary enquiry loses its importance and,
whether preliminary enquiry was held strictly in
accordance with law or by observing principles of natural
justice of (sic) nor, remains of no consequence."
(emphasis added)
45. In view of the above, it is evident that the evidence
recorded in preliminary inquiry cannot be used in
regular inquiry as the delinquent is not associated with
it, and opportunity to cross-examine the persons
examined in such inquiry is not given. Using such
evidence would be violative of the principles of natural
justice.
46. In Ayaaubkhan Noorkhan Pathan v. State of
Maharashtra this Court while placing reliance upon a
large number of earlier judgments held that cross-
examination is an integral part of the principles of
natural justice, and a statement recorded behind back of a
person wherein the delinquent had no opportunity to
cross-examine such persons, the same cannot be relied
upon.
47. The preliminary enquiry may be useful only to take a
prima facie view, as to whether there can be some
substance in the allegation made against an employee
which may warrant a regular enquiry.
48. A prima facie case does not mean a case proved to the
hilt but a case which can be said to be established if the
evidence which is led in support of the case were [to be]
believed. While determining whether a prima facie case
had been made out or not the relevant consideration is
whether on the evidence led it was possible to arrive at
the conclusion in question and not whether that was the
only conclusion which could be arrived at on that
evidence."
36. I am of the considered view that vigilance enquiry is totally
different from a regular departmental enquiry and it is only in
the regular departmental enquiry that the delinquent is
entitled for cross-examination of the witnesses and
compliances of other facets of principles of nature justice. It is
not in dispute that the petitioner was not only issued the
appointment letter, but was also confirmed after completing all
the required formalities and a serious allegation of fraudulent
appointment has been made against the petitioner. There is no
doubt that an act of fraud vitiates all acts and if proved, would
certainly nullify the appointment of the petitioner. However,
the allegation of fraud is required to be proved. Admittedly
regular departmental proceedings have not been conducted in
the present case as no charge-sheet was ever served upon the
petitioner. The petitioner was simply issued a show cause
notice for termination and an opportunity to file representation
against his proposed termination and the petitioner denied the
allegations and requested for a regular departmental enquiry.
The order of termination does not even deal with the points
raised by the petitioner in his representation against the
proposed termination.
37.The learned Tribunal has rejected the requirement of holding a
regular departmental enquiry on the ground there is a clear
case of entering into the service by playing fraud and that too
without any proper authority thereafter relied upon the
judgment passed by the Hon'ble Supreme Court in the case
reported in (2003) 8 SCC 311 (supra) wherein it has been held
that once fraud is proved, it will deprive the person of all
advantages or benefits obtained thereby and delay in detection
or taking action will raise no equities. The learned Tribunal
further held that once fraud committed by the petitioner and is
detected and proved, the petitioner cannot be protected and he
cannot be permitted to reap the benefit of his fraudulent action
which he carried out in connivance with some public servants
at the helm of affair, thereby depriving genuine job seekers.
The learned Tribunal also considered the pronouncement of
the Hon'ble Supreme Court that any order which has been
obtained by fraud cannot be allowed to stand, even if by a
delayed reference when the foundation for the same is alleged
fraud and a person who has obtained the appointment by
illegitimate means, cannot be permitted to enjoy it when there
is a finding that he does not have even a shadow of right to be
considered for appointment. In this background, the learned
Tribunal dismissed the case of the petitioner in the following
words: -
"Fraud is proved in the instant case, as there was false
representation and the whole case was manufactured. Since
the very entry of the applicant was ipso facto illegal and
without any illegal basis, he is not entitled to any protection.
Since the show cause notice was issued to the applicant and
he was given ample opportunity, no prejudice is caused.
Further the applicant has no document to substantiate before
this Tribunal and to show that his entry in service was
bonafide and legal. Further claim of the respondent that they
have proceeded against errant officers for fraudulently
manufacturing approval and appointment letter lends
support to the claim of the department that very entry of the
applicant was illegal and was the result of a conspiracy
coupled with fraudulent action. Since the applicant was the
beneficiary, he cannot be permitted to reap the benefit of this
fraudulent action in connivance with some unscrupulous
public servants. It may be concluded that, in such a case no
regular proceeding is required to be initiated as is done in the
case of other permanent government servant, entering into
service with a genuine appointment process. Hence ordered."
38. I fully agree with the submissions of the learned senior
counsel for the petitioner that under the facts of this case the
alleged charge of fraudulent appointment cannot be said to
have been proved only by vigilance enquiry wherein
neither there was any scope for cross- examination of any
witness/complainant nor any documents, which formed the
basis of the allegation of fraudulent appointment of the
petitioner, were referred to in the show cause notice for
termination/order of termination nor such documents were
served upon the petitioner. Even the point raised by the
petitioner in his representation were not considered while
passing the order of termination. In the representation the
petitioner had also raised a point that even whitener was used
on one of the documents shown to him during vigilance
enquiry on the basis of which it was alleged that the name of
the petitioner was never approved by the General Manager.
The charge of fraud which is a serious misconduct, cannot be
said to be proved under the facts and circumstances of this
case and accordingly the tribunal proceeded on an erroneous
premise that the allegation of fraud was proved and
consequently dismissed the O.A. In the facts of this case the
allegation of fraud, which has been disputed by the petitioner
right from the beginning, is required to be proved in course of
departmental proceeding under the facts and circumstances of
this case.
39.As a cumulative effect of the aforesaid findings, the impugned
judgement dated 9th December, 2015, passed in O.A. No.
260/2012 (R) (Annexure-13) by the learned Central
Administrative Tribunal, Circuit Bench, at Ranchi, is hereby set-
aside and the impugned order dated 26.11.2012 (Annexure-12),
whereby the service of the petitioner has been terminated, is also
set-aside.
40. Consequently, the petitioner is reinstated in the services
only for the purposes of conducting regular departmental
enquiry on the alleged charges. The Authority / Management
shall have the liberty to proceed with the disciplinary enquiry by
placing the petitioner under suspension. The competent
authority of the respondents may issue a charge-sheet within a
period of one month from the date of receipt of a copy of this
judgment and conclude the proceedings in accordance with law
as expeditiously as possible, preferably within a period of 6
months from the date of initiation of departmental proceedings.
41. Depending upon the outcome of disciplinary enquiry,
while considering the issue regarding consequential benefits, the
Disciplinary Authority may keep into mind the law laid down by
the Hon'ble Supreme Court in the case of R. Vishwanatha Pillai
Versus State of Kerala [(2004) 2 SCC 105 and also ECIL Versus
B. Karunakar (1993) 4 SCC 727].
42. This writ petition is allowed in the aforesaid terms and to
the extent indicated hereinabove.
43. All pending Interlocutory Applications are closed.
(Aparesh Kumar Singh, J.)
I Agree.
(Aparesh Kumar Singh, J.)
(Anubha Rawat Choudhary, J.)
Binit/
