Kaptan Singh vs Union Of India
2022 Latest Caselaw 8445 MP

                            1

     IN THE HIGH COURT OF MADHYA PRADESH
                  AT GWALIOR

                         BEFORE

 HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA

                ON THE 27th OF JUNE, 2022

              WRIT PETITION NO. 1452 of 2009

  Between:-

  KAPTAN SINGH SON OF SHRI
  SALIGRAM,   AGED ABOUT 36
  YEARS,  OCCUPATION      :  EX-
  CONSTABLE NO.911132465 (CT/GD)
  CRPF, BHOPAL, AT PRESENT
  RESIDENT OF VILLAGE / TOWN :
  MAHALGAON,    P.S.  GWALIOR,
  DISTRICT GWALIOR - 474002
  (MADHYA PRADESH)

                                         ........PETITIONER

  (BY SHRI D.P. SINGH - ADVOCATE)

  AND

1. UNION OF INDIA THROUGH THE
   SECRETARY, DEPARTMENT OF
   HOME, NEW DEHLI.

2. THE INSPECTOR GENERAL OF
   POLICE,      SPECIAL SECTOR,
   C.R.P.F., DEHLI.

3. THE DIGP, C.R.P.F., BANGRASIA,
   BHOPAL (MADHYA PRADESH)
                                            2


     4. THE ADDITIONAL DIGP, GROUP
        CENTRE, CRPF, BHOPAL (MADHYA
        PRADESH).

     5. THE    ADDITIONAL    DEPUTY
        INSPECTOR GENERAL OF POLICE,
        GROUP     CENTRE,     C.R.P.F.,
        ALLAHABAD (UTTAR PRADESH)

     6. THE COMPANY COMMANDER
        (ADMINISTRATIVE    COMPANY),
        GROUP CENTRE, C.R.P.F., BHOPAL
        (MADHYA PRADESH)

     7. STATE OF           MADHYA PRADESH
        THROUGH            THE  COLLECTOR,
        GWALIOR

     8. THE    TEHSILDAR,   GORKHI
        REGION LASHKAR, GWALIOR

                                                           ........RESPONDENTS

        (SHRI PRAVEEN NEWASKAR - ADVOCATE FOR
RESPONDENT - UNION OF INDIA)
----------------------------------------------------------------------------------------
       This petition coming on for hearing this day, the Court passed the
following:
                                      ORDER

Record of the Departmental Enquiry is available.

1. This petition under Article 226 of the Constitution of India has been filed against the order dated 25.03.2006, by which services of the petitioner have been terminated on the ground that he had procured job by submitting forged certificate of Scheduled Tribe as well as against the

order passed by the Appellate Authority thereby rejecting the appeal filed by the petitioner.

2. The facts necessary for disposal of present petition in short are that the petitioner participated in the proceedings for recruitment to the post of Constable initiated by CRPF / Employer. He was selected and appointed on 03.07.1991 in CRPF as Constable. He was enlisted on 15.07.1991 and was allotted No.911132465. It is claimed by the petitioner that from the date of his appointment till his removal from service by order dated 25.03.2006, he was discharging his duties with full sincerity and devotion. In the month of July, 2005, when the petitioner was posted in Bhopal, one order was issued by the respondent thereby requiring the petitioner to participate in the departmental enquiry on the allegation that the petitioner has procured job by producing the forged caste certificate. The petitioner participated in the enquiry proceedings and it is alleged that the documents which were mentioned in the charge-sheet were not supplied in spite of the request made by the petitioner. Since the documents on which respondent department was placing reliance were not supplied, therefore, the petitioner approached this Court by filing W.P. No.3483/2006. An order was passed to the effect that if the petitioner makes an application by 10th April, 2006, then the same shall be decided. As per the charge-sheet, main charge against the petitioner was that caste certificate dated 20.08.1990 relied upon by the petitioner for procuring job was a forged one and this information came to the knowledge to the respondents by letter dated 08.06.2004. It is submitted that the letter dated 08.06.2004 was never supplied or shown to the petitioner during the departmental enquiry. Even the said letter was

not exhibited. It is alleged that without properly considering the reply filed by the petitioner, Enquiry Officer illegally held that the charges alleged against the petitioner has been proved and he has procured job by submitting forged caste certificate and, accordingly, he was removed from service. The petitioner preferred an appeal which too has been dismissed.

3. Challenging the orders passed by the Court below, it is submitted by the counsel for the petitioner that the charge-sheet was issued on vague and bogues charges. The documents along with the charge-sheet were not supplied. The order of removal is disproportionate to the charges levelled against him and the department has not discharged its obligation to prove his charges.

4. Per contra, the petition is vehemently opposed by the counsel for the respondents. It is submitted that the charges which were levelled against the petitioner were clear and unambiguous. No complaint was ever made by the petitioner with regard to the vagueness in charges levelled against him. The petitioner never applied for supply of documents which were mentioned in the charge-sheet. Even otherwise, the documents were duly supplied. It is further submitted that the petitioner had approached this Court by filing W.P. No.3483/2006 which was disposed of on the first date, i.e., 22.03.2006 with a direction that in case, if an application with regard to non-supply of the documents, is made to any senior officer other than the disciplinary authority, then the same may be disposed of in proper perspective. Respondents filed an application for review, which was registered as MCC No.1076/2006 with a specific stand that no application was filed by the petitioner for supply

of documents and, therefore, the order passed by this Court in W.P. No.3483/2006 may be recalled. However, the said MCC was disposed of with an observation that the order passed in the writ petition is clear. It was directed that in case, if the petitioner files an application before 10.04.2006 for supply of documents, then the same shall be decided. The contention of the respondent that no application till 10.04.2006 was submitted by the petitioner is concerned, it was observed that if no such application has been filed, then the order passed by this Court shall speak for itself, therefore, it is clear that the ground raised by the petitioner regarding non-supply of documents is false. Even otherwise, the petitioner has not clarified the prejudice which was caused to him in the light of the charge that he had procured job on the basis of forged caste certificate. It is further submitted that it is incorrect to say that the order of removal is disproportionate to the charge levelled against him. The petitioner had procured the job on the basis of the forged caste certificate thereby depriving legitimate candidate to seek appointment. This conduct of the petitioner cannot be ignored or taken in a light manner. This conduct of the petitioner in procuring the job on the basis of forged documents is violative of the circulars as well as rights of members of the Scheduled Caste / Scheduled Tribe. It is incorrect to say that the department has not discharged its obligation. The report was called from the concerning Tahsildar who submitted that the caste certificate which was relied upon by the petitioner at the time of procuring job was never issued. Thereafter, during pendency of departmental enquiry, petitioner relied upon another set of evidence to show that his caste certificate was properly issued and the said document was also got verified and again it

was found that the subsequent evidence relied upon by the petitioner was also forged one and was never issued by the competent authority. It is further submitted that strict principle of Evidence Act are not applicable to departmental proceedings and, accordingly, the petitioner has been rightly removed from his service.

5. Heard the learned counsel for the parties.

6. Before adverting to the submissions made by the petitioner, this Court would like to consider the law governing scope of interference in departmental matters.

7. The Supreme Court in the case of Union of India and others Vs. Dalbir Singh by order dated 21.09.2021 passed in Civil Appeal No.5848/2021 has held as under:-

"29. The burden of proof in the departmental proceedings is not of beyond reasonable doubt as is the principle in the criminal trial but probabilities of the misconduct. The delinquent such as the writ petitioner could examine himself to rebut the allegations of misconduct including use of personal weapon. In fact, the reliance of the writ petitioner is upon a communication dated 1.5.2014 made to the Commandant through the inquiry officer. He has stated that he has not fired on higher officers and that he was out of camp at the alleged time of incident. Therefore, a false case has been made against him. His further stand is that it was a terrorist attack and terrorists have fired on the Camp. None of the departmental witnesses have been even suggested about any terrorist attack or that the writ petitioner was out of camp. Constable D.K. Mishra had immobilized the writ petitioner whereas all other witnesses have seen the writ petitioner being immobilized and being removed to quarter guard. PW-5 Brij Kishore Singh deposed that 3-4 soldiers had taken the Self-Loading Rifle (S.L.R.) 18 of the writ petitioner

in their possession. Therefore, the allegations in the chargesheet dated 25.2.2013 that the writ petitioner has fired from the official weapon is a reliable finding returned by the Departmental Authorities on the basis of evidence placed before them. It is not a case of no evidence, which alone would warrant interference by the High Court in exercise of power of judicial review. It is not the case of the writ petitioner that there was any infraction of any rule or regulations or the violation of the principles of natural justice. The best available evidence had been produced by the appellants in the course of enquiry conducted after long lapse of time."

8. Thus, it is clear that the High Court while exercising its power under Article 226 of the Constitution of India cannot act as an Appellate Authority and the proceedings of departmental enquiry can be quashed only when the order of punishment is passed on the basis of no evidence or on the ground of violation of principle of natural justice or on the ground of incompetence.

9. First contention of the counsel for the appellant is that the charge- sheet which was issued against the petitioner was containing vague charges.

10. The charge which was framed against the petitioner was that he has procured job in CRPF on the basis of forged caste certificate of Scheduled Caste and had suppressed this fact and it is an offence as per the provisions of Section 11(1) of CRPF Act, 1949 as well as the order No. 11012/7/91-Establishment(A) dated 19.05.1993. It was the allegation against the petitioner that on 03.07.1991 on the basis of forged certificate issued by the Tahsildar, Tahsil Gwalior, District Gwalior, the petitioner obtained employment in CRPF, Hyderabad (Andhra Pradesh) and suppressed that fact. Since the information was not given by the

petitioner, therefor, he continuously worked in CRPF in different units / group centers. This fraud was ultimately unearthed by CRPF, Allahabad and, accordingly, caste certificate was sent for verification to the Tahsildar, Tahsil Gwalior, District Gwalior by letter dated 05.05.2004. In reply to the aforesaid letter, the Tahsildar, Tahsil Gwalior, District Gwalior by his letter dated 08.06.2004 informed that the aforesaid caste certificate is not mentioned in the registration register and, therefore, the said caste certificate was not issued from the office of Tahsildar, Tahsil Gwalior, District Gwalior and thus, it was alleged that on the basis of forged caste certificate, the petitioner had obtained appointment against a post which was reserved for Scheduled Caste / Scheduled Tribe quota. After the Enquiry Officer was appointed, preliminary hearing was done by the Presiding Enquiry Officer on 05.12.2005. On 08.12.2005 statement of departmental witnesses namely Malkhan Singh and S.K. Khade were recorded and the petitioner was given opportunity to cross- examine them. Thereafter, the petitioner went on Earned Leave for a period of 10 days. On 30.12.2005 statements of the petitioner were recorded. On 03.01.2006 Enquiry Officer along with the petitioner came to Gwalior to verify the caste certificate. However, the petitioner refused to sign the proceedings and the said fact is also duly mentioned in the note-sheet. On 05.01.2006 the Enquiry Officer went to the village Mahalgaon and enquired from the villagers and neighborers and came back to Bhopal on 06.01.2006. On 12.01.2006 the petitioner sought 15 days time to produce his witnesses and documents. On 25.01.2006 the petitioner submitted an application containing the list of documents along with photocopies of three documents. On 27.01.2006 the petitioner

was informed that the defence witnesses cited by him shall not be summoned as they are irrelevant. On 06.02.2006 the petitioner sought permission for grant of leave for 10 days. On 21.02.2006 the petitioner submitted documents in his defence.

11. It is submitted by the counsel for the respondents that by letter dated 23.03.2004, Tahsildar, Tahsil Gwalior, District Gwalior had informed that the Tahsildar had himself conducted enquiry by visiting the spot and it was found that the address given by the petitioner is not correct and even the villagers have informed that the petitioner is not the resident of the said place and, accordingly, it was informed that in absence of correct address, it was not possible to conduct an enquiry and, therefore, a request was made to send the correct address of the petitioner. Thereafter, by order dated 08.06.2004 it was informed by the Tahsildar, Tahsil Gwalior, District Gwalior that the caste certificate is not mentioned in the register, therefore, it was never issued from the office of Tahsildar and a certificate was also given to the effect that the caste certificate does not contain the signature of the then Tahsildar Shri R.S. Kushwaha. During the pendency of the enquiry, the petitioner once again submitted another caste certificate which was not containing even the signature of the Issuing Officer or the date of issuance. It appears that the petitioner also submitted a copy of letter dated 14.02.2006 issued by the Tashildar, Tahsil Gwalior, District Gwalior which was addressed to Upper DIG, CRPF, Bhopal. The said document was again got verified and it was replied by the concerning department that the caste certificate relied upon by the petitioner was not issued by the Tahsildar. The letter dated 22.03.2006 sent by Tahsildar, reply to letter dated 18.03.2006 reads

as under:-

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12. It was also mentioned that the letter dated 14.02.2006 which was relied upon by the petitioner during the course of enquiry was also not issued and it was specifically opined that the said letter is a forged document. Thus, it is clear that not only, the petitioner had procured appointment on the basis of forged document and even during pendency

of enquiry, he also submitted another document dated 14.02.2006 which was also found to be a forged document.

13. It is submitted by the counsel for the petitioner that since the evidence of Tahsildar, Tahsil Gwalior, District Gwalior was not recorded, therefore, it is clear that the department has failed to prove that the petitioner had succeeded in getting appointment on the basis of forged document.

14. Heard the learned counsel for the parties.

15. It is well established principle of law that the departmental enquiries are decided on the principle of preponderance of probabilities against strict proof beyond reasonable doubt in a criminal prosecution. The Rule of Evidence Act does not strictly applies to the departmental proceedings.

16. The Supreme Court in the case of High Court of Judicature at Bombay Vs. Uday Singh and others reported in (1997) 5 SCC 129 has held as under:-

"10. ..............the delinquent has committed misconduct. The test laid down by various judgments of this Court is to see whether there is evidence on record to reach the conclusion that the delinquent has committed misconduct and whether a reasonable man, in the circumstances, would be justified in reaching that conclusion. The question, therefore, is whether on the basis of the evidence on record, the charge of misconduct of demanding an illegal gratification for rendering a judgment favourable to a party has been proved. In that behalf, since the evidence by Kundanben, the aggrieved defendant against whom a decree for eviction was passed by the respondent alone is on record, perhaps it would be difficult to reach the safe conclusion that the charge has been proved. But there is a contemporaneous conduct on

her part, who complained immediately to her advocate, who in turn complained to Assistant Government Pleader and the Assistant Government Pleader in turn complained to the District Government Pleader, who in turn informed the District Judge. The fact that the District Judge made adverse remarks on the basis of the complaint was established and cannot be disputed. It is true that the High Court has directed the District Judge to substantiate the adverse remarks made by the District Judge on the basis of the statements to be recorded from the advocates and the complaint. At that stage, the respondent was not working at that station since he had already been transferred. But one important factor to be taken note of is that he admitted in the cross-examination that Shri Gite, District Government Pleader, Nasik had no hostility against the respondent. Under these circumstances, contemporaneously when Gite had written a letter to the District Judge stating that he got information about the respondent demanding illegal gratification from some parties, there is some foundation for the District Judge to form an opinion that the respondent was actuated with proclivity to commit corruption; conduct of the respondent needs to be condemned. Under these circumstances, he appears to have reached the conclusion that the conduct of the respondent required adverse comments. But when enquiry was done, the statements of the aforesaid persons were recorded; supplied to the respondent; and were duly cross-examined, the question arises whether their evidence is acceptable or not. In view of the admitted position that the respondent himself did admit that Gite had no axe to grind against him and the District Judge having acted upon that statement, it is difficult to accept the contention that the District Judge was biased against the respondent and that he fabricated false evidence against the respondent of the three advocates and the complainant. When that evidence was available before the disciplinary authority, namely, the High Court, it cannot be said that it is not a case of no evidence; nor

could it be said that no reasonable person like the Committee of five Judges and thereafter the Government could reach the conclusion that the charge was proved. So, the conclusion reached by the High Court on reconsideration of the evidence that the charges prima facie were proved against the respondent and opportunity was given to him to explain why disciplinary action of dismissal from service could not be taken, is well justified."

The Supreme court in the case of Noida Entrepreneurs Association Vs. Noida and others reported in (2007) 10 SCC 385 has held as under:-

"11. A bare perusal of the order which has been quoted in its totality goes to show that the same is not based on any rational foundation. The conceptual difference between a departmental enquiry and criminal proceedings has not been kept in view. Even orders passed by the executive have to be tested on the touchstone of reasonableness. [See Tata Cellular v. Union of India [(1994) 6 SCC 651] and Teri Oat Estates (P) Ltd. v. U.T., Chandigarh [(2004) 2 SCC 130] .] The conceptual difference between departmental proceedings and criminal proceedings have been highlighted by this Court in several cases. Reference may be made to Kendriya Vidyalaya Sangathan v. T. Srinivas [(2004) 7 SCC 442 : 2004 SCC (L&S) 1011], Hindustan Petroleum Corpn. Ltd. v. Sarvesh Berry [(2005) 10 SCC 471 : 2005 SCC (Cri) 1605] and Uttaranchal RTC v. Mansaram Nainwal [(2006) 6 SCC 366 : 2006 SCC (L&S) 1341] .

"8. ... The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in

violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act, 1872 [in short 'the Evidence Act']. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. ... Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances."

A three-Judge Bench of this Court in Depot Manager, A.P. SRTC v. Mohd. Yousuf Miya [(1997) 2 SCC 699 : 1997 SCC (L&S) 548] (SCC pp. 704-05, para

8) analysed the legal position in great detail on the above

lines.

12. The aforesaid position was also noted in State of Rajasthan v. B.K. Meena [(1996) 6 SCC 417 : 1996 SCC (L&S) 1455] .

16. The standard of proof required in departmental proceedings is not the same as required to prove a criminal charge and even if there is an acquittal in the criminal proceedings the same does not bar departmental proceedings. That being so, the order of the State Government deciding not to continue the departmental proceedings is clearly untenable and is quashed. The departmental proceedings shall continue."

17. Thus, it is clear that not only, the petitioner had succeeded in getting appointment on the basis of forged caste certificate, but even during the pendency of departmental enquiry, he produced another forged letter dated 14.02.2006 purportedly issued by the Tahsildar, Tahsil Gwalior, District Gwalior. An opportunity was given to the petitioner by the Disciplinary Authority to explain the source of obtaining the letter dated 14.02.2006 which was not discharged by the petitioner. Furthermore, this Court can interfere with the findings recorded in the departmental enquiry only if the same are based on no evidence. Appreciation of evidence is not permissible in exercise of power under Article 226 of the Constitution of India. From the material which is available in the record of the departmental enquiry, it is clear that there was sufficient and overwhelmed evidence against the petitioner and contention of the counsel for the petitioner that the case is based on no evidence, is misconceived and cannot be accepted.

18. The next contention of the counsel for the petitioner is that the punishment of removal from service is disproportionate to the charges levelled against him. In the present case, the allegations are that the

petitioner had obtained appointment on the basis of forged caste certificate. Reservation has been provided to uplift the members of Scheduled Caste / Scheduled Tribe. By obtaining the appointment on the basis of forged caste certificate, not only the petitioner had played fraud on the department, but had also fraudulently taken away the right of another eligible candidate belonging to the reserved category. It is a case of fraud played by the petitioner. Under these circumstances, by no stretch of imagination, it can be said that punishment of removal from service is disproportionate to the charges levelled against him.

19. So far as non-supply of documents as claimed by the petitioner is concerned, as already pointed out that in W.P. No.3483/2006, this Court had directed that in case, if the petitioner files an application on or before 10.04.2006 for supply of documents, then the said application shall be decided in accordance with law. This Court has gone through the record of the Departmental Enquiry and it does not contain any application either in compliance of order dated 22.03.2006 passed in W.P. No.3483/2006 or prior there to. Even the counsel for the petitioner has not placed any such copy on record. Thus, it is clear that the petitioner has raised an imaginative ground for challenging the departmental enquiry. Furthermore, the case is based on the documentary evidence. It is not the case of the petitioner that he was not given the replies submitted by the Tahsildar, Tahsil Gwalior, District Gwalior. Further the petitioner must explain the prejudice which was caused to him. The Supreme Court in the case of State of T.N. v. Thiru K.V. Perumal reported in (1996) 5 SCC 474 has held as under:

"4. ...............Now remains only the third ground, viz., the non-furnishing of the documents asked

for by the respondent. The Tribunal seems to be under the impression that the inquiry officer/disciplinary authority is bound to supply each and every document that may be asked for by the delinquent officer/employee. It is wrong there. Their duty is only to supply relevant documents and not each and every document asked for by the delinquent officer/employee. In this case the respondent had asked for certain documents. The Registrar, to whom the request was made, called upon him to specify the relevance of each and every document asked for by him. It is not brought to our notice that the respondent did so. The Tribunal too has not gone into the question nor has it expressed any opinion whether the documents asked for were indeed relevant and whether their non-supply has prejudiced the respondent's case. The test to be applied in this behalf has been set out by this Court in State Bank of Patiala v. S.K. Sharma [(1996) 3 SCC 364 : 1996 SCC (L&S) 717 : (1996) 3 Scale 202] . It was the duty of the respondent to point out how each and every document was relevant to the charges or to the enquiry being held against him and whether and how their non-supply has prejudiced his case. Equally, it is the duty of the Tribunal to record a finding whether any relevant documents were not supplied and whether such non-supply has prejudiced the defendant's case. Since this has not been done by the Tribunal in this matter, it has to go back for a rehearing.

20. Accordingly, it is held that neither the petitioner filed any application for supply of documents nor any prejudice has been pointed out by the petitioner which might have been caused to him. The petitioner was well aware of the fact that he is being proceeded departmentally on the allegation of obtaining appointment on the basis of forged caste certificate. Not only that, the petitioner had also filed one more forged document dated 14.02.2006 purportedly issued by the

Tahsildar, Tahsil Gwalior, District Gwalior during the departmental enquiry also. An opportunity was also given to disclose source of letter dated 14.02.2006, but that opportunity was not availed. Although the letter dated 14.02.2006 purportedly addressed to Upper DIG, CRPF, Bhopal was produced by petitioner, but the said letter was never received directly from the office of the Tahsildar, Tahsil Gwalior, District Gwalior. Even the Tahsildar by his letter dated 22.03.2006 had specifically stated that the letter dated 14.02.2006 was never issued from his office and it is a forged document.

21. Under these circumstances, this Court is of the considered opinion that no illegality was committed by the department in conducting departmental enquiry.

22. Accordingly, the petition fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE Abhi ABHISHEK CHATURVEDI 2022.07.04 18:01:50 +05'30'