Raghunath Naik vs State Of Odisha And Others
2023 Latest Caselaw 11813 Ori

AFR               ORISSA HIGH COURT : C U T T A C K
                             W.P.(C) No. 36822 OF 2022
                        An application under Articles 226 & 227 of
                             the Constitution of India.


      Raghunath Naik                             : Petitioner

                                     -Versus-

      State of Odisha and others                 : Opposite Parties


            For Petitioner                 : Mr. P.K.Ray, Advocate
                                             Mr. K.C. Dash, Advocate
                                             Mr. M.K.Sahoo, Advocate

            For Opposite Parties           : Mr. N.K.Praharaj, Additional
                                                 Government Advocate



                                     JUDGMENT

CORAM :

JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 15.09.2023 :: Date of Judgment : 29.09.2023

1. By way of this Writ Petition, the Petitioner has essentially

challenged the order passed by the Opposite Party No.3 removing

him from the service with effect from 28.01.2011.

2. The Petitioner was provisionally appointed as a Sepoy on

22.12.2006 after undergoing the rigors of the recruitment process.

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In the appointment letter dated 22.12.2006, there is a recitation that

the appointment is purely provisional and temporary. In case of

any discrepancy/falsity/adverse report, they will be summerly

discharged from service without calling for any explanation and

whenever necessary appropriate criminal proceedings will also be

initiated against them.

3. It appears, at the time of appointment, the Petitioner relied

upon a Caste Certificate to avail the reservation benefit under

Schedule Caste category. He produced a Caste Certificate No.3661

of 2003 purported to have been issued by the Tahasildar,

Dhenkanal. On the strength of the Caste Certificate he has

represented that he belongs to <PANA= Caste as such a Schedule

Caste. The certificate is annexed to the Writ Petition as

Annexure-3.

4. While he was continuing in the service, the certificate

appears to have been verified. A verification report was received

from the Additional Tahasildar, Dhenkanal on 06.05.2010. On the

basis of the said verification report, the Petitioner was suspended

from 22.05.2010 and was subjected to a departmental proceeding.

In the departmental proceeding the Tahasildar, Dhenkanal was

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examined, who deposed against the Petitioner inter alia stating that

the Caste Certificate produced by the Petitioner bearing No.3661 of

2003 purported to have been issued by the Additional Tahasildar,

Dhenkanal is a forged one and the same is not matching with the

entry made in the Register maintained at the Dhenkanal Tahasil.

5. On the basis of the said departmental proceeding the

Petitioner was removed from the service vide B.O. No.164 dated

28.01.2011 issued by the Opposite Party No.3.

6. The Petitioner filed Original Application being O.A.

No.362(C) of 2011 before the Orissa Administrative Tribunal

challenging the order dated 28.01.2011 by way of which

punishment of removal from service was imposed on him. After

abolition of Orissa Administrative Tribunal, the said substantive

petition was transferred to this Court and registered as WPC(OAC)

No.362 of 2011. The learned Single Judge of this Court vide its

order dated 24.08.2021 dispose of the said Writ Petition permitting

the Petitioner to pursue his remedy before the Appellate Authority.

Pursuance thereof the Petitioner filed an Appeal against the order

dated 28.01.2011 passed by the Commandant, OSAP, 4th Bn.

Rourkela-Opposite Party No.3 before the Appellate Authority-

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cum-Additional D.G. of Police, OSAP, Odisha Bhubaneswar i.e.

Opposite Party No.2. The memo of the Appeal filed by the

Petitioner before the Appellate Authority is annexed with the Writ

Petition as Annexure-7, which indicates that he had pleaded his

case in detail supported with documents.

7. The Additional D.G. of Police vide its order dated

13.07.2022 rejected the Appeal inter alia stating as under:-

<After going through the material of the facts, the grounds of appeal and parawise comments of the D.A., it is seen that the appeal cannot be considered as per the recruitment rules.=

8. By way of the present Writ Petition, the Petitioner is

assailing the order dated 13.07.2022 passed by the Additional D.G.

of Police i.e. Opposite Party No.2 in the Appeal preferred by the

Petitioner against the order of removal from service.

9. It is worthwhile to mention here that, on the basis of

allegation that forged certificate was being produced by the

Petitioner at the time of his appointment as a genuine document, a

F.I.R. was also lodged apart from Departmental Proceeding. The

Petitioner was put to trial under G.R. Case No.857 of 2010.

10. The F.I.R. was lodged on 24.05.2010. Charge-sheet was

filed on 31.12.2010 by the Police on the accusation of forging and

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using the forged documents as genuine documents for procuring

appointment to the post of Sepoy. The learned trial Court on

07.12.2011 framed charges against the Petitioner under Section

468/420 of I.P.C. and subjected the Petitioner to trial. Eventually

the trial Court vide its detailed judgment dated 13.10.2022

recorded an acquittal in favour of the Petitioner and stated that the

prosecution has miserably failed to establish the case against the

Petitioner. It would be relevant to produce the penultimate

paragraphs of the judgment dated 13.10.2022 passed by the

J.M.F.C., Rourkela:-

<In order to make a person liable for the offence punishable U/s.-420 of IPC. Prosecution has to prove cheating, dishonest inducement to deliver property and mens-rea of the accused at the time of making inducement. In this case the prosecution did not prove how the accused induced or cheated the informant or any other victim. In order to make a person liable for the offence punishable U/s.-468 of IPC. Prosecution has to prove that there is a forgery in respect of the document, the intention of forgery should be that the forged document is to be used for purpose of cheating and the forgery is with particular intent. In this case no witness deposed in the court that the accused has forged any document, for the purpose of cheating.

The offences commission of which have been alleged against the accused are traditional offences punishable under the Indian Penal Code which needs to be proved beyond all reasonable

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doubt by the prosecution by adducing cogent and legally acceptable evidence. As per the principles of Criminal law it is the duty of the prosecution to prove it's case against the accused beyond any reasonable doubt. The statements of the witnesses must be uncontradictory and corroborative in nature to become reliable chain of evidence must be complete. The prosecution has failed to prove the allegation made against the accused that on 22.12.2006 at O.S.A.P., 4th Battalion Rourkela by submitting forged caste certificate before the Authority of O.S.A.P. and thereby dishonestly induced the O.S.A.P. Authority to appoint him as recruit Sepoy and thereby committed an offence and the accused committed forgery of caste certificate intending that the said document shall be used for the propose of cheating. The prosecution has miserably failed to prove the commission of offence by the accused punishable U/s. 420/468 of I.P.C.=

Since no Appeal preferred by the State against the acquittal

order passed in favour of the Petitioner before any superior court of

law, the acquittal order attains finality.

11. The Opposite Parties filed a detailed counter affidavit

controverting the contention raised by the Petitioner in the Writ

Petition. However broadly the aforementioned factual matrix are

not disputed.

12. Heard Mr. P.K.Ray, learned counsel for the Petitioner and

Mr. N.K. Praharaj, learned Additional Government Advocate.

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13. Mr. Ray, learned counsel for the Petitioner contended that in

the Departmental proceeding the sole oral testimony of Smt.

Gitanjali Naik, the Tahasildar, Dhenkanal recorded in 2010 was

made the basis for proving the Caste Certificate No.3661 of 2003

to be a forged document. Baring her deposition no other material

supports the case of the Opposite Parties to establish that the Caste

Certificate produced by the Petitioner being forged. He submits

that the Appellate Authority in its order dated 13.07.2022 even

goes on to the record that the Caste Certificate subsequently

produced by the Petitioner in the year 2010 is found to be genuine,

however since the Petitioner had applied for the Post of Sepoy in

2006 on the basis of a Caste Certificate of 2003 and the said Caste

Certificate is not a genuine document. From the factual scenario it

emerges that the Petitioner belongs to Schedule Caste category

being a <PANA=.

14. Mr. Praharaj, learned Additional Government Advocate

fairly admits the fact that the Petitioner belongs to <PANA= Caste

is not doubted, however, the certificate he produced at the time of

applying for appointment to the post of Sepoy was a forged

document. The Petitioner was subjected to a departmental

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proceeding and it is established that he had used a forged document

to be a genuine one for the purpose of availing reservation in the

appointment. Therefore, he submits that although the Petitioner is a

Schedule Caste, the fact that he had used a forged certificate cannot

be doubted in view of the deposition made by the Tahasildar,

Dhenkanal in the departmental proceeding.

15. Mr.Praharaj, learned Additional Government Advocate

further submits that acquittal in the criminal prosecution recorded

by the J.M.F.C., Rourkela is of no consequence in so far as the

departmental action against the Petitioner is concerned. Because

the standard of proof required to be adopted in both the

proceedings are different.

16. The fact that the Petitioner belongs to <PANA= Caste is not

disputed and also it is not disputed that his father namely

Rabinarayan Naik was also working as a Sepoy under the reserved

category of Schedule Caste being a <PANA=. To establish the

same, the Petitioner has placed on record the pension document of

his father. Therefore, there was no occasion for the Petitioner to

forge a document to avail the reservation benefit as admittedly he

is a Schedule Caste.

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17. The genuinity of the document was also subjected to judicial

scrutiny under the parameter of strict proof beyond the reasonable

doubt and in the said scrutiny it was found that the subject

document could not be proved to be a forged document. Therefore,

the Petitioner was honourably acquitted.

18. Mr. Praharaj, learned Additional Government Advocate

vehemently contended that the department is not doubting

regarding the Caste but he was removed from the service only on

the ground of proved allegation of using a fraudulent document as

genuine for availing the reservation. No doubt the departmental

proceeding has a different standard of proof and goes by the

principle of preponderance probability of doctrine but in the

present case all the facts and documents are tilted in favour of the

Petitioner baring the sole statement of Smt. Gitanjali Naik, the

Tahasildar, Dhenkanal, which she made in the departmental

proceeding.

19. It is relevant to mention that the subject document was

produced by the Petitioner in the year 2006 at the time of applying

for recruitment to the post of Sepoy whereas the departmental

proceeding, the statement of the Tahasildar, Dhenkanal was

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recorded on 10.02.2010. In her statement she has admitted that

Dhenkanal Tahasil has been bifurcated in the year 2007 to Odapada

Tahasil and Dhenkanal Tahasil. Therefore, she had no advantage of

seeing any relevant documents of Odapada, Tahasil being the

Tahasildar of Dhenkanal. She also stated that Petitioner's subject

Caste Certificate appears to have been generated from Odapada,

Tahasil but it is not matching with the Register available at

Dhenkanal Tahasil. Therefore, keeping in mind that the bifurcation

took place in 2007, the Register maintaining in Dhenkanal Tahasil

would not reflect the entry pertaining to the subject certificate. The

Tahasildar, Dhenkanal also deposes that all records pertaining to

Odapada Tahasil has already been transferred in the year 2009.

Therefore, in all possibility neither she had the advantage seeing

the record to support her statement nor she was the right witness to

be relied upon in the departmental proceeding being from a

separated Tahasil. In that view of the matter the statement of Smt.

Gitarani Naik, the Tahasildar, Dhenkanal made in the departmental

proceeding inspires no confidence to be relied upon particularly

when series of facts mentioned above are starring on the face of the

records in favour of the Petitioner.

// 11 //

20. Mr. Praharaj, learned Additional Government Advocate also

relied upon a judgment reported in (2018) 14 SCC 279 in the case

of Ex Sig. Man Kanhaiya Kumar versus Union of India and

others to support his case. However, factually the said case is

distinguishable as in that case the certificate was established to be a

fake certificate, whereas the mitigating facts of the present case

gives different narrative.

21. Per contra, Mr. Ray, learned counsel for the Petitioner relied

upon the judgments of the Hon'ble apex Court in Civil Appeal

No.487 of 2018 in the case of Sunita Singh vs. State of Uttar

Pradesh & others and stated that there cannot be any dispute that

caste be determined by birth and if born as a Schedule Caste, it

always remain and continuing a Schedule Caste. The fact of the

present case being same, it cannot be doubted that the Petitioner

belongs to Schedule Caste being a <PANA=. Therefore, he is

entitlement to the reservation for the post of Sepoy cannot be find

fault with. Evaluating the facts scenario in toto, I am of the view

that forging a document to prove something which really he is may

not be comprehensible. Moreover, undisputedly the Petitioner is a

Schedule Caste and the element of forgery also could not be proved

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by the Opposite Parties conclusively either in the criminal trial or

in the departmental proceeding. Therefore, the Petitioner succeeds

in this lis.

22. For the foregoing reasons, the Writ Petition deserves merit

and the removal order dated 28.01.2011 passed by the Opposite

Party No.3 is set aside and consequentially the impugned order

dated 13.07.2022 passed by the Appellate Authority namely

Opposite Party No.2 also stands quashed. The Opposite Parties are

directed to reinstate the Petitioner forthwith with all consequential

benefits applicable under law.

23. The Writ Petition is allowed accordingly.

(S.S. Mishra) Judge

Orissa High Court, Cuttack.

The 29th September, 2023 /Swarna Prava Dash, Junior Stenographer

Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 29-Sep-2023 18:12:18