Rajasthan High Court - Jodhpur

Gyan Chand vs Bharat Petroleum Corpn. Ltd. And ... on 5 December, 2022

Bench: Rekha Borana

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 180/2004

Gyan Chand son of Shri Bhagirathji, by caste Khatik, aged 42 years, resident of Kalal Colony, Gali No.10, Inside Nagauri Gate, Jodhpur

----Petitioner Versus

1. The Bharat Petroleum Corporation Ltd., Regional Office, Noida, through DGM (HRS), North, A-5 & 6, Sector 1, Noida (U.P.).

2. The Deputy General Manager (HR Services), North, A-5 & 6, Sector 1, Noida (U.P.).

                                                  ----Respondents


For Petitioner(s)        :     Mr. H.S. Choudhary assisted by
                               Mr. Umashankar Dhakad
For Respondent(s)        :     Mr. Nishant Bora


            HON'BLE MS. JUSTICE REKHA BORANA
                                    Order

05/12/2022

The present writ petition has been filed against the order

dated 27.11.2003 whereby the petitioner has been discharged

from service on the basis of the inquiry conducted against him

wherein he has been found guilty of misconduct.

The facts of the case are that the petitioner who had been

appointed as a Watchman (Grade-II) with the respondent-

Department vide order dated 12.01.1987 was charge-sheeted in

the year 2002 with an allegation that he had submitted a forged

document pertaining to his educational qualification at the time of

his appointment. In pursuance to the charge-sheet dated

15.02.2002, an inquiry was conducted and vide inquiry report

dated 20.05.2003, the petitioner was held to be guilty of

misconduct. Consequently, vide order dated 27.11.2003, he was

dismissed from service.

(2 of 7) [CW-180/2004]

The allegation against the petitioner is that he had submitted

a forged transfer certificate wherein he was mentioned to be 7 th

class pass whereas the certificate as produced was found not even

been issued by the school mentioned therein. During the inquiry

proceedings, the then Principal of the school issuing the certificate

also appeared and specifically deposed that the said transfer

certificate was not issued by his school and further that there was

no person as mentioned in the transfer certificate to be registered

as a student of the said school. During the inquiry proceedings,

the petitioner was granted opportunity to lead evidence but he did

not avail of the said opportunity and did not even cross-examine

the witnesses produced by the respondent-Corporation. The

Inquiry Officer reached to a conclusion that the document was a

forged one and the petitioner had availed the appointment with

the respondent-Corporation on the basis of a forged document

which is a 'misconduct' in terms of Clause 28.1.19 of the Standing

Orders governing the respondent-Corporation.

Learned counsel for the petitioner submitted that the order

impugned is bad in the eyes of law inasmuch as before passing

the same, the author of the transfer certificate was not called in

the witness box and therefore, the finding pertaining to the said

document was totally dehors the law. For the purpose, learned

counsel relied upon the judgment passed in the case of Sattar

Khan vs. State of Rajasthan [(1997) 1 WLC 162]. Learned

counsel further submitted that the petitioner had given in almost

17 years of service by that time and in terms of the Standing

Orders governing the employees of the respondent-Corporation,

the fact that there was no other allegation of misconduct or

irregularity against the petitioner during his complete tenure of

(3 of 7) [CW-180/2004]

service ought to have been considered. To substantiate the said

averment, learned counsel relied upon the judgment passed by

the Hon'ble Apex Court in the case of Ranjit Thakur Vs. Union

of India [AIR (1987) SCC 2386] and a judgment passed by the

Telangana High Court in the case of Vuduri Venkatesh vs. Chief

Manager, Central Bank of India; Writ Petition Nos.32889,

32890, 32895, 32904, 32964 & 33161 of 2017. Learned

counsel lastly submitted that the punishment as imposed is harsh

one and keeping into consideration the nature of misconduct, even

if admitted, the punishment ought to have been proportionate to

the allegations. He submitted that the punishment of dismissal is

on the highest side which deserves to be reconsidered in terms of

the above mentioned judgments.

Per contra, learned counsel for the respondents submitted

that it is clear on record that the petitioner did use a forged

document for the purposes of appointment. Learned counsel

submitted that the Inquiry Officer conducted a full proof inquiry

while giving complete opportunity of hearing as well as to lead

evidence to the petitioner. The findings of the Inquiry Officer are

based on cogent material and evidence available on record and

the same cannot be disputed. Learned counsel also submitted

that the petitioner had a remedy of appeal provided under the

Standing Rules which he did not avail of and therefore, the

present petition is not maintainable even on the ground of

alternate remedy. In support of his contentions, learned counsel

for the respondents has relied upon the judgment passed by the

Hon'ble Apex Court in the case of Indian Oil Corporation Ltd.

vs. Rajendra D. Harmalkar; Civil Appeal No.2911 of 2022

decided on 21.04.2022.

(4 of 7) [CW-180/2004]

In the case of Rajendra D. Harmalkar, the Hon'ble Apex

Court held as under:

"7.1. In the present case, the original writ Petitioner was dismissed from service by the Disciplinary Authority for producing the fabricated/fake/forged SSLC. Producing the false/fake certificate is a grave misconduct. The question is one of a TRUST. How can an employee who has produced a fake and forged marksheet/certificate, that too, at the initial stage of appointment be trusted by the employer? Whether such a certificate was material or not and/or had any bearing on the employment or not is immaterial. The question is not of having an intention or mens rea. The question is producing the fake/forged certificate. Therefore, in our view, the Disciplinary Authority was justified in imposing the punishment of dismissal from service."

Heard learned counsel for parties and perused the material

available on record.

A perusal of the inquiry report dated 20.05.2003 makes it

clear that the Inquiry Officer has reached to a specific conclusion

that the transfer certificate was a forged one. The Headmaster of

the school at that point of time was even produced before the

Inquiry Officer and he specifically deposed that the transfer

certificate is false. He even deposed that there was no admission

registered in the name of Shri Gyan Chand S/o Shri Bhagirath in

the school records on 01.07.1968, the date mentioned in the

transfer certificate. Moreover, it is also clear on record that the

petitioner was granted ample opportunities to lead evidence in

defence but he did not do so. Admittedly, he was even granted

the opportunity to cross-examine the witnesses which also he did

not avail of.

In the opinion of this Court, the complete dispute in the

present matter was pertaining to the transfer certificate of the

petitioner, meaning thereby, whether the petitioner was qualified

as mentioned in the transfer certificate. Had the petitioner been

(5 of 7) [CW-180/2004]

qualified as mentioned in the transfer certificate, he could have

produced some other relevant document to the purpose, for

example, any marklist or any other certificate at the relevant time

to prove the said fact. However, he did not do so and neither did

he produce any witness to substantiate his averment. Therefore,

the findings as reached by the Inquiry Officer cannot be interfered

with as the same are based on evidence beyond reasonable doubt.

However, Clause 29.6 of the Standing Orders provides that while

awarding punishment, the Competent Authority shall also take

into account the previous record of the employee.

Clause 29.6 of the Standing Orders reads as under:

"In awarding punishment under this standing order the Competent Authority shall take into account gravity of the misconduct, the previous record, if any, of the workman and any other extenuating or aggravating circumstances that may exist."

In Ranjit Thakur's case (supra), while considering the

aspect of punishment in proportion to the allegation/misconduct,

the Hon'ble Apex Court observed as under:

"Re : contention (d) : Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process." The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review."

Relying upon the said judgment of the Hon'ble Apex Court,

the Telangana High Court in the case of Vuduri Venkatesh

(6 of 7) [CW-180/2004]

(supra), while dealing with an akin matter wherein the case of a

fraudulent document for the purposes of appointment was under

consideration and the order of dismissal was imposed as a

punishment, the Court observed as under:

"....therefore, the action of the respondents in dismissing the petitioners from service on the allegation that the petitioners have submitted false certificates is shockingly disproportionate. No doubt, the petitioners committed misconduct, but all misconducts may not end up with major punishment of dismissal and even any lesser punishment would meet the ends of justice. Therefore, counsel for the petitioners submitted that appropriate orders be passed in these writ petitions by setting aside the impugned orders holding that the punishment of dismissal is shockingly disproportionate to the charges leveled against the petitioners and remand the matters to the appellate authority so as to impose any other lesser punishment than the punishment of dismissal by duly taking into account the above referred judgments of the Hon'ble Supreme Court."

In the present matter the petitioner was a fourth class

employee i.e. a watchman who comes from the lower strata and

lower class of the society. Although, as held by the Inquiry Officer

the petitioner did submit a fake document at the time of

appointment but keeping into consideration the fact that he has

given in 17 years of service by the year 2002 when the charge-

sheet was issued against him and keeping into consideration the

fact that while imposing the punishment, the Competent Authority

did not keep into consideration his previous record, a lesser

punishment, for example compulsory retirement, can be imposed

on the petitioner but as the Standing Orders governing the

respondent-Corporation does not speak of any such punishment,