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BRIJESH KUMAR versus UNION OF INDIA THRU' G.M. NORTHERN RLY. & OTHERS

High Court of Judicature at Allahabad

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Brijesh Kumar v. Union Of India Thru' G.M. Northern Rly. & Others - WRIT - A No. 8396 of 2002 [2007] RD-AH 10118 (25 May 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                                Reserved on 12.04.2007

Delivered on ............................

Civil Misc. Writ Petition No. 8396 of 2002.

Brijesh Kumar

Versus

Union of India and others.

...............

Hon'ble Anjani Kumar, J.

Hon'ble Sudhir Agarwal, J.

Aggrieved by the order dated 7th November, 2001 passed by Central Administrative Tribunal, Allahabad (here-in-after referred to as 'Tribunal'), the petitioner has filed this writ petition under Article 226 of the Constitution of India seeking writ of certiorari quashing the said order.  The petitioner has also sought a writ of certiorari quashing the orders 8th June, 1993 and 11th February, 1994, which are the orders impugned in the original application.

The facts in brief as stated in the writ petition are that the petitioner was engaged as substitute porter at block Hut 'A' of Allahabad Division.  He was placed under suspension on 3rd August, 1992.  The charge-sheet was issued on 19th November, 1992 alleging that the petitioner submitted fake date of birth certificate, educational document and affidavit that he has passed intermediate examination in the year 1970 as a regular strudent of Mahatma Gandhi Inter College, Sultanpur.  Also alleged that he submitted a false certificate of his working from 11th September, 1977 to 8th January, 1981 (broken period) in Central Office, Allahabad and therefore committed misconduct violating Rule 3(1)(i), (ii) and (iii) of the Railway Servants (Conduct) Rules, 1966.  The petitioner submitted reply dated 26th November, 1992 denying the charges levelled against him, though admitted that he has submitted High School Certificate in which his date of birth was mentioned but the same was not accepted by the concern clerk and he stopped payment of salary for about three months since the petitioner was minor on the basis of his date of birth mentioned in the High School Certificate.  In these circumstances, he was forced to file a wrong affidavit in order to get salary being a poor and low paid employee.  He claimed that he has filed the said affidavit as dictated by the clerk concern.  A departmental enquiry was held and thereafter inquiry officer submitted his report on 11th May, 1993 holding charges levelled against the petitioner proved.  The copy of the enquiry report was furnished to the petitioner giving an opportunity to submit reply.  The petitioner replied vide letter dated 28th May, 1993.  The disciplinary authority thereafter passed an order 8th June, 1993 holding the petitioner guilty and imposed punishment of removal from service.  Being aggrieved by the said order, the petitioner preferred an appeal under Section 22 of Railway Servants (Discipline and Appeal) Rules, 1968, here-in-after referred to as '1968 Rules', which was rejected by the appellate authority and the decision of the appellate authority was communicated by letter dated 11th February, 1994.  The petitioner thereafter challenged the removal order as well as appellate order before the Tribunal, but his original application has been rejected vide judgement and order impugned in this writ petition.

Learned counsel for the petitioner contended that he was a casual labour and therefore the provisions of 1968 Rules will not applicable in his case. No enquiry under the said Rule could have been conducted and the entire proceeding under 1968 Rules is wholly without jurisdiction.  He further contended  that relevant defence documents, which he demanded were not made available and therefore he was denied adequate opportunity of defence which vitiates the entire proceedings.  It is further contended that only the affidavit was wrongly filed by him regarding the date of birth, but there was no other evidence which prove all other charges levelled against him and the findings are perverse.  Lastly, he contended that common proceeding ought to have been conducted under Rule 13 of 1968 Rules and since the petitioner has been singly proceeded with, therefore the entire proceedings are vitiated. The Tribunal having failed to consider all this aspect of the matter has erred and committed patent error apparent on the face of record.

The respondents have filed counter affidavit stating that the petitioner was guilty of fraud and misrepresentation and therefore departmental enquiry under the Rules was conducted against him, wherein charges were found proved. Consequently he was removed from service and his appeal was also rejected by the appellate authority.  The Tribunal has considered various issues argued by the petitioner and then has passed the order which warrants no interference and on merits this writ petition is liable to be dismissed.

We have heard learned counsel for the parties and perused the records. The first charge levelled against the petitioner is that he submitted fake date of birth certificate, educational document and affidavit.  Moreover, he has passed intermediate examination in the year 1970 as a regular student of Mahatma Gandhi Inter College, Sultanpur, though claims to have worked from 11th September, 1977 to 8th January, 1981, which is exfacie incorrect showing submission of false and fabricated certificate by the petitioner.  It is evident from the record that in respect of submission of affidavit mentioning different date of birth than what was mentioned in High School certificate, the petitioner had admitted the facts as is evident from paragraph 1 of his reply dated 26th November, 1992 (Annexure-'2' to the writ petition), which reads thus :-

"High school certificate declaring date of birth was correctly given by me, but the same was not accepted by the clerk concerned and stopped my payment, as I was 6 months under age.  I was forced to file this wrong affidavit before actual payment for the work done was released by the Clerk concerned.  I was poor man as well as a lo-paid employee and in the interest of payment I had to obey the clerk concerned and filed the Affidavit which was wrong."

It is also evident from the same reply wherein he admitted that he attended classes and appeared as a regular student in intermediate examination of 1970, which shows that he could not have worked during the period he was studying in the said college and the working certificate for the said period was incorrect.  The certificate submitted by the petitioner mentioned his period of working from 11th September, 1977 to 30th September, 1981 (187 days) when he was student in Mahatma Gandhi Inter College, Sultanpur in the year 1977-78 and 1978-79. Even the departmental witness who alleged to have issued the said certificate stated during the course of the oral inquiry that the said certificate appears to have been issued without verifying casual labour register.  In the facts and circumstances, it cannot be said that the authorities erred in imposing the punishment of removal from service since the petitioner was guilty of submitting wrong and incorrect documents.

Now coming to the second argument of learned counsel for the petitioner that 1968 Rules had no application.  We find that the petitioner after his appointment had already worked for more than 120 days and as per Rules, acquired temporary status.  This fact is not disputed by learned counsel for the petitioner also.  A person who has acquired temporary status as a Railway servant, hence 1968 Rules are applicable. We therefore do not find any illegality in the procedure followed by the respondents by conducting enquiry in accordance with 1968 Rules.  Even otherwise if the said Rules would not have applied, yet the petitioner being guilty of misconduct, could have been punished by observing the principles of natural justice. The respondents in the present case have given full opportunity of hearing to the petitioner. The learned counsel for the petitioner could not place any fact or material to show that he was denied adequate opportunity of defence.  Therefore we are of the view that the procedure adopted by the respondents by following 1968 Rules is absolutely correct and does not vitiate the order of removal impugned in the present writ petition.

Now coming to the third submission that the documents were not made available to him.  From the perusal of the enquiry report, we find that all the relevant and relied upon documents were supplied to the petitioner.  However, some of the additional documents which the petitioner demanded were not available with the disciplinary authority.  It is not the case of the petitioner that those documents were available yet not supplied to him.  All this has been discussed by the enquiry officer, which shows that whatever material was available with the respondents, was supplied to the petitioner.  The petitioner demanded the copy of the witnesses in preliminary inquiry but since it was not recorded hence could not have been supplied.  Similarly he wanted copy of the verification before relieving CHC Allahabad, but since no such verification letter was issued hence was not available.  In the entire writ petition, the petitioner has not even pleaded that the documents, if any, not supplied to him then what prejudice it has caused to him.  Mere non supply of documents by the employer would not vitiate departmental enquiry, unless it is shown by the delinquent employee that it has caused prejudice to him resulting in denial of adequate opportunity of defence.  Moreover, this issue has also been considered in detail by the Tribunal and it has also noticed that the plea of non-availability of documents was not taken up by the petitioner before the appellate authority as is clear from the memo of appeal dated 8th July, 1993. Thus it is an after thought and would not vitiate the proceedings.  

We therefore do not find any error in the finding of the Tribunal and do not intend to take a different view.

The next submission that only affidavit was wrongly filed and finding in respect to other part of the charge-sheet are perverse also has to be rejected, since learned counsel for the petitioner could not show from the record that the finding recorded by the enquiry officer on various charges is perverse or based on no material.  On the contrary, we find that the charges levelled against the petitioner and finding recorded thereon is based on the documents relied upon in support of the charge-sheet, which were also admitted by him.  Further this ground was not taken before the Tribunal and has been raised for the first time before this Court without substantiating from the material on record, hence rejected.

The last submission that there ought to have been common proceedings is liable to be rejected outright without any further discussion for the reasons that learned counsel for the petitioner could not show as to how the authorities were bound to conduct a common proceeding and in what manner that would vitiate the punishment order passed against him pursuant to a departmental enquiry conducted against him.

In the result, we do not find any error apparent on the face of record warranting any interference in the order of the Tribunal.  The writ petition therefore lacks merit and is accordingly dismissed.  However, on the facts and circumstances of the case, there shall be no order as to costs.

Dated: 25.05.2007.

Rks.


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