JUDGMENT
Shankar Prasad, Member (A)
1. Aggrieved by the order dated 25.3.2004 terminating his service under Rule 8 of CDS (Conduct and Employment) Rules, 2001 the applicant has preferred the present O.A. He has sought for the quashing of the order together with all consequential benefits.
2. The case of the applicant in brief is that he was provisionally appointed on 16.5.2001 pending per appointment facilities. His services were satisfactory. The existing instructions provide that power under this section can be invoked only for unsatisfactory service and not for specific misconduct. In the latter case regular departmental proceedings have to be taken up. No such notice was given. There are a number of decisions of Tribunal including the Full Bench decision in the case of Tilakdhari Yadav v. Union of India, 1997 ATC (36) 539.
3. The case of the respondents in brief is that two applications were received from employment exchange Probander in response to requisition sent by them for filling up the vacant post. The applicant was selected as had stated in Col. 3 of his application that he is a member of Scheduled Tribe. He had also stated in Col. 9 of Attestation form that he belongs to Rabari ST Community. He was requested on 26.6.2003 and 6.1.2004 to produce the caste certificate issued by Mamlatdar. He has failed to produce the same. The certificate produced by the applicant was also forwarded to the issuing authority vide letter dated 13.12.2003 for verification. The said officer has reported that no such certificate has been issued. DG P and T letter of 22.2.1995 provides that action can be taken under this rule to terminate the services of those ED Agents who have submitted false certificate/documents. Action has been taken accordingly.
4. The applicant in his rejoinder has stated that his services were regularised after verification of character and antecedents. The applicant has annexed the caste certificate dated 29.1.88. This reads:
“This is to certify that Shri Garchar Laxman Virabhai is a native of Bedawala Nes Taluka Porbander Dist: Junagadh (Gujarat State). He is Rabari by caste which is recognised as Scheduled Tribe by Gujarat State and he is of Hindu religion (For Schedule Tribe).”
Sd/-
District Social Welfare Officer
District Panchayat, Junagadh.”
There are 18 such employees working in Junagadh postal district. The applicant should have been given an opportunity to rebut the complaint. His services could not have been terminated without giving him an opportunity of being heard. The Apex Court decision in Union of India v. Jaya Kumar Panda, 1995(8) SLR 225, and other decisions refer.
5. Sl. No. 24 of Part IV-Gujarat of Second Schedule to The Scheduled Castes and Scheduled Tribes orders (Amendment) Act, 1976 is as follows:
“24. Rabari (in the Nesses of the forests of Alech. Barada and Gir.)
6. We have heard the learned Counsels.
7. The Department of Personnel, on being consulted had advised Department of Posts to follow DOPT O.M. 11012/7/91-Estt. (A) issued in pursuance of Apex Court decision in M. Tripurari Sundari’s case in matter of appointment obtained on false certificates. Instructions were issued vide letter dated 22.2.95. The relevant part of DO Posts letter reads as follows:
“3. The implications of the above judgment have been examined further in consultation with the Department of Personnel and Training. That Department has drawn the attention of this Department to the judgment of the Hon’ble Supreme Court in the matter of District ‘Collector. Vizianagaram v. M. Tripura Sundari Devi, 1990(4) SLR 237, the gist of which has already been circulated to all concerned vide their O.M. No. 11012/7/91 – Estt. (A), dated 19.5.1993 and has observed that keeping the contexts of the same in view there seems to be no objection to resorting to Rule 6 of the P and T ED Agents (Conduct and Service) Rules, 1964, to which is analogous to Rule 5 of CCS (TS) Rules, 1965, to terminate the services of those ED Agents who have given false certificates/documents. That Department has also observed that no amendment to Rule 6 is called for. I am sending herewith a copy of the O.M. dated 19.5.1993, of the Department of Personnel and Training for information guidance, (not printed).
4. If not already being done, suitable warning may be inserted at the time of calling for nominations applications for filling in vacancies in ED categories about action taken against ED Agent furnishing false information at the time of his appointment.”
8. The Apex Court in the judgment referred to in this letter of 22.2.95 had held as follows:
“It is common knowledge that sometimes either by mistake or otherwise the notes put up before the Selection Committee contain erroneous data prepared by the office, and sometimes the Selection Committee proceeds on the basis that all those who appears before it, and otherwise qualified. However the second stage at which the documents are scrutinised is when the higher authorities go through them at the time of the candidate concerned approaches them for resuming duties along with the original certificates. It is at that stage that the mistake was discovered in the present case and the respondent was not permitted to resume her duties. We see nothing wrong in this action.
It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard the same, it is not a matter only between the Appointing Authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint person with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No Court should be a party to the perpetuation of the fraudulent practice. We are afraid that the Tribunal lost sight of this fact.”
9. The Apex Court in Union of India v. M. Bhaskaran, 1995(5) SLR 796=1996(2) SLJ 25 (SC) was considering the case of a workmen, who had obtained employment by producing fake casual labour cards. The Apex Court referred to the above decision and held:
“As laid down in the aforesaid decision if by committing fraud any employment is obtained such a fraudulent practice cannot be permitted to be countenanced by a Court of law. Consequently, it must be held that the Tribunal had committed a patent error of law in directing reinstatement of the respondent workmen with all consequential benefits. The removal orders could not have been faulted by the Tribunal as they were the result of a sharp and fraudulent practice on the part of the respondents. Learned Counsel for respondents, however, submitted that these illiterate respondents were employed as casual labourers years back in 1983 and subsequently they have been given temporary status and, therefore, after passage of such a long time they should not be thrown out of employment. It is difficult to agree with this contention. By mere passage of time a fraudulent practice would not get any sanctity. The appellant authorities having come to know about the fraud of the respondents in obtaining employment as casual labourers, stated departmental proceedings years back in 1987 and these proceedings have dragged on for number of years. Earlier removal orders of the respondents were set aside by the Central Administrative Tribunals, Madras Bench and proceedings were remanded and after remand fresh removal orders were passed by the appellant which have been set aside by the Central Administrative Tribunal, Ernakulam Bench and which are the subject matter of the present proceedings. Therefore, it cannot be said that the appellants are estopped from recalling such fraudulently obtained employment orders of the respondents subject of course to following due procedure of law and in due compliance with the principles of natural justice, on which aspect there is no dispute between the parties. If any lenient view is taken on the facts of the present case in favour of the respondents then it would amount to putting premium on dishonesty and sharp practice which on the facts of the present cases cannot be permitted.”
10. The appellant Shri R.V. Pillai in R.V. Pillai v. State of Kerala, 2004 SCSLJ 298, belonged to forward caste. He however obtained a certificate from the Tehsildar stating that he was a member of the Vettuvan Community. On the basis of this caste certificate he obtained a job as Assistant in the Legislative Secretariat and was subsequently directly recruited to the post of Dy. S.P. again also against the post reserved for Scheduled Castes. He was subsequently promoted and included in the cadre of IPS. On receipt of a complaint that he has obtained a false caste certificate a full fledged anthropological enquiry was held into the caste status of the applicant. It was found by KIRTADS (Kerala Institute for Research. Training and Development Studies of Scheduled Caste and Scheduled Tribes) that the applicant did not belong to Scheduled Caste Community. The Government of Kerala constituted a Scrutiny Committee in terms of Apex Court decision in Kumari Madhuri Patil v. Additional Commissioner, 1994(6) SCC 241. The appellant appeared before the said Committee after having initially challenged the authority of the said Committee. The Scrutiny Committee by a detailed order rejected the claim of the applicant that he belong to Scheduled Caste. The writ petition against the aforesaid order was dismissed. The SLP against the order of High Court was also dismissed and the review petition of the said order was dismissed.
The applicant thereafter filed O.A. 340/1997 before the Central Administrative Tribunal, Ernakulam Bench seeking direction that his services cannot be terminated only on the recommendations of the Scrutiny Committee and without following the prescribed procedure under Article 311 of the Constitution. The Tribunal allowed the claim. The High Court allowed the appeal of State of Kerala and reverse the order of C.A.T. Thereafter this appeal was filed in the Apex Court. The Apex Court took note of the decision of Patna High Court in Ishwar Dayal Sah v. State of Bihar, 1987 Lab. I.C. 390 and the Full Bench of the Patna High Court in Rita Mishra v. Director, Primary Education, AIR 1988 Patna 26. It was held in the said decisions that persons appointed on the basis of fraud, forgery or crime or illegal letter of appointment are not entitled to constitutional rights under Article 311 nor was entitled to salary for the work done. The Apex Court approved these decisions. It also dismissed the appeal.
11. The Apex Court in R.C. Tripathi v. U.P. Public Services Tribunal IV and Ors., 1994(2) SLR 27, was considering the matter relating to cancellation of the confirmation order. The said confirmation order had been passed in disregard of the stay order passed by the High Court in another case. The said cancellation order had been passed without issuing any show-cause notice. The Apex Court held:
“Although he was made permanent as indicated hereinbefore, such order was passed in complete violation of the interim order of injunction passed by the High Court in the writ proceedings which debarred the respondents from confirming any Junior Engineer. Since the order of confirmation of the appellant was made in violation of the injunction order, the mistake committed in passing the order of confirmation was corrected. In our view, in such circumstances the appellant was not required to be given any opportunity of being heard for correcting such mistakes because there was no occasion to take one view or the other in the matter of correction of the said mistake on the basis of the representation to be made by the appellant. The order of confirmation was per se illegal and in violation of the order of injunction passed by the High Court and the same being invalid was got to be corrected in any event.”
12. The Apex Court in Union of India v. Jayakumar Parida (supra) was considering the case relating to termination of an EDDA employee under Rule 6 of the EDA (Conduct and Salaries) Rules, 1964. The Apex Court held:
“5. The question is whether the termination of the respondent is in accordance with this rule. There appears to be a complaint laid against the respondent that he had produced a false income certificate before seeking appointment.
That was taken into account while making the appointment of respondent as Extra-Department Branch Postmaster. It is settled law that if any material adverse to the respondent formed a foundation for termination, principles of natural justice may necessarily require that prior opportunity of notice be given and after considering his reply appropriate order may be passed giving reasons in support thereof. If it is only a motive for taking action, in terms of Rule 6, since that rule provides that such a termination could be made within three years without any notice, there would be no obligation on the part of the appellant to issue any notice and to give opportunities before termination. So each case requires to be examined on its own facts.
6. It was admitted on behalf of the appellants in the counter-affidavit filed before the Tribunal that the action was initiated on the basis of a report submitted against the respondent that he had produced false income certificate. In other words, it formed a foundation and not a motive for taking the impugned action. Accordingly, we decline to interfere with the order of the Tribunal setting aside the termination. However, the respondent is not entitled to any backwages.”
13. The Division Bench of the Andhra Pradesh High Court in Superintendent of Post Offices Khamman Division v. K. Vasayya, 1983(3) SLR 629=1984(1) SLJ 281 (AP) was considering the matter relating to non-appointment of a person on selection pannel on the ground that the police verification revealed his association with extremist organisation. One of the questions before the Division Bench was as to whether the applicant was entitled to a notice on the adverse comments in the report. Both the Judges wrote separate judgments Justice K. Ramaswamy as he then was held as follows:
“133. Therefore, when the material adverse to the applicant is made of then it is minimal that the true extract if possible or at least the correct and true substance of the allegations should be made known to the person whose interests or legitimate expectation of interest are in jeopardy so that he could know what are the factors that are sought to be made use of and whether there is any truth in it or not.”
14. The Constitution Bench of the Apex Court in Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101 = 1991(1) SLJ 56 (SC) was concerned with the question as to whether Rule 9(1) b the rules requiring for termination of service but payment of salary was held in law. Justice Ramaswamy in his separate judgment held as follows:
“The public interest and the public good demand that those who discharge their duties honestly, efficiently and with a sense of devotion and dedication to duty should receive adequate protection and security of tenure. Equally insufficient, dishonest and corrupt or who became security risk should be weeded out so that successful functioning of the industry or manufacture of the goods or rendering of services would be available at the maximum level to the society and society thereby receives optimum benefit from the public money expanded on them as salary and other perks. Therefore, when a situation envisaged under statute or statutory rule or regulation or instructions having statutory force to remove or dismiss an employee the question arises whether they need at least minimum protection of fair play in action.”
15. The action has been taken in the instant case having regard to two factors namely; (a) the applicant has failed to produce the caste certificate by Mamlatdar and (b) that the issuing officer when contacted has denied issuing the caste certificate produced in favour of the applicant.
16. The applicant has produced along with his rejoinder a copy of the caste certificate dated 29.1.88. The first question for consideration is as to whether the District Social Welfare Officer was competent to issue a caste certificate in 1988 and if he was competent to do so was there a need to call for a fresh caste certificate issued by another authority namely; the Mamalatdar. Nothing has been brought on record by the respondents to show that District Social Welfare Officer was not competent to issue the caste certificate or that the orders issued by Department of Posts require production of a caste certificate by Mamalatdar to obtain the appointment.
17. We further note that when this caste certificate dated 1988 was referred to the issuing authority they denied having issued such a certificate. A copy of this reference and reply received is not annexed with the reply in this O.A. It appears that no notice has been given to the applicant to explain the above report. We have noted in Para 5 that Rabari Caste in the nesses of forests of Alech, Barada and Gir only have been notified as Scheduled Tribes. Ordinarily the applicant was entitled to a hearing on the letter sent by the issuing authority and to explain the circumstances regarding the production of caste certificate and without giving him this opportunity, it was not appropriate for the respondents to come to the conclusion that the certificate produced by the applicant is fake.
18. We, however, note some very unusual features in this case. As per the application form dated 19.3.2001 and the attestation from dated 19.6.2001 the date of birth of applicant is 14.7.1978. Thus this applicant was less than ten years of age in January 1988. The caste certificate produced by the applicant is very unusual as the father’s name is not indicated. The format of caste certificate prescribed by DOPT has three paragraphs. The first paragraphs requires father’s name and place and district. The second paragraph indicates that the same is being issued on the strength of caste certificate issued to mother/father as the case may be. The third paragraph requires mention of the place of which the certificate holder is ordinarily resident. The present certificate does not have Paras 2 and 3 as required under the instructions. The applicant has not explained these discrepancies either in his O.A. or the rejoinder.
19. Because of the peculiar circumstances of this case we are of the view that not giving him an opportunity has not prejudiced the case of the applicant. We are accordingly of the view that there is no merit in the O.A. and same deserves to be dismissed. No order as to costs.