ORDER
A.K. Agarwal, Vice Chairman
1. This O.A. has been filed by the applicant for quashing and setting aside an order of the Disciplinary Authority dated 27.9.2002 removing the applicant from service and order dated 4.3.2003 of the Appellate Authority rejecting the appeal. The applicant has also impugned the order of the Revisional Authority rejecting the revision petition.
2. The facts of the case, in brief, are as follows. The applicant was appointed as Postal Assistant on 27.7.1981 against a vacancy reserved for Scheduled Caste (SC) on the basis of a caste certificate issued by Sub-Divisional Magistrate (SDM), Navalgarh. The applicant was served a charge sheet dated 18.10.1996 alleging that the applicant belongs to “Kumhar” caste, but presented himself as a member of SC for getting appointment. A punishment of removal was imposed on the applicant vide order dated 29.9.1997, The applicant appalled against that order and the Appellate Authority vide its order dated 15.1.1998 modified the punishment from “removal from service” to “compulsory retirement”. The applicant filed a revision petition against this order and the Revisional Authority vide its order dated 24.7.2000 set aside the order of the Appellate Authority, The applicant got reinstated on 8.8.2000. Thereafter, vide order dated 2.3.2001, the Department of Posts, Government of India, the applicant was treated as on duty for the period 13.9.1997 to 7.8.2000 for all purposes.
3. The applicant has submitted that after the decision on his revision petition and reinstatement in the service. He was again served a charge memo dated 20.11.2001 by R-4 for a major penalty having identical charges. The applicant denied the charges and an inquiry was conducted. The applicant has contended that the Enquiry Officer, without going into the facts and material on record submitted enquiry report dated 13.8.2002 holding that the charges levelled against the applicant is proved. A copy of the enquiry report was received by the applicant and he made a representation highlighting that the original documents do contain the caste “Kumhar” and the original certificate was issued after due verification. Further, the applicant was deprived of reasonable opportunity of defence. However, R-4 imposed upon the applicant the penalty of removal from service vide its order dated 27.9.2002. The applicant preferred an appeal to R-3, but the same was rejected without considering earlier order of the Re visional Authority dated 24.7.2000 by which the applicant was fully exonerated. Revision Petition filed against this order dated 4.3.2003 was also rejected vide order dated 30.12.2003. Hence, this O.A.
4. The learned Counsel for the applicant submitted that while imposing penalty in the year October, 1996 the procedure for major penalty was followed on the charges levelled against the applicant. At that time, the Disciplinary Authority had imposed the punishment of removal from service which was made compulsory retirement by the Appellate Authority. However, on a revision petition filed against the order of the Appellate Authority, the penalty order was set aside by order dated 28.4.2000. The learned Counsel stated that in this order the Rcvisional Authority had not given any direction for further inquiry. This means that the Revisional Authority was satisfied with the submissions made in the revision petition and had decided to close the case. Now, the action of the respondents for commencing another disciplinary proceedings in November, 2001 based on the same charge is not tenable. During the second course of enquiry proceedings the procedure adopted by the Enquiry Officer leaves much to be desired. The Enquiry Officer has treated the earlier caste certificate submitted by the applicant in November, 1980 as invalid on the ground that SDM Navalgarh in his communication dated 11.6.2002 has cancelled the earlier caste certificate dated 15.11.1980. The learned Counsel contended that there is no justification for cancelling the caste certificate after a long gap of 21 years. The learned Counsel for the applicant has relied upon a judgment of a Division Bench of the Allahabad High Court given in the case of Surendra Kumar Singh v. U.P. Financial Corporation 2005(1) ATJ 642, wherein the order of dismissal given after 23 years, based on the ground that initial appointment was illegal was held non-sustainable. The learned Counsel for the applicant has also relied upon a verdict of the Madhya Pradesh High Court in the case of Shaikh Mobeen v. UOI 2004(3) ATJ 498, wherein the order of removal given on the basis of submitting a fake caste certificate was quashed. The learned Counsel for the applicant has also relied on a verdict of Division Bench of CAT, Principal Bench in the case of S.K. Mishra v. Union of India 2004(2) ATJ 488, wherein the order passed without considering the points urged in the appeal and the defence brief was set aside giving all consequential benefits.
5. The learned Counsel for the applicant concluding his submissions stated that in view of the judgments relied upon by him of Madhya Pradesh and Allahabad High Court, the action of removing the applicant on the ground of false caste certificate after a long gap of 21 years is unsustainable in law and deserves to be set aside.
6. The learned Counsel for the respondents stated that the averments made by the applicant in the O.A. Clearly show that at the time of his initial appointment he very well knew that his caste is Kumhar, which did not come under the category of SC, even then he successfully obtained a certificate from SDM Navalgarh mentioning a sub-caste “Jatiya”. The learned Counsel for the respondents stated that the grievance of the applicant that the points made by him in the appeal memo or revision petition have not been duly considered is wi thout any basis. He mentioned that the order dated 4.3.2003 of the Appellate Authority, as well as, the order dated 30.12.2003 of the Revisional Authority both are detailed sepaking orders covering all the points relevant to the case. The learned Counsel for respondents contended that the earlier decision of the Revisional Authority in favour of the applicant was not on the ground that the caste mentioned by him in the application for appointment was genuine and correct. The revision petition was allowed on the ground that proper opportunity was not accorded to the applicant for defending his case. The learned Counsel for the respondents stated that there is no dispute of the fact that applicant belongs to “Kumhar” caste. In fact, in a number of communications the applicant mentioned that he is “Kumhar” by caste. The learned Counsel contended that the fact that “Kumhar” is not notified as an SC is also not disputed. Thus, it is proved beyond any doubt that the applicant obtained his initial appointment on the basis of a false caste certificate. In view of such facts of the case the action of the respondents in removing the applicant from service is fully justified.
7. The learned Counsel for the respondents has relied upon a verdict of the Apex Court in the case of Kendriya Vidyalaya Sangathan v. Ram Ratan Jadhav wherein the dismissal from service was held proper when the appointment was obtained by suppressing vital information. He stated that the applicant had obtained false case certificate in the year 1980 and he has not disputed the veracity of the caste mentioned in the subsequent caste certificate dated 11.6.2001 given by SDM Navalgarh. In view of this, the action of the respondents is perfectly justified and needs to be upheld.
8. We have heard both the learned Counsel and have gone through the material placed on record. It is not disputed that the applicant was earlier given a SC certificate dated 15.11.1980 by SDM Navalgarh, which on subsequent inquiries was cancelled vide order dated 11.6.2001. It is also not disputed that the applicant belongs to “Kumhar” Caste. In fact, in the revision petition filed by the applicant against the order of the Appellate Authority dated 21.10.1997 he has mentioned that in the statement dated 14.8.1996 he had stated that “I am Kumhar by caste”. My appointment on the post of Dak Sahayak is w.e.f. 27.7.1981. My sub-caste is Jatiya, which is a sub-caste of Kumhar caste”.
9. We observe during that the first round of inquiry the Revisional Authority had exonerated the applicant vide order dated 24.7.2000 observing as follows:
Having not examined him under this rule the petitioner has been denied adequate opportunity of defence. It is also observed that concealing the caste “Kumhar” cannot be said to be a misconduct in itself. It was necessary to establish that the petitioner did not belong to a scheduled caste and had obtained and produced a false certificate of belonging to scheduled caste with the malafide motive of securing employment. Since this has not been done the penalty would deserves to be set aside.
10. We are of the considered opinion that in such cases it is not for the department concerned to prove that the employee does not belong to SC. In fact, it is the responsibility of the employee concerned to convince the Department on the basis of necessary documents, that he belongs to SC. When after necessary inquiries SDM, Navalgarh informed that the applicant belongs to Caste “Kumhar” and should not be taken as SC it was imperative on the part of the respondents to start disciplinary proceedings in this regard. We therefore, do not see anything wrong in the disciplinary proceedings which were commenced by issuing charge memo dated 20.11.2000.
11. We have gone through the orders of the Disciplinary Authority dated 27.9.2002, the order of the Appellate Authority 4.3.2003 and the Revisional Authority dated 30.12.2003 and find that they are fairly detailed reasoned speaking orders covering all essential points relevant to the facts of the case. The verdict of the Principal Bench relied upon by the Counsel for the applicant in the case of S.K. Mishra v. UOI (supra) is therefore of no help in the present case.
12. On the issue relating to appointment based on false caste certificate a three Judge Bench of the Apex Court in the case R. Vishwanatha Pillai v. State of Kerala and Ors. 2004(1) SC SLJ 298 : 2004(2) SU 1 (SC), has held as follows:
A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for Scheduled Caste thus depriving the genuine Scheduled Caste of appointment to that post does not deserved any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He, who comes to the Court with false claims, cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue.
13. In the above cited case, where an appointment was obtained on the basis of a false caste certificate, the Apex Court has also observed as follows:
Appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As appellant had obtained the appointment by playing a fraud he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all.
14. In view of the ratio laid down by the Apex Court in the case of R. Vishwanatha Pillai (supra), the ruling of Allahabad High Court and Jabalpur High Court relied upon by the learned Counsel for the applicant are of no help to the applicant. Keeping in view, the facts of the case and the ratio laid down by the Apex Court, we are of the considered opinion that this O.A. is completely devoid of merit. The O.A. is therefore dismissed with no orders as to costs.