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Himachal Pradesh High Court · body

2012 DIGILAW 1002 (HP)

Kapoor Singh v. State of Himachal Pradesh

2012-12-19

RAJIV SHARMA

body2012
JUDGMENT Per Rajiv Sharma, Judge. Petitioner was engaged as Part Time Chowkidar in the year 1977. Requisition was sent for filling up eight posts of Peon/Process Server/Chowkidar on regular basis vide Annexure R-1 dated 1.10.1988. Petitioner’s name was also sponsored by the Employment Exchange for considering his candidature for the post of Peon. His qualification was mentioned as 8th pass. Interviews were held on 9.12.1988. Selection Committee recommended the name of the petitioner. All the candidates, who appeared before the Selection Committee, were 8th pass. The Assistant Registrar, Cooperative Societies, sent a communication to the Registrar, Cooperative Societies, vide Annexure R-3, enclosing therewith medical certificate, character certificate, school leaving certificate and Scheduled Tribe certificate. According to the school leaving certificate, petitioner has been shown to be 9th fail. The date of issuance of certificate is 23.10.1983. 2. A complaint was received against the petitioner made by one Sh. Roop Kumar and Smt. Bhag Kali to the Deputy Commissioner, Kinnaur. The matter was ordered to be looked into by the Sub Divisional Officer (Civil), Kalpa. He looked into the matter and found that the petitioner has secured appointment on the basis of fake certificate. Thereafter, petitioner was served with a show cause notice on 25.6.2010, to which he filed reply. The Disciplinary Authority not satisfied with the reply filed by the petitioner, instituted regular inquiry against him under rule 14 of the CCS (CCA) Rules, 1965 and the memorandum was issued to the petitioner on 17.8.2010. It was received by the petitioner on 23.8.2010. He filed reply to the same on 26.8.2010. The Inquiry Officer submitted the report to the Disciplinary Authority. The copy of inquiry report was furnished to the petitioner vide letter dated 9.2.2012. He filed representation to the same. Thereafter, the Disciplinary Authority dismissed the petitioner after taking into consideration all the pleas taken by the petitioner to the inquiry report on 2.7.2012. 3. Mr. Dalip K. Sharma has vehemently argued that his client is illiterate and has never produced any school leaving certificate, showing his qualification 9th fail. He has further argued that for the post of Peon, no qualification was prescribed in the old Recruitment and Promotion Rules. He further argued that in the seniority list of Peons, qualification of his client has been shown ‘Nil’. 4. Mr. He has further argued that for the post of Peon, no qualification was prescribed in the old Recruitment and Promotion Rules. He further argued that in the seniority list of Peons, qualification of his client has been shown ‘Nil’. 4. Mr. Vikas Rathore, learned Deputy Advocate General has strenuously argued that the school leaving certificate furnished by the petitioner at the time of interview on 9.12.1988 is not genuine. He also argued that minimum qualification prescribed, as per requisition dated 1.10.1988, was middle pass and while sponsoring the name of the petitioner, his qualification has been recorded as 8th pass. 5. I have heard the learned counsel for the parties and have perused the pleadings carefully. 6. What emerges from the facts enumerated hereinabove is that requisition was sent for filling up 8 posts of Peon/Process Server/Chowkidar on 1.10.1988. It is evident from column No.10 of the requisition that essential qualification was middle. Petitioner has got his name registered with the Employment Exchange. His qualification has been shown to be 8th pass while sponsoring his name by the Employment Exchange. Petitioner was interviewed on 9.12.1988 after his name was sponsored by the Employment Exchange. In the record, furnished by the Assistant Registrar, Cooperative Societies to the Registrar, Cooperative Societies, copy of the school leaving certificate has also been enclosed, as is evident from Annexure R-III dated 3.1.1989. The Government Middle School, Kothi was upgraded to Government High School only in the year 2004. Thus, petitioner could not be admitted as 9th class student before 2004. The Inquiry Officer after going through the record has given findings that the certificate furnished by the petitioner was fake certificate. 7. Mr. Dalip K. Sharma has also argued that the petitioner was not permitted to engage his Defence Assistant of his choice. It has come in the reply that the petitioner was permitted to engage Defence Assistant and one Sh. Ram Prakash was engaged by him as Defence Assistant. All the documents were received by the petitioner alongwith memorandum. 8. The order passed by the Disciplinary Authority is reasoned. All the contentions raised by the petitioner in the reply to the inquiry report have been taken into consideration. Petitioner has failed to point out any infraction of the mandatory rules while holding the inquiry against him. All the documents were received by the petitioner alongwith memorandum. 8. The order passed by the Disciplinary Authority is reasoned. All the contentions raised by the petitioner in the reply to the inquiry report have been taken into consideration. Petitioner has failed to point out any infraction of the mandatory rules while holding the inquiry against him. Petitioner has been permitted to file reply to the memorandum and has also been permitted to engage Defence Assistant. The copy of the inquiry report was supplied to the petitioner on 9.2.2012, to which he filed representation. The decision to institute inquiry against the petitioner has only been taken after the report of the Sub Divisional Officer (Civil). 9. The plea of the petitioner that no qualification was prescribed for filling up the post merits rejection. The minimum educational qualification prescribed was the pass as per Annexure R-1 dated 1.10.1988. Since the minimum qualification was 8th pass, petitioner obtained false certificate and produced the same on the basis of which he was offered appointment as Peon. All the candidates, who had appeared before the Selection Committee on 9.12.1988, were possessing the qualification of middle pass. 10. The plea of the petitioner that he has been regularized on the basis of his experience of 11-12 years cannot be accepted. The Department had decided to fill up 8 posts vide Annexure R-1 whereby the minimum qualification was 8th pass. The petitioner has not been appointed after taking into consideration the experience but on the basis of requisition, which was sent to the Employment Exchange on 1.10.1988. Rather, the Selection Committee was convinced that since the petitioner has been shown 9th fail, he might have passed middle standard examination. The school leaving certificate has been issued under the seal of Head Master, Government High School, Kothi in the year 1983 whereas the Government Middle School, Kothi has been upgraded to Government High School in the year 2004. 11. Mr. Dalip K. Sharma has also submitted that since criminal proceedings are pending against the petitioner, departmental proceedings could not be initiated him. 12. Their Lordships of the Hon’ble Supreme Court in Avinash Sadashiv Bhosale (D) through LRs versus Union of India and others, 2012 (3) S.L.J. 392 have held that departmental proceedings and criminal proceedings can be continued simultaneously. Their Lordships have held as under: “45. 12. Their Lordships of the Hon’ble Supreme Court in Avinash Sadashiv Bhosale (D) through LRs versus Union of India and others, 2012 (3) S.L.J. 392 have held that departmental proceedings and criminal proceedings can be continued simultaneously. Their Lordships have held as under: “45. In view of the aforesaid legal principles enunciated and reiterated by this Court, we cannot accept that because the appellant had been prosecuted, the departmental proceedings could not have been continued simultaneously. As pointed out by Mr. Dwivedi, the charges against the appellant in the criminal trial related to the commission of criminal offences under Sections 120(B), 420, 467, 468, 471 and 201 of Indian Penal Code. The proof of criminal charges was depended upon prosecution producing proof beyond reasonable doubt relating to the culpability of the appellant alongwith other persons. In the departmental proceedings, the basic charge was that appellant whilst posted as a Branch Manager of Washi Turbhe Branch, failed to discharge his duties with utmost integrity, honesty, devotion and diligence to ensure and protect the interest of the Bank and acted in a manner unbecoming of a Bank Officer. The aforesaid charge clearly related to the manner in which the appellant performed the duties as the Manager of the Branch of the Bank. It had nothing to do with any criminal liability attaching to such conduct. It must be emphasised that Bank officials act as trustees of funds deposited by the public with the Bank. They have an obligation to earn the trust and confidence of not only the account holders but also the general public. The standard of integrity required of the Bank officials, particularly the cashiers, accountants, auditors and the Management at all levels, is like the Caesar’s wife, they must be above suspicion. Mr. Bhosale failed to maintain such high standards of integrity. He therefore, acted in violation of Rule 50(4) of the 1992 Rules. We, therefore, do not find any merit in the aforesaid submissions of Mr. Jain. 46. Mr. Dwivedi, in our opinion, has rightly pointed out that the conduct of the criminal trial was in the hands of the prosecuting agency. Having registered the First Information Report, the Bank had little or no role to play, apart from rendering assistance to the prosecuting agencies. Jain. 46. Mr. Dwivedi, in our opinion, has rightly pointed out that the conduct of the criminal trial was in the hands of the prosecuting agency. Having registered the First Information Report, the Bank had little or no role to play, apart from rendering assistance to the prosecuting agencies. In our opinion, the failure of the prosecution in producing the necessary evidence before the trial court can not have any adverse impact on the evidentiary value of the material produced by the Bank before the Inquiry Officer in the departmental proceedings. Before the Inquiry Officer, the Bank had placed on the record all the relevant documents which clearly establish that the appellant had exceeded his discretionary powers in purchasing the cheques and issuing demand drafts to show undue favour to the three construction companies named in the charge sheet. In view of the above, the findings recorded by the Inquiry Officer can not be said to be based on no evidence. It is a settled proposition of law that the findings of Inquiry Officer cannot be nullified so long as there is some relevant evidence in support of the conclusions recorded by the Inquiry Officer. In the present case, all the relevant documents were produced in the Inquiry to establish the charges levelled against the appellant. It is a matter of record that the appellant did not doubt the authenticity of the documents produced by the Bank. He merely stated that the signature on the documents were not his. The aforesaid statement of the appellant was nullified by Mr. S.M. Mahadik, who appeared as a witness for the Bank. He clearly stated that he recognized the signature of the appellant as he had been working as his subordinate.” 13. There is no illegality or perversity in the orders passed by the Disciplinary Authority. The petitioner has obtained public employment on the basis of false certificate. According to instruction No.2 below rule 11 of the CCS (CCA) Rules, 1965 where the public employment is obtained on the basis of fraudulent certificate, the penalty of dismissal/removal is to be imposed. 12. Accordingly, in view of the observations and analysis made hereinabove, there is no merit in the writ petition and the same is dismissed. Pending application(s), if any, also stands disposed of. No costs.