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2012 DIGILAW 1706 (ALL)

Constable 47251 Manoj Kumar v. State of U. P. and Others

2012-07-30

SIBGHAT ULLAH KHAN

body2012
Sibghat Ullah Khan, J.— Heard learned counsel for the petitioner and learned standing counsel for the respondents. 2. Petitioner was appointed as constable in P.A.C. in the year 1998 against vacancy reserved for scheduled caste. For the said purpose petitioner had filed a certificate showing that he was chamar by caste which is a scheduled caste. Thereafter some complaint was received that petitioner was only backward (ahir/yadav) and he had obtained appointment against scheduled caste vacancy by filing false caste certificate. Charge-sheet/notice was issued on 5.8.2006 to the petitioner to show cause as to why his appointment shall not be cancelled. Petitioner filed reply. After considering the reply (which was virtually an admission) petitioner's appointment was cancelled through order dated 26.8.2006 passed by the Commandant 42nd Battalion, P.A.C., Naini, Allahabad, copy of which is Annexure-3 to the writ petition. Against the said order petitioner filed appeal which was dismissed on 11.6.2012 by Deputy Inspector General of P.A.C., Eastern Zone, U. P. Lucknow hence this writ petition. 3. Petitioner filed reply to the charge-sheet/show cause notice on 14.8.2006 and 17.8.2006. Copy of notice dated 5.8.2006 has been annexed alongwith writ petition but copies of replies have not been annexed by the petitioner. 4. In the order dated 26.8.2006 in para 4 it is mentioned that petitioner in his replies dated 14.8.2006 and 17.8.2006 mentioned that at the time of appointment he had not filed any certificate showing that he belonged to scheduled caste and that he was a member of ahir caste which was O.B.C. It is further mentioned in the said para that the allegation of the petitioner was utterly false as in his statement given before Inquiry Officer in preliminary inquiry he categorically stated that at the time of his appointment in October, 1998 he went to Tehsil Jamaniya District Ghazipur for obtaining caste certificate and there he met a person whose name he did not know and that person gave him a certificate of scheduled caste and on the basis of the said certificate petitioner was taken in service. It was further stated by him before Inquiry Officer that afterwards for preparation of service/character book he was asked to produce caste certificate and as he belonged to Yadav caste hence he obtained a certificate to that effect and presented the same. It was further stated by him before Inquiry Officer that afterwards for preparation of service/character book he was asked to produce caste certificate and as he belonged to Yadav caste hence he obtained a certificate to that effect and presented the same. Accordingly, in the impugned order dated 26.8.2006 (as well as in the appellate order) it was mentioned that petitioner admitted that he was not scheduled caste still he obtained employment under scheduled caste reserved quota. 5. The main argument of learned counsel for the petitioner is that he was forced to confess before the Inquiry Officer. This is an untenable argument. Before the authorities below this plea does not appear to have been taken. It has not been shown that what compulsion was exercised upon the petitioner to give the statement. Petitioner took up a fantastic case that a person whose name was not known to the petitioner gave a scheduled caste certificate and on the basis of that certificate petitioner obtained employment. 6. The next argument of learned counsel for the petitioner is that no formal inquiry was held and petitioner's application for appointment was not produced before the Inquiry Officer or the authority which passed the termination order to show that petitioner had obtained employment by asserting that he belonged to scheduled caste. As petitioner categorically admitted in the preliminary inquiry that he obtained appointment by showing himself to be a member of scheduled caste hence it was not necessary to search the initial application form of the petitioner. Moreover there is no allegation that in the service book/record petitioner has not been shown to have been appointed under scheduled caste reserved quota. 7. Supreme Court in Allgarh Muslim University and others v. Mansoor Ali Khan. AIR 2000 SC 2783 : 2000 (4) AWC 2993 (SC) and Ashok Kumar Son/car v. Union of India and others, (2007) 4 SCC 54 : 2007 (3) AWC 2846 (SC). has held that a person challenging an order on the ground that opportunity of hearing was not provided to him will have to show in the petition challenging the order that in case opportunity had been provided, what plausible cause he would have shown. Opportunity of hearing is not an empty formality. 8. has held that a person challenging an order on the ground that opportunity of hearing was not provided to him will have to show in the petition challenging the order that in case opportunity had been provided, what plausible cause he would have shown. Opportunity of hearing is not an empty formality. 8. Supreme Court in Chairman cum Managing Director, Coal India Limited and another v. Mukul Kumar Choudhuri and others, AIR 2010 SC 75 , has held that if delinquent admits the charge, no procedural irregularity can be taken into consideration. 9. In Commissioner of Police, New Delhi v. Narender Singh. AIR 2006 SC 1800 , it has been held that even after acquittal in criminal case, in departmental proceedings the employee can be dismissed from service merely on the basis of confession made by him before police (which was not admissible in criminal case hence in the criminal case the employee concerned was acquitted). 10. Accordingly, there is absolutely no merit in the writ petition hence it is dismissed. _____________