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2017 DIGILAW 2649 (ALL)

RAMA SRIVASTAVA v. UNION OF INDIA

2017-11-16

IRSHAD ALI, PANKAJ MITHAL

body2017
JUDGMENT Hon’ble Irshad Ali, J.—Heard learned counsel for the parties and perused the records. 2. The present writ petition has been filed for issuance of direction in the nature of Certiorari quashing the order dated 11.9.2017 passed in OA No. 533/08 ‘Smt. Rama Srivastava v. Union of India and others’ with the further prayer to release the family pension and other retiral benefits admissible to the husband of the petitioner. 3. The facts of the case are that the husband of the petitioner late Sudhir Chandra Srivastava was appointed on the post of substitute Khalasi in the office of Printing and Stationary, North Eastern Railway, Gorakhpur on 16.9.1970. At the time of appointment, the date of birth of the petitioner was entered as 26.12.1948. Subsequently, he was regularized on the post of substitute Khalasi and was granted promotion on the post of Compositor, Grade II and was further promoted to Compositor, Grade I. 4. Late Sudhir Chandra Srivastava while working as Compositor, Grade I was issued a charge-sheet on 8.11.1979 with the allegation that he has submitted a forged certificate showing his date of birth as 26.12.1948 issued by Sri Nirankar Vidyalaya, Gorakhpur. The husband of the petitioner submitted a reply to the charge-sheet and in pursuance thereof, the inquiry officer submitted its report which was served to the husband of the petitioner alongwith show-cause notice by the disciplinary authority vide letter dated 16.4.1999 which was replied by the husband of the petitioner on 11.5.1999. 5. After submission of reply to the show-cause notice, Senior Manager, Printing and Stationary called for an explanation from the husband of the petitioner vide letter dated 12.7.2004 and an explanation dated 16.7.2004 was submitted with the request to quash the charge-sheet issued against him. After examination of record, the disciplinary authority found that the charges levelled against the husband of the petitioner were not found proved and he was exonerated from the charges and the charge-sheet was quashed vide order dated 21.7.2004 and in pursuance thereof reinstatement order was passed on 1.3.2006. However, the Chief Material Manager passed an order dated 11.9.2005 whereby an explanation regarding manipulation in the date of birth from 4.8.1942 to 26.12.1948 was called and after considering the explanation submitted by the husband of the petitioner, he was removed from service vide order dated 5.7.2005. 6. However, the Chief Material Manager passed an order dated 11.9.2005 whereby an explanation regarding manipulation in the date of birth from 4.8.1942 to 26.12.1948 was called and after considering the explanation submitted by the husband of the petitioner, he was removed from service vide order dated 5.7.2005. 6. The husband of the petitioner challenged the order dated 5.7.2005 by filing OA No. 789/2005 before the Central Administrative Tribunal which was finally disposed of vide order dated 20.7.2005 directing him to file a representation before the competent authority with the further direction to pass a reasoned and speaking order within a period of three months from the date of receipt of the representation. 7. In pursuance of the order of the Tribunal, a representation dated 17.10.2005 was filed and the revisional authority after considering the grievances remitted the matter back to the disciplinary authority for holding an inquiry afresh by framing fresh charges by passing an order on 25.1.2006. The order dated 25.1.2006 was again challenged in OA No. 806/2006 which was disposed of vide letter dated 3.8.2006 with the direction to the disciplinary authority to dispose of the representation dated 15.6.2006 within a period of 15 days from the date a certified copy of the order is produced before him. 8. The disciplinary authority issued a fresh charge-sheet on 27.4.2006 levelling the same charges of presentation of fake certificate showing the incorrect date of birth, the charges were duly replied on 4.7.2006 and, thereafter, the inquiry officer submitted report which was subjected to challenge by means of an objection dated 8.2.2007 with the request to quash the inquiry report and charge-sheet dated 27.4.2006. The disciplinary authority passed an order on 6.3.2007 directing removal of the husband of the petitioner from service. The order of removal was subjected to an appeal which was dismissed vide order dated 24.10.2007 against which a revision was preferred by the husband of the petitioner on 20.11.2007 which has also been dismissed vide order dated 15.4.2008 by the revisional authority. 9. The orders referred hereinabove were challenged in OA No. 789/2005 before the Central Administrative Tribunal wherein vide order dated 20.7.2005, direction was issued to the husband of the petitioner to represent before the General Manager, North Eastern Railway and to decide the representation. 9. The orders referred hereinabove were challenged in OA No. 789/2005 before the Central Administrative Tribunal wherein vide order dated 20.7.2005, direction was issued to the husband of the petitioner to represent before the General Manager, North Eastern Railway and to decide the representation. In pursuance of the same, General Manager decided the representation of the applicant by instructing the competent authority to issue a fresh charge-sheet and take appropriate action by holding an inquiry against late Sudhir Chandra Srivastava and thereafter the competent authority issued a fresh charge-sheet on the same charge and the inquiry officer after conducting the inquiry submitted his report holding that the husband of the petitioner has submitted fake date of birth certificate at the time of appointment and the disciplinary authority agreed with the report of the inquiry officer and passed an order of removal on 6.3.2007 which was affirmed in appeal. 10. The order dated 6.3.2007 was challenged by filing OA No. 533 of 2008 and after hearing both the parties, the aforesaid OA was dismissed vide judgment and order dated 31.3.2011. The husband of the petitioner feeling aggrieved by the dismissal of the OA referred hereinabove filed a writ petition No. 46302 of 2011 before this Court which was allowed vide judgment and order dated 7.10.2015 and the matter was remanded back to the Tribunal only on the question that the date of birth of the husband of the petitioner is 4.8.1942 and on that basis, he will attain the age of superannuation on 3.8.2002 and in case he has attained the age of superannuation in the year 2002, there could not have any order for dismissal of service on attaining the age of retirement of an employee. 11. The Tribunal after remanding the matter under the judgment and order of this Court, the Tribunal has again dismissed the OA No. 533/2008 ‘Smt. Rama Srivastava v. Union of India and others’. Feeling aggrieved, the present writ petition has been filed before this Court challenging the order of the Tribunal. 12. We have heard learned counsel for the parties and perused the judgment dated 11.9.2017 which is under challenge in the present writ petition. Feeling aggrieved, the present writ petition has been filed before this Court challenging the order of the Tribunal. 12. We have heard learned counsel for the parties and perused the judgment dated 11.9.2017 which is under challenge in the present writ petition. On perusal, it is apparent on the face of it that the Tribunal has reconsidered the submission of the parties and has come to the conclusion that the husband of the applicant has obtained appointment on the basis of fake certificate. 13. The Tribunal while dismissing the original application No. 533 of 2008 has considered the issue that whether a retired employee can be dismissed from service or not and while deciding the said issue, the Tribunal has recorded finding that the husband of the petitioner at the time of appointment has furnished a fake certificate showing the incorrect date of birth. The inquiry officer and the disciplinary authority after giving fullest opportunity to the petitioner has recorded that the petitioner has obtained appointment on the basis of forged and fabricated certificate which was subject-matter of challenge in appeal and revision wherein the punishment imposed was affirmed by the appellate and revisional authorities. The petitioner has failed to establish that he has not committed fraud in obtaining the appointment in the respondent department. Fraud vitiates entire thing. Thus, the Tribunal while considering the matter on remand has not committed any error in holding that the punishment awarded to the petitioner does not suffer from any infirmity or illegality. 14. In view of the above, the finding recorded by the Tribunal while dismissing the original application No. 533 of 2008 (Smt. Rama Srivastava v. Union of India and others) has not committed illegality. Thus, it does not require interference by this Court. 15. Accordingly, the writ petition lacks merit and is hereby dismissed.