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2017 DIGILAW 899 (ORI)

Kishore Kumar Bhatta v. Union of India

2017-08-17

SUJIT NARAYAN PRASAD

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JUDGMENT : S.N. Prasad, J. This writ petition is for quashing the order as contained in Annexure-5 dated 26.02.2007 passed by the Commandant-66 BN, CRPF, Vishakhapatnam, Andhra Pradesh whereby and where under the petitioner has been inflicted with the punishment of dismissal from service with effect from the date of issuance of the order i.e. 26.02.2007 and the order under Annexure-8 passed by the D.I.G. of Police, C.R.P.F., Bhubaneswar, the appellate authority dated 24.01.2008 whereby and where under the appellate authority has rejected the appeal by affirming the order passed by the disciplinary authority. 2. Fact of the case is that the petitioner has obtained his service as Constable under the C.R.P.F. by participating in the due selection process way back in the year 2000 under the S.T. category by submitting a caste certificate showing to be caste of ‘Saura’ which comes under the S.T. category. The authority has issued with a memorandum of charge on 10.06.2006 alleging therein that he has obtained his initial appointment as Constable (Ground Duty) in C.R.P.F. by producing fake caste certificate by showing himself under the reserved category which actually was not issued by the Tahasildar, Nayagarh and as such the same has been found to be a major misconduct on his part. The petitioner has appeared before the enquiry officer and defended himself by submitting that he still belongs to S.T. category, however the process in getting the caste certificate may be illegal but the caste certificate is not illegal since his identity under reserved category cannot be doubted for the reason that ‘Saura” comes under the S.T. category. He submits that in course of pendency of the departmental proceeding he has obtained the caste certificate showing under the S.T. category by following due procedure. The Enquiry Officer has found the charge against him by holding him guilty on getting the caste certificate by not settled means of procedure, the disciplinary authority has accepted the report and accordingly second show cause notice along with the enquiry report has been furnished to him which he has replied but the disciplinary authority has not satisfied with the reply passed the order of dismissal from service. The petitioner has approached the appellate authority under the statutory appeal as provided under C.R.P.F. Act, 1949. 3. The petitioner has approached the appellate authority under the statutory appeal as provided under C.R.P.F. Act, 1949. 3. Learned counsel for the petitioner has submitted that in the detail memo of appeal the plea has been taken that there is no doubt about the fact that the petitioner belongs to S.T. category being coming under ‘Saura’ caste and taking into consideration the specific plea, the D.I.G. of Police, C.R.P.F., Bhubaneswar has issued a communication to the Collector, Nayagarh on 4.6.2007 by asking him to re-verify the status of the S.T. certificate and confirm authenticity of the genuineness of the said certificate issued to the petitioner to this office at the earliest to decide the appeal, along with the photocopy of the Scheduled Caste Certificates bearing Nos.3040 of 1998 dated 20.07.1998 and 9321 of 2006 dated 11.12.2006 issued by the Tahasildar/Addl. Tahasildar, Nayagarh have been enclosed for needful action. She submits that the appellate authority without waiting for the report to be submitted by the Collector as desired by him vide letter dated 4.6.2007 has finally been decided the appeal by affirming the order of dismissal from service having been passed by the disciplinary authority. She further submits that the counter affidavit filed by the opposite parties, they have not been disputed the caste of the petitioner rather they have submitted that the petitioner belongs to the ‘Saura’ caste and as such submission has been advanced that there is no fault on his part regarding impersonation on the identity of the caste however, she fairly submits that there may be some fault in getting the caste certificate but that does not mean that the petitioner has committed misconduct warranting him to inflict punishment of dismissal from service. 4. Learned counsel for the opposite party representing the Union of India represented through the D.G., C.R.P.F. has submitted that the petitioner had committed gross misconduct by submitting fake certificate as such the authority after coming to know about the fact has issued a show cause notice imposing a punishment, in which he has participated. The Enquiry Officer has submitted a report proving the charge leveled against him as true and thereafter the order of dismissal has been passed. He further submits that the order of dismissal has been confirmed by the appellate authority. The Enquiry Officer has submitted a report proving the charge leveled against him as true and thereafter the order of dismissal has been passed. He further submits that the order of dismissal has been confirmed by the appellate authority. He has raised the objection by submitting that the petitioner without approaching to the remedy of revision as provided under Rule 29 of the Central Reserve Police Force Rules, 1955 to prefer revision against the order passed by the revisional authority as such the writ petition may not be entertained, however she fairly submits that the appellate authority has not taken into consideration the letter written by him dated 4.6.2007 asking the Collector to verify the authenticity of the Caste certificate submitted by the petitioner. 5. This Court has heard learned counsel for the parties and perused the documents available on record. It is evident that the petitioner has got appointment as Constable under S.T. category belonging to ‘Saura’ caste subsequently it was found that the petitioner has obtained caste certificate against the settled procedure to obtain it from the office of the competent authority as such the departmental proceeding has been initiated alleging therein that the appointment having been obtained by him on the basis of fake/forged caste certificate and accordingly the order of dismissal from service has been passed. The petitioner has approached to the appellate authority as per power conferred under Rule 28 of the C.R.P.F. Rules, 1955 raising entire fact enclosing the caste certificate issued during pendency of the departmental proceeding by following the settled procedure to obtain it from the office of the competent authority. 6. It is evident from the decision taken by the D.I.G. being the appellate authority dated 4.6.2007 addressed to the Collector, Nayagarh whereby and where under has passed the order which is reflected herein below :- “As it is a matter of future career of the individual before taking any action being an appellate authority, you are therefore, requested to re-verify the status of ST certificate and confirm authenticity and genuineness of the said certificate issued to above person to this office at the earliest to decide his appeal. The photocopy of scheduled caste certificates bearing No.s.3040/1998 dated 20.07.1998 and 9321/06 dated 11.12.2006 issued by the Tahasildar/Addl/Tahasildar, Nayagarh, are enclosed for needful action.” 7. The photocopy of scheduled caste certificates bearing No.s.3040/1998 dated 20.07.1998 and 9321/06 dated 11.12.2006 issued by the Tahasildar/Addl/Tahasildar, Nayagarh, are enclosed for needful action.” 7. This Court has perused the order dated 24.01.2008, from its perusal it is evident that the appellate authority in his communication dated 4.6.2007 although has asked to submit the authenticity of the caste certificate but without making any reference to that effect or without taking note of that order with respect to the enquiry report which was requested to be submitted from the office of the Collector, has passed the order of appeal by confirming the order of the disciplinary authority. 8. It is settled that the appellate authority while exercising the power of statutory appeal is supposed to act with all fairness and transparency, although the record shows that the appellate authority at the initial stage taking a view regarding testing the veracity of the caste certificate by requesting the Collector to submit a report without making any reference in the final order, has rejected the appeal. 9. It is evident from the counter affidavit that the caste certificate is not in dispute which is evident from para-20 of the counter affidavit wherein it has been stated that “the petitioner admittedly belongs to ST category, but he could not obtain the Caste Certificate through Tahasildar, Nayagarh after observing necessary formalities adopted by the State Government and managed to obtain the same through forged means.” It is further evident from the record that what has been stated at para-20 of the counter affidavit i.e. regarding fault in obtaining the caste certificate but the charge is otherwise, i.e., the charge pertains to obtain the service through forged/fake caste certificate but the authorities while in filing counter affidavit himself has disputed the charge which he has inflicted on the petitioner, the appellate authority ought to have taken into consideration this aspect of the matter. 10. Before coming into any conclusion, this Court has thought it proper to decide the maintainability of the writ petition, since preliminary objection regarding maintainability of the writ petition on the ground of availability of remedy of revision as provided under Rule 29 of the Central Reserve Police Force Rules, 1955. 10. Before coming into any conclusion, this Court has thought it proper to decide the maintainability of the writ petition, since preliminary objection regarding maintainability of the writ petition on the ground of availability of remedy of revision as provided under Rule 29 of the Central Reserve Police Force Rules, 1955. There is no dispute that the power of revision under the CRPF Rules, 1955 is provided but merely on the ground of availability of alternative remedy, the jurisdiction of the High Court sitting under Article 226 of the Constitution of India does not bar. It is settled proposition that relegating matter before alternative forum on the ground of availability of alternative remedy is the discretion of the High Court i.e. to be taken into the facts and circumstances of each and every case. 11. This Court has thought it proper to entertain the writ petition on the basis of the fact that the appellate authority has not taken into consideration the vital aspect of the matter which he has asked to the Collector by making request vide letter dated 4.6.2007 to submit a report regarding the authenticity of the caste certificate and as such it would be appropriate for this Court to entertain the writ petition, since the vital aspect of the matter has been left by the appellate authority while considering the appeal. Further for another reason is, this writ petition is pending since 2008 and the petitioner is facing the order of dismissal and after such long period relegating the matter before the revisional authority would be unjust and improper. 12. In that view of the matter, the order passed by the appellate authority is not sustainable in the eye of law, accordingly the same is quashed. 13. In view thereof, the matter is remitted back before the appellate authority to pass fresh order after taking into the consideration the report submitted by the Collector as desired by him vide communication dated 4.6.2007 within six weeks from the date of receipt of copy of this order. Accordingly, the writ petition is disposed of.