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2019 DIGILAW 174 (ORI)

Umesh Chandra Digal v. Bank of India

2019-03-01

JATINDRA PRASAD DAS, S.K.MISHRA

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JUDGMENT : Jatindra Prasad Das, J. 1. This intra Court appeal is directed against the judgment dated 23.08.2017 (Reported in 2017 Lab IC 4692 (Ori) passed by the learned Single Judge in W.P. (C) No. 11971 of 2006 declining to interfere with the dismissal order passed against the present appellant by the disciplinary authority-respondents. 2. The present appellant as the petitioner filed the writ application with the contentions that he being an Ex-serviceman was appointed as armed guard in the opposite party-Bank on 11.08.1978. The petitioner, while working as Daftari in the opposite party-Bank in the district of Ganjam, was served with two charges alleging that he being a Christian got a job as armed guard in the Bank on the strength of one fake certificate showing him to be a member of Scheduled Caste issued by the Tahasildar, G. Udayagiri on 08.08.1978. The 2nd allegation was that he produced a false transfer certificate showing his date of birth as 01.06.1951 even though his actual date of birth as per School Register was 03.07.1944. The petitioner-appellant denied the charges and an enquiry was conducted. On 15.11.1993, the Enquiring Officer submitted his report holding that both the charges were proved against the appellant and basing on that the disciplinary authority imposed the punishment of dismissal on the appellant, which was confirmed by the Appellate authority by order dated 29.05.1995. The appellant moved this Court in O.J.C. No. 3716 of 1996 challenging the order of dismissal and this Court by its judgment dated 16.09.1997 quashed the enquiry report as well as the punishment imposed on the appellant and remitted back the case to the Enquiring Officer to examine the evidence afresh in the light of observations made in the judgment and also to examine some revenue officials and the Headmaster of the school and to give a fresh finding. Although the exercise was directed to be completed within four months still after about lapse of six years on 15.07.2003 Enquiring Officer submitted the fresh report holding that the charge No. 1 was proved against the appellant and the charge No. 2 was not proved. Basing on the said report, the disciplinary authority again passed the order of dismissal against the appellant on 19.10.2005 and the appeal preferred by the appellant before the concerned appellate authority was also rejected. Basing on the said report, the disciplinary authority again passed the order of dismissal against the appellant on 19.10.2005 and the appeal preferred by the appellant before the concerned appellate authority was also rejected. Thereafter, the petitioner-appellant filed the W.P. (C) No. 11971 of 2006 before this Court assailing the findings of the disciplinary authority and the appellate authority as well as the order of dismissal to be illegal and un-1awful. 3. The appellant as the petitioner contended in the writ application that he was issued the "Caste Certificate" showing him to be a Scheduled Caste by the concerned Tahasildar, the competent authority on 08.08.1978 and by the time, the charge was framed in the year 1991, the "Caste Certificate" was valid. He alleged that subsequent thereto being pressurized by the Bank officials the said "Caste Certificate" was cancelled by the concerned Tahasildar only on 15.02.1993. It was the further case of. the petitioner-appellant that he preferred appeal before the Sub-collector, Kandhamal against the cancellation order passed by the Tahasildar and the Sub-collector setting aside the said cancellation order remanded the matter back to the Tahasildar on 22.11.2000 for fresh enquiry. The petitioner-appellant alleged that again the Tahasildar cancelled the "Caste Certificate" on 12.12.2001 but no order was pronounced. The petitioner-appellant moved an application before the concerned Collector, Ganjam and only after his direction, the Tahasildar pronounced the order in the open court on 04.09.2007. It is further case of the petitioner-appellant that he has filed an appeal bearing No. 12 of 2007 before the Sub-collector, Kandhamal after pronouncement of the order by the Tahasildar and the said appeal is still pending disposal. Hence, he contended before the learned Single Judge that only charge that has been held to be proved against the petitioner-appellant was that he produced a fake "Caste Certificate" at the time of his appointment, but neither the "Caste Certificate" was cancelled at the time of framing of charge nor any final order has been pronounced in that respect till date. Thus, it was submitted before the learned Single Judge that the findings reached by the opposite parties-authorities were misconceived and illegal. 4. Thus, it was submitted before the learned Single Judge that the findings reached by the opposite parties-authorities were misconceived and illegal. 4. It was the case of the respondents-opposite parties that while the petitioner-appellant was given appointment in the year 1978, the appointment contained the conditions that his service is liable to be terminated with appropriate notice, if it revealed at any time after his appointment that information given and the particulars furnished by him in the application and its enclosures are materially incorrect or false or any particular called for by the Bank therein or thereafter are will-fully suppressed. It was further contended that although the petitioner-appellant was appointed in the year 1978, subsequently on receipt of complaint regarding "Caste Certificate" of the petitioner-appellant to be fake one, which was subsequently cancelled by the competent authority, the charges were framed followed by the enquiry and the punishment. Thus, it was contended that since the petitioner-appellant, being a member of Christian community, filed a fake certificate to be a Scheduled Caste, he was guilty of furnishing false information and that having been found out on enquiry, he has been rightly awarded with the punishment of dismissal. It was also submitted that after the 1st order of dismissal quashed by this Court, the petitioner-appellant was reinstated in service and continued as such till 19.10.2005, when the subsequent order of dismissal was passed against him. It was submitted that it was not a question of getting appointment by showing him a member of Scheduled Caste but, the question was of integrity and honesty of which the petitioner-appellant was found to be lacking by producing false document and it amounted to gross misconduct calling for major punishment of dismissal. 5. Learned Single Judge accepting the contentions made on behalf of the opposite parties-respondents held that the petitioner-appellant was guilty of misconduct for having furnished fake "Caste Certificate" thereby violating the terms of appointment and this Court while exercising jurisdiction under Article 226 of the Constitution of India cannot again re-assess the evidence as to the finding of facts in course of departmental enquiry as per the settled positions of law. Learned Single Judge further observed that although the petitioner-appellant did not get the appointment under the Scheduled Caste quota still the fact remained that he has misled the authority by furnishing fake "Caste Certificate" which was enclosed along with the application form and has got some weightage for being a Scheduled Caste, which was a gross misconduct. Accordingly, the impugned judgment was passed rejecting the application of the petitioner-appellant. 6. It has been submitted in the appeal that the learned Single Judge erroneously held that the petitioner-appellant furnished a fake "Caste Certificate" which was not correct on the admitted facts on record. It was submitted by learned counsel for the appellant-petitioner that the positions of law is not disputed that the jurisdiction of this Court in exercise of its power under Article 226 of the Constitution of India is limited but at the same time, it is also the position of law that this Court can interfere in exercise of its extra-ordinary jurisdiction, if it is found out that findings reached by the departmental authority are perverse or based on no evidence. 7. Per contra, the learned senior counsel appearing for the respondents reiterated the submissions and contentions as made before the learned Single Judge that since the petitioner violated the terms and conditions of his appointment by furnishing fake "Caste Certificate" his service was rightly terminated. 8. The only question remained to be considered is as to whether the petitioner-appellant furnished a fake "Caste Certificate" at the time of his appointment showing him to be a member of Scheduled Caste even though, he belonged to Christian community. The 2nd charge regarding date of birth has not been proved. In this regard, the undisputed rather admitted facts are that the petitioner-appellant was the sole candidate against the single vacancy, which was not reserved for Scheduled Caste or Scheduled Tribe category. Secondly, the petitioner-appellant did not get his job on the basis of the "Caste Certificate" rather, as it was submitted on behalf of the petitioner-appellant, he was considered for appointment for being an Ex-serviceman. Thirdly, by the time, the charges was served on the petitioner-appellant on 26.06.1991, the Caste Certificate as furnished by him held good having been issued by the competent authority. Thirdly, by the time, the charges was served on the petitioner-appellant on 26.06.1991, the Caste Certificate as furnished by him held good having been issued by the competent authority. It was subsequently cancelled by the concerned Tahasildar only on 15.02.1993 and as detailed hereinbefore the said order having been set aside by the appellate authority, the matter was remanded back and the concerned Tahasildar pronounced the final order only on 04.09.2007, that too the appeal preferred against the said order by the petitioner-appellant is still sub-judice. Thus, on the stated positions, it can never be said that the "Caste Certificate" furnished by the petitioner-appellant at the time of his appointment was fake. In the worst, it could be said to have been wrongly issued for which it was cancelled subsequently but, can never be said to be fake or false. It was further contended on behalf of the petitioner-appellant in course of hearing of this appeal that a criminal complaint was lodged against the petitioner-appellant before the court of learned Judicial Magistrate First Class, G. Udayagiri and by judgment dated 28.01.1997, the petitioner-appellant was acquitted with the observation that the prosecution failed to establish that the petitioner-appellant as accused fabricated the "Caste Certificate" so as to be liable under Section 420 of the Indian Penal Code. The State approached this Court against the said order of acquittal but, it has been dismissed on 06.12.2001. 9. In the given of circumstances, on admitted positions of the facts, the Caste Certificate issued in favour of the petitioner-appellant is yet to be finally cancelled. Even if it is held that the said Caste Certificate stood cancelled by the competent authority still it can never be said to be a fake certificate to have been furnished by the petitioner-appellant at the time of his appointment in the year 1978 by any stretch of imagination. The dictionary meaning of word "fake" is "not real" or "false" or "fraudulent". But on the admitted facts in this case, the Caste Certificate furnished by the petitioner-appellant was duly issued by the competent authority, which was legally valid till it was first cancelled in the year 1993, apart from the fact that the said proceeding of cancellation is yet to reach its finality. But on the admitted facts in this case, the Caste Certificate furnished by the petitioner-appellant was duly issued by the competent authority, which was legally valid till it was first cancelled in the year 1993, apart from the fact that the said proceeding of cancellation is yet to reach its finality. Hence, the charge framed against the petitioner-appellant that he produced a fake "Caste Certificate" based on no material and in view of the fact-situations detailed hereinbefore, the finding reached by the opposite parties-authorities that the petitioner-appellant furnished the fake "Caste Certificate" at the time of his appointment in the year 1978 cannot be said to be legally sustainable. 10. In view of the aforesaid positions, we are unable to concur with the findings reached by the learned Single Judge that in the given facts and circumstances, this Court cannot interfere with the finding reached by the disciplinary authority while exercising jurisdiction under Article 226 of the Constitution of India. As discussed hereinbefore, the charge itself was baseless and the findings reached by the disciplinary authority were completely erroneous. Consequently, therefore, the order of dismissal passed against the petitioner-appellant is liable to be set aside. 11. Accordingly, we allow the writ appeal and setting aside the judgment passed by the learned Single Judge in W.P. (C) No. 11971 of 2006 direct that the order of dismissal passed against the petitioner-appellant is set aside. Since it was submitted that the petitioner-appellant has retired from service in the meantime, he shall be given with all service benefits as per his entitlement till the date of his retirement. 12. The writ appeal is disposed of accordingly. No order as to cost. I agree - S.K. Mishra. Order accordingly.