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2020 DIGILAW 67 (TRI)

Biswanath Debbarma v. Union of India

2020-05-22

ARINDAM LODH

body2020
JUDGMENT Arindam Lodh, J. - Heard Mr. S. Bhattacharjee, learned counsel appearing for the petitioner as well as Mr. Biswanath Majumder, learned CGC appearing for the respondents. 2. The brief facts of the case, are that, the petitioner was appointed as Constable under the respondents in the year 1994. The petitioner was/is a member of Tribal Community recognized in the State of Tripura. The petitioner was removed from his service in the year 2009 by the Revisional Authority vide order dated 29.01.2010 on the allegation that at the time of entry into service, he had produced a forged ST certificate. The background was that, in the year 2007 there was an inquiry about the verification of the documents, the petitioner had submitted at the time of his entry into service in the year 1994. The competent authority of the State i.e. Sub Divisional Magistrate, Sadar, Agartala had informed the respondents that no such certificate was issued in favour of the petitioner. Simultaneously, the competent authority had made a request to the respondents to ask the petitioner to surrender the ST certificate, which he had produced at the time of his entry into service and to procure a fresh ST certificate by way of submitting fresh application. Accordingly, the petitioner had surrendered the said ST certificate dated 19.03.1991. Thereafter, the SDM, Sadar, who is the competent authority had issued a fresh certificate dated 07.05.2007 declaring the petitioner as a member of Scheduled Tribe Community. After receipt of the said fresh ST certificate, the petitioner had produced the same before the respondents. Thereafter, the respondents herein again verified the said ST certificate when the SDM, Sadar had confirmed the genuinity of the said certificate dated 07.05.2007. Thereafter, a departmental inquiry was initiated against the petitioner by the respondents. 3. During the proceeding of that departmental inquiry, the petitioner has categorically stated that he had no knowledge of that certificate which was obtained by his father. He has also stated that they belonged to tribal community staying in the rural area of the State of Tripura and they are very innocent. 4. It was true that the petitioner belonged to tribal community recognized by State of Tripura and it was proved by issuance of a fresh certificate by the competent authority. After completion of the departmental inquiry, the disciplinary authority imposed punishment. 4. It was true that the petitioner belonged to tribal community recognized by State of Tripura and it was proved by issuance of a fresh certificate by the competent authority. After completion of the departmental inquiry, the disciplinary authority imposed punishment. In the final order dated 17.07.2009, the punishment, as declared by the respondents, is as under: "In view of the above fact the Higher Authority has agreed to the enquiry report submitted by the Enquiring Authority. Accused battalion member at the time of entry into service as Constable he submitted fake ST certificate issued vide No. 1695 F.X 11-2/SDO/SDR/TW/91-92 dated 24.08.1991, although he was really belonged to ST community. The accused battalion member has committed serious offence by submitting fake ST certificate at the time of entry into service." 5. Subsequently, all on a sudden, the petitioner had received a show-cause notice issued by the Revisional Authority, asking him to show-cause as to why the aforesaid punishment of withholding of next increment would not be enhanced and as to why he should not be removed from service. 6. Having received that show-cause notice dated 20.08.2009, the petitioner had submitted a representation on 07.09.2009 but, the Revisional Authority by an order dated 06.10.2009 had rejected the representation of the petitioner and removed him from service. Having dis-satisfied with the said order, the petitioner had preferred an appeal before the appellate authority of the respondents on 29.01.2010. The appellate authority after considering the representation had maintained the order of removal passed by the Revisional Authority. Thereafter, the petitioner had submitted an application seeking some documents but, they were not given. The petitioner had again applied through RTI. Thereafter, the department had supplied those documents, as sought for by the petitioner. After receipt of those documents, without any delay, the petitioner had preferred the instant writ petition. 7. At this juncture, I have taken note of Swamy's Complete Manual on Establishment and Administration for Central Government Offices. Under Rule 4 of Chapter 26, which deals with 'Verification of Claims of Scheduled Castes and Scheduled Tribes'. Rule 4 reads as under:- "4. After receipt of those documents, without any delay, the petitioner had preferred the instant writ petition. 7. At this juncture, I have taken note of Swamy's Complete Manual on Establishment and Administration for Central Government Offices. Under Rule 4 of Chapter 26, which deals with 'Verification of Claims of Scheduled Castes and Scheduled Tribes'. Rule 4 reads as under:- "4. Provisional appointment subject to verification of caste status: The appointing authorities should, in the offer of appointment to the candidates claiming to be belonging to SC/ST, include a clause to the effect that the appointment is provisional and is subject to verification of the Caste/Tribe Certificate through proper channels and that if the claim to belong to SC/ST is found to be false, the services will be terminated forthwith without assigning any reason and without prejudice to such further action that may be taken under the Indian Penal code for production of false certificate". [G.I. Dept. of Per.& Trg. O.M.No. 36012/6/88-Estt(SCT)(SRD.III) dated, the 24th April, 1990] 8. The memorandum was issued by the Government of India on 24th April, 1992, that all appointments would be provisional and subject to verification of the caste certificate. It implies that immediately after issuance of such appointment letter, the appointing authority shall investigate the caste certificate to verify the genuinity of the same. The petitioner was appointed in the year 1994 which obligated that his certificate ought to have been verified within a reasonable period of time. The object of issuance of memorandum dated 24.04.1992 is toprevent unscrupulous person to take the benefit of reservation in employment for the members belonging to Schedule Tribe and Schedule Caste community for entry into the service. Although, the appointment of the petitioner was in the year 1994, but, till 2007 the respondents did not do anything and by that time, the petitioner had served the respondents and substantial period of his life, he already devoted to serve the respondents. Suddenly, in the year 2007, the respondents woke up from slumber and wanted to verify the caste certificate of the petitioner. They verified and it was found to be fake. Inquiry was held. The petitioner was punished by the disciplinary authority, as aforestated, but, the Revisional authority had thought that the punishment inflicted by the disciplinary authority was not in accordance with Rules and had removed the petitioner from his service. 9. They verified and it was found to be fake. Inquiry was held. The petitioner was punished by the disciplinary authority, as aforestated, but, the Revisional authority had thought that the punishment inflicted by the disciplinary authority was not in accordance with Rules and had removed the petitioner from his service. 9. In my opinion, the removal of the petitioner from service is dis-proportionate to the mis-conduct the petitioner has committed. In my further opinion, the punishment imposed by the disciplinary authority was appropriate and adequate. The reason is that, the petitioner was recruited in the year 1994 at a very young age. During the departmental inquiry, he has specifically and categorically stated that it was not he, but, his father who had obtained the caste certificate. Furthermore, there is no dispute that the petitioner belongs to a tribal community. He has no idea as to how his father has procured the said certificate in the year 1991. On good faith, the petitioner had produced that certificate as procured by his father. Having come to learn that the certificate was fake, he applied for a fresh one, as aforestated and, the competent authority i.e. SDM, Sadar, after proper verification had issued a fresh certificate declaring the petitioner as a member of Tribal community. In that event, in my considered view, the removal of the petitioner from his service is dis-proportionate and harsh and shocks the conscience of this court. The respondents ought to have taken action in the year 1994 itself against the petitioner when he was recruited into service as Constable under them but, they did not do so. By the elapse of time, the petitioner has lost all opportunity to get employment under any other organization. He has also lost the valuable years of his life. 10. It is revealed that the petitioner had served the respondents for more than 13 years. In order to avoid any controversy, I direct that the petitioner shall be entitled for notional continuity of service till the date of completion of minimum service required to make him eligible for pension. However, the petitioner shall not be entitled to payment of salary and allowances for that period. It is made clear that the petitioner will be entitled to other benefits like gratuity and other allowances in accordance with Rules. 11. However, the petitioner shall not be entitled to payment of salary and allowances for that period. It is made clear that the petitioner will be entitled to other benefits like gratuity and other allowances in accordance with Rules. 11. In the result, the respondents are directed to treat the petitioner on notional continuity of his service till the date of completion of minimum service required to make him eligible for pension. The entire process, as directed above, shall be completed within a period of 3(three) months from the date of receipt of the copy of this order. 12. Accordingly, the present writ petition stands allowed in the above terms.