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2023 DIGILAW 592 (ALL)

Ankit Chaudhary v. State Of U. P.

2023-02-28

JASPREET SINGH

body2023
JUDGMENT : 1. Heard Shri Siddharth Khare, learned counsel for the petitioner and Shri Vikram Bahadur Yadav, learned Standing Counsel for the State-respondents. 2. Learned Standing Counsel has provided to the Court a copy of written instructions dated 23.02.2023, which is taken on record. 3. The petitioner had applied for selection to the post of Constable in pursuance of an advertisement issued in the month of January, 2018. The petitioner was allotted a roll number and he participated in the written examination where he was declared successful under the O.B.C. category. The petitioner was further subjected to document verification and physical efficiency test, which was followed by a medical examination and in each stage, the petitioner was successful and sent for training at Fatehpur and then to Mainpuri. Later the petitioner was posted at P.S. Chandpur, District Fatehpur and has been working since then. 4. In pursuance of the complaint filed raising allegations in respect of the selection so made, it was alleged that the petitioner had impersonated and he had not appeared in the examination. An F.I.R. was lodged on 08.06.2021. The petitioner thereupon was called by Recruitment Board where his photographs and biometrics were taken. The petitioner thereafter was enlarged on bail on 01.10.2021. The petitioner on the basis of the bail order sought his joining, which was refused and on 30.07.2021, an order was passed cancelling the selection of the petitioner. Being aggrieved, against the cancellation order dated 30.07.2021 and order dated 07.12.2021 whereby the petitioner was delisted in pursuance of the cancellation order the petitioner preferred a Writ-A No.19036 of 2021 (Ankit Chaudhary Vs. State of U.P. and Others), which was allowed by means of an order dated 11.04.2022 remitting the matter for fresh consideration after providing an opportunity of hearing to the petitioner including providing the evidence which was proposed to be used against the petitioner. 5. In compliance of the order passed by this Court dated 11.04.2022, a show-cause notice dated 02.08.2022 was issued to the petitioner alongwith a copy of the finger prints and photographs expert's report indicating that at the time when the petitioner appeared for the examination his biometrics did not match and therefore, it confirmed that the petitioner had resorted to impersonation. The petitioner furnished his reply on 07.09.2022. The petitioner furnished his reply on 07.09.2022. Alongwith his reply, the petitioner also furnished a report obtained from a private forensic investigating firm based on the same documents, which was enclosed with the show-cause notice and sent to the petitioner. The private report relied upon by the petitioner indicated that the biometric of the petitioner did not verify with the report submitted by the T.C.S., which was relied upon by the respondent authorities. Once again, the order dated 07.10.2022 was passed affirming the conclusion that the petitioner had resorted to impersonation and his representation was rejected, which is now under challenge before this Court in the instant petition. 6. Learned counsel for the petitioner has vehemently urged that the authorities have committed grave error in failing to hold a proper enquiry against the petitioner and without doing so, the services of the petitioner could not be dispensed with. The other submission of learned counsel for the petitioner is that the impugned order is based on the report submitted by the experts, however, the experts who had given its report was neither examined nor the petitioner was granted any opportunity to cross-examine such expert and in absence of the aforesaid, the petitioner has been substantially prejudiced and as such, there is the grave violation of principles of natural justice, accordingly, the order impugned suffers from vice of arbitrariness and is nothing but a colourable exercise of power by the authorities, hence, it is liable to be quashed. 7. Learned counsel for the petitioner has relied upon the decision of a Division Bench of this Court in Union of India Vs. Devendra Kumar Chaudhary; 2018 (9) ADJ 570 (DB). Having placed reliance upon the paragraph nos.68 and 89 of the aforesaid case, it is urged that an expert's opinion is nothing but another piece of evidence, which is in the nature of an opinion and unless the expert appears to prove his opinion it is not to be treated as a conclusive document and in the instant case the expert did not prove his opinion nor he was permitted to be cross examined hence the order impugned is liable to be set aside. 8. 8. Learned Standing Counsel while refuting the aforesaid submission has pointed out that since the petitioner had resorted to impersonation and it is not as if that there is any misconduct committed by the petitioner during his service for which he is required to be given a charge-sheet and a thorough enquiry is to be held rather the petitioner had resorted to unfair means for obtaining the service, hence, the contention raised by the learned counsel for the petitioner that in absence of a proper enquiry, the services of the petitioner cannot be dispensed with is not worthy of credence. 9. It is next contended by the learned Standing Counsel that in the instant case, the petitioner has been provided with the requisite documents including the expert's report and his reply has also been considered and it is only thereafter that the impugned order has been passed affirming the order of cancellation of the service as well as delisting the petitioner. It is also urged that there is neither any provision nor any requirement to grant any opportunity to cross-examine the expert, as on the basis of scientific evidence in the shape of the expert's report, a decision has been taken and petitioner cannot be permitted to raise objections regarding admissibility of the report and cross examination of the expert where he is guilty of use of unfair and illegal means. Thus for the aforesaid reason, it is urged that no error can be found in the order and this Court is not required to sit as an Appellate Authority over the decision taken by the authorities, hence, the writ petition deserves to be dismissed. 10. The Court has considered the rival submissions and also perused the material available on record. 11. Considering the first contention of the learned counsel for the petitioner, this Court finds that the petitioner while filing a Writ-A No.19036 of 2021 (Ankit Chaudhary Vs. State of U.P. and 3 Others) had raised an objection and had also taken a ground that as the petitioner was given an appointment letter on 15.05.2019, therefore, without a full-fledged departmental enquiry, the services of the petitioner cannot be dispensed with. This shall be evident from the bare perusal of the order passed in Writ-A No.19036 of 2021 dated 11.04.2022. This shall be evident from the bare perusal of the order passed in Writ-A No.19036 of 2021 dated 11.04.2022. The said contention did not find favour with the Court and the petition was allowed only on the ground that the order had been passed without affording an opportunity of hearing. For ready reference, the relevant portion of the order dated 11.04.2022 is being reproduced hereinafter:- "... Learned counsel for the petitioner states that the petitioner was employed and was given an appointment letter on 15.05.2019 and, therefore, a full-fledged Departmental Enquiry ought to have been undergone before his services were done away with. Learned counsel for the petitioner has stated that if the respondent No.2, before whom the complain with regard to impersonation was placed with regard to the petitioner, was of the opinion that the petitioner has in fact not appeared in the written examination and somebody else had appeared in the written examination then a full0fledged verification of his thumb impression should have been done after including the petitioner in the enquiry. He submits that if any expert had given a report with regard to the thumb impression which was taken at the time when the petitioner had appeared in the written examination then the petitioner ought to have been afforded an opportunity to rebut the report of the expert. Learned counsel for the petitioner submits that this could have been done by allowing the petitioner to produce his expert also..." "...In the instant case there is not even a whisper in the counter affidavit to show that any opportunity of hearing was given to the petitioner before passing of the impugned order. When the petitioner was called to give his photograph and the thumb impression it was not an opportunity to rebut the evidence, which was being used against the petitioner. Under such circumstances, the order impugned dated 30.07.2021 passed by the Chairman, U.P. Police Recruitment & Promotion Board, Lucknow and the order dated 7.12.2021 passed by the Superintendent of Police, Fatehpur cannot be sustained in the eyes of law and, therefore, are set aside. It shall, however, be open for the respondents to proceed against the petitioner after relying upon such evidence, which might be admissible in law. The petitioner shall definitely be given an opportunity to place his side of the case. It shall, however, be open for the respondents to proceed against the petitioner after relying upon such evidence, which might be admissible in law. The petitioner shall definitely be given an opportunity to place his side of the case. This exercise shall be completed within a period of two months from the presentation of a certified copy of this order. Needless to say that if any evidence is being used against the petitioner it shall always be supplied to the petitioner so that he has an opportunity to rebut the same. This writ petition is, accordingly, partly allowed." 12. From the above, it would indicate that though the question regarding a full-fledged departmental enquiry was raised but even while allowing the petition the Court had only given the liberty to the respondents to proceed against the petitioner after relying upon such evidence, which is admissible and giving an opportunity of hearing to the petitioner to complete the entire exercise within a period of two months. Thus, even though there may not have been a specific finding given by the Court on the issue raised by the petitioner regarding holding of a full-fledged departmental enquiry but the fact remains that in case, if an issue is raised and has not been allowed by the Court, then it amounts to refusal, even otherwise the issue once raised is not permitted to be raised at a subsequent stage between the same parties as it would be barred by the provisions of constructive res-judicata which though may not strictly be applicable to writ jurisdiction yet the principles can be borrowed and be made applicable. 13. There is another angle with which this issue can be seen and as already noticed above, there is no charge of misconduct relating to the discharge of duties by the petitioner for which a disciplinary enquiry is required to prove the said charge. On the contrary, the charge against the petitioner is to obtain the appointment on the basis of misrepresentation and impersonation. In this regard opportunity of hearing has been given to the petitioner and therefore, in the aforesaid circumstances there does not appear to be any illegality for not holding a departmental enquiry. On the contrary, the charge against the petitioner is to obtain the appointment on the basis of misrepresentation and impersonation. In this regard opportunity of hearing has been given to the petitioner and therefore, in the aforesaid circumstances there does not appear to be any illegality for not holding a departmental enquiry. Thus for the aforesaid reason, this Court does not find substance in the first submission of the learned counsel for the petitioner that without holding a detailed and full-fledged departmental enquiry, the services of the petitioner could not have been dispensed with. 14. Now, considering the other argument regarding the expert report, it would be seen that a show-cause notice was issued to the petitioner alongwith which the copy of the biometric report was also provided to him. The petitioner has filed his reply and has also annexed a copy of a report filed by a private investigating agency, wherein the report of the F.S.L. dated 01.08.2022 has been noticed and it has given its opinion that the Forensic Science Laboratory report as prepared by Narendra Kumar is baseless, non-scientific and without explanation. 15. It is the case of the petitioner that his report has not been taken note of, whereas the forensic report by Narendra Kumar has been made the basis. In this regard, it will first be relevant to notice the dictum of the Division Bench of this Court in the case of Devendra Kumar Chaudhary (supra), wherein a proper enquiry was held as indicated in paragraph 7 of the said report. Since a full-fledged departmental enquiry was conducted where the petitioner was given an opportunity to contest and to lead evidence as well as to cross-examine/rebut the evidence filed by the department. It is in the aforesaid context that the Division Bench held that an expert's report is only an opinion and unless the said expert appears before the enquiry authority to prove his opinion and an opportunity to cross-examine him is granted till then the said document cannot be treated to be a conclusive document upon which alone the charge of guilt can be fastened on a person. 16. In the instant case it would be seen that the petitioner had raised the aforesaid argument regarding holding of a full-fledged departmental enquiry, which has been turned down by the Court for the reasons noted above. 16. In the instant case it would be seen that the petitioner had raised the aforesaid argument regarding holding of a full-fledged departmental enquiry, which has been turned down by the Court for the reasons noted above. For the aforesaid reason, the dictum of Devendra Kumar Chaudhary (supra) cannot be borrowed or extended to the facts of the present case. It will be relevant to notice that in terms of the order passed by the Coordinate Bench of this Court dated 11.04.2022, the petitioner was required to be provided with the evidence with liberty to him to rebut the same, which has been complied with. It is taking note of the entire facts and circumstances that the objections, which were raised by the petitioner before the authorities has also been noticed and thereafter the impugned order dated 07.10.2022 has been passed. From the perusal of the impugned order, it cannot be said that the version as raised by the petitioner has not been noticed. The report of the expert has been considered and it has been found that the photographs and the biometrics of the petitioner was not verified and thus he alongwith other persons as mentioned in the report were delisted. 17. This Court in exercise of powers under Article 226, does not sit as a Court of appeal while exercising the power of judicial review, the Court undertakes an exercise confining to the decision making process and not the merits of a decision as it may be. Moreover, the findings and the conclusion, which has been arrived at are not so preposterous that no prudent person can come to such a conclusion nor it is a case pleaded that the impugned order is an outcome of ipse-dixit. 18. In view of the aforesaid, this Court does not find that the authorities have erred in passing the impugned order nor there has been any violation of principles of natural justice. Merely because the expert was not examined or the petitioner was not granted any opportunity to cross-examine will not vitiate the order for the reason that the authorities were not holding a full-fledged departmental enquiry, which obliged them to do so. 19. In view of the aforesaid, the Court does not find that there is any merit accordingly the writ petition is dismissed. Costs are made easy.