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2024 DIGILAW 1560 (GUJ)

A. K. Vaghela v. State Bank Of India

2024-07-15

VAIBHAVI D.NANAVATI

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JUDGMENT : 1. Heard learned advocate Ms. Mamta Vyas for the petitioner, learned advocate Ms. Dharmishta Raval for respondent No.2 and learned Assistant Government Pleader Ms. Suman Motla for respondent No.3 – State. 2. The brief facts of the present case are as under : 2.1 The petitioner was appointed as clerk-cum-cashier in the respondent Bank on 22.05.1981 and served with the Bank till the petitioner’s services were dismissed. The petitioner was dismissed from service by order dated 20.09.2009. The charge- sheet memo came to be issued on 30.08.2008 to the petitioner for holding a departmental inquiry into the charge inter-alia that at the time of appointment, the petitioner submitted a false caste certificate. The said charge-sheet was replied by the petitioner by letter dated 22.11.2008. An inquiry officer was appointed to hold departmental inquiry, who after holding the same, as per the report dated 12.03.2009 found the charge proved against the petitioner. (Annexure-C). 2.2 Respondent No.2 sent a copy of the above report to the petitioner by the letter dated 11.04.2009 calling upon the petitioner to submit his reply against inquiry report (Annexure- D). The petitioner submitted his reply to the said report on 23.04.2009 (Annexure-E). The show cause notice dated 15.06.2009 was issued to the petitioner against the penalty of “dismissal without notice” (Annexure-F). The petitioner replied to the said show cause notice on 14.07.2009. The petitioner was also granted opportunity of hearing on 17.07.2009 and on the said date, the petitioner submitted his further reply. On 20.07.2009, the petitioner came to be dismissed from service and the suspension period was treated as such. (Annexure-I). 3. Being aggrieved with the order dated 20.07.2009, the petitioner preferred appeal before the competent authority, which also came to be rejected by the order dated 18.12.2009. Being aggrieved with by the impugned orders passed by the competent authorities dated 20.07.2009 (Annexure-I) and order dated 18.12.2009 (Annexure-J). The petitioner herein constrained to approach this Court invoking under Article 226 of the Constitution of India and prayed for with the following reliefs. “20) The petitioner, therefore, prays that this Hon'ble Court may be pleased to issue a writ of mandamus or any other writ, direction or order: A) Quashing and setting aside the orders dt. 20.7.2009 and 18.12.2009 and directing the Respondents to reinstate the petitioner with all the consequential benefits. “20) The petitioner, therefore, prays that this Hon'ble Court may be pleased to issue a writ of mandamus or any other writ, direction or order: A) Quashing and setting aside the orders dt. 20.7.2009 and 18.12.2009 and directing the Respondents to reinstate the petitioner with all the consequential benefits. B) During the pendency and final disposal of this petition, the Respondents may be directed to reinstate the petitioner forthwith. C) To grant such and further relief as may be deemed fit and proper.” 4. Placing reliance on the aforesaid it is submitted that at the time of appointment of the petitioner, the petitioner produced caste certificate dated 29.01.1975 issued by the Samaja Kalyan Adhikari, Rajkot to the effect that the petitioner belongs to Vankar caste which is scheduled caste. (Annexure-A). It was submitted that the petitioner correctly stated in the application form that the petitioner belongs to scheduled caste and there is no charge that Vankar was not scheduled caste at the relevant point of time. It was stated that the petitioner has submitted school leaving certificate dated 02.06.1969 which also mentioned Vankar castes (Annexure-L). Such certificates were produced before the respondent authorities upon having been received by the petitioner from the respective authorities. It is submitted that the petitioner had not placed on record any false certificate. There was no charge that the petitioner had manipulated or managed any false certificate and in view thereof, the petitioner is not guilty of misconduct as stated in the charge sheet. It is submitted that the said documents/ certificates is held to be false either in any court proceedings or disciplinary proceedings, the same can not said to be false certificate. In disciplinary proceedings, the documents is required to be tendered in evidence and the author thereof has to be examined and he has to be crossed examined by the delinquent, as provided under Para-12A of the said Bipartite Memorandum of Settlement. Placing reliance on the same, it is submitted that the aforesaid procedure is given back. It is submitted that the respondent authority has placed reliance on the communication/certificate issued by the District Magistrate, Rajkot on whose evidence, the charged rested. The petitioner was entitled to cross examine the District Magistrate, Rajkot. Upon these enclosures, the respondent authority has held that the petitioner is guilty. It is submitted that the respondent authority has placed reliance on the communication/certificate issued by the District Magistrate, Rajkot on whose evidence, the charged rested. The petitioner was entitled to cross examine the District Magistrate, Rajkot. Upon these enclosures, the respondent authority has held that the petitioner is guilty. Unless those documents approved by examining the District Magistrate, who could have been cross examined by the petitioner, the certificates produced at the time of appointment can not held to be false. The bank or the District Magistrate has no power or authority or jurisdiction to declare the documents such as a caste certificate valid or invalid in the facts of the present case. It is submitted that as per resolution dated 20.07.2000 issued by the Government of Gujarat, such power has scrutiny committee. The said resolution is duly relied upon which is produced at Annexure- N. It is submitted that the penalty which is imposed upon the petitioner is also grossly disproportionate, wherein the penalty is imposed. The penalty of dismissal without notice as specified under Clause 6(A) of the above Settlement, is arbitrary, illegal and grossly disproportionate. Placing reliance of Clause 6(a), it is submitted that in dismissal order, disciplinary authority has stated that dismissal without is the “only” punishment which would meet the end of the justice. As per clause 6 of the above Settlement in case of gross misconduct there are (a) to (i) penalties provided i.e. nine penalties are provided, the dismissal from service being the maximum. The disciplinary authority has not applied his mind while imposing the punishment of dismissal from service was the “only” penalty meant for the petitioner and why not any lesser penalty. It is submitted that the petitioner herein has rendered 28 years of service without any complaint. The service which were rendered by the petitioner no loss is caused to the bank by the alleged false certificate. It is also not the case of the bank that due to the alleged false caste certificate, the respondent bank has lost confidence in him at the end of the service of the petitioner. Once the petitioner is found efficient in work for 28 years and having not lost confidence, no purpose of the bank would be served in dismissing him after 28 years. To substantiate the aforesaid submissions, learned advocate Ms. Once the petitioner is found efficient in work for 28 years and having not lost confidence, no purpose of the bank would be served in dismissing him after 28 years. To substantiate the aforesaid submissions, learned advocate Ms. Mamta Vyas for the petitioner placed reliance in the case of State of U.P. Vs. Sarojkumar Singh reported in 2010 (2) SCC 772 . Placing reliance on the aforesaid submission, learned advocate Ms. Vyas for the petitioner submits that the impugned orders passed by the respondents be quashed and set aside. In absence of any documents by virtue of which the caste certificate of the petitioner is held to be false. 5. Learned advocate Ms. Raval for the respondent bank at the outset submitted that this Court may not exercise extraordinary jurisdiction by invoking under Article 226 of the Constitution of India. It is submitted that the findings are concurrently against the petitioner herein and the findings of facts arrived by the competent authorities which not be interfered with. It is submitted that Government of India has issued orders regarding verification of claims of the candidates belonging to scheduled caste etc. has provided for the instructions being given to the District Magistrate regarding the veracity of caste certificate produced by the persons for securing jobs. Learned advocate Ms. Raval placed reliance of the said instructions, which are duly produced at Annexure R-I. It is submitted that the charge sheet as well as the documentary evidence produced in the inquiry proceedings completely proved that the petitioner has knowingly submitted false caste certificate at the time of joining in the bank as an employee. The charge sheet specifically stated that the petitioner resorted to misrepresentation of facts in connection with the petitioner employment in the bank. During the course of departmental inquiry, it was found that the certificate submitted by the petitioner was tampered with and instead of caste being known as Vanza Vankar, the caste was shown only Vankar. In view thereof, it is submitted that the petitioner committed misconducted squarely following under Clause 5(m) of the Memorandum of Settlement on Disciplinary Action procedure for workmen. It is submitted that the petitioner does not belong to scheduled caste and charges framed against the petitioner clearly shows that petitioner had intentionally getting employment with the respondent bank and in view thereof submitted a false caste certificate. It is submitted that the petitioner does not belong to scheduled caste and charges framed against the petitioner clearly shows that petitioner had intentionally getting employment with the respondent bank and in view thereof submitted a false caste certificate. It is submitted that it is denied that the author of the document has to be examined and all the persons who has submitted the documents should be examined and the opportunity of cross examination should be granted. It is submitted that the petitioner be given opportunity to cross examine the District Magistrate. However, there was no submission led by the petitioner or request made by the petitioner to cross examine or examine the District Magistrate that could have been said to be refused by the respondent authorities. The respondent has no legal right of examining or cross examining the District Magistrate and it is discretion of the inquiry officer to permit examination or cross examination. It is submitted that the certificate issued by the District Magistrate could be proved by pro-creation of document and it was not necessary for the respondent to examine the District Magistrate. It is submitted that the order passed by the Disciplinary Authority is reasoned order and the aforesaid order is passed taking into consideration the evidence on record and in view thereof the petitioner herein is imposed punishment under Para-22(C) of the Settlement in the order, is a proper and correct interpretation. Placing reliance on the aforesaid submissions, it is submitted that no interference is called for in the impugned orders passed by the respondent authorities. 6. Learned advocate Ms. Vyas for the petitioner in rejoinder submits that it is not prove that the petitioner placed on record false certificate. It is submitted that the petitioner has placed on record the certificate of his father and forefathers having the certificate of scheduled caste. It is reiterated by the learned advocate Ms. Vyas that the petitioner was issued certificate by competent authority i.e. Social Welfare Department dated 20.09.1975 and the same still continuous, until and unless the same is cancalled by the competent authority. It is also submitted that there are two differences between obtaining a false caste certificate and producing a false caste certificate. Since Vanja community is in the Vankar caste which is covered under scheduled caste category, the petitioner was issued the said certificate. It is also submitted that there are two differences between obtaining a false caste certificate and producing a false caste certificate. Since Vanja community is in the Vankar caste which is covered under scheduled caste category, the petitioner was issued the said certificate. It is also submitted that it is also not the case of the respondent authority that the aforesaid certificate is not issued by the Social Welfare department. It is also not the case of the respondent authority that the aforesaid certificate is cancelled by the authority. Placing reliance on the aforesaid, it is submitted that the petitioner never mislead the authority and has not placed on record any false certificate to get job. The shcool leaving certificate which is issued to the petitioner only shows that the date of birth whereas the caste certificate which is issued by the Social Welfare Department shows the caste. Therefore, the school leaving certificate has no connection with the charges framed against the petitioner with respect to the false caste certificate produced by the petitioner before the respondent. It is submitted that the Social Welfare department has issued the caste certificate after verifying the documents and issued the certificate long back on 20.09.1975. The said documents were also produced by the petitioner when the petitioner appeared for the examination pursuant to the advertisement for the recruitment and upon passing the examination after two years the petitioner got the job. At the time of appointment, all the documents were verified by the authority and only thereafter the petitioner was permitted to appear in the examination and having been granted the appointment work for 28 years and thereafter at the time, when the petitioner was to retire upon initiating disciplinary inquiry with respect to providing false caste certificate, the petitioner was dismissed from service. 7. Learned advocate Ms. Raval for the respondent-bank has also filed further affidavit pursuant to the order dated 24.07.2023 whereby by the said order, learned advocate for the respondent- bank was asked to place on record the entire inquiry papers along with written submission and the judgments. In due compliance of the said order dated 24.07.2023, Ms. Raval, learned advocate has placed on record the documents of the inquiry conducted in the petitioner’ case. ANALYSIS 8. Having heard learned advocates appearing for the respective parties, the following emerge. 8.1. In due compliance of the said order dated 24.07.2023, Ms. Raval, learned advocate has placed on record the documents of the inquiry conducted in the petitioner’ case. ANALYSIS 8. Having heard learned advocates appearing for the respective parties, the following emerge. 8.1. The petitioner was appointed as clerk-cum-cashier in the respondent Bank on 22.05.1981. This Court has perused the petitioner’s application form which is duly produced at Page-123. The petitioner’s appointment order dated 22.03.1980 is duly produced at page-124. School leaving certificate is produced by the petitioner at Page-129 dated 12.06.1969 issued by the Kamlibai High School, Jetpur. Caste certificate No. AC/74-75/315 dated 29.01.1975 at Page-130 issued by the Samaj Kalyan Adhikari, Rajkot. The undertaking given by the petitioner at Page- 131-133. For supplying any false information, it was open for the respondent- bank to seize the service of the petitioner. The petitioner was earlier serving in the State Bank of Saurasthra at Page-140. On 06.04.2004, the petitioner communicated to the respondent bank that the Mamlatdar had withdrawn the communication at Page-142. The petitioner informed by communication dated 21.10.2004 to the respondent with respect to the aforesaid communicated issued by the Mamlatdar. On 05.05.2007 the District Magistrate issued a communication, which in the opinion of this Court is germane for the adjudication of the dispute in question. It is apposite to refer to the said certificate (page 145). Confidential No.J.Arms F.N.17/2007 Office of District Magistrate Rajkot Date.05/04/2007 To, The Assistant General Manager, State Bank of Saurashtra, Circle Chowk Branch, Junagadh. Subject:- To inquire regarding O.B.C. Certificate submitted by Shri Ashvinkumar Vaghela s/o Keshavkant. Reference:- Your Office Letter No.JND/HDR/CON/2 dated 21/12/2006 and 21/02/2007. Upon examining Your Office Letters under Reference regarding the subject captioned above, following facts have been noticed. (1) Shri Ashvinkumar Keshavkant Vaghela obtained his School Leaving Certificate No.61 dated 24/05/1967 of Jetpur Taluka School No.2 where he received his primary education and caste is shown as “VANZA” therein. (Copy enclosed). (2) “VANZA” caste is also shown in School Leaving Certificate No.0190, Register No.13005 dated 02/06/1969 issued by Kamribai High School, Jetpur. (Copy enclosed). As mentioned above, Shri Ashvinkumar Keshavkant Vaghela “VANZA” is clearly of “VANZA” caste. For details of Your Office Letter dated 21/12/2006, upon seeking information from District Backward Classes Welfare Officer as stated in his letter dated 01/03/2007 (copy enclosed), only Vankar Caste is included in Scheduled Caste. (Copy enclosed). As mentioned above, Shri Ashvinkumar Keshavkant Vaghela “VANZA” is clearly of “VANZA” caste. For details of Your Office Letter dated 21/12/2006, upon seeking information from District Backward Classes Welfare Officer as stated in his letter dated 01/03/2007 (copy enclosed), only Vankar Caste is included in Scheduled Caste. “VANZA” or “VANZA VANKAR” caste are not included in Scheduled Caste and earlier also both of them (“VANZA” or “VANZA VANKAR”) were not included in Scheduled Caste, which may be requested to be taken into consideration. Encl: As above Sd/-illegible District Magistrate, Rajkot 8.2 While issuing such certificate, the District Magistrate has assessed the school leaving certificate produced by the petitioner herein (I) that Jetpur Taluka Shala No.2 school leaving certificate No.61 dated 25.04.1961 and (II) Kamlibai High School, Jetpur being certificate No. 0190 dated 02.06.1969 wherein in both the certificates, the caste of the petitioner states as Vanza. Reliance is also placed on the communication issued by the District Backward Kalyan Adhikari, Rajkot on 01.03.2007 and placing reliance on the same, it was opined that Vanza of Vanza Vankar community are not included in reserved category. The aforesaid view is noted. The aforesaid certificate was considered by the competent authority while passing the impugned orders. In the light of the aforesaid, it is apposite to refer to the following documents. (a) Annexure-I (page 10). ARTICLE OF CHARGE NO.1 Shri Ashwin Vaghela joined the Bank as clerk cum cashier at Bank's Jetpur branch on 22/05/1981. In connection with accepting employment in the Bank Shri Vaghela submitted a false Caste Certificate in which it was stated that he is belonging to a Scheduled Caste viz. Vankar. Further enquiries revealed that Shri Vaghela belongs to Vanza or Vanza Vankar caste which is not a Scheduled Caste. Thus, Shri Vaghela submitted a false certificate in connection with his employment in the Bank and committed gross misconduct in terms of Clause 5 (m) of the Bipartite Memorardum of Settlement on Disciplinary Action procedure for workmen. The documents considered by the competent authority which reads as under : page 12 (Annexure-A) (b) CHARGE SHEET SHRI ASHWIN K. VAGHELA, BHESAN BRANCH LIST OF DOCUMENTS: (1) Application for recruitment in clerical cadre in the SBI and its Associate Banks candidate's BIO DATA FORM dated 07/04/80. (2) Attestation form dated 22/05/1981. (3) Caste Certificate dated 29/01/1975 issued by Samaj Kalyan Adhikari attested by T.D.O. Jetpur. (2) Attestation form dated 22/05/1981. (3) Caste Certificate dated 29/01/1975 issued by Samaj Kalyan Adhikari attested by T.D.O. Jetpur. 4) True copy of school leaving certificate No.190 dated 02/06/1969 of the Kamribai High School, Jetpur duly attested by T.D.O. Jetpur (Name of school written by hand). (5) School leaving certificate No.000190 dated 02/06/1969 of The Kamribai High School, Jetpur duly attested by Branch Manager Bhesan alongwith branch's letter dated 14/11/2003 along with branch’s letter dated 14/11/2003. (6) Self declaration letter dated 06/04/2004 of Shri Vaghela stating that his caste was considered as Schedule Caste. (7) Letter No.J/Arms/F/No/17/2007 dated 05/05/2007 of Jilla Magistrate, Rajkot was 3 enclosures i.c. L.C. of Taluka Shala No.2 of Jetpur, The Kamribai High Schoc, Jetpur and letter of Jilla Pachhat Varga Kalyan Adhikari, Rajkot duly attested by Executive Magistrate, Jetpur. (C ) Page 13 (Annexure-B) CHARGE SHEET SHRI ASHWIN K. VAGHELA, BHESAN BRANCH We furnish the names of witnesses. (1) Shri M. J. Joshi, Branch Manager, Bhesan. (2) Shri D. G. Pandit, Chief Manager(General Banking), Region- F.V, Rajkot. (d) Annexure-B (Page 14) A. K. Vaghela, State Bank of India, (Unit: SBS), BHESAN Date: 22/11/2008 To, The Asstt. General Manager, Region R. V, State Bank of India (e-SBS), RAJKOT. FORWARDED THROUGH SBI (e-SBS), BHESAN. Respected Sir, MEMORANDUM OF CHARGE SHEET. With reference to the above cited subject and your letter No. R. IV/DEP/STAFF/94 dated 30/08/2008, I the undersigned Shri Ashwin. K. Vaghela, Special Assistant of Bhesan Branch plea as under; Sir, I am appointed in the Bank as Clerk-cum-Cashier at our Jetpur branch on 22/05/1981. Sir, at the time of my appointment I have produced School Leaving Certificate which was issued by Shri Kamaribai High School, Jetpur. As per School Leaving Certificate my caste is Vankar which falls under Schedule Caste by Gujarat State. Thus, my intension was not malafied but it was very clear. Despite this Certificate, Sir, if you feel any mistake made by me, I regret for that. I humbly request to kindly consider my case sympathetically and obliged. Thanking you. Yours faithfully, (A. K. VAGHELA). (e) (page -19) Sir, it is, therefore, beyond doubt that appointment of Shri A. K. Vaghela made on the basis of original certificate issued by Samaj Kalyan Adhikari, Rajya-Rajkot (ME/9), which neither challenged nor proved false by P. O. Thus ME/9 is original and true and Shri Vaghela has not submitted false caste certificate as charged. (e) (page -19) Sir, it is, therefore, beyond doubt that appointment of Shri A. K. Vaghela made on the basis of original certificate issued by Samaj Kalyan Adhikari, Rajya-Rajkot (ME/9), which neither challenged nor proved false by P. O. Thus ME/9 is original and true and Shri Vaghela has not submitted false caste certificate as charged. As far as ME/10/1 to 10/4 (which issued in the year 2007 and by the different authority), employee should not be treated at fault in case of different certificates issued by the different authority. ENQUIRY OFFICER'S FINDINGS: The Presenting Officer has presented the following documents, which were exhibited as Management Exhibits during the course of the enquiry proceedings. i) The CSE has joined the Bank (e-SBS) as clerk cum cashier at the Bank's Jetpur Branch on 12.05.1081. II) At the tim HVe of his appointment, he has had produced the Caste certificate dated 29.01.1975 (ME/9) issued by the Samaj Kalyan Adhikari, Rajkot. In the certificate the caste of the CSE is mentioned as "VANKAR" which is recognised as a Schedule Caste by Gujarat State. III) At that time, the CSE had also produced and submitted a hand written true copy of the School Leaving Certificate dated 02.06.1969 (ME/2/6) purportedly to have been issued by the Head Master, The Kamribal High School, Jetpur and attested by some authority whose stamp thereon is illegible. In this School Leaving Certificate also the caste of the CSE is mentioned in column No.2 as "VANKAR 2. When it was brought to the notice of the Bank that the caste certificate submitted by the CSE for his appointment purpose in the Bank is false as he belongs to "VANZA" or "VANZA VANKAR" caste which is not recognised as a Scheduled Caste, the CSE has approached the Mamlatdar, Bhesan Taluka on 15.10.2004 for a caste certificate and in turn the Mamlatdar, Bhesan Taluka has replied vide their letter No. ADM: VASHI: 409: 2004 dated 19.10.2004 (ME/8/2) that after verification of relative records, they are unable to issue such certificate as VANZA VANKAR caste is not included in Schedules Caste. 3. On the basis of ME/10 which is copy of letter No.J. Arms F.N. 17/2007 dated 05.05.2007 addressed to the AGM, SBS, Circle Chowk Branch. 3. On the basis of ME/10 which is copy of letter No.J. Arms F.N. 17/2007 dated 05.05.2007 addressed to the AGM, SBS, Circle Chowk Branch. Junagadh by the District Magistrate, it is evident that in copy of School Leaving Certificate No. 0190 obtained on 01.03.2007 from Kamribal High School, Jetpur (ME/10/2) the caste of the CSE is mentioned as VANZA. They have clarified that only VANKAR caste is included as Scheduled Caste and either VANZA or VANZA VANKAR Caste is not included even earlier and now as Scheduled Caste. 4. The CSE has also submitted true copy of his School Leaving Certificate No. 0190 (See ME/9) and true copy of Caste Certificate No. SC:74-75:315 dated 29.01.1975 issued by Samaj Kalyan Adhikari, Rajkot along with Candidate Bio-Data Form (ME/2/2) dated 07.04.1980 addressed to the Central Recruitment Board, Ahmedabad. On the basis of circumstantial evidences, it is established that the CSE has obtained the certificate issued by the Samaj Kalyan Adhikari, Rajkot on 29.01.1975 on the basis of false production of the copy of the School Leaving Certificate No. 0190 (See ME/9), where in his caste is mentioned as VANKAR, whereas in latest School Leaving Certificate obtained from the school record by the Bank on 01.03.2007, his caste is mentioned as VANZA which is not recognised as scheduled caste. 5. The DR contention by presenting two documents which are certificates dated 18.08.2008 Issued by 'SHRI VANZA GYANTI SAMAJ, JETPUR" stating that VANZA Caste is originally referred as VANKAR and known as VANKAR only and the deposition by the CSE during the course of the enquiry that they are originally from Mumbai and their caste was treated as VANKAR and hence treated as scheduled Caste are far away from the fact as School Authority has already stated in the School Leaving Certificate that the CSE belongs to VANZA Caste. 6. The DR's contention that the different authorities have issued different certificates and hence the CSE should not be treated at fault is not correct as the different certificates were issued by the different authorities on the basis of production of different information (i.e. false and true copies of School Leaving Certificates provided). 7. 6. The DR's contention that the different authorities have issued different certificates and hence the CSE should not be treated at fault is not correct as the different certificates were issued by the different authorities on the basis of production of different information (i.e. false and true copies of School Leaving Certificates provided). 7. In view of the foregoing, it is established that the CSE has not only produced false caste certificate, wherein it is mentioned that the CSE is caste by VANKAR and VANKAR caste is recognised as Scheduled Caste, issued by the Samaj Kalyan Adhikari, Rajkot on 29.01.1975 but also i) produced the false true copy of his School Leaving Certificate No.0190 wherein he himself has written his caste as VANKAR instead of VANZA ii) false information about his caste in his application forms (ME/1 & ME/2/2) to take advantage of reservation in getting employment in the Bank for which he was not eligible and entitled. Accordingly, it is proved that Shri A. K. Vaghela, the CSE has resorted to misrepresentation of facts in connection with his employment in the Bank. PO'S FINAL RMARKS On comparison of hand writing of Shri Vaghela mentioned in (1) application form (ME NO.1) (ii) candidate's bio-data form (ME No. 2/2 to 2/4) with a copy of School Leaving Certificate submitted by Shri Vaghela (ME No. 2/6) following facts are come on surface: (1) Formation of the word 'Keshavkant is similar at serial No. 7 in ME NO.2/2 with ME No. 2/6. (2) The peculiar formation of figures mentioned at 'birth date' in ME No. 2/2 with ME No. 2/6. (3) Formation of the word 'S.S.C.E.' is similar at serial No. 11 in ME No. 2/3 with ME No. 2/6. (4) The peculiar formation of figure-6 mentioned (i) at serial No. 2, 5, 7 in ME No. 1 and (ii) at serial No. 7, 8, 11 in ME No. 2/2 & 2/3 with serial No. 6, 9, 10, 11 jn ME. No. 2/6. (5) Style of hand writing is similar and cursive from serial No. 6 to 15 in ME No. 2/2 & 2/3 with ME No. 2/6. (6) Further, it is also mentioned in the certificates submitted by DR (DE No. 1 & 2) that Shri Vaghela is belongs to 'Vanza' caste, but due to they have chosen a business activity of 'VANAT', they are known as 'Vankar'. (6) Further, it is also mentioned in the certificates submitted by DR (DE No. 1 & 2) that Shri Vaghela is belongs to 'Vanza' caste, but due to they have chosen a business activity of 'VANAT', they are known as 'Vankar'. Therefore, certificate itself proved that Shri Vaghela is belongs to 'Vanza' caste. While referring a letter issued by District Magistrate, Rajkot, they have clearly stated on the strength of copy of school leaving certificates that Shri Vaghela is belongs to 'Vanza casta and neither 'Vanza' nor 'Vanza Vankar' caste is recognized as Scheduled Caste by the state government (ME No.10/1 to 10/3). Looking to the above fact and a copy of school leaving certificate submitted by District Magistrate, Rajkot (ME No. 10/2 & 10/3), It is proved that Shri Vaghela himself has prepared fake School Leaving Certificate and obtained Caste certificate from Government Authority (ME No.2/7) with malafide intention to get appointmen: in the Bank. Therefore, Article of charge No. 1 is treated as proved. DR'S FINAL REMARKS In his final comments, which has been stated by the Presenting Officer regarding formation of words, figures of handwritings should not be accepted as it is only on the basis of assumption and P. O. failed to prove it. P. O. has neither challenged nor been able to prove that caste certificate dated 29.01.1975, issued by Samaj Kalyan Adhikari, Rajya- Rajkot (ME/9), certifying that Shri A. K. Vaghela is belongs to Schedule Caste is false. P. O. has also net challenged the certificates issued by the authority of Vanza Community (DD-1 & Dd-2) that due to business activity of VANAT they are know as VANKAR. As deposed by the CSE, they originally belongs to Mumbai, which was governed by Mumbai State rules and at that time their caste was treated as VANKAR and treated as Scheduled Caste. Sir, It is, therefore, beyond doubt that appointment of Shri A. K. Vaghela made on the basis of original certificate issued by Samaj Kalyan Adhikari, Rajya-Rajkot (ME/9), which neither challenged nor proved false by P. O. Thus ME/9 is original and true and Shri Vaghela has not submitted false caste certificate as charged. As far as ME/1C/1 to 10/4 (which issued in the year 2007 and by the different authority), employee should not be treaten at fault in case of different certificates issued by the different authority. As far as ME/1C/1 to 10/4 (which issued in the year 2007 and by the different authority), employee should not be treaten at fault in case of different certificates issued by the different authority. I, therefore, request you to treat the Article of Charge as disprove. ENQUIRY OFFICER'S FINAL REMARKS: 1. I concur with what has been mentioned by the PC in his final remarks. On frequent and minute comparison of handwritings of the CSE in the application form (ME/2/1 and ME/2/2 to ME/2/5) with the copy of School Leaving Certificate (ME/2/6) submitted by the CSE at the time of appointment in the Bank, it is clearly transpired that both handwritings are of the CSE only. 2. On the basis of the circumstances, it is transpired that at material time, no photocopying facilities were available. There was a system to prepare a copy of any such certificate on the blank (only column printed) form which were available with any stationary seller. The other details were required to be written by hand. The circumstantial evidence indicates that the CSE might have taken disadvantage of that prevailing system for preparing copy of his School Leaving Certificate and while preparing a copy of his School Leaving Certificate for attestation, he might have intentionally written his caste as VANKAR instead of VANZA. The authority who has attested the copy of the School Leaving Certificate, might have not noticed the changes made in the column of Caste by the CSE in the copy presented for attestation. The CSE might have submitted such true copy, duly attested, of his School Leaving Certificate to the Samaj Kalyan Adhikari, Rajkot, for obtention of the Caste Certificate and the Samaj Kalyan Adhikari, Rajkot must have issued the Caste certificate No. SC:74-75:315 dated 29.01.1975. 9. It is apposite to refer the impugned order dated 20.07.2009 (page 31) ORDER OF THE DISCIPLINARY AUTHORITY ON THE DISCIPLINARY PROCEEDINGS INITIATED AGAINST STAFF CLERICAL SHRI A.K.VAGHELA, THE CHARGESHEETEC EMPLOYEE (CSE) VIDE CHARGESHEET BEARING NO. R-5/DPC/STAFF/94 DATED 30.08.2008 A charge sheet bearing No.R-5/DPC/STAFF/94 dated 30.08.200d was served on Shri Ashwin K Vaghela, for his serious act of misconduct committed by him while accepting the job in the Bank. R-5/DPC/STAFF/94 DATED 30.08.2008 A charge sheet bearing No.R-5/DPC/STAFF/94 dated 30.08.200d was served on Shri Ashwin K Vaghela, for his serious act of misconduct committed by him while accepting the job in the Bank. The Charge against him is that when he joined the Bank as Clerk- cum-Cashier at Bank's Jetpur branch on 22.05.1961 while accepting employment in the Bank he submitted a false Caste Certificate in which it was stated that he is belonging to a Scheduled Caste viz. Vankar, Further enquiries revealed that he belongs to Vanza or Vanza Vankar caste which is not a Scheduled Caste. Thus, Shri Vaghela submitted a false certificate in connection with his employment in the Bank arid committed gross misconduct in terms of Clause 5 (m) of the Bipartite Memorandum of Settlement of Disciplinary Action procedure for workmen. SUPPORTING IMPUTATIONS 1. Shri Ashwin Vaghela joined the Bank as clerk cum cashier at Bank's Jetpur branch on 22.05.1981. In connection with accepting employment in the Bank Shri Vaghela submitted a false Caste Certificate in which it was stated that he is belonging to a Scheduled Caste viz. Vankar. 2. At the time of his appointment Shri Vaghela had produced Caste certificate dated 29.01.1975 issued by Samaj Kalyan Adhikari, Rajkot. The certificate inentions the caste of Shri Vaghela as Vanikar which is recognized as a Scheduled Caste by Gujarat State. At the time of appointment Shri Vaghela had also produced a School Leaving Certificate dated 02.06.1969 issued by Head Master, The Kamribai High School, Jetpur which purportedly mentioned the caste of Shri Vaghela as Vankar. 3. It was brought to the notice of the Bank that Shri Vaghela had produced a false Caste Certificate and that he actually belonged to Vanza or Vanza Vanakar caste which is not recognised as a Scheduled Caste. In that connection Shri Vaghela had approached the Mamlatdar Office, Bhesan to obtain Caste Certificate on 15.10.2004. The Mamlatdar, Bhasan vide his letter dated 19.10.2004 advised Shri Vaghela that they have verified their record and that Vanza Vankar caste was not included in the Scheduled Castes. By his letter dated 21.10.2004 Shri Vaghela forwarded the said letter of the Mamlatdar, Bhesan. However, he stated that in the past his caste was included as a Scheduled Casle but present it was not included as a Scheduled Caste. By his letter dated 21.10.2004 Shri Vaghela forwarded the said letter of the Mamlatdar, Bhesan. However, he stated that in the past his caste was included as a Scheduled Casle but present it was not included as a Scheduled Caste. 4 Regional Office, Junagadh had referred the matter regarding the Caste Certificate submitted by Shri Vaghela at the time of his appointment to the District Magistrato. Rajkot vide their lotter No.JND:IIDR CON:2 dated 21.12.2006 followed by letter dated 21.02.2007. In reply to the letter of the Regional Office, the District Magistrate, Rajkc: vide his letter dated 05.05.2007 advised, inter alia, as under, 1) In the School Leaving Certificate No.61 dated 25.04.1967 issued by Jetpur Taluka Shala No.2, the caste of Shri Ashwin Vaghela has been mentioned as Vanza. ii) In the School Leaving Certificate No.0190, Register No.13005 dated 02.06.1959 issued by the Kamribai High School also the caste of Shri Vaghela has been mentioned as Vanza. The District Magistrate has stated in his letter that the District Pachhat Varga Kalyan Adhikari, Rajkot has, inter alia, advised vide his letter dated 01.03.2007 that Vanza or Vanza Vankar caste is not recognised as Scheduled Caste. In the pust also Vanza or Vanza Vankar caste was not recognised as a Scheduled Caste. The District Magistrate has enclosed with his letter attested copies of two School Leaving Certificates and the letter dated 01.03.2007 received from Distric: Pachhat Varga Kalvan Adhikari, Rajkot under reference. The contents of Para 3 and 4 above suggest that Shri Vaghela has allegedly resorted to misrepresentation of facts in connection with his employment in the Bank. To derive the truth into the matter, an inquiry was instituted on 05.12.2008, which was completed on 07.01.2009. Inquiry Officer has submitted his report of findings on 12.03.2009. A copy of which was also made available to him for representation, which he submitted on 24.04.2009. A show cause notice advising him. to show cause as to why following punishment as under specified in the settlement should not be imposed on him was served on him. "Dismissal without Notice" Shri Vaghela was given personal hearing on 17.07.2009 whereupon he submitted a written statement also dated 17.07.2009. In the course of personal hearing and in the written statement dated 17.07.2009 he has reiterated his claim that Vanza caste and Vankar caste both are one and the same caste. "Dismissal without Notice" Shri Vaghela was given personal hearing on 17.07.2009 whereupon he submitted a written statement also dated 17.07.2009. In the course of personal hearing and in the written statement dated 17.07.2009 he has reiterated his claim that Vanza caste and Vankar caste both are one and the same caste. Earlier when his family was residing in Mumbai between 1950 to 1957, their caste was considered Vankar caste. In departmental enquiry final view is taken by the Disciplinary Authority based on the evidences/depositions made by the witness produced by the prosecution as well as defense on the floor of the enquiry and findings of the Enquiry Officer (supported by evidences) and other extenuating circumstances put forth by the Charge Sheeted Employee (CSE) in his submissions to the Disciplinary Authority on the findings of the Enquiry Officer. Any extraneous remarks /irrelevant matters produced by the prosecution/defense will not be considered while taking final decision in the matter. In light of the foregoing, I have carefully perused the charge sheet, Presenting Otticus's written arguments, Defense representative's briol PO's exhibits, Defence Reprasentive's Exhibits, Enquiry Officer's Report and Charge Shooted Employee's submission on Enquiry Officer's Report and also I have gone through the entire inquiry records including the proceedings, evidences produced at the enquiry. arguments of both the sides along with reports of findings and as well as submission made by Shri A.K.Vaghela in his letter dated 14.07.2009 and also a letter given by him during his personal hearing on 17.07.2009 before my final conclusion in the matter. I find that the charge against Shri A.K.Vaghela is serious revealing gross misconduct. He has been provided with ample opportunity to defend the case against him. The Article of charge has been established at the enquiry instituted against the CSE I concur with the findings of the Enquiry Officer in toto. With regard to the allegations contained in the Article of charge and supporting imputations thereto observe as under : i) The CSE does not belong to Scheduled caste as is evident from attested copy of School Leaving Certificate no. 61 dated 25.04.1967 of Jetpur Taluka Shala no. 2 and allested copy of School Leaving Certificate no. 190 dated 02.06.1969 issued by Kamribai High School, Jetpur in which it is stated Chat the CSE belongr to Vanza community. Vanza community is not recognised as a Scheduled Caste. 61 dated 25.04.1967 of Jetpur Taluka Shala no. 2 and allested copy of School Leaving Certificate no. 190 dated 02.06.1969 issued by Kamribai High School, Jetpur in which it is stated Chat the CSE belongr to Vanza community. Vanza community is not recognised as a Scheduled Caste. ii) The School Leaving Certificate dated 02.06.1969 produced by shri Vaghela which was purportedly issued by the Head Master of Kamribai High School, Jetpur in which the caste of the CSE has been mentioned as Vankar and on the basis of which the CSE had obtained Caste Certificate was apparently tempered with. This is borne out by the fact that the in attested copy of the same School Leaving Certificate made available to the Bank by the District Magistrate, the caste of the CSE has been mentioned as Vanza Vankar community which is not a Scheduled Caste. iii) Vanza or Vanza Vankar community is not classified as Scheduled caste and that is categorically mentioned in the letter No. ADM:VASHI:409:2004 dated 19.10.2004 issued by Mamlatdar, Bhesan and letter No. J. Arms. F. N. 17/2007 dated 05.05.2007 issued by the District Magistrate. iv) It is clearly established that the CSE has obtained appointment in the Bank by falsely declaring himself as member of Scheduled Caste Shn Vaghela is guilty of Gross Misconduct of knowingly making a false statement in a document in connection with his employment in the Bank in terms of Clause 5 (m) of the memorandum of Settlement dated 10.04.2002. In the course of personal hearing he had reiterated his claim that the Vanza Caste was considered a Scheduled Caste and according to him that was the position obtaining in the undivided Mumbai State. In this connection I observe that the CSE had approached the Mamlatdar, Bhesan for a Caste certificate for Vanza community by his letter dated 15.10.2004. Thereafter he had sufficient time and opportunities to produce documentary evidence to substantiate his claim. The matter was raised by the defense in the course of the enquiry proceedings However, no substantive evidence has been brought before the enquiry Officer. Thus in the course of Personal Hearing, no new facts have been brought before me that can have effect on the quantum of punishment proposed in the Show Cause notice issued to the CSE. The matter was raised by the defense in the course of the enquiry proceedings However, no substantive evidence has been brought before the enquiry Officer. Thus in the course of Personal Hearing, no new facts have been brought before me that can have effect on the quantum of punishment proposed in the Show Cause notice issued to the CSE. Therefore, having agreed to the fact that allegation and four supporting imputations have been proved, I decide to impose following punishment on Shri A.K.Vaghela finally, which only according to me will meet the ends of justice. The punishment will be effective from the date of service of the order. "Dismissal Without Notice" as specified under clause No. 6(a) of Memorandum of settlement on Disciplinary action procedure for workmen on Shri Vaghela. Moreover, I also decide that the suspension period be treated as such i.e. he will not earn any increments during the period of suspension other than what has already been paid to you by way of subsistence allowance and suspension period will not be counted for any other purpose. This order be communicated to Shri Vaghela immediately. 10. Being aggrieved by the aforesaid order passed by the Disciplinary Authority dated 20.07.2009 as referred above, the petitioner preferred appeal dated 18.08.2009 before the Appellate Authority, which also came to be dismissed vide order 18.12.2009. The said order passed by the Appellate Authority reads thus; (Page 36, 37) para-3 3. Having carefully considered the appeal, I observe as under: (i) At the outset, my comments vis-à-vis the appellant's contentions are: Both the EO and the DA have considered his pleadings, but the arguments advanced by him/his Defence Representative (DR) could neither assail the evidence produced by the Presenting Officer (PO) nor cause any dent in the prosecution's case. Factum such as blotless track-record, etc. would not weigh in his favour inasmuch as the gravity of the misconducts established against him out-weighs such aspects. No such "mercy petition" said to have been rejected by the DA Is on record. 15 days' time was granted to him to show cause as to why the penalty of "dismissal" should not be inflicted on him (not for producing additional proofs, if any, as claimed by him). Shri Vaghela replied to the SCN on 14.7.2009 and also attended the personal hearing on 17.7.2009. 15 days' time was granted to him to show cause as to why the penalty of "dismissal" should not be inflicted on him (not for producing additional proofs, if any, as claimed by him). Shri Vaghela replied to the SCN on 14.7.2009 and also attended the personal hearing on 17.7.2009. Neither in his reply to the SCN nor during the personal hearing did he express his intention to produce any additional proof. The DA was, therefore, fully justified in passing the order on 20.7.2009. Certified true copy of the SLC issued by the School Authorities has not only revealed that he belonged to "Vanza" and not "Vankar" caste but also falsified the SLC produced by him while seeking employment in the Bank. His argument of "slip of pen" in the SLC (produced by him) issued by School Authorities, who are generally very meticulous while preparing and issuing such documents as they are fully aware of its importance, value and consequences, Is ridiculous. If it be so, nothing prevented(s) him from applying to the Competent Authority with all relevant documents seeking issuance of a fresh Caste Certificate vice beating about the bush. In this context, the DA's observations as under are noteworthy: "In the course of personal hearing he had reiterated his claim that the Vanza Caste was considered a Sclieduled Caste and according to him that was the position obtaining in the undivided Mumbai State. In this connection i observe that the CSE had approached the Mamlatdar, Bhesan for a Caste certificate for Vanza community by his letter dated 15.10.2004. Thereafter he had sufficient time and opportunities to produce documentary evidence to substantiate his claim. The matter was raised by the defense in the course of the enquiry proceedings. However, no substantive evidence has been brought before the enquiry Officer. Thus in the course of Personal Hearing, no new facts have been brought before me that can have effect on the quantum of purishment proposed in the Show Cause notice Issued to the CSE." * It has been proved beyond doubt on the strength of irrefutable documentary evidence that the Caste Certificates submitted by him at the time of his appointment in the Bank are false. (ii) Photostats of papers submitted by him in the name of "additional proof" in support of his claim, even if considered at this late stage, would neither come to his rescue nor serve any purpose because the unimpeachable documentary evidence produced on the floor of the enquiry has established beyond any doubt the fact-in-issue' Le. the caste status of the appellant. (iii) The District Magistrate, Rajkot, has, vide his letter dated 5.5.2007, Informed that the Caste Vanza or Vanzavankar is not notified as Scheduled Caste by the Government, and therefore, Shri Vaghela does not belong to the Scheduled Caste. The appellant has not challenged the correctness of the report given by the District Magistrate, Rajkot, in any couit of law. (iv) The imputations against the appellant have been proved on the basis of unassaliable evidence. Hence the EO and the DA have rightly held the allegations and the charge of gross misconduct based thereon as proved. (v) A bank employee is required to exercise higher standards of honesty and integrity Inasmuch as he deals with money of the depositors and the customers. Good conduct and discipline are inseparable from the functioning of every employee of the Bank. Bank employees hold positions of trust where honesty and integrity are Inbuilt requirements of functioning and therefore, their matters require to be dealt with firmly with firm hands and not leniently, and in such cases, there is no place for generosity or misplaced sympathy. (vi) The charge against Shri Vaghela was very serious. His proven acts of gross misconduct fraught with mens rea had resulted in loss of faith in him. Hence It was incumbent on the authorities concerned to deal with his case in the manner expected of them in the interests of Justice and fair play in order to ensure against miscarriage of justice. (vii) The Hon'ble Supreme Court of India has in a number of judgements (including in matters concerning, bank employees) held that if an employee claims employment on the basis of false/bogus caste certificate then he is not entitled to continue in the employment and deserves to be dismissed from service. (viii) The penalty ibid has been inilicted by the DA after due compliance with the provisions of the Awards and Bipartite Settlements and the principles of natural justice. (viii) The penalty ibid has been inilicted by the DA after due compliance with the provisions of the Awards and Bipartite Settlements and the principles of natural justice. This being a case of loss of confidence', the penalty of "dismissal without notice" is considered appropriate and proportionate arid the procedure adopted just, fair and equitable. 4. Given the foregoing, I do not consider it expedient to interfere with the order of penalty passed by the DA, which, I am fully convinced, is not only Impeccable on facts but also unambiguously supported by unussailable reasons in support of the conclusions reached. No other valid ground has been raised by the appellant, which requires to be commented upon. I am, therefore, not Inclined to modify the penalty inflicted by the DA vire Order dated 20.7.2009. I order accordingly. 5. This order be communicated to Shri A.K. Vaghela, the appellant, and a copy hereof be placed in his service file. 11. Having heard learned advocates appearing for the respective parties, having perused the documents on record and having considered the orders passed by the competent authority, it emerges that while passing the impugned order, the respondent authority has arrived at the conclusion that the petitioner herein has produced false caste certificate which is also forming part of the record and is produced at Page-130. The respondent authority has arrived at the conclusion placing reliance on the report of the Inquiry Officer dated 12.03.2009, having compared the hand-writing of the petitioner herein in the application form and bio-data form with school leaving certificate submitted by the petitioner and accepted without taking any opinion of hand-writing expert that the petitioner has prepared fake school leaving certificate and obtained caste certificate with mala-fide intention to get appointment in the bank. While passing the impugned order, the respondent authority has relied on the letter issued by the District Magistrate, Rajkot wherein reliance is placed on the school leaving certificate that the petitioner belongs to Vanza caste not Vanza Vankar as recognized scheduled caste by the State Government. 12. The competent authority while arriving the aforesaid conclusion of dismissal of service of the petitioner had relied upon the opinion of the District Magistrate, wherein it is opined that the petitioner does not belong to Vankar community and belongs to Vanza community based on the same report that was called for from the Social Welfare Adhikari dated 01.03.2007. 12. The competent authority while arriving the aforesaid conclusion of dismissal of service of the petitioner had relied upon the opinion of the District Magistrate, wherein it is opined that the petitioner does not belong to Vankar community and belongs to Vanza community based on the same report that was called for from the Social Welfare Adhikari dated 01.03.2007. Once again on perusal of the charge that was framed against the petitioner that the petitioner produced fake caste certificate. However, the same is not proved. In fact, the respondent authority has held that the caste certificate was false certificate, placing reliance on the school leaving certificate. 13. In view thereof, it is also apposite to refer Clause 5(m) of the Bipartite Memorandum of Settlement on Disciplinary Action procedure for workmen, which reads as under :- “5(m) Knowingly making a false statement in any document pertaining to or in connection with his employment in the bank.” 14. The aforesaid clause provides that the petitioner knowingly making a false statement in any document pertaining to or in connection with his employment in the bank resultantly commits gross misconduct. It is not proved that the petitioner has produced a false caste certificate in connection with the employment in the bank. The caste certificate is duly issued on 29.07.1975 by the Samaj Kalyan Adhikari, Rajkot, which is competent authority to issue the caste certificate, wherein it is provided that the petitioner belongs to Vankar castes. 15. Learned advocate Ms. Raval appearing for respondent relied on the judgment of the Hon’ble Apex Court in the case of “State of Karnataka and another Vs. N. Gangaraj” reported in (2020) 3 SCC 423 and submitted that the scope of interference under Article 226 should be minimum. Ms. Raval also relied on the judgement of the Hon’ble Apex Court in the case of “State of Orissa and another Vs. Bibhisan Kankar” reported in (2017) 8 SCC 608 , wherein the scrutiny committee had held that the appropriate action was required to be taken. In the present case, there is no evidence to show that the respondent has obtained false caste certificate to procure the employment. Ms. Raval also relied on the judgment of the Hon’ble Apex Court in the case of “Ex Sig Man Kanhaiya Kumar Vs. Union of India and others” reported in (2018) 14 SCC 279 . In the present case, there is no evidence to show that the respondent has obtained false caste certificate to procure the employment. Ms. Raval also relied on the judgment of the Hon’ble Apex Court in the case of “Ex Sig Man Kanhaiya Kumar Vs. Union of India and others” reported in (2018) 14 SCC 279 . In the said case, the appellant admitted that he was enrolled in army on basis of fake relationship certificate produced by him at time of appointment. 16. In the facts of the present case, the respondent authority has not initiated any action to scrutinize the sanctity of the caste certificate by referring to the scrutiny committee. 17. The aforesaid ratio is not applicable in the facts of the present case, wherein the respondent authority while passing the impugned order has failed to prove the caste certificate as false which was in question while framing charge. 18. In view of the aforesaid facts of the present case, this Court finds that this is a fit case to exercise extraordinary jurisdiction under Article 226 of the Constitution of India. The charge framed by the respondent authority against the petitioner herein of submitting false caste certificate for appointment in the bank is not proved and in view thereof imposing punishment on the petitioner for gross misconduct in terms of Clause 5 (m) of the Bipartite Memorandum of Settlement on Disciplinary Action procedure for workmen is quashed and set aside. The impugned action taken by the respondent authority is required to be set aside. 19. For the foregoing reasons, the present petition is allowed. 19.1 The impugned orders dated 20.07.2009 and 18.12.2009 are hereby quashed and set aside. 19.3 During the course of hearing, it is submitted that the petitioner herein has superannuated from the service in view thereof the respondent to grant consequential benefits within a period of four months from the date of receipt of this order. Rule is made absolute to the aforesaid extent.