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2024 DIGILAW 518 (JHR)

Saraswati Devi v. Central Coal Field Ltd. through its Chairman, Ranchi

2024-05-17

S.N.PATHAK

body2024
JUDGMENT : S.N. PATHAK, J. Present writ petition has been filed by the petitioner challenging the order of punishment dated 04.03.2016, whereby the petitioner has been dismissed from services on the ground that at the time of seeking appointment he had furnished wrong information regarding his name, age and educational qualification. Petitioner has further prayed for quashing the order dated 06.08.2016, whereby the Appellate Authority has affirmed the order of punishment. 2. The facts of the case is that original writ petitioner was initially appointed under respondent-CCL on 19.09.1988 as CWL Gr.-III at Rajhara Colliery. Thereafter, he was promoted to higher posts and lastly, when he was working to the post of Assistant Loading Inspector, Rajhara Colliery, a charge-sheet dated 16.04.2015 was issued to him on the charge of giving false information regarding his name, age and father’s name, etc. at the time of seeking appointment. The said charge-sheet was issued on the basis of a report of the Circle Officer, Nawa Bazar, Palamau wherein it was revealed that petitioner had passed Praveshika Examination from “Hindi Vidyapith, Deoghar” in the name of “Bijay Kumar Pandey”. The original petitioner submitted detailed reply to the show-cause denying all the charges levelled against him. However, being not satisfied with the reply of the petitioner, the Disciplinary Authority had appointed an Enquiry Officer to enquire into the matter and submit his report. Thereafter, the Enquiry Officer conducted the enquiry and submitted his report holding the original petitioner guilty of the charges. 3. It is the further case of petitioner that after submissions of report by the Enquiry Officer, the Disciplinary Authority issued 2nd show-cause notice along with copy of enquiry report to the original petitioner seeking his reply on the same. Thereafter, the original petitioner submitted detailed reply to the 2nd show-cause however, the Disciplinary Authority without taking notice of the facts as stated in the reply of the original petitioner, passed the impugned order dated 04.06.2016, dismissing the original petitioner from services. Being aggrieved by the said order of punishment, original petitioner preferred Appeal, however, the Appellate Authority has affirmed the order of punishment and dismissed the Appeal preferred by the original petitioner. Hence, he has been constrained to knock the door of this Court challenging the aforesaid orders. 4. Mr. Being aggrieved by the said order of punishment, original petitioner preferred Appeal, however, the Appellate Authority has affirmed the order of punishment and dismissed the Appeal preferred by the original petitioner. Hence, he has been constrained to knock the door of this Court challenging the aforesaid orders. 4. Mr. Rajiv Ranjan, learned senior counsel appearing for the petitioner strenuously urges that the Disciplinary Authority had stated that husband of petitioner had deliberately given false information at the time of appointment with regard to his name and date of birth and as such, he was charge-sheeted and upon enquiry he has been found guilty of charges, which is absolutely not tenable against the same. Learned senior counsel further argues that the date of birth as mentioned in the service excerpts was recorded by the respondent-authorities as per the medical report of the Medical Board constituted by the Management and as such, after 26 years of unblemished service, the same be disputed and raising of the dispute is against the provisions of Section 115 of the Evidence Act, 1872. Learned senior counsel further argues that issue related to having two different names is also of not much relevance as because the same is of the year 2012-13 and various other documents i.e. Driving License, PAN Card, Rent Receipts have been submitted before the Enquiry Officer as well as the Disciplinary Authority, however, the respondents have not considered those documents while passing the impugned order. Learned senior counsel further argues that the departmental proceeding was initiated against the petitioner after 26 years of joining the service and as such, the same is barred by law of limitation. Learned senior counsel further argues that none of the documents based on which the Enquiry Officer has come to a finding that petitioner was guilty of the charges, have been proved in the departmental proceeding and as such, the departmental proceeding is not conducted in accordance with law. To buttress his arguments, learned senior counsel places heavy reliance on the judgment of Hon’ble Apex Court in case of Roop Singh Negi Vs. Punjab National Bank & Ors., reported in (2009) 2 SCC 570 and also the judgment delivered by this Court in case of Murari Bhagat Vs. State of Jharkhand & Ors. [2019 SCC Online Jhar. 2337]. 5. To buttress his arguments, learned senior counsel places heavy reliance on the judgment of Hon’ble Apex Court in case of Roop Singh Negi Vs. Punjab National Bank & Ors., reported in (2009) 2 SCC 570 and also the judgment delivered by this Court in case of Murari Bhagat Vs. State of Jharkhand & Ors. [2019 SCC Online Jhar. 2337]. 5. Learned Senior Counsel appearing for the petitioner further argues that any change of date of birth at the fag end of service is not permissible in service jurisprudence. Learned counsel submits that the said ratio has already been laid down by the Hon’ble Apex Court as well as in plethora of Judgments of this Court that there cannot be any change in the date of birth at the fag end of service. The said ratio is equally applicable for employer as well as employee. The learned counsel submits that as per the matriculation certificate, petitioner’s age was fully justified and only on the basis of report of Medical Board, the respondents cannot take the plea that wrong date has been mentioned and the petitioner has tried to dupe the management by mentioning wrong date of birth. 6. On the other hand, Mr. Amit Kumar Das, learned counsel appearing for the respondent-CCL submits that the Enquiry Officer while coming to the findings has taken into consideration all the documentary evidences produced before him and it is incorrect to say that the Enquiry Officer discarded any relevant documents. Learned counsel further argues that order of punishment as well as appellate order has been passed on proper appreciation of facts and documents on record and it cannot be said that there were procedural laches in the departmental proceeding. Learned counsel further argues that contention of petitioner that initiation of departmental proceeding after 26 years of continuous and unblemished service is not tenable in the eyes of law, is not acceptable since as soon as the Disciplinary Authority came to know about false information submitted by the petitioner, it was directed for initiation of departmental proceeding against him. In the said departmental proceeding principle of natural justice has been adhered to and the order of punishment is proportionate to the charges levelled against the husband of petitioner. Learned counsel further argues that the petitioner had alternative remedy under the Industrial Disputes Act and as such, the writ petition is fit to be dismissed outrightly.. In the said departmental proceeding principle of natural justice has been adhered to and the order of punishment is proportionate to the charges levelled against the husband of petitioner. Learned counsel further argues that the petitioner had alternative remedy under the Industrial Disputes Act and as such, the writ petition is fit to be dismissed outrightly.. 7. To strengthen his arguments, learned counsel for the respondents places heavy reliance on the following judgments: (I) State of Karnataka & Anr. Vs. N. Gangaraj [ (2020) 3 SCC 423 ]; (II) Hindustan Steel Works Construction Ltd. Vs. Employees Union [ (2005) 6 SCC 725 ]; (III) R. Vishwanatha Pillai Vs. State of Kerala [ (2004) 2 SCC 105 ]; & (IV) State of M.P. Vs. Akhilesh Jha [ (2021) 12 SCC 460 ]. 8. From the arguments advanced by the parties and documents brought on record, it can comfortably be inferred that no interference is warranted in the instant writ petition for the following facts and reasons. (i) Admittedly, petitioner was dismissed from the service in a regular departmental proceeding following the procedures of law. (ii) As per the records, in Praveshika Certificate, the date of birth has been mentioned as 31.01.1956 and age recorded in the service book is 18.09.1962. Thereafter, petitioner appeared in the matriculation examination in the year 1991 in which his date of birth was recorded as 27.01.1962. The variation in the date of birth clearly shows that petitioner was involved in fraudulent activities and concealed the actual date of birth. The driving license, PAN Card, Voter Card cannot be treated to be a valid document for considering the date of birth of an employee. (iii) Nothing has been brought on record to show that there was any procedural laches in the proceedings rather a full-fledged enquiry was conducted following the provisions of natural justice by extending the petitioner ample opportunity of being heard. Admittedly, when the order of punishment was affirmed upto the Appellate Authority, this Court refrains itself from interfering with the same. (iv) The Hon’ble Apex as well as this Court in plethora of judgments has held that when the order of punishment has been affirmed upto the Appellate Authority, the Hon’ble Court sitting under Article 226 of the Constitution of India should refrain itself from reappraising the evidences led in the departmental proceedings The Hon’ble Apex Court in the case of B.C. Chaturvedi Vs. Union of India & Ors., reported in (1995) 6 SCC 749 has held thus: “The High Court does not act as appellant authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to the decision of a case on merit as an appellate authority.” (ii) Insufficiency of materials cannot be a ground to annul the findings of the Enquiry Officer neither can a substituted view be taken in place of Enquiry officer/disciplinary authority in cases of departmental proceeding. The Hon’ble Apex Court in case of Apparel Export Promotion Council v. A.K. Chopra, reported in (1999) 1 SCC 759 has held as under: 16. The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to reappreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since the High Court does not sit as an appellate authority over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned Single Judge and the Division Bench of the High Court, it appears, ignored the well-settled principle that even though judicial review of administrative action must remain flexible and its dimension not closed, yet the court, in exercise of the power of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. Lord Hailsham in Chief Constable of the North Wales Police v. Evans1 observed: “The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized or enjoined by law to decide for itself, a conclusion which is correct in the eyes of the court.” 22. In the established facts and circumstances of this case, we have no hesitation to hold, at the outset, that both the learned Single Judge and the Division Bench of the High Court fell into patent error in interfering with the findings of fact recorded by the departmental authorities and interfering with the quantum of punishment, as if the High Court was sitting in appellate jurisdiction. From the judgments of the learned Single Judge as well as the Division Bench, it is quite obvious that the findings with regard to an “unbecoming act” committed by the respondent, as found by the departmental authorities, were not found fault with even on re-appreciation of evidence. The High Court did not find that the occurrence, as alleged by the complainant, had not taken place. The High Court did not find that the occurrence, as alleged by the complainant, had not taken place. Neither the learned Single Judge nor the Division Bench found that the findings recorded by the enquiry officer or the departmental appellate authority were either arbitrary or even perverse. As a matter of fact, the High Court found no fault whatsoever with the conduct of enquiry. The direction of the learned Single Judge to the effect that the respondent was not entitled to back wages and was to be posted outside the city for at least two years, which was upheld by the Division Bench, itself demonstrates that the High Court believed the complainant’s case fully for otherwise, neither the withholding of back wages nor a direction to post the respondent outside the city for at least two years was necessary. The High Court in our opinion fell in error in interfering with the punishment, which could be lawfully imposed by the departmental authorities on the respondent for his proven misconduct. To hold that since the respondent had not “actually molested” Miss X and that he had only “tried to molest” her and had “not managed” to make physical contact with her, the punishment of removal from service was not justified, was erroneous. The High Court should not have substituted its own discretion for that of the authority. What punishment was required to be imposed, in the facts and circumstances of the case, was a matter which fell exclusively within the jurisdiction of the competent authority and did not warrant any interference by the High Court. The entire approach of the High Court has been faulty. The impugned order of the High Court cannot be sustained on this ground alone. But there is another aspect of the case which is fundamental and goes to the root of the case and concerns the approach of the Court while dealing with cases of sexual harassment at the place of work of female employees. Further in case of Union of India & Ors. But there is another aspect of the case which is fundamental and goes to the root of the case and concerns the approach of the Court while dealing with cases of sexual harassment at the place of work of female employees. Further in case of Union of India & Ors. vs. P. Gunasekaran, reported in (2015) 2 SCC 610 , the Hon’ble Apex Court has clearly observed that, “High Court in exercise of its powers under Articles 226 and 227 cannot venture into appreciation of evidence or interfere with conclusions in enquiry proceedings if the same are conducted in accordance with law, or go into reliability/ adequacy of evidence, or interfere if there is some legal evidence on findings are based, or correct error of fact however grave it may be, or go into proportionality of punishment unless it shocks conscience of court”. The Hon’ble Apex Court in case of State of Bihar & Ors. Vs. Phulpari Kumari, reported in 2019 SCC Online 1563 has held thus: “Interference with orders passed pursuant to depart-mental enquiry can only be in case of ‘no evidence’ sufficiency of evidence not within realm of judicial re-view.” (v) Petitioner never submitted his matriculation certificate at the time of his initial appointment. Any certificate submitted after joining, cannot be considered for the purpose of recording the date of birth of an employee, which clearly shows that it was an afterthought and even no permission was taken by the petitioner for appearing in the matriculation examination. (vi) The petitioner has fraudulently obtained appointment by making false statement not only regarding the date of birth but also in his name as well as the genealogy certificate. (vii) When, it came to the notice of the respondent-authorities that petitioner has obtained appointment based on false certificates, a full-fledged enquiry was set-up and upon finding the petitioner guilty of the charges, he was rightly dismissed from the service. The Hon’ble Apex Court as well as this Court in plethora of judgments has observed that those who come by the back door have to go by the same door. The Hon’ble Apex Court in case of Renu Vs. District & Sessions Judge, reported in (2014) 14 SCC 50 has held thus: 17. Thus, the aforesaid decisions are an authority on prescribing the limitations while making appointment against public posts in terms of Articles 14 and 16 of the Constitution. The Hon’ble Apex Court in case of Renu Vs. District & Sessions Judge, reported in (2014) 14 SCC 50 has held thus: 17. Thus, the aforesaid decisions are an authority on prescribing the limitations while making appointment against public posts in terms of Articles 14 and 16 of the Constitution. What has been deprecated by this Court time and again is “back-door appointments or appointment dehors the rules”. 18. In case of this Court while dealing with the back-door entries in public appointment observed as under: “19. … The method of appointment is indeed not calculated to ensure that the meritorious alone will always be appointed or that the appointments made will not be on considerations other than merit. In the absence of guidelines, the appointments may be made purely on personal or political considerations, and be arbitrary. This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the back door have to go by the same door. … From the inception some engagements and contracts may be the product of the operation of the spoils system. There need be no legal anxiety to save them.” 9. As a sequitur to the aforesaid rules, guidelines and judicial pronouncement, this writ petition stands dismissed. Pending I.A., if any, also stands disposed of.