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2025 DIGILAW 43 (HP)

Kanshi Ram v. State of Himachal Pradesh

2025-01-04

RANJAN SHARMA

body2025
JUDGMENT : Ranjan Sharma, J. Petitioner, Kanshi Ram, Beldar [Class-IV] having been removed from service by way of penalty, has come up before this Court seeking the following reliefs :- “(i) To quash and set aside the impugned action on part of respondent by not releasing/granting the service benefit rendered by the applicant w.e.f. 1976 and impugned order dated 30.10.2010 Annexure A-7 whereby the major penalty of removal from service under Rule 11 (vii)of C.C.A. Rules 1965 w.e.f. 30.10.2010. (ii) That the respondent’s be directed to grant the benefit of in respect of pension, gratuity, leave in cashment arising out ofthe service rendered by the applicant with interest, fixation of pay, etc.” FACTUAL MATRIX: 2. Petitioner, Kanshi Ram, was engaged as Beldar [Class-IV] on Daily Waged Basis and as per applicable policy, the petitioner was conferred work charged status as Beldar in pay scale of Rs.2520- 4140 by Executive Engineer, Arki Division, HPPWD, Arki, on 24.05.1999, Annexure A-1. While working as Beldar on work charged basis, the Department as well as State Vigilance and Anti-Corruption Bureau, received a complaint dated 20.05.2009 from one Lachman Singh, stating therein that the actual date of birth of petitioner is in the year 1936 whereas, a false date of birth certificate showing his date of birth as 01.09.1952 was submitted at the time of joining service. 3. Based on the complaint dated 20.05.2009, submitted by Laxman Singh, an FIR No.93 dated 22.09.2009 was registered under Sections 420, 467, 468, 471 of the Indian Penal Code with Police Station, Arki, District Solan [HP] and the proceedings originating from FIR continued its own way in accordance with law. In addition to above criminal proceedings, the Executive Engineer, Arki Division, initiated departmental proceedings against the petitioner, in which Assistant Engineer, Arki Sub-Division, was appointed as Inquiry Officer on 08.03.2010, where-after, Memorandum of Charges was duly enquired and the Inquiry Officer submitted the Inquiry Report dated 28.08.2010, holding the Charge of suppressing true date of birth and furnishing false date of birth with differential of sixteen years was proved. After accepting Inquiry Report, the Disciplinary Authority passed an order dated 30.10.2010, Annexure A-7, imposing penalty of removal from service, against the petitioner. STAND OF RESPONDENTS IN REPLY: 4. Reply-affidavit details the factual matrix of the case that the petitioner was initially engaged as Beldar on Daily Waged Basis in 1976 and was regularized on 24.05.1999. After accepting Inquiry Report, the Disciplinary Authority passed an order dated 30.10.2010, Annexure A-7, imposing penalty of removal from service, against the petitioner. STAND OF RESPONDENTS IN REPLY: 4. Reply-affidavit details the factual matrix of the case that the petitioner was initially engaged as Beldar on Daily Waged Basis in 1976 and was regularized on 24.05.1999. Reply-affidavit indicates that at the time of joining on regular/work charged basis, the petitioner has furnished incorrect date of birth certificate, showing his date of birth as 01.09.1952. It is further mentioned that one Shri Lachman Singh, son of Shri Paras Ram, submitted a complaint to Department as well as to State Vigilance and Anti-Corruption Bureau with averments that the petitioner has furnished incorrect date of birth [01.09.1952], whereas, true date of birth of petitioner, Kanshi Ram was 1936. It is averred that based on allegations of incorrect furnishing of date of birth certificate, an FIR No.93 dated 22.09.2009 under Sections 420, 467, 468, 471 of the Indian Penal Code was registered and Departmental Proceedings were also initiated, whereby, the Memorandum of Charges was issued and those charges were duly enquired into by the Inquiry Officer, after associating the petitioner and in the inquiry report, charges were proved against the petitioner. It is averred that based on the findings in Inquiry Report, major penalty of removal from service was imposed against the petitioner on 30.10.2010, Annexure A-7. Stand of Respondents, in Paras 6(a) and 6(b) of Reply on Merits, read as under:- “Para-6(a) That para-6(a) of the petition relating to engagement of the petitioner and his regularization in the year, 1999 are matter of record. The registration of criminal case against the petitioner is also matter of record. The initiation of inquiry against the petitioner and passing of order dated 30.10.2010 is also matter of record. Rest of the averments as made under the para are not correct, so denied. The petitioner was afforded due opportunity of being heard during the inquiry held by the Inquiry Officer and he has been heard in person. It is absolutely incorrect that the inquiry was conducted without giving an opportunity of being heard. The Inquiry Officer has given due opportunity of being heard to the petitioner and concluded the inquiry in accordance with the procedure prescribed under the law. It is absolutely incorrect that the inquiry was conducted without giving an opportunity of being heard. The Inquiry Officer has given due opportunity of being heard to the petitioner and concluded the inquiry in accordance with the procedure prescribed under the law. Since, the petitioner has been removed from service, therefore, he is not entitled to any benefit of the service under the rules. The petitioner cannot be permitted to take benefit of his seniority especially keeping in view, the fact that there is a difference of 16 years in the certificates of age produced by the petitioner and confirmed by the respondents. The petitioner cannot be said to be under any mistakes in view of the huge differences of age in two certificates. It is again denied that no opportunity was given to the petitioner and there was any violation of the natural justice. The said contention of the petitioner is contrary to the records. The petitioner is not entitled to pension and other consequential benefits arising out of the service, in view of the removal of the petitioner from service by the respondents upon imposition of major penalty. The allegations in the complaint have been verified by the respondents and the same having been found correct, the action was accordingly taken by the respondents. Moreover, the said allegations against the petitioner have also been established in the criminal court. The order dated 30.10.2010 is inconformity with the law and deserves to be upheld. Para-6(b) The grounds as taken under para-6(b) in sub para a to i are without any legal justification and deserves no consideration. There is no arbitrariness or violation of principle of natural justice as alleged. The petitioner cannot be permitted to take the advantage of alleged illiteracy, in view of the facts that he has produced a certificate of age in which his age was reduced a by difference of 16 years. Thus, the petitioner cannot be permitted to take the benefits of illiteracy. Since, the petitioner has been removed from service by imposing major penalty after due inquiry, therefore, he is not entitled to pension and other consequential benefits as claimed . The action of the respondents cannot be said to be against the principle of natural justice on the grounds being stated. The petitioner has repeated the same facts under these grounds. Since, the petitioner has been removed from service by imposing major penalty after due inquiry, therefore, he is not entitled to pension and other consequential benefits as claimed . The action of the respondents cannot be said to be against the principle of natural justice on the grounds being stated. The petitioner has repeated the same facts under these grounds. The petitioner has no grounds to assail the action of the respondents on any grounds. The petition being groundless deserves to be dismissed. The respondents shall be making detailed submission with respect to the grounds as taken in the petition at the time of arguments of the petition on merit.” 5. In addition to above, reply-affidavit further indicates that order imposing penalty of removal was imposed against the petitioner on 30.10.2010 but the petitioner has slept over his rights and he filed the instant petition, before erstwhile Tribunal [OA No.1495 of 2019] only on 09.04.2019 and, therefore, the petition suffers from delay and latches also. In addition to above background, the respondents have prayed for dismissing the instant petition. NO REBUTTAL BY RESPONDENTS: 6. Stand of State Authorities in reply-affidavit has not been rebutted by the petitioner, by filing rejoinder thereto. SUBMISSIONS MADE BY LEARNED STATE COUNSEL DURING HEARING: 7. During the course of hearing today, the Learned State Counsel has placed on record, a copy of judgment dated 31.10.2019 [taken on record] passed by Learned Judicial Magistrate 1st Class, Arki, in Criminal Case No.117/2 of 2010, titled as The State of Himachal Pradesh Versus Kanshi Ram and another, revealing that the petitioner, Kanshi Ram, has also been convicted by Learned Trial Court, for the offences under Sections 420, 467, 468 and 471 of the Indian Penal Code. 8. This Court is also apprised of the fact that judgment and sentence of conviction imposed by Learned Trial Court on the petitioner in terms of judgment dated 31.10.2019, has been assailed in Criminal Revision No.147 of 2023, titled as Kanshi Ram vs State of Himachal Pradesh , wherein, the substantive sentence has been suspended. With these averments it is submitted that since the substantive sentence has been suspended, therefore, the penalty of removal ordered against the petitioner on 30.10.2010, may not be given effect to or may be reconsidered and the petitioner may be granted the benefit of pension, gratuity and leave encashment for services rendered by him with the respondents. With these averments it is submitted that since the substantive sentence has been suspended, therefore, the penalty of removal ordered against the petitioner on 30.10.2010, may not be given effect to or may be reconsidered and the petitioner may be granted the benefit of pension, gratuity and leave encashment for services rendered by him with the respondents. 9. Heard Mr. Abhinav Ghabroo and Mr. Amrick Singh, Learned Counsel for the petitioner and Mr. Ajit Sharma, Deputy Advocate General, for the respondents-State. 10. Taking into account the entirety of facts and circumstances, this Court is of the considered view, that the impugned order dated 30.10.2010 [Annexure A-7], does not calls for any interference, for the following reasons :- 10(i). Petitioner was engaged as a Beldar [Class- IV] on daily wage basis and was conferred the work-charged status on 24.05.1999 [Annexure A-1]. Petitioner is alleged to have submitted a false date of birth certificate, showing his date of birth as 01.09.1952, whereas, the true date of birth of petitioner, Kanshi Ram, was 1936. 10(ii). Based on wrong and incorrect furnishing of his date of birth particulars, petitioner intended to seek unwarranted and undue gains for himself. This inaction was brought to notice by way of a complaint filed by one Sh. Lachman Singh, upon which an FIR No.93 of 2009, dated 22.09.2009 under Sections 420, 467, 468, 471 of IPC was registered against petitioner. In addition to judicial proceedings, the departmental proceedings were also initiated against petitioner by respondents by issuing a Memorandum-chargesheet on 01.02.2010. The departmental proceedings initiated against petitioner were undertaken by respondents in accordance with law. The Disciplinary Authority-cum-Executive Engineer, Arki Division appointed an Inquiry Officer on 08.03.2010. The Inquiry Officer conducted the departmental inquiry as per procedure and he submitted the Inquiry Report dated 20.08.2010. Based on the findings contained in the inquiry report, the disciplinary authority came to a specific conclusion that petitioner intended to seek benefit of unwarranted and undue gains by giving wrong particulars of his date of birth at the time of joining service. Disciplinary authority had taken into account the date of birth certificate, as produced during the course of inquiry reveal the date of birth of petitioner as 1936. Based on the findings in the inquiry report and discussion carved out by disciplinary authority, the petitioner was removed from service on 30.10.2010 [Annexure A-7]. 10(iii). Disciplinary authority had taken into account the date of birth certificate, as produced during the course of inquiry reveal the date of birth of petitioner as 1936. Based on the findings in the inquiry report and discussion carved out by disciplinary authority, the petitioner was removed from service on 30.10.2010 [Annexure A-7]. 10(iii). Once the respondents have initiated disciplinary proceedings against the petitioner by issuing chargesheet on 01.02.2010, which was inquired into as per procedure and norms leading to passing of removal orders on 30.10.2010 [Annexure A-7], then, this Court is not inclined to interfere with the findings recorded by the inquiry officer, which were further agreed to by disciplinary authority against the petitioner. 10(iv). The person who joins Government service has to come with clean hands. During the course of recruitment and at the time of joining and even thereafter, a person who is seeking employment has to come clean and neat with his acts and deeds. In this case, at the time of joining service on conferment of work-charged status on 24.05.1999 [Annexure A-1], the petitioner was required to furnish the particulars of his date of birth. Such particulars of date of birth were required to be submitted by petitioner which were genuine, correct, not forged and fabricated as required under the Himachal Pradesh Financial Rules and the Fundamental Rules. In the instant case, petitioner admittedly had submitted a false date of birth certificate, showing his age as 01.09.1952, whereas, his correct date of birth as per the official records was 1936. Further learned counsel for petitioner has not been able to point out any material on record, based on facts as well as law, which reflect the date of birth of petitioner as 01.09.1952. Further in absence of any genuine, cogent and convincing material, the date of birth certificate by petitioner as 01.09.1952 instead of true and correct date of birth as 1936, cannot be relied upon and therefore, the Inquiry Officer as well as disciplinary authority had rightly passed the removal orders against the petitioner on 30.10.2010 [Annexure A-7]. The orders of removal dated 30.10.2010 [Annexure A-7], are also not required to be interfered, in the instant case, for the reason, that it is not the case of petitioner that the inquiry was not conducted as per the procedure mandated in the Rules. The orders of removal dated 30.10.2010 [Annexure A-7], are also not required to be interfered, in the instant case, for the reason, that it is not the case of petitioner that the inquiry was not conducted as per the procedure mandated in the Rules. Moreover, nothing has been pointed out before this Court even during arguments, that the Inquiry Officer has conducted the Inquiry investigation of any of the rules of procedure for conducting disciplinary proceedings as spelt out in Rule 14 of CCS [CCA] Rules or otherwise. In this backdrop, this Court is not inclined to interfere with the removal orders dated 30.10.2010 [Annexure A-7]. 11. The case needs to be tested from another angle. Pursuant to the disciplinary proceedings and the inquiry conducted by inquiry officer and after passing of orders of penalty of removal dated 30.10.2010 [Annexure A-7], the petitioner slept over his rights for about 9 years till filing of OA No.1495 of 2019 on 09.04.2019. Further, the petitioner chose not to assail the removal orders before State Administrative Tribunal [which at the relevant time, was in existence] within a period of one year or maximum permissible period of one year and one month in Section 21 of Administrative Tribunals Act, The slackness and negligence adds to the inaction, indicating prima facie acceptance of removal orders by the petitioner. Even, the delay and latches is good enough by refraining from showing indulgence qua the removal orders dated 30.10.2010 [Annexure A-7], in proceedings instituted after about nine years on 09.04.2019, as referred to above and that too without narrating any cogent, convincing and sufficient cause for the delay. Thus, the removal orders are not interfered with, in the instant case. 12. Now coming to the claim of petitioner for release of retiral benefits i.e. Pension, Gratuity and Leave Encashment etc. is concerned, this Court is of the considered view, that the claim for releasing pension is untenable, for the reason, that in pursuance to departmental proceedings under Rule 14 of CCS [CCA] Rules, the petitioner was removed from such on 30.10.2010 [Annexure A-7] by way of penalty and as per Rule 24 of CCS [Pension] Rules, removal from service entails forfeiture of service for all purposes. In these circumstances, upon forfeiture of past service, the claim of petitioner, for pension, is not sustainable. 12(i). In these circumstances, upon forfeiture of past service, the claim of petitioner, for pension, is not sustainable. 12(i). Claim of petitioner for pension is not tenable, in view of the provisions of Rule 24 of CCS [Pension] Rules, which mandates that removal of a Government servant from service entails forfeiture of past service. The provision of Rule 24 reads as under :- “ 24. Forfeiture of service on dismissal or removal Dismissal or removal of a Government servant from a service or post entails forfeiture of his past service. GOVERNMENT OF INDIA’S DECISION Termination of service under Temporary Services rules or under the term of appointment for failure to pass prescribed examination, does not entail forfeiture of past service.- The Government of India, in consultation with the Ministry of Home Affairs, have held that the termination of service either under CCS (TS) Rules, 1965, or under the terms of appointment for failure to pass a prescribed examination does not amount to dismissal or removal within the meaning of Article 418(a) CSR (Rule 24). A Government servant whose services are terminated for failure to pass prescribed examination and who is appointed to another post without any break, will count his previous service towards leave and pension.” 13. A Government servant whose services are terminated for failure to pass prescribed examination and who is appointed to another post without any break, will count his previous service towards leave and pension.” 13. So far as the claim for Gratuity is concerned, this Court is of the considered view that the petitioner is neither eligible nor entitled for Gratuity, for the reason, that firstly, the penalty of removal dated 30.10.2010 [Annexure P-7], has resulted in forfeiture of his past service; as per Rule 24 of the CCS [Pension] Rules; and secondly, forfeiture of past service presupposes that neither any service nor any qualifying service was attributable to the petitioner; and thirdly, as per Rule 50 of CCS [Pension] Rules the Gratuity is admissible for qualifying service rendered by an employee, which in instant case stands forfeited or obliterated; and fourthly, even as per Rule 69 (1)(c) of the CCS [Pension] Rules, no Gratuity is payable to a government servant until the conclusion of the departmental or judicial proceeding and issue of final orders thereon; and fifthly, once the petitioner has been imposed the penalty of removal from service on 31.10.2010 [Annexure P-7], in departmental proceedings and the petitioner stands convicted in the judicial proceedings in pursuance to FIR No.93 of 2009 on 31.10.2019 and in view of conviction, no final orders for releasing gratuity were passed by State Authorities as yet then, the claim of petitioner for release of Gratuity is misconceived and without any foundation in law and the same was rightly denied to the petitioner by the State Authorities. In the instant case, besides the penalty of removal, the petitioner has also been convicted on 31.10.2009 in pursuance to FIR No.93 of 2009, by the competent Court. Conviction of petitioner is sufficient and is a valid ground for denying retiral benefits like pension, gratuity and leave encashment to an employee. In these circumstances, this Court does not finds any infirmity in aforesaid orders and therefore, the denial of retiral benefits is justified and is upheld. 14. Contention of Learned Counsel for petitioner that even though the petitioner has been convicted by Learned Trial Court on 31.10.2019 and the petitioner had filed a Criminal Revision No.147 of 2023, before this Court wherein the substantive sentence has been suspended on 17.03.2023, therefore, the retiral benefits may be released. 14. Contention of Learned Counsel for petitioner that even though the petitioner has been convicted by Learned Trial Court on 31.10.2019 and the petitioner had filed a Criminal Revision No.147 of 2023, before this Court wherein the substantive sentence has been suspended on 17.03.2023, therefore, the retiral benefits may be released. Above contention of Learned Counsel for petitioner is of no assistance to petitioner for the reason, that conviction of an accused encompasses the stigma, which flows from conviction. Mere suspension of sentence does not and cannot eradicate stigmatic effect instinct of conviction. The object of suspension of sentence is only to give leverage to a person-convict, so as to enable him to give eke out a living as a normal person. Unless the conviction is set aside; neither any right nor any locus standi accrues to petitioner for seeking release of retiral benefits, which in instant case, is also to be tested, in the background of removal orders which already exist against the petitioner. In these circumstances, the plea and contention of Learned Counsel for petitioner is misconceived and is outrightly rejected. 15. In addition to above, it is relevant to take note of the fact that pursuant to disciplinary proceedings the petitioner was removed from service on 30.10.2010 [Annexure A-7]. In addition to this, in the judicial-criminal proceedings originating from FIR No.93 of 2009, dated 22.09.2009 registered under Section 420, 467, 468, 471 of IPC with Police Station Arki, District Solan, the petitioner was convicted by Learned Trial Court on 31.10.2019. In these circumstances, once the act and conduct of petitioner was blemished and was not good in view of his removal and conviction, then, the retiral benefits cannot be released till his complete exoneration in departmental proceedings and the criminal-judicial proceedings. However, the penalty of removal from service and conviction in criminal-judicial proceedings render him ineligible for retiral benefits, at this stage, in these proceedings. CONCLUSION AND DIRECTIONS: 16. In the aforesaid backdrop and for the reasons recorded hereinabove, the instant petition is dismissed in the following terms :- (i) The impugned removal orders dated 30.10.2010 [Annexure A-7] are upheld. (ii) Denial of retiral benefits like pension, gratuity and leave encashment, to the petitioner in view of imposition of penalty of removal and his conviction by the Court in judicial proceedings also negate the right of petitioner for these benefits which are accordingly denied. (ii) Denial of retiral benefits like pension, gratuity and leave encashment, to the petitioner in view of imposition of penalty of removal and his conviction by the Court in judicial proceedings also negate the right of petitioner for these benefits which are accordingly denied. (iii) Parties to bear respective costs. In aforesaid terms, the petition is disposed of and all pending application(s), if any, shall also stand disposed of.