Court No. - 2
Case :- WRIT - A No. - 20674 of 2016 Petitioner :- Arun Kumar Giri Respondent :- Vice Chancellor Deen Dayal Upadhyay University And 5 Others Counsel for Petitioner :- Praveen Kumar Giri,Ashok Khare,Daya Ram Singh Chauhan Counsel for Respondent :- C.S.C.,Brajesh Datta Pandey,Surya Pratap Singh Parmar
Hon'ble Suneet Kumar,J.
Heard learned counsel for the parties and perused the original records produced by the respondent-Deen Dayal Upadhyay, Gorakhpur University, Gorakhpur, in particular, B.Sc. mark sheet tabulation register of students of 1983-1984. The learned counsels for the respondents submit that the matter be decided finally upon perusal of the record.
It is urged that petitioner was a B.Sc. student in D.A.V. Post Graduate College, Azamgarh, (for short ‘the College’) duly affiliated to Deen Dayal Upadhyay, Gorakhpur University, Gorakhpur (for short ‘University’). Petitioner passed the B.Sc.-I examination in 1983, bearing roll number 29228. It appears that though the petitioner was present in the Chemistry practical examination, however, inadvertently was shown absent, consequently, the Principal of the College certified and informed the University that petitioner had appeared in the practical paper and submitted a report before the second respondent, Examination Controller, Deen Dayal Upadhyay, Gorakhpur University, Gorakhpur. Pursuant thereof, 32 marks was awarded to the petitioner in Chemistry practical paper. On the strength of the report of the Principal, necessary correction was made in the marks tabulation register by the University, consequently, mark sheet showing that petitioner scored 212 marks out of 450 marks was declared passed. Pursuant thereof, petitioner was admitted to B.Sc.-II course in 1984, bearing roll number 132472, petitioner passed the B.Sc.-II examination with 204 marks out of 450 marks, thus, obtained 416 out of 900 marks in B.Sc. (Chemistry). He was declared pass, consequently B.Sc. Certificate was issued by the University.
Petitioner came to be appointed assistant teacher (L.T. grade) in 1992 in Sri Krishna Geeta Rashtriya Inter College, Lalganj, Azamgarh, a recognized and aided Intermediate institution.
It is submitted that the sixth respondent, namely, Anand Prakash Singh, an assistant teacher (L.T. Grade) of the Intermediate institution, who was occupying college premises after retirement, was having personal animosity with the petitioner, therefore, to settle scores with the petitioner, he made a complaint to the Authorized Controller/Associate District Inspector of Schools on 28 December 2012 to cancel the appointment of the petitioner and to recover the salary on the ground that petitioner had obtained appointment on the strength of a forged B.Sc.-I mark sheet. The fifth respondent, District Inspector of Schools, Azamgarh, called a report from the Authorized Controller and the Principal of the Intermediate institution. Petitioner submitted his reply to the Principal of the institution and to the fifth respondent on 29 January 2013, however, the fifth respondent without awaiting the receipt of the reply of the Principal and the petitioner, vide order dated 23 January 2013, withdrew the approval order dated 13 July 1995 of the petitioner as assistant teacher, declaring the same ineffective. Upon cancellation of the approval order, the Principal of the Intermediate institution lodged an F.I.R. being Case Crime No. 302/2014, under sections 419, 420, 467, 468 and 471 I.P.C. at Police Station Kotwali, District Azamgarh. The arrest of the petitioner, it is informed, has been stayed by this Court (Writ Petition No.2190 of 2006).
It is urged that the clerk of the D.A.V. P.G. college filed a notary affidavit before the Circle Officer, Azamgarh, on 19 March 2015 stating therein that the petitioner had appeared in the practical examination, however, inadvertently, in tabulation chart the marks could not be entered which was subsequently corrected by the University on production of original record of the college.
It is not in dispute that the mark sheets of B.Sc.-I and B.Sc.-II was issued by the University, petitioner was a student of a degree college duly affiliated to the University and had appeared in the B.Sc.-I examination in 1983. The dispute, inter se, parties is as to whether petitioner was awarded 32 marks in Chemistry practical in B.Sc.-I or the marks was entered subsequently in the record by interpolation. A complaint was filed after 30 years. The University on obtaining the opinion of the hand writing expert arrived at a conclusion that the initials appended while correcting the marks cannot be said with certainty is of the same official. In other words, the expert opinion was called upon to verify the ‘initials’ and not the ‘signature’ of the concerned official of the University and on the basis thereof petitioner has been non suited.
Expert opinion is only an opinion of an expert and has been considered to be of a very weak nature. This Court in Rajesh Kumar Vs. Union of India & others1, observed thus:-
"11. Expert opinion is only an opinion and has been considered to be of a very weak nature. The decision of the bank is based on the expert opinion alone to establish the guilt of impersonation.
In Gulzar Ali Vs. State of Himachal Pradesh2, the Supreme Court observed that the observation of the High Court that there is a natural tendency on the part of an expert witness to support the view of the party who called him, could not be downgraded. Many so-called experts have been shown to be remunerated witnesses making themselves available on hire to pledge their oath in favour of the party paying them.
12. This Court considered large number of judgments in Tika Ram Vs. Daulat Ram3 and held as follows:-
"9. Evidence of an expert is only an opinion. Expert evidence is only a piece of evidence and external evidence. It has to be considered along with other pieces of evidence which would be the main evidence and which is the corroborative one depends upon the facts of each case. An expert's opinion is admissible to furnish the Court a scientific opinion which is likely to be outside the experience and knowledge of a Judge. This kind of testimony, however, has been considered to be of very weak nature and expert is usually required to speak, not to facts, but to opinions. It is quite often surprising to see with what facility, and to what extent, their views would be made to correspond with the wishes and interests of the parties who call them. They do not, indeed, wilfully misrepresent what they think, but their judgment becomes so warped by regarding the subject in one point of view, that when conscientiously deposed, they are incapable of expressing a candid opinion."
The Court has made the observation in trial, treating handwriting expert evidence as being opinion evidence. In service jurisprudence allegation has to be proved on preponderance and not beyond reasonable doubt. But the delinquent employee has to be confronted with the evidence as it is rebuttable."
I have perused the marks tabulation register of the University with the assistance of the learned counsels for the parties. Entry of B.Sc. -I marks is made at page 17 and B.Sc.-II on page 18. The names of the students, including the petitioner, is recorded in print and the marks of each paper and practical is entered in ink in the respective column. The record reflects that petitioner was initially shown absent in practical by
1. 2014 (10) ADJ 672
2. 1998 (2) SCC 192
3. 2013 (8) ADJ 617 marking 'A' which was subsequently crossed and 32 marks was entered in the column. Similar, correction was made in the column of total marks making it 212 after adding 32 marks. The corrections are initialed and it is the ‘initials’ made therein was got examined by the University by hand writing expert to non suit the petitioner.
From perusal of page 17 of the register it transpires that similar correction in respect of other students have also been made and initials therein has been appended. In other words, the University has been correcting the marks on either representation or otherwise. Petitioner pursuant to B.Sc.-I marks was admitted in B.Sc.-II in 1984, his name is at serial number 2 and on the said page there is no interpolation/correction, however, in the remarks column it was recorded 'B.Sc.-I failed' which was subsequently deleted and initialed. It is this entry in the remarks column which has created doubt with the University.
On specific query, learned counsel appearing for the University was unable to explain as to how a failed student could have been admitted in B.Sc.-II as a regular student. Further, he is unable to explain as to how in 1984 tabulation sheet, against the name of the petitioner is recorded ‘B.Sc.-I failed’, had petitioner failed in B.Sc.-I practical, he could not have appeared in the B.Sc.-II examination and there was no occasion for the remarks ‘B.Sc.-I failed’ being recorded in 1984. There is no interpolation/correction in the recorded marks of B.Sc.-II, meaning thereby, the interpolation ‘B.Sc.-I failed’ was probably entered subsequently in the consigned records of the University. It is not the case of the University that petitioner was given provisional admission in B.Sc.- II.
Learned counsel for the respondent-University fairly submits that had the student not passed in B.Sc.-I practical he could not have been admitted to B.Sc.-II as a regular student. Further, there was no occasion to record in the remarks column that the petitioner had failed in B.Sc.-I. The petitioner had completed the B.Sc. course as a regular student in two consecutive years that was prevalent examination pattern at the relevant time.
It is admitted that petitioner was neither given opportunity either by the fifth respondent or by the third respondent before passing the impugned order and the expert opinion was also not made available. The University doubted the B.Sc.-I marks of the petitioner merely upon examination of ‘initials’ appended on the cuttings by the hand writing expert. In any case, upon perusal of the original record, it is writ large that the consigned record of the University was subsequently tampered giving an impression that the petitioner had failed in B.Sc.-I. This fact is not borne out from the record of the University, for the reason that petitioner was admitted to B.Sc.-II in the subsequent year itself. There is no cutting of marks in the B.Sc.-II tabulation chart. The remarks ‘B.Sc.-I fail’, therefore, could not have been entered nor there was any occasion for it which substantiates the assertion of the learned counsel for the petitioner that mischief was played against the petitioner by interpolating the consigned University record at the time of making the complaint. Learned counsel for the respondent was not able to explain as to how in the remarks column of B.Sc.-II such an endorsement could have been made after admission of the petitioner in part-II and he appeared in the examination as a regular student. The approach of the University has been unfair and unjust by non suiting its student on mere opinion, moreso, the University admits that petitioner was its student duly enrolled in B.Sc. Chemistry in 1983/1984.
Supreme Court in Mathura Prasad v. Union of India and others, (2007) 1 SCC (L&S) 292, held that when an employee is sought to be deprived of his livelihood for alleged misconduct, the procedure laid down under the rules are required to be strictly complied with:
"When an employee, by reason of an alleged act of misconduct, is sought to be deprived of his livelihood, the procedure laid down under the sub-rules are required to be strictly followed: It is now well settled that a judicial review would lie even if there is an error of law apparent on the face of the record. If statutory authority uses its power in the manner not provided for in the statute or passes an order without application of mind, judicial review would be maintainable. Even an error of fact, for sufficient reasons may attract the principles of judicial review."
Supreme Court in Union of India vs. K.V. Jankiraman4, Union of India V. Anil Kumar Sarkar5, and State of Andhra Pradesh v. C.H. Gandhi6, held that the enquiry commences from the date of issue of charge-sheet. Framing of the charge-sheet is the first step taken for holding enquiry into the allegations on the decision taken to initiate disciplinary proceedings. Service of charge-sheet on the Government servant follows decision to initiate disciplinary proceedings and it does not precede and coincide with that decision. (Refer: Delhi Development Authority v. H.C. Khurana7).
4. (AIR 1991 SC 2010)
5. 2013 (4) SCC 161
6. 2013(5) SCC 111
7. 1993 (3) SCC 196 No useful purpose would be served by remitting the matter to the second respondent to pass fresh order after giving opportunity to the petitioner, at this stage, after examining the original record produced by the University, petitioner has been made a victim of a mischief.
Having due regard to the peculiar facts and circumstances of the case, it was not open for the University to have cancelled the mark sheet and degree of the petitioner in such a casual manner and that too after 30 years, it is admitted that the original records were weeded out after two years of the B.Sc. Examination, the only record available is the tabulation register of the students, which is in the custody of the University Officials. Petitioner came to be appointed assistant teacher in 1992 and his credentials, including, educational certificates must have been verified by the fifth respondent, before approving the appointment of the petitioner. The writ petition deserves to be allowed. Order accordingly.
The impugned order dated 23 January 2013, passed by the fifth respondent, District Inspector of Schools, Azamgarh, and order dated 13 April 2016 passed by the second respondent, Examination Controller, Deen Dayal Upadhyay, Gorakhpur University, Gorakhpur, is set aside and quashed. Petitioner is entitled to continue in service. Since petitioner has been made victim of a false and malicious complaint and kept out of employment for no fault of his own, he is entitled to entire arrears of salary. Salary to be released by the competent authority within two months from the date of receipt of certified copy of this order, failing which petitioner would be entitled to 7% interest on the entire sum from the due date.
No cost.
Order Date :- 31.7.2019 K.K. Maurya