RESERVED
Court No. - 36
Case :- WRIT - A No. - 2401 of 2008 Petitioner :- Kamlesh Kumar Respondent :- The State Of U.P. And Others Counsel for Petitioner :- Radha Kant Ojha,P.K.Tripathi,Prabhakar Dwivedi,Rajeev Misra,Sanjay Kumar Yadav Counsel for Respondent :- C.S.C.,S.S.Sharma Hon'ble Mrs. Sunita Agarwal,J.
The original record of selection was summoned and produced by the learned Standing Counsel. Having perused the original record, it is evident that three marks were assigned to the petitioner for producing State level sports certificate.
The petitioner is aggrieved by the order of cancellation of his appointment to the post of Jail Warder (Bandi Rakshak) in the Central Jail, Varanasi. An advertisement was issued on 09.08.2004 calling application for appointment to the said post. The petitioner claim to have applied and a call letter dated 27.10.2004 was issued requiring him to appear in the physical test held on 16.11.2004. The petitioner having cleared physical test appeared before the interview board on 09.12.2004. Having been found successful, appointment letter dated 05.02.2005 was issued to the petitioner and he had joined the services on 05.02.2005. The selection criteria as prescribed in the rules is that the quality point mark were to be given to the candidates on the division/rank obtained by them in “intermediate” and “graduate” examination and also some marks were assigned for the sports participation certificates.
In paragraph no.'8' of the writ petition, the petitioner states that while preparing quality point marks, the petitioner got 15 marks for “intermediate”, 7 marks for “B.A.” and 2 marks for District/School Level sports certificate, total 24 marks and being OBC category he could make it to the merit list as the last selected candidate in that category got 23 only.
It is then contended that when these selections were made, two private respondents namely respondent nos.4 & 5 who were clerk in the department demanded Rs.1 lac from the petitioner when denied they threatened that they would not allow the petitioner to work in the jail. All of a sudden, a notice dated 14.07.2007 was served on the petitioner. Reply was submitted on 21.07.2007 wherein the petitioner claimed that only School/District level sports certificate, duly attested by a Gazette officer was appended with the application form. It is contended that the notice was the act of the private respondent nos.4 & 5 as they had threatened the petitioner earlier. The application dated 25.10.2007 was moved under RTI Act to get the complete copy of the application form filled by him. It was then found that in the relevant column No.8, the petitioner had ticked the column “college/school” whereas other two private respondents in order to harm the petitioner, tick-marked another column of State level certificate. A copy of the State level certificate allegedly appended with the application form, has been filed here as Annexure No.'10' to the writ petition.
With these facts, it is sought to be submitted by the learned counsel for the petitioner that insertion of State level certificate in the record of selection was an act of interpolation by the private respondents who were working as clerk in the department.
It appears that on presentation of this petition, vide order dated 17.01.2008, the Court had directed to conduct an enquiry into the matter relating to allegations that the petitioner had supplied false certificate and the enquiry report was to be placed in the Court. A counter affidavit dated 23.04.2015 and an affidavit dated 23.05.2008 were filed to bring on record the photo copy of the enquiry report dated 13.05.2008 alongwith the document and statements relied upon in the said proceeding. In the said enquiry, the petitioner was given full opportunity of hearing. The result of the enquiry was that the order of termination was found justified for two reasons, firstly, that the sports certificate of State level was forged and secondly, when the said certificate is ignored, the petitioner would get total 23 marks, in as much as, for School/District Level sports certificate two (2) marks can only be provided, whereas the petitioner got three (3) marks for the State Level certificate. In case, the petitioner would have got 23 marks, his placement in the merit list would be at serial No.190 and since in the interview only 130 candidates from top were called, the petitioner could not have qualified for interview. He could participate in the interview only because he was given three (3) marks for sports certificate of the State level, which made his total to 24, placing him higher in the merit giving chance to participate in the interview.
In the rejoinder affidavit, no plausible reply could be given by the petitioner to the stand of the respondent that he was given three (3) quality point marks which had resulted in his entry to the merit list. The assertion in paragraph no.'5' of the rejoinder affidavit that even if one mark is deducted, the petitioner would be getting 23 marks, same as that of the last selected candidate, is wholly inconsequential, in view of the clear explanation given by the respondent regarding the merit position of the petitioner in the examination.
As far as the claim of the petitioner that the State level certificate was not submitted by him and it was an act of interpolation by the private respondent nos.4 & 5, suffice it to note that the said certificate was considered by the selection committee and '3' marks were provided to the petitioner on the basis of the said certificate, which proved beneficial to him as he was called for interview. It is, therefore, clear that the sports certificate upto State level was enclosed in the application form and was before the selection committee. The plea of interpolation by the respondent nos.4 & 5 post selection, is, thus, found misconceived.
Further, learned counsel for the petitioner vehemently argued that on the similar allegations, an FIR under Section 419, 420, 467, 468 and 471 was lodged. The criminal court had acquitted the petitioner holding that the prosecution could not prove the guilt of the petitioner. He thus, submits that the evidences which were not brought before the criminal court could not have been examined in the enquiry before this Court. Even otherwise, the decision of the Court of criminal jurisdiction is binding on the disciplinary authority, in as much as, the allegation of forgery were not proved.
This submission is found misconceived, in as much as, the principle applicable for appreciation of evidence in a criminal case and in a departmental enquiry differs. The Evidence Act' 1872 does not attract in a departmental enquiry. In the criminal court, the prosecution has to prove the allegation beyond all reasonable doubt whereas in a departmental enquiry the principle of preponderance of probability is the guiding factor.
Mere acquittal of the person in a criminal proceeding cannot be a ground for interfering with the order of the punishment imposed by the disciplinary authority. Reference may be made to the judgement of the Apex Court in Southern Railway Officers Association v. Union of India reported in 2009 (9) SCC 24. Even acquittal does not entitle an employee to reinstatement in service. Reference may also be made to the judgement of the Apex Court in Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchal reported in 1994 (1) SCC 541.
Even otherwise, in the instant case after an enquiry it was proved that the petitioner got selection by submitting a forged sports certificate of State level. Forgery vitiates every solemn act. Once fraud is proved, even a judgement of a Court, or order cannot be allowed to stand if it has been obtained by forgery. The fraud unravels everything.
As far as the stand of the petitioner that he has worked for two years prior to the termination of his services, suffice it to note that no one can be allowed to retain the benefit of the wrong committed by him. Where a person secures an appointment on the basis of a forged certificate, his services are liable to be terminated. An identical controversy was subject matter of consideration in Special Leave (D) No.481 of 2010 (State of U.P. through Secretary, Ministry of Home Vs. Pooja Verma) wherein the respondent therein was recruited and appointed as Bandi Rakshak in the yer 2015. The allegation against her was that she had used a sports certificate which was fake and fabricated. The respondent took the plea that the documents, based on which her services were terminated, was not produced by her. She then argued that at best it can be a case of misconduct, a regular enquiry was needed. The Court had framed question as to whether the certificate was fake and, if so, what would be the next step. It has observed that when the respondent had demonstrated that the candidate was provided mark for the certificate being produced and if those marks were deducted she would not be entitled to be considered for selection then the defence taken by the petitioner therein was not sound.
Further, on the plea of enquiry, it was held by the Division Bench that once the appointment is obtained by fraud and it in a matter of fake certificates, it is not necessary to conduct a full fledged departmental enquiry so as to prove the charges of misconduct, as such is not a case of misconduct in the course of employment rather for the act of the respondent there to secure appointment by fake means.
The Division Bench, therefore, set aside the view taken by the learned Single Judge and dismissed the said writ petition.
From the law as discussed above, it is clear that in case where an employee seeks an appointment based on certain certificate/documents, after selection, on examination of genuineness/verification of the said documents if found fake, the appointment can be cancelled without a full fledged enquiry.
In the instant case, soon after the selection, papers were sent for verification before the competent authority which after verification sent a communication clearly stating that the “State level sports certificate” appended with the application form of the petitioner was a fake document. After receipt of the notice, the petitioner was called upon to furnish his explanation. In the explanation, the petitioner only states that the said certificate was not produced by him rather he had appended School level certificate with the application form. The certificate was replaced and interpolated by private respondent Nos.4 & 5.
This defence when tested was found false in the enquiry. The Court also finds that the petitioner was assigned three marks for the “State level sports certificate” and could get into the merit list of 130 candidates who were called for interview. In case, his assertion is correct that “School level certificate” was appended by him, he would have got only 2 marks, thus, his position would be 190 in the merit list and then there was no question of calling him in interview.
This fact, therefore, makes it clear that the petitioner got selection on the post of Bandi Rakshak by using a certificate of “State level sports” which was later on found to be a fake document.
In the said circumstance, all the submissions of learned counsel for the petitioner to assail the order impugned cannot be accepted. The writ petition is found devoid of merits and hence dismissed .
Order Date :- 28.8.2019 Himanshu