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Judgment
Om Prakash VII, Member (J)
The present O.A has been filed by the applicant under section 19 of the Administrative Tribunal Act, 1985 seeking the following reliefs:-
“(i) That the order No. DGM-SHN/Vig/CP/2012/07 dated 17.02.2014 passed by respondent NO. 3 (Annexure A-1 to the compilation No.1) and also the orders passed by the appellate authority respondent NO.2 by not allowing any relief to the applicant (Annexure A-2 to the compilation No.1) be quashed and respondents be directed to reinstate the applicant on the post held by him with all the consequential benefits attached to the post including back wages with interest at the rate of 12% per annum till the date of actual payment thereof.
(ii) That any other and further relief which this Hon’ble Tribunal may deem fit and proper be also awarded to the applicant.
(iii) Cost of proceeding be awarded to the applicant”.
The facts in brief giving rise to the present O.A. are that applicant initially engaged as a Labour from 1979. On completion of 713 days working as Labour on muster roll, the applicant was regularized in the year 1981. The applicant was originally belonging to State of Rajasthan and title caste of the applicant was Ahariya with sub caste Sahariya, hence the applicant is a Scheduled Tribes category. Applicant along with other appeared in the departmental examination, in which he has succeeded and thereafter was posted as a Cable Jointer after due verification of the documents. A complaint has been received in the office against the applicant on 18.07.2008 stating therein that applicant has manipulated his caste name Aharia which is not in the list of Scheduled Tribe. Sr. G.M.T.D. BSNL Saharanpur forwarded this complaint to the Tehsildar Saharanpur for verification of genuineness of the caste certificate of the applicant. The Tehsildar Saharanpur wrote a letter to the Incharge certificate in Saharanpur dated 15.7.2009 stating therein that caste certificate No. 434 issued on 30.12.1981 to applicant for caste Sahariya was not confirmed. The order NO. 165/Jan Suvidha Kender Sadar dated 1.10.2009 for cancellation of the caste certificate was forwarded by the Tehsildar to the applicant as well as to the GMTD BSNL Saharanpur. Aggrieved against the decision of Tehsildar Saharanpur, applicant filed OA No.1271 of 2009 before the CAT Allahabad which was dismissed by the order dated 5.11.2009. Against the order of the Tribunal, applicant filed writ petition No. 64234 of 2009 before the Hon’ble High Court, which was decided by judgment and order dated 26.11.2009 with a direction to establish the right in competent civil court. The DGM (CFA) O/o GMTD BSNL Saharanpur served a major chargesheet to the applicant on 11.4.2011 under Rule 36 of BSNL CDA Rules 2006. Inquiry Officer was appointed and submitted his report on 23.10.2012. Disciplinary authority issued disagreement note on 05.1.2013 to the applicant asking to submit his representation within 15 days. Applicant submitted his representation against the disagreement note dated 29.01.2013. Thereafter applicant filed CP No. 11292 of 2014 in which stay order was granted on 21.02.2014. Disciplinary Authority issued punishment order of removal from the service by order dated 17.02.2014. Against the order of disciplinary authority, applicant filed appeal, which was also dismissed on 12.09.2014.
We have heard Sri Satish Dwivedi, learned counsel for the applicant and Sri D.S. Shukla, learned counsel for the respondents and perused the record.
Submission of the learned counsel for the applicant is that applicant was engaged as Casual Labour. He had completed 265 days as Casual Labour, therefore, he was regularized in view of the settled principle of law, thus, removal of the applicant from service is illegal. The applicant has not taken any benefit to the caste certificate. He was simply regularized in accordance with rules. Applicant’s regularization was not in lieu of selection, thus on this count also orders passed by the disciplinary authority as well as appellate authority are illegal. It was next argued that the caste certificate is genuine; although the applicant is a resident of State of Rajasthan but he migrated to Saharanpur, Uttar Pradesh. He simply applied for caste certificate. No misrepresentation was done on his part. The authority concerned issued the caste certificate after verification; hence same was furnished before the respondents. It is also argued that when the applicant had submitted caste certificate certainly verification would have been made. No complaint was made at that time. The caste certificate was not found to be fake or forged. Disciplinary proceedings have been started on the basis of the complaint made by someone. It is also argued that while sending the caste certificate on the basis of complaint made by the complainant, entire documents relating to caste certificate were not sent to the competent authority for verification. This fact has been accepted by the respondents during the inquiry proceedings. Due to this reason correct facts were not placed before the authority concerned verifying the caste certificate. In fact, Sahariya is the sub-caste of Ahariya caste. This fact has been noted on the back of the caste certificate and it was not taken into consideration while canceling the caste certificate. The disciplinary authority issued a charge sheet against the applicant on insufficient grounds. The proper procedure for conducting the inquiry has not been followed. No independent evidence even the Tehsildar concerned who has issued the caste certificate has been examined nor any action against the said authority was taken by the government. It is further argued that the applicant’s appointment is not against the Scheduled Tribe post. To substantiate his argument, learned counsel for the applicant referred to the selection list annexed with the OA and further argued that inquiry officer himself has found the charges leveled against the applicant proved only to the extent that the caste certificate is issued for the caste Aharia and not for sub caste Saharia while caste certificates are issued mentioning caste only and not sub caste. Learned counsel for the applicant referring to the rule 43 of BSNL Conduct, Discipline Rules 2006 argued that punishment imposed upon the applicant is also illegal. Entire documents regarding the inquiry have to be sent before the authority concerned taking recourse to the provision of Rule 43 of aforesaid rule for review of the matter, but instead of reviewing the entire facts and circumstances of the case, only ratification has been made under Rule 43 of the BSNL. It is next argued that the punishment imposed upon the applicant is disproportionate. If the applicant was not belonging to ST community at the most minor punishment should have been imposed upon him particularly when there was no fault or misrepresentation on the part of the applicant while applying for the issuance of caste certificate. Disagreement note made by the disciplinary authority is also illegal. Reply made in lieu of disagreement note was not considered in correct perspective. To substantiate his argument, learned counsel for the applicant referred to the appointment letter as well as other documents annexed with the OA and further argued that OA be allowed and impugned punishment order be set aside reinstating the applicant.
Learned counsel for the respondents refuting the argument advanced by the learned counsel appearing for the applicant argued that no malafide has been shown on the part of the applicant in concluding the inquiry on the part of the inquiry officer. Nothing procedural defect has also been shown. The inquiry was made by a competent authority. In fact, the applicant is a resident of the State of Rajasthan, if he belongs to ST community in the State of Rajasthan, it is not necessary that he will also be deemed to be ST community in the State of Uttar Pradesh, until and unless that caste/community is recognized in State of Uttar Pradesh also in the ST category. It was further argued that the caste certificate after verification was found fake and forged. Due to this reason competent authority canceled it. Chargesheet was issued in accordance with the law. Proper procedure was followed in conducting the inquiry. Sufficient opportunities have been given to the applicant to defend his case. Thus, the punishment imposed upon the applicant is commensurate to the misconduct committed by the applicant. he was selected due to reason being ST candidate. Referring to the select list annexed with the OA, it was also argued that he would not have been selected/regularized, if he would not have been submitted caste certificate. Learned counsel for the respondents also argued that if the plea taken by the applicant is taken into consideration then also Sahariya caste in the State of Uttar Pradesh is recognized only for District Lalitpur. The caste certificate issued from District Saharanpur in regard to the applicant is illegal and fake document. The state is not barred to take action in the facts and circumstances of the case if much more time has elapsed after joining the candidate. It was next argued that the applicant has rightly been removed from service. There is sufficient evidence against the applicant, thus argued to dismiss the OA.
We have considered the rival submissions advanced by the learned counsel for the parties and have gone through the entire records.
As is evident from the record, the applicant originally belongs to the State of Rajasthan. Caste Sahariya is included in the ST category in the State of Rajasthan at serial No. 12. He has migrated to District Saharanpur Uttar Pradesh. A caste certificate was issued from Saharanpur District. Although the applicant was a casual labour. He was regularized but the Annexure No. 10 of the OA reveals the following facts:-
“The following candidates are hereby selected for regular Mazdoors in Saharanpur Division, provisionally subject to verification of original records of the date of birth”.
Sl. No.
Name of the candidate
Caste
No.of days
Regn. Card No. Employment exchange.
1.
Sh. Ganga Dutt Pandey
O/C
2406
6122/75/SHN
2.
“ Ram Sumeran
“
2236
522/82/RK
3.
“ Kasim
“
2061
186/791-766/RK
4.
“ Jay Prakash
“
2011
5.
“ Ravish Kumar
“
1695
186/79/RK
6.
“ Jay Prakash
“
1687
186/79/1-750/RK
7.
“ Mohan Singh Chauhan
“
1686
U-5-80/Reg U-13/80
8.
“ Jay Beer Singh
“
1638
U-13/B_1/SHN
9.
“ Shyam Lal
“
1625
186/79/I-L-766/HWR
10
“ Ramesh Kumar Dubey
“
1604
9874/81/SHN
11.
“ Pramod Kumar
“
1599
U-1/82/SHN
12.
“ Laxmi Prasad
“
1531
186/79/I-L-766/HWR
13.
“ Tej Bahadur Singh
“
1529
--
14.
“ Sauraj Singh
“
1523
U-12/79/SHN
15.
“ Kunwar Singh
“
1515
16
“ Vinod Raj Vyas
“
1449
U-69/79/SHN
17
“ Rishi Pal
“
1346
186/79/HWR
18
“ Ahr Dayal Rao
“
1314
U-13/81/SHN
19
“ Prem Chand
“
1523
U-12/79/SHN
20
“ Ashok Kumar
“
1252
186/79/L-750/HWR
21
“ Bisham Prasad Thapa
“
1250
5820/74/SHN
22
“Bishan Nath
“
1248
U-63/80/SHN
23.
“ Balbir Singh
“
1202
U-55/80/SHN
24.
“ Tilak Ram
“
1193
U-86/79/SHN
25
“ Rajeshawar Giri
“
1191
142/80/1904/RK
26.
Smt. Shanti Devi
“
1177
A-533/81/HWR
27
Sh. Kuldeep Rao Sharma
“
1172
271/82/SHN
28
“ Ramesh
“
1133
302/79/RK
29
“ Ashok umar Sharma
“
1122
186/79/L-750/HWR
30
“ Madan Gopl
“
1122
10546/77/SHN
31
“ Bhullan Singh
“
1120
5569/81/RK
32
“ Shri Nath Yadav
“
1111
5569/81/RK
33
“ Pama Pathi Pandey
“
1111
U-17/80/SHN
34
“ Karan Singh
“
1111
6315/80/HWR
35
Jagpal Singh
“
1105
2977/79/RK
36
Anil Chand
“
1097
0310/80/SHN
37
“ Ram Chandra
“
1093
U-5/80/SHN
38
“ Rama Kant Shah
“
1082
186/79/RK
39
“ Narendra Singh
“
1080
3561/81/HWR
40
“ Tej Bahadur
“
1114
4518/80/RK
41
“ Kalyan Singh”
“
996
1380/79/HWR
42
Sh. Sada Nand
O/C
947
----
43
“ Dharam Pal
S/C
1590
40/78/SHN
44
“ Jai Pal Singh
“
1183
U-60/79/SHN
45
“ Munna Lal
“
1446
4362/79/HWR
46
“ Balbir Singh
“
1293
186/79/L-750/RK
47
“ Isam Singh
“
1289
186/79/RK
48
“ Ram Pal Singh
“
1184
6927/80/HWR
49
“ Rajendra Singh
“
1177
U-27/81/SHN
50
“ Om Prakash
“
1057
U-77/80/SHN
51
“ Suresh Pal
“
953
486/79/RK
52
“ Ram Chandra Ram
“
934
3386/79/SHN
53
“ Bharat Bhushan
“
823
U-27/81/SHN
54
“ Mitai Ram
“
813
10567/80/SHN
55
“ Sarojan
“
811
---
56
“ Ratal Singh
“
801
--
57
“ Shyam Lal
“
799
4027/80/RK
58
“ Chhatar Pal
ST
713
U-13/81/SHN
59
“ Fateh Chandra
Ex/SEr
--
234/82/SHN
60
“ Chatru
“
--
181/82/SHN
61
“ Alam Singh
H/Capp
543
4760/80/SHN
Divisional Engineer Telegraphs
Saharanpur Division Saharanpur.
Copy forwarded for information and n/a to:-
G.M. Telecom (U.P) Lucknow.
Director Telecom (West) Dehradun.
Dy. Director Zila Sainik Parishad (Sainik Bhawan) Lucknow.
Director Harigan Kalyan Uttar Pradesh Lucknow.
Notice Board of DET office Saharanpur.
The Employment Officer, Employment Exchange, Saharanpur/Hardwar/ Roorkee. The registration number are mentioned against each candidates. They are requested to intimae to this office immediately whether above candidates were on roll in their employment exchanges. The word ‘SHN’ indicates Saharanpur ‘RKS’ indicates Roorkee and ‘HWR’ indicates Hardwar employment exchange.
The seleced candidates.
To
Sh……………………………
………………………………
He is advised to report to this office on or before _______ along with all the original educational certificates/Records Employment registration cards, Caste Certificate (incase of SC/ST) & attested copies of all original certificages and mark sheets. In case he does not report to the office of undersigned on stipulated date, his name may be struck off from the select list.
Sd/ R.S. Gopala
Divisional Engineer Telegraphs.
Saharanpur Division, Saharanpur.
The aforesaid list itself reveals that the applicant is selected at Sl No. 58 against the ST vacancy. If the number of days disclosed in the aforesaid list on which basis casual labours disclosed in the aforesaid select list have been regularized is taken into consideration lowest days of open category candidates was 947 days, maximum days for SC category was 1590 whereas minimum days for the SC candidate was 799. For the single post of ST, the number of days was 713 for selected candidate.
Submission of the learned counsel appearing for the applicant is that he was simply regularized, if he had not submitted a caste certificate then also he would have been regularized as there was the direction to regularize the casual labours.
If the submission on behalf of the applicant is compared with the facts disclosed in the aforesaid list, it is evident that if the applicant would not have submitted caste certificate, he would not have been regularized as there was only 713 days in his account whereas minimum number of days of last candidate of the open category was 947 days and SC category 799 days. Thus submission raised on behalf of the applicant on this count is not accepted.
As far as the submission raised on behalf of the applicant regarding annexure No. 6 is concerned, the brochure of October 1994 defines the claims of scheduled caste scheduled tribes on migration.
“Specification of Scheduled Caste/Scheduled Tribe Under Article 341 and 342 of the Constitution.
The following Presidential orders specifying the scheduled castes and scheduled tribes in the relation to the States/Union territories have been issued from time to time.
SCHEDULED CASTES/SCHEDULES TRIBES CLAIMS ON MIGRATION. (L-NO. 35/1/72-RU (SCT.V) dt. 2.5.75)
(i) Where a person migrates from the portion of the state in respect of which his community is scheduled to another part of the same state in respect of which his community is not scheduled he will continue to be deemed to be a member of the Scheduled Caste or the Scheduled Tribe, as the case may be in relation to that State.
(ii) Where a person migrates from one State to another, he can claim to belong to a Scheduled Caste or a Scheduled Tribe, only in relation to the State to which he originally belonged and not in respect of the State to which he has migrated”.
If the facts disclosed in the aforesaid brochure, which has been relied upon by learned counsel appearing for the applicant is taken into consideration, it is evident that the person who has migrated from the parent State to another State, his claim regarding his status as scheduled caste and scheduled tribe in the parent State shall be maintained. If the fact disclosed in the aforesaid boucher is minutely realized, he cannot claim the same status in the State where he has been migrated, if there is no recognition of his caste in that State.
As far as procedure for conducting inquiry is concerned, certainly, caste certificate issued in favour of the applicant was found forged. Sahariya community is recognized as ST only in the District Lalitpur. The caste certificate was issued in the caste name of Ahariya although on the back of the caste certificate, sub caste Sahariya is also mentioned in the caste of Ahariya. Thus submission raised on behalf of the applicant that entire documents were not sent for verification makes no difference. If for the sake of argument, entire documents along with the caste certificate would have been sent then also when Sahariya caste is not recognized in District Saharanpur, the caste certificate issued in favour of the applicant in that situation shall also be deemed to be forged and fake documents. Mere issuance of the caste certificate by the competent authority shall not be deemed that the caste disclosed in the caste certificate is correct for that particular District and the document is genuine document and the applicant cannot be punished on that basis.
A perusal of the record also reveals that copy of the charge-sheet along with relied upon documents in the inquiry have been supplied to him. Reply has also been made. Proper opportunity for defending his case has been given. Non-examination of the Tehsildar concerned who has issued the caste certificate will not make any difference to the inquiry result. Disagreement note prepared by the disciplinary authority has been served upon the applicant. Applicant has submitted his reply, which was also taken into consideration by the disciplinary authority while imposing the punishment.
As far as the compliance of provision of Rule 43 of BSNL Conduct, Discipline Rules 2006 is concerned, merely mentioning the word ratification in the letter it shall not be deemed that competent authority has not reviewed the entire fact before issuance of ratification report. Thus, submission raised on behalf of the applicant on this count is also not accepted. The appellate authority has also considered the facts and circumstances in the correct manner, no malice is shown on the part of the applicant. Even procedural defects have also not been elucidated. The inquiry has been concluded by the competent authority. If the applicant obtained employment on the basis of a forged community certificate then the punishment order imposed upon the applicant cannot be termed to be illegal. Benefit can also not be extended to the applicant on the basis that applicant had earlier approached before the Hon’ble High Court and stay order was granted in his favour. A perusal of the record reveals that the writ petition pending before the Hon’ble High Court was dismissed directing the applicant to approach before the appropriate forum.
The sum and substance of the analysis made hereinabove is that applicant was original resident of State of Rajasthan belonging to caste Sahariya which is the sub caste of Ahariya under the group of ST community. He migrated to the State of UP in District Saharanpur. Scheduled/list promulgated by State of Uttar Pradesh also reveals that caste belonging to the applicant is not recognized within the District of Saharanpur, State of Uttar Pradesh. brochure relied upon by the learned counsel for the applicant could also be taken into consideration only to the extent that if applicant has migrated from the State of Rajasthan to State of Uttar Pradesh, his caste status shall remain intact in the State of Rajasthan only. He cannot claim the same status in the State of Uttar Pradesh except District Lalitpur. Had he been migrated to District Lalitpur State of Uttar Pradesh from Rajasthan, the result would otherwise. Issuance of caste certificate by the competent authority on the basis of wrong fact itself will not be sufficient to deem that caste certificate is guanine. Sufficient opportunity has been given to the applicant before passing the impugned order. Proper procedure has also been followed. Mere longevity in service will not create any right in favour of the applicant to continue in the service on the basis of fake and forge certificate. Government is not barred to take action in the facts and circumstances of the case irrespective of the fact that many more years have been passed after joining the service by the applicant. Mandate of Rule 43 of BSNL Conduct, Discipline Rules 2006 has also been followed as has been discussed hereinabove. Present matter was solely based on documentary evidence, thus, all the documents relied upon in the enquiry have been supplied to the applicant. No procedural defects have been found in conducting the enquiry. No relief has been granted to the applicant by the Hon’ble High Court in the writ petition filed by the applicant. Thus, keeping in view the above observations/discussion, we are of the view that OA is liable to be dismissed. Accordingly, OA is dismissed. All associated MAs stand disposed of. No order as to costs.