Murari Lal Mishra (Died On 8.7.2023) vs Union Of India & Ors

Om Prakash-VII, Member (J)

The present O.A. has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 with the following prayers:-

i) To quash the impugned orders dated 14.2.2012, Appellate order dated 7.3.2012, revision order dated 25.9.2012 and order dated 20.9.2018 with all consequential benefits.

ii) To pay the all retiral dues and pension, its arrears along with 12% interest per annum from due date up to actual payment date in favour of the applicant.

iii) To pass any such further order as deem fit in the facts and circumstances of the case.

iv) Award the cost of the petition in favour of the applicant.

The relevant facts of the case are that applicant was duly selected on the post of Commercial Clerk through Railway Service Commission and posted in Jhansi Division on 28.12.1979. At the time of entry in service, the date of birth of the applicant was recorded in the service register as 11.3.1954 as per original high school certificate and the same date of birth was verified. On the basis of complaint, a letter was sent to Secretary, Madhyamik Shiksha Parishad, U.P. Allahabad for verification of date of birth and the same was verified as 11.3.1954 by the Upper Secretary Madhyamik Shiksha Parishad and by college. On the basis of verification report, a major penalty charge sheet dated 13.10.2011 was issued by the DOM Jhansi to the applicant. On the next day, i.e. on 14.10.2011 another charge sheet was issued by Sr. DOM, Jhansi without cancelling the first charge sheet which was issued on the same set of facts. Enquiry Officer was appointed on 28.10.2011. Applicant required some documents like RRB form of the applicant for verification of date of birth but same has been declined by the inquiry officer. Enquiry Officer submitted the inquiry report on 22.12.2011 in which all the charges leveled against the applicant has been proved. Applicant submitted defense note dated 4.1.2012. On the basis inquiry report, disciplinary authority has passed the impugned order dated 14.2.2012 and imposed penalty of dismissal from service without taken any advice from the UPSC as per rules. Applicant preferred appeal dated 28.2.2012, which was rejected vide order dated 7.3.2012. Applicant preferred revision which was also rejected vide order dated 25.9.2012. Applicant filed O.A. No. 3931 of 2012 before CAT, Principal Bench which was disposed off vide order dated 1.8.2018 with direction that “respondents shall send a team of three officers within four weeks from today to the officer of Secretary, Madhyamik Siksha Parishad U.P. to pursue the original records relating to the date of birth of the applicant. The team shall submit report to the concerned authority within four weeks thereafter. The applicant, if he so wishes could also be associated with the visit of the team. Based upon the report of the team, the respondent shall pass a fresh order; and In case, it is established that the applicant’s date of birth is 11.3.1954 then the applicant shall be entitled to all consequential benefits. In pursuance of the aforesaid order, team of officer was constituted and after perusal of record, committee has submitted report that the date of birth of the applicant was found as 11.3.1951 in the Board record and not 11.3.1954. In pursuance of the committee report, Senior DOM has passed speaking order dated 20.9.2018 against the applicant.

Per contra, learned counsel for the respondents filed counter reply, stating therein that by means of the present O.A., applicant has challenged the impugned orders dated 14.2.2012, 7.3.2012, 25.9.2012 and 20.9.2018. It is pertinent to mention that that applicant has already challenged the three orders dated 14.2.2012, 7.3.2012 and 25.9.2012 in O.A. No.3931 of 2012 filed before the CAT, Principal Bench which was decided on 1st August, 2018 and in compliance of the order passed by the Tribunal, respondents vide order dated 25.9.2012 passed a detailed and speaking order. It is further submitted that the charge memorandum was erroneously issued by the DOM , Jhansi and applicant was in grade pay of Rs. 4200 and as per DAR 1968 Schedule II, only JA grade officer was bestowed with power to issue SF-5 to employee of grade pay of Rs. 4200/-. Hence the same charge sheet was cancelled and the fresh charge sheet was issued under the signature of Senior DOM, Jhansi. Vide letter dated 14.10.2011 by which charge sheet has been withdrawn is annexed as CA-1. It is submitted that necessary documents and witnesses were provided by the inquiry officer. It is further submitted that in compliance of the order of Principal Bench, New Delhi , a team of the officers have been sent for verification to Madhyamik Shiksha Parishan, Allahabad and they have submitted their report and after perusal of the report only the order dated 20.9.2018 has been passed by Senior DOM, Jhansi.

Heard learned counsel for the parties.

Submissions of the learned counsel for the applicant is that first major penalty charge sheet dated 13.10.2011 was issued by DOM, Jhansi but on the next date on the same charges, second charge sheet dated 14.10.2011 was issued by Senior DOM, Jhansi without cancelling the first charge sheet. Therefore, the second charge sheet is illegal and not maintainable. It is further argued that complainant could not be traced on mentioned address and never appeared for proving the complaint during the enquiry. It is further argued that true date of birth 11.3.1954 has been mentioned by the applicant at the time of appointment as per High School Certificate. Applicant has annexed the High School Marksheet and certificate, in which date of birth of applicant has been mentioned as 11.3.1954. It is further argued that since the first charge sheet has not been cancelled, enquiry proceeding is bad in law. It is further submitted that penalty imposed against the applicant for dismissal from service is harsh and in place of dismissal, he should be retired compulsorily.

Learned counsel for respondents argued that applicant has filed O.A. No. 3931 of 2012 before CAT, Principal Bench which was disposed off vide order dated 1.8.2018 with direction that “respondents shall send a team of three officers within four weeks from today to the officer of Secretary, Madhyamik Siksha Parishad U.P. to pursue the original records relating to the date of birth of the applicant. The team shall submit report to the concerned authority within four weeks thereafter. The applicant, if he so wishes could also be associated with the visit of the team. Based upon the report of the team, the respondent shall pass a fresh order; and In case, it is established that the applicant’s date of birth is 11.3.1954 then the applicant shall be entitled to all consequential benefits.” In pursuance of the aforesaid order, team of officer was constituted and after perusal of record, committee has submitted report that the date of birth of the applicant was found as 11.3.1951 in the Board record and not 11.3.1954. In pursuance of the committee report, Senior DOM has passed speaking order dated 20.9.2018 against the applicant. Now, the applicant is raising the issue that before cancellation of first charge sheet, issuing second charge sheet is not maintainable. According to the respondents, first charge sheet was issued by the incompetent authority which was withdrawn vide letter dated 14.10.2011 (Annexure CA-1) and second charge sheet was issued by the competent authority. It is further argued that applicant has obtained the job by submitting false date of birth certificate which after verification was found incorrect. Hence, O.A. is liable to be dismissed.

We have considered the rival submissions of the parties and have gone through the entire record.

From perusal of record, it is evident that applicant was appointed as Commercial Clerk through Railway Service Commission. At the time of entry, his date of birth was recorded in the service registered as 11.3.1954 as per High School Certificate. On a complaint, first charge sheet was issued on 13.10.2011 which was withdrawn vide letter dated 14.10.2011 and fresh charge sheet was issued on 14.10.2011. Enquiry was conducted and on the basis of enquiry report, disciplinary authority passed the punishment of dismissal from service. Appeal and revision filed by the applicant has also been rejected. Earlier applicant had filed O.A. No. 3931/2012 before Principal Bench challenging the impugned orders dated 14.2.2012, 7.3.2012 and 25.9.2012, which was disposed of by the Principal Bench vide order dated 1st August, 2018 directed to send a team of three officers for verification. In compliance of the order of the Tribunal, three officers were sent to Office of Secretary, Madhyamik Shiksha Parishad, Uttar Pradesh who submitted report that the date of birth of the applicant was found as 11.3.1951 in the Board record and not 11.3.1954 whereas applicant has submitted High School Marksheet and certificate, in which his date of birth is mentioned as 11.3.1954. In that O.A., applicant has not raised the issue of without cancelling the first charge sheet, respondents have issued second charge sheet. Now, applicant has filed the present O.A. in the year 2019 challenging the same impugned orders after lapse of more than 9 years of passing of the impugned orders on the ground of issuance of 2nd charge sheet without cancelling the first charge sheet , which is not tenable in the eyes of law and also barred by limitation and barred by res-judicate. As far as order dated 20.9.2018, is concerned, the same has been passed on the basis of report submitted by the three officers who have been deputed to verify the date of birth of the applicant on the direction of order passed by the Principal Bench, therefore, we do not find any illegality in the order dated 20.9.2018 also. In addition to that, applicant has submitted false date of birth certificate at the time of appointment. O.A. lacks merit and deserves to be dismissed.

In the case of State of Manipur Vs. Y. Token Singh 2007(3) Scale 319, Hon’ble Apex Court has observed as under:-

“If the offers of appointments issued in favour of the respondents herein were forged documents, the State could not have been compelled to pay salaries to them from the State exchequer. ”

Accordingly, O.A. is dismissed.

As a sequel, Misc. Applications pending if any, in this case, shall also stands disposed off.

There shall be no order as to costs.