Shambhu Nath Mishra vs Union Of India & Others

L. Narasimha Reddy, J

The applicant was appointed as a Constable in Delhi Police on 01.08.1986. A complaint was received stating that the applicant secured appointment by filing a fabricated certificate of Bihar Examination Board (BEB). Thereupon, a vigilance inquiry was conducted. A regular departmental inquiry was also initiated. Simultaneously, a criminal case was also filed. At one stage, the departmental proceedings which were in progress up to a certain stage, were deferred awaiting the outcome of the criminal case. Since it was getting delayed, the departmental proceedings were resumed. The Inquiry Officer (IO) submitted a report holding that the charge against the applicant as proved. The copy of the report was furnished to the applicant, and on consideration of the representation submitted by him, the Disciplinary Authority (DA) passed an order dated 20.06.2013 dismissing the applicant from service. An appeal was preferred against the order of dismissal, and that was also rejected on 09.07.2014.

The criminal case filed against the applicant was tried in FIR No.366/2004 by the Court of Additional Chief Metropolitan Magistrate (North) Rohini Courts, Delhi. Through its judgment dated 20.01.2018, the Criminal Court acquitted the applicant. Citing the judgment of the Criminal Court, applicant filed a representation before the DA with a prayer to recall the order of punishment. The DA passed a detailed order dated 08.03.2019. It is stated that in the inquiry it emerged that the date of birth of the applicant was 27.01.1965, and he appeared in the examination in 1982 but failed, whereas the applicant filed a fabricated document with date of birth 30.12.1964. Reference was also made to the record in the inquiry. It is further stated that the applicant did not challenge the order of dismissal beyond an appeal, and once it has become final, he cannot seek the modification thereof.

This OA is filed with a prayer to quash and set aside order dated 08.03.2019, and to direct the respondents to pay full wages with consequential benefits from 09.12.2004 to 20.06.2013, and to pay full salaries from 21.06.2013. He has also prayed that the period of suspension be treated as period, spent on duty.

The applicant contends that once he was tried in a criminal court on the same allegations, the order of dismissal was liable to be modified, and that the impugned order cannot be sustained in law.

The respondents filed a detailed reply. It is stated that the scope of departmental inquiry on the one hand and the criminal case on the other, are substantially different and the mere fact that the applicant was acquitted in the criminal case, does not result in a situation wherein, the order of dismissal must be recalled. It is also stated that in the departmental inquiry the charge framed against the applicant was held proved and that the order of dismissal has attained finality.

Today we heard Shri Arun Kumar and Shri Jatin Rane, learned counsel for the applicant, Shri S. K. Tripathi, learned counsel for respondent No.1 and Shri Jagdish N., learned counsel for respondents 2 & 3.

The applicant was appointed as a Constable way back in the year 1986 on the basis of a fabricated matriculation certificate said to have been issued by the BEB. Long thereafter, a complaint was received from one Dhoom Raj Mishra alleging that the applicant filed a fake document in support of his educational qualification. On receipt of the complaint, an attempt was made to locate the complainant, and not being successful therein, the department approached the BEB. It emerged that the date of birth of the applicant was 27.01.1965, and though he appeared in the examination in 1982, he failed. The certificate relied upon by the applicant is said to have been held as fabricated. After conducting a detailed inquiry, the respondents initiated disciplinary proceedings.

As observed earlier, the departmental inquiry was deferred for some time, awaiting the outcome of the criminal case. Since it was getting delayed, the departmental proceedings were resumed. The Officer who approached the BEB to verify the record was examined as a witness and he filed certain documents. It was held that the charge against the applicant was proved and accordingly the applicant was dismissed from service through order dated 08.03.2019.

It is no doubt true that the applicant availed the remedy of appeal, and that was rejected on 09.07.2014. However, he did not challenge the order of dismissal, either at that stage or even, in the present OA. What is challenged in the OA is the order dated 08.03.2019 passed by the DA on a representation submitted by the applicant after he was acquitted in the criminal case. Notwithstanding the technicalities, we proceed to examine whether a case is made out for recalling the order of dismissal.

It is true that where the same set of allegations gives rise to disciplinary proceedings on the one hand, and the criminal proceedings on the other, the acquittal of the employee in the criminal case must enure to his benefit, and the departmental proceedings have to give way. Reference in this context, can be made to the judgment of Full Bench of this Tribunal in OA No.2816 of 2008 (Sukhdev Singh and another vs. GNCT of Delhi & ors. decided on 18.02.2011). In the instant case, however, the allegation in the criminal case was about cheating, whereas in the departmental proceedings, it was about the correctness or otherwise of the certificate relied upon by the applicant.

The applicant was given adequate opportunity at every stage, and a finding was recorded to the effect that the charges framed against him are proved. A copy of the report of the IO was furnished to the applicant, enabling him to file a representation. He raised only two objections. The first is about the identity of the complainant and the second is about the propriety of relying upon the statement of Inspector who conducted the inquiry. The applicant did not make an effort to establish that the certificate relied upon by him is genuine. He did not examine any witness, nor did he summon any record from the department. Once, the finding was recorded in the disciplinary proceedings, the subsequent acquittal and the charge of cheating would not be of much help to the applicant. The reason is that nature of allegations in the said proceedings is substantially different.

We do not find any merit in the OA. It is accordingly dismissed. There shall be no order as to costs.