Union of India vs Surendra Kumar

Bela M. Trivedi, J.—None of the advocates for the parties is present due to the call of strike given by the Bar Association.

At the outset it is required to be mentioned that the first appeal was directed to be listed for final hearing in the fourth week of March, 2013, considering the application bearing No. 11023/11 of the respondent seeking expeditious hearing. Again the first appeal was directed to be listed for hearing on 15.7.14 as per the request made by the respondent in Civil Misc. Application 12633/14. When the appeal was listed on 15.7.14, the parties were personally present, however had prayed for time and hence it was adjourned to 22.7.14. It appears that thereafter on 22.7.14 and on 31.7.14, the respondent had not remained present and matter was adjourned to 5.8.14. On 5.8.14, the court after granting full opportunity of hearing to Mr. Vikram Singh, Dy. Commandant, who was present on behalf of the appellant and the respondent Shri Surendra Kumar, had expressed its opinion that the appeal deserved to be allowed. The respondent therefore requested the court to grant a short time to make further submission, if any. The court considering his request kept the matter on 7.8.14. However on 7.8.14, the respondent did not remain present, and the court adjourned the matter on 12.8.14, on which date the wife of the respondent had remained present and sought time on the ground that the respondent was sick. The court therefore adjourned the matter on 21.8.14 with clarification that no further time shall be granted. On 21.8.14, son of the respondent Mr. Satyadev Singh, remained present and sought time. Since the court had already heard the respondent on 5.8.14 and thereafter the respondent did not remain present under one pretext or the other, the court had shown its reluctance in adjourning the matter, however considering the request of the son of the respondent, one last opportunity was granted upto 26.8.14 i.e. today.

Today again Mr. Satyadev Singh, son of the respondent, who is working as Reader in Third Battalion, Vikaspuri, Delhi, has requested the court to adjourn the matter on the ground that he has already moved an application in the office seeking transfer of this case to some other court. His request for adjournment is rejected in view of the above stated facts, and following order is passed.

The present first appeal arises out of the judgment and decree dated 29.2.92 passed by the Addl. District Judge No. 2, Ajmer (hereinafter referred to as ''the trial court'') in Civil Suit No. 87/85, whereby the trial court had decreed the suit of the respondent-plaintiff declaring the order dated 19.11.83 terminating the services of the respondent-plaintiff and the order dated 28.4.84 passed by the appellate authority as null and void and directed the appellants-defendants to reinstate the respondent-plaintiff as Pharmacist with effect from 20.11.83 and pay him backwages of Rs. 10,221/- and other pending benefits.

The short facts giving rise to the present appeal are that the respondent-plaintiff had filed the suit before the trial court alleging inter alia that he was appointed as temporary Pharmacist (unqualified) on 1.3.80 with Central Reserved Police Force (CRPF), prior to which he was serving as a Launce Nayak. When the Commandant 33rd Battalion, CRPF demanded the original certificate of Pharmacist from the respondent-plaintiff, he submitted a photostat copy of his Registration No. D-53552 dated 29.10.79 alongwith the letter dated 26.12.80. Since there was discrepancy between the attested copy of registration certificate submitted by the respondent-plaintiff at the time of his appointment and the photostat copy of the certificate dated 29.10.79 submitted subsequently, the respondent was asked to explain about the said discrepancy. Thereafter it appears that several communications had taken place between the Commandant and the respondent, and then the respondent produced the original registration certificate bearing No. D-53552 dated 29.10.79, on 16.10.82. Since the said certificate was subjected to renewal annually, the Commandant had again called upon the respondent to submit the proof of renewal of the said certificate, which the respondent did not produce. It appears that the said certificate was subsequently found to be a forged one and hence the Commandant directed for initiation of enquiry against the respondent under Rule 14 of the Central Civil Services (Control & Appeal) Rules 1965 (hereinafter referred to as ''the said Rules'') The respondent was served with the memorandum of articles of charges together with the statement of imputation of the alleged misconduct. After holding the departmental enquiry as per the Rules, the Commandant vide the order dated 19.11.83 had terminated the services of the respondent, against which the respondent had preferred an appeal to the Dy. Inspector of General of Police, CRPF, Ajmer Range, Ajmer. The said appeal also came to be dismissed vide the order dated 23.4.84. The respondent-plaintiff therefore filed the suit challenging the said orders passed by the appellants-defendants on the ground that the same were passed in violation of the principles of natural justice and therefore were null and void. The suit was resisted by the appellants-defendants by filing the written statement denying the allegations made in the plaint and further contending inter alia that the enquiry was conducted as per Rules after following the due procedure and after granting full opportunity to the respondent-plaintiff. The trial court after appreciating the evidence on record decreed the suit as stated hereinabove. Being aggrieved by the same, the appellants have preferred the present appeal.

It is sought to be submitted by Mr. Vikram Singh for the appellants that the trial court did not have the jurisdiction to sit in appeal over the termination order passed by the appellants in the departmental proceedings conducted as per the Rules. He further submitted that the concerned authorities of the appellants after due enquiry had come to the conclusion that the registration certificate of pharmacy dated 29.10.79 submitted by the respondent-plaintiff was false and forged one, and therefore he was removed from service on the ground of having committed gross misconduct. Relying upon the relevant provisions of the said Rules, and the documents on record, he submitted that the appellants had duly followed the principles of natural justice by supplying all the documents relied upon by the department during the course of enquiry and the respondent had never made any complaint as regards the non-supply of the documents. He also submitted that there was no need to issue second show cause notice before imposing the penalty as per the Rules.

However, the respondent Mr. Surendra Kumar, who was present in the court on 5.8.14 had submitted that the trial court having rightly appreciated the evidence on record, this court should not interfere with the just decision of the trial court. He also submitted that he was appointed as unqualified pharmacist, for which no certificate was required and that he had not committed any forgery as alleged by the appellants. In short, he has fully supported the judgment and decree passed by the trial court.

Having regard to the submissions made by the parties and to the documents on the record as well as the impugned judgment and decree passed by the trial court, the point for determination that arises before this court is as to whether the orders passed by the disciplinary authority as well as by the appellate authority were liable to be set aside on account of the same being in violation of the principles of natural justice?

It appears that the departmental enquiry was initiated against the respondent-plaintiff mainly on the charge that the respondent had committed misconduct by submitting forged pharmacy registration certificate No. D-53552 dated 29.10.79 of West Bengal Pharmacy Council, Calcutta, which according to the department was originally issued in the name of one Surendra, and the respondent had inserted the words "kumar yadav", so as to show that the said certificate was issued in his name, for being appointed on the post of Pharmacist. The appellants after holding regular departmental enquiry terminated the services of the respondent vide order dated 19.11.83. The said order having been challenged by the respondent before the appellate authority, the said appeal was also rejected vide the order dated 23.4.84. The said orders passed by the disciplinary as well as by the appellate authority having been challenged by the respondent-plaintiff before the trial court, the said orders have been declared null and void by the trial court on the ground of having been passed in violation of the principles of natural justice. Now, considering the impugned judgment and decree passed by the trial court, it appears that the trial court had found that there was violation of the principles of natural justice as the appellants had failed to appoint the defence nominee to assist the respondent in the enquiry; the appellants had failed to supply the documents on which they had placed reliance, for non-examination of the concerned persons of the West Bengal Pharmacy Council, Calcutta and for non-issuance of second show cause notice before imposing the major penalty. Though the respondent-plaintiff had also sought to support the impugned judgment and decree passed by the trial court by submitting that there was violation of the principles of natural justice, this court does not find any substance in any of the submissions made by the respondent.

As rightly relied upon the Rule 14 of the said Rules by the appellants, there was no duty cast upon the appellants to appoint the defence nominee for the respondent. As a matter of fact, it was the enabling provision made in sub-rule 8 of Rule 14 of the said Rules, that if the Government servant wanted to take assistance of any other Government servant to present the case on his behalf he could do so. It was nowhere made mandatory on the part of the department to appoint defence nominee for the respondents. So far as the non-supply of the documents relied upon by the appellants in the departmental proceedings is concerned, there is nothing on record to suggest that the appellants had not furnished the documents as demanded by the respondent. The respondent himself had admitted in his evidence before the trial court that he had not made any demand of any such documents, which were not supplied by the appellant-department. It is also a matter of surprise that the trial court has observed that right of the respondent was prejudiced as the appellants-department had failed to examine the concerned officer of the West Bengal Pharmacy Council, Calcutta to prove the genuineness of the certificate produced by the respondent. It is axiomatic that it is the party who produces the document has to prove the same by examining the concerned witnesses and not the other party. The said certificate having been produced by the respondent himself, it was his duty to examine the concerned person who had issued the said certificate from the concerned pharmacy council and not for the appellants to call for any such witness.

It is also settled legal position that the scope of judicial review in case of departmental enquiry is very limited and the courts can neither review nor sit in appeal over the decision of the disciplinary authority. The courts also cannot re-appreciate the evidence or examine the inadequacy of the evidence laid by the parties in the departmental proceedings. Beneficial reference of the decisions of the Apex Court in case of State of Andhra Pradesh and Others Vs. Chitra Venkata Rao, and in case of State of U.P. and Another Vs. Man Mohan Nath Sinha and Another, be made in this regard. In view of the said settled legal position, the court is of the opinion that the findings recorded by the trial court as regards the violation of the principles of natural justice at the instance of the appellants are totally perverse and illegal.

The trial court has also observed that the impugned orders passed by disciplinary authority as well as by the appellate authority were vitiated on account of non-issuance of second show cause notice to the respondent before imposing penalty on him. In this regard Mr. Vikram Singh for the appellants has rightly drawn the attention of the court to the relevant rule i.e. sub-rule 4 of Rule 15 of the said rules, in which it has been specifically stated that it shall not be necessary to give the Government servant any opportunity off making representation on the penalty proposed to be imposed by the department. The trial court has thoroughly overlooked the provisions contained in the said Rules and recorded the findings which could not be countenanced. Having regard to the seriousness of the misconduct committed by the respondent, the trial court ought not to have interfered with the decision of the disciplinary authority to terminate the services of the respondent. The order of reinstatement with direction to pay all backwages and perquisites to the respondent, without any justifiable reason also suffers from gross illegality and perversity.

In that view of the matter, the court is of the opinion that the findings recorded by the trial court being perverse and illegal, the impugned judgment and decree passed by it deserve to be set aside and is hereby set aside. The suit of the respondent-plaintiff is dismissed. The appeal stands allowed accordingly.