IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 11183 of 2008 Date of Decision: 24.3.2009 Rattan Singh ---Petitioner Vs. State of Punjab and others ---Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. H.S. Saini, Advocate for the petitioner. Ms. Charu Tuli, Sr. D.A.G, Punjab. *** PERMOD KOHLI.J (ORAL) Order of dismissal dated 12.12.2005 (Annexure P-7) and the order dated 10.1.2007 (Annexure P-9) passed by the Appellate Authority are under challenge in the present writ petition. It may be useful to briefly notice the facts of the case. Petitioner, whose real name is Ratan Singh has another brother Prem Singh. They are twins. It appears that both of them applied for appointment in the Department of Weights and Measures, Punjab. Prem Singh had also applied for the post in Central Excise and Customs Department. He was selected for both the posts. He received the appointment letter from the Central Excise and Customs Department and joined the said service. Since, he was also selected for the post of Manual Assistant in the Department of Weights and Measures, the said letter was posted at the village address of Prem Singh. The present petitioner Ratan Singh taking advantage of the appointment of Prem Singh joined the CWP No. 11183 of 2008 -2- Weights and Measures Department in the name of Prem Singh and also used his certificates to secure the entry in the Govt. service in the year 1974. Later Prem Singh was regularised in the year 1975 and petitioner continued to work representing himself as Prem Singh in the department. In the year 2002 petitioner applied for voluntary retirement and served a notice dated 10.6.2000 seeking his relief on voluntary retirement w.e.f. 21.8.2002. While his request for voluntary retirement was pending the Department of Weights and Measures seems to have received a report from the A.D.G.P (Vigilance), Punjab regarding the fraudulent entry of the petitioner in the name of Prem Singh. Based upon the said report, petitioner was placed under suspension w.e.f. 9.9.2002. His suspension was followed by memo of charge sheet dated 27.1.2003 with the following charges:- “ 1. That your original name is Rattan Singh, but you are doing service in the name of your brother as Prem Singh as Manual Assistant since 1974. Thus you have drawn/drawing salary from Punjab Govt. Exchequer wrongly. 2. In the village voter list, names of Rattan Singh and Prem Singh have been entered separately. Rattan fraudulently intimated his age as 52 years & Prem Singh as 47 years. Whereas actually Rattan Singh and Prem Singh are twin brothers and their age as per Punjab Vote List of area Anandpur Sahib 1999 part 121 at that time becomes 50 years. 3. You have got Ration Card in the village in your original name Rattan Singh by giving your profession as Agriculture but in the Department you have been working in the name of Prem Singh as Manual Assistant.” CWP No. 11183 of 2008 -3- The department also lodged FIR No.20 dated 1.8.2003 under Sections 409, 419, 420, 467, 468, 471, 120-B IPC and Section 13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act at Police Station Vigilance Bureau, Mohali. On completion of investigation a charge sheet has been filed in the Court and petitioner and Prem Singh his brother are facing the criminal charge. The petitioner and his brother were however admitted to bail. After soliciting the reply from the petitioner and being dissatisfied from the reply, an Enquiry Officer was appointed vide order dated 13.8.2004. The Enquiry Officer submitted his report dated 22.12.2004 on culmination of the enquiry. The Enquiry Officer has reported that the charges against the petitioner stand proved. Based upon the enquiry report, the disciplinary authority served a show cause notice dated 4.3.2005 upon the petitioner seeking his explanation and also proposed to initiate action for imposing major penalty of dismissal. Petitioner's reply was asked for within 21 days. The petitioner has submitted his reply and on consideration of the enquiry report and reply the competent authority passed the impugned order dated 12.12.2005 dismissing the petitioner from service and simultaneously Rs. 8,11,723/-, the salary drawn by the petitioner has also been ordered to be recovered from him. The petitioner challenged the order of termination in CWP No. 15004 of 2007, which was later withdrawn with liberty to avail the appellate remedy as is evident from the order dated 25.9.2007 passed in the aforesaid writ petition. It has been alleged in the writ petition that when the aforesaid writ petition was withdrawn, petitioner had already preferred an appeal, CWP No. 11183 of 2008 -4- however, this fact was not brought to the notice of the Court by his counsel. However, the appeal preferred by the petitioner was later on filed in view of the pendency of criminal case against him as was communicated to the petitioner vide memo dated 10.12007. The orders impugned have been challenged on the following grounds:- (1) That the enquiry has been conducted in pre-determined and biased manner. (2) That the enquiry and all departmental proceedings are vitiated for non-payment of the subsistence allowance during the period of suspension. No material or even specific allegations have been made in the writ petition to establish the pre-determined and biased approach of the Enquiry Officer nor this ground has been pursued during the course of the arguments. The entire thrust and emphasis of the arguments of the petitioner is based upon non-payment of subsistence allowance during the period of suspension. It has been vehemently argued by the learned counsel for the petitioner that during the period of suspension the petitioner had not been paid the subsistence allowance. The non-payment of the subsistence allowance itself is sufficient to vitiate the enquiry proceedings and the consequential disciplinary action against the petitioner. To substantiate the contention the petitioner has referred to and relied upon a judgement of the Hon'ble Apex Court reported as (2000) AIR (SC) 2806. In the aforesaid case the delinquent official/Sub Inspector was placed under suspension on 1.6.1977 and was transferred to Gorakhpur, CWP No. 11183 of 2008 -5- another place to face disciplinary proceedings. He did not participate in the enquiry proceedings allegedly on account of illness and confined for medical treatment at Kanpur and also on account of financial crunch for non-payment of subsistence allowance. The departmental enquiry was held ex-parte and the delinquent official was dismissed from service. After exhausting the appellate and other remedies, the order of dismissal was challenged in the writ petition. The main contention of the petitioner in the writ petition was that on account of his non-payment of subsistence allowance from the date of suspension till his removal, he could not participate in the departmental enquiry and thus the enquiry stood vitiated for denial of reasonable opportunity. The High Court rejected the contention and dismissed the writ petition and his appeal preferred before the Hon'ble Supreme Court was allowed with the following observations:- “ The payment of subsistence allowance in accordance with the Rules, to an employee under suspension is not a bounty. It is a right. An employee is entitled to be paid the subsistence allowance. No justifiable ground has been made to for non-payment of the subsistence allowance all through the period of suspension i.e. From suspension till removal. One of the reasons for not appearing in enquiry as intimated to the authorities was the financial crunch on account of non-payment of subsistence allowance and the other was the illness of the appellant. The appellant in reply to show cause notice stated that even if he was to appear in enquiry against medical advice, he was unable to appear for want of funds on account of non-payment of subsistence allowance. It is a clear case of breach of principles of natural justice on account of the denial of reasonable opportunity to the appellant to defend himself in the departmental enquiry. CWP No. 11183 of 2008 -6- Thus, the departmental enquiry and the consequential order of removal from service are quashed.” The aforesaid judgement has no application to the facts of the present case. In the present case non-payment of subsistence allowance was never set up as a ground for non-participation. To the contrary, the petitioner participated in the enquiry all along. This fact is admitted by the petitioner in para 17 of the writ petition, which reads as under:- “ That in the charge sheet dated 27.1.2003 vide office order dated 13.8.2004, Sh. Joginder Pal Singh Puri, IAS (Retd.) was deputed as Enquiry Officer to find out the truth. In the said enquiry, the petitioner very sincerely and honestly co-operated with the Enquiry Officer who submitted a report dated 22.12.2004.” It is not the case of the petitioner that non-payment of subsistence allowance has in any manner prevented him from participation in the enquiry or defending the charge. The aforesaid judgement, thus, cannot come to the rescue of the petitioner as the same is based upon totally different and distinct facts and circumstances. There is another reason not to accept the contention of the petitioner. The petitioner cannot be termed as a public servant. He was never selected or appointed for the post. To the contrary, his brother Prem Singh was appointed and petitioner fraudulently in connivance with his brother by impersonating as Prem Singh entered the Govt. service in the name of Prem Singh. The petitioner has specifically admitted in the writ petition that his real name is Ratan Singh. Though, he has been serving as Prem Singh and all along signing and representing as Prem Singh. It has come on record during the course of the enquiry that the petitioner and his CWP No. 11183 of 2008 -7- brother Prem Singh have played fraud with the Govt. Though, they are twin brothers and their date of birth is 1.6.1949, they have shown different age in the voter list. The petitioner has shown his age as 47 years whereas Prem Singh has shown his age as 45 years. Even, when the petitioner applied for Ration Card in the year 1995 to the Food and Supply Department, he has shown himself as Agriculturist, whereas, he was serving as Manual Assistant and was drawing salary from the State Govt. The petitioner took a defence before the Enquiry Officer that his name was wrongly mentioned as Prem Singh in the appointment letter. The Enquiry Officer, however, recorded specific finding that he joined the Govt. service in the name of Prem Singh and no attempt was made either before the appointment or during his entire service for amendment of the appointment letter rather he represented himself as Prem Singh and drawn his salary in the said name all along. It was only when the allegation against the petitioner came to notice of the department that he started writing as Ratan Singh @ Prem Singh. However, prior to that, he never signed or wrote his name as Ratan Singh @ Prem Singh. Even in the reply to the charge sheet the petitioner has admitted that his real name is Ratan Singh and Prem Singh is his brother. In view of the clear findings the fraud played by the petitioner in connivance with his brother Prem Singh has been totally established. In my humble view the petitioner is not even entitled to protection under Article 311. It is only the genuine public servant who is entitled to protection under Article 311. Petitioner is an imposter and secured entry in the Govt. service by impersonation and fraudulent manner. He cannot be permitted to take refuge under Article 311. In any case he was served with a proper charge sheet and a departmental enquiry was held in accordance CWP No. 11183 of 2008 -8- with rules except imputing pre-determined, bias, there is no other ground to assail the enquiry. Even on the basis of admissions made by the petitioner during the course of the enquiry and in the present petition the charge against him is proved. There is no merit in this petition and the same is accordingly dismissed. (PERMOD KOHLI) JUDGE 24.3.2009 lucky