CWP No. 13187 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 13187 of 2010 Date of Decision: 9.09.2010 Deva Singh ...Petitioner Vs. Union of India & Ors. ...Respondents CORAM Hon'ble Mr.Justice Vinod K.Sharma Present: Mr.Shailendra Sharma, Advocate, for the petitioner. Ms.Sangeeta Dubey, Central Standing Counsel, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma, J . (Oral) The petitioner has invoked the writ jurisdiction of this court under Articles 226 and 227 of the Constitution of India, to challenge the order of his removal from service, Annexure P.4. CWP No. 13187 of 2010 2 Impugned order reads as under:- “ This is in continuation of order dated 22.6.2010 issued by this office. 02. The facts mentioned in the order dated 22.6.2010 issued by this office are not in accordance with the judgment dated 29.5.2008 rendered by Justice Permod Kohli of Punjab and Haryana High Court in CWP No.17452 of 1997. Hence, the undersigned cancels the order dated 22.6.2010 gives the facts given in the judgment dated 29.5.2008 passed by the Court, which are as under:- “The order of dismissal under the given circumstances is too harsh on the petitioner. Accordingly, I set aside the impugned order and direct the respondents to re-consider the question of quantum of punishment. Admittedly, dismissal from service has serious consequences and even deprives the petitioner of future government appointment. I am of the view that the petitioner should not be imposed the extreme penalty for his lapse for not producing the valid driving licence which was definitely possessed by him before his recruitment. I remit the case to respondent No.4 i.e. 55 Battalion CRPF for re- consideration of quantum of punishment. Respondent No.4 shall pass a fresh order of penalty in the light of observation made here in above within a period of 3 CWP No. 13187 of 2010 3 months from the date of receipt of a certified copy of this judgment. It is, however, made clear that the petitioner shall not be entitled to any monetary benefits from the date of dismissal till the date fresh order is passed by respondent No.4. In the event he is retained in service, the period shall be treated as dies-non.” 03. From the perusal of the above-mentioned facts, it is clear that the Court has not directed for reinstatement of number 911340715 Constable (Sector Driver) Dewa Singh, 55 battalion, CVRPF, but, it has been mentioned that the punishment awarded to him is more severe as compare to his misconduct, which renders him unfit for Govt. job in future and hence, I remand the matter back to Commandant 55 Battalion for re-consideration of the punishment by reducing/ suspending/ pardoning. The respondent No.4 shall pass the fresh order keeping in view the above-mentioned facts within three months from the date of receipt of this order. 04. Keeping in view the facts mentioned in his decision by Justice Permod Kohli, I the undersigned cancel the order dated 22.6.2010 issued by this office and pass the order, in view of facts mentioned above as under: 1. Keeping in view the judgment dated 29.5.2008 given by the court, no.911340715 Constable (sector Driver) Deva Singh of CRPF, who was CWP No. 13187 of 2010 4 earlier dismissed by the office order No.P8- 10/9655 ESTT-II, dated 17.2.1997 is hereby removed from service w.e.f. 17.2.1997 by reducing his sentence.” Brief facts giving rise to the filing of the writ petition are, that the petitioner was recruited as Constable (Sector Driver) by the respondents on 11.12.1991 after taking driving test and verifying all the documents i.e. driving licence, certificate etc. The petitioner after having been appointed was posted at Group Centre, CRPF, Pinjore for training, where he successfully completed the training. The petitioner thereafter remained posted at Group Centre, CRPF Pinjore for about one year and subsequently was sent to 91 BN CRPF, Taran Taran and then was transferred to Kalanaur in the State of Punjab and thereafter he remained posted at Srinagar. It was in the year 1996-97 that during the annual inspection, it was found that the driving licence of the petitioner on record at the time of recruitment was not genuine. The petitioner was issued a charge-sheet and a regular departmental inquiry was held. It was during the course of regular departmental inquiry that the petitioner submitted that he had applied for the driving license before the licencing authority, Patiala and also appeared in the driving test. However, before he could collect his driving licence he was recruited to CRPF and was sent to training and due to this reason he could CWP No. 13187 of 2010 5 not produce his driving licence. Genuine driving licence was produced before the Inquiry officer which was issued in the year 1991 and renewed in the year 1995. The Investigating Officer did not take into consideration the driving licence produced by the petitioner and held, that the charges against the petitioner were proved. The competent authority on the basis of inquiry report, dismissed the petitioner from service on 17.2.1997 The petitioner challenged the order of his dismissal by invoking the writ jurisdiction of this court by filing CWP No.17452 of 1997 which was allowed on 29.5.2008. The operative part of the order passed by this court reads as under:- “ I have heard learned counsel for the parties and perused the produced records. It is not in dispute that the petitioner secured the appointment as a driver in CRPF on the basis of a driving licence issued in the year 1987 by the Licensing Authority at Solan. His entire defence to the charge is that he was not aware of the fact that his driving licence was fake. According to him, he appeared in the driving test and after passing the same, the driving licence came to be issued. Except this statement, he has not given any circumstances as to how the fake licence came to be issued to him. It is also established on record that in the year 1987, the petitioner was 14 years of age when a license was issued in his favour. It is unimaginable that a person who obtained a licence at the age of 14 years still wants to believe this court that he was not aware of the fact that CWP No. 13187 of 2010 6 his licence was fake. There can be circumstances where a person could be misled by someone in issuing fake document. However, no such circumstance has been shown or indicated in the reply. During the course of inquiry, it has been established that the licence of the petitioner issued in the year 1987 is fake. It is also admitted case of the petitioner that he secured appointment on the basis of licence issued in the year 1987. Therefore, charge against him is fully established in the inquiry. Neither in the averments made in the writ petition nor during the course of arguments, legality and validity of the inquiry has been challenged. As a matter of fact, the inquiry and consequent orders have not been assailed on any legal ground or violation of principle of natural justice. It is settled principle of law that this court in exercise of jurisdiction under article 226 can only examine the manner of exercise of power by the authorities while initiating administrative action. Since there is no challenge to the inquiry report or the impugned order, I am unable to accept this contention of Mr.Majithia that he impugned order is liable to be set aside. Only argument advanced by Mr.Majithia is that the petitioner was having a valid driving licence at the time of recruitment, issued by the competent authority. This fact has also been established on record which means that the petitioner was a qualified driver at the time of his recruitment CWP No. 13187 of 2010 7 notwithstanding the fact that his licence issued in the year 1987 was fake. This is only the fact which can be considered in favour of the petitioner. In so far the validity of the impugned order is concerned, there is no scope for interference. The order of dismissal has been passed on the basis of valid inquiry but at the same time the fact remains that the petitioner was a qualified driver and was possessed of a valid driving licence at the time of his recruitment. Though, unfortunately he secured the job on the basis of a fake driving licence. I believe that under the peculiar facts and circumstances of the case when the petitioner was a qualified driver and his only omission was that he did not produce the valid driving licence at the time of his recruitment and rather produced a fake driving licence to secure the job. It is not the case that the petitioner was not eligible for the job. In view of the driving licence dated 12.10.1991, he was fully qualified for appointment as a Driver. Keeping in view this fact I am inclined to interfere in exercise of jurisdiction under Article 226. The order of dismissal under the given circumstances is too harsh on the petitioner. Accordingly, I set aside the impugned order and direct the respondents to re- consider the question of quantum of punishment. Admittedly, dismissal from service has serious consequences and even deprives the petitioner of future government appointment. I am of the view that the petitioner should not be imposed the CWP No. 13187 of 2010 8 extreme penalty for his lapse for not producing the valid driving licence which was definitely possessed by him before his recruitment. I remit the case to respondent No.4 i.e. 55 Battalion CRPF for re-consideration of quantum of punishment. Respondent No.4 shall pass a fresh order of penalty in the light of observation made here in above within a period of 3 months from the date of receipt of a certified copy of this judgment. It is, however, made clear that the petitioner shall not be entitled to any monetary benefits from the date of dismissal till the date fresh order is passed by respondent No.4. In the event he is retained inservice, the period shall be treated as dies-non.” The respondent being dissatisfied with the judgment of Hon'ble Single Bench and filed Letters Patent Appeal No.238 of 2008 Union of India Vs. Deva Singh. Hon'ble Division Bench also dismissed the appeal by observing as under:- “ Driving licence issued to the petitioner in the year 1987 was believed to be fake only on the ground that on the date of issuance of the same, he was 14 years of age, and hence, it could not have been issued to the petitioner. Admittedly, the petitioner undergone driving test. He had full knowledge of driving. Right from the date of his recruitment as Driver till the date of his dismissal, no accident was ever reported against the petitioner. He was found to be eligible for the job, hence we CWP No. 13187 of 2010 9 find no ground to interfere with view taken by the learned Single Judge. The appeal is dismissed.” The matter was reconsidered by the competent authority in pursuance to the decision of this court referred to above and order was passed ordering his reinstatement on 22.6.2010 by granting the following relief:- “1. No.911340715 Constable (sector Driver) Deva Singh be taken back again in service from the date he marks his presence at 55 Battalion CRPF, Bawana, Delhi-39. 2. The period from dismissal till reporting back inservice by No.911340715 Constable (Sector Driver) Deva Singh shall be considered as dies-non and he will not get any financial benefit, yet, as per Rule 54 of Order 3(1) of Government of India, the above mentioned Constable shall be entitled for pensionary benefit from the date of his initial appointment i.e. 11.12.1991 till one day prior to his dismissal on 17.2.1997 i.e. up to 16.2.1997. 3. No.911340715 Constable (sector Driver) Deva Singh is hereby directed to report this office within 30 days from there issuance of this letter.” Before order dated 22.6.2010 could be implemented in letter CWP No. 13187 of 2010 10 and spirit the impugned order referred to above was passed removing the petitioner from service. The competent authority has interpreted the judgment to mean, that the only relief to which the petitioner was entitled was, that he should not be debarred from other service, as the punishment awarded was disproportionate, to the misconduct alleged against him. This view is patently erroneous. Reading of the judgment of Hon'ble Single Bench and Division Bench referred to above show, that intention of the court was that keeping in view the service record and performance of the petitioner he should not be given severe punishment, and punishment in the nature of minor penalty could be imposed on him, otherwise there was no occasion for the court to have directed that the period from dismissal to reinstatement be not treated as duty period. For the reasons state above, the writ petition is allowed. Impugned order is set aside, and the order passed on 26.6.2010 by the competent authority is ordered to be restored, but with no order as to costs. 9.09.2010 (Vinod K.Sharma) rp Judge