1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5413 OF 2001 Uday Jambawalikar ..... Petitioner. V/s H.A. Yadav, Director of Printing, Ministry of Urban Affairs & Employment & another. ..... Respondents. ----- Mr. K.S. Bapat for the petitioner. Mr. P.M. Pradhan with Mr. P.A. Dubey i/b Mr. H.D. Rathod for respondent Nos. 1 and 2. ---- CORAM : D.K. DESHMUKH & V.M. KANADE, JJ. DATE : 15 th February 2008. P.C.: 1. By this Petition, the petitioner challenges the order passed by the Central Administrative Tribunal in Original Application No.1202 of 2006. That Original Application was filed by the petitioner challenging the order passed by his employer, removing him from service on the ground that the misconduct is proved against the petitioner. 2. The petitioner was appointed as Machine Operator, Grade-II with effect from 16/10/1978 in the Office of the 2 Officer-in-charge, Government of India, Patent Printing Press. A departmental inquiry was started against the petitioner. There were three charges levelled against the petitioner but we are not concerned with all the three charges, because he has been exonerated of Charge No.3. We are, therefore, concerned with Charge Nos. 1 and 2. Charge Nos. 1 and 2 read as under:- "ARTICLE-I That the said Shri U.S. Jambawalikar, Machine operator Offset Grade-II has furnished the false information at the time of entry into Government service claiming that he belongs to S/C Community in order to secure Government employment. ARTICLE-II That Shri U.S. Jambawalikar, Machine Operator Offset Gr.II has furnished incorrect particulars regarding his experience in column No.11 of the attestation form filled up by him at the time of his entry into Government service so as to make himself eligible for appointment as Machine Operator Offset Gr.II." 3. The Inquiry Officer held that the correspondence 3 between the Government and the revenue authorities, Karnataka, the State from which the petitioner hails, shows that the claim of the petitioner that he belongs to "Bandi" Community is false and, therefore, the charge that he has submitted a false certificate for securing employment is proved. The Inquiry Officer also found that the petitioner has submitted incorrect information in relation to his experience and that, at the time of appointment, he was not having the requisite experience. These findings were accepted by the Disciplinary Authority and he was removed from service. The appeal filed by the petitioner also failed and, therefore, Central Administrative Tribunal was approached. The Central Administrative Tribunal also dismissed the application and hence the petitioner has approached this Court. 4. The learned Counsel appearing on behalf of the petitioner submits that the petitioner has submitted a Certificate from the Tahsildar, Karwar, certifying that he belongs to "Bandi" Community which is a Scheduled Caste. He submits that the post against which he was appointed is not reserved for Scheduled Caste. At no point of time any competent authority has held inquiry into the validity of the Caste Certificate submitted by the petitioner and recorded a finding that the Caste Certificate of the petitioner is invalid or false. In the submission of the learned Counsel, therefore, Charge No.1 could not have been held to have been proved against the petitioner. He further submitted that the Central 4 Administrative Tribunal, while accepting the submissions made on behalf of the respondents that the Charge No.1 has been proved, has relied upon the letter alleged to have been received from the revenue authorities by the respondents but, that letter, admittedly, was subsequent to the inquiry and it was written to the respondents and not to the petitioner and, therefore, there was no question of the petitioner challenging that letter. The learned Counsel submits that the reason given by the Central Administrative Tribunal for holding that the Charge No.1 has been proved, suffers from non-application of mind. So far as the Charge No.2 is concerned, the learned Counsel submits that the petitioner has made a claim that he was having required experience and he had submitted all the certificates in support of his claim. According to him, it was for the authorities to verify from the certificates whether the petitioner had requisite experience or not. In the submission of the learned Counsel, making a claim that he had requisite experience would not amount to misconduct. He submits that the reason given by the Tribunal in relation to Charge No.2 also suffers from non-application of mind to the material on record. 5. We have heard the learned Counsel appearing for the respondents. The learned Counsel submitted that the authorities from Karwar had informed the respondents that the Caste Certificate relied upon by the petitioner was not correct and the petitioner belongs to "Bhandi" Caste and not 5 "Bandi" Caste. According to the learned Counsel, "Bhandi" Caste is not a Scheduled Caste and, therefore, the authorities and the Tribunal were justified in holding that Charge No.1 has been proved against the petitioner. The learned Counsel, however, fairly conceded that the letter which has been referred to in the order of the Central Administrative Tribunal in para 25 was received subsequent to the departmental inquiry. So far as the Charge No.2 is concerned, the learned Counsel submits that the order of the Tribunal is perfectly valid because the petitioner claimed that he had requisite experience when, in fact, he did not possess the requisite experience. 6. In the light of these rival submissions, if one peruses the record, it becomes clear that there is no document placed on record which will show that the post against which the petitioner was appointed was reserved for Scheduled Caste. Had the post been reserved for Scheduled Caste, it may have been possible to say that the petitioner made an attempt to secure the post by submitting false Caste Certificate. It is on record that in the School Leaving Certificate of the petitioner, his Caste is mentioned as "Bandi" which, admittedly, is a Scheduled Caste, probably because the Certificate that was issued by the Tahsildar was based on the entries in the school record of the petitioner. Therefore, the Caste Certificate submitted by the petitioner certifying that he belongs to "Bandi" Caste agreed with the entries in the School Register. It is also an admitted position 6 that, at no point of time, either Tahsildar who issued the Certificate that the petitioner belongs to "Bandi" Scheduled Caste or any other competent authority has cancelled the Caste Certificate issued in favour of the petitoiner. In our opinion, therefore, there was no justification for the Inquiry Officer to hold that Charge No.1 is proved against the petitioner. So far as the order of Tribunal is concerned, the Tribunal appears to have misguided itself. The Tribunal has gone to the extent of saying that it was for the petitioner to challenge the communication from the revenue authorities to the respondents that he belongs to "Bhandi" Community when, admittedly, that communication was received by the respondents after conclusion of the inquiry and that letter was not addressed to the petitioner. We find considerable substance in the submissions of the learned Counsel appearing on behalf of the petitioner that the order of the Central Administrative Tribunal in this regard suffers from non-application of mind to the relevant material on record. So far as Charge No.2 is concerned, all that the Central Administrative Tribunal has said is that in view of the complaint received, the respondents collected information and, on the basis of that information, they found that the claim made by the petitioner that he had requisite experience was not correct and, therefore, Charge No.2 is proved. We find that the reason given by the Tribunal is incapable of being accepted. The name of the petitioner was recommended by the Employment Exchange. The petitioner, therefore, applied and he claimed that he had the 7 experience that was required for being appointed to the post. In support of his claim, he submitted certificates. Then, it was for the Officer to verify from the certificates whether he had requisite experience or not. There is no question of the petitioner making any false claim. Whatever claim the petitioner had made, he had submitted the documents in support of that claim. It is nobody's case that the documents submitted by the petitioner in support of his claim that he possesses necessary experience were false. In our opinion, therefore, merely claiming that he had requisite experience and producing certificates in support of his claim would not amount to misconduct, even if it is found that the certificates do not show that he had requisite experience. Whether the petitioner had requisite experience or not was for the authorities to find out on the basis of documents submitted by him and also by collecting information from the persons who had issued the certificates. Taking an over all view of the matter, therefore, in our opinion, Disciplinary Authority as also the Central Administrative Tribunal were not justified in holding that the Charge No.2 is proved against the petitioner. As we find that both the charges are not proved against the petitioner, the order imposing punishment of removal from service, will have to be set aside. The petitioner would be entitled to reinstatement. So far as the question of back wages is concerned, as we find that the order removing the petitioner from service was absolutely unjustified, in our opinion, the petitioner would be entitled to full back wages. An affidavit has been filed by the 8 petitioner before us, showing that he was doing some work and he was earning some amounts but we do not propose to hold inquiry into that aspect of the matter. In our opinion the best course of action to follow is to direct the respondents to hold an inquiry and find out how much the petitioner was earning during the period he was removed from the service till he was reinstated in service. In our opinion, therefore, the following order would meet the ends of justice:- O R D E R (i) Rule in the Petition is made absolute in terms of prayer clause (a). (ii) The order removing the Petitioner from service is set aside. (iii) Respondents are directed to reinstate the petitioner with full back wages. However, the respondents shall hold an inquiry to find out as to how much amount was being earned by the petitioner during the period he was removed from the service till he was reinstated in service. The amount that may be arrived at by the respondents, after holding the inquiry, shall be deducted from the amount payable to 9 the petitioner as back wages. (iv) Respondents are directed to reinstate the petitioner within a period of eight weeks from today. It is further directed that the inquiry which is directed to be held by the respondents for the purpose of calculating the amount of back wages shall be completed within a period of eight weeks from the date of reinstatement and payment shall be made to the petitioner. (v) No order as to costs. (D.K. DESHMUKH, J.) (V.M. KANADE, J.) 10