1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.1043(S/S)/2004 Bal Krishna S/o Late Shri Bharat Singh ………… Petitioner Versus Oil & Natural Gas Corporation Ltd. and others. ………… Respondents Hon’ble Tarun Agarwala, J. The petitioner has filed the present writ petition praying for the quashing of the order dated 9.12.2003 by which the petitioner was removed from the service in Oil and Natural Gas Corporation Ltd. at Dehradun (Hereinafter referred to as ‘O.N.G.C.’) as well as the appellate order dated 30th June, 2004. The brief facts leading to the filing of the writ petition is, that in May, 1959, Scheduled Castes and Scheduled Tribes Amendment Act, 1959 was issued in which the State Government of Uttar Pradesh specified a scheduled caste at serial no.27 known as Dhangar (/kuXkj), which was spelt in English as “Dhangar”. On the basis of this list, the petitioner applied for a scheduled caste certificate before the District Magistrate, Dehradun and, after due verification, the District Administration issued a caste certificate dated 12th March, 1975, indicating therein that the petitioner belongs to a ‘Dhangar’ caste. On this basis, the petitioner was given an employment in O.N.G.C. on 22.7.1982 as an Accountant Assistant grade-III against a reserved vacancy. It has been 2 stated that the petitioner was overage but was given a relaxation in his age, since he belonged to a reserved category. It transpires that some jealous persons filed a complaint to the employers intimating them that the petitioner was not a scheduled caste and that he had played a fraud in getting an employment in the reserved category and, on this complaint, the employers conducted an enquiry and charge- sheeted the petitioner. The Enquiry Officer after making due enquiries concluded the following: 1. That the caste certificate submitted by Shri Bal Krishna has been issued by the competent authority under Scheduled Caste and Scheduled Tribe (Amendment) Act, 1959 after due verification. 2. The caste certificate has been issued to Shri Bal Krishna on the basis of the facts that he belongs to ‘ Dhangar’ Caste (the Dhangar caste is a scheduled caste under Scheduled Caste and Scheduled Tribe( Amendment ) Act, 1959 as per “ Brochure on the Reservation for Scheduled Caste and Scheduled Tribes in Services” issued by the Government of India. 3. That he had no access to verify the basis of issuing the certificate by the Additional District Magistrate, Dehradun and therefore, if felt necessary, a reference may be made to the issuing authority for verification and confirmation. The authority, after considering the enquiry report, took up the matter with the issuing authority, namely, the 3 Addl.District Magistrate, who in turn certified that the said certificate was issued from their office and that the certificate given to the petitioner was a genuine one. On the basis of this clarification issued by the Addl. District Magistrate, Dehradun, the enquiry against the petitioner was dropped and the case was closed by an order dated 19th March 1993. The matter does not end here. It transpires that the Government issued a notification dated 9th March, 1978 indicating therein that the list published earlier indicating the various communities of Scheduled castes contained an error and that instead of Dhangar (/kuXkj), it should be read as Dhaangar (/kkaXkj) at serial no. 27 of the said list. Inspite of this clarification, no action was taken by the district administration. The State Government eventually issued a Government Order dated 8th April, 1994 issuing directions to all the District Magistrates of the State intimating them that wherever a wrong certificate has been issued to a person belonging to Dhangar (/kuXkj) caste, the said certificate should be cancelled. Based on the said Government Order, it transpires that the District Magistrate issued a letter dated 13th February, 1995 intimating the petitioner about the wrongful issuance of the certificate and directed him to return the original certificate failing which action would be taken as per law for the cancellation of the said certificate. The petitioner, upon receipt of the said certificate, returned the original certificate to the authority vide letter dated 23rd February, 1995 and a copy was also forwarded to the employers. Based on the said return of the certificate, the employers issued a show cause notice and initiated an enquiry afresh. The petitioner was charge-sheeted by an order dated 6th August, 1997. Four charges were leveled against him, namely: “Shri Bal Krishan while seeking employment and furnishing documents for appointment 4 in ONGC for the post of Accounts Assistant Grade III against reserved vacancy in theyear,1982 committed gross misconduct in as much as under;- 1. That, he with mala fide intention and ulterior motive fraudulently obtained/produced scheduled caste certificate from the office of the District Magistrate, Dehradun. 2. That, he with mala fide intention and ulterior motive, used the false scheduled caste certificate for seeking employment and obtained appointment against reserved vacancy in ONGC. 3. That, he with mala fide intention and ulterior motive, fraudulently and dishonestly declared himself to be of scheduled Caste of Dhangar community. 4. that, he with mala fide intention and ulterior motive, furnished false Scheduled Caste Certificate which has already been cancelled and he dishonestly suppressed the material information of cancellation of his Scheduled Caste Certificate. Thus, Shri Bal Krishan has obtained employment in ONGC for the post of Accounts Assistant Grade III against reserved post on the basis of false Scheduled Castes Certificate. He has thus failed to maintain absolute integrity and did acts unbecoming of an employee of the Company and has committed fraud and dishonesty and 5 furnished the false documents and intimation and suppressed the fact of cancellation of his Scheduled Caste Certificate. He thereby has committed gross misconduct and contravened the provisions of Rule 4(1), (a) &(c) read with S. Nos. 3 & 4 of Schedule (II) to Rule 3(j) of ONGC CDA Rules, 1994.” Against the issuance of the aforesaid charges, the petitioner filed a writ petition no. 31672 of 1997 before the Allahabad High Court in which an interim order dated 29th September, 1997 was granted staying the termination of the services of the petitioner. The court, however, directed that the departmental proceedings would continue. Upon the creation of the State of Uttarakhand on 9th November, 2000, the writ petition was transferred to this court and, by an order dated 8th April, 2003 the writ petition was dismissed on the ground that no writ petition lies against the issuance of a show cause notice. Subsequently, the enquiry proceedings started afresh. The petitioner submitted his reply and the Enquiry Officer took his evidence and eventually submitted his report. The Enquiry Officer summarized the aforesaid four charges into two parts. (a) That CO, with mala fide intention and ulterior motive, fraudulently obtained the scheduled caste certificate from the office of the District Magistrate, Dehradun by falsely declaring himself as a member of scheduled caste community ‘ Dhangar community’ and on the basis of this caste certificate obtained employment in ONGC against 6 a reserved post of Account Assistant Grade III; and (b) That the District Magistrate, Dehradun, after due investigation and verification, had cancelled the scheduled caste certificate issued to CO and CO suppressed this material information of cancellation of this scheduled caste certificate. The Enquiry Officer on the first charge found that the first part of the article of charge framed against the petitioner was identical to the article of charge framed against the petitioner in the earlier charge-sheet dated 5th February, 1991. The Enquiry Officer further found that the competent authority had exonerated the petitioner of this charge in the earlier enquiry proceedings. The Enquiry Officer further found that a genuine certificate was issued by the District Administration and that the petitioner did not play any fraud in obtaining the certificate. The Enquiry Officer accordingly found that the first part of the charge was not proved against the petitioner. With regard to the second part of the charge, the Enquiry Officer found that even though the petitioner had intimated the employers about the return of the caste certificate and submitted proof of this fact to the Enquiry Officer namely the rubber stamp and endorsement of some person indicating receipt of the letter, the Enquiry Officer found that this was not a sufficient evidence to prove the receipt of the letter, since the employers have denied the receipt of this letter. The Enquiry Officer concluded that the second part of the charge against the petitioner stood proved and that petitioner 7 had concealed the fact about the cancellation of the caste certificate from his employers. Based on the aforesaid report of the Enquiry Officer, the disciplinary authority passed the order dated 9.12.2003 removing the petitioner from service with immediate effect. The disciplinary authority agreed with the enquiry report and found that the petitioner had suppressed the information with regard to the cancellation of the caste certificate and that the petitioner did not intimate the employers about the cancellation of the caste certificate. The petitioner, being aggrieved, filed a departmental appeal which was also dismissed and, consequently, the petitioner, thereafter has preferred the writ petition. Heard Sri Ram Ji Srivastava, the learned counsel for the petitioner and Sri L. P. Nathani, the learned Senior Counsel assisted by Sri J. P. Joshi for the respondents. The learned counsel for the petitioner submitted that the petitioner had not played any fraud in obtaining the caste certificate and that an identical enquiry was initiated earlier in which the Enquiry Officer found that the petitioner had not played any fraud and that the certificate issued by the District Administration was a genuine one. Inspite of these charges being found to be false, the petitioner has been removed from the services on the same charges. The learned counsel for the petitioner further submitted that the finding that the petitioner had concealed the cancellation of the certificate from his employers was patently erroneous inasmuch as the petitioner had intimated the authorities about the return of the caste certificate, which was duly acknowledged by the employers by the issuance of a receipt which has been disbelieved for reasons best known to the Enquiry Officer. The learned counsel invited the attention of the court to paragraph 16 of the writ petition, in which it was clearly asserted that the information about the return of the certificate was given to the 8 employers which fact has been admitted by the respondents in the paragraph 18 of their counter affidavit. The learned counsel also submitted that the petitioner has been discriminated by the employers, and whereas, in similar circumstances, on the ground of obtaining employment on the basis of a wrong caste certificate, other employees of ONGC were adjusted in the general category after having been found that they have wrongly employed under the reserved category quota but, in the case of the petitioner, instead of adjusting him in the general category, the petitioner has been removed from the service. The learned counsel submitted that the action of the respondent was not only discriminatory but also arbitrary. The learned counsel consequently concluded that the order of the employers removing him from service was liable to be set aside and that the petitioner was liable to be reinstated with continuity of service and with full back wages. On the other hand Sri L.P. Nathani,the learned Senior Counsel dwelt at length and submitted that the petitioner belongs to a Bishnoi family and that he or his family members had never taken any benefit of being a scheduled caste, and knowingly, the petitioner played a fraud and applied for a scheduled caste certificate. The learned senior counsel further submitted that by playing a fraud, the petitioner not only obtained a scheduled caste certificate, but by misrepresenting, obtained an employment under the reserved category quota. The learned counsel submitted that the petitioner knew that he was over age and could not get employment in the general category, but by production of this scheduled caste certificate, the petitioner got the benefit of relaxation of age, which was applicable to a scheduled caste candidate and consequently got an employment. The learned counsel further submitted that the Enquiry Officer has found all the charges to be correct against the petitioner and, on the basis of playing a fraud and illegally taken an employment and 9 further concealing the fact that his caste certificate was cancelled, which fact the petitioner did not intimate the employers, the disciplinary authority was justified in removing the petitioner from the services. Sri L.P.Nathani, the learned Senior Counsel further submitted that there was no discrimination or arbitrariness on the part of the employers inasmuch as the similarly situated employees were eligible to be absorbed in the general category, whereas the petitioner was found to be over aged and could not be adjusted in the general category. Having heard the learned counsel for the parties at some length and having perused the record as well as the enquiry report submitted by the enquiry officer, the court finds that the first three charges leveled against the petitioner, was not proved against him as is clear from the enquiry report itself. Consequently, the contention of the learned counsel for the respondents that the petitioner had played a fraud in obtaining an employment in ONGC and had falsely procured a caste certificate has no legs to stand. Such arguments cannot be permitted to be raised by the learned counsel for the respondents when these charges were found to be incorrect against the petitioner by the Enquiry Officer. The Enquiry Officer has categorically held that the caste certificate was a genuine certificate issued by the District Administration and on account of some confusion between Dhangar (/kuXkj) caste and Dhaangar (/kkaXkj) caste that the District Administration had issued a certificate to the petitioner. Upon a perusal of the enquiry report and other relevant documents, the court is of the opinion that no fraud was played by the petitioner in obtaining the certificate. The Addl.District Magistrate himself has submitted that the document issued by his office was a genuine one. The Government itself was not sure and realised their mistake in the list published under the Scheduled Caste and Scheduled Tribe Amendment Act, 1959. The said list at 10 serial no. 27 specified Dhangar (/kuXkj) and was written in english as Dhangar. Admittedly Dhangar (/kuXkj) community does not come under Scheduled Caste but is a Bishnoi community and that Dhaangar (/kkaXkj) is a Scheduled Caste community. Both Dhangar (/kuXkj) and Dhaangar (/kkaXkj) were written phonetically in english as Dhangar (/kkaXkj) and on account of this error written in English that the certificate was issued by the Administration to the petitioner. When the State Government issued a Government Order dated 8th April, 1994 directing all the District Magistrates in the State of Uttar Pradesh to take steps to cancel such certificates that have wrongly been issued to Dhangar (/kuXkj) community, it is only then that the District Magistrate issued a letter dated 13th February, 1995 directing the petitioner to return the certificate. Upon receipt of the said letter, the petitioner duly returned the certificate to the District Administration vide his letter dated 23rd February, 1995. In the light of the aforesaid, the court finds that the very premise of the fourth charge against the petitioner cannot be proved. The fourth charge is with regard to the cancellation of the caste certificate by the District Administration. The petitioner has returned the caste certificate. The same has not been cancelled by the District Administration. There is a distinction between the return of a certificate and the cancellation of the said certificate. Further, the court does not find that the petitioner had suppressed fact with regard to the return of the certificate from the employers. In paragraph 16 of the writ petition, the petitioner has categorically stated that he had intimated the employers about the return of the caste certificate to the District Administration. The respondents have admitted this fact in paragraph no. 18 of their counter affidavit. For facility, paragraph no. 18 of the counter affidavit is extracted hereunder; 11 “ 18- That the contents of para 16 of the writ petition, as stated are not admitted, hence denied. The petitioner was communicated the cancellation and he surrendered the certificate voluntarily. The petitioner, if fact, intimated the corporation about this, copy of the same are annexed as Annexure No. 9 and 10 to the writ petition. “ In the light of this admission coupled with the fact that the Enquiry Officer did not rely upon the receipt of the letter, which was issued by the employers, this court has no doubt to hold that the fourth charge against the petitioner has not been proved. There is no iota of evidence to come to a conclusion that the petitioner had dishonestly suppressed the material information about the cancellation of his caste certificate from his employers. In my opinion, this charge, namely, the fourth charge has not been proved. The Enquiry Officer as well as the disciplinary authority has committed an error in removing the petitioner on this ground itself. This court further finds that the action of the employers was not only arbitrary but also discriminatory. In paragraph no. 27 and 28 of the writ petition, the petitioner has categorically asserted that similarly situated persons, who had obtained employment on the basis of scheduled caste certificate was subsequently adjusted in the general category. The reasoning given by the employers is, that those persons had been adjusted because they were qualified, whereas the petitioner had become over age does not stand the test of reasonableness. Once a certificate has been found to be false and if the same reasoning is adopted, the services of all the other persons should have been removed but those persons have been adjusted in the general category and the petitioner has been removed from the services without considering the fact that the petitioner had worked from 1982 till the date of the impugned order of removal in 2008 i.e. for almost 26 years. This court does not find any plausible logic in the reasoning 12 adopted by the employers and, therefore, can only summarize that the action of the employers was not only arbitrary but also discriminatory. In the light of the aforesaid, this court finds that the impugned order of removal dated 9.12.2003 as well as the appellate order dated 30th June, 2004 cannot be sustained and are quashed.The writ petition is allowed. The petitioner will be reinstated in service. Admittedly the petitioner has not worked from 9th December, 2003. No doubt the petitioner took advantage of a wrong certificate that was issued in his name. From a reading of the material evidence that was brought on record, the court finds that there is a whiff of smoke and there is no smoke without a fire. This benefit of doubt has been given by the Enquiry Officer in his report about the genuineness of the documents of the caste certificate. Consequently, on this small gray area, the court is of the view that no back wages should be given but this period from the date of the termination till the date of reinstatement would be counted for the purpose of seniority and other benefits including post retrial benefits. The writ petition is accordingly allowed. In the circumstances of the case, there shall be no order as to costs. (Tarun Agarwala, J.) Dated 23-02-2010 Nishant