'Nr?l.'^?;:f^ET^^^ :?^E 3^^^^B^ ^^^3^^SS^';^"SI^^^^S ms HIGHCOURT OF JUDICATURE AT BILASPUR : CHHATTISGARH CORAM : Hon'bte Shri H.L.Dattu, Chief Justice & Hon'bie Shri V.K.Shrivastava, Judge Vf Writ Petition No.5067 of 2004 ORDER FOR CONSIDERATION HON'BLE SHRI V.K. SHRiVASTAVA.J.,,, ^ o^ I8agaT Sd/- au"ef Justice . Sd/- V.K. Shrivastava Judge ^ss^yr&wr POST FOR PRONOUNCEMENT OF THE ORDER : 1 3 /03/2007 Sd/- Chief Justice HIGH COURT OF JUDICATURE AT BILASPUR: CHHATTiSGARH D!V!S!ONJ NCH CORAM: HON'BLE SHRi H.L. DATTU, C.J. & HON'BLE SHR1 V.K. SHRIVASTAVA, J. Writ Petition No.5067 of 2004 PETITIQNERS 1. Union of India, Through its Secretary, RESPONDENTS Ministry of Railwsys, Raiiway Board, New Delhi. 2. The General Manager, South Eastern Railway, Garden Reach, Kolkata. 3. The Divisional Railway Manager, South Eastern Railway, Bilaspur. VERSUS RESPONDENT Ramesh Kumar Bhagoria, S/o Late Ramdayal, aged about 65 years, R/'o 14/159, State Bank Coiony, Bindra Nagar, Lane No. R/B, Bilaspur - 495004. Present: Shri P.S.Koshv, counsel for the petitioners. Shri Manindra Shrivastava, Senior Advocate with Shri Ram Kumar Tiwari, counsei for the respondent. Ui^- \z March,2007) The following order of the Court was passed by H.L. Dattu, CJ. : This writ petition is directed against the order passed by the Central Administrative Tribunai, Jabaipur Bench, Jabalpur ("Vne Tribunal" for short) in O.A.No.385 of 2001, dated 29-09-2004. By the impugned order, the Tribunal has allowed the application filed by the respondent and quashed the order passed by the petitioners - authorities dated 19-03-1999 and has further declared that the respondent is entitled to all consequentiat benefits. 2. The facts in brief are : The respondent in this petition was the applicant before the Tribunal. He was an officer/employee of South Eastern Railway ("Railways" for short). Initially, he was appointed as Probationer Station Master in the year 1957. Subsequently, he was promoted as Trainee Assistant Station Master, sometime in the year 1958. The aDDlicant belongs to Caste "Dhoba". Dhoba is a sub-caste of Gond community, which has been notified as Scheduled Tribe in the State of Madhya Pradesh. The applicant, on the basis of a caste certificate, issued to him which indicated that he belongs to Scheduied Tribe community, had obtained all the service benefits, which are given to a Scheduled Tribe candidate. The applicant, while working as Assistant Station Master in the year 1965 applied for the post of Assistanf Transportation Inspector in response to a ietter issued by the Railways dated 30-03-1965. Whiie making the application for the aforesaid post, he had declared himse'f as a member of Scheduied Tribe by producing the caste certificate and in fact he got promoted as Assistant Transportation Inspector against the post reserved for the Scheduied Tribe candidate. He atso secured further promotion under the same category. 3. White working as Divisionai Commereial Manager, South Eastern Raiiways, in the year 1987, he was asked to produce caste certificate to substantiate that he belongs to Scheduled Tribe 3 communlty. Pursuant to the directions issued, the applicant had supoiled the caste certiflcate to the deDartment. 4. The app'icant was served with a charge memo dated 21-12- 1992 atong with a statement of imputation, list of witnesses and list of documents in support of the artlcles of charges. The sum and substance of the charge memo is that, by producing a false caste csrtificate that he belongs to Scheduled Tribe community, he had secured first promotion to the post of Assistant Transportation Inspector in the year 1965 and continued to secure promotions against the posts reserved for Scheduled Tribe categorv. Bv the above act of omission and commission, he failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Railway Servant in contravention of Ruie 3 of the Raiiway Services (Conduct) RuSes, 1968. The charge memo served on the applicant reads as "That the said Sri R.K.Bhagoria, while functioning as ASM/S.E.RIy./Silyari in the year 1965 applied for the post of ATi in response to circular ietter No.E/55/ATt dated 30.3.65. The application was forwarded by SM/Silyari to the DPO/BSP under No.EI/5908 dt.9.4.65. In this application Shri Bhagoria faisety declared himself as a member of Scheduled Tribe without furnishing any valid certificate and subsequentiy derived unue promotions against resewed posts, one after another, as ATI/SCR-11/Dy.CHC/CHC/ AOS/ACS/SCO/(Catg.) and equivalent posts though hs actually does not belong to any ST. Thus Sri R.K.Bhagoria, by his above act of omisslon and commission fai!ed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Railway Servant in contravention of Rule 3(1)i, ii and iii of the Railway Services (Conduct) Rules, 1966." 5. The disdplinary authority, by an order dated 19-07-1 W4, had appointed the Presenting Officer to present the case before the enquiry officer, in respect of the charges alieged in the charge memo. The enquiry officer, after holding a detailed enquiry in accordance with fhe procedure prescribed under the Rules, had submitted his report dated 20-04-1995 to the discipiinary authority and In that, he had conciuded that the delinquent officer is guilty of the charges alleged in the charge memo. After receipt of the report of the enquiry officer, evidence recorded and the documents marked, the disciplinan/ authoritv had issued second show cause notice to the Detitioner alona with the report of the enquiry ofRcer with a direction to make his representation, if any, against the enquiry officer's report. After receipt of the show cause notice, the delinquent officer had filed his reply dated 28-05- 1996 and in that, he had brought to the notice of the disciplinary authority regarding pen/ersity in the findings of the enquiry officer's report. After considering the reply filed by the delinquent officer, the discipllnary authority, on 19-03-1999 passed an order imposing a penalty of reduction of monthly pension to the minimum permissible on a permanent basis and had further ordered forfeiture of entire amounf of gratuity. The relevant portion of the order passed by the disciplinary authority is as under:- "After aivina careful consideration to the report and proceedings of inquiry, representation of Shri Bhagoria and a!l other reievant records/aspects of the case, in consultation with Union Public Service Commission, the President has come to the conclusion that the charges is proved against Shri Bhagoria for the reasons given in Union Pubiic Service Commission's letter No.F.3/96/98-31 dated 9.2.99. Accepting the advice of UPSC and holding that the charge proved is indicative of commission of grave misconduct, President has decided to impose a penalty of reduction of monthiy pension to the minimum admissible i.e. Rs.1275.00 (pre revised Rs.375.00) on a permanent basis and further forfeiture of entire amount of gratuity admissible to him, on Shri RK Bhagoria. The pension of Shri Bhagoria is accordingly reduced to the minimum admissibte i.e. Rs.1275.00 on a permanent basis and further entire amount of gratuityisforfeited." 6. The applicant being aggrieved by the order passed by the disciolinarv authoritv had fited an aDDtication. O.A.No.385 of 2003 before the Tribunal. The primary contention that was raised in the application was that, the Railway authorities without canceliing the caste certificate issued by the competent authority, could not have come to a conclusion that the applicant does not belong to Scheduted Tribe community. Secondly, it was contended that there was enormous delay in initiating the disciplinary proceedings for the so called act of production of false certificate to secure promotion. 7. In reply to the contentions of the applicant, the respondents, i.e., the petitioners herein, have stated that the applicant by producing a false certificate had secured promotion to the post of Assistant Transportation Inspector which post was reserved for Scheduled Tribe category; secondly, that it is oniy in the year 1987, She ctepartment came to know that the caste certificate produced by the applicant is a faise certificate and immediatelv thereafter had initiated the disciDiinarv proceedings against the applicant and, therefore, there is no delay in initiating the discipiinary proceedings against the applicant. It was their further contention that the enquiry officer, after hoiding a detailed enquiry as prescribed under the Rules, has come to the conciusion that the allegations made in the charge memo are proved against the applicant. They had further stated that the disciplinary authority, after careful consideration of the report of the enquiry officer, evidence recorded and the supporting documentary evidence, has accepted the report of the enquiry officer and has imposed a major penatty as provided under the RuSes and, therefore, the applicant is not entitied to any relief whatsoever. 8. The Tribunal, after considering the contentions canvassed by the parties to the Iss, has come to the conclusion that there is inordinate delay in initiating disciplinary proceedings and, therefore, the proceedings are vitiated. Secondly, the Tribunal is of the view that the authorities without cancellina the caste certificate issued to the applicant could not have come to a conc!usion that the applicant does not belong to Scheduled Tribe community. Having come to the aforesaid conclusion, the Tribunai has ailowed the applicant's appllcation and has set aside the order passed by the dlscipiinary authority of the Railways dated 19-03-1999. In support of its findings and conclusions, the Tribunal has reiied on the observations made by the Bombay High Court in the case of Anil Vasantrao Shirpurkar vs. State of Maharashtra and others, (2003 (1) ATJ 653). It is the correctness or otherwise of the said order is the subiect matter of this writ petition. 9. Shri P.S.Koshy, learned counsel appearing for the petitioners - Union of India, wouid submit that the respondent herein had submitted a caste certificate in the year 1987 pursuant to the direction issued by the Raiiwav authorities and it was discovered that the caste certificate produced bv the resoondent is a false caste certificate and, thereafter, the Rai!way authorities had initiated departmental enquiry proceedings within a reasonable time, and thsrefore, the Tribunal was not justified in holding that there is delay in initiating departmental proceedings and, therefors, the same is vitiated. Learned counsel would further contend, that, the enquiry officer, after detaiied consideration of the certificate produced by the respondent, has concluded that the certificate so produced is not genuine and, t'nerefore, the respondent was not entitled to get benefit under the Scheduled Tribe category. it is further submitted that since the certificate so produced was false certificate, question of cancelling the certificate by a competent authority would not arise. 10. Shri Manindra Shrivastava, learned Senior Counse! appeanng for the respondent ably justifies the findings and conciusions reached bytheTribunal. 11. The guestion, that would arise for consideration and decision of this Court after hearing learned counsel for the parties, is as under:- 'Whether the Tribunal was justified in setting aside the order passed by the disciplinary authority dated 19-03-1999 on the ground that there was 8 inordinate deiay in initiating departmentai proceedings?" 12. In the charge memo that was issued to the respondent it was stated that in the year 1965 he had applied for the post of Assistant Transportation Inspector in response to a letter dated 13-03-1965 and in that he had declared himse'f as a member of Scheduled Tribe without furnishing any valid caste certificate and subsequently derived accelerated promotions against the posts reserved for Scheduled Tribe category, one af6er another. So the main thrust of the charge memo is that by producing false certificate in the year 1965, the respondent haci secured promotions in the Railway administration. For the first time, the disciplinary authority, by issuing the aforesaid charge memo dated 21-12-1992, had initiated departmental enquiry proceedings against the respondent for the alleged act of production of a false certificate in the year 1965 and thereby he had committed certain acts of omission & commission, and had failed to maintain absolute integrity & devotion to duty and had acted in a manner unbecoming of a Railway servant. 13. The enquiry proceedings that was inltiated against the respondent by the petitioners was in the year 1992. There is delay of nearly 2% decades for initiating domestic enquiry proceedings for the alleged act of production of a faise certificate. Time and again the Apex Court has observed, that delay in initiating proceedings after !ong lapse of time, without a reasonable cause, woutd vitiate the enquiry proceedings. The Supreme Court, in the case of State of M.P. vs. Bani Singh and another, [1990 (Supp) SCC 7381, at paragraph 4 of the order, has stated as under:- 9 "4. The appeal against the order dated December 16, 1987 has been filed on the ground that the Tribunat should not have quashed the proceedings merely on the ground of deiay and laches and should have allowed the enauirv to ao on to decide the matter on merits. We are unable to agree with this contention of the leamed counsei. The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-77. It is not the case of the department that thev were not aware of the said irregularities, if any, and came to know it on!y in 1987. According to them even in April 1977 there was doubt about ihe invoivement of the officer in the said irregularities and the investigations were going on since then. !f that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunai. There is no satisfactory explanation for the inordinate delay in issuing ths charge memo and we are also of the view that it wilt be unfair to permit the departmental enquiry to be proceeded with at this stage. !n any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal." 14. In the case of B.C.Chaturvedi vs. Union of India and others, [(1995) 6 SCC 749] the Supreme Court has observed, that, delay in initiating the disciplinary proceedings is an unfair procedure depriving the livelihood of a public servant offending Articles 14 and 21 of the Constitution of India. Exception would depend upon facts and circumstances of each case. 10 15. In the case of P.V.Mahadevan vs. M.D., T.N.Housing Board, [(2005) 6 SCC 636], the Supreme Court has observed that delay in initiating departmental enquiry proceedings, in respect of an event which had taken place 10 years earlier would vitiate the enquiry proceedings, if the delay is not properly explained. While saying so, the Court has once again rslisd upon the law enunciated by the Apex Court in the case of State of M.P. vs. Bani Sin.qh and another and atso in the case of State of A.P. vs. N. Radhakishan, [(1998) 4 SCC 154]. 16. The Supreme Court, in the case of M.V.Bijlani vs. Unfon of India and others, [(2006) 5 SCC 88], has observed at paragraph 16 as under:- "16. So far as the second charge is concerned, it has not been shown as to what were the duties of the appellant in terms of the prescribed rules or otherwise. Furthermore, it has not been shown either by the disciplinary authority or the Appellate Authority as to how and in what manner the maintenance of ACE-8 Register by way of sheets which were found attached to the estimate file were not appropriate so as to arrivs at the culpabiiity or otherwise of the appellant. The Appellate Authority in its order stated that the appellant was not required to prepare ACE-8 Register twice. The appellant might have prepared another set of register presumabiy keeping in view the fact that he was asked to account for the same on the basis of the materials placed on records. The Tribunal as also the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and they continued for a period of seven / years and, thus, initiation of the disciplinary proceedings as also continuance thereof after such a long time evidentiy prejudiced the delinquent officer." 17. Keeping in view the dicta of the Apex Court, let us go back to the fact situation in the present case. Admittedly, the allegation against the respondent is that by producing a false caste certificate in the vear 1965. he had secured a Dromotion to the oost of Assistant Transportation Inspector which post was reserved for Scheduled Tribe category. For the first time, the Rai!way authorities would call upon the respondent to produce his caste certificate in the year 1987 and thereafter it is only in the year 1992 the disciplinary authority of the Board would issue a charge memo inter alia alleging that the respondent has committed certain acts of omission and commi&sion and acted in a manner unbecoming of a Railway Servant. Firstly, there is a delay of nearly 2% decade;. in asking the respondent to produce the certificate and thereafter there is 5 years delay in initiating departmental proceedings for the alleged acts of production ot a faise certificate while securing promotion from the post he was hoiding to the next promotiona! post. This unexplained delay on the part of the petitioners, in our opinion, is fatal to the proceedings and, therefore, the same is vitiated. The Tribunat, keeping the aforesaid aspects of the matter in vievi?, has rightty set aside the order passed by the disciplinary authority on the ground that there is enormous deisy in initiating the disciplinary enquiry proceedings and, therefore, the proceedings are vitiated. 12 18. Admittedly, the respondent, at the time of joining the service of the Railways, had produced a caste eertificate to the effect that he belongs to Scheduled Tribe community. The said certificate is stlil intact, in the sense a competent authority has not canceiled the certificate. Without cancellation of the said c^Kificate. the Detitioners could not have come to a conclusion that the caste certificate produced by the respondent is a false certificate and thereby he has committed an act which isunbecoming of an ofRcer of the Railways. Even on this count also, the findings and conclusions reached by the Tribunal require to be accepted. 19. In view of the aforesaid discussion of ours, we are of the opinion that the petitioners in this writ petition have not made out a case for interference with the orders passed by the Tribunal. Therefore, the writ petition requires to be rejected and it is accordingly rejected. In the facts and circumstances of the case, the parties are directed to bear their respective costs. Ordered accordingly. Sd/- Chief Justice . Sd/- V.K. Shrivastava Judge