WP(C) 3913/2008 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. H.G. Baruah, learned counsel for the petitioner. Also heard Mr. D. Das , learned Central Govt. Counsel who represents the respondents. 2. The petitioner who is appointed as Constable (GD) in the175 Bn. of the C RPF challenges the order dated 9.8.07 (Annexure-I) of the Commandant, whereby th e petitioner is removed from service on the assumption that the charge against h im has been substantiated in the enquiry proceeding. 3. The penalty inflicted against the petitioner was preceded by a charge me mo dated 23.1.07 with the following allegation:- CHARGES LEVELED AGAINST F/NO. 991240201 C/GD PABAN BORA (PARA-I) That F/No. 991240201 C/GD Paban Bbora, who is working in B/175 B n submitted a fake STANDS DISPOSED OF certificate dt. 10.7.97 during his appoint ment to the force at Guwahati on 7.1.99 and get appointed to the force on STANDS DISPOSED OF quota, thereby committing misconduct, an offence punishable U/S 11 (1) of CRPF Act, 1949. Sd/- SK Raina (Commandant, 175 Bn.) 4. In responding to the above charge, in his reply dated 3.4.07 the delinqu ent took the stand that when he learnt of a recruitment drive by the CRPF Bn. at Jorhat, he applied against the two available vacancies in ST category by furnis hing ST certificate dated 10.7.97 issued by the Deputy Commissioner, Jorhat. He stated that had he known that the status of his community Koch Rajbangshi has changed to OBC category w.e.f. 3.4.97, he would have definitely applied for the larger vacancies(8) under OBC category instead of the lesser vacancies(2) in the ST category. He claimed that he had no information about the change of his comm unity’s status to OBC notified by the Govt. much later through the Govt. Notific ation dated 7.4.98 (Annexure-I to the counter affidavit). 5. It may be recorded that before the disciplinary proceeding was initiated against the petiioner, a verification exercise on the ST certificate of the pet itioner was conducted by the CRPF authorities and it is seen from the communicat ion dated 11th August, 2006 of DIG, CRPF, Silchar that the petitioner unaware of the change of his community’s status from ST to OBC category w.e.f. 3.4.97, whi ch was notified much later by the Assam Govt. through notification dated 7.4.98. Accordingly, the DIG concluded that at the time of applying for the job, the pe titioner did not have any knowledge about the changed status. It was also indica ted that the Deputy Commissioner, Jorhat in his report dated 9.1.06 did not desc ribe the ST certificate issued to the petitioner to be a fake or fraudulent. Accordingly, the following three suggestions were made by the DIG, CRPF, Silchar. :- 1) that no disciplinary action should be initiated against him since he did not obtain the certificate knowingly. 2) That considering the future prospects of the concerned person, he should be allowed to continue working in the force. 3) That the official records which show that he belongs to the ST Community should be amended to show that he belongs to the OBC community. 6. But notwithstanding the suggestion made by the DIG, CRPF, the Disciplina ry authority decided to initiate a disciplinary proceeding and appoint Shri Jag dish Rai, Assistant Commandant of the Battalion as an enquiry officer to enquire into the charge. 7. In the enquiry proceeding, several witnesses were produced and the petit ioner also participated in the enquiry. Most of the witnesses submitted that they themselves were unaware of the change of status from ST to OBC of the petitioner’s community. On the basis of such evidence, the enquiry officer concluded that - the allegation that he had submitted a fake ST Certificate to secure appointment is not proved. Accordingl y, recommendation was made by the Enquiry Officer that the delinquent be allowed to continue in service but he may now be regarded as a OBC instead of a ST cate gory person. The relevant portion of the finding of the Enquiry Officer may be extrac ted hereinbelow :- On perusal of the statements of the witnesses and that of the accd, it becomes evident that on 07/01/99 Paban Bora got apptt in the force on the stren gth of a ST candidate dt. 10/07/97 whereas the actually belong to the OBC catego ry. The allegation that he had submitted a fake ST certificate to secure apptt. is not proved. So, considering the future, he may be allowed to centime his serv ice and he may now be regarded as an OBC member instead of ST and necessary amen dment be made in the records. His evidence (L/M/N/D) proves that at the time of apptt. he belonged to the ST group and that he was unaware of the change in his ST status to the OBC. It is therefore, proved that Paban Bora had been unaware of the change in the c aste status of his community which may be regarded as a human mistake. Consideri ng his responsibility and good conduct on duty and considering his future prospe cts, he may be allowed to continue with his service. 8. I find from the DIG CRPF’s communication dated 11.8.06 that the Deputy Commissioner in his report dated 9.1.06 did not term the certificate issued to t he petitioner on 10.7.97 as a fake or fraudulent. Despite the said communication of the Deputy Commissioner, the disciplinary authority wrongly held that the re port of the Deputy Commissioner substantiated the charge against the delinquent. 10. Further more, the Enquiry Officer had also categorically held that the charge against the delinquent of furnishing the fake ST Certificate is not subst antiated. Yet the disciplinary authority recorded to the contrary that the charg e against the delinquent has been substantiated by the Enquiry Officer. 10. The conclusion reached by the disciplinary authority that the charge aga inst the delinquent has been established is clearly devoid of any basis inasmuch as, neither the Enquiry Officer nor the Deputy Commissioner, Jorhat had recorde d that the delinquent had produced a fake ST Certificate to secure appointment i n the CRPF. Even the DIG, CRPF in his communication dated 11.8.06 had recommende d that no disciplinary action should be taken against the delinquent as he had n ot procured the certificate with the knowledge that he is not entitled to be con sidered as a person belonging to the ST category. 11. That apart, the discontinuance of the ST status for the Koch Rajbangshi community w.e.f. 3.4.97 was notified by the Assam Govt. only through notificatio n dated 7.4.98 (1 year after) and in this circumstances, it is difficult to attr ibute any ulterior motive to the petitioner, for having produced the validly iss ued ST Certificate, for consideration of his candidature as an ST category perso n. 12. It must also be understood that the charge against the petitioner was no t relating to production of an invalid ST Certificate but production of a fake S T Certificate. Since the Deputy Commissioner has clearly recorded that the certi ficate issued to the delinquent was neither fake nor fraudulent and there is a c ategorical finding of the Enquiry Officer that the charge against the petitioner s is not proved, it is difficult to comprehend how the disciplinary authority co ncluded that the charge against the delinquent has been substantiated. Since the charge has not been proved, the impugned penalty cannot be sustained on the err oneous assumption that charge has been proved. 13. For the foregoing reasons, I find enough merit in the writ petition and accordingly the impugned penalty dated 9.8.07 is held to be unsustainable and th e same is quashed. Subject to medical fitness, the petitioner shall be reinstate d in service forthwith. However, considering that no service is received from th e petitioner since the date of the impugned order, he shall be paid only 50% of the arrear wages. It is ordered accordingly. 14. The Writ Petition stands allowed to the extent indicated above.