One cannot claim a right to post, if he has usurped the post meant for a reserved candidate. : Jharkhand High Court

Rajgrih Pal vs Central Coalfield LimitedNo. 55609 Rajgrih Pal ..... Petitioner Versus 1. Central Coalfield LimitedC.C.L. Darbhanga House Ranchi 3. General ManagerSirka C.C.L P.O. Argada District Ranchi 4. Personnel Manager SirkaP.O. Argada District Ramgarh 5. Project OfficerSirka C.C.L P.O. Argada District Ramgarh. ..... Respondents CORAM: HON BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioner : Mrs. M.M.Pal Sr.Advocate For the Respondents : Mr. A.K.Das Advocate Ms. Swati Shalini Advocate JUDGEMENT C.A.V. on: 03.03.2021 Delivered on: 07 06 2021 Heard learned counsel for the parties through V.C 2. The instant writ application has been preferred by the petitioner praying therein for quashing and setting aside the order dated 11.02.2009 issued by respondent No.5 whereby the services of the petitioner has been terminated and also the appellate order dated 01.10.2009 passed by respondent no.2 whereby the appeal of the petitioner has been rejected The petitioner has also prayed for reinstatement of his service with back wages and other 3. The brief facts necessary for disposal of the instant writ application is that petitioner was initially appointed on 05.09.1980 to the post of Piece Rated Employee under the VRS for male workers wherein there is a provision for employment of the dependent in case of male employee applied for VRS. When the petitioner was performing his duties to the post of Munshi a charge sheet dated 10.12.1998 was issued to him alleging that he obtained employment claiming himself to be his son in law of one "Sado" although he did not have any such family relationship with him. For proper appreciation of this case the charge sheet issued against this petitioner is quoted herein Indian Kanoon below in para 11 of counter affidavit: Rajgrih Pal vs Central Coalfield Limited"That under the Voluntary Retirement Scheme of CCL you obtained employment in Sirka Colliery as P.R. Worker vide appointment letter No. GM(A P Vol.Rectt 80 SRK 18988 dated 05.09.1980 against the voluntary retirement of Sri Sado Coal Cutter by declaring yourself to be his son in law although you did not have any such family relationship with him. By such fraudulent means you got employment at Sirka Collierty in connivance with Sri. Sado and the then dealing officer of Sirka Colliery and G.M.Office Argada Area ii) That you are Gareri by Caste having the surname Pal and the name of your father is Sri Jhuri r o village Piparia P.O. Chhebari Distt. Rohtas whereas Sri Sado belongs to Munda Scheduled Tribe and he never married his daughter to you. After entering into the service of CCL you got your surname Pal recorded in the service sheet and other records Thus you have fraudulently entered into the services of CCL on 08.09.80 and have since been illegally on the pay roll of the company 4. The aforesaid charges constituted misconduct under clause 17(i)(a) 17(i)(o) of the Certified Standing Orders applicable to the petitioner. Pursuant to the aforesaid charge sheet petitioner submitted his reply and a departmental enquiry were constituted. The enquiry officer after conducting the enquiry submitted the report dated 26.12.2006 holding the charges as not proved Thereafter the disciplinary authority being not in agreement with the findings of the enquiry officer made a decent note and issued a second show cause notice to this petitioner with proposed punishment. The second show cause notice clearly stipulated the grounds of disagreement with the finding of an enquiry officer. Thereafter the petitioner had given a detailed reply however an order of punishment of removal from service has been passed observing that the petitioner is guilty of entering into the employment of the company fraudulently by falsely declaring him to be the dependent son in law of Sri Sado Pursuant thereto the petitioner preferred an appeal and also a writ application challenging the order of removal from service being W.P.(S) No. 20209 which was disposed of by this Court vide order dated 7th May 2009 directing the respondent authorities to dispose of the appeal Pursuant to the order passed by this Court the appellate authority dismissed the appeal of this petitioner which was communicated to him vide impugned letter dated 01.10.2009 5. Mrs. M.M.Pal learned senior counsel challenged the order of dismissal as well as the appellate order by contending that the appointment order was issued by the Personal Manager and after 18 years from the date of the appointment of this petitioner charge sheet was issued. She further contended that the inquiry officer has properly conducted the enquiry and found the petitioner not guilty and opined that the charges are not proved Indian Kanoon Rajgrih Pal vs Central Coalfield Limited7 SCC 84 Para 18 19 and 20 are quoted herein below: 18. Under Regulation 6 the enquiry proceedings can be conducted either by an enquiry officer or by the disciplinary authority itself. When the enquiry is conducted by the enquiry officer his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer s report and while recording a finding of guilt imposes punishment on the officer. In our opinion in any such situation the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of enquiry as explained in Karunakar 19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the enquiry authority on any article of charge then before it records its own findings on such charge it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice as we have already observed require the authority which has to take a final decision and can impose a penalty to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer 20. The aforesaid conclusion which we have arrived at is also in consonance with the underlying principle enunciated by this Court in the case of Institute of Chartered Accountants. While agreeing with the decision in Ram Kishan case we are of the opinion that the contrary view expressed in S.S. Koshal and M.C. Saxenawho was the appointing authority. She summarized her argument by submitting that the dismissal order dated 11.02.2009 and the appellate order dated 01.10.2009 are illegal improper arbitrary and contrary to the established law. Further the dismissal order being passed by the Project Officer is also without jurisdiction. Since in the enquiry preceding no charge has been proved against the petitioner the order of dismissal on the basis of no evidence is bad in law and as such the petitioner deserves to be reinstated in service along with back wages Before concluding her arguments she also referred that the authority of the respondents who recommended the case of his father in law for VRS and offered employment to this petitioner was though also charge sheeted by the CCL but later on they were exonerated from the charges as such even this petitioner should also not be punished 8. Mr. A.K.Das learned counsel for the respondent Company at the outset raised a preliminary objection inasmuch as the petitioner is a workman within the meaning of Section 2(S) of the Industrial Disputes Act 1947 as such proper remedy on the subject would lie before the appropriate authority and the forum created under the Industrial Disputes Act 9. Mr. Das further referred to the enquiry report submits that during the course of cross examination of the Management witness M.W.(1) the defendant asked to prove from the said Management witness to substantiate that the petitioner is not the son in law of Sado Munda and to which the Management witnesses gave a satisfactorily reply explaining the particulars of family members of Sado and further stating categorically that Sado Munda had no daughter named Kalawati Devi who was claimed to be wife of this petitioner. This categorically statement of the management witness was not denied by the petitioner Learned counsel further referred to the deposition of D.W. 1 and 2 who were cross examined and vides answer to question nos. 9 and 14 respectively stated that they are not aware as to the place where the marriage of the petitioner with Kalawati Devi took place and that their deposition are based on hearsay Learned counsel further referred the enquiry proceeding dated 05.10.2005 and submits that during the cross examination of this petitioner in reply to the question no. 10 the petitioner failed to Indian Kanoon Rajgrih Pal vs Central Coalfield Limited4 SCC 75 wherein at paragraph 5 and 6 the Hon ble Apex Court has held as under: 5. It is a well settled principle that the High Court will not reappreciate the evidence but will only see whether there is evidence in support of the impugned conclusion The court has to take the evidence as it stands and its only limited jurisdiction is to examine whether on the evidence the conclusion could have been arrived at.Act 1946 and is applicable to all workmen employed under all its CCL. He further referred Circular dated 01.10.1999 and submits that the Project Officer was empowered to issue order of dismissal Indian Kanoon Rajgrih Pal vs Central Coalfield Limitedwere married however petitioner had stated that he was married to Kalawati Devi in 1979. The said Indu Devi could not even tell about the family members of the petitioner. This all goes to show that the management has given ample opportunity to the petitioner for defending his case but the petitioner failed to satisfy the respondents that he was son in law of erstwhile employee and looking to all these facts the disciplinary authority differed with the finding of enquiry officer and finally imposed punishment of dismissal after issuing 2nd show cause notice. Thus it cannot be said that opinion of the Indian Kanoon Rajgrih Pal vs Central Coalfield Limited2 SCC 130 para 6.1 and 6.2 are quoted herein below: 6.1. It is settled law that interference with the orders passed pursuant to a departmental inquiry can be only in case of "no evidence". Sufficiency of evidence is not within the realm of judicial review. The standard of proof as required in a criminal trial is not the same in a departmental inquiry. Strict rules of evidence are to be followed by the criminal court where the guilt of the accused has to be proved beyond reasonable doubt. On the other hand preponderance of probabilities is the test adopted in finding the delinquent guilty of the charge 6.2. The High Court ought not to have interfered with the order of dismissal of the respondent by re examining the evidence and taking a view different from that of the disciplinary authority which was based on the findings of the inquiry officer 16. Learned sr. counsel also argued that the Project Officer was not competent to exercise powers of the disciplinary authority as the petitioner was appointed by HR Department and was posted at Sirka Colliery under Project Officer. From the Circular dated 01.10.1999 which has been produced at the time of hearing is a part of Certified Standing Orders which clearly transpires that the power has been delegated upon the Project Officer and it has been categorically directed that in respect of Areas to CCL the Chief General Manager General Manager Project Officer and Colliery Managers will be competent authority to exercise the powers for implementation of the provisions of Standing Orders and taking disciplinary action under the provisions of Certified Standing Orders Thus looking to the circular it is held that the stand of the petitioner that project officer was not competent to pass the order of removal is non est in the eye of law and has no legs to stand 17. Learned senior counsel also contended that since the petitioner worked for 18 years as such he should have been given other subsequent benefits post retiral benefits after reinstatement. In this regard it is well settled law that if any appointment is void ab initio then the petitioner cannot have right to claim for salary and or pension. The right to salary or pension after retirement flows from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal In the instant case since the disciplinary authority after disagreeing with the findings of the inquiry officer came to conclusion that petitioner has acquired job by committing fraud by claiming himself to be son in law of erstwhile employee Mr. Sado Munda as such the claim of re instatement in Indian Kanoon Rajgrih Pal vs Central Coalfield Limited2 SCC 105 wherein at paragraph no. 15 the Hon ble Apex Court has held as 15. This apart the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community then the very basis of his appointment was taken away. His appointment was no appointment in the eye of the law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of a false caste certificate has become final. The position therefore is that the appellant has usurped the post which should have gone to a member of the Scheduled Castes. In view of the finding recorded by the Scrutiny Committee and upheld up to this Court he has disqualified himself to hold the post. The appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As the appellant had obtained the appointment by playing a fraud he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit such an appointment is no appointment in law in service and in such a situation Article 311 of the Constitution is not attracted at all 18. In view of the aforesaid discussions it is clear that there is no procedural lapse in conducting the enquiry against this petitioner and as discussed hereinabove the findings are based on evidence and the same is not perverse no relief can be granted to this petitioner 19. Consequently the instant writ application is hereby dismissed. However there is no order as to costs Deepak Roshan J.) Jharkhand High Court Dated 07 06 2021 Amardeep AFR Indian Kanoon 

Summary: One cannot claim a right to the position because he usurped the position meant for a reserved candidate by committing fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post based on his appointment, he cannot invoke the constitutional guarantee provided by Article 311 of the Constitution, which was referred by Justice Deepak Roshan in the matter of Rajgrih Pal versus Central Coalfield Limited [W.P.(S) No. 5564 of 2009] Facts considered for passing the order were the petitioner was initially appointed on 05.09.1980 to the post of Piece Rated Employee under the VRS for male workers, wherein there is a provision for employment of the dependent in case of male employee applied for VRS. When the petitioner was performing his duties as Munshi, he was served with a charge-sheet dated 10.12.1998, alleging that he obtained employment by claiming to be the son-in-law of one “Sado,” despite the fact that he had no such family relationship with him. Mrs M.M.Pal, learned senior counsel, challenged the dismissal order as well as the appellate order, claiming that the appointment order was issued by the Personnel Manager and that the charge-sheet was issued 18 years after the petitioner’s appointment. She also claimed that the inquiry officer conducted the investigation properly, found the petitioner not guilty, and concluded that the charges were not proven. Mr A.K.Das, learned counsel for the respondent-company, raised a preliminary objection at the outset, stating that the petitioner is a workman within the meaning of Section 2(S) of the Industrial Disputes Act, 1947 and that the proper remedy on the subject would lie before the appropriate authority and the forum established under the Industrial Disputes Act. Mr Das also referred to the enquiry report, which states that during the course of cross-examination of Management witness M.W.(1), the defendant asked to prove from the said Management witness that the petitioner is not Sado Munda’s son-in-law, to which the Management witnesses satisfactorily replied explaining the particulars of Sado’s family members and furthers The petitioner did not deny the management witness’s categorical statement. In Bank of India v. Degala Suryanarayana, after referring to H.C. Goel case, this Court held “ Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The court cannot embark upon appreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.” Considering R. Vishwanatha Pillai vs. State of Kerala &amp; Ors reported in (2004) 2 SCC 105 the Hon’ble Court has mentioned Aside from that, the appellant was appointed to the service because he belonged to the Scheduled Caste community. When the Scrutiny Committee discovered that he did not belong to the Scheduled Caste community, the very basis of his appointment was revoked. In the eyes of the law, his appointment was not an appointment.