* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.1543/1999
% Date of Decision: 5.12.2011
Bansi Ram …. Petitioner
Through Ms.S.Janani, Mr. Deepak Goel, & Mr. Suando Raha, Advocates.
Mr.Ravinder Agarwal, Central Government Standing Counsel.
HON’BLE MR. JUSTICE ANIL KUMAR
HON’BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
ANIL KUMAR, J. *
1. The petitioner, a Head Constable at the Central Reserve Police Force (CRPF), has challenged the order of dismissal dated 2nd May, 1997 passed by the Inspector General, CRPF, on the charge that he had submitted a false certificate of his date of birth and he had changed his date of birth as he was not eligible for the post of Constable at the time of his enlistment, and the order dated 16th January, 1998 passed by the Director General dismissing the appeal of the petitioner against the enhancement of punishment imposed on him.
2. Brief relevant facts to comprehend the controversies are that the petitioner joined the Central Reserve Police Force (CRPF) on
3. On 16th March, 1995 a charge sheet was issued to the petitioner leveling the following allegations against him: “That the said number 680332976 HC Bansi Ram of E/52 Bn., CRPF while functioning as Head Constable in 52 Bn., CRPF committed an act of misconduct in his capacity as a member of the Force u/s 11(1) of CRPF Act, 1949, in that on 27.4.1969 at the time of his enlistment he tampered with date of birth in his original education certificate which was originally written as 11.2.1951 and tampered with it to read as 11.2.1950 to make up deficiency in his age limit for the purpose of enlistment.”
4. By order dated
5. The Enquiry Officer observed that the date of birth of the petitioner as mentioned in the transfer certificate, which was the basis of his enrollment in the CRPF, was
6. The petitioner filed his reply against the findings of the Enquiry Officer, however, by order dated 25th December, 1995, the Commandant, 62 Bn., CRPF, the Disciplinary Authority, held the petitioner to be guilty of the charge framed against him and, therefore, imposed a punishment of reversion to the rank of Naik for a period of two years with effect from 1st January, 1996. The Disciplinary Authority observed that the school leaving certificate submitted at the time of enrolment to the respondent‟s service stipulated the date of birth of the petitioner as
7. The petitioner, aggrieved by the order dated 25th December, 1995, preferred an appeal to the Deputy Inspector General of Police, CRPF contending, inter alia, that at the time of his enlistment as a constable in the CRPF on 27th April 1968, he was a minor and that the tampering in the date of birth in the education certificate was not effected by him, but instead could have been carried out by either his parents or his brother on whom he was wholly dependant. He categorically asserted that the tampering with the date of birth was not in his handwriting, since he could neither read nor write English, which is the language used in the said certificate. He further urged that his verification roll no. 1225 which was received on 29th May, 1968 clearly showed that his date of birth is 11th February, 1950 instead of 11th February, 1951 and the fact that this anomaly was not detected during the time of verification, cannot be a ground to make the petitioner liable for punishment after rendering 26 years of unblemished service.
8. The Appellate Authority, the Deputy Inspector General of Police, CRPF, after considering the pleas and contentions of the petitioner and the evidence on record, concluded on the guilt of the petitioner and dismissed the appeal by order dated 16th February, 1996 and upheld the punishment imposed by the Disciplinary Authority.
9. Thereafter, the petitioner sought the review of the order dated 16th February 1996 and filed a Review Petition on 25th March, 1996 against the punishment imposed on him. Meanwhile, respondent no. 5, Commandant 62 Bn., by order dated 2nd August, 1996 modified the punishment of reversion to the rank of Naik for two years to that of dismissal from service with effect from 3rd August, 1996 under the provisions of Section 11(1) CRPC Act, 1949 read with Rule 27(a) of CRPF Rules, 1955. It was also stipulated that in view of the modification, the petitioner is restored to his original rank of HC with effect from 1st January, 1996 and that he would be allowed to draw pay and allowances as per his entitlement as HC with effect from 1st January, 1996 to the date of dismissal i.e. 3rd August, 1996.
10. Pursuant to the order dated
11. Thereafter, a show cause notice dated
12. Aggrieved by the order of dismissal, the petitioner filed an appeal under Rule 29 (c) (11) of the CRPF Rules, 1955, to the Director General against the enhancement of the punishment contending, inter alia, that the Inspector General had no power under the Rules to enhance the punishment on his own motion, since the petitioner had submitted a review petition and not a revision petition, which had in any case stood cancelled and withdrawn. It was also contended that the power of enhancing the punishment as per Rule 29 of the CCS (CCA) Rules, 1965 could only be exercised within six months of the order proposed to be revised. Since the original order of punishment was passed by order dated
13. The Director General, after considering facts and circumstances and rules and regulations, held that the charge was proved against the petitioner and that he was not eligible at the time of enlistment and got himself enlisted on account of the false certificate submitted by him in order to secure the appointment in CRPF. Therefore, the Director General, by order dated
14. Against the order dated
15. It was also contended that the petitioner had joined the services of the respondents‟ in the year 1968 and at the time of his enlistment, he had submitted certain documents to verify his age and other details. As per the counsel for the petitioner, Rule 14 of the CRPF Rules specifically requires that the verification of the birth certificate has to be done as soon as the person is enrolled and that the verification in the present matter was carried out in the year 1968 itself, however, no tampering was alleged at the time and therefore it is contended that the authorities ought to have taken some action at that time if there was any evidence of tampering rather than issuing a charge sheet after 27 years of service. The learned counsel for the petitioner further asserted that the tampering in the school certificate, as stipulated in the charge sheet, is wrong since the petitioner's stand from the very beginning has been that he hasn't carried out any tampering and that the tampering, if any, may be attributable to either his parents or his brother on whom he was wholly dependent at the time of his enlistment to the service.
16. The learned counsel for the petitioner also attempted to impress upon this Court that the date of birth of the petitioner is 1st February, 1950 itself and not 1st February, 1951 as alleged by the respondents and that he on his own has not carried out any tampering on the education certificate, which he submitted at the time of the enrollment. It is also urged that by order dated 2nd November, 1996, the order of dismissal passed on 25th December, 1995 had been withdrawn and the punishment of reduction in the rank was reiterated, therefore, the power of review as well as that of revision of the petitioner had been exhausted and nothing remained pending with the authorities to entitle them to have passed fresh orders of dismissal. Learned counsel also relied on the judgment of Angad Das v. UOI & Ors., (2010) 3 SCC 463 in support of her submissions.
17. Per contra, the learned counsel for the respondents has contended that on completion of 25 years of service in the CRPF, the service record of the petitioner was sent to the PAO, CRPF for verification of qualifying service by the ADIGP, GC, CRPF, Bhuvaneswar by letter no VI-5/94-SR 52 dated 15th January, 1994. On checking the service record of the petitioner, it was noticed by the PAO, CRPF, that the date of birth of the petitioner that was recorded in his school leaving certificate had been overwritten, therefore, a request was sent by letter No. VQS/GC/BBSR/94-VQS-I dated
18. The petitioner then availed the option of filing a revision petition dated
19. Thereafter, by order dated 2nd November, 1996 by the Dy. Inspector General of Police, CRPF, Bhuvaneshwar it was directed that the original punishment of „reversion‟ was to be corrected to that of „reduction‟ to a lower rank and that instead the Commandant had inadvertently issued the order of dismissal which was improper as it amounted to enhancement of punishment and that too without giving any show cause notice and therefore it was to be set aside. Accordingly, the punishment of „reversion‟ was corrected to that of „reduction‟ to the rank of Naik for a period of 2 years with effect from 1st January, 1996 by order dated 10th December, 1996. Therefore, the revision petition filed by the petitioner which was kept pending in the Sector Office had been disposed of by the order dated
20. The learned counsel for the respondents contended that the order of enhancement is justified on the ground that the petitioner was not eligible for the post of Constable at the time of his enlistment and that he had secured the job only by forgery and tampering his date of birth in his school leaving certificate. Therefore, it was contended that he has no right to be retained in the services of the respondents. It was further pointed out that the verification roll submitted by the petitioner at the time of his enlistment also showed the date of birth as 11.2.50 under the signatures of the petitioner himself, instead of 11.2.51, which is his correct date of birth. Therefore, it was contended that the suppression of such factual information and furnishing false certificate is clearly evident and thus cannot go unpunished. Learned counsel for the respondents also argued that the punishment of dismissal imposed on the petitioner by order dated 2nd May, 1997 was in view of the binding instructions prescribed vide office memorandum No. 11.12/7/91-Estt. (A) dated 19th May, 1993 which categorically stipulates that incase it is found that a Government Servant, who was not qualified or eligible in terms of the recruitment rules, etc for initial recruitment in service or had furnished false information or produced a false certificate in order to secure appointment, he/she should not be retained in the service. Learned counsel for the respondent also relied on the judgment of Ex Const. Raghubir Singh v. CRPF & Ors. WPC No. 3321/1998 dated
21. This Court has heard the learned counsel for the parties in detail and has also perused the entire record. The first point for determination is whether or not there has been any tampering of the school leaving certificate which was submitted by the petitioner at the time of his enlistment to the services of the respondents. Though the counsel for the petitioner had contended that the plea of the petitioner is that there had not been any tampering and even if there is any tampering, it is not by the petitioner. She contended that the charge sheet issued against the petitioner is wrong on two counts. Firstly, there has been no tampering on the school leaving certificate by the petitioner which was submitted at the time of enlistment and secondly the date of birth of the petitioner is 11.2.1950 and not 11.2.1951 as has been alleged by the respondents. Though this Court must not re-appreciate the evidence adduced before the enquiry officer while exercising its writ jurisdiction unless the findings were based on no evidence or ex-facie perverse, however, on perusing the record it is clearly evident that both the pleas raised by the petitioner are to be rejected. It was the categorical plea of the petitioner himself, during the departmental enquiry as well as during the appeal against the punishment of reversion to the rank of Naik and in the subsequent proceedings too, that he was a minor, his age being 17 years 2 months and 16 days at the time of his enlistment as Constable in the CRPF on 27th April, 1968 and the certificate showing his date of birth was submitted by his parents or his brother. Therefore, it cannot be contended by the petitioner that his date of birth is 11.2.1950 and not 11.2.1951. If his date of birth is 11.2.1950, he wouldn‟t have been a minor at the time of his enlistment and the petitioner would not have contended that he was a minor and the tampered certificate was submitted by his parents or his brother. If the date of birth of the petitioner had been 11.2.1950, he would not have been minor at the time of enlistment and there would not have been need for tampering the date of birth certificate submitted to the authorities.
22. Also, as per the verification of the date of birth done by the Principal of the petitioner‟s concerned school by letter dated 7th June, 1994, the date of birth had been verified to be 11.2.1951 according to the school records. The learned counsel for the petitioner has been unsuccessful in showing anything to disprove or invalidate the verification by the Principal of the petitioner‟s school. Therefore, the date of birth of the petitioner is 11.2.1951 and not 11.2.1950 as has been contended by the counsel for the petitioner.
23. The other plea in the facts and circumstances that there had not been any tampering in the certificate and in case there is tampering, the same could not have been done by the petitioner also cannot be accepted. The tampering in the school leaving certificate has been accepted by the petitioner in various pleadings. Rather, the petitioner has contended that tampering in the certificate was done either by his parents or his brother. The petitioner is the beneficiary of tampering and it cannot be held that he was oblivious of the tampering and had not even given tacit approval, even if it is inferred that tampering was done either by his parents or his brother. The disciplinary authority has inferred that the tampering must have been done by the petitioner and in the facts and circumstances on the basis of evidence, this Court in exercise of its jurisdiction under Article 226 of the Constitution of India would not substitute the probable inferences of the disciplinary authority with its own inference, if it is contrary to the inference of the disciplinary authority. In any case, these pleas were carefully considered by the Inspector General, the Reviewing Authority, while issuing the order dated
24. The learned counsel for the petitioner has also assailed the order of enhancement of the punishment from reversion to that of dismissal from service on the ground that the same is barred by limitation. According to the counsel, Ms.S.Janani, Advocate, Rule 29(c) of the CRPF Rules, 1955 read with Rule 29(1) of the CCS (CCA) Rules under which the show cause notice for enhancement of penalty was issued, specifically provides that such a notice has to be given within six months of the order of penalty, which in the facts and circumstances was delayed, since while the order dated 25th December, 1995 imposed the penalty of reversion to the rank of Naik on the petitioner, the show cause notice for the enhancement of the penalty to that of dismissal was issued on 18th February, 1997. In the circumstances, it is urged that the enhancement of the punishment by the respondents was barred by limitation and the order of enhanced punishment of dismissal from service is liable to be set aside. The learned counsel for the respondent per contra has contended that there is no time limit prescribed under the CRPF Rules, 1955 and therefore, the order of dismissal is not barred by limitation.
25. With regard to this plea of limitation for enhancement of sentence, it would be appropriate to consider the relevant provisions referred to by the petitioner. 29. Revision: (CRPF Rule, 1955) (c) The next superior authority while passing orders on a revision petition may at its discretion enhance punishment; Provided that before enhancing the punishment the accused shall be given an opportunity to show cause why his punishment should not be enhanced 29. REVISION: (CCS (CCA) Rules, 1965) 1) Notwithstanding anything contained in these rules- (i) the President; or (ii) the Comptroller and Auditor-General, in the case of a Government servant serving in the Indian Audit and Accounts Department; or (iii) the Member (Personnel) Postal Services Board in the case of a Government servant serving in or under the Postal Services Board and Adviser (Human Resources Development), Department of Telecommunications in the case of a Government servant serving in or under the Telecommunications Board; or (iv) the Head of a Department directly under the Central Government, in the case of a Government servant serving in a department or office (not being the Secretariat or the Posts and Telegraphs Board), under the control of such Head of a Department; or (v) the appellate authority, within six months of the date of the order proposed to be revised or (vi) any other authority specified in this behalf by the President by a general or special order, and within such time as may be prescribed in such general or special order; may at any time, either on his or its own motion or otherwise call for the records of any inquiry and revise any order made under these rules or under the rules repealed by rule 34 from which an appeal is allowed, but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may- (a) confirm, modify or set aside the order; or (b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or (c) remit the case to the authority which made the order to or any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or (d) pass such other orders as it may deem fit: Provided that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (v) to (ix) of rule 11 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, and if an inquiry under rule 14 has not already been held in the case no such penalty shall be imposed except after an inquiry in the manner laid down in rule 14 subject to the provisions of rule 19, and except after consultation with the Commission where such consultation is necessary: The time limit of six months is prescribed for the appellate authority when an appeal is not filed and the appellate authority exercises the power of revisional authority under the CCS (CCA) Rules whereas no time limit is provided under the CRPF Rules for the revisional authority to enhance the punishment. The revisional authority of the respondents, admittedly, did not exercise the powers as revisional authority on appeal being not filed by the delinquent under the CCS (CCA) Rules. Appeal had been filed by the petitioner under the CRPF Rules and thereafter, revision had also been filed under the CRPF Rules. In the circumstances, both the provisions of Section 29 in the CRPF Rules, 1955 as well as Section 29 of the CCS(CCA)Rule, 1965 does not provide any limitation for exercising the revisionary powers by the Reviewing Authority nor any time limit for enhancement of punishment. The plea of the petitioner that the enhancement of punishment was barred by limitation, therefore, cannot be accepted and is rejected.
26. The sequence of events also reflects that there had not been any undue delay in enhancement of punishment though there is no limitation provided under rules. On
27. Enhancement of the punishment from reversion to the rank of „Naik‟ to that of dismissal imposed by the Reviewing Authority is also in accordance with the office memorandum dated 19th May, 1993. The said memorandum is under:
GOI, Ministry of Personal, P.G.
& Pensions (Department of Personal and Training)
Subject : Action against Government servants to be taken if they are later found ineligible or unqualified for their initial recruitment. Attention of the Ministries/ Departments is invited to Ministry of Home Affairs O.M. No. 39/1/67-Estt.(A) dated 21.02.1967 wherein it was clarified that departmental action can be taken against Government servant in respect of misconduct committed before his employment. Attention is also invited to the Ministry of Home Affairs O.M. No. 5/1/63-Estt.(D) dated 30.04.1965 wherein Ministries/Departments were requested to make use of the provision of "warning" inserted in the Attestation Form for taking action against Government servant furnishing false information at the time of appointment. 2. A question has now arisen as to whether a Government servant can be discharged from service where it is discovered later that the Government servant was not qualified or eligible for his initial recruitment in service. The Supreme Court in its judgment in the District Collector, Vizianagram Vs. M. Tripura Sundari Devi [1990(4) SLR 237] went into this issue and observed as under: — "It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint a person with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice." The matter has been examined in consultation with the Ministry of Law and Justice and it has now been decided that wherever it is found that a Government servant, who was not qualified or eligible in terms of the recruitment rules etc., for initial recruitment in service or had furnished false information or produced a false certificate in order to secure appointment, he should not be retained in service. If he is a probationer or a temporary Govt. servant, he should be discharged or his services should be terminated. If he has become a permanent Govt. servant, an enquiry as prescribed in Rule 14 of CCS (CCA) Rules, 1965 may be held and if the charges are proved, the Government servant should be removed or dismissed from service. In no circumstances should any other penalty be imposed. 3. Such discharge, termination, removal or dismissal from service would, however, be without prejudice to the right of the Government to prosecute such Government servants. 4. Ministries/Departments are requested to bring the above, to the notice of all concerned for information and necessary action. 5. In so far as persons serving in the Indian Audit and Accounts Department are concerned, these orders issue in consultation with the Comptroller and Auditor General of
28. The learned counsel for the petitioner has also contended that the charge sheet after 27 years of service rendered by the petitioner is unjustified and that as per Rule 14 proper verification ought to have been carried out as soon as the petitioner had enrolled with the respondents. The Supreme Court in Ram Saran (supra) relied upon by the respondent in similar circumstances had upheld the imposition of punishment of dismissal from service. In the instant case, the employee while applying for the appointment as a Constable in the „CRPF' had produced a certificate where his date of birth was stated to be 1.1.1951. Later on it was revealed that his date of birth was 1.7.1951 and he was not eligible to be appointed as he was less than 18 years of age. He had undisputedly rendered about 27 years of service. In these circumstances, departmental inquiry was conducted against him. The Deputy Commandant 45/BN. CRPF was appointed as Inquiry Officer to conduct the Departmental Enquiry. The Commandant (S.G.), the Disciplinary Authority, after considering the report was of the view that the charged official deserves stringent punishment, but keeping in view his long service of 28 years with good grading for the past 10 years, he had taken a lenient view in purported exercise of power under Section 11(1) of the Central Reserve Police Force Act, 1949 (in short the 'Act') and Rule 27 of the Central Reserve Police Force Rules, 1955 (in short the 'Rules') and had imposed penalty of reduction to the rank of NK (GD) for a period of one year from 10.9.1997 to 9.9.1998 without cumulative effect. The matter was thereafter placed before the Deputy Inspector General of Police, C.R.P.F.,
10. This is a case which does not deserve any leniency otherwise it would be giving premium to a person who admittedly committed forgery. In the instruction (G.O. No. 29/93), it has been provided that whenever it is found that a government servant who was not qualified or eligible in terms of the recruitment rules etc. for initial recruitment in service or had furnished false information or produced a false certificate in order to secure appointment should not be retained in service. After inquiry as provided in Rule 14 of the CCS(CCA) Rules, 1965 if the charges are proved, the government servant should be removed or dismissed from service and under no circumstances any other penalty should be imposed.” Therefore, the facts of Ram Saran (supra) cannot be distinguished by the petitioner and it cannot be held that the order of dismissal passed by the respondents suffers from any illegality, or such perversity which would require correction by this Court in exercise of its jurisdiction.
29. The precedent of Angad Das (supra) relied upon by the petitioner is distinguishable. In the said matter, the request letter of the employee for re-employment was treated as an appeal by the DIG Police, CRPF, Avadi, Madras and the punishment of "compulsory retirement" as awarded by the Commandant, 51 BN, CRPF, was enhanced to that of "removal from service" w.e.f. 31.5.1996. It was observed by the
30. In the entirety of the facts and circumstances, no such illegality or perversity has been made out by the learned counsel for the petitioner, which will entail any interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India against the order of the respondents dismissing the petitioner from service.
31. The writ petition, in the facts and circumstances, is without any merit and it is, therefore, dismissed. No orders as to cost.
ANIL KUMAR, J.
SUDERSHAN KUMAR MISRA, J.