Delhi Jal Board Vs Sh O P Gaud

This petition has been filed challenging the Order dated 04.09.2024 passed by the learned Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as, ‘Tribunal’) in O.A. No. 4524/2018, titled O.P. Gaud (Ex. A.E. (Civil) Group ‘B’) v.

¶13

Delhi Jal Board , allowing the said O.A. with the following directions:

¶14

“(i) The impugned order dated 22.11.2016 (Annexure A/1) and appellate order dated 29.05.2018 (Annexure A/52) are set aside;

¶15

(ii) Applicant shall be entitled to all consequential benefits in accordance with the relevant rules and instructions on the subject including opening of the sealed cover. (iii) The aforesaid directions shall be complied with by the respondents, as expeditiously as

¶16

Signature Not Verified

¶17

Page 1 of 15

¶18

¶19

possible, and preferably within 10 weeks of receipt of a copy of this order.”

¶20

To give a brief background of facts to the present petition, the respondent was initially appointed as a Junior Engineer (Civil) in the year 1991, under the Scheduled Tribe category. Along with his application, he had submitted a caste certificate issued by the Tehsildar, Indore. He was later appointed to the post of Assistant Engineer (Civil) in the year 1999 and was considered for promotion to the post of Executive Engineer (on Current Duty Charge basis) in the year 2006.

¶21

In the year 2008, a complaint was received in the Vigilance Department of the petitioner, stating that the respondent’s caste certificate was not genuine. This resulted in a prolonged inquiry, the complete details of which are not necessary to be reproduced herein. Suffice it to say, the petitioner addressed a letter dated 25.08.2008 to the District Magistrate, District, Indore Collectorate, Moti Tabela, Indore, Madhya Pradesh, seeking verification of the genuineness of the caste certificate produced by the respondent. In response, dated 16.09.2008, the Zila Sanyojak, Adim Jati Kalyan Vibhag, Zila Indore, stated that the said certificate, dated 17.12.1990, was valid only for a six month period and was temporarily issued by the Nayab Tehsildar. 4. Thereafter, the petitioner started writing to the respondent asking for a fresh/permanent certificate to be submitted by him. The respondent, on one pretext or the other, however, did not produce such a certificate. This eventually led to the filing of FIR No. 388/2013, Police Station DBG Road, Delhi, against the respondent. A

¶22

Signature Not Verified

¶23

Page 2 of 15

¶24

¶25

Departmental Inquiry against the respondent was also initiated by the petitioner vide Memorandum dated 03.10.2013, on the following Article of Charges:-

¶26

“ Article No. 1

¶27

That he got himself appointed in Delhi Jal Board (erstwhile DWS & SD Undertaking) as Junior Engineer (Civil) in the year 1991 on a post reserved for Scheduled Tribe candidate by producing a Scheduled Tribe Certificate No. 1075 dated 17.12.1990. On his fresh appointment in Delhi Jal Board on the post of Assistant Engineer (Civil) through DSSSB in the year 1999 Sh. Om Prakash Gaud again submitted the above said Scheduled Tribe Certificate No. 1075 dated 17.12.1990 and got himself appointed as Assistant Engineer on a post reserved for Scheduled Tribe Candidate. On vigilance investigations, a report has been received from the concerned District Authorities i.e. Shri J.P. Yadav, Assistant Commissioner, Adiwasi Vikas, Indore alongwith report of Tehsildar Tehsil Indore dated 21.10.2013 vide his letter dated 21.10.2013 informing that no caste certificate has been issued to Sh. Om Prakash Gaud s/o Sh. Gopalji Gaud r/o 50, Netaji Subhash Marg, Indore vide Caste Certificate No. 1075 dated 17.12.1990.

¶28

This act of Sh. Om Prakash Gaud, Assistant Engineer (Civil), amount to gross misconduct on his part and he failed to maintain absolute integrity and acted in a manner unbecoming of a Govt. Servant. He has thereby, contravened Rule 3(l)(i)(ii) and (iii) of the CCS(Conduct) Rules,1964, as amended from time to time and made applicable to the employees of Delhi Jal Board.

¶29

Article No. 2.

¶30

That Sh. Om Prakash Gaud, Assistant Engineer (Civil) was directed vide this office letters dated 20.09.2012, 06.12.2012 and 31.01.2013 to submit his permanent Schedule

¶31

Signature Not Verified

¶32

Page 3 of 15

¶33

¶34

Tribe Caste Certificate (as the certificate produced was stated to be provisional), but he did not submit the original permanent Schedule Tribe Caste Certificate and tried to mislead the investigations by stating that he is unable to visit his hometown to get the original permanent ST caste certificate and will submit it within 5 days after receipt of the same from the authority. As he has failed to produce the Original permanent Schedule Tribe Caste Certificate, it therefore clearly shows that he does not belong to Scheduled Tribe Caste.

¶35

This act of Sh. Om Prakash Gaud, Assistant Engineer (Civil), amounts to gross misconduct on his part and he failed to maintain absolute integrity and acted in a manner unbecoming of a Govt. Servant. He has thereby, contravened Rule 3(l)(i)(ii) and (iii) of the CCS(Conduct) Rules,1964, as amended from time to time and made applicable to the employees of Delhi Jal Board.”

¶36

Interestingly, by way of a Corrigendum dated 25.02.2014, the Article of Charge No. 1 was amended, while Article of Charge No. 2 was deleted. Article of Charge No. 1 on basis of which the departmental inquiry was held, read as under:

¶37

“That he got himself appointed in Delhi Jal Board (erstwhile DWS & SD Undertaking) as Junior Engineer (Civil) in the year 1991 on a post reserved for Scheduled Tribe candidate by submitting a Scheduled Tribe Certificate No. 1075 dated 17.12.1990 and got himself appointed as Assistant Engineer on a post reserved for Scheduled Tribe Candidate. Shri Om Prakash Gaud later submitted that due to some typographical erroring the Office of Caste Certificate issuing authority, the date of issue of abovesaid caste certificate was mentioned as 17.12.90 instead of actual date of issue 17.12.83.

¶38

Signature Not Verified

¶39

Page 4 of 15

¶40

¶41

The Scheduled Tribe Certificate No. 1075 was, therefore, verified from the competent authority for its issuance on both the above mentioned dates, that is 17.12.83 and 17.12.90. However, it is found that the issuing authority had not issued any Scheduled Tribe Certificate bearing no.1075 to Sh. Om Prakash Gaud on 17.12.83 or 17.12.90. As such, Sh.Om Prakash Gaud had submitted false/fake Scheduled Tribe Certificate bearing no.1075 at the time of his appointment in Delhi Jal Board (erstwhile DWS & SD Undertaking) as Junior Engineer (Civil) in the year 1991 on a post reserved for Scheduled Tribe candidate, and again in the year 1999 on his fresh appointment in Delhi Jal Board as Assistant Engineer (Civil) through DSSSB on a post reserved for Scheduled Tribe candidate.”

¶42

In the inquiry proceedings, it was found that no caste certificate was issued in the name of the respondent on 17.12.1983 or 17.12.1990, and the respondent was found guilty of submitting a forged caste certificate for gaining employment and later for reappointment. On the basis of this finding of the Inquiry Officer, by an Order dated 22.11.2016, the respondent was visited with the punishment of “ dismissal from service which shall ordinarily be a disqualification from future employment under the Government” . Respondent’s appeal against the penalty order, was dismissed by the Appellate Authority of the petitioner, vide order dated 29.05.2018.

¶43

In the criminal case, however, the Police, after a complete inquiry, filed a Closure Report. The petitioner herein filed a Protest Petition against the same, which came to be adjudicated upon by the learned Chief Metropolitan Magistrate (Central), Delhi (in short, ‘CMM’), and was dismissed by Order dated 27.08.2018. Some of the

¶44

Signature Not Verified

¶45

Page 5 of 15

¶46

¶47

observations made by the learned CMM in the said order are relevant for the purposes of the present petition, and are reproduced hereinbelow:-

¶48

“The prime question before the Court is, if the ST Certificate filed by the accused is false or genuine. It is not disputed now that the accused actually belongs to "Gond" community which has been notified as Scheduled Tribe community by the Government of Madhya Pradesh. His school and college records establish this fact. Similarly, certificate of ST category had also been given to the brother of the accused Sh. Harish Gaud, which was found to be genuine as per record of Tehasildar office, Indore. Therefore, it is nowhere the claim of the Delhi Jal Board now that the accused does not belong to the ST community. The only issue is with respect to genuineness of the ST certificate in possession of the accused.

¶49

The authenticity of the said certificate can be established by (i) The Certificate Issuance Register maintained at the concerned office of Tehasildar, Indore, or (ii) By examining Sh. G.D. Joshi, the then Naib Tehasildar, whose signatures are appearing on the certificate, as informed by the accused, or (iii) By examination of any other person who could identify signatures of said Sh. G. D. Joshi.

¶50

It is come in investigation that the Certificate Issuance Register for the relevant period is not traceable with the concerned authority. Despite repeated attempts, the said record could not be traced. It is not a case that not such register exists or that no such certificate was part of that register. When the register itself is not traceable, the Court cannot conclude that the certificate on record did not exist therein. It is not a case that the

¶51

Signature Not Verified

¶52

Page 6 of 15

¶53

¶54

register has been concealed or destroyed by the accused, as no such allegation is there.

¶55

Further, the signatory of the said certificate Sh G.D. Joshi has already expired on 25.05.2005. Therefore, he could not be examined in the present case.

¶56

Despite this, the IO was able to record the statement of one Sh. Kanhaiya Lal Solanki, who was posted as Reader to the said Sh. G.D. Joshi at the relevant time. This witness duly identified his writing and stated that the dispatch number 1075 dated 17.12.1980 had been written by him, after it was signed by the Naib Tehasildar Sh. G.D. Joshi. From the said version, it would be clear that the certificate filed by the accused is genuine and not a forged document. There is nothing for the Court to disbelieve this witness and no reason has been given by the complainant as to why his version should be discarded. It is not even the case of the complainant that the said Sh. Kanhaiya Lal Solanki is a false witness or that the writing on the certificate did not belong to him. Even the Reader to Sh. G.D. Joshi is competent enough to identify the signatures of the said Sh. G.D. Joshi. This would be therefore sufficient to establish the authenticity of the certificate.

¶57

Still, as abundant caution, IO collected the admitted signatures of Sh. G.D. Joshi as appearing on the pay roll bills for the period 1980. The said signatures were sent to FSL for comparison with the signatures on the said certificate. The report of FSL has also been obtained in which it has been opined that the admitted signatures tallied with the questioned signatures. In such position, when the signatures/handwriting of Sh. G.D. Joshi have been tallied even by the experts, there is no merit in the claim of the complainant that IO "should have" collected the admitted signatures and should have sent to the FSL. IO

¶58

Signature Not Verified

¶59

Page 7 of 15

¶60

¶61

has already taken the admitted, signatures and sent to FSL, and the report is quite favourable to the accused.

¶62

In view of this, position, this Court is satisfied that there is no evidence on record to show that any offence of cheating or forgery or use of forged document was committed. There is no evidence to show that the ST Certificate furnished by the accused is a forged or false document”.

¶63

In view of the above order, the learned Tribunal, by its Impugned Order, placing reliance on the judgments of the Supreme Court in Roop Singh Negi v. Punjab National Bank & Ors. , (2009) 2 SCC 570 and in G.M. Tank v. State of Gujarat & Ors. , (2006) 5 SCC 446, allowed the O.A. filed by the respondent, directing his reinstatement with all consequential benefits.

¶64

Aggrieved by the said impugned order, the petitioner has filed the present petition.

¶65

The learned counsel for the petitioner submits that the learned Tribunal failed to appreciate that the respondent was given repeated opportunities to submit a fresh/permanent caste certificate, however, the respondent failed to produce the same, and therefore, the Disciplinary Inquiry was initiated against the respondent.

¶66

She further submits that only because, in the criminal investigation, the case against the respondent could not be proved, as the standard to be applied in a criminal case and in a Departmental Inquiry are different, the same cannot act as a res judicata against the petitioner in the Departmental Inquiry, thereby rendering the Departmental Inquiry subject to a challenge. She submits that the

¶67

Signature Not Verified

¶68

Page 8 of 15

¶69

¶70

learned CMM, in its Order dated 27.08.2018, has also observed that the said order would have no effect on the Departmental Inquiry, both being distinct. We quote the relied upon observations of the learned CMM as under:-

¶71

“At the outset, it is to be understood that the present criminal proceedings are quite different from the disciplinary proceedings against the accused at the departmental level. This Court is primarily concerned with the commission of a criminal offence of cheating and forgery and not about the different stands allegedly taken by an employee before the department. To establish the criminal offence, the court should not be influenced by the different dates of certificate mentioned by the accused, unless there is some evidence on record to show that the said certificate is a forged document.

¶72

xxxxxx

¶73

The departmental inquiry and the investigation found that the date of 17.12.1990 is not the date of said certificate, because it did not bear the signatures of the issuance authority at that time Sh. P.C. Rathi and against the number 1075, one birth certificate had been issued, in favour of Sh. Basanti Lal. Apparently, such details have been given only on the basis of record of the Tehasildar office and the Court has no reason to disbelieve the same. For that matter, even the accused does not dispute this fact. Therefore, the Court need not go further into that issue, particularly when the accused also claims that the certificate was not dated 17.12.1990. Similarly, this Court also need not go into the date of 17.11.1983 as given by the accused to the department, rightly or wrongly, deliberately or negligently or under some error or mistake. This is primarily a matter of departmental inquiry and the Court cannot, on the basis of such divergent versions of the

¶74

Signature Not Verified

¶75

Page 9 of 15

¶76

¶77

accused, conclude that the criminal offence of forgery or cheating had been committed or that the document was false/forged, without any further evidence to establish this fact”.

¶78

The learned counsel for the petitioner also draws our attention to the answers given by the respondent during the Inquiry Proceedings, wherein he refused to produce the original of the said certificate.

¶79

On the other hand, the learned counsel for the respondent, who appears on advance notice of this petition, submits that the respondent was honorably acquitted in the criminal case, with a finding that the document/caste certificate submitted by him was genuine. He submits that there is also no dispute raised by the petitioner on the fact that the respondent belongs to the ‘GOND’ community, which has been notified as a Scheduled Tribe by the Government of Madhya Pradesh. He submits that the entire inquiry against the respondent was, therefore, initiated and actuated out of malice in law. He further submits that the caste certificate submitted by the respondent had been duly verified by the police from various authorities, and was found to be genuine. There was also no challenge to this finding of the learned CMM.

¶80

We have considered the submissions made by the learned counsels for the parties.

¶81

While it is true that the standard of proof to be applied in a Departmental Inquiry as against a criminal trial are vastly different, one being of preponderance of probability while the other being of proof beyond reasonable doubt, at the same time, when an employee is

¶82

Signature Not Verified

¶83

Page 10 of 15

¶84

¶85

prosecuted both in a criminal case as also in a Disciplinary Inquiry on the very same charge, and is honorably acquitted/discharged in the criminal trial, the same shall have an effect on the Departmental Inquiry. This is especially applicable where the foundation of both proceedings is identical and where the criminal proceedings result in a clear finding of fact that directly contradicts the basis of the departmental action. The same was explained by the Supreme Court in M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679 as under:-

¶86

“34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, „the raid conducted at the appellant's residence and recovery of incriminating articles therefrom‟. The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the „raid and recovery‟ at the residence of the appellant

¶87

Signature Not Verified

¶88

Page 11 of 15

¶89

¶90

were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.

¶91

35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.”

¶92

In G.M. Tank (supra), the Supreme Court also explained the same as under:-

¶93

“30. … In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the criminal court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer Mr V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses

¶94

Signature Not Verified

¶95

Page 12 of 15

¶96

¶97

were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.

¶98

31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case [(1999) 3 SCC 679: 1999 SCC (L&S) 810] will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.”

¶99

In the present case, in fact, the criminal trial did not even start against the respondent. The Police, after a detailed investigation, found the document/caste certificate to be genuine and filed a closure report. The petitioner filed a Protest Petition against the same, but failed in the same. The learned CMM, in its Order dated 27.08.2018, found the document produced by the respondent for gaining

¶100

Signature Not Verified

¶101

Page 13 of 15

¶102

¶103

employment, to be genuine. For the above finding, the learned CMM relied upon not only the testimony of Sh. Kanhaiya Lal Solanki, Reader to the then Naib Tehsildar who issued the subject certificate, but also the CFSL report. This finding would rightly have an effect on the Departmental Inquiry, which was on the very same charge. In fact, the learned Tribunal, in its impugned order, has rightly also placed emphasis on the fact that, in the Departmental Inquiry, none of the officers from the concerned office which has issued the subject caste certificate, were even listed as witness. Therefore, as against a detailed inquiry and report by the police, accepted by the learned CMM, was a inquiry report based only on conjectures and without any legal evidence on the charge as grave as of forgery.

¶104

Coming to the submission of the learned Counsel for the petitioner that in spite of repeated opportunities and calls of the petitioner, the respondent failed to produce the permanent caste certificate and tried to mislead the authorities on the date of the certificate, we may only note that this was precisely Article of Charge No. 2 in the original Memorandum dated 03.12.2013. The same, however, was dropped in the Corrigendum dated 25.02.2014. Therefore, the detailed correspondence between the petitioner and the respondent regarding a demand of the petitioner on the respondent to submit a permanent/fresh caste certificate loses all its significance. The only charge on which the respondent was proceeded against departmentally was that the caste certificate produced by him at the time of gaining employment was a forged document. Once that

¶105

Signature Not Verified

¶106

Page 14 of 15

¶107