High Court · 2012

2. By means of this writ petition, the petitioner has challenged the order dated 6.2.2001 (Annexure-F to the writ petition), by which, pursuant to a depart mental enquiry, he was removed from service. The said order of removal has been affirmed by the appellate authority and the revisional authority vide impugned orders dated nil May, 2001 and 13.3.2003 respectively. 3. While the petitioner was serving under the respondents as Constable, a d epartmental proceeding was initiated against him on the following articles of ch arges - (cid:28)ARTICLE - I That the said No.690435576 HC/Dvr Jayanand Singh of HQ/27 Bn. CRPF, committed an act of misconduct in his capacity as a member of the force under Section 11(1) of CRPF Act, 1949 read with Rule 27 of CRPF Rules, 1955 in that he stated/declar ed a false date of birth as 1.7.48 at the time of his recruitment in 3rd Bn. Ori ssa Military Police on 6.5.66 which was subsequently converted into 43 Bn CRPF o n 1.1.1969. According to above date of birth (1.7.48) he was underage (below 18 years) at the time of his enlistment in 3rd Bn Orissa Military Police on 6.5.66 . This fact came to light at the time of verification of his qualifying service by Pay & Accounts Office, CRPF, New Delhi. At that time a School leaving certi ficate Sl. No.155 dated 31.5.94 issued by Head Master, High School Sonuhala, Dis tt. Gopalganj (Bihar) was found attached in his service book which was got verif ied from the Head Master of the above school who intimated that the above Schoo l leaving certificate was fake and the contents of the certificate were false. Thus he committed a fraud that amounts to misconduct by producing a false and f ake School leaving certificate in support of his date of birth. ARTICLE -I I That the said No.690435576 HC/Dvr Jayanand Singh of HQ/27 Bn, CRPF, committed an act of misconduct in his capacity as a member of the Force under Section 11(1) of CRPF Act, 1949 read with Rule 27 of CRPF Rules, 1955 in that in reply to a sh ow cause Notice served upon him, he stated that, he had never produced the Schoo l Leaving Certificate Sl. No.155 dated 31.5.94 issued by the Head Master, High S chool, Sonhula, Distt. Gopalganj (Bihar) in support of his date of birth as 1.7. 1948 and that he was unaware of the manner in which the said SLC entered and was pasted into his service Book. Further the said HC/Dvr submitted another School Leaving Certificate during Jan’2000 which was issued by Head Master, Mukhi Ram H igh School, Thawe, Gopal Ganj (Bihar) declaring his date of birth as 3.10.1950 a nd his name as Jayanand Prasad son of Shiv Raj Choudhary. His own name as well as that of his father and his date of birth recorded in this S.L. Certificate di ffered from those mentioned in his Service Book. Even if this SLC of Mukhi Ram H igh School, Thawe is taken as correct and his date of birth is accepted as 3.10 .50 then he was grossly underage at the time of his enlistment in 3 Bn O.M.P on 6.5.66 and he intentionally and knowingly concealed his correct date of birth (3 .10.50) and stated a false date of birth (1.7.48) at the time of his recruitment in 3 Bn OMP on 6.5.66 to gain wrongful entry in Govt. Service and continued to conceal it all through these years to remain in wrongful gain of Govt. Service. Thus he has committed a fraud which amounts to misconduct in his capacity as a m ember of the force. (cid:29) Along with the charge sheet, the statement of imputation of misconduct w 4. as also enclosed. Further, the list of documents and witnesses had also been enc losed to the charge sheet.

5. On receipt of memorandum of charge sheet, the petitioner submitted his written statement of defence. Being not satisfied with the same, a formal enquir y was conducted by appointing Enquiry Officer, who on completion of the proceedi ng, submitted his report holding the petitioner guilty in both the charges. Ther eafter, the petitioner was furnished with copy of the enquiry report vide letter dated 3.1.2001 asking him to submit representation, if any, in writing within 1 5 days. The petitioner duly submitted his representation.

6. After the aforesaid development, he was imposed with penalty of dismissa l from service by Annexure-F order dated 6.2.2001. Being aggrieved, the petitio ner had preferred an appeal to the departmental appellate authority which was al so rejected by Annexure-H order dated nil May, 2001. Being not satisfied, the pe titioner made revision application to the revisional authority and the said appl ication was also rejected by the impugned Annexure-J order dated 13.3.2003. The reafter, he filed the instant writ petition.

7. I have considered the submissions made by the learned counsel for the pa rties and have also considered the materials on record. As to what were the cha rges against the petitioner has been noticed above. At the time of entering int o the earlier service in 3rd Battalion, Orissa Military Police on 6.5.1966, the petitioner declared his date of birth as 1.7.1948. Thereafter, when he entered the Military Service, the matter was verified and it was found that the date of birth of the petitioner according to the school leaving certificate dated 31.5.1 994 issued by the Head Master of the school concerned namely, Sonhula High Schoo l in the district of Gopalganj, Bihar, his date of birth was recorded as 3.10.1 950. In another certificate issued by another High School namely, Mukhiram High School also, his date of birth was recorded as 3.10.1950. In the said certificat e, the names of both the petitioner and his father differed from those entered i n the Service Book.

8. If his date of birth is taken into account as 3.10.1950, the petitioner was under-aged at the time of recruitment being 15 years 7 months 3 days of age . The charge levelled against the petitioner is that by concealing the actual ag e, he declared his date of birth as 1.7.1948 to get employment. In the written statement submitted by the petitioner, he had taken the d 9. efence that he had verbally requested the concerned authority to record his date of birth as 1.7.1948, as he was about to complete 18 years of age. According t o the petitioner, he did not commit any fraud. As regards the certificate issued by the Head Master, Mukhiram High School, Thawe, Gopalganj, Bihar, where his da te of birth was recorded as 3.10.1950, the stand taken by the petitioner was tha t he was unaware about the difference between two dates. It was contended that h e was not given a chance to prove and verify the Service Book. As regards the ot her certificate issued by the Head Master of the High School, Sonahula, the plea taken was that he having not studied in the said school, such a certificate dec laring the date of birth of the petitioner as 3.10.1950 could not have issued. Another plea taken by the petitioner was that even if he was under-aged at the t ime of appointment, the same could have treated as (cid:28)Boy Service (cid:29) as per the Admi nistrative Instructions issued by the respondents and consequently, the charges could not have been levelled against the petitioner.

10. In the enquiry, the matter was gone into by taking evidence and the resp onse of the petitioner. It was found that there were discrepancies on the part o f the petitioner in disclosing material particulars while entering into services of the respondents. Both the charges having been established, the disciplinary authority passed the impugned order of dismissal from service on 6.2.2001. It ap pears that it was at the rupture of completion of 25 years of service, his servi ce record was verified, during which, anomalies relating to his date of birth en tered in the Service Book came to the notice of the authority. During enquiry, it was revealed that in the certificate issued by the Head Master of Mukhiram Hi gh School, there was also variation in the names of the petitioner and his fathe r. It was found that there were two declarations on the part of the petitioner, one declaring his date of birth as 1.7.1948 and another as 3.10.1950.

11. In view of the above, the disciplinary authority formed an opinion that there was misconduct on the part of the petitioner in not correctly stating the date of birth while entering into service of the respondents, but for which he w ould not have been appointed. The petitioner being a member of the disciplined f orce ought not to have taken recourse to falsehood while entering into service o f the respondents. Taking that view of the matter, the disciplinary authority i mposed the penalty of dismissal from service.

12. The aforesaid order was gone into in details by the appellate and the re visional authority considering the grounds urged by the petitioner and upheld th e penalty of dismissal from service by affirming the impugned order of dismissal from service passed by the disciplinary authority.

13. In absence of any material irregularity in conducting the enquiry, this Court exercising writ jurisdiction cannot sit over the findings recorded by the aforesaid authorities. At this stage, the learned counsel for the petitioner sub mits that having regard to long length of service rendered by the petitioner, ev en if, the charges are held established, the extreme penalty of dismissal from s ervice ought not to have been imposed disentitling the petitioner from any servi ce benefits. She submits that the penalty of compulsory retirement would have me t the ends of justice.

14. As to what should be the penalty is for the disciplinary authority to de cide. This Court exercising writ jurisdiction, cannot issue any direction to the disciplinary authority to impose compulsory retirement in lieu of the penalty o f dismissal from service. In view of the above, while not interferring with the impugned orders, 15. this writ petition stands disposed of granting liberty to the petitioner to appr oach the authority for re-consideration of the penalty by imposing any other pen alty, which may not stand on the way of entitling the service benefits, in consi deration of the long length of service rendered by the petitioner.

16. Writ petition is disposed of without, however, any order as to costs.