Akhilesh Kum ar Verm a ...Pet it ioner v. Chairm an Managing Direct or ot hers

Mr. Prabhat Bohra, appearing t hrough V.C. Mr. Pankaj Miglani, learned counsel for t he respondent s. learned counsel t he pet it ioner Co r a m : H o n ’ b l e M a n o j K u m a r Ti w a r i , J. H o n ’ b l e A sh i sh N a i t h a n i , J. JUD GM EN T: ( p e r H o n ’ b l e Ju st i ce Sr i M a n o j K u m a r Ti w a r i ) Petitioner was appointed as Junior Engineer (C & M) in Oil and Natural Gas Corporation vide order dated

27.12.1982. He was removed from service vide order dated 04.10.2016 passed by Director (Offshore) ONGC, Dehradun. The order of removal is enclosed as Annexure 6 to the writ petition. Petitioner has also challenged the order passed by appellate authority whereby his appeal against punishment of removal was dismissed.

2. Perusal of punishment order reveals that an FIR was registered against the petitioner by CBI for the suspected offence of cheating, forgery and using forged documents as genuine, as there was allegation that petitioner has obtained employment in ONGC based on a false caste certificate dated 18.12.1981, purportedly issued by the then Tehsildar, Roorkee. The removal order further indicates that petitioner was convicted by the Chief Judicial Magistrate Ist/Special Judicial 1 Magistrate, CBI, Dehradun vide judgment dated

19.12.2015. However, petitioner was released on probation by giving benefit of Probation of Offenders Act. It is thus apparent that removal order was passed after conviction of petitioner by a criminal court. Petitioner contends that no disciplinary inquiry was held and petitioner was removed from service based only on judgment of criminal court which is not permissible. The said submission however is without any force. Article 311 (2) of the Constitution of India reads as under:- “1 [(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges 2[***]:” 3[Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply___] (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or that authority (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded is not reasonably practicable to hold such inquiry; or (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.]” in writing,

3. Perusal of clause (a) of second Proviso to Article 311(2) of Constitution of India reveals that a Government servant can be dismissed or removed from service based on conviction by a criminal court and in 2 such cases holding of departmental inquiry is not necessary.

4. Mr. Pankaj Miglani, learned counsel appearing for ONGC submits that as per the regulations applicable to ONGC employees, conviction by a criminal court is sufficient ground for removal or dismissal of an employee.

5. Hon’ble Supreme Court has held that a general category candidate getting selected and appointed against reserved vacancy based on a false caste certificate, is a serious misconduct. In the case of Bhubaneswar Development Authority vs. Madhumita Das and others 2023 SCC Online SC 977, the following view was expressed by Hon’ble Supreme Court. Para 21 to 24 are reproduced below:- “21. In Chairman and Managing Director, Food Corporation of India (supra), the issue before this Court was whether protection should be granted to individuals who secure access to reservation in spite of the fact that they do not belong to the reserved community. This Court overruled Kavita Solunke (supra) and Shalini (supra) on the ground that it would be contrary to the express provision of the law to import the requirement of dishonest intention. This court held:

55.[…] The intent of a candidate may be of relevance only if there is a prosecution for a criminal offence. However, where a civil consequence of withdrawing the benefits which have accrued on the basis of a false caste claim is in issue, it would be contrary to the legislative intent to import the requirement of a dishonest intent. In importing such a requirement, the Bench of two Judges in Shalini [Shalini v. New English High School Assn., (2013) 16 SCC 526 : (2014) 3 SCC (L&S) 265] has, with great respect, fallen into error. The judgment in Shalini [Shalini v. New 3 respondent English High School Assn., (2013) 16 SCC 526: (2014) 3 SCC (L&S) 265] must, therefore, be held not to lay down the correct principle. In the very nature of things it would be casting an impossible burden to delve into the mental processes of an applicant for a caste certificate. […] 22. This Court further held that granting protection to individuals who are ineligible for the post has a deleterious effect on good governance as it: (i) allows an ineligible person to gain access to a scarce public resource (public employment); (ii) violates the rights of eligible persons; and (iii) perpetuates illegality by unduly bestowing benefits on an ineligible person. 23. The obtained employment against a post reserved Scheduled Caste to which she was not entitled. The effect is to displace a genuine candidate, who would otherwise have been entitled to the post. No fault can be found with the conduct of the appellant in convening a disciplinary enquiry. The findings of the enquiry are unexceptionable. The punishment which was imposed could not be regarded as disproportionate. Irrespective of whether or not the caste claim of the first respondent was fraudulent or otherwise, it is evident that the benefit which she obtained of securing employment against a reserved post would have to be recalled once the caste claim has been rejected. 24. In view of the clear principle of law which was has been formulated in the judgment of this Court in Chairman and Managing Director, Food Corporation of India (supra), we are of the view that the Singe Judge of the High Court reconsideration of the claim of the respondent for reinstatement.” issuing a direction in error

6. Learned counsel for petitioner submits that the terminal benefits, which are payable to the petitioner, have not been released so far. If that is so, petitioner shall be at liberty to make representation to the 4 competent authority. If he makes representation for release of the outstanding dues, the competent authority shall examine the matter and pass necessary order within four months from the date of receipt of such orders.

7. Having regard to the aforesaid legal position, this Court is not inclined to interfere with the impugned orders. The writ petition fails and is dismissed. ( A sh i sh N a i t h a n i , J.) ( M a n o j K u m a r Ti w a r i , J.)

07.05.2025 Arti ARTI SINGH DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=487ed955e722ba65aab55409e686c12fb83a19325e8b66890fbee418e7b69c0d, postalCode=263001, st=UTTARAKHAND, serialNumber=26DC90E00D839E3E8714131F235087D2D87E133C57E7F4A7B2E734BE2521F982, cn=ARTI SINGH 5