Union of India & Ors Vs. A. Nagamalleshwar
Rao [1997] INSC 826 (18 November 1997)
S.C.
AGRAWAL, G.T. NANAVATI
ACT:
HEADNOTE:
NANAVATI,J.
Leave
granted.
The
Union of India is challenging in this appeal the order passed by the Central
Administrative Tribunal, Hyderabad Bench O.A. No. 1139 of 1992.
The
respondent was appointed as a Telephone Operator on 24th June, 1981 by the Divisional Engineer, Telecom, Eluru on provisional
basis. By an order dated 20th May, 1983 he was appointed on regular basis. On 8th May, 1984, the respondent was called upon to
produce his original SSC marks certificate for verification. he replied by
stating that he had submitted it along with his application for appointment and
it was not returned to him. In spite of repeated demands he did not submit
either the original certificate or a duplicate certificate. The Divisional
Engineer, therefore, became suspicious and made an inquiry from the Head Master
of the school from which the respondent had passed his SSC Examination. He was
informed that the respondent had secured only 48.6% marks. The respondent had
represented earlier as disclosed by the entries made in the Z register, that he
had secured 79.80% marks. As the respondent was thus found to have obtained the
employment wrongfully and in contravention of Rule 3(1) (1) (iii) of the CCS
(Conduct) Rules, 1964, a departmental inquiry was held against him. The charge
was held proved and an order of dismissal was passed against him on 29th March, 1989. Appeal filed against the said
order was dismissed by the Director (Telecom), Guntur Area. His revision
application to the Telecommunication Board also failed. he, therefore, filed
the above said O.A. before the Tribunal.
The
Tribunal on appreciation of the evidence of Sanyasi Rao, who was examined
before the inquiry officer to prove the practice and procedure followed in
making entries in the Z register, held that his evidence was "useless and
no inference could be drawn therefrom to hold the article of charge
proved." As regards the extracts produced from the Z register with respect
to the entry relating to the respondent, the Tribunal held that it could not be
relied upon as it was secondary evidence and in the absence of any evidence to
prove authenticity of the said extract, it was no evidence in the eye of law.
The Tribunal was of the View that although such a departmental inquiry is a
quasi- criminal inquiry wherein technical rules do not strictly apply and the
test to be applied is of preponderance of probabilities, yet inferences can be
drawn from the acts and/or circumstances proved by legal evidence and not in
the absence of it. It also observed that "inference however cannot take
place of proof as the distance between 'might have been made' and 'made' has
not been bridged by the prosecution by adducing direct evidence". The
finding recorded by the inquiry Officer based upon the evidence of Sanyasi Rao
and the extract of entry from the Z register that the said entry was made on
the basis of information furnished by the respondent was held by the Tribunal
as bad on the ground that the original application made by the respondent and
the certificate produced by him were not available for perusal by the Inquiry
Officer as they were found missing from the record and there was no material to
show that the respondent had caused them to disappear. The Tribunal preferred
to rely upon the version of the respondent that he had submitted correct
information in his application form and also the original certificate showing
that he had obtained 48.6% marks. Taking this view of the evidence it held that
the finding that the charge was proved was based upon no evidence and,
therefore, the consequential order of punishment deserved to be quashed.
It was
contended by the learned counsel for the appellant, and in our opinion rightly,
that the approach of the Tribunal was erroneous as it had provided to examine
the inquiry proceedings as if it was hearing an appeal in a criminal case. Sanyasi
Rao was an officer working in the office of t he Divisional Engineer (Telecom)
and was conversant with the practice and procedure followed in that Office in
making entries in the Z register, Merely because he had no personal Knowledge
about the practice prevailing in 1980 and the entry relating to the respondent,
his evidence could not have been regarded by the tribunal as no evidence. The
tribunal had committed an error of law and also exceeded its jurisdiction in
holding that the extract which was produced from the Z register was not legal
evidence and could not have been relied upon by the inquiry officer. The
Tribunal failed to appreciate that the register was maintained in the Office of
Divisional Engineer as an official record and it was thus in the nature of a
public document. It was duly authenticated by a competent officer.
The
Tribunal after stating that the strict rules of procedure and proof do not
apply to a departmental inquiry, committed an error in applying the same in
this case. it is really surprising that in spite of the clear position of law
in this behalf and as regards the jurisdiction of the Tribunal in such cases,
the Tribunal thought it fit to examine the evidence produced before the Inquiry
Officer as if it was a court of appeal.
Another
flaw in the order passed by the Tribunal is that it failed to appreciate that
if the respondent had stated in his application form that he had obtained 48.6%
marks or had produced the certificate disclosing the correct percentage of
marks obtained by him then he would not have been selected at all as the
candidate who had secured 70.6% marks was the last one to be appointed. The
Tribunal also failed to appreciate that in spite of being repeatedly called
upon to produce either the original certificate of marks or a duplicate copy,
the respondent had failed to produce the same for verification on one pretext
or the other. The Tribunal also failed to appreciate that but for the fraud
committed either by the respondent himself or by him along with others a false
entry of marks could not have been made in the register and that the original
application form and the certificate could not have disappeared from the
records of the Office.
Thus
in view of the admitted facts that the respondent had secured only 48.6% marks
and the last candidate who could be appointed had secured 70.6% marks and the
other evidence produced before the Inquiry Officer, it becomes quite clear that
the respondent did not deserve to be appointed and could not have been
appointed but for the mistake committed by the concerned officer or the fraud
committed by the respondent. Therefore, the order of termination cannot be said
to be improper or bad and the Tribunal was in error in holding otherwise.
We,
therefore, allow this appeal, set aside the order passed by the Tribunal and
dismiss the O.A. filed by the respondent. There shall be no order as to costs.
IN THE
MATTER OF:
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