Union of India (UOI) and Others vs Shrish Prasad Mishra and Another

G. P. Mathur, J.—This writ petition under Article 226 of the Constitution has been filed for quashing the judgment and order dated 26.4.2002 passed on O. A. No. 1235 of 1997 by Central Administrative Tribunal, Allahabad.

Sri Shrish Prasad Mishra (Respondent No. 1) was selected for the post of Reserved Train Pool (R.T.P.) Assistant and Sorting Assistant and his services were regularised in the year 1990. Disciplinary proceedings were initiated against him in July, 1994, on the ground that he had submitted a forged marks-sheet of High School examination, which showed that he had secured 72 marks in Mathematics when, in fact, he had secured only 34 marks. The enquiry officer held that the document, which showed that Respondent No. 1 had secured only 34 marks, had not been proved and, accordingly, submitted a report that the charge against him had not been established. The disciplinary authority disagreed with the report of the enquiry officer and after serving a memo of disagreement and after giving an opportunity of making a representation, awarded punishment of removal from service. Respondent No. 1 preferred an appeal against the order of removal from service but the same was dismissed. He filed a revision against the said order which was also dismissed. Thereafter, he filed the aforesaid original application before the Central Administrative Tribunal, Allahabad which was allowed and the orders passed by the disciplinary authority and also by the appellate and revisional authorities were quashed, and it was directed that Respondent No. 1 will be reinstated with all consequential benefits with the rider that he will be entitled to 50 percent of the wages during the period he had not worked.

The main charge against Respondent No. 1 was that he had submitted a forged High School marks-sheet which showed that he had secured 72 marks in Mathematics when, in fact, he had secured only 34 marks. In the enquiry, the department produced a letter from the Board of High School and Intermediate Education, U.P., Allahabad (hereinafter referred to as the Board), which had been sent under the registered cover, in response to the query made to it regarding marks secured by Respondent No. 1 in the High School Examination. According to the reply sent by the Board under its seal and under registered cover, the Respondent No. 1 had secured only 34 marks in Mathematics, where as in the marks-sheet submitted by him to the department, marks in Mathematics subject were mentioned as 72. The departmental enquiry was held on the ground of submission of forged marks-sheet. The main submission made on behalf of Respondent No. 1 before the Tribunal was that the delinquent employee had not been given an opportunity to challenge the veracity of the document filed. against him as the person who had prepared the document had not been examined as a witness. It was submitted that the verification letter dated 1.1.1994 sent by the Board had not been proved by the person who had prepared it or the person who was acquainted with his hand writing and the denial of this opportunity of the delinquent employee vitiated the enquiry and the enquiry officer was perfectly justified in holding that the charge had not been established. The Tribunal accepted the contention made on behalf of the delinquent employee and quashed the order of punishment imposed upon him. The finding recorded by the Tribunal is being reproduced below : "6. In our opinion, if this opportunity is not provided to the applicant, the purpose of holding the entire disciplinary proceedings is frustrated and it shall be against the principles of natural justice. In the present case, the inquiry officer clearly holds that the department failed to prove this document by examining the witness and tallying the document with the original on the basis with which it was prepared and thus, the charge against the applicant cannot be said to be proved. The disciplinary authority, however, disagreed with the view and has said that the document is proved as it was received under registered cover. In our opinion, this view on the face of it, shows lack of legal knowledge on the part of the disciplinary authority. He could not appreciate the purpose of holding the disciplinary proceedings in which an opportunity is given to the delinquent official to defend himself. He has not suggested any other mode by which the opportunity could be given to the applicant to disprove the information dated 1.1.1994, or challenge its veracity. The disciplinary authority has clearly committed an error of law which vitiated the proceedings. The appellate authority and the revisional authority have also not been able to appreciate this serious aspect of the matter which went to the root of the case."

We have heard Sri B. N. Singh for the Petitioner (Union of India) and Sri Swaraj Prakash for Sri Shrish Prasad Mishra, Respondent No. 1 (delinquent employee) and have perused the record.

In our opinion, the view taken by the Tribunal that the department having failed to prove the document sent by the Board by examining the witness and tallying the document with the original on the basis of which it was prepared, the charge levelled against the employee had not been established is erroneous in law. The Board conducts examination of very large number of candidates every year. In the year 2001, more than 33 lakhs students appeared in the High School and Intermediate examinations conducted by the Board of High School and Intermediate Education, U.P. Disputes regarding correctness or otherwise of the marks-sheet often arise. The long standing practice is that if a query is made from the Board in accordance with the rules and deposit of the prescribed fee, the Board sends the requisite information under its seal and in a registered cover. This document which is sent from the office of the Board is always accepted as correct. It is practically impossible for the Board to send one of its employees to prove the document every time a dispute arises.

The Board of High School and Intermediate Education, U.P. has been established in accordance with the U.P. Intermediate Education Act, 1921. u/s 74(1)(ii) of the Evidence Act, the records of the Board would be public documents. u/s 77 of the Evidence Act, certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies. u/s 63(1) of the Evidence Act, certified copies formally issued would be secondary evidence and they are admissible u/s 65(e) if the original is a public document within the meaning of Section 74 of the Evidence Act. Thus, the certified or authenticated copies sent by the Board under its seal are clearly admissible even in a court of law where complete provisions of the Evidence Act are applicable. That apart, we fail to understand as to how the delinquent employee has been prejudiced on account of non-examination of the person who had prepared the document which was sent from the office of the Board confirming the fact that he had secured only 34 marks in Mathematics and not 72 as shown in the copy of the marks-sheet submitted by him to the department. The Board maintains a tabulation register where marks secured by a student are recorded. The Board merely sends a copy of the marks and the said copies are prepared from the tabulation register. The only function of the person making the document is to prepare a copy from the tabulation register. He is not the author of the document. A person preparing a certified copy or an authenticated copy of a public document is never required to appear as a witness to prove the copy prepared by him even in regular proceedings before a court of law.

It is well-settled that the provisions of the Indian Evidence Act are not strictly applicable in departmental proceedings and, therefore, it is not relevant to consider if the facts have been proved according to law. It has been held in P. Joseph John Vs. The State of Travancore-Cochin, that the provisions of Indian Evidence Act are not strictly applicable to departmental proceedings and, therefore, it is not relevant to consider if facts have been proved according to law. It is permissible in a departmental enquiry to look into documents on record which, strictly speaking, would not be an evidence in a court of law but with one safeguard. Any document or record which is looked into or relied upon must be disclosed to the delinquent and he must be afforded an opportunity of dealing with it. In Union of India (UOI) Vs. T.R. Varma, , it was held that the Evidence Act has no application to enquiries conducted by Tribunals even though they may be judicial in character. The law requires that such Tribunal should observe rules of natural justice in the conduct of enquiry, and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that which obtains in a court of law. In State of Mysore Vs. S.S. Makapur, it was held that domestic Tribunals exercising quasi-judicial functions are not Courts and, therefore, they are not bound to follow the procedure prescribed for trial of actions in Courts nor they are bound by strict rules of evidence. In K.L. Shinde Vs. State of Mysore, , it was held that the departmental proceedings do not stand on the same footing as criminal prosecution in which high degree of proof is required. It was further held that departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act. In State of Haryana and Another Vs. Rattan Singh, , it was held that in departmental proceedings, the strict and sophisticated rules of evidence under the Evidence Act may not apply and there is no bar to hearsay evidence provided it has reasonable nexus and credibility. This view has been reiterated in Bank of India and Another Vs. Degala Suryanarayana, . Thus, it is well-settled that the strict rules of evidence are not applicable in departmental proceedings and the Tribunal has erred in holding to the contrary. It was always open to Respondent No. 1 to obtain another copy of the marks-sheet from the Board and to produce the same in order to rebut the evidence adduced by the department. However, he did not choose to do so for obvious reasons.

When the writ petition was heard for admission on 6.8.2002, we directed Sri Swaraj Prakash, learned Counsel for Respondent No. 1, who has filed a caveat, to produce the original copy of the High School marks-sheet. Respondent No. 1, thereafter, filed a counter-affidavit stating that he had submitted his original High School marks sheet before the Senior Superintendent of R.M.S., Gorakhpur, in pursuance of his letter dated 20.8.1993 and the same is not in his possession.

In order to ascertain the truth and to do complete justice between the parties, we directed Sri Kripa Shankar Singh, learned standing counsel for State of U.P., to produce the relevant record regarding the marks secured by Respondent No. 1 in the High School examination as the office of Board of High School and Intermediate Education is situate at Allahabad. In compliance of the said direction, the learned standing counsel for State of U.P. produced Tabulation Register No. 776 of High School examination of the year 1976. This register showed that Shrish Prasad Mishra, son of Sri Bhola Mishra, bearing Roll No. 793722, appeared in only one subject of Mathematics in the High School examination of 1976 and in the said subject, he secured only 34 marks. The learned standing counsel also produced before the Court the original counterfoil book from which High School certificates are issued to the students. The said book showed that the original High School certificate had not yet been issued to Shrish Prasad Mishra and the same was still contained in the certificate book. These facts are noted in the order-sheet of 4.9.2002. Under regulation 20 of Chapter XII of the regulations framed by the Board of High School and Intermediate Education, U.P., as they existed till the year 1983, a student was permitted to appear in the Board''s examination in only one subject either in the supplementary examination, which used to be held in August, or in a subsequent year, if he had failed only in one subject. It appears that Respondent No. 1 had appeared in the High School examination sometime prior to the year 1976 and he had failed in Mathematics. Thereafter, he again appeared in only Mathematics subject in the High School examination of the year 1976 and in the said examination he secured 34 marks. Since Respondent No. 1 had not furnished complete details of the earlier examination in which he would have appeared prior to 1976, his High School certificate had not been issued to him. A copy of the High School marks-sheet, which was submitted by Respondent No. 1 to the department, has been filed as Annexure-4 to the counter-affidavit (sworn by Shrish Prasad Mishra on 19.8.2002). This marks-sheet shows that his Roll No. was 793722 and he appeared in the High School examination in the year 1976 and he secured 72 marks in Mathematics. It further shows that he appeared in other subjects like Hindi, Science, Biology etc. in the same year, i.e., 1976. Obviously, the marks-sheet submitted by him to the department was wholly incorrect and a forged document. Sri Swaraj Prakash, learned Counsel for Respondent No. 1, when confronted with these documents could not give any reply to the facts which have been revealed by the original documents produced in the Court by the learned standing counsel for the State of U.P. His only reply was that Respondent No. 1 submitted the same marks-sheet which he had received. However, this kind of a stand cannot be accepted. It is, therefore, established beyond any shadow of doubt that Respondent No. 1 submitted a wrong and forged High School marks-sheet at the time of getting appointment in the department. The charge levelled against him was rightly found to have been established by the disciplinary authority and also by the appellate and revisional authority. The Tribunal committed manifest error of law in setting aside the order of removal passed against Respondent No. 1.

The Tribunal has also taken notice of the fact that Respondent No. 1 had been acquitted in the criminal case instituted against him on the same allegation. The fact that Respondent No. 1 had been acquitted in the criminal case, can have no bearing in the departmental proceedings as the standard of proof required here is entirely different. The purpose of holding departmental proceedings and criminal prosecutions are entirely different, as in a criminal case a person found guilty may be convicted and may be sentenced to undergo imprisonment while in a departmental proceeding, the punishment will be confined to his service only. That apart, now from the original documents of the Board, which were produced before us on the direction of the Court, it is fully established that the marks-sheet submitted by Respondent No. 1 was a forged document.

In the result, the Writ Petition succeeds and is hereby allowed. The judgment and order dated 26.4.2002 passed in O. A. No. 1235 of 1997 by the Central Administrative Tribunal, Allahabad, is quashed.