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Friday, September 12, 2014

Service matter - while obtaining peon job showing less qualification is not such a grave offence to remove from service - High court in a writ order for reinstatement and also order to impose some penalty - Apex court confirm the same = CIVIL APPEAL NO. 4335 of 2007 LIFE INSURANCE CORPORATION OF INDIA & ORS ….APPELLANTS VERSUS TRIVENI SHARAN MISHRA ….RESPONDENT = 2014 - Sep. Month - http://judis.nic.in/supremecourt/filename=41863

Service matter - while obtaining peon job showing less qualification  is not such a grave offence to remove from service - High court in a writ order for reinstatement and also order to impose some penalty - Apex court confirm the same = 
 the   writ
petitioner  is directed  to  be  reinstated   in  service.   It  is  further
directed by the High Court that the appellant may  consider  to  impose  the
penalty against the present  respondent  as  was  awarded  in  the  case  of
Daluram Patidar, another employee of the appellant-Corporation.=
As  per  the  qualification  prescribed  by  the
appellant, a candidate was required to have  passed  Standard  IX,  but  the
candidates who have passed Standard XII and have secured 50% or more  marks,
Graduates or Post-graduates were not to be considered  for  the  post.   The
respondent (writ petitioner) in  his  application  (Annexure  P-3)  for  the
above post mentioned his qualification “Higher  Secondary  (XIth  old)”.  At
the end of the application dated    20th January, 1996,  a  declaration  was
made by the candidate (writ petitioner)  that he did not possess  any  other
qualification except the one mentioned in the application.   The  respondent
– writ petitioner appears to  have  got  selected  for  the  post  of  Peon.
However, after couple of  years  of  his  service,  it  was  found  that  he
possessed Bachelor’s Degree and he was pursuing M.A.(previous) in  Economics
at the time he applied for the post as above.   On this, the respondent  was
served with the charge-sheet by the appellant and departmental  enquiry  was
initiated.  On conclusion of the departmental enquiry, the respondent  (writ
petitioner) was found guilty of misconduct.   Consequently,  he  was  served
with the show-cause notice as to why he be not  removed  from  the  service.=

suppression of material information and making  false  statement  to  secure
the employment,  is a serious offence to attract the dismissal  of  service.
In this connection, learned senior counsel for the  appellants  referred  to
the case of Kendriya Vidyalaya Sangathan and Ors vs. Ram Ratan Yadav  (2003)
3 SCC 437. 
 But in our opinion, the aforesaid case  referred  on  behalf  of
the appellants cannot be  applied to the present case for  the  reason  that
in the said case the employee  had  concealed  the  facts  relating  to  his
character and antecedents.  In said case, the employee who was selected  for
the post of a Teacher  suppressed  the  information  that  a  criminal  case
relating to offences punishable under sections 323,  341,  294,  506-B  read
with section 34 of Indian Penal Code was registered against  him.  
As  such
the facts in the present case cannot be  equated  with  the  case  referred.
13. From the papers on record before us,  it  appears  that  for  mentioning
less qualification to secure the job, similarly  situated  another  employee
(one Daluram Patidar)  was let off by  the  Life  Insurance  Corporation  of
India by awarding punishment of stoppage of increments for  two  years  with
cumulative effect.  We are of the opinion that the High  Court  has  rightly
taken note of said fact while allowing the writ petition, and directing  the
employer to consider the imposition of similar penalty  after  reinstatement
of the writ petitioner.
14.      Therefore in view of the above  discussion,  we  do  not  find  any
sufficient reason to interfere with the impugned order passed  by  the  High
Court.  Accordingly, the appeal is dismissed. No order as to costs.
2014 - Sep. Month - http://judis.nic.in/supremecourt/filename=41863

REPORTABLE



            IN THE SUPREME COURT OF INDIA

                    CIVIL APPELLATE JURISDICTION


                        CIVIL  APPEAL  NO. 4335  of  2007



         LIFE INSURANCE CORPORATION
 OF INDIA & ORS                              ….APPELLANTS


                             VERSUS

       TRIVENI SHARAN MISHRA        ….RESPONDENT




                             J U D G M E N T



PRAFULLA C. PANT, J.


1.    This appeal is directed against  the  judgment  and  order  dated  6th
January, 2006 passed by the High Court of Madhya Pradesh  in  Writ  Petition
No. 542 of 2004 whereby the writ petition has been allowed,  and  the   writ
petitioner  is directed  to  be  reinstated   in  service.   It  is  further
directed by the High Court that the appellant may  consider  to  impose  the
penalty against the present  respondent  as  was  awarded  in  the  case  of
Daluram Patidar, another employee of the appellant-Corporation.
2.    Brief facts of the case are that Senior  Divisional  Manager  of  Life
Insurance Corporation of India, at Shahdol in order to recruit  peons  (sub-
staff)  invited   applications  from  the   qualified   candidates   through
Employment Exchange.  Pursuant to that, respondent - Triveni  Sharan  Mishra
submitted his application.  As  per  the  qualification  prescribed  by  the
appellant, a candidate was required to have  passed  Standard  IX,  but  the
candidates who have passed Standard XII and have secured 50% or more  marks,
Graduates or Post-graduates were not to be considered  for  the  post.   The
respondent (writ petitioner) in  his  application  (Annexure  P-3)  for  the
above post mentioned his qualification “Higher  Secondary  (XIth  old)”.  At
the end of the application dated    20th January, 1996,  a  declaration  was
made by the candidate (writ petitioner)  that he did not possess  any  other
qualification except the one mentioned in the application.   The  respondent
– writ petitioner appears to  have  got  selected  for  the  post  of  Peon.
However, after couple of  years  of  his  service,  it  was  found  that  he
possessed Bachelor’s Degree and he was pursuing M.A.(previous) in  Economics
at the time he applied for the post as above.   On this, the respondent  was
served with the charge-sheet by the appellant and departmental  enquiry  was
initiated.  On conclusion of the departmental enquiry, the respondent  (writ
petitioner) was found guilty of misconduct.   Consequently,  he  was  served
with the show-cause notice as to why he be not  removed  from  the  service.
On consideration of the  reply  submitted  by  the  respondent,  the  Senior
Divisional Manager, L.I.C. of India,  Shahdol  vide  his  order  dated  30th
October, 2000 (Annexure P-11), removed  the  respondent  -  writ  petitioner
from the service.  The said order was challenged by  the  respondent  before
the Departmental Appellate Authority  i.e.  Zonal  Manager,  Life  Insurance
Corporation of India, Delhi.  Upon consideration of the appeal submitted  by
the respondent  against  imposition  of  penalty  of  removal  in  terms  of
Regulation  39(1)(f)  of  the  LIC  of  India  (Staff)   Regulations,   1960
(hereinafter to be referred to as ‘the Regulations’) passed  by  the  Senior
Divisional Manager, Shahdol, the  Appellate  Authority  concurred  with  the
view taken  by  the  said  Authority,  and  dismissed  the  appeal  on  18th
February, 2003.
3.       Aggrieved by  said order, the respondent filed  writ  petition  No.
542 of 2004(s) before the High Court.   The High Court after  taking  action
and hearing the parties found that the qualification fixed  by  the  present
appellant that the candidate should not  possess  the  higher  qualification
than the IXth Standard, is violative of Article14  of  the  Constitution  of
India.  It further found that similarly situated another employee  with  the
department was inflicted with the penalty of stoppage of increments for  two
years with cumulative effect, as such the punishment  awarded  to  the  writ
petitioner was discriminatory.  Accordingly, the writ petition  was  allowed
by the High Court.  Aggrieved by the said decision of the High  Court,  this
appeal was preferred by the employer – Life Insurance Corporation of India.
4.    We have heard learned counsel for the parties and perused  the  papers
on record.
5.    The qualification prescribed by the appellant for the  post  of  peon,
as mentioned in Annexure P-1 reads as under:
“ b) Qualifications   A pass in ST.IX.  However Candidates  who  passed  XII
Std. and have secured 50% or more marks, graduates or  post  graduates  will
not be considered.

             Xx    xx     xx      xx         xx.”

 The charge-sheet served on the writ petitioner   is reproduced below:

            “ CHARGE SHEET


      You, Shri Triveni Sharan Mishra, SR no.704768, Sub  Staff,  Divisional
Office Shahdol are hereby charged as under:

 1.       That, in your application dated 20.01.1996 for the  post  of  Sub-
Staff, submitted to Shahdol Divisional Office of  LIC  of  India,  you  have
mentioned your educational qualification as  Higher  Secondary  (11th  old),
whereas your educational  qualification  at  that  time  was  of  Graduation
level, which was more than the desired qualification for the  post  of  Sub-
Staff.


2.           That you have got appointment for  the  post  of  Sub-Staff  by
fraudulently   making   false   statement    regarding    the    educational
qualification, whereas you had taken  admission  as  a  regular  student  in
Govt. Post Graduation College Shahdol in B.A.(Final) in academic year  1989-
90 and your Roll no. was 48717 to appear in the  examination.  And  in  year
1990-91 also you had taken admission as a Regular student in  M.A.(Previous)
Economics & to appear in the examination your Roll No. was 12696, which  was
deliberately suppressed by you.


3.     That in the declaration given on 22.03.1996 at the time of  interview
also,  you  have  suppressed  your  actual  educational  qualification   and
fraudulently  produced   the  duplicate  Transfer  Certificate   no.79,   of
Government Raghuraj Higher Secondary School  no.1,  Shahdol  in  support  of
your having passed XI th standard.
( The provisional list of the documents on the basis of  which  the  charges
are to be proved is enclosed)


      Your aforesaid act, is in contravention to rules  of  the  Corporation
and prejudicial  to  good  conduct,  thereby  violating  the  provisions  of
Regulations 21, 24 and 39(1) of the aforesaid (Staff) Regulations 1960,  for
which one or more of the penalties specified under Regulation 39(1)  (a)  to
(g) can be imposed on you.


      However, before I proceed further  in the matter, I  hereby  give  you
an opportunity to either admit or deny the aforesaid charges in writing.  In
case you admit the charges, a statement of admission and  in  the  event  of
your denying the charges, a statement of denial, together with the  list  of
documents by which and a list of  witnesses  through  whom  you  propose  to
defend your case may be submitted to the undersigned within a period  of  15
days from the date of receipt of this charge sheet.

      In case your written statement, as mentioned above,  is  not  received
within the stipulated period  or  if  it  is  found  to  be  unsatisfactory,
further proceedings  shall ensue without any reference to you.”


7.    The reply given by the writ petitioner  to above charge-sheet  to  the
Department is quoted below:

“To
              The Divisioal Manager I/C.
              LIC  of India
              Divisional Office
              Shahdol
              M.P.

                                     Through Proper Channel
              Dear Sir,
              RE: DISCIPLINARY PROCEEDINGS UNDER REGULATION 39  OF  THE  LIC
OF INDIA (STAFF) REGULATIONS, 1960 AND CHARGESHEET DATED 29.02.2000,  ISSUED
TO ME.
               With reference to above charge sheet,  my  submission  is  as
under :

  That I was an unemployed person, and I was in  dire  need  of  employment.
Therefore, when I got information regarding vacancy for  the  post  of  Sub-
Staff from Employment Exchange Office, I immediately applied  for  the  post
of Sub-Staff.


 It is true that the desired qualification for the  post  of  Sub-Staff  was
XIth pass along with other documents.


  Since  I  was  XIth  passed,  hence  I   had  mentioned   my   educational
qualification as XIth, as the additional  higher  qualification  was  not  a
constraint in fulfilling the responsibilities for the applied  post,  I  had
not disclosed it. By doing so I did not intend  to  suppress  my  additional
qualification.


 After having been appointed on the post of Sub-Staff, I  have  served   the
Corporation with  utmost  integrity,  honesty  &  capacity.  And  my  higher
qualification  has  been  useful  in  performing  my  duties   towards   the
Corporation. Thus I have not violated  the regulations 21 & 24.


  If I have unknowingly violated any rules & regulations, I regret  for  the
same. I have never intended to violate  the regulations.
                 With my aforesaid submission,  I  humbly  request   you  to
take a sympathetic view in my case and absolve me from  the  above  referred
charges.
                                                                       Yours
faithfully,
                                          Triveni Sharan Mishra
                                      Sub-staff, Divisional Office,
                                       Shahdol .R.No.704768.”

8.    It is not disputed before us that the respondent was already  graduate
on the date he submitted his application for  the  post  of  Peon,  and  the
declaration made by him in Annexure P-3 at the time  of  seeking  employment
that he possessed  no  other  qualification  was  incorrect.   The  question
before us  is  as  to  whether  the  qualification  as  mentioned  above  is
violative of Article 14 of the Constitution of India  or  not,   and  as  to
whether  awarding  punishment  of  removal  to  the  writ   petitioner,   is
discriminatory in the light of  the one awarded to  similarly  situated  one
Daluram Patidar  i.e. only punishment of  stoppage  of  increments  for  two
years with cumulative effect.
9.    Mr. B.B. Sawhney, learned senior counsel appearing on  behalf  of  the
appellants heavily relied in the case of  Kerala  Solvent  Extractions  Ltd.
Vs. A. Unnikrishnan and Anr. (2006) 13 SCC 619, and it is pointed  out  that
in said case the maximum educational qualification for  a  “badli”   workman
was  8th  standard,  and  the  respondent  of  said  case  had  made   false
declaration on which services of said workman were terminated.   This  Court
in said case quashed the award of the Labour Court dated  23rd  March,  1992
setting aside the  order  of  termination  dated  3rd  March,  1989  of  the
workman, and further set aside the  order   passed  by  the  High  Court  of
Kerala upholding the award of the Labour Court.
10.   We have carefully gone through the aforesaid case law.  In  said  case
issue involved was not whether or not maximum  qualification  can  be  fixed
for a Class-IV/Grade-D employee, nor was in said case the  employer  appears
to be either State or instrumentality of the State.   What  this  Court  has
held in Kerala Solvent Extractions Ltd. (Supra) is  that  the  Court  should
not be led by misplaced sympathy.  Paragraphs 9 and 10 of the said  judgment
are re-produced below:
“9.   Shri  Vaidyanathan,  learned  senior  counsel   for   the   appellant,
submitted, in  our  opinion  not  without  justification,  that  the  Labour
Court’s  reasoning  bordered  on  perversity  and  such  unreasoned,   undue
liberalism and misplaced  sympathy  would  subvert  all  discipline  in  the
administration.  He stated that the management will have no  answer  to  the
claims of similarly disqualified candidates which  might  have  come  to  be
rejected.  Those who stated the truth would be said to be at a  disadvantage
and those who suppressed it stood to gain.  He further submitted  that  this
laxity of judicial reasoning  will  imperceptibly  introduce  slackness  and
unpredictability in the legal process and, in the  final  analysis,  corrode
legitimacy of the judicial process.

10.  We are inclined to agree with these  submissions.    In  recent  times,
there is an increasing evidence of  this,  perhaps  well  meant  but  wholly
unsustainable tendency towards a denudation of the  legitimacy  of  judicial
reasoning and process.  The reliefs granted by the courts must  be  seen  to
be logical and tenable within the framework of the law and should not  incur
and justify the criticism that the  jurisdiction  of  the  courts  tends  to
degenerate into misplaced sympathy, generosity and private benevolence.   It
is  essential  to  maintain  the  integrity  of  legal  reasoning  and   the
legitimacy of the conclusions.  They must emanate logically from  the  legal
findings and the  judicial  results  must  be  seen  to  be  principled  and
supportable on those findings.  Expansive  judicial  mood  of  mistaken  and
misplaced compassion at the expense of the legitimacy of  the  process  will
eventually  lead  to  mutually  irreconcilable  situations  and  denude  the
judicial   process   of   its   dignity,   authority,   predictability   and
respectability”.


In our opinion, in the present case the High Court  has  rightly  relied  on
the law laid down by this Court in Mohd. Riazul  Usman  Gani  and  Ors.  Vs.
District & Sessions Judge, Nagpur and Ors. (2000) 2 SCC 606 wherein  it  has
deprecated the criteria of maximum qualification  for  the  post  of  peons.
Relevant parts of para 16 and para  18  of  the  said  judgment  are  quoted
herein below:
“16. In the present case we find that the candidates with  higher  education
than Standard VII were completely shut out  for  being  considered  for  the
posts of Peons.  The Recruitment Rules also  provide  for  promotion.   Rule
3(ii) we may quote:

   “(ii) The District Judge may promote-

a Peon, a Watchman, a Gardener, or a Sweeper to the post of Bailiff:


 a Peon, a Watchman, a Gardener,  a Sweeper or a Bailiff to the  post  of  a
Regional (Language) Section Writer, an English Section Writer  or  a  Clerk;
and


a Peon,  a  Watchman,  a  Gardener,   a  Sweeper,   a  Bailiff,  a  Regional
(Language) Section Writer, and English Section Writer  or  a  Clerk  to  the
post of Stenographer”.

Xx  xx  xx   xx    xx

18.      If  the  appointment  of  a  candidate  to  the  post  of  Peon  is
restricted to his having qualified up  to  Standard  VII  he  will  have  no
chance of promotion to the post  of  Regional  Language  Section  Writer  or
Clerk……………….”.


12.    However,  on  behalf  of  the  appellants  it  is   contended    that
suppression of material information and making  false  statement  to  secure
the employment,  is a serious offence to attract the dismissal  of  service.
In this connection, learned senior counsel for the  appellants  referred  to
the case of Kendriya Vidyalaya Sangathan and Ors vs. Ram Ratan Yadav  (2003)
3 SCC 437.  But in our opinion, the aforesaid case  referred  on  behalf  of
the appellants cannot be  applied to the present case for  the  reason  that
in the said case the employee  had  concealed  the  facts  relating  to  his
character and antecedents.  In said case, the employee who was selected  for
the post of a Teacher  suppressed  the  information  that  a  criminal  case
relating to offences punishable under sections 323,  341,  294,  506-B  read
with section 34 of Indian Penal Code was registered against  him.   As  such
the facts in the present case cannot be  equated  with  the  case  referred.
13. From the papers on record before us,  it  appears  that  for  mentioning
less qualification to secure the job, similarly  situated  another  employee
(one Daluram Patidar)  was let off by  the  Life  Insurance  Corporation  of
India by awarding punishment of stoppage of increments for  two  years  with
cumulative effect.  We are of the opinion that the High  Court  has  rightly
taken note of said fact while allowing the writ petition, and directing  the
employer to consider the imposition of similar penalty  after  reinstatement
of the writ petitioner.
14.      Therefore in view of the above  discussion,  we  do  not  find  any
sufficient reason to interfere with the impugned order passed  by  the  High
Court.  Accordingly, the appeal is dismissed. No order as to costs.




                               ………..………………,,,,,…..……….……J.
                                (SUDHANSU JYOTI MUKHOPADHAYA)



                       …………………………………………..J
                       (PRAFULLA C. PANT)

New Delhi
September 2, 2014.
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