1. All the above-mentioned writ petitions shall stand decided by this common order as the issued involved is identical. For convenience, the facts are being taken from S.B. Civil Writ Petition No.9827/2016.
2. The prayer in the writ petition is to set aside the impugned show cause notice dated 09.06.2016 as well as the termination order dated 10.08.2016 passed by the respondents; with a further prayer that the experience certificate so issued in their favour be declared as valid and genuine.
3. In pursuance to the advertisement dated 21.10.2014, the petitioner applied for the recruitment on the post of Junior Cotton Purchaser. The petitioner was selected in pursuance to the written examination followed by an interview. The petitioner joined on the said post vide appointment letter dated 03.03.2015 on probation for one year from the date of appointment with a further stipulation that same was liable to be extended at the discretion of the appointing authority at any time. Subsequent to the appointment, the petitioner was made to undergo training conducted by the respondent Corporation. The petitioner successfully completed the same and the relevant certificate was also issued by the respondent department to the said effect. Suddenly, a show cause notice was issued on 9.6.2016 mentioning therein that the experience certificate submitted by the petitioner was false and that he had played fraud upon the Corporation and the appointment order is void ab initio. The petitioner submitted his reply to the show cause notice but the respondent department after finding the reply as not satisfactory, terminated the services of the petitioner vide order dated 10.08.2016.
4. While praying for setting aside the impugned order, the learned counsel for the petitioners submitted that the order of termination has been passed without holding any enquiry. The impugned notice and the impugned termination order show that the same is on the basis of specific allegation declaring that the petitioner has committed serious misconduct by indulging in fraudulent means to secure employment in the Corporation. Hence, the same could not have been passed without holding a proper enquiry and was one sided enquiry and therefore, not a proper enquiry under the law. It was contended that no doubt, the probation period of the petitioner had been extended and the order of termination was passed before confirmation, however, still a regular enquiry was necessary as the order, on the face of it, is stigmatic. Reliance is placed on the judgment rendered by the Apex Court in the case of Union of India & Ors. v. Mahaveer C. Singhvi :: (2010) 8 SCC 220 to contend that "if finding against probationer is arrived at behind his back on basis of enquiry conducted into allegations made against him/her and if same formed foundation of discharge order, same would be bad and liable to be set aside".
5. Learned counsel for the petitioner further contended that the enquiry report was submitted on the basis of an enquiry conducted by the Corporation at its own level. The petitioner requested that the enquiry report be supplied to him in order to enable him to file his reply. However, the same was not supplied causing prejudice to the petitioner and therefore, the very enquiry is vitiated. It is further argued that the certificate submitted by the petitioner was verified by the Corporation and scrutinised before he was subjected to interview and that there was no material on record to show that the experience certificate of the petitioner was forged or false. The respondent No.3 who issued the certificate has not denied that the certificate is false or forged. The respondent No.3 - Saraswat Cotton Company did not refuse the issuance of experience certificate as it was related for the period for which the petitioner has worked there and the salary was paid in cash and just because deductions were not made by the company during the tenure, it cannot be said that the experience certificate issued to him was false.
6. Reply has been filed. As per the reply filed by the respondents, the probation period of the petitioner was extended after completion of one year's probation vide order dated 9.3.2016 by another six months. The services of the probationer on the basis of an unsubstantiated experience certificate is liable to be terminated. No proof that he was working with Saraswat Cotton Company has either been filed in response to the show cause notice nor filed along with the writ petition and thus, the stand of the petitioner justifying the experience certificate does not inspire any confidence. During vigilance enquiry, it was revealed that employer Saraswat Cotton Company, Sri Ganganagar did not furnish any supporting or cogent material to support the disputed experience certificate. The petitioner did not even furnish any cogent evidence like salary register, pay slips, bank account details, PF deduction details, attendance register copy etc. to support his experience certificate. It is submitted that since the petitioner was still continuing on probation, there was no need to hold regular enquiry under CCA Rules. A show cause notice was issued to him. In reply to the show cause notice, he did not furnish any evidence at all. Neither his employer furnished any proof or was able to support the issuance of experience certificate.
7. Learned counsel for the parties were heard at length.
8. As per the advertisement, a candidate was required to have experience of minimum one year of dealing in any Agriculture Commodities in reputed organization/enterprise besides the other academic and professional qualifications. As per Clause 14 of the said advertisement, the services of a candidate were liable to be terminated at any stage, in case any part of the application form was found to be false or incomplete. Clause 14 of the advertisement reads as under:-
"If the information furnished by the candidate in any part of on line application is found to be false or incomplete or is not found to be in conformity with eligibility criteria mentioned in the advertisement, the candidature/appointment will be considered as revoked/terminated at any stage of recruitment process or after recruitment or joining, without any reference given to the candidate."
9. While filing the application form, the following declaration was required to be given by each candidate:-
"I hereby declared that all the statements made in the application are true, complete and correct to the best of my knowledge and belief. In the event of any information being found false/incorrect or ineligibility being detected before or after the interview/selection, my candidature will stand automatically cancelled."
10. As per the enquiry conducted by the respondent-authorities, the finding recorded against the petitioner Govind Ram in CWP No.9827/2016 is as under:
"This candidate had produced an experience certificate from Saraswat Cotton Company, Sriganganagar, Rajasthan. This firm had in the initial enquiry stated that the said candidate had been hired on temporary basis they had no record available with them. They said that they had paid him in cash and no statutory deduction was made. The vigilance team again visited the so called employer and asked for some conclusive evidence of employment. The firm has expressed its inability to provide any supporting document. It is thus clear that the firm does not have any proof to support the fake certificate that it gave to accommodate this candidate. Further during verification the firm has certified that the period of his employment is from 01/05/13 to 31/03/14 i.e. less than a year. The candidate in his on line application has stated that he has work experience from 01/05/13 to 15/10/14. Thus it is clear that the candidate has given false declaration regarding his employment tenure."
11. In this case, the experience certificate did not corroborate the period of experience filled in the application form. The argument that the experience certificate was verified from the employer does not help as the information in the application form is both incorrect and false. If the certificate is accepted, the experience comes to less than one year and in the application form, the experience is mentioned as more than one year. Further, no supporting document of pay slip, bank account or attendance register etc. is placed on record as submitted with reply to show cause notice.
12. In Civil Writ Petition No. 15006/2016, a show cause notice was issued on 8.6.2016 and the services of the petitioner were terminated on 16.09.2016. As per the enquiry conducted by the respondent-authorities, the finding recorded against the petitioner Praveen Kumar Jain is as under:-
"This Candidate had produced an experience certificate from Kanchan Udyog, Bijainagar, Dist. Ajmer. Rajasthan. This Firm had in the initial enquiry stated that the said candidate had been hired on temporary basis they had no record available with them. They said that they had paid him in cash and no statutory deduction was made. The vigilance team again visited the so called employer and asked for some conclusive evidence of employment. The firm told that they would send the documents within two days i.e. by 12/05/16. However till date they have not provided any documents. It is thus clear that the firm does not have any proof to support the fake certificate that it gave to accommodate this candidate."
13. A perusal of the para 11 of the petition - CWP No.15006/2016 in fact shows admission by the petitioner that the Ex-employer - respondent No.5 denied that any record of the services of the petitioner was available with him.
14. In Civil Writ Petition No. 7291/2016, a show cause notice was issued on 6.5.2016 and the services of the petitioner were terminated on 7.6.2016. Mr. Kuldeep Mathur, learned counsel for the petitioner contended that employer of the petitioner Mr. R.S. Gupta had verified that the petitioner had worked with him. Thus, the experience certificate cannot be said to be false. However, in his case too, as per the enquiry conducted by the respondent authorities, the finding recorded against the petitioner Nirdosh Kumar is as under:-
"Qua this petitioner, it has been submitted by the respondent authorities that similarly situated employee Shailender Kumar who had submitted experience certificate from Organic India Ltd. was affirmed by the Head Office to be in possession of the service record but the Head Office denied that they had any record of the present petitioner. Even the petitioner has not produced any document in support of his claim."
15. It was therefore submitted by the learned counsel for the respondents that if the Head Office had the record of a similarly situated person Shailender Kumar, then the non availability of the record of the petitioner in the Head Office shows that the certificate was obtained with connivance of the authority issuing the certificate. Moreover, no proof of salary etc. has been placed on record.
16. In Civil Writ Petition No. 14870/2016, a show cause notice was issued on 8.6.2016 and the services of the petitioner were terminated on 04.08.2016. In this case, the petitioner went ahead and submitted his resignation. However, his resignation was rejected. It is contended that the respondents should have accepted the resignation instead of passing the order of termination. As per the enquiry conducted by the respondent authorities, the finding recorded against the petitioner Vivek Kumar is as under:-
"In his experience certificate he has shown that he was working from 03/12/12 to 30/9/14 at Shree BL Agri. Products Pvt. Ltd., Dist. Sri Mukstar Sahib, Punjab. During the same period his father Shri Dharamchand was posted as Sr.CPO with the same firm from 09/12/13 to 12/11/14. In the preliminary enquiry made by this office the firm had stated that they had employed the said candidate but had no evidence of employment. They were given one more chance to corroborate their stand. On 12/05/16 when the vigilance team again visited them they still could not give any evidence of his employment except some attendance sheet and ledger copy for just 5 months. There is also difference in salary shown by the candidate as well as the so-called employer."
17. Thus, the only question is as to whether in the facts and circumstances of the case as above, where the certificate was found to be false, an employee who was on probation was entitled to a regular enquiry prior to his termination.
18. The Apex Court in the case of Avtar Singh v. Union of India :: 2016 (7) Scale 378 observed that only in case an employee is confirmed in service, holding of departmental enquiry would be necessary. The observations of the Court in para 25 reads as under:
"25. The fraud and misrepresentation vitiates a transaction and in case employment has been obtained on the basis of forged documents, as observed in M. Bhaskaran's case (supra) it has also been observed in the reference order that if an appointment was procured fraudulently, the incumbent may be terminated without holding any enquiry, however we add a rider that in case employee is confirmed, holding a civil post and has protection of Article 311 (2) due inquiry has to be held before terminating the services. The case of obtaining appointment on the basis of forged documents has the effect on very eligibility of incumbent for the job in question, however, verification of antecedents is different aspect as to his fitness otherwise for the post in question. The fraudulently obtained appointment orders are voidable at the option of employer, however, question has to be determined in the light of the discussion made in this order on impact of suppression or submission of false information."
19. In the present case, it has already been discussed above that not an iota of evidence was provided either by the alleged employer who issued the experience certificate, neither any such evidence was submitted by the petitioner along with his reply to the show cause notice and nor any document worth the name has been placed on record even before this Court along with the writ petition which gives rise to the conclusion that the petitioners have actually no cogent evidence at all and therefore, the suspicion surrounding the experience certificate was converted into confirmation of the fact that the said experience certificate was obtained in connivance with the said employer for the purpose of securing employment with the respondent-Corporation.
20. In these circumstance, where the very appointment is on the basis of a false information and certificate, this Court is of the considered view that the petitioner being on probation, is not entitled to the same right as available to a permanent employee. This view is supported by the decision of the Supreme Court in Union of India v. M. Bhaskaran :: 1995 Suppl (4) SCC 100 where their Lordships held thus:
"6.............. Therefore, it is too late in the day for the respondents to submit that production of such bogus or forged service cards had not played its role in getting employed in railway service. It was clearly a case of fraud on the appellant-employer. If once such fraud is detected, the appointment orders themselves which were found to be tainted and vitiated by fraud and acts of cheating on the part of employees were liable to be recalled and were at least voidable at the option of the employer concerned."
21. The judgment rendered by the Division Bench of Bombay High Court in the case of Chandrashekhar and Ors. v. State of Maharashtra and Ors. :: 2017(1) BomCR 577 while holding that a departmental enquiry would be necessary before passing order of termination/dismissal only in case of an employee is confirmed in service, relied on the judgments rendered by the Apex Court in the case of Union of India v. M. Bhaskaran :: 1995 Suppl (4) SCC 100 as well as on the judgment rendered by the Apex Court in the case of Avtar Singh v. Union of India :: 2016 (7) Scale 378, in its para 38 as under:-
38. (i) The respondent-MSETCL was within its right, authority and power to issue the impugned orders without requiring a departmental inquiry to be undertaken against the petitioners. The impugned orders, accordingly, are legal and valid.
22. There is no dispute with the law laid down in the case of Union of India & Ors. v. Mahaveer C. Singhvi(supra). However, the same does not help in the facts of the present case. In the said case, allegation was alleged on account of misconduct committed during the period of service, while performing his duties. Herein, the very appointment is based on false certificate produced by the petitioner and moreover sufficient opportunity to produce evidence of salary, attendance register, etc. in support of the work experience was provided to the petitioners but he failed to do so.
23. The larger Bench of the Apex Court in the case of R. Vishwanatha Pillai v. State of Kerala and Others :: (2004) 5 SCC 105 upheld the order of termination of the Deputy Superintendent of Police wherein the Government of Kerala on the basis of complaint had conducted a preliminary investigation and found that the appellant did not belong to the SC community but was appointed as a direct recruit to the post of Deputy Superintendent of Police against a seat reserved for Scheduled Caste on the basis of a certificate issued to him to the said effect. The appellant was issued a notice and after examining the documents produced by the appellant, the Scrutiny Committee rejected the appellant's claim. The Central Administrative Tribunal directed that the services of the petitioner be not terminated without following the procedure laid down under Article 311 and also under the Rules. The Kerala High Court reversed the decision after relying the judgment rendered in the case of Kumari Madhuri Patil v. Addl. Commr., Tribal Development :: (1994) 6 SCC 241. The order of the High Court was upheld by the Apex Court while relying on the judgments rendered in the case of Ishwar Dayal Sah v. State of Bihar :: 1987 Lab IC 390 as well as the judgment rendered by the Full Bench of Patna High Court in the case of Rita Mishra v. Director, Primary Education, Bihar :: AIR 1988 Pat 26 as under:-
"16. In Ishwar Dayal Sah v. State of Bihar the Division Bench of the Patna High Court examined the point as to whether a person who obtained the appointment on the basis of a false caste certificate was entitled to the protection of Article 311 of the Constitution. In the said case the employee had obtained appointment by producing a caste certificate that he belonged to a Scheduled Caste community which later on was found to be false. His appointment was cancelled. It was contended by the employee that the cancellation of his appointment amounted to removal from service within the meaning of Article 311 of the Constitution and therefore void. It was contended that he could not be terminated from service without holding departmental inquiry as provided under the Rules. Dealing with the above contention, the High Court held that if the very appointment to the civil post is vitiated by fraud, forgery or crime or illegality, it would necessarily follow that no constitutional rights under Article 311 of the Constitution can possibly flow. It was held:
"If the very appointment to civil post is vitiated by fraud, forgery or crime or illegality, it would necessarily follow that no constitutional rights under Article 311 can possibly flow from such a tainted force. In such a situation, the question is whether the person concerned is at all a civil servant of the Union or the State and if he is not validly so, then the issue remains outside the purview of Article 311. If the very entry or the crossing of the threshold into the arena of the civil service of the State or the Union is put in issue and door is barred against him, the cloak of protection under Article 311 is not attracted."
17. The point was again examined by a Full Bench of the Patna High Court in Rita Mishra v. Director, Primary Education, Bihar. The question posed before the Full Bench was whether a public servant was entitled to payment of salary to him for the work done despite the fact that his letter of appointment was forged, fraudulent or illegal. The Full Bench held:
"13. It is manifest from the above that the rights to salary, pension and other service benefits are entirely statutory in nature in pubic service. Therefore, these rights including the right to salary, spring from a valid and legal appointment to the post. Once it is found that the very appointment is illegal and is non est in the eye of law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise. In particular, if the very appointment is rested on forgery, no statutory right can flow from it."
18. We agree with the view taken by the Patna High Court in the aforesaid cases."
24. In each of the above present writ petitions, the petitioners had given an undertaking while submitting his application form for employment that all the statements made in the application were true, complete and correct and that in case the information was found to be incorrect or false, his service were liable to be automatically cancelled whether such information was detected before or after the interview/selection. Moreover, even as per the advertisement, the candidature/appointment was liable to be revoked at any stage of the recruitment process as well as the recruitment without any reference given to the candidate concerned in case the information with respect to the eligibility was found to be false in any manner.
25. In spite of their above stipulation in the advertisement and declaration as above, the respondents authorities issued a show cause notice to provide any proof in support of the experience certificate. As discussed above, not an iota of proof was provided. So much so, even before this Court, no document or evidence in support of experience certificate has been placed on record. Thus, for the sake of argument, even if a regular enquiry is ordered to be held, it would be a mere formality and futility.
26. In any case, identical writ petition has already been dismissed by the Division Bench of Bombay High Court in the case of Shri Gaurav W. Watane v. the Cotton Corporation of India Limited and Ors. (Writ Petition No.3137 of 2016) by holding as under:-
"We are unable to agree with Mr. Desai for more than one reason. The petitioner claimed by this certificate to have been employed with M/s Lucky Cotton Ginning and Pressing factory. The verification of this claim was carried out by the Respondent, a public sector/Government of India undertaking by approaching the so called employer. That employer denied any employer-employee relationship and stated that the employment was by the supervisor of the firm. Initially, that was not the claim of the said employer and it stated that it employed the Petitioner but paid the salary in cash. Later-on, it changed this version and stated that the said supervisor employed the Petitioner and paid him salary. Balu's version is directly contrary to the version of the said M/s. Lucky Cotton Ginning and Pressing. He does not say that he employed the Petitioner but the firm employed him. He states that he did not pay any salary or money but the firm employer paid the same. In the light of these contrary versions, the conclusion reached by the Respondent that the experience certificate is not genuine and reliable, cannot be faulted. This conclusion cannot be termed as perverse or vitiated by any error of law apparent on the face of the record."
27. A contradictory order dated 4.1.2017 has been passed by the Single Bench of High Court of State of Telangana and the State of Andhra Pradesh in WA No. 240 of 2017 & other connected matters by holding that the Corporation cannot take the stand that it is a termination simpliciter, therefore, without conducting a departmental enquiry into the allegations levelled against the petitioners, it is not open for the Corporation to terminate their services by passing the impugned orders.
28. However, the said order has been stayed by the Division Bench of the High Court of State of Telengana and State of Andhra Pradesh in WAMP No.509 of 2017 in WA NO.240 of 2017 :: The Cotton Corporation of India Ltd. & Anr. v. Janardhan Gopal Panchal & other connected matters by a detailed order. Para 17 of the said order staying the operation of the judgment passed by the Single Bench reads thus:-
"17. Whereas, in the cases on hand, the writ petitioners were not terminated due to any misconduct on their part or for their acquiring any disqualification while discharging their duties as Junior Cotton Purchasers. Here, the termination orders are passed after issuance of show-cause notices, clearly communicating the reasons for issuance of show-cause notices and ultimately finding that one year experience certificates filed by the writ petitioners are forged and fabricated. Had the said verification been made before the writ petitioners joined service, the 1st respondent corporation, without notice, would have abstained from issuing appointment orders. The writ petitioners can
Please Login To View The Full Judgment!
not take advantage of their own wrong, and seek enquiry as per rules of the Corporation before termination. In the case on hand, misconduct does not constitute the foundation of termination necessitating an enquiry being conducted to establish the charge. In Devendra Kumar's case (supra 6), the Hon'ble Supreme Court held that giving false declaration, which amounts to suppression of material facts, attracts the maxim, Nullus commodum capere potest de injuria sua propria, i.e. persons violating the law cannot be permitted to urge that a stigma is cast, regular enquiry is necessitated and that the termination is illegal. The termination is the result of filing a false certificate by the candidate himself in the process of selection and appointment. Where an applicant gets an order by mis-representing facts, or by playing fraud upon the competent authority, such an order cannot be sustained in the eye of law. Fraud avoids all judicial acts. A person, having done wrong, cannot take advantage of his wrong and plead bar of law. Since the termination orders do not relate to the petitioners' acquiring disqualification after they joined service; and they relate to false certificate being produced as proof of possessing the qualifications prescribed for selection and appointment to the post of Junior Cotton Purchaser, it cannot be said that a stigma is attached to them and a regular enquiry, as per the Rules, is necessitated." 29. In view of the above discussion, this Court finds no ground to set aside the impugned orders having been passed after holding fact finding enquiry and taking into consideration the reply to the show cause notice which in the facts and circumstance amounts to sufficient opportunity. The appointment of the petitioner was subject to verification of documents and other information provided in the declaration. The documents being verified as false, no right accrued to the petitioner to seek continuation in service. The petitioner could have utilised the opportunity to place some kind of proof along with its reply to the show cause notice but failed to do so. Neither has any document of salary/bank account/attendance register placed before this Court along with the writ petition. The experience certificate being false renders the very appointment as bad in the eyes of law. Therefore, the petitioners being on probation are not entitled to be treated the same way in the circumstances of the case as others who stand confirmed. The petitioner being wrongly appointed cannot be said to be holding a civil post as observed by the Apex Court in the case of R. Vishwanatha Pillai (supra). Moreover, as noticed above, similar writ petition has already been dismissed by the Division Bench of Bombay High Court. 30. The writ petitions are accordingly dismissed being devoid of merit.