SCA/2175/1995 of KANUBHAI M CHAUHAN Vs COMMISSIONER OF HEALTH on 16 December 1995

ORAL JUDGMENT:

This petition exhibits how an employee who has gotpromotion by producing fake S.S.C. mark sheet has thecourage to approach this Court under Article 226 of theConstitution of India, praying for mercy to be granted.Brief facts of the case are to be noted for deciding this

2. The petitioner has entered in the service of theState of Gujarat in Medical Education and ResearchDepartment on 1-5-1961 when he was appointed as LaboratoryAttendant. From the post of Laboratory Attendant promotionhas been provided to the post of Laboratory Assistant, fromamongst the persons who possess the qualification of S.S.C.and have to their credit five years' experience on the lowerpost. The petitioner was not possessing the qualificationof S.S.C. and to get promotion and gains for himself heproduced fake mark sheet of S.S.C. Not only he producedfake mark sheet, but he got promotion also to the higherpost on 30th May, 1990. But for the fake mark sheet ofS.S.C., the petitioner would not have been promoted as hewas not eligible for the same.

3. Charge sheet was given to the petitioner by theDepartment, when it has come to the notice that thepetitioner, by producing fake mark sheet, got promotion.Reply has been submitted and the petitioner has, as it canbe inferred from the reading of the averments in the writpetition, admitted his guilt. A departmental inquiry hasbeen held and he was held to be guilty of the charge ofproducing fake mark sheet and getting promotion thereby. Hewas given a second show cause notice and at this juncture,having apprehension of major penalty, the petitioner hasapproached this Court by filing special civil applicationNo.1309 of 1994. A unilateral undertaking was filed by thepetitioner in the writ petition, copy of which has beenannexed to the present writ petition at annexure-F (page33). In that writ petition notice was issued, but nointerim relief appears to have been granted. Therespondents, having taken into consideration the gravemisconduct, have awarded the penalty of dismissal fromservice to the petitioner. This order of dismissal is thesubject of challenge in the present writ petition.

4. Reading of the writ petition gives out that thepetitioner has admitted his guilt and has not challenged theorder of dismissal on any ground whatsoever, except prayingfor mercy to be granted to him in the matter of punishment,by awarding the lesser punishment of withholding someincrements. Mercy has been prayed for on the ground that heis extremely poor person and further on the ground that hehas already given undertaking that whatever benefit he gotby way of promotion, he will return back and he will notchallenge the inquiry conducted by the Department, andfurther that he will accept any other punishment exceptdismissal, termination or removal from service.

Arguments

5. In para 7 of the writ petition the petitioner hasstated that in any case after so many years of service, itwas not necessary to send the petitioner at home. Not onlythat, but the petitioner was given an assurance that hisemployment will not be taken away. Therefore he had taken aparticular stand in the departmental inquiry. From theseaverments it is clear that the petitioner has admitted hisguilt, though, as stated earlier, from the writ petition itcan necessarily be inferred.

6. Only two fold contentions have been raised by the learned counsel for the petitioner. Firstly he hascontended that while awarding the penalty of dismissal theundertaking which has been given by the petitioner beforethis Court in special civil application No.1306 of 1994 wasnot under consideration. It has next been contended thatthe penalty of dismissal is excessive and disproportionateto the guilt, and lesser punishment should have been givenlooking to the fact that the petitioner is a poor person andlow-paid employee, he is in service since 1967 and he is theonly earning member of the family. On the other hand thelearned counsel for the respondents contended that thepetitioner has produced forged school leaving certificate ofDurga High School showing remarks of S.S.C. pass to theoffice and has fabricated false evidence in order to getpromotion for which he was not eligible in fact. It was anintentional and deliberate act on the part of thepetitioner, and a person who fabricates documents and getsbenefits should not have been shown leniency and he has beenrightly been dealt with by giving the penalty of dismissalfrom service. It has next been contended that so far as theunder taking of the petitioner is concerned, it is aunilateral action and that too for his own benefit which wasnot binding on the respondents. In the cases wheredocuments are forged for one's own gains and profits,minimum penalty should be removal/dismissal of the personfrom service as otherwise it will create a bad precedent andwill encourage people to indulge in creating false or forgeddocuments for their own gains. Lastly it has been contendedby the learned counsel for the respondents that in thematter of punishment to be awarded on proved misconduct,this Court sitting under Article 226 of the Constitutionnormally may not interfere.

7. I have considered the submission made by the learnedcounsel for the parties. In a case where the petitioner, onthe basis of forged mark sheet got promotion, for whichotherwise he was not eligible, I fail to see what punishmentother than dismissal should have been awarded. Thecontention of the petitioner that he is a poor person and assuch may not be severely dealt with, if accepted, then I

fail to see which are the cases in which extreme penalty ofdismissal, removal or termination has to be awarded. Incase a person who has forged document for his own benefitsis allowed to be retained in service on the ground that hewill be rendered jobless, it will encourage the people inGovernment service or services of Corporations or elsewhereto forge documents and get benefits. Also, they will becomefearless and carry the impression to do whatever they likeand this Court will come to their rescue on sympatheticgrounds.

8. Extraordinary jurisdiction under Article 226 of theConstitution is meant for advancement of justice, both legaland equitable, to rescue and give benefit to honest peopleand for protection of their rights, but not for the personsof the category of cheaters and forgers. On the basis ofthe petitioner's own unilateral undertaking and that too inthe language in which it was given, how he can escapehimself from the liability to be severely dealt with. Thisundertaking is not binding on the respondents. Only to getsome sympathy from this court at this stage, when secondshow cause notice was given, the petitioner filed thisundertaking and prayed that the punishment of dismissalshould not have been awarded. It is not the case where thisCourt has considered this undertaking in the previousproceedings and has directed the respondents not to awardthe penalty of dismissal, removal or termination. It isworthwhile to make reference to the under undertaking. Inpara 1 the petitioner has stated that he will return backthe benefits which he has received on account of promotion,and he will not challenge the inquiry conducted by thedepartment. How this undertaking has any relevance andbinding effect on the Department? Naturally when thepetitioner has got promotion on the basis of forged documenthe has to return all the benefits. Merely because he hasgiven undertaking that he will not challenge the inquiry,how it may come to his rescue in the matter of award ofpunishment? What the petitioner has next stated is that heshall accept any other punishment imposed upon him by theDepartment except termination, dismissal, removal fromservice. The petitioner by giving this undertaking assumesthe role of disciplinary authority or the appointingauthority. He wants to put to terms the disciplinaryauthority or the appointing authority in the matter ofpunishment to be awarded to him on proved misconduct. Howthis bargain, which the petitioner is proposing oranticipating, could have been there with the GovernmentDepartment and that too in the matter of disciplinaryproceedings and the ultimate punishment to be awarded onproved misconduct. I do find sufficient merit in thecontention of the learned counsel for the respondents that the undertaking has no binding effect on the respondents andthey are not bound by it.

9. In the matter of penalty to be awarded on provedmisconduct this Court has no power of judicial reviewsitting under Article 226 of the Constitution of India.What punishment should be awarded is absolutely in thediscretion of the appointing or disciplinary authority andthis Court sitting under Article 226 of the Constitutionwill not act as a court of appeal. This Court sitting underArticle 226 could not go into the question whetherpunishment which has been imposed on the delinquent isproportionate to the guilt or not. Sufficiency of penaltyto be awarded or what just and reasonable penalty is to beawarded are not the matters on which this Court should gointo. These are matters exclusively within the powers ofthe disciplinary authority dealing with departmentalinquiries, who has to form reasonable opinion aboutpunishment or penalty to be imposed on proved misconduct. Icannot do better than to refer to the decision of theSupreme Court on this question in the case of State Bank ofIndia & Ors vs. Samarendra Kishore Endow & Anr., JT 1994(1)SC 217.

10. The misconduct which has been alleged and foundproved is very serious, and otherwise also the punishmentimposed cannot be said to be excessive or disproportionate.In the present case where the petitioner who is a Governmentservant has forged document and got the benefit therebydeserved no sympathy whatsoever in the matter of award ofpenalty. Such Government servants should be chopped offfrom the service, otherwise retention of such persons inservice will not only encourage other persons to do illegalactivities but it will also spoil the whole atmosphere inthe Department.

11. In the result the writ petition fails and the sameis dismissed. Rule discharged, with no order as to costs.