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CASE NO.: Appeal (civil) 1477  of  2000

PETITIONER: AIR INDIA LTD.

       Vs.

RESPONDENT: M.  YOGESHWAR RAJ

DATE OF JUDGMENT:       02/05/2000

BENCH: D.P.Wadhwa, Ruma Pal

JUDGMENT:

RUMA PAL, J L.....I.........T.......T.......T.......T.......T.......T..J

     Leave granted.

     The  appeal  has been preferred from the order of  the High  Court of Bombay dated 18th September 1999 by which the High  Court issued a rule and granted interim relief on  the writ  application  filed  by the  respondent.   The  subject matter of challenge in the writ application was a show cause notice  dated  30th August, 1999 issued by the appellant  to the  writ petitioner The impugned show cause notice followed an  earlier  show  cause notice (referred to as  the  first notice)  issued  to  the  respondent by  the  appellant  on 29.12.1998.   It  was alleged in the first notice  that  the respondent  had  been given appointment by the appellant  in 1976  on  the  basis  of his claim that  he  belonged  to  a Schedule   Tribe  against  a   post  reserved  for  Schedule Caste/Schedule   Tribe.   A  caste   certificate  had   been submitted  by the respondent at the time of his  appointment which had been issued by the Tutor, Department of Pathology, Institute  of  Medical  Sciences, Osmania  Medical  College, Hyderabad  and  attested by the Tahsildar,  Hyderabad  Urban Taluk  without the signature of the concerned Tahsildar.  As the  caste  certificate was not in the prescribed form  from the competent authority, the respondent had been called upon by  the appellant to submit a proper certificate.   Pursuant to  this,  a caste certificate dated 4th February, 1998  had been  submitted  by the respondent.  It was alleged  in  the first  notice  that the caste certificate so produced was  a forged  document.  It was further stated in the first notice that  the  appellant was a prima facie of the view  that  it could not repose  any more confidence in any manner on the respondent  and  that the appellant was prima facie  of  the view,  having  regard  to nature of duty discharged  by  the appellant, that the respondent was not a person who could be retained in service.  The respondent was charged with breach of  clause  19 (2) (viii) of the Certified Standing  Orders. The  respondent  was  accordingly called upon to  submit  an explanation  in  writing within three days from the date  of

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communication  of  the  first notice failing  which  further disciplinary  action  would  be  initiated  against  him  in accordance  with the Certified Standing Orders.  By  letters dated  2nd  January,  1999  and   25th  January,  1999,  the respondent asked for extension of time to submit his written submissions.   It  was  granted by the  appellant.   On  Ist February,  1999 the appellant asked the respondent to submit his  explanation within three days from the communication of that   letter.    No  explanation   was  submitted  by   the respondent.   The Inquiry Proceedings were commenced on 12th February,  1999  to inquire into the charges framed  against the  respondent  under  the first  notice.   Witnesses  were examined  and an inquiry report was submitted on  29.4.1999. The  Inquiry Committee came to the conclusion that the caste certificate  dated 4th February, 1998 had turned out to be a bogus  certificate.  It was however noted that the  original caste  certificate  submitted by the respondent in 1976  had been affirmed by a certificate issued from the office of the Collector,  Hyderabad  on 11.3.1999.  The Inquiry  Committee was  of  the  view:   Merely  securing  a  wrong  or  false certificate, by itself does not amount to a misconduct.  The certificate  may  be false due to ignorance or  incompetence and  therefore  a  wrong  or   false  certificate  does  not necessarily  create  delinquency on part of the  person  who produces it.

     Accordingly,   the   Inquiry   Committee   found   the respondent not guilty of the charges framed.  It was in this background  that  the  show  cause notice  impugned  by  the respondent  before  the  High  Court   was  issued  by   the Disciplinary  Authority.   In substance, the  notice  stated that  the caste certificate dated 4.2.1998 had been found to be  forged.  As far as the caste certificate dated 11.3.1999 was  concerned  it was stated that the address mentioned  in the  Collectors  certificate had not been mentioned as  the respondents  place of residence in any of his records  with the  appellant.   It  was also stated that  the  Collectors letter did not refer to the caste certificate dated 4.2.1998 and  that if the 1976 certificate was genuine, it was to  be explained why the bogus caste certificate dated 4.2.1998 was produced.   According  to the notice, the Inquiry  Committee had  not  dealt  with  these details  in  its  report.   The Disciplinary  Authority  concluded by saying:   In view  of the  above  prima  facie  I  am of the  view  that  acts  of misconduct levelled against you vide chargesheet referred to above  has  been established and tend to hold you guilty  of the  acts  of misconduct and however before coming  to  such conclusions,  I hereby give you an opportunity to submitting your  say  as  to why you should not be held guilty  of  the above  charges within 3 days of communicating of this letter to  you.   In  case  you fail  to  submit  any  satisfactory explanation within the stipulated period of time.  I propose to  award you the punishment of dismissal from the  services of  the  Company without retirement benefits in full as  per Clause  No.   20  (  i ) of the  Certified  Standing  Orders applicable to you.

     Clearly, the Disciplinary Authority was yet to make up his  mind  as to the guilt of the respondent.  According  to the  appellants,  the  challenge  to  the  proceedings   was premature and the High Court should not have entertained the writ   application  as  disputed   questions  of  fact  were involved.   However, we do not wish to deal with this aspect of  the  matter as the High Court by the order under  appeal has issued a Rule Nisi and it will be open to the appellants

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to  raise this and other contentions in their answer to  the Rule.   We are not aware as to the reason why the High Court was  persuaded  to  issue a Rule Nisi, but  in  its  further observations,  Prima  facie,  we  are  satisfied  that  the petitioner belongs to the Schedule Caste/Schedule Tribe and also  grant  of  an interim order  staying  the  proceedings before  the  Disciplinary  Authority   were  erroneous.   It appears from a copy of the writ petition that the respondent has  not  questioned  the jurisdiction of  the  Disciplinary Authority  to issue the impugned Show Cause Notice.  The two issues  of  the  respondents  caste   and  whether  he  had adequately explained the production of the bogus certificate of  4.10.98  are  yet  to be  decided  by  the  Disciplinary Authority.   Both  the issues are primarily issues of  fact. The  High Court should not have preempted a factual decision of the disciplinary authority on the issues.  Nor should the High  Court  have  stayed the proceedings on a  prima  facie finding  on the subject matter of enquiry particularly  when the  competence  of  the Disciplinary Authority was  not  in doubt.   The  respondents reliance on the decision  of  Sur Enamel  and Stamping Works (P) Ltd.  V.  Their Workmen  1964 (3)  SCR 616 and State of Haryana V.  Om Prakash,  Constable 1990  (Supp) SCC 282 is misplaced.  In both cases, orders of dismissal  had already been passed.  Furthermore, the orders of  dismissal had been passed on proceedings which were  not the  subject matter of the charge and of which the  employee had  not  been put on notice.  In the case before us,  apart from  the  fact that no final order has been passed  by  the Disciplinary Authority, the substance of the impugned notice in  no way differs from that of the first notice.  The third decision  noted  by  the respondent viz.   State  of  Madhya Pradesh V.  Bani Singh & Another 1990 (Supp) SCC 738 is also inappropriate.    The  decision   related  to   disciplinary proceedings  initiated  in  respect of incidents  which  had taken  place  12  years  earlier.  It  was  said:     The irregularities  which were the subject matter of the enquiry is  said to have taken place between the years 1975-77.   It is  not the case of the department that they were not  aware of the said irregularities, if any, and came to know it only in  1987.   According to them even in April 1977, there  was doubt  about  the  involvement of the officer  in  the  said irregularities  and  the investigations were going on  since then.   If that is so, it is unreasonable to think that they would  have  taken  more  than  12  years  to  initiate  the disciplinary  proceedings as stated by the Tribunal.   There is  no satisfactory explanation for the inordinate delay  in issuing  the charge memo and we are also of the view that it will  be  unfair  to permit the departmental enquiry  to  be proceeded  with  at  this   stage.  Here  the  disciplinary proceedings were initiated against the respondent because of the  production of a bogus certificate dated 4.10.1998.  The disciplinary  proceedings were initiated on 29.12.98.  There was  no  delay.  Besides the respondent participated in  the enquiry  without  protest.  We, therefore, allow the  appeal and  set aside the order dated 18th September 1999 in so far as  it  stayed the operation of the show cause notice  dated 30th  August  1999  as well as the finding relating  to  the caste  of  the  respondent.  There will be no  order  as  to costs.