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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: A.NAGAMALLESHWAR RAO

DATE OF JUDGMENT:       18/11/1997

BENCH: S.C. AGRAWAL, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI,J.      Leave granted.      The Union  of India  is challenging  in this appeal the order  passed   by  the   Central  Administrative  Tribunal, Hyderabad Bench O.A. No. 1139 of 1992.      The respondent was appointed as a Telephone Operator on 24th June,  1981 by  the Divisional Engineer, Telecom, Eluru on provisional  basis. By  an order  dated 20th May, 1983 he was appointed  on regular  basis.  On  8th  May,  1984,  the respondent was called upon to produce his original SSC marks certificate for  verification. he replied by stating that he had submitted  it along with his application for appointment and it was not returned to him. In spite of repeated demands he did  not submit  either the  original  certificate  or  a duplicate certificate.  The Divisional  Engineer, therefore, became suspicious  and made  an inquiry from the Head Master of the  school from  which the respondent had passed his SSC Examination. He was informed that the respondent had secured only 48.6%  marks. The respondent had represented earlier as disclosed by the entries made in the Z register, that he had secured 79.80%  marks. As  the respondent  was thus found to have obtained the employment wrongfully and in contravention of Rule  3(1) (1)  (iii) of the CCS (Conduct) Rules, 1964, a departmental inquiry  was held  against him.  The charge was held proved and an order of dismissal was passed against him on 29th March, 1989. Appeal filed against the said order was dismissed  by  the  Director  (Telecom),  Guntur  Area.  His revision application  to the  Telecommunication  Board  also failed. he,  therefore, filed the above said O.A. before the Tribunal.      The Tribunal on appreciation of the evidence of Sanyasi Rao, who  was examined  before the  inquiry officer to prove the practice and procedure followed in making entries in the Z register,  held that  his evidence  was  "useless  and  no inference could  be drawn  therefrom to  hold the article of charge proved."  As regards the extracts produced from the Z register  with   respect  to   the  entry  relating  to  the respondent, the  Tribunal held  that it  could not be relied upon as  it was secondary evidence and in the absence of any

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evidence to  prove authenticity  of the said extract, it was no evidence  in the eye of law. The Tribunal was of the View that although  such  a  departmental  inquiry  is  a  quasi- criminal inquiry  wherein technical  rules do  not  strictly apply and  the test  to be  applied is  of preponderance  of probabilities, yet  inferences can  be drawn  from the  acts and/or circumstances proved by legal evidence and not in the absence of  it. It  also observed  that  "inference  however cannot take  place of  proof as  the distance between ’might have been  made’ and  ’made’ has  not been  bridged  by  the prosecution  by   adducing  direct  evidence".  The  finding recorded by  the inquiry  Officer based upon the evidence of Sanyasi Rao  and the  extract of  entry from  the Z register that the  said entry  was made  on the  basis of information furnished by  the respondent was held by the Tribunal as bad on the  ground that  the original  application made  by  the respondent and  the certificate  produced by  him  were  not available for  perusal by  the Inquiry  Officer as they were found missing  from the  record and there was no material to show that  the respondent  had caused them to disappear. The Tribunal  preferred   to  rely   upon  the  version  of  the respondent that  he had submitted correct information in his application form  and also  the original certificate showing that he  had obtained  48.6% marks.  Taking this view of the evidence it held that the finding that the charge was proved was based upon no evidence and, therefore, the consequential order of punishment deserved to be quashed.      It  was  contended  by  the  learned  counsel  for  the appellant, and  in our opinion rightly, that the approach of the Tribunal was erroneous as it had provided to examine the inquiry proceedings  as if  it was  hearing an  appeal in  a criminal case.  Sanyasi Rao  was an  officer working  in the office  of  t  he  Divisional  Engineer  (Telecom)  and  was conversant with  the practice and procedure followed in that Office in  making entries  in the Z register, Merely because he had  no personal  Knowledge about the practice prevailing in 1980  and the  entry  relating  to  the  respondent,  his evidence could  not have been regarded by the tribunal as no evidence. The  tribunal had  committed an  error of  law and also exceeded  its jurisdiction  in holding that the extract which was  produced  from  the  Z  register  was  not  legal evidence and  could not have been relied upon by the inquiry officer. The Tribunal failed to appreciate that the register was maintained  in the  Office of  Divisional Engineer as an official record  and it  was thus  in the nature of a public document. It  was duly authenticated by a competent officer. The  Tribunal   after  stating  that  the  strict  rules  of procedure and  proof do not apply to a departmental inquiry, committed an  error in applying the same in this case. it is really surprising that in spite of the clear position of law in this  behalf and  as  regards  the  jurisdiction  of  the Tribunal in  such cases,  the Tribunal  thought  it  fit  to examine the  evidence produced before the Inquiry Officer as if it was a court of appeal.      Another flaw  in the  order passed  by the  Tribunal is that it  failed to  appreciate that  if the  respondent  had stated in  his application  form that  he had obtained 48.6% marks or had produced the certificate disclosing the correct percentage of  marks obtained  by him then he would not have been selected  at all as the candidate who had secured 70.6% marks was  the last  one to  be appointed. The Tribunal also failed to  appreciate that  in  spite  of  being  repeatedly called upon  to produce  either the  original certificate of marks or  a duplicate  copy, the  respondent had  failed  to produce the  same for  verification on  one pretext  or  the

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other. The  Tribunal also  failed to appreciate that but for the fraud  committed either  by the respondent himself or by him along  with others a false entry of marks could not have been made  in the register and that the original application form and the certificate could not have disappeared from the records of the Office.      Thus in  view of the admitted facts that the respondent had secured  only 48.6%  marks and  the last  candidate  who could be  appointed had  secured 70.6%  marks and  the other evidence produced  before the  Inquiry Officer,  it  becomes quite clear  that the  respondent  did  not  deserve  to  be appointed and  could not  have been  appointed but  for  the mistake committed  by the  concerned officer  or  the  fraud committed  by   the  respondent.  Therefore,  the  order  of termination cannot  be said  to be  improper or  bad and the Tribunal was in error in holding otherwise.      We, therefore,  allow this  appeal, set aside the order passed by  the Tribunal  and dismiss  the O.A.  filed by the respondent. There shall be no order as to costs. IN THE MATTER OF: