Donadi Ramesh, J.
1. Heard Sri Indra Raj Singh, learned counsel for the petitioner and Sri Sumit Kakkar, learned counsel for the respondents.
2. The petitioner by the instant writ petition seeks quashing of the impugned order dated 29.11.2021 and 27.01.2022 passed by respondent no. 1 and 2 (Annexure Nos. 20 and 23).
3. The petitioner having graduate degree is eligible for the post of clerical staff. Pursuant to the notification, he has submitted Online application form for selection in State Bank of India. The petitioner was issued an admit card bearing Roll No.2201047741 with Registration No.4136762 for appearing in the written examination scheduled to be held on 15.11.2009. Accordingly, the petitioner had appeared in the written examination on 15.11.2009 at Jwala Devi Vidya Mandir Post Graduate College, Anand Bag, Kanpur. The said examination was conduced in the presence of two invigilators including Bank invigilator. At the time of examination, the invigilators have matched the physical presence of the petitioner by verification of photographs, signatures and thumb impressions and after being fully satisfied, permitted the petitioner to appear and participate in the written examination. Accordingly, the petitioner passed the aforesaid written examination and was declared successful. Thereafter, he was called for interview which was scheduled to be held on 27.04.2010. The interview Board has verified the required documents in the presence of petitioner and after full satisfaction of the Bank Officials, interview has been conducted and final results were declared on 16.12.2010 in which the petitioner was declared as selected and the petitioner joined the said post of Assistant in S.B.I., Industrial Area Branch Khalilabad, District Sant Kabir Nagar on 16.12.2010. He discharged his duties with utmost satisfaction of authorities and basing on his performance, the authorities have recommended for confirmation on the post vide order dated 21.03.2012. Accordingly, his services were confirmed vide order dated 24.03.2012.
4. Under the misconception of facts, the third respondent had issued a charge memo on 03.09.2015, which reads as under :-
"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."
5. Against the said charge, the petitioner has submitted his explanation on 09.09.2015 whereas the respondents were not satisfied with the explanation, therefore, the respondents conducted an enquiry and based on the report of incompetent hand writing expert Sri R. Krishna, declared charges to be proved against the petitioner. Based on the said inquiry report, the third respondent without application of mind passed an order on 04.05.2016 by dismissing the petitioner from service, as against the petitioner filed an appeal before the respondent no. 4 bringing the relevant facts to the notice of the Appellate Authority with prayer to set aside the punishment order. The appeal was rejected by the fourth respondent vide order dated 12.08.2016 in routine manner.
6. Aggrieved by the above action of the respondents, the petitioner preferred writ petition being Writ-A No. 48511 of 2016 (Rabindra Kumar vs. State of U.P. and 5 others) and after exchange of counter and rejoinder affidavits, the said writ petition was disposed of vide order dated 24.04.2018 with the following direction, which reads as under :-
“Whether there was any photo mixing or not, was a matter which could have been examined by the enquiry officer at least during the course of the enquiry. Even though it may not have been possible in the invigilation /examination centre it self but nothing of the kind was done and the enquiry report was based entirely upon the report of R. Krishna, the hand writing expert who was not even a registered handwriting expert. There is nothing on record to show that) the petitioner had declined that R. Krishna be produced in the enquiry to prove his reportor that he has declined to cross-examine R. Krishna and that he has accepted the report of the handwriting expert. The statement of the petitioner given during the enquiry has not been filed by the respondents to show that the petitioner at any time had declined to summon Sri R. Krishna or that he had accepted the report of the handwriting expert R.Krishna. The fact of the matter remains that R. Krishna on whose report the entire enquiry report has been based and which has been accepted by the disciplinary authority and the appellate authority was never produced in the enquiry to prove his report which was a duty castupon the respondents holding the enquiry. The disciplinary authority and the appellate authority have also not considered these various aspects of the matter. Therefore, I find that there has been gross infraction of principles of natural justice and the petitioner has notbeen given reasonable and adequate opportunity to meet the report of the handwriting expert. Such an enquiry cannot be said to be a reasonable or fair enquiry. The order of the disciplinary aut hority as well as the appellate authority which are based on such an enquiry report are therefore, vitiated and are accordingly, set aside.
The writ petition is allowed.
However, it will be open for the respondents to proceed against the petitioner afresh after giving him an opportunity of examination and cross examination of Sri R. Krishna during the enquiry and lead whatever evidence he may want, to contradict the reportof the handwriting expert Sri R. Krishna.”
7. Despite the above directions, the respondents have not reinstated the petitioner into service nor paid the salaries. Hence the petitioner has pressed Contempt Application (Civil) No.3685 of 2018. This Court issued notice to the respondent on 03.08.2018. Thereafter, this Court further passed an order on 30.12.2018 regarding quantum of sentence. Based on the order of this Court, passed in the contempt application, the petitioner was reinstated at Salempur Main Branch, State Bank of India, Deoria vide order dated 30.08.2018.
8. Again respondent no. 3 by order dated 01.10.2018 placed the petitioner under suspension and appointed one Sri Ritesh Sagar as Inquiry Officer, directing the petitioner to participate in the inquiry. Thereafter, the Regional Manager S.B.I., Gorakhpur had issued letter on 05.04.2021 annexing the inquiry report dated 21.07.2021 prepared by the Inquiry Officer and Assistant General Manager. To the said inquiry report, the petitioner has submitted his objections before the Assistant General Manager, S.B.I., Gorakhur through registered post dated 12.04.2021 and without considering the objections filed by the petitioner, a tentative punishment order was issued on 13.09.2021 by asking the petitioner to appear on 20.09.2021. Again the petitioner submitted his objection on 16.10.2021 and without taking into consideration, the respondent no.1 has passed the impugned punishment order on 29.11.2021, dismissing the petitioner from service.
9. Aggrieved by the above said order, the petitioner has preferred an appeal before the second respondent by bringing the facts and also raising several grounds prayed for setting aside the tentative and final orders and reinstate the petitioner into service but without considering the grounds raised by the petitioner, the appeal has been rejected in mechanical manner.
10. Assailing the same order, the present writ petition has been filed.
11. After notice, one Sri Sunil Kumar Maharaj, Chief Manager, State Bank of India, Salempur Branch, District Deoria has filed counter affidavit on behalf of the respondents wherein he has stated that as per 11th Bipartite Settlement dated 11.11.2020, the employee who has been awarded the punishment of dismissal, compulsory discharge or removal from service by the Disciplinary Authority and subsequently where the punishment is confirmed by the Appellate Authority, shall be given an opportunity to seek reconsideration by an authority higher than the Appellate Authority. Therefore, after rejection of the appeal by the Appellate Authority, the petitioner could have availed an alternative remedy for reconsideration before the competent authority of the Bank rather than filing the instant petition, hence the same should be dismissed on the ground of availability of an alternative remedy to the petitioner. Further, as per the Bipartite Settlement between the State Bank of India and Employees’ Union as such the petitioner is a “workman” within the definition of workman as provided under the Industrial Disputes Act and the petitioner’s dismissal is deemed to be an Industrial Dispute within the provisions of Section 2A of the Industrial Disputes Act, 1947. Even on this ground, the writ petition has to be dismissed.
12. The petitioner appeared in the written examination by impersonation, when the same was verified then it was found that the thumb impression of the person who appeared in the written examination on 15.11.2009 at Jwala Devi Vdya Mandir Post Graduate College, Anand Bagh, Kanpur and the person who joined the Bank on 15.12.2010, are different. Photograph available on call letter at the time of appearing for written examination was also not matching as such he was suspended and disciplinary proceedings were initiated against him. On the basis of material evidence on record, the respondents have held that the charges levelled against the petitioner have been proved and it has been found that signature and thumb impression of the person who appeared in the written examination on 15.11.2009 and the person who joined in the Bank on 15.12.2010 are different. In fact, the petitioner was given an opportunity by Inquiry Officer to cross examine the handwriting expert but he refused to do so, inasmuch as the Appellate Authority has recorded a finding that the report submitted by Sri R. Krishna, on the basis of evidence and facts, cannot be sidelined on the basis of non-government and non registered entity. Neither the inquiry conducted is vitiated nor it is illegal inasmuch as after scrutinizing the entire material on record as well as after giving full opportunity to the petitioner, the orders have been passed by the respondents. As the petitioner has played fraud upon the Bank in getting the appointment by falsification / impersonation, service of the petitioner has rightly been terminated after holding proper inquiry and after giving full opportunity to the petitioner. There is no violation of principles of natural justice or any procedure contemplated under Rules. Hence the writ petition is liable to be dismissed.
13. Based on the above pleadings, the learned counsel for the petitioner has emphasise his arguments that the respondents have issued charge sheet for extraneous considerations as the petitioner has appeared to the written examination conducted by the respondents and at the time of written examination, two invigilators are present and they have verified the petitioner and also taken photographs, thumb impressions and signature. Accordingly, on the basis of the result, the petitioner was selected and appointed and based on his performance in the duties, the petitioner has been awarded best employee awards for continuous three years.
14. Though the above charges have been framed but no proper inquiry has been conducted by the respondents before giving punishment order. The same was taken into consideration by this Court in Writ-A No. 48511 of 2016. The said writ petition was disposed of by making a remark that there was no photograph mixing though it may not have been possible in the invisilative / examination centre itself and nothing of kind was done and the inquiry report was entirely based on the report of R. Krishna, the handwriting expert who was not even a registered handwriting expert and further it has been noted that Disciplinary Authority and Appellate Authority have also not considered the various aspects of the matter and recorded the gross infraction of principles of natural justice and accordingly the impugned orders were set aside but liberty was granted to the respondents to proceed against the petitioner afresh after giving him an opportunity of examination and cross-examination of Sri R. Krishna during the inquiry who may lead whatever evidence he wanted to produce regarding report of the handwriting expert.
15. Based on the above observations for conducting a re-inquiry the respondents have issued notice and directed the petitioner to crossexamine Sri R.Krishna. When the petitioner denied the opportunity and took specific stand that the said R. Krishna is not a registered handwriting expert nor is attached to any government pharmaceutical laboratory nor he possess any technical degree to qualify him as handwriting expert but before considering the said objection taken by the petitioner, the respondents proceeded only on the ground that this Court has given an opportunity to the petitioner to cross-examine the R. Krishna during the inquiry. When the petitioner has taken specific stand regarding incompetence of the handwriting expert, inquiry Officer has submitted his report with the following observation :
“I, therefore, is of the opinion that the inquiry has been conducted for third time (Charge-sheet) 13.01.2020, 27.07.2020 and 27.01.2021) and enough opportunity have been provided to the CSE to re-examine Shi R Krishna report as per Hon’ble High Court order dated 24.04.2018. The DR and CSE appear purposely not cross verifying he Handwriting Expert report and were trying to question the degree and qualification of Sh R Krishna repeatedly. This seems to be delaying of the process of Inquiry of Inquiry. The crossexamination opportunity was given by Hon’ble High Court, which they were not ready to carry out.”
16. The petitioner has submitted his reply on 12.04.2021, which reads as follows : -
"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."
17. Surprisingly without considering the specific objection taken by the petitioner, the respondents have passed the tentative punishment order on 13.09.2021 by giving an opportunity once again and the same orders have been confirmed and final order has been issued by the respondent vide order dated 29.11.2021, which reads as follows :-
“FINAL ORDER.
STAFF:AWARD.
DISCIPLINARY PROCEEDINGS – NON VIGILANCEGROSS MISCONDUCT.
SHRI RABINDRA KUMAR, ASSOCIATE (U/S) (PF No 6599540).
BRANCH :SALEMPUR (CODE – 01146).
PERSONIFIED HIMSELF BY SOMEONE ELSE (as solver) WHILE APPEARING IN WRITTEN EXMINATION.
During the Banks written examintion process, Shri Rabindra Kumar, Associate (Charge-sheet) u/s) PF -6599540, had personified himself by someone else (Charge-sheet) as solver while appearing in written examination held on 15.11.2009 at Jwala Devi Vidya Mandi Post Gaduate College, Anand Bagh, Kanpur and as per Forensic Expert report, the thumb impression and signature obtained during written examination do not match with the thumb impression and signature obtained at the time of interview / joining in the Bank.
Disciplinary Penalty Proceedings under “Gross Misconduct) ” under clause 5 (Charge-sheet) and 5 (Charge-sheet) of Memorandum of Settlement dated 10.04.2002 between IBA & Workmen Unions and Bank Level Settlement dated 07.04.2016 as amended / modified by Bipart ite Settlement dated 11.11.2020 between IBA & Workmen Unions, were initiated against Shri Rabindra Kumar Associat) e PF ID 6599540 vide charge sheet dated 03.09.2015 served upon Shri Rabindra Kumar Associate, on 04.09.2015 for following lapses committed by Shri Rabindra Kumar Associate :
"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."
2. Tentative Order dated 13.09.2021, forwarded vide Letter No. BCDM) /1251 dated 13.09.2021, was served upon the CSE, Shri Rabindra Kumar, Associate, PF ID 6599540 which, he acknowledged on 16.10.2021 and also Shri Rabindra Kumar, Associate, appeared personally for personal hearing with undersigned on 23.11.2021.
I have once again considered all the papers of the above case and personal hearing with Shri Rabindra Kumar on 23.11.2021, I do not find any reason to change my tentative order. I, therefore, confirm the tentative order dated 13.09.2021 and finally decide that Shri Rabindra Kumar (PF ID 6599540), Associate (u/s), be served upon the penalty of “Be Dismissed from Bank Service without notice” under Clause 6(a) of Memorandum of Settlement dated 10.04.2002 between IBA & Workmen Unions and Bank Level Settlement dated 07.04.2016 as amended / modified by Bipartite Settlement dated 11.11.2020 between IBA & Workmen Unions.
3. A copy of the Final order is to be placed in the CSE’s service file. If Shri Rabindra Kumar, Associate, desires to prefere an appeal against my Final order of date, Shri Rabindra Kumar, Associate may do so within 45 days from the date of receipt of the Final Order under the provision of Clause 14 of Memorandum of settlement dated 10.04.2002 between IBA & Workmen Unions and Bank Level Settlement dated 07.04.2016 as amended / modified by Bipart it e Settlement dated 11.11.2020 between IBA & Workmen Union.”
18. As against the petitioner has filed an appeal before the second respondent wherein he has taken specific grounds that inquiry officer in his inquiry report dated 27.01.2021 has not himself examined any documents and material and without any basis as well as without recording any independent finding held charge to be proved against the petitioner herein and submitted his report solely based on the opinion of the handwriting expert Sri R. Krishna which is unsustainable. Further, Sri R.Krishna cannot be said to be a handwriting expert as he is simply B.Sc., LLB, MA (Criminology and Forensic Science) and he was not appointed an Assistant Professor, Criminology and Forensic Science in Sagar University, Madhya Pradesh.
19. The said R. Krishna has never been recognized and appointed as handwriting expert in any government forensic labs or institutions. Hence the alleged handwriting expert report is not a conclusive written and the same cannot be made as basis to dismiss the appeal.
20. It was incumbent upon the inquiry officer to call the two invigilators who were present at the time of examination and summoning the original attendance register, call letter, admit card and the documents which were prepared at the time of interview containing signatures, photographs of the appellant to compare the same in presence of the appellant which was not followed by the inquiry officer. Even it is an obligation on the part of the Bank to summon all interview board members and the original registers containing the signature and thumb impressions obtained during the interview for verification.
21. In fact, the appellant had appeared before the Inquiry Officer on 03.11.2021 before the Disciplinary Authority and pressed the facts and also requested to consider his representation dated 16.10.2021. He has also raised specific ground that the Inquiry Officer has not made any inquiry or recorded any independent findings against the charges except relying on the report of alleged handwriting expert of Sri R. Krishna and the appeal has been dismissed by the second respondent vide order dated 27.01.2022 with the following observations, which reads as follows :-
“4. I have carefully examined the ground raised by Shri Rabindra Kumar in his appeal in the light of relevant records of the case and may observations are as under:
The appellant has not brought out any new fact s to rebut the allegations. In compliance to Hon’ble High Court order, ample opportunity give to him to cross examine report and certificates submitted by hand writing expert, but) he refused to do so and doubt the legality of certificates and report. Therefore, Bank have take his action tantamount to the Gross Misconduct.
5. I have gone through the appeal preferred by Shri Rabindra Kumar, Associate and the related case papers in it sentirety. I do not find any worthwhile grounds in the appeal that would warrant interference with the order of the Disciplinary Authority. The quantum of penalty imposed is considered equitable and commensurate with the nature of allegations held as established. The appeal is turned down and the order is passed accordingly.”
22. Learned counsel for the petitioner has submitted that on perusal of the entire inquiry report, it clearly shows that the Inquiry Officer has not conducted any independent inquiry with regard to the charges framed against the petitioner except relying on the report submitted by Sri R. Krishna in which he has stated that enough opportunity has been provided to the CSE to re-examine the Sri R.Krishna which he has refused to crossexamine the R. Krishna report and certificate has been submitted that legality of petitioner is doubtful, therefore, the Bank may take against him as it may deem fit. Based on the above inquiry report without application of mind the Disciplinary Authority has passed an order stating that after examining the matter carefully, going through the case and taking consideration of the gravity of lapses, the dismissal order was passed against the petitioner. Even the Appellate Authority has not at all considered the facts and also ground raised by the petitioner and simply extracted the entire appeal in the impugned order and dismissed appeal accordingly.
23. Learned counsel for the petitioner further submits that the Inquiry Officer, Disciplinary Authority and the Appellate Authority have not applied their mind while deciding the issue. The petitioner has taken specific objection with regard to the appointment of Sri R. Krishna as handwriting expert as he has not a qualified or government handwriting expert. However, he has not having any specific qualifications for handwriting expert. So report which was submitted cannot be taken into consideration. No specific averments or assertions made either by the Inquiry Officer or by the Disciplinary Authority in this regard. Hence, on this ground, alone the punishment order imposed by the Disciplinary Authority has to go. Further, the learned counsel emphasised his arguments that while dealing with the matter of such nature, it is incumbent upon the Inquiry Officer to call for the entire record pertaining to examination centre, interview Board’s record and finally to send both documents to the forensic laboratory to get a clear report but in the instant case no such procedure has been followed by the Inquiry Officer. Further he has not taken any care to call for the record pertaining to examination centre records as well as interview Board’s record.
24. Despite the petitioner has made a specific request to look into those aspects before taking into consideration of the report submitted by Sri R. Krishna, who is an ineligible person but surprisingly Inquiry Officer has submitted inquiry report solely based on the report submitted by the handwriting expert Sri R. Krishna and Disciplinary Authority has also taken into consideration of the report submitted by the Inquiry Officer and passed the impugned order.
25. Perusal of both the orders Disciplinary Authority as well as Appellate Authority, it appears that they have not even cared to refer the objections raised by the petitioner and no finding has been given to that effect. Surprisingly, the Appellate Authority also has not given any reasons except stating that record has been perused.
26. To support his contention, learned counsel for the petitioner has relied on the decision of this Hon’ble Court in the case of Ran Vijay Singh v. Union of India reported in 2018 (4) AWC 3581. [LQ/AllHC/2018/2254] particularly Paragraphs 22, 23, 24, 25, 26 and 27, which reads thus :
"22. A learned Single Judge of this Court in Rajesh Kumar (Charge-sheet) supra had examined a similar controversy, where services of a probationer was dispensed with by the Bank, on the ground that he had cleared recruitment exam on the basis of impersonation. This Court observed that handwriting expert's opinion is at best an expert opinion, which is not conclusive. Observation of the learned Single Judge is apposite for our purposes and is reproduced hereinafter:-
"Expert opinion is only an opinion and has been considered to be of a very weak nature. The decision of the bank is based on the expert opinion alone to establish the guilt of impersonation.
In Gulzar Ali Vs. State of Himachal Pradesh the Supreme Court observed that) the observation of the High Court that) there is a natural tendency on the part of an expert witness to support the view of the party who called him, could not be downgraded. M any so-called expert s have been shown to be remunerated witnesses making themselves available on hire to pledge their oath in favour of the party paying them.
This Court considering large number of judgments in Tika Ram vs. Daulat Ram7 held as follows:-
"9. Evidence of an expert is only an opinion. Expert evidence is only a piece of evidence and external evidence. It has to be considered along with other pieces of evidence. Which would be the main evidence and which is the corroborative one depends upon the facts of each case. An expert's opinion is admissible to furnish the Court a scientific opinion which is likely to be outside the experience and knowledge of a Judge. This kind of testimony, however, has been considered to be of very weak nature and expert is usually required to speak, not to facts, but to opinions. It is quite often surprising to see with what facility, and to whatextent, their views would be made to correspond with the wishes and interests of the parties who call them. They do not, indeed, wilfully misrepresent what they think, but their judgment becomes so warped by regarding the subject in one point of view, that, when conscientiously deposed, they are incapable of expressing a candid opinion."
The Court has made the observation in trial, treating handwriting expert evidence as being opinion evidence. In service jurisprudence allegation has to be proved on preponderance and not beyond reasonable doubt . But the delinquent employee has to be confronted with the evidence as it is rebuttable.
Applying the law on the facts of the case, a perusal of the report) dated 5.7.2011 submitted by one R. Krishna (Charge-sheet) B.Sc., L.L.B., M) .A. (Charge-sheet) Criminology & Forensic Science) Consulting Forensic Expert formerly Assistant Professor of Criminology & Forensic Science (Charge-sheet) Sagar University rendered the following opinion which is extracted below:
On a very careful examination of the signatures, thumb impressions and photographs of the above referred person, I am of the following opinion:-
(Charge-sheet) a) The signatures made on Call Letter at the time of examination does not match with the other standard signatures of Sri Rajesh Kumar. The reasons of my opinion are in Annexure No. 1.
(Charge-sheet) b) The thumb impression on the Call Letter, which is expected to be of Right Thumb do not match with the specimen thumb of Right Thumb of Sri Rajesh Kumar. The reasons of my opinion are given in Annexure No. 2.
(Charge-sheet) c) The photographs on the Call Letter of the person who appeared in the examination does not match with the photographs of the person who is joining the Bank. The reasons of my opinion are given in Annexure No. 3.
Opinion: On very careful examination of the above referred signatures and writing writ ten as 'Rajesh Kumar' as in A-2, I am of the opinion, that the signature D-1 is not made by the same person, who has made the signatures and writing S-1 to S-3 and A-1 to A-3.
Reference of Photographs:
(Charge-sheet) A)= Standard photograph of Sri. Rajesh Kumar Submited at the time of joining of the Bank.
(Charge-sheet) B)= Photograph of the Call Letter of the person who appeared in the examination.
Opinion: On very careful examination of the two above referred photographs marked (Charge-sheet) A and (Charge-sheet) B, I am of the opinion, the photograph (Charge-sheet) A differs with that of (Charge-sheet) B and both the photographs are not of the same person.
The reasons of my opinion are follows:
1. ...................
2. The length of face of photograph (Charge-sheet) A is more than that) of (Charge-sheet) B."
3. The width of the face of photograph (Charge-sheet) A should have been more than that of the face of photograph (Charge-sheet) B in the same proportion, but it is not. The width of the face of photograph (Charge-sheet) A is lesser than of the face of the photograph (Charge-sheet) B as marked by the red line of the photographic enlargement.
4................…
5................…
6................…
It is contended on behalf of the respondents that the principles of natural justice would not apply in the facts of the present case, as the petitioner has obtained appointment on the basis of fraud and misrepresentation and in any case, the petitioner was on probation hence, the petitioner's service could be terminated without assigning any reason.
The contention is not accepted for the simple reason that the bank instead of simply terminating the services on the ground of unsuit ability or poor performance during the probation, conducted an enquiry regarding the conduct of the petitioner for impersonation, fraud and misrepresentation, and after a full fledged enquiry conducted behind his back, evidence was collected by inviting expert opinion to prove the guilt. The motive is not termination simpliciter, the foundation being as to whether the petitioner impersonated in the written examination or notand the bank has acted upon the opinion of an expert taken behind the back of the petitioner without confronting the petitioner, the findings of the handwriting expert.
The contention of learned counsel for the respondent) that) the fact of impersonation is not rebuttable, even after giving opportunity, the petitioner shall not be able to rebut the findings of the expert opinion, cannot be accepted for the simple reason that the expert opinion can always be questioned by the petitioner. It is not a case where the petitioner had obtained appointment by filling forged verification documents or caste certificate, but is a case of impersonation i.e. act of fraud and misrepresentation which is being sought to be proved on evidences to justify the action and suspicion of the Bank. Fraud and misrepresentation is a question of fact, which has to be pleaded and proved after opportunity to the aggrieved party.
A perusal of the impugned order dated 13.9.2011, addressed to the petitioner, the subject is 'cancellation of appointment '. Aft) er giving background of the examination conducted, the petitioner appearing in the examination the impugned order records as follows:
Cancellation of Appointment.
"1. With reference to above, we advise that) the written test for the captioned recruitment exercise was conducted on 8th, 15th and 22nd November, 2009 and you were required to appear in the written test at Bal Vidya Mandir, Station Road, Charbag, Lucknow on 8th November, 2009 at 9:15 A.M. However, you did not appear in the written test at the scheduled date, time and venue but some body else appeared in the above said test impersonating to be yourself.
2. .........................
3. ........................
4. Therefore you suppressed this material fact that you did not appear in the written test held on 8th November, 2009 at 9:15 A.M . On Roll No. 2601001887 allotted to you at Bal Vidya Mandir, Station Road, Charbagh, Lucknow and allowed some one else to appear in the written test in your place, as such your so called selection in Bank is void ab-initio. Accordingly, there is no service contract between you and the Bank and any engagement thereto in pursuance to the referred appointment letter is invalid and void abinitio. However, for the record sake you are informed by this letter that your selection on the referred ground is calcelled in express terms by virtue of this letter which please note. Accordingly, your name has been struck off from the employee's roll/list of the Bank.
5. Please acknowledge receipt of this letter."
The discharge order is not order simpliciter, it in clear terms states that the foundation for termination is that the petitioner "did not appear in the written test and somebody else appeared......impersonating to be yourself" is stigmatic and punitive and reflects upon the character/reputation of a person, it is blemish, imputation, label indicating deviation from a norm.
In the case of State of Punjab Vs. Balbir Singh8. The order of discharge mention the words "unlikely to prove an efficient police officer." Furt her before passing the aforesaid order of discharge it appears that Shri Balbir Singh, who was found to have consumed liquor and misbehaved with a lady constable was medically examined and thereafter discharge order was passed. The appeal, which was filed before the Deputy Inspect or General of Police, was rejected and while rejecting the appeal, he referred to the aforesaid facts and stated that the discharge order was correct . Shri Balbir Singh challenged the order of discharge on the basis of the averments contained therein as well as in the order of the Deputy Inspect or General of Police. The Hon'ble Apex Court upholding the aforesaid order of discharge held as under;-
"In the present case, order of termination cannot be held to be punitive in nature. The misconduction behalf of the respondent was not the inducing fact or for the termination of the respondent. The preliminary enquiry was not done with the object of finding out any misconducton the part) of the respondent, it was done only with a view to determine the suitability of the respondent within the meaning of Punjab Police Rule 12.21. The termination was not founded on the misconduct but the misbehaviour with a lady constable and consumption of liquor in office were considered to determine the suitability of the respondent for the job, in the light of the standards of discipline expected from police personnel."
The term 'stigma' has to be understood in it s plain meaning as something that is detract) ion from the character or reputation of a person. It is blemish, imputation, a mark or label indicating a deviation from a norm The assessment of work and performance and recording of satisfaction of the authority concerned that he is not satisfied with the work and performance regarding fitness of the employee concerned would not make the order stigmatic since itis not a blemish on the character and reputation of the person concerned but it reflects on the capacity and efficiency of the incumbent with respect to the work for which he/she was employed.
It has been held in various judgments rendered by the Supreme Court that reasons assigned in the termination order, at times may not be punitive or stigmatic, the following words/phrases mentioned in the order have been held to be not punitive.
i. "want of application.'
ii. "lack of potential."
iii. "found not dependable."
iv. "under suspension."
v. "work is unsatisfactory."
vi. "unlikely to prove an efficient officer."
(Charge-sheet) Refer: Dipti Prakash Banerjee vs. Saytendra Nath Bose National Centre for Basic Sciences, Calcutta and others (Charge-sheet) 1999) 3 SCC 60, [LQ/SC/1999/144] Paras Nath Pandey vs. Direct or, North Central Zone, Cultural Centre, Nyay Marg, Allahabad (Charge-sheet) 2009) 1 UPlBEC 274) [LQ/AllHC/2008/2100] Considering the facts of the case, in the light) of the legal principles, discussed herein above, I am of the view that the impugned order of termination is nothing but punitive and stigmatic, therefore, cannot be sustained.
In the result, the writ petition is allowed. The impugned order dated 27.8.2011 passed by Regional Manager, State Bank of India is quashed. The petitioner shall be entitled for reinstatement with all consequential benefits but with respect to arrears of salary, he will be paid 50% of the backwages for the period he remained out of employment pursuant to impugned order of termination. It goes without saying that) this judgment shall not prevent to the respondents from proceedings afresh against the petitioner and pass a fresh order in accordance with law."
23. In the facts of the present case, despite allegation made in the notice dated 5.8.2015 about thumb impression, signatures and handwriting having not tallied, the respondents have confined their conclusion to the opinion of the handwriting expert. Such opinion cannot be construed as being conclusive.
24. In the present case not only the petitioners have been denied appointment but they are also debarred from appearing in any examination conducted by the Commission for three years. Such order of Commission is clearly stigmatic in nature. The order under challenge carries civil consequences also. Such order cannot be sustained merely on t) he strength of handwriting report, nature of which remains that of an opinion, and cannot be construed as conclusive.
25. The report of CFSL based upon handwriting expert's opinion, moreover, has not been furnished to the petitioners. Petitioners consequently had no opportunity to controvert it . Attention of the Court has been invited to pages 252, 253, 273, 274, 333 and 334, which contain identical expressions. Report at pages 513, 594 and 554 also contain identical language. In case an opportunity was afforded to the petitioners then all such materials could have been highlighted.
26. The respondents were expected to confront the petitioners with material relied upon against them. A show cause containing such materials was required to have been issued, particularly when petitioners were being debarred from appearing in any other exam conducted by Commission for three years. The notice dated 5.8.2015 cannot be construed as a show cause notice. It only called upon the petitioners to give their specimen signatures, handwriting and thumb impression in view of Commission's opinion that they do not match. After the CFSL report was received neither the petitioners were put to any notice, nor the content of report was made known to them.
27. The opinion of handwriting expert was required to have been viewed with other materials available on record. Admittedly the petitioners had carried their identity cards, which had been verified at) all stages of examination by the Commission and their officers. There cannotbe a presumption that) all the staffs/employees of Commission had failed to correctly identified the petitioner despite existence of identity card. The presumption that petitioners had identified themselves with reference to specified identity cards could not be lightly brushed aside. The fact that respondents had admitted thumb impressions and specimen thumb impressions with them, which have not been tallied also, is a fact or to be kept in mind. There apparently was no reason for the respondents not to have verified the identity of petitioners with reference to their thumb impression, which is an evidence superior to the report of handwriting expert. The nature of expert's opinion otherwise not being conclusive, could not solely be relied upon to cancel petitioners' provisional selection, ignoring other materials, particularly when the order itself was stigmatic.
27. Further, he has relied upon the Division Bench judgement of this Court in Writ-A No. 21096 of 2018 (Vijay pal and 22 other vs. Union of India and 3 others). Paragraph 9, 22, 23, 25, 30, 33 and 34, which reads as under :-
"9. The notice alleged that the petitioners had resorted to impersonation, further, it was alleged that there was mismatch in the handwriting, and/or, thumb impression of the candidates. In other words, allegation against the petitioners was that they have resorted, by securing the services of someone else, in the written test on their behalf. The allegation levelled in the two memorandums of the same date is extracted:
“I. As confirmed by the Government Examiner of Questioned Documents, Hand writing on the Application Form and that on answer sheet (Charge-sheet) OMR)/verification sheets are of different person (Charge-sheets. It has been established that the candidate did not appear himself in the written examination or PET examination and rather somebody else appeared in the same on his behalf, which is a case of impersonation, a malpractice and an offence.
II. As you are aware bio-metrics attendance were obtained during each phase of examination. It is to bring into your notice that your thumb impression during document verification did not match with written and PET examination. It means someone else had appeared in written and PET examination impersonating your candidature.”
22. The question that requires consideration is as to whether the respondents were justified on the available materials on record to hold petitioners guilty of impersonation, and/or, mismatch of handwriting/thumb impression on various documents.
23. In Rajesh Kumar vs. Union of India and others1, this Court observed that handwriting expert opinion is at best an opinion, which is not conclusive proof of mismatch of handwriting or impersonation. Expert opinion has been considered to be of very weak nature, which requires corroboration from other material facts pertaining to the allegation.
24. . . . . . . . . . . .
25. The decision of the respondent is based on the expert opinion alone to establish guilt of impersonation, and/or, mismatch of handwriting/thumb impression without affording opportunity or confronting the petitioners with the material/opinion. Had it been so, the petitioners in their defence could also have obtained an opinion of the expert to confront the Railways. The impugned order of cancellation of the candidature of the petitioners could nothave been sustained on the opinion of handwriting expert.
26. . . . . . . . . . . .
27. . . . . . . . . . . .
28. . . . . . . . . . . .
29. . . . . . . . . . .
30. The opinion of the expert was required to have been viewed and considered with ot her materials available on record. The learned Tribunal has discarded the theory of impersonation setup by the respondent-Railways, then in that event, mismatch of handwriting/thumb impression of the petitioners becomes unsustainable, unless supported by any other material or evidence that petitioners have not appeared in the examination or have not filled the application form in their handwriting.
31. . . . . . . . . . .
32. . . . . . . . . . .
33. In the circumstances, it cannot be said in absence of any other material available with the Railways, that it is a case of mismatch in handwriting/thumb impression. The inference of the Railways is based on an opinion without being supported by any other material, i.e., the petitioners had not appeared at different stages of the selection process.
34. In service jurisprudence, though Evidence Act is not applicable, the charge is not required to be proved beyond reasonable doubt , but on the principle of preponderance of probability, based on some material evidence against the petitioners. It is not a case of disciplinary proceedings, neither, itis a case setup by the Railways, that there was large scale irregularities in the examination process, only few candidates have been picked-up and their selections cancelled merely on an opinion obtained behind the back of the petitioners without confronting the petitioners with the incriminating material."
28. Learned counsel for the petitioner further submits that in the above said matters, the issue is identical to that of issue involved in the present writ petition.
29. Even in the above said matters, the respondents have not been able to establish the allegations of impersonation against the petitioner and based on the opinion of an expert, punishment order was passed against the petitioner which was set aside only on the ground that opinion of the handwriting expert was required to have been viewed and considered along with other materials available on record. Unless it is supported by any other material or evidence, that the petitioner has not been appeared in the examination, only based on the opinion of expert, he cannot be dismissed from service as reasonable opportunity has to be given to the delinquent and accordingly, the impugned orders are contrary to procedure.
30. Per contra, learned counsel appearing on behalf of the respondents has vehemently opposed the writ petition and submitted that the petitioner cannot take such plea in the present petition as the respondents have implemented the order passed by the Hon’ble Court in Writ-A No. 48511 of 2016, wherein liberty has been granted to the respondents to proceed against the petitioner afresh after giving him an opportunity of examination and cross-examination of Sri R. Krishna during the inquiry and lead whatever evidence he may want to contradict the report of handwriting expert Sri R.Krishna. The said directions have became final and as per orders passed by this Court, respondents have given several opportunities to the petitioner to cross-examine the said R. Krishna.
31. Despite giving opportunity on several occasion i.e. 13.01.2020, 27.07.2020 and 27.01.2021, petitioner has not chosen to cross-examine Sri R. Krishna, left with no option the inquiry Officer has submitted his report. Hence, the inquiry report submitted by the inquiry officer on 27.01.2021 was in accordance with directions issued by this court in WritA No. 48511 of 2016. In the said circumstances, the petitioner cannot take contrary stand and raised objection with regard to the handwriting expert of Sri R. Krishna. The said ground is not available to the petitioner in view of the direction issued by this Court in the above said writ petition.
32. Further, the respondents have considered the entire documents while passing the final orders and as per the observations made in the final order, it clearly discloses that before passing the orders, the respondents have verified the entire records which includes both records pertaining to the examination centre as well as interview Board. He further submits that the Appellate Authority has considered the appeal filed by the petitioner and has taken the each and every ground for consideration and after verifying the documents, the Appellate Authority has also came to the conclusion that there are no ground raised by the petitioner, hence the same has been dismissed.
33. In view of the above, there is no ground to interfere in this matter as authorities have followed procedure contemplated under the procedure and also ample opportunity has been given to the petitioner before passing the orders, hence the writ petition may be dismissed.
34. Considering the submissions made by both the counsels and also perusal of the records, though liberty was granted to the respondents in Writ-A No. 48511 of 2016 vide order dated 24.04.2018 but the respondents could not follow observations made by this Court in the said judgement where this Court had specifically observed that whether there was any photo of missing or not, was a matter which could have been examined by the Inquiry Officer at least during the course of inquiry.
35. On perusal of the inquiry report submitted by the Inquiry Officer on 27.01.2021, it appears that this aspect was not at all considered. Further, it is observed that though it may not have been possible in the invisilative / examination centre itself but nothing of its kind was done and inquiry report was based entirely upon the report of R. Krishna, the handwriting expert who was not even a registered handwriting expert. These, observations were also not considered by the Inquiry Officer while conducting the re-inquiry. Further, it is observed that the Disciplinary Authority and the Appellate Authority have also not considered the various aspects of the matter which indicates that Disciplinary Authority and Appellate Authority also required to consider the other aspects not only the inquiry report and the report submitted by the expert while imposing penalty but in the instant case, perusal of the impugned order dated 29.11.2021 clearly shows that the Disciplinary Authority has not at all considered any other relevant material while imposing the penalty except giving the opportunity to the petitioner to cross-examine the R. Krishna who is so-called handwriting expert. Neither Disciplinary Authority nor Appellate Authority has considered the other aspects while imposing the punishment vide order dated 29.11.2021.
36. Further, as observed by the Division Bench of this Court in Vijay Pal and 22 others v. Union of India and 3 others (supra) that opinion of the expert was required to have been viewed and considered along with the other materials available on record. In the event of impersonation mismatch of handwriting / thumb impression of the petitioner became unsustainable unless supported by any other material or evidence that the petitioner had not appear in the examination or had not filled the application form.
37. Even in the instant case, the respondents have failed to corroborate the expert report along with the other material available on record and it clearly discloses that the respondents have not even chosen to verify or to substantiate that the petitioner had not participated in the examination centre except having an expert opinion that too from non-registered expert.
38. In view of the said circumstances, the respondents have passed the impugned orders solely depending on the report submitted by one R. Krishna, who is handwriting expert, without verifying the other material and without establishing that the petitioner has not appeared in the examination.
39. In view of the same, the impugned orders dated 29.11.2021 and also the Appellate Authority order dated 27.01.2022 are set aside, remanding the matter to afresh inquiry by sending all the relevant documents to the forensic laboratory and also conducting a detailed inquiry by calling all the relevant records and examining the concerned persons and take a proper action, accordingly.
40. In the result, the writ petition is disposed of.
