# Vijay Kumar Yadav v. State of U.P. & Ors

- **Citation:** (2015) 3 ILRA 1033
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-09-28
- **Case number:** Special Appeal No. 21 of 2009
- **Bench:** Krishna Murari, Amar Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-kumar-yadav-v-state-of-u-p-ors-43338
- **Pages:** 5

## Headnote

Constitution
of
India-Art.-226-Service
law-dismissed on allegation-appointed
as class 4th employee on compassionate
ground-as per date of birth in school
certificate-minor below than 18 yearsSingle Judge ignored the fact-when not
required to produce age proof but asked
to produce medical certificate-can not be
held guilty for suppression of material
facts-appeal allowed.
Held: Para-11
But in the present case, the appellant
had not given any false information or
suppressed any relevant or material
information. This is not a case where a
wrong date was given to have a longer
period of service and thereafter an
attempt to justify it. The date of birth
was recorded in the service book on the
basis of age determined by CMO on the
basis of medical examination.
Case Law discussed:
AIR 2012 SC 1608; (1991) 1 SCC 588; (1993)
4 SCC 727; (2010) 11 SCC 702.

## Text

3 All] Vijay Kumar Yadav Vs. State of U.P. & Ors.
1033
raised on behalf of the petitioner. The
petition is accordingly dismissed.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.09.2015
BEFORE
THE HON'BLE KRISHNA MURARI, J.
THE HON'BLE AMAR SINGH CHAUHAN, J.
Special Appeal No. 21 of 2009
Vijay Kumar Yadav
 ...Appellant
Versus
State of U.P. & Ors.
...Opp. Parties
Counsel for the Appellant:
Sri Akhilanand Mishra, Sri A.K. Singh, Sri
Manish Kumar Nigam, Sri Vijay Kumar
Yadav (I/P)
Counsel for the Opp. Parties:
C.S.C.
Constitution
of
India-Art.-226-Service
law-dismissed on allegation-appointed
as class 4th employee on compassionate
ground-as per date of birth in school
certificate-minor below than 18 yearsSingle Judge ignored the fact-when not
required to produce age proof but asked
to produce medical certificate-can not be
held guilty for suppression of material
facts-appeal allowed.
Held: Para-11
But in the present case, the appellant
had not given any false information or
suppressed any relevant or material
information. This is not a case where a
wrong date was given to have a longer
period of service and thereafter an
attempt to justify it. The date of birth
was recorded in the service book on the
basis of age determined by CMO on the
basis of medical examination.
Case Law discussed:
AIR 2012 SC 1608; (1991) 1 SCC 588; (1993)
4 SCC 727; (2010) 11 SCC 702.
(Delivered by Hon'ble Amar Singh
Chauhan, J.)
1. Heard Sri Vijay Kumar Yadav,
appellant in person, learned Standing
Counsel for the State respondents and
perused the material on record.
2.
This intra court appeal is directed
against the order dated 24.11.2008, whereby
the learned Single Judge dismissed the Civil
Misc. Writ Petition No. 23090 of 2008,
(Vijay Kumar Yadav vs. State of U.P. &
others) on the ground that the petitioner was
not major and he was aged about 14 years at
the time of appointment. Therefore, prima
facie, his appointment was illegal on the post
of
Runner
in
Tubewell
Construction
Division, Gonda.
3. Brief facts of this case are that the
petitioner-appellant was appointed on the
post of Runner (DHAWAK) in Tubewell
Construction Division, Gonda under the
Dying in Harness Rules, 1974. Thereafter
the petitioner-appellant was transferred to
Tubewell Division-I, Gorakhpur where he
joined on 10.9.1992. In this regard, a
confirmation letter dated 29.1.1999 of
respondent no. 5 is annexed at page 33 as
Annexure-1 to the writ petition. At the
time of appointment, the petitionerappellant was asked to prove his date of
birth. The Chief Medical Officer, Gonda
has determined the age of the appellant as
18 years and on the basis of which the
date of birth of the appellant was recorded
as 11.12.1969 in his service book. On
27.10.2006, a complaint was made by Sri
Raj Kumar Yadav to the Executive
Engineer Tubewell Division-I, Gorakhpur
that on the basis of forged medical
certificate, the appellant namely Vijay
Kumar Yadav has obtained appointment.
On the basis of the complaint, a
1034
 INDIAN LAW REPORTS ALLAHABAD SERIES
Committee
was
constituted
by
the
Executive Engineer, Tubewell Division-I,
Gorakhpur asking for report regarding the
complaint and verification of age of the
petitioner. The Committee submitted its
report on 28.4.2007 mentioning that the
certificate which was issued by the
Principal
of
the
institution
namely
Cooperative
Inter
College,
Pipraich,
Gorakhpur dated 28.2.2003, the date of
birth of the petitioner was 1.7.1974.
Therefore, on the date of the appointment,
the appellant was only 14 years of age and
on the basis of the forged medical
certificate, he has obtained appointment.
It is recommended by the Committee that
major punishment be awarded to the
petitioner. On these facts, the appellant
was given charge sheet on 31.10.2007,
which is Annexure-2 to the writ petition.
Thereafter, the appellant submitted his
reply of the charge sheet on 3.11.2007,
which is Annexure-3 to the writ petition.
The reply submitted by the petitionerappellant reveals that allegation made in
the charge sheet about the certificate
issued by the Cooperative Inter College
and the date of birth mentioned in the
College record has not been denied.
Having regard to the reply of the charge
sheet filed by the petitioner-appellant and
the enquiry report, the appellant has been
removed from service by the impugned
order
dated
24.11.2008
and
the
appointment was declared as illegal.
4. Submission of the appellant is that
Raj Kumar Yadav was inimical to the
petitioner and manipulated the record of the
school and filed a character certificate which
was believed by the Committee whereas
Medical Board has given the age of 18 years.
He was not aware of his date of birth and the
finding given by the Chief Medical Officer
should be believed. At the time of the
appointment, petitioner-appellant was asked
to get his age determined by the CMO. His
age was determined as 18 years and,
accordingly, CMO issued the age certificate
on the basis of which date of birth was
recorded as 11.12.1969 in service book. He
had studied in Cooperative Inter College,
Pipraich, Gorakhpur up to the 9th class and
failed in Class IX in the year 1987 since he
had not appeared at all or passed High
School Examination. Order dated 23.4.2008
shows that it was passed on the basis of the
inquiry report dated 22.1.2008, according to
which, the appellant appeared in High
School Examination without permission of
the Department to justify his date of birth
recorded in his service book. Therefore, the
report dated 22.1.2008 was submitted
without holding enquiry proceeding and
appellant was not called upon to appear
before the Enquiry Officer. The inquiry
report was also not supplied to him. Order of
removal from service has been passed
without providing opportunity of hearing
inasmuch as he was not asked to participate
in the inquiry proceeding. Enquiry report was
submitted behind his back without holding
the inquiry. The order of removal is violative
of Article 311 of the Constitution and also
violative to principle of natural justice.
5. Per contrary learned Standing
Counsel submitted that the petitioner has
obtained the compassionate appointment
after the death of his father namely Ram
Sunder Yadav at the age of 14 years. As
such, at the time of appointment, he was
minor and has obtained appointment on
the basis of the forged certificate alleged
to be issued by CMO, Gonda. The date of
birth as entered in service book on the
basis of certificate issued by CMO, Gonda, is
11.12.1969 whereas, as per complaint, which
was sent by Raj Kumar Yadav accompanied
by the character certificate issued by the
3 All] Vijay Kumar Yadav Vs. State of U.P. & Ors.
1035
Principal,
Cooperative
Inter
College,
Pipraich, Gorakhpur, the age of the appellant
is 1.7.1974. The
Enquiry Committee
submitted its report holding that the age of
the petitioner was 14 years. He has concealed
his age at the time of initial appointment in
the Department and recommended for major
punishment.
6.
In the case, in hand, petitionerappellant was appointed on the post of
Runner (DHAWAK) which falls under
Class-IV
category
in
the
Tubewell
Construction Division, Gonda on 24.3.1988
on compassionate ground under the Dying
in Harness Rules, 1974. The appellant was
asked to get his age determined by the Chief
Medical Officer. His date of birth, on the
basis of the service book and the certificate
issued by CMO Gonda, is 11.12.1969. The
complaint was received accompanied by
character certificate issued by the Principal,
Cooperative
Inter
College,
Pipraich,
Gorakhpur in which date of birth of
petitioner-appellant was shown as 1.7.1974.
On the basis of the complaint, an enquiry
was initiated. The Enquiry Committee,
instead of relying the service book entry in
which age of the petitioner on the basis of
the certificate issued by the CMO, Gonda
was entered as 11.12.1969, had relied on the
letter of the Principal/Character Certificate
whereas in the eye of law character
certificate is not admissible as proof of age.
The medical evidence is based on scientific
investigation such as X-ray, ossification test
which will have to be given due weight and
precedence over the shaky evidence based
on school administration record which give
rise to hypothesis and speculation about the
age.
7. It is well known fact that parents
have a tendency to show lesser age of the
child for High School Examination. The
Hon'ble Supreme Court in Om Prakash
vs. State of Rajasthan and another, AIR
2012 SC 1608 held that in such a situation
when the school record itself is not free
from ambiguity and conclusively prove
the minority of the accused the opinion of
the medical experts based on X-ray and
ossification test will have to be given
precedence over the shaky evidence based
on school records.
8.
The appellant was not asked to
supply proof of age from the school where he
had studied but he was asked to give medical
certificate of CMO in proof of age. In these
circumstances, the medical certificate issued
by the CMO, based on ossification test or Xray cannot be belied by saying that it is fake
and
forged.
The
Enquiry
Committee
submitted
his
report
without
giving
opportunity of hearing to the appellant and
no show cause notice was given nor copy of
the enquiry report was supplied to the
appellant. Under Rule 9(4) of the U.P.
Government Servant (Discipline and Appeal)
Rules, 1999 (hereinafter referred to as the
"rules of 1999") which governs the service
condition of the appellant, it was incumbent
upon the disciplinary authority to supply a
copy of the enquiry report to the charged
Government servant giving him opportunity
to submit his representation if he so desires,
within a reasonable specified time and
thereafter proceed to pass a reasoned order in
respect of the penalty. Relevant Rule 9(4)
reads as under:
"9. Action on Inquiry Report.--(1)
The Disciplinary Authority may, for
reasons to be recorded in writing, remit
the case for re-inquiry to the same or any
other Inquiry Officer under intimation to
the charged Government servant. The
Inquiry Officer shall thereupon proceed
to hold the inquiry from such stage as
1036
 INDIAN LAW REPORTS ALLAHABAD SERIES
directed by the Disciplinary Authority,
according to the provisions of Rule 7.
(2)The Disciplinary Authority shall,
if it disagrees with the findings of the
Inquiry Officer on any charge, record its
own finding thereon for reasons to be
recorded.
(3)In case the charges are not
proved, the charged Government servant
shall be exonerated the Disciplinary
Authority of the charges and informed
him accordingly.
(4)If the Disciplinary Authority,
having regard to its findings on all or any
of charges is of the opinion that any
penalty specified in Rule 3 should be
imposed on the charged Government
servant, he shall give a copy of the
inquiry report and his findings recorded
under sub-rule (2) to the charged
Government servant and require him to
submit his representation if he so desires,
within a reasonable specified time. The
Disciplinary
Authority
shall,
having
regard to all the relevant records relating
to the inquiry and representation of the
charged Government servant, if any, and
subject to the provisions of Rule 16 of
these rules, pass a reasoned order
imposing on or more penalties mentioned
in Rule 3 of these rules and communicate
the same to the charged Government
servant."
9. The Apex Court in the case of
Union of India Vs. Mohd. Ramzan Khan
(1991) 1 SCC 588 and in the case of
Managing Director, ECIL, Hyderabad and
others Vs. B. Karunakar and others (1993)
4 SCC 727 has held that where the enquiry
officer is not the disciplinary authority, the
delinquent employee has a right to receive a
copy of the enquiry officer's report in Court
before the disciplinary authority arrives at its
conclusions with regard to guilt or innocence
of the employee with regard to the charges
levelled against him. That right is a part of
the employee's right to defend himself
against the charges levelled against him. A
denial of the enquiry officer's report before
the disciplinary authority takes its decision
on the charges, is a denial of reasonable
opportunity to the employee to prove his
innocence and is a breach of principles of
natural justice. In the case in hand,
admittedly non supply of the enquiry report
to the petitioner-appellant giving him an
opportunity to make a representation is not
only violative of Section 9(4) of the rules,
1999 but also in violation of the principles of
natural justice in view of the law laid down
by the Hon'ble Apex Court.
10.
Moreover, Rule 8 of U.P.
Government (Discipline and Appeal), Rules
1999 provides that the Enquiry Officer shall
not make any recommendation about the
penalty whereas the recommendation has
been made by the Enquiry Officer for major
punishment cannot be said to be fair rather
unjustified and unwarranted and is against
the provisions of Rule 8 of Rules of 1999.
11. The Hon'ble Apex Court in Manoj
Kumar vs. Government of NCT of Delhi and
others, (2010) 11 SCC 702, observed that if
any candidate furnishes false or incomplete
information or withholds or conceals any
material information in his application, he
will be debarred from securing employment.
Even if such an applicant is already
appointed, his services are liable to be
terminated for furnishing false information.
But in the present case, the appellant had not
given any false information or suppressed
any relevant or material information. This is
not a case where a wrong date was given to
have a longer period of service and thereafter
an attempt to justify it. The date of birth was
recorded in the service book on the basis of
3 All]
 Satyawan Vs. Krishna Bahadur Upadhyay
1037
age determined by CMO on the basis of
medical examination.
12.
Thus, in view of the aforesaid
discussion, the law and settled legal
proposition, we are of the view that the
order dated 24.11.2008, passed by learned
Single Judge is not sustainable in nature
and the inquiry report is liable to be set
aside.
13. Hence, the order dated 24.11.2008
is quashed and the enquiry report is hereby
set aside. The special appeal succeeds and is
allowed.
14. Respondents no. 2 to 5 are
directed to hold an inquiry afresh in the
light of the aforesaid discussion according
to law. There shall be no order as to cost.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.09.2015
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.
Contempt Appeal Defective No. 26 of 2003
Satyawan
...Appellant
Versus
Krishna BahadurUpadhyay ..Respondents
Counsel for the Appellant:
Sri K.P. Shukla
Counsel for the Respondents:
A.G.A.
Contempt of Court Act 1971-Section 12Civil contempt punishment of Rs. 5000/-
fine with direction of deduction from salaryexcept fine of Rs. 2000/- and 6 month
maximum of punishment-realization of
damage without finding of guilt-heldunsustainable.
Held: Para-8
In the wake of the aforesaid facts, we do
not find any justification for imposition
of damages to be deducted from the
salary of the appellant without holding
the appellant to be guilty of having
committed the contempt. A prima facie
opinion is not an order of conviction on
satisfaction that the charge was proved.
(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)
1. This contempt appeal has come
up after 12 years of its filing.
2. The appellant was the then
Regional Joint Director of Education, who
was directed to decide a rival dispute of a
Committee of Management vide judgment
of this Court dated 10th April, 2003.
3.
The officer appears to have
completed the hearing on 25th June, 2003
but orders were not delivered. When
Contempt Application No. 2970 of 2003
was filed, upon issuance of notices, the
order was passed by the officer on 4th
November, 2003. When the contempt
application came up for final hearing, a
learned Single Judge after having noticed
the above facts, observed that prima facie a
contempt has been committed by not strictly
obeying with the order dated 10th April,
2003. However, the court instead of
punishing the appellant under section 12 of
the 1971 Act disposed of the contempt
petition by directing that he will deposit Rs.
5,000/- as damages, and the Director of
Education was further directed to deduct the
aforesaid amount from the salary of the
appellant.
4. The said judgment of the learned
Single Judge dated 13.11.2003 is under
appeal before us.