- (1.) B. S. Chauhan, J. The instant writ petition has been filed challenging the impugned order dated 3-6-96 by which the services of the petitioner have been terminated, which had been given to the petitioner on compassionate ground. The services of the petitioner have been ter minated on the finding that the petitioner had contained the employment by mis representation and he did not possess the qualification of intermediate which was necessary for the Class III Post.
(2.) THE factual gamut of the case reveals that the petitioner's father died on 13-7-91 in harness when he was working as a Class- III employee with the respondent. After the death of the father of the petitioner, petitioner's elder brother was given employment on compassionate ground under the Dying in Harness Rules, 1974, but under mysterious circumstances he disappeared and on the same ground the petitioner filed on application, on 7-5-1992, but he was not given employment. As the case of the petitioner was not con sidered, the petitioner approached the Lucknow Bench of this Court and the Lucknow Bench issued direction on 21st September, 1993 to consider the case of the petitioner on compassionate ground, thought the direction issued by the High Court seems to be in flagrant violation of law and observations made by the Supreme Court in State of Rajasthan v. Umrao Singh, 1994 (6) SCC 650, wherein it has been held that no person is entitled to claim the benefit under dying in harness rules more than once. Thus, I am of the considered opinion that once the brother of the petitioner had taken the benefit of the dying harness rules and obtained the employment on compassionate ground, it was not open for the petitioner to apply of the same. However, in pursuance of the order of the Lucknow Bench of the High Court, the case of the petitioner was con sidered and he was offered employment as Class-Ill employee on 25th September, 1993. Subsequently, it came to the notice of the employer that there had been some misrepresentation, the respondent removed the petitioner vide order dated 5th September, 1995. Being aggrieved and dis-satisfied the petitioner approached this Court by filing writ petition No. 35506 of 1995 which is still pending for final adjudica tion. However, this Court issued direction dated 7th December, 1995, not to give effect to the termination order dated 5-9-95. However, the respondents were given liberty to proceed further and decide the case of the petitioner after giving him op portunity of hearing. Thus, in pursuance of the order of this Court dated 7-12-95, the respondents issued a charge- sheet on 29th January, 1996 wherein specific case of the employer had been that the petitioner did not possess the requisite qualification of intermediate and the marks-sheet filed by him was forged and fabricated document and thus the petitioner was given an opportunity of defence. The petitioner filed reply on 12-2-96 and the enquiry officer came to the conclusion that the marks sheet filed by the petitioner was forged document and petitioner had obtained the employment by mis-representation and he proposed the punishment of removal of the petitioner from service and thus the petitioner was served with a show-cause notice on the proposed punishment vide notice dated 11-4-96 to which the petitioner replied on 12-4-96 and after considering the reply of the petitioner, he was removed by impugned order dated 3-6-96. Hence this petition.
(3.) THE basic issue involved in this case is whether the petitioner possess the req uisite qualification on the date he applied for the employment and whether the marks-sheet filed by him is a genuine or a forged document. THE best evidence which the petitioner should have produced in his defence was the certificate issued by the High School and Intermediate Board, if he had really passed the intermediate ex amination and as the petitioner failed to produce the said certificate, inference is to be drawn against the petitioner under Sec tion 114 vide Illustration (h) of the Indian Evidence Act. So far as the question of genuinity of the marks sheet is concerned, there is a finding given by the enquiry officer after examining the principal of the college from which the petitioner alleged that the marks sheet had been issued and member of the U. P. High School and Inter mediate Education Board, that is a forged document. While exercising the power in the writ jurisdiction this Court cannot sit in appeal against the finding of fact recorded by the enquiry officer.;