S. Ravindra Bhat, J.
1. The petitioner in these writ proceedings has challenged an order dated 10.3.2003 issued by the respondent (his employer, Super Bazar), dismissing him from the services.
2. The petitioner was employed by the Super Bazar Co-operative Store Limited; he had applied for a vacancy in the post of 'Counter Salesman' pursuant to an advertisement, on 2.1.1975. While applying for the post, he had relied upon the certificate issued by Drugs Controller, Delhi Administration being certificate No. 8/69-DS-9774, dated 31.12.1969. He claimed working experience of 8 years. The Super Bazar had issued a letter of offer which was accepted by him.
3. The petitioner was issued with a certificate dated 3.5.1978 by the Delhi Pharmacy Council as per Form-F under Rule 65(1) read with Section 32B of the Pharmacy Act, 1948 (hereafter 'the Act') as amended, in 1976.
4. On 3.3.2000, a charge sheet was issued to the petitioner alleging that he had failed to submit his basic educational qualification certificate and that the Delhi Pharmacy Council by its letter dated 28.4.1999 informed Super Bazar that under Section 32 of the Pharmacy Act, no person was entitled to be registered as a Pharmacist in the register unless he had passed a metriculation examination or an examination equivalent to it. It was alleged that the petitioner had misrepresented, and manipulated documents to secure a certificate to which he was not entitled, which was issued by the Delhi Pharmacy Council.
5. The petitioner had in the course of departmental enquiry, contended that he was entitled to the certificate under Section 32B of the amended Act since he was possessing a certificate issued by the office of the Delhi Drugs Controller dated 31.12.1969. In terms of Section 32-B(b), those holding certificates under the Drugs and Cosmetics Act were entitled to be treated qualified persons.
6. The Super Bazar instituted an inquiry in which the petitioner participated. By report dated 24.4.2002, the inquiry officer concluded that since the department had failed to produce Recruitment Rules for the post of Stock Clerk-cum-qualified Salesman, it was not possible to hold that the petitioner had made false representations to the Super Bazar; The relevant portion of the said finding reads as follows:
In view of the fact that the prosecution has failed to produce the recruitment rules for this post, it is difficult to say about the educational qualification of that post. Also it is difficult to accept that the educational qualification for the post on which CSE was initially recruited was 'Matriculation'. Needless to mention that when the appointment of CSE was approved by the then Manager Drug Department, he must have kept this important aspect in view. Further, as CSE is seen to have no where mentioned anything about his educational qualification while securing employment in Super Bazar nor the prosecution has produced any document in which he ever claimed to be a metriculate, it is difficult to accept that CSE secured appointment in the Super Bazar by making any misrepresentation or on the basis of any bogus certificate as found above. Regarding the promotion of CSE to the post of Pharmasists, it is observed from Ex. M-3 that he was given the higher grade along with other Qualified Persons-cum-Stock Clerks by the Super Bazar on 14-02-79. Nothing is brought on record to show that educational qualification for the higher post was metriculation and CSE had made any representation claiming himself to be a metriculate. In fact while promoting an employee, it is for the employer to see whether the employee fulfills all the requirements of the post. Thus CSE can not be blamed if the Super Bazar promoted him on the higher scale. The super Bazar must have promoted CSE on the basis of his experience etc. along with some other persons. In view of it, it is difficult to draw any indifferent inference against CSE and part (c) of the charge is also held as Not Proved.
7. The first three parts of the charge sheet were held not to be proved, in paras 11 and 12 of the inquiry report. As far as the last portion of the charge was concerned, the inquiry officer had observed in para 17 that the statement of imputation/charges did not indicate the date of the letter by which the petitioner was asked to submit the document namely the metriculation certificate. It was also noticed that the document was not included in the list of management documents. However, inspire of these the inquiry officer proceeded to hold that the petitioner was negligent in not following the directions of his employer as far as submission of document was concerned. He thus, concluded that main charges A, B and C were held not proved but that part D of the charges had been proved.
8. By the impugned order dated 10.3.2003, the petitioner was dismissed from services.
9. It is contended that the charges were initiated on a completely erroneous basis leading to hardship and harassment of the petitioner. It was submitted on behalf of the petitioner that as he had experience as a counter Salesman, being a qualified person in terms of the Drugs and Cosmetics Act, 1940, he was entitled to registration under Section 32-B of the Pharmacy Act. The main charge was that the petitioner did not hold the necessary qualification.
10. The Counsel for petitioner also contended that the inter se correspondence between Super Bazar and the Delhi Pharmacy Council was of little consequence since the certificate issued by the Pharmacy Council on 3.5.1978 is valid and was never withdrawn or cancelled. It was contended that the charge of not being a metriculate had to be established with reference to an essential condition; the mere allegation of the Delhi Pharmacy Council about the petitioner's ineligibility was of no avail, because the certificate continued to be valid. Learned counsel contended that if indeed the Pharmacy Council was of the opinion that the petitioner, for any reason was ineligible, it had ample power under the Pharmacy Act to take action. Not having done so, its letter could not be made the basis of disciplinary action particularly when the respondent employer did not establish that the petitioner was ineligible as per its recruitment rules, to discharge the duties of Stock Clerk cum Salesman.
11. It was averred on behalf of the respondent and contended on its behalf by Ms. Archna Dogra that the Super Bazar had been wound up and that the petitioner never disclosed the certificate to the respondent which led to the issuance of the certificate by the Delhi Pharmacy Council. It was contended that the petitioner never established that he held the qualification of metriculation which was necessary to be a registered person in terms of Section 32-B.
12. Learned counsel also contended that the wrong committed by the petitioner in obtaining a certificate though false pretences cannot be taken advantage of by him. She justified the findings of the inquiry officer as well as the order of dismissal.
13. The short controversy here is whether the petitioner had committed misconduct which warranted an order of dismissal. It was not disputed nor could it be disputed that the inquiry officer returned findings of not guilty in respect of most of the charges, which included the charge of having obtained employment wrongfully. He concluded that the respondent had not been able to establish, with reference to its recruitment rules, that the petitioner was ineligible. The sole question which arises for determination is whether the petitioner's conduct, judged to be wrongful by Delhi Pharmacy Council in its letter dated 28.4.1999 (that the petitioner was ineligible) can be the rationale for disciplinary action.
14. Section 32-B of the Pharmacy Act, 1948 was introduced by an amendment which came into force on 1.9.1976. As per provisions of sub Section 32-B(2) the entire provision namely Section 32-B was to be inforce for two years. The material part of Section 32-B reads as follows :
32B. Special provisions for registration of displaced persons, repatriates and other persons. - (1) Notwithstanding anything contained in Section 32 or Section 32A, a State Council may permit to be entered on the register -
(a) the names of persons who possess the qualifications specified in clause (a) or clause (c) of Section 31 and who were eligible for registration between the closing of the First Register and the date when the Education Regulations came into effect.
(b) the names of persons approved as qualified persons before the 31st December, 1969 for compounding or dispensing of medicines under the drugs and Cosmetics Act, 1940 (23 of 1940) and the rules made there under;
(c) the names of displaced persons or repatriates who were carrying on business or profession of pharmacy as their principal means of livelihood in any country outside India for a total period of not less than five years from a date prior to the date of application for registration.
Explanation ' In this sub-section,-
(i) displaced person means any person who, on account of civil disturbances or the fear of such disturbances in any area now forming part of Bangla Desh, has, after the 14th day of April, 1957 but before the 25th day of March, 1971, left, or has been displaced from, his place of residence in such area and who has since then been residing in India;
(ii) repatriate means any person of Indian origin who, on account of civil disturbances or the fear of such disturbances in any area now forming part of Burma, Sri Lanka or Uganda, or any other country has after the 14th day of April 1957, left or has been displaced from, his place of residence in such area and who has since then been residing in India.
(2) the provisions of clauses (a) and (b) of Sub-section (1) shall remain in operation for a period of two years from the commencement of the Pharmacy (Amendment) Act, 1976.
15. As is evident, but for the introduction of Section 32-B, only those entitled to be registered as per Section 31 to 32-A could be registered as Pharmacists, Section 32-B was thereforee conceived of as a special measure to enable a few category of persons entitled to be registered. One such category were those falling within the description of qualified persons under the Drugs and Cosmetics Rules, framed under the Drugs and Cosmetics Act 1940. The relevant provisions namely Rule 65(5)(15)(c) reads as follows:
(c) The description Pharmacy, Pharmacist, Dispensing Chemist or Pharmaceutical Chemist shall be displayed by such licensees who employ the services of a Qualified person and maintain a Pharmacy for compounding against prescriptions:
+Explanation: - For the purpose of this rule:
(i) A substance specified in Schedule E means a substance specified in column 1 of Schedule E and its preparation excluding preparations exempted under columns 2 or 3 thereof;
(ii) 'Qualified person' Means a person who
(a) holds a diploma or degree in pharmacy or pharmaceutical chemistry of an institute approved by the Licensing Authority, or
(b) is a registered pharmacist as defined in the Pharmacy Act, 1948.
Provided that in those States (including Union territories) where the first register of Pharmacist under Section 29 of the said Act has not been prepared, a person possessing qualifications to have his name entered in that register shall be deemed to be a qualified person till such time as that register is prepared.
(c) has not less than four years' practical experience of dispensing which is in the opinion of the Licensing Authority adequate and has been approved by that authority as a qualified person on or before the 31st December 1969.
16. It is an admitted case of the parties that the petitioner was appointed in 1975 by the Super Bazar; he had relied upon a certificate that he was 'qualified person under the Drugs and Cosmetics Act. The certificate was issued by the Drugs Controller. His application to the Super Bazar contains a specific reference to the certificate number and the date of its issuance. The petitioner was apparently issued with the certificate in terms of Section 32-B(b) on the basis of his being such a qualified person. The Super Bazar apparently wrote to the Pharmacy Council enquiring about the correctness of the certificate issued. The reply of the Pharmacy Council makes interesting reading; it merely states that though the petitioner was having Registration No. 2953, he was not metriculate and that the previous Registrar and the Clerk in its office had expired.
17. The petitioner has placed on record a letter by the Drugs Controller of Delhi Administration dated 23.2.1973 addressed to the Manager of Super Bazar itself. That letter reads as follows:
Subject : Sale of all schedule drugs by approved qualified person under the drug and cosmetics Act and Rules.
Sir,
With reference your letter no. Nil dated 02.02.1973 on the subject noted above. In this connection I am to inform you that according to Rule 65(15) (a) and (c) of the drugs and cosmetics Rule 1965, person having not less than four years present experience of dispensing and they have been approved by licensing authority as Qualified Person as on or before 31st December, 1969, within the definition of Qualified Person as such, person approved by this department on or before 31 December, 1969 as Qualified person, the otherwise do not hold a diploma or degree in pharmacy or pharmaceutical chemistry or etc. Registered Pharmacist are entitle to sale all kind of drugs including those prescribed by the registered medical practitioners except the operation of pharmacy as per the requirement of schedules of the drugs and cosmetics Rules, 1948.
thereforee those persons approved by the licensing authority referred to above as per in charge of Drugs store (Dispensing) pharmacy is not operated.
18. It is not in dispute that the certificate issued under Section 32-B was on the basis of the earlier certificate issued by the Drugs Controller.
19. The letter of the Pharmacy Council nowhere disputes the genuineness of its certificate. In the conspectus of these facts and particularly the findings of the inquiry officer that the petitioner was not guilty of the major charges leveled the only point is whether metriculation had been prescribed as essential qualification in order to be a qualified person under the Drugs and Cosmetics Act, prior to 31.12.1969.
20. The materials on record, apart from findings of the inquiry officer also show that the employer did not at any stage rely upon recruitment rules; indeed there is no material to indicate that at the time of recruitment of the petitioner the qualification as is being insisted now had been advertised or prescribed. The second significant factor which has to be kept in mind is that the Pharmacy Council has to follow the procedure prescribed under the Pharmacy Act under Section 36 to remove any member's name from the register. Nothing on record suggests that such procedure was followed.
21. I am of the view that the mere opinion of the Pharmacy Council taken in 1999 and communicated to the Super Bazar without any further disclosure about the petitioner's ineligibility, cannot translate into a legal or essential requirement, for employment, in the absence of any other material. The petitioner has established the genuineness of the certificate issued by the Pharmacy Council; indeed he was exonerated of the charges on that score. If there was any lingering doubt about his ineligibility to hold the certificate as a qualified person prior to 31.12.1969, which was directly relateable to his entitlement for registration under the Pharmacy Act, the latter body was under a duty to follow the procedure established by law. It is ;not the case of the Super Bazar that such procedure was even contemplated much less followed, leading to the removal of the petitioner's name from the register. thereforee, the order of dismissal was clearly issued without any evidence and by complete non application of mind.
22. The Court sitting in judicial review has limited jurisdiction to examine correctness of findings in departmental proceedings. However, the Supreme Court and this Court have consistently taken the position that where the order or the findings are based upon no evidence or are based on a complete misreading of materials, it would be open to the Court under Article 226 of the Constitution of India to interfere with the findings and the disciplinary order (Ref Union of India v. H.C. Goel : (1964)ILLJ38SC ; B.C. Chaturvedi v. Union of India : (1996)ILLJ1231SC ; State Bank of Patiala v. S.K. Sharma : (1996)IILLJ296SC and Nand Kishore Prasad v. State of Bihar : (1978)IILLJ84SC ) I am of the opinion that the present case falls in the category of no evidence as also non application of mind. The impugned order of dismissal is thereforee arbitrary and liable to be quashed.
23. In the normal circumstance in view of the above findings the petitioner would be entitled to reinstatement. However, admittedly, a winding up order has been passed against Super Bazar and by virtue of that development all employees were deemed to have put on notice about their termination some time in the year 2003. In this view of the matter, it is declared that the petitioner is entitled to continuity of service till the date when other employees of Super Bazar were retrenched or terminated from employment as a result of winding up order. The petitioner's terminal dues including, gratuity provident fund and such portion of the salary as may be admissible shall be calculated and an order issued by the respondent in that regard within 10 weeks from today. The petitioner's entitlement shall be duly calculated and paid in accordance with law having regard to the precedence of such class of claims in liquidation proceedings.
24. The Writ petition is allowed to the extent indicated above. No costs.