Narendra Pandey v. State of Bihar — 1984 DIGILAW 312 (PAT)

JUDGMENT : S. Shamsul Hasan, J.- Treating the appointments claimed by the petitioners as teachers of various schools as non est has given rise to this application under Articles 226 and 227 of the Constitution. 2. The facts and the points involved are in small compass but the pleadings are incompatible in size. All the 74 petitioners claim to have been appointed teachers on the basis of appointment letters issued to them by the appropriate authority, copies of which are Annexures 1 series. Their claim is that the post was advertised to which they responded, were subsequently interviewed and their names appeared in the panel known as 'Pratikshak Suchi' and ultimately appointment letters were issued and they joined their respective posts on the basis of their appointment letters dated 6.8.80 on different dates. Some of the petitioners were paid their salaries from 1980 to 1982 in one Jump sum while in regard to some, bills had been prepared and money had been drawn for paymeI)t when the authorities took the impugned steps and stopped payment. Their case is that the aforesaid step was taken without any notice to them to explain objections to their appointment before taking the impugned action. Representations were filed and ultimately by Annexure 7' appointment letter and other papers-were called for from one of the petitioners, i.e., Nawal Kishore Pandey (petitioner no.26), and such letters were issued to other petitioners also, and, accordingly, the papers called for were handed over by them to the authorities concerned, but no further step was taken by the respondents. Hence the petitioners have resorted to this application. 3. The stand of the State appearing from its pleadings is that these appointment letters are forgeries, the petitioners were not at all appointed and their names were not in the panel. Three internal enquiries were made and the enquiry reports, Annexures 'J', 'K' and 'L' to the counter affidavit, clearly indicate that the appointment letters are the result of conspiracy to defraud the Government by obtaining appointments by fraudulent methods resorting to forgeries etc. Specifically it is stated that the letters are forgeries because the despatch register does not contain the numbers of these letters and there are different entries at the relevant date. Further the appointment letters were purported to have been signed by Shri Sudhakar Pathak, who has denied the signatures to be his. Specifically it is stated that the letters are forgeries because the despatch register does not contain the numbers of these letters and there are different entries at the relevant date. Further the appointment letters were purported to have been signed by Shri Sudhakar Pathak, who has denied the signatures to be his. The petitioners answer these by saying that firstly wrong register has been mentioned in the affidavit and the right register has been concealed from this Court and secondly mere denial by Shri Pathak will not mean that his signatures have been forged, without his signatures being really examined by an expert. In any event the petitioners were not given an opportunity to explain that these allegations are entirely false. It was further submitted that it should be presumed that the petitioners had been properly appointed because they are in possession of the appointment letters and some of them have also been paid their salaries from 1980 to 1982. It was submitted by the State that the writ petition ought to be dismissed because of large scale concealment and the petitioners are not entitled to any relief because they are not Govt. servants at all. 4. In my view, this application has to be allowed primarily because of the violation of the principle of audi alteram partem. It is well settled that no body can be deprived of his appointment or visited with any civil consequence without observing the rule of natural justice. Temporary appointments can be terminated by simple letter of termination in terms of the conditions of appointment without there being any allegation other in the letter of termination or in the connected departmental records. Temporary appointments could also be terminated if they are contrary to some prescribed rules or procedure. But however if a temporary appointment is terminated on the basis of any allegation that ORDER :cannot be, sustained if it is passed without observing the principle of natural justice. A court can delve into the relevant file of the department concerned also to ascertain whether the termination was a termination simpliciter or as a result of any penal step or on the basis of any allegation. In the latter case again rule of natural justice has to be observed. Summing up, termination simpliciter without any allegation will be justified. A court can delve into the relevant file of the department concerned also to ascertain whether the termination was a termination simpliciter or as a result of any penal step or on the basis of any allegation. In the latter case again rule of natural justice has to be observed. Summing up, termination simpliciter without any allegation will be justified. Termination of appointment contrary to rules is also permitted but if termination is the result of any charge or allegation, even if the appointment is temporary, rule of natural justice and fair play must be observed. It will be appropriate to cite a very recent decision of the Supreme Court in Anoop Jaiswal v. Government of India (A.I.R. 1984 Supreme Court 636) on the questi on relating to the violation of the rule of natural justice. The passage that is applicable to the instant case reads as follows :- "The form of the ORDER :is not decisive as to whether the ORDER :is byway of punishment and that even an innocuously worded ORDER :terminating the service may in the fact and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provisions of Art. 311(2). Where the form of the ORDER :is merely a camouglage for an ORDER :of dismissal for misconduct it is always open to the Court before which the ORDER :is challenged to go behind the form and ascertain the true character .of the ORDER :. If the Court holds that the ORDER :though in the form is merely a determination of employment, is in reality a cloak for an ORDER :of punishment, the Court would not be debarred, merely because of the form of the ORDER :, in giving effect to the rights conferred by law upon the employee. " 5. The instant case in on a worst footing. The authorities have unilaterally decided the whole matter, treated the appointment of the petitioners as non est and have thus inflicted punishment upon the petitioners without even issuing any camouflaged communication to them. It was not necessary to pierce the veil or delve into the record of the concerned Department because ample material was furnished in the affidavits of the respondent State right from the stage when vacation of the interim ORDER :was sought till counter affidavits were filed. It was not necessary to pierce the veil or delve into the record of the concerned Department because ample material was furnished in the affidavits of the respondent State right from the stage when vacation of the interim ORDER :was sought till counter affidavits were filed. The State by adopting a peculiar stance has not only terminated the appointments but has just treated them as non est. It must be kept in mind at this stage that the posts in question were advertised and the petitioners were actually applicants. The only dispute is whether the appointment letters were genuine or forgeries. This situation makes the application of the rule of natural justice and fait play even more applicable than in relation to cases where appointments art, terminated as a result of some charge or by way of punishment. 6. From the materials brought on the record by the counter affidavit filed by the State it appears that the appointments of the petitioners have been treated, as non est or de-recognised by the authorities on the following grounds. (a) Names of the petitioners do not appear in the Pratikshak Suchi of eligible candidates for appointment to the, post of assistant teachers for the years 1977 and 1979. (b) Names of the petitioners do not find mentioned in the list of, posting prepared before the issue of appointment ,letters on 6.8.1980. (c) In pursuance of letters of the office of the District Superintendent of Education, West Champaran, Bettiah, petitioners 3,5, 6, 8, 12, 17, 26, 33, 49, 51, 54, 56, 58, 69,70,71, 72, 73 and 74 had produced their appointment letters which bear letter Nos. above 476, all dated 6.8.1980. The issue register of the office of the District Superintendent of Education, West Champaran, has been checked up and it was found that these letters were never issued from his Office. In fact, through these memo numbers different letters were .issued to different persons on different subjects. These appointment letters are said 10 have been signed by Shri Sudhakar Pathak, the then District Superintendent of Education, West Champaran, Bettiah. These forged letters have been shown to him along with other such letters. Shri Pathak has categorically denied to have signed these letters and to have issued them. The statement of Shri Pathak has been annexed as Annexure 'D' to the counter affidavit. These forged letters have been shown to him along with other such letters. Shri Pathak has categorically denied to have signed these letters and to have issued them. The statement of Shri Pathak has been annexed as Annexure 'D' to the counter affidavit. The above facts clearly indicate that the petitioners a re the holders of forged appointment letters. 7. The basis of these conclusions are three enquiry reports which are Annexures 'J' 'K' and 'L' to the counter affidavit. They contain various allegations and findings against the petitioners, particularly relating to the manner of securing their appointments and consequent upon these reports the impugned steps were taken. Prior to the enquiry, which resulted in Annexures 'J' 'K', and 'L', the petitioners were asked to produce their appointment letters before the relevant authorities, which was duly complied with. It would have been advisable and proper both in law and in propriety to give notice to the petitioners of the result of the enquiry as contained in Annexures 'J', 'K' and 'L', and asked' for their explanation and version of the matter. They were not asked to participate in the enquiry when it was held by the Officers concerned resulting in the aforesaid reports. Not having done so, the authorities, in my view, cannot make them the basis for any action against these petitioners. They have even gone to the extent of relying upon the ipse dixit of Shri Pathak, who had denied his signatures on the appointment letters (Annexures 1' series), without getting any Opinion of an expert with respect to the same. Shri Pathak's denial could be motivated to save his own skin in view of the attitude of the authorities. 8. Annexures 'N' series appear to be the statements of the Headmasters and the District Superintendent of Education, Shri Pathak, recorded in the ex parte enquiry, and the latter's remarks, which have influenced the reports. Apart from the statement of Shri Pathak, the statements of the Headmasters aforesaid indicate that the petitioners never joined the concerned schools. The petitioners, however, were given no opportunity to cross-examine' these witnesses or disprove their assertions. 9. Be that as it may, the entire proceeding was held in a manner that was contrary to the rule of natural justice and fair play. The petitioners, however, were given no opportunity to cross-examine' these witnesses or disprove their assertions. 9. Be that as it may, the entire proceeding was held in a manner that was contrary to the rule of natural justice and fair play. The State cannot also get away from the fact that salaries were actually paid to some of the petitioners and bills of others had already been drawn by merely stating that those who were responsible for procuring their appointments, are being prosecuted or by the respective Headmasters saying that these petitioners never joined their posts, as stated in Annexures 'N/2' to 'N/4'. It appears that in their zealousness to respond to 20 Point Programme, which programme was strongly emphasised by the learned counsel for the State, the respondents have thrown all norms of propriety and rule of natural justice and fair play to the winds and have proceded with pre-conceived notion against the petitioners. It may be stated that initially the prayer in the writ application was, as stated above, to direct the respondents to pay past and future salaries of the petitioners in accordance with the details given in the petition. It was the State which furnished materials in the counter affidavit to indicate that the salaries of the petitioners had been withheld because, according to the State, the appointments having been obtained fraudulently were non est. State would have been well advised on the discovery of the state of affairs, which eld -to the impugned action, to issue notice to these petitioners asking them to show cause and after bringing to their notice the various irregularities now relied upon by the State and after considering the petitioners' explanations, it could have passed appropriate ORDER :s one way or the other. 10. Summing up, the net result is that the petitioners applied in response to the' posts that were advertised and their names, according to them, appeared in the panel which fact is denied by the State and received letters of appointment which have been described as forgeries by the respondents and some of the petitioners received their salaries for 1980 to 1982 while in regard to others bills had been passed. Three internal enquiries were held admittedly entirely ex parte in spite of various unilateral representations of the petitioners and in spite of the fact that appointment letters were called for from the petitioners and then payment of salaries of the petitioners for past and future have been stopped. Action of the respondents, in my view, on the face of it, is in gross violation of the rule of natural justice and fair play. Since the petitioners are in possession of letters of appointment, though described as forgeries, they are entitled to derive the benefits flowing therefrom until the letters are held to be forgeries at least in a properly constituted enquiry in which rule of natural justice is fully followed. I have, therefore, no hesitation in interfering in the matter by directing issuance of appropriate writs. 11. Let writ of mandamus be issued directing the respondent nos. 1 and 2 to treat the petitioners as duly appointed on the basis of Annexures-l series and let further writ of mandamus be issued directing them to pay their salaries and all other emoluments including arrears, if any, and current, immediately, and future salary regularly. This JUDGMENT : however will not stand in the way of the authorities holding proper enquiry in accordance with law find the rules of natural just ice in regard to the appointments of these petitioners if they are so advised. It is, however, made clear that past and future salaries and emoluments will not be stopped merely on the initiation or pendency of any enquiry and until an ORDER :adverse to the petitioners is actually passed and copy thereof is handed over to the petitioners' by the authorities concerned, 12. This writ application is, accordingly, allowed, with costs. Hearing fee Rs. 250/-.