Chandubhai Bijalbhai Solanki v. STATE — 1992 DIGILAW 20 (GUJ)

J. M. PANCHAL, J. :-, J. ( 1 ) IN the present petition filed under article 226 of the Constitution of India, the petitioner has prayed for issuance of an appropriate writ, direction or order for quashing and setting aside the order dated 17th October 1985 terminating the services of the petitioner and has further prayed to direct the respondents to reinstate the petitioner in service, with all benefits including back wages. ( 2 ) THE petitioner was appointed on temporary basis as an Un-armed Police constable by an order dated 1st March 1983, which was published in the Police gazette dated 3rd March 1983. After the appointment, the petitioner was sent for training at P. T. S. , Baroda and on successful completion of the training, the petitioner was posted at the Ellisbridge police Station, Ahmedabad, by an order, which was published in the Police Gazette dated 2nd November 1983. Respondent no. 2 passed an order dated 17th October 1985 terminating the services of the petitioner with effect from the date of receipt of that order. The petitioner, therefore, made a representation to the commissioner of Police for taking the petitioner back in service. In reply to the above referred representation of the petitioner, the Commissioner of Police informed the petitioner by a letter dated 2nd December 1985 that during an enquiry it was found that the petitioner had given a wrong Certificate regarding his date of birth at the time of recruitment, and, therefore, the order of termination did not require any change. According to the petitioner, he was not heard by the respondents before coming to the conclusion that the petitioner had given a wrong Certificate regarding his date of birth at the time of recruitment and, therefore, the impugned order of termination dated 17th October 1985 being penal in nature and violative of principles of natural justice requires to be quashed and set aside. The petitioner has, therefore, filed the present petition and has claimed the reliefs, which have been stated hereinabove. ( 3 ) AN Affidavit-in-Reply on behalf of the respondents, has been filed by Mr. The petitioner has, therefore, filed the present petition and has claimed the reliefs, which have been stated hereinabove. ( 3 ) AN Affidavit-in-Reply on behalf of the respondents, has been filed by Mr. Mohan Jha, Deputy Commissioner of police, Administration, stating, inter alia, that the petitioner at the time of his recruitment in the year 1983 had produced a School Leaving Certificate in support of his age and the said School Leaving certificate revealed that the date of birth of the petitioner was 25th July 1962 and thus, the petitioner had attained the age of 18 years, but had not completed 22 years of age and, therefore, as the petitioner was found eligible, the petitioner was recruited to the post of constable. It is mentioned in the affidavit-in-Reply that the office of the commissioner of Police received an anonymous complaint in the year 1985 to the effect that the petitioner had produced a false School Leaving certificate and that the petitioner had never studied in Janseva High School and had studied in Samuhik Kendra Shala. It is stated in the Reply that pursuant to the above-referred complaint, an investigation was made and as a result of the said investigation, it was learnt that the date of birth of the petitioner was 25th July 1959 and thus, the petitioner had completed 22 years of age on 24th July 1981 and as the petitioner was not eligible for appointment as a constable, the petitioner was required to be discharged from service, and therefore, by an order dated 17th October 1985 the petitioner was discharged from service in accordance with the terms of his appointment. The deponent has further stated that the provisions made in Rule 33 of the Bombay Civil Services Rules do not apply to the police force and as the impugned order is not penal in nature and as the petitioners service is not sought to be terminated on account of any misconduct, it was not necessary to hear the petitioner. ( 4 ) MR. ( 4 ) MR. I. S. Supehia, learned Counsel for the petitioner submitted that after an inquiry, which was conducted behind the back of the petitioner, the respondents have come to the conclusion that the petitioner had given a wrong certificate regarding his date of birth at the time of recruitment and, therefore, this order being punitive in nature, opportunity of hearing should have been given to the petitioner and as no opportunity of being heard was given to the petitioner, the impugned order should be set aside, as the same is violative of the principles of natural justice. In support of this submission, learned Counsel placed reliance on the cases of (1) Jagdish parsad v. Sachiv, Zila Ganna committee, Muzaffarnagar and Others, a. I. R. 1986 S. C. 1108, (2) Mansukh madhavji Muliyana v. Indian Oil corporation Ltd. and Another, 1989 (1) glh (UJ) 24 and (3) Anoop Jaiswal v. Government of India and Another, a. I. R. 1984 S. C. 636. ( 5 ) MR. Nigam Shukla, learned Assistant government Pleader, submitted that the petitioner had obtained employment by deceitful means and, therefore, after holding an enquiry in the matter, service of the petitioner has been terminated and it was not necessary for the respondent to hear the petitioner. In support of this submission, learned Counsel for the respondents placed reliance on the case of (1) Reeta Mishra and Others v. Director, Primary Education, Bihar and others, A. I. R. 1988, Patna, 26 and (2) u. P. Junior Doctors Action Committee v. Dr. Shital Nandvani and Others, a. I. R. 1991 S. C. 909. ( 6 ) I have carefully considered the submissions made by the Counsel. The petitioner was appointed as an Un-armed police Constable by an order dated 1st march 1983 and thereafter the petitioner was sent for training at P. T. S. , Baroda and on successful completion of the training, the petitioner was posted at the ellisbridge Police Station, Ahmedabad and thereafter on 17th October 1985, service of the petitioner was terminated on the ground that the petitioner had given a wrong Certificate regarding his date of birth at the time of recruitment without giving any opportunity of being heard to the petitioner. In the present petition, the petitioner has produced school Leaving Certificate issued in the year 1981, which shows that the date of birth of the petitioner was 25th July 1962. In the present petition, the petitioner has produced school Leaving Certificate issued in the year 1981, which shows that the date of birth of the petitioner was 25th July 1962. The petitioner has also produced certificate of birth issued by the competent Authority on 2-11-1981, which also shows that the date of birth of the petitioner is 25th July 1962. The petitioner has also submitted in the affidavit-in-Rejoinder that the entry made in the General Register of Samuhik kendra Shala, Koth showing the date of birth to be 25th July 1959 was erroneous, inasmuch as he could not have been admitted in Standard-IV at the age of about 14 years. Thus, the petitioner has offered his explanation in this petition and, therefore, if the opportunity had been given to the petitioner, the petitioner could have produced the relevant record for the purpose of consideration of the authorities as to whether his date of birth was 25th July 1959 or 25th July 1962. ( 7 ) IN the case of Anoop Jaiswal (supra), the Honble Supreme Court of India has held as under:"it is, therefore, now well settled that where the form of the order is merely a camouflage 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 of 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. " ( 8 ) IN the case of Jagdish Parsad (supra), the appellant of that case was employed as a Clerk in the office of Zila ganna Adhikari, Muzaffarnagar in a temporary capacity. By an order dated 28th October 1976, his services were terminated on the ground that he concealed the fact of his removal from the service under U. P. Government roadways on charge of corruption at the time when he applied for the post of Clerk under the Co-operative Cane development Society Ltd. , muzaffarnagar. By an order dated 28th October 1976, his services were terminated on the ground that he concealed the fact of his removal from the service under U. P. Government roadways on charge of corruption at the time when he applied for the post of Clerk under the Co-operative Cane development Society Ltd. , muzaffarnagar. After examining the scheme of Regulation-68 of U. P. Cane co-operative Service Regulations, 1975, the Honble Supreme Court of India came to the conclusion that the order of termination was not an innocuous order, but an order, which on the face of it casts stigma on the service career of the appellant and was in effect an order of termination on the charge of concealment of the facts that he was removed from his earlier service under the U. P. Roadways on charges of corruption. The honble Supreme Court further found that the said order was penal in nature having civil consequences and also prejudicially affected the service career of the appellant and, therefore, the order having been made in utter violation of the principles of audi alteram partem, the said order was set aside by the Honble Supreme court. ( 9 ) IN the case of Mansukh Madhavji maliyana (supra) the appellant of that case was appointed as a Khalasi by the corporation by an order dated 19th november 1984 and he was required to state, while filling the attestation form at the time of joining service, whether any prosecution was pending against him in a Court of law. The appellant did not disclose in the said Form that some prosecution was pending against him and, therefore, on coming to know that the petitioner was really involved in a criminal case, the Corporation decided not to continue the petitioner in service. While examining the validity of the order of termination, the Division Bench of this court has held that without holding any enquiry on that aspect and without giving any opportunity of being heard, such an order could not have been passed. ( 10 ) IN view of the above referred judgments, it is clear that the impugned order also is penal in nature and casts stigma on the service career of the petitioner. ( 10 ) IN view of the above referred judgments, it is clear that the impugned order also is penal in nature and casts stigma on the service career of the petitioner. The order is having civil consequences and also prejudicially affects the service career of the petitioner, and therefore, the order could not have been made without affording any opportunity of being heard to the petitioner. ( 11 ) IN the case of U. P. Junior Doctors action Committee (supra), on the basis of alleged orders passed by a learned single Judge of Allahabad High Court in writ Petition No. 5267 of 1990, on 25-5-1990, an interim order of the lucknow Bench of the High Court on 4-6-1990 admissions were secured in post-graduate Medical Courses. Thereafter in "northern Indian Patrika", dated 11th August 1990 the matter was published with the heading bogus judgment abouts entrance exam. On such reports being published, the Honble chief Justice took up the matter and by an order dated 21st August 1990 directed the Registrar of Allahabad High Court to transmit the record, wherein the order dated 25th May 1990 was said to have been made. The Registrar, in his letter dated 22nd August 1990 addressed to the honble Supreme Court of India stated that there was no such case as Writ petition No. 5267 of 1990 (Dr. B. Sheetal nandwani v. State) and no judgment was delivered by Honble Mr. Justice anshuman Singh on 25-5-1990 in the said case. From the report of the Registrar of Allahabad High Court, the Honble supreme Court of India was satisfied that a fake order in a non-existent writ petition was produced before the High Court for securing the order dated June 1990 and admissions were secured in the post-graduate Medical Course and in such circumstances, the Honble Supreme court of India held that before cancelling the admissions, which were obtained by fraud, it was not necessary to give opportunity of hearing to the candidates, who had secured admissions. ( 12 ) IN the present case, nobody has reported to the respondents that the birth certificate produced by the petitioner at the time of recruitment is fake and in fact, as stated earlier, an inquiry was held in the matter by the respondents and, therefore, without giving an opportunity of being heard to the petitioner, the respondents could not have come to the conclusion that the petitioner had given a wrong certificate regarding his date of birth at the time of recruitment. ( 13 ) IN the case of Reeta Mishra and others (supra), the appointment orders were found to be fraudulent and illegal and in such circumstances, Full Bench of Allahabad High Court had held that the principles of natural justice are not attracted before the declaration by the state that the appointment is nonest, is made. ( 14 ) FROM the said judgment, it also appears that it was more or less an admitted position that the appointment letters were fraudulent and illegal and, therefore, the Full Bench of Honble allahabad High Court has held that it is not necessary to observe the principles of natural justice. ( 15 ) AS far as the present case is concerned, it has not been admitted by the petitioner that he had produced a wrong certificate regarding his date of birth at the time of recruitment. On the contrary, the petitioner has placed relevant material before this Court for the purpose of demonstrating that his correct date of birth was 25th July 1962 and not 25th July 1959 as held by the respondents. ( 16 ) IN the circumstances, I am of the view that the impugned order is penal in nature and has been passed by the respondents without affording any opportunity of being heard to the petitioner and, therefore, the same is violative of principles of natural justice, arbitrary and bad in law and contrary to the provisions of Article 14 of the constitution of India. ( 17 ) IN the result, the petition partly succeeds. The order dated 17th October 1985 terminating the services of the petitioner, is hereby set aside and quashed and the respondents are directed to reinstate the petitioner in service within two months from the date of receipt of the writ. ( 17 ) IN the result, the petition partly succeeds. The order dated 17th October 1985 terminating the services of the petitioner, is hereby set aside and quashed and the respondents are directed to reinstate the petitioner in service within two months from the date of receipt of the writ. As far as the back wages are concerned, the petitioner would be entitled to get the same subject to his satisfying the Authorities that the petitioner was not gainfully employed during the period in question. The petitioner would be entitled to make a representation to the Authorities for getting benefit of back wages and the respondents are directed to decide the said representation within one month from the date of receipt of the representation. It is, however, made clear that after affording opportunity of being heard to the petitioner and holding necessary inquiry into the matter of alleged production of fraudulent birth certificate by the petitioner at the time of recruitment, it would be open to the respondents to pass appropriate order in accordance with law. Rule is made absolute to the above referred extent only, with no order as to costs. .