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2004 DIGILAW 1188 (PAT)

Ajay Kumar v. State Of Bihar

2004-12-01

CHANDRAMAULI KR.PRASAD

body2004
Judgment Chandramauli Kr.Prasad, J. 1. This application has been filed for issuance of a writ in the nature of certiorari for quashing the order as contained in memo dated 1.3.2004 (Annexure-1) whereby the Regional Deputy Director of Health Services had directed the Civil Surgeon-cum-Chief Medical Officer, Muzaffarpur to hold enquiry in regard to the genuineness of the appointment of the petitioner. Further prayer made by the petitioner is to issue a writ in the nature of mandamus commanding the respondents to pay to the petitioner the salary of the post which he is holding. 2. In view of the order, which I propose to pass in this application it is inexpedient to give in detail the facts of the case. Suffice it to say that the petitioner claims to have been appointed validly as Clerk and according to him the report of the District Leprosy Eradication Officer, Muzaffarpur addressed to the Regional Deputy Director of Health Service dated 28.2.2004 (Annexure-7) clearly establishes that fact. By the impugned order the Regional Deputy Director of Health Services had directed the Civil Surgeon to make enquiry in regard to the genuineness of the letter of appointment of the petitioner. Till such time the enquiry is held salary of the petitioner has been stopped. 3. Mr. M.S. Madhup appearing on behalf of the petitioner submits that once a person holds a post duly sanctioned the only way to remove him is to hold detailed enquiry under the Service Rule by which the public servant is governed. Mr. Madhup points out that a person cannot be dismissed, removed or terminated from service without following the procedure as prescribed in the service rules. Mr. Madhup points out that a person cannot be dismissed, removed or terminated from service without following the procedure as prescribed in the service rules. In support of his submission he has placed reliance on a Constitution Bench judgment of the Supreme Court in the case of Parshotam Lal Dhingra V/s. Union of India (A.I.R. 1958 S.C. 36) and my attention has been drawn to paragraph 12 of the judgment, which reads as follows: "The position may, therefore, be summarised as follows: In the absence of any special contract the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years service or the post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry after due notice to him. An appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure and his tenure cannot be put an end to during that period unless he is, by way of punishment, dismissed or removed from the service. Except in these two cases the appointment to a post, permanent or temporary, on probation or on an officiating basis or a substantive appointment to a temporary post gives to the servant so appointed no right to the post and his service may be terminated unless his service had ripened into what is, in the service rules, called a quasi-permanent service. The question for our consideration is whether the protections of Art. 311 are available to each of these several categories of Government servants." 4. I do not find any force in the submission of Mr. Madhup and the authority relied on in no way supports his submission. The provision of the service rule or for that matter Article 311 of the Constitution of India shall be attracted when the appointment of the public servant is in accordance with lav;. I do not find any force in the submission of Mr. Madhup and the authority relied on in no way supports his submission. The provision of the service rule or for that matter Article 311 of the Constitution of India shall be attracted when the appointment of the public servant is in accordance with lav;. The service of the petitioner is not sought to be terminated on the ground of any misconduct which he had committed during the course of service but the authority desires to enquire into the genuineness of his letter of appointment. In my opinion, such an enquiry shall not be a detailed enquiry as provided under the Bihar and Orissa Subordinate Service (Discipline and Appeal) Rules, hereinafter referred to as the Rules, by which the petitioner is governed. In my opinion in a case in which the genuineness or otherwise of the letter of appointment is an issue no detailed enquiry as provided under the Rules is required to be held but an enquiry in conformity with the principle of natural justice is required to be conducted so as to meet the requirement of Article 14 of the Constitution of India. Article 311 of the Constitution or for that matter protection granted under the Service Rules shall be available to such employees who are validly appointed and not occupying the office under the strength of a forged letter of appointment. The Supreme Court in the case of Parshotam Lal Dhingra (supra) was considering the right of public servants validly appointed and procedure required to be followed in case of different kinds of employees i.e. permanent, temporary etc. when such employees are dismissed or removed from service. An employee entering into service on the strength of a forged letter of appointment, has no right to hold the post as his very appointment is void ab initio. However, before declaring his appointment as void ab-initio, an enquiry limited to genuineness of the letter of appointment is required to be held to meet the principle of natural justice. Obviously in such a limited enquiry such public servant is required to be given opportunity to place its view point. 5. Mr. Madhup, then submits that once an enquiry has been held in which the appointment of the petitioner has been found to be valid, respondents cannot be allowed to make enquiry once again. In this connection Mr. Obviously in such a limited enquiry such public servant is required to be given opportunity to place its view point. 5. Mr. Madhup, then submits that once an enquiry has been held in which the appointment of the petitioner has been found to be valid, respondents cannot be allowed to make enquiry once again. In this connection Mr. Madhup has referred to the letter dated 28.8.2003, written by the District Leprosy Eradication officer to the Regional Deputy Director of Health Services observing that the appointment /posting of the petitioner seems to be correct. The opinion expressed by the District Leprosy Eradication Officer is tentative and has not been accepted nor any concluded finding has been recorded in this regard. In that view of the matter, it cannot be said that the concluded finding in regard to the genuineness of the appointment of the petitioner has been recorded and the respondents intend to do it once again. Hence, I reject this submission of Mr. Madhup. 6. Mr. Madhup then submits that the reason assigned to come to the finding that the letter of appointment of the petitioner is prima facie forged is on account of absence of certain document but in fact those documents are available and as such while passing the impugned order the authority could not have come to that conclusion. I am afraid, present is not an appropriate proceeding to go into this question. Needless to state that same shall be decided during the course of enquiry. 7. Mr. Madhup lastly submits that the decision to withhold the salary during the pendency of the enquiry is illegal and the Rules by which the petitioner is governed does not provide for that. He points out that the petitioner could have been suspended from service or after regular departmental enquiry could have been dismissed from the service but till date such order is not passed, salary of the petitioner cannot be withheld. I do not find any substance in the submission of Mr. Madhup. As observed earlier the respondents intend to examine the genuineness of the petitioners appointment. In such contingency till the final decision is taken the respondents can withhold the salary. Such an order is not passed under the provision of the service rules. I do not find any substance in the submission of Mr. Madhup. As observed earlier the respondents intend to examine the genuineness of the petitioners appointment. In such contingency till the final decision is taken the respondents can withhold the salary. Such an order is not passed under the provision of the service rules. In case the petitioner had obtained appointment by forged letter of appointment, the appointment itself is void and on account thereof petitioner shall not be entitled for the salary. This point is not res integra so far as this Court is concerned. This question has been pointedly answered by this Court in CWJC No. 9146 of 1999 (Jeewacha Jha V/s. The State of Bihar) disposed off on 17.9.2004 in the following wofds: "I do not have the slightest hesitation in rejecting this submission of the learned counsel. Here in the present case, respondents have gone into the question of validity of the petitioners appointment and for that purpose, a notice has been given to him to furnish the documents to substantiate his appointment. In my opinion, in a case in which the authority goes to the very validity of the appointment, nothing prevents it from giving a direction for withholding the salary till the enquiry. Same principle may not apply in a case, where the step for removal or dismissal from service is initiated but certainly in a case, where the very appointment is under cloud and the authority intends ascertaining its very validity the salary can be withheld during the enquiry." 8. By the impugned order the Regional Deputy director of Health Services had directed for holding an enquiry in regard to the genuineness of the appointment of the petitioner. I do not know as to whether such an enquiry has been held and final order passed. In case the enquiry has not been held till date, such an enquiry be held and concluded within a period of six months from the date of receipt/production of a copy of this order, subject to the petitioner co-operating in the same. Payment of salary shall abide by the decision in the said enquiry. 9. Application stands dismissed in limine with the observation aforesaid.