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2005 DIGILAW 512 (JHR)

Pandey Anileshwari Prasad And Ajit Kumar Sinha v. State Of Jharkhand

2005-07-15

N.N.TIWARI

body2005
ORDER N.N. Tiwari, J. 1. In these writ applications common issues, grounded on almost the similar facts, are involved and the writ petitioners are aggrieved by a common order. The said writ applications are, thus, being disposed of by this common order. 2. The petitioners in their respective writ applications have prayed for quashing of the part of the order bearing Memo No. 257, dated 16.3.2005 concerning them whereby the petitioners salary has been withheld coupled with the direction not to take work from them. 3. The said order has been passed on the basis of an inquiry report wherein the appointments of the petitioners have been found illegal/forged. 4. In W.P. (S) No. 1561 of 2005, the petitioner was appointed by order dated 10.7.1982 issued by the civil Surgeon-cum-Chief Medical Officer, Hazaribagh against a sanctioned vacant post of Non-Medical Assistant. After completion of more than three years, the services the petitioner was confirmed by order dated 4.9.1994. In the year, 1985 an inquiry was initiated alleging the appointment of the petitioner as irregular and in violation of the procedure. During the aforesaid inquiry, salary of the petitioner along with others were stopped, but subsequently, after inquiry regarding the validity/irregularity of the appointment, the payment of salary was resumed. The petitioner has been regularly discharging his duties with all sincerity and diligence. He also, passed Hindi Noting and Drafting Examination on 10.8.1986. He also completed his training for Non-Medical Assistant in the year, 1988. The petitioner was given first time bound promotion with effect from 11.7.1992. The petitioner has been also given benefit of A.C.P. A show-cause notice was issued by Memo No. 132, dated 15.3.2001 (Annexure-7) by the Civil Surgeon-cum-Chief Medical Officer, Koderma. It was alleged that as per the order of the Chief Secretary dated 19.6.1999, the Divisional Commissioner was empowered to prescribe inquiry procedure to find out irregularity in the appointments in the Health Department. The Deputy Commissioner, Koderma then constituted an Inquiry Committee in 2000 and the committee completed the inquiry and submitted its report. In the report, the appointment of the petitioner and others are allegedly forged and illegal. 5. The petitioner complained that copy of the inquiry report was not served nor any other document or materials, on which the said findings were based, was furnished to the petitioner. In the report, the appointment of the petitioner and others are allegedly forged and illegal. 5. The petitioner complained that copy of the inquiry report was not served nor any other document or materials, on which the said findings were based, was furnished to the petitioner. The petitioner filed his reply denying the allegations and stating inter alia that he was duly appointed in 1982 against the sanctioned vacant post and there was absolutely no illegality in his appointment. However, the petitioner demanded a copy of the inquiry report and the other documents on the basis of which the said allegation was framed so that the petitioner can make effective reply in defence. 6. Inspite of the petitioners said request, neither the inquiry report nor any other document was furnished to the petitioner. However, another show-cause notice dated 6.12.2003 was issued by the civil Surgeon-cum-Chief Medical Officer, Koderma stating therein that the Enquiry Committee has found the petitioners appointment as forged and illegal. The petitioner was called upon to furnish explanation supported by the evidences against the proposed punishment of termination of his services. The petitioner filed his reply stating, inter alia, that the document asked for by him were not furnished and the petitioner is in the state of uncertainty regarding the same and it was not possible to file an effective reply without knowing the basis on which the allegations were founded. He again requested for furnishing the copy of the inquiry report and other documents for further effective reply. 7. But, even thereafter, neither the inquiry report nor any other document was given to the petitioner. While the petitioner was awaiting supply of the inquiry report and the other relevant documents, to his utter dismay, he suddenly received the impugned order dated 16.3.2005 issued by the Civil Surgeon-cum-Chief Medical Officer, Koderma followed by letter dated 18.3.2005 issued by the District Leprosy Eradication Officer, Koderma whereby the petitioners salary has been stopped with a direction not to take work from him and others whose names appeared in the letter. According to the petitioner, the impugned order, as contained in Annexures-10 and 11 are wholly arbitrary, contrary to the rules and circulars and violative of principles of natural justice and the same are null and void. 8. According to the petitioner, the impugned order, as contained in Annexures-10 and 11 are wholly arbitrary, contrary to the rules and circulars and violative of principles of natural justice and the same are null and void. 8. In W.P. (S) No. 1801 of 2005, the petitioner has prayed for quashing the letter No. 114 dated 18.3.2005 (Annexure-12 in this writ application) whereby the petitioners salary has been sought to be stopped with a direction not to take any work from the petitioner and he was directed to hand over charge to the In-charge Medical Officer. The petitioner, Ajit Kumar Sinha was appointed on ad hoc basis to the post of Non-Medical Assistant Primary Health Centre, Barhi by order, issued by the Civil Surgeon-cum-Chief Medical Officer, Hazaribagh. The petitioners service was extended till further orders by letter dated 30.5.1983 by the Civil Surgeon-cum-Chief Medical Officer, Hazaribagh. The petitioners service book was opened on 30.5.1983. The petitioners service, however, was terminated on 1.10.1986 on the allegation that the appointment was made in violation of the rules and the reservation policy. The petitioner, thereafter, preferred writ application being C.W.J.C. No. 1595 of 1986(R) challenging the said order of termination of his service. The said writ application was allowed and the termination order was quashed on the ground that the petitioner was not given opportunity of hearing before passing the said order. The petitioner was, thereafter, reinstated in the service by order dated 18.10.1987. Subsequently, by order dated 28.8.1992 (Annexure-5) services of the petitioner was regularized. The service of the petitioner was thereafter confirmed vide letter dated 4.8.1994 (Annexure-6). The petitioner was given first time bound promotion by letter dated 27.9.1994 (Annexure- 7). The petitioner had been working regularly and had been getting his salary. Suddenly a notice was issued on 15.3.2001 asking the petitioner to show-cause as to why his appointment be not cancelled on the ground that his appointment letter seem to be forged on the basis of some inquiry. However, no copy of the inquiry report was served on the petitioner nor he had any knowledge about the inquiry. The petitioner, thereafter, filed his reply denying the allegation. The respondents, then maintained silence, but again on 6.12.2003 another show-cause notice was issued mentioning therein that the petitioners appointment has been found illegal and forged by the inquiry committee constituted for the purpose. The petitioner, thereafter, filed his reply denying the allegation. The respondents, then maintained silence, but again on 6.12.2003 another show-cause notice was issued mentioning therein that the petitioners appointment has been found illegal and forged by the inquiry committee constituted for the purpose. Again a detailed reply was sent by the petitioner denying the charges. The impugned order by letter No. 114, dated 18.3.2005 was then issued whereby the petitioners salary along with others was abruptly stopped with a direction not to take any work from the petitioner. Petitioner was also directed to hand over his charge to the in-charge Medical Officer (Annexure-12). It has been contended that the said impugned order is wholly illegal, arbitrary and void. The petitioner claimed that after through inquiry his service was confirmed as far back as on 4.8.1994 and there was no occasion for any further inquiry and that there was utter violation of the prescribed rules and the principles of natural justice. 9. The State-respondents contested both the writ applications. However, no counter-affidavit was filed in W.P. (S) No. 1801 of 2005 and it was contended that in both the cases the stand of the respondents are similar. In counter- affidavit filed in W.P. (S) No. 1561 of 2005 on behalf of the Civil Surgeon-cum- Chief Medical Officer, Koder-ma and the District Leprosy Eradication Officer, Koderma it has been stated, inter alia, that the impugned order has been issued on the basis of the inquiry report submitted by the inquiry committee. A copy of the extract of the report of the inquiry committee has been enclosed as Annexure A. It has been stated that the answering respondent has just joined as Civil Surgeon-cum-Chief Medical Officer only on 22.3.2005. However, there is no categorical reply to the material facts stated in the writ application and it has been simply stated that the statements are matters of records and require no comments. There is no specific denial of any statement made in the writ application. The document which has been brought on record as an extract of the inquiry report (Annexure A) in its column 16, simply mentions that the signature appears to be wrong and in column 17 "forged appointment". The counter-affidavit is, thus, sketchy and does not reveal things of any worth for the purpose of this writ application. 10. The document which has been brought on record as an extract of the inquiry report (Annexure A) in its column 16, simply mentions that the signature appears to be wrong and in column 17 "forged appointment". The counter-affidavit is, thus, sketchy and does not reveal things of any worth for the purpose of this writ application. 10. From the impugned order it appears that the same has been passed on the basis of some inquiry report submitted by a committee wherein it has been vaguely stated that the appointments of these petitioners along with nine others were illegal/forged. The petitioners name appear at Sl. Nos. 3 and 4 respectively. On bare reading of the impugned order it is not possible to understand as to what was the nature of the inquiry, what were the specific charges against each" of the delinquents and what were the evidences brought on record for establishing the alleged charges. The order is wholly perfunctory and non- speaking. The petitioners in the writ applications have stated that they were never given any opportunity to know about the materials on the basis of which allegations against them were based. They were not given any opportunity to participate in the inquiry and to cross-examine the witnesses examined, if any. The petitioners were not served with the inquiry report. And suddenly the impugned order has been passed stopping their salary. 11. The impugned order, thus, neither conform to the legal requirements nor that of the principles of natural justice and the same are wholly unsustainable. The petitioners have been in service for a pretty long time, for about more than two decades. Though there is a chequered background, yet on the earlier occasions their appointments were tested and the petitioners were confirmed in service. Even the time bound promotions were given to the petitioners. There are evidences of scrutiny of mode/ legality of their appointments at earlier occasions and then allowing the petitioners to continue in service. Such being the case, the procedure adopted by the respondents in issuing the impugned orders and abruptly stopping the petitioners salary and preventing them to work on their respective posts is whimsical, illegal and violative of Articles 14 and 21 of the Constitution of India. 12. Such being the case, the procedure adopted by the respondents in issuing the impugned orders and abruptly stopping the petitioners salary and preventing them to work on their respective posts is whimsical, illegal and violative of Articles 14 and 21 of the Constitution of India. 12. In view of the above discussion, these writ applications are allowed; the impugned parts of order by which the petitioners salary have been stopped and they have been prevented from discharging their duties are- quashed. Since the petitioners were illegally and without any reasonable cause prevented from discharging their duties, they are held entitled to get full salary of the intervening period. However, there shall be no order as to costs.