Research › Search › Judgment

Patna High Court · body

2005 DIGILAW 934 (PAT)

Shambhu Nath Choudhary v. State Of Bihar

2005-10-07

NAVIN SINHA

body2005
Judgment 1. Heard learned Counsel for the petitioner and the learned Counsel for the State, 2. A Counter affidavit as also a supplementary counter affidavit has been filed on behalf of the State. The court proceeds to dispose-off this application at the stage of admission itself. The petitioner questions the order dated 10.9.1999 as contained at Annexure 11. The impugned order would terminate the services of the petitioner recording that in an enquiry the appointment of the petitioner would have been found to be irregular. The communication would then go on to add that the petitioner had joined the government service on a forged appointment letter which would be a case of fraud and deceit for which a First Information Report was required to be lodged also. 3. The petitioner would claim to have been appointed as a computer Operator by the Chief Medical Officer-Cum-Civil Surgeon, Hazaribagh vide letter no. 2364 dated 21.9.1984 and he would have accordingly joined on 23.9.1984. The petitioner would claim that after eleven years of service he would have been confirmed on 27.5.1995. The petitioner would then not have been paid his salary since May 1996 when he would have approached this Court in CWJC No. 5327 of 1999. The respondents would have taken the stand that the petitioner would not be cooperating by submitting photo copies of the necessary documents like appointment letter, transfer order etc. This Court disposed the writ application on 14.7.1999 with directions to the petitioner to submit all necessary papers as would be required by the Civil Surgeon-cum-Chief Medical Officer within three weeks. The petitioner was directed to cooperate with the enquiry proposed to be held. Such cooperation was required to be done in the manner that the enquiring authority may require, 4. Learned counsel for the petitioner makes a grievance that in pursuance of this order nothing further happened after he submitted his papers as required by the respondents by their letter dated 27.7.1999. The petitioner was never noticed for any enquiry, he was never communicated any dates for the same. He was not furnished with any material on the basis of which any purported enquiry was held and findings arrived at. No enquiry report was made available to him. The final order dated 10.9.1999 terminating his services came to be passed straightaway, which also would be non-speaking in nature. 5. He was not furnished with any material on the basis of which any purported enquiry was held and findings arrived at. No enquiry report was made available to him. The final order dated 10.9.1999 terminating his services came to be passed straightaway, which also would be non-speaking in nature. 5. Learned Counsel for the State would submit that the petitioner would have submitted his documents. The respondents would have then enquired into the matter internally including querres from the concerned offices where the petitioner worked and would have arrived at a finding that the petitioner would never in fact have been appointed and that his appointment letter was forged. He submits that in that view of the matter nothing further was required to be done and there was no occasion for noticing the petitioner once the conclusion of the letter of appointment being forged had been arrived at. He places reliance upon a judgment of the Supreme Court reported in 2004(2) PLJR 106 (SC) (R. Vishwanatha Piiai vs. State of Kerala & Ors.). 6. There is another aspect of this matter. In pursuance of the impugned order at Annexure 11 a First Information Report was also lodged against the petitioner. There would have been a full-fledged trial resulting in a judgment of acquittal dated 29.7.2003 at Annexure 12. From the recitals in the judgment this Court would find that the matter in the criminal proceedings was substantially and materially the same. This Court woufd notice the salient features in the judgment that only oral evidence was produced, none of the actors in the enquiry conducted with regard to the petitioner tendered evidence. There would have been no enquiry report produced before the Court. All the witnesses were hearsay witnesses. The result was, the petitioner was acquitted. 7. In the facts and circumstances of this case, this Court has no hesitation in recording that in terms of the order of this Court dated 14.7.1999 in CWJC No. 5327 of 1999, as noticed above, the respondents were clearly required to associate the petitioner with such enquiry. The counter affidavit and the supplementary counter affidavit on behalf of the respondents would not contend that the petitioner did not cooperate with the enquiry. The contention of the respondents would be that they did hold enquiry. The counter affidavit and the supplementary counter affidavit on behalf of the respondents would not contend that the petitioner did not cooperate with the enquiry. The contention of the respondents would be that they did hold enquiry. But it would also be their admission that the petitioner was not associated with the enquiry nor was he furnished the materials collected during this enquiry to arrive at the conclusion as contained in the impugned order dated 10.9.1999. The conclusion is thus obvious that the petitioner has been condemned on the basis of materials collected by the respondents behind his back without an opportunity to him to meet the same. The Apex Court in the case of Pillai (supra) sought to be relied upon by the respondents would record at paragraphs 4 and 5 of the judgment that the petitioner iherein was duly noticed, participated in the enquiry and then only a determination of the forged nature of the caste certificate was arrived after discussion of the oral and documentary evidence. 8. In pursuance of a Supreme Court judgment in another case, a Scrutiny Committee would have been constituted. The Committee duiy notified the petitioner, who participated in the enquiry, submitted documentary evidence in support of his caste status and then came the final determination of his having secured appointment on a forged caste certificate. !t was in this factual background that the Apex Court would have held that the appointment was void from its inception. 9. This Court would thus find that the case of Pillai (supra) would not lay down any proposition that in such a case there was no need of an enquiry even and that the same could be a unilateral act. 10. fn a more recent judgment reported in 2005(10) 3CC 465 (Chief Engineer, MSEB & Anr. vs. Suresh Raghunath Bharose) relating to the issue of a forged recommendation list on basis of which appointment would have been made, the Supreme Court would have held that the matter was required to be enquired before any final order could be passed and that it would be the duty of the Board to have specifically produced the material to prove that the respondents himself had the knowledge of such fraud and he knowingly or in collusion with other officials indulged in the fraud. Apart from the above, quite noticeably either in the present proceeding or in the proceedings before the criminal court the respondents have not placed on record any enquiry report which could be foundation for the final order at Annexure 11 dated 10.9.1999. The impugned order of termination would be clearly non-speaking in nature, it would also not contain any recital that the petitioner was duly heard, his documents considered and a reasoned conclusion arrived at. 11. The Supreme Court in a judgment reported in AIR 1997 SC 249 (Director General of Police & Ors. vs. Mrityunjay Sarkar & Ors.) while considering the challenge to an order of termination based on fake-fabricated document held at paragraph 3 as follows: "3.....lt would thus be clear that the foundation for discharge is production of fake list of persons from the Employment Exchange... Principles of natural justice require that they should be given reasonable opportunity of representation in the enquiry to be conducted and appropriate orders with reasons in support thereof need to be passed...." 12. In view of the aforesaid discussion and in the facts and circumstances of the case, this Court is satisfied that the respondents have clearly failed to comply the directions of this Court dated 14.7.1999 in CWJC No. 5327 of 1999. The impugned order dated 10.9.1999 at Annexure 11 is accordingly set aside. 13. As this Court has arrived at a finding of technical and procedural noncompliance by the respondents the matter would have to be remitted to the respondents to proceed afresh against the petitioner from the stage that they would have issued notice to him on 27.7.1999 in response to which the petitioner would have submitted his necessary documents. 14. It is made clear that this Court has not considered the contention of the parties on merits which would remain for consideration in the enquiry proposed to be held. It is made clear that should the petitioner not participate or cooperate in the enquiry it would be open for the respondents to proceed ex parte after recording their satisfaction to that effect. Let such exercise be carried by the respondents within a period of three months from the date of receipt/production of a copy of this order. 15. This order has been passed in presence of the Counsel for the respondents. 16. In the result this writ application is allowed to the extent indicated above. Let such exercise be carried by the respondents within a period of three months from the date of receipt/production of a copy of this order. 15. This order has been passed in presence of the Counsel for the respondents. 16. In the result this writ application is allowed to the extent indicated above. No order as to costs.