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2006 DIGILAW 419 (PAT)

Ramanand Kumar v. State of Bihar

2006-05-04

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(ORAL ORDER BY DR. J.N. BHATT, CJ.) In this group of seven writ petitions common questions have been raised, therefore, upon consensus, they are heard together and, now, are being disposed of by this common judgment. 2. The petitioners initiated legal battle by filing this group of seven writ petitions by invocation of the provisions of Article 226 of the Constitution of India questioning the legality and validity of the termination orders passed against them by one order dated 1st December, 2000, who were till then working in the Primary School, as teachers for a spell or more than 2 decades, inter alia, contending that their termination from the services from the post of teachers of Primary School has been unauthorised, without jurisdiction and illegal and violating the provisions of Articles 14, 16 and 311 of the Constitution of India. 3. The respondents have, inter alia, countenanced the allegations levelled in this group of petitions contending that appointment of the petitioners on the post of primary teachers is found to be contrary to the recruitment rules upon investigation of the genuineness of the appointment orders of the said teachers so far as Purnea district in the State of Bihar is concerned. It is the further case of the respondents that the appointment letters of the petitioners on verification were found to be forged and fabricated, despite that the petitioners managed to continue on the posts till the date of termination. 4. The respondents authorities have also pleaded that the petitioners were served with the show cause notices before termination of their services and upon consideration of the replies pursuant to the show cause notices, the authorities found that forged or fabricated orders brought them into the service. 5. It is in this context, the main question which would emerge for consideration determination and the judicial adjudication is as below: (i) Whether the termination orders passed by the respondent authority on 1.12.2000 after the service of more than 2 decades on the post of primary teachers is legal or valid, moreso in the light of the allegation of fabrication and forgery in appointment processes/letters/ orders, as the case may be, in all seven writ petitions in this group. (ii) With a view to appreciate the merits of writ petitions and the challenge against them, let there be skeleton projection of factual profile which is material and relevant for the purpose of determination and adjudication of the rival emergence and claims. The learned counsel appearing for the parties upon consensus has submitted material particulars of service record in this group of petitions and for the purpose of appreciating the rival claims of the parties, it would be expedient at this juncture to highlight the material service record particulars in a following tabular form, which would obviously facilitate the marking of facts and thorough consideration of the dispute raised in this group of petitions in the light of the aforesaid issues: Sl. CWJC No. of Date/year of Date/year of Whether How No. Case No. Petitioner Appointment Termination Stay order many granted by years the High worked Court for recovery of Salary 1. 1620/2001 1 15.2.1980 1.12.2000 Stay granted 20 years (Primary Teacher) 2. 2080/2001 1 29.10.1978 1.12.2000 Stay granted 22 years (Primary Teacher) 3. 2161/2001 1 4.6.1979 1.12.2000 Stay granted 21 years (As Assistant Teacher in Primary School) 4. 2163/2001 1 30.10.1978 1.12.2000 Stay granted 22 years (As Assistant Teacher in Primary Teacher) 5. 2227/2001 1 30.10.1978 1.12.2000 Stay granted 22 years (Primary Teacher) 6. 2273/2001 1 30.10.1978 1.12.2000 Stay granted 22 years (Primary Teacher) 7. 2285/2001 1 19.04.1978 1.12.2000 Stay granted 22 years (Primary Teacher) 6. The learned counsel for the parties have offered their submissions. They have also taken this court to the relevant material, documentary evidence, as well as, the affidavits placed on record. The service dossiers of the petitioners as Primary School Teachers have also been placed on record which are considered. Some of the decisions which are relied on in course of submissions before this Court are also examined. The relevant principles and perceptions of the service jurisprudence and the proposition of law relevant to the issues have been also examined and considered. 7. It would be pertinent to highlight the following factual aspects which are not in controversy and which will have material relevance to the adjudication of the aforesaid proposition followed hereinbelow: (i) All the petitioners came to be appointed as Primary Teachers in the Primary School in the district of Purnea.. 7. It would be pertinent to highlight the following factual aspects which are not in controversy and which will have material relevance to the adjudication of the aforesaid proposition followed hereinbelow: (i) All the petitioners came to be appointed as Primary Teachers in the Primary School in the district of Purnea.. 5 out of 7 came to be appointed in the year 1978, one came to be appointed in the year 1979 and the first petitioner in the first petition came to be appointed last in 1980. (ii) There is no dispute about the fact that they are qualified persons. (iii) There is no dispute about the fact that there was vacant post on which each of them came to be appointed. (iv) Petitioners have continuously worked for spell of more than 2 decades as Primary School Teachers after their appointment. (v) Petitioners in course of service till termination continued to get revised pay as well as allowances. (vi) They continued to get periodical increments released by the authorities. (vii) A few months before termination there was no complaint or objection against their appointment as per the record of the case. (viii) One of the petitioners is about to reach the superannuation age and some of them are, also very close to the superannuation age. (ix) After termination en bloc which came to be recorded by one order passed on 1.12.2000 the petitioners knocked the doors of justice and hence these seven petitions under Article 226 of the Constitution of India. 8. The respondents-authorities have filed counter affidavits, inter alia, contending: (i) that the complaints came to be received about the genuineness of the appointment letters or orders as the case may be; (ii) all such complaints were investigated upon; (iii) thereafter the show cause notices were also given to the petitioners and they had submitted their replies; (iv) upon consideration of the complaints, enquiry, investigation and the replies filed by the petitioners the respondents authorities found that appointment orders or letters of all the petitioners were doubtful to be ingenuine; (v) whether the doubt would take the place of proof will be a point to be considered hereinbelow in course of judgment? (vi) The appointment for the post of primary teacher was to be made by the Appointment Committee of the teachers of Primary School which is not done in the present case. 9. (vi) The appointment for the post of primary teacher was to be made by the Appointment Committee of the teachers of Primary School which is not done in the present case. 9. Let it also be highlighted, at this "juncture. It is the case of respondents authorities that in the year 1978 a meeting of the Appointment Committee of teachers of the Primary School was held on 8th June, 1978 under the Chairmanship of the Collector of Purnea district consisting of the District Education Officer, Superintendent of Education, Inspectors of Schools and some other official members of the Purnea district. It is the further case that in the said meeting apart from other decision, decision was also recorded specifically to make appointment of trained lady teachers, untrained Harijan teachers as well as Urdu knowing B.Sc. and I.Sc. teachers on the sanctioned post in the following manner:- (A) Trained lady teachers - 25 (B) Untrained Harijan teachers - 34 (C) Urdu untrained B.Sc. & I.Sc. teachers - 22 Total - 81 10. The list of the teachers to be appointed was prepared in the meeting, a copy whereof was placed on record. It is the case of the respondents that the petitioners name did not figure in the list which was prepared by the authorised committee. 11. It is in this context it has been alleged by the respondents that by playing fraud and misrepresentation on the department, petitioners had got opened service books and thereafter got transferred from school to school for a period of more than 20 years. It is, therefore, pleaded by the respondent authorities that on the basis of forged and fabricated appointment letters petitioners have entered into employment unauthorisedly and without any sanction of law. Show-cause notices were served upon the petitioners, they had filed their replies, they were considered by the authority and thereafter the impugned termination order recorded on 1st December, 2000 came to be passed against the petitioners terminating their services from the post of primary teachers. They had also issued notices after termination for the recovery of the salary paid to the petitioners in the past. Since the date of termination the petitioners are not in job, however, by interim order of this Court, recovery of the salaries paid to the petitioners in past while working as primary teachers has been stayed. 12. They had also issued notices after termination for the recovery of the salary paid to the petitioners in the past. Since the date of termination the petitioners are not in job, however, by interim order of this Court, recovery of the salaries paid to the petitioners in past while working as primary teachers has been stayed. 12. The question which, now, falls for consideration, at this juncture is as to whether in the aforesaid set of factual profile the impugned termination order against the petitioners could be said to be vulnerable and assailable. Ordinarily in a case of prima facie proof of fraud and fabrication, no court of law can assist or render juridical view to the wrong doer or to the party who is privy to the fraud. This proposition is very well established and expounded. It is therefore, this Court would not go any further on that aspect. However, the question which requires to be considered and adjudicated upon is as to whether the plea of fraud has some support from the material on record and it is, whether the petitioners could be attributed to have contributed in the emergence of the alleged fraud or fabrication of the documents. If these two aspects are established even on prima facie basis, obviously the petitioners would not be able to claim any legal help. 13. Therefore, it is, now, to be considered as to whether a plea of fraud and fabrication of the document for appointment has some legal leg to stand. What is relied upon in this connection is the result of the enquiry and investigation conducted by the District Superintendent of Education upon receipt of complaints of ingenuineness of appointment letters. The authority before passing the termination order has mainly relied on the inquiry conducted by the District Superintendent of Education followed by the Director of Education Which has been placed on record alongwith affidavit as an annexure-A on page 58 in the main first petition. It is examined by the Court. It is recorded in Hindi language. Therefore, learned counsel explained this court also in English. It is examined by the Court. It is recorded in Hindi language. Therefore, learned counsel explained this court also in English. It is not disputed that the annexure A, order of the Director of Education, states that in case of 7 petitioners, since their appointment orders or letters were not tallying with the signature of the District Superintendent of Education, Purnea and therefore, their resultant suspicion which led to the belief and conclusion that their appointment orders are fake, false and forged. 14. Let it be mentioned here that admittedly show cause notices issued to the petitioners in this group of petitions do not even remotely insinuate that the petitioners were creators of fraud or were partly responsible for the fabrication or forged orders. No such allegation in the show cause has been given. Obviously, therefore, there was no question of giving reply to that part which was not levelled in the show cause notices. No doubt it is manifest from the settled proposition of law that if the fraud is established no show cause notice about the principles of natural justice can be insisted upon by the player of the fraud or motivator of the fraud. Here the show cause notice was given to each one. It appears there was suspicion. There was no fraud or prima facie strong fraud has been played or if there had been a fraud in mind there was no mention in the show cause notice which has remained unexplainable till this judgment is being dicated. It is in this context, the requisite procedure to be followed by observing the principles of natural justice does not seem to have been observed. What is required to be shown and seen is the fake, false or fabricated signature on the appointment letters or orders. That part does not seem to be clearly articulated in the show cause notice. It is for the first time in the counter affidavits a plea came to be raised. 15. Apart from any supportable material to refer the plea of forged and fabrication on appointment letters, no other material is placed on record to show that fraud has been committed and as such the petitioners were responsible as principal or contributories constituents. It is for the first time in the counter affidavits a plea came to be raised. 15. Apart from any supportable material to refer the plea of forged and fabrication on appointment letters, no other material is placed on record to show that fraud has been committed and as such the petitioners were responsible as principal or contributories constituents. It is in this context, what was to be examined and considered has not been examined and what was not very material to be seen and examined, has been seen and examined. Show cause notice does not remotely stipulate the real cause which had passed in the mind of the authorities at all, as otherwise also human mind is unfathomable, does not reflect anything on this aspect in the show cause notice. It is, therefore, at this stage necessary that the petitioners who have been working continuously without any objection for long spell of more than two decades as teachers in the primary school in Purnea district without there being specific allegation of fraud or otherwise, any illegality or any material in support thereof except the suspicion which came to be generated in the mind of one officer who was not concerned at the relevant time could not constitute a launching pad for passing an order of termination of teachers who have been working since more than two decades who have been regularly paid salary, who have been regularly paid increments and periodical benefits in terms of money, who have been transferred from school to school, who have been working without any objection and who have, now, no future if they do not get sufficient opportunity of hearing to meet the charges, it is in this context the following decision of the Hon'ble Apex Court which has taken the same view as being now rendered by this Court may be cited. 16. In Subodh Kumar Prasad Vs. State of Bihar, 2001(3) PLJR 187 the Hon'ble Supreme Court has held that lack of proper enquiry and investigation in case of allegation of fake appointment letters there is no sufficient compliance of natural justice which would be a necessity in deference to the materials of the said decision. Appellant before the Hon'ble Apex Court was appointed as a Compounder on 12.11.1982 and his services stood con-. firmed by an order made on 15.12.1994. Appellant before the Hon'ble Apex Court was appointed as a Compounder on 12.11.1982 and his services stood con-. firmed by an order made on 15.12.1994. However, on 1.1.1997 a show cause notice came to be issued to the appellant to give reply to the same by 3.1.1997 and his services were terminated. 17. Let it be mentioned that the ground upon which services were sought to be terminated is as follows: "The Civil Surgeon, Hazaribagh, vide letter No. 2300 dated 23.12.1996 (copy enclosed) has informed the undersigned that letter No. 2681 dated 12.11.1982 no appointment letter has been issued to anyone. Hence your appointment is fake.” 18. In that context it has been held that what should have been, really, examined in the case is the letter of appointment itself and not the mere registers which indicate despatch of letters. If the letter of appointment issued to the appellant was a fake one there was certainly a cause for disciplinary action, but not by merely looking to the register such conclusion could be inferred for numbers noted therein may have been as a result of mistake. Therefore, the inquiry should have been as to the actual nature of the order or the letter of appointment issued to the appellant. The proposition which is laid down in this decision is very clear that when a person who is put in by fraud spent for more than two decades in the employment and he is terminated like a fly from the cup of tea there may not be justifiable, supportable, reliable and acceptable case where otherwise inquiry would not appear proper. 19. While viewed from the proposition laid down in the aforesaid decision coupled with the factual profile of the present group of seven writ petitions, it cannot be said that the principles of natural justice are observed in due letter and spirit. A person who is holding post for long time is likely to be visited with civil or evil consequences after 20 years of service cannot be terminated without proper observance of the principles of natural justice. A person who is holding post for long time is likely to be visited with civil or evil consequences after 20 years of service cannot be terminated without proper observance of the principles of natural justice. It is, therefore, this Court is happy to mention at this stage that learned counsel appearing of the State rightly agreed that a fresh inquiry shall be conducted by the High Powered Committee the constitution of which will be considered by the Chief Secretary of the State and petitioners will be given reasonable opportunity of hearing and thereafter their cases will be reviewed and till then recovery of past pay amount shall not be made from the petitioners against the payments made to them while they were working in schools as teachers till the date of termination. It is to be appreciated. 20. However, let it be also mentioned that the learned counsel appearing for the petitioners have submitted that the interim order staying the recovery of money from the payment of past salaries may be confirmed till the decision is reached by the High Powered Committee. It is further submitted that the same may not be implemented for a period of one month after the decision is reached so that petitioners also would avail further redressal if they so require. 21. It in this context, while quashing the impugned order of terminations upon consensus of the parties, no order of reinstatement needs to be passed as they are out of job since more than five years and therefore, there would not arise payment of any back wages. However, with regard to the interlocutory order staying the recovery, action of the respondents is made absolute and it is hereby directed that the respondents authorities shall not be entitled to recover from the petitioners irrespective of the result of the inquiry to be conducted by the High Powered Committee. 22. The High Powered Committee will afford opportunity of hearing to the petitioners after giving fresh show cause notice in the factual context raising all the allegations. The question of non-payment of salary to some of the petitioners of few months prior to the date of termination is rightly not pressed to be decided in this group of petitions. The High Powered Committee obviously is expected to deal with this matter expeditiously since some of the petitioners are on the verge of superannuation. The question of non-payment of salary to some of the petitioners of few months prior to the date of termination is rightly not pressed to be decided in this group of petitions. The High Powered Committee obviously is expected to deal with this matter expeditiously since some of the petitioners are on the verge of superannuation. We hope and trust that in the peculiar facts and special circumstances obtainable in the present group of writ petitions under Article 226 of the Constitution of India the High Powered Committee will pursue the inquiry or action at the earliest and will pursue the same objectively. 23. With these observations the petitions shall stand allowed to the aforesaid extent while quashing the impugned termination orders and confirming the interlocutory relief against recovery. 24. High Powered Committee will be constituted by the Chief Secretary preferably within two months and the Committee thereafter shall take up the matter and will expeditiously decide in the light of the observations made in this judgment, as early as, possible preferably within six months.