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2009 DIGILAW 1482 (PAT)

Pratap Narayan Mishra v. State Of Bihar

2009-11-26

J.N.SINGH

body2009
JUDGEMENT 1. Heard learned counsel for the petitioner and the respondents. 2. Petitioner in this writ application has challenged the order dated 30.11.2006 passed by the Respondent-Director, Secondary Education, Bihar, Patna, as contained in Annexure-1, by which services of eight teachers of different schools including this petitioner have been dispensed with from the date of their first date of joining in the School on the ground that they had obtained appointment on the basis of forged appointment letters. 3. From the impugned order, it appears that an enquiry was held and from the records of the Department it was found that they had obtained their appointment on the basis of fraud and forgery played by them. The order also mentions that they will not be entitled to any benefit of their services. 4. Learned counsel for the petitioner has challenged the said order on a very short ground. He submits that before the order was issued, and during enquiry, no notice was ever issued to the petitioner to submit his show-cause or any explanation in respect of the validity and genuineness of his appointment letter. He submits that, till the impugned order was issued, petitioner was in complete dark about any enquiry going on against him. He points out an order passed by this Court in the earlier writ application, being CWJC No.1485/2003, of the petitioner, as contained in Annexure-7, in which he had raised the dispute with regard to his claim for appointment as acting Head Master of the School wherein this Court observed that the petitioners status as an Assistant Teacher prima facie appear to be not in dispute. He submits that, now to deny his legitimate claim, respondents have terminated his service altogether on the charges of having obtained appointment on the basis of forgery and fraud played by him. 5. Learned counsel for the respondents submits that, for non-compliance of order of this Court as contained in Annexure-7, petitioner had filed a Contempt application which was dismissed by order dated 5.5.2006, vide Annexure-A to the counter-affidavit, on the ground that the order appeared to be complied with. He submits that in fact earlier order of this Court was complied with and the Regional Deputy Director of Magadh Division, Gaya, complied the order which is annexed as Annexure-8 to the writ application. 6. He submits that in fact earlier order of this Court was complied with and the Regional Deputy Director of Magadh Division, Gaya, complied the order which is annexed as Annexure-8 to the writ application. 6. So far as compliance of natural justice is concerned, learned counsel for the respondents has placed reliance on a Full Bench decision of this Court in the case of Awadhesh Kumar Chowdhury Versus the State of Bihar and others, reported in 1987 PLJR 1074 , and contends that in case of termination simplicitor, no compliance of Article 311 of the Constitution of India is required. He further relies on a Judgment of Honble Supreme Court in the case of Ashok Kumar Sonkar Vrs. Union of India & others reported in (2007) 4 Supreme Court Cases 54, and contends that the application of Principle of Natural Justice is not required in each and every case until and unless it is shown, as a fact, that prejudice is caused to the incumbent against whom the orders were passed. 7. In the lights of the facts of the case, the two Judgments, as relied upon by the learned counsel for the State, are not applicable in this case. The impugned order does not show that it was an order of termination simplicitor. It is also obvious that this is not a case where appointment of the petitioner was not found valid as per law which did not require compliance of Principle of Natural Justice or provisions of Article 311 of the Constitution of India as held by the Full Bench of this Court. The order shows that the petitioner was charged with having practiced forgery and fraud and having obtained his appointment on that basis. Thus, it is apparent that a stigma was cast upon him by the impugned order. The nature of the order also shows that petitioner was entitled to challenge this stigma, had he been allowed to do so in the matter. Therefore, clearly prejudice was caused to the petitioner by not giving him an opportunity to submit show-cause and explain the circumstances under which he obtained his appointment, before holding his appointment as forged and he having practiced the forgery and fraud in the matter. 8. In the said circumstances, this Court has no option but to allow this writ application. Annexure-1 dated 30.11.2006 is therefore, quashed. 8. In the said circumstances, this Court has no option but to allow this writ application. Annexure-1 dated 30.11.2006 is therefore, quashed. The matter is remitted back to the Respondent Director, Secondary Education to hold a fresh enquiry, after giving due opportunity to the petitioner, in compliance with Principle of Natural Justice, and pass a fresh speaking order thereafter only. The entire enquiry shall be completed and final order shall be passed within four months from the date of production/receipt of a copy of this order. It is made clear that, for the said four months or till further orders are passed by the respondent, whichever is earlier, petitioner shall not be entitled for his salary. However, in case, order is not passed within four months, and/or is passed in his favour, petitioner shall be entitled for payment of his entire arrears as well as current salary with all consequential benefits from the next day of the expiry of the said four months. 9. Learned counsel for the petitioner submits that, to expedite the matter, petitioner will obtain a copy of this order and produce the same before the Director, Secondary Education and shall also cooperate in the Inquiry. 10. This writ application is, accordingly allowed with the aforesaid observations/directions.