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2009 DIGILAW 507 (JK)

Parveeza Akther v. State

2009-10-26

MUZAFFAR HUSSAIN ATTAR

body2009
1. Petitioner came to be appointed as Lab. Bearer (class IV) in the pay scale of 750-940 under the provisions of SRO 43 of 1994 vide Government order No. 1489-Edu of 1994 dated 17th Nov. 1994. Petitioner joined her services in pursuance of the Government order (supra) till her services were terminated vide order No. 1818-DSEK of 1999 dated 11.08.1999 by Director School Education Kashmir. Being aggrieved of the said termination order the petitioner filed this petition on the principle ground that before issuing termination order no show cause notice was issued to her. 2. Respondents have filed reply affidavit and at para 4 thereof it is admitted that no show cause notice was issued to the petitioner as in the wisdom of respondents there was no requirement of issuing such a notice to the petitioner. 3. Heard ld. counsel for petitioner. Considered the matter. 4. The petitioner having been appointed by Government order (supra) joined her services attained status of employee and her services were thus protected by the Constitutional provisions contained in Article 311 of the Constitution of India read with Section 103 of Constitution of J&K. Further statutory protections became available to the petitioner in terms of J&K Civil Services (Classification, Control, Appeal Rules of 1956) (for short Rules of 1956). In terms of Article 311 of Constitution of India read with Section 103 of Constitution of J&K, a permanent employee can be dismissed, removed or terminated from services only after following procedure established by law. The procedure is contained in Rule 33 of the Rules of 1956 and a permanent employee can be dismissed or terminated from services only after following the mandate as contained in the said Rule. 5. Admittedly in this case, no procedure as provided in Rule 33 of Rules of 1956 has been followed, as no charge sheet has been framed, no enquiry has been conducted. The impugned order also reveals so, which is also admitted in the para 4 of reply, that whatever has been done by respondent No.2 was done at the back of petitioner. Respondent No.2 arrived at conclusion that petitioner entered into service on the strength of forged appointment order and while arriving at such conclusion admittedly no show cause notice was issued to the petitioner to explain her position. Respondent No.2 arrived at conclusion that petitioner entered into service on the strength of forged appointment order and while arriving at such conclusion admittedly no show cause notice was issued to the petitioner to explain her position. The impugned order besides having infringed the safeguards available to the petitioner as provided by the constitutional provisions as also in the statutory rules (supra), has also stigmized the petitioner. The petitioner was entitled to be heard which right admittedly has been denied to her. The impugned order in the facts of this case is rendered void-abintio having been issued without following requirements of Principle of Natural Justice. 6. The impugned order is bad in law on one more ground viz that the appointment order has been issued by the Government, whereas the termination order is issued by respondent No.2 an authority subordinate to Government. Article 311 (1) is reproduced as under:- "Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State. (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or hold a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed." 7. The rules may be giving powers to respondent No.2 to terminate/dismiss class IV employee(s) but petitioner having been appointed by the Government, in terms of Article 311(1) of the Constitution of India read with Section 126 of Constitution of J&K, the respondent No.2 being an authority not superior to the Government so could not pass the termination order. The termination order is rendered illegal on this score as well. 8. The allegation that the order of appointment on which the reliance is placed by the petitioner is the forged document, would not clothe the petitioner with any right in law. True it is that the document which is forged and under which any benefit is either sought or is tried to be sought cannot afford any protection in law to such a person. Forgery/fraud robs a document of all its legal effect and renders it inconsequential, conferring no right on the person who has pressed the same into service. Any benefit taken by a person on the basis of forged/fraudulent document is to be recovered back from such person. Forgery/fraud robs a document of all its legal effect and renders it inconsequential, conferring no right on the person who has pressed the same into service. Any benefit taken by a person on the basis of forged/fraudulent document is to be recovered back from such person. If on an enquiry it is proved that the appointment order relied on by the petitioner is forged document, then if any benefit is derived by the petitioner under such document, she shall be denuded of the same. 9. This petition is accordingly allowed. The order No. 1818-DSEK dated 11.08.1999 passed by respondent No.2 is quashed. However, the quashment of the impugned order shall not prevent the competent authority to initiate action in the matter and pass appropriate orders, but while doing so the competent authority shall follow the procedure established by law. It is declared that above said relief will not be available to the petitioner if she is out of service. In such eventuality, respondents are directed to give post decisional hearing to the petitioner and pass appropriate orders. If it is found that the appointment order is genuine then petitioner shall be restored back to service with all service benefits. Disposed of.