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2010 DIGILAW 1862 (PNJ)

Rajesh v. State Of Haryana

2010-06-28

K.KANNAN

body2010
Judgment K.Kannan, J. 1. In the vast multitude of population, the identity of any person is fixed primarily by the names that persons have. Persons having the same names is not unusual and a distinction is still possible by reference to the fathers name but if fathers name is also the same, the distinction is the village name. If the village name is also the same, the confusion is worst confounded. This case illustrates the confusion arising out of two persons having the same name, fathers name and hailing from the same village and considered for selection to the same post. The petitioner who was selected to the post as a Clerk in the Urban Local Bodies Department was alleged to have taken advantage of his fathers presence as an employee under the same department to secure the benefit of appointment by using the name of the 4th respondent who, it was alleged, was the person which the department had considered for selection. The petitioner and the 4th respondent were both Rajesh son of Puran Chand of Narwana, District Jind. The petitioner was resident of Patel Nagar and the 4th respondent was resident of Hanuman Gali. The selection to the post was supposed to be on consideration of appointment on benefit of recruitment to persons who had worked during a general strike that was carried on the State of Haryana amongst the conservancy staff. The 4th respondent, who had been originally offered the appointment on his alleged voluntary offer of work during the strike period was later considered as not eligible when the authority came to know by information that he had not worked during the entire strike period, he had worked but for 16 days, which did not fulfill the requirement. The 4th respondent had independently challenged his non-selection by means of an independent writ petition, which was rejected by this Court by the order in C.W.P. No. 10748 of 2007 dated 11.05.2010. The case of the petitioner would require to be dealt with on its own merit without reference to the fact that the 4th respondents candidature itself was rejected by the Department of Urban Local Bodies. The case of the petitioner would require to be dealt with on its own merit without reference to the fact that the 4th respondents candidature itself was rejected by the Department of Urban Local Bodies. The 4th respondent was subsequently impleaded as a party and he had also joined the fray along with others to justify the order terminating the services of the petitioner by virtue of a complaint given by the 4th respondent that the petitioner had obtained the benefit of appointment by using his name. 2. If the 4th respondent himself was not eligible and therefore, the denial of employment to him was justified through an order and the petitioner was merely claiming the right which the 4th respondent was claiming, then even the petitioner would not be entitled to obtain the benefit of appointment. However, if the petitioners claim is not merely seen as having the same merit and qualification as the 4th respondent but he was pleading for an independent right of consideration by his own period of service during the strike period then the non-selection of the 4th respondent would be irrelevant. That was indeed the attempt of the learned counsel appearing for the petitioner when he pointed out that the 4th respondent was at no point of time contending earlier that the petitioner was trying to use his name to gain a selection. The learned counsel points out that even at the time when notices were sent to the Department through counsel both the petitioner and the 4th respondent had made a common cause that both of them were working during the strike period. According to the learned counsel, the 4th respondent was making out a case of impersonation against the petitioner only after the 4th respondents selection itself was annulled by an independent order. The learned counsel also relies on an enquiry that was held by the Additional Deputy Commissioner on a complaint by the 4th respondent that the petitioner was not working during the strike period. The learned counsel also relies on an enquiry that was held by the Additional Deputy Commissioner on a complaint by the 4th respondent that the petitioner was not working during the strike period. The so-called enquiry by the Additional Deputy Commissioner is pointed out by the learned counsel as having been done without serving any form of notice to him to explain his position and if he had been given an opportunity, he could have shown that he was working during the entire strike period, which was borne out through a joint application given by the petitioner and the 4th respondent on 24.04.2001. A joint notice had been issued by the petitioner and the 4th respondent on 16.06.2002 and also in the letter of the Deputy Commissioner, Jind when he wrote to the Commissioner and Secretary to the Government where he had admitted that the petitioner had been appointed as Clerk/Peon during the strike period. This fact had also been referred to in the earlier writ petition by the petitioner along with the 4th respondent in C.W.P. No. 904 of 2003. The petitioner also relies on a whole bulk of documents namely of letters of the Deputy Commissioner, Jind dated 20.07.2001 (Annexure P-6), the order of the Financial Commissioner dated 06.10.2003 where after perusal of all the records, the Financial Commissioner had observed that the petitioner had worked throughout the strike period. 3. The respondents have attempted to place on record some documents to show that the petitioner could not have worked during the strike period. The photocopy of the muster roll during the relevant period has been filed as well as the list of candidates who had allegedly worked during the strike period through Annexure R-2. It is seen that Annexures R-1 and R-2 do not contain the names of the petitioner. However, the learned counsel appearing for the petitioner points out that the original muster rolls themselves were not produced before the Court and there is no due authentication that copies had been taken from the originals. To drive home the point that the documents are not reliable, the learned counsel appearing for the petitioner points out to several discrepancies that several names in Annexure R-1 do not find place in Annexure R-2 and vice versa. There are no numbering of objects of muster roll and the serial numbers have been changed by cuttings and interpolations. To drive home the point that the documents are not reliable, the learned counsel appearing for the petitioner points out to several discrepancies that several names in Annexure R-1 do not find place in Annexure R-2 and vice versa. There are no numbering of objects of muster roll and the serial numbers have been changed by cuttings and interpolations. As an instance, the learned counsel points out that after Sr. No. 7 at page 79, the next number is number 27 at page 80, which shows that several serial numbers in between are missing. There is no date or period of the muster roll started from page No. 80 to 83 but in the translated copies starting from page 89 to 93, the period of muster roll is mentioned as from 17.12.1996 to 31.12.1996. The learned counsel points out that even when this Court had asked the respondents to produce the original records, the response was that the original records were missing but the written statement dated 09.05.2009 filed by respondent Nos.1 to 3 and in the written statement of the 5th respondent filed on 07.05.2010, they have categorically mentioned that they have prepared the statement on the basis of records and it is nowhere stated that the original records were missing. Learned counsel appearing for the petitioner, however, points out that the Financial Commissioner himself, while passing order on 06.10.2005 (Annexure P-10), has observed that he perused the records. Even the Deputy Commissioner in his letter dated 21.11.2005 when he was making a reference about the petitioners claim had not stated that the records were missing. The attempt was, therefore, to show that all the records were available till the year 2005 and they have concocted this theory of the records as not available only for the purpose of fabricating a false defence in the writ petition. 4. If the respondent was terminating the services of the petitioner only because they were satisfied that the petitioner was not working during the strike period or that they were under an apprehension that the petitioner was impersonating as the 4th respondent, the order could not have been passed without joining the petitioner in an appropriate enquiry after giving opportunity to the petitioner to show cause against the decision. The impugned order of termination of service issued by the 1st respondent has come out of the blue, when it is stated that that the petitioner had been wrongly appointed and to be, therefore, removed from service forthwith, it does not refer to any enquiry as having been conducted. The order issued by the Deputy Commissioner, Jind on 03.03.2009 also does not set out any where as to how the decision was taken without any form of notice to the petitioner. On the other hand, it merely refers to the fact that a clarification had been sought regarding the legality of appointment by the Commissioner-cum- Principal Secretary and the Director of Local Bodies Department finding that the petitioner had been wrongly appointed, has been taken the view in the light of communications by the Director, Urban Local Bodies Department and on the basis of an observation that the petitioner had obtained appointment on wrong basis. These decisions have been taken without involving the petitioner in any requisite enquiry process. Arguments have been raised at the bar for proposition as to how a decision for termination of service could not be taken without giving any show cause notice and what are the exceptions to such enquiries. A termination of service is invariably an extreme step and if it is taken on the ground of fraud or misrepresentation, such a decision could never be taken without giving an opportunity to the petitioner, who was alleged to have committed fraud or misrepresentation to explain the position. Even the documents relied on by the State namely the muster roll and the list of persons working during the strike period are not convincing. I have already pointed to the discrepancies. The whole issue grapples with facts of what the Court cannot decide on what could have been appropriately decided only after holding a full-fledged enquiry, when the petitioner has benefit of full participation to a finding that the appointment was wrongly made or that the appointment was made on the basis of a false representation relating to his name, age, his eligibility status etc. 5. The order of termination of service is consequently set aside and the writ petition is allowed. I see from the records that the petitioner had the benefit of order of stay during the pendency of proceedings to continue in his office. 5. The order of termination of service is consequently set aside and the writ petition is allowed. I see from the records that the petitioner had the benefit of order of stay during the pendency of proceedings to continue in his office. This order further shall not, however, prevent the respondents from issuing appropriate notice or framing a charge-sheet and taking an appropriate decision after a fulfledged enquiry when the petitioner shall have adequate opportunity to explain his stand. If any enquiry is contemplated, the same shall be taken in right earnest and concluded within a period of 12 weeks from the date of receipt of copy of the order. 6. The writ petition is disposed of on the above terms. Petition dismissed.