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2012 DIGILAW 1393 (PAT)

Tej Narayan Rai v. State Of Bihar

2012-10-01

RAVI RANJAN

body2012
ORAL ORDER I have heard learned counsel for the petitioner and the State and perused the records of this case. 2. Through this writ application the petitioner seeks quashing of the order as contained in memo no. 1343 dated 27.5.2010 issued under the signature of the District Superintendent of Education, Siwan dismissing the petitioner from service and also directing the Block Education Officer, Guthani to take steps for lodging the first information report against the petitioner who had obtained employment on the basis of forged certificate and as such deceived the department. The petitioner seeks further direction to the respondent authorities to allow the petitioner to continue as assistant teacher as the petitioner is likely to superannuate from service in the month of March 2014 and as he has discharged his duty for about 30 years very promptly. 3. The factual matrix of this case that emanates out of the averments made in this writ application is summarized as under. 4. The petitioner claims to have been appointed as a matric trained teacher in the Government Primary School Bakulari in Anchal Guthani, district Siwan and has joined on 15.5.1980. 5. It appears that the petitioner was suspended and had been subjected to a departmental inquiry vide order as contained in memo no. 196 dated 24.1.2002 for his alleged misconduct by deceiving the department in getting the period of his absence from 19.2.1999 to 13.3.1999 accepted as earned leave under garb of some strike which was going on during that period though during the same period he was in custody in connection with some criminal case. However, it appears that one Manager Singh had approached the State authorities with a request to take steps against the petitioner alleging that he had got appointment on the basis of a forged certificate. Thereafter, it appears that he had approached this Court for said purpose by filing C.W.J.C. No. 4578 of 2003. It further appears that a memorandum of charge was again served upon the petitioner stating that, on the basis of a forged certificate of a training, he had obtained Government employment as assistant trained teacher. He was directed to explain his views before the conducting officer who was directed to send the same with the inquiry report. The aforesaid memorandum of charge has been appended as Annexure C to the counter affidavit filed on behalf of the respondent no. 7. He was directed to explain his views before the conducting officer who was directed to send the same with the inquiry report. The aforesaid memorandum of charge has been appended as Annexure C to the counter affidavit filed on behalf of the respondent no. 7. Thereafter, it appears that respondent no. 7, i.e., the District Superintendent of Education had issued notice to the petitioner to show cause why he should not be dismissed from service as the Assistant Secretary (Vigilance), Bihar School Examination Board vide his letter no. 1226 dated 12.5.2009 had informed that the roll code and centre as well as the roll number, claimed by the petitioner as proof of appearance and passing the training examination conducted by the Bihar School Examination Board, stood entered in the name of some other candidate in the register maintained by the Board and as such his certificate is forged one. The petitioner had submitted his show cause and, thereafter, the impugned order as contained in Annexure 5 has been passed by the respondent no. 7. Subsequently, C.W.J.C. No. 4578/2003 was dismissed on 29.6.2010 as having become infructuous in view of the fact that the petitioner has already been dismissed from service. However, petitioner of this case (respondent in the aforesaid case) was given liberty to challenge the order in a separate writ proceeding. Hence, this writ application came to be filed before this Court. 6. As stated above, a counter affidavit has been filed on behalf of the State bringing on record the report sent under the signature of Under Secretary (Vigilance), Bihar School Examination Board, Patna regarding the petitioner’s certificate which was found to be forged after verification of the mark-sheet of the petitioner of the teachers training examination as well as the memorandum of charge and the show cause notice issued appending them as Annexures A, C and D respectively. 7. Learned counsel for the petitioner has submitted that from the records it would appear that though a full fledged departmental proceeding was proposed to be initiated for inflicting the major penalty of dismissal from service, however, dismissal order has been passed merely on consideration of reply to the show cause submitted by the petitioner and a report submitted by the Bihar School Examination Board. It is contended that the action of the respondent authority would be in teeth of the mandate of the Article 311 (2) of the Constitution of India which lays down that no person, who holds civil post under the State, shall be dismissed or removed by the authority except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard against those charges. It is submitted on behalf of the petitioner that though the charges were framed against the petitioner and inquiry officer was appointed, however, no inquiry was conducted in accordance with law and, merely on the basis of the communication by the Bihar School Examination Board, a decision regarding dismissal from service has been taken after a reply to show cause notice was filed by the petitioner. It is further urged that the respondent no. 13, who is nephew and co-sharer of the petitioner, has been in inimical terms with the petitioner and several litigations are going on between them, therefore, he had raised such issue only to settle score with the petitioner and as such the authorities should not have taken any action on the basis of the allegation made by such person who himself was involved in criminal cases. 8. Learned counsel for the petitioner has placed reliance upon a decision rendered by a Division Bench of this Court in Chief Post Master General v. Nirbhay Kumar [ 2008(3) PLJR 344 ] holding that the order of termination, since would be punitive one, that can only be passed after adopting a fair procedure and by holding a proper enquiry into alleged misconduct in accordance with the procedure laid down under disciplinary rules and in accordance with requirement of Article 311 of the Constitution. Thus, the Division Bench had set aside the impugned order on the ground that from every angle it appeared to be founded on the findings that the incumbent produced a bogus mark-sheet for entering in employment. It has further been held that, there being a casual nexus between the conduct of the applicant and the termination order, that could not be termed as a termination simpliciter of a temporary employee but would be a punitive order of removal or dismissal from service. Thus, full- fledged departmental inquiry was sine qua non for passing order of such punishment. 9. Thus, full- fledged departmental inquiry was sine qua non for passing order of such punishment. 9. On the other hand learned counsel for the State has placed reliance upon a decision of Hon’ble Supreme Court rendered in R. Vishwanatha Pillai v. State of Kerala [ AIR 2004 SC 1469 ] holding that if the appointment itself has been obtained on the basis of false certificate, such person cannot be considered to be a person holding a civil post within the meaning of Article 311 of the Constitution of India, thus, the same provision would not be attracted at all in his case. Learned counsel has also placed reliance upon a decision rendered by a Full Bench of this Court in Rita Mishra v. Director, Primary Education, Bihar [ 1987 BBCJ 741 ]. The Full Bench has held that the rights to salary, pension and other service benefits are entirely statutory in nature in public service. Therefore, these rights including the right to salary, spring from a valid and legal appointment to the post. Once it is found that the very appointment is illegal and is non est in the eye of law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise. In particular, if the very appointment is rested on forgery, no statutory right for payment of salary etc. would flow from it. It is submitted on behalf of the State that the aforesaid decisions of the Apex Court and Full Bench of this Court were neither brought to the notice nor were considered by the Division Bench in Chief Post Master General (supra). 10. From the consideration of rival contention following points emerge out for consideration by this Court:- (I) Whether a full-fledged departmental proceeding was mandatory in view of the provisions as contained in Article 311 of the Constitution ? (II) Whether the petitioner has been given reasonable opportunity by the authority concerned before passing of the order of dismissal ? (III) Whether the petitioner can claim and seek equity on the ground that he has been rendering unblemished service of about 30 years and in view of the fact that he is at the verge of retirement? 11. The aforesaid issues, being intertwined, are being considered together. (III) Whether the petitioner can claim and seek equity on the ground that he has been rendering unblemished service of about 30 years and in view of the fact that he is at the verge of retirement? 11. The aforesaid issues, being intertwined, are being considered together. This is admitted position that the authority concerned had requested the Bihar School Examination Board to verify the teachers training certificate of the petitioner as the same had been challenged to be forged one. It is also not in dispute that the Bihar Scholl Examination Board, after due verification, had informed the concerned authority that against the roll code number, roll number etc. name of different candidate stands entered in the records of the Board and, thus, the obvious conclusion is that the petitioner had never appeared in the examination and his certificate is forged one. The petitioner was given a notice to show cause as to why on this basis he should not be dismissed from service and he had given a reply thereto. The reply had been considered by the authority. It is stated in the impugned order that, except making a bald statement that his certificate is not forged, petitioner could not meet the points which had emerged for consideration and was not in a position to deny or rebut the information given by the Bihar School Examination Board by producing any evidence. The petitioner claims that a full-fledged inquiry should have been conducted, however, from perusal of the averments made in the writ application it does not appear that the petitioner has anywhere stated and claimed that his certificate is genuine and not a forged one except the statement made in paragraph 15 which is regarding what has been stated by the District Superintendent of Education, Siwan in the impugned order. Even at the time of hearing learned counsel for the petitioner was not in position to demonstrate before this Court that the certificate of petitioner is genuine. In such case this Court is left with no option than to hold that undoubtedly the petitioner had obtained employment on the basis of forged certificate. That being the situation again the issue emerges as to whether in such case also a full-fledged departmental proceeding was necessary ? In such case this Court is left with no option than to hold that undoubtedly the petitioner had obtained employment on the basis of forged certificate. That being the situation again the issue emerges as to whether in such case also a full-fledged departmental proceeding was necessary ? Undoubtedly, the Division Bench in Chief Post Master General (supra) it has been held that the employee, after having rendered 27 years of service cannot be thrown out on the basis that he obtained his employment fraudulently by producing a forged document without holding proper inquiry as the same is a mandatory provision under Article 311 of the Constitution. However, decisions rendered by the Full Bench of this Court of this court in Rita Mishra (Supra) and the Apex Court in R. Vishwanatha Pillai (Supra) do not appear to have been brought to the notice or considered by the Division Bench. The Apex Court has considered the decision of Division Bench of this Court rendered in Ishwar Dayal Sah v. State of Bihar [ 1987 Lab IC 390]. The relevant passage of the aforesaid decision of the Division Bench which has been quoted by the Apex Court is again reproduced for better appreciation: “If the very appointment to civil post is vitiated by fraud, forgery or crime or illegality, it would necessarily follow that no constitutional rights under Article 311 can possibly flow from such a tainted force. In such a situation, the question is whether the person concerned is at all a civil servant of the Union or the State and if he is not validly so, then the issue remains outside the purview of Art. 311. If the very entry or the crossing of the threshold into the arena of the civil service of the State or the Union is put in issue and door is barred against him, the cloak of protection under Art. 311 is not attracted.” 12. The Apex Court has also examined the decision of Full Bench of this Court in Rita Mishra (Supra). The relevant passage of the aforesaid decision of Full Bench is reproduced below: “13. It is manifest from the above that the rights to salary, pension and other service benefits are entirely statutory in nature in public service. Therefore, these rights including the right to salary, spring from a valid and legal appointment to the post. The relevant passage of the aforesaid decision of Full Bench is reproduced below: “13. It is manifest from the above that the rights to salary, pension and other service benefits are entirely statutory in nature in public service. Therefore, these rights including the right to salary, spring from a valid and legal appointment to the post. Once it is found that the very appointment is illegal and is non est in the eye of law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise. In particular, if the very appointment is rested on forgery, no statutory right can flow it.” 13. In the case which was being examined by the Apex Court the charge against the petitioner was that he had entered in service against reserved post meant for Scheduled Caste / Scheduled Tribe on the basis of false caste certificate. The genuineness of the caste certificate was examined by the Scrutiny Committee and that had been found to be forged. The authority concerned, after taking into consideration of aforesaid fact terminated the employee concerned which was upheld by the Kerala High Court also. The Apex Court has held that the appellant, as had obtained the appointment by playing fraud, cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder as the same would be not an appointment in the eye of law. Even no equity could be claimed on the ground of rendering service of about 27 years. The Apex Court has held that a person who seeks equity must come with clean hands. He, who comes to the Court with false claims, neither can plead equity nor would the Court be justified in exercising equity jurisdiction in his favour. The Apex Court has examined and accepted the decision of Full Bench of this Court rendered in Rita Mishra (supra) as has been quoted above. He, who comes to the Court with false claims, neither can plead equity nor would the Court be justified in exercising equity jurisdiction in his favour. The Apex Court has examined and accepted the decision of Full Bench of this Court rendered in Rita Mishra (supra) as has been quoted above. By way of last effort learned counsel for the petitioner has placed reliance upon a decision of Single Bench of this Court rendered in Yogendra Rai v. State of Bihar [2008(4) PLJR 636] to show that even though the authorities claimed that the petitioner had obtained service on the basis of forged certificate, his reinstatement was allowed by the Court. However, the aforesaid case is easily distinguishable on facts of the case inasmuch as in that case the learned Single Judge has clearly indicated that the authorities have come to such inference without any material on record as in none of the counter affidavits even a single forged certificate, as a matter of fact, had been produced. It has been found that even otherwise from the tenure of the show cause and the final order it appears that only some inference was being drawn that the employment must have been obtained on the basis of some forged certificate, without examining such certificate. However, in the present proceeding not only such certificate is in existence but the same has been verified by the Bihar School Examination Board and held to be forged one. 14. I have already indicated that the petitioner is not in a position to demonstrate even before this Court also that he is holding a genuine certificate and not a forged one. 15. In above view of the matter this Court does not have any difficulty in following the decisions rendered by the Apex Court, the Full Bench and the Division Bench of this Court as discussed above and, thus, it is held that the fraud affects solemnity , regularity and orderliness of the proceeding. Since very appointment of the petitioner to the civil post is vitiated by forgery it would necessarily follow that no constitutional rights under Article 311 can flow from such tainted forged appointment as the same would not be an appointment in the eye of law. Thus, the petitioner cannot claim any shelter under Article 311 of the Constitution as well as the Rules framed thereunder. 16. Thus, the petitioner cannot claim any shelter under Article 311 of the Constitution as well as the Rules framed thereunder. 16. Regarding the issue of equity that has been raised by the petitioner as he claims to have served for about 30 years and as would retire in March 2014, thus, he should be allowed to continue in service, it is held that same would also not be possible to be allowed in view of the fact that he cannot claim equitable consideration when he himself has got the appointment by playing fraud. 17. No other issue has been raised by the petitioner except that have been considered as above. 18. Accordingly, this writ application, being devoid of merit, is dismissed.