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Patna High Court · body

2012 DIGILAW 1454 (PAT)

Lalan Kishore Arohi v. State of Bihar

2012-10-11

RAVI RANJAN

body2012
ORDER I have heard learned counsel for the petitioner and the State and have perused the records of the case. 2. Petitioner seeks quashing of orders dated 27.6.2007 (Annexure-12) appended with the first supplementary affidavit passed by the Director, Education Department, (respondent no. 3), whereby the claim of the petitioner for reinstatement has been rejected on the ground that the petitioner’s appointment was forged one, as well as the order dated 27.04.2009 (Annexure-11) passed by the appellate authority rejecting the appeal preferred against Annexure-12 on the ground of being time barred. 3. Learned counsel for the State has submitted that the impugned order has been passed in compliance of the order dated 2.3.2007 passed by this Court in C.W.J.C. No. 8721 of 2003. 4. The factual matrix of this case emerging out of the pleading, which would be proper for determination of the lis between the parties, is being summarized as under. 5. The petitioner claims to had been appointed as Assistant Teacher after being successful in the selection procedure pursuant to the advertisement no. 1/88 published by Vidyalaya Seva Board, Patna, in the scale of Rs. 1640 – 2900/- vide Annexure 2 which is appointment letter dated 4.8.1992. It is stated that subsequently the petitioner’s service was confirmed and he was being paid salary and annual increments etc. However, subsequently some inquiry with regard to illegal appointments of the teachers on the basis of complaint made by some person was contemplated and a letter was issued to all the District Education Officers and Headmaster by the Director, Secondary Education, Government of Bihar for withholding the salary of the teachers till the completion of investigation regarding the legality of their appointment. By letter no. 536 dated 7.4.2001, the then District Education Officer, Gaya directed the Headmasters of the District of the schools to stop salary of the teachers whose appointments were under scrutiny. Subsequently, however, as submitted by the petitioner, the Regional Deputy Director, Education, Gaya had directed for payment of salary which was made to the petitioner also vide Bill No. 29/2001-02. However, again the salary was stopped pursuant to the letter dated 16.1.2002 of the District Education Officer, Gaya. Subsequently, however, as submitted by the petitioner, the Regional Deputy Director, Education, Gaya had directed for payment of salary which was made to the petitioner also vide Bill No. 29/2001-02. However, again the salary was stopped pursuant to the letter dated 16.1.2002 of the District Education Officer, Gaya. It appears that one of the such affected teachers had approached this Court by filing C.W.J.C. No. 4844 of 2003 which was disposed of with the direction as to the authorities to pay salary to the petitioner forthwith till any action to terminate his services could be taken against him. It appears that the State has moved before the Apex Court against the aforesaid order passed by this Court. However, the same was dismissed with observation that it would be open to the petitioner – State to take appropriate action in the light of the outcome of the criminal prosecution launched against the respondent. 6. Thereafter, it appears that again a decision was taken in connection with about six persons including the petitioner for stopping their salary and also for lodging First Information Report against them. The petitioner approached this Court against the aforesaid order by filing C.W.J.C. No. 8721 of 2003. However, the services of the petitioner was terminated vide order dated 12.11.2003, as contained in Annexure 5, during the pendency of the writ petition and accordingly the petitioner had amended his prayer and challenged the subsequent order. The order impugned was quashed in view of the fact that the same was passed without observing the principle of natural justice. However, the department was granted liberty to proceed afresh against the petitioner and pass appropriate order after following the principle of audi alteram partem. 7. Learned counsel for the petitioner submits that in view of the order of this Court the petitioner filed representation for his reinstatement as contained in Annexure 9. However, Annexure 12 has been passed again terminating his service. 8. A counter affidavit and supplementary counter affidavits have been filed on behalf of the State more or less taking a view that, since the initial appointment of the petitioner itself was fake, there was no requirement of proceeding against him by initiating a full-fledged departmental proceeding. However, it is stated that it is apparent from Annexure 9 itself that the petitioner had filed his representation in view of some letter no. However, it is stated that it is apparent from Annexure 9 itself that the petitioner had filed his representation in view of some letter no. 258 dated 18.4.2007, which was a notice to the petitioner to appear with his explanation. Thereafter, the petitioner had appeared and was granted opportunity of being heard also and, thereafter, the impugned order has been passed. Therefore, it is contended that the principle of natural justice has been followed and, thus, the order cannot be faulted with. 9. Learned counsel for the petitioner has submitted that the moment order of termination was quashed there was no option before the State authorities than to consider him in service and, thereafter, take work and pay salary which was not done by them. It is further submitted that against certain persons, whose services were also under the same transaction, full-fledged departmental proceedings have been initiated. However, the petitioner has been discriminated and his appointment has been brushed aside in a summary type of proceeding. It is next contended that even that order is not in accordance with law for two reasons. First reason would be that without looking into the genuineness of the appointment letter, the authority concerned, after having perused the register etc. has come to the conclusion that the appointment was forged as no appointment letter was found issued from the department after perusal of the concerned register. Learned counsel submitted that this finding is in teeth of the law laid down by the Hon’ble Supreme Court in Subodh Kumar Prasad Vs. The State of Bihar &Ors. [2001(3) PLJR SC 187. The next reason, as submitted by the petitioner, is that the first information report was also lodged on the self same allegation against the petitioner being Khijarsarai P.S. Case No. 95/2003. Subsequently, a Final Form, exonerating the petitioner, was submitted by the prosecution on 8.9.2004 which has been appended as Annexure C. It has clearly been stated in the aforesaid document that the case against the petitioner regarding obtaining appointment by forged means was a mistake of fact. Vide Annexure 8, which is an order dated 6.11.2004 passed by the Chief Judicial Magistrate concerned, it appears that the said Final Form exonerating the petitioner has been accepted by the Court also and the matter has come to an end. Vide Annexure 8, which is an order dated 6.11.2004 passed by the Chief Judicial Magistrate concerned, it appears that the said Final Form exonerating the petitioner has been accepted by the Court also and the matter has come to an end. It is submitted by the petitioner that this fact has been brought to the notice of the concerned respondent which stand reflected in the representation filed by the petitioner also and which also stands reflected in the impugned order itself but no finding has been recorded on this issue as there is no consideration by the concerned respondent authority. Learned counsel has placed reliance upon a decision of this Court rendered in C.W.J.C. No. 6947 of 2005 (Annexure 12 appended with the second supplementary affidavit) in this regard. It is submitted that this Court in the aforesaid case filed by one Vijendra Kumar Mishra, whose services were also in question under the same transaction, has come to the conclusion that since the petitioner has been honorably acquitted in the criminal case by the competent criminal court, the termination order automatically looses its significance so long the judgment of acquittal stands unchallenged and, therefore, the impugned order was set aside. This order was challenged by preferring L.P.A. No. 1311 of 2009 which was dismissed by a Division Bench of this Court, vide its order dated 7.1.2010 (appended as Annexure 13 to the second supplementary affidavit) holding that the order of learned Single Judge quashing the order of dismissal/termination after having been acquitted in the criminal case cannot be faulted with specially when at no point of time a departmental proceeding was initiated against the concerned person. 10. The facts, that a criminal case was lodged against the petitioner and subsequently a Final Form has been submitted by the prosecution in that case exonerating the petitioner finding the case to be a mistake of fact and that Final Form having been accepted by a court of competent jurisdiction, are admitted. 11. It is submitted on behalf of the State that the department decided to proceed against certain persons out of the same transaction after initiating a full-fledged departmental proceeding only as per the direction of this Court passed in the relevant case directing the State authorities to proceed in such manner. However, it is also submitted that the services of those persons have also finally been terminated. However, it is also submitted that the services of those persons have also finally been terminated. Learned counsel for the petitioner points out that they have been terminated on 9.10.2012 only when this Court had directed the learned counsel for the State authorities vide order dated 26.9.2012 to seek fresh instruction on the issue as to whether against the persons from the same transaction the department has taken recourse to full fledged departmental inquiry or not. It is submitted that the same has been done during the pendency of this case only to frustrate the case of the petitioner. 12. However, learned counsel for the State has not been able to satisfy this Court on the issue as to how such type of different recourse could be taken by the State authorities in the cases of different person whose appointments came to be questioned under the same transaction. If they had taken recourse to full-fledged inquiry against some of the employees even in compliance of order of this Court then against the other employees, who were also similarly affected, a similar type of proceeding should have been initiated. Learned counsel has relied upon a decision of the Apex Court holding that if the employees’ initial appointment has been found to be forged he cannot be considered to be a civil servant and in that case the mandatory provision laid down in Article 309 of the Constitution of India is not required to be followed. However, in the present case, when for the self same charges a First Information Report was also lodged against the petitioner and others and the prosecution itself has submitted Final Form before the concerned competent court stating that the allegation of forgery against the petitioner has been found to be a mistake of fact and that Final Form having been accepted by the court of competent jurisdiction, the State authorities could not have proceeded under presumption that the petitioner’s initial appointment was forged and fabricated and terminated his service without initiation of a full-fledged departmental proceeding, only on the basis of examination of registers maintained by the authority itself without giving any chance to the petitioner to contradict or deny such document in a proper proceeding and without testing the genuineness of the appointment letter issued to the petitioner. 13. 13. In above view of the matter, I find force in the submissions raised on behalf of the petitioner. The moment the concerned authority, which was prosecuting a criminal case, had submitted a final form stating that the case of forgery against the petitioner in Khijarsarai P.S. Case No. 95/2003 had been found to be a mistake of fact after investigation and, thus, had exonerated him and such Final Form has been accepted by the court of competent jurisdiction, the criminal case has obviously come to an end. Thus, it is held the concerned respondent authority was duty bound to consider that aspect also. By necessary implication of the aforesaid development, the authority concerned could not have proceeded to declare the appointment of petitioner as forged in the absence of any specific finding recorded in a full – fledged departmental proceeding in view of the decision of the Division Bench of this Court appended as Annexure 13 to the second supplementary affidavit. In my considered opinion, the aforesaid lacuna gives a fatal blow to the order impugned specially as the same has been passed without testing the genuineness of the appointment letter itself as per the mandate of the Apex Court in Subodh Kumar Prasad (supra). 14. Accordingly the impugned orders as contained in Annexures 11 and 12 are quashed and set aside. 15. The respondent authorities are directed to reinstate the petitioner within two weeks from the date of receipt / production of a certified copy of this order. It is also held that, in view of the order dated 2.3.2007 passed in C.W.J.C. No. 8721 of 2003, the petitioner was required to be reinstated and then any proceeding could have been drawn against him contemplating his termination, which admittedly was not done by the authorities the petitioner would be entitled for arrears of salary to be calculated from the date it was stopped as from the aforesaid discussion and the earlier orders passed, it appears that the petitioner was ousted improperly by the office specially when the Apex Court in State of Bihar & Ors. Vs. Vs. Birendra Kumar Singh (Annexure 7), though having been passed with respect to different persons but similarly situated and case arising out of the same transaction, had granted liberty to the petitioner, State of Bihar to take appropriate action in the light of the out-come of the criminal prosecution, if any, launched against the employee. Same principle should have been applied in the case of the petitioner also. Accordingly this writ application stands allowed.