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2014 DIGILAW 769 (JHR)

Durbin Hembrum v. State of Jharkhand

2014-07-18

APARESH KUMAR SINGH

body2014
JUDGMENT : By Court:-Heard counsel for the petitioner and State. 2. Petitioner is aggrieved by the impugned order vide letter no. 372 dated 4.3.2004 (Annexure-19/1) issued by the District Superintendent of Education, Deoghar whereby he has been restrained from working on the post of Assistant Teacher on the ground that his services were terminated by letter no. 4235-60 dated 3.5.1989 since his certificates on the basis of which he was appointed was found to be forged. As per the impugned letter the petitioner had continued in service even thereafter and therefore, the Area Education Officer, Madhupur was directed to immediately stop the petitioner from working who was posted in Primary School, Lathjhari Palajori and also to register an F.I.R against him. 3. Petitioner's case is that he was appointed as a Matric Untrained Teacher vide Annexure-1 dated 20.2.1988 in the category of Scheduled Tribe Male and posted at Kundharo Primary School at Sarath in the newly created unit. He submitted his joining in the office of Block Education Extension Officer, Sarat on 27.2.1988. Immediately after that petitioner became ill and after intimating the Controlling authority he proceeded for medical treatment from 21.9.1988 to 12.11.1993. He however was allowed to join before the District Superintendent of Education, Deoghar after his recovery vide memo no. 384 dated 6.2.1994 and was posted at Singhani Primary School at Sarwan. Petitioner, thereafter, continued to discharge his duties in the said school and was sent for training along with 103 Un-Trained Matric Teachers at District Education Teachers Training Institute, Jasidih, Deoghar upon the direction of Director, Primary Education cum Special Secretary, Bihar vide leter no. 1627 dated 3.9.1997. Pursuant to order contained in memo no. 402-551 Deoghar dated 17.3.1998 issued by the District Education Officer, Deoghar, petitioner was relieved to attend the said training. Petitioner after having undergone the training faced the examination in the year 2002 and his result were also declared by Jharkhand Secondary Examination Board, which is at Annexure-10. Again by the order of the District Superintendent of Education, Deoghar dated 14.7.2001 he was posted at Primary School Latjhari at Palajori where he was last posted when the impugned order was issued. It is stated by the petitioner that he had submitted the appointment letter, service book and other educational certificates before the Block Education Extension Officer, Palajori on his direction dated 13.11.2001. It is stated by the petitioner that he had submitted the appointment letter, service book and other educational certificates before the Block Education Extension Officer, Palajori on his direction dated 13.11.2001. Thereafter, petitioner's salary was withheld for certain period from January 2002 and his certificates were submitted before the Sub Divisional Education Officer through letter dated 13.11.2003. During all these period his salary was withheld till the impugned order was issued on 4.3.2004 by the District Superintendent of Education. 4. Learned counsel for the petitioner points out to the office order dated 5.11.2003(Annexure-15) where under the District Superintendent of Education, Deoghar after having inquired into the matter had revoked the office order dated 5.1.2002 by which his salary was withheld. By the said order dated 5.11.2003 it was also held that none of the charge against the petitioner prima facie were found to be established on the issue of educational and teachers training qualification. In the aforesaid factual background, the impugned order has been assailed on behalf of the petitioner on the following grounds:- (i) He was appointed as Un-Trained Teacher and after his rejoining upon recovery from illness, while he was posted at Primary School, Singhani at Sarwa, he was sent for training at the Government Teachers Training Institute, Jasidih, Deoghar and therefore the whole ground that he obtained appointment as a Matric Trained Teacher on the basis of forged certificates is factually without foundation. (ii) It is submitted that the respondents have miserably failed to bring on record any such order of termination said to have been passed upon verification of the certificates produced during his appointment except the copy of the dispatch register showing the dispatch letter no. 4233-60 dated 3.5.1989. (iii) It is submitted that the teachers who were also appointed by the said appointment letter annexed as Annexure-1 were also sent for training like the petitioner. Name of Shyam Sunder Murmu and Varan Soren who were appointed by same order dated 20.2.1988(Annexure-1) were also sent for training vide order at Annexure-8 dated 17.3.1998 by which petitioner and others were sent for teachers training. Therefore, the respondents are not correct in stating that petitioner got appointment as Matric Trained Teacher on the basis of forged documents. Name of Shyam Sunder Murmu and Varan Soren who were appointed by same order dated 20.2.1988(Annexure-1) were also sent for training vide order at Annexure-8 dated 17.3.1998 by which petitioner and others were sent for teachers training. Therefore, the respondents are not correct in stating that petitioner got appointment as Matric Trained Teacher on the basis of forged documents. (iv) Learned counsel for the petitioner also submits that during the course of the proceeding of the case earlier upon direction of the Court his Matric certificate was sent to Bihar School Examination Board and as per the supplementary counter affidavit filed by the respondents themselves on 14.7.2014, the same has been found to be genuine and authentic document upon verification. (v) It is submitted that the petitioner who was continuing in service for more than 11 years since his rejoining in 1993 has been in effect terminated, without any issuance of show cause notice or any departmental inquiry against the petitioner by the impugned order. (vi) The basis for issuance of the impugned order being absent, the service of the petitioner could not have been terminated in such an arbitrary and unreasonable manner. In support of the aforesaid fact learned counsel for the petitioner has referred to the order dated 22.8.2006 whereby respondents were directed to produce the copy of the original order of termination allegedly passed on 3.5.1989 before this Court on the next date of hearing which they have never produced. (vii) It is further submitted that none of the other 5 persons whose name also figured in the dispatch register on 3.5.1989 have been dismissed from service. In the wake of aforesaid facts and submission, the impugned order has been assailed as being wholly arbitrary and amounting to an illegal termination of his service without following the requirement of law or any disciplinary proceeding. 5. Respondent- State have filed counter affidavits one after the other. The stand of the respondents in sum and substance is that the petitioner got appointed as Matric Trained Teacher on the basis of forged and fabricated certificates, and upon verification thereof was dismissed from service vide letter no. 4233-60 dated 3.5.1989. Petitioner allegedly went on leave for a considerable period from 1989-1994 and thereafter again submitted his joining in connivance with the Sub Divisional Education Officer, Deoghar. 4233-60 dated 3.5.1989. Petitioner allegedly went on leave for a considerable period from 1989-1994 and thereafter again submitted his joining in connivance with the Sub Divisional Education Officer, Deoghar. He continued in service, though he had been terminated in the year 1989 and these facts being brought to the notice of the respondents, inquiry were also made from the petitioner through letter dated 13.11.2001 issued by the District Superintendent of Education. Thereafter, the Deputy Commissioner directed to enquire further in the matter through letter dated 18.12.2003. Petitioner was also issued show cause since it was found that the petitioner's services were terminated way back in 1989 itself. As he had continued unauthorizedly on the post of Assistant Teacher, impugned order had been issued to debar the petitioner from discharging his duties any further. Further statement has been made in the subsequent counter affidavit by the respondents filed on 6.4.2010 enclosing the report of the In-charge Deputy Collector under the Office of Deputy Commissioner, Deoghar prepared in May 1994 in which on the basis of allegations made by the President and Secretary of the Teachers' Association it has been recorded that petitioner and one Chintamani Mandal had got appointment on the basis of forged certificate. Further reference has been made to the letter dated 23.7.1990 of the District Superintendent of Education addressed to the Deputy Commissioner, Deoghar, Annexure-D to the counter affidavit as per which upon verification from the Bihar School Examination Board the certificate of the petitioner and few other teachers were found to be forged and directions were issued to take steps for termination of their service and also for institution of F.I.R. 6. The last affidavit has been filed by the respondents on 14.7.2014 i.e., upon verification of the matric certificate of the petitioner from Bihar School Examination Board as per which the petitioner's matriculation certificate has been found to be genuine. The said report is Annexure-C dated 3.7.2014 issued by the Deputy Secretary (Vigilance) B.S.E.B and addressed to the District Superintendent of Education, Deoghar showing the petitioner's roll code as 2501, roll no. 94 , date of birth as 4.6.1951 and year of passing is 1971. The Supplementary Secondary School Examination certificate is annexed as Annexure 22/1 to the supplementary affidavit filed by the petitioner on 6.1.2014. 94 , date of birth as 4.6.1951 and year of passing is 1971. The Supplementary Secondary School Examination certificate is annexed as Annexure 22/1 to the supplementary affidavit filed by the petitioner on 6.1.2014. The respondents in the last supplementary counter affidavit have again enclosed the extract of the dispatch register dated 3.5.1989 and also the appointment letter of the petitioner dated 20.2.1988 showing him as Matric Trained Teacher. Annexure-D dated 17.6.2004 is also to the effect that petitioner was terminated on 3.5.1989 7. Upon perusal of the materials on record and after going through the pleadings of the respective parties there are few distinct features which have emerged and are to be indicated at the outset. Though the letter of appointment at Annexure-1 dated 20.2.1988 shows that the persons named in the list were appointed as Matric Trained Teachers in Primary School in the scale of Rs.580-860 on purely temporary basis but it also evident from the office order dated 17.3.1998 issued by the District Superintendent of Education, Deoghar, Annexure-8 that in the list of total 104 such teachers being sent for Teachers training in the Government Training College at Jasidih, Deoghar, apart from the name of the petitioner, the names of two other persons namely Shyam Sunder Murmu and Varan Soren who were also appointed pursuant to the letter at Annexure-1 at Primary School, Koldih, Karo and Sarath respectively and had submitted their joining on 1.3.1988 pursuant there to, were also sent for training. The stand of the respondents all through out has been that under the said appointment letter Matric Trained Teachers were appointed and petitioner got such appointment on the basis of forged certificates which was the reason for his termination upon verification. If the petitioner was trained teacher then there was no occasion for sending him for training and not only the petitioner other appointees under the same list were also sent for teachers training as aforesaid. The other distinctive feature of the case is that despite direction passed by this Court earlier dated 22.8.2006, no such order of termination of the petitioner has been produced by the respondents. A plea has been taken on their behalf that the entire record of the said appointment has been destroyed. 8. The other distinctive feature of the case is that despite direction passed by this Court earlier dated 22.8.2006, no such order of termination of the petitioner has been produced by the respondents. A plea has been taken on their behalf that the entire record of the said appointment has been destroyed. 8. On the other hand letter of 23.7.1990, Annexure-D to the counter affidavit dated 6.4.2010 issued by the District Superintendent of Education, Deoghar shows that certificates of some of the teachers who had obtained appointment in 1988 were verified by the B.S.E.B and were found to have been forged. The name of the petitioner occurred along with few other in the said list. However the said letter indicates that salary of some of these teachers be stopped and steps be taken for termination of their service in accordance with law and also for institution of F.I.R. It is therefore, evident that on 23.7.1990 while issuing the said letter the District Superintendent of Education was unaware of any order of termination of the petitioner or others whose certificates were found to be forged upon verification. The entire case of the respondents rest on the foundation that petitioner's services were terminated on 3.5.1989 and that too only on the basis of the entry made in the dispatch register. When these facts were earlier noticed by this Court petitioner was asked to submit his original matriculation certificate for verification. The said certificate on verification admittedly has been found to be genuine and authentic as per the letter of the B.S.E.B annexed to the supplementary counter affidavit of the respondents filed on 14.7.2014. 9. In the wake of these explicit features of the case, it is also true that petitioner continued in service till 2004 when the impugned order has been issued. Learned counsel for the petitioner has at the same time categorically stated that none of the persons except the petitioner whose names are reflected in the dispatch register entry on 3.5.1989 have been dismissed from service by the respondents. They have continued in service or have retired, one of them has died. These facts therefore, also indicate that after initial appointment of the petitioner in 1988, there are no documentary evidence of the termination of the petitioner services apart from the extract of dispatch register. They have continued in service or have retired, one of them has died. These facts therefore, also indicate that after initial appointment of the petitioner in 1988, there are no documentary evidence of the termination of the petitioner services apart from the extract of dispatch register. Petitioner's appointment continued till 2004 and admittedly no proceedings were initiated against him for the alleged misconduct of having procured appointment on the basis of forged certificate before the impugned order was issued which is a necessary requirement of law. 10. On the other hand the office order issued by the District Superintendent of Education, Deoghar dated 5.11.2003(Annexure-15) shows that upon verification of the certificate and other educational qualification of the petitioner, on 16.10.2003 and 1.11.2003 no such charge were prima facie established against the petitioner which was the reason for withholding of the salary earlier. Therefore, the order of withholding of salary dated 5.1.2002 was revoked with a direction to pay the regular as well as arrears of salary to the petitioner. The aforesaid narration of facts and materials discussed herein above therefore lead to a conclusion that the impugned order dated 4.3.2004 preventing the petitioner from discharging the duties has been issued on the basis of alleged non existent termination letter dated 3.5.1989 without any proper inquiry and giving adequate opportunity to the petitioner. If the respondents decided to terminate the petitioner's appointment after continuing in employment till 2004 since his initial appointment, the minimum requirement of law was to comply with the Principles of Natural Justice upon a proper enquiry where guilt or innocence could be arrived at in accordance with law. 11. When the charge of serious nature like forgery or fraud is made, even though the case is not criminal cause or matter, the existence of such facts will be required to be established not merely on the balance of probabilities but much more serious standard of proof given the seriousness of charge. 11. When the charge of serious nature like forgery or fraud is made, even though the case is not criminal cause or matter, the existence of such facts will be required to be established not merely on the balance of probabilities but much more serious standard of proof given the seriousness of charge. The celebrated author Francis Bennion in his treatise “Bennion on Statutory Interpretation” in the chapter “Principle Against Doubtful Penalization” under Part XVII of the 5th Edition had the following opinion on the standard of proof when a serious detriment is to be inflicted on a person :- “Standard of proof :- Where an enactment would inflict a serious detriment on a person if certain facts were established then, even though the case is not a criminal cause or matter, the criminal standard of proof will be required to establish those facts, that is their existence will not be taken to be proved merely on a balance of probabilities. Proof must be beyond reasonable doubt, so that anyone testing it would feel sure. 12. The Hon'ble Supreme Court in the case of Union of India & ors. Vs. Gyan Chand Chattar, reported in 2009(12) SCC 78 while considering the issue in respect of dismissal from service of the respondent-employee in a departmental enquiry on a serious charge of bribery held that strict adherence to statutory principle and natural justice are essential. The Hon'ble Supreme Court in the said case observed that a serious charge of corruption requires to be proved to the hilt as it bring civil and criminal consequences upon the employee concerned. The opinion of the Hon'ble Supreme Court as contained in para 21 of the said judgment is quoted hereunder: “21. Such a serious charge of corruption requires to be proved to the hilt as it brings civil and criminal consequences upon the employee concerned. He would be liable to be prosecuted and would also be liable to suffer severest penalty awardable in such cases. Therefore, such a grave charge of quasi – criminal nature was required to be proved beyond any shadow of doubt and to the hilt. He would be liable to be prosecuted and would also be liable to suffer severest penalty awardable in such cases. Therefore, such a grave charge of quasi – criminal nature was required to be proved beyond any shadow of doubt and to the hilt. It cannot be proved on mere probabilities.” In the instant case by the impugned order the petitioner has been debarred from discharging his duties on the alleged ground that he had obtained appointment on the basis of a forged certificate and that his appointment was terminated on 3rd May,1989 itself. However, as has been noticed hereinabove, the alleged termination was on the basis of a non-existent letter and without any proper enquiry and giving opportunity to the petitioner either though he continued to discharge his duty till issuance of the impugned order on 4th March,2004. If such a charge was made against the petitioner, it ought to have been established by the respondents at least by producing cogent materials in its support and that too after giving due opportunity to the petitioner which the respondents have failed to observe. In such circumstances, the impugned order dated 4.3.2004 cannot survive in the eye of law and accordingly, it is quashed. 13. Learned counsel for the petitioner submits that the petitioner has reached the age of superannuation on 3.6.2011 after attaining the age of 60 years. His arrears of salary for the period from December 2001 till the issuance of impugned order are outstanding and he would also be entitled to the back wages for the period he was compelled to remain out of service on account of issuance of the impugned order. 14. Having regard to the facts and circumstances of the case, since the petitioner had continued to discharge his duties till the issuance of the impugned order, the respondents would pay the arrears of salary due to him till the issuance of the impugned order i.e. 4.3.2004. However, since the petitioner has not discharged his duties for the period after issuance of the impugned order till he attained the age of superannuation i.e. on 3.6.2011, interest of justice would be served if the petitioner is paid 50% of the back wages for the said period. However, since the petitioner has not discharged his duties for the period after issuance of the impugned order till he attained the age of superannuation i.e. on 3.6.2011, interest of justice would be served if the petitioner is paid 50% of the back wages for the said period. Since the petitioner has already attained the age of superannuation, it would be futile to allow the respondents once again to initiate any proceeding against the petitioner for the said event which alleged to have been occurred in 1989 and which otherwise also do not stand established on the basis of concrete materials and facts. The respondents would process the claim of the petitioner for the admissible post retirement dues and other service dues in accordance with law within a reasonable time. 15. The writ petition is allowed in the aforesaid manner.