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2014 DIGILAW 994 (JHR)

Shiblal Rai v. State of Jharkhand

2014-09-19

APARESH KUMAR SINGH

body2014
JUDGMENT APARESH KUMAR SINGH, J. 1. Heard learned counsel for the parties. 2. The petitioner entered in the service on 23.11.1985 as an Assistant Teacher in Middle School, Hesla, Bagodar as per appointment letter at Annexure-6, issued by the District Superintendent of Education, Giridih. The appointment letter was issued on the basis of the decision of an Appointment Committee. The appointment of the petitioner was made on the basis of a certificate of Madhyama, issued by the Kameshwar Singh Darbhanga Sanskrit University vide Annexure-2 dated 16.1.1990. The petitioner is said to have passed the said examination which is equivalent to Matriculation Examination in the year 1973 and his date of birth was mentioned as 26.6.1954. The petitioner also appeared in the Teachers Training Examination in the Session 1975-77 conducted by the Bihar School Examination Board, Patna. The mark sheet thereof is enclosed as Annexure-5 dated 29.6.1989. He is also said to have passed the Intermediate of Arts Examination from the Ranchi University conducted in June 1975 as per the certificate at Annexure-16 to his supplementary affidavit. The said certificate of Intermediate of Arts and the mark sheet were, filed pursuant to an order dated 31.10.2012 passed in the instant case. The petitioner continued to serve as an Assistant Teacher. The petitioner was served with a notice to produce certain papers relating to his appointment and educational qualification through Letter No. 99 dated 16.6.2007 (Annexure-8), issued by the Range Education Officer, Dhanwar, Giridih. The petitioner was asked to submit his show cause reply through the letter dated 18.9.2009 on the allegation that he has a different date of birth i.e. 20.1.1940 as shown in the Matriculation examination conducted in the year 1960-61 in Rajya Samposhit Uchcha Vidyalaya, Dhanwar, Giridh. It appears that an allegation was made by one Rohit Kumar Rai, son of late Gayo Rai of Village Karmatand, P.S. -Doranda Dhanwar, Giridih against the petitioner addressed to the Deputy Commissioner, Giridih that the petitioner had misled the authorities in showing his date of birth as 20.6.1954 and got appointment as an Assistant Teacher, whereas from the records of the Government Rajya Samposhit Uchcha Vidyalaya, Dhanwar, Giridh, it would appear that the petitioner had appeared in the Matriculation examination in the year 1961-62 and had passed the same in third division, where his date of birth was mentioned as 20.1.1940. The petitioner furnished his show cause reply as per Annexure-9 to the writ petition before the District Superintendent of Education, Giridih on 7.10.2009. The petitioner took various pleas such as (i) that the certificate of Madhyama issued on 16.1.1990 shows that he had passed the said exam in 1973, wherein his date of birth was mentioned as 26.6.1954. (ii) He obtained the Intermediate of Arts certificate from Ranchi University in June 1975. (iii) He obtained the Teachers Training Certificate from the Bihar School Examination Board on 29.6.1989 showing that he had passed this examination in 1977. All the testimonials including the educational certificates, which was produced at the time of appointment was verified and after his appointment, his service book was opened in which his date of birth was mentioned as 26.6.1954. There has been no interpolation or forgery or manipulation anywhere in the service book. None of the service records or certificates produced by the petitioner has been found to be forged or fabricated. The allegation has been made by one Rohit Kumar Rai, who is his full cousin brother being the son of one Gayo Rai, who is the third brother of his father late Talo Rai. There was serious land dispute between the complainant and the family members of the petitioner and in Title Appeal No. 26 of 2006, pending before the Court of learned District Judge, Giridih, he as well as his son was also a party. He further raised the plea that no departmental proceeding nor any allegation was initiated or levelled against him in the past and his service record is blemish free. Further reference has been made to an Identity Card issued by the Election Commission, showing his age as 52 years while the age of his elder brother is 54 years. Therefore, it was pleaded on his part that the entire allegations are based on personal animosity between his family and Rohit Kumar Rai on account of a pending land dispute between them. However, the respondents-District Superintendent of Education, Giridih has passed the order of termination of the petitioners service on 18.8.2011 (Annexure-11), which is impugned herein, on the ground that he had procured appointment on the basis of a certificate showing his different date of birth. However, the respondents-District Superintendent of Education, Giridih has passed the order of termination of the petitioners service on 18.8.2011 (Annexure-11), which is impugned herein, on the ground that he had procured appointment on the basis of a certificate showing his different date of birth. As per the enquiry report conducted through the Headmaster of the said High School and the materials procured during the course of enquiry, it was found that the petitioner's date of birth was 20.1.1940. Therefore, the services of the petitioner were terminated, as he had indulged in manipulation of his date of birth. It was further stated that the petitioner did not answer to the show cause notices issued to him one after other. 3. In the background of the aforesaid facts, learned counsel for the petitioner has submitted that the order of termination is in the teeth of the Bihar State Nationalized Elementary School Teachers (Transfer and Disciplinary Action) Rules, 1994. According to learned counsel for the petitioner, for impositi0n of a major punishment of dismissal from service like the present one, the departmental proceeding is mandatory, which has not been followed in the instant case, though the petitioner had remained in service for 24 years and was confirmed in service. It is, therefore, submitted that the impugned order has been passed in total violation of the principle of natural justice without establishment of misconduct or guilt against the petitioner in a duly constituted departmental proceeding. The impugned order has also been challenged as a non-speaking order. 4. According to learned counsel for the respondents, the petitioner had got appointment on the basis of a certificate of Kameshwar Singh Darbhanga Sanskrit University on having passed Madhyama Examination from Sanskrit High School, Jharkhand Dham, conducted in the year 1973, which mentioned his date of birth as 26.6.1954, whereas in the year 1961-62, the petitioner appeared in Matriculation Examination from Dhanwar High School conducted by the Bihar School Examination Board, Patna in which his date of birth was recorded as 20.1.1940. Since the Matriculation certificate is the conclusive proof of the date of birth of a person, the petitioner was issued three show cause notices to reply to the allegations. Since the Matriculation certificate is the conclusive proof of the date of birth of a person, the petitioner was issued three show cause notices to reply to the allegations. The petitioner, however, completely failed to rebut the charges that he had not appeared or passed the Matriculation examination, as alleged, in 1960-61 from the said school and that his date of birth was 20.1.1940 as recorded in the mark-sheet, corrected result of the Matriculation examination. The petitioner had therefore concealed his real date of birth mentioned in the High School admission register as well as in the certificate of Matriculation and got his date of birth recorded in the service book as 26.6.1954, which is wrong and baseless. The misdeeds of the petitioner were brought to the notice of the respondents-authorities by one Rohit Kumar Rai, who was his relative and upon proper enquiry from the school and after determination of the aforesaid facts, the impugned order has been issued after giving due opportunity to the petitioner. The impugned order does not suffer from any infirmity or is not violative of the principle of natural justice. 5. From the facts on record as noted hereinabove and upon hearing the submissions of the parties, in the first place it is to be noted that the petitioner entered into employment on the basis of a certificate of the Kameshwar Singh Darbhanga University of having passed Madhyama Examination in the year 1973, where his date of birth was recorded as 26.6.1954. The appointment letter also indicated that if the petitioner's certificates were found to be forged and fabricated, his appointment would be cancelled at any point of time. Apparently upon satisfaction of the respondents-authorities in respect of the educational certificates produced by him, the service-book of the petitioner was opened and he continued in employment for 24 long years before the instant show cause notice was issued with the allegations that he had procured the employment by making false representation of a different date of birth, Admittedly, no departmental proceeding was initiated, though the allegations were in the nature of a misconduct, which if proved, would have been sufficient to impose the punishment of dismissal from service as contemplated under 1994 Rules, The respondents appeared to have conducted an enquiry through the school on their own and then asked the petitioner to submit his reply to the same. The petitioner in that sense never got an opportunity as contemplated in a departmental enquiry i.e. quasi judicial proceeding to rebut the charges after due opportunity of producing evidence in his support and also opportunity to discredit any witness produced by the prosecution to establish the said charges. The petitioner never got any opportunity to cross-examine any witness, who could have established the allegations against the petitioner of having indulged in procuring employment by producing a certificate of Madhyama other than the Matriculation certificate, as alleged. 6. It is well settled that an employee serving under the State Government and holding a civil post is entitled to the protection guaranteed under Articles 311 of the Constitution of India. There is a security of tenure attached to the employment, which can be taken away by establishing charges of misconduct in the manner as contemplated under Article 311 (2) of the Constitution of India after giving due opportunity to the delinquent employee. The petitioner admittedly had remained in service for 24 years. Though the complainant was a close cousin of the petitioner, but no such allegations were made against the petitioner for 24 long years since he had entered in service in the year 1985. In any case the respondents were required to initiate a departmental proceeding for coming to the finding of a guilt of such a serious nature, as alleged against the petitioner after he had remained in service for all along 24 years. It is trite to say that a departmental proceeding is initiated for allegations of a guilt or misconduct against a delinquent employee, both the parties i.e. the prosecution and the delinquent employee are given adequate opportunity to establish the charges and/or to rebut the same on the basis of available materials and evidences produced on the part of the other parties. All aspects of the matter are thrashed, if such an opportunity is given to a delinquent. That is the underlying reason as to why before imposing such a punishment of dismissal from service or termination in the nature inflicted upon the petitioner, the requirement as contemplated under Article 311 of the Constitution of India has been provided for. All aspects of the matter are thrashed, if such an opportunity is given to a delinquent. That is the underlying reason as to why before imposing such a punishment of dismissal from service or termination in the nature inflicted upon the petitioner, the requirement as contemplated under Article 311 of the Constitution of India has been provided for. In the instant case, however, it appears that the respondents have only after giving show cause notice and without initiation of any departmental proceeding or finding of guilt thereupon, proceeded to terminate the service of the petitioner with immediate effect by the impugned order dated 18.8.2011 passed by the District Superintendent of Education, Garhwa. The petitioner is said to have reached the age of superannuation on 30.6.2014, during pendency of the writ petition. 7. Learned counsel for the petitioner has relied upon a judgment rendered by the Supreme Court in the case of Union of India vs. Harnam Singh, AIR 1993 SC 1367 , in order to submit that such entries made in the service record of a civil servant specifically in relation to the date of birth are of utmost importance and he has a right to continue in service as per the said entry. 8. Learned counsel for the petitioner has further relied upon a judgment rendered by the Supreme Court in the case of Kamal Nayan Mishra vs. State of Madhya Pradesh & Others, (2010) 2 SCC 169 . The relevant Paragraphs 15, 16, 17 & 18 of the said judgment are reproduced herein-below:- "15. A confirmed Government servant is the holder of a civil post entitled to the benefits of the safeguards provided by Article 311 of the Constitution. On the other hand, a probationer does not have any substantive right to hold the post, and is not entitled to the protection under Article 311. A probationer's services can be dispensed with during the period of probation, or at the end of the probation period, if his service is found to be unsatisfactory or if he is found to be unfit for appointment. 16. In Ajit Singh vs. State of Punjab, this Court explained why termination of a probationer is permissible without an inquiry:- "7. A probationer's services can be dispensed with during the period of probation, or at the end of the probation period, if his service is found to be unsatisfactory or if he is found to be unfit for appointment. 16. In Ajit Singh vs. State of Punjab, this Court explained why termination of a probationer is permissible without an inquiry:- "7. If a servant could not be removed by way of punishment from service unless he is given an opportunity to meet the allegations if any against him which necessitates his removal from service, rules of natural justice postulate an enquiry into the allegations and proof thereof. This developing master-servant relationship puts the master on guard. In order that an incompetent or inefficient servant is not foisted upon him because the charge of incompetence or inefficiency is easy to make but difficult to prove, concept of probation was devised. To guard against errors of human judgment in selecting suitable personnel for service, the new recruit was put on test for a period before he is absorbed in service or gets a right to the post. Period of probation gave a sort of locus pententiae to the employer to observe the work, ability, efficiency, sincerity and competence of the servant and if he is found not suitable for the post, the master reserved a right to dispense with his service without anything more during or at the end of the prescribed period which is styled as period of probation. Viewed from this aspect, the courts held that termination of service of a probationer during or at the end of a period of probation will not ordinarily and by itself be a punishment because the servant so appointed has no right to continue to hold such a post any more than a servant employed on probation by a private employer is entitled to (See – Parshotam Lal Dhingra vs. Union of India). The period of probation therefore furnishes a valuable opportunity to the master to closely observe the work of the probationer and by the time the period of probation expires to make up his mind whether to retain the servant by absorbing him in regular service or dispense with his service." 17. The period of probation therefore furnishes a valuable opportunity to the master to closely observe the work of the probationer and by the time the period of probation expires to make up his mind whether to retain the servant by absorbing him in regular service or dispense with his service." 17. Ram Ratan Yadav held that the services of a probationer who gave wrong information in regard to material particulars having a bearing on his fitness or suitability for appointment, can be terminated without giving any opportunity to show cause against the proposed termination. But once a probationer is confirmed in the post, his position and status become different as he gets the protection of Article 311. If it is found that the Government servant who is the holder of a civil post, has given any false information during the course of employment, that will have to be treated as a misconduct, and punishment can be imposed only after subjecting him to an appropriate disciplinary proceedings as per the relevant service rules. 18. There are also several other features in this case which distinguish it from Ram Ratan Yadav. First is that Ram Ratan Yadav related to an employee of Kendriya Vidyalaya Sangathan, who did not have the protection of Article 311 of the Constitution of India, whereas in this case we are concerned with a Government servant protected by Article 311. Second is that the attestation form in this case, was required to be furnished by the employee, not when he was appointed, but after fourteen years of service. The third is that while action was promptly taken against the probationer in Ram Ratan Yadav, within the period of probation, in this case even after knowing that the appellant had furnished wrong information, the respondents did not take any action for seven long years, which indicated that the department proceeded for a long time on the assumption that the wrong information did not call for any disciplinary or punitive action. The belated decision to terminate him, seven years later was unjustified and violative of Article 311." 9. The belated decision to terminate him, seven years later was unjustified and violative of Article 311." 9. In the facts of the instant case, given the seriousness of allegation made and the fact that the present petitioner had continued in service for 24 years since his appointment in 1985, respondents ought to have initiated a proper departmental proceeding to arrive at a decision on the guilt or misconduct of the petitioner after due observance of the principles of natural justice. However, as has been found in the present case, the decision to terminate his services has been taken on 18.8.2011, Annexure-11 by the District Superintendent of Education, Giridih on the basis of enquiry conducted behind the back of the petitioner and only after issuance of show cause notice upon him. 10. In such circumstance, the impugned order terminating the petitioner's services cannot be sustained in the eye of law and it is, accordingly, quashed. 11. The petitioner, however, seems to have retired from service in the meantime on 30.6.2014 on attaining the age of 60 years. Considering all the aspects of the matter, therefore the petitioner would be entitled to only 25% of the back wages. However, the respondents are at liberty to take a decision afresh in accordance with law after due compliance of the principle of natural justice. 12. The writ petition is allowed in the manner indicated above.