Sudhir Kumar Mishra, son of Sri Dayanand Mishra v. State of Jharkhand
2016-06-20
SHREE CHANDRASHEKHAR, VIRENDER SINGH
body2016
DigiLaw.ai
JUDGMENT : Virender Singh, J. Whether the service of an employee, after 20 year of service, can be terminated without a show-cause notice and without holding a departmental enquiry, are the issues calling for determination by the Court in the present proceeding. 2. The case pleaded by the appellant writ petitioner (hereinafter to be referred as "petitioner") is that, pursuant to a notice he submitted his application for appointment on a Class IV post where after, the interview letter dated 04.08.1990 was issued to him. The petitioner appeared in the office of the District Education Officer, Palamau on 13.08.1990 and submitted his educational and other certificates. Thereafter, he was interviewed by the District Education Establishment Committee, Palamau which selected him for appointment on a Class IV post in Project Girls High School. An appointment letter was issued to the petitioner vide memo dated 03.09.1999 which discloses that he was appointed in Project Girls High School, Bhandaria in pay-scale of Rs. 775-12-955-14-1025. The petitioner gave his joining in the said school on 05.09.1990. He was transferred to another school on 08.07.1993 where he gave his joining on 22.07.1993. It is stated that the petitioner was granted increment w.e.f. 05.09.1993 and his pay was fixed @ Rs. 811. The petitioner's pay was revised in the scale of Rs. 2550-55-2660-60-3200 and his pay was fixed @ Rs. 2605 effective from 01.01.1996. On 6th Pay Revision coming into force in the State of Jharkhand vide Resolution dated 28.02.2009, the petitioner's pay was revised in the pay-scale of Rs. 4440-7440 in the Grade Pay of Rs. 1300 and the basic pay of the petitioner was fixed @ Rs. 6810 as on 01.01.2006. More than 10 years after his appointment, a show-cause notice dated 23.01.2001 was issued to the petitioner stating that on enquiry his appointment has been found irregular. In response to the said show-cause notice, the petitioner submitted his reply and the Headmaster of the school also sent appointment letter and service-book of the petitioner to the District Education Officer. Now, 10 years thereafter, the service of the petitioner was terminated vide office order dated 13.04.2010, aggrieve thereof, the petitioner approached the Writ Court however, unsuccessfully. 3. Heard. 4. Mr. Manoj Tandon, the learned counsel for the petitioner, reiterating the stand taken before the Writ Court, submits that the order of termination dated 13.04.2010 was issued without any show-cause notice to the petitioner.
3. Heard. 4. Mr. Manoj Tandon, the learned counsel for the petitioner, reiterating the stand taken before the Writ Court, submits that the order of termination dated 13.04.2010 was issued without any show-cause notice to the petitioner. The earlier show-cause notice dated 23.01.2001 was replied by the petitioner and the service record of the petitioner was forwarded by the Headmaster to the District Education Officer and no adverse order was passed against the petitioner, the consequence whereof is that, the petitioner understood that his explanation was accepted by the concerned authority and therefore, before the impugned order dated 13.04.2010 terminating the petitioner's service was passed, a show-cause notice was required to be given to him. Moreover, a regular departmental proceeding was required to be initiated before the petitioner can be terminated from service. Distinguishing the judgment in "Devendra Kumar v. State of Uttaranchal & Ors.", 2013 (4) JCR 154 (SC) : (2013) 9 SCC 363 , the learned counsel submits that, that was a case of a probationer whereas, the petitioner has served for more than 20 years. 5. Mr. Shadab Bin Haque, the learned counsel for the respondent-State of Jharkhand submits that a joint enquiry was conducted in the matter and it was found that the appointment letter produced by the petitioner is forged. Thereafter, in the meeting of the District Education Establishment Committee held on 07.04.2010, a decision was taken to terminate the petitioner from the services and consequently, impugned order dated 13.04.2010 has been passed. It is further submitted that another employee who was also appointed in a similar manner has also been dismissed from service and the writ petition preferred by him has failed. 6. Having considered the rival submissions, in our considered opinion, the issue involved in the present case can be decided without adjudicating the factual aspect of the case. On admitted facts, it is apparent that no show-cause notice was issued to the petitioner. In "State of Orissa v. (Miss) Binapani Dei ( AIR 1967 SC 1269 )" expanding the scope of the rules of natural justice, the Hon'ble Supreme Court held that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The expression "civil consequence" covers infraction of property and personal rights besides, material deprivations and non-pecuniary damages.
The expression "civil consequence" covers infraction of property and personal rights besides, material deprivations and non-pecuniary damages. The principles of natural justice are thus, rules which have been read by the courts as being the minimum protection of the rights of the individual against arbitrary procedure that may be adopted by a judicial, non-judicial and administrative authority while making an order affecting those rights. In the celebrated case of "Cooper v. Wandsworth Board of Works" [(1863) 143 ER 414] the principle was thus stated : "Even God himself did not pass sentence upon Adam before he was called upon to make his defence". Since then the principles of natural justice have been chiselled, honed and refined, enriching its content. The Hon'ble Supreme Court has observed that the judicial treatment has added light and luminosity to the concept, like polishing of a diamond. In "Canara Bank v. Debasis Das", 2004 (2) JCR 16 (SC) : (2003) 4 SCC 557 , the Hon'ble Supreme Court has observed; "the adherence to principles of natural justice as recognised by all civilised States is of supreme importance when a quasi judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue." 7. The petitioner has brought materials on record including his service-book which discloses that after his appointment he was granted increment. The orders whereby the petitioner's pay-scale was revised have also been brought on record. The petitioner has claimed that he was regularly appointed on Class IV post and he continued in service for about 20 years. In this view of the matter, a show-cause notice was imperative and on this count alone the impugned order dated 13.04.2010 suffers from serious infirmity in law. 8. It is also not denied that a copy of the enquiry report which was submitted on joint inspection was not served upon the petitioner. In "Executive Committee, U.P. Warehousing Corporation v. Chandra Kiran Tyagi" (1969) 2 SCC 838 , the Hon'ble Supreme Court held the enquiry proceeding vitiated because the enquiry officer collected information from outside source and utilised the same in his findings recorded against the delinquent officer without disclosing that information to the officer. A copy of the enquiry report was not served upon the petitioner is again an admitted fact.
A copy of the enquiry report was not served upon the petitioner is again an admitted fact. The impugned order has been passed on the basis of the findings recorded in the enquiry report and therefore, a copy of the said report should have been served upon the petitioner. 9. Whether regular departmental enquiry should have been conducted in the matter or not, is another issue involved in the present petition. The service-book of the petitioner records that he was a confirmed employee, may be his initial appointment was obtained by playing fraud. But then, whether documents produced by the petitioner were genuine or not, in view of the serious allegation of forgery and considering the period of service, in our considered view, the petitioner should have been issued a charge-memo followed by the domestic enquiry. No doubt, in cases where show-cause notice would be a mere formality and on admitted documents it can be concluded that the appointment was illegal, for example in a case where the appointee lacks mandatory qualification, the rules of natural justice need not be followed. However, in the present case, the petitioner was entitled to the benefits of the safeguards under Article 311 of the Constitution of India. 10. The cumulative effect of the aforesaid infirmity borne from the record of the case is that, the impugned order dated 13.04.2010 requires interference by the Court and is hereby quashed. However, in view of the nature of allegations levelled against the petitioner and the position taken by the respondents that during enquiry the petitioner's appointment letter has been found forged, we refrain from directing reinstatement of the petitioner till the regular domestic enquiry concludes. At this stage, we make it clear that if the petitioner is finally found validly appointed, he shall be entitled for back wages from 13.04.2010 till his reinstatement. 11. The instant Letters Patent Appeal stands allowed, in the aforesaid terms. Appeal allowed.