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2017 DIGILAW 1470 (JHR)

Bal Govind Prasad Sinha v. State of Jharkhand

2017-08-18

ANANDA SEN

body2017
JUDGMENT : Heard Mr. Rahul Kumar, at length who is appearing on behalf of the petitioner. 2. No one appears on behalf of the State. 3. The petitioner, in this writ application, has prayed for a direction upon the respondents to release the due salary in his favour which has not been paid to him from August, 2007 onwards. 4. The petitioner claimed that he was initially appointed as an Assistant in the year 1982 in the Leprosy Unit, Chas, in the district of Bokaro. He submits that his service was confirmed and his service book was also opened. He was sent for training also. He submits that he was transferred from Chas to Ranchi and was posted at Khunti in the month of August, 1997. It is also submitted that his last pay certificate was also prepared. According to the petitioner, these facts suggests that he was in permanent service under the State. He submitted that he served the State to the full satisfaction. It is the case of the petitioner that suddenly the salary of the petitioner was stopped w.e.f. August, 2007 without any reason. 5. Learned counsel for the petitioner submits that on an earlier occasion also, the salary of the petitioner was stopped, for which he moved this Hon'ble Court by filing W.P.(S) No. 474 of 2002. It is submitted that during the pendency of the said writ application the respondent had released the salary. Since the grievances of the petitioner was then redressed, the petitioner withdrew the writ application. He submits that only to harass the petitioner the payment of salary is being withheld. He submits that he is entitled for the salary from August, 2007 onwards. 6. Counter-affidavit was directed to be filed in this case which was filed taking a plea that the petitioner has obtained employment by fraud. 7. From perusal of the order dated 28.06.2012 passed in this case, it is clear that there is a serious objection by the State in respect of the appointment of the petitioner. This Hon'ble Court on 28.06.2012, after perusing the entire record, has held that there is a specific stand of the respondents that the petitioner's initial appointment letter, transfer letter and other documents are forged and manipulated. The petitioner was never appointed, and he has played fraud with the department by taking plea that he has been legally appointed. 8. This Hon'ble Court on 28.06.2012, after perusing the entire record, has held that there is a specific stand of the respondents that the petitioner's initial appointment letter, transfer letter and other documents are forged and manipulated. The petitioner was never appointed, and he has played fraud with the department by taking plea that he has been legally appointed. 8. This Hon'ble Court after perusing the entire documents and having been satisfied that a fraud has been committed, directed the State to inquire this matter by a Special Investigating Team (SIT). Further it was directed to register an F.I.R against the petitioner and proceed accordingly. 9. For better appreciation, the order dated 28.06.2012 passed in this case is quoted herein below; “By way of present writ petition, the petitioner is seeking mandamus directing the respondents to release salary of the petitioner with effect from August, 2007. Having perused the entire record, it transpires that the respondents have taken specific stand that the respondents have taken specific stand that the petitioner's initial appointment letter, transfer letter and other documents are altogether forged and manipulated; the petitioner was never appointed and he has played fraud with the department saying that he has been rightly appointed. Mr. Rajendra Krishna, learned counsel for the petitioner, has vehemently argued that the petitioner has earlier filed W.P.(S) No. 474 of 2002 for release of salary with effect from May, 2000 and in that writ petition also, assertions were made by the respondents to the effect that the petitioner's appointment itself is forged one. However, during the pendency of the earlier writ petition i.e. W.P(S) No. 474 of 2002, payment was made by the department, therefore, the relief claimed in the writ petition did not survive any more, consequently, the writ petition was dismissed as withdrawn vide order dated 19.12.2003 (Annexure 4 to this writ petition). Learned counsel for the petitioner states that had he been not validly appointed, there was no question of releasing the salary during the pendency of the earlier writ petition W.P.(S) No. 474 of 2002. He has further submitted that now the respondents are estopped to challenge the appointment and transfer of the petitioner. Mrs. Learned counsel for the petitioner states that had he been not validly appointed, there was no question of releasing the salary during the pendency of the earlier writ petition W.P.(S) No. 474 of 2002. He has further submitted that now the respondents are estopped to challenge the appointment and transfer of the petitioner. Mrs. Nehala Sharmin, learned J.C. to Sr.S.C.II, appearing for the respondents has vehemently contended that petitioner's salary was released during the pendency of the earlier writ petition because at that time, enquiry initiated to find out the validity of the appointment of the petitioner could not be completed. She has further stated that now after enquiry, the respondents came to know that the petitioner's appointment itself is forged and manipulated one and he has played fraud with the Government in securing the appointment and getting the payment released. She has further stated that there cannot be any estoppal against the statute and if initial appointment is itself fabricated, false and outcome of fraud, the petitioner cannot claim any immunity of law, simply because payment was released to him during the pendency of the earlier writ petition. She has further stated that the Department my also lodge F.I.R. against the petitioner. Be that as the case may be, since serious issue has been raised about the appointment of the petitioner, in the opinion of this Court, this is a fittest case wherein proper enquiry should be directed to be made by the Special Investigating Team (for short “SIT”) of three officers not below the rank of Deputy Superintendent of Police. The respondents may register an F.I.R. against the petitioner within ten days from today. On the registration of the first information report, the Director General of Police, State of Jharkhand shall constitute Special Investigation Team of three officers not below the rank of Deputy Superintendent of Police. The SIT so constituted shall submit their investigation report to the Director General of Police, State of Jharkhand and one copy of this Court. The SIT, if requires custodial interrogation of the petitioner, shall seek prior approval of this Court. Let the entire exercise be completed within four months from today enabling the Court to pass appropriate order. List this case on 21st November, 2012.” 10. It appears that pursuant to the order passed by this Court the Special Investigating Team was constituted and a F.I.R. was lodged. 11. Let the entire exercise be completed within four months from today enabling the Court to pass appropriate order. List this case on 21st November, 2012.” 10. It appears that pursuant to the order passed by this Court the Special Investigating Team was constituted and a F.I.R. was lodged. 11. The supplementary affidavit has been filed by the Superintendent of Police Khuti on 27.03.2017 bringing before this Court about the status of the investigation, pursuant to the order passed by this Court earlier. 12. Paragraph 8 of the supplementary counter-affidavit filed by the State categorically states that the appointment of this petitioner is not genuine. The case diary of Khuti P.S. Case No. 88 of 2012 has also been brought on record along with the affidavit. From perusal of the paragraph 46 of the said case diary, it transpires that after investigation, it was found that the appointment of the petitioner was not legal and it has been concluded that there was manipulation in the documents and even the documents were forged. 13. From the record, it prima facie transpires that the appointment of the petitioner is illegal and has been obtained by forging and manipulating documents. Thus, prima facie a fraud has been committed. It is well settled principle that fraud vitiates all actions. The Hon'ble Supreme Court in the case of National Institute of Technology & Ors Vs. Niraj Kumar Singh as reported in (2007) 2 SCC 481 : 2007 (2) JCR 424 (SC) in para 22 has held that an appointment obtained by fraud is nullity. Further in the case of Meghmala & Ors Vs. G. Narasimha Reddy & Ors. as reported in (2010) 8 SCC 383 the Hon'ble Suprme Court has held that where an applicant gets an order/office by making false representation or by playing fraud on the competent authority, such order cannot be sustained in the eye of law. 14. Thus, when the initial appointment of the petitioner is by way of fraudulent means, all the subsequent actions including alleged confirmation of his service, granting of ACP etc is also bad and non est in the eye of law. The confirmation of service and payment of ACP cannot legalize the gross illegality committed by the petitioner in getting appointment. 15. Thus, when the initial appointment of the petitioner is by way of fraudulent means, all the subsequent actions including alleged confirmation of his service, granting of ACP etc is also bad and non est in the eye of law. The confirmation of service and payment of ACP cannot legalize the gross illegality committed by the petitioner in getting appointment. 15. Filling of earlier writ application bearing No. W.P.(S) No.474 of 2002 and payment of salary during pendency of the writ application will also not legalized the illegal appointment of this petitioner. 16. In view of the aforesaid fact, I find that the petitioner is not entitled to get any relief in this case. The respondents are justified in not paying the salary of the petitioner. 17. This writ application is thus dismissed.