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2017 DIGILAW 799 (JHR)

Abhishek Prasad v. Union of India through the Secretary, Ministry of Railway, New Delhi

2017-05-04

H.C.MISHRA, S.N.PATHAK

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JUDGMENT : 1. Since common question is involved in all these three writ applications, they are heard together and being disposed of by this common order. 2. Heard learned counsel for the petitioners and the learned counsel for the Railways. 3. The petitioners are aggrieved by the orders dated 10.12.2015 passed by the Central Administrative Tribunal, Circuit Bench at Ranchi, in O.A. No. 266 of 2012 (R), O.A. No.265 of 2012 (R) & O.A. No. 14 of 2013 (R), whereby the applications filed by the petitioners challenging the order of their termination from service on the ground that their appointment was fraudulently made, have been dismissed by the Central Administrative Tribunal. 4. The petitioners' claim that their engagement as Substitute in Group-D was regularly made in exercise of the discretionary power by the General Manager Railway, as per circular dated 4.11.1992. According to the petitioners' claim, the petitioners were directed to deposit the required fees for their medical examinations and accordingly, they underwent medical examinations and after getting through the medical examinations etc., they were appointed by the competent authority as Substitute Group-D. After about five years of their service, it was detected that the petitioners were appointed in a fraudulent manner, inasmuch as, the process for regular appointment was initiated and the cases of the 13 genuine candidates were being considered, but in the garb of that, while offering the appointments to the said 13 genuine candidates, the applicants were also fraudulently offered the appointments by the Senior DPO/SEC, Railway, Raipur, being a Junior Administrative Grade Officer, and ultimately petitioners were also appointed. 5. In W.P.(S) No. 1166 of 2016, the learned counsel for the petitioners has placed reliance upon Annexure-4, which is the letter dated 2.7.2009, issued by the Senior DPO/SEC, Railway, Raipur, by which the petitioners claim to be appointed. This letter dated 2.7.2009 states that in terms of CPO/BSP's Letter No. P/HQ-Rectt/Sub/Gr-'D'/13 dated 23.01.2009, the petitioners were engaged as Substitute in Group-D category and they were being allotted to Raipur Division in Mechanical (C&W) Department. This letter dated 2.7.2009 contained the names of all these three petitioners only. The CPO/BSP's said letter dated 23.01.2009 has been brought on record as Annexure-11 to the writ application, which clearly shows that there were names of the genuine 13 candidates only in the said letter. This letter dated 2.7.2009 contained the names of all these three petitioners only. The CPO/BSP's said letter dated 23.01.2009 has been brought on record as Annexure-11 to the writ application, which clearly shows that there were names of the genuine 13 candidates only in the said letter. The names of these petitioners did not find place in the CPO/BSP's said letter dated 23.01.2009 as contained in Annexure-11 to the writ application. In spite of this fact the letter dated 2.7.2009 as contained in Annexure-4 shows that the petitioners were engaged pursuant to this letter dated 23.01.2009 as contained in Annexure-11 to the writ application. 6. The impugned orders passed by the Central Administrative Tribunal show that when this fraudulent action was detected, the petitioners were given the notice dated 24.8.2012, to show cause as to why their services should not be terminated as they were appointed fraudulently. The petitioners Abhishek Prasad and Dilip Kumar Pasi also gave their representations against the same, but no reply to the show cause was given by the petitioner Binod Kumar Akela. Upon consideration of the representations, the services of the petitioners were terminated by the competent authority, by orders dated 21.9.2012 as contained in Annexure-13 to the writ applications, stating that the initial appointments of the petitioners were fraudulently made, and were thus, null and void ab initio. The Central Administrative Tribunal, after adjudication of the matter and placing reliance upon the decision of the Supreme Court in Superintendent of Post Offices & Others vs. R. Valasina Babu, reported in (2007) 2 SCC 335 , dismissed the applications filed by the petitioners by the impugned orders dated 10.12.2015 passed in the respective cases. 7. Learned counsel for the petitioners, in course of argument could not show anything to us as to how the petitioners' cases were processed in spite of the fact that their names did not find place in the CPO/BSP's said letter dated 23.01.2009 as contained in Annexure-11 to the writ application. However, learned counsel for the petitioners vehemently argued that the petitioners were duly appointed and they worked for about five years in the Railways and accordingly, their services could not be terminated in the manner they have been terminated. However, learned counsel for the petitioners vehemently argued that the petitioners were duly appointed and they worked for about five years in the Railways and accordingly, their services could not be terminated in the manner they have been terminated. It is submitted by learned counsel for the petitioners that in the meantime the services of the petitioners were also confirmed, and accordingly, the services of the petitioners could be terminated only after a departmental enquiry in accordance with law, which procedure was not followed in the cases of the petitioners. 8. Learned counsel for the respondent-Railway has drawn our attention to the counter-affidavit and particularly to the aforesaid letter dated 23.01.2009 to show that the names of the petitioners were not amongst those 13 genuine candidates whose case for appointment was processed by the Railways and still based on said letter, the petitioners were given appointment fraudulently. It is submitted by the learned counsel for the Railways that appropriate departmental action has already been taken against the officials responsible for the fraudulent appointment of the petitioners. 9. It is now well settled that in cases of appointments obtained by fraud, the requirement of subjecting the employee to a regular departmental proceeding need not be followed. The requirements of natural justice are satisfied by giving an opportunity to be heard to the delinquent, against the proposed action of removal from service. It is for the delinquent either to respond to such opportunity or not, and even if the delinquent chooses not to respond, he can be removed from service. In the present case, two of the petitioners responded to the show cause notice and one of them did not respond. In Distt. Primary School Council v. Mritunjoy Das & Ors., reported in (2011) 15 SCC 111 , wherein where, the appointment was obtained by fraud, and the employees were dismissed from service only after giving the show cause notice to them, the Apex Court has laid down the law as follows:- “9. -----------. It is not that the contesting respondents were not given any opportunity of hearing. They were given a show-cause notice and were also given an opportunity of hearing which opportunity they did not accept although they submitted a reply to the show-cause notice. There is, therefore, no violation of the principles of natural justice in the present case. -----------. It is not that the contesting respondents were not given any opportunity of hearing. They were given a show-cause notice and were also given an opportunity of hearing which opportunity they did not accept although they submitted a reply to the show-cause notice. There is, therefore, no violation of the principles of natural justice in the present case. If a particular act is fraudulent, any consequential order to such fraudulent act or conduct is non est and void ab initio and, therefore, we cannot find any fault with the action of the appellant in dismissing the service of the contesting respondents. In this context we refer to the decision of this Court in Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education for the proposition that no person should be allowed to keep an advantage which he has obtained by fraud.” (Emphasis supplied). 10. We find from the record that the cases of the petitioners are of sheer fraudulent appointments, which were null and void ab initio. As such no relief can be granted to the petitioners in view of the law laid down by the Hon’ble Apex Court, as quoted above, in exercise of the writ jurisdiction. 11. There is no merit in all these three writ applications, which are accordingly, dismissed.