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2018 DIGILAW 1045 (JHR)

Mithilesh Prasad v. State of Jharkhand

2018-05-10

S.N.PATHAK

body2018
ORDER : The petitioner has approached this Hon'ble Court with a prayer for quashing/setting aside the order dated 09.11.2015 (Annexure-14) passed by the Director in Chief, Health Services, Jharkhand, Ranchi (respondent No.3) whereby and whereunder the prayer of the petitioner for acceptance of his joining as Lab. Technician, Blood Bank, Sadar Hospital, Giridih has been rejected. Further prayer has been made for direction upon the respondent No.5 Civil Surgeon-cum-Chief Medical Officer, Giridih to accept the joining of the petitioner as Lab Technician, Blood Bank, Sadar Hospital, Giridih. It has also been prayed for direction upon the respondents for consequential benefits and payment of salary for intervening period i.e. 04.05.2010 when the Director in Chief Health Services, Jharkhand, Ranchi allowed the petitioner to join duty and for payment of compensation to the extent of Rs.50,000/- for mental torture and agony to which the petitioner was subjected. 2. The brief facts of the case is that the petitioner was appointed as Lab Technician in the year 1991. Thereafter Director-in-Chief, Health Services, Bihat, Patna confirmed the appointment by his letter No. 238 dated 27.04.1991. After joining he was posted as Lab Technician, Blood Bank, Sadar Hospital, Giridih. 3. It is the case of the petitioner that he was regularly working as Lab Technician, Blood Bank, Sadar Hospital, Giridih with full satisfaction of all concerned. In the meantime, petitioner was seriously ill and he was unable to move any where and he was on leave from 11.02.1994 to 18.02.1994, thereafter he submitted application to Superintendent, Sadar Hospital, Giridih on 19.02.1994 regarding extension of leave till 15.03.1994. 4. It is further case of the petitioner that he was suffering from mental illness because of that he could not attend after leave and he was under treatment since 11.02.1994 to 19.11.2008 under Dr. Ashok Prasad, Neuro Psychiatrist, Rajendra Institute of Medical Sciences, Ranchi. When the petitioner was medically fit for work as per doctor's opinion then petitioner submitted representation enclosing the prescriptions of his treatment and requested to allow her to work. The Civil Surgeon-cum-Chief Medical Officer, Giridih neither allowed him to join duty nor he has taken decision in this regards and by his letter No.285 dated 04.02.2010 matter was referred to Director-in-Chief, Health Services, Jharkhand, Ranchi. The Civil Surgeon-cum-Chief Medical Officer, Giridih neither allowed him to join duty nor he has taken decision in this regards and by his letter No.285 dated 04.02.2010 matter was referred to Director-in-Chief, Health Services, Jharkhand, Ranchi. Thereafter, the Director-in-Chief, Heath Services Jharkhand, Ranchi wrote a letter dated 04.05.2010 to Civil Surgeon, Giridih for accepting the joining of the petitioner as because Government has not followed the procedure as prescribed in law. In the light of aforesaid direction, the petitioner submitted representation to Civil Surgeon cum Chief Medical Officer, Giridih and requested the petitioner to allow him to join duty, as is appeared from his representation dated 10.05.2010. The Civil Surgeon-cum-Chief Medical Officer, Giridih has not given any response to aforesaid representation. Thereafter on 03.09.2010 petitioner again submitted representation to Director-in-Chief, Health Services, Jharkhand, Ranchi stating all the grievances in details. The petitioner has submitted a number of representations to Civil Surgeon-cum-Chief Medical Officer, Giridih and requested to allow him to join duty but all went in vain hence the petitioner has knocked the door of this Hon'ble Court for redressal of his grievance. 5. Learned Counsel for the petitioner Mr. Manoj Tandon assisted by Mr. M.L. Yadav strenuously urges that the inaction is on the part of the respondents in not accepting the joining of the petitioner as Lab Technician though several letters were issued by the higher officer of the Department. Though the petitioner is fit for work as per report of the Doctor, the respondent No.5 is not justified in not accepting the joining of the petitioner in spite of several orders passed by the Director-in-Chief, Health Services, Jharkhand. It has been further argued that action of respondent is violative of Article 14 and 16 of the Constitution. As no decision has been taken, a direction be given to the respondents to accept the joining of the petitioner in view of medical report. 6. Per contra counter-affidavit has been filed. 7. It has been further argued that action of respondent is violative of Article 14 and 16 of the Constitution. As no decision has been taken, a direction be given to the respondents to accept the joining of the petitioner in view of medical report. 6. Per contra counter-affidavit has been filed. 7. Learned Counsel for the respondent-State submits that petitioner was appointed on the post of Technician on the basis of letter No.107/25 issued by the Director-in-Chief, Health Services, Bihar Patna dated 08.03.1991 Annexure-A and he was posted on 08.04.1991 as Lab Technician in Giridih District in pursuance of Letter No.1244 dated 09.05.1991 issued by the Civil Surgeon, Giridih Annexure-B. The petitioner worked on the post of Lab Technician in Blood Bank Sadar Hospital, Giridih since 08.04.1991 to 10.02.1994 and received his salary regularly. Thereafter the petitioner remained absent from 11.02.1994 to 19.11.2008 without leave of the Department. The Director-in-Chief, Health Services vide his letter dated 04.05.2010 passed an order for acceptance of his joining as Lab Technician on the ground of his fitness certificate issued by the Rajendra Institute of Medical Science, Ranchi. Thereafter the petitioner preferred a writ petition in the Hon'ble High Court and this Hon'ble Court directed the respondent No.3 Director-in-Chief, Health Services, Jharkhand, Ranchi for redressal of his grievance with all necessary facts and documents and to examine the petitioner's grievance in the light of all relevant materials on record and to take a decision in the light of the order of this Court. A reasoned order was passed vide order dated 09.11.2015. The petitioner was appointed on the basis of letter No.107/25 dated 08.03.1991. The Civil Surgeon, Giridih found that in original Letter No.107/25 dated 08.03.1991 serial No.48 was in the name of Devendra Kumar, Village Bohlalpur, P.O. Bhagwanpur, Dist. Vaishali and serial No.49 was in the name of Umakant Prasad Village and P.O. Nekpur, Rajgir, District-Nalanda. It transpires that by practicing fraud the petitioner managed his name to be inserted at serial No.48 in place of Devendra Kumar. The Director, Health Services also found that petitioner was appointed by practicing fraud in letter No.107/25 dated 08.03.1991 and withdrew salary from the Department and the Director also found that petitioner obtained his service by practicing fraud misguiding the Department and as such an F.I.R. was lodged against the petitioner as Giridih Town P.S. Case No.196/2016. The Director, Health Services also found that petitioner was appointed by practicing fraud in letter No.107/25 dated 08.03.1991 and withdrew salary from the Department and the Director also found that petitioner obtained his service by practicing fraud misguiding the Department and as such an F.I.R. was lodged against the petitioner as Giridih Town P.S. Case No.196/2016. The petitioner obtained his appointment by practicing fraud and therefore rightly he was not allowed to join his duty. The Department did not initiate any departmental proceeding as the appointment itself was fraudulent and was obtained by practicing fraud and as such there was no need of initiation of departmental proceeding. 8. Be that as it may, having gone through the rival submissions of the parties and from perusal of the material brought on record, this Court is of the considered opinion that no interference is warranted in this writ application. Admittedly, the petitioner by practicing fraud managed his name to be inserted at serial No.48 in place of Devendra Kumar. Upon enquiry the Director, Health Services found that the petitioner got appointment by playing fraud and illegally withdrew salary from the Department and as such Director, Health Services directed the Civil Surgeon, Giridih for lodging a criminal case. Reliance of the petitioner in case of “Punjab State Electricity Board & Others vrs. Leela Singh” is of no help to the petitioner as in the instant case service of the petitioner was terminated without any departmental proceeding as the charge levelled against the petitioner is that by committing fraud in obtaining appointment by production of forged experience certificate. The said charge was required to be proved in a duly constituted departmental proceeding. In the instant case admittedly no departmental proceeding was initiated as it was not required. Prima facie it was established that the petitioner procured service on the basis of forged and fabricated letter of appointment. He got his name inserted in place of Devendra Kumar and was never appointed following the procedures of law. Rightly an F.I.R. was lodged against the petitioner. It is settled principle of law that when prima facie it is established that service is procured by a person by committing forgery and on the basis of forged and fabricated documents then no departmental proceeding is necessary to be initiated before terminating the service of that person and it will not amount to violation of principle of natural justice. It is settled principle of law that when prima facie it is established that service is procured by a person by committing forgery and on the basis of forged and fabricated documents then no departmental proceeding is necessary to be initiated before terminating the service of that person and it will not amount to violation of principle of natural justice. The Hon'ble Apex Court in case of “Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. Vrs. Devendra Kumar Jain and Others”, reported in (1995) 1 SCC 638 after considering a similar question held that in the case of appointment on temporary basis a servant who is so appointed does not acquire any substantive right to the post, even though the post itself may be permanent and it is an implied term of such appointment that it may be terminable at any time and without notice. A temporary Govt. servant does not become a permanent Govt. servant unless he acquires that capacity by force of any rule or he is declared or appointed as a permanent servant. 9. In the facts and circumstances of the case, it is prima facie established that the petitioner obtained appointment by way of practicing fraud and on the basis of forged and fabricated documents, I am of the considered opinion that if a person gets appointment on the basis of forged and fabricated letter of appointment then services of such person can be terminated without initiating any departmental proceeding and the same will not amount to violation of principle of natural justice when the appointment itself is in complete violation of Article 14 and 16 of the Constitution then such appointment can be terminated without initiating any departmental proceeding and such termination of service will not amount to violation of principle of natural justice. Similar issue fell for consideration before this Hon'ble Court in case of “Umesh Kumar Singh vrs. State of Bihar & Ors.”, reported in (2001) 2 BLJR 1255 and the Court was of the similar view. The Hon'ble Apex Court in case of “State of Orissa & Anr. Vrs. Bibhisan Kanhar, reported in (2017) 8 SCC 608 , has held: “5.5 It is clear from the facts that the respondent fraudulently obtained a certificate showing that he belongs to the Scheduled Tribe Community which stands cancelled by the order passed by the State-level Scrutiny Committee.” 6. The Hon'ble Apex Court in case of “State of Orissa & Anr. Vrs. Bibhisan Kanhar, reported in (2017) 8 SCC 608 , has held: “5.5 It is clear from the facts that the respondent fraudulently obtained a certificate showing that he belongs to the Scheduled Tribe Community which stands cancelled by the order passed by the State-level Scrutiny Committee.” 6. It was held by Denning, L.J. in Lazarus Estates Ltd. v. Beasley 2 that: (QB p.712: All ER p. 345) “No court... will allow a person to keep an advantage which he has obtained by fraud. […] Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever....” The Hon'ble Apex Court in case of “Krishna Hare Gaur Vrs. Vinod Kumar Tyagi & Ors. has held: “15 When the appointment is made dehors the rules, the same is nullity. In such an eventuality, the statutory bar like doctrine of res judicata is not attracted. In Meghmala v. G. Narasimha Reddy this Court held as under: (SCC p.396, para 36) “36. From the above, it is event that even in judicial proceedings, once a fraud is proved, all advantages gained by playing fraud can be taken away. In such an eventuality the questions of non-executing of the statutory remedies or statutory bars like doctrine of res judicata are not attracted. Suppression of any material fact/document amounts to a fraud on the court. Every court has an inherent power to recall its own order obtained by fraud as the order so obtained is non est.” Since Respondent 1 obtained appointment on the basis of bogus certificates, in our considered view, the principle of res judicata will not be attracted to the case on hand.” As a cumulative effect of the aforesaid Rules, Guidelines, Judicial Pronouncement, I do not find any illegality or infirmity in the order of respondents. No interference is required in the instant writ petition. Resultantly, the writ petition merits dismissal and is hereby dismissed.