Research › Search › Judgment

Andhra High Court · body

2021 DIGILAW 12 (AP)

S. Abdul Rahiman v. Superintendent

2021-01-18

BATTU DEVANAND

body2021
ORDER : 1. The present Writ Petition was filed questioning the impugned Order in Rc.No.G1/3097/2011, dated 11.02.2012, wherein respondent No.2 rejected the claim of the petitioner for continuing service in the post of driver on contract basis to the blood transportation by confirming the impugned Termination Order dated 25-11-2010 issued by respondent No.1. 2. As per the averments made in the affidavit filed along with Writ Petition, the facts of the case are as follows: The petitioner belongs to BC Category and he passed intermediate and also possessing heavy transport vehicle license. The petitioner was appointed as driver by respondent No.1 vide Proceedings dated 13-09-2010 on contract basis to the Blood Bank Transportation Van, Government General Hospital, Anantpur. One of the unsuccessful candidates complained that the Experience Certificate submitted by the petitioner is not genuine. Taking the same into account, respondent No.1 issued Proceedings dated 25-11-2010, terminating the services of the petitioner. Aggrieved by the same, the petitioner preferred an appeal before Respondent No.2. On 29-11-2010, as no orders have been passed thereon by Respondent No.2, the petitioner filed W.P.No.23401 of 2011 and the same was disposed of by this Court directing respondent No.2 to pass orders upon the representation dated 29-11-2010 submitted by the petitioner within a period of four weeks from the date of receipt of a copy of the Order. Accordingly, Respondent No.2 passed Orders vide Proceedings in R.C.No.G1/3097/2011, dated 11-02-2012 and rejected the representation made by the petitioner. Aggrieved by the same, the present Writ Petition is filed. 3. A counter affidavit has been filed by the respondents. In the said Counter Affidavit, it is averred by the respondents that one Sri Muralidhar Yadav, who had applied for the post of Driver and who was placed at serial No.3 in the selection list, submitted a complaint against the petitioner that the petitioner had submitted a false Experience Certificate during the selection process. Respondent No.1 after careful examination and an enquiry about the Experience Certificate issued by the Civil Assistant Surgeon, Community Health Centre, Tadipatri and the Assistant Director (Admn) Government Hospital, Anantapur, addressed a Letter dated 23-01-2010 about the Experience Certificate. The Medical Officer, Community Health Centre, Tadipatri, has reported that the Experience Certificate produced by the petitioner is a false one. Respondent No.1 after careful examination and an enquiry about the Experience Certificate issued by the Civil Assistant Surgeon, Community Health Centre, Tadipatri and the Assistant Director (Admn) Government Hospital, Anantapur, addressed a Letter dated 23-01-2010 about the Experience Certificate. The Medical Officer, Community Health Centre, Tadipatri, has reported that the Experience Certificate produced by the petitioner is a false one. He reported that the petitioner worked as driver for his private car, but not official one, and the salary was paid from his personal amount. After calling for the explanation from the petitioner, respondent No.2 vide Proceedings in R.C.No.3097/G1/2010, dated 25-11-2010, removed the petitioner from the post of driver and the same was confirmed by respondent No.2 in his Proceedings dated 11-02-2012. 4. Heard Sri M.R. Tagore, learned counsel for the petitioner and Sri B. Bheema Rao, learned Government Pleader for Services-III appearing for the respondents and perused the record. 5. Learned counsel for the petitioner submits that the petitioner was selected as a driver on contract basis being the most eligible and suitable candidate basing on the driving performance, road sense knowledge, presence of mind, vehicle mechanism knowledge, past experience etc. The petitioner secured 63 marks out of 100 marks during the selection process and stood at serial No.1 in the final selection list. As there is only one post of driver was notified, the petitioner was appointed in the said post. In the Notification issued calling for the applications to fill up the post of driver on contract basis, the applicant should have three years experience in driving. There is no any specific condition that the applicant should have the experience of driving the Government vehicles. Learned counsel for the petitioner would submit that in fact the petitioner worked as driver on the private vehicle of Dr. Ali Kutubuddin, Civil Assistant Surgeon, Community Health Centre, Tadipatri, from 01-06-2001 to 01-06-2005. The petitioner requested the said Doctor to give Experience Certificate that he has worked on his vehicle as driver to enable the petitioner to submit the same along with the application. The said Doctor issued the Certificate and the same was submitted along with the application. As such, the question of submitting false Experience Certificate does not arise and the respondents erroneously came to a conclusion that the Experience Certificate produced by the petitioner is a fabricated one and erroneously removed the petitioner from the post of Driver. The said Doctor issued the Certificate and the same was submitted along with the application. As such, the question of submitting false Experience Certificate does not arise and the respondents erroneously came to a conclusion that the Experience Certificate produced by the petitioner is a fabricated one and erroneously removed the petitioner from the post of Driver. 6. Learned counsel for the petitioner further submits that no notice was issued before passing the Removal Order dated 25-11-2010 by respondent No.1 and no opportunity for personal hearing was given to the petitioner to put forth his case in person before passing the orders by respondent No.1, dated 25-11-2010 and the proceedings issued by respondent No.2, dated 11-02-2012, and as such, these two proceedings are unsustainable under law as they are passed without giving proper opportunity to the petitioner before passing orders, which is in violation of principles of natural justice. 7. On the other hand, learned Government Pleader would submit that after conducting enquiry about genuineness of the Experience Certificate produced by the petitioner, respondent No.1 passed the Order of Removal dated 25-11-2010 and the representation submitted by the petitioner against the removal order was rejected by respondent No.2 on 11-02-2012 and there is no any infirmity in passing these proceedings. He further submitted that the Doctor, who issued the Experience Certificate to the petitioner reported that the petitioner did not work as driver on the official vehicle of the hospital and the petitioner worked as driver for his private car and the salary was paid from his personal amount, and the Certificate produced by the petitioner contained the Seal affixed on the Certificate, and as such, it is a fabricated Certificate, and prayed this Court to dismiss the Writ Petition. 8. Having heard the submissions of the learned counsel and upon perusing the material available on record, it is an admitted fact that the petitioner has submitted an application for the post of driver, which was notified by respondent No.1 in newspapers on 22-08-2010. As per the said Notification, the applicant should have 28 years of age and he should have three years of experience in driving. As per the said Notification, the applicant should have 28 years of age and he should have three years of experience in driving. As the petitioner fulfilled all the requisite qualifications, the petitioner’s name was placed at serial No.1 in the final selection list and as there is only one post, the petitioner was appointed in that post vide Proceedings in R.C.No.1956/G1/2010, dated 13-09-2010 by respondent No.1. It is also an admitted fact that one unsuccessful candidate whose name was placed at serial No.3 in the final selection list made a complaint to respondent No.1 that the petitioner produced false Experience Certificate. It appears that respondent No.1 called for the remarks of the Medical Officer, Community Health Centre, Tadipatri, and basing on his remarks, in which it was stated that the petitioner worked as driver for his private car, but not the official one and the salary was paid from his personal amount and he does not know about the seal affixed below his signature, respondent No.1 issued Proceedings dated 25-11-2010, removing the petitioner from the post of driver with immediate effect. 9. On careful examination of the Removal Order dated 25-11-2010 issued by respondent No.1, there is no mention in that Order so as to whether any show cause notice was issued to the petitioner calling for his explanation to put forth his version. There is no mention in the Order dated 25-11-2010 that the petitioner was given any opportunity to put forth his case in person. However, the petitioner, having aggrieved by the Order dated 25-11-2010 of respondent No.1, submitted an appeal/representation dated 29-12-2010 before respondent No.2. Consequent to the orders of this Court dated 19-08-2011 in W.P.No.23401 of 2011, respondent No.2 passed Orders on 11-02-2012 rejecting the appeal/representation dated 29-12-2010 submitted by the petitioner. On careful examination of the Proceedings dated 11-02-2012 passed by Respondent No.2 also, it is clear that there is no mention in that Order dated 11-02-2012 that the petitioner was provided any opportunity for personal hearing. Respondent Nos. On careful examination of the Proceedings dated 11-02-2012 passed by Respondent No.2 also, it is clear that there is no mention in that Order dated 11-02-2012 that the petitioner was provided any opportunity for personal hearing. Respondent Nos. 1 and 2 passed the Order dated 25-11-2010 and 11-02-2012 without following the procedure provided under law without giving any notice or opportunity to the petitioner to put forth his case before the authorities and thereby this Court is left with no option except to hold that the Order dated 25-11-2010 passed by respondent No.1 and the Order dated 11-02-2012 by respondent No.2 are passed against to the principles of natural justice, and as such, those proceedings are liable to be set aside. 10. This Court noticed from the conditions mentioned in the notification calling for the applications from the eligible candidates, which was published in the newspapers filed as material papers in the present Writ Petition, the one of the condition is that the applicant should have three years experience in driving. It has to be considered that on any vehicle, he should have experience in driving for three years only. It cannot be said that three years driving experience shall be on the Government vehicles. Admittedly, as per the remarks sent by Dr. Ali Kutubuddin, Civil Assistant Surgeon, Community Health Centre, Tadipatri, the petitioner worked as driver for his private car from 01-06-2001 to 01-06-2005 and the salary was paid from his personal amount. As such, it is categorically established that the petitioner worked as a driver on the private car of Dr. Ali Kutubuddin, from 01-06-2001 to 01-06-2005, and as such, the petitioner fulfilled the condition of 3 years driving experience. 11. Now the issued to be considered is affixing of the seal below the signature of the said Dr. Ali Kutubuddin, who issued Experience Certificate in favour of the petitioner can be treated as the petitioner was worked in the official capacity as a driver or the Experience Certificate issued by Dr. Ali Kutubuddin, is said to be false and fabricated one. 12. As seen from the Experience Certificate filed as material paper in the present Writ Petition, the Certificate was issued with handwriting by Dr. Ali Kutubuddin on 01-06-2005. In the said Certificate, it was not stated whether the petitioner worked as driver on his private car or official car. Ali Kutubuddin, is said to be false and fabricated one. 12. As seen from the Experience Certificate filed as material paper in the present Writ Petition, the Certificate was issued with handwriting by Dr. Ali Kutubuddin on 01-06-2005. In the said Certificate, it was not stated whether the petitioner worked as driver on his private car or official car. Normally, as and when the Doctors issues any Medical Certificates or other Certificates, the seal of the Doctor will be affixed by the office staff after the signature of the said Doctor, who issued that Certificate. On careful examination of the Experience Certificate, dated, 01-06-2005 issued by Dr. Ali Kutubuddin, Civil Assistant Surgeon, Community Health Centre, Tadipatri, coupled with the Remarks of the said Doctor who stated that the petitioner worked as driver for his private car and the salary was paid from his personal amount, it can be safely come to a conclusion that the petitioner worked as driver on the private vehicle of Dr. Ali Kutubuddin and he was paid salary from the Doctor’s personal amount and the same Doctor issued the Experience Certificate in favour of the petitioner with his handwriting. As such, because of the reason that the Seal of the Doctor was affixed below his signature, it cannot be treated as a false and fabricated certificate. As such, the order impugned is unsustainable and liable to be set aside. 13. This Court also noticed in the Proceedings dated 11-02-2012 passed by Respondent No.2, in the last paragraph of the proceedings, it was mentioned as “ as it is not desirable to appoint such candidate, who is having the attitude of criminal misconduct”. In the considered opinion of this Court, the said comments made in the proceedings dated 11-02-2012 of respondent No.2 are unwarranted and unwanted and those comments were made without any basis which affects the future career of the petitioner. 14. The respondents passed the impugned Orders without conducting proper enquiry and without giving any opportunity to the petitioner to put forth his case by way of affording opportunity for personal hearing and besides that the remarks in these two orders against the petitioner appears to be pre-determined and unwarranted. 14. The respondents passed the impugned Orders without conducting proper enquiry and without giving any opportunity to the petitioner to put forth his case by way of affording opportunity for personal hearing and besides that the remarks in these two orders against the petitioner appears to be pre-determined and unwarranted. As such, in the opinion of this Court, the Proceedings in R.C.No.3097/G1/2010, dated 25-11-2010 issued by respondent No.1 and the Proceedings in R.C.G1/3097/2011, dated 1102-2012, issued by respondent No.2, are unsustainable in the eye of law as these orders are passed contrary to the principles of natural justice and without following basic principles of law. 15. The view of this court is fortified by the principle laid down by the Hon’ble Apex Court in Raghunath Thakur Vs. State of Bihar and Ors., AIR 1989 SC 620 in which it was held that: “In the aforesaid case, that a person adversely affected by an order has right of being heard and making representations against order, even though rules do not provide so expressly”. 16. In S.N. Mukherjee Vs. Union of India, AIR 1990 SC 1984 the Hon’ble Apex Court held as follows : “Administrative action should be supported by reasons and the principles of natural justice should be followed”. 17. In the case of D.K. Yadav Vs. J.N.A Industries Ltd, (1993) 3 SCC 259 , the Hon’ble Apex Court held as under : “Requirement of natural justice was held to be a precondition and action taken without following the principles of natural justice was held to be violative of Article 14 of the Constitution of India”. 18. For the above mentioned reasons, and in the absence of issuing any show cause notice to the petitioner before passing the impugned order and for not giving opportunity to him for personal hearing, in the opinion of this Court, the impugned Order is passed in contrary to the settle law and violative of principles of natural justice, and as such, it is liable to be set aside. 19. For the aforementioned reasons, the present Writ Petition is allowed and the Proceedings in R.C.No.3097/G1/2010, dated 25-11-2010, and R.C.G1/3097/2011, dated 11-02-2012, are hereby set aside. Consequently, direct the respondents to reinstate the petitioner into service forthwith. Consequently, miscellaneous applications pending, if any, shall stand closed.