Patna High Court - Orders
The State Of Bihar & Ors vs Indra Mohan Rai on 27 November, 2008
Author: Kishore K. Mandal
Bench: Kishore K. Mandal
IN THE HIGH COURT OF JUDICATURE AT PATNA
LPA No.831 of 2007
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1. The State of Bihar, through the Secretary, Govt. of Bihar in the
Department of Energy, Sinchai Bhawan, Bailey Road, Patna.
2. The Chief Electrical Inspector, Department of Energy, Govt. of
Bihar, Sinchai Bhawan, Patna.
3. The Chief Electrical Engineer, Department of Energy, Govt. of
Bihar, Sinchai Bhawan, Patna.
4. The Senior Electrical Inspector, Department of Energy,
Mangles Road, Near High Court, Bihar, Patna.
5. The Electrical Inspector, Department of Energy, Mangles Road,
Near High Court, Bihar, Patna.
..... ..... Respondents/Appellants
Versus
Indra Mohan Rai, S/o Sri Ramchandra Roy, resident of Village and
P.O. Banda, via Singhia P.S. Hathauri, District Samastipur, at present
residing under care of Sri U.C. Roy, Mohalla Shivpuri, P.S.
Shastrinagar, District-Patna.
..... ..... Petitioner/Respondent
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For the Appellants : Mr. Mayank Rukhaiyar, Junior
Counsel to Government Advocate-V
For the Respondents : Mr. Chandra Shekhar, Senior
Advocate
Mr. Lalan Kumar Singh, Advocate
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PRESENT
Hon'ble the Chief Justice
&
Hon'ble Mr. Justice Kishore K. Mandal
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Dated, the 27th November, 2008.
The State of Bihar and its functionaries have preferred
this appeal, dissatisfied with the order dated 3rd July, 2007 passed by
the Single Judge whereby the writ petition filed by the present
respondent was allowed; the order of termination dated 1 st September,
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2004 was quashed and the respondents therein (present appellants)
were directed to reinstate the writ petitioner.
2. We shall refer, hereinafter, the present respondent,
„the petitioner" and the present appellants, "the respondents".
3. The petitioner was appointed as Treasury Guard in
the office of Senior Electrical Inspector, Department of Energy, Bihar,
temporarily vide order dated 28th April, 1987. His services came to be
extended from time to time for a period of three months each time for
about two years. Subsequently, vide order dated 26th May, 1989, the
petitioner‟s appointment was extended until further orders. It appears
that by an office order dated 24th November, 1990, the petitioner‟s
services were terminated on the ground of unsatisfactory conduct. The
petitioner challenged the said order before this court by filing writ
petition being C.W.J.C. No. 8331 of 1990. This court allowed the writ
petition on 29th June, 1992. Consequent upon the decision of this
court, the petitioner was reinstated on 27th August, 1992. He
continued in service uninterruptedly. He was given increments from
time to time. The benefits of revised pay scale were also extended to
him from effective dates as and when these benefits were made
applicable. After twelve years of his reinstatement, the petitioner
received a notice dated 14th July, 2004 from the Electrical Inspector
calling upon him why action for terminating his service be not taken
as upon enquiry being made into the appointments by the regional
offices of the energy department, the petitioner‟s appointment has
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been found to be not in accord with the procedure prescribed by the
circular nos. 5920 dated 18th June, 1993, 7639 dated 11th June, 1986
and 593 dated 18th June, 1993. By the said notice dated 14th July,
2004, the petitioner was called upon to give his explanation within
one week from the date of receipt of the notice. The petitioner
responded to the said notice vide his written reply dated 26 th July,
2004. He reiterated that his appointment has been in accord with the
government circulars issued from time to time and that there was no
illegality in his appointment. However, it appears that petitioner‟s
explanation was not accepted and his services were terminated vide
order dated 1st September, 2004. In the order dated 1st September,
2004, three deficiencies in the appointment of the petitioner were
stated namely, (i) that no advertisement was issued prior to the
appointment; (ii) that while making appointment, roster was not
followed and (iii) that the list of eligible candidates was not
requisitioned from the employment exchange.
4. The legality of the order dated 1st September, 2004
was put in issue by the petitioner by filing writ petition being
C.W.J.C. No. 11203 of 2004.
5. The respondents filed counter affidavit in opposition
to the writ petition. The reasons assigned in the order of termination
dated 1st September, 2004 were reiterated justifying petitioner‟s
termination from service.
6. The Single Judge, after hearing the parties, allowed
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the writ petition, set aside the order of termination dated 1st
September, 2004 and ordered petitioner‟s reinstatement. It is this
order of the Single Judge passed on 3rd July, 2007, that is being
impugned in the present appeal.
7. The government counsel contended that the
petitioner‟s appointment was in utter breach of the government
circular no. 16441 dated 31st December, 1980 and since his
appointment suffered from illegality right from inception, no
disciplinary enquiry was necessary. He would submit that length of
service is immaterial where the appointment of an employee is illegal
at the threshold. He relied upon a Full Bench decision of this court in
the case of Awadhesh Kumar Choudhary and ors. Vs. The State of
Bihar and ors. 1987 PLJR 1074.
8. Per contra, Mr. Chandrashekhar, senior counsel for
the petitioner supported the order of the Single Judge. He further
submitted that the controversy in the present case is concluded by a
recent decision of this Court in the case of Ram Krishna Dubey Vs.
The state of Bihar and ors. 2008 (1) PLJR 840 and, therefore, the view
of the Single Judge does not call for any interference.
9. We bestowed our thoughtful consideration to the
entire matter. As regards factual matrix, there is no dispute. That the
petitioner was appointed initially on temporary basis as treasury guard
on 28th April, 1987 is an admitted position. That his services were
extended from time to time and by order dated 26 th May, 1989, his
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services were extended till further orders is also an admitted position.
Although the petitioner‟s services were terminated on 24th November,
1990 on the ground of unsatisfactory conduct but in the writ petition
being C.W.J.C. No. 8331 of 1990 filed by the petitioner, this court
ordered his reinstatement and in fact, he was reinstated. In that writ
petition, it was not the stand of the respondents that the petitioner‟s
appointment was illegal being not in conformity with the circulars
issued by the government from time to time. That he continued in
service thereafter until the order dated 1st September, 2004 came to be
passed, is also an admitted position. That during the period of his
service, the petitioner has been given increments and benefits of pay
revision as and when they became due, is not disputed by the
respondents. These facts lead to irresistible conclusion that the
petitioner was a regular employee with the state government. It was
for the first time after almost seventeen years of his service, that a
notice was sent to the petitioner on 14 th July, 2004 stating therein that
his appointment suffered from illegality as the procedure prescribed in
various circulars namely circular no. 5920 dated 18th June, 1993,
circular no. 7639 dated 11th June, 1986 and circular no. 593 dated 18th
June, 1993 was not followed. In the notice, the specific illegalities or
irregularities in the petitioner‟s appointment are not stated. The
petitioner responded to the said notice and sent his reply on 26 th July,
2004 and then immediately thereafter, the order dated 1 st September,
2004 terminating the petitioner‟s services came to be issued. In the
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order of termination dated 1st September, 2004, non-compliance of
entirely different circular i.e. circular no. 16441 dated 31st December,
1980 is stated and not the three circulars, reference of which has been
made in the show cause notice dated 14th July, 2004. Pertinently, it is
not even alleged either in the show-cause notice dated 14th July, 2004
or the order of termination dated 1st September, 2004 or in the counter
affidavit to the writ petition that petitioner secured his appointment by
perpetrating fraud or misrepresentation. There is not even whisper
that any action has been taken against the officers who were
responsible for not following government circular/s while giving
appointment to the petitioner. It would be travesty of justice if a
permanent employee in the government service for many years, is
terminated from service without following the procedure prescribed in
Article 311(2) of the Constitution of India on a specious plea that the
procedure for appointment prescribed by the government circular was
not followed, more so, in a case where appointee is not alleged to
have committed any wrong or fraud or that he secured appointment by
some misrepresentation. The position would be different where the
appointee is a temporary employee.
10. We, thus, find that the order of termination dated
1st September, 2004 suffers from wholesome violation of the
procedure which is required to be followed by virtue of Article
311(2) of the Constitution of India and, therefore, the Single Judge did
not commit any error in setting aside the said order.
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11. The decision of this court by the Full Bench in
Awadhesh Kumar Choudhary lays down that in a case where initial
appointment to temporary post was ab initio invalid, no notice or
opportunity of hearing was mandatory. There cannot be any quarrel
with this proposition. However, the Full Bench decision in Awadhesh
Kumar Choudhary has no application to the present fact situation as
the petitioner was a permanent employee in the government service.
As a matter of fact, the present case is covered by a recent Division
bench judgment in the case of Ram Krishna Dubey (supra) wherein
the identical issue was involved. The Division Bench, in the case of
Ram Krishna Dubey, considered the matter thus:
"2. The relevant facts about the service of the
petitioner-appellant are that he was appointed on urgent
temporary basis on 16th March, 1985 for a period of three
months which continued through extensions granted from
time to time. By order dated 17th August, 1989 the
petitioner-appellant was regularly employed by
absorption in L.M. High School, Bhagwanpur and was
assigned seniority with effect from that date. Thereafter,
in terms of the Bihar Government Order dated
13.11.1981the petitioner-appellant was given a time bound promotion in the Selection Grade by order dated 23rd November, 1995. It appears that on 21.6.1999 on the basis of certain Audit Objection the petitioner-appellant was required to show whether at the time of his appointment provisions relating to giving appointment has been followed or not and whether his appointment is not contrary to any of the provisions laid for such appointments and that if satisfactory reply is not given within eight days his services will be liable to be terminated. A second letter was issued on 4.9.1999 and on 10.1.2000 a show cause notice was given to him. After considering reply to show cause notice his appointment is found to be illegal and irregular including that at the time of his appointment he had crossed the upper age limit.
3. However, there was no allegation that in any of -8- the irregularities pointed out, including about date of birth, the petitioner-appellant was instrumental or concealed any materials required to be disclosed by him . Yet a show cause was given why his services be not terminated and, ultimately, by the impugned order in the writ petition, his services were terminated.
4. The counter was filed supporting the order stated therein, namely, that since the initial appointment was not in accordance with the procedure laid, his services cannot be continued.
5. The learned single Judge has dismissed the writ petition principally on the ground that original appointment was given without advertisement and publicity. In the close of the judgment a passing observation was made that it further appears that he had forged his appointment letter.
6. It appears that whole contention and the stand taken by the respondent-State were for considering the matter from the point of view for regularization a person who has been continuing long in service as a temporary hand.
7. Having considered the facts and circumstances, which have been brought before us, as noticed above, it is clear that the petitioner-appellant has already been regularized on 17.8.1989 by absorption. Nothing has been said or alleged about invalidity of order dated 17.8.1989 as a result of which the petitioner-appellant had become permanently absorbed and thereafter his services could have been terminated only in the manner the services of a permanent civil servant can be dispensed with.
8. From the show cause notice or from the impugned order nowhere it is shown any complicity of the petitioner-appellant about any misrepresentation on the part of his being eligible or qualification or complicity in taking appointment letter by any illegal means has been alleged. Apparently all matters directed to the petitioner-appellant for show cause related to some body else. Whether any notice was issued or ought to have been issued is not within the domain of the incumbent. Whether a person who has disclosed his correct age and could have been given appointment by relaxation is also a matter which is not answerable by the incumbent. No misconduct has been alleged or fraud to -9- have been committed on the part of incumbent in any manner.
9. A permanent employee‟s services can only be terminated by following the procedure laid in Rules for removal of a permanent employees and that procedure must be accorded within Article 311(2) of the Constitution. There being no misconduct on the part of the petitioner-appellant and there being no allegation or finding by any competent authority about any misconduct on the part of incumbent in securing appointment, the termination order of permanent employee as has been made in the case cannot be sustained.
10. The judgment under appeal also appears to be on the premise as if the case is for considering regularization. The reference to Uma Devi‟s case (Secretary, State of Karnataka Vrs. Uma Devi (3) and Others : (2006(2) PLJR (SC) 363; and Verma‟s case (State of M.P. and Others Vrs. Lalit Kumar Verma; (2007) 1 S.C.C. 575) are pointer to that. The present case being not a case of claim of regularization but the termination of a permanent employee, in our opinion, both the decisions are not applicable to the present case.
11. So far as the observation of the learned Judge that it appears that the petitioner had forged his appointment letter is not sustainable without holding any enquiry with such allegation in accordance with rules. The forging of appointment letter is a grave misconduct and this cannot be assumed without holding proper enquiry.
12. Since the order of termination resulting in termination of the petitioner-appellant from service has taken place contrary to any provision known for termination of a permanent employee, the termination order cannot be sustained."
12. We find ourselves in respectful agreement with the view expressed by the Division Bench of this court in the case of Ram Krishna Dubey. The view taken by the Single Judge is in conformity with the aforesaid view.
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13. Letters Patent Appeal, accordingly, has no merit. It is dismissed with no order as to costs.
R. M. Lodha, CJ Kishore K. Mandal, J Anil/