Patna High Court - Orders
The State Of Bihar & Ors vs Binay Kumar Singh on 29 March, 2011
Author: T. Meena Kumari
Bench: T. Meena Kumari
IN THE HIGH COURT OF JUDICATURE AT PATNA
LPA No.230 of 2011
1. THE STATE OF BIHAR
2. The Commissioner and Secretary, Health Department, Government of Bihar,
Patna.
3. The Director in Chief, Health Services, Bihar, Patna.
4. The Additional Director, Health Services Family Welfare, Bihar, Patna.
5. The Regional Deputy Director, Health Services, Darbhanga/Civil Surgeon-
Cum- Chief Medical Officer, Samastipur.
6. The Incharge Medical Officer Primary Health Centre Patori District
Samastipur.
................................Appellants/ Respondents.
Versus
BINAY KUMAR SINGH, Son of Shri Awadh Bihari singh, Resident of
Village Kurpat, Post Office Parghari, Police Station Sabaur, District
Bhagalpur.
...............................Respondents/ Petitioners.
with
LPA No.224 of 2011
1. THE STATE OF BIHAR through the Chief Secretary, Government of Bihar,
Patna.
2. The Secretary, Health Department, Government of Bihar, Patna.
3. The Director in Chief, Health Department, Government of Bihar, Patna.
4. The District Magistrate, Araria, District Araria.
5. The Civil Surgeon Cum Chef Medical Officer, Araria, District Araria.
...........................Appellants/ Respondents.
Versus
MD.ALAM, Son of Md. Yasin, resident of village Dumaria, P.O. P.T.
Dumaria, P.S. Mahalgaon, District Araria.
.............................Respondent/ Petitioner.
with
LPA No.298 of 2011
1. THE STATE OF BIHAR
2. The Commissioner Cum Principle Secretary, Health Department, Govt. of
Bihar, Patna.
3. The Director in Chief, Health Services, Govt. of Bihar, Patna.
4. The Assistant Director, Health Services (Filaria Control) Swasthya Bhawan,
Sultanganj, Patna-5.
........................Respondents/ Appellants.
Versus
1. VIJAY NARAYAN SINGH, son of Late Vishnu Narayan Singh, resident of
mohalla Dr. Narayan Prasad Lane Math, Laxmanpur, P.S. Alamganj, District
Patna-7.
2. Deepak Kumar Singh, son of late Kemeshwar Prasad Singh, resident of D/12,
Mitra Mandal Colony, Saket Vihar, Near Karori Chak, P.S. Phulwarisharif,
District Patna.
3. Sarfuddin Ahmad, son of Md. Juhi, resident of mohalla Nuranibagh Colony,
5/A Police Station, Alamganj, District Patna.
4. Bharat Prasad Son of Dhaneshwar Mandal, resident of mohalla Mainpura
(Rajapur) P.S. Patliputra, District Patna.
........................Petitioners/ Respondents.
2
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For the Appellants in L.P.A. Nos.230/2011 & 224/2011: Mr. D.K. Sinha, Sr.Adv.
Mr. Sudhir Kumar, A.C. to A.A.G.2
For the Respondents: Mr. Surendra Kishore Thakur, Advocate
Mr. S.P. Paraser, Advocate
.............
3 29.03.2011In view of the reasons contained in the affidavit in support of the limitation petitions and having heard counsel for other sides, the delay in filing of these appeals is condoned.
These appeals have been filed by State of Bihar and others being aggrieved by the order dated 6.10.2009 passed by the learned Single Judge in C.W.J.C. No.7500 of 2009 and other analogous cases.
The writ petitions have been filed by the petitioners, respondents herein questioning the order of termination of services of the writ petitioners on the report submitted by the Five Men Committee constituted under the direction of the High Court in L.P.A. No.946 of 2003. It is also contended that the report has put the services of the employees in three categories, irregular, illegal and forged. He has further submitted that the petitioners, respondents herein who have been treated either illegal or in forged category, were recommended for termination of their services.
The facts of the case before the learned Single Judge was that the petitioners were appointed long back right from 1969 to 1987 and after continuing in services for long time they were terminated from services and payment of salary paid to them were held to be illegal by the authorities who were not competent to 3 take such decision. It is further stated that in some of the cases it has been said that the appointments were not made against the sanctioned posts after following the procedure for regular and legal appointment and therefore such appointments are illegal. In some of the cases it is said that the appointment letters on the basis of which petitioners were appointed were not issued from the office of those authorities who are said to be the appointing authority and therefore the appointments made on the basis of such appointment letters have been treated to be forged.
A counter affidavit has been filed by the State of Bihar before the learned Single Judge, stating therein, that when question of their appointments were subjected to an enquiry and salary of some of the writ petitioners, respondents herein were withheld, they approached this Court for a direction to pay their salaries by filing different writ petitions, upon which a direction was issued by this Court for payment of salary as there was no adverse finding against the genuineness or legality of their appointment. It was also further contended that the enquiry has proceeded in almost all the cases and the termination order was issued in most of the cases on the ground that on the basis of forged letters appointments were made and also on the ground that the appointment letters were issued by the incompetent authority against the unsanctioned posts and also that the appointments were made without observing the selection process and without advertising the posts.
4
The aforesaid action of the State Government terminating the services of the writ petitioners, respondents herein was subjected to challenge by filing different writ applications, one of which is C.W.J.C. No. 4702 of 2003. It has further been contended before the learned Single Judge that in some of the cases in which termination orders were not quashed, L.P.A. has been filed. Appeals were also filed by the State against the orders quashing termination orders. The L.P.As and the pending writ petitions have been heard together and the L.P.A. No.946 of 2003 and other analogous cases were disposed of by this Court.
The point for determination before the Court was with regard to continuing in serving of the writ petitioners for a several periods including the equity and in some of the cases age of the writ petitioners for new appointment had expired.
The batch of the cases were disposed of by this Court without going into the merits of the case and a direction was issued to the State Government to decide the cases of the writ petitioners, respondents herein in the light of the judgment of the Apex Court in the case of „Secretary, State of Krnataka Vs. Uma Devi & Ors' reported in in 2006 (2) P.L.J.R. (SC) 363. It was also made clear that in case of irregular appointment, steps be taken to regularize services of such irregularly appointed employees as one time measure and so far as the cases coming in the category of illegal and forged, no steps is to be taken for their continuation in service. There was also further direction that in 5 case the irregularly appointed employees have worked for ten years or more against a duly sanctioned post, their services be regularized by initiating a process for regularization within six months from the date of judgment. There was further direction to constitute a committee for holding an enquiry.
In pursuance of direction of this Court in L.P.A. No.946 of 2003 and other analogous cases the State of Bihar, Department of Health Constituted five men committee for examining the nature and status of appointments of the affected persons. During pendency of the aforesaid L.P.A. the State Government has also undertaken to constitute a three men committee to find out the status of similarly situated persons. This Court had directed the Committed to submit its report within a period of six months, but the report was not submitted by the Committee within the time fixed by this Court even though time was extended for further period of three months, but the Committee did not complete the enquiry within the extended time and the same was continued for a longer period. During pendency of the enquiry Chairman of the Committee was changed and two of its member abstained from participating in the enquiry and they did not sign on the enquiry report. Final report signed by three men Committee was submitted as report of five men committee. It is further contended that on the basis of the said report the writ petitioners, respondents herein were either issued termination letters or simply they were restrained from discharging their duty. 6 In some of the cases despite enquiry report, their services were treated as illegal or forged, although they were still continued in service as the concerned Civil Surgeon treated them as genuinely appointed. In other cases though petitioner‟s earlier termination order had been quashed by this Court but they were not allowed to join on account of pendency of the appeal. It was further contented that even though some of the persons were directed to be reinstated in service but were not allowed to be reinstated. Some of the persons in the light of this Court‟s order had been allowed to join, but after submission of the enquiry report they were removed from their services.
The said report was subjected to be questioned in the writ applications against which the present L.P.As. have been filed. It has been submitted on behalf of the writ petitioners, respondents herein that the report was not submitted by the Five men Committee and therefore it cannot be treated as a report of the Five men committee as it has been signed only by three members and rest two members abstained themselves from enquiry and the enquiry was conducted in a most illegal and arbitrary manner. It is said that two members of the committee were opposed the manner of enquiry and also refused to sign upon the enquiry report as such according to the counsel for the petitioners they were terminated from their services on the basis of a report which has not been prepared after holding a proper enquiry. Accordingly, submission of counsel for the petitioners, respondents herein is that the 7 enquiry was not conducted as per direction of this Court.
The learned Single Judge after going through the materials on records and also taking into account the contention raised by the counsel for the writ petitioners, respondents herein in different writ petitions and having heard the learned A.A.G.2, who contended that the enquiry report was submitted as per guidelines given by this Court, has observed that in most of the cases the petitioners were continuing on the post for more than 15, 18 and 20 years and they were continued without any interim orders of this Court or the Tribunal. The appointments were sought to be termination after they were remained in service for more than ten years. The leaned Single Judge has further observed that the appointments of the writ petitioners, respondents herein was treated to be illegal on the basis of the enquiry report without disclosing any reasons, inasmuch as, opportunity of hearing also was not extended to them. The learned Single Judge has further observed that the writ petitioners, respondents herein were not noticed individually with regard to the enquiry conducted and without giving an opportunity of being heard termination order was issued which is in violation of principles of natural justice. The learned Single Judge has further observed that the valuable right which has accrued in favour of the petitioners on account of their appointment and continuation for such a long time, in my view, could not have been taken away in such an arbitrary and illegal manner. At least the petitioners were entitled to have an 8 opportunity to place their individual cases. In case of given opportunity, whatever would have been the result, at least no allegations could have been made of any violation of rule of natural justice by the petitioners. The allegations, I find to be correct, as an important and valuable right could not have been taken away in such an arbitrary manner. It was further observed by the learned Single Judge that in such cases termination order could have been issued only after proper enquiry and not without any notice to the incumbent to defend the charges framed against them.
Having found that the enquiry report has been prepared in a complete violation of principles of natural justice, the learned Single Judge has observed that the authorities have failed to consider the enquiry report in relation to the persons who were appointed after observing legal procedure in accordance with the Government circulars. Having found so, the learned Single Judge has quashed the enquiry report as also the subsequent letters of termination issued by the Civil Surgeon or any other authorities and a direction was issued to the authorities to reinstate their services on the posts on which they were working with all consequential benefits.
Being aggrieved by the same these L.P.As have been filed and these matters have been listed before this Court for hearing on merits of the case.
Learned A.A.G.2 has contended that the appointments 9 of the writ petitioners, respondents herein were made commencing from the year 1969 to 1987 on different period of time, but as the State has come to a conclusion that the writ petitioners, respondents herein were appointed in an irregular manner, they were subjected to termination on the basis of the enquiry report but the learned Single Judge has quashed the enquiry report on the ground of violation of natural justice and a direction was also given to the authorities to reinstate the petitioners in service with all consequential benefits.
The learned counsel appearing on behalf of the writ petitioners, respondents herein has contended that even though there was a direction of this Court to constitute a Five men committee that committee could not submit its report within the time fixed by this Court although the time fixed by this Court was also extended from time to time. That apart, the said enquiry report was signed only by three members and two members of the committed was abstained from signing the same in view of absurd enquiry and action was taken on the basis of the said enquiry report which was signed only by three members and during course of enquiry the respondents were not given an opportunity of being heard so as to defend their case. Secondly, the copy of the said enquiry report was never supplied to the writ petitioners, respondents herein and also no notice was issued to them before conducting the enquiry so as to enable them to participate in the enquiry, but before that on the basis of the enquiry report the 10 authorities have passed orders terminating the services of the writ petitioners, respondents herein. Hence, counsel for the writ petitioners, respondents herein has supported the order passed by the learned Single Judge by putting the argument as stated above.
We had the occasion to go through the orders passed by the learned Single Judge. The facts remains that in almost all the cases appointments were made in the years 1969 to 1987 on the different dates itself and as the petitioners are more in numbers the present common order is sought to be passed in these cases.
It has to be observed that as the appointments of the writ petitioners, respondents herein have been made more than ten years back and they have been allowed to work continuously for more than ten years as such the order of termination issued by the appellant without giving an opportunity of hearing to the petitioners in the enquiry conducted by the appellants, the same is illegal in view of the observation made in the judgment of the Apex Court in the case of Uma Devi (Supra). The fact remains that the writ petitioners, respondents herein have not approached this court or the Tribunal for any interim order to protect their services. In this connection reference may be made to the judgment of the Apex Court in the case of „State of Karnataka & Ors Vs. M.L. Kesari & Ors' reported in (2010) 9 SCC 247 in which in paragraph- 11 the Apex Court has observed as follows:-
"The object behind the said direction in para 53 of Umadevi is two fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of court or tribunals, before the date of 11 decision in Umadevi was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/ instrumentalities do not perpetuate the practice of employing persons on daily wage/ ad hoc/ casual basis for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one time measure."
In view of the law laid down in the case of M.L.Kesari (Supra), the order or termination issued against the writ petitioners, respondents here cannot be said to be legal as they have been worked continuously for more than ten years without the protection of any interim orders of the Court or Tribunal. Further there is no material placed before us which shows that the enquiry report was signed by five members of the committee, as directed by this Court. That apart, the writ petitioners, respondents herein were not given an opportunity of hearing in the enquiry conducted in pursuance to the order of this Court, as such we are of the opinion that the order of termination issued against the petitioners, respondents herein is in violation of principles of natural justice.
The learned Single Judge has held that the enquiry 12 report was signed only by three members of the committee and in absence of signature of rest of the two members of the committed the said report cannot be acted upon in a proper manner as directed by this Court. It has further been held by the learned Single Judge that no notice was served upon the petitioners to appear in the enquiry so as to defend their cases and only on the basis of the said enquiry report the termination letters were issued to the petitioners which is in violation of the principles of natural justice. The learned Single Judge has further held that as the petitioners were worked continuously for more than the period of ten years therefore in view of law laid down by the Apex Court, services of the petitioners cannot be terminated without giving an opportunity of hearing to the petitioners.
In that view of the matter, following the law laid down by the Apex Court in the case of M.L. Kesari (Supra), we are not inclined to interfere with the order of the learned Single Judge.
Accordingly, all the appeals stand dismissed.
( T. Meena Kumari, J.)
Abhay Kumar (Dr. Ravi Ranjan, J.)