Patna High Court
State Of Bihar And Ors. vs Mahboob Alam [Alongwith L.P.A. Nos. 23 ... on 1 February, 1995
Equivalent citations: 1995(2)BLJR777
Author: Ashok Kumar Ganguly
Bench: K. Venkataswami, Ashok Kumar Ganguly
JUDGMENT Ashok Kumar Ganguly, J.
1. All these Letters Patent Appeals have been filed challenging, inter alia, the judgment of a learned Single Judge dated 26.2.1993 passed in C.W.J.C. Nos. 2085 of 1990 and 3791 of 1990, Since they arise out of one and the same judgment and raise common questions, they have been heard together and are being disposed of by one judgment.
2. The facts of the case are as follows:
In terms of an advertisement made for appointment of constables in the district of Jehanabad, several persons including the writ petitioners applied and ultimately appeared before the selection committee. The selection committee held its proceedings between 17th October, 1989 and 19th October, 1989 and conducted various tests and verifications. Thereafter the selection committee prepared a panel of 105 persons who were declared fit for appointment, a copy of the selection list has been enclosed with the writ petitions. Out of the said list containing names of 105 persons, 87 persons were appointed to the post of Constables pursuant to the appointment letters sent to them by the authorities. The remaining 18 persons were not served with the appointment letter and as such they could not join the said post.
3. After 87 persons joined the posts and worked on the said posts for some time, the services of all the 87 persons were terminated on certain complaints having been received to the effect that the selection proceeding has been vitiated by manipulations and illegalities.
4. Those 87 persons challenged the order of termination by filing two writ petitions as mentioned before, and both were heard together by the learned Single Judge. By his judgment and order dated 26.2.1993 the learned Single Judge, inter alia, was pleased to hold that the complaints made by the writ petitioners about lack of opportunity of hearing before termination of service is not sustainable. However, his Lordship was pleased to rely on the report of a re-test in respect of 62 writ petitioners who were subjected to further test and check up and had been found suitable for appointment. On the basis of that report, the learned Single Judge, Inter alia, held that 62 candidates who have succeeded in the re-test should be allowed to join immediately and the writ petitions, so far as those persons were concerned, were allowed.
5. These four Letters Patent Appeals have been filed against that Judgment of which two were filed by the State of Bihar being L.P.A. Nos. 22 and 23 of 1993 and two were filed by those private parties whose case the learned Single Judge rejected. These are L.P.A. Nos. 24 and 25of 1993.
6. The case of the appellant State authorities is that on 23.3.1990 by letters issued by the A.I.G. Welfare it was decided to terminate the services of all the 87 writ petitioners with immediate effect. The main allegations against the selection are (a) that the selection committee was not properly constituted, (b) in the candidates' register chest measurement which appeals to have been taken and recorded is in excess of the real measurement in regard to the same candidate. It was found that in the master chart that the measurement of chest and height was actually below the measurement as found in respect of some candidates, (c) another allegation was that proper policies relating to reservations have not been followed in the matters of such appointments, (d) there was general allegation of manipulation and nepotism on behalf of some members of the selection committee.
7. All these Letters Patent Appeals were directed to be heard together and from time to time various interim orders were passed. Ultimately on 8.9.1993 an order was passed by a Division Bench of this Court which recites the factual aspects of the case and it has been recorded therein that the said order is not objected to by any of the parties. In the said order dated 8.9.1993 the learned Judge of the Division Bench were pleased to observe as follows:
Having heard the learned Counsel for the parties, we pass the following Order but in order to see that this order is complied with, we are not finally disposing of this matter at this stage. As already stated, this order is acceptable by all the parties appearing before us.
The order of termination of services of 87 persons are hereby set aside. However, having regard to the serious allegations made it is not fit and proper that they should be allowed to join their service immediately because we have not gone into the merits of the allegation regarding such interpolation manipulation etc. Accordingly, having setting aside the dismissal orders the State Government is entitled to proceed according to law by taking a decision afresh after giving an opportunity to be heard to the said 87 persons who had joined pursuant to such appointments. Accordingly, for the purpose of notice to the said 87 persons, it is directed that such notice should be given to eighty seven persons individually through their Advocates in the High Court.
We appoint Mr. G. Achari, Zonal I.G. Chhotanagpur having his office a Ranchi as Special Officer. He shall perform the duty assigned by this order with the help of such officers as he may like, so far the preliminary paper work is concerned but ultimate decision is to be taken by him. In respect of each of 81 persons, a notice specifying the allegations in respect of his appointment shall be given to each of them individually through their Advocate appearing in the writ petition. Such notice has to be given after scrutiny of the allegations as to which appointment in respect of which candidate was vitiated by what kind of manipulation or interpolation or any other irregularity and specifying the same in the individual notices as far as each candidate. For this purpose we allow one month's time. Such notice is to be issued by 8th of October, 1993 and will be served on Mr. Teg Bahadur Singh, learned Advocate for the writ petitioners. After receipt of the same, they must submit show cause by 31st October, 1993 and the decision regarding the same shall be taken from time to time by speaking orders in respect of each persons but this must be completed by 30th of November, 1993. The final decision in respect of each persons as taken by Mr. Achari shall be communicated to those persons individually through Mr. Teg Bahadur Singh, learned Advocate.
It is recorded that such finding shall be binding on all parties including the State Government and all of them shall act pursuant thereto on the basis of such finding, subject to any variation which may be made by this Court, we shall ultimately dispose of these four appeals with or without any consequential order which we may think fit and proper after hearing the learned Counsel for the parties.
In this context, we would also like to know whether on the basis of such allegation of manipulation, interpolation etc. any action has been taken against the officers/employees concerned who were responsible for the same. Learned G.P. VIII is directed to inform this Court in this regard. For this purpose, this matter is adjourned for one week. Certain explanation is sought to be offered by learned G.P. Vll but we want them to be placed by way of affidavit to be affirmed either by the D.G.P. or the Secretary-Commissioner of the department concerned.
8. The writ petitioners having agreed to the said procedure of resolution of the dispute, which is certainly not the adversial procedure, the Division Bench not only directed the same Regional Inspector General of Police, Chhotanagpur Region, Ranchi Mr. G. Achari to ellicit facts but also to arrive at findings which will bind all the parties Under the said order it is left to this Court only to make certain variation and pass consequential orders. However, as the said order is an interlocutory one, this Court, while finally deciding these appeals, is not precluded from examining the matter in some details and we do so accordingly.
9. Pursuant to the said order notices were issued by the said Mr. G. Achari, Inspector General of Police, Chhotanagpur Region, Ranchi (hereinafter called the said I.G.). From a perusal of various show cause notices issued by him it appears that the allegations are mostly about discrepancies between the recording of height and chest measurement in the master chart and in the Candidates' register and also about discrepancies in the matter of date of birth of the candidates between the master chart and the Candidates' register. A further common allegation is that the written test which is an essential requirement for selection, was not held in respect of most of the candidates. In some cases, the allegations are that government instructions regarding reservations for Scheduled Caste and Scheduled Tribes candidates were not followed and as such the selection procedure has been vitiated. In some cases, the allegations are that the selection proceedings got vitiated as medical examination was not completed prior to the appointment. To all such show cause notices, replies have been given by the candidates.
10. In the replies which have been given by the writ petitioners, a prayer was made that in order to effectively controvert the charges levelled against the writ petitioners in the show cause notices, copies of documents on the basis of which charges were made may be made available to them. In fact the following assertion has been made in most of the replies given to the show cause notices:
On what basis show cause has been issued and which documents have been relied upon is not clear from the notice. Therefore, it is requested that kindly supply copies of all those documents On which show cause notice has been issued to me, so that I may be able to submit effective show cause for your consideration.
11. The said I.G; in answer to the aforesaid demand for supply of documents directed the writ petitioners to go to Ranchi and peruse the documents there. Most of the petitioners reside within the district of Patna or Vaishali or Bhojpur or Darbhanga. The distance between the aforesaid places and the Headquarters at Ranchi, where the documents were kept, is about 400-500 Kms. So to ourmind, the said I.G. acted unreasonably by asking the writ petitioners, who were financially not at all solvent, to go to Ranchi for the purpose of inspection of those documents. In fact in one such representation made by one of those writ petitioners, it was stated as follows:.
I am not getting salary since 28.3.1990. I am extremely poor. I have not got sufficient means to maintain myself, so I am not in a position to go to Ranchi from my home place. Therefore, I am not in a position to contest proceeding without getting salary. So salary may kindly be paid from 28.3.1990 to up-to-date, since order of cancellation of appointment of mine has been quashed by the Hon'ble Court.
12. In the background of this demand for supply of documents and the explanation given by the writ petitioners showing their inability to go to Ranchi, the refusal to supply documents to the petitioners on the basis of which charges against them are based is a clear instance of violation of the basic tenants of natural justice. I am compelled to come to this conclusion in view of the fact that the said I.G. while considering the prayer for supply of documents has not held that the documents are irrelevant or have no bearing to the charges but have held that the documents cannot be supplied to the writ petitioners at his place of residence.
13. It is incumbent upon the authorities while terminating the services of the employees on the basis of certain charges to disclose and make available those documents on which the said charges are based. The said requirement is a basic requirement of the principles of natural justice. Even though Article 311(2) of the Constitution of India may not be strictly applicable in this case but the principles governing the same, namely, reasonable opportunity of hearing must be afforded to the persons concerned whose services are thus sought to be terminated on the basis of a finding arrived at by the said I.G. The principles of natural justice are not, as has been aptly said, 'engraved on tablets of stone' but those principles are to be moulded and fashioned having regard to the requirements of fairness of the particular cast.
14. In the instant case, after obtaining appointment through selection and interview and after haying joined on the basis of the said selection, the writ petitioners' appointment are sought to be terminated on the ground of allegations to the effect that the selection proceedings have been vitiated. Here one of the main allegations is discrepancy between the chest and height measurement. The discrepancy of chest and height measurement has been recorded in master chart and the candidates' register. Therefore, before any finding is arrived against the petitioner on the basis of those documents, copies of the same, must be made available to the writ petitioners. By asking the petitioners to go to a place which is about 400 to 500 Kilometers away from their residence to inspect those documents, the said I.G. has not acted either fairly or reasonably. In the celebrated decision in Mutter v. Eastern and Midlands Railway Co. reported in XXXVIII Chancery Division page 92 a question came up about the right of inspection which by Section 28 of the Companies Clauses Act, 1863 is given to mortgagees, bondholders, debenture stock holders, shareholders and stock holders of the Company. While construing the said provision, Lord Justice Lindley, sitting in appeal from the order passed by the learned Single Judge was pleased to observe as follows:
When the right to inspect and take a copy is expressly conferred by statute the limit of the right depends on the true construction of the statute. When the right to inspect and take a copy is not expressly conferred the extent of such right depends on the interest which the applicant has in what he wants to copy, and on what is reasonably necessary for the protection of such interest.
Further in the said judgment the learned Law Lord, while considering Section 36 of the Act of 1845, has been pleased to observe as follows:
Section 36 of the Act of 1845, which enables judgment creditors of the company to inspect the register of shareholders, would be practically useless if it were construed strictly, and so as not to include a right to take copies.
*** *** *** *** *** *** *** *** *** *** Similar observations apply, though less forcibly, to Section 45 of the Act of 1845 and Section 28 of the Act of 1863. But it is obvious that a shareholder or debenture stock holder may desire to consult the whole of the debenture stockholders on some matter which concerns them all, and it is reasonable to suppose that the right to inspect the debenture stock register is conferred to enable him to do this as well as for other purposes. Parliament having conferred the right to inspect, the Court ought not so to construe the statute as to render the right conferred illusory, and if the Court were to hold that in such a case as the present the right to inspect existed but the right to take copies did not, the Court would in effect by rendering the statute of no avail.
15. In this case, however, there is no statutory right to inspect but here the interest of the writ petitioners is so fundamentally connected with livelihood that the Court ought to read that in the right to inspect also a right to take copies of the documents in question is implicit. Therefore, the principles enunciated in the said judgment would also apply in the present case.
16. The Supreme Court also in the case of Kashinath Dikshita v. Union of India and Ors. has been pleased to hold, in the facts and circumstances of that case, even though the disciplinary authority gave a delinquent chance to inspect the documents and take notes but even then the requirements of the appellants to have the help of the Stenographer coupled with the non-supply of statements and documents resulted in a failure if the principles of natural justice and the inquiry was quashed. Here the offer of inspection given to the petitioners is virtually an illusory one and the same would amount to denial of the opportunity to inspect and take copies of the documents on which the charges against them have been passed. As such the purported inquiry by the said I.G. has been held in an unfair manner.
17. Apart from that under Rule 66.3 of the Bihar Police Manual, the required measurement for such appointment is 163 Cms. in height and 80 Cms. in chest and for Scheduled Caste and Scheduled Tribes candidates 158 Cms. in height and 78 Cms. in chest. In the show cause notices issued to the writ petitioners, it appears that in most of the cases the height and chest measurement which have been recorded either in the master chart or in the candidates register are above 163 Cms. and 80 Cms. For this purpose reference may be made to the show cause notice issue to Sohan Kumar Singh, which is annexed at page 19 of the supplementary counter-affidavit, another show cause notice issued to Shankar Prasad Roshan which is annexed at page 21 of the said supplementary counter-affidavit, another show cause notice issued to Umesh Kumar Singh which is annexed at page 23 of the said supplementary counter-affidavit and another one issued to Sri Rama Shankar Tiwary which is annexed at page 25 of the said supplementary counter-affidavit. In all these cases, the measurement of chest and height which has been recorded either in the master chart or in the candidates' register is above the required measurement under the rules. As such it will not be fair to say that because of such inaccuracy in recording the chest measurement, the appointment is vitiated inasmuch as the persons concerned satisfy the requirement under Rule 663 of the Bihar Police Manual, 1978. The authority in passing the impugned order has not taken into consideration the aforesaid fact, namely, the required height and chest measurement under the Bihar Police Manual.
18. The finding of non-holding of written test in the course of the said selection has also not been arrived at fairly inasmuch as in any of the replies to the show cause notices, for instance the one given by Hari Lal Chaudhary disclosed at page 561 of the said supplementary counter-affidavit, it has been stated that the written test has been held by the Zonal I.G. Mr. K.A. Jacob who has reported in Paragraph 13 of his report that all the candidates were found literate. In that view of the matter before any finding is arrived at by the said I.G. to the effect that the written test has not been held, it is incumbent upon him to examine Mr. K.A. Jacob with reference to his report and in the presence of the writ petitioners and then giving the petitioners an effective opportunity of cross examining Sri Jacob, if necessary. Nothing of the kind has taken place before the said I.G.
19. The minimum requirements of the principles of natural justice is when a finding is arrived at contradicting the positive stand taken by the persons proceeded against in their explanation to the charges, the veracity of the said explanation must be judged factually and in the presence of the persons proceeded against. Apart from that, in the case an oral inquiry should have been held by the said I.G. for giving opportunity to the writ petitioners to record their say in support of their replies given to the show cause/charges. Admittedly these things have not been done by the said I.G. before submitting his report.
20. Therefore, the inquiry as held by the said I.G., pursuant to the interlocutory order of this Court dated 8.9.1993, cannot be said to be either a just, reasonable or a fair inquiry. This Court is taking this view solely because of the reason that the fair holding of the said inquiry has a direct bearing on the employment of the petitioners.
21. The Supreme Court has held repeatedly that deprivation of employment amounts to deprivation of livelihood which right is implicit under Article 21 of the Constitution of India. When that right is affected in a proceeding, as in this case, the said procedure must be just, reasonable and fair. Reference in this connection may be made to the decision of the Supreme Court in the case of D.K. Yadav v. J.M.A. Industries Limited . The relevant portions at Paragraphs 13 and 14 are set out below:
13. In Delhi Transport Corpn. v. D.T.C. Mazdoor Congress this Court held that right to public employment and its concomitant right to livelihood received protective umbrella under the canopy of Articles 14 and 21 etc. All matters relating to employment include the right to continue in service till the employee reaches superannuation or until his service is duly terminated in accordance with just, fair and reasonable procedure prescribed under the provisions of the Constitution and the rules made under proviso to Article 309 of the Constitution or the statutory provisions of the rules, regulations or instructions having statutory flavour. They must be conformable to the rights guaranteed in Part III and IV of the Constitution. Article 21 guarantee right to life which includes right to livelihood, deprivation thereof must be in accordance with just and fair procedure prescribed by law conformable to Articles 14 and 21 so as to be just, fair and reasonable and not fanciful, oppressive or at vagary. The principles of natural justice are an integral part of the guarantee of equality assured by Article 14. Any law made or action taken by an employer must be fair, just and reasonable. The power to terminate the service of an employee/workman in accordance with just, fair and reasonable procedure is an essential in built of natural justice. Article 14 strikes at arbitrary action. It is not the form of the action but the substance of the order that it is to be looked into. It is open to the Court to lift the veil and gauge the effect of the impugned action to find whether it is the foundation to impose punishment or is only a motive. Fair play is to secure justice, procedural as well as substantive. The substance of the order is the soul and the effect thereof is the end result.
14. It is thus well-settled law that right to life enshrined under Article 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put fourth his case is given and domestic inquiry conducted complying with the principles of natural justice.
22. It is, therefore, clear that by agreeing to be governed by the findings of the inquiry by the said I.G. the petitioners agreed to a fair inquiry inasmuch as the rights to a fair inquiry before the termination of service is a fundamental right and is part of the guarantee under Articles 14 and 21 of the Constitution of India.
23. Supreme Court has also held in the judgment in the case of Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors. that there can be no waiver of fundamental right. No Individual can barter away the fundamental right conferred upon him under the Constitution. In Paragraph 28 of the said judgment, the Constitution Bench of the Supreme Court has been pleased to hold as follows:
Fundamental rights are undoubtedly conferred by the Constitution upon individuals which have to be asserted and enforced by them, if those rights are violated. But the high purpose which the Constitution seeks to achieve by conferment Of fundamental rights is not only to benefit individuals but to secure the larger interest of the community. The Preamble of the constitution says that India is a democratic Republic. It is in order to fulfil the promise of the preamble that fundamental rights are conferred by the Constitution, some on citizens like those guaranteed by Articles 15, 16, 19, 21 and 29 and some on citizens and non-citizens alike, like those guaranteed by Articles 14, 21, 22 and 25 of the Constitution. No individual can barter away the freedoms conferred upon him by the Constitution. A concession made by him in a proceeding, whether under a mistake of law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceedings. Such a confession, if enforced, would defeat the purpose of the Constitution.
24. Therefore, it cannot be said that as a result of the interim order passed by this Court on 8.9.1993, the writ petitioners cannot be allowed to urge their fundamental right implicit under Articles 14 and 21 of the Constitution of India, namely, the right to fair inquiry before termination of their services. In that view of the matter, this Court holds that it is still open to the writ petitioners, despite the said order dated 8.9.1993, to urge that the inquiry held by the said I.G. does not meet the requirement of reasonableness and fairness. These points have been urged by them in the supplementary counter-affidavit filed by them on 25.1.1994 in L.P.A. Nos. 22 and 24 of 1994. Submissions have also been made assailing the findings of the said I.G. which have been annexed to the said supplementary affidavit.
25. Learned Counsel for the State, in this matter, relied on the judgment of the Supreme Court in the case of Krishna Yadav v. State of Haryana reported in 1994 A.I.R. S.C. page 2373. In that case the selection proceeding was found to be vitiated by acts of favouritism and nepotism and ultimately the documents or records of such selection were destroyed. There was also a C.B.I. inquiry which clearly established the case of 'concerted fraud' and there was evidence of over writing and interpolation in the selection list. Even roll numbers of the candidates were found fictitious. In that case it was found on the basis of C.B.I. inquiry that the persons, who had not attended the interview, were awarded marks and forgery had been committed. In many cases, the persons who appeared before the viva voce test were declared absent in the final selection test. 'Political influence has had a free hand.' In the background of those facts, the learned Judge of the Supreme Court has accepted the C.B.I. inquiry report which speaks volume about the manipulation in the said selection process. In the instant case, the fact-situation is not the same. Therefore, the ratio of the said judgment cannot be applied to the facts of the present case.
26. Learned Counsel for the respondents also placed reliance on another Division Bench Judgment of Andhra Pradesh High Court in the case of Smt. V. Rama Choudhary v. University of Hyderabad reported in 1994 Lab. I.C. page 1628. There in the case of a particular appointment the Court held that the eligibility criteria was not satisfied by the selected candidates and as such the selection was set aside. In this case the orders of termination against the writ petitioners have not been passed on the ground that the eligibility criteria has not been satisfied. Therefore, this Court holds that the said judgment is not applicable to the facts of the present case.
27. This Court holds that the rights of the parties in these Letters Patent Appeals have not been, as they obviously could not be, finally determined by the said interim order dated 3.9.1993. And, in fact, the said interim order has reserved right of this Court to pass further orders after hearing learned Counsel for the parties. The Court has heard learned Counsel for the parties and considered the aforesaid contentions raised by the respective counsel for the parties and this Court comes to the conclusion that in absence of a fair inquiry by the said I.G., the termination of the services of the writ petitioners have not been brought about fairly.
28. By the said order dated 8.9.1993, the orders of termination of all the 87 writ petitioners have been set aside but they were not allowed to join in view of the aforesaid inquiry conducted by the said I.G.
29. For the reasons aforesaid, we hold that the inquiry by the said I.G. has not been fairly and justly conducted and consequently the findings have not been fairly and justly brought about
30. Today there is no order of termination of those 87 writ petitioners inasmuch as such orders stood quashed on 8.9.1993. The so called findings by the said I.G are hereby quashed. Therefore, there is no impediment on the part of 87 writ petitioners to join the posts to which they were appointed.
31. The State Government is hereby directed to allow all the 87 writ petitioners to join their posts to which they had been appointed within a period of ten days from today. It is further made clear that after joining the said posts, they will get the benefit of continuity of their services for the period they could not join the said post because of the aforesaid order of termination of their services but they will not be entitled to receive anything by way of salary or back wages.
32. Accordingly, L.P.A. Nos. 22 and 23 of 1993 are dismissed and L.P.A. Nos. 24 and 25 of 1993 are allowed. There will be no order as to costs.
K. Venkataswami, C.J.
33. I agree.