Biswajit Gorai vs The State Of Jharkhand Through The ...
2021 Latest Caselaw 1172 Jhar

                                  -1-                     W.P. (S) No. 2776 of 2017
                                                                    With
                                                          W.P. (S) No. 2849 of 2017



      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 W.P. (S) No. 2776 of 2017
     Biswajit Gorai, son of Sri Sadanand Gorai, resident of Village-
     Hakikatpur, P.O. Kumardaha, P.S. Raneshwar, District- Dumka
                                                      ... Petitioner

                                 -Versus-

1.   The State of Jharkhand through the Secretary/Principal Secretary,
     Health Medical Education & Family Welfare Department, Nepal House,
     P.O. & P.S. Doranda, Town & District- Ranchi
2.   The Additional Chief Secretary, Health Medical Education and Family
     Welfare Department, Nepal House, P.O. & P.S. Doranda, Town &
     District- Ranchi
3.   The Regional Deputy Director of Health Services, Santhal Pargana,
     P.O., P.S. & District- Dumka
4.   The Civil Surgeon-cum-Chief Medical Officer, Dumka, P.O., P.S. &
     District- Dumka
5.   The Additional Chief Medical Officer, Dumka, P.O., P.S. & District-
     Dumka                                            ... Respondents

                                      With

                       W.P. (S) No. 2849 of 2017
     Arun Kumar Chaudhary, s/o late Kailash Nath Chaudhary, presently
     residing at Dewan Baba Gali Karmi Bagh Deoghar, P.O., P.S. & District-
     Deoghar                                       ... Petitioner

                                  -Versus-

1.   The State of Jharkhand
2.   The Additional Chief Secretary, Health Medical Education and Family
     Welfare Department, Govt. of Jharkhand, Nepal House, P.O. & P.S.
     Doranda, District- Ranchi
3.   Principal Secretary, Health Medical Education and Family Welfare
     Department, Govt. of Jharkhand officiating from Health Directorate
     Building, P.O. & P.S. Namkum, District- Ranchi
4.   The Regional Deputy Director, Health Services, Santhal Pargana
     Division, Dumka, P.O., P.S. & District- Dumka
5.   The Civil Surgeon-cum-Chief Medical Officer, Dumka, P.O., P.S. &
     District- Dumka
6.   The Civil Surgeon-cum-Chief Medical Officer, Deoghar, P.O., P.S. &
     District- Deoghar
7.   District R.C.H. Officer Deoghar, officiating from Deoghar, P.O., P.S. &
     District- Deoghar                                  ... Respondents
                              -----

CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner: Mr. Manoj Tandon, Advocate (In WPS-2776/17) Mr. Anil Kumar Sinha, Sr. Advocate Mr. Onkar Nath Tiwary, Advocate (In WPS-2849/17) For the State : Mr. Shashank Saurav, A.C. to G.P.-III (In WPS-2776/17) Mr. Shadab Bin Haque, A.C to Sr.S.C.-I (In WPS-2849/17)

-----

07/09.03.2021. Heard Mr. Manoj Tandon, learned counsel for the petitioner and

Mr. Shashank Saurav, learned counsel for the respondent-State in W.P. (S)

No. 2776 of 2017 and Mr. Anil Kumar Sinha, learned Senior counsel assisted

by Mr. Onkar Nath Tiwary, learned counsel for the petitioner and Mr. Shadab

Bin Haque, learned counsel for the respondent-State in W.P. (S) No. 2849 of

2017.

2. The writ petitions have been heard through Video Conferencing in

view of the guidelines of the High Court taking into account the situation

arising due to COVID-19 pandemic. None of the parties have complained

about any technical snag of audio-video and with their consent the matters

have been heard on merit.

3. In both the writ petitions, common question of law and facts are

involved and that is why both the writ petitions have been heard together

with the consent of the learned counsel for the parties.

W.P. (S) No. 2776 of 2017

4. The petitioner has preferred this writ petition for quashing the order

dated 27.04.2017, whereby, the petitioner has been terminated from

service. The prayer for consequential benefits is also made in the writ

petition.

5. The petitioner was initially allowed to work as Voluntary Worker in the

office of Primary Health Centre, Shikaripara, Dumka. The service of the

-3- W.P. (S) No. 2776 of 2017 With W.P. (S) No. 2849 of 2017

petitioner was regularized on the post of Vaccinater w.e.f. 01.04.1988. The

service of the petitioner was absorbed on the post of Clerk vide order dated

09.05.2002, contained in Annexure-2 of the writ petition. The petitioner

joined on the post of Clerk on 01.07.2002. Vide letter dated 24.02.2003, a

show-cause notice was issued to the petitioner as to why further action be

not taken against him in light of the letter no.302 dated 10.02.2003 issued

by the Deputy Commissioner, Dumka. The petitioner replied to the show-

cause notice on 16.03.2003 to the Civil Surgeon-cum-Chief Medical Officer,

Dumka. Pursuant to reply, the order dated 08.09.2005, contained in

Annexure-5 was passed and the petitioner was allowed to continue in the

service. However, the salary of the petitioner was not being paid and the

petitioner moved before this Court in W.P.(S) No.6895 of 2005, which was

disposed of vide order dated 10.04.2006 with direction to the respondents

to consider the case of the petitioner and take a decision with regard to

payment of salary. The Civil Surgeon-cum-Chief Medical Officer, Dumka has

decided the case of the petitioner and direction was issued to pay salary to

the petitioner vide order dated 09.06.2006, contained in Annexure-7 of the

writ petition. The petitioner was granted 2 nd M.A.C.P. on completion of 20

years of satisfactory service w.e.f. 28.02.2012 vide order dated 31.01.2014.

Vide order dated 03.03.2017, the Additional Chief Medical Officer directed

the petitioner to bring entire records relating to his service. The petitioner

submitted his reply on 07.03.2017. The impugned order dated 27.04.2017

has been passed by the Civil Surgeon-cum-Chief Medical Officer, Dumka,

whereby, the service of the petitioner has been terminated. Aggrieved with

this order, the petitioner has preferred the present writ petition.

                                      -4-                   W.P. (S) No. 2776 of 2017
                                                                     With
                                                           W.P. (S) No. 2849 of 2017


W.P. (S) No. 2849 of 2017

6. The petitioner has preferred this writ petition for quashing the order

dated 26.04.2017, whereby, the petitioner has been terminated from

service. The order dated 06.05.2017 issued by the Civil Surgeon-cum-Chief

Medical Officer is also under challenge. The prayer for consequential

benefits is also made in the writ petition.

7. The petitioner was appointed on the post of Clerk in the Health

Department at the district of Dumka in the year 1990. On the charges of

alleged irregular appointment, the Department of Health issued show-cause

to 198 employees including the petitioner. The services of the petitioner and

other 6 employees were terminated vide order dated 25.08.1998. The

Regional Deputy Director, Health Services, Santhal Pargana Division, Dumka

requested the Commissioner-cum- Secretary, Department of Health, Medical

Education and Family Welfare, Government of Bihar to review and to pass

proper order regarding the said order dated 25.08.1998. The Regional

Deputy Director, Health Services, Santhal Pargana Division, Dumka passed

an order dated 01.03.2002 in which the petitioner and one other employee

was allowed to join his duty and directed for payment of salary. The

petitioner was transferred from Additional DHC Baskulli (Rameshwar) to the

post of Clerk at Additional DHC Makra of Sadar Block Dwarka vide letter

dated 15.12.2003. After joining of the petitioner at Additional DHC Makra,

the Civil Surgeon-cum-Chief Medical Officer, Dumka vide letter dated

14.02.2004 issued direction regarding no work should be taken by the

petitioner and non-payment of salary of the petitioner. The petitioner moved

before this Court against that order in W.P.(S) No. 1711 of 2004 and

-5- W.P. (S) No. 2776 of 2017 With W.P. (S) No. 2849 of 2017

pursuant to the interim order passed in that writ petition, the petitioner was

allowed to join and salary was started. An F.I.R. was lodged against the

petitioner on the charge of unauthorized presence on duty and forcibly put

mark attendance on official register. In the Criminal Appeal No. 2/2014, the

petitioner was acquitted from the said charge vide order dated 30.04.2015.

Vide order dated 29.06.2007, the petitioner was transferred from the district

of Dumka to the district of Deoghar. The petitioner was granted the benefit

of 2nd MA.C.P. Vide order dated 30.10.2012. The service of the petitioner

was confirmed by the Civil Surgeon-cum-Chief Medical Officer, Deoghar vide

order dated 05.05.2010. The Enquiry Committee was constituted for

verifying the appointment of various persons. Pursuant to the order passed

by this Court in W.P.(S) No. 2414 of 2009 with W.P.(S) No.2415 of 2009, 3

Men Committee was constituted and 3 Men Committee submitted a report,

thereafter, the service of the petitioner has been terminated vide order

dated 26.04.2017. Aggrieved with this order, the petitioner has preferred the

present writ petition.

8. On these backgrounds, Mr. Manoj Tandon, learned counsel for the

petitioner in W.P. (S) No. 2776 of 2017 challenged the impugned order

dated 27.04.2017 on the ground that without following the principles of

natural justice, the impugned order has been passed. He submits that the

petitioner has rendered 27 years of service and without following the rule,

the service of the petitioner has been terminated. He further submits that

the appointment letter is on the record at Annexure-1, wherein, along with

the petitioner 11 other persons were appointed. The petitioner's service has

been absorbed vide order dated 09.05.2002, contained in Annexure-2. He

-6- W.P. (S) No. 2776 of 2017 With W.P. (S) No. 2849 of 2017

also submits that by way of Annexure-3, the petitioner was asked to give

reply to the show-cause and by way of Annexure-4, the petitioner submitted

his reply. He further submits that the said reply was found to be satisfactory

and that is why the petitioner was allowed to discharge the work vide order

dated 08.09.2005, contained in Annexure-5. Thereafter, the salary of the

petitioner was stopped and pursuant to the order passed in W.P.(S) No.

6895 of 2005, the salary of the petitioner was released vide order dated

09.06.2006, contained in Annexure-7. He also submits that the petitioner

was granted the benefit of 2nd M.A.C.P. vide order dated 31.01.2014. He

further submits that vide order dated 03.03.2017 on the extent of letter

dated 15.01.2003, the petitioner was again asked to give reply about his

appointment and the petitioner provided the entire material with regard to

his appointment by letter dated 07.03.2017, contained in Annexure-10. He

further submits that on the extent of order no.74 dated 26.04.2017 issued

by the Additional Chief Secretary, Health, Medical Education and Family

Welfare Department, Government of Jharkhand, the petitioner's service has

been terminated vide order dated 27.04.2017. He further submits that

without following the due process of law and without following the rule with

regard to the Government employees, namely, Jharkhand Government

Servants (Classification, Control and Appeal) Rules, 2016, the impugned

order has been passed. He also submits that the petitioner has already

rendered 27 years of service and without providing the document and

without providing opportunity of hearing to the petitioner, the impugned

order has been passed that too on the extent of an order passed by the

High Court in which the petitioner was not the party. He also submits that if

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the order of the High Court was there, the petitioner was required to be

noticed and after providing full opportunity of hearing, any order can be

passed, which has not been done in the case of the petitioner. He relied

upon the judgment rendered by the Hon'ble Supreme Court in the case of

Buddhi Nath Chaudhary and others v. Abahi Kumar and Others ,

reported in (2001) 3 SCC 328.

9. Paragraph 6 of the said judgment is quoted herein below:

"6. The selected candidates, who have been appointed, are now in employment as Motor Vehicle Inspectors for over a decade. Now that they have worked in such posts for a long time, necessarily they would have acquired the requisite experience. Lack of experience, if any, at the time of recruitment is made good now. Therefore, the new exercise ordered by the High Court will only lead to anomalous results. Since we are disposing of these matters on equitable consideration, the learned counsel for the contesting respondents submitted that their cases for appointment should also be considered. It is not clear whether there is any vacancy for the post of Motor Vehicle Inspectors. If that is so, unless any one or more of the selected candidates are displaced, the cases of the contesting respondents cannot be considered. We think that such adjustment is not feasible for practical reasons. We have extended equitable considerations to such selected candidates who have worked in the post for a long period, but the contesting respondents do not come in that class. The effect of our conclusion is that appointments made long back pursuant to a selection need not be disturbed. Such a view can be derived from several decisions of this Court including the decisions in Ram Sarup v. State of Haryana; District Collector & Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi and H.C. Puttaswamy v. Hon'ble Chief Justice of Karnataka High Court, Bangalore. Therefore, we must let the matters lie where they are."

10. Mr. Manoj Tandon, learned counsel for the petitioner further relied

upon the judgment rendered by the Hon'ble Supreme Court in the case of

Punjab State Electricity Board and Others v. Leela Singh, reported in

(2007) 12 SCC 146.

11. Paragraph 5 of the said judgment is quoted herein below:

                                     -8-                     W.P. (S) No. 2776 of 2017
                                                                      With
                                                            W.P. (S) No. 2849 of 2017

"5. The charge against the respondent is that he has committed fraud in obtaining the appointment by production of a forged experience certificate. The said charge, in our considered opinion, was required to be proved in a duly constituted departmental proceeding. The services of the appellant could not have been directed to be terminated relying on and/or on the basis of the decision of the Board in the case of another employee."

12. On the other hand, Mr. Shashank Saurav, learned counsel for the

respondent-State in W.P.(S) No. 2776 of 2017 tried to justify the impugned

order and submits that the petitioner's appointment was found to be forged.

He further submits that 3 Men Committee was constituted to enquire into

the matter and 3 Men Committee has come to the conclusion that the

petitioner along with one Arun Kumar Chaudhary [petitioner in W.P.(S) No.

2849 of 2017] appointment fraudulently and that is why the impugned

order dated 27.04.2017 has been passed. He further submits that this was

done in pursuance of the order passed by this Court in W.P.(S) No.2414 of

2009 and W.P.(S) No.2415 of 2009.

13. Mr. Anil Kumar Sinha, learned Senior counsel appearing for the

petitioner in W.P.(S) No. 2849 of 2017 submits that the petitioner's

appointment was valid as Annexure-1 is already there, which is the

appointment letter. He further submits that earlier one another enquiry was

made wherein the case of the petitioner was found to be true. He also

submits that enquiry was conducted in pursuance to the direction dated

24.01.2013 issued by the order of the Principal Secretary, Health Medical

Education and Family Welfare Department, Government of Jharkhand. He

further submits that pursuant to that order, the order dated 21.05.2014,

contained in Annexure-20 to the rejoinder has been passed, whereby, the

case of the petitioner has been found to be true, which was approved and

-9- W.P. (S) No. 2776 of 2017 With W.P. (S) No. 2849 of 2017

thereafter the petitioner has been granted the benefits of M.A.C.P. He also

submits that 3 Men Committee has submitted a report on the basis of the

direction issued by this Court in W.P.(S) No.2414 of 2009 with W.P.(S)

No.2415 of 2009, wherein the petitioner was not the party. He further

submits that without following the principles of natural justice, the career of

the petitioner has been brought to an end, which is against the mandate of

law. He relied upon the judgment rendered by the Hon'ble Supreme Court in

the case of UCO Bank & Ors. v. Rajendra Shankar Shukla , reported in

2018 4 Supreme 257.

14. Paragraphs 12 and 13 of the said judgment are quoted herein below:

"12. We do not find any reason to interfere with the judgment and order passed by the High Court. However, it is necessary for us to highlight a few facts which were brought to our notice during the course of submissions made by learned counsel. The first issue of concern is the enormous delay of about 7 years in issuing a charge sheet against Shukla. There is no explanation for this unexplained delay. It appears that some internal discussions were going on within the Bank but that it took the Bank 7 years to make up its mind is totally unreasonable and unacceptable. On this ground itself, the charge sheet against Shukla is liable to be set aside due to the inordinate and unexplained delay in its issuance.

13. What compounds the default on the part of the Bank is that Shukla was placed in a higher category as a Manager on 19th July, 1994 while all these discussions were going on in the Bank. He was also allowed to cross the efficiency bar on 12th August, 1996 again while the discussions were going on. Surely, if the Bank was serious about proceeding against Shukla for misconduct, they would not only have taken prompt action in issuing a charge sheet but would not have granted him the benefit of being placed in a higher category or crossing the efficiency bar."

15. Mr. Shadab Bin Haque, learned counsel for the respondent-State in

W.P.(S) No. 2849 of 2017 draws attention of the Court to the 3 Men

Committee and submits that the Enquiry Committee has given clear cut

finding about the illegal appointment of the petitioner. He further submits

-10- W.P. (S) No. 2776 of 2017 With W.P. (S) No. 2849 of 2017

that the appointing authority has also denied about genuineness of the said

letter and that is why the impugned order has been passed. He further

submits that in pursuance of the order passed by this Court in W.P.(S)

No.2414 of 2009 with W.P.(S) No.2415 of 2009, the service of the petitioner

has been terminated, which has been later on appreciated by the Court,

contained in Annexure-A of the counter affidavit. To justify the action of the

respondents, he refers to paragraph 9 of the Enquiry Committee's report.

16. In view of the aforesaid facts and considering the submission of the

learned counsel for the parties, the Court has ventured to go through the

materials on the record. By the order dated 02.03.1989, 12 persons have

been appointed, whereby, the petitioner namely Biswajit Gorai was also

appointed. One Santosh Kumar Dey in the said order was terminated from

the service, who moved before this Court. Pursuant to the order of the

Court, the service of the said Santosh Kumar Dey has been reinstated by

the respondent-State. The rest of the persons disclosed in Annexure-1

dated 02.03.1989, except the petitioner, are still working. If the

appointment of the petitioner is found to be forged one, the rest of the

persons are also said to be appointed fraudulently. However, the service of

the petitioner has only been terminated. The petitioner's service has been

regularized vide order dated 02.03.1989. How the authority concerned has

come to the conclusion that the petitioner's service has been found to be

forged. No reason has been assigned in the impugned order. The

petitioner's service has been terminated without following the due process

of law. The petitioner has already rendered 27 years of service and he was

also provided the benefit of M.A.C.P. and his service book was opened and

-11- W.P. (S) No. 2776 of 2017 With W.P. (S) No. 2849 of 2017

the High Court in W.P.(S) No.2414 of 2009 with W.P.(S) No.2415 of 2009

has not directed to end the service of the petitioner without following the

due process of law that too when the petitioner was not the party in those

writ petitions. Admittedly, in the case in hand, no show-cause has been

issued to the petitioner for termination of service. The departmental enquiry

has not been made and the petitioner was not provided the opportunity of

hearing and without following the due process of law, the impugned order

has been passed in the case of Arun Kumar Chaudhary [petitioner in W.P.(S)

No. 2849 of 2017] and pursuant to the direction of the Principal Secretary,

Health Medical Education and Family Welfare Department, Government of

Jharkhand, Ranchi, enquiry was conducted which has been brought on

record by way of rejoinder to the counter affidavit and pursuant thereto the

service of the petitioner was found to be true and the benefit of M.A.C.P.

was provided to the petitioner. Without taking notice of the earlier enquiry

that too pursuant to the direction of the Secretary of the concerned

department, the 3 Men Committee has come to that conclusion. The earlier

enquiry has not been considered by the 3 Men Committee. On the extent of

which, the interim order was passed by the High Court, the petitioner was

not the party-respondent in those writ petitions. The departmental

proceeding has not been initiated against the petitioner and without

following the due process of law and Jharkhand Government Servants

(Classification, Control & Appeal) Rules, 2016, the impugned order has been

passed. The petitioner has already rendered 27 years of service. Even

assuming that the petitioner's services were not on the basis of the said

parameters, the principles of natural justice was required to be followed.

                                      -12-                        W.P. (S) No. 2776 of 2017
                                                                           With
                                                                 W.P. (S) No. 2849 of 2017

The serious charge like forgery is required to be proved by way of framing

the specific charge in this regard and for that strict adherence is essential

by way of leading the evidence of both the sides. In the case of Union of

India and Others v. Gyan Chand Chattar, reported in (2009) 12 SCC

78, the Hon'ble Supreme Court has held that the serious charge like bribery

should be specific, definite and detailed and strict adherence to statutory

principles and natural justice are essential in that case. The case in hand is

identical. The petitioners' services have been terminated on the ground of

forged documents, which was required to be proved by way of framing

specific charge in this regard and strict adherence to the principles of

natural justice are essential, which has not been done in the case in hand.

The 3 Men Committee's report is also found to be interim enquiry and on

the basis of interim enquiry, the petitioners' services have been terminated.

Paragraphs 21 and 31 of the judgment rendered by the Hon'ble Supreme

Court in the case of Union of India and Others v. Gyan Chand

Chattar, reported in (2009) 12 SCC 78 are quoted herein below:

"21. Such a serious charge of corruption requires to be proved to the hilt as it brings civil and criminal consequences upon the employee concerned. He would be liable to be prosecuted and would also be liable to suffer severest penalty awardable in such cases. Therefore, such a grave charge of quasi-criminal nature was required to be proved beyond any shadow of doubt and to the hilt. It cannot be proved on mere probabilities.

xxx xxx xxx

31. In Municipal Committee, Bahadurgarh v. Krishnan Behari this Court held as under: (SCC p. 715, para 4) "4....In a case of such nature--indeed, in cases involving corruption--there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant." Similar view has been reiterated by this Court in Ruston & Hornsby (I) Ltd. v. T.B. Kadam, U.P. SRTC v. Basudeo

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Chaudhary, Janatha Bazar (South Kanara Central Coop. Wholesale Stores Ltd. v. Sahakari Noukarara Sangha, Karnataka SRTC v. B.S. Hullikatti, Rajasthan SRTC v. Ghanshyam Sharma, NEKRTC v. H. Amaresh and U.P. SRTC v. Vinod Kumar, wherein it has been held that the punishment should always be proportionate to gravity of the misconduct. However, in a case of corruption, the only punishment is dismissal from service. Therefore, the charge of corruption must always be dealt with keeping in mind that it has both civil and criminal consequences."

17. As a cumulative effect of the aforesaid discussions, the impugned

orders cannot sustain in the eyes of law. Accordingly, the impugned order

dated 27.04.2017, contained in Annexure-11 of the W.P.(S) No.2776 of 2017

and the impugned order dated 26.04.2017, contained in Annexure-14 of

W.P.(S) No. 2849 of 2017 are quashed with direction to the respondents to

reinstate the service of the petitioners with all consequential benefits. The

respondent-State, if think and proper and come to the conclusion that there

is requirement of enquiry into the matter, they may do so afresh, in

accordance with law.

18. With the above observations and directions, the writ petitions stand

allowed and disposed of.

(Sanjay Kumar Dwivedi, J.) Ajay/