Krishnajee Rai vs The State Of Jharkhand
2022 Latest Caselaw 1802 Jhar

                                  1

IN THE HIGH COURT OF JHARKHAND AT RANCHI
              W.P.(S) No. 6498 of 2014
                                      ---------
   Krishnajee Rai.                                  ..... Petitioner
                            Versus
   1. The State of Jharkhand.
   2. The Principal Secretary, Dept. of Health & Family
        Welfare, Govt. of Jharkhand Nepal House, P.O. & P.S.
        Doranda, Dist.-Ranchi.
   3. The Director-in-Chief, Dept. of Health & Family Welfare,
        Govt. of Jharkhand, P.O. & P.S.-Namkum, Dist.-Ranchi.
   4. The Director (Planning & Administration), Dept. of
        Health & Family Welfare, Govt. of Jharkhand, P.O. &
        P.S.-Namkum, Dist.-Ranchi.
   5. The Civil Surgeon cum Chief Medical Officer, Giridih,
        P.O. & P.S. Giridih, Dist.-Giridih.         ..... Respondents
                            ---------
   CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
                            ---------
   For the Petitioner       : Mr. Rajendra Krishna, Advocate.
   For the Respondents : Mr. Manoj Kumar, Advocate
                            ---------

                            JUDGEMENT

C.A.V. On 21.12.2021 Delivered on 05 /05 /2022.

Heard learned counsel for the parties.

2. The instant writ application has been preferred by

the petitioner praying therein for quashing of the order as

contained in letter No. 1137 (24) dated 26.05.2014 issued

by respondent No.3; whereby the said authority held that

the petitioner is not entitled to continue in service and his

re-appointment cannot be considered and therefore he

stands relieved from service w.e.f. 29.06.2012; and also for

a direction upon the concerned respondent to forthwith

reinstate the petitioner in service with all consequential

benefits including the back wages since the petitioner's

removal from service is illegal, arbitrary and during the

period the petitioner was not gainfully employed.

3. The brief facts as disclosed in the writ application is

that the petitioner was appointed in the year, 1987 on the

post of Non-Medical Assistant. An enquiry was conducted

into the appointments made in the Department of Health by

one Dr. Rajendra Prasad, the then State Leprosy

Eradication Officer, Bihar and the appointments made by

the said Dr. Rajendra Prasad were declared illegal.

However, the petitioner continued in service and after

bifurcation of the erstwhile State of Bihar the petitioner

gave his joining under the Government of Jharkhand on

19.01.2002 and his service was confirmed by the

Government of Jharkhand on 24.12.2003.

It further appears that again an enquiry was

conducted and a report was submitted on 30.04.2012. By

the order dated 29.06.2012 the service of the petitioner has

been terminated and thereafter the petitioner moved before

this Court challenging the termination order dated

29.06.2012 in W.P.(S) No. 4844 of 2012 wherein the

respondents have taken a plea that since vide order dated

08.03.1999 all the appointments made by Dr. Rajendra

Prasad were declared illegal, the appointment of the

petitioner was also illegal ab initio and therefore, when this

fact was detected; by order dated 29.06.2012, the service of

the petitioner has been terminated.

4. At this stage it is pertinent to mention here that the

writ court in the earlier writ application quoted paragraph

13 to 19 of the counter affidavit filed by the respondents in

its order dated 13.12. 2013 and disposed of the matter by

quashing the impugned order of termination dated

29.06.2012; however, a liberty was given to the respondents

that if it is found that petitioner's initial appointment was

illegal and he continued in service illegally, the respondents

may pass appropriate order after issuing show-cause notice

to the petitioner. Relevant paragraph nos. 6 and 7 of the

order dated 13.12.2013 passed in W.P. (S) No. 4844 of 2012

preferred by the petitioner is extracted herein below:-

"6. On perusal of the documents on record, I find that the impugned order dated 29.06.2012 has been passed on the ground that as the findings recorded in the order dated 08.03.1999 would be applicable to the petitioner and since it has been found that the petitioner was also appointed by the said Dr. Rajendra Prasad, his appointment was also illegal. I am of the view that once the service of the petitioner has been confirmed on 24.12.2003 and subsequently after an enquiry in the matter, it was found that the petitioner's service was not terminated, it was not open to the respondent- authority to terminate the service of the petitioner without issuing show-cause notice to the petitioner. The petitioner continued in service even after order dated 08.03.1999 pursuant to which services of several other persons were terminated. Admittedly,

no show-cause notice has been issued to the petitioner nor any departmental proceeding was initiated against the petitioner in the matter. After long lapse of more than 14 years since the order dated 08.03.1999 was passed, the termination of the service of the petitioner is not justified and therefore, the impugned order dated 29.06.2012 calls for interference by this Court. I further find that the impugned order is cryptic and it discloses complete non-application of mind on the part of the respondent-authority. Several writ petitions were filed challenging order of termination pursuant to enquiry report dated 08.03.1999 and the writ petitions were allowed. The matter was taken in appeal and in the Letters Patent Appeal filed by the State, an order was passed directing investigation by the C.B.I. The impugned order dated 29.06.2012 does not disclose whether the appointment of the petitioner has been found illegal after the C.B.I. investigation. The order dated 08.03.1999 discloses that a direction was issued to the concerned department to furnish the name of persons appointed by the said Dr. Rajendra Prasad. It appears that after verification of the record, services of several persons were terminated however, the petitioner continued in service as his service was not terminated. It is not the case of the respondents that the petitioner continued in service illegally.

7. In view of the aforesaid, the present petition is allowed. The impugned order dated 29.06.2012 is hereby quashed. The respondents are directed to reinstate the petitioner within a period of four weeks. However, if it is found that the petitioner's initial appointment was illegal and he continued in service illegally, the respondents may pass appropriate order after issuing show-cause notice to the petitioner."

Pursuant to the aforesaid order dated

13.12.2013 passed by the writ court; a show cause was

issued to the petitioner and the petitioner duly replied

however, without any further enquiry the impugned order

as contained in letter no. 1137 (24) dated 26.05.2014 has

been issued restoring the termination order dated

29.06.2012. .

5. Mr. Rajendra Krishna, learned counsel for the

petitioner submits that the respondent no.3 in utter

disregard to the observation/direction of this Hon'ble Court

passed in W.P.(S) No. 4844/2012 and in a most illegal,

arbitrary and whimsical manner and without deciding as to

whether the petitioner's initial appointment was illegal and

he continued service illegally; by simply relying upon the

order dated 08.03.1999 revived the earlier termination

order 29.06.2012 which was already quashed and set aside

by the writ Court.

He assails the impugned order of termination on

following grounds:-

(i) The petitioner was one of the candidates for which the

order dated 08.03.1999 (Annexure-2) was passed and

Annexure-2 categorically speaks about only 467 persons

appointed by Dr. Rajendra Prasad.

(ii) The service of the petitioner was earlier terminated

on the ground of the decision dated 08.03.1999

(Annexure-2) which was discussed in the order of this

Court in W.P.(S) No. 4844/2012 and the Writ Court has

set aside the earlier order of termination dated

29.06.2012, since this Court did find illegality in

terminating the services of the petitioner as because no

illegality has been disclosed in the letter of appointment

and the earlier order dated 08.03.1999 was considered by

the respondents and since after that order, the services of

the petitioner was confirmed and the petitioner continued

for almost 13 years. Therefore, the Writ Court quashed the

termination order with liberty to the respondents to

initiate a proceeding against the petitioner if they found

illegality in the appointment of the petitioner.

(iii) In the show cause given by the respondents pursuant

to the order of this Court, the only ground taken by them

is the Letter No. 84 (11) dated 08.03.1999 and there are no

other grounds shown that why the appointment of the

petitioner is illegal. The petitioner in his reply has

categorically stated that he is continuing in service for last

26 years and his service has also been confirmed. The

petitioner has stated that his appointment has been made

after following all the procedure by the competent

authority but the respondents have not considered the

reply to the show cause filed by the petitioner and has

restored earlier order of termination dated 29.06.2012

which was set aside by this Court in the previous

litigation.

He further contended that the impugned order is not

only illegal but contemptuous to the extent that the order

dated 29.06.2012 was quashed by this Court, has been

restored by the respondent authorities which categorically

shows that the present impugned order has shown the

conduct of the respondents that they have assumed the

power of review over the order passed by this Court and

therefore they have restored the order which was set aside

by this Court.

(iv) The respondent authorities did not contradict the

specific ground taken by the petitioner that he was

appointed after following all the procedures of the

appointment that too by the competent authority and in

absence of controverting the said grounds taken by the

petitioner, the appointment of the petitioner cannot be

held to be illegal.

(v) The petitioner continued in the service for 26 years

and no illegality has been shown by the respondent

authorities, save and except, that the petitioner was

appointed by the said Rajendra Prasad; even the

opportunity was granted by this Court. Therefore, another

impugned order restoring the earlier order of termination

itself is illegal on the ground that it does not show any

illegality and the respondent cannot revive the order which

was set aside by this Court.

6. Mr. Manoj Kumar, learned counsel for the

respondent opposed the prayer of the petitioner and made

following submissions:

(a) There is no error in the impugned order and all

the appointments made by Dr. Rajendra Prasad were

declared illegal. The appointment of the petitioner was also

illegal ab initio and therefore, when this fact was detected;

by order dated 29.06.2012, the service of the petitioner has

been terminated.

(b) Number of LPAs were filed against the judgment

passed in connection with the aforesaid issue of illegal

appointment made by Dr. Rajendra Prasad before the Patna

High Court being LPA No. 1067/1999 (Manoj Kumar Singh

and Ors. Vs. State of Bihar & Ors.) and LPA Nos. 1062,

1078, 1239, 1377, 1023, 1113, 1092, 1109, 1110, 1114,

1126 and 1129 of 1999, which were disposed of by the

Division Bench of Patna High Court vide order dated

11.02.2000. By the said order, the Hon'ble Patna

High Court directed the CBI to carry out an

investigation in the Leprosy Eradication Program in the

State of Bihar. The CBI has submitted a report dated

29.11.2001 against the illegal appointment made by

Dr. Rajendra Prasad and gave findings that the

accused persons by corrupt and illegal means and in abuse

of their respective positions, obtained valuable things or

pecuniary advantage for themselves and others.

(c) The petitioner is also the appointee of Dr.

Rajendra Prasad- the then SLEO, Govt. of Bihar and his

service was also terminated along with others vide memo

no. 84 (11) dated 08.03.1999 and the petitioner, somehow

managed to continue in service. Therefore, the department

has constituted two men committee to enquire the matter

and submit the report vide memo no. 740 (24) dated

02.04.2012. The two men committee submitted the report

vide memo no. 170 (D) dated 30.04.2012 that in spite of

termination order dated 08.03.1999; the petitioner is still

working. Thus, since the service of petitioner was already

terminated along with 467 employees appointed by Dr.

Rajendra Prasad- the then SLEO vide memo no. 84 (11)

dated 08.03.1999; therefore the concerned respondent

considering the report of committee terminated the

service with immediate effect vide memo no. 1558 (24)

dated 29.06.2012.

(d) Several appointees of Dr. Rajendra Prasad have

filed writ petitions before this Court and this Court has

directed the respondent to decide the claim of the

petitioner and accordingly the Secretary, Department

of Health and Family Welfare, Govt. of Jharkhand

passed the order contained in letter no. 19 (HS) dated

12.12.2008, memo no. 218 dated 10.09.2011 and

memo no. 3321(11) dated 28.12.2011.

7. He concluded his argument by submitting that the

stand of the petitioner that he has been exonerated by the

CBI does not have any legs to stand, inasmuch as, the CBI

was not investigating the personal case of the petitioner;

rather CBI was looking to the overall manipulation made by

the said Dr. Rajendra Prasad in appointment so it hardly

matters as to whether his name figures in the list of 467

persons or not.

8. Having heard learned counsel for the parties and

after going through the documents available on record, it

appears that the Health, Medical Education and Family

Welfare Department has passed an order by which the

appointments of altogether 467 persons on Class-III and

Class-IV posts made by Dr. Rajendra Prasad has been

declared to be irregular and illegal, and a direction was

given to all the Drawing and Disbursing Authority that from

such employees (467), the authorities shall not take work;

nor they shall be paid their salary and the concerned

department shall send names of all such 467 persons

appointed by Dr.Rajendra Prasad.

After re-organization of the State of Bihar, the

petitioner submitted his joining in the Office of the In-

charge, District Leprosy Control Officer, Giridih and same

was accepted which is evident from the letter contained in

Memo No. 96 dated 19.01.2002. Vide order dated

24.12.2003, the service of the petitioner has been

confirmed.

Subsequently, a committee was constituted to

inquire into the matter regarding continuation of service of

the petitioner which submitted its report in which the

committee has given its opinion that there is no letter

available for terminating the services of the petitioner,

however, the services of the petitioner has been confirmed

vide Memo no. 387 (6) dated 24.12.2003.

However, the service of the petitioner has been

terminated vide order dated 29.06.2012 (Annexure-10);

considering the report of the erstwhile State of Bihar

contained in Memo No. 84 (11) dated 8.3.1999. Thereafter,

the writ petition being W.P.(S) No. 4844/2012 was preferred

by the petitioner which was disposed of by the Writ Court

by which the order of termination dated 29.06.2012 has

been quashed with a direction to reinstate the petitioner

within a period of four weeks with a liberty to the

respondents that if they find that the initial appointment of

the petitioner is illegal, the respondents may pass an

appropriate order after issuing show cause notice to the

petitioner.

Pursuant thereto; a show cause notice was issued to

the petitioner that why his service not be terminated in view

of the Memo No. 84 (11) dated 08.03.1999. The petitioner

submitted his reply on 28.03.2014. Thereafter, an order as

contained in letter No. 1137 (24) dated 26.05.2014 was

issued by respondent No.3; whereby the said authority held

that the petitioner is not entitled to continue in service. In

the said order, the termination order dated 29.06.2012

which was earlier quashed by the Coordinate Bench of this

Court, has been restored.

9. In the Supplementary Affidavit filed by the petitioner,

the petitioner had enclosed the entire copy of the charge-

sheet submitted by the C.B.I. in RC No. 17/A/2000-Pat.

The aforesaid case was lodged by the C.B.I. to enquire

about the appointment of Class-III and Class-IV employees

by Dr. Rajendra Prasad, the then S.L.E.O. under State

Leprosy Eradication Program in which the appointment of

all 467 persons were taken into consideration and in

enclosure as enclosed at Annexure-A along with the charge-

sheet, the name of the petitioner figures at Sl.No.1 and in

the right hand side under the remark column, it has been

noted as follows :- "Not figuring in the list of 467 persons

dated 25.10.88."

Thus, from the charge-sheet submitted by the C.B.I.,

it is quite evident that the petitioner is not amongst one of

467 persons whose appointment was declared illegal vide

order contained in Memo No. 84 (11) dated 08.03.1999

(Annexure-2 of the writ petition), and therefore the order of

termination passed on the basis of the decision dated

08.03.1999 is not in consonance with law.

9. It further transpires from record that the writ court

while quashing the earlier termination order dated

29.06.2012 has categorically observed that "the matter was

taken in appeal and in the letters patent appeal filed by the

State, an order was passed directing investigation by the

C.B.I. The impugned order dated 29.06.2012 does not

disclose whether the appointment of the petitioner has been

found illegal after the C.B.I. investigation. The order dated

08.03.1999 discloses that a direction was issued to the

concerned department to furnish the name of persons

appointed by the said Dr. Rajendra Prasad. It appears that

after verification of the record, services of several persons

were terminated however, the petitioner continued in service

as his service was not terminated. It is not the case of the

respondents that the petitioner continued in service illegally."

After observing as such; the writ Court in the

earlier writ application after quashing the termination order

gave liberty to the respondents to pass appropriate order

after issuing show cause.

10. At this stage it is pertinent to mention here that

liberty for issuing show cause given by the writ Court was

not for mere formality but the intent of issuing the show

cause notice was to follow principles of natural justice and

giving opportunity of being heard to the petitioner. In the

instant case, admittedly; show cause notice was issued,

which was duly replied by the petitioner. However, without

giving any opportunity of hearing; the impugned order has

been passed and the termination order dated 29.06.2012

was restored.

Thus it is clear that the respondents- State has acted

mechanically and just complied the formality of issuing

show cause as directed by the writ court. The meaning of

show cause has been discussed in detail in the case of Oryx

Fisheries (Private) Ltd. v. Union of India and Others

reported in (2010) 13 SCC 427, wherein the Hon'ble Apex

Court at paragraph 24, 25, 26 and 31 has dealt in detail

about the reasonable opportunity. For brevity the said

paragraphs are quoted herein below:-

"24. This Court finds that there is a lot of substance in the aforesaid contention. It is well settled that a quasi- judicial authority, while acting in exercise of its statutory power must act fairly and must act with an open mind while initiating a show-cause proceeding. A show-cause proceeding is meant to give the person proceeded against a reasonable opportunity of making his objection against the proposed charges indicated in the notice.

25. Expressions like "a reasonable opportunity of making objection" or "a reasonable opportunity of defence" have come up for consideration before this Court in the context of several statutes. A Constitution Bench of this Court in Khem Chand v. Union of India [AIR 1958 SC 300], of course in the context of service jurisprudence, reiterated certain principles which are applicable in the present case also.

26. S.R. Das, C.J. speaking for the unanimous Constitution Bench in Khem Chand held that the concept of "reasonable opportunity" includes various safeguards and one of them, in the words of the learned Chief Justice, is :

"(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;"

31. It is of course true that the show-cause notice cannot

be read hypertechnically and it is well settled that it is to be read reasonably. But one thing is clear that while reading a show-cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show-cause notice and prove his innocence. If on a reasonable reading of a show-cause notice a person of ordinary prudence gets the feeling that his reply to the show-cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show-cause notice does not commence a fair procedure especially when it is issued in a quasi-judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence."

11. The writ Court though gave but and specifically

stated to give a show cause notice, however, from the

impugned order it appears that the issuance of the show

cause notice was basically a mere formality and the

petitioner was not given any opportunity of hearing.

In the back ground that the charge sheet submitted

by the CBI wherein there is categorical remarks in front of

name of the petitioner that his name does not figure in the

list of 467 persons; passing of the impugned order without

giving opportunity of hearing appears to be procedural

error. For brevity, relevant column is quoted herein below:-

List of 208 persons who joined in 1987 Sl. Name of Desig- Appointment Date of Place of Remarks No. persons nation Ltr. No. & dt. Joining posting S/Sh

1. Krishnaji N.M.A. 372 dt. 14.5.87 21.5.87 Giridih Not figuring in the Roy list of 467 persons dt. 25.10.88

The above remark clearly goes to show that his name

was not under the list of 467 candidates and in this

background giving personal opportunity of hearing was

necessary.

12. Further the impugned order has not discussed even

a single line about the specific remark given by the CBI.

Admittedly, the CBI investigated the entire scam on the

direction of the Division Bench of Patna High Court, as

such, it was necessary for the respondent while holding the

petitioner guilty giving reasoning; however, they have again

reiterated the stand that he was appointed by the said Dr.

Rajendra Prasad.

13. Needless to say that the service of the petitioner was

confirmed on 24.12.2003 as such terminating the petitioner

and issuing the termination order and/or the impugned

order without giving personal opportunity to the petitioner

that too after the quashing of the earlier termination order

is bad in law.

14. It also transpires from record that the respondent-

authority did not contradict the specific ground of the

petitioner that he was appointed after following all the

procedure of the appointment and he continued in service

for 26 years and no illegality has been shown except that he

was appointed by Dr. Rajendra Prasad.

15. In view of the aforesaid facts and circumstances

interest of justice demands that the matter may be remitted

back to the competent authority for reconsideration who

shall revisit the order after following principles of natural

justice in true letter and spirit and not only doing mere

formalities.

16. Ordered accordingly.

17. Consequently, the impugned order as contained in

Letter No. 1137 (24) dated 26.05.2014 is quashed and set

aside. The respondent no.3 is directed to pass a fresh order

within a period of six months from the date of

receipt/production of copy of this order after hearing the

petitioner and following principles of natural justice.

It goes without saying that if the fresh order is not

passed within the aforesaid stipulated period then

petitioner shall be deemed to be reinstated in service.

18. With the aforesaid direction the instant writ

application stands partly allowed.

(Deepak Roshan, J.) Jharkhand High Court Dated/05 /05 /2022 Amardeep/AFR