Jharkhand High Court
Amit Kumar S/O Late Sambhu Kant Dubey vs The State Of Jharkhand Through The Chief ... on 9 September, 2024
Author: R. Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
LPA No.318 of 2015
1. Amit Kumar S/o Late Sambhu Kant Dubey
2. Jitendra Kumar S/o Late Sambhu Kant Dubey
Both residents of Mohalla Panch Mandir Road, Madhupur,
P.O. and P.S. Madhupur, District Deoghar.
....... Appellants
Versus
1. The State of Jharkhand through the Chief Secretary,
Government of Jharkhand, Ranchi.
2. The Principal Secretary, Personnel, Urban Development
Department, Jharkhand, Ranchi.
3. The Deputy Commissioner, Deoghar.
4. The Additional Collector, Deoghar.
5. The S.D.O., Madhupur, District Deoghar.
6. Sri Awadh Narayan Prasad s/o not known to the petitioner, at
present resident and posted as Sub-Divisional Officer,
Madhupur, District Deoghar.
7. Md. Faiyaz Kaiser s/o not known to the petitioner, at present
resident and posted as Chairman, Madhupur Municipality,
Madhupur, District Deoghar.
8. Sri Shankar Paswan s/o not known to the petitioner, at
present resident and posted as Executive Officer, Madhupur
Municipality, Madhupur, District Deoghar.
9. Sri Suresh Roy s/o Sri Govind Prasad Roy, resident of village
Nawadih (Madhupur), District Deoghar.
----- Respondents
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CORAM:HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellant : Mr. Anjani Kumar Verma, Adv.
For the Madhupur Municipality : Mr. Rajesh Kumar, Adv.
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Per R. Mukhopadhyay, J.
11/09.09.2024 Heard Mr. Anjani Kumar Verma, learned counsel
appearing for the appellant and Mr. Rajesh Kumar, learned counsel
appearing for the Madhupur Municipality.
2. This appeal is directed against the order dated
21.05.2015 passed by the learned Single Judge in W.P.(S) No.
4214/2009, whereby and where under the challenge mounted by
the writ petitioner/appellant to his order of dismissal from service
has been rejected.
3. The factual aspects of the case reveal that the petitioner
had applied for the post of Tax Collector in Madhupur Municipality
consequent to an advertisement issued in that respect and being
successful the writ petitioner was appointed to the said post vide
order no. 369/1-2 dated 31.07.1979. However, after serving for
more than two years, the writ petitioner was dismissed from service
without any notice and without any opportunity of hearing but the
said decision of the Municipal Board was declared ab-initio void by
the Deputy Commissioner, Dumka vide letter no. 2853 dated
03.12.1981 and he was allowed to continue in his service. The writ
petitioner was thereafter promoted to the post of Assistant Tax
Daroga vide memo no. 591/1-2 dated 06.01.1990 issued by the
Executive Officer, Madhupur Municipality, Madhupur. The writ
petitioner was thereafter suspended in contemplation of a
departmental inquiry vide memo no. 524 dated 10.09.1996. In the
meantime, the respondent no. 9 to the writ application, who was
also an aspirant to the post in which the petitioner was appointed,
had filed a suit for a declaration that the appointment of the
petitioner was illegal and void which, however, was dismissed on
22.09.1998. A departmental proceeding was started against the
writ Petitioner on the charge that he had obtained service by
submitting forged document and due to this the private respondent
no.9 was deprived from securing the job in spite of having better
credentials than the writ petitioner. Since the departmental
proceeding did not conclude, the writ petitioner had moved this
court in CWJC No. 1326/01 and the same was disposed of on
06.04.2001 with the following directions :-
(a) The authorities were directed to conclude the
departmental proceedings within six weeks from the date
of receipt/ reproduction of a copy of the order, failing
which it was ordered that the departmental proceeding
would stand automatically quashed.
(b) The respondent no.3 was directed to pay all arears of
subsistence allowance within three months, if not already
paid from the date of receipt / reproduction of a copy of
the order, failing which the said respondent no.3 was
made liable to pay interest at the rate of 18% per annum
from the date of suspension till disposal of the
departmental proceedings.
4. The services of the writ petitioner, however, was
terminated vide letter dated 19.07.2021 with retrospective effect
and the same was under challenge in W.P.(S) No. 5004 of 2001
which was allowed on 19.04.2002 and the letter dated 19.07.2001
was quashed. Consequent thereto the writ petitioner had submitted
his joining on 29.04.2002 before the Executive Officer, Madhupur
Municipality, Madhupur and the same was accepted vide letter no.
288/1-2 dated 12.06.2002. It has been stated that the private
respondent no.9 had once again made a complaint to the effect that
the writ petitioner had secured the job on the basis of forged
documents and the matter was inquired upon by respondent no. 8,
who had submitted his opinion to the Deputy Commissioner,
Deoghar and on a show-cause being filed by the writ petitioner, as
directed by the respondent no. 8, the same was acted upon and the
writ petitioner was dismissed from service. The order of dismissal
was challenged by the writ petitioner before this Court in W.P.(S)
No. 4214 of 2009 which was dismissed on 21.05.2015 and which is
the order impugned to the present appeal.
5. It has been submitted by Mr. Anjani Kumar Verma,
learned counsel for the appellant that the impugned order dated
21.05.2015 is liable to be set aside as the learned Single Judge had
not taken into consideration the fact that no departmental
proceeding was initiated and only on the basis of a purported
Inquiry report, the writ petitioner was dismissed from service. It
has been submitted that for the same issue, there have been
litigations but having failed in their endeavour, the respondents
have resorted to a blatant illegality in dismissing the writ petitioner
from service without any reasons.
6. Mr. Rajesh Kumar, learned counsel representing the
Madhupur Municipality, has controverted the submissions of the
learned counsel for the appellant/ writ petitioner by submitting
that in the inquiry report, it has come to light that the writ
petitioner had secured a job on the basis of forged document which
ousted the private respondent no.9 in the writ petitioner in his
endeavour to secure the job despite being better placed than the
writ petitioner in terms of the marks obtained in the Matriculation
examination. Mr. Rajesh Kumar has relied upon the case of R.
Vishwanatha Pillai Vs. State of Kerala and others reported in
(2004) 2 SCC 105.
7. The service career of the writ petitioner seems to have
been mired in controversy, the sole basis being the selection of the
writ petitioner as a Tax Collector through due process of law but by
submission of forged mark sheet of the Matriculation examination
showing the writ petitioner to have secured 522 marks instead of
436 marks, which was the actual marks received by him and in the
process, ousted the private respondent no. 9 of the writ application
who had secured 450 marks. The history of the case would reveal
that there has been a concerted and consistent effort on the part of
the authorities concerned to dislodge the writ petitioner from his
post. The private respondent no. 9 had also entered into the fray by
filing a suit for declaration that the appointment of the writ
petitioner be declared as illegal and void. The writ petitioner was
dismissed from service after two years of his appointment without
any notice but the said illegality was set right by the Deputy
Commissioner, Dumka as the decision of the Municipal Board was
declared ab-initio void. After a lull, the petitioner was once again
terminated from service, but the order of termination was set aside
for the reasons recorded in the said order. Again, the issue of
submission of forged marksheet by the petitioner was raked up
culminating in his termination based on a purported Inquiry Report
and the same having been affirmed by the learned Single Judge, it
is under consideration before this Court.
8. Rule 9 of the Municipal Officers and Servants
(Appointment, Duties, Discipline and Appeal) Rules reads as
follows:-
"Rule-9: No order of dismissal, removal or reduction or
pay shall be passed on an officer or servant, of the
commissioners, unless he :-
(i) has been informed in writing of the ground on which
it is proposed to take action,
(ii) has been served with a copy of the grounds on which
it is proposed to take actions, reduced to the from of a
definite charge or charges, together with a statement
of the allegations on which each charge is based and
of any other circumstances which it is proposed to
take into consideration in passing orders on the case;
(iii) has been afforded an adequate opportunity of
defending himself and to state whether he desires to
be heard in person;
(iv) has been afforded adequate opportunity to adduce
such evidence as may be considered to be
reasonable;
(v) has been allowed to be present during any inquiry
that may be made at his request or at the discretion
of the authority concerned and has been permitted to
cross examine such witnesses as may be produced
against him; and
(vi) has been afforded a reasonable time to show cause
against the imposition of a punishment of dismissal,
removal or reduction in rank or scale if the enquiring
officer has arrived at a provisional conclusion that
such a punishment should be imposed."
9. What would transpire from Rule 9 is of a regular
departmental proceeding to be held by affording reasonable
opportunity of hearing to the delinquent employee once he has
been charged for some allegation connected with his service.
However, as admitted by the respondent, Madhupur Municipality,
no departmental proceeding was initiated. The impugned order to
the writ application, as contained in memo no. 257/1-2 dated
18.05.2009 has referred to an inquiry conducted at the
departmental level by the Deputy Commissioner, Deoghar wherein
the writ petitioner was found to have secured his job on the basis of
a forged mark sheet and by this action he had deprived a genuine
candidate for the said post. This letter of termination is after the
writ petitioner had put in 29 years of service. The entire sequence
of events clearly indicates that the authorities of Madhupur
Municipal Board is averse to holding of a departmental proceeding
so far as the writ petitioner is concerned, as this was the third
occasion by which such act was undertaken by the concerned
respondents.
10. Mr. Rajesh Kumar, learned counsel for the Madhupur
Municipality has submitted about there being no necessity in
holding of a departmental proceeding when the service itself has
been secured by fraud and in such context he has referred to the
case of R. Vishwanatha Pillai Vrs. State of Kerala and others
(Supra) in which it has been held as follows:-
"15. This apart, the appellant obtained the
appointment in the service on the basis that he belonged to
a Scheduled Caste community. When it was found by the
Scrutiny Committee that he did not belong to the Scheduled
Caste community, then the very basis of his appointment
was taken away. His appointment was no appointment in
the eye of the law. He cannot claim a right to the post as he
had usurped the post meant for a reserved candidate by
playing a fraud and producing a false caste certificate.
Unless the appellant can lay a claim to the post on the
basis of his appointment he cannot claim the constitutional
guarantee given under Article 311 of the Constitution. As he
had obtained the appointment on the basis of a false caste
certificate he cannot be considered to be a person who
holds a post within the meaning of Article 311 of the
Constitution of India. Finding recorded by the Scrutiny
Committee that the appellant got the appointment on the
basis of a false caste certificate has become final. The
position, therefore, is that the appellant has usurped the
post which should have gone to a member of the Scheduled
Castes. In view of the finding recorded by the Scrutiny
Committee and upheld up to this Court, he has disqualified
himself to hold the post. The appointment was void from its
inception. It cannot be said that the said void appointment
would enable the appellant to claim that he was holding a
civil post within the meaning of Article 311 of the
Constitution of India. As the appellant had obtained the
appointment by playing a fraud, he cannot be allowed to
take advantage of his own fraud in entering the service and
claim that he was holder of the post entitled to be dealt with
in terms of Article 311 of the Constitution of India or the
Rules framed thereunder. Where an appointment in a
service has been acquired by practising fraud or deceit,
such an appointment is no appointment in law, in service
and in such a situation Article 311 of the Constitution is not
attracted at all."
11. Mr. Rajesh Kumar, learned counsel has stressed upon
"The appointment was void from its inception" as noted in the
aforesaid judgment while submitting that the same matrix will be
applicable in the case of the writ petitioner. The said observation
and direction were issued in the peculiar facts and circumstances
of the case. On delving into the facts of the said case, it seems that
the concerned employee had secured a job as Assistant in the
legislative Secretariat against a post reserved for a Scheduled Caste
candidate. On the basis of a complaint an inquiry was conducted
and it was concluded that the employee does not belong to a
Scheduled Caste community. The matter was thereafter referred to
a scrutiny committee in which the employee had participated, but
the committee rejected his claim that he belongs to a Scheduled
Caste community. The order of the scrutiny committee was put
under challenge by the concerned employee before the High Court,
which dismissed the case and the same was affirmed up to the
Hon'ble Supreme Court. The issue was once again under scrutiny
on account of a direction sought for by the employee not to
terminate his services, but he was unsuccessful in his endeavour
as it was held that the appointment itself being void, he cannot be
said to be holding a civil post within the meaning of Article 311 of
the Constitution of India and as such, there was no necessity of
holding a departmental proceeding.
12. Thus, in the case under reference, it was conclusively
proved that the appointment was secured by practicing fraud and
therefore the concerned employee was precluded from taking
recourse to Article 311 of the Constitution of India. In the present
case as we have noted above, efforts were made by the authorities
to discredit the writ petitioner by alleging fraud but none of the
proceedings earlier instituted conclusively came to a finding
regarding the truthfulness of such allegations based on proper
proof and in consonance to the principles of natural justice. In the
case under reference, the concerned employee had participated in
the proceedings before the scrutiny committee and had subjected
himself to its jurisdiction. However, in the present case, there is no
such participation of the writ petitioner in the proceedings which
was conducted at the departmental level. The entire exercise was
done behind the back of the writ petitioner. It therefore cannot be
concluded that the writ petitioner was not holding a civil post and
as a consequence thereof, Article 311 (2) of the Constitution of
India would come into play. It also must be borne in mind that even
the title suit preferred by the private respondent no.9 proved futile
as the same was dismissed. It seems that no consideration has
been made by the learned Single Judge to the aforesaid aspects
while dismissing the writ application.
13. We, therefore, in the light of our reflections noted above,
set aside the impugned order dated 21.05.2015 passed by the
learned Single Judge in W.P.(S) No. 4214/2009 and quash the
order of termination dated 18.05.2009 as contained in memo no.
257/1-2. As a consequence to such quashment, the benefits
accruing in favour of the writ petitioner have to be calculated and
extended by the Commissioner, Madhupur Municipality to the legal
heirs of the writ petitioner who are the appellants in this appeal
within a period of eight weeks from the date of receipt / production
of a copy of this order.
14. This appeal is allowed.
(Rongon Mukhopadhyay, J.)
(Pradeep Kumar Srivastava, J.)
Shamim/-
