Full Judgment
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 2153 of 2013 Kaushalendra Kumar, son of Late Tarkeshwar Sharma, resident of - Village Kespa, Post Office-Kespa, Police Station-Alipur, District-Gaya, Bihar. .... Petitioner Versus 1. The State of Jharkhand, through the director General of Police, Jharkhand Police Headquarters, post office-Dhurwa, Police Station-Dhurwa, District- Ranchi.
2. The Senior Superintendent of Police, Singhbhum East, Jamshedpur, Post Office-Jamshedpur, Police Station-Jamshedpur, District-Singhbhum East, Jharkhand.
3. Superintendent of Police, Chatra, Post Office-Chatra, Police Station- Chatra, District-Chatra, Jharkhand. ... Respondents --- CORAM : HON'BLE MR. JUSTICE PRAMATH PATNAIK --- For the Petitioners : M/s Rajendra Krishna & Saurabh Shekhar , Advocates For the Respondents : Mr. Vikash Kumar, J.C to A.A.G ….... CAV on 06/01/2017 Pronounced on 13/09/2017 Per Pramath Patnaik, J.
In the accompanied writ application, the prayer has been made for quashing the order dated 16.02.2013 issued by the respondent no.2 pertaining to dismissal of the petitioner from services and for direction commanding the respondents to forthwith reinstate in services alongwith all consequential benefits.
2. The factual matrix are depicted in the writ application, in a nutshell is that in pursuance to an advertisement for appointment of Constable in the year, 1983, the petitioner submitted his application and after undergoing 2 process of selection, the petitioner was declared successful in all physical examination. But with respect to his height, since height of the petitioner was 167 Cms. and the minimum requirement of the height was 165 Cms. but the minimum height of the selected candidates was 182 Cms. and hence, the request was made by mother of the petitioner for relaxation in the height from the then Director General-cum-Inspector General of Police, Bihar and on receipt of the said application, the Director General-cum-Inspector General of Police, Bihar on sympathetical consideration issued direction to the competent authority to give relaxation in the height of the petitioner on humanitarian ground. Thereafter, the petitioner was offered his appointment letter on 25.05.1999, which would be apparent from the true copy of the appointment letter as contained and communicated to the petitioner vide covering letter dated 05.03.2011. Thereafter, the petitioner had given his joining there in the district of Hazaribagh. From 1999 till 19.04.2003 the petitioner continued in the district of Hazaribagh thereafter, he was transferred to Jamshedpur vide memo dated 19.04.2003. On communication vide memo dated 05.03.2011 issued by the Inspector General of Police (Headquarter), Jharkhand to the mother of the petitioner has been made intimating the rejection for application dated 13.12.2010 for appointment of her son Kaushalendra Kumar on the ground of suppression all material on facts as has been held by the Inquiry Committee. In the inquiry, it has surfaced that the appointment has been obtained by making false statement and on the basis of forged documents i.e. on the basis of the facts that father of the petitioner has retired on medical unfitness ground and as such the respondent authority issued the order of suspension as contained in memo dated 31.03.2011 and the decision was taken by the department to initiate a 3 departmental proceeding for forthwith removing the petitioner from services. In pursuance to direction dated 05.03.2011, the memorandum of charge has been served on the petitioner on the allegation that the petitioner has got appointment by way of misleading the department as evident from Annexure- 10 and 11 to the writ petition. In the inquiry proceeding, the petitioner appeared and demanded certain documents. On the basis of which, the charge has been framed. The inquiry officer submitted the inquiry report before the respondent no.2 who is the disciplinary authority and in the inquiry report, opinion has been given that in spite of repeated direction given to the witnesses to prove the charges and in spite of specific direction to the presenting officer to provide the relevant documents, none of the witnesses has turned up in support proving the charge. Since, the entire incidence is related with the Chatra District Police Force or to the State of Bihar, hence the entire file is being returned. The copy of the inquiry report was supplied to the petitioner. After perusal of the inquiry report vide Annexure-10 to the writ petition it appears that respondent no.2 who is the disciplinary authority but instead of passing the final order, issued communication addressed to the respondent no.3 requesting him to initiate departmental proceeding afresh as per Annexure-13 to the writ petition. When the record was transmitted by respondent no.2 to respondent no.3, the petitioner challenged the same in W.P.(S) No.789 of 2012 which was disposed of on 20.12.2012 vide Annexure-2 to the writ petition. Thereafter, the petitioner has been served with a copy of the communication dated 16.04.2012 for giving his final reply. Thereafter, show cause notice was issued on 13.10.2012 to give his reply within 15 days failing which it would be presumed that petitioner has nothing to say in his defence and the department will be constrained to pass final 4 order as per Annexure-15 to the writ petition. Final order dated 16.02.2013, the order of dismissal has been passed against the petitioner on the ground that the inquiry officer found the charges proved against the petitioner as evident from Annexure-18 to the writ petition. Being aggrieved by and dissatisfied with the impugned order dated 16.02.2013 vide Annexure-18, the writ petitioner left with no other alternative, efficacious and speedy remedy has knocked the door of this Court under Article 226 of the Constitution of India for redressal of his grievance.
3. Learned counsel for the petitioner has submitted with vehemence that the impugned order of punishment has been inflicted on the basis of finding conducted by the inquiry officer which is inconclusive by which the inquiry officer has relinquished himself from conducting inquiry and the inquiry report filed by the respondent no.2 who has returned to respondent no.3 for further inquiry. In the absence of any finding given by the inquiry officer, the impugned order vide Annexure-18 is not legally sustainable. Learned counsel for the petitioner further submits that the departmental inquiry has been initiated on the basis of one application allegedly sent by mother of the petitioner for the purpose of his appointment, application dated 13.12.2010, while the petitioner was already in service and was appointed on 25.05.1999. Apart from this, there was no complaint by any private person, on which the inquiry would have been initiated. It is highly improbable that if a person is already in service his mother would send a letter for compassionate appointment and that too after ten years of his appointment and the veracity of the letter has not been verified by the respondent authority. Moreover, mother of the petitioner has not been examined, therefore, from the very beginning enquiry seems to have been undertaken on a very illogical and 5 under highly improbable circumstances. Learned counsel for the petitioner further submits that the entire case hinges on the misrepresentation by the time of appointment which is infact a misconduct that is required to be proved in law and procedure. Learned counsel for the petitioner has referred to the decisions in the case of Avtar Singh Vs. Union of India and others, (2016) 8 SCC471more particularly paragraph no.33, the Hon'ble Apex Court has been pleased to hold that any appointment due to misrepresentation or fraud has to be vitiated, but a rider has been added saying that in case of confirmed appointees, a due departmental proceeding has to be conducted before reaching to a formal conclusion of misrepresentation, which is misconduct. Therefore, the provisions of the Article 311 of the Constitution has been made applicable to the confirmed employee and the same is applicable to the petitioner who was appointed in the year, 1999 and the proceeding was initiated in the year, 2011 after lapse of 13 years of his services.
4. Controverting the averments made in the writ application, a counter- affidavit has been filed on behalf of the respondent no.2. In the counter- affidavit, it has been stated that after physical and other formalities for appointment to petitioner got appointment vide DO55399 dated 25.05.1999 with a condition mentioned therein that in case of verification of character and documents if any irregularities or false information are found then in that condition his services will be terminated with immediate effect as evident from Annexure-A to the counter-affidavit. In course of inquiry and verification of documents, it was found that the petitioner has taken a job on the ground of fake documents submitted by him, accordingly vide order dated 31.03.2011, the petitioner was suspended from the job with payment of 6 subsistence allowance as per Annexure-B to the counter-affidavit. It has further been submitted that the petitioner has taken the service on compassionate ground. It was mentioned by him that his father Late Tarkeshwar Sharma Police 908 become handicapped in a extremist incident, therefore, on the basis of compassion he may be appointed as constable. The photo copy of the memo dated 19.12.1993 has been annexed as Annexure-C to the counter-affidavit. It has further been submitted that the inquiry was made, it was found that Tarkeshwar Sharma, Police 908 was retired in normal way not as it has been mentioned by the petitioner. The details of inquiry has been conducted by A.S.I. Binod Kumar Verma, Chatra on the instruction of order dated 29.12.2010 of the Superintendent of Police, Chatra and memo dated 14.12.2010 of Director General of Police-cum-Inspector General of Police in which detail of his family, name and address of his village, father's name of the petitioner Late Tarkeshwar Sharma etc. it has been revealed that the petitioner has obtained the service fraudulently by submitting forged documents, suppressing material facts and accordingly he was suspended from the services as evident from inquiry report dated 22.01.2011 vide Annexure-D to the counter-affidavit. It has further been submitted that the petitioner after knowing that a departmental proceeding has been initiated, he played all the tactics and even went before the Hon'ble Court in two writ matters vide W.P. No.2075/2011 and W.P. No.789/2012, one has been dismissed and other was disposed of respectively and took the help of RTI for delaying the proceedings, but finally he appeared and submitted his show cause, but did not file his final explanation and absconded from the Head quarters. The petitioner was given full opportunity to put forth his point and all the process was exhausted thoroughly in departmental proceeding and the 7 petitioner was held guilty of the charges and accordingly, dismissed from services vide East Singhbhum District order no.458 of 2013 vide memo dated 16.02.2013 as per Annexure-F to the counter-affidavit. It has further been submitted that the petitioner got appointment by submitting forged document but also his brother has used the same tactics and got appointment at Ranchi on humanitarian ground and both the brothers have been dismissed from services. This fact has been explained in the inquiry report conducted by Binod Kumar Verma, ASI, Chatra dated 22.01.2011. Moreover knowing that he has been dismissed from services, the petitioner refused to accept the order and has absconded for last four years. So, there is no illegalities and infirmities in the departmental proceeding. It has further been submitted that the conducting officer conducted inquiry and after going thoroughly in the matter, held the petitioner's guilty of charges levelled against him as per the final opinion dated 30.04.2012 vide Annexure-G to the counter-affidavit.
5. Learned J.C to A.A.G for the respondent-State has assiduously defended the action of the respondents and has reiterated the submissions made in the counter-affidavit. Learned counsel for the State has submitted that on perusal of the Annexure-G of the counter-affidavit, the inquiry report dated 30.04.2012, it would be apparent that the petitioner has resorted to misrepresentation of facts and no court will allow a person to keep an advantage which he has obtained by forged document since fraud unravels everything. Learned counsel for the respondents further submits that compassionate appointment is based on forged document or by suppression of facts, no equity would lean in favour of petitioner since fraud vitiates everything. 8 6. After giving my anxious consideration to the submissions made at the Bar and on perusal of the relevant records, I am of the considered view that the petitioner has been able to make out a case for interference, due to the following facts, reasons and judicial pronouncements:- (I) In the instant case, the inquiry against the petitioner which has been initiated on the basis of one application dated 13.12.2010 allegedly sent by the mother of the petitioner for the purposes of his appointment, while the petitioner was already in service having been appointed on 25.05.1999. From the documents, it appears that there was no other complaint by any persons except the said letter allegedly sent by the mother of the petitioner, which appears to be improbable and due to the facts that the petitioner was already in services and has rendered more than 10 years of service. The alleged letter which has been issued by the mother of the petitioner, the veracity of which has not been proved nor the mother of the petitioner has been examined so as to come to a conclusive finding. Therefore, the initiation of proceeding seems to have been proceeded on a very unusual and improbable circumstances. (II) That the charges levelled against the petitioner is that:- (i) The petitioner misrepresented the fact that his father was injured in extremists attack to gain appointment on compassionate ground. (ii) The petitioner misrepresented in giving wrong address at the time of appointment. The above mentioned allegations is in fact misconduct that was required to be proved in accordance with law and procedure. The point taken by the respondents that the fraud vitiates everything is a well settled principles of law but so far as the present case is concerned, relying upon the decision of the Hon'ble Apex Court as reported in 2016 (8) SCC471 at 9 paragraph 33 in the case of Avtar Singh Vrs. Union of India and others wherein the Hon'ble Apex Court has been pleased to hold that “any appointment due to misrepresentation or fraud has to be vitiated, but a rider has been added saying that in case of confirmed appointees a due departmental proceeding has to be conducted before reaching to a formal conclusion of misrepresentation, which in essence is a form of misconduct.” Thus, the provisions of Article 311(2) of the Constitution has been made applicable to the confirmed employees and the same provision is also applicable to the case of the petitioner, was appointed in the year 1999 and the proceeding was initiated in 2011 i.e. after lapse of 13 years of joining of his services. Therefore, this is a case where the departmental proceeding has not been conducted in a fair manner by affording all reasonable opportunity to the petitioner. On perusal of the order dated 05.03.2011 vide Annexure-10 to the writ application, it would be clear that the order of Inspector General of Police (Headquarter), Jharkhand, Ranchi to the competent authority to initiate a departmental proceeding and dismiss the petitioner from services, the very proceeding has been initiated with a preoccupied, prejudged and prejudiced mind and the letter vide Annexure-10 certainly has influenced the out come of departmental proceeding thereby visiting the petitioner with major punishment of dismissal from services. (III) The departmental proceeding which has been initiated with a pre- decided mind is against the principles of natural justice and this view gets fortified by the principles, which has been endorsed in the case of E.C.I.L., Hyderabad and others Vrs. B. Karunakar and others, reported in 1993 (4) SCC727 Therefore, the departmental proceeding is devoid of merit on the settled proposition of law, because a fair proceeding which were pre- 10 requisite in the case of misrepresentation of confirmed employee was not followed, instead the same was initiated with a predetermined view, which is unfair, de hors the rule and being breach of principles of natural justice and the view of the Hon'ble Apex Court in Meneka Gandhi case as reported in 1978 SCR (2) 621, the Hon'ble Apex Court has held, if anything has to be taken away from a person, due procedure of law has to be followed. So far as findings of the inquiry officer is concerned, the same is bereft of the most clinching evidences i.e. the copy of the application of compassionate appointment and letter of appointment filed on compassionate ground and the most important material witness that the mother of the petitioner who was author of the alleged letter dated 13.12.2010 has not been examined, which also cast doubt on the findings of the inquiry officer. Therefore, conclusion reached by the disciplinary authority being based on perfunctory inquiry and perverse findings cannot be sustained in the eye of law. In that respect, the view of Hon'ble Apex Court in the case of Roop Singh Negi Vs. Punjab National Bank & Others, reported in 2009 (2) SCC570and also in the case of Union of India & Others Vs. Gyan Chand Chattar reported in 2009 (12) SCC78where the Hon'ble Apex Court in the case of Roop Singh Negi (supra) has been pleased to hold in paragraph-23 that the report of the enquiry officer which is based on merely ipse-dixit on surmises and conjectures, could not be sustained. The inferences were not supported by any evidence as well suspicion howsoever high, can under no circumstances be held to be a substitute for legal proof. Similar view has also been expressed by the Hon'ble Apex Court in the case of Union of India and others Vrs. Gyan chand Chattar, reported in 2009 (12) SCC78 11 7. In view of the reasons as stated in the foregoing paragraphs and as logical sequitur thereto, the impugned order dated 16.02.2013 pertaining to dismissal from services is hereby quashed and set aside and the respondents are at liberty to start the de novo proceeding from the stage of supply of relevant documents and examination witnesses and conclude the proceeding as expeditiously preferably within a period of six months from the date of receipt or communication of order and after conclusion of the proceeding, pass appropriate orders in accordance with law.
8. With the aforesaid observations and directions, the writ petition stands disposed of. (Pramath Patnaik, J.) RKM N.A.F.R