1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 3213 of 2014 ------- 1.Rajendra Munda son of Late Mahagrang Munda, resident of Village Kadma, P.O, P.S. And District: Ranchi. 2.Shiv Narayan Sahu, son of Ranchandra Sahu, resident of village and Post-Sukurhuttu, P.S. Kanke, District: Ranchi. 3.Tirath Lal Baitha, son of Late Nanku Baithaa, resident of village Sukurhuttu, North Region, P.O-Sukurhutta, P.S. Kanke, District: Ranchi. 4.Md. Kafil Ansari son of Md. Safi Alam resident of At and P.O Husor, P.S.Kanke, District: Ranchi. 5.Abul Hassan, son of Late Sk. Amir, resident of Churi Tola, P.O & P.S. Kanke, District: Ranchi. 6.Nirmala Binha, wife of Kransis Toppo resident of Village Nagri, P.O Bukhuri, P.S. Kanke, District: Ranchi. 7.Suman Kumari Pandey, D/o Mundrika Pandey, C/o Mundrika Pandey, Kishore Ganj, No. 7, P.O & P.S. Sukhdeo Nagar, District: Ranchi. 8.Firoz Ansari, son of Md. Quddus Ansari, resident of Semartoli, P.O and P.S. Kanke, District: Ranchi. 9.Vishun Oraon, Son of Late Thuma Oraon, resident of village & P.O Hosor, P.S. Kanke, District: Ranchi. 10.Basant Toppo, son of Bablu Toppo resident of Village Nagri, P.O Bukhran,P.S. Kanke, District: Ranchi. 11.Rajesh Kujur, son of Birsa Oraon, resident of village Patratoli, P.O Kanke, RBC, P.S. Kanke, District: Ranchi. 12.Indra Pahan, son of Adhanu Pahan, resident of village Jhakhra Tanr, P.O & P.S. Ratu, District: Ranchi. 13.Jay Narayan Prasad, son of Late Munshi Ram resident of village Near Seed Directorate, RBC Campus P.O-RBC, P.S. Kanke, District: Ranchi. 14.Md. Hasib, son of Late S.K. Manuruddin resident of village: Patratoli, P.O RBC P.S. Kanke, District: Ranchi. 15.Parvez Alam, son of Alimuddin Ansari, resident of village: Patratoli Kanke, P.O RBC., P.S. Kanke, District: Ranchi 2 16.Parash Nath Mahto son of Late Lakshman Mahto, resident of village Rarha Pool, P.O & P.S. Pithoria, District: Ranchi. 17.Baijnath Prasad, son of Late Jay Govind Prasad, resident of Lakshman Nagar, C-2, P.O & P.S. Kanke, District: Ranchi. 18.Raj Kumar Nayak, son of Late Gudeshwar Nayak resident of village Sukurhuttu (Kadma Dangra) P.O Sukurhuttu, P.S Kanke, District: Ranchi. 19.Vikash Baitha, son of Sri Ganesh Baitha resident of village Sukurhuttu, P.O and P.S. Kanke, District: Ranchi. 20.Tulsi Baitha son of Sri Meghnath Baitha resident of village Bhitha Kanke Road, P.O Ranchi University, P.S. Gona, District: Ranchi. ... Petitioner Versus 1.State of Jharkhand through the Secretary/Principal Secretary, Department of Agriculture and Sugarcane Development having office at Nepal House, P.O and P.S. Doranda, District: Ranchi. 2.Birsa Agriculture University through its Registrar having office at Kanke, P.O and P.S. Kanke Town, and District: Ranchi. 3.The Vice-Chancellor, Birsa Agriculture University having office at Kanke, P.O and P.S.: Kanke, Town and District: Ranchi. 4.The Director (Administration), Birsa Agriculture University having its office at Kanke, P.O and P.S. Kanke Town and District: Ranchi. .... Respondents With W.P.(S) No. 3214 of 2014 ------- 1.Tirath Nath son of Lurka Baitha resident of Malsiring, P.O Malsiring, Via-Ratu, P.S. Pithoriya, District: Ranchi. 2.Alok Kumar son of Ganga Prasad Mahto, resident of Kharagpur, P.O. Kharagpur, P.S Kharagpur, Hariharganj District: Palamau. 3.Jayant Kumar Ram son of Late Arjun Ram, C/o Dr. Ram Chandrika, resident of Bhitha Kanke Road, P.O-Ranchi University, P.S. Gonda, District: Ranchi. 4.Anant Kumar Mandal, son of Late Hem Chandra Mandal resident of village Nildah, P.S. Laghna, P.S. Mittijam, District: Jamtara. 3 5.Arvind Kumar son of Sri Moti Chand Sharma, C/o Sri Moti Chand Sharma, House No. c-4-486, Parmarth Nagar near Gyan Vatika, P.O and P.S. Tipudana, Hatia, District: Ranchi. 6.Dipu Upadhyay son of Sri Dinesh Upadhyay resident C1A/36, C-2 Colony, Rac Bau, P.O – Kanke, P.S. Kanke, District: Ranchi. 7.Basant Oraon son of Sri Sukra Oraon resident of Village Sijua, P.O Ghaghra, P.S. Bero, District: Ranchi. 8.Ravi Shankar Suman, son of Govardhan Ram Rajak resident of village Dhavan Nagar, P.O Gandhi Nagar, P.S. Gonda, Kanke Road, Distrcit: Ranchi. 9.Sunil Kumar Rai, son of Kesav Rai, resident of Phool Nivas, Bazar Tanr, Dangratoli near Kanchan Studio, P.O Kanke, P.S Kanke, District: Ranchi. 10.Arjun Ravidas, son of Kamal Ravidas resident of Barki Sariya Panchayat, Saria, P.O and P.S Sariya, District: Giridih. 11.Vinod Beck son of Sri Bindu Oraon resident of Simartoli P.O Kanke P.S. Kanke, District: Ranchi. 12.Laxmi Das son of Ganpati Ravidas, resident of village Arsendey Boriya Road, P.O Boriya, P.S. Kanke, District: Ranchi. 13.Dharmendra Kumar, son of Sri Moti Chandra Ram, resident of village & P.O Aghor, P.S.-Nagar Untari, District: Garhwa (Jharkhand). . … … ... Petitioners Versus 1.The State of Jharkhand through the Secretary/Principal Secretary, Department of Agriculture and Sugarcane Development having office at Nepal House, P.O and P.S. Doranda, District: Ranchi. 2.Birsa Agriculture University through its Registrar having office at Kanke, P.O and P.S. Kanke Town, and District: Ranchi. 3.The Vice-Chancellor, Birsa Agriculture University having office at Kanke, P.O and P.S.: Kanke, Town and District: Ranchi. 4.The Director (Administration), Birsa Agriculture University having its office at Kanke, P.O and P.S. Kanke Town and District: Ranchi. .... Respondents with W.P. (S) No. 3222 of 2014 1.Ritesh Kumar Tiwary son of Sri Krishna Murari Tiwary resident of Laxman Nagar, C/2, Kanke Road, P.O – Kanke, P.S. Kanke, District: Ranchi. 4 2.Devendra Kumar Singh, son of Late Singheshwar Singh resident of Khalari Bazar Tanr, Ghrit Ghora, P.O & P.S. Khalari, District: Ranchi. 3.Sanjay Kumar son of Sri Ganga Nath Ram, resident of Sector III/A, Qr. No. 495, P.O & P.S. Bokaro, District: Bokaro. 4.Sandeep Kumar Paswan, son of Bindeshwar Ram, resident of Village Kathi Tanr, P.O & P.S Ratu, District: Ranchi. 5.Mukesh Ram son of Ashok Ram resident of Mishigonda, Kande Road, P.O Jawahar Nagar, P.S. Gonda, District: Ranchi. 6.Anita Kumari, D/o Sri Gopi Oraon resident of Sukla Colony New Area, P.O and P.S. Doranda, District: Ranchi. 7.Srinath Sahdeo son of Sri Kali Nath Sahdeo, resident of village Patratoli, P.O & P.S. Kande, District: Ranchi. 8.Sanjay Kumar Sahdeo, son of Sri Harendra Nath Sahdeo resident of village Patratili, P.O & P.S. Kanke, District-Ranchi. 9.Avinash Kumar, son of Late Ramesh Turi resident of Boriya, P.O Borio, Via-Tinpahar, P.S. Borio, District: Sahebganj. 10.Sri Virendra Prasad Sah, son of Sri Uma Shankar Sah resident of village & P.O-Raikinari, P.S. Taljhari, District: Dumka. 11.Ahhilesh Kumar son of Dwarika Thakur resident of Sector-III Market, P.O & P.S.-Dhurwa, District: Ranchi. 12.Santosh Singh son of Dam Singh, resident of Village: P.O and P.S. Kundahit, District: Jamtara. 13.Sanjeet Kumar Mitra son of Haradhan Mitra resident of village& P.O Sagjuria, P.S. Nala, District: Jamtara. 14.Umesh Kumar son of Late Jay Nandan Singh resident of BAU Miniels Quarter, P.O & P.S. Kanke, District: Ranchi. 15.Ravi Kumar son of Ramchandra Sonar, resident of village Boriya Pool, Arsende, P.O-Boriya, P.S. Kanke, District: Ranchi. Versus 1.The State of Jharkhand through the Secretary/Principal Secretary, Department of Agriculture and Sugarcane Development having office at Nepal House, P.O and P.S. Doranda, District: Ranchi. 2.Birsa Agriculture University through its Registrar having office at Kanke, P.O and P.S. Kanke Town, and District: Ranchi. 5 3.The Vice-Chancellor, Birsa Agriculture University having office at Kanke, P.O and P.S.: Kanke, Town and District: Ranchi. 4.The Director (Administration), Birsa Agriculture University having its office at Kanke, P.O and P.S. Kanke Town and District: Ranchi. .... Respondents With W.P.(S) No. 3244 of 2014 Md. Mokhtar Mansuri, son of Abdul Wahab Mansuri, Resident of village and P.O-Sukurhuttu, P.S Kanke, District: Ranchi. Versus 1.Birsa Agriculture University, through its Vice Chancellor, P.O & P.S.-Kanke, Distrist-Ranchi. 2.Director Administration, Birsa Agricultural University, P.O & P.S-Kanke, District: Ranchi ... …. …. Respondents. With W.P. (S) No. 3251 of 2014 Manish Kumar Singh, S/o Late Bijay Kumar Singh, Resident of Williams Town, Opposite State Transport Bus Depot, P.O, P.S. & District: Deoghar. … … … Petitioner. Versus 1.Birsa Agriculture University, through its Vice Chancellor, P.O & P.S.-Kanke, Distrist-Ranchi. 2.Director Administration, Birsa Agricultural University, P.O & P.S-Kanke, District: Ranchi …. …. Respondents. ------ CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ------ For the Petitioners : Mr. Anil Kumar Sinha, Sr. Advocate Mr. Deepak Kumar Dubey, Advocate. (In W.P.(S) Nos. 3213/3214/322 of 2014) M/s Rupesh Singh & Amdrendra Pradhan, Advocates. For the University : Mr. A. Allam, Sr. Advocate. M/s Nehala Sharmin, Amrita Banerjee, Advocates. For the State : M/s P.P. Roy, J.C to G.A. Arup Kr. Dey, J.C to G.P.I Satish Kumar, J.C to G.A ------ C.A.V. on 11.12.2015 Pronounced on 19/02/2016 Per Pramath Patnaik, J.:
6. All these writ petitions have been taken up together and, with the consent of the parties, as common issues involved in all these writ petitions, are being disposed of by this common order.
2. In Writ Petitions, being W.P. (S) Nos. 3213, 3214 and 3222 of 2014, the petitioners have, inter alia, prayed for quashing of Memo No. 911 dated 13.06.2014 whereby services of the petitioners have been terminated and for direction upon the respondents to pay the admitted due arrears of salary for the period 25.05.2011 to 31.07.2011 and 01.04.2014 to 13.06.2014.
3. In Writ Petitions, being W.P. (S) Nos. 3244 and 3251 of 2014, the petitioners have, inter alia, prayed for quashing of Memo No. 911 dated 13.06.2014 whereby petitioners have been terminated from services and for direction upon the respondents to forthwith reinstate the petitioners in services with all consequential benefits.
4. Petitioners in W.P. (S) No. 3213 of 2014 were daily wagers whereas petitioners in W.P. (S) No. 3214 and 3222 of 2014 are direct appointees on Class III and Class IV posts against Advertisement No. 1/2008. Petitioner in W.P. (S) No. 3244 of 2014 was selected on the post of Civil Estimator (One post) and petitioner in W.P. (S) No. 3251 of 2014 was selected on the post of Junior Engineer (Electrical) (One Post) against Advertisement No. 02/2011.
5. The factual matrix, as delineated in the writ applications, being W.P.(S) Nos. 3213, 3214 and 3222 of 2014, in a nutshell is that pursuant to an advertisement bearing Advt. No. 1 of 2008 dated 19.04.2008 for appointment on the post of Class III and 7 Class IV posts, the petitioners applied, after being duly qualified and were allowed to appear in interview on different dates with relevant documents and testimonials. Being selected in interview, petitioners were issued appointment letters and accordingly the petitioner joined their respective posts. It has been averred that even benefit of 6th Pay Revision was extended to the petitioners. It has been submitted that earlier the salary of the petitioners were stopped on the ground of enquiry about the illegality and irregularities in appointment, but, again salary has been paid but salary for the period of 25.05.2011 to 31.07.2011 and 01.04.2014 to 13.06.2014 is still due in the hands of respondents-authorities. One of the petitioners, namely, Jay Narayan Prasad, Petitioner No. 13 in W.P.(S) No. 3213 of 2014 earlier moved before this Court in C.W.J.C No. 1260 of 1989(R), which was disposed of vide order dated 29.08.1989 with a direction to consider the case of the petitioner, who was working on daily wages since long. Another case, being W.P. (S) No. 2717 of 2008 was filed by one of the unsuccessful candidate challenging the roster, which was ultimately dismissed as withdrawn vide order dated 16.09.2009. Again, the petitioner no. 13 along with others preferred W.P. (S) No. 6154 of 2003 with analogous cases, which was disposed of on 26.03.2010 with a direction to consider the case of the petitioner in terms of Advertisement No. 1 of 2008 and to give weightage on qualifications. But to the utter misfortune and consternation, the impugned order of termination dated 13.06.2014 has been issued by the respondents, which is impugned in all these writ applications. 8 6. The facts, as disclosed in the writ applications being W.P.(S) Nos. 3244 & 3251 of 2011, in a nutshell, is that, in pursuance to Advt. No. 2 of 2011 dated 04.06.2014, the petitioners having requisite qualification applied for their respective posts and appeared before the Interview Board/Selection Committee on 07.07.2011 along with educational testimonials and petitioners, on being successful, were issued appointment letters. Accordingly, they submitted their joining, which was duly accepted. It has further been stated that during course of their service, 6 th Pay Revision was also extended to all the petitioners and the petitioners continued to discharge their duty to the utmost satisfaction of the authorities concerned. While continuing as such, the petitioners were served with a letter dated 30.07.2012, by respondent no. 2 for submission of explanation with regard to various irregularities made in appointments in Birsa Agricultural University and questionnaire was served upon the petitioners. In response thereof, the petitioners responded vide letter dated 02.08.2012. But, after lapse of 1 & ½ years, to the utter dismay, the petitioners were issued impugned order of dismissal from services along with other employees on the basis of report of One Man Judicial Commission, headed by Hon’ble Mr. Justice Vikramaditya Prasad, (Retd).
7. Being aggrieved by the impugned order of termination, the petitioners, left with no alternative, efficacious and speedy remedy, have approached this Court invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for redressal of their grievances. 9 8. Counter affidavit has been filed on behalf of Birsa Agriculture University controverting the averments made in the writ applications. It has inter alia, been submitted that some complaints were received by Hon'ble Governor-cum-Chancellor against Advertisement Nos. 1/2008 and 2/2011 in respect of favourism and illegal appointment made by the then Vice- Chancellor, Dr. N.N. Singh, on which, Hon'ble Governor-cum- Chancellor directed that Universities would not proceed with any appointment matter till further order. Thereafter, Principal Secretary to the Hon'ble Governor directed Sri S.S. Rao, O.S.D. (Judl.) to enquire into the matter vide order dated 04.08.2011, who submitted preliminary enquiry report on 19.04.2012 finding prima facie the allegations proved. It has further been stated that thereafter the University called upon explanations from all the newly appointed persons against Advt. No.1/2008 and 2/2011 in a questionnaire format. After receiving the same, it was sent to the Governor's Secretariat with the opinion of the University vide letter dated 30.07.2012. Thereafter, the Hon'ble Governnor-cum- Chancellor's Secretariat referred the matter to Agriculture Department, Government of Jharkhand to constitute a Judicial Enquiry Committee under Section 3 of 'The Commission of Enquiry Act, 1952' to enquire into the illegalities/irregularities committed in appointments made by Birsa Agricultural University. Pursuant to the said direction, One Man Judicial Enquiry Committee was constituted, under the chairmanship of Hon'ble Justice Vikramaditya Prasad, retired Judge of Hon’ble Jharkhand High Court, who enquired into the matter and fixed the 10 liability/involvements of the then Vice-Chancellor and other officials/employees vide its report dated 26.04.2014 and came to the conclusion that overall impression that emerges is that everything was done in hot haste, Government Rules of the statute were not followed and in a nutshell transparency was altogether a casualty. Thereupon, an order has been given by the Hon’ble Governor-cum-Chancellor vide memo dated 12.06.2014, in compliance of which, services of 53 such employees were terminated by the university vide memo dated 13.06.2014. It has further been submitted that Hon’ble Chancellor vide memo dated 26.08.2014 further directed the University to call upon show cause to all responsible officers, who were responsible for that act and the omission in respect of illegalities and irregularity in the matter of appointment made under Advt. Nos. 1 of 2008 and 2 of 2011.
9. Heard Mr. Anil Kumar Sinha, learned senior counsel for the petitioners appearing in W.P. (S) Nos. 3213, 3214 and 3222 of 2014, Mr. Rupesh Singh, learned counsel for the petitioners appearing in W.P. Nos. 3244 and 3251 of 2014 and Mr. A. Allam, learned Sr. S.C. II for the respondents-University.
10. Mr. Sinha, learned senior counsel for the petitioners, appearing in W.P. (S) Nos. 3213, 3214 and 3222 of 2014, strenuously urged before this Court that impugned order of termination has been issued in utter violation of principles of natural justice as before termination of services of petitioners no show cause notice has been issued by the respondents. Learned senior counsel further submits that on perusal of impugned order, 11 it appears that one man judicial enquiry committee was constituted under the chairmanship of Hon'ble Mr. Justice Vikramaditya Prasad (Retd.), but, in the said enquiry, the petitioners were never allowed to participate and on the basis of said enquiry report, the petitioners were terminated from services, without resorting to bare minimum requirement of audi alteram partem. Learned senior counsel further submits that petitioners have been appointed after following the due process of selection in pursuant to the advertisement against the substantive posts, but, the accrued rights of the petitioners have been extinguished by the aforesaid order. Learned senior counsel further submits that in absence of any full-dressed departmental proceeding or issuance of charge-sheet or show cause notice, the action of the respondents in terminating the services of the petitioner amounts to high handedness and arbitrariness of the power, which is not in consonance with Articles 14, 16, 21 and 300-A of the Constitution of India. It has further been submitted that enquiry, which was done to find out the alleged illegalities and irregularities in the process of selection has been done without giving notice to the petitioner and any action basing on the said enquiry report cannot stand to reason on the anvil of Articles 14 and 16 of the Constitution of India. Another ground, which was advanced by learned counsel for the petitioner is that prior to termination of services of the petitioners, they have not been supplied with the enquiry report, which caused serious prejudices thereby impinging the termination order. 12 11. Learned senior counsel for the petitioner referred to Section 3 of the “The Commissions of Inquiry Act, 1952”, which reads as under: “3.Appointment of Commission: (1) The appropriate Government, may,if it is of the opinion that it is necessary so to do, and shall, if a resolution in this behalf is passed by each House of Parliament or, as the case may be, the Legislature of the State, by notification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification, and the Commission so appointed shall make the inquiry and perform the functions accordingly”. Learned senior counsel for the petitioner submits that from bare perusal of Section 3 of the Act in juxtaposition with paragraph 6 sub-paragraphs IV, V and VI of the counter affidavit, it transpires that no such procedure has been followed nor any direction in the Official Gazettee has been issued and in absence of non-adherence of the procedure, the entire enquiry report is vitiated. The learned senior counsel further submits that on perusal of Annexure A to the counter affidavit, it can easily be seen that Section 3 of the Act has not been followed in letter and spirit.
12. Learned senior counsel further referred to Section 8 B. of the “The Commissions of Inquiry Act, 1952”, which reads as under: “8B.Persons likely to be prejudicially affected to be heard.-- If, at any stage of the inquiry, the Commission- (a)considers it necessary to inquire into the conduct of any person; or (b)is of opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, 13 the Commission shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence.: Learned senior counsel for the petitioner submitted that admittedly in the present case, no opportunity of hearing has been afforded to the petitioners, hence, on this ground also the impugned order is liable to set aside.
13. Learned senior counsel further submits that Clause 13.3 of the Birsa Agriculature University Statute, 1976 also speaks that before termination of services one month's notice ought to have been given, which has also not been given in the present case. Learned senior counsel further submitted that Clause 13.9 of the said Statute has also not been followed in the present case, which says that before taking any final decision with regard to minor and major punishments, opportunity of hearing must be given. Learned senior counsel further submits that as per the Statute No. 14.7, the period of probation is two years and after completion of two years probation, the services of the petitioners are deemed to be confirmed so regular full-dressed procedure of termination ought to have been followed.
14. On the report of the enquiry commission, learned senior counsel relied upon a case rendered by Hon'ble Apex Court in the case of T.T. Antony V. State of Kerala & Ors. as reported in AIR2001SC2637 in particular paragraphs 33 and 34, wherein it has been stated that the finding of the inquiry commission report is not binding, it is an intimation or opinion so the State could not have acted upon. Therefore, on the basis of the said 14 report, the services of the petitioner ought not to have been terminated without complying the principles of natural justice and without initiation of any proceeding by the respondents.
15. Referring to the judgment rendered in the case of Chandra Prakash Shahi Vs. State of U.P. & Others as reported in (2000) 5 SCC152 learned counsel for the petitioner submitted that if the termination of the petitioners is punitive in nature, it should not have been passed without affording opportunity and in the same way, learned senior counsel submits that no one can be disturbed without giving the opportunity.
16. Learned senior counsel further relied upon the decision rendered in the case of Mohinder Singh Gill & another Vs. The Chief Election Commissioner, New Delhi & Others as reported in AIR1978SC851 in which, the Hon'ble Apex Court at paragraph 8 speaks that reason cannot be supplemented by way of counter affidavit and it has been submitted that on bare perusal of impugned order, it appears that it is a cryptic and non- speaking order and reasons cannot be supplemented by counter affidavit as propounded by Hon'ble Apex Court in the above case.
17. Supplementing the argument advanced by Mr. Sinha, learned senior counsel, Mr. Rupesh Singh, learned counsel appearing for the petitioners in W.P.(S) No. 3244 and 3251 of 2014 has vehemently submitted that the action of respondent nos. 1 and 2 in issuing the impugned order pertaining to termination from services has been passed in gross violation of principles of natural justice. The learned counsel further submitted that the corporal punishment of termination could not have been awarded 15 without full dressed inquiry and merely on the basis of report of enquiry committee. Learned counsel further submits that petitioners have been denied opportunity of hearing, thereby Constitutional rights of the petitioners enshrined under Article 311 of the Constitution of India have been violated. Learned counsel further submits that on the basis of closed-door enquiry, which was done on the basis of frivolous allegations levelled by disgruntled elements who could not qualify in the due process of selection, the petitioners have been terminated from services. Moreover, the petitioners have been selected after due process of advertisement and process of law by duly constituted Interview Board. It was also obligatory on the part of the Judicial Enquiry Committee to give personal hearing to the petitioners before arriving at the conclusion. Learned counsel further submits that as per the decision of the Hon'ble Apex Court in catena of Judgments, the impugned order of termination from services in service matter entails civil consequences and observation of principles of natural justice is must before issuing any order of punishment. It has also been held that the order of termination being a capital punishment in service jurisprudence, cannot be issued without strict adherence/observance to the principles laid down under Article 311 of the Constitution of India. Learned counsel further submits that the action of the respondent nos. 1 and 2 have got no valid force of law and is in complete violation of provision of the “The Commissions of Inquiry Act, 1952”. Learned counsel further submitted that the mandatory provision of Section 3 and entries in Entry II or Entry III of Schedule VII to Article 246 16 of the Constitution of India, which provides for setting up of such a commission on the issue of appointment or selection process, has been violated.
18. To substantiate his argument, to challenge the appointment of Judicial Commission and its report, learned counsel for the petitioners relied upon the following judgments: (a).(2003) 8 SCC361: State of Bihar Vs. Lal Krishna Advani & Ors. (b).(1993) 1 SCC302: State of Madhya Pradesh Vs. Ajay Singh & Ors. (c).AIR1958SC538: Shri Ram Krishna Dalmia Vs. Justice S.R. Tendolkar (Constitution Bench). Learned counsel for the petitioner submitted that in view of the aforesaid decisions the setting up of Judicial Commission by the concerned authority is illegal and, therefore, the report of the Commission is non-est in the eyes of law. Even otherwise the Hon'ble Supreme Court has held that the report of a validly appointed Judicial Commission does not have force of law. It has also been held that the concerned Commission has got no authority to attack upon even the reputation of a person without an opportunity of hearing. In totality, the entire report of the Judicial Commission is wasteful exercise.
19. Learned counsel further submitted that the Hon'ble Apex Court in the case of Chandra Prakash Shahi Vs. State of U.P. & Ors as reported in (2000) 5 SCC152in particular at paragraphs 12, 27 and 30, the Hon'ble Apex Court has held that in an appropriate case the Court can lift the veil to find out the actual character and nature of the impugned order of removal or dismissal. 17 20. Learned counsel further submits that since the advertisement was made for single available post, therefore, there was no occasion to follow the reservation policy/rule. Learned counsel further submits that the Commission in its report at internal page 26 has recorded that the allegations of the rejected candidates do not wear any flesh, no evidence of nepotism but constitution of selection committee indicates towards favourtism. In this respect, it is submitted that the said conclusion has been generalized without any evidence with respect to the case of the petitioners.
21. Learned counsel further referred to point of Reference No. 9, which is the report at internal page 34, which says “........., in itself there appears to be no apparently wrong particularly when the number of applicants were very small”. It has been submitted that this finding is in context of present petitioners. The commission has not given any finding or responsibility of any officer for illegal appointment, if any, and at best has held transparency as a casualty, but, it relates to Advertisement No. 1/2008, if read holistically. Even otherwise, from perusal of report of Judicial Commission, there is nothing against the petitioners or against their selection. In any case, the commission has never recommended the action initiated by the authority. Even if in such a report caustic remarks has been made regarding favouritism but no conclusive finding has been made for illegal selection so far as petitioners are concerned because they were appointed against the single post having requisite qualifications and there was no scope for earmarking the said post for reservation as per the law laid 18 down by Hon'ble Apex Court in the Case of Indra Sawhney & Ors vs Union of India & Ors. as reported in AIR1993SC477 22. Mr. A. Allam, learned senior counsel for the respondents- university, on the other hand, assiduously submitted that petitioners, who claim to be daily wagers have neither any proper previous engagement nor proper experience certificate so as to take the benefit of past experience. The learned senior counsel further submits that those engagement of petitioners prior to the selection were not even against sanctioned post nor they had valid requisite qualifications. The learned senior counsel further submits that the judgments cited by the counsel for the petitioners are of no help to the petitioners in the present facts and circumstances of the case. So far as invoking of Article 311 of the Constitution of India is concerned, since the concerned posts are not civil posts, so Article 311 is not attracted. Learned counsel further submitted that since the termination order is a simplicitor order so no prior notice or show cause is required in case of probationers/temporary employees as per the decisions of the Hon’ble Apex Court in the case of State of Punjab Vs. Sukhwinder Singh as reported in (2005) 3 SCW3477in particular paragraphs 2,8, 17 and 18 and in the case of Rajesh Kumar Srivastava Vs State of Jharkhand & Ors as reported in (2011) 4 SC447in particular paragraph 10.
23. During course of argument, learned senior counsel referred to Section 20 (7) of The Bihar Agricultural University Act, 1987, which is quoted herein below:
19. “20(7).The Chancellor shall have the right to cause an inspection to be made by such person or persons, as he may direct, of a University including its buildings, laboratories, libraries, museums, workshops and equipment’s and institution, college or hostels maintained or administered by the University of the teaching and other functionary of a University; and to cause any enquiry to be made in respect of any matter connected with administration and finances of a University.” Hence, as per this Section, the Chancellor has got vast power.
24. Learned senior counsel has further referred to preliminary report of the O.S.D (Judl) to Chancellor dated 19.04.2012, wherein it has opined that allegation of favourtism and irregularities have been found true. Learned counsel further referred to enquiry report, where it has categorically been stated that roster has not been followed. Learned senior counsel further submitted that before terminating the services of the petitioners, they were called for explanations in questionnaire form.
25. Learned senior counsel further submitted that so far as grievance of the petitioners that ex parte enquiry was done, it has been submitted in the preliminary enquiry done by O.S.D (Judl.) to Governor, the member of entire selection Committee including Chairman were heard in day-to-day proceeding and only thereafter, he submitted his report finding the allegations proved. Secondly, the One Man Judicial Commission had also issued public notice in respect of legal value of appointment through Advt. 1/2008 and 2/2011 and to submit their written opinion before Enquiry Commission on a particular date for hearing. 20 However, it is the petitioners, who did not opt either to appear before the Commission or file their written statement. Therefore, it cannot be said that the entire enquiry has been done on behalf of complainant, who are unsuccessful candidate.
26. Learned senior counsel further submits that the petitioners were engaged in daily wages workers in the University against norms and without any sanctioned post. Their capacity was changed time to time as per the necessity of the work in the University.
27. Having heard learned counsels for the parties at length and on perusal of the documents, I am of the considered view that the petitioners have been able to make out a case for interference basing on following foundational facts coupled with legal provisions and for the reasons stated herein below: (i).The petitioners in the aforesaid writ applications are aggrieved by the impugned order of termination dated 13.06.2014, which have been passed basing on enquiry report submitted by “One Man Judicial Commission”, but, admittedly without any full dressed enquiry or even without issuing show cause notice to the petitioners. (ii).It has further been averred in the writ applications that prior to selection of the petitioners in W.P. (S) No. 3214 of 2014, pursuant to Advt No. 1/2008, petitioners rendered considerable length of service as daily wagers in Class IV and Class III posts. However, there is no denial of the fact that the petitioners have been engaged in pursuance to the selection pursuant to advt. no. 1 of 2008 after giving 21 weightage in respect of their service as daily wagers. Whatever may be their tenure, their services have been terminated without any show cause notice or without full dressed enquiry and even without following the bare minimum requirement of principles of natural justice or audi alteram partem. By no stretch of imagination, the impugned order of termination dated 13.06.2014 can be sustainable in the eye of law in view of the catena of judgments enunciated by Hon’ble the Apex Court on that score, in particular, the celebrated judgment rendered in the case of Indu Bhushan Dwivedi Vs. State of Jharkhand and another as reported in (2010) 11 SCC278 (iii).Furthermore, Section 8 (B) of “The Commission of Enquiry Act, 1952”, clearly stipulates that persons likely to be prejudicially affected are to be heard and even allow them to produce evidence in their defense. Admittedly, in the instant case, no individual notice has been issued to the affected person to submit their defense when action was supposed to be taken to their detriment. In this regard, argument advanced by learned counsel for the petitioners appears to be justified because apart from serving questionnaire in the form of “YES’ or ‘NO’, no public notice or document whatsoever has been cited by the respondents so as to bring notice of this Court that in the enquiry, the affected person were noticed. Therefore, Section 8(B) of “The Commission of Enquiry Act, 1952”, has not been adhered to. So any action in pursuance to the Enquiry 22 Commission Report submitted by the Enquiry Committee has resulted in evil/civil consequence violating Articles 14,16, 21 and 300-A of the Constitution of India. (iv).The impugned order of termination dated 13.06.2014 is couched in a stigmatic language, which is punitive in nature and, therefore, it could not have been culminated in termination without affording opportunity as per the decision of Hon’ble Apex Court in the case of Chandra Prakash Shahi (Supra).
28. On cumulative effect of aforesaid facts, reasons and judicial pronouncements, the impugned order of termination dated 13.06.2014, being not legally sustainable, is hereby quashed and set aside, on the anvil of the premises and the reasonings given in the foregoing paragraphs and on the touchstones of fair play, principles of natural justice and principle of audi alteram partem, and the respondents are directed to reinstate the petitioners in services on their respective posts forthwith. However, liberty is reserved with the respondents to initiate de novo proceedings, if so legally advised.
29. With the aforesaid observations and directions, the writ petitions stand disposed of. (Pramath Patnaik, J.) Alankar/-