Pradip Kumar Vs. State of Bihar and ors. - Court Judgment

Excerpt:
bihar government servants conduct rules, 1976 - appointment of petitioner, as driver in judgeship in civil court--termination on ground of criminal antecedents and pendency of criminal case under sections 323, 147, 148, 149, 37, 448, 307 and 337, i.p.c. and section 27, arms act and obtaining service of driver on forged certificate--no departmental proceedings initiated--no opportunity given to petitioner, nor ever asked to show cause in respect of allegations relating to production of forged certificate--non-application of mind by appointing authority/disciplinary authority was evident from fact though d.j. exonerated petitioner from all sorts of allegations as were levelled--held, impugned order of termination was illegal and set aside--petitioner directed to be re-instated--but, instant..... s.j. mukhopadhaya, j.1. the petitioner who was in the services of the civil court, munger, has challenged the order no. 34(p) dated 1st april, 1998, passed by the learned district & sessions judge, munger, whereby and whereunder, his services were terminated w.e.f. 2nd april, 1998.2. as the case can be disposed of on a short point, it is not necessary to discuss all the facts, except the relevant one.3. the petitioner was appointed as a driver on purely temporary basis in the judgeship of munger, vide order dated 15th may, 1996, issued by the learned district & sessions judge, munger. such appointment was made subject to production of medical fitness certificate and production of all certificates, testimonials and valid driving licence for verification at the time of joining. on such.....

Judgment:

S.J. Mukhopadhaya, J.

1. The petitioner who was in the services of the Civil Court, Munger, has challenged the order No. 34(P) dated 1st April, 1998, passed by the learned District & Sessions Judge, Munger, whereby and whereunder, his services were terminated w.e.f. 2nd April, 1998.

2. As the case can be disposed of on a short point, it is not necessary to discuss all the facts, except the relevant one.

3. The petitioner was appointed as a Driver on purely temporary basis in the judgeship of Munger, vide order dated 15th May, 1996, issued by the learned District & Sessions Judge, Munger. Such appointment was made subject to production of medical fitness certificate and production of all certificates, testimonials and valid driving licence for verification at the time of joining. On such production, the petitioner joined the services in the Judgeship at Munger and continued to function as Driver. 4. It appears that earlier to his appointment, the petitioner was made accused in one G.R. Case No. 227/85 and convicted under Section 323 of I.P.C., vide judgment dated 20th May, 1987, passed by Judicial Magistrate, 2nd Class, Munger. Criminal Appeal No. 103/87 preferred against the same was disposed of by learned 2nd Addl Sessions Judge, Munger, wherein while conviction was affirmed, the appellate Court set aside the order of sentence and directed that instead of substantive sentence, the convicts, including petitioner be released on execution of probation bond for a sum of Rs. 2,000/- with two sureties of the like amount each, for a period of one year.

5. Against the appellate order, the petitioner moved before this Court in Criminal Revision No. 140/92, which was disposed of on 2nd July, 1992. This Court while disposing of the revision case, observed that the order passed by the appellate Court, directed the petitioner to be on probation for his good conduct to maintain peace. On execution of such bond, it shall not prejudice in the matter of any service, either Government or private or any election.

6. Admittedly, while in service, another Kotwali P.S. Case No. 173/97 has been instituted under Sections 147, 148, 149, 379, 323, 448, 307 and 337 of I.P.C. along with Section 27 of the Arms Act at the instance of informant, namely, Raghunandan Mandal. The petitioner was made one of the accused in the said case, which is pending.

A counter-case with respect to the same occurrence has also been instituted by co-accused persons, vide Kotwali P.S. Case No. 174/97 against the said informant Raghunandan Mandal and others under Sections 147, 148, 367, 337, 323, 344 and 427 of I.P.C., as well as Section 27 of the Arms Act, wherein it is reported alleged occurrence of assault and counter-assault by and against both the parties.

It further appears that a confidential letter was written by one Ashok Mandal of Belan Bazar, Munger on 17th July, 1997 (Annexure HC/A) addressed to the Hon'ble the Chief Justice of Patna High Court alleging suppressing of fact and production of forged certificate in the matter of appointment of petitioner. While it was alleged that the petitioner obtained service in the Civil Court, Munger on production of forged certificate, it was also informed that the petitioner is a convict in G.R. Case No. 227/85. He has been made accused in another criminal case and being employee of Civil Court, is making pairvy to the concerned Magistrate and A.D.J.

The aforesaid confidential letter purported to have been written by Ashok Mandal was forwarded to the learned District & Sessions Judge, Munger for necessary inquiry and comments by High Court's letter No. 5011-Adm. (Misc. Section) dated 26th/27th October, 1997. The learned District & Sessions Judge, Munger, on such inquiry submitted his report, vide letter No. 3412 dated 6th October, 1997 (Annexure-13). While he held that the allegation made against the petitioner is false, the learned District Judge further observed that the certificate was not forged and the relevant order of conviction did not stand impediment in the matter of appointment of petitioner.

So far as pendency of Kotwali P.S. case No. 173/97 is concerned, it was reported that counter-case No. 174/97 was pending and the petitioner has been granted bail by the Court and he was never taken in custody in pursuance of the said case. The learned District & Sessions Judge specifically opined that the pendency of Kotwali P.S. Case No. 172/ 97 bears no significance so far as continuance of petitioner as Driver in Civil Court is concerned.

7. The relevant extract of report submitted by learned-District & Sessions Judge, Munger dated 6th October, 1997, reads as follows:

As said above Mr. Pradeep Kumar Mandal has been appointed as driver to the Judgeship in the middle of the year 1996, vide office order No. 127 (p) dated 15-5-96, but the allegation made against him by the allegation petitioner is absolutely false. It is not true that Pradeep Kumar has been appointed as driver on forged certificate. So far as his conviction in G.R. case No. 227/85 is concerned, it is true that Pradeep Kumar in the above criminal case was convicted under Section 323 of the I.P.C. by judgment dated 20-5-87 of Shri Vijay Kumar Mandal, Judicial Magistrate, 2nd Class, Munger and was sentenced to undergo 3 months' R.I. and it is also true that on appeal the order of conviction was confirmed by the 2nd Addl. District & Sessions Judge, Munger under Criminal Appeal No. 103/87. But, it transpires that the 2nd Addl. Sessions Judge while confirming the order of conviction of the trial Court set aside the order of sentence and directed the appellant Pradeep Mandal and other three be released on executing probation bond for a sum of Rs. 2,000/- with two sureties of the like amount each for a period of one year. I further find that against that order passed under Criminal appeal the appellant including Pradeep Mandal filed Criminal Revision No. 140/92 in the Hon'ble Court which was disposed of by dated 2-7-92 and the Hon'ble Court while disposing of the Revision observed that the order passed by the appellate Court directing the petitioners to be on probation of their good conduct to maintain peace on execution of bond shall not prejudice them (the petitioners' accused) in the matter of any service either Government or private or any election. Thus, the relevant order of conviction of the trial Court which was confirmed by the appellate Court did not stand as impediment in the matter of appointment of Pradeep Mandal as driver.

So far as, his alleged present prosecution is concerned, it is true that Mr. Pradeep Kumar stands as one of the accused in Kotwali P.S. case No. 173/97 instituted under Section 147, 148, 149, 379, 323, 448 and 307, 337 of the I.P.C. as well as 27 of the Arms Act at the instance of the informant named as Raghunandan Mandal, but on inquiry, it transpires that a counter-case well, with respect to the same occurrence, was instituted by the co-accused persons vide Kotwali P.S. case No. 174/97 against the informant Raghunandan Mandal and others under Sections 147, 148, 367, 337, 324 and 427 of the I.P.C. as well as 27 of the Arms Act and so there were reported alleged occurrence of assault and counter-assault by and against both the parties and considering this all the accused-persons including Pradeep Mandal have been granted bail by the Court and Pradeep Kumar did never go to jail in the said case. Therefore, this prosecution of Pradeep Mandal as well, in Kotwali P.S. case No. 173/97 bears no-significance so far as his continuing in the appointment as driver in the Civil Court is concerned.

So far as the other aspect of the allegation in the relevant petitioner of Ashok Mandal is concerned, that also bears no truth and the allegation is simply designed with mischief. Since there stood no disqualification with Pradeep Mandal in the matter of appointment and even the order of conviction of the trial Court which was confirmed by the appellate Court constituted no disqualification for him he was appointed as driver to the Civil Court by the predecessor District & Sessions Judge and so the allegation petition is absolutely false. The allegation petitioner also is found to be a fake and non-existent person.

8. Admittedly, therefore, no departmental proceeding was initiated and petitioner was not given any opportunity. This Court from its administrative side vide its letter No, 1004 dated 10th March, 1998 (Annexure HC/B) informed the learned District & Sessions Judge, Munger that the Court was of the view that a person like petitioner with such criminal antecedents, as referred in letter No. 3412 dated 6th October, 1997, should not continue as a Driver in Civil Court.

9. On receipt of such observation from the administrative side of the Court, the learned District & Sessions Judge, Munger giving reference of this Court's letter No. 1004 dated 10th March, 1998 (Annexure-HC/B) issued the impugned order of termination dated 1st April, 1998.

10. Dr. Sadanand Jha, learned senior Counsel appearing on behalf of High Court submitted that in view of criminal antecedents of the petitioner, his services were terminated. However, the learned Counsel failed to give satisfactory reply relating to observation made by this Court on 2nd July, 1992 in Criminal Revision No. 140/92, wherein this Court held that the appellate Court's order shall not prejudice in the matter of any service, either Government or private. He also failed to bring on record any evidence to show that the aforesaid judicial order of this Court was taken into consideration while this Court made observation, vide letter No. 1004 dated 10th March, 1998 (Annexure-HC/B) from its administrative side.

11. Dr. Jha made reliance on 'Bihar Government Servants Conduct Rules, 1976'. According to him, the petitioner was liable to inform the appointing authority/disciplinary authority relating to lodging of criminal case against him (Kotwali P.S. Case No. 173/97), The petitioner having not informed the matter, the action amounts to misconduct and for such admitted misconduct, no inquiry was required to be made.

Reliance was placed on Supreme Court decision in the case of Dr. Dilip Kumar Deka and Anr. v. State of Assam and Anr. reported in : (1996)6SCC234 (at page 237). However, such submission cannot be accepted in view of decision of Supreme Court in the case of Jamail Singh and Ors. v. State of Punjab and Ors. reported in : (1986)IILLJ268SC , and the settled principles of law.

The case of Dr. Dilip Kumar Deka (supra), is not relevant for the purpose in the present case. That was a case where adverse remarks was made by High Court from its judicial side against two officials (doctors). They moved before Supreme Court for expunction of disperging remarks. The Supreme Court while taking into consideration the test to be applied for dealing with the question of expunction of remarks, observed that judicial property, and restrain is expected from every one discharging judicial function. No finding was given that a penal order can be passed on allegation of misconduct or past conduct, even without giving opportunity to the delinquent concerned.

On the other hand, in the case of Jarnail Singh and others (supra), the Supreme Court set aside the order of termination being violative of Article 311(2) of Constitution of India, being based on adverse remarks and on certain other allegations.

12. It is not in dispute that no rule/guidelines laid down by the respondents, stipulating a candidate to report antecedents at the time of appointment. No such stipulation was made either in the advertisement or during the interview or in the order of appointment that was issued. No inquiry by any agency is stipulated under law/guidelines before providing appointment against Class-III/Class-IV posts, including driver. The petitioner was never asked to report relating to his antecedents.

13. It is not in dispute that the learned District & Sessions Judge is the appointing authority for Class-Ill and IV posts, including the post of driver. The High Court from its administrative side has the supervisory jurisdiction under Article 229 of the Constitution to deal with such matter and to entertain appeal if preferred by a Civil Court employee against any order passed by the learned District & Sessions Judges.

14. There is no rule/guidelines issued to terminate the services of an employee on mere lodging of one F.I.R., during the pendency of a criminal case.

15. In the present case, admittedly, the petitioner was never asked to show cause in respect of allegations relating to production of forged certificate ; no departmental inquiry was conducted on alleged production of forged certificate, criminal antecedents and/or pendency of the present criminal case.

16. The learned District Judge, Munger vide his report dated 6th October, 1997 gave clean chit in favour of petitioner and also informed that the complainant so called Ashok Mandal was found to be a fake and nonexistent person. It further appears that one Ashok Mandal, son of Batoran Mandal submitted affidavit before the learned District & Sessions Judge on 29th April, 1998 that he had not filed any complaint petition against the petitioner. In spite of the aforesaid facts, the High Court from its administrative side made observation for non-continuance of petitioner for such antecedents, vide letter No. 1004 dated 10th March, 1998 which cannot be held to be legal.

17. This apart, the non-application of mind by the appointing authority/disciplinary authority is evident from the fact that though the learned District & Sessions Judge exonerated the petitioner from all sorts of allegations as were levelled but giving reference of same allegations, issued the impugned order of termination dated 1st April, 1998, stating reference of High Court's letter therein, the master relating to termination of petitioner shows the abdication of power by the learned District & Sessions Judge, Munger in favour of administrative side of High Court, who generally sits in appeal against an order passed by the District & Sessions Judge.

18. For the reasons aforesaid, I hold the impugned order of termination dated 1st April, 1998, as illegal and set aside the same. The petitioner stands reinstated. However, this order shall not stand in the way of the Respondents to proceed in the matter, in accordance with law, taking into consideration the Kotwali P.S. Case No. 173/97, in which the petitioner has been made an accused and is pending.

19. The writ petition is allowed with aforesaid observations.