Abhay Nath Manjhi Vs. the State of Jharkhand and ors. - Court Judgment

Excerpt:
service-discharge from service-any appointment which has been obtained by practising fraud or deceit, is illegal since its inception-allegation of obtaining employment by giving false caste certificate-settled requirements in law for conducting a disciplinary proceeding followed-order passed after due compliance of principles of natural justice and after due consideration of all relevant aspects of matter-article 311 is not attracted in instant case- petition dismissed. - constitution of india. articles 12 & 226: [m. karpaga vinayagam, c.j., narendra nath tiwari & d.p.singh, jj] writ petition - maintainability - whether state co-operative milk producers federation ltd., is a state within meaning of article 12 ? - held, from perusal of relevant rules of byelaws, it is clear that state government has no role to play either in policy decision for raising funds for federation or its expenditure and thus have no financial control. further there is nothing to indicate that government has any functional and administrative control over federation. state government has no role to play in matter of appointment of any of officials of federation including managing director. federation is totally independent in all respects and in no way subservient to state government in conduct of its business. federation in no way can be termed as agency of state government and does not come within meaning of article 12 of constitution. writ petitions against federation is not maintainable. - 10. it is well settled that any appointment which has been obtained by practicing fraud or deceit, such an appointment is illegal since its inception and in such a situation article 311 of the constitution is not attracted at all.orderajit kumar sinha, j.1. the present writ petition has been preferred for grant of an appropriate writ in the nature of certiorari or an order or direction for quashing the notification issued under memo no. 627 dated 6th september, 2000 whereby and whereunder the petitioner has been discharged from bihar agriculture service category-i from the post of block development officer, chainpur, gumla.the facts in brief are set out as under:2. the petitioner was appointed as graduate instructor on 12.7.1977 and was later promoted to the post of block development officer on 29.6.1987. it appears that the petitioner was suspended on 15.12.1994 under rule 49 of the civil services classification and appeal rules on the allegation that he had obtained the employment by giving a false caste certificate. pursuant to a complaint the deputy commissioner, east-singhbhum vide its letter dated 25.2.1991 directed the petitioner to produce the caste certificate and the residential certificate alongwith an affidavit. the suspension order followed based on the charge and the report since the petitioner had procured the services on the reserved quota of scheduled tribe on producing false certificate. it appears that a series of writ petitions were filed by the petitioner. firstly c.w.j.c. no. 691 of 1992 (r) challenging letter dated 4.11.1991 followed by c.w.j.c. no. 45/99 (r) challenging the suspension order thereafter l.p.a. no. 36 of 1995 (r) was filed.3. be that as it may the charges were framed vide memo no. 52/c dated 9th march, 1995 and a departmental proceeding under rule 55 was initiated and the petitioner was asked to give his show-cause / explanation to the said charges and the deputy development commissioner was appointed as the enquiry officer. even thereafter the petitioner filed two writ petitions and a l.p.a. seeking subsistence allowance. however, on conclusion of the enquiry and in compliance to the direction issued by the high court the enquiry report dated 18.3.1999 was submitted holding the petitioner guilty. against that the petitioner filed an application for ignoring the enquiry report and to hold a fresh enquiry. the petitioner was also given a second show-cause notice and was also provided with enquiry report and after considering his reply and taking concurrence of the competent authority the services of the petitioner was terminated vide its impugned order dated 6th september, 2000.4. the main contention raised by shri v.p. singh, learned sr. council appearing on behalf of the petitioner is that there was no proper enquiry and there was no opportunity to explain and even the second show-cause was not in the proper form. it has further been contended that the petitioner worked for 17 years during which he was also promoted and the same should have been taken into consideration before passing the order of dismissal.5. the learned counsel for the respondent state submits that proper enquiry was held, sufficient opportunity was given, second show-cause was also given and after considering the entire facts and circumstance of the case the charges were found to be true against the petitioner as will be evidence from clause 5 of the said report.6. i have considered the rival submission and the pleadings. the main contention about non issuance of second show-cause is on the face of it erroneous and factually incorrect since the petitioner himself has filed the reply to the second show-cause as annexure-15 and the subject reads as under:second show cause pursuant to letter no. 3(c) c.9.07/95-1107/a patna dated 27th december, 1999. it is also clear from the records that an enquiry was held before framing of the charge by the deputy commissioner and based on its report the charges were framed and the petitioner duty filed his explanation against the charges. thus the entire requirements as settled in law in a disciplinary proceeding have been followed and there is no infirmity whatsoever.7. the next contention that the petitioner produced the caste certificate which upon enquiry by the committee was found to be false and falsely procured for obtaining govt. job and this fact is also evident from the letter dated 26.9.98 issued by dy. secretary, govt. of bihar to the agriculture production commissioner, bihar, patna.in the instant case the order of the government has been passed after due compliance of the principles of natural justice and after due consideration of all the relevant aspects of the matter and after considering the report of the dy. commissioner, ranchi who vide its letter no. 1011(ii) dated 1.4.1992 had specifically informed the agricultural department about the fact that the petitioner did not come within the purview of schedule tribe.8. the learned counsel appearing on behalf of the petitioner has further referred to and relied upon : (2009)illj235sc (state of utranchal and os. v. kharak singh) in support of his contention. however, the ratio of that case does not apply to the facts of present case and the reliance is misplaced. the case cited relates to the issue that the enquiry should not be an empty formality. the enquiry officer cannot strongly recommend for imposition of a particular punishment because the same lies within the jurisdiction of disciplinary authority.9. a bench of three judges of hon'ble supreme court in a judgment reported in : air2004sc1469 (r. vishwanatha pillai v. state of kerala and ors.) along with connected matters in an identical case at para-15 held that the appointment procured on the basis of false caste certificate was void since its inception and thus, it cannot be held that the said void appointment would enable the appellant to claim that he was holding civil posts within the meaning of article 311 of the constitution of india as the appellant had obtained the appointment itself on the baste of false caste certificate.10. it is well settled that any appointment which has been obtained by practicing fraud or deceit, such an appointment is illegal since its inception and in such a situation article 311 of the constitution is not attracted at all.11. considering the aforesaid facts and circumstance of the case, i find no merit in the writ petition and the same is accordingly dismissed.

Judgment:
ORDER

Ajit Kumar Sinha, J.

1. The present writ petition has been preferred for grant of an appropriate writ in the nature of certiorari or an order or direction for quashing the Notification issued under Memo No. 627 dated 6th September, 2000 whereby and whereunder the petitioner has been discharged from Bihar Agriculture Service Category-I from the post of Block Development Officer, Chainpur, Gumla.

The facts in brief are set out as under:

2. The petitioner was appointed as Graduate Instructor on 12.7.1977 and was later promoted to the post of Block Development Officer on 29.6.1987. It appears that the petitioner was suspended on 15.12.1994 under Rule 49 of the Civil Services Classification and Appeal Rules on the allegation that he had obtained the employment by giving a false caste certificate. Pursuant to a complaint the Deputy Commissioner, East-Singhbhum vide its letter dated 25.2.1991 directed the petitioner to produce the caste certificate and the residential certificate alongwith an affidavit. The suspension order followed based on the charge and the report since the petitioner had procured the services on the reserved quota of Scheduled Tribe on producing false certificate. It appears that a series of writ petitions were filed by the petitioner. Firstly C.W.J.C. No. 691 of 1992 (R) challenging letter dated 4.11.1991 followed by C.W.J.C. No. 45/99 (R) challenging the suspension order thereafter L.P.A. No. 36 of 1995 (R) was filed.

3. Be that as It may the charges were framed vide memo No. 52/C dated 9th March, 1995 and a departmental proceeding under Rule 55 was initiated and the petitioner was asked to give his show-cause / explanation to the said charges and the Deputy Development Commissioner was appointed as the Enquiry Officer. Even thereafter the petitioner filed two writ petitions and a L.P.A. seeking subsistence allowance. However, on conclusion of the enquiry and in compliance to the direction issued by the High Court the Enquiry report dated 18.3.1999 was submitted holding the petitioner guilty. Against that the petitioner filed an application for ignoring the enquiry report and to hold a fresh enquiry. The petitioner was also given a second show-cause notice and was also provided with enquiry report and after considering his reply and taking concurrence of the competent authority the services of the petitioner was terminated vide its impugned order dated 6th September, 2000.

4. The main contention raised by Shri V.P. Singh, learned Sr. Council appearing on behalf of the petitioner is that there was no proper enquiry and there was no opportunity to explain and even the second show-cause was not in the proper form. It has further been contended that the petitioner worked for 17 years during which he was also promoted and the same should have been taken into consideration before passing the order of dismissal.

5. The learned Counsel for the respondent state submits that proper enquiry was held, sufficient opportunity was given, second show-cause was also given and after considering the entire facts and circumstance of the case the charges were found to be true against the petitioner as will be evidence from Clause 5 of the said report.

6. I have considered the rival submission and the pleadings. The main contention about non issuance of second show-cause is on the face of it erroneous and factually incorrect since the petitioner himself has filed the reply to the second show-cause as annexure-15 and the subject reads as under:

Second show cause pursuant to letter No. 3(C) C.9.07/95-1107/A Patna dated 27th December, 1999.

It is also clear from the records that an enquiry was held before framing of the charge by the Deputy Commissioner and based on its report the charges were framed and the petitioner duty filed his explanation against the charges. Thus the entire requirements as settled in law in a disciplinary proceeding have been followed and there is no infirmity whatsoever.

7. The next contention that the petitioner produced the Caste certificate which upon enquiry by the committee was found to be false and falsely procured for obtaining Govt. job and this fact is also evident from the letter dated 26.9.98 issued by Dy. Secretary, Govt. of Bihar to the Agriculture Production Commissioner, Bihar, Patna.

In the instant case the order of the Government has been passed after due compliance of the principles of natural justice and after due consideration of all the relevant aspects of the matter and after considering the report of the Dy. Commissioner, Ranchi who vide its letter No. 1011(ii) dated 1.4.1992 had specifically informed the Agricultural Department about the fact that the petitioner did not come within the purview of Schedule Tribe.

8. The learned Counsel appearing on behalf of the petitioner has further referred to and relied upon : (2009)ILLJ235SC (State of Utranchal and Os. v. Kharak Singh) in support of his contention. However, the ratio of that case does not apply to the facts of present case and the reliance is misplaced. The case cited relates to the issue that the enquiry should not be an empty formality. The enquiry officer cannot strongly recommend for imposition of a particular punishment because the same lies within the jurisdiction of disciplinary authority.

9. A bench of three judges of Hon'ble Supreme Court in a Judgment reported in : AIR2004SC1469 (R. Vishwanatha Pillai v. State of Kerala and Ors.) along with connected matters in an identical case at para-15 held that the appointment procured on the basis of false caste certificate was void since its inception and thus, it cannot be held that the said void appointment would enable the appellant to claim that he was holding Civil posts within the meaning of Article 311 of the Constitution of India as the appellant had obtained the appointment itself on the baste of false caste certificate.

10. It is well settled that any appointment which has been obtained by practicing fraud or deceit, such an appointment is illegal since its inception and in such a situation Article 311 of the Constitution is not attracted at all.

11. Considering the aforesaid facts and circumstance of the case, I find no merit in the writ petition and the same is accordingly dismissed.