IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12151 of 2007 Pratap Narayin Singh, Son of Sri Krishna Nand Singh, Resident of village – Churhait, P.S. Sono, District Jamui …… Petitioner Versus 1. The State Of Bihar. 2. The Director, Secondary Education, Bihar, Patna. 3. The Regional Deputy Director of Education, Munger Division, Munger. 4. The District Education Officer, Jamui. 5. The District Education Officer, Munger. ----------- For the Petitioner : M/s Tej Bahadur Singh, Sr. Advocate & Brisketu Sharan Pandey & Brajesh Kr. Advocates For the State : Mr. Sanjeev Kumar Singh, A.C. to G.P. 15 ---- 2 10.03.2011 Heard learned counsel for the petitioner and the State. Petitioner seeks quashing of Annexure 2 as well as Annexure 1, i.e., the order of dismissal dated 20th of September, 2004, whereby the petitioner has been dismissed from the service and the order dated 3rd of August 2007 passed by the appellate authority rejecting the appeal preferred against the order of dismissal. Petitioner claims to have been appointed on the post of Clerk in T.D. Banwsi High School , Bichkorwa by the letter dated 11.8.1982 issued under 2 the signature of the then District Education Officer, Munger and, accordingly, he had submitted his joining. The case of the petitioner is that after joining, his services were regularized and he was also given time bound promotion. However, after 22 years of his service he has been dismissed without initiating any disciplinary proceeding in accordance with the provisions of Bihar Service Code and Civil Services (Classification, Control and Appeal) Rules, 1930 and Bihar and Orissa Subordinate Services (Discipline & Appeal) Rules, 1935. The petitioner has earlier moved this Court against the Annexure 2 by filing C.W.J.C. No. 14118 of 2004, however, the same was dismissed as withdrawn granting liberty to the petitioner to avail the statutory appeal. Thereafter, upon such appeal having been filed, order contained in Annexure 1 had been passed rejecting the same. Learned counsel for the petitioner submits that from perusal of Annexure 2, it would appear that it has not been stated anywhere that the person, who has issued the letter no. 17459-60 dated 11.8.1982, was 3 examined during enquiry and upon such he has said that he has not issued such letter so that the letter could have been declared to be forged and fabricated one. However, on the basis of certain entries in the despatch register, it has been held that the letter appears to have been obtained by forgery. The petitioner claims that no opportunity of hearing was given to him and no proper disciplinary proceeding has been initiated against him. Thus, the order is in the teeth of the statutory rules and Article 311 of the Constitution and also suffers from the vice of having been passed without following the principle of audi alteram partem, thus, cannot be sustained in law. It is submitted that the appellate authority has also not considered such aspect of the matter and has dismissed the appeal. Learned counsel has placed reliance upon a decision rendered by Apex Court in Subodh Kumar Prasad v. State of Bihar (2001(3)PLJR SC 187 to demonstrate that for termination of an employee alleging on obtainment of service on the strength of fake appointment letter, though the same constitutes a cause for disciplinary action but in such cases what ought to 4 be really examined is the letter itself and not the despatch register. In that case, since no inquiry as to actual nature of order or letter of appointment was conducted, the termination was set aside along with the reinstatement with back wages. Learned counsel placed reliance upon another decision of Division Bench of this Court in Ram Krishna Dubey v. State of Bihar (2008(1) PLJR 841 and made specific reference of paragraph 8 thereupon to show that even in the case of the allegation of forged appointment letter, the same being a misconduct, that cannot be assumed without holding proper inquiry in accordance with the rules. Learned counsel has also placed reliance upon the aforesaid decision for the purpose that the emoluments already paid to the employee for the period he has worked cannot be directed to be recovered. Counter affidavit has been filed on behalf of the State. Learned counsel appearing for the State submits that from the despatch register, it appears that some forgery has been committed for obtaining appointment and on the basis of it, the Committee 5 concerned has come to the conclusion that the appointment letter is forged and fabricated one. However, learned counsel for the State was not in a position to show that either the petitioner was given an opportunity of hearing or his defence was considered by the authority concerned while passing of the order of dismissal. Secondly, it does not appear that the signatory of the aforesaid letter has either been examined or it has been held that somebody else has forged his signature. Learned counsel for the State has placed reliance upon a decision of the Apex Court rendered in R. Vishwanatha Pillai v. State of Kerala and others [(2004) 2 SCC 105] to impress upon this Court that since the petitioner has committed forgery he cannot be allowed to hold a civil post within the meaning of Article 311 of the Constitution, therefore, no disciplinary proceeding in terms of the Rules is necessary. However, in the aforesaid case, the concerned employee had produced a false caste certificate and on the basis of such certificate he has been able to obtain appellant as Assistant. A Scrutiny Committee was constituted in terms of the judgment 6 of the Apex court in Kumari Madhuri Patil v . Addl. Commr., Tribal Development [(1994) 6 SCC 241] by the Government of Kerala and an inquiry was held by such Scrutiny Committee. The employee was duly noticed and had appeared before the authority and participated in the inquiry after entering appearance through his counsel and submitted the documentary evidence before the Committee and thereafter the Scrutiny Committee has held that the employee has submitted a false certificate and on that basis order was passed. However, in the present case, the scenario is different as nothing of this sort appears to have been done by the authorities by issuing notice to the petitioner and considering his show cause on merit as would be apparent from Annexure 2. Only reference therein is regarding an affidavit having been filed by him in the year 1999 stating that he was legally appointed and if his appointment is found to be illegal then he could be removed and salary paid could be recovered. That appears to be undertaking given on affidavit. If a person has got employment after forging 7 appointment letter that would definitely amount to a misconduct. However, in the opinion of this Court a person, who is a regular employee for a period of about 22 years and has also been granted time bound promotion treating him to be a regular employee, can definitely be dismissed from the service on the ground of misconduct but only after holding proper disciplinary proceeding or inquiry and if such forgery is proved during the course of such disciplinary proceeding. However, in the present case, learned counsel for the State has not been able to show that either any show cause notice has been issued to the petitioner or he was given opportunity of hearing or even his defence has been considered by the authority concerned while passing the order of dismissal. He was also unable to show that any disciplinary proceeding in terms of the Rules applicable to the regular employees of the category of the petitioner has been initiated. The appellate authority also does not seem to have considered this aspect. In above view of the matter, in the opinion of this Court, the order as contained in Annexure 2 as 8 well as Annexure 1 cannot be sustained in law for the reason that those have been passed without following the principle of Natural Justice and without initiating any disciplinary proceeding against the petitioner in terms of statutory rules and, as a consequence, both the orders impugned are hereby set aside. However, it would be open for the authorities concerned to initiate a disciplinary proceeding against the petitioner in terms of the statutory provisions and in accordance with law and take a decision thereafter. Spd/- ( Dr. Ravi Ranjan, J.)