IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.995 of 2009 1. CHIEF GENERAL MANAGER, TELECOM, Bihar Circle, Meghdoot Bhawan, G.P.O., Patna 2. General Manager, Telecom, District Gaya, Telephone Bhawan, G.B.Road, Gaya 3. General Manager (Telecom) Project, CTO Building, Patna 4. S.D.E. (Administration), B.S.N.L., Office of the G.M.T., Gaya … Respondents-Appellants Versus 1. RAVINDRA PRASAD, son of late Chandradeep Bhagat, resident of village Palibigha Dih, P.S. Belaganj, District Gaya 2. The Union of India, through the Secretary, Department of Telecommunication, Sanchar Bhawan, New Delhi … Respondents-Respondents ----------- 3. 8.2.2010 I.A.No. 4831/2009 Having heard learned counsel for the appellants as also taking into account the facts mentioned in this application, especially preferring an application for review the delay of 626 days in filing of this appeal is condoned. Having condoned the delay this Court has also heard Mr. Sandeep Kumar, learned counsel for the appellants on merits. This appeal is directed against the order dated 7.9.2007 in C.W.J.C.No. 15802/2004 whereby and whereunder the writ application filed by the respondent- writ petitioner, questioning that the order of termination 2 of service on the post of Peon dated 30.12.2003 with effect from 30.1.2004 has been allowed. Counsel for the respondents- appellants Bharat Sanchar Nigam Ltd. (hereinafter referred to as the „B.S.N.L.‟) has assailed the impugned order only on the ground that the order of the learned Single Judge suffers from an apparent error, inasmuch as she while allowing the writ application had relied on a document, Annexure 6 thereof, which was a forged document. It has thus been submitted by him that any order obtained by the respondent- writ petitioner on the basis of forged document cannot be sustained and this Court should set aside the impugned order. In the opinion of this Court though the submission made by the learned counsel for the appellants on a first blush seems to be attractive but when we have gone into the records of the connected writ application and the review application it would be found that the respondents themselves have mixed up the concept of forged with that of unauthorized. It has to be noted that respondent no.1- writ petitioner had moved this Court with a specific case that he was engaged by 3 the Telephone Department as a casual/ daily rated employee in the year 2001 and was continuing in service on a date on which the BSNL had invited application from amongst casual labourers/ daily rated Mazdoors who had completed 240 days in any one year as on 21.3.2002 for grant of temporary status of Mazdoor. It was his further case that he was given such temporary status but all of a sudden on 30.12.2003 he was given notice under sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Services) Rules, 1965 for termination of his service on expiry of a period of one month of the date of service of the notice. It appears that thereafter the respondent- writ petitioner had moved the Central Administrative Tribunal, Patna Bench, Patna by filing O.A.Case No. 85/2004 wherein an interim order was also passed on 4.2.2004 for maintaining status quo on the strength of which the respondent- writ petitioner had continued in service at least till the disposal of O.A.No. 85/2004 by an order dated 6.8.2004 by recording that the BSNL was a body corporate and was yet to be notified under section 14(2) of the Administrative Tribunals Act. Under such circumstances, 4 when the respondent- writ petitioner had withdrawn the O.A. and had moved this Court on 15.12.2004 by filing corrected writ petition, C.W.J.C.No. 15802/2004, a specific plea was taken by him in paragraphs 5, 6 and 7 that he had continued in service for more than 240 days in a year and as such, was entitled to be regularized by giving him temporary status. It was in fact in support of the aforementioned plea that the respondent- writ petitioner had not only produced the certificate issued by the competent authority dated 12.5.2003 showing him to have worked from 10.12.2001 to 1.5.2003 without even a break for a day and only to support this aspect he had also relied on a document dated 12.5.2003 in form of a proceeding of the meeting of the Committee consisting of Deputy General Manager and two District Engineers dated 12.5.2003 wherein it was recorded that the Committee which was constituted to go into the matter of regularization of left out cases of casual labour to TSM cadre who were directly employed by the Department/ BSNL for minimum 240 days continuously in a year having gone into the details and making necessary verification from the records had found that five persons, 5 namely, Md. Salim, Md. Asgar, Mr. Bablu Kumar, Mr. Ravindra Prasad, respondent- writ petitioner and Mrs. Rekha Devi were fit for being considered for their being absorbed and regularized in TSM cadre of BSNL on the basis of man-days and the payment verifies from the records. A photo copy of the minutes of the meeting in fact was made Annexure 6 to the supplementary affidavit filed by the respondent- writ petitioner, a copy whereof had also been served on the counsel for the BSNL on 9.3.2007 and in paragraph no.2 of the supplementary affidavit a vivid detail of such meeting as mentioned in the connected document was also set out. It is to be noted here that a counter affidavit in fact was filed by the appellants wherein the fact with regard to engagement of the writ petitioner or his continuing in service on daily wages was not denied, rather it was stated that the engagement of the writ petitioner was made according to requirement and the petitioner had not completed 240 days in one year i.e. upto 31.3.2002 and therefore, the circular of the Department dated 22.9.2002 was not applicable in his case. The learned Single Judge in fact in this context had 6 taken note of materials on record as also had placed reliance on the proceeding of the meeting of the Committee headed by the Deputy General Manager dated 12.5.2003 (Annexure 6) wherein the said Committee had recommended for regularization of the writ petitioner along with four others including Md. Salim, Md. Asgar, Bablu Kumar and Rekha Devi. In this regard the learned Single Judge had recorded as follows: “ This application is being allowed in view of the recommendations of the Committee as contained in Annexure 6 dated 12.5.2003. Counsel appearing for the B.S.N.L. submits that in view of the recommendation of the Committee petitioner‟s case is fit for regularization, I find that in respect of recommendation of the Committee, an order terminating service of the petitioner has been passed, ignoring the recommendation. Such order is completely against the respondent‟s own decision. In this view of the matter letter dated 30.12.2003 issued by the respondent no.3 is held to be illegal and without jurisdiction. The order dated 30.12.2003 contained in Annexure 3 issued by the S.D.E. (Administration), B.S.N.L. (office of G.M.T.), Gaya is quashed. Respondent no.3 7 is directed to regularize the service of the petitioner in the light of the recommendation of the Committee as contained in Annexure 6 and to give the petitioner temporary status in view of the Government Circular No. 292/Reott/11/R.M./ 49 dated 20.9.2002.” From the aforementioned order as also the fact that the appellant had filed a counter affidavit sworn on 5.9.2007 well before disposal of the writ application on 7.9.2007 and yet had not chosen to controvert the proceedings of the meeting dated 12.5.2003 (Annexure 6), no error can be said to have been committed by the learned Single Judge in relying on an official document as with regard to upholding the claim of the writ petitioner. We now would take up the plea as to whether such document dated 12.5.2003 was forged. In this context it has to be noted that on 23.4.2008 i.e. after six months of the order of the learned Single Judge a review application was filed wherein in paragraphs 18 and 19 it has been stated as follows: “18. It is relevant to state here that the letter as appended in Annexure 6 was forged as no such decision was ever taken for regularization of left out cases of casual 8 labour to T.S.M. Cadre. 19. It is relevant to pin point here that the Committee as constituted is thoroughly ill motivated and misconceived in totality. The D.G.M. (F & A), D.E. (E-10.8) & D.E. (Tran) were not authority to take such decision. In fact there is no statutory conferment to the officials, whose post and designation mentioned on the Committee for regularization. The alleged proceeding is thorough forged fabricated and no such document available under the respondents.” It, thus, becomes clear that the appellants had never taken a plea that no such meeting had ever been held by the three officials or that the photo copy of the typed proceedings of the minutes of the meeting containing the signature of Deo Krishna, Deputy General Manager (F & A), S. Khabir, Divisional Engineer and Awadh Kishore Verma, Divisional Engineer, was forged. Consequently, the learned Single Judge had proceeded to examine the plea with regard to the alleged forgery in Annexure 6 and it was held while dismissing Civil Review No. 106/2008 by an order dated 13.5.2009 that: 9 “ On perusal of the records of C.W.J.C.No. 15802 of 2004 I find that Annexure 6 was brought on record by the writ petitioner by filing supplementary affidavit. The supplementary affidavit was sworn on 1.5.2006. Counsel for the Union of India submits that though it was sworn on 1.5.2006, but it was filed some time in the month of March, 2007. What I find that the counter affidavit on behalf of BSNL was filed in the month of September, 2007. The affidavit was sworn on 5.9.2007. In the counter affidavit there is no whisper that Annexure 6 is a forged document. It has not been stated in counter affidavit that the recommendation of the Committee Annexure 6, brought by the writ petitioner on record of the case is forged and there was no such recommendation of any committee as no meeting of the committee has ever been held. The stand which has been taken by the Union of India, in the review application is completely in contradiction of statement in the counter affidavit. No case for review of the impugned order is made.” Before us when the learned counsel for the appellants had taken the same stand that Annexure 6 was a forged document, we had tried to look into the 10 pleadings in the appeal and therein also not a word has been said that the three officials whose signature was on Annexure 6 in fact had never signed the same or that none of the list of five persons recommended wherever regularized in the BSNL. We had also tried to know from the learned counsel for the BSNL as to whether any conscious effort was made to verify with regard to the existence of the aforementioned three officials at Gaya at the relevant point of time on 12.5.2003 or the genuineness of their signature but the learned counsel had only made a futile endeavour by stating that from the records such document could not be traced out. The fact that high ranking three officials were posted and their signature on the documents and also the contents of the document was never disputed, this Court will have to infer that the expression “forged” and “unauthorized” have been used in the pleadings including the memo of appeal by the appellants in a very loose manner. An action may be unauthorized but yet if the document for such action was there that cannot be called to be forged. Here the review before the learned Single Judge as also the appeal has 11 been placed on the ground of Annexure 6 being a forged document but when no such affidavit has been filed in support of such stand by any of the aforementioned three officials, namely, Deputy General Manager and the two Divisional Engineers of the BSNL posted at Gaya on 12.5.2003, this Court would have no hesitation in recording a finding that the plea of the document (Annexure 6) being forged is not correct. It has to be also taken into account that even in the main counter affidavit the appellants had not denied the working of the petitioner and Annexure 6 only confirms this fact of continuous working of the writ petitioner and as such, entitled for consideration for his regularization. In fact by Annexure 6 only a recommendation was made and, therefore, it would be difficult for this Court to hold that the learned Single Judge had committed any error in referring to or relying on Annexure 6. Thus, having given our anxious consideration to the materials brought on record as also the pleadings, we find no substance in the sole argument as against the impugned order based on Annexure 6 to be 12 unsustainable, inasmuch as the appellant has miserably failed to substantiate its claim that Annexure 6 was a forged document. Consequently, we find no error in the impugned order and accordingly, the appeal being devoid of any merit, is hereby dismissed. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.) Surendra/