CIVIL WRIT JURISDICTION CASE No.6664 OF 1997 --------- In the matter of an application under Article 226 of the Constitution of India. -------- RAM DEO PRASAD SON OF LATE SRI BISHUNDEO NATH PRASAD, RESIDENT OF MOHALLA SOUTH MANDIRI, P.S. BUDHA COLONY, DISTRICT PATNA-----------------------------------------------------------PETITIONER Versus 1.THE STATE OF BIHAR 2.THE COMMISSIONER TOURISM AT OLD SECRETARIAT, PATNA, P.S. SECRETARIAT, DISTRICT PATNA 3.MANAGING DIRECTOR, BIHAR TOURISM DEVELOPMENT CORPORATION, P.S. SECRETARIAT, PATNA---------------------RESPONDENTS --------- For the Petitioner : S.R.C.Pandey, Advocate For the Corporation: Mr.Jitendra Singh, Sr.Advocate Mr.Bishwajeet Singh, Advocate -------- P R E S E N T THE HON'BLE MR. JUSTICE RAMESH KUMAR DATTA -------- R.K.Datta,J. Heard learned counsels for the parties. 2. The petitioner seeks quashing of the enquiry report dated 26.8.1996 as also the order of dismissal from service dated 31.8.1996 (Annexure-2) passed by the Managing Director, Bihar State Tourism Development Corporation. 3. The petitioner was working as an Electrician in the respondent Corporation. On 11.1.1995 a flower pot containing ganja plant was found on the roof of the Tourism Bhawan Headquarters of the Corporation and an enquiry was directed to be conducted by two senior 2 Managers of the Corporation, who gave joint enquiry report on 10.2.1995. In the course of such enquiry the staff of Hotel Kautilya Vihar, a unit of the Corporation located in the said premises, informed that the same had been put on the roof by the petitioner. It is stated in the said enquiry report that the petitioner accepted his fault and begged to be excused stating that he would not repeat the same in future. 4. On the basis of the said joint report explanation was sought from the petitioner on 24.2.1995 which he replied on 13.3.1995, but having received an evasive answer another explanation was sought from the petitioner by letter dated 18.4.1995. In his reply the petitioner did not accept his guilt. Relying on the said joint report, by order dated 8.5.1995 the services of the petitioner were terminated. Aggrieved by the same the petitioner approached this Court by filing C.W.J.C.No.4391 of 1991, which was disposed of by order dated 16.11.1995 setting aside the order of termination of service on the ground that the same had been done without conducting any departmental enquiry but liberty was given to the respondents to hold a fresh enquiry. The petitioner was not directed to be reinstated but it was 3 observed that the joining of the petitioner in the service of the Corporation would abide by the result of the enquiry. 5. Thereafter three charges were framed against the petitioner and the same was issued to the petitioner by letter dated 29.11.1995. In the course of the enquiry proceedings another charge No.4 was added and the charge contained in Memo No. 897/96 dated 17.8.1996 containing the charge was issued to the petitioner, alleging that the petitioner’s appointment was itself illegal and void ab initio since he was appointed through backdoor as a daily wager electrician without following any procedure and rules and subsequently again without following the procedure and rules his service was regularized on the said post. 6. In the enquiry report detailed facts have been stated in support of the allegations that the petitioner instead of co-operating with the enquiry proceedings had adopted a policy of non-cooperation and of sabotaging the proceedings. It is stated in the enquiry report that when the witnesses of the respondent Corporation were examined on 2.3.1996 the petitioner deliberately did not appear although he was present in the premises of the Corporation. He was, however, by detailed letter dated 17.8.1996 given a last 4 opportunity to cross examine the witnesses on 21.8.1996 and produce all his witnesses. On 21.8.1996 the petitioner appeared and cross examined the two witnesses and signed on the proceedings book but did not produce any of his witness nor gave any written representation that he wanted to examine any witness. On the basis of the materials on the record the enquiry officer came to the conclusion that all the charges stood proved. It was found that the petitioner had placed the pot containing ganja plant on the roof of the Corporation. Having done that he had also accepted his guilt before the two member enquiry team but subsequently turned around and refuted the same and charges with respect to that were also found true. It was also found on the basis of the records that the details mentioned in the charge memo issued on 17.8.1996 with respect to the illegal and void appointment of the petitioner through the backdoor were correct. 7. The enquiry report was served upon the petitioner on 27.8.1996 and he filed his reply to the same on 28.8.1996. In his reply he made allegations that the witnesses had not been examined on 2.3.1996 and he was prevented from examining them on 21.8.1996. 5 8. The disciplinary authority by the impugned order dated 31.8.1996 found that at all stages the petitioner had been given ample opportunity to defend himself in the enquiry proceedings and he had deliberately at the earlier stage remained absent in such proceedings, the details of which are to be found in the letter dated 17.8.1996. It was further found from the records of the proceedings of 21.8.1996 that he had cross examined the witnesses and questions and answers were duly recorded and he had also signed on the records of the proceedings and thus he is raising a false plea that he has not been given the opportunity to cross examine the witnesses. The disciplinary authority also on the basis of the materials on the record accepted the conclusion that the petitioner was responsible for putting the ganja plant on the roof of the Corporation’s headquarters and after first accepting the guilt before the senior officials, who made enquiry, had turned around and was continuously changing his stand. It was further found that the petitioner’s appointment was ab initio void and illegal as he had been appointed as a daily wager on 21.5.1996 as a backdoor entrant without giving equal opportunity to all others, without following the rules 6 of reservation and without having the necessary qualifications. It was also found that his regularization order No.131/91 dated 6.9.1991 was also contrary to the letter dated 30.3.1990 issued by the Bureau of Public Enterprises and the Circular No.3955 dated 10.4.1990 of the Personnel and Administrative Reforms Department as the same had been done without advertising in the newspapers or asking for names from the employment exchange or giving equal opportunity to others or following the rules of reservation. It was thus held that in such circumstances the appointment being ab initio void and illegal the petitioner was also not entitled to any notice or show cause in terms of the order of this Court reported in 1995(2) PLJR 309, although the opportunity had been given to the petitioner in the present matter. Accordingly, the petitioner’s services were terminated. Against the aforesaid order passed by the Disciplinary Authority- Managing Director it is admitted in the writ petition that an appeal was filed which has been rejected but the order passed by the appellate authority has neither been annexed nor challenged in the writ petition. 7 9. Learned counsel for the petitioner submits that the petitioner having earlier approached this Court against the order of his termination and the matter having been remanded by this Court for holding a proper departmental enquiry and passing order thereon it was not open to the respondents to have added fresh charge regarding the appointment being void and illegal. It is also submitted that the addition of the said charge shows the malice of the respondents and it was not open to them to have sat idle for ten years and reopened the said issue after inordinate delay when it was found that the charge of shifting of ganja plant would not be sufficient to dismiss the petitioner from service. 10. It is also urged by learned counsel that if the appointment of the petitioner itself was illegal then where was the need for the proceedings against the petitioner on other charges. 11. Learned counsel also submits that the petitioner was not given a proper opportunity to examine and cross examine the witnesses. It is also alleged that the proceedings were beyond jurisdiction and mala fide. 8 12. It is the further contention of learned counsel that the charge regarding the ganja plant has not been proved conclusively. It is submitted that the petitioner was a mere electrician and not a gardener and nothing has been brought on the record to show as to how the ganja plant had come into existence and it was essentially an act of nature. It is urged that the petitioner could not have planted the ganja plant in a public place and through one ganja plant nothing much could have happened. 13. Learned counsel for the respondents, on the other hand, submits that the petitioner had been provided proper opportunity in the departmental proceedings which is evident from the enquiry report and the other materials placed on the record by the petitioner in the writ petition itself and that the petitioner at all stages had sought to delay the proceedings and create hindrance in its conclusion. It is urged that from the records also it is clear that the petitioner has cross examined the witnesses and has also signed on the records of the proceedings which clearly goes to show that the petitioner had been given ample opportunity in the course of the enquiry. 9 14. It is also submitted by learned counsel that the respondent Corporation having become aware during disciplinary proceeding about the illegal appointment of the petitioner it was open to the respondents to have added a fresh charge in the same proceedings and the same is not at all barred in the conduct of the departmental proceedings under the rules and procedure and practice so as to avoid multiplicity of proceedings. It is contended by learned counsel that all the requirements including issuance of the second show cause have been complied in the present matter and the petitioner has even replied to the same and thus he cannot claim any prejudice having been caused to him in the conduct of the enquiry proceedings and without showing prejudice there can be no violation of the principles of natural justice. 15. Learned counsel has also pointed out that the putting of the ganja plant on the roof of the Corporation’s premises itself is a very serious matter, that too, in the case of the respondent Tourism Development Corporation which is involved in providing hospitality service to the tourists, including foreign tourists, and such action would have a serious impact on the image of the Corporation and unless 10 it is put down with a firm hand it would lead to similar action by other persons. 16. Learned counsel also submits that the petitioner’s appointment having been found to be illegal and void ab initio the termination of his service cannot be held to be bad. It is submitted that the authorities have taken into account the decision of the Division Bench of this Court in which it was even said that in such cases of illegal appointment without following the rules and procedures, the termination of service could be even without the employee being noticed. It is also urged that in the case of Secretary, State of Karnataka and others vs. Uma Devi(3) and others : (2006)4 SCC 1 it has been held by the Apex Court that such backdoor entries without following the rules and procedures cannot be allowed to continue and such persons have no right of even regularization, the same being contrary to the principles of equity laid down in the Constitution. 17. I have considered the rival submissions of learned counsels for the parties. So far as the submission of learned counsel for the petitioner that the petitioner was not given proper opportunity to defend himself in the departmental 11 proceedings is concerned, this Court on a consideration of the materials on the record does not find the same to be correct. It appears that ample opportunity was given to the petitioner and it was the petitioner who was not co- operating with the respondent authorities and on their repeated efforts ultimately he did appear and cross examine the witnesses, in proof of which he had also signed on the records of the proceedings and thus the plea has to be rejected. 18. So far as the proof of various charges is concerned, this Court does not sit in appeal over the findings recorded by the disciplinary authority. It is for the disciplinary authority to consider the materials on the record and come to its own conclusion in the matter. If those conclusions are based upon the materials on the record this Court will not re-appreciate the evidence to come to a different conclusion. In the present matter I find that the disciplinary authority has taken into account all the materials on the record and come to the conclusion regarding the charge of the petitioner having placed the flower pot containing ganja plant on the roof of the Corporation. 12 19. This Court also finds that the petitioner has not been able to bring on record any materials to show that his appointment was made in a proper and legal manner. The only plea taken is that the charge of illegal appointment has been framed belatedly after more than ten years. The said plea is also wholly incorrect although the petitioner was appointed as a daily wager electrician in 1986 that is almost ten years earlier, his so-called regularization was done only in the year 1991. Thus the delay could not be said to be of ten years but at best five years. Moreover, nothing has been brought on the record by the petitioner to show and disprove the allegations made with respect to the appointment and his appointment clearly appears to be one of backdoor entry without following any rules or procedures at the whim of the authorities of the Corporation. The Apex Court in Uma Devi’s case (supra) has held that such appointments clearly appear to be contrary to the mandate of the equality clause of the Constitution. 20. Thus, on a consideration of the entire facts and circumstances, this Court does not find any infirmity in the impugned order. I am also of the view that it was not open to the petitioner to have challenged the order of the disciplinary authority without first challenging the order passed by the 13 appellate authority as the order of the disciplinary authority would stand merged in that of the appellate authority; although the said fact is recorded in the writ petition itself. 21. Thus, in the light of the above discussions, the writ application is dismissed. (Ramesh Kumar Datta,J.) PATNA HIGH COURT Dated the 18th January, 2011 Spal/ N.A.F.R.