IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12331 of 2004 1. HAJRA KHATOON wife of late S M Asad Hami. 2. S Shamim Ashraf son of late S M Asad Hami. 3. S Masroor Ashraf son of late S M Asad Hami. 4. S Tahsin Ashraf son of late S M Asad Hami. 5. Robina Khatoon daughter of late S M Asad Hami. 6. Md. Kalim Ashraf son of late S M Asad Hami Residing at Ashraf Manzil near Chnd Kothi, Mohalla Imamganj, P.O. & P.S. Muzaffarpur, District – Muzaffarpur. Versus 1. THE STATE OF BIHAR through Secretary, Department of Irrigation, Bihar, Patna. 2. The Commissioner cum Secretary, Department of Irrigation, Bihar, Sichai Bhawan, Patna – 13. 3. The Joint Secretary, Department of Irrigation, Bihar, Patna. 4. The Accountant General ( A & E) II, Bihar, Birchand Patel Marg, Patna. 5. The Finance Officer, Finance Department, Bihar, Patna. 6. The Treasury Officer, Chapra (Saran). 7. The Executive Engineer, Saran Division (Irrigation) Chapra (Saran). ----------- For the petitioners : M/S. K N Choubey, Md. Naushad and Zakia Naushad. For the State : G A 5. ----- 12. 18 .02.2011 The writ application was originally filed by one S M Asad Hami, an erstwhile employee of the Irrigation Department, Government of Bihar. He was stated to be a Junior Engineer. In the present writ application he wanted quashing of Annexure-3 dated 6.11.1993 issued under the signature of the Joint Secretary, Irrigation now Water Resource Department by virtue of which he was dismissed from service. He expressed surprise about such a dismissal order because according to him, he worked under the department and ultimately superannuated on 31.1.2001 from the office of the Executive Engineer (Irrigation), Saran at Chapra. 2 During the pendency of the writ application, the original petitioner/government servant died and his legal heirs were allowed to be substituted who are pursuing the matter on his behalf. Since the litigation has a long history behind, those facts are required to be looked into which will help in appreciation of the issues emerging therefrom in the right perspective. The erstwhile employee joined the service of the Department of Irrigation on the post of Overseer (Junior Engineer) on 16.1.1965. According to him, he superannuated on 31.1.2001. He approached the Executive Engineer of Saran Division for settlement of his retiral dues. When the claim of the petitioner was examined, it emerged that the erstwhile petitioner had been dismissed from service as far back as on 6.11.1993 on some serious charges which stood established in a departmental proceeding. In addition to that a criminal case was also instituted. How did the employee manage to get back in service without there being any interference with the order of dismissal became an issue of enquiry by the respondent State. The matter is rather serious in the opinion of the Court and it did require a deeper look into the whole issue. The Court in addition to the counter affidavit having been filed on behalf of the respondent State also directed production of entire original records relating to the erstwhile petitioner, which was tendered by the Government Advocate for perusal. The history which emerges from the perusal of the records is that this is not the first visit of the employee before the High Court. 3 Earlier he had filed CWJC No.7047 of 1988 challenging his suspension but from the counter affidavit which came to be filed on behalf the State in the year 1998, it emerged that the erstwhile petitioner had already been dismissed from the service after a departmental enquiry vide Government order No. 573 dated 6.11.1993. The erstwhile employee was posted as a Junior Engineer in Tirhut Canal Division, Chakia in 1982. He along with an Assistant Engineer namely, Kuldip Narayan Sinha were assigned the work of carrying 5995 metric tons of cement from Banjari Cement Factory. The cement was delivered to him but only 5526 metric tons of cement reached its destination. In other words, 427 metric tons of cement was misappropriated. It also emerged on verification of the store that dust and rubbish materials were mixed up in 204 bags of cement as an effort to cover up the misappropriation. A preliminary enquiry was held and prima facie materials against the erstwhile petitioner and others emerged which led to his suspension on 27.1.1982. Thereafter the departmental enquiry was conducted which culminated in punishment of dismissal. In addition to the above, two FIRs were also lodged vide Motihari Town P.S. Case No.175 of 1982 and Kesariya P S Case No.125 of 1982. Department had accorded sanction for prosecution under section 197 of the Code of Criminal Procedure but the petitioner was absconding from the criminal court so a permanent warrant of arrest had been issued. It emerges from the record that the order of dismissal issued 4 by the respondent State was communicated to one and all including the erstwhile petitioner. Evidence whereof has been produced by the counsel for the State to dislodge the stand taken in the writ application that the erstwhile employee had no knowledge or information about the order of dismissal. According to State counsel it was only a ploy to cover up his misconduct of yet another kind i.e. crawling back into service in connivance with certain persons at the local level. From the pleadings of the writ application it seems that the petitioner had filed yet another writ being CWJC No. 4260 of 2002 claiming payment of retiral dues. Stand is taken that only when a counter affidavit was filed in the said writ application that the petitioner came to know that he had been dismissed from service as far back as in 1993. He feigned complete ignorance about such an order and stated that he had continued in service and superannuated in 2001 and had even earned time-bound promotions including selection grades during this period. It is also stated in the writ application that though evidence of dispatch of the order of dismissal which was by a registered post has been annexed in the said counter affidavit but it is submitted that there is no proof of its service. In other words, all the story which is now being made out by the State is an effort to deny the employee his benefit of pension etc. CWJC No. 4260 of 2002 was disposed of on 26.7.2002 in light of the fact that yet another enquiry had been ordered by the State as to the circumstances which led to the petitioner getting back into service and superannuating on reaching the age of 58 in the year 2001. 5 From subsequent affidavits which came to be filed on behalf of the State it appears that enquiry was conducted against the employees who were posted in the office at the relevant time. Some were exonerated but some have been punished for conniving with the original petitioner. The question which arises now is whether the employee or his legal heirs can be allowed to challenge the order of dismissal passed way back in the year 1993 on the spacious ground that the erstwhile petitioner had no knowledge of the order of dismissal passed against him, as he had worked under the respondents till the age of his superannuation in the year 2001. Whether the pleadings or the averments made in the writ application with regard to absence of knowledge of the order of dismissal can be accepted on the face value and whether the so-called continued service of the erstwhile petitioner till his superannuation should beget him the benefit of quashing the order of dismissal as well as giving a direction for payment of retiral dues etc. are the questions which are required to be looked into or answered. It is well settled principle that fraud vitiates all actions. It is a cock and bull story built by the employee as it is hard to believe that the government employee charged with serious allegations and proceeded against not only departmentally but even in criminal court, ultimately did not know as to what was the outcome of the two proceedings. Feigning ignorance or wishing away a fact which is otherwise uncomfortable may not help the employee in overcoming the 6 fact that way back in the year 1993 State Government had issued a notification dismissing the original petitioner from service and the said order was widely circulated and dispatched to the erstwhile petitioner as well by registered post. There is a basic presumption in law that if the registered post had not returned then the service had been effected . The stand of the employee that it is for the State to prove that service was effected is a misplaced kind of stand to take as that would be shifting the burden of proof on the State when there is no material to dislodge the presumption in law. Obviously, the original petitioner has had a chequered history for which he came to be suitably punished and that order of punishment was never challenged or interfered with at any point of time by any authority. If the employee in question managed to sneak into department in the field-posting and manipulated the system thereafter to hang on in the office till his so-called superannuation in the year 2001, it does not mean that he had earned a right to claim the benefits of an employee who had superannuated after an unblemished career. In fact the conduct of the erstwhile petitioner by itself shows that he is a hardened deviant who was capable enough to manipulate the system to his advantage despite the order of dismissal or the criminal case having been instituted against him. In the opinion of this Court such a conduct in the background material and evidence can never beget any benefit from a court of law. Even equity cannot flow in case of such person where the conduct of a person is myriad in fraudulent deed and action. Even 7 otherwise, it is too late in the day to allow the employee or his legal heirs to challenge the dismissal order now in retrospect, as this would be rewarding the employee despite overwhelming material to show that he had cocked a snook at the system so blatantly. In the totality of the facts and circumstances there is no question of granting any relief to the erstwhile petitioner or his legal heirs. In fact the Court would have been rather firm in dealing with such kind of litigations but for the fact that the erstwhile petitioner is dead, the court does not want to punish the legal heirs for the conduct of somebody who is not there to defend himself. The writ application is dismissed. rkp ( Ajay Kumar Tripathi, J.)