IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1969 of 2008 JITENDRA KUMAR @ JEETENDRA KUMAR. son of Late Raghubansh Kumar Sinha, Assistant Teacher Primary School-Agwanpur Circle Barh, Police Station Barh, District-Patna.... ...Petitioner Versus 1.THE STATE OF BIHAR through Secretary (Primary Education, Secondary, Primary and Adult Education Department, New Secretariat, Patna, 2.The District Superintendent of Education, Patna.. ...Respondents ............. For the Petitioner : Mr. Rajendra Pd. Singh, Sr. Advocate For the State : Mr. S.K. Ranjan, AC to SC-XV, Mr. Vasant Vikas, Advocate .......................... 9 30 .06.2011 I have heard the parties and perused the records of the case. From the perusal of writ application it appears that the petitioner seeks quashing of Annexure-1 which is the order contained in Memo No.7980 dated 18.9.2007 whereby petitioner has been dismissed from the service on the ground that his appointment letter has been found to be fake and forged. It has further been ordered that the proceeding should be initiated for recovery of amount which has been paid to the petitioner by way of salary and allowances. The petitioner also prays for a direction to the respondents to pay salary with effect from May 2003 along with interest. 2 Claim of the petitioner is that his father, who was Assistant Teacher in Primary School, Lohia Nagar, Police Station-Kankarbagh, District-Patna, died on 14.2.1986 while he was in service. The petitioner being only son had applied for appointment on compassionate ground at the post of Assistant Teacher within stipulated period along with affidavit sworn by his mother and the death certificate of his father. It is further claimed that the appointment letter was issued vide Memo No.960 Patna dated 22.3.1988 by Respondent No.2, the District Superintendent of Education, Patna, and, thereafter, the petitioner joined at the post of Assistant Teacher in Middle School, Chwra under Fathua-2 Circle of Patna district on 1.4.1988. He continued to work and lastly, petitioner had worked as Assistant Teacher in Primary School Agwanpur Circle Barh, Police Station, Barh, District Patna. It has also been urged that during the course of his appointment the petitioner has undergone service training as well. After about 16 years of his service, his salary was stopped with immediate effect by order dated 31.5.2004, a copy of which stands appended as Annexure-13. The petitioner was directed to remain present alongwith all the papers regarding his appointment. The aforesaid order was challenged by the 3 petitioner by filing CWJC No.9699 of 2004 which was disposed of with a direction to the District Superintendent of Education, Patna to take decision in regard to the validity of the petitioner's appointment, if already not taken, within three months and the payment of salary shall abide by the result of inquiry. Vide Annexure-15, i.e. the order dated 26.4.2005, petitioner's appointment letter was found to be forged one and his services were terminated with immediate effect. Order had also been passed for recovery of the amount paid to the petitioner as salary and allowances. The petitioner challenged the aforesaid order by filing yet another CWJC No.7493 of 2005 which was allowed by the order dated 15.01.2007, a copy of which has been appended as Annexure-16, on the ground that though re-enquiry was made on receiving the explanations from the petitioner, however, it does not appear that the explanation as well as the documents submitted by the petitioner were considered by the concerned authority. The order of termination was quashed. However, it has been observed that order shall not preclude the concerned authority from examining the validity of appointment of the petitioner after serving fresh appropriate show cause and the reply from the petitioner, if any, submitted by him and also upon hearing 4 the petitioner in person so that he could explain his case . It was also ordered that the payment of arrear of salary etc. shall abide by the order to be passed by the authority. Thereafter, the impugned order as contained in Annexure-1 has been passed. It has been submitted on behalf of the petitioner that again the order has been passed without adhering to the principle of audi alteram partem as even though the show cause notice could not be served upon the petitioner, final order has been passed without hearing him. From the order itself it appears that the petitioner had sent a letter as contained in Annexure-18 stating that the show cause letter could not be delivered to him as he was not present at his home at that point of time. However, he made a request that the same be again sent to him. It is contended on behalf of the petitioner that the said letter could not be delivered to him even after filing a reply to the counter affidavit. A copy of another letter has been brought on record as contained in Annexure-19 to show that he had requested the concerned authority to send a letter at the address given therein. Learned counsel submits that his appointment letter has been declared to be invalid on the ground that the dispatch register has been issued under 5 different pretext to the Sub-Treasury Officer, Barh. It has been submitted that authority concerned could not have declared his appointment letter to be forged one merely on the basis of the aforesaid dispatch register. On this point, learned counsel has placed reliance upon a decision of the Apex Court in Subodh Kumar Prasad vs. State of Bihar & Ors. { 2001(3) PLJR 187 (SC)}. It has been submitted that the Apex Court in the aforesaid decision has held that though a fake appointment letter constitutes a cause for disciplinary action but in such cases what ought to be really examined is the letter itself and not the dispatch registers. Learned counsel also challenges the order on the ground that the petitioner has worked for about 16 years, however, without initiating proper proceeding of inquiry, he has been dismissed and the action of the State is in teeth of the provision as contained in Article 311 of the Constitution of India as petitioner's service, after his appointment, was regularized after completion of training. It has also been urged that the order impugned is also in violation of the earlier order passed by a Bench of this Court in CWJC No. 7493 of 2005, a copy of which has been appended as Annexure-16. Learned counsel drew attention of this Court towards the aforesaid order to show that the State 6 authority was required to serve a fresh appropriate show cause seeking reply of the petitioner and only after hearing the petitioner in person, the authority concerned was directed to pass final order. However, in the present case, no opportunity of hearing has been given to the petitioner. Learned counsel appearing for the State admitted that a Bench of this Court while passing the aforesaid order, has of course directed for issuing fresh appropriate show cause seeking reply of the petitioner, if any, submitted by him and then upon hearing the petitioner order was to be passed, however, it has been urged that in the present case notices were issued upon the petitioner under registered cover at the first instance by letter dated 10.04.2007 and then again under letter dated 22.05.2007. Again the same was returned back with endorsement that no person of such name lives there. Thereafter, notice was published in a Daily Newspaper ‘Aaj’ on 20.6.2007 but the petitioner neither submitted any show cause nor did he appear. On 6.7.2007, the petitioner filed a petition stating therein that he has got knowledge from the reliable sources that some letter was sent to him by post, however, the same was returned back as he was not present in the house and such letter may be delivered to the petitioner 7 once again. Thereafter, again a letter was issued on 19.07.2007 along with a copy of the earlier letter but again, even after lapse of one month, he neither appeared nor had filed any show cause. Thereafter, the matter was enquired ex parte and it was found that the Memo No.960 dated 22.03.1988 was issued for certain different purpose to the Sub- Treasury Officer, Barh. During the course of inquiry it has also been found that the petitioner has never tendered any application for his appointment on compassionate ground nor had there been any recommendation for his appointment. Not only that, even the father of the petitioner Late Raghubansh Kumar Sinha was not found to have worked in the concerned school, i.e. the Primary School, Lohia Nagar, Patna as Assistant Teacher as has been claimed by the petitioner. Thus, it has been held that the petitioner had got his appointment after producing forged appointment letter and he has been dismissed from service. The amount which has been paid to the petitioner by way of salary and allowances have also been directed to be recovered. Learned counsel for the State has urged that there is no illegality in the order as the petitioner himself has to be blamed for not appearing before the appropriate authority as his whole purpose was to somehow 8 delay the process by evading inquiry and claim for salary for the aforesaid period. Upon hearing the parties, this Court is also of the opinion that the petitioner had been given sufficient opportunity for filing show cause and it appears from his conduct that he has tried to evade the proceeding even after issuing show cause thrice by the authorities. Notice was published in the newspaper also and even then he chose not appeared. Thus, the authority concerned was left with no option than to proceed ex parte. It is also apparent from the order impugned that the same has not been passed merely on the ground that the dispatch register shows that the concerned letter was sent to the Sub-Treasury Officer, Barh for some other purpose but after examining all the records it has come to the conclusion that the petitioner's father was also never appointed at the post of Assistant Teacher in Primary School, Lohia Nagar, Patna and, when his father was not a government teacher, there would no question of appointment of the petitioner on compassionate ground. That apart, it has also been found by the authorities that neither the petitioner had ever applied for the appointment on compassionate ground nor had the concerned committee or authority ever recommended 9 his name for such appointment. Thus, the authorities have come to the conclusion that the petitioner has obtained service by playing fraud. It is well settled that the fraud vitiates the very solemnity of the proceeding. A Full Bench of this Court in Awadhesh Kumar Choudhary and others vs. The State of Bihar and others reported in 1987 PLJR 1074 has held that where the initial appointment to the temporary posts was ab initio invalid- no notice or opportunity of hearing is mandatory at the person, whose services are terminated, has no right to continue in service. The Apex Court in R. Vishwanatha Pillai vs. State of Kerala and others with Vimal Ghosh V vs. State of Kerala and others reported in AIR 2004 SC 1469 has held that when a person entered in service on the basis of forged or false certificate and he was given due opportunity to defend himself before the Committee which was scrutinizing the same, the order terminating services passed by the appointing authority cannot be set aside on the ground of non-compliance of procedure under Article 311 as the appointment was acquired by practicing fraud. In the present case, the petitioner has moved twice earlier before this Court by filing CWJC No. 9699 of 2004 and again by filing CWJC No. 7493 of 2005. The matter was 10 relegated back to the authorities to take a decision after issuance of show cause upon the petitioner for forged appointment of the petitioner. Thereafter, fresh opportunity was given to the petitioner as has been stated earlier. However, the petitioner, for the reasons best known to him, had evaded the proceeding and even after publication of notice in newspaper chose not to appear before the authorities. The letter as contained in Annexure-19, also appears to be a ploy to somehow delay the proceeding. No other point was raised by the petitioner at the time of hearing except those which have been considered and rejected as above. In above view of the matter, this Court would not be in a position to grant any relief to the petitioner in exercise of its power under Article 226 of the Constitution of India. As a result, this application is dismissed. Sanjay-II ( Dr. Ravi Ranjan, J)