IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1289 of 2009 1.THE STATE OF BIHAR THROUGH THE SECRETARY PUBLIC HEALTH ENGINEERING DEPARTMENT, VISHESHWARAIYA BHAWAN, BAILEY ROAD, PATNA. 2.THE ENGINEER-IN-CHIEF-CUM-SPECIAL SECRETARY, PUBLIC HEALTH ENGINEERING DEPARTMENT, VISHESHWARAIYA BHAWAN, BAILEY ROAD, PATNA. 3.THE CHIEF ENIGNEER(URBAN)PUBLIC HEALTH ENGINEERING DEPARTMENT, VISHESHWARAIYA BHAWAN, BAILEY ROAD, PATNA. 4. THE DISTRICT MAGISTRATE-CUM-COLLECTOR, GAYA-------- APPELLANTS/RESPONDENTS. Versus RAM BRIKSH PRASAD, SON OF SRI CHHAKAURI RAM, RESIDENT OF VILLAGE-KAZISARAI, POLICE STATION KAKO(PALI), DISTRICT- JEHANABAD-----PETITIONER/RESPONDENT. ----------- For the Petitioners:- Mr. Sanjay Kumar-II, G.A.5. Mr. Kamlendra Prasad Singh,A/C to G.A.5. Mr. Pawan Kumar, A/C to G.A.5. For the Respondent:- Mr. Abhinav Shrivastava. 6. 11.02.2011. The present Letters Patent Appeal arises out of an order dated 17.1.2008 passed in C.W.J.C.No.2399 of 2000 by the learned single Judge of this Court. The facts of the case are that the respondent had, allegedly, obtained his employment on production of a fraudulent caste certificate claiming himself to a member of a particular Scheduled Caste. The certificate was obtained because his mother was of lower caste and his father was of higher caste. Proceeding was initiated against him for obtaining employment on fraudulent caste certificate and a punishment of censure along with withholding of three increments were 2 passed against him on 30.7.1997. The respondent challenged the above order of punishment before this Court in C.W.J.C.No.8125 of 1997 in which he was asked to file a show cause regarding the genuineness of his caste certificate. The respondent did not do that and withdrew the writ petition. While asking for the show-cause from the respondent this court had observed in its order dated 13.7.1999 in the above noted C.W.J.C.No.8125 of 1997 that if the employment was obtained by the respondent on the basis of a fraudulent caste certificate against a post which was meant for Scheduled Caste candidate he cannot continue in service. On withdrawal of the above noted writ petition the employers of the respondents issued show cause Annexure-2 which is dated 24.9.1997 asking him as to why his services should not be terminated as he did not file the show cause before this Court and withdrew the writ petition giving rise to an inference that the allegation of getting an employment on a fraudulent caste certificate against a vacancy meant for Scheduled caste was true. The petitioner was dismissed from service without 3 initiating any regular proceeding by an order passed on 25.2.2000. The respondent challenged that order in C.W.J.C.No.2399 of 2000 and accordingly, the learned single Judge quashed the order of dismissal and directed that the petitioner should be reinstated into employment and further that the payment of back wages to the respondent may be considered by the appellant State and others on filing of an appropriate representation by the respondent. After having heard the learned counsel for the appellant state and the counsel for the respondent, we are of the view that the impugned judgement passed by the learned single Judge does not appear perverse or erroneous inasmuch as this Court while asking the respondent to file his show cause, even if a show cause had been filed, could not have done anything more than to refer the matter to the employers of the respondent, in a case it had been found that the employment was obtained by the respondent on the basis of fraudulent caste certificate. The allegation of obtaining the employment on a fraudulent caste certificate was enquired into in the earlier department proceeding and a sentence of censure and 4 withholding of increments had been passed. That order of punishment dated 30.7.1997 had become final. There was no appeal or any other proceeding taken up by the department to challenge the order of punishment so as to enhancing it. As such, issuance of notice so as to reviewing the earlier order of punishment by enhancing it without drawing up a fresh proceeding, to us, appears completely against the principles of natural justice. The learned counsel appearing for the State has placed reliance of the Supreme Court decision reported in (2005)7 SCC 690 Bank of India and Another Vrs. Avinash D.Mandivikar And Others, to submit that the law laid down by the Supreme Court was that in case any employment or admission is obtained on a fraudulent caste certificate against a vacancy or seat which was reserved for any special category of that class then the final result could be dismissal or cancellation of the employment or the admission as the case may be. The learned counsel was placing before us the propositions of the Supreme Court in paragraph-5 which reads as under:- “In Kumari Madhuri Patil v. Addl. Commr., Tribal Development the object for 5 granting certain benefits to persons belonging to Scheduled Castes and Scheduled Tribes and the approach to be adopted in matters where benefits are fraudulently obtained was highlighted. At para 13 of the judgement it was, inter alia, noted as follows(SCC pp.254-57) “13. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, which may be the following: 1. The application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level. 2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-gazetted officer with particulars of castes and sub-castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails 6 from and other particulars as may be prescribed by the Directorate concerned. 3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post. 4. All the State Governments shall constitute a Committee of three officers, namely, (1) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities. 5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over- all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the pro forma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of 7 burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc. 6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be „not genuine‟ or „doubtful‟ or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by registered post with acknowledgement due or through the head of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-à-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof. 7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed. 8 8. Notice contemplated in para 6 should be issued to the parents/ guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates. 9. The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant. 10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee. 11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution. 12. No suit or other proceedings before any other authority should lie. 13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136. 14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false 9 claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament. 15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post.” Thus, what appears from the above is that the Supreme Court was laying down broader guidelines for taking care of such situations under which any fraudulent caste certificate had been the basis for entry into any service or into any academic institution. It is not denied that this guideline has not been adopted and enforced in the State of Bihar. It is not denied also that in this State there are rules governing the field of domestic enquires on the charges of the misconduct of various nature. In face of the rules they have to prevail as regards conducting a domestic enquiry regarding 10 the alleged misconduct of any employee and in absence of the adoption of the guidelines laid down by the Supreme Court, the same cannot be complied to the disadvantage of the employee who had a right to get his conduct enquiry into according to the procedure contained in relevant rules. We are of the view that a misconduct could be a subject matter of departmental enquiry even if any punishment has been inflicted if some additional facts come on record but in absence of any enquiry by properly framing a charge and giving the opportunity of hearing to the employee, could simply be against the principles of natural justice. The Supreme Court guidelines also indicate the same position of law. In that view of the matter, we are of the opinion that merely by virtue of the above guidelines the order of dismissal passed by the department upon the respondent could not be up-held. The learned single Judge was right in quashing the dismissal order of the respondent in absence of any departmental proceeding and enquiry. However, we want to direct the Chief Secretary, Government of Bihar that the government consider the guidelines as laid down 11 by the Supreme Court in Bank of India(Supra) and adopt a proper resolution so as to taking care of such instances of misconduct either in getting an employment or getting admitted into any educational institution. The government may consider issuing a proper resolution in addition to the existing rules presently covering the servants of the State. Let a copy of this judgement be handed over to the learned counsel appearing for the appellants for needful. This L.P.A. is dismissed with the above observations. Brajesh.Kr./AFR ( T.Meena Kumari,J. ) ( Dharnidhar Jha,J.)