IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5572 of 2009 KUMAR UPENDRA NARAYAN Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner: M/s Siya Ram Sahi & Sunil Kumar, Advocates For the State : Mr H.S.Roy, AC to AAG 2 ----------- 2. 1.05.2009 Heard learned Counsel for the petitioner and the learned Counsel for the State. It is the case of the petitioner that an advertisement was issued in 1989 inviting applications for appointment on the post of Clerk. The name of the petitioner was forwarded in October 1989 through the Employment Exchange where he was registered. In November 1989 he was interviewed when on 3.12.1989 he came to be appointed under the pen of the Civil Surgeon cum Chief Medical Officer. After he had worked for over ten years a show cause notice was issued to him on 11.10.2000 that an enquiry had been held into the legality of his appointment and it had been found that it was a forged appointment. After having made up their mind on the illegality of the appointment, the respondents proceeded to fulfill the formality of a show cause notice requiring the petitioner to submit his reply which he did. Fortunately for him his reply was considered. After consideration of the cause shown by him the Additional Collector, Gaya wrote to the Commissioner, Magadh Division on 20.10.2000 that the petitioner was appointed after an advertisement and forwarding of his name from the Employment Exchange and that the petitioner had produced 2 necessary papers. His name finds place at serial 2 of the list of persons whose cases were being examined. Notwithstanding the same his salary was stopped. He came to this Court in CWJC No. 3359 of 2001 when directions were issued to decide his representation for payment of salary. The respondent Commissioner examined whole issue again and on 2.6.2001 gave clearance for payment of his salary, satisfied of the nature of the appointment. The petitioner was nonetheless continued to be hounded when on 28.12.2002 fresh show cause notice in a cyclostyled format was issued, by merely filling in the blanks with the name of the petitioner. Then followed his termination order dated 27.6.2003 stating that the petitioner had failed to produce proof of his appointment and the Civil Surgeon cum Chief Medical Officer was also not in a position to produce the records. The Civil Surgeon cum Chief Medical Officer however did state that the procedure were followed but which the authorities were unable to accept in absence of any proof given by the Civil Surgeon cum Chief Medical Officer. Therefore the fault lay with the Civil Surgeon and the penalty was to be imposed on the petitioner. He came to this Court in CWJC No. 7846 of 2003 which was disposed off along with LPA No. 946 of 2003 and analogous cases referring the matter to enquiry by a committee. The impugned order dated 5.1.2009 has then followed that the committee had found the appointment to be fraudulent and forged. 3 It is the case of the petitioner that in this enquiry pursuant to the order of the Division Bench, it was the appointment of the petitioner which was at stake but the respondents did not consider it prudent to as much as issue a show cause to him of the materials on which they were assessing the appointment as fraudulent and forged. This becomes more important in view of the earlier enquiry report dated 20.10.2000 and 2.6.2001 and the communication of the Civil Surgeon himself noticed in the impugned order of termination dated 27.6.2003 that the appointment was valid but the Civil Surgeon was unable to produce papers. When this Court in LPA No. 946 of 2003 referred the matter to the Committee, this Court did not issue any direction to hold an ex parte enquiry. In fact no Court of law can pass an order giving direction for violation of principles of natural justice, that no man can be condemned unheard. This Court is satisfied that the impugned order of termination dated 5.1.2009 violently clashes with the own report of the respondents dated 20.6.2000 and 2.6.2001 which has not been subject matter of consideration by the impugned order dated 5.1.2009. There is not even a brief discussion in the order dated 5.1.2009 of the nature of materials and the enquiry held on which the respondents were satisfied that the appointment was fraudulent and forged. The petitioner was appointed in 1989. He was sought to be terminated in 2003 nearly 14 years later. He is still being hounded nearly 20 years after his appointment. It is as if 4 virtually the respondents wish to generate an industry of appointment and termination by raising issues of validity of appointment years after the appointment is made. The illegality attributed to the petitioner being not an individual act. There was someone who granted the benefit to him for a consideration. If the respondents wish to reopen such matters subsequently after long lapse of time they are obliged to bring within the ambit of the enquiry those who made the appointment and proceed appropriately against them also under the Bihar Pension Rules, Indian Penal Code or the Service Rules of the delinquent concerned, as the case may be. Only in that event can the petitioner be also proceeded against. The order dated 5.1.2009 is quashed. The petitioner stands reinstated but with a liberty to the respondents to proceed afresh in the matter as directed above. The writ application stands allowed. Learned Counsel for the petitioner next raises an issue of back wages. Liberty is granted to the petitioner to file application for the same before the authorities which is required to be considered by them in accordance with the principles for grant of back wages after holding an enquiry. Snkumar/- (Navin Sinha,J.)