Allowed

The State of Bihar and Ors. v. Dukhi Gaira

Patna HC29 Aug 2012L.P.A/862/2011

Case brief

AI extract

What is this about?

This Letters Patent Appeal set aside a Single Judge's order reinstating a seasonal worker. The Bench held that strict criminal proof standards do not apply in departmental inquiries; preponderance of probability sufficed to show forgery of the appointment letter based on signature comparison.

What did the court decide?

Impugned judgment dated 23-07-2010 set aside; C.W.J.C. No. 13541 of 2008 dismissed. Parties to bear own costs.

The State of Bihar and Ors. Vs Dukhi Gaira — Pension and Retirement Benefits | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Letters Patent Appeal No.862 of 2011

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Civil Writ Jurisdiction Case No. 13541 of 2008

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With

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Interlocutory Application No.2303 of 2011 In

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Letters Patent Appeal No.862 of 2011

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======================================================

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The State of Bihar

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The Chief Malariya Officer, Govt. of Bihar, Patna

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The Civil Surgeon-cum-Chief Medical Officer, Madhubani

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The District Malariya Officer, Madhubani

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.... .... Respondents-Appellants

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Versus

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Dukhi Gaira son of Lt. Ram Kishun Gaira, resident of village- Maharajganj, P.S. Madhubani Town, Distt. Madhubani.

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.... .... Petitioner-Respondent

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====================================================== Appearance : For the Appellants : Mr. Piyush Lall, A.C. to AAG-1 For the Respondent : Mr. Suraj Narain Yadav, Advocate Mr. Uday Chand Prasad, Advocate ======================================================

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CORAM: HONOURABLE THE CHIEF JUSTICE

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and

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HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL ORDER

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(Per: HONOURABLE THE CHIEF JUSTICE)

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29-08-2012 Feeling aggrieved by the judgment and order dated 23^rd July 2010 passed by the learned single Judge in C.W.J.C. No. 13541 of 2008, the respondent State of Bihar has preferred

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Patna High Court LPA No.862 of 2011 (5) dt.29-08-2012

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this Appeal under Clause 10 of the Letters Patent.

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Matter at dispute is the appointment of the respondent-writ petitioner as Seasonal Worker under the District Malariya Officer made on 23^rd February 1991. The appointment of the writ petitioner was cancelled on 12^th October 1993 on the ground that the appointment letter produced by the writ petitioner was forged and that the concerned Medical Officer one Dr. R.N.Mishra had not appointed the writ petitioner as claimed by him. Criminal prosecution was launched against the writ petitioner in respect of the said incidence for offence punishable under Sections 419, 420, 467 and 468 I.P.C. By judgment and order dated 19^th January 1998 passed by the learned trial Judge in Tr. No.291 of 1998, the writ petitioner was acquitted of the aforesaid charge framed against him. The learned trial Judge held that the dispatch register produced by the prosecution was not believable and that the prosecution did not send the offending signature for verification by handwriting expert.

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In view of the acquittal in the criminal prosecution, the writ petitioner approached the appellants for reinstatement in service. The appellants did not reinstate the writ petitioner in service. Instead, by order dated 31^st December 2004 his service was terminated effective from 12^th October 1993, the date on which the appellants lodged the complaint against the writ petitioner. The said order dated 31^st December 2004 was challenged by the writ petitioner before this Court under Article 226 of the Constitution in C.W.J.C. No. 1661 of 2005. The said petition and the other similar matters came to be disposed of by the common judgment and order dated 26^th June 2006. A Bench of this Court directed the State Government to constitute a

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Patna High Court LPA No.862 of 2011 (5) dt.29-08-2012

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committee and reexamine the individual cases. The committee examined the individual matters as directed. In respect of the writ petitioner, the committee held that the appointment letter of the writ petitioner was forged; not issued from the concerned office. Unaware of the said report the writ petitioner again approached this Court under Article 226 of the Constitution in above C.W.J.C. No. 13541 of 2008 to challenge the above referred order dated 31^st December 2004.

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The learned single Judge has allowed the writ petitioner solely on the ground that the writ petitioner was acquitted of the charge in the criminal prosecution in respect of the same incidence. The order of termination of service based on the same incidence was not maintainable. Therefore, this Appeal.

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Learned advocate Mr. Piyush Lall has appeared for the appellants. He has submitted that in the criminal prosecution the writ petitioner was not honorably acquitted; although he was not acquitted by giving him the benefit of doubt either. He has submitted that the criminal Court has recorded acquittal solely on the ground that the dispatch register produced by the prosecution was not believable although it was proved by cogent evidence. The trial Court also did not believe the charge of forgery on the ground that the offending signature was not examined by handwriting expert. In the submission of Mr. Lall acquittal has been recorded for want of adequate proof of evidence on record.

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Mr. Lall has submitted that the strict standards of proof applicable in a criminal trial do not apply in a departmental action. The writ petitioner had repeatedly been asked to produce material in support of the proof of the genuineness of the appointment letter. The writ petitioner failed to do so. He has

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Patna High Court LPA No.862 of 2011 (5) dt.29-08-2012

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submitted that so far as the signature of the Medical Officer is concerned the offending signature, if compared to the natural signature of the Medical Officer, it is more than evident that the signature on the appointment letter is not in the same hand as in the natural signature. He has drawn our attention to the natural signature of the concerned Medical Officer as it appeared in the Government record.

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He has further submitted that in any view of the matter, it cannot be gainsaid that the appointment of the writ petitioner was made, if any, without following the due procedure. The appointment of the writ petitioner was, therefore, illegal and void ab initio . He has further submitted that the writ petitioner has not been in service continuously since 1993; therefore also, he cannot be reinstated now after nearly 20 years.

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Learned advocate Mr. Suraj Narain Yadav has appeared for the respondent-writ petitioner. He has contested the Appeal. He has submitted that once the writ petitioner was acquitted of the criminal charge on the same evidence the evidence having been weighed by the criminal Court, the appellants had no authority to come to a different conclusion and to hold that the appointment of the writ petitioner was on the basis of a forged appointment letter. He has also submitted that the order of termination of service cannot be made retrospective. In the present case, although the order has been made as late as on 31^st December 2004, it has been given retrospective effect from 12^th October 1993. The order is clearly illegal and cannot be sustained. To this Mr. Piyush Lall has replied that on noticing that the appointment of the writ petitioner was not legal and valid he was discontinued from service with effect from 12^th October

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Patna High Court LPA No.862 of 2011 (5) dt.29-08-2012

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Thus, the writ petitioner has not rendered any service since 12^th October 1993. The order of termination, therefore, had to be given effect from that day.

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We agree with Mr. Piyush Lall. We have perused the judgment of the criminal Court. It is apparent that although the dispatch register indicating that on the relevant date no order of appointment was issued in the name of the writ petitioner was produced by the prosecution and was proved by cogent evidence, the learned trial Judge did not believe the same to be genuine. Similarly the charge of forgery was not believed because the offending signature was not sent for examination by a handwriting expert. Thus, the prosecution could not prove its case beyond doubt on the strict standard of proof applicable in a criminal trial. We may, however, note that the learned Court did not record a clear acquittal or did not record a clear finding to the effect that the offending signature was not a forged one or that the letter of appointment was a genuine letter.

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In our opinion, in a departmental action strict standards of proof applicable to a criminal trial do not apply. If there is sufficient material and preponderance of probability, the concerned employee can be suitably dealt with.

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In the present Appeal, the appellants have brought on record the photo copy of the alleged appointment letter dated 23^rd February 1991 and the natural signature of the concerned Medical Officer from the Government records. A bare perusal of natural signature on the record with that of the signature on the alleged appointment letter is sufficient to hold that the signature on the appointment letter is not in the same hand. Besides, the appointment of the writ petitioner was made as a Seasonal

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Patna High Court LPA No.862 of 2011 (5) dt.29-08-2012

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Worker under the Malariya Eradication Project. It is also an admitted fact that for nearly 20 years the writ petitioner has not been engaged even as a Seasonal Worker. In our opinion, the writ petitioner now cannot be re-inducted as a Seasonal Worker.

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For the aforesaid reasons, we allow this Appeal. The impugned judgment and order dated 23^rd July 2010 passed by the learned single Judge in C.W.J.C. No. 13541 of 2008 is set aside. C.W.J.C. No. 13541 of 2008 is dismissed.

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The parties will bear their own costs.

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(R.M. Doshit, CJ)

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(Ahsanuddin Amanullah, J)

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Pawan/-

The State of Bihar and Ors. v. Dukhi Gaira

Case brief

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The State of Bihar and Ors. v. Dukhi Gaira

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