Dismissed

The State Of Bihar and Ors. v. Meera Sinha

Patna HC15 Apr 2014L.P.A/568/2013

Case brief

AI extract

What is this about?

The Patna High Court held that termination of employees alleged to have obtained posts via forged certificates requires a proper departmental inquiry with a reasoned order and opportunity of defense. An ex parte decision by a committee is a violation of natural justice, leading to dismissal of the appeals.

What did the court decide?

Appeals dismissed; order directing reinstatement upheld; leave given to appellants to proceed afresh in accordance with law.

The State Of Bihar and Ors. Vs Meera Sinha — Service and Employment | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.568 of 2013

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The State Of Bihar through the Principal Secretary Department Of Health, Government of Bihar, Patna

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The Director-In-Chief Health Services, Government of Bihar, Patna

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The Civil Surgeon-Cum-Chief Medical Officer Madhubani

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The Incharge Medical Officer, Primary Health Centre, Basopatti, Madhubani

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.... .... Respondents-Appellants

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Versus

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Meera Sinha W/O Sri Rajendra Prasad R/O Village- Bharati, P.S.- Hilsa,

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District- Nalanda

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.... .... Petitioner-Respondent

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

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with

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Letters Patent Appeal No.582 of 2013

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

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The State Of Bihar through the Principal Secretary, Department of Health, Government of Bihar, Patna

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The Director-In-Chief, Health Services, Government of Bihar, Patna

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The Civil Surgeon-Cum-Chief Medical Officer, Darbhanga

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The In Charge Medical Officer, Primary Health Centre, Baheri, Darbhanga

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.... .... Respondents-Appellants

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Versus

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Vidyawati Sinha @ Kumari Vidyawati Sinha W/O Nawal Kishore Prasad Singh Resident Of Village Teka Bigha, P.S. Chandi, District - Nalanda

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.... .... Petitioner-Respondent

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

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with

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Letters Patent Appeal No.1105 of 2013

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Patna High Court LPA No.568 of 2013 (6) dt.15-04-2014

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Civil Writ Jurisdiction Case No. 16907 of 2009

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====================================================== 1. The State Of Bihar through the Principal Secretary, Department of Health, Government of Bihar, Patna

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1. The Director-In-Chief, Health Services, Government of Bihar, Patna 3. The Civil Surgeon-Cum-Chief Medical Officer, Jamui

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The Incharge Medical Officer, Primary Health Centre, Sikandra, Jamui .... .... Respondents-Appellants

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Versus

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Arvind Kumar S/O Late Bechan Ram Resident Of Village - Chandi Dih, P.S. Chandi, District - Nalanda

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.... .... Petitioner-Respondent ====================================================== Appearance : (In LPA No.568 of 2013) with (In LPA No.582 of 2013) with (In LPA No.1105 of 2013) For the State (Appellants) : Mr. D.K. Sinha, Sr, Adv., Mr. Sudhir Kumar, AC to AAG-2, Mr. Alok Kr. Rahi, AC to AAG-2 & Mr. Abhinary Roy, AC to AAG-2 For the Respondents : Mr. Banwari Sharma, Mr. Shiv Kumar and Mr. M.J. Prabha, Advocates ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA and HONOURABLE MR. JUSTICE VIKASH JAIN ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 6 15-04-2014 I.A. No. 3369 of 2013 has been field to condone delay of 486 days in filing the appeal. We have considered the

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Patna High Court LPA No.568 of 2013 (6) dt.15-04-2014

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submissions on behalf of the parties and the explanation for delay. In view of the larger question of public interest involved with regard to appointment on public posts, we consider it proper to condone delay. The I.A. application is allowed.

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The present appeals arise from a common order dated 19.10.2011 disposing analogous cases. The learned Single Judge held that the termination of the respondents on allegations of appointment on basis of forged certificates was bad. They had continued on their posts for more than 10 years without protection of any interim order from a Court or Tribunal, having been appointed on vacant posts, were possessed of requisite qualification and hence were entitled to regularization and reinstatement in terms of 2006 (4) SCC 1 (Secretary, State of Karnataka & Ors. Vrs. Uma Devi (3) and Others).

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Learned Additional Advocate General- 2 assailing the order under appeal submitted that the respondents were appointed on basis of forged experience/training certificates. A show cause notice was issued, and the termination order followed thereafter after considering the cause shown. In the earlier writ petition filed by the respondents questioning their termination, heard analogous with LPA No. 946 of 205 and others, the matter was referred to the five man Committee which has opined their appointments to be forged for the

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Patna High Court LPA No.568 of 2013 (6) dt.15-04-2014

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aforesaid reason. The question for reinstatement or regularization of a fake appointee does not arise.

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Counsel for the respondents disputed appointment on basis of forged certificates contending that the matter had been examined by the authorities more than once earlier when salary had been stopped but again recommenced. 2003 (4) PLJR 282 (Sitendra Kumar Singh with Analogous Cases Vrs. State of Bihar & Ors.) distinguished forged appointments holding that in such cases the authorities have to resort to disciplinary action by holding proper enquiry before termination. Reliance was also placed on 2001 (3) PLJR SC 187 (Subodh Kumar Prasad Vrs. State of Bihar & Ors.) referred therein. The respondents had replied to the show cause notice submitting the necessary documents which was rejected in a cryptic manner by simply stating that it was not acceptable without any reasons. The five man Committee on which the appellants rely never issued notice to the respondents informing them of the grounds they were required to meet and passed no reasoned order much less after considering their defence.

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We have considered the submissions on behalf of the parties. The primary question for our consideration on what appears to undisputed facts are - if there is any infirmity in the decision making process or not. If there is no infirmity, we may not go into the merits. Conversely if the decision making

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Patna High Court LPA No.568 of 2013 (6) dt.15-04-2014

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process is flawed, the final conclusion is irrelevant.

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A show cause notice was issued to the respondents on 8.10.2001, 18.10.2002 and 10.02.2003 respectively calling upon them to inter alia submit copies of their training certificates and the Institution from which they had acquired the training. It did not allege that their certificates were forged/fake or doubtful. The respondents submitted their reply enclosing the necessary documents. Thereafter the appellants passed an order on 8.06.2004 and other dates respectively that their training certificates had been examined and found to be forged referring to an enquiry report dated 25.5.2004 of the Deputy Director Health Services. No copy of the report was enclosed to the show cause notice issued on basis of the same for termination. The order of termination dated 28.6.2004 referred to the report dated 25.5.2004 and for reason of the same rejected the cause shown by the respondents in a cryptic manner as “unsatisfactory”.

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Separate writ applications were filed by the respondents. They were tagged with LPA No. 946 of 2005 and referred to the five man Committee which has held their appointments to be bad obtained on the basis of forged training certificates.

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Forgery is a question of fact. To allege that a person obtained appointment on basis of forgery, casts an aspersion and stigma. The procedure for it therefore has to be

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Patna High Court LPA No.568 of 2013 (6) dt.15-04-2014

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fair and proper by holding a proper enquiry with due opportunity of defence and consideration of the defence followed by a reasoned order.

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In Sitendra Kumar Singh (Supra), relied upon by the respondents, on similar facts a Bench of this Court has already observed that persons alleged to have obtained appointment on basis of forgery cannot be removed without a departmental proceeding. The first show cause notice issued to the respondents did not allege their training certificates to be fake but only called upon them to submit copies of the same and disclose the Institution from which training has been obtained. It was replied. The appellants then had the matter enquired into leading to the report of the Deputy Director, Health Services, on 25.05.2004 that the certificates were fake. The show cause issued to the respondents only referred to the report dated 25.5.2004 without enclosing copies of the same or the reasons why the report had opined their certificates to be fake. It is difficult to understand how the respondents could have submitted a satisfactory reply without first being informed the basis on which the appellants were of the opinion that the training certificates were forged. If that were nor enough, the reply submitted by the respondents has been rejected by a nonspeaking order stating only that it was found to be unsatisfactory.

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Any administrative order having civil consequences

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Patna High Court LPA No.568 of 2013 (6) dt.15-04-2014

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is required to be reasoned to disclose the nature of materials considered, prevent arbitrariness and encourage faith and fairness in the decision making process.

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At the subsequent stage, when the matter has been considered by the five man Committee, the appellants did not issue any show cause notice to the respondents informing them the grounds why their certificates were considered to be forged with an opportunity of defence. It was an ex parte decision arrived at by the appellants without any opportunity of defence to the respondents.

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Whether it be the first termination of the respondents on 28.06.2004 and respective dates or whether it be the subsequent five man Committee report dated 09.09.2008 both are not sustainable.

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The five man Committee report on the face of it suffers from the vice of violation of principles of natural justice and is unsustainable on that ground alone. The law stands well settled that even in matter of forged appointment proper proceedings are required to be held with an opportunity of defence. Reference may be made to 2007 (12) SCC 146 (Punjab State Electricity Board & Ors. Vrs. Leela Singh) observing at paragraph- 5 as follows:-

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“5. The charge against the respondent is that he has committed fraud in obtaining the appointment by production of a forged experience certificate. The said charge, in our considered opinion, was required to be proved in a duly constituted departmental

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Patna High Court LPA No.568 of 2013 (6) dt.15-04-2014

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proceeding. The services of the appellant could not have been directed to be terminated relying on and/or on the basis of the decision of the Board in the case of another employee”.

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If an appointment has been obtained by forgery, long continuance may not suffice simplicitor to confer a camouflage of legality.

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In conclusion, we find no reason to interfere with the order under appeal to the extent that it directs the reinstatement of the respondents but leave it open for the appellants to proceed afresh in accordance with law, if so advised.

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The appeal is dismissed with the aforesaid

modification

(Navin Sinha, J)

(Vikash Jain, J)

P.K./-

The State Of Bihar and Ors. v. Meera Sinha

Case brief

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The State Of Bihar and Ors. v. Meera Sinha

Case brief

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