Raghunandan Yadav vs The State of Bihar

Chakradhari Sharan Singh, J.—Heard learned counsel for the petitioner as well as learned AC to GP 4 appearing on behalf of the State of Bihar. The petitioner seeks quashing of the letter issued vide memo No. 781 dated 25.03.2010 (Annexure-35) by the Civil Surgeon-cum-Chief Medical Officer, Samastipur in compliance of the order of this court dated 12.11.2009 passed in CWJC No. 4674 of 2006, whereby the petitioner''s service has been terminated. The petitioner also seeks quashing of the report of the Civil Surgeon containing a finding that letter No. 1326 dated 28.11.1989 was a forged appointment letter. The petitioner seeks consequential relief of his reinstatement in service as Health Educator, accordingly, after quashing of the impugned order and the report.

It is the petitioner''s case that pursuant to an advertisement issued by the office of Civil Surgeon-cum-Chief Medical Officer, Madhubani in the year 1989, he had applied for his appointment as Health Educator and he was invited for interview as he had the requisite qualification. After undergoing the process of selection, the petitioner was appointed as Health Educator and appointment letter to this effect was issued under the signature of Civil Surgeon-cum-Chief Medical Officer, Madhubani vide letter No. 1326 dated 28.11.1989. The petitioner, accordingly, submitted his joining and continued as such without any complaint against him. His service was made permanent vide memo No. 441 dated 12.02.1993.

By memo No. 746 dated 09.02.2002 the Chief Secretary, Bihar asked all the Divisional Commissioners of the State to make enquiry into illegal/fake appointments made since 01.01.1980 in the Health Department. It is the petitioner''s case that in the meanwhile the petitioner was transferred to Begusarai and then to Samastipur vide memo No. 1666 (22) dated 31.12.1996. In view of the directive of the Chief Secretary, the Civil Surgeon-cum-Chief Medical Officer, Samastipur requested the Civil Surgeon-cum-Chief Medical Officer, Madhubani (where the petitioner was initially appointed) to furnish the details of appointment made since 01.01.1980. The Civil Surgeon-cum-Chief Medical Officer, Madhubani intimated the Civil Surgeon-cum-Chief Medical Officer, Samastipur that the register relating to appointment made by the then Civil Surgeon, Madhubani for the period 09.05.1988 to 31.01.1991 had been taken by the Vigilance Department, Muzaffarpur in course of an enquiry relating to illegality of those appointments and presently they were in the office of Lok Aayukta, Bihar, Patna. The Civil Surgeon-cum-Chief Medical Officer, Samastipur is said to have, thereafter, asked the petitioner and one another employee working as Health Educator to furnish the details of their appointments. The petitioner furnished the details accordingly. From the pleadings in the writ application, it appears that vide memo No. 563 dated 03.03.2003, the petitioner was asked to submit evidence relating to circumstance in which he was appointed, as the said letter No. 1326 dated 28.11.1989, i.e., the petitioner''s appointment letter, had been declared to be forged. It was indicated that if the petitioner failed to submit evidence in support of his appointment, his service would stand terminated. The petitioner, thereafter, produced the evidence before the Civil Surgeon. However, the Civil Surgeon-cum-Chief Medical Officer, Samastipur by memo No. 1509 dated 30.06.2005 terminated the petitioner''s service as the copy of the appointment letter submitted by the petitioner was itself found to be forged.

Challenging the said order dated 30.06.2005, the petitioner approached this court by filing CWJC No. 4674 of 2006 by which the order dated 30.06.2005 passed by the Civil Surgeon-cum-Chief Medical Officer, Madhubani was quashed on the ground that the replies of the petitioner were not taken into consideration and he was not given any opportunity in respect of the materials available against him. This court remanded the matter back to the Civil Surgeon-cum-Chief Medical Officer, Samastipur to make fresh consideration in the matter after giving full opportunity to the petitioner and after supplying the documents which the Civil Surgeon-cum-Chief Medical Officer, Samastipur intended to consider for coming to a conclusion as regards validity of the petitioner''s appointment. The court also indicated that in view of the submission made on behalf of the petitioner that the mandatory constitutional requirement under Article 311(2) of the Constitution of India was not followed, the Civil Surgeon-cum-Chief Medical Officer, Samastipur would be well advised to hold a proper enquiry in accordance with law and pass final orders.

It is in compliance of the order dated 12.11.2009 that the Civil Surgeon-cum-Chief Medical Officer, Samastipur constituted a Committee to enquire into the validity of petitioner''s appointment on the basis of the said letter No. 1326 dated 28.11.1989. The petitioner was asked by a letter No. 331 dated 16.02.2010 to produce before the committee certain documents which included his first appointment letter. The petitioner, thereafter, submitted his first appointment letter and other documents through his letter dated 22.02.2010. Subsequently, by a letter dated 24.02.2010 addressed to Civil Surgeon-cum-Chief Medical Officer, Samastipur, while submitting certain documents in support of validity of his appointment, the petitioner also sought for certain documents relevant for the purpose of establishing that he was properly appointed. The petitioner was, thereafter, asked by the said committee to appear. The petitioner appeared before the committee. Thereafter, the impugned order dated 25.03.2010 came to be passed by Civil Surgeon-cum-Chief Medical Officer, Samastipur terminating the service of the petitioner on the ground that his appointment letter itself was forged.

A counter-affidavit has been filed on be-half of respondent - the State of Bihar stating therein that in course of enquiry the Civil Surgeon-cum-Chief Medical Officer, Madhubani sent a report that the appointment letter said to have been issued vide letter No. 1326 dated 28.11.1989 was forged on the ground that it did not tally with issue register. It has also been stated that pursuant to show cause issued to the petitioner, he had submitted a reply that the petitioner and others were granted permission to continue in service under the direction of Civil Surgeon-cum-Chief Medical Officer, Madhubani vide memo No. 92 dated 09.01.1991 in the light of some order of the High Court. However, upon enquiry the Civil Surgeon-cum-Chief Medical Officer, Madhubani vide memo No. 2753 dated 27.11.2004 informed that the said memo No. 92 dated 09.01.1991 was also manipulated by showing petitioner''s name at serial No. 18 whereas in fact name of one Bachchu Tiwari was at serial No. 18 in the original copy of the said letter. It has further been stated that pursuant to direction of this court dated 12.11.2009 the said enquiry committee was constituted headed by Civil Surgeon-cum-Chief Medical Officer, Samastipur as its Chairman. The enquiry was fixed on 24.02.2010 where the petitioner was asked to appear and produce relevant papers. Though the petitioner was asked to produce the original copy of his appointment letter No. 1326 dated 28.11.1989 and letter No. 92 dated 09.01.1991 but he failed to produce on the next date, i.e., 05.03.2010. Thereafter, the Civil Surgeon-cum-Chief Medical Officer, Samastipur requested the Civil Surgeon-cum-Chief Medical Officer, Madhubani to verify the documents and again the Civil Surgeon-cum-Chief Medical Officer, Madhubani vide his letter dated 13.03.2010 informed that letter No. 1326 dated 28.11.1989 was forged. It has also been stated that again vide memo No. 737 dated 19.03.2010, the petitioner was asked to produce relevant papers to prove the validity of his appointment but he failed to prove the validity of his appointment and accordingly, vide memo dated 25.03.2010 (Annexure-35) his service has been terminated.

The Civil Surgeon-cum-Chief Medical Officer, Madhubani has also filed a counter affidavit stating therein that though the petitioner''s name was not there at serial No. 18 in memo No. 92 dated 09.01.1991, by acts of interpolation, his name was substituted there in place of one Bachchu Tiwari whose name was actually mentioned in the said original letter.

Questioning the legality of the impugned order, submission on behalf of the petitioner is two fold. It has firstly been submitted that the respondents have come to a conclusion on petitioner''s appointment letter being forged solely on the basis of issue register maintained in the office of Civil Surgeon-cum-Chief Medical Officer, Madhubani. He has contended that, that could not have been the sole basis for coming to a conclusion that the appointment letter issued by Civil Surgeon in favour of the petitioner was forged. He submits that there was no enquiry done by the authorities or the committee to test the genuineness of the appointment letter, i.e., whether it was issued by the competent authority in favour of the petitioner or not. In support of his submission he has placed reliance upon a Supreme Court judgment reported in Subodh Kumar Prasad Vs. State of Bihar and Others, . The second submission, which has been made on behalf of the petitioner, is that the petitioner had became permanent employee under the State Government vide memo No. 441 dated 12.02.1993 issued by the Civil Surgeon-cum-Chief Medical Officer, Samastipur on the basis that he had completed three years of service, which fact has been mentioned in the service book (Annexure-5) also. Learned counsel appearing on behalf of the petitioner submits that, that being the position, without holding any enquiry and serving a memo of charge upon him, the petitioner''s service could not have been terminated without complying with the mandatory requirement under Article 311(2) of the Constitution of India. He submits that this court vide order dated 12.11.2009 passed in CWJC No. 4674 of 2006 had indicated that it would be well advised for the authorities to hold a proper enquiry in accordance with law. He submits that observation of this court has completely been overlooked by the respondents, while passing the impugned order. He further submits that the enquiry was conducted by a committee headed by the Civil Surgeon-cum-Chief Medical Officer, Samastipur himself who happened to be the disciplinary authority also. In such circumstance, he submits that the Civil Surgeon should not have been a member of the enquiry committee to enquire into the said allegation against the petitioner. He thirdly submits that the said enquiry committee did not submit any report and, on the basis of what transpired in course of the proceedings of the committee, the Civil Surgeon took the impugned decision and passed the order without giving any opportunity to the petitioner to deal with the findings arrived at by the said committee. He further submits that the committee/the disciplinary authority relied upon various communications/documents to arrive at the conclusion that the petitioner''s appointment letter was forged but no such document was ever made available to the petitioner and, thus, the petitioner was denied of the opportunity to deal with such documents. He contends that admittedly no allegation in form of charge-sheet was served upon the petitioner before the said committee was constituted to enquire into the allegation nor such charge was ever served upon him, thereafter. He, therefore, submits that the impugned order has been passed in breach of Article 311(2) of the Constitution of India. In support of his plea he has placed reliance upon a Division Bench order passed on 22.01.2008 in LPA No. 779 of 2007 : Ram Krishna Dubey Vs. State of Bihar and Others . Learned counsel appearing on behalf of the petitioner also submits that one of the reasons, which has been assigned in the impugned order, is that the petitioner did not submit original copy of the appointment letter. He has referred to Annex-ure-36 of the writ application, which is reply dated 02.05.2003 to the show cause notice addressed to the Civil Surgeon-cum-Chief Medical Officer, Samastipur to contend that along with such representation original copy was also enclosed.

Learned counsel appearing on behalf of the petitioner is right in his submission that before passing the impugned order, a regular enquiry should have been conducted, particularly, in view of order of this court dated 12.11.2009 passed in CWJC No. 4674 of 2006. Learned counsel appearing on behalf of the petitioner also right in his submission, while referring to the judgment of the Supreme Court in the case of Subodh Kumar Prasad (supra), that merely on the basis that the letter No. as contained in the appointment letter did not tally with the issue register, the appointment letter cannot be said to be forged. The respondents were directed to decide the dispute on the basis of materials on record, whether the said appointment letter was in fact issued by the competent authority and whether the said appointment letter was completely forged. I do not find any enquiry having been conducted on that basis. I accordingly quash the impugned order. In view of the quashing of the order, the petitioner shall be reinstated. In view of the nature of allegation that the petitioner worked against a public post on the basis of forged document, I consider it appropriate, in the facts and circumstances of the case, to remand the matter back again to the Civil Surgeon-cum-Chief Medical Officer, Samastipur/the disciplinary authority with a direction to conduct an enquiry afresh in accordance with law. He will be required to frame charge and serve upon the petitioner a copy of the charge sheet within a period of one month from the date of receipt/production of a copy of this order. After service of the charge-sheet, the petitioner will be required to reply to the said charge memo within a period of 15 days thereafter. It is indicated here itself that Civil Surgeon-cum-Chief Medical Officer, Samastipur shall ensure that along with the said charge sheet, documents on which he would be intending to establish the charge that the said appointment letter was forged, will also be supplied. After appointing an enquiry officer, a regular disciplinary enquiry shall be held against the petitioner with respect to the charge of obtaining appointment on the basis of a forged appointment letter. The petitioner is directed to co-operate with the said enquiry. The enquiry must conclude within six months from the date of appointment of the enquiry officer who shall, accordingly, submit his report to the disciplinary authority, i.e., the Civil Surgeon-cum-Chief Medical Officer, Samastipur within the said period. On the basis of the said report, the Civil Surgeon-cum-Chief Medical Officer, Samastipur will proceed accordingly and he may either accept or reject the enquiry report of the enquiry officer. If the Civil Surgeon-cum-Chief Medical Officer, Samastipur comes to a conclusion that the charge against the petitioner could not be proved, the petitioner shall be paid the salary from the date of his reinstatement pursuant to the present order. In such circumstance, the petitioner will also be entitled for payment of 50% of his salary and allowance from the date when he remained out of service till the date of reinstatement pursuant to the present order. In the event, the Civil Surgeon-cum-Chief Medical Officer, Samastipur-cum-Disciplinary Authority comes to the conclusion that the charge against the petitioner stood proved, he will pass order accordingly. The petitioner in that circumstance will not be entitled for any salary for the period after his reinstatement pursuant to the present order. It is further directed that if in course of the enquiry conducted, pursuant to the present order, the disciplinary authority comes to the conclusion that the said appointment letter was forged, he would be under obligation to institute first information report in this regard. If any first information report is instituted, keeping in view the nature of allegation and the loss caused to the public at large, the investigating agency will be required to conclude the investigation as expeditiously as possible.

This writ application is allowed but with the observations as above.