State Of Uttarakhand & Others vs Mehar Singh

Ramesh Ranganathan, CJ

This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (S/S) No.1152 of 2016 dated 28.03.2017,

In the order passed in Writ Petition (S/S) No.1152 of 2016 dated 28.03.2017, the learned Single Judge observed that the petitioner was appointed as a Basic Teacher; he was placed under suspension on 05.03.2016; a charge-sheet was issued to him on the same date i.e. 05.03.2016; he was granted ten days' time to file reply; his services were terminated on 02.06.2016 without holding a regular inquiry; the petitioner was a permanent employee; his services could only be terminated in conformity with Article 311 of the Constitution; instead of completing the inquiry, the State Government had abruptly terminated his services; and there was, therefore, non-application of mind by the District Education Officer, Primary Education. Relying on the judgment of the Supreme Court, in D.K. Yadav vs. J.M.A. Industries Ltd.: (1993) 3 SCC 259, the Writ Petition was allowed, the impugned termination order was quashed and set-aside, and the appellants-State was directed to re-instate the respondent-writ petitioner with all consequential benefits with a period of six weeks from the date of the order. However, liberty was reserved to the State Government to proceed with the matter in accordance with law.

Similar orders were passed in several other Writ Petitions including Writ Petition (S/S) No.650 of 2016 dated 28.03.2017, against which Special Appeal No.543 of 2017 was filed. We had, in our order dated 13.02.2019, observed that setting aside the order of punishment would only require that the order of suspension be continued, and for the disciplinary inquiry to be completed early. We had modified the order of the learned Single Judge, and had directed the appellants-State to continue to pay the respondent-writ petitioner therein subsistence allowance, which he was entitled to during the period of suspension, till the completion of departmental inquiry initiated against him; and to complete the departmental inquiry with utmost expedition and, in any event, not later than four months from the date of production of a certified copy of the order.

While we would have passed a similar order, as was passed in Special Appeal No.543 of 2017 dated 13.02.2019, in the present case also, the respondent-writ petitioner died during the pendency of this appeal on 09.11.2017.

Mr. C.S. Rawat, learned Addl. Chief Standing Counsel appearing for the State-appellants, would submit that the respondent-writ petition had secured appointed as an Assistant Teacher by producing a fake and fabricated basic teacher certificate; the appellants had ascertained this fact from the Deputy Registrar, Exam Regulatory Authority, U.P. Allahabad; and in cases where an employee secures employment by playing fraud on the department, the provisions of Article 311 of the Constitution are not attracted. He would rely on the judgment of the Supreme Court, in R. Vishwanatha Pillai vs. State of Kerala & others: (2004) 2 SCC 105, in this regard.

The respondent-writ petitioner was initially appointed as an Assistant Teacher in the year 1997 and continued as such for two decades till he died in the year 2017. Assistant Teachers in Government Schools are also government servants entitled for protection under Article 311 of the Constitution of India. Disciplinary proceedings were initiated against the respondent-writ petitioner pursuant to a charge-sheet being issued to him on 05.03.2016, 19 years after he was appointed as an Assistant Teacher in 1997. It is only if the information obtained by the appellants-State, behind the respondent-writ petitioner's back, was put to him, a charge-sheet was issued, a disciplinary inquiry was held, and the disciplinary authority, on the basis of the enquiry report, held him guilty of the charge, could he, thereafter, have been imposed a punishment, including termination of his services. The submission put forth, on behalf of the appellants, that the certificate produced by the respondent-writ petitioner, at the time of his initial appointment in the year 1997, was fabricated, is, at best, an allegation. It is only if such an allegation is established pursuant to a duly constituted departmental enquiry, can action be taken against the charge-sheeted employee thereafter, including passing of orders dismissing or removing him from service. As this contention, urged on behalf of the appellants-State, does not merit acceptance, it is unnecessary for us to examine the submission of Mr. Kishore Kumar, learned counsel for the respondent-writ petitioner, that the basic teacher certificate produced by the petitioner was genuine; and the very appointment order, issued to him when he was initially appointed in the year 1997, records that he was being appointed after the genuineness of the basic teacher certificate, produced by him, was verified.

In R. Vishwanatha Pillai, on which reliance is placed on behalf of the appellants, the petitioner was removed from service since the caste certificate produced by him, claiming to be a member of the Scheduled Castes, was held not to be genuine by the Scrutiny Committee, which had gone into the genuineness of the said caste certificate. The findings recorded by the Scrutiny Committee had attained finality and it was on the basis of the findings of the Scrutiny Committee, whose report had attained finality, that the services of the petitioner therein were terminated.

Unlike in R. Vishwanatha Pillai, where the finding recorded by the Scrutiny Committee, that the petitioner therein had secured the false Scheduled Caste certificate, had attained finality, in the present case, the claim of the appellants that the respondent-writ petition had produced a fabricated basic teacher certificate, for securing appointment as an Assistant Teacher, remained an allegation till the respondent-writ petitioner died. It is only if such an allegation was examined in duly constituted Departmental enquiry proceedings, and the guilt of the respondent-writ petitioner established, would the appellants then be justified in holding that the basic teacher certified produced by him at the time of his initial appointment was not genuine, and in imposing punishment on him. As the order of 2termination, impugned in the Writ Petition, was passed even without conducting a departmental inquiry, the learned Single Judge was justified in relying on the judgment of the Supreme Court in D.K. Yadav, and in quashing the termination order.

While we may have granted the State-appellants liberty, like we did in other cases, to conduct a departmental inquiry against the respondent-writ petitioner, he died in the meanwhile. An order similar to the one passed by us in Special Appeal No.543 of 2017 dated 13.02.2019, cannot therefore be passed in this appeal, since no department inquiry can be held against a dead person

An application was filed on 13.03.2019 after more than 15 months of the death of the deceased-writ petitioner to bring his legal representative on record. As the respondent-writ petitioner died during the pendency of the appeal, and no steps were taken for nearly 15 months after his death, to bring his legal representatives on record, and as no explanation is forthcoming for the inordinate delay, the appeal must be, and is accordingly, dismissed as having abated.

Since the main appeal is itself being dismissed, the substitution application is also dismissed. No costs.