Satish Chandra Jha v. The State Of Bihar

Patna High Court CWJC No.3799 of 2006 (5) dt.23-07-2012 CORAM: HON’BLE MR JUSTICE NAVANITI PRASAD SINGH ORAL ORDER 5 23-07-2012 The two petitioners, in these writ petitions, have been dismissed from Police Service after having served for about 15 years. They have been dismissed on ground of alleged illegal appointment. It is this order and the appellate order which are under challenge. Learned counsel for the petitioners states that the two petitioners in the two writ petitions were police informers. Information given by them led to several arrests and was of great help to the police. It appears accordingly, on recommendations of the Deputy Inspector General (DIG) (Crime), the Director General of Police (DGP) (Crime) directed the appointment of the petitioners and, accordingly, the Superintendent of Police (SP) (Crime), Criminal Investigation Department (CID), Government of Bihar issued the appointment letters as far back as in 1992. Appointment letters are Annexure 1 in both the writ petitions respectively. Thereafter, they were posted in different capacities in different districts. They were sent for police training. Vide Annexure 2 being Memo No 2189 dated 10th September 2003, apart from others, the two petitioners were also issued notice to 3 Patna High Court CWJC No.3799 of 2006 (5) dt.23-07-2012 show cause why their services be not terminated as they were illegally appointed in view of Government letter No 6284 dated

20.09.2000 and subsequent letters thereto. Petitioners allege that they appeared before the authority and clearly submitted the circumstances and the manner in which they were appointed but notwithstanding that by the impugned order No 1296 of 2003 dated 26.09.2003, the SP (Crime), CID, Bihar, Patna dismissed the petitioners which order is Annexure 3 to the writ applications. The two petitioners preferred appeal before the DIG (CID), Bihar, Patna which appeals have since been dismissed as well. The appellate orders have been brought on record as Annexure B to the counter affidavit individually filed in the two cases. On behalf of petitioners, Shri Devendra Kumar Sinha, learned Senior Counsel submits that the State Government, in the Home Department, had directed the police authorities to take action for cancellation of appointments which were made on the recommendation of the then DGP Mr Saxena and take similar action in respect of other similar illegal appointments. He submits that the case of the two petitioners does not fall within that ambit. The appointment orders itself shows that they were appointed on substantive vacancies after the matter was duly approved by the DGP who, at that time, was not Mr Saxena on ground that they 4 Patna High Court CWJC No.3799 of 2006 (5) dt.23-07-2012 were informers. As such, there was total non-application of mind on behalf of departmental authorities. It is further submitted that the dismissal order, as contained in Annexure 3, does not show any consideration of petitioner’s show cause whatsoever. It merely states that action was being taken pursuant to directions issued by the State in the Department of Home as these appointments were illegal. It is submitted that there had been no proper enquiry, no consideration of their show cause and the order was a non-speaking order. Thus, the order of dismissal stood vitiated. The appellate forum could not cure the defect. It was pointed out that in several similar cases, this Hon’ble Court has set aside the dismissal orders. Some of the orders are appended to the writ petitions itself, one of which is CWJC No 5279 of 2004 decided on 18.05.2005. On the other hand, learned counsel for the State submits that in view of the judgment of this Court in the case of Sudhir Kumar –Versus- State of Bihar & Others since reported in 2000 (3) PLJR 717, the procedure for appointment has to be mandatorily followed and if the same has not been followed, the appointments are illegal. He further brings to the notice of this Court, the order dated 09.04.2010 passed in the case of Chandreshwar Pathak being CWJC No 204 of 2004 whereby in 5 Patna High Court CWJC No.3799 of 2006 (5) dt.23-07-2012 case of a similar appointee, noticing the order of this court in CWJC No 5279 of 2004, this Court refused to interfere with the order of dismissal relying on a judgment of Apex Court. Learned counsel for the petitioners Shri Sinha immediately brings to the notice of this Court that the judgment of this Court in CWJC No 204 of 2004 was reversed in appeal in LPA No 945 of 2010 disposed of on 05.01.2012 in view of order passed in CWJC No 5279 of 2004 dated 18.05.2005 which had attained finality. Having heard learned counsels and considering the matter, in my view, the first thing to be noticed is whether the appointment is illegal or not, whether it is irregular or not or whether it is valid or not is a question of fact that has to be duly determined after adjudication. Thus, this adjudication has an important place in the proceedings and has to be in conformity with principles of natural justice. It does not lie in the mouth of State to all of a sudden say on one day that all appointments made in the particular manner decades back are illegal on an ex parte appraisal of facts. Facts of each individual case have to be seen. From this, it clearly follows that the party proceeded against must be told what is against him and he must be given a chance to defend his appointment. Once that is done then to that extent, natural justice is complied but then comes the stage of order. 6 Patna High Court CWJC No.3799 of 2006 (5) dt.23-07-2012 When the order is to be passed, again the order must show that there is a conscious consideration of the facts in issue, that there has been an application of mind and the reasons for decisions must be found in the order itself. In other words, with conscious application of mind, the order has to be a speaking order. If a party is aggrieved, he has a right to appeal before the appellate forum. It is the reasons disclosed in the original order that are impugned, the validity of which are tested. If no reasons are given then what would the appellate authority do. These are basic requirements of principles of natural justice. Now coming to the facts of the present case. The order of appointment itself gives the manner in which the appointments were made. They were approved by the highest functionary. They were not at the instance of DGP Mr Saxena. The reason for appointment is also given. The petitioners, having received notice, had given explanations but merely because Home Department had issued a letter without considering explanations given, by a totally non-speaking order, appointment has been cancelled. The appeal has considered various aspects but refused to interfere with the order of dismissal. In my view, the order of dismissal, being a non-speaking order, does not satisfy the principles of natural justice. May be it does 7 Patna High Court CWJC No.3799 of 2006 (5) dt.23-07-2012 show some considerations but that is not sufficient. In the case of Mahindra and Mahindra Ltd – Versus- Union of India and Another since reported in AIR 1979 Supreme Court 798, the Apex Court has discussed what is application of mind and what is a speaking order. The facts of that case were that there was a trade agreement between the Company Mahindra and Mahindra and its dealers. They were scrutinized by the MRTP Commission ex parte. The Commission found certain clauses to be restrictive and certain clauses to be not restrictive. Prohibitory orders were, accordingly, issued. That is what was challenged before the Apex Court by the Company. The Apex Court clearly held that by striking down some of the clauses and by not striking down some, it clearly held that the Commission had applied its mind but still the order of the Commission has been set aside by the Apex Court as no reasons having been given in the order, the order could not be sustained. Thus seen, the order of dismissal, as passed by the SP (Crime), CID, Bihar, Patna, cannot be sustained. Learned counsel for the State then submits that whatever may be the illegality in the original order, the appellate order has considered the matter apparently in great details. Thus, there cannot be an allegation of any prejudice. My answer to this 8 Patna High Court CWJC No.3799 of 2006 (5) dt.23-07-2012 is what the Supreme Court held in the case of Institute of Chartered Accountants of India –Versus- L K Ratna and Others since reported in AIR 1987 Supreme Court 71. Their Lordships approved the view that the infraction of natural justice at the original stage cannot be cured at the appellate stage. Their Lordships have held in the said decision that the law does not envisage an unfair trial followed by a fair appeal because if that were so then a delinquent would lose out one forum which the law otherwise provided to him. Law envisages a fair trial followed by a fair appeal. In view of the aforesaid facts, I am unable to sustain the order of dismissal, as affirmed by the appellate authority. They are consequently quashed. However, liberty is given to respondents to proceed afresh in accordance with law, if they are so advised. The writ applications are, accordingly, disposed of. M.E.H./-AFR (Navaniti Prasad Singh)