Patna High Court · 1980
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5547 of 2010 ====================================================== 1. Shanti Devi W/O Ramchandra Pd. Singh R/O Vill. & P.O.Siswan, P.S.Nawadah, Distt-Nawadah. 1. The State Of Bihar through District Magistrate, Nawadah. 2. The District Superintendent of Education, Nawadah. Versus .... .... Petitioner/s .... .... Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 8 27-11-2013 Heard Mr. Dinu Kumar for the petitioner and Mr. J.P. Kishore, AC to SC-7 for the State. A counter affidavit has been filed on behalf of the respondents. The petitioner is aggrieved by the order dated 26.12.2009 passed by the respondent District Superintendent of Education, Nawadah ( for short ‘DSE’) as contained in Annexure- 3 whereby the petitioner has been dismissed /terminated from service. The petitioner claims to have been appointed as Assistant Teacher under the orders of the competent authority in the year 1980 and was posted in Primary School Shiv Narayan Bigha, Hisua in the District of Nawadah. This is what the petitioner has stated about her educational
Legal Reasoning
Patna High Court CWJC No.5547 of 2010 (8) dt.27-11-2013 2 qualification/training/experience in paragraph nos. 3 to 6 of the supplementary affidavit:- 7th examination 3. That the date of birth of the petitioner is 03.12.1950. The petitioner has from passed Class Madhyamik Vidyalaya Ohari in the District of then Gaya now Nawadah. School Leaving Certificate was issued by Headmaster of Madhyamik Vidyalaya, Ohari, District- Gaya. in petitioner supplementary examination of Prabeshika conducted by Bihar Vidyapeeth Deoghar (Bihar). Roll Number of the petitioner was 62 in the supplementary examination of 1980. Thereafter the petitioner passed Prabeshika degree IIIrd Class. appeared The in 4. That the petitioner also appeared in examination of Shahitya Bhushan conducted by Bihar Vidyapeeth Deoghar, Bihar in the year 1985 and to that effect admit card was issued showing Roll No. 35 and the petitioner was declared the examination Shahitya successful Bhushan Annual Examination conducted by Hindi Vidyapeeth Deoghar ( Bihar). 5. That the petitioner was appointed as the Middle Parshikshit Mahila in the school of Prathimik Vidyalaya Maniyochak which is evident from memo no. 55 dated 2nd August 1980 issued by District Superintendent of Education Nawadah. The name of the petitioner stands at Sl. No. 96. 6. That the petitioner was also issued certificate by Director Human of Resources Development, Ministry Government of India under the signature of Charcha Nirdeshek on 26.06.87 showing the petitioner has taken training from 17.06.87 to 26.06.87 as an Assistant Teacher Prarambhik Vidyalaya Maniyochak.” Patna High Court CWJC No.5547 of 2010 (8) dt.27-11-2013 3 An application was filed before the Lokayukta, Bihar alleging therein that the petitioner had obtained service on the strength of forged/fabricated documents/certificates. The Lokayukta, Bihar by an order communicated through letter dated 13.1.2009 ( Annexure B to the counter affidavit filed on behalf of the respondent no.2) directed the District Magistrate, Nawadah to enquire into the matter and submit a report for appropriate/needful action on the complaint lodged against the petitioner by the complainant. The District Magistrate, Nawadah, in turn, by a communication dated 4.3.2009 (Annexure A to the counter affidavit of respondent no.2) directed the DSE to make enquires on the allegations made against the petitioner and submit the report enabling the District Magistrate to send the same to the Court of Lokayukta. In the light of the said order of the District Magistrate, the DSE framed charges against the petitioner. One of the charge relates to obtaining employment based on forged/fabricated educational certificates/training certificate. The petitioner was called upon to answer those charges. The petitioner submitted his reply. The DSE himself became the conducting officer and passed the impugned order whereby it was recorded that in spite of the notice and opportunity given to the petitioner, the educational Patna High Court CWJC No.5547 of 2010 (8) dt.27-11-2013 4 certificates/training certificate etc. were not produced. The charge no.1 was held proved and the petitioner was dismissed from service.
Legal Reasoning
Mr. Dinu Kumar, learned counsel, submitted that after making an enquiry on the charges/allegations forwarded to the DSE the same was only required to be forwarded to the Lokayukta through the District Magistrate for necessary action in the light of the instruction received from the office of the Lokayukta. Instead of doing so, the respondent -DSE himself became the disciplinary authority and the inquiry officer and passed the said order. It has next been submitted that the procedure prescribed for holding the enquiry was grossly breached. He has submitted with reference to an order passed by this Court that the petitioner having continued in service for more than 20 years was not required to be dealt with in the manner in which the order has been passed. It has, therefore, been submitted that the concluding part of the order dated 26.12.2009 be annulled and the same be considered as the report on the preliminary enquiry of the allegations forwarded to the respondent State by the office of the learned Lokayukta. Learned counsel for the State, on the other hand, submits that the main charge against the petitioner as reflected Patna High Court CWJC No.5547 of 2010 (8) dt.27-11-2013 5 from the memo of charge is that she obtained Government employment as Primary Teacher on the strength of forged and fabricated documents/certificates. If that be so then the petitioner can be removed from service after giving opportunity to show cause and after verifying the genuineness of the certificates produced by the petitioner. The counter affidavit of the State, however, states otherwise. It has been stated therein that a complaint/grievance was made before the Lokayukta, Bihar. The Lokayukta, Bihar sought a report on the said allegation from the District Magistrate, Nawadah. The District Magistrate, Nawadah directed the DSE to make a preliminary enquiry into the allegations and submit a report to him for being forwarded to the office of the Lokayukta, Bihar where the matter was/is pending consideration. Nothing has been placed by the parties to show that the matter has been finally disposed of by the Lokayukta, Bihar. After hearing the parties and on perusal of the materials on record this much is evident that the enquiry against the petitioner was necessitated owing to the instruction received from the office of the Lokayukta, Bihar directing the State respondent to submit a report on the allegations. The District Magistrate having received the said instruction from the office Patna High Court CWJC No.5547 of 2010 (8) dt.27-11-2013 6 of the Lokayukta, Bihar directed the DSE to make preliminary enquiry into the allegations and furnish a report for being forwarded to the office of the Lokayukta, Bihar. The DSE became the disciplinary authority and framed charges. He himself made an enquiry in which the petitioner is said to have been given opportunity to produce the relevant documents/certificates and having found that the petitioner furnished an evasive reply the order impugned was passed. Counsel for the petitioner has challenged the said order on diverse counts. Counsel for the State has, however, contended that if any employee obtains employment by practicing fraud and/or producing forged/fabricated documents the authority would be justified in initiating an enquiry and pass appropriate order. In such case a formal enquiry may not be gone into. The facts of the present case, however, clearly indicate that the respondent- DSE was required to submit a report on the charges/allegations levelled against the petitioner in an application filed before the learned Lokayukta, Bihar. The Lokayukta, Bihar called for a report on those allegations. The respondents were required to submit a report on those charges/allegations. Without delving into the submissions made by the counsel for the petitioner and State on the correctness /legality of the procedure adopted by the Patna High Court CWJC No.5547 of 2010 (8) dt.27-11-2013 7 respondent DSE in passing the impugned order this Court does not find any difficulty in treating the order dated 26.12.2009 (Annexure-3) as a report which required to be transmitted to the office of the Lokayukta, Bihar for disposal of the pending application. If any order by the Lokayukta, Bihar directing for a departmental enquiry and/or further action against the petitioner in the matter said to be pending before him is passed, the respondents would act accordingly. Even if there is no order directing for such enquiry the respondents may initiate enquiry if it has come to the notice of the concerned respondent(s) that the petitioner obtained the employment by committing fraud and/or producing forged/fabricated documents/certificates. This Court would, however, not opine as of now whether a formal enquiry in accordance with law is to be conducted in such case or not. Learned counsel for the petitioner has submitted that a formal enquiry would be required even in such matter considering the fact that the petitioner continued in service for more than 20 years. Counsel for the State has taken a stand relying on an order passed by the Hon’ble Supreme Court that in the said enquiry the rules of natural justice are only required to be complied with and an order could be passed if it is found from the materials placed on record that the documents/certificate(s) furnished by the petitioner Patna High Court CWJC No.5547 of 2010 (8) dt.27-11-2013 8 was/were fake/forged and the employment was result of fraud. This Court, for the present, would not record any view on the said submission/counter submissions of the parties. In the facts and circumstances of the case, this Court renders last part of the order dated 26.12.2009 (Annexure-3) inoperative by which the petitioner is ordered to be dismissed from service. The said order (Annexure-3) shall be treated as the report or recommendation in the light of instruction received from the respondent District Magistrate which shall be forwarded to the office of the Lokayukta, Bihar for consideration and disposal of the complaint filed before the said Authority. The order present shall, however, not be construed as a bar from proceeding against the petitioner afresh in accordance with law if the circumstances so warrant. The petitioner shall be entitled to payment of salary if he/she continues in service. The payment of salary for the earlier period shall abide by the order to be passed by the Lokayukta, Bihar in the pending case/matter. (Kishore Kumar Mandal, J) Shyam/-