SANJAY KUMAR Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) In the instant writ application, the petitioner has inter alia prayed for issuance of a writ in the nature of certiorari for quashing the impugned order contained in letter no. 1853 dated 24.10.2005, subsequently modified vide letter no. 2113 dated 02.12.2005, whereby the service of the petitioner was terminated with effect from the date of issue of the letter and further for issuance of a writ in the nature of mandamus commanding upon the respondents to release salary of the petitioner for the period Oct. 1997 to till date and allow the petitioner to continue in the service without hindrance since the petitioner has been validly appointed by the competent authority and was working in the department continuously since 6.10.1994 and also for grant of other consequential benefits for which the petitioner is entitled to in accordance with law.

(2.) Sans details, the facts as disclosed and delineated in the writ application, are that the petitioner having all requisite qualification for the post of family welfare worker was initially appointed along with others initially temporarily in the pay scale of Rs.975-1540 and was posted at primary Health centre, mandu, Hazaribagh with a direction to join within one month otherwise his appointment shall be cancelled automatically. It has been further averred that the petitioner complied with the direction of the concerned authorities as contained in appointment letter memo no. 12 (go) dated 6.10.94 and he joined in the office of the In-charge medical officer, mandu, Hazaribagh. The petitioner after joining the office of the In charge Medical Officer, Primary Health Centre, Mandu, was directed to join the Health sub-centre Banji within jurisdiction of I/C Medical Officer, Mandu vide memo no. 381 dated 09.12.1994. The petitioner was transferred from Banji Health Sub-centre (M.N.P.) on the post of B.H.W. till further order vide letter dated 29.06.1996. Since after joining of the petitioner, prior to Dec., 1997, he was paid salary regularly, but, suddenly by an order dated 22.11.1997 issued by the respondent no. 3, the salary of the petitioner as well others were withheld and before passing the order of withholding salary of the petitioner no any notice or show cause etc. was issued to the petitioner. Soon after issuance of aforesaid order dated 22.11.1997, the petitioner along with others submitted representations, along with relevant documents before concerned authorities as well as the respondents in pursuance where of vide memo dated 29.08.1998, the order was issued by the respondent no. 3 for releasing all the salary of the petitioner and others forthwith, although in the said letter, it was mentioned that the enquiry procedure shall continue. From the said letter dated 29.08.1998, whereby recommendation was given by the In charge M.O., P.H.C., Mandu, it is also apparent that the said order was perfectly legal and genuine, but, in spite of that no action was taken for payment of salary of the petitioner. The petitioner lastly represented before respondents for payment of salary by his representation dated 16.03.2000. A three member Enquiry Committee constituted by the Deputy Commissioner, Hazaribagh headed by the Senior Additional Collector to conduct enquiry into the illegal/forged appointment of an employee. The said Committee identified certain persons including the petitioner as illegally appointed and accordingly submitted a report to the Deputy Commissioner, Hazaribagh and accordingly, the Deputy Commissioner, Hazaribagh withheld the salary of the employee vide memo no. 311 dated 5.3.2001 whose name appeared in illegal/forged list. The Respondent No. 4 vide memo no. 489 dated 31.03.2001 released the salary of the petitioner along with other employee in compliance of the order of the Deputy Commissioner, Hazaribagh vide memo no. 1058 dated 31.03.2001, whereby the earlier order vide memo no. 311 dated 5.3.2001 was withdrawn. However, the respondents paid salary to all employees whose name appears in the list of forged/illegal, but petitioner's salary has not been paid by the respondents-authorities. In spite of the above said order passed by the Higher Authorities, the respondents are sitting tight over the matter and the salary of the petitioner was not released, but similarly situated persons whose names also appears in list, their salary has been paid by the respondent authorities. Then the petitioner moved mover this Court by filing a writ application bearing W.P. (S) No. 5045 of 2003, praying therein, for direction upon the respondents to pay their salary due from Dec., 1997 till date considering the fact that the petitioner is continuously working under the respondents and he has every right to his salary as the respondent no. 5 without any rhymes and reason has withheld the same. The aforesaid writ application was finally heard on 14.10.2003, whereby this Court was pleased to dispose of this application in terms of the judgment dated 4.6.2001, passed in C.W.J.C. No. 1322 of 2000 with a direction to the respondents to release the admitted arrears of salary which has been withheld and the same shall be paid to the petitioner as expeditiously as possible and preferably within a period of two months from the date of receipt of copy of this order. After passing of the said order, petitioner filed a representation along with a copy of the order dated 14.10.2003 before the respondents. The respondents considering the order of this Court and from the representation of the petitioner as well as relevant records, directed the respondent no. 4 (Civil Surgeon-cum-Chief Medical Officer) to pay the admitted dues of the petitioner vide memo no. 1033 (5) dated 16.12.2003, but no salary was paid to the petitioner. The petitioner preferred contempt application bearing cont. (civil) No. 1100 of 2004 before this Court for non-compliance of the order dated 14.10.2003, passed by this Court in W.P. (S) No. 5045 of 2003 and during the pendency of the contempt petition respondents raising new issues with regard to the genuineness of the appointment letter of the petitioner and although no adverse report was submitted by the enquiry committee, against the petitioners, even then without issuing any show cause notice to the petitioner, terminated the service of the petitioner vide memo no. 1853, dated 24.10.2005 in a most illegal and arbitrary manner in flagrant violation of the principles of natural justice. After the appointment of the petitioner, he is continuously working under the respondents without hindrance, petitioner was engaged for the general election duty in the year 1998 and other duties like Leprosy, Malaria, Pulse polio and other several programme. The appointment of the petitioner was held to be illegal without verifying the relevant records which is evident from the fact that the respondent no. 4 in his letter no. 1890 dated 27.10.2005 has admitted himself that the issue register for the said period is not available in the office and in that view of the matter, when the appointment of the petitioner could not be verified from the relevant record. It was incumbent upon the respondents to give show cause notice to the petitioner before passing the impugned order of termination on the ground of illegal appointment. The aforesaid termination order dated 24.10.2005 was subsequently modified by the respondent no. 4 through letter no. 2113 dated 02.12.2005 to the extent that the petitioner is not entitled for any monetary benefits, just to deny the right of full claim of the petitioner for payment of salary in terms of the judgment dated 14.10.2003, passed by this Court in W.P. (S) No. 5045 of 2003. The aforesaid contempt petition was heard and disposed of on 16.02.2005 by dropping the contempt proceeding. Left with no other efficacious, alternative and speedy remedy, the petitioner has been constrained to approach this Court invoking the extraordinary jurisdiction of this Court under article 226 of the Constitution of India for redressal of his grievances.

(3.) Per contra Counter affidavit has been filed on behalf of the respondent no. 5, repelling the contentions made in the writ application. It has been inter alia, submitted in the counter affidavit, that the prayer made by the petitioner is not tenable in the eye of law and in the facts and circumstances of the case. It has been further stated in the counter affidavit that the enquiry was conducted by the three members committee headed by Senior Additional Collector and the said Committee made enquiry of those persons who were appointed after 01.01.1980. The Committee identified 32 persons as illegal appointees out of 439 persons. In the above mentioned list of 322 persons, the petitioner was not in the list of illegally appointed persons as because his details of appointment was not available in the office of the P.H.C., Mandu, Hazaribagh at that time. Subsequently, a letter issued by the Chief Malariya Officer, Bihar, Patna vide letter no. 5358 dated 10.05.2002 to the Medical Officer, In-charge, P.H.C., Mandu, Hazaribagh, stating specifically that no such alleged appointment letters were ever issued by his office. After receipt of letter dated 10.05.2002 from the Chief Malaria Officer, Bihar, Patna, the In-charge Medical Officer, Mandu, Hazaribagh wrote a letter to the Civil Surgeon-cum-Chief Medical officer, Hazaribagh vide letter no. 212, dated 17.05.2002 for necessary instruction and action against those petitioners. The petitioner has earlier moved before this Court in W.P. (S) No. 5045 of 2003 and this Court disposed of the said writ petition with a direction to the respondents to decide the claim of the petitioner and pay the admitted dues. The Secretary has directed the Civil Surgeon, Hazaribagh to inquire the matter and take decision on petitioner forged, fabricated and illegal appointment and also the appointment letter signature of the Civil Surgeon was found forged and this Court after considering the same dropped the contempt proceeding against the petitioner in Cont. Case (Civil) No. 1100 of 2004 vide order dated 01.09.2006.