Summary
The Supreme Court quashed the 2005 termination of a school clerk in Bihar, appointed in 1989 pursuant to a public advertisement, on an unsubstantiated allegation that his appointment order was forged. The reasons in the termination order were contrary to the record, fraud had neither been pleaded with its ingredients nor enquired into, and the State's repeated failure to produce the appointment records warranted an adverse inference.
Issues
- Whether the termination of the appellant after sixteen years of service, on the ground that his appointment order was issued by an incompetent authority and was forged, was sustainable when the appointment order on record was issued by the Human Resource Development Department under the signature of the Additional Director.
- Whether a bare allegation of fraud or forgery, resting only on departmental correspondence that the appointment memo was not issued from the directorate and on non-traceability of the record, could justify termination without an enquiry.
- Whether an adverse inference should be drawn against the State for failing, despite repeated directions of the High Court and the Supreme Court, to produce the original records of the appellant's appointment and service.
Held
- The State never disputed the advertisement pursuant to which the appellant was appointed, and in the absence of a specific denial it may be concluded that his appointment followed due process; after sixteen years of service with regular salary he had acquired the status of a permanent employee, and his services were terminated on a show cause notice without any enquiry into the alleged fraud or the prescribed procedure. (¶¶ 9, 10, 22)
- The reasons assigned in the termination order were factually incorrect and based on extraneous considerations: the appointment order was issued by the Government of Bihar, Human Resource Development Department, under the signature of the Additional Director, i.e. at Government or directorate level, and not by the Deputy Director (DDHRD) as the order and the High Court assumed; the departmental letters relied upon merely prescribed that Class III appointments could be made at district level. The High Court's finding to the contrary was contrary to the record and per se illegal. (¶¶ 11, 12, 13)
- An appointment order issued from the office of the Government or the directorate cannot be nullified by a District Education Officer merely by issuing a show cause notice and without following any procedure. (¶ 14)
- Where the State does not deny that selection and appointment took place, the fact that the record is not traceable does not ipso facto render the appointment forged or fabricated; correspondence of an officer stating that the appointment memo was not issued is not enough to prove fraud, particularly where the appointment followed an advertisement. (¶¶ 15, 16)
- An allegation of fraud by the State must have some foundation and be distinctly pleaded and proved; merely using the word 'fraud' without pleading its ingredients (as understood in Lazarus Estates, Ram Chandra Singh v. Savitri Devi and Derry v. Peek) is not sufficient. A mere bald statement that an appointment was based on a forged document cannot justify termination, and if after long service the department found the appointment order missing it ought to have held an enquiry into the alleged forgery. (¶¶ 17, 18, 19, 20, 21, 22)
- When the State alleges fraud without foundation and the Court calls for the records, it is the earnest duty of the Head of the Department to produce them, or else to conduct an internal enquiry into whether the selection was carried out, identify who is responsible for misplacing the record and place a report before the Court; a mere plea of non-traceability is insufficient. The respondents' failure to produce the records despite repeated opportunities, including a final warning, constrained the Court to draw an adverse inference against them. (¶¶ 8, 21)
- The termination order rested on reasoning untenable on fact and record, fraud was neither pleaded nor substantiated, and no enquiry had been held; the termination and the orders of the Single Judge and Division Bench were therefore set aside, with liberty to the respondents to take proper recourse against the appellant following due process. (¶¶ 23, 24)
Result
Appeal allowed; orders of the High Court (Single Judge and Division Bench) set aside and the termination order dated 21.11.2005 quashed; appellant to be reinstated with 50% back wages from the date of termination till reinstatement and all consequential benefits; liberty to the respondents to take proper recourse against the appellant following due process of law; pending applications disposed of.