- (1.) This Special Appeal has been filed against the judgment dated 9 April 2013 of a learned Judge of this Court by which Writ Petition No. 17742 of 2009 that was filed by the sole respondent in this Special Appeal to assail the orders rejecting the representations, was allowed and a direction was issued to the respondents for giving light duty, as was advised by the Medical Board, to the writ petitioner. The writ petitioner-Durvijay Singh had raised a grievance that though he was working as a Warder in District Jail at Gorakhpur, he was not being paid salary from 13 December 2007. Writ Petition No. 11810 of 2008 that was filed by him for claiming the aforesaid relief was dismissed by a learned Judge of this Court on 7 March 2008 for the reason that a second petition for the same cause of action would not be maintainable and also for the reason that a statement had made by the learned Standing Counsel that the writ petitioner had obtained employment on the basis of a fake appointment letter and an enquiry was pending before the CBCID. In the Special Appeal that was filed by Durvijay Singh to assail this order, a statement was made on behalf of the writ petitioner that he had filed a representation before the Superintendent of District Jail on 7 January 2008 in regard to the grievance that was made in the writ petition. The judgment of the learned Judge was substituted by the Division Bench by directing the respondents to decide the representation. The writ petitioner filed a comprehensive representation on 22 May 2008 which was rejected by the Senior Superintendent of District Jail, Gorakhpur by order dated 4 June 2008. This order was assailed in Writ Petition No. 30630 of 2008, which petition was dismissed on the ground that the writ petitioner had an alternative remedy. The writ petitioner then filed a representation before the Inspector General (Jail) on 13 August 2008. This representation was transferred to the Deputy Inspector General (Prison) and was ultimately rejected by order dated 26 September 2008. These orders dated 4 June 2008 and 26 September 2008 rejecting the representations filed by the writ petitioner were assailed in Writ Petition No. 17742 of 2009, which petition has been allowed by the impugned judgment.
(2.) The writ petitioner had alleged that he had been appointed as a Warder by order dated 24 December 1986 at District Jail, Fatehgarh and posted as a Warder at Sampurnanand Shivir, Sitarganj on 7 January 1987 from where he was transferred to Central Jail at Varanasi on 22 March 1990, then transferred to District Jail, Basti on 24 March 1990 and ultimately transferred to District Jail at Gorakhpur on 29 April 1995. Three Warders namely, Shatrujeet Shahi, Santosh Kumar Singh and Umakant, at the time of joining at District Jail at Gorakhpur, were asked to write applications by the Jailor but as they could not even write the applications, inquiries were made and thereafter on 31 May 2007, a First Information Report under Sections 419, 420, 467 and 471 of the Indian Penal Code was lodged at Police Station Gorakhpur which was registered as Case Crime No. 366 of 2007 against these persons for seeking appointments on the basis of forged orders. Inquiries were also made against other Warders posted at Gorakhpur regarding their appointments/postings. A letter dated 1 June 2007 was sent to the Appointing Authority of the petitioner mentioned in the service book, namely the Senior Superintendent Central Jail, Fatehgarh, seeking information regarding the appointment order of the petitioner. In reply, the Senior Superintendent, Fatehgarh sent a communication dated 2 June 2007 that the writ petitioner and 13 other persons, who were working in the Central Jail, Gorakhpur as Warders, had never been appointed in the Central Jail, Fatehgarh. In the appointment order and the service book of the writ petitioner, it was mentioned that he had joined as a Warder on 7 January 1987 at Sampurnanand Shivir at Sitarganj and that he had been granted an annual increment while he was working from 7 January 1987 to 22 March 1990 at that place. Information was, therefore, also sought from the Senior Superintendent, Sampurnanand Shivir at Sitarganj regarding this fact. In response thereto, by letter a dated 1 September 2007, information was provided that the writ petitioner had never joined as a Warder nor was he ever posted over there. On further inquiries, it was found that the writ petitioner had submitted forged documents regarding joining and working as a Warder and the GPF passbook, LPC, service book and the appointment order were all forged documents. In fact, there were 35 other Warders who had submitted forged documents. A First Information Report was, therefore, lodged against the writ petitioner under Sections 419, 420, 467 and 471 of the Indian Penal Code. It is stated that when these facts came to the notice of the authorities, the writ petitioner and other Warders, whose appointments were found to be forged, attacked the officer at his residence in the night of 12/13 June 2007 and bombs were also thrown as a result of which another First Information Report under Section 307 of the Indian Penal Code was also lodged which was registered as Case Crime No. 402 of 2007.
(3.) It is on a consideration of the aforesaid facts that the first representation filed by the writ petitioner was rejected by the Senior Superintendent by order dated 4 June 2008. The subsequent representation filed pursuant to the order dated 3 July 2008 passed in Writ Petition No. 30630 of 2008 was also rejected by the Deputy Inspector General (Prison) by order dated 27 September 2008. These orders were assailed in Writ Petition No. 17742 of 2009. This petition was allowed by the learned Judge on 9 April 2013 with the following observations:-- "Thus from the documents on record, it will be seen that even when the case was being contested before the learned Single Judge in writ petition No. 26390 of 2003, which was disposed of by order dated 26.4.2005, it was never the case of the respondents that the petitioner had obtained appointment by forged documents. Even in the Special Appeal no such objection was taken by the respondents. The Division Bench had allowed the Special Appeal with a direction to the respondents to consider the representation of the petitioner regarding his joining and to pay his salary as he had suffered paralysis and had become disabled. The Medical Board had also expressed the view that heavy physical work should not be taken from the petitioner and only light duty should be taken from the petitioner. Learned Single Judge while deciding the writ petition No. 26390 of 2003 had also directed that the petitioner shall be immediately taken back on duty and given light physical work as opined by the Medical Board. Therefore, the question that the very appointment of the petitioner was obtained by practising fraud was never taken before any Court. This question has been raised for the first time in the impugned orders dated 4.6.2008 and 26.9.2008 while rejecting the representations of the petitioner for being taken back on duty. Even if it is assumed that the appointment of the petitioner was obtained by practising fraud his services should not have been terminated without holding proper departmental enquiry giving the petitioner full and adequate opportunity to defend himself. This has not been done. Therefore, the impugned orders dated 26.9.2008 and 4.6.2008 are not sustainable in law and are accordingly quashed. The writ petition is allowed. The respondents are directed to take a decision for giving the petitioner light duty as advised by the Medical Board. The decision in this regard will be taken within a period of one month from the date a certified copy of this order is received by the Competent Authority.";