Pramath Patnaik, J. - (1.) In the accompanied writ application, the prayer has been made for quashing the order dated 16.02.2013 issued by the respondent no.2 pertaining to dismissal of the petitioner from services and for direction commanding the respondents to forthwith reinstate in services alongwith all consequential benefits.
(2.) The factual matrix are depicted in the writ application, in a nutshell is that in pursuance to an advertisement for appointment of Constable in the year, 1983, the petitioner submitted his application and after undergoing process of selection, the petitioner was declared successful in all physical examination. But with respect to his height, since height of the petitioner was 167 Cms. and the minimum requirement of the height was 165 Cms. but the minimum height of the selected candidates was 182 Cms. and hence, the request was made by mother of the petitioner for relaxation in the height from the then Director General-cum-Inspector General of Police, Bihar and on receipt of the said application, the Director General-cum-Inspector General of Police, Bihar on sympathetical consideration issued direction to the competent authority to give relaxation in the height of the petitioner on humanitarian ground. Thereafter, the petitioner was offered his appointment letter on 25.05.1999, which would be apparent from the true copy of the appointment letter as contained and communicated to the petitioner vide covering letter dated 05.03.2011. Thereafter, the petitioner had given his joining there in the district of Hazaribagh. From 1999 till 19.04.2003 the petitioner continued in the district of Hazaribagh thereafter, he was transferred to Jamshedpur vide memo dated 19.04.2003. On communication vide memo dated 05.03.2011 issued by the Inspector General of Police (Headquarter), Jharkhand to the mother of the petitioner has been made intimating the rejection for application dated 13.12.2010 for appointment of her son Kaushalendra Kumar on the ground of suppression all material on facts as has been held by the Inquiry Committee. In the inquiry, it has surfaced that the appointment has been obtained by making false statement and on the basis of forged documents i.e. on the basis of the facts that father of the petitioner has retired on medical unfitness ground and as such the respondent authority issued the order of suspension as contained in memo dated 31.03.2011 and the decision was taken by the department to initiate a departmental proceeding for forthwith removing the petitioner from services. In pursuance to direction dated 05.03.2011, the memorandum of charge has been served on the petitioner on the allegation that the petitioner has got appointment by way of misleading the department as evident from Annexure- 10 and 11 to the writ petition. In the inquiry proceeding, the petitioner appeared and demanded certain documents. On the basis of which, the charge has been framed. The inquiry officer submitted the inquiry report before the respondent no.2 who is the disciplinary authority and in the inquiry report, opinion has been given that in spite of repeated direction given to the witnesses to prove the charges and in spite of specific direction to the presenting officer to provide the relevant documents, none of the witnesses has turned up in support proving the charge. Since, the entire incidence is related with the Chatra District Police Force or to the State of Bihar, hence the entire file is being returned. The copy of the inquiry report was supplied to the petitioner. After perusal of the inquiry report vide Annexure-10 to the writ petition it appears that respondent no.2 who is the disciplinary authority but instead of passing the final order, issued communication addressed to the respondent no.3 requesting him to initiate departmental proceeding afresh as per Annexure-13 to the writ petition. When the record was transmitted by respondent no.2 to respondent no.3, the petitioner challenged the same in W.P.(S) No.789 of 2012 which was disposed of on 20.12.2012 vide Annexure-2 to the writ petition. Thereafter, the petitioner has been served with a copy of the communication dated 16.04.2012 for giving his final reply. Thereafter, show cause notice was issued on 13.10.2012 to give his reply within 15 days failing which it would be presumed that petitioner has nothing to say in his defence and the department will be constrained to pass final order as per Annexure-15 to the writ petition. Final order dated 16.02.2013, the order of dismissal has been passed against the petitioner on the ground that the inquiry officer found the charges proved against the petitioner as evident from Annexure-18 to the writ petition. Being aggrieved by and dissatisfied with the impugned order dated 16.02.2013 vide Annexure-18, the writ petitioner left with no other alternative, efficacious and speedy remedy has knocked the door of this Court under Article 226 of the Constitution of India for redressal of his grievance.
(3.) Learned counsel for the petitioner has submitted with vehemence that the impugned order of punishment has been inflicted on the basis of finding conducted by the inquiry officer which is inconclusive by which the inquiry officer has relinquished himself from conducting inquiry and the inquiry report filed by the respondent no.2 who has returned to respondent no.3 for further inquiry. In the absence of any finding given by the inquiry officer, the impugned order vide Annexure-18 is not legally sustainable. Learned counsel for the petitioner further submits that the departmental inquiry has been initiated on the basis of one application allegedly sent by mother of the petitioner for the purpose of his appointment, application dated 13.12.2010, while the petitioner was already in service and was appointed on 25.05.1999. Apart from this, there was no complaint by any private person, on which the inquiry would have been initiated. It is highly improbable that if a person is already in service his mother would send a letter for compassionate appointment and that too after ten years of his appointment and the veracity of the letter has not been verified by the respondent authority. Moreover, mother of the petitioner has not been examined, therefore, from the very beginning enquiry seems to have been undertaken on a very illogical and under highly improbable circumstances. Learned counsel for the petitioner further submits that the entire case hinges on the misrepresentation by the time of appointment which is infact a misconduct that is required to be proved in law and procedure. Learned counsel for the petitioner has referred to the decisions in the case of Avtar Singh Vs. Union of India and others, 2016 8 SCC 471 more particularly paragraph no.33, the Hon'ble Apex Court has been pleased to hold that any appointment due to misrepresentation or fraud has to be vitiated, but a rider has been added saying that in case of confirmed appointees, a due departmental proceeding has to be conducted before reaching to a formal conclusion of misrepresentation, which is misconduct. Therefore, the provisions of the Article 311 of the Constitution has been made applicable to the confirmed employee and the same is applicable to the petitioner who was appointed in the year, 1999 and the proceeding was initiated in the year, 2011 after lapse of 13 years of his services.;