1. Appointment of clerk following advertisement — Termination after sixteen years of service on allegations of forged appointment order — Challenge to termination order. (Para 2 , 3 , 10 )
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2025 Supreme(SC) 1034
SUPREME COURT OF INDIA
J.K. Maheshwari, Aravind Kumar, JJ.
Naresh Kumar Sinha – Appellant
Versus
State Of Bihar & Ors. – Respondents
Civil Appeal No. 4661 of 2025 (Arising out of SLP (C) No. 8840 of 2022)
Decided On : 02-04-2025
Advocates appeared:
For the Petitioner(s): Mr. Anurag Singh, Adv. Mr. Anil Kumar Mishra, AOR
For the Respondent(s): Mr. Manish Kumar, AOR
For the Petitioner(s): Mr. Anurag Singh, Adv. Mr. Anil Kumar Mishra, AOR
For the Respondent(s): Mr. Manish Kumar, AOR
IMPORTANT POINT
(1) Termination – Forged appointment – When allegation of forgery or fraud has been made by State Government, it must have some foundation – Mere correspondence of an officer alleging non-issuance of appointment memo is not enough to prove such fraud.
(2) Fraud – Without any allegation of fraud, merely using word fraud is not sufficient.
Headnote:
(A) Service Law – Termination – Forged appointment – Respondents have not disputed issuance of advertisement, in furtherance to which appellant was appointed – In absence of any specific denial, it may be concluded that appointment of appellant was after following the due process of law – On submitting joining, he was allowed to perform his duties and he had served Department for more than 16 years – Reasons assigned in order of termination are factually incorrect and based on extraneous consideration which cannot be accepted – When allegation of forgery or fraud has been made by State Government, it must have some foundation – Mere correspondence of an officer alleging non-issuance of appointment memo is not enough to prove such fraud – No pleading or foundation which includes any of ingredients of fraud has been put forth or substantiated – Mere bald statement that appointment was based on forged document or on fraud is not sufficient – Order of termination is based on a reasoning which is per se untenable on fact and record – Order of termination quashed – Appellant to be reinstated in service with 50% back wages, alongwith all consequential benefits – Appeal allowed. (Paras 10, 12, 13, 15, 16, 18, 22, 23 and 24)
(B) Fraud – Proof of – Without any allegation of fraud, merely using word fraud is not sufficient – Any false statement made carelessly and without reasonable ground for believing it to be true may be evidence of fraud – However, it does not mean that it would necessarily amount to fraud – Any statement made with honest belief in its truthfulness is not fraudulent and would not render the person liable for a fraudulent act. (Paras 20 and 21)
Facts of the case:
Appellant assails the order dated 17.05.2019 passed by Division Bench of High Court of Judicature at Patna dismissing Letters Patent Appeal No.379 of 2018. In the LPA, order passed in C.W.J.C. No. 15852 of 2006 dated 20.02.2018 was challenged wherein order of termination dated 21.11.2005, was in question. As such, by orders impugned, interference in the order of termination of service of appellant had been declined.
Findings of Court:
Findings recorded by Single Judge and Division Bench are also without due consideration of facts and are not based on sound reasoning, hence, liable to be set aside.
Result : Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. State contends appointment was forged and issued by incompetent authority — Fraud vitiates natural justice — Appellant challenges termination for lack of due process. (Para 4 , 6 )
3. Appointment order issued by competent authority — State failed to produce records — Adverse inference drawn — Termination without enquiry based on non-traceability of records is illegal. (Para 7 , 8 , 12 , 13 , 15 , 21 , 22 )
4. Fraud must be distinctly pleaded and proved — Mere bald allegations or missing records without a formal enquiry cannot justify termination of service. (Para 17 , 18 , 20 , 21 , 22 )
5. Appeal allowed — Termination order quashed — Reinstatement with fifty percent back wages and consequential benefits. (Para 24 )
6. What constitutes fraud in the context of employment termination?
Fraud involves acts committed with intent to deceive, such as suggesting something untrue as fact or active concealment. It must be distinctly pleaded and proved, as a mere bald statement of fraud is insufficient to justify termination. (Para 17 , 18 , 20 , 21 )
7. Does the non-traceability of official records automatically prove that an appointment was forged?
No. The non-traceability of records does not ipso facto make an appointment forged or fabricated. If records are missing, the department should conduct an internal enquiry to determine if the selection process was followed. (Para 15 , 21 , 22 )
8. Can a termination based on fraud be sustained without a formal enquiry?
No. Termination based on allegations of fraud and fabrication is unjustified if the department fails to conduct a proper enquiry to substantiate the forgery, especially after the employee has served for a significant period. (Para 9 , 21 , 22 )
9. What is the legal effect of a party's failure to produce records requested by the court?
When a party fails to produce original records despite multiple opportunities, the court may draw an adverse inference against that party, particularly when the records are essential to substantiate allegations of fraud. (Para 21 )
JUDGMENT :
J.K. MAHESHWARI, J.
1. Leave granted.
2. The appellant assails the order dated 17.05.2019 passed by the Division Bench of the High Court of Judicature at Patna dismissing the Letters Patent Appeal No.379 of 2018. In the LPA, the order passed in C.W.J.C. No. 15852 of 2006 dated 20.02.2018 was challenged wherein the order of termination dated 21.11.2005, was in question. As such, by the orders impugned, interference in the order of termination of service of appellant had been declined.
3. The facts shorn of details are that in furtherance to an advertisement dated 22.06.1981, appellant was appointed as clerk vide order dated 24.06.1989, and posted at S.M.T. High School, Vaishali, Bihar. He submitted his joining on 04.07.1989 which was initially resisted by headmaster but later he was allowed to join and he performed his duty. Thereafter, on transfer to other schools, he worked for more than one and a half decade. On 19.09.2005, the District Education Officer, Patna issued a show cause notice, alleging that his appointment was forged and vide order dated 21.11.2005, his services were terminated without following the due process of law. Appeal filed against such termination was also rejected vide order dated 13.10.2006.
4. Being dissatisfied, Writ Petition was filed which was dismissed. During pendency of the writ petition, learned Single Judge vide order dated 27.07.2011 sought report with respect to the genuineness of the appointment order. The same was filed along with an affidavit, inter alia, stating that the original file of appointment could not be traced, but the file relating to transfer of newly appointed clerks in 10+2 secondary schools has been traced out. It was said that the order of appointment was issued in violation of the terms of Circular No.16440 dated 02.12.1980 of the Personnel and Administrative Reforms Department. Learned Single Judge while dismissing the writ petition and relying on those averments held that the order of appointment could have been issued at the level of the Directorate and not at the level of Deputy Director, Human Resources Development Department (in short “DDHRD”). As such, appointment of the appellant was issued by an incompetent authority and was illegal. Further, with reference to dispatch number of the order, it was observed that the register was relating to transfer of clerks which also does not tally. Thus, the contention of appellant with respect to issuance of appointment by the same dispatch was not accepted, because it will not make the appointment of the appellant genuine. As such, learned Single Judge refused to interfere and dismissed the writ petition.
5. Aggrieved by such dismissal, the appellant filed the impugned LPA before the Division Bench, which was also dismissed relying on the same report and affidavit, wherein the Division Bench held that the appointment of appellant was not issued at the appropriate level by the Department, hence, found to be forged. Accordingly, the Division Bench maintained the order of learned Single Judge.
6. In the counter affidavit filed by the State, it is inter-alia stated that the DDHRD was incompetent to appoint Class III employees in the schools. Thus, when the order of appointment was not issued by the competent authority, appellant had illegally occupied the post and he cannot claim equity after committing such fraud. Further, in the case of fraud or forgery, plea of violation of the principle of natural justice is not tenable. It is said that the appellant and one Sanjay Kumar Sinha were said to be appointed by the then DDHRD issuing different orders of appointment dated 24.06.1989; however, while verifying, the Section Officer has denied issuance of such orders. On the said pretext, while examining the orders of transfers of 36 clerks, it was found that 12 were appointed before 02.10.1980, 2 were appointed on recommendation of Bihar Public Service Commission and 11 were appointed on compassionate ground. Remaining 11 including
