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IN THE HIGH COURT OF GAUHATI, (KOHIMA BENCH)
S. Hukato Swu, J.
A. Vivana and Ors. - Appellants
Versus
The State of Nagaland and Ors. - Respondents
W.P. (C.) No. 70 Of 2020
Decided On : 26-07-2021
Constitution of India, 1950 – Article 226, 300A, 311 – Health and Family Welfare – Criminal case – Power of high court to issue certain writs – Writ petition under Article 226 of Constitution for issuance of writ of mandamus or writ of certiorari for violation of fundamental rights guaranteed under Part-III of Constitution of India specially with respect to Article 300A and 311 of Constitution of India is filed by four petitioners – Held, State respondents have issued two termination orders against petitioner No. 4 which is not trustworthy – Certainly is proof of manipulation of records to disprivilege petitioner – Practice deserving rejection – Having observed its inconsistency in facts presented, this Court is unable to rely upon statement of State respondents – Court is of view that petitioners are entitled to be considered for reinstatement – Court is also not oblivious of fact that coordinate Bench of this Court has already given relief to similarly situated petitioners in W.P.(C) 157 (K) of 2015 as well as – There is no adverse finding against the appointment of the petitioner Nos. 1, 2 and 3 in Final Report of Vigilance Commission – This is sole basis of termination order – Allegation that appointment order of petitioner No. 4 is forged has not been proved, considering that it does not satisfy test of law – Petitioners are entitled to relief as prayed for – Writ petition disposed of.
JUDGMENT :
S. Hukato Swu, J.
1. The present writ petition under Article 226 of the Constitution for issuance of writ of mandamus or writ of certiorari for violation of the fundamental rights guaranteed under Part-III of the Constitution of India specially with respect to Article 300A and 311 of the Constitution of India is filed by the four petitioners herein who were appointed at different times by the Principal Director, Health and Family Welfare, Nagaland, Kohima,
2. Heard Mr. Joshua Sheqi assisted by Ms. Mika H Aye learned counsel for the petitioners as well as Mr. V. Zhimomi, learned Government Advocate for the State respondents.
3. The petitioner No. 1 was appointed by an Order dated 23-04-2008 under letter No. DHFW-3/117/CHOW/79-81 as Medical Attendant at Tokiye Sub-Centre in the scale pay of Rs. 2550-55-2660-80-3200/- P.M. plus all other admissible allowances. The petitioner No. 2 was appointed as Medical Attendant at Ghathashi P.H.C. by an Order dated 30-05-2008 in letter No. DHFW-3/117/MA/ZBTO/03-04 (Pt-I) in the scale pay of Rs. 2550-55-2660-3200/- P.M. plus all other admissible allowances. The petitioner No. 3 was appointed by an order dated 14-11-2008 by letter NO. DHFW-3/117/AYAH/ZBTO/VOL-1/79-84 while petitioner No. 4 was appointed by an order dated 23-03-2009 as Mali in C.H.C. Pughoboto by letter NO. DHFW-3/117/Mali/Zbto/Vol-1/79-81.
4. Sometimes in the year 2010, the department of Health and Family Welfare, Nagaland detected suspected appointments of employees under forged signatures against non-existent posts and the matter was investigated by the then Vigilance Commission, Directorate of Vigilance and Anti-Corruption Police, Nagaland, Kohima. All the petitioners named herein were suspected to be appointed by obtaining forged signatures and they were put under scrutiny. The petitioner No. 1 received pay till June, 2009 while the petitioner No. 2 and 3 received pay till 17-02-2020 and the petitioner No. 4 received pay till April, 2012. It is the case of the petitioners that they were all terminated by a common order dated 17-02-2020.
5. Learned counsel for the petitioners submits that the termination orders were based on the report of the Vigilance Commission Directorate of Vigilance and Anti-Corruption, Nagaland, Kohima which is dated 04-12-2014. He submits that there is no other document than the present one on the basis of which the petitioners have been terminated. For the sake of understanding, the letter of the Inspector General of Police and Directorate of Vigilance and Anti-Corruption Police, Nagaland, Kohima is reproduced below:-
DIRECTORATE OF VIGILANCE & ANTI CORRUPTION POLICE
NAGALAND : KOHIMA
No. RC-6/2011
Dated Kohima, the 4th Dec' 2014
To,
The Commissioner & Secretary to the Government of Nagaland, Health & Family Welfare Deptt. Kohima
Sub: Forwarding of Final Report.
Sir,
In inviting a reference to the subject cited above, I have the honour to forward the Final Report in connection with the investigation made without sanctioned posts and suspected signature of the authority in the Health & Family Welfare Department, Nagaland.
This is for favour of your kind and further necessary action please.
Kindly acknowledge receipt of the same.
Encl: As stated above
Yours faithfully,
(J.L. YADEN)
Inspector General of Police,
& Director
Vigilance & Anti Corruption Police,
Nagaland, Kohima
No. RC-6/2011
Dated Kohima, the 04th Dec. 2014
Copy to:-
1. The Principal Director, Health & Family Welfare Nagaland, Kohima. This is with reference to their letter No. DHFW-17/Combined Legal Case/2014/8550-52 dated 27/10/2014 (a copy of the Final Report is enclosed herewith
2. Office copy
(J.L. YADEN)
Inspector General of Police,
& Director
Vigilance & Anti Corruption Police,
Nagaland, Kohima"
6. Learned counsel for the petitioners submits that in the list enumerated in the final report, there is no mention of the petitioner Nos. 1,
The judgment emphasizes the importance of natural justice, arbitrary actions by state authorities, and justified delay in approaching the court.
The Court established that employees appointed on land ownership basis have a right to reinstatement when their terminations are found unjustified, reinforcing principles of equality in public employ....
The obligation to hold an enquiry before imposition of major punishment and the principles of natural justice must be adhered to in cases of termination of service.
The main legal point established in the judgment is the void ab-initio nature of the appointment based on forged and fabricated documents, leading to the termination of the petitioner's services.
An appointment obtained through fraudulent means is null and void, and no departmental inquiry is required to terminate such service.
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