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IN THE HIGH COURT OF JHARKHAND AT RANCHI
SUJIT NARAYAN PRASAD, RAVI RANJAN, JJ.
Mithilesh Prasad - Appellant
Versus
The State of Jharkhand - Respondents
L.P.A. No.412 of 2018
Decided On : 28-01-2021
Constitution of India, 1950 - Article 226 - Indian Contract Act, 1872 - Section 17 - Working as Lab Technician - Salary by commission of fraud - It is further case of appellant/writ-petitioner that he became mentally ill and due to that reason he could not attend after leave and was under treatment since under Psychiatrist Institute of Medical Sciences Ranchi appellant/writ-petitioner after becoming medically fit for work after doctor’s advice submitted representation enclosing prescription of his treatment and requested to accept his joining so that he be able to perform his duty - But Civil Surgeon-cum-Chief Medical Officer neither allowed him to join duty nor took any decision in this regard - However his case was referred to Director-in-Chief Health Services Jharkhand Ranchi by Civil Surgeon-cum-Chief Medical Officer vide Letter No - Director-in-Chief Health Services Jharkhand Ranchi wrote a letter on Civil Surgeon for accepting joining of appellant writ-petitioner because Government has not followed procedure as prescribed in Law In light of aforesaid direction appellant/writ-petitioner had submitted representation before Civil Surgeon-cum-Chief Medical Officer requesting therein to allow him to join duty – Held, In United India Insurance court observed that fraud and justice never dwell it is a pristine maxim which has not lost temper over all these centuries - Similar view has been reiterated by this Court in of Haryana - In Ram Chandra Singh this Court held that “misrepresentation itself amounts to fraud - Thus ratio laid down by Apex Court in judgments referred hereinabove lays down that dishonesty should not be permitted to bear fruit and benefit those persons who have or misrepresented in such circumstances Court should not perpetuate fraud by entertaining petitions on their behalf - This Court on basis of aforesaid position of law as discussed above and considering fact of case in hand has found there from that it is admitted case of appellant/writ-petitioner that he has not produced appointment letter either before writ Court or before this court - Sole case is based upon order of confirmation question is that order of confirmation cannot be a substantive proof of appointment rather substantive proof appointment would be appointment letter issued by competent appointing authority confirmation in service is based upon services rendered after particular period therefore reliance placed by counsel for appellant/writ-petitioner on order of confirmation of his service cannot be said to be a conclusive proof of his appointment in absence of any appointment letter – Order according
JUDGMENT :
1. The matter has been heard through video conferencing with the consent of the learned counsel for the parties. They have no complaint about any audio and visual connectivity.
2. This is an appeal under Clause 10 of the Letters Patent directed against the order/judgment dated 10.05.2018 passed by the learned Single Judge of this Court in W.P.(S) No.5421 of 2016 whereby and whereunder the writ Court has refused to interfere in the order dated 09.11.2015 passed by the Director-in-Chief, Health Services, Jharkhand, Ranchi by which the prayer of the appellant/writ-petitioner for acceptance of his joining as Lab Technician at Blood Bank, Sadar Hospital, Giridih has been rejected.
3. The brief facts of the case which require to be enumerated reads as hereunder:
It is the case of the appellant/writ-petitioner that he was regularly working as Lab Technician with full satisfaction of all the concerned but he became ill and was unable to move anywhere and as such, he was on leave from 11.02.1994 to 18.02.1994, thereafter, he submitted application to the Superintendent, Sadar Hospital, Giridih on 19.02.1994 regarding extension of his leave till 15.03.1994.
It is the further case of the appellant/writ-petitioner that he became mentally ill and due to that reason he could not attend after leave and was under treatment since 11.02.1994 to 19.11.2008 under Dr. Ashok Prasad, Neuro Psychiatrist, Rajendra Institute of Medical Sciences, Ranchi. The appellant/writ-petitioner after becoming medically fit for work after doctor’s advice, submitted representation enclosing the prescription of his treatment and requested to accept his joining so that he be able to perform his duty. But the Civil Surgeon-cum-Chief Medical Officer, Giridih neither allowed him to join duty nor took any decision in this regard. However, his case was referred to the Director-in-Chief, Health Services, Jharkhand, Ranchi by the Civil Surgeon-cum-Chief Medical Officer, Giridih vide Letter No.285 dated 04.02.2010. The Director-in-Chief, Health Services, Jharkhand, Ranchi, wrote a letter on 04.05.2010 to the Civil Surgeon, Giridih for accepting the joining of the appellant/writ-petitioner because the Government has not followed the procedure as prescribed in Law. In the light of the aforesaid direction, the appellant/writ-petitioner had submitted representation before the Civil Surgeon-cum-Chief Medical Officer, Giridih requesting therein to allow him to join the duty. The Civil Surgeon-cum-Chief Medical Officer, Giridih had not given any response to the aforesaid representation, as such, one reminder was submitted on 03.09.2010 stating therein the grievances in detail. The appellant/writ-petitioner had submitted number of representations to the Civil Surgeon-cum-Chief Medical Officer, Giridih requesting him to allow him to join the duty, however, to no effect. The appellant/writ-petitioner having no option approached to this Court by filing a writ petition being W.P.(S) No.576 of 2015 which was disposed of on 06.07.2015 directing the authority to take decision on the representation filed by the appellant/writ-petitioner. In pursuance thereto, the respondents have taken decision by rejecting the claim of the appellant/writ-petitioner inter alia on the ground that the appellant/writ-petitioner was never appointed to the said post rather he, by committing fraud had inserted his name at serial No.48 claiming to be in the panel, basis upon which he had performed his duty from 08.04.1991 to 10.02.1994 and got salary by commission of fraud and hence, his representation had been rejected with a direction to recover the amount already paid by way of salary.
The aforesaid order was
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