Naresh Kumar Sinha vs The State Of Bihar

2025 INSC 814 REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2025 (Arising out of SLP (C) No. 8840 of 2022)

NARESH KUMAR SINHA APPELLANT (S)

VERSUS

STATE OF BIHAR & ORS. RESPONDENT(S)

J U D G M E N T

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

Signature Not Verified service of appellant had been declined. Digitally signed by NIDHI AHUJA Date: 2025.07.10 17:09:41 IST Reason:

3) The facts shorn of details are that in furtherance

1 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

2 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.

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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.

4 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 appellant and one more were also found

to be transferred. In the said context, dispatch

register was examined, but the same was not tallied.

As per the directions of the High Court, when enquiry

was conducted, the original file of the appointment

was not made available and only a part of file

relating to transfer was produced before the

Principal Secretary. Based on this, it was said that

the order of appointment, if any, dispatched along

with transfer orders, cannot be recognized as valid.

Hence, any interference in the order of termination

is not warranted.

7) In the impugned judgment, the order of learned

Single Judge was maintained, refusing to interfere

with the order of termination of appellant, by merely

relying upon the report submitted by the Principal

5 Secretary, Human Resources Development Department. As

per the said report, it was specified that the

appointment ought to be issued at the directorate

level and not at the deputy director/DDHRD level. It

is also said that the dispatch number tallies with

the register to dispatch the transfer order, and not

with the register to dispatch the appointment order,

therefore, the appointment appears to be forged. With

these allegations, it is said the appointment of

appellant was forged and fabricated, therefore,

principle of natural justice would not attract.

8) From the proceedings of this case, it appears

that after filing of counter affidavit and rejoinder,

with an intent to lift the veil on the allegations,

vide order dated 22.01.2024, a direction to produce

the original records pertaining to the appointment

and working of the appellant was issued. Even after

granting repeated opportunities, respondents have not

produced the record. Later, vide order dated

12.02.2025, while granting further time, this Court

observed as under:

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“In the facts of the case, we deem it appropriate that the record be traced and produced. In the interest of justice, we grant six weeks’ further time to produce the record failing which drawing adverse inference, appropriate orders will be passed.”

In reference to the above order, during hearing,

learned counsel of the State submitted that the record

is not traceable, as such the Court may proceed in

the matter.

9) After having heard learned counsel for the

parties and on perusal of the counter affidavit, it

is luculent that the respondents have not disputed

the issuance of the advertisement, in furtherance to

which the 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, later, transferred to Devipad Choudhary

Shaheed Asmarak (Millar) School and other schools

where he served for more than a decade. Surprisingly,

after serving for more than 16 years, a show cause

notice dated 19.09.2005 was issued questioning the

genuineness of his appointment order. On him filing

7 a reply, without holding any enquiry into the

allegations of fraud and sans the procedure as

prescribed, the service of the appellant was

terminated which led to the present litigation.

10) After bestowing our consideration to the facts,

it is clear that the appointment of appellant was in

furtherance to the advertisement published in

Aryabrata newspaper dated 22.06.1981 and the order

was issued on 24.06.1989 by the Government of Bihar,

Human Resource Development Department with signature

of Additional Director and its communication was made

by the DDHRD. The appellant was permitted to join,

and later he was transferred at different places. At

the time of issuing show cause notice, he was posted

as clerk at Parvati Higher Secondary School, Bikram,

Patna and while passing the order of termination, he

was posted as clerk at Urehan Girls Higher Secondary

School, Bihta, Patna. The show cause notice and the

order of termination were initiated from the office

of the District Education Officer, Patna and by that

time he had served the department for more than 16

8 years.

11) Further, it is noted that the show cause notice

was issued in reference to L.P.A. No. 527/05 and

letter No. 769 dated 23.07.2005 of Director,

Secondary Education, Bihar, Patna. The context of the

above referred LPA and the letter has not been placed

for perusal. In this show cause notice, an explanation

was sought from appellant based on information

furnished by the DDHRD regarding non-issuance of the

appointment from the directorate, that why he should

not be terminated from the service. On furnishing the

explanation on 27.09.2005, the order of termination

was passed inter-alia stating that the appointment of

the appellant was issued by the DDHRD and the

appointment has not been issued from the secretariat.

In addition to referring the office letter, it was

said the directorate has not issued the appointment

order, so it is forged by the appellant. In the order

of termination, the directions of the department’s

letter No. 17127 dated 12.06.1981 has also been

referred whereby it is admitted that appointment of

Class-III posts can be made at the district level

9 following the directions contained in letter No. 3/R-

1-103/73-7605 and 16440 dated 02.12.1980 of the

Department of Personnel and Administrative Reforms.

12) On analyzing all those documents, the reasons of

termination as mentioned in the order, and the

averments made in counter affidavit, it is clear that

appointment order was issued by Government of Bihar,

Human Resource Development Department, and signed by

Additional Director and not by DDHRD. Thus, on the

face of it, first reason assigned in the order of

termination that the appointment was issued by DDHRD

is incorrect. Moreover, in reference to the letter

No. 994 dated 08.09.2005 of DDHRD, it is said that

the appointment has not been issued at the secretariat

level which is not the defence taken in the counter

affidavit. Further, references made to directions

contained in the departmental letters dated

12.06.1981 and 02.12.1980 are also not germane to the

issue, which merely prescribe that the appointment of

Class-III post can be made at district level,

following the procedure as specified therein. In the

10 counter affidavit filed, it has not been stated that

the appointment of the appellant was not made after

following due process of law. From the above

discussions, the reasons assigned in the order of

termination are factually incorrect and based on

extraneous consideration which cannot be accepted.

13) In this regard, stand taken in the counter

affidavit that appointment was issued by the DDHRD

and not from the directorate is not correct. The

perusal of appointment letter clearly indicates that

it was issued by the Government of Bihar, Human

Resource Development Department and signed by the

Additional Director, meaning thereby that the

appointment has been issued either at directorate

level or at Government level and not at the level of

DDHRD. Therefore, findings of the High Court on this

issue are contrary to the record per se illegal.

14) In addition to the above, it is to observe that

order of appointment issued from the office of the

Government of Bihar/directorate cannot be nullified

by an order of the District Education Officer, merely

11 by issuing a show cause notice and without following

any procedure.

15) Since the plea of fraud taken by the respondents

has been accepted by the High Court in the order

impugned, the foundation of the said plea requires

consideration. The show cause notice memo dated

19.09.2005 is in reference to L.P.A. No. 527/05 and

letter No. 769 dated 23.07.2005. As per the contents

of the said memo, District Education Officer vide

letter No. 1126 dated 31.08.2005 sought some

information from the DDHRD which was furnished vide

letter no. 994 dated 08.09.2005 indicating that the

appointment memo No. 365 dated 24.06.1989 (wrongly

mentioned as dated 29.06.1989) was not issued from

the directorate. The stand taken before the High Court

and in the report sought is that the said record is

not traceable. This is not the stand of the government

that selection and appointment has not taken place,

further no record of such selection is available. In

such case where the record is not traceable, it would

not ipso facto make the appointment forged or

fabricated. As discussed in para 13, the appointment

12 order dated 24.06.1989 was issued at

Government/Directorate level, therefore,

correspondence of the DDHRD for non-issuance of the

memo of appointment without denying the process of

selection and existence of appointment order, is of

no help.

16) The termination order was challenged in writ

petition before the High Court in 2006, which was

decided in 2018. During the pendency of the writ

petition, directions were issued on 27.07.2011 to

place the record regarding appointment. In

furtherance of which, only a report was submitted.

The said report merely refers to the correspondence

of the DDHRD as referred in the show cause memo. On

filing LPA, the report produced pursuant to the order

dated 27.07.2011 has been referred. It is a matter of

prudence that when the allegation of forgery or fraud

has been made by the 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, in particular when such

13 appointment was made in furtherance to an

advertisement, and while terminating the services, it

is said that order of appointment was issued by

incompetent authority, i.e., the DDHRD.

17) Since the termination is based on allegation of

fraud which is accepted by the High Court, it is

necessary to refer when such allegation of fraud can

be substantiated. In this regard, we have to see what

is fraud. As per the Advance Law Lexicon, 3rd Edition

2005 by P. Ramanatha Aiyar, “fraud” means and includes

any of the following acts committed by a party to a

contract, or with his connivance, or by his agent,

with intent to deceive another party thereto or his

agent, or to induce him to enter into the contract:-

(1) the suggestion, as a fact, of that which is not

true, by one who does not believe it to be true; (2)

the active concealment of a fact by one having

knowledge or belief of the fact; (3) a promise made

without any intention of performing it; (4) any other

act fitted to deceive; (5) any such act or omission

as the law specially declares to be fraudulent.

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18) In the facts of the present case as discussed

above, no pleading or foundation which includes any

of the ingredients of fraud has been put forth or

substantiated. In the case of Lazarus Estates Ltd.

Vs. Beasley: (1956) 1 QB 702, the impact of fraud and

its importance has been discussed. Denning, L.J. has

stated as under:

“…No court in this land will allow a person

to keep an advantage which he has obtained by

fraud. No judgment of a court, no order of a

Minister, can be allowed to stand if it has

been obtained by fraud. Fraud unravels

everything. The court is careful not to find

fraud unless it is distinctly pleaded and

proved; but once it is proved, it vitiates

judgments, contracts and all transactions

whatsoever…”

19) This Court has considered the said observations

in the case of Ram Chandra Singh Vs. Savitri Devi and

Others: (2003) 8 SCC 319, wherein the court discussed

what would constitute fraud:

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“…Fraud is a conduct either by letter or

words, which induces the other person or

authority to take a definite determinative

stand as a response to the conduct of the

former either by word or letter.”

20) In the case of Derry v Peek: (1889) 14 AC 337,

as well, the House of Lords observed that in case of

fraud, actual fraud on part of person must be proved.

It will be said to be proved when it is shown that

any false representation has been made knowingly, or

without belief in its truth, or recklessly, without

caring about its truthfulness or falsity. In this

regard, 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.

21) As discussed in paras 11, 12, 13, 14 and 15

above, any pleading laying any foundation of alleged

16 fraud specifying any of the ingredients of fraud has

not been established. It is trite to say that without

any allegation of fraud, merely using word fraud is

not sufficient. In addition, this Court has taken

care to understand whether the allegation of “fraud”

is discernible from the record or not. For effective

adjudication, the original records pertaining to

appointment and working of appellant were called on

22.01.2024 within a period of three weeks. The

government sought more time to produce the said record

on 16.02.2024 but they were not produced. However, on

12.02.2025 while granting last opportunity to produce

the record, it was observed that failure to produce

the records may result in drawing of adverse

inference, and appropriate orders will be passed.

Even then, no records were placed before us for

perusal. It is to observe that direction in this

regard was also issued by the learned Single Judge of

the High Court on 27.07.2011 but except the report of

Principal Secretary and affidavit, nothing was

produced. In the cases where mere allegation of fraud

has been made without any foundation, and then the

17 records have been called by the Court to assess such

allegations, it is the earnest duty of the Head of

the Department to produce the same for perusal.

Otherwise in the facts, it was incumbent upon him to

conduct an internal enquiry and to find out whether

the process of selection was carried out or not. It

was also the duty of the Head of the Department to

place such record before the court. In the present

case, if the said record was not traceable, then it

is the duty of the Department to identify who is

responsible for misplacing such record, and an

enquiry in this regard ought to have been conducted

against the defaulting person and report in that

regard should have been placed. In absence thereof,

mere plea of non-traceability of the record is

insufficient. Thus, despite granting multiple

opportunities, which resulted in non-production of

the record, in the above facts, we are constrained to

draw adverse inference against the respondents.

22) In view of the above, in absence of any

foundation of fraud in the pleading or in the counter

18 affidavit, we are not inclined to accept such plea of

fraud. Moreover, the reason of termination as

mentioned in the order impugned is also contrary to

the documents placed on record. This is a case wherein

after appointment the appellant has worked for more

than 16 years regularly and was regularly paid salary

by the department, which is a fact. As such, he has

acquired the status of permanent employee.

Thereafter, such issuance of show cause notice by

merely referring to one LPA and the correspondence of

the department regarding non-issuance of appointment

order is improper. Because, a mere correspondence

stating non-issuance is not sufficient to prove an

allegation of fraud and warrant termination from

service. In our view, mere bald statement that the

appointment was based on forged document or on fraud

is not sufficient. In case after such a long time of

service, if the department was of the opinion that

the order of appointment is not available on record,

an enquiry should have been conducted for looking

into the alleged forgery in issuance of the

appointment order. In absence of any such enquiry,

19 such allegations of fraud and fabrication leading to

termination are unjustified.

23) As per the discussion made hereinabove, in the

facts and circumstances, an inescapable conclusion is

reached that the order of termination is based on a

reasoning which is per se untenable on fact and

record. The allegation of fraud has not been pleaded

and substantiated. In absence of holding any enquiry

of such allegation, the order of termination is liable

to be quashed. The findings recorded by the learned

Single Judge and the Division Bench are also without

due consideration of the above facts and are not based

on sound reasoning, hence, liable to be set aside.

24) Accordingly, we allow this appeal and set aside

the orders passed by the High Court and quash the

order of termination. Appellant is directed to be

reinstated in service with back wages to the extent

of 50% from the date of termination till his

reinstatement. The appellant would also be entitled

to all the consequential benefits. In light of the

facts, we leave it open to the respondents to take

20 proper recourse, if any, against the appellant

following the due process of law.

25) Pending application, if any, shall stand

disposed of.

…………………………………………………………, J.

[ J.K. MAHESHWARI ]

…………………………………………………………, J.

[ ARAVIND KUMAR ]

New Delhi;

April 02, 2025.

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