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2005 DIGILAW 809 (ALL)

PUSHPA PANDEY v. STATE OF UTTAR PRADESH

2005-04-28

PRADEEP KANT, R.P.YADAV

body2005
( 1 ) NOTICE on behalf of the opposite parties has been accepted by the learned Chief Standing counsel. ( 2 ) WITH the consent of the parties Counsel, this special appeal is being disposed of finally. ( 3 ) THE appellant, who was appointed as Angan Bari Karyakatri on 16. 8. 2003 is faced with an order of termination of her appointment/ engagement passed by the Bal Vikas Pariyojna adhikari on 19. 7. 2004. The reason for terminating the engagement of the appellant as Angan bari Karyakatri was the complaint made against her saying that her income certificate was forged. On the aforesaid complaint, an enquiry was conducted by Tehsildar Lambhua district sultanpur who on making the enquiry cancelled the income certificate of Pushpa Pandey and held that the income of the appellant was Rs. 2,960 per month which was above the poverty line. The order was passed by the Tehsildar on 23. 7. 2005. After cancellation of the certificate issued by the Tehsildar and the order passed by him holding that, the appellants income was not below the poverty line and it was above the poverty line, a show cause notice was issued to the appellant on 19. 12. 2003 requiring her to submit an explanation against the order passed by the tehsildar cancelling the income certificate in which her income was shown as Rs. 2,962/- per month which is equivalent to Rs. 35,544/- annually. The appellant submitted her reply on 22. 12. 2003 in which she clarified that her husband was also engaged as Shiksha Mitra from 18th september, 2002 to 20th May, 2003 and his total annual income was Rs. 18,177/- and on the date when the appellant applied for the income certificate, this was the total income of the family. The order passed by the Bal Vikas Pariyojna Adhikari terminating the engagement of the appellant does not take into consideration the submission made by the appellant but on the basis of the complaint and the report submitted by the Tehsildar, her appointment has been terminated. Aggrieved by the aforesaid order, the appellant preferred a writ petition, which has been dismissed summarily by the learned single Judge on 19. 1. 2005. Aggrieved by the aforesaid order, the appellant preferred a writ petition, which has been dismissed summarily by the learned single Judge on 19. 1. 2005. ( 4 ) LEARNED single Judge has observed that since on the basis of the enquiry conducted by the tehsildar with regard to the income of the appellant, it was found that the certificate submitted by her was fictitious and her income was as indicated in the impugned order and once it has been found on the basis of enquiry that the petitioner had submitted a fictitious certificate pertaining to her income and on the basis of the same she procured the appointment, it cannot be said that her appointment was fair and legal. Learned single Judge also held that there cannot be any dispute with regard to the law enunciated by the apex Court that the doctrine of fairness would apply where the person alleging the same has himself/herself acted in a fair and just manner and since the petitioner had obtained an income certificate which itself was found to be fictitious on the basis of an enquiry, the appointment which has been sought on the basis of such a fictitious document, cannot be allowed to stand on the plea of fairness. In respect of affording opportunity by Tehsildar while holding enquiry, the learned single Judge observed that it was a fact finding enquiry and no opportunity was required to be given to the petitioner/appellant. ( 5 ) WE have heard the learned Counsel for the appellant and the learned Counsel for the State Sri sudhir Pandey. It is no doubt true that a person, who does not come with clean hands to the court, is not entitled for any relief. It also cannot be disputed that if a person obtains an appointment or procures any privilege on a forged or fictitious document, he or she would not be entitled to raise the grievance due to the fraud played by him/her when it comes to the knowledge of the authorities. In the instant case, the appellant had shown her income below the poverty line. In the instant case, the appellant had shown her income below the poverty line. It appears that a complaint was made by Smt. Mayawati and the Tehsildar conducted an enquiry but the Tehsildar did not find it appropriate to associate the appellant in that enquiry, though it was the determination of the income of the appellant which was the object and subject matter of such enquiry. It is not on record nor it has been shown to the appellant by the Tehsildar or by the appointing authority that what material was considered by the Tehsildar in holding that the income of the appellant was not that which was disclosed by her or in any case it was over and above the income which puts her below the poverty line and in what manner the income of Rs. 2,962/- per month was calculated. Had an opportunity been given by the tehsildar to the appellant, the appellant would not have only disclosed her source of income but would have also been confronted with the certificate which had been issued in her favour. The tehsildar admittedly did not give any notice or opportunity of hearing to the appellant and of his own or on the application given by the other persons, may be Smt. Mayawati or any other person, such a finding has been recorded by him. The rules of natural justice require that when an order is to be passed which has some civil consequences or adverse affect then unless otherwise it is not practically possible to do so, opportunity of hearing has to be afforded to the person concerned. ( 6 ) ISSUANCE of show cause notice to the appellant after cancellation of the income certificate by the Tehsildar and the order being passed by him on 28. 8. 2004 saying that she does not fall below the poverty line, would not meet the requirement of natural justice. The appellant should have been given an opportunity to put her defence before cancelling her income certificate and passing the consequential order dated 28. 8. 2004 by the Tehsildar. The appellants income certificate was first cancelled and then she was required to show cause against such an order. The appellant should have been given an opportunity to put her defence before cancelling her income certificate and passing the consequential order dated 28. 8. 2004 by the Tehsildar. The appellants income certificate was first cancelled and then she was required to show cause against such an order. Even in these circumstances, it would be appropriate to clarify that if an opportunity had to be given to the appellant for putting her claim against the order passed by the Tehsildar, that would include re-determination or reconsideration or full consideration by the appointing authority of the explanation submitted by the appellant and in such a situation, the appointing authority was under a legal obligation to test the veracity of the averments made in the explanation submitted by the appellant in support of her submission that her income was below the poverty line but the appointing authority has failed to do so, also. This fact is reflected from the impugned order itself. The impugned order does not say that the explanation given by the appellant was not found to be correct but merely on the basis of the order passed by the Tehsildar on the complaint of Smt. Mayawati, the impugned order of punishment has been passed. This, in our opinion, is clearly in violation of principles of natural justice and the order cannot be said to have been passed after giving due opportunity to the appellant. ( 7 ) THE plea that the appellant has not come with clean hands, as she has submitted a forged income certificate obtained by her has to be considered in the light of the meaning of the word forged. A forged document is a document, which is a fraudulent imitation or copy, or which has not been prepared by the authority or person authorised to do so whereas an incorrect certificate cannot be said to be a forged document. From the facts on record, it is clear that the Tehsildar did not dispute anywhere that the certificate of income which was filed by the appellant was not prepared by the Tehsildar or it was a forged document. As a matter of fact, it was a case where on the report of Smt. Mayawati the Tehsildar found that the income was not correctly shown in the certificate. As a matter of fact, it was a case where on the report of Smt. Mayawati the Tehsildar found that the income was not correctly shown in the certificate. In this view of the matter, it cannot be said that the appellant has committed any forgery and has placed a forged certificate. ( 8 ) IN this view of the matter, we find that the order of termination of the appointment/engagement of the appellant as Angan Bari Karyakatri cannot be sustained, the same having been passed in violation of principles of natural justice. The impugned order dated 19. 7. 2004 contained in Annexure-6 to this appeal is, therefore, liable to be quashed and is hereby quashed. The order passed by the learned single Judge is also hereby quashed. The matter is remanded to the appointing authority to re-consider the matter after giving full opportunity to the appellant. Till such decision is taken afresh, the appellants engagement shall remain in force and she will be allowed to continue as such and shall also be paid honorarium. ( 9 ) THE appeal is allowed. No order as to costs. . .