JUDGMENT Hon’ble Abhinava Upadhya, J.—Special Appeal No. 1470 of 2007(Sushil Kumar Pandey v. State of U.P. and others) and Special Appeal No. 1557 of 2007(Smt. Saroja Pandey v. The State Of U.P. and others) which are before us for consideration, have been filed challenging the common judgment of the learned Single Judge by which Civil Misc.Writ Petition Nos. 28050 of 2006 and 29029 of 2004 were decided together and both the writ petitions filed by the appellants were dismissed. 2. The appellants are son and mother respectively. 3. The brief facts giving rise to these appeals are that the appellant of Special Appeal No. 1470 of 2007 Sushil Kumar Pandey was appointed on compassionate ground on assuming the civil death of his father, namely, Jyoti Bhushan Pandey, who was working in temporary capacity as Seechpal in the Irrigation Department and was reported not to have been seen or heard of from 1.8.1981. The said appointment was granted to the appellant Sushil Kumar Pandey upon his attaining the age of majority on 30.11.1994. On 22.12.2004 the appellant was served with a show cause notice that why his services should not be terminated as per the terms of appointment letter on the ground that his father did not dis appear in the year 1981 as alleged by the appellant but he himself abandoned his temporary service which after notice dated 6.4.1983 and 20.4.1983 led to his termination vide order dated 7.6.1983. Further in response to the said termination he had sent his representation which was received in the office on 10.6.1983 stating therein his inability to perform his official duties due to physical and domestic reasons. Therefore, the very appointment of the appellant on compassionate ground is invalid. The appellant submitted his reply to the said notice and thereafter his services was terminated vide order dated 25.4.2006 which was challenged before the Writ Court which rejected the claim of the appellant and dismissed the writ petition. Hence, this special appeal. 4. The appellant of Special Appeal No. 1557 of 2007 Smt. Saroj Pandey is the mother of Sushil Kumar Pandey and widow of Jyoti Bhushan Pandey. Hence, this special appeal. 4. The appellant of Special Appeal No. 1557 of 2007 Smt. Saroj Pandey is the mother of Sushil Kumar Pandey and widow of Jyoti Bhushan Pandey. She filed the writ petition on the ground that her claim for family pension after presumed/civil death of her husband has been rejected by the authority concerned on the ground that the story regarding the legal death of her husband was untrue and in fact Jyoti Bhushan Pandey was temporary employee and was terminated from service and, therefore, there was no question of grant of family pension which was in fact claimed after an inordinate delay, that is to say, after more than 10 years, i.e., in the year 2004. 5. We have heard Sri Bhupendra Nath Singh, learned counsel for the appellant and the learned Standing Counsel appearing for the State-authorities and have perused the ground of appeal mentioned in the memo of appeal alongwith the annexures filed therein. 6. The case set up by both the appellants is that the father and husband of the appellants’ respectively was a permanent employee in the Irrigation Department holding the post of Seenchpal. The appellants claimed that from 1.8.1981 Jyoti Bhushan Pandey was neither seen nor heard of by them and in accordance with Section 108 of the Indian Evidence Act after lapse of 7 years he was presumed dead and upon the son attaining the age of majority applied for appointment on compassionate ground under the provisions of Uttar Pradesh Recruitment of Dependants of U.P. Government Servants Dying in Harness Rules, 1974 (in short the Rules) and was given appointment in the year 1994. It seems that Smt. Saroj Pandey the wife of Jyoti Bhushan Pandey suddenly woke up and decided to put forward a claim for family pension etc. on the ground of the alleged legal death of her husband Jyoti Bhushan Pandey. 7. According to the respondents, upon such an application being made in the year 2004 the records were dug out which revealed that the story made up by both the appellants was false, inasmuch as, Jyoti Bhushan Pandey, who was a temporary employee could not have been presumed to be legally dead for the purposes of benefits to his dependents upon the fact that he was terminated from service after due notice etc. on 7.6.1983. on 7.6.1983. It is also contended that Jyoti Bhushan Pandey in fact wrote a letter which was received in the department on 10.6.1983 wherein he had shown his inability to continue to work any further on account of his physical condition and domestic reasons, therefore, the claim set up by both the appellants that Jyoti Bhushan Pandey disappeared and was not seen or heard of from 1.8.1981 was incorrect. The father of the appellant as claimed by him disappeared on 1.8.1981 but FIR regarding his disappearance was lodged after 12 years on 14.12.1993 with an insidious design to illegally obtain appointment upon furnishing incorrect information and, therefore, a show-cause notice was issued to him on 22.12.2004 as to why upon submission of false information his appointment be not cancelled as per the conditions laid down in his letter of appointment. In response to the aforesaid show-cause notice the appellant Sushil Kumar Pandey submitted his reply dated 18.1.2005 alleging therein that he has not concealed any information with the department and in fact his father has not been heard or seen from 1.8.1981 and specifically denied the factum of termination of his father from service as well as the alleged letter dated 10.6.1983 which has been claimed by the respondents that they received from the father of the appellant. 8. Considering the reply dated 18.1.2005 of the appellant the order of termination dated 25.4.2006 was passed on the ground that the appointment of the appellant under the Dying-in-Harness Rules was illegal since the father of the appellant Sushil Kumar Pandey did not die in harness and was in fact terminated from service vide order No. 13/83-84 (Rajasva) dated 7.6.1983 and also on the ground that the appellant’s claim that his father was not seen or heard of since 1.8.1981 was also proved false and incorrect because of the letter dated 10.6.1983 which is said to be representation against termination of the father of the appellant Suhshil Kumar Pandey. 9. The appellants are now claiming that having been appointed under the Dying-in-Harness Rules in the year 1994, suddenly in the year 2004, i.e., after lapse of more than 10 years the appellant Sushil Kumar Pandey could not have been terminated merely upon a show-cause notice. 9. The appellants are now claiming that having been appointed under the Dying-in-Harness Rules in the year 1994, suddenly in the year 2004, i.e., after lapse of more than 10 years the appellant Sushil Kumar Pandey could not have been terminated merely upon a show-cause notice. It is also claimed by the appellant that the order of termination dated 7.6.1983 was never served upon his father, therefore the same could not have been relied upon by the learned Single Judge. The learned Single Judge, therefore, was not justified in dismissing the writ petition. The appellant Smt. Saroj Pandey in Special Appeal No. 1557 of 2007 on the other hand, claims that once having been given appointment to her son under the Dying-in Harness Provisions the authorities accepted the legal death of her husband and, therefore, was entitled to the family pension and other benefits that are admissible to the widow after death of permanent employee and the learned Single Judge in dismissing the writ petition has erred in law and, therefore, the judgment and order of the learned Single Judge dated 27.9.2007 should be set-aside. 10. We have considered the rival submissions made by the learned counsel for the parties. 11. In our considered opinion, the controversy now revolves around the order of termination dated 7.6.1983 and the letter dated 10.6.1983 said to have been written by Jyoti Bhushan Pandey, the father and the husband of the appellants and the said letter as claimed by the authorities if found correct then the case set up by the appellants will have no legs to stand as then it cannot be believed that both the appellants are in any way entitled for any benefit on the ground of presumed civil death of Jyoti Bhushan Pandey, who as claimed by the respondents, was a temporary employee and was in fact terminated from service on 7.6.1983. 12. Learned Single Judge in order to satisfy himself regarding the genuineness of the claims and counter claims made by the parties summoned the original record and after carefully scrutinizing them held as under : “Assuming that a compassionate appointee is a regular appointee but on the facts of this case, he was not entitled for departmental enquiry because his very appointment is based on fraud and fraud vitiates all actions at its very inception. There is no denial that there was no declaration of legal death of the father of the petitioner by any competent Court. The Court had summoned the entire record and after examining it the only conclusion which could be drawn is that the petitioner and his mother both have practised fraud upon the department and one was able to obtain appointment and other was in the process of obtaining undue benefit on its basis. The contention that the termination order could not operate without being served, is without any pleadings. There is absolutely no averment that the termination order was never served on his father. To the contrary, a perusal of the record shows that after receipt of the termination order, his father has sent a letter dated 10.6.1983. The termination order and the letter of the father of the petitioner were closely examined and it is obvious that both, paper and the writing thereon is very old and therefore the further contention that the petitioner has been framed is incorrect. There is no averment attaching any motive or bias on any of the officials of the department.” 13. Sri B.N.Singh, learned counsel for the appellants has relied upon a Full Bench decision of Kerala High Court in the case of Appula Vadhyar Narayana Vadhyar v. Venkateswara Vadhyar and others, AIR 1971 Kerala 85, wherein the question involved for the purpose of determination of limitation for filing a suit in the case of legal death as contemplated under Sections 107 and 108 of the Indian Evidence Act. The Full Bench while tracing the history of Section 108 from English Law which states “ If a person has not been heard of for seven years, there is a presumption of law that he is dead: but at what time within that period he died is not a matter of presumption but of evidence, and the onus of proving that the death took place at any particular time within the seven years lies upon a person who claims a right ..........” The facts of the present case are distinguishable from the facts of the aforesaid decision. However, no presumption of death can be drawn, if by some material on record, it appears that the said material was of a date after the date of disappearance as claimed by the appellant. 14. However, no presumption of death can be drawn, if by some material on record, it appears that the said material was of a date after the date of disappearance as claimed by the appellant. 14. Sri B.N.Singh, learned counsel has then placed reliance upon the decision of the Hon’ble Supreme Court in the cases of Union of India and others v. Dinanath Shantaram Karekar and others, (1998) 7 SCC 569 and State of Punjab v. Khemi Ram, 1969(3) SCC 28 , in order to assert that any order not communicated to the affected person cannot be relied upon. But in the facts of the present case, the aforesaid decisions are not applicable, inasmuch as, the order of termination dated 7.6.1983 was communicated to the father of the appellant and in response thereto he tendered his representation dated 10.6.1983 and since no such averment has been made in the writ petition, the same cannot be raised at this stage. 15. Similarly, Sri Singh, learned counsel has also relied upon the decision of the Hon’ble Supreme Court in the cases of Sudesh Kumar v. State of Haryana and others, (2005) 11 SCC 525 and Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851 . In the case of Sudesh Kumar (Supra) the Hon’ble Supreme Court was dealing with Article 311(2)(b) of the Constitution of India wherein without affording any opportunity, dismissal order was passed. But in the present case, opportunity by way of show-cause notice was given to the appellant and after consideration of his reply his appointment has been cancelled. 16. In the case of Mohinder Singh Gill (supra) the Hon’ble Supreme Court has held that the validity of an order must be judged by the reasons so mentioned in that order which cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. There is no quarrel with the aforesaid proposition but the said principle has no application in the facts of the case at hand. 17. There is no quarrel with the aforesaid proposition but the said principle has no application in the facts of the case at hand. 17. We have carefully gone through the averments made by the respective counsels and the affidavits filed by them as well as the decisions relied upon and also the reasoning of the learned Single Judge in dismissing the writ petition and in the facts of the present case, we are of the view that the learned Single Judge was justified in dismissing the writ petition on the basis of fraud played for obtaining the appointment by the appellant. 18. The appellant had claimed that the father, who was a permanent employee, went missing from 1.8.1981 and, therefore, he was presumed dead under Section 108 of the Indian Evidence Act and thus claimed benefit of appointment under the Dying-in-Harness Rules, 1974 whereas the record proved that subsequent to the date as claimed by the appellant the father of the appellant a temporary employee had himself represented before the authorities vide letter dated 10.6.1983 against his termination order dated 7.6.1983 and the learned Single Judge, having found the aforesaid document to be true and genuine, was quite justified in dismissing the writ petition. Secondly, in any case the order terminating the services of the father of the appellant dated 7.6.1983 became final and binding as the same has not been challenged before any authority or Court of Law. Thirdly and most importantly, we are of the view that once a High Court Judge himself summons the record and scrutinizes the same and enquires into the matter and comes to the conclusion that a fraud has been played, unless some very strong material is shown to rebut the aforesaid finding it has to be taken as correct. 19. In the present case, no such material has been brought on record to contradict the findings recorded by the learned Single Judge. 19. In the present case, no such material has been brought on record to contradict the findings recorded by the learned Single Judge. The argument of the learned counsel for the appellants that principles of natural justice have been violated and that non holding of a detailed enquiry has caused irreparable injury to the appellant is also misconceived, inasmuch as, the learned Single Judge issuing writ of certiorari had called for the record and examined the same and enquired into the matter himself and the parties were given full opportunity to put forward their claim and counter claims and after due deliberation the learned Judge has recorded a finding of fraud being committed. The settled principles of law is that fraud vitiates everything. Once the factum of fraud having been found true by the learned Judge the appellant now cannot insist upon departmental enquiry being held especially in view of the fact that at the time of very inception into service if an order of appointment is procured by playing fraud such an appointee cannot be held to be a holder of a civil post in order to seek protection of Article 311 of the Constitution of India. 20. It may also be noted that the Hon’ble Supreme Court in the case of R. Vishwanatha Pillai v. State of Kerala and others, (2004) 2 SCC 105 , in paragraph 15 held as under : “This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste Community, then the very basis of his appointment was taken away. His appointment was no appointment in the eye of the law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India...........” 21. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India...........” 21. Similarly, in the present case, the appointment was granted to the appellant on compassionate ground in view of the fact that the father of the appellant had died in harness but since the record reveals otherwise, the very basis of granting appointment to the appellant is gone and as such, the appointment is void ab initio. 22. In the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and others, JT 1993 (6) SC 331, the Hon’ble Supreme Court in paragraphs 7 and 8 held as under: 7.”We do not agree with the High Court that “there is no legal duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence”. The principle of “finality of litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property-grabbers, tax-evaders, bank- loan-dodgers and other unscrupulous persons from all walks of life find the Court-process a convenient lever to retain the illegal- gains indefinitely. We have no hesitation to say that a person, who’s case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. 8. ......... A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss. It is a cheating intended to get an advantage.........” 23. Therefore, upon the aforesaid discussions, we are of the view that the judgment of the learned Single Judge does not call for any interference. However, we have our reservation regarding the portion of the order by which the learned Single Judge has directed for recovery of salary that was paid to the appellant. Therefore, upon the aforesaid discussions, we are of the view that the judgment of the learned Single Judge does not call for any interference. However, we have our reservation regarding the portion of the order by which the learned Single Judge has directed for recovery of salary that was paid to the appellant. Considering the facts and circumstances of the case, it is undeniably true that fraud has been played in obtaining the appointment by the appellant and it is also true that the said fraud would have remained undetected if the mother of the appellant had not applied for family pension. During this period more than 10 years had elapsed and the authorities continued to take work from the appellant and for the services rendered he was remunerated by salary. Now after 10 years of service as the appellant has been dismissed, in such a case, the recovery of entire salary from the person would be too severe for the acts and omission on his part but also the omission and negligence on the part of the authorities in granting appointment to the appellant, which in the facts of the case cannot be ruled out. Even otherwise Article 23 of the Constitution of India prohibits taking of ‘Begar’. The State-respondents having taken work from the appellant (Sushil Kumar Pandey) for more then 10 years before the fraud was detected, cannot be permitted to ask for refund of the entire salary paid to him as it would amount to taking of ‘Begar’ which the Constitution of India strictly prohibits. 24. Be that as it may, we can also not shut our eyes to the fact that the salary and other service benefits extended to the appellant was result of a fraud committed by him as held by the learned Single Judge. 24. Be that as it may, we can also not shut our eyes to the fact that the salary and other service benefits extended to the appellant was result of a fraud committed by him as held by the learned Single Judge. Therefore, being in respectful agreement with the judgment of the Hon’ble Judge, but keeping in view the provisions of Article 23 of the Constitution of India, we are of the view that it would meet the ends of justice if the order of the learned Single Judge is modified to the extent that instead of recovering entire salary paid to the appellant, it is directed that the authorities concerned will be entitled to recover all the amount paid to the appellant from the public exchequer during the period that he was in service except the minimum of the pay scale admissible to the post held by the appellant. It is further directed that the authorities are also at liberty to proceed against the appellant or any other person or employee found to have been involved in the commission of the aforesaid fraud in any manner as may be permissible in law. 25. Both the appeals are, thus, devoid of merit and are, accordingly, dismissed. —————