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2011 DIGILAW 683 (GUJ)

HARSHAD RAO MUKUND RAO WAYKER v. UNION OF INDIA

2011-09-20

K.S.JHAVERI, V.M.SAHAI

body2011
JUDGMENT (Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. The short question that arises for consideration in this writ petition is whether a person who obtains appointment by fraud or misrepresentation is entitled to continue in service or his service is required to be terminated ? 2. The facts in brief are that on the basis of recruitment held between 20.09.2001 to 24.09.2001 the petitioner was appointed temporarily on 14.10.2001 on the post of Sainik in the Indo-Tibetan Border Police Force (M.H.A.), Government of India (for short, “the Border Police”). The appointment of the petitioner was subject to the conditions mentioned in Clause (C) of the appointment letter, which provided that, “On his character and past record declared to be satisfactory through proper channel.” He also submitted an undertaking on 27.09.2001 in the prescribed format as provided by Clause (L). Clause 3 mentioned that “Appointment shall be reserved till production of certificates and past record, issued through the proper channel.” At the time of recruitment, he was asked as to whether in any Court, any case is pending against him, either at Tehsil, Police Station or Institution and in answer the petitioner replied that no case is pending against him and this fact was stated in Column No.1. But, while filling up the Character Form, Column No.12 was left unfilled. 3. However, after the petitioner was appointed, police verification was done and the Police Commissioner, Special Branch, Ahmedabad, by letter dated 12.12.2002, informed the respondents that three cases were registered against the petitioner and they were pending with Naroda Police Station being C.R. No.I-136 of 1997, C.R. No.I-3104 of 1997 and C.R. No.I-2576 of 1998. A show cause notice dated 28.10.2003 was issued to the petitioner stating that in view of the Report of the Joint Police Commissioner, Ahmedabad that the petitioner had been acquitted in the aforesaid cases but, he had made a false statement at the time of recruitment, therefore, under Rule 22 read with Rule 17 of The Indo-Tibetan Border Police Force Rules, 1994 (for short, “the Rules”) the petitioner may show cause within 30 days why he had given false information at the time of recruitment and for giving false information why the petitioner may not be terminated. The petitioner submitted his reply on 04.11.2003. He pleaded that he was innocent and prayed for pardon. 4. The petitioner submitted his reply on 04.11.2003. He pleaded that he was innocent and prayed for pardon. 4. A show cause notice for termination was issued under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965 and thereafter, the petitioner had been terminated on 31.12.2003 by a reasoned order. It is this order which had been challenged in this writ petition. 5. We have heard Ms. Roopal Patel learned counsel for the petitioner. She has urged that even if the petitioner had not disclosed whether any criminal case is pending against him or not or that the petitioner had wrongly informed the respondents that no criminal case is pending against him, even then the service of the petitioner could not be terminated in view of the provisions of Rule 22 of the Rules, as the petitioner had been subsequently acquitted in Summary Case No.1768 of 1998 on 20.02.2003. She urged that the word 'may' in Rule 22 of the Rules gives power to grant pardon from termination from service. The impugned order was not an appropriate order and was too harsh. She placed reliance on the decision of the Apex Court in Commissioner of Police and others v. Sandeep Kumar, (2011) 4 S.C.C. 644 . 6. It is necessary to extract Rule 22 of the Rules as under; “22. Termination of service on grounds of furnishing false /incorrect information at the time of appointment.-The Central Government, or as the case may be, the authority as specified in Rule 17, may terminate the service of a person subject to the Act on grounds of furnishing false / incorrect information at the time of appointment of that person in the service. A show cause notice giving one month's time shall be issued to the individual before termination of his service.” 7. The main thrust of the argument of learned counsel for the petitioner is that Rule 22 confers a discretion on the Central Government or the appointing authority, either to terminate the service or to pardon such person, by using the expression “may” in the Rule. We are not in agreement with the argument of learned counsel for the petitioner as under Rule 22 of the Rules, if a person furnishes false or incorrect information at the time of appointment in service, then his service could be terminated after giving one months' notice. 8. We are not in agreement with the argument of learned counsel for the petitioner as under Rule 22 of the Rules, if a person furnishes false or incorrect information at the time of appointment in service, then his service could be terminated after giving one months' notice. 8. Further, the decision relied upon by learned counsel for the petitioner in Commissioner of Police and others v. Sandeep Kumar, (2011) 4 S.C.C. 644 , would not apply to the facts of the instant case. In the case before the Apex Court, the candidature of the respondent-employee for the post of Head Constable (Ministerial) was cancelled by the appellant-employer on the ground that he had concealed the fact of his involvement in a criminal case and had made a wrong statement in his application form at the time of recruitment, which was challenged by the respondent-employee before the Delhi High Court. The Delhi High Court allowed the petition, against which the appellant-employer approached the Apex Court by way of preferring an appeal. The Apex Court dismissed the appeal by placing reliance upon some books written by English authors. It appears that the earlier decisions of the Hon'ble Supreme Court on the point in issue were not brought to the notice of the Apex Court. 9. The Apex Court in A.P. Public Service Commission v. Koneti Venkateswarulu and others, (2005) 7 S.C.C. 177 , in Para-7 held as under; “7. We are unable to accept the contention of the learned counsel for the First Respondent. As to the purpose for which the information is called, the employer is the ultimate judge. It is not open to the candidate to sit in judgment about the relevance of the information called for and decide to supply it or not. There is no doubt that the application called for full employment particulars vide Column 11. Similarly, Annexure III contained an express declaration of not working in any public or private employment. We are also unable to accept the contention that it was inadvertence which led the First Respondent to leave the particulars in Column 11 blank and make the declaration of non-employment in Annexure III to the application. The application was filled on 24.7.1999, the examination was held on 24.10.1999, and the interview call was given on 31.1.2000. We are also unable to accept the contention that it was inadvertence which led the First Respondent to leave the particulars in Column 11 blank and make the declaration of non-employment in Annexure III to the application. The application was filled on 24.7.1999, the examination was held on 24.10.1999, and the interview call was given on 31.1.2000. At no point of time did the First Respondent inform the appellant commission that there was a bonafide mistake by him in filling up the application form, or that there was inadvertence on his part in doing so. It is only when the appellant commission discovered by itself that there was suppresso veri and suggestio falsi on the part of the First Respondent in the application that the respondent came forward with an excuse that it was due to inadvertence. That there has been suppresso veri and suggestio falsi is incontrovertible. The explanation that it was irrelevant or emanated from inadvertence, is unacceptable. In our view, the appellant was justified in relying upon the ratio of Kendriya Vidyalaya Sangathan (supra) and contending that a person who indulges in such suppresso veri and suggestio falsi and obtains employment by false pretence does not deserve any publicemployment. We completely endorse this view.” 10. The Apex Court in Kendriya Vidyalaya Sangathan and others v. Ram Ratan Yadav, (2003) 3 S.C.C. 437 , in Para – 12 held as under; “12. The object of requiring information in columns 12 and 13 of the attestation form and certification thereafter by the candidate was to ascertain and verify the character and antecedents to judge his suitability to continue in service. A candidate having suppressed material information and/or giving false information cannot claim right to continue in service. The employer having regard to the nature of the employment and all other aspects had discretion to terminate his services, which is made expressly clear in para 9 of the offer of appointment. The purpose of seeking information as per columns 12 and 13 was not to find out either the nature or gravity of the offence or the result of a criminal case ultimately. The information in the said columns was sought with a view to judge the character and antecedents of the respondent to continue in service or not. The High Court, in our view, has failed to see this aspect of the matter. The information in the said columns was sought with a view to judge the character and antecedents of the respondent to continue in service or not. The High Court, in our view, has failed to see this aspect of the matter. It went wrong in saying that the criminal case had been subsequently withdrawn and that the offences, in which the respondent was alleged to have been involved, were also not of serious nature. In the present case the respondent was to serve as a Physical Education Teacher in Kendriya Vidyalaya. The character, conduct and antecedent of a teacher will have some impact on the minds of the students of impressionable age. The appellants having considered all the aspects passed the order of dismissal of the respondent from service. The Tribunal after due consideration rightly recorded a finding of fact in upholding the order of dismissal passed by the appellants. The High Court was clearly in error in upsetting the order of the Tribunal. The High Court was again not right in taking note of the withdrawal of the case by the State Government and that the case was not of a serious nature to set aside the order of the Tribunal on that ground as well. The respondent accepted the offer of appointment subject to the terms and conditions mentioned therein with his eyes wide open. Para 9 of the said memorandum extracted above in clear terms kept the respondent informed that the suppression of any information may lead to dismissal from service. In the attestation form, the respondent has certified that the information given by him is correct and complete to the best of his knowledge and belief; if he could not understand the contents of column nos. 12 and 13, he could not certify so. Having certified that the information given by him is correct and complete, his version cannot be accepted. The order of termination of services clearly shows that there has been due consideration of various aspects. In this view, the argument of the learned counsel for the respondent that as per para 9 of the memorandum, the termination of service was not automatic, cannot be accepted.” 11. The Apex Court in Secy., Department of Home Secy., A.P. and others v. B. Chinnam Naidu, (2005) 2 S.C.C. 746 , in Para-7 held as under; “7. In this view, the argument of the learned counsel for the respondent that as per para 9 of the memorandum, the termination of service was not automatic, cannot be accepted.” 11. The Apex Court in Secy., Department of Home Secy., A.P. and others v. B. Chinnam Naidu, (2005) 2 S.C.C. 746 , in Para-7 held as under; “7. ...As is noted in Kendriya Vidyalaya Sangathan's case (supra) the object of requiring information in various columns like Column No. 12 of the Attestation Form and declaration thereafter by the candidate is to ascertain and verify the character and antecedents to judge his suitability to enter into or continue in service. When a candidate suppresses material information and/or gives false information he cannot claim any right for appointment or continuance in service. There can be no dispute to this position in law. But on the facts of the case it cannot be said that the respondent had made false declaration or had suppressed material information.” 12. The Apex Court in Delhi Administration, through its Chief Secretary and others v. Sushil Kumar, (1996) 11 S.C.C. 605 , in Para-3 held as under; “3. ...It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The Tribunal, therefore, was wholly justified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequences. The consideration relevant to the case is of the antecedents of the candidate. Appointing authority, therefore, has rightly focused this aspect and found it not desirable to appoint him to the service.” 13. If the actual result happened to be in a particular way, the law will take care of the consequences. The consideration relevant to the case is of the antecedents of the candidate. Appointing authority, therefore, has rightly focused this aspect and found it not desirable to appoint him to the service.” 13. In a recent decision of the Apex Court in District Primary School Council, W.B. v. Mritunjoy Das and others, 2011 AIR SCW 4579, in Paragraphs – 6 and 7 it has been held as under; “6. The contentions of the appellant who were respondents in the writ petition before the learned Single Judge are that once a fraud is played and certificate is obtained fraudulently, such conduct is required to be considered as adverse. It was submitted that obtaining a certificate in a fraudulent manner, makes the certificate itself non est and void ab initio. It is also submitted by the learned counsel appearing for the appellant that the aforesaid action of dismissal from service of the contesting respondents was taken in view of their conduct as it was thought that a person of such a conduct should not be allowed to be appointed and continued as a teacher in a primary school as at the stage the students whom the respondents are going to teach are in formative stage. 7. We have considered the submissions of the counsel for the parties. On going through the records placed before us, what we find is that the contesting respondents herein inflated their marks in order to obtain admission in the Primary Teachers' Training Institute. Had the marks not been inflated in the aforesaid manner, the contesting respondents would not have got the admission in that particular Institute as it is disclosed from the records. Therefore, the admission sought for was through an illegal means which is to be deprecated. The conduct of the contesting respondents being such, we cannot find fault with the course of action taken by the appellant herein. It is not that the contesting respondents were not given any opportunity of hearing. They were given a show cause notice and were also given an opportunity of hearing which opportunity they did not accept although they submitted a reply to the show cause notice. There is, therefore, no violation of the principles of natural justice in the present case. It is not that the contesting respondents were not given any opportunity of hearing. They were given a show cause notice and were also given an opportunity of hearing which opportunity they did not accept although they submitted a reply to the show cause notice. There is, therefore, no violation of the principles of natural justice in the present case. If a particular act is fraudulent, any consequential order to such fraudulent act or conduct is non est and void ab initio and therefore, we cannot find any fault with the action of the appellant in dismissing the service of the contesting respondents. In this context we refer to the decision of this Court in Ram Preeti Yadav V. U.P. Board of High School and Intermediate Education and others reported in (2003) 8 S.C.C. 311 : ( AIR 2003 SC 4268 : 2003 AIR SCW 4912) for the proposition that no person should be allowed to keep an advantage which he has obtained by fraud.” 14. In view of the aforesaid decision of the Apex Court, it is clear that where a candidate obtains employment by false pretence, he does not deserve to be in public employment. The Apex Court in a recent decision had the occasion to consider the question of fraud and misrepresentation in Meghmala and others v. G. Narasimha Reddy and others, (2010) 8 S.C.C. 383 . It held in Paras – 28 to 36 as under; “28. It is settled proposition of law that where an applicant gets an order/office by making misrepresentation or playing fraud upon the competent authority, such order cannot be sustained in the eye of the law. “Fraud avoids all judicial acts, ecclesiastical or temporal.” (Vide S.P. Chengalvaraya Naidu v. Jagannath.) In Lazarus Estates Ltd. v. Beasley the Court observed without equivocation that : “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.” 29. In A.P. State Financial Corpn. v. GAR Re-Rolling Mills and State of Maharashtra v. Prabhu this Court observed that writ court, while exercising its equitable jurisdiction, should not act as to prevent perpetration of a legal fraud as the courts are obliged to do justice by promotion of good faith. “Equity is always known to defend the law from crafty evasions and new subleties invented to evade law.” 30. “Equity is always known to defend the law from crafty evasions and new subleties invented to evade law.” 30. In Shrisht Dhawan v. Shaw Bros, it has been held as under : (SCC p. 553, para 20) “20. Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct.” 31. In United India Insurance Co. Ltd. v. Rajendra Singh this Court observed that “Fraud and justice never dwell together” (fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its temper over all these centuries. 32. The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud. (See Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi, Union of India v. M. Bhaskaran, Kendriya Vidyalaya Sangathan v. Girdharilal Yadav, State of Maharashtra v. Ravi Prakash Babulalsing Parmar, Himadri Chemicals Industries Ltd. v. Coal Tar Refining Co. and Mohd. Ibrahim v. State of Bihar.) 33. Fraud is an intrinsic, collateral act and fraud of an egregious nature would vitiate the most solemn proceedings of courts and justice. Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. The expression “fraud” involves two elements, deceit and injury to the person deceived. It is a cheating intended to get an advantage. [Vide Vimla (Dr.) v. Delhi Admn., Indian Bank v. Satyam Fibres (India) (P) Ltd., State of A.P. v. T. Suryachandra Rao, K.D. Sharma v. SAIL and Central Bank of India v. Madhulika Guruprasad Dahir.] 34. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. Suppression of a material document would also amount to a fraud on the court. (Vide S.P. Chengalvaraya Naidu, Gowrishankar v. Joshi Amba Shankar Family Trust, Ram Chandra Singh v. Savitri Devi, Roshan Deen v. Preeti Lal, Ram Preeti Yadav v. U.P. Board of High School & Intermediate Education and Ashok Leyland Ltd. v. State of T.N.) 35. In Kinch v. Walcott it has been held that : “...mere constructive fraud is not, at all events after longdelay, sufficient but such a judgment will not be set aside upon mere proof that the judgment was obtained by perjury”. Thus, detection / discovery of constructive fraud at a much belated stage may not be sufficient to set aside the judgment procured by perjury. 36. From the above, it is evident that even in judicial proceedings, once a fraud is proved, all advantages gained by playing fraud can be taken away. In such an eventuality the questions of non-executing of the statutory remedies or statutory bars like doctrine of res judicata are not attracted. Suppression of any material fact / document amounts to a fraud on the court. Every court has an inherent power to recall its own order obtained by fraud as the order so obtained is non est.” 15. The Apex Court considered the question that what is the effect of the decision of prior Bench, on a coordinate Bench of the same strength. In Union of India and others v. S.K. Kapoor, 2011 (4) S.C.C. 589 , in Para-9 it has been held as under; “9. It may be noted that the decision in S.N. Narula case was prior to the decision in T.V. Patel case. It is well settled that if a subsequent coordinate Bench of equal strength wants to take a different view, it can only refer the matter to a larger Bench, otherwise the prior decision of a coordinate Bench is binding on the subsequent Bench of equal strength. It is well settled that if a subsequent coordinate Bench of equal strength wants to take a different view, it can only refer the matter to a larger Bench, otherwise the prior decision of a coordinate Bench is binding on the subsequent Bench of equal strength. Since, the decision in S.N. Narula case was not noticed in T.V. Patel case, the latter decision is a judgment per incuriam. The decision in S.N. Narula case was binding on the subsequent Bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court.” 16. The purpose of filling in the Columns in the application form about pendency of criminal cases against a candidate is that the employer must know the character and antecedents of the applicant who is seeking appointment. Appointment could be refused by the appointing authority or the employer on the ground that criminal case is pending against a candidate. In the instant case, even in the appointment letter, it was mentioned that the appointment of the petitioner was subject to his past records and therefore, the petitioner accepted appointment with open eyes. It appears that the petitioner deliberately concealed the fact that criminal cases were pending against him with the intention to make a false representation and play fraud on the respondents so that he may get employment. The Border Police is a disciplined force, which secures the borders of India. On border, persons of high integrity and good character are required to be posted. In view of the principle laid down by the Apex Court in A.P. Public Service Commission case (supra) and Mritunjoy Das case (supra), we are of the considered opinion that the petitioner had obtained appointment by fraud and misrepresentation and therefore, his service has been rightly terminated by the respondents in consonance with Rule 22 of the Rules. The decision of the Apex Court in Sandeep Kumar's case is of no help to the petitioner. 17. Hence, this petition is devoid of any merits and is, accordingly, dismissed. Rule is discharged. Parties to bear their own costs.