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2019 DIGILAW 832 (ALL)

Ashok Kumar Gond v. State of U. P.

2019-04-03

SUNEET KUMAR

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JUDGMENT : Suneet Kumar, J. Heard Sri P.K. Upadhyay, learned counsel for the applicant, learned Standing Counsel for the State-respondent and Sri Satya Prakash, learned counsel appearing for the respondent nos. 2, 3 and 4. 2. The instant petition is directed against the order dated 26 February 2009 passed by the second respondent, General Manager, Food Corporation of India, Regional Office, Gomti Nagar, Lucknow/appellate authority, affirming the order dated 3 September 2008 passed by the third respondent, Area Manager/Disciplinary Authority, Food Corporation of India, District Office Varanasi, imposing penalty of dismissal from service. 3. The facts, in brief, is that disciplinary proceedings, came to be initiated against the petitioner, a watchman, under Regulation 58 of the Food Corporation of India (FCI) (Staff) Regulations, 1971, by issuing charge sheet dated 9 January 2007 for two charges: (i) that the petitioner was issued appointment on the post of watchman on 31 March 1997 against Scheduled Tribe (ST) category with direction to submit documents in support of educational qualifications, caste certificate at the time of joining. Pursuant thereof, petitioner submitted caste certificate No. nil dated 26/27.11.1996. Upon verification, Tehsildar, Ghanpur vide letter dated 13 May 2003 stated that caste certificate of the petitioner was never issued from the office, further, petitioner is resident of Village Kedarpur, Tehsil Gyanpur, District Sant Ravidas Nagar (Bhadohi) and there is no family of Gond caste. Gond caste comes under the Other Backward Class (OBC). In other words, the allegation against the petitioner was that he obtained appointment on a forged and bogus caste certificate; (ii) On notice, for submitting forged/bogus caste certificate, petitioner filed reply on 12 July 2004 stating that he belongs to Gond caste and the caste certificate was duly issued by the Tehsildar, Gyanpur. Upon receiving the reply, a three member committee was constituted to enquire into the matter, vide report dated 21 June 2006 it was intimated that caste certificate was not issued to the petitioner. 4. Sri Parma Nand Singh, Manager (G) of FCI was appointed enquiry officer to conclude the disciplinary enquiry in terms of Rule 14 of CCS (CCA) Rules 1965. The enquiry report dated 17 December 2007 came to be submitted with a finding that the charges stand proved against the petitioner for producing false caste certificate regarding his caste status to secure appointment in the Special Recruitment Drive of SC/ST during 1996-97. The enquiry report dated 17 December 2007 came to be submitted with a finding that the charges stand proved against the petitioner for producing false caste certificate regarding his caste status to secure appointment in the Special Recruitment Drive of SC/ST during 1996-97. Petitioner submitted reply to the second show cause notice which was duly considered by the disciplinary authority along with the material available on record, including, the communication of Tesildar, Gyanpur. Pursuant to the circular dated 18 February 2008, mandating compliance of the Supreme Court judgment directing the parties to take action against the government servants/employees of Public Sector Undertaking (PSUs) against the official who obtained appointments on false SC/ST/OBC certificate, the service of the petitioner came to be terminated. 5. It is noted in the impugned order that the matter was got enquired by the Revenue Inspector of the area and upon enquiry it was reported that no person of the name of the petitioner (Ashok Kumar Gond S/o Sri Kripa Shankar Gond) is resident of Village Kedarpur, Teshil Gyanpur of Gond caste. Gond caste comes under the Backward Class. Tehsildar, further informed that the caste certificate, as is being claimed by the petitioner was never issued by the office. The Notification dated 29 August 1997 issued by the Government of Uttar Pradesh, of the declared listed Castes and Tribe, nullified the plea of the petitioner. Consequently, the disciplinary authority vide order dated 3 September 2008 imposed penalty of dismissal from service. Aggrieved, petitioner preferred an appeal. The appellate authority agreed with the findings of the enquiry officer and the order of the disciplinary authority came to be affirmed in appeal. 6. Learned counsel for the petitioner has placed reliance on the enquiry report dated 17 December 2007 and submits that the enquiry officer had exonerated the petitioner, the charges was held not proved by giving benefit of doubt to the petitioner. 7. In this backdrop, it is urged that the disciplinary authority while considering the representation of the petitioner to the second show cause notice wrongly noted in the impugned order that the enquiry officer had proved the charges. 8. It is urged by the learned counsel for the petitioner that the impugned order was passed on a wrong premise without issuing notice to the petitioner on the disagreement to the finding of the enquiry officer, hence, it is urged that petitioner has been adversely prejudiced. 8. It is urged by the learned counsel for the petitioner that the impugned order was passed on a wrong premise without issuing notice to the petitioner on the disagreement to the finding of the enquiry officer, hence, it is urged that petitioner has been adversely prejudiced. It is, however, admitted by the petitioner that he belongs to Gond caste and not to SC/ST category. It is further urged that Tehsildar was not summoned by the enquiry officer to substantiate the communication which is the basis for terminating the services of the petitioner. 9. In the counter affidavit, a categorical stand has been taken that the enquiry report dated 17 December 2007 (Annexure No. 15 to the writ petition) is forged and manufactured document. The enquiry officer had held the petitioner guilty of the charge, based on the evidence and material the charges came to be proved. The enquiry report placed on record by the petitioner, the Deputy Manager to satisfy the authenticity of the enquiry report, a notice dated 25 September 2009 was issued to the Enquiry Officer/Area Manager, FCI, Varanasi, to authenticate the correctness of the document. The enquiry officer vide communication dated 26 September 2009 addressed to the Area Manager categorically stated that the document at Annexure No. 15 to the writ petition filed by petitioner is a forged and fabricated document prepared for the purpose of the case with a motive to mislead the Court. Enquiry Officer clarified that the enquiry report submitted by him was signed on all the pages in english, whereas, the document filed by the petitioner is unsigned. The copy of the correct enquiry report has been placed on record (At annexure No. CA-2) by the respondents. In reply to paragraph 20 of the counter affidavit, the petitioner in the rejoinder affidavit (para 12) has stated there are two contrary enquiry report, therefore, the respondent may be directed to conduct a fresh enquiry with regard to caste certificate prior to passing of the impugned order. Paragraph 20 of the counter affidavit and para 12 of the rejoinder affidavit reads thus, respectively: "20. That contents of paragraph no. 23 of the writ petition are false, incorrect and based on forged and fabricated enquiry report filed by the petitioner hence specifically denied. 12. That the contents of paragraph no. Paragraph 20 of the counter affidavit and para 12 of the rejoinder affidavit reads thus, respectively: "20. That contents of paragraph no. 23 of the writ petition are false, incorrect and based on forged and fabricated enquiry report filed by the petitioner hence specifically denied. 12. That the contents of paragraph no. 20 of affidavit are wholly wrong, misconceived hence denied and therefore, reaffirm the para 23 of the writ petition. It is further submitted that there are two enquiry report which are contrary, therefore, the respondents may be directed to make a fresh inquiry with regard to the caste certificate prior to passing the impugned order." 10. The paragraph 12 of the rejoinder affidavit has been sworn on legal advice. It is not the case of the petitioner that the procedure prescribed under the Rules for holding departmental enquiry for imposition of major punishment was not complied. Petitioner was served the charge sheet to which he replied, thereafter, in a full fledged enquiry findings was returned based upon the documents relied upon therein. 11. It is not in dispute that the petitioner obtained appointment on a document which was forged and manufactured. That apart, before this Court, a forged and manufactured enquiry report has been filed thereby giving an impression that the petitioner was exonerated by the Enquiry Officer. On the basis of the forged document it is urged that the disciplinary authority has wrongly noted in the impugned order that charges came to be 'proved' against the petitioner, whereas, Enquiry Officer held the charges 'not proved'. The material brought on record by the respondents, in particular, the enquiry report clearly demonstrates that the applicant has tried to mislead the Court by filing forged and manufactured documents. The conduct of the petitioner is not only contemptuous but he has also exposed himself for criminal prosecution in terms of Section 340 Cr.P.C. 12. The Supreme Court in the case of A.P. Public Service Commission vs. Koneti Vekateswarulu and others, (2005) LABIC 3610 held as follows:- "8. 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. 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. .................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 public employment. We completely endorse this view....." "Fraud" means an intention to deceive; whether it is from any expectation of advantage to the party himself or from ill will towards the other is immaterial. The expression "fraud" involves two element, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. (Vide: Vimla (Dr.) vs. Delhi Administration, (1963) AIR SC 1572 ; and Indian Bank vs. Satyam Fibres (India) (P) Ltd., (1996) 5 SCC 550 ). "Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that the misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that the misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to belief and act on falsehoold. It is a fraud in law if a party makes representation, which he knows to be false, and injury ensures there from although the motive from which the representation proceeded may not have been bad. 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. (Vide Ram Chandra Singh vs. Savitri Devi, (2003) 8 SCC 319 ). "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". 13. In Smt. Shrisht Dhawan Vs. Shaw Brothers, (1992) AIR SC 1555, it has been held as under:- "Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct." 14. In United India Insurance Co. Ltd. Vs. Rajendra Singh & Ors., (2000) 3 SCC 581 , the Apex 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. 15. In Union of India & Ors. Vs. M. Bhaskaran, (1995) Supp4 SCC 100, the Apex Court, after placing reliance upon and approving its earlier judgment in District Collector & Chairman, Vizianagaram Social Welfare Residential School Society. Vizianagaram & Anr. Vs. 15. In Union of India & Ors. Vs. M. Bhaskaran, (1995) Supp4 SCC 100, the Apex Court, after placing reliance upon and approving its earlier judgment in District Collector & Chairman, Vizianagaram Social Welfare Residential School Society. Vizianagaram & Anr. Vs. M. Tripura Sundari Devi, (1990) 3 SCC 655 , observed as under:- "If by committing fraud any employment is obtained, the same cannot be permitted to be countenanced by a Court of Law as the employment secured by fraud renders it voidable at the option of the employer" 16. Supreme Court in the case of Oswal Fats and Oils Limited vs. Additional Commissioner (Administrative), Bareilly Division, (2010) 4 SCC 728, observed as follows:- "20. It is settled law that a person who approaches the court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny relief to such person." 17. The observations in A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, (2012) 6 SCC 430 are also apposite holding:- "43.1. It is the bounden duty of the court to uphold the truth and do justice. 43.2. Every litigant is expected to state truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts. 43.3. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the court should be truthful. 43.4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrongdoer in the temple of justice. It is imperative that pleadings and all other presentations before the court should be truthful. 43.4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrongdoer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice. 43.5. It is the bounden obligation of the court to neutralise any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process." 18. The presentation of a distorted official document and thereby obtaining advantage from the Court is a contemptuous act as held in Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC 421 . while awarding imprisonment it was held : "14. The legal position thus is that if the publication be with intent to deceive the court or one made with an intention to defraud, the same would be contempt, as it would interfere with administration of justice. It would, in any case, tend to interfere with the same. This would definitely be so if a fabricated document is filed with the aforesaid mens rea. In the case at hand the fabricated document was apparently to deceive the court; the intention to defraud is writ large. Anil Kumar is, therefore, guilty of contempt." 19. Having due regard to the facts and circumstances of the instant case, the Court declines to exercise its discretionary jurisdiction in the instant matter. 20. The writ petition is accordingly dismissed with cost assessed at Rs. 50,000/- to be paid by the petitioner to the FCI Varanasi. 21. It is open to the authorities of the FCI to take recourse against the petitioner by lodging F.I.R.