Madhya Pradesh High Court
Aditya Upadhyay vs National Institute Of Fashion ... on 11 August, 2020
Equivalent citations: AIRONLINE 2020 MP 959
Author: Sanjay Yadav
Bench: Sanjay Yadav
1 W.A.No.588/2020
HIGH COURT OF MADHYA PRADESH : JABALPUR
(Division Bench)
Hearing through Video Conferencing
Writ Appeal No.588/2020
Aditya Upadhyay
vs.
National Institute of Fashion Technology, thr: Director General,
New Delhi & others
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Shri Anoop Nair, learned counsel for the appellant.
Shri Paritosh Gupta, learned counsel for respondent No.1 to 4.
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Per: Sanjay Yadav, J.
ORDER
Jabalpur, dated: 11.08.2020 This Appeal under Section 2(1) of the M.P. Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 is directed against the order dated 09.01.2020 passed in Writ Petition No.6105/2016.
2. By the said order learned Single Judge finally disposed of two Writ Petitions, viz. W.P.No.6105/2016 and W.P.No.17504/2018.
3. Whereas, W.P.No.6105/2016 was directed against the order dated 22.02.2016, whereby, the contractual service of the Appellant (hereafter referred to as 'Petitioner') was directed to be dispensed 2 W.A.No.588/2020 with effect from 1.04.2016. The Writ Petition No.17504/2018 was for a direction to the employer for extension of contractual period, wherein learned Single Judge declined to issue a mandamus for extension of contractual period, holding that "the petitioner cannot claim/seek extension of contract as of right as the respondent/ NIFT has not extended the term of contract. Clause 10 of the terms and conditions of contract appointment provides that after expiry of the contract term, the employment shall stand terminated automatically unless the same is extended in writing by NIFT. It is clear from the reply of the respondent/NIFT that the employer has lost faith and confidence in the employee. Under the circumstances, the respondents cannot be enforced to extend the period of employment of the petitioner." The petitioner evidently, having not challenged the order passed in Writ Petition No.17504/2018, has allowed the order to attain finality.
4. The petitioner, however, takes exception to order passed in Writ Petition No.6105/2016.
5. The relevant facts briefly are that in the year 2012, the Respondent National Institute of Fashion Technology invited applications for filling the post of Assistant Professor on contractual basis for teaching, research and training in Design, Management and Technology at Mumbai, Bangaluru, Hyderabad, Gandhinagar, Patna, Raebareli, Jodhpur, Bhubaneswar, Shillong, Kannur and Kangra from the persons upto 35 years (maximum age limit relaxable up 7 years in case of NIFT employees and upto 5 years for deserving candidates 3 W.A.No.588/2020 possessing higher educational qualification/experience, possessing following qualifications:
Qualification Experience
UG/PG Diploma/Degree in Minimum relevant experience
relevant area (as per table "A" required:
from a recoginzed Institute or
University of 4 years UG Diploma/Degree -
national/international repute, 5 years (+1 year if its a 3 - year
with required years of relevant UG degree/diploma)
experience in
teaching/research/Industry. 2 years PG Diploma/Degree - 2
years (+1 year if duration < 2
Candidates with a Ph.D degree year)
in the relevant area will be
given preference. All
candidates who do not possess
Ph.D degree shall be
encouraged to obtain the same
within 5 years from the date of
appointment.
6. It was further stipulated in the advertisement that the candidate must possess the prescribed qualification and experience as indicated against the Code and that All Degrees and Diplomas prescribed for the teaching positions shall be a full time course from the Institute of National/Internationals repute. The petitioner applied for the post of Assistant professor and was offered and appointed on contract basis initially for a period of one year, extendable for remaining 2 years on evaluation by order dated 30.7.2012 on various terms and conditions. Clauses 3, 9, 10, 22 and 24, relevant for the present stipulated:
"3. Your employment will be for a period of 03 years w.e.f. from your date of joining. Your performance will be evaluated after completion of one year and subject to the outcome of the evaluation of your services, the 4 W.A.No.588/2020 appointment shall be continued for the remaining contract period.
9. Your assignment can be terminated by either side without assigning any reason, after giving one month's notice or one month's remuneration in lieu thereof.
10. After expiry of the contract term, your contract employment shall stand terminated automatically unless the same is extended in writing by NIFT.
22. You shall be governed by the Central Civil Services (Classification, Control and Appeal) Rules, 1965 as amended from time to time and GSR of NIFT.
24. If any declaration given by you is proved to be false, or if you violate any condition of the present contract appointment, you will be liable to be removed from services or any other action, which NIFT may deem necessary."
7. Pertinent it is to note that in respect of experience, petitioner furnished a certificate issued by Netlink, on 03.04.2012 certifying that the petitioner has worked in the capacity of Trainer for C and C++ from July 2007 to June 2009 and as Trainee Software Developer from July 2011 to March 2012.
8. That by order dated 22.08.2014, the contractual service of the petitioner was continued for remaining period of 2 years. Thereafter, by order dated 13.08.2015, the contract period of the petitioner was extended upto 30.06.2018. Meanwhile, i.e. before passing the order dated 13.08.2015, the Director, NIFT, Bhopal received a communication No.10/10/2014, Vig./15 dated 05.02.2015 from NIFT Vigilance Division, Head Office, with regard to verification of work experience of the petitioner in Netlink Pvt. Ltd. wherefor a complaint 5 W.A.No.588/2020 was received that the documents were forged and fabricated and the Director, NIFT Bhopal was accordingly, requested to arrange for the comments of the petitioner, who was required to submit valid proof of his employment with Netlink Pvt. Ltd. by submitting - (a) Offer letter of appointment of Netlink, (b) Acceptance letter of offer of Appointment letter of Netlink, (c) Salary slips of Netlink for the month of July 2007, December, 2007, December 2008 and June, 2009 with bank proofs and (d) Resignation acceptance letter by Netlink or any other proof in support of claim of employment with Netlink Pvt. Ltd. The petitioner gave his reply on 09.12.2015, wherein, he stated :
"To, Center Director, NIFT Bhopal Sub: Regarding Vigilance Inquiry of My Work Experience.
Dear Sir, I received a letter no.13601(1)/NIFT/BPL/VIG/2015/part- 4 on 6th February, 2015 at around 4:30 PM regarding comments on my experience certificate of Netlink Training Unit. In this letter, name of the complainant is not mentioned. I have been asked to reply on next working day. It seems like all this is being done to harass me.
With regard to the subject of the letter, it is being submitted that -
1. Earlier also there was some query from Establishment-HO regarding my association with the firm HS Brands, for which I have replied over email dated 08.01.2014 (attached).
2. I have only work experience certificate which I have submitted earlier too and is being submitted again.6 W.A.No.588/2020
3. I had some more documents regarding my joining and working with Netlink Pvt. Ltd. but I have lost those all. Secondly as a fresher that time, I did not take those papers so seriously. I worked there to gain experience and to learn to lay a foundation. And the remuneration paid to me was always in cash.
4. I was working for Netlink's Training division which was an independent company and that has already been closed due to their interested issues. So, even if I want to get a certificate against my appointment and other testimonials, I cannot get those again on request as the Company is no more in existence there.
5. The present company is taken over by another management with a different domain name and this is not the same company where I worked. All the people including the HR and other officials are no more working with the new one. And was never related to the organisation where I worked. All the employees of that organisation have left and joined some other firms. They are also being bothered by Mr. Vasant Kothari and apparently his close associates, in the name of inquiry. It is only that firm which had a record of my association. But since it is closed now, I can not get any other supporting material now.
6. In last few years my residence got shifted many times. Hence all unnecessary documents either got lost in shifting or disposed off. At the time of my appointment I had some testimonials like my joining report and a copy of my resignation, but all are lost now. However, I am trying hard to trace those documents in all my files and folders and if I find anything relevant, I will submit the same to you.
7. Somebody from NIFT-HO also inquired with Mr. Priyank (who was in HR in that company) whom I contacted for certificates and he also conveyed the same that company got closed and there is no records anywhere. Regards Aditya Upadhyay 7 W.A.No.588/2020 Assistant professor NIFT Bhopal"
9. Thus, the petitioner evaded from furnishing the documents sought for. On receiving the reply, Chief Vigilance Officer, observed that the period of experience mentioned in the experience certificate of Netlink Pvt. Ltd. from July 2007 to June 2009 is overlapping with the regular Degree course. Accordingly clarification was sought from the petitioner who received the communication dated 24.08.2015 on 01.09.2015. The petitioner was thereafter served with the show cause notice on 16.11.2015 in following terms:
"SHOW CAUSE NOTICE 16th November, 2015 WHEREAS, Vigilance Department, NIFT Head Office had received a complaint alleging that the work experience certificate submitted by Shri Aditya Upadhyay in respect of Netlink Pvt. Ltd. for the employment from July 2007 to June, 2009 is fabricated and has been forged.
2. AND WHEREAS, while scrutnizing the records, it has been observed, that while applying for the post of Assistant professor in NIFT against advertisement no.03/2012-Estt., Sh.Aditya Upadhyay, Assistant Professor, NIFT Bhopal had submitted an attested copy of the work experience certificate of Netlink Pvt. Ltd. from July 2007 to June, 2009 as trainer.
3. AND WHEREAS Sh. Aditya Upadhyay has failed to submit original copy of the experience certificate, or any other supporting proof of discharge documentary evidence like offer of appointment, Salary slips, etc in support of his claim of employment with Netlink Pvt. Ltd. Further, he had submitted that he was trying hard to trace documents and the same would be submitted if found. Till 8 W.A.No.588/2020 now, no documents have been submitted by the said Sh.Upadhyay in support of veracity of his claim of employment.
4. AND WHEREAS fact finding report of Mr. S.N.Sangule, Labour Inspector, Bhopal, duly signed by Mr. Priyank Chakredher, (whose signature is there in the experience certificate of Netlink confirms that Sh. Aditya Upadhyay had not been employed with Netlink Pvt. Ltd. Further, Sh.Priyank Chakredher also confirms that students studying in the training institute of Netlink used to get documents like this one signed from him.
5. AND WHEREAS Sh. Aditya Upadhyay was a regular student of B.E. (Electornic & Communication Engineering) in J.N.College of Technology, Bhopal affiliated to Rajiv Gandhi Proudyogiki Vishwavidyalaya, Bhopal till 2008.
6. AND WHEREAS the working experience mentioned in the experience certificate of Netlink is overlapping the period from July 2007 to June 2008 when he was pursuing the regular degree course.
7. AND WHEREAS Sh. Aditya Upadhyay has failed to prove the experience certificate of Netlink Pvt. Ltd. as original certificate and NOW, THEREFORE, Shri Aditya Upadhyay is directed to show cause within 15 days of the receipt of this Show Cause Notice in his defence in writing, as to why disciplinary action under the CCS (CCA) Rules 1965 should not be initiated against him for the above mentioned charges.
This issues with the approval of DG-NIFT (Pramila Sharan) Chief Vigilance Officer (I/c)"
9 W.A.No.588/202010. The petitioner gave his reply on 25.12.2015. As the petitioner failed to produce the genuine experience certificate led the respondent pass following order on 22.02.2016.
"National Institute of Fashion Technology Establishment Department Head Office, New Delhi NIFT/HO/Estt.II/Bhopal/2008/par II 22.02.216 OFFICE ORDER The Vigilance Deptt. vide Office Order dated 02.02.2016 informed that Mr. Aditya Upadhyay, Assistant Professor, NIFT Bhopal alleging that the certificate submitted by him in support of his work experience, purportedly issued to him by Netlink Technical & Management services Pvt.Ltd. in respect of his employment with them from July, 2007 to June 2009 is false as he was regular student of Bachelor of Engineering from 2005-2008.
In view of the above, Mr.Aditya Upadhyay did not possess required experience at the time of his contract appointment as Assistant Professor in NIFT.
In view of the given facts and circumstances, the Competent Authority has decided to terminate the contract of Sh.Aditya Upadhyay, Assistant Professor, NIFT Bhopal Campus with effect from 1st April 2016.
(Registrar)"
11. The order of 22.02.2016 was assailed by the petitioner in Writ Petition mainly on the ground that the petitioner was not afforded a reasonable opportunity of hearing and no enquiry under the Rules of 1965 was conducted before terminating the contract period.
12. Learned Single Judge dwelling on the issue held:
10 W.A.No.588/2020"17. It is the contention of the petitioner that before casting stigma on him of submitting forged experience certificate and terminating his service, no enquiry has been conducted nor any opportunity of hearing was given. It is noticeable that the services of the petitioner have been terminated on the ground that he was not having requisite experience at the time of applying for the contract appointment. This finding had been arrived at for the reason that petitioner has not submitted any document in support of his claim of working experience.
18. It is also noticed that apart from asking for the report of Mr. Sangule (Labour Inspector) and the copy of complaint, the petitioner has not filed any documents in reply to letter dated 05.02.2015, 24.08.2015 or show cause notice dated 16.11.2015 nor tried to clarify regarding the overlapping of period of two years of his regular employment while he was pursuing his regular degree course of Bachelor of Engineering (Electronics & Communication), rather he has pleaded in para 5 of the petition that he worked as part time trainer in the year 2007 and after completing his B.E., he continued as trainer on full time basis. He has further stated that he has gained work/industry/teaching experience of three years and three months and even if the experience of one year from Netlink Pvt. Ltd. is taken away, then also he is having more than two years' experience. However, the fact remains that in his application he has mentioned having experience of two years ten months only.
19. However, the order of termination has lost its efficacy in view of the fact that the petitioner has continued in service by virtue of interim order dated 31.03.2016, even beyond his contractual period i.e.30.06.2018 and the salary for the period has already been paid, therefore, W.P.No.6105/2016 has been rendered 11 W.A.No.588/2020 infructuous by efflux of time and is, accordingly, disposed of."
13. Grievance raised by the petitioner is that non-suiting of the petitioner suffers an inherent error as learned Single Judge glossed over the fact that it being one of the conditions of appointment that the provision of 1965 Rules being applicable the petitioner's contract appointment could not have been terminated without adhering to the stipulations contained in the Rules of 1965, whereunder, it was incumbent upon the employer to have drawn the charges and conducted the departmental enquiry where the petitioner could have availed the reasonable opportunity of hearing. These submissions, though attractive, however, are bereft of substance.
14. True it is that condition No.22 of the appointment letter stipulates that the petitioner was governed by the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and the GSR of NIFT. However, the applicability of the Rules of 1965 will be in the event of any imputation of misconduct or misbehaviour. Sub- Rule (2) of Rule 14 of the Rules of 1965 provides for that :
"(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof."
15. The instant case, as borne out from the facts adverted supra is not relating to any misconduct or misbehaviour during service, but 12 W.A.No.588/2020 relates to furnishing forged and fabricated document of experience, which being one of the essential qualifications for appointment invalidated petitioner's candidature for the post of Assistant Professor. Condition No.9 and 24 of the appointment letter categorically stated that the appointment can be terminated by either side without assigning any reason, after giving one month's notice or one month's remuneration in lieu thereof. And if any declaration given by the petitioner is proved false, or if petitioner violates any condition of the contract appointment he was liable to be removed from service.
16. In case where an appointment is obtained on false document, it is held by the Supreme Court in Addl. General Manager - Human Resource, Bharat Heavy Electricals Ltd. vs. Suresh Ramkrishna Burde (2007) 5 SCC 336 :
"13. The principle, which seems to have been followed by this Court is, that, where a person secures an appointment on the basis of a false caste certificate, he cannot be allowed to retain the benefit of the wrong committed by him and his services are liable to be terminated. However, where a person has got admission in a professional course like engineering or MBBS and has successfully completed the course after studying for the prescribed period and has passed the examination, his case may, on special facts, be considered on a different footing. Normally, huge amount of public money is spent in imparting education in a professional college and the student also acquires the necessary skill in the subjects which he has studied. The skill acquired by him can be gainfully utilised by the society. In such cases the professional degree obtained by the student may be protected though he may have got admission by producing 13 W.A.No.588/2020 a false caste certificate. Here again no hard-and-fast rule can be laid down. If the falsehood of the caste certificate submitted by the student is detected within a short period of his getting admission in the professional course, his admission would be liable to be cancelled. However, where he has completed the course and has passed all the examinations and acquired the degree, his case may be treated on a different footing. In such cases only a limited relief of protection of his professional degree may be granted.
14. In the case in hand the respondent got appointment on 31-5-1982 on a post, which was reserved for a member of Scheduled Tribe. On receiving complaints the employer referred the matter to the District Collector, Nagpur and also to the Scrutiny Committee in March 1991. The subsequent period has been spent in making enquiry and in litigation as the respondent filed three writ petitions. In view of the principle laid down by this Court we are clearly of the opinion that his services were rightly terminated by the appellant and the High Court was in error in directing his reinstatement. The order passed by the High Court, therefore, has to be set aside."
17. Similarly, in Regional Manager, Central Bank of India vs. Madhulika Guruprasad Dahir (2008) 13 SCC 170, it is held:
"14. Similarly, the plea regarding rendering of services for a long period has been considered and rejected in a series of decisions of this Court and we deem it unnecessary to launch an exhaustive dissertation on principles in this context. It would suffice to state that except in a few decisions, where the admission/appointment was not cancelled because of peculiar factual matrix obtaining therein, the consensus of judicial opinion is that equity, sympathy or generosity has 14 W.A.No.588/2020 no place where the original appointment rests on a false caste certificate. A person who enters the service by producing a false caste certificate and obtains appointment to the post meant for a Scheduled Caste or Scheduled Tribe or OBC, as the case may be, deprives a genuine candidate falling in either of the said categories, of appointment to that post, and does not deserve any sympathy or indulgence of this Court. He who comes to the Court with a claim based on falsity and deception cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour.
15. An act of deliberate deception with a design to secure something, which is otherwise not due, tantamounts to fraud. 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 words or letter. (See R. Vishwanatha Pillai v. State of Kerala [(2004) 2 SCC 105 :
2004 SCC (L&S) 350] , Bank of India [(2005) 7 SCC 690 : 2005 SCC (L&S) 1011] , BHEL [(2007) 5 SCC 336 : (2007) 2 SCC (L&S) 152] , Derry v. Peek [(1889) 14 AC 337 : (1886-90) All ER Rep 1 (HL)] , Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education [(2003) 8 SCC 311] and Bhaurao Dagdu Paralkar v. State of Maharashtra [(2005) 7 SCC 605] .)
16. In Ram Chandra Singh v. Savitri Devi [(2003) 8 SCC 319] this Court had observed that 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.
17. Recently, in State of Maharashtra v. Ravi Prakash Babulalsing Parmar [(2007) 1 SCC 80 : (2007) 1 SCC (L&S) 5] dealing with a similar situation, this Court has observed thus: (SCC p. 89, para 23) 15 W.A.No.588/2020 "23. The makers of the Constitution laid emphasis on equality amongst citizens. The Constitution of India provides for protective discrimination and reservation so as to enable the disadvantaged group to come on the same platform as that of the forward community. If and when a person takes an undue advantage of the said beneficent provision of the Constitution by obtaining the benefits of reservation and other benefits provided under the Presidential Order although he is not entitled thereto, he not only plays a fraud on the society but in effect and substance plays a fraud on the Constitution.
When, therefore, a certificate is granted to a person who is not otherwise entitled thereto, it is entirely incorrect to contend that the State shall be helpless spectator in the matter."
18. Having considered the matter in the light of the aforestated legal position, in our judgment, the decision of the High Court is untenable. As noted supra, the employee having accepted the finding of the Scrutiny Committee, holding that the caste certificate furnished by the employee was false, the very foundation of her appointment vanished and her appointment was rendered illegal. Her conduct renders her unfit to be continued in service and must necessarily entail termination of her service. Under these circumstances, there is absolutely no justification for her claim in respect of the post merely on the ground that she had worked on the post for over twenty years. The post was meant for a reserved candidate but she usurped the same by misrepresentation and deception. In our opinion, the fact that caste certificate was referred to the Scrutiny Committee for verification after ten years of her joining the service and a long time was taken by the Scrutiny Committee to verify the same is of no consequence inasmuch as delay on both the counts does not validate the caste certificate and the consequent illegal appointment."
16 W.A.No.588/202018. In the case at hand, despite repeated opportunity granted to the petitioner to produce original document regarding his experience, he failed to produce the same. Experience being the essential qualification, the respondents, in our considered opinion, were justified in terminating the contract, as the petitioner was not even eligible for appointment.
19. The impugned order when adjudged on above analysis cannot be faulted with.
20. Consequently, Appeal fails and is dismissed. No costs.
(Sanjay Yadav) (B. K. Shrivastava)
Judge Judge
anand
Digitally signed by
ANAND KRISHNA SEN
Date: 2020.08.14
10:56:05 +05'30'