Jharkhand High Court
Sharwan Kumar vs The State Of Jharkhand Through The Chief ... on 14 August, 2023
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
1 LPA No.639 of 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
LPA No.639 of 2022
Sharwan Kumar, age about 68 years, son of late Girjapati, resident of
Village- Baliguma, P.O. + P.S.- G.M. Mango, Dist.- East-Singhbhum,
Jamshedpur, Jharkhand. ..... Appellant
Versus
1. The State of Jharkhand through the Chief Secretary of Jharkhand,
office at Project Bhawan, P.O.+P.S.- Dhurwa, Dist.- Ranchi,
Jharkhand.
2. The Director, Secondary Education, Human Resource Development
Department, Government of Jharkhand, Office at Project Bhawan
P.O.- Dhurwa, P.S.- Jagarnath Nagar, Dist.- Ranchi, Jharkhand.
3. The District Education Officer, West Singhbhum, P.O.+P.S.- Mango,
Town, Jamshedpur, Dist.- East Singhbhum, Jharkhand.
.... Respondents
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
For the Appellant : Mr. Santosh Kr. Soni, Advocate
For the Respondents: Mr. Sarvendra Kumar, AC to SC (L&C)-III
Mr. Rahul Dev, AC to SC (L&C)-III
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Order No.6: Dated 14 August, 2023
th
Per Sujit Narayan Prasad, J.
I.A. No. 7195 of 2023
The instant interlocutory application has been filed for substitution of the appellant through his legal heirs, as per the name furnished at paragraph-I of the interlocutory application, i.e. Amit Kumar Soni, Ravi Kumar Soni and Manish Kumar Sony.
2. The contention has been made that in course of pendency of this appeal, the appellant has died on 08.03.2023 and in support of this argument, the copies of death certificate along with AADHAR card of legal heirs has been appended thereto. It has further been contended that the appellant-Original writ petitioner (now deceased) has left his 2 LPA No.639 of 2022 three sons as legal heirs, namely Amit Kumar Soni, Ravi Kumar Soni and Manish Kumar Sony and as such the instant interlocutory application has been filed on their behalf for substitution.
3. There is no objection on the part of the State counsel, even though; the copy of the said interlocutory application has been served upon the learned State counsel.
4. This Court, taking into consideration the stand taken in the instant interlocutory application, having no opposition on behalf of the State, is of the view that the instant interlocutory application deserves to be allowed.
5. Accordingly, the I.A. No. 7195 of 2023 is allowed.
6. The office is directed to make necessary correction in the cause title of the appeal.
LPA No. 639 of 2022
7. This appeal is filed under Clause 10 of the letters patent, directed against the order dated 17.10.2022 passed by the learned single judge of this court in WP(S) No. 3951 of 2014, whereby and where under, the decision taken by the respondent authority as contained in order dated 28.06.2014, communicated to the original writ petitioner vide Memo No. 1129 dated 28.06.2014, has been refused to interfered with by dismissing the writ petition.
8. Brief facts of the case as per the pleadings made in the writ proceeding, which are required to be enumerated herein, read as under :-
3 LPA No.639 of 2022
8(i). The father of the original petitioner namely Late Girijapati who had been working as Headmaster at Jaihind Girls Middle School, Bagbera, Jamshedpur died in harness on 12.04.2004 as is apparent from death certificate, appended at Annexure-1 to the writ petition. After the death of his father, original petitioner has submitted application for his appointment on compassionate ground and he also enclosed related documents for consideration of his appointment. Original Petitioner had also submitted certificate granted by the Circle Officer, Jamshedpur regarding his financial status and dependents of the family of his late father, as apparent from certificate dated 07.06.2004 and 09.10.2004. Petitioner who has completed graduation at the relevant time and supporting documents was also provided to the concerned Respondents for consideration of his claim for compassionate appointment.
8(ii). In terms of the said application, finally his application for compassionate appointment along with others have been placed before the District Compassionate Committee on 19.04.2005. Finally decision has been taken in his favour as apparent from decision dated 19.04.2005 and recommendations has been made for appointment of the petitioner on Class-III post. Subsequently letter dated 15.07.2006 has been issued from the office of the Director, Primary Education, Human Resource Development Department, Jharkhand as per which certain relaxation regarding age has been granted in favour of the petitioner. The mother of petitioner namely Lachmina Devi also 4 LPA No.639 of 2022 executed an affidavit on 28.02.2009 wherein she has recommended in his favour enabling him to get appointment on compassionate ground and therein other facts was also contended by her.
8(iii). After compliance of required formalities, an office order has been issued from the office of District Education Officer, East- Singhbhum, Jamshedpur the same was communicated to the petitioner also vide Memo no.- 339 dated 28.05.2009 as per which he has been appointed as a clerk at Mithila High School, Sonari, Jamshedpur. The mother of the petitioner also died on 18.06.2010 and as such entire responsibility of his late father now came upon the shoulder of the petitioner and from the date of appointment this petitioner is rendering his duty honestly and sincerely and regularly his salary was being paid. 8(iv). One complaint has been submitted before the concerned authority and as such one letter has been issued from the office of District Education Officer, East Singhbhum, Jamshedpur dated 08.05.2013 and vide subsequent letter bearing No.2832 dated 05.12.2013, the petitioner has been asked to submit his explanation in terms of complain submitted by his own brother, in respect of suppression of certain facts at the time of getting compassionate appointment. Before issuance of appointment letter in favour of the petitioner, the District Superintendent of Education, West-Singhbhum vide letter no.- 1101 dated 10.06.2008 made required enquiry from the Circle Officer, Naubatpur, Patna, regarding service of Lachmina Devi, mother of this petitioner and the same is replied vide letter no- 1217 5 LPA No.639 of 2022 dated 16.07.2008 wherein it was communicated that she was not in service as evident from report and being satisfied from every aspect, appointment of the petitioner was made in the year 2009. After the death of their parents both the brothers namely Sharwan Kumar and Saroj Kumar, with the help of well-wisher and family members, amicably partitioned/divided their properties and also made certain understanding and as per which it has been decided that service on compassionate ground will be enjoyed by the original petitioner. In the said agreement executed by the brothers jointly, it has also been contended that the rents will be taken by the Younger Brother, Saroj Kumar. The said agreement has been witnessed by number of persons and members of Panchayat who also put their signature on agreement dated 28.08.2011.
8.(v). It is admitted fact that the father of the petitioner who was working as Headmaster of the said school, died in the year 2004 and mother was also working as Assistant Teacher till 2005 whereas the original petitioner has been appointed in the year 2009. It is contended that the petitioner has neither mentioned incorrect date of birth nor submitted any wrong certificate for consideration of his appointment on compassionate ground. After completion of all formalities and enquiries, the petitioner has been appointed and since then he was rendering his service there. The younger brother of the petitioner has certain grievances regarding family dispute and as such, he has submitted a complaint against this petitioner, misleading the fact 6 LPA No.639 of 2022 otherwise. The petitioner in terms of the said letter dated 08.05.2013 has already submitted his reply before the concerned respondents as apparent from his reply dated 30.07.2013 and 04.12.2013. Though petitioner has already replied and tried to satisfy them and also requested that the complaint submitted by his brother is only being aggrieved by family dispute but the respondents without assigning any cogent reason stopped his salary for few months due to which the petitioner faced financial crisis. In terms of letter communicated to him, he also submitted his representation before the competent respondent wherein he elaborated relevant facts for their satisfaction about the said application dated 12.05.2014, which was also lying pending with them. Neither departmental proceeding was started in the matter of the petitioner nor chargesheet has been submitted. After violation of natural justice lastly order dated 28.06.2014 has been passed and petitioner has been terminated from service vide order dated 28.06.2014.
8.(vi). Against the aforesaid order passed by the respondent, the appellant moved before this Hon'ble Court in W.P. (S) no. 3951 of 2014, but the same was dismissed vide order dated 17.10.2022 by learned Single Judge of this Court.
8(vii). It appears from the factual aspects and based upon the pleadings as referred hereinabove that the appellant / original writ petitioner (now deceased) has made an application for appointment on compassionate ground after the death of his father, who died in 7 LPA No.639 of 2022 harness on 12.04.2004 while working as headmaster in a school. The original writ petitioner (now deceased), made an application for consideration of his case for appointment on compassionate ground when his father died by giving therein declaration that there is no bread earner in the family and as such, he, being the son, is eligible to be considered for appointment on compassionate ground. The case of the original writ petitioner was sent to the District Compassionate Committee and his case was recommended for appointment as per the recommendation dated 19.04.2005 by giving relaxation on the age of the original writ petitioner. The original writ petitioner, thereafter has been appointed on 28.05.2009 as clerk in Mithila High School, Sonari and started discharging his duty, but on a complaint, it was reported to the competent authority that the day, when the case of the original writ petitioner (now deceased) was recommended for appointment on compassionate ground, his Mother was in government service, who had retired only on 31.05.2005. The authority, after verifying the said aspect of the matter, the same was communicated to the original writ petitioner (now deceased) to explain as to why his services will not be terminated due to suppression of the material fact of having the mother in job on the day when the case of the appellant-original writ petitioner was considered by the District Establishment Committee. The reply has been given by the original writ petitioner (now deceased) that the mother of the original writ petitioner was living in the State of Bihar while he was living at Jamshedpur, in the State of 8 LPA No.639 of 2022 Jharkhand, did not have good relationship with mother, so the original writ petitioner (now deceased) had not furnished any false information purposely and had not committed any fraud. The authority concerned had considered the said reply to be admission on the part of the original writ petitioner and accordingly terminated him from service vide letter No.1129 28.06.2014.
9. The writ petitioner being aggrieved, preferred the writ petition being WP(S) No. 3951 of 2014 before the learned single judge and on consideration of the admission on the part of the writ petitioner regarding the fact that the day when the application was made and the recommendation thereupon was made by the District Compassionate Committee, the material fact of having the mother in service was suppressed, therefore, the same has been considered to be fraud due to active concealment of the fact and accordingly decision was taken to terminate the original writ petitioner from the service therefore the learned single judge has refused to interfered with the decision so taken by the competent authority and hence the present instant appeal.
10. Mr. Santosh Kumar Soni, learned counsel appearing for substituted appellants has submitted that there is no fault on the part of the original writ petitioner, since, no fact was suppressed as he was having no good relationship with his mother and the original writ petitioner was living in Jamshedpur while his mother was living in the erstwhile State of Bihar and therefore there was no reason to disclose 9 LPA No.639 of 2022 the fact that the mother was in government service, working in successor State of Bihar and in that view of matter, it cannot be said that any fraud has been committed.
11. The main thrust of argument is that whatever may be the reason since, the father (original writ petitioner) of the substituted legal heirs was appointed on compassionate ground by taking him in the regular establishment and hence there is requirement for regular departmental proceeding before dispensing employee from services by way of termination, but the said departmental proceeding was not initiated, therefore, the termination is absolutely arbitrary and illegal and against the principle of natural justice, but the learned single judge has not appreciated the aforesaid fact, therefore, the present appeal.
12. Per contra, Mr. Sarvendra Kumar, learned A.C. to S.C. (L&C)-III appearing for the State of Jharkhand has submitted that there is no illegality in the impugned order as also the order passed by the administrative authority on the basis of consideration over suppression of fact and committing of fraud.
13. The fact was that the mother of the original writ petitioner was working as a regular employee in the successor State of Bihar and as such, it was upon the writ petitioner to give the declaration to that effect at the time of making application, but admittedly no such declaration was made and in absence thereof, the case of the original writ petitioner (now deceased) was recommended by the District 10 LPA No.639 of 2022 Establishment Committee, basis upon which, the original writ petitioner was given appointment on the compassionate ground.
14. The contention has been made that since there is material suppression of fact that the mother of the original writ petitioner was in service and the moment it came to the notice of the authorities, the decision was taken by asking the reply, wherein, the fact about the mother being in service had not been disputed, therefore, there was no reason to initiate a departmental proceeding and accordingly the reply had been found to be not satisfactory, the decision was taken to dispense with the service of the original writ petitioner (now deceased). The learned single judge after taking into consideration the aforesaid fact, has refused to interfere with the impugned decision of the administrative authorities, the same cannot be said to be suffered from an error.
15. We have heard learned counsels for the parties, perused the materials available on record as also the order passed by the learned single judge.
16. The issue herein is as per the argument advanced on behalf of the appellant, as to whether, in a case where admittedly the material fact has been suppressed, which amounts to fraud, a departmental proceeding is required to be initiated? This Court is now proceeding to answer the aforesaid issue keeping the fact into consideration that the case arises out of providing appointment on compassionate ground.
11 LPA No.639 of 2022
17. The law is well settled, so far as the appointment on compassionate ground is concerned that the same is only to be exercised in order to meet the immediate succour so as to provide the immediate relief to the dependent of the deceased employee due to sudden demise in harness. The appointment on compassionate ground is admittedly within the teeth of the Articles 14 and 16 of the Constitution of India, but even then, the government has floated the scheme to provide appointment. It was there by way of notification dated 05.10.1991 by the erstwhile State of Bihar and subsequent thereto in the year 2014 in the successor State of Jharkhand. The appointment since was provided in the year 2009 on the basis of the recommendation of the District Compassionate Committee dated 19.04.2005, therefore, the circular issued by the erstwhile State of Bihar dated 05.10.1991 is relevant for the purpose for the lis herein.
18. It is evident from the said circular that the specific condition has been stipulated therein that the concerned dependent of the deceased employee will have to give a declaration that none of the family member of the deceased employee is in the government job. Reference in this regard has been made herein below:-
संकल्प के आधार पर आश्रित ं की श्रियुक्ति 5.1091 के अिुसार संकल्प संख्या 13293 श्रििांक : 5.10.91 बिहार सरकार, काबमिक एवं प्रशासबिक सुधार बवभाग।
बवषय: सेवा काल में मृत सरकारी सेवक ं के आबित ं क वगि-3 एवं 4 के पद ं - पर अिुकम्पा के आधार पर बियुक्ति की प्रबिया ।
बिदे शािुसार कहिा है बक अि तक सेवा काल में बकसी सरकारी सेवक की मृत्यु ह िे पर मृत सरकारी सेवक के आबित क वगि-3 एवं 4- के 12 LPA No.639 of 2022 पद ं पर बियुक्ति हे तु काबमिक एवं प्रशासबिक सुधार बवभाग द्वारा बिगित सभी अिुदेश ं क अविबमत करते हुए सरकार िे यह बिर्ि य बलया है बक अिुकम्पा के आधार पर बियुक्ति की प्रबियाओं क इस प्रकार सरल एवं प्रभावकारी ििाया जाये बक सरकारी सेवक के मृत्य परान्त उसके आबित क बििा बवलम्ब के वगि 3 के कबतपय पद ं अथवा वगि-4 के पद ं पर बियुक्ति बमल सके। इस उद्दे श्य से सरकार िे बिम्ां बकत बिर्ि य बलया है --
1. श्रकिका चयि ह सकता है .
(क) अिुकम्पा के आधार पर बियुक्ति का लाभवैसे मृत सरकारी सेवक के एक ही आबित क अिुमान्य ह गा । बजिकी मृत्यु सेवाकाल में हुई हैं । (ख) इस हे तु सरकारी सेवक उसे ही मािा जायगा बजसकी बियुक्ति स्वीकृत पद के बवरूद्ध बवबधवत की गई ह ।
(ग) सेवाकाल में मृत सरकारी सेवक ं के आबित ं क ही अिुकम्पा के आधार पर बियुक्ति की जा सकती है । आबित के अन्तगित केवल पत्नी, पुत्र, अबववाबहत पुत्री तथा पुत्र की बवधवा पत्नी सक्तिबलत रहे गी। दत्तत पुत्र, दामाद, भतीजा आबद क आबित िहीं मािा जायेगा ।
(घ) अिुकम्पा के आधार पर बिम्बलक्तखत प्राथबमकता के अिुसार बकसी एक आबित की बियुक्ति की जायगी-
(1) मृत सेवक की पत्नी ।
(2) पुत्र ।
(3) अबववाबहत पुत्री ।
(4) पुत्र की बवधवा पत्नी ।
(ङ) यबद पबत-पत्त्िी द ि ं सरकारी सेवा में ह और बकसी एक की मृत्यु ह जाय त वैसी क्तथथबत में अिुकम्पा के आधार पर बियुक्ति का लाभ उिके पररवार के बकसी आबित क िहीं बमले गा ।
(च) यबद क ई मबहला सरकारी सेवा में ह और उिके पबत बकसी सरकारी सेवा में कायिरत िहीं ह त , मबहला सरकारी सेवक की मृत्यु उपरान्त उसके पबत क अिुकम्पा के आधार पर बियुक्ति का लाभ ह सकेगा।
19. The appointment on compassionate ground is to be made on the basis of the said circular, basis upon which the application was made by the original writ petitioner on the sudden demise his father, who had died in harness on 12.04.2004 and the original writ petitioner had not disclosed the material fact that his mother was in the regular establishment working in the State of Bihar, the day when the application was made for the consideration of his case for the 13 LPA No.639 of 2022 appointment on compassionate ground. The authority has recommended the case of the writ petitioner on the premise of the fact that there is dire need of the appointment on the compassionate ground due to the sudden demise of the bread earner and as such, his case was referred before the District Compassionate Committee for consideration. The District Compassionate Committee has considered and recommended also by giving the age relaxation to the original writ petitioner. The appointment was provided in the year 2009, i.e. on 28.05.2009. The original writ petitioner (now deceased) had started working, but in the meanwhile, based upon a complaint that the day when the application was made by the original writ petitioner, his mother was working in the regular establishment in State of Bihar and as such the said fact was inquired into and it was found by the authority concerned that the mother of the original writ petitioner was in government job working in the State of Bihar, when the application for consideration of his case for appointment on compassionate ground as also when the case of the original petitioner was considered by the District Compassionate Committee. The competent authority has given an opportunity to original writ petitioner and the response was furnished by not disputing the aforesaid fact, rather, the justification was shown that the original writ petitioner was residing separately at Jamshedpur, while his mother was residing in the state of Bihar and hence there was no need to give a declaration of the job of his mother and hence there is no suppression of material fact. The 14 LPA No.639 of 2022 aforesaid admission has been considered to be a material suppression of fact and in consequences thereof, the decision of termination of the original writ petitioner was taken.
20. The original writ petitioner raised the question before the learned single judge that there cannot be any termination without proving in departmental proceeding. According to the original writ petitioner, the aforesaid aspect of the matter has not been considered.
21. There is no dispute that in a case of misconduct before imposing any major penalty, i.e., dismissal, removal or compulsory retirement, regular departmental proceeding is to be initiated under the provisions of Rule 55 of the Civil Services (Classification Control & Appeal) Rule, 1930, which was invoked the day when the decision to terminate the services of the original writ petitioner was taken.
22. The entire procedure has been written under Rule 55 thereof for imposing the punishment, either of dismissal or removal or compulsory retirement. The three punishments are the major punishments in order to separate the concerned employee from the roll of the establishment. Admittedly herein, the original writ petitioner had not been dismissed from service or removed or compulsory retired, rather, the writ petitioner has been terminated from service.
23. Now the question is that whether the termination can be construed to be dismissal or removal or compulsory retirement and if the termination which is said to be synonymous with the dismissal or 15 LPA No.639 of 2022 removal or compulsory retirement, then admittedly what is being said on behalf of the appellant that the departmental proceeding is to be initiated before taking the decision to terminate the services of one or other employee, the same is required to be followed. The question of initiation of departmental proceeding is only for the purpose of imposing major punishment as dismissal or removal or compulsory retirement. The moment, the decision is being taken to terminate the services of one or other employee that itself suggests that it is not a case of misconduct, rather, the conduct of the concerned candidate, who have inducted himself in the service by committing some suppression of fact.
24. The law is well settled that the regular departmental proceeding is to be initiated in case of misconduct. The misconduct is also elaborated by the Hon'ble Apex Court that can be construed to be misconduct, if the concerned employee has committed misconduct in discharging official duty. It is admitted case that whatever the illegality is being found to be committed against the original writ petitioner, the same will be treated to be misconduct or not is also a question.
25. Our considered view is that the same will not be treated to be a misconduct, since, the very entry in service is in doubt, i.e. on the basis of the suppression of the material fact, when the entry of the writ petitioner is in doubt, where is the question to have the allegation of misconduct.
16 LPA No.639 of 2022
26. Herein, it is admitted fact that the original writ petitioner (now deceased) has been inducted in the service on the suppression of fact, i.e., the suppression of fact about the service of mother of the original writ petitioner. The original writ petitioner was conscious of the fact that the declaration is to be given that none of the family members is in the government job on the date of application as per the resolution dated 05.10.1991, since, the application itself has been submitted on the basis of the aforesaid circular and therefore it is not available for the writ petitioner to say that he has not harbored this matter.
27. It is admitted fact that a declaration was given by the original writ petitioner that none of the family members are working in the government job, but subsequent thereto, it was found that the mother of the original writ petitioner was in government job and when it was inquired, the original writ petitioner has admitted the aforesaid fact, but with the justification that the original writ petitioner was having no good relationship with the mother and living separately, the mother lived at the relevant time in the State of Bihar, while the original writ petitioner was living in Jamshedpur in the State of Jharkhand. The fact, therefore, about the suppression of fact has not been disputed by the original writ petitioner.
28. Therefore, now in this context also, the question of requirement of initiation of departmental proceeding is also necessary to be looked into. The law is well settled that when the fact is admitted, there is no need to initiate a departmental proceeding on the basis principal laid 17 LPA No.639 of 2022 down that when the fact is not in dispute, why to proceed for an enquiry. The enquiry is for the purpose of coming to the logical end, for the rightful conclusion by providing an opportunity to the parties, more particularly, the decision which is to be taken against a person, who is going to suffer. Therefore, the purpose of conducting an enquiry is only to come to a rightful conclusion. Here, in the instant case, it is admitted case of the original writ petitioner that his mother was in service, when the application for getting the appointment on compassionate ground was made, as also the day when his case was recommended by the District Compassionate Committee. Therefore the day of recommendation is paramount consideration, which was based on the application along with the declaration of none of the family members was in service, has been admitted by the original writ petitioner as would appear from the response given by him in the application, when the query made by the authority in this regard. The fact since is admitted about the service of the mother of the original writ petitioner, therefore, in such circumstances, question is why to proceed for an inquiry, what will come out when the fact is admitted by the original writ petitioner.
29. The law is well settled that if there is no chance of any outcome, there is no need to follow the principle of natural justice, otherwise it will lead to empty formality and futile exercise as has been held by the Hon'ble Apex Court in Escorts Farms Ltd. v. Commissioner, Kumaon Division, Nainital, U.P. & others, [(2004) 4 SCC 281] wherein Hon'ble 18 LPA No.639 of 2022 the Apex Court has held at paragraph- 64 which is being quoted herein below: ― "64. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties - 9 - have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India."
30. In the case of Dharampal Satyapal Ltd. v. Deputy Commissioner of Central Excise, Gauhati and others, [(2015) 8 SCC 519], their Lordships have held at paragraph 39 which is being quoted herein below: ― "39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasizing that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason-perhaps because the evidence against the individual is thought to be utterly compelling- it is felt that a fair hearing ―would make no difference‖- meaning that a hearing would 19 LPA No.639 of 2022 not change the ultimate conclusion reached by the decision-maker."
31. Herein, the facts of the given case is also the same, since, the fact about the suppression of fact that the mother of the original writ petitioner being in service, the day when the application for the compassionate appointment was made is admitted, therefore, even if the departmental proceeding is directed to be initiated, then there was no chance of change in the factual aspect, on the basis of the aforesaid admission.
32. Further since we have already dealt with herein above that the order of termination since is not in the list of the punishment, rather, it is only the dismissal or removal or compulsory retirement and as such the termination being not on the ground of misconduct and hence on that ground also, there is no need to initiate a departmental proceeding, since, the termination is based upon the commission of the fraud.
33. The fraud is already defined under section 17 of the Contract Act, which means that any active suppression of material fact amounts to a fraud.
For reference, Section 17 in The Indian Contract Act, 1872 is being referred herein:-
"17. 'Fraud' defined.--'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:-- --'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another 20 LPA No.639 of 2022 party thereto or his agent, or to induce him to enter into the contract\:--"
(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it; (4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares to be fraudulent. Explanation.--Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence, is, in itself, equivalent to speech."
34. Herein, the writ petitioner (deceased now) knows very well that his mother was in government service but this fact has not been disclosed in the application, therefore, there is active suppression of material fact, hence, the same is fraud, even as per the definition of 'fraud' as provided under Section 17 of the Indian Contract Act, 1872.
35. It is further settled position of law that fraud vitiates everything. Forgery avoids all judicial acts, ecclesiastical or temporal. The Hon'ble Apex Court while considering the ambit of forgery, in the case of Devendra Kumar Vrs. State of Uttaranchal and Ors., reported in (2013) 9 SCC 363, wherein at paragraph-13, 14, 15, 16 and 17, the Hon'ble Apex Court has observed as follows:-
"13. It is settled proposition of law that where an applicant gets an office by misrepresenting the facts or by playing fraud upon the competent authority, such an order cannot be sustained in the eye of 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: (QB p.
712) ".......No judgment of a court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything."21 LPA No.639 of 2022
14. In A.P. State Financial Corpn. Vs. GAR Re-
Rolling Mills and State of Maharashtra Vs. Prabhu this Court has observed 12 that a writ court, while exercising its equitable jurisdiction, should not act to prevent perpetration of a legal fraud as courts are obliged to do justice by promotion of good faith.
"Equity is, also, known to prevent the law from the crafty evasions and subtleties invented to evade law."
15. In Shrisht Dhawan v. Sahw Bros., it has been held as under: (SCC p. 553, para 20) "20. Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct."
16. 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 not lost temper over all these centuries. A similar view has been reiterated by this Court in M.P. Mittal v. State of Haryana.
17. In Ram Chandra Singh v. Savitri Devi this Court held that "misrepresentation itself amounts to fraud", and further held: (SCC p. 327, para 18)."
Thus, the ratio laid down by the Hon'ble Apex Court in the judgments referred hereinabove lays down that where dishonesty should not be permitted to bear the fruit and benefit those persons who have frauded or misrepresented, in such circumstances, the court should not perpetuate the fraud by entertaining petitions on their behalf.
36. This Court, on the basis of the aforesaid law as discussed above and considering the fact of the case in hand, has found therefrom that it is admitted case of the writ petitioner that his mother was in the government service but this fact had not been disclosed in the application submitted at the time of making application for consideration of his candidature for appointment on compassionate 22 LPA No.639 of 2022 ground and when it came to the notice of the authority that the fact has been suppressed, a notice was issued to the writ petitioner and subsequently, the services of the writ petitioner has been terminated.
37. This Court, in entirety of the facts and circumstances of the case, is of the view that the order passed by the learned Single Judge is not required to be interfered with.
38. Accordingly, this appeal is dismissed.
(Sujit Narayan Prasad, J.) (Navneet Kumar, J.) R.Kumar AFR