Jammu & Kashmir High Court
Si Mohammad Amin Beigh vs State Of J And K And Ors. on 26 May, 2005
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
JUDGMENT Mansoor Ahmad Mir, J.
1. Admit. With the consensus of learned Counsel for the parties, this writ petition is taken up for final adjudication.
2. The petitioner came to be appointed in Jammu and Kashmir Police Department in the year 1964. In character roll/service book, his date of birth is recorded as 7th March, 1946 as alleged. The respondent No. 4 vide his communication No. TSA/ENF/08/1495-97 dated 04.12.2003 addressed to respondent No. 3, contained in annexure-C, sought for issuance of sanction for superannuation/ retirement of the petitioner. The date of superannuation is given as 31st March, 2004.
3. The respondent No. 3, vide his communication bearing No. Estt/Alt-DOB/7013-16 dated 29.03.2004, informed respondent No.4 that in terms of the expert opinion, the alteration has been made in the date of birth and accordingly the petitioner be deemed to have retired from service on 31st March, 2002. The said communication for convenience is reproduced as under;--
Please refer your letter No.TSM/Enf/04/201-02 dated 16.03.04 regarding the subject cited above.
As per the expert opinion given in the alteration in the Date of birth case of SI Mohd. Amin, 4305/NGO vide Director J&K FSL Srinagar's letter No. FSIY522/legal/Sgr dated 19.3.04, the original date of birth of the said SI is 07.03.1944 instead of 07.03.1946. By manipulating alteration in the Date of birth, the officer has already overstayed in the Department two years and the same has been done by the officer with bad intention to gain the monetary benefit by illegal means and as such a Criminal case against the said officer is being registered in concerned police station.
Keeping in view the above facts, said SI be deemed to have been retired from service wef 31.03.02 ie the date of his actual superannuation from services.
4. The petitioner is aggrieved of the said communication and has sought indulgence of this Court for, quashing the said communication, contained in annexure-E and grant of the reliefs as prayed in the petition.
5. The respondents have filed reply. It is profitable to reproduce para-3 of the reply herein;-
31 Para 3 is denied. The date of birth of petitioner was not recorded in his character roll/ service book as 7.3,1946. After observing the tampering in date of birth at Zonal Police Headquarters (ZPHQ) when service book of petition was called from the office of respondent No.4, the service book was sent to the Director, Forensic Science Laboratory FSL, Srinagar where on examination, it was observed that the actual date of birth of petition was recorded as 7.3.1944 and the existing figure (6) has been written-over figure (4). The tampering date of birth has been done at the behest of petitioner alone as it is petitioner alone who gets benefited by the same. In this connection a case FIR No. 19/2004 in Police Station, Rainawari, Srinagar stands already registered. Copy of F.S.L. report is enclosed herewith as annexure (PI) for kind perusal of this Hon'ble Court. It is worthwhile to mention here that the date of birth of petitioner recorded in 'Long Roll' of District Budgam is 7.3.1944 and not 7.3.1946. Photocopy of page Nos. 123 and 124 of the said 'Long Roll' of Budgam for 1996/1997, are enclosed herewith asAnnexures (P2) and (P3) wherein the petitioner figures at S.Nos.ll. As such petitioner is liable to be proceeded against under law for having committed serious offence.
6. The grievance of the petitioner is that he should have been heard before issuing directions as contained in Annexure-E. The petitioner has been condemned unheard. It is mentioned in Annexure-E that the tampering/alteration has been done by the petitioner, thus is stigma against the petitioner. The principles of natural justice demand that petitioner should have been given an opportunity of being heard.
7. Now the question which needs determination is whether the principles of natural justice demand providing of an opportunity of being heard to the petitioner in the given circumstances of the case?
While going through the pleadings of the parties, referred hereinabove, this is not a case of changing date of birth where opportunity was to be given to the petitioner but the meat of the matter is the question of tampering, alteration and manipulation.
8. The question of providing opportunity in terms of principles of natural justice is relatable to the equity jurisdiction. The question is when that can be pressed into service? A person who seeks equity must come with clean hands. Equity cannot be exercised in case of a person who has to derive benefit by tampering whether done by the petitioner himself or by any other person.
9. The Apex Court has observed in judgment reported in AIR 2003 SCW 1561 titled as Canara Bank and Ors. v. Debasis Das and Ors. as under;--
12. Residual and crucial question that remains to be adjudicated is whether principles of natural justice have been violated; and if so, what extent any prejudice has been caused. It may be noted at this juncture that in some case it has been observed that where grant of opportunity in terms of principles of natural justice do not improve the situation, "unless formality theory" can be pressed into service.
10. The Apex Court has observed in case R. Vishwanatha Pillai v. State of Kerala as under;-
19. It was then contended by Shri Ranjit Kumar, learned Senior Counsel for the appellant that since the appellant has rendered about 27 years of service the order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensionery benefits of the appellant. We do not find any substance in this submission, as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. Appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eyes of law. The right to salary or pension after retirement flow from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for Scheduled Caste thus depriving the genuine Scheduled Caste of appointment to that post does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He, who comes to the Court with false claims, cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practicing fraud.
11. If a person obtains appointment or any other benefit by practicing fraud and after noticing the said fraud, the competent authority cancels or withdraws the said benefit, can in the given circumstances the said person claim principles of natural justice. This Court is of the considered view that such person cannot claim opportunity of being heard and cannot use the principles of natural justice as an umbrella just to prevent the competent authority from passing the orders warranted under law without any further delay.
12. If a person obtains a fake or forged, manipulated backward, or any other reserved category, certificate and obtains relief in terms of that certificate, after detecting said fact, the competent authority withdraws the said relief, can such a person claim that he should have been heard before passing such an order? This Court is of the view such a person cannot claim opportunity of being heard while pressing into service the principles of natural justice. If the principles of natural justice will be pressed into service in the said circumstances or in the circumstances of like nature, then what will be the fate of this society. While going through annexure-P2 &P3 (long roll) maintained by the competent authority at Police Lines District Budgam for the year 1996/1997, the date of birth of the petitioner has been given as 7th March, 1944.
13. Mr. Attar while addressing arguments has not made any whisper regarding the said long roll and has not disputed the date of birth recorded in long roll while petitioner was posted at Budgam in terms of annexures-P2 and P3 referred hereinabove, but argued that the petitioner has not made any alteration or manipulation in the record.
14. The police is investigating the matter and it is for the police to investigate that who has made alteration/manipulation so that the culprits can be brought to the book. But the ultimate beneficiary is the petitioner. Thus there is no need to provide an opportunity to the petitioner. It cannot lie in the mouth of the petitioner that the principles of natural justice have been violated.
15. The Division Bench of this Court has observed in case Dr. Harbaksh Singh v. State reported in SLJ 2003IIpage 547 as under:
5.. The learned Single Judge further found that the petitioner, being a party to the fraud in granting the admission in MD Anaesthesia by the Competent Authority, Entrance Examination, is not entitled to any hearing before his admission came to be rescinded in taking a stand that he continued his studies on the basis of the interim order of the Court. In the facts and circumstances of the case, we are, therefore, of the considered opinion that no exception can be taken to the view expressed by the learned Single Judge. We do not find any factual error or jurisdictional infirmity in the order impugned to justify interference in appeal.
16. This court has also observed in case Ghulam Ahmad Bhat v. Life Insurance Corporation of India and Ors. reported in 2001 SLJ 513 as under:
5. Law with respect to forgery and fraud is distinct from ordinary law. The citation referred to by Mr. Qayoom relates to the discharge of a person who was on probation. Law with regard to such discharge is that no enquiry is required to be held. To this general rule, the Supreme Court by virtue of this judgment has carved out an exception that whenever an order is punitive or is based upon some reflections on the work, conduct and character of the employee then an enquiry is to be held and the absolute doctrine of pleasure, which is otherwise available to the employer, is qualified by the condition that an enquiry is to be held. The case in hand is on a distinct footing. Here the petitioner has applied for appointment on the strength of a qualification certificate obtained form a definite institution. That document was found to be fake. Therefore, the appointment itself gets blurred because of this circumstance. This is not an order punitive in nature. What has been done by the impugned order is to bring to an end the employment of the petitioner which is procured through a fake certificate. Whenever a fake certificate is produced, the process of selection is defrauded. Therefore, as and when the factum offakeness of forgery comes to light the employer is justified in withdrawing the order of appointing or discharging the person. Such person cannot invoke the writ process of this Court exercisable in terms of Article 226 of the Constitution because this provides for on equitable relief which cannot be granted to a person who does not come to the court with clean hands.
17. In the given circumstances, the judgments referred by Mr. Attar reported in AIR 1967 SC page 1269 and AIR 1977 J&K page I are distinguishable and are not applicable to the instant case.
18. In view of the above discussion, the writ petition along with all connected CMP(s) is dismissed. Interim direction, if any, shall stand vacated.