Central Administrative Tribunal - Allahabad
Smt Shivani Sharma vs North Central Railway on 31 January, 2025
O.A./981/2022
(Reserved on 20.01.2025)
Central Administrative Tribunal, Allahabad
Original Application No.981 of 2022
st
Pronounced on this the 31 Day of January, 2025.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Smt. Shivani Sharma D/o Smt Surya Bhashkaran, aged about 34 years,
Ex. Helper Khallasi under SSE (Tele) S & T, N.C. Railway Gwalior, R/O
Railway Quarter RB-1/52, Railway Colony, Gwalior-474002 M.P.
...........Applicant
By Advocate: Shri Anil Kumar Singh
Versus
1. Union of India through the General Manager, North Central
Railway, Subedarganj, Prayagraj-211015.
2. Divisional Railway Manager, North Central Railway, Jhansi.
3. Divisional Signal and Telecommunication Engineer, North Central
Railway, Jhansi.
4. Assistant Divisional Signal and Telecommunication Engineer,
North Central Railway, Gwalior.
5. Assistant Personnel Officer (DRM/P), North Central Railway,
Jhansi.
...Respondents
By Advocate: Smt. Rachna Dubey
ORDER
By Hon'ble Mr. Mohan Pyare, Member (A) Present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
Digitally MADHU signed by KUMARI MADHU Page 1 of 16 KUMARI O.A./981/2022 "8.1 This Hon'ble Tribunal may be pleased to quash the impugned show cause notice dated 20.05.2022 (Annexure no. A-1) and Impugned termination order P/PF/शि.श/S&T dated 08.06.2022 (Annexure No. A-2).
8.2 This Hon'ble Tribunal may be pleased to issue direction to the Respondents to reinstate the Applicant on her previous post and grade with all consequential benefits.
8.3 This Hon'ble Tribunal may be pleased to issue any other suitable order in favour of the applicant as deemed fit in the facts and circumstances of the case.
8.4 This Hon'ble Tribunal may be pleased to award costs of the O.A. in favour of the applicant."
2. Brief facts of the case are that the applicant was appointed as Khalasi Helper in S&T department Jhansi division on 17.07.2017 against LARSGESS Scheme and joined duty on 18.07.2017 at S&T department Gwalior under respondent no.3. Respondent no.3 issued a memorandum of charges in Standard Form (SF-5) dated 13.07.2020 to the applicant based on complaint against her dated 05.06.2018 with the charges that the applicant got appointment in Railway on the basis of forged documents. The applicant denied the charges in her representation. Respondent no.3 started inquiry into the charges levelled against the applicant under Rule 9 of Railway Servant (Disciplinary & Appeal) Rules, 1968 appointing an inquiry officer. The applicant along with her defence counsel was called to attend the inquiry to be held at SSE (Tele) Office Gwalior through notice dated 20.01.2021. While the departmental inquiry was going on, the disciplinary authority i.e. respondent no.3 informed the applicant vide letter dated 14.02.2022 that "due to some administrative and unavoidable reasons" Standard Form (SF-5) bearing no. Jhansi/N/120/G/S.S./Helper/GWL dated 13.07.2020 has been quashed. Subsequently, respondent no.4 issued a Standard Form of "order of suspension" [Rule 5(1) of Railway Servant (Disciplinary & Appeal) Rules, 1968] vide order dated 21.04.2022 to the applicant and placed her under Digitally MADHU signed by KUMARI MADHU Page 2 of 16 KUMARI O.A./981/2022 suspension. Further, respondent no.4 issued one Standard Form No.4 (SF-4) for revocation of suspension order under Rule 5(5) (c) of Railway Servant (Disciplinary & Appeal) Rules, 1968 on dated 19.05.2022 to the applicant. Therefore, the applicant resumed her duty. Thereafter, respondent no.5 issued a show cause notice dated 20.05.2022 to the applicant on the same charge as alleged previously through the charge memo dated 13.07.2020. The applicant submitted her representation dated 02.06.2022 to respondent no.5 against the show cause notice requesting that she should be afforded reasonable opportunity for her defence. Eventually, respondent no.5 terminated the services of the applicant on 08.06.2022.
3. We have heard learned counsel for the parties.
4. Submission of learned counsel for the applicant is that the Disciplinary Authority made the following anomalies/ irregularities, while dealing with the matter against the applicant,
- (A) That the Standard Form (SF) No.-5, prescribed under Rule 9 of "Railway Servant (Disciplinary and Appeal) Rules, 1968", is very clear and self-explanatory and Rule 9 Sub-Rule 7 says that "The disciplinary authority shall deliver or cause to be delivered to the Railway servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the Railway servant to submit a written statement of his defence within ten days or such further time as the disciplinary authority may allow." But the Disciplinary Authority has not shown any name in the list of witnesses (In Segment -4 of article of charges), hence, it remained blank. Meaning thereby, that the aforesaid Disciplinary Authority, willfully left over the said column, in Segment -4 of article of charges, hence it is first anomaly rather an illegality. Per the other hand, it is against the "Principles of natural justice, equality and good conscience; (B) Procedural irregularities are made by the Disciplinary Authority, So it shall be treated as Second anomaly/ Digitally MADHU signed by KUMARI MADHU Page 3 of 16 KUMARI O.A./981/2022 irregularity; (C) In spite of repeated request made by the applicant, vide her request notes dated 02.09.2020, 10.10.2020 and subsequently on dated nil, the correct documents were not provided to her, which were necessary for the preparation of her replies to the memorandum of charges served to her, by Disciplinary Authority on dated 13.07.2020; (D) Rule 9(8) of the Railway Servant (Disciplinary and Appeal) Rules, 1968, clarifies, that "The Railway servant may, for the purpose of his defence submit with the written statement of his defence, a list of witnesses to be examined on his behalf.// Note: If the Railway servant applies in writing for the supply of copies of the statements of witnesses mentioned in the list referred to in sub-rule (6), the disciplinary authority shall furnish him with a copy each of such statement as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the disciplinary authority." Now, it is a well established fact that the Disciplinary Authority has not followed the provisions of prescribed statutory rules and more so, he moved at his own, in an arbitrary and unconstitutional manner, while dealing with the matter of disciplinary proceedings against the present applicant; (E) The respondent no.3 has failed to clarify that under which rule, he quashed the charge-sheet, without any seaking order.
5. Learned counsel for the applicant argues that respondent no.5 has made an encroachment, over the powers of Respondent no.3, while issuing show cause notice to the present applicant as respondent no.5 is not a competent authority, in this regard. The action taken by Respondent no.5, against the present applicant is a clear case of mental harassment which has been initiated only on the basis of forged complaints. The revocation of suspension order has been made on dated 19.05.2022 and on the very next day/dated 20.05.2022, an impugned show cause notice has been issued. Respondent no.5 has issued the aforesaid notice, on the same charges, as previously on dated 13.07.2020 respondent no.3 issued a memorandum of charges to the applicant. The act of Digitally MADHU signed by KUMARI MADHU Page 4 of 16 KUMARI O.A./981/2022 Respondent no.5 is unjustifiable and a violation of procedure for imposing Penalties, as mentioned in the "Railway Servant (Discipline & Appeal) Rules, 1968."
6. It is submitted by learned counsel for the applicant that the applicant was a permanent railway employee at the time when the respondent no. 5 issued the show cause notice and order of termination of services of the applicant. Her NPS contribution was deducted from her salary. Hence, it is illegal and against natural justice to terminate her services without conducting enquiry and affording her reasonable opportunity for her defence. On the other hand Respondent no. 5 not being the appointing/controlling authority of the Applicant is not empowered to terminate the services of the Applicant. Therefore the impugned show cause notice dated 20.05.2022 (Annexure no. A-1) and impugned order of termination of services of Applicant (Annexure no. A-2) is not tenable in the eye of law and deserves to be quashed. It is argued that the order of termination of services of the applicant by Respondent no. 5 is the contravention of Article 311/2 of the constitution of India and Railway Board's letter no. E(D&A)92GS4-3 dated 20.07.1993 RBE 110/1993 through which it is provided that if railway employee who was not qualified as eligible in terms of recruitment rules etc. for initial recruitment in service or had furnished false information or produced a false certificate in order to secure appointment, he should not be retained in service, if he is a probationer or a temporary government employee he should be discharged. If he has become permanent government servant an enquiry as prescribed in Rule 14 of CCS(CCA) Rule, 1965 may be held and if charges are proved he may be removed or dismissed from service. It the light of above rule, it is stated that the applicant was not a probationer at the time, the respondent no. 5 passed an order of termination of services of the applicant who had become permanent employee as such it is entirely illegal to terminate her on 14 days notice without conducting inquiry as prescribed in Railway Servant (Disciplinary and Appeal) Rule 1968.
Digitally MADHU signed by KUMARI MADHU Page 5 of 16 KUMARI O.A./981/2022
7. In support of the pleadings mentioned above, learned counsel for the applicant has put forth some illustrative cases which are as under:
(A) A complaint was found against Shri Ramesh Lal Rawat Chief O. S. under ADEN N. C. Railway, Gwalior alleging he got appointment in Railway on forged caste certificate of Schedule Tribe. But Shr. Ramesh Lal Rawat was issued charge sheet SF- 5 on 27.06.2019 by Sr. DEN (North) Jhansi and conducted enquiry giving him reasonable opportunity for defence. A Copy of charge sheet dated 27.06.2019 issued to Shr. Ramesh Lal Rawat is being filed herewith and marked as Annexure No. A-12 to the compilation No.II of the instant Original Application.
(B) That, similarly a complaint regarding appointment taken on false caste certificate was received against Shri Narayan Das, Tech. I and Shri Brajmohan, Tech. I RSK Sithouli N. C. Railway Gwalior. Both the employees were issued SF-5 charge sheet and DAR inquiry under rules was conducted and they were afforded reasonable opportunity for defence. A Copy of charge sheet SF-5 dated 5/12 Oct. 2017 issued to Shri Narayan Das Tech.I RSK Sithouli is being filed herewith and marked as
8. It has been further contended that the Railway Board vide RBE No. 171/1993 dated 01.12.1993 clarified that "once the proceedings initiated under Rule 9 or Rule 11 of RS (D&A) Rules, 1968 are dropped, the disciplinary authorities would be debarred from initiating fresh proceedings against the delinquent officers unless the reasons for cancellation of the original charge Memorandum for dropping the proceedings are appropriately mentioned and it is duly stated in the order that the proceedings were being dropped without prejudice to further action which may be considered in the circumstances of the case. The Railway Board strictly debarred the disciplinary authorities from initiating fresh proceedings against the delinquent officer, where the proceedings initiated under Rule 9 or Rule 11 of the Rules are dropped or cancelled. As such the impugned show-cause notice Digitally MADHU signed by KUMARI MADHU Page 6 of 16 KUMARI O.A./981/2022 dated 20.05.2022 and impugned termination order dated 08.06.2022 are bad in law and not sustainable in the eye of law.
9. Learned counsel for the applicant avers that it is settled law that no one should be prosecuted twice for the same offence. He has further placed reliance on the following case laws:
(i) In K.R. Deb v. CCE, (1971) 2 SCC 102, the issue that had come up before a constitutional bench of the Hon'ble Apex Court was whether there could be repeated directions for a fresh inquiry when after a proper inquiry the incumbent was exonerated from the charge. Hon'ble Apex Court in that factual matrix, in paragraphs 10 & 12 of the judgment, as reported, observed as follows:
"11. A number of points have been raised before us but we need only mention one point viz that the Collector had no authority to appoint Shri K.P. Patnaik to inquire into the charge after the Inquiry Officers had reported in his favour. It was urged before us that such an inquiry is not contemplated by the Central Civil Services (Classification, Control and Appeal) Rules, 1957. It was contended that Rule 15 of the Classification and Control Rules did not contemplate successive inquiries, and at any rate, even if it contemplated successive inquiries there was no provision for setting aside earlier inquiries without giving any reason whatsoever. It was further contended that the order, dated February 13, 1962, was mala fide.
13. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9."
(ii) in the case of Vijay Shankar Pandey v. Union of India and another: (2014) 10 SCC 589, the Hon'ble Apex Court noticed the law laid down by it in K.R. Deb's case (supra) and, in paragraph 26 of the judgment, as reported, held as follows:
"26. It can be seen from the above that the normal rule is that there can be only one enquiry. This Court has also recognised the possibility of a further enquiry in certain circumstances Digitally MADHU signed by KUMARI MADHU Page 7 of 16 KUMARI O.A./981/2022 enumerated therein. The decision however makes it clear that the fact that the report submitted by the enquiring authority is not acceptable to the disciplinary authority, is not a ground for completely setting aside the enquiry report and ordering a second enquiry."
(iii) In State of Assam v. J.N. Roy Biswas, (1976) 1 SCC 234, Hon'ble Apex Court in paragraph 4 of its judgment, as reported, while noticing the factual matrix of the case, observed/ held as follows:
"4. We may, however, make it clear that no government servant can urge that if for some technical or other good ground, procedural or other, the first enquiry or punishment or exoneration is found bad in law that a second enquiry cannot be launched. It can be; but once a disciplinary case has closed and the official reinstated, presumably on full exoneration, a chagrined Government cannot restart the exercise in the absence of specific power to review or revise, vested by rules in some authority. The basics of the rule of law cannot be breached without legal provision or other vitiating factor invalidating the earlier enquiry. For the present, this is theoretical because no such deadly defect is apparent on the record."
(iv) In Kanailal Bera v. Union of India, (2007) 11 SCC 517, the apex court in paragraph 6 of the judgment, as reported, observed as follows:
"6. Once a disciplinary proceeding has been initiated, the same must be brought to its logical end meaning thereby a finding is required to be arrived at as to whether the delinquent officer is guilty of charges levelled against him or not. In a given situation further evidences may be directed to be adduced but the same would not mean that despite holding a delinquent officer to be partially guilty of the charges levelled against him another inquiry would be directed to be initiated on the selfsame charges which could not be proved in the first inquiry."
(v) In the case of Alok Dey Roy vs. Union of India and Others 2009 (123) FLR 853, the Hon'ble Calcutta High Court has held as under:
[6] In the instant case it appears from the records that the first charge memo when issued, delinquent filed a written statement of defence denying the charges as levelled against him and thereafter withdrawal of the same may be considered is an action under 9(a)(i) of the aforesaid sub-rule, but this could be saved and protected if the rule under Index No. 1033 as introduced is considered. On application of the said Rule under Index No. 1033, namely, disclosure sufficient reasons in the fresh charge memo on withdrawing the earlier charge memo, is a mandatory provision and the respondents Railway Authority Digitally MADHU signed by KUMARI MADHU Page 8 of 16 KUMARI O.A./981/2022 were bound to follow their own rule as framed by the Railway Board. The said Rule is a mandatory provision as per our reading by applying the test of Collector of Monghyr and others as the provision is to safeguard the interest of the delinquent from unnecessary harassment in the service career. ...
[8] Besides the aforesaid Rule, even the decision of the Railway Board is binding to the Subordinate Officers working in the Railway, having regard to the settled principle that when any authority empowered under a statute to issue any order/direction, it is binding to all subordinate departmental employee and is enforceable in the Court of law on considering the same having a statutory flavour..."
The principles deducible upon a conspectus of the authorities noticed herein above are: (a) that on the same charge, in absence of rule to the contrary, only one disciplinary inquiry is permissible unless for some technical or other good ground, procedural or other, the first enquiry or punishment or exoneration is found bad in law; and (b) that on the same charge an employee cannot be prosecuted twice.
10. Submission of learned counsel for the respondents is that the applicant was appointed and posted under the DSTE/Gwalior with the condition that if any documents produced by her is found to be forged, her service will be terminated by giving 14 days notice.
The applicant's High School Mark sheet cum-certificate was examined by the Railway Administration from Madhya Pradesh Bhopal Office of Secondary Education, from which it came to know that the High School Marksheet and certificate submitted by her was found to be forged and fabricated. Subsequently, according to the office letter dated 20.05.2022, 14 days notice was given to Mrs. Sharma (the applicant) with the intention that she should give her clarification within the prescribed period regarding the submission of her High School Certificate/ co-certificate, otherwise your Railway services will be terminated. The applicant did not submit any explanation in respect of her fabricated high school marksheet/ pass certificate. Subsequently, under the terms of appointment letter dated 17.07.2017, her Railway service was terminated vide this office's letter dated Digitally MADHU signed by KUMARI MADHU Page 9 of 16 KUMARI O.A./981/2022 08.06.2022. It is submitted that the applicant has obtained appointment by misleading the Railway Administration and as such as per letter No. E(O)I-2022/PU-2/SR/01 dated 25.01.2022 her appointment was illegal and as such no action could be desired in the case of the applicant as per Railway Servant (Discipline and Appeal) Rules, 1968. Therefore, according to the disciplinary authority's letter dated 14.02.2022, the Standard Form-5 issued to her was withdrawn vide letter dated 13.07.2022 unconditionally and her services have been terminated as per the condition given in the appointment letter. Suspension under Railway Discipline and Appellate Rules 1968 is done on the possibility of misconduct. The applicant was suspended on the basis of probability and her suspension was withdrawn after she was not found guilty of misconduct and therefore, no harassment has been caused to her. The applicant was appointed to the post of Helper by the Appointing Authority/ Assistant Personnel Officer i.e. respondent no.5 and according to the Railway Establishment Rules, the Appointing Authority is the competent authority to give notice or terminate the service of an employee. Since the appointment of the applicant is not legally valid, she cannot be considered as a railway employee. Therefore, a case under the Railway Discipline and Appeal Rules, 1968 is not made out.
11. Learned counsel for the respondents has further placed reliance on the following case laws in support of his contentions:
(i) Judgement of the Hon'ble Apex Court in the case of Union of India & Ors vs. Prohlad Guha etc Civil Appeal Nos. 4434-4437 of 2014 with Civil Appeal No. 4445 of 2014 decided on 01.08.2024 [2024 INSC 563] wherein it has been held in para 14 as under:
"14. The above discussion reiterates that fraud vitiates all proceedings. Compassionate appointment is granted to those persons whose families are left deeply troubled or destitute by the primary breadwinner either having been incapacitated or having passed away. So when persons seeking appointment on such ground attempt to falsely establish their eligibility, as has been done in this case, such positions cannot be allowed to be retained. So far as the submission of non-compliance of the Digitally MADHU signed by KUMARI MADHU Page 10 of 16 KUMARI O.A./981/2022 Rules is concerned, the judgment in Vishwanatha Pillai (supra) answers the question. The respondent-employees in the present case, having obtained their position by fraud, would not be considered to be holding a post for the purpose of the protections under the Constitution. We are supported in this conclusion by the observations made in Devendra Kumar v. State of Uttaranchal. 18 In paragraph 25 thereof it was observed -
"25. More so, if the initial action is not in consonance with law, the subsequent conduct of a party cannot sanctify the same. Sublato fundamento cadit opus -- a foundation being removed, the superstructure falls. A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent court. In such a case the legal maxim nullus commodum capere potest de injuria sua propria applies. The persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation. (Vide Union of India v. Major General Madan Lal Yadav [(1996) 4 SCC 127 : 1996 SCC (Cri) 592 : AIR 1996 SC 1340] and Lily Thomas v. Union of India [(2000) 6 SCC 224 : 2000 SCC (Cri) 1056] .) Nor can a person claim any right arising out of his own wrongdoing (jus ex injuria non oritur)."
(ii) Judgement of the Jodhpur Bench of this Tribunal in OA/290/00477/2015 (Ajmer Singh vs. UOI & ors) pronounced on 21.03.2024 in which the Tribunal has affirmed the decision of the respondents therein and held appropriate the decision to disqualify the applicant from Railway service on the ground of concealment of material facts and providing false information.
(iii) Judgment of the Hon'ble High Court of Allahabad in Writ- A No.-22008 of 2022 (Ramanand Bharti vs. State of U.P. and 2 others) decided on 22.05.2023 wherein relying on various other case laws it has been decided that "16. Thus, where a person secures appointment on the basis of a forged marksheet or certificate or appointment letter and on that basis he or she has been inducted in Government service then he becomes beneficiary of illegal and fraudulent appointment. Such an appointment is illegal and void ab initio. Therefore, holding disciplinary proceedings envisaged by Article 311 of the Constitution of India or under any disciplinary rules including the Uttar Pradesh Basic Digitally MADHU signed by KUMARI MADHU Page 11 of 16 KUMARI O.A./981/2022 Education Staff rules, 1973 or the Uttar Pradesh Government Servant (Discipline and Appeal) Rules 1999, shall not arise."
12. We have considered the rival contentions of learned counsel for the parties and perused the entire documents on record.
13. The applicant's appointment letter dated 17.07.2017 appointing the applicant under the LARSGES Scheme as Helper/DSTE/GWL has made certain stipulations one which clearly states that "8- आपके द्वारा प्रस्तत ु शिक्षा, जाति, अथवा अन्य प्रपत्र सर्विस के दौरान यदि फर्जी पाये जाते है , तो (14) दिन का नोटिस दे कर आपकी सेवा समाप्त कर दी जा सकती है ।" When there was a complaint against the applicant regarding her forged high school marksheet, the same was verified by the department and found to be fabricated. In terms of the conditions laid down in the appointment letter dated 17.07.2017, if any document furnished by the applicant is found to be forged during the service period, the service shall be terminated after serving a 14 days notice. The applicant has been served the 14 days notice vide letter dated 20.05.2022. The applicant has also failed to give any satisfactory explanation as called for by the department in her reply dated 02.06.2022. Instead she has sought a departmental inquiry to enable her to defend her case. Thereafter, vide the order dated 08.06.2022, the services of the applicant have been terminated.
14. The applicant has also placed reliance on various case laws and argued that on the same charge, in absence of rule to the contrary, only one disciplinary inquiry is permissible unless for some technical or other good ground, procedural or other, the first enquiry or punishment or exoneration is found bad in law; and that on the same charge an employee cannot be prosecuted twice. Apparently, in the present case, the charge sheet issued to her on 13.07.2020 has been withdrawn vide letter dated 14.02.2022 citing administrative and unavoidable reasons ("उपरोक्त विषय के सम्बंध में आपको जारी मानक फार्म-5 सं. झांसी/एन/120/जी/एस.एस./है ल्पर/ग्वालियर दिनांक 13.07.2020 को प्रशासनिक एवं अपरिहार्य कारणों से निरस्त किया जाता है ।").
The applicant has also been placed under suspension for concerns Digitally MADHU signed by KUMARI MADHU Page 12 of 16 KUMARI O.A./981/2022 of misconduct but the same was also revoked later on. Thus, the applicant has not been punished twice as alleged by her. The Departmental Inquiry contemplated against the applicant has been withdrawn and no subsequent departmental inquiry has been contemplated against the applicant. The applicant has also not been exonerated of the charges by any specific order. The respondents have decided that the appropriate procedure would be that in terms of the provisions contained in the appointment letter dated 17.07.2017, the applicant's service be terminated after her high school marksheet was found to be forged during scrutiny after affording her a 14 days notice. The letter dated 31.05.2019 by the office of Board of Secondary Education, Madhya Pradesh annexed as annexure CR-2 of the counter reply affirms that the high school marksheet of the applicant has been found fabricated on verification from the Board. Thus, the applicant's reliance on the judgement of the Hon'ble Apex Court in the cases of In K.R. Deb v. CCE, (1971) 2 SCC 102, Vijay Shankar Pandey v. Union of India and another: (2014) 10 SCC 589, State of Assam v. J.N. Roy Biswas, (1976) 1 SCC 234, Kanailal Bera v. Union of India, (2007) 11 SCC 517 have no relevance in the present case. The reliance of the applicant on the case of Alok Dey Roy vs. Union of India and Others 2009 (123) FLR 853 decided by the Hon'ble Calcutta High Court also become fruitless in light of the judgement of the Hon'ble Apex Court in the case of Union of India & Ors vs. Prohlad Guha etc (supra) as cited by the learned counsel for the respondents wherein it has been held that fraud vitiates all proceedings and that employees having obtained their position by fraud, would not be considered to be holding a post for the purpose of the protections under the Constitution. The applicant has not approached this Tribunal with clean hands as observed by the Hon'ble Apex Court in Dalip Singh Vs. State of UP [(2010) 2 SCC 114] which is quoted below:
"1. For many centuries Indian society cherished two basic values of life i.e. "satya" (truth) and "ahimsa" (nonviolence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth Digitally MADHU signed by KUMARI MADHU Page 13 of 16 KUMARI O.A./981/2022 constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, postIndependence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.
x x x x
3. In Hari Narain v. Badri Das [AIR 1963 SC 1558] this Court adverted to the aforesaid rule and revoked the leave granted to the appellant by making the following observations: (AIR p. 1558) "It is of utmost importance that in making material statements and setting forth grounds in applications for special leave made under Article 136 of the Constitution, care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading...
x x x x
7. In Prestige Lights Ltd. v. SBI [(2007) 8 SCC 449] it was held that in exercising power under Article 226 of the Constitution of India the High Court is not just a court of law, but is also a court of equity and a person who invokes the High Court's jurisdiction under Article 226 of the Constitution is duty-bound to place all the facts before the Court without any reservation. If there is suppression of material facts or twisted facts have been placed before the High Court then it will be fully justified in refusing to entertain a petition filed under Article 226 of the Constitution.
This Court referred to the judgment of Scrutton, L.J. in R. v. Kensington Income Tax Commissioners [(1917) 1 KB 486 (CA)] , and observed: (Prestige Lights Ltd. case [(2007) 8 SCC 449] , SCC p. 462, para 35) In exercising jurisdiction under Article 226 of the Constitution, the High Court will always keep in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, then the Court may dismiss the action without adjudicating the matter on merits. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible."
15. R.M. Sahai, J. writing in Shrisht Dhawan (Smt.) v. M/s. Shaw Brothers [(1992) 1 SCC 534] observed -
Digitally MADHU signed by KUMARI MADHU Page 14 of 16 KUMARI O.A./981/2022 "20. Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, 'wing me into the easy-hearted man and trap him into snares'. It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary fraud in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Legal Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. ...From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of a fact with knowledge that it was false.
.....The colour of fraud in public law or administrative law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would not have been exercised. That is misrepresentation must be in relation to the conditions provided in a section on existence or non-existence of which power can be exercised."
16. The words of Denning L.J. in Lazarus Estates Ltd. v. Beasley [(1956) 1 QB 702] are of importance qua the impact of fraud. He wrote -
".....I cannot accede to this argument for a moment. No Court in this land will allow a person to keep an advantage he has obtained by fraud. 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. The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgment, contract and all transactions whatsoever...."
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17. In R. Vishwanatha Pillai v. State of Kerala & Ors., [(2004) 2 SCC 105] a Bench of three learned Judges observed that a person who held a post which he had obtained by fraud, could not be said to be holding a post within the meaning of Article 311 of the Constitution of India. In this case, a person who was not a member of Scheduled Castes, obtained a false certificate of belonging to such category and, as a result thereof, was appointed to a position in the Indian Police Service reserved for applicants from such category.
18. Also, in terms of the Judgement of the Jodhpur Bench of this Tribunal in OA/290/00477/2015 (supra) and judgment of the Hon'ble High Court of Allahabad in Writ- A No.-22008 of 2022 (Ramanand Bharti vs. State of U.P. and 2 others) (supra), if the appointment is obtained on the basis of forged documents, the same is void ab initio and the question of holding disciplinary proceedings as envisaged by Article 311 of the Constitution of India or under any disciplinary rules does not arise.
19. On account of the aforesaid facts, case laws and deliberations, we are of the considered opinion that this case lacks merit and is liable to be dismissed as such. Accordingly, the O.A. is dismissed being devoid of merit. All associated M.A.s also stand disposed of. No costs.
(Mohan Pyare) ( Justice Om Prakash VII)
Member (A) Member (J)
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