Allahabad High Court
Sanjay Kumar vs Chairman Railway Recruitment Cell ... on 20 November, 2017
Bench: Anil Kumar, Daya Shankar Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 7 Case :- SERVICE BENCH No. - 482 of 2016 Petitioner :- Sanjay Kumar Respondent :- Chairman Railway Recruitment Cell North Eastern Railway &Anr Counsel for Petitioner :- Sheikh Wali-Uz Zaman,Virendra Kr. Dubey Counsel for Respondent :- Jyotesna Pal Hon'ble Anil Kumar,J.
Hon'ble Daya Shankar Tripathi,J.
Heard Shri O. P. Srivastava, learned Senior Advocate assisted by Shri Virendra Kumar Dubey, learned counsel for the petitioner, Ms. Jyotesna Pal, learned counsel for the respondent and perused the record.
By means of the present writ petition, the petitioner has challenged the impugned orders dated 29.10.2015 passed by learned Central Administrative Tribunal, Lucknow Bench, Lucknow in Original Application No.495 of 2014 as well as dated 07.12.2015 passed in Review Application No.41 of 2015.
Learned counsel for the petitioner while challenging the impugned orders submits that official respondent issued an advertisement through employment notice no.NER/RRC/D/02/2010 dated 15.12.2010 for appointment on the post of Group 'D'. In pursuance of the same, the petitioner submitted his candidature and admit card was issued to him to appear in the written examination. Thereafter, he was declared successful and called for physical and medical test.
He further submits that prior to the said test, verification of the document submitted by the petitioner was done and his name finds place at Sl. No.790 in the list of selected candidates, but when the final result was published in February 2013, the name of the petitioner was missing from the list of finally selected candidates.
It is further submitted by learned counsel for the petitioner that after issuing a final result of the selected candidates about a period of one year, show cause notice was issued to the petitioner in which it is mentioned that after forensic document verification, the signature on the application form and that on attendance sheet, question booklets, answer sheets are different and the petitioner was given 30 days time to explain as to why his candidature for the above post be not cancelled and he may not be debarred from all RRC examination in future.
In pursuance to the said show cause notice, petitioner filed an affidavit dated 19.02.2014. However, without considering the affidavit filed by him, the impugned order has been passed on 30.09.2014 against the petitioner.
Aggrieved by the said order, petitioner approached the Central Administrative Tribunal, Lucknow Bench, Lucknow, for redressal of his grievances, by filing O. A. No.332/00495/2014, dismissed by order dated 29.10.2015.
Learned counsel for the petitioner has solely argued challenging the order passed by Central Administrative Tribunal that no reasonable opportunity has been given to the petitioner to put forward his case in response to the show cause notice issued to him on 03.02.2014 while in response to the same, an affidavit has been filed by him on 19.02.2014. However, without considering the affidavit, the official respondent has passed an order on 30.09.2014 by which petitioner has been debarred from appearing in all examination conducted by RRB/RRC for life time. As such, the impugned order is in contravention to the principles of natural justice, liable to be set aside.
Ms. Jyotesna Pal, learned counsel for the respondent while defending the impugned order passed by Central Administrative Tribunal has contended that in the matter in question, show cause notice has been issued to the petitioner to submit his reply but he did not submit the same and only affidavit has been filed. Thereafter, considering the affidavit filed by the petitioner as well as report submitted by the Forensic Document Examiner, the impugned order has been passed, so there is no illegality or infirmity in the impugned order and the present writ petition is liable to be dismissed.
We have heard learned counsel for the parties and gone through the records.
As per facts stated herein above in the present case, show cause notice has been given to the petitioner on 03.02.2014, which reads as under :-
"On the basis of the written examination organized by this RRC for selection for the post of Group-''D' posts against Employment Notice No.NER/RRC/D/02/2010 dated 15.12.2010 you were called for the document verification. As confirmed by the Forensic Document Examiner, signature on application form and that on attendance sheet/question booklets/answer sheet were of different person. It has been established that you did not appear yourself in the written examination on your behalf, and thereby tried to procure government job by fraud and criminal means.
You are therefore required to explain within 30 days as to why not your candidature for the above post against the said employment notice be cancelled and action be taken for debarring you from all RRC/examinations for future and to initiate criminal proceeding against you on this matter."
In response to the said show cause notice, petitioner did not submit his reply and only filed an affidavit in which it has been stated that petitioner has passed the examination held on 15.12.2010 having roll no.10610317 and he has put his signature and thumb impression on the written paper and O.M.R. Sheet which were filled up by him and he himself appeared in the said examination.
From the material on record, the position which emerges out is that after taking into consideration the affidavit dated 19.02.2014 submitted by the petitioner as well as report of Forensic Document Examiner, the impugned order has been passed. In this regard, the Tribunal has also given a finding, which is as under :-
" After being found successful in the list of successful candidates after physical efficiency test, the applicant received a notice on 03.02.2014 in which it is indicated that Forensic Document Examiner confirmed that the signature on application form and that on attendance sheet/question booklets/answer sheet were of different person, as such, it is established that applicant did not appear himself in the written examination and he has tried to procure govt. job by fraud and criminal means. The applicant was required to submit the reply within a period of 30 days but instead of submitting the reply, the applicant submitted an affidavit dated 19.02.2014 but the respondents finally passed an order on 30.09.2014, wherein it is categorically mentioned that the reasonable opportunity was extended to the applicant by means of a show cause notice dated 03.02.2014 to present his defence in writing within 30 days but after non-receipt of said representation, the matter was re-examined by the Forensic Document Examiner, wherein it is mentioned that impersonation has conclusively been established beyond doubt, as such, the candidature of the applicant for selection was cancelled and the applicant is also debarred from appearing in the examination to be conducted by the RRB/RRC for life time. The applicant, thereafter, again submitted a representation to the authorities on 17.10.2014 and indicated that the applicant himself has put his thumb impression and signatures on the application form as well as attendance sheet, admit card and other documents as required at the time of written examination. The applicant also requested that final decision in respect of the applicant may only be taken after verification of thumb impression and all his signatures. The case law so relied upon by the applicant of the coordinate bench of this Tribunal at Principal Bench is on different footing. As such, the same are not applicable in the case of the applicant."
Thereafter, petitioner filed a review application, also dismissed by order dated 07.12.2015.
In the instant matter, the sole basis of the passing of the order by the Tribunal is that on the basis of the material on record examined by Forensic Document Examiner, it is clearly established that fraud has been played by the petitioner while submitting his candidature in pursuance of the advertisement dated 15.12.2010 for appointment on the post of Group ''D'. Accordingly, show cause notice was issued to the petitioner as to why he should not be debarred from appearing in all examination conducted by RRB/RRC for life time. Thereafter, he simply submitted an affidavit and after considering the same, an order dated 30.09.2014 has been passed by the official respondent and the same has been affirmed by the Tribunal after recording reasons as stated herein above.
Sole argument has been raised by learned counsel for the petitioner that the impugned order has been passed without giving any opportunity to put forward his case, as such, the same is in contravention to the principles of natural justice and the impugned order under challenge in the present writ petition is liable to be set aside.
Thus, the question which is to be considered is whether the principles of natural justice have been violated in the present case or not..
Natural justice is an important concept in administrative law. In the words of Megarry J it is "justice that is simple and elementary, as distinct from justice that is complex, sophisticated and technical". The principles of natural justice or fundamental rules of procedure for administrative action are neither fixed nor prescribed in any code. They are better known than described and easier proclaimed than defined.
Natural justice is another name for common-sense justice. Rules of natural justice are not codified cannone. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common-sense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.
The expressions "natural justice" and "Legal justice" do not present a watertight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigant's defense.
The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue, its principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed. against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". the classic exposition of Sir Edward Coke of natural justice requires to "vocate, interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works the principles was thus stated:
"Even God himself did not pass sentence upon Adam before he was called upon to make his defense. 'Adam'(says God), 'where art thou? hast thou not eaten of the tree whereof, I commanded thee that thou shouldest not eat ?"
Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.
It is not possible to define precisely and scientifically the expression "natural justice". Though highly attractive and potential, it is a vague and ambiguous concept and, having been criticised as "sadly lacking in precision, has been consigned more than once to the lumber-room. It is a confused and unwarranted concept and encroaches on the field of ethics. Though eminent judges have at times used the phrase "the principles of natural justice", even now the concept differs widely in countries usually described as civilised.
It is true that the concept of natural justice is not very clear and therefore, it is not possible to define it; yet the principles of natural justice are accepted and enforced. In reply to the aforesaid criticism against natural justice, Lord Reid in the historical decision of Ridge V. Baldwin (1963) 2 All ER 66 (HL) observed:
"In Modern times opinions have sometimes been expressed to the effect that natural justice is so vague as to be practically meaningless. But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist......"
Further, Natural justice is a branch of public law. It is a formidable weapon which can be wielded to secure justice to citizens. Rules of natural justice are "basic values" which a man has cherished throughout the ages. They are embedded in our constitutional framework and their pristine glory and primacy cannot be allowed to be submerged by exigencies of particular situations or cases. Principles of natural justice control all actions of public authorities by applying rules relating to reasonableness, good faith and justice, equity and good conscience. Natural justice is a part of law which relates to administration of justice. Rules of natural justice are indeed great assurances of justice and fairness.
The golden rule which stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. Its essence is good conscience in a given situation; nothing more-but nothing less.
As Lord Denning in the case of Kandaa v. Govt. of Malaya, 1962 AC 322 observed that "if the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused person to know the case which is made against him. .He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them."
Hon'ble the Apex Court in the case of Bishambhar Nath Kohli v. State of U.P., AIR 1955 SC 65 held that "in revision proceedings, the Custodian General accepted new evidence produced by one party, but no opportunity was given to the other side to meet with the same. The Supreme Court held that the principles of natural justice were violated."
As stated herein above in the present case, the petitioner has been given reasonable opportunity by way of show cause notice before passing the order dated 30.09.2014 passed by the official respondent. However, he simply filed an affidavit in response to the same. Taking into consideration the said fact, the impugned order has been passed thereby debarring the petitioner from appearing in all examination conducted by RRB/RRC for life time.
Moreover, in the present case, from the material on record, the position which emerges out is that the petitioner has played the fraud, which has been established from the report of Forensic Document Examiner in which it is mentioned that the signature on the application form and that on attendance sheet, question booklets, answer sheets are different. So the said act on the part of petitioner is nothing but amounts to playing fraud with oblique motive. (See S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, AIR 1994 SC 853. In Lazarus Estate Ltd. Vs. Besalay, 1956 All. E.R. 349).
In Andhra Pradesh State Financial Corporation Vs. M/s GAR Re- Rolling Mills & Anr. , AIR 1994 SC 2151; and State of Maharashtra and Ors Vs. Prabhu, (1994) 2 SCC 481, the Apex Court has observed that a writ court, while exercising its equitable jurisdiction, should not act as to prevent perpetration of a legal fraud as the Courts are obliged to do justice by promotion of good faith. "Equity is, also, known to prevent the law from the crafty evasions and subletties invented to evade law."
Hon'ble the Apex Court in Smt. Shrisht Dhawan Vs. Shaw Brothers, AIR 1992 SC 1555 had held as under:-
"Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct."
In United India Insurance Co. Ltd. Vs. Rajendra Singh and others, (2000) 3SCC 581, the Apex Court observed that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost it temper over all these centuries.
The ratio laid down by the Supreme Court in various cases is that dishonestly should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud by entertaining the petitions on their behalf.
In Union of India and Ors. Vs. M. Bhaskaran, 1995, Suppl. (4) SCC 100, the Apex Court, after placing reliance upon and approving its earlier judgement in District Collector & Chairman, Vizianagaram Social Welfare Residential School Society Vizianagaram & Anr. Vs. M. Tripura Sundari Devi, (1990) 3 SCC 655, observed as under:-
"If by committing fraud any employment is obtained, the same cannot be permitted to be countenanced by a Court of Law as the employment secured by fraud renders it voidable at the option of the employer."
Similar view has been reiterated by the Apex court in the case of S. Pratap Singh Vs. State of Punjab, AIR 1964 SC 72; Ram Chandra Singh Vs. Savitri Devi & Ors., (2003) 8 SCC 319; and Vice Chairman , Kendriya Vidyalaya Sangathan and Anr.' Vs. Girdharilal Yadav, (2004) 6 SCC 325.
Thus, "Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter.
It is true that all action against the party which invoke penal or adverse consequences must be taken in accordance with the principles of natural justice but whether any particular principle of natural justice would be applicable to a particular situation or the question whether there has been any infraction of the application of that principle has to be judged into light of the facts and circumstances of each case. If the facts are admitted, undisputed or proved, it is not necessary to issue notice or afford an opportunity of hearing. (See Channabasappa vs. State of Mysore, AIR 1972 SC 32, S. L. Kapoor vs. Jagmohan and others (1980) 4 SCC 379 and Suresh Chandra Mehra vs. Union of India, (1991) 2 SCC 198).
Official respondent on the basis of the report of Forensic Document Examiner had come to the conclusion that petitioner did not appear in the written examination and on his behalf, some other person appeared in the said examination. Even if, an opportunity has been given to the petitioner, then in that circumstances, in no manner, he can establish and prove that report submitted by the Forensic Document Examiner which is sought on his own request is incorrect, on the basis of which, it is established that the petitioner has played fraud while submitting his candidature as per the advertisement issued on 15.12.2010 for appointment on the post of Group ''D'.
Accordingly, the argument advanced by learned counsel for the petitioner, that no adequate opportunity has been given to the petitioner prior to passing of the impugned order, has got no force because from the perusal of the record, the position which emerges out is that show cause notice was given to the petitioner to submit his reply but he submitted an affidavit, so taking into consideration the same as well as report of the Forensic Document Examiner, the impugned order has been passed.
Even otherwise, in the present case, on the basis of the report submitted by the Forensic Document Examiner after verification, it is clearly established that the signature on the application form and that on attendance sheet, question booklets, answer sheets is not of the petitioner and the said fact has been clearly established on the basis of the report cannot be denied by the petitioner in any manner, so we do not find any illegality or infirmity in the impugned order passed by the Tribunal.
In the result, writ petition lacks merit and is dismissed.
Order Date :- 20.11.2017 Mahesh