Allahabad High Court
Amrendra Bahadur Dubey vs State Of U.P. And Ors. on 3 January, 2020
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 3 Case :- SERVICE BENCH No. - 2072 of 1999 Petitioner :- Amrendra Bahadur Dubey Respondent :- State Of U.P. And Ors. Counsel for Petitioner :- D.R.Shukla,Amit Krishan,Praveen Kumar Counsel for Respondent :- B.B.Saxena,Sharad Kumar Srivastava Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
Heard Shri Sanjay Kumar Verma holding brief of Shri D. R. Shukla, learned counsel for the petitioner and Shri Sharad Kumar Srivastava, learned counsel for the respondent.
By means of the present writ petition, the petitioner has challenged the impugned order dated 05.10.1999 passed by Central Administrative Tribunal, Lucknow Bench, Lucknow in Original Application No.313 of 1996.
Fact, in brief, as submitted by learned counsel for the petitioner that on 04.08.1990 the petitioner was appointed as Branch Post Master in Machhili Gaon, District-Gonda under Dying-in-Harness Rules after the death of his father. On 17.06.1993 the petitioner's service was put off by the opposite party no.3 on the charges of mis-appropriation of public money. The opposite party no.3/Superintendent of Post Office, Gonda vide his memo no.L/Ani/18/93-94 dated 11.10.1993 served a charge sheet to the petitioner.
It appears that (a) The petitioner was charged with mis-appropriating between 11.01.1993 and 24.04.1993 a total sum aggregating to Rs.6,000/- representing the amount of six money orders of Rs.1,000/- each. The said amount was refunded to each recipient between 20.07.1993 and 08.08.1993 after a lapse of a few months.
(b) The petitioner was also charged with mis-appropriating between 26.04.1993 and 06.05.1993 a certain amount of money by accepting Rs.10/- each for stamps to be affixed on Eight Regd. Letters given to him for registration by the customers. The petitioner was found to have used defaced postal stamps on these letters. This loss was made good by the petitioner to the Post Office after a lapse of three months on 04.08.1993.
In response to the charges levelled against the petitioner in the charge sheet, he submitted the reply dated 26.10.1993.
The enquiry was initiated against the petitioner by the opposite party no.5 vide his memo no.L/Ani/18/93-94 dated 27-10-93 and Sri P. N. Pandey, Assistant Superintendent of Post Offices was appointed as an Enquiry Officer and Sri Hanuman Singh was appointed as Assistant Enquiry Officer. After conducting the enquiry, the Enquiry Officer submitted his report dated 14.02.1994 stating therein that the guilty of the petitioner, in both the charges levelled against him, has been proved. In consequence of the report of the Enquiry Officer, vide order dated 31.03.1994, Superintendent of Post Offices, Gonda dismissed the petitioner from his services.
Aggrieved by the order dated 31.03.1994, the petitioner made a representation dated 30.11.1994 to the Post Master General, Allahabad & Gorakhpur Region.
Thereafter, the petitioner approached the Central Administrative Tribunal, Lucknow Bench, Lucknow (herein after referred to as "Tribunal") by filing Original Application No.619 of 1995 (in short "O.A."). The Tribunal allowed the O.A. No.619 of 1995 and directed the Post Master General, Gorakhpur Region to decide the petitioner's representation dated 30.11.1994 by way of speaking and reasoned order. By order dated 08.04.1996, the Post Master General, Allahabad/Gorakhpur Region dismissed the petitioner's representation dated 30.11.1994 and confirmed the major penalty of dismissal imposed on the petitioner by order dated 31.03.1994.
Aggrieved by the said facts, the petitioner filed Original Application No.313 of 1996 (Amrendra Bahadur Dubey vs. Union of India & Others) before the Tribunal.
After exchange of the pleadings, the Tribunal, vide order dated 05.10.1999, dismissed O.A. No.313 of 1996 filed by the petitioner. The same was challenged by the petitioner before this Court by means of the present writ petition.
Learned counsel for the petitioner while challenging the impugned order submits that the charges levelled against the petitioner are false and frivolous and there is no mis-appropriation of public money by the petitioner and enquiry was not conducted in consonance of principles of natural justice, as such, the order of dismissal dated 31.03.1994 passed by Superintendent of Post Offices, Gonda, which is utter violation of principles of natural justice, is liable to be interfered.
Learned counsel for the petitioner further submits that the order dated 08.04.1996 passed by the Post Master General, Allahabad/Gorakhpur Region is unsustainable as the concerned authority has passed the same without applying the mind. Accordingly, the prayer is that the present writ petition may be allowed and the impugned orders be set aside/quashed.
Further, submitted that the Tribunal while dismissing the claim petition ignored the relevant aspects of the case including the fact that enquiry was conducted in violation of principles of natural justice and petitioner has not misappropriated the alleged amount, as such, the order of Tribunal is unsustainable in law.
Shri Sharad Kumar Srivastava, learned counsel for the opposite parties submits that the argument raised by learned counsel for the petitioner, that the charges levelled against the petitioner are false and frivolous, is wholly incorrect as the petitioner was charged for misappropriating money paid by the customers by way of money order and enquiry officer after giving reasonable opportunity to the petitioner held the enquiry proceeding and submitted his enquiry report holding that the petitioner is guilty of charges levelled against him and thereafter show cause notice was issued to the petitioner to which he submitted the reply and thereafter he was dismissed vide order dated 31.03.1994, confirmed by the order dated 08.04.1996 passed by Post Master General, Gorakhpur Region. The Tribunal considered the entire aspects of the case and thereafter by recording reasons dismissed the Original Application of the petitioner vide order dated 05.10.1999. Prayer is to dismissed the writ petition.
We have heard learned counsel for the parties and going through the records.
The Tribunal, while passing the judgment dated 05.10.1999, has given the following findings :-
"3. The Enquiry Officer submitted his report dated 14.2.1994 and found the applicant guilty of both the charges. In-consequence of the report of the Enquiry Officer holding the applicant guilty the Superintendent of Post Offices, Gonda Division passed an order on 31.3.1994 dismissing the applicant from service. An opportunity was duly afforded to the applicant and he was furnished with a copy of the Enquiry Report to which he submitted his written reply dated 21.3.1994 which was duly considered by the respondent no. 3 before passing the order of dismissal dated 31.3.1994. The applicant thereafter made a representation dated 30.11.1994 to the Post Master General, Allahabad & Gorakhpur Region (Respondent No. 2). Copy of the applicant's detailed representation is available at Annexure- 10. Thereafter the applicant filed an 0.A. which was registered in this Tribunal as 0.A. No.619/1995 in which this tribunal by order dated 30.11.1995 directed the Post Master General, Gorakhpur Region (Respondent No. 2) to decide the representation dated 30.11.1994 of the applicant by a reasoned and speaking order. The representation of the applicant dated 30.11.1994 was accordingly decided by the Post Master General, Allahabad/Gorakhpur Region by a detailed speaking order dated 08.04.1996. In this order the Post Master General, Allahabad & Gorakhpur Region confirmed the major penalty of dismissal imposed on the applicant by order dated 31.3.1994. In the order dated 8.4.1996 passed by the Post Master General rejecting the applicant's representation dated 30.11.1994, it has been observed that against the penalty of dismissal imposed on the applicant on 31.3.1994 no appeal had been filed by him within the prescribed period. According to the applicant he was not given a reasonable opportunity of hearing nor the opportunity of cross-examining the witnesses on the basis of which the charges were found proved.
4. The penalty of dismissal was imposed and subsequently confirmed by the Post Master General, Allahabad & Gorakhpur Division, the light of the fact that some of the persons who did not receive the amount of the money order had given written statements confirming that the amount of the money order was not delivered to them initially and the said amount was given to them only after lapse of 3 to 4 months. Likewise statement had been given by one of the customers who had booked the Regd. Letters stating that the applicant had collected the sum of Rs.10/- from him in lieu of postage stamps to be affixed on the Regd. Letter. In the light of these facts the Post Master General, Allahabad & Gorakhpur Division in his order dated 8.4.1996 held the applicant guilty of both the charges and confirmed the major penalty of dismissal from service. As regards contention of the applicant that he was not given an opportunity to cross-examine the witnesses, the Post Master General has observed that the opportunity to cross-examine was not availed by the applicant. In this regard, it is also seen that the Enquiry officer conducted a fair enquiry by giving adequate opportunity to the applicant. Before panality of dismissal was imposed on the applicant, he was furnished a report of the Enguiry Officer dated 14.2.1994 to which the applicant also submitted a written reply dated 21.3.1994 in his defence which was duly considered by the respondent no. 3 before passing the order of dismissal. Further the applicant's contention is that he did not affix the used and defaced postage stamps on the Regd. Letters deliberately and knowingly and further that such stamps might häve been affixed on account of poor light in the dingy post office at Machligon, District Gonda, This explanation has been rightly rejecteded by the Post Master General, Allahabad Gorakhpur as untenable specially because defaced stamps could not have been used on all the eight letters because of inadvertence and poor lighting in the Post Office. The contention of the applicant that all the six money orders were delivered by him after Some time lag because as a matter of common practice in the post offices money order forms are generally received in time but the funds for distribution are available after a couple of weeks is also not plausible and hence cannot be accepted. Besides, it is seen that the amount of money order was delivered by the applicant only after a lapse of more than 3 months and not after a lapse of 2 weeks as contented the applicant. Similarly the loss incurred by the post office on account of used and defaced postage stamps on the Regd. Letters was also made good by the applicant only after a period of more than 3 months. Further, it is seen that the applicant was put off duty by order dated 17.6.1993 after investigation in the matter had started. It was only after 17.6.1993 that the applicant refunded the amount of money orders between 20.7.1993 and 8.8.1993 and also made good the loss incurred by use of defaced postage stamps only on 4.8.1993. Thus, the amount of money order was delivered to the recipients and loss on account of use of defaced postage stamps was made good only later after the applicant had already been put off duty. The stand of the applicant that the enquiry conducted was only a mock enquiry and he was not given sufficient opportunity of being heard is also not acceptable because the applicant was duly afforded an opportunity of being heard by the Inquiry Officer during the course of enquiry."
While exercising the power of judicial review under Article 226 of the Constitution of India, the Courts should take note of the settled principles.
It is settled that the scope of interference of the High Court to issue writ of Certiorari sitting under Article 226 of the Constitution of India is very limited as has been discussed by the Hon'ble Supreme Court in the catena of decisions, few of them are being discussed. Reference in this regard may be made to the judgment rendered by Hon'ble Supreme Court by its Full Bench in the case of Syed Yakoob Vrs. K. S. Radhakrishnan and others reported in AIR 1964 SC 477 wherein at paragraph-7 their Lordships have been pleased to hold as follows:-
"7.The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of tact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the. Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was' insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised."
The Hon'ble Apex Court in the case of Swaran Singh and another vrs. State of Punjab and others reported in (1976) 2 SCC 868, their Lordships discussing the power of writ court under Article 226 for issuance of writ of Certiorari has been pleased to hold at para-12 and 13, that certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from Appellate jurisdiction. The writ jurisdiction can extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice. In regard to finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evident which is legally inadmissible or has refused to admit admissible evidence or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law, a pure error of fact, however grave, cannot be corrected by a writ.
In another judgment rendered by the Hon'ble Apex Court in the case of Heinz India Private Limited and another Vs. State of Uttar Pradesh and others reported in (2012) 5 SCC 443, their Lordships has been pleased to hold at para-66 and 67, which is being quoted herein below:-
"66. That the Court dealing with the exercise of power of judicial review does not substitute its judgment for that of the legislature or executive or their agents as to matters within the province of either, and that the court does not supplant "the feel of the expert" by its own review, is also fairly well settled by the decisions of this Court. In all such cases judicial examination is confined to finding out whether the findings of fact have a reasonable on evidence and whether such findings are consistent with the laws of the land.
67. In Dharangadhra Chemical Works Ltd. vrs. State of Saurashtra reported in AIR 1957 SC 264, this Court held that decision of a tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution unless it is shown to be totally unsupported by any evidence.
In the case of Thansingh Nathmal reported in AIR 1964 SC 1419, the Hon‟ble Supreme Court has been pleased to hold that the High Court does not generally determine questions which require an elaborate examination of evidence to establish the right to enforce for which the writ is claimed."
Yet in another judgment rendered by the Hon'ble Apex Court in the case of M/s.Pepsico India Holding Pvt. Ltd. Vrs. Krishna Kant Pandey, (2015) 4 SCC 270 wherein their Lordships while discussing the scope of Article 226 and 227 of the Constitution of India in the matter of showing interference with the finding of the Tribunal has been pleased to hold after placing reliance upon the judgment rendered in the case of Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram, (1986) 4 SCC 447 as follows:
"17. In case of finding of facts, the court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of his Court in Bathutmal Raichand Oswal v. Laxmibai R. Tarta where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J. as the learned Chief Justice then was, observed at p. 1301 of the report as follows: (SCC p. 864, para 7) "The special civil application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application underArticle 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Waryam Singh v. Amarnath that the power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways v. Sukumar Mukherjee to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors. This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bose v. Commr. of Hills Division and it was pointed out by Sinha, J., as he then was, speaking on behalf of the court in that case:
It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority."
Thus, it is settled that if there is any perversity or error apparent on the face of record or the order is without jurisdiction, the High Court may interfere with in exercising of power conferred under Article 226 of the Constitution of India, but according to our considered view, no such ground is available in this writ petition, hence this Court cannot be said as an appellate court to reverse the fact finding given by the Tribunal, which is based upon cogent reasoning depending upon the relevant fact brought before it and also the impugned order is under limits of its authority. In view thereof, the impugned orders passed by the Tribunal does not warrant any interference by this Court.
Thus, keeping in view of the above said facts of the case as well as finding given by the Tribunal while passing the judgment dated 05.10.1999, based on the material on record and principles of law related to interference in the findings of Tribunal in exercise of power under Article 226 of Constitution of India, we are of the considered opinion that the judgment of Tribunal dated 05.10.1999 is not liable to be interfered, more so, the petitioner has committed a fraud and the charges levelled against him have been proved.
It is settled proposition of law that where the petitioner gets an order by making misrepresentation or playing fraud upon the competent Authority, such order cannot be sustained as in the case of S. P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L. Rs. & Ors., AIR 1994 SC 853. In Lazarus Estate Ltd. Vs. Besalay, 1956 All. E. R. 349), it has been held that "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."
In the cases of Andhra Pradesh State Financial Corporation Vs. M/S. GAR Re-Rolling Mills & Anr., AIR 1994 SC 2151 ; and State of Maharashtra & 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 the case of Smt. Shrisht Dhawan Vs. Shaw Brothers, AIR 1992 SC 1555, held as under :-
"Fraud and Collusion vititate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct."
In the case of United India Insurance Co. Ltd. Vs. Rajendra Singh & Ors., (2000) 3 SCC 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 its 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 the case of Union of India & Ors. Vs. M. Bhaskaran, 1995 Suppl. (4) SCC 100, the Apex Court after plaing reliance upon and approving its earlier judgment 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 & 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 also well settled that misrepresentation itself amounts to fraud.
Accordingly, in view of above, we do not find any good ground or reasons to interfere in the matter while exercising the power of judicial review under Article 226 of the Constitution of India and the present writ petition is liable to be dismissed.
In the result, writ petition is dismissed. No order as to costs.
(Saurabh Lavania,J.) (Anil Kumar,J.)
Order Date :- 3.1.2020/Mahesh