Allahabad High Court
Smt. Urmila & Another vs State Of U.P. & 3 Others on 5 December, 2014
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment Reserved on:20.11.2014 Judgment delivered on 05.12.2014 A.F.R. Court No. - 1 Case :- WRIT - C No. - 55388 of 2014 Petitioner :- Smt. Urmila & Another Respondent :- State Of U.P. & 3 Others Counsel for Petitioner :- Ashish Jaiswal Counsel for Respondent :- C.S.C. Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Ashish Jaiswal, learned counsel for the petitioners and Sri S.S. Shreenet, learned Standing Counsel for the State-Respondents.
2. This writ petition has been filed by the petitioners praying for the following relief:
"(i) issue suitable writ order or direction in the nature of mandamus directing the respondents not to harass or make interferences in the peaceful living of the petitioners pursuant to their legal and valid 'Marriage' and the Hon'ble Court may further be pleased to provide necessary protection to the petitioners so that they may able to lead peaceful and fearless life.
(ii) pass such other and further order as this Hon'ble Court may deem fit and proper under the circumstances of the case.
(iii)Award the cost of the writ petition in favour of petitioners."
3. Briefly stated the facts of the present case are that this writ petition has been filed supported by an affidavit of petitioner No.2 stating that the age of petitioner No.1 girl is 20 years and that of petitioner No.2 is of 28 years.
4. In paragraph No. 4 it is stated that petitioner No.1 has passed Class 8th from Adarsh Krishna Arjun Das Inter College, Mureedpur, Akbarpur, Ramabai Nagar (Kanpur Dehat)and as per scholar's register and transfer certificate issued by the said institution her date of birth is 12.11.1995. A copy of the aforesaid alleged transfer certificate dated 9th July, 2014 has been filed as Annexure-1. It is stated in paragraph Nos. 5 and 6 that petitioner Nos. 1 and 2 both are major and they have married with each other. It is stated in paragraph No. 11 that no criminal case has been registered against the petitioners.
5. By order dated 15th October, 2014 the respondents were directed to file counter affidavit within two weeks. A counter affidavit on behalf of Respondent Nos. 2 and 3 was filed on 17th November, 2014. As prayed by learned counsel for the petitioners two days' further time was granted to file rejoinder affidavit and the matter was directed to put up on 20th November, 2014. However, no rejoinder affidavit has been filed.
6. In paragraph Nos. 4,5,9 and 10 of the counter affidavit respondent Nos. 2 and 3 have stated as under:
"4. That, the contents of paragraph No.3 of the writ petition are false hence denied. In reply it is stated that a First Information Report dated 13.11.2014 under Section 363, 366 IPC, P.S. Derapur, Kanpur Dehat in case crime No. 234 of 2014 is lodged against the petitioner No.2. For kind perusal of this Hon'ble Court a photostat copy of First Information Report dated 13.11.2014 under Section 363, 366, 467, 468 and 420 IPC, P.S. Derapur, Kanpur Dehat in case crime No. 234 of 2014 is being filed herewith and marked as Annexure No. CA-1 to this affidavit.
5. That, the contents of paragraph No.4 of the writ petition are false and as such are not admitted. In reply it is submitted that certificate annexed in para under reply is forged. In this regard Principal of Adarsh Krishan Arjundas Inter College, Kanpur Dehat by his letter dated 13.11.2014, informed that name of Urmila was not recorded/found in the School register. He further stated that no Transfer Certificate bearing SR No. 17815 was issued in favour of Urmila, whereas said certificate was issued in the name of one Deep Singh, Son of Suresh Singh R/o Mutharapur, District Ramabai Nagar. It is also stated during the course of enquiry it was found that petitioner No.1 is minor and her date of birth is 20.07.1999 according to her School Register and Transfer Certificate dated 22.08.2014 issued from the Principal, Janta Junior High School, Sanihapur, Derapur, Kanpur Dehat, from where actually petitioner No.1 is studying. For kind perusal of this Hon'ble Court photostat copies of letter of the Principal of Adarsh Krishna Arjundas Inter College, Kanpur Dehat dated 13.11.2014 and the Transfer certificate bearing SR No. 17815 in the name of Deep Singh, Son of Suresh Singh, R/o Mutharapur, District Ramabai Nagar and the Transfer Certificate of petitioner No.1 issued by Principal, Janta Junior High School, Sanihapur, Derapur, Kanpur Dehat, from where actually petitioner No.1 is studying dated 22.08.2014 are being filed herewith and marked as Annexure No. CA-2 & 3 to this affidavit.
9. That, the contents of paragraph No. 8 of the writ petition as stated are wrong hence denied. Since the girl is minor and being brother and guardian of petitioner No.1, Dheru is entitled for her custody from petitioner No.2 and answering respondents are not harassing any way to the petitioner No.2.
10. That, the contents of paragraph No. 9 of the writ petition are false. It is further stated that as the girl was minor as such marriage was not registered by the Registrar, Hindu Marriage, Kanpur Dehat."
7. The aforenoted contents of the counter affidavit have not been denied or even disputed by the petitioners. A false averment has been made in the writ petition about the date of birth of petitioner No.1 girl that she is major. Similarly a false averment has also been made that no criminal case is registered against the petitioner No.2. A fake scholar's register and transfer certificate bearing Serial No. 17815 of Adarsh Krishna Arjundas Inter Colldge, Muridpur, Akbarpur, Ramabai Nagar has been filed as Annexure No.1 to the writ petition.
8. The respondent Nos. 2 and 3 enquired from the Principal of the institution who informed vide letter dated 13.11.2014 that name of petitioner No.1 was not recorded or found in the scholar's register. He further informed that no transfer certificate was issued in favour of the petitioner No.1 bearing serial No. 17815 and infact a certificate bearing this serial number was issued in the name of one Deep Singh son of Suresh Singh, R/o Mutharapur, District Ramabai Nagar.
9. The respondents, during the course of inquiry found that the petitioner No.1 is a student of Janta Junior High School, Sanihapur, Derapur, Kanpur Dehat. The Principal of this school has issued a certificate verifying that as per school records the date of birth of petitioner No.1 is 20th July, 1999 and she has passed class-6. Thus as per school records of Janta Junior High School, Sanihapur, Derapur, Kanpur Dehat where the petitioner No.1, girl was studying, the age of petitioner No.1 is merely about 15 years. Thus the petitioner No.2 in his affidavit accompanying the writ petition has made false averments with regard to the date of birth of petitioner No.1 and also fraudulently stated that she is major and no criminal case has been registered against him.
10. The respondents have also clearly stated in the counter affidavit that an FIR is registered against the petitioner No.2 under Sections 363/366 IPC, P.S. Derapur, Kanpur Dehat being Case Crime No. 234 of 2014.
11. Thus the writ petition has been filed making false averments and annexing fake papers. The petitioner No.2 deserves no sympathy for these acts.
12. In the case of United India Insurance Company Ltd. V. B.Rajendra Singh and others, JT 2000(3)SC.151, considering the fact of fraud, Hon'ble Supreme Court held in paragraph 3 as under :
"Fraud and justice never dwell together". (Frans et jus nunquam cohabitant) is a pristine maxim which has never lost its temper overall these centuries. Lord Denning observed in a language without equivocation that "no judegment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything"(Lazarus Estate Ltd. V. Beasley 1956(1)QB 702).
(Emphasis supplied by me)
13. In the case of Vice Chairman, Kendriya Vidyalaya Sangathan and Another Vs. Girdhari Lal Yadav, 2004 (6) SCC 325, Hon'ble Supreme Court considered the applicability of principles of natural justice in cases involving fraud and held in paragraph 12 and 13 as under :
"12. Furthermore, the respondent herein has been found guilty of an act of fraud. In opinion, no further opportunity of hearing is necessary to be afforded to him. It is not necessary to dwell into the matter any further as recently in the case of Ram chandra Singh v. Savitri devi this Court has noticed :
"15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together.
16.Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.
It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
18.A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad."
19. In Derry V. Peek (1889) 14 AC 337 it was held: "In an action of deceit the plaintiff must prove actual fraud. Fraud is proved when it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false.
A false statement, made through carelessness and without reasonable ground for believing it to be true, may be evidence of fraud but does not necessarily amount to fraud. Such a statement, if made in the honest belief that it is true, is not fraudulent and does not render the person make it liable to an action of deceit."
14. In the case of Ram Chandra Singh Vs. Savitri Devi and others, 2003(8) SCC 319, Hon'ble Supreme Court held in paragraphs 15, 16, 17, 18, 25 and 37 as under :
"15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together.
16. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
18.A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.
25. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res-judicata.
37. It will bear repetition to state that any order obtained by practising fraud on court is also non-est in the eyes of law."
15. In the case of S.P. ChengalVaraya Naidu (dead) by L.Rs Vs. Jagannath (dead) by L.Rs and others, AIR 1994 SC 853, the Hon'ble Supreme Court held in para 7 as under :
"7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."
16. In the case of Jainendra Singh Vs. State of U.P., 2012 (8) SCC 748, Hon'ble Supreme Court considered the fact of appointment obtained by fraud and held in para 29.1 to 29.10 as under :
"29.1 Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer.
29.2 Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if find not desirable to appoint a person to a disciplined force can it be said to be unwarranted.
29.3 When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry.
29.4 A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services.
29.5 Purpose of calling for information regarding involvement in any criminal case or detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have clear bearing on the character and antecedents of the candidate in relation to his continuity in service.
29.6 The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service.
29.7 The standard expected of a person intended to serve in uniformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted.
29.8 An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, conviction or detention, even if ultimately he was acquitted of the said case, inasmuch as such a situation would make a person undesirable or unsuitable for the post.
29.9 An employee in the uniformed service pre-supposes a higher level of integrity as such a person is expected to uphold the law and on the contrary such a service born in deceit and subterfuge cannot be tolerated.
29.10The authorities entrusted with the responsibility of appointing Constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a Constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of Constable."
17. In view of the above discussions, the writ petition fails and is hereby dismissed.
18. Since the writ petition has been filed accompanied with the affidavit of petitioner No.2 making false averments and annexing fake papers and, as such, writ petition is dismissed with cost of Rs. 25,000/- on the petitioner No.2 which shall be deposited by him within a month with the High Court Legal Cell Aughority, Allahabad.
19. Respondent No.3, Station House Officer, P.S. Derapur, District Kanpur Dehat is directed to produce within a week the petitioner No.1 girl before the concerned Magistrate who shall decide the question of custody of the girl after affording opportunity to the respondent No.4. This order shall be communicated by the learned Chief Standing Counsel to the respondent No.3 within twenty four hours.
Order Date:5.12.2014 MT**