Gujarat High Court
Ram Kishan Khoiwal vs Cotton Corporation Of India Limited. on 21 June, 2018
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/16117/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16117 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
==============================================================
1 Whether Reporters of Local Papers may be
allowed to see the judgment ? No
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the
fair copy of the judgment ? No
4 Whether this case involves a substantial
question of law as to the interpretation No
of the Constitution of India or any order
made thereunder ?
==============================================================
RAM KISHAN KHOIWAL
Versus
COTTON CORPORATION OF INDIA LIMITED.
==============================================================
Appearance:
MR DG SHUKLA(1998) for the PETITIONER(s) No. 1
MR MEHUL M MEHTA(3416) for the RESPONDENT(s) No. 1,2,3,4
==============================================================
CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 21/06/2018
ORAL JUDGMENT
1. Present petition is filed by the petitioner under Articles 14, 16, 21 and 226 of the Constitution of India for the prayers as prayed for inter alia that appropriate writ, order or direction may be issued quashing and Page 1 of 10 C/SCA/16117/2016 JUDGMENT setting aside the termination order passed by the Chief General Manager (HRD) dated 02.03.2016 and also the order passed by the Director (Marketing) dated 18.04.2016 as well as the order passed by the Chairman-cum-Managing Director of the respondent Corporation dated 19.07.2016 at Annexure-A Collectively, on the ground stated in the memo of petition.
2. Heard learned advocate, Shri Harshil Shukla for the petitioner and learned advocate, Shri Mehul Mehta for the respondents.
3. The facts of the case briefly summarized are as follows:
3.1. The petitioner applied pursuant to the public advertisement in the newspaper for the post of Assistant Manager (Marketing). After procedure, the petitioner was selected and was issued appointment letter dated 03.03.2015 to join respondent-Corporation as a Junior Cotton Purchaser. However, as could be seen from the advertisement, at Annexure-B, the criteria has been provided. It provides "qualification and experience." It states that one should have minimum one year of experience in dealing in any agricultural commodities in reputed organization/enterprise. The petitioner had Page 2 of 10 C/SCA/16117/2016 JUDGMENT produced the certificate from the Himmatnagar Co-
operative Agriculture Produce Processing and Sale Society Ltd., Himmatnagar, which is produced at page-32. However, upon scrutiny, it was found that the petitioner does not fulfill necessary criteria, which led to the termination of the order or cancellation of the order on the ground of misrepresentation of the facts regarding experience, which led to filing of this present petition.
4. Learned advocate, Shri Shukla referred to the background of the facts as well as the advertisement, at Annexure-B, to support his contention and submitted that what was required is the experience of minimum one year and it does not refer to in what capacity. He, therefore, submitted that even if the petitioner had worked as a trainee, it would be sufficient and cannot be said to be any false statement.
5. Learned advocate, Shri Shukla has also referred to the other papers and submitted that the experience certificate is not required to be addressed to respondent-Corporation and therefore, certificate which is produced clearly refers to the facts that he has worked from 01.11.2010 to 30.05.2013 and therefore, it should be considered as sufficient. He has also submitted that before passing the impugned order, minimum Page 3 of 10 C/SCA/16117/2016 JUDGMENT opportunity of hearing in compliance with the rules of natural justice ought to have been given. He has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Dipti Prakash Banerjee V/s. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta & Ors. reported in 1999 (3) SCC 60 and pointedly referred to the observations made in paragraphs 18, 19, 23, 41 and 42. He has also submitted that there is no misrepresentation or a false representation, which would justify such termination and therefore, the order is bad.
6. Learned advocate Shri, Mehta for the respondents referred to the papers as well as affidavit-in-reply and submitted that in response to such advertisement at many places the people had applied and some case regarding the experience certificates were scrutinized by the High Courts. He referred to the advertisement at Annexure-B and pointedly referred to clause 14, which reads as under:
"14.If the information furnished by the candidate in any part of online application is found to be false or incomplete or is not found to be in conformity with eligibility criteria mentioned in the advertisement, the candidature/appointment will be considered as revoked/terminated at any stage of recruitment process or after recruitment or joining, without any reference given to the candidate."
Similarly, he referred to clause 15 and 23. He emphasized Page 4 of 10 C/SCA/16117/2016 JUDGMENT on clause 23, which reads as under:
"23. Candidates need not submit/send at any address, application printouts or any certificates or copies thereof at the time of ON-LINE application (No OFF- LINE/hard copy of application will be accepted). Their candidature will be considered on the basis of the information furnished in the ON-LINE application. If at any stage, it is found that any information furnished in the ON-LINE application is false/incorrect or if according to the Management/Selection committee, the candidate does not satisfy the eligibility criteria, his/her candidature/appointment will be cancelled /terminated."
7. Learned advocate, Shri Mehta submitted that the petitioner has claimed about experience and the experience certificate is not specifically addressed about the respondent-Corporation, but it is stated that "TO WHOMSOEVER IT MAY CONCERN." He further submitted that as per the affidavit produced at Annexure-R2, it has been stated on behalf of the respondents' organization or society that the petitioner was not engaged or employed and if the certificate is misused, it will not be their responsibility. He, therefore, submitted that the petitioner is not having any experience and still, he has given such certificate only to get the appointment and therefore it would be void ab initio and any such appointment of Junior Cotton Purchaser by misrepresentation of facts or deliberately fake certificate of experience would dis-entitle him to claim any discretionary relief by this Court and therefore, the Page 5 of 10 C/SCA/16117/2016 JUDGMENT present petition may not be entertained.
8. In view of the rival submissions, it is required to be considered whether the present petition deserves to be entertained.
9. As could be seen from the background of the facts, the issue involved is with regard to the eligibility and the aspect of experience, which the petitioner as a candidate was required to possess as referred to in clause 23, which specifically provides that:
"23. Candidates need not submit/send at any address, application printouts or any certificates or copies thereof at the time of ON-LINE application (No OFF- LINE/hard copy of application will be accepted). Their candidature will be considered on the basis of the information furnished in the ON-LINE application. If at any stage, it is found that any information furnished in the ON-LINE application is false/incorrect or if according to the Management/Selection committee, the candidate does not satisfy the eligibility criteria, his/her candidature/appointment will be cancelled /terminated."
Thus, it reserves the rights to the respondent to cancel the appointment if the details given regarding the qualification are found to be false. The certificate issued by the Himmatnagar Co-operative Agriculture Produce Processing and Sale Society Ltd., Himmatnagar, makes the position clear that the petitioner was not employed or engaged. He may have attended there as a trainee, which cannot be considered to be an experience. Page 6 of 10
C/SCA/16117/2016 JUDGMENT The petitioner has claimed that he was given the salary, which is found to be false as stated by respondent- Corporation that he was not paid any salary nor he was engaged as an employee. This, itself suggest about the false statement made regarding the experience to make himself eligible for the purpose of the appointment.
10. The submissions, which have been made by learned advocate Shri Shukla has to be considered in light of the show cause notice produced dated 01.01.2016 in detail and it has been specifically stated about the false statement made by the petitioner deliberately to get the appointment. Therefore, the submissions made by learned advocate Shri Shukla that experience in whatever capacity has to be considered and it is not necessary that he should have been engaged or employed is misconceived inasmuch as on one hand the petitioner was attending voluntarily as a trainee and on the other hand in the discloser made to the respondent-Corporation he has claimed that he was getting salary, this itself suggests about a positive falsehood declared for the purpose of claiming the appointment. On more aspect which has been emphasized by learned advocate Shri Shukla referring to the observations made in the judgment reported in (1999) 3 SCC 60 has no application to the facts of the case. The Page 7 of 10 C/SCA/16117/2016 JUDGMENT said judgment had a reference to the termination order whether it is a termination simpliciter or it was with a stigma. The issue in the present case is seeking the appointment based on fraud and/or false representation, which is a separate issue altogether. Therefore, the submissions made by learned advocate Shri Shukla referring to the observations made in the judgment reported in (1999) 3 SCC 60 may not have any application and it may not help the petitioner. It has been observed in the said judgment in para-27, which is quoted from the Webster's New World Dictionary suggesting that imputation, mark of disgrace or shame, would be a stigmatic and not a termination simpliciter.
11. Therefore, the observations have been made in the context and background of the facts. In the present case, the issue is altogether with regard to the very basis or the foundation that the appointment has been sought on the basis of false declaration by fraud or misrepresentation. This issue has been considered by the Hon'ble Apex Court time and again and it is no longer res-integra that any such appointment claimed on the basis of misrepresentation or falsehood is void ab initio and the person like petitioner cannot make any claim as such order of appointment itself is bad and illegal and Page 8 of 10 C/SCA/16117/2016 JUDGMENT therefore, any submission made regarding the opportunity or violation of rules of natural justice has no merit. In any case, when the show cause notice has been issued, the petitioner has made further representation or the appeal and the same has been considered. Therefore, any such contention has no merit.
12. The Hon'ble Apex Court in case of Devendra Kumar V/s. State of Uttaranchal & Ors., reported in (2013) 9 SCC 363, has made the following observation expressing the word of caution while exercising the discretion under Article 226 in para-12:
"The issue of obtaining the appointment by misrepresentation is no more res integra. The question is not whether the applicant is suitable for the post. The pendency of a criminal case/proceeding is different from suppressing the information of such pendency. The case is pending against a person might not involve moral turpitude but suppressing of this information itself amounts to moral turpitude. In fact, the information sought by the employer if not disclosed as required, would definitely amount to suppression of material information. In that eventuality, the service becomes liable to the terminated, even if there had been no further trial or the person concerned stood acquittal/discharged..."
Further observed that:
"It is settled proposition of law that where an applicant gets an order by misrepresenting the facts or by playing fraud upon the competent authority, such an order cannot be sustained in the eye of the law. "Fraud avoids all judicial acts, ecclesiastical or temporal."
13. Thus, it is been observed that dishonestly should Page 9 of 10 C/SCA/16117/2016 JUDGMENT not be permitted to bear those persons, who have committed fraud or misrepresented themselves.
14. Thus, if any such indulgence is granted in exercise of discretionary jurisdiction, it would amount to paying premium to the dishonesty. The same view has been reiterated in a subsequent judgment in case of Khub Ram V/s. Dalbir Singh & Ors. with Mahavir Prasad V/s. Dalbir Singh & Ors., reported in (2015) 8 SCC 368. In that case also, it has been observed that the petitioner therein was lacking essential qualification and the certificates were unreliable and therefore, it was held that the person cannot hold the office.
15. It is in these circumstances, the present petition cannot be entertained and deserves to be dismissed and accordingly, stands dismissed. Rule is discharged. Interim relief stands vacated. No order as to costs.
(RAJESH H.SHUKLA, J.) ABHISHEK Page 10 of 10