Jharkhand High Court
Riyajuddin Ahmad vs Human Resource Development on 19 August, 2014
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (S) No. 4617 of 2013
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Riyajuddin Ahmad ... ...Petitioner
-V e r s u s-
The State of Jharkhand and Ors. ... ...Respondents
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CORAM: - HON'BLE MR. JUSTICE APARESH KUMAR SINGH
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For the Petitioner : - Mr. Manoj Tandan, Adv.
For the Respondent : - Miss Bharti Kumari, JC to Sr.SC-I
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03/19.08.2014Heard learned counsel for the petitioner and the State.
The petitioner has been terminated vide office order contained in Memo No. 846 dated 28.07.2011 allegedly without initiation of any departmental proceeding after eight years of service.
The petitioner had approached this Court earlier against the aforesaid order in W. P. (S) No. 6960 of 2011, which was disposed of as withdrawn giving liberty to the petitioner to prefer representation with proper averments, allegations and annexures before respondent authorities vide judgment dated 17.05.2012. The petitioner's representation has been again rejected vide impugned order dated 22.01.2013 bearing memo no. 107 issued by the Deputy Commissioner, Chatra, Annexure-15. He has sought quashing of the aforesaid orders and consequential reinstatement with back wages.
In short, the petitioner's case is that he was appointed as Assistant Teacher after being successful under the advertisement issued in the year 2002 and the exam i.e. Primary Teacher Selection Competition Examination, 2003 held thereunder by Jharkhand Public Service Commissioner, Ranchi. Upon recommendation of the case of the petitioner, he was issued appointment letter on 24.12.2003, which is Annexure-1 to the writ petition. The petitioner's name is at serial no. 31 and was posted at Primary School, Kolkole, Lavalong in the district of Chatra. Thereafter he remained in service for eight long years.
In the meantime, the respondent conducted an enquiry behind his back and came to a conclusion that the certificate of Teacher Training produced by him was false and fabricated. It is submitted that the petitioner obtained an information under RTI, from Bihar School Examination Board, Patna, which is Annexure-7 to the writ petition on 30.03.2009, which indicated the name of the petitioner, his father's name, his date of birth, roll code, roll no. and marks fetched in examination conducted by the BSEB for the session 1986-88 at Primary Teacher Training College, Dumardaga, Ranchi. It is submitted that in spite of such information provided by the Board itself, the respondents, without initiating any departmental proceeding, terminated the petitioner's services, which is in teeth of the Statutory Rules framed under proviso of Article 309 of the Constitution of India by erstwhile Government of Bihar vide notification dated 16.06.1994, Annexure-16, laying down the service conditions and the procedure for imposing major penalty like dismissal from service upon such an employee.
It is submitted by referring to para-10 to the counter affidavit that there were some discrepancy in the report submitted by one Gautam Singh, the Block Education Extension Officer, Chatra, which shows that the petitioner's name was at serial no. 158 while in case of persons, whose names were at different serial nos. the certificates were found to be forged. Such a state of facts required full dress departmental proceeding for coming to a finding of guilt or misconduct of the petitioner, which may have led the respondents to pass an order of punishment upon him. Therefore, the impugned order of termination of the petitioner's services is bad in law and fit to be quashed.
Learned counsel for the respondents has submitted that terms of appointment letter at Annexure-1 itself indicates that the selected candidates were required to furnish an affidavit that if the certificates/credentials were found to be false, their appointments would also be terminated without any notice or show cause. It is submitted that a detailed enquiry was conducted by the respondent and the petitioner's Teacher Training Certificate was found to be false. Referring to the report of the said Block Education Extension Officer, Chatra at para 10, reliance has also been placed to the verification report of the Bihar School Examination Board received from the Deputy Secretary (Vigilance) of the Board through letter dated 27.09.2008, Annexure-D. Learned counsel for the respondents submitted that the petitioner was issued a show cause and thereafter he submitted his explanation on 17.04.2009 and an information regarding training certificate obtained through RTI from BSEB, Patna was also produced by him. The same were placed before the District Education Establishment Committee, Chatra in meeting dated 29.05.2009. Though the Government Pleader gave an opinion that the matter could be enquired afresh, but in view of the findings recorded during the course of the verification, it was found that the Teacher Training certificate as also the information received from BSEB, Patna under RTI submitted by the petitioner along with show cause was not correct. The enquiry team submitted report to the Deputy Commissioner, Chatra vide District Land Acquisition Officer, Chatra letter dated 09.07.2011 whereunder the training certificate submitted by the petitioner was found to be incorrect and forged. The said enquiry was conducted in respect of several teachers. On such verification, the services of the petitioner and several other persons were terminated as their educational qualifications were found to be false. It is submitted that in terms of conditions stipulated in the appointment letter when the certificate on the basis of which the petitioner had obtained employment was found to be forged, there was no justification for initiation of departmental enquiry against the petitioner. Accordingly, the petitioner's services have been terminated by the impugned order issued on 28.07.2011 and the Deputy Commissioner, Chatra has found no reason to accept the petitioner's representation against the same vide subsequent order dated 22.01.2013, which is also impugned herein. Therefore, the writ petition being devoid of merit should be dismissed.
Upon having considered the rival submissions of the parties and upon going through the relevant materials on records, at the outset, it must be stated that the appointment letter of the petitioner categorically stipulated that upon enquiry and verification, if the educational qualification, teacher training certificate etc. was found to be forged or false, the appointment would be cancelled. There was also stipulation that candidate should give an affidavit to that effect and in case of such cancellation of appointment, the incumbent candidate would also face criminal proceeding for resorting to such document to procure appointment. The petitioner obtained appointment on the strength of a certificate of Bihar School Examination Board relating to Teacher's training. The said certificate was enquired into and verified by the respondents. Though there were some discrepancy earlier in the report submitted by one Gautam Singh, the Block Education Extension Officer, Chatra, but the respondents found the report lacking clarity and accordingly, requested the Deputy Secretary (Vigilance), Bihar School Examination Board, Patna to make available the certificate/ photo copies of the verification report through letter dated 08.09.2008. The same were made available vide letter dated 27.09.2008 and the petitioner's training certificate bearing roll code-1101 and roll no. 269 of the session 1986-88 was found to be issued in the name of other person. Based upon that the petitioner was issued a show cause notice for explaining the discrepancies found in his training certificate. The petitioner has submitted his explanation on 17.04.2009 and also produced information obtained under RTI vide Annexure-7 to the writ petition, before the respondents. Both, the explanation of the petitioner and information obtained under RTI, have been further examined by the respondents and it was found by a team of two officers that not only the petitioner's training certificate but also an information received from the BSEB, Patna under the RTI was not correct. Based upon such report in which the petitioner's certificate was found to be incorrect and forged, a decision was taken by the District Education Establishment Committee to terminate the services of several persons including the petitioner, whose certificates were found to be forged. In such circumstances, the substratum/foundation of the petitioner's appointment were found to be false, consequently no benefit can be claimed on the basis of such an appointment procured. In this regard it is relevant to refer to a judgment rendered by the Honb'le Supreme Court in the case of Devendra Kumar Vs. State of Uttaranchal and Ors. reported in (2013) 9 SCC 363. The Hon'ble Supreme Court in the said case upheld the termination of the said appellant as he had obtained appointment by suppressing material information before the employer. The Hon'ble Supreme Court while dismissing the said civil appeal relied upon the legal maxim as Sublato fundamento cadit opus i.e. a foundation being removed, the superstructure falls. Further reliance was placed on the legal maxim i.e. jus ex injuria non oritur i.e. a person claim any right arising out of his own wrongdoing, cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation. The opinion of the Hon'ble Supreme Court contained at paragraph 13 to 18 and 25 are illuminative on this aspect, which are quoted hereinbelow:-
"13. It is a settled proposition of law that where an applicant gets an office 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." (Vide S.P. Chengalvaraya Naidu v. Jagannath.) In Lazarus Estates Ltd. v. Beasley the Court observed without equivocation that:
(QB p. 712) "... 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."
14. In A.P. State Financial Corpn. v. GAR Re-Rolling Mills and State of Maharashtra v. Prabhu this Court has observed that a writ court, while exercising its equitable jurisdiction, should not act to prevent perpetration of a legal fraud as courts are obliged to do justice by promotion of good faith. "Equity is, also, known to prevent the law from the crafty evasions and subtleties invented to evade law."
15. In Shrisht Dhawan v. Shaw Bros., it has been held as under: (SCC p. 553, para 20) "20. Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct."
16. In United India Insurance Co. Ltd. v. Rajendra Singh this Court observed that "fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine maxim which has not lost temper over all these centuries. A similar view has been reiterated by this Court in M.P. Mittal v. State of Haryana.
17. In Ram Chandra Singh v. Savitri Devi this Court held that "misrepresentation itself amounts to fraud", and further held: (SCC p. 327, para 18) "18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully 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."
The said judgment was reconsidered and approved by this Court in Kendriya Vidyalaya Sangathan v. Girdharilal Yadav.
18. The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit those persons who have frauded or misrepresented themselves. In such circumstances the court should not perpetuate the fraud by entertaining petitions on their behalf. In Union of India v. M. Bhaskaran this Court, after placing reliance upon and approving its earlier judgment in Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi, observed as under: (M. Bhaskaran case, SCC p. 104, para 6) 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.
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 and Lily Thomas v. Union of India.) Nor can a person claim any right arising out of his own wrongdoing (jus ex injuria non oritur)."
The petitioner, therefore, cannot insist that a proper departmental enquiry should have been conducted before his services were terminated by the respondents. His appointment itself being based upon certificate which was found to be forged and fabricated, therefore, no right could flow therefrom to render him to continue in service for number of years.
Accordingly, the writ petition being devoid of merit is dismissed.
(Aparesh Kumar Singh, J.) Kamlesh/