Madhya Pradesh High Court
Vinod Singh Tomar vs Union Of India on 9 September, 2015
1
W.A No.130/2015
IN THE HIGH COURT OF MADHYA PRADESH,
BENCH GWALIOR
WRIT APPEAL NO. 130/2015
Vinod Kumar Tomar
Versus
Union of India & others
Present : Hon. Shri R.S.Jha &
Hon. Shri B.D.Rathi, JJ.
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Shri Vijay Sundaram, learned counsel for the
appellant.
Shri Vivek Khedkar, learned counsel for the
respondents/Union of India.
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ORDER
( 09.09.2015 ) Per : R.S.Jha, J :
This appeal has been filed by the appellant under Section 2(1) of the Madhya Pradesh Uchcha Nyalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, being aggrieved by order dated 9.3.2015 passed by the learned Single Judge in W.P No. 7927/2011, whereby the petition filed by the appellant/petitioner challenging the order of his termination dated 2-9-2011 has been dismissed.2 W.A No.130/2015
2. The brief facts leading to filing of the present appeal are that the petitioner participated in the process of selection for appointment on the post of constable in Central Industrial Security Force and pursuant thereto a letter of appointment dated 6-9- 2008 was issued to him with a condition that his appointment would be on probation for a period of two years which could be extended further.
3. Admittedly, the petitioner was required to fill up the character verification form at the time of his appointment which was duly submitted by him, a copy of which has been filed by the respondents alongwith the return as Annexure R-1. During the process of character verification it was reported by the Supdt. of Police, Morena, that the petitioner had been involved in a criminal case which was registered as a Crime No. 35/2005 under Sections 324, 323 and 34 of the IPC and that he was arrested pursuant thereto on 10-3-2005 and was ultimately acquitted on 11-10-2005. As the authorities found that the aforesaid information had not been disclosed and suppressed by the appellant in Column No. 12 of attestation form, therefore, in exercise of powers under Section 25(2) of CISF Rules, 2001 his services were terminated for deliberately suppressing material facts in the attestation form, by the order dated 18-10-2010. The statutory appeal 3 W.A No.130/2015 filed by the appellant against the aforesaid order has also been dismissed by the order dated 2-9-2011 being aggrieved by which the appellant filed a W.P.No. 7927/2011 before the learned single Judge which has also suffered dismissal by the impugned order dated 9-3-2015.
4. The learned counsel appearing for the appellant submits that the petitioner had not deliberately suppressed the material facts in the attestation form and that the said oversight occurred on account of the fact that the offence was petty and that the petitioner had already been acquitted in the same in the year 2005 itself much before the recruitment proceedings were initiated by the respondents. It is submitted that as the suppression was not deliberate and as the petitioner's character during service as probationer with the respondents was exemplary, therefore, the authorities were required to condone the aforesaid lapse on the part of the petitioner. It is further submitted that the petitioner's services were terminated without giving any show cause notice or opportunity of hearing and, therefore, the impugned order was in violation of the principles of Natural Justice, but the learned single Judge has not taken note of the aforesaid aspects while dismissing the petition filed by the appellant.
4 W.A No.130/20155. The learned counsel appearing for the respondents, per contra, submits that the present case is admittedly one where the appellant had suppressed material facts in the attestation form. Learned counsel has taken the Court through the attestation form filed by the appellant, specifically column No. 12 thereof to indicate that the appellant had suppressed material facts in column No. 12 and therefore his services were terminated by the authorities in view of the express condition in paragraph 3 of the attestation form itself which provides that on suppression of any factual information which comes to the notice of the authorities, the services of the person would be liable to be terminated.
6. Learned counsel for the respondents in support of his submissions has relied on the decisions of the Supreme Court rendered in the cases of Devendra Kumar Vs. State of Uttaranchal and others, (2013) 9 SCC 363, Vice-Chairman, Kendriya Vidyalaya Sangthan and another Vs. Girdharilal Yadav, (2004) 6 SCC 325, Mehar Singh Vs. Commissioner of Police, New Delhi and another Vs. Shani Kumar, (2013) 7 SCC 685 and State of M.P. and others Vs. Parvez Khan, 2015(1) MPHT 1 (SC).
5 W.A No.130/20157. Having heard the learned counsel for the parties and after perusing the record it is observed that admittedly, the petitioner was issued a letter of appointment on 6-9-2008 by which he was appointed on probation for a period of two years. It was also undisputed that the appellant, while submitting his attestation form, did not disclose the fact that a criminal case had been registered against him in Column No. 12 of the said form. It is also undisputed that on verification it was found that a criminal case i.e. Crime No. 35/2005 was registered against the appellant in which he was granted bail on 10-3-2005 and was ultimately acquitted in the same on 11-10- 2005.
8. A perusal of the verification form, a copy of which had been filed by the respondents alongwith the return, indicates that a person filling the form has duly forewarned regarding the consequences of suppression of information as is evident from a perusal of paragraphs 1, 2 and 3 of the attestation form which are to the following effect :-
"1. The furnishing of false information or suppression in the Attestation form would be a disqualification and is likely to render the candidate unfit for employment under the Government.
2. If detained, convicted, debarred etc. subsequent to the completion and submission of this form, the details should 6 W.A No.130/2015 be communicated immediately to the authority to whom the Attestation form has been sent earlier failing which it will be deemed to be a suppression of factual information.
3. If the fact that false information has been furnished or that there has been suppression of any factual information, the attestation form comes to notices at any time during the service of a person, his services would be liable to be terminated."
9. In the instant case, when the verification report was called, the Supdt. of Police, Morena, by his report dated 19-12-2009 informed the authorities about the case that had been registered against the appellant and the authorities on finding that the appellant had suppressed the material information in the attestation form, terminated the appellant's services.
10. Law in this regard is settled by a series of decisions rendered by the Supreme Court. In the case of Devendra Kumar (supra), the Supreme Court has discussed the same and held as under :-
"12. So far as the issue of obtaining the appointment by misrepresentation is concerned, it 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 pending against a person might not involve moral turpitude but 7 W.A No.130/2015 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 be terminated, even if there had been no further trial or the person concerned stood acquitted/discharged.
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 eyes of law. "Fraud avoids all judicial acts, ecclesiastical or temporal." (Vide: S.P. Chengalvaraya Naidu (Dead) by LRs. v. Jagannath (Dead) by LRs. & Ors., AIR 1994 SC 853. In Lazarus Estate Ltd.
v. Besalay, 1956 All E.R. 349, the Court observed without equivocation 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."
14. In Andhra Pradesh State Financial Corporation v. M/s. GAR Re- Rolling Mills & Anr., AIR 1994 SC 2151; and State of Maharashtra & Ors. v. Prabhu, (1994) 2 SCC 481, 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 8 W.A No.130/2015 invented to evade law."
15. In Smt. Shrisht Dhawan v. M/s. Shaw Bros., AIR 1992 SC 1555, it has been held as under :-
"20. Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct."
16. In United India Insurance Company Ltd. v. Rajendra Singh & Ors., AIR 2000 SC 1165, 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 & Ors., AIR 1984 SC 1888.
17. In Ram Chandra Singh v. Savitri Devi & Ors., AIR 2004 SC 4096, 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 re-considered and 9 W.A No.130/2015 approved by this Court in Vice-Chairman, Kendriya Vidyalaya Sangathan & Anr. v. Girdharilal Yadav, (2004) 6 SCC 325).
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 & Ors. v. M. Bhaskaran, AIR 1996 SC 686, this Court, after placing reliance upon and approving its earlier judgment in District Collector & Chairman, Vizianagaram Social Welfare Residential School Society v. 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."
19. In Delhi Administration through its Chief Secretary & Ors. v. Sushil Kumar, (1996) 11 SCC 605, this Court examined the similar case where the appointment was refused on the post of Police Constable and the Court observed as under: (SCC p. 606, para 3) "3 ....It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was found physically fit, 10 W.A No.130/2015 passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The Tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offence, the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequence. The consideration relevant to the case is of the antecedents of the candidate. Appointing authority, therefore, has rightly focussed this aspect and found it not desirable to appoint him to the service." (Emphasis added)
20. In Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav, AIR 2003 SC 1709; and A.P. Public Service Commission v. Koneti Venkateswarulu, AIR 2005 SC 4292, this Court examined a similar case, wherein, employment had been obtained by suppressing a material fact at the time of appointment. The Court rejected the plea taken by the employee that the Form was printed in English and he did not know the language, and therefore, could not understand what information was sought.
11 W.A No.130/2015This Court held that as he did not furnish the information correctly at the time of filling up the Form, the subsequent withdrawal of the criminal case registered against him or the nature of offences were immaterial. "The requirement of filling column Nos. 12 and 13 of the Attestation Form" was for the purpose of verification of the character and antecedents of the employee as on the date of filling in the Attestation Form. Suppression of material information and making a false statement has a clear bearing on the character and antecedent of the employee in relation to his continuation in service.
21. In State of Haryana & Ors. v. Dinesh Kumar, AIR 2008 SC 1083, this Court held that there has to be a deliberate and wilful misrepresentation and in case the applicant was not aware of his involvement in any criminal case or pendency of any criminal prosecution against him, the situation would be different.
22. In Secretary, Department of Home, A.P. & Ors., v. B. Chinnam Naidu, (2005) 2 SCC 746, this Court held that facts are to be examined in each individual case and the candidate is not supposed to furnish information which is not specifically required in a case where information sought dealt with prior convictions by a criminal Court. The candidate answered it in the negative, the court held that it would not amount to misrepresentation merely because on that date a criminal case was pending against him. The question specifically required 12 W.A No.130/2015 information only about prior convictions.
23. In R. Radhakrishnan v. Director General of Police & Ors., AIR 2008 SC 578, this Court held that furnishing wrong information by the candidate while seeking appointment makes him unsuitable for appointment and liable for removal/termination if he furnished wrong information when the said information is specifically sought by the appointing authority.
24. In the instant case, the High Court has placed reliance on the Govt. Order dated April 28, 1958 relating to verification of the character of a Government servant, upon first appointment, wherein the individual is required to furnish information about criminal antecedents of the new appointees and if the incumbent is found to have made a false statement in this regard, he is liable to be discharged forthwith without prejudice to any other action as may be considered necessary by the competent authority. The purpose of seeking such information is not to find out the nature or gravity of the offence or the ultimate result of a criminal case, rather such information is sought with a view to judge the character and antecedents of the job seeker or suitability to continue in service. Withholding such material information or making false representation itself amounts to moral turpitude and is a separate and distinct matter altogether than what is involved in the criminal case.
13 W.A No.130/201525. 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. Maj. Gen. Madan Lal Yadav, AIR 1996 SC 1340; and Lily Thomas v. Union of India & Ors., AIR 2000 SC 1650) Nor can a person claim any right arising out of his own wrongdoing (jus ex injuria non oritur)"
11. In the aforesaid decision, the Supreme Court has taken into consideration series of decisions in this regard wherein it has been categorically held that if a person obtains appointment by suppressing material information that act on the part of the employee in suppressing the material information amounts to moral turpitude and the employee is liable to be terminated on this ground of mere suppression of facts itself and the gravity of the criminal offence or acquittal therein has no bearing on this issue. To put it differently, in such cases the issue to be determined by the Court is not the 14 W.A No.130/2015 impact of the gravity of the offence or its relevance for the purpose of employment but the impact of the suppression on the Character and Antecedents of the employee justifying dismissal on account of the loss of confidence in him by the employer. In such cases no relief can be sought or be granted by this Court by taking into consideration the fact that the criminal offence involved is petty in nature or does not involve any moral turpitude. To put it simply, action against the appointee or employee in such cases is taken on account of loss of faith and confidence directly on account of such suppression or false information by the incumbent as it reflects upon the moral character and antecedents of the candidate or the employee as the case may be. Similar view has also been taken by a Division Bench of this Court in W.P.No. 9268/2007(s), decided on 1-11-2007 and by a single Bench of this Court in W.P.No. 7440/2003, decided on 28-6-2007.
12. At this stage we may also consider the consequences of the suppression of fact by the petitioner and as to whether a detailed enquiry is required to be conducted by the authorities before passing any order of termination as contended by the learned counsel for the petitioner. It is pertinent to note that the appellant accepted the offer of 15 W.A No.130/2015 appointment subject to the terms and conditions clearly stated and mentioned in the attestation form with full knowledge of the consequences. Paragraph 3 of the attestation form which has already been quoted in the preceding paragraph clearly stipulates and provides that if there is any suppression of any factual information in the attestation form filled up by the appellant which comes to the notice of the authorities at any time during the service of the person, his service would be liable to be terminated. Note No. 1 appended to column No. 12 of the form also provides that the incumbent filling up the form should see the warning at the top of the attestation form. The facts of the present case also indicate that the details about the criminal case were suppressed by the appellant in the attestation form and in fact the factual aspect is undisputed and undenied. It is not the case of the appellant before this Court that no criminal case was ever registered against him, in fact the averments are to the contrary as it is asserted that the suppression was a mistake. In the circumstances it is apparent that the appellant was forewarned and was well aware that his services would be terminated in case of suppression of facts in spite of which he suppressed information regarding his criminal antecedents.16 W.A No.130/2015
13. The Supreme Court in the case of Kendriya Vidyalaya Sangathan and others Vs/ Ram Ratan Yadav, (2003) 3 SCC 437 has taken into consideration an identical condition in the attestation form and has held that the termination in such cases of suppression is automatic in terms of the aforesaid stipulation contained in the attestation form in the following terms :-
"...The respondent accepted the offer of appointment subject to the terms and conditions mentioned therein with ghis eyes wide open. Para 9 of the said memorandum extracted above in clear terms kept the respondent informed that the suppression of any information may lead to dismissal from service. In the attestation form, the respondent has certified that the information given by him is correct and complete to the best of his knowledge and belief; if he could not understand the contents of columns 12 and 13, he could not certify so. Having certified that the information given by him is correct and complete, his version cannot be accepted. The order of termination of services clearly shows that there has been due consideration of various aspects. In this view, the argument of the learned counsel for the respondent that as per para 9 of the memorandum, the termination of service was not automatic, cannot be accepted."
14. Even in cases where the employee had not been subjected to trial or had been subsequently acquitted or discharged, the Supreme Court has 17 W.A No.130/2015 relied on the legal maxim : Nullus commodum capare potest de injuria sua propria (persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation, Sublato fundamento cadit opus (a foundation being removed, the superstructure falls) and Jus ex injuria non oritur (a person claiming any right arising out of his own wrongdoing cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation), to deny relief in the case of Devendra Kumar (supra).
15. We are also constrained to observe that the appellant is seeking appointment in the police force and therefore even if he had disclosed the material facts regarding registration of the case against him, the authorities would still have had the right to refuse appointment in appropriate cases in view of the law laid down by the Supreme Court in the case of State of M.P. and others Vs. Parvez Khan, 2015(1) MPHT 1 (SC) and Mehar Singh Vs. Commissioner of Police, New Delhi and another Vs. Shani Kumar, (2013) 7 SCC 685.
16. In view of the aforesaid, we do not find any ground to interfere in the impugned order passed by the learned Single Judge. The writ appeal, filed by 18 W.A No.130/2015 the appellant, being meritless is, accordingly, dismissed.
( R. S. JHA ) ( B. D. RATHI )
JUDGE JUDGE
mct