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Sudhir Kumar v. State Of U.P. Thru' Principal Secretary And Others - WRIT - A No. 38627 of 2007  RD-AH 14283 (20 August 2007)
Court No. 38
Civil Misc. Writ Petition No. 38627 of 2007
State of U.P. and others
Hon'ble V.K. Shukla,J.
Petitioner applied for consideration of his claim for being appointed as Male Police Constable and thereafter petitioner was selected. Petitioner was required to file affidavit qua his character verification and antecedents. In the said affidavit in paragraphs 4,5 and 6, details have been furnished by petitioner in respect of his educational qualification, age and further statement of fact has been mentioned that neither any criminal case has been registered nor any criminal case is pending against him at present moment nor in the past. Categorical mention was made that in case in the event of any statement of fact found to be incorrect then candidature of the petitioner to be cancelled. After said affidavit had been filed, report has been submitted on 18.07.2007 given therein details that petitioner was an accused in Case Crime No. 415 A/ 1993 Under Sections 147,323, 504 and 506 IPC has been registered wherein charge sheet has been filed and on 31.03.1995 he has been acquitted in the said case . In this background averments mentioned by the petitioner have been found to be incorrect and as per term and condition of the affidavit petitioner's service have been dispensed with by S.S.P. Ghaziabad on the ground that petitioner has made wrong declaration, in the affidavit filed. At this juncture present writ petition has been filed.
Sri N.C. Rajvanshi, Senior Advocate, assisted by Sri Manoj Kumar Rajvansi, Advocate, learned counsel for the petitioner contended with vehemence that in the present case said criminal case is of no consequence, inasmuch as petitioner had been arrayed an accused in the said criminal case when he was minor and coupled with this he had been acquitted in the said criminal case by 7th Additional District & Session Judge, Bulandshahar, and as such said criminal case cannot be made foundation and basis for dispensing with the services of the petitioner, in this background order passed is liable to be quashed.
Learned Standing Counsel on the other hand contended that there is deliberate concealment of fact and cancellation of appointment was necessary consequence of the same, and acquittal is of relevance as such view which has been taken is correct view and no interference be made, as such writ petition be dismissed.
Before proceedings to consider the case in hand the view point of Hon'ble Apex Court and this Court is being looked into.
Hon'ble Apex Court in the case of Delhi Administration Vs. Sushil Kumar reported in 1997 SCC (L&S) 492 has taken the view that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post. Para-3 of the aforesaid judgment is being quoted below:
"Verification of the character and antecedents is one of the important criteria to text whether the selected candidates is suitable to a post under the State. Though the respondent was found physically fit, passed the written test and interview and was provisionally selected. On account of his antecedent record, the appointing authority found it is not desirable to appoint a person of such record as a Constable in 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 directing for reconsideration of his case. Though he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant is the conduct of 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 consequences.
Thereafter Hon'ble Apex Court in the case of Kendriya Vidyalaya Sangathan and others Vs. Ram Ratan Yadav reported in JT 2003 (2) SC 256 has reiterated similar view by mentioning that whether the fact that the criminal case was subsequently withdrawn or that the offence charged with was not serious was material. Issue was as to whether material has been suppressed and false statement has been made bearing character and antecedent of respondent. Paragraphs 6, 7 and 8 are being quoted below:-
"6. In order to appreciate the respective contentions advanced on behalf of either side, it is necessary and useful to notice the terms of offer of appointment and useful to notice the terms of offer of appointment and the columns contained in the attestation from Paragraph 8 of the memorandum containing offer to the extent relevant reads.
"If he/she accepts the offer on the terms and conditions stipulated, he/she would send her acceptance immediately to this office on receipt of this memorandum and join the Kendriya Vidyalaya mentioned overleaf. Necessary proforma for the purpose of annexure I to VI and attestation forms are enclosed wherewith which should be submitted to the concerned Principal, after getting the same duly completed in all respects."
Para-9 of the same memorandum is to the following effect
"Suppression of any information will be considered a major offence for which the punishment may extend to dismissal from the service."
The attestation from dated 26.06.1998 duly filled by the respondent and attestation show that the respondent has taken B.A. degree from St. Alyusius College, JBP and B.Ed and M.Ed degrees from R. Durgavati Vishwavidyalaya, JBP Column Nos. 12 and 13 as filled up read thus:-
12. Have you ever been arrested prosecuted/kept under detention or bound down/find convicted by a court of law of any offence? No
13 Is any case pending against you in any court of law at the time of filing up this attestation from. No. "
The respondents has also certified the information given in the said attestation form as under-
"I certify that the foregoing information is correct and complete to the best of my knowledge and belief. I am not aware of any circumstances which might impair my fitness for employment under government."
The memorandum dated 7/8.04.1999 terminating the services of the respondent refers to column nos. 12 and 13 of the attestation form the criminal case registered against the respondent on the basis of the report given to the appellants by IGI Police, suppression of material information by the respondent while submitting attestation form and violating the clause stipulated under para-9 of the offer of appointment issued to him. O.M. dated 01.07.1971 of Cabinet Secretary, Department of Personnel, New Delhi in which it is clearly mentioned furnishing of false information or suppression of factual information in the attestation form would be disqualification and is likely to render the candidate unfit for employment under the government and that as per clause 4 of offer of appointment the respondent was on probation for a period of two years and that his services were liable to be terminated by one moth's notice.
7. It is not in dispute that criminal case registered under Sections 323,341294 and 506-B read with Section 34 IPC was pending on the date when the respondent filled the attestation form. Hence, the information given by the respondent as against column Nos. 12 and 13 as "No" is plainly suppression of material information and it is also a false statement. Admittedly the respondent is holder of B.A. B.Ed and M.Ed degrees. Assuming even his medium of instruction was Hindi throughout, no prudent man can accept that he did not study English language at all at any stage of his education. It is also not the case of his education. It is also not the case of respondent that he did not study English at all. It he could understand column nos. 1-11 correctly in the same attestation form. It is difficult to accept his version that he could not correctly understand the contents of column Nos. 12 and 13. Even otherwise, if he could not correctly understand certain English words, in the ordinary course he could have certainly taken help of somebody. This being the position the Tribunal was right in rejecting the contention of the respondent and the High Court committed a manifestly error in accepting the contention that because the medium of instructions of respondent was Hindi, he could not understand the contents of column nos. 12 and 13. It is not the case of column Nos. 12 and 13 are left blank. The respondent could not have said "no" as against column nos. 12 and 13 without understanding the contents. Subsequent withdrawal of criminal case registered against the respondent or the nature of offences. In our opinion were not material. The requirement of filling column nos. 12 and 13 of the attestation form was for the purpose of verification of character and antecedent of the respondent as on the date of filling and attestation of the form. Suppression of material information and making a false statement has a clear bearing on the character and antecedents of the respondent in relation to his continuance in service.
8. The object requiring information in columns 12 and 13 of the attestation form and certification thereafter by the candidate was to ascertain and very the character and antecedents to judge his suitability to continue in service. A candidate having suppressed material information and or giving false information cannot claim right to continue in service. The employer having regard to the nature of the employment and all other aspects had discretion to terminate his services, which is made expressly clear in para 9 of the offer of appointment. The purpose of seeking information as per columns 12 and 13 was not to find out either the nature or gravity of the offence or the result of a criminal case ultimately. The information in the said columns was sought with a view to judge the character and antecedents of the respondent to continue in service or not. The High Court, in our view, has failed to see this aspect of the matter. It went wrong in saying that the criminal case had been subsequently withdrawn and that the offences, in which the respondent was alleged to have been involved, were also not of serious nature. In the present case the respondent was to serve as physical education teacher in Kendriya Vidyalaya. The character, conduct and antecedent of a teacher will have some impact on the minds of the students of impressionable age. The appellants having considered all the aspects passed the order of dismissal of the respondent from service. The Tribunal after due consideration rightly recorded a finding of fact in upholding the order of dismissal passed by the appellants. The High Court was clearly in error in upsetting the order of the Tribunal. The High Court was again not right in taking note of the withdrawal of the case by the State Government and that the case was not a serious nature to set aside the order of the Tribunal on that ground as well. The respondent accepted the offer of appointment subject to the terms and conditions mentioned therein with his 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 column nos. 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."
The Division Bench of this Court in the case of Ramesh Prasad Patel Vs. Union of India and others reported in [2006(3) ESC 1669 (All)(DB)] has taken the view that antecedent, conduct /character of candidate to be appointed to service is of paramount consideration, and not the result of criminal case, in which he has been involved and as petitioner had not furnished information sought at the time of enrolment, as such dispensation of service cannot be said to be illegal. Relevant paragraphs 6 to 26 of the aforesaid judgment is being quoted below:
"6. The application form had been filled up by the appellant in 1986 wherein column no. 8 requires the applicant to furnish the information as to whether the applicant had ever been imprisoned or had been put under trial for any offence or any complaint or report had ever been made against the applicant to the Magistrate or Police for any offence. The petitioner-appellant filled up the said column by writing the word ''no'. Therefore, there is no dispute that he had not furnished the correct information sought for in this regard. The application form had been filled up by someone else in English but has been signed by the appellant himself. The appellant had been tried in a criminal case which has subsequently been decided vide judgment and order dated 12.07.1995 (Annex.4), wherein he stood convicted for the offence punishable under Section 379 IPC, however, he has been given the benefit of the provisions of Act 1958. It has further been observed that the conviction would not adversely affect his civil rights in view of the provisions of Section 12 of the Act 1958.
It is settled proposition of law where an applicant gets an order office by making misrepresentation or playing fraud upon the competent Authority, such 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. Vs. Jagannath (Dead) by LRs. & ors., AIR 1994 SC 853. In Lazarus Estate Ltd. Vs. 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."
In 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 Hon'ble 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 sub-letties invented to evade law."
In Smt. Shrisht Dhawan Vs. M/s. Shaw Bros., AIR 1992 SC 1555, it has been held as under:-
"Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct."
In United India Insurance Company Ltd. Vs. Rajendra Singh & Ors., AIR 2000 SC 1165, 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. Similar view has been reiterated by the Hon'ble Supreme Court in M.P. Mittal Vs. State of Haryana & Ors., AIR 1984 SC 1888.
The ratio laid down by the Hon'ble Supreme Court in various cases is that dishonesty 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 Union of India & ors. Vs. M. Bhaskaran, 1995 Suppl. (4) SCC 100, the Apex Court, after placing reliance upon and approving its earlier judgment in District Collector & Chairman, Vizianagaram Social Welfare Residential School Society 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 S. Partap 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.
The Common Law doctrine of public policy can be enforced wherever an action affects/ offends public interest or where harmful result of permitting the injury to the public at large is evident.
More so, if initial action is not in consonance with law, the subsequent conduct of a party cannot sanctify the same. Subla Fundamento cedit 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 legal maxim Nullus Commodum capere Potest De Injuria Sua Propria applies. (Vide Union of India Vs. Maj. Gen. Madan Lal Yadav, AIR 1996 SC 1340).The violators of law cannot be permitted to urge that their offence cannot be subject matter of inquiry, trial or investigation. (Vide Lily Thomas Vs. Union of India & Ors., AIR 2000 SC 1650).
Nor a person can claim any right arising out of his wrong doing. (Juri Ex Injuria Non Oritur).
In Delhi Administration through its Chief Secretary & Ors. Vs. Sushil Kumar, (1996) 11 SCC 605, the Hon'ble Supreme Court examined the similar case where the appointment was refused on the post of Police Constable and the Court observed as under:-
"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, 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."
In Kendriya Vidyalaya Sangathan Vs. Ram Ratan Yadav, AIR 2003 SC 1709; and A.P. Public Service Commission Vs. Koneti Venkateswarulu, AIR 2005 SC 4292, the Hon'ble Supreme Court examined a similar case, wherein, the employment had been obtained by suppressing the material fact that criminal proceedings were pending against him 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 have good knowledge of that, and therefore, could not understand as what information was sought. The Apex 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 continuance in service.
The submission made by the learned counsel for the appellant to the effect that the impugned orders could not have been passed without giving him an opportunity is also preposterous for the reason that in such case where an order is obtained by misrepresentation or fraud, the principles of natural justice are not attracted to rectify the mistake which the Authority had committed because of the fraud played by the applicant. In such eventualities, termination is automatic.
In State of U.P. Vs. Om Prakash Gupta, AIR 1970 SC 679, the Hon'ble Apex Court had observed that Courts have to examine whether the non-observance of any statutory provision or principle of natural justice have resulted in deflecting the course of justice. In S.L. Kapoor Vs. Jagmohan & Ors., AIR 1981 SC 136, the Hon'ble Supreme Court has held that where from admitted or undisputed fact, only one conclusion is possible and under the law only one course is permissible to be adopted, the Court should not enforce the observance of principles of natural justice for the reason that it would amount to issuing a futile writ.
In A.K. Kraipak & Ors. Vs. Union of India & Ors., AIR 1970 SC 150, the Hon'ble Supreme Court observed as under:-
"The aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in the areas not covered by any law validly made. In other words, they do not supplant the law of the land but supplement it.... Whenever a complaint is made before the Court that some principles of natural justice had been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case."
Therefore, whether the principles of natural justice should be applied in a given case, depends upon the facts and circumstances of that case. In case the principles have not been applied but if even after their observation result could have been the same, enforcing the observance of such principles would be a futile exercise. (Vide Khem Chand Vs. Union of India & Ors., AIR 1958 SC 300; and Laxmi Shankar Pandey Vs. Union of India & Ors., AIR 1991 SC 1070.
In the instant case, as it remained undisputed and undeniable that petitioner had not furnished the information sought at the time of enrolment correctly, we are unable to imagine as how the application of principles of natural justice would materially alter the result of the case.
In U.P. Junior Doctors Action Committee Vs. Dr. B. Sheetal Nandwani & Ors., AIR 1991 SC 909, the students had got admission in M.B.B.S. Course by making misrepresentation. The Hon'ble Supreme Court rejected the plea of applicability of the Rules of Natural Justice observing that under the circumstances in which such benefit had been taken by the candidates concerned, do not justify attraction of the Rules of Natural Justice by providing them an opportunity of hearing. Even in a case where an applicant may not be responsible for playing fraud, his appointment can, also, be cancelled without affording an opportunity of hearing to him in case the Authority comes to the conclusion that the appointment had been made by playing fraud by the Members of the Selection Committee though the candidate had not played any part/mischief in the said selection in Krishan Yadav Vs. State of Haryana & Ors., AIR 1994 SC 2166, the Hon'ble Apex Court observed that when the entire selection was stinking "conceived in fraud and delivered in deceit", individual's innocence has no place as fraud unravels everything.
The ratio laid down by the Hon'ble Supreme Court in various cases is that dishonesty 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.
Thus, it is the antecedent, conduct or character of the candidate to be appointed to the services which is of paramount consideration, not of the result of the criminal case in which he has been involved.
In view of the above, the appellant has obtained the employment by misrepresentation, i.e., suppressing the material information sought by the appointing authority. The information was required to verify his character and antecedents. Thus, neither the result of the prosecution nor the nature of the offence, in which he had been involved, has any bearing on the case."
The Division Bench of this Court in the case of Ashok Vs. DIG CRPF decided on 16.12.2005 in Special Appeal No. 335 of 2005 has taken the view that whenever person is appointed in government service he is required to give declaration regarding character and antecedent and the same is one of the most important criteria to test whether selected candidature is entitled for post under State. It has been held that when incorrect declaration has been made then incumbent disqualifies himself for being appointed specially when appointment is in respect of force.
Hon'ble Apex Court in the case of Shiv Kant Yadav Vs. Indian Oil Corporation 2007 AIR SCW 2154 has considered in extenso, the fact of making wrong statement and the effect of the same. The requirement is to disclose true and correct fact which has not been done. In view of the undertaking that if any factual misstatement or declaration is made, allotment may be cancelled , the order of High Court warrants no interference.
On the touch stone of the view taken above the fact of the present case is being adverted to. In the present case undisputed factual position which is emerging is that petitioner had been arrayed an accused and has been acquitted. Petitioner at the point of time of furnishing affidavit concealed the correct fact and mentioned that he was not an accused in any criminal case, and neither at present nor in the past any criminal case has been registered against him. In verification proceedings contents of the affidavits has been found to be incorrect as such as per undertaking given by the petitioner his services has been dispensed with. Much reliance has been placed by the petitioner in the case of Qamral Hoda Vs. The Chief Security Commissioner, N.E. Railway Gorakhpur reported in ALR 1997 (30) 661; judgment in the case of Rishi Pal and others Vs. state of U.P. in Civil Misc. Writ Petition No. 1047 of 1999 dated 10.01.2001; judgment in the case of Special Appeal No. 999 of 2001 S.P. Pauri Garhwal Vs. Shdev Prasad decided on 15.09.2004. Aforesaid judgements will not come to rescue of the petitioner in view of the judgement of Hon'ble Apex Court wherein categorical view has been taken that wrongful disclosure has it own consequences and equity has not role to play in the same. The fact of the matter is that petitioner had knowledge of the criminal case then he ought to have rightfully disclosed said facts even disclosing that he has been acquitted.
Once admitted position is that wrong declaration has been made then on the basis of wrong declaration being made if appointment has been cancelled, then there is no infirmity in the same.
Consequently present writ petition is dismissed.
No orders as to cost.
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