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No. 871181334 Ex.Ct.Sheo Govind Singh v. Inspector General Of Police Cs,Srpf Lucknow & Another - WRIT - A No. 30768 of 1999  RD-AH 43 (2 September 1999)
COURT NO. 34
CIVIL MISC. WRIT PETITION NO. 30768 OF 1999
No. 87181335 Ex Ct. Sheo Govind Singh ------ Petitioner
Inspector General of Police,
CS, CRPF, Lucknow & Anr. ----------- Respondents
Hon'ble Dr. B.S. Chauhan, J.
Hon'ble Shishir Kumar, J.
(By Hon'ble Dr. B.S. Chauhan, J.)
This writ petition has been filed for quashing the order dated 20.1.1988 (Annex 1), by which the services of the petitioner were terminated and order dated 3.6.1999 (Annex. 5), by which his appeal has been dismissed.
The facts and circumstances giving rise to this case are that petitioner was recruited on the post of Constable in the Central Reserve Police Force ( in short, CRPF) in 1987. His services had been terminated vide impugned order dated 20.1.1988 on the ground that he had obtained the employment by misrepresentation. While filling up the application form for the post, every applicant was asked to furnish the particulars as to whether he had ever been implicated in any criminal case. Petitioner filled up the relevant column in negative, and as subsequently, on inquiry while verifying his character, it came in the knowledge of the appointing authority that he had been involved in a Criminal Case No. 42 of 1987, under Sections 279, 337, 506 I.P.C., P.S. Kandhai, District Pratapgarh, his services were terminated vide order dated 20.1.1988 (Annex. 1). Being aggrieved, petitioner preferred an appeal in 1998/asked for reinstatement, which has been dismissed by the appellate authority vide impugned order dated 3rd June, 1999 (Annex. 5). Hence this petition.
It is submitted on behalf of the petitioner that order of termination could not have been passed without giving opportunity of hearing to him. Petitioner had not been involved in a case involving moral turpitude. More so, he has been acquitted in the said case, therefore, the suppression of material information, even if it was done deliberately, did not warrant termination of his services. After acquittal in the said case, his involvement stood washed off, and therefore, it was neither desirable nor permissible to pass the order of termination of his services. More so, the appointing authority did not consider the appeal in correct prospective and dismissed it without giving any reason. As petitioner had been acquitted of the charges in the criminal case, he was entitled for reinstatement. Hence both the orders impugned are liable to be quashed.
On the other hand, Shri N.K. Chatterji, learned counsel for the respondents has submitted that suppression of the information sought by the appointing authority at the initial stage itself amounts to indulging in moral turpitude. Thus, it was totally irrelevant as to whether petitioner had been involved in a criminal case involving moral turpitude or not. It is the antecedents of the applicant and not the result of the case, which is the decisive factor. He was acquitted in the criminal case vide judgment and order dated 26.11.1990, i.e., after 12 years of his termination. Petitioner did not file any appeal against the said order of termination, rather applied for reinstatement on 4.12.1998 as he was acquitted of the criminal charges. The said application was rejected vide order dated 3.6.1999 (Annex. 5). He could not claim his reinstatement as he was not removed on the ground of pendency of the criminal case against him. More so, another Criminal Case No. 79A of 1986 under Sections 147, 148, 149, 324, 504 and 506 I.P.C. was also pending against the petitioner. Thus, no interference is called for in equity jurisdiction. In addition thereto, a preliminary objection has been raised by Shri Chatterji that the writ petition itself is not maintainable. Though no such ground has been taken in the counter affidavit, but he raised prime issue that as Union of India has not been impleaded in the array of parties as respondent, the writ petition itself is not liable to be entertained. The petition is liable to be dismissed.
We have considered the rival submissions made by the learned counsel for the parties and perused the record.
In Ranjeet Mal Vs General Manager, Northern Railway, New Delhi & Anr, AIR 1977 SC 1701, the Hon'ble Apex Court considered a case where the writ petition had been filed challenging the order of termination from service against the General Manager of the Northern Railways without impleading the Union of India. The Apex Court held as under:
"The Union of India represents the Railway Administration. The Union carries administration through different servants. These servants all represent the Union in regard to activities whether in the matter of appointment or in the matter of removal. It cannot be denied that any order which will be passed on an application under Article 226 which will have the effect of setting aside the removal will fasten liability on the Union of India, and not on any servant of the Union. Therefore, from all points of view, the Union of India was rightly held by the High Court to be a necessary party. The petition was rightly rejected by the High Court."
While considering the similar view in Chief Conservator of Forests, Government of A. P. Vs. Collector & Ors; (2003) 3 SCC 472, the Hon'ble Supreme Court accepted the submission that writ cannot be entertained without impleading the State if relief is sought against the State. The Hon'ble Apex Court had drawn the analogy from Section 79 of the Code of Civil Procedure, 1908, which directs that the State shall be the authority to be named as plaintiff or defendant in a suit by or against the Government and Section 80 thereof directs notice to the Secretary of that State or the Collector of the district before the institution of the suit and Rule 1 of Order 27 lays down as to who should sign the pleadings. No individual officer of the Government under the scheme of the constitution nor under the Code of Civil Procedure, can file a suit nor initiate any proceeding in the name and the post he is holding, who is not a juristic person.
The Court also considered the provisions of Article 300 of the Constitution which provide for legal proceedings by or against the Union of India or State and held that in a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be; in the case of the Central Government, the Union of India and in the case of State Government, the State, which is suing or is being sued.
Rule 1 of Order 27 only deals with suits by or against the Government or by officers in their official capacity. It provides that in any suit by or against the Government, the plaint or the written statement shall be signed by such person as the Government may like by general or special order authorise in that behalf and shall be verified by any person whom the Government may so appoint. The Court further held as under:-
"It needs to be noted here that a legal entity - a natural person or an artificial person- can sue or be sued in his/its own name in a court of law or a tribunal. It is not merely a procedural formality but is essentially a matter of substance and considerable significance. That is why there are special provisions in the Constitution and the Code of Civil Procedure as to how the Central Government or the Government of a State may sue or be sued. So also there are special provisions in regard to other juristic persons specifying as to how they can sue or be sued. In giving description of a party it will be useful to remember the distinction between misdescription or misnomer of a party and misjoinder or non-joinder of a party suing or being sued. In the case of misdescription of a party, the court may at any stage of the suit/proceedings permit correction of the cause-title so that the party before the court is correctly described; however, a misdescription of a party will not be fatal to the maintainability of the suit/proceedings. Though Rule 9 of Order 1 CPC mandates that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, it is important to notice that the proviso thereto clarifies that nothing in that Rule shall apply to non-joinder of a necessary party. Therefore, care must be taken to ensure that the necessary party is before the court, be it a plaintiff or a defendant, otherwise, the suit or the proceedings will have to fail. Rule 10 Of order 1 CPC provides remedy when a suit is filed in the name of the wrong plaintiff and empowers the court to strike out any party improperly joined or to implead a necessary party at any stage of the proceedings."
The Apex Court thus held that writ is not maintainable unless the Union of India or the State, as the case may be, impleaded as a party.
A Full Bench of Kerala High Court in Kerala State Vs. General Manager, Southern Railway, Madras, AIR 1965 Ker 277 held that suit is not maintainable if instituted against Railway Administration. The condition precedent for its maintainability is that it must be instituted against the Union of India.
A similar view has been reiterated by Hon'ble Apex Court in The State of Kerala Vs. The General Manager, Southern Railway, Madras, AIR 1976 SC 2538.
The Constitution Bench of the Hon'ble Supreme Court in State of Punjab Vs. O.G.B. Syndicate Ltd., AIR 1964 SC 669, held that if relief is sought against the State, suit lies only against the State, but it may be filed against the Governmet if the Government has acted under the colour of legal title and not a Sovereign Authority.
Undoubtedly non-impleadment of the necessary party is fatal as provided by the proviso to Order 1, Rule 9 C.P.C., but application for impleadment can be made even at a later stage or before the appellate forum also as held by the Hon'ble Supreme Court in Bal Niketan Nursery School Vs. Kesari Prasad, AIR 1987 SC 1970. In the instant case, in spite of such serious arguments on the issue, learned counsel for the petitioner did not ask for time to move application for impleadment of the Union of India.
The Rajasthan High Court in Pusha Ram Vs. Modern Construction Co. (P) Ltd, AIR 1981 Raj 47, held that to institute a suit for seeking relief against the State, the State has to be impleaded as a party. But misdescription showing the State as Government of the State may not be fatal and the name of party may be permitted to be amended, if such an application is filed.
Thus, we reach the inescapable conclusion that the writ is not maintainable against the Government officers or the employees of the State, it lies only against the State/Union of India and if State is not impleaded, the writ is not maintainable.
In view of the above, we are of the considered opinion that the writ petition itself is not maintainable as Union of India has not been impleaded as a party respondent.
Be that as it may, undoubtedly petitioner had obtained the employment suppressing the material information sought by the appointing authority regarding the involvement of the petitioner in any criminal case. The copy of the form has been annexed by the respondents along with the counter affidavit; column 12 of the same provides for furnishing the information as to whether the applicant had ever been arrested, prosecuted, kept under detention, convicted by the Court of Law for any offence etc. etc., or he has been involved in any criminal case. Petitioner filled up the said column by saying "No". Therefore, it is evident that petitioner did not disclose the material information sought by the appointing authority.
It is settled proposition of law that 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 Shrisht Dhawan Vs. 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., (2000) 3 SCC 581, 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.
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. Savitra 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.
Moreso, 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).
More so, we do not find any force in the submission made by the learned counsel for the petitioner that as petitioner was not involved in the case involving moral turpitude, and even if he has suppressed those material informations, the order impugned could not be passed.
The meaning of term 'turpitude' and 'moral turpitude' has been given in Black's Law Dictionary, Fourth Edition, as follows:-
"Turpitude - In its ordinary sense, inherent baseness or vileness of principle or action; shameful wickedness; depravity. In its legal sense, everything done contrary to justice, honesty, modesty, or good morals. State Vs. Anderson,117 Kan. 117, 230 P.315; Hughes Vs. State Board of Medical Examiners, 162 Ga. 246; 134 S.E. 42, 46. An action showing gross depravity. Traders & General Ins. Co. Vs. Russell, Te & Civ. App. 99; S.W. 2-d 1079, 1084."
" Moral Turpitude- A term of frequent occurrence in statutes, especially those providing that a witness' conviction of a crime involving moral turpitude may be shown as tending to impeach his credibility. In general, it means neither more nor less than "turpitude", i.e. anything done contrary to justice, honesty, modesty, or good morals."
A Division Bench of Rajasthan High Court in Lachuram Vs. Inderlal, 1966 ILR Raj. 1168, has considered this aspect and took note of various Indian and foreign judgments and also quoted Bartos Vs. United States District Court, for District of Nebraska, C.C.A. Neb.,19 F.2d 722, 724, wherein the Court held as under:-
"An act of baseness, vileness, or depravity, in the private and social duties, which a man owes to his fellow-men, or to society in genial, contrary to the accepted and customary rule of right and duty between man and man" and "conduct contrary to justice, honesty, modesty or good morals."
The Court further observed as under:-
"It would appear from the above that the meanings given to the terms 'turpitude' and 'moral turpitude' indicate almost the same type of failing in a man's character or moral make-up. In our view, no absolute standard or no hard and fast rule can be laid down for deciding whether a particular act should considered as one involving moral turpitude, because it would mostly depend on the facts and circumstances in which the act or omission is committed whether it involves moral turpitude or not."
The Court placed reliance on the judgment of Allahabad High Court in Buddha Pitai Vs. Sub-Divisional Officer, Malihabad, Lucknow & ors., AIR 1965 All. 382, wherein the Allahabad High Court held as under:-
"Now, coming to the second question, learned counsel has urged that in deciding the question whether an offence involves moral turpitude, the Court should confine its consideration only to the nature of the offence and it should not be swayed in its opinion by the facts and circumstances in which it was committed." (Emphasis added).
The Court further observed as under:-
"Whether an offence involves moral turpitude, will depend on its nature and the circumstances in which it is committed. An offence of a certain class may generally be considered to involve moral turpitude but it may not be so if committed in particular circumstances, for example, an offence of murder may ordinarily involve moral turpitude but if it is committed in a spirit of patriotism or with a laudable object, it may not shock the public conscience and instead of being decried by the public the offender may be considered a hero.... Again an offence of theft will generally be considered mean, vile and anti-social and a thief would be simply scorned at. However, if a starving and emaciated person steals food is caught, prosecuted and convicted, people will take a charitable and sympathetic view of the offender's conduct and his offence may not be considered as involving moral turpitude. Thus, the case of every offence will have to be judged in the light of the circumstances in which it is committed. It is not the gravity of the offence or the quantum of punishment imposed on a person which will determine such question."
Similarly, in Mangali Vs. Chhakkital, AIR 1963 All. 527, it was observed as follows:-
"From consideration of the dictionary meaning of the words 'moral' and 'turpitude' as well as the real ratio decidendi of the cases, the principle which emerges appear to be that the question whether a certain offence involves moral turpitude or not, will necessarily depend on the circumstances in which the offence is committed."
In Pawan Kumar Vs. State of Haryana, AIR 1996 SC 3300 wherein the Apex Court has observed as under:-
" 'Moral turpitude' is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity."
The aforesaid judgment in Pawan Kumar case (supra) has been considered by the Hon'ble Supreme Court again in Allahabad Bank and another Vs. Deepak Kumar Bhola, 1997 (4) SCC 1, and placed reliance on Baleshwar Singh Vs. District Magistrate and Collector, AIR 1959 All. 71 wherein it has been held as under:-
"The expression 'moral turpitude' is not defined anywhere. But it means anything done contrary to justice, honesty, modesty or good morals. It implies depravity and wickedness of character or disposition of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude, but it would be so if it discloses vileness or depravity in the doing of any private and social duty which a person owes to his fellow men or to the society in general. If therefore the individual charged with a certain conduct owes a duty, either to another individual or to the society in general, to act in a specific manner or not to so act and he still acts contrary to it and does so knowingly, his conduct must be held to be due to vileness and depravity. It will be contrary to accepted customary rule and duty between man and man"
Thus, in view of the above, the matter requires to be examined in the facts and circumstances of the case. In the instant case, as suppressing the material information by the petitioner of his involvement in criminal case itself is a moral turpitude, it is of no consequence as to whether the offence, he was tried involved moral turpitude or not.
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, 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 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.
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, as acquittal may be on a technical ground or for want of evidence etc.
In view of the above, the petitioner 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. Principles of natural justice are not attracted in such a fact-situation.
No fault can be found with the impugned termination order dated 20.1.1988. As his termination was not based on pendency of the criminal case, his representation for reinstatement has rightly been rejected vide impugned order dated 3.6.1999.
Petition is devoid of any merit, and is accordingly dismissed. No order as to costs.
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