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ANIL KUMAR PANDEY versus UNION OF INDIA & OTHERS

High Court of Judicature at Allahabad

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Anil Kumar Pandey v. Union Of India & Others - SPECIAL APPEAL No. 1389 of 2005 [2005] RD-AH 6108 (22 November 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 34

Special Appeal No.1389 OF 2005

Anil Kumar Pandey       -------------    Appellant              

Versus.

Union of India & Ors        -------------  Respondents

_________

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble  Dilip Gupta, J.

(By Hon'ble Dr. B.S. Chauhan, J.)

This special appeal has been filed against the judgment and order dated 05/10/2005 by which the writ petition of the appellant-petitioner has been rejected against the order of termination from service.

Facts and circumstances giving rise to this appeal are that the appellant while applying for the post of Constable in the Central Industrial Security Force suppressed the material information  required to be filled up in column 12 of the application form. The said column required furnishing information as to whether any criminal case was pending against the appellant. Inspite of the fact that criminal case was pending against the appellant-petitioner, he suppressed the material information and got the appointment. Subsequently, when verification was made the respondents came to know that a criminal case was pending against the appellant and for that purpose he was served with a notice dated 21/1/2000 to show cause as to why his services be not terminated as he obtained the appointment by misrepresentation as a criminal case in Case Crime No. 50/92 under Sections 147/148/307/440 I.P.C. had been registered against him in Chaubepur Police Station District Varanasi and was pending on the date of submission of the application form.

The appellant-petitioner filed reply to the said show cause notice on 20/2/2000, and after considering the same his services were terminated vide order dated 11/4/2000.

Being aggrieved, he filed the statutory appeal/revision which was dismissed and his writ petition has also been dismissed vide impugned judgment and order dated 05/10/2005 on the ground that as the appellant-petitioner obtained the employment by misrepresentation it stood vitiated. Hence this appeal.

Learned counsel for the appellant has submitted that termination was not permissible without holding the regular inquiry and the termination order is in violation of Article 311 of the Constitution. The learned Judge failed to appreciate the submissions raised on behalf of the appellant and therefore the judgment and order dated 05/10/2005 as well as the orders passed by the statutory authorities are liable to be set-aside.

Be that as it may, undoubtedly the petitioner had obtained the employment by 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 on the date of filling 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. Similar view has been reiterated in A.P. Public Service Commission Vs. Koneti Venkapeswarulu & Ors,       (2005) 5 SCC 177.

Thus, it is the antecedent, conduct or character of the candidate to be appointed to the services which is of paramount consideration, and not the result of the criminal case in which he was involved.

In view of the above, we do not find any ground to interfere with the impugned judgment and order dated 05/10/2005. Special Appeal lacks merit and is accordingly dismissed.

22/11/2005

SB


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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