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Anil Kumar Pandey v. Union Of India & Others - SPECIAL APPEAL No. 1389 of 2005  RD-AH 6108 (22 November 2005)
COURT NO. 34
Special Appeal No.1389 OF 2005
Anil Kumar Pandey ------------- Appellant
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.
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