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JAWALA PRASAD versus STATE OF U.P.

High Court of Judicature at Allahabad

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Jawala Prasad v. State Of U.P. - WRIT - A No. 21394 of 1990 [2006] RD-AH 12029 (24 July 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 26

Civil Misc. Writ Petition No. 21394 of 1990

Jwala Prasad

Vs.

State of Uttar Pradesh & Ors.

*********

Hon. Dilip Gupta, J.

This writ petition has been filed for quashing the order dated 7.7.1980 passed by the Sub-Divisional Magistrate, Naugarh by which the services of the petitioner has been terminated on the basis of the order dated 7.7.1990 and for quashing the order dated 7.8.1990 passed by the District Magistrate, Siddharthanagar placing the petitioner under suspension.

The petitioner claims to have been appointed as a Lekhpal on the basis of the appointment order dated 12.7.1978, a copy of which has been annexed as Annexure ''1' to the writ petition. A perusal of the aforesaid order indicates that the petitioner was appointed on a temporary basis in Lekhpal Area 80, district Basti and that the services were purely temporary in nature liable to terminate at any time without notice.

Learned counsel for the petitioner submitted that the order dated 7.7.1990 was passed without issuing any charge-sheet to the petitioner and without conducting any enquiry and, therefore, it is liable to be set aside.

Learned Standing Counsel, on the other hand, has placed reliance on main order dated 7.7.1990 which was filed along with the counter-affidavit. A perusal of the aforesaid order indicates that the petitioner obtained the appointment on the basis of a forged letter inasmuch as the Appointing Authority had not signed it at all apart from the fact that the petitioner was only IVth class pass and was, therefore, not eligible to be appointed. The order further indicates that a charge-sheet dated 26.6.1987 was issued to the petitioner but he did not file any reply to the said charge-sheet. He, therefore, contends that the petitioner is not entitled to any relief particularly when he has challenged the consequential order and not the main order dated 7.7.1990.

I have carefully considered the submissions advanced by the learned counsel for the parties.

It is not in dispute that the main order dated 7.7.1990 has not been challenged by the petitioner in this petition and only the consequential order dated 7.7.1990 is under challenge. The contention of the learned counsel for the petitioner that as it was not supplied to him he did not challenge it cannot be accepted since once it was filed along with the counter affidavit, the petitioner should have taken steps to challenge it. In such circumstances no relief can be granted to the petitioner and the petition is liable to be dismissed on this ground alone.

This apart, it has been found as a fact on the basis of the enquiry that the appointment order of the petitioner was a forged document. Fraud vitiates everything and, therefore, if the appointment order of the petitioner itself was a forged document, no relief can be granted to the petitioner.

In Lazarus Estates Ltd. V. Beasley, (1956) 1 ALL ER 341 the Court of Appeal stated the law thus:

"I cannot accede to this argument for a moment. No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever;"

In S.P. Chengalvaraya Naidu V. Jagannath (1994) 1 SCC 1 the Supreme Court stated that fraud avoids all judicial acts, ecclesiastical or temporal.

In Andhra Pradesh State Financial Corporation Vs. M/s. GAR Re-Rolling Mills & Anr., AIR 1994 SC 2151 the Supreme Court observed that a writ Court, while exercising   its equitable jurisdiction, should so act as to prevent perpetration of a legal fraud as the Courts are obliged to do justice by promotion of good faith. Equity is always known to prevent the law from the clefty evasions and new sub-telities invented to evade law.

In Union of India & ors.  Vs.  M.  Bhaskaran, 1995 Suppl.  (4) SCC 100, the Supreme Court, after placing reliance upon and approving its earlier judgment in the case of District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram & Anr. 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."

In United India Insurance Co.  Ltd. Vs.  Rajendra Singh & ors., (2000) 3 SCC 581, the Supreme 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.

In the case of Ram Preeti Yadav Vs. U.P. Board of High School and Intermediate Education & Ors,. (2003) 8 SCC it was observed by the Supreme Court that fraud deprives a person of all the advantages or benefits obtained by him and delay in detection of or in taking action raises no equity in favour of the petitioner. The facts of the case were that the petitioner on the basis of a provisional mark-sheet issued in 1986 took admission in B.A. without disclosing the fact that his result had been withheld. He passed the B.A. and M.A. Examination and also got employment as a Teacher in an Intermediate College. In the year 1993 some inquiry was made about the passing of the Intermediate Examination and then the Principal was informed on 16th October, 1996 that the result of the petitioner of the Intermediate Examination of the year 1984 had been cancelled. The writ petition was filed in the High Court raising various grounds including the ground that the cancellation after more than 10 years was wholly arbitrary and once he had passed the B.A and M.A Examination and secured appointment as a Teacher, equity demanded that the order be set aside. A learned Single Judge of the Allahabad High Court allowed the writ petition and the Special Appeal was also dismissed. The Supreme Court, however, set aside the judgment and upheld the action of the Board in cancelling the result of the Intermediate Examination.  

The contention of the learned counsel for the petitioner that the services have been terminated without issuance of any charge-sheet cannot also be accepted. In the first instance it must be remembered that the petitioner was merely a temporary employee whose services under the terms of the appointment letter could be terminated at anytime without any notice. Secondly a perusal of the impugned order indicates that the charge-sheet dated 26th June, 1987 was actually issued to the petitioner but for reasons best known to him the petitioner did not choose to file any reply and instead of proceeded to challenge the aforesaid show-cause notice by filing a suit in the Civil Court.

In my opinion, the petitioner cannot be permitted to raise the grievance about violation of principles of natural justice once he failed to file a reply to the charge-sheet. In this connection reference may be made to the decision of the Supreme Court given in N.K. Prasada Vs. Government of India & Ors., AIR 2004  SC 2538.

The impugned order further mentions that the petitioner was not even eligible to be appointed as a Lekhpal as he was merely IVth class pass. Learned counsel for the petitioner could not place any material before the Court to contravene this finding.  

Learned counsel for the petitioner then submitted that if the services had been terminated by the order dated 7.7.1990, there was no requirement of suspending him subsequently by the order dated 7.8.1980. The respondents have clarified this position in the counter-affidavit by stating that the suspension order had been passed by the Collector, Siddharthanagar as the petitioner did not appear before the Collector on the date fixed and the Collector had no knowledge that his services had earlier been terminated by the order dated 7.7.1990. Thus the petitioner cannot take the benefit of the order dated 7.8.1980.

For all the reasons stated above, there is no merit in this petition. It is, accordingly, dismissed.

Dt/- 24.7.2006

Sharma/NSC


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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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