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Ram Das Tiwari v. Nagar Palika & Others - WRIT - A No. 39633 of 1993  RD-AH 13237 (8 August 2006)
Civil Misc. Writ Petition No. 39633 of 1993
Ram Das Tewari
Nagar Palika, Kalpi, Jalaun at Orai & Others
Hon. Dilip Gupta, J.
The petitioner was appointed as a Lineman on 29th December, 1989 in the Nagar Palika, Kalpi, district Jalaun by the Chairman of the Nagar Palika but salary was not paid to him from February, 1991. He, therefore, filed the present petition for a direction upon the respondents to not only pay the salary but also to continue him in service and regularise his services on the post of Lineman.
The petitioner has placed on record the order dated 29th December, 1989 by which he was appointed as a substitute Lineman on temporary basis and the order dated 25th July, 1991 said to have been issued by the Executive Officer of the Nagar Palika which mentions that the services of the petitioner had earlier been terminated in the absence of any sanction of the post but as the State Government had issued the Government Order dated 19th April, 1991 extending the sanction to the post of Lineman, the order for continuity in service was being issued. The petitioner by means of the supplementary affidavit has also brought on record the order dated 17th August, 1996 said to have been issued by the Executive Officer of the Nagar Palika confirming the petitioner on the post of Lineman w.e.f. 17th August, 1996 on the basis of the order dated 13th August, 1996 passed by the Chairman of the Nagar Palika.
In the counter affidavit filed by the respondents it has been categorically stated that the State Government had created a temporary post of Lineman in the Nagar Palika up to 28th February, 1991 and since this period was not extended, the petitioner was not permitted to work after the said date and salary was also not paid. It has also been categorically stated that the order dated 25th July, 1991 said to have been passed by the Executive Officer was not in the records of the Nagar Palika and the alleged Government Order dated 19th July, 1991 which was referred to in the order dated 25th July, 1991 was also not in the records of the Nagar Palika. In the supplementary counter affidavit, it has been stated that the order dated 17th August, 1996 was a forged and fictitious order as it also does not exist in the records of the Nagar Palika. In support of this contention that the said order dated 17th August, 1996 was a forged and fictitious order, communications dated 24th October, 2003 and 2nd January, 2006 filed by the petitioner before the Executive Officer of the Nagar Palika have been placed on record to show that even till January, 2006 the petitioner was seeking regularization of his services.
This Court while entertaining the petition on 27th October, 1993 directed that since the services of the petitioner had been regularised by the order dated 25th July, 1991, he shall be allowed to work and paid his current salary without any delay as and when it falls due but the payment of arrears shall be subject to final orders. It is on the basis of the aforesaid order that the petitioner has continued in service.
The original records relating to the appointment of the petitioner have been produced by Sri Rakesh Bahadur, learned counsel appearing for the Nagar Palika and the learned counsel for the petitioner has also produced the orders dated 29th December, 1989, 25th July, 1991 and 17th August, 1996.
Learned counsel for the petitioner submitted that the petitioner was clearly entitled to the payment of salary from February, 1991 as the Executive Officer had passed the order dated 25th July, 1991 and that even his service was subsequently confirmed by the order dated 17th August, 1996. Sri Rakesh Bahadur, learned counsel for the Nagar Palika, however, submitted that both the orders do not exist in the records of the Nagar Palika and are forged and fictitious orders and it is only on the basis of one of these forged order dated 25th July, 1991 that this Court passed the interim order for payment of salary to the petitioner. He has further submitted that the appointment of the petitioner was purely temporary in nature and could be terminated at any time without notice and as the State Government had created the temporary post of Lineman in the Nagar Palika only up to 28th February, 1991, there was no occasion to continue with the temporary service of the petitioner after this date and nor was he permitted to work.
I have carefully considered the submissions advanced by the learned counsel for the parties.
The appointment of the petitioner was purely temporary in nature and could be terminated at any time without notice. The respondents have come out with a categorical case that the post against which the petitioner had been appointed as a temporary substitute Lineman in the Nagar Palika was a temporary post created by the State Government only up to 28th February, 1991 after which the State Government did not grant any extension. The petitioner, therefore, could not have continued after 28th February, 1991 and in fact he was not permitted to work or paid salary after this period. The petitioner has annexed a copy of the order dated 25th July, 1991 as Annexure ''3' to the writ petition. This order mentions that though the services of the petitioner had earlier been terminated in the absence of any sanctioned post but in view of the Government Order dated 19th April, 1991 by which extension was granted to the temporary post, the petitioner's continuity in service was maintained. It is only on the basis of this order dated 25th July, 1991 that this Court passed the interim order on 27th October, 1993 that the petitioner shall be allowed to work and paid the current salary without delay as and when it falls due but the payment of arrears shall be subject to the final orders. This order dated 25th July, 1991 does not exist in the records of the Nagar Palika and nor does the Government Order dated 19th April, 1991 referred to in the said order, exists in the records as has been categorically stated in the counter affidavit. I have also examined the records produced by the learned counsel for the respondents and find that neither the said orders nor the confirmation order dated 17th August, 1996 are contained in the original records which have been serially numbered. What is surprising is that neither the order dated 25th July, 1991 nor the order dated 17th August, 1996 bear any serial number. The petitioner has also not placed the Government Order dated 19th April, 1991 which was the basis for issuing the alleged order dated 25th July, 1991. It would, therefore, be reasonable to conclude, as has been contended by the respondents, that the order dated 25th July, 1991 is a forged and fictitious order. The fact that the order dated 17th August, 1996 is also a forged and a fictitious order is fortified by the letters dated 24th October, 2003 and 2nd June, 2006 sent by the petitioner to the Executive Officer as it mentions that certain employees of the Nagar Palika were demanding money from him for making him permanent. It needs to be mentioned that the order dated 17th August, 1996 was filed by the petitioner along with the supplementary counter affidavit sworn on 1st August, 2006 and if the order dated 17th August, 1996 had actually been issued by the Executive Officer, the petitioner would not have submitted the two representations referred to above, for confirming him. It is, therefore, clearly a case where the petitioner has played fraud upon this Court by filing forged and fictitious documents.
In Bank of India & Anr. Vs. Avinash D. Mandivikar & Ors,. (2005) 7 SCC 690 the Hon'ble Supreme Court considered the consequences of submitting a false certificate for seeking appointment and in this connection it was observed as follows:-
"Respondent 1 employee obtained appointment in the service on the basis that he belonged to a Scheduled Tribe. When the clear finding of the Scrutiny Committee is that he did not belong to the Scheduled Tribe, the very foundation of his appointment collapses and his appointment is no appointment in the eye of law. There is absolutely no justification for his claim in respect of the post he usurped, as the same was meant for a reserved candidate.
The matter can be looked into from another angle. When fraud is perpetrated the parameters of consideration will be different. Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. This Court in Bhaurao Dagdu Paralkar v. State of Maharashtra (2005) 7 SCC 605 dealt with the effect of fraud. It was held as follows in the said judgment :-
"12. ... ''Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false.'
* * *
13. This aspect of the matter has been considered by this Court in Roshan Deen v. Preeti Lal (2002) 1 SCC 100, Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education (2003) 8 SCC 311, Ram Chandra Singh case (2003) 8 SCC 319 and Ashok Leyland Ltd. v. State of T.N. (2004) 3 SCC 1.
14. Suppression of a material document would also amount to a fraud on the court. (See Gowrishankar v. Joshi Amba Shankar Family Trust (1996) 3 SCC 310 and S.P. Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1).
15. ''Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti Yadav case.
16. In Lazarus Estates Ltd. v. Beasley (1956) 1 QB 702 Lord Denning observed at QB pp. 712 and 713: (All ER p.345-C)
"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.'
In the same judgment Lord Parker, L.J. observed that fraud vitiates all transactions known to the law of however high a degree of solemnity. (p. 722)
. These aspects were recently highlighted in State of A.P. v. T. Suryachandra Rao (2005) 6 SCC 149." (emphasis supplied)
The same view was reiterated by the Hon'ble Supreme Court in the case of Lillykutty Vs. Scrutiny Committee, SC & ST & Ors. (2005) 8 SCC 283 and it was observed :-
"When, thus, a person who is not a member of a Scheduled Caste or a Scheduled Tribe obtains a false certificate with a view to gain undue advantage to which he or she was not otherwise entitled to, would amount to commission of fraud. Fraudulent acts are not encouraged by the courts."
In Union of India & ors. Vs. M. Bhaskaran, 1995 Suppl. (4) SCC 100, the Supreme Court, after placing reliance upon 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."
This is what has been said in connection with the filing of forged documents before the employer to seek employment. It would, therefore, apply with greater force when forged documents are filed in the Courts to obtain orders and this is what has been done in the present case.
It must also not be forgotten that a person who approaches the High Court for exercising its extraordinary jurisdiction under Article 226 of the Constitution, must come not only with clean hands but also with a clean mind, clean heart and clean objective as has been observed by the Supreme Court in The Ramjas Foundation & Ors. Vs. Union of India & Ors., AIR 1993 SC 852; K.P. Srinivas Vs. R.M. Premchand & Ors., (1994) 6 SCC 620).
In Tilokchand Motichand Vs. H.B. Munshi, AIR 1970 SC 898, State of Haryana Vs. Karnal Distillery, AIR 1977 SC 781 and Sabia Khan & Ors. Vs. State of U.P. & Ors., (1999) 1 SCC 271, the Supreme Court observed that a petition containing misleading and inaccurate statement to achieve an ulterior purpose amounts to abuse of the process of the Court.
In Agriculture & Process Food Products Vs. Oswal Agro Furane, AIR 1996 SC 1947, the Supreme Court observed that a petitioner who is guilty of suppression of important facts cannot expect his case to be considered on merits and a litigant is bound to make "full and true disclosure of facts". While deciding the said case, Supreme Court placed reliance upon the judgment in King Vs. General Commissioner, (1917) 1 KB 486, wherein it was observed :-
"Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent abuse of its process, to refuse to proceed any further with the examination of its merits......."
It must also not be forgotten that a false statement made in the Court or in the pleadings, intentionally to mislead the Court and obtain a favourable order, amounts to criminal contempt, as it tends to impede the administration of justice. A Constitution Bench of the Supreme Court in Naraindas Vs. Government of Madhya Pradesh & Ors. AIR 1974 SC 1252 has held as under:-
"Now there can be no doubt that if a wrong or misleading statement is deliberately and wilfully made by a party to a litigation with a view to obtain a favourable order, it would prejudice or interfere with the due course of the judicial proceeding, and thus, amount to contempt of court."
In The Advocate General, State of Bihar Vs. M/s. Madhya Pradesh Khair Industries & Anr., AIR 1980 SC 946, the Supreme Court held that every abuse of the process of the Court does not necessarily amount to contempt of Court, but a calculated attempt to hamper the due course of the judicial proceeding or administration of justice shall amount to contempt of the Court, and in such a case, punishment to the contemnor is necessary to prevent the abuse and making a mockery of the judicial process, as it adversely affects the interest of the public in the administration of justice. The Court further held as under.
"The public have an interest, an abiding and a real interest, and a vital stake in the effective and orderly administration of justice, because, unless justice is so administered, there is the peril of all rights and liberties perishing. The Court has the duty of protecting the interest of the public in the due administration of justice, and so, it is entrusted with the power to commit for contempt of Court, not in order to protect the dignity of the Court against insult or injury as the expression 'contempt of Court' may seem to suggest, but, to protect and to vindicate the right of the public that the administration of justice shall not be prevented, prejudiced, obstructed or interfered with."
In The Secretary, Hailakandi Bar Association Vs. State of Assam & Anr., AIR 1996 SC 1925, the Supreme Court held that filing inaccurate documents deliberately, with a view to mislead the Court, amounts to interference with the due course of justice by attempting to obstruct the Court from reaching a correct conclusion, and thus, amounts to contempt of Court.
In Afzal & Anr. Vs. State of Haryana & Ors., (1996) 7 SCC 397 and Mohan Singh Vs. Late Amar Singh, (1998) 6 SCC 686, the Supreme Court held that a false and a misleading statement deliberately and wilfully made by a party to the proceedings to obtain a favourable order, amounts to prejudice or interference with the due course of judicial proceedings, and it will amount to criminal contempt. The Court further held that every party is under a legal obligation to make the truthful statement before the Court, for the reason that causing obstruction in the due course of justice "undermines and obstructs the very flow of the unsoiled stream of justice, which has to be kept clear and pure, and no one can be permitted to take liberties with it by soiling its purity".
In view of the above, the filing of such forged and fictitious documents would not only amount abuse of the process of the Court but also Criminal Contempt. However, in view of the request made by the learned counsel for the petitioner, the Court, very reluctantly is not initiating proceedings for criminal contempt but in view of the fact that the petitioner has filed forged and fictitious documents, the Court refuses to proceed any further with the examination of the case on merits, as has been observed by the Supreme Court in Agriculture and Process Food Products (supra).
Learned counsel for the petitioner also submitted that as the petitioner had continued to work on the basis of the interim order dated 27th October, 1993, a sympathetic view of the matter may be taken. In my opinion the petitioner is not entitled to any relief from this Court merely on the ground that an interim order had been passed in his favour under which he continued to receive salary as not only the conduct of the petitioner disentitles him from seeking any discretionary relief from this Court but even otherwise, in such matters, a sympathetic view should not be taken.
In this connection reference may be made to the decision of the Supreme Court in the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. & Ors,. JT 1993 (6) SC 331, wherein it has been observed:-
"The court of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation."
The petitioner has continued to work in the Nagar Palika and has also been paid salary on the basis of the interim order dated 27th October, 1993. This interim order was passed on the basis of the order dated 25th July, 1991 which order has been found to be forged and fictitious. It is, therefore, a fit case where the petition should not only be dismissed but heavy cost should be imposed on the petitioner in view of the decision of the Supreme Court in Mahendra Baburao Mahadik & Ors. Vs. Subhash Krishna Kanitkar & Ors. 2005 AIR SCW 1579, in which it was observed:-
"26. It is, therefore, apparent that the Appellants have made incorrect statements and annexed a wrong document before this Court.
54. ............... Having regard to the facts that the Appellants have sought to mislead this Court, we think it appropriate to impose costs upon them. The Appellants are hereby directed to deposit a sum of Rs. 50,000/- (Rupees Fifty Thousand) with National Legal Services Authority within four weeks from date and deposit the receipt thereof in the Registry of this Court."
The writ petition is, therefore, dismissed with a cost of Rs. 50,000/- which shall be deposited by the petitioner before the Executive Officer of Nagar Palika within a period of one month from today failing which it shall be recovered as arrears of land revenue by the Collector, Jalaun. The cost so collected shall be deposited with the High Court Legal Services Committee, Allahabad.
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