HIGH COURT OF JUDICATURE AT ALLAHABAD ?Reserved Court No. - 2 Case :- WRIT - A No. - 69274 of 2009 Petitioner :- Vinod Kumar Yadav Respondent :- State Of U.P. & Others Petitioner Counsel :- P. N. Tripathi Respondent Counsel :- C. S. C.,M.C. Chaturvedi Hon'ble Ran Vijai Singh,J.
Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the orders dated 10.11.2009, 29.1.2008 and 21.8.2007. Vide order dated 21.8.2007, the Superintendent of Police, Ghazipur has cancelled the petitioner's selection on the ground that while entering in the service, petitioner has filed forged caste certificate whereas vide order dated 29.1.2008 and 10.11.2009 the petitioner's appeal as well as revision filed against the order of cancellation of the selection have been dismissed by the respondents no. 3 and 2 respectively .
The facts giving rise to this case are that the petitioner was selected for appointment on the post of Constable in U.P. Civil Police in the year 2006 and was sent for training. While entering in the service, the petitioner has claimed the benefit of reservation of other backward classes on the basis of caste certificate issued by Tehsildar Tehsil Shahganj,District Jaunpur. Later, on verification from the Tehsil Authority it was found that the caste certificate was not issued by the office of Tehsildar and on that ground the petitioner's selection was cancelled by the impugned order dated 21.8.2007 by Superintendent of Police holding that the petitioner has obtained his selection by playing fraud upon the authorities as he has produced forged caste certificate at the time of entering into the service.
The appeal filed by the petitioner has been dismissed by the respondent no. 3. However before revision could be filed when it came to the notice of the petitioner that his selection has been cancelled on the ground of forged caste certificate. He applied before the tehsil authority for obtaining the caste certificate as the petitioner belongs to Ahir by caste and falls under the O.B.C. category and is entitled for reservation under U.P. Scheduled Caste Scheduled Tribes and Other Backward Classes Reservation, Act 1994. Thereafter he obtained the caste certificate and produced the same before the revisional authority. But the revisional authority without veryfying it from the tehsil authority has dismissed the revision by affirming the order passed by appointing authority as well as appellate authority.
Sri P.N.Tripathi, learned counsel for the petitioner submitted that the petitioner is of a rural background and he has given Rs. 500/- to one Sri Akhilesh Srivastava for obtaining caste certificate who happens to be deed writer and munshi in Tehsil Shahganj. Who provided him the caste certificate issued by the office of Tehsildar containing the seal and signature of Tehsildar and there was no occasion for the petitioner to disbelieve the same. On the basis of said certificate, the petitioner applied for selection. It is also submitted that when the petitioner came to know that this is forged certificate, the petitioner filed an application under Section 156 (3) Cr.P.C. before the court of competent jurisdiction for lodging an F.I.R. against Sri Akhilesh Srivastava that is pending before that court. He has further submitted that as the impugned order has been passed on the ground of allegation of fraud therefore before passing any order on that count an opportunity of hearing ought to have been offered to the petitioner. In support of his submissions, he has placed reliance upon the judgment of this Court reported in 2011 (1) ADJ 635 Kishan Kumar Vs State of U.P. and others.
Refuting the submissions of learned counsel for the petitioner, learned standing counsel has submitted that the caste certificate of the petitioner, which was submitted by him at the time of recruitment, was not issued by the office of Tehsildar, therefore no infirmity can be attached with the impugned order as on date of selection the petitioner had produced forged certificate.
Learned standing counsel further submitted that even if the opportunity would have been offered, the petitioner could not have improved his case as on the date of production of certificate, it was not issued by competent authority. In his further submissions, the petitioner has no leg to stand before the court and the writ petition deserves to be dismissed.
I have heard learned counsel for the parties and perused the record.
After hearing learned counsel for the parties, it transpires that undisputedly the caste certificate filed by the petitioner showing him Ahir by caste was not issued by the office of Tehsildar. It appears that this fact came into the notice of the respondents at the time of verification of the caste certificate and on that basis the appointing authority has cancelled the selection of the petitioner on the ground that the petitioner has obtained his selection by playing fraud annexing the forged certificate.
From the perusal of impunged order it transpires that before passing the impugned order the opportunity of hearing was not afforded to the petitioner. It is settled law that where any order is passed on the ground of playing fraud then an opportunity of hearing is necessary. The mere allegation of fraud is not sufficient for taking action against a person unless it is pleaded and proved.
It is also settled that fraud is always intentional and is being played with a view to obtain certain benefit knowing it well that in case true facts are stated that benefit would not be extended to the person concerned.
The Apex Court in the case of State of A.P. & Anr. Vs. T. Suryachandra Rao, reported in 2005 (6) SCC 149, has observed as under:-
"8. By "fraud" is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from ill-will towards the other is immaterial. The expression "fraud" involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non- economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. (See Vimla (Dr.) Vs. Delhi Admn., AIR 1963 SC 1572; and Indian Bank Vs. Satyam Fibres (India) (P) Ltd., (1996) 5 SCC 550).
9. A "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. (See S.P.Chengalvaraya Naidu Vs. Jagannath, (1994) 1 SCC 1).
11. ----------------In Webster's Third New International Dictionary "fraud" in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Law Dictionary, "fraud" is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right. A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act, 1872 defines "fraud" as an act committed by a party to a contract with the intent to deceive another. From dictionary meaning or even otherwise fraud arises out of a deliberate active role of the representator about a fact, which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with the knowledge that it was false. In a leading English case i.e. Derry Vs. Peek (1886-90) All ER Rep 1 what constitutes "fraud" was described thus; (All ER p.22 B-C).--------.
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 Vs. U.P. Board of High School and Intermediate Education, (2003) 8 SCC 311."
From the perusal of the Apex Court's judgment, it is clear that the fraud is always intentional and it is played by a person knowing it well that he does not belong to a particular category and files certificate on the basis of falsehood with a view to obtain the benefit of falsehood whereas in the present case, it is not so, as the petitioner himself has gone before the authorities as well as came before this Court with clean hands in unambiguous words that he had paid money to one Sri Akhilesh Srivastava for obtaining the caste certificate and thereafter, the caste certificate was given to him by Sri Srivastava. In fact, this is a case where the fraud has been played on the petitioner. The petitioner really belongs to other backward class (Ahir by caste) and has been made victim of circumstances.
After dismissal of the appeal and before filing of the revision the petitioner has obtained the caste certificate issued by the Tehsildar and submitted the same before the revisional authority along with the memo of revision but the revisional authority did not take notice of the aforesaid fact and dismissed the revision.
It is to be noticed that belonging of a person to a particular caste is a question of fact and which cannot be negatived in any circumstances. Here doctrine of factum valet will come into play i.e. hundred text cannot alter a fact. The facts always remain the same. The issuance of a certificate only means that a competent authority is certifying a person that he belongs to a particular caste and for that purpose the certificate issued is taken to be true. It is not so that if the certificate is not issued to a particular person the factum of belonging of a person to a particular caste is anyhow diluted. The mere declaration of a person belonging to a particular caste is sufficient. The certification given by an authority is only putting a seal on the declaration of person after verification. Here in the present case, the filing of earlier certificate which was in fact not issued by the office of Tehsildar will not dilute the petitioner 's status of his being Ahir by caste.
In fact, the status of the petitioner has further been certified by the Tehsildar and the certificate was brought into the notice of the revisional authority. In these circumstances, I am of the view that the revisional authority is not meant to put a seal on the orders passed by the competent authority and appellate authority. He is under statutory obligation to apply his own mind to the facts of the case. Here I find that the revisional authority has not applied his mind to the full swing and based his decision only on the basis of the decision of competent authority and appellate authority. It was the duty of the revisional authority to take notice of the fact that the defect which crept earlier has now been cured. He would have examined the matter sympathetically looking into the background of the petitioner. The petitioner in his complaint which has been brought on record as Annexure 7 to the writ petition has stated that he is the villager and is totally unaware of the fact that how the caste certificate is issued. He, believing on a person who was working in the Tehsil campus, has given money required by him for obtaining caste certificate. In fact he has been duped. Learned counsel appearing for the State respondents has also not brought any rule in the notice of the court meant for obtaining caste certificate containing the procedure for making an application disclosing the requirement for filing an application for obtaining caste certificate. In absence of any rule which is not known to the parties' counsel how can it be expected from a person living in the remote rural area will know about the same. The petitioner has been made victim of the circumstances which has resulted into the cancellation of his selection.
I am of the considered opinion that the authorities below have erred in holding that the petitioner has played fraud in his selection. Had the petitioner, was not Ahir by caste and would have annexed certificate to that extent his role would have certainly been brought in the zone/ambit of fraud, therefore very basis of impugned orders are unsustainable. I also find that the impugned order of cancellation of selection suffers from breach of principle of natural justice.
The Apex Court in the case of D.K.Yadav Vs. J.M.A.Industries Ltd. Reported in 1993,SCC 259 has made the following observations.
The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely, the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily effecting the rights of the concerned person.
It is fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. In Mohinder Singh Gill Vs. Chief Election Commissioner, (1978) 1 SCC 405 :(1978) 2 SCR 272; the Constitution Bench held that 'Civil consequences' covers infraction of not merely property or personal right but of civil liberties, material deprivation and non-pecuniary damages. In its comprehensive connotation every thing that affects a citizen in his civil life inflicts a civil consequence. Black's Law Distionary, 4th edn., page 1487 defined civil rights are such as belong to every citizen of the State or country.... they include..... rights capable of being enforced or redressed in civil action......... In State of Orissa Vs. (Misss) Birapani Dei this Court held that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since no such opportunity was given it was held that superannuation was in violation of principles of natural justice.
In State of W.B. Vs. Anwar Ali Sarkar, 1952 SCR 284: AIR 1952 SC 75: 1952 Cri LJ 510; per majority, a seven judge Bench held that the rule of procedure laid down by law comes as much within the purview of Article 14 of the Constitution as any rule of substantive law. In Maneka Gandhi Vs. Union of India (1978) 1 SCC 248: (1978) 2 SCR 621 another Bench of seven judges held that the substantive and procedural laws and action taken under them will have to pass the test under article 14. The test of reasons and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic otherwise they would cease to be reasonable. The procedure prescribed must be just, fair and reasonable even though there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. Even executive authorities which take administrative action involving any deprivation of or restriction on inherent fundamental rights of citizens, must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness,unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirement of natural justice.
The law must therefore be now taken to be well settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 and such law would be liable to be tested on the anvil of Article 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil right or result in civil consequences would have to answer the requirement of Article 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between quasi judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi judicial inquiry is to arrive at a just decision and if a rule or natural justice is calculated to secure justice or to put in negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both. Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is thereby, conclusively held by this Court that the principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable.
This decision has been followed in numerous cases decided thereafter which need not be detailed as this is the established principle of law that even an administrative order which leads to civil consequences must be passed in consonance with the rules of natural justice.
Here in the present case it is apparent on the face of record that no opportunity was given to the petitioner before passing the impugned order.
The Apex Court in Chandra Prakash Shahi Vs. State of U.P. and others reported in 2000 (1) SCC Page 152 has held that such an order amounts to dismissal, therefore, a notice and opportunity was necessary. It has gone to hold that notice is also required under Para 541 of the Police Regulations. Recently a Division Bench of this Court has dealt the issue in Paras Nath Pandey Vs. Director, North Central Zone, Cultural Centre, Allahabad reported in 2008 Vol. (10) ADJ 283 that such order passed by the authority concerned cannot survive.
It is well settled that if order of termination is based on concealment of fact or suppression of material then termination order cannot be passed without affording an opportunity of hearing. The Apex Court as well as this Court in numerous decisions has laid down this proposition. In the cases of Kamal Nayan Mishra Vs. State of Madhya Pradesh and others reported in (2010) 2 SCC 169 and Sanjay Kumar Singh Vs. State of U.P. and others, passed in Writ Petition No. 51282 of 2007 decided on 27.01.2010, it has been held that order leading Civil Consequences, passed without opportunity of hearing is unsustainable in eye of law.
Otherwise also to get an employment now a days is a hard task and when a person is in a service, so many things depend on him. Therefore, before imposing a penalty of cancellation of selection termination/ dismissal/removal from service, the authorities empowered for imposing such penalties must take due care and caution.
In the present case as obviously pending statutory proceedings when the petitioner has brought on record the caste certificate and prayed with all humility that this aspect of the matter be considered as he has been cheated and has been made victim of the circumstances. It was the duty of the authority concerned to look into the same instead discarding the same with closed eye. Otherwise also as the petitioner's selection has been cancelled on the ground of fraud played by the petitioner, therefore, the petitioner was entitled for notice and before issuing show cause notice to the petitioner the impugned order could not have been passed.
In the result, the writ petition succeeds and is allowed. The impugned orders dated 10.11.2009, 29.1.2008 and 21.8.2007 passed by respondent nos 2, 3 and 4 being unsustainable are hereby quashed.
The matter is sent back before the respondent no. 4 with a direction to pass a fresh order after verifying the newly issued caste certificate dated 23.8.2007 by the Tehsildar concerned. In case, it is certified that the caste certificate has been issued by the officer competent and the petitioner belongs to Ahir by caste the petitioner shall be immediately reinstated in service with all consequential benefits. There shall be no order as to costs.
Order Date :- 31.5.2011 Pratima