Kamlesh Kumar vs Union Of India Thru Sec. And Others
2011 Latest Caselaw 4209 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

	Heard Sri Indrajeet Yadav for the petitioner and Sri Rakesh Mohan for Union of India.
 
2.	By this petition, the petitioner has challenged the order dated 11.3.2008 Annexure-4 of the writ petition) passed by respondent no.3 and the order dated 24.6.2008 passed by respondent no.2 (Annexure-7 of the writ petition). Vide order dated 11.3.2008 the services of the petitioner had been terminated by the Commandant II, 8th Battalion, Sashastra Seema Bal Malhipur, Shrawasti, (Uttar Pradesh) and vide order dated 24.6.2008 the appeal preferred by petitioner has been dismissed by Staff Officer (Administration), Government of India, Ministry of Home Affairs, Sashastra Seema Bal, Sector Head Quarter, FCIL Complex, Gorakhpur.

3. The brief facts of the case are that the petitioner was selected in the year 2005 and appointed w.e.f. 1.1.2006 as Constable CT (GD No. 060330361) in Sashastra Seema Bal and posted in 26th Battalion S.S.B. Pilibhit (U.P.) and later on he was transferred to 8th Battalion Malhipur, Shrawasti (Uttar Pradesh). His appointment was made against the vacancy of OBC category. On 24.12.2007 a show cause notice was issued to the petitioner by Commandant, 8th Battalion S.S.B. Malhipur, Shrawasti (U.P.) asking him to reply within fifteen days, stating therein that OBC Certificate submitted by the petitioner at the time of his selection and appointment on the post in question, was verified by the office of Commandant, 26th Battalion SSB Pilibhit, and on verification D.M. Jaunpur intimated vide his letter No. 517 dated 8.2.2007 that it was not issued from his office. Thus, being a suspicious case, one S.O. from Battalion was sent to the office of D.M., Jaunpur to enquire about the genuineness of the OBC certificate. On verification D.M., Jaunpur has intimated that the name of petitioner against the caste of AHIR was not entered in his record and it was not issued from his office. Accordingly, it was stated that the petitioner had presumably produced false OBC certificate at the time of selection for the post of Constable CT (GD) against OBC category, whereas it was made very clear in the offer of appointment dated 10.11.2005 issued to the petitioner that in case of any adverse remarks is found to be reported against the petitioner and if the OBC certificate is found to be false, the services of petitioner shall be terminated forthwith without assigning any further reason.

4. On receipt of the aforesaid show cause notice the petitioner has submitted his reply to the respondent no.3, contained in Annexure no.2 of the writ petition, stating therein that prior to the recruitment in question he approached Shri Bikrama Yadav, Advocate practising at Sadar Jaunpur for obtaining OBC certificate from the office of D.M., Jaunpur in the year 2001. The said Advocate had asked him to give a sum of Rs.300/- for furnishing the OBC certificate. Accordingly, the petitioner paid the aforesaid amount of Rs. 300/- to Shri Bikrama Yadav, Advocate in pursuant thereto he handed over OBC certificate duly signed by authorities containing seal of District Magistrate Janpur, and Tehsildar, Sadar , Jaunpur, dated 3.7.2002 (Annexure No. 1 of rejoinder affidavit). In the year 2005 the petitioner was selected to the post of Constable CT (GD) in SSB against OBC quota on producing aforesaid OBC certificate furnished by Shri Bikrama Yadav, Advocate. In the said reply the petitioner has stated that in fact he belongs to Ahir caste and comes under OBC category. Besides this, after receiving show cause notice he again approached office of D.M., Jaunpur and got prepared his fresh OBC certificate of Ahir Caste from the office of D.M., Jaunpur and aforesaid fresh OBC certificate in original was enclosed alongwith aforesaid reply of show cause notice and it was prayed through the aforesaid reply that a fresh OBC certificate submitted by the petitioner may be verified from the office of D.M., Jaunpur and in case it is found to be fake/false then his services will be terminated. The aforesaid fresh OBC certificate no. 5631 issued from the office of D.M., Jaunpur on 11.1.2008 is on record as Annexure no.3 of the writ petition. Not only this but Sri Vikrama Yadav, Advocate has also stated on affidavit that the OBC Certificate No.5941 dated 3.7.2002 furnished by him to the petitioner was genuine certificate. However, it was possible that while making entry in register some clerical mistake would have been done in the office of D.M. Jaunpur. It is further stated that without verifying the aforesaid fresh OBC certificate dated 11.1.2008 submitted by the petitioner alongwith the reply of show cause notice, the respondent no.3 has passed a impugned order dated 11.3.2008 terminating his services w.e.f. 6.3.2008 on the ground of production of fake OBC certificate for securing the selection and appointment on the post in question. The copy of impugned order dated 11.3.2008 passed by respondent no.3 is on record as Annexure no.4 of the writ petition. The appeal preferred by the petitioner has also been dismissed by the respondent no.2 vide impugned order dated 24.6.2008 hence this petition.

5. The learned counsel for the petitioner has submitted that it is not a case where petitioner belongs to other caste and not Ahir caste and has obtained any fake O.B.C. certificate of Ahir caste and in order to deceive respondents he has knowingly submitted such false/fake certificate of OBC category during his selection rather it is a case where the petitioner himself has become victim of misdeed of his counsel who appears to have supplied aforesaid fake OBC certificate to the petitioner and believing it to be true and genuine, he had submitted aforesaid certificate before respondent during the process of selection and appointment on the post in question, therefore, it can not be said at all that the petitioner has played any fraud upon the respondents for seeking aforesaid employment. In order to demonstrate his bonafide the petitioner has obtained his fresh OBC certificate belonging to Ahir caste from the office of District Magistrate, Jaunpur on 11.1.2008 and submitted the same to the respondent no.3 alongwith reply of show cause notice with a prayer that the same may be verified from the office of District Magistrate, Jaunpur. In case, it is to be found false/fake then the services of petitioner may be terminated but before verifying the same no step should be taken against him. However, respondent no.3 did not pay any heed over the reply of show cause notice submitted by the petitioner and has passed impugned order of termination of his services without addressing on that aspect of the matter. Appellate authority too did not address on that issue while dismissing the appeal filed by the petitioner.

6. Contrary to it, learned counsel appearing for respondents has supported the impugned action taken by respondents and in order to demonstrate the case of respondents he has placed the averments contained in para 4 and 6 to 9 of the counter affidavit, filed by Sri Mahesh Kumar, Second-In-Command, office of the Commandant, Sashastra Seema Bal, 8th Battalion, Malhipur, Shrawasti, Uttar Pradesh, which reads as under:-

"4. That in reply to the contents of paragraph no. 2 of the writ petition it is submitted that according to memorandum, dated 19.11.2005 (CA-1) it was informed to the petitioner that his appointment is provisional and subject to the verification of caste. If caste certificate is found false, his services is liable to be terminated. The caste certificate submitted by the petitioner during the course of selection process, and go selection, after due enquiry with regard to the validity of the caste certificate, a report was submitted by the Tehsildar Sadar, Jaunpur through its letter no. 751 dated 21.9.2007, reported that the caste certificate issued by in register serial no. 5631 dated 3.7.2002 in the name of Kamlesh Kumar Yadav S/o Sri Munnu Yadav, Village Umarpur, Tehsil Sadar, Jaunpur in the caste "Ahir" was not found, and as such in the aforesaid report dated 21.9.2007 the competent authority found that the certificate so submitted in the selection process by the petitioner is not issued, as such it is amount to a fake certificate. A true copy of the report of the Tehsildar Sadar, Jaunpur dated 21.9.2007 is being filed herewith and marked as Annexure no.2 to this counter affidavit. For bare perusal of the report submitted by the Tehsildar, Jaunpur on 21.9.2007 the respondent/authorities found the selection process of the petitioner amount to a fraud, and as such vide order dated 11.3.2008 service of the petitioner stands terminated.

6. That in reply to the paragraph no.4 it is submitted, the appeal was found not maintainable for obvious reasons in view of submitting OBC certificate no. 5631 dated 3.7.2002 before recruitment board as well as at the time of joining government service which was not issued by the concerned District Magistrate. This is further submitted that the appeal was dismissed by D.I.G. but not by respondent no.2.

7. That in reply to the paragraph no.5 it is submitted though the petitioner is AHIR by caste and on issuance of show cause notice dated 24.12.2007 (Copy enclosed) the petitioner submitted another OBC certificate dated 11.1.2008 issued from the office of DM Jaunpur but the certificate produced at the time of his selection and appointment as Constable (GD) was found fake/different and was not issued by the competent authority which was used for getting employment as such it was treated as false certificate as per terms and conditions given in offer of appointment at Sl. No. XII bearing No.54 dated 19.11.2005 (Copy enclosed).

8. That in reply to the paragraph no. 6 to the writ petition it is submitted as mentioned in para-5 above. The OBC certificate had not been found Authentic which was issued by unauthorized authority and was wrong as per offer of appointments terms and condition. On issuing him show cause notice dated 24.12.2007 for termination of service. The petitioner produced OBC certificate dated 11.1.2008 issued from the office of the DM Jaunpur whereas he had used the fake certificate for getting appointment as Constable (GD) during 2005-2006 and on verification it was confirmed from DM office, Jaunpur and found guilty of violating terms and conditions mentioned at Sl. No. XII of offer of appointment letter issued to him. Copy of verification report is enclosed.

9. That the content of paragraph 7 of the writ petition is to admitted hence denied and correct reply thereto is that there is no any proof has been submitted by the petitioner that the competent authority issuing caste certificate having mentioned its own fault during the course of issuing caste certificate, and as such the respondent/authority cannot be relied upon the apprehension of the petitioner which does not supported by the any strict proof. It is submitted that the petitioner got government service by producing false OBC certificate not issued from office of the DM Jaunpur and as per terms and conditions; laid down in offer of appointment dated 18.11.2005 he was found guilty for manipulating and cheating the government authorities at the time of his selection and employment as Constable (GD). Individual had not reported the matter to competent authority before issuance of show cause notice for termination from service."

7. From the perusal of impugned orders dated 11.3.2008 and 24.6.2008 passed by respondents no. 3 and 2 (contained in Annexures no. 4 and 7 respectively to the petition) it is clear that neither appointing/disciplinary authority nor appellate authority has addressed on the reply of the show cause notice submitted by the petitioner nor verified the OBC certificate dated 11.1.2008 (Annexure-3 of the writ petition) issued from the office of District Magistrate, Jaunpur submitted by the petitioner alongwith the reply of show cause notice before passing the impugned order of termination of services of petitioner, instead thereof, they went on saying that since the petitioner has produced fake OBC certificate during the process of his selection and appointment, therefore, his services were terminated in terms of the Rules and offer of appointment without any inquiry and without recording any further reason there for. In the counter affidavit filed on behalf of respondents also it is stated that according to the report of Tehsildar, Sadar, Jaunpur dated 21.9.2007 in the caste certificate register at Sl. No. 5631 dated 3.7.2002 the name of petitioner Kamlesh Kumar Yadav son of Sri Munnu Yadav R/o Village Umarpur, Tehsil Sadar, District Jaunpur caste Ahir was not found any mention. Thus, it is clear that the aforesaid certificate was not issued by the concerned officer on the aforesaid serial number. Therefore, it was false/fake O.B.C. certificate, accordingly his services were terminated in the terms of offer of appointment.

8. Thus, in given facts and circumstances of the case, it can be assumed that the services of the petitioner have been terminated on the alleged ground of production of fake O.B.C. certificate and playing fraud upon the respondents while seeking employment in question, therefore, the question arises for consideration that as to whether the petitioner has played any fraud upon the respondents while seeking appointment on the post in question or not?

9. The Apex Court in the case of The State of Andhra Pradesh & Anr. Vs. T. Suryachandra Rao-[ JT 2005 ( 6) SC 391=2005 (6) SCC 149), has considered the meaning of "fraud" and observed as under:

7. 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 Dr. Vimla V. Delhi Administration and Indian Bank V. Satyam Fibres ( India) Pvt. Ltd. ) .

8. . . . . . . . . .

8. 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 V. Jagannath).

9. . . . . . . . . .

10. "Fraud" and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, 'wing me into the easy hearted man and trap him into snares'. It has been defined as an act of trickery or deceit. 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 Legal Dictionary, " fraud" is defined as an intentional perversion of truth for the purpose of including 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 Indian Contract Act, 1872, defines " fraud" as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of 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 knowledge that it was false. In a leading English Case i.e. Derry and Ors. V. Peek what constitutes "fraud" was described thus: ( All ER p. 22 B-C) " 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". . . . .

11. . . . . . . . . . . . . .

12. This aspect of the matter has been considered recently by this Court in Roshan Deen V. Preeti Lal, J.T. 2001 (10) S.C. 309, Ram Preeti Yadav V. U.P. Board of High School and Intermediate Education, J.T. 2003 (Supple-1) S.C. 25, Ram Chandra Singh V. Savitri Devi and others, 2003 (8) SCC 319 and Ashok Leyland Ltd. V. State of T.N. and Another, J.T. 2004 (1) SC 289.

13. . . . . . . . . . . . .

14. " 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 be evidence on fraud; as observed in Ram Preeti Yadav's case ( supra)."

10. Thus, from the dictionary meaning or otherwise the legal position stated by the Hon'ble Apex Court in substances is that "fraud" arises out of deliberate active role of representator about a fact which he knows to be untrue, yet he succeeds in misleading the representee by making him believe to be true. The representation to become fraudulent must be of fact with knowledge that it was false. In a leading English case i.e. Derry and others Vs. Peek (1886-90) All. E.R. 1 what constitutes "fraud" was described as "fraud" is proved when it is shown that a false representation has been made (I) knowingly (II) without belief in its truth, or (III) recklessly, careless whether it be true or false. In Ram Preeti Yadav's case (supra) the Hon'ble Apex Court observed that negligence is not fraud but it be evidence on fraud. In S.P. Chengal Varaya Naidu Vs. Jagannath J.T. 1993 (6) S.C. 331 the Hon'ble Apex Court observed that a fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is deception in order to gain by another's loss. It is a cheating intended to get an advantage.

11. Now crucial question is to see that as to whether the petitioner has deliberately made any false representation before the respondents knowing it to be untrue or without believing it to be true with the design of securing something by taking unfair advantage of another. Viewing the matter from the aforesaid angle I find that it is not the case of the respondents that the petitioner belongs to other caste and does not belong to Ahir caste in OBC category and in order to deceive the respondent concerned has knowingly submitted false/fake OBC certificate for securing advantage in selection process at the cost of loss of other candidate of said O.B.C. category. Rather it is admitted in para-7 of the counter affidavit that the petitioner belongs to Ahir caste in OBC category but his services were terminated for the reason that he had submitted fake OBC certificate. In my opinion, the aforesaid view taken by respondents without verifying that as to whether the petitioner has submitted the false/fake O.B.C. certificate knowing it to be false/fake, is wholly erroneous and cannot be sustained for the reason that according to the petitioner, he has submitted the aforesaid certificate believing it to be true and genuine and when he came to know about this fact through show cause notice that aforesaid certificate was false then in order to demonstrate his bonafide the petitioner has obtained a fresh OBC certificate no. 2341 dated 11.1.2008 (Annexure-3 of the writ petition) belonging to Ahir caste from the office of District Magistrate, Jaunpur and submitted the same to the respondent no.3 alongwith reply of show cause notice with a prayer that the same may be verified from the office of District Magistrate, Jaunpur and in case it is found to be false/fake, the services of petitioner may be terminated. But respondents did not pay any heed over this aspect to the matter and did not verify the genuineness of OBC certificate no. 2341 dated 11.1.2008 (Annexure-3 of the writ petition) submitted by the petitioner alongwith reply of show cause notice.

12. In given facts and circumstances of the case I am of the considered opinion that unless aforesaid fresh O.B.C. Certificate No.2341 dated 11.1.2008 (Annexure-3 of the writ petition) submitted by the petitioner is verified from the office of District Magistrate, Jaunpur and on such verification unless it is found that petitioner does not belong to Ahir caste falling within the category of O.B.C. candidate, it is very difficult to hold that he had deliberately submitted false/fake O.B.C. certificate to deceive the respondents and thereby misled the respondents and thus played fraud upon the respondents for seeking employment in question. In this manner, unless it is established that while seeking selection and appointment on the post in question the petitioner has played fraud upon the respondents, it is very difficult for this Court to agree with the view taken by the respondents terminating the services of the petitioner on the alleged ground of fraud.

13. It is to be noted that it is common knowledge that the candidates belonging to the reserved category while seeking admission in educational courses or employment are required to furnish various certificates issued by the prescribed authorities. For said purpose they use to contact advocates and other intermediaries and after obtaining such certificate and believing it to be true and genuine if the candidate concerned submits the same before the authorities concerned for seeking employment or admission in educational courses and after verification if it is found to be forged/fake certificate, the matter ought to be inquired by the authorities concerned as to whether false/forged certificate has been submitted by the concerned candidate deliberately knowing it be untrue or false in order to deceive the authorities concerned or it is because of the reason that such certificate is furnished by the intermediary to such candidate who believing it to be true and genuine submits the same before the authorities concerned. Unless an inquiry is done and the candidate concerned is given opportunity of submitting fresh genuine certificate and unless the fact that he belongs to such reserved category is verified by the authority concerned, it would cause grave injury and irreparable loss without there being his fault. Therefore, this Court cannot ignore such phenomenon and state of affairs while dealing with the cases of such nature under Article 226 of the Constitution. In my view, in such situation the authorities concerned can remedy the grievances of candidates by permitting the candidate to demonstrate his bonafide by producing fresh certificate and by verifying its genuineness from the office of competent authority.

14. In view of the foregoing discussion, in given facts and circumstances of the case, the view taken by the respondents cannot be sustained. Accordingly the impugned orders passed 11.3.2008 and 24.6.2008 passed by respondents are hereby quashed and the petitioner is reinstated in service for limited purpose of holding fresh inquiry in the matter.

15. The respondent no.3 is directed to verify the OBC Certificate No. 2341 dated 11.1.2008 (Annexure-3 of the writ petition) submitted by the petitioner alongwith the reply of show cause notice from the office of District Magistrate, Jaunpur and in case it is found to be genuine and petitioner is found to be Ahir by caste belonging to OBC category then he shall be reinstated in service with all consequential benefits of service including full back wages, seniority and continuity of service. Such exercise shall be undertaken by the respondent no.3 within a period of two months from the date of production of certified copy of this order before him.

16. Similar view has been taken by this court in Writ Petition-A No.69274 of 2009, Vinod Kumar Yadav Vs. State of U.P. and others decided on 31.5.2011 and Writ Petition No.52994 of 2007 Km. Rehana Begum Ansari Vs. State of U.P. reported in 2010-ADJ-5-492 decided on 12th May, 2010.

17. With the aforesaid observation and direction, writ petition succeeds and allowed to the extent indicated herein before.