Ved Prakash Mishra vs State Of U.P. & Others
2012 Latest Caselaw 5663 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 

 

 
Case :- WRIT - A No. - 28624 of 2011
 

 
Petitioner :- Ved Prakash Mishra
 
Respondent :- State Of U.P. & Others
 
Petitioner Counsel :- Girijesh Tiwari
 
Respondent Counsel :- C.S.C.,R.C. Dwivedi,Rajeshwar Singh
 

 

 
Hon'ble V.K. Shukla,J.

Ved Prakash Mishra son of late Nand Kishore Mishra is before this Court questioning the validity of the order dated 22.03.2011 passed by the District Basic Education Officer, Kushi Nagar (Annexure-10 to the writ petition), wherein order of dispensation of his service has been passed and the directives have been issued for recovery of the amount in question.

Background of the case, as is reflected from the record, is that the petitioner's father, Nand Kishore Mishra had been performing and discharging duties as Head Master at primary school Naurangiya and he was to attain the age of superannuation on 30.06.1992. Petitioner claims that before his father could attain the age of superannuation, he died in harness on 27.06.1992. Petitioner claimed compassionate appointment by moving application in this regard and the Sub-Deputy Inspector of Schools submitted report on 08.03.1994 mentioning therein that the petitioner's father had died in harness and no one from the family of the deceased employee had been offered appointment, as such it was recommended to offer appointment to the petitioner. On the said recommendation dated 08.03.1994 being made, petitioner was offered appointment as assistant teacher.

While petitioner had been continuing in service, complaint had been made to the effect that the date of death of petitioner's father is17.07.1992 and by manipulating the date of death as 27.06.1992, the petitioner has succeeded in procuring appointment. On the said complaint being made, the Deputy Basic Education Officer, Padrauna, placing reliance on death certificate, extract of family register, photostat copy of the succession certificate, letter of the Ex M.L.A. as well as the fact that the papers which were prepared for obtaining post death benefits, therein the date of death of petitioner's father had been entered as 27.06.1992, submitted report on 23.09.1996. While submitting his report, the Deputy Basic Education Officer also took note of the affidavit dated 11.08.1992, wherein date of death of petitioner's father had been mentioned as 27.06.1992, and accordingly, the Deputy Basic Education Officer concluded the date of death of petitioner's farther as 27.06.1992 and based on the same, post death benefits, family pension and G.P.F. Etc. have been released and the petitioner was accordingly entitled to be rightly offered appointment on compassionate basis. Thereafter, the petitioner continued to function and subsequently, he was promoted as Head Master at Purva Madhyamik Vidyalaya Dhokraha, Block Dudhahi, District Kushi Nagar.

Petitioner submits that once again issue was sought to be raised that the petitioner had procured appointment by practicing fraud and large scale manipulations are there. On the said complaint being made, notice dated 23.11.2010 had been issued mentioning therein that complaint had been received against the petitioner that date of death of petitioner's father has been changed and fictitious appointment has been procured and qua the same enquiry has been got conducted and it was found that the date of death of petitioner's father is 17.07.1992 and not 27.06.1992, and accordingly, petitioner should submit his reply within three days. Thereafter, another letter was sent on 02.12.2010 informing the petitioner that the petitioner had not at all put forth his point of view before the District Basic Education Officer, and accordingly, petitioner was again given three days' time to put forth his point of view. Petitioner submits that thereafter he submitted his reply along with enclosures on 03.12.2010, and thereafter order has been passed withholding salary of the petitioner with effect from 23.12.2010 and charge sheet dated 27.01.2011 has been issued to the petitioner. After receiving the said charge sheet, petitioner once again submitted his reply on 28.01.2011, and thereafter, order impugned has been passed, wherein the District Basic Education Officer has proceeded to mention that the explanation submitted by the petitioner is unsatisfactory and it has been found that manipulations and manoeuvring have been done in procuring appointment on compassionate basis and accordingly appointment of the petitioner is bad. Aggrieved by the said order, petitioner has rushed to this Court.

On presentation of writ petition, this Court proceeded to pass following order on 23.05.2011:

"Let the Gram Pacnhayat Adhikari, Vikash Khand Nedu Naurangiya , District Kushi Nagar appear before this Court on the next date along with original death register of the year 1992 on the basis whereof he has issued the certificate, copy whereof has been enclosed as Annexure-15 to the writ petition.

List on 30.05.2011."

Thereafter impleadment application had been filed by Rama Yadav and the same had been directed to be taken on record. The documents annexed by Rama Yadav reflects that the deceased employee Nand Kishore Mishra had taken loan of Rs.5500/- from the Cooperative Bank on 02.07.1992 from Pipra Bazar, Kushi Nagar and Rs.1000/- was withdrawn by him from the said account on 09.07.1992 and further substitution application had been filed by the brother of the petitioner before the Sub-Divisional Magistrate, Padrauna, wherein date of death of his father has been mentioned as 17.07.1992. Further documents have also been brought on record for the purpose of substantiating the fact that Nand Kishore had expired subsequent to 30.06.1992. This Court proceeded to examine the original death register, wherein date of Nand Kishore has been recorded as 27.06.1992. The order passed by this Court on 04.07.2011 is being extracted below:

"Impleadment application filed by Rama Yadav is taken on record. Documents have been filed suggesting that the deceased employee Nand Kishore Mishra had taken loan of Rs. 5500/- on 02.07.1992 from Co-operative Bank, Pipra Bazar, District Kushi Nagar and thereafter Rs. 1000/- was withdrawn by him from the said account on 09.07.1992.

In the substitution application filed by the brother of the petitioner before the Sub-Divisional Magistrate, Padrauna, District Kushi Nagar, the date of death of his father has been mentioned as 17.7.1992. Other documents have also been brought on record for the purpose of alleging that N.K. Mishra had expired subsequent to 30.6.1992.

Petitioner prays for and is granted two days time to file reply to the affidavit filed in support of the impleadment application.

Put up on Thursday i.e. 07.07.2011.

The original death register has been examined by the Court today. The date of� death of Naand Kishore Mishra has been mentioned as 27.6.1992. The original is returned to the Standing Counsel."

Thereafter, the matter was taken up on 12.07.2011, and as serious issue had been raised as to whether petitioner's father had expired on 27.06.1992 or subsequent to 30.06.1992, counter affidavit had been asked for. The order dated 12.07.2011 is extracted below:

"There is a serious issue as to whether the father of the petitioner expired on 27.6.1992 or subsequent to 30.6.1992 in as much as the petitioner has been offered compassionate appointment on the plea that the retirement date of the petitioner's father was� 30.6.1992.

In the counter affidavit filed besides other two vital facts have been stated (a) that� an application for substitution was made by Chandra Prakash son of Late Nand Kishore Mishra the real brother of the present petitioner in Appeal No. 23 under section 210 of the Land Revenue Act in the court of Pargana Adhikari, Padrauna. A copy of the application so filed brought on record shows that it has been stated that Nand Kishore Mishra expired on 17.7.1992. In reply to the said averments in the rejoinder the petitioner has filed a copy of an application of the same date i.e. dated 11.8.1992 filed before the same court by the same person namely Chandra Prakash Mishra wherein the date of death of Nand Kishore Mishra has been shown as 27.6.1992. The application is stated to have been supported by an affidavit.

Both the said documents before this Court are the photostat copy of the certified copy of the application issued by the court concerned.

Similarly in paragraph 4 of the counter affidavit filed by Rama Yadav it has been stated that Nand Kishore Mishra had obtained loan of Rs.5500/= from the Cooperative Bank, Pipra Bazar, district Kushinagar on 2.7.1992. From the said loan Account he had withdrawn a sum of Rs.1000/= on 9.7.1992.

The averments made in that regard have been denied by way of rejoinder affidavit and it has been stated that no loan was ever obtained by Nand Kishore Mishra from Cooperative Bank Pipra Bazar, district Kushinagar nor any money was withdrawn on 9.7.1992.

The correctness or otherwise of the stand taken by respective parties can be adjudicated by this Court after summoning the original records or report through a competent district authority after examining the original records of the court/Bank concerned.

Accordingly, it is provided that the District Magistrate Kushinagar shall summon the records of the Appeal No. 23 under section 210 of the Land Revenue Act Raj Kali v. Nand Kishore Mishra and shall examine as to which of the substitution application filed by the parties dated 11.8.1992 exist on record. He shall forward a photostat copy of the same along with his report. The District Magistrate shall further summon the original records from the Cooperative Bank, Pipra Bazar, Kushinagar in respect of the loan taken in the month of July,1992 and shall examine the same in the presence of the Branch Mangar of the Bank and shall submit his report as to whether any loan was sanctioned in the name of Nand Kishore Mishra son of Braj Narain Mishra and as to whether any money was withdrawn from the same by Nand Kishore Mishra in the month of July, 1992 or not. Let necessary be done within fifteen days from today.

Standing counsel is directed to forward a copy of this order to the District Magistrate, Kushinagar who shall submit the report as indicated above on or before 27th July,2011.

List on 27th July,2011."

Thereafter, on the next date, i.e., 01.08.2011, this Court proceeded to examine the original application filed under Section 210 of the U.P. Land Revenue Act and noted that overwriting in the date of death of Nand Kishore in the application as well as in the affidavit is writ large. This Court also proceeded to note that the document filed as Annexure-1 to the rejoinder affidavit said to have been filed in the proceedings under Land Revenue Act is not available on record. This Court on 01.08.2011 proceeded to pass the following order:

"Standing counsel submits that a report from the District Magistrate has been obtained which discloses (a) that a cheque of Rs.1,000/= was withdrawn from Account No. 176 Ledger No. 2 Page 307. This account was admittedly in the name of Nand Kishore Mishra. It has further been informed that the application which was filed before the S.D.M. dated 11.8.92 by the brother of the petitioner in proceedings under section 210 of the Land Revenue Act the date of death of Nand Kishore Mishra has clearly been overwritten both in the application as well as in the affidavit. According to the District Magistrate 17.7.92 has been overwritten to read 27.6.92 at both places.

Counsel for the Basic Shiksha Adhikari has produced the original records of the proceedings of application filed under section 210 of the Land Revenue Act. Over writing in the date of death of Nand Kishore Mishra in the application as well as in the affidavit is writ large on the original records. This Court finds that the document Annexure-1 to the rejoinder affidavit along with the affidavit said to have been filed in the proceedings under section 210 of the Land Revenue Act is not available on record.

The Deputy Collector, Padrauna was instructed to make a spot inquiry and on inquiry two teachers of the College informed that Nand Kishore Mishra expired seventeen days after retirement date and they had attended the last rites of Nand Kishore Mishra.

It has become necessary for this Court to have the facts as informed by the District Magistrate, Kushinagar on record so that the petitioner may have an opportunity to reply. District Magistrate may accordingly file an affidavit stating the facts along with attending documents. Similarly Basic Shiksha Adhikari is directed to file an affidavit bringing on record the photostat copy of the applications and the affidavit made by the brother of the petitioner under section 210 of the Land Revenue Act dated 11.8.92 by Monday next.

Put up on 8th August,2011."

Thereafter personal affidavits of the District Magistrate and the District Basic Education Officer have been filed on 08.08.2011 and 06.08.2011, respectively. The District Magistrate pursuant to directives issued by this Court, called for report from the Deputy Collector, Padrauna with regard to actual date of death of petitioner's father Nand Kishore Mishra and enquiry has also been made from the District Cooperative Bank, Kushi Nagar. The Deputy Collector, Padrauna vide his report dated 25.07.2011 has informed the District Magistrate that he has recorded the statement of two teachers, who were working in primary pathshala Naurangiya along with late Nand Kishore, the petitioner's father, namely Khajanchi Pasad and Kukur Prasad, and both of them categorically sated that the petitioner's father had attained the age of superannuation on 30.06.1002 and died on 17.07.1992 and they had participated in his funeral. The District Magistrate also submitted that he had made enquiry from the District Assistant Registrar, Cooperative Societies, who informed that Cooperative Bank had sanctioned loan of Rs.5500/- in favour of Nand Kishore on 02.07.1992 and Rs.1000/- was withdrawn by him on 09.07.1992. The District Magistrate also proceeded to mention that the record of appeal No. 23 under Section 210 of U.P. Land Revenue Act, Raj Kali vs. Nand Kishore pending in the court of Sub-Divisional Magistrate, had been perused; same reflects that initially the date of death was written as 17.07.1992 in the application as well as in affidavit so filed, and subsequently, there has been overwriting by changing the same to 27.06.1992.

The affidavit filed by the District Magistrate before this Court, is supported by the statements of the two teachers, namely, Khajanchi Prasad and Kukur Prasad, the report of the Deputy Collector, Padrauna, Enquiry report of the District Magistrate, copy of the letter of the District Assistant Registrar, Cooperative Societies, and copy of the substitution application moved in appeal No. 23 under Land Revenue Act as well as the affidavit filed in support thereof. Personal affidavit filed by the District Basic Education Officer is identical in nature and contains the same set of documents.

Thereafter, this Court on 13.10.2011 proceeded to pass the following order:

"District Assistant Registrar, Cooperative Societies, U.P. Kushinagar in his report dated 25th July, 2011 has refused to comment on the allegation that a� loan of Rs.5,500/- was sanctioned in favour of Nand Kishor on 2nd July, 1992 and that from the said account he had withdrawn Rs.1000/- on 9th July, 2011, only because the� loan ledger was� not available in the Branch of District Cooperative Bank Ltd., Pipara Bazar.

The Court would like to know� as to where original loan register is. It appears that for the reasons best known to the Assistant Registrar, he has not cared to ensure production of the relevant loan register.

In the circumstance, this Court directs as follows:

District Assistant Registrar, Cooperative Societies, U.P. Kushinagar shall ensure production of the original loan register pertaining to loan sanctioned in favour of Nand Kishor from the Branch Manager, District Cooperative Bank Ltd., Pipara Bazar and after verification of the loan register submit his report along with the photo stat copies of the relevant page of the loan register, with regard to the fact as to whether the loan was sanctioned in favour of Nand Kishor on 2nd July, 1992 and as to whether he had withdrawn a sum of Rs.1000/- therefrom on 9th July, 1992. The Assistant Register shall also remain present before this Court on 19th October, 2011 along with loan register.

Put up this matter on 19th October, 2011.

Learned Standing Counsel may forward a copy of this order to the District Assistant Registrar, Cooperative Societies, U.P. Kushinagar for necessary compliance.

A certified copy of this order be issued to the learned Standing Counsel by day after tomorrow i.e. 15th October, 2011."

As the order dated 13.10.2011 had not been complied with, this Court on 19.10.2011 proceeded to pass the following order:

"The order of the Court dated 13.10.2011 has not been complied with.

Standing Counsel is directed to forward a copy of the order dated 13.10.2011 to the Secretary, Cooperative Societies U.P. Government, Lucknow, who may ensure that the District Assistant Registrar, Cooperative Society U.P., Kushinagar appears before this Court on the next date along with relevant records and his affidavit containing the explanation asked for by this Court under the said order, failing which the Secretary himself shall appear before this Court on the next date with all relevant records.

List on 03.11.2011."

On 03.11.2011, District Assistant Registrar, Cooperative Societies was personally present in Court and produced only part of the records and the next date fixed in the case was 21.11.2011 on which date entire records were produced and affidavit had also been filed by the District Assistant Registrar. On 21.11.2011 this Court proceeded to pass following order:

"The Assistant Registrar shall file his personal affidavit by the next date after examining the ledger in respect of the cheque which has been encashed from the account of Nand Kishor on 09.07.1992. The Assistant Registrar shall indicate from the said ledger account as to whether the cheque has to be treated as one issued for self or the cheque had been issued in the name of another person or it was an account payee cheque. The earlier entries of the ledger must also be examined by the Assistant Registrar along with the Bank Rules.

Put up on 30.11.2011."

On 19.12.2011 the District Assistant Registrar again filed his personal affidavit in consonance with the order dated 21.11.2011 mentioning therein that at the point of time when transaction had taken place on 09.07.1992 one Ramesh Pandey, who was cashier, had been summoned before him on 14.12.2011 and he made categorical statement of fact that Nand Kishore Mishra himself had appeared on 09.07.1992 to collect the cheque and withdraw the amount and the entry was made in his own handwriting and he had handed over the cash to him. To the affidavits so filed from time to time opportunity had been given to the petitioner to file rejoinder affidavit and there exists on record the rejoinder affidavit dated 07.07.2011, but the same is in reference to the counter affidavit filed by proposed respondent No.6. Rejoinder affidavit dated 11.07.2011 is in reference to the counter affidavit filed by respondent Nos. 2, 3, 4 and 5. Rejoinder affidavit dated 16.06.2011 is in reference to the affidavit filed by the District Magistrate, Kushi Nagar. Another rejoinder affidavit of the same date is in reference to the affidavit filed by the District basic Education Officer, but the same also proceeds to mention details of the District Magistrate and the reason appears to be obvious, as contents of the affidavits filed by the District magistrate and the District Basic Education Officer are one and the same. Rejoinder affidavit dated 17.02.2012 is in reference to the personal affidavit filed by the District Assistant Registrar Cooperative Societies.

After pleadings mentioned above have been exchanged and record has been produced by the District Basic Education Officer, present writ petition has been taken up for final hearing and disposal with the consent of the parties.

Sri Girjesh Tiwari, learned counsel for the petitioner, contended that in the present case disciplinary proceedings so undertaken was in complete violation of the principles natural justice, as after reply had been submitted by the petitioner, at no point of time any date, time or place had been fixed for conducting the enquiry and merely on surmises and conjectures order of dismissal from service had been passed. Further submission has been made that even the report submitted before this Court inspires no confidence at all and there is voluminous documentary evidence, inclusive of public documents also, which clearly suggested that the date of death had been rightly recorded as 27.06.1992, and in view of this writ petition deserves to be allowed.

Countering the same submissions, learned standing counsel as well as Rajeshwar Singh, Advocate and R.C. Dwivedi, Advocate, representing the respondents, contended that this was a glaring case of fraud and manipulations and claim of the petitioner had been exposed from the reports so submitted, and in view of this writ petition should be dismissed, as any interference with the impugned order would amount to perpetuating the illegality in question.

After respective arguments have been advanced, factual situation which has so emerged in the present case is that the petitioner's father, Nand Kishore Mishra had been functioning as Head Master at prmary school Naurangiya. Petitioner claims that he died in harness on 27.06.1992 and in view of this, he was entitled for compassionate appointment, and accordingly, he had applied for grant of compassionate appointment. On the recommendation made by the Sub-Deputy Inspector of Schools wherein he had categorically mentioned that the petitioner's father had died on 27.06.1992, petitioner was offered appointment on compassionate basis. The fact of the matter is that by treating the date of death of petitioner's father as 27.06.1992 and accepting this fact that the petitioner's father would have continued in service up to 30.06.1992 appointment had been offered to the petitioner on 29.01.1996 on compassionate basis

After appointment had been offered to the petitioner, complaint was made that the appointment of the petitioner was based on fraud and manipulation, as his father had actually died on 17.07.1992 after attaining the age of superannuation on 30.06.1992, and incorrectly, he has been shown to have died on 27.06.1992. In support of his contention, the complainant Rama Yadav had produced documents in reference to on going proceedings under the Land Revenue Act, wherein Chandra Prakash Mishra, the brother of the petitioner had moved an application for substitution mentioning the date of death of his father as 17.07.1992 and affidavit to the same effect had also been fled on 11.08.1992, wherein signature of Chandra Prakash Mishra had been appended. It was also mentioned herein that a sum of Rs.1000/- had been withdrawn by Nand Kishore Mishra himself on 09.07.1992 and the two teachers of the same very primary school, where Nand Kishore Mishra had been functioning, have deposed that the date of date of late Nand Kishore Misha is 17.07.1992 and they had even participated in his funeral. The Sub-Deputy Inspector of Schools submitted report placing reliance on the death certificate, extract of family register, succession certificates and the letter of Ex M.L.A. and also proceeded to mention that the post death benefits had been extended on the basis of the same date of death, i.e., 27.06.1992 and not only this, he had also examined the Xerox copy of the affidavit dated 11.08.1992 and concluded that the date of death of the petitioner's father was 27.06.1992. This is true that after the said report had been submitted on 23.09.1996 matter subsided, but once again it is reflected that in the year 2010matter cropped up and complaint has been made against him before the District Basic Education Officer, and on the said complaint being made enquiry has been got conducted, wherein it has been found that the date of death of petitioner's father had been 17.07.1992 and not 27.06.1992. Petitioner was accordingly issued show cause notice dated 23.11.2010 followed by notice dated 02.12.2010. The petitioner submitted his reply on 03.12.2010. Thereafter charge sheet was issued to the petitioner informing him that his salary has been withheld, as he had succeeded in procuring appointment by way of fraud and manipulation. Petitioner once again submitted his reply and thereafter, the District basic Education Officer proceeded to pass an order dispensing with the services of the petitioner.

The order passed by the District Basic Education Officer in normal course of business cannot be approved of for the simple reason that once show cause notice had been issued and reply had been submitted by the petitioner, then objectively said reply ought to have been considered, instead of proceeding to mention that the reply submitted was not satisfactory. Once show cause notice is issued and reply is invited to the same, then as the reasons are live link in between the contents and conclusion, as such some reason worth the name should be given as to why the reply submitted by the petitioner has not been found satisfactory. Here in the present case, this much is reflected that one Akhilesh Yadav, who was appointed as Enquiry officer, submitted his report, and hereafter, the District Basic Education officer, Kushinagar has proceeded to pass he order. The procedure adopted in the present case cannot be approved of, as the order passed cannot be said to be in consonance with the principles of natural justice. Once regular departmental proceedings are to be undertaken for dispensing with the services of the petitioner, then the proceedings ought to have been conducted strictly in tune with the procedure as laid down in statute books. From the order dated 22.03.2011 this much is clear that the reply submitted by the petitioner has not at all been considered and mere mention has been made that the reply is not satisfactory, and coupled with this, on the enquiry report submitted by the Inquiry officer, order impugned has been passed and the enquiry officer has also submitted report, without fixing any date, time and place for holding enquiry.

Disciplinary proceedings qua petitioner is governed by statutory rules, known as, U.P. Basic Education Staff Rules, 1973 and sub-rule (3) of Rule 5 provided that procedure laid down in Civil Service (Classification, Control and Appeal) Rules as applicable in the State of U.P., qua Government Servants, as far as possible, be followed in disciplinary proceedings.

In the present case Rules 6, 7 and 8 of the U.P. Government Servant (Discipline and Appeal) Rues, 1999 are necessary to be looked into, and for ready reference, they are being quoted below:

"6. Disciplinary Authority.- The appointing authority of a Government servant shall be his Disciplinary Authority who, subject to the provisions of these rules, may impose any of the penalties specified in Rule 3 on him.

Provided that no person shall be dismissed or removed by an authority subordinate to that by which he was actually appointed.

Provided further that the Head of the Department notified under the Uttar Pradesh Class II Services (Imposition of Minor Punishments) Rules, 1973 subject to the provisions of these Rules shall be empowered to impose minor penalties mentioned in Rule 3 of these rules.

Provided also that in the case of a Government servant belonging to Group 'C' and 'D' posts, the Government, by a notified order, may delegate the power to impose any penalty, except dismissal or removal from service under these rules, to any Authority subordinate to the Appointing Authority and subject to such conditions as may be prescribed therein.

7. Procedure for imposing major penalties.- Before imposing any major penalty on a Government servant, an inquiry shall be held in the following manner-

(i) The Disciplinary Authority may himself inquire into the charges or appoint an Authority subordinate to him as Inquiry Officer to inquire into the charges.

(ii) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge-sheet. The charge-sheet shall be approved by the Disciplinary Authority:

Provided that where the Appointing Authority is Governor, the charge-sheet may be approved by the Principal Secretary or the secretary, as the case may be, of the concerned department.

(iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidences and the name of witnesses proposed to prove the same along with oral evidences, if any, shall be mentioned in the charge-sheet.

(iv) The charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and Inquiry Officer shall proceed to complete the inquiry ex parte.

(v) The charge-sheet, along with the copy of documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records in case the charge-sheet could not be served in aforesaid manner the charge-sheet shall be served by publication in a daily newspaper having wide circulation:

Provided that where the documentary evednce is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry Officer.

(vi) Where the charged Government  servant appears and admits the charges, the Inquiry Officer shall submit his report to the Disciplinary Authority on the basis of such admission.

(vii) Where the charged Government servant denies the charges the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidences, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence;

Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness.

(viii) The Inquiry Officer may summon any witness to give evidence or require any person to produce documents before his in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witness and Production of Documents) Act 1976.

(ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges.

(x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the service of the notice on his or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant.

(xi) The Disciplinary Authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge.

(xii) The Government servant may take the assistance of any other Government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the presenting officer appointed by the Disciplinary Authority is a legal practitioner or the Disciplinary Authority having regard to the circumstances of the case so permits

Provided that this rule shall not apply in following cases:

(i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or

(ii) Where the Disciplinary Authority is satisfied, that for reason to be recorded by it in writing, that it is not reasonably impracticable to hold an inquiry in the manner provided in these rules; or

(iii) Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules.

8.Submission of enquiry report.- When the inquiry is complete, the Inquiry Officer shall submit its inquiry report to the Disciplinary Authority along with all the records of the inquiry. The Inquiry report shall contain a sufficient record of brief facts, the evidence and statement of the findings on each charge and the reasons thereof. The Inquiry Officer shall not make any recommendation about the penalty."

A bare perusal of the aforesaid Rules would go to show that full fledged procedure has been provided for in the matter of procedure to be adhered to while making departmental enquiry, being in consonance with principle of natural justice and rule of fair play.

At this juncture the view point of this Court is being looked into. Division Bench of this Court in the case of Sharad Kumar Verma v. State of U.P. and others (2006) 110 FLR 630, has taken the view that even if it is accepted that petitioner was given adequate opportunity to inspect record, the present inquiry proceeding cannot be sustained as admittedly after submission of reply to the charge sheet,Inquiry Officer did not give any opportunity to the petitioner to participate in the inquiry nor fixed any date . Further it has been held that charges unless proved, can not form basis of any punishment, and in this background, disciplinary proceedings are vitiated. Paragraphs 9, 10, 11 and 12 of the judgment being relevant are being quoted below:

"9 Even if it is accepted that the petitioner was given adequate opportunity to inspect record, the present enquiry proceeding cannot be sustained, as, admittedly after submission of reply to the charge sheet, the enquiry officer did not give any opportunity to the petitioner to participate in the inquiry nor fixed any date for leading evidence either to the department or to the delinquent officer. In fact, the requests dated 12.10.1998 and 26.10.1998 (annexures-5 and 6) have not at all been considered and the representation dated 6.6.2000 (Annexure-7) has been taken as reply to the charge sheet by the enquiry officer. This fact is evident from the averments made in para 19 of the counter affidavit. The State admits that the enquiry officer did not fix any date, time or place for holding the enquiry or for adducing evidence and the petitioner was also not called by him to participate in the enquiry after submission of reply to the charge-sheet but defends the order by emphatically asserting that since the charges were based on documents, no oral enquiry was needed. The argument is that charges stood proved by documentary evidence, which were available with the enquiry officer and, therefor,e no illegality has been committed, if the petitioner was not called for any oral hearing and no oral evidence was led. In support of the submission, it has also been argued that the petitioner in his reply dated 6.6.2000 has only payed that an impartial enquiry report be submitted and had not asked for any personal hearing or opportunity to adduce evidence.

10. This question has come up before this Court very often and the Court had been explaining in all the cases of departmental proceeding s that if the delinquent denies the charges then whether he asks for personal hearing or opportunity to participate in the proceedings or not, it is the bounden duty of the enquiry officer to afford such an opportunity. The enquiry officer requires that the charges levelled against the delinquent officer should stand proved on the basis of the material on record and the necessary evidence, which may be oral or documentary or both. The delinquent has not participated in the enquiry despite the opportunity being given is a separate issue but where no opportunity is afforded, the enquiry stands vitiated. The petitioner submitted his reply to the charge-sheet on 12.10.1998 and 21.10.1998 and in both the replies, he did not accept the charges but expressed his inability to give complete answer in t he absence of the documents being supplied. In the representation dated 6.6.2000 again the petitioner raised the same plea and prayed that impartial enquiry report be submitted. The aforesaid request including the representation of the petitioner by no stretch of imagination can constitute an admission on his part to the charges levelled nor would mean that he has agreed for submitting of the enquiry report without associating the petitioner and without giving opportunity to lead evidence.

11. In departmental proceedings,the charges unless proved cannot from the basis of any punishment. The standard of proof is different as against the required standard in the case of a criminal trial but the charges levelled must stand proved on the basis of the relevant material. The moment charge is required to be proved, the necessity would arise for adducing evidence,which may be documentary or oral or both. The burden to prove charges lies upon the departmental, therefore, the department owes its liability first to adduce evidence and take steps for proving the charge. It is after this stage that the delinquent would be required to rebut the evidence adduced an also to cross examine the witnesses produced or to nullify the documentary evidence by adducing such evidence, as may be necessary and may be available or to show the unworthiness of the documents which are sought to be relied upon but this can only be done if the enquiry officer does not fixes a date for adducing evidence and not otherwise. Merely because the delinquent did not say so in so many words about his participation in the enquiry despite the charges not being admitted to him and they having been denied, the enquiry officer does not stand absolve of his legal obligation of holding enquiry in the manner prescribed. It is to be kept in mind that denial of charges and admission of the charges cannot be taken on the same footing. There may be a case where the delinquent denies the charges specifically and there may be a case where the delinquent does not refer to the charge but does not admit the charge and in such a case also the enquiry officer would be under legal obligation to hold the enquiry to see that the charges are proved or not. It is only where in a case the delinquent admits the charge, the department may not lead any evidence before the enquiry officer and the charge can be taken to be proved, as the facts admitted need not be proved.

12. In the instant case, admittedly the aforesaid procedure was not followed an d that at no point of time the petitioner was associated with the enquiry and, therefore, he could not get any opportunity to rebut the documentary evidence, which was relied upon nor was in a position to adduce any evidence in rebuttal. The entire proceedings was thus conducted in violation of the principles of natural justice. The charges thus cannot be said to be proved against the petitioner and the enquiry stands vitiated on this ground alone."

Division Bench of this Court in the case of Subhash Chandra Sharma v. Managing Director, U.P. Co-operative Spinning Mills Federation Ltd. Kanur, 1999 AWC ,3227, has taken the view that for enquiry, date, time and place has to be fixed. Relevant paragraph 4 of the said judgment is being quoted below:

"4. Several points have been raised in the petition, but this petition deserves to be allowed on one ground alone, and it is not necessary to go into the other grounds. In paragraph 5 of the petition, it has been stated that no enquiry was held nor any date for holding the enquiry was intimated to the petitioner nor was any evidence led in the said enquiry. The reply to paragraph 5 of the petition is contained in paragraph 5 of the counter affidavit. There is no denial in paragraph 5 of the counter affidavit to the allegation in paragraph 5 of the writ petition that no date for enquiry was fixed nor any evidence led in the said enquiry. All that has been said in paragraph 5 of the counter-affidavit is that in the charge-sheet fifteen days' time was given to the petitioner to submit his reply, and thus the date in the enquiry was fixed. In our opinion, this does not mean that the date for the enquiry was fixed. The charge-sheet is Annexure-3 to the writ petition and a perusal of the same shows that no date was fixed for the enquiry in the same nor was any date fixed in the supplementary charge-sheet. Thus, the allegation in paragraph 5 of the writ petition that neither the date for the enquiry was fixed nor evidence led in the same stands unrebutted. In paragraph 5 of the counter-affidavit, it has been alleged that petitioner had asked for some documents, but he was only allowed to see the documents. We are of the opinion this again does not mean that any date for the enquiry was fixed nor was any oral evidence led in the enquiry. In fact it has been admitted in paragraph 5 of the petition that no oral evidence was produced by the management."

Hon'ble Apex Court in the case of State of Uttaranchal vs. Kharak Singh, 2008 (118) F.L.R. 1112, as to in what way and manner domestic enquiry is to be concluded, has given guidelines. Relevant portion of the said judgment contained in paragraphs 5 to 11 of the said judgment is being quoted below:

"5. Before analyzing the correctness of the above submissions, it is useful to refer various principles laid down by this Court as to how enquiry is to be conducted and which procedures are to be followed.

6. The following observations and principles laid down by this Court in Associated Cement Co. Ltd. v. The workmen and another, 1963 (7) FLR 269 (SC) are relevant:

".............In the present case, the first serious infirmity from which the enquiry suffers proceeds from the fact that the three enquiry officers claimed that they themselves had witnessed the alleged misconduct of Malak Ram. Mr. Kolah contends that if the Manager and the other officers saw Malak Ram committing the act of misconduct, that itself would not disqualify them from holding the domestic enquiry. We are not prepared to accept this argument. If an officer himself sees the misconduct of a workman, it is desirable that the enquiry should be left to be held by some other person who does not claim to be an eye-witness of the impugned incident. As we have repeatedly emphasized, domestic enquiries must be conducted honestly and bona fide with a view to determine whether the charge framed against a particular employee is proved or not, and so, care must be taken to see that these enquiries do not become empty formalities. If an officer claims that he had himself seen the misconduct alleged against an employee, in fairness steps should be taken to see that the task of holding an enquiry is assigned to some other officer. How the knowledge claimed by an enquiry officer can vitiate the entire proceedings of the enquiry is illustrated by the present enquiry itself.........."

.............It is necessary to emphasise that in the domestic enquiries, the employer should take steps first to lead evidence against the workman charged, give an opportunity to the workman to cross examine the said evidence and then should the workman be asked whether he wants to give any explanation about the evidence led against him. It seems to us that it is not fair in domestic enquiries against industrial employees that at the very commencement of the enquiry, the employee should be closely cross-examined even before any other evidence is led against him. In dealing with domestic enquiries held in such industrial matters, we cannot overlook the fact that in a large majority of cases, employees are likely to be ignorant, and so, it is necessary not to expose them to the risk of cross-examination in the manner adopted in the present enquiry proceedings. Therefore, we are satisfied that Mr. Sule is right in contending that the course adopted in the present enquiry proceedings by which Malak Ram was elaborately cross-examined at the outset constitutes another infirmity in this enquiry."

7. In Managing Director, ECIL, Hyderabad and others v. B. Karunakar and others, 1993 (67) FLR 1230 (SC), it was held:

"Where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached.

While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report. the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the 42nd Amendment. The second stage consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. But before the Forty-second Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which representation of the employee against the enquiry officer's report would be considered. Now the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence in respect of the charges.

Article 311 (2) says that the employee shall be given "reasonable opportunity of being heard in respect of the charges against him". The finding on the charges given by a third person like the enquiry officer, particularly, when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. The proviso to Article 311 (2) in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the enquiry officer's report and conclusion of such reply by the disciplinary authority also constitute an integral part of such inquiry.

Hence, when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt of innocence of the employee with regard to the charges leveled against him. That right is part of the employee's right to defend himself against the charges leveled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.

8. In Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. And another, 1999 (81) FLR 475 (SC), it was held:

"34. But in cases where the termination is preceded by an inquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the Officer and where on the basis of such a report, the termination order is issued, such an order will be violative of principles of natural justice inasmuch as the purpose of the inquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental inquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employees conduct but are cases where the employer has virtually accepted the definitive and clear findings of the Inquiry Officer, which are all arrived at behind the back of the employee - even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive, in such cases."

9. In Syndicate Bank and others v. Venkatesh Gururao Kurati, 2006 (108) FLR 1043 (SC), the following conclusion is relevant:

"18. In our view, non-supply of documents on which the Enquiry Officer does not rely during the course of enquiry does not create any prejudice to the delinquent. It is only those documents, which are relied upon by the Enquiry Officer to arrive at his conclusion, the non-supply of which would cause prejudice being violative of principles of natural justice. Even then, the non-supply of those documents prejudice the case of delinquent officer must be established by the delinquent officer. It is well settled law that the doctrine of principles of natural justice are not embodied rules. It cannot be put in a straitjacket formula. It depends upon the facts and circumstances of each case. To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice."

10. In regard to the question whether an enquiry officer can indicate the proposed punishment in his report, this Court, in a series of decisions has pointed out that it is for the punishing/disciplinary authority to impose appropriate punishment and enquiry officer has no role in awarding punishment. It is useful to refer to the decision of this Court in A.N.D Silva v. Union of India, 1962 Supp 1 SCR 968, wherein it was held:

"In the communication addressed by the Enquiry Officer the punishment proposed to be imposed upon the appellant if he was found guilty of the charges could not properly be set out. The question of imposing punishment can only arise after enquiry is made and the report of the Enquiry Officer is received. It is for the punishing authority to propose the punishment and not for the enquiring Authority."

11. From the above decisions, the following principles would emerge:

(i)The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.

(ii)If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.

(iii)In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged, give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.

(iv)On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all concerned materials relied on by the enquiry officer to enable him to offer his views, if any."

The matter however, will not end here. In normal course of business, this Court would have allowed the writ petition with direction to conduct denovo enquiry, but since subsequent developments have taken place before this Court, as this Court has proceeded to engage the District Magistrate, District Basic Education Officer and the District Assistant registrar, Cooperative Societies to make enquiry and submit report and qua the same opportunity has also been provided to the petitioner to rebut the aforesaid report; in view of this once this Court has taken upon itself to decide the serious issue as to whether the father of the petitioner had expired on 27.06.1992 or subsequent to 30.06.1992,and before this Court material has been produced, that he died on 09.07.1992 then this Court cannot shut its eye and ignore these materials and remand the matter back for re-enquiry into the matter as a matter of course. This Court at this juncture proceeds to note down the distinction in between regular departmental proceedings held in the direction of imposing punishment provided for under the Rules and the action taken for cancellation of appointment. Departmental action by way of disciplinary proceeding is undertaken for misconduct being committed by imposition of various shades of punishment provided for on charges being brought home, whereas in the matter of cancellation of appointment, the very entry in service is subject matter of enquiry. The case in hand is pertaining to cancellation of appointment, as appointment has been alleged to have been procured by way of fraud. While taking regular disciplinary proceedings, procedure prescribed for imposing minor penalty major penalty has to be adhered and prescribed punishment can be awarded, whereas in the matter of cancellation of appointment mere reasonable opportunity to show cause is good enough, and on cancellation of appointment, the net result is that contract of service, that came into existence, never existed, as it was an outcome of fraud/ manipulation.

Apex Court in the case of State of Chattisgarh Vs. Dhirjo Kumar Sengar 2009 (13) SCC 600, took the view while considering the matter of cancellation of compassionate appointment took the view, that when material brought on record would suggest otherwise, and the authority finds that offer of appointment had been obtained as a result of fraud practiced on the Department, the authority can always cancel the same. View has been further taken that where fraud is substantiated by available evidence, the principle of natural justice has no major role to play, and such appointment obtained by fraud is fraud not only on the department but fraud on the constitution also.

This Court in the case of Sushil Kumar Pandey vs. State of U.P. and others, 2010 (5) SSC 3242, has approved the cancellation of compassionate appointment based on fraud, and has mentioned that once High Court Judge himself summons the record, scrutinizes the same, enquiries into the matter and comes to the conclusion that a fraud has been played, unless some very strong material is shown to rebut the aforesaid finding, it has to be taken as correct. The case in hand, is also one of cancellation of appointment, procured on the basis of fraud, by disclosing incorrect date of death of his father, in view of this detailed procedure of holding departmental enquiry was necessarily not required to be adhered to. Relevant paragraphs are 18, 19 and 21, they are being reproduced below:

"18. The appellant had claimed that the father, who was a permanent employee, went missing from 1.8.1981 and, therefore, he was presumed dead under Section 108 of the Indian Evidence Act and thus claimed benefit of appointment under the Dying-in-Harness Rules, 1974 whereas the record proved that subsequent to the date as claimed by the appellant the father of the appellant a temporary employee had himself represented before the authorities vide letter dated 10.6.1983 against his termination order dated 7.6.1983 and the learned Single Judge, having found the aforesaid document to be true and genuine, was quite justified in dismissing the writ petition. Secondly, in any case the order terminating the services of the father of the appellant dated 7.6.1983 became final and binding as the same has not been challenged before any authority or Court of Law. Thirdly and most importantly, we are of the view that once a High Court Judge himself summons the record and scrutinizes the same and enquires into the matter and comes to the conclusion that a fraud has been played, unless some very strong material is shown to rebut the aforesaid finding it has to be taken as correct.

19. In the present case, no such material has been brought on record to contradict the findings recorded by the learned Single Judge. The argument of the learned counsel for the appellants that principles of natural justice have been violated and that non holding of a detailed enquiry has caused irreparable injury to the appellant is also misconceived, inasmuch as, the learned Single Judge issuing writ of certiorari had called for the record and examined the same and enquired into the matter himself and the parties were given full opportunity to put forward their claim and counter claims and after due deliberation the learned Judge has recorded a finding of fraud being committed. The settled principles of law is that fraud vitiates everything. Once the factum of fraud having been found true by the learned Judge the appellant now cannot insist upon departmental enquiry being held especially in view of the fact that at the time of very inception into service if an order of appointment is procured by playing fraud such an appointee cannot be held to be a holder of a civil post in order to seek protection of Article 311 of the Constitution of India.

21. Similarly, in the present case, the appointment was granted to the appellant on compassionate ground in view of the fact that the father of the appellant had died in harness but since the record reveals otherwise, the very basis of granting appointment to the appellant is gone and as such, the appointment is void ab initio."

Sri Girjesh Tiwari, learned counsel for the petitioner has tried to submit that death register and other public documents, wherein post death benefits have been extended treating the date of death as 27.06.1992 and even in the family register and various other registers conclusive date of death has been entered as 27.06.1992 and number of villagers have also accepted same date of death and even complaint, at one stage of proceedings has accepted the same date of death.

There is no personal animosity with the District Magistrate, District Basic Education and the District Assistant Registrar, Cooperative Societies, and all these three authorities have got made investigation of the facts and thereafter have submitted report accepting the theory of death subsequent to 30.06.1992. The finding returned therein has been sought to be rebutted, but there is no reply of the fact that the brother of the petitioner had moved substitution application in the proceedings under Land Revenue Act supported by affidavit, wherein initially the date of death of his father was mentioned as 17.07.1992, but subsequently, the same has been changed to 27.06.1992. Moving of substitution application was the first step in the said direction. Manipulation and manoeuvring is writ apparent, as the document filed by the petitioner along with rejoinder affidavit has not been found on record. The petitioner is trying to contend before this Court that he cannot be held responsible for the acts of his brother. The fact of the matter is that substitution application had been moved on behalf of the petitioner's brother and there is overwriting in the date of death. Initially, the date of death had been entered as 17.07.1992 and subsequently, the same has been changed to 27.07.1992 and to the said overwriting and manipulation, no satisfactory reply has come forward.

Coupled with this, the two colleagues of late Nand Kishore Mishra, namely Khajanchi Prasad and Kukur Prasad, who had functioned with him, have made categorical statement of fact that Nand Kishore expired on 17.07.1992 and they have even participated in his funeral. There is no reason to disbelieve the statement of these two teachers. The petitioner has not at all been able to establish otherwise as to why these two teachers have deposed against him.

Much emphasis has been laid by the petitioner on the fact that at the point of time when Rs.1000/- had been disbursed in front of the name of Nand Kishore Mishra T.R. has been mentioned and the same is not at all conclusive proof of the transaction having been entered by him in his life time and even records are not available. In order to remove the doubts, the incumbent who had made the said entries and handed over the amount to late Nand Kishore Mishra, namely, Ramesh Pandey, had also been examined by the District Assistant Registrar, Cooperative Societies, and he made categorical statement of fact that Nand Kishore Mishra himself had appeared in person to collect the amount in question and he had handed over the amount and made entries. This is not disputed that late Nand Kishore Mishra had functioned at primary school Narangiya and the incumbent who has been deposing against the petitioner, Ramesh Pandey is also the resident of Naurangiya. In view of this, once this is the factual situation that inquiry has been got conducted by this Court itself and the materials have been collected and all the three agencies have proceeded to conclude the date of death of petitioner's father being subsequent to 30.06.1992, and said materials produced before the Court and which are available on record are unrebuttable. In view of this, it may be true that entire disciplinary proceedings are in utter violation of the principles of natural justice, but the issue involved is that the appointment of the petitioner itself was based on fraud and manipulations and once material has come on record showing fraud, then in case, this Court interferes with the impugned order, the same would amount to perpetuation of illegality. Various documents have been produced by petitioner, but to all these fats and circumstances narrated above, no satisfactory reply has been submitted, as to why all these persons are deposing against the petitioner. Qua the documents on which reliance has been placed by petitioner, entries have been allegedly made after 17.07.1992. Chances of manipulation can not be ruled out, in view of clinching evidence adduce before this Court. This Court will not proceed to exercise its authority of judicial review, in the peculiar facts and circumstances of the case. Fraud and justice, do not dwell together and Apex Court, in the case of District Collector Vs. M. Tripura Sundari Devi 1990 (3) SCC 655 has observed that if by practicing fraud and employment is obtained, the same cannot be permitted to be countenanced by a Court of law, as the employment secured by fraud renders it void. Even otherwise fraudulent acts are not encouraged by Courts. Petitioner can file Civil Suit, if he is so advised, and such finding would abide by the outcome of the suit.

Consequently, present writ petition is dismissed.

Order Date :- 21.11.2012

SRY