Manik Chand Lal Srivastava ... vs State Of U.P. Through Secy. ...
2013 Latest Caselaw 7420 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 18
 

 
Case :- SERVICE SINGLE No. - 6781 of 2011
 

 
Petitioner :- Manik Chand Lal Srivastava [Hearing List]
 
Respondent :- State Of U.P. Through Secy. Agriculture Lko. & Ors.
 
Counsel for Petitioner :- J. P. Maurya, A. K. Kushwaha
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Anil Kumar,J.

Heard Shri J. P. Maurya, learned counsel for the petitioner, Shri Pankaj Patel, learned Addl. Chief Standing Counsel and perused the record as well as original record produced by learned Standing Counsel.

By means of the present writ petition, the petitioner has challenged the impugned order dated 30.07.2011 (Annexure No.1) passed by opposite party no.3/Assistant Agriculture Engineer (Tractor) State Base Tractor, Workshop, Lucknow by which the petitioner has been retired from service on 31.07.2011 on the ground that he has attained the age of superannuation.

The factual controversy involved in the present case are that on 18.11.1980, the petitioner was appointed on the post of Peon (Chaukidar) and posted under Assistant Agriculture Engineer, Krishi Sewa Kendra Mirzapur. As per the case of the petitioner, in his service book, his date of birth is recorded as 17.07.1957 on the declaration given by him.

On 18.11.1980, petitioner's service was confirmed in the pay-scale of Rs.2550-3200. On 10.08.1994, a tentative seniority list has been issued by the concerned authority of the department at Jaunpur in respect of the persons, who are working on the post of Class-IV category. In the said seniority list, the name of the petitioner finds place at Sl. No.15 and his date of birth has been mentioned as 17.07.1957, educational qualification as Class-V and at that he is working at Gazipur, Workshop on 07.02.1997, transferred to the post of Haimer Man and subsequently, promoted to the post of Technical Assistant (Tractor). While he was working in the said capacity, elected as Secretary of the Union Employees and petitioner has pressed the demand of other worker. So the respondent no.3 has become personally and prejudice bias to him, a show cause notice dated 12.06.2009 issued to the petitioner to which he submitted his reply. Thereafter, the order of termination dated 21.07.2009 has been passed by opposite party no.3/Assistant Agricultural Engineer (Tractor) State Base Tractor, Workshop, Lucknow.

Aggrieved by the said fact, the petitioner filed a statutory appeal before the opposite party no.2/Director, Agricultural Directorate, Krishi Bhawan, U.P., Lucknow, allowed by order dated 07.01.2010.

It is submitted on behalf of the petitioner that one of the charges on which the impugned order of termination dated 21.07.2009 has been passed has to the effect that the petitioner has made manipulation in service record in respect of date of birth as 17.07.1957 in stead of 17.07.1951. The Appellate Authority while setting the aside the order of termination and directed the punishing authority to hold a de novo enquiry has given a following finding :-

"आरोपी द्वारा जन्म तिथि में अपर लेखन के सम्बन्ध में हस्तलेख विशेषज्ञ द्वारा जाँच कराये जाने के अनुरोध के क्रम में जांच अधिकारी द्वारा हस्तलेख विशेषज्ञ से जाँच करायी जानी चाहिए थी कि वास्तव में यह अपर लेखन किस व्यक्ति द्वारा किया गया था लेकिन हस्तलेख विशेषज्ञ से बिना अपर लेखन की जाँच कराये ही आरोप सिद्ध कर दिया गया जो उचित नहीं है ।

उपरोक्त तथ्यो के आधार पर यह पाया जाता है कि श्री श्रीवास्तव के विरुद्ध सम्पादित की गयी विभागीय अनुशासनिक कार्यवाही में जहाँ एक ओर नैसर्गिक न्याय के सिद्धांत का पालन न करते हुए श्री श्रीवास्तव द्वारा किए गए अनुरोध के अनुसार सम्बंधित अधिकारियो/कर्मचारियो से परीक्षण नहीं किया गया वही दूसरी ओर जांच अधिकारी द्वारा ज़िला बेसिक शिक्षा अधिकारी से सत्यता की जांच पुनः नहीं की गयी और न ही अपर लेखन सम्बन्धी शब्दो का हस्तलेख विशेषज्ञ परीक्षण कराया गया । इस प्रकार श्री श्रीवास्तव के विरुद्ध संचालित की गयी विभागीय अनुशासनिक कार्यवाही नियमानुसार नहीं पायी जाती है ।"

Accordingly it has been submitted by learned counsel for the petitioner that without holding a de nove enquiry as per direction issued by the Appellate Authority, Punishing Authority/opposite party no.3/ Assistant Agricultural Engineer (Tractor) State Base Tractor, Workshop, Lucknow passed the impugned order dated 30.07.2011 (Annexure No.1) retiring the petitioner from service w.e.f. 31.07.2011 on the ground that he has attained the age of superannuation as per the date of birth recorded in the service book i.e. 17.07.1951.

Learned counsel for the petitioner while assailing the impugned order submits that the impugned order is illegal and arbitrary in nature as the same has been passed without providing any opportunity of hearing to the petitioner.

He further submits that once the appellate authority being a higher authority has set aside the impugned order of termination and remanded back the matter to the punishing authority to decide a fresh, then the said authority is under mandatory duty to hold a fresh enquiry and passed an appropriate order as per Rules keeping the said facts as well as the fact that one of the charges on the basis of which the termination order has been passed was to the effect that the petitioner has made manipulation in the service record in respect of his date of birth as 17.07.1957 instead of 17.07.1951, so without giving any opportunity to the petitioner to put his defence on the point in issue, the impugned order has been passed as such the same is in violation of principles of natural justice, liable to be set aside.

Shri Pankaj Patel, learned Additional Chief Standing Counsel submits that the order of termination dated 21.07.2009 has been set aside by the appellate authority/opposite party no.2 and the matter was remanded to the punishing authority to hold a de novo enquiry. In pursuance of the order dated 7.01.2010 passed by opposite party no.2, a revised charge sheet dated 08.04.2010 has been issued by the competent authority served to the petitioner along with relevant document. After receiving the same, petitioner submitted his reply dated 10.05.2010 retiring his earlier stand, taken in the matter in question.

Thereafter, supplementary charge sheet has been served to the petitioner to which he has submitted his reply and Enquiry Officer was appointed to conduct the enquiry proceedings. The Enquiry Officer issued a letter on 10.06.2010, fixing time and place to hold an enquiry. After receiving the said letter, the petitioner sent a letter dated 18.06.2010 that he is on earned leave due to marriage of his son, so the date of enquiry proceedings may be adjourned. The said request of the petitioner has been accepted, another letter has been sent by the Enquiry Officer fixing date, time and place to hold a enquiry proceeding. After receiving the same, the petitioner submitted a letter dated 21.06.2010 requesting one month for medical leave. However, the petitioner did not turn up to participate in the enquiry proceeding, so as per the provisions as provided under Rule 7 of the U.P. Government Servant (Discipline and Appeal) Rules 1999, the Enquiry Officer conducted the enquiry proceeding on the basis of the material and evidence on record and submitted enquiry report to the punishing authority mentioning that the charge against the petitioner for manipulation of the date of birth in service record as 17.07.1957 in stead of 17.07.1951 established.

Thereafter no steps could be taken in the matter by the punishing authority as the record of the petitioner has been forwarded to the Higher authority for finalization of pension etc. as he has to retire from his age on 31.07.2011 thus, once he has attained the age of superannuation on 31.07.2011, the impugned order has been passed by opposite party no.3 which is perfectly valid.

Learned counsel for the petitioner further submits that on the basis of the seniority issued in the year 1994, and the date of birth is mentioned therein the petitioner cannot derive any benefit as he has been transferred and at that relevant point of time, service record as well as seniority has been given to him to submit at the place where he has been transferred taking the advantage of the said facts he had made manipulation in the said document which is evident from the perusal of the record.

Another argument advanced on behalf of learned Standing Counsel in support of the impugned order is that the petitioner has filed a supplementary affidavit along with C.M.A.No.18197 of 2013 annexing his driving license in which his date of birth is mentioned as 17.7.1957. Later on, the said driving license has been verified from the authority concerned who had issued the same and it was found that the same is a fake document. In this regard, a report dated 19.03.2013 submitted by ARTO, Hardoi, license is a fake license, never issued from his department.

Learned Standing Counsel submits that School Leaving Certificate and T.C. Submitted by the petitioner during the course of enquiry proceeding in order to establish that the date of birth of the petitioner is 17.07.1957 is also a fake document as per the verification done from the institution which has issued the said documents. So, the petitioner is not entitled for any relief in the matter, writ petition is liable to be dismissed.

After hearing learned counsel for parties, the sole question to be decided in the present case whether the correct date of birth of the petitioner is 17.07.1951 or 17.07.1957 ?

As per admitted facts of the present case, by order dated 21.07.2009 passed by opposite party no.3, the services of the petitioner has been terminated was set aside by order dated 07.01.2010 passed by the appellate authority and a direction has been given to hold a de novo enquiry.

Thereafter, a fresh charge sheet as well as supplementary charge sheet issued to the petitioner to which he submitted his reply to the Enquiry Officer who for conducting the enquiry fixed date, time and place and in this regard, the necessary information also sent to the petitioner, but he did not participate in the enquiry proceeding to prove his version in respect of his date of birth. So the Enquiry Officer on the basis of the material on record completed the enquiry proceeding and submitted the enquiry report to the punishing authority. However, no action has been taken by the punishing authority on the basis of the enquiry report as the service record has been sent to the competent authority for finalization of pension etc because he is to retire very soon. Subsequently, the impugned order dated 30.07.2011 has been passed by opposite party no.3 by which the petitioner has been retired from service w.e.f. 31.07.2011

In addition to the said facts, from the perusal of the original record produced by learned Stanidng Counsel cleary appears that there is manipulation in the date of birth as mentioned in the original seniority list prepared in the year 1994 as well as in the service record of the petitioner. Further, taking into consideration the said facts as well as submission made by learned counsel for the petitioner that in the year 1994 when the petitioner has been transferred, seniority list has been given to him to submit the authority, at that stage, manipulation has been done in the service record has got no force because in the manipulation the said documents in respect of date of birth of the petitioner he is only beneficiary.

In the present case, driving license annexed by the petitioner in the supplementary affidavit has been verified from the authority concerned/ARTO, Hadoi who had issued the same and it was found that the driving license is a fake document.

Further, from the perusal of the original record, it is also established that Joint Director, Vidhi Vighyan Pragyogshala, U.P. Mahanagar, Lucknow has submitted a report that there is manipulation in the service record in respect of date of birth of the petitioner.

Appointment fraudulently obtained does not create any lawful right. On detection of fraud the appointment is liable to be fortified. In Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav (2003) 3 SCC 437, the respondent was appointed as a Physical Education Teacher in Kendirya Vidyalaya suppressing material information about his antecedent. On disclosure of the falsehood his services was terminated held to be valid by Hon'ble the Apex Court.

In R. Viswanath Pillai v State of Kerala 2004 SCC (L&S) 150, a three judges Bench of the Supreme Court was examining if the constitutional protection under Article 311 could be invoked by a person who obtained public service in a fraudulent manner. In that case the appellant obtained the appointment on the basis of a false Caste certificate that he belonged to a Scheduled Caste Community. On finding out, his services were terminated. The Supreme Court observed (para 15):-

"When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community then the very basis of his appointment was taken away. His appointment was no appointment in the eye of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of a false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which would have gone to a member of the Scheduled Caste. In view of the finding recorded by the Scrunity committee and upheld upto this Court, he has disqualified himself to hold the post. The appointment was void from its inception. It cannot be said that the said voild appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India...."

In Smith V. East Elloe, Rural Distt. Council (1956) L All ER 855 the House of Lord held that the effect of fraud would normally be to vitiate any act or order.

In another case, Lazarus Estates Ltd. V. Beasley, (1956) I ALL ER 341 Denning L. J. said :

"No judgment of a court, no order of a Minister, can't be allowed to stand if it has been obtained by fraud. Fraud unravels everything."

In the case of Indian Bank Vs. Satyam Fibres (INDIA) Private Limited, (1996) 5 Supreme Court Cases, 550 Hon'ble Supreme Court after taking into consideration above two judicial pronouncement had held as under :

"The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud on court. In the case of fraud on a party to the suit or proceedings, the court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the court's business.

Since fraud affects the solemnity, regularity and orderliness of the proceeding of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that court."

Thus, as per the facts stated above, admittedly after the matter has been remanded back by the appellate authority to the punishing authority to hold a de novo enquiry, a charge sheet as well as supplementary charge sheet have been issued to the petitioner to which he submitted his reply, thereafter, did not participate in the enquiry proceeding to prove and establish that he is not guilty of the charges in respect of manipulation of date of birth in the service record and the Enquiry Officer on the basis of material on record had given a finding in the enquiry report that charge in respect of the manipulation of date of birth in the service record of the petitioner has been duly proved. In the present writ petition, he has filed a supplementary affidavit annexing a forged document i.e. driving licence in order to establish that date of birth is 17.7.1957 and not 17.7.1951.

Hence, argument advanced by learned counsel for the petitioner that prior to passing of the impugned order dated 30.07.2011 (Annexure No.1) by opposite party no.3/Assistant Agriculture Engineer (Tractor) State Base Tractor, Workshop, Lucknow, no opportunity has been given to the petitioner and the said authority has not been passed any order after submission of enquiry report submitted by the Enquiry Officer, has got no force and the petitioner cannot derive any benefit from the said argument as in the present case, it is clearly established that in the present case fraud has been played by which manipulation has been done in respect of date of birth of the petitioner in the service record as well as seniority list and the he is the only beneficiary. So, he is not entitled for any relief under Article 226 of the Constitution of India.

In the result, the writ petition lacks merit and is dismissed.

No order as to costs.

Order Date :- 12.12.2013

Mahesh