Biran Lal Gupta vs Dep. Gen. Mgr., Zonal Office, Bank ...
2014 Latest Caselaw 6758 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 58
 

 
Case :- WRIT - A No. - 40555 of 2009
 

 
Petitioner :- Biran Lal Gupta
 
Respondent :- Dep. Gen. Mgr., Zonal Office, Bank Of Baroda & Others
 
Counsel for Petitioner :- R.D. Tiwari,M.D. Singh Shekhar
 
Counsel for Respondent :- Vipin Sinha,A.R.Nair,Ashok Trivedi,S.C.,S.P.Mishra,V.B.Singh
 

 
Hon'ble Suneet Kumar,J.

The petitioner was appointed on a Class-IV post with the respondent Bank of Baroda, while seeking appointment, petitioner submitted school leaving certificate wherein it was mentioned that petitioner passed Class VIII from C.A.V Intermediate College, Allahabad, 30.10.1962 was recorded as date of birth. Petitioner was appointed on 6.9.1982 as a peon. On verification it was found that the school leaving certificate was a forged document. Petitioner, studied in Kesar Vidyapeeth Inter College, Allahabad, passed High School examination in IInd Division in 1967, date of birth recorded in the High School Certificate was 12.9.1949.

A charge sheet was issued on 7/10.12.1993 for wilful concealment of facts regarding educational qualification, knowingly submitting false documents pertaining to educational qualification and date of birth, in connection with employment, making false statement in the application pertaining to employment.

Inquiry was conducted by Deepak Khatri, Manager, submitted enquiry report on 21.3.1998, wherein the charges 1 to 5 was proved. Petitioner pleaded guilty and submitted unconditional apology, accordingly the Inquiry Officer proposed punishment, "Stoppage of four increments with cumulative effect which will have the effect of postponement of his future increments".

On 1.5.1998, Disciplinary Authority gave personal hearing to the petitioner, both the petitioner and the defence representative appeared before the Disciplinary Authority, admitted the allegations and requested to take a lenient view, stating that two different certificates were submitted to get employment but not to cheat the Bank. Taking a lenient view, the Disciplinary Authority imposed punishment of stoppage of four increments with cumulative effect. The petitioner thereafter did not prefer any appeal but filed writ petition no.64540 of 2008 after a lapse of 10 years, seeking a direction to decide the appeal dated 27.5.1998. Appeal was never received by any of the Branches, Regional Office or the appellate authority, however, the appellate authority considering the appeal on merits dismissed the appeal.

Thereafter, treating the date of birth of the petitioner as 12.9.1949, a letter dated 12.6.2009 was issued stating that the petitioner would retire on 30.9.2009.

Petitioner by means of this writ petition is assailing the order dated 5.5.1998 passed by the Disciplinary Authority, order dated 13.7.2009 passed by the Appellate Authority and the letter dated 12.6.2009 issued by the Asstt. General Manager.

The Court on 10.8.2009 vide interim order stayed the effect and operation of the retirement notice dated 12.6.2009. The order is extracted below:

"The submission is that the petitioner's date of birth is 30.10.1962 as is evident from his High School Certificate, copy whereof has been filed as Annexure-3 to the writ petition. By the impugned notice respondents are going to retire the petitioner by erroneously treating his date of birth as 12.9.1949. Upon perusal of the copy of the petitioner's High School certificate and the impugned notice of retirement, the submission made by the learned counsel for the petitioner primafacie appears to be correct.

In view of the above, it is provided that ill the next date of listing, the effect and operation of the retirement notice dated 12.6.2009 shall remain in abeyance."

Shri Ashok Trivedi, learned counsel appearing for the respondent Bank submits that the petitioner is a fraudulent person and has obtained appointment by playing fraud and misrepresentation, further by pleading false averments in the writ petition, the petitioner has obtained the interim order.

It is further, submitted that on the strength of the interim order, the Bank is continuing the petitioner in service after retirement and salary is being paid to the petitioner. The facts regarding date of birth is not in dispute as it was the subject matter of the disciplinary proceedings and it was admitted by the petitioner that documents forging the date of birth was filed to obtain appointment, whereas, the actual date of birth was 12.9.1949, and not 30.10.1962. However, again the petitioner has played fraud upon the Court by making false pleadings, raising the issue of date of birth which had attained finality. Thus the petitioner, has procured interim order by fraud and mis representation.

The petitioner was served a charge sheet on 7.12.1993 on the following charges:

"1. You have submitted a School Leaving Certificate vide Scholar Register No. 33793 of city A V Inter College, Allahabad stating therein that you are VIII Class passed & your date of birth is 30.10.62 while seeking employment in the Bank.

2. On the basis of the information submitted by you in your application form and certificate submitted, your were appointed Bank's service as subordinate staff member on 6.9.82.

3. Your aforesaid school leaving certificate has been found false/fake.

4. In fact you have studied in Kesar Vidyapeeth inter College, Allahabad from where you have appeared in High School examination conducted by U.P Board Allahabad and accordingly passed in the year 1965 in II Division with 45.6% of marks. As per aforesaid School's record your date of birth is 12.9.49.

Thus the petitioner was charged for wilfully concealing the facts regarding educational qualifications, knowingly submitted false documents pertaining to qualifications and date of birth in connection with employment in the bank, thus having knowingly made false statement in the application pertaining to employment. On conclusion of the inquiry, the disciplinary authority vide order dated 5.5.1998 taking a lenient view imposed lesser punishment and made the following observations:

"On 01.5.98, Mr.M.L.Gupta , defence representative & Biran Lal Gupta, Charge sheeted employee have appeared before the undersigned Disciplinary Authority. During the hearing, Defence Representative emphasized that the quantum of punishment on Mr.Biran Lal Gupta is too harsh in these hard days and in view of voluntary admission of charges a punishment of stoppage of 02 increments may be imposed upon him to meet natural justice."

In the writ petition, the petitioner has pleaded that the petitioner did not admit the charge before the Inquiry Officer and the date of birth of the petitioner is 30.10.1962 and not 12.9.1949, further it has been pleaded that on the pressure and coercion exercised by Inquiry Officer, Presenting officer and Defence Representative, petitioner had signed the order sheet no.25 under pressure. Thus, acceptance of the guilt was made by the petitioner under coercion, which according to the petitioner, was retracted by an application moved on the same date.

It is further pleaded that the proceedings initiated against the petitioner was on the pretext that one Beeran Lal Gupta applied for employment for the post of Cashier cum Clerk in Pratapgarh, Kshetreeya Grameen Bank, in 1980 whose date of birth was 12.12.1953, alleging that the petitioner is the same person whereas Beeran Lal Gupta is the son of Lallan Prasad Gupta and the petitioner's father name is Madan Mohan Gupta. Petitioner was VIIIth Pass in 1974 from C.A.V Intermediate College, Allahabad. The petitioner applied for appointment on 6.9.1982, petitioner appeared in the High School Examination in 1984 from Gajadhar Intermediate College,Lakshmanpur, Pratapgarh and the date of birth recorded is 30.10.1962.

The contention of the petitioner, is false and not borne out from the record. The order of punishment was passed on 5.5.1998 and was implemented immediately in May 1998. The petitioner did not file any appeal against the punishment order but approached this Court after lapse of 10 years.

The reason for not filing the appeal or approaching the\ court was that the petitioner had admitted the charges before the Inquiry Officer and the Disciplinary Authority. The Order Sheet No. 25 dated 21.3.1998, the petitioner stated "I ......voluntarily admit the charges as framed in the charge sheet". I am admitting these charges voluntarily and without any pressure and coercion. I am putting my signature to this effect, in my knowledge of having admitted the charges. I am also making a request that lenient view may kindly be taken."

The Order Sheet No. 25 was signed by the petitioner along with three officers namely Presenting Officer, Defence Officer, and Enquiry Officer.

It was never the case of the petitioner that his date of birth was 30.10.1962 and not 12.9.1949, rather petitioner made an attempt to avoid the issue by admitting the charge so as to get a lesser punishment, when one year was left for retirement in September 2009, petitioner reagitated the matter by filing writ petition no. 64540 of 2008.

The petitioner after lapse of 10 years, filed writ petition no.64540 of 2008 for deciding the appeal, the writ petition was disposed of by order dated 6.5.2009 directing the respondent Bank to decide the appeal.

The petitioner was given ample opportunity by the Inquiry Officer and as many as 25 hearings was held, thereafter, the petitioner admitted the charges.

It is specific case of the respondents that the petitioner had never filed the appeal rather the punishment order had attained finality as it was acted upon and after 10 years, the petitioner approached the Court.

As regards, the documents pertaining to Beeran Lal Gupta S/o Lallan Prasad Gupta are new facts which was never placed before the Inquiry Officer or the Disciplinary Authority. The petitioner approached this Court when letter dated 12.6.2009 was issued seeking to retire the petitioner with effect from 30.9.2009. The alleged appeal, dated 27.5.1998 filed against the punishment order, does not raise any of the issues as pleaded in the writ petition including that of Beeran Lal Gupta, S/o Lallan Prasad Gupta. Thus, on manufactured documents new facts is being raised.

The purpose of filing of the present writ petition, on false pleadings and mis representation, was to procure an order by misleading the Court, to which the petitioner has succeeded and on the strength of the interim order has continued beyond the age of superannuation i.e 30.9.2009.

"Fraud" means 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 element, 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. (Vide Vimla (Dr.) vs. Delhi Administration, AIR 1963 Sc 1572; and Indian Bank vs. Satyam Fibres (India) (P) Ltd., (1996) 5 SCC 550).

"Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes 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. It is also well settled that the misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to belief and act on falsehood. It is a fraud in law if a party makes representation, which he knows to be false, and injury ensures there from although the motive from which the representation proceeded may not have been bad. An act of fraud on Court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res-judicata. (Vide Ram Chandra Singh vs. Savitri Devi, (2003) 8 SCC 319).

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.

In Smt. Shrisht Dhawan Vs. Shaw Brothers, AIR 1992 SC 1555, it has been held as under:-

"Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct."

In United India Insurance Co. Ltd. Vs. Rajendra Singh & Ors., (2000) 3 SCC 581, the Apex Court observed that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its temper over all these centuries.

In Union of India & Ors. Vs. M. Bhaskaran, 1995 Suppl. (4) SCC 100, the Apex Court, after placing reliance upon and approving its earlier judgment in District Collector & Chairman, Vizianagaram Social Welfare Residential School Society. Vizianagaram & Anr. Vs. M. Tripura Sundari Devi, (1990) 3 SCC 655, observed as under:-

"If by committing fraud any employment is obtained, the same cannot be permitted to be countenanced by a Court of Law as the employment secured by fraud renders it voidable at the option of the employer"

Supreme Court in the case of Oswal Fats and Oils Limited vs. Additional Commissioner (Administrative), Bareilly Division (2010) 4 SCC 728 observed as follows:-

"20. It is settled law that a person who approaches the court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny relief to such person."

The observations in A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam (2012) 6 SCC 430 are also apposite holding:-

"43.1. It is the bounden duty of the court to uphold the truth and do justice.

43.2. Every litigant is expected to state truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts.

43.3. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the court should be truthful.

43.4.Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrongdoer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice.

43.5.It is the bounden obligation of the court to neutralise any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process."

The presentation of a distorted official document and thereby obtaining advantage from the Court is a contemptuous act as held in (1995) 1 SCC 421 (Chandra Shashi v. Anil Kumar Verma). Awarding imprisonment, it was held :

"14. The legal position thus is that if the publication be with intent to deceive the court or one made with an intention to defraud, the same would be contempt, as it would interfere with administration of justice. It would, in any case, tend to interfere with the same. This would definitely be so if a fabricated document is filed with the aforesaid mens rea. In the case at hand the fabricated document was apparently to deceive the court; the intention to defraud is writ large. Anil Kumar is, therefore, guilty of contempt."

Supreme Court in the case of V. Chandrashekaran and another vs. Administrative Officer and others [(2012) 12 SCC 133 observed that a petition or affidavit containing misleading or inaccurate statement amounts to abuse of process of Court, a litigant cannot take inconsistent positions. Supreme Court imposed Rs.25 lacs as cost. Paras 45, 46 and 47 are as follows:-

"45. The judicial process cannot become an instrument of oppression or abuse, or a means in the process of the court to subvert justice, for the reason that the court exercises its jurisdiction, only in furtherance of justice. The interests of justice and public interest coalesce, and therefore, they are very often one and the same. A petition or an affidavit containing a misleading and/or an inaccurate statement, only to achieve an ulterior purpose, amounts to an abuse of process of the court.

In Dalip Singh v. State of U.P. & Ors., (2010) 2 SCC 114, this Court noticed an altogether new creed of litigants, that is, dishonest litigants and went on to strongly deprecate their conduct by observing that, the truth constitutes an integral part of the justice delivery system. The quest for personal gain has become so intense that those involved in litigation do not hesitate to seek shelter of falsehood, misrepresentation and suppression of facts in the course of court proceedings. A litigant who attempts to pollute the stream of justice, or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.

47. The truth should be the guiding star in the entire judicial process. Every trial is a voyage of discovery in which truth is the quest. An action at law is not a game of chess, therefore, a litigant cannot prevaricate and take inconsistent positions. It is one of those fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings. (Vide: Ritesh Tewari & Anr. v. State of Uttar Pradesh & Ors., (2010) 10 SCC 677; and Amar Singh v. Union of India, (2011) 7 SCC 69).

Applying the law in the facts and circumstances of the case, the petitioner has played fraud while obtaining employment and during the prolonged disciplinary proceedings which commenced in 1993 and concluded in 1998, petitioner appeared and pleaded guilty, and admitted that the petitioner had filed forged documents regarding his date of birth, in order to obtain employment. Thus the date of birth of the petitioner was treated as 12.9.1949 instead of 30.10.1962. The petitioner never filed any appeal, the order punishment of withholding four increments was carried out. The petitioner never assailed order and it is only after 10 years in 2008, the petitioner approached this Court on the pretext of getting the pending appeal decided, the petitioner was aware that the petitioner would retire in the following year in 2009. After rejection of the appeal, petitioner preferred the present writ petition making false averments and misleading facts, setting up a new case, thus, procuring interim order, and on the strength of the interim order, the petitioner has continued in service, though the petitioner superannuated on 30.9.2009. It was specifically pleaded by the petitioner that the authorities are wrongly retiring the petitioner treating the date of birth as 12.9.1949 instead of 30.10.1962, whereas the issue of date of birth attained finality in 1998 itself, when the punishment order was carried out.

In the facts and circumstances of the case, the writ petition fails and is dismissed. The interim order is vacated. It will be open for the respondent bank to recover the salary paid to the petitioner with effect from 1.10.2009 from the retiral dues of the petitioner.

Petition is dismissed with cost of Rs.1,00,000/- payable to the respondent Bank, for misleading the Court by playing fraud and misrepresentation thus, procuring interim order which otherwise, would not have been possible had correct facts been stated by the petitioner.

Order Date :- 22.9.2014

IB