Narendra Kumar Tripathi vs State Of U P And 3 Others
2021 Latest Caselaw 1147 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- WRIT - A No. - 15217 of 2020
 

 
Petitioner :- Narendra Kumar Tripathi
 
Respondent :- State Of U P And 3 Others
 
Counsel for Petitioner :- Krishna Datta Tiwari
 
Counsel for Respondent :- C.S.C.,Arun Kumar
 

 
Hon'ble Yashwant Varma, J.

Heard learned counsel for the petitioner and Sri Arun Kumar, learned counsel who appears for the respondents.

The petitioner is aggrieved by the orders of 3 July 2020 and 7 October 2020 passed by the respondents. In terms of the first order, it has been found upon due verification that the B.A. marksheet on the basis of which the petitioner obtained employment was forged. Consequent to that order, the services of the petitioner has been brought to an end. By the second order the respondents have also passed directions for recovery of all emoluments which have been paid to the petitioner. It becomes pertinent to note that the finding of the respondents that the petitioner obtained employment on the basis of a forged mark sheet is neither disputed nor challenged by the petitioner before this Court with learned counsel for the petitioner candidly stating that the petitioner had no defense to proffer.

Learned counsel for the petitioner placing reliance on the decision rendered by a learned Judge in Abhiram Vs. State of U.P. And 3 Others1 and the judgment of the Division Bench in Smt. Parmi Maurya Vs. State of U.P. And 2 Ors2 contended that it was incumbent upon the respondents to have conducted a formal disciplinary enquiry before dismissing the petitioner from service and in having failed to do so, the impugned orders are liable to be set aside on that score alone. It was further submitted that the decision to recover all emoluments paid during the period while the petitioner was in service causes grave injustice and hardship.

Before proceeding to deal with the submissions addressed by learned counsel, it becomes pertinent to bear in mind that the petitioner does not dispute that the testimonial on the basis of which appointment was obtained is forged. This is, therefore, not a case where an irregularity was committed by the respondents while offering appointment to the petitioner. It is also not a case where the appointment suffers from what may be described as a procedural irregularity or where the appointment suffers from a flaw which is of a non-fundamental character. These have come to be described in legal parlance as "irregular appointments" in light of the declaration of the law on the subject by the Constitution Bench in Uma Devi [3]3. On the other hand, appointments, made in violation of a statutory rule or executive instruction or even where it is alleged to have been made in violation of a procedure mandated by law have consistently been held to be illegal and void ab initio. They thus fall in the class of "illegal appointments". This Court is of the view that while appointments in public service obtained on the basis of fraud or fabrication of testimonials are also liable to be classified as falling within the genre of an "illegal appointment", for the purposes of the present it would be apposite to confine this decision to cases where the appointment is said to have been obtained on the basis of fraud and fabrication of records. The solitary question which thus merits consideration is whether a decision of the employer to recover salary and emoluments paid during the period when service was rendered by an employee is liable to be upheld in a case where the original appointment was obtained on the basis of fraud.

At the outset it becomes pertinent to highlight that an appointment tainted by fraud or fabrication is one which has been obtained by a positive act of misrepresentation, forgery or fabrication on the part of one who seeks or applies for appointment. What needs to be emphasised and borne in mind is where the entry into service is based upon the incumbent knowingly and consciously practicing fraud, such instances would necessarily merit consideration on a distinct set of principles. Bearing in mind the aforesaid, the Court proceeds to delineate the salient principles which would apply in such a situation.

Firstly, the determination of service of a person who is found to have entered government service on the strength of forged certificates, marksheets or degrees is not an action resting on an act of "misconduct" committed in the course of employment. The cessation of service occurs solely upon it being discovered and found that the person had fraudulently obtained employment under the State. The very entry into service is thus rendered void and non-est. It leads to the irresistible conclusion that the employee was never entitled to be in service. If the aforesaid be duly established, then the length of service rendered or the many years spent on that post are factors which not only pale into insignificance but are rendered wholly irrelevant.

Secondly, it must necessarily be recognised that an allegation of fraud or fabrication of certificates and testimonials is a serious charge which must be lawfully established. Since any action taken on the back of such an allegation would necessarily visit the person with serious civil consequences, it must be preceded by an opportunity of hearing being afforded to the individual enabling him to establish that the allegation of fraud or fabrication is incorrect. The only clarification which needs to be entered is that since and as already held, the action is not based on an act of "misconduct", while the rules relating to disciplinary proceedings would not apply, the rudimentary principles of natural justice would have to be adhered to and followed.

Lastly it may be noted that a challenge to an order of recovery of salaries paid for services rendered in such cases is essentially an appeal for sympathetic consideration and a prayer for invocation of principles of equity. As was urged here, the challenge to the direction for recovery of salary was addressed on the basis of the petitioner having rendered service for many years and thus the impugned action liable to be struck down on equitable considerations. This Court having conferred thoughtful consideration on the submission addressed on this score, fails to find either merit in the submission or justification for upholding that plea for the following reasons.

Undisputedly the petitioner forged his testimonials in order to obtain employment under the State. That was a conscious and deliberate act on the part of the petitioner in order to illegally and undeservedly enter into government service. That employment was acquired by practicing fraud and the petitioner fabricating testimonials. Fraud, as has been often said, unravels the most solemn of acts. The appointment secured was non-est and void ab initio. In fact the factum of that appointment cannot ever be countenanced in law.

Bearing in mind the fact that the appointment was and is liable to be viewed as a nullity from its very inception, it would be wholly illegal to permit the petitioner to retain the benefits secured from such an appointment. The petitioner has not only sullied a recruitment process initiated for the purposes of offering positions in public service, denied a rightful claim of another to secure employment under the State, but also illegally drawn, used and retained moneys from public funds. This Court fails to perceive any justification in either vindicating or absolving the petitioner of this act nor does it discern any factor which may persuade it to ratify the wrongdoing committed by the petitioner. In fact permitting the petitioner to retain the benefits illegally obtained would be wrong in law. In situations like the present, the Court cannot be distracted by compassion or sympathy lest it be misunderstood that such acts can be condoned. This since the action impugned here is also designed to serve as a powerful message to deter and dissuade those who may in the future be tempted to tread a similar course. Lastly it must be remembered that equity is also intended to foster honesty and fairness in action. Unconscionable conduct clearly disentitles and prohibits an individual from invoking equity.

Having enumerated the fundamental considerations which must be borne in mind in cases like the present, it would be pertinent to notice the legal position as explained both by this Court as well as the Supreme Court on this question.

In a recent decision rendered by the Supreme Court in Punjab Urban Planning & Development Authority v. Karamjit Singh4 it was held:-

"5.5. It is well settled that an order of regularisation obtained by misrepresenting facts, or by playing a fraud upon the competent authority, cannot be sustained in the eye of the law. [Devendra Kumar v. State of Uttaranchal, (2013) 9 SCC 363 : (2014) 1 SCC (L&S) 270] In Rajasthan Tourism Development Corpn. Ltd. v. Intejam Ali Zafri [Rajasthan Tourism Development Corpn. Ltd. v. Intejam Ali Zafri, (2006) 6 SCC 275 : 2006 SCC (L&S) 1314] , it was held that if the initial appointment itself is void, then the provisions of the Industrial Disputes Act, 1947 are not applicable for terminating the services of such workman. In a similar case, this Court in Bank of India v. Avinash D. Mandivikar [Bank of India v. Avinash D. Mandivikar, (2005) 7 SCC 690 : 2005 SCC (L&S) 1011] , held that since the respondent had obtained his appointment by playing fraud, he could not be allowed to get the benefits thereof.

6. In the present case, the Single Judge had held that "rightly or wrongly", the respondent had obtained regularisation, and was therefore entitled to a disciplinary enquiry. The Division Bench [Punjab Urban Planning and Development Authority v. Karamjit Singh, 2018 SCC OnLine P&H 2677] affirmed the judgment of the Single Judge [Karamjit Singh v. Punjab Urban Planning & Development Authority, 2018 SCC OnLine P&H 4694] .

6.1. The High Court however failed to appreciate that the decision in ECIL [ECIL v. B. Karunakar, (1993) 4 SCC 727 : 1993 SCC (L&S) 1184] is applicable to "employees" of government departments. Since the very appointment of the respondent on regular basis was illegal, he could not be treated as an "employee" of the appellant Authority. In Rupa Rani Rakshit v. Jharkhand Gramin Bank [Rupa Rani Rakshit v. Jharkhand Gramin Bank, (2010) 1 SCC 345 : (2010) 1 SCC (L&S) 1094] , this Court held that service rendered in pursuance of an illegal appointment or promotion cannot be equated to service rendered in pursuance of a valid and lawful appointment or promotion.

6.2. The illegality of such an appointment goes to the root of the respondent's absorption as a regular employee. The respondent could not be considered to be an "employee", and would not be entitled to any benefits under the Regulations applicable to employees of the appellant Authority. Therefore, the High Court erroneously placed reliance on the decision in ECIL [ECIL v. B. Karunakar, (1993) 4 SCC 727 : 1993 SCC (L&S) 1184] , which would not be applicable to the facts of the present case."

Again in State of Bihar Vs. Kirti Narayan Prasad 5 the Supreme Court observed:-

16. In the instant cases, the writ petitioners have filed the petitions before the High Court with a specific prayer to regularise their service and to set aside the order of termination of their services. They have also challenged the report submitted by the State Committee. The real controversy is whether the writ petitioners were legally and validly appointed. The finding of the State Committee is that many writ petitioners had secured appointment by producing fake or forged appointment letter or had been inducted in government service surreptitiously by the Civil Surgeon-cum-Chief Medical Officer concerned by issuing a posting order. The writ petitioners are the beneficiaries of illegal orders made by the Civil Surgeon-cum-Chief Medical Officer. They were given notice to establish the genuineness of their appointment and to show-cause. None of them could establish the genuineness or legality of their appointment before the State Committee. The State Committee on appreciation of the materials on record has opined that their appointment was illegal and void ab initio. We do not find any ground to disagree with the finding of the State Committee. In the circumstances, the question of regularisation of their services by invoking para 53 of the judgment in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] does not arise. Since the appointment of the petitioners is ab initio void, they cannot be said to be the civil servants of the State. Therefore, holding disciplinary proceedings envisaged by Article 311 of the Constitution or under any other disciplinary rules shall not arise.

In Raj Kumar Saxena Vs. Basic Shiksha Parishad6 a learned Judge of the Court noticed the legal position in the following terms:-

24. The three Judge Bench in R. Vishwanatha Pillai v. State of Kerala (Vishwanatha Pillai case) and Union of India v. Dattatray (Dattatray case) laid down the principle of law that where a benefit is secured by an individual, such as, an appointment to a post on the basis of fraud and misrepresentation, would result in the appointment being rendered void or non est.

25. In Vishwanatha Pillai, the appellant therein came to be selected Deputy Superintendent of Police on a forged caste certificate, consequently, upon cancellation of the caste certificate by the Scrutiny Committee, services of the appellant came to be terminated. The Central Administrative Tribunal directed that the appellant should not have been terminated without following the procedure under Article 311 of the Constitution. The High Court reversed the decision and the appellant was dismissed from service. Before the Supreme Court, the appellant, inter alia, sought protection of Article 311 of the Constitution. Rejecting the submission, the Supreme Court held: (para 15)

"15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. 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 eyes 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. ............ The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Caste. In view of the finding recorded by the Scrutiny Committee and upheld upto this Court he has disqualified himself to hold the post. Appointment was void from its inception. It cannot be said that the said void 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, As appellant had obtained the appointment by playing a fraud he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practicing fraud or deceit such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all."

26. The Bench of three Judges also rejected the submission that since the appellant had rendered 27 years of service, the order of dismissal should be substituted with order of compulsory retirement to protect his pensionary benefits. The Court observed: (Para 19)

"19.....The rights to salary, pension and other service benefits are entirely statutory in nature in public service. Appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eyes of law. The right to salary or pension after retirement flow from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for Scheduled Caste thus depriving the genuine..................... A person who, seeks equity must come with clean hands. He. who comes to the Court with false claims, cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practising fraud."

27. In Bank of India v. Avinash D. Mandivikar, the Supreme Court held that no case was made out for protecting the services of a bank employee who had obtained employment on the basis of a false claim. Further, the employee having perpetrated a fraud, a claim for protection will not be legally sustainable and a person who had obtained employment by illegitimate means could not continue to enjoy the fruits of the appointment and that he does not even have a shadow of a right even to be considered for appointment. Reliance was placed upon the earlier decision in Vishwanatha Pillai in coming to its conclusion.

28. The position in law was reaffirmed in a subsequent decision of a Bench of three Judges in Dattatray10 case. The respondent was appointed Assistant Professor of Psychiatry in a government hospital on the strength of a claim to belong to a Scheduled Tribe, which was subsequently found to be false by the Scrutiny Committee. The High Court upheld the invalidation of the claim but held that the respondent would not be entitled to any benefit as a member of the Scheduled Tribe from the date of its decision. In consequence, the services of the respondent was directed not to be disturbed. The Supreme Court set aside the judgment of the High Court directing the continuance of the first respondent in service and observed: (para 5)

"5...When a person secures employment by making a false claim regarding caste/tribe, he deprives a legitimate candidate belonging to scheduled caste/tribe, of employment. In such a situation, the proper course is to cancel the employment obtained on the basis of the false certificate so that the post may be filled up by a candidate who is entitled to the benefit of reservation."

29. A three Judge Bench in a recent judgment rendered in Chairman and Managing Director Food Corporation of India v. Jagdish Balaram Bahira on considering the precedents on the subject held that appointment/admission obtained on the basis of fraud and misrepresentation of caste or otherwise, is not entitled to such an appointment/admission being rendered void or non est. The exception to the above doctrine was in those cases where the Supreme Court exercises its powers under Article 142 of the Constitution to render complete justice. In other words a person who has played fraud and misrepresentation is not entitled to continue in service irrespective of the length of service rendered by him. In case he is permitted to continue it would perpetrate the fraud and misrepresentation. The principles enshrined under Article 311 of the Constitution or service rules pertaining to dismissal/removal upon recording a finding of misconduct would also not apply, for the reason that the appointment is non est and void ab initio and has no grounds to sustain.

30. In the facts of the case at hand the basis of the appointment is the unregistered adoption deed which has been held to be invalid in view of Section 11(i) of Act, 1956. The foundation of the appointment goes being non est in the eye of law, termination of service is the consequence. Petitioner has not been imposed major penalty of termination upon recording a finding of misconduct committed during the course of his employment. The Rules, 1973 in the circumstances has no application. In the admitted facts no real prejudice has been caused to the petitioner and no other conclusion is possible in respect of the deed recording adoption in such situation no fault can be found with the impugned order. (Refer: K.L. Tripathi v. State Bank of India; State Bank of Patiyala v. S.K. Sharma, Biecco Lawrie Limited v. State of West Benga).

Similarly another learned Judge of the Court struck a consistent note with the legal position noticed above in Narendra Kumar Gond Vs. State of U.P.7 observing:-

"10. The contention of the petitioner that disciplinary proceedings should have been held in the matter and as this has not been done the impugned order is vitiated, is not tenable in law for the reason the factum of employment of petitioner's mother at the time of his father's death and the petitioner's compassionate appointment is undisputed and secondly, in view of the provisions contained in the appointment letter itself and even otherwise in the facts of the case it is the appointment which has been cancelled for the reasons disclosed hereinabove, rightly so, after giving due opportunity of hearing to the petitioner which cannot be faulted and also as it is not a case of misconduct having been committed during the course of service but it is a case of cancellation of his appointment on the ground that the same was obtained by misrepresentation/concealment and incorrect facts...."

It is thus manifest that it has been the consistent view of our Courts that where the appointment is alleged to have been secured by fraud or misrepresentation, the normal rules governing the conduct of disciplinary proceedings were not liable to be followed. This since the termination in such a situation is not on account of a misconduct committed during the course of employment. All that is required in such a situation is to place the employee on notice and comply with the fundamental principles of natural justice.

Parmi Maurya was a case where the charge of fabrication was seriously disputed and challenged by the employee who had also not been provided access to the material on the basis of which that charge was sought to be established. It becomes pertinent to recollect that contrary to the above, the petitioner here does not dispute the charge of fabrication. The decision is thus clearly distinguishable and does not come to the aid of the petitioner. The decision in Abhiram merely follows the aforesaid decision without noticing the other decisions of this Court as well as the Supreme Court which have consistently held to the contrary and in unequivocal terms laid down the law to be that a regular departmental enquiry is not liable to be drawn where the initial appointment has been obtained by practise of fraud and is thus void and non-est. This of course subject to the caveat and as held herein above, that the rudimentary principles of natural justice must necessarily be adhere to and followed.

Lastly the Court draws sustenance for its conclusion of the employer being justified to effect recoveries upon it being found that the initial appointment had been obtained by fraud or fabrication from the judgment of the Court in Vinay Kumar Singh Vs. State of U.P.8

28. So far as contention of learned counsel for petitioner that petitioner has worked during the period 20.7.2004 to May, 2007 and, therefore, he is entitled to get salary for the said period and no recovery of paid amount shall be made is concerned, it is to be noted mat there is allegation that appointment of petitioner was itself based on fraud and he had no right to work on the basis of said appointment as unless and until it is established that appointment of petitioner was genuine, he had no right to get salary.

29. In the case of Kailash Singh (2005 AIR SCW 3273) (supra) the facts were that the person had overstayed in service after having completed the age of superannuation. He had actually worked for a period of five years without any dispute as to age. The opposite parties had conceded before the Supreme Court that there would be no recovery of salary paid. In these circumstances, the Court had directed that no recovery of salary paid to the appellant shall be made, as such, the aforesaid judgment is of no help to petitioner.

This extract is taken fromVinay Kumar Singh v. State of U.P., 2012 SCC OnLine All 4171 : (2013) 3 All LJ 305 : 2013 Lab IC 1984 at page 309

30. In the case of Sushil Kumar Pandey (2010 (5) ALJ 554) (supra), me Division Bench while modifying the order of learned single Judge wherein direction was issued to terminate the service and recovery of the amount paid as salary had observed that the direction of learned single Judge so far as it relates to termination of service does not require interference. However, since the petitioner has worked for more than 10 years, it would be too severe for the acts and omission on his part as there is also omission and negligence on the part of the authorities in granting appointment to the appellant, as such, no recovery of the amount paid as salary shall be made. The Court has also observed that even otherwise under Article 23 of the Constitution the ''Begar' is prohibited. In that case the recovery order was issued on the basis of direction issued by the Court. There was no dispute to the payment given by the opposite parties. However, in the present case it is the specific case of the opposite parties that the petitioner has obtained appointment and transfer from Agra on the basis of forged documents and he was not entitled to get salary. He had worked during the period 20.7.2004 to May, 2007 on the basis of forged documents and, as such, the amount paid as salary during the said period shall be recovered."

Accordingly and for all the aforesaid reasons the Court fails to find in favour of the petitioner. The orders impugned merit no interference.

The writ petition shall in consequence stand dismissed.

Order Date :- 20.1.2021

Arun K. Singh

(Yashwant Varma, J.)