Ranu Rakhmaji Muley vs The High Court Bombay & Ors
2017 Latest Caselaw 1341 Bom

                                 1                       wp1610.05

  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
         AURANGABAD BENCH, AURANGABAD

              WRIT PETITION NO. 1610 OF 2005 
Smt. Ranu d/o Rakhmaji Muley,
aged 42 years, occ. Nil
R/o Block No. 6, Shiva Apartment
Ajintha Nagar, Deolgaonraja Road,
Jalna                                     ...Petitioner
                 
         VERSUS

1]      The High Court of Judicature
        of Bombay, (Through its
        Registrar-General),
        Mumbai,

2]      The Registrar (Legal),
        High Court of Judicature at Bombay,
        (Appellate Side), Mumbai,

3]      The District & Sessions Judge,
        Jalna                             ...Respondents


                           .....
Shri Avinash S. Deshmukh, advocate  for petitioner 
Shri Nitin B. Suryawanshi, advocate for respondent 
                           .....

 CORAM : S.V.GANGAPURWALA & K.L.WADANE, JJ.

DATE OF RESERVING THE JUDGMENT : 10.2.2017

DATE OF PRONOUNCEMENT OF JUDGMENT : 31.3.2017

JUDGMENT : (Per K.L.Wadane, J.)

By this petition, the petitioner assails

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the order passed by the Disciplinary authority

respondent no.3 dated 16.12.1994 and the order

passed by the appellate authority dated 17.11.2004

with the following reliefs : -

"(A) To quash the impugned orders dated 16th December 1994 removing the petitioner from service, passed by the Disciplinary Authority and District Judge, Jalna as well as the order dated 17.11.2004 in Administrative Appeal No. A&R/1057/2004 rejecting the appeal passed by the High Court, by issuing a writ of certiorari or any other appropriate writ, order or direction, as the case may be.

            (B)            To   direct   the   respondents   to 
            reinstate              the       petitioner            with 

continuity of service and full back wages."

2. The case of the petitioner is that the

petitioner applied for the post of Clerk-cum-

Typist pursuant to an advertisement dated

13.5.1981 to be filled in at District Court, Jalna

and the petitioner came to be selected for the

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post of Junior Clerk/Typist by the Advisory

Committee on the basis of her qualification and

performance in the written examination as well as

viva voce test. The petitioner did not apply for

the post reserved for Other Backward Class. She

was selected in the open category.

3. One Mr. Digambar Gaikwad filed complaint

to the District Magistrate, Jalna alleging that

the petitioner had secured Government job by using

false caste certificate. The District Magistrate,

Jalna was pleased to reject the said complaint

vide order, dated 9.6.1989. The District

Magistrate, Jalna reopened the complaint and held

that the caste certificate obtained by the

petitioner was false and forwarded his finding to

the respondent no.3 District Judge, Jalna.

4, On receipt of such finding from the

District Magistrate, respondent no.3 appointed the

Inquiry Officer who issued charge sheet. First

charge was of obtaining false caste certificate

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and second was that on the basis of false caste

certificate secured Government job. The petitioner

submitted her reply/defence statement in writing

to the charge and denied article of charges. The

Inquiry Officer/the then Additional District

Judge, Jalna after recording the evidence of two

witnesses submitted report to respondent no.3,

however, the Disciplinary Authority and the

District Judge, Jalna did not agree with the

finding given by the Inquiry Officer regarding

obtaining Government service by the petitioner on

the basis of caste certificate. Respondent no.3

directed further enquiry. Thereafter evidence of

one witness was recorded and Enquiry Officer

submitted further additional report.

4. On 16.3.1994 the Disciplinary Authority

and the District Judge issued show cause notice to

the petitioner calling upon her to show cause as

to why she shall not be dismissed from service.

On 16.3.1994 the Disciplinary Authority held the

petitioner guilty of both the charges and passed

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an order removing her from service. The

petitioner preferred an Administrative Appeal.

The Administrative Judge of the High Court of

Bombay dismissed the appeal.

5. The petitioner challenged the order dated

16.12.1994 and the order passed by the Appellate

Authority dated 17.7.1995 in Writ Petition No. 993

of 1996. This Court remanded the matter to the

Appellate Authority with direction to decide the

appeal afresh after giving opportunity to the

petitioner of being heard. The petitioner was

called for personal hearing on 16.10.2004. The

petitioner came to know that her Administrative

Appeal was rejected by the Appellate Authority on

17.11.2004. Hence this Writ Petition.

6. On behalf of the respondent, affidavit-

in-reply is filed on record. It is contended that

the committee has selected the petitioner by

giving additional marks only because of her caste

shown as O.B.C. It is further contended that on

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careful scrutiny of marks mentioned in the list it

is clear that when the petitioner was interviewed,

the Selection Committee has given consolidated

total 36 marks to the petitioner in that

interview. One Ranjana Inamdar secured 38 marks

and one Mr. Gawali secured 37 marks. Ranjana

Inamdar and Mr. Gawali were candidates from open

category. If the petitioner was considered as a

non-reserved or a general candidate, the Advisory

Committee would have given priority to those

candidates who have secured higher marks than the

petitioner. This fact shows that the petitioner

was selected as she represented herself as a

member of O.B.C. otherwise Ranjana Inamdar was to

be selected in the place of petitioner. The

petitioner misrepresented herself to be O.B.C.

candidate. So, according to the respondents, the

petitioner secured the job representing herself to

be member of Other Backward Class, therefore, she

has committed serious misconduct. Considering the

report submitted by the Inquiry Officer the

petitioner was dismissed from service and the said

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dismissal was also confirmed by the appellate

authority.

7. We have heard Mr. A.S.Deshmukh, learned

counsel for the petitioner and Shri

N.B.Suryawanshi, learned counsel for the

respondents. We have also perused the documents

on record.

8. Looking to the rival contentions of both

the parties, short question that arises for our

consideration is whether the petitioner secured

the Government job i.e. the post of Clerk-cum-

Typist on the basis of false caste certificate.

9. On scrutiny of record, it reveals that the

advertisement dated 13.5.1981 was published

inviting applications for 32 different posts to be

filled in the District Court, Jalna. It was not

mentioned in the advertisement that a particular

post is reserved for Other Backward Class or other

reserved categories nor the respondents have

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claimed so.

10. The real controversy centers around the

caste certificate which is stated to be obtained

by the petitioner by misrepresentation claiming

her to be belonging to Other Backward Class. The

caste certificate is dated 12.8.1980 much prior to

the date of advertisement. Therefore, it cannot

be said that the petitioner has obtained the caste

certificate in anticipation that the post reserved

for Other Backward Class would be advertised and

for taking undue advantage of such advertisement

in future she obtained the caste certificate. It

is true that the petitioner represented herself

belonging to Other Backward Class and the

Executive Magistrate had issued the caste

certificate in her favour. However, on complaint

made by one Digambar Gaikwad the certificate

issued in favour of the petitioner was cancelled.

11. We are aware that the appreciation and re-

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appreciation of evidence is not permissible in the

Writ Petition under Article 226 of the

Constitution of India. Contentions of the

petitioner appear to be acceptable on the basis of

the face value of the statement of the witnesses

recorded during the departmental proceedings, such

statements are to be considered. Therefore, it is

necessary to refer certain statements of the

witnesses.

12. Initially the disciplinary authority has

examined witness Manohar Agnihotri, Assistant

Superintendent of District Court, Jalna. At the

relevant time, he was serving in the District

Government Pleaders's office. He stated that he

was serving as Nazir with Mr. Bhavthankar the then

Chief Judicial Magistrate, Jalna. He was shown

the list of the candidates prepared by witness

Bhavthankar and the marks shown against the

candidates, however, he was unable to identify the

hand writing in the ink against the candidate

(petitioner) at Sr. No. 58. Looking to the

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statement of second witness Mr. Kanhekar, the then

Civil Judge, Senior Division, Jalna, it appears

that he was one of the member of the Advisory

Committee present at the time of interview along

with the then Chief Judicial Magistrate Mr.

Bhavthankar and the then District Judge Mr.

I.G.Shah. During his deposition this witness has

stated that the name of present petitioner in the

list of candidates is at Sr. No. 58 and at the

time of interview and till this witness signed the

list, the words O.B.C. in column no.5 were not

written. He does not know who has written such

words subsequently. He further stated that the

petitioner had not submitted her caste certificate

and her selection was from the open merit. During

cross-examination this witness has stated that the

petitioner is selected on merit.

13. During the deposition, the list of the

selected candidates was shown to the then District

Judge Mr. I.G.Shah and this witness has stated

that the selection of the petitioner was on the

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basis of merit. 20 candidates were selected in

which the petitioner stood at Sr. No. 5. He

further stated in clear words that even if the

petitioner was not belonging to O.B.C. still she

could have been selected.

14. So looking to the statement of these

witnesses and taking into consideration its face

value, it is crystal clear that the petitioner did

not apply for the post of reserved category nor

she submitted caste certificate along with the

application. The petitioner was not considered as

a candidate belonging to O.B.C. nor she availed

the benefit of reservation. Basically nowhere it

appears from the record that particular post was

reserved for a particular category. In absence of

such record and the pleadings on behalf of the

respondents, it is difficult to accept that a

particular post was reserved for a particular

category.

15. In affidavit-in-reply on behalf of the

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respondents, it is contended that the petitioner

was considered to be belonging to O.B.C.

Therefore, additional marks were given on this

count, but the statement on behalf of respondent

nos. 1 to 3 is without any basis since none of the

member of the Advisory Committee have stated

anything about the same.

16. The reference is made in the affidavit-in-

reply that other two candidates belonging to open

category i.e. Ranjana Inamdar and Mr. Gawali have

secured 38 and 37 marks, respectively and the

petitioner has secured 36 marks. Therefore,

according to the respondents the petitioner was

considered from O.B.C. Therefore, even she

secured less marks than the aforesaid two

candidates, she was selected. If she was not

considered from the O.B.C. category, then the

candidate who secured highest marks in the oral

interview i.e. Ranjana Inamdar could have been

selected. The statement of this respondent is

incorrect because marks secured by the petitioner

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and the aforesaid candidates are only for

interview. Merit list is prepared considering the

marks secured by the candidates in the written

test as well as oral interview. Therefore, it

cannot be said that the afore said two candidates

are meritorious than the petitioner.

17. Mr. Deshmukh, learned counsel for the

petitioner has rightly relied upon the

observations in the case of Vinayak Narayan Navkar

vs State of Maharashtra and others, reported in

2013 (6) ALL M.R. 586. The relevant observations

in para no.9 read as under : -

"9. .......... .......... ........

In our opinion, the general observations or consequences cannot be the foundation of the order imposing penalty of dismissal from service, on the petitioner. The Appellate Authority, as a fact finding authority, has to advert to the facts, the material, the evidence and the documents on the record and the order has to be on the basis of the factual aspects and in consonance with the documents and the material and the evidence on record.

........ ........ ........ "

The observations are relevant and applicable to

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the facts of the present case, as the appellate

authority as well as Inquring Authority have not

taken into consideration the material aspects

appearing on the record.

18. Mr. Suryawanshi, learned counsel for the

respondents relied upon the observations in the

case of Commissioner of Customs (Preventive) vs

M/s Aafloat Textiles (I) P.LTd. and Others,

reported in AIR 2009 SC (Supp) 2320, particularly

in paragraphs 9 and 13, which read as under : -

" 9. "fraud" means] an intention to deceive; whether it is from any expectation of advantage to the party himself or from [the] ill will towards the other is immaterial. The expression 'fraud' involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always call 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.

13. In that case it was observed as follows: (Shrisht Dhawan case7, SCC p. 553, para 20)

Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, 'wing me into the easy-hearted man and trap him into snares'. It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary fraud in equity has been defined as an act or omission to act

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or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Law Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act defines fraud as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of the fact with knowledge that it was false. In a leading English case Derry v. Peek what constitutes fraud was described thus: (AC p. 374)

' fraud is proved when it is shown that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false.' "

It was submitted that the petitioner

pleaded fraud upon the members of the Disciplinary

Committee and thereby secured the job. However,

there is nothing to show that the petitioner

represented herself to be the member of O.B.C. or

that she was selected only because she was

considered from O.B.C. On the contrary, from

record it is seen that the petitioner was selected

on merits.

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19. Mr. Suryawanshi, learned counsel further

relied upon the observations in the case of State

of U.P. And Anr. Vs Man Mohan Nath Sinha and Anr.,

reported in AIR 2010 SC 137, particularly

paragraph 12 thereof, which reads as under : -

" 12. The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision making process. The Court does not sit in judgment on merits of the decision. It is not open to the High Court to re-appreciate and reappraise the evidence led before the Inquiry Officer and examine the findings recorded by the Inquiry Officer as a court of appeal and reach its own conclusions. In the instant case, the High Court fell into grave error in scanning the evidence as if it was a court of appeal. The approach of the High Court in consideration of the matter suffers from manifest error and, in our thoughtful consideration, the matter requires fresh consideration by the High Court in accordance with law. On this short ground, we send the matter back to the High Court. "

20. In the present, we have not appreciated or

re-appreciated the evidence on record, but in

fact, we have considered the aspects which are not

considered by the Disciplinary Committee or

Appellate Authority. Therefore, it cannot be

termed as appreciation or re-appreciation of the

evidence. We have only considered the material

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which the Disciplinary Committee and Appellate

Authority have kept out of consideration. The

ruling cited by the learned counsel for the

respondents are not applicable to the present

case.

21. From the record it appears that the date

of birth of petitioner is 11.10.1958. Therefore,

she must have been retired from service on

10.10.2016 on attaining her age of superannuation.

Since the petitioner has retired from service,

question of her reinstatement does not arise.

22. In view the above, we allow the Writ

Petition. The order passed by the Disciplinary

authority respondent no.3 on 16.12.1994 and the

order passed by the Appellate Authority on

17.11.2004 are quashed and set aside. The service

of the petitioner till her retirement be treated

as continuous for the purposes of pensionary

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benefits. However, the petitioner shall not be

entitled for back wages.

23. Rule is made absolute in above terms. No

costs.

      (K.L.WADANE)       (S.V.GANGAPURWALA)
               JUDGE                 JUDGE


dbm/wp1610.05