Jharkhand High Court
Union Of India vs Smt. Sabita Kumari on 5 January, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 2213 of 2019
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Union of India --- --- Petitioner
Versus
Smt. Sabita Kumari -- --- Respondent
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CORAM: The Hon'ble Mr. Justice Aparesh Kumar Singh
The Hon'ble Mrs. Justice Anubha Rawat Choudhary
Through Video Conferencing
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For the Petitioner : Mr. Rajiv Sinha, A.S.G.I.
Mr. Jitendra Tripathi, CGC.
For the Respondent : Mr. Anish Khan, Adv.
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13/05.01.2021 Heard learned counsel for the parties.
The applicant/respondent herein secured appointment as a
Safaiwali by submitting a matriculation certificate (Annexure-2) issued by the
Bihar School Examination Samiti, Patna dated 21st November 1998 showing
her to have passed the matriculation exam in 2nd Division. The appointment
letter (Annexure-3) being office memorandum dated 7th August 2013 besides
containing several other conditions stipulated as under :-
"14. If any declaration given or information furnished by him/her
proves to be false or if he/she is found to have willfully suppressed
any material information, he/she will be liable to removal from
service and such other action as Government may deem necessary.
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A formal joining letter will be issued after verification of
character and antecedents and certificates etc., and if verification
reveals that any certificate is false, the service will be terminated
without assigning any reason and without prejudice to such further
action as may be taken under the provision of Indian Penal Code
for production of false certificate."
On verification from the Bihar School Examination Samiti, it
turned out that she had failed in the matriculation exam. Letter dated 31st
December 2015 (Annexure-5) containing the verification report of the three
employees including the applicant Sabita Kumari is enclosed in support. It
also contains an endorsement against the name of the applicant that the
certificate of having passed matriculation in 2nd Division is wrong. She was
asked to show-cause vide letter dated 2nd March 2016 and 5th April 2016 and
being dissatisfied with her explanation, her services were terminated vide
order dated 3rd June 2016. The learned Tribunal relied upon the decision of
the Apex Court in the case of Ratnesh Kumar Choudhary Vs. Indira Gandhi
Institute of Medical Science, Patna, Bihar & Ors. [JT 2015 (9) 363] and
came to a finding that due procedure as contemplated under Article 311 of the
Constitution of India has not been followed, though the order of termination is
stigmatic in nature. Direction was issued to reinstate her and also grant back
wages to the extent of 50%. The respondents/petitioner herein were granted
liberty to conduct proper inquiry in accordance with law and take further
action.
Learned counsel for the petitioner submits that as per the
conditions of the appointment letter and also for the reason that if the
appointment has been secured on a false representation/forged document i.e.
the matriculation certificate, the entire super-structure has to fall, if the edifice
goes away. Therefore, there was no requirement of following the procedure as
prescribed under Article 311 of the Constitution of India. The impugned order
deserves to be set aside.
Learned counsel for the applicant/respondent herein submits that
the certificate issued by the Bihar School Examination Samiti is not alleged to
have been forged by the petitioner as is also obvious from the verification
report dated 31st December 2015 (Annexure-5) submitted by the Deputy
Secretary (Vigilance) of the Examination Committee. Applicant had
completed two years of probation and must be treated to have been confirmed
in service. Therefore, a proper disciplinary inquiry ought to have been
undertaken before passing the termination order. The order being stigmatic in
nature.
We have considered the submissions of learned counsel for the
parties and the relevant material facts on record. We have also perused the
impugned order.
The facts of the present case, as briefly noted hereinabove, show
that it was not a case of misconduct during probation which was the basis for
termination order and should have been preceded with a departmental inquiry
in line with the decision rendered by the Apex Court in the case of Ratnesh
Kumar Choudhary (supra). In the instant case the very basis on which the
appointment was secured, has turned out to be false as the applicant had failed
in the matriculation exam. The verification report dated 31 st December 2015
submitted by the Bihar School Examination Committee has not been
challenged by the applicant. Fraud vitiates all solemn proceedings. Legal
maxim "Sublato fundamento cadit opus" is applicable, meaning thereby in
case of foundation is removed, the super-structure falls. The Apex Court in the
case of Devendra Kumar v. State of Uttaranchal, (2013) 9 SCC 363
paragraphs-13, 14, 15, 18 and 25 has held as under :-
13. It is a settled proposition of law that where an applicant gets an
office by misrepresenting the facts or by playing fraud upon the competent
authority, such an order cannot be sustained in the eye of the law. "Fraud
avoids all judicial acts, ecclesiastical or temporal." (Vide S.P.
Chengalvaraya Naidu v. Jagannath.) In Lazarus Estates Ltd. v. Beasley
the Court observed without equivocation that: (QB p. 712)
"... No judgment of a court, no order of a Minister can be allowed
to stand if it has been obtained by fraud, for fraud unravels
everything."
14. In A.P. State Financial Corpn. v. GAR Re-Rolling Mills and State
of Maharashtra v. Prabhu this Court has observed that a writ court, while
exercising its equitable jurisdiction, should not act to prevent perpetration
of a legal fraud as courts are obliged to do justice by promotion of good
faith. "Equity is, also, known to prevent the law from the crafty evasions
and subtleties invented to evade law."
15. In Shrisht Dhawan v. Shaw Bros., it has been held as under: (SCC
p. 553, para 20)
"20. Fraud and collusion vitiate even the most solemn proceedings
in any civilised system of jurisprudence. It is a concept descriptive of
human conduct."
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18. The ratio laid down by this Court in various cases is that
dishonesty should not be permitted to bear the fruit and benefit those
persons who have frauded or misrepresented themselves. In such
circumstances the court should not perpetuate the fraud by entertaining
petitions on their behalf. In Union of India v. M. Bhaskaran this Court,
after placing reliance upon and approving its earlier judgment in
Vizianagaram Social Welfare Residential School Society v. M. Tripura
Sundari Devi, observed as under: (M.Bhaskaran case, SCC p.104, para 6)
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.
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25. More so, if the initial action is not in consonance with law, the
subsequent conduct of a party cannot sanctify the same. Sublato
fundamento cadit opus -- a foundation being removed, the superstructure
falls. A person having done wrong cannot take advantage of his own
wrong and plead bar of any law to frustrate the lawful trial by a
competent court. In such a case the legal maxim nullus commodum capere
potest de injuria sua propria applies. The persons violating the law
cannot be permitted to urge that their offence cannot be subjected to
inquiry, trial or investigation. (Vide Union of India v. Major General
Madan Lal Yadav and Lily Thomas v. Union of India.) Nor can a person
claim any right arising out of his own wrongdoing (jus ex injuria non
oritur).
Thus, if the applicant had secured appointment on the basis of a
false certificate showing her to have passed in 2 nd Division which after
verification showed that she had failed in the said exam, she could not claim a
legal right to continue in employment. There is no requirement to follow
departmental proceeding in such a case. Learned Tribunal has committed an
error in law and on facts in holding otherwise. The impugned order, therefore,
deserves to be set aside. Accordingly, it is set aside. The writ petition is
allowed.
(Aparesh Kumar Singh, J.)
(Anubha Rawat Choudhary, J.)
Shamim/
