Mithilesh Prasad vs The State Of Jharkhand
2021 Latest Caselaw 398 Jhar

                                  [1]



        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                              L.P.A. No.412 of 2018

        Mithilesh Prasad, aged about 48 years, son of Late Ganauri Pandit,
        resident of village-Brahampur, P.O.-Ashrhi, P.S.-Hilsa, District-
        Nalanda, Bihar.

                                                 . ... Appellant/ Writ-Petitioner
                                        Versus

     1. The State of Jharkhand.

     2. The Secretary, Health Department, Government of Jharkhand,
        Ranchi, P.O.+ P.S. & District-Ranchi.

     3. The Director in Chief, Health Services, Jharkhand, Ranchi, P.O. +
        P.S. & District-Ranchi.

     4. The Deputy Commissioner, Giridih, P.O. + P.S. & District-Giridih.

     5. The Civil Surgeon-cum-Chief Medical Officer, Giridih, P.O. + P.S.
        & District-Giridih.

     6. The Deputy Superintendent, Sadar Hospital, Giridih, P.O. + P.S. &
        District-Giridih.

     7. The Secretary, Health Department, Govt. of Bihar, Patna.

                                                  ... Respondents/Respondents
                                     -------

    CORAM :             HON'BLE THE CHIEF JUSTICE
                 HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                                     -------

For the Appellant : Mr. Manoj Tandon, Advocate For the Resp.-State : Mr. Sachin Kumar, AAG-II For the Resp.-No.7 : Mr. S.P. Roy, GA

----------------------------

ORAL JUDGMENT

20/Dated 28th January, 2021 [2]

1. The matter has been heard through video conferencing with the

consent of the learned counsel for the parties. They have no

complaint about any audio and visual connectivity.

2. This is an appeal under Clause 10 of the Letters Patent directed

against the order/judgment dated 10.05.2018 passed by the learned

Single Judge of this Court in W.P.(S) No.5421 of 2016 whereby and

whereunder the writ Court has refused to interfere in the order dated

09.11.2015 passed by the Director-in-Chief, Health Services,

Jharkhand, Ranchi by which the prayer of the appellant/writ-

petitioner for acceptance of his joining as Lab Technician at Blood

Bank, Sadar Hospital, Giridih has been rejected.

3. The brief facts of the case which require to be enumerated reads as

hereunder:

The appellant/writ-petitioner claims to be appointed as

Lab Technician in the year 1991. He claimed to be confirmed in

service by the order of the Director-in-Chief, Health Services,

Bihar, Patna vide letter No.238 dated 27.04.1991. He was posted as

Lab Technician at Blood Bank, Sadar Hospital, Giridih.

It is the case of the appellant/writ-petitioner that he was

regularly working as Lab Technician with full satisfaction of all the

concerned but he became ill and was unable to move anywhere and

as such, he was on leave from 11.02.1994 to 18.02.1994, thereafter,

he submitted application to the Superintendent, Sadar Hospital,

Giridih on 19.02.1994 regarding extension of his leave till

15.03.1994.

[3]

It is the further case of the appellant/writ-petitioner that

he became mentally ill and due to that reason he could not attend

after leave and was under treatment since 11.02.1994 to 19.11.2008

under Dr. Ashok Prasad, Neuro Psychiatrist, Rajendra Institute of

Medical Sciences, Ranchi. The appellant/writ-petitioner after

becoming medically fit for work after doctor's advice, submitted

representation enclosing the prescription of his treatment and

requested to accept his joining so that he be able to perform his

duty. But the Civil Surgeon-cum-Chief Medical Officer, Giridih

neither allowed him to join duty nor took any decision in this

regard. However, his case was referred to the Director-in-Chief,

Health Services, Jharkhand, Ranchi by the Civil Surgeon-cum-

Chief Medical Officer, Giridih vide Letter No.285 dated

04.02.2010. The Director-in-Chief, Health Services, Jharkhand,

Ranchi, wrote a letter on 04.05.2010 to the Civil Surgeon, Giridih

for accepting the joining of the appellant/writ-petitioner because the

Government has not followed the procedure as prescribed in Law.

In the light of the aforesaid direction, the appellant/writ-petitioner

had submitted representation before the Civil Surgeon-cum-Chief

Medical Officer, Giridih requesting therein to allow him to join the

duty. The Civil Surgeon-cum-Chief Medical Officer, Giridih had

not given any response to the aforesaid representation, as such, one

reminder was submitted on 03.09.2010 stating therein the

grievances in detail. The appellant/writ-petitioner had submitted

number of representations to the Civil Surgeon-cum-Chief Medical

Officer, Giridih requesting him to allow him to join the duty,

however, to no effect. The appellant/writ-petitioner having no [4]

option approached to this Court by filing a writ petition being

W.P.(S) No.576 of 2015 which was disposed of on 06.07.2015

directing the authority to take decision on the representation filed by

the appellant/writ-petitioner. In pursuance thereto, the respondents

have taken decision by rejecting the claim of the appellant/writ-

petitioner inter alia on the ground that the appellant/writ-petitioner

was never appointed to the said post rather he, by committing fraud

had inserted his name at serial No.48 claiming to be in the panel,

basis upon which he had performed his duty from 08.04.1991 to

10.02.1994 and got salary by commission of fraud and hence, his

representation had been rejected with a direction to recover the

amount already paid by way of salary.

The aforesaid order was questioned by the appellant/writ-

petitioner before this Court under Article 226 of the Constitution of

India by filing a writ petition being W.P.(S) No.5421 of 2016 but

the aforesaid writ petition had been dismissed on the ground of

commission of forgery, which is the subject matter of the present

intra-court appeal.

4. Mr. Manoj Tandon, learned counsel appearing for the

appellant/writ-petitioner has submitted that even accepting the fact

about the commission of forgery then also a departmental

proceeding was required to be initiated or at least a notice to show

cause ought to have been issued to the appellant/writ-petitioner in

order to follow the principles of natural justice but having not done

so, the impugned decision of the authority is not sustainable in the [5]

eye of law but this aspect of the matter has not been appreciated by

the learned Single Judge.

He further submits that if there is allegation of

commission of fraud, it has to be conclusively proved and that can

only be proved if any regular departmental proceeding would be

initiated and in absence thereof, there cannot be termination of

services on the ground of commission of fraud but this aspect has

also not been appreciated by the learned Single Judge.

5. Per contra, Mr. Sachin Kumar, learned AAG-II appearing for the

State of Jharkhand has submitted that there is no illegality in the

impugned order passed by the authority because the appellant/writ-

petitioner has failed to produce the appointment letter rather his

entire case is based upon the order of confirmation of service.

Further, the appellant/writ-petitioner has not given any conclusive

proof about his joining, therefore, the Director-in-Chief while

passing the order had directed for conducting an enquiry with

respect to the genuineness of the joining of the appellant/writ-

petitioner.

The writ Court after taking into consideration this aspect

of the matter, has rightly not interfered with the impugned order,

hence, the same may not be interfered with.

6. Mr. S.P. Roy, learned counsel appearing for the State of Bihar has

put his appearance and filed counter affidavit as directed by this

Court and by referring to the same, submission has been made that

the appellant/writ-petitioner had never been appointed to the said [6]

post and in order to substantiate his argument he has produced the

original merit list in which at serial No.48 thereof, the name of one

Shri Devendra Kumar is mentioned but the appellant/writ-

petitioner, by committing fraud, had inserted his name at serial

No.48 in place of Shri Devendra Kumar and managed himself to

work as Lab Technician and that is the reason without producing

appointment letter he has approached to this Court by enclosing the

order of confirmation in service.

He submits that once there is commission of fraud on the

part of the litigant in getting appointment, the very appointment will

be void ab initio and in that view of the matter, there is no question

of initiating any departmental proceeding or even to issue show

cause notice.

He further submits that the question of initiation of

departmental proceeding or issuance of show cause notice will only

come where the fact is in dispute but as would be evident from the

specific stand taken by the respondent-State of Jharkhand and

respondent No.7 that the appellant/writ-petitioner had obtained the

appointment by commission of forgery. But this fact has not been

disputed even though time was allowed by this Court as prayed by

the learned counsel for the appellant/writ-petitioner to file rejoinder

to rebut the aforesaid statement but no such rebuttal reply has been

filed with respect to the aforesaid specific contention, hence, there

is no requirement to initiate any departmental proceeding when the

fact is not in dispute.

[7]

7. We have heard the learned counsel for the parties, perused the

documents available on record and the finding recorded by the

learned Single Judge.

The admitted fact in this case is that the appellant/writ-

petitioner claims to be appointed as Lab Technician to which he

claims that his services had been confirmed vide order dated

27.04.1991 (Annexure-1 to the writ petition). Admittedly, the

appellant/writ-petitioner has not placed the appointment letter either

before the writ Court or before this Court. The appellant/writ-

petitioner had given his joining and started discharging his duty but

on the ground of illness he took leave to which he continued till

19.11.2008. Thereafter, he reported on duty along with the

prescription of doctor but his joining had not been accepted which

led him to approach this Court by filing writ petition being W.P.(S)

No.576 of 2015 which was disposed of on 06.07.2015 directing the

Director-in-Chief to take decision on the representation. In

pursuance thereto, a decision was taken on 09.11.2015 by which the

claim of the appellant/writ-petitioner for acceptance of his joining

was rejected.

It is further evident from the order dated 09.11.2015 that

elaborate reason has been assigned for rejection of the claim of the

appellant/writ-petitioner and one of the grounds is commission of

forgery since there is specific reference of the letter issued by the

Health Directorate, Bihar, Patna as contained in Letter No.238 dated

27.04.1991 which had been fabricated by inserting his name at [8]

serial No.48 basis upon which he had managed to get an order of

confirmation of his service.

The Director-in-Chief, for this, also directed to conduct

an enquiry but on consideration of the entire aspect of the matter,

came to a finding that by commission of forgery in the letter dated

08.03.1991, the appellant/writ-petitioner had obtained service,

therefore, his representation is fit to be rejected. Accordingly, the

same was rejected with a direction to recover the entire salary paid

to him.

The aforesaid order was challenged by filing a writ

petition before this Court being W.P.(S) No.5421 of 2016 which is

the subject matter of the present appeal.

8. The learned counsel appearing for the appellant/writ-petitioner has

taken the sole ground that without initiating any regular

departmental proceeding, there cannot be a conclusion about

commission of forgery or even in that circumstances, a notice to

show cause ought to have been issued.

9. The question of initiation of departmental proceeding will only

come if the fact is in dispute. If the fact is in dispute, certainly, an

enquiry is required to be conducted or at least a notice to show

cause is to be issued so that after providing an opportunity of

hearing to the affected party, a conclusive decision be taken.

Reference in this regard be made to the judgment rendered by the

Hon'ble Apex Court in Escorts Farms Ltd. vs. Commissioner, [9]

Kumaon Division, Nainital, U.P. & others, (2004) 4 SCC 281 at

paragraph no.64 has held as follows:

"64. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India."

In the case of Dharampal Satyapal Ltd. v. Deputy

Commissioner of Central Excise, Gauhati and others, (2015) 8

SCC 519 wherein their Lordships have held at paragraph-39 which

is being reproduced hereinbelow:

"39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasizing that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason- perhaps because the evidence against the individual is thought to be utterly compelling- it is felt that a fair hearing "would make no difference"- meaning that a hearing would not change the ultimate conclusion reached by the decision-maker."

[10]

This Court has considered the aforesaid proposition of

law and came to a conclusive finding that if the fact is not in dispute

and even if a departmental proceeding would be directed to be

initiated the same will be nothing but a futile exercise and empty

formality.

10. We have examined the fact of this case on the basis of the aforesaid

proposition of law and found therefrom that the specific case of the

respondent-State of Bihar, the appointing authority, who has filed

an affidavit enclosing the copy of the Memo No.107(25) dated

08.03.1991, the claim of the appellant/writ-petitioner for

appointment is based upon the said document claiming himself to

be at serial No.48 in the said list but as would appear from the list it

would be evident that at serial No.48 the name of one Shri

Devendra Kumar, Village-Bahlolpur, Post-Bhagwanpur, District-

Vaishali-14 is mentioned.

It further appear that this Court had granted time to the

learned counsel for the appellant/writ-petitioner to file response to

the said supplementary counter affidavit so that the issue of

initiation of departmental proceeding can be adjudged considering

the fact that if the aforesaid stand of the State of Bihar would have

been disputed by the appellant/writ-petitioner, certainly, the

contention of the learned counsel for the appellant/writ-petitioner

will be said to be correct, however, reply to the supplementary

counter affidavit has been filed but no rebuttal reply is there

refuting the stand of the State of Bihar about the commission of [11]

forgery as also the document appended thereto at Annexure-A, i.e.,

Memo No.107(25) dated 08.03.1991.

In that view of the matter, when the aforesaid document

pertaining to the appointment of the appellant/writ-petitioner has

not been disputed by the appellant/writ-petitioner, there can be no

quarrel about the fact that the commission of forgery is admitted. If

the contention of the appellant/writ-petitioner would be accepted for

initiation of a departmental proceeding, the same would be a futile

exercise and empty formality and as has been held by the Hon'ble

Apex Court in the aforesaid judgment that when the fact is not in

dispute, there is no requirement to go for an enquiry because even

after enquiry the result would be same, therefore, the same will lead

to empty formality.

11. Learned counsel for the appellant/writ-petitioner has also submitted

that the State of Jharkhand has initiated a departmental enquiry

subjecting the memorandum of charge, therefore, the same may at

least be directed to be concluded but we are not in agreement with

such argument due to the fact as elaborated hereinabove and at the

risk of repetition the same is being reiterated herein that if the

aforesaid departmental proceeding would be allowed to be

continued in absence of the document dated 08.03.1991 having not

been disputed by the appellant/writ-petitioner, the departmental

proceeding will end in empty formality since the result would be

same.

[12]

12. We have considered the factual aspect as to whether in a case of

commission of forgery the litigant is entitled to get any relief from

the Court of Law or not?

It is not in dispute that the suppression of material fact

amounts to fraud as per the definition of 'fraud' as provided under

Section 17 of the Indian Contract Act, 1872. For ready reference the

same is being reproduced hereinbelow:

"17. ''Fraud'' defined -''Fraud'' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:-

(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

(2) the active concealment of a fact by one having knowledge or belief of the fact;

(3) a promise made without any intention of performing it; (4) any other act fitted to deceive;

(5) any such act or omission as the law specially declares to be fraudulent."

13. It is further settled position of law that fraud vitiates everything.

Forgery avoids all judicial acts, ecclesiastical or temporal. The

Hon'ble Apex Court while considering the ambit of forgery in

Devendra Kumar Vs. State of Uttaranchal and Ors., (2013) 9 SCC

363 has observed at paragraph Nos.13, 14, 15, 16 and 17 as

follows:-

"13. It is 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 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) [13]

".......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. Vs. GAR Re-Rolling Mills and State of Maharashtra Vs. 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. Sahw Bros., it has been held as under: (SCC p. 553, para 20) "20. Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct."

16. In United India Insurance Co. Ltd. v. Rajendra Singh this Court observed that "fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine maxim which has not lost temper over all these centuries. A similar view has been reiterated by this Court in M.P. Mittal v. State of Haryana.

17. In Ram Chandra Singh v. Savitri Devi this Court held that "misrepresentation itself amounts to fraud."

14. Thus, the ratio laid down by the Hon'ble Apex Court in the

judgments referred hereinabove lays down that dishonesty should

not be permitted to bear the fruit and benefit those persons who

have frauded or misrepresented, in such circumstances, the Court

should not perpetuate the fraud by entertaining petitions on their

behalf.

15. This Court, on the basis of the aforesaid position of law as

discussed above and considering the fact of the case in hand, has

found therefrom that it is the admitted case of the appellant/writ-

petitioner that he has not produced appointment letter either before [14]

the writ Court or before this court. The sole case is based upon the

order of confirmation dated 27.04.1991.

The question is, that the order of confirmation cannot be

a substantive proof of appointment rather the substantive proof of

the appointment would be the appointment letter issued by the

competent appointing authority. The confirmation in service is

based upon the services rendered after particular period, therefore,

the reliance placed by the learned counsel for the appellant/writ-

petitioner on the order of confirmation of his service cannot be said

to be a conclusive proof of his appointment in absence of any

appointment letter.

Further, the respondent-State of Bihar has come out with

the entire selection list as contained in Memo No.107(25) dated

08.03.1991 in order to substantiate the fact about the commission of

forgery on the part of the appellant/writ-petitioner because the

appellant/writ-petitioner is claiming his appointment on the basis of

the merit list as contained in Memo No.107(25) dated 08.03.1991

referring his name at serial No.48 thereof but the said Memo

contains the name of Shri Devendra Kumar at serial No.48.

The aforesaid Memo No.107(25) dated 08.03.1991 has

not been disputed by the appellant/writ-petitioner, however,

response to the supplementary counter affidavit dated 14.10.2020

has been filed.

16. In that view of the matter, if the Director-in-Chief prima facie found

the case of the appellant/writ-petitioner of commission of forgery, [15]

the same cannot be said to be incorrect in view of the original merit

list dated 08.03.1991 produced by the State of Bihar, therefore, we

are of the considered view that here the action of the appellant/writ-

petitioner is coming under the ambit of the definition of 'fraud' and

as has been settled by the Hon'ble Apex Court, fraud vitiates

everything, therefore, the question of acceptance of joining treating

the appellant/writ-petitioner as a valid appointee, does not arise.

17. The Learned Single Judge, after taking into consideration these

aspects of the matter, has declined to interfere with the impugned

decision dated 09.11.2015 which does not suffer from any infirmity.

Accordingly, the appeal fails and is dismissed.

18. Pending interlocutory application(s), if any, also stand disposed of.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Saurabh

A.F.R.