Jharkhand High Court

Bibhishan Prasad vs Damodar Valley Corporation ... on 22 August, 2023

                                                        L.P.A. No.195 of 2022
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   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  L.P.A. No.195 of 2022
                            ----
Bibhishan Prasad, Aged about 55 years, Son of Lakhan Tanti,
Resident of Qr. No.ME-24 D, Area No.5, D.V.C. Maithon,
P.O.-Maithon Dam, P.S.-Chirkunda, District-Dhanbad.
                      ...     ...     Appellant/Petitioner
                        Versus
1. Damodar Valley Corporation through Member Secretary,
having   its   office   at   D.V.C.    Towers,   VIP   Road,       P.O.-
Takugachhi, P.S.-Maniktala, District-Kolkata-700045.
2.   Principal Chief Engineer, D.V.C. Towers, VIP Road, P.O.-
Takugachhi, P.S.-Maniktala, District-Kolkata-700045.
3.   General Manager (HR), D.V.C. Towers, VIP Road, P.O.-
Takugachhi, P.S.-Maniktala, District-Kolkata-700045.
                        ...    ... Respondents / Respondents
                           -------
CORAM :HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
              HON'BLE MR. JUSTICE NAVNEET KUMAR
                            ------
For the Appellant  : Mr. Shekhar Prasad Sinha, Advocate
For the State      : Mr. Prashant Kumar Singh, Advocate
                          --------

ORAL JUDGMENT
Order No.04 : Dated 22nd August, 2023
Per Sujit Narayan Prasad, J.

I.A. No.4552 of 2022

1. This interlocutory application has been preferred under

Section 5 of the Limitation Act for condoning the delay of 42

days in preferring this Letters Patent Appeal.

2. Heard the parties.

3. Having regard to the averments made in the application

and submissions made on behalf of the appellant, we are of

the view that the appellant was prevented from sufficient L.P.A. No.195 of 2022

cause in filing the appeal within the period of limitation. As

such, the delay of 42 days in preferring the appeal is hereby

condoned.

4. I.A. No. 4552 of 2022 stands allowed.

L.P.A. No.195 of 2022

5. The instant intra-court appeal, preferred under Clause

10 of the Letters Patent, is directed against the order dated

23.02.2022 passed by learned Single Judge of this Court in

W.P.(S) No.1630 of 2019 whereby and whereunder while

dismissing the writ petition the order dated 01.02.2019

passed by the Appellate Authority whereby the order dated

21.05.2018 passed by the Disciplinary Authority dismissing

the writ petitioner from service has been affirmed, has been

refused to be interfered with.

6. Brief facts of the case as per the pleadings made in the

writ proceeding, which are required to be enumerated herein,

read as under :-

7. It is the case of the petitioner that he belongs to

Scheduled Caste Community and he joined D.V.C. in the year

1989 on the post of Assistant Operator(Electrical) after

successful completion of selection procedure and verification

of educational certificate and caste certificate.

8. The Joint Director of Personnel(T) vide letter No. 2292

dated 12.06.2012 wrote to the Petitioner that the Caste

Certificate of the Petitioner issued by Block development L.P.A. No.195 of 2022

Officer, Nirsa bearing No. 251 dated 25.06.1979 at the time of

joining D.V.C. on 28.08.1989 is not in conformity with the

proforma as stipulated by Government of India. On

verification of the same, it has been confirmed by the Deputy

Commissioner, Dhanbad that the record is forty years old

and no documents in this regard is available in this office.

Thereafter, the Petitioner was advised to furnish a fresh Caste

Certificate issued by competent authority as per Government

of India Rules to be obtained from his permanent abode i.e.

Bhagalpur on or before 09.07.2012.

9. As per instruction, the writ petitioner submitted another

caste certificate bearing No.347 dated 29.06.2001 issued

under the signature of D.M., Banka, Bihar. On verification, it

was reported that the same had not been issued from the

office of the D.M., Banka.

10. Thereafter, by the Orders of Director (HRD) &

Disciplinary Authority dated 25.09.2013 the Petitioner has

been put under Suspension with immediate effect. The

memorandum of charge was issued against him on

20.12.2013 and the petitioner was asked to submit his

written statement as defence within 10 days from the date of

receipt of the said Memorandum of charge.

11. After enquiry, the enquiry officer submitted the enquiry

report wherein the charges have been found to be proved. The

disciplinary authority accepted the finding of the enquiry L.P.A. No.195 of 2022

officer and ordered for removal from service vide order dated

21.05.2018. The aforesaid order was challenged before the

appellate authority but the appellate authority dismissed the

appeal vide order dated 01.02.2019 and affirmed the order

passed by the disciplinary authority. Being aggrieved, the writ

petitioner filed writ petition before this Court being

W.P.(S)1630 of 2019 which was also dismissed against which

present intra-court appeal has been preferred.

12. It is a case where the writ petitioner was appointed on

the post of Assistant Operator (Electrical). The said

recruitment was made under the Scheduled Caste category

based upon the caste certificate dated 25.06.1979. The

respondents had issued a letter dated 12.06.2012 mentioning

therein that the caste certificate of the writ petitioner was not

in conformity with the Government of India Rules. The writ

petitioner was thereafter requested to furnish a fresh caste

certificate issued by the competent authority, to be obtained

from his permanent abode, i.e., Bhagalpur, on or before

09.07.2012.

13. The writ petitioner, in compliance to the said direction,

has produced the attested copy of the caste certificate No.347

dated 29.06.2001 issued from the district of Banka. The said

certificate, when was verified from the issuing authority of the

district Banka, it was found that the aforesaid caste

certificate was not issued from the said office. Subsequently, L.P.A. No.195 of 2022

the writ petitioner obtained a fresh caste certificate from

Circle Officer, Belhar, Banka dated 13.06.2016 based upon

which the claim of the writ petitioner is that there is no

irregularity/fraud committed by him by pressing his

candidature under the Scheduled Caste category.

14. The authority, being not satisfied, had initiated a regular

departmental proceeding on the basis of the clarification

obtained from the issuing authority from where the caste

certificate, being Certificate No.347 dated 29.06.2001, was

obtained. It was communicated that no such caste certificate

was issued. The writ petitioner was asked to defend himself

by putting appearance before the enquiry officer. The writ

petitioner appeared and defended his case. The enquiry

officer has found the charges proved. On acceptance by the

disciplinary authority, he has been dismissed from service.

The aforesaid order of dismissal was carried to the appeal,

appellate authority vide order dated 01.02.2019 has affirmed

the order of dismissal dated 21.05.2018.

15. The writ petitioner, being aggrieved, has preferred writ

petition being W.P.(S) No.1630 of 2019 by taking the ground

that after conclusion of the enquiry and before passing of the

order by the disciplinary authority, the caste certificate

No.714 dated 13.06.2016 issued by the Circle Officer, Belhar,

Banka was produced for the purpose of showing the

genuineness of caste certificate No.347 dated 29.06.2001, but L.P.A. No.195 of 2022

the said caste certificate dated 13.06.2016 was not

considered by the disciplinary authority.

16. The aforesaid aspect of the matter, according to the

learned counsel for the petitioner, has not been appreciated

in right perspective by the learned Single Judge and, as such,

dismissal of the claim of the writ petitioner by the learned

Single Judge cannot be said to be justified, hence, not

sustainable in the eyes of law.

17. Per contra, Mr. Prashant Kumar Singh, learned counsel

appearing for the respondent DVC, has submitted that there

is no illegality in the impugned orders either passed by the

disciplinary authority of by the learned Single Judge in

exercise of power conferred under Article 226 of the

Constitution of India.

18. The charge was framed on the ground of commission of

fraud since the writ petitioner had produced the photocopy of

caste certificate No.347 dated 29.06.2001 which

subsequently has been found to be not issued by the

competent authority of Banka district, therefore, there is no

question of non-commission of fraud or misrepresentation,

rather, the enquiry officer has conclusively come to the

conclusion based upon the verification report given by the

issuing authority of the district of Banka.

19. The enquiry officer, if in that premise, has found the

charge proved against the writ petitioner, the same cannot be L.P.A. No.195 of 2022

said to suffer from any error or perversity.

20. The case of the writ petitioner herein is that after

conclusion of enquiry, at the time of passing of the final order

by the disciplinary authority on acceptance of the enquiry

report, a new caste certificate No.714 dated 13.06.2016 has

been produced by the writ petitioner. The submission has

been made that the caste certificate No.714 dated 13.06.2016

issued by the Circle Officer, Belhar, Banka may not be

considered by the disciplinary authority at the time of

submission of explanation to be furnished of the second show

cause, since the disciplinary authority is to act upon the

finding recorded by the enquiry officer.

21. Further, there is another reason also for not accepting

the caste certificate No.714 dated 13.06.2016 since, as per

instruction, the appellant was required to submit the caste

certificate issued from the district of Bhagalpur and not from

the district of Banka.

22. Learned counsel appearing for the respondents has

submitted that since the enquiry officer has found the charge

proved and on its acceptance, the disciplinary authority, on

consideration of the fact, that the misrepresentation has been

committed and in that view of the matter if the decision of

dismissal has been taken, the same cannot be said to suffer

from an error so far as the order passed by the Administrative

Authority is concerned.

L.P.A. No.195 of 2022

23. The learned Single Judge has taken into consideration

the conduct of the writ petitioner of commission of

misrepresentation and based upon the reason assigned in the

order passed by the disciplinary authority on the basis of the

finding of the enquiry officer, if the learned Single Judge has

refused to interfere with the impugned order, the same

cannot be said to suffer from an error.

24. We have heard the learned counsel for the parties,

perused the documents available on record as also the

finding recorded by the learned Single Judge in the impugned

order.

25. The issue which has been raised on behalf of the

appellant in support of his argument for interfering with the

order of dismissal is that the caste certificate which was

produced by the writ petitioner being caste certificate No.347

dated 29.06.2001 issued under the signature of the District

Magistrate, Banka was the photocopy of its original. The

same was produced since the original was not available.

26. The writ petitioner claims to have been appointed on the

basis of said caste certificate under the Scheduled Caste

category.

27. The enquiry when conducted, the authority has called

upon a report from the issuing authority of the district of

Banka wherein it was reported that no caste certificate was

issued from the said office.

L.P.A. No.195 of 2022

28. The enquiry initiated. The writ petitioner was having no

document in course of enquiry which has been produced at

the time of passing the final order by the authority, i.e., caste

certificate No.714 dated 13.06.2016, issued by the Circle

Officer, Belhar, Banka. The said certificate dated 13.06.2016,

issued by the Circle Officer, Belhar, Banka, according to the

appellant, ought to have been considered before taking final

decision of dismissal after accepting the finding of the

enquiry officer. But we are not in agreement with such

submission for the following reasons:-

(i) Once the disciplinary proceeding was initiated and

the writ petitioner was provided opportunity to defend in

opposition to the imputation of charge wherein the

charge is that the caste certificate being Caste

Certificate No.347 dated 29.06.2001 when enquired

from the issuing authority of the district of Banka, it

was found that the said certificate was not issued by the

concerned authority. The moment the said report has

been submitted by the issuing authority of the district of

Banka, there is no reason to hold the writ petitioner, so

far as his conduct is concerned, to be fair and bona fide.

(ii) The contention is being made that his caste

certificate No.347 dated 29.06.2001 was the photocopy

of its original but the question is that when it was

photocopy of its original then it ought to have been L.P.A. No.195 of 2022

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corroborated by the authority from where original caste

certificate was issued but the report was contrary.

(iii) The contention of the writ petitioner that

subsequent to the said certificate and after conclusion of

the enquiry proceeding, he had obtained a caste

certificate from the Circle Officer, Belhar, district Banka

being Caste Certificate No.714 dated 13.06.2016 which

ought to have been taken into consideration but,

according to our considered view, the same was not

required to be considered since the charge once framed,

i.e., in the year 2013, at the time of issuance of

memorandum of charge which is based upon the

conduct of the writ petitioner in producing the

photocopy of caste certificate which was bearing No.347

dated 29.06.2001. The aforesaid certificate once has

been denied to be issued by the issuing authority, then

submission of the photocopy of the caste certificate

No.347 dated 29.06.2001 by the writ petitioner suggests

that he has tried to mislead the appointing authority but

once he has mislead, thereafter, that conduct cannot be

mitigated by the subsequent development as the writ

petitioner is claiming herein.

29. The law is well settled that if any illegality has been

committed since its inception, it cannot be rectified on the

basis of subsequent development. Reference in this regard be L.P.A. No.195 of 2022

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made to the judgment rendered by the Hon'ble Apex Court in

the case of Ritesh Tewari and Another v. State of Uttar

Pradesh and Others [(2010) 10 SCC 677] wherein at

paragraph 32 the Hon'ble Apex Court has held as under :-

"32. It is settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironical to permit a person to rely upon a law, in violation of which he has obtained the benefits."

30. In another judgment rendered in State of Orissa

and Another v. Mamata Mohanty [(2011) 3 SCC 436],

similar view has been taken by the Hon'ble Apex Court at

paragraph 37 which is being quoted hereunder :-

"37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin."

31. Similar view has also been taken by the Hon'ble Apex

Court in Upen Chandra Gogoi v. State of Assam and L.P.A. No.195 of 2022

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Others [(1998) 3 SCC 381].

32. Further, the caste certificate being Caste Certificate

No.714 dated 13.06.2016 can also not be said to be proper

document as required by the authority since the requirement

upon the writ petitioner was to produce caste certificate

obtained from his permanent abode. It is not disputed by the

writ petitioner that his permanent abode was Bhagalpur and

not the district of Banka.

33. Further condition was that the said certificate ought to

have been issued on or before 09.07.2012 but the said

certificate was not issued by the competent of the district of

Bhagalpur, rather, it was issued by the Circle Officer, Belhar,

Banka that too was dated 13.06.2016. Therefore, the

aforesaid caste certificate cannot be said to be in consonance

with the instruction of the authority since the same has been

issued by the Circle Officer, Belhar, Banka after 09.07.2012.

34. This Court, on the basis of the aforesaid reason and

coming to the consideration of the case of the writ petitioner

by the disciplinary, is of the view that if the intent of

misrepresentation on the conduct of the writ petitioner the

same will amount to the fraudulent act in view of the

definition of fraud under Section 17 of the Contract Act

wherein the fraud has been defined to be any active

concealment of a fact under the aforesaid provision is

construed to be fraud, for ready reference, Section 17 of the L.P.A. No.195 of 2022

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Contract Act, 1872 is being referred herein which reads

hereunder as :-

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. Explanation.--Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence, is, in itself, equivalent to speech.

35. It is well settled that fraud vitiates the very solemnity of

the act, applying the said principle that the appointment

which has been obtained by the writ petitioner by committing

fraud will also be said to be void ab initio. Reference in this

regard be made to the judgment rendered by Hon'ble Apex

Court in the case of Devendra Kumar v. State of

Uttaranchal and Ors., reported in (2013) 9 SCC 363,

wherein at paragraph-13, 14, 15, 16 and 17, the Hon'ble

Apex Court has observed as follows:-

"13. It is settled proposition of law that where an L.P.A. No.195 of 2022

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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) ".......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", and further held: (SCC p. 327, para 18)."

36. This Court is conscious of the fact regarding power of

judicial review which is to be exercised under Article 226 of L.P.A. No.195 of 2022

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the Constitution of India which is very limited and the same

can only be exercised in a case where the finding recorded by

the enquiry officer is perverse or there is violation of principle

of natural justice or the other guidelines as formulated by the

Hon'ble Apex Court in the judgment rendered in the case of

Union of India vs. P. Gunasekaran reported in AIR 2015 SC

545 wherein at paragraph 13 thereof, the following guidelines

have been laid down for showing interference in the decision

taken by the disciplinary authority which reads hereunder

as:-

"13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of natural justice in conducting the proceedings; d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

L.P.A. No.195 of 2022

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g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

i. the finding of fact is based on no evidence.

Under Article 226/227 of the Constitution of India, the High Court shall not:

(i). re-appreciate the evidence;

(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii). go into the adequacy of the evidence;

(iv). go into the reliability of the evidence;

(v). interfere, if there be some legal evidence on which findings can be based.

(vi). correct the error of fact however grave it may appear to be;

(vii). go into the proportionality of punishment unless it shocks its conscience."

37. The Hon'ble Apex Court in the case of Central

Industrial Security Force and Ors. vs. Abrar Ali reported

in AIR (2017) SC 200, wherein the following guidelines have

been laid down, showing interference by the High Court in

the matter of punishment imposed on conclusion of the

departmental proceeding, the same extract of para 8 thereof,

is referred hereinbelow:

"8. Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the Disciplinary Authority that the Unit had better medical facilities which could have been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamounts to re- appreciation of evidence. It is settled law that re- appreciation of evidence is not permissible in the L.P.A. No.195 of 2022

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exercise of jurisdiction under Article 226 of the Constitution of India. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, reported in (2011) 4 SCC 584 : (AIR 2011 SC 1931, Para 6), this Court held as follows:

"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations"

38. This Court, after having referred the factual aspect and

the settled position of law and coming back to the order

passed by the administrative authority, is of the considered

view that the decision so taken based upon the conclusive

finding in the enquiry report, it cannot be said that the

disciplinary authority has committed any error.

L.P.A. No.195 of 2022

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39. Further, the aforesaid order has been affirmed by the

appellate authority. The learned Single Judge on

consideration of the aforesaid fact, according to our

considered view, is correct in not showing any interference.