1. Heard Sri Siddharth Khare, learned counsel for the petitioner and Ms. Suman Sirohi, learned Standing Counsel for respondents.
2. On 14.2.2014 Sri Khare was heard at length and was directed to file a supplementary affidavit of the petitioner annexing therewith copy of the receipt of deposit of fees for appearance in the examination, admit card and other documents to demonstrate that he appeared as a private candidate in Adhikari Pariksha of 1997, alleged to have been held by Gurukul Vishwavidyalay, Vrindavan, Mathura.
3. Again on 20.2.2014 writ petition was heard at length and the following order was passed :
"Heard Sri Siddharth Khare, learned counsel for the petitioner and Ms. Suman Sirohi, learned Standing Counsel appearing for the respondents.
Pursuant to the order of this Court dated 14.2.2014, learned Standing Counsel has produced the original records. From perusal of the record, it is found that the mark sheet as well as certificate of Adhikari Pariksha as submitted by the petitioner before the concerned authorities of the year 1997 was sent for verification. On the basis of this certificate of Adhikari Pariksha, 1997 shown to be issued by Gurukul Vishwa Vidyalaya, Brindavan, Mathura, the petitioner has shown himself to possess minimum educational qualification as mentioned in the advertisement and on that basis obtained the service. A letter for verification of the aforesaid certificate and the mark sheet was sent by the respondent department to the Gurukul Vishwa Vidyalaya, Brindavan, Mathura. In response to it, the Vice Chancellor of Gurukul Vishwa Vidyalaya, Brindavan, Mathura sent the letter dated 22.5.2013 followed by another letter dated 23.10.2013 clearly stating therein that the mark sheet and Adhikari Pariksha Certificate of 1997 as submitted by the petitioner is not correct and totally forged papers. The original records were also shown to Sri Siddharth Khare, learned counsel for the petitioner and thereafter it has been returned to the learned Standing Counsel. Ms. Suman Sirohi further submits that in the impugned order the year of certificate was inadvertently typed as 2007 in place of 1997 and consequently, a correction order dated 8.1.2014 was passed by the Deputy Commissioner, Mirzapur and thus the typing mistake in the impugned order dated 26.12.2013 has been corrected.
Sri Siddharth Khare has filed today a supplementary affidavit of the petitioner in which in paragraph 3 and 4, it is stated that the petitioner is not in a position to file any fee slip and admit card with regard to his Adhikari Pariksha passed from Gurukul Vishwa Vidyalaya, Brindavan, Mathura because it has been misplaced. In pargraph 5 of the affidavit, it is stated that the petitioner has the original mark sheet and certificate of Adhikari Pariksha of the year 1997 passed by him from Gurukul Vishwa Vidyalaya, Brindavan, Mathura, which shall be placed before this Court at the time of argument. In view of the specific averment in paragraph 5 of the aforesaid supplementary affidavit, Sri Siddharth Khare produced the alleged original mark sheet of the petitioner of Adhikari Pariksha, 1997 bearing Roll No. 19861 and Serial No. 15419 and the date of issue as 18.6.1997. He also produced the alleged original certificate of the petitioner of Adhikari Pariksha, 1997 bearing entry "certificate no. 1288 dated 30.7.1997". On the back side of this certificate, there is a hand written certification that entire entries of this certificate are correct and according to college records. This certification has been done on 25.7.1997. Prima facie, this certificate itself appears to be forged inasmuch as, in the certificate, the entry dated 30.7.1997, could not have been certified on 25.7.1997 coupled with the fact that the certificate as submitted by the petitioner to obtain the employment was communicated to be forged by the Vice Chancellor of the concerned Vishwa Vidyalaya i.e. Gurukul Vishwa Vidyalaya, Brindavan, Mathura.
Sri Siddharth Khare seeks time to file a supplementary affidavit so as to challenge the correction order dated 8.1.2014, the copy of which has been given by learned Standing Counsel to him in Court during the course of argument.
As prayed, two days' time is granted to the petitioner to file supplementary affidavit. In the supplementary affidavit, the petitioner shall explain the entries of the certificate as noted above. He shall also annex with the supplementary affidavit the copy of the mark sheet as well as the front and back page of his certificate Adhikari Pariksha, 1997. The original certificate and the mark sheet is being returned to Sri Khare with direction that the same shall be produced on the next date.
As prayed, put up on 24.2.2014 in the additional cause list to enable the petitioner to file a supplementary affidavit containing the details as observed above. "
4. Today Sri Siddharth Khare has filed second supplementary affidavit dated 24.2.2014 of the petitioner, which is taken on record. It is stated in paragraph 8 of this supplementary affidavit as under :
"8. That only because of the aforesaid typographical mistake/inadvertent error at the part of the issuing authority negative opinion with regard to the genuinity of the High school certificate may not be formed."
5. Sri Siddharth Khare submits as under :
(i) The petitioner is a regularly selected candidate and was appointed in accordance with law and was appointed as Excise Constable vide order No. 2259 dated 25.1.2011 issued by the Deputy Excise Commissioner, Mirzapur.
(ii) The petitioner has been removed from service without observing the procedure established by law.
(iii) The mark sheet and the certificate of Adhikari Pariksha of 1997 of Gurukul Vishwavidyalaya, Brindavan, Mathura possessed by the petitioner are wholly valid. The verification report received from the Vice Chancellor of Gurukul Vishwavidyalaya, Brindavan, Mathura does not establish that the mark sheet and the certificate of the petitioner are forged. In fact, the said Vice Chancellor does not have the records and, therefore, in the absence of records, he could not have stated that the mark sheet and the certificate possessed by the petitioner are forged.
(iv) On similar set of facts in Writ (A) No. 45819 of 2013 and Writ (A) No. 54821 of 2013 were dismissed by two separate orders dated 3.10.2013. Against these two orders, Special Appeal No. 1632 of 2013 and Special Appeal No. 1634 of 2013 respectively were preferred by the petitioners of those writ petitions in which the Division Bench of this Court passed an interim order dated 30.10.2013 as under :
"Argument is that the issue is squarely covered by the recent Full Bench Judgment of this Court in the case of Dhanpal and Others Vs. State of U.P. and Others, [2013 (8) ADJ 723 (FB)].
It is submitted that right from 2010, the appellant is working and it is a case of cancellation of appointment and that too without a proper and reasonable enquiry/opportunity.
It is further submitted that it is not a case of any concealment or filing of the incorrect documents which mislead the respondents in appointing the appellant.
In view of the aforesaid matter, there should be a response from the respondents.
List the matter after six weeks.
On the facts, this Court directs that till the next date of listing, operation of the order impugned dated 16.09.2013 in the writ petition shall remain stayed. "
6. Sri Khare, therefore, submits that in view of the interim order passed in Special Appeal No. 1632 of 2013, the petitioner being a similarly situated person is entitled for similar interim relief.
7. Learned Standing Counsel has again produced today the original records and this Court perused the same. Referring to the application form of the petitioner, she submits that a declaration was made by the petitioner in the application form that if any information given in the application form is found to be wrong or untrue, he be dismissed from service even after selection. In the said application form, the petitioner has given details of his educational qualification and annexed the high school mark sheet and certificate, which have been found to be forged on verification from the Vice Chancellor of Gurukul Vishwavidyalaya, Brindavan, Mathura. She further submits that once the very basis of obtaining the employment has been found to be forged, the dismissal of the petitioner from service is wholly justified. She submits that the original certificate produced by the petitioner before this Court has also been found to be forged as noted in the above quoted order dated 20.2.2014. She submits that the interim orders are not precedents and, therefore, this Court is not bound to follow the interim order passed in Special Appeal No. 1632 of 2013. She submits that it appears that the facts of the csae in the aforesaid special appeal appears to be different inasmuch as, the interim order was granted in the said special appeal in view of the law laid down by the Full Bench of this Court in the case of Dhanpal and others Vs. State of U.P. reported in 2013 (8) ADJ 723 (FB) in which it has been held that Adhikari Pariksha up to the year, 2008 is equivalent to high school. She submits that in the case of Dhanpal (supra), the Full Bench of this Court has not held that even the forged certificate of Adhikari Pariksha up to the year 2008 shall be treated to be valid.
Findings
8. I have carefully considered the submissions of learned counsel for the parties. In the order dated 20.2.2014 as reproduced above, this Court has prima facie found the certificate of the petitioner to be forged and, therefore, granted him time to explain. In paragraph 8 of the second supplementary affidavit filed today, the petitioner has stated that the aforesaid lacuna is a typographical and inadvertent error on the part of the issuing authority. This paragraph has been sworn on personal knowledge. It has not been explained that how the petitioner has personal knowledge of alleged typographical mistake said to have been committed by the alleged officers of the University. Thus the averments of para 8 of the second supplementary affidavit is incorrect.
9. Sri Siddharth Khare has invited the attention of the Court to the contents of paragraph 9 of the second supplementary affidavit filed today, in which it is stated that the certificate of the petitioner is genuine as it has been certified by the Ex-Registrar of the Gurukul Vishwavidyalaya, Brindavan, Mathura vide letter dated 22.2.2014. This letter filed as Annexure No.4 to the second supplementary affidavit is reproduced below xq:dqy fo'ofo}|ky;] o`Unkou vk;Z izfrfuf/k lHkk m0 iz0 y[kuÅ }kjk lapkfyr GURUKUL VISHWAVIDYALAYA VRINDABAN-281121 (INDIA) dzekad& G.V.V./718 fnukad& 22.2.2014 izs"kd] iwoZ dqylfpo xq:dqy fo'ofo|ky;
o`Unkou] eFkqjkA lsok esa] eq'rkd mYyk iq= Jh vter mYyk fNiVgjh ckankA fo"k; % vad i=ksa ds lR;kiu ds lEcU/k esa %& izekf.kr fd;k tkrk gS fd eq'rkd mYyk iq= Jh vtey mYyk us vf/kdkjh ijh{kk o"kZ 1997 vuqdzekad 19861 us xq:dqy fo'ofo|ky; o`Unkou ls izFke Js.kh esa mRrh.kZ fd;k gSA dk;kZy; vfHkys[kksa ls feyku djus ij lgh ik;k x;kA Hkonh;ß
10. Perusal of the aforesaid letter shows that it bears dispatch no. GVV/718 dated 22.2.2014 and has been issued by some one as Ex-Registrar . The name of the person who issued the certificate neither appears in the certificate nor has been disclosed in the supplementary affidavit. Even if it is assumed for a moment that this certificate has been issued by some Ex-Registrar yet it is surprising that how and under what authority an Ex-Registrar can issue such a certificate. Apart from this on the left hand side at the top of this letter, monogram of the University is printed while below the signature a stamp bearing seal of the State Government containing name of the University has been affixed. These circumstances are clear indications of the fraudulent conduct of the petitioner and also of the ingenuineness of this paper. The Vice Chancellor of the Gurukul Vishwavidyalay, Vrindavan, Mathura, on being asked by the respondent authorities to verify the mark sheet and the certificate of the petitioner, communicated vide letter dated 22.5.2013 followed by letter dated 23.10.2013 that the said mark sheet and certificate of adhikari Pariksha 1997 produced by the petitioner are forged. Thus, the mark sheet and certificate of Adhikari Pariksha submitted by the petitioner to obtain employment have been correctly held by the respondents to be forged and fabricated.
11. So far as the contention of Sri Siddharth Khare that the petitioner could have been removed from service, only after initiating the disciplinary proceeding is concerned, this Court is of the view that once the appointment has been obtained on the basis of forged certificates, the impugned order cannot be held to be illegal.
12. The jurisdiction under Article 226 of the Constitution of India is an extraordinary and discretionary jurisdiction, which cannot be exercised in the facts and circumstances of the case.
13. In the case of United India Insurance Company Ltd. V. B.Rajendra Singh and others, JT 2000(3)SC.151, considering the fact of fraud, Hon'ble Supreme Court held in paragraph 3 as under :
"Fraud and justice never dwell together". (Frans et jus nunquam cohabitant) is a pristine maxim which has never lost its temper overall these centuries. Lord Denning observed in a language without equivocation that "no judegment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything"(Lazarus Estate Ltd. V. Beasley 1956(1)QB 702).
(Emphasis supplied by me)
14. In the case of Vice Chairman, Kendriya Vidyalaya Sangathan and Another Vs. Girdhari Lal Yadav, 2004 (6) SCC 325, Hon'ble Supreme Court considered the applicability of principles of natural justice in cases involving fraud and held in paragraphs 12 and 13 as under :
"12. Furthermore, the respondent herein has been found guilty of an act of fraud. In opinion, no further opportunity of hearing is necessary to be afforded to him. It is not necessary to dwell into the matter any further as recently in the case of Ram chandra Singh v. Savitri devi this Court has noticed : (SCC p. 327 paras 15-19) "15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together.
16. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
18.A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad."
19. In an action of deceit the plaintiff must prove actual fraud. Fraud is proved when it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false.
A false statement, made through carelessness and without reasonable ground for believing it to be true, may be evidence of fraud but does not necessarily amount to fraud. Such a statement, if made in the honest belief that it is true, is not fraudulent and does not render the person make it liable to an action of deceit.
13. In view of our findings aforementioned that the respondent was guilty of an act of fraud, in our opinion, the Central Administrative tribunal as also the High court committed a manifest error in setting aside the order of the appointing authority as also the Appellate Authority."
(Emphasis supplied by me)
15. In the case of Ram Chandra Singh Vs. Savitri Devi and others, 2003(8) SCC 319, Hon'ble Supreme Court held in paragraphs 15, 16, 17, 18, 25 and 37 as under :
"15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together.
16. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
18.A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.
25. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res-judicata.
37. It will bear repetition to state that any order obtained by practising fraud on court is also non-est in the eyes of law."
(Emphasis supplied by me)
16. In the case of S.P. ChengalVaraya Naidu (dead) by L.Rs Vs. Jagannath (dead) by L.Rs and others, AIR 1994 SC 853, the Hon'ble Supreme Court held in para 7 as under :
"7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."
(Emphasis supplied by me)
17. In the case of Jainendra Singh Vs. State of U.P., 2012 (8) SCC 748, Hon'ble Supreme Court considered the fact of appointment obtained by fraud and held in para 29.1 to 29.10 as under :
"29.1 Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer.
29.2 Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if find not desirable to appoint a person to a disciplined force can it be said to be unwarranted.
29.3 When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry.
29.4 A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services.
29.5 Purpose of calling for information regarding involvement in any criminal case or detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have clear bearing on the character and antecedents of the candidate in relation to his continuity in service.
29.6 The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service.
29.7 The standard expected of a person intended to serve in uniformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted.
29.8 An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, conviction or detention, even if ultimately he was acquitted of the said case, inasmuch as such a situation would make a person undesirable or unsuitable for the post.
29.9 An employee in the uniformed service pre-supposes a higher level of integrity as such a person is expected to uphold the law and on the contrary such a service born in deceit and subterfuge cannot be tolerated.
29.10The authorities entrusted with the responsibility of appointing Constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a Constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of Constable."
(Emphasis supplied by me)
18. In the case of Ram Chandra Singh Vs. Savitri Devi and others, JT 2005 (11) SC 439, Hon'ble Supreme Court has elaborately considered the meaning of the word fraud and its effects and held in para 15 to 34 as under :
"15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together.
16. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.
19. In Derry v. Peek, (1889) 14 AC 337, if was held:
In an 'action of deceit the plaintiff must prove actual fraud. Fraud is proved when it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false.
A false statement, made through carelessness and without reasonable ground for believing it to be true, may be evidence of fraud but does not necessarily amount to fraud. Such a statement, if made in the honest belief that it is true, is not fraudulent and does not render the person make it liable to an action of deceit.
20. In Kerr on Fraud and Mistake at page 23, it is stated:
"The true and only sound principle to be derived from the cases represented by Slim v. Croucher is this that a representation is fraudulent not only when the person making it knows it to be false, but also when, as Jessel, M.R., pointed out, he ought to have known, or must be taken to have known, that it was false. This is a sound and intelligible principle, and is, moreover, not inconsistent with Derry v. Peek, A false statement which a person ought to have known was false, and which he must therefore be taken to have known was false, cannot be said to be honestly believed in. "A consideration of the grounds of belief", said Lord Herschell, "is no doubt an important aid in ascertaining whether the belief was really entertained. A man's mere assertion that he believed the statement he made to be true is not accepted as conclusive proof that he did so."
21. In Bigelow on Fraudulent Conveyances at page 1, it is stated :
"If on the facts the average man would have intended wrong, that is enough."
22. It was further opined:
"This conception of fraud (and since it is not the writer's, he may speak of it without diffidence), steadily kept in view, will render the administration of the law less difficult, or rather will make its administration more effective. Further, not to enlarge upon the last matter, it will do away with much of he prevalent confusion in regard to 'moral' fraud, a confusion which, in addition to other things, often causes lawyers to take refuge behind such convenient and indeed useful but often obscure language as 'fraud upon the law'. What is fraud upon the law? Fraud can be committed only against a being capable of rights, and 'fraud, upon the law' darkens counsel. What is really aimed at in most cases by this obscure contrast between moral fraud and fraud upon the law, is a contrast between fraud in the individual's intention to commit the wrong and fraud as seen in the obvious tendency of the act in question."
23. Recently this Court by an order dated 3^rd September, 2003 in Ram Preeti Yadav v. U.P. Board of High School & Intermediate Education and Ors. reported in JT 2003 (Supp. 1) SC 25 held:
"Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by words or letter. Although negligence is not fraud but it can be evidence on fraud. (See Derry v. Peek (1889) 14 AC 337).In Lazarus Estate v. Berly [(1956) 1 All ER 341] the Court of Appeal stated the law thus:
"I cannot accede to this argument for a moment "no Court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything". The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever."
In S.P. Chengalyaraya Naidu v. Jagannath [(1994) 1 SCC 1] this Court stated that fraud avoids all judicial acts, ecclesiastical or temporal."
24. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would, render the transaction void ab initio. Fraud and deception are synonymous.
25. In Arlidge & Parry on Fraud, it is stated at page 21:
"Indeed, the word sometimes appears to be virtually synonymous with "deception", as in the offence (now repealed.) of obtaining credit by fraud. It is true that in this context "fraud" included certain kinds of conduct which did not amount to false pretences, since the definition referred to an obtaining of credit "under false pretences, or by means of any other fraud". In Jones, for example, a man who ordered a meal without pointing out that he had no money was held to be guilty of obtaining credit by fraud but not of obtaining the meal by false pretences: his conduct, though fraudulent, did not amount to a false pretence. Similarly it has been suggested that a charge of conspiracy to defraud may be used where a "false front" has been presented to the public (e.g. a business appears to be reputable and creditworthy when in fact it is neither) but there has been nothing so concrete as a false pretence. However, the concept of deception (as defined in the Theft Act 1968) is broader than that of a false pretence in that (inter alia) it includes a misrepresentation as to the defendant's intentions; both Jones and the "false front" could now be treated as cases of obtaining property by deception."
26. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res-judicata.
27. In Smt. Shrisht Dhawan v. Shaw Brothers , it has been held that:
"Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct,"
28. In S.P. Chengalvaraya Naidu v. Jagannath [(1994) 1 SCC 1] this Court in no uncertain terms observed:
"...The principle of "finality of litigation" cannot be passed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not process of the Court is being abused. Property-grabbers, tax-evaders, bank-loan dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation... A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage... A litigant, who approaches the Court, is bound to produce all the documents executed by him, which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party."
29. In Indian Bank v. Satyam Fibres (India) Pvt. Ltd. , this Court after referring to Lazarus Estates (supra) and other cases observed that 'since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court it also amounts to an abuse of the process of the Court, that the Courts have inherent power to set aside an order obtained, by practising fraud upon the Court, and that where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order".
30. It was further held:
"The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud" on Court, In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers, which are resident in all Courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behavior. This power is necessary for the orderly administration of the Court's business."
31. In Chittaranjan Das v. Durgapore Project Limited and Ors. , It has been held:
"Suppression of a material document which affects the condition of service of the petitioner, would amount to fraud in such matters. Even the principles of natural justice are not required to be complied within such a situation.
It is now well known that a fraud vitiates all solemn acts. Thus, even if the date of birth of the petitioner had been recorded in the service returns on the basis of the certificate produced by the petitioner, the same is not sacrosanct nor the respondent company would be bound thereby."
32. Keeping in view the aforementioned principles, the questions raised in these appeals are required to be considered. The High Court observed that the application of intervention filed by the appellant purported to be under Order XXVI, Rules 13 and 14(2) and Order XX, Rule 18 was not maintainable as they do not confer any power to court for setting aside a preliminary decree on the ground that it was obtained by practising fraud. But once the principles aforementioned are to be given effect to, indisputably the court must be held to have inherent jurisdiction in relation thereto.
33. In Manohar Lal Chopra v. Raj Bahadur Rao Raja Seth Hiralal , the law is stated in the following terms:
"The Code of Civil Procedure is undoubtedly not exhaustive: it does not lay down rules for guidance in respect of all situations nor does it seek to provide rules for decision of all conceivable cases which may arise. The civil courts are authorized" to pass such orders as may be necessary for the ends of justice, or to prevent abuse of the process of court, but where an express provision is made to meet a particular situation the Code must be observed, and departure therefrom is not permissible."
34.In Sharda v. Dharmpal , a three-Judge Bench, of which both of us are parties, held that directing a person to undergo a medical test by a matrimonial court is implicit stating:"
(Emphasis supplied by me)
19. Similar principles with regard to fraud have been laid down by Hon'ble Supreme Court in the case of JT 2005(6) SC 391, para 7 to 15, JT 2007(4) SC 186, para 19 to 39, JT 2009(9) SC 365, para 22 and 23, JT 2008 (3) SC 452, para 12.3 to 15, JT 2009(5) SC 278, para 13 to 18 and 28 and JT 2008(8) SC 57.
20. Applying the principles laid down in the aforementioned judgments of Hon'ble Supreme Court on the facts of the present case, this Court finds that since the petitioner procured the appointment on the basis of forged mark sheet and certificate, it amounted to misrepresentation and fraud on the employer. In the circumstances, there would be no equity in favour of the petitioner or any estoppel against the employer while restoring to termination without holding any enquiry. The petitioner suppressed material information and gave false information and, therefore, he cannot claim any right to continue in service. The respondent employer has rightly exercised the discretion to terminate the services of the petitioner.
21. In view of the above, I find no merit in the writ petition. The writ petition fails and is hereby dismissed with cost.
Order Date :- 25.2.2014 Ashish Pd.