Special Appeal dismissed against order dismissing writ petition seeking quashing of dismissal from CISF service for submitting forged Scheduled Tribes caste certificate. Court held fraud vitiates appointment and natural justice foiuly observed.
Special Appeal dismissed; judgment and order dated 16 February 2018 discharged dismissal order.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Court No. - 39
Case :- SPECIAL APPEAL No. - 244 of 2018
Appellant :- Kausar Ali Respondent :- Union Of India And 3 Ors Counsel for Appellant :- Gulab Chandra Counsel for Respondent :- A.S.G.I.,Gaya Prasad Singh
Hon'ble Dilip Gupta,J. Hon'ble Neeraj Tiwari,J.
(Delivered by Hon'ble Neeraj Tiwari,J.)
Present Special Appeal arises out of judgment and order dated 16 February 2018 by which a learned Judge of this Court dismissed the writ petition that was filed for quashing the dismissal order dated 14 April 2012, the appellate order dated 24/25 May 2012 and the revisional order dated 11 August 2012. A further prayer was made to reinstate the petitioner with arrears of salary and to allow him to draw regular salary.
The brief facts of the case are that the petitioner had appeared in recruitment process for the post of Head Constable/Driver in Central Industrial Security Force1 . During that period, he also submitted a caste certificate bearing No. 1438 dated 13 March 1997 issued by Tehsildar, Jamaniya District Ghazipur claiming himself to be belonging to the Scheduled Tribes Community. He also submitted relevant documents such as questionnaire form, medical examination form, character and antecedents verification form etc. claiming himself to be a member of the Scheduled Tribes. He attended all the tests during the course of recruitment held on 19 March 1997 in CPT, Calcutta and was declared successful. He was, however, selected for the post of Head Constable/Driver in CISF against the vacancy of general category candidates and was appointed on 30 August 1997 in CISF as Head Constable/Driver.
Since the appellant had claimed that he belonged to the Scheduled Tribes, his caste certificate was sent to District Magistrate, Ghazipur for 1 CISF
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verification in terms of order issued by the High Court of Delhi in Civil Misc. Writ Petition No. 5976 of 2003 for re-verification of cases of persons who had secured employment in Government of India under the strength of forged/fake Scheduled Tribes Certificates, by letter dated 4 March 2003. This letter was replied by the District Magistrate, Ghazipur on 6 September 2003 that the appellant belongs to Muslim Nut Community which comes under the Backward Class category and not under Scheduled Tribe category. The verification report of Tehsildar, Jamaniya was also forwarded wherein it was categorically stated that the caste certificate produced by the appellant was not issued from the office of Tehsildar, Jamaniya and as such the caste certificate No. 1438 dated 13 March 1997 was a forged and fake caste certificate.
Thereafter, departmental enquiry was initiated against the writ petitioner under Rule 36 of The Central Industrial Security Force Rules, 20012 and a charge-sheet dated 3 January 2012 along with relevant documents was issued to him. The appellant submitted a reply to the charge-sheet and after conducting the enquiry, the Enquiry Officer submitted enquiry report dated 18 February 2012 holding the appellant guilty of submitting forged certificate of Scheduled Tribe and also held that on the basis of that he was recruited in service in the year 1997. Appellant was also provided a copy of departmental enquiry report along with letter dated 12 March 2012 for submitting his objection within 15 days. The appellant requested for grant of 5 days further time to file reply and the same was accepted. Thereafter, he submitted his written objection to the Disciplinary Authority on 31 March 2012 and after considering the same, the Disciplinay Authority dismissed the appellant from service under the provision of Rule 32 Schedule-I of the Rules by order dated 10 April 2012. Against that order, an Appeal was filed before the Deputy Inspector General of Police, CISF. It was dismissed by order dated 24/25 May 2012. Thereafter, he preferred a Revision before the Deputy Inspector General of Police, CISF. The same was also dismissed 2 The Rules
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by order dated 31 April 2012.
Feeling aggrieved by the orders mentioned hereinabove, the appellant-petitioner preferred Writ-A No. 45219 of 2012 which was dismissed by the learned Judge by judgment and order dated 16 February 2018. This Special Appeal has been filed against the said order of the learned Judge.
Learned counsel for the appellant has argued that while dismissing the writ petition, the learned Judge has not considered that Rule 36(15) of the Rules has not been followed as the Tehsildar, Jamaniya did not call for oral examination and enquiry proceedings were conducted only on the basis of the report obtained from the office of the District Magistrate. In verification letter of the District Magistrate, the name of father of the appellant is not correctly written. He has also submitted that no benefit of caste certificate was given to him as he was appointed as a candidate of general category. Thus, he was not benefited by the caste certificate which is in dispute and on the basis of which his service was terminated. Learned counsel has further argued that order has been passed in violation of the principles of natural justice and appropriate opportunity of defence has not been given to him. In this connection, learned counsel placed reliance on a judgment of the Supreme Court in State of Uttar Pradesh Vs. Saroj Kumar Sinha3 .
Refuting the argument of learned counsel for the appellant, Sri S.P. Singh, learned Additional Solicitor General for the respondents assisted by Sri G.P. Singh submitted that Sub-Rule (15) of Rule 36 of the Rules was followed and full opportunity of hearing as well as examination of witnesses was provided. He has further stated that the appellant had taken benefit of Scheduled Tribe certificate and on the basis of that, he was granted promotion to the next higher post. The appellant was examined by the Presenting Officer and further he was given full opporutnity for cross-examination which was also availed by him but he
3 (2010) 2 SCC 772
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did not submit any document nor any witness was examined. He was also given an offer to engage any person of CISF to present his case, but he decided to argue his case himself. It is also his submission that appointment obtained by fraud is a nullity in the eye of law and cannot be sustained.
We have considered the rival submissions.
The first submission of learned counsel for the appellant is that while conducting the enquiry, Rule 36(15) of the Rules has not been followed and the Tehsildar, Jamaniya was not produced as a witness. Rule 36(15) Rules is as follows:-
“On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the Disciplinary Authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the enrolled member of the Force. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross examined, but not on any new matter, without the leave of the Inquiring Authority. The Inquiring Authority may also put such questions to the witnesses as it thinks fit.]”
The learned Judge has repelled this contention and the observations are:-
“On perusal of the enquiry report I find that all the relevant documents were supplied to the petitioner. He has given a detailed reply and every aspect of the reply including contentions that have been raised before this Court that the father's name is different and that he has not taken any benefit of the caste certificate have been considered. The reply submitted in response to the charge-sheet has not been annexed with the writ petition. However, the enquiry report clearly reflects that no such objection for producing the Tehsildar or any other district authority was ever made before the enquiry officer. On the contrary, perusal of paragraph 3 at page 59 clearly indicates that the enquiry was conducted strictly in accordance with Rule 36 of the CISF Rules, 2001 and the petitioner was given full opportunity of hearing for producing any evidence and also to cross examine any witness. It further reflects that he has cross-examined the witnesses produced by the department but he has not produced any evidence in his defence.
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The record reflects that the petitioner belongs to a member of Muslim Nat community which comes under the category of backward class and not scheduled tribe. Even if the father's name is mentioned as "Mohd. Ismail" in the report of verification of caste certificate given by the District Magistrate, Ghazipur whereas the correct name of father of the petitioner being "Israil" it makes no difference inasmuch as caste certificate no. 1438 dated 13.3.1997 submitted by the petitioner before the authorities was found to be forged as the same was never issued by the Tehsildar. I do not find any reason to disagree with the observation that it was purely a typing mistake particularly in view of the fact that other facts were duly verified by the district authorities to the extent that the petitioner belongs to Muslim Nat community, which in fact is a backward class category and not scheduled tribe. The address and other identity of the petitioner was also verified.”
The department had relied upon the letter. A copy of this letter was provided to the petitioner. The petitioner was given opportunity to call any witness and submit documents. The judgment in Saroj Kumar Sinha , therefore, may not help the writ petitioner.
Further, it is admitted case of the appellant that he had submitted Caste Certificate No. 1438 dated 13 March 1997 claiming himself to be a member of Scheduled Tribes candidate. As per the report of District Magistrate dated 6 September 2003, he does not belong to the Schedule Tribes category but he belongs to other backward class category and that the said caste certificate had not been issued.
Learned counsel for the appellant also submitted that he had not taken any benefit of the caste certificate as he was appointed under the general category. In paragraph 23 of the counter affidavit, it has been specifically stated that he was promoted to the next higher rank by giving him the benefit of the Scheduled Tribes category. In paragraph 14 of the rejoinder affidavit, there is no specific denial of the fact that he had not taken promotion by taking the benefit of Schedule Tribes certificate. Even learned counsel for the appellant accepted that the appellant had taken the benefit of Scheduled Tribes certificate for promotion. Thus, though the appellant had not taken the benefit of the certificate at the time of appointment but was granted promotion on the basis of that
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Scheduled Tribes certificate. Therefore, it cannot be accepted that he has not taken any benefit of the caste certificate.
It is also the case of the appellant that order has been passed in violation of principles of natural justice. This submission cannot be accepted . He was issued a charge-sheet, to which he submitted a reply . He was orally examined by the Presenting Officer and given an opportunity to examine or cross-examine. Not only this, he was also given an opportunity to engage some Officer of the CISF to present his case but he himself appeared. After completion of enquiry, he was also given a copy of the enquiry report along with letter dated 10 March 2012. He submitted a reply to the same by letter dated 31 March 2012.
The scope of interference of a Court is very limited in disciplinary proceeding. The learned Judge has rightly not interfered with the findings recorded in the orders impugned in the writ petition as it could not be substantiated that they were based on no evidence.
This apart, fraud vitiates everything. In the case of United India Insurance Company Ltd. V. B. Rajendra Singh and others4 , considering the consequences of fraud, the 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 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"(Lazarus Estate Ltd. V. Beasley 1956(1)QB 702).”
In the case of Jainendra Singh Vs. State of U.P.5 , the Supreme Court considered the effect of appointment obtained by fraud and held as under :
"29.1 Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer
4 JT 2000 (3) SC 151
5 (2012) 8 SCC 748
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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.
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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."
Similar principles with regard to fraud have been laid down by the Supreme Court in The State of Andhra Pradesh & Anr. v. T. Suryachandra Rao6 , A.V. Papaya Sastry & Ors. v. Government of A.P. & Ors.7 , Ganapatbhai Mahijibhai Solanki v. State of Gujarat & Ors.8 , Commnr. Of Customs (Preventive) v. Aafloat Textiles (I) Pvt. Ltd. And Ors.9 , and K.D. Sharma v. Steel Authority of India Ltd. & Ors10 .
In the present case, appellant produced caste certificate No. 1438 claiming himself to be a member of Scheduled Tribes which was ultimately found to be forged. Therefore, we see no good reason to interfere with the judgment and order of the learned Judge.
The Special Appeal is, accordingly, dismissed.
Order Date :- 5.4.2018 sartaj
(Dilip Gupta,J.)
(Neeraj Tiwari,J.)
6 JT 2005 (6) SC 391
7 JT 2007 (4) SC 186
8 JT 2008 (3) SC 452
9 JT 2009 (5) SC 278
10 JT 2008 (8) SC 57
3 issues framed by the court
Whether the departmental enquiry proceedings were conducted in violation of Rule 36(15) of the CISF Rules 2001 and principles of natural justice.
Whether an appointment obtained on the basis of a forged caste certificate is a nullity and can be terminated without inquiry.
Whether the appellant took benefit of the forged Scheduled Tribes certificate for promotion.
Colour shows how this judgement treated each authority
State of Uttar Pradesh Vs. Saroj Kumar SinhaReferred¶16
(2010) 2 SCC 772 · Who else cites this
United India Insurance Company Ltd. V. B. Rajendra Singh and othersExplained¶35
United India Insurance Company Ltd. V. B. Rajendra Singh and others
Jainendra Singh Vs. State of U.P.Explained¶37
(2012) 8 SCC 748 · Who else cites this
The State of Andhra Pradesh & Anr. v. T. Suryachandra RaoReferred¶53
6 JT 2005 (6) SC 391 · Who else cites this
A.V. Papaya Sastry & Ors. v. Government of A.P. & Ors.Referred¶53
7 JT 2007 (4) SC 186 · Who else cites this
Ganapatbhai Mahijibhai Solanki v. State of Gujarat & Ors.Referred¶53
8 JT 2008 (3) SC 452 · Who else cites this
Commnr. Of Customs (Preventive) v. Aafloat Textiles (I) Pvt. Ltd. And Ors.Referred¶53
9 JT 2009 (5) SC 278 · Who else cites this
K.D. Sharma v. Steel Authority of India Ltd. & OrsReferred¶53
10 JT 2008 (8) SC 57 · Who else cites this
2 provisions across 1 enactments
Kausar Ali
Union Of India
Ors.
Dilip Gupta
Neeraj Tiwari
As recorded by the court registry
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