Vinod Kumar vs Ajmer Vidhyut Vitran Nigam Limited and Others

Anupinder Singh Grewal, J.—The instant Special Appeal is directed against the order dated 26.09.2014 passed by the learned Single Judge whereby writ petition seeking quashing of order terminating services of the appellant-petitioner has been dismissed.

The appellant-petitioner applied for appointment to the post of Technical Helper in response to applications invited by the respondent-Ajmer Vidhyut Vitran Nigam Limited. He was selected and appointed to the post of Technical Helper vide order dated 08.03.2013 and consequently posted as probationer trainee with the office of Assistant Engineer, Udaipur District on fixed remuneration vide order dated 03.04.2013. The appellant-petitioner was served with a show cause notice dated 06.12.2013 as to why his services be not terminated as he has concealed the factum of his involvement and conviction in criminal case at the time of joining service. The appellant-petitioner was heard in person on 25.07.2014 and vide order dated 10.09.2014 his services were terminated.

We have heard learned counsel for the parties and perused the record.

There is no force in the submission of learned counsel for the appellant that as the petitioner had only been punished with fine there is no suppression of material fact specially when the matter related to Motor Vehicles Act and FIR was registered only as formality to enable the parties to claim compensation.

It is inconsequential that the appellant-petitioner had only been fined. The fact remains that a criminal case was pending against him wherein he was subsequently convicted. This material information had been intentionally suppressed by the appellant-petitioner at the time of joining service.

A perusal of the letter of appointment of the appellant-petitioner indicates that as per condition No. 16 thereof the antecedents of the petitioner were to be verified by Police and in case of doubtful or unsatisfactory character, his services will be liable to be terminated without giving notice and he will not be entitled to any compensation. It would be pertinent to quote clause 12 of the Call Letter for verification of documents issued by the respondent department, which reads as under:

"12. An affidavit on non-judicial stamp paper worth Rs. 10/- duly attested by Notary Public that no criminal case is pending against you in any Court and you have not been convicted in any criminal case. If you have been convicted or any criminal case is pending against you, the detail should be mentioned in the affidavit." 7. The appellant-petitioner submitted his affidavit dated 08.02.2013 wherein he denied his involvement in any criminal case. He had further stated that no FIR was ever registered against him in any police station.

The matter came to light when during character verification, the Superintendent of Police, Udaipur vide letter dated 15.05.2013 informed the respondents that in a Case No. 70/2010 under sec. 279, 379, 338 IPC the appellant-petitioner has been convicted. A perusal of order dated 18.02.2013 passed by the Judicial Magistrate, Udaipur North reveals that the appellant-petitioner was convicted under secs. 279, 379, 338 IPC read with secs. 134, 187 of the Motor Vehicles Act and a fine of Rs. 1600/- was imposed upon him. It was also ordered that in case of default in payment of fine, he will have to undergo 7 days'' simple imprisonment.

Learned counsel for the appellant-petitioner has relied upon judgment reported as Shiv Prasad Meena Vs. Bharat Sanchar Nigam Limited, in support of his submission that not mentioning the factum of conviction will not amount to suppression of material facts so as to warrant termination of the services of appellant-petitioner. Reliance of the learned counsel on this judgment is misplaced as the facts of the case are clearly distinguishable from the instant case. In Shiv Prasad''s case (supra) the petitioner therein was facing trial in two cases. In one of them he had been acquitted while in the second case the guilt of the petitioner was established and he was given benefit of probation under the Probation of Offenders Act. He had, in fact, duly mentioned the factum of pendency of both the cases but against column seeking information about ''conviction'', he stated "NO". This Court held that as he has been given benefit of probation it can be accepted that he was under the impression that he had been acquitted as he had duly mentioned the factum of pendency of this case.

However, in the case at hand not only has the petitioner not disclosed about his conviction but has also stated in his affidavit that no criminal case was ever registered against him.

It is, thus, patent that the appellant-petitioner had suppressed material information regarding his involvement in a criminal case. At the time of submission of his affidavit on 08.2.2013 the criminal case was pending wherein he was convicted on 18.02.2013. He had withheld this information when he joined service on 08.03.2013.

It is well settled that if an employee obtains appointment by suppression of material fact or withholding information about his antecedents including registration of a criminal case he is liable to be terminated from the service. We draw support from judgment of Hon''ble Supreme Court reported as Devendra Kumar Vs. State of Uttaranchal and Others, wherein it has been held:

"12. So far as the issue of obtaining the appointment by misrepresentation is concerned, it is no more res integra. The question is not whether the applicant is suitable for the post. The pendency of a criminal case/proceeding is different from suppressing the information of such pendency. The case pending against a person might not involve moral turpitude but suppressing of this information itself amounts to moral turpitude. In fact, the information sought by the employer if not disclosed as required, would definitely amount to suppression of material information. In that eventuality, the service becomes liable to be terminated, even if there had been no further trial or the person concerned stood acquitted/discharged.

It is a settled proposition of law that where an applicant gets an office by misrepresenting the facts or by playing fraud upon the competent authority, such an order cannot be sustained in the eyes of law. "Fraud avoids all judicial acts, ecclesiastical or temporal." (Vide: S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, . In Lazarus Estate Ltd. v. Besalay, 1956 All E.R. 349, 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 Andhra Pradesh State Financial Corporation Vs. M/s. GAR Re-Rolling Mills and another, ; and State of Maharashtra and Others 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."

In Smt. Shrisht Dhawan Vs. M/s. Shaw Brothers, , it has been held as under: (SCC p.533, para 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. Vs. Rajendra Singh and Others, , 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 Vs. State of Haryana and Others, .

In Ram Chandra Singh Vs. Savitri Devi and Others, , this Court held that "misrepresentation itself amounts to fraud", and further held: (SCC p.327, para 18)

"18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully 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." The said judgment was reconsidered and approved by this Court in Vice-Chairman, Kendriya Vidyalaya Sangathan and Anr. v. Girdharilal Yadav, (2004) 6 SCC 325).

The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit those persons who have frauded or misrepresented themselves. In such circumstances the Court should not perpetuate the fraud by entertaining petitions on their behalf. In Union of India and others Vs. M. Bhaskaran, G. Radhakrishnan and C. Devan, , this Court, after placing reliance upon and approving its earlier judgment in District Collector and Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and Another Vs. M. Tripura Sundari Devi, , observed as under: (M. Bhaskaran case, SCC p.104, para 6)

"If by committing fraud any employment is obtained, the same cannot be permitted to be countenanced by a Court of Law as the employment secured by fraud renders it voidable at the option of the employer." 19. In Delhi Administration through its Chief Secretary and Others Vs. Sushil Kumar, , this Court examined the similar case where the appointment was refused on the post of Police Constable and the Court observed as under: (SCC p.606, para 3)

"3....It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The Tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offence, the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequence. The consideration relevant to the case is of the antecedents of the candidate. Appointing authority, therefore, has rightly focussed this aspect and found it not desirable to appoint him to the service."

(Emphasis added)

In Kendriya Vidyalaya Sangathan and Others Vs. Ram Ratan Yadav, ; and A.P. Public Service Commission Vs. Koneti Venkateswarulu and Others, , this Court examined a similar case, wherein, employment had been obtained by suppressing a material fact at the time of appointment. The Court rejected the plea taken by the employee that the Form was printed in English and he did not know the language, and therefore, could not understand what information was sought. This Court held that as he did not furnish the information correctly at the time of filling up the Form, the subsequent withdrawal of the criminal case registered against him or the nature of offences were immaterial. "The requirement of filling Columns 12 and 13 of the Attestation Form" was for the purpose of verification of the character and antecedents of the employee as on the date of filling in the Attestation Form. Suppression of material information and making a false statement has a clear bearing on the character and antecedent of the employee in relation to his continuation in service.

In State of Haryana and Others Vs. Dinesh Kumar, , this Court held that there has to be a deliberate and wilful misrepresentation and in case the applicant was not aware of his involvement in any criminal case or pendency of any criminal prosecution against him, the situation would be different.

In Secy. Deptt. of Home Secy. A.P. and Others Vs. B. Chinnam Naidu, , this Court held that facts are to be examined in each individual case and the candidate is not supposed to furnish information which is not specifically required in a case where information sought dealt with prior convictions by a criminal Court. The candidate answered it in the negative, the court held that it would not amount to misrepresentation merely because on that date a criminal case was pending against him. The question specifically required information only about prior convictions.

In R. Radhakrishnan Vs. The Director General of Police and Others, , this Court held that furnishing wrong information by the candidate while seeking appointment makes him unsuitable for appointment and liable for removal/termination if he furnished wrong information when the said information is specifically sought by the appointing authority.

In the instant case, the High Court has placed reliance on the Government Order dated 28-4-1958 relating to verification of the character of a Government servant, upon first appointment, wherein the individual is required to furnish information about criminal antecedents of the new appointees and if the incumbent is found to have made a false statement in this regard, he is liable to be discharged forthwith without prejudice to any other action as may be considered necessary by the competent authority. The purpose of seeking such information is not to find out the nature or gravity of the offence or the ultimate result of a criminal case, rather such information is sought with a view to judge the character and antecedents of the job seeker or suitability to continue in service. Withholding such material information or making false representation itself amounts to moral turpitude and is a separate and distinct matter altogether than what is involved in the criminal case.

More so, if the initial action is not in consonance with law, the subsequent conduct of a party cannot sanctify the same. "Sublato Fundamento cedit opus"- a foundation being removed, the superstructure falls. A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent Court. In such a case the legal maxim Nullus Commodum Capere Potest De Injuria Sua Propria applies. The persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation. (Vide: Union of India and others Vs. Major General Madan Lal Yadav (Retd.), ; and Lily Thomas, Vs. Union of India and Others, . Nor can a person claim any right arising out of his own wrong doing. (Jus Ex Injuria Non Oritur).

the appellant suppressed material information sought by the employer as to whether he had ever been involved in a criminal case. Suppression of material information sought by the employer or furnishing false information itself amounts to moral turpitude and is separate and distinct from the involvement in a criminal case."

Consequently, the instant appeal is dismissed being devoid of any merit.