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Judgment
B.S. Chauhan and Arun Tandon, JJ.—These special appeals have been filed against the judgement and order dated 19.0972002 passed by the learned Single Judge by which the two petitions filed by the respondent employee have been allowed directing the Life Insurance Corporation of India (hereinafter called the ''Corporation'') to reinstate the respondent employee with full back wages and all consequential benefits.
The facts and circumstances giving rise to these cases are that the Corporation advertised certain posts of Assistants. The respondent employee submitted his application along with a caste certificate dated 05.10.197C issued by the Additional District Magistrate (Administration), Gorakhpur certifying that the he was a Shilpkar (Artisan) by caste, which falls in the category of Scheduled Caste. The respondent employee was selected and appointed vide appointment letter dated 06.12.1971. After about 12 years on 0510.1983, on receiving a complaint, the Corporation asked the said employee to submit his original caste certificate which he submitted on 05.12.1983. The Corporation also wrote to the District Magistrate, Gorakhpur to furnish information about the caste of the said employee. The Additional District Magistrate submitted a report dated 04.02.1988 after holding the enquiry without involving the said employee, that he was a Badhai (Carpenter) by caste and not a Shilpkar. The Corporation on receiving the said report, issued a charge sheet dated 22.03.1988 on the ground that the said employee had procured the employment as an Assistant in the Corporation on the basis of a false/wrong caste certificate. During the course of enquiry, the Corporation again asked the District Magistrate, Gorakhpur to clarify about the caste of the said employee and in response thereto, the District Magistrate vide letter dated 15.10.1989 informed the Corporation that upon due enquiry, he was of the view that the caste certificate submitted by the respondent employee at the time of entry in service was doubtful as it appeared that he was by caste a Badhai (Carpenter). The enquiry report was submitted on 11.08.1990 and after giving an opportunity to the said employee for submitting his explanation, the final order of termination of services of the respondent employee was passed on 09.05.1991 by the Disciplinary Authority, against which he preferred an appeal which was also dismissed vide order dated 17.01.1992. Being aggrieved, two writ petitions were filed by the said employee challenging the said order of termination, which merged into the order of Appellate Authority as well as for quashing the report dated 15.10.1989 submitted by the District Magistrate wherein a doubt regarding the caste certificate of the said employee had been expressed.
The learned Single Judge considered the matter at length and came to the conclusion that the report submitted by the District Magistrate was prepared behind the back of the said employee and no opportunity of hearing was given to him. The Disciplinary Authority had recorded a finding that the said employee failed to disprove the report submitted by the District Magistrate, which itself had been prepared behind his back, therefore, both the petitions were allowed directing for reinstatement of the respondent employee with full back wages and all consequential benefits. Hence these two special appeals.
We have heard Shri Manish Goel, learned Counsel for the appellants and Shri P.N. Saxena, learned Senior Advocate with Shri Sudhanshu Srivastava, for the respondent employee.
It has been canvassed on behalf of the appellants that once a post is reserved for a particular category, it has to be filled up by the candidate belonging to the said category alone unless the Appointing Authority takes a decision otherwise in case of non-availability of a suitable candidate of reserved category. Obtaining an employment by misrepresentation or by filing false certificate amounts to usurpation of the right of the candidate belonging to that reserved category and such an employee does not have a right to hold the post. In the instant case, once the District Magistrate came to the conclusion that the said employee did not belong to the category of Scheduled Caste, the Disciplinary Authority is right in arriving at the conclusion that he had no right to hold the post and the termination order could not have been quashed by the learned Single Judge.
On the contrary, Shri P.N. Saxena, learned Senior Counsel for the respondent employee has submitted that no finding of fact has been recorded by any authority, whosoever, to the effect that the said employee did not belong to Scheduled Caste. Only remarks have been made doubting as to whether he belongs to the caste of Shilpkar or Badhai. The report submitted by the District Magistrate, Gorakhpur, so heavily relied upon by the Corporation, merely expresses a doubt regarding the correctness of the certificate and there is no specific finding that the certificate had been obtained by misrepresentation or fraud or he did not belong to the Scheduled Caste. The Inquiry Officer committed an error in placing the onus to prove that the report of the District Magistrate was wrong, on the respondent employee though onus was on the Corporation to prove that the certificate of caste had been obtained by fraud and was false. The respondent employee had been appointed in the year 1970. A period of 37 years has lapsed. He is at the verge of retirement. After the judgment of the learned Single Judge, he has been reinstated as there was no interim order by this Court in appeals. Therefore, the interest of justice requires no interference at such a belated stage.
We have considered the rival submissions made by learned Counsel for the parties and perused the record.
There is no dispute about the settled legal proposition that an employment obtained by misrepresentation or fraud cannot be permitted to bear fruits as fraud vitiates any such transaction and 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 "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.
In Andhra Pradesh State Financial Corporation Vs. M/s. GAR Re-Rolling Mills and another, and State of Maharashtra and Others Vs. Prabhu, the Hon''ble Apex Court has observed that a writ Court, while exercising its equitable jurisdiction, should not act as to prevent perpetration of a legal fraud as the Courts are obliged to do justice by promotion of good faith. "Equity is, also, known to prevent the law from the crafty evasions and sub-letties invented to evade law."
In Smt. Shrisht Dhawan Vs. M/s. Shaw Brothers, it has been held as under:
Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct.
In United India Insurance Co. Ltd. Vs. Rajendra Singh and Others, the Apex Court observed that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its temper over all these centuries.
The ratio laid down by the Hon''ble Supreme Court in various cases is that dishonesty should not be permitted to bear fruits and benefit to the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud by entertaining the petitions on their behalf. In Union of India and Ors. v. M. Bhaskaran 1995 (4) SCC 100 the Apex 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:
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.
Similar view has been reiterated by the Apex Court in S. Pratap Singh Vs. The State of Punjab, ; Ram Chandra Singh Vs. Savitri Devi and Others, ; and Vice Chairman, Kendriya Vidyalaya Sangathan and Anr. V. Girdharilal Yadav : (2004)6SCC325 .
The Common Law doctrine of public policy can be enforced wherever an action affects/ offends public interest or where harmful result of permitting the injury to the public at large is evident.
More so, if initial action is not in consonance with law, the subsequent conduct of a party cannot sanctify the same. "Subla 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 reply to such a case legal maxim "Nullus Commodum capere Potest De Injuria Sua Propria" applies. (Vide Union of India and others Vs. Major General Madan Lal Yadav (Retd.), The violators of law cannot be permitted to urge that their offence cannot be subject matter of inquiry, trial or investigation. (Vide Lily Thomas v. Union of India and Ors. AIR 2000 SC 1650).
No person can claim any right arising out of his wrong doing. (Juri Ex Injuria Non Oritur).
A post meant to be filled by a particular category has to be filled up by a candidate belonging to that categqry and if the any other person occupies the said post, it would amount to transgressing the constitutional/legal rights of the candidate belonging to the said reserved category and in such an eventuality, the employee does not have a right to hold the post. (Vide State of Maharashtra and Others Vs. Ravi Prakash Babulalsing Parmar and Another, ; Additional General Manager/Human Resource Bharat Heavy Electricals Ltd. Vs. Suresh Ramkrishna Burde, ; Bank of India and Another Vs. Avinash D. Mandivikar and Others, ; Lilly Kutty Vs. Scrutiny Committee, S.C. and S.T. and Others, and State of Maharastra v. Milind and Ors. (2001) 1 SCC 4.
R. Vishwanatha Pillai Vs. State of Kerala and Others, the Hon''ble Supreme Court held that a person who procures an appointment on a post meant for reserved category candidate on the basis of a false caste certificate, cannot be held to be a person holding a civil post within the meaning of Article 311 Of the Constitution of India for the reason that such an appointment cannot be an appointment in the eye of law and in such an eventuality, the provisions of Article 311 of the Constitution of India are not attracted. Right to hold a post accrues only from a valid appointment and not from a void appointment. Any appointment made on the basis of false caste certificate is void and non-est.
In State Bank of India and Others Vs. Luther Kondhpan, the Hon''bie Supreme Court held that! where the copy of the enquiry report had been furnished to the delinquent employee and the finding of fact had been recorded therein that the said employee had procured the employment by fraudulent means and the certificate of caste had been cancelled, the principles of natural justice may not necessarily be applied to full extent.
In L.I.C. of India Vs. Sushil, the Supreme Court held that where an authority came to the conclusion that the employment had been procured by fraudulent means, the period of service rendered by such a delinquent and as to whether his service has been blemishless become meaningless for the reason that the appointment still remains void and he should not be granted relief on equity. In the said case, the delinquent employee had rendered 14 years uninterrupted and blemishless service.
In Navdeep Vs. State of Punjab and Others, the Hon''bie Supreme Court reiterated the same view. However in the peculiar facts of the case and taking into account that the candidate was even otherwise eligible and suitable for appointment, asked the State Government to reconsider the case as the employee therein had rendered 16 years service without any blemish.
Thus, in view of the above, law can be summerised that a post meant to be filled up by a reserved category candidate, if filled up by a person not belonging to the said category by any fraudulent means, the appointment remains non est, his appointment being void. In such; an eventuality, neither the principles of natural justice apply to the full extent nor Article 311 of the Constitution of India is attracted. He can also not claim the relief on equity that he had been in service for a very Iong period uninterruptedly and had a good service record.
The submissions made by Shri Saxena, learned Senior Counsel that the onus to prove as to whether the caste certificate was false or the report of the District Magistrate that the caste of the respondent employee as shown in the caste certificate was not free from doubt, was on the Corporation and it has wrongly been shifted on the respondent employee in the enquiry report itself, cannot be accepted as the matter stands concluded by a judgment of the Hon''bie Supreme Court in G. Sundarasan Vs. Union of India and another, wherein the Supreme Court considered a case where the employee continued in service for 30 years and the plea had been taken that the caste certificate was issued by the Competent Authority in 1956 at the time of entry in service, it shouia not be asked at a belated stage to prove that he was not a Scheduled Caste. The Court rejected the contention holding that where it was held on evidence in a departmental enquiry that the appointee did not belong to Scheduled Caste and he had procured appointment in a reserved quota by submitting a false certificate, the onus to prove otherwise was on him and such an onus does not cease merely because of continuation in service for a long period.
However, the question is as to whether the law laid down by the Hon''ble Su0preme Court, referred to herein above, applies in the facts of this case. The caste certificate dated 05.10.1970 had been issued to the said employee by one Shri Ram Lal Bhai, M.L.A. that the said employee belonged to Shilpkar community, which is recognized as a Scheduled Caste under the Scheduled Castes/Tribes Order (Amendment) Act, 19561 The said certificate had been endorsed by the Additional District Magistrate and the same had been submitted by the said employee along with his application. On enquiry by the Corporation, a subsequent letter dated 04.02.1988 was sent by the Additional District Magistrate(Administration), Gorakhpur. A true translation of which reads as under:
Thorough enquiry was conducted in the issue in question. After enquiry, the Tehsildar, Sadar has informed vide his; report dated 18.01.1988 that Shri Shiv Kumar Sharma, son of Shri Abhitaj Sharma, resident of Bashratpur belongs to Badhai and not Shilpkar (Scheduled Caste).
Another letter written by the Additional District Magistrate (Administration) dated 26.12.1988 makes it crystal clear that Shri Sharma belongs to the caste of Shilpkar and was a Scheduled Caste. A true translation of the relevant part of the said letter reads as under:
On the basis of the enquiry report dated 28.11.1988 wherkin documentary and oral evidence was recorded by; the Tehsildar Sadar, Gorakhpur, it was evident that Shri Shiv Kumar Sharma, son of Shri Abhi Raj Sharma, resident of Bashratpur was a Shilpkar by caste which belongs to Scheduled Caste. The District Harijan and Social Welfare Officer, Gorakhpur has affirmed the said finding vide his report dated 13.12.1988.
On further enquiry, the District Magistrate sent a letter dated 25.10.1989 to the Corporation, a true translation of relevant part of the said letter reads as under:
Enquiry was got conducted in respect of the verification of the caste of Shri Sharma, by the concerned Department. On the basis the evidence annexed, the actual position of verification of his caste is found to be doubtful. On the basis of the said enquiry report, it appears that Shri Sharma is Badhai by caste.
The enquiry report stood concluded making the observation that the delinquent failed to disprove the report of the District Magistrate.
The cumulative effect of reading of the documents, referred to herein above, is that there is no finding of fact recorded by any officer that the said employee had played any misrepresentation1 or fraud in obtaining the certificate nor is there any conclusive finding that he does not belong to the Scheduled Caste. Contradictory certificates/reports have been submitted by the District Administration on the same issue. The caste certificate dated 05.10.1970 as endorsed by the Additional District Magistrate, on the basis whereof the respondent was employed, is not a forged document. It''s issuance by the concerned authority has not been doubted. On the contrary, the said document was subjected to an enquiry and the report of the District Magistrate dated 26.12.1988 records that the Tehsildar in his report dated 26.11.1988 found the respondent to be of "Shilpkar" caste which is acknowledged as a Scheduled Caste. This report of the Tehsildar was founded on a local inspection, oral and documentary evidence collected by the Tehsildar. Not only this, the said conclusion was confirmed by the District Harijan and Social Welfare Officer vide his report dated 113.12.1988. The said certificate has not been cancelled by any Competent Authority and all subsequent enquiries were conducted by the Administration without notice to the respondent employee. Admittedly, while submitting different reports by the District Administration, the said employee was not given any opportunity to participate in the enquiry and all the reports were prepared behind his back. The reports wherein contrary findings have been recorded should not have been relied upon as the same had been prepared behind the back of the respondent employee, in view of the judgements of the Hon''ble Supreme Court in Rattan Lal Sharma Vs. Managing Committee, Dr. Hari Ram (Co-education) Higher Secondary School and others, and Gulzar Singh Vs. Sub-Divisional Magistrate and Another,
The law referred herein above, which provides that the employment obtained by Misrepresentation or fraud stands vitiated, is not applicable in the facts and circumstances of the present case and no fault can be found with the impugned judgment and order of the learned Single Judge on this count.
Be that as it may, as the learned Single Judge has allowed both the petitions on technical grounds, the Corporation ought to have been given an opportunity to hold a fresh enquiry in accordance with law. We would have adopted that course but considering the fact that the said employee was appointed 37 years ago and is now over 57 years of age and is at the verge of retirement, it will be too harsh to ask him to face a fresh enquiry particularly when he has been reinstated after the judgment of the learned Single Judge in the year 2002. Once a discretion has been exercised by a learned Single Judge, then unless there are obvious reasons for interference, the Appellate Court should be slow in interfering with the same. However, considering the peculiar facts and circumstances of the case, we modify the order of the learned Single Judge dated 19.09.2002 to the extent that the said employee would be entitled to 50 percent of the back wages from the date of termination till the date of reinstatement. Appeals stand disposed of finally.
In the facts and circumstances of the case, there shall be no order as to costs