Union Of India vs Sabita Kumari

Heard learned counsel for the parties.

The applicant/respondent herein secured appointment as a Safaiwali by submitting a matriculation certificate (Annexure-2) issued by the Bihar School

Examination Samiti, Patna dated 21st November 1998 showing her to have passed the matriculation exam in 2nd Division. The appointment letter

(Annexure-3) being office memorandum dated 7th August 2013 besides containing several other conditions stipulated as under :-

If any declaration given or information furnished by him/her proves to be false or if he/she is found to have willfully suppressed any material

information, he/she will be liable to removal from service and such other action as Government may deem necessary.

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A formal joining letter will be issued after verification of character and antecedents and certificates etc., and if verification reveals that any certificate

is false, the service will be terminated without assigning any reason and without prejudice to such further action as may be taken under the provision

of Indian Penal Code for production of false certificate.

On verification from the Bihar School Examination Samiti, it turned out that she had failed in the matriculation exam. Letter dated 31st December

2015 (Annexure-5) containing the verification report of the three employees including the applicant Sabita Kumari is enclosed in support. It also

contains an endorsement against the name of the applicant that the certificate of having passed matriculation in 2nd Division is wrong. She was asked

to show-cause vide letter dated 2nd March 2016 and 5th April 2016 and being dissatisfied with her explanation, her services were terminated vide

order dated 3rd June 2016. The learned Tribunal relied upon the decision of the Apex Court in the case of Ratnesh Kumar Choudhary Vs. Indira

Gandhi Institute of Medical Science, Patna, Bihar & Ors. [JT 2015 (9) 363 ]and came to a finding that due procedure as contemplated under Article

311 of the Constitution of India has not been followed, though the order of termination is stigmatic in nature. Direction was issued to reinstate her and

also grant back wages to the extent of 50%. The respondents/petitioner herein were granted liberty to conduct proper inquiry in accordance with law

and take further action.

Learned counsel for the petitioner submits that as per the conditions of the appointment letter and also for the reason that if the appointment has been

secured on a false representation/forged document i.e. the matriculation certificate, the entire super-structure has to fall, if the edifice goes away.

Therefore, there was no requirement of following the procedure as prescribed under Article 311 of the Constitution of India. The impugned order

deserves to be set aside.

Learned counsel for the applicant/respondent herein submits that the certificate issued by the Bihar School Examination Samiti is not alleged to have

been forged by the petitioner as is also obvious from the verification report dated 31st December 2015 (Annexure-5) submitted by the Deputy

Secretary (Vigilance) of the Examination Committee. Applicant had completed two years of probation and must be treated to have been confirmed in

service. Therefore, a proper disciplinary inquiry ought to have been undertaken before passing the termination order. The order being stigmatic in

nature.

We have considered the submissions of learned counsel for the parties and the relevant material facts on record. We have also perused the impugned

order.

The facts of the present case, as briefly noted hereinabove, show that it was not a case of misconduct during probation which was the basis for

termination order and should have been preceded with a departmental inquiry in line with the decision rendered by the Apex Court in the case of

Ratnesh Kumar Choudhary (supra). In the instant case the very basis on which the appointment was secured, has turned out to be false as the

applicant had failed in the matriculation exam. The verification report dated 31 st December 2015 submitted by the Bihar School Examination

Committee has not been challenged by the applicant. Fraud vitiates all solemn proceedings. Legal maxim ""Sublato fundamento cadit opus"" is

applicable, meaning thereby in case of foundation is removed, the super-structure falls. The Apex Court in the case of Devendra Kumar v. State of

Uttaranchal, (2013) 9 SCC 363 paragraphs-13, 14, 15, 18 and 25 has held as under :-

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 eye of the 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.

In A.P. State Financial Corpn. v. GAR Re-Rolling Mills and State of Maharashtra v. 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 Shrisht Dhawan v. Shaw Bros., it has been held as under: (SCC p. 553, para 20) ""20. Fraud and collusion vitiate even the most solemn

proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct.

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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 v. M. Bhaskaran this Court, after placing reliance upon and approving its earlier judgment in Vizianagaram Social Welfare Residential

School Society v. 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.

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More so, if the initial action is not in consonance with law, the subsequent conduct of a party cannot sanctify the same. Sublato fundamento cadit

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 v. Major General Madan Lal Yadav and Lily Thomas v. Union of India.) Nor can a person claim any right arising out of his own wrongdoing

(jus ex injuria non oritur).

Thus, if the applicant had secured appointment on the basis of a false certificate showing her to have passed in 2 nd Division which after verification

showed that she had failed in the said exam, she could not claim a legal right to continue in employment. There is no requirement to follow

departmental proceeding in such a case. Learned Tribunal has committed an error in law and on facts in holding otherwise. The impugned order,

therefore, deserves to be set aside. Accordingly, it is set aside. The writ petition is allowed.