# (2011) 2 ILRA 747

- **Citation:** (2011) 2 ILRA 747
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-05-31
- **Case number:** Civil Misc. Writ Petition No. 69274 of 2009
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2011-2-ilra-747-41937
- **Pages:** 8

## Headnote

Constitution
of
India,
Article
226Dismissal from Service-on allegation of
filing forged Cast Certificate-petitioner
declared himself as 'Ahir' by cast-from
very
beginning
stated
that
being
unaware
with
procedure
of
Cast
Certificate had given Rs. 500/-to the
Munshi-and an FIR against guilty Munshi
lodged
under
direction
of
Courtdisciplinary
authority
inflated
punishment of dismissal-in meantime
Cast Certificate issued by competent
authority
produced
before
revisional
authority-who confirmed the order of
dismissal on mechanical manner-heldorder entails civil consequences can not
be passed without affording opportunity
of hearing-when Counsel as well as
Standing Counsel unable to produce any
rule regulation or procedure regarding
issue of Cast Certificate-a villager little
man can not be held guilty for the
misdeed of Munshi working in Tehsilorder
of
dismissal
set-a-side
with
direction to decide as fresh in light of
observation made by court.

Held: Para 21 and 22

Otherwise also to get an employment
now a days is a hard task and when a
person is in a service, so many things
depend
on
him.
Therefore,
before
imposing a penalty of cancellation of
selection termination/dismissal/removal
from service, the authorities empowered
for imposing such penalties must take
due care and caution.

In the present case as obviously pending
statutory
proceedings
when
the
petitioner has brought on record the
caste certificate and prayed with all
humility that this aspect of the matter be
considered as he has been cheated and
has
been
made
victim
of
the
circumstances. It was the duty of the
authority concerned to look into the
same instead discarding the same with
closed
eye.
Otherwise
also
as
the
petitioner's selection has been cancelled
on the ground of fraud played by the
petitioner, therefore, the petitioner was
entitled for notice and before issuing
show cause notice to the petitioner the
impugned order could not have been
passed.
Case law discussed:
2011 (1) ADJ 635; 2005 (6) SCC 149; 1993
SCC 259; 2000(1) SCC Page 152; 2008 Vol.
(10) ADJ 283;Sanjay Kumar Singh Vs. State of
U.P. and others, passed in Writ Petition No.
51282 of 2007 decided on 27.01.2010,

## Text

2 All Vinod Kumar Yadav V. State of U.P. and others
747
premises
No.1029/880
Old
Katra,
Allahabad preferably on the front portion
facing Chintamani Road Allahabad.

45.

Writ
Petition
allowed
accordingly.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2011

BEFORE
THE HON'BLE RAN VIJAI SINGH,J.

Civil Misc. Writ Petition No. 69274 of 2009

Vinod Kumar Yadav

 ...Petitioner
Versus
State of U.P. and others ...Respondent

Counsel for the Petitioner:
P. N. Tripathi

Counsel for the Respondent:
C. S. C.
Sri M.C. Chaturvedi

Constitution
of
India,
Article
226Dismissal from Service-on allegation of
filing forged Cast Certificate-petitioner
declared himself as 'Ahir' by cast-from
very
beginning
stated
that
being
unaware
with
procedure
of
Cast
Certificate had given Rs. 500/-to the
Munshi-and an FIR against guilty Munshi
lodged
under
direction
of
Courtdisciplinary
authority
inflated
punishment of dismissal-in meantime
Cast Certificate issued by competent
authority
produced
before
revisional
authority-who confirmed the order of
dismissal on mechanical manner-heldorder entails civil consequences can not
be passed without affording opportunity
of hearing-when Counsel as well as
Standing Counsel unable to produce any
rule regulation or procedure regarding
issue of Cast Certificate-a villager little
man can not be held guilty for the
misdeed of Munshi working in Tehsilorder
of
dismissal
set-a-side
with
direction to decide as fresh in light of
observation made by court.

Held: Para 21 and 22

Otherwise also to get an employment
now a days is a hard task and when a
person is in a service, so many things
depend
on
him.
Therefore,
before
imposing a penalty of cancellation of
selection termination/dismissal/removal
from service, the authorities empowered
for imposing such penalties must take
due care and caution.

In the present case as obviously pending
statutory
proceedings
when
the
petitioner has brought on record the
caste certificate and prayed with all
humility that this aspect of the matter be
considered as he has been cheated and
has
been
made
victim
of
the
circumstances. It was the duty of the
authority concerned to look into the
same instead discarding the same with
closed
eye.
Otherwise
also
as
the
petitioner's selection has been cancelled
on the ground of fraud played by the
petitioner, therefore, the petitioner was
entitled for notice and before issuing
show cause notice to the petitioner the
impugned order could not have been
passed.
Case law discussed:
2011 (1) ADJ 635; 2005 (6) SCC 149; 1993
SCC 259; 2000(1) SCC Page 152; 2008 Vol.
(10) ADJ 283;Sanjay Kumar Singh Vs. State of
U.P. and others, passed in Writ Petition No.
51282 of 2007 decided on 27.01.2010,

(Delivered by Hon'ble Ran Vijai Singh, J. )

1. Through this writ petition, the
petitioner has prayed for issuing a writ of
certiorari quashing the orders dated
10.11.2009, 29.1.2008 and 21.8.2007.
Vide
order
dated
21.8.2007,
the
Superintendent of Police, Ghazipur has
cancelled the petitioner's selection on the
ground that while entering in the service,
748 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
petitioner has filed forged caste certificate
whereas vide order dated 29.1.2008 and
10.11.2009 the petitioner's appeal as well
as revision filed against the order of
cancellation of the selection have been
dismissed by the respondents no. 3 and 2
respectively .

2. The facts giving rise to this case
are that the petitioner was selected for
appointment on the post of Constable in
U.P. Civil Police in the year 2006 and was
sent for training. While entering in the
service, the petitioner has claimed the
benefit of reservation of other backward
classes on the basis of caste certificate
issued
by
Tehsildar
Tehsil
Shahganj,District
Jaunpur.
Later,
on
verification from the Tehsil Authority it
was found that the caste certificate was
not issued by the office of Tehsildar and
on that ground the petitioner's selection
was cancelled by the impugned order
dated 21.8.2007 by Superintendent of
Police holding that the petitioner has
obtained his selection by playing fraud
upon the authorities as he has produced
forged caste certificate at the time of
entering into the service.

3. The appeal filed by the petitioner
has been dismissed by the respondent no.
3. However before revision could be filed
when it came to the notice of the
petitioner that his selection has been
cancelled on the ground of forged caste
certificate. He applied before the tehsil
authority
for
obtaining
the
caste
certificate as the petitioner belongs to
Ahir by caste and falls under the O.B.C.
category and is entitled for reservation
under U.P. Scheduled Caste Scheduled
Tribes and Other Backward Classes
Reservation, Act 1994. Thereafter he
obtained
the
caste
certificate
and
produced the same before the revisional
authority. But the revisional authority
without veryfying it from the tehsil
authority has dismissed the revision by
affirming the order passed by appointing
authority as well as appellate authority.

4. Sri P.N.Tripathi, learned counsel
for the petitioner submitted that the
petitioner is of a rural background and he
has given Rs. 500/- to one Sri Akhilesh
Srivastava for obtaining caste certificate
who happens to be deed writer and
munshi in Tehsil Shahganj. Who provided
him the caste certificate issued by the
office of Tehsildar containing the seal and
signature of Tehsildar and there was no
occasion for the petitioner to disbelieve
the same. On the basis of said certificate,
the petitioner applied for selection. It is
also submitted that when the petitioner
came to know that this is forged
certificate,
the
petitioner
filed
an
application under Section 156 (3) Cr.P.C.
before the court of competent jurisdiction
for lodging an F.I.R. against Sri Akhilesh
Srivastava that is pending before that
court. He has further submitted that as the
impugned order has been passed on the
ground of allegation of fraud therefore
before passing any order on that count an
opportunity of hearing ought to have been
offered to the petitioner. In support of his
submissions, he has placed reliance upon
the judgment of this Court reported in
2011 (1) ADJ 635 Kishan Kumar Vs
State of U.P. and others.

5. Refuting the submissions of
learned counsel for the petitioner, learned
standing counsel has submitted that the
caste certificate of the petitioner, which
was submitted by him at the time of
recruitment, was not issued by the office
of Tehsildar, therefore no infirmity can be
2 All Vinod Kumar Yadav V. State of U.P. and others
749
attached with the impugned order as on
date of selection the petitioner had
produced forged certificate.

6. Learned standing counsel further
submitted that even if the opportunity
would have been offered, the petitioner
could not have improved his case as on
the date of production of certificate, it was
not issued by competent authority. In his
further submissions, the petitioner has no
leg to stand before the court and the writ
petition deserves to be dismissed.

7. I have heard learned counsel for
the parties and perused the record.

After hearing learned counsel for the
parties, it transpires that undisputedly the
caste certificate filed by the petitioner
showing him Ahir by caste was not issued
by the office of Tehsildar. It appears that
this fact came into the notice of the
respondents at the time of verification of
the caste certificate and on that basis the
appointing authority has cancelled the
selection of the petitioner on the ground
that the petitioner has obtained his
selection by playing fraud annexing the
forged certificate.

8. From the perusal of impunged
order it transpires that before passing the
impugned order the opportunity of
hearing was not afforded to the petitioner.
It is settled law that where any order is
passed on the ground of playing fraud
then an opportunity of hearing is
necessary. The mere allegation of fraud is
not sufficient for taking action against a
person unless it is pleaded and proved.

9. It is also settled that fraud is
always intentional and is being played
with a view to obtain certain benefit
knowing it well that in case true facts are
stated that benefit would not be extended
to the person concerned.

10. The Apex Court in the case of
State
of
A.P.
&
Anr.
Vs.
T.
Suryachandra Rao, reported in 2005 (6)
SCC 149, has observed as under:-

"8. By "fraud" is meant an intention
to deceive; whether it is from any
expectation of advantage to the party
himself or from ill-will towards the other
is immaterial. The expression "fraud"
involves two elements, deceit and injury
to
the
person
deceived.
Injury
is
something other than economic loss, that
is, deprivation of property, whether
movable or immovable, or of money, and
it will include any harm whatever caused
to any person in body, mind, reputation or
such others. In short, it is a non-
economic or non-pecuniary loss. A benefit
or advantage to the deceiver, will almost
always cause loss or detriment to the
deceived. Even in those rare cases where
there is a benefit or advantage to the
deceiver, but no corresponding loss to the
deceived,
the
second
condition
is
satisfied. (See Vimla (Dr.) Vs. Delhi
Admn., AIR 1963 SC 1572; and Indian
Bank Vs. Satyam Fibres (India) (P) Ltd.,
(1996) 5 SCC 550).

9. 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.
(See
S.P.Chengalvaraya Naidu Vs. Jagannath,
(1994) 1 SCC 1).

11. ----------------In Webster's Third
New International Dictionary "fraud" in
750 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
equity has been defined as an act or
omission to act or concealment by which
one person obtains an advantage against
conscience over another or which equity
or public policy forbids as being
prejudicial to another. In Black's Law
Dictionary, "fraud" is defined as an
intentional perversion of truth for the
purpose of inducing another in reliance
upon it to part with some valuable thing
belonging to him or surrender a legal
right. A false representation of a matter of
fact, whether by words or by conduct, by
false or misleading allegations, or by
concealment of that which should have
been disclosed, which deceives and is
intended to deceive another so that he
shall act upon it to his legal injury. In
Concise Oxford Dictionary, it has been
defined as criminal deception, use of false
representation to gain unjust advantage;
dishonest artifice or trick. According to
Halsbury's
Laws
of
England,
a
representation is deemed to have been
false, and therefore a misrepresentation,
if it was at the material date false in
substance and in fact. Section 17 of the
Contract Act, 1872 defines "fraud" as an
act committed by a party to a contract
with the intent to deceive another. From
dictionary meaning or even otherwise
fraud arises out of a deliberate active role
of the representator about a fact, which
he knows to be untrue yet he succeeds in
misleading the representee by making him
believe it to be true. The representation to
become fraudulent must be of fact with
the knowledge that it was false. In a
leading English case i.e. Derry Vs. Peek
(1886-90) All ER Rep 1 what constitutes
"fraud" was described thus; (All ER p.22
B-C).--------.

15. "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 the former either by words or
letter. Although negligence is not fraud
but it can be evidence on fraud; as
observed in Ram Preeti Yadav Vs. U.P.
Board of High School and Intermediate
Education, (2003) 8 SCC 311."

11. From the perusal of the Apex
Court's judgment, it is clear that the fraud
is always intentional and it is played by a
person knowing it well that he does not
belong to a particular category and files
certificate on the basis of falsehood with a
view to obtain the benefit of falsehood
whereas in the present case, it is not so, as
the petitioner himself has gone before the
authorities as well as came before this
Court with clean hands in unambiguous
words that he had paid money to one Sri
Akhilesh Srivastava for obtaining the
caste certificate and thereafter, the caste
certificate was given to him by Sri
Srivastava. In fact, this is a case where the
fraud has been played on the petitioner.
The petitioner really belongs to other
backward class (Ahir by caste) and has
been made victim of circumstances.

12. After dismissal of the appeal and
before filing of the revision the petitioner
has obtained the caste certificate issued by
the Tehsildar and submitted the same
before the revisional authority along with
the memo of revision but the revisional
authority did not take notice of the
aforesaid fact and dismissed the revision.

13. It is to be noticed that belonging
of a person to a particular caste is a
question of fact and which cannot be
negatived in any circumstances. Here
doctrine of factum valet will come into
play i.e. hundred text cannot alter a fact.
2 All Vinod Kumar Yadav V. State of U.P. and others
751
The facts always remain the same. The
issuance of a certificate only means that a
competent authority is certifying a person
that he belongs to a particular caste and
for that purpose the certificate issued is
taken to be true. It is not so that if the
certificate is not issued to a particular
person the factum of belonging of a
person to a particular caste is anyhow
diluted. The mere declaration of a person
belonging
to
a
particular caste
is
sufficient. The certification given by an
authority is only putting a seal on the
declaration of person after verification.
Here in the present case, the filing of
earlier certificate which was in fact not
issued by the office of Tehsildar will not
dilute the petitioner 's status of his being
Ahir by caste.

14. In fact, the status of the
petitioner has further been certified by the
Tehsildar and the certificate was brought
into the notice of the revisional authority.
In these circumstances, I am of the view
that the revisional authority is not meant
to put a seal on the orders passed by the
competent
authority
and
appellate
authority. He is under statutory obligation
to apply his own mind to the facts of the
case. Here I find that the revisional
authority has not applied his mind to the
full swing and based his decision only on
the basis of the decision of competent
authority and appellate authority. It was
the duty of the revisional authority to take
notice of the fact that the defect which
crept earlier has now been cured. He
would
have
examined
the
matter
sympathetically
looking
into
the
background
of
the
petitioner.
The
petitioner in his complaint which has been
brought on record as Annexure 7 to the
writ petition has stated that he is the
villager and is totally unaware of the fact
that how the caste certificate is issued.
He, believing on a person who was
working in the Tehsil campus, has given
money required by him for obtaining
caste certificate. In fact he has been
duped. Learned counsel appearing for the
State respondents has also not brought
any rule in the notice of the court meant
for obtaining caste certificate containing
the procedure for making an application
disclosing the requirement for filing an
application for obtaining caste certificate.
In absence of any rule which is not known
to the parties' counsel how can it be
expected from a person living in the
remote rural area will know about the
same. The petitioner has been made
victim of the circumstances which has
resulted into the cancellation of his
selection.

15. I am of the considered opinion
that the authorities below have erred in
holding that the petitioner has played
fraud in his selection. Had the petitioner,
was not Ahir by caste and would have
annexed certificate to that extent his role
would have certainly been brought in the
zone/ambit of fraud, therefore very basis
of impugned orders are unsustainable. I
also find that the impugned order of
cancellation of selection suffers from
breach of principle of natural justice.

16. The Apex Court in the case of
D.K.Yadav Vs. J.M.A.Industries Ltd.
Reported in 1993,SCC 259 has made the
following observations.

The cardinal point that has to be
borne in mind, in every case, is whether
the person concerned should have a
reasonable opportunity of presenting his
case and the authority should act fairly,
justly, reasonably and impartially. It is
752 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
not so much to act judicially but is to act
fairly, namely, the procedure adopted
must be just, fair and reasonable in the
particular circumstances of the case. In
other words application of the principles
of natural justice that no man should be
condemned unheard intends to prevent
the authority from acting arbitrarily
effecting the rights of the concerned
person.

It is fundamental rule of law that no
decision must be taken which will affect
the right of any person without first being
informed of the case and giving him/her
an opportunity of putting forward his/her
case.
An
order
involving
civil
consequences must be made consistently
with the rules of natural justice. In
Mohinder Singh Gill Vs. Chief Election
Commissioner, (1978) 1 SCC 405 :(1978)
2 SCR 272; the Constitution Bench held
that 'Civil consequences' covers infraction
of not merely property or personal right
but of civil liberties, material deprivation
and non-pecuniary damages. In its
comprehensive connotation every thing
that affects a citizen in his civil life inflicts
a
civil
consequence.
Black's
Law
Distionary, 4th edn., page 1487 defined
civil rights are such as belong to every
citizen of the State or country.... they
include.....
rights
capable
of
being
enforced or redressed in civil action.........
In State of Orissa Vs. (Misss) Birapani
Dei this Court held that even an
administrative order which involves civil
consequences must be made consistently
with the rules of natural justice. The
person concerned must be informed of the
case, the evidence in support thereof
supplied and must be given a fair
opportunity to meet the case before an
adverse decision is taken. Since no such
opportunity was given it was held that
superannuation was in violation of
principles of natural justice.

In State of W.B. Vs. Anwar Ali
Sarkar, 1952 SCR 284: AIR 1952 SC 75:
1952 Cri LJ 510; per majority, a seven
judge Bench held that the rule of
procedure laid down by law comes as
much within the purview of Article 14 of
the Constitution as any rule of substantive
law. In Maneka Gandhi Vs. Union of
India (1978) 1 SCC 248: (1978) 2 SCR
621 another Bench of seven judges held
that the substantive and procedural laws
and action taken under them will have to
pass the test under article 14. The test of
reasons and justice cannot be abstract.
They cannot be divorced from the needs
of the nation. The tests have to be
pragmatic otherwise they would cease to
be reasonable. The procedure prescribed
must be just, fair and reasonable even
though there is no specific provision in a
statute or rules made thereunder for
showing cause against action proposed
to be taken against an individual, which
affects the right of that individual. The
duty to give reasonable opportunity to be
heard will be implied from the nature of
the function to be performed by the
authority which has the power to take
punitive or damaging action. Even
executive
authorities
which
take
administrative
action
involving
any
deprivation of or restriction on inherent
fundamental rights of citizens, must take
care to see that justice is not only done
but manifestly appears to be done. They
have a duty to proceed in a way which is
free from even the appearance of
arbitrariness,unreasonableness
or
unfairness. They have to act in a manner
which is patently impartial and meets the
requirement of natural justice.
2 All Vinod Kumar Yadav V. State of U.P. and others
753

The law must therefore be now taken
to
be
well
settled
that
procedure
prescribed for depriving a person of
livelihood must meet the challenge of
Article 14 and such law would be liable to
be tested on the anvil of Article 14 and the
procedure prescribed by a statute or
statutory rule or rules or orders affecting
the
civil
right
or
result
in
civil
consequences would have to answer the
requirement of Article 14. So it must be
right, just and fair and not arbitrary,
fanciful or oppressive. There can be no
distinction between quasi judicial function
and an administrative function for the
purpose of principles of natural justice.
The aim of both administrative inquiry as
well as the quasi judicial inquiry is to
arrive at a just decision and if a rule or
natural justice is calculated to secure
justice or to put in negatively, to prevent
miscarriage of justice, it is difficult to see
why it should be applicable only to quasijudicial inquiry and not to administrative
inquiry. It must logically apply to both.
Therefore, fair play in action requires
that the procedure adopted must be just,
fair and reasonable. The manner of
exercise of the power and its impact on
the rights of the person affected would be
in conformity with the principles of
natural justice. Article 21 clubs life with
liberty, dignity of person with means of
livelihood without which the glorious
content of dignity of person would be
reduced to animal existence. When it is
interpreted that the colour and content of
procedure established by law must be in
conformity with the minimum fairness and
processual justice, it would relieve
legislative
callousness
despising
opportunity of being heard and fair
opportunities of defence. Article 14 has a
pervasive
processual
potency
and
versatile quality, equalitarian in its soul
and allergic to discriminatory dictates.
Equality is the antithesis of arbitrariness.
It is thereby, conclusively held by this
Court that the principles of natural justice
are part of Article 14 and the procedure
prescribed by law must be just, fair and
reasonable.

17. This decision has been followed
in numerous cases decided thereafter
which need not be detailed as this is the
established principle of law that even an
administrative order which leads to civil
consequences
must
be
passed
in
consonance with the rules of natural
justice.

18. Here in the present case it is
apparent on the face of record that no
opportunity was given to the petitioner
before passing the impugned order.

19. The Apex Court in Chandra
Prakash Shahi Vs. State of U.P. and
others reported in 2000 (1) SCC Page
152 has held that such an order amounts
to dismissal, therefore, a notice and
opportunity was necessary. It has gone to
hold that notice is also required under
Para 541 of the Police Regulations.
Recently a Division Bench of this Court
has dealt the issue in Paras Nath Pandey
Vs. Director, North Central Zone,
Cultural Centre, Allahabad reported in
2008 Vol. (10) ADJ 283 that such order
passed by the authority concerned cannot
survive.

20. It is well settled that if order of
termination is based on concealment of
fact or suppression of material then
termination order cannot be passed
without affording an opportunity of
hearing. The Apex Court as well as this
Court in numerous decisions has laid
754 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
down this proposition. In the cases of
Kamal Nayan Mishra Vs. State of
Madhya Pradesh and others reported in
(2010) 2 SCC 169 and Sanjay Kumar
Singh Vs. State of U.P. and others,
passed in Writ Petition No. 51282 of
2007 decided on 27.01.2010, it has been
held
that
order
leading
Civil
Consequences,
passed
without
opportunity of hearing is unsustainable in
eye of law.

21. Otherwise also to get an
employment now a days is a hard task and
when a person is in a service, so many
things depend on him. Therefore, before
imposing a penalty of cancellation of
selection termination/ dismissal/removal
from service, the authorities empowered
for imposing such penalties must take due
care and caution.

22. In the present case as obviously
pending statutory proceedings when the
petitioner has brought on record the caste
certificate and prayed with all humility
that this aspect of the matter be
considered as he has been cheated and has
been made victim of the circumstances. It
was the duty of the authority concerned to
look into the same instead discarding the
same with closed eye. Otherwise also as
the
petitioner's
selection
has
been
cancelled on the ground of fraud played
by the petitioner, therefore, the petitioner
was entitled for notice and before issuing
show cause notice to the petitioner the
impugned order could not have been
passed.

23. In the result, the writ petition
succeeds and is allowed. The impugned
orders dated 10.11.2009, 29.1.2008 and
21.8.2007 passed by respondent nos 2, 3
and 4 being unsustainable are hereby
quashed.

24. The matter is sent back before
the respondent no. 4 with a direction to
pass a fresh order after verifying the
newly issued caste certificate dated
23.8.2007 by the Tehsildar concerned. In
case, it is certified that the caste certificate
has been issued by the officer competent
and the petitioner belongs to Ahir by caste
the petitioner shall be immediately
reinstated
in
service
with
all
consequential benefits. There shall be no
order as to costs.
---------