# Gajendra Pratap Singh v. State of U.P. & Ors

- **Citation:** (2022) 5 ILRA 1041
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-05
- **Case number:** Writ A No. 11722 of 2021
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gajendra-pratap-singh-v-state-of-u-p-ors-48396
- **Pages:** 10

## Headnote

A. Service Law - Termination - U.P.
Government
Servant
(Discipline
and
Appeal)
Rules,
1999
-
U.P.
Basic
Education Staff Rules, 197 -; Persons
with Disabilities (Equal Opportunities,
Protection
of
Right)
and
Full
Participation Act, 1995 - Where an
appointment
has
been
obtained
by
fraud, the authority doesn't need to
follow
the
procedure
contemplated
under the rules for conducting enquiry
before passing the order of termination.
Where the appointment is obtained by fraud,
no opportunity of hearing is required to be
given. (Para 25, 26, 29)

B. The principles of natural justice, it is
well settled, cannot be put into a
straitjacket formula. Its application will
depend
upon
the
facts
and
circumstances of each case. It is also well
settled that if a party after having proper
notice chose not to appear, he at later stage
cannot be permitted to say that he had not
been given a fair opportunity of hearing. The
party should not only be required to show
that he did not have a proper notice resulting
in violation of principles of natural justice but
also to show that he was seriously prejudiced
thereby. (Para 25)
The principle of natural justice although is
required to be complied with, it has wellknown exceptions. Where on the admitted or
indisputable facts only one conclusion is possible
and under the law only one penalty is
permissible, the court may not issue its writ to
compel the observance of natural justice, not
because it is not necessary to observe natural
justice but because courts do not issue futile
writs. (Para 27)

C. A person who seeks equity must act in a
fair and equitable manner. It is settled in
law that when a person approaches Court u/Art.
226 of the Constitution of India, he should
approach the Court with clean hands. (Para 31)

D. Jurisdiction - This Court in its jurisdiction
u/Art. 226 of Constitution of India, where it is
established that appointment is obtained by
fraud, cannot allow fraud to perpetuate by
accepting a plea of a person that before
terminating his services, the proper procedure
for conducting an enquiry as contemplated in
the relevant rules should be followed. (Para 32)

E. Words & Phrases - Effect of fraud -
'Fraud' - Suppression of a material document
would also amount to a fraud on the Court.
(Para 29)

"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. No judgment of
a Court, no order of a Minister, can be allowed
to stand if it has been obtained by fraud. Fraud
unravels
everything.
Fraud
vitiates
all
transactions known to the law of however
high a degree of solemnity.

It is a fraud in law if a party makes
representations, which he knows to be false,
and injury enures therefrom although the
motive
from
which
the
representations
proceeded may not have been bad. (Para 30)

In the present case, a perusal of disability
certificate dated 20.12.2002 issued by the office
of Chief Medical Officer, Banda reveals that the
said certificate mentioned 40% disability, but it
1042 INDIAN LAW REPORTS ALLAHABAD SERIES
does not mention the nature of disability whether
it is permanent or temporary. When on inquiry it
was found to be a forged certificate, a showcause notice was issued to the petitioner
specifying the charge against him that disability
certificate of the petitioner is forged, and the
burden was upon the petitioner to prove by filing
material evidence in response to show cause
notice that said disability certificate is genuine,
which he utterly failed to do. (Para 33, 34)

Therefore, in view of the admitted fact that the
nature of disability which the petitioner suffered
is temporary, hence, he is not entitled to the
benefit of Persons with Disabilities (Equal
Opportunities, Protection of Right) and Full
Participation Act 1995, and as such, the
disability

## Text

5 All. Gajendra Pratap Singh Vs. State of U.P. & Ors.
1041
(2022)05ILR A1041
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ A No. 11722 of 2021

Gajendra Pratap Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri R.K. Sinha, Sri A.K. Sinha

Counsel for the Respondents:
C.S.C., Sri Yogendra Singh Bohra

A. Service Law - Termination - U.P.
Government
Servant
(Discipline
and
Appeal)
Rules,
1999
-
U.P.
Basic
Education Staff Rules, 197 -; Persons
with Disabilities (Equal Opportunities,
Protection
of
Right)
and
Full
Participation Act, 1995 - Where an
appointment
has
been
obtained
by
fraud, the authority doesn't need to
follow
the
procedure
contemplated
under the rules for conducting enquiry
before passing the order of termination.
Where the appointment is obtained by fraud,
no opportunity of hearing is required to be
given. (Para 25, 26, 29)

B. The principles of natural justice, it is
well settled, cannot be put into a
straitjacket formula. Its application will
depend
upon
the
facts
and
circumstances of each case. It is also well
settled that if a party after having proper
notice chose not to appear, he at later stage
cannot be permitted to say that he had not
been given a fair opportunity of hearing. The
party should not only be required to show
that he did not have a proper notice resulting
in violation of principles of natural justice but
also to show that he was seriously prejudiced
thereby. (Para 25)
The principle of natural justice although is
required to be complied with, it has wellknown exceptions. Where on the admitted or
indisputable facts only one conclusion is possible
and under the law only one penalty is
permissible, the court may not issue its writ to
compel the observance of natural justice, not
because it is not necessary to observe natural
justice but because courts do not issue futile
writs. (Para 27)

C. A person who seeks equity must act in a
fair and equitable manner. It is settled in
law that when a person approaches Court u/Art.
226 of the Constitution of India, he should
approach the Court with clean hands. (Para 31)

D. Jurisdiction - This Court in its jurisdiction
u/Art. 226 of Constitution of India, where it is
established that appointment is obtained by
fraud, cannot allow fraud to perpetuate by
accepting a plea of a person that before
terminating his services, the proper procedure
for conducting an enquiry as contemplated in
the relevant rules should be followed. (Para 32)

E. Words & Phrases - Effect of fraud -
'Fraud' - Suppression of a material document
would also amount to a fraud on the Court.
(Para 29)

"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. No judgment of
a Court, no order of a Minister, can be allowed
to stand if it has been obtained by fraud. Fraud
unravels
everything.
Fraud
vitiates
all
transactions known to the law of however
high a degree of solemnity.

It is a fraud in law if a party makes
representations, which he knows to be false,
and injury enures therefrom although the
motive
from
which
the
representations
proceeded may not have been bad. (Para 30)

In the present case, a perusal of disability
certificate dated 20.12.2002 issued by the office
of Chief Medical Officer, Banda reveals that the
said certificate mentioned 40% disability, but it
1042 INDIAN LAW REPORTS ALLAHABAD SERIES
does not mention the nature of disability whether
it is permanent or temporary. When on inquiry it
was found to be a forged certificate, a showcause notice was issued to the petitioner
specifying the charge against him that disability
certificate of the petitioner is forged, and the
burden was upon the petitioner to prove by filing
material evidence in response to show cause
notice that said disability certificate is genuine,
which he utterly failed to do. (Para 33, 34)

Therefore, in view of the admitted fact that the
nature of disability which the petitioner suffered
is temporary, hence, he is not entitled to the
benefit of Persons with Disabilities (Equal
Opportunities, Protection of Right) and Full
Participation Act 1995, and as such, the
disability certificate could not be issued to the
petitioner. (Para 35)

Writ petition dismissed. (E-4)

Precedent followed:

1. St. of U.P. & ors. Vs Ravindra Kumar Sharma
& ors., AIR 2016 SC 690; (2016) 4 SCC 791
(Para 21)

2. Vice Chairman, K.V.S. & ors. Vs Girdharilal
Yadav, 2004 (6) SCC 325 (Para 25)

3. Bank of India & ors. Vs Avinash D. Mandivikar
& ors., 2005 (7) SCC 690 (Para 26)

4. State of Chhatisgarh & ors. Vs Dhirjo Kumar
Sengar, 2009 (13) SCC 600 (Para 27)

5. S.L. Kapoor Vs Jagmohan & ors., (1980) 4
SCC 379 (Para 27)
6. Punjab Urban Planning & Development
Authority & anr. Vs Karamjit Singh, 2019 (16)
SCC 782 (Para 28)

7. Bhaurao Dagdu Paralkar Vs St. of Mah. &
ors., AIR 2005 SC 3330 (Para 29)

Present
petition
assails
order
dated
08.01.2021, passed by Deputy Director of
Education/Principal,
District
Education
and Training Institute, Aligarh.

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard learned counsel for the
petitioner, learned Standing Counsel for
respondent nos.1 to 3, and Sri Y.S. Bohra,
learned counsel for respondent no.4.

2. The petitioner by means of the
present writ petition has assailed the order
dated
08.01.2021
passed
by
Deputy
Director of Education/Principal, District
Education and Training Institute, Aligarh
by which services of the petitioner has been
terminated.

3. The brief facts of the case are that
under a policy of State Government, it has
decided to impart six months Special
B.T.C. Training Course for the year 200708 to those candidates who possess B.Ed.
qualification so that they may be appointed
as Assistant Teachers in Government
Primary Schools. The petitioner states that
he is B.A., B.Ed. and as such he has
applied for the same under the handicapped
quota. The petitioner was selected for
Special B.T.C. Training Course, and after
successful
completion
of
the
B.T.C.
Training Course, he was appointed by letter
dated 08.02.2009 issued by District Basic
Education Officer, Aligarh.

4. Further case of the petitioner is that
the State Government by order dated
03.11.2009 directed to constitute a medical
board to re-examine the candidates, who
had done Special B.T.C. Training Course
under handicapped quota. The order dated
03.11.2009
was
challenged
by
one
Ravindra Kumar Sharma and others by
filing a writ petition which was dismissed
by this Court. Against the said order,
Special Appeal Defective No.811 of 2010
was filed which was allowed by this Court
by judgment dated 09.09.2010 limiting the
inquiry to physical verification of disability
certificate, and after that, if the authorities
5 All. Gajendra Pratap Singh Vs. State of U.P. & Ors.
1043
conclude that the candidate has not been
genuinely issued a certificate of disability
or otherwise, or that he does not suffer
from any disability so certified which
entitles him to such certificate, in that event
the candidate can be subjected to fresh
medical test and not otherwise.

5.

The
aforesaid
order
dated
09.09.2010 passed by this Court in Special
Appeal Defective No.811 of 2010 was
challenged by the State Government in
S.L.P. (C) No.8880 of 2011 which was
allowed by the Apex Court by judgment
dated 03.02.2016.

6. It appears that under a Government
Order, a show-cause notice was issued to
the petitioner on 14.09.2010 calling upon
him to show cause as to why his services
may not be terminated for obtaining an
appointment based on a forged disability
certificate. According to petitioner, he has
submitted a reply to the said show-cause
notice stating therein that in the case of
similarly
situated
candidates
namely
Sandhya Sharma and others, who preferred
writ
petition
bearing
Service
Single
No.7386 of 2010 against the order of
termination, this Court stayed the order of
termination of Sandhya Sharma and others
by order dated 22.10.2010. Accordingly, he
prayed for parity of the said interim order.
However, the service of the petitioner was
terminated by order dated 25.10.2010.

7. The petitioner challenged the order
dated 25.10.2010 by means of Writ-A
No.42815 of 2012. It appears that after the
judgment of Apex Court dated 03.02.2016, a
show-cause notice dated 23.06.2016 was
issued by the Principal (DIET) to the
petitioner. The petitioner stated that he has
furnished a reply to the said show-cause
notice, but the Court did not find any
evidence on record that the so-called reply
has been served upon respondents. However,
this Court by judgement dated 27.01.2020
directed the respondents to communicate to
the petitioner the final decision taken in
respect of his candidature. The Court rejected
the submission of counsel for the petitioner
that a fresh medical examination of the
petitioner be undertaken.

8. Pursuant to the order dated
27.01.2020 passed by this Court, a showcause notice dated 30.12.2020 was issued to
the petitioner, and thereafter, the petitioner
submitted a reply to the said show cause
notice.

9. Subsequently, the Deputy Director of
Education/Principal, District Education, and
Training Institute, Aligarh by order dated
08.01.2021 terminated the services of the
petitioner. The order dated 08.01.2021 is
impugned in the present writ petition.

10. Challenging the aforesaid order,
learned counsel for the petitioner has
contended that the petitioner has been
appointed after following the due procedure
of law, and therefore, his services could not
have been terminated except in accordance
with the law. He submits that termination of
an employee is a major punishment, and
therefore, the procedure contemplated under
the U.P. Government Servant (Discipline and
Appeal) Rules, 1999 (hereinafter referred to
as 'Rules, 1999') which applies to Assistant
Teacher of Primary Schools in view of the
U.P. Basic Education Staff Rules, 1973 ought
to have been followed by respondents. He
submits that in the absence of any inquiry,
termination order is not sustainable in law.

11.

He
further
contends
that
respondent-authority has not afforded any
reasonable opportunity of hearing to the
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner before terminating him, and on
this ground also, the impugned order is not
sustainable in law. He submits that proper
course for the respondents before taking
any final decision is that they should have
permitted the petitioner to appear before
the Medical Board to assess his disability
and only then a finding ought to have been
returned by the respondents that disability
certificate of the petitioner is forged. Thus,
he contends that impugned order is not
sustainable.

12. Per contra, learned counsel for the
respondents submits that present is a case
where appointment has been obtained by
fraud,
therefore,
the
procedure
contemplated for conducting an enquiry
under Rules, 1999 is not applicable in the
facts of the present case. He submits that in
the instant case, a show-cause notice was
given to the petitioner which clearly states
that the petitioner has obtained appointment
by submitting a forged disability certificate
and thus, he submits that if petitioner had
any material to defend his case, he ought to
have submitted that material alongwith
reply to the show-cause notice to defend
himself, but in the instant case, no material
has been placed by the petitioner to
demonstrate that he has suffered permanent
disability
to
avail
the
benefit
of
handicapped quota.

13. He further submits that in the
instant case, even no opportunity of hearing
was required since from the disability
certificate dated 08.02.2021 appearing on
page 97 of the writ petition, it is evident
that the nature of disability of the petitioner
is temporary, and thus, petitioner was not
entitled to avail the benefit of handicapped
quota, and as he obtained appointment by
submitting forged disability certificate, his
services have rightly been terminated.

14. I have considered the rival
submissions of the parties and perused the
record.

15. In the instant case, it is not in
dispute that the petitioner has obtained an
appointment under the handicapped quota
by submitting a disability certificate dated
20.12.2002 issued by the office of Chief
Medical Officer, Banda. A perusal of the
said disability certificate, appearing on
page 24, shows that the disability of the
petitioner is 40%, but whether such
disability is permanent or temporary is not
stated in the said disability certificate.

16. It appears that State Government
found that several persons have obtained
appointments
by
submitting
forged
disability certificate. This led the State
Government to issue a Government Order
dated
03.11.2009
to
conduct
the
verification of disability certificate of the
candidates who have obtained B.T.C.
Training
certificate
based
on
forged
disability certificates. Accordingly, the
petitioner was issued a show-cause notice
dated 14.09.2010 calling upon him to show
cause as to why his services may not be
terminated for obtaining the appointment
on the basis of forged disability certificate.

17. The petitioner submitted a reply to
the said show-cause notice, and District
Basic Education Officer, Aligarh being not
satisfied with the explanation of the
petitioner passed an order dated 25.10.2010
terminating the services of the petitioner.
The petitioner challenged the said order by
filing Writ-A No.42815 of 2012 which was
disposed off by this Court by judgement
dated 27.01.2020.

18. The judgment dated 27.01.2020
passed in Writ-A No.42815 of 2012
5 All. Gajendra Pratap Singh Vs. State of U.P. & Ors.
1045
discloses that during the pendency of the
writ petition, a show-cause notice dated
23.06.2016 was issued by the Principal,
DIET to the petitioner, and according to
petitioner, he submitted a reply to said
show-cause notice. Accordingly, this Court
by judgement dated 27.01.2020 directed the
competent authority to communicate the
petitioner final decision taken in respect of
his candidature. The Court rejected the
prayer of the petitioner for fresh medical
examination. A relevant extract of the
judgement dated 27.01.2020 is reproduced
herein below:-

"The Court only notes that
insofar as the submission of the learned
counsel that a fresh medical examination
be undertaken is concerned, the same is
clearly misconceived since it was that
very direction of the Division Bench
which was set aside by the Supreme
Court in Appeal."

19. After the judgement of this
Court dated 27.01.2020, a show-cause
notice was issued to the petitioner on
30.12.2020
to
which
the
petitioner
submitted reply.

20.

The
Deputy
Director
of
Education/Principal, District Education and
Training Institute, Aligarh did not find
merit in the so-called reply of the
petitioner, and accordingly, rejected the
same and terminated the services of the
petitioner by order dated 08.01.2021.

21. At this point, it is relevant to
mention that the Government Order dated
03.11.2009 was challenged in Writ Petition
which was dismissed by this Court, against
which Special Appeal Defective No.811 of
2010 was allowed by this Court by
judgment dated 09.09.2010. The judgment
of this Court in Special Appeal Defective
No.811 of 2010 was set aside by the Apex
Court in S.L.P. (C) No.8880 of 2011.
Relevant extracts of the judgment of Apex
Court are reproduced herein below:-

"10. The Division Bench of the
High Court has ignored and overlooked the
material fact that verification has already
been done by the Medical Board and it has
been found that certificates of 21% were
fraudulently obtained. The High Court has
issued a direction in the impugned order for
physical verification of the candidate by the
authorities and in case he does not suffer
from disability so certified candidate can be
subjected to fresh medical test. The High
Court has overlooked that on mere physical
verification it may not be possible to know
various kinds of disabilities such as that of
eyes, ear impairment etc. That can only be
done by the medical examination and
particularly when the High Court itself has
observed that in case there is genuine
suspicion and fraud has been committed
medical certification can be reopened.
Direction issued in this regard has not been
questioned by the respondents and in fact
process of re-verification was already over
when High Court issued aforesaid directions.

11. In our considered opinion in
the peculiar facts of this case of such a
fraud and genuine suspicion raised in the
representation lodged by the Viklang Sangh
and when 21% of such certificates have
been found to be fraudulently obtained
there was no scope for the Division Bench
to interfere and issue order to perpetuate
fraud, writ is to be declined in such a
scenario and no equity can be claimed by
the respondents.

12. In the circumstance we set
aside the impugned judgment and order
passed by the Division Bench of the High
1046 INDIAN LAW REPORTS ALLAHABAD SERIES
Court and dismiss the writ petition.
However before taking any action against
the individuals they shall be issued show
cause in the matter and thereafter decision
will be rendered in accordance with law.
Let this exercise be completed within a
period of four months. The appeal is
allowed to the aforesaid extent."

22. After the judgment of Apex Court,
according to the petitioner, a show-cause
notice dated 23.06.2016 was issued. This
Court
by
order
dated
27.01.2020
commanded the competent authority to take
a
final
decision
in
respect
of
the
candidature
of
the
petitioner.
The
explanation of the petitioner was not found
satisfactory and he was terminated from
service.

23. Now, the moot question that
arises for consideration is where an
appointment is obtained by fraud whether
procedure contemplated under Rules, 1999
for terminating the services is to be
followed or a show-cause notice is
sufficient to meet the requirement of
natural justice before passing the order of
termination.

24. To appreciate the said issue, it
would be pertinent to consider a few
judgments of the Apex Court.

25. In the case of Vice Chairman,
K.V.S. And Others Vs. Girdharilal Yadav
2004 (6) SCC 325 the respondentGirdharilal Yadav obtained an appointment
as Principal in K.V.S., Rewari, in the state
of Haryana by producing a forged caste
certificate showing that he belongs to
O.B.C.
category.
The
respondentGirdharilal Yadav was issued a show-cause
notice, and the Apex Court held that where
the appointment is obtained by fraud, no
opportunity of hearing is required to be
given. The relevant extract of paragraph 11
of the said judgment is reproduced herein
below:-

"11. ...In terms of Section 58 of
the Indian Evidence Act, 1872 facts
admitted need not be proved. It is also a
well-settled principle of law that the
principles of natural justice should not be
stretched too far and the same cannot be
put in a straitjacket formula. In Bar
Council of India v. High Court of Kerala
(2004) 6 SCC 311, this Court has noticed
that:

"24. The principles of natural
justice, it is well settled, cannot be put
into
a
straitjacket
formula.
Its
application will depend upon the facts
and circumstances of each case. It is
also well settled that if a party after
having proper notice chose not to
appear, he at later stage cannot be
permitted to say that he had not been
given a fair opportunity of hearing. The
question had been considered by a
Bench of this Court in Sohan Lal Gupta
v. Asha Devi Gupta (2003) 7 SCC 492 of
which two of us (V.N. Khare, C.J. and
Sinha, J.) are parties wherein upon
noticing a large number of decisions it
was held:

"29. The principles of natural
justice, it is trite, cannot be put in a
straitjacket formula. In a given case the
party should not only be required to show
that he did not have a proper notice
resulting in violation of principles of
natural justice but also to show that he
was seriously prejudiced thereby."

25. The principles of natural
justice, it is well settled, must not be
stretched too far'."
5 All. Gajendra Pratap Singh Vs. State of U.P. & Ors.
1047

26. In the case of Bank of India and
Others Vs. Avinash D. Mandivikar and
Others
2005
(7)
SCC
690,
the
respondent-Avinash D. Mandivikar has
obtained an appointment by submitting a
forged caste certificate. The Apex Court
has held that where the appointment is
obtained by fraud, the conduct of enquiry
as per Rules, 1999 for imposing major
punishment is not necessary. Paragraph 9
of the said judgment is extracted herein
below:-

"9. A similar plea about long
years of service was considered by this
Court in R. Vishwanatha Pillai v. State of
Kerala (2004) 2 SCC 105 to be
inconsequential. In para 19 it was
observed:

"19. It was then contended by
Shri Ranjit Kumar, learned Senior Counsel
for the appellant that since the appellant
has rendered about 27 years of service, the
order of dismissal be substituted by an
order of compulsory retirement or removal
from service to protect the pensionary
benefits of the appellant. We do not find
any substance in this submission as well.
The rights to salary, pension and other
service benefits are entirely statutory in
nature in public service. The appellant
obtained the appointment against a post
meant for a reserved candidate by
producing a false caste certificate and by
playing a fraud. His appointment to the
post was void and non est in the eye of the
law. The right to salary or pension after
retirement flows from a valid and legal
appointment. The consequential right of
pension and monetary benefits can be given
only if the appointment was valid and legal.
Such benefits cannot be given in a case
where the appointment was found to have
been obtained fraudulently and rested on a
false caste certificate. A person who
entered the service by producing a false
caste certificate and obtained appointment
for the post meant for a Scheduled Caste,
thus depriving a genuine Scheduled Caste
candidate of appointment to that post, does
not deserve any sympathy or indulgence of
this Court. A person who seeks equity must
come with clean hands. He, who comes to
the court with false claims, cannot plead
equity nor would the court be justified to
exercise equity jurisdiction in his favour. A
person who seeks equity must act in a fair
and equitable manner. Equity jurisdiction
cannot be exercised in the case of a person
who got the appointment on the basis of a
false caste certificate by playing a fraud.
No sympathy and equitable consideration
can come to his rescue. We are of the view
that equity or compassion cannot be
allowed to bend the arms of law in a case
where an individual acquired a status by
practising fraud."

27. In the case of State of
Chhatisgarh and Others Vs. Dhirjo
Kumar Sengar 2009 (13) SCC 600, the
Apex Court held that the principle of
natural justice although is required to be
complied
with,
it
has
well-known
exceptions. One of such exceptions has
been laid down in S.L. Kapoor v.
Jagmohan and Others (1980) 4 SCC 379.
A relevant portion of paragraph 24 of the
said judgment is extracted herein below:-

"24...In our view the principles of
natural justice know of no exclusionary
rule dependent on whether it would have
made any difference if natural justice had
been observed. The non-observance of
natural justice is itself prejudice to any
man and proof of prejudice independently
of proof of denial of natural justice is
unnecessary. It ill comes from a person
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
who has denied justice that the person who
has been denied justice is not prejudiced.
As we said earlier where on the admitted or
indisputable facts only one conclusion is
possible and under the law only one
penalty is permissible, the court may not
issue its writ to compel the observance of
natural justice, not because it is not
necessary to observe natural justice but
because courts do not issue futile writs."

(Emphasis supplied)"

28. Similar proposition has been
reiterated by the Apex Court in the case of
Punjab Urban Planning and Development
Authority and Another Vs. Karamjit Singh
2019 (16) SCC 782. Paragraphs 5.5, 6, 6.2
& 7 of the said judgment are reproduced
herein below:-

"5.5. It is well settled that an
order
of
regularization
obtained
by
misrepresenting facts, or by playing a fraud
upon the competent authority, cannot be
sustained in the eye of law.

In
Rajasthan
Tourism
Development Corporation Ltd. v. Intejam
Ali Zafri (2006) 6 SCC 275 it was held
that if the initial appointment itself is
void, then the provisions of the Industrial
Disputes Act, 1947 are not applicable for
terminating
the
services
of
such
workman.

In a similar case, this Court in
Bank of India v. Avinash D. Mandivikar,
(2005) 7 SCC 690 held that since the
respondent had obtained his appointment
by playing fraud, he could not be allowed
to get the benefits thereof.

6. In the present case, the Single
Judge had held that "rightly or wrongly",
the
Respondent
had
obtained
regularization, and was therefore entitled
to a disciplinary enquiry. The Division
Bench affirmed the Judgment of the Single
Judge.

6.2. The illegality of such an
appointment goes to the root of the
Respondent's absorption as a regular
employee. The Respondent could not be
considered to be an "employee", and would
not be entitled to any benefits under the
Regulations applicable to employees of the
Appellant- Authority. Therefore, the High
Court erroneously placed reliance on the
decision in ECIL v B. Karunakar, (1993) 4
SCC 727, which would not be applicable to
the facts of the present case.

7.
The
question
of holding
disciplinary proceedings as envisaged
under Article 311 of the Constitution, or
under any other disciplinary rules did not
arise in the present case since the
respondent
was
admittedly
not
an
"employee" of the appellant- Authority, and
did not hold a civil post under the State
Government. He was merely a daily wager
on the muster rolls of the appellantAuthority."

29. From the reading of aforesaid
judgments, it is clear that where an
appointment has been obtained by fraud,
the authority doesn't need to follow the
procedure contemplated under the rules for
conducting enquiry before passing the
order of termination. The Apex Court in
Bhaurao Dagdu Paralkar Vs. State of
Maharashtra and Others AIR 2005 SC
3330 dealt with the effect of fraud. It was
held as follows in the said judgment:-

"14...Fraud is proved when it is
shown that a false representation has been
made (i) knowingly, or (ii) without belief in
5 All. Gajendra Pratap Singh Vs. State of U.P. & Ors.
1049
its truth, or (iii) recklessly, careless
whether it be true or false'.

16. Suppression of a material
document would also amount to a fraud on
the Court. (See Gowrishankar v. Joshi
Amba Shankar Family Trust, (1996 (3)
SCC 310) and S.P. Chengalvaraya Naidu's
case (supra).

17. "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.

18. In Lazarus Estate Ltd. v.
Beasley (1956) 1 QB 702, Lord Denning
observed at pages 712 & 713, "No
judgment of a Court, no order of a
Minister, can be allowed to stand if it has
been obtained by fraud. Fraud unravels
everything." In the same judgment Lord
Parker LJ observed that fraud vitiates all
transactions known to the law of however
high a degree of solemnity. (page 722.)."

30. When fraud is perpetrated, the
parameters
of
consideration
will
be
different. The fraud and collusion vitiate
even the most solemn proceedings in any
civilized system of jurisprudence. It is also
settled
in
law
that
a
fraudulent
misrepresentation is called deceit and
consists in leading a man into damage by
willfully 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 enures
therefrom although the motive from which
the representations proceeded may not have
been bad.

31. Viewed from another angle, it is
also settled in law that when a person
approaches Court under Article 226 of the
Constitution of India, he should approach
the Court with clean hands. A person who
seeks equity must act in a fair and equitable
manner.

32. Further, it is also pertinent to
mention that this Court in its jurisdiction
under Article 226 of Constitution of India,
where it is established that appointment is
obtained by fraud, cannot allow fraud to
perpetuate by accepting a plea of a person
that before terminating his services, the
proper procedure for conducting an enquiry
as contemplated in the relevant rules should
be followed.

33. Now, coming to the facts of the
present case. A perusal of disability
certificate dated 20.12.2002 issued by the
office of Chief Medical Officer, Banda
reveals that the said certificate mentioned
40% disability, but it does not mention the
nature of disability whether it is permanent
or temporary. When on inquiry it was
found to be a forged certificate, a showcause notice was issued to the petitioner
specifying the charge against him that
disability certificate of the petitioner is
forged, and the burden was upon the
petitioner to prove by filing material
evidence in response to show cause notice
that said disability certificate is genuine,
which he utterly failed to do.

34. After noticing the judgment of
Apex Court dated 03.02.2016, a show
cause notice dated 23.06.2016 was issued
to the petitioner, and the petitioner
submitted a reply which was noted by the
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
authority in its order dated 08.01.2021, but
the reply of the petitioner does not disclose
that he has filed any evidence that his
disability is permanent in nature, and his
disability certificate is genuine.

35. The petitioner has enclosed the
disability certificate with the writ petition
appearing on page 97 issued by the office
of Chief Medical Officer, Banda, a perusal
of which discloses that petitioner is
suffering stiffness in the right knee which
caused 40% disability to him, but as per the
said disability certificate, the nature of
disability is temporary and not permanent.
Therefore, in view of the admitted fact that
the nature of disability which the petitioner
suffered is temporary, hence, he is not
entitled to the benefit of Persons with
Disabilities
(Equal
Opportunities,
Protection of Right) and Full Participation
Act 1995, and as such, the disability
certificate could not be issued to the
petitioner.

36. In view of the aforesaid fact and
the settled principles of law laid down by
the Apex Court in the aforesaid judgments,
this Court finds that the contention of
learned counsel for the petitioner that the
authority ought to have followed the
procedure contemplated under Rules, 1999
before imposing major punishment of
dismissal
is
misconceived
and
not
sustainable in law.

37. Thus, for the reasons given above,
the writ petition lacks merit and is
accordingly, dismissed with no order as to
costs.
----------
(2022)05ILR A1050
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.04.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Writ A No. 10229 of 2016

Dr. Kamal Kumar Saxena ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sameer Kalia, Sri Rajat Rajan Singh

Counsel for the Respondents:
C.S.C., Sri Satyanshu Ojha

A. Service Law - Misconduct - Suspension
- Disciplinary proceedings - Uttar Pradesh
Government
Servant
(Discipline
and
Appeal) Rules, 1999 - Rule 3, 7 -Sub rule
(2), 7 sub rule (3), 7 Rule 7, 7 sub rule (4),
7 sub rule (5); Civil Service Regulations:
Article 351-A - When a department
enquiry
is
conducted
against
the
Government servant it cannot be treated
as
a
casual
exercise.
The
enquiry
proceedings also cannot be conducted
with a closed mind. The enquiry officer
has to be wholly unbiased. (Para 17)

It is a settled legal proposition that, once the
Court set asides an order of punishment on the
ground, that the enquiry was not properly
conducted, the Court should not severely
preclude the employer from holding the inquiry
in accordance with law. It must remit the
concerned case to the disciplinary authority, to
conduct the enquiry from the point that it stood
vitiated,
and
to
conclude
the
same
in
accordance with law. However, resorting to such
a
course
depends
upon
the
gravity
of
delinquency involved. (Para 26)

B. The embargo of Article 351-A of Civil
Service Regulations would not come on
the way of the State to conclude the
proceedings from the stage of defect even
though the petitioner has retired. The
departmental proceedings commenced before
the retirement of the petitioner. The impugned
order is unsustainable due to the procedural