# Mustaq Ullah v. State of U.P. and Ors

- **Citation:** (2014) 1 ILRA 336
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-03-20
- **Case number:** Civil Misc. Writ Petition No. 3689 of 2014
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mustaq-ullah-v-state-of-u-p-and-ors-42804
- **Pages:** 13

## Headnote

Constitution of India, Art.-226-Service Lawtermination of service-during verification of
educational record-certificates of petitioner
found forged-termination order questioned
in absence of disciplinary proceeding-heldonce the declaration in application form
found incorrect-no use of disciplinary
proceeding-termination held-proper.

Held: Para-20
Applying the principles laid down in the
aforementioned
judgments
of
Hon'ble
Supreme Court on the facts of the present
case, this Court finds that since the
petitioner procured the appointment on the
basis of forged mark sheet and certificate, it
amounted to misrepresentation and fraud
on the employer. In the circumstances,
there would be no equity in favour of the
petitioner or any estoppel against the
employer while restoring to termination
without holding any enquiry. The petitioner
suppressed material information and gave
false information and, therefore, he cannot
claim any right to continue in service. The
respondent employer has rightly exercised
1 All] Mushtaq Ullah Vs. State of U.P. and Ors.
337
the discretion to terminate the services of
the petitioner.

Case Law discussed:
2000(3)SC 151; 2004(6) SCC 325; 2003(8)
SCC 319; AIR 1994 SC 853; 2012 (8) SCC 748;
JT 2005 (11) SC 439; JT 2005(6) SC 391; JT
2007(4) SC 186; JT 2009(9)SC 365; JT
2008(3)SC 452; JT 2009(5) SC 278; JT
2008(8) SC 57.

## Text

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336 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned
is
unsustainable
for
non
consideration of the evidence on record.

32. I have read the whole of the
judgment and if it is read omitting the
impugned paragraph 32 it would not
affect the reasoning contained in the
judgment so as to weaken it on merits. In
short, the merits of the judgment would
not be affected by the deletion of the
above paragraph. The reasoning or even
the conclusion arrived at by the District
Judge in passing the said judgment would
remain unaffected by its deletion.

33. This apart, it has been well settled
that such remarks ought not to be made on the
judicial side unless the officer is present before
the court or is given an opportunity to explain
his conduct. The petitioner who is a judicial
officer and a man of dignity and integrity was
entitle to a minimal courtesy of furnishing his
explanation before being condemned. This was
none done. He came to know of it on 7.9.2013
when an annual confidential remark to the
above effect was made in his service book for
the year 2012-2013.

34. The aforesaid objectionable
remark made by the District Judge is
therefore clearly in violation of the
principles of natural justice and is not
sustainable in law.

35. In view of the above, the petitioner
qualifies all the tests laid-down in 'K' a
judicial officer (Supra) for expunging the
remarks made against him by the District
Judge on the judicial forum.

36. Accordingly, for all that has been
said, I direct for expunction of the entire
paragraph 32 of the judgment and order
dated 20.3.2013 passed by the District Judge
in rent appeal no. 42 of 2012.

37. The petition is allowed but with
no costs. The lower court record is
directed to be returned forthwith.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.02.2014

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Civil Misc. Writ Petition No. 3689 of 2014

Mustaq Ullah..... Petitioner
Versus
State of U.P. and Ors...... Respondents

Counsel for the Petitioner:
Sri Ashok Khare, Sri Siddharth Khare

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-Service Lawtermination of service-during verification of
educational record-certificates of petitioner
found forged-termination order questioned
in absence of disciplinary proceeding-heldonce the declaration in application form
found incorrect-no use of disciplinary
proceeding-termination held-proper.

Held: Para-20
Applying the principles laid down in the
aforementioned
judgments
of
Hon'ble
Supreme Court on the facts of the present
case, this Court finds that since the
petitioner procured the appointment on the
basis of forged mark sheet and certificate, it
amounted to misrepresentation and fraud
on the employer. In the circumstances,
there would be no equity in favour of the
petitioner or any estoppel against the
employer while restoring to termination
without holding any enquiry. The petitioner
suppressed material information and gave
false information and, therefore, he cannot
claim any right to continue in service. The
respondent employer has rightly exercised
1 All] Mushtaq Ullah Vs. State of U.P. and Ors.
337
the discretion to terminate the services of
the petitioner.

Case Law discussed:
2000(3)SC 151; 2004(6) SCC 325; 2003(8)
SCC 319; AIR 1994 SC 853; 2012 (8) SCC 748;
JT 2005 (11) SC 439; JT 2005(6) SC 391; JT
2007(4) SC 186; JT 2009(9)SC 365; JT
2008(3)SC 452; JT 2009(5) SC 278; JT
2008(8) SC 57.

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri Siddharth Khare,
learned counsel for the petitioner and Ms.
Suman Sirohi, learned Standing Counsel
for respondents.

2. On 14.2.2014 Sri Khare was heard at
length
and
was
directed
to
file
a
supplementary affidavit of the petitioner
annexing therewith copy of the receipt of
deposit of fees for appearance in the
examination, admit card and other documents
to demonstrate that he appeared as a private
candidate in Adhikari Pariksha of 1997,
alleged to have been held by Gurukul
Vishwavidyalay, Vrindavan, Mathura.

3. Again on 20.2.2014 writ petition
was heard at length and the following
order was passed :

"Heard Sri Siddharth Khare, learned
counsel for the petitioner and Ms. Suman
Sirohi,
learned
Standing
Counsel
appearing for the respondents.

Pursuant to the order of this Court
dated
14.2.2014,
learned
Standing
Counsel has produced the original
records. From perusal of the record, it is
found that the mark sheet as well as
certificate of Adhikari Pariksha as
submitted by the petitioner before the
concerned authorities of the year 1997
was sent for verification. On the basis of
this certificate of Adhikari Pariksha, 1997
shown to be issued by Gurukul Vishwa
Vidyalaya,
Brindavan,
Mathura,
the
petitioner has shown himself to possess
minimum educational qualification as
mentioned in the advertisement and on
that basis obtained the service. A letter
for verification of the aforesaid certificate
and the mark sheet was sent by the
respondent department to the Gurukul
Vishwa Vidyalaya, Brindavan, Mathura.
In response to it, the Vice Chancellor of
Gurukul Vishwa Vidyalaya, Brindavan,
Mathura sent the letter dated 22.5.2013
followed
by
another
letter
dated
23.10.2013 clearly stating therein that the
mark
sheet
and
Adhikari
Pariksha
Certificate of 1997 as submitted by the
petitioner is not correct and totally forged
papers. The original records were also
shown to Sri Siddharth Khare, learned
counsel for the petitioner and thereafter it
has been returned to the learned Standing
Counsel. Ms. Suman Sirohi further
submits that in the impugned order the
year of certificate was inadvertently typed
as
2007
in
place
of
1997
and
consequently, a correction order dated
8.1.2014 was passed by the Deputy
Commissioner, Mirzapur and thus the
typing mistake in the impugned order
dated 26.12.2013 has been corrected.

Sri Siddharth Khare has filed today a
supplementary affidavit of the petitioner
in which in paragraph 3 and 4, it is stated
that the petitioner is not in a position to
file any fee slip and admit card with
regard to his Adhikari Pariksha passed
from
Gurukul
Vishwa
Vidyalaya,
Brindavan, Mathura because it has been
misplaced. In pargraph 5 of the affidavit,
it is stated that the petitioner has the
original mark sheet and certificate of
Adhikari Pariksha of the year 1997
passed by him from Gurukul Vishwa
338 INDIAN LAW REPORTS ALLAHABAD SERIES
Vidyalaya, Brindavan, Mathura, which
shall be placed before this Court at the
time of argument. In view of the specific
averment in paragraph 5 of the aforesaid
supplementary affidavit, Sri Siddharth
Khare produced the alleged original mark
sheet of the petitioner of Adhikari
Pariksha, 1997 bearing Roll No. 19861
and Serial No. 15419 and the date of
issue as 18.6.1997. He also produced the
alleged
original
certificate
of
the
petitioner of Adhikari Pariksha, 1997
bearing entry "certificate no. 1288 dated
30.7.1997". On the back side of this
certificate, there is a hand written
certification that entire entries of this
certificate are correct and according to
college records. This certification has
been done on 25.7.1997. Prima facie, this
certificate itself appears to be forged
inasmuch as, in the certificate, the entry
dated 30.7.1997, could not have been
certified on 25.7.1997 coupled with the
fact that the certificate as submitted by
the petitioner to obtain the employment
was communicated to be forged by the
Vice Chancellor of the concerned Vishwa
Vidyalaya i.e. Gurukul Vishwa Vidyalaya,
Brindavan, Mathura.

Sri Siddharth Khare seeks time to file
a supplementary affidavit so as to
challenge the correction order dated
8.1.2014, the copy of which has been
given by learned Standing Counsel to him
in Court during the course of argument.

As prayed, two days' time is granted
to the petitioner to file supplementary
affidavit. In the supplementary affidavit,
the petitioner shall explain the entries of
the certificate as noted above. He shall
also annex with the supplementary
affidavit the copy of the mark sheet as
well as the front and back page of his
certificate Adhikari Pariksha, 1997. The
original certificate and the mark sheet is
being returned to Sri Khare with direction
that the same shall be produced on the
next date.

As prayed, put up on 24.2.2014 in the
additional cause list to enable the
petitioner to file a supplementary affidavit
containing the details as observed above.
"

4. Today Sri Siddharth Khare has
filed second supplementary affidavit
dated 24.2.2014 of the petitioner, which is
taken on record. It is stated in paragraph 8
of this supplementary affidavit as under :

"8. That only because of the
aforesaid
typographical
mistake/inadvertent error at the part of
the issuing authority negative opinion
with regard to the genuinity of the High
school certificate may not be formed."

5. Sri Siddharth Khare submits as
under :

(i) The petitioner is a regularly
selected candidate and was appointed in
accordance with law and was appointed as
Excise Constable vide order No. 2259
dated 25.1.2011 issued by the Deputy
Excise Commissioner, Mirzapur.

(ii) The petitioner has been removed
from service without observing the
procedure established by law.

(iii) The mark sheet and the
certificate of Adhikari Pariksha of 1997 of
Gurukul Vishwavidyalaya, Brindavan,
Mathura possessed by the petitioner are
wholly valid. The verification report
received from the Vice Chancellor of
Gurukul Vishwavidyalaya, Brindavan,
Mathura does not establish that the mark
sheet and the certificate of the petitioner
are forged. In fact, the said Vice
Chancellor does not have the records and,
1 All] Mushtaq Ullah Vs. State of U.P. and Ors.
339
therefore, in the absence of records, he
could not have stated that the mark sheet
and the certificate possessed by the
petitioner are forged.

(iv) On similar set of facts in Writ
(A) No. 45819 of 2013 and Writ (A) No.
54821 of 2013 were dismissed by two
separate orders dated 3.10.2013. Against
these two orders, Special Appeal No.
1632 of 2013 and Special Appeal No.
1634 of 2013 respectively were preferred
by the petitioners of those writ petitions in
which the Division Bench of this Court
passed an interim order dated 30.10.2013
as under :

"Argument is that the issue is
squarely covered by the recent Full Bench
Judgment of this Court in the case of
Dhanpal and Others Vs. State of U.P. and
Others, [2013 (8) ADJ 723 (FB)].

It is submitted that right from 2010,
the appellant is working and it is a case of
cancellation of appointment and that too
without
a
proper
and
reasonable
enquiry/opportunity.

It is further submitted that it is not a
case of any concealment or filing of the
incorrect documents which mislead the
respondents in appointing the appellant.

In view of the aforesaid matter, there
should
be
a
response
from
the
respondents.

List the matter after six weeks.

On the facts, this Court directs that
till the next date of listing, operation of
the order impugned dated 16.09.2013 in
the writ petition shall remain stayed. "

6. Sri Khare, therefore, submits that
in view of the interim order passed in
Special Appeal No. 1632 of 2013, the
petitioner being a similarly situated person
is entitled for similar interim relief.

7. Learned Standing Counsel has
again produced today the original records
and this Court perused the same.
Referring to the application form of the
petitioner, she submits that a declaration
was made by the petitioner in the
application form that if any information
given in the application form is found to
be wrong or untrue, he be dismissed from
service even after selection. In the said
application form, the petitioner has given
details of his educational qualification and
annexed the high school mark sheet and
certificate, which have been found to be
forged on verification from the Vice
Chancellor of Gurukul Vishwavidyalaya,
Brindavan, Mathura. She further submits
that once the very basis of obtaining the
employment has been found to be forged,
the dismissal of the petitioner from
service is wholly justified. She submits
that the original certificate produced by
the petitioner before this Court has also
been found to be forged as noted in the
above quoted order dated 20.2.2014. She
submits that the interim orders are not
precedents and, therefore, this Court is not
bound to follow the interim order passed
in Special Appeal No. 1632 of 2013. She
submits that it appears that the facts of the
csae in the aforesaid special appeal
appears to be different inasmuch as, the
interim order was granted in the said
special appeal in view of the law laid
down by the Full Bench of this Court in
the case of Dhanpal and others Vs. State
of U.P. reported in 2013 (8) ADJ 723
(FB) in which it has been held that
Adhikari Pariksha up to the year, 2008 is
equivalent to high school. She submits
that in the case of Dhanpal (supra), the
Full Bench of this Court has not held that
340 INDIAN LAW REPORTS ALLAHABAD SERIES
even the forged certificate of Adhikari
Pariksha up to the year 2008 shall be
treated to be valid.

Findings

8. I have carefully considered the
submissions of learned counsel for the parties.
In the order dated 20.2.2014 as reproduced
above, this Court has prima facie found the
certificate of the petitioner to be forged and,
therefore, granted him time to explain. In
paragraph 8 of the second supplementary
affidavit filed today, the petitioner has stated
that the aforesaid lacuna is a typographical
and inadvertent error on the part of the issuing
authority. This paragraph has been sworn on
personal knowledge. It has not been explained
that how the petitioner has personal
knowledge of alleged typographical mistake
said to have been committed by the alleged
officers of the University. Thus the averments
of para 8 of the second supplementary
affidavit is incorrect.

9. Sri Siddharth Khare has invited the
attention of the Court to the contents of
paragraph 9 of the second supplementary
affidavit filed today, in which it is stated
that the certificate of the petitioner is
genuine as it has been certified by the ExRegistrar of the Gurukul Vishwavidyalaya,
Brindavan, Mathura vide letter dated
22.2.2014. This letter filed as Annexure
No.4 to the second supplementary affidavit
is reproduced below

xq:dqy fo'ofo}|ky;] o`Unkou

vk;Z izfrfuf/k lHkk m0 iz0 y[kuÅ }kjk
lapkfyr

GURUKUL
VISHWAVIDYALAYA VRINDABAN281121 (INDIA)

dzekad& G.V.V./718 fnukad& 22.2.2014

izs"kd]

iwoZ dqylfpo xq:dqy fo'ofo|ky;

o`Unkou] eFkqjkA

lsok esa]

eq'rkd mYyk iq= Jh vter mYyk

fNiVgjh ckankA

fo"k; % vad i=ksa ds lR;kiu ds lEcU/k esa %&

izekf.kr fd;k tkrk gS fd eq'rkd mYyk iq=
Jh vtey mYyk us vf/kdkjh ijh{kk o"kZ 1997
vuqdzekad 19861 us xq:dqy fo'ofo|ky; o`Unkou
ls izFke Js.kh esa mRrh.kZ fd;k gSA dk;kZy; vfHkys[kksa
ls feyku djus ij lgh ik;k x;kA

Hkonh;ß

10. Perusal of the aforesaid letter
shows that it bears dispatch no. GVV/718
dated 22.2.2014 and has been issued by
some one as Ex-Registrar . The name of
the person who issued the certificate
neither appears in the certificate nor has
been disclosed in the supplementary
affidavit. Even if it is assumed for a
moment that this certificate has been
issued by some Ex-Registrar yet it is
surprising that how and under what
authority an Ex-Registrar can issue such a
certificate. Apart from this on the left
hand side at the top of this letter,
monogram of the University is printed
while below the signature a stamp bearing
seal of the State Government containing
name of the University has been affixed.
These circumstances are clear indications
of the fraudulent conduct of the petitioner
and also of the ingenuineness of this
paper. The Vice Chancellor of the
Gurukul
Vishwavidyalay,
Vrindavan,
Mathura,
on
being
asked
by
the
respondent authorities to verify the mark
sheet and the certificate of the petitioner,
communicated vide letter dated 22.5.2013
followed by letter dated 23.10.2013 that
the said mark sheet and certificate of
adhikari Pariksha 1997 produced by the
petitioner are forged. Thus, the mark sheet
and certificate of Adhikari Pariksha
1 All] Mushtaq Ullah Vs. State of U.P. and Ors.
341
submitted by the petitioner to obtain
employment have been correctly held by
the respondents to be forged and
fabricated.

11. So far as the contention of Sri
Siddharth Khare that the petitioner could
have been removed from service, only
after initiating the disciplinary proceeding
is concerned, this Court is of the view that
once the appointment has been obtained
on the basis of forged certificates, the
impugned order cannot be held to be
illegal.

12. The jurisdiction under Article
226 of the Constitution of India is an
extraordinary
and
discretionary
jurisdiction, which cannot be exercised in
the facts and circumstances of the case.

13. In the case of United India
Insurance Company Ltd. V. B.Rajendra
Singh and others, JT 2000(3)SC.151,
considering the fact of fraud, Hon'ble
Supreme Court held in paragraph 3 as
under :

"Fraud and justice never dwell
together".
(Frans
et
jus
nunquam
cohabitant) is a pristine maxim which has
never lost its temper overall these
centuries. Lord Denning observed in a
language without equivocation that "no
judegment of a Court, no order of a
Minister can be allowed to stand if it has
been obtained by fraud, for fraud
unravels everything"(Lazarus Estate Ltd.
V. Beasley 1956(1)QB 702).
(Emphasis supplied by me)

14. In the case of Vice Chairman,
Kendriya
Vidyalaya
Sangathan
and
Another Vs. Girdhari Lal Yadav, 2004 (6)
SCC
325,
Hon'ble
Supreme
Court
considered the applicability of principles
of natural justice in cases involving fraud
and held in paragraphs 12 and 13 as under
:

"12. Furthermore, the respondent
herein has been found guilty of an act of
fraud. In opinion, no further opportunity
of hearing is necessary to be afforded to
him. It is not necessary to dwell into the
matter any further as recently in the case
of Ram chandra Singh v. Savitri devi this
Court has noticed : (SCC p. 327 paras
15-19)

"15. Commission of fraud on court
and suppression of material facts are the
core issues involved in these matters.
Fraud as is well-known vitiates every
solemn act. Fraud and justice never
dwells together.

16. 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 former either by word or letter.

17. It is also well settled that
misrepresentation itself amounts to fraud.
Indeed, innocent misrepresentation may
also give reason to claim relief against
fraud.

18. 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 ensues therefrom
although the motive from which the
representations proceeded may not have
been bad."

19. In an action of deceit the
plaintiff must prove actual fraud. Fraud is
proved when it is shown that a false
342 INDIAN LAW REPORTS ALLAHABAD SERIES
representation has been made knowingly,
or without belief in its truth, or recklessly,
without caring whether it be true or false.

A false statement, made through
carelessness and without reasonable
ground for believing it to be true, may be
evidence of fraud but does not necessarily
amount to fraud. Such a statement, if
made in the honest belief that it is true, is
not fraudulent and does not render the
person make it liable to an action of
deceit.

13. In view of our findings
aforementioned that the respondent was
guilty of an act of fraud, in our opinion,
the Central Administrative tribunal as
also the High court committed a manifest
error in setting aside the order of the
appointing authority as also the Appellate
Authority."

(Emphasis supplied by me)

15. In the case of Ram Chandra
Singh Vs. Savitri Devi and others,
2003(8) SCC 319, Hon'ble Supreme Court
held in paragraphs 15, 16, 17, 18, 25 and
37 as under :

"15. Commission of fraud on court
and suppression of material facts are the
core issues involved in these matters.
Fraud as is well-known vitiates every
solemn act. Fraud and justice never
dwells together.

16. 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 former either by word or letter.

17. It is also well settled that
misrepresentation itself amounts to fraud.
Indeed, innocent misrepresentation may
also give reason to claim relief against
fraud.

18. 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 ensues therefrom
although the motive from which the
representations proceeded may not have
been bad.

25. Although in a given case a
deception may not amount to fraud, fraud
is anathema to all equitable principles
and any affair tainted with fraud cannot
be
perpetuated
or
saved
by
the
application of any equitable doctrine
including res-judicata.

37. It will bear repetition to state
that any order obtained by practising
fraud on court is also non-est in the eyes
of law."

(Emphasis supplied by me)

16.

In
the
case
of
S.P.
ChengalVaraya Naidu (dead) by L.Rs Vs.
Jagannath (dead) by L.Rs and others, AIR
1994 SC 853, the Hon'ble Supreme Court
held in para 7 as under :

"7. The High Court, in our view, fell
into patent error. The short question
before the High Court was whether in the
facts and circumstances of this case,
Jagannath
obtained
the
preliminary
decree by playing fraud on the court. The
High Court, however, went haywire and
made observations which are wholly
perverse. We do not agree with the High
Court that "there is no legal duty cast
upon the plaintiff to come to court with a
true case and prove it by true evidence".
The principle of "finality of litigation"
cannot be pressed to the extent of such an
absurdity that it becomes an engine of
fraud in the hands of dishonest litigants.
1 All] Mushtaq Ullah Vs. State of U.P. and Ors.
343
The courts of law are meant for imparting
justice between the parties. One who
comes to the court, must come with clean
hands. We are constrained to say that
more often than not, process of the court
is being abused. Property-grabbers, taxevaders, bank-loan-dodgers and other
unscrupulous persons from all walks of
life find the court-process a convenient
lever
to
retain
the
illegal-gains
indefinitely. We have no hesitation to say
that a person, who's case is based on
falsehood, has no right to approach the
court. He can be summarily thrown out at
any stage of the litigation."
(Emphasis supplied by me)

17. In the case of Jainendra Singh
Vs. State of U.P., 2012 (8) SCC 748,
Hon'ble Supreme Court considered the
fact of appointment obtained by fraud and
held in para 29.1 to 29.10 as under :

"29.1 Fraudulently obtained orders
of appointment could be legitimately
treated as voidable at the option of the
employer or could be recalled by the
employer and in such cases merely
because the respondent employee has
continued in service for a number of
years, on the basis of such fraudulently
obtained employment, cannot get any
equity in his favour or any estoppel
against the employer.

29.2 Verification of the character
and antecedents is one of the important
criteria to test whether the selected
candidate is suitable to the post under the
State and on account of his antecedents
the appointing authority if find not
desirable to appoint a person to a
disciplined force can it be said to be
unwarranted.

29.3
When
appointment
was
procured by a person on the basis of
forged documents, it would amount to
misrepresentation and fraud on the
employer and, therefore, it would create
no equity in his favour or any estoppel
against the employer while resorting to
termination without holding any inquiry.

29.4 A candidate having suppressed
material information and/or giving false
information
cannot
claim
right
to
continue in service and the employer,
having
regard
to
the
nature
of
employment as well as other aspects, has
the discretion to terminate his services.

29.5
Purpose
of
calling
for
information regarding involvement in any
criminal case or detention or conviction is
for the purpose of verification of the
character/antecedents at the time of
recruitment and suppression of such
material information will have clear
bearing on the character and antecedents
of the candidate in relation to his
continuity in service.

29.6 The person who suppressed the
material information and/or gives false
information cannot claim any right for
appointment or continuity in service.

29.7 The standard expected of a
person intended to serve in uniformed
service is quite distinct from other
services and, therefore, any deliberate
statement or omission regarding a vital
information can be seriously viewed and
the ultimate decision of the appointing
authority cannot be faulted.

29.8 An employee on probation can
be discharged from service or may be
refused employment on the ground of
suppression of material information or
making false statement relating to his
involvement
in
the
criminal
case,
conviction or detention, even if ultimately
he was acquitted of the said case,
inasmuch as such a situation would make
344 INDIAN LAW REPORTS ALLAHABAD SERIES
a person undesirable or unsuitable for the
post.

29.9 An employee in the uniformed
service pre-supposes a higher level of
integrity as such a person is expected to
uphold the law and on the contrary such a
service born in deceit and subterfuge
cannot be tolerated.

29.10The authorities entrusted with
the
responsibility
of
appointing
Constables, are under duty to verify the
antecedents of a candidate to find out
whether he is suitable for the post of a
Constable and so long as the candidate
has not been acquitted in the criminal
case, he cannot be held to be suitable for
appointment to the post of Constable."

(Emphasis supplied by me)

18. In the case of Ram Chandra
Singh Vs. Savitri Devi and others, JT
2005 (11) SC 439, Hon'ble Supreme
Court has elaborately considered the
meaning of the word fraud and its effects
and held in para 15 to 34 as under :

"15. Commission of fraud on court
and suppression of material facts are the
core issues involved in these matters.
Fraud as is well-known vitiates every
solemn act. Fraud and justice never
dwells together.

16. 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 former either by word or letter.

17. It is also well settled that
misrepresentation itself amounts to fraud.
Indeed, innocent misrepresentation may
also give reason to claim relief against
fraud.

18. 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 ensues therefrom
although the motive from which the
representations proceeded may not have
been bad.

19. In Derry v. Peek, (1889) 14 AC
337, if was held:

In an 'action of deceit the plaintiff
must prove actual fraud. Fraud is proved
when
it
is
shown
that
a
false
representation has been made knowingly,
or without belief in its truth, or recklessly,
without caring whether it be true or false.

A false statement, made through
carelessness and without reasonable
ground for believing it to be true, may be
evidence of fraud but does not necessarily
amount to fraud. Such a statement, if
made in the honest belief that it is true, is
not fraudulent and does not render the
person make it liable to an action of
deceit.

20. In Kerr on Fraud and Mistake at
page 23, it is stated:

"The true and only sound principle to
be derived from the cases represented by
Slim
v.
Croucher
is
this
that
a
representation is fraudulent not only
when the person making it knows it to be
false, but also when, as Jessel, M.R.,
pointed out, he ought to have known, or
must be taken to have known, that it was
false. This is a sound and intelligible
principle,
and
is,
moreover,
not
inconsistent with Derry v. Peek, A false
statement which a person ought to have
known was false, and which he must
therefore be taken to have known was
false, cannot be said to be honestly
believed in. "A consideration of the
grounds of belief", said Lord Herschell,
"is no doubt an important aid in
1 All] Mushtaq Ullah Vs. State of U.P. and Ors.
345
ascertaining whether the belief was really
entertained. A man's mere assertion that
he believed the statement he made to be
true is not accepted as conclusive proof
that he did so."

21. In Bigelow on Fraudulent
Conveyances at page 1, it is stated :

"If on the facts the average man
would have intended wrong, that is
enough."

22. It was further opined:

"This conception of fraud (and since
it is not the writer's, he may speak of it
without diffidence), steadily kept in view,
will render the administration of the law
less difficult, or rather will make its
administration more effective. Further,
not to enlarge upon the last matter, it will
do away with much of he prevalent
confusion in regard to 'moral' fraud, a
confusion which, in addition to other
things, often causes lawyers to take refuge
behind such convenient and indeed useful
but often obscure language as 'fraud upon
the law'. What is fraud upon the law?
Fraud can be committed only against a
being capable of rights, and 'fraud, upon
the law' darkens counsel. What is really
aimed at in most cases by this obscure
contrast between moral fraud and fraud
upon the law, is a contrast between fraud
in the individual's intention to commit the
wrong and fraud as seen in the obvious
tendency of the act in question."

23. Recently this Court by an order
dated 3^rd September, 2003 in Ram
Preeti Yadav v. U.P. Board of High
School & Intermediate Education and
Ors. reported in JT 2003 (Supp. 1) SC 25
held:

"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 former either by words or
letter. Although negligence is not fraud
but it can be evidence on fraud. (See
Derry v. Peek (1889) 14 AC 337).In
Lazarus Estate v. Berly [(1956) 1 All ER
341] the Court of Appeal stated the law
thus:

"I cannot accede to this argument for
a moment "no Court in this land will
allow a person to keep an advantage
which he has obtained by 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". The Court is careful not to
find fraud unless it is distinctly pleaded
and proved; but once it is proved it
vitiates judgments, contracts and all
transactions whatsoever."

In S.P. Chengalyaraya Naidu v.
Jagannath [(1994) 1 SCC 1] this Court
stated that fraud avoids all judicial acts,
ecclesiastical or temporal."

24. An act of fraud on court is
always viewed seriously. A collusion or
conspiracy with a view to deprive the
rights of the others in relation to a
property would, render the transaction
void ab initio. Fraud and deception are
synonymous.

25. In Arlidge & Parry on Fraud, it
is stated at page 21:

"Indeed,
the
word
sometimes
appears to be virtually synonymous with
"deception", as in the offence (now
repealed.) of obtaining credit by fraud. It
is true that in this context "fraud"
included certain kinds of conduct which
did not amount to false pretences, since
the definition referred to an obtaining of
credit "under false pretences, or by means
of any other fraud". In Jones, for
example, a man who ordered a meal
without pointing out that he had no money
was held to be guilty of obtaining credit
346 INDIAN LAW REPORTS ALLAHABAD SERIES
by fraud but not of obtaining the meal by
false pretences: his conduct, though
fraudulent, did not amount to a false
pretence. Similarly it has been suggested
that a charge of conspiracy to defraud
may be used where a "false front" has
been presented to the public (e.g. a
business appears to be reputable and
creditworthy when in fact it is neither) but
there has been nothing so concrete as a
false pretence. However, the concept of
deception (as defined in the Theft Act
1968) is broader than that of a false
pretence in that (inter alia) it includes a
misrepresentation as to the defendant's
intentions; both Jones and the "false
front" could now be treated as cases of
obtaining property by deception."

26. Although in a given case a
deception may not amount to fraud, fraud
is anathema to all equitable principles
and any affair tainted with fraud cannot
be
perpetuated
or
saved
by
the
application of any equitable doctrine
including res-judicata.

27. In Smt. Shrisht Dhawan v. Shaw
Brothers , it has been held that:

"Fraud and collusion vitiate even the
most solemn proceedings in any civilized
system of jurisprudence. It is a concept
descriptive of human conduct,"

28. In S.P. Chengalvaraya Naidu v.
Jagannath [(1994) 1 SCC 1] this Court in
no uncertain terms observed:

"...The principle of "finality of
litigation" cannot be passed to the extent
of such an absurdity that it becomes an
engine of fraud in the hands of dishonest
litigants. The Courts of law are meant for
imparting justice between the parties. One
who comes to the Court, must come with
clean hands. We are constrained to say
that more often than not process of the
Court
is
being
abused.
Propertygrabbers, tax-evaders, bank-loan dodgers
and other unscrupulous persons from all
walks of life find the court-process a
convenient lever to retain the illegal gains
indefinitely. We have no hesitation to say
that a person whose case is based on
falsehood, has no right to approach the
Court. He can be summarily thrown out at
any stage of the litigation... 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... A
litigant, who approaches the Court, is
bound to produce all the documents
executed by him, which are relevant to the
litigation.
If
he
withholds
a
vital
document in order to gain advantage on
the other side then he would be guilty of
playing fraud on the Court as well as on
the opposite party."

29. In Indian Bank v. Satyam Fibres
(India) Pvt. Ltd. , this Court after
referring to Lazarus Estates (supra) and
other cases observed that 'since fraud
affects the solemnity, regularity and
orderliness of the proceedings of the
Court it also amounts to an abuse of the
process of the Court, that the Courts have
inherent power to set aside an order
obtained, by practising fraud upon the
Court, and that where the Court is misled
by a party or the Court itself commits a
mistake which prejudices a party, the
Court has the inherent power to recall its
order".

30. It was further held:

"The
judiciary
in
India
also
possesses inherent power, specially under
Section 151 CPC, to recall its judgment
or order if it is obtained by fraud" on
Court, In the case of fraud on a party to
the suit or proceedings, the Court may
direct the affected party to file a separate
suit for setting aside the decree obtained
1 All] Mushtaq Ullah Vs. State of U.P. and Ors.
347
by fraud. Inherent powers are powers,
which are
resident
in
all
Courts,
especially of superior jurisdiction. These
powers spring not from legislation but
from the nature and the constitution of the
tribunals or Courts themselves so as to
enable them to maintain their dignity,
secure obedience to its process and rules,
protect its officers from indignity and
wrong and to punish unseemly behavior.
This power is necessary for the orderly
administration of the Court's business."

31.
In
Chittaranjan
Das
v.
Durgapore Project Limited and Ors. , It
has been held:

"Suppression of a material document
which affects the condition of service of
the petitioner, would amount to fraud in
such matters. Even the principles of
natural justice are not required to be
complied within such a situation.

It is now well known that a fraud
vitiates all solemn acts. Thus, even if the
date of birth of the petitioner had been
recorded in the service returns on the
basis of the certificate produced by the
petitioner, the same is not sacrosanct nor
the respondent company would be bound
thereby."

32.
Keeping
in
view
the
aforementioned principles, the questions
raised in these appeals are required to be
considered. The High Court observed that
the application of intervention filed by the
appellant purported to be under Order
XXVI, Rules 13 and 14(2) and Order XX,
Rule 18 was not maintainable as they do
not confer any power to court for setting
aside a preliminary decree on the ground
that it was obtained by practising fraud.
But once the principles aforementioned
are to be given effect to, indisputably the
court must be held to have inherent
jurisdiction in relation thereto.

33. In Manohar Lal Chopra v. Raj
Bahadur Rao Raja Seth Hiralal , the law
is stated in the following terms:

"The Code of Civil Procedure is
undoubtedly not exhaustive: it does not
lay down rules for guidance in respect of
all situations nor does it seek to provide
rules for decision of all conceivable cases
which may arise. The civil courts are
authorized" to pass such orders as may be
necessary for the ends of justice, or to
prevent abuse of the process of court, but
where an express provision is made to
meet a particular situation the Code must
be observed, and departure therefrom is
not permissible."

34.In Sharda v. Dharmpal , a threeJudge Bench, of which both of us are
parties, held that directing a person to
undergo a medical test by a matrimonial
court is implicit stating:"
(Emphasis supplied by me)

19. Similar principles with regard to
fraud have been laid down by Hon'ble
Supreme Court in the case of JT 2005(6)
SC 391, para 7 to 15, JT 2007(4) SC 186,
para 19 to 39, JT 2009(9) SC 365, para 22
and 23, JT 2008 (3) SC 452, para 12.3 to
15, JT 2009(5) SC 278, para 13 to 18 and
28 and JT 2008(8) SC 57.

20. Applying the principles laid
down in the aforementioned judgments of
Hon'ble Supreme Court on the facts of the
present case, this Court finds that since
the petitioner procured the appointment
on the basis of forged mark sheet and
certificate,
it
amounted
to
misrepresentation and fraud on the
employer. In the circumstances, there
would be no equity in favour of the
petitioner or any estoppel against the
employer while restoring to termination
without
holding
any
enquiry.
The
348 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner suppressed material information
and gave false information and, therefore,
he cannot claim any right to continue in
service. The respondent employer has
rightly
exercised
the
discretion
to
terminate the services of the petitioner.

21. In view of the above, I find no
merit in the writ petition. The writ petition
fails and is hereby dismissed with cost.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.02.2014

BEFORE
THE HON'BLE KARUNA NAND BAJPAYEE, J.

Criminal Misc. Application No. 4542 of 2014

Vinod Kumar Sahu..... Applicant
Versus
State of U.P...... Respondent