HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 23 Case :- SERVICE SINGLE No. - 8614 of 2019 Petitioner :- [ENTITY] Respondent :- State Of U.P. Thru Prin.Secy.Basic Edu. Lucknow And Ors. Counsel for Petitioner :- [ENTITY],[ENTITY],[ENTITY] Counsel for Respondent :- [ENTITY],[ENTITY] Hon'ble [ENTITY],J.
Sri [ENTITY], learned counsel for the petitioner has filed a rejoinder affidavit, the same is taken on record.
Heard Sri [ENTITY], learned counsel for the petitioner, Sri [ENTITY], learned Additional Chief Standing Counsel for the State-respondents and Sri [ENTITY] for opposite party no. 3.
By means of this petition the petitioner has impeached the validity of office order dated 12.3.2019 passed by the District Basic Education Officer, [ENTITY], the Appointing Authority, whereby the services of the petitioner has been terminated. The reasons, so indicated in the termination order is to the effect that the petitioner has committed forgery while producing the certificate of [ACT] wherein he has disclosed that he has qualified the [ACT] by securing 94 marks, however, after on-line verification being carried out the fact emerged that the petitioner has obtained only 54 marks, resultant thereof he was fail.
The brief facts of the case as demonstrated by the learned counsel for the petitioner with the support of material available on record are that the petitioner completed his T.E.T. Course on 25.11.2011 and secured 94 marks. The leanred counsel for the petitioenr has enclosed Annexure no. 2 which is a certificate issued by the Board of High School and Intermediate Education, U.P. , Allahabad in respect of [ACT] bearing Roll No. 09008439, Category- General, Certificate Serial No. 3133052.
The petitioner was appointed on the post of Assistant Teacher on 11.8.2014 as he was fully eligible for the post in question having all requisite qualifications.
Thereafter the petitioner was promoted on the post of Head Master on 5.5.2018 and has discharged his duties on the said post with utmost satisfaction as per learned counsel for the petitioner.
On 11.12.2018 the petitioner received a letter whereby the relevant documents of the petitioner were demanded and the petitioner produced the relevant documents on 20.12.2018.
After the verification of the documents through on-line the authority concerned could know that the TET-2011 Certificate of the petitioner is forged, inasmuch as the petitioner has obtained only 54 marks but the certificate which was produced by the petitioner indicates 94 marks.
The learned counsel for the petitioner has submitted in his rejoinder affidavit that the certificate of T.E.T. of the petitioner has been verified through letter no. Be/Shi./Satyapan/10836-38 2015-16 dated 20.6.2015.
The learned counsel for the petitioner has enclosed the copy of bail order dated 15.3.2019 as Annexure no. 8 with the writ petition, the perusal thereof reveals that on the basis of complaint dated 9.3.2019 the F.I.R. was lodged against the petitioner on the same allegation that his U.P. [ACT] Certificate is forged and the case was registered bearing [CASE NUMBER] under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] [ACT], P.S. Gilaula, District [ENTITY]. In the aforesaid F.I.R. the petitioner was arrested and the learned Sessions Court, [ENTITY] granted bail to the petitioner on 15.3.2019.
It appears that since the specific complaint was made by the District Basic Education Officer, [ENTITY] on 9.3.2019 pursuant to which the F.I.R. was lodged and the petitioner was arrested, therefore, the order of termination dated 12.3.2019 has been passed which is impugned with this writ petition. Para 8 of the impugned termination order order dated 12.3.2019 has specific recital regarding aforesaid criminal case.
The learned counsel for the petitioner has assailed the aforesaid order on the ground that before passing the order of termination against the petitioner no inquiry of any king whatsoever has been conducted, only a letter dated 11.12.2018 was issued in respect of production of all relevant documents of the petitioner and in compliance thereto the petitioenr produced all relevant documents before the competent authority on 20.12.2018. The submission of learned counsel for the petitioner is that since he was a confirmed and permanent teacher of Basic Education Department and was discharging his duties as Head Master, therefore, at least an opportunity of hearing should be provided to him.
So as to justify his certificate of U.P. [ACT] learned counsel for the petitioner has submitted with vehemence that he has enclosed the photo copy of the aforesaid certificate as the same has been produced before the competent authority pursuant to the aforesaid letter dated 11.12.2018, therefore, he is unable to produce the said original document, but the certificate of the petitioner is not forged one.
This Court vide order dated 29.3.2019, after hearing the learned counsel for the respective parties directed for production of relevant record fixing the date as 8.4.2019.
On 8.4.2019 the records were produced. Since the records disclosed that the petitioner had obtained only 54 marks out of 150, therefore, he was declared failed and there was one certificate in the name of [ENTITY] s/o [ENTITY] showing the marks as 117 but that certificate was not belonging to the petitioner. On the said date learned counsel for the petitioner has submitted that the serial number of the certificate of the petitioner is 3133052, therefore, the authorities may be directed to produce the said certificate which bears Serial No. 3133052.
Considering the submissions of learned counsel for the parties this Court vide order dated 8.4.2019 directed the Secretary, Board of High School and Intermediate Education, U.P., Allahabad to produce the original certificate / duplicate original certificate of the petitioner, namely, [ENTITY] s/o [ENTITY] bearing Serial No. 3133052, the petitioner and fixed the next date for 16.4.2019. On 16.4.2019 the Additional Chief Standing Counsel has produced the instruction letter dated 15.4.2019 preferred by Secretary, Board of Secondary Education, U.P., [ENTITY] apprising the Court that the petitioner whose Roll No. is 9008493 has obtained only 54 marks out of 150, therefore, he was declared fail. Since this Court was pleased to direct the opposite parties to produce such certificate which bears serial no. 3133052, the learned Additional Chief Standing Counsel has submitted that the original record is not available with the department but as per the broad-sheet, the photocopy thereof has been produced before the Court reveals that the serial no. 3133052 belongs to one Ms. [ENTITY] d/o [ENTITY] of general category who has got 94 marks out of 150 marks and roll number of Ms. [ENTITY] is 09001822. The copy of the instruction dated 15.4.2019 and enclosures thereof were kept on record on the said date.
On the basis of aforesaid instructions Sri [ENTITY] submitted with vehemence that the petitioner has produced forged certificate by interpolating the roll number and name inasmuch as the other details of the certificate being produced by the petitioner is same. On 16.4.2019 the learned counsel for the State-respondent had informed the Court that the certificate of failed candidate is not issued and the photo copy of the certificate is not being retained, only a broad-sheet is prepared, therefore, so as to verify this fact the direction was issued for the Secretary, Board of High School and Intermediate Education, U.P., [ENTITY] to file his / her personal affidavit, however, such authority was not impleaded in the array of opposite parties.
In compliance of the aforesaid direction the Secretary, Board of High School and Intermediate Education, U.P., [ENTITY] has filed her personal affidavit on 29.4.2019. By means of aforesaid personal affidavit the authority concerned has categorically submitted that the certificate being produced by the petitioner is forged one. Para 6 and 7 of the aforesaid personal affidavit are necessary to be reproduced herein below:
"6. That on verification being made it was found that the petitioner was given appointment on 11.08.2014 on the post of Assistant Teacher in Primary School namely [ENTITY], [ENTITY], District [ENTITY] on the basis of 94 marks obtained by him in the Teachers Eligibility Test-2011 and the Roll No. shown was 09008439. At this juncture it is relevant to clarify that online verification being made it was found that in the Roll No. mentioned as 09008439 the name of [ENTITY] son of [ENTITY] was shown and the marks obtained was 54 and he was declared to be unsuccessful in the said examination.
7. That the certificate which has been annexed as Annexure no. 2 to the writ petition reveals to be issued vide Sl. No. 3133952 but on verification being done it was found that certificate bearing Sl. No. 3133052 belongs to one Ms. [ENTITY] daughter of [ENTITY] of General Category getting 94 marks out of 150 marks and the Roll No. is 09001822."
The perusal of the aforesaid personal affidavit of the Secretary, reveals that the certificate so produced by the petitioner is under cloud, for that the criminal case has already been registered and criminal trial is pending. It is needless to say here that the final decision of the trial Court may decide the fate of the petitioner for the reason that the findings of the criminal trial are considered to be trustworthy, inasmuch as, in the criminal trial the factum of crime is established beyond all reasonable doubts by adducing the evidence to that effect strictly as per law of [ACT]. If the charge against the petitioner is not proved beyond all reasonable doubt before the criminal trial court, the fate of the petitioner would be otherwise but if the charge against the petitioner is proved beyond all reasonable doubts, the fate of the petitioner which has been assailed by this writ petition would remain same.
However, disputing the contents of personal affidavit of Secretary, learned counsel for the petitioner has filed rejoinder affidavit today. By means of aforesaid rejoinder affidavit the petitioner tried to justify the bonafide of the petitioner saying that the verification of the certificate of the petitioner has been made on-line whereas the relevant documents were not available with the department as indicated in para 2 of the affidavit filed by the Secretary of the Basic Education, Government of U.P., before the Contempt Court at Allahabad which is R.A.-1. Learned counsel for the petitioner has also enclosed Annexure R.A.-3 which indicates detail of the petitioner and as per aforesaid detail the petitioner has obtained only 54 marks and he is failed whereas Annexure R.A.-4 is detail of Ms. [ENTITY] who has obtained 94 marks and has passed. Learned counsel for the petitioner has submitted that this is the detail of petitioner and Ms. [ENTITY] which is available presently at the website. Learned counsel for the petitioner has filed R.A.-5 which is an order dated 18.4.2019 passed in [CASE NUMBER] : [PRECEDENT] by submitting that in the identical matter this Court was pleased to quash the termination order.
I have perused the contents of rejoinder affidavit and find that the R.A.-3 and 4 which are the details of the petitioner and Ms. [ENTITY] are supporting the stand of the opposite party. Further, so far as, the order dated 18.4.2019 in re: [PRECEDENT] (supra) is concerned, the facts and circumstances are different inasmuch as the petitioner of that writ petition has challenged the order of termination which was issued on the allegation of same alleged incorrect uploading of details with regard to T.E.T. Examination which the petitioner of that writ petition had taken whereas in the present case the allegation against the petitioner is in respect of fraud and forgery for which the F.I.R. was lodged, he was sent within judicial custody and thereafter released on bail on 15.3.2018. Since, the facts and circumstances in re: [PRECEDENT] (supra) are different to the present case, therefore, the benefit of order dated 14.4.2019 may not be extended to the present petitioner.
Learned counsel for the petitioner has placed reliance on the judgment of this Court viz. a viz. of Hon'ble Apex Court submitting therein that if any action is taken against an employee without conducting the departmental inquiry and without affording an opportunity of hearing to the employee, the said action would be nullity in the eyes of law. The details of the case laws are as under:
(i) [PRECEDENT].
(ii) [PRECEDENT] : Service Single No. 2248 of 2011, Judgment and order dated 28.3.2012
(iii) [PRECEDENT],
(iv) [PRECEDENT].
Per contra, Sri [ENTITY] has also produced various judgment of Hon'ble Apex Court i.e. (1) [PRECEDENT], (2) [PRECEDENT], (3) [PRECEDENT], (4) [PRECEDENT].
Since in the case of [PRECEDENT] (supra) almost all the aforesaid judgments have been considered, therefore, the paras 31 & 32 para of this judgment is being reproduced herein below :
"31. Now, we shall deal with the question whether both or any of the petitioners in [CASE NUMBER] are guilty of suppression of material facts, not approaching the Court with clean hands, and thereby abusing the process of the Court. Before we dwell upon the facts and circumstances of the case in hand, let us refer to some case laws which would help us in dealing with the present situation with greater precision.
32. The cases of abuse of the process of court and such allied matters have been arising before the Courts consistently. This Court has had many occasions where it dealt with the cases of this kind and it has clearly stated the principles that would govern the obligations of a litigant while approaching the court for redressal of any grievance and the consequences of abuse of the process of court. We may recapitulate and state some of the principles. It is difficult to state such principles exhaustively and with such accuracy that would uniformly apply to a variety of cases. These are:
(i) Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the Courts, initiated proceedings without full disclosure of facts and came to the courts with unclean hands'. Courts have held that such litigants are neither entitled to be heard on the merits of the case nor entitled to any relief.
(ii) The people, who approach the Court for relief on an ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant.
(iii) The obligation to approach the Court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court.
(iv) Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings. Materialism, opportunism and malicious intent have over-shadowed the old ethos of litigative values for small gains.
(v) A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final.
(vi) The Court must ensure that its process is not abused and in order to prevent abuse of the process the court, it would be justified even in insisting on furnishing of security and in cases of serious abuse, the Court would be duty bound to impose heavy costs.
(vii) Wherever a public interest is invoked, the Court must examine the petition carefully to ensure that there is genuine public interest involved. The stream of justice should not be allowed to be polluted by unscrupulous litigants.
(vii) The Court, especially the Supreme Court, has to maintain strictest vigilance over the abuse of the process of court and ordinarily meddlesome bystanders should not be granted "visa". Many societal pollutants create new problems of unredressed grievances and the Court should endure to take cases where the justice of the lis well-justifies it."
On the strength of aforesaid judgment of the Hon'ble Apex Court learned Additional Chief Standing Counsel has submitted that factum of fraud vitiates everything and if any appointment is obtained by way of fraud or by making forgery, the said appointment may be terminated as and when the factum of fraud / forgery comes into notice of competent authority and in that way the opportunity of hearing would not be required.
In the present case what I have noticed is on the basis of complaint of the B.S.A. dated 9.3.2019 the criminal case was registered against the petitioner and he was sent for judicial custody. He released on bail on 15.3.2019. The reason for termination of service is one and the same as alleged in the criminal case and the trial against the petitioner is pending. Further, perusal of the personal affidavit of the Secretary of the Board of High School and Intermediate and the material which has been made available by the authorities reveals that the petitioner had not produced the valid certificate of [ACT] and obtained appointment on the post of Assistant Teacher by way of fraud, subject to the final decision being passed by the trial court, therefore, the opportunity of hearing before cancelling the initial appointment of the petitioner on the post of Assistant Teacher, was not required. Such appointment may be cancelled even without conducting any full fledged enquiry to that effect as factum of fraud extinguishes the right of opportunity before passing punishment order against the employee.
Considering the rival submissions of learned counsel for the parties and perusing the material available on record and the case laws so referred by the learned counsel for the respective parties, I am of the considered view that there is no illegality or infirmity or perversity in the order dated 12.3.2019 passed by the opposite party no. 4, Annexure no. 1 to the writ petition, therefore, the writ petition is dismissed.
No order as to costs.
Order Date :- 1.5.2019 Om [[ENTITY], J.]