1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2524 OF 2008 Jayprakash Balkrishna Jadhav, ) Aged about 44 years, Occupation – Nil, ) residing at B-10, Income Tax Department ) CHS Ltd., Near RTO Office, ) Four Bungalow, Andheri (W), ) Mumbai – 400 053. ).. PETITIONER VERSUS 1. Indian Oil Corporation Limited, ) Head Office, Indian Oil Bhavan, ) G-9, Ali Yavar Jung Marg, ) Bandra (East), Mumbai 400 051. ) 2. The Chairman, ) Indian Oil Corporation Limited, ) acting as Reviewing Authority ) under the rules, 3079/3, ) Sadiq Nagar, J.B. Tito Marg, ) New Delhi – 110 -49. ) 3. The Director (Marketing) & ) Appellate Authority, ) Indian Oil Bhavan, ) G-9, Ali Yavar Jung Marg, ) Bandra (East), Mumbai 400 051. ) 2 4. Executive Director (HR), ) Indian Oil Corporation Limited, ) Head Office, Indian Oil Bhavan, ) G-9, Ali Yavar Jung Marg, ) Bandra (East), Mumbai 400 051. ) 5. The Union of India, ) Aaykar Bhavan, 2nd Floor, ) New Marine Lines, ) Mumbai 400 030. ).. RESPONDENTS Shri P.G. Pravin for the Petitioner. Shri Sharan Jagtiani i/by RMG Law Associates for Respondent Nos.1 to 4. Shri V.B. Tiwari along with Shri P. Khosla for Respondent No.5. CORAM: SWATANTER KUMAR, C.J. & DR. D.Y. CHANDRACHUD, J JUDGMENT RESERVED ON : 23RD MARCH 2009 JUDGMENT PRONOUNCED ON : 26TH MARCH 2009 JUDGMENT : ( PER SWATANTER KUMAR, C.J. ) 1. The Petitioner was appointed by Respondent No.1 to the post of Grade “A” Officer (Sports quota) in the office of Respondent 3 No.1 Corporation. The Petitioner at the time of his dismissal on 25th February, 2005 was holding the post of Manager (Administration). According to the Petitioner, the contract of the employment is governed by Indian Oil Corporation Limited, Conduct, Discipline & Appeal Rules, 1980, hereinafter referred to as “the Rules”. The Petitioner fulfilled the eligibility conditions and requirements for employment. The Petitioner claims to possess all the requirements and states that he satisfied the said requirements for sport category as he had represented the State/University level tournaments. He had even represented Mumbai in the inter-State Ranji Trophy Tournament and the Bombay university and was an outstanding wicket keeper and batsman. According to the Petitioner, he was taken into the employment because of his extraordinary achievement in the sports category and other requirements were mere formalities and he had filled up the forms as required by the Corporation. In the year 1986 on the basis of the advertisement published in Marathi newspaper, he applied for B.Com. Correspondence course through Marudhar Mahavidyalaya of the Ranchi University and appeared for 4 the examination at Pune and whereafter he was issued a provisional certificate of having passed the B.Com examination by Ranchi University. The Petitioner had no knowledge that the certificate issued to him was fake. The qualification of B.Com was not essential for obtaining the employment with Respondent No.1-Corporation as Grade “A” Officer and this certificate thus in no way influences the employment of the Petitioner. During his employment with the Respondent-Corporation he won various matches and when he was working as Sports Manager, he was issued appreciation letter dated 11th April, 2000 from the then Director (HR). 2. On 6th August 2003 the Petitioner was served with a show cause notice alleging furnishing of false information/forged and fake documents regarding his educational qualifications to which the Petitioner submitted his reply on 18th August, 2003. He denied the allegations and primarily took up the plea that he was not aware that the certificate issued to him was fake. Being dissatisfied with the reply submitted by the Petitioner, the Competent Authority issued a 5 chargesheet to the Petitioner dated 20th August, 2003 stating that the Petitioner had allegedly committed the acts of misconduct as contemplated under Clause 7(4) of the Conduct, Discipline & Appeal Rules, 1980 (hereinafter referred to as the said “Rules” ). Clause 7 (4) of the said Rules reads as under:- “7. Misconduct :- (1) .......... (2) .......... (3) .......... (4) Furnishing false information regarding name, age, father's name, qualification, ability or previous service or any other matter germane to the employment at the time of employment or during the course of employment.”. 3. Departmental inquiry was conducted. During the course of inquiry, various witnesses were also examined and the inquiry officer found the Petitioner guilty of article of charges holding that the charge of furnishing false information regarding qualification at the time of employment and during the course of employment has been 6 partially proved. In furtherance to the inquiry report dated 2nd September 2004, a show cause notice was issued on 2nd September 2009 annexing the copy of the inquiry report. The petitioner again submitted his reply on 29th September 2004 and vide order dated 25th February 2005 penalty of dismissal from service was imposed upon the Petitioner against which he preferred an appeal. 4. It is the contention of the Petitioner that without proper application of mind and in arbitrary manner Respondent No.1 on 25th February 2005 dismissed the Petitioner from service ignoring the grounds taken that inquiry was in violation of the Rules as well as ignoring the report of the CBI that there was no fault on the part of the Petitioner and the officers of Marudhar Mahavidyalaya were solely responsible for this act of cheating and issuing fake certificate. Against this order, the Petitioner preferred an appeal on 3rd March 2005 which remained pending and the Petitioner was compelled to file Writ Petition in this Court being Writ Petition No. 1645 of 2008. This Writ Petition came to be disposed of by the order of the Court dated 7 23rd July 2008 requiring the Respondents to dispose of the Appeal within eight weeks and in accordance with law. The Appellate Authority vide its order dated 26th June 2006 had altered the penalty of dismissal of service to penalty of reduction to a lower grade from Grade “D” to Grade”A” and of reduction of basic pay by two stages after refixing the pay in Grade “A”. Other incidental directions were also passed by the said order. This order was not communicated to the Petitioner. However, after the passing of the order of the High Court, the same was communicated with a covering letter of 30th July 2008. The authorities issued a show cause notice dated 30th July 2008 to the Petitioner requiring him to show cause why the penalty of dismissal be not restored. To this, a detailed reply was submitted by the Petitioner on 13th August 2008, Exhibit “AE” to the Petition, taking up the grounds including that without the graduation certificate in normal course he would have attained promotion to Grade “C” and the punishment was disproportionate and in terms of Rule 38A, there was no power vested in the Authority to review Appellate orders. Another plea that was taken before the Appellate Authority was that in 8 terms of Rule 7(4) of the Rules, the alleged misconduct was not germane to employment and as such no punishment could be inflicted upon the Petitioner. The Reviewing Authority vide its order dated 1st October 2008 imposed the penalty of dismissal from service. This order was received by the Petitioner on 4th October 2008 and the legality and correctness of the said order is impugned by the Petitioner in the present Writ Petition. 5. As far as the case of Respondent No.1 in the present Writ Petition is concerned, it has filed a claim reply wherein it has been stated that the Petitioner had filled up and signed an application form being fully aware that at any time any information furnished by him in the application form is found to be untrue and incorrect, the contract of employment shall be voidable at the option of the Corporation and still he had furnished incorrect information knowing that the degree certificate that he had passed B.Com. Examination in 1996 from Ranchi University by obtaining 59.66% marks was incorrect and fake. Besides other things, the application form contained a warning which 9 reads as under :- 1. The furnishing of false information or supersession of any factual information in the ATTESTATION FORM would be a disqualification and is likely to render the candidate unfit for employment in the Indian Oil Corporation Limited. 2. If detained, arrested, prosecuted, bound down, fined, convicted, debarred, etc. as detailed in Clause 12(i) of this ATTESTATION FORM subsequent to the completion and submission of this form, the details should be communicated immediately to the INDIAN OIL CORPORATION LIMITED or the authority to whom the ATTESTATION FORM has been sent earlier, as the case may be, failing which it will be deemed to be a suppression of factual information. 3. If the fact that false information has been furnished or that there has been suppression of any factual information in the ATTESTATION FORM comes to notice at any time during the service of a person, his services would be liable to be terminated.” 6. The Petitioner was granted employment by due 10 consideration of the fact that he was a Graduate in Commerce and additional marks were given to him for such qualification. He even got promotions to Grade “B”, “C” and “D” respectively from time to time, which he could not have obtained unless he was a Graduate. The Respondents made an inquiry with Ranchi University in regard to the degree in the year 2001 and the same was replied to by the University wherein following communication was made :- “ RANCHI UNIVERSITY, RANCHI. No. Ex/2245 Dated the 26/7/03 To, H.S. BEDI, Chief Off., Indian Oil Corpn. Ltd., Indian Oil Bhavan, C-9, Ali Yavar Jang Marg Bandra (E), MUMBAI 400 051. Sub: Regarding verification of Result: B.Com.pass Sir/Madam, 11 With reference to your letter No. REF/No. PP/112/ 266 dt. 11.09.2001, I am directed to inform you that the result/mark/sheet/provisional certified/degree certificate of JADHAV JAIPRAKASH BALKRISHNA has been verified from the office record and found to be forged and fake. This is for your kind information and necessary action. Yours faithfully, Controller of Examinations Ranchi University, Ranchi.” 7. Thereafter the matter was investigated and the whole episode came to light in the year 2003 and the proceedings against the Petitioner were taken in accordance with law. In the departmental proceedings, the Inquiry Officer recorded the finding that the mark sheet and the provisional certificate dated 5th January 1987 and 12th March 1987 were “clearly forged and fake”. The Appellate Authority in fact even noticed the admission of the Petitioner that he did not dispute the fact that the certificate was false but reduced the penalty. 12 The Reviewing Authority found that the order dated 26th June 2006 passed by the Appellate Authority was not proper and therefore by exercising its power under Rule 38A which had been subsequently introduced for this purpose, reviewed the order of Appellate Authority. The Authority exercising the power of review could modify, set aside the order and reduce, enhance or set aside penalties and even pass further orders as it may deem fit and proper in the circumstances of the case. While exercising the power and after issuing notice to the Petitioner the order of dismissal from service which was passed by the Disciplinary Authority was restored and the order passed by the first Appellate Authority was recalled. 8. In light of this factual matrix of the case, we would deal with the contentions raised before us. Firstly, we cannot accept the contention of the Petitioner and which has also been rightly rejected by the Reviewing Authority that the Reviewing Authority had no power to review the order dated 26th June 2006. Rule 38A of the Rules specifically vest the authority with such powers which had been 13 introduced in the Indian Oil Corporation Conduct, Discipline and Appeal Rules, 1980 and which were effective from 1st November 1980 that is much prior to the date of taking action against the Petitioner. In view of the statutory provision, we are unable to appreciate the contention raised on behalf of the Petitioner that the Reviewing Authority had no power to review the order of Appellate Authority. 9. Great emphasis was placed by the learned Counsel appearing for the Petitioner on the circumstance that it was the Institution – Marudhar Mahavidyalaya which was responsible for duping the Petitioner and many others and the Petitioner was no way responsible for obtaining the degree which was subsequently found to be fake and false. Thus, no misconduct was attributable to the Petitioner and the alleged conduct is in no way germane to the employment as the Petitioner would have got employment even if he did not possess the degree at the initial stage. This argument is based on premise which itself has no legs to stand in the eye of law. 14 The Petitioner himself knew that he had allegedly done the B.Com. Course within one year which is not only improper but is an improbability. Furthermore, he had not attended any classes and certainly enough the degree obtained by him was not proper in any respect. These facts were well within the knowledge of the Petitioner and, therefore, before taking advantage of the same not only at the initial stage but more particularly when promotions were granted to him, he ought to have disclosed these facts. The Reviewing Authority while passing the impugned order had specfiically noticed in its order that in the application form for employment (Form No. PA-103), the Petitioner had made a declaration to the effect that all information furnished by him is true to the best of his knowledge and it will form part of basis of the contract of employment and if at any future date it is found that the information furnished was untrue or incorrect in any material respect, the contract of employment shall be voidable at the option of the Corporation. We have already referred to Clause 7(4) of the Rules which clearly postulates that furnishing false information regarding qualification at any time of employment and during the 15 course of employment will be a misconduct and could invite disciplinary action. In the reply before the authorities, the Petitioner had not denied that the B.Com. degree was fake or false. He had only tried to shift the blame to Marudhar Mahavidyalaya. 10. All the contentions raised by the Petitioner were duly considered by the Reviewing Authority in a detailed order which, in our opinion, has been based upon due application of mind. The authority also noticed “no ordinary person could believe that he could genuinely pass a B.Com. Examination in less than one year without even being able to attend the classes”. This conclusion arrived at by the Reviewing Authority does not call for any interference. These are matters of common knowledge and prudence that a Graduation course cannot be done in one year. In fact, no calendar or regulation of any of the University in the entire country has not been brought to our notice or even relied upon by the Petitioner where such a course was accepted and recognised by any competent authority including the Deemed Universities. It must also be noticed that but for his 16 graduation degree, the Petitioner could not have been given promotions in his cadre. He received not only one but three promotions on the basis of this degree and thus took full advantage of a fake certificate/degree. In the application form in fact he had stated the college name to be Ranchi University rather than the Institute – Marudhar Mahavidyalaya and had also stated in form PA 96 of the Corporation that he entered the University in January 1985 and left the University in January 1986 after passing the B.Com. Examination. Thus, the Petitioner owed complete responsibility to this statement which, in our opinion, was certainly not worthy of trust. Equally without merit is the argument that the information with regard to the Petitioner having obtained the graduation degree was not germane to the employment. It is true that the Petitioner was given employment under the sports category in Grade “A” and he was a sportsman of outstanding merit but in the reply affidavit filed on behalf of the Respondents, it has categorically been stated that the fact that the Petitioner had completed his Graduation (B.Com.) at the time of submitting an application weighed with the authorities while granting 17 him employment and in any case it was of greater emphasis and value and weighed with the authorities while giving him promotions to Grade “B”, “C” and “D” respectively. The expression “germane to employment” cannot be given a restricted meaning that it was only referred to the essential qualifications provided for appointment to the post at the entry point. It will obviously include all matters which are relevant for consideration of an applicant for appointment to the post in question. It is little hard that the Petitioner has served for so many years but fact of the matter is that this falsity and fake certificate itself was detected in the year 2003 and thereafter there has been no lapse on the part of the Respondent Corporation in initiating the proceedings and passing the order of punishment impugned in the present Writ Petition. However, it is a settled principle of law that once a person obtains employment by misrepresentation or on the basis of a fake certificate, he cannot be permitted to take benefit of such advantage merely because he has served for a considerable time. 18 11. A Division Bench of this Court in the case of Prakash Jayawant Koli vs State of Maharashtra, 2008 (2) Mh. L.J. 511, deliberated upon this issue in some detail and after referring to the different judgments of the Supreme Court on the subject, held as under :- “5. In a recent judgment of the Supreme Court in the case of A.V. Papayya Sastry and ors. vs. Government of A.P. And ors., AIR 2007 SC 1546 signifying that falsehood or fraud even vitiates judicial act, the Court held as under : “ Now, it is well settled principle of law that if any judgment and order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed : “Fraud avoids all judicial acts, ecclesiastical or temporal” It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order – by the first Court or by the final Court – has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even 19 in collateral proceedings.” In the leading case of Lazarus Estates Ltd. vs Beasley, (1956) 1 All ER 341, Lord Denning observed : (AIR ER p 345.C) “No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud”. In Duchess of Kingstone, Smith's Leading cases, 3th Edn. P. 644, explaining the nature of fraud, de Grey, C.J. Stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the Court was “mistaken”, it might be shown that it was “misled”. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the Court was imposed upon or tricked into giving the judgment”. It has been said: fraud and justice never dwell together (fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et dolus nemini patrocinari debent). 20 Allowing the appeal, setting aside the judgment of the High Court and describing the observations of the High Court as “wholly perverse”, Kuldip Singh J. stated (SCC p.5. Para 5) : “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-dogers 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.” In the above case the Court also further held that even “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.” xxxxx xxxxx xxxxx The contention that there was inordinate delay in taking the action beyond reasonable time and the proceedings were vitiated and as such the actions is vitiated and the certificate issued in favour of the petitioner 21 cannot be set aside, the petitioner has placed reliance in the case of Chandrabhan Yamaji Nandanwar vs. Director of Health Services, Maharashtra State, Bombay and ors., 1999 (1) Mh. L.J. 536. The above judgment was also referred to in the judgment in the case of Parinda Milind Keer (supra). Furthermore, it may not be permissible to this Court to follow the Division Bench decision of this Court which stare state and various judgments of the Supreme Court squarely cover the controversy in the present case. In the case of R Vishwanatha Pillai vs State of Kerala and ors., (2004) 2 SCC 105 where the Court held that the appointment obtained against reserve post by producing false caste certificate is per se non est. Further in the case of Bank of India and anr. vs. Avinash D Mandivikar and ors., 2005 (4) Mh. L.J. (SC) 409 = 2006 (1) SCC 47, the Supreme Court repelled the contention that if the certificate was obtained by fraud by the petitioner would have no relevancy and mere delay would not per se sufficient to set aside the order of the Scrutiny Committee. In this connection a reference can also be made to the decision of the Supreme Court in the case of State of Maharashtra and ors. vs. Sanjay K. Nimje, Appeal (Civil) No. 231 of 2007 decided on 16th January, 2007 [2007 (3) Mh. L.J. 795]. The petitioner has approached this Court under Article 226 of the Constitution which itself is equitable jurisdiction. One who claims equity must do equity. The petitioner invoking the extra ordinary jurisdiction of the Court 22 under Article 226 of the Costitution should approach the Court with clean hands.” 9. The above enunciated propositions of law clearly show that a person who has obtained the benefit of employment on the basis of an incorrect certificate or a certificate obtained by misrepresentation or fraud, cannot be permitted to avail the benefit thereof, once it comes to the notice of the concerned authorities. Mere fact that there is some delay in noticing the same would not give the petitioner any advantage. Furthermore the action taken by the authorities is within a reasonable period as considerable time was taken by the vigilance cell in investigating the matter and thereafter the petitioner participated in the entire proceedings to put forward his case. After appreciation of this evidence, once the Scrutiny committee has arrived at the finding of fact that the certificate was false and was not correctly obtained, there is no scope for this Court to interfere in exercise of its powers under Article 226 of the Constitution.” 12.