Civil Writ Petition No.13609 of 2010 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: September 09, 2011 Dr.Shiv Kumar Kaushik .....Petitioner VERSUS State of Haryana ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.R.K.Malik, Senior Advocate with Mr.Vijay Dahiya, Advocate, for the petitioner. Mr.Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. Whether order closing the enquiry can be withdrawn is a significant question of law, which the petitioner has raised in this writ petition. The petitioner seeks quashing of order dated 16.7.2010, whereby the respondents have withdrawn an earlier order dated 23.6.2010, whereby the charges and the enquiry against the petitioner were dropped. The petitioner has questioned this order on the ground that in the absence of power to review order exonerating the petitioner and dropping the enquiry cannot be withdrawn. Civil Writ Petition No.13609 of 2010 : 2 : The facts, noticed in brief, are that the petitioner had joined as a Medical Officer in the Health Department of Haryana on 23.4.2003. The petitioner was charge sheeted, to which he submitted his reply, when Enquiry Officer was appointed to enquire into the allegations. The petitioner claims that he was exonerated by the Enquiry Officer. The petitioner, however, was suspended on 7.11.2006 and thereafter issued a show cause notice on 15.8.2008 alongwith the dissenting note asking the petitioner as to why he should not be removed from service. The petitioner submitted detailed reply on 27.10.2008 and the respondent-Government decided to drop the proceedings and reinstated the petitioner on 24.6.2010. The order reads as under:- “Dr.Shiv Kumar Kaushik, Medical Officer, CHC Safidon (Jind) who was placed under suspension vide orders dated 6.11.2006 issued vide Endst.No.25/6/2006-4HB-I dated 7.11.2006 is hereby reinstated in service with immediate effect. 2. Further Govt. has decided to drop the proceedings against him. His posting orders will be issued later on.” Soon thereafter, the Financial Commissioner and Principal Secretary to the Government issued another order on 9.7.2010 withdrawing the above noted order dropping the proceedings, which was issued on 24.6.2010. This order is as under:- “Government vide order dated 23.6.2010 issued vide endorsement no.25/6/2006-4HB-I, dated 24/30.6.2010 in respect of Dr.Shiv Kumar Kaushik, Medical Officer, CHC Civil Writ Petition No.13609 of 2010 : 3 : Safidon (Jind) is hereby withdrawn.” The petitioner has filed this writ petition to impugn order dated 9.7.2010 mainly on the ground that order dropping the proceedings could not be withdrawn by the authorities in the absence of power of review and further that this order was passed in violation of principles of natural justice. The plea in this regard is that the order dropping the proceedings has been withdrawn without giving any opportunity to the petitioner and, thus, the order is in violation of principles of natural justice. The petitioner apparently in a very clever manner has avoided making a mention to the charges levelled against him. He has also not placed on record the findings of the Enquiry Officer. The petitioner, however, has made reference to the dissent note recorded on behalf of the Governor, whereby penalty of removal from service was proposed against the petitioner. In a communication dated 15.8.2008, it is clearly recorded that the Governor, Haryana had not agreed with the conclusion reached by the Enquiry Officer, whereby the charges were held not fully proved. As viewed by Government, the charges stood proved on the grounds mentioned in the dissent note and accordingly the penalty of removal from service was proposed. A perusal of the dissent note annexed with the proceedings would give a vague indication about the nature of allegations made against the petitioner. Petitioner is accused of having a fake M.D.Physician Degree due to which his registration by the Medical Council of India had been cancelled as was conveyed by M.C.I. through their letter dated 15.9.2006. It was accordingly viewed Civil Writ Petition No.13609 of 2010 : 4 : that the petitioner had no legal registration and hence was not eligible to hold the post of Medical Officer. The charges levelled against the petitioner, thus, held proved. The respondents otherwise have filed reply stating that petitioner has seriously misled this court and has deliberately withheld the important materials relevant to the issue. It is stated that the petitioner does not possess valid MBBS Degree, but has secured employment as Medical Officer in Haryana Medical Services on the basis of a fraudulent and fake degree. The reply filed by the respondents would disclose the gravamen of the allegations made against the petitioner. It is stated that the petitioner claims to be in possession of an MBBS Degree from SMC Medical College, Almaty, the Capital of Country Kazak. This degree was confirmed to be a fake and forged which had never been issued by the said College as was confirmed from Indian Embassy at Almaty. Second Secretary Shri Harjit Singh working in the Embassy of India at Almaty had conveyed this information to Deputy Secretary, Medical Council of India on 6/7.12.2001. This information is as under:- “On scrutiny of the fax copy of letter, purportedly sent by me on 27.7.2001, it is found to my utter surprise, that the letter itself is a forged one. The contents have been typed on a forged letter head and my signature has also been forged. As forwarded earlier, which verifying medical diploma of 9 Indian Citizen vide their letter No.14-16- 1431, dated 21.08.2001, Kazakhstan Medical University has conveyed that the Medical Diploma (EA-II-0001271) Civil Writ Petition No.13609 of 2010 : 5 : submitted by Dr.Shiv Kumar is a forged one and he never studied in Kazakhstan State Medical University.” In fact, this communication was addressed by Second Secretary of the Embassy when the petitioner had submitted documents purportedly signed by the said Secretary showing that the petitioner had a valid degree. In the replication filed by the petitioner, he has disclosed the facts which he could be expected to state in his petition. The petitioner states that he had passed diploma in Doctor of Medicine from Kazakh Medical University in the year 1996 and in this regard has placed on record copy of the certificate as Annexure P-6. As per the petitioner, he was permitted to complete one year internship by MCI which the petitioner has done at Dean Dayal Upadhaya Govt.Hospital, Delhi. Thereafter the petitioner was permanent registered with Medical Council of India as per registration certificate Annexure P-8. Going into the background of the trouble, the petitioner states that the Doctor of Medicine Diploma possessed by the petitioner was sent for verification through the Embassy of India Almaty. The Embassy, however, got it verified From Kazakhstan Medical University instead of getting it verified from Kazak Medical University, which had issued the diploma. Kazakhstan University had, thus, informed the respondents that it has awarded no degree in the name of the petitioner. On this basis, a criminal case was registered against the petitioner by the MCI, for which he was tried by Metropolitan Magistrate, Delhi. As per the petitioner, the Court did not find any prima facie case against him and has acquitted the petitioner. Civil Writ Petition No.13609 of 2010 : 6 : Here again, the petitioner is making an attempt to provide misleading information. The perusal of the order passed by the Metropolitan Magistrate, Delhi apparently shows that the petitioner was not exonerated as is being made out. What is recorded in the order is that there was some material flow during the verification of alleged document and the petitioner may not be made to suffer for that. Accordingly, the Metropolitan Magistrate was of the view that at that stage accused be set free with liberty to the police to reinvestigate or further investigate the case and also to file a fresh charge sheet. This certainly cannot be said to be an acquittal or exoneration as is being made out by the petitioner. There is yet another attempt on the part of the petitioner to either mislead or withhold or selectively disclose the information. The whole case set up by the petitioner is that the degree was got verified from Kazakhstan Medical University, whereas the petitioner had obtained this degree from Kazak Medical University. In support, the petitioner relies upon a letter dated 25.3.2000 initiated by Embassy of India Almaty, which gives an indication that the petitioner and one Dr.Gurmeet Singh had passed out from Kazakh Medical University before 1997, which was completely private University. These Universities have remained closed after divagation of U.S.S.R. During the course of arguments, learned counsel for the petitioner had placed heavy reliance on this letter to urge that the petitioner had a valid degree and it is only because the confirmation was sought from a different University that the earlier intimation was received from the Embassy. The State counsel, on the other hand, submits that this is Civil Writ Petition No.13609 of 2010 : 7 : yet another attempt on the part of the petitioner to mislead the court. The State counsel refers to a letter dated 6/7/12.2001 received from Embassy of India Almaty commenting upon this letter relied upon by the petitioner. Mr.Harjit Singh Second Secretary in this communication has clearly said that this letter (Annexure P-12) is itself a forged one and further that the contents had been typed on a forged letter head and his signatures had also been forged. Not only that, it is stated in this letter that even Kazakhstan University has conveyed that medical diploma submitted by the petitioner is a forged one and he never studied in Kazakhstan State Medical University. The verbatim contents of this communication reproduced above would show how one attempt after another is being made by the petitioner to mislead the court and to provide misleading information. Even otherwise, the petitioner clearly has an undefendable cause to make. Finding his medical degree to be false, the Medical Council of India has cancelled the registration of the petitioner besides lodging an FIR in which the order as noticed earlier was passed. This order dated 15.9.2006 is still standing and has not been withdrawn. During the course of argument, counsel for the petitioner was specifically asked if this order cancelling his registration had been withdrawn or not. I have to note with regret that the senior counsel appearing for the petitioner remained evasive and despite the query having been repeated many times, did not give any straight answer. Repeated insistence by the court got ultimately an answer that the counsel was not aware whether this order had been withdrawn by the MCI or not. Could be this was another attempt to be Civil Writ Petition No.13609 of 2010 : 8 : evasive? This was not a fair assistance, which the court certainly expect from a senior counsel. Ultimately, the case had to be adjourned with direction to the State Counsel to get an information from the MCI if this order cancelling the registration had been withdrawn or not. The State counsel then placed on record a communication from the MCI that the order cancelling the registration still has not been withdrawn. The counsel for the petitioner then confirmed this fact before the court also. Because of this conduct on the part of the petitioner, the petitioner may not deserve any relief in equity or otherwise, still I have considered the submissions made before me on behalf of the petitioner. The first submission made by the counsel is that petitioner having been exonerated and so could not have been put to prejudice by withdrawing the order without serving a show cause notice to him. In support, the counsel would reply upon the observations made in the case of Ram Parkash Vs. The State of Punjab and another 1993(1) Recent Services Judgments 446. This was a case of adverse confidential report which was expunged and subsequently reviewed. This court has observed that having once made an order in favour of the petitioner expunging the adverse remarks, the same could not be reviewed without giving him a show cause notice and a hearing. The court in this case has observed that expunging of adverse remarks had created certain rights in favour of the petitioner and those rights could not be violated without affording an opportunity of hearing to the petitioner. In the case of petitioner, one is not dealing with expunction of adverse remarks. Here the petitioner was proceeded against for a departmental action and after holding Civil Writ Petition No.13609 of 2010 : 9 : an enquiry, the petitioner was served a notice of removal from service. Those proceedings were dropped. This order has been withdrawn. In my view, the disciplinary proceedings against the petitioner were at incohate stage and have not been brought to finality. The disciplinary proceedings were still subsisting. The case of disciplinary proceedings and expunction of annual confidential report may not stand in equal footing. For processing a disciplinary action even a power of suo motu revision may be available and any order passed by punishing authority is liable to be interfered with in appeal, revision, review etc. The ratio of law in Ram Parkash's case (supra), thus, may not strictly apply to the facts of this case. Similarly, this court had viewed in case of Shishpal Vs. State of Haryana and others, 1991(3) Recent Services Judgments 379 that where the discharge order was set-aside and the petitioner was reinstated in service, then the order of reinstatement could not be reviewed as there was no provision for the same. The court took this view on the ground that there is no power of review. No doubt, there may be no specific provision providing for review in this case, but the review by the appellate authority or revision etc. either suo motu or otherwise is available in such like cases. Moreover, this does not appear to be a case of review in strict sense. In the reply, it is disclosed that the order reinstating the petitioner from suspension was issued by the State Government inadvertently, which was reconsidered and withdrawn by the State Government. It appears to be so. How can a doctor, who is accused of having a fake degree and is not having a registration with Civil Writ Petition No.13609 of 2010 : 10 : MCI be allowed to continue in service. The respondents are justified in saying that it will be illegal on the part of the State Government to allow practice of modern medicine to a person, who does not possess the basic prescribed qualification. This certainly would amount to playing with the lives of innocent people, who would approach the petitioner for treatment. Reference is then made to R.K.Gutpa Vs. Union of India 1981 (1) SLR 752, where Delhi High Court has held that review under Rule 29 of Central Civil Service (Classification, Control and Appeal) Rules, 1965 means a power to revise the order of subordinate authority and it does not embrace within it the power to review its own order. But the facts in this case are apparently distinguishable. This was a case where petitioner R.K.Gupta was exonerated after full-fledged enquiry. Finding this order to be a judicial one and that there being no specific power to review its own order conferred by the rules, it is held that President was not competent to review its own order passed under the Rules. In the present case, the petitioner may have been exonerated by the Enquiry Officer, but the disciplinary authority had not accepted this finding and had recorded a note of dissent for which even show cause notice was issued to the petitioner for his removal from service. Thus, this is not a case where the exoneration has acquired finality. Apparently due to some inadvertent error the impugned order dropping the proceedings was passed, which was withdrawn shortly thereafter. The court in the case of R.K.Gupta (supra) had rejected the contention that order exonerating an employee is not subject to review under the rules even by higher authority. Rule 29 of the Rules Civil Writ Petition No.13609 of 2010 : 11 : was noticed which gave power to the authorities to confirm, modify or set aside the order and remit the case to the authority, which had made the order for such further enquiry. It is observed that this necessarily envisaged an order of exoneration passed by subordinate authority being set aside and for holding a further enquiry. Thus, the broad proposition that the order of exoneration by subordinate authority cannot be reviewed was not accepted. As already noticed, this is not a case of review in strict sense of the terms. The order does not use the word “exoneration”. What all is recorded in the order is that the petitioner was reinstated into service and a decision on the Government to drop the proceedings. No where it is mentioned in the order that the petitioner was exonerated. It may not be out of place to notice here that a suspended employee can always be reinstated pending enquiry and mere reinstatement would not mean that the petitioner has been exonerated. The mistake appears to have been realised soon thereafter and this order was withdrawn without reinstating the petitioner. It would be open to debate if the Secretary could drop the proceedings when the dissent note was recorded on behalf of Governor, Haryana. The order dropping the proceedings does not give any indication if the same was passed after due approval and concurrence of the Head of the State/Government. Besides, the conduct of the petitioner in approaching this court with misleading information is such that this alone can be enough to deny relief to the petitioner in writ jurisdiction. A petitioner cannot be permitted to take advantage of his forgery, fabrication and falsehood. The impugned order being not strictly an order of review Civil Writ Petition No.13609 of 2010 : 12 : cannot be termed as review in strict sense to call for any interference. In R.K.Gupta's case (supra) apparently what weighed with the court was the fact that the President, who was the disciplinary authority saw no reason to disagree with the finding of the Enquiry Officer. Rather he had agreed with the said finding which had exonerated the petitioner. The court in R.K.Gupta's case (supra) found this order of the President to be an order under the provisions of 1965 Rules. In the instant case, the Governor had decided to proceed with the action against the petitioner and had not passed any order of exoneration on the ground that the charges were not proved. Once the disciplinary proceedings are commenced and had reached the stage where enquiry is completed, these must be continued either in imposing of punishment or in exoneration. The order passed by the Government, thus, was under the Punishment and Appeal Rules. So, it cannot be said that there was any order exonerating the petitioner. This aspect of the case can be viewed from another angle. The impugned order to proceed against the petitioner to remove him from service after recording note of dissent was passed by the Governor. This would be an order against which no appeal may be allowed. It may require a notice that the petitioner is accused of fraud and fabrication. He has not only obtained a fake degree but has resorted to further fabrication by forging the signatures of Secretary, which could not be disputed by the counsel for the petitioner. The letter Annexure P-12 was issued on 25.3.2000, which Civil Writ Petition No.13609 of 2010 : 13 : was highlighted by the counsel for the petitioner, whereas he has not made any reference to the communication dated 6/7.12.2001 showing that the signatures on Annexure P-12 were forged and the degree/diploma was also forged and fabricated one. The petitioner has, thus, made a clear attempt to rely on fabrication and to perpetuate the same. He has resorted to falsehood and fraud. It is said that fraud and justice never dwell together and fraud and deceit defend or excuse no man. Reference here can be made to the case of Kuldip Gandotra Vs.Union of India & Ors., 136 (2007) Delhi Law Times 44 (DB) to notice that courts have always exercised their inherent powers whenever it is brought to their notice that the fraud has been practised as the fraud strikes at the very root of an order/judgment and effects solemnity, and the Rule of Law. It is said that `fraud' is an extrinsic, collateral act, which vitiates the most solemn proceedings of courts of justice. As per Lord Coke, it avoids all judicial acts, ecclesiastical and temporal. What is to be done when fraud is noticed or observed by the Court? In this regard, reference can be made to para 825, American Jurisprudence 2nd Edn.Vol.46. It is observed that:- ““There are many cases in which equitable relief from a judgment may be obtained because of fraud by which the court has been impressed upon, has been made an instrument of injustice and has been misled into a false or improper judgment. Indeed, the connection of fraud with a judgment constitutes one of the chief causes for interference by a court of equity with the operation of a Civil Writ Petition No.13609 of 2010 : 14 : judgment. The power of courts of equity in granting such relief is inherent, and frequent applications for equitable relief against judgments on this ground were made in equity before the practice of awarding new trials was introduced into the courts of common law. Where fraud is involved, it has been held, in some cases, that a remedy at law by appeal, error, or certiorari does not preclude relief in equity from the judgment. Nor, it has been said, is there any reason why a judgment obtained by fraud cannot be the subject of a direct attack by an action in equity even though the judgment has been satisfied.” One would often hear loud calls in the corridors of the Courts that those who come to the court must come with clean hands. The courts are meant for imparting justice. A person, who has obtained advantage by misusing the process of the court or abusing the process of the court, cannot be allowed to retain his illegal gains indefinitely. In S.P.Chengalvaraya Naidu V. Jagannath (1994) 1 SCC 1 , the Hon'ble Supreme Court made observations in this regard by saying:- “property-grabbers, 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.” Even in A.V.Papayya Sastry and Ors. Vs. Government Civil Writ Petition No.13609 of 2010 : 15 : of A.P. And Ors., AIR 2007 Supreme Court 1546, the Hon'ble Supreme Court has clearly observed that it is well settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Chief Justice Edward Coke, as already noted, has proclaimed long ago that “fraud avoids all judicial acts, ecclesiastical or temporal. While defining fraud, it may be observed that it is an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is, thus, is an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. This act would be enough to decline relief to the petitioner. I do not find any cause or reason to interfere in the impugned order. The