1

A.F.R.

Court No.39

Case :- SPECIAL APPEAL DEFECTIVE No. - 799 of 2013

Appellant :- State Of U.P . Thru' Principal Secry. And 4 Others

Respondent :- Durvijay Singh

Counsel for Appellant :- A.K Roy,S.C.

Counsel for Respondent :- R.N. Singh

Hon'ble Dilip Gupta, J.

Hon'ble Vinod Kumar Misra, J.

This Special Appeal has been filed against the judgment dated 9

April 2013 of a learned Judge of this Court by which Writ Petition No.

17742 of 2009 that was filed by the sole respondent in this Special

Appeal to assail the orders rejecting the representations, was allowed and

a direction was issued to the respondents for giving light duty, as was

advised by the Medical Board, to the writ petitioner.

The writ petitioner-Durvijay Singh had raised a grievance that

though he was working as a Warder in District Jail at Gorakhpur, he was

not being paid salary from 13 December 2007. Writ Petition No. 11810 of

2008 that was filed by him for claiming the aforesaid relief was dismissed

by a learned Judge of this Court on 7 March 2008 for the reason that a

second petition for the same cause of action would not be maintainable

and also for the reason that a statement had made by the learned Standing

Counsel that the writ petitioner had obtained employment on the basis of

a fake appointment letter and an enquiry was pending before the CBCID.

In the Special Appeal that was filed by Durvijay Singh to assail this

order, a statement was made on behalf of the writ petitioner that he had

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filed a representation before the Superintendent of District Jail on 7

January 2008 in regard to the grievance that was made in the writ

petition. The judgment of the learned Judge was substituted by the

Division Bench by directing the respondents to decide the representation.

The writ petitioner filed a comprehensive representation on 22 May 2008

which was rejected by the Senior Superintendent of District Jail,

Gorakhpur by order dated 4 June 2008. This order was assailed in Writ

Petition No.30630 of 2008, which petition was dismissed on the ground

that the writ petitioner had an alternative remedy. The writ petitioner then

filed a representation before the Inspector General (Jail) on 13 August

2008. This representation was transferred to the Deputy Inspector General

(Prison) and was ultimately rejected by order dated 26 September 2008.

These orders dated 4 June 2008 and 26 September 2008 rejecting the

representations filed by the writ petitioner were assailed in Writ Petition

No.17742 of 2009, which petition has been allowed by the impugned

judgment.

The writ petitioner had alleged that he had been appointed as a

Warder by order dated 24 December 1986 at District Jail, Fatehgarh and

posted as a Warder at Sampurnanand Shivir, Sitarganj on 7 January 1987

from where he was transferred to Central Jail at Varanasi on 22 March

1990, then transferred to District Jail, Basti on 24 March 1990 and

ultimately transferred to District Jail at Gorakhpur on 29 April 1995.

Three Warders namely, Shatrujeet Shahi, Santosh Kumar Singh and

Umakant, at the time of joining at District Jail at Gorakhpur, were asked

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to write applications by the Jailor but as they could not even write the

applications, inquiries were made and thereafter on 31 May 2007, a First

Information Report under Sections 419, 420, 467 and 471 of the Indian

Penal Code was lodged at Police Station Gorakhpur which was registered

as Case Crime No.366 of 2007 against these persons for seeking

appointments on the basis of forged orders. Inquiries were also made

against other Warders posted at Gorakhpur regarding their appointments/

postings. A letter dated 1 June 2007 was sent to the Appointing Authority

of the petitioner mentioned in the service book, namely the Senior

Superintendent Central Jail, Fatehgarh, seeking information regarding the

appointment order of the petitioner. In reply, the Senior Superintendent,

Fatehgarh sent a communication dated 2 June 2007 that the writ

petitioner and 13 other persons, who were working in the Central Jail,

Gorakhpur as Warders, had never been appointed in the Central Jail,

Fatehgarh. In the appointment order and the service book of the writ

petitioner, it was mentioned that he had joined as a Warder on 7 January

1987 at Sampurnanand Shivir at Sitarganj and that he had been granted an

annual increment while he was working from 7 January 1987 to 22 March

1990 at that place. Information was, therefore, also sought from the

Senior Superintendent, Sampurnanand Shivir at Sitarganj regarding this

fact. In response thereto, by letter a dated 1 September 2007, information

was provided that the writ petitioner had never joined as a Warder nor

was he ever posted over there. On further inquiries, it was found that the

writ petitioner had submitted forged documents regarding joining and

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working as a Warder and the GPF passbook, LPC, service book and the

appointment order were all forged documents. In fact, there were 35 other

Warders who had submitted forged documents. A First Information

Report was, therefore, lodged against the writ petitioner under Sections

419, 420, 467 and 471 of the Indian Penal Code. It is stated that when

these facts came to the notice of the authorities, the writ petitioner and

other Warders, whose appointments were found to be forged, attacked the

officer at his residence in the night of 12/13 June 2007 and bombs were

also thrown as a result of which another First Information Report under

Section 307 of the Indian Penal Code was also lodged which was

registered as Case Crime No.402 of 2007.

It is on a consideration of the aforesaid facts that the first

representation filed by the writ petitioner was rejected by the Senior

Superintendent by order dated 4 June 2008. The subsequent

representation filed pursuant to the order dated 3 July 2008 passed in Writ

Petition No.30630 of 2008 was also rejected by the Deputy Inspector

General (Prison) by order dated 27 September 2008. These orders were

assailed in Writ Petition No.17742 of 2009. This petition was allowed by

the learned Judge on 9 April 2013 with the following observations:-

“Thus from the documents on record, it will be

seen that even when the case was being contested

before the learned Single Judge in writ petition

no.26390 of 2003, which was disposed of by order

dated 26.4.2005, it was never the case of the

respondents that the petitioner had obtained

appointment by forged documents. Even in the Special

Appeal no such objection was taken by the

respondents. The Division Bench had allowed the

Special Appeal with a direction to the respondents to

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consider the representation of the petitioner regarding

his joining and to pay his salary as he had suffered

paralysis and had become disabled. The Medical

Board had also expressed the view that heavy physical

work should not be taken from the petitioner and only

light duty should be taken from the petitioner. Learned

Single Judge while deciding the writ petition no.26390

of 2003 had also directed that the petitioner shall be

immediately taken back on duty and given light

physical work as opined by the Medical Board.

Therefore, the question that the very appointment of

the petitioner was obtained by practising fraud was

never taken before any Court. This question has been

raised for the first time in the impugned orders dated

4.6.2008 and 26.9.2008 while rejecting the

representations of the petitioner for being taken back

on duty. Even if it is assumed that the appointment of

the petitioner was obtained by practising fraud his

services should not have been terminated without

holding proper departmental enquiry giving the

petitioner full and adequate opportunity to defend

himself. This has not been done. Therefore, the

impugned orders dated 26.9.2008 and 4.6.2008 are not

sustainable in law and are accordingly quashed.

The writ petition is allowed.

The respondents are directed to take a decision

for giving the petitioner light duty as advised by the

Medical Board. The decision in this regard will be

taken within a period of one month from the date a

certified copy of this order is received by the

Competent Authority.”

It needs to be stated that Writ Petition No.26390 of 2003 had

earlier been filed by the writ petitioner as punishment of stoppage of one

increment was imposed upon the petitioner. The writ petition was

disposed of on 26 April 2005 with a direction that since the writ

petitioner had been declared fit by the Medical Board, he would be

entitled to perform work and would also be paid salary. A further

direction was issued that the writ petitioner should be taken on duty and

offered a position which may not adversely affect his health.

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Learned Standing Counsel appearing for the appellants has

submitted that as the writ petitioner had submitted a forged appointment

order dated 24 December 1986 at District Jail Fatehgrah and was posted

as a Warder on 7 January 1987 at Sampurnanand Shivir at Sitarganj and

had also submitted fake joining reports and transfer orders while

submitting his joining at Gorakhpur, the representations filed by the writ

petitioner had rightly been rejected but the learned Judge failed to take

into consideration these facts. It is his contention that it is only in 2007

that facts regarding forged appointment order/transfer orders came to the

knowledge of the authorities and, therefore, these facts could not have

been brought to the notice of the Court in the earlier Writ Petition

No.26390 of 2003 filed by the writ petitioner that was decided on 26

April 2005. However, the Court had been informed by the learned

Standing Counsel when Writ Petition No.11810 filed by the writ

petitioner was being decided on 7 March 2008 that the writ petitioner had

obtained employment on the basis of the forged appointment letter and

this fact was also noticed by the Division in its judgment dated 7 May

2008 in Special Appeal Defective No.423 of 2008 which was filed

against the judgment dated 7 March 2008. It is, therefore, the submission

of the learned Standing Counsel that the learned Judge was not justified

in observing in the impugned judgment that even in the Special Appeal

no objection was raised by the learned Standing Counsel.

Learned counsel for the writ petitioner, however, submitted that the

allegations of submitting forged documents/transfer orders by the writ

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petitioner are without any basis and in this connection learned counsel

has relied upon the entries made in the service book. It is his contention

that false allegations have been made against the writ petitioner only for

the reason that he had earlier filed writ petition which was allowed and a

direction was issued for payment of salary to him. Learned counsel

submitted that it was not possible for the department to make any

allegations about the submission of forged documents without holding a

disciplinary enquiry. Learned counsel for the writ petitioner also

contended that the Special Appeal would not be maintainable as it has

been filed against an appellate order.

We have considered the submissions advanced by the learned

counsel for the parties.

The contention of the appellants is that the writ petitioner had

never been appointed as a Warder and it is only on the basis of a forged

appointment order that he claims that he was initially appointed as a

Warder at District Jail Fatehgarh and posted at Sampurnanand Shivir in

Sitarganj on 7 January 1987 where he worked upto 22 March 1990. On

inquiries, it was found that neither any appointment order was issued nor

he had actually joined or worked at Sitarganj and it is only on the basis of

forged transfer orders that he subsequently joined at the other places. In

the supplementary affidavit, details have been given regarding the forged

entries made in the service book submitted by the writ petitioner.

Paragraphs 19 to 25 which are relevant are reproduced below:

“19.That as shown in forged service book at page 16

the first appointment of respondent no.1 is made by

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Senior Superintendent Central Jail, Fatehgarh vide

order no.165 dated 24.12.1986 page no.1107/Niyukti

dated 28.12.1986 and on 7.1.1987 was shown to have

joined at Sampurnanand Shivir Sitarganj, Nainital

whereas on the verification of original record page

110 Order No.165 dated 1.4.1986 in which it is stated

that “Shri Cheda Lal, Reserve Bandi Rakshak ko

Reserve Pradhan Bandi Rakshak Pad Par …. Ankit

Ho.”. Hence on verification the respondent no.1 is not

stated to have been appointed as Bandi Rakshak and

the documents, service book are found to be forged.

Photostat copy of Order No.165 dated 1.4.1986 is

annexed.

20.That on page 63 of Guard File vide letter

No.590, Senior Superintendent District Jail,

Gorakhpur has written a letter to Senior

Superintendent, Central Jail, Fatehgarh for enquiry

and verification of appointment of Bandi Rakshak.

Photostat copy of Page 63 of Guard File is annexed.

21.That at page 88 of Guard File there is a report

regarding enquiry of appointment of Bandi Rakshak.

Letter was sent by Senior Superintendent Central Jail,

Fatehgarh to Senior Superintendent, District Jail,

Gorakhpur. The Senior Superintendent, Central Jail,

Fatehgarh after verifying the records submitted that as

per Register of Adhisthan no such orders of

appointment have ever been passed. Photostat copy of

letter No.532 dated 2.6.2007, stating details of forged

appointments of Bandi Rakshak as enquired vide

Letter no.2.6.2007 is annexed.

22.That vide letter No.269-70 dated 13.8.2007,

Senior Superintendent District Jail, Gorakhpur has

written a letter to Senior Superintendent,

Sampurnanand Shivir Sitarganj, Nainital to verify the

entries from service record of the alleged/forged Bandi

Rakshak including that of respondent no.1. Photostat

copy of letter dated 13.8.2007 is annexed.

23.That Senior Super Sampurnanand Shivir

Sitarganj, Uttarakhand vide letter dated 1.9.2007

confirmed the forged entires in service records clearly

stating therein. Photostat copy of page No246 is

annexed.

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24.That is is relevant to submit here that if the

respondent no.1 is stated to have started his services

from Fatehgarh and then from Sitarganj there ought to

have been G.P.F. pass book or payment of salary

record but when payment register was perused from

1986 onwards there is no entry of payment either of

Rs.50/- as contribution towards G.P.F. nor there is

salary register that of the respondent no.1 are forged

and fabricated. Photostat copy of pay bill/salary

register from 1986 onwards is annexed.

25.That even in form-1 Ledger showing the

contribution of an employee towards G.P.F. there is no

entry of that of respondent no.1 or other Bandi

Rakshak whose appointments are based on forged and

fabricated documents. Photostat copy of Form-1

Ledger for the year 1987 onwards is annexed.”

Learned counsel for the writ petitioner, on repeated queries, could

not place any document which would show that salary was ever paid to

the writ petitioner during the period he claims that he had worked prior to

his posting at Gorakhpur.

The order dated 4 June 2008, by which the representation filed by

the writ petitioner on 22 May 2008 pursuant to the direction issued by a

Division Bench of this Court in the Special Appeal filed by the writ

petitioner was rejected, mentions the facts which have been narrated

above. The decision dated 27 September 2008 by which the second

representation was decided has also noticed these facts. These facts were

certainly required to be taken into consideration by the learned Judge but

all that has been observed is that a new case had been taken up that the

writ petitioner had obtained appointment on the basis of forged

documents. In this connection, the learned Judge also observed that when

Writ Petition No.26390 of 2003 was disposed of on 26 April 2005, the

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respondents had not raised any plea about forged appointment orders and

even in the Special Appeal, such objection was not taken. It needs to be

noted that it is only in 2007 when facts came to the notice of the

department that the writ petitioner had managed to get appointment by

producing a forged appointment order and, therefore, such a plea could

not have been taken by the appellants in response to the earlier writ

petition filed by the writ petitioner in 2003 which was decided on 26

April 2005. However, these facts had been brought to the notice of the

Court when Writ Petition No.11810 of 2008 was being decided as is clear

from the judgment dated 7 March 2008 which is reproduced below :

“Heard learned counsel for the parties.

Prayer of the petitioner in the present writ

petition is to issue a writ order or direction in the

nature of mandamus commanding the respondents to

permit the petitioner to discharge his duties on the

post of Bandi Rakshak in District Karagar, Gorakhpur

and to release his salary month to month without any

break.

Petitioner claims that he is Bandi Rakshak. He

had an attack of paralysis but subsequently he had

recovered from the same but even then duties were not

assigned to him and he was not paid salary w.e.f.

23.4.2003. Petitioner had earlier filed a Civil Misc.

Writ Petition No.26390 of 2003. The said writ petition

was decided vide judgment and order dated 26.4.2005

and the following directions were issued :-

(i)That the petitioner be paid full salary for

the period of suspension as per decision of the

appellate authority within a period of three

months from the date of the production of the

certified copy of the order; and

(ii)That the petitioner shall immediately be

taken on duty and offered a position which may

not adversely affect his health at the discretion

of the Senior Superintendent of District Jail,

Gorakhpur and be paid his salary.

A perusal of the aforesaid judgment and order

of the Court indicates that the second direction was

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issued by the Court after considering the grievance of

the petitioner that he has not been allowed to resume

duties w.e.f. 23.4.2003. This is precisely the grievance

of the petitioner in the writ petition also. It is

acknowledged principle of law that a person cannot

maintain successive writ petitions with regard to the

same grievance or the cause of action. With regard to

the grievance of not assigning duties w.e.f. 23.4.2003

this Court had previously issued adequate directions

for the redressal of the same and therefore the prayer

to this effect made in the instant writ petition is

nothing but an abuse of the process and is

misconceived.

It will not be out of context to mention here

that the learned Standing Counsel on the basis of

the instructions has also pointed out that the

petitioner and 12 others persons are said to have

worked as Bandi Rakshak on the basis of the fake

appointment letters and in that connection an

enquiry is pending before the CBCID. Be as it may

be, in view of the aforesaid facts and circumstance, no

comments are necessary on the above aspect of the

matter.

The second writ petition raising the same

grievance is not maintainable. The writ petition is

accordingly dismissed with costs.”

(emphasis supplied)

The Division Bench, while deciding Special Appeal Defective

No.423 of 2008 on 7 May 2008 that was filed to assail the aforesaid

judgment dated 7 March 2008, also noticed this fact and the judgment is

reproduced below:

“1. Heard Sri Rajesh Kumar in support of this appeal.

Sri Grish Upadhyay, learned Standing Counsel for the

State of U.P. appears for the respondents.

2.The appellant is working as a Bandi Rakshak

(Warder) in District Jail at Gorakhpur. It is the

grievance of the appellant that he is not being paid his

salary from 13.12.2007. The appellant filed a

petition which has been dismissed by the learned

Single Judge on the basis of a statement made by

the learned Standing Counsel for the State of U.P.

that the appellant had obtained his employment on

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the basis of fake appointment letter. Sri Rajesh

Kumar, learned counsel for the appellant, denies this

allegation. In any case he submits alternatively that the

appellant has made a representation to the

Superintendent of District Jail on 7.1.2008 for

allowing him to join back and to pay his salary. The

appellant has been working in the jail since 1987.

Subsequent to his joining, it appears that he has

suffered paralysis and he is somewhat a disabled

person.

3. The authorities of the respondents must take a

proper view of the matter. We expect them to decide

the representation within three weeks from the date of

receipt of a copy of this order. This order will be

substituted in place of the order passed by learned

Single Judge.

4. With this order, this appeal stands allowed to the

extent indicated above.”

(emphasis supplied)

What, therefore, transpires from the records and the averments

made in the affidavit is that :

(i)In the service book at page 16, the first appointment of the

writ petitioner is shown to have been made by the Senior

Superintendent Central Jail, Fatehgarh vide order no.165 dated 24

December 1986 and on 7 January 1987 he is shown to have joined

at Sampurnanand Shivir Sitarganj, Nainital whereas on verification

of the original record, Order No.165 dated 1 April 1986 mentions

that 'Shri Cheda Lal, Reserve Bandi Rakshak ko Reserve Pradhan

Bandi Rakshak Pad Par Ankit Ho';

(ii)The Senior Superintendent, Central Jail, Fatehgarh after

verifying the records submitted that as per 'Register of Adhisthan'

no such appointment had ever been made;

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(iii)The Senior Super Sampurnanand Shivir Sitarganj,

Uttarakhand vide letter dated 1 September 2007 confirmed the

forged entires in the service records;

(iv)If the writ petitioner had started his services from Fatehgarh

and then from Sitarganj there should have been G.P.F. pass book or

payment of salary record but when the department perused the

payment register from 1986 onwards, it was found that there is no

entry of payment of Rs.50/- as contribution towards G.P.F. The

Salary Register of the writ petitioner was, therefore, found to be

forged and fabricated; and

(v)Even in Form-1 Ledger showing the contribution of an

employee towards G.P.F., there is no entry of the writ petitioner or

other Bandi Rakshak whose appointments are, therefore, based on

forged and fabricated documents.

It has, therefore, to be seen whether the impugned orders required

any interference when nothing substantial had been brought on record by

the learned counsel for the writ petitioner to controvert the findings

recorded in the orders rejecting the representations regarding submission

of fake appointment order and joining reports, except reliance on the

entries made in the service book.

The Supreme Court in R. Vishwanatha Pillai Vs. State of Kerala

1

observed that appointment to a post on the basis of forged documents is

void and non est in the eye of law and the right to salary can only flow

1(2004) 2 SCC 105

14

from a valid and legal appointment. The Supreme Court further observed

that a person who obtains appointment on the basis of a forged

appointment order does not deserve any sympathy or indulgence from the

Court as a person who seeks equity must come with clean hands. The

observations are reproduced below :

“19.It was then contended by Shri Ranjit Kumar,

learned Senior Counsel for the appellant that since the

appellant has rendered about 27 years of service, the

order of dismissal be substituted by an order of

compulsory retirement or removal from service to

protect the pensionary benefits of the appellant. We do

not find any substance in this submission as well. The

rights to salary, pension and other service benefits are

entirely statutory in nature in public service. The

appellant obtained the appointment against a post

meant for a reserved candidate by producing a false

caste certificate and by playing a fraud. His

appointment to the post was void and non est in the

eye of the law. The right to salary or pension after

retirement flows from a valid and legal

appointment. The consequential right of pension

and monetary benefits can be given only if the

appointment was valid and legal. Such benefits

cannot be given in a case where the appointment

was found to have been obtained fraudulently and

rested on a false caste certificate. A person who

entered the service by producing a false caste

certificate and obtained appointment for the post

meant for a Scheduled Caste, thus depriving a

genuine Scheduled Caste candidate of appointment

to that post, does not deserve any sympathy or

indulgence of this Court. A person who seeks equity

must come with clean hands. He, who comes to the

court with false claims, cannot plead equity nor would

the court be justified to exercise equity jurisdiction in

his favour. A person who seeks equity must act in a

fair and equitable manner. Equity jurisdiction cannot

be exercised in the case of a person who got the

appointment on the basis of a false caste certificate

by playing a fraud. No sympathy and equitable

consideration can come to his rescue. We are of the

view that equity or compassion cannot be allowed to

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bend the arms of law in a case where an individual

acquired a status by practising fraud."

(emphasis supplied)

This decision was followed by the Supreme Court in Bank of

India & Anr. Vs. Avinash D. Mandivikar & Ors

2

. The Supreme Court

further observed that fraud and collusion vitiate even the most solemn

proceedings in any civilised system of jurisprudence and that the very

basis of an appointment obtained by fraud collapses and the appointment

is no appointment in the eye of law. The observations are as follows:

“11.…............. The matter can be looked into

from another angle. When fraud is perpetrated the

parameters of consideration will be different. Fraud

and collusion vitiate even the most solemn

proceedings in any civilized system of jurisprudence.

…..........”

In State of Manipur & Ors. Vs. Y. Token Singh & Ors.

3

, the

Supreme Court observed that if the offer of appointment itself is a forged

document, the State cannot be compelled to pay salary to the appointee.

The relevant observations are :-

“17.If the offers of appointments issued in favour

of the respondents herein were forged documents,

the State could not have been compelled to pay

salaries to them from the State exchequer. Any

action, which had not been taken by an authority

competent therefor and in complete violation of the

constitutional and legal framework, would not be

binding on the State. In any event, having regard to

the fact that the said authority himself had denied to

have issued a letter, there was no reason for the State

not to act pursuant thereto or in furtherance thereof.

The action of the State did not, thus, lack bona fide.

18.Moreover, it was for the respondents who

had filed the writ petitions to prove existence of

legal right in their favour. They had inter alia

2(2005) 7 SCC 690

3(2007) 5 SCC 65

16

prayed for issuance of a writ of or in the nature of

mandamus. It was, thus, for them to establish

existence of a legal right in their favour and a

corresponding legal duty in the respondents to

continue to be employed. With a view to establish

their legal rights to enable the High Court to issue a

writ of mandamus, the respondents were obligated to

establish that the appointments had been made upon

following the constitutional mandate adumbrated in

Articles 14 and 16 of the Constitution of India. They

have not been able to show that any advertisement had

been issued inviting applications from eligible

candidates to fill up the said posts. It has also not been

shown that the vacancies had been notified to the

employment exchange.

….............

22.The respondents, therefore, in our opinion, were

not entitled to hold the posts. In a case of this nature,

where the facts are admitted, the principles of

natural justice were not required to be complied

with, particularly when the same would result in

futility. It is true that where appointments had been

made by a competent authority or at least some steps

have been taken in that behalf, the principles of

natural justice are required to be complied with, in

view of the decision of this Court in Murugayya

Udayar (1991) Supp 1 SCC 331.”

(emphasis supplied)

In this view of the matter, when the writ petitioner had produced

forged appointment orders/transfer orders and nothing has been pointed

out to controvert the finding recorded in the impugned order, the writ

petitioner was not entitled to the grant of any relief under Article 226 of

the Constitution. The learned Judge was, therefore, not justified in issuing

a direction to provide light duty to the writ petitioner after setting aside

the orders rejecting the representations.

The next issue that arises for consideration is whether any detailed

enquiry was required to be held for compliance of the principles of

natural justice.

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In the present case, no punitive order had been passed against the

writ petitioner. The case of the appellants is that when the writ petitioner

came to know that the department had found out that the writ petitioner

had produced a fake appointment order and subsequent transfer orders

and that an FIR had also been lodged, he stopped reporting for duty and

subsequently filed representations for payment of salary. These

representations have been rejected. It is in this light that it has to be

examined whether any disciplinary enquiry was required to be conducted.

It cannot be doubted that the principles of natural justice cannot be

put into a strait-jacket formula and that principles cannot be applied in a

vacuum without reference to the relevant facts and circumstances of the

case. This is what has been held by the Supreme Court in K.L. Tripathi

Vs. State Bank of India & Ors.

4

; N.K. Prasad Vs. Government of

India & Ors.

5

; State of Punjab Vs. Jagir Singh

6

; Karnataka SRTC

Vs. S.G. Kotturappa

7

and in Viveka Nand Sethi Vs. Chairman, J&K

Bank Ltd.

8

.

In Union of India Vs. Tulsiram Patel

9

, the Supreme Court

observed :

“Though the two rules of natural justice,

namely, nemo judex in causa sua and audi alteram

partem, have now a definite meaning and connotation

in law and their content and implications are well

understood and firmly established, they are

nonetheless not statutory rules. Each of these rules

yields to and changes with the exigencies of different

situations. They do not apply in the same manner to

4AIR 1984 SC 273

5(2004) 6 SCC 299

6(2004) 8 SCC 129

7(2005) 3 SCC 409

8(2005) 5 SCC 337

9AIR 1985 SC 1416

18

situations which are not alike. These rules are not cast

in a rigid mould nor can they be put in a legal

straitjacket. They are not immutable but flexible.”

It is equally well settled that the principles of natural justice must

not be stretched too far and in this connection reference can be made to

the decisions of the Supreme Court in Sohan Lal Gupta VS. Asha Devi

Gupta

10

; Mardia Chemicals Ltd. Vs. Union of India

11

and Canara

Bank Vs. Debasis Das

12

.

Wade ‘On Administrative Law’ 5

th

Edition at pages 472-475 has

observed that it is not possible to lay down rigid rules as to when the

principles of natural justice are to apply nor it is possible to define their

scope and extent and everything must depend on the subject-matter. The

application of principles of natural justice, resting as it does upon

statutory implication, must always be in conformity with the scheme of

the Act and with the subject-matter of the case. In the application of the

concept of fair play there must be real flexibility. There must also have

been some real prejudice to the complainant; there is no such thing as a

mere technical infringement of natural justice.

The Supreme Court in Mohd. Sartaj & Anr. Vs. State of U.P. &

Ors.

13

, after considering a number of its earlier decisions, made the

following observations with regard to the requirement of giving notice

and the same are as follows :-

“In M.C. Mehta v. Union of India, 1999 (6)

SCC 237, this Court has laid down that there can be

10(2003) 7 SCC 492

11AIR 2004 SC 2371

12AIR 2003 SC 2041

13AIR 2006 SCW 399

19

certain situation in which an order passed in violation

of natural justice need not be set aside under Article

226 of the Constitution of India. For example, where

no prejudice is caused to the person concerned

interference under Article 226 is not necessary.

In the case of Aligarh Muslim University v.

Mansoor Ali Khan, AIR 2000 SC 2783, this Court

considered the question whether on the facts of the

case the employee can invoke the principle of natural

justice and whether it is a case where, even if notice

has been given, result would not have been different

and whether it could be said that no prejudice was

caused to him, if on the admitted or proved facts grant

of an opportunity would not have made any

difference. The Court referred to the decisions

rendered in M.C. Mehta v. Union of India (supra), the

exceptions laid down in S.L. Kapoor's case (supra)

and K.L. Tripathi v. State Bank of India AIR 1984 SC

273, where it has been laid down that not mere

violation of natural justice but de facto prejudice

(other than non-issue of notice) has to be proved. The

Court has also placed reliance in the matter of S.K.

Sharma v. State Bank of Patiala, 1996 (3) SCC 364,

and Rajendra Singh v. State of M.P. 1996 (5) SCC

450, where the principle has been laid down that there

must have been some real prejudice to the

complainant. There is no such thing as merely

technical infringement of natural justice. The Court

has approved this principle and examined the case of

the employee in that light. In Viveka Nand Sethi v.

Chairman, J.&K. Bank Ltd. and others (2005) 5 SCC

337, this Court has held that the principles of natural

justice are required to be complied with having regard

to the fact-situation obtaining therein. It cannot be put

in a straitjacket formula. It cannot be applied in a

vacuum without reference to the relevant facts and

circumstances of the case. The principle of natural

justice, it is trite, is no unruly horse. When facts are

admitted, an enquiry would be an empty formality.

Even the principle of estoppel will apply. In another

recent judgment in the case of State of U.P. v. Neeraj

Awasthi & others, JT 2006 (1) SC 19, while

considering the argument that the principle of natural

justice had been ignored before terminating the service

of the employees and, therefore, the order terminating

the service of the employees was bad in law, this

Court has considered the principles of natural justice

and the extent and the circumstances in which they are

20

attracted. ………….. Applying this principle, it

could very well be seen that discontinuation of the

service of the appellants in the present case was not

not a punitive measure but they were discontinued

for the reason that they were not qualified and did

not possess the requisite qualifications for

appointment.

……….. In view of the basic lack of

qualifications, they could not have been appointed

nor their appointment could have been continued.

Hence the appellants did not hold any right over

the post and, therefore, no hearing was required

before the cancellation of their services. ….........”

(emphasis supplied)

It is clear from the aforesaid decision of the Supreme Court that the

application of the principles of natural justice depends upon the relevant

facts and circumstances of the case and whenever a complaint is made

about its violation, the Court has to decide whether the observance of that

Rule was necessary for a just decision on the facts of the case. The

Supreme Court also noticed that there can be a situation where persons

who are not even eligible for being appointed are appointed and in such a

situation, if such persons are discontinued it would not be a punitive

measure because they have been discontinued as they had not been

appointed. In fact, it has been hold, that they do no hold any right over the

post and, therefore, not entitled for any hearing. The decision also holds

that where facts are admitted, an enquiry would be an empty formality.

It also needs to be remembered that the Supreme Court in

Kendriya Vidyalaya Sangathan & Ors. Vs. Ajay Kumar Das & Ors.

14

considered the question of observance of principles of natural justice in a

case where the appointments had been made by an Assistant

14(2002) 4 SCC 503

21

Commissioner after his services had been terminated. It was held that

appointments orders were not valid orders and if the appointment orders

were a nullity then there was no question of observing the principles of

natural justice and that it would be futile to contend that notices should

have been served.

The Supreme Court in S.P. Chengalvaraya Naidu (dead) by

L.Rs. Vs. Jagannath (dead) by L.Rs. & Ors.

15

also refused to interfere

on the ground of breach of principles of natural justice and the portion of

the judgment is reproduced below :

“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, 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, 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)

In the facts and circumstances of the case, it is apparent that

sufficient enquiries had been conducted by the department to arrive at a

conclusion that the writ petitioner had submitted fake appointment order

and transfer orders to gain appointment and continue in service. Nothing

has been pointed out by learned counsel for the writ petitioner to

controvert these findings except placing reliance on the service book but,

as noticed above, even the service book has been found to have been

prepared on the basis of these forged documents. The case of the

15(1993) 6 SCC 331

22

appellants is that the writ petitioner on his own stopped reporting for duty

when it came to his knowledge that the department had found out that he

had obtained appointment on the basis of a fake order and that an FIR had

been lodged against him. It is then that he filed a writ petition for

payment of salary. The writ petition was dismissed but in Special Appeal

the only direction that was given was to decide his representation. The

representation was decided by a detailed order dated 4 June 2008. This

order was challenged by the writ petitioner by filing Writ Petition

No.30630 of 2008 which was dismissed on 3 July 2008 and what was

observed by the Court also needs to be reproduced :

“Pursuant to the directions of this Court,

representation of the petitioner has been rejected by

order dated 04.06.2008 which has been passed by the

Senior Superintendent District Jail, Gorakhpur. A

very detailed finding has been recorded in the

impugned order and if they are accepted then they

are very serious in nature. The kind of charges

which are against the petitioner on being found to be

correct are to disturb the system itself.”

(emphasis supplied)

The subsequent representation filed by the writ petitioner was also

rejected by order dated 27 September 2008. In Mohd. Sartaj (supra), the

Supreme Court observed that discontinuation of the service of an

employee, in such circumstance, would not amount to a punitive measure

as he had claimed appointment on the basis of a fake order and, therefore,

no hearing was required to be given.

In such circumstances and in view of the aforesaid decisions of the

Supreme Court, holding of a disciplinary enquiry against the writ

23

petitioner was really not required and would have been merely an empty

formality.

The last contention of learned counsel for the writ petitioner that

the Special Appeal would not be maintainable as it has been filed against

the appellate order is without any basis as learned counsel for the writ

petitioner has not been able to point out any statutory rule under which

the appeal was filed before the Deputy Inspector General. It is clear that

only a representation was filed which was rejected.

It is, therefore, not possible to sustain the judgment and order dated

9 April 2013 passed by the learned Judge by which the orders rejecting

the representations have been set aside and a direction has been issued to

the respondents to take a decision for giving light duty to the writ

petitioner, as advised by the Medical Board.

The Special Appeal is, accordingly, allowed. Consequently, Writ

Petition No.17742 of 2009 filed by Durvijay Singh stands dismissed.

Date:21.07.2015

SK

(Dilip Gupta, J.)

(Vinod Kumar Misra, J.)

24

Court No.39

Civil Misc. Delay Condonation Application No. 233088 of 2013

In

Case :- SPECIAL APPEAL DEFECTIVE No. - 799 of 2013

Appellant :- State Of U.P . Thru' Principal Secry. And 4 Others

Respondent :- Durvijay Singh

Counsel for Appellant :- A.K Roy,S.C.

Counsel for Respondent :- R.N. Singh

Hon'ble Dilip Gupta, J.

Hon'ble Vinod Kumar Misra, J.

Heard learned counsel for the parties.

In view of the averments made in the affidavit filed in support of

the application under Section 5 of the Limitation Act, we are satisfied that

the applicants were prevented by sufficient cause from preferring the

Special Appeal within the period of limitation.

The application is, accordingly, allowed. The delay in filing the

Special Appeal is condoned.

Date:21.07.2015

SK

(Dilip Gupta, J.)

(Vinod Kumar Misra, J.)