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Kartick Ruidas and Others Vs. State of West Bengal and Others - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberW.P. No. 729 (w) of 2003
Judge
AppellantKartick Ruidas and Others
RespondentState of West Bengal and Others
Excerpt:
.....of the concerned employment exchanges and their names were sponsored to the district primary school council, burdwan for the post of the primary teacher in a primary school within the said district in the year 1999. undisputedly, the recruitment process was conducted on the basis of the rules regulating the recruitment and leave of the teachers in primary school in west bengal framed vide a notification no. 768-edn (p) dated 22 november, 1991 in exercise of the power conferred under section 106 and 60 of the west bengal primary education act, 1973. in terms of the provision contained in rule 9 thereof, all the sponsored candidates were allowed to produce the testimonial/certificates for the computation of their marks in the score sheet prepared for such purposes. the petitioners.....
Judgment:

Harish Tandon, J.

The petitioners have ventilated the common cause in this writ petition. Admittedly, all the petitioners are the registrants of the concerned Employment Exchanges and their names were sponsored to the District Primary School Council, Burdwan for the post of the primary teacher in a primary school within the said District in the year 1999.

Undisputedly, the recruitment process was conducted on the basis of the rules regulating the recruitment and leave of the teachers in primary school in West Bengal framed vide a notification no. 768-Edn (p) dated 22 November, 1991 in exercise of the power conferred under Section 106 and 60 of the West Bengal Primary Education Act, 1973. In terms of the provision contained in Rule 9 thereof, all the sponsored candidates were allowed to produce the testimonial/certificates for the computation of their marks in the score sheet prepared for such purposes. The petitioners are, thereafter, selected for the interview and were empanelled for appointment. In facts, they were issued the appointment letter upon necessary approval from the Director of the School Education, West Bengal.

Subsequently, a doubt was raised as to the genuinity of the marksheet submitted at the time of submission of the testimonial/certificates which upon prima facie satisfaction was appears to be fake and forged to the authorities. The petitioners alleged that the authorities cannot prevent them from discharging their duties without taking recourse to law and also without giving an opportunity of hearing. They further alleged that no order of termination of their services has been issued by the authorities as yet.

The Burdwan District Primary School Council (Council for short), however, discloses various documents in the affidavit-in-opposition relating to the issuance of the show cause notice and an order of termination/cancellation of their appointment letter. According to the Council, the petitioners submitted the forged marksheet for the purpose of computation of marks in terms of Rule 9 of the Recruitment Rules by pretending that they obtained first division marks in the Madhyamik Pariksha or equivalent from the recognized institution. However, the marksheets which are produced by the petitioners at the time of making application, does not reveal that they obtained first division marks but much lower thereto, which on computation, as per Rule 9 of the said Recruitment Rules, does not bring the petitioners within the zone of consideration for interview far to speak of zone of appointment. It is further stated that the Council has lodged an FIR with the concerned police station for taking the cognizance of such offences committed by the petitioner. Admittedly, the petitioners are enlarged on bail.

Mr. Kashi Kanta Moitra, the learned Senior Advocate appearing for the petitioners submit that the moment, the appointment is given the authorities cannot act as per its whims but to follow the procedure of disciplinary action. He succinctly argues that the order of termination without following the principles of natural justice cannot be sustained. Lastly, he submits that the petitioners are the victims of the conspiracy hatched by some persons to show their animosity. In support of the contention, that the statutory authority should follow the procedure before termination of the service, he placed reliance upon a judgment of the Apex Court in case of Union of India and anr. Vs. Shardindu reported in (2007) 2 SCC (L and S) 456, in case of P.S.E.B and ors. Vs. Leela Singh reported in AIR 2007 SC (Supp) 161 and a decision rendered by employment in case of Gurucharan Bid vs. State of West Bengal and Ors. reported in 2011 (4) ESC 2363 (Cal).

Mr. Arup Banerjee, the learned Advocate appearing for the Council, however, submits that the petitioners obtained the appointment by committing fraud upon the authorities and as such, no person should be allowed to reap the benefit which he obtained by submitting fake and forged documents. He submits that the fraud vitiates all solemn act and, therefore, the order of termination passed by the authority cannot be faulted with and placed reliance upon a judgment in case of Bhaurao Dagdu Paralkar vs. State of Maharashtra and Ors. reported in (2005) 7 SCC 605. He further submits that on identical facts and circumstances, the Apex Court held that the appointment is liable to be cancelled if the same has been obtained on production of the fake and fabricated marksheet and placed reliance upon an unreported judgment in case of District Primary School Council, WB vs. Mritunjoy Das and Ors. (Civil Appeal 6007 of 2011 decided on July 27, 2011). Lastly, it is submitted that the show cause notice was issued to all the petitioners and the petitioner no.2 filed reply to the said show cause but did not appear on the date fixed for hearing and as such, the authorities proceeded to pass an order which cannot be said to have been passed without giving an opportunity of hearing or in gross violation of the principles of natural justice.

Having considered the respective submissions, it is a settled law that the fraud vitiates all solemn acts. It unravels everything. Fraud and Justice cannot dwell together, as an act of fraud is a deliberate deception with the design motive to secure something unfairly. The Apex Court in case of Bhaurao Dagdu Paralkar (supra) have dealt in detail the ingredients relating to the fraud and its consequences in these words:

“9. By “fraud” is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from ill will towards the other is immaterial. The expression “fraud” involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. [See Vimla (Dr.) v. DelhiAdmn. and Indian Bank v. Satyam Fibres (India) (P) Ltd.]

10. A “fraud” is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. (See S.P. Chengalvaraya Naidu v. Jagannath.)

11. “Fraud” as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letters or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letters. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. (See Ram Chandra Singh v. Savitri Devi.)

12. In Shrisht Dhawan v. Shaw Bros., it was observed as follows: (SCC p. 553, para 20)

“Fraud” and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Camus, who exulted in his ability to, “wing me into the easy-hearted man and trap him into snares”. It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary “fraud” in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Law Dictionary, “fraud” is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act, 1872 defines “fraud” as an act committed by a party to a contract with intent to deceive another. From the dictionary meaning or even otherwise fraud arises out of the deliberate active role of the representator about a fact, which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. In a leading English case i.e. Derryv. Peek what constitutes “fraud” was described thus: (All ER p. 22 B-C)

“Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false.”

But “fraud” in public law is not the same as “fraud” in private law. Nor can the ingredients, which establish “fraud” in commercial transaction, be of assistance in determining fraud in administrative law. It has been aptly observed by Lord Bridge in Khawaja v. Secy. of State for Home Deptt. that it is dangerous to introduce maxims of common law as to the effect of fraud while determining fraud in relation of statutory law.

“Fraud” in relation to the statute must be a colourable transaction to evade the provisions of a statute.

“ ‘If a statute has been passed for some one particular purpose, a court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope.’ Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in public law or administrative law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would not have been exercised. That is misrepresentation must be in relation to the conditions provided in a section on existence or nonexistence of which power can be exercised. But non-disclosure of a fact not required by a statute to be disclosed may not amount to fraud. Even in commercial transactions non-disclosure of every fact does not vitiate the agreement. ‘In a contract every person must look for himself and ensure that he acquires the information necessary to avoid bad bargain.’ In public law the duty is not to deceive.” (See Shrisht Dhawan v. Shaw Bros., SCC p. 554, para 20.)

13. This aspect of the matter has been considered recently by this Court in Roshan Deen v. Preeti Lal, Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education, Ram Chandra Singh case and Ashok Leyland Ltd. v. State of T.N.

14. Suppression of a material document would also amount to a fraud on the court. (See Gowrishankar v. Joshi Amba Shankar Family Trust and S.P. Chengalvaraya Naidu case.)

15. “Fraud” is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti Yadav case.

16. In Lazarus Estates Ltd. v. Beasley Lord Denning observed at QB pp. 712 and 713: (All 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. Fraud unravels everything.”

In the same judgment Lord Parker, L.J. observed that fraud vitiates all transactions known to the law of however high a degree of solemnity. (p. 722) These aspects were recently highlighted in State of A.P. v. T. Suryachandra Rao.”

Mr. Moitra, the learned Senior Council has rightly pointed out that after an appointment is given, the service can be terminated upon following the prescribed procedure. In case of Shardindu (supra) the Apex Court held:

“ 20. As against this, learned Senior Counsel for the respondent, Mr. Gupta has strenuously urged before us that in case of statutory appointment there is no scope to cut short except to terminate the services of the incumbent in the manner provided under the Act. In this connection, our attention was invited to a decision of this court in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi wherein the Constitution Bench held that the termination of service of an incumbent by the Corporation created by statute without complying with the regulations framed by the Corporation cannot be made. The reason was that the termination contravened the provisions contained in the regulations. In short, when the appointment is made, the service conditions are laid down. The termination of such appointment could only be made in the manner provided in the statute and by no other way. Once the regulations have been framed and detailed procedure laid down therein, then in that case if the services of an incumbent are required to be terminated then that can only be done in the manner provided and none else. Similar view has been taken in State of Kerala v. Mathai Verghese. Therefore, in this background, we are of opinion that the submission of learned Additional Solicitor General cannot be sustained.”

In case of Leela Singh, the Apex court held that even if the appointment is obtained by committing fraud upon production of the forged certificate, the same is required to be proved in duly constituted disciplinary proceeding. The case of Gurucharan Bid (supra) was not on the allegation of fraud but founded on misconduct by an employee. Therefore, the said case cannot be made applicable in view of its distinguishing features.

There is no hesitation in my mind to hold that the charge of fraud leveled against the employee is required to be proved by validly instituted disciplinary proceeding. The information sheet annexed by the council in affidavit-in-opposition which has been filled up by the candidate reveals inflated marks alleged to have been obtained by the petitioner in Madhyamik Pariksha whereas the marksheet produced by them reflects much lesser marks.

Furthermore, the show cause notice was issued to all the petitioners giving an opportunity to file their reply to the allegations. Except the petitioner no.2, none of the petitioners filed reply. Even the petitioner no.2 did not appear on the date fixed for hearing. Therefore, it cannot be said that no principles of natural justice was followed by the authorities. In the identical facts and circumstances, the Apex court in the unreported judgment rendered in case of Mritunjoy Das and Ors.(supra) held:

“7. We have considered the submissions of the counsel for the parties. On going through the records placed before us, what we find is that the contesting respondents herein inflated their marks in order to obtain admission in the primary teachers’ training institute. Had the marks not been inflated in the aforesaid manner, the contesting respondents would not have got the admission in that particular institute as it is disclosed from the records. Therefore, the admission sought for was through an illegal means which is to be deprecated. The conduct of the contesting respondents being such, we cannot find fault with the course of action taken by the appellant herein. It is not that the contesting respondents were not given any opportunity of hearing. They were given a show cause notice and were also given an opportunity of hearing which opportunity they did not accept although they submitted a reply to the show cause notice. There is, therefore, no violation of the principles of natural justice in the present case. If a particular act is fraudulent, any consequential order to such fraudulent act or conduct is non est and void ab initio and, therefore, we cannot find any fault with the action of the appellant in dismissing the service of the contesting respondents. In this context we refer to the decision of this court in Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education and Others reported in (2003) 8 SCC 311 for the proposition that no person should be allowed to keep an advantage which he has obtained by fraud.”

Thus as discussed above, I do not find any merit in the instant writ petition.

The writ petition is thus dismissed.

However, there shall be no order as to costs.

Urgent photostat certified copy of the judgment, if applied for, be given to the parties on priority basis.


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