Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK W.P(C) NO.1593 OF 2016 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------------- AFR Prakash Chandra Mishra ..… Petitioner -Versus- State of Odisha & Ors. ….. Opp. Parties For petitioner : Mr. B. Routray, Sr. Advocate along with M/s. S. Das, R.P. Dalai, S. Jena, K. Mohanty, S.K. Samal, S.P. Nath, S.D. Routray & S. Sekhar, Advocates For opp. parties : Mr. B. Mohanty, Addl. Government Advocate [O.Ps. No.1 to 3 & 5] M/s. A.K. Nath, S.K. Rout and P.K. Sahoo, Advocates [O.P. No.6] P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR. JUSTICE G. SATAPATHY DECIDED ON : 30.04.2024 DR. B.R. SARANGI,J. The petitioner, by means of this writ petition, seeks to quash the order dated 26.11.2015 passed in O.A. No.808 of 2011 under Annexure-26, as well as the order dated 15.03.2008 under Annexure-16 Page 1 of 17 // 2 passed by the disciplinary authority and the order dated 07.05.2011 under Annexure-18 passed by the appellate authority, and further seeks to issue direction to the opposite parties to reinstate the petitioner in the post of Asst. Teacher (Level-V) in Radhaballavpur UGUP School, Soro in the district of Balasore and extend all the service benefits as due and admissible to the said post within a stipulated period and further to regularize the service of the petitioner for the period from 20.08.2007 till 26.02.2008 as leave due and admissible within the said period. 2. The factual matrix of the case, in brief, is that the petitioner acquired qualification of B.A., B.Ed. and entered into government service as Sikhya Karmi, vide order dated 24.06.1991 and was subsequently regularized as Asst. Teacher against a Matric C.T. post. While continuing as such, he was directed by opposite party no.3-D.I. of Schools, Balasore-II, Soro, vide order dated 04.04.2005, to furnish the original certificates up to B.Ed. level for verification. As per direction, the petitioner placed all the original certificates showing his Page 2 of 17 // 3 educational qualification, except B.A. and B.Ed., as the originals of the same were not available with him. He, however, submitted the provisional certificate of B.A. and College Leaving Certificate of B.Ed. for verification. As the petitioner was again asked, vide letter dated 31.10.2005, to submit the original of B.A. & B.Ed. certificates, he applied to Utkal University to provide the original certificates and made a representation to the authority concerned to allow him reasonable time to submit the same. As ill-luck would have it, without granting time, opposite party no.3 issued show cause notice to the petitioner, vide letter dated 30.11.2005, for having submitted fake and forged certificates at the time of entering into service, and stopped salary even before initiation of the proceeding. While the matter stood thus, he fell seriously ill and underwent treatment from 18.08.2007 to 25.02.2008 and after being declared fit by the CDMO, Bhubaneswar, when he went to join in his service, he was not allowed to join the post. 2.1. Thereafter, the petitioner collected the original certificate of B.A. from Utkal University on 19.02.2008 Page 3 of 17 // 4 and personally met opposite party no.3-D.I.of Schools, Balasore-II, Soro, along with the original certificates of B.A. and B.Ed., but he refused to acknowledge the same. On 08.03.2008, he was served with a notice to show cause, vide office order dated 29.02.2008, on the proposed penalty of punishment of dismissal from government service. Without giving any opportunity of being heard to the petitioner and without following due procedure, the enquiry was conducted by the Inquiring Officer and the enquiry report was prepared holding him guilty of furnishing fake certificate at the time of entering into service and based on the same, the final order of punishment was passed dismissing him from service with effect from 15.03.2008. Therefore, all the mandatory requirements under the rules of procedure to be followed in a major penalty have been violated and as such, the order of punishment issued is not sustainable in the eye of law. 2.2. The petitioner then approached the Tribunal in O.A. No. 969 of 2009, which was disposed of, vide order dated 23.09.2009, with a direction to opposite Page 4 of 17 // 5 party no.2 to dispose of the appeal preferred against the order of punishment of dismissal. In compliance of the order of the Tribunal, the appeal was disposed of by rejecting the prayer of the petitioner on false and flimsy grounds. At the time of declaration of result of graduation, initially the name of the petitioner, along with few others, was found in the fail category, but, later on, as per revised list, the petitioner was declared as pass and he was issued with a final mark sheet on 20.04.1987 having Roll No. 104B035. He received the original B.A. certificate on 19.02.2008 from the University. But unfortunately, the opposite party- authorities, due to personal grudge, did not take into account the original B.A. certificate issued by the University and through a departmental proceeding the petitioner was visited with an order of punishment of dismissal from service. 2.3. The petitioner obtained the copy of the proceeding file under RTI Act from the office of opposite party no.3. The said file reveals that the petitioner remained on leave on health ground with effect from Page 5 of 17 // 6 20.08.2007. A draft charge was prepared for initiation of the departmental proceeding against the petitioner on 14.08.2007, but the same could not be served upon him. As the opposite parties failed to serve the charge on the petitioner through different modes, opposite party no.3, on 22.02.2008, was appointed as Inquiring Officer, who intimated the petitioner, on 29.02.2008, for conducting the enquiry. The letter of the Inquiring Officer, as per the report of the Jr. Clerk dated 28.02.2008, could not be served on the petitioner. Despite the same, the enquiry was conducted in his absence and on submission of the enquiry report, the petitioner, vide order dated 29.02.2008, was issued with the 2nd show cause notice calling for his reply, on the proposed punishment of dismissal, within a period of seven days. The petitioner received the said letter on 08.03.2008, but, before completion of stipulated period and without considering the show cause reply, the final order of punishment was passed intentionally to harass him. 2.4. Aggrieved by the order of punishment of dismissal, the petitioner preferred an appeal. The Page 6 of 17 // 7 appellate authority, vide order dated 07.05.2011, rejected the appeal on the ground that the provisional certificates of B.A. and B.Ed. are fake and forged. Moreover, the punishment awarded is shockingly disproportionate to the nature of delinquency and hence, is not sustainable in the eye of law. 2.5. Against the order dated 07.05.2011 passed by the appellate authority, the petitioner approached the Tribunal by filing O.A. No. 808 of 2011 and the Tribunal, while disposing of the said O.A. vide order dated 26.11.2015, did not feel inclined to interfere with the order of punishment imposed by the opposite party- authorities. Hence, this writ petition. 3.
Legal Reasoning
There is no dispute with regard to the fact that the petitioner had entered into service by producing B.A. and B.Ed. certificates. The existence of such certificates was disputed. As such, the matter was enquired into and those documents were found to be forged. The petitioner at the time of appointment had produced provisional B.A. pass certificate, but not the original B.A. pass certificate, as has been stated in the vigilance report. Moreover, nowhere it is mentioned either by the vigilance or by the departmental authority that the provisional B.A. pass certificate produced by the petitioner at the time of first appointment was a forged or a fake one. The Tribunal passed order on 20.04.2012 in O.A. No.808 of 20111 to the following effect: "In view of the contradictions between Annexures-11, 12 and 20 and letter No. 5918/2007 dated 8.8.2007 of the Controller of Examinations, Utkal University, Vani Vihar, Bhubaneswar, is directed to have the matter enquired into by an Officer not below the rank of DSP and submit his report regarding veracity of the B.Α. certificate produced by the applicant at Annexure-11 within a period of three months from the date of receipt of this order." the Director, Vigilance Page 10 of 17 // 11 8. In compliance of the order of the Tribunal, the Director-cum-Addl. D.G & I.G of Police, Vigilance, Odisha, Cuttack submitted enquiry report dated 27.9.2012 to the following effect:- the EO verified the "During enquiry, Admission Register, Tabulation Register (TR) of U.N. College, Soro and found that Sri Mishra had taken admission in U.N. College, Soro as a regular student and appeared second BA examination in the year 1986 having University Roll No. 104B035. After publication of result, Tabulation Sheet of Utkal University was received at U.N. College, Soro în which Sri Mishra was declared fail. In the said Tabulation Register available at U.N. College, Soro, it has been mentioned against the name of Sri Prakash Chandra Mishra "Revised result published on 9.4.1987 attached with TR" and declared pass. Notification of Utkal University, Vani Vihar alongwith revised Mark Sheet of Sri Mishra are not available in the said Tabulation Register. College Leaving Certificate was issued to Sri Prakash Chandra "Mishra from U.N. College, Soro declaring him as B.A. pass. It has also been confirmed by Sri Manas Ranjan Panda, Lecturer in Mathematics, In- charge of Examination Section, U.N. College, Soro, that Mark Sheet in support of B.A. Pass of Sri Prakash Chandra Mishra is not available in the College, but as per CLC Register of the College Sri Mishra has received CLC on 18.11.2005. During enquiry the EO scrutinized the Tabulation Register of U.N. College, Soro for the year 1986 in the office of the Controller of Examination, Utkal University, Vani Vihar and found that page No. 62 of the Tabulation Register of second B.A. examination, 1986 pertaining to U.N. College, Soro missing Sri of Susanta Examination, Utkal University, Vani Vihar also confirmed regarding missing of Page Controller Kumar Das, Page 11 of 17 // 12 No.62 meant for the U.N. College, Soro in Tabulation Register of both sets for second B.A. Examination for Roll No. 104B035. The Controller of Examinations, Utkal University has also confirmed in his letter No. 9808 dated 11.9.2012 that Sri Prakash Chandra Mishhra had applied for issue of original B.A. Certificate of 1986 on 4.12.2005, which is pending in the University and no such certificate has been issued in favour of Sri Mishra from the University. Sri Saroj Kumar Mishra, Ex-Vice Chancellor, Utkal University, Vani Vihar was also shown the photocopy of alleged B.A. Pass Certificate of Sri Mishra the who stated photocopy of B.A. Certificate shown to him has been forged. Sri Mishra, Ex-Vice Chancellor has also clarified that in the certificate English short-signature of the Vice Chancellor has been forged and it has been issued by putting facsimile rubber seal in Odiya. that his signature on the facts above Under and circumstances, it is concluded during enquiry that B.A. Pass Certificate was not issued from Utkal University, Vani Vihar either to Sri Prakash Chandra Mishra or to U.N. College, Soro. Application of Sri Prakash Chandra Mishra to issue his B.A. Certificate is still pending with Utkal University, Vani Vihar, Bhubaneswar. As such B.A. Pass Certificate produced by Sri Mishra at time of appointment is a forged one.” the 9. On perusal of the above report, it is apparent that there is no dispute with regard to mark sheet issued in favour of the petitioner in respect of second B.A. Examination in the year 1986. The entire claim of the petitioner is based on the certificate, which was submitted by the petitioner at the time of initial appointment. As such, the petitioner has also admitted Page 12 of 17 // 13 that he had produced B.A. provisional certificate at the time of appointment, but neither the said certificate has been annexed nor produced before the Tribunal to know the veracity of the said certificate. Further, the Controller of Examination, Utkal University confirmed in his letter dated 11.09.2012 that the petitioner had applied for issuance of original B.A. certificate of 1986 on 04.12.2005, which is pending in the University and no such certificate has been issued in favour of the petitioner by the University. It is stated in the vigilance enquiry report that Sri Saroj Kumar Mishra, Ex-Vice Chancellor, Utkal University, Vani Vihar was also shown the photocopy of alleged B.A. Pass Certificate of the petitioner and he stated that his signature on the photocopy of B.A. Certificate has been forged. Sri Mishra, Ex- Vice-chancellor has also clarified that in the certificate English short-signature of the Vice-chancellor has been forged and it has been issued by putting facsimile rubber seal in Odia. From the above, it can be safely inferred that the petitioner has not approached this Court with clean hands. Page 13 of 17 // 14 10. In State of Haryana v. Karnal Distillery, AIR 1977 SC 781, the apex Court refused to grant relief on the ground that the applicant had misled the Court. 10.1. In Chancellor v. Bijayananda Kar, AIR 1994 SC 579, the apex Court held that a writ petition is liable to be dismissed on the ground that the petitioner did not approach the Court with clean hands. 10.2. Taking into consideration the above judgments, this Court, in Netrananda Mishra v. State of Orissa, 2018 (II) OLR 436, came to a conclusion in paragraph-26 of the said judgment and held as under:- “………..For suppression of facts and having not approached this Court with a clean hand, the encroacher is not entitled to get any relief, particularly when the valuable right accrued in favour of the petitioner is being jeopardized for last 43 years for no fault of him, on which this Court takes a serious view…………” The above ratio has also been taken note of by this Court in the case of State of Odisha and others v. Lalat Kishore Mohapatra and Anr., 2022 (Supp.) OLR 970. Therefore, applying the above ratio to the present case, this Court is of the considered view that the petitioner has not approached this Court with clean hands. Page 14 of 17 // 15 11. Furthermore, the petitioner in the present case has tried to take advantage by producing fraudulent certificates. Therefore, the petitioner cannot be granted the relief sought, as he has committed fraud which goes into the root of the matter. 12. The apex Court has dealt with the meaning of ‘fraud’ in Shrisht Dhawan v. Shaw Bros, (1992) 1 SCC 534, which has also been referred to in Roshan Deen v. Preeti Lal, (2002) 1 SCC 100, Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education, (2003) 8 SCC 311 and Ashok Leyland Ltd. v. State of T.N., (2004) 3 SCC 1. 13. In Ram Chandra Singh v. Savitri Devi, (2003) 8 SCC 319, the apex Court held as follows:- “Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together. 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 former either by word or letter. It is also well itself settled that misrepresentation amounts innocent misrepresentations may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud Indeed, fraud. to Page 15 of 17 // 16 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 the 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 f any equitable doctrine including res-judicata.” The said principle has also been referred to by this Court in the case of Umesh Chandra Chinera v. Chairman & Managing Director, Bharat Petroleum Corpn., 2022 (II) ILR CUT-504. The said view has also been taken by the apex Court in Bhaurao Dagdu Parlakar v. State of Maharashtra, (2005) 7 SCC 605. 14. In view of the foregoing discussions, it is made clear that the petitioner has not only tried to take advantage of fraudulent documents, but also has approached this Court with unclean hands. Therefore, this Court holds that the petitioner is not entitled to get the relief sought for. As such, this Court does not find any error in the order dated 26.11.2015 passed by the Page 16 of 17 // 17 Tribunal in O.A. No.808 of 2011 so as to cause interference with the same. Accordingly, the impugned order passed by the Tribunal, being well justified, is upheld. 15.
Arguments
Mr. B. Routray, learned Senior Counsel along with Mr. S. Sekhar, learned counsel appearing for the petitioner vehemently contended that since there is conflicting statement with regard to passing of B.A. and B.Ed. examination of the petitioner and, as such, due to non-production of original certificate he was dismissed from service, the action taken by the disciplinary authority is harsh. Thereby, the petitioner seeks for Page 7 of 17 // 8 quashing of the order dated 15.03.2008 passed by the disciplinary authority as well as the order dated 07.05.2011 passed by the appellate authority and the order dated 26.11.2015 passed by the Tribunal in O.A. No.808 of 2011. 4. Mr. B. Mohanty, learned Addl. Government Advocate vehemently contended that the certificates of B.A. and B.Ed. furnished by the petitioner at the time of his entry into service could not be substantiated by producing originals thereof, as was directed, and therefore, the petitioner cannot claim for continuance in service and accordingly by following due procedure, the disciplinary authority passed the order of punishment dismissing the petitioner from service, which has been confirmed by the appellate authority. Therefore, the Tribunal has rightly passed the order impugned confirming the orders passed by the disciplinary authority as well as appellate authority. 5. Mr. A.K. Nath, learned counsel appearing for opposite party no.6-Utkal University contended that since the petitioner had failed in the B.A. examination Page 8 of 17 // 9 conducted in September, 1986, even though he appeared with Roll No.104B035, the provisional B.A. pass certificate filed by the petitioner at the time of his entry into service was fake one and certified copy of such provisional certificate could not be provided, as the particular page was not available in the concerned tabulation register. Therefore, relief sought by the petitioner cannot be extended to him, as the petitioner cannot take advantage of producing forged documents for getting employment. Consequentially, the Tribunal is well justified in passing the order impugned confirming the orders passed by the disciplinary authority as well as the appellate authority. 6. This Court heard Mr. B. Routray, learned Senior Counsel appearing for the petitioner; Mr. B. Mohanty, learned Addl. Government Advocate appearing for the State-opposite parties and Mr. A.K. Nath, learned counsel appearing for opposite party no.6-Utkal University in hybrid mode. Pleadings have been exchanged between the parties and with the consent of learned counsel appearing for the parties, the writ Page 9 of 17 // 10 petition is being disposed of finally at the stage of admission. 7.
Decision
In the result, therefore, the writ petition merits no consideration and the same is hereby dismissed. But, however, in the facts and circumstances of the case, there shall be no order as to costs. (DR. B.R. SARANGI) JUDGE G. SATAPATHY, J. I agree. (G. SATAPATHY) JUDGE Orissa High Court, Cuttack The 30th April, 2024, Alok Signature Not Verified Digitally Signed Signed by: ALOK RANJAN SETHY Designation: A.R-cum-Sr. Secretary Reason: Authentication Location: ORISSA HIGH COURT Date: 03-May-2024 18:20:58 Page 17 of 17