Ram Ekwal Prasad vs Union Of India Through Secy. … on 30 November, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

A.F.R.

RRESERVED

Court No. – 7

Case :- SERVICE BENCH No. – 953 of 2015

Petitioner :- Ram Ekwal Prasad

Respondent :- Union Of India Through Secy. Ministry Of Urban Development N

Counsel for Petitioner :- Amitabh Mishra,Dharmesh Sinha,Hari Prasad Gupta,Sanjay Misra,Syed Ahmad Mehdi

Counsel for Respondent :- A.S.G.,Nandita Bharti

Hon’ble Anil Kumar,J.

Hon’ble Daya Shankar Tripathi,J.

(As per Anil Kumar,J.)

Heard Shri Sanjay Mishra, learned counsel for the petitioner and Ms. Nandita Bharti, learned counsel for the respondent.

Shri Sanajy Mishra, learned counsel for the petitioner submits that the petitioner was initially appointed on 11.01.1996 as Senior Accountant in the Central Pay Accounts Office, Ministry of Science Technology, Dehradun and he remained there upto 23.09.1999. Thereafter, he after being relieved from the said post, was appointed as Manager in the Bank of Baroda on 27.09.1999 and served there upto 17.04.2010.

Subsequently, petitioner was appointed on the post of Assistant General Manager in IDBI Bank and joined there on 19.04.2010 after being relieved from the post of Manager. While working in the said capacity, charge sheet on 23/25.05.2013 was issued to him to which he submitted his reply on 27.06.2013.

In the month of August, 2013, an advertisement was issued by the National Capital Region Planning Board (hereinafter referred to as NCRPB) for calling candidature for the several post as mentioned therein including one post of Deputy Director (Administration). After taking permission from IDBI Bank, petitioner submitted his candidature in response to the above said advertisement. By letter dated 06.12.2013, he was called for interview for the post of Deputy Director (Administration) in NCRPB on 20.12.2013, selected by the competent authority and offer of appointment was issued to him vide letter dated 23.12.2013.

On 31.12.2013, petitioner submitted his resignation from the post of Assistant Manager in IDBI Bank with one month notice. However, by letter dated 31.01.2014, authority of the IDBI Bank intimated him that his resignation cannot be processed due to pending departmental proceedings and he cannot be relieved before finalization of departmental proceedings. As he was not relieved from the post of Assistant General Manager in IDBI Bank, he submitted an application dated 22.01.2014 to the Finance Accounts Officer, NCRPB for extension of time for his joining upto 28.02.2014. He was given time with the approval of competent authority and vide letter dated 07.02.2014, it was intimated by the Finance Accounts Officer, NCRPB to the petitioner.

It is further submitted by learned counsel for the petitioner that as the petitioner could not be relieved from the post of Assistant General Manager in IDBI Bank till 28.02.2014, he submitted an application dated 26.02.2014 with a further request to the Finance Accounts Officer, NCRPB for extending of time for his joining upto 20.03.2014. In response to the same, it was intimated to the petitioner that the competent authority has extended his joining time upto 20.03.2014 and the petitioner had undergone all the medical test and screening etc. as was required by NCRPB.

Learned counsel for the petitioner further submits that in the meantime, the departmental proceedings were concluded and vide order dated 18.03.2014, the petitioner was awarded punishment of ”Removal from Service, which shall not be a disqualification for future employment upon the petitioner. Accordingly, the petitioner submitted his joining on 20.03.2014 along with relevant documents and punishment order dated 18.03.2014 passed in NCRPB, but he was not allowed his joining and vide order dated 27.03.2014, it was communicated to the petitioner that his appointment has been cancelled by the competent authority in view of the punishment order dated 18.03.2014. The said order was passed without issuing any show cause notice and without any opportunity of hearing to the petitioner.

Aggrieved by the order dated 27.03.2014, petitioner approached the Central Administrative Tribunal, Lucknow Bench, Lucknow by filing O.A. No.242 of 2014, dismissed by the Tribunal by the judgment and order dated 25.02.2015. Thereafter, the petitioner filed a review application no.14 of 2015, also dismissed vide order dated 07.05.2015. Hence, this writ petition filed.

Learned counsel for the petitioner while challenging the impugned order submits that the impugned judgments and orders are erroneous and based on wrongful appreciation of the material on record. While passing the impugned judgments and orders, the Tribunal has erroneously taken into consideration two points and misinterpreted the same. First one is conditionally as understood for the extension of time for joining and second is violation of clause-II of the undertaking given in the application form itself. The Tribunal totally ignored the ground taken in O.A. filed by the petitioner, for example, violation of principles of natural justice in passing the order of cancellation of appointment of the petitioner and also other ground that the petitioner was granted permission to apply for the post of Deputy Director (Administration) without mentioning that the disciplinary proceedings were pending against the petitioner. The Tribunal misinterpreted the term relieving as relieving does not always mean mutual agreement for parting. Here, in case of the petitioner the termination of employer and employee relationship was necessary between the Bank and the petitioner for joining on the post outside the Bank as the petitioner had applied for the post to be filled up by the direct recruitment.

He further submits that the Tribunal totally ignored the fact that the employer and employee relationship between the Bank and the petitioner was terminated by the punishment of ”Removal from service’ and after such punishment, the petitioner was free to join under the opposite parties. The Tribunal as well as opposite parties also misinterpreted the penalty as dismissal from service which is a disqualification for future employment.

It is also submitted by learned counsel for the petitioner that the Tribunal has gone beyond the scope of the impugned order and taken the ground of concealment which was not even the ground for cancellation of his appointment as it is apparent from the order dated 27.03.2014.

Lastly it is submitted by learned counsel for the petitioner that the impugned order dated 27.03.2014 and advertisement dated 07.05.2014 are passed against the provisions contained in Articles 14, 19(1) (g) and 311 of the Constitution of India. In this regard, he has placed reliance on the judgment given by Hon’ble the Apex Court in the State of M. P. and others vs. Shyama Pardhi etc. etc., AIR 1996 SC 2219, wherein it has been held as under :-

“Since prescribed qualifications had not been satisfied, the initial selection to undergo training is per se illegal. Later appointments thereof are in violation of the statutory rules. The Tribunal, therefore, was not right in directing the reinstatement of respondents. The question of violation of the principles of natural justice does not arise. The ratio of Shrawan Kumar Jha and Ors. v. State of Bihar and Ors.,AIR 1991 SC 309, strongly relied on, has no application to the facts of this case. That was a case where appellants possessed initial qualifications but they did not undergo the training. Since the appointment was set aside on the ground of want of training, this Court interfered with; directed the Government to reinstate them into service and further directed them to send the appellants therein for training.” (See Union of India and others vs. O. Chakradhar (2002) 3 SCC 146).

Accordingly, it is submitted by learned counsel for the petitioner that the impugned judgment and orders under challenge in the present writ petition are liable to be set aside.

Ms. Nandita Bharti, learned counsel for the respondent submits that opposite party no.2/NCRPB issued an advertisement inviting applications to fill up the vacant posts of Deputy Director (Administration). NCRPB is an autonomous body created under the roof of Ministry of Urban Development in coordination with the four States i.e. NCT of Delhi, Rajasthan, Haryana and Uttar Pradesh, that the National Capital Region has been created under the provisions of NCR Planning Board Act, 1985 and presently covering a total area of 45,888 square kilometers with four Constituent Sub-regions. These Sub-regions comprises of the following area/districts as specified hereunder :-

” 1. Sub-region of National Capital Territory of Delhi comprising of whole of NCT-Delhi State (1483 Sq. Km.).

2. Haryana Sub-region comprising of Faridabad, Gurgaon, Mewat, Palwal, Rohtak, Sonipat, Rewari, Jhajjar, Panipat, Mahendragarh and Bhiwani Districts (20,105 Sq. Km.) of Haryana State.

3. Rajasthan Sub-region comprising of Alwar and Bharatpur District (13,447 Sq. Km.) of Rajasthan State.

4. Uttar Pradesh Sub-region comprising of Meerut, Ghaziabad, Gautam Buddha Nagar, Bulandshahar, Hapur and Baghpat (10,853 Sq. Km.) Districts of Uttar Pradesh State.”

He further submits that NCR Planning Board Act, 1985 provides for the constitution of a Planning Board for the preparation of a Regional Plan for the development of the National Capital Region and for coordinating and monitoring the implementation of such plan and for evolving harmonized policies for the control of land-uses so as to avoid any haphazard development in the Region and development of both physical and social infrastructure in the National Capital Region and this all involved a lot of public funds which is to be utilized for the welfare of the public. Hence, it becomes very necessary that the people working with respondent no.2 should be of sound character with no previous bad record.

For the appointment of given post advertised by respondent no.2, petitioner had also applied and after following due procedure of selection for the post, respondent no.2 found him prima facie fit for the post in question. The petitioner at the time of interview on 21.12.2013 had produced the letter of IDBI dated 06.09.2013 giving him permission to apply for the post of Dy. Director (Admin.) and on the basis of the same as well as educational qualification, he was given offer of appointment for the post of Dy. Director (Admin.) vide letter no.12011/1/2016-Estt. Vol-II dated 23.12.2013. However, the appointment letter was subject to certain conditions :-

“The petitioner should provide Certificate of Character duly attested by Gazetted Officer.

The petitioner should fill the attestation form giving details of his Bio-data, Educational Qualification, previous employment details along with pending Disciplinary cases, if any, etc.”

Learned counsel for the respondent submits that these important conditions which were imposed on the petitioner before his appointment were to avoid any sort of ambiguity in relation to the given post of Deputy Director (Administration). It is very crucial post with respondent no.2 and only a person of clean character with specialization in his field could be appointed on the said post.

The petitioner had a fraudulent conduct and was misleading the respondent no.2 since the date of submission of his application. He had deliberately concealed the relevant information from respondent no.2 which includes the departmental charge sheet dated 23/29.05.2013 issued against him while working on the post of Assistant General Manager in IDBI Bank and the same was not disclosed by the petitioner at any point of time. The petitioner was required to furnish the character certificate along with the previous employer relieving certificate before joining the given post with respondent no.2. Petitioner had requested respondent no.2 for extension of date of joining on various pretexts and the respondent no.2 had also provided an opportunity to the petitioner to fulfil the given conditions prior to the joining without knowing the real picture and conduct of petitioner.

Respondent no.2 finally refused to extend the time for joining of the petitioner and further asked the petitioner to fulfil the given conditions immediately before his appointment and further asked to produce the relevant document in confirmation of the same. Thereafter, the petitioner had informed the respondent no.2 about the departmental proceedings initiated against him leading to penalty of removal against him and the respondent no.2 for the first time came to know about the fraudulent conduct of the petitioner on 20.03.2014.

Petitioner showed his inability of producing the relieving certificate along with the character certificate issued by the previous employer, as there is a departmental proceeding pending against him and a penalty order dated 18.03.2014 was issued to him wherein it was found that major penalty proceedings were initiated against him for various acts of misconduct (i.e. fraudulent and fake claims) allegedly committed by him during the course of his tenure and duties as regional operations Manager in the Bank’s PBG vertical at Lucknow from April 2010 to June 2012.

Accordingly, it is submitted on behalf of the respondent that there is no illegality or infirmity in the impugned orders under challenge in the present writ petition.

In support of her argument, she has placed reliance on the judgment given by Hon’ble the Apex Court in the case of Union of India vs. Rati Pal Saroj, (1998) 2 SCC 574, Central Provident Fund Commissioner vs. Ashok Dubey (1993) Supp. 2 SCC 7-8 and Devendra Kumar vs. State of Uttaranchal and ohters (2013) 9 SCC 363.

We have heard learned counsel for the parties and gone through the records.

The petitioner had submitted his application in response to the advertisement dated August, 2013 in the prescribed format. The format is inclusive of an undertaking to the following effect i.e. Point 15 “I hereby declare that all the statements made in this application are true and complete to the best of my knowledge and belief. I understand that the Board can take action against me in case I am declared by them to be guilty of furnishing any wrong information or suppressing of facts”.

The application was submitted on 28.08.2013 and the petitioner was given appointment letter dated 23.12.2013. He was required to join within 30 days. He sought time to resign from his previous employer (IDBI) but he could not be relieved from services due to on-going departmental proceedings. Although, the petitioner sought the first extension for joining by his letter dated 22.01.2014 and the same was extended to him. He sought the second extension for the said purpose by letter dated 26.02.2014 and the competent authority has extended the time. When petitioner had undergone all the medical test and screening etc. as was required by NCRPB, the departmental proceedings were concluded and vide order dated 18.03.2014, the petitioner was awarded punishment of ”Removal from Service. He submitted his joining on 20.03.2014 but the same was not accepted and informed him that his appointment letter has been cancelled in view of the punishment order dated 18.03.2014.

So far as the matter in regard to giving incorrect information at the time of appointment is concerned, in this regard, Hon’ble the Apex Court, after taking into consideration the various cases on the point in issue, in the case of Avtar Singh vs. Union of India and others (2016) 8 SCC 471 has held as under :-

“When we take stock of aforesaid decisions of this Court in nutshell it emerges that :-

In State of M. P. vs. Ramashanker Raghuvanshi, (1983) 2 SCC 145, this Court has opined that activities in Jan Sangh and RSS could not be made a ground to deprive employment. In democratic set up ‘McCarthyism’ is not healthy. Some leniency to young people cannot be ruled out.

In T.S. Vasudavan Nair vs. Vikram Sarabhai Space Centre, 1988 Supp SCC 795, a three Judges’ Co-ordinate Bench of this Court held that due to non-disclosure of conviction in a case of violation of Defence of India Rules by shouting slogans, the cancellation of appointment was illegal.

In Commr. of Police vs. Dhaval Singh, (1999) 1 SCC 246, though pendency of case was suppressed when verification form was filed, however, the information about it was furnished before cancellation of appointment order on the ground of suppression was passed. This Court set aside the order on the ground of non-consideration of effect of disclosure made before order of cancellation of appointment was passed.

In Commr. Of Police vs. Sandeep Kumar, (2011) 4 SCC 644, this Court in the backdrop fact of the case that offence suppressed was committed Under Section 325/34 Indian Penal Code at the time when incumbent was 20 years of age. This Court held that young people to be dealt with leniency. They should not be deprived of appointment as suppression did not relate to involvement in a serious case.

In Ram Kumar vs. State of U. P., (2011) 14 SCC 709, this Court considered a case when pending criminal case Under Sections 324, 323, 504 Indian Penal Code in which subsequently acquittal had been recorded, no overt act was attributed by sole witness to incumbent and moreover Government instructions dated 28.4.1958 requiring authority to consider suitability as such was not complied with, denying back wages to incumbent, his appointment was ordered.

In Bank of Baroda vs. Central Govt. Industrial Tribunal, (1999) 2 SCC 247, this Court declined to interfere Under Article 136 in view of subsequent acquittal in a case Under Section 307 Indian Penal Code. The decision of Labour Court was not interfered with. Passage of time was taken into consideration. However, this Court clarified that decision will not be treated as precedent.

In Kamal Nayan Mishra vs. State of M.P., (2010) 2 SCC 169, action was taken when employee was not on probation. He had been confirmed in service and was holding civil post, attestation was filled after 14 years of service and then after 7 years of that, action was taken. It was held that confirmed employee could not have been removed in view of protection Under Article 311(2) without enquiry. Removal was held to be void.

In Union of India vs. M. Bhaskaran, 1995 Supp (4) SCC 100, it was held that when the employment was taken on bogus and forged casual labourer service card no estoppel was created against employer by appointment and such appointment was voidable.

In Delhi Admn. vs. Sushil Kumar, (1996) 11 SCC 605, on consideration of background facts of the pending case which was suppressed Under Sections 304, 324/34 and 324 Indian Penal Code, it was held not desirable to appoint incumbent notwithstanding his subsequent acquittal.

In Kendriya Vidyalaya Sangathan vs. Ram Ratan Yadav, (2003) 3 SCC 437, this Court held that suppression of pending criminal case Under Sections 323, 341, 294, 506B/34 Indian Penal Code on the date of filing attestation form coupled with impact of it on students, nature of employment, the discretion exercised to terminate the services was upheld.

In R.Radhakrishnan vs. DG of Police, (2008) 1 SCC 660 in which pendency of criminal case Under Section 294(b) Indian Penal Code was suppressed relying on Sushil Kumar (supra), it was held that removal was legal.

In Union of India vs. Bipad Bhanjan Gayen, (2008) 11 SCC 314, there was suppression of two pending cases on the date of filing verification form Under Sections 376 Indian Penal Code and 417 Indian Penal Code relating to rape and cheating. It was observed that since antecedents were not good incumbent could not claim equity for appointment.

In Daya Shankar Yadav vs. Union of India, (2010) 14 SCC 103, this Court has laid down course of action to be taken in such cases, and that suppression by itself can be a ground to remove person from service or cancel an appointment, notwithstanding acquittal in the criminal case.

In State of WB vs. SK Nazrul Islam, (2011) 10 SCC 184, due to suppression of pending case on the date of filing of form Under Sections 148, 323, 380, 427, 596 Indian Penal Code incumbent was adjudged to be unsuitable for appointment.”

Appointment is effected by the employer through a contract of employment. As in every contract, so in a contract of public employment an offer of appointment to the candidate sought to be employed and his acceptance of the offer forms the basis of appointment. Appointment is made to a vacancy and in a post. It is, therefore, made by a positive and deliberate act of engagement creating a relationship between employer and employee. Appointment is the starting point of a career in public employment. It confers a status and ensures all the rights that are attached to public service, including confirmation, seniority, promotion, and so on tenure.

In the case of Basant Lal Mehrotra Vs. State of Punjab and others, AIR 1969 Punjab and Haryana 181 (V 56 C 31) while interpreted the date of appointment it has been held as under:-

“I am led to an irresistible conclusion that the terms ‘recruitment ‘ and ‘appointment’ are not synonymous and connote different meanings. The term ‘recruitment’ connotes and clearly signifies enlistment, acceptance, selection or approval for appointment and not actual appointment or posting in service while ‘appointment’ means an actual act of posting a person to a particular office.

Hon’ble the Supreme Court in the case of Prafulla Kumar Swain vs. Prakash Chandra Misra and others, 1993 Supp. (3) SCC 181, held as under:-

“At this stage, we will proceed to decide as to the meaning and effect of the words “recruitment” and “appointment”. The term “recruitment” connotes and clearly signifies enlistment, acceptance, selection or approval for appointment. Certainly, this is not actual appointment or posting in service. In contradistinction the word “appointment” means an actual act of posting a person to a particular office.”

It is also, well-settled that the said principle cannot be put in any straight jacket formula. It may not be in a given case applied unless a prejudice is shown. It is not necessary where it would be a futile exercise. However, a court of law does not insist on compliance of useless formality. It will not issue any such direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences. As mentioned in the in Wade Administrative Law, (5th Ed.PP.472-475) as follows: ( para 31).

“….it is not possible to lay down rigid rules as to when principles of natural justice are to apply, nor as their scope and extent ….There must have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter to be dealt with and so forth”.

Hon’ble Apex Court in the case of S.L. Kapoor Vs. Jagmohan and others, 1980 (4) SCC 379, held as under:-

“Linked with this question is the question whether the failure to observe natural justice does at all matter if the observance of natural justice would have made no difference, the admitted or indisputable facts speaking for themselves. Where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it approves the non observance of natural justice but because Courts do not issue futile writs. But it will be a pernicious principle to apply in other situations where conclusions are controversial, however, slightly, and penalties are discretionary.”

In Aligarh Muslim University and Others Vs. Mansoor Ali Khan [(2000) 7 SCC 529], the law is stated in the following terms :

“25. The useless formality theory, it must be noted, is an exception. Apart from the class of cases of admitted or indisputable facts leading only to one conclusion referred to above, there has been considerable debate on the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton, L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, de Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the court will be prejudging the issue. Some others have said that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via media rules. We do not think it necessary in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case.”

In Karnataka State Road Transport Corporation and another Vs. S.G. Kotturappa and another, [(2005) 3 SCC 409], this Court held :

“The question as to what extent, principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality. What is needed for the employer in a case of this nature is to apply the objective criteria for arriving at the subjective satisfaction. If the criteria required for arriving at an objective satisfaction stands fulfilled, the principles of natural justice may not have to be complied with, in view of the fact that the same stood complied with before imposing punishments upon the respondents on each occasion and, thus, the respondents, therefore, could not have improved their stand even if a further opportunity was given.”

Hon’ble the Supreme Court in the case of Punjab National Bank and others Vs. Manjeet Singh and another, 2006 (8) SCC 647, this Court opined :

“The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The court will not insist on compliance with the principles of natural justice in view of the binding nature of the award. Their application would be limited to a situation where the factual position or legal implication arising thereunder is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principle of natural justice.”

In P.D. Agarwal Vs. State Bank of India and others[(2006) 8 SCC 776], Hon’ble Apex Court observed as under:-

“The Principles of natural justice cannot be put in a straight jacket formula. It must be seen in circumstantial flexibility. It has separate facets. It has in recent time also undergone a sea change.”

It was further observed :

“Decision of this Court in S.L. Kapoor vs. Jagmohan Ors. [(1980) 4 SCC 379], whereupon Mr. Rao placed strong reliance to contend that non- observance of principle of natural justice itself causes prejudice or the same should not be read “as it causes difficulty of prejudice”, cannot be said to be applicable in the instant case. The principles of natural justice, as noticed hereinbefore, has undergone a sea change. In view of the decision of this Court in State Bank of Patiala Ors. Vs. S.K. Sharma [(1996) 3 SCC 364] and Rajendra Singh vs. State of M.P. [(1996) 5 SCC 460], the principle of law is that some real prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principal doctrine of audi alterem partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principal. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straightjacket formula. [See Viveka Nand Sethi vs. Chairman, J. K. Bank Ltd. Ots. (2005) 5 SCC 337 and State of U.P. Vs. Neeraj Awasthi Ors, JT 2006 (1) SC 19. See also Mohd. Sartaj Vs. State of U.P. (2006) 1 SCALE 265.]”

Hon’ble the Apex Court in the case of Union of India vs. Rati Pal Saroj, (1998) 2 SCC 574 has held as under :-

“If the employee has a right to be appointed by virtue of his acceptance of the offer of appointment, that right has to be exercised within a reasonable time. It is not a right which remains for an indefinite period of time. In the same way, if the Government discovers after the offer of appointment, circumstances relating to the prospective employee which make him unsuitable for the post, the appointment can be cancelled. If the circumstances raise a doubt about the suitability of the candidates for the post or the Service in question, the doubt should be dispelled within a reasonable time. Otherwise the employer is entitled to cancel the appointment. This is not by way of a punishment nor does it cast a stigma on the prospective employee.”

Hon’ble the Apex Court in the case of Central Provident Fund Commissioner vs. Ashok Dubey (1993) Supp. 2 SCC 7-8 has held as under :-

“Therefore, the High Court was not at all justified in saying that the respondent was never afforded any opportunity before the issue of the cancellation order dated 8/9.4.91. Even assuming that an opportunity is to be afforded, what is the purpose? It was not the case of the respondent that there were no disciplinary proceedings pending against him. His only case was that the charges were trivial or frivolous in nature. Irrespective of the nature of charges the relief order from the Bank was not forthcoming. The vigilance certificate and integrity certificate were not made available by the respondent. Therefore, the appellant could not issue the order of appointment. The matter is simple enough.”

Hon’ble the Apex Court in the case of Devendra Kumar vs. State of Uttaranchal and ohters (2013) 9 SCC 363 has held as under :-

“Para 10- So far as the issue of obtaining the appointment by misrepresentation is concerned, it is no more res integra. The question is not whether the applicant is suitable for the post. The pendency of a criminal case/proceeding is different from suppressing the information of such pendency. The case pending against a person might not involve moral turpitude but suppressing of this information itself amounts to moral turpitude. In fact, the information sought by the employer if not disclosed as required, would definitely amount to suppression of material information. In that eventuality, the service becomes liable to be terminated, even if there had been no further trial or the person concerned stood acquitted/discharged.

Para 11- It is a settled proposition of law that where an applicant gets an office by misrepresenting the facts or by playing fraud upon the competent authority, such an order cannot be sustained in the eyes of law. “Fraud avoids all judicial acts, ecclesiastical or temporal.”

So far as the matter in regard to dismissing the review application is concerned, the Tribunal has dismissed the same after taking into consideration the law laid down in the case of Meera Bhanja (Smt.) vs. Nirmala Kumar Choudhary (Smt.) reported in (1995) 1 SCC 170, wherein the Hon’ble the Apex Court has held that “the Review petition can be entertained only on the ground of error apparent on the face of record and not on any other ground. Any error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. Re-appraisal of the entire evidence or error would amount to exercise of appellate jurisdiction which is not permissible” by way of review application. This is the spirit of order XLVII, Rule 1 of CPC as has been held in this judgment of Hon’ble Supreme Court.

In the case of Parison Devi and others vs. Sumitri Devi and others reported in (1997) 8 SCC 715, Hon’ble the Apex Court has held as under :-

“Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule I CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be “reheard and corrected”. A review petition, it must be remembered has a limited purpose and cannot be allowed to be “an appeal in disguise”.

10. Considered in the light of this settled position we find that Sharma, J. clearly over-stepped the jurisdiction vested in the court under Order 47 Rule 1 CPC. The observations of Sharma, J. that “accordingly, the order in question is reviewed and it is held that the decree in question was of composite nature wherein both mandatory and prohibitory injunctions were provided” and as such the case was covered by Article 182 and not Article 181, cannot be said to fall within the scope of Order 47 Rule 1 CPC. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. While passing the impugned order, Sharma, J. found the order in Civil Revision dated 25.4.1989 as an erroneous decision, though without saying so in so many words. Indeed, while passing the impugned order Sharma, J. did record that there was a mistake or an error apparent on the face of the record which was not of such a nature, “which had to be detected by a long drawn process of reasons” and proceeded to set at naught the order of Gupta, J. However, mechanical use of statutorily sanctified phrases cannot detract from the real import of the order passed in exercise of the review jurisdiction. Recourse to review petition in the facts and circumstances of the case was not permissible. The aggrieved judgment debtors could have approached the higher forum through appropriate proceedings to assail the order of Gupta, J. and get it set aside but it was not open to them to seek a “review” of the order of Gupta, J. on the grounds detailed in the review petition. In this view of the matter, we are of the opinion that the impugned order of Sharma, J. cannot be sustained and we accordingly accept this appeal and set aside the impugned order dated 6.3.1997.”

Accordingly, the review application was dismissed.

Thus, we do not find any illegality or infirmity either in the impugned judgment dated 25.02.2015 passed in O. A. No.242 of 2014 or in the order dated 07.05.2015 passed in the Review Application No.14 of 2015 by Central Administrative Tribunal, Lucknow Bench, Lucknow.

In the result, the writ petition lacks merit and is dismissed.

Order Date :- 30.11.2017

Mahesh

.

(Daya Shankar Tripathi,J.) (Anil Kumar,J.)

 

 

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