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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: M. BHASKARAN

DATE OF JUDGMENT30/10/1995

BENCH: MAJMUDAR S.B. (J) BENCH: MAJMUDAR S.B. (J) JEEVAN REDDY, B.P. (J)

CITATION:  1996 AIR  686            1995 SCC  Supl.  (4) 100  1995 SCALE  (6)214

ACT:

HEADNOTE:

JUDGMENT:                           W I T H                CIVIL APPEAL NO. 9637 OF 1995        (Arising out of S.L.P. (C) No. 14326 of 1995) Union of India & Ors. V. G. Radhakrishnan                            A N D                CIVIL APPEAL NO. 9638 OF 1995        (Arising out of S.L.P. (C) No. 14330 of 1995) Union of India & Ors. V. C Devan                       J U D G M E N T S.B. Majmudar.J.           Leave granted in these petitions.      By  consent   of  learned   advocates   appearing   for respective parties  the appeals  were  taken  up  for  final hearing.      The short  question involved  in these three appeals is as  to  whether  the  respondent-workmen  who  had  obtained employment in  Railway service  run  by  appellant-Union  of India, on  the basis  of bogus  and forged  casual  labourer service cards  could be  continued in  Railway service  once such fraud  was detected  by the  Railway  authorities.  The Central Administrative  Tribunal, Ernakulam  Bench has taken the view that as the aforesaid misconduct of the respondent- Railway employees  does not  fall within  the forecorners of Rule 3(1)(i)  and (iii) of Railway Services (Conduct) Rules, 1966 (hereinafter referred to as ‘the Rules’), the orders of removal from  service passed  against the  respondents could not be  sustained and they were entitled to be reinstated in Railway  service   with  all  conse  uential  benefits.  The aforesaid view  of the  Tribunal is  brought on the anvil of scrutiny in  the present proceedings moved by the appellant- Union of  India and  the concerned Railway authorities under

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whom the respondent-workmen worked at the relevant time.      The Tribunal  in  the  impugned  judgments  has  placed reliance on  its earlier  decision in  O.A. No.892  of  1993 decided on  22nd June  1994 for  taking the  view that  such misconduct would  not attract  Rule 3(1)(i) and (iii) of the Rules. It  is not  in dispute  between the  parties that the concerned respondent-workmen  had got  employment in Railway by producing  bogus and forged casual labourer service cards purported to  have been  issued by  their earlier employers. However, according  to the  Tribunal such a misconduct would not attract  Rule 3(1)(i)  and (iii)  of the  Rules  as  the concerned employee  even though engaged as a casual employee could not  be said  to be  governed by the Rules at the time when he  obtained such employment and that he was not guilty of any misconduct committed during the Railway service.      The aforesaid  view  of  the  Tribunal  can  be  better appreciated in  the light  of the relevant provisions of the Rule itself. Rule 3(1) reads as under:      "3.  General.- (1) Every railway           servant shall at all times-           (i)  maintain absolute integrity;           (ii) maintain devotion to duty; and           (iii do nothing which is subversion                of law and order and is                unbecoming of a railway                government     Servant." Now it  is no doubt true that on the express language of the Rule the  concerned Railway servant has to maintain absolute integrity and has not to do any thing which is subversion of law and  order and  which is  unbecoming of  a railway  or a government servant.  That would certainly apply to a railway servant who is alleged to have misconducted himself while in Railway  service.   However,  learned   senior  counsel  for appellants vehemently  submitted that the misconduct alleged in the  present case, of snatching railway employment in the basis of  bogus certificates or casual labourer cards, would indeed show  that the  concerned employee  had  exhibited  a conduct which was unbecoming of a railway servant.      It is  not necessary  for us  to express any opinion on the applicability  of Rule 3(1)(i) and (iii) on the facts of the present cases for the simple reason that in our view the concerned  railway   employees,  respondents   herein   have admittedly snatched employment in Railway service, may be of a casual  nature, by  relying upon  forged or  bogus  casual labourer cards.  The unauthenticity  of the service cards on the  basis   of  which   they  got   employment  is  clearly established on  record  of  the  departmental  enquiry  held against the  concerned employees. Consecuently, it has to be held that  respondents were  guilty of misrepresentation and fraud perpetrated  on the  appellant employer  while getting employed in Railway service and had Snatched such employment which would  not have  been made  availeble to  them if they were not  armed with  such bogus  and forged labourer cards. Learned counsel  for  the  respondents  submitted  that  for getting service  in Railway  as  casual  labourers,  it  was strictly not necessary for the respondents to rely upon such casual service  cards. If  that was so there was no occasion for them  to produce  such bogus  certificates service cards for getting  employed in  Railway service.  Therefore, it is too late  in the  day for  the respondents  to  submit  that production of  such bogus  or forged  service cards  had not played its  role in  getting employed in Railway service. It was clearly  a case  of fraud  on the appellant-employer. If once  such   fraud  is   detected,  the  appointment  orders themselves which  were found  to be  tainted and vitiated by

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fraud and  acts of  cheating on  the part of employees, were liable to  be recalled  and were  at least  voidable at  the option of the employer concerned. This is precisely what has happened  in  the  present  case.  Once  the  fraud  of  the respondents      in getting such employment was detected the respondents were proceeded against in departmental enquiries and were  called upon  to have their say and thereafter have been removed  from service.  Such orders  of  removal  would amount  to  recalling  of  fraudulently  obtained  erroneous appointment orders  which  were  avoided  by  the  employer- appellant after  following the  due  procedure  of  law  and complying with the principles of natural justice. Therefore, even independently  of Rule  3(1)(i) and (iii) of the Rules, such  fraudulently  obtained  appointment  orders  could  be legitimately treated  as  voidable  at  the  option  of  the employer and  could be  recalled by the employer and in such cases merely because the respondent-employees have continued in service  for  number  of  years  on  the  basic  of  such fraudulently obtained  employment orders  cannot create  any equity  in   their  favour   or  any  estoppel  against  the employer.In this  connection we  may  usefully  refer  to  a decision of  this Court  in District  Collector &  Chairman, Vizianagaram  Social  Welfare  Residential  School  Society, Vizianagaram &  Anr. V. M. Tripura Sundari Devi (1990) 3 SCC 655. In  that case  Sawant, J.  speaking for this Court held that   when   an   advertisement   mentions   a   particular qualification and  an appointment is made in disrgard of the same, it  is  not  a  matter  only  between  the  appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement.  It amounts  to  a  fraud  on  public  to appoint  persons   with  inferior   qualifications  in  such circumstances  unless   it  is   clearly  stated   that  the qualifications are  relaxable. No court should be a party to the perpetuation of the fraudulent practice. It is of course true as  noted by the Tribunal that the facts of the case in the aforesaid  decision were different from the facts of the present case.  And it is also true that in that case pending the service which was continued pursuant to the order of the Tribunal the  concerned  candidate  acquired  the  requisite qualification and hence his appointment was not disturbed by this Court. But that is neither here nor there. As laid down in  the  aforesaid  decision  if  by  committing  fraud  any employment is  obtained such a fraudulent practice cannot be permitted  to   be  countenanced   by  a   court   of   law. Consequently,  it   must  be  held  that  the  Tribunal  had committed a  patent error  of law in directing reinstatement of the  respondent-workmen with  all consequential benefits. The removal  orders could  not  have  been  faulted  by  the Tribunal as  they were  the result of a sharp and fraudulent practice on the part of the respondents. Learned counsel for respondents,  However,   submitted  that   these  illiterate respondents were  employed as casual labourers years back in 1983 and  subsequently they have been given temporary status and, therefore,  after passage  of such  a  long  time  they should not  be thrown  out of employment. It is difficult to agree with  this contention.  By  mere  passage  of  time  a fraudulent  practice   would  not   get  any  sanctity.  The appellant authorities having come to know about the fraud of the  respondents   in   obtaining   employment   as   casual Labourers,, started  departmental proceeding  years back  in 1987 and  these proceedings  have dragged  on for  number of years. Earlier  removal orders  of the  respondents were set

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aside by  the Central  Administrative Tribunal, Madras Bench and proceedings were remanded and after remand fresh removal orders were  passed by  the appellant  which have  been  set aside by  the  Central  Administrative  Tribunal,  Ernakulam Bench and  which are  the  subject  matter  of  the  present proceedings.  Therefore,   it  cannot   be  said   that  the appellants are  estopped from  recalling  such  fraudulently obtained employment  orders of  the respondents  subject  of course  to  following  due  procedure  of  law  and  in  due compliance with  the principles of natural justice, on which aspect there  is no  dispute between  the  parties.  If  any lenient view  is taken  on the  facts of the present case in favour of  the respondents  then it  would amount to putting premium on  dishonesty and sharp practice which on the facts of the  present case  in favour  of the  respondents then it would amount  to putting  premium on  dishonesty  and  sharp practice which  on the  facts of the present cases cannot be permitted.      For all  these reasons,  therefore, these  appeals  are allowed. The  impugned orders  of the Tribunal are set aside and the  original  applications  filed  by  the  respondents before the Central Administrative Tribunal, Eranakulam Bench are dismissed.  However, in  the facts  and circumstances of the cases there will be no order as to costs all throughout.