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.
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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
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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
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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
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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
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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
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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
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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. 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
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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
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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
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petition is being disposed of finally at the stage of
admission.
7. 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, the Director, Vigilance 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."
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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:-
"During enquiry, the EO verified the
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
Susanta Kumar Das, Controller of
Examination, Utkal University, Vani Vihar
also confirmed regarding missing of Page
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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
who stated that his signature on the
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.
Under the above facts 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 the time of
appointment is a forged one.”
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
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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.
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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.
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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
settled that misrepresentation itself
amounts to fraud. Indeed, 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
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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
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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. 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
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