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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1155 of 2006

Devendra Kumar                                                         …Appellant

Versus

State of Uttaranchal & Ors.                                       …Respondents

J U D G M E N T   

Dr. B. S. CHAUHAN, J.

1. This appeal has been preferred against the impugned judgment  

and order dated 28.5.2004 in Special Appeal No. 16 of 2003 passed  

by the High Court of Uttaranchal. The order affirmed the judgment  

and order of the learned Single Judge dismissing the Writ Petition No.  

278 (S/B) of 2002 vide impugned judgment and order dated 1.8.2003  

by  which  and  wherein,  the  order  of  termination  of  service  of  the  

appellant by the respondent authorities had been upheld.  

2. Facts and circumstances giving rise to this appeal are that:

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A. An advertisement  was  published  in  September  2001 inviting  

applications from candidates eligible for the 250 posts of Constables  

in the State of Uttaranchal. The appellant applied in response to the  

same vide application dated 7.9.2001. He appeared for the physical  

test  and  qualified  on  28.9.2001.  Subsequently,  upon  passing  the  

written test, the appellant faced an interview in September, 2001 and,  

ultimately his name was mentioned in the list of selected candidates  

published  on  30.9.2001.  The  appellant  was  called  for  medical  

examination on 4/5.10.2001, by which he was found fit.  Thus, he was  

sent for training of six months on 18.10.2001.  

B. While joining the training, the appellant was asked to submit an  

affidavit giving certain information particularly, whether he had ever  

been  involved  in  any  criminal  case.   The  appellant  submitted  an  

affidavit stating that he had never been involved in a criminal case.  

The appellant completed his training satisfactorily and it was at this  

time in January 2002, that the respondent authorities in pursuance of  

the process of character verification came to know that the appellant  

was in fact involved in a criminal case. The final report in that case  

had been submitted by the prosecution and accepted by the learned  

Magistrate.     

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C. On the basis of the same, the appellant was discharged abruptly  

on 8.4.2002 on the ground that since he was a temporary government  

servant,  he  could  be  removed  from  service  without  holding  any  

inquiry.   

D. The appellant challenged the said order by filing a writ petition  

and  since  he  was  not  favoured  by  the  learned  single  Judge,  he  

challenged the same before the Division Bench but to no avail.  

Hence, this appeal.  

3. Ms. Nanita Sharma, learned counsel appearing on behalf of the  

appellant,  has  submitted  that  the  appellant  was  not  aware  of  any  

FIR/criminal complaint against him, nor had he been interrogated  by  

the police at any stage. Thus, as it was not in his knowledge he had  

not  suppressed  any  information  regarding  the  registration  of  a  

criminal case against him.  Even otherwise, he had not concealed any  

material fact while giving information in regard to clause 4 and clause  

7  of   Proforma of  Affidavit,  which have  to  be  read together.  The  

appellant was simply supposed to furnish the said information in `Nil’  

with respect to whether he had been punished/convicted/discharged in  

any criminal case.   

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          As in the instant case, only a final report had been submitted in  

case  of  the  appellant  under  Section  173  of  Code  of  Criminal  

Procedure,  1973 (hereinafter  referred  to  as  `the Cr.P.C.’).   So,  the  

question  of  suppression  of  material  fact  could  not  arise  as  the  

appellant had neither been punished, nor convicted, nor discharged.  

The matter did not reach the stage of trial, hence, the appeal deserves  

to be allowed.  

4. On  the  contrary,  Shri  Pankaj  Kumar  Singh,  learned  counsel  

appearing on behalf of the respondent State, has submitted that the  

appellant suppressed the material fact of registration of a criminal case  

against  him.   Thus,  the  appointment  had  been  obtained  by  

misrepresentation  and  had  become  void/voidable.  Thus,  the  courts  

below have correctly held the termination as valid.  In view thereof,  

this Court should not grant any indulgence to the appellant and, the  

appeal is liable to be dismissed.   

5. We have considered the rival submissions made by the learned  

counsel for the parties and perused the records.  

6. Facts  involved  herein  remain  undisputed.  An  FIR  was  

registered against the appellant and others under Sections 402/465/471  

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and 120-B of the Indian Penal Code, 1860 (hereinafter referred to as  

`the IPC’) on 10.2.2001.  In respect of the same a closure report was  

submitted  on  16.2.2001,  which  was  accepted  by  the  learned  

Magistrate on 18.8.2001.   

7. Further, clauses 4 and 7 of the Proforma affidavit to be filled up  

by every appointee, read as under:

“4. That  no  cognizable  or  non-cognizable  criminal  case or proceeding has been registered against me to my  knowledge and neither have I been fined by the police in  any such case and neither  is  any (police investigation)  pending against me.  

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7. That the details of such criminal cases, which were  instituted  against  me in the Court  and in  which I  was  punished/convicted/discharged,  is  as  given  below.   If  such  information  is  nil,  then  word  `NIL’  should  be  entered.”  

8. The reading of the aforesaid clauses of the said affidavit makes  

it clear that both the clauses have to be read in isolation.  Clause 4  

deals  with  a  situation,  where  a  case  has  been  registered,  an  

investigation  is  conducted  and the police have  filed a  final  report.  

Though, the person concerned must have knowledge of the pendency  

of such an FIR/criminal complaint.  

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Further, clause 7 requires, in case, a person has faced criminal  

prosecution, he has to furnish the information about the result of that  

trial  as  to  whether  the  person  has  been  punished/convicted  or  

acquitted/discharged.   Thus,  we  do  not  find  any  force  in  the  

submission  made  by  Ms.  Nanita  Sharma,  learned  counsel  for  the  

appellant,  that  the  clauses  have  to  be  read  together  and  such  

information was required to be furnished only and only if the person  

faced the trial and not otherwise.   

9. We have examined the judgments of the Division Bench as well  

as  of  the  learned  Single  Judge,  that  are  based  on  pleadings  and  

evidence placed before them, recording the finding that  the fact  of  

involvement in the criminal case had been suppressed.  No material  

has been placed before this Court on the basis of which we can take a  

contrary view.   

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  

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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.   

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.” (Vide:  

S.P. Chengalvaraya Naidu (Dead) by LRs. v. Jagannath (Dead) by  

LRs. & Ors., AIR 1994 SC 853. In Lazarus Estate Ltd. v. Besalay,  

1956 All E.R. 349, the Court observed without equivocation that “no  

judgment of a Court, no order of a Minister can be allowed to stand if  

it has been obtained by fraud, for fraud unravels everything.”

12. In  Andhra  Pradesh  State  Financial  Corporation  v.  M/s.  

GAR Re-Rolling Mills & Anr.,  AIR 1994 SC 2151; and  State of  

Maharashtra & Ors. v. Prabhu, (1994) 2 SCC 481, this Court has  

observed that a writ Court, while exercising its equitable jurisdiction,  

should not act to prevent perpetration of a legal fraud as Courts are  

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obliged to do justice  by promotion of  good faith.  “Equity is,  also,  

known  to  prevent  the  law  from the  crafty  evasions  and  subtleties  

invented to evade law.”

13. In  Smt. Shrisht Dhawan v. M/s. Shaw Bros., AIR 1992 SC  

1555, it has been held as under:–

“Fraud  and  collusion  vitiate  even  the  most  solemn  proceedings in any civilized system of jurisprudence. It is   a concept descriptive of human conduct.”

14. In United India Insurance Company Ltd. v. Rajendra Singh  

& Ors.,  AIR 2000 SC 1165, this  Court  observed that  “Fraud and  

justice never dwell together” (fraus et jus nunquam cohabitant) and it  

is a pristine maxim which has not lost temper over all these centuries.  

A similar view has been reiterated by this Court in  M.P. Mittal v.  

State of Haryana & Ors., AIR 1984 SC 1888.

15. In Ram Chandra Singh v. Savitri Devi & Ors., AIR 2004 SC  

4096, this Court held that “misrepresentation itself amounts to fraud”,  

and  further  held  “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  

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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.”  The  said  judgment  was  re-

considered and approved by this Court in Vice-Chairman, Kendriya  

Vidyalaya Sangathan & Anr. v. Girdharilal Yadav, (2004) 6 SCC  

325).   

16. The  ratio  laid  down  by  this  Court  in  various  cases  is  that  

dishonesty should not be permitted to bear the fruit and benefit those  

persons  who  have  frauded  or  misrepresented  themselves.  In  such  

circumstances  the  Court  should  not  perpetuate  the  fraud  by  

entertaining petitions on their behalf. In Union of India & Ors. v. M.  

Bhaskaran, AIR 1996 SC 686, this Court, after placing reliance upon  

and  approving  its  earlier  judgment  in  District  Collector  &  

Chairman,  Vizianagaram  Social  Welfare  Residential  School  

Society v. M. Tripura Sundari Devi, (1990) 3 SCC 655, observed as  

under:–

“If by committing fraud any employment is obtained, the   same cannot be permitted to be countenanced by a Court   of Law as the employment secured by fraud renders it   voidable at the option of the employer.”

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17. In  Delhi Administration through its  Chief Secretary & Ors.  

v.  Sushil  Kumar, (1996)  11  SCC  605, this  Court  examined  the  

similar case where the appointment was refused on the post of Police  

Constable and the Court observed as under:

“It  is  seen  that  verification  of  the  character  and   antecedents  is  one  of  the  important  criteria  to  test   whether the selected candidate is suitable to a post under   the State. Though he was found physically fit, passed the   written test and interview and was provisionally selected,   on  account  of  his  antecedent  record,  the  appointing   authority found it not desirable to appoint a person of   such record as a Constable to the disciplined force. The  view taken by the appointing authority in the background   of  the  case  cannot  be  said  to  be  unwarranted.  The   Tribunal, therefore, was wholly unjustified in giving the   direction for reconsideration of his case. Though he was   discharged or acquitted of the criminal offence, the same   has  nothing  to  do  with  the  question.  What  would  be   relevant is the conduct or character of the candidate to   be  appointed  to  a  service  and  not  the  actual  result   thereof.  If  the  actual  result  happened  to  be  in  a   particular  way,  the  law  will  take  care  of  the   consequence. The consideration relevant to the case is of   the antecedents of the candidate.  Appointing authority,   therefore,  has rightly focussed this aspect and found it   not desirable to appoint him to the service.”                    

(Emphasis added)

18. In  Kendriya  Vidyalaya  Sangathan  v.  Ram Ratan  Yadav,  

AIR 2003 SC 1709; and A.P. Public Service Commission v. Koneti  

Venkateswarulu, AIR 2005 SC 4292, this Court examined a similar  

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case,  wherein,  employment  had  been  obtained  by  suppressing  a  

material fact at the time of appointment. The Court rejected the plea  

taken by the employee that the Form was printed in English and he  

did not know the language, and therefore, could not understand what  

information was sought. This Court held that as he did not furnish the  

information  correctly  at  the  time  of  filling  up  the  Form,  the  

subsequent withdrawal of the criminal case registered against him or  

the nature of offences were immaterial. “The requirement of filling  

column Nos. 12 and 13 of the Attestation Form” was for the purpose  

of verification of the character and antecedents of the employee as on  

the date of  filling in the Attestation Form. Suppression of  material  

information and making a false statement has a clear bearing on the  

character  and  antecedent  of  the  employee  in  relation  to  his  

continuation in service.

19. In State of Haryana & Ors. v. Dinesh Kumar, AIR 2008 SC  

1083, this  Court  held  that  there  has  to  be  a  deliberate  and  wilful  

misrepresentation  and  in  case  the  applicant  was  not  aware  of  his  

involvement  in  any  criminal  case  or  pendency  of  any  criminal  

prosecution against him, the situation would be different.  

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20. In  Secretary,  Department  of  Home,  A.P.  &  Ors.,  v.  B.  

Chinnam Naidu, (2005) 2 SCC 746, this Court held that facts are to  

be examined in each individual case and the candidate is not supposed  

to  furnish  information which is  not  specifically  required  in  a  case  

where information sought dealt with prior convictions by a criminal  

Court. The candidate answered it in the negative, the court held that it  

would not amount to misrepresentation merely because on that date a  

criminal  case  was  pending  against  him.  The  question  specifically  

required information only about prior convictions.  

21. In R. Radhakrishnan v. Director General of Police & Ors.,  

AIR 2008 SC 578,  this Court held that furnishing wrong information  

by the candidate while seeking appointment makes him unsuitable for  

appointment and liable for removal/termination if he furnished wrong  

information when the said information is specifically sought by the  

appointing authority.  

22. In the instant case, the High Court has placed reliance on the  

Govt.  Order  dated  April  28,  1958  relating  to  verification  of  the  

character of a Government servant, upon first appointment, wherein  

the  individual  is  required  to  furnish  information  about  criminal  

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antecedents of the new appointees and if the incumbent is found to  

have  made  a  false  statement  in  this  regard,  he  is  liable  to  be  

discharged forthwith without prejudice to any other action as may be  

considered necessary by the competent authority.

The purpose of seeking such information is not to find out the  

nature or gravity of the offence or the ultimate result of a criminal  

case,  rather  such  information  is  sought  with  a  view  to  judge  the  

character and antecedents of the job seeker or suitability to continue in  

service.  Withholding  such  material  information  or  making  false  

representation itself amounts to moral turpitude and is a separate and  

distinct matter altogether than what is involved in the criminal case.  

23. More so, if the initial action is not in consonance with law, the  

subsequent  conduct  of  a  party  cannot  sanctify  the  same.  “Subla  

Fundamento  cedit  opus”-  a  foundation  being  removed,  the  

superstructure  falls.  A  person  having  done  wrong  cannot  take  

advantage of his own wrong and plead bar of any law to frustrate the  

lawful trial  by a competent Court.  In such a case the legal maxim  

Nullus Commodum Capere Potest De Injuria Sua Propria applies.    

The persons violating the law cannot be permitted to urge that their  

offence cannot be subjected to inquiry, trial or investigation. (Vide:  

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Union of India v. Maj. Gen. Madan Lal Yadav, AIR 1996 SC 1340;  

and Lily Thomas v. Union of India & Ors., AIR 2000 SC 1650).

    Nor can a person claim any right arising out of his own wrong  

doing. (Juri Ex Injuria Non Oritur).

24. The  courts  below  have  recorded  a  finding  of  fact  that  the  

appellant suppressed material information sought by the employer as  

to whether he had ever been involved in a criminal case. Suppression  

of  material  information sought  by the employer or  furnishing false  

information  itself  amounts  to  moral  turpitude  and  is  separate  and  

distinct from the involvement in a criminal case.  

In view of the above, the appeal is devoid of any merit and is  

accordingly dismissed.  

…….…………………………………….J.  (DR. B.S. CHAUHAN)

….……………………………………….J. (S.A. BOBDE)

New Delhi;   July 29, 2013

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