JUDGMENT
R.B. Misra, J.
1. Heard Sri K.K. Mishra, learned Counsel for petitioner, and Sri Satya Prakash, learned Counsel for the Food Corporation of India (in short called ‘Corporation’ hereinafter).
2. In Writ Petition No. 47731 of 2000 the petitioner has challenged the order dated 29.9.2000 (Annexure-IX to the writ petition) superannuating the petitioner, and has challenged order dated 17.5.1999/29.5.1999 dismissing the service of the petitioner and the petitioner has also challenged the order dated 22.8.1997 and 2.1.1998, whereby the memorandum of charges were served to the petitioner and the disciplinary inquiry was proposed to be initiated against the petitioner.
3. According to the petitioner, he was appointed to the post of messenger in ‘Corporation’ on 26.5.1969 on the basis of High School Certificate submitted by him showing his date of birth as 12.9.1945. The petitioner was serving the Corporation and was receiving salary. However, in the year 1994 a complaint was received that the petitioner has produced a forged High School certificate disclosing wrong date of birth, whereas, his date of birth was to be 12.9.1940. The petitioner for forging documents, dereliction of duty and for altering and manipulating the documents was placed under suspension by an order dated 5/9.8.1994, against which Civil Misc. Writ Petition No. 39679 of 1994 was decided on 9.12.1994 by this Court whereby the representation of the petitioner was directed to be decided by the respondents. The suspension order of the petitioner was revoked and petitioner was allowed to work to the post, on which he was initially deployed. However, for the aforesaid serious allegations an inquiry was directed to be conducted against the petitioner and the matter was referred to the Secretary, Board of High School and Intermediate, Allahabad about verification, where it was revealed that date of birth of the petitioner was 12.9.1940 instead of 12.9.1945. Accordingly, the petitioner’s matter was referred to the Zonal Office of ‘Corporation’ on 9.10.1995 and a charge-sheet was issued to the petitioner in respect of fraud and gross misconduct committed on the part of the petitioner and an Inquiry Officer was appointed. The petitioner also by a Civil Misc. Writ Petition No. 10769 of 1998 challenged initiation of the inquiry, wherein on 26.3.1998 a direction was issued to the respondents to furnish the copy of the charge-sheet to the petitioner in making inquiry. However, the petitioner did not co-operate in the inquiry and did not attend the inquiry on the fixed date, time and place for the purpose, therefore, on the available documents exparte inquiry was concluded with a finding that the petitioner has cheated the ‘Corporation’ and forgery done by the petitioner was established beyond doubt and the charges against the petitioner were proved, therefore, in exercise of powers under Regulation 56 of Food Corporation of India (Staff) Regulation, 1971 for good and sufficient reasons the Senior Regional Manager being disciplinary authority dismissed the petitioner from service on 29.4.1999, which too was challenged in Civil Misc. Writ Petition No. 24854 of 1999 on the ground that entire action of the respondents is malafide, discriminatory, illegal and against the principles of natural justice.
4. According to the petitioner, he had put in service for more than two decades and shall come across great hardship and shall suffer irreparable loss for the action to be taken in reference to the dismissal order dated 29.4.1999. This Court, however, on 16.6.1999 has stayed operation of the dismissal order dated 29.4.1999. Consequently, the petitioner had continued in service till he attained the age of superannuation. Treating the date of birth of the petitioner as 12.9.1940 and taking that the petitioner had attained the age of superannuation on 30th September, 2000 the petitioner by order dated 29.9.2000 (Annexure No. 9 to the writ petition) was relieved from service w.e.f. 30th September, 2000. The order dated 29.9.2000 too was challenged by way of Civil Misc. Writ Petition No. 47731 of 2000.
5. The petitioner has further contended that he completed entire tenure of service even on the strength of the interim order of this Court also, as such, he is entitled to the pensionery benefits. This aspect has been vehemently opposed by the learned Counsel for ‘Corporation’ by saying that since maximum age limit for recruitment to the post of Class-IV employee in the Corporation was 25 years and on forged certificate showing his date of birth as 12.9.1945 the petitioner entered into service on 26.5.1969 impressing the Authorities/Corporation that he is well within the upper age limit of 25 years, whereas the petitioner was overage and was above twenty nine years of age at the time of entry into service. Had he disclosed his correct date of birth and had submitted the correct High School certificate indicating his date of birth as 12.9.1940, the petitioner being much above to the prescribed age limit could not have at all been allowed to be entered in to service, as such, the appointment of the petitioner was void ab-initio.
6. Counter affidavits in all the petitions have been filed. The endeavourance has been made through the rejoinder affidavit to controvert the contents of the counter affidavit and to reiterate the averments of the writ petitions.
7. According to the respondents, if any, relief is given to the petitioner ignoring the fraud inherited since its inception, the same shall create wide ramification and shall give wrong precedence.
8. The learned Counsel for the respondents rather prayed for recovery of entire amount and for initiation of penal action against the petitioner as per Corporation, petitioner had procured the service, for which he was not entitled. However, this aspect is not so relevant as in reference to the complaint the correct date of birth has been traced out and the matter was inquired into and disciplinary authority has dismissed the service of the petitioner in accordance with law after making an exparte inquiry on the basis of the available documents and by fixing the date, time and place for inquiry, where the petitioner did not co-operate and as such the finding of the inquiry is valuable document for placing reliance.
9. It has been submitted on behalf of the respondents that this Court (Hon’ble R.B. Misra, J.) in Civil Misc. Writ Petition No. 1648 of 1986 (Mahendra Mishra v. Up-Nideshak (Prashasari), Rjya Krishi Utpadan Mandi Parishad and Anr.) has observed that the writ petitioner appointed initially as daily wager, subsequently as a Mali in Mandi Parishad without proper advertisement, without his name being invited from the Employment Exchange, without legally constituting selection committee, without obtaining approval of Director, Mandi Parishad, in violation of the provisions of U.P. Agriculture Produce Market Committees (Centralised) Service Regulations, 1984, however, was terminated by an order simplicitor, such termination order was set aside keeping in view the peculiar facts and circumstances and the Deputy Director, Mandi Parishad, was directed to issue a fresh notice to the writ petitioner apprising him about the allegations about the selection, appointment and gains in any form or manner and alleged irregularities and procedural deficiencies occurred in the selection or appointment and after considering the records, documents and explanation and material submitted by the writ petitioner no fixed date, time, providing opportunity to writ petitioner to adduce the evidence, opportunity of oral hearing, to cross-examine the witnesses or to allow the writ petitioner to submit written statement/submission for fulfilling the requirement of principle of natural justice and to pass a reasoned order within six months from the date of such notice in accordance with law, and till then the writ petitioner was not to be reinstated to the post in question and his reinstatement and other service benefits was to depend upon the fresh decision to be taken by the Deputy Director of Rajya Krishi Mandi Utpadan Parishad.
10. In the above Mahendra Mishra (supra) this Court (Hon’ble R.B. Misra, J.) has elaborated the situations in Paragraph 7 and has dealt these aspects in subsequent Paragraph Nos. 101 to 104 as below :
“(7) To deal the issue involved in the present case it would be necessary to consider very important aspects in the interest of justice, role of law and in the great interest of public, when any particular process or selection or appointment has suffered from legal and procedural improprieties, deficiencies, irregularities, illegalities, foul-play, corruption, dubious, malpractice, fraud, forgery, falsity, scandal, misrepresentation, malafide, favouritism, non-availability of post vacancy, illegal and erroneous constitution of selection committee, selection being bad for lack of proper sanction of Competent Authority or for lack of competency of appointing authority and the said selection is defective for statutory procedural infirmities e.g. for non-publishing advertisement or not inviting names from Employment Exchange, selection made without interview, fake and ghost interviews, tempering with records, fabricating documents or non-observance of reservation policy, anomaly in preparation of select list, unauthorised appointments made beyond expiry of the select list, taking benefit of manipulation in date of birth and production of false certificates degree, lack of eligibility criteria, deficiency in qualification, admission to a course or benefits gains in any form procured by foul means, non-observance of other provisions or requirements of relevant Act, rules, regulations, bye- laws, norms, Government Orders, official memorandum, legal established pattern, (as some examples out of many more variety of defects) then selected beneficiary candidate as an outcome of such defective selection or spoiled system if appointed and has started working, acquiring legal right to the post, shall be removed in the prescribed manner.”
“(101) It is well settled that the appointment made from selection dehors the rules or provisions or the ‘Act’ applicable are unenforceable and inexecutable, thus, are to be set aside as the rule of law. The system and the public at large become susceptible, could never tolerate such illegality and the illegally appointed person being product of spoiled system, however, the declaration of such appointment of the beneficiary candidate to be a defective output or ingenuine product is to be made undergoing a process or by making inquiry or prode, needed in facts and circumstances in reference to the complaint or on the information to the State or Competent Authority. However, such probe or inquiry is for the specific purpose unlike disciplinary inquiry, nevertheless is to be exhaustive and broad based to such an extent so that in its optimum amplitude and horizon the effected party being a beneficiary candidate may also be given a chance by associating himself to consider his stand and or say treating him a necessary ingredient or component and also in order that all possible aspects might be taken care of indicated above in the process and no scope is left or nothing remains or desired to be placed or incorporated on the part of the beneficiary candidate before finalisation of the verdict or declaration in respect of the ingenuinity or defectiveness or illegalities of selection or appointment or benefits/gains in any form. The social order, healthy system, interest of justice and interest of public requires that if any person has procured appointment by utilizing forged degree or certificate or wrong date of birth or erroneous qualification or has used concocted documents to/procure employment then service of such person if terminated by the Court on the sole ground of non-providing of opportunity of hearing or principle of natural justice then this may give unusual message tantamounting acknowledging such deficiencies and illegalities being completely ignored or rectified because the ingenunity and misdeeds and foul play in the background persists in gain or appointment of such beneficiary candidate and it shall always pinch to the system as thorn to the healthy body. Likewise also, if one or many of the persons have procured appointment on the basis of some G.O. notification or order or circular, which later on after inquiry or probe turned out to be bogus, fake and non-existent then before declaring the selection or appointment as ingenuine or defective, if any person out of lot has been inquired into and defectiveness of appointment and selection has been proved then beneficiaries in mass are not to be heard separately. The principle of natural justice need not to be stretched too far so as to include in its ambit and scope of providing of opportunity of bearing a full fledged detail inquiry in respect of deficiencies mentioned in Paragraph 7 above. It all depends on the facts and circumstances. It some document, order notification, circular found to be ingenuine and illegal, however, has been utilised for the purpose of procuring employment then the declaration that such order, document, notification or circular is bogus, forge, fake, non-existent by author or Competent Authority in whose name these are said to be issued, then beneficiary candidates need not be given opportunity of hearing in the light of the verdict of Supreme Court in B. Sheetal Nandwani(supra).
(102) The defects as referred in Paragraph 7 above are few examples only, there may be many more cause depending upon the facts and circumstances affecting the sanctity of appointment or selection or gains derived in any form. Need of hour and public demand is to get best calibre, output or product from the system, for which in deed the productive system has to be made healthy, clean, genuine. In any case everyone discards defective piece as product of spoiled system. If the drawbacks and flaws have cropped up since inception and structural defects inherited in the system of production making it spoiled system, the output/product is bound to be imperfect and defective one, therefore, the defects as indicated or conceived of in Paragraph 7 above are to be eradicated on administrative or judicial side, however, in both fairness and observance of principle of natural justice shall be necessary. The Competent Authority might refer the inquiry report, so made earlier, or look at the proposed inquiry or probe or proceeding to be conducted subsequently taking into consideration records and documents and fixing also specific date, time and place and allowing the beneficiary candidate to avail oral/personal hearing and to adduce evidences and further permission to examine or cross-examine the witnesses. The beneficiary candidate has to be heard so that truth may be arrived at and it could not be said at any stage that something was left from consideration or desired to be incorporated on the part of the beneficiary candidate, the opportunity of hearing to beneficiary candidate is neither farce, nor mandatory or directory, in every case but is most essential ingredient and legal requirement to be adopted to arrive at truth and to achieve finality and precision the finding or declaration. The hearing of the beneficiary candidate is in order to bring perfection in the finding on the issue of appointments or selection or gains derived, by covering vital aspects and broad based parameters, and giving weightage on different parameters involved in inquiry or probe and inhearing before or after in reference to the defects depending upon the facts and circumstances. Sometimes the Competent Authority or Inquiry Officer may concentrate or contemplate much on the documents or records, sometimes on the oral or written evidences only. Sometimes more weightage over the statement of witnesses may be vital. However, all these shall depend upon the requirement of the case and on the wisdom of the Competent Authority. In order to ensure precision and fairness in the finding of the inquiry or probe, the beneficiary candidate as an affected party, is to be heard treating him to be an essential component of the inquiry or the declaration. Providing of opportunity of hearing to the beneficiary candidate in reference to the inquiry or proper or declaration may not be so casual, as the beneficiary candidate may drag on hearing unnecessarily. However, depending on the facts and circumstances in a particular case, even a written submission preferred at the choice of the beneficiary candidate may serve the purpose or may be treated as sufficient for observance of principle of natural justice. If by other than conventional mode, during adjudication by the Court/Tribunal while considering the pleadings of the parties, if the selection or appointment in question is proved or declared as defective then it shall be necessary to hear the affected party in reference to such declaration. If the declaration of the selection or appointment to be defective is not based on inquiry or probe, the beneficiary candidate being affected party may be heard even on subsequent stage, in any case, before passing termination order. In conspectus, the beneficiary candidate being an outcome of such selection, which has been noted to be defective or spoiled selection, on the basis of inquiry or probe acknowledged as such by the Court or Tribunal, shall have no legal right to remain in the employment and is bound to be ceased or ousted in any case but in accordance with law and the affected beneficiary person is either to be heard by associating him in reference to such inquiry or probe or declaration, so that the stand of affected party may be incorporated before taking the decision of ousting him by the Competent Authority.
(103) In view of the foregoing analysis and observation, now, it is clear when any selection/recruitment or appointment to some post was made or benefits/gains are procured illegally and it is noticed on the complaint or at subsequent stage that illegalities, irregularities, improprieties, procedural infirmities and deficiencies and defects have occurred, forgery or foul-play adopted or non-observance of Act, rules, norms were made in process then the beneficiary candidate, who has become output and product of such defective and bad selection or outcome of spoiled system process shall have no right or claim to the post or salary or any consequential benefits in the service by virtue of such selection or appointment or gains in any form being illegal or void or honest and being violate of mandate of provisions of Articles 14 and 16 of Constitution, but before termination or dismissal of such persons or beneficiaries, a proper inquiry associating with such beneficiary candidates shall have to be made by providing them opportunity of hearing in consonance to the principle of natural justice. If at the instance of some complaint or at the instance of Competent Authority or of the State Government or employer, the proper inquiry or probe taking into consideration the facts, circumstances, records, evidences or witnesses has already been made by any of the Competent Authority and person being a beneficiary candidate has been associated in the said inquiry or probe or investigation and such inquiry has been made in consonance to the principle of natural justice then termination of beneficiary candidate in such circumstances shall not be said to be illegal and such beneficiary candidate is not to be given opportunity of hearing any more, but in the circumstances indicated above if the beneficiary candidate by virtue of being a product of a defective selection or process is dismissed or terminated and no inquiry was ever made as indicated above and such termination order if set aside on the ground of not providing of opportunity of hearing in consonance to the principle of natural justice, the Court at its pleasure may direct a fresh inquiry or probe to be made in accordance with law keeping in view the gravity of defects, charges, drawbacks, allegations involved in the said selection as narrated in Paragraph (7) above inherited in the said selection or process or appointment or illegal gains and in order to eradicate defects and evils, which had cropped up or had insinuated from its inception. If the beneficiary candidate is heard in reference to the inquiry or probe or purport by providing him adequate opportunity of hearing in consonance to the principle of natural justice before termination of his service then subsequent another opportunity of hearing shall not be necessary.
(104) In view of the foregoing analysis and observations, the legal propositions are summarised, when the selection or appointment or benefits/ gains in any form procured by one individually or by many collectively on one or other drawbacks or grounds as mentioned above in Paragraph 7 are found to be defective or noted as output of spoiled system then following steps are necessary to be observed :
(i) Keeping in view the facts and circumstances of the particular case and the nature of defects, deficiencies, drawbacks in the process, selection or appointment or in the matters of benefits/gains in any form derived, the Court may evolve any suitable mode and modalities for making inquiry or probe or investigation in order to arrive at truth.
(ii) The beneficiary/candidate is entitled to opportunity of hearing in consonance to the principles of natural justice before termination of his service.
(iii) If there exists multiple deficiencies out of what have been narrated in the Paragraph 7 above or defects are complicated and mixed or issues are infricate for instance, the matter involving bribery, financial irregularities, misuse of powers and offences under Prevention of Corruption Act or involving deep rooted conspiracy then at the command of the relevant Court or at the instance of the State Government or Competent Authority the inquiry or probe or investigation could be made exhaustively, like, disciplinary proceedings as per applicable relevant rules in a particular case apart from examining and investigating other related documents, records, materials or persons relevant and necessary in the finalisation of controversion and scandal, but for that purpose text of allegations with documents, records, evidences relied upon, evidences and witnesses to be adduced, providing of opportunity of oral hearing, and opportunity to cross-examine the witnesses to the affected parties at fixed date, time and place and such inquiry or probe or investigation to be made in consonance to the principle of natural justice.
(iv) If the defects, deficiencies, irregularities etc. are apparent and not complicated consisting of one or more drawbacks as narrated in Paragraph 7 above then only summary inquiry or probe or investigation unlike disciplinary inquiry in consonance to the principle of natural justice in respect of the allegations or defects could be made by examining and having documents, records, materials or persons and taking the responsibility of affected beneficiary party, providing opportunity of bearing to him in consonance to there principle of justice.
(v) Where defects, deficiencies, irregularities, fraud or forgery or admissions in a course or benefits/gains in any form, selections or appointments are referable to the verdict of the Hon’ble Judge or any institutions or institutional head, for instance High Court or Head of Department of the State Government or Constitutional dignitaries, then the controversial or denial of existence of such documents by concerned author are sufficient to annul the benefits/gains in any form derived in selection or appointment by one or many beneficiary candidates and no opportunity of hearing or observance of principle of natural justice shall be necessary in those cases.
(vi) When the beneficiary candidate was already associated and heard by observing principle of natural justice in the inquiry or probe in respect of the selection or appointment or in respect of gains in any form and when the inquiry or probe was made suo-moto or on general or specific complaint made in behalf candidates participation in the selection in question or on the basis of preliminary inquiry conducted for and on behalf of the appointing authority or on the basis of audit or inspection report, the State Government or Competent Authority or employer thereafter has made itself or got conducted a detailed inequity through C.B.I. or an independent agency or Vigilance department or Committee, taking into consideration all the facts, circumstances, records, evidences and witnesses and on the basis of finding arrived at out of such inquiry, and the selection in question is found to be defective on one or more out of above mentioned drawbacks/ grounds, then further opportunity of bearing to the beneficiary candidate before termination of service is not necessary to be given.
(vii) When for one or many of the drawbacks and grounds mentioned in above ‘Paragraph 7’, the gains or selection or appointment is found defective and the termination of the service of the beneficiary candidate is set aside for not providing opportunity of hearing or for non-observance, of principles of natural justice, in those circumstances reinstatement of beneficiary candidate in service with consequential benefits shall not be a usual phenomena.
(viii) Keeping in view the seriousness of defects and drawbacks occurred in the selection or appointment in question, the Court at its pleasure and in the interest of justice and in order to uphold the rule of law, may direct inequity or probe to be made afresh, allowing the participation of the beneficiary candidate with a view to provide opportunity of hearing in consonance to the principles of natural justice and to take decision within a stipulated time and the Court at its pleasure may not allow the reinstatement of such beneficiary candidate being an output of defective selection till a fresh inquiry is conducted and decision is taken in consonance to the directions of the Court.
(ix) The above mentioned drawbacks or defects cropped up or inherited in the selection or. appointment or insinuated from its inception could never be ignored, or overlooked or treated as redundant and could never automatically be said to be rectified or could not be dulcified on the reinstatement of the beneficiary candidate in service when the termination of such beneficiary candidate is set aside on the ground of principle of natural justice, (x) For reinstatement it is not necessary to show sympathy to the beneficiary candidate for his bonafide, or for claim of no fault on his part or for his innocence.
(xi) When the selection or appointment is found to be defective for one or on many grounds or drawbacks mentioned ‘Paragraph 7’ above, the beneficiary candidate is bound to be brought under penal action even if the misdeeds was not directly attributable on his part and the affect of the setting aside the selection in question would mean and connote that the selectee/beneficiary candidate shall have no right to the post or to the salary and the salary and perks received by him by virtue of such illegal and unauthorized appointment is normally to be repaid to the State Government or the employer unless the Court for reasons to be recorded does not pass any order for withholding of repayment in a particular case.
(xii) The Court in there interest of justice and to uphold the dignity of rule of law and to maintain fairness in administration, may indicate or may give liberty to the State Government or employer to proceed to take proper action in accordance with law against those authorities or officers, who were instrumental or involved in such defective and scandalous selection or appointment or illegally extending benefits/gains in any form, so that wrong doers and persons involved might not be ignored for their misdeeds and misconduct.”
11. I have heard learned Counsel for the parties. The exparte inquiry was made in consonance to the law and finding was legally correct. I do find any illegality and impropriety in the dismissal order based on an inquiry made in consonance to the prescribed procedure, therefore, dismissal order is not to be interfered with and taking the date of birth of the petitioner as 12.9.1940 the petitioner has rightly been superannuated by order dated 29.9.2000. I also do not find any illegality and impropriety in the said order, therefore, the order is not to be interfered with in view of the judgment of this Court in Mahendra Mishra (supra). The petitioner having been obtained service by forged documents was not entitled to be retained or kept in service, more so, the petitioner was ousted after making proper inquiry.
12. In view of the above observations, Writ Petition No. 47731 of 2000 and 24854 of 1999 are dismissed and he Writ Petition No. 30769 of 1998 dealing with the suspension has already been become infructuous and in accordingly dismissed.