M. Babu v. Kerala State Electricity Board & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 WA.No. 1786 of 2005 --------------------AGAINST THE JUDGEMENT IN WPC.19110/2005 Dated 08/07/2005 .................... APPELLANT: (PETITIONER): --------------------------- M. BABU, LINE MAN GRADE II, ELECTRICAL SECTION, K.S.E.BOARD, PARAD, KANNUR. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENT(S): (RESPONDENTS): ----------------------------- 1. THE KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE ASSISTANT ENGINEER, - K.S.E. BOARD, ELECTRICAL SECTION, PARAD, THOOVAKUNNU P.O., KANNUR. 3. THE KERALA PUBLIC SERVICE COMMISSION, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 4. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, KANNUR. BY SRI.ALEXANDER THOMAS,SC,KPSC FOR R3 & R4 BY SRI. ASOK M.CHERIYAN, SC, KSEB FOR R1-2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.R.** ## **K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ.** ## **------------------------------** ## W.A.NO.1786/2005 **------------------------------** Dated this, the 5[th] day of January, 2010 ## **JUDGMENT** ## **Balakrishnan Nair, J.** The point that arises for decision in this case is whether the time limit prescribed in the relevant Rules for cancellation of an advice by the Public Service Commission will apply to a case of fraud played by the candidate, which was discovered after the time limit. 2. The brief facts of the case are the following: The writ petitioner is the appellant. He applied for the post of Mazdoor in the Kerala State Electricity Board, when applications were invited by the Public Service Commission (for short “PSC”) for the same. He was included in the rank-list published by the PSC. Based on his ranking, he was advised for appointment on 13.9.2002 and he joined service on 21.12.2002. Thereafter, he was promoted as Lineman Grade II on 5.11.2004. While so, the appellant was served with Ext.P2 show cause notice by the PSC WA No.1786/2005 - 2 - on 20.01.2005, proposing to cancel his advice, invoking its power under Rule 22 of the Kerala Public Service Commission Rules of Procedure. He submitted Ext.P4 reply on 10.03.2005. He admitted in the said representation that he has passed the S.S.L.C. Examination as an over-aged private registration candidate. According to the PSC, it did not receive Ext.P4. His advice was cancelled by the PSC, as per Ext.P5 communication dated 6.6.2005. The Writ Petition was filed, challenging Ext.P5 and seeking consequential reliefs. The learned Single Judge dismissed the Writ Petition, relying on the judgment of the Division Bench of this Court in **Kerala Public Service Commission v. Hareendran** [1999(2) KLT 63]. Feeling aggrieved by the said judgment, the writ petitioner has preferred this appeal. 3. The learned counsel for the appellant brought to our notice the decision of the Division Bench of this Court in ## **Appukuttan Pillay v. Kerala Public Service Commission** [1984 KLT 880], wherein this Court interfered with the cancellation of advice of a candidate to a public sector WA No.1786/2005 - 3 - undertaking, on the ground that the action was taken beyond the time limit contained in Rule 3(c) of Part II of the Kerala State and Subordinate Services Rules (for short “KS & SSR”). The learned counsel also brought to our notice the decision in **Kerala Public Service Commission v. Malini** [1996(2) KLT 332]. It was a case wherein the PSC cancelled the advice of a candidate for the reason that she applied simultaneously to two different districts for appointment to the same post, contrary to the specific stipulation contained in the notification. This Court, as per the said decision, interfered with the decision of the PSC on the ground that it was taken beyond the time limit stipulated in the proviso to Rule 3(c) of Part II of the KS & SSR. Therefore, the appellant prayed for quashing Ext.P5, as the order was passed beyond the time limit stipulated in Rule 3(c) of Part II of the KS & SSR. 4. The learned counsel for the PSC, on the other hand, submitted that Rule 3(c) applies only when a mistake is committed by the PSC. In this case, the PSC has not committed any mistake. Immediately on finding that the appellant WA No.1786/2005 - 4 - obtained advice and consequential employment based on a fraud played by him, action was taken to cancel his advice. This is a case of fraud played by the candidate to gain personal benefit to him. The case of such a candidate is not covered by Rule 3(c). In support of that submission, reliance was placed on the decision of this Court in **Kerala Public Service Commission v. Hareendran** (supra). 5. We considered the rival submissions made at the Bar and went through the pleadings and materials on record. Before dealing with them, it is useful to quote Rule 3(c) of Part II of the KS & SSR, which reads as follows: “3.Approved candidates:-(a) ......................... (c) Notwithstanding anything contained in these rules, the Commission shall have the power to cancel the advice for appointment of any candidate to any service if it is subsequently found that such advice was made under some mistake. On such cancellation the appointing authority shall terminate the service of the candidate: Provided that the cancellation of advice for appointment by the Commission and the subsequent termination of service of the candidate by the WA No.1786/2005 - 5 - appointing authority shall be made within a period of one year from the date of such advice. Provided further that, a cancellation of advice under this sub-rule shall be made only after giving the candidate concerned a reasonable opportunity of being heard in the matter. The provisions in this sub-rule shall be deemed to have come into force on the 31[st] July, 1969.” It is common ground that passing S.S.L.C Examination is a disqualification for the post of Mazdoor under the Kerala State Electricity Board. While submitting the application, admittedly, the appellant has already cleared the S.S.L.C Examination. But, suppressing that fact, the application was submitted and entertaining that application, the appellant was included in the rank-list and later, advised for appointment. We notice that in this case, the PSC has not committed any mistake. So, it is not a case covered by Rule 3(c). 6. The decision in **Appukuttan Pillay** 's case (supra) was concerning appointment of Assistant Personnel Officers in the Kerala State Cashew Development Corporation Limited. Rule 3 (c) of Part II of the KS & SSR applies only to Government WA No.1786/2005 - 6 - Servants. It has no application to the employees of a Government Company. Without noticing this crucial fact, the Division Bench in **Appukuttan Pillay** 's case (supra) interfered with the cancellation of advice, relying on Rule 3(c) of Part II of the KS & SSR. So, the said decision rendered based on the mistaken notion that Rule 3(c) will apply to the employees of a Government Company, cannot be relied on as a valid precedent. The decision in **Kerala Public Service Commission v. Malini** [1996(2) KLT 332] was noticed and thereafter the decision in **Kerala Public Service Commission v. Hareendran** [1999(2) KLT 63] was rendered. So, in view of the latter decision, the former decision has considerably lost its authority as a precedent. Further, having regard to the facts of both the cases, we feel that the latter decision in **Kerala Public Service Commission v. Hareendran** (supra) lays down the correct legal position. If a candidate applies for a post, producing a forged qualification certificate and the same is discovered after one year, can it be said that he cannot be terminated because of the time limit under Rule 3(c)? We have no doubt that such an WA No.1786/2005 - 7 - interpretation cannot be placed on Rule 3(c). Nothing gained by playing fraud attains finality. This view is supported by several decisions of the Apex Court. In **A.V.Papayya Sastry v. Govt. of A.P.** [(2007)4 SCC 221], it was held by the Hon'ble Supreme Court as follows: “21. Now, it is well-settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed: ## _'Fraud avoids all judicial acts, ecclesiastical or temporal'_ . 22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order - by the first court or by the final court - has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings. 23. In the leading case of Lazarus Estates Ltd. v. Beasley [(1956)1 All ER 341] Lord Denning observed: (All ER p.345 C) WA No.1786/2005 - 8 - _'No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud.'_ 24. In Duchess of Kingstone, Smith's Leading Cases, 13[th] Edn., p.644, explaining the nature of fraud, de Grey, C.J., stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was 'mistaken', it might be shown that it was 'misled'. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the court was imposed upon or tricked into giving the judgment. 25. It has been said; fraud and justice never dwell together (fraus et jus nunquam cohabitant): or fraud and deceit ought to benefit none (fraud et dolus nemini patrocinari debent). 26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue WA No.1786/2005 - 9 - advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of 'finality of litigation' cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants. 27. In S.P.Chengalvaraya Naidu v. Jagannath [(1994)1 SCC 1] this Court had an occasion to consider the doctrine of fraud and the effect thereof on the judgment obtained by a party. In that case, one A by a registered deed , relinquished all his rights in the suit property in favour of C who sold the property to B. Without disclosing that fact, A filed a suit for possession against B and obtained preliminary decree. During the pendency of an application for final decree, B came to know about the fact of release deed by A in favour of C. He, therefore, contended that the decree was obtained by playing fraud on the court and was a nullity. The trial court upheld the contention and dismissed the application. The High Court, however, set aside the order of the trial court, observing that 'there is no WA No.1786/2005 - 10 - legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence.' B approached this Court. 28. Allowing the appeal, setting aside the judgment of the High Court and describing the observations of the High Court as 'wholly perverse', Kuldip Singh, J stated: (SCC p.5, para 5) _'The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property grabbers, taxevaders, bank-loan dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.'_ 29. The Court proceeded to state: (SCC p.5, para 6) _'A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.'_ 30. The Court concluded: (SCC p.5, para 5) WA No.1786/2005 - 11 - _'The principle of 'finality of litigation' cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants.'_ 31. In Indian Bank v. Satyam Fibres (India) (P) Ltd. [(1996)5 SCC 550], referring to Lazarus Estates [(1956)1 All ER 341] and Smith v. East Elloe Rural Distt. Council [1956 AC 336] this Court stated: (SCC pp.562-63, para 22) _'22. The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud on court. In the case of fraud on a party to the suit or proceedings, the court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the court's business.'_ 32. In United India Insurance Co. Ltd. v. Rajendra Singh [(2000)3 SCC 581] by practising fraud upon the Insurance Company, the claimant obtained an award of compensation from the Motor WA No.1786/2005 - 12 - Accident Claims Tribunal. On coming to know of fraud, the Insurance Company applied for recalling of the award. The Tribunal, however, dismissed the petition on the ground that it had no power to review its own award. The High Court confirmed the order. The Company approached this Court. 33. Allowing the appeal and setting aside the orders, this Court stated: (SCC pp.587-88, paras 15-17) _'15. It is unrealistic to expect the appellant Company to resist a claim at the first instance on the basis of the fraud because the appellant Company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the Company to file a statutory appeal against the award. Not only because of the bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then._ _16. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly-discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No court_ WA No.1786/2005 - 13 - _or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim._ _17. The allegation made by the appellant Insurance Company, that the claimants were not involved in the accident which they described in the claim petitions, cannot be brushed aside without further probe into the matter, for the said allegation has not been specifically denied by the claimants when they were called upon to file objections to the applications for recalling of the awards. The claimants then confined their resistance to the plea that the application for recall is not legally maintainable. Therefore, we strongly feel that the claim must be allowed to be resisted, on the ground of fraud now alleged by the Insurance Company. If we fail to afford to the Insurance Company an opportunity to substantiate their contentions it might certainly lead to a serious miscarriage of justice.' “_ In view of the above authoritative pronouncement, it is clear that not only judicial orders, but also administrative orders obtained by fraud can be recalled at any time. So, the appellant cannot be allowed to take shelter behind any time limit under Rule 3(c) and retain the gain obtained by him by playing fraud on the PSC. Therefore, the learned Single Judge rightly WA No.1786/2005 - 14 - dismissed the Writ Petition. We find no reason to interfere with the same. Accordingly, the Writ Appeal is dismissed. **K. Balakrishnan Nair, Judge.** **C.T.Ravikumar, Judge.** ## **nm**