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Fraud and justice cannot live together. If something obtained by fraud and factum of fraud is proved, things become non-est: Allahabad High Court

Fraud: A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain from another’s loss. Whenever the term fraud or defraud appears in the context of criminal law, two things are automatic to be assumed.

Section 424 The Indian Penal Code (IPC) explains the provisions about the offenses of fraud under Sections 421 to 424.

In Smt. Vibha Shukla and Another vs D.E. (Basic) U.P., Alld. And others (SPECIAL APPEAL NO.-443 of 2002), Allahabad High Court learned bench led by HONOURABLE JUSTICE SYED RAFAT ALAM and HONOURABLE CHIEF JUSTICE RAN VIJAI SINGH opined that if something is obtained by fraud and factum of fraud is proved, things become non-est.

This intra court appeal arises from the judgment and order passed by the learned Single Judge in Writ Petition No. 7619 of 2001 by which the learned Single Judge has dismissed the writ

petition.

FACTS OF THE CASE: The appellants were appointed as Assistant Teachers in a Junior High School after getting approval from the Basic Shiksha Adhikari of appointment. The appellants continued in service and were paid a salary. On 1.1.2001, the Basic Shiksha Adhikari stopped the payment of their salary and in consequence thereof, the Committee of Management also passed an order to the same effect. These orders were the subject matter of challenge in the writ petition. In the counter affidavit, the State-respondents have come up with the case that the posts against which the appellants were appointed, were never sanctioned by the Basic Shiksha Adhikari vide order dated alleged by the appellants, and in fact, Basic Shiksha Adhikari is not the authority competent to create the posts. It is further stated that the Management, in collusion with the appellants had cooked up the matter and appointed the appellants against non-sanctioned posts. It is also stated that in the institution, only five posts were sanctioned and if these appointments are allowed to continue, there would be five additional posts. Taking that into consideration, the learned Single Judge has dismissed the writ petition.

COURTS OBSERVATION: Hon’ble court observed that they do not find any error in the learned Single Judge’s conclusion that the Competent Authority did not afford the appellants an opportunity to be heard before passing the impugned order because, even if they had been given an opportunity, they would not have been able to improve their case because there is no evidence on record that the posts against which the appellants were appointed were sanctioned. The letter of creation of posts, on the other hand, was discovered to be fake. Even if the option had been offered in that case, it would have been a pointless exercise. To put it another way, providing an opportunity at this point would be a pointless formality.

JUDGEMENT: In light of the foregoing, the hon’ble court does not believe that the learned Single Judge’s order is incorrect and hence dismissed this appeal stating that the appellants have never been able to successfully refute the factum of fraud asserted in the counter affidavit by claiming that the posts were actually created by the Basic Shiksha Adhikari via order dated 20.7.1985, implying that the appellants’ appointments are void ab initio.

 

JUDGEMENT REVIEWED BY RIYA DWIVEDI

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