S.B. Sinha, C.J.@mdashThe Review Petitioner-appellant in these miscellaneous petitions is aggrieved by the observations made by the Full Bench (to which one of us - G. Bikshapathy. J was a member) in its judgment dated 13.10.1997 to the effect that the leaned Senior Counsel Mr. J.V. Suryanarayana, made a statement before the Full Bench that the appellant has accepted the verdict of the learned single Judge on the alteration of the date of birth of his client and therefore has not availed the benefit of extension of service. The counsel for the review petitioner who is also advocate on record for the review petitioner in the writ appeals - Mr. V. Venkataramana strenuously contends that though the Full Bench specifically framed two questions raised and argued in the writ appeals, this Court did not answer them on a wrong premise that the appellant has accepted the judgment under appeal and thus the Full Bench has not exercised its jurisdiction while deciding the appeals which constituted an error apparent on the face of the record resulting in serious miscarriage of justice.
2. The questions raised before the Full Bench read thus:
i) Does the petitioner in writ petition No. 15363 of 1996 - Andhra Ban Officers Union and Writ Petition No. 11873 of 1996 - Andhra Bank Depositors'' Welfare Association has locus standi to question the correction of the said entry; and
ii) Whether a correction which has been carried out in respect of date of birth of the second respondent and fourth respondent respectively in writ petition Nos. 15363 of 1996 and 11873 of 1996 on the basis of a decree in a civil suit - O.S. No. 170 Of 1987 dated 31.8.1987 can be impugned in a collateral proceeding by way of petition under Article 226 of the Constitution of India.
2. The factual matrix involved in these cases reveal that the review petitioner on the advice of the Management of the Bank filed O.S. No. 170 of 1987 in a competent civil Court for correction of date of birth and correction of educational and service records and it was decreed on 31.8.1987. On an application made by the petitioner, the Bank issued a letter dated 26.12.1987 whereby and whereunder the decree of the civil court was accepted and consequently, the date of birth of the Applicant was corrected from 1.7.1936 to 7.12.1937 and accordingly the same was shown in the seniority list from 1988 onwards.
3. Aggrieved by the action of the Management of the Bank, respondents in these miscellaneous petitions - Andhra Bank Officers'' Union and the Andhra Bank Depositors Welfare Association have filed the said writ petitions.
4. A learned single Judge of this Court observed that the review petitioner played fraud on the Bank to obtain the ex parte decree of the civil Court and got the date of birth altered from 1.7.1936 to 7.12.1937 and that even appeal was not preferred against the judgment and decree presented by the review petitioner, as contemplated by the Regulations of the Bank. The learned Judge after elaborate discussion as to how the review petitioner played fraud for obtaining ex parte decree allowed the writ petitions and also directed the review petitioner to pay costs of Rs. 25,000/-. The learned single Judge also observed:
"... I have elaborately dealt with the role played by the Officers concerned involved in the decision making process which ultimately turned to be a public wrong. Hence, I hope and trust that the Bank will initiate disciplinary proceedings against the Officers concerned including Mr. Reddy for production of a false and fabricated birth extract in the light of the report of D.R.O. Nellore in accordance with law, duly following the principles of natural justice and punish them suitably. If they fail to take the remedial measures by punishing the erring officials the petitioner Union, I hope will take up the matter to see that the guilty are punished."
5. While dismissing the writ appeals filed by the review petitioner herein, the Full Bench held as under.
"Since we have refrained from entering into the issue of locus standi of the petitioner beyond the observations made by us above and since the apprehended precedent for other unscrupulous employees is set aside by the impugned judgment, which is affirmed by us, and we have chosen to set the record straight by removing such stigma, victimisation which would stick upon the appellant for dealing harshly by awarding exemplary costs, we are inclined in the instant case to reduce the penal costs to Rs. 25,000/-to the costs of the proceeding incurred by the petitioner- respondent. Hearing fee of the learned counsel for the petitioner - respondent is fixed as a token at Rs. 2,500/-
6. Mr. Venkata Ramana, learned counsel appearing on behalf of the petitioner, would urge that the Full Bench wrongly recorded:
"Mr. J.V. Suryanarayana, learned counsel for appellant has informed the Court that the appellant; has accepted the verdict of the learned single Judge, and thus has not availed of the benefit of extension of service, as no sooner the judgment was pronounced by the learned single Judge, he was removed from service. We see no useful purpose, thus in recording any specific findings on the questions afore-mentioned which in our view would receive greater consideration of the Court in appropriate case.
7. It was submitted that the petitioner had been pursuing his remedies in all earnest and therefore the question of accepting the finding of the learned single Judge would not arise.
8. It may be noticed that during the course of hearing Mr. J.V. Suryanarayana has not appeared before us. No affidavit has also been filed by the learned counsel denying and disputing his statements recorded in the judgment.
9. It is now trite that the statements of a counsel recorded in a judgment must be presumed to be correct. Mr. Venkataramana himself has also not affirmed any affidavit. In a situation of this nature, we are of the opinion that the Court should not accept the statement made at the Bar denying and disputing the statement made by Sri J.V. Suryanarayana in the judgment.
10. It is well settled that it is not proper on the part of a lawyer to contend in review under appeal, which contains a statement made by another Advocate, that the said statement is not correct.
11. The learned single Judge in his judgment under appeal clearly came to the conclusion that the decree of the Civil Court was obtained by fraud. Fraud as is well known vitiates all solemn acts.
12. In DERRY v. PEEK, 1889 (Vol. XIV) AC 337, the House of Lords in an action of deceit observed:
"In an action of deceit the plaintiff must prove actual fraud. Fraud is proved when it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false...
A false statement, made through carelessness and without reasonable ground for believing it to be true, may be evidence of fraud but does not necessarily amount to fraud. Such a statement, if made in the honest belief that it is true, is not fraudulent and does not render the person making it liable to an action of deceit."
13. In LAZARUS ESTATES LTD. v. BEASLEY 1956 (1) All. ELR 341, Lord Denning speaking for the Court of Appeal observed:
"No Court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever."
14. In
"Fraud avoids all judicial acts, ecclesiastical or temporal, observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings."
5. In
"Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order."
16. In
"It is unrealistic to expect the appellant company to resist a claim at the first instance on the basis of the fraud because 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 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."
17. In
"On cancellation of a wrong SC/ST certificate, the person concerned is not entitled to plead estoppel merely on the ground of having enjoyed the status under such a certificate for a long period. That would amount to protection of the fraud perpetrated and thereby defeat the constitutional objective. In such cases, consequences have to follow. It is for the authorities to determine in what manner it shall be done."
18. In
"A person who plays fraud and obtains a false certificate cannot plead estoppel. The principle of estoppel arises only when a lawful promise was made and acted upon to his detriment; the party making promise is estopped to resile from the promise. In this case, the principle of estoppel is inapplicable because there is no promise made by the State that the State would protect perpetration of fraud defeating the constitutional objective; no promise was made that his false certificate will be respected and accepted by the State. On the other hand, he is liable for a prosecution. The courts would not lend assistance to perpetrate fraud on the Constitution and he cannot be allowed to get the benefit of the fraudulent certificate obtained from the authorities. The declaration issued by the courts below is unconstitutional and without jurisdiction."
19. In
"Where the permission to sell the trust property was obtained by the trustees by playing fraud upon the court, because the highest offer made by the tenants of the trust property was not disclosed to the court and on the contrary it was pleaded by the trustees that inspite of the efforts made by them they could not get higher offer than the one made by the purchaser, the sale was liable to be set aside. In such a case, the fact that the offer made by the tenants was not bona fide would not be material. In such a case, the trustees first could have disclosed the offer of the tenants and then could plead their inability to accept the same detailing the reasons therefor, instead of doing so not only they suppressed that offer but asserted in no uncertain terms that the highest offer received by them was from the purchasers and that it would be difficult to secure other or further offers for the property. In such case the question whether the purchasers purchased the property bona fide subsequent to the permission so granted without notice of the appellants offer would be immaterial."
20. On the "Law of Fraud and Mistake", Kerr in Chapter I expressed that fraud vitiates everything, even judgments and orders of the Court. Principles have been summarised in Chapter VII in the following terms:
"A judgment or decree obtained by fraud upon a Court does not bind such Court or any other, and its nullity upon this ground, though it has not been set aside or reversed, before the Judicature, Acts could be alleged in a collateral proceeding. ....In applying this rule, it matters not whether the judgment impugned has been pronounced by an inferior or by the highest Court of judicature in the realm, but in all cases alike it is competent for every Court, whether superior or inferior, to treat as a nullity any judgment which can be clearly shown to have been obtained by manifest fraud."
21. In UNION OF INDIA v. M. BHASKARAN 1995 SCC (4) 100, it has been held by the Apex Court as under
"If once such fraud is detected, the appointment orders themselves which were found to be tainted and vitiated by fraud and acts of cheating on the part of employees, were liable to be recalled and were at least voidable at the option of the employer concerned. This is precisely what has happened in the present case. Once the fraud of the respondents in getting such employment was detected, the respondents were proceeded against in departmental enquiries and were called upon to have their say and thereafter have been removed from service."
22. What should be the standard of proof in a case of fraud, in his treatise, Kerr relying upon a decision in STIKEMAN v. DAWSON, (1847) 1 De. G & Sim 105, observed:
"Circumstantial evidence is not only sufficient, but in many cases it is the only proof that can be adduced. In matters that regard the conduct of men the certainty of mathematical demonstration cannot be expected or required. Like much of human knowledge on all subjects, fraud may be inferred from facts that are established. Care must be taken not to draw the conclusion hastily from premises that will not warrant it; but a rational belief should not be discarded because it is not conclusively made out. If the facts established afford a sufficient and reasonable ground for drawing the interference of fraud, the conclusion to which the proof tends must, in the absence of explanation, or contradiction be adopted....Fraud may be proved from the acts and conduct of a party as well as from his written declaration. The motives with which an act is done may be, and often are, ascertained and determined by circumstances connected with the transaction, and the parties to it.:.. Though the proof of fraud rests on the party who alleges it, and in the absence of any special relation from which influence is presumed the burden of proof is on the person impeaching the transaction, (b) yet circumstances may exist to shift the burden of proof from the party impeaching a transaction to the party upholding it. If the evidence establishes a prima facie case of fraud, or shows that an instrument is false in any material part, the burden of showing that the transaction was fair lies upon the party who seeks to uphold."
23. The question as to whether a suit for correction of date of birth at the fag end of the career is maintainable was the subject matter of several decisions of the Apex Court.
24. In SECRETARY AND COMMISSIONER, HOME DEPARTMENT v. R. KIRUBAKARAN AIR 1993 SC 2642, it has been held:
"An application for correction of the date of birth should not be dealt with by the tribunal or the High court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotions for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. According to us, this is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case, on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a disrection, on the basis of materials which make such claim only plausible."
25. In
"Entertainment by High Courts of writ applications made by employees of the government or its instrumentalities at the fag end of their services and when they are due for retirement from their services, in our view, is unwarranted. It would be so for the reason that no employee can claim a right to correction of birth date and entertainment of such writ applications for correction of dates of birth of some employees of government or its instrumentalities will mar the chances of promotion of their juniors and prove to be an undue encouragement to the other employees to make similar applications at the fag end of their service careers with the sole object of preventing their retirements when due."
It was further held:
"This entry in the service record made on the basis of the employee''s statement cannot be changed unilaterally at the sweet will of the employee except in the manner permitted by service conditions or the relevant rules. Here again considerations for a change in the date of birth may be diverse and the employer would be entitled to view it not merely from the angle of there being a genuine mistake but also from the point of its impact on the service in the establishment."
It was observed:
"Secondly, would revision of his date of birth after a long lapse of time upset the promotional chances of others in the establishment who may have joined on the basis that the incumbent would retire on a given date opening up promotional avenues for others."
In
"A person whose chance of promotion is likely to affect adversely by virtue of the action on the part of the respondent in expunging the remarks against his senior colleague is entitled to sue that the Government acted beyond the scope of its power in expunging the adverse remarks in the confidential reports of the senior colleague and that expungement of the adverse remarks should be cancelled."
In
"A government servant, after entry into service, acquires the right to continue in service till the age of retirement, as fixed by the State in exercise of its powers regulating conditions of service, unless the services are dispensed with on other grounds contained in the relevant service rules after following the procedure prescribed therein. The date of birth entered in the service records of a civil servant is, thus of utmost importance for the reason that the right to continue in service stands decided by its entry in the service record. A government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age, it is open to a civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the government servant must do so without any unreasonable delay. In the absence of any provision in the rules for correction of date of birth, the general principle of refusing relief on grounds of laches or State claims, is generally applied by the courts and tribunals."
In
"It is unthinkable that having been born in an educated family and having remained in service for 18 years she discovered that her date of birth is wrong. Under these circumstances, the tribunal was wholly unjustified and obviously illegal in allowing the application and directing correction of the date of birth. Though Mr Sen sought to bring to our notice that she made her representation in the year 1981, it is of little importance for disposal of the matter on merits.
26. This aspect of the matter has been recently considered by Kerala High Court in PONNAPPAN v. STATE OF KERALA (2001) 3 (SCT) 941, which quoted with approval a decision of Kerala High Court that the issue regarding correction of date of birth is a matter regarding factual position and when once it is decided by the administrative authority, there arise nothing for interference under Article 226 of the Constitution of India.
27. The termed single Judge had assigned cogent reasons to come to conclusion that the action on the part of the employer in correcting the purported date of birth on the basis of the Civil Court decree was not bona fide. It has categorically been held that except the decree of the Civil Court not even a scrap of paper was filed by the petitioner to establish with cogent evidence his correct date of birth.
28. A finding of fact has been recorded by the learned single Judge to the effect that the document filed by the plaintiff in the suit, who examined himself as P.W.2, had been found to be fabricated document. The learned single Judge also noticed various aspects of the matter as to how the decree was passed within a period of six months and that too in the absence of the concerned defendants, except the University.
29. Learned single Judge noticed that immediately after the decree was passed in the suit filed by the petitioner being O.S. No. 170 of 1987 in the Court of Principal District Munsif, Visakhapatnam, certified copy of the decree was sent together with a letter dated 5-9-1987 by him, which was itself based on a certified copy of alleged date of ''birth and had been accepted without any demur, although the Bank has been contesting the suits filed by the employees for correction of date of birth in different courts. No appeal thereagainst was filed, which according to the learned single Judge was a pointer to the fact that the concerned officers have been colluding with the petitioner herein. It has further been found that even the requirement of the regulations in terms whereof a competent authority comprising of Chairman & Managing Director and another from Central Government would have to lake a decision in relation to service matters of employees, has not been complied with. The learned single Judge also found that the action of the petitioner in filing the suit in the Court at Visakhapatnam, where he was working as Assistant General Manager, and not before the Nellore Court under whose jurisdiction he had allegedly born, would lead to a conclusion that the petitioner got his date of birth altered by playing fraud on the Bank. The learned single Judge was of the opinion that the District Collector, Nellore would have been in better position to speak about the correctness or otherwise of the alleged birth extract produced by the petitioner in the suit.
30. The matter was referred to the Full Bench only because the Division Bench, before whom the appeal was preferred, intended to resolve the question as to whether in exercise of supervisory power and the power of judicial review, the Court was entitled to examine the Civil Court decree is vitiated by fraud and thus is a nullity and whether the Civil Court''s decree is such which would have any effect other than as evidence in support of the claim of the respondent.
31. As indicated hereinbefore, the learned single Judge deprecated the attitude of the applicant herein, who was a Senior Executive in the strongest possible language. The Hon''ble Judges comprising the Full Bench having regard to the aforementioned submission made by Mr. J.V. Suryanarayana did not go into the said question, only the stigma recorded against the petitioner and the penal costs of Rs. 25,000/- imposed upon him was reduced to a token of Rs. 2500/-. Apart from the fact that one of us, who was a party to the Bench, does not remember nor it is possible to remember after such a long lapse of time as to whether such a concession had been made or not, fact of the matter clearly indicates that the same had been done.
32. We, therefore, cannot accept the submission of Mr. Venkataramana. Further more, no case for review of the judgment has also been made out.
33. In
"So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably the two opinions. We may usefully refer to the observations of this Court in the case of
An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ."
34. It is well settled that under the guise of review, the entire matter cannot be reviewed. In STATE OF M.P. v. BABULAL, the Apex Court held that there is no scope for review of entire matter when the grievance of redressal was satisfied by agreement between the parties as noted in the impugned order and the Apex Court rejected the review petition as misconceived one.
35. For the reasons aforementioned, we do not find any merit in the review petitions, which are dismissed accordingly with costs.
