Madhya Pradesh High Court
Manoj Tyagi vs The State Of Madhya Pradesh on 13 July, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia, Anuradha Shukla
NEUTRAL CITATION NO. 2026:MPHC-GWL:21066
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 13 th OF JULY, 2026
WRIT APPEAL No. 3632 of 2025
MANOJ TYAGI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri M.P.S. Raghuwanshi - Senior Advocate, assisted by Mohd. Amir Khan -
Advocate for appellant.
Shri Ravindra Dixit - Govt. Advocate for respondents/State.
WITH
WRIT APPEAL No. 3352 of 2025
PAVAN TYAGI AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Siddharth Sharma - Advocate for appellants.
Shri Ravindra Dixit - Govt. Advocate for respondents/State.
WRIT APPEAL No. 3365 of 2025
ADITYA SHUKLA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Siddharth Sharma - Advocate for appellant.
Shri Ravindra Dixit - Govt. Advocate for respondents/State.
WRIT APPEAL No. 3629 of 2025
PANKAJ TYAGI AND OTHERS
Versus
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THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri M.P.S. Raghuwanshi - Senior Advocate, assisted by Mohd. Amir Khan -
Advocate for appellants.
Shri Ravindra Dixit - Govt. Advocate for respondents/State.
WRIT APPEAL No. 3659 of 2025
DHARMENDRA SINGH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri M.P.S. Raghuwanshi - Senior Advocate, assisted by Mohd. Amir Khan -
Advocate for appellant.
Shri Ravindra Dixit - Govt. Advocate for respondents/State.
WRIT APPEAL No. 3675 of 2025
RAMROOP TYAGI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Siddharth Sharma - Advocate for appellant.
Shri Ravindra Dixit - Govt. Advocate for respondents/State.
JUDGMENT
Per: Justice Gurpal Singh Ahluwalia
Heard on I.A. Nos. 15533/2025, 15173/2025, 1604/2025, 15486/2025,
15617/2025, 1596/2026. These applications have been filed for condonation of
delay in W.A. Nos. 3632/2025, 3352/2025, 3365/2025, 3629/2025, 3659/2025,
and 3675/2025, respectively.
2. For the reasons mentioned in the applications, the same are allowed and
delay in filing these appeals is hereby condoned.
3. By this common judgment, W.A. Nos. 3632/2025, 3352/2025,
3365/2025, 3629/2025, 3659/2025, and 3675/2025 shall be disposed of. All these
appeals have been filed against the common order dated 19.08.2025 passed by
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learned Single Judge in W.P. Nos. 14681/2023, 30720/2024, 14174/2023,
30720/2024, 14179/2023, and 30720/2024, respectively.
4. Since the question is common in all the cases, therefore, this Court
would consider the facts of W.A. No.3632/2025.
5. It was the case of appellants that an advertisement was issued by
respondents inviting application for filling up the post of Primary Teachers. The
Medical Board had issued disability certificates by assessing the visual disability
of appellants. On the strength of said disability certificates, appellants applied for
appointment to the post of Primary Teacher under the category of visual disability.
Accordingly, they were granted appointment under the said category. Lot of
complaints were received with regard to irregularity in issuance of disability
certificates, therefore, it was decided by respondents to re-examine the disability
certificates submitted by candidates who were granted appointment to the post of
Primary Teacher. It was found that the disability certificates relied upon by
appellants were forged and they were never issued by the Medical Board.
Accordingly, appointment of appellants was cancelled, which was challenged by
them by filing writ petitions.
6. The learned Single Judge by the order impugned dismissed the writ
petitions.
7. Challenging the order passed by learned Single Judge, it is submitted by
counsel for appellants that merely because the disability certificates which were
relied upon by appellants were not found registered in the record of respondents
authority would not mean that disability certificates were forged. It is further
submitted that no opportunity of hearing was given to appellants, otherwise they
would have proved that disability certificates are not forged.
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8. Heard learned counsel for parties.
9. It is not the case of appellants that the disability certificates could have
been issued without registering a case in that regard. Once it was found that the
registration/case numbers of disability certificates were not found in the filing
register of authorities, then the authorities did not commit any mistake by holding
that disability certificates relied upon by appellants are forged. Even, the Writ
Court had directed for reverification of authenticity of disability certificates, and
still the committee found that the disability certificates are false.
10. So far as the question of opportunity of hearing is concerned, it is
suffice to mention here that fraud vitiates every solemn act, and in absence of any
prejudice, the order cannot be quashed merely on the ground of violation of
principle of natural justice.
The Supreme Court in the case of Vishnu Vardhan @ Vishnu Pradhan v.
State of U.P. and others , reported in 2025 SCC OnLine SC 1501 , has held as
under:
“1. In Nidhi Kaim v. State of Madhya Pradesh, a three-Judge Bench of this
Court emphatically asserted “… stated simply, nothing … nothing … and
nothing, obtained by fraud, can be sustained, as fraud unravels everything .”
2. At the end of the last century, this Court in S.P. Chengalvaraya Naidu v.
Jagannath noticed the growing trend of abuse of the process of law by
dishonest litigants playing fraud on courts. Fraud was held to be an act of
deliberate deception with the design of securing something by taking unfair
advantage of another: a deception in order to gain by another’s loss. The
opening paragraph of such decision reads as follows:
“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.
This Court then warned that:
5. 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
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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.
Propertygrabbers, tax-evaders, 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, who’s case is based on falsehood, has
no right to approach the court. He can be summarily thrown out at
any stage of the litigation.
3. “Fraud unravels everything” was famously said by Lord Denning in
Lazarus Estates Ltd. v. Beasley, emphasising that fraud can invalidate
judgments, contracts and all transactions. The principle highlights the
importance of honesty and transparency in legal proceedings and
transactions. However, it is a cardinal principle of law that fraud has to be
pleaded and proved. Order VI Rule 4, of the Civil Procedure Code, 19084
may be referred to ordaining that particulars, inter alia, of fraud have to be
stated in the pleadings.
4. From the multiple decisions of this Court on ‘fraud’, what follows is that
fraud and justice cannot dwell together, the legislature never intends to
guard fraud, the question of limitation to exercise power does not arise, if
fraud is proved, and even finality of litigation cannot be pressed into
service to absurd limits when a fraud is unravelled.”
12. The Supreme Court in the case of A.V. Papayya Sastry v. Govt. of
A.P., reported in (2007) 4 SCC 221 , has held as under:
“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 Lord Denning
observed: (All ER p. 345 C)
“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, 13th 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
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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 (fraus 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 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 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
o f 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 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, tax-evaders, 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.”
(emphasis supplied)
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)
“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. referring to Lazarus
Estates and Smith v. East Elloe Rural Distt. Council this Court stated:
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(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.”
(emphasis supplied)
32. In United India Insurance Co. Ltd. v. Rajendra Singh by practising
fraud upon the Insurance Company, the claimant obtained an award of
compensation from the Motor 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 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
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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.”
(emphasis supplied)”
13. The Supreme Court in the case of Satluj Jal Vidyut Nigam v. Raj
Kumar Rajinder Singh, reported in (2019) 14 SCC 449 , has held as under:
“68. Fraud vitiates every solemn proceeding and no right can be claimed by
a fraudster on the ground of technicalities. On behalf of the appellants,
reliance has been placed on the definition of “fraud” as defined in Black’s
Law Dictionary, which is as under:
“Fraud : (1) A knowing misrepresentation of the truth or
concealment of a material fact to induce another to act to his or her
detriment. Fraud is usually a tort, but in some cases (esp. when the
conduct is wilful) it may be a crime. … (2) A misrepresentation
made recklessly without belief in its truth to induce another person
to act. (3) A tort arising from a knowing misrepresentation,
concealment of material fact, or reckless misrepresentation made to
induce another to act to his or her detriment. (4) Unconscionable
dealing; esp., in contract law, the unconscientious use of the power
arising out of the parties’ relative positions and resulting in an
unconscionable bargain.”
69.Halsbury’s Laws of England has defined “fraud” as follows:
“Whenever a person makes a false statement which he does not
actually and honestly believe to be true, for purpose of civil
liability, the statement is as fraudulent as if he had stated that which
he did know to be true, or know or believed to be false. Proof of
absence of actual and honest belief is all that is necessary to satisfy
the requirement of the law, whether the representation has been
made recklessly or deliberately, indifference or recklessness on the
part of the representor as to the truth or falsity of the representation
affords merely an instance of absence of such a belief.”
70. In Kerr on the Law of Fraud and Mistake, “fraud” has been defined
thus:
“It is not easy to give a definition of what constitutes fraud in the
extensive significance in which that term is understood by Civil
Courts of Justice. The courts have always avoided hampering
themselves by defining or laying down as a general proposition
what shall be held to constitute fraud. Fraud is infinite in variety…
Courts have always declined to define it, … reserving to themselves
the liberty to deal with it under whatever form it may present itself.
Fraud … may be said to include property (sic properly) all acts,
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to another, or by which an undue or unconscientious advantage is
taken of another. All surprise, trick, cunning, dissembling and other
unfair way that is used to cheat anyone is considered as fraud.
Fraud in all cases implies a wilful act on the part of anyone,
whereby another is sought to be deprived, by illegal or inequitable
means, of what he is entitled to.”
71. In Ram Chandra Singh v. Savitri Devi, it was observed that fraud
vitiates every solemn act. Fraud and justice never dwell together and it
cannot be perpetuated or saved by the application of any equitable doctrine
including res judicata. This Court observed as under : (SCC pp. 327-29,
paras 15-18, 23 & 25)
“15. Commission of fraud on court and suppression of material
facts are the core issues involved in these matters. Fraud, as is well
known, vitiates every solemn act. Fraud and justice never dwell
together.
16. Fraud is a conduct either by letter or words, which induces the
other person or authority to take a definite determinative stand as a
response to the conduct of the former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to
fraud. Indeed, innocent misrepresentation may also give reason to
claim relief against fraud.
18. A 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 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.
* * *
23. An act of fraud on court is always viewed seriously. A
collusion or conspiracy with a view to deprive the rights of the
others in relation to a property would render the transaction void ab
initio. Fraud and deception are synonymous.
* * *
25. Although in a given case a deception may not amount to fraud,
fraud is anathema to all equitable principles and any affair tainted
with fraud cannot be perpetuated or saved by the application of any
equitable doctrine including res judicata.”
(emphasis supplied)
72. In Madhukar Sadbha Shivarkar v. State of Maharashtra, this Court
observed that fraud had been played by showing the records and the orders
obtained unlawfully by the declarant, would be a nullity in the eye of the
law though such orders have attained finality. Following observations were
made : (SCC pp. 569-70, para 27)
“27. The said order is passed by the State Government only to
enquire into the landholding records with a view to find out as to
whether original land revenue records have been destroyed and
fabricated to substantiate their unjustifiable claim by playing fraud
upon the Tahsildar and appellate authorities to obtain the orders
unlawfully in their favour by showing that there is no surplus land
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with the Company and its shareholders as the valid sub-leases are
made and they are accepted by them in the proceedings under
Section 21 of the Act, on the basis of the alleged false declarations
filed by the shareholders and sub-lessees under Section 6 of the
Act. The plea urged on behalf of the State Government and the de
facto complainant owners, at whose instance the orders are passed
by the State Government on the alleged ground of fraud played by
the declarants upon the Tahsildar and appellate authorities to get
the illegal orders obtained by them to come out from the clutches of
the land ceiling provisions of the Act by creating the revenue
records, which is the fraudulent act on their part which unravels
everything and therefore, the question of limitation under the
provisions to exercise power by the State Government does not
arise at all. For this purpose, the Deputy Commissioner of Pune
Division was appointed as the enquiry officer to hold such an
enquiry to enquire into the matter and submit his report for
consideration of the Government to take further action in the
matter. The legal contentions urged by Mr Naphade, in justification
of the impugned judgment and order prima facie at this stage, we
are satisfied that the allegation of fraud in relation to getting the
landholdings of the villages referred to supra by the declarants on
the alleged ground of destroying original revenue records and
fabricating revenue records to show that there are 384 sub-leases of
the land involved in the proceedings to retain the surplus land
illegally as alleged, to the extent of more than 3000 acres of land
and the orders are obtained unlawfully by the declarants in the land
ceiling limits will be nullity in the eye of the law though such
orders have attained finality; if it is found in the enquiry by the
enquiry officer that they are tainted with fraud, the same can be
interfered with by the State Government and its officers to pass
appropriate orders. The landowners are also aggrieved parties to
agitate their rights to get the orders which are obtained by the
declarants as they are vitiated in law on account of nullity is the
tenable submission and the same is well founded and therefore, we
accept the submission to justify the impugned judgment and order
Babu Maruti Dukare v. State of Maharashtra of the Division Bench
of the High Court.”
(emphasis supplied)
73. In Jai Narain Parasrampuria v. Pushpa Devi Saraf, this Court observed
that fraud vitiates every solemn act. Any order or decree obtained by
practising fraud is a nullity. This Court held as under:
“55. It is now well settled that fraud vitiates all solemn act. Any
order or decree obtained by practising fraud is a nullity. [See (1)
Ram Chandra Singh v. Savitri Devi followed in (2) Kendriya
Vidyalaya Sangathan v. Girdharilal Yadav ; (3) State of A.P. v. T.
Suryachandra Rao; (4) Ishwar Dutt v. LAO; (5) Lillykutty v.
Scrutiny Committee, SC & ST; (6) Maharashtra SEB v. Suresh
Raghunath Bhokare; (7) Satya v. Teja Singh; (8) Mahboob Sahab v.
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Syed Ismail; and (9) Asharfi Lal v. Koili“
(emphasis supplied)
74. In State of A.P. v. T. Suryachandra Rao, it was observed that where the
land which was offered for surrender had already been acquired by the
State and the same had vested in it. It was held that merely because an
enquiry was made, the Tribunal was not divested of the power to correct
the error when the respondent had clearly committed a fraud. Following
observations were made : (SCC pp. 152-53 & 155, paras 7-10 & 13-16)
“7. The order of the High Court is clearly erroneous. There is no
dispute that the land which was offered for surrender by the
respondent had already been acquired by the State and the same had
vested in it. This was clearly a case of fraud. Merely because an
enquiry was made, the Tribunal was not divested of the power to
correct the error when the respondent had clearly committed a
fraud.
8. By “fraud” is meant an intention to deceive; whether it is from
any expectation of advantage to the party himself or from ill-will
towards the other is immaterial. The expression “fraud” involves
two elements, deceit and injury to the person deceived. Injury is
something other than economic loss, that is, deprivation of
property, whether movable or immovable or of money and it will
include any harm whatever caused to any person in body, mind,
reputation or such others. In short, it is a non-economic or non-
pecuniary loss. A benefit or advantage to the deceiver, will almost
always cause loss or detriment to the deceived. Even in those rare
cases where there is a benefit or advantage to the deceiver, but no
corresponding loss to the deceived, the second condition is
satisfied. [See Vimla v. Delhi Admn. and Indian Bank v. Satyam
Fibres (India) (P) Ltd.]
9. 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 by another’s loss. It is a cheating intended
to get an advantage. (See S.P. Chengalvaraya Naidu v. Jagannath.)
10. “Fraud” as is well known vitiates every solemn act. Fraud and
justice never dwell together. Fraud is a conduct either by letter or
words, which includes the other person or authority to take a
definite determinative stand as a response to the conduct of the
former either by words or letter. It is also well settled that
misrepresentation itself amounts to fraud. Indeed, innocent
misrepresentation may also give reason to claim relief against
fraud. A 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 party makes
representations, which he knows to be false, and injury enures
therefrom although the motive from which the representations
proceeded may not have been bad. An act of fraud on court is
always viewed seriously. A collusion or conspiracy with a view to
deprive the rights of the others in relation to a property would
render the transaction void ab initio. Fraud and deception are
synonymous. Although in a given case a deception may not amount
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to fraud, fraud is an anathema to all equitable principles and any
affair tainted with fraud cannot be perpetuated or saved by the
application of any equitable doctrine including res judicata. (See
Ram Chandra Singh v. Savitri Devi.)
* * *
13. This aspect of the matter has been considered recently by this
Court in Roshan Deen v. Preeti Lal, Ram Preeti Yadav v. U.P.
Board of High School and Intermediate Education , Ram Chandra
Singh v. Savitri Devi and Ashok Leyland Ltd. v. State of T.N.
14. Suppression of a material document would also amount to a
fraud on the court. (See Gowrishankar v. Joshi Amba Shankar
Family Trust and S.P. Chengalvaraya Naidu v. Jagannath.)
15. “Fraud” is a conduct either by letter or words, which induces
the other person or authority to take a definite determinative stand
as a response to the conduct of the former either by words or letter.
Although negligence is not fraud but it can be evidence of fraud; as
observed in Ram Preeti Yadav.
16. In Lazarus Estates Ltd. v. Beasley, Lord Denning observed at
QB pp. 712 and 713 : (All ER p. 345 C)
‘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.’
In the same judgment, Lord Parker, L.J. observed that fraud
‘vitiates all transactions known to the law of however high a degree
of solemnity’ (All ER p. 351 E-F).”
(emphasis supplied)
75. In A.V. Papayya Sastry v. State of A.P. , this Court as to the effect of
fraud on the judgment or order observed thus : (SCC pp. 231 & 236-37,
paras 21-22 & 38-39)
“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.
* * *
38. The matter can be looked at from a different angle as well.
Suppose, a case is decided by a competent court of law after
hearing the parties and an order is passed in favour of the plaintiff
applicant which is upheld by all the courts including the final court.
Let us also think of a case where this Court does not dismiss special
leave petition but after granting leave decides the appeal finally by
recording reasons. Such order can truly be said to be a judgment to
which Article 141 of the Constitution applies. Likewise, the
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doctrine of merger also gets attracted. All orders passed by the
courts/authorities below, therefore, merge in the judgment of this
Court and after such judgment, it is not open to any party to the
judgment to approach any court or authority to review, recall or
reconsider the order.
39. The above principle, however, is subject to exception of fraud.
Once it is established that the order was obtained by a successful
party by practising or playing fraud, it is vitiated. Such order cannot
be held legal, valid or in consonance with law. It is non-existent and
non est and cannot be allowed to stand. This is the fundamental
principle of law and needs no further elaboration. Therefore, it has
been said that a judgment, decree or order obtained by fraud has to
be treated as a nullity, whether by the court of first instance or by
the final court. And it has to be treated as non est by every court,
superior or inferior.”
Supervisory jurisdiction of the court can be exercised in case of error
apparent on the face of the record, abuse of process and if the issue goes to
the root of the matter.
76. In S.P. Chengalvaraya Naidu v. Jagannath, this Court noted that the
issue of fraud goes to the root of the matter and it exercised powers under
Article 136 to cure the defect. The Court observed : (SCC p. 5, paras 5-6)
“5. The High Court, in our view, fell into patent error. The short
question before the High Court was whether in the facts and
circumstances of this case, Jagannath obtained the preliminary
decree by playing fraud on the court. The High Court, however,
went haywire and made observations which are wholly perverse.
We do not agree with the High Court that ‘there is no legal duty
cast upon the plaintiff to come to court with a true case and prove it
by true evidence’. 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. 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, the process of the court is being abused.
Property-grabbers, tax evaders, 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.
6. The facts of the present case leave no manner of doubt that
Jagannath obtained the preliminary decree by playing fraud on the
court. 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 by another’s loss. It is a cheating intended
to get an advantage. Jagannath was working as a clerk with
Chunilal Sowcar. He purchased the property in the court auction on
behalf of Chunilal Sowcar. He had, on his own volition, executed
the registered release deed (Ext. B-15) in favour of Chunilal Sowcar
regarding the property in dispute. He knew that the appellants had
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paid the total decretal amount to his master Chunilal Sowcar.
Without disclosing all these facts, he filed the suit for the partition
of the property on the ground that he had purchased the property on
his own behalf and not on behalf of Chunilal Sowcar. Non-
production and even non-mentioning of the release deed at the trial
is tantamount to playing fraud on the court. We do not agree with
the observations of the High Court that the appellant-defendants
could have easily produced the certified registered copy of Ext. B-
15 and non-suited the plaintiff. 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.”
77. In K.K. Modi v. K.N. Modi, it was observed that one of the examples
cited as an abuse of the process of the court is re-litigation. It is an abuse of
the process of the court and contrary to justice and public policy for a party
to re-litigate the same issue which has already been tried and decided
earlier against him.”
The Supreme Court in the case of Behari Kunj Sahkari Avas Samiti v.
State of U.P. and others, reported in (2008) 12 SCC 306 , has held as under :
“22. In State of A.P. v. T. Suryachandra Rao [(2005) 6 SCC 149] it was
observed as follows : (SCC pp. 152-54, paras 8-11)” 8 . By ‘fraud’ is meant an intention to deceive; whether it is
from any expectation of advantage to the party himself or from
ill will towards the other is immaterial. The expression ‘fraud’
involves two elements, deceit and injury to the person
deceived. Injury is something other than economic loss, that is,
deprivation of property, whether movable or immovable or of
money and it will include any harm whatever caused to any
person in body, mind, reputation or such others. In short, it is a
non-economic or non-pecuniary loss. A benefit or advantage to
the deceiver, will almost always cause loss or detriment to the
deceived. Even in those rare cases where there is a benefit or
advantage to the deceiver, but no corresponding loss to the
deceived, the second condition is satisfied. [See Vimla (Dr.) v.
Delhi Admn . [AIR 1963 SC 1572 : 1963 Supp (2) SCR 585]
and Indian Bank v. Satyam Fibres (India) (P) Ltd. [(1996) 5
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9 . 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 by another’s loss. It is a cheating
intended to get an advantage. (See S.P. Chengalvaraya Naidu v.
Jagannath [(1994) 1 SCC 1] .)
10. ‘Fraud’ as is well known vitiates every solemn act. Fraud
and justice never dwell together. Fraud is a conduct either by
letter or words, which includes the other person or authority to
take a definite determinative stand as a response to the conduct
of the former either by words or letter. It is also well settled
that misrepresentation itself amounts to fraud. Indeed, innocent
misrepresentation may also give reason to claim relief against
fraud. A 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 party makes representations, which he knows to be false,
and injury enures therefrom although the motive from which
the representations proceeded may not have been bad. An act of
fraud on court is always viewed seriously. A collusion or
conspiracy with a view to deprive the rights of the others in
relation to a property would render the transaction void ab
initio. Fraud and deception are synonymous. Although in a
given case a deception may not amount to fraud, fraud is
anathema to all equitable principles and any affair tainted with
fraud cannot be perpetuated or saved by the application of any
equitable doctrine including res judicata. (See Ram Chandra
Singh v. Savitri Devi [(2003) 8 SCC 319] .)
11. ‘Fraud’ and collusion vitiate even the most solemn
proceedings in any civilised system of jurisprudence. It is a
concept descriptive of human conduct. Michael Levi likens a
fraudster to Milton’s sorcerer, Comus, who exulted in his
ability to, ‘wing me into the easy-hearted man and trap him
into snares’. It has been defined as an act of trickery or deceit.
I n Webster’s Third New International Dictionary, ‘fraud’ in
equity has been defined as an act or omission to act or
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forbids as being prejudicial to another. In Black’s Law
Dictionary, ‘fraud’ is defined as an intentional perversion of
truth for the purpose of inducing another in reliance upon it to
part with some valuable thing belonging to him or surrender a
legal right. A false representation of a matter of fact, whether
by words or by conduct, by false or misleading allegations, or
by concealment of that which should have been disclosed,
which deceives and is intended to deceive another so that he
shall act upon it to his legal injury. In Concise Oxford
Dictionary, it has been defined as criminal deception, use of
false representation to gain unjust advantage; dishonest artifice
or trick. According to Halsbury’s Laws of England, a
representation is deemed to have been false, and therefore a
misrepresentation, if it was at the material date false in
substance and in fact. Section 17 of the Contract Act, 1872
defines ‘fraud’ as act committed by a party to a contract with
the intent to deceive another. From dictionary meaning or even
otherwise fraud arises out of deliberate active role of
representator about a fact, which he knows to be untrue yet he
succeeds in misleading the representee by making him believe
it to be true. The representation to become fraudulent must be
of fact with knowledge that it was false. In a leading English
case i.e. Derry v. Peek [(1889) 14 AC 337 : (1886-90) All ER
Rep 1 (HL)] what constitutes ‘fraud’ was described thus : (All
ER p. 22 B-C)‘… “fraud” is proved when it is shown that a false
representation has been made (i) knowingly, or (ii)
without belief in its truth, or (iii) recklessly, careless
whether it be true or false.’But ‘fraud’ in public law is not the same as ‘fraud’ in private
law. Nor can the ingredients, which establish ‘fraud’ in
commercial transaction, be of assistance in determining fraud
in administrative law. It has been aptly observed by Lord
Bridge in Khawaja v. Secy. of State for Home Deptt. [1984 AC
74 : (1983) 2 WLR 321 : (1983) 1 All ER 765 (HL)] that it is
dangerous to introduce maxims of common law as to effect of
fraud while determining fraud in relation of statutory law.
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‘Fraud’ in relation to statute must be a colourable transaction to
evade the provisions of a statute.
’20. … “If a statute has been passed for some one
particular purpose, a court of law will not countenance
any attempt which may be made to extend the
operation of the Act to something else which is quite
foreign to its object and beyond its scope.” Present-day
concept of fraud on statute has veered round abuse of
power or mala fide exercise of power. It may arise due
to overstepping the limits of power or defeating the
provision of statute by adopting subterfuge or the
power may be exercised for extraneous or irrelevant
considerations. The colour of fraud in public law or
administrative law, as it is developing, is assuming
different shades. It arises from a deception committed
by disclosure of incorrect facts knowingly and
deliberately to invoke exercise of power and procure an
order from an authority or tribunal. It must result in
exercise of jurisdiction which otherwise would not have
been exercised. That is misrepresentation must be in
relation to the conditions provided in a section on
existence or non-existence of which the power can be
exercised. But non-disclosure of a fact not required by a
statute to be disclosed may not amount to fraud. Even
in commercial transactions non-disclosure of every fact
does not vitiate the agreement. “In a contract every
person must look for himself and ensure that he
acquires the information necessary to avoid bad
bargain.” In public law the duty is not to deceive.’ (See
Shrisht Dhawan v. Shaw Bros. [(1992) 1 SCC 534] ,
SCC p. 554, para 20.)”
This aspect of the matter has been considered by this Court in
Roshan Deen v. Preeti Lal [(2002) 1 SCC 100 : 2002 SCC
(L&S) 97] , Ram Preeti Yadav v. U.P. Board of High School
and Intermediate Education [(2003) 8 SCC 311] , Ram Chandra
Singh case [(2003) 8 SCC 319] , Ashok Leyland Ltd. v. State
of T.N. [(2004) 3 SCC 1] and State of A.P. v. T. Suryachandra
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Rao [(2005) 6 SCC 149] .
” 14. Suppression of a material document would also amount to a
fraud on the court. (See Gowrishankar v. Joshi Amba Shankar
Family Trust [(1996) 3 SCC 310] and S.P. Chengalvaraya Naidu
case [(1994) 1 SCC 1] .)
15. ‘Fraud’ is a conduct either by letter or words, which induces the
other person or authority to take a definite determinative stand as a
response to the conduct of the former either by words or letter.
Although negligence is not fraud but it can be evidence on fraud; as
observed in Ram Preeti Yadav case [(2003) 8 SCC 311] .
16. In Lazarus Estates Ltd. v. Beasley [(1956) 1 QB 702 : (1956) 2
WLR 502 : (1956) 1 All ER 341 (CA)] Lord Denning observed at
QB pp. 712 and 713 : (All ER p. 345 C)‘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.’In the same judgment Lord Parker, L.J. observed that fraud
‘vitiates all transactions known to the law of however high a
degree of solemnity’. [Ed. : (1956) 1 All ER 341 at p. 351 E-F.]
” [Ed. : Quoting from State of A.P. v. T. Suryachandra Rao,
(2005) 6 SCC 149, p. 155, paras 14-16.] “
The Supreme Court in Sonamati Devi and others Vs. Mahendra
Vishwakarma and others , decided in Civil Appeal No.5717/2021 on 15.09.2021,
has held as under:
“It is well known that fraud vitiates every solemn act. ”
The Co-ordinate Bench of this Court in the case of State of M.P. and others
Vs. Rakesh Manjhi, reported in 2026 (2) MPLJ 102 , has held as under:
“22. Under these circumstances, it is clear that once an order of
appointment was obtained by playing fraud by filing forged documents and
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by respondent was a forged document, was never challenged by the
respondent while arguing the writ petition before the Single Judge, this
Court is of considered opinion that it is a case of fraud, and under these
circumstances, it was not necessary for appellants to adhere to the
principles of natural justice. Furthermore, respondent has not pointed out
any prejudice which has been caused to him on account of non grant of
opportunity of hearing for the simple reason that he did not challenge the
order of termination on merits.
23. Considering the totality of facts and circumstances of the case, this
Court is of considered opinion that the case in hand is duly covered by the
judgment passed by Division Bench of this Court in the case of Shailesh
Singh Bhadoriya (supra), and accordingly, learned Single Judge committed
a material illegality by setting aside the order dated 27-5-2019 passed by
Superintendent of Police, Gwalior on the ground of non-compliance of
principles of natural justice.”
11. Even otherwise, doctrine of natural justice has undergone a lot of
changes. Unless and until a person points out the prejudice which he has suffered
on account of non-grant of opporutnity of hearing, the order cannot be quahsed.
The Supreme Court in the case of State Bank of Patiala and others Vs. S.K.
Sharma, reported in (1996) 3 SCC 364 , has held as under:
” 33. We may summarise the principles emerging from the above
discussion. (These are by no means intended to be exhaustive and are
evolved keeping in view the context of disciplinary enquiries and orders of
punishment imposed by an employer upon the employee):
(1) An order passed imposing a punishment on an employee
consequent upon a disciplinary/departmental enquiry in violation of
the rules/regulations/statutory provisions governing such enquiries
should not be set aside automatically. The Court or the Tribunal
should enquire whether (a ) the provision violated is of a substantive
nature or (b ) whether it is procedural in character.
(2) A substantive provision has normally to be complied with as
explained hereinbefore and the theory of substantial compliance or
the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is
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this: procedural provisions are generally meant for affording a
reasonable and adequate opportunity to the delinquent
officer/employee. They are, generally speaking, conceived in his
interest. Violation of any and every procedural provision cannot be
said to automatically vitiate the enquiry held or order passed. Except
cases falling under — “no notice”, “no opportunity” and “no
hearing” categories, the complaint of violation of procedural
provision should be examined from the point of view of prejudice,
viz., whether such violation has prejudiced the delinquent
officer/employee in defending himself properly and effectively. If it
is found that he has been so prejudiced, appropriate orders have to
be made to repair and remedy the prejudice including setting aside
the enquiry and/or the order of punishment. If no prejudice is
established to have resulted therefrom, it is obvious, no interference
is called for. In this connection, it may be remembered that there
may be certain procedural provisions which are of a fundamental
character, whose violation is by itself proof of prejudice. The Court
may not insist on proof of prejudice in such cases. As explained in
the body of the judgment, take a case where there is a provision
expressly providing that after the evidence of the
employer/government is over, the employee shall be given an
opportunity to lead defence in his evidence, and in a given case, the
enquiry officer does not give that opportunity in spite of the
delinquent officer/employee asking for it. The prejudice is self-
evident. No proof of prejudice as such need be called for in such a
case. To repeat, the test is one of prejudice, i.e., whether the person
has received a fair hearing considering all things. Now, this very
aspect can also be looked at from the point of view of directory and
mandatory provisions, if one is so inclined. The principle stated
under (4) hereinbelow is only another way of looking at the same
aspect as is dealt with herein and not a different or distinct principle.
(4)( a ) In the case of a procedural provision which is not of a
mandatory character, the complaint of violation has to be examined
from the standpoint of substantial compliance. Be that as it may, the
order passed in violation of such a provision can be set aside only
where such violation has occasioned prejudice to the delinquent
employee.
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(b ) In the case of violation of a procedural provision, which is of a
mandatory character, it has to be ascertained whether the provision is
conceived in the interest of the person proceeded against or in public
interest. If it is found to be the former, then it must be seen whether
the delinquent officer has waived the said requirement, either
expressly or by his conduct. If he is found to have waived it, then the
order of punishment cannot be set aside on the ground of the said
violation. If, on the other hand, it is found that the delinquent
officer/employee has not waived it or that the provision could not be
waived by him, then the Court or Tribunal should make appropriate
directions (include the setting aside of the order of punishment),
keeping in mind the approach adopted by the Constitution Bench in
B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993)
25 ATC 704] . The ultimate test is always the same, viz., test of
prejudice or the test of fair hearing, as it may be called.
(5) Where the enquiry is not governed by any
rules/regulations/statutory provisions and the only obligation is to
observe the principles of natural justice — or, for that matter,
wherever such principles are held to be implied by the very nature
and impact of the order/action — the Court or the Tribunal should
make a distinction between a total violation of natural justice (rule of
audi alteram partem) and violation of a facet of the said rule, as
explained in the body of the judgment. In other words, a distinction
must be made between “no opportunity” and no adequate
opportunity, i.e., between “no notice”/”no hearing” and “no fair
hearing”. (a ) In the case of former, the order passed would
undoubtedly be invalid (one may call it ‘void’ or a nullity if one
chooses to). In such cases, normally, liberty will be reserved for the
Authority to take proceedings afresh according to law, i.e., in
accordance with the said rule (audi alteram partem). (b ) But in the
latter case, the effect of violation (of a facet of the rule of audi
alteram partem) has to be examined from the standpoint of prejudice;
in other words, what the Court or Tribunal has to see is whether in
the totality of the circumstances, the delinquent officer/employee did
or did not have a fair hearing and the orders to be made shall depend
upon the answer to the said query. [It is made clear that this principle
(No. 5) does not apply in the case of rule against bias, the test in
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which behalf are laid down elsewhere.]
(6) While applying the rule of audi alteram partem (the primary
principle of natural justice) the Court/Tribunal/Authority must
always bear in mind the ultimate and overriding objective underlying
the said rule, viz., to ensure a fair hearing and to ensure that there is
no failure of justice. It is this objective which should guide them in
applying the rule to varying situations that arise before them.
(7) There may be situations where the interests of State or public
interest may call for a curtailing of the rule of audi alteram partem.
In such situations, the Court may have to balance public/State
interest with the requirement of natural justice and arrive at an
appropriate decision.”
The Supreme Court in the case of Indu Bhushan Dwivedi Vs. State of
Jharkhand and another, reported in (2010) 11 SCC 278 , has held as under:
“24. However, every violation of the rules of natural justice may not be
sufficient for invalidating the action taken by the competent
authority/employer and the Court may refuse to interfere if it is convinced
that such violation has not caused prejudice to the affected
person/employee.”
The Supreme Court in the case of Nirma Industries Limited and another
Vs. Securities and Exchange Board of India reported in (2013) 8 SCC 20 has held
as under :-
“30. In B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993)
25 ATC 704] , having defined the meaning of “civil consequences”, this
Court reiterated the principle that the Court/Tribunal should not
mechanically set aside the order of punishment on the ground that the
report was not furnished to the employee. It is only if the Court or Tribunal
finds that the furnishing of the report would have made a difference to the
result in the case that it should set aside the order of punishment. In other
words, the Court reiterated that the person challenging the order on the
basis that it is causing civil consequences would have to prove the
prejudice that has been caused by the non- grant of opportunity of hearing.
………..
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35. Mr Venugopal has further pointed out that apart from the appellants,
even the merchant bankers did not make a request for a personal hearing.
He submitted that grant of an opportunity for a personal hearing cannot be
insisted upon in all circumstances. In support of this submission, he relied
on the judgment of this Court in Union of India v. Jesus Sales Corpn.
[(1996) 4 SCC 69] The submission cannot be brushed aside in view of the
observations made by this Court in the aforesaid judgment, which are as
under: (SCC pp. 74-75, para 5)
“5. The High Court has primarily considered the question as to
whether denying an opportunity to the appellant to be heard
before his prayer to dispense with the deposit of the penalty is
rejected, violates and contravenes the principles of natural
justice. In that connection, several judgments of this Court have
been referred to. It need not be pointed out that under different
situations and conditions the requirement of compliance with
the principle of natural justice vary. The courts cannot insist
that under all circumstances and under different statutory
provisions personal hearings have to be afforded to the persons
concerned. If this principle of affording personal hearing is
extended whenever statutory authorities are vested with the
power to exercise discretion in connection with statutory
appeals, it shall lead to chaotic conditions. Many statutory
appeals and applications are disposed of by the competent
authorities who have been vested with powers to dispose of the
same. Such authorities which shall be deemed to be quasi-
judicial authorities are expected to apply their judicial mind
over the grievances made by the appellants or applicants
concerned, but it cannot be held that before dismissing such
appeals or applications in all events the quasi-judicial
authorities must hear the appellants or the applicants, as the case
may be. When principles of natural justice require an
opportunity to be heard before an adverse order is passed on
any appeal or application, it does not in all circumstances mean
a personal hearing. The requirement is complied with by
affording an opportunity to the person concerned to present his
case before such quasi-judicial authority who is expected to
apply his judicial mind to the issues involved. Of course, if in
his own discretion if he requires the appellant or the applicant
to be heard because of special facts and circumstances of the
case, then certainly it is always open to such authority to decide
the appeal or the application only after affording a personal
hearing. But any order passed after taking into consideration
the points raised in the appeal or the application shall not be
held to be invalid merely on the ground that no personal hearing
had been afforded.”
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The Supreme Court in the case of Chairman, State Bank of India and
another Vs. M.J. James reported in (2022) 2 SCC 301 has held as under :-
“31. In State of U.P. v. Sudhir Kumar Singh [State of U.P. v. Sudhir Kumar
Singh, (2021) 19 SCC 706 : 2020 SCC OnLine SC 847] referring to the
aforesaid cases and several other decisions of this Court, the law was
crystallised as under : (SCC para 42)“42. An analysis of the aforesaid judgments thus reveals:
42.1. Natural justice is a flexible tool in the hands of the
judiciary to reach out in fit cases to remedy injustice. The
breach of the audi alteram partem rule cannot by itself,
without more, lead to the conclusion that prejudice is
thereby caused.
42.2. Where procedural and/or substantive provisions of
law embody the principles of natural justice, their
infraction per se does not lead to invalidity of the orders
passed. Here again, prejudice must be caused to the
litigant, except in the case of a mandatory provision of
law which is conceived not only in individual interest, but
also in public interest.
42.3. No prejudice is caused to the person complaining of
the breach of natural justice where such person does not
dispute the case against him or it. This can happen by
reason of estoppel, acquiescence, waiver and by way of
non-challenge or non-denial or admission of facts, in
cases in which the Court finds on facts that no real
prejudice can therefore be said to have been caused to the
person complaining of the breach of natural justice.
42.4. In cases where facts can be stated to be admitted or
indisputable, and only one conclusion is possible, the
Court does not pass futile orders of setting aside or
remand when there is, in fact, no prejudice caused. This
conclusion must be drawn by the Court on an appraisal of
the facts of a case, and not by the authority who denies
natural justice to a person.
42.5. The “prejudice” exception must be more than a
mere apprehension or even a reasonable suspicion of a
litigant. It should exist as a matter of fact, or be based
upon a definite inference of likelihood of prejudice
flowing from the non-observance of natural justice.”
The Supreme Court in the case of Dharampal Satyapal Limited Vs. Deputy
Commissioner of Central Excise, Gauhati and others reported in (2015) 8 SCC
519 has held as under :-
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“20. Natural justice is an expression of English Common Law. Natural
justice is not a single theory–it is a family of views. In one sense
administering justice itself is treated as natural virtue and, therefore, a part
of natural justice. It is also called “naturalist” approach to the phrase
“natural justice” and is related to “moral naturalism”. Moral naturalism
captures the essence of commonsense morality–that good and evil, right
and wrong, are the real features of the natural world that human reason can
comprehend. In this sense, it may comprehend virtue ethics and virtue
jurisprudence in relation to justice as all these are attributes of natural
justice. We are not addressing ourselves with this connotation of natural
justice here.
21. In Common Law, the concept and doctrine of natural justice,
particularly which is made applicable in the decision-making by judicial
and quasi-judicial bodies, has assumed a different connotation. It is
developed with this fundamental in mind that those whose duty is to
decide, must act judicially. They must deal with the question referred both
without bias and they must give (sic an opportunity) to each of the parties
to adequately present the case made. It is perceived that the practice of
aforesaid attributes in mind only would lead to doing justice. Since these
attributes are treated as natural or fundamental, it is known as “natural
justice”. The principles of natural justice developed over a period of time
and which is still in vogue and valid even today are: (i) rule against bias
i.e. nemo debet esse judex in propria sua causa; and (ii) opportunity of
being heard to the party concerned i.e. audi alteram partem. These are
known as principles of natural justice. To these principles a third principle
is added, which is of recent origin. It is the duty to give reasons in support
of decision, namely, passing of a “reasoned order”.
***
38. But that is not the end of the matter. While the law on the principle of
audi alteram partem has progressed in the manner mentioned above, at the
same time, the courts have also repeatedly remarked that the principles of
natural justice are very flexible principles. They cannot be applied in any
straitjacket formula. It all depends upon the kind of functions performed
and to the extent to which a person is likely to be affected. For this reason,
certain exceptions to the aforesaid principles have been invoked under
certain circumstances. For example, the courts have held that it would be
sufficient to allow a person to make a representation and oral hearing may
not be necessary in all cases, though in some matters, depending upon the
nature of the case, not only full-fledged oral hearing but even cross-
examination of witnesses is treated as a necessary concomitant of the
principles of natural justice. Likewise, in service matters relating to major
punishment by way of disciplinary action, the requirement is very strict and
full-fledged opportunity is envisaged under the statutory rules as well. On
the other hand, in those cases where there is an admission of charge, even
when no such formal inquiry is held, the punishment based on such
admission is upheld. It is for this reason, in certain circumstances, even
post- decisional hearing is held to be permissible. Further, the courts have
held that under certain circumstances principles of natural justice may even
be excluded by reason of diverse factors like time, place, the apprehended
danger and so on.
40. In this behalf, we need to notice one other exception which has been
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carved out to the aforesaid principle by the courts. Even if it is found by the
court that there is a violation of principles of natural justice, the courts have
held that it may not be necessary to strike down the action and refer the
matter back to the authorities to take fresh decision after complying with
the procedural requirement in those cases where non-grant of hearing has
not caused any prejudice to the person against whom the action is taken.
Therefore, every violation of a facet of natural justice may not lead to the
conclusion that the order passed is always null and void. The validity of
the order has to be decided on the touchstone of “prejudice”. The ultimate
test is always the same viz. the test of prejudice or the test of fair hearing.
41. In ECIL [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC
704] , the majority opinion, penned down by Sawant, J., while summing up
the discussion and answering the various questions posed, had to say as
under qua the prejudice principle: (SCC pp. 756-58, para 30)
“30. Hence the incidental questions raised above may be
answered as follows:
***
(v) The next question to be answered is what is the effect
on the order of punishment when the report of the enquiry
officer is not furnished to the employee and what relief
should be granted to him in such cases. The answer to this
question has to be relative to the punishment awarded.
When the employee is dismissed or removed from service
and the inquiry is set aside because the report is not
furnished to him, in some cases the non- furnishing of the
report may have prejudiced him gravely while in other
cases it may have made no difference to the ultimate
punishment awarded to him. Hence to direct reinstatement
of the employee with back wages in all cases is to reduce
the rules of justice to a mechanical ritual. The theory of
reasonable opportunity and the principles of natural
justice have been evolved to uphold the rule of law and to
assist the individual to vindicate his just rights. They are
not incantations to be invoked nor rites to be performed on
all and sundry occasions. Whether in fact, prejudice has
been caused to the employee or not on account of the
denial to him of the report, has to be considered on the
facts and circumstances of each case. Where, therefore,
even after the furnishing of the report, no different
consequence would have followed, it would be a
perversion of justice to permit the employee to resume
duty and to get all the consequential benefits. It amounts
to rewarding the dishonest and the guilty and thus to
stretching the concept of justice to illogical and
exasperating limits. It amounts to an ‘unnatural expansion
of natural justice’ which in itself is antithetical to justice.”
44. At the same time, it cannot be denied that as far as courts are
concerned, they are empowered to consider as to whether any purpose
would be served in remanding the case keeping in mind whether any
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prejudice is caused to the person against whom the action is taken. This
was so clarified in ECIL [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 :
(1993) 25 ATC 704] itself in the following words: (SCC p. 758, para 31)
“31. Hence, in all cases where the enquiry officer’s report is not
furnished to the delinquent employee in the disciplinary
proceedings, the courts and tribunals should cause the copy of
the report to be furnished to the aggrieved employee if he has
not already secured it before coming to the court/tribunal and
given the employee an opportunity to show how his or her case
was prejudiced because of the non-supply of the report. If after
hearing the parties, the court/tribunal comes to the conclusion
that the non-supply of the report would have made no difference
to the ultimate findings and the punishment given, the
court/tribunal should not interfere with the order of punishment.
The court/tribunal should not mechanically set aside the order
of punishment on the ground that the report was not furnished
as is regrettably being done at present. The courts should avoid
resorting to short cuts. Since it is the courts/tribunals which will
apply their judicial mind to the question and give their reasons
for setting aside or not setting aside the order of punishment,
(and not any internal appellate or revisional authority), there
would be neither a breach of the principles of natural justice nor
a denial of the reasonable opportunity. It is only if the
court/tribunal finds that the furnishing of the report would have
made a difference to the result in the case that it should set
aside the order of punishment.”
The Supreme Court in the case of Canara Bank and others v. Debasis Das
and others reported in (2003) 4 SCC 557 has held as under :-
“22. What is known as “useless formality theory” has received
consideration of this Court in M.C. Mehta v. Union of India [(1999) 6 SCC
237] . It was observed as under: (SCC pp. 245-47, paras 22-23)“22. Before we go into the final aspects of this contention, we
would like to state that cases relating to breach of natural justice
do also occur where all facts are not admitted or are not all
beyond dispute. In the context of those cases there is a
considerable case-law and literature as to whether relief can be
refused even if the court thinks that the case of the applicant is
not one of ‘real substance’ or that there is no substantial
possibility of his success or that the result will not be different,
even if natural justice is followed see Malloch v. Aberdeen
Corpn. [(1971) 2 All ER 1278 : (1971) 1 WLR 1578 (HL)] (per
Lord Reid and Lord Wilberforce), Glynn v. Keele University
[(1971) 2 All ER 89 : (1971) 1 WLR 487] , Cinnamond v.
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British Airports Authority [(1980) 2 All ER 368 : (1980) 1
WLR 582 (CA)] and other cases where such a view has been
held. The latest addition to this view is R. v. Ealing
Magistrates’ Court, ex p Fannaran [(1996) 8 Admn LR 351]
(Admn LR at p. 358) [see de Smith, Suppl. p. 89 (1998)] where
Straughton, L.J. held that there must be ‘demonstrable beyond
doubt’ that the result would have been different. Lord Woolf in
Lloyd v. McMahon [(1987) 1 All ER 1118 : 1987 AC 625 :
(1987) 2 WLR 821 (CA)] has also not disfavoured refusal of
discretion in certain cases of breach of natural justice. The New
Zealand Court in McCarthy v. Grant [1959 NZLR 1014]
however goes halfway when it says that (as in the case of bias),
it is sufficient for the applicant to show that there is ‘real
likelihood — not certainty — of prejudice’. On the other hand,
Garner’s Administrative Law (8th Edn., 1996, pp. 271-72) says
that slight proof that the result would have been different is
sufficient. On the other side of the argument, we have apart
from Ridge v. Baldwin [1964 AC 40 : (1963) 2 All ER 66 :
(1963) 2 WLR 935 (HL)] , Megarry, J. in John v. Rees [(1969)
2 All ER 274 : 1970 Ch 345 : (1969) 2 WLR 1294] stating that
there are always ‘open and shut cases’ and no absolute rule of
proof of prejudice can be laid down. Merits are not for the court
but for the authority to consider. Ackner, J. has said that the
‘useless formality theory’ is a dangerous one and, however
inconvenient, natural justice must be followed. His Lordship
observed that ‘convenience and justice are often not on
speaking terms’. More recently, Lord Bingham has deprecated
the ‘useless formality theory’ in R. v. Chief Constable of the
Thames Valley Police Forces, ex p Cotton [1990 IRLR 344] by
giving six reasons. (See also his article ‘Should Public Law
Remedies be Discretionary?’ 1991 PL, p. 64.) A detailed and
emphatic criticism of the ‘useless formality theory’ has been
made much earlier in ‘Natural Justice, Substance or Shadow’
by Prof. D.H. Clark of Canada (see 1975 PL, pp. 27-63)
contending that Malloch [(1971) 2 All ER 1278 : (1971) 1
WLR 1578 (HL)] and Glynn [(1971) 2 All ER 89 : (1971) 1
WLR 487] were wrongly decided. Foulkes (Administrative
Law, 8th Edn., 1996, p. 323), Craig (Administrative Law, 3rd
Edn., p. 596) and others say that the court cannot prejudge what
is to be decided by the decision-making authority. de Smith (5th
Edn., 1994, paras 10.031 to 10.036) says courts have not yet
committed themselves to any one view though discretion is
always with the court. Wade (Administrative Law, 5th Edn.,
1994, pp. 526-30) says that while futile writs may not be
issued, a distinction has to be made according to the nature of
the decision. Thus, in relation to cases other than those relating
to admitted or indisputable facts, there is a considerable
divergence of opinion whether the applicant can be compelled
to prove that the outcome will be in his favour or he has to
prove a case of substance or if he can prove a ‘real likelihood’
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remote chance of success. We may, however, point out that
even in cases where the facts are not all admitted or beyond
dispute, there is a considerable unanimity that the courts can, in
exercise of their ‘discretion’, refuse certiorari, prohibition,
mandamus or injunction even though natural justice is not
followed. We may also state that there is yet another line of
cases as in State Bank of Patiala v. S.K. Sharma [(1996) 3 SCC
364 : 1996 SCC (L&S) 717] , Rajendra Singh v. State of M.P.
[(1996) 5 SCC 460] that even in relation to statutory provisions
requiring notice, a distinction is to be made between cases
where the provision is intended for individual benefit and where
a provision is intended to protect public interest. In the former
case, it can be waived while in the case of the latter, it cannot be
waived.
23. We do not propose to express any opinion on the
correctness or otherwise of the ‘useless formality’ theory and
leave the matter for decision in an appropriate case, inasmuch
as in the case before us, ‘admitted and indisputable’ facts show
that grant of a writ will be in vain as pointed out by Chinnappa
Reddy, J.”
23. As was observed by this Court we need not go into “useless formality
theory” in detail; in view of the fact that no prejudice has been shown. As
is rightly pointed out by learned counsel for the appellants, unless failure of
justice is occasioned or that it would not be in public interest to dismiss a
petition on the fact situation of a case, this Court may refuse to exercise the
said jurisdiction (see Gadde Venkateswara Rao v. Govt. of A.P. [AIR 1966
SC 828] ). It is to be noted that legal formulations cannot be divorced from
the fact situation of the case. Personal hearing was granted by the
Appellate Authority, though not statutorily prescribed. In a given case post-
decisional hearing can obliterate the procedural deficiency of a pre-
decisional hearing. (See Charan Lal Sahu v. Union of India [(1990) 1 SCC
613 : AIR 1990 SC 1480] .)”
12. Accordingly, counsel for appellants were directed to point out as to
whether any of the appellants has/had filed any medical prescription either before
learned Single Judge or before this Court to show that they were suffering from
visual disability. It was fairly conceded by counsel for appellants that no
prescription was filed.
13. Under these circumstances, this Court is of considered opinion that
learned Single Judge did not commit any mistake by dismissing the writ petitions
filed by appellants.
14. Accordingly, the writ appeals fail and are hereby dismissed.
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15. Interim orders are hereby vacated.
16. The appellant shall immediately stop functioning as Primary Teachers.
(G. S. AHLUWALIA) (ANURADHA SHUKLA)
JUDGE JUDGE
AKS
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