Union of India v. Ram Roop Meena & Ors.

14. We find no reason to interfere with the impugned judgment of the Tribunal.

15. The petitioners cannot be heard to say that there was any fraud or forgery committed by the respondents, for the simple reason that none of the memoranda, whereunder the respondents were directed to return the amounts of LTC availed by them, so allege. Krishna Iyer J, speaking for the Constitution Bench in Mohinder Singh Gill v Chief Election Commissioner[4] has, adopting the words of Vivian Bose J in Commissioner of Police v Gordhandas Bhanji[5], observed thus:

AIR 1952 SC 16 construed objectively with reference to the language used in the order itself.’ Orders are not like old wine becoming better as they grow older.”

16. The aforesaid dictum has been reiterated, times without number, by the Supreme Court, some of the more recent instances when this principle has been applied being found in Opto Circuit India Ltd v Axis Bank[6] and United Air Travel Services v UOI[7]. Thus, an executive order has to stand or fall on the basis of what is contained therein. The reasoning and justification for the order has to be contained in the order itself. The authority cannot be permitted to supplement or improve the order by way of pleadings advanced before a Court, when the order is challenged.

17. This principle, by now fossilised in the law, completely disentitles the petitioners from being permitted to urge or plead that the respondents had committed any financial fraud or forgery. We, in fact, emphatically deprecate the use, by the petitioners, of the word “forgery” and “financial fraud”, when, even on the basis of the allegations now contained in the writ petition, no such case is made out.

18. Allegations of fraud are not to be lightly bandied around, unmindful of whether there is any material to support them. Apropos “fraud”, the Supreme Court, in S.P. Chengalvaraya Naidu v Jagannath[8] observes:

“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.” A more detailed delineation of the contours of “fraud” is to be found in the following passage from Shrisht Dhawan v Shaw Bros[9]: “20. 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. In Webster's Third New International Dictionary fraud in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Legal 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 defines fraud as act committed by a party to a contract with 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 a fact with knowledge that it was false. In a leading English case [Derry v Peek10] what constitutes fraud was described thus: “[F]raud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without

(1889) 14 AC 337 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 Secretary of State for Home Deptt.11, that it is dangerous to introduce maxims of common law as to effect of fraud while determining fraud in relation to statutory law. In Pankaj Bhargava v Mohinder Nath12, it was observed that fraud in relation to statute must be a colourable transaction to evade the provisions of a statute. “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.” [Craies on Statute Law, 7th edn., p. 79] 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 power can be exercised. But nondisclosure of a fact not required by a statute to be disclosed may not amount to fraud. Even in commercial transactions nondisclosure of every fact does not vitiate the agreement. “In a contract every person must look for himself and ensures that he acquires the information necessary to avoid bad bargain.” [Anson's Law of Contract] In public law the duty is not to deceive. For instance non-disclosure of any reason in the application under Section 21 of the Act about its need after expiry of period or failure to give reason that the premises shall be required by son, daughter or any other family member does not result in misrepresentation or fraud. It is not misrepresentation under Section 21 to state that the premises shall be needed by the landlord after expiry of the lease even though the premises in occupation of the landlord on the date of application or, after expiry of period were or may be sufficient. A non-disclosure of fact which is not required by law to be disclosed does not amount (1983) 1 All ER 765 to misrepresentation. Section 21 does not place any positive or comprehensive duty on the landlord to disclose any fact except that he did not need the premises for the specified period. Even the Controller is not obliged with a pro-active duty to investigate. Silence or non-disclosure of facts not required by law to be disclosed does not amount to misrepresentation. Even in contracts it is excluded as is clear from explanation to Section 17 unless it relates to fact which is likely to affect willingness of a person to enter into a contract. Fraud or misrepresentation resulting in vitiation of permission in context of Section 21 therefore could mean disclosure of false facts but for which the Controller would not have exercised jurisdiction.” Animus and intent to deceive is, therefore, the sine qua non for a finding of fraud to be returned.

19. Even if it were to be assumed, for the sake of argument and no more, that the amounts of LTC claimed by the respondents was more than the usual fare for the trips concerned, it would not tantamount to financial fraud or forgery unless there was positive evidence to indicate that the respondents did not, in fact, spend the said amounts while undertaking the trips.

20. In any event, one need not travel down that path, as the sole ground on which the memoranda issued to the respondents called upon them to return the LTC amounts availed by them was that the tickets had been purchased from unauthorized agents. As the Tribunal has rightly held, in the absence of any allegations that the respondents had not, in fact, undertaken the trips against which they availed LTC, recovery of the said amounts could not be legitimately sought merely on the ground that they had not purchased the tickets from unauthorized agents.

21. We are in agreement with the Tribunal that no sustainable ground for recovery of the amounts of LTC claimed and paid to the respondents existed.

22. We see no reason, therefore, to interfere with the order under challenge.

23. The writ petition is accordingly dismissed with no order as to costs.

C. HARI SHANKAR, J.