EX SIG. MAN KANHAIYA KUMAR versus UNION OF INDIA & ORS. on 9 January 2018

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EX SIG. MAN KANHAIYA KUMAR

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UNION OF INDIA & ORS.

(Civil Appeal No(S). 1804 OF 2018)

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JANUARY 09, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Army Act, 1950 – ss.20(3), 122(4) – Dismissal from service –Propriety of – Appellant, enrolled in Army as Sepoy/Washerman,dismissed from service for obtaining enrolment on the basis of fakerelationship certificate – Representation made by appellant,rejected by respondents – Original Application (OA) challengingthe said order filed by appellant before Armed Forces Tribunal(AFT) – AFT upheld the dismissal of appellant from service – Pleaof appellant that there should have been an inquiry into the matteras per the provisions of 1950 Act – Held: Not tenable – Appellanthimself admitted in reply to the show cause notice that his fatherwas not an ex-service man and the Relationship Certificate producedby him was fake – Power of dismissal or removal u/s.20(3) can beexercised if the delinquent has been informed of the particulars ofthe cause of action and allowed reasonable time to state in writingany reasons he may have to urge against his dismissal/removal fromservice – In the present case, such an opportunity was given toappellant – Appellant got enrolment by playing a fraud – Fraudvitiates the entire action – A person having done wrong cannot takeadvantage of his own wrong – Authorities were well within theirright to exercise power u/s.20(3) – Armed Forces – Army Rules,1954 – r.17 – Service Law – Fraud – Maxims – “Nullus CommodumCapere Potest De Injuria Sua Propria”.

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Fraud – Employment obtained by playing fraud –Consequences – Discussed.

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Dismissing the appeal, the Court

HELD: 1.1 A conjoint reading of Section 20 of the ArmyAct,1950 along with Rule 17 of the Army Rules,1954 shows thatpower of dismissal or removal under Section 20(3) can beexercised if the delinquent has been informed of the particularsof the cause of action and allowed reasonable time to state in H679

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Awriting any reasons he may have to urge against his dismissal orremoval from service. In the present case, such an opportunitywas given to the appellant. Gravamen of the charge was that hehad got the enrolment on the basis of a fake RelationshipCertificate. It is pertinent that in reply he admitted the fact thatthe Relationship Certificate produced by him was fake. Thus,Bthe procedure contained in Rule 17 of the Army Rules, 1954 wassubstantially followed. [Para 9] [684-E-G]

1.2 It is also an admitted position that but for the said fakeRelationship Certificate, the appellant could not have gotenrolment in the Army. Thus, he got enrolment by playing a fraud.CThe fraud vitiates the entire action and in such a case theenrolment obtained by the appellant, which was fraudulent. If anyemployment is obtained by committing fraud, the same cannotbe countenanced by a court of law as the employment secured byfraud renders it voidable at the option of employer. [Paras 10, 11]D[684-G-H; 685-A-B]Union of India & Ors. v. M. Bhaskaran [1995] 4 Suppl.SCR 526 : (1995) 4 Suppl. SCC 100 – relied on.

1.3 In the aforesaid scenario, the argument of the appellant thatthere should have been an inquiry into the matter as per the provisions ofEthe Army Act, 1950 is totally untenable. Even otherwise, when theappellant himself had admitted that Relationship Certificate produced byhim was fake, the procedure as laid down in Section 20 of the Army Act,1950 would be an empty formality. A person having done wrong cannottake advantage of his own wrong and plead bar of any law to frustratethe lawful trial by a competent court. [Paras 14, 15] [687-D-F]F

Union of India & Ors. v. Major General Madan LalYadav (Retd.) [1996] 3 SCR 785 : (1996) 4 SCC 127;Ram Saran v. IG of Police, CRPF & Ors. [2006] 1 SCR1102 : (2006) 2 SCC 541; Rajeshwar Baburao Bone v.State of Maharashtra & Anr. [2015] 8 SCR 745 : (2015)G14 SCC 497 – relied on.

Vice-Chairman, Kendriya Vidyalaya Sangathan & Anr.v. Girdharilal Yadav (2004) 6 SCC 325 – referred to.Case Law Reference H[1995] 4 Suppl. SCR 526

relied on

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1804of 2018.

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From the Judgment and Order dated 28.02.2017 by the ArmedForces Tribunal, Principal Bench, New Delhi in O.A. No. 1608 of 2016.

Manjunath Meled, Anuj Saini, Govind, Anil Kumar, Advs. for theAppellant.

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The Judgment of the Court was delivered by

A. K. SIKRI, J. 1. The appellant has filed this appeal, along withapplication for grant of leave to appeal, against the order dated dated28.02.2017 passed by the Armed Forces Tribunal, Principal Bench atNew Delhi( for short, the ‘AFT’), whereby it has dismissed the originalapplication filed by the appellant. Leave to file the present appeal hasalso been rejected by the AFT by a separate order.

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2. Leave to appeal is granted.

3. The facts giving rise to this appeal are that the appellant wasenrolled in the Army as Sepoy/Washerman on 19.01.2009. After about 6years of service a show cause notice was issued on 08.10.2014 allegingoffence of fraudulent enrolment i.e. enrolment in the Army based on afake relationship certificate. On 13.03.2015, the respondent authoritiesdismissed the appellant from service under Section 20(3) of the ArmyAct. The appellant submitted representation before the respondent whichwas not considered in time due to which he filed O.A. No. 773/2015before the AFT and the same was disposed of with a direction to decidethe representation of the appellant. On 09.08.2016 the respondentsrejected the representation of the appellant. The appellant preferred theOriginal Application under Section 14 of the Armed Forces Tribunal Act,2007 challenging the order dated 09.08.2016.

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4. It may be noted that without admitting the formal originalapplication, the AFT had directed the respondent to produce the relevantdocuments. In compliance with the said direction, the RelationshipCertificate dated 09.08.2004 was produced vide reply dated 05.11.2014

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Asubmitted by the appellant to the show cause notice issued by theestablishment. In the reply so submitted the appellant had specificallyadmitted the fact that his father was not an Ex-serviceman and, in fact,he had produced and relied on a fake Relationship Certificate. Therecords pertaining to Army No. 14224588 made available by therespondents clearly showed that number is in respect of Onkar MalBGujar.

5. Taking into consideration the aforesaid admitted facts, the AFTheld that since the appellant got enrolment in the Army by making use ofa fake Relationship Certificate, his dismissal from service on the groundof fraudulent enrolment was perfectly justified and no fault could beCfound with the order of dismissal passed by the establishment.

6. The only ground raised by the learned counsel for the appellantbefore us is that there could not have been an order of dismissal underSection 20(3) of the Army Act,1950 and this general power could nothave been exercised when there is a specific provision to deal with suchDcases laid down in Section 122(4) of the Army Act,1950. He submittedthat as per law laid down by this Court in catena of judgments, thegeneral provision cannot be invoked when there is a specific provision todeal with such situation.

7. In order to appreciate the aforesaid contentions we reproduceESection 20 as well as Section 122 of the Army Act,1950.

“20. Dismissal, removal or reduction by the Chief of the ArmyStaff and by other officers.—

(1) The Chief of the Army Staff may dismiss or remove fromthe service any person subject to this Act other than an officer.F(2) The Chief of the Army Staff may reduce to a lower grade orrank or the ranks, any warrant officer or any non-commissionedofficer.

(3) An officer having power not less than a brigade or equivalentGcommander or any prescribed officer may dismiss or removefrom the service any person serving under his command otherthan an officer or a junior commissioned officer.

(4) Any such officer as is mentioned in sub-section (3) may reduceto a lower grade or rank or the ranks, any warrant officer or anyHnon-commissioned officer under his command.

(5) A warrant officer reduced to the ranks under this sectionshall not, however, be required to serve in the ranks as a sepoy.

(6) The commanding officer of an acting non-commissionedofficer may order him to revert to his permanent grade as a non-commissioned officer, or if he has no permanent grade abovethe ranks, to the ranks.

(7) The exercise of any power under this section shall be subjectto the said provisions contained in this Act and the rules andregulations made thereunder.”

“122. Period of limitation for trial.—

(1) Except as provided by sub-section

(2) no trial by court-martial of any person subject to this Act forany offence shall be commenced after the expiration of a periodof three years 1[and such period shall commence,—

(a) on the date of the offence; or

(b) where the commission of the offence was not known tothe person aggrieved by the offence or to the authoritycompetent to initiate action, the first day on which such offencecomes to the knowledge of such person or authority, whicheveris earlier; or

(c) where it is not known by whom the offence was committed,the first day on which the identity of the offender is known tothe person aggrieved by the offence or to the authoritycompetent to initiate action, whichever is earlier.] (2) Theprovisions of sub-section (1) shall not apply to a trial for anoffence of desertion or fraudulent enrolment or for any of theoffences mentioned in section 37.

(3) In the computation of the period of time mentioned in sub-section (1), any time spent by such person as a prisoner of war,or in enemy territory, or in evading arrest after the commissionof the offence, shall be excluded.

(4) No trial for an offence of desertion other than desertion onactive service or of fraudulent enrolment shall be commenced ifthe person in question, not being an officer, has subsequently to A

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the commission of the offence, served continuously in anexemplary manner for not less than three years with any portionof the regular Army.”

8. It will also be apt to take note of Rule 17 of the ArmyRules,1954 which reads as under:B

“17. Dismissal or removal by Chief of the Army Staff and byother officers.— Save in the case where a person is dismissedor removed from service on the ground of conduct which hasled to his conviction by a criminal court or a court-martial, noperson shall be dismissed or removed under sub-section (1) orCsub-section (3) of section 20; unless he has been informed of theparticulars of the cause of action against him and allowedreasonable time to state in writing any reasons he may have tourge against his dismissal or removal from the service:

Provided that if in the opinion of the officer competent toorder the dismissal or removal, it is not expedient or reasonablyDpracticable to comply with the provisions of this rule, he mayafter certifying to that effect, order the dismissal or removalwithout complying with the procedure set out in this rule. Allcases of dismissal or removal under this rule where theprescribed procedure has not been complied with shall beEreported to the Central Government.”

9. A conjoint reading of Section 20 of the Army Act,1950 alongwith Rule 17 of the Army Rules,1954 shows that power of dismissal orremoval under Section 20(3) can be exercised if the delinquent has beeninformed of the particulars of the cause of action and allowed reasonableFtime to state in writing any reasons he may have to urge against hisdismissal or removal from service. In the present case, such anopportunity was given to the appellant. Gravamen of the charge is thathe had got the enrolment on the basis of a fake Relationship Certificate.It is pertinent that in reply he admitted the fact that the RelationshipCertificate produced by him was fake. Thus, the procedure contained inGRule 17 of the Army Rules, 1954 was substantially followed.

10. It is also an admitted position that but for the said fakeRelationship Certificate, the appellant could not have got enrolment inthe Army. Thus, he got enrolment by playing a fraud. The fraud vitiatesthe entire action and in such a case the enrolment obtained by theHappellant, which was fraudulent.

11. It has been so held by this Court time and again. In Union ofIndia & Ors. v. M. Bhaskaran1, this Court gave a firm and sternmessage that if any employment is obtained by committing fraud, thesame cannot be countenanced by a court of law as the employmentsecured by fraud renders it voidable at the option of employer. Thisposition was reiterated in Vice-Chairman, Kendriya Vidyalaya2Sangathan & Anr. v. Girdharilal Yadav.

312. Likewise, in Ram Saran v. IG of Police, CRPF & Ors.,where the appellant was working on the post of Police Constable andhis services were terminated 27 years after joining the service, on groundsof using Fake Birth Certificate, such a termination was held to be validin law. Discussion that followed, in the process, is as under:

“6. In response, learned counsel for the respondents submittedthat in a disciplined force there was no scope for taking lenientview for a person who obtained employment on the basis offorged document. It was pointed out that on the basis of bindinginstructions contained in the Government of India, Departmentof Personnel and Training, OM No. 11012/7/91 Estt. (A) dated19-5-1993 (GO No. 29 of 1993) dismissal from service was theonly punishment imposable. In fact, the DIG, CRPF had referredto the said instructions while differing from the punishmentproposed. Rule 24 of the CCS (Pension) Rules reads as follows:

“24. Forfeiture of service on dismissal or removal.—Dismissalor removal of a government servant from a service or post entails,forfeiture of his past service.”

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8. The courts should not interfere with the administrator’s decisionunless it was illogical or suffers from procedural impropriety orwas shocking to the conscience of the court, in the sense that itwas in defiance of logic or moral standards. In view of what hasbeen stated in Associated Provincial Picture HousesLtd. v. Wednesbury Corpn. [(1948) 1 KB 223 : (1947) 2 All ER680 (CA)] commonly known as Wednesbury case [(1948) 1 KB223 : (1947) 2 All ER 680 (CA)] the court would not go into thecorrectness of the choice made by the administrator open to him 1 1995 Supp. (4) SCC 100

2 (2004) 6 SCC 325

3 (2006) 2 SCC 541

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and the court should not substitute its decision to that of theadministrator. The scope of judicial review is limited to thedeficiency in the decision-making process and not the decision.(See V. Ramana v. A.P. SRTC [(2005) 7 SCC 338 : 2006 SCC(L&S) 69] .)

9. In R. Vishwanatha Pillai v. State of Kerala [(2004) 2 SCC105 : 2004 SCC (L&S) 350] it was observed as follows: (SCCpp. 116-17, para 19)

“19. It was then contended by Shri Ranjit Kumar, learned SeniorCounsel for the appellant that since the appellant has renderedabout 27 years of service, the order of dismissal be substitutedby an order of compulsory retirement or removal from serviceto protect the pensionary benefits of the appellant. We do notfind any substance in this submission as well. The rights to salary,pension and other service benefits are entirely statutory in naturein public service. The appellant obtained the appointment againsta post meant for a reserved candidate by producing a false castecertificate and by playing a fraud. His appointment to the postwas void and non est in the eye of the law. The right to salary orpension after retirement flows from a valid and legal appointment.The consequential right of pension and monetary benefits canbe given only if the appointment was valid and legal. Such benefitscannot be given in a case where the appointment was found tohave been obtained fraudulently and rested on a false castecertificate. A person who entered the service by producing afalse caste certificate and obtained appointment for the postmeant for a Scheduled Caste, thus depriving a genuine ScheduledCaste candidate of appointment to that post, does not deserveany sympathy or indulgence of this Court. A person who seeksequity must come with clean hands. He, who comes to the courtwith false claims, cannot plead equity nor would the court bejustified to exercise equity jurisdiction in his favour. A personwho seeks equity must act in a fair and equitable manner. Equityjurisdiction cannot be exercised in the case of a person who gotthe appointment on the basis of a false caste certificate by playinga fraud. No sympathy and equitable consideration can come tohis rescue. We are of the view that equity or compassion cannotbe allowed to bend the arms of law in a case where an individualacquired a status by practising fraud.”

13. In Rajeshwar Baburao Bone v. State of Maharashtra &Anr.4, appointment was obtained by the appellant using fake castecertificate. Termination on that ground held to be valid. Para 12 readsas under:

“12. In the facts and circumstances of this case, we are of theopinion that the impugned order [Rajeshwar BaburaoBone v. State of Maharashtra, WP No. 5160 of 2012, order dated17-12-2013 (Bom)] passed by the High Court needs nointerference and this appeal deserves to be dismissed. However,we hold that because of inordinate delay in considering thecertificate of the appellant, the benefit of the certificate alreadyavailed by the appellant shall not be disturbed making it clearthat the appellant shall not be entitled to take any further benefitof reservation in future including the benefit of continuing inservice.”

14. In the aforesaid scenario, the argument of the appellant thatthere should have been an inquiry into the matter as per the provisions ofthe Army Act, 1950 is totally untenable. Even otherwise, when theappellant himself has admitted that Relationship Certificate produced byhim is fake, the procedure as laid down in Section 20 of the Army Act,1950 would be an empty formality.

15. In Union of India & Ors. v. Major General Madan LalYadav (Retd.)5, this Court opined that a person having done wrongcannot take advantage of his own wrong and plead bar of any law tofrustrate the lawful trial by a competent court and, in the process, theCourt invoked the Latin dictum “Nullus Commodum Capere Potest DeInjuria Sua Propria”.

16. We are, therefore, of the opinion that the authorities werewell within their right who exercised their power under Section 20(3) ofthe Army Act, 1950.

17. The appeal is dismissed accordingly.

Divya Pandey Appeal dismissed.

4 (2015) 14 SCC 4975 (1996) 4 SCC 127

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