EX SIG. MAN KANHAIYA KUMARversusUNION OF INDIA & ORS.

                        [2018] 1 S.C.R. 679                           679


              EX SIG. MAN KANHAIYA KUMAR                              A
                                v.
                   UNION OF INDIA & ORS.
                (Civil Appeal No(S). 1804 OF 2018)
                       JANUARY 09, 2018                               B
            [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 fake
                                                                      C
relationship certificate – Representation made by appellant,
rejected by respondents – Original Application (OA) challenging
the said order filed by appellant before Armed Forces Tribunal
(AFT) – AFT upheld the dismissal of appellant from service – Plea
of appellant that there should have been an inquiry into the matter
as per the provisions of 1950 Act – Held: Not tenable – Appellant     D
himself admitted in reply to the show cause notice that his father
was not an ex-service man and the Relationship Certificate produced
by him was fake – Power of dismissal or removal u/s.20(3) can be
exercised if the delinquent has been informed of the particulars of
the cause of action and allowed reasonable time to state in writing
                                                                      E
any reasons he may have to urge against his dismissal/removal from
service – In the present case, such an opportunity was given to
appellant – Appellant got enrolment by playing a fraud – Fraud
vitiates the entire action – A person having done wrong cannot take
advantage of his own wrong – Authorities were well within their
right to exercise power u/s.20(3) – Armed Forces – Army Rules,        F
1954 – r.17 – Service Law – Fraud – Maxims – “Nullus Commodum
Capere Potest De Injuria Sua Propria”.
         Fraud – Employment obtained by playing fraud –
Consequences – Discussed.
      Dismissing the appeal, the Court                                G
      HELD: 1.1 A conjoint reading of Section 20 of the Army
Act,1950 along with Rule 17 of the Army Rules,1954 shows that
power of dismissal or removal under Section 20(3) can be
exercised if the delinquent has been informed of the particulars
of the cause of action and allowed reasonable time to state in        H
                               679
680            SUPREME COURT REPORTS                          [2018] 1 S.C.R.


A     writing any reasons he may have to urge against his dismissal or
      removal from service. In the present case, such an opportunity
      was given to the appellant. Gravamen of the charge was that he
      had got the enrolment on the basis of a fake Relationship
      Certificate. It is pertinent that in reply he admitted the fact that
      the Relationship Certificate produced by him was fake. Thus,
B
      the procedure contained in Rule 17 of the Army Rules, 1954 was
      substantially followed. [Para 9] [684-E-G]
            1.2 It is also an admitted position that but for the said fake
      Relationship Certificate, the appellant could not have got
      enrolment in the Army. Thus, he got enrolment by playing a fraud.
C     The fraud vitiates the entire action and in such a case the
      enrolment obtained by the appellant, which was fraudulent. If any
      employment is obtained by committing fraud, the same cannot
      be countenanced by a court of law as the employment secured by
      fraud 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 that
      there should have been an inquiry into the matter as per the provisions of
E     the Army Act, 1950 is totally untenable. Even otherwise, when the
      appellant himself had admitted that Relationship Certificate produced by
      him 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 cannot
      take advantage of his own wrong and plead bar of any law to frustrate
      the lawful trial by a competent court. [Paras 14, 15] [687-D-F]
F
            Union of India & Ors. v. Major General Madan Lal
            Yadav (Retd.) [1996] 3 SCR 785 : (1996) 4 SCC 127;
            Ram Saran v. IG of Police, CRPF & Ors. [2006] 1 SCR
            1102 : (2006) 2 SCC 541; Rajeshwar Baburao Bone v.
            State of Maharashtra & Anr. [2015] 8 SCR 745 : (2015)
G           14 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            Para 11
  EX SIG. MAN KANHAIYA KUMAR v. UNION OF INDIA &                            681
                       ORS.

(2004) 6 SCC 325                       referred to          Para 11         A
[2006] 1 SCR 1102                      relied on            Para 12
[2015] 8 SCR 745                       relied on            Para 13
[1996] 3 SCR 785                       relied on            Para 15
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1804
                                                                            B
of 2018.
      From the Judgment and Order dated 28.02.2017 by the Armed
Forces Tribunal, Principal Bench, New Delhi in O.A. No. 1608 of 2016.
      Manjunath Meled, Anuj Saini, Govind, Anil Kumar, Advs. for the
Appellant.                                                                  C
      The Judgment of the Court was delivered by
      A. K. SIKRI, J. 1. The appellant has filed this appeal, along with
application for grant of leave to appeal, against the order dated dated
28.02.2017 passed by the Armed Forces Tribunal, Principal Bench at
New Delhi( for short, the ‘AFT’), whereby it has dismissed the original     D
application filed by the appellant. Leave to file the present appeal has
also been rejected by the AFT by a separate order.
      2. Leave to appeal is granted.
       3. The facts giving rise to this appeal are that the appellant was
                                                                            E
enrolled in the Army as Sepoy/Washerman on 19.01.2009. After about 6
years of service a show cause notice was issued on 08.10.2014 alleging
offence of fraudulent enrolment i.e. enrolment in the Army based on a
fake relationship certificate. On 13.03.2015, the respondent authorities
dismissed the appellant from service under Section 20(3) of the Army
Act. The appellant submitted representation before the respondent which     F
was not considered in time due to which he filed O.A. No. 773/2015
before the AFT and the same was disposed of with a direction to decide
the representation of the appellant. On 09.08.2016 the respondents
rejected the representation of the appellant. The appellant preferred the
Original Application under Section 14 of the Armed Forces Tribunal Act,
                                                                            G
2007 challenging the order dated 09.08.2016.
       4. It may be noted that without admitting the formal original
application, the AFT had directed the respondent to produce the relevant
documents. In compliance with the said direction, the Relationship
Certificate dated 09.08.2004 was produced vide reply dated 05.11.2014
                                                                            H
682            SUPREME COURT REPORTS                          [2018] 1 S.C.R.


A     submitted by the appellant to the show cause notice issued by the
      establishment. In the reply so submitted the appellant had specifically
      admitted the fact that his father was not an Ex-serviceman and, in fact,
      he had produced and relied on a fake Relationship Certificate. The
      records pertaining to Army No. 14224588 made available by the
      respondents clearly showed that number is in respect of Onkar Mal
B
      Gujar.
             5. Taking into consideration the aforesaid admitted facts, the AFT
      held that since the appellant got enrolment in the Army by making use of
      a fake Relationship Certificate, his dismissal from service on the ground
      of fraudulent enrolment was perfectly justified and no fault could be
C     found with the order of dismissal passed by the establishment.
             6. The only ground raised by the learned counsel for the appellant
      before us is that there could not have been an order of dismissal under
      Section 20(3) of the Army Act,1950 and this general power could not
      have been exercised when there is a specific provision to deal with such
D     cases laid down in Section 122(4) of the Army Act,1950. He submitted
      that as per law laid down by this Court in catena of judgments, the
      general provision cannot be invoked when there is a specific provision to
      deal with such situation.
            7. In order to appreciate the aforesaid contentions we reproduce
E     Section 20 as well as Section 122 of the Army Act,1950.
             “20. Dismissal, removal or reduction by the Chief of the Army
             Staff and by other officers.—
             (1) The Chief of the Army Staff may dismiss or remove from
F            the service any person subject to this Act other than an officer.
             (2) The Chief of the Army Staff may reduce to a lower grade or
             rank or the ranks, any warrant officer or any non-commissioned
             officer.
             (3) An officer having power not less than a brigade or equivalent
G            commander or any prescribed officer may dismiss or remove
             from the service any person serving under his command other
             than an officer or a junior commissioned officer.
             (4) Any such officer as is mentioned in sub-section (3) may reduce
             to a lower grade or rank or the ranks, any warrant officer or any
H            non-commissioned officer under his command.
EX SIG. MAN KANHAIYA KUMAR v. UNION OF INDIA &                           683
              ORS. [A. K. SIKRI, J.]

   (5) A warrant officer reduced to the ranks under this section         A
   shall not, however, be required to serve in the ranks as a sepoy.
   (6) The commanding officer of an acting non-commissioned
   officer may order him to revert to his permanent grade as a non-
   commissioned officer, or if he has no permanent grade above
   the ranks, to the ranks.                                              B
   (7) The exercise of any power under this section shall be subject
   to the said provisions contained in this Act and the rules and
   regulations made thereunder.”
   “122. Period of limitation for trial.—
                                                                         C
   (1) Except as provided by sub-section
   (2) no trial by court-martial of any person subject to this Act for
   any offence shall be commenced after the expiration of a period
   of three years 1[and such period shall commence,—
     (a) on the date of the offence; or                                  D
     (b) where the commission of the offence was not known to
     the person aggrieved by the offence or to the authority
     competent to initiate action, the first day on which such offence
     comes to the knowledge of such person or authority, whichever
     is earlier; or                                                      E
     (c) where it is not known by whom the offence was committed,
     the first day on which the identity of the offender is known to
     the person aggrieved by the offence or to the authority
     competent to initiate action, whichever is earlier.] (2) The
     provisions of sub-section (1) shall not apply to a trial for an     F
     offence of desertion or fraudulent enrolment or for any of the
     offences 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 commission      G
   of the offence, shall be excluded.
   (4) No trial for an offence of desertion other than desertion on
   active service or of fraudulent enrolment shall be commenced if
   the person in question, not being an officer, has subsequently to
                                                                         H
684            SUPREME COURT REPORTS                          [2018] 1 S.C.R.


A            the commission of the offence, served continuously in an
             exemplary manner for not less than three years with any portion
             of the regular Army.”
            8. It will also be apt to take note of Rule 17 of the Army
      Rules,1954 which reads as under:
B            “17. Dismissal or removal by Chief of the Army Staff and by
             other officers.— Save in the case where a person is dismissed
             or removed from service on the ground of conduct which has
             led to his conviction by a criminal court or a court-martial, no
             person shall be dismissed or removed under sub-section (1) or
C            sub-section (3) of section 20; unless he has been informed of the
             particulars of the cause of action against him and allowed
             reasonable time to state in writing any reasons he may have to
             urge against his dismissal or removal from the service:
                 Provided that if in the opinion of the officer competent to
             order the dismissal or removal, it is not expedient or reasonably
D
             practicable to comply with the provisions of this rule, he may
             after certifying to that effect, order the dismissal or removal
             without complying with the procedure set out in this rule. All
             cases of dismissal or removal under this rule where the
             prescribed procedure has not been complied with shall be
E            reported to the Central Government.”
             9. A conjoint reading of Section 20 of the Army Act,1950 along
      with Rule 17 of the Army Rules,1954 shows that power of dismissal or
      removal under Section 20(3) can be exercised if the delinquent has been
      informed of the particulars of the cause of action and allowed reasonable
F     time to state in writing any reasons he may have to urge against his
      dismissal or removal from service. In the present case, such an
      opportunity was given to the appellant. Gravamen of the charge is that
      he had got the enrolment on the basis of a fake Relationship Certificate.
      It is pertinent that in reply he admitted the fact that the Relationship
      Certificate produced by him was fake. Thus, the procedure contained in
G     Rule 17 of the Army Rules, 1954 was substantially followed.
            10. It is also an admitted position that but for the said fake
      Relationship Certificate, the appellant could not have got enrolment in
      the Army. Thus, he got enrolment by playing a fraud. The fraud vitiates
      the entire action and in such a case the enrolment obtained by the
H     appellant, which was fraudulent.
    EX SIG. MAN KANHAIYA KUMAR v. UNION OF INDIA &                             685
                  ORS. [A. K. SIKRI, J.]

      11. It has been so held by this Court time and again. In Union of        A
India & Ors. v. M. Bhaskaran 1, this Court gave a firm and stern
message that if any employment is obtained by committing fraud, the
same cannot be countenanced by a court of law as the employment
secured by fraud renders it voidable at the option of employer. This
position was reiterated in Vice-Chairman, Kendriya Vidyalaya
                                                                               B
Sangathan & Anr. v. Girdharilal Yadav2.
       12. Likewise, in Ram Saran v. IG of Police, CRPF & Ors.3,
where the appellant was working on the post of Police Constable and
his services were terminated 27 years after joining the service, on grounds
of using Fake Birth Certificate, such a termination was held to be valid
in law. Discussion that followed, in the process, is as under:                 C

        “6. In response, learned counsel for the respondents submitted
        that in a disciplined force there was no scope for taking lenient
        view for a person who obtained employment on the basis of
        forged document. It was pointed out that on the basis of binding
        instructions contained in the Government of India, Department          D
        of Personnel and Training, OM No. 11012/7/91 Estt. (A) dated
        19-5-1993 (GO No. 29 of 1993) dismissal from service was the
        only punishment imposable. In fact, the DIG, CRPF had referred
        to the said instructions while differing from the punishment
        proposed. Rule 24 of the CCS (Pension) Rules reads as follows:         E
        “24. Forfeiture of service on dismissal or removal.—Dismissal
        or removal of a government servant from a service or post entails,
        forfeiture of his past service.”
                  xxx              xxx                        xxx
        8. The courts should not interfere with the administrator’s decision   F
        unless it was illogical or suffers from procedural impropriety or
        was shocking to the conscience of the court, in the sense that it
        was in defiance of logic or moral standards. In view of what has
        been stated in Associated Provincial Picture Houses
        Ltd. v. Wednesbury Corpn. [(1948) 1 KB 223 : (1947) 2 All ER           G
        680 (CA)] commonly known as Wednesbury case [(1948) 1 KB
        223 : (1947) 2 All ER 680 (CA)] the court would not go into the
        correctness 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                                                             H
686    SUPREME COURT REPORTS                            [2018] 1 S.C.R.


A     and the court should not substitute its decision to that of the
      administrator. The scope of judicial review is limited to the
      deficiency 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] .)
B     9. In R. Vishwanatha Pillai v. State of Kerala [(2004) 2 SCC
      105 : 2004 SCC (L&S) 350] it was observed as follows: (SCC
      pp. 116-17, para 19)
      “19. It was then contended by Shri Ranjit Kumar, learned Senior
      Counsel for the appellant that since the appellant has rendered
C     about 27 years of service, the order of dismissal be substituted
      by an order of compulsory retirement or removal from service
      to protect the pensionary benefits of the appellant. We do not
      find any substance in this submission as well. The rights to salary,
      pension and other service benefits are entirely statutory in nature
      in public service. The appellant obtained the appointment against
D     a post meant for a reserved candidate by producing a false caste
      certificate and by playing a fraud. His appointment to the post
      was void and non est in the eye of the law. The right to salary or
      pension after retirement flows from a valid and legal appointment.
      The consequential right of pension and monetary benefits can
E     be given only if the appointment was valid and legal. Such benefits
      cannot be given in a case where the appointment was found to
      have been obtained fraudulently and rested on a false caste
      certificate. A person who entered the service by producing a
      false caste certificate and obtained appointment for the post
      meant for a Scheduled Caste, thus depriving a genuine Scheduled
F     Caste candidate of appointment to that post, does not deserve
      any sympathy or indulgence of this Court. A person who seeks
      equity must come with clean hands. He, who comes to the court
      with false claims, cannot plead equity nor would the court be
      justified to exercise equity jurisdiction in his favour. A person
G     who seeks equity must act in a fair and equitable manner. Equity
      jurisdiction cannot be exercised in the case of a person who got
      the appointment on the basis of a false caste certificate by playing
      a fraud. No sympathy and equitable consideration can come to
      his rescue. We are of the view that equity or compassion cannot
      be allowed to bend the arms of law in a case where an individual
H     acquired a status by practising fraud.”
     EX SIG. MAN KANHAIYA KUMAR v. UNION OF INDIA &                              687
                   ORS. [A. K. SIKRI, J.]

       13.In Rajeshwar Baburao Bone v. State of Maharashtra &                    A
Anr.4, appointment was obtained by the appellant using fake caste
certificate. Termination on that ground held to be valid. Para 12 reads
as under:
          “12. In the facts and circumstances of this case, we are of the
          opinion that the impugned order [Rajeshwar Baburao                     B
          Bone v. State of Maharashtra, WP No. 5160 of 2012, order dated
          17-12-2013 (Bom)] passed by the High Court needs no
          interference and this appeal deserves to be dismissed. However,
          we hold that because of inordinate delay in considering the
          certificate of the appellant, the benefit of the certificate already
          availed by the appellant shall not be disturbed making it clear        C
          that the appellant shall not be entitled to take any further benefit
          of reservation in future including the benefit of continuing in
          service.”
       14. In the aforesaid scenario, the argument of the appellant that
there should have been an inquiry into the matter as per the provisions of       D
the Army Act, 1950 is totally untenable. Even otherwise, when the
appellant himself has admitted that Relationship Certificate produced by
him 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 Lal                    E
Yadav (Retd.)5, this Court opined that a person having done wrong
cannot take advantage of his own wrong and plead bar of any law to
frustrate the lawful trial by a competent court and, in the process, the
Court invoked the Latin dictum “Nullus Commodum Capere Potest De
Injuria Sua Propria”.
                                                                                 F
      16. We are, therefore, of the opinion that the authorities were
well within their right who exercised their power under Section 20(3) of
the Army Act, 1950.
         17. The appeal is dismissed accordingly.
                                                                                 G

Divya Pandey                                                 Appeal dismissed.


4
    (2015) 14 SCC 497
5
    (1996) 4 SCC 127
                                                                                 H