LexEX SIG. MAN KANHAIYA KUMAR versus UNION OF INDIA & ORS.
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A B C D E F G H 679 EX SIG. MAN KANHAIYA KUMAR v. UNION OF INDIA & ORS. (Civil Appeal No(S). 1804 OF 2018) 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 fake 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 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 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, 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 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 679 [2018] 1 S.C.R. 679 A B C D E F G H 680 SUPREME COURT REPORTS [2018] 1 S.C.R. 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, 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. 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] [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 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] 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) 14 SCC 497 – relied on. Vice-Chairman, Kendriya Vidyalaya Sangathan & Anr. v. Girdharilal Yadav (2004) 6 SCC 325 – referred to. Case Law Reference [1995] 4 Suppl. SCR 526 relied on Para 11 A B C D E F G H 681 (2004) 6 SCC 325 referred to Para 11 [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 of 2018. From the Judgment and Order dated 28.02.2017 by the Armed Forces Tribunal, Principal Bench, New Del
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