PETITIONER: SANJAY KUMAR BAJPAI Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT: 12/02/1997 BENCH: S.C. AGRAWAL, K.S. PARIPOORNAN ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
This appeal is directed against the judgment of the
Allahabad High Court (Lucknow Bench) dated September 13,
1993 whereby Writ Petition No 10117 of 1989 filed by the
appellant has been dismissed. In the said Writ Petition the
appellant had assailed the validity of the order dated
September 12, 1989 discharging him from service as M.E.R
(Technical)/Nursing Assistant in the Army Medical Corps.
The appellant appeared in M.E.R. (Technical)
Examination conducted by Headquarters Recruiting Zone,
Lucknow on January 24, 1988. On the basis of the result of
the said examination he was selected for recruitment as
M.E.R. (Tech.)/Nursing Assistant in the Army Medical
College. He was enrolled as M.E.R. (Technical)/Nursing
Assistant on February 29, 1988. At the time of enrolment a
form is required to be filled on the basis of the answers to
question put to the person seeking enrolment. For the
purpose of enrolment the enrolment form as prescribed by the
relevant rules was filled. It si not disputed that at the
time of his enrolment the appellant was being prosecuted
before the Special Judicial Magistrate (pollution Control),
U.P., Lucknow for offences under Sections 147, 452, 324 and
323 I.P.C. The case of the respondents is that at the time
of enrolment the appellant was asked the following
question:-
“Q.No. (8): Have you ever been
imprisoned by the civil power or
are you under trial for any offence
or has any complaint or report been
made against you to the Magistrate
or Police for any offence ? If so,
give details.”
In the enrolment form it is recorded that the said
question was answered by the appellant by the word “No”. The
enrolment form of the appellant was sent for verification to
the District Magistrate, Lucknow, After verification the
District Magistrate, Lucknow, by his letter dated December
21, 1988, informed the A.M.C. Centre and School about the
pendency of the criminal case against the appellant. On
receipt of the said communication from the District
Magistrate, Lucknow, a show-cause notice dated May 20, 1989
was issued to the appellant whereby he was informed that it
had come to the notice that the appellant was involved in a
civil case and he had deliberately given false answers to
the question put to him by the enrolling officer regarding
involvement in any civil case at the time of enrolment. the
appellant was required to show cause why he should not be
discharged from service on account of the same. The
appellant in his communication dated May 23, 1989 admitted
about the pendency of the criminal case against him but
asserted that he had been falsely implicated in the same.
After considering the said communication of the appellant
the impugned order dated September 12, 1989 was passed
whereby he was discharged from service under Army Rule
13(3) (IV) of the table appended below Rule 13 of the Army
Rules which contains three clauses. Clause (IV) of the said
table enables discharge of a person enrolled under the Act
but not attested who is considered as unlikely to become an
efficient soldier and whose services are not longer
required.
The case of the appellant is that the enrolment form
was not filled on the basis of the answers given by him to
questions put to him at the time of enrolment and that the
signatures of the appellant were obtained on the blank
anrolment form and the same was filled later and, therefore,
the appellant cannot be held responsible for any statement
contained in the said enrolment form and the action that has
been taken against him on the basis of the statement
contained in the enrolment form cannot be held to be valid.
It has also been asserted by the appellant that the show
cause notice date May 20, 1989 was never served on him and
only an oral query was made by the Commanding Officer and
that in response to the said query he had sent the
communication dated May 23,1989 giving his explanation about
the criminal case that was pending against him. The
submission of the appellant is that he never made a false
statement that not case was pending against him at the time
of enrolment.
Shri P.P. Malhotra, the learned senior counsel
appearing for the respondents, has placed before us the
original inrolment from regarding the enrolment of the
appellant on February 29, 1988. The said enrolment form is
required to be filled under Section 13 of Army Act which
lays down :-
“Upon the appearance before the
prescribed enrolling officer of any
person desirous of being enrolled,
the enrolling officer shall read
and explain to him, or cause to be
read and explained to him in his
presence, the conditions of the
service for which he is to be
enrolled; and shall put to him the
questions set forth in the
prescribed form of enrolment, and
shall, after having cautioned him
that if he makes a false answer to
any such question he will be liable
to punishment under this Act,
record or cause to be recorded his
answer to each such question.”
The enrolment form of the appellant contains question
No. 8 referred to above and the answer “No” against it. At
the end there is the following declaration bearing the
signatures of the appellant:-
“I Sanjay Kumar Bajpai do solemnly
declare that the above answers made
by me to the above questions are
true and that I and willing to
fulfil the engagements made.”
Having regard to the aforesaid provision contained in
Section 13 of the Army Act and the Answers that have been
recorded in the Enrolment form as well as the declaration at
the end of the form under Signatures of the appellant that
the answers made by him to the questions are true, we are
unable to uphold the contention of the appellant that the
answers recorded against the questions in the enrolment form
were not based on the answers given b him at the time when
the said form was filled and that his signatures were
obtained on a blank form which was filled by the authorities
without the appellant being required to give answers to the
questions. Having appended his signatures at the end of the
form it is not open to the appellant to dis-own the same.
The filling of enrolment form was an official act required
to be performed under Section 13 of the Army Act and a
presumption about regularity of such official act and be
drawn. There is not reason to assume that the enrolment form
was not filled in the manner as required. We must,
therefore, proceed on the basis that the answers that are
recorded against the question contained in the said
enrolment form are based on the statement made by the
appellant at the time of enrolment. Since as per the
enrolment form question No. 8 was answered in the negative,
must be held that at the time of enrolment the appellant did
not disclose that the criminal case was pending against him
and made a false statement that no case was pending against
him at the time.
Shri Vikas Singh, the learned counsel for the
appellant, has laid emphasis on the averments contained in
para 8 of the counter affidavit of Major Kishan Lal filed on
Behalf of the respondents in the High Court as well as in
Para F(i) of the counter affidavit of Captain Krishna
Chander filed in this Court wherein it is stated that the
appellant was asked by the enrolling officer the following
question “is any case pending against you in any court of
Law” at the time of filing of enrolment form and that reply
was “No”. The submission is that the question as set out in
the aforesaid counter affidavits is different from the
question No. 8 as contained in the enrolment form produced
in this Court. It is no doubt true that in the aforesaid
paragraphs of the counter affidavits filed on behalf of the
respondents in the High Court and in this Court the question
that was put to the appellant at the time of enrolment is
not in the same terms as question No. 8 of the enrolment
form. But we do not find any major difference in the
question as mentioned in the said paragraphs of the counter
affidavits and question No 8 in the enrolment form. The
substance of the both is the same, namely, whether any case
was pending against him in court. All that can be said is
that the deponents of the counter affidavits filed in the
High Court and in this Court did not bestow due care and
attention while preparing the counter affidavits. It was
expected that while making the affidavit the deponents
should have carefully examined the record of the case
including the enrolment form and , if they had dome so, this
discrepancy would not have occurred. The additional
affidavit of the Lt. Col. A.K. Mitra correctly mentions the
question as contained in the enrolment form. The said error
in the counter affidavits filled earlier cannot, therefore,
be made a ground for holding that the impugned order of
discharge of the appellant is vitiated.
It was next submitted by Shri Vikas Singh that the show
cause Notice dated May 20,1989 was never served on the
appellant and action has been taken against him without
affording a reasonable opportunity to him. In this regard
the learned counsel has urged that no document has been
produced to show that the said notice was received by the
appellant. This fact has been disputed by the respondents
and it has been submitted that the communication dated May
23, 1989 was sent by the appellant in reply to the said
notice. The case of the respondents. Is that the record
relating to the service of the show cause notice is not
longer available as it has been weeded out. we do not any
ground to doubt the correctness of the statement made on
behalf of the respondents that the notice dated May 20, 1989
was served on the appellant. Moreover, the question whether
the notice dated May 20,1989 was received by the appellant
or not is not of much consequence because the appellant
submitted his explanation regarding the pendency of the case
against him in his reply dated May 23, 1989 and the said
explanation was considered by the authorities before passing
the order of discharge dated September 12, 1989.
Shri Vikas has invited out attention to the statement
made in the counter affidavit filed by the respondents in
this Court wherein it is stated that the appellant had been
convicted in the criminal case. It is submitted that the
said statement is a false statement because the appellant
has actually been acquitted and the said false statement has
been deliberately made to prejudice the case of the
appellant. We do not find any met in this contention.
No ground is thus made out for interfering with the
impugned judgment of the High Court. The appeal, therefore,
fails and it is accordingly dismissed. No Order as to costs.