Kuldeep Kumar Sarmah vs Union Of India & Ors

This petition filed under Article 226 of the Constitution of India challenges the orders dated 10.11.2001, 05.04.2002 and 21.01.2003 passed by the respondent authorities with a further prayer to direct the respondent authorities to reinstate the petitioner in service w.e.f. 10.11.2001.

Briefly, the facts may be notice. Petitioner was enrolled with Assam Rifles on 23.02.2001 at Solan (Himachal Pradesh) and was sent for training to SKV Training Battalion, Imphal Coy.No.2 Platoon. During the course of verification of character and antecedents based on the information given by the Superintendent of Police, Hamirpur District, it was established that there was a case pending against the petitioner in relation to FIR No.29 of 2000 dated 17.02.2000 under Section 171-F IPC registered with Police Station Solan, District Solan, Himachal Pradesh. The petitioner while filling up the enrolment form had given false information in relation to question No.12 in the enrolment form. Thus, the petitioner was dismissed during the course of his training from service in terms of the order dated 10.11.2001 for furnishing false information during the time of enrolment. Thereafter, the petitioner made a representation which was also rejected vide letter dated 05.04.2002.

After hearing learned counsel for the parties, I find that the writ petition is liable to be rejected for more than one reason.

It was pointed out by learned counsel for the respondents that the petitioner had prayed for identical relief in CWP No.876 of 2002 before the High Court of Himachal Pradesh at Shimla and the said writ petition was dismissed on 25.06.2007. Additionally here the petitioner has laid challenge to the order dated 21.01.2003 after more than 12 years of the passing of the said order. According to the respondents, it was appropriate for the petitioner to have amended his writ petition and challenged the order dated 21.01.2003 also in the said writ petition. It was urged that in view of dismissal of the earlier writ petition, the present writ petition was not maintainable. On the other hand, learned counsel for the petitioner had now sought to raise an argument that the High Court of Himachal Pradesh had no territorial jurisdiction to adjudicate the matter as was argued by the respondents therein. It was claimed that, therefore, the said judgment would not have any binding effect on the parties. However, learned counsel for the respondents drew my attention to similar plea of territorial jurisdiction raised before the Himachal Pradesh High Court which was specifically not accepted. In the judgment dismissing the writ petition filed by the petitioner, it has been observed that the petitioner being a resident of the State of Himachal Pradesh from where he was selected and sent for training, therefore, the High Court of Himachal Pradesh had the jurisdiction to adjudicate the matter. Thus, the petitioner is not entitled to any relief as claimed in the present writ petition.

Secondly, the petitioner has approached this Court belatedly. The orders under challenge were passed on 10.11.2001, 05.04.2002 and 21.01.2003. The writ petition with similar plea filed before the Himachal Pradesh High Court was dismissed on 25.06.2007. The present petition has been filed in 2015. No plausible or satisfactory explanation has been tendered for approaching the High Court after such an inordinate delay.

The writ petition is thus, hit by principles of delay and laches as well.

Still further, lastly, the Himachal Pradesh High Court vide order dated 25.06.2007 while rejecting the writ petition had on merits of the controversy opined as under:-

"Perusal of the record shows that while filling the Assam Rifles Recruitment Form for enrolment whereby the petitioner was required to furnish information as to whether he has been arrested, prosecuted, convicted, imprisoned under any law in force in India, petitioner has answered as 'No'. The said form has been certified to be solemnly affirmed. Petitioner has also given an undertaking to the effect that if he is found unfit to become an efficient soldier during the course of his training, he is liable to be discharged from service and till his attestation as Rifleman he shall not enjoy any privileges as a Government servant.

The object of requiring information in column 12 of the attestation form and certification thereof by a candidate is to ascertain and verify the character and antecedents of the candidate as on the date of filling and solemnly affirming of form to judge the suitability or continuance in service.

The fact that there was a criminal case pending against petitioner in the Court of ACJM, Kasuali at Solan is not disputed and is also clearly borne out from the record. Petitioner was required to furnish such information which he deliberately concealed and fraudulently got himself enrolled in Assam Rifles as a trainee. He had furnished this information, he not could have been recruited and sent for training. This fact was discovered only on verification of his character and antecedents."

The plea of violation of principles of natural justice was negatived with the following observations:-

"The fact that no notice was issued to the petitioner prior to dismissal and no adequate opportunity of hearing was afforded to the petitioner is not in dispute. The question which arises for consideration now is as to whether a person who fraudulently got himself enrolled as a trainee by concealing relevant material information is entitled for a hearing in compliance of principles of natural justice or not. Undisputedly had the petitioner furnished the information correctly he could not be enrolled as a trainee and sent for training. His selection itself was tainted and his dismissal as a result of his concealment and suppression according to me would not warrant an opportunity of hearing. In my view no serious prejudice has been caused to the petitioner if no opportunity of hearing was afforded to the petitioner before the order of dismissal was passed. In my considered view it would have been a futile exercise, in view of the admitted position that not only on the date of enrolment but even on the date of his dismissal, a criminal case was pending trial and the petitioner was being prosecuted in a Court of law. Subsequent withdrawal of the same and that too at the request of the Public Prosecutor in any event would have no bearing on his action of concealment or his continuance in service.

In State Bank of Patiala v. S.K. Sharma, reported in (1996) 3 SCC 364, the Apex Court has held that while applying the Rule of audi alteram partem, the Court must always bear in mind the ultimate and overriding objective underlining the Rule to ensure a fair hearing and that there is no failure of justice. It is this objective which should guide the Courts in applying the Rule to varying situations that arise before them. Balance has to be struck between public interest and private interest.

Even though audi alteram partem is one of the basic pillars of natural justice and no one should be condemned unheard, however, the principle cannot be put into a straight jacket formula and may not be applied in a given case unless a prejudice is shown to have caused to the person. The principles of natural justice are not necessarily required to be followed where it would result into futile exercise. [Ashok Kumar Sonkar v. Union of India and others, reported in (2007) 4 SCC 54, Ramakrishna Kumat v. State of Karnataka, (2003) 3 SCC 374]."

The contention of the petitioner that the prosecution was ultimately withdrawn and, therefore, dismissal was not appropriate also did not find favour in CWP No.876 of 2002 decided on 25.06.2007 by the Himachal Pradesh High Court. The relevant portion of the order reads thus:-

"The withdrawal of the prosecution, in my view, has no relevance with the question which the petitioner was required to answer. Candidate's conduct and antecedents are important and relevant factors and consideration for his selection and recruitment in the Assam Rifles, which is engaged not only protecting the Borders but also maintaining law and order in the country. Suppression of material information and making false statement has bearing on the character and antecedents of the candidate in relation to his continuance in service. The candidate having suppressed material information and/or given false information cannot claim a right to appointment and continuance in service.

In somewhat similar case where the criminal case pending against the candidate was subsequently withdrawn, the Apex Court negatived the contention of the candidate that he be allowed to continue in service. (Kendirya Vidyalaya Sangathan and others v. Ram Ratan Yadav, reported in (2003) 3 SCC 437).

That apart the show cause notice, in view of the admitted facts as set out hereinabove, is only a useless formality. The result is, in any way, going to remain the same."

I do not find any reason to differ with the findings and conclusion arrived at by the Himachal Pradesh High Court in CWP No.876 of 2002 dismissed on 25.06.2007 on the merits of the controversy.

In view of the above, finding no merit in the writ petition, consequently the same is hereby dismissed.