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Judgment
K. Vinod Chandran, J.—The appellant is aggrieved by his dismissal from the service of the Judicial Department in the State of Kerala for reason of not having disclosed that he was a deserter from the Indian Army, being dismissed from service as a consequence of "deserting the service" categorizing him as unfit for civil employment. The minimum facts required with respect to the service of the appellant is that he applied for the post of Peon notified by the Public Service Commission, hereinafter referred to as "the Commission", in 1987 and having qualified in the test conducted on 16.4.1988 and the consequential interview on 12.6.1989, he was posted as Peon in the Irrigation Department in the year 1992. In 1993, he obtained inter-departmental transfer to the Judicial Department and was promoted to the post of Lower Division Clerk, when the said proceedings were initiated against him on account of an anonymous complaint received by the Registrar General of the High Court of Kerala, who had administrative control over the officers and ministerial staff of the subordinate judiciary. The appellant, aggrieved by the dismissal from service and the unsuccessful appeal, was before the learned single Judge, who dismissed the writ petition by the impugned judgment.
Before the learned single Judge, the appellant had raised various contentions with respect to the procedural irregularities in the enquiry conducted as also the sustainability of the charges and the findings of the Enquiry Officer as confirmed by the first appellate authority. The various contentions raised by the appellant regarding the procedural irregularity were considered elaborately by the learned single Judge and rejected. The contention with respect to the disciplinary authority having conducted the preliminary enquiry and the memo of charges not being issued to the delinquent before the enquiry as also non-supply of the enquiry report before the disciplinary authority accepting the findings in the report were all considered and rejected by the learned single Judge. Noticing the facts available in the records; with respect to the above allegations and finding them to be contrary to what was pleaded, the bias alleged against the Enquiry Officer and the appellate authority being a person who participated in the disciplinary proceedings were also negated.
Before us, the learned senior counsel appearing for the appellant canvassed and asserted the procedural irregularities which were found against by the learned single Judge. The learned senior counsel strenuously urges the ground that the charge itself was that the appellant had not disclosed the factum of dismissal from the Armed Services in his application; which according to the appellant could not have been disclosed, since he himself was aware of it only in the year 1989 and the application to the ''Commission'' was made in the year 1987. One other contention urged in the same lines is that the application he is said to have submitted before the Commission was not forthcoming in the enquiry and hence no such charge could be laid and successfully proved against him and the order of the disciplinary authority based on the enquiry report and confirmed in appeal would have to be set aside on that short ground. This, according to the learned senior counsel, cuts at the root of the matter and on that ground alone it would be eminently possible for this Court to hold that the entire proceedings are vitiated. Needless to say, this was urged before the learned single Judge also and was rejected in the impugned judgment.
As was noticed by the learned single Judge, there are certain undisputed facts. The appellant had been a Havildar in the Army and after having served for two years and 31 days, he proceeded on leave and failed to rejoin duty. His date of enrolment and the period of service is revealed from his Certificate of Service, which is enclosed along with Exhibit P11 proceedings. It reveals that he was enrolled on 24.9.1982. Hence, some time in the year 1984 he would have proceeded on leave and then subsequently failed to rejoin duty. In his deposition, again a part of Exhibit P11 proceedings, he has stated that after about 11/2 years of his desertion, he was arrested by the local police and transported to the Artillery Unit at Pathan code, where Court-Martial proceedings were initiated against him and he was convicted and sentenced to imprisonment for three months. Having suffered the imprisonment in Gurdaspur Central Jail, he was dismissed from service and it was later on, in 1987, he applied to the post of Peon as per the notification of the Commission. The entire arguments are anchored on the fact that the application made by him is not forthcoming and the charge itself could not have been laid as is framed in Exhibit P1. The allegations as per Exhibit P1 were that the appellant was a deserter from Defence Service; that he was subjected to Court-Martial and was sentenced to imprisonment for three months; and that he joined Government service as per the notification issued by the Commission without disclosing those facts.
It is true that the application by which the appellant had applied against the notification of the Commission has not been produced. Nor can there be any laches or deliberate suppression be alleged against any of the authorities for reason of the enquiry having commenced almost 20 years after the application was made by the appellant. Looking at the vast recruitments made by the Commission as also the passage of time, apparently no such application could have been ferreted out. However, the learned single Judge had obtained a proforma of the application form from the Standing counsel for the Commission and had extracted the specific portion which would lead to an inference that the appellant having been dismissed from the services of the Armed Forces, was obliged to make such disclosure. That the appellant refused to make such disclosure does not require any evidence, because if such disclosure was made, definitely the Commission would not have called him for the test or interview; he being disqualified from seeking any public employment. It is also the case of the appellant that he was not aware of the dismissal from the Army, when he made the application. Hence, it is admitted that the dismissal was not referred to in the application. Hence, the contention that if the application was forthcoming, that alone would establish the charge of non-disclosure, being the only misdemeanour alleged against him, has no legs to stand on.
The alternative contention raised on behalf of the appellant is that he could not have known about the dismissal and his disqualification from applying for civil employment, since he had become aware of such dismissal and disqualification only on 7.3.1989. Much has been made of the said date, viz., 7.3.1989., to contend that his application was in the year 1987 and written test on 16.4.1988, when obviously such disclosure could not have been made. Before going into that contention, we would take the risk of deviating to consider a point strenuously urged by the learned senior counsel.
It is the assertive contention of the learned senior counsel that undisputedly the Certificate of Dismissal, which disclosed the appellant''s disqualification for seeking civil employment, was produced before the interview board. We are unable to understand how such a claim can be said to be undisputed. The learned senior counsel would rely on the Enquiry Officer''s report, which noticed the said contention. The specific portion of the Enquiry Officer''s report pointed out by the learned senior counsel is extracted hereunder:
Yet another ground is also advanced by the delinquent officer stating that he has disclosed the above said facts to the interview board and handed over discharge certificate to the Interview Board at the time of his appointment. I could not find any merit in the said contention. Once there is a disqualification it has to be disclosed in the application itself and he has to disclose the same to the interview board.
We should quickly notice that the Enquiry Officer has specifically found that there is no merit in the said contention. However, the learned senior counsel relies on the next sentence regarding the non-disclosure in the application and harp on the fact that there could not have been any disclosure, since the appellant himself was informed of it only on 17.3.1989. Be that as it may, we looked through the records to find whether there has been any such specific contention taken by the appellant. Exhibit P2 is the 1st explanation submitted by the appellant in answer to Exhibit P1. That reply, at the first instance, does not disclose any such contention. We also went through the deposition of the appellant. Again, he does not make any such statement. Hence, the assertion that he had revealed his dismissal and his disqualification to the interview board runs contrary to the materials on record.
Moreover, we cannot for a moment assume without any substantial evidence, that a public authority would act irregularly and in fact the presumption is to the contrary. No interview board of the Commission could be assumed to have seen the discharge and disqualification of the appellant from taking up civil employment and permit him to be selected. The presumption u/s 114, read with illustration (e), of the Evidence Act being to the contrary, Court has to presume that the acts done by the public authority is in accordance with rules and the law on the subject.
Now we come to the seemingly attractive contention of the appellant that he was not aware of the dismissal from Army and disqualification from civil employment when he made an application in the year 1987. We would notice the chronology of events even at the risk of repetition. The appellant joined the Army in 1982 and proceeded on leave after 2 years and 31 days and failed to join duty thereafter. This is evident from the Certificate of Service, as was noticed. The appellant''s own deposition shows that after 11/2 years of desertion, he was apprehended by the local police and transported to Pathan code, where he underwent Court-Martial and consequent imprisonment. All these definitely happened before 1987. He also deposes that the Court-Martial was at the Artillery Unit at Pathan code and he was imprisoned for three months in Gurdaspur Central Jail. Then it was his deposition that he was dismissed from service for reason of having deserted the Army. It was after the said punishment that the appellant returned home and worked in a private company and thereafter joined the Irrigation Department. Hence, obviously the application was made after the imprisonment and dismissal from service.
Now we come to the date 7.3.1989, before which the appellant asserts that he was not aware of the dismissal and the consequent disqualification from civil employment. That date again is one reflected in the Certificate of Service, which was granted on 7.3.1989. This Certificate of Service, as was noticed earlier, is enclosed along with the proceedings which are produced as Exhibit P11 in the writ petition. The Certificate of Service is not the order of dismissal. As we noticed earlier, even according to the deposition of the appellant, immediately after the Court-Martial, he was imprisoned for three months and then dismissed from service. He cannot then turn around and say that he became aware of the dismissal and disqualification only on 7.3.1989, His discharge, as per the Certificate of Service, is also shown as 1.8.1988. The appellant conveniently does not state before the Enquiry Officer or before this Court as to when he was imprisoned. He does not disclose the period when he underwent Court-Martial and spent time in Gurdaspur Central Jail. It is trite that this Court will not and does not extend its extra-ordinary jurisdiction under Article 226 to help and aid those persons who come to this Court with unclean hands and who are shown to be guilty of suppression of material facts.
That the appellant was dismissed from service and is categorized as "unfit for civil employment" cannot at all be disputed. The said order of dismissal and consequent disqualification has become final and the appellant cannot seek continuance in civil employment by reason merely of picking holes in an enquiry proceeding initiated for non-disclosure of such facts. The challenge based only on the validity of the charge, procedural irregularity, etc. are also found to be not sustainable. The further plea that the punishment is disproportionate cannot be countenanced, since the appellant was categorized as ''unfit'' for public employment by reason of his dismissal from Armed Services and had not disclosed the said fact which resulted in his continuing in public employment for 20 years.
We have to further notice, as has been pointed out in the counter-affidavit, that after obtaining employment, every employee has to be subjected to police verification. The police verification is primarily self declaratory in nature as to the personal details. It is on such self declaration before an authorized officer from the police that the verification is conducted and report filed with the appropriate authority. It looms large that no such declaration has also been disclosed on the police verification, since if so disclosed, necessarily proceedings would have been taken at that stage itself. Appellant having successfully evaded disclosure and having continued in employment for 20 years suppressing the fact of dismissal from Armed Services and consequent disqualification from civil employment, cannot turn around and be permitted to claim equity by reason of the long 20 years continued in employment or claim immunity by reason only of the original application submitted by the appellant having not been unearthed. We are of the definite opinion that the judgment of the learned single Judge does not suffer from any infirmity and the same is liable to be upheld on all counts. The Writ Appeal is devoid of any merit and hence, we dismiss the same, however, with no order as to costs.