Ramesh Prasad v Union of India

                                    Ramesh Prasad v Union of India

                                         W.P. (S) No. 4841 of 2008

                                              The Parties are

                                       Ramesh Prasad -Appellant

                                                        And 

                                The Union of India or State -Respondent

                                      In the High court of Jharkhand

This case is a written petition filed before the High court of Jharkhand by a Sepoy named Ramesh Prasad. The relevant provision of law which the case focusses on is the Section 12 of the Probation of Offenders Act. The respondents of this case have filed the writ petition so as to transfer the case to the Armed Forces Tribunal at Kolkata. The case revolves around the termination of the job of the Sepoy such that he is subject to have committed a crime and is not eligible for the post of Army. This case study focusses on the facts of the case, issues, judgements, relevant legal provisions as well as the related cases.

Key words

  • Special Appeal
  • Appellant
  • Misrepresentation
  • Dismissal

Introduction

This is a case which took place before the Court of Jharkhand in the year 2008. The plaintiff-appellant of this case is Sepoy Ramesh Prasad whereas the respondent is the Union of India. The case highlights that the Sepoy who had lost his job as a result of him getting employed by a mischievous act. Further it can be seen that the appellant goes for several appeals regarding his removal or termination from the job. The case focusses on the Section 12 of the Probation of Offenders Act as well as the power of the High Court to hear the appeals from the tribunals.

 

Background of the case

The case takes place before the High Court of Jharkhand. This Special Appeal has been filed against the Judgment and order of a learned Judge Narendra Nath Tiwari of this Court dated, 13.02.2004 discharging the writ petition which was filed by the present appellant, Ramesh Prasad on the ground stating that he obtained the employment by misrepresentation. In this interlocutory application, the Respondents have pleaded for transferring the writ petition [ W.P.(S) No. 4841 of 2008] to the Armed forces Tribunal at Kolkata.

 It has been mentioned that the Tribunal has been specifically constituted for the purpose of hearing the matters relating to army personnel. The Tribunal here functions at Kolkata. Section 14 of Armed Forces Tribunal Act, 2007, states that the Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority, exercisable immediately before that day by all courts in relation to all the service matters except in the case of Supreme Court and High Court which exercise jurisdiction under Article 226 and 227 of the Constitution. The writ petition precisely comes within the scope of jurisdiction of the Armed Forces Tribunal Act, 2007 and thus the writ petition is fit to be transferred to the Armed Forces Tribunal at Kolkata. [1]

 Learned Counsel who appears on behalf of the Petitioner, opposed the Respondents’ prayer and submitted that the challenging order is without jurisdiction as no offence under Section 63 of the Armed Forces Tribunal Act is constituted on the facts and the allegations made against the Petitioner. This Court thus has the jurisdiction to hear the writ petition under Article 226 of the Constitution of India. The writ petition here relates to the matter concerning the Armed Forces Tribunal which is set up for the purpose of deciding all the disputes relating to the service matter. In this case the writ petition is transferred to the Armed Forces Tribunal at Kolkata.

Facts

 The facts and situations from which this case follows are that the petitioner or the appellant was enrolled in the Army as a recruit on 30th August, 1986 and was released with effect from 31.07.1989. He was released on the ground that he had given a false declaration at the time of his enrolment stating that no criminal case was pending against him, which was found to be false statement on verification. He challenged the said order of discharge or release dated 31.07.1989 by filing a writ petition in 1996 which was dismissed on the ground that it is an illegal judgement (vide impugned judgment) and the order dated 13.02.2004 recorded the following findings of fact:

-During the time of enrolment, the petitioner was involved in a Criminal Case No. 114 of 1983 according to Section 379 of IPC.

– While filling up the application for enrolment, he did not disclose in his declaration the pendency of the said criminal case against him.

-It was brought to the knowledge that at the time of verification the petitioner had concealed the material information which particularly asked about his involvement in the criminal case.

– The petitioner was held discharged as he had obtained the employment by misrepresentation as he was not likely to become an efficient soldier.

-Though released on probation, the petitioner of the said criminal case was found guilty.[2]

Issues

Shri A.K. Srivastava is the learned Counsel who appears for the appellant. He has submitted that no opportunity of being heard was given to the petitioner-appellant before passing the order of discharge and the procedure prescribed for discharge under the Rules was not followed. As the petitioner-appellant has been given the benefit of Probation of Offenders Act, 1958, the termination order was liable to be set aside. It is set forth that the criminal Court while making the decision of the case has made an observation that his conviction would not adversely affect his service career in view of the provisions of Section 12 of the Act 1958.

 On the other side, Smt. Anuradha Chauhan is the learned Counsel who appears for the respondents who has forcefully opposed the appeal asserting that the petitioner-appellant had played fraud while gaining employment, therefore, it stood corrupted and in such a fact situation, as the appellant had not disclosed the pendency of the criminal case and subsequently has been convicted by the Court, no indulgence should be given to him. Moreover, granting the benefit of Act 1958 would not entitle the appellant any relief for the reason that it takes away the effect of sentence and not of conviction. Thus, the appeal is liable to be dismissed.

The appellant in this case had to fill up the application form in the year 1986 where a particular column 8 was required to be furnished by the applicant. The details regarding whether the applicant had ever been imprisoned or had been put under trial or any complaint had ever been made against the applicant to the Magistrate or Police for any offence has to be specifically stated. In this case the petitioner-appellant filled up the said column by writing the word ‘no’. Therefore, there is no dispute that he had not furnished the correct information which is required for in this regard. The application form had been filled up by some other person in English but has been signed by the appellant himself. The appellant had been tried in a criminal case which has subsequently been decided in the judgment and order dated on 12.07.1995, wherein he stood convicted for the offence punishable under Section 379 of IPC. However, the appellant has been given the benefit of the provisions of Act 1958. Further it has also been noticed that the conviction would not adversely affect his civil rights in view of the provisions of Section 12 of the Act 1958. It is a settled proposition of law that where an applicant gets an order from the office by making misrepresentation or playing fraud upon the competent Authority, such order cannot be sustained in the eyes of law. 

 The Common Law doctrine of public policy can be implemented whenever an action offends the public interest or where a harmful result arises for permitting the injury to the public at large is evident. Moreover, if an initial action is not in accord with law, the subsequent conduct of a party cannot approve the same. A person having done a wrongful act cannot take advantage of his own wrong and plead bar before the law to infuriate the lawful trial by a competent court. In such a case legal maxim “Nullus Commodum capere Potest De Injuria Sua Propria” applies. The lawbreakers cannot be permitted to compel that their offence cannot be a subject matter of inquiry, trial or investigation. [3]

 A person cannot claim any right arising out of his wrongful act. The submission made by the learned Counsel for the appellant which challenged the orders could not have been passed without giving him an opportunity to be heard is absurd. The reason for the absurdity is that in such case where an order is obtained by misrepresentation or fraud, the principles of natural justice are not attracted to correct the mistake which the officials had committed because of the fraud made by the applicant. In such circumstances, termination takes place.

In this case, it remained uncontested and unquestionable that the petitioner had not furnished the information which was required at the time of recruitment accurately. The ratio laid down by the Honorable Supreme Court in various cases is such that the dishonesty should not be allowed to succeed and benefit the persons who played fraud or misrepresentation and in such instances the Court should not maintain the fraud by undertaking the petitions on their behalf. Therefore, it is the antecedent, conduct and the character of the candidate to be appointed to a service is of great importance and not of the result of the crime in which he is involved.

Here the appellant has obtained the employment by misrepresentation, i.e., concealing the material facts required by the appointing authority. The information was required to verify his character and conduct. Therefore, neither the result of the prosecution nor the nature of the offence in which he had been involved has any bearing on the case.

It is settled legal proposition that once a person signs a document and admits that he has signed it, he cannot neglect the fact that he had signed without realizing the contents of the said document. The submissions made for this purpose lacks merit and is thereby liable to be repudiated. The next contention of the learned Counsel for the appellant that once the trial Court has accorded the appellant the benefit under the Act 1958, the effect of the conviction stands washed away and the impugned order is liable to be set-aside, is preposterous and, thus, cannot be accepted. 

As the appellant has been released or discharged on probation will not affect his service career in view of the Section 12 the Probation of Offenders Act.

Related Provisions

The Probation of Offenders Act, 1958 and its Section 12 are the relevant provisions of this case. Section 12 states about the removal of disqualification attaching to conviction. Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law: Provided that nothing in this section shall apply to a person who, after his release under section 4 is subsequently sentenced for the original offence.[4]

Related Cases

In a leading case of Andhra Pradesh State Financial Corporation v. GAR Re-Rolling Mills and Anr as well as in the case of State of Maharashtra and Ors. v. Prabhu, the Supreme Court has observed that a writ Court while exercising its equitable jurisdiction, should not act as to prevent the execution of a legal fraud as the Courts are obliged to do justice by the promotion of good faith. 

 In the case of Smt Shrisht Dhawan v. Shaw Bros it was held that the fraud and collusion vitiate or impair even the most solemn proceedings in any civilized system of jurisprudence. It is a notion vivid of human conduct.

Likewise, in the case of Shanker Das v. Union of India and Anr, the Supreme Court has held that the order of dismissal from service which is resultant upon a conviction is not a disqualification within the meaning of Section 12 of the Act, 1958. For instance, there are Statutes which provide that the persons convicted for certain offences shall incur certain disqualification. Chapter III of the Representation of Peoples Act, 1951 which entitles disqualification for Membership of Parliament and State Legislatures and the Chapter IV which entities disqualification for voting, contains the provisions which disqualify persons convicted on certain charges from being the Members of Legislatures or from voting at election to the legislature. This is the sense in which the word ‘disqualification’ is used in Section 12 of the Probation of Offenders Act. As a result of this, it is not possible to accept the conclusion made by the High Court that the Section 12 of the Act takes away the effect of conviction for the purpose of service also.

 In another case of the Divisional Personnel Officer, Southern Railway and Anr. v. T.R. Challappan, the Supreme Court observed that the conviction of an accused does not stand eroded because that is the sine-qua-non (an essential condition) for the order of release on probation. The order of release on probation is merely in exchange  of the sentence to be charged by the Court. Thus, the facts of guilt on the criminal charge is not discarded solely by passing the order under the Probation of Offenders Act,

 In the case of State of Uttar Pradesh v. Ranjit Singh, the Supreme Court has held that the High Court while deciding a criminal case and giving the benefit of the Act, 1958, or any other similar enactment, has no power to issue any direction that the accused shall not suffer any civil consequences. [5]

In the case of United India Insurance Co. Ltd. v. Rajendra Singh and Ors, the Apex Court observed that fraud and justice never settle together. The ratio laid down by the Honorable Supreme Court in various cases is that dishonesty should not be permitted to bear the fruit and thereby the benefit to the persons who played fraud or made misrepresentation. In such circumstances the Court should not maintain the fraud by entertaining the petitions on their behalf. In the case of Union of India and Ors. v. M. Bhaskaran 1995, the Supreme Court stated that if by commission of fraud an employment is acquired then it cannot be permitted to be allowed by a Court of Law as the employment secured by the fraud will be considered as voidable at the option of the employer. 

In cases of Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav and A.P. Public Service Commission v. Koneti Venkateswarulu , the Honorable Supreme Court examined a similar case, where the employment had been obtained by concealing the material facts that the criminal proceedings were pending against him at the time of appointment. The Court rejected the plea taken by the employee stating that the information was not furnished correctly and there was a subsequent withdrawal of the criminal case registered against him or the nature of offences were immaterial. Concealing of material information & making a false statement has a clear relevance on the employee’s character in relation to his continuity of service. 

 In a case of U.P. Junior Doctors Action Committee v. Dr. B. Sheetal Nandwani and Ors; the students had obtained admission for an M.B.B.S. course by making misrepresentation. The Supreme Court declined the plea of applicability of the Rules of Natural Justice. This was because the court mentioned that under the circumstances in which such benefit had been taken by the concerned candidates; it does not justify that the natural justice has been followed by giving them an opportunity of being heard. Even in a case where an applicant may not be responsible for playing fraud, his appointment may be cancelled without giving him an opportunity of being heard. The Authority may come to a conclusion that the appointment is a result of fraud by the Members of the Selection Committee which though the candidate had not portrayed any mischievous play. 

In the case of Trikha Ram v. V.K. Seth, the Supreme Court has held that if a person is convicted and is given the benefit of the provisions of the Act of 1958, his services can be put to an end only on the ground that he stood convicted. However, the provisions of Section 12 of the Act, 1958, states that his dismissal cannot be a ‘disqualification’ for the purposes provided in other Statutes. The same view has been restated in the cases of Union of India v. Bakshi Ram and I the case of Karam Singh v. State of Punjab.[6]

Judgements

Section 12 of the Probation of Offenders Act will apply only in respect of a disqualification that goes with a conviction under law which provides for the offence and its punishment. That is the plain meaning of the words “disqualification, if any, attaching to a conviction of an offence under such law” therein. The law has provision for an offence and its punishment also stipulates a disqualification, a person convicted of the offence but released on probation does not by reason of Section 12, suffers the disqualification. It cannot be held that by reason of Section 12, a conviction for an offence should not be taken into account for the purposes of dismissal of the person convicted from government service.

It is quite hard to identify when the High Court while deciding a criminal case directs that the accused must be considered to have been in continuous service without break and thereby, he should be paid his full pay and dearness allowance during the period of his suspension. This direction and observation are wholly without jurisdiction.

Thereby in view of the above matters, the law in this regard can be summed up that the benefit of the Act 1958 takes away the benefit of sentence and not of the conviction, the submissions made on behalf of the appellant that the appellant has been granted the benefit of the Act 1958 cannot be sustained, being preposterous. Moreover, the Court which deals with the criminal case is not competent enough to make any observation which may have bearing on the civil rights of the parties, particularly in cases of service matters.[7]

In view of the above, the appeal made to the court lacks merit and is thereby dismissed.

Concepts Highlighted 

This case mainly deals with the provision of Section 12 of the Probation of Offender’s Act.

The case takes place before the High Court of Jharkhand.

The case basically deals with the appellant who went for appeal as he was dismissed from the position of an army recruit for obtaining the employment by mischievous ways.

The right to file for an appeal in the High Court is based on the Article 226 of the Constitution.

The appeals made by the appellant are dismissed on appropriate grounds as it is stated that the case lacks merit.

References

Ramesh Prasad v Union of India, (Allahabad High Court April 18, 2006). https://indiankanoon.org/doc/332034/

Ramesh Prasad v Union of India, (October 7, 2020). https://www.casemine.com/judgement/in/5608eb80e4b0149711118ce7


[1] Ramesh Prasad v Union of India, (Allahabad High Court April 18, 2006). https://indiankanoon.org/doc/332034/

[2] Ramesh Prasad v Union of India, (October 7, 2020). https://www.casemine.com/judgement/in/5608eb80e4b0149711118ce7

[3] Ramesh Prasad v Union of India, (October 7, 2020). https://www.casemine.com/judgement/in/5608eb80e4b0149711118ce7

[4] Ramesh Prasad v Union of India, (Allahabad High Court April 18, 2006). https://indiankanoon.org/doc/332034/

[5] Ramesh Prasad v Union of India, (Allahabad High Court April 18, 2006). https://indiankanoon.org/doc/332034/

[6] Ramesh Prasad v Union of India, (Allahabad High Court April 18, 2006). https://indiankanoon.org/doc/332034/

[7] Ramesh Prasad v Union of India, (Allahabad High Court April 18, 2006). https://indiankanoon.org/doc/332034/

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