Supreme Court Upholds Dismissal for Fraudulent Enrolment in Army: Ex Sig. Man Kanhaiya Kumar vs. Union of India (2018)

Date of the Judgment: 9 January 2018
Citation: (2018) INSC 11
Judges: A.K. Sikri, J., Ashok Bhushan, J.

Can the Army dismiss a soldier for using a fake certificate to get enrolled, even if there’s a specific procedure for such cases? The Supreme Court of India recently addressed this question in a case where a soldier was dismissed for using a false relationship certificate. This judgment clarifies the extent of the Army’s power to dismiss personnel under the Army Act, 1950. The two-judge bench, comprising Justice A.K. Sikri and Justice Ashok Bhushan, delivered the judgment.

Case Background

The appellant, Ex Sig. Man Kanhaiya Kumar, was enrolled in the Indian Army as a Sepoy/Washerman on 19 January 2009. After about six years of service, on 8 October 2014, he received a show cause notice alleging that he had fraudulently enrolled in the Army using a fake relationship certificate. The Army authorities dismissed him from service on 13 March 2015, under Section 20(3) of the Army Act, 1950. The appellant’s representation against this dismissal was rejected on 9 August 2016, leading him to challenge the dismissal order before the Armed Forces Tribunal (AFT).

Timeline

Course of Proceedings

The Armed Forces Tribunal (AFT) directed the respondent to produce relevant documents without admitting the formal original application. The appellant had admitted in his reply dated 5 November 2014 to the show cause notice that his father was not an ex-serviceman and that he had used a fake relationship certificate. The AFT, taking these admitted facts into consideration, upheld the dismissal, stating that the appellant’s enrolment was based on fraud.

Legal Framework

The Supreme Court considered the following legal provisions:

• Section 20 of the Army Act, 1950: This section deals with the dismissal, removal, or reduction in rank by the Chief of the Army Staff and other officers. Sub-section (3) states that an officer not below the rank of a brigade commander can dismiss or remove a person serving under their command, other than an officer or a junior commissioned officer.

  “20. Dismissal, removal or reduction by the Chief of the Army Staff and by other officers.—
  (1) The Chief of the Army Staff may dismiss or remove from the service any person subject to this Act other than an officer.
  (2) The Chief of the Army Staff may reduce to a lower grade or rank or the ranks, any warrant officer or any non-commissioned officer.
  (3) An officer having power not less than a brigade or equivalent commander or any prescribed officer may dismiss or remove from the service any person serving under his command other than an officer or a junior commissioned officer.”

• Section 122 of the Army Act, 1950: This section specifies the period of limitation for trials by court-martial. Sub-section (4) states that no trial for fraudulent enrolment shall be commenced if the person has served continuously in an exemplary manner for not less than three years.

  “122. Period of limitation for trial.—
  (1) Except as provided by sub-section (2) no trial by court-martial of any person subject to this Act for any offence shall be commenced after the expiration of a period of three years…
  (2) The provisions of sub-section (1) shall not apply to a trial for an offence of desertion or fraudulent enrolment or for any of the offences mentioned in section 37.
  (3) In the computation of the period of time mentioned in sub-section (1), any time spent by such person as a prisoner of war, or in enemy territory, or in evading arrest after the commission of the offence, shall be excluded.
  (4) No trial for an offence of desertion other than desertion on active service or of fraudulent enrolment shall be commenced if the person in question, not being an officer, has subsequently to the commission of the offence, served continuously in an exemplary manner for not less than three years with any portion of the regular Army.”

• Rule 17 of the Army Rules, 1954: This rule outlines the procedure for dismissal or removal by the Chief of the Army Staff and other officers, requiring that the person be informed of the cause of action and given a chance to respond, unless it is not expedient or reasonably practicable to do so.

  “17. Dismissal or removal by Chief of the Army Staff and by other officers.— Save in the case where a person is dismissed or removed from service on the ground of conduct which has led to his conviction by a criminal court or a court-martial, no person shall be dismissed or removed under sub-section (1) or sub-section (3) of section 20; unless he has been informed of the particulars of the cause of action against him and allowed reasonable time to state in writing any reasons he may have to urge against his dismissal or removal from the service:
  Provided that if in the opinion of the officer competent to order the dismissal or removal, it is not expedient or reasonably practicable to comply with the provisions of this rule, he may after certifying to that effect, order the dismissal or removal without complying with the procedure set out in this rule. All cases of dismissal or removal under this rule where the prescribed procedure has not been complied with shall be reported to the Central Government.”

Arguments

The appellant’s counsel argued that:

• The dismissal should not have been under Section 20(3) of the Army Act, 1950, which is a general provision.
• A specific provision, Section 122(4) of the Army Act, 1950, should have been invoked to deal with fraudulent enrolment.
• The general provision cannot be invoked when a specific provision exists to deal with the situation, as per established legal principles.

The respondents argued that:

• The appellant had admitted to using a fake relationship certificate for enrolment.
• The procedure under Rule 17 of the Army Rules, 1954, was substantially followed, as the appellant was given a show cause notice and an opportunity to respond.
• The fraudulent enrolment vitiates the entire action, making the dismissal justified.

Issues Framed by the Supreme Court

The Supreme Court considered the following issue:

1. Whether the dismissal of the appellant under Section 20(3) of the Army Act, 1950 was valid, given the existence of a specific provision under Section 122(4) of the same Act for cases of fraudulent enrolment.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Court considered the following authorities:

Judgment

How each authority was viewed by the Court?

• Union of India & Ors. v. M. Bhaskaran [1995 Supp. (4) SCC 100]*: The Court used this case to establish that employment obtained through fraud is voidable.
• Vice-Chairman, Kendriya Vidyalaya Sangathan & Anr. v. Girdharilal Yadav [(2004) 6 SCC 325]*: The Court reiterated the principle that employment obtained by fraud is voidable.
• Ram Saran v. IG of Police, CRPF & Ors. [(2006) 2 SCC 541]*: The Court used this case to validate the termination of service due to forged documents.
• Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. [(1948) 1 KB 223]*: The Court used this case to emphasize that judicial review is limited to the decision-making process and not the decision itself.
• R. Vishwanatha Pillai v. State of Kerala [(2004) 2 SCC 105]*: The Court used this case to highlight that those who obtain employment through fraud do not deserve sympathy.
• Rajeshwar Baburao Bone v. State of Maharashtra & Anr. [(2015) 14 SCC 497]*: The Court used this case to support the termination of service based on fake certificates.
• Union of India & Ors. v. Major General Madan Lal Yadav (Retd.) [(1996) 4 SCC 127]*: The Court invoked the principle that a person cannot benefit from their own wrongdoing.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the fact that the appellant had admitted to using a fake relationship certificate to gain enrolment in the Army. This act of fraud was deemed to vitiate the entire process of enrolment, making the dismissal justified. The Court emphasized that employment obtained through fraudulent means cannot be protected, and that the authorities were within their rights to dismiss the appellant under Section 20(3) of the Army Act, 1950. The Court also noted that the procedure under Rule 17 of the Army Rules, 1954, was substantially followed as the appellant was given a show cause notice and an opportunity to respond.

The court’s reasoning was based on the following points:

• The appellant admitted to using a fake relationship certificate.
• The court cited several precedents to show that employment obtained by fraud is voidable.
• The procedure under Rule 17 of the Army Rules, 1954, was substantially followed.

The court rejected the argument that Section 122(4) of the Army Act, 1950 should have been invoked, stating that the fraud committed by the appellant justified the dismissal under Section 20(3). The court stated that:

“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.”

The Court also noted:

“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 has admitted that Relationship Certificate produced by him is fake, the procedure as laid down in Section 20 of the Army Act, 1950 would be an empty formality.”

The Court concluded:

“We are, therefore, of the opinion that the authorities were well within their right who exercised their power under Section 20(3) of the Army Act, 1950.”

Key Takeaways

• Employment obtained through fraudulent means, such as fake certificates, can be terminated by the employer.
• The Army has the power to dismiss personnel under Section 20(3) of the Army Act, 1950, when fraudulent enrolment is established.
• Substantial compliance with the procedure under Rule 17 of the Army Rules, 1954, is sufficient for dismissal in such cases.
• The principle that a person cannot benefit from their own wrongdoing applies in cases of fraudulent enrolment.

Directions

No specific directions were given by the Supreme Court in this case.

Development of Law

The ratio decidendi of this case is that when a person obtains employment through fraudulent means, such as by using a fake certificate, the employer has the right to terminate the employment. The Court reiterated that a person cannot benefit from their own wrongdoing. This case reinforces the existing legal position that fraud vitiates any action and that employers have the right to terminate employment obtained through fraudulent means. There is no change in the previous position of law.

Conclusion

The Supreme Court dismissed the appeal, upholding the dismissal of the appellant. The Court found that the appellant’s fraudulent enrolment, based on a fake relationship certificate, justified his dismissal under Section 20(3) of the Army Act, 1950. The judgment reaffirms the principle that fraud vitiates all actions and that employers have the right to terminate employment obtained through fraudulent means.