L/Naik, Dhananjay Singh vs State of U.P. and Others

Sudhir Agarwal, J.—Heard Sri Deepak Kumar Jaiswal for the petitioner learned Standing Counsel for the respondents and perused the record. As agreed by the learned Counsel for the parties, the writ petition is being heard and decided under the Rules of the Court at this stage.

The petitioner is aggrieved by the order dated 22nd April, 2006, Annexure 3-A to the writ petition passed by the respondent No. 4 cancelling his appointment on the post of Constable in Provincial Arms Constabulary (hereinafter referred to as "P.A.C.") on the ground that the same has been obtained by impersonation.

It appears that the petitioner was selected and appointed as Constable in P.A.C. in the year 1992. A complaint appears to have been made against the petitioner sometimes in 2004 that he is actually Shatrughan Singh and having utilized the certificates and documents of his younger brother Dhananjay Singh, he has obtained the aforesaid appointment by impersonation. This complaint was made by Raj Bahadur Singh, resident of the same village to which the petitioner belong. Thereupon the Commandant, 42nd Bn PAC, Naini, Allahabad directed the Deputy Commandant, 42nd Bn P.A.C., Naini, Allahabad to make a preliminary enquiry and submit his report which was submitted by him on 21st February, 2006 finding the complaint against the petitioner to be correct and recommending criminal as well as disciplinary proceeding against the petitioner.

Pursuant to the said preliminary enquiry report dated 21st February, 2006, the Commandant, P.A.C., Naini, Allahabad issued a show cause notice dated 13th March, 2006 which was replied by the petitioner on 25th March, 2006 controverting and seriously disputing the allegations levelled against him and requesting for proper enquiry giving him opportunity of examination and cross examination but thereafter the impugned order dated 22nd April, 2006 was passed. It is also said that a first information report was also lodged against the petitioner on 23rd June, 2006 as Case Crime No. 147 of 2006, under Sections 419, 420, 468, 471 I.P.C.

It is contended that without holding any enquiry and giving opportunity to the petitioner, the impugned order has been passed and as such the entire proceedings are wholly illegal and void ab initio, inasmuch as, the impugned order amounts to dismissal of the petitioner from service after more than 14 years of service and it could not have been done without complying the procedure prescribed under Article 311(2) of the Constitution of India read with Rule 14 of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules 1991.

Learned Standing Counsel relying on his counter affidavit, which also reiterate the above facts, said that the petitioner obtained above appointment by fraud and misrepresentation, therefore, no regular enquiry was necessary and after issuing a show cause notice his appointment itself has been cancelled.

It is no doubt true that if an appointment has been obtained by fraud or misrepresentation, in law, it vitiates everything and therefore, it would not confer any right upon the incumbent to remain in service. However ,proper enquiry against whom such allegations are made is also necessary otherwise it would amount to condemning a person without affording him any hearing or opportunity. In the case in hand, after receiving the complaint, only a preliminary enquiry was conducted by Deputy Commandant, who recorded statements of several persons on his own, ex parte, without allowing participation of the petitioner therein. The petitioner had no occasion either to cross examine such persons or to place his own defence. On the basis of such preliminary enquiry report wherein also the authority concerned has recommended criminal proceedings as well as disciplinary proceedings, it was not open to disciplinary authority to proceed further and straight way pass an order having the effect of dismissing services of the petitioner without holding any regular enquiry. The entire proceedings, in my view, in the face of it, are wholly illegal and in utter violation of principles of natural justice. The disciplinary authority treated the enquiry report and the examination of witness, which is all ex parte, as a proven fact and onus has been laid upon the petitioner to disprove the same which is illegal and contrary to law.

In the circumstances, in my view, the impugned order cannot sustain. The writ petition is accordingly allowed. The impugned order dated 22nd April, 2006 (Annexure 3-A to the writ petition) is hereby quashed. The petitioner shall be entitled for consequential benefits. However, this judgment shall not preclude the respondents from initiating the proceeding afresh in accordance with law and to pass a fresh order after holding an enquiry and giving adequate opportunity of defence to the petitioner.

It is also made clear that this judgment shall not, in any way, be construed as expressing opinion on the merit on the issue as to whether the petitioner had obtained appointment on fraud or misrepresentation, and, neither criminal proceedings nor disciplinary proceedings initiated against the petitioner shall be affected in any manner by such observation, if any, made in this judgment. Such proceedings may be held/initiated/continued on the basis of material available on record and independently.