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PETITIONER: SANJAY KUMAR BAJPAI

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       12/02/1997

BENCH: S.C. AGRAWAL, K.S. PARIPOORNAN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      This appeal  is directed  against the  judgment of  the Allahabad High  Court (Lucknow  Bench) dated  September  13, 1993 whereby  Writ Petition  No 10117  of 1989  filed by the appellant has  been dismissed. In the said Writ Petition the appellant had  assailed the  validity  of  the  order  dated September 12,  1989 discharging  him from  service as  M.E.R (Technical)/Nursing Assistant in the Army Medical Corps.      The   appellant    appeared   in   M.E.R.   (Technical) Examination  conducted   by  Headquarters  Recruiting  Zone, Lucknow on  January 24,  1988. On the basis of the result of the said  examination he  was selected  for  recruitment  as M.E.R.  (Tech.)/Nursing   Assistant  in   the  Army  Medical College.  He  was  enrolled  as  M.E.R.  (Technical)/Nursing Assistant on  February 29,  1988. At the time of enrolment a form is required to be filled on the basis of the answers to question put  to  the  person  seeking  enrolment.  For  the purpose of enrolment the enrolment form as prescribed by the relevant rules  was filled.   It si not disputed that at the time of  his enrolment  the appellant  was being  prosecuted before the  Special Judicial Magistrate (pollution Control), U.P., Lucknow  for offences under Sections 147, 452, 324 and 323 I.P.C.  The case  of the respondents is that at the time of  enrolment   the  appellant   was  asked   the  following question:-      "Q.No. (8):    Have you  ever  been      imprisoned by  the civil  power  or      are you under trial for any offence      or has any complaint or report been      made against  you to the Magistrate      or Police  for any offence ? If so,      give details."      In the  enrolment form  it is  recorded that  the  said question was answered by the appellant by the word "No". The enrolment form of the appellant was sent for verification to the District  Magistrate, Lucknow,  After  verification  the District Magistrate,  Lucknow, by  his letter dated December 21, 1988,  informed the  A.M.C. Centre  and School about the pendency of  the criminal  case against  the appellant.   On receipt  of   the  said   communication  from  the  District

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Magistrate, Lucknow,  a show-cause notice dated May 20, 1989 was issued  to the appellant whereby he was informed that it had come  to the notice that the appellant was involved in a civil case  and he  had deliberately  given false answers to the question  put to  him by the enrolling officer regarding involvement in  any civil case at the time of enrolment. the appellant was  required to  show cause  why he should not be discharged  from   service  on  account  of  the  same.  The appellant in  his communication  dated May 23, 1989 admitted about the  pendency of  the criminal  case against  him  but asserted that  he had  been falsely  implicated in the same. After considering  the said  communication of  the appellant the impugned  order dated  September  12,  1989  was  passed whereby he  was   discharged from  service under  Army  Rule 13(3) (IV)  of the  table appended below Rule 13 of the Army Rules which  contains three clauses. Clause (IV) of the said table enables  discharge of  a person enrolled under the Act but not  attested who is considered as unlikely to become an efficient  soldier   and  whose   services  are  not  longer required.      The case  of the  appellant is  that the enrolment form was not  filled on  the basis of the answers given by him to questions put  to him  at the time of enrolment and that the signatures of  the appellant  were  obtained  on  the  blank anrolment form and the same was filled later and, therefore, the appellant  cannot be  held responsible for any statement contained in the said enrolment form and the action that has been taken  against him  on the    basis  of  the  statement contained in  the enrolment form cannot be held to be valid. It has  also been  asserted by  the appellant  that the show cause notice  date May  20, 1989 was never served on him and only an  oral query  was made  by the Commanding Officer and that  in  response  to  the  said  query  he  had  sent  the communication dated May 23,1989 giving his explanation about the  criminal   case  that  was  pending  against  him.  The submission of  the appellant  is that  he never made a false statement that  not case was pending against him at the time of enrolment.      Shri  P.P.   Malhotra,  the   learned  senior   counsel appearing for  the respondents,  has placed  before  us  the original inrolment  from  regarding  the  enrolment  of  the appellant on  February 29,  1988. The said enrolment form is required to  be filled  under Section  13 of  Army Act which lays down :-      "Upon  the  appearance  before  the      prescribed enrolling officer of any      person desirous  of being enrolled,      the enrolling  officer  shall  read      and explain  to him, or cause to be      read and  explained to  him in  his      presence,  the  conditions  of  the      service  for  which  he  is  to  be      enrolled; and  shall put to him the      questions   set    forth   in   the      prescribed form  of enrolment,  and      shall, after  having cautioned  him      that if  he makes a false answer to      any such question he will be liable      to  punishment   under  this   Act,      record or  cause to be recorded his      answer to each such question."      The enrolment  form of  the appellant contains question No. 8  referred to  above and the answer "No" against it. At the end  there is  the  following  declaration  bearing  the signatures of the appellant:-

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    "I Sanjay  Kumar Bajpai do solemnly      declare that the above answers made      by me  to the  above questions  are      true and  that  I  and  willing  to      fulfil the engagements made."      Having regard  to the  aforesaid provision contained in Section 13  of the  Army Act  and the Answers that have been recorded in the Enrolment form as well as the declaration at the end  of the  form under Signatures of the appellant that the answers  made by  him to  the questions are true, we are unable to  uphold the  contention of  the appellant that the answers recorded against the questions in the enrolment form were not  based on  the answers given b him at the time when the said  form was  filled  and  that  his  signatures  were obtained on a blank form which was filled by the authorities without the  appellant being required to give answers to the questions. Having  appended his signatures at the end of the form it  is not  open to  the appellant to dis-own the same. The filling  of enrolment  form was an official act required to be  performed under  Section 13  of the  Army Act  and  a presumption about  regularity of  such official  act and  be drawn. There is not reason to assume that the enrolment form was  not   filled  in  the  manner  as  required.  We  must, therefore, proceed  on the  basis that  the answers that are recorded  against   the  question   contained  in  the  said enrolment form  are based  on  the  statement  made  by  the appellant at  the  time  of  enrolment.  Since  as  per  the enrolment form  question No. 8 was answered in the negative, must be held that at the time of enrolment the appellant did not disclose  that the criminal case was pending against him and made  a false statement that no case was pending against him at the time.      Shri  Vikas   Singh,  the   learned  counsel   for  the appellant, has  laid emphasis  on the averments contained in para 8 of the counter affidavit of Major Kishan Lal filed on Behalf of  the respondents  in the  High Court as well as in Para F(i)  of  the  counter  affidavit  of  Captain  Krishna Chander filed  in this  Court wherein  it is stated that the appellant was  asked by  the enrolling officer the following question "is  any case  pending against  you in any court of Law" at  the time of filing of enrolment form and that reply was "No".  The submission is that the question as set out in the aforesaid  counter  affidavits  is  different  from  the question No.  8 as  contained in the enrolment form produced in this  Court. It  is no  doubt true  that in the aforesaid paragraphs of  the counter affidavits filed on behalf of the respondents in the High Court and in this Court the question that was  put to  the appellant  at the time of enrolment is not in  the same  terms as  question No.  8 of the enrolment form. But  we do  not  find  any  major  difference  in  the question as  mentioned in the said paragraphs of the counter affidavits and  question No  8 in  the enrolment  form.  The substance of  the both is the same, namely, whether any case was pending  against him  in court.  All that can be said is that the  deponents of  the counter  affidavits filed in the High Court  and in  this Court  did not  bestow due care and attention while  preparing the  counter affidavits.  It  was expected that  while  making  the  affidavit  the  deponents should have  carefully  examined  the  record  of  the  case including the enrolment form and , if they had dome so, this discrepancy  would   not  have   occurred.  The   additional affidavit of  the Lt. Col. A.K. Mitra correctly mentions the question as  contained in the enrolment form. The said error in the  counter affidavits filled earlier cannot, therefore, be made  a ground  for holding  that the  impugned order  of

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discharge of the appellant is vitiated.      It was next submitted by Shri Vikas Singh that the show cause Notice  dated May  20,1989 was  never  served  on  the appellant and  action has  been taken  against  him  without affording a  reasonable opportunity  to him.  In this regard the learned  counsel has  urged that  no document  has  been produced to  show that  the said  notice was received by the appellant. This  fact has  been disputed  by the respondents and it  has been  submitted that the communication dated May 23, 1989  was sent  by the  appellant in  reply to  the said notice. The  case of  the respondents.  Is that  the  record relating to  the service  of the  show cause  notice is  not longer available  as it  has been weeded out.  we do not any ground to  doubt the  correctness of  the statement  made on behalf of the respondents that the notice dated May 20, 1989 was served  on the appellant. Moreover, the question whether the notice  dated May  20,1989 was received by the appellant or not  is not  of much  consequence because  the  appellant submitted his explanation regarding the pendency of the case against him  in his  reply dated  May 23,  1989 and the said explanation was considered by the authorities before passing the order of discharge dated September 12, 1989.      Shri Vikas  has invited  out attention to the statement made in  the counter  affidavit filed  by the respondents in this Court  wherein it is stated that the appellant had been convicted in  the criminal  case. It  is submitted  that the said statement  is a  false statement  because the appellant has actually been acquitted and the said false statement has been  deliberately   made  to  prejudice  the  case  of  the appellant. We do not find any met in this contention.      No ground  is thus  made out  for interfering  with the impugned judgment  of the High Court. The appeal, therefore, fails and it is accordingly dismissed. No Order as to costs.