# Raj Kumar v. Union of India and others

- **Citation:** (2003) 3 ILRA 938
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-09-24
- **Case number:** Civil Misc. Writ Petition No. 9080 of 2003
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-v-union-of-india-and-others-40225
- **Pages:** 7

## Headnote

Constitution of India, Article 226-Service
Law-termination-false declaration, about
pendency of criminal case given before
summary departmental proceedings-no
procedural irregularity found-dismissal
from service-held-proper.

Held: para 13

In the present case, petitioner had
willfully made false declaration. He was
subjected to proceeding of Summary
Security Force Court in which he denied
that he denied to the charge. His denial
was found to be false. The procedure
provided for Summary Security Force
Court was duly followed. He was, as
such, rightly dismissed from service.
Case laws discussed:
1997 (2) UPLBEC 1201
1999 (2) SCC 247
2000 (1) ESC 688
2002 (1) ESC (Alld) 69
1997 SCC (L&S) 492
JT 2002 (2) SC 256

## Text

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938 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

10. Keeping in mind the scope and
ambit of power of judicial review in
administrative actions, we are not inclined
to scrutinize the policy decision of the
State for creation of Ambedkar Park,
particularly when the petitioner has not
been able to make out any case for
judicial review. Added to that, it may be
noted, the report of the Comptroller &
Auditor General of India regarding
expenditure incurred for the said project is
under scrutiny by the State Legislature
and no decision has yet been taken
thereon. We hope and trust, the august
House, a trustee of public exchequer will
take a decision on the report of the
Comptroller & Auditor General of India
without further delay to reinforce people's
faith in it. In the event, no decision is
taken or there is delay in taking a
decision, the Court in due discharge of its
constitutional
function
may
pass
appropriate order either suo moto or
approach being made by a public-spirited
individual
or
by
any
association
espousing public cause.

In view of discussions made above,
the writ petition having no merit is
dismissed. In the circumstances, there
shall be no order as to cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.09.2003

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 9080 of 2003

Raj Kumar

...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri Arvind Srivastva

Counsel for the Respondents:
Sri B.N. Singh, S.S.C.
Sri Deepak Verma, A.S.C.
S.C.

Constitution of India, Article 226-Service
Law-termination-false declaration, about
pendency of criminal case given before
summary departmental proceedings-no
procedural irregularity found-dismissal
from service-held-proper.

Held: para 13

In the present case, petitioner had
willfully made false declaration. He was
subjected to proceeding of Summary
Security Force Court in which he denied
that he denied to the charge. His denial
was found to be false. The procedure
provided for Summary Security Force
Court was duly followed. He was, as
such, rightly dismissed from service.
Case laws discussed:
1997 (2) UPLBEC 1201
1999 (2) SCC 247
2000 (1) ESC 688
2002 (1) ESC (Alld) 69
1997 SCC (L&S) 492
JT 2002 (2) SC 256

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Heard Sri Arvind Srivastava for
petitioner
and
Sri
Deepak
Verma,
Additional Standing Counsel for Union of
India, respondents 1 to 4.

Petitioner was enrolled as Constable
in Border Security Force on 5.3.2002. He
completed his training in the month of
December, 2002 and was posted as
Constable in 14th Battalion in Punjab. On
28.6.2002, petitioner was called by
Additional Deputy Director General of
Police/Commandant
STC,
Training
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939
Centre North Bengal, Baikunthour, New
Jalpai Guri. The Commandant made
enquiries from petitioner, whether any
criminal case is pending against him or he
has been sent to jail. The petitioner
replied to both the questions in negative.
The petitioner was also asked whether he
had made any false declaration in his
enrolment form. The petitioner denied
that he had made any such false
declaration. By an order dated 17.1.2003
passed by respondent no. 4, petitioner's
services have been terminated. The order
states that petitioner was tried by
Summary
Security
Force
Court
on
17.1.2003 for an offence committed by
him under Section 23 of the BSF Act for
"Making at the time of enrolment a
wilfully false answer to a question
setforth in the prescribed form of
enrolment, which was put to him by the
Enrolment Officer before whom appeared
for the purpose of his enrolment".
Petitioner was found guilty for the charge
and
awarded
punishment,"
To
be
dismissed from service". The sentence of
the Court was promulgated to him on
17.1.2003, and he was struck off the
strength of the Centre with effect from
17.1.2003.

2. In paragraph 8 of the writ petition,
petitioner has stated that on 25.1.2003
certain documents were given to him
including enrolment form, copy of the
letter dated 27.3.2002 for verification of
petitioner's character, copy of the letter
dated 6.6.2003 by the District Magistrate,
Gorakhpur, copy of the report dated
28.6.2002, copy of the proceedings before
the Commandant on 28.6.2002 and the
copy of the statement of PW1, and the
copy of report of Local Intelligence Unit
dated 9.5.2002. The District Magistrate on
verification of enrolment form reported
that a case under section 323,504 and 325
IPC in case crime no. 518 of 2001 is
pending against petitioner. This report
was made in pursuance of the report of
Senior
Superintendent
of
Police,
Gorakhpur on 22.5.2002.

3. Sri Arvind Srivastava, counsel for
petitioner contends that the proceedings
of Summary Security Force Court never
took place in presence of petitioner, and
that petitioner was not permitted to give
his reply, submit his defence and to crossexamine PW-1. He submits that a false
F.I.R. dated 30.6.2001 was registered on
complaint of Sri Phool Chand against
Ram Laut, Behari, Lallan and Pappu alias
Jogindra. The allegations were totally
false and had no concern with the
petitioner. Petitioner was preparing for
PCS examination in district Mirzapur and
was not even present on the date of
occurrence. He submits that Ram Laut has
three sons namely- Ramesh, Pappu alias
Jogindra and the petitioner which is
evident
from
the
Kutumb
Register
enclosed as annexure 13 to the writ
petition. Copy of the report of District
Magistrate or Senior Superintendent of
Police was not given to petitioner and
without giving any charge-sheet petitioner
was dismissed violating principles of
natural justice. He further submits that
enrolment form provided five instances in
clause 12 that petitioner had ever been
arrested nor any case has been registered
against petitioner or he ever been
punished
or
bound
over
interned,
convicted,
arrested,
prosecuted
or
otherwise dealt with under any law in
force in India or out side. It is contended
that petitioner has never been arrested,
prosecuted, convicted and dealt with
under law in force in India and no case is
pending against him.
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940 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
4. By an order dated 27.2.2003, this
Court issued notice for service upon the
newly
respondents
namely,
Senior
Superintendent of Police, Gorakhpur and
District
Magistrate,
Gorakhpur,
and
directed them to file counter affidavit to
meet the allegations made in the writ
petition with regard to generating false
report against petitioner.

5. Sri Awanish Kumar Awasthi,
District Magistrate, Gorakhpur and Sri
Virendra Kumar, Senior Superintendent
of Police, Gorakhpur have filed their
affidavits verified on 29.3.2003. The
District Magistrate in his affidavit has
stated in para 8 that the respondent no. 4
vide letter dated 27.3. 2002 directed
answering respondent to verify the
character and antecedents of Sri Raj
Kumar, the petitioner, and submit report
to him. Acting upon the said letter of the
then District Magistrate the then Senior
Superintendent of Police, Gorakhpur got
the character and antecedents of Raj
Kumar son of Ram Laut verified from
police records and Local Intelligence Unit
and on the basis of the report dated
22.5.2002
submitted
by
the
Senior
Superintendent of Police, Gorakhpur to
then District Magistrate, Gorakhpur, then
District Magistrate, Gorakhpur submitted
a verification report vide letter dated
6.6.2002. Sri Virendra Kumar, Senior
Superintendent of Police, Gorakhpur has
stated in paragraph 8 of his affidavit that
verification of character and antecedents
of petitioner was conducted by police/LIU
and a report was submitted that case
crime no. 518 of 2001 under section
323,504 and 325, IPC has been registered
against Sri Raj Kumar at Police Station-
Shahjanwan and a criminal case is
pending against him in court. Relying
upon this report, Senior Superintendent of
Police submitted a report dated 22.5.2002
to the District Magistrate. In paragraph 9
it is submitted that a non cognizable
report no. 55 of 2001 was lodged by Sri
Phool
Chandra
in
Police
StationShahjanwa, District-Gorakhpur. On the
basis of said report, case crime no. 518 of
2002 under section 323 and 325 IPC was
registered against Ram Laut son of Dukhi,
Bechan son of Ram Jatan, Lallan son of
Shiv Balak, Pappu son of Ram Laut. The
matter was investigated and during the
investigation it was found that Pappu son
of Ram Laut named in the aforesaid non
cognizable report was also known as Raj
Kumar alias Pappu son of Ram Laut and
that the aforesaid offence was prima facie
found to have been committed by the
aforesaid
accused
persons
and
accordingly they were challaned and a
charge-sheet no. 109 of 2001 was filed in
the Court. During investigation, the
accused, petitioner Raj Kumar has also
made
his
statement
before
the
Investigating Officer. The charge-sheet as
well as various parchas no. 2,3 and 4
prepared by the Investigating Officer,
have been annexed to the Counter
Affidavit.
Petitioner,
Raj
Kumar
surrendered
before
the
ACJM
II
Gorakhpur and was enlarged on bail. In
this regard Photostat copy of 'Hajri Va
Jamant Suchana' dated 21.9.2001 was also
filed with the affidavit. He has further
stated that the questionnaire obtained by
petitioner is of no help. The charges were
framed against Pappu alias Yogendra.
Since the charge-sheet was submitted
against Raj Kumar alias Pappu son of
Ram Laut, therefore, Pappu mentioned in
the charges is to be taken at Raj Kumar
alias Pappu son of Ram Laut. The
attention of the Court concerned to the
aforesaid discrepancy was invited by the
police concerned vide application dated
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1.12.2002 in which necessary action has
been ordered by the Court. The Senior
Superintendent of Police, Gorakhpur
found it quite clear from the aforesaid
documents
and
information
that
a
criminal case registered against petitioner
is pending.

6. Counsel for petitioner took pains
in trying to establish from the aforesaid
documents and from the supplementary
affidavit that Ram Laut had three sons
and that Pappu is petitioners brother and
that Raj Kumar has been wrongly
described as 'Pappu'. He submits that it is
case of false identity.

7. I have gone through the Kutumb
Register, first information report, chargesheet, application, parchas prepared by
the Investigating Officer who also took
statement of Raj Kumar alias Pappu.
Although
the
accused
denied
the
allegations against them, the fact that Raj
Kumar son of Ram Laut is an accused and
was granted bail and has been chargesheeted in the aforesaid crime, cannot be
doubted.
The
report
of
Senior
Superintendent of Police and the District
Magistrate are specific about the identity
of petitioner as an accused in the
aforesaid crime.

8. Sri Srivastava further submitted
that an extreme and harsh punishment has
been given to the petitioner in terminating
his services. According to him, even if
may been taken that Raj Kumar alias
Pappu is facing trial, the nature of offence
alleged to have been committed is trivial
and that the petitioner should not have
been dismissed on this ground. According
to him, petitioner is only an accused and
has not been convicted of the offence so
far.
9. Having heard counsel for parties,
I find that proceedings of Summary
Security Force Court were held after the
reports from District Magistrate was
received by respondent no. 4. It was
found that petitioner was charged with
making willfully false statement in
enrolment form. He was given the entire
proceedings of Summary Security Force
Court and after being punished he was
struck off from the Centre. In the
enrolment form, the petitioner had replied
to Clause XII in negative, whereas he was
facing criminal trial in which he was
granted bail, and was not convicted.
Petitioner has relied upon decisions in
Qamrul Hoda Vs. Chief Security
Commissioner, North Estern Railway,
Gorakhpur (1997) 2 UPLBEC 1201;
Regional Manager, Bank of Baroda Vs.
Presiding
Officer,
Central
Government, Industrial Tribunal and
another (1999) 2 SCC 247 and a
Division Bench of this Court in
Awadhesh Kumar Sharma Vs. Union of
India (2000) 1 ESC 688 as well as the
Judgment in Satish Kumar Shukla Vs.
Union of India (2002) 1 ESC(Alld.) 69.

10. In all the aforesaid cases the
services of delinquents were terminated
on the ground that at the time of
recruitment
they
were
involved
in
criminal proceedings and they had made
wrong statements. In Qamrul Hoda
(Supra), petitioner was found to have
taken part in a students agitation against
increase in fees and was tried under
Sections
147/148/332/333/323/342/506/
336/ 427/307, I.P.C. The Court found that
no doubt petitioner did not give the
correct facts while filling the declaration
form, but human approach should be
adopted and that he has already been
punished for his fault, in the sense that his
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942 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
appointment as constable has been held
up for three years. In Regional Manager,
Bank of Baroda (Supra), the Court found
after acquiring knowledge of the criminal
prosecution the Bank had thought it fit to
await for the decision of the criminal
proceedings before taking action against
the respondent. The Supreme Court
further raised a caveat and held that the
decision will not be treated as precedent
in
future.
The
Division
Bench
in
Awadhesh Kumar Sharma (Supra) has
relied upon the decision of Qamrul Hoda's
case and that in Satish Kumar Shukla
(Supra) it was found that the petitioner
belongs to rural area, and had family
enmity and that the complaint resulted in
amicable settlement between the parties.
Petitioner really was not aware of the
substance of the complaint and pleaded
ignorance.

11. The question raised before this
Court is whether a person joining the
armed force of the Union, can be allowed
to continue in employment after making a
false declaration with regard to his
character
and
antecedent.
In
Delhi
Administration Vs. Sushil Kumar and
others 1997 SCC (L&S) 492 a similar
question was raised before Supreme
Court arising from judgment of Central
Administrative Tribunal. In this case the
admitted position was that the respondent
appeared for recruitment for police
service. He was found physically fit and
passed written test, interview and was
selected
subject
to
character
and
antecedent verification. His antecedents
on verification were not found to be
desirable and his selection was cancelled.
The Tribunal allowed the application on
the ground that since the respondent had
been discharged and/or acquitted from
offence punishable under section 304,324
and 34 I.P.C. he could not be denied right
of appointment to the post under the State.
The Supreme Court allowed the appeal,
with following observations:

"The question is whether the view
taken by the Tribunal is correct in law? It
is seen that verification of the character
and antecedents is one of the important
criteria to test whether the selected
candidate is suitable to a post under the
State. Though he was found physically fit,
passed the written test and interview and
was provisionally selected, on account of
his antecedent record, the important
criteria to test whether the selected
candidate is suitable to a post under the
appointing authority found it not desirable
to appoint a person of such record as a
Constable to the disciplined force. The
view taken by the appointing authority in
the background of the case cannot be said
to
be
unwarranted.
The
Tribunal,
therefore, was wholly unjustified in
giving the direction for reconsideration of
his case. Though he was discharged or
acquitted of the criminal offences, the
same has nothing to do with the question.
What would be relevant is the conduct or
character of the candidate to be appointed
to a service and not the actual result
thereof. If the actual result happened to be
in a particular way, the law will take care
of the consequences. The consideration
relevant to the case is of the antecedents
of the candidate. Appointing authority,
therefore, has rightly focussed this aspect
and found it not desirable to appoint him
to the service."

12.

In
Kendriya
Vidyalaya
Sangathan & Others Vs. Ram Ratan
Yadav (JT 2002 (2) SC 256) same view
was taken. Paragraph 8 of the judgment
is quoted as below:
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943
"8.
The
object
of
requiring
information in columns 12 and 13 of the
attestation
form
and
certification
thereafter by the candidate was to
ascertain and verify the character and
antecedents to judge his suitability to
continue in service. A candidate having
suppressed material information and/or
giving false information cannot claim
right to continue in service. The employer
having regard to the nature of the
employment and all other aspects had
discretion to terminate his services, which
is made expressly clear in para 9 of the
offer of appointment. The purpose of
seeking information as per columns 12
and 13 was not to find out either the
nature or gravity of the offence or the
result of a criminal case ultimately. The
information in the said columns was
sought with a view to judge the
character and antecedents of the
respondent to continue in service or
not. The High Court, in our view, has
failed to see this aspect of the matter. It
went wrong in saying that the criminal
case had been subsequently withdrawn
and that the offences, in which the
respondent was alleged to have been
involved, were also not of serious nature.
In the present case the respondent was to
serve as a physical education teacher in
Kendriya
Vidyalaya.
The
character,
conduct and antecedent of a teacher will
have some impact on the minds of the
students of impressionable age. The
appellants having considered all the
aspects passed the order of dismissal of
the respondent from service. The Tribunal
after due consideration rightly recorded a
finding of fact in upholding the order of
dismissal passed by the appellants. The
High Court was clearly in error in
upsetting the order of the Tribunal. The
High Court was again not right in taking
note of the withdrawal of the case by the
State government and that the case was
not of a serious nature to set aside the
order of the Tribunal on that ground as
well. The respondent accepted the offer of
appointment subject to the terms and
conditions mentioned therein with his
eyes wide open. Para 9 of the said
memorandum extracted above in clear
terms kept the respondent informed that
the suppression of any information may
lead to dismissal from service. In the
attestation form, the respondent has
certified that the information given by
him is correct and complete to the best of
his knowledge and belief, if he could not
understand the contents of column nos. 12
and 13, he could not certify so. Having
certified that the information given by
him is correct and complete, his version
cannot be accepted. The order of
termination of services clearly shows that
there has been due consideration of
various
aspects.
In
this
view,
the
argument of the learned counsel for the
respondent that as per para 9 of the
memorandum, the termination of service
was not automatic, cannot be accepted."

13. In the present case, petitioner
had willfully made false declaration. He
was subjected to proceeding of Summary
Security Force Court in which he denied
that he denied to the charge. His denial
was found to be false. The procedure
provided for Summary Security Force
Court was duly followed. He was, as
such, rightly dismissed from service.

For the aforesaid reasons, the writ
petition is dismissed.
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944 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.09.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No. 483 (Tax) of 1994

M/s Harihar Nath Agarwal
...Petitioner
Versus
Assistant Commissioner of Income Tax
and another

 ...Respondents

Counsel for the Petitioner:
Sri V. Gulati

Counsel for the Respondents:
Sri S. Srivastava, S.C.

Constitution
of
India,
Article
226Taxation Law-assessment by I.T.O.-set
aside by C.I.T. (Appeals)-no fresh orders
passed by I.T.O. within six monthsCentral Govt. shall refund amount so
deposited-alongwith
simple
interestfrom date of deposit, till date of refund.

Held- Para 11 & 12

In Hari Nandan Agarwal (HUF) Vs. ITO
(1986) 159 ITR 816 a Division Bench of
this Court held that where an order of
assessment is set aside and the matter
was restored to the Income Tax Officer
for passing a fresh order of assessment
the assessee is entitled to get a refund of
the
amount
deposited
by
him
in
pursuance of the assessment order. The
same view was taken by a Division
Bench of this Court in Purshottam Dayal
Varshney Vs. CIT (1974) 94 ITR 187 in
which it was held that in view of Section
240 of the Income Tax Act if the I.T.O.
does not grant the refund within a period
of six months from the date of appellate
order the Central Government shall pay
to the assessee simple interest at certain
rate per annum on the amount of refund
from the date immediately following the
expiry of the period of six months to the
date on which the refund is granted. The
period
of
six
months
should
be
calculated from the date of the appellate
order setting aside the assessment and
not from the date of the appellate order
setting aside the assessment and not
from the date on which the I.T.O. makes
a fresh assessment.

Following the aforesaid decisions this
petition is allowed. A mandamus as
prayed for is granted. The respondent
shall refund the amount prayed for with
interest at 12% per annum from the
date of deposit till the date of refund.
This refund must be made within two
months from today.
Case laws discussed:
(1986) 159 ITR 816
CIT (1974) 94 ITR 187

(Delivered by Hon'ble M. Katju, J.)

1. This writ petition has been filed
for a mandamus directing the respondents
to refund a sum of Rs. 3,23,226/- with
interest from 1.4.1986 till the date of
actual refund in relation to the assessment
year 1984-85.

Heard learned counsel for the parties.

2. The petitioner was assessed in the
status of A.O.P. and tax was charged at
the maximum marginal rate under the
Income Tax Act. True copy of the
assessment order is Annexure 1 to the
writ petition. Against this order the
petitioner filed an appeal which was
allowed by the C.I.T. (Appeals) which set
aside the order of the I.T.O. and directed
him to pass a fresh order. True copy of the
order of the C.I.T. (Appeals) is Annexure
2 to the writ petition. Against this order
the Department filed an appeal before the
Income Tax Appellate Tribunal which
dismissed the appeal. True copy of the