# Umesh Kumar Mishra v. Union of India, through Secretary, Ministry of Home affairs, New Delhi and others

- **Citation:** (2006) 3 ILRA 1211
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006
- **Case number:** Civil Misc. Writ Petition No. 16443 of 1998
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/umesh-kumar-mishra-v-union-of-india-through-secretary-ministry-of-home-affairs-40676
- **Pages:** 6

## Headnote

Constitution of India Art. 226-Service
law-Dismissal from Service-concealment
regarding pendency of Criminal case
during appointment-held-found guilty of
suppression of material fact. Subsequent
acquittal not immaterial.

Held: Para 10

In view of the above law on the subject I
do not find any merit in the submission
of the learned Counsel for the petitioner
that the order of dismissal of the
petitioner is liable to be quashed as the
petitioner has been acquitted in the
criminal case. It may be relevant to note
here that the petitioner has not been
dismissed form service on the ground
that a criminal case was pending against
him or he was involved in the same. In
fact his services were dispensed with
after holding a departmental inquiry in
which the petitioner was found guilty of
misconduct of deliberately suppressing
material information with regard to his
involvement in the criminal case while
getting himself enrolled.
Case law discussed:
1212 INDIAN LAW REPORT ALLAHABAD SERIES [2006
AIR 1992 SC-1555, 1995 (Suppl.) 4 SCC-100,
AIR 2003 SC-1709, JT 1999 (2) 456, 1997 (2)
UPLBEC-1201, 2005 (6) AWC-5470, 2006 (3)
ESC-1669, 2006 (1) ESC-615 (DB), 2006 (7)
ADJ-240 (DB), 1998 (1) UPLBEC-730
AIR 2003 SC-1462, AIR 1963 SC-779, 1972 (4)
SCC-618, AIR 2005 SC-1924

## Text

3All] Umesh Kumar Misra V. Union of India and others 1211
remand has directed the Consolidation
Officer
to
ascertain,
after
making
inspection himself, whether the proposed
''nali' passes through the area of the
disputed plot which is chak out or through
the area which is included in the
consolidation. The Deputy Director of
Consolidation has also taken care to direct
the Consolidation Officer to submit fresh
report after opportunity of hearing to all
affected parties.

17. However, in view of the
allegations made by the petitioners that
their pucca constructions are standing, the
Consolidation Officer while reconsidering
the case, shall keep in mind that in case he
submits a report afresh for providing
''chak nali' the same should be carved out
in such a manner so as not to disturb the
construction of the petitioners alleged to
be existing on the plot in dispute.

18. In view of the aforesaid
discussions, I am of the considered
opinion that the impugned judgment of
the Deputy Director of Consolidation
does not call for any interference from
this court. The Consolidation Officer shall
carry out the order of remand made by the
Deputy Director of Consolidation keeping
in mind the directions issued to him
hereinabove.

19. The writ petition accordingly,
fails and is dismissed.

However,
in
the
facts
and
circumstances, there shall be no order as
to costs.

 Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.09. 2006

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 16443 of 1998

Umesh Kumar Mishra
...Petitioner
Versus
Union
of
India,
through
Secretary,
Ministry of Home affairs, New Delhi and
others

 ...Respondents
Counsel for the Petitioner:
Sri R.K. Pandey
Sri S.K. Shukla

Counsel for the Respondents:
Sri K.C. Sinha
Sri Rajeev Joshi
S.C.

Constitution of India Art. 226-Service
law-Dismissal from Service-concealment
regarding pendency of Criminal case
during appointment-held-found guilty of
suppression of material fact. Subsequent
acquittal not immaterial.

Held: Para 10

In view of the above law on the subject I
do not find any merit in the submission
of the learned Counsel for the petitioner
that the order of dismissal of the
petitioner is liable to be quashed as the
petitioner has been acquitted in the
criminal case. It may be relevant to note
here that the petitioner has not been
dismissed form service on the ground
that a criminal case was pending against
him or he was involved in the same. In
fact his services were dispensed with
after holding a departmental inquiry in
which the petitioner was found guilty of
misconduct of deliberately suppressing
material information with regard to his
involvement in the criminal case while
getting himself enrolled.
Case law discussed:
1212 INDIAN LAW REPORT ALLAHABAD SERIES [2006
AIR 1992 SC-1555, 1995 (Suppl.) 4 SCC-100,
AIR 2003 SC-1709, JT 1999 (2) 456, 1997 (2)
UPLBEC-1201, 2005 (6) AWC-5470, 2006 (3)
ESC-1669, 2006 (1) ESC-615 (DB), 2006 (7)
ADJ-240 (DB), 1998 (1) UPLBEC-730
AIR 2003 SC-1462, AIR 1963 SC-779, 1972 (4)
SCC-618, AIR 2005 SC-1924

(Delivered by Hon'ble Pankaj Mithal, J.)

1.

The
petitioner
qualified
competitive test for selection as a
constable in C.R.P.F. and was sent for
training. After completion of training he
was posted in Assam. However, before
his services could be confirmed a
departmental
inquiry
was
instituted
against him vide office order dated
22.10.1997 on the ground that while
filling up his application form for service
he
has
deliberately
suppressed
information about his involvement in a
criminal case and as such has committed
an act of misconduct. The Inquiry Officer
after completing the inquiry submitted his
report
on
12.12.19967
holding
the
petitioner
guilty
of
the
charge
of
misconduct. Accordingly after issuing a
show cause notice to the petitioner an
order of dismissal from service was
passed by the commandant 82 Bn.
C.R.P.F. on 10.2.1998. The said order of
dismissal
from
service
has
been
challenged by the petitioner in the present
writ petition.

2. Heard Sri Shashikant Shukla,
learned counsel for the petitioner and Sri
K.C. Sinha, Assistant Solicitor General of
India, for the respondents.

3. Learned counsel for the petitioner
has submitted that the criminal case in
respect of which information was not
given by the petitioner has finally been
decided in his favour and he has been
acquitted in the criminal case vide
judgment and order dated 27.7.2005
(Annexure R.A.- 1 to this petition).
Therefore, since the petitioner has been
acquitted in the criminal case there is not
justification
to
maintain
the
order
dismissing the petitioner from service and
the petitioner is liable to be reinstated.

"Fraud unravels everything" is one of
the basic principles of law. In other words
fraud avoids all judicial acts.

4. In Smt. Shrisht Dhawan Vs.
Shaw Bros. AIR 1992 SC 1555, it has
been held as under:

"Fraud and collusion vitiate even the
most solemn proceedings in any civilized
system of jurisprudence".

5. The Hon'ble Supreme Court by its
various pronouncement has provided that
dishonesty should not permitted to bear
the fruit and benefit to the persons who
played fraud or made misrepresentation
and the Court should not perpetuate the
fraud by entertaining the petitions on
behalf of such persons.

6. In Union of India & Ors. Vs. M.
Bhaskaran (1995) (Suppl.) 4 SCC 100,
the Hon'ble Supreme Court observed as
under:

"If
by
committing
fraud
any
employment is obtained, the same cannot
be permitted to be countenanced by a
Court of Law as the employment secured
by fraud renders it voidable at the option
of the employer".

7. It is also a settled principle that no
person can claim any right arising out of
his wrong doing i.e. a person having done
3All] Umesh Kumar Misra V. Union of India and others 1213
wrong, cannot take advantage of his own
wrong.

8.

In
Kendriya
Vidyalaya
Sangathan V. Ram Ratan Yadav, AIR
2003 SC 1709; and A.P. Public Service
Commission
V.
Koneti
Venkateswarulu, AIR 2005 SC 4292,
the Hon'ble Supreme Court examined a
similar case, wherein, the employment
had been obtained by suppressing the
material fact that criminal proceedings
were pending against him at the time of
appointment. The Court rejected the plea
taken by the employee that the from was
printed in English and he did not have
good knowledge of that, and therefore,
could not understand as what information
was sought. The Apex Court held that as
he did not furnish the information
correctly at the time of filling up the
Form, the subsequent withdrawal of the
criminal case registered against him or the
nature of offences were immaterial. The
requirement of filling column Nos. 12 and
13 of the Attestation Form was for the
purpose of verification of the character
and antecedents of the employee as on the
date of filling in the Attestation Form.
Suppression of material information and
making a false statement has a clear
bearing on the character and antecedent of
the
employee
in
relation
to
his
continuance in service.

9. The Hon'ble Apex Court in the
case of Captain P. Paul Anthoney Vs.
Bharat Gold Mines & Anr. JT 1999 (2)
SC 456 has held that proceedings in a
criminal case and the departmental
proceedings can proceed simultaneously
with a little exception. The basis of this
proposition is that the proceedings in a
criminal case and the departmental
proceedings operate in distinct and
different jurisdictional areas. In the
departmental proceedings, where the
charge relating to misconduct is being
investigated, the factors operating in the
mind of disciplinary authority may be
many such as enforcement of discipline or
to investigate the level of integrity of the
delinquent employee. The standard of
proof
required
in
departmental
proceedings is also different then required
in a criminal case. The little exception
may
be
where
the
departmental
proceedings and the criminal case are
based on the same set of facts and the
evidence and the proceedings are virtually
common
without
there
being
any
variance.

10. In view of the above law on the
subject I do not find any merit in the
submission of the learned Counsel for the
petitioner that the order of dismissal of
the petitioner is liable to be quashed as the
petitioner has been acquitted in the
criminal case. It may be relevant to note
here that the petitioner has not been
dismissed form service on the ground that
a criminal case was pending against him
or he was involved in the same. In fact his
services
were
dispensed
with
after
holding a departmental inquiry in which
the petitioner was found guilty of
misconduct of deliberately suppressing
material information with regard to his
involvement in the criminal case while
getting himself enrolled.

11. Learned Counsel for the
petitioner is not in a position to point out
any defect or error in the procedure of the
disciplinary inquiry nor it is the case of
the petitioner that the findings recorded in
the disciplinary inquiry are perverse. In
such circumstances, the order of dismissal
of the petitioner cannot be faulted with.
1214 INDIAN LAW REPORT ALLAHABAD SERIES [2006
12. Sri Shukla, learned counsel for
the petitioner in support of his contention
has placed reliance upon a decision of the
learned Single Judge of the Allahabad
High Court reported in Qamrul Huda
Vs. Chief Security Commissioner 1997
(2) UPLBEC 1201. He contends that
mere concealment of true facts while
making declaration in the form is not
sufficient
to
order
the
petitioner's
dismissal from service. The case law cited
above is distinguishable on facts and is of
no help of the petitioner in as much as in
the said case the candidate was refused
from being sent to the training on account
of his involvement in criminal case which
fact was suppressed by him, while making
the declaration. The order refusing to send
the candidate for training was passed in a
summery manner before the recruitment
of the candidate in services and as such
there was no departmental inquiry or
finding of any disciplinary authority with
regard to misconduct of the petitioner. In
the present case the petitioner after being
inducted
in
service
but
before
confirmation
was
subjected
to
departmental inquiry and on being found
guilty of misconduct was dismissed from
service.

13. Sri Shukla has next relied upon a
decision
in
Santosh
Chaube
Vs.
Inspector General of Police & Ors.
2005 (6) AWC 5470. In the said case the
services of a constable of C.R.P.F. were
terminated
for
concealing
material
information regarding his involvement in
a criminal case. The High Court in writ
jurisdiction set aside the termination as
the order was passed in violation of the
principles of natural justice without
issuing show cause notice or affording
any opportunity of hearing to the
employee. The facts of the above case are
entirely different as in the present case the
order of dismissal has been passed after
full-fledged disciplinary inquiry holding
the petitioner guilty of misconduct.
Therefore, the petitioner does not stand to
any benefit on the basis of the above
ruling.

14. On the other hand Sri K.C.
Sinha, Additional Solicitor General has
placed very heavy reliance upon a
division bench judgment of the Allahabad
High Court reported in Ramesh Prasad
Patel Vs. Union of India & Ors. 2006
(3) ESC 1669. The facts of this case
squarely applies to the present case. In
this case also the delinquent employee
had obtained employment in Army by
furnishing false declaration at the time of
his enrollment, to the effect that no
criminal case was pending against him
and on verification it was found to be
incorrect and as such was dismissed from
service. The Division Bench of this Court
considering the entire case law on the
subject held that as the petitioner has
suppressed material information and had
made a false statement in seeking the
employment, he cannot be permitted to
reap the fruits of his own mistakes and as
such his dismissal from service was
upheld. The High Court further held that
in such cases of misrepresentation or
making a false declaration, amounts to
playing
fraud
and
as
such
even
opportunity of hearing is not required to
be given and it would be a futile exercise
in view of the admitted fact that the
declaration was false. The above view is
fully supported by two other division
bench decisions of this Court in case of
Ashok Kumar Vs. DIG, C.R.P.F. &
Ors. 2006 (1) ESC 615 (Alld.) (DB) and
Arvind Kumar Vs. State of U.P. & Ors.
2006 (7) ADJ 241 (DB) wherein in
3All] Umesh Kumar Misra V. Union of India and others 1215
similar
circumstances
the
employee,
guilty of suppression of material fact and
furnishing false information was not
given any relief even though he was
acquitted in the criminal case and the
order of dismissal from service was
maintained. Therefore, the impugned
order of dismissal dated 10.2.1998 calls
for no interference under Article 226 of
the Constitution of India.

15. Learned counsel for the
petitioner next submitted that the order of
punishment of dismissal from services is
too harsh and is disproportionate to the
gravity of the misconduct found proved
against the petitioner. In support of this he
has placed reliance in a decision of the
Allahabad High Court reported in Ram
Bechan
Yadav
Vs.
Commandant,
P.A.C. 20th Bn. Azamgarh 1998 (1)
UPLBEC 730.

16. The above submission is not
tenable in as much as in the present case
the order of dismissal from service was
passed against the petitioner after hearing
him on the quantum of punishment also.
The authority after considering the gravity
and misconduct of the petitioner, and the
fact that he had not been confirmed in
service has come to the conclusion that he
is not a fit person to be retained in service.
The appointing or disciplinary authority
in such circumstances is required to
consider various factors such as the
enforcement
of
discipline,
level
of
integrity of the delinquent employee, the
nature of misconduct and, therefore, if the
authority
finds
that
the
delinquent
employee is not a person fit enough to be
kept in service, the punishment of
dismissal
cannot
be
said
to
be
disproportionate to the charge more
particularly when the employee has not
been confirmed and is in temporary
service.

17. The Apex Court in case of
Regional Manager, UPSRTC Vs. Hoti
Lal AIR 2003 SC 1462 following its
earlier decision State of Orissa Vs.
Bidyabhushan Mohapatra, AIR 1963
SC 779 and Union of India Vs. Sardar
Bhadur AIR (1972) 4 SCC 618 has held
that the High Court, under Article 226 of
the Constitution of India has no power to
review the penalty imposed and to
substitute its own punishment and the
order of the disciplinary authority is to be
treated as final unless it shocks the very
conscience of the Court. A similar view
has been expressed in Madhya Pradesh
Electricity Board Vs. Jagdish Chandra
Sharma AIR 2005 SC 1924. In the instant
case the petitioner after due inquiry has
been found guilty of misconduct and was
not even confirmed in service, therefore,
the punishment of dismissal is in no way
disproportionate to the charge proved. It
is in larger public interest to weed out bad
elements at the very beginning instead of
confirming them on the post. Therefore,
the second submission of the learned
counsel for the petitioner also fails.

In view of the above discussion, the
writ petition lacks merits and is hereby
dismissed.
---------
1216 INDIAN LAW REPORT ALLAHABAD SERIES [2006
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2006

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 25601 of 2003

Om Veer Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri J.J. Munir

Counsel for the Respondents:
Sri Anil Bhushan
S.C.

Constitution
of
India
Art.
14,
16
readwith
U.P.
Public
Service
(Reservation for S.C./S.T. and Other
Backward
Classes)
Amendment
Act,
2002-Section 3 (1)-Reservation Quotaout of 13 sanctioned post of class 4th
employee-6 persons already working-3
as Backward candidate and 3 from
S.C./S.T. candidates-while under SC/ST
Quota
only
2
persons
could
be
appointed-even
then
the
impugned
direction of D.I.O.S. to fill up the fresh 2
vacancies
from
reserved
categoryexceed 50%- held illegal-consequential
direction issued.

Held: Para 8

Coming to the facts of the case in hand,
it is apparent that out of the total
sanctioned strength of 13 in class IV
cadre, 6 are already occupied by OBCs
though as per 27% reservation, only 3
vacancies could have been filled from the
OBC. Similarly 3 posts are occupied by
the candidates belonging to scheduled
castes, though their reservation, being
21%, only 2 appointments could have
been
made
from
scheduled
caste
candidates.
Thus
the
cadre
already
having candidates belonging to reserve
category beyond the prescribed quota, it
cannot be said that the two vacancies
available could be filled in by applying
reservation.
Case law discussed:
AIR 1993 SC-477
1992 (Supp.) 3 SCC-217
AIR 1995 SC-1371
1995 (2) SCC-745
1995 (6) SCC-684
1999 (7) SCC-209
1996 (2) SCC-715

civil Appeal No.2903 of 2001 decided on
27.7.06

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri J.J. Munir, learned
counsel for the petitioner, Sri Anil
Bhushan,
the
learned
counsel
for
respondent Nos. 3 and 4 and the learned
Standing
Counsel
appearing
for
respondent Nos. 1 and 2.

2. A counter affidavit has been filed
on behalf of respondent nos. 3 and 4 but
no reply has been filed on behalf of
respondent nos. 1 and 2 despite repeated
opportunity is granted. Even a stop order
was passed on 6.10.2004 permitting six
weeks and no more time to respondent
nos. 1 and 2 to file counter affidavit. Still
the same has not been filed. This Court
also granted indulgence on 30.8.2006 to
the learned standing counsel to seek
instructions
but
today,
the
learned
standing
counsel
representing
the
respondent nos. 1 and 2 has stated at the
bar that despite information, he has not
received any instruction. The learned
counsel for the parties however agreed
that the writ petition may be heard and
decided finally on the basis of the
material available on record. In the
circumstances, with the consent of the