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Ex. Sep. Devender Singh v. Union Of India & Ors.

Armed Forces Tribunal

May 18, 2016

Judgment

Subsequent
References

CaseIQ

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Concise Analytical Summary of the Opinion dated 18.05.2016

Factual and Procedural Background

The petitioner, No. 3005359N Sep Devender Singh, was enrolled on 15 September 2002 in the Rajput Regiment of the Indian Army against the Unit Headquarters Quota, claiming to be the son (or later the adopted son) of Ex. Sep. Chandra Pal Singh. The petitioner was dismissed from Army service effective 25 February 2012 under Section 20(3) of the Army Act, 1950 read with Rule 17 of the Army Rules, 1954, pursuant to findings that he had obtained enrolment by fraudulent means.

By way of this Original Application under Section 14 of the Armed Forces Tribunal Act, 2007, the petitioner sought (i) quashing of the order dated 03 February 2012 dismissing him and the consequent discharge certificate dated 25 February 2012, and (ii) directions to reinstate him in service with all consequential benefits. The respondents contested the challenge, relying on the results of administrative investigations and departmental proceedings that concluded the petitioner was not the biological or a validly adopted son of Ex. Sep. Chandra Pal Singh and had secured enrolment through a false affidavit and other fraudulent means.

Legal Issues Presented

Whether the order dated 03 February 2012 dismissing the petitioner from Army service (and the consequent discharge dated 25 February 2012) was unlawful, and accordingly liable to be quashed.
Whether the petitioner is entitled to reinstatement in service with consequential benefits, in light of the findings that he allegedly procured enrolment by submitting a false affidavit and by claiming to be a son or an adopted son of Ex. Sep. Chandra Pal Singh.

Arguments of the Parties

Petitioner's Arguments

The petitioner asserted he was the adopted son of Ex. Sep. Chandra Pal Singh and had been enrolled as such.
He relied on his High School and Intermediate examination certificates (Allahabad Board), which reflected his father's name as Chandra Pal Singh.
He pointed to pre-enrolment verification by the then Village Pradhan (Smt. Ritu Singh) and post-enrolment police/CID verification in the presence of Ram Babu Singh (elder son of Ex. Sep. Chandra Pal Singh).
The petitioner contended the complaints against him were false and based on inimical statements; he also noted that Ex. Sep. Chandra Pal Singh was in poor health and died in 2011, and that earlier record evidence had suggested the complaint might be a sequel to a quarrel.

Respondents' Arguments

Records show that Ex. Sep. Chandra Pal Singh was discharged in 1980 and that an affidavit was filed to publish a part II order indicating a son born in 1985, five years after discharge; further verification from the District Magistrate had earlier stated Devender Singh was the real son of Ex. Sep. Chandra Pal Singh.
Subsequent RTI-driven inquiries and re-investigation ordered by HQ UB Area concluded the petitioner was not the real son, no adoption deed/proof was in service documents, and the petitioner had enrolled by fraudulent means using a fake affidavit.
Rajput Regimental Centre, Records, and IHQ of MoD (Army) recommended disciplinary action and confirmed the petitioner had obtained enrolment by fraudulent means, resulting in initiation of disciplinary proceedings culminating in dismissal under Section 20 read with Rule 17.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Andhra Financial Corporation vs. Gar Re-Rolling Mills, AIR 1994, SC 2151	Principle that courts exercising equitable or writ jurisdiction should not promote or validate the perpetration of legal fraud and must act to promote good faith.	The Court relied on this principle to support refusal to set aside the dismissal where the petitioner had obtained enrolment by fraudulent means; the court held it should not validate an action unlawful at inception.
State of Maharashtra vs. Prabhu, 1994 (2) SCC 481	Same equitable principle: a writ/equitable jurisdiction should not be used to perpetuate fraud or unjust enrichment based on unlawful acts at inception.	The Court invoked this authority to underline that the OA could not be allowed where it would effectively condone fraudulent enrolment and thereby frustrate promotion of good faith.

Court's Reasoning and Analysis

The Tribunal examined the documentary record and the sequence of administrative steps that led to dismissal. The court's analysis proceeded by applying documentary comparison, statutory adoption law, and the administrative inquiry findings:

Documentary inconsistencies: The enrolment form initially recorded the petitioner as the real (biological) son of Ex. Sep. Chandra Pal Singh, while in a later statement (11 January 2011) the petitioner claimed to be the legally adopted son. The voter list extract identified the petitioner as Ram Kumar, son of Shiv Sharan Singh, not as son of Ex. Sep. Chandra Pal Singh.
Investigative findings: Re-investigation conducted after directions from HQ UB Area concluded that (i) the petitioner was not the real son of Ex. Sep. Chandra Pal Singh, (ii) no proof of adoption was found in the service records of Ex. Sep. Chandra Pal Singh, and (iii) the petitioner had been enrolled by producing a false affidavit and thereby adopting fraudulent means to secure entry against the Unit HQ quota.
Validity of adoption: The allegedly executed adoption deed (dated 26-02-1999) was assessed against statutory requirements in Chapter II of the Hindu Adoption & Maintenance Act, 1956. The court specifically noted Section 11(1), which requires that the adoptive parents must not have a living son at the time of adoption; because Ex. Sep. Chandra Pal Singh already had four sons, the purported adoption did not satisfy the statutory conditions and was therefore invalid.
Credibility and source of complaint: The court observed that the adoptive father himself (Ex. Sep. Chandra Pal Singh) ultimately denied the factum of adoption and brought the fraud to light, undermining the petitioner's account.
Application of equitable jurisprudence: Relying on Supreme Court authorities cited in the order, the Tribunal emphasized that courts should not use equitable jurisdiction to validate or perpetuate fraud and must refuse relief that would validate an action unlawful at its inception.
Relief appropriateness: Given the overwhelming documentary and investigatory evidence of fraudulent enrolment, the Tribunal concluded the Competent Authority rightly dismissed the petitioner. The Tribunal additionally opined that authorities "ought to have issued directions to launch criminal prosecution" against the petitioner and others involved, though the Tribunal did not itself order criminal prosecution in this judgment.

Holding and Implications

Holding: The Original Application is dismissed as devoid of merit and substance.

Consequential Order: The OA is dismissed with exemplary costs of Rs. 50,000 to be paid by the petitioner to the respondents within three months.

Implications:

The departmental dismissal of the petitioner dated 25 February 2012 stands; the petitioner is not reinstated and is not entitled to consequential benefits under the challenged order.
The Tribunal expressly found that the enrolment was obtained by fraudulent means and concluded that dismissal was justified; it also observed that criminal proceedings ought to have been initiated by the authorities (the Tribunal did not itself initiate such proceedings in this order).
The decision applies the established principle that courts exercising equitable jurisdiction should not facilitate or validate fraud. The opinion does not purport to lay down any novel legal precedent beyond applying these existing authorities to the facts of this case.

Show all summary ...

18.05.2016 Order dismissing the 0A pronounced, signed and dated. (R.C. MISHRA) MEMBER (J) (S.K. SINGH) COURT No.2, ARMED FORCES TRIBUNAL PRINCIPAL BENCH, NEW DELHI elm Ex Sep. Devender Singh ..... Petitioner Versus UOI & Ors ...Respondents For petitioner : Mr Siya Ram, Advocate For respondents : Ms Barkha Babbar, Advocate CORAM: HONBLE MR. JUSTICE R.C. MISHRA, MEMBER HONBLE LT GEN S.K. SINGH, MEMBER O R D E R 18.05.2016 The petitioner, by way of this OA, under Section 14 of the Armed Forces Tribunal Act, 2007, has prayed for:

(i) Quashing / setting aside of the order dated 03 Feb 2012 passed by Commander, 114 INFANTARY BRAGADE dismissing him from Army Service and consequent discharge certificate dated 25 Feb 2012 issued by Commanding Officer

16 RAJPUT.

(ii) Directions requiring the respondents to reinstate him in the service with all consequential benefits.

2. On 15 September 2002, the petitioner was enrolled in the Rajput Regiment of the Indian Army against Unit Headquarters Quota (for brevity 'HQs Quota) as son of Ex Sep Chandra Pal Singh, a resident of Village Jijota Bujurg, FRO Rudayan, Tahsil Kayamganj, District Farrukhabad (U.P.). He was dismissed from Army Service, + OA 31/2014 under Section 20(3) of the Army Act 1950, read with Rule 17 of the Army Rules 1954, w.e.f. 25 Feb 2012.

3. The petitioner has termed his dismissal as wholly illegal, unjust and arbitrary. According to him: - (a) He is the adopted son of his uncle Ex. Sep. Chandra Pal Singh, who had sewed with the Rajput Regiment. (b) In the certificates of having passed High School and Intermediate examination respectively, conducted by the Allahabad Board of Education, name of his father had been clearly reflected as Chandra Pal Singh only. Accordingly, he was enrolled in the Army as adopted son of Ex. Sep. Chandra Pal Singh. (c) His ore-enrolment documents were veried by the then Village Pradhan Smt. Ritu Singh, whereas post enrolment verification was done by Police cum CID in the presence of Ram Babu Singh, the elder son of Ex. Sep Chandra Pal Singh. (cl) After a period of nearly 8 years, some false complaints were made against him. The outcome of the investigation was based on false statement made by Ex. Sep, Chandra Pal Singh and other interested persons on inimical terms with him. (e) At the time when Ex. Sep. Chandra Pal Singh made the complaint and gave statement in support thereof, he was not keeping good health and had thereafter died in 2011 due to heart failure. Before that, the Records Rajput Regiment, vide letter No. 2961188NVel-lIl/NE, dated 29.01.2010 had already OA 31/2014 expressed the opinion that the complaint was a sequel to quarrel between him and Ex. Sept Chandra Pal Singh. 4i While submitting that the petitioner's dismissal from service was perfectly valid and justified the respondents have pointed out that: (a) On 15 Sep.2009, Ex Sep Chandra Pal Singh submitted an application, under RTl Act 2005 for supply 0f copy of the affidavit submitted by the petitioner at the time of his enrolment in the Army as his son. In response, vide letter dated 200102009, Records of the Rajput Regiment forwarded a copy of the affidavit to Ex. Sep. Chandra Pal Singh. (b) On 09 Nov 2009, Ex Sep Chandra Pal Singh made a complaint to the effect that he was not the father of the petitioner, who, according to him, was the son of Shiv Sharan Singh. Thereafter, Ex Sep Chandra Pal Singh sent another complaint which was received through HQ UB Area vide their letter dated 11 Aug. 2010. (c) After initial investigation, vide letter dated 14 Sept 2010, along with the record of the case the under-mentioned ndings were placed for consideration before Commandant, RRC/OIC Records:-

(i) No,2961188Y Ex.Sep. Chandra Pal Singh was enrolled in the Rajput Regiment on 30 Dec 1965 and was discharged from Army on completion of terms of engagement on 31 Dec 1980

(ii) The individual had given an affidavit on 16 July 2002 for publishing of a part ll order for the birth of his _ OA 31/2014 son (in NE series), who was born on 15 May 1985, i.e. five years after the individual was discharged from the Army.

(iii) Verification of the same was also received from District Magistrate, Farrukhabad, UP vide their letter No.851lJAS/Dsi-V/Character Att/200203 dated 31 Jan 2003 stating that No. 3005359N Sep. Devender Singh is the real son of No. 2961188Y Ex. Sep Chandra Pal Singh. (d) The Commandant RRC/OIC Records, accordingly, recommended to treat the case as closed. However, HQ UB Area (DV) after perusal of the documents vide their letter No. 180108/LSA/A(DV) dated 09 Dec 2010 directed Records of the Rajput Regiment to carry out a re-investigation to ascertain the truth by approaching civil/army authorities and fonnlard the report to their HQ by 30 Dec 2010. (e) The case was, accordingly, re-investigated in detail and the corresponding report was forwarded to HQ UB Area vide letter No. 3005359/SR/Wel-1INE dated 18 Jan 2011 (Annexure R-5). It inter alia contained findings that (i) the petitioner was not the real son of Ex. Sep. Chandra Pal Singh; (ii) no deed/proof of the adoption was found recorded in the service documents of Ex. Sep Chander Pal Singh and (iii) the petitioner got himself enrolled in the Army by adopting unfair means. in other words, the investigation carried out by Rajput Regimental Centre revealed that the complaint was true It was found that despite the fact that he was son of a civilian, the petitioner, by submitting a false affidavit and pretending himself to be son of > OA 31/2014 ex-armyman viz. Ex Sep Chandra Pal Singh was able to get himself enrolled in the Army against the Unit HQ Quota. (f) Vide letter dated 31Jan 2011(Annexure R-6) Rajput Regiment Centre, being the enrolling agency forwarded their comments on the subject issue to IHQ of Mod, Additional Directorate General of Recruiting lRtg 5(OR)(E) with reference to their Letter No 64714/CENT/Rtg 5(OR) (E) dated 28 Dec 2010. ln the recommendations attached to this letter it was mentioned that it had been proved beyond doubt that the petitioner had got himself enrolled in the Army on 15.09.2002 using fraudulent means. lt was recommended that disciplinan/ action be initiated against the petitioner under the relevant provisions of the Army Act. (g) lHQ of Mod (Army), Additional Directorate General of Recruiting/Rt95(OR)(E) vide their letter No. 6471/CENTIRtg 5(OR)(E) dated 14" Feb, 2011 (Annexure R-7) intimated Records of the Rajput Regiment Centre that the petitioner had been able to get himself enrolled in the Army on 15 Sep 2002 by adopting fraudulent means and this fact had been confirmed after a thorough investigation. in view of this, the OIC Records was requested to initiate disciplinary action as per policy in vogue against the petitioner on priority. (h) Records of the Rajput Regiment vide letter dated 05 May 2011 (Annexure Ra8) intimated to 16 RAJPUT about the direction of IHQ of MoD (Army), Additional Directorate General OA 31/2014 of Recruiting/(Rtg 5 (OR) (E) issued vide their letter No.3005359/SR/16R/Doc-ill dated 27 Feb 2011. Further, Records of the Rajput Regiment also forwarded, alongwith other documents, the direction of the GOC, UB area on the subject issue and directed to initiate disciplinary action against the petitioner vide letter dated 5 May 2011.

(i) Subsequently, 16 RAJPUT forwarded subject case to its formation i.e. HQ 114 Inf. Bde. for necessary action/ direction vide letter dated 12 Sep 2011. In turn, HQ 114 Inf. Bde. issued a Show Cause Notice to the Petitioner dated 01.12.2011 in which it was mentioned that apparently he had forged a document for the purpose of enrolment in the Army and thereby resorted to fraud. Therefore. he was asked to show causes as to why he should not he dismissed from the Army Service in accordance with Sec.20 of the Army Act read with Rule 17 of the Army Rules. A copy of the Show case notice dated 01.12.2011 (Annexure A-4) was received from the petitioner. lt was forwarded to 114 Inf Bde vide 16 RAJF'UT letter No. 1605/2/A dated 15 Dec 2011. The direction of Commander,

114 Inf Bde dated 03 Feb 2012 which were issued after perusing the reply to the Show Cause Notice read as follows: 1.2) Having gone through the complete case including the recommendations of the Commanding Officer, 16 RAJPUT and examining evidence on record with due deliberation, it has been proved beyond doubt that No. 3005359 N Sep Devender Singh of 16 RAJPUT is not the son of No. 2961188Y Ex. Sep. Chander Pal Singh and ;6 _> 0A 31/2014 adopted fraudulent means to get himself enrolled in the Army in the Rajput Regiment Centre on 15 Sep 2002 by producing a fake affidavit and claiming himself to be the son of Ex. Sep Chander Pal Singh resident of village Jijota, Bujurg, Distt- Farrukhabad (UP) whereas he is actually Mr. Ram Kumar son of Shiv Saran Singh of the same village.

3. Apropos, l direct that No. 3005359N Sep Devender Singh of 16 RAJPUT be dismissed from service with immediate effect under the provisions of Sub Section (3) of Army Act. Sec. 20 read in conjunction with Army Rules 17." A copy of direction issued by the Commander of

114 Inf. Bde. dated 03.02.2012 is annexed as Annexure R-9 to the Counter Reply Affidavit. (j) On receipt of the directions of the Commander of 114 Inf. Bde., the Petitioner was dismissed from service on 25 Feb 2012 vide 16 RAJPUT Part || Order N0. dated 25 Feb 2012 (Annexure R-10).

5. We have heard learned Counsel for the parties at length and have gone through the relevant records.

6. A bare perusal of the enrolment form would reveal that the petitioner had declared himself to be the real son ie. borne to the wife of EX. Sep. Chandra Pal Singh whereas in his statement dated

11 January 2011, he had claimed to be legally adopted son of Ex Sep Chandra Pal Singh. The service record of Ex. Sep Chandra Pal Singh further revealed that he already had four sons namely Ram Babu, Ravendra Singh, Bijendra Singh & Jaivindra Singh. However in order _> OA 31/2014 to secure enrolment in the Army against quota reserved for sons of Army personnel, the petitioner appears to have persuaded Ex. Sep. Chandra Pal Singh to submit an application to the Records Office for publication of corresponding part ll Order with an supportive affidavit to the effect that nearly five years after his discharge from the service his wife had given birth to the petitioner on 15.05.1985. However, as reflected in the corresponding extract of voter list the real name of petitioner is Ram Kumar Singh and he is son of Shiv Sharan Singh and not of Ex. Sep. Chandra Pal Singh. Further, apparently Shiv Sharan Singh and Chandra Pal Singh are also not shown as brothers. Name of Sep. Chandra Pal Singh's father has been shown as Harivansh Singh whereas Shiv Sharan Singh is described as son of Neta Singh.

7. Faced with such a situation during investigation only, the petitioner made yet another attempt to defraud the organisation by claiming to be an adopted son of his so called uncle Ex. Sep. Chandra Pal Singh. Corresponding adoption deed said to have been finally executed by his parents and Ex. Sep. Chandra Pal Singh and his wife namely Chhote Bitiya on 26-02-1999 was also placed on record. However, while doing so, he completely over looked the legal requirements of a valid adoption as given in Chapter 2 of the Hindu Adoption & Maintenance Act. 1956. In this context, particular reference may be made to sub section (i) of section 11 that reads as follows: Section 11. Other conditions for a valid adoption- In eve/y adoption, the following conditions must be complied with, OA 31/2014

(i)lf any adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, sons son or sons sons son (Whether by legitimate blood relationship or by adoption) living at the time of adoption.

8. Accordingly, the so called adoption was also not a valid one as the adoptive parents were already having as many as four sons in their wedlock.

9. Moreover, the fact of the matter is that it was the adoptive father viz Ex. Sep. Chandra Pal Singh who had brought the systematic fraud to light by denying the factum of adoption.

10. In the light of the overwhelming evidence placed on record the Competent Authority after ascertaining the truth had rightly dismissed the petitioner from service. In our opinion, he ought to have issued directions to launch criminal prosecution of the petitioner and all other persons involved in a systematic fraud leading to petitioners illegal enrolment against the reserved quota and thereby denying the opportunity to a genuine candidate.

11. The Supreme Court in Andhra Financial Corporation vs. Gar Re-Rolling Mills AIR 1994, SC 2151 and State of Maharashtra vs. Prabhu 1994(2) SCC 481 has pointed out that Writ Court while exercising its equitable jurisdiction should not act as to promote perpetration of legal fraud as the Courts are obliged to do justice by OA 31/2014 promotion of good faith. In other words, the Court should not validate any action which is not lawful at inception.

12. For the reasons stated above, the OA deserves to be dismissed as devoid of merit or substance with exemplary costs.

13. In the result, the 0A is dismissed with an exemplary cost of Rs. 50,000l- to be paid by the petitioner to the respondents within 03 months. (R.C. MISHRA) MEMBER (J) (S.K. SINGH) MEMBER (A) New Delhi 18.05.2016/18]