JUDGMENT Mukundakam Sharma, J.
1. This petition is filed by the petitioner against the order passed by the respondents on 22.6.1992 dismissing the petitioner from service under the provisions of Section 44 of the Army Act. The appeal filed as against the aforesaid order of dismissal was also rejected by the respondents and, therefore, the said order is also under challenge in this writ petition.
2. The petitioner was enrolled in the Indian Army on 1.12.1990. At the time of his enrolment, an enrolment form was filled up by the respondents on the basis of the reply submitted by the petitioner. Question No.8 of the aforesaid enrolment form pertains to a question as to whether there was any case pending against the petitioner. At the time of filling up of the said form on the basis of the reply furnished by the petitioner, 'no' was recorded as against the said question No.8. Upon verification made by the respondents, the police sent an adverse report against the petitioner stating that the petitioner was involved in a criminal case and charged with offence under Section 326/34 IPC pending in the Court of Additional Chief Judicial Magistrate.
3. On receipt of the aforesaid information, the respondent No.3 issued a charge-sheet to the petitioner for giving wrong answer and information at the time of his enrolment. An order was also passed for recording summary of evidence against the petitioner. Pursuant to the said order, summary of evidence was recorded on 2.5.1992, which was followed by additional summary of evidence on 22.5.1992. Thereafter a Summary Court Martial was convened and the petitioner was tried in the said Summary Court Martial. The petitioner was also provided with assistance of a friend of the accused. The petitioner, however, pleaded guilty to the charge framed against him and accordingly the Summary Court Martial found the petitioner guilty and sentenced him to suffer rigorous imprisonment for three months in civil prison and also ordered for his dismissal from service. Thereafter the petitioner was sent to the civil prison and he was dismissed from service. The petitioner has already undergone the rigorous imprisonment for three months. As against the aforesaid order of sentence, the petitioner filed an appeal before the authority which was considered and was rejected.
4. The counsel appearing for the petitioner, during the course of his submissions, submitted that the petitioner after his enrolment and police verification was even attested by the respondents and, therefore, the respondents could not have proceeded and prepared a charge-sheet against the petitioner as the information relating to the allegations contained in the charge-sheet were received by the respondents even prior to attestation of the petitioner. It was also submitted that although the criminal case was pending against the petitioner on the date of enrolment and also on the date of verification, yet the civil authorities had given a report in favor of the petitioner stating that he is fit for service. It is further submitted that even the Chief Record Officer after examining the case declared the petitioner fit for enrolment on 31.7.1991 and ordered for attestation of the petitioner and, therefore, there could not have been an allegation that the petitioner suppressed material information at the time of his enrolment as the said suppression stood condoned by the various acts of the respondents themselves. It was also submitted that the petitioner arrayed respondent No.3, namely, the Commanding Officer, as a party to the writ petition by name and alleged malice against him but yet the respondent No. 3 did not file any counter affidavit. It is argued that, therefore, the said malice is established and on that basis itself the order of dismissal is required to be set aside and quashed. It was also submitted by the counsel for the petitioner that although the petitioner was convicted for five years by the trial court in respect of the criminal case which was pending against him by judgment and order dated 23.2.1998, the appellate court by its judgment and order dated 10.1.2001 put the petitioner on probation for two years as the petitioner had already undergone imprisonment for three years and released the petitioner under Probation of Offenders Act.
5. We have also heard the counsel appearing for the respondents, who submitted that the petitioner suppressed material information at the time of his enrolment for which a charge was drawn up against the petitioner. It was submitted that the trial was conducted in accordance with law wherein the petitioner pleaded guilty to the charge and, therefore, the action taken by the respondents is legal and valid.
6. It is not disputed that at the time of the enrolment of the petitioner, a criminal case was pending against him. In this criminal case, the petitioner was convicted and sentenced to rigorous imprisonment for five years vide judgment and order passed by the trial court on 23.2.1998. The order of the appellate court is not placed on record but it is stated by the counsel appearing for the petitioner that the appellate court vide its judgment dated 10.1.2001 put the petitioner on probation for two years as he had already undergone three years of imprisonment. The aforesaid information that the criminal case was pending against him was required to be disclosed by the petitioner at the time of his enrolment. The petitioner gave a wrong information to the respondents as against question No. 8 and suppressed material facts. The factum of pendency of a criminal case against the petitioner came to light and to the knowledge of the respondents only on receipt of the verification report from the police authority.
7. It was submitted that attestation of the petitioner was also done in the meantime, which process was complete and after completion of the same, the respondents initiated the proceeding against the petitioner. Although it is sought to be submitted by the counsel appearing for the petitioner that the respondents condoned the aforesaid omission on the part of the petitioner by giving attestation to the petitioner, yet no such order of the respondent condoning the suppression has been placed on record. The respondents may have negligently given attestation to the petitioner without properly acquainting itself with all relevant and necessary information regarding the conduct / antecedents of the petitioner. But the fact remains that upon verification it was found by the respondents that the petitioner is involved in a criminal case in which he was even arraigned for trial which was pending against him on the date of his enrolment.
8. It is settled law that there could be no waiver against the statute. Attestation was a mistake which was done on account of ignorance of material facts. We are of the considered opinion that attestation of the petitioner would not and could not debar the respondents to proceed against the petitioner in accordance with law.
9. The allegation of malice against the respondent No.3 is very vague and the same is not borne out by any document placed on record. Therefore, we are satisfied that there was suppression of material facts on the date of filling up of the enrolment form for which the aforesaid proceeding was initiated and conducted against the petitioner. In the Summary Court Martial trial was held and friend of the accused was also appointed to assist the petitioner. During the said trial, the petitioner pleaded guilty to the charge on the basis of which the order of sentence is passed against the petitioner. We are, therefore, of the opinion that that the aforesaid action on the part of the respondents suffers from no infirmity.
10. We may also refer to the decision of the Supreme Court in Sanjay Kumar Bajpai v. Union of India and others , wherein similar pleas as raised in the present petition were raised. The Supreme Court negatived the said submissions and upheld the order passed by the army authorities. In the said case also it was held that at the time of enrolment, the concerned person did not disclose that the criminal case was pending against him and made a false statement that no case is pending against him at that time.
The petitioner has failed to make out any case in his favor. There is no merit in this petition and the petition stands dismissed.