Gulcharan Singh vs Union Of India And Ors
2025 Latest Caselaw 86 J&K

Jammu & Kashmir High Court

Gulcharan Singh vs Union Of India And Ors on 8 May, 2025

Author: Javed Iqbal Wani

Bench: Javed Iqbal Wani

                                                                                       S. No. 29

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU
Case No.SWP No. 2140/2006
c/w
SWP No. 944/2007

Gulcharan Singh
                                                                                  .....Petitioner(s)
                        Through: Mrs. Surinder Kour, Sr. Advocate with
q
                                 Mr. Manpreet Kour, Advocate                                             dddddddd d




                  Vs.
Union of India and ors.                                                       ..... Respondent(s)
                        Through: Mr. Vishal Sharma, DSGI with
                                 Mr. Eishaan Dadhichi, Advocate
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                          ORDER

08.05.2025

01. In the instant petition filed under Article 226 of the Constitution, the

petitioner has prayed for the following reliefs:-

"(i) to quash Order No. P.VIII.3/06-EC.II (G.S) dated 1st of November 2006 issued by Commandant 16 Bn. CRPF by which the commandant has imposed punishment of removal on the petitioner and also to quash Departmental Proceedings, by issuance of writ of certiorari;

(ii) to issue directions to the respondents to consider the case of the petitioner for reinstatement and to allow the petitioner to resume/perform the duties on the post of Constable on which the petitioner was working prior to the issuance of order of removal from service and also to pay salary to the petitioner on the post of Constable and also to give consequential benefits of service to the petitioner and to treat the period with effect from the date of removal from service to the date the petitioner re-joins the Unit "on duty", by issuance of writ of mandamus;

(iii) to issue directions to the respondents restraining them to treat the period with effect from 1st of November 2006 to the date the petitioner re-joins the Unit as „break in service‟, by issuance of writ of prohibition;

(iv) to issue directions to the respondents to produce all original record of departmental/enquiry proceedings before this Hon‟ble Court, by issuance of writ of mandamus;

(v) to declare Order No. P.VIII.3/06-EC.II (G.S) dated 1st of November 2006 issued by Commandant 16 Bn. CRPF by which the Commandant has imposed punishment of removal on the petitioner, as ultra virus, illegal, arbitrary, unconstitutional, unjust and contrary to the provisions of CRPF Act and Rules and also against the provisions of principles of natural justice, by issuance of writ of mandamus;

OR

(vi) to issue any other writ, order or direction which the Hon‟ble Court may deem just and proper in the facts and circumstances of the case."

02. The background facts whereunder the aforesaid reliefs have been prayed

and as are stated in the petition, are that the petitioner herein came to be enrolled

in the Central Reserve Police Force (CRPF) after facing a prop of selection as a

Constable (GD) on 02.05.1998 and allotted No. 981170665 whereafter the

petitioner successfully completed the requisite training and came to be posted in

16thBatallion of the force. It is stated that at the time of his selection/appointment

the petitioner submitted all necessary requisite documents which could be verified

by the respondents yet the respondents framed a false and frivolous charge against

the petitioner on 30.05.2006 alleging that the petitioner at the time of his

selection/appointment furnished a fake category certificate for being a member of

Schedule Tribe, which certificate had been issued by Tehsildar Kathua under

Form IX pursuant under SRO 126 of 28.06.1994 and consequently, the

respondents without conducting a proper enquiry under in terms of the provisions

of Rule 27 of the CRPF Rules of 1955, vide order No. P.VIII/3/06-EC.II(G.S)

dated 01.11.2006 removed the petitioner from service.

03. The petitioner has maintained the instant petition, inter-alia, on the grounds

that the respondents did not follow the procedure prescribed by the rules for

conducting an enquiry and in the process also violated the constitutional

provisions contained in Article 14 and 16 of the Constitution and that the

respondents imposed the said punishment of removal from service against the

petitioner on the basis of no evidence and even did not furnish the copies of the

enquiry proceedings conducted against the petitioner after completion of the said

enquiry, thus vitiating the whole process of enquiry and that the petitioner was

removed from service by the respondents for none of his faults without providing

an ample opportunity to the petitioner to defend himself and also did not provide

him any defence counsel and that the respondents inflicted a disproportionate

punishment upon the petitioner by removing him from service and deprived him

of his right to livelihood and that the appeal filed against the order of removal as

well came to be passed by the appellate authority in a mechanical manner without

following the provisions of the CRPF Act of 1949 and Rules of 1955.

04. Objections to the petition have been filed by the respondents wherein the

petition is being opposed. It is being stated in the said objections that the

petitioner admittedly came to be selected as a Constable (GD) on 08.05.1998

against the Schedule Tribe quota and that pursuant to the judgment passed by the

Delhi High Court in OWP No. 5976/2003 the Scheduled Tribe certificate of the

petitioner came to be got verified as the said judgment of the Delhi High Court

passed a general direction that in cases where people have secured appointment

under reserved category is in Government of India services or its allied agencies,

the veracity of their said category certificate shall be up got authenticated and

upon receiving response from Tehsildar Kathua dated 18.08.2005 in response to a

letter of the respondents dated 13.07.2005, the Tehsildar communicated that the

certificate possessed by the petitioner was never issued by the Tehsildar office

and that upon the receipt of the said report from the Tehsildar, an FIR as well

came to be registered against the petitioner through SHO Police Station Kathua

and that simultaneously a departmental enquiry was ordered against the petitioner

which came to be conducted in terms of the Provisions of the Act of 1949 and the

Rules of 1955 respectively and after conclusion of the said enquiry, the petitioner

came to be removed from service in term of the impugned order. It is being also

stated that a proper enquiry was conducted in the matter and the petitioner was

provided an adequate opportunity to defend himself and that during the course of

the said enquiry, the petitioner produced a letter dated 18.07.2006 issued by the

Tehsildar Kathua wherein it had been stated that the information provided in the

earlier letter dated 18.08.2005 pertaining to certificate of the petitioner was not

correct and be treated as cancelled and that the caste certificate possessed by the

petitioner is proper and consequently the said letter produced by the petitioner

also got verified from Tehsildar Kathua who, however, informed the respondents

that the said letter has not been issued by his office. It is reiterated in the reply that

during the holding of enquiry against the petitioner, the principles of natural

justice were followed and not violated at any stage and that upon completion of

the enquiry, a reasoned speaking and comprehensive order, impugned in the

petition came to be passed against the petitioner and punishment of removal from

service was ordered strictly inconsonance with the mandate of law in force after

having found him guilty and taking into account of his being a member of

discipline force.

05. Rejoinder affidavit has also been filed by the petitioner in response to the

counter affidavit filed thereto by the respondents controverting the stand taken by

the respondents in the counter affidavit. Besides an application being CM No.

389/2011 has also been filed by the petitioner whereby the judgment passed by

the Court of Principal Sessions Judge, Kathua dated 15.10.2011 has been placed

on record pertaining to the case titled as State vs Gurucharan Singh arising out

of FIR registered against the petitioner qua the category certificate in question at

the instance of the respondents for commission of offences under section 420,

467, 468, 471, whereunder the petitioner came to be acquitted of the charges on

the ground that the prosecution failed to connect the accused with the commission

of the said offences.

Heard learned counsel for the parties and perused the record.

06. Perusal of the record pertaining to the case in hand produced by the counsel

for the respondents pursuant to the orders of this Court would indisputably tend to

show that the petitioner had applied for the post of Constable (GD) in CRPF

through the application form filled by him bearing no. 2 ST. It also gets revealed

from the said record that the petitioner herein came to be selected and appointed

in terms of the appointment order of May 1998 figuring at serial No. 65. Record

would also reveal that a communication stands addressed by the Additional DIGP

CRPF dated 30.07.2005 to Tehsildar Kathua in connection with verification of the

caste certificate of the petitioner and the Tehsildar Kathua in response thereto in

terms of letter dated 18.08.2005 has provided that the said certificate has not been

issued by his office. The aforesaid record would also show that the certificate in

question stands in the name of the petitioner herein issued under the signature of

the Tehsildar Kathua showing therein the petitioner to be belonging to the

"Choudhary caste" specified as a "Scheduled Tribe" having been issued in form

IX to SRO 126 dated 28.06.1994.

07. It also gets revealed from the record available on the file and as has been

noticed in the preceding paras, the petitioner herein has been acquitted in the FIR

registered against him in connection with the commission of the offence of

forgery and other allied offences pertaining to the certificate in question and a

closer examination of the said judgment passed by the Court of Principal Sessions

Judge, Kathua demonstrates that the said acquittal came to be earned by the

petitioner after the said court had observed that the investigation in the case had

been conducted in a casual and faulty manner and that there had been no evidence

much less illegal evidence connecting the petitioner with the offences.

08. Having regard to the aforesaid facts inasmuch as the respective pleadings of

the parties as also the rival submissions of the appearing counsel for the parties,

the core issues that arises for consideration of this court in the instant matter is as

to whether, the respondents could have removed the petitioner from service under

the provisions of the Act of 1949 and Rules of 1955.

09. Before proceeding further in the matter, it would be significant to refer to

Rule 27 (ccc) of the Rules of 1955 being relevant herein, which reads as under:-

"(ccc) When a member of the Force has been tried and acquitted by a criminal court, he shall not be punished departmentally under this rule on the same charge or on a similar charge upon the evidence cited in the criminal case, whether actually led or not, except with the prior sanction of the Inspector General".

As is manifest from above sub rule, forbids that when a member of Force

stands tried and acquitted by a criminal court from being punished departmentally

on the same charge or on a similar charge upon the evidence cited in the criminal

case, whether actually led or not, except with the prior sanction of the Inspector

General.

10. Reverting back to the case in hand and as has been noticed in the preceding

paras, the petitioner admittedly stands removed from services in terms of

impugned order dated 01.11.2006, whereas, the petitioner stands acquitted in the

aforesaid criminal case on 15.10.2011 i.e much after his removal from service.

Thus, the provisions of Rule 27 (ccc) (supra) does not apply to the case of the

petitioner and do not lend any support to the petitioner, in that, much emphasis in

this regard was laid during the course of the hearing of the matter by the counsel

for the petitioner upon the application of the rule (supra) to the case of the

petitioner.

Besides it is settled law that a departmental proceeding is not a criminal

trial and is not to be held on the same lines and in the same manner in which a

criminal trial against an accused is conducted and that in disciplinary proceeding

the doctrine of preponderance of probabilities is applicable, whereas in a criminal

trial the standard of proof is required to proved beyond reasonable doubt. The

aforesaid position and principle of law has been laid down by the Apex Court in

case titled as "Union of India Vs. Sardar Bahadur reported in 1972 (4) SCC

618."

11. It is significant to mention here while risking repetition, the fundamental

charge/allegation levelled against the petitioner in the departmental proceedings

has been that the petitioner while seeking his selection and appointment as

Constable (GD) produced a fake Scheduled Tribe certificate and in order to prove

the said charge, record of the enquiry produced by the counsel for the respondents

would reveal that the respondents in presence of the petitioner in the said

proceedings got the said change proved through the communication/letter of the

Tehsildar Kathua that the said Scheduled Tribe certificate is fake and although the

petitioner in rebuttal thereto have had produced yet another letter from the said

Tehsildar 18.07.2006 in contradiction to the earlier authentication letter of the

Tehsildar, the said letter produced by the petitioner as well had been got verified

during the enquiry proceedings in presence of the petitioner from the office of

Tehsildar Kathua who in regard to that letter as well reported that the said letter

has not been issued from his office, thus, signifying not only the Scheduled Tribe

certificate produced by the petitioner was found to be fake but also the aforesaid

letter produced by the petitioner during the holding of departmental enquiry was

also found to be fake.

12. In presence of the aforesaid conclusions drawn by the enquiry officer in the

enquiry conducted in the matter in association of the petitioner therein the said

enquiry, it cannot by any stretch of imagination be said that the respondent faulted

in the matter or in holding the enquiry.

Besides law is no more res integra and stands settled that if an appointment

has been secured on the basis of a forged and fabricated document, such an

appointment would be non est in the eyes of law and would not create any right in

favour of the person so appointed and that the principles of natural justice are to

be followed in a case where appointment is legally valid as illegal appointment

secured on the basis of forged and fabricated document does not vest any right on

the person as fraud vitiates everything. A reference in this regard to the judgment

of the Apex Court passed in case titled as "Union of India Vs. Dattatrya S/o

NamdeoMendhekar and Others reported in (2008) 4 SCC 612", as also in case

titled as "State of Uttar Pradesh and others Vs. Ravindra Kumar Sharma and

others" reported in (2016) 4 SCC 791 would be relevant, wherein at paras 6 and 8

respectively, following has been provided:-

"6. In this context, we may also refer to the decisions in Bank of India v. Avinash D. Mandivikar and BHEL v. Suresh Ramkrishna Burde wherein this Court held that when a person secures appointment on the basis of a false caste certificate, he cannot be allowed to retain the benefit of the wrong committed by him and his services are liable to be terminated..."

"8. In Ram Chandra Singh v. Savitri Devi it was held thus:

„15. ........ Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together.

16. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by word or letter.

17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.

18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to belief and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.

23. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous.

25. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata.

26. In Shrisht Dhawan v. Shaw Bros., it has been held that:

‟20. Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct.‟

29. In Chittaranjan Das v. Durgapore Project Ltd.

‟56. Suppression of a material document which affects the condition of service of the petitioner, would amount to fraud in such matters. Even the principles of natural justice are not required to be complied with in such a situation.

57. It is now well known that a fraud vitiates all solemn acts. Thus, even if the date of birth of the petitioner had been recorded in the service returns on the basis of the certificate produced by the petitioner, the same is not sacrosanct nor the respondent company could be bound thereby."

13. Viewed thus, for what has been observed, considered and analysed

hereinabove, the instant petition lacks merit and is accordingly dismissed.

14. The record produced by the counsel for the respondents is returned back in

the open Court.

The instant petition is segregated and be listed for consideration on

15.05.2025.

(Javed Iqbal Wani) Judge

Jammu 08.05.2025 Rahul Sharma

Whether the judgment is speaking? Yes/No Whether the judgment is reportable? Yes/No