IMPORTANT POINT
Appointment obtained by playing fraud is non est.

JUDGMENT :

A.K.SIKRI, J.

1. The appellant has filed this appeal, along with application for grant of leave to appeal, against the order dated 28.02.2017 passed by the Armed Forces Tribunal, Principal Bench at New Delhi( for short, the 'AFT'), whereby it has dismissed the original application filed by the appellant. Leave to file the present appeal has also been rejected by the AFT by a separate order.

2. Leave to appeal is granted.

3. The facts giving rise to this appeal are that the appellant was enrolled in the Army as Sepoy/Washerman on 19.01.2009. After about 6 years of service a show cause notice was issued on 08.10.2014 alleging offence of fraudulent enrolment i.e. enrolment in the Army based on a fake relationship certificate. On 13.03.2015, the respondent authorities dismissed the appellant from service under Section 20(3) of the Army Act. The appellant submitted representation before the respondent which was not considered in time due to which he filed O.A. No. 773/2015 before the AFT and the same was disposed of with a direction to decide the representation of the appellant. On 09.08.2016 the respondents rejected the representation of the appellant. The appellant preferred the Original Application under Section 14 of the Armed Forces Tribunal Act, 2007 challenging the order dated 09.08.2016.

4. It may be noted that without admitting the formal original application, the AFT had directed the respondent to produce the relevant documents. In compliance with the said direction, the Relationship Certificate dated 09.08.2004 was produced vide reply dated 05.11.2014 submitted by the appellant to the show cause notice issued by the establishment. In the reply so submitted the appellant had specifically admitted the fact that his father was not an Ex-serviceman and, in fact, he had produced and relied on a fake Relationship Certificate. The records pertaining to Army No. 14224588 made available by the respondents clearly showed that number is in respect of Onkar Mal Gujar.

5. Taking into consideration the aforesaid admitted facts, the AFT held that since the appellant got enrolment in the Army by making use of a fake Relationship Certificate, his dismissal from service on the ground of fraudulent enrolment was perfectly justified and no fault could be found with the order of dismissal passed by the establishment.

6. The only ground raised by the learned counsel for the appellant before us is that there could not have been an order of dismissal under Section 20(3) of the Army Act, 1950 and this general power could not have been exercised when there is a specific provision to deal with such cases laid down in Section 122(4) of the Army Act,1950. He submitted that as per law laid down by this Court in catena of judgments, the general provision cannot be invoked when there is a specific provision to deal with such situation.

7. In order to appreciate the aforesaid contentions we reproduce Section 20 as well as Section 122 of the Army Act, 1950.

“20. Dismissal, removal or reduction by the Chief of the Army Staff and by other officers.—

(1) The Chief of the Army Staff may dismiss or remove from the service any person subject to this Act other than an officer.

(2) The Chief of the Army Staff may reduce to a lower grade or rank or the ranks, any warrant officer or any non-commissioned officer.

(3) An officer having power not less than a brigade or equivalent commander or any prescribed officer may dismiss or remove from the service any person serving under his command other than an officer or a junior commissioned officer.

(4) Any such officer as is mentioned in sub-section (3) may reduce to a lower grade or rank or the ranks, any warrant officer or any non-commissioned officer under his command.

(5) A warrant officer reduced to the ranks under this section shall not, however, be required to serve in the ranks as a sepoy.

(6) The commanding officer of an acting non-commissioned officer may order him to revert to his permanent grade as a non-commissi