Honble Dr. B.S. Chauhan, J.—This Special Appeal has been filed against the judgment and order of a learned Judge of this Court dated 13-2-2004, dismissing the writ petition filed by the present appellant on the ground that he obtained the employment by misrepresentation.

2. The facts and circumstances giving rise to this case are that the petitioner-appellant was enrolled in the Army as a recruit on 30th August, 1986 and stood discharged with effect from 31-7-1989 on the ground that he had given a false declaration at the time of his enrolment to the effect that no criminal case was pending against him, which was found to be false on verification. He challenged the said order of discharge, dated 31-7-1989 by filing a writ petition in 1996 which was dismissed vide impugned judgment and order dated 13-2-2004 recording the following findings of fact :

I. At the time of enrolment, the petitioner was involved in Criminal Case No. 114 of 1983 under Section 379, IPC.

II. While filling up the application for enrolment, he did not disclose in his declaration the pendency of the said criminal case against him.

III. It came to the knowledge at the time of verification that the petitioner had suppressed the material information particularly asked about his involvement in criminal case.

IV. The petitioner stood discharged as he had obtained the employment by misrepresentation as he was not likely to become an efficient soldier.

V. The petitioner was found guilty in the said criminal case, though released on probation.

3. Shri A.K. Srivastava, learned Counsel appearing for the appellant has submitted that no opportunity of hearing was given to the petitioner-appellant before passing the order of discharge and the procedure prescribed for discharge under the Rules was not followed. As the petitioner-appellant has been given the benefit of Probation of Offenders Act, 1958 (hereinafter called the ‘Act 1958’), the termination/discharge order was liable to be set aside. It is submitted that the criminal Court while deciding the case has made an observation that his conviction would not adversely affect his service career in view of the provisions of Section 12 of the Act 1958.

4. On the contrary, Smt. Anuradha Chauhan, learned Counsel appearing for the respondents has vehemently opposed the appeal contending that the petitioner-appellant had played fraud while gaining employment, therefore, it stood vitiated and in such a fact situation, as the appellant had not disclosed the pendency of the criminal case and subsequently has been convicted by the Court, no indulgence should be given to him. More so, granting the benefit of Act, 1958 would not entitle the appellant any relief for the reason that it takes away the effect of sentence and not of conviction. Thus, the appeal is liable to be dismissed.

5. We have considered the rival submissions made by learned Counsel for the parties and have perused the record including the original records produced before us by Smt. Anuradha Chauhan, learned Counsel for the respondents.

6. The application form had been filled up by the appellant in 1986 wherein column No. 8 requires the applicant to furnish the information as to whether the applicant had ever been imprisoned or had been put under trial for any offence or any complaint or report had ever been made against the applicant to the Magistrate or Police for any offence. The petitioner-appellant filled up the said column by writing the word ‘no’. Therefore, there is no dispute that he had not furnished the correct information sought for in this regard. The application form had been filled up by someone else in English but has been signed by the appellant himself. The appellant had been tried in a criminal case which has subsequently been decided vide judgment and order dated 12-7-1995 (Annex. 4), wherein he stood convicted for the offence punishable under Section 379, IPC, however, he has been given the benefit of the provisions of Act 1958. It has further b