B.S. Chauhan, J.
1. In the instant, petition, petitioner has challenged the impugned order dated 5.1.1993 contained in Ex. 3 to the petition, by which the petitioner has been dismissed from service.
2. Petitioner had joined the Air Force as non combatant enrolled person in the trade of Lascar (class IV] on 6.3.1985. Petitioner was issued a show cause notice on 30.9.1992 contained in Ex. 1 to the petition why action should not. be taken against him to separate him from service under Section 20 of the Air Force Act, 1950, hereinafter called 'Act' as he entered in the service by making misrepresentation. Petitioner filed reply to the same on 19.10.1992, which is contained in Ex. 2 to the petition. After considering the same, the services of the petitioner were terminated vide impugned order dated. 5.1.1993. Being aggrieved and dissatisfied, petitioner has filed the instant petition for quashing of the impugned order date 5.1.1993 contained in Ex. 3 to the petition.
3. Heard S/Shri R.C. Gaur learned Counsel for the petitioner and S.S. Lal learned Counsel for the respondents.
4. Shri Lal has raised a preliminary objection that the petitioner has filed the instant petition without availing the remedy of appeal under Section 26 of the Act, 1950.
5. The petitioner filed this petition against the order of termination without exhausting the statutory remedy. It is settled law that this Court can exercise its jurisdiction under Article 226 of the Constitution by entertaining a petition directly but it is desirable that the statutory authority must also apply its mind and statutory remedy should ordinarily and generally be exhausted before approaching the writ Court as. per law laid down by the Constitution Bench of the Hon'ble Supreme Court in a G. Virappa Pillai v. Raman & Raman Ltd. : [1952]1SCR583 and subsequently in H.B. Gandhi v. Gopinath and Sons. 1992 (Suppl. 2) SCC 312.
6. As this writ petition is pending for several years, it is not desirable to relegate the parties to the appellate authority at such a belated stage. (Vide Dr. B.P. Agarwal v. State of U.P. and Ors. : [1995]1SCR148 )
7. Shri Gaur learned Counsel for the petitioner does not dispute that at the time of making the entries, the petitioner was involved atleast in three criminal cases between 1980 and 1984. He had been arrested and detained in civil jail for seven days. A criminal appeal against his conviction is also pending in this Court. This Court appreciates the frankness of Sri Gaur on these counts. However, petitioner's case is examined in the light of the aforesaid fairly conceded factual position. All these cases have been mentioned in the show cause notice issued to the petitioner and he replied stating that at the time of entering into service in 1985 as well as while filling up another verification form in 1990, petitioner did not. disclose his involvement in the aforesaid criminal cases because he could not understand English language. But petitioner has admitted his detention in civil jail as well as the pendency of criminal appeal before this Court in which he had been enlarged on bail. The aspect of mis-representation is denied to have been done intentionally. Shri Gaur has submitted that petitioner had done it as he could not understand English Language. The verification forms filled up by the petitioner in 1985 as well as in 1990 formed part of the record and it is clear from the same that the petitioner has filled-up the entire form in English language. It contained plain and simple English and required the petitioner to fill up the blanks as paragraph 13 of the same reads as under:
13. Give details if you have been:
(a) Arrested
(b) Prosecuted
(c) Kept under detention
(d) Charged before a Court with an offence for which you were convicted ....or acquitted.
8. Petitioner has replied to these queries in 'No'. Petitioner filled up the said forms in his own handwriting in English and had filled up the remark Col. No. 17 stilling that petitioner's father had also been in Govt. service etc. and Clause (6) of the form giving details of all his family members. Therefore, it is not possible to presume that the petitioner could not understand such a plain and simple English. The said form was filled-in not only once but twice. Thus one can easily reach the unescapable conclusion that petitioner concealed the material facts while filling up the verification forms knowingly and purposely, first to gain the employment and second time for remaining in service.
9. Shri Gaur refers to the provisions of Section 13 of the Act, which provides for procedure before enrolling officer. The said provision requires that an enrolling officer shall read and explain the person or cause to be. read and explained to him, the conditions of service for which he is to be enrolled and such person is to be cautioned to the effect that if he makes a false answer to any such question, he will be liable to be punished under the Act. Shri Gaur has canvassed that petitioner had not been cautioned by the enrolling officer for consequences for furnishing incorrect informations. Whether petitioner was cautioned or not at the time of enrolment is a question of fact and cannot be determined in writ jurisdiction. Shri Gaur was confronted with the reply to show cause filed by petitioner as he has not taken any such ground or furnished such explanation: Petitioner has not filed the statutory appeal under Section 26 of the Act and he cannot be permitted to raise the issue, which requires the investigation of facts first time in writ jurisdiction.
10. In Ratanlal Sharma v. Managing Committee : (1993)IILLJ549SC , the Apex Court has observed as under'-
All point not raised before the Tribunal or Administrative authority may not be allowed to raise for the first time in writ jurisdiction, more so when the interference in the writ jurisdiction which is equitable and discretionary is not of- course a must.
11. The same view has been taken by the Apex Court in the cases of St. Arunachalam Pillai v. Southern Roadways Ltd. and Anr. : [1960]3SCR764 ; A.M. Allison v. State of Assam : (1957)ILLJ472SC ; Cantonment Board Ambala v. Pyarelal : 1966CriLJ93 ; State of U.P. v. Dr. Anupam Gupta : [1992]1SCR643 ; Bhanwarla v. T.K.A. Abdul Karim : AIR1992SC2166 ; and Rajeshwari Amma v. Joseph : [1995]1SCR163 .
12. As it has been observed earlier that misrepresentation was intentional, there is no doubt that petitioner played fraud upon the authorities for making his entry in service. Petitioner was not involved in an isolated case but had been a habitual offender as the record reveal that petitioner had been asked to execute a bond under Section 110 of the Criminal Procedure Code, 1974. The/provisions of Section 110 Cr.P.C. empowers a Magistrate to require a habitual offender to execute a bond with sureties for good behavior for a period not exceeding three years. Thus, it is not a case where it can be said that petitioner was not fully knowing his antecedents or he filled up the verification form as he could not understand the meaning or 'arrest', 'detention', 'conviction' etc.
13. In S.P. Chengalvarya Naidu v. Jagannath and Ors. : AIR1994SC853 , the Supreme Court observed as under:
The Courts of law are meant for imparting of justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property grabbers, tax evaders, bank loan dodgers and other unscrupulous persons from all walks of life find the Court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood has no right to approach the Court.
14. Chief Justice Adward Coke of England observed three centuries ago as under:
Fraud avoids all judicial acts eccesiastical or temporal
(Quoted in S. P. Chengalvaraya Naidu). (Supra)
15. Similarly Lord Denning in Lazarus Estate Limited v. Beasley (1956) ALL ER 341 (345) observed as under:
No judgment of a Court, no order of ministers can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.
16. In Andhra Estate Financial Corporation v. Gar Re: Rolling Mills : [1994]1SCR857 , the Supreme Court has observed as under:
A Court of equity when exercising its equitable jurisdiction under Article 226 of the Constitution of India, must so act as to prevent perpatration of a legal fraud and the Courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to prevent the law from crafty evasions and subleties invented to evade law.
17. Similarly in the ease of State of Maharashtra and Ors. v. Prabhu : (1995)ILLJ622SC , the Supreme Court has observed as under:
It is the responsibility of the High Court as custodian of the Constitution to maintain the social balance by interfering where necessary for the sake of justice and refusing to interfere where it is against the social interest and public good.
18. In U.P. Junior Doctors Action Committee v. B. Sheetal Nandwani AIR 1991 SCC 908, the candidates got admission in M.B.B.S. courses by playing fraud and making misrepresentation. The Supreme Court rejected the plea of applicability of rules of natural justice and observed that under the circumstances in which such benefit had been taken by the candidates concerned do not justify attraction of the application of rules of natural justice of being provided an opportunity of being heard.
19. It is not necessarily relevant that the employment has been obtained by misrepresentation or by fraud only by the concerned candidates even if there had been a fraud in the selection and the duly selected candidates had not played any part of mischief and there had been no misrepresentation on their part, even then the selection vitiates because of the fraud played by the members of the selection committee or any body else.
20. In Krishna Yadav v. State of Haryana : (1995)IILLJ77SC , the Apex Court held that when the entire selection was stinking 'conceived in fraud and delivered in deceit' individual innocence has no place as 'fraud unravels everything'.
21. The ratio laid down by the Supreme Court in various cases is that dishonesty should not be permitted to bear the fruits and pay dividends to the persons who played fraud or made misrepresentation and in such circumstances the Court cannot be a party to perpetuate the fraud.
22. In Union of India and others v. M. Bhaskaran 1995 Suppl. 4 SCC 100, the Apex Court observed as under:
If by committing fraud any employment is obtained, the same cannot be permitted to be countenanced by a Court of law as the employment secured by fraud renders it voidable at the option of the employer.
23. While deciding the aforesaid cases, the Apex Court placed reliance upon its earlier judgment in District. Collector and Chairman V.S.W.R. Schools Society v. M. Tripura Sundari Devi : (1990)IILLJ153SC , wherein it had been observed that as fraud vitiates everything, the employment obtained by misrepresentation cannot be permitted to continue.
24. Shri Gaur has canvassed on behalf of the petitioner that no enquiry was held against the petitioner before passing the impugned order of termination. The Constitution Bench of the Hon'ble Supreme Court in Lekhraj Khurana v. Union of India and Ors. : [1971]3SCR908 has held that a person, who draws his salary from the Defence Estimate cannot claim the protection of Article 311(2) of the Constitution of India. The same view has been taken in the case of Bhagat Ram v. Union of India 1982 (3) S.L.R. 654. In Gopal Upadhyaya v. Union of India and Ors. : (1995)IIILLJ465SC , the Apex Court has observed that category of persons like the petitioner were members of non combatant force and also subjected to the provisions of the Act. Thus, there is no substance in the argument and it fails.
25. Shri Gaur next submitted that the impugned order stands vitiated for non-compliance of the principles of natural justice as the petitioner was not accorded any opportunity of hearing before passing the impugned order.
26. In Union of India and Ors. v. Amrik Singh : 1991CriLJ664 , the Hon'ble Supreme Court has held that the order impugned is an administrative order and not judicial or quasi judicial one and the administrative order cannot be subjected to the recourse of principles of natural justice and delinquent is not entitled for opportunity of hearing unless the statute or statutory rules provides for it. while deciding the case of Amrik Singh (supra), the Apex Court has considered and followed catena of judgments including Union of India v. J.P. Mitra : (1971)ILLJ256SC ; A.K. Gopalan v. State of Madras : 1950CriLJ1383 ; Captain Harish Uppal v. Union of India : [1973]2SCR1025 ; S.N. Mukherjee v. Union of India : 1990CriLJ2148a ; and Union of India v. Col J.N. Sinha 1970 (2) SCC 438 etc. Thus, this submission also has no force and fails accordingly.
27. It has next been contended by Shri Gaur that Section 20(7) of the Act, 1950 provides that exercise of any power under this section shall be subject to the other provisions contained in the Act and the rules and regulations made thereunder. Section 44 of the Act provides for the punishment for making false answers on enrolment. It is urged that as the same has not been complied- with in the instant case, the impugned order of discharge without putting the petitioner to the proceedings before the Court martial cannot be given effect - to. The same controversy was involved in Union Of India v. S.K. Rao : [1972]2SCR447 , where an identical provision of the Army Act, 1950 had been in issue. The (nearly) Constitution Bench of the Hon'ble Supreme Court after examining the scheme of the Act came to the conclusion that powers under Section 19 of the Army Act were independent of Section 45 of that Act and the instant case falls squarely covered by the said decision and the Court reaches the conclusion that removal from service under Section 20 of the Air Force Act read with the said Rules, 1969, a Court martial is not necessary under Section 44 of the Act and by application of the ratio of the aforesaid case, it can be concluded that two sections viz; 20 and 44 of the Act are mutually exclusive. Therefore, if the respondents had adopted a very lenient view towards the delinquency of the petitioner and did not subject him to Court-martial proceedings, it cannot be an issue in his favour. Where an employee can be removed from service by passing the administrative order and can also be imprisoned after putting him to trial and the authority concerned, has not resorted to proceedings, which may award the punishment of imprisonment, it will be deemed that the authority concerned has compounded the offence to that effect. [Vide Central Bureau of Investigation SPE SIU (X), New Delhi v. Duncans Agro Industries Ltd. : 1996CriLJ3501 ] This Court in Philipose Samuel and etc. v. Union of India and Ors. 1981 LAB I.C. 147 considered this issue and observed as under:
Where the AIR Force authorities had inflicted the punishment of dismissal of employee under Section 20(3) and Rule 18, without holding Court-martial, such punishment would be legal and valid as there is no provision which makes it obligatory that Court-martial must be held for taking administrative action of dismissal from service and in exercise of power under Section 20(3), there is no restriction in the provisions of the Act or the rules that a Court-martial must be held and imposition of punishment of dismissal by Court-martial is a condition precedent or a sine qua non for disciplinary action of dismissal.
28. Thus, learned Counsel failed to substantiate this ground and it also fails.
29. The last submission made by Shri Gaur is that the impugned order is void having not been passed by the competent authority, but the same had merely been 'approved' by the same. A similar issue was considered by the Delhi High Court in Sohan Singh v. Union of India and Ors. 1977 (1) SLR 122 and the Court observed as under:
It is true that the intimation of the order is rather unhappily worded but to my mind, it is immaterial if the competent authority purports to dispense-with the services or to discharge the petitioner or record that the competent authority had agreed to such dispensing or discharge. What is material is the substance of the order and not the form of it and the substance leaves no manner of doubt that it is the order of the competent authority discharging the petitioner from service.
30. I am in respectful agreement of the view taken by the Delhi High Court and the petitioner fails to substantiate this plea also and the same is also liable to be rejected.
31. No other point was urged.
32. Petitioner got the enrollment by making misrepresentation as the information furnished by him, is admittedly incorrect and false, and at the threshold, he is liable to be terminated from service..
33. In view of the above, petition is devoid of any merit and hence dismissed.