Jammu & Kashmir High Court
Dharminder Kumar vs Union Of India And Others on 29 August, 2025
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
(Through virtual mode from Srinagar)
WP(C) No. 1222/2024
CM No. 3092/2024
Pronounced on: 29.08.2025
Dharminder Kumar .... Petitioner/Appellant(s)
Through:- Mr. Mohd. Ahsan Khanji,
Advocate.
V/s
Union of India and others .....Respondent(s)
Through:- Mr. Vishal Sharma, DSGI.
CORAM: HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
HON'BLE MR. JUSTICE SHAHZAD AZEEM, JUDGE
Per:Sindhu Sharma-J
JUDGMENT
01. The petitioner has invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking quashment of the orders dated 04.04.2018 and 29.08.2018 passed by the Armed Forces Tribunal, Regional Bench Srinagar at Jammu (hereinafter referred to as 'AFT'), in O.A. No. 426 of 2017 and R.A. No. 07 of 2018. The petitioner further seeks quashing of order dated 10.10.2016 which was served to him vide Order No. 12914993/CF/A, dated 29.12.2016, issued by the respondents, whereby the petitioner was discharged from the Territorial Army service.
02. The petitioner was selected and enrolled in the 156th Infantry Battalion of the Territorial Army on 15.02.2016. At the time of his enrollment, the petitioner submitted all the Page 2 of 7 relevant documents, which included a provisional Character Certificate issued by the SDPO, Nowshera. At the time. the petitioner was, undergoing basic military training. The respondents received a letter dated 29.02.2016 from the S.H.O., Police Station Nowshera, District Rajouri, summoning his presence in connection with a criminal case arising out of FIR No. 79/2015. Subsequently, a communication was received from the Court of the learned Sub-Judge (JMIC), Nowshera, indicating that a challan had been presented against the petitioner for trial under Sections 451, 147, 148, and 323 of the RPC. The Court further informed the respondents that an option was to be exercised by the competent authority to try the petitioner either under the Army Act through Court Martial or by the Civil Court under the Code of Criminal Procedure.
03. The respondents thereafter issued a show-cause notice dated 15.06.2016, calling upon the petitioner to show cause why he should be discharged from services. In response while filling out the enrollment form, the petitioner was specifically asked whether he had ever been imprisoned by civil authorities or whether any complaint or report had been made against him to a Magistrate or the police in connection with any offence. The petitioner answered in the negative. However, as per the SHO's letter dated 29.02.2016, FIR No. 79/2015 under Sections 452, 323, 147, 148 RPC and Section Page 3 of 7 4/25 of the Arms Act had been registered against the petitioner and he had been released on bail on 27.05.2015. This, according to the respondents, rendered the statement of the petitioner false, at the time of his enrolment.
04. In his reply, the petitioner contended that he had been falsely implicated in the said FIR and had been informed by the concerned police authorities that his name had been removed from the case. He further submitted that, acting in good faith, he had answered the relevant question in the enrollment form.
05. The respondents, after considering the entire record found the reply unsatisfactory, discharged the petitioner from service vide Order No. 12914993/CF/A, dated 29.12.2016, under the provisions of Para 14(b)(ii) and Rule 15(a) of the Territorial Army Regulations, 1948. The discharge certificate was handed over to the petitioner, who refused to sign in presence of the witnesses. The discharge certificate thereafter was sent by registered post to the petitioner.
06. The petitioner approached the AFT against the order of his discharged by filing O.A. No. 426 of 2017, which was dismissed vide order dated 04.04.2018. The AFT held that there was no requirement under the Territorial Army Act, Rules, or Regulations mandating a formal inquiry prior to discharge under the circumstances. The AFT observed that since the petitioner had admitted the existence of the FIR Page 4 of 7 against him, his negative response in the enrollment form constituted a false statement. The AFT further observed that the judicial review is limited to ensuring fairness in the decision-making process and does not involve re-appreciation of facts, accordingly, the AFT declined to interfere with the discharge order.
07. The petitioner thereafter filed Review Application No. 07 of 2018 in O.A. No. 426 of 2017, which was also dismissed vide order dated 29.08.2018 as being devoid of merit.
08. Aggrieved by both the aforesaid orders, the petitioner has preferred the instant writ petition.
10. The enrollment form filled by the petitioner contained a specific question: "Have you ever been imprisoned by the civil power or are you under trial for any offence, or has any complaint or report been made against you to the Magistrate or Police for any offence? If so, give details." The petitioner replied, "No."
11. The respondents subsequently received a letter dated 29.02.2016 from the SHO, Police Station Nowshera, indicating that the petitioner was involved in FIR No. 79/2015, and had been granted bail on 27.05.2015. This was further confirmed by the Court while seeking an opinion from the respondents regarding the mode of trial. Based on this, the respondents issued a show-cause notice, and being not satisfied with the petitioner's reply, discharged him from service on 29.09.2016. Page 5 of 7
12. The discharge of the petitioner was effected in terms of Section 14(b)(ii) of the Territorial Army Rules, 1948. This Rule clearly states that any person may be discharged on following grounds:
"(i) that he has been convicted by a criminal court of an offence punishable with transportation or imprisonment;
(ii) that he has in filling up any form prescribed by these rules or otherwise for the purpose of obtaining his enrolment made any statement which was false and which he knew to be false or did not believe to be true;
(iii) that his service are no longer required;
(iv) that he is medically unfit for further service."
13. The petitioner, having knowingly made a false statement at the time of his enrollment, was accordingly discharged from service with effect from 10th October, 2016.
14. The primary contention of the petitioner is that no departmental inquiry was conducted prior to his discharge; however, he has failed to point out any statutory rule requiring such an inquiry in cases where discharge is based on furnishing false information during enrollment.
15. The petitioner has also relied upon the Character Certificate submitted at the time of enrollment and claimed that he was informed by the police that no case was pending against him. However, the said Character Certificate was provisional in nature and could not be treated as conclusive. Page 6 of 7
16. The Hon'ble Apex Court in 'Union of India vs. Shishu Pal @ Shiv Pal', 2024 AIR SC 3652, while considering a similar issue held:-
"21. Ultimately, the purpose of seeking the relevant information with respect to the antecedents of a candidate/employee is to enable the employer to ascertain the suitability of the candidate/employee for the subject post. In The State of Madhya Pradesh and Others v. Bhupendra Yadav (2023) SCC Online SC 1181 : 2023 INSC 837 (authored by one of us, Hima Kohli, J), citing the decision in Avtar Singh (supra), the following observations were made:"
"16. As can be discerned from the above decision, an employer has the discretion to terminate or condone an omission in the disclosure made by a candidate. While doing so, the employer must act with prudence, keep in mind the nature of the post and the duties required to be discharged. Higher the post, more stringent ought to be the standards to be applied. Even if a truthful disclosure has been made, the employer is well within its right to examine the fitness of a candidate and in a concluded criminal case, keep in mind the nature of the offence and verify whether the acquittal is honourable or benefit has been extended on technical reasons. If the employer arrives at a conclusion that the incumbent is of a suspect character or unfit for the post, he may not be appointed or continued in service."
17. The same principle has been reiterated in 'Avtar Singh vs. Union of India', (2016) 8 SCC 471, and 'The State of Madhya Pradesh vs. Bhupendra Yadav', (2023) SCC Online SC 1181.
18. It is evident from the material on record that the petitioner, at the time of his enrollment in the Territorial Army, knowingly suppressed material information regarding Page 7 of 7 his involvement in a criminal case. The enrollment form specifically required disclosure of any complaint or report made to the police or Magistrate in connection with any offence, to which the petitioner responded in the negative. However, it is admitted that FIR No. 79/2015 was registered against him and that he had been admitted to bail prior to his enrollment. It was incumbent upon the petitioner to provide this information truthfully in response to the question regarding the same at the time of his enrolment. The petitioner, however, provide false statement, thus, detaining his enrolment on a statement knowing it to be false. The respondents also could not ascertain the suitability of the petitioner with regard to his antecedent. The subsequent discharge order, therefore, cannot be termed as arbitrary or illegal.
19. In view of the aforesaid, we find no infirmity in the impugned orders passed by the AFT or in the action taken by the respondents leading to the discharge of the petitioner.
20. This writ petition is, therefore, found to be devoid of any merit and the same is, accordingly, dismissed.
(Shahzad Azeem) (Sindhu Sharma)
Judge Judge
Jammu:
29.08.2025
Michal Sharma/PS
Whether approved for reporting : Yes