Rajasthan High Court - Jaipur
Ex Const Mukesh Kumar Raigar vs U O I ( Ministry Of Home Affair)Ors on 16 February, 2018
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No. 8190 / 2012
Ex-const/DVR Mukhes Kumar Raigar S/o Ram Swaroop Raigar,
aged About 27 Years, resident of Village and Post Office Tatera,
Tehsil Neemkathana, District Sikar-332701 (Rajasthan)
----Petitioner
Versus
1. Union of India Through Secretary, Ministry of Home Affairs,
New Delhi-1.
2. Director General, CISF, CGO Complex, Lodhi Road, New
Delhi-03.
3. Inspector General, CISF, 13, CGO Complex, Lodhi Road, New
Delhi-110003
4. Deputy Inspector General (AP) West Zone, Airport HQ
Kendriya Sadan-C-301, Sector-10, CBD Belapur, New Delhi-
03.
5. Sr. Commandant CISF (Unit) Airport, Port Mumbai-99
----Respondents
_____________________________________________________ For Petitioner(s) : Mr.M.R.Yadav, Adv.
For Respondent(s) : Mr.Mukesh Kumar Meena, Adv. _____________________________________________________ HON'BLE MR. JUSTICE ASHOK KUMAR GAUR Order 16/02/2018 The petitioner, who was working as Constable in CISF, has approached this Court challenging the following orders:-
(i) order dated 11.07.2009 (Annex.1) whereby a penalty has been imposed upon the petitioner under Rule 34(i-v) and Rule 32 of Central Industrial Security Force Rules, 2001;
(ii) order dated 02.09.2009 (Annex.2) where the order was amended and petitioner was punished under Rule 34(viii) and Rule 32 of the Rules of 2001 converting the earlier major punishment into minor;
(iii) order dated 06.,10.2009 (Annex.3) passed by the Revisional (2 of 5) [CW-8190/2012] Authority, wherein a fresh departmental enquiry was ordered to be conducted;
(iv) order dated 20.10.2009 (Annex.4) serving the charge-sheet to the petitioner;
(v) order dated 20.10.2009 (Annex.5) appointing Enquiry Officer;
(vi) order dated 09.03.2010 (Annex.7) removing petitioner from service;
(vii) order dated 23.06.2010 (Annex.9) passed by the Appellate Authority rejecting the appeal of the petitioner;
(viii) order dated 20/21.12.2010 (Annex.11), by which revision petition of the petitioner was dismissed.
Learned counsel for the petitioner submits that all these impugned orders have been passed by the respondents only on account of non-disclosure of the fact of pendency of a criminal case registered against petitioner under Sections 341, 323, 324 of IPC at Police Station Ajeetgarh, District Sikar. The allegation was that the petitioner while filling the form, did not mention specifically about registration of the said criminal case and left the column blank.
Learned counsel for the petitioner submits that every non- disclosure of criminal case in the verification form or application form, is not fatal and the Apex Court in the case of Avtar Singh Vs. Union of India & Ors., [Special Leave Petition (C) No.20525/2011], decided on 21.07.2016, in para 30, has laid down the parameters, which are required to be considered by the appointing authorities for considering each case.
(3 of 5) [CW-8190/2012] Learned counsel for the petitioner has further relied on a judgment passed by this Court in S.B.Civil Writ Petition No.20017/2013 (Kanwar Pal Vs. Union of India & Ors.) and other connected writ petitions, on 08.12.2016, where directions have been given to submit representations before the Appointing Authorities for re-consideration of cases of the petitioners therein in context of the judgment of Apex Court in the case of Avtar Singh (supra) and of this Court passed in the case of Kamal Singh Meena Vs. Union of India & Ors., reported in 2016(3) WLC (Raj.)
687. The counsel submits that the case of the petitioner is also required to be re-considered by the respondents in view of the law laid down by Apex Court as well as by this Court.
Mr. Mukesh Kumar Meena, learned counsel for the respondents does not dispute the legal position, however, he submits that the petitioner ought to have disclosed the complete facts while filling the form or furnishing the details in the verification form.
This Court is of the opinion that the case of the petitioner is also required to be considered by the Appointing Authority in the context of parameters laid down by the Apex Court in the case of Avtar Singh (supra) and further, by this Court in the case of Kamal Singh Meena (supra).
The Apex Court in the case of Avtar Singh Vs. Union of India & Ors. (supra) has held as under:-
"30. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize our conclusion thus:
(4 of 5) [CW-8190/2012] (1) Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.
(2) While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information. (3) The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision. (4) In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted : -
(a) In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
(b) Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
(c) If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.
(5) In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.
(6) In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case. (7) In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.
(5 of 5) [CW-8190/2012] (8) If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime. (9) In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.
(10) For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
(11) Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him.
This petition deserves to be allowed in view of the law laid down by the Apex Court. The impugned orders are quashed and set aside. The petitioner is directed to file a detailed representation before the Appointing Authority for re- consideration of his case in the context of judgment of the Apex Court in the case of Avtar Singh (supra) and of this Court in the case of Kamal Singh Meena (supra). The Appointing Authority is directed to decide the representation filed by the petitioner by reasoned and speaking order with reference to the judgments as indicate above, within a period of eight weeks from the receipt of the representation.
The writ petition stands allowed accordingly.
(ASHOK KUMAR GAUR) J.
NK/81