Central Administrative Tribunal - Cuttack
B Bisi vs D/O Post on 29 August, 2024
1 O.A.No. 260/00408 of 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00408 of 2018
Reserved on 26.08.2024 Pronounced on 29.08.2024
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
Binod Bisi, aged about 37 years, Son of Khyama Bisi,
working as MTS Group 'C' under HRO RMS Division,
Cuttack, At Balenpalli, P.O- Bankipalli, P.S/ Via-
Rampur, Dist- Sonepur. (N)
......Applicant
VERSUS
1. Union of India, Ministry of Communication & I.T.
Department of Post represented through it's Secretary,
Dak Bhawan, Sansad Marg, New Delhi-110001.
2. Chief Post Master General, Odisha, Circle,
Bhubaneswar, Dist- Khurda, PIN-751001.
3. Senior Superintendent, RMS 'N' Division, Nuapatna, P.O-
Buxibazar, Dist- Cuttack.
4. HRO, Head Record Officer, HSG-I, RMS-'N' Division,
Nuapatna, PO-GPO, Dist- Cuttack.
......Respondents
For the applicant : Mr. T.K.Mishra, Counsel
For the respondents: Mr. S.S.Patra, Counsel
2 O.A.No. 260/00408 of 2018
O R D E R
SUDHI RANJAN MISHRA, MEMBER (J):
The short facts of the case are that after being successful in a positive act of selection, the applicant was appointed on probation for two years to the post of MTS purely on temporary basis vide order dated 14.03.2018 with the conditions as under:
"1) The appointment is purely temporary subject to the provisions of CCS (Temporary Services) Rules, 1965 as amended from time to time and will not confer any title for permanent appointment.
2) The candidate will be under probation for a period of two years. The clearance of probation period will be reviewed by Departmental Confirmation Committee after two years.
3) The conditions of the service will be governed by the relevant rules and orders in force from time to time.
4) The appointment may be terminated by a month's notice in writing either by appointing authority or by any other competent authority. The appointing authority, however, reserves the right of terminating the services of the appointee forthwith or before the expiry of stipulated period of notice by making payments to him/her a sum equivalent to the pay and allowances for the period of notice or un-expired period thereof, if any, if the terms and conditions are not fulfilled.
5) The appointment carries with it the liabilities to serve in any part of the Division and special circumstances, in any part of India. The appointee shall be liable for field service in time of war or national emergencies.
6) The appointment is not covered by existing system of "Defined Benefit Pension" and he/she will be governed by the New 3 O.A.No. 260/00408 of 2018 Pension Scheme introduced as per notification of the Ministry of Finance, Department of Economic Affairs (ECB& PR Dn) resolution No. 5/7/2003-EDC & PR dated 10.10.2003 communicated vide, No.4-28/03-pen dated 17.12.2003 of Ministry of Communications & IT, Department of Posts, India effective from 01.01.2004. In short, he/she is not governed by the existing CCS (Pension) Rules. But, 10% of pay plus DA paid to him her or the amount prescribed by the Govt. Of India from time to time will be recovered by the drawing officer as monthly contribution for pensionary benefits which will commence from the salary for the month following the month of appointment.
7) The appointment is provisional subject to satisfactory completion of prescribed training and the certificates being verified through proper channels. If the verification reveals that the claim of the candidate belonging to Scheduled Caste/Schedule Tribe/Other Backward Classes (not belong to creamy layer) is false or educational certificates are not genuine or found unfit on Police verification his/her services shall be terminated forthwith without assigning any further reasons and without prejudice to such action as may be taken under the provisions of Indian Penal Code for production of false certificate.
8) If the appointment is under Ex-servicemen quota, fixation of pay is regulated in accordance with the order contained in MOF O.M. No.8(34)-Estt-/57 dated 25.11.58 and FG(8) E-III/03 dated 11.04.1963 as amended from time to time. The option is to be exercised within three months from the date of appointment.
2. The applicant joined the post of MTS on 16.03.2018. Police verification report was received wherein it was intimated that the applicant was involved in Rampur PS Case No. 08 dated 29.03.2000, u/s 148/ 341/ 294/ 307/ 302/ 324/ 325/ 336/ 427/ 149 IPC and the case is subjudice in the court of law. It was found that the applicant had suppressed the above fact in his Attestation Form in para 15. 4 O.A.No. 260/00408 of 2018 Accordingly, Sr. Suptd. RMS 'N' Division, Cuttack issued show cause notice dated 16.07.2018 (A/3) to the applicant. Applicant submitted his reply on 30.07.2018 stating therein that he did not suppress anything relating his involvement in Rampur PS Case No. 08 dated 29.03.2000, u/s 148/341/294/307/302/324/ 325/ 336/ 427/ 149 IPC, which is subjudice in the court of law but he did not fill up the column at para 15 on the ground that he was released on bail by the order of the Hon'ble High Court of Orissa dated 22.03.2004 in Misc. Case No. 84/2004 arising out CRLA No. 49 of 2004 and out of fear that if he mentions the same, he will automatically be disqualified. He has accordingly prayed to allow him to continue in service till the criminal case is finalized with undertaking that in the event he is convicted, he will not claim any right to continue in the post. The Sr. Suptd. RMS 'N' Division, Cuttack considered the matter in its entirety and terminated the services of the applicant with immediate effect vide order dated 16.08.2018. Full text of the order is quoted herein below:
"Sri Binod Bisi was come out successful in the Direct Recruitment Examination for MTS of Odisha Cirele for the year 2015-16 and 2016-17 under open market quota held on 17.09.2017 and allotted to RMS "N" Dvision, Cuttack against PH(OH) Category vide CO memo No. RE/30-13/2017 (Open Market)/Ch.1 dated
03.01.2018 and 18.01.2018 with instruction for offer of provisional appointment by observing usual formalities. Accordingly. Sri Bisi was intimated about his provisional 5 O.A.No. 260/00408 of 2018 selection for the post of MTS subject to satisfactory verification of certificate regarding date of birth, educational certificates relating to essential qualifications as on the date prescribed in the notice of the examination, community certificate, police verification report and other certificates vide this office memo No. B/8-2/2009/Ch-IV dated 19.01.2018.
In obedience to this office memo No. B/8-2/2009/Ch-IV dated 19.01.2018, Sri Bisi was attended this office on 05.02.2018 with requisite documents along with two sets of attestation forms duly filled in for necessary verification at this end and subsequently. Sri Bisi was provisionally appointed and posted as MTS to work under HRO RMS "N" Division, Cuttack vide this office memo No. B/S-2/2009/Ch-IV dated 14.03.2018 subject to conditions that "the appointment is provisional subject to satisfactory completion of prescribed training and the certificates being verified through proper channels. If the verification reveals that the claim of the candidate belonging to Scheduled Caste/Scheduled Tribe/Other Backward Classes (not belong to creamy layer) is false or educational certificates are not genuine or found unfit on police verification his/her services shall be terminated forthwith without assigning any further reasons and without prejudice to such action as may be taken under the provisions of Indian Penal Code for production of false certificate".
Thereafter, the two(02) sets of attestation forms of Sri Binod Bisi were sent to the Collector-Cum-District Magistrate, Subarnapur, Dist- Subarnapur for verification of character and antecedent of Sri Bisi at their end vide this office letter No.B/8-2/2009/Ch-IV dated 01.03.2018 and subsequently, the police verification report of Sri Bisi was received from the Additional District Magistrate, Subarnapur at this end on 03.05.2018 vide letter No.4445 dated 28.04.2018 wherein it is clearly mentioned that the Superintendent of Police, Subarnapur vide letter No. 1935/DIB dated 22.04.2018 has intimated that, "Sri Bisi is involved in Rampur PS Case No.08 dated 29/03/2000, u/s-
148/341/294/307/302/324/325/336/427/149 IPC and the case is under subjudice in the court of law. From the report of ADM, Subarnapur, it is revealed that Sri Binod Bisi had suppressed the above facts in his attestation form at Para No15. 6 O.A.No. 260/00408 of 2018 The charge levelled against Sri Bisi is that during document verification in connection with provisional appointment in the Cadre of MTS in RMS "N" Division, Sri-Bist had suppressed the facts regarding his involvement in Rampur PS Case No.08 dated 29.03.2000, U/S-
148/341/294/307/302/324/325/336/427/149 IPC in his attestation form as confirmed by the Additional District Magistrate, Subarnapur vide letter No.4445 dated 28.04.2018. In this connection, Sri Bisi was issued with a show cause notice to explain under which circumstances he had suppressed the facts regarding his involvement in Rampur PS Case No.08 dated 29.03.2000, U/S-148/341/294/307/302 /324 /325 /336/427/149 IPC before the appointing authority vide this office letter of even no, dated 16.07.2018. The reply dated 30.07.2018 of Sri Bisi to the show cause dated 16.07.2018 was received at this end on 30.07.2018 wherein he advances that-
1) Sri Binod Bisi didn't fill up the column at Para No-15 in the attestation form on the Ground that he is under bail from Hon'ble Odisha High Court vide order dated 22.03.2004 in Misc Case No.84/2004 w/r/t CRLA No.49 of 2004.
ii) Sri Bisi didn't not disclose the information about criminal cases pending against him, out of the fear that it may leads to disqualification of service immediately.
ii) Sri Bisi has stated that the two sets of attestation forms duly not filled in by him especially, it's Para-15 when submitted on 05.02.2018 which was accepted and received by this office, could have advised him to fill up the unfilled portions (ie Pam-15).
iv) Sri Bisi also prayed before the Competent Authority for condonation of his case and he may be allowed to continue provisionally in Govt. Service till finalization of the case as it is subjudice.
I have carefully gone through the reply to the show cause of Sri Binod Bisi dated 30.07.2018 and the same is not convincing at all. Sri Bisi has mentioned "No" and "N.A" against all the Sub-Paras of Para No-15 in the attestation form for which it is proved that he knows everything while submitting the attestation form. Again, Sri Bisi also undertakes in the attestation form that "I am fully 7 O.A.No. 260/00408 of 2018 aware that by providing false information or suppressing material information while filling this form, the authorities have full right to terminate my appointment letter and I am also liable for appropriate criminal/civil action as a consequence". Sri Bisi is fully aware of the fact as mentioned in the warning section of the attestation form as under-
1. Furnishing of false information or suppression of any factual information in the attestation form should be a disqualification and is likely to render the candidate unfit for employment under the Government
2. If detained, arrested, prosecuted, bound down, fined, convicted, debarred, acquitted etc. subsequent to the completion and submission of this form, the details should be communicated immediately to the authority to whom the attestation form has been sent earlier as the case may be failing which it will be deemed to be a suppression of factual information.
3. If, the fact that false information has been furnished or that there has been suppression of any factual information in the attestation form comes to notice at any time during the service of a person his services would be liable to be terminated.
Order In view of above, it is propounded that the suppression of facts committed by Sri Binod Bisi, MTS, HRO RMS "N" Division, Cuttack knowingly deserves appropriate Criminal/Civil action. I Sri Aditya Kumar Nayak, Senior Superintendent, RMS "N" Division, Cuttack after carefully going through the evidences, available records of the case of Sri Binod Bisi ordered that the provisional appointment be terminated with immediate effect.
3. Applicant citing the result of the said criminal case, instituted against the applicant, by the order of the Hon'ble Apex Court dated 18.10.2022 in Criminal Appeal No. 1802/2022 (Arising from SLP(Crl.) No. 6917/2022) has submitted that representation dated 20.11.2022 8 O.A.No. 260/00408 of 2018 for his reinstatement to service. The said representation was considered and rejected vide order dated 02.01.2023 (A/9). Thereafter, the applicant approached this Tribunal in the present OA seeking the reliefs as under:
"This Hon'ble Tribunal be pleased to quash the letter No.B/8- 2/09/Ch-V dated 16.07.2018;
(ii) And further be pleased to set aside the order of termination dated 16.08.2018 under Annexure-A/7;
(iii) And further be pleased to direct the respondents the applicant be permitted to continue the work till disposal of the criminal appeal on provisional basis;
IV) And further be pleased to set aside the order dated 2.1.2023 passed by the Superintendent RMS 'N' Division Cuttack."
4. According to Ld. Counsel for the applicant, applicant is entitled for the aforesaid relief on the ground that the applicant is holding civil post though his appointment was provisional yet he is entitled to protection under Article 311 of the Constitution of India and, therefore, without issuing any charge sheet, supplying documents and conducting regular inquiry by giving full opportunity to the applicant, order of termination is bad in law. Non-disclosure of criminal case in the Attestation Form cannot be found faulted with because the conviction of the applicant was under challenge in CRLA No. 49/2004, the applicant was released 9 O.A.No. 260/00408 of 2018 on bail and sentence was stayed by the Hon'ble High Court of Orissa. It has been contended that when any criminal offence (minor in nature) like the case of the applicant has been instituted at the earlier stage of life, such offence/conviction shall not debar a person from appointment in govt. service is the settled position of law and, therefore, the applicant should not be ousted from service on mere ground of his conviction in a petty offence of non-disclosure of pendency of criminal case in the Attestation Form. In this regard, he has relied on the decision of the Hon'ble Apex Court in the case of T.S.Vasudavan Nair Vs. Director of Vikram Sarabhai Spare Centre & Ors, (1988) Supp SCC 795, State of M.P. Vs. Ramashanker Raghuvanshi & Anr., (1983) 2 SCC 145, Commissioner of Police, Delhi & Anr. Vs. Dhaval Singh, (1999) 1 SCC 246, Commissioner of Police & Ors Vs. Sandeep Kumar, (2011) 4 SCC 644, and Avatar Singh Vs. UOI, 2016 (8) SCC 471. Further, it is contended that the respondent authorities issued the show cause notice also considered the reply and passed the impugned order, which is contrary to the GoI, Dept. of Personnel and A.R., O.M. No. 35014/1/76- Estt.(A) dated 29.07.1976 mandating that the Disciplinary Authority should refrain from acting as the Inquiry Officer. Similarly, by placing reliance on the decision of the Hon'ble Apex Court in the case of UOI & 10 O.A.No. 260/00408 of 2018 Anr. Vs. Tulsiram patel & Ors., 1985(3) SCC 398, Chandra Prakash Shahi Vs. State of U.P., 2000)(5) SCC 151, and Nepal Singh Vs State of UP, (1985) 1 SCC 56, it is contended that compliance of natural justice and following due procedure of rule is sine qua non in the matter of imposition of punishment but in the instant case the applicant has been visited with the harsh punishment of termination without any inquiry, the order of termination is not sustainable in law. Last but not the least, it has been contended that law is well settled that if termination is attaching stigma or punitive one, in such a case, termination/dismissal of service without conducting departmental enquiry as per CCS (CC&A) Rules, 1965 is in violation of Article 311 (2) o the Constitution of India. Since the present termination is punitive in nature but without conducting any enquiry by way of giving opportunity of being heard the same is void ab initio and to buttress his claim he has placed reliance on the decisions of the Hon'ble Apex Court in the cases of State of Bihar vs Shiva Bhikshuk Mishra, (1970) 2 SCC 871; Shamsher Singh vs State of Punjab and another, AIR 1974 SC 2192; Anoop Jaiswal vs Government of India and Anr, (1984) 2 SCC 269; Nehru Yuva Kendra Sangathan vs Mehbub Alam Lasker (2008)2 SCC 479 and Union of India and Others vs Mahaveer C. Singvi, (2010) 8 SCC 220. According 11 O.A.No. 260/00408 of 2018 to the learned counsel for the applicant that since the termination without following the procedure provides in the rules and mandate enshrined under Article 14, 16 and 311 of the Constitution of India, judicial interference in the matter is called for.
5. Respondents filed their counter contesting the case of the applicant, which has been reiterated by the Ld. Counsel for the respondents in course of hearing stating inter alia that the applicant in the Attestation Form had specifically furnished the undertaking that information furnished, if found falls or suppression of information, the authorities will have full right to terminate his appointment and he is also liable for appropriate criminal/civil action as a consequence. In the offer of appointment dated 14.03.2018 it was also specifically mentioned that his appointment is purely temporary and that he will be on probation for two years, which is terminable by a month's notice in writing either by appointing authority or by any other competent authority. It was further mentioned that such appointment is provisional subject to satisfactory completion of prescribed training and the certificates being verified through proper channels. If on verification it reveals that the certificate produced by him is false or he is found unfit on Police verification his services shall be terminated forthwith 12 O.A.No. 260/00408 of 2018 without assigning any further reasons and without prejudice to such action as may be taken under the provisions of Indian Penal Code. Accordingly, after the joining of the applicant, two sets of Attestation Forms were sent to the Collector-cum-District Magistrate, Subarnapur, for verification of applicant's character and antecedent vide letter dated 01.03.2018. Subsequently, police verification report of the applicant was received from ADM, Subarnapur on 03.05.2018 vide letter dated 28.04.2018 where it was clearly mentioned that the applicant is involved in Rampur PS Case No. 08 dated 29.03.2000, u/s 148/ 341/ 294/ 307/ 302/ 324/ 325/ 336/ 427/ 149 IPC and the case is subjudice in the court of law. On verification of record, it was found that in Attestation Form the applicant did not disclose the said fact. He was issued with a show cause notice dated 16.07.2018 to submit his reply on or before 31.07.2018. Applicant submitted his reply on 30.07.2018. The authority concerned considered the matter and terminated the services of the applicant with immediate effect for his conviction and suppression of material information in a well reasoned and speaking order. The applicant submitted representation enclosing thereto the order of the Hon'ble Apex Court regarding the outcome of the criminal case, which was duly considered but rejected. Thereafter, the applicant 13 O.A.No. 260/00408 of 2018 straightaway rushed to this Tribunal even without submitting any appeal against the orders referred to above. According to Ld. Counsel for the respondents the decisions relied on by the applicant have no application in the present case rather the case of the applicant is covered by the decision of the Hon'ble Apex Court in the cases of UOI Vs. B.B.Gayen, Civil Appeal No. 3407/2008 dated 09.05.2008, and R.Radha Krishnan Vs. D.G. of Police & Ors, (2008) 1 SCC 660. Since the applicant was on probation, the termination was done in accordance with the rules and after giving opportunity to the applicant and hence the provision of Article 311(2) of the Constitution as claimed by the applicant is not attracted and, thus, conducting the inquiry by issuing charge sheet etc. as provided under CCS (CCA) Rules, 1965 for permanent employees has no application at all. Lastly, it has been contended that since the applicant has been visited with the punishment as would be evident from the order of the Hon'ble Apex Court, no interference is warranted in the matter and this OA is liable to be dismissed.
6. We have considered the arguments advanced by the parties and gone through the pleadings taken in the OA, counter as well as rejoinder as also materials placed on record including the relied on decisions. 14 O.A.No. 260/00408 of 2018
7. Before going ahead to deal with the matter, we would like to place on record the provision of Temporary Service. Termination of Temporary Service has been dealt with in Rule 5 of Central Civil Services (Temporary Service) Rules, 1965 which inter alia provides as under:
"5. Termination of temporary service.
(1) (a) The services of a temporary Government servant shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant;
(b) the period of such notice shall be one month.
Provided that the services of any such Government servant may be terminated forthwith and on such termination, the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or as the case may be, for the period by which such notice falls short of one month.
NOTE:- The following procedure shall be adopted by the appointing authority while serving notice on such Government servant under clause (a).
(i) The notice shall be delivered or tendered to the Government servant in person.
(ii) Where personal service is not practicable, the notice shall be served on such Government servant by registered post, acknowledgement due at the address of the Government servant available with the appointing authority.
(iii) If the notice sent by registered post is returned unserved it shall be published in the Official Gazette and upon such publication, it shall be deemed to have been personally served on such Government servant on the date it was published in the Official Gazette.
(2) (a) Where a notice is given by the appointing authority terminating the services of a temporary Government servant, or where the service 15 O.A.No. 260/00408 of 2018 of any such Government servant is terminated on the expiry of the period of such notice or forthwith the Central Government or any other authority specified by the Central Government in this behalf or a head of Department, if the said authority is subordinate to him, may, of its own motion or otherwise, reopen the case and after making such inquiry as it deems fit-
(i) confirm the action taken by the appointing authority;
(ii) withdraw the notice;
(iii) reinstate the Government servant in service; or
(iv) make such other order in the case as it may consider proper. Provided that except in special circumstances, which should be recorded in writing, no case shall be re-opened under this sub- rule after the expiry of three months-
(i) from the date of notice, in a case where notice is given;
(ii) from the date of termination of service, in a case where no notice is given.
(b) Where a Government servant is reinstated in service under sub-rule (2) the order of reinstatement shall specify -
(i) the amount or proportion of pay and allowances, if any, to be paid to the Government servant for the period of his absence between the date of termination of his services and the date of his reinstatement; and
(ii) whether the said period shall be treated as a period spent on duty for any specified purpose or purposes."
8. It is also noteworthy to deal with the MHA Memo No. 4/10/66- Ests. (C) dated 26.8.1967, which provides that under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, the services of a temporary Government servant, who is not in quasi-permanent service, can be terminated at any time by a notice in writing given either by the Government servant who is not in quasi-permanent service to the appointing authority or by the appointing authority to the Government servant. A question has arisen whether this rule should be invoked also 16 O.A.No. 260/00408 of 2018 in the case of persons appointed on probation, where in the appointment letter a specific condition regarding termination of service without any notice during or at the end of the period of probation (including extended period, if any) has been provided. The position is that the Central Civil Services (Temporary Service) Rules, 1965, do not specifically exclude probationers or persons on probation as such. However, in view of the specific condition regarding termination of service without any notice during or at the end of the period of probation (including extended period, if any), it has been decided, in consultation with the Ministry of Law, that in cases where such a provision has been specifically made in the letter of appointment, it would be desirable to terminate the services of the probationer/person on probation in terms of the letter of appointment.
9. In the instant case, admittedly, at the time when the applicant submitted his application, criminal case was instituted and pending against him. The applicant was also arrested and detained in judicial custody. He was released on bail by the order of the Hon'ble High Court of Orissa. He had, admittedly, suppressed the said fact while submitting the application/in the Attestation Form, which came to the notice after police verification. Finally, the applicant was convicted by the Ld. 17 O.A.No. 260/00408 of 2018 Sessions Judge under section 149/323/324/325 of IPC, which order was challenged by him before the Hon'ble High Court of Orissa in CRLA No. 49/2004 dated 12.05.2022. The applicant carried the matter in appeal before the Hon"ble Apex Court, which was numbered as Criminal Appeal No. 1802/2022 (Arising from SLP(Crl.) No. 6917/2022) and disposed of on 18.10.2022. The full text of the order of the Hon'ble Apex Court is quoted herein below:
"1. Leave granted.
2. This appeal challenges the judgment and order dated 12.05.2022 passed by the High Court of Orissa at Cuttack in Criminal Appeal No.49 of 2004.
3. In Sessions Case No.60/35 of 2000 and Sessions Case No.2/8 of 2002 on the file of Additional Sessions Judge, Sonepur, Odisha, after holding the concerned accused, including the present appellant, were found guilty of offences punishable under Sections 323/149, 324/149 and 325/149 of the Indian Penal Code (for short,'IPC') and the substantive sentence to the tune of six months, one year and four years respectively on the aforesaid three counts was awarded to them.
4. The trial Court had also awarded life imprisonment for two of the accused, named Bibha and Khema and for the offence punishable under Sections 302/34 IPC.
5. The conviction and sentence so recorded in respect of offences punishable under Sections 323/149, 324/149 and 325/149 IPC was not challenged by the State Government but was challenged by the present appellant.
6. After considering the rival submissions, the High Court dismissed the appeal and thereby affirmed the conviction and sentence recorded against the appellant.18 O.A.No. 260/00408 of 2018
7. According to the record, the appellant was stated to be armed with a Lathi, which was used by him in the transaction. It is also matter of record that the appellant has physical disability and has undergone 18 months of actual imprisonment. In effect, the appellant has undergone the sentence awarded to him for the offences punishable under Sections 323/149 and 324/149 IPC.
8. Considering the totality of circumstances on record, including the physical disability of the appellant, in our view, the appellant is entitled to be granted benefit of reduction in sentence in respect of offence punishable under Section 325/149 IPC to the sentence already undergone. Ordered accordingly.
9. The appellant be set at liberty unless his presence is required in connection with any other case.
10. With these observations, the appeal is allowed to the aforesaid extent."
10. It is also not out of place to mention that S.323 IPC provides the punishment for voluntarily causing hurt, stating that, "Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both". Section 324 of IPC : voluntarily causing hurt by dangerous weapon or means:- "Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any 19 O.A.No. 260/00408 of 2018 heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." S.325. Punishment for voluntarily causing grievous hurt.--Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine and S.149 IPC provides that " every member of unlawful assembly guilty of offence committed in prosecution of common object.-If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly known to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.".
11. According to the Ld. Counsel for the applicant, though Hon'ble Apex Court intended to make the applicant scoatfree but for the reason of his undergoing imprisonment of 18 months, his conviction was 20 O.A.No. 260/00408 of 2018 reduced. Therefore, in the aforesaid circumstances, the conviction is no conviction and taking into consideration the condition of the applicant order of termination for such petty offence is bad in law. This assertion of the applicant is found to be not correct. The order of the Hon'ble Apex court is very clear and in fact the conviction was confined to eighteen months imprisonment undergone by the applicant. Hence, it can safely be accepted that the criminal case instituted against the applicant ended with imposition of punishment.
12. We have considered the next submission of the Ld Counsel for the applicant that the conviction of the applicant was under challenge in CRLA No. 49/2004 and he was released on bail and sentence was stayed by the Hon'ble High Court of Orissa. The offence being petty in nature and committed at the earlier stage of life, thus non-disclosure of pendency of criminal case in the Attestation Form ought not to have debarred him from employment and gone through the decisions relied on by him in the cases of T.S.Vasudavan Nair (supra) Ramashanker Raghuvanshi & Anr., (supra) Dhaval Singh, (supra) Sandeep Kumar, (supra) and Avatar Singh (supra) and find that the facts and issues in the aforesaid cases vis a vis the case in hand are quite different and distinct especially in none of the cases the applicants therein were 21 O.A.No. 260/00408 of 2018 convicted under the provisions of IPC as in the instant case. Thus, this argument of the applicant falls to the ground.
13. Similarly, we find that the GoI, Dept. of Personnel and A.R., O.M. No. 35014/1/76-Estt.(A) dated 29.07.1976 relied on by the applicant has no application to the present case at all because in the instant case, the procedure of the inquiry provided under CCS (CCA) Rules, is not attracted. Hence, the decisions relied on by the applicant in the cases of Tulsiram patel & Ors., (supra) Chandra Prakash Shahi (supra)and Nepal Singh (supra) have no application to the present case especially because the applicant was on probation and appointed purely on temporary basis with specific conditions accepted by the applicant, which was not the cases in the relied on decision. Last argument of the Ld. Counsel for the applicant is that the applicant being a punitive one ought not to have been imposed without thorough inquiry. We have considered this point with reference to the decisions relied on by him in the cases of Shiva Bhikshuk Mishra, (supra), Shamsher Singh (supra), Anoop Jaiswal (supra), Mehbub Alam Lasker (supra) and Mahaveer C. Singvi (supra) and find that the termination of the applicant was based on the conditions stipulated in the offer of appointment because of suppression of material fact, which cannot be 22 O.A.No. 260/00408 of 2018 treated to be a punitive one. Thus, the decisions relied on by the applicant being different and distinct both on facts and issues, have no application to the case in hand. Rather, we find that the decision in the case of B.B.Gayen (supra) finds force and an excerpt from it reads as under:
"We find that the observations in the above cited case are fully applicable to the present matter as well. We are of the opinion that it was a deliberate attempt on the part of the respondent to withhold relevant information and it is this omission which has led to the termination of his service during the probation period. The question of any penal consequences or a reading of the principles of natural justice in such a situation cannot be countenanced. The mere fact that the respondent has been subsequently discharged in the criminal cases will not in any way absolve him of his liability to have filled in the attestation form correctly and accurately as on the date he had done so. We accordingly allow the appeal, set aside the impugned judgments and dismiss the writ petition.)
14. We are reminded by the decision of the Hon'ble Apex Court in the case of Kendriya Vidyalaya Sangathan & Ors. v. Ram Ratan Yadav, (2003) 3 SCC 437, where a question arose as to suppression of material information relating to character and antecedents. In clause 4 of the offer of appointment offered to Physical Education Teacher, it was mentioned that suppression of any information will be considered a major offence for which the punishment may extend to dismissal from service. In R. Radhakrishnan v. Director General of Police and Others, (2008) 1 SCC 660, Hon'ble Apex Court considered the case of a 23 O.A.No. 260/00408 of 2018 candidate for appointment as a Fireman who had furnished wrong information about his involvement in a criminal case, though he was acquitted. This Court held that the standards expected of a person intended to serve in such a service are different from the one of the persons who intended to serve in other services. It was also concluded that the candidate knew and understood the implications of the omission in his statement to disclose vital information. The candidate by not disclosing his involvement in a criminal case, prevented the authority from verifying his character as a suitable appointment. The Court, therefore, declined to exercise its equitable jurisdiction in favour of such a candidate who had suppressed such material facts. In the case of Jainendra Singh v. State of U.P., (2012) 8 SCC 748, the Hon'ble Apex Court has observed and held that "a candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services. It was further observed that the person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service. It was also observed and held that the standard expected of a person intended to serve in 24 O.A.No. 260/00408 of 2018 uniformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted. In State of A.P. Vs. B. Chinnam Naidu, (2005) 2 SCC 746, the Hon'ble Court observed that the object of requiring information in the attestation form and the declaration thereafter by the candidate is to ascertain and verify the character and antecedents to judge his suitability to enter into or continue in service. It is further observed that when a candidate suppresses material information and/or gives false information, he cannot claim any right for appointment or continuance in service.
15. Further, it is seen that the applicant has himself admitted that he did not disclose in the Attestation Form about his involvement in the criminal case out of fear of his automatic disqualification. We do remember a well known proverb that one man's food is other man's poison, meaning thereby that had the applicant not suppressed he would not have been selected and in his place another person could have taken the berth, which is clearly applicable to the present case. Further, it is well settled law that he whoever comes with clean hands is entitled to equity. Here in this case the very approach and intention of 25 O.A.No. 260/00408 of 2018 the applicant is proved to be ulterior and hence the termination of his service being done based on rules after giving him show cause notice and as per the conditions stipulated in his offer of appointment, no lenient view in the facts and circumstances is called for.
16. Resultantly, this OA fails and is accordingly dismissed. Parties to bear their own costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS