Calcutta High Court (Appellete Side)
Bibrata Biswas vs Union Of India & Ors on 30 August, 2016
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT : Hon'ble Justice Dipankar Datta
W.P. No. 3226 (W) of 2016
Bibrata Biswas
v.
Union of India & ors.
For the petitioner : Mr. Achin Kumar Majumder, Advocate,
Mr. Pratik Majumder, Advocate.
For the respondents : Mr. Swapan Banerjee, Advocate,
Mr. Arunava Ganguly, Advocate.
Hearing concluded on : August 9, 2016 Judgment on : August 30, 2016
1. The petitioner was selected for recruitment as a constable of Railway Protection Force (hereafter the R.P.F.). It is claimed in the writ petition that after such selection, the petitioner was sent for training to Hyderabad on November 1, 2014, and upon successful completion of training he was directed to report to the office of the Chief Security Commissioner, R.P.F. on June 25, 2015 by an order dated June 18, 2015. Although the petitioner has pleaded that he had duly reported on June 25, 2015 in the office of the Chief Security Commissioner, there is no pleading as to what transpired till August 11, 2015 with regard to his formal induction into the R.P.F. On August 11, 2015, the petitioner received a communication from the Staff Officer attached to the office of the Chief Security Commissioner reading as follows:
"In the Attestation Form dated 24.06.2014 submitted by you, it was declared that you have not ever been prosecuted but on receipt of Police Verification Report it is seen that Dhantala Police case No. 282/07 dated 23.09.2007 U/S 447/448/379/411/427/323/325/307/506/120B/34 IPC was registered against you and Police has submitted Charge Sheet against you vide No. 292/07 dated 27.10.07 U/S 447/448/323/325/506/120B/34 IPC and the case is subjudice in the Ld. Court of ACJM/Ranaghat.
Your above act of not disclosing pending police case in Attestation Form dated 24.06.2014 submitted during Viva-Voce tantamounts to 'False Declaration'. Hence, in terms of Rule 67.2 of RPF Rules 1987, the competent authority has discharged you from enlistment for the post of Constable in RPF/Eastern Railway vide EN-01/2011 with immediate effect. In view of the above, you are directed to deposit all the accoutrements issued during course of training to this office immediately. Please acknowledge the receipt."
Such order of discharge is assailed by the petitioner by presenting this writ petition dated February 22, 2016.
2. Mr. Majumder, learned advocate representing the petitioner invited the attention of the Bench to the judgment and order dated December 2, 2015, passed by the Judicial Magistrate, 3rd Court, Ranaghat, in connection with G.R. Case No. 1333 of 2007 arising out of Dhantala P.S. FIR No. 282/07 dated September 23, 2007 under sections 447/448/379/411/427/323/325/307/506/120B/34 IPC, and contended that the petitioner and the other three accused were acquitted under section 248(1) of the Criminal Procedure Code. According to him, the action of the respondents in not affording the petitioner an opportunity of hearing prior to ordering discharge as well as not considering his suitability for the post for which he was selected rendered the same indefensible and that having regard to the recent decision of the Supreme Court reported in 2016 (7) JT 300 (Avtar Singh v. Union of India & ors.), the impugned order ought to be set aside and the respondents directed to reconsider the desirability of retaining the petitioner in service in accordance with law and in the light of the observations in Avtar Singh (supra).
3. Attention of the Bench was also drawn to a letter dated February 24, 2004, issued by the Under Secretary, Railway Board to the Commanding Officer, 2BN/Railway Protection Special Force, Gorakhpur. Referring to the case of one constable recruit, Shri Bijender Singh Gautam, discharged by an order dated January 28, 2002, it appears that his case being sympathetically considered upon his acquittal in the criminal case, which was suppressed while filling up the attestation form, an order was issued to send him for further training in the next batch subject to his fulfilling other conditions. Mr. Majumder contended that a subsequent acquittal has been considered to be an important factor for reversing an earlier order of discharge from service and that the petitioner may be directed to be accorded similar treatment.
4. Per contra, Mr. Banerjee, learned advocate for the respondents contended that the conduct of the petitioner is such that his case does not deserve any further consideration worth the name. It was contended that the petitioner having suppressed the fact of his prosecution before the criminal court in the attestation form being an admitted fact, and no explanation having been furnished in the writ petition regarding omission to disclose the same, he is not entitled to invoke the equity jurisdiction of this Court. It was further contended that the petitioner was seeking employment in a disciplined force and, therefore, very high standard of integrity is required to be maintained by him not only when he is in service but also at the time of applying for public employment. The petitioner having practiced fraud by suppressing a material fact, it was further contended that the decision in Avtar Singh (supra) does not come to his rescue.
5. Finally, it was contended by Mr. Banerjee that the role to be played by the relevant rules in a serious matter like this cannot be ignored. Referring to Rule 67.2 of the Railway Protection Force Rules, he contended that power has been conferred on the Chief Security Commissioner to discharge a direct recruit at any stage if it is deemed fit in the interest of the R.P.F. but only upon recording reasons in writing. According to him, the reasons appearing in the impugned communication is sufficient to negate the claim of the petitioner and, therefore, no interference is called for. He, accordingly, prayed for dismissal of the writ petition.
6. After hearing the learned advocates for the parties, this Bench is of the considered view that a proper decision on the writ petition would require meticulous consideration of the law laid down in Avtar Singh (supra), which was rendered on a reference for resolving the conflict of opinion in various decisions of Division Benches of the Supreme Court as noticed in the decision reported in (2012) 8 SCC 748 (Jainendra Singh v. State of U.P.).
7. After a survey of all the decisions on the point, either for or against automatic termination arising out of suppression/non-disclosure of involvement in criminal case, the Supreme Court had the occasion to observe as follows:
"26. No doubt about it that verification of character and antecedents is one of the important criteria to assess suitability and it is open to employer to adjudge antecedents of the incumbent, but ultimate action should be based upon objective criteria on due consideration of all relevant aspects.
27. Suppression of 'material' information presupposes that what is suppressed that 'matters' not every technical or trivial matter. The employer has to act on due consideration of rules/instructions if any in exercise of powers in order to cancel candidature or for terminating the services of employee. Though a person who has suppressed the material information cannot claim unfettered right for appointment or continuity in service but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity having due regard to facts of cases.
27. *****
28. What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by concerned authorities considering post/nature of duties/services and power has to be exercised on due consideration of various aspects.
29. The 'McCarthyism' is antithesis to constitutional goal, chance of reformation has to be afforded to young offenders in suitable cases, interplay of reformative theory cannot be ruled out in toto nor can be generally applied but is one of the factors to be taken into consideration while exercising the power for cancelling candidature or discharging an employee from service.
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:
(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.
(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.
We answer the reference accordingly. Let the matters be placed before an appropriate Bench for consideration on merits."
8. A reading of the aforesaid extract reveals that automatic termination of service on the ground of suppression/non-disclosure of involvement in a criminal case may not be the proper course to be followed in each and every case. The Supreme Court has stressed on the ultimate action being based upon objective criteria on due consideration of all relevant aspects, which would include affording a chance of reformation to young offenders in suitable cases as well as the fact that there has not been deliberate suppression of fact with respect to multiple pending cases, suppression whereof by itself would assume significance authorizing the employer to pass an appropriate order canceling the candidature or terminating the service of the concerned individual.
9. Turning to the facts of the present case, it appears that the subject FIR was registered on September 23, 2007. From the affidavit dated February 9, 2016 accompanying the writ petition, it appears that the petitioner is aged about 25 years. Such declaration of age has not been disputed by Mr. Banerjee. Proceeding on the basis that the petitioner was aged about 25 years on the date of affirmation of the affidavit, a simple arithmetical calculation would lead to the conclusion that he was a juvenile on the date the FIR was registered and he was around 23/24 years of age as on date of submission of the attestation form which he submitted on June 24, 2014.
10. In the absence of any pleading in the writ petition as to why the petitioner did not disclose pendency of the criminal case in the attestation form, it is difficult to arrive at any conclusion as to whether the fact of his prosecution was suppressed deliberately or it was a human failing on his part of not being able to recollect all relevant facts leading to a non-disclosure, which was completely unintentional. To the mind of this Bench, the very fact that the petitioner had not disclosed prosecution in a single case which might have been registered against him at a time when he was a juvenile, further that while filling up the attestation form he was not of too mature an age; and also that he has subsequently been acquitted, are extenuating factors that need to be considered by the respondents objectively, a couple of which unfortunately were not considered at the time of discharging the petitioner from service in August, 2015.
11. However, the entire facts and circumstances leading to issuance of the order dated February 24, 2004 by the Under Secretary in the case of Shri Bijender Singh Gautam not being available, this Bench is unable to accept Mr. Majumder's contention that the respondents should similarly treat the petitioner by revoking the order of discharge and enlisting him for service.
12. For the foregoing discussions, this Bench is minded to dispose of the writ petition with directions. The order of discharge is not set aside. However, the Chief Security Commissioner, respondent no. 3, shall put the petitioner on notice for a personal hearing in the former's office within 3 (three) weeks from date of receipt of a copy of this judgment and order. The petitioner shall be given a chance to explain the reason for non-disclosure of his prosecution in the criminal case which, ultimately, led to his acquittal. The respondent no. 3 shall then proceed to consider the claim of the petitioner for revocation of the order of discharge and enlistment for service giving due regard to the decision in Avtar Singh (supra). Should the respondent no. 3 be of the opinion that the petitioner should be enlisted for service, he shall be at liberty to revoke the order of discharge, as referred to in the communication dated August 11, 2015, and pass further appropriate order. In case the respondent no. 3 is of the view that the petitioner's conduct does not deserve revocation of the order of discharge, he shall be entitled to maintain such order but assign reasons in support of his conclusions. The reasons must, however, be communicated to the petitioner immediately upon consideration in terms of this order.
13. Accordingly, the writ petition stands disposed of. There shall be no order as to costs.
Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)