Calcutta High Court (Appellete Side)
Bibrata Biswas vs Union Of India & Ors on 11 December, 2019
Author: Amrita Sinha
Bench: Amrita Sinha
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :- Hon'ble Justice Amrita Sinha
WP No. 26379 (W) of 2016
Bibrata Biswas
Vs.
Union of India & Ors.
For the writ petitioner :- Mr. Achin Kumar Majumder, Adv.
Mr. Pratik Majumder, Adv.
For the Railway :- Mr. Sourav Mondal, Adv.
Heard on :- 08.11.2019
Judgment on :- 11.12.2019
Amrita Sinha, J.:-
The petitioner was a constable recruit in the Eastern Railway.
The petitioner applied for the job in response to the Employment Notice
no. 1/2011. After being successful in the selection he was sent for initial
training on 1st November, 2014 and the training completed on 15th June, 2015.
The petitioner was directed to report at the RPF, Eastern Railway Head
Quarter, Kolkata on 25th June, 2015.
By a communication dated 11th August, 2015 the petitioner was
discharged from enlistment as it was revealed that he did not disclose the
criminal cases that were pending against him in the attestation form dated 24th
June, 2014 which was submitted by him during the viva voce test. The
respondents invoked the provision of Rule 67.2 of the RPF Rules, 1987 and
discharged him from enlistment with immediate effect as the action of the petitioner amounted to submitting false declaration in his attestation form. The detail of the criminal case pending against the petitioner was mentioned in the discharge letter.
2
The petitioner submits that some times in the year 2007 a complaint was lodged against his family members on the allegation of cutting down of paddy from land. On the basis of the said complaint the police registered a case under Section 447/448/323/325/506/34 of the Indian Penal Code. A charge sheet was submitted, a full-fledged trial was held and by a judgment dated 2nd December, 2015 the learned Magistrate disposed of the said case by holding that the accused persons were not found guilty of the offence and acquitted them from the said case.
The petitioner contends that the date on which the incident occurred he was a minor and he was not even aware of the court proceeding. The petitioner pleaded ignorance of the criminal case on the date he filled the declaration and attestation form. After the judgment was delivered in the criminal case the petitioner approached this court by filing a writ petition being WP No. 3226 (w) of 2016 challenging the order of his discharge. The court upon hearing the submissions of the parties passed judgment on 30th August, 2016 by disposing of the writ petition. Though the Court did not set aside the order of discharge but directed the Chief Security Commissioner to afford a personal hearing to the petitioner and to give him a chance to explain the reason for non-disclosure of his prosecution in the criminal case which ultimately led to his acquittal. The court directed that the said respondent could thereafter proceed to consider the claim of the petitioner for revocation of the order of discharge and enlistment for service having due regard to the decision delivered by the Hon'ble Supreme Court of India in the matter of Avtar Singh -vs- Union of India & Ors. [2016(7) JT 300]. The court directed that if the respondent was of the opinion that the petitioner should be enlisted for service he shall be at liberty to revoke the order of discharge and pass further appropriate order. In the event the respondent is of the view that the petitioner's conduct does not deserve revocation of the order of discharge, he shall assign reasons in support of his conclusion.
3
In compliance of the order passed by the court the petitioner was afforded an opportunity of hearing and an order was passed on 6th October, 2016. The respondent was of the opinion that the conduct of the petitioner does not deserve any sympathetic consideration in view of the fact that he himself admitted that he by mistake filled up the attestation form by declaring that no criminal case was pending against him. The respondent observed that the petitioner neither admitted his mistake previously nor he communicated the order of his acquittal from the criminal case and as such his conduct does not call for any kind of consideration where such appointment is for a disciplined force. The order of discharge was not revoked by the respondent.
The petitioner is aggrieved by the aforesaid order.
The petitioner submits that he has been arbitrarily discriminated. The petitioner has annexed a copy of a communication dated 24th February, 2004 in respect of a similarly situate constable who was discharged on the ground of suppression of fact of his involvement in a criminal case but after his acquittal from the said case he was reabsorbed and sent for training. The petitioner submits that the order passed by the respondent suffers from non-application of mind as the case of the petitioner has been considered mechanically, without proper appreciation of the principle laid down by the Hon'ble Supreme Court in the matter of Avtar Singh (supra).
It has been argued that the respondent authority ought to have taken note of the age of the petitioner on the date of the incident and ought to have appreciated that the issue related to cutting of paddy in the field. The offence is extremely petty and the petitioner should not be made to suffer because he has already been acquitted from the charges levelled against him.
The petitioner relies upon the decision delivered by the Full Bench of the Supreme Court in the case of Avtar Singh -vs- Union of India & Ors. reported in AIR 2016 SC 3598 paragraphs 22, 26, 27 and 30, Md. Imran -vs- State of Maharashtra & Ors. reported in AIR 2018 SC 4895 paragraphs 10 4 and 11, Commissioner of Police & Ors. -vs- S. Kumar reported in (2011)4 SCC 644 paragraphs 8, 9, 10 and 12 and Joginder Singh -vs- Union Territory of Chandigarh reported in (2015)2 SCC 377 paragraphs 24 25 and 26 in support of his case.
The petitioner prays for setting aside of the impugned order dated 6th October, 2016 passed by the Inspector General cum Chief Security Commissioner, RPF, Eastern Railway, Kolkata.
The respondents have opposed the prayer of the petitioner. The respondents rely upon the clauses mentioned in the Employment Notice which clearly mention that false declaration is an offence under law and will lead to disqualification of the applicant, institution of criminal case and also dismissal from service. The applicants were advised to be careful while filling in the application form. Instruction mentioned in the attestation form clearly stated that furnishing of false information or suppression of any factual information in the attestation form would be a disqualification and is likely to render the candidate unfit for employment under the Government. 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 the notice at any time during the service period of a person, his service would be liable to be terminated.
The respondents rely upon Rule 52.1 of the RPF Rules, 1987 according to which as soon as a recruit is selected but before he is formally appointed in the Force, his character and antecedents are verified in accordance with the procedure prescribed by the Central Government. According to Rule 67.2 a direct recruit selected for being appointed as enrolled member, till such time he is not formally appointed to the Force, is liable to be discharged at any stage if the Chief Security Commissioner for reasons to be recorded, deems it fit, so to do in the interest of the Force.
5
It has been submitted that after the petitioner was selected for appointment his character and antecedents were verified. At the time of police verification it was revealed that a criminal case was pending against him and a charge sheet had been filed. As the petitioner intentionally and deliberately suppressed the fact of his involvement in the criminal case accordingly, he became liable to be discharged on the ground of furnishing false information in his attestation form.
The respondents also rely upon Note 9 of the Employment Notice which mentions that candidates found to be having adverse report on their antecedents and character may not be appointed in RPF including RPSF. Admittedly the petitioner was involved in a criminal case and charge sheet was filed against him. The charges mentioned in the charge sheet were of a serious nature. The petitioner ought to have disclosed the same in the declaration form.
The petitioner himself admitted at the time of hearing on 6th October, 2016 that due to mistake the information regarding pendency of the police case was not mentioned in the attestation form. The action of the petitioner indicates that he deliberately suppressed the fact.
The petitioner was directly selected for training without verification of his character and antecedents but as soon as the same came to the knowledge of the authority he was rightly discharged.
The respondents deny the allegation of discrimination. It has been submitted that as proper records were not available at the time of the appointment of the said Bijendra Singh Goutam accordingly relying upon the preliminary police verification report he was discharged, but as soon as the proper report was received from the police he was reinstated. Such is not the case here. The petitioner was actually involved in the criminal case on the day when he filled up the application form and accordingly he ought not to get the benefit of the decision taken in the case of Bijendra Singh Goutam. 6
The respondents also rely upon the order delivered by the Supreme Court in the matter of Avtar Singh (supra) wherein the court observed that if the 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. As the petitioner was involved in a serious crime he does not deserve any leniency. The respondents pray for dismissal of the writ petition.
Upon hearing the submissions made on behalf of both the parties and upon perusal of the materials on records it appears that admittedly the petitioner was involved in a criminal case on the day he filled up the application form. The petitioner ought to have been careful. He has candidly submitted that he was not aware of the criminal proceeding. On the date of the incident the petitioner was a minor. From the judgment delivered by the learned Magistrate it appears that the issue revolved around cutting and stealing of paddy in a village area. An altercation took place and the parties exchanged fits and blows. As many as six witnesses were examined over the issue.
The primary allegation was against one of the family members of the petitioner and the complainant lodged complaint against all the members of the family. The ownership of the land in which the paddy grew was disputed. A civil suit was also filed in respect of the disputed property. The complainant failed to bring home the charges levelled against the accused persons. From the judgment delivered in the criminal case by the learned Magistrate it does not appear that there was any direct allegation against the petitioner. It appears that out of personal grudge and enmity between the two families the complainant lodged the complaint against all the members of the petitioner's family.
The petitioner must have been on bail on the day he filed the application form, as by the final order the Magistrate freed the accused persons from their bail bonds. Often lay-man suffer from the misconception that the moment he is 7 enlarged on bail it is the end of the case. The petitioner may have also thought the same way and was under the mistaken belief that the case was over and accordingly did not disclose the same in the declaration and attestation form.
It is common knowledge that over trivial issues complaints and counter- complaints are lodged before the police station with the sole intention to harass the opposite party. It happened in this case also. A complaint was lodged before the police station with the view to harass the family members of the petitioner. The petitioner was dragged in as an accused in the said case. There was hardly any substantive allegation against him. The police filed a charge sheet against all of them but ultimately all the accused persons were acquitted.
As the petitioner was a young lad at that point of time his family may not have disclosed the entire details of the criminal case to him. It is not unusual for the family to safeguard their children from being involved and exposed to criminal proceeding. The family may have, keeping the future of the child in mind, concealed the fact of his involvement in and pendency of the criminal case, because of which, the child, the petitioner herein, never got to know about his name being recorded in the criminal register.
It appears from the judgment of the Magistrate that the accused persons were not even called upon to depose as the complainant failed to prove the allegations lodged in the complaint.
Should in such a situation, figuring of the name in the criminal register be of such consequences that the future of a person be ruined? Should the petitioner suffer only because his name figured in the list of accused persons in a criminal case? Will it not amount to disproportionate punishment?
It may also happen that the petitioner was aware that a criminal case was pending against him and he has deliberately suppressed it, as he knew and was sure that had he disclosed the fact of his involvement in the criminal case he would have been eliminated at the very initial stage. In these hard days of unemployment the youth is starving for a job. The petitioner possibly did not 8 realise that non-disclosure of his involvement in the criminal case would be detected and would cost him the job which he was running after. May be he was under the wrong impression that his involvement will go undetected. Possibly, the petitioner could not take the risk of disclosing the truth.
Though the action of the petitioner cannot be supported and the court firmly believes that a candidate should be truthful and honest and all the particulars ought to have been correctly filled up in the application form, but at the same time can the offence of non-disclosure committed by the petitioner be considered to be so grave so as to cost him a government job more so, when the petitioner was acquitted from the case?
"To err is human". The petitioner admitted that he made a mistake by not disclosing the relevant information, but can the mistake committed by the petitioner not be condoned considering the trivial nature of allegation levelled against him?
The Hon'ble Supreme Court in the matter of Avtar Singh (supra) held that in case offence is petty in nature, committed at young age and has been acquitted the employer may ignore lapse of suppression on due consideration of various aspects. The Court clarified that if the 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.
In Mohammed Imran (supra) the court was of the opinion that the rejection of the candidature was afflicted by myopic vision, blurred by the spectacle of what has been described as moral turpitude, reflecting inadequate appreciation and application of facts, as justice may demand.
The Court in the earlier writ petition filed by the petitioner directed the Chief Security Commissioner to consider the claim of the petitioner giving due regard to the decision in Avtar Singh (supra). The said respondent at the time of consideration of the case of the petitioner applied the negative test to reject 9 the case of the petitioner without appreciating the positive approach laid down by the Supreme Court in the said case.
The respondent failed to consider the trivial nature of the case, the age of the petitioner on the date of the alleged incident, the fact that a civil case was pending in between the warring parties with regard to the ownership of the disputed land, that the criminal case was filed against the entire family of the petitioner, no direct allegation against the petitioner, none of the accused were called upon to depose, the complainant failed to prove the charge and most importantly the dismissal of the criminal case and acquittal of the petitioner therefrom. All the above factors are extremely vital for the purpose of assessing the claim of the petitioner. Each case has to be decided upon its own facts and adjudicated on merits.
The impugned order recorded that the petitioner never communicated his acquittal from the criminal case without appreciating the fact that the petitioner was discharged from service on 11th August 2015 whereas he was acquitted on 2nd December 2015, i.e. the petitioner never had the opportunity to rely upon the judgment of his acquittal as the same was passed after he was discharged from service. The said judgment of acquittal however was on record in the earlier writ petition filed by the petitioner.
The fact that the petitioner was selected following a regular selection process and that he is otherwise eligible to be appointed in the post of constable cannot be ignored. Snatching away the job from him on account of non-disclosure of his involvement in the criminal case amounting to false declaration even though he was not directly involved and thereafter subsequently acquitted therefrom, in my opinion, will be a bit too harsh.
Antecedents of recruits are verified not with a view to dig out past involvements and rejecting the claim of successful candidates but to check the character and suitability of a candidate, whether the candidate is a habitual offender or whether the candidate would be a liability rather than an asset of 10 the employer. Now that the details of the criminal case are on record the employer is liable to take a call whether to recruit the petitioner or to brand him as a criminal and dishonest person and stand by the decision to discharge him from service. The case of the petitioner requires a positive consideration, but at the same time, not to give the message that this type of lapse deserves to be ignored.
The allegation of discrimination made out by the petitioner does not appear to be convincing.
In view of the discussions made herein above the impugned order dated 6th October 2016 is set aside. The instant writ petition is disposed of directing the Chief Security Commissioner to reconsider the case of the petitioner objectively upon proper application of mind as to whether the lapse on the part of the petitioner can be discounted on the facts and circumstances of the instant case. The said respondent shall pass a reasoned order in the matter within a period of eight weeks from the date of communication of this order and shall communicate the reasoned order to the petitioner within a fortnight thereafter. It is made clear, that in the event the respondent opines in favour of the petitioner, then he will not be entitled to any past service benefits, but will be entitled to benefits from a prospective date, as penalty on account of the lapse of non-disclosure on his part.
WP No. 26379 (w) of 2016 disposed of.
Urgent certified photocopy of this judgment, if applied for, be supplied to the parties or their advocates on record expeditiously on compliance of usual legal formalities.
(Amrita Sinha, J.)