Chattisgarh High Court
Chamru Sai Yadav vs State Of Chhattisgarh on 24 February, 2022
Author: Arup Kumar Goswami
Bench: Arup Kumar Goswami
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Proceedings through video conferencing
WA No. 233 of 2021
Chamru Sai Yadav S/o. Premsai Yadav, Aged About 60 Years R/o
Village and Post Machadoli, Lalpur, P.O. Bango, Tahsil Katghora,
District Korba Chhattisgarh, District : Korba, Chhattisgarh
---- Appellant
Versus
1. State Of Chhattisgarh Through The Secretary Department Of Water
Resources, Mahanadi Bhawan, Atal Nagar, Nava Raipur, District Raipur
Chhattisgarh, District : Raipur, Chhattisgarh
2. Chief Engineer, Minimata (Hasdeo Project) Water Resources
Department, Bilaspur Chhattisgarh, District : Bilaspur, Chhattisgarh
3. Executive Engineer, Minimata Bango Project, Mandal Division No. 5,
Kharsiya District Raigarh Chhattisgarh, District : Raigarh, Chhattisgarh
4. Executive Engineer, Kelo Project Sarvekshan Division, Raigarh, District
Raigarh Chhattisgarh, District : Raigarh, Chhattisgarh
5. Sub Divisional Officer, Kelo Project Sarvekshan Division, Sub Division
No. 1 Lakha, District Raigarh Chhattisgarh, District : Raigarh,
Chhattisgarh
6. Collector, Raigarh District Raigarh Chhattisgarh, District : Raigarh,
Chhattisgarh
---- Respondents
(Cause-title taken from Case Information System)
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For Appellant : Mr. K.P.S. Gandhi, Adv.
For Respondents : Mrs. Meena Shashtri, Addl. Adv. General.
Reserved on 27-1-2022
Judgment delivered on 24-2-2022
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Hon'ble Mr. Arup Kumar Goswami, Chief Justice
Hon'ble Mr. N.K. Chandravanshi, Judge
CAV JUDGMENT
Per N.K. Chandravanshi, J.
1. This writ appeal has been preferred against the order dated 22-6-2021 passed by the learned Single Judge in WP(S) No. 2726/2021, whereby the writ petition filed by the appellant/petitioner (hereinafter referred to as "petitioner") was dismissed.
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2. Brief facts of the case are that, the petitioner was initially working as a daily wager in the department of Water Resources, and was subsequently regularized in service vide order dated 8-9-2008 (Annexure P-
2). On 15-3-2009, Crime No. 35/2009 for offence punishable under Section 147, 148, 149, 302, 324, 323, 506 of the Indian Penal Code, 1986 (hereinafter referred to as "IPC") was registered against the petitioner in Police Station Bango, Distt. Korba. On 19-5-2009, he was arrested by the police for aforesaid crime. He was in judicial custody from 19-5-2009 to 7-7-2009. Hence, he was placed under suspension as per sub-rule (1) and (2) of Rule 9 of CG Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as "CCA Rules"). After receiving character verification report regarding his criminal antecedent from Inspector General of Police (Intelligence), Raipur, involving moral turpitude, his services were terminated by the respondents vide order dated 20-4-2010 (Annexure P-1). As per the documents filed by the petitioner, charge sheet against him for the aforesaid offences was filed by the police in the Court of Judicial Magistrate First Class, Katghora, Distt. Korba. Subsequently, the petitioner entered into compromise with the complainant/ injured and based on that compromise, criminal case concluded against him and he was acquitted of the charges under Section 148, 324, 323, 323 read with Section 149 and 294 of the IPC, in the Lok Adalat by the Judicial Magistrate First Class, Korba, vide order dated 14-7- 2018 (Annexure P-5), as per provisions of sub-section (8) of Section 320 of the Criminal Procedure Code, 1973 (hereinafter referred to as "Cr.P.C."). Thereafter, on 27-9-2018, the petitioner filed an application before the respondents stating that since he has been acquitted by the Court of the aforesaid offences, hence, he may be taken back in service. Since, the respondents did not take any action on his application, he filed the writ petition before learned Single Judge. Learned Single Judge, after hearing both the 3 parties, dismissed the writ petition of the petitioner, observing in para 5, 6 and 8 as under :
"5. This Court is of the opinion that firstly, the writ petition is highly belated in as much as the challenge to the termination is after more than a decade. Secondly, the order of termination is only on the basis of a Police verification report received by the Department wherein it was found that the petitioner was having a criminal background, he has also remained under custody for about two months and the criminal case was pending on the date when he was regularized. Thirdly, what can also not be overlooked is the fact that the order passed in favour of the petitioner on 14.08.2018 (actual dated is 14-07-2018 i.e. date of compromise) is not after completion of the entire trial, it's an order where in the midst of a trial, the petitioner entered into a compromise with the complainant and thereafter with the leave of the Court, offences have been compounded. Though it may have an effect of acquittal in terms of the provision of Cr.P.C. but what has to be also seem is whether on the date when the impugned order (Annexure P/1) was passed, the authorities were justified in passing such an order or not. Admittedly on the date when (Annexure P/1) was passed i.e. on 20.04.2010, the petitioner had a criminal antecedent and he was involved in a criminal case for the aforesaid offences, he had been in judicial custody for a period of around two months followed by a Police verification report received by the department in respect of 4 the criminal antecedent and the petitioner having a criminal background.
6. Under the circumstances, the action on the part of the respondents when the impugned order was passed in the year 2010 can not be said to be in any manner arbitrary or malafide. Only because in the year 2018 the matter i.e. the criminal case got compounded by itself would not give rise to an occasion for challenging a termination order which was otherwise passed only on the ground of criminal antecedent. The said order can not be said to be an order of termination of service on account of his getting involved in a criminal case or having remained in judicial custody for a period of around two months. It is a case where the order of regularization in service, which was otherwise subject to verification, on verification of finding the criminal antecedent, the services have been discontinued and the same is also purely in accordance with the conditions stipulated in the order of regularization itself.
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8. For all the aforesaid reasons, this Court does not find any strong case made out by the petitioner calling for an interference with the impugned order Annexure P/1. The writ petition therefore sans merits and is accordingly rejected."
It has been observed by learned Single Judge that the view taken by him gets fortified from a decision of Hon'ble Supreme Court in State of Rajasthan Vs. Love Kush Meena [(2021) 8 SCC 774].
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3. Learned counsel for the petitioner submits that while joining on regular post of labourer, the petitioner had not suppressed any fact in his declaration, as the petitioner joined on the post of labourer on 1-10-2008 and aforesaid crime was registered against him on 15-3-2009. Thus, since at the time of joining, there was no crime registered against him, and therefore, there was no occasion for suppression of fact or submitting false declaration by the petitioner. Despite that, learned Single Judge has wrongly observed that "Criminal case was pending on the date when he was regularized." It is further submitted that the case laws of State of Rajasthan and Ors. (supra) and Avtar Singh -v- Union of India and ors. [(2016 (8) SCC 471], which have been relied upon by learned Single Judge, are not applicable in the instant case, as in those cases, acquittal was based on benefit of doubt, whereas in the instant case, the petitioner has been acquitted of charges levelled against him, on the ground of compromise between both the parties. It is further contended that in the instant case, services of petitioner have been terminated only on the ground of character verification report. By that time, no order or judgment was passed in alleged criminal case. Despite that, his services had been terminated, which is not sustainable at all. It is further submitted that the petitioner arrived at a compromise with the complainant/ injured and based on that compromise, he has been acquitted of the charges, as per mandate of sub-section (8) Section 320 of the Cr.P.C. Thereafter, he filed an application before the respondents on 27-9-2018, but as they did not take any action on it, he filed the writ petition before this Court on 3-6-2021. Therefore, the view taken by learned Single Judge regarding filing of writ petition belatedly, is also not sustainable. Hence, it is prayed that the writ appeal as well as the writ petition be allowed and the reliefs, as prayed for, be granted.
4. The respondents have filed their reply-affidavit. Learned State counsel, while referring to the reply, submits that the order of regularization of 6 petitioner (Annexure P-2) was conditional, wherein it was specifically mentioned that services of the petitioner would be subject to character verification certificate and his services can be terminated after giving one month notice or one month salary, in lieu of notice. After his joining on regular post of labourer, his character verification report was called, wherein, it was disclosed that a criminal case bearing Crime No. 35/2009 for offence punishable under Section 147, 148, 149, 323, 324, 294, 506(B), 302 of IPC has been registered against the petitioner and 7 others, and charge sheet has been filed, which is pending trial. In view of said character verification report, the petitioner was not found fit for government service, hence, his services were terminated, as per conditions stipulated in his order of regularization. It is further submitted that after about more than 11 years of issuance of termination order (Annexure P-1), the petitioner has challenged the validity of the said order belatedly, that too, after getting acquittal based on compromise, which cannot be termed as "honourable/clean acquittal". It is further submitted that learned Single Judge, considering all above facts, declined to grant relief to the petitioner, which does not call for any interference of this Court and the writ appeal is liable to be dismissed.
5. We have heard learned counsel for both the sides and perused the materials available on record.
6. Perusal of order of regularization dated 8-9-2008 (Annexure P-2) demonstrates that service of the petitioner was regularized under the conditions stipulated in Annexure P-2, wherein, amongst other conditions, it was also a condition that credential / character verification report would be called and his services can be terminated after giving one month notice or one month salary, in lieu of the notice. It is also not in dispute that, as per service book (Annexure R-2) of the petitioner, he joined on 1-10-2008 as a regular labourer and after his joining, Crime No. 35/2009 for offence punishable under 7 Section 147, 148, 149, 302, 324, 323, 506 of IPC was registered against him (and 7 others) in Police Station Bango, Distt. Korba on 15-3-2009. Thus, alleged crime has been registered against him after his joining on the aforesaid post. Therefore, the observation made by learned Single Judge that "criminal case was pending on the date when he was regularized" is not correct.
7. As per Annexure R-2 and Annexure P-4, the petitioner was in judicial custody from 19-5-2009 to 7-7-2009, hence on 14-10-2009, he was placed under suspension under sub-rule (1) and (2) of Rule 9 of CCA Rules. Thereafter, character verification report of the petitioner was received by the respondents from Inspector General of Police, (Intelligence), Raipur, CG, wherein it was disclosed that there is criminal case pending against the petitioner. Therefore, noting implication of petitioner in offence involving moral turpitude and criminal antecedent, his services were terminated vide order dated 20-4-2010 (Annexure P-1), after one month from issuance of the order.
8. In the instant case, services of the petitioner have been terminated on the basis of negative character verification report. Vide order dated 14-7-2018, the petitioner has been acquitted from the charges under Section 148, 324, 323, 323 read with Section 149 and 294 of the IPC, on the basis of compromise. Meaning thereby, acquittal of the petitioner was not based on examination of all material witnesses or full trial of the case, therefore, his acquittal cannot be termed as "honourable/clean acquittal". The decision of Criminal Court on the basis of compromise or an acquittal on the basis of compromise cannot be treated that the candidate possesses good character, which may make him eligible for appointment, as the criminal proceedings are with the view to find culpability of commission of offence, whereas the appointment to the civil post is in view of his suitability to the post. The test for each of them is based upon different parameters and 8 therefore, acquittal in a criminal case is not a certificate of good conduct to a candidate. In such a situation, competent authority has a right to take a decision in respect of the suitability of candidate to discharge the functions of a government service.
9. In the case of Union Territory, Chandigarh Administration and others -v- Pradeep Kumar and another [(2018) 1 SCC 797], Hon'ble Supreme Court has considered the nature and effect of acquittal in a criminal case with regard to employment. Para 10 of the decision read thus :-
"10. The acquittal in a criminal case is not conclusive of the suitability of the candidates in the post concerned. If a person is acquitted or discharged, it cannot always be inferred that he was falsely involved or he had no criminal antecedents. Unless it is an honourable acquittal, the candidate cannot claim the benefit of the case. What is honourable acquittal, was considered by this Court in Inspector General of Police v. S. Samuthiram [Inspector General of Police v. S. Samuthiram, (2013) 1 SCC 598, in which this Court held as under:
"24. The meaning of the expression "honourable acquittal" came up for consideration before this Court in RBI v. Bhopal Singh Panchal [RBI v. Bhopal Singh Panchal, (1994) 1 SCC 541. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere 9 acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honourably acquitted". When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted."
10. In the case of Jainendra Singh v. State of U.P., [(2012) 8 SCC 748] Hon'ble Supreme Court has held in para 29.2 as under :-
"29.2 Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if finds it not desirable to appoint a person to a disciplined force can it be said to be unwarranted."
11. In the case of Rajasthan Rajya Vidyut Prasaran Nigam Limited and another -v- Anil Kanwariya [(2021) 10 SCC 136] Hon'ble Supreme Court considering various decisions with regard to criminal antecedent of an 10 employee and declaration/ concealment / compromise, has observed in para 8.7 as under :-
"8.7. In Abhijit Singh Pawar [State of M.P. v. Abhijit Singh Pawar, [(2018) 18 SCC 733], when the employee participated in the selection process, he tendered an affidavit disclosing the pending criminal case against him. The affidavit was filed on 22-12-2012. According to the disclosure, a case registered in the year 2006 was pending on the date when the affidavit was tendered. However, within four days of filing such an affidavit, a compromise was entered into between the original complainant and the employee and an application for compounding the offence was filed under Section 320 CrPC. The employee came to be discharged in view of the deed of compromise. That thereafter the employee was selected in the examination and was called for medical examination. However, around the same time, his character verification was also undertaken and after due consideration of the character verification report, his candidature was rejected. The employee filed a writ petition before the High Court challenging rejection of his candidature. The learned Single Judge of the High Court of Madhya Pradesh allowed the said writ petition. The judgment and order passed by the learned Single Judge directing the State to appoint the employee came to be confirmed by the Division Bench which led to appeal before this Court. After considering a catena of decisions on the point including the decision of this Court in Avtar 11 Singh (supra), this Court upheld the order of the State rejecting the candidature of the employee by observing that as held in Avtar Singh (supra), even in cases where a truthful disclosure about a concluded case was made, the employer would still have a right to consider antecedents of the candidate and could not be compelled to appoint such candidate."
12. In the instant case, as per the conditions stipulated in the order of regularization Annexure P-2, upon receiving of credentials/character verification report of the petitioner, he was found involved in criminal case, hence, respondents did not find him fit for the government service, and therefore, his services were discontinued. Thus, in para 6 of the impugned order, learned Single Judge has rightly held that said order Annexure P-1 cannot be said to be an order of termination of service, rather, it is an order/ a case of discontinuation of service, on the basis of criminal antecedent, which is purely in accordance with the conditions stipulated in the order of regularization itself.
13. Alhough, service of the petitioner was discontinued/ terminated vide Annexure P-1 dated 20-4-2010 on the basis of character verification report only, but at that time, he did not challenge his termination order. He challenged his termination order by filing writ petition on 3-6-2021, only after his acquittal in aforesaid criminal case vide order dated 14-7-2018 passed in Lok Adalat by the Judicial Magistrate First Class, Katghora. Hence, the view taken by learned Single Judge that challenge to the termination order is highly belated, i.e. after more than a decade, cannot be held to be inappropriate.
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14. Since, the petitioner himself has filed the writ petition challenging his termination order after his acquittal, therefore, now at this stage, his termination order cannot be seen in isolation of credential/character verification report. Instead thereof, it would be seen along with alleged acquittal order which is based on compromise and which cannot be termed as "honourable / clean acquittal". Despite such acquittal, the employer would still have a right to consider antecedent of the candidate and the employer cannot be compelled to appoint or to continue service of such candidate. Therefore, we do not find that declining of relief by learned Single Judge, as prayed for by the petitioner, is in any way illegal.
15. In view of aforesaid discussion, we do not find any merit in the instant writ appeal, warranting interference with the order passed by the learned Single Judge.
16. Consequently, the writ appeal filed by the appellant/petitioner is dismissed. No costs.
Sd/- Sd/-
(Arup Kumar Goswami) (N.K. Chandravanshi)
Chief Justice Judge
Pathak/-