Jharkhand High Court
Rohitash Choudhary Cisf No.103 vs Union Of India & Ors on 23 November, 2016
Author: Pramath Patnaik
Bench: Pramath Patnaik
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 6200 of 2011
Rohitash Choudhary CISF No.103211093, S/o Sri Banshi Dhar Choudhary,
R/o village & P.O.-Chharsa via-Gathwadi, P.S.-Manoharpur, Tehsil-Shahpura,
District-Jaipur, Rajasthan, PIN-303120. .... Petitioner
Versus
1. Union of India through the Ministry of Home Affairs, New Delhi.
2. Commandant, Central Industrial Security Forces (CISF), 8th Res. Bn., P.O.
& P.S. Jaipur, Rajasthan.
3. Inspector General, Central Industrial Security Forces (CISF), (Ministry of
Home Affairs), CISF Office Campus, Eastern Zone Headquarter, Boring
Road, Patna, P.O. & P.S.-Sachivayala, Patna (Bihar), PIN- 800 013
4. Commandant, Central Industrial Security Forces (CISF), (Ministry of
Home Affairs), CISF Unit-Bhakokoli, BCCL Dhanbad, P.O.-Koyla Nagar,
District-Dhanbad, Jharkhand.
5. Assistant Commandant, Central Industrial Security Forces (CISF),
(Ministry of Home Affairs), CISF Unit-Bhakokoli, BCCL Dhanbad, P.O.-
Koyla Nagar, District-Dhanbad, Jharkhand.
..... Respondents
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CORAM : HON'BLE MR. JUSTICE PRAMATH PATNAIK
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For the Petitioner : M/s Diwakar Upadhyay &
Rakesh Kr. Roy, Advocates
For the Respondents-UOI : M/s Rajiv Sinha, ASGI &
B. K. Prasad, J.C to ASGI
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09/23.11.2016In the accompanied writ application, the petitioner has inter-alia prayed for quashing and setting aside the order dated 25.04.2011 passed by Commandant, Central Industrial Security Forces (CISF), (Ministry of Home Affairs), CISF Unit-Bhakokoli, BCCL Dhanbad (Respondent No.4) pertaining to termination from the services of CISF and the petitioner has further prayed for quashing/setting aside the order dated 29.06.2011 passed by Inspector General, Central Industrial Security Forces (CISF) (Respondent No.3) pertaining to rejection of appeal thereby confirming the order passed by the disciplinary authority and the petitioner has further prayed for reinstatement in services with all consequential benefits.
2. The facts as disclosed in the writ application, in a nutshell is that in pursuance to appointment letter on the post of Constable issued by the respondent no.2 dated 16.02.2010, the petitioner joined the service of Central Industrial Security Force (CISF) on 06.03.2010 on the post of Constable. Thereafter, the medical examination was conducted. The petitioner submitted his character and antecedent certificate dated 15.02.2010 issued by the SHO, Police Station Incharge, Manoharpur Police Station, Jaipur before joining in service in CISF as evident from Annexure-1 and 1/A of the writ application. After successful completion of the training, the petitioner was posted as Constable in CISF Unit of BCCL, Dhanbad. While continuing as such, without any rhyme and reason, the petitioner was terminated from services vide order dated 25.04.2011 issued by Commandant, Central Industrial Security Forces (CISF), BCCL (Respondent No.4) vide Annexure-2 to the writ application. Being aggrieved and dissatisfied with the impugned order of termination dated 25.04.2011 the petitioner preferred an appeal before the respondent no.3. The appellate authority vide order dated 29.06.2011 rejected the appeal and confirmed the order passed by the disciplinary authority vide Annexure-3 to the writ application. Being aggrieved by the order of termination dated 25.04.2011 and the order passed by the appellate authority dated 29.06.2011, the petitioner left with no other alternative efficacious and speedy remedy, has approached this Court invoking extra-ordinary jurisdiction under Article 226 of the Constitution of India for mitigating his grievances.
3. Learned counsel for the petitioner has vehemently submitted that the respondent no. 4 failed to disclose the grounds on which the impugned order of termination against the petitioner has been passed. The impugned order/termination purportedly under Rule 26(4) of the Central Industrial Security Force Rule 2001 (Amended Rule 2003) is non-speaking order and cryptic and therefore, the same is assailable. Learned counsel for the petitioner further submits that the impugned order of termination vide Annexure-2 has been passed by the Commandant, Dhanbad (Respondent No.4) but actually the petitioner was appointed by the respondent no.2. Therefore, under Rule 26(4) of the Central Industrial Security Force Rule 2001 (Amended Rule 2003) has not been complied with therefore, the impugned order cannot be legally sustainable. Learned counsel for the petitioner further submits that the penalty imposed upon the petitioner is a major one and the same has been imposed without holding full dressed inquiry without giving opportunity of being heard. Therefore, Article 311 of the Constitution of the India has been given a complete go back by the respondent authorities. Learned counsel for the petitioner, during course of hearing, has referred supplementary affidavit dated 08.10.2015 whereby drawn the attention of the Court, the petitioner alongwith others have been acquitted vide order dated 02.06.2010 passed by the learned trial court, Jaipur. Learned counsel for the petitioner further submits that in the meantime, the petitioner become over age and there is no chance of his join to any other service and the case of the petitioner institutes on the sympathetically grounds. Learned counsel for the petitioner has also referred to the judgment of the Hon'ble Apex Court reported in 2011 (2) JCR 186 (SC), Commissioner of Police and Others Vs. Sandeep Kumar.
4. Per-contra, controverting the averments made in the writ application, a counter-affidavit has been filed by the respondents. Learned counsel for the respondents- Union of India has reiterated the submissions made in the counter-affidavit. During course of hearing, learned counsel for the respondents-Union of India has referred to paragraph no.5 of the counter affidavit that the attestation form duly filled up on 15.02.2010. The attestation form was sent to the Additional District Magistrate, Jaipur (Rajasthan) for verification of character and Antecedents in respect of the petitioner through local police vide CISF Unit, BCCL Dhanbad letter dated 18.10.2010 during the period of probation of the petitioner. The said attestation form was received back from District Magistrate, Jaipur, Rajasthan vide his letter dated 14.03.2011 with an endorsement that police case No.138/06 under Sections 143, 341, 323 & 325 of IPC (vide charge sheet bearing no.91 of 2006 dated 26.07.2006), was registered against the petitioner in Manoharpur Police Station and the said case was pending in the court of learned MJM, Shahpura, Jaipur (Annexure-III). After receiving the aforesaid report from the District Magistrate, Jaipur (Rajasthan), it has been observed that the said information was not mentioned in the column no.12(b) & (i) at page no.5 of attestation form by the petitioner at the time of his appointment in CISF. The following "warning" was already mentioned at the top of attestation format page no.1 that:-
Warning No.1: The 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. Warning No.3: If the fact that false information has been furnished or that there has been suppression of factual information in the attestation form comes to notice any time during the service of a person, his services would be liable to be terminated (Annexure-IV).
It has further been submitted that the petitioner had filled up an attestation form at the time of appointment on 15.02.2010 wherein, he did not disclose that a criminal case was lodged against him, thus he concealed the factual information while furnishing the attestation form. There is a clear instruction in the attestation form that furnishing of false information or suppression of any factual information would be a disqualification and will render the candidate unfit for employment and that if such false information furnished by the candidate comes to notice at any stage, the petitioner liable to be terminated. Since the petitioner has given false information at the time of his appointment in CISF and this fact came to be confirmed at the time of verification of attestation form from the District authority of Jaipur (Rajasthan). The petitioner has blatantly ignored the instructions given in the Attestation Form and has furnished false information by suppressing factual information. Therefore, the petitioner was terminated from services by the competent authority in terms of Rule 26 (4) of CISF Rules, 2001 (now amended Rule-2003) vide order dated 25.04.2011 (Annexure-V). The petitioner thereafter, has submitted an appeal petition dated 20.05.2011 to Inspector General, CISF Eastern Sector HQrs., Patna against the order of termination dated 25.04.2011 and the said appeal has been rejected being devoid of merit vide order dated 29.06.2011. It has further been submitted that the petitioner was duty bound to be fair and to disclosure of the complete information which has been sought from him. Employment with the security force is a serious matter. Certainly, furnishing of false information at the threshold of entering service deserved to be seriously viewed. In this respect, the judgment vide order dated 22.03.2011 of Hon'ble High Court of Delhi (Annexure-VII) has been annexed.
5. After hearing the learned counsel for the respective parties and on perusal of the records, I am of the considered view that the petitioner has not been able to make out a case for interference due to the following facts, reasons and judicial pronouncements stated hereinbelow:
(i) Admittedly, the petitioner was selected for appointment as constable in the CISF in the year, 2010. He filled the attestation form, wherein, it was specifically mentioned in column 12(b) & (i) that there was special warning 1 and 3 for furnishing of false information or suppression of any factual information in the attestation form which comes to the notice of the respondent authorities, the services of the petitioner could be liable to be terminated. At this juncture, it would be attributable to quote Rule 26 (4) of the Central Industrial Security Force Rules, 2001 which is quoted hereunder:-
"26 (4):- During the period of probation or its extension thereof, as the case may be, the appointing authority may without assigning any reason terminate the services of a member of the Force on the grounds of furnishing false or incorrect information at the time of appointment of that member of the Force or for his failure to pass the basic training or repeat course, by tendering a notice of one month to that effect or one month's pay in liey thereof."
on perusal of the aforesaid rule, there is no gainsaying that the termination of the petitioner from the services made under the aforesaid rule and the impugned order under Annexure-2 does not violate the aforesaid rule.
(ii) On perusal of the counter-affidavit, it is quite crystal clear that the petitioner at the time of filling of attestation form suppressed of material facts which was brought on notice to the respondent authorities therefore, the respondent authorities has invoked the provisions of Rule 26 (4) of the Central Industrial Security Force Rules, 2001 in order to suppress of the services of the petitioner dispensed with. It has been held in the case of Devendra Kumar Vs. State of Uttaranchal & Ors. as reported in (2013) 9 SCC 363, in paragraph nos. 12, 13, 20, 23, 24, 25 and 26 as under:
"12. So far as the issue of obtaining the appointment by misrepresentation is concerned, it is no more res integra. Thequestion is not whether the applicant is suitable for the post. The pendency of a criminal case/proceeding is different from suppressing the information of such pendency. The case pending against a person might not involve moral turpitude but suppressing of this information itself amounts to moral turpitude. In fact, the information sought by the employer if not disclosed as required, would definitely amount to suppression of material information. In that eventuality, the service becomes liable to be terminated, even if there had been no further trial or the person concerned stood acquitted/discharged.
13. It is a settled proposition of law that where an applicant gets an office by misrepresenting the facts or by playing fraud upon the competent authority, such an order cannot be sustained in the eye of the law. "Fraud avoids all judicial acts, ecclesiastical or temporal." (Vide S.P. Chengalvaraya Naidu v. Jagannath.) In Lazarus Estates Ltd. v. Beasley the Court observed without equivocation that: (QB p. 712) "... No judgment of a court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything."
20. In Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav and A.P. Public Service Commission v. Koneti Venkateswarulu this Court examined a similar case, wherein, employment had been obtained by suppressing a material fact at the time of appointment. The Court rejected the plea taken by the employee that the form was printed in English and he did not know the language, and therefore, could not understand what information was sought. This Court held that as he did not furnish the information correctly at the time of filling up the form, the subsequent withdrawal of the criminal case registered against him or the nature of offences were immaterial. "The requirement of filling Columns 12 and 13 of the attestation form" was for the purpose of verification of the character and antecedents of the employee as on the date of filling in the attestation form. Suppression of material information and making a false statement has a clear bearing on the character and antecedent of the employee in relation to his continuation in service.
23. In R. Radhakrishnan v. DG of Police this Court held that furnishing wrong information by the candidate while seeking appointment makes him unsuitable for appointment and liable for removal/termination if he furnished wrong information when the said information is specifically sought by the appointing authority.
24. In the instant case, the High Court has placed reliance on the Government Order dated 28-4-1958 relating to verification of the character of a government servant, upon first appointment, wherein the individual is required to furnish information about criminal antecedents of the new appointees and i f the incumbent is found to have made a false statement in this regard , he is liable to be discharged forthwith without prejudice to any other action as may be considered necessary by the competent authority. The purpose of seeking such information is not to find out the nature or gravity of the offence or the ultimate result of a criminal case, rather such information is sought with a view to judge the character and antecedents of the job seeker or suitability to continue in service. Withholding such material information or making false representation itself amounts to moral turpitude and is a separate and distinct matter altogether than what is involved in the criminal case.
25. More so, if the initial action is not in consonance with law, the subsequent conduct of a party cannot sanctify the same. Sublato fundamento cadit opus -- a foundation being removed, the superstructure falls. A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent court. In such a case the legal maxim nullus commodum capere potest de injuria sua propria applies. The persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation. (Vide Union of India v. Major General Madan Lal Yadav and Lily Thomas v. Union of India.) Nor can a person claim any right arising out of his own wrongdoing (jus ex injuria non oritur)
26. The courts below have recorded a finding of fact that the appellant suppressed material information sought by the employer as to whether he had ever been involved in a criminal case. Suppression of material information sought by the employer or furnishing false information itself amounts to moral turpitude and is separate and distinct from the involvement in a criminal case. In view of the above, the appeal is devoid of any merit and is accordingly dismissed.
(Emphasis supplied)
(ii) Thus, in view of the aforesaid decision, the purpose of seeking such information is not to find out the nature or the gravity of the offence nor to find out the ultimate result of a criminal case, but such information is sought only to find out the character and antecedent of a candidate to find out his suitability to get the job or to continue in the government job. Suppression of material facts and to give false information itself tantamounts to moral turpitude.
(iii) Learned counsel for the petitioner, during course of hearing, has referred to the decision as reported in 2011 (2) JCR 186 (SC), Commissioner of Police and others Vs. Sandeep Kumar, which is factually different from the facts of the present case, as stated hereinabove.
(iv) In the said case treated as a minor indiscretion and the case was compromised but the instant case, the criminal case was registered against the petitioner under Sections 143, 341, 323 and 325 of the Indian Penal Code fetches punishment upto seven years imprisonment. The petitioner was working in a disciplinary force. When there is a specific information sought from the candidate, he had to supply the true and correct facts. In the present case, the petitioner has suppressed the material facts and has given a false information coupled with the fact that he was appointed purely on temporary basis. During the probation, the services has been dispensed with under Rule 26 (4) of the Central Industrial Security Force Rules, 2001 as amended Rule, 2003 and the petitioner was terminated in lieu of the salary has been given therefore, the present case makes different from the decision cited by the learned counsel for the petitioner.
6. Moreover, in these eventualities, there is no need of any notice or charge-sheet or any other procedure to be followed as appointed on the temporary basis. The petitioner was terminated during the probation period. Therefore, the impugned order of punishment dated 25.04.2011 vide Annexure-2 being confirmed by the appellate authority dated 29.06.2011 vide Annexure-3 do not warrant any interference by this Court.
7. Accordingly, the writ petition is dismissed being devoid of any merit.
(Pramath Patnaik, J.) RKM