Jharkhand High Court
Dinu Kumar Pandey vs The Union Of India And Ors on 18 April, 2016
Equivalent citations: 2016 (4) AJR 551, (2016) 3 JCR 481 (JHA)
Author: Pramath Patnaik
Bench: Pramath Patnaik
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P. (S) No. 1351 of 2013
...
Dinu Kumar Pandey Son of Late Jay Narayan Pandey, Resident of
Village Bhaga Bandh P.S. Putki P.O. Putki District Dhanbad
(Jharkhand) ... ... Petitioner
-V e r s u s-
1. The Union of India
2. The Deputy Inspector General and Commandant, S.T.C., Border
Security Force, Government of India, Ministry of Home Affairs,
Subsidiary Training Centre P.O. A.F.S. Yelahanha Bangalore - 560
063, Karnataka.
3. The Inspector General, Border Security Force, Bangalore, Office of
the Inspector General, HQ. (IGSPI - O.P.S.) Bangalore F.T.R./D.B.S.P.
Bangalore, Karnataka.
4. The Dy. Chief Inspector, Training Center and School, Border
Security Force, Maru Campus, Hazaribagh P.O. and P.S. Hazaribagh
District Hazaribagh (Jharkhand - 82531). ... Respondents
...
CORAM: - HON'BLE MR. JUSTICE PRAMATH PATNAIK.
...
For the Petitioner : - M/s. Kalyan Roy and Gajendra Prasad Roy, Advocates.
For the Respondents: - Mr. Rajiv Sinha, A.S.G.I.
...
C.A.V. On : - 18/02/2016 Delivered On : 18/04/2016
...
Per Pramath Patnaik, J.
1. In the instant writ application, the orders dated 04.10.2012 and
28.01.2013, passed by the respondent nos. 2 and 3 have been challenged and prayer has been sought for quashing of the said orders and for reinstatement in services.
2. Sans details, the facts as averred in the writ application is that the petitioner was selected for appointment in B.S.F. for the post of Constable (G.D.) by the SEC. in the year 2011 and he was issued call letter to join TC&S, BSF Hazaribagh on 19.03.2012 vide this letter dated 28.02.2012 as is evident from Annexure-1 to the writ application. The petitioner filed Residential Certificate issued by the Sub-Divisional Officer, Dhanbad vide letter dated 05.03.2011 in the office of the respondents-authorities. Thereafter, the petitioner was allotted B.S.F. Bangalore for undergoing basic training. His attestation form duly filled and also signed by the individual, was then forwarded to the District Collector, Dhanbad, Jharkhand by S.T.C. B.S.F. Bangalore for verification of his character and antecedents. The 2 verification report received from Collectorate Office (Gen. Branch) vide letter dated 16.06.2012 revealed that a criminal case No. 96 of 2006 dated 03.08.2006 was filed against the petitioner under Sections 341, 323, 448, 379, 504 and 34 I.P.C. in Police Station Putki (Dhanbad). Thereafter, the petitioner was asked by the S.T.C./B.S.F. Bangalore vide letter dated 20.07.2012 to explain the reasons as to why he did not disclose details about filing of criminal case against him in the P.S. Putki in the Enrollment and Attestation forms. The petitioner submitted his explanation on 22.07.2012, explaining his position. The Respondent No. 2 after considering the verification report received from the Collector office, Dhanbad (Jharkhand) dated 14/16.06.2012 in exercise of power vested in vide Rule 17 of B.S.F. (Amendment) Rule, 2011, issued by the Govt. of India, Ministry of Home Affairs, dismissed the petitioner from services vide order dated 04.10.2012 vide Annexure-5 to the writ application. Then, being aggrieved by the order of the disciplinary authority, the petitioner preferred appeal and the appellate authority vide order dated 28.01.2013 (Annexure-7) rejected the appeal.
3. Being aggrieved by the aforesaid orders, the petitioner left with no other alternative, efficacious and speedy remedy, has approached this Court, invoking the extraordinary jurisdiction of this Court, under Article 226 of the Constitution of India, for redressal of his grievances.
4. Per contra, a counter affidavit has been filed on behalf of the respondents controverting the averments made in the writ application.
5. In the counter affidavit, it has been inter alia, submitted that at the time of enrollment in B.S.F., after having been cautioned by the Enrolling Officer, authorized for the purpose, the petitioner answered the question nos. 1 to 17 of Enrollment form set out in B.S.F. Rule 13 (Appendix-I) and Attestation form for verification of character and Antecedents against question nos. 1 to 13 with due care. As per question no. 12 of the Enrollment and Attestation forms, he was specifically asked whether he had ever been arrested, prosecuted, convicted, imprisoned, bound over, interned, externed or otherwise, 3 dealt with under any law in force in India or outside, by the Enrolling officer. He answered to question No. 12 as "No" and endorsed his signature against the said question in the Enrollment & Attestation forms, as is evident from Annexure-F to the counter affidavit. Whereas, as per the character and antecedents verification report received from the District Collector, District Dhanbad (Jharkhand), revealed that a criminal case no. 96 of 2006, dated 03.08.2006 has been filed against him under Sections 341, 323, 448, 379, 504 and34 I.P.C. in Putki Police Station. Thus petitioner furnished false answers to the questions, by suppressing the factual position. Therefore, as per the provisions envisaged in Rule 17 of BSF (Amendment) Rules, 2011, any person, who has become subject to the Act, by furnishing false or incorrect information at the time of appointment or enrollment, may be dismissed or removed from service by the appointing authority after giving him an opportunity to show cause against the proposed action. In accordance with the aforesaid Rule and Policy guidelines issued by the Government of India, (Ministry of Home Affairs), the petitioner was called upon vide STC BSF Bangalore letter dated 16.08.2012 to show cause as to why he may not be dismissed from the service, for furnishing false and incorrect information at the time of enrollment. The reply to the said show- cause notice was examined in detail by the competent authority and found to be unsatisfactory and devoid of merit, being inconsistent with evidence on record. Therefore, in exercise of power under Rule 17 of the BSF (Amendment) Rule-2011, the petitioner was dismissed from service w.e.f. 04.10.2012 without any pensionary benefits because of furnishing false information at the time of his enrollment and after dismissal from service, the petitioner has submitted petitions dated 06.10.2012 and 15.10.2012 to the Inspector General, BSF, HQ Bangalore Ftr (Spl Ops), Bangalore and the DG, BSF, New Delhi respectively for reinstatement, which have been examined thoroughly by the IG, BSF, HQ, Bangalore Ftr (Spl Ops) under the provision of Rule 28 A of B.S.F. Rules 1969 and rejected being devoid of any merit.
46. A counter affidavit on behalf of the respondents to the supplementary affidavit filed by the petitioner has also been filed by the respondents, wherein under Rule 17 Chapter IV of the BSF (Amendment) Rule 2011, the rules pertaining to termination of service of an employee on the grounds of furnishing false or incorrect information at the time of appointment or enrollment has been given vide Annexure-D to the counter affidavit to the supplementary affidavit filed by the petitioner.
7. Heard Mr. Kalyan Roy, learned counsel appearing for the Petitioner and Mr. Rajiv Sinha, learned Assistant Solicitor General of India appearing on behalf of the Respondents-Union of India.
8. Mr. Kalyan Roy, learned counsel appearing for the Petitioner has submitted with vehemence that the petitioner was totally unaware that a criminal case was pending against him and his family members in 2006. The petitioner joined the service as Constable on 28.02.2012 and thereafter, the petitioner was discharged from criminal case on 15.09.2012 but prior to the impugned order dated 04.10.2012, the petitioner was discharged from criminal cases. Therefore, the case of the petitioner ought to have been considered in the changed scenario because by virtue of the impugned order, the respondents have snatched away the right of livelihood of the petitioner, thereby infringing Articles 14, 16 and 21 of the Constitution of India.
Learned counsel for the petitioner, during course of arguments, has also referred to the judgment of the Hon'ble Apex Court reported in 2012 (1) JCR 13 (SC), Ram Kumar-versus-State of U.P. And Ors. and another judgment reported in 2011 (2) JCR 186 (SC), Commissioner of Police and Others-versus-Sandeep Kumar.
9. As against the submissions of the learned counsel for the petitioner, Mr. Rajiv Sinha, learned Assistant Solicitor General of India appearing for the Respondent-Union of India submitted that the petitioner was involved in a criminal case, which was registered as Putki P.S. Case No. 96 of 2006, dated 03.08.2006 under Sections 341, 323, 448, 379, 504 and 34 I.P.C. These facts were suppressed, when he filled up the Enrollment and Attestation forms on the post of 5 Constable and he got the appointment by playing fraud upon the respondents. Learned counsel for the respondents further submits that the criminal case may have resulted into acquittal or conviction, but, for the benefit, suppressing a criminal case and that too in a writing, in the form to be filled up by this petitioner after getting employment as a Constable tantamounts to fraud played upon the respondents as there is a deliberate suppression of material fact and even otherwise also, during the period of temporary service, the services of the petitioner can be brought to an end as per the Rule 17 of B.S.F. (Amendment) Rule, 2011.
In support of his contentions, learned counsel for the respondents has relied upon the decision rendered by the Hon'ble Apex Court in the case of Devendra Kumar-versus-State of Uttaranchal & Ors reported in (2013) 9 SCC 363,. On the basis of the said decision, it is submitted by the learned counsel for the respondents that it is not material, whether the offence registered against this petitioner was a major or a minor, but, the facts remains that he had suppressed the material facts when he filled up the Enrollment and Attestation forms for the appointment on the post of Constable. These facts could not have been suppressed by the petitioner.
10. Having heard the learned counsel for the respective parties and on perusal of the records, I find no reason to interfere with the impugned orders mainly for the following grounds : -
(i) The petitioner was selected for appointment in B.S.F. for the post of Constable (G.D.) by the SEC. in the year 2011 and he was issued call letter to join TC&S, BSF Hazaribagh on 19.03.2012 vide this letter dated 28.02.2012. He filled up the Attestation and Enrollment forms, wherein, in question 12 as per Annexure-F to the counter affidavit he was specifically asked whether he had ever been arrested, prosecuted, convicted, imprisoned, bound over, interned, externed or otherwise, dealt with under any law in force in India or outside, by the Enrolling officer. Against this question, the petitioner has mentioned 6 "No" and endorsed his signature against the said question in the Enrollment & Attestation forms? .
(ii) As per Chapter IV of the BSF Rules, pertaining to termination of service on grounds of furnishing false or incorrect information at the time of appointment or enrollment. Rule 17 is quoted hereunder : -
"Chater -IV TERMINATION OF SERVICE
17. [Termination of service on grounds of furnishing false or incorrect information at the time of appointment or enrollment.- (1) Any person, having become subject to the Act, by furnishing false or incorrect information or by adopting any fraudulent means, may be dismissed or removed from service by the Central Government or any other officer not below the rank of the appointing authority, as the case may be.
(2) When the competent authority proposes to take action under sub-rule (1), such person shall be given an opportunity to show cause against the proposed action.
(3) The competent authority, while taking action under this rule, may allow pensionary benefits in appropriate cases, if such benefits are otherwise admissible under the relevant rules;"
(iii) On perusal of the counter affidavit, it is quite evident that there is a deliberate attempt on the part of this petitioner not only of suppression of material facts, but, also giving false information to the respondents, which is a fraud. To uneartha fraud, it takes some time. When the District Magistrate, Dhanbad, Jharkhand wrote a letter, the respondents came to know about the correct facts, therefore, the petitioner has been dismissed from services as per the Rule 17 of B.S.F. (Amendment) Rule, 2011.
(iv) It has been held by Hon'ble Supreme Court in the case of Devendra Kumar v. State of Uttaranchal & Others, 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.7
The question 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 2841958 relating to 8 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."
(v) 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 service. Suppression of material facts and to give false 9 information itself tantamounts to moral turpitude.
(vi) Learned counsel for the petitioner has relied upon the aforesaid decisions rendered by the Hon'ble Apex Court, which are factually different from the facts of the present case, as stated hereinabove.
(vii) In the case in hand, 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 and his services have been terminated as per the provisions of Rule 17 of B.S.F. (Amendment) Rule, 2011.
(viii) The petitioner has been dismissed from services, which has been affirmed by the appellate authority.
11. In view of the reasons stated in the foregoing paragraphs, the impugned orders dated 04.10.2012 and 28.01.2013, passed by the respondent nos. 2 and 3 do not warrant any interference by this Court.
12. Resultantly, the writ petition sans merit, is dismissed.
(Pramath Patnaik, J.) APK