Jharkhand High Court
Janardhan Sah Son Of Late Chhabilal Sah vs The State Of Jharkhand Through Director ... on 22 November, 2022
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 510 of 2009
Janardhan Sah son of late Chhabilal Sah, Resident of village-
Baskendri, P.S.- Maheshpur, District- Pakur.
... ... Petitioner
Versus
1. The State of Jharkhand through Director General of Police,
Government of Jharkhand, Ranchi.
2. Superintendent of Police, Deoghar
3. Superintendent of Police, Pakur
... ... Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Rajeeva Sharma, Senior Advocate Mr. Om Prakash, Advocate For the Respondents : Mr. Faisal Allam, Advocate
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19/22.11.2022 Heard Mr. Rajeeva Sharma, learned Senior counsel for the petitioner along with Mr. Om Prakash, learned counsel appearing on behalf of the petitioner.
2. Heard Mr. Faisal Allam, learned counsel appearing on behalf of the respondents.
3. This writ petition has been filed for the following reliefs:
"a) This Hon'ble Court may be pleased to quash the order no. 1615/2006 contained in memo no. 2468 dated 26.10.2006 passed by the Superintendent of Police, Deoghar (respondent no. 2), whereby he has dismissed the petitioner from the post of constable no. 614 on the ground that learned Sub Divisional Judicial Magistrate, Pakur has sentenced him 6 months imprisonment under sections 225 IPC in Maheshpur P.S. Case No. 81/1990.
This ground is rendered abinitio void and non-est in the eye of law inasmuch as the Hon'ble Jharkhand High Court, by its order dated 1.2.2007 passed in Criminal Revision No. 484 of 2001, set aside the said conviction and sentence of the court below and acquitted the petitioner from all the charges leveled against him.
ii) This Hon'ble Court may be pleased to quash the order contained in memo no. 883 dated 20th September 2008 passed by Director General of Police, Government of Jharkhand, Ranchi (Respondent no.1) whereby he has confirmed the dismissal of the petitioner, inter alia, on the unfounded and baseless ground that his character was found to be of criminal activities.
iii) This Hon'ble Court may be pleased to direct the respondents to reinstate the petitioner in service on and from 26.10.2006.
2iv) This Hon'ble Court may be pleased to direct the respondents to pay the petitioner arrears of salary from 26.10.2006 till the date of reinstatement treating him in continuous service from the date of his appointment i.e. 16.9.2005."
Arguments on behalf of the Petitioner
4. Learned Senior counsel for the petitioner has submitted that pursuant to advertisement no. 1/2004, the petitioner applied and participated in the selection process for the post of constable and was appointed vide order no. 1174/2005 on and from 16.09.2005.
5. It is further submitted that one criminal case was instituted against the petitioner being Maheshpur P.S Case No. 81 of 1990. In the said case, charge-sheet was filed on 26.12.1990. The petitioner was convicted by the trial court in the year 1994 and was sentenced to undergo simple imprisonment of six months. Against the order of conviction, Criminal Appeal No. 13/16 of 1994 was filed which was also dismissed vide judgement dated 16.08.2001.
6. The learned Senior counsel for the petitioner further submits that after the appointment of the petitioner and upon verification of the character of the petitioner through the concerned Superintendent of Police, the petitioner was dismissed from service vide order dated 26.10.2006 by referring to Rule 673(c) of Jharkhand Police Manual on the ground that he was previously convicted and sentenced to six months' imprisonment and his past behaviour was also not found to be good. The learned Senior counsel submits that the impugned order passed by the Superintendent of Police is a punitive order and therefore, the same having been passed in violation of principles of natural justice cannot be sustained in the eyes of law. The petitioner ought to have been subjected to regular disciplinary proceedings by issuing a show-cause.
7. The learned Senior counsel has also submitted that the petitioner was subsequently acquitted vide judgement dated 06.02.2007 passed in Criminal Revision No. 484 of 2001 and the judgement of conviction was set-aside and consequently, the entire basis of dismissing the petitioner did not exist any further after 06.02.2007.
38. The learned Senior counsel has further submitted that the appeal filed against the order of dismissal from service was rejected vide order dated 20.09.2008, but the aforesaid aspect of acquittal of the petitioner vide order passed in criminal revision petition has not been properly considered by the appellate authority.
9. The learned Senior counsel submits that otherwise also there is no question of any suppression of any material fact in view of the statement made in the counter-affidavit that the concerned column at Sl. No. 7 and 8 of the proforma was left blank which relates to details on the point of conviction if any, in criminal or civil case. He submits that the petitioner had left the said column blank and in such circumstances, the petitioner cannot be said to have given any false information or declaration before the respondents.
10. The learned Senior counsel for the petitioner has relied upon the judgment passed by the Hon'ble Supreme Court reported in (2020) 12 SCC 426 (Dr. Vijayakumaran C.P.V. Vs. Central University of Kerala and Others). He has referred to paragraphs 7 and 8 of the said judgment to submit that if the order of termination is stigmatic then even for terminating the service of a probationer, natural justice is required to be followed.
11. The learned Senior counsel has also relied upon the judgment passed by this Court in W.P.(S) No. 398 of 2015 decided on 26.11.2020 (Pintu Kumar Yadav Vs. Director General of Police and Others) to submit that if the termination order is stigmatic and punitive in nature, the same is required to be passed by following the principles of natural justice.
Arguments on behalf of the Respondents
12. The learned counsel for the respondents, on the other hand, while opposing the prayer has submitted that the petitioner was appointed on temporary basis subject to receipt of his verification roll from the concerned Superintendent of Police. The learned counsel submits that upon receipt of the verification roll/report, it was found that the petitioner was subjected to criminal proceedings and was convicted and his appeal was also dismissed as on 26.10.2006, but this aspect of the matter was not disclosed by the petitioner in his verification roll. The learned counsel has submitted that once 4 verification roll of the petitioner was found to be not upto the mark and the fact that petitioner was convicted in a criminal case having not been disclosed by the petitioner, the impugned order based on such verification of character roll has been passed in accordance with law and it does not call for any interference.
13. The learned counsel for the respondents further submits that the present case is not a case where the petitioner has been dismissed on account of any misconduct while in service, rather he has been dismissed upon verification of character roll and the appointment itself was subject to verification of character roll, therefore, the impugned order does not call for any interference. He has also submitted that the subsequent acquittal of the petitioner in the criminal revision vide judgement dated 06.02.2007 has no bearing in the present case. He has relied upon the judgement passed by the Hon'ble Supreme Court reported in (2021) 10 SCC 136 (Rajasthan Rajya Vidyut Prasaran Nigam Limited and Another Vs. Anil Kanwariya) (para 8.2) and also judgement reported in (2013) 9 SCC 363 (Devendra Kumar vs. State of Uttaranchal and Others) (paragraphs 12, 18 and 19) to submit that the non-disclosure of a criminal case in which he was convicted, by itself, amounts to moral turpitude.
Findings of this Court
14. The matter relates to non-disclosure of criminal case by the petitioner in the verification roll at the time of his induction in police service.
15. Rule 673 of Jharkhand Police Manual delas with verification roll which clearly provides that the verification roll is sent for verification from the home district of the applicant through the superintendent of the concerned district. Rule 673 of Jharkhand Police Manual is quoted as under:-
(a) "Verification roll. - A verification roll shall be prepared in P.M. Form no. 101 and sent for verification to the home district of every candidate, for the post of Sub-
Inspector, Reserve Sub-Inspector and constable or any ministerial post.
(b) In the case of semi-literate men such as those recruited under relaxation of minimum educational qualification in rule 663 the questions on the roll shall be put to the candidate by the reserve officer, or an officer nominated for the purpose by the Superintendent, and that officer 5 shall write down the answers, sign these with his full signature and produce these; together with the candidate, before the Superintendent. Literate persons shall fill in and sign the answers themselves. The Superintendent, if satisfied with the answers, will sign the roll, have the impression of the man's left thumb taken in the space provided and pass an order for his enlistment.
(c) Enlistment orders- The order for enlistments shall then be entered in the order book, the service book shall be prepared and the verification roll despatched to the Superintendent of the district in which the recruits home is situated. The number and date of despatch shall be noted in the proper place in the service-book, and on the return of the roll with a report that the man bears a good character and has made a truthful statement as to his antecedents, the Superintendent shall initial this entry, have the necessary entry made in the service-book and order the verification roll to be filed. If the character of the man is reported to be bad or his statement false, he shall be removed from the force."
16. This Court finds that admittedly the petitioner was convicted in a criminal case vide judgement passed in the year 1994 against which appeal was also dismissed on 16.08.2001. The petitioner had participated in the selection process pursuant to advertisement and was appointed on 16.09.2005 subject to verification of his character from the concerned police station. The appointment of the petitioner was purely temporary. It further appears from the counter-affidavit that the petitioner did not fill up the column nos. 7 and 8 in the proforma which contains the details regarding conviction of the incumbent in any criminal or civil case. This court is of the considered view that by keeping the column no. 7 and 8 blank, the petitioner had suppressed material fact about his conviction in a criminal case against which the appeal stood dismissed at the relevant point of time. In spite of such non-disclosure from the side of the petitioner, the petitioner was given temporary appointment subject to verification of his character roll. The report which was received indicated that the petitioner was already convicted in a criminal case and the appeal filed against the same was also dismissed. It was also reported that the earlier conduct of the petitioner was also not good. The petitioner was ultimately terminated vide order dated 26.10.2006 by referring to Rule 673(c) of Jharkhand Police Manual.
617. From the perusal of Rule 673 of Jharkhand Police Manual , it clearly provides that a verification roll is to be prepared and sent for verification to the home district of every candidate for the post of Sub- Inspector, Reserved Sub-Inspector and constable or any ministerial post and on return of the role with a report that the man bears a good character and has made truthful statement as to his antecedents, the Superintendent shall initial this entry in the service book and order the verification roll to be filed. It also provides that if the character of the man is reported to be bad or his statement false, he shall be removed from service. It is not in dispute that upon verification of the character of the petitioner, a report was received regarding his previous conviction which was not disclosed by the petitioner in his form by keeping the form blank.
18. This court is of the considered view that the petitioner, by keeping the form blank, had suppressed material facts regarding his previous conviction in terms of Rule 673(c) of Jharkhand Police Manual and further the previous character of the petitioner was also reported to be bad. In such circumstances, the impugned order by which the services of the petitioner has been terminated on 26.10.2006 by referring to his previous conviction and also bad character as per verification report, does not call for any interference under Article 226 of the Constitution of India.
19. So far as the argument of the petitioner that the petitioner should have been subjected to disciplinary proceedings and should have been granted an opportunity of hearing, is concerned, the same is devoid of any merits under the facts and circumstances of this case. Admittedly, the petitioner did not disclose about his previous conviction in criminal case while filling his form, which amount to material suppression by the petitioner at the time of induction in service. On account of such admitted fact, no prejudice has been caused to the petitioner by not granting an opportunity of hearing before dismissing him from service. Admittedly, even on the date when the order of dismissal dated 26.10.2006 was passed, the petitioner stood convicted. Admittedly, the appointment of the petitioner was itself conditional and subject to verification report 7 which was found against the petitioner and it came to light that the petitioner was already convicted and did not have a good character.
20. It is also important to note that the petitioner has not been dismissed on account of any misconduct while in service but he has been dismissed on the ground of non-disclosure/suppression of his previous conviction in the criminal case. On account of admitted facts on record with regards to non-disclosure/suppression of previous conviction, the judgements relied upon by the petitioner are not applicable to the facts and circumstances of this case and this court is not inclined to interfere with the impugned order of dismissal in exercise of powers under Article 226 of the Constitution of India. The fact remains that in the present case, the appointment itself was subject to verification of the character of the petitioner and the petitioner has been dismissed immediately upon receipt of adverse verification roll/report, interalia, mentioning his previous conviction. Rule 673(c) of Jharkhand Police Manual clearly provides that if the character of the person is reported to be bad or his statement is false, he shall be removed from the force.
21. So far as subsequent acquittal of the petitioner vide judgement passed on 06.02.2007 in Criminal Revision No. 484 of 2001 is concerned, the same has no bearing in the present case, in as much as, the petitioner is guilty of non-disclosure /suppression of his previous conviction at the time of induction and has thereby deprived the authorities to assess his suitability at the time of induction in spite of his conviction at the relevant point of time. Subsequent acquittal in the criminal case will not rectify the act of non-disclosure /suppression of his previous conviction at the time of induction. In view of the aforesaid, this court is of the considered view that the appeal filed by the petitioner against the order of dismissal has also been rightly dismissed by the appellate authority.
22. Learned counsel for the petitioner has relied upon the judgement reported in (2020) 12 SCC 426 (Supra) wherein employee was under probation and on the basis of certain complaint, the matter was referred to internal complaint committee. The allegation of sexual misconduct was found to be proved and it was resolved that the employee who was on probation, was not suitable for continuation and 8 confirmation. Accordingly, the order of termination was ex-facie stigmatic and the point for consideration before the Hon'ble Supreme Court was whether the order could be regarded as an order of termination simplicitor or it was ex-facie stigmatic. The Hon'ble Supreme Court found that the order was ex-facie stigmatic and punitive and such order could be issued only after subjecting the incumbent to a regular enquiry as per service rules and consequently, set-aside the order of termination and by referring to the judgement passed by the Hon'ble Supreme Court in the case of "ECIL Vs. B. Karunakar" reported in (1993) 4 SCC 727, the matter was to be taken forward by the authority concerned in accordance with law.
23. The other judgement which has been relied upon by the petitioner is the judgement passed in W.P.(S) No. 398 of 2015 decided on 26.11.2020 wherein a probationer was alleged to have remained absent unauthorizedly and he was terminated forthwith on account of such allegation. This court considered the records of the case including the counter-affidavit and found that it was evident that the termination order appeared to be simplicitor termination but attending circumstances showed that the misconduct was the real basis for termination and accordingly held that the punishment could not have been imposed without following the principles of natural justice.
24. Considering the aforesaid judgements relied upon by the learned counsel for the petitioner, there is no doubt that even in case of probationer, if the termination order is found to be stigmatic, the rules of natural justice/service rules are required to be followed.
25. However, the said judgements do not apply to the facts and circumstances of this case in view of the two judgements relied upon by the learned counsel for the respondents passed by the Hon'ble Supreme Court reported in (2013) 9 SCC 363 (Supra) and also the judgment reported in (2021) 10 SCC 136 (Supra) specifically dealing with furnishing of false information/ suppression of information regarding criminal antecedents of the candidate seeking induction or already inducted in service subject to verification of information furnished in verification roll .
26. In the judgement reported in (2013) 9 SCC 363 (Supra), the verification of character of the government servant (constable), upon 9 first appointment wherein the individual was required to furnish information about criminal antecedents, was under consideration. In the said case, the incumbent had completed his training satisfactorily and upon character verification, it came to light that he was involved in a criminal case and the final report was submitted by the prosecution and accepted by the judicial magistrate. On the basis of suppression of the information, the incumbent was discharged abruptly on the ground that he was a temporary government servant and he could be removed from service without holding any enquiry. The employee had challenged the order of termination and both the learned Single Judge of the concerned High Court as well as the Division Bench recorded finding that he had suppressed material information sought by the employer as to whether he had ever been involved in any criminal case. The incumbent was before the Hon'ble Supreme Court. While dismissing the appeal, the Hon'ble Supreme Court held in paragraph 12 that the case pending against the person might not involve moral turpitude, but suppressing of its information itself amounts to moral turpitude. Paragraphs 12 and 24 to 26 of the aforesaid judgement are quoted hereinbelow for ready reference:
"12. So far as the issue of obtaining the appointment by misrepresentation is concerned, it is no more res integra. 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.
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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 if 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 10 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."
27. In the judgement reported in (2021) 10 SCC 136 (Supra) also, the employee had suppressed the fact about his criminal antecedent and was terminated. The order of termination was challenged before writ court. The writ petition was allowed and the order of termination was set-aside. The Hon'ble Division Bench of the concerned High Court had dismissed the appeal and confirmed the judgment passed by the learned Single Judge and the review petition was also dismissed. The employer was in appeal before the Hon'ble Supreme Court. It was the case of the employee that the suppression was neither intentional nor deliberate, rather it was under bonafide belief that in view of benefit granted to the employee under the provisions of Section 3 of Probation of Offenders Act 1958 by the trial court, he would not incur 11 any disqualification and it was submitted that the said omission or lapse deserved to be condoned by taking a lenient view. The Hon'ble Supreme Court considered the various judicial pronouncements on the point and ultimately allowed the appeal of the employer and while allowing the appeal, has inter alia, referred to the judgement passed by the Hon'ble Supreme Court in the case of "Devendra Kumar vs. State of Uttaranchal and Others" (Supra), in particular, paragraphs 8.2, 8.3 and 8.4 of the judgement. The Hon'ble Supreme Court also relied upon the judgement passed in the case of "Jainendra Singh Vs. State of U.P." reported in (2012) 8 SCC 748 wherein the principles to be considered in a case where the appointment is obtained by misrepresentation and/or suppression of facts by candidates/appointees, were laid down. Paragraph 8.5 of the aforesaid judgement reported in (2021) 10 SCC 136 (Supra) is quoted as under:
"8.5. In Jainendra Singh, this Court summarised the principles to be considered in a case where the appointment is obtained by misrepresentation and/or suppression of facts by candidates/appointees as under : (SCC pp. 761-62, para 29) "29.1. Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer. 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.
29.3. When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry.
29.4. A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services.12
29.5. The purpose of calling for information regarding involvement in any criminal case or detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have a clear bearing on the character and antecedents of the candidate in relation to his continuity in service.
29.6. The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service.
29.7. The standard expected of a person intended to serve in uniformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted. 29.8. An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, conviction or detention, even if ultimately he was acquitted of the said case, inasmuch as such a situation would make a person undesirable or unsuitable for the post. 29.9. An employee in the uniformed service presupposes a higher level of integrity as such a person is expected to uphold the law and on the contrary such a service born in deceit and subterfuge cannot be tolerated.
29.10. The authorities entrusted with the responsibility of appointing Constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a Constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of Constable."
28. The Hon'ble Supreme Court also relied upon the judgement passed in the case of "Daya Shankar Yadav Vs. Union of India"
reported in (2010) 4 SCC 103 which had dealt with the purpose of seeking information with respect to antecedents wherein it was observed and held that the purpose as to ascertain the character and antecedents of the candidates is to assess his suitability for the post and when the prospective candidate declares in a verification form answer to the queries relating to character and antecedents, the verification thereof can lead to the various consequences which was enumerated in paragraph 15 of the judgement in Daya Shankar Yadav (Supra) and it has been ultimately held that an employee can be 13 discharged from service or a prospective employee may be refused employment on the ground of suppression of material information or making false statement in reply to queries relating to prosecution or conviction for a criminal case. The judgements passed by the High Court were set-aside and the Hon'ble Supreme Court further examined the issue/ question from another angle from the employer's point of view and held in paragraphs 14 and 15 as follows:
"14. The issue/question may be considered from another angle, from the employer's point of view. The question is not about whether an employee was involved in a dispute of trivial nature and whether he has been subsequently acquitted or not. The question is about the credibility and/or trustworthiness of such an employee who at the initial stage of the employment i.e. while submitting the declaration/verification and/or applying for a post made false declaration and/or not disclosing and/or suppressing material fact of having involved in a criminal case. If the correct facts would have been disclosed, the employer might not have appointed him. Then the question is of TRUST. Therefore, in such a situation, where the employer feels that an employee who at the initial stage itself has made a false statement and/or not disclosed the material facts and/or suppressed the material facts and therefore he cannot be continued in service because such an employee cannot be relied upon even in future, the employer cannot be forced to continue such an employee. The choice/option whether to continue or not to continue such an employee always must be given to the employer. At the cost of repetition, it is observed and as observed hereinabove in catena of decision such an employee cannot claim the appointment and/or continue to be in service as a matter of right.
15. In view of the afore stated facts and circumstances of the case, both, the learned Division Bench as well as the learned Single Judge have clearly erred in quashing and setting aside the order of termination terminating the services of the respondent on the ground of having obtained an appointment by suppressing material fact and filing a false declaration. The order of reinstatement is wholly untenable and unjustified."
29. This Court is of the considered view that the aforesaid two judgements by the Hon'ble Supreme Court in the case reported in (2013) 9 SCC 363 (Supra) and in (2021) 10 SCC 136 (Supra) squarely cover the present case of the petitioner against the petitioner.
14This court is of the considered view that non-disclosure of necessary information in the verification form about the previous conviction of the petitioner at the relevant point of time when the verification form was filled up, itself amounts to suppression and by non-disclosure of such information, the petitioner had deprived the employer to assess his suitability for employment at the very threshold. Non-disclosure of such information amounts to moral turpitude and therefore, there is no illegality on the part of the respondents to terminate the services of the petitioner on account of non-disclosure of material information in the verification form. The subsequent acquittal in criminal revision has no bearing in the matter.
30. As a cumulative effect of the aforesaid findings, this Court does not find any merit in this writ petition which is accordingly dismissed.
31. Pending interlocutory application, if any, is closed.
(Anubha Rawat Choudhary, J.) Pankaj