Chattisgarh High Court
Ramanand Sahu vs State Of Chhattisgarh & Others on 16 July, 2012
HIGH COURT OF CHATTISGARH BILASPUR
WRIT PETITION S NO 1987 OF 2011
Ramanand Sahu
...Petitioners
Versus
State of Chhattisgarh & Others
...Respondents
! Shri B P Rao Advocate for the petitioner ^ Shri P K Bhaduri Panel Lawyer for the State CORAM: Honble Shri Satish K Agnihotri J Dated: 16/07/2012 : Judgement (Delivered on this 16th day of July, 2012) (Writ Petition under Article 226 of the Constitution of India)
1. Challenge in this petition is to the order dated 30th November, 2010 (Annexure - P/5) passed by the Chief Engineer, Mahanadi Project, Raipur, whereby the petitioner has been removed from the service.
2. The facts, in short, are that initially the petitioner was engaged as Mazdoor on daily wages basis in the Irrigation Department on 1st July, 1984.
In respect of murder of Smt. Sonarin Bai, wife of the present petitioner, on 18th December, 1991, a criminal case was registered against the petitioner and other co-
accused namely; Om Prakash for offence punishable under Sections 302 & 394 of the Indian Penal Code (for short "IPC"). Thereafter, the petitioner was arrested and according to him, he was kept in detention from 21st March, 1992 to 30th August, 1992. When the petitioner was released on bail, he approached the respondent authorities for permitting him to join duties, but the said prayer was not allowed.
3. Being aggrieved, the petitioner filed an application before the Assistant Labour Commissioner, Raipur, who by order dated 5th February, 1993 (Annexure - P/1) directed the respondents herein to permit the petitioner to join the duties, without back wages on the principle of `no work no pay'.
4. On the basis of said order, the petitioner was directed to join the duties. In the meanwhile, the Court of learned IVth Additional Sessions Judge, Raipur, by judgment dated 21st August, 1995 passed in Sessions Trial No. 107/94 acquitted the accused persons i.e. the present petitioner and co-accused Om Prakash from the alleged offences punishable under Sections 302 and 394 of the I.P.C. Thereafter, the petitioner submitted a copy of the said judgment before the respondent authorities and requested them to continue and regularize his services.
5. The respondent authorities asked the petitioner to fill-up the attestation form. According to the petitioner, on account of his lack of knowledge and illiteracy, he could not fill-up the form and requested one employee of the department to fill-up the form. Subsequently, the said form was sent by the respondent department to the Inspector General of Police (Guptwarta) for verification. By letter dated 6th September, 2010 (Annexure - P/4) the Inspector General of Police (Guptwarta) reported that the act of the petitioner comes under the purview of "moral turpitude".
6. In column No.12, the petitioner replied query in respect of his antecedents; it was stated in negative concealing the fact of his detention from 21st March, 1992 to 30th August, 1992. Accordingly, the petitioner was removed from service on account of suppression of facts by order dated 30th November, 2010 (Annexure - P/5). Thereagainst, the petitioner made several representations before the respondent authorities and requested for his reinstatement, as the impugned removal order has been passed without affording proper opportunity of hearing to the petitioner. Thus, this petition.
7. On the other hand, Shri Bhaduri, learned Panel Lawyer appearing for the State, would submit that the petitioner has suppressed the material facts in respect of his detention, registration of offence and trial, etc. The petitioner obtained the Government service in an illegal manner. After receipt of the information from the police authorities in respect of criminal antecedents of the petitioner, the impugned removal order has rightly been passed.
8. Shri Bhaduri would further submit that the reply of the petitioner to column No.12 of the attestation form is negative and the same was done by the petitioner deliberately. In fact, the petitioner very well knew that if the information in respect of his detention, submission of challan, and the trial is given to the authorities properly the petitioner may not be eligible for appointment. Looking to the conduct of the petitioner, the petitioner is not entitled to any relief and the petition deserves to be dismissed.
9. I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.
10. Initially the petitioner was engaged as Mazdoor on daily wages basis in the Irrigation Department on 1st July, 1984. Thereafter, the petitioner was selected through the departmental scrutiny committee for his appointment on work charged and contingency fund employee vide order dated 13th August, 2008 (Annexure - R/1). The said appointment was subject to verification by the police. If on verification, it was found that the petitioner was not fit for Government service; his services may be removed without any notice. Accordingly, the petitioner was called upon to fill up attestation form (Annexure - P/3). The petitioner submitted the same duly filled up. Thereafter, the said form was sent to the police for its verification. In column No.12, two queries in respect of the petitioner's antecedents, were sought, which read as under :
"12 (A) Have you ever been arrested. Have you ever been prosecuted. Have you ever been summoned. Have you ever paid penalty. Have you even been convicted by a Court (or) Have you ever been declined to appear in any examination or expelled from the University/ educational institution.
(B) Whether at the time of filling up the attestation form any case is pending in the Court, University or educational institution. If your answer in both cases of (A) or (B) is yes, give complete details of the pending case, arrest, ban, conviction, penalty, etc. and details of the pending case in the Court, University or educational institution."
The petitioner has clearly stated in his reply to column No.12 (A) in negative and thereafter, the petitioner has not tried to correct the mistake by subsequent application or clarification.
11. The attestation form was duly verified by the police and on the basis of verification it was found that the column No.12 was deliberately not filled up, as the petitioner had been tried for alleged commission of offence under Sections 302 & 394 of the IPC in respect of murder of his wife, which, ultimately resulted into acquittal.
12. Thus, concealment of facts amounts to misconduct and on the basis of said police report the impugned order dated 30th November, 2010 removing the petitioner from service was passed. The petitioner continued in the establishment only for the period from 13th August, 2008 to 30th November, 2010, not for a long period.
13. In Kendriya Vidyalaya Sangathan & Others v. Ram Ratan Yadav1, the Supreme Court held in para 12 as under:
"12. The object of requiring information in columns 12 and 13 of the attestation form and certification thereafter by the candidate was to ascertain and verify the character and antecedents to judge his suitability to continue in service. A candidate having suppressed material information and/or giving false information cannot claim right to continue in service. The employer having regard to the nature of the employment and all other aspects had the discretion to terminate his services, which is made expressly clear in para 9 of the offer of appointment. The purpose of seeking information as per columns 12 and 13 was not to find out either the nature or gravity of the offence or the result of a criminal case ultimately. The information in the said columns was sought with a view to judge the character and antecedents of the respondent to continue in service or not..."
14. In Kamal Nayan Mishra v. State of Madhya Pradesh and Others2, the question of law before the Supreme Court asto whether the State Government dismissed or removed the holder of a civil post, without any enquiry or opportunity to show cause, once it is found that he has given incorrect/false information in the attestation form.
Secondly, whether the termination of the employee was valid. The Supreme Court noticed the fact that a criminal case under Sections 323, 341, 294 & 506-B read with Section 34 of the IPC was pending against the employee, therefore, he was terminated from service.
15. In Kamal Nayan Mishra (supra), the Supreme Court further noted that the decision rendered in Ram Ratan Yadav (supra) dealt with probationer, not the holder of civil post. Thus, the confirmed employee holding the civil post cannot be terminated from service on furnishing false information in an attestation form, without giving an opportunity to meet the charges against him.
16. In Kamal Nayan Mishra (supra), the petitioner was appointed on 24th July, 1980 and nearly a decade later, on 22nd August, 1989 the petitioner was charge-sheeted in a criminal case and he was acquitted by judgment dated 9th September, 2004. The attestation form was submitted on 27th October, 1994. The petitioner was removed from service near 7 years later.
17. In the case on hand, the petitioner was initially appointed on daily wages on 1st July, 1984. Thereafter, on institution of a criminal case against the petitioner for alleged commission of offence punishable under Sections 302 & 394 of the IPC and incarceration in jail from 21st March, 1992 to 30th August, 1992 led to removal from the daily wages service. After release from jail on bail, the petitioner approached the Assistant Labour Commissioner, Raipur, who by order dated 5th February, 1993 directed the reinstatement of the petitioner, which was complied with by the respondent authorities. The petitioner continued thereon without any break till he was regularized on scrutiny by order dated 13th August, 2008 (Annexure - R/1).
18. Thus, the fact of incarceration of the petitioner in jail for alleged commission of offence punishable under Sections 302 & 394 of the IPC was known to the authorities when the petitioner was released from jail on bail and reinstated in service as daily wager pursuant to the order dated 5th February, 1993 passed by the Labour Court. There was no challenge to the order dated 5th February, 1993.
19. The petitioner was acquitted from the alleged offence punishable under Sections 302 & 394 of the IPC by the trial Court vide its judgment dated 21st August, 1995.
Thereafter, no criminal antecedent was pointed out on the part of the petitioner. Case of the petitioner is that the petitioner being illiterate did not fill up the attestation form himself and requested one employee of the department to fill-up the same. Thus, replying to column No.12 in negative cannot be held as deliberate, in view of the fact that he was acquitted way back in 1995 and thereafter, he was allowed to work on daily wages basis and subsequently regularized in service by order dated 13th August, 2008. By not filling up the attestation form, as aforestated, it cannot be held that it was the case of suprresio veri suggestio falsi.
20. The petitioner being illiterate could not have understood that he was to inform about his incarceration in jail during pendency of the criminal case wherein he was acquitted long back during his service as daily wager. The authorities must consider the competence of the petitioner for continuing on the post having regard to the total facts and circumstances, as aforestated.
21. The next question asto whether the petitioner was holding the `civil post', on perusal of the order dated 13th August, 2008, whereby services of the petitioner, along with others, were regularized, it does not manifest that his appointment was on probation. It appears that the petitioner after being appointed through scrutiny by order dated 13th August, 2008 became the employee of the State Government. Thus, he was the holder of `civil post' from the date of appointment. The condition of police verification ought to have been done at the earliest, though in this case the petitioner has been working on the post as a daily wager even after his acquittal.
22. The Supreme Court in Dr. Gurjeewan Garewal (Mrs.) v. Dr. Sumitra Dash (Mrs.) and Others3, while considering the meaning of `civil post' under Article 311 of the Constitution of India, observed as under :
"12. At the outset it is to be mentioned that Article 311 cannot be automatically invoked in all the instances where a person is not given an opportunity of hearing.
Article 311 confers certain safeguards upon persons employed in civil capacities under the Union of India or a State. Only persons who are holding "civil posts" can claim the protection provided under Article 311. The 1st respondent could claim the protection of Article 311 only if she holds a "civil post". A Constitution Bench of this Court in State of Assam v. Kanak Chandra Dutta has explained the meaning of "civil post". Here it was held that:
"There is no formal definition of `post' and `civil post'. The sense in which they are used in the services chapter of Part XIV of the Constitution is indicated by their context and setting. . a civil post means a post not connected with defence outside the regular services. A post is a service or employment. A person holding a post under a State is a person serving or employed under the State. . There is a relationship of master and servant between the State and a person holding a post under it. The existence of this relationship is indicated by the State's right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether there is a relation between the State and the alleged holder of a post." (AIR p. 886, para 9) (emphasis supplied)"
23. Thus, the test to hold civil post under the State Government is fully satisfied in the instant case. If the petitioner was holding `civil post', as enshrined under Article 311 (2) of the Constitution of India, he could not be removed from service without affording proper opportunity of hearing and, as such, on this account also, the impugned order cannot sustain.
24. Applying the well settled principles of law to the facts of the present case and for the reasons mentioned hereinabove, the impugned order dated 30th November, 2010 (Annexure - P/5) is quashed. The petitioner be reinstated in service forthwith. However, having regard to the facts situation of the case, the petitioner will not be entitled to any back wages.
25. As an upshot, the writ petition is allowed to the extent indicated above, leaving the parties to bear their own costs.
J u d g e