Allahabad High Court
Sataypal Singh vs State Of U.P. And 2 Others on 16 August, 2018
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved On : 27.07.2018 Delivered On : 16.08.2018 Case :- WRIT - A No. - 22835 of 2016 Petitioner :- Sataypal Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Sunil Kumar Counsel for Respondent :- C.S.C. Hon'ble Neeraj Tiwari,J.
Heard Sri Sunil Kumar, learned counsel for the petitioner and learned Standing Counsel appearing for the respondents.
By way of present writ petition, petitioner is assailing the order dated 4.5.2016 passed by respondent No. 2 by which he was not permitted to join his services on the post of Prabidhik Sahayak- 'C' pursuant to the appointment letter dated 30.01.2016.
Brief facts of the case are that petitioner was selected on the post of Prabidhik Sahayak- 'C' by Uttar Pradesh Public Service Commission, Allahabad (hereinafter referred to as the, 'Commission') in the year 2015 and Commission vide its letter dated 30.05.2015, has communicated the result to Director of Agriculture. Director of Agriculture has approved the selection list vide its letter dated 20.01.2016 and thereafter, appointment letter was issued with certain conditions and two of the conditions are that selected candidates have to submit their joining within one month from the date of issuance of appointment letter and further another condition was that selected candidates shall submit a notary (Halafnama) of Rs. 100/- mentioning certain informations including the reference of any F.I.R., if had been lodged. In appointment letter, no date is mentioned, but in Para 5 of the counter affidavit, date of appointment letter is mentioned as 30.01.2016.
Before petitioner could submit his joining, due to an accident, F.I.R. dated 08.11.2015 under Sections 302 and 201 IPC has been lodged against the petitioner along with other family members and he was arrested. Vide order dated 13.04.2016, he was enlarged on bail by this Court in Criminal Misc. Bail Application No. 7174 of 2016 (Satay Pal Singh Vs. State of U.P.) and approached respondent No. 2 for joining, but his joining was not accepted and he was informed that as F.I.R. had been lodged against him and case is pending, therefore, he could not be permitted to join on the said post. Thereafter, petitioner had made a request to Director of Agriculture and it appears that Director of Agirculture has sought report from the respondent No. 2 and at that stage, impugned letter/order dated 04.05.2016 was issued addressing to Director of Agriculture and copy of that was also forwarded to the petitioner. It has been mentioned in the said letter/order that before his joining, it was found during police verification that a case under Section 302 IPC is registered against him and further his name is mentioned as Satyapal Prasad in the appointment letter, but as per record, his name is Satyapal. Therefore, his joining cannot be accepted and final decision may be taken only after the decision of the case pending in the Court. Hence, the present writ petition challenging the order dated 4.5.2016.
Learned counsel for the petitioner argued that there is no concealment of fact at any point of time and when he has submitted the form before the Commission, even recommendation was made by the Commission to the State Government for issuance of appointment letter, no criminal case was pending against him and only after declaration of result on 30.05.2015, a frivolous F.I.R. has been lodged against him on 08.11.2015 just to prevent him from joining of his services. It is further stated that the F.I.R. has been lodged due to property dispute between sister-in-law (Bhabhi) of petitioner and her sister and suit for cancellation of sale deed is also pending and in all eventuality, petitioner would not be benefited, whether the suit was allowed or dismissed. Learned counsel for the petitioner further argued that there is setteled povisions of law that if there is no concealment of fact, petitioner cannot be deprived from his right of joining of service as he is not concealed any fact at any point of time. After declaration of result, occassion of disclosing of pending criminal case was only at the time of joining in terms of joining letter dated 30.1.2016 and till date, he has not been permitted to join his services.
So far as the controversy of the name is concerned, learned counsel for the petitioner has stated that correct name of the petitioner is Satya Pal which is mentioned in his educational document and he has also filled up the same name in the application form submitted before the U.P. Public Service Commission. In appointment letter, it has been wrongly transcribed as Satya Pal Prasad. He has further stated that respondents may verify this fact by his original application form submitted before the Commission as well as document of education qualification and thereafter he may be permitted to join his services.
Learned counsel for the petitioner further argued that impugned order/letter is also in contravention of Article 311 of Constitution of India and Article 311(2) only provides that in three conditions, direct order of termination or dismissal may be passed but the case of the petitioner is not covered with that. He is not convicted, he is only alleged accused and his case is pending for final decision.
Learned counsel for the petitioner has relied upon several judgments of the Apex Court as well as this Court in which it has been clearly held that even after conviction in a criminal case, a person cannot be punished without adopting procedure of law and lastly prayed that impugned letter/order passed by respondent No. 2 is absolutely contrary to the law laid down by the Apex Court and liable to be quashed.
Learned Standing Counsel has also filed counter affidavit and argued that petitioner fails to join his services within the stipulated time of one month pursuant to the issuance of appointment letter dated 30.01.2016, therefore, his appointment was cancelled and he has further stated that character certificate was called from the Superintendent of Police and it was found that a criminal case being Case Crime No. 645 of 2015 under Section 302/201 I.P.C. is pending against the petitioner at police station Atrauli, District Aligarh. Other facts so mentioned in the writ petition is not denied and there is no allegation of concealment of any fact by the petitioner during the course of his selection or before submission of joining. Therefore, he has finally argued that petitioner has no case and in light of facts mentioned in counter affidavit, petition is liable to be dismissed with cost.
Learned counsel for the petitioner has submitted rejoinder argument and stated that impugned order does not say that he was not permitted to join his services as he fails to join within the time given in the impugned order. Only two facts are mentioned, first is that the case being Case Crime No. 645 of 2015 under Section 302/201 I.P.C. pending against him and there is difference in his name. He has relied upon a judgment of Apex Court in the matter of Mohinder Singh Gill and argued that beyond the facts mentioned in impugned order, respondents cannot improve their case by way of filing affidavits. Therefore, this ground is not available to the respondents which is taken in counter affidavit and cannot be considered in the light of law laid down by the Apex Court.
I have considered the arguements advanced by learned counsel for the parties and perused the records as well as the judgments relied upon.
By the perusal of the writ petition as well as the counter affidavit, this fact is undisputed that there is no allegation against the petitioner that he has concealed any fact at any point of time either appearing in selection process before the Commission or before the State Government and F.I.R. was lodged against him after declaration of result and before issuance of joining letter. It is clear from the records that at no point of time, appointment of petitioner was cancelled by the respondents and by the perusal of the counter affidavit, it was found that no such document is annexed, which shows that appointment of petitioner was cancelled due to failure of his joining within the time given. In para 5 of the counter affidavit an averment was made that due to failure in joining within the stipulated time, appointment of petitioner was cancelled but no date of cancellation of appointment is mentioned. Therefore, it appears to be correct that except issuance of impugned letter dated 4.5.2016, there is nothing on record which can demonstrate that appointment of petitioner has been cancelled by the respondents.
I have also perused the judgments relied upon by the petitioner.
In the case of Union of India Vs. Tulsi Ram Patel, AIR 1985 SC 1416. The Apex Court while considering pare materia provision under Article 311 of Constitution of India, held:-
"The second proviso will apply only where the conduct of a government servant is such as he deserves the punishment of dismissal, removal or reduction in rank. If the conduct is such as to deserve a punishment different from those mentioned above, the second proviso cannot come into play at all because Article 311(2) is itself confined only to these three penalties. Therefore, before denying a government servant his constitutional right to an inquiry, the first consideration would be whether the conduct of the concerned, government servant is such as justified the penalty of dismissal, removal or reduction in rank. Once that conclusion is reached and the condition specified in the relevant clause of the second proviso is satisfied, that proviso becomes applicable and the government servant is not entitled to an enquiry."
A similar question came up for consideration before a Division Bench of this Court in the case of Shyam Narain Shukla Vs. state of U.P., (1988) 6 LCD 530 and this Court held :-
"In view of the above decision of the Supreme Court, it has to be held that whenever a Government servant is convicted of an offence, he cannot be dismissed from service merely on the ground of conviction but the appropriate authority has to consider the conduct of such employee leading to his conviction and then to decide what punishment is to be inflicted upon him. In the matter of consideration of conduct as also the quantum of punishment the employee has not to be joined and the decision has to be taken by the appropriate authority independently of the employee who, as laid down by the Supreme Court, is not to be given an opportunity of hearing at that stage."
Similarly, another Division Bench of this Court in Sadanand Mishra Vs. State of U.P., 1993 LCD page 70 held that on the conviction of an employee in a criminal charge, the order of punishment cannot be passed unless conduct, which has led to his conviction is also considered. Further, it is held that scrutiny of conduct of an employee leading to his conviction is to be done ex parte and an opportunity of hearing is not to be provided for this purpose to the employee concerned.
Similar issue has again came before the Constitution Bench of the Apex Court in the matter of Avtar Singh Vs. Union of India and others 2016 (8) SCC 471 and the Court has held:-
"38.10 For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
38.11 Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."
In the case of Shankar Das Vs. Union of India 1985 (2) SCR 358, Apex Court while referring to power under Clause (a) of second proviso of Article 311 (2) of Constitution of India observed :-
"Be that, power like every other power has to be exercised fairly, justly and reasonably."
Again this matter came up before this Court in Writ-A No. 30973 of 2010 ( Brij Pal Singh Vs. State of U.P. and others) and this Court after considering the provisions of Article 311(2)(a) of Constitution of India as per law laid down by the Court has held as follows:-
"In the present case, respondents have failed to consider the conduct of the petitioner which has led to his conviction before imposing punishment of dismissal by means of impugned order. The impugned order ex-facie does show that disciplinary authority has not applied its mind at all to the conduct led to conviction and quantum of punishment but proceeding ahead to impose punishment as an automatic and natural consequence of conviction, and it cannot be said to be a valid exercise of power under Rule 8(2)(a) of 1991 Rules and therefore, the orders impugned in the writ petition are unsustainable."
So far as the contention raised in Paragraph 5 of the counter affidavit making averment that petitioner could not submit his joining within the stipulated time, similar issue was also came up for consideration before the Apex Court in the matter of Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others 1978 (1) SCC 405 and the Court has clearly held that a case cannot be improved by filing any affidavit. Relevant para of the judgment is quoted below:-
"The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought ,out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji.
Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
Orders are not like old wine becoming better as they grow older:"
In fact, as per law laid down by the Apex Court as well as by this Court, it is required on the part of respondents to show that even in case of conviction, conduct of petitioner which has led to his conviction has been considered by the Competent Authority who is having authority to impose punishment of dismissal upon the petitioner and certainly present case is better than the case considered by the Apex Court as well as this Court for the reason that in those cases even after conviction, punishment order was quashed by the Courts and in present case, there is no dispute that only F.I.R. has been lodged, petitioner has been enlarged on bail and the case is still pending for decision meaning thereby, in the eye of law, he is only alleged accused and not convicted till now. Further, in light of law laid down by the Apex court in the matter of Mohinder Singh Gill (Supra), stand taken by State that petitioner not submitted his joining within the time given in appointment letter, cannot be taken into consideration. Therefore, it was required on the part of the respondents to consider all aspects and legal provisions before not permitting the petitioner to join his services, but without considering this, petitioner was not permitted to join his services, which is bad in law.
In the light of facts and law laid down by the Apex Court, I am of the view that the order passed by respondent No. 2 is absolutely contrary to the provisions of Article 311(2)(a) of the Constitution of India as well as law laid down by the Courts, therefore, not sustainable in the eye of law and is liable to be quahsed. Therefore, the order dated 4.5.2016 is quahsed. Respondents are directed to permit the petitioner to submit his joining in accordance with the appointment letter dated 30.01.2015 after fulfilling the conditions mentioned in the appointment letter within one month from the date of production of certified copy of this order.
However, it is made clear that before permitting the petitioner to join his services, respondents are directed to verify this fact that the petitioner before the Court and person whose name is mentioned in the appointment letter as Satya Pal Prasad is same person or not, for that purpose, respondents are directed to verify this fact from the original application form submitted by the petitioner before the Commission and as per his educational records including certificate and mark sheet. Liberty is also given to the respondents to verify this fact by any other sources, if so required. After completing this exercise, if it is found that Satya Pal Prasad and the petitioner is the same person, he may be permitted to join his services. If it is found that both the persons are different, the respondents shall pass a speaking and reasoned order within the same time i.e. one month from the date of production of certified copy of this order.
With the aforesaid observations, the writ petition succeeds and is allowed.
Order Date :- 16.08.2018 Sartaj