Kerala High Court
Rajendra Prasad Dhaka vs The Director General on 9 June, 2021
Author: Alexander Thomas
Bench: Alexander Thomas, K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE K. BABU
WEDNESDAY, THE 9TH DAY OF JUNE 2021 / 19TH JYAISHTA, 1943
WA NO. 1211 OF 2020
AGAINST THE ORDER/JUDGMENT IN WP(C) 19586/2018 OF HIGH
COURT OF KERALA
APPELLANT/S:
RAJENDRA PRASAD DHAKA, AGED 27 YEARS
CIST FACT UDYOGAMANDAL, S/O.MANGAL CHAND DHAKA,
RESIDING AT VILLAGE AND POST ITAWA, VIA BADHAL,
TEHSIL KISHNAGAD, RENWAL, JAIPUR DISTRICT,
RAJASTHAN - 303 602.
BY ADV T.SANJAY
RESPONDENT/S:
1 THE DIRECTOR GENERAL, CISF HEADQUARTERS, 13, CGOS
COMPLEX, LODHI ROAD, NEW DELHI - 110 003.
2 THE CHAIRMAN, 17TH/18TH STANDING SCREENING
COMMITTEE
CISF HEADQUARTERS, 13 CGOS COMPLEX, LODHI ROAD,
NEW DELHI - 110 003.
3 THE INSPECTOR GENERAL SOUTH SECTOR
CISF (SOUTHERN SECTOR) HEADQUARTERS, CHENNAI -
600 009.
4 THE DY. INSPECTOR GENERAL, 2NDFLOOR, D BLOCK,
RAJAJI BHAVAN, BESANT NAGAR, CHENNAI - 600 090.
5 THE COMMANDANT, CISF UNIT, FACT UDYOGAMANGAL,
ELOOR, UDYOGAMANDAL, ERNAKULAM - 683 501.
6 UNION OF INDIA, REPRESENTED BY SECRETARY,
MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI
- 110 001.
BY ADV SMT.O.M.SHALINA, CGC
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
15.3.2021, THE COURT ON 9.6.2021 DELIVERED THE
FOLLOWING:
WA 1211/20 - : 2 :-
ALEXANDER THOMAS, J. & K. BABU, JJ.
----------------------------------------------------
W.A. No.1211 of 2020
[arising out of order dated 04.11.2019 in W.P.(C). No.19586/2018]
----------------------------------------------
Dated this the 09th day of June, 2021
JUDGMENT
ALEXANDER THOMAS, J.
Being aggrieved by the judgment dated 04.11.2019 rendered by the learned Single Judge dismissing W.P.(C) No.19586/2018 filed by the appellant herein, he has instituted the instant intra court appeal under Sec.5(i) of the Kerala High Court Act. The appellant/writ petitioner, who was regularly selected and working as Constable/Driver in the respondent-Central Industrial Security Force (referred for short as 'CISF'), had approached this Court by filing the aforecaptioned Writ Petition (Civil) challenging the impugned orders at Ext.P10 dated 16.05.2018 issued by the 1st respondent and Ext.P11 order dated 07.05.2018, issued by the 5 th respondent terminating him from service and for a declaration that he is entitled to secure the benefit of declaration of probation and continuance in service, etc.
2. The prayers in the instant writ petition (civil) W.P.(C) No. 19586/2018 are as follows (see page No.56 of the paper book):-
WA 1211/20 - : 3 :-
"i. Issue a writ of certiorari or any other appropriate writ,
direction or order, quashing Exhibits P.10 order of the 1 st respondent and P.11 order of the 5 th respondent terminating the petitioner from the service;
ii. Issue a writ of mandamus directing the 1 st and 2nd respondents to reconsider the decision taken by the Standing Screening Committee of the CISF declaring him unsuitable and recommending for his termination in the light of Rule 21 of the CISF Rules 2001/Clause (v) of Appendix Form A;
iii. Issue a writ of mandamus directing the respondents to reinstate the petitioner into service;
iv. To declare that the petitioner is entitled for declaration of probation and continuance in service on the basis of his superior ratings in the APAR 2016/acquittal by the Trial Court;
v. Issue a writ of mandamus directing the 1 st respondent to produce the records of the deliberations of the 18 th Standing Scrutiny Committee wherein two similarly placed persons were retained in service;
vi. To issue such other reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of the case."
3. Heard Sri.T.Sanjay, the learned counsel appearing for the appellant/writ petitioner and Smt.O.M.Shalina, the learned Central Government Counsel (CGC) appearing for the respondents.
4. The appellant/writ petitioner was appointed and has joined duty as Constable/Driver in the CISF unit, Fertilizers & Chemicals Travancore Ltd. (FACT), Udyogamandal on 08.06.2016, on completion of the requisite training. While so continuing, he had secured gradings of 'very good' in the appraisal reports duly given by his superiors and later, he was served with the impugned Ext.P1 show WA 1211/20 - : 4 :-
cause notice dated 30.05.2017, proposing to terminate his service alleging that he had not disclosed his involvement in a criminal case at the time of submission of the application for the selection, in the questionnaire along with the recruitment application form dated 15.07.2014 and the questionnaire at the medical examination held on 23.04.2015 and that as against the query therein, viz., "was any FIR ever lodged against you in the past" in column No.4 of the aforesaid questionnaire form, the petitioner had stated the answer thereto as "No" and that this amounted to suppression of material facts and violation of the declaration given by him in the application submitted for enrollment in the CISF on 15.07.2014, inasmuch as he was arrayed as accused in a criminal proceedings registered by the Police authorities concerned, though he was later acquitted. It has been further stated therein that the Special Standing Screening Committee constituted by the competent authority of the CISF for examining cases in respect of candidates having involvement in criminal case in the past, had also considered his case and arrived at the conclusion that he is unsuitable for appointment in CISF on account of his involvement in a serious case, for which he was acquitted since the prosecution could not prove the charges beyond reasonable doubt, etc. On receipt of the show cause notice at Ext.P1, the appellant had WA 1211/20 - : 5 :-
submitted reply thereto stating that he is a member of a down trodden family from a Hindi belt State, viz., Rajasthan and he is in extremely poor socio-economic circumstances and that in the absence of anybody to advise him at the relevant time and due to his inadvertence and inability to comprehend the significance of the question, he happened to answer the abovesaid questions in the negative. Further crucially, he would state that he was hardly the age of 21 years at that time and that he happened to make entries at the time of medical examination on advice from certain officials since he was already acquitted by the court. Further that the said case has been falsely foisted against him. Further that in the questionnaire submitted at the time of joining, he himself had voluntarily stated that he had furnished the correct details and, also about the details regarding his involvement in the above criminal case for offences under Secs.3 & 25 of the Arms Act as well as his acquittal by the criminal court were duly furnished and that the certificate of character and antecedents submitted by him has also disclosed all the abovesaid relevant aspects. That, FIR was registered by the police station concerned arraying the appellant as accused therein for offence punishable under Secs.3 & 25 of the Arms Act for possession of a country made pistol on 30.12.2011 and that the prosecution had WA 1211/20 - : 6 :-
miserably failed to produce any evidence against the appellant to prove his involvement in the above crime and that the Judicial Magistrate of First Class, Sambarlake, Jaipur, as per Ext.P2/P2(a) judgment dated 22.01.2013 had acquitted the appellant of the abovesaid offences, etc. The 5 th respondent had later passed Ext.P8 order dated 03.02.2018 holding that, since the petitioner/ appellant had suppressed material facts and as the petitioner secured acquittal in the above criminal case only on the basis of benefit of doubt, etc., he has been found to be unsuitable for appointment in the CISF and hence his selection and appointment has been cancelled thereby. This resulted in the appellant challenging the same by filing writ petition (civil), W.P.(C) No.22245/2017 before this Court. This Court as per Ext.P7 judgment dated 06.07.2017 in W.P.(C) No.22245/2017 had found that the impugned decision taken on the basis of the findings of the Special Standing Screening Committee is not in accordance with the parameters and the legal principles conclusively laid down by the Apex Court in the celebrated case in Avtar Singh v. UOI & Ors [(2016) 8 SCC 471] (paras 30 to 38), etc. and hence accordingly declared that the matter requires serious reconsideration at the hands of the 1st respondent-Director General of CISF untrammeled by the findings in the impugned termination order and WA 1211/20 - : 7 :-
that the 1st respondent-Director General was directed to reconsider the explanations given by the petitioner (Ext.P4 therein) in the light of the legal principles laid down by the Apex Court in Avtar Singh's case supra within one month and that till such time, the impugned order of termination from service shall be kept in abeyance, etc.
5. Pursuant thereto, it appears that the petitioner had re- joined service on 18.07.2017. According to the respondents, the 18 th Special Standing Screening Committee was convened on 05.09.2017 at Hyderabad, which had re-examined the case of the appellant and it has again been found that the appellant is unsuitable for appointment in the CISF and the said finding of the Special Standing Screening Committee was approved by the 1st respondent and communicated to the CISF unit on 01.02.2018. Consequent thereto, termination order was issued by the 5th respondent as per Ext.P8 dated 03.02.2018.
6. The appellant was again constrained to approach this Court by filing W.P.(C) No.3943/2018 so as to challenge Ext.P8. This Court, after hearing both sides, has rendered Ext.P9 judgment dated 05.02.2018 in the said W.P.(C) No.3943/2018 and found that the matter requires judicial interdiction and had thus set aside the orders of termination dated 04.07.2017 and 03.02.2018 and it has been WA 1211/20 - : 8 :-
found that Ext.P8 has been issued in the same manner as in the previous order at Ext.P5 and that Ext.P8 would clearly show that the 1st respondent has not issued any order as directed in Ext.P7 judgment. This Court in Ext.P9 also noted that as per the annual performance assessment report at Ext.P7 for the period from 01.01.2017 to 31.12.2017, the superior authority concerned has reported that the appellant is having gradation of 'very good' in his performance of duties as a Constable/Driver and that a similar report was also furnished in the year 2016. Accordingly, this Court as per Ext.P9 judgment dated 05.02.2018 in W.P.(C) No.3943/2018 had set aside the impugned orders of termination from service (Exts.P5 & P8 therein) and had ordered that it will be open to the 1 st respondent-
Director General to pass orders strictly in tune with the directions contained in the previous judgment at Ext.P7 herein and also taking into account the appraisal reports of the petitioner/appellant, etc.
7. Further it appears that the Special Standing Screening Committee has again examined the case of the petitioner and has made findings at Ext.R5(a). In that regard it appears, that the main findings made by the Special Standing Screening Committee at Ext.R5(a) is that the said Committee has reconsidered the case of the petitioner/ appellant and has found that the petitioner/appellant has WA 1211/20 - : 9 :-
not suppressed information on institution of criminal proceedings against him in the past and his acquittal, and that he has disclosed the same by filling up the attestation form dated 03.12.2015. However, the said Committee found therein that though there is no suppression of material facts on the part of the appellant, it is open to the competent authority to consider the grounds of acquittal and various other relevant aspects to evaluate the suitability of the candidate concerned for appointment and that it has been accordingly found that the appellant was accused in the abovesaid crime and that illegal arm was recovered from his possession and that the trial court has discharged him only on the basis of the uncorroborated evidence of the prosecution witnesses and that taking into account these aspects, the Special Standing Screening Committee has found that the appellant is not suitable for appointment in the respondent CISF, etc. The 1st respondent has thereafter issued the instant impugned Ext.P10 order dated 16.05.2018 holding that the offence as per Sec.25 of the Arms Act is a serious offence as mentioned in the policy guidelines of the MHA dated 01.02.2012 and that the 1 st respondent has also found in Ext.P10 that the superior authorities have graded the appellant as 'very good' in the performance assessment report for the years 2016 & 2017 as per the guidelines. But that since the offence alleged WA 1211/20 - : 10 :-
against the petitioner is a grave one and that he secured acquittal only on the basis of benefit of doubt, it has been reiterated that the appellant is found to be not suitable for appointment in CISF, etc. In pursuance to Ext.P10, the 5th respondent has issued the consequential Ext.P11 order dated 31.05.2018, ordering termination of service of the appellant.
8. So it can be seen that the present writ petition, W.P.(C) No.19586/2018 is the third round of writ litigative proceedings initiated by the petitioner, whereby challenge has been mounted as against the decisions referred to in Exts.P10, P11, etc.
9. The learned Single Judge after hearing both sides has taken the view that it is indisputable that the appellant was arrayed as an accused in the abovesaid FIR/crime registered under Secs.3 & 25 of the Arms Act and that the date of occurrence of the said crime was on 30.12.2011 and that the appellant was acquitted as per ExtP2 judgment dated 22.01.2013. The learned Single Judge has also noted that the alleged offence as per Sec.25 of the Arms Act is an offence treated as a serious one as per the policy guidelines of the MHA dated 01.02.2012 and that the appellant has not disclosed the factum of the crime and the acquittal in the application form submitted on 15.07.2014 and that he has disclosed the same only in the subsequent WA 1211/20 - : 11 :-
declaration given by him on 09.11.2015 that the Special Standing Screening Committee has considered the abovesaid aspects as well as the judgment in the criminal case and has come to the conclusion that the appellant is unsuitable for appointment in the CISF. The learned Single Judge has thus held that the issue is one which requires subjective satisfaction of the appointing authority and once such satisfaction is arrived at after due consideration of all relevant aspects of the matter, it is not for the writ court to interfere in the decision thus taken by the Special Standing Screening Committee. The learned Single Judge has thus held that the relevant aspects have been examined by the competent authorities concerned and that therefore, no interference is called for in the impugned decisions and has thus dismissed the above writ petition as per the impugned judgment rendered on 04.11.2019.
10. Both sides have elaborately made their submissions in the matter. Both sides have also taken this Court's attention to various decisions cited by them. Most of those case laws have been referred to in the impugned judgment of the learned Single Judge.
11. After hearing both sides, it is to be noted that the Special Standing Screening Committee has come to the considered conclusion in Ext.R5(a) that it cannot be said that there is any WA 1211/20 - : 12 :-
substantial suppression of material facts by the appellant in the facts and circumstances of this case. The specific finding made by the Special Standing Screening Committee in Ext.R5(a) is that the appellant/candidate has not suppressed information regarding the institution of the criminal proceedings against him in the past and his acquittal, as he has disclosed the same by filling up the attestation form dated 03.12.2015 at the time of actual appointment to the post. The relevant part of the said findings are contained in internal page No.2 of Ext.R5(a) (given on page 16 of the counter affidavit dated 27.07.2018, filed by the respondents herein in the above writ petition (civil) which is also at page 124 of the paper book in the appeal), and the same reads as follows:-
"RECOMMENDATIONS OF THE SPECIAL SSC: As per the aforesaid directions of the Hon'ble High Court of Kerala and CISF HQrs., this Special Committee re- considered the case of the petitioner and observed that the candidate did not suppress the information of institution of criminal proceedings against him in the past and its acquittal, as he disclosed the same while filling up the attestation form dated 03-12-15 at the time of actual appointment to the Force."
12. The respondents have taken up the contention that since the petitioner has initially not disclosed the abovesaid vital information and had disclosed only later, there is serious suppression of material facts at the instance of the appellant, etc. This has been vociferously and hotly denied by the learned counsel appearing for the appellant. However, the Special Standing Screening Committee WA 1211/20 - : 13 :-
themselves have taken the view that since the appellant has clearly disclosed the abovesaid vital information regarding his involvement in the above crime and his acquittal in the attestation form given on 03.12.2015, there is no substantial suppression of that information by the appellant. The impugned judgment proceeds on the premise as if the abovesaid contention of the respondents that there is serious suppression of material facts by the appellant is applicable in this case. However, this vital aspect of the matter as regards the considered opinion of the Special Standing Screening Committee has not been properly considered and appreciated in its proper perspective in the impugned judgment. In none of the orders passed by the respondent authorities had, in any manner, diverged with the abovesaid findings of the Special Standing Screening Committee made as per Ext.R5(a). On the other hand, the impugned orders have placed full reliance on Ext.R5(a) inasmuch as the latter findings of the Special Standing Screening Committee are to the effect that though there is no suppression of material facts, as the petitioner has involved in a serious offence and as illegal arm was recovered from his possession and he secured acquittal only on the basis of uncorroborated evidence of the prosecution witness, etc., he is to be treated as not suitable for appointment in the CISF, etc. Since the WA 1211/20 - : 14 :-
respondent authorities themselves have not in any manner disputed with the fact findings made by the Special Standing Screening Committee at Ext.R5(a), the positive finding made in his favour by the Special Standing Screening Committee is also equally binding on the respondents. Hence we are of the firm opinion that in view of the abovesaid considered findings of the Special Standing Screening Committee, it cannot be said that there has been any substantial suppression of material facts at the hands of the petitioner and the contentions, to the contrary, raised by the respondents will stand thus overruled.
13. The detrimental findings in Ext.R5(a), Ext.P10 & Ext.P11 would proceed on the premise that the appellant has been evaluated to be unsuitable for appointment in the CISF, as he was involved in an offence which is treated as a serious offence as per the MHA guidelines and as illegal arms have been recovered from his possession and as he secured acquittal only on the basis of uncorroborated evidence of the prosecution witnesses and that the acquittal was only on the basis of the benefit of doubt and that considering these aspects, the petitioner has been found to be not suitable for appointment in the CISF and that therefore his appointment order deserves to be cancelled, etc. WA 1211/20 - : 15 :-
14. In that regard, it may be pertinent to evaluate the impact of Ext.P2 judgment of acquittal rendered on 22.01.2013 by the jurisdictional Magistrate Court concerned. The appellant was a young lad hardly the age of 20 years at the relevant time. The allegations are to the effect that when the police officials had gone for patrolling, they had seen one boy, who had started running towards the fields on seeing the police and he was caught with the help of another person and his name and address were thus revealed and on searching him, a native revolver was found in the left pocket of his pants, for which there was no licence and that therefore, the appellant has committed the offences as per Secs.3 & 25 of the Arms Act.
15. Per contra, the case of the appellant is that the case was falsely foisted on him only on account of the caste and community rivalry in his native village at Rajasthaan. It may be pertinent to refer to some of the relevant portions of Ex.P2 judgment of acquittal, which are given below:-
"05. The charged was examined u/s 313 of Arms Act in which he stated that the prosecution witness against him were wrong and he was being trapped out of conspiracy and declared himself as innocent. He also stated that he did not desire to produce any witness in his defense.
xxx xxx xxx
10. ... .......During cross examination (PW-2) he has accepted that seizure of the country made revolver was not done by him. It was also stated that the place of incident is not populated and when he went to take the map nobody else was present.
WA 1211/20 - : 16 :-
xxx xxx xxx
12. PW-2 Rameshwar Lal and PW-3 Jagdish Prasad both have stated that on 30.12.2011, the police had not seized the country made revolver in their presence nor was Raju Alias Rajender arrested in front of them......
13. ...... He does not remember how many days after the incident, the map was taken by the Investigation officer (PW-4)
14. He does not remember how many days after the incident, the statement was taken. He also stated that his signature was not taken on the map (PW-5).
15. ....... During cross-examination (PW-6), he stated that the packet was not sealed in front of him.
16. ...... On cross examining, PW-7 stated that arrest and seizure action were undertaken by ASI Dayanand and his statement was taken on the day of filing the case.
17. ....... However, he further stated he had not operated it. He cannot say up to what distance it can fire (PW-8).
18. .......... On cross examining, he stated that the report was filed as prosecution Exhibit P.6, but PW-4 also certified that it is not his writing and it was got made by Constable Sitaram. ....
19. ...... They stated that they were made to sign on blank paper by the Police (PWI & PW2).
20. ........ This witness on cross examination has stated that when he made the map marked as exhibit P.1, no one was present, whereas PW.4 Dayanand has stated that the map was made by the investigator on his directions. Witness Mahadev Prasad PW.5 has stated that investigator took him along while going to make up the map. Thus there is great discrepancy in this statement.
21. ... Witness Mahadev on cross examination has stated that police station was one KM way whereas Dayanand has stated the distance as 20 km....
22. ..... He has not operated it and is not aware as to the distance up to which it can fire (PW-8)
23..... The prosecution produced two independent witnesses PW.2 Rameshwar Lal and PW3 Jagdish Prasad, but both these witnesses, who were the main witnesses turned hostile and did not support the prosecution side even a single bit. Thus the prosecution has been unsuccessful in proving the seizure. In addition, other witnesses who were police personnel also made prevaricating statements and there was great discrepancy and contradiction in their statements. In this connection, it has been stated in case of Sadhu Singh Vs State of Punjab by the Hon'ble High Court of Punjab WA 1211/20 - : 17 :-
& Haryana that it is responsibility of the prosecution to prove its case beyond doubt, if prosecution is unable to prove them beyond doubt, then benefit of doubt should be given to the accused. Thus, the prosecution has been unable to prove its case beyond doubt.
24. As per the above discussion, Prosecution has been unable to prove case U/S 3/25 of Arms Act against the accused Rajender alias Raju.
Hence, Rajender is given the benefit of doubt and is fit to be acquitted."
16. It is common ground that Ext.P2 judgment of acquittal has become final and conclusive and the same has not been challenged in the manner known to law. A perusal of Ext.P2 judgment of acquittal would clearly show that even as per the case of the prosecution, the incident was witnessed only by police officials and that there were no independent witnesses. All the police officials concerned have not, in any manner, supported the allegations of the prosecution. From the depositions of the police officials concerned it can be seen that even the factum of seizure of weapon (gun) from the alleged possession of the appellant, has not been proved. The trial court has found that the prosecution witnesses have been unsuccessful in proving the seizure and the other witnesses, who are also police personnel, have made prevaricating statements and there has been great discrepancy and contradictions in their statements. It may be true that the trial court in para No.23 of Ext.P2 judgment has made reference to a judgment rendered by the Punjab & Haryana High Court in Sadhu Singh v. State of Punjab, wherein it has WA 1211/20 - : 18 :-
been held that it is the responsibility of the prosecution to prove its case beyond doubt and that if the prosecution is unable to prove that beyond doubt, then the benefit of doubt should be given to the accused, etc. Ultimately the trial court finds that the prosecution has been unable to prove its case beyond doubt.
17. Though there is such a passing reference by the trial court in para No.23 about benefit of doubt, a reading of the judgment would clearly show that the trial court has come to the substantial findings, after due appreciation of evidence given by all the prosecution witnesses including the police personnel and the independent witnesses that none of them has given any evidence so as to implicate the petitioner in the above criminal proceedings. The scope and ambit of the expression 'honourable acquittal' has come up for consideration before the Apex Court in various cases as in Management of Reserve Bank of India, New Delhi vs. Bhopal Singh, Punjab [(1994) 1 SCC 541] wherein it has been clearly held that "when the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can be possibly be said that the accused was honourably acquitted". The Apex Court in the case in Inspector General of Police v. S. WA 1211/20 - : 19 :-
Samuthiram [(2013) 1 SCC 598] has also laid down the meaning of the concept of 'Honourable acquittal' in the criminal procedings as follows:-
"......... The expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honourably acquitted". When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted."
18. It may also be relevant to note that in the case in Pratul Bhattacharjee v. The State of Assam [(1987) 2 Crimes 816 (Guwahati)] it has been held in para No.5 thereof that "trial courts should be very cautious in using that expression in a case where government servant is involved. It should not be used as a fashion or ornamently if not warranted, because the expression may be detrimental to the service career of the person getting acquittal. When the trial court comes to the finding that the prosecution totally fails to prove the charges, then use of the expression, "benefit of doubt" in acquitting the accused is improper and illegal."
19. In the light of the aforesaid elementary legal principles in criminal jurisprudence, we are of the firm view, based on a perusal of Ext.P2/Ext.P2(a) judgment of acquittal that in the instant case, the accused has been acquitted by the trial court after full consideration WA 1211/20 - : 20 :-
of the prosecution evidence and prosecution has miserably failed to prove the charges levelled against him and hence the said judgment at Ext.P2(a) has to be treated as a judgment of honourable acquittal.
20. That apart, it is very crucial to note that the detrimental findings of the Special Standing Screening Committee as against the appellant as per Ext.R5(a) (given on internal page 2 thereof) are as follows:-
".......However, taking into consideration of the ruling given by Hon'ble Apex Court in Avtar Singn Vs. UOI : (2016) 8 SCC 471 para 31) ...if his case was not pending when form was filled, in such matters, employer is bound to consider grounds of acquittal and various other aspects, overall conduct of employee including the accusations which have been leveled. If on verification, the antecedents are otherwise also not found good and in number of cases incumbent is involved then notwithstanding acquittals in case/cases, it would be open to the employer to form opinion as to fitness on the basis of material on record". In the case of the candidate, he was the only accused in the crime case and the illegal arm was recovered from his possession. The I.d. trial Court also discharged him only on the basis of the un-corroborative evidences of the prosecution witnesses and as such the charges were not proved beyond reasonable doubts. Hence, this Special Screening Committee collectively endorses the recommendation already arrived at by the 17 th Standing Screening Committee in finding the candidate "unsuitable" for employment in an Armed Force of the Union like CISF."
It can thus be seen from a reading of the latter portion of the abovesaid findings at Ext.R5(a) that the main adverse findings are to the effect that in the said criminal case, illegal arm was recovered from the possession of the appellant in a case involving in Sec.25 of the Arms Act, which is treated a serious offence as per the MHA guidelines and that the petitioner could secure acquittal only on the basis of uncorroborated evidence of the prosecution witnesses, etc. WA 1211/20 - : 21 :-
and so he is to be treated as unsuitable for appointment under CISF. The abovesaid crucial adverse findings in Ext.R5(a) to the effect that though the petitioner has secured judgment of acquittal by the criminal trial court, the factum regarding recovery of the illegal arm from his possession has been proved in the said criminal case. The said crucial finding made by the Special Standing Screening Committee in the latter portion of Ext.R5(a) is absolutely factually wrong and incorrect, as can be seen from a reading of Ext.P2(a) judgment of acquittal. The trial court has conclusively found in Ext.P2(a) judgment that even the crucial fact of seizure of the alleged weapon from the possession of the appellant/accused has not even been proved by any of the witnesses concerned. Ext.R5(a) is the foundation for justifying the impugned orders at Ext.P10 & Ext.P11. Ext.R5(a) is thus vitiated by taking into account factually wrong aspects regarding the alleged recovery of illegal arms from the possession of the appellant in the above criminal case.
21. Though both sides have referred to various case laws, in the matter, we are of the considered opinion that the main decision to be examined in this case is the celebrated case in Avtar Singh v. UOI & Ors. [(2016) 8 SCC 471] rendered by a three-judges Bench of the Apex Court on 21.7.2016. It may be profitable to refer to paras 30 to WA 1211/20 - : 22 :-
37 of the abovesaid judgment of the Apex Court in Avtar Singh's case (supra), which read as follows:
'30. The employer is given "discretion" to terminate or otherwise to condone the omission. Even otherwise, once employer has the power to take a decision when at the time of filling verification form declarant has already been convicted/acquitted, in such a case, it becomes obvious that all the facts and attending circumstances, including impact of suppression or false information are taken into consideration while adjudging suitability of an incumbent for services in question. In case the employer comes to the conclusion that suppression is immaterial and even if facts would have been disclosed it would not have adversely affected fitness of an incumbent, for reasons to be recorded, it has power to condone the lapse. However, while doing so employer has to act prudently on due consideration of nature of post and duties to be rendered. For higher officials/higher posts, standard has to be very high and even slightest false information or suppression may by itself render a person unsuitable for the post. However, same standard cannot be applied to each and every post. In concluded criminal cases, it has to be seen what has been suppressed is material fact and would have rendered an incumbent unfit for appointment. An employer would be justified in not appointing or if appointed, to terminate services of such incumbent on due consideration of various aspects. Even if disclosure has been made truthfully, the employer has the right to consider fitness and while doing so effect of conviction and background facts of case, nature of offence, etc. have to be considered. Even if acquittal has been made, employer may consider nature of offence, whether acquittal is honourable or giving benefit of doubt on technical reasons and decline to appoint a person who is unfit or of dubious character. In case employer comes to conclusion that conviction or ground of acquittal in criminal case would not affect the fitness for employment, incumbent may be appointed or continued in service.
31. Coming to the question whether an employee on probation can be discharged/refused appointment though he has been acquitted of the charge(s), if his case was not pending when form was filled, in such matters, employer is bound to consider grounds of acquittal and various other aspects, overall conduct of employee including the accusations which have been levelled. If on verification, the antecedents are otherwise also not found good, and in number of cases incumbent is involved then notwithstanding acquittals in a case/cases, it would be open to the employer to form opinion as to fitness on the basis of material on record. In case offence is petty in nature and committed at young age, such as stealing a bread, shouting of slogans or is such which does not involve moral turpitude, cheating, misappropriation, etc. or otherwise not a serious or heinous offence and accused has been acquitted in such a case when verification form is filled, employer may ignore lapse of suppression or submitting false information in appropriate cases on due consideration of various aspects.
32. No doubt about it that once verification form requires certain information to be furnished, declarant is duty-bound to furnish it correctly and any suppression of material facts or submitting false information, may by itself lead to termination of his services or cancellation of candidature in an WA 1211/20 - : 23 :-
appropriate case. However, in a criminal case incumbent has not been acquitted and case is pending trial, employer may well be justified in not appointing such an incumbent or in terminating the services as conviction ultimately may render him unsuitable for job and employer is not supposed to wait till outcome of criminal case. In such a case non-disclosure or submitting false information would assume significance and that by itself may be ground for employer to cancel candidature or to terminate services.
33. The fraud and misrepresentation vitiates a transaction and in case employment has been obtained on the basis of forged documents, as observed in M. Bhaskaran case [Union of India v. M. Bhaskaran, 1995 Supp (4) SCC 100 : 1996 SCC (L&S) 162 : (1996) 32 ATC 94] , it has also been observed in the reference order that if an appointment was procured fraudulently, the incumbent may be terminated without holding any inquiry, however, we add a rider that in case employee is confirmed, holding a civil post and has protection of Article 311(2), due inquiry has to be held before terminating the services. The case of obtaining appointment on the basis of forged documents has the effect on very eligibility of incumbent for the job in question, however, verification of antecedents is different aspect as to his fitness otherwise for the post in question. The fraudulently obtained appointment orders are voidable at the option of employer, however, question has to be determined in the light of the discussion made in this order on impact of suppression or submission of false information.
34. No doubt about it that verification of character and antecedents is one of the important criteria to assess suitability and it is open to employer to adjudge antecedents of the incumbent, but ultimate action should be based upon objective criteria on due consideration of all relevant aspects.
35. Suppression of "material" information presupposes that what is suppressed that "matters" not every technical or trivial matter. The employer has to act on due consideration of rules/instructions, if any, in exercise of powers in order to cancel candidature or for terminating the services of employee. Though a person who has suppressed the material information cannot claim unfettered right for appointment or continuity in service but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity having due regard to facts of cases.
36. What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by authorities concerned considering post/nature of duties/services and power has to be exercised on due consideration of various aspects.
37. The "McCarthyism" is antithesis to constitutional goal, chance of reformation has to be afforded to young offenders in suitable cases, interplay of reformative theory cannot be ruled out in toto nor can be generally applied but is one of the factors to be taken into consideration while exercising the power for cancelling candidature or discharging an employee from service.' WA 1211/20 - : 24 :-
22. The legal principles have been summarised in para No.38, more particularly in subparas 38.1 to 38.11 of Avtar Singh's case (supra) which reads as follows:-.
"38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of the aforesaid discussion, we summarise our conclusion thus:
38.1. Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information. 38.2. While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.
38.3. The employer shall take into consideration the government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
38.4. In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourses appropriate to the case may be adopted:
38.4.1. In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
38.4.2. Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
38.4.3. If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.
38.5. In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate. 38.6. In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion, may appoint the candidate subject to decision of such case.
WA 1211/20 - : 25 :-
38.7. In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper. 38.8. If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.
38.9. In case the employee is confirmed in service, holding departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form. 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.'
23. The impugned judgment in this case proceeds on the premise that the matter is one which requires subjective satisfaction of the appointing authority and once that satisfaction is arrived at after consideration of all the relevant aspects, then it is not for the writ court to interfere with the impugned decision, etc. (see para No.7 of page 9 of the impugned judgment). At the outset it has to be noted that it has been clearly held by the Apex Court in paras 34 & 35 in Avtar Singh's case (supra) that though it is open to the employer to adjudge the antecedents of the incumbents, the ultimate action should be based up on objective criteria from due consideration of all WA 1211/20 - : 26 :-
relevant aspects. So also, it has been reiterated by the Apex Court in para No.35 thereof that though a person, who has suppressed material information, cannot claim unfettered right for appointment for continuity of service, but he has a right not to be dealt with arbitrarily and exercise of power has to be in a reasonable manner with objectivity having due regard to the facts of the case. In para 36 of Avtar Singh's case (supra) it has been precised by the Apex Court that the yardstick to be applied would depend upon the nature of the post and that the higher posts would involve more rigorous criteria for all services and not merely to uniform services. But that for lower posts, which are not sensitive, nature of duties, impact of suppression of suitability has to be considered by the authorities concerned considering their posts/nature of duties/ services and the power has to be exercised on consideration of various aspects. In the instant case, it has been conclusively found by the Special Standing Committee as per Ext.R-5(a) that there has been no substantial suppression of material facts by the appellant in view of the aspects mentioned herein above.
24. Now, what has to be examined is as to the applicability of the various parameters and legal principles laid down by the Apex Court in para No. 38 of Avtar Singh's case (supra). Paras 38.1 to WA 1211/20 - : 27 :-
38.4 thereof would deal with a case of suppression of material facts.
In view of abovesaid conclusive findings made by the Special Standing Committee at Ext.R-5(a), those parameters will not apply in the instant case as the competent authorities themselves have found that there has been no substantial suppression of material facts by the appellant in this case. Para 38.7 will not apply in this case as there has been no other criminal case against the appellant other than the one at Ext.P-2. Paras 38.8 to 38.10 also will not apply in the facts and circumstances of this case. Even in a case where there has been no suppression of material facts, still the employer has the right to consider the antecedents of the candidate and may evaluate as to whether the acquittal is a clean acquittal or not, or whether it is only on the basis of benefit of doubt, and whether all relevant facts available to the antecedents could pinpoint necessarily to the non- suitability or unsuitability of the candidate concerned as envisaged in paras 38.4.3 & 38.5. As already held herein above, the abovesaid crucial adverse finding made by the Special Standing Committee in the latter portion Ext.R-5(a) to the effect that illegal arm was actually recovered from the possession of the appellant in the abovesaid criminal case, etc. is completely wrong and erroneous. For the reasons stated by us herein above, the abovesaid judgment of WA 1211/20 - : 28 :-
acquittal cannot be construed merely as an acquittal on technical grounds, but has to be treated as a clean acquittal or honourable acquittal as stated herein above. The prosecution witnesses including the police personnel and the independent witnesses have not given any evidence whatsoever against the appellant. So, it has to be only treated that the judgment of acquittal is a clean or honourable acquittal in favour of the accused.
25. The respondents have placed reliance on Ext.R-5(b) guidelines dated 01.02.2012 issued by Government of India in the Ministry of Home Affairs. In that regard, the appellant has pointed out that consideration of appellant's case has to be strictly in accordance with the legal principles laid down by the Apex Court in Avtar Singh's case supra, which has been rendered on 21.07.2016. It is also pointed out that a Division Bench of the Delhi High Court in the judgment rendered on 13.09.2018 in WP(C) No.2927/2017 in the case in Naveen Kumar. v. Union of India & Others, has held in para 12 thereof that the act of the respondent authorities in continuing to rely on the above said policy guidelines dated 01.02.2012 issued by the MHA may not be proper, inasmuch as, the said guidelines rendered on 01.02.2012 have been without taking note of the subsequent decision of the Apex Court in Avtar Singh's WA 1211/20 - : 29 :-
case supra rendered on 21.07.2016. Accordingly, the Division Bench of the Delhi High Court in the said judgment has directed the respondent authorities concerned to undertake fresh exercise to formulate proper policy guidelines in strict compliance of the parameters and legal principles laid down by the Three-Judge Bench of the Apex Court in Avtar Singh's case (supra) etc. From a reading of present pleadings it is seen that the respondents are still trying to justify their action on the basis of the very same guidelines [Ext.R-5(b) herein] issued on 01.02.2012.
26. Be that as it may, para v of Ext.R-5(b) would inter alia provide that notwithstanding the provisions contained in Clause 3
(iii) thereof, such candidates against whom charge sheet in a criminal case has been filed in the criminal court and charges fall in the category of serious offence or moral turpitude, though later on acquittal by extending benefit of doubt or acquitted for the reasons that the witnesses have turned hostile due to fear or reprisal by accused persons, then he/she will generally not be considered for suitable for appointment, etc. It is true that the alleged offence as per Sec.25 of the Arms Act is to be treated as a serious offence in terms of Ext.R-5(b) guidelines. In the instant case, one of the grounds urged by the respondents is that most of the prosecution witnesses turned WA 1211/20 - : 30 :-
hostile, and that therefore the above quoted provision in para v of Ext.R-5(b) would apply. We have already held that the judgment of acquittal at Ext.P-2(a) has to be construed as a judgment of honourable acquittal in favour of the appellant, and not merely on the basis of acquittal on certain technical grounds or merely on the basis of benefit of doubt, etc. As regards the issue that the witnesses have turned hostile, etc. it has to be borne in mind that the respondent authorities or the prosecution authorities have no case either the criminal proceedings referred to in Ext.P-2/P-2(a) or in any of the impugned proceedings herein that, the abovesaid prosecution witness had turned hostile only on account of fear or reprisal caused in the minds by the appellant. In that regard, the respondents do not have any whisper of the case anywhere that the appellant is socially, economically or politically well connected and powerful and that there are strong circumstances to suggest that the appellant had caused fear of reprisal in the minds of the prosecution witnesses, and that the prosecution witnesses have thus become hostile only on account of these aspects, etc. A reading of the materials in relation to the above impugned criminal proceedings would show that the entire police machinery of the locality was against the petitioner. The appellant has clearly stated that, he belongs to the down trodden WA 1211/20 - : 31 :-
sections of society etc. In the absence of any proper and relevant materials so as to pinpoint that the prosecution witnesses have become hostile only on account of such fear of reprisal caused by him on the prosecution witnesses, majority of whom are all police personnel, the abovesaid provision at Clause v of Ext.R-5(b) cannot be pressed into service against the appellant. None of these crucial aspects has been taken note of by the respondent authorities in the issuance of the impugned proceedings at Ext.R-5(a), Exts.P-10, P-11, etc. On the other hand, despite interdiction made by this Court in judicial review in the previous two litigative rounds, the respondents have mechanically arrived at the very same conclusion. The former portion of the findings in Ext.R-5(a) is fully in favour of the appellant inasmuch as, it has been conclusively found that there has been no substantial suppression of material facts by the appellant. The crucial and main adverse finding in the latter portion of Ext.R-5(a) is vitiated by assuming completely wrong and incorrect facts as mentioned hereinabove. The appellant has secured an honourable acquittal, which has become final and conclusive.
27. Both in Ext.P7 & Ext.P9 judgments, this Court had consistently directed the respondents to reconsider and take a decision in the matter strictly in compliance with the parameters and WA 1211/20 - : 32 :-
legal principles laid down by the Apex Court in Avtar Singh's case (supra). This Court had particularly directed in Ext.P9 judgment that the subsequent APR gradings of the appellant should also be duly taken note of. It is indeed admitted by the respondent authorities in Ext.P10 & Ext.P11 that the superior authorities had graded the appellant as 'very good' both for the periods of 2016 & 2017. That apart, it is factually indisputable that none other than the Local Commandant of his unit had found it fit to repose his confidence in the appellant in having posted him as the personal driver to the Local Commandant. If the antecedents and conduct of the appellant, in any manner, were bad or suspicious, then certainly the Commandant would not have posted the appellant as his personal driver. The abovesaid direction in Ext.P9 to take into account the service assessment reports of the appellant for the year 2016 & 2017 has become final and conclusive. It is indeed admitted by the respondents that the APR gradings of the appellant for the years 2016 & 2017 have been rated as 'very good'. These relevant and crucial aspects of the matter have been given a total go-by by the respondent authorities by stating irrelevant grounds as in Ext.R5(a), Ext.P10 & Ext.P11 that illegal arm was actually recovered from the possession of the appellant and that the acquittal is only on the basis of benefit of WA 1211/20 - : 33 :-
doubt, etc. That apart, Ext.P-4 certificate dt. 1.12.2015 would show that the District Magistrate, after conducting proper enquiries and after referring to the above FIR & the judgment of acquittal has clearly certified that the appellant has good character and reputation and has no adverse antecedents so as to render him unsuitable for Govt. employment. Now even Ext.P-4 has also been totally ignored. The above aspects would clearly and categorically show that the impugned decision holding that the petitioner is unsuitable for appointment and continuance in service is highly unreasonable and improper and if all the relevant aspects adverted to herein above have been duly taken into consideration, then the said decision could not have been rendered by the competent authority concerned. Hence the matter would seriously warrant interdiction in the public law proceedings in judicial review, more particularly as the parameters laid down by the Apex Court in the celebrated Avtar's Singh's case supra for interference in the matter are duly fulfilled in this case. The appellant was hardly the age of 20 or 21 at the relevant time and he has efficiency and loyalty to the organization as can be seen from the abovesaid aspect. The Apex Court has clearly and categorically held in Avtar Singh's case supra that the approach of "McCarthyism" is antithesis to our constitutional goal, chance of WA 1211/20 - : 34 :-
reformation has to be afforded to young persons in suitable cases, etc. In para 24 of Avtar Singh's case supra the Apex Court had referred to a decision involving a young Police constable aged 20 years, who had allegedly concealed his involvement in a criminal case and had referred to the famous character, Jean Valjean in Victor Hugo's celebrated novel, 'Les Miserables', etc. This is the third round of writ litigative proceedings. No worthwhile purpose would be effectuated by again remitting the matter to the government authority concerned. The appellant has been waiting for justice for a very long time. None of these crucial aspects has been duly taken note of in the impugned judgment. In the light of the abovesaid aspects, we are constrained to take the view that the impugned decision of the respondents is illegal and is in flagrant of the fundamental rights guaranteed to the petitioner under Articles 14, 16 and 21 of the Constitution of India.
28. The appellant has also pointed out that two other incumbents, who had faced more serious criminal charges have been given favourable recommendations by the Standing Screening Committee and that they have been reinstated in service. In that regard, the abovesaid recommendations of the Special Standing Screening Committee have been produced in page Nos.4 to 8 of Ext.
R5(a) produced along with the statement dated 04.11.2018 filed by WA 1211/20 - : 35 :-
the respondents in the W.P.(C). Internal pages 4 & 5 thereof deal with one Anuj Kumar, who has charged with offences as per Secs.147, 148, 336, 354, 427 IPC and Sec.7 of the Criminal Law Amendment Act. The allegations are to the effect that the accused person had restricted the movement of vehicles and had misbehaved with the passengers. Internal pages 6 & 7 thereof deal with a case of one Kishore Prasad Dey, who was charged with the offences as per Secs.498A of the IPC, etc. The appellant prima facie has made out a strong case that the manner of treatment of appellant's case by the standing committee is divergent from that given in the case of other persons mentioned hereinabove. However, there is no necessity for us to make any final opinion in the said matter as sufficient grounds have already been made out to interfere in judicial review in this case.
29. Accordingly, it is ordered that the impugned judgment dated 04.11.2019 rendered by the learned Single Judge dismissing W.P.(C) No.19586/2018 will stand set aside. Further it is ordered that the impugned orders at Ext.P10 & Ext.P11 will stand quashed.
The respondents, more particularly, the competent authority among the respondents are directed to immediately reinstate the petitioner/ appellant in service, at any rate within a period of one month from the date of receipt of a certified copy of this judgment. The WA 1211/20 - : 36 :-
respondent authority concerned shall also pass necessary orders in the matter of declaration of probation of the appellant in accordance with the rules and in the light of the findings and observations in this judgment, within 1 month thereafter. If the appellant has any other grievances, it is for him to file representation on those aspects, before the competent respondent authority concerned, who will then pass orders thereon, after affording hearing to the petitioner within 6 weeks from the date of filing of such representation.
With these observations and directions, the above Writ Appeal will stand finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE Sd/-
sdk+ K. BABU, JUDGE Skk//09062021