Allahabad High Court
Prabhakar Rai vs Union Of India And Ors. on 17 November, 2015
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 59 Case :- WRIT - A No. - 22323 of 1996 Petitioner :- Prabhakar Rai Respondent :- Union Of India And Ors. Counsel for Petitioner :- D.S.P. Singh,Awadhesh Rai,S.P.Singh,S.R.Singhal Counsel for Respondent :- S.C.,K.C.Sinha,R.Sinha,Rajiv Joshi,S.R.,U.N. Sharma Hon'ble Ashwani Kumar Mishra,J.
1. This writ petition is directed against the orders dated 29.4.1994, 17.1.1995 and 27.3.1996, whereby petitioner has been terminated from employment, by giving one month's notice, and has been affirmed in appeal and in departmental revision.
2. Petitioner contends that he had participated in open competition, and was selected for appointment as a Constable (General Duty) in C.R.P.F. on 6.10.1993. Pursuant to such selection, petitioner was appointed, and he joined and worked for about 8 months. A notice was thereafter issued to the petitioner invoking the powers under sub-rule 1 of Rule 5 of The Central Civil Services (Temporary Service) Rules, 1965, readwith Rule 16 of The Central Reserve Police Force Rules, 1955, terminating his services by giving him a month's notice. It is in pursuance to the said notice that the services of petitioner were actually discharged w.e.f. 3.6.1994. Petitioner thereafter claims to have submitted a representation stating that on account of a family dispute, he had been falsely implicated in a criminal case, in which he has already been discharged, and therefore, no occasion has arisen for the authorities to have terminated his services. A departmental appeal was also preferred by the petitioner against the order, which has been rejected. Aggrieved by such orders, petitioner approached this Court by filing Writ Petition No.7946 of 1995, which was dismissed after noticing that petitioner has a remedy of filing revision against the orders impugned. Petitioner, consequently, preferred a revision before the Director General, annexing therewith the order passed by the criminal court in Sessions Trial No.472 of 1993, conducted under Sections 395, 397 and 307 I.P.C., in which the petitioner had been acquitted in the absence of evidence. The revisional authority noticed the contentions of the petitioner, and it was recorded that the petitioner had in fact suppressed the pendency of criminal case against him, while seeking employment in the C.R.P.F. A false disclosure had been made before the authorities that there was no criminal case pending against him. Since the petitioner had obtained appointment on the strength of suppression of material facts, therefore, the revisional authority also found no infirmity in action of the respondents in discharging him from services. Aggrieved by the aforesaid orders, petitioner has filed the present writ petition.
3. Learned counsel for the petitioner, with reference to the judgment passed in sessions trial, submits that petitioner had been falsely implicated, inasmuch as there was a dispute of landed property within the family, and it was only for ulterior reasons that he had been implicated in a criminal case in the year 1988. It is stated that there was neither any injury caused to anyone nor any evidence was led, and it appears that better sense prevailed upon the family members, and as such, the criminal proceedings were not pursued any further, resulting in acquittal of the petitioner. Learned counsel also submits that Senior Superintendent of Police had also issued a certificate to the petitioner clearly stating that implication of petitioner was in a cross case, which apparently was for settling the inter se disputed within the family, in which the petitioner has already been acquitted, and therefore, no further complaint against the conduct of petitioner had been noticed.
4. Learned counsel for the petitioner relies upon a decision of the Hon'ble Supreme Court in the case of Ram Kumar Vs. State of U.P. and others, passed in Civil Appeal No.7106 of 2011, dated 19th August, 2011, as well as the judgment passed by the Hon'ble Supreme Court in the case of Jainendra Singh Vs. State of Uttar Pradesh Tr. Prinl. Sec. Home, in Civil Appeal No.5671 of 2012, dated 30th July, 2012, wherein the matter had been referred to a Larger Bench, after noticing conflict in the decisions rendered by the Hon'ble Supreme Court. Reference has been made to the decisions in Commissioner of Police, Delhi Vs. Dhaval Singh [1999 (1) SCC 246], Kamal Nayan Mishra Vs. State of Madhya Pradesh and others [2010 (2) SCC 169] and Commissioner of Police and others Vs. Sandeep Kumar [2011 (4) SCC 644]. Learned counsel, with reference to the aforesaid decisions, contend that the authorities were under an obligation to independently examine as to whether on the basis of materials brought on record, petitioner was found unfit for employment, and as no such exercise had been undertaken, the order of discharge from services is bad in law.
5. Sri Ashok Singh, learned counsel appearing for the respondents, on the other hand, submits that the judgments, which have been relied upon by the learned counsel for the petitioner do not apply in the facts of the present case, inasmuch as the petitioner in the instant case was merely a probationer, and was yet to be confirmed. Learned counsel refers to the provisions of Rule 16 of the C.R.P.F. Rules, 1955, which prescribes a period of three years, as being the period of probation. It is submitted that petitioner was within the period of probation when an order of discharge simpliciter had been passed against him, and as such, the ratio laid down in the judgment of Ram Kumar (supra) had no applicability.
6. Learned counsel for the respondents, on the other hand, relies upon a Division Bench judgment of the Gujarat High Court in the case of Dilbag Singh Marashi Vs. Commandant and others, passed in Special Civil Application No.850 of 2013, dated 2nd February, 2015, to contend that in the case of a probationer, it is always open for the employer to consider the suitability of the candidate, and if it is found that he had suppressed material facts at the time of seeking appointment, then such fact would be sufficient to form an opinion with regard to non-suitability of the candidate for the post in question, and discharge simpliciter in such circumstances cannot be faulted. Learned counsel has also placed reliance upon para 14 of the judgment of the Supreme Court in the case of Kamal Nayan Mishra Vs. State of Madhya Pradesh and others (supra), wherein it has been clearly observed that in the case of a probationer, his services could be terminated without holding any enquiry in such circumstances. Reliance has also been placed upon the judgment of the Hon'ble Supreme Court in the case of Devendra Kumar Vs. State of Uttaranchal [2013 (9) SCC 363].
7. Having heard learned counsel for the parties at length, and after perusing the materials brought on record, this Court finds that petitioner was selected as a Constable (General Duty) in C.R.P.F. Rule 14 of the C.R.P.F. Rules of 1955 requires a verification roll to be filled by the candidate, which is retained in the service record of the employee concerned. Clauses 12(a) of the roll specifically requires a disclosure to be made by the employee as to whether he is involved/implicated in a criminal case. Clause 12(a), which is part of the standard format required under statutory rule to be filled by the employee, reads as under:-
"12(a) Have you ever been arrested, prosecuted, kept under detention or bound down/find convicted, by a court of law for any offence or debarred/disqualified by any public service commission from appearing at its examination/selections, or debarred from taking any examination/rusticated by an University or any other education authority/institution."
8. Learned counsel for the petitioner does not dispute that in fact such a declaration was made by the petitioner, in which the factum of any criminal proceedings being pending against the petitioner was not disclosed. Acting upon the declaration made by the petitioner to the employer, an offer of appointment was issued in favour of the petitioner.
9. It transpires from the record that the respondents, having subsequently come to know about the false disclosure made in verification roll by the petitioner, exercised their power under Rule 5(1) of The C.C.S. (Temporary Service) Rules, 1965, readwith Rule 16 of the C.R.P.F. Rules, 1955, to pass an order of discharge simpliciter against the petitioner, after giving him a month's notice. The discharge of petitioner from services is a discharge simpliciter, and no stigma is cast. There is no reference of any specific reason or imposition of penalty in the order of termination. It is further undisputed that petitioner was a probationer, and the three year period of probation was not over yet. It is during the period of probation that the order of discharge from service has been passed against the petitioner by serving him a month's notice. Record further shows that the petitioner while challenging the order of discharge simplicter has stated that his implication in the criminal case was unfounded, and he has already been acquitted therein. This plea of the petitioner has been noticed in the revisional order dated 27th March, 1996. The revisional authority, having noticed the facts brought on record by the petitioner in this regard, observed that there was no charge against the petitioner, which had led to passing of order of termination against him. It has, however, been observed that petitioner was involved in a criminal case at the time of enlistment with C.R.P.F., which fact had been suppressed, and having noticed such suppression, the revisional authority went on to observe that in such facts, the termination of services is in accordance with law.
10. The petitioner admittedly was on probation, and the respondents were well within their rights to terminate the temporary services of petitioner, in accordance with law. The fact that petitioner had submitted a declaration incorrectly mentioning that no criminal case is pending against him, is not in dispute. Once that be so, the respondents were well within their right to have formed an opinion regarding petitioner's continuance as an employee, who was yet to be confirmed. The order, which has been passed in the present case, does not inflict any penalty nor any stigma has been attached. In the opinion of the Court, the action of respondents in forming an opinion with regard to petitioner's continuance in service, having noticed his act of suppression, cannot be said to be arbitrary in the facts of the present case.
11. Turning to the decisions, which have been relied upon by learned counsel for the parties, it is to be noticed that the judgment of the Hon'ble Supreme Court in the case of Ram Kumar Vs. State of U.P. and others (supra), on which heavy reliance has been placed by learned counsel for the petitioner, was delivered in an entirely different factual scenario. In Ram Kumar (supra), the employee had been acquitted much prior to his consideration for appointment. Para 3 of the judgment in Ram Kumar (supra) is reproduced:-
"3. The facts very briefly are that pursuant to an advertisement issued by the State Government of U.P. on 19.11.2006, the appellant applied for the post of constable and he submitted an affidavit dated 12.06.2006 to the recruiting authority in the proforma of verification roll. In the affidavit dated 12.06.2006, he made various statements required for the purpose of recruitment and in para 4 of the affidavit he stated that no criminal case was registered against him. He was selected and appointed as a male constable and deputed for training. Thereafter, the Jaswant Nagar Police Station, District Etawah, submitted a report dated 15.01.2007 stating that Criminal Case No.275/2001 under Sections 324/323/504 IPC was registered against the appellant and thereafter the criminal case was disposed of by the Additional Chief Judicial Magistrate, Etawah, on 18.07.2002 and the appellant was acquitted by the Court. Along with this report, a copy of the order dated 18.07.2002 of the Additional Chief Judicial Magistrate was also enclosed. The report dated 15.01.2007 of the Jaswant Nagar Police Station, District Etawah, was sent to the Senior Superintendent of Police, Ghaziabad. By order dated 08.08.2007, the Senior Superintendent of Police, Ghaziabad, cancelled the order of selection of the appellant on the ground that he had submitted an affidavit stating wrong facts and concealing correct facts and his selection was irregular and illegal."
It was in these facts that the Apex Court observed as under in Para 9 of the judgment:-
"9. The order dated 18.07.2002 of the Additional Chief Judicial Magistrate had been sent along with the report dated 15.01.2007 of the Jaswant Nagar Police Station to the Senior Superintendent of Police, Ghaziabad, but it appears from the order dated 08.08.2007 of the Senior Superintendent of Police, Ghaziabad, that he has not gone into the question as to whether the appellant was suitable for appointment to service or to the post of constable in which he was appointed and he has only held that the selection of the appellant was illegal and irregular because he did not furnish in his affidavit in the proforma of verification roll that a criminal case has been registered against him. As has been stated in the instructions in the Government Order dated 28.04.1958, it was the duty of the Senior Superintendent of Police, Ghaziabad, as the appointing authority, to satisfy himself on the point as to whether the appellant was suitable for appointment to the post of a constable, with reference to the nature of suppression and nature of the criminal case. Instead of considering whether the appellant was suitable for appointment to the post of male constable, the appointing authority has mechanically held that his selection was irregular and illegal because the appellant had furnished an affidavit stating the facts incorrectly at the time of recruitment."
12. The judgment of Apex Court in Ram Kumar (supra) came to be noticed in a subsequent order of the Supreme Court in Jainendra Singh Vs. State of Uttar Pradesh (supra), and the question was referred to a Larger Bench for resolving the conflict noticed in various decisions. Decisions in Commissioner of Police, Delhi Vs. Dhaval Singh (supra), Kamal Nayan Mishra Vs. State of Madhya Pradesh and others (supra) and Commissioner of Police and others Vs. Sandeep Kumar (supra) were noticed. Para 13 of the referring order, which refers to Para 14 of the judgment in Kendriya Vidyalaya Sangathan and Others Vs. Ram Ratan Yadav [(2003) 3 SCC 437], is reproduced:-
"13. In the decision in, Kamal Nayan Mishra Vs. State of Madhra Pradesh & Ors.(supra), the ratio decidendi in Kendriya Vidyalaya Sangathan Vs. Ram Ratan Yadav(supra) has been set out in para 14:
"14. Therefore, the ratio decidendi of Ram Ratan Yadav is, where an employee (probationer) is required to give his personal data in an attestation form in connection with his appointment (either at the time of or thereafter), if it is found that the employee had suppressed or given false information in regard to matters which had a bearing on his fitness or suitability to the post, he could be terminated from service during the period of probation without holding any inquiry. The decision dealt with a probationer and not a holder of a civil post, and nowhere laid down a proposition that a confirmed employee holding a civil post under the State, could be terminated from service for furnishing false information in an attestation form, without giving an opportunity to meet the charges against him."
Subsequently, Civil Appeal No.5671 of 2012 (Jainendra Singh Vs. State of Uttar Pradesh Tr. Prinl. Sec. Home), in which the aforesaid referring order was passed, was withdrawn, vide order dated 13th April, 2015, which is reproduced:-
"Learned counsel for the applicant-appellant prays for withdrawal of this appeal.
This civil appeal is accordingly dismissed as withdrawn. I.A. No. 4 of 2015 is accordingly allowed and disposed off."
13. Law on the question of suppression came to be discussed in a subsequent decision in Devendra Kumar Vs. State of Uttaranchal (supra). Apex Court, having noticed the series of judgments delivered on the issue, went on to hold that where the applicant gets office by misrepresenting the facts, or by playing fraud upon the competent authority, such an appointment is not liable to be protected. Para 7 of the judgment is reproduced:-
"7. 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."
14. The Division Bench judgment of the Gujarat High Court, which has been relied by learned counsel for the respondents, is closer on facts to the present case, as it was also in respect of a similarly placed employee of C.R.P.F., who had been discharged during probation on the ground that he had suppressed facts with regard to pendency of criminal case against him. Paragraph 6 of the Division Bench judgment of Gujarat High Court is reproduced:-
"6. We may record that this application form contains all columns in English as well as in Hindi. Applicant had filled up the form in Hindi language. It is not his case that this form was not filled up by him or that he did not understand any of the questions which he had answered. At no stage, either during his service or after his termination, he had ever put up in defence that the declarations made in the said form were correct and the belief of the department that the said criminal cases were not pending when he filled up such form was inaccurate. In fact, as is apparent, he did not controvert that the details supplied by him to the questions 12 {a} & {b} were inaccurate and false to his knowledge.
6.1 Thus, the fact that at the time when the petitioner filled-up the application form for recruitment to the post of a constable in CRPF, he was facing two criminal cases is not in dispute. The fact that he was asked specifically whether he was ever prosecuted and if any criminal case was pending to give detail thereof, his answer was in the negative. It was under these circumstances that the employer exercised powers under Rule 5 (1) of the CCS (Temporary Service) Rules. Rule 5 (1) of the said rules read as under :-
"5. Termination of temporary service -
(1)(a) The service of a temporary Government Servant shall be liable to termination at any time by a notice in writing given either by the Government Servant to the appointing authority or by the appointing authority to the Government servant;
(b) the period of such notice shall be one month :
Provided that the service of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his service, or, as the case may be, for the period by which such notice falls short of one month."
6.2 This rule authorizes the Government to terminate service of a temporary Government servant at any time by one month notice in writing. Proviso to sub-rule (1) authorizes the employer to waive such notice and terminate the service forthwith by payment of a sum equivalent to the amount of the notice period or to an extent it falls short of one month of the pay and allowances.
6.3 It is undisputed that at the time such order was passed, the petitioner was not yet confirmed in Government service. It may be that he had completed his probation period. His confirmation would not be automatic upon mere completion of the period of probation. The employer had yet to judge his suitability and confirm him in service by allowing successful completion of the probation. It was at that time while verifying his character and antecedents, that it was noticed from the report received from the Commissioner of Police, Ahmedabad that the petitioner was facing two criminal cases. Thus, the respondents issued the impugned order when the petitioner was still a temporary Government servant. The authorities had the power to do so is not disputable in view of Rule 5 (1) of the CCS (Temporary Service) Rules. In fact, the sole ground pressed in service by the counsel for the petitioner in challenge to his termination was that such power could not have been exercised without giving a notice to the petitioner and by giving him a reasonable opportunity of being heard on the proposed order of termination.
6.4 By now, it is well-settled that the principles of natural justice cannot be put in straight-jacket and must vary with facts and circumstances of each case. The order of termination was one of simpliciter termination of service and not an order of penalty. It is not even the case of the petitioner that his services were terminated by way of penalty or that the termination was a stigmatic order. The plain language of the order itself would reveal that the services of the petitioner were terminated in exercise of power under Rule 5 (1) of the CCS (Temporary Service) Rules without casting any stigma on the petitioner. If the petitioner was being denied the benefit of confirmation on the ground of unsuitability of his service, the question of the allegations being foundation or motive for the action could arise. Further, had the petitioner been already confirmed in Government service, his right to hold the lien, unless the post is abolished or his service is brought to an end through legal process, would certainly arise.
6.5 In absence of confirmation, as a temporary servant, the petitioner had limited right to continue in service. Particularly when it was found that his very entry in Government service was through doubtful means, his termination by the authorities after considering facts and circumstances would call for no interference. It cannot be disputed that had the petitioner made full disclosure about pending criminal cases, his candidature would have been rejected. He was applying for a member of armed force who would, upon recruitment, be posted as a constable. As a member of CRPF, he would be entrusted with responsible duties and would be inducted in armed forces. The employer thus had every right to enquire about his full antecedents and be informed about any criminal case pending against such a candidate. Quite apart from his action of not making true and full disclosure, holding back most material information from the prospective employer of his involvement in such criminal case would have debarred him from securing the employment."
15. The factum of petitioner having been subsequently acquitted in the criminal case is not of much relevance in the facts of the present case, inasmuch as the limited scrutiny, which was available on part of the employer, was to examine the continuance of petitioner for employment in a public office. The fact that he had submitted a false declaration about no criminal case pending against him, was itself a material circumstance. As already observed above, no stigma was attached. Protection of Article 311 of the Constitution of India or the ratio laid down by the Hon'ble Supreme Court in the case of Ram Kumar (supra) and other judgments relied upon, taking similar view, have thus no applicability to the facts of the present case. There is no illegality in the orders impugned passed by the authorities, which may require any interference.
16. The writ petition, consequently, fails, and is dismissed.
Order Date :- 17.11.2015 Anil (Ashwani Kumar Mishra, J.)