Punjab-Haryana High Court
Vijan Singh vs Union Of India & Anr on 12 July, 2010
CWP No.7538 of 1997 1
IN THE HIGH OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.7538 of 1997
Date of Decision: 12.07.2010
Vijan Singh ..Petitioner
Vs.
Union of India & Anr. ..Respondents
Coram: Hon'ble Mr. Justice Vinod K.Sharma
Present: Mr.HNS Gill, Advocate,
for the petitioner.
Mr.Gurpreet Singh, Senior Panel Counsel,
for the respondents.
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Vinod K.Sharma,J. (Oral)
The petitioner has invoked the writ jurisdiction of this court to challenge the order, Annexure P.3, of his discharge from Indo-Tibetan Border Police under Rule 22 of the Indo-Tibetan Border Police Force Rules, 1994 (for short the Rules).
Brief facts leading to the filing of the writ petition are, that the petitioner was recruited as constable in IV Battalion, Indo-Tibetan Border, Police in pursuance to advertisement dated 23.9.1996. The petitioner after medical examination was recruited as constable in the Pay Scale of Rs.925- 15-900-EB/20/1200 per month including other benefits given by the CWP No.7538 of 1997 2 Central Government. The appointment was on ad-hoc basis.
On 17.3.1997, the petitioner was issued a notice to show cause regarding concealment of his conviction in a case under sections 3/6 of the Rajasthan School Education in which the petitioner after conviction was released on probation vide order dated 15.2.1996.
The order impugned reads as under:-
"ORDER No.960040238 Constable/Rect Vijan Singh of Admn.Wing of this unit had furnished false/wrong information at the time of his appointment and in view of the adverse remarks received from district Police Supt. Bhartpur (Rajasthan) against the character and antecedent, he is not found fit for further retention in the Government service.
2. However a show cause notice for a period of one month was also served upon him on 7.3.1997 vide memorandum No.2115-16 to submit his representation on his defence, if any, but the representation submitted by him does not have any merit for consideration. Therefore, in exercise of the powers vested on me vide rule-17 read with rule-22 of the ITBPR Rules, 1994, service of the said No960040238 Ct/Rect.Vijan Singh, Admn. Wing 4th Bn,ITB Police is hereby terminated with effect from 6.4.1997 (AN) 6.4.1997.
3. No.960040238 Ct/Rect.Vijan Singh of Admn. Wing the Bn.ITB Police will be struck off from the strength of this unit w.e.f. 6.41997 (AN) His home address/particulars is given as CWP No.7538 of 1997 3 under:-
i) Name: Vijan Singh s/o Late Shri Rattan Singh
ii) Date of birth: 15.4.1974
iii) Education qualification: Sr. Secondary
iv) Nationality: Indian
v) Caste or Tribe: Hindu/General
vi) Identification Marks:- (1) black mole in left side of the
chest 03 Cn above lateral to left nipple.
(2) Black mole rt. Chest 06cms below & medial to Rt. nipple.
Vii) Home address: Village Aronda, PO: Hantra, Nearest Rly Station Nadbai Tehsil Nadbai District Bharatpur (Rajasthan)"
The learned counsel for the petitioner has challenged the impugned order by contending, that the order is unconstitutional being violative of principles of natural justice, as the respondents failed to consider the explanation given by the petitioner to show cause notice. The contention of the learned counsel for the petitioner was, that the petitioner though convicted under section 3/6 of Rajasthan Secondary Education, but was ultimately released on probation, therefore, his services could not be dismissed, for concealing the fact of his conviction, as release of petitioner on probation could not result in any departmental order by his employer.
In support of this contention learned counsel for the petitioner CWP No.7538 of 1997 4 placed reliance on the judgment of Hon'ble Supreme Court in the case of Aitha Chander Rao Vs. State of Andhra Pradesh 1981 (Supp) Supreme Court Cases 17, wherein Hon'ble Supreme Court while interpreting Sections 4 & 12 of the Probation of Offenders Act, 1958, on peculiar facts and circumstances said case held, that conviction of the petitioner under section 304-A of the Indian Penal Code, in which he was released on probation could not affect his service career in view of Section 12 of the Probation of Offenders Act.
The contention of the learned counsel for the petitioner was, that the petitioner being young man who was released on probation has been treated very harshly and the very object of releasing him on probation stands defeated in view of the order of discharge.
Mr.Gurpreet Singh, learned Sr. Panel counsel, appearing on behalf of the Union of India, on the other hand, supports the order passed by the authorities by placing reliance on Rule 22, which reads as under:-
"22. Termination of service on grounds of furnishing false/incorrect information at the time of appointment.--
The Central Government, or as the case may be, the authority as specified in rule 17, may terminate the service of a person subject to the Act on grounds of furnishing false/incorrect information at the time of appointment of that persona in the service. A show cause notice giving one month's time shall be issued to the individual before termination of his service."CWP No.7538 of 1997 5
The contention of the learned Senior Panel Counsel for the respondents, therefore, was that in terms of Rule 22 of the Rules, the petitioner was given show cause notice as he was found guilty of concealment of information at the time of his appointment, as he had not disclosed the fact of his conviction and being released on probation. He had denied having been convicted by any court of law. The contention of the learned counsel for the respondents, therefore, is that action being in terms of rule 22 of the Service Rules, does not call for interference, specially when the petitioner was discharged on 5.4.1997 and there exists no equity in favour of the petitioner at this stage for being reinstated in service, specially when the action of discharge is as per the rules. The order is not challenged on the ground that the rules were not followed.
Learned senior Panel Counsel for the Union of India in support of the order impugned placed reliance on the judgment of Hon'ble Supreme Court in the case of Union of India & Ors. Vs. Bakshi Ram AIR 1990 SC 987, to contend that the release of offender on probation does not obliterate stigma of conviction and employee dismissed from service in view of conviction under section 10 of Central Reserve Police Force Act is not entitled to reinstatement in service upon getting benefit of probation of good conduct.
The judgment relied upon by the learned senior Panel Counsel for the respondents is not applicable to the facts of the case but on consideration, I find force in the contentions raised by the learned counsel for the respondents.
The petitioner was not discharged from service on account of CWP No.7538 of 1997 6 his conviction in which he was released on probation so as to attract the judgment of Hon'ble Supreme Court in the case of Aitha Chander Rao Vs. State of Andhra Pradesh (supra), but he was discharged from service for giving wrong information at the time of his appointment, as he concealed the factum of his conviction and release on probation. Once there exists statutory rule, which entitles an employer to discharge the employee from service in case he is found guilty of concealment of fact at the time of getting appointment, no fault can be found with the order impugned, as it has been passed after complying with the provisions of Rule 22 of the Rules, as show cause notice was issued to the petitioner. Furthermore, it is not in dispute that the petitioner had concealed the factum of his conviction, though it was claimed to be under wrong impression.
For the reasons stated above, finding no merit in the writ petition, it stands dismissed, but with no order as to costs.
12.07.2010 (Vinod K.Sharma) rp Judge