Allahabad High Court
Dharam Pal Singh vs State Of U.P. And Ors. on 28 August, 2002
Equivalent citations: 2002(4)AWC3125, [2001(90)FLR124]
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. The petitioner was appointed as constable in P.A.C. and join the post on 1.11.1986. Before being appointed, the petitioner submitted an affidavit dated 5.8.1986 (Annexure-1 to the writ petition) to the effect that he was never involved in any criminal case, etc. This affidavit was sworn before the Notary.
3. Under Section 3 of the Pradeshik Armed Constabulary Act, 1948, members of P.A.C. are deemed as police officials. The powers privileges, liabilities, penalties, punishment and protection as police officer duly enrolled is subject to by virtue of Police Act, 1861 and the rules and regularizations framed therein are applicable.
4. In paragraph 541 of the police regulations, it is provided that a recruit will be on probation for a period of two years from the date he begins to officiate in a clear vacancy except in certain circumstances. At the end of the probationary period, the work and conduct of the recruit has to be approved by the D.I.G. of the police for service in the force and thereafter, the services are confirmed by the Superintendent of Police. In case the Superintendent of Police is of the opinion that the recruit is unlikely to make good officer, his services can be dispensed with after following the procedure provided under Regulations 541 (2) of the Police Act. Regulation 541 of the police regulations is as under :
"54 J. (1) A recruit will be on probation from the date he begins to officiate in a clear vapancy. The period of probation will be two years except in the following cases :
(a) those recruited directly in the Criminal Investigation Department or District Intelligence Staff will be on probation for these years, and
(b) those transferred to the Mounted Police will be governed by the directions in paragraph 84 of the police regulations.
If at the end of the period of probation, conduct and work have been satisfactory and the recruit has been approved by the Deputy Inspector General of Police for service in the force, the Superintendent of Police will confirm him in his appointment.
(2) in any case in which either during or at the end of the period of probation, the Superintendent of Police is of opinion that a recruit is unlikely to make a good police officer he may dispense with his service. Before, however, this is done the recruit must be supplied with specific complaints and grounds on which it is proposed to discharge him and then he should be called upon to show cause as to why he should not be discharged. The recruit must furnish his representation in writing and it will be duly considered by the Superintendent of Police before passing the orders of discharge.
(3) Every order passed by a Superintendent under sub-paragraph (2) above shall, subject to the control of the Deputy Inspector General be final."
5. On 4.1.1993, a memorandum was issued to the petitioner calling explanation from him and informing him that on a complaint received inter alia that a criminal case had been lodged against the petitioner on 23.6.1986 under Sections 147/194/323 and 336 of the I.P.C. In Case Crime No. 256 of 1986 at Police Out-Post Chakghat of Police Station Sohagi, district Rewa, Madhya Pradesh before his appointment. It was also stated in the memorandum that the petitioner was arrested on 23.6.1986 and a compromise was entered into between the parties on 18.9.1992 during the trial proceedings. This compromise was also accepted by the Court vide order dated 16.10.1992. It was also stated in the memorandum that a preliminary enquiry was made about the facts stated in the complaint and was found true.
6. On this basis, it was alleged that the affidavit submitted by the petitioner before his appointment was false and contained incorrect facts in paragraphs 4, 5 and 6 of the affidavit. The petitioner was directed to submit an explanation within 15 days of the receipt of the memorandum as to why his services may not be terminated w.e.f. 31.1.1993 according to the declaration given by him in paragraphs 11 and 13 of the affidavit.
7. For ready reference paragraphs 4, 5, 6, 11 and 13 of the affidavit are quoted below :
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8. On 4.1.1993, the petitioner showed his inability to submit a proper reply on the ground that the copy of the enquiry proceedings alleged to have been conducted have not been made available to him. It is contended by the counsel for the petitioner that the petitioner was not a temporary employee and the criminal case lodged against him under Sections 147/323/149. I.P.C. was compromised which had also been accepted by the Court. He further contends that the services of the petitioner were terminated vide order dated 22.3.1999 (Annexure-5 to the writ petition) is illegal and against the provisions of law. Aggrieved by the order of dismissal the petitioner filed an appeal in March, 1993, before D.I.G. (P.A.C.) Kanpur Range. Kanpur. The appeal of the petitioner was dismissed by order dated 29th March, 1993. This order was served on the petitioner through Sena Nayak on 14th June, 1993.
9. The submission of the petitioner is that his services have been terminated simply on the basis that he has made false or incorrect averments in his affidavit dated 5.8.1986 and had taken appointment by misrepresentation and fraud. It is further argued that in any case the petitioner had already been acquitted in criminal case vide judgment and order dated 24.10.1992.
10. The argument of counsel for the petitioner is that he was a confirmed employee after the probation of two years was over and his services cannot be dispensed with without following the procedure as contemplated under Article 311(2) of the Constitution of India read with Rule 14 of the U. P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. It has been vehemently argued by Sri B. P. Srivastava, learned counsel for the petitioner that the services of the petitioner have been terminated on a very flimsy ground and the petitioner has not been supplied copy of the enquiry proceedings on which the explanation of the petitioner was called for and as such, it is against the principle of natural justice.
11. The contention of the petitioner that he was a confirmed employee is misconceived and erroneous. From a bare perusal of the Police Regulation 541 of the regulations would show that a recruit cannot be a confirmed employee after the probation period till (i) his work and conduct is found satisfactory and has been approved by the Deputy Inspector General of Police for service in the force and (ii) the Superintendent of Police confirms his appointment. In the present case, the petitioner was not confirmed as per Regulations 541 (1) (b) of the police regulations. Apart from this, he knew that he was involved in a criminal case. This was in his knowledge prior to his appointment. He had, therefore, knowingly submitted an affidavit dated 5th August. 1986, giving incorrect facts for securing appointment in Government service containing false and incorrect facts.
12. According to the declaration given by him in paras 4, 5 and 6 he concealed the facts regarding criminal case having been registered against him as well as about his arrest in pursuance thereof. In view of declaration made by him in paras 11 and 13 to the effect that if anything in the affidavit is found untrue or any concealment of facts on his part is found in future, he may be dismissed from service of U. P. Police without anything further and that he will accept the punishment awarded to him in accordance with law.
13. It is well-settled law that fraud vitiates appointments. In such cases, the delinquent cannot complain violation of principles of natural justice as appointment secured by misrepresentation and giving false and incorrect facts on affidavit is void abinitio. Such a person cannot claim protection under Article 311 of the Constitution. The Impugned order of the dismissal as well as the appellate order have been passed in terms of Clauses 11 and 13 of the declaration given by him in the affidavit.
14. The petitioner is also not in service since 29.3.1993 and there is no interim order in this case by the Court.
15. No other point has been pressed before me.
16. In view of the aforesaid fact the writ fails and is dismissed.
17. No order as to costs.