Rajasthan High Court - Jaipur
Ex Const Dvr Mukesh Kumar Raigar Son Of ... vs Union Of India on 17 February, 2021
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 17475/2018
Ex Const Dvr Mukesh Kumar Raigar Son Of Ram Swaroop Raigar,
Aged About 33 Years, R/o Village And Post Office Tatera, Tehsil
Neemkathana, District- Sikar (Raj.)
----Petitioner
Versus
1. Union Of India, Through Secretary, Ministry Of Home
Affairs, New Delhi-1
2. Director General, Cisf, Cgo Complex, Lodhi Road, New
Delhi-03
3. Inspector General, Cisf 13, Cgo Complex, Lodhi Road,
New Delhi-03
4. Deputy Inspector General (Ap), West Zone, Airport Hq
Kendriya Sadan-C-301, Sector-10, C.b.d. Belapur, New
Delhi-614
5. Sr. Commandant, Cisf (Unit) Airport, Port Mumbai-99
----Respondents
For Petitioner(s) : Mr. O.P. Misra, Adv.
For Respondent(s) : Mr. R.D. Rastogi, Additional Solicitor
General.
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Judgment / Order Reserved on 09/02/2021 Pronounced On 17/02/2021
1. By way of instant writ petition, petitioner has prayed to quash and set aside order dated 14/05/2018 passed by the respondents whereby the representation submitted by the petitioner pursuant to directions of this Court in SB Civil Writ Petition No.8190/2012 has been rejected.
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2. Brief facts which need to be noticed are that this is a second round of litigation. Earlier, the petitioner had approached this Court by filing SB Civil Writ Petition No.8190/2012 wherein he challenged the order whereby penalty of removal from service was imposed against him.
3. It is to be noticed that this Court, after examining the facts and circumstances of the case and after considering the reply filed by the respondents, observed that case of the petitioner was required to be considered in the context of the parameters laid down by the Apex Court in Avtar Singh Vs. Union of India & Ors.: 2016(8) SCC 471 and passed following order:-
"This petition deserves to be allowed in view of the law laid down by the Apex Court. The impugned orders are quashed and set aside. The petitioner is directed to file a detailed representation before the Appointing Authority for re-consideration of his case in the context of judgment of Apex Court in the case of Avtar Singh (supra) and of this Court in the case of Kamal Singh Meena (supra). The Appointing Authority is directed to decide the representation filed by the petitioner by reasoned and speaking order with reference to the judgments as indicate above, within a period of eight weeks from the receipt of the representation.
The writ petition stands allowed accordingly."
4. The petitioner thereafter submitted representation wherein he prayed as under:-
"(i) The above representation may kindly be considered and decided to restoration of his seniority w.e.f. of 3.11.2007 to 16.02.2018. The payment of all pay and allowance w.e.f. 9.03.2010 to the date of reinstatement in service of CISF as per allowed writ petition ordered dated 16.02.2018 may kindly be allowed in the interest of justice. Being the petitioner was awarded removal from service under rule 34(IV) of CISF Rules 2001. Which is also unfair, unjust and illegal and not visualized word removal under sub Rule 34(IV) of CISF Rules 2001. In this connection no any amendment has been made by any authority (Downloaded on 19/02/2021 at 09:36:25 PM) (3 of 16) [CW-17475/2018] till this decided of writ petition by this Hon'ble Court.
The period of dismissal w.e.f. 9.3.2010 to the date reinstatement may kindly be regularized as duty in the interest of justice.
(ii) The reinstatement order may kindly be released on priority basis with in prescribed period eight weeks as per direction of Hon'ble Court.
(iii) The period to the date of dismissal w.e.f. 9.3.2010 to date of re-instatement will be treated as duty. He is entitled to full pay and allowances for period of which he would have been entitled had he not been dismissal under the provision of FR-54-A. The above period may kindly be allowed as per law."
5. The representation dated 06/03/2018 was examined by the respondents and was rejected vide order dated 14/05/2018:-
"1. WHEREAS, CISF NO. 074501856 Ex- Constable Mukesh Kumar Raigar (petitioner) of CISF Unit ASG, Mumbai has filed WP No. 8190/2012 in the High Court of Rajasthan at Jaipur against the penalty of Removal From Service awarded by Sr. Commandant/ ASG Mumbai vide Order No. V-15014/CSIA(M)/ Disc- 36/MKR/10-1303 dated 09.03.2010 of suppression of facts of criminal case No. 154/03 which was registered against him in Ajitgarh Police station U/s 341, 323, 324 IPC and that he was produced before the court through Challan CS no. 99/03. The above fact emerged from verification of C&A by DIG BCCL Dhanbad from the District Authority.
2. The WP was heard by the Hon'ble Court on 16.02.2018 and disposed of with the following direction :-
".....This petition deserves to be allowed in view of the law laid down by the Apex Court. The impugned orders are quashed and set aside. The petitioner is directed to file a detailed representation before the Appointing Authority for reconsideration of his case in the context of judgment of the Apex Court in the case of Avtar Singh (supra) and of this Court in the case of Kamal Singh Meena (supra). The Appointing Authority is directed to decide the representation filed by the petitioner by reasoned and speaking order with reference to the judgments as indicate above, within a period of eight weeks from the receipt of the representation. The writ petition stands allowed accordingly. "(Downloaded on 19/02/2021 at 09:36:25 PM)
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3. AND WHEREAS, petitioner's case has been considered in the light of the guidelines propounded by the Apex Court in the case of Avtar Singh Vs Union of India and Ors as well as Kamal Singh Meena (Supra) of Rajasthan High Court and the following guidelines have been found to be relevant in the case :-
""30. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize our conclusion thus:
(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. (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 .
4. Now THEREFORE, the representation dated 06.03.2018 of petitioner has been examined in teh light of judgement Order dated 21.07.2016 of Supreme Court of India in Avtar Singh case and Judgement Order dated 29.03.2016 of Rajasthan High Court in Kamal Singh Meena case. Upon examination of the case holistically, it is found that Section 324 indicated in the criminal case is a cognizable offence and is not covered among the list of minor offences (indicated in Annexure -'B') of MHA policy dated 01.02.2012 From the facts it is also observed that he was charge sheeted U/S-324 for voluntarily causing hurt by sword which is a dangerous weapon.
Subsequently he was acquitted only after compromise with the party which manifest his involvement in a serious offence.
5. Further, it is revealed that while the petitioner was appointed in CISF, a Criminal Case was pending against him at the time of his enrolment in the Force but he did not reveal the same in the Attestation Form rendering him unsuitable for Govt. service as per warning indicated pointed on the top of the Attestation Form. As per charge sheet/ FR he was released on bail by the police, hence he was very well aware about registering criminal case against him and is tantamount to deliberate suppression of facts which is an aggravating circumstance.
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6. It is also observed that he was appointed in CISF on 03.11.2007 and acquitted from the charges later on 21.11.2007 base on compromise between the party. It can thus be inferred that he was very much aware about the criminal case registered against him at the time of appointment. But he had suppressed this fact intentionally in the Attestation form which he submitted on 28.10.2007 for appointment to the post of Constable/GD. The petitioner has not been acquitted honourably in the criminal case and the Court has acquitted him merely on the basis of compromise with the other party which does not amount to a clean acquittal. Hence he is not found suitable for appointment in CISF.
7. CISF is an Armed Force of the Union of India and it is deployed in sensitive sectors such as Airports, Ports, Department of Atomic Energy, Department of Space, Metro, Power and Steel, for Internal Security duty, Election duty etc. The force personnel, therefore, are required to maintain discipline of the highest order and the involvement of the petitioner in such grave offence debars him from appointment.
8. Hence, in compliance of the Hon'ble High Court of Rajasthan at Jaipur Order dated 16.02.2018, the case of CISF No. 074501856 Ex- Constable Mukesh Kumar Raiger has been considered afresh and his representation dated 6.3.2018 has been examined in the light of Judgement Order dated 21.07.2016 in Avtar Singh case and Judgement Order dated 29.032016 of Rajasthan High Court in Kamal Singh Meena and he is found not suitable for appointment in CISF for the post of Costable/GD in view of the reasons explained in the preceding paragraphs of this order."
6. Learned counsel for the petitioner submitted that representation of the petitioner has been wrongfully rejected. It was submitted that earlier the petitioner had been charge sheeted for the same allegations and he was punished with the punishment of reduction of pay by one stage for a period of one year. The Deputy Inspector General (AP), West Zone, Airport HQ, Navi Mumbai, however, vide order dated 06/10/2009 directed for (Downloaded on 19/02/2021 at 09:36:25 PM) (6 of 16) [CW-17475/2018] conducting fresh departmental enquiry but the Senior Commandant, CISF (Unit) Airport, Part Mumbai proceeded to pass order of removal from service on 09/03/2010 which was quashed by this Court in the earlier writ petition (supra). However, the petitioner was not reinstated and by the order impugned herein dated 14/05/2018, the petitioner's representation was rejected and it was stated that the petitioner was not found suitable for appointment in CISF for the post of Constable. Learned counsel further submitted that the question regarding suitability was not available before the concerned authorities. The direction of this Court in earlier writ petition (supra) to decide representation was only with the purpose that the respondents may pass suitable orders on the departmental enquiry and as the punishment, which was impugned, stood already set aside in the earlier writ petition (supra), the respondents could not have restored the order of removal nor the respondents could have said that the petitioner is not suitable for the post. Learned counsel further submitted that the criminal case against the petitioner stood quashed on the basis of compromise and there is no such fact regarding acquittal in a case where the compromise has been arrived at between the parties and the proceedings are quashed. It was not a case where the offence was compounded in terms of Section 360 Cr.P.C. and the offences under Sections 323, 324 and 341 IPC were petty offences for which the proceedings stood already quashed. It was pointed out that the petitioner was of the age of 17 years alone in the year 2002 and the allegation of the petitioner having used sword was nowhere proved in any criminal proceedings. The petitioner had been appointed after due selection on 03/11/2007 and he was already performing his duties. He was served with the (Downloaded on 19/02/2021 at 09:36:25 PM) (7 of 16) [CW-17475/2018] charge-sheet on 18/04/2009 while he was on duty. Non- mentioning of pendency of criminal case in the attested form dated 28/10/2007 was in ignorance as he was informed that a compromise has already been arrived at between the parties and the proceedings were quashed on the basis of compromise on 21/11/2007. Learned counsel further submitted that once the petitioner had been punished earlier with the punishment of reduction of pay by one stage, the disciplinary proceedings could not have been again started against him for the same allegation and he could not have been removed. The Court had already quashed such removal order and no appeal was preferred against the said judgment dated 16/02/2017 passed in earlier writ petition (supra) which attained finality. Thus, the respondents had no occasion and no reason for not reinstating the petitioner and declaring him unsuitable for employment. Learned counsel further submitted that case of the petitioner stood covered by the observations made in Avtar Singh Vs. Union of India & Ors. (supra).
7. Per-contra, learned Additional Solicitor General appearing for the respondents supported the order impugned and submitted that while the High Court in earlier writ petition (supra) passed an order setting aside the punishment, once it directed the respondents to decide the representation, it would mean that the respondents were required to again examine whether the petitioner was entitled to be continued in service. He further submitted that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and the Court should not perpetuate the fraud for entertaining the writ petition for their benefits. Learned (Downloaded on 19/02/2021 at 09:36:25 PM) (8 of 16) [CW-17475/2018] Additional Solicitor General has placed reliance on several judgments, which shall be referred hereinafter, to submit that the petitioner was not entitled to be reinstated as he has suppressed the information which itself amounts to moral turpitude.
8. Heard learned counsels for the parties.
9. This Court does not agree with the submissions of learned Additional Solicitor General that the authority was empowered to even examine the question relating to reinstatement of the petitioner. Once the High Court has quashed the order of removal, the petitioner was entitled for reinstatement and the only scope available with the authorities was to decide the representation with regard to the aspects to be taken into consideration in relation to the judgment passed by the Apex Court in Avtar Singh Vs. Union of India & Ors.(supra) and the judgment passed by this Court in Kamal Singh Meena Vs. Union of India & Ors.: 2016(3) WLC (Raj.).
10. In Avtar Singh Vs. Union of India & Ors.(supra), the three Judges Bench of the Supreme Court was examining a reference made to it on account of an apparent cleavage of opinion in various decisions on the question of suppression of information and submitting false information in the verification form as to the question of having been criminally prosecuted, arrested or as to pendency of a criminal case. After considering the law with reference to the past conduct as well as the law laid down earlier by three Judges Bench in T.S. Vasudavan Nair Vs. Vikram Sarabhai Space Centre: 1985 (Supp.) SCC 795 and various other judgments, the Supreme Court reached to the conclusion as under:-
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(9 of 16) [CW-17475/2018] "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 concerned authorities 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.
38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize 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 recourse 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 (Downloaded on 19/02/2021 at 09:36:25 PM) (10 of 16) [CW-17475/2018] 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. 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 (Downloaded on 19/02/2021 at 09:36:25 PM) (11 of 16) [CW-17475/2018] 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.
39. We answer the reference accordingly. Let the matters be placed before an appropriate Bench for consideration on merits."
11. In Union Territory, Chandigarh Administration & Ors.
Vs. Pradeep Kumar & Anr.: (2018) 1 SCC 797, the Apex Court held as under:-
"13. It is thus well settled that acquittal in a criminal case does not automatically entitle him for appointment to the post. Still it is open to the employer to consider the antecedents and examine whether he is suitable for appointment to the post. From the observations of this Court in Mehar Singh and Parvez Khan cases, it is clear that a candidate to be recruited to the police service must be of impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged, it cannot be presumed that he was honourably acquitted/completely exonerated. The decision of the Screening Committee must be taken as final unless it is shown to be mala fide. The Screening Committee also must be alive to the importance of the trust repose in it and must examine the candidate with utmost character."
12. It is to be noted that in the said case, the concerned candidate had disclosed about the criminal case and the Screening Committee did not find him suitable as the acquittal was based on the star witnesses turning hostile and the same was not treated as clean acquittal.
13. In State of Madhya Pradesh & Ors. Vs. Bunty (Civil Appeal No.3046/2019), decided by the Apex Court on 14/03/2019, as the acquittal was based on benefit of doubt, the (Downloaded on 19/02/2021 at 09:36:25 PM) (12 of 16) [CW-17475/2018] Screening Committee's action for not finding the person suitable was affirmed keeping in view the law laid down in Avtar Singh Vs. Union of India & Ors. (supra).
14. In State of Madhya Pradesh Vs. Abhijit Singh Panwar:
2018 SCC Online SC 2555, candidature of the candidate was rejected on the basis of his antecedents, however, the Supreme Court, after considering the law as laid down in Commissioner of Police, New Delhi Vs. Mehar Singh:(2013)7 SCC 685; State of Madhya Pradesh Vs. Parvez Khan: (2015) 2 SCC 591, Union Territory, Chandigarh Administration Vs. Pradeep Kumar: (2018) 1 SCC 797 and Avtar Singh Vs. Union of India & Ors. (supra), held that even if disclosure is made by a candidate, the employer would be well within his rights to consider the antecedents and the suitability of the candidate. While so considering, the employer can certainly take into account the job profile for which the selection is undertaken.
15. Learned ASG has also placed on record the instructions of Ministry of Home Affairs. However, from perusal of the said instructions of the Ministry of Home Affairs, Government of India applicable to CISF, it is mentioned that the cases which are compoundable and non-cognizable would fall within the category of minor offences.
16. Learned ASG has also taken this Court to one judgment passed by the Division Bench of this Court in Government of India & Ors. Vs. No.89141283 Const. Shri Ram Meel (DB Special Appeal Writ No.543/2018), decided on 26/07/2018 wherein it was held that even if a candidate has been acquitted with the benefit of doubt, the administration has right to deny appointment when it is for the disciplined forces. (Downloaded on 19/02/2021 at 09:36:25 PM)
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17. While the petitioner's case is limited only to the extent of impugned action of rejecting the representation on wrong premise and that the punishment of removal on account of suppression having already set aside, the case of the respondents is essentially whether the petitioner is fit to be appointed as a Constable in CISF.
18. For the said purpose, the respondents, in their rejection order, have considered the FIR registered against the petitioner under Section 323, 324, 341 IPC. Under Section 323 IPC the punishment for voluntarily causing hurt is imprisonment which may extend to one year or with fine or both while under Section 324 IPC, the punishment for voluntarily causing hurt by dangerous weapons or means is imprisonment which may extend to three years or with fine or with both while under Section 341 the punishment for wrongful restraint is imprisonment which may extend to one month, or with fine which may extend to five hundred rupees or with both.
19. All the three offences, as above, are minor in nature as the punishment is imprisonment or fine.
20. It is also to be noticed that the said offences do not come within the meaning of moral turpitude. In the present case, there is no conviction of the petitioner. It is a case where on the basis of compromise, the proceedings stood quashed meaning thereby the entire criminal proceedings are put to naught. As such, the petitioner would not be said to have been punished or convicted or acquitted with the benefit of doubt. If an FIR has been lodged against a person and later on, the complainant choose not to further press the complaint, a person cannot be made to suffer for his entire lifetime.
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21. It is not a case where any witness turned hostile. The judgments, which have been cited at bar, would not have application to the facts of the present case, moreover, the question, which arises for consideration before this Court, is whether a person could be punished twice in relation to the same allegations. Admittedly, the petitioner was punished earlier vide order dated 11/07/2009 with the punishment of reduction of pay by one stage from Rs.6320/- to Rs.6070/- in the Band pay of Rs.5200-20,200/- with Grade Pay of Rs.2000/- for a period of one year. The order of punishment dated 11/07/2009 was not challenged by the petitioner. The Deputy Inspector General (AP) West Zone in revision proceedings initiated suo-moto, set aside the penalty and directed for conducting fresh departmental enquiry wherein the order of removal was passed on 09/03/2010. The appeal was dismissed on 23/06/2010 and the revision was also dismissed on 21/12/2010. All these orders were challenged in earlier writ petition No.8190/2012 and have been quashed & set aside and the writ petition was allowed with direction to decide representation.
22. Thus, the moot question which arises is whether in the aforesaid circumstances, the petitioner would be treated as removed from service while deciding the representation and whether the respondents were required to again examine suitability of continuing the petitioner in service.
23. If the facts are examined in the light of the judgment passed in Avtar Singh Vs. Union of India & Ors. (supra), the respondents were only required to see whether action is required to be taken against the petitioner on account of the alleged concealment. Admittedly, concealment was in relation to a case, (Downloaded on 19/02/2021 at 09:36:25 PM) (15 of 16) [CW-17475/2018] as noticed above, of a minor nature. It is also an admitted position that the proceedings in the said case stand quashed on the basis of the compromise. Therefore, the interpretation taken by the respondents by treating it as an acquittal, which cannot come within the meaning of 'clean acquittal', is misconceived. The impression is wrong. Acquittal of any nature makes a person, against whom offences are alleged, free. It is the way the judgment is written. A person, who is an accused, has no say in the manner in which a judgment is written by the Court. In criminal law, the principle is settled that a person who is acquitted on account of paucity of evidence, has the same effect as an acquittal after examining the statements of the witnesses and the Court gives a verdict that the statements recorded before the Court do not prove the guilt. It is to be noticed that a person who faces criminal trial undergoes a severe mental agony. If he is acquitted in the case, his acquittal has to relate from the day he was charged of the offences. The entire trial is set at naught. To put it differently, a person, who is acquitted, cannot be put to a second trial. Such person cannot be made to face social deprivation by not considering him for employment or denying him a right to continue him in employment.
24. In the present case, the petitioner is found to have been already appointed. So far as his performance is concerned, the respondents did not find any shortcoming thereto. The circumstances mentioned in Avtar Singh Vs. Union of India & Ors. (supra), thus clearly show that the petitioner was to be continued in employment. Moreover, once the High Court has already quashed the punishment of removal and the appellate (Downloaded on 19/02/2021 at 09:36:25 PM) (16 of 16) [CW-17475/2018] orders, the respondents could not have disallowed the petitioner to continue in employment.
25. In view of the discussions made above, the present writ petition succeeds and is accordingly allowed. The order impugned dated 14/05/2018 is quashed & set aside and the respondents are directed to reinstate the petitioner in service with all consequential benefits. Cost made easy. All pending applications stand disposed of.
(SANJEEV PRAKASH SHARMA),J Raghu (Downloaded on 19/02/2021 at 09:36:25 PM) Powered by TCPDF (www.tcpdf.org)