Punjab-Haryana High Court
Ashok Kumar vs Union Of India And Others on 20 November, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Civil Writ Petition No.4145 of 2011
Date of decision: 20.11.2013
Ashok Kumar
..... Petitioner(s)
Versus
Union of India and others
..... Respondent(s)
CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr.J.S.Hooda, Advocate,
for the petitioner.
Mr.Anil Kumar Gahlawat, Advocate,
for the respondents
*****
1. To be referred to the Reporters or not? Yes
2. Whether the judgment should be reported in the Digest? Yes
RAJIV NARAIN RAINA, J.
The petitioner was recruited in Indo-Tibetan Border Police Force (ITBP) on 15.7.2007. He was put to basic training at the Primary Training Centre, BTC Bhanu from 6.8.2007 to 28.6.2008. After successfully completing the training, he was posted as Constable (General Duty) in 37th Battalion, ITBP, Panchkula. In the background check of character verification, it was discovered that FIR No.9 of 2004 was registered against the petitioner in Police Station, Pohri, District Shivpuri, Madhya Pradesh under Sections 147, 148, 149, 323, 294, 506 IPC. On receipt of information of the criminal case from the District Administration, a notice was issued to the petitioner to explain himself vide notice No.1199 dated 30.8.2008. He Kumar Paritosh 2013.11.29 10:25 I attest to the accuracy and integrity of this document CWP No.4145 of 2011 2 made answer on 17.9.2007. Not satisfied with the explanation furnished, a show cause notice was issued to the petitioner on 25.2.2009 as to why his services be not terminated for suppression of facts in the enrollment form to which he filed reply on 19.3.2009 which was also not found satisfactory.
2. The petitioner was dismissed from service in accordance with rules 22 and 17(4) of the Indo-Tibetan Border Police Force Rules, 1994 vide order dated 6.4.2009. Aggrieved, he appealed to the Deputy Inspector General, ITBP, Ladakh on 15.4.2009. His appeal was rejected on 7.8.2009 (P-5) for the reason of making false declaration in the application form on 4.6.2009 at the time of recruitment. The petitioner had answered in the negative the two questions at Serial No.12 of the form stating that he had never been arrested nor had been prosecuted, convicted etc.. Aggrieved by the dismissal, the petitioner has approached this Court through the present petition filed under Article 226 of the Constitution praying that the impugned orders dated 6.4.2009 of termination and the order dated 9.8.2009 rejecting his appeal be quashed on the ground that they are harsh, mechanical and have been passed without adopting a judicious approach. The petitioner has explained his case in the present petition in line with the defence taken in the reply to the explanation call, in the show cause notice and in appeal.
3. It is his case that his Uncle (chacha) had lodged the false FIR in 2004 due to misunderstanding between his uncle and his father regarding property. This FIR was lodged by the uncle as a counter blast to a case registered by the petitioner's father against his brother. There were two cross FIRs. When the occurrence allegedly happened, the petitioner was not at the place of occurrence as he says that he was preparing for his 10th class Kumar Paritosh 2013.11.29 10:25 I attest to the accuracy and integrity of this document CWP No.4145 of 2011 3 examination from Government Higher Secondary School, Bhatnawar, Shivpuri. The dispute was resolved between the brothers and settled in 2004 itself on the intervention of friends and relatives. Thereafter both families lived together in the village in harmony. The petitioner, a young boy then remained ignorant of the registration of the FIR and pendency of a criminal case in bonafide belief that the matter stood resolved within the families of both the brothers and they continued living peacefully thereafter. But the case remained pending. It was only on receiving show cause notice that the petitioner came to know of the case and informed his family members of the trouble he had got into for no fault of his. No sooner than the family members of both the sides received information they went to the Court, tendered their respective statements on the basis of which the Judicial Magistrate, 1st Class, Pohri accepted the compromise and acquitted the respective parties on the basis of the compromise vide order dated 26.2.2009. This order was passed in Case No.123 of 2008 and cross case No.525 of 2008. It would be worthwhile recalling that the petitioner had filled in the application form on 4.6.2009 after the judicial order was passed. The petitioner was an accused along with his father in case No.525 of 2008.
4. In response to the notice of motion being issued by this Court, ITBP have filed a reply in which the facts have been narrated and it has been submitted that the petitioner's appeal was considered sympathetically but was rejected in the light of the provisions of the ITBP Act and the rules framed thereunder as the petitioner had suppressed facts regarding the criminal case/FIR against him. At the time of signing C & A verification rolls, the petitioner had concealed this fact and furnished false and wrong information that no case was pending against him in any Court of law Kumar Paritosh 2013.11.29 10:25 I attest to the accuracy and integrity of this document CWP No.4145 of 2011 4 whereas prior to recruitment in ITBP, an FIR was pending against him. On receipt of background check by the District Magistrate, the discovery was made and thus was connected to the declaration/enrollment form which led to dismissal from service.
5. The petitioner has filed a replication in which he reiterates his stand as were made in the petition. It is re-affirmed that both the cases remained pending in the trial court since no application for compounding the alleged offences was moved by either party and it was understood that the dispute had been settled between the brothers and both the families started living harmoniously with each other.
6. Heard the learned counsel for the parties at length and perused the record.
7. Learned counsel for the petitioner submits that the criminal case at its worst arose from a family dispute between two brothers which led to registration of cross FIRs. The foundation of the allegations and counter allegations made by either side were such as often arise between siblings fighting over inheritance etc. It was the petitioner's emphatic case before the authorities in the ITBP in response to the notices issued that he was not present at the place of occurrence at the relevant time. He was a young boy then studying in the Government School at Shivpuri. The uncle had lodged an FIR with the intention to grab the entire property and to dupe the father of the petitioner. In response to the show cause notice, the petitioner had produced a certificate of the Sarpanch of the village testifying that the applicant was not present at the place of occurrence. The FIR which was lodged by his uncle in the heat of the moment was false with the intention to grab property which had aggravated both sides to lodge FIRs against each Kumar Paritosh 2013.11.29 10:25 I attest to the accuracy and integrity of this document CWP No.4145 of 2011 5 other. Learned counsel for the petitioner submits that the application under Section 320(2) of the Cr.P.C. was filed before the Judicial Magistrate First Class, Pohri for compounding the case on which both sides were acquitted in the respective cases by separate orders passed on the same day, i.e., on 26.2.2009. Therefore, there was no FIR pending on or after 26.2.2009. The petitioner had served for about 1½ years in ITBP and his conduct remains over board and nothing adverse against his performance of duties in the Force is alleged against him.
8. There can hardly be any doubt that the statements made in the enrollment form were incorrect and wrong. Falsity is a harsh word and knowledge of wrongdoing is even worse. However, the question is that the FIRs were registered in 2004 but the committal came in 2008 in both the cases. The cases bear the year 2008. It appears that the cases remained dormant from 2004 to 2008 till they were activated by applications filed under Section 320(2) Cr.P.C. for compounding them. The Court permitted compounding of the case and acquitted both sides on accepting the compromise. The offences were compoundable. If the version of the petitioner is to be believed as supported by the Sarpanch of the village that he was not present on the date and place of occurrence pursuing his studies in a school at Shivpuri, then it appears too harsh to terminate his services on account of the declaration. I find no reason to disbelieve this statement taken as a defence plea in the first instance in response to the explanation call and show cause notice and in pleadings before this Court in the writ petition especially when the veracity of the allegations and counter allegations were not tested at the trial by way of evidence. It appears to me especially so when seen in the background that the cross FIRs were between Kumar Paritosh 2013.11.29 10:25 I attest to the accuracy and integrity of this document CWP No.4145 of 2011 6 two real brothers over a family property dispute. If the petitioner's father and uncle had committed sins, then I do not think that the son should be visited by those actions in his service career brought to a halt. The petitioner was after all only a young boy at the time and trying to make his career through education. The respondents have also not gone into the role attributed to the petitioner in those FIRs. No effort was made by the respondents to look into the case from that angle. I take it that there was no moral turpitude involved in the allegations and counter allegations of any heinousness or depravity therein and within the two family connected by blood. The fact that the trial remained dormant from 2004 to 2008 is also sufficient indication that all was well between the two families and they had distanced themselves from the incidents only to wake up and save family honour only on gaining knowledge of the show cause notice issued to the petitioner seriously threatening the petitioner and damage it would do to a successful member of the family. Therefore, this Court has considered and examined the case on the larger perspective of proportionality and whether dismissal/termination should have automatically resulted with nothing more to it. It is possible that when the declaration was made, the case may not have been present in the sub conscious the offending matter in the haze of the distant past and inconsequential to them thereafter or affecting their lives wounds long healed.
9. In Commissioner of Police and others v. Sandeep Kumar; (2011) 4 SCC 644, the Supreme Court dealt with a case of false declaration in the enrollment form submitted for selection to paramilitary force. The Supreme Court expanded the view point and observed that the young boys often commit indiscretions and judicial approach should be to condone such Kumar Paritosh 2013.11.29 10:25 I attest to the accuracy and integrity of this document CWP No.4145 of 2011 7 indiscretions rather than branding them as criminals for the rest of their lives. The respondent before the Supreme Court had been appointed as a Head Constable (Ministerial) but did not disclose in the enrollment form of his involvement in a criminal case registered under Sections 325/34 IPC when he was aged about 20 years. The Court did not find the offence under Sections 325/34 IPC so serious in nature and therefore showed the path of taking a more lenient view and that Court should apply a more humanistic test in considering such a case even though offences involved may be somewhat heinous in nature. The appeal was against the judgment of the Delhi High Court quashing cancellation of candidature. The view of the Delhi High Court was upheld but from a broader perspective beyond the stand point of rules and declarations in enrollment forms.
10. This is not to say that a strict view should not be taken on false declarations in enrollment forms as the purity of the force cannot be compromised but the Courts may have to yield to the facts of each case in balancing out equities between the culprit and the employer. But the present case is not a case reprehensible in nature or one which would shock the conscience of a reasonable man. The dispute was between brothers with the child roped in. It has been amicably resolved. The matter not pursued further with cases lying dormant from 2004 to 2008 only to be activated for a formal compromise to save the petitioner from disaster, the past buried.
11. We also do not know whether the trial Court at Pohri took the cases with any seriousness or that charges were framed a charge sheet. Nothing of this sort is forthcoming from the record presented to this Court. In all probability it was not done, otherwise it would have been highlighted by the respondents in the written statement or at the stage of dismissal from Kumar Paritosh 2013.11.29 10:25 I attest to the accuracy and integrity of this document CWP No.4145 of 2011 8 service. Mere pendency of the FIRs in a family dispute with both parties protecting property interests among brothers is not apparently such a heinous matter to visit the petitioner with such serious after effects.
12. Learned counsel for the Union of India submits that nothing more is required under rule except termination/dismissal on discovery of false information of suppression of material facts. It is beyond cavil that the statement in the enrollment form was not in tune with the truth and therefore, this Court should take a stricter view and permit the natural consequences of rule 22 read with 17(4) of the ITBP Rules, 1994 to flow and not be obstructed by judicial fiat in exercise of powers and jurisdiction to issue writs of certiorari.
13. I have given my thoughtful consideration to the respective stands in all the seriousness they deserve. This Court at the end of the day is a Court of equity. Constitutional obligations may demand examination of facts case by case, role by role while dealing with criminal law interfacing with service jurisprudence. I have myself upheld several cases of false declaration and have not interfered but in the present case, my conscience does not allow on principles of proportionality to visit the petitioner with the severest and harshest consequences known to service law.
14. In Commissioner of Police, New Delhi & Anr v. Mehar Singh, AIR 2013 SC 2861, the Supreme Court thrashed out the law on the subject and in the main held that strict norms need to be applied while appointing persons in a disciplinary force because public interest is involved in it. This was a case of appointment of a Constable (Executive) (Male) in a paramilitary force. Mehar Singh was charged with offences under Sections 323, 341, 427 IPC. He compromised the matter with the Kumar Paritosh 2013.11.29 10:25 I attest to the accuracy and integrity of this document CWP No.4145 of 2011 9 complainant and was acquitted. But there was a trial. Witnesses turned hostile. The appellant even disclosed his involvement in the criminal case and his acquittal on the basis of compromise. He was provisionally selected subject to verification of character antecedents and it was in the process of considering appointment that a decision was taken by the Screening Committee constituted by the Commissioner of Police, Delhi that Mehar Singh had assaulted a bus conductor with an iron chain, belt and stones in a pre-planned manner and caused injuries to him which showed Mehar Singh to be a person violent in nature with scant respect for the law of the land. His case was not recommended for appointment to the post of Constable. Mehar Singh succeeded before the Tribunal and the High Court but both the judgments were reversed by the Supreme Court and it was held that the cancellation of candidature was well founded.
15. In the present case, I do not find any violence or conduct of a reprehensible kind or disrespect for the law as in Mehar Singh's case (supra). I also do not think that the petitioner can be put in the slot of a person having "criminal antecedents" or depravity of character. Mere inactivated criminal trial and the episode having been put on the back burner without any fire would not lead to the inevitable conclusion that the petitioner is not likely to make a good constable to whom public faith and trust cannot be reposed. The weeding out process in such cases is to keep persons involved in grave cases involving mortal turpitude out of the police force even if they are acquitted or discharged and if the employer feels that acquittal or discharge is on technical grounds and not honourable they are empowered to act accordingly. The present is not a case of grave misconduct involving mortal turpitude. There is not a whisper of criminal Kumar Paritosh 2013.11.29 10:25 I attest to the accuracy and integrity of this document CWP No.4145 of 2011 10 intent in this case. Neither any valid or cogent reason to disbelieve the petitioner that he was not present on the spot. If he was not then the incident would not impact his mind and that too at such a tender age. He may have believed there was nothing wrong in what he did or did not.
16. In Jainendra Singh v. State of Uttar Pradesh, 2012 (8) Supreme Court Cases 748, the Supreme Court has summarized the law in matters involving false declarations in declaration forms of past conduct and the cardinal principles to be applied were culled out as below : -
"(i) Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer.
(ii) Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if find not desirable to appoint a person to a disciplined force can it be said to be unwarranted.
(iii) When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry.
(iv) A candidate having suppressed material information and/or giving false information cannot Kumar Paritosh 2013.11.29 10:25 I attest to the accuracy and integrity of this document CWP No.4145 of 2011 11 claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services.
(v) Purpose of calling for information regarding involvement in any criminal case or detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have clear bearing on the character and antecedents of the candidate in relation to his continuity in service.
(vi) The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service.
(vii) The standard expected of a person intended to serve in uniformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted.
(viii) An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, conviction or detention, even if ultimately he was acquitted of the said case, inasmuch as such a situation would make a person undesirable or unsuitable for the post.
(ix) An employee in the uniformed service pre-
supposes a higher level of integrity as such a person is expected to uphold the law and on the Kumar Paritosh contrary such a service born in deceit and 2013.11.29 10:25 I attest to the accuracy and integrity of this document CWP No.4145 of 2011 12 subterfuge cannot be tolerated.
(x) The authorities entrusted with the responsibility of appointing Constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a Constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of Constable.
When we consider the above principles laid down in majority of the decisions, the question that looms large before us is when consideration of such claim by the candidates who deliberately sup-
pressed information at the time of recruitment; can there be different yardsticks applied in the matter of grant of relief.
17. This Court cannot go to the extent of saying or holding that what the respondents did was illegal or unlawful. They applied their rule. They followed due procedure, took action and chose dismissal/termination of service. They may not have been legally obliged to do otherwise. However, such rules and declarations remain subservient to the application of the doctrine of proportionality. In the exercise of equitable jurisdiction and the constitutional duty enjoined upon this Court compels it to lift the veil and examine each case on its own facts and to be not swayed by the tide of the rule. If we apply the principles of proportionality to balance out the equities and competing interests then I feel that this Court in this case should nullify the impugned orders (P-4) and (P-5) on disproportionateness to serve the ends of justice and would hold that the respondents should re- consider the case afresh holistically and humanistically by applying the Kumar Paritosh 2013.11.29 10:25 I attest to the accuracy and integrity of this document CWP No.4145 of 2011 13 principles of proportionality, the conduct of the petitioner on, before and after the registration of the first information reports, the role of the petitioner attributed in Case No.525 of 2008, the services already rendered for significant length of time and not to blindly follow rules 22 and 17(4) of the ITBPF rules and the enrollment form in the special facts of this case in their letter but largely in their true spirit. The questions are: has this man rendered himself absolutely unfit to serve the para military force by not mentioning, even if he knew, of the FIR in the declaration forms? Was he or was he not on the spot is the crucial question?
18. Accordingly, the writ petition is allowed and the impugned orders (P-4) and (P-5) are quashed.
19. In the event of reinstatement, the petitioner would not make a claim for back wages.
(RAJIV NARAIN RAINA)
November 20, 2013 JUDGE
Paritosh Kumar
Kumar Paritosh
2013.11.29 10:25
I attest to the accuracy and
integrity of this document