IN THE GAUHATI HIGH COURT. Writ Petition (C) No.606 of 2016

Transcription

1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Writ Petition (C) No.606 of 2016 Sri Bhabesh Das Son of Late Dhruba Das Vill Kulhati, No.2 Hidalghurisupa Police Station- Hajo Dist;Kamrup, Assam.Petitioner -Versus- 1.The Union of India Represented by the Secretary Ministry of Home Affairs Government of India, New Delhi 2. The Director General Central Industrial Secruity Force Ministry of Home Affairs Block No.13, CGO Complex Lodhi Road, New Delhi 2. The Principal, RTC Bhillai (M.P) Central Industrial Secruity Force PIN Respondents BEFORE THE HON BLE MR. JUSTICE NELSON SAILO For the Petitioner For the Respondents : Ms. B Choudhury, Advocate. : Ms. R Devi, Advocate Date of Hearing : Date of Judgment : Page 1 of 13

2 Heard Ms. B Choudhury, the learned counsel appearing for the writ petitioner and Ms. R Devi, the learned counsel appears for the respondent No This is a second round writ petition filed by the petitioner, the earlier writ petition being WP ( C) No of The petitioner responded to the Advertisement floated by the respondent authorities for the post of Constable (GD) under the Central Industrial Security Force and he accordingly appeared for the physical test and written test held on and respectively. The petitioner was thereafter provisionally appointed by the respondent as Constable GD (vide communication dated ). Prior to his appointment the petitioner on signed the attestation form whereby he had given an undertaking that no criminal case was pending against him. However, an FIR was lodged against the petitioner on and a criminal case was instituted against him. This came into light while verifying the antecedent of the petitioner whereby the Deputy Commissioner, Kamrup, Guwahati had written to the Deputy Inspector CISF stating that a case vide Hajo PS Case No. 220 of 1994 under Section WP (C) No. 606 of 2016 Page 2 of 13

3 147/148/149/447/326/302 IPC was registered against the petitioner and others and the case was sub-judiced before the Court. Thereafter the respondent issued a notice upon the petitioner on in exercise of the power conferred by paragraph -2 (a) of the form of agreement executed by him under Rule-15 of the CISF Rules, 1969 for terminating his service by giving him a month s notice. It was further provided that upon expiry of the one month notice, the petitioner shall deemed to be no more in service in the CISF. 4. The petitioner replied the said notice on and in terms of the notice, the petitioner was terminated from service w.e.f Against the termination order, the petitioner, the petitioner filed a representation before the respondent authorities on and seeking his recommendation in service. However, the respondent authorities vide communication dated rejected the representation of the petitioner which prompted him to file the WP ( C) No.2686 of 2014 before this Court. The writ petition was disposed of vide order dated after noticing that there was no dispute that the pettoner gave his undertaking prior to his appointment on while the FIR was lodged only on Consequently, the rejection of the representation of the petitioner dated was set aside and the WP (C) No. 606 of 2016 Page 3 of 13

4 respondent Nos. 2 and 4 i.e. Director General, CISF and Group Commander, CISF were directed to reconsider the matter afresh. The petititoner was also permitted to make a fresh representation and the respondents concerned were directed to dispose of his representation by a speaking order within a period of 3 months from the date of receipt of certified copy of the order. 5. Pursuant to the aforesaid direction, the respondent authorities vide order dated disposed of the representation of the petitioner by rejecting the same. Aggrieved, the petitioner is again before this Court trhough the instant writ petition. 6. Appearing for the writ petitioner, Ms. B Choudhury submits that as can be seen, the undertaking given by the petitioner prior to his appointment was on whereas the FIR was lodged only on Therefore, there was no criminal proceeding pending against the writ petitioner at the time when the undertaing was given. In such circumstances the respondent authorities could not have terminated his service on that premise. She submits that although this Court vide order dated in WP (C) of 2686 of 2014 had directed the respondent authorities to reconsider the representation of the petitioner afresh in view WP (C) No. 606 of 2016 Page 4 of 13

5 of the fact that the FIR filed against the petitioner was preceded by undertaking. However, the respondent authority failed to consider the case of the petitioner as was directed and rejected his representation and the on the same ground of suppression of facts as was pointed out while his earlier representation was rejected on Ms. B Choudhury further submits that the only difference with the subsequent order of rejection dated passed by respondents authorities is that the word subsequent was deployed in rejecting her representation. She submits that the word subsequent has been taken from paragrph 2 of the the attestation form signed by the petitioner on She submits that since the FIR was submitted subsequent to the signing of the attestation form/ undertaking, the petitioner could not have suppressed any information so far as the criminal case is concerned from the respondent authorities. The petitioner in fact having been acquitted by the criminal court ultimately on , she submits that the respondent authorities should be directed to allow the petitioner join back in his service. 7. Ms. B Choudhury in support of her submission relies upon the following decisions (i) Judgment and order dated in WP (C) No.832 of 2008 in the case Sri Sanjay Kumar Narsinbhai Parmer vs- WP (C) No. 606 of 2016 Page 5 of 13

6 Union of India & Ors (Gauhati High Court ) (ii) WP (C)No of 2013 ( High Court of Jharkhand) i.e. K Jaya kumar vs- CISF & Others (iii) Basanti Prasad vs- Chairman, Bihar School Examination Board and Ors reported in (2009) 6 SCC 791 (iv) Arunima Baruah vs- Union of India & Ors.2007 (6) SCC By referring to the case of Sanjay Kumar (supra) Ms. B Choudhury submits that this Court in the case under reference by referring to the decision of the Apex Court in the case of Commissioner of Police & Ors vs- Sandeep Kumar reported in (2011) 4 SCC 644 observed that the approach upon the minor mistake committed by the petitioner when he was young and energetic should not attract the extreme penalty of removal from service and considering the eventual acquittal from the criminal proceedings directed reinstatement of the petitioner therein. She therefore submits that the instant case is therefore squarely covered by the said judgment and the petitioner should be reinstated in service. 9. By referring to the decision of the Apex Court in the case of Arunima Baruah (supra) Ms. B Choudhury submits that it is a trait law so as to enable the Court to refuse to exercise, it is the discretionary jurisdiction, suppression must be of the material facts. What would be a WP (C) No. 606 of 2016 Page 6 of 13

7 material fact, suppression whereof would disentitle to obtain a discretionary relief would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary where of would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the Court may not refuse to exercise its discretionary jurisdiction. She therefore submits considering the case at hand, the petitioner had given the undertaking in the Attestation Form at the relevant time when there was no criminal proceeding pending against him and therefore, the subsequent filing of the FIR against him alone cannot be the basis for termination of his service. She submits that same principle was adopted in case of the K Jayakumar (supra) by the Jharkhand High Court. 10. By referring to the case of Basanti Prasad, the learned counsel for the petitioner submits that delay by itself cannot be the ground for rejecting the claim of the petitioner. In the case under reference, she submits that the petitioner therein who was represented by his wife before the Apex Court was terminated on the ground of being convicted by Judicial Magistrate and when the litigant approached the High Court, the writ petition was dismissed on grounds of delay and WP (C) No. 606 of 2016 Page 7 of 13

8 laches. The Apex Court therefore held that High Court ought to have considered the case on merit instead of adopting hyper technical approached. Therefore in the light of the said decision, the petitioner herein cannot be deprived of the fair consideration by resorting to hyper technical approach such as delay. Considering the fact that there was no criminal case pending against the petitioner at the time of giving the undertaking and also his subsequent acquittal in the criminal trial, the learned counsel for the petitioner Ms. B Choudhury submits that the respondent authorities should be directed to reinstate the petitioner back into service. 11. Appearing for the respondents Ms. R Devi, the learned CGC by referring to the Attestation Form singed by the petitioner on submits that the petitioner has clearly suppressed the factual information from the respondent authorities since he was required to intimate the registration of the case against him even though it was after signing the Attestation Form, the same is clearly provided at paragraph-2 of the Attestation Form. Furthermore, in the Form of Agreement signed by the petitioner on , it has clearly been provided that the service of the petitioner can be terminated by the authority concerned at any time during the period of his initial training or during the period of probation by WP (C) No. 606 of 2016 Page 8 of 13

9 issuing of notice of one month or tendering one month s pay in lieu of the notice. In that instant case, the petitioner was given a month s notice prior to his termination in terms of the Form of Agreement that was signed by taking into account of the fact that he failed to inform the respondent authorities about the criminal after filling up of the Attestation Form, the petitioner was accordingly terminated from service. 12. Ms. R Devi further submits that the verification of the antecedent and character especially to those employed in an uniformed force cannot be casually overlooked. Especially when it is a case of involvement in a criminal case, the appointing authority would be well justified to examine the desirability of appointing a person as a Constable in a disciplined force. Therefore, while examining the antecedent of the candidate, it would be immaterial as to whether such person or candidate has been acquitted by the criminal court. The learned CGC in support of her submissions relies upon the following decisions:- (i) Jaidendra Singh vs- State of Uttar Pradesh reported in (2012) 8 SCC 748, (ii) Commissioner of Police, New Delhi vs- Mehar Singh reported in (2013) 7 SCC 685 (iii) Kendriya Vidyalaya Sangathan & Ors vs- Ram Ratan Yadav reported in (2003) 3 SCC 437. WP (C) No. 606 of 2016 Page 9 of 13

10 13. By referring to the decision of the Apex Court in the case of Jainendra Singh, the learned CGC submits that although the candidate may be found to be physically fit and successful in the written test and interview, nevertheless, the appointing authority will be justified in rejecting the candidature of the candidates on ascertaining the antecedent s record. The Apex Court has clearly held that the verification of the character and antecedent is one of the important criteria to test whether the selected candidate is suitable for the post under the State on account of his antecedent. It was also held that a candidate having suppressed material information cannot claim the right to continue in the service and the employer having regard to the nature of employment as well as other aspect has discretion to his service. She submits that in the instant case as well, the petitioner was required to intimate and inform authorities concerned in terms of the undertaking given by him in the Attestation Form even though the FIR was filed subsequently. Therefore, the service of the petitioner was rightly terminated after following the due procedure that was provided in the Form of Agreement as well as the Attestation Form 14. The learned CGC by referring to the case of Commissioner of Police, New Delhi & anr.(supra) submits that similar view has been taken WP (C) No. 606 of 2016 Page 10 of 13

11 by the Apex Court in so far as recruitment of constable in uniformed service is concerned. Likewise, the same was the consideration and findings of the Apex Court in the case of Kendriya Vidyalaya Sanghathan (supra) wherein it was further observed that the purpose of seeking information as per the information to be given in the application form is not to find out either the nature or gravity of the findings or the ultimate result of the criminal case but information is sought only with a view to judge the character and antecedent of the applicant for continuity in service. She therefore submits that the petitioner cannot seek his reinstatement into service only on the basis of his acquittal in the criminal proceedings which otherwise is not even a honorable acquittal. Ms. R Devi thus submits that the writ petition has no merit and the same should be dismissed. 15. I have considered the submissions made by the learned counsel for the rival parties and I have also perused the materials available on record including the records produced by the learned CGC. It is to be noted that although the fact of the FIR being filed was not known to the petitioner when he had filled up the Attestation Form on but the fact remains that the petitioner was required to furnish information about the criminal proceeding in terms of the Attestation WP (C) No. 606 of 2016 Page 11 of 13

12 Form that was duly executed by him when he joined for training. It is also to be noted that the appointing authority in so far as the probationer is concerned reserves the right to terminate the service of the appointee during probation as stipulated in the Attestation Form as well as in the Form of Agreement. In that view of the matter, I am of the considered opinion that non-furnishing of the required information to the respondent authorities after filing of the FIR would amount to suppression of facts which would warrant necessary action from the respondent authorities including termination from service. 16. With regard to the reliance placed upon the case of Basanti Prasad (supra) by Ms. B Choudhury to contend that delay cannot be a ground to reject relief to the petitioner, I am of the considered view that the case has no application to the instant case in as much as in Basanti Prasad (supra) termination of the employee was preceded by his conviction by the trial court. Therefore, delay itself would be a ground to refuse discretionary relief to the petitioner. 17. As regards the desirability of appointing a person who is connected to a criminal case, this aspect is not being looked into in as much as the ground for termination of the petitioner s service was only on WP (C) No. 606 of 2016 Page 12 of 13

13 account of suppression fact. In the light of the above observation and findings, I do not find any merit in the writ petition and the same is accordingly dismissed. 18. Under the above facts and circumstances, the parties are directed to bear their own costs. JUDGE Nivedita WP (C) No. 606 of 2016 Page 13 of 13