Bhausaheb vs Union of India

Sunil P.Deshmukh, J.(Oral)—Rule. Rule made returnable forthwith. With the consent of learned counsel for the parties this petition is taken up for final disposal at the admission stage.

Pursuant to an application in response to the advertisement published in the year 2011 and on completion of requisite process for selection, the petitioner came to be appointed under an order dated 31.03.2012 as Constable in Central Industrial Security Force (CISF). Petitioner joined said post on 16.04.2012, on the terms and conditions in the appointment order, on probation of two years.

Subsequently, on 04.11.2012, the petitioner was served with a show cause notice by Deputy Inspector General of CISF Orissa (Odisha) seeking explanation as to why his services should not be brought to an end him being not eligible for appointment since he was involved in two criminal cases before he joined the post of constable in CISF.

On consideration of submissions made by the petitioner, termination notice was issued on 24.11.2012. It is against this order, present petition has been filed by the petitioner.

The respondents have submitted their reply to the petition contending that the petitioner was provisionally selected for appointment as constable. In the appointment letter itself it has been clearly mentioned that if the petitioner would be found ineligible at any point of time during initial period of training or probation, he will be liable to be terminated in accordance with the provisions of Rules 25 and 26 of CISF Rules, 2001, which have been annexed to the affidavit in reply.

Two complaints were lodged in the police station, Shirur, Dist-Beed, against the petitioner on allegations of commission of offences under the sections referred to in the same and the same were got clarified from the Superintendent of Police Beed. As charge sheets were filed in Crime Nos.72/2009 and 25/2009, case of the petitioner was referred to FHQrs to assess his suitability.

The respondents have referred to the instructions contained in the policy guidelines issued by the Government of India (MHA) instructing that wherever candidates are involved in criminal case of the nature referred to in Annexure "A" to said guidelines, they are not to be considered suitable for appointments. In accordance with those guidelines, case of the petitioner was examined and the Standing Screening Committee found that the petitioner was acquitted in both the cases, by the Court of JMFC, Shirur on 02.11.2011 because the prosecution witnesses had turned hostile. It is the contention that when a person, who is acquitted for the reason that the witnesses have turned hostile, is not generally to be considered suitable for appointment in CISF.

It is under these circumstances the show cause notice was issued and after granting opportunity to the petitioner, to submit representation, pursuant to powers under Sub Rule (2) of Rule 25 of CISF Rules 2001, services of the petitioner came to be terminated with effect from 24.11.2012 and his name was struck off from the strength of CISF, KRTC, Mundali, Orissa. Representation, thereafter, dated 06.12.2012 addressed to DIG, CISF, KRTC had also been turned down.

For ready reference, herein below reproduced is the relevant extract of Rule 25 and the guidelines contained under Item III (g) and V.

"25. (2) If during the period of probation the appointing authority is of the opinion that a member of the Force is not fit for permanent appointment, the appointing authority may discharge him or terminate the services from the Force after issue of notice of one month or after giving one month''s pay in lieu of such notice, or revert him to the rank from which he was promoted or repatriate to his parent department, as the case may be"

Policy Guidelines

III . The candidate will not be considered for recruitment

(g) Provided further that the candidate shall not be debarred if he / she has been finally acquitted / discharged by a Court, whether an appeal is pending or not against such acquittal"

V. Notwithstanding the provisions of 3 (III) above, such candidates against whom charge sheet in a criminal case has been filed in the court and the charges fall in the category of serious offences or moral turpitude, though later on acquitted by extending benefit of doubt or acquitted for the reasons that the witnesses have turned hostile due to fear of reprisal by the accused person (s), he / she will generally not be considered suitable for appointment in the CAPF. The details of crimes which are serious offences or involve moral turpitude are at Annexure - A. However, cases in which the criminal court, while acquitting, has categorically mentioned that the criminal case would not be a bar on appointment in Government Services, the candidate shall be considered for appointment in the concerned CAPF."

It is obvious that the candidate will be considered unsuitable under the said Guidelines as appearing under Item V, only if the charge falls in category of serious offence or offence of moral turpitude and later on acquitted by extending benefit of doubt or acquitted for the reason that the witnesses have turned hostile due to fear of reprisal by the accused persons.

Looking at the contents of the show cause notice as well as the order of termination dated 24.11.2012 so also the judgment and order of acquittal of the petitioner in the criminal cases filed against him, it clearly appears that although acquittal may be for the reason that the witnesses have turned hostile, however, it is not the case that the witnesses have turned hostile due to fear of reprisal by the petitioner / accused. His acquittal is not for the reason that the witnesses have turned hostile due to fear of reprisal.

The factual position in the present case clearly emerges that there are no reasons or circumstances available against the petitioner rendering him unsuitable to continue his appointment.

In absence of the circumstances rendering the petitioner unsuitable, the power exercised pursuant to Rule 25 (2) is unsustainable and cannot be approved. Thus, the impugned order dated 24.11.2012 at Annexure "C" to the petition (page 15) deserves to be quashed and set aside and is accordingly quashed and set aside.

Resultantly, the petition stands allowed in terms of prayer clause "B" to the petition. Necessary orders of reinstatement of the petitioner be issued to him by concerned respondents within a period of 8 weeks from the date of communication of this order. Rule is made absolute accordingly with no order as to costs.