Binoy Kumar Thakur vs Union Of India And Ors

Heard Mr. Kohinoor N. Bhattacharjee, learned counsel appearing for the petitioner as well as Mr. H. Deb, learned Asstt. S.G. appearing for the respondents-Union of India.

By way of filing this writ petition, the petitioner has prayed for quashing the order dated 24.11.2015(Annexure-4 to the writ petition), passed by the Commandant, 66 Bn. CRPF, keeping in mind the judgment and order dated 17.08.2015, passed by the Division Bench of this Court in WP(C) No.88 of 2008, titled as Binoy Kumar Thakur vs. Union of India & Ors.

The facts, in brief are that:

The petitioner was appointed to the post of Constable(CT/GD) under the respondents vide order dated 20.07.2004 through a proper selection process. After being appointed, the petitioner was sent for training, and on successful completion he was posted at 66 Bn. CRPF, Kumarghat, North Tripura where he was rendering his service most diligently and efficiently. Suddenly, he received a notice of termination vide No.D.V-2/06-66-EC-II dated 21.02.2006 issued under Rule 5(1) of the Central Civil Services(Temporary Service) Rules, 1965 on the allegation that he had suppressed a material fact that at the time of filling up of Attestation Form a criminal case was pending against him which he did not disclose.

The petitioner had challenged the said order of termination by way of filing writ petition, which was registered as WP(C) No.88 of 2008 and the Division Bench of this Court vide judgment and order dated 17.08.2015 has held thus:-

"[10] One distinguishing feature that we have considered is that in Commissioner of Police and others vs. Sandip Kumar, the appointee had suppressed the fact but that was condoned on considering his age. Sandip Kumar, the terminated appointee at the time of enrolment was 20 years of age. The petitioner in this case was as well 20 years of age at the time of his enrolment. But whether the petitioner would be retained in the service or not, according to us, should exclusively be decided by the competent authority. As we have observed that apparently there was no deliberate suppression of fact, the competent authority shall decide afresh whether the petitioner shall be retained in the service or not.

[11] Having held so, the impugned notice dated 21.02.2006, Annexure-1 to the writ petition, is set aside. But the petitioner cannot be reinstated forthwith. Such reinstatement shall be subject to the fresh consideration by the competent authority i.e. the Commandant, 66 Bn. of Central Reserve Police Force or his superiors. Hence, the Commandant, 66 Bn. of Central Reserve Police Force, the respondent No.4 or the superior authorities shall having appreciated the materials of that criminal case, decide whether the petitioner shall be retained in the service or not within a period of 3(three) months from the day when the petitioner shall furnish a copy of this order to the respondent No.4. While considering the matter, the principle as reflected in Commissioner of Police and others vs. Sandip Kumar be given due regard for avoiding any mechanical consideration.

With these observation and directions, this writ petition stands allowed to the extent as indicated above.

There shall be no order as to costs."

A bare perusal of the said judgment and order dated 17.08.2015 it is crystal clear that the Division Bench has held that apparently there was no deliberate suppression of fact considering the attendance circumstances of the facts disclosed by the petitioner. This Court while setting aside the impugned order of termination has passed a specific direction upon the respondents to consider the matter afresh and the superior authorities of the respondents shall have to appreciate the materials of the criminal case concern before deciding the matter whether the petitioner can be retained in service or not. The Division Bench has further given a clear indication that "while considering the matter, the principle as reflected in Commissioner of Police and others vs. Sandip Kumar be given due regard for avoiding any mechanical vconsideration".

In view of the above direction, let me revisit the observations made by the Apex Court in the case of Commissioner of Police & Ors. vs. Sandip Kumar, reported in (2011) 4 SCC 644. The relevant extracts are reproduced hereunder:-

"12. We respectfully agree with the Delhi High Court that the cancellation of his candidature was illegal, but we wish to give our own opinion in the matter.

When the incident happened the Respondent must have been about 20 years of age. At that age young people often commit indiscretions, and such indiscretions can often been condoned. After all, youth will be youth.

They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives.

In this connection, we may refer to the character 'Jean Valjean' in Victor Hugo's novel 'Les Miserables', in which for committing a minor offence of stealing a loaf of bread for his hungry family Jean Valjean was branded as a thief for his whole life.

The modern approach should be to reform a person instead of branding him as a criminal all his life.

We may also here refer to the case of Welsh students mentioned by Lord Denning in his book 'Due Process of Law'. It appears that some students of Wales were very enthusiastic about the Welsh language and they were upset because the radio programmes were being broadcast in the English language and not in Welsh. Then came up to London and invaded the High Court. They were found guilty of contempt of court and sentenced to prison for three months by the High Court Judge. They filed an appeal before the Court of Appeals. Allowing the appeal, Lord Denning observed:

I come now to Mr. Watkin Powell's third point. He says that the sentences were excessive. I do not think they were excessive, at the time they were given and in the circumstances then existing. Here was a deliberate interference with the course of justice in a case which was no concern of theirs. It was necessary for the judge to show - and to show to all students everywhere - that this kind of thing cannot be tolerated. Let students demonstrate, if they please, for the causes in which they believe. Let them make their protests as they will. But they must do it by lawful means and not by unlawful. If they strike at the course of justice in this land - and I speak both for England and Wales - they strike at the roots of society itself, and they bring down that which protects them. It is only by the maintenance of law and order that they are privileged to be students and to study and live in peace. So let them support the law and not strike it down.

But now what is to be done? The law has been vindicated by the sentences which the judge passed on Wednesday of last week. He has shown that law and order must be maintained, and will be maintained. But on this appeal, things are changed. These students here no longer defy the law. They have appealed to this Court and shown respect for it. They have already served a week in prison. I do not think it necessary to keep them inside it any longer. These young people are no ordinary criminals. There is no violence, dishonesty or vice in them. On the contrary, there was much that we should applaud. They wish to do all they can to preserve the Welsh language. Well may they be proud of it. It is the language of the bards - of the poets and the singers - more melodious by far than our rough English tongue. On high authority, it should be equal in Wales with English. They have done wrong - very wrong - in going to the extreme they did. But, that having been shown, I think we can, and should, show mercy on them. We should permit them to go back to their studies, to their parents and continue the good course which they have so wrongly disturbed. [Vide: Morris v. Crown Office (1970) 2 Q.B. 114]

In our opinion, we should display the same wisdom as displayed by Lord Denning.

As already observed above, youth often commit indiscretions, which are often condoned."

Keeping in mind the aforesaid principle, this Court will decide the issue whether the respondents i.e. the superior authorities have appreciated the records of the criminal case and whether they had acted in the light of the spirit of the observations made by the Apex Court in the case of Sandip Kumar(supra).

Mr. Bhattacharjee, learned senior counsel has candidly submitted that there is no material on record that the superior authorities have taken into consideration the order passed by the Division Bench of this Court as aforestated. Mr. Bhattacharjee, learned senior counsel has drawn my attention to the office order dated 24.11.2015, which is reproduced as under:

"OFFICE OF THE COMMANDANT-66 BN CRPF, GOALTORE, WEST MIDNAPORE(W.B)

No.J.II-2/2015-66-EC-II Dated, the 24th Nov, 2015

OFFICE ORDER

No.041708391 EX-CT(GD) Binoy Kumar Thakur was enlisted in CRPF as CT/GD on 27/07/2004. He had undergone basic training wef. 01/08/2004 to 08/08/2005 in 170 Bn, CRPF and after completion of basic training on 08/08/2005, he was relieved on transfer from 170 Bn to this unit on 31/08/2005. Later Commandant 170 Bn, CRPF vide his letter No.D-V-1/05-170-EC-II dated 30/01/2006 has intimated that on verification of his Character and Antecedents by GC CRPF, Bhubaneswar, the District Magistrate, Buxar vide their letter No.927 dated 08/09/2005 has intimated that the said individual was involved in an incident case No.81/04 dated 25/05/2004 under P.S. Simare and booked US/147/148/149/447/504/307 IPC and Rule-27 of Arms Act and accused in presently on bail. The aforesaid case was pending in the Court of Chief Judicial Magistrate Buxar and he was the main accused in the case. Keeping in view above, the Commandant-170 Bn, CRPF requested this Unit to look into the matter and to take appropriate action against him.

Since the above individual had suppressed the above facts at the time of his enlistment in CRPF, so in pursuance of sub-rule(1) of Rule 5 of the Central Civil Service(Temporary Service Rules, 1965) he was given notice that his services shall stand terminated with effect from date of expiry of a period of one month from the date on which this notice is served on or, as the case may be, tendered to him through OC-G/66 Bn CRPF, vide this office letter No.D-V-2/06-66-EC-II dated 21/02/2006 which was received by him on 22/02/2006. Accordingly, in pursuance of Sub-rule (1) of Rule 5 of the Central Civil Services(Temporary Service Rules), 1965, the petitioner was terminated from service wef 23/03/2006 i.e. after expiry of one month notice period and he was ceased to be a member of the Force from 23/03/2006.

In reply to this office notice, No.87002739 HC/GD Vishnu Dev Thakur of BSF, brother of petitioner submitted an application received through DIGP, CRPF, Bhubaneswar, vide his office letter No.P-XII-1/06-EC-I dated 21/03/2006, which was received in this office on 28/03/2006 with the request to take appropriate action, as the individual is a financially poor and innocent as per his knowledge. But when service of any Govt. servant is terminated by appointing authority without mentioning any stigma as per existing rules, it cannot be reviewed by the same authority and this office has intimated DIGP, CRPF, Bhubaneswar, for further informing to petitioner to prefer an appeal to H.O.D. as per sub-para-2 of Rule-5 of CCS(TS) Rule-1965.

Aggrieved with the above punishment, the above individual has preferred an appeal vide CWJC No. Nil of 2006 in the High Court of Judicature at Patna but same was dismissed a withdrawn on the request of said appellant. Latter the, appellant has against preferred an appeal vide Civil Writ petition No.88/2008 before Guwahti High Court at Agartala bench and now the petitioner has field CM application No.NIL of 2011 in WP(C)88/2008 before the Hon‟ble High Court at Agartala bench.

Copy of the Hon‟ble Court Judgement/order dated 17/08/2015 passed by Hon‟ble High Court of Tripura at Agartala in WP(C) No.88/2008 field by Ex-CT(GD) Binoy Kumar Thakur of 66 Bn VS-UOI & Others, received in this office vide the IGP, Tripura Sector, C.R.P.F., Agartala(Tripura) office letter No.J.II.4/08-TPA(P/Cell) dated 31/08/2015 are as under:-

i) One distinguishing feature that we have considered is that in Commissioner of Police and other vs. Sandip Kumar, the appointee had suppressed the fact that was condoned on considering his age Sandip Kumar, the terminated appointee at the time of enrolment was 20 years of age. The petitioner in this case was as well 20 years of age at the time of his enrolment. But whether the petitioner would be retained in the service or not, according to us, should exclusively be decided by the Competent authority. As we have observed that apparently there was no deliberate suppression of fact, the competent authority shall decide afresh whether the petitioner shall be retained in the service or not.

ii) Having held so, the impugned notice dated 21/02/2006, Annexure-1 to the writ petition, is set aside. But the petitioner cannot be reinstated forthwith. Such reinstatement shall be subject to the fresh consideration by the competent authority i.e. Commandant-66 Bn, CRPF or his superiors. Hence, the Commandant 66 Bn, CRPF, the respondent No.4 or the superior authorities shall having appreciated the materials of the criminal case, decide whether the petitioner shall be retained in the service or not within a period of 3(three) months from the day when the petitioner shall furnish a copy of this order to the respondent No.4. While considering the matter, the principle as reflected in Commissioner of Police and others vs. Sandip Kumar be given due regard for avoiding any mechanical consideration.

The DIGP(LAW) Dte, CRPF, vide office Signal No.J-II-636/2008-LWP(II) dated 16/10/2015 has intimated that "Court Order dated 17/08/2015 has been examined and the competent authority has accorded approval to comply with the same. Keeping in view of above, please comply with Court Order(Supra) and pass a reasoned and speaking order. Also forward copy of speaking order to the petitioner through Registered Post(AD) under intimation of Law Dte. While considering the matter, the instructions issued vide GOI, Dept of PER & TRG OM No.11012/7/91-Estt-(A) dated 19/05/2993 read with Rule-11 of CCS(CCA) Rules that wherever it is found that a Govt. servant has furnished false information in order to secure appointment, he should not be retained in service. If the Govt. servant is a permanent employee, he should be removed or dismissed after an enquiry and in no circumstances should any other penalty be imposed may be kept in mind".

Before passing final order on the instant case, once again, I have carefully gone through the mistake committed by No.041708391 EX-CT(GD) Binoy Kumar Thakur, and Hon‟ble Court Judgment/Order dated 17/08/2015 and the following facts have come to the light ::-

i) His Character and Antecedents have been verified by GC CRPF, Bhubaneswar after his enlistment. In the verification report, the District Magistrate, Buxar vide letter No.927 dated 08/09/2005 has intimated that the said individual was involved in a case No.81/04 dated 25/05/2004 under P.S. Simire and booked US/147/148/149/447/504/307 IPC and Rule-27 of Arms Act and accused is presently on bail. The aforesaid case was pending in the Court of Chief Judicial Magistrate Buxar and he was the main accused in the case.

ii) The above individual had suppressed the above facts at the time of his enlistment in CRPF and furnished false information in order to secure appointment, which is serious in nature. Accordingly, he was terminated from service wef 23/03/2006, in pursuance of Sub-Rule (1) of Rule 5 of the Central Civil Services (Temporary Service Rules), 1965 by the Commandant, 66 Bn.

iii) Aggrieved with the above punishment, the above individual preferred an appeal vide Civil Writ petition No.88/2008 before Guwahti High Court at Agartala bench and now the petitioner has field CM application No.NIL of 2011 in WP(C) 88/2008 before the Hon‟ble High Court at Agartala bench.

iv) The Hon‟ble Court of Tripura at Agartala vide Judgment/order dated 17/08/2015 has ordered that the Commandant 66 Bn, CRPF, or the superior authorities shall having appreciated the materials of the criminal case, decide whether the petitioner shall be retained in the service or not.

Further, being the disciplinary authority, I want to mention about the WARNINGS of the Verification Roll i.e. CRPF 25, which the petitioner filled up duly singed knowing the facts as under:-

a) The furnishing of false information or suppression of any factual information in the Verification Roll would be a disqualification and is like to render the candidate unfit for employment under the Government.

b) If detained, convicted, debarred etc. subsequent to the completion and submission of this Form the details should be communicated immediately to the authority to whom the Verification Roll has been sent earlier failing which it will be deemed to be a suppression of factual information .

c) If the fact that false information has been furnished or that there has been suppression of any factual information in the Verification Roll comes to notice at any time during the service of a person, his services would be liable to be terminated.

Based on the above facts and circumstantial evidences and documentary exhibits on records and after considering all pros and cons of the case and orders of the Hon‟ble Court of Tripura and as well as GOI, Dept of PER & TRG OM No.11012/7/91-Estt-(A) dated 19/05/1993 read with Rule-11 of CCS(CCA) Rules and the directions issued vide DIGP(LAW) Dte., CRPF, office signal ibid, I the undersigned being disciplinary authority after application of mind judiciously, have found that No.041708391 EX-CT(GD) Binoy Kumar Thakur had furnished false information in order to secure appointment i.e. suppressed the facts, which the petitioner did without doubt, which is serious in nature. In view of the prevalent rule position in the situation, the petitioner should not be retained in service and his TERMINATION from service wef. 23/03/2006 is justified and stand with gravity of offence.

Details of individual is as under:-

No.041708391 EX-CT/GD Binoy Kumar Thakur, S/O Sri Ram Paravesh Thakur, Vill+PO-Gangauli, P.S-Simari, Distt-Buxar, State-Bihar.

Sd/- (Sumant Kumar Jha) Commandant-66 Bn. CRPF"

On careful scrutiny of the said office order, it has come to light that while upholding the order of termination of the petitioner from the service w.e.f. 23.03.2006 it has been reiterated that the said office order has been passed on the basis of the fact that the petitioner while filling up of the Attestation Form had suppressed the material fact that a criminal case is pending against him. The office order itself manifests that they did not call for any of the records of the criminal case in terms of the direction of this Court that "the Commandant, 66 Bn. of Central Reserve Police Force, the respondent No.4 or the superior authorities shall having appreciated the materials of that criminal case, decide whether the petitioner shall be retained in the service or not within a period of 3(three) months from the day when the petitioner shall furnish a copy of this order to the respondent No.4. While considering the matter, the principle as reflected in Commissioner of Police and others vs. Sandip Kumar be given due regard for avoiding any mechanical consideration."

While deciding the earlier writ petition[WP(C) No.88 of 2008], this Court had observed thus:

"Having surveyed those cases, it appears that while obtaining appointment, if the material information is suppressed in respect of the criminal antecedent or involvement in the criminal case, the apex court has uniformly held that suppression of such material information itself amounts to moral turpitude which is a separate and distinct „matter‟. In such a case service of the appointee concerned is liable to be dispensed with, even if on trial the person concerned stood acquitted/discharged. But the case in hand is premised differently. This Court has not found any record to indicate that the petitioner had knowledge of the police case before or on the day of filing the attestation form. The petitioner was enrolled on 20.07.2004. As such, it has to be assumed that the attestation form was filed prior to 20.07.2004. There is no dispute that the police case was lodged on 25.05.2004. Even though knowledge is probable, since there is no record to indicate that the petitioner had knowledge of the said criminal case no adverse inference can be drawn on „suppression‟. From the records produced by the petitioner amidst the hearing in terms of the order of this Court dated 23.03.2015 it has been revealed that the petitioner obtained the anticipatory bail from the Patna High Court on 07.04.2005. This information derived from the judicial record, from the order dated 07.04.2005 by the Patna High Court in Cr. Misc. No.11662 of 2005 and from the records of the first track court, the court of the Addl. District Judge, 2nd, Buxar in S.T. 251 of 2006, clinches the claim of the petitioner." (emphasis added)

There is nothing on record that the Commandant, 6th Bn. CRPF or the superior authorities of the petitioner had taken into account of the Case No.S.T.251 of 2006 at any point of time in course of the process of taking decision whether the petitioner is fit for retaining in service or not, which is reflected in the office order dated 24.11.2015(Annexure-4 to the writ petition).

In my considered view, the basis of issuing office order dated 24.11.2015 is the suppression of the fact that at the time of filling up of the Attestation Form the petitioner did not disclose that there was a pending criminal case against him. This question of suppression of material fact has already been decided by this Court that there was no suppression of fact. This Court has also kept in mind the spirit of the order passed by the Apex Court in Sandip Kumar(supra) and also kept in view the age of the petitioner as 20(twenty) years. For convenience, I like to reiterate the observation of the Apex Court as made in para 13 of the case of Sandip Kumar(supra), which is reproduced hereunder:-

"13. When the incident happened the Respondent must have been about 20 years of age. At that age young people often commit indiscretions, and such indiscretions can often been condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives."

A perusal of the office order dated 24.11.2015, I find nothing that the Commandant, 66 Bn. CRPF or any other superior authorities had kept this spirit in mind while upholding the termination order dated 21.02.2006. In the instant case, the petitioner was only of 20(twenty) years of age at the time of appointment.

After meticulous analysis of the office order dated 24.11.2015, in my considered view, the said order upholding the order of termination has been passed in total disregard of the dictum and the competent authority was wholly misdirected while issuing the said order. From the office order dated 24.11.2015 it is apparent that the respondents have stuck to their earlier observation and decision without appreciating further materials from the criminal case records relating to the petitioner. A Division Bench of this Court has already indicated while deciding WP(C) No.88 of 2008 that there is no clinching evidence on record that the petitioner had knowledge about any criminal case against him at the time of filling up of the Attestation Form and held that "no adverse inference can be drawn on suppression".

In course of hearing, Mr. Bhattacharjee, learned counsel for the petitioner has submitted that the petitioner has honourably acquitted from the criminal case. The record speaks that the petitioner was granted anticipatory bail by the Hon'ble Patna High Court despite his implication with a case, which was registered under Sections 307 of the IPC and 27 of the Arms Act and that itself throws enough doubt about the complicity of the petitioner with the case and apparently manifests lack of incriminating materials, against the petitioner as one of the accused in the case.

Having regard to the totality of the circumstances, in my opinion, the office order dated 24.11.2015 upholding the termination order of the petitioner is wholly misconceived since it is passed in breach of the observation and direction of this Court in WP(C) No.88 of 2008 and is liable to be set aside. Once, a Division Bench of this Court has overruled a particular view point of the competent authority-respondents as aforestated, the repetition of the same as ground for termination is obviously redundant.

Accordingly, I hold that the petitioner is entitled to be reinstated in service under the respondents. It is directed that the respondents shall issue the order of reinstatement of the petitioner into the service within a period of 30(thirty) days from the date of receipt of a copy of this order.

With the aforesaid observations and directions, this writ petition is allowed and accordingly the same stands disposed.