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Judgment
The present petition under Article 226 of the Constitution of India has been filed seeking the following reliefs :-
call for the entire record in respect of proceedings took place for removal of the petitioner from service
ii) Quash impugned order dated 05-08-2019 Annexure P/1, in the interests of Justice.
iii) Any other writ or Direction which this Hon’ble Court deem fit and proper in the case may also be passed along with the case in the interest of Justice.
It is the case of the petitioner that the petitioner applied for the post of Assistant District Public Prosecution Officer (ADPO) pursuant to the advertisement dated 22.12.2015 (annexure P/2) issued by the M.P. Public Service Commission. At the time of application, she expressly disclosed in her self-attestation form the criminal case registered against her and the fact of her acquittal, and therefore there was no suppression or concealment of any material fact. After successfully clearing the written examination and the interview, she was selected on 17.05.2017 and was thereafter subjected to verification by the respondents. The petitioner again furnished affidavits and relevant information regarding her criminal antecedents. Even when a complaint was subsequently made by her sister-in-law alleging suppression, the M.P. Public Service Commission verified that the petitioner had duly disclosed the criminal case. Consequently, the petitioner was appointed as ADPO on 26.10.2017 on 2 years probation and joined on 09.11.2017. After nearly two years, on the basis of another complaint by the same sister-in-law, the respondents sought an explanation regarding the alleged concealment of criminal antecedents, to which the petitioner replied that the case arose out of a matrimonial dispute and that she had already disclosed all relevant facts. The petitioner had been acquitted by the Sessions Court by judgment dated 22.12.2015 because prosecution was failed to prove the charges beyond reasonable doubt. The petitioner also relied upon the matrimonial dispute and prior complaints made by her against her in-laws alleging harassment and dowry demands, as well as the dismissal of her husband’s divorce petition, to demonstrate the background of the complaints against her. Despite the disclosure of the criminal case, her appointment, joining, and subsequent service, the respondents passed the impugned order dated 05.08.2019 removing her from service, on the ground of criminal case, alleged unauthorized absence, censure, and average ACR grading.
It is contended by learned senior counsel for the petitioner that the petitioner’s service was terminated by the impugned order dated 5.8.2019, as such the major penalty has been inflicted upon the petitioner. From perusal, it is submitted that the order impugned contains the phrase "terminated from service", but for that, no regular enquiry was conducted as per the M.P. Civil Services (CCA) Rules. It is submitted that the petitioner was appointed vide order dated 26.10.2017. It is submitted that vide impugned order, the appointment of the petitioner was not cancelled, in fact, the petitioner has been removed from the service. It is further submitted that the petitioner has submitted an application form (Annexure P-3), which contains the information in regard to the commission of offence and registration of FIR as well as the details of judgment of acquittal. Therefore, there was no concealment or suppression of registration of offence against the petitioner which culminated into acquittal.
It is submitted that after due verification, the petitioner has been given appointment. Therefore, merely on the complaint of Deepa Garg—who was the complainant in the criminal case—the services of petitioner should not have been terminated. The petitioner was acquitted by the competent court of law vide judgment dated 22.12.2015 (Annexure P-20). According to said judgment, the competent court has acquitted the petitioner on the ground that the prosecution could not prove its case beyond reasonable doubt, and as such, it is a clean and honourable acquittal. Therefore, it cannot be made basis to terminate the services of the petitioner. To bolster his submission, the learned senior counsel has relied upon the judgment of the Hon'ble Apex Court in the case of Gajula Thirupathi v. Telangana State Level Police Recruitment Board, 2026 SCC OnLine SC 1104 , to state that the Hon'ble Apex Court in the similar set of facts has quashed the order of termination on the ground that when the parameters to test such antecedents does not amount to moral turpitude then the employee is entitled for reinstatement. It is further submitted by learned Senior Counsel that during pendency of the petition, the services of the petitioner have been regularized vide order dated 16.01.2025, which was placed on record in the reference field of ERP, which has not been denied by the counsel for the respondents.
Per contra, learned counsel for the respondent has rebutted the contention of the petitioner by stating that on a complaint, the competent authority has verified the fact of acquittal of the petitioner and found that the allegations levelled against the petitioner in the criminal offence fall within the definition of moral turpitude, and accordingly passed an order of termination. Therefore, in the light of the judgment passed by the Hon'ble Apex Court in the case of Avtar Singh v. Union of India, (2016) 8 SCC 471, the authorities have applied their mind to come to the conclusion that the criminal antecedents amount to moral turpitude and, therefore, rightly passed an order of termination. It is further submitted that the respondent authority has also found that as the petitioner remained unauthorizedly absent and her services were not found to be satisfactory and up to the mark as per the ACRs of 09.11.2017 to 08.05.2018 and 09.05.2018 to 08.11.2018, coupled with the fact that the petitioner was subjected to punishment of censure, the petitioner's services were terminated.
Heard learned counsel for the parties and perused the record.
From perusal of the impugned order dated 05.08.2019, it is found that the authority, relying on the judgment of the Hon'ble Apex Court in the case of Avtar Singh (supra), has found that the appointing authority is empowered to remove an employee if on verification it is found that the criminal antecedent of the employee was within the definition of moral turpitude.
It is found by the respondents that as per circular dated 05.06.2003 issued by the Home Department of the State, the offences alleged to have been committed by the petitioner, despite falling within the definition of moral turpitude, the petitioner was appointed on probation for a period of two years in the office of District Prosecution Officer, Chhatarpur. It is also found that the petitioner remained unauthorizedly absent during the training period for three days, and the said three days were declared as a period without wages and punishment of censure was inflicted. It is also found that the petitioner's ACRs were average for the last two years and, despite that, the petitioner has not shown any improvement.
Therefore, on combined appreciation of the criminal antecedents and the performance of the petitioner during the probation period, the services of the petitioner have been terminated, inflicting a major penalty.
From perusal of the entire order, it is found by this court that the authority, as if acting as a disciplinary authority, has passed an order of termination of service only on the basis of the complaint, that too giving finding of fact of moral turpitude as well as on the performance of the petitioner. The said order has not been passed after due enquiry as contemplated under M.P. Civil Services (CCA) Rules.
However, as the petitioner was found to be on probation, then definitely the authority was empowered, on appraisal of the petitioner's performance, to pass the order of continuation of the petitioner in service, or to confirm the services of the petitioner, or to discharge the petitioner by cancelling the appointment.
But, in fact, the authority, acting upon as a disciplinary authority, has passed the order as if the order has been passed on the charges levelled against the petitioner in respect of moral turpitude by inflicting punishment of removal from service.
As the order is not simpliciter of cancellation of appointment on finding the petitioner not suitable for the continuation in the service pursuant to guidelines issued by the Hon'ble Apex Court in the case of Avtar Singh (supra), but in fact, placing reliance on the said judgment and forming an opinion on the basis of the said judgment, the authorities have terminated the services of the petitioner.
It is trite law that if the discontinuation of the service of an employee on or before completion of probation period is based in pursuance to allegation or misconduct, then such enquiry is not contemplated; however, if such an order is passed as termination forming the basis of such misconduct, then enquiry is contemplated.
The Hon'ble Apex Court in the case of Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. and Anr, (1999) 2 SCC 21 has held as under:-
"17.There are at least seven Constitution Bench judgments and a judgment of seven Judges of this Court on this issue. It will be seen that from stage to stage, the law has been developed.
18.The first decision of the Constitution Bench was in Parshotam Lal Dhingra v. Union of India [AIR 1958 SC 36 : (1958) 1 LLJ 544] . There a twin test was laid down — whether the order in terms of the appointment gave a right to terminate and whether the order was punitive in nature. If misconduct was the motive, the order was not punitive but if it was the foundation, it was punitive. In that case, the employee was working in a higher post in an officiating capacity and that appointment was terminated and he was reduced in rank. S.R. Das, C.J. stated (para 28, p. 49) that misconduct, negligence, inefficiency or other disqualification might be the motive or the inducing factor which influenced the Government to take action under the terms of the contract of employment or the specific service rule, and the motive was irrelevant. But if the termination was “founded” on misconduct, negligence, inefficiency or other disqualification, it would have to be treated as a punishment. It was also held that the use of the word “termination” or “discharge” was not conclusive. In spite of the use of such innocuous expressions, the court could still hold it to be punitive. On the facts of the case, the termination of the officiating appointment was based upon certain adverse remarks and it was held that it was not by way of punishment."
In the case of Mathew P. Thomas vs. Kerala State Civil Supply Corpn. Ltd. and Ors, (2003) 3 SCC 263, the Hon'ble Apex Court has held as under:-
"7.We have carefully considered the submissions made by the learned counsel for the parties. The main contention urged before the learned Single Judge of the High Court was that the order terminating the services of the appellant was of punitive nature and it attached stigma to him particularly relying on two grounds mentioned in the show-cause notice — (1) that the appellant had colluded with the suppliers for undue pecuniary benefits, and (2) he had betrayed the confidence reposed in him as a responsible officer of the Corporation. The learned Single Judge observed that, admittedly, the appellant was a probationer and his services could be terminated by an order of simple termination without casting any stigma on him; the management was entitled to assess the performance of the probationer during the period he was in service either to confirm him in service or to terminate his services. On facts of the case and material placed before him, he expressed the view that the respondent Corporation found that the performance of the appellant was not satisfactory and as such his services could be terminated. In regard to para 4 of the show-cause notice that the appellant had colluded with the suppliers for undue pecuniary benefits, the learned Single Judge held that it would cast a stigma on the appellant looking to allegations of serious misconduct. In that view, while upholding the order of termination of services of the appellant, the learned Single Judge held thus:
“In the said circumstances, I am not inclined to interfere with the order of termination. However, ground 4 stated in the show-cause notice to the effect that the petitioner has colluded with the suppliers for undue pecuniary benefits, they should frame proper charge and conduct proper enquiry following the procedure laid down in departmental proceedings. If the Corporation withdraws the said charge, no enquiry need be conducted and the order would stand.”
The Division Bench of this Court in the case of Vivek Sharma vs. State of M.P. and others reported in 2018 (1) MPLJ 57 has held as under:-
"13.Apparently, the order terminating the service of the petitioner is innocuous. The petitioner submits that since there is a mention about the criminal case being lodged against the petitioner in the judgment, the review whereof is being sought, the termination order cannot be said to be an order simplicitor but has a foundation which ought to have been considered by lifting the veil. Petitioner places reliance on the decision in State Bank of India v. Palak Modi, (2013) 3 SCC 607 wherein their Lordships were pleased to observe:
“25.The ratio of the above noted judgments is that a probationer has no right to hold the post and his service can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post held by him. If the competent authority holds an inquiry for judging the suitability of the probationer or for his further continuance in service or for confirmation and such inquiry is the basis for taking decision to terminate his service, then the action of the competent authority cannot be castigated as punitive. However, if the allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice.” Thus, in a case where competent Authority holds the inquiry for judging the suitability of the probationer or for his further continuance in service or for confirmation and such inquiry is the basis for taking decision to terminate his service, then the action of the competent Authority cannot be castigated as punitive. What is punitive is when the allegation of misconduct constitutes the foundation for termination. In the case at hand no material is commended at to establish that the termination preceded the allegation of misconduct.
14.In Rajesh Kumar Srivastava v. State of Jharkhand, (2011) 4 SCC 447, it is held that:—
“10.The aforesaid decision to release him from service was taken by the respondents considering his overall performance, conduct and suitability for the job. While taking a decision in this regard neither any notice is required to be given to the appellant nor he is required to be given any opportunity of hearing. Strictly speaking, it is not a case of removal as sought to be made out by the appellant, but was a case of simple discharge from service. It is, therefore, only a termination simpliciter and not removal from service on the grounds of indiscipline or misconduct. While adjudging his performance, conduct and overall suitability, his performance record as also the report from the higher authorities were called for and they were looked into before any decision was taken as to whether the officer concerned should be continued in service or not.”
As petitioner was appointed on probation, therefore, the order passed during probation period regarding termination of service—assuming that it is a discontinuation of the service or not continuing the service on account of dissatisfactory services then the order should have been passed with the said spirit as laid down by the Hon'ble Apex Court.
But, as the order has been passed forming the opinion on the basis of such misconduct, then in the considered opinion of this Court, the authorities ought to have conducted a regular enquiry as contemplated under the CCA Rules.
On considering the backdrop of the case from the angle of discontinuation of service finding the petitioner unsuitable as per the law laid down by the Hon'ble Apex Court in the case of Avtar Singh (supra), it is found by this Court that the petitioner has very much disclosed the fact of acquittal in the application form. However, that was always subject to verification by the respondent authority.
It is not the case that the respondents have not verified the contents of the application form and found it to be untrue, but it is the case that where a complaint was made by the complainant of a criminal case, and on the basis of the said complaint, the authorities have come to the conclusion that the acquittal granted by the competent court was not an honourable acquittal and the allegation levelled against the petitioner was forming the offence of moral turpitude.
From perusal of the judgment passed by the competent trial court, it is found by this Court that the trial court has given a specific finding that the prosecution could not prove any of the charges levelled against the petitioner beyond reasonable doubt and granted the acquittal.
So, in any case, when the prosecution could not prove any charge against the petitioner, then on the basis of any circular of the Home Department, it would not constitute a moral turpitude.
If any circular is issued by the Home Department that merely by commission of such offence it will be assumed that the person has committed an offence of moral turpitude, has to be adjudged by the findings rendered by the competent trial court.
When the trial court has not opined and found the petitioner guilty of such offence, then the authority on the basis of circular cannot solitary hold the petitioner guilty of moral turpitude for terminating the services.
From the perusal of the impugned order, it is found that the competent authority also considering the work of the petitioner during probation period, has given a finding that it was not satisfactory.
However, as it is trite law that if the formation of passing of such order is based on misconduct, then it requires an enquiry, and in absence of such enquiry, this order cannot be said to have passed the judicial scrutiny of this Court.
The Hon'ble Apex court in the case of Gajula Thirupathi (supra) has held as under :-
14.Before addressing the rival submissions, we must put on record that there can be no cavil to the proposition that despite a truthful disclosure by an aspiring candidate about a criminal case ending in acquittal, the employer is free to take its own decision that such a candidate would not be suitable for appointment and, therefore, not entitled to appointment. However, it is equally settled that the State and its officers cannot act arbitrarily. Therefore, when such a decision is subjected to judicial review, to ensure that the same is not held arbitrary, in our view, it must be demonstrated that, (a) there exists material on record to indicate that an offence involving moral turpitude was indeed committed; and (b) there exists material against the candidate even though he may have succeeded in earning an acquittal or a discharge for reasons such as the benefit of: (i) a technical latch, (ii) a reasonable doubt, (iii) the witnesses turning hostile, either because they are won over or because they are threatened or lured into a compromise. If after consideration of those facts an informed decision is taken, the Courts should be slow to interfere with such a decision of the employer/recruiter because ultimately the employer is the best judge to assess whether a person is suitable for appointment in its organization.
15.In Ravindra Kumar v. State of Uttar Pradesh11, a candidature was cancelled for not making full and complete disclosure of past antecedents, this Court while setting aside the cancellation order, after surveying a plethora of precedents, stressed upon the importance of a holistic consideration of various aspects to test the validity of an order rejecting the candidature on ground of past criminal antecedent. Those aspects are summarized in paragraph 32 of the judgment extracted below:
“32.The nature of the office, the timing and nature of the criminal case; the overall consideration of the judgment of acquittal; the nature of the query in the application/verification form; the contents of the character verification reports; the socio-economic strata of the individual applying; the other antecedents of the candidate; the nature of consideration and the contents of the cancellation/termination order are some of the crucial aspects which should enter the judicial verdict in adjudging suitability and in determining the nature of the relief to be ordered.”
When the factual backdrop of the present case has been tested on the anvil of the principle laid down by the Hon'ble Apex Court in the case of Gajula Thirupathi (supra), this Court finds that the authority, without considering the fact of acquittal in its true perspective, has exceeded in its jurisdiction, in terminating the service of the petitioner without holding any regular enquiry on the charges which have been made basis to pass such an order.
Thus, in the light of the judgment passed by the Hon'ble Apex Court in the case of Radhey Shyam Gupta (supra), Mathew P. Thomas (supra) and Vivek Sharma (supra), the impugned order dated 5.8.2019 (annexure P/1) is hereby quashed.
As the petitioner has been continuing in service by virtue of the interim order passed by this Court on 16.10.2019 and confirmed by the respondents vide order dated 16/1/2025, she will continue to reap the service benefits accordingly.
In the result, the petition succeeds and is allowed.