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Judgment
Heard Sri Rajesh Yadav, learned counsel for the petitioner and Sri Umesh Chandra Tripathi, learned Additional Chief Standing Counsel for the State.
The instant petition has been filed with the following relief:
"(a)issue an order, direction or writ in the nature of certiorari, call for records and quash the dismissal order dated 2.12.2004 passed by Senior Commandant, Respondent No. 4 (Annexure-1), appellate order dated 5.4.2005 passed by Deputy Inspector General, Respondent No. 3 (Annexure -2) and revisional order dated 25.10.2006 passed by Inspector General, Respondent No. 2 (Annexure-3) respectively.
(b)issue an order, direction or writ in the nature of certiorari, call for records and quash the inquiry report dated 28.9.2004 recorded by Inquiry Officer (Annexure-17) and subsequent proceedings initiated in pursuance thereof.
(c)issue an order, direction or writ in the nature of mandamus and direct the respondents not to given effect to the dismissal order dated 2.12.2004 passed by Senior Commandant, Respondent No. 4 (Annexure-1), appellate order dated 5.4.2005 passed by Deputy Inspector General, Respondent No. 3 (Annexure-2) and revisional order dated 25.10.2006 passed by Inspector General, Respondent No. 2 (Annexure-3) respectively.
(d)issue an order, direction or writ in the nature of mandamus and direct the respondents to reinstate the petitioner in service of C.I.S.F. with all consequential benefits.
(e)issue an order, direction or writ in the nature of mandamus and direct the respondents to pay salary/subsistence allowances for suspension period from 8.11.2003 to 1.2.2004."
The briefly stated facts of the case are that the petitioner herein was appointed as Constable in Central Central Industrial Security Force (CISF), on 18.08.1999. While joining, in the Attestation Form, the answer to the question in Column 12(b) and 12(i), meant for the information about antecedents of the petitioner with regard to any criminal case registered against him, the answer given by the petitioner was 'No', whereas it transpired that a criminal case, being Criminal Case No. 106 of 1999, was registered against the petitioner on 13.04.1999 under Sections 420, 468, 471 IPC.
Subsequently, while the petitioner was serving as Constable, another criminal case, being Case Crime No. 91 of 2003, under Sections 307, 323, 504 IPC was also registered against the petitioner on 06.09.2003. However, no written information about the subsequent case registered against the petitioner was given by the petitioner. On the aforesaid two allegations against the petitioner, the disciplinary proceedings were initiated against the petitioner. On 02.12.2004, the charge-sheet was issued against the petitioner framing two charges: one with with regard to the concealment of the fact of registration of the criminal case by the petitioner in the Attestation Form, and further, it was reported that the petitioner was arrested on 24.08.2001 in connection with the Case Crime No. 106 of 1999. The second charge was framed with regard to non-intimation of the registration of the Case Crime No. 91 of 2003. The aforesaid charge-sheet was duly sent through the registered post at the permanent address of the petitioner as well as the same was also sent through the SHO, Police Station- Khurja Dehat, District- Bulandshahr.
In response to the aforesaid charge-sheet, the petitioner has submitted his reply on 22.06.2004. In the aforesaid reply, the petitioner has claimed that so far as the information asked for in the said Attestation Form, under Clause 12(b), "Have you ever been prosecuted?", and in Clause 12(i), "Is any case pending against you in any court of law at the time of filling of the Attestation Form?", since the petitioner was not having any knowledge of the registration of the FIR against him at the time of the filling-up of the Attestation Form and he was not facing any prosecution in any court of law on 18.08.1999, he has answered both the clauses as "No". However, with regard to the factum of his arrest on 24.08.2001, it is submitted on behalf of the petitioner that the petitioner was granted Anticipatory Bail, vide order dated 13.08.2001, in the Case Crime No. 106 of 1999 by the Delhi High Court prior to his arrest and he has submitted the bail bonds on 24.08.2001. Therefore, since the Anticipatory Bail was granted to the petitioner, the factum of arrest is not established. With regard to the second charge, the petitioner has admitted that though he has not given any written intimation, but he has informed to the authorities concerned i.e., the Commandant, NTPC Dadri, orally with regard to the registration of the Case Crime No. 91 of 2003. Therefore, he has pleaded guilt for not sending the written intimation and has also prayed for condoning the aforesaid act of non-intimation about the criminal case registered against him in 2003.
During the inquiry proceedings, the statement of witnesses were recorded and the opportunity to cross-examine the said witnesses was granted to the petitioner. The petitioner chose not to cross-examine the witnesses. The Inquiry Officer, vide its inquiry report dated 28.09.2004, considered the averments and evidence available on record, on the basis of the report of the concerned police station, the fact was recorded that the petitioner was arrested on 24.08.2001. Thereafter, the Disciplinary Authority had examined the inquiry report and having satisfied, has issued a show-cause notice to the petitioner, which was responded by the petitioner and thereupon the Disciplinary Authority, after consideration of the explanation submitted by the petitioner, has passed the impugned order dated 02.12.2004, removed the petitioner from service. Being aggrieved, the petitioner herein had filed a statutory appeal, which was also rejected vide impugned order dated 05.04.2005. Thereupon, the petitioner herein has filed a revision petition, which was also rejected vide impugned order dated 25.10.2006. Being aggrieved by the aforesaid all three orders, the instant writ petition has been filed by the petitioner herein.
Learned counsel for the petitioner submits that the petitioner has filled up the Attestation Form on 18.08.1999 and the said criminal case being Case Crime No. 106 of 1999 was registered on 13.04.1999 with regard to submission of some forged documents before the Authorities. However, at the time of the filling of the Attestation Form, the petitioner was not aware about the registration of the said criminal case and thus, he has rightly answered the Attestation Form in Clause 12(b) and 12(i) as in negative. Therefore, no fault can be found with the aforesaid submission by the petitioner in the Attestation Form.
So far as the factum of arrest as has been narrated in the first charge on 24.08.2001, learned counsel for the petitioner submits that the petitioner was granted Anticipatory Bail, vide order dated 13.08.2001 and pursuant thereto, the bail bonds were submitted by the petitioner on 24.08.2001 and the petitioner has never been arrested in connection with the said case.
He further submits that later, the petitioner has been acquitted in the said Case Crime No. 106 of 1999, vide judgment and order dated 01.07.2017, passed by the Additional Chief Metropolitan Magistrate, North, Rohini Courts, Delhi. Therefore, the allegation of his arrest was baseless and since the petitioner has been acquitted in the said case, no imputation can be made against the petitioner with regard to the said case.
So far as the Charge No. 2 is concerned, it is the claim of the petitioner that on the date of registration of the said case, the petitioner was on duty in CISF. Since, he was selected in the Sports Quota, he was practicing sports in the ground. However, no written record for his presence is available. However, learned counsel for the petitioner submits that after the registration of the said case against the petitioner, the petitioner has intimated to the Commandant, NTPC Dadri. However, he could not submit any written intimation in this regard to the authorities concerned, though oral information was given. Thus, learned counsel for the petitioner submits that there was no deliberate concealment on his part while submitting the Attestation Form and since he was not arrested in Case Crime No. 106 of 1999 at any point of time, there was no occasion for the petitioner to intimate.
Further, with regard to the second case, it is submitted by learned counsel for the petitioner that the petitioner has approached this Court by filing the writ petition against the Case Crime No. 91 of 2003. Initially, the petitioner has filed a writ petition before this Court, wherein the petitioner's arrest was stayed and after the submission of the charge-sheet, the petitioner has again filed a 482 Cr.P.C. application before this Court, wherein the further proceedings were stayed by this Court and the said 482 Cr.P.C application is still pending before this Court and in both the cases, the petitioner has never been arrested. Therefore, learned counsel for the petitioner submits that the finding of arrest and concealment of fact as recorded by the Inquiry Officer are without any basis and cannot be sustained. Hence, he seeks quashing of the impugned orders.
Learned counsel for the petitioner has relied upon the judgement of the Apex Court in Vikram Singh v. Commr. of Police, (2018) 1 SCC 308 , which reads as under:
"2.The law on the said issue has been laid down by this Court in Avtar Singh v. Union of India [Avtar Singh v. Union of India, (2016) 8 SCC 471 : (2016) 2 SCC (L&S) 425] which reads as follows: (SCC pp. 507-08, para 38)
“38.1.Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.
38.2.While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.
38.3.The employer shall take into consideration the government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
38.4.In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourses appropriate to the case may be adopted:
38.4.1.In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
38.4.2.Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
38.4.3.If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.
38.5.In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.
38.6.In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion, may appoint the candidate subject to decision of such case.
38.7.In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.
38.8.If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.
38.9.In case the employee is confirmed in service, holding departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.
38.10.For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
38.11.Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him.” (emphasis in original)
3.Though the learned counsel appearing for the appellant made strenuous submissions to contend for the position that the lapses, if any, are only to be condoned since everything occurred prior to the filing of the application and the appellant had already been acquitted also even before filing of the application. As rightly pointed out by Ms Kiran Suri, learned Senior Counsel, appearing for the respondent, if at all anything is to be done it can only be on consideration by the respondent of all the relevant aspects, in the light of the judgment referred to above.
4.Accordingly, this appeal is disposed of as follows:
4.1.The appellant is permitted to file a detailed representation before the respondent, within a period of one month from today. In the event of filing of such a representation, the respondent will consider the same in the light of the judgment referred to above and pass a reasoned order after affording an opportunity of hearing to the appellant, within a period of four months thereafter.
4.2.We make it clear that the judgment of the High Court [Commr. of Policev. Vikram Singh, 2013 SCC OnLine Del 2373] shall not stand in the way of the respondent Commissioner of Police passing orders, as above."
Learned counsel for the petitioner has further relied upon the judgement of the Apex Court in Union of India vs. Amit Singh (2018)1 SCC 293, wherein following observations were made by the Apex Court:
"4.Having regard to the facts and circumstances of the case, we are of the view that this is a case where the respondent should be permitted to file an appropriate representation before the appointing authority. Ordered accordingly. In the event if such a representation is filed, in the light of the judgment referred to above and in particular para 38.4.1 of the judgment read with any other relevant instructions, a speaking order on the representation shall be passed after affording an opportunity for hearing to the respondent, within four months.
5.We make it clear that while passing the orders, as above, the appointing authority will also verify whether there was involvement of the respondent in any other criminal case, his age at the time of incident, his conduct during the period of service and also the fact that he has served for around five years under the CRPF."
Per contra, Sri Umesh Chandra Tripathi, learned counsel for the respondents, submits that with regard to the first charge and the registration of the Case Crime No. 106 of 1999, though it was registered prior to the submission of the Attestation Form, no intimation was ever given by the petitioner and even admittedly after getting knowledge about the said case and applying for Anticipatory Bail, no intimation has been given by the petitioner with regard to registration of the said case against the petitioner to the authorities concerned. Likewise, when the second case was registered against the petitioner on 06.09.2003, though the petitioner claims that he has intimated orally to the Commandant, NTPC, however, no written intimation has been submitted by the petitioner, which is an admitted position by the petitioner.
It is an obligation on a Government servant that once the criminal case is registered against him, he is duty-bound to intimate to the officers concerned to his department and non-intimation of the registration of the criminal case amounts to misconduct. For the aforesaid allegations, the inquiry was duly conducted in terms of Rule 36 of the CISF Rules, 2001. Due opportunity of hearing was provided to the petitioner at the time of the inquiry proceedings as well as after the conclusion of the inquiry by the Disciplinary Authority. Therefore, there is no procedural illegality in the disciplinary proceedings concluded against the petitioner. The findings recorded by the Inquiry Officer are based on the basis of the statement of witnesses recorded during the inquiry proceedings and there is no material available on record to suggest that the petitioner has ever informed to the Inquiry Officer that he was granted Anticipatory Bail on 13.08.2001 or the order of the Anticipatory Bail was ever communicated to the Inquiry Officer and in this regard, his statement was also recorded during the inquiry proceedings. Even in the said statement, no such averments have been made by the petitioner and he has admitted with regard to the registration of the aforesaid two cases against him in his reply as well as in the statement recorded before the Inquiry Officer and in both the occasions, no intimation with regard to the registration of both the cases have been given by the petitioner at any stage prior to the initiation of the disciplinary proceeding against him. In such view of the matter, learned counsel for the respondents submits that there is no illegality in the impugned orders. Hence, he seeks dismissal of the instant petition.
Having heard the rival submissions so made by learned counsel for the parties, this Court has carefully gone through the record of the case. So far as the concealment of the fact of registration of the criminal case, while filling the Attestation Form on 18.08.1999, from the finding of the Inquiry Officer, it is apparently not established that prior to 18.08.1999, the petitioner was ever having knowledge of the registration of the said case. Unless the petitioner is having knowledge of registration of the criminal case, he is not supposed to inform about the same in the Attestation Form. Therefore, the allegation with regard to the concealment cannot be substantiated against the petitioner. However, it is admitted case of the petitioner that the petitioner came to know about the registration of the said criminal case in the year 2001 itself, when he applied for the Anticipatory Bail, was granted Anticipatory Bail, and pursuant thereto, he has submitted the bail bonds as well. However, despite having knowledge of the aforesaid case, he has not intimated to the department concerned with regard to the registration of the said case against the petitioner after gaining the knowledge of the registration of the said case.
Likewise, with regard to the second charge, i.e., registration of the Case Crime No. 91 of 2003 and non-intimation thereof to the authorities, it is an admitted position on behalf of the petitioner that he has not given any written intimation to the authorities concerned and the claim of the petitioner is that only oral intimation was given to the Commandant, NTPC and when the petitioner was asked for examination of the witnesses in his defense in the inquiry proceedings, he did not ask to examine any witness in his support. Had this fact of oral intimation been correct, he could have examined the Commandant, NTPC Dadri, in his defense with regard to the oral intimation given to him.
In such view of matter, the fact that the two criminal cases were registered against the petitioner and petitioner did not give any intimation with regard to both the aforesaid cases against him to the authorities concerned, the aforesaid charges are fully established. With regard to the factum of arrest, this Court has carefully gone through the statement of the petitioner during the inquiry proceedings and no such averments have been made by the petitioner in his statement with regard to the factum of Anticipatory Bail and contrary thereto, there are the statement of the SHO concerned with regard to the arrest of the petitioner on 24.08.2001, on the basis thereof, the Inquiry Officer has concluded against the petitioner that he was arrested, despite that, he has not intimated about his arrest.
In such circumstances, for want of the aforesaid pleadings and contentions raised before the Inquiry Officer, the findings recorded by the Inquiry Officer cannot be doubted and consequently, this Court do not find any illegality in the impugned orders, as the factum of non-intimation of the both criminal cases against him is fully established.
In such view of the matter, in the considered opinion of this Court, in the light of the aforesaid judgments of the Apex Court, no benefit could be accorded to the petitioner. Accordingly the instant petition is dismissed .