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2008 DIGILAW 775 (CAL)

Jayanta Ghosh v. UNION OF INDIA

2008-08-01

S.P.Talukdar

body2008
JUDGMENT: 1. GRIEVANCE of the petitioner relates to alleged illegal act on the part of the respondent No. 4 in issuing the impugned order of termination dated 10th day of July, 2007. The petitioner by filing the present application under Article 226 of the Constitution sought for direction upon the respondents-authorities to withdraw/cancel the said order of termination as well as for issuance of direction upon the said authority for not giving effect to the impugned order dated 10th July, 2007. 2. THE backdrop of the present case may briefly be summed up as follows: -The petitioner was appointed in the post of Constable in Central Reserve police Force by letter of appointment dated 14th day of January, 2006. He was directed to join in the said post on 25th January, 2006. According to Rule 16 of the Central Reserve Police Force Rules, 1955, the enrolment of the petitioner in the said Force is for a period of three years and during this period of engagement, he is liable to be terminated at any time on one month's notice by the Appointing authority and those who are not given substantive status even after the said period, are to be considered for quasi-permanent assignment under provisions of the Central Civil Service (Temporary Service) Rules, 1965. The petitioner having completed only one year six months in the said post, he could not acquire the permanent or quasi-permanent status and had been considered as temporary servant under the said Rule 16 of the Central Reserve Police Force, 1955. The petitioner to his utter shock and surprise was served with a notice of termination issued by the Additional Deputy Inspector General, CRPF, Group Centre, durgapur, being respondent No. 5 herein. He was given one month's notice and after expiry of one month, his service was to be terminated on or from 4th July, 2007. Such order of termination though apparently looks termination simpliciter, is couched with stigma. It was a penal order. The petitioner having not been given an opportunity of hearing, the said order of termination is illegal and liable to be quashed. In the circumstances, the petitioner approached this court for redressal of his grievances. Mr. Such order of termination though apparently looks termination simpliciter, is couched with stigma. It was a penal order. The petitioner having not been given an opportunity of hearing, the said order of termination is illegal and liable to be quashed. In the circumstances, the petitioner approached this court for redressal of his grievances. Mr. Kishore Dutta, appearing as learned Counsel for the petitioner, inviting attention of the court to the relevant correspondence relating to offer of appointment for the post of Constable (GD) in CRPF submitted that the same requires close scrutiny for proper appreciation of the grievances raised in the present application. Paragraph-2 of such correspondence being annexure-"p1" at page 30 is as follows: - "the appointment is purely temporary, and is subject to verification of your educational and caste certificates produced by you. Further, in case of your claim for belonging to SC, ST, OBC communities, your appointment is provisional and subject to its verification. In the event of your claim being found false during verification and found that you had furnished false, fraudulent certificates in order to get the appointment in CRPF, your service are liable to be terminated forthwith, without assigning any reasons, and without prejudice to such further action as may be taken under the provisions of Indian Penal Code. The appointment is also subject to the condition that there is no criminal or civil case pending against you and your name does not exist in wanted persons list. " 3. MR. Dutta thereafter inviting attention of the court to the notice for termination of service dated 4th June, 2007 submitted that there is more than what meets the eyes. Such document being annexure "p-2", at page 32, is the notice of termination from service from 4th July, 2007 or any date thereafter. 4. THIS was followed by the authorities issuing the office order relating to termination of service being annexture-"p-3" at page 33. By the said order, the service of the petitioner was terminated with effect from 10th July, 2007 (AN) (due to expiry of 30 days notice period ). Mr. Dutta on behalf of the writ petitioner submitted that when the termination is preceded by an enquiry, the authority concerned must give a proper opportunity of hearing to the writ petitioner. Denial of such opportunity amounts to violation of the principle of natural justice. 5. Mr. Dutta on behalf of the writ petitioner submitted that when the termination is preceded by an enquiry, the authority concerned must give a proper opportunity of hearing to the writ petitioner. Denial of such opportunity amounts to violation of the principle of natural justice. 5. REFERRING to the decision in the case of Samsher Singh vs. State of Punjab and Anr., reported in (1974) 2 SCC 831 , it was submitted that the fact of holding an enquiry is not always conclusive. What is decisive is whether the order is really by way of punishment. The Apex Court in the said case held that if there is an enquiry, the facts and circumstances of the case will be looked into in order to find out whether the order is one of dismissal in substance. It is important to note that the Apex Court further held that a preliminary enquiry to satisfy that there is reason to dispense with the services of a temporary employee has been held not to attract Article 311. But a statement in the order of termination that the temporary servant is undesirable has been held to import an element of punishment. 6. THERE is no doubt that the substance of the order and not the form would be decisive. Mr. Dutta referred to the decision in the case of Regional Manager, Bank of Baroda vs. Presiding Officer, Central Govt. Industrial Tribunal and another, reported in (1999) 2 SCC 247 while submitting that suppression of material fact may not be so grave as to immediately require the petitioner to be terminated from service. 7. I am afraid, Mr. Dutta sought to place reliance on such observation without appreciating it in the context of the factual backdrop of the said case. If the writ petitioner got an appointment suppressing material fact in the relevant form, which was required to be filled up, such suppression would amount to misrepresentation and fraud and create no equity in his favour nor any estoppel against the authority. 8. REFERENCE was further made to the decision in the case of Kendriya vidyalaya Sangathan and Ors. vs. Ram Ratan Yadav, reported in (2003) 3 SCC 437 while submitting that suppression of fact of pendency of the criminal case by itself may not be a sufficient ground for terminating the service of the writ petitioner. 8. REFERENCE was further made to the decision in the case of Kendriya vidyalaya Sangathan and Ors. vs. Ram Ratan Yadav, reported in (2003) 3 SCC 437 while submitting that suppression of fact of pendency of the criminal case by itself may not be a sufficient ground for terminating the service of the writ petitioner. The Apex Court in the said case observed that a candidate having suppressed material information and/or giving false information cannot claim right to continue in service. In the context of the facts of the said case, the Apex court observed that the purpose of seeking information is not to find out either the nature or gravity of the offence or the result of a criminal case ultimately. The information is sought with a view to judge the character and antecedents of the concern person to continue in service or not. 9. MR. Sardar Amjad Ali, as learned Counsel for the respondent-authority produced copies of certain documents at the time of hearing. He submitted that enquiry revealed that the writ petitioner was involved in connection with Katwa p. S. Case No. 155 of 2002 dated 20th November, 2002 under sections 148/149/325/326/427/379 I. P. C. The copy of the Verification Roll furnished by the petitioner was also produced by the respondent-authority. Column 12 (a) and (b) in the said form are as follows: - " (a) Have you ever been arrested, prosecuted, kept under detention or bound down/fined, convicted by a court of law for any offence or debarred/disqualified by any Public Service Commission from appearing at its examination selections, or debarred from taking any examination/rusticated by any University or any other education authority/institution?" " (b) Is any case pending against you in any court of law, University or any other education authority/institution at the time of filling up this verification Roll?" 10. IT appears that the petitioner gave "no" as an answer to both queries. It thus cannot be denied that there had been conscious and wilful suppression of material fact. Significantly enough, the "offer of appointment" makes the appointment of the petitioner subject to the condition that there is no criminal or civil case pending against him. IT appears that the petitioner gave "no" as an answer to both queries. It thus cannot be denied that there had been conscious and wilful suppression of material fact. Significantly enough, the "offer of appointment" makes the appointment of the petitioner subject to the condition that there is no criminal or civil case pending against him. It follows there from that whatever appointment was given to the petitioner, strictly speaking, could have had hardly any existence in the eyes of law since a criminal case, as referred to earlier, was very much pending at the time of his appointment. 11. ACCORDING to Mr. Dutta, being preceded by an enquiry, the order of termination must be held to be penal. Very strange, indeed. In absence of any enquiry whatsoever, action on the part of the authority will be a subject matter of criticism and will be characterized as arbitrary and whimsical. Absence of enquiry would make the order of termination suffer from non-application of mind. The enquiry as was done in the case of the writ petitioner is in the nature of a fact-finding effort. Without such effort, it is inconceivable that a person can be given an appointment in any civil post, far less in the post of a Constable in central Reserve Police Force. There is no reference of such enquiry in the order of termination. Such order does not reflect anything, which could justify it to be classified as penal in nature. An attempt appears to have been made on behalf of the writ petitioner to read something more than what meets the eyes in such order of termination. 12. IN my considered opinion, there is hardly any mystery to be unveiled. The petitioner suppressed a material fact " may be, out of his over anxiety to get an employment. But this, by itself does not dilute the nature of the offence. Professor Gunar Myrdal described our society as a soft one. There are occasions for us to condone laches, even of serious nature, on the plea that justice deserves to be tempered with compassion. True, if every saint has a past, every sinner has a future. But excess of leniency can often lead to demolition of the values of life. Our society is already paying a very heavy price for this. The fact that we consider "honesty" as a virtue indicates the inherent weakness in our system. True, if every saint has a past, every sinner has a future. But excess of leniency can often lead to demolition of the values of life. Our society is already paying a very heavy price for this. The fact that we consider "honesty" as a virtue indicates the inherent weakness in our system. It is not understood as to why we cannot take it as normal like the sweat of body. It is "dishonesty" which is bad odour of the sweat which is to be condemned. For a person joining a government service, it is all the more important. Initial vice may persist. When thousands of unemployed youths are standing in the queue for some sort of employment, there is hardly any reason for showing undue sympathy to the writ petitioner. In the factual backdrop of the present case, it cannot be said that the order of termination is not a termination simpliciter. Having regard to the nature of the service, the condition as reflected in the offer of the appointment, I am of the opinion that the writ petitioner cannot be permitted to raise any voice of protest. The grievances as ventilated in the application do not seem to have any rational justification. Accordingly, the present writ application being W. P. No. 17283 (W)of 2007 fails and be dismissed. There is no order as to costs.