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2010 DIGILAW 746 (ALL)

SURENDRA YADAV v. STATE OF U. P.

2010-02-26

RAJIV SHARMA

body2010
JUDGMENT Hon’ble Rajiv Sharma, J.—Heard the learned counsel for the petitioner Sri Vijai Gautam and the learned Standing Counsel for the respondents. 2. This writ petition has been filed for quashing the order dated 7.8.2007 passed by respondent No. 7, Annexure-1 to the writ petition. 3. The facts arising out of the present writ petition are that on the basis of the advertisement published in the Daily Newspaper inviting applications for the post of constables in the Police Department dated 5.9.2006, the petitioner, in pursuance of the aforesaid advertisement, applied for the same and after the physical and medical tests, ultimately the petitioner qualified and was interviewed and subsequently, finally selected by the Selection Committee on 19.11.2006 and was appointed and he joined the duties at Reserve Police Lines, Ghaziabad. A notice for cancellation of appointment of the petitioner was served upon him on 10.8.2007 terminating the services of the petitioner on the ground that he has concealed the fact regarding the criminal proceeding which was against the petitioner in the declaration and the affidavit, therefore, it amounts to concealment of the fact for procuring the appointment. In such a situation after due investigation, it was found that the petitioner has procured the appointment by concealing material fact regarding criminal proceeding. Therefore, the services of the petitioner are hereby terminated. The petitioner aggrieved by the aforesaid order has filed the present writ petition. 4. Sri Vijai Gautam, learned counsel for the petitioner submits that the petitioner was given appointment on the basis of advertisement in the year 2006. A criminal case was registered against the petitioner under Sections 323, 325 and 504 I.P.C. and subsequently, the Chief Judicial Magistrate, Bulandshahr has acquitted the petitioner on all charges by order dated 5.12.1997. A copy of the same has been annexed as Annexure-4 to the writ petition. As the petitioner was acquitted in the year 1997 and from the format or the form of declaration, there is no column in the form of declaration that this fact has to be mentioned regarding any case in which a person was tried and has been acquitted. The Clause-11 of the verification form which was issued to the petitioner and a declaration has been given by the petitioner, there is no requirement of such declaration. The Clause-11 of the verification form which was issued to the petitioner and a declaration has been given by the petitioner, there is no requirement of such declaration. Relevant portion of Clause 11 is being reproduced below : “KYA UMMIDWAR KABHI NYAYALAYA DWARA KISI APARADH ME SIDDHDOSH THAHARAYA GAYA HAI ? YADI UTTAR ‘HAWN’ ME HAI TO DAND TATHA DANDVIDHIPURN VIVARAN DE.————————————" (PRAMAN-PATRA PAR UMMIDWAR HASTAKSHAR KAREGA)" 5. Therefore, in good faith the petitioner has not mentioned the fact of the criminal trial in which the petitioner has already been acquitted in the year 1997. Further learned counsel for the petitioner submits that at the time of passing the order of termination, the petitioner has not been given any notice and opportunity in view of Para 541 of the Police Regulations. Regulation 541 (2) clearly provides that in such circumstances if the appointing authority is of opinion that if the police officer’s services may be dispensed with then a notice and opportunity to that effect and the ground of charge has to be supplied and an opportunity to that effect has to be given. Regulation 541 (2) of the Police Regulations is being reproduced below : “541. (1)............... (2) In any case in which either during or at the end of the period of probation, the Superintendent of Police is of opinion that a recruit is unlikely to make a good police officer he may dispense with his service. Before, however, this is done the recruit must be supplied with specific complaints and grounds on which it is proposed to discharge him and then he should be called upon to show-cause as to why he should not be discharged. The recruit must furnish his representation in writing and it will be duly considered by the Superintendent of Police before passing the orders of discharge.” 6. As no notice and opportunity has been given to the petitioner, therefore, the order is bad and is liable to be quashed. 7. A counter-affidavit has been filed on behalf of the respondents by the Standing Counsel. The only submission made by the learned Standing Counsel is that as the petitioner was involved in a criminal case inspite of the fact that he has been acquitted, a declaration to that effect in the affidavit, was to be given. 7. A counter-affidavit has been filed on behalf of the respondents by the Standing Counsel. The only submission made by the learned Standing Counsel is that as the petitioner was involved in a criminal case inspite of the fact that he has been acquitted, a declaration to that effect in the affidavit, was to be given. If the same has not been given, it amounts to concealment and in such circumstances, if the respondents, after due investigation, have come to the conclusion that this fact has been concealed by the petitioner, therefore, the presumption will be that he has obtained the appointment by concealing the fact regarding the criminal case, though he was acquitted in the year 1997. 8. I have heard the learned counsel for the petitioner and the learned Standing Counsel and perused the record. As the counter-affidavit and rejoinder affidavit have already been exchanged, therefore, the matter is being decided finally with the consent of the parties . 9. As regards the submission made by the petitioner to this effect that as there was no clause regarding the fact that if a person who is going to be appointed on the basis of recruitment, if there was a criminal case in past and he has been acquitted, this fact was to be mentioned in the declaration form. As there was no clause to that effect, therefore, the petitioner in good faith has not declared this fact regarding acquitted of the petitioner in the year 1997, In my opinion if there was no clause to this effect regarding any criminal proceeding in past, then there was no obligation on the part of a person concerned to declare. In my opinion it cannot be held or stated that it was intentional. In case the criminal case was pending and this fact has been concealed by a person for the purpose of getting an appointment, in that case an inference can be drawn that there is concealment of this fact. The order follows an ex parte inquiry and cast an aspersion on the petitioner. 10. The Apex Court in Chandra Prakash Shahi v. State of U.P. and others, 2000 (1) SCC 152 has held that such an order amounts to dismissal, therefore, a notice and opportunity was necessary. It has gone to hold that notice is also required under Para 541 of the Police Regulations. 10. The Apex Court in Chandra Prakash Shahi v. State of U.P. and others, 2000 (1) SCC 152 has held that such an order amounts to dismissal, therefore, a notice and opportunity was necessary. It has gone to hold that notice is also required under Para 541 of the Police Regulations. Recently a Division Bench of this Court has dealt the issue in Paras Nath Pandey v. Director, North Central Zone, Cultural Centre, Allahabad, 2008 (10) ADJ 283 that such order passed by the authority concerned cannot survive. 11. The aforesaid law laid down by learned counsel for the petitioner is not being disputed by learned standing counsel. 12. Further admittedly as the petitioner has been given appointment and he was working on the post, therefore, he was entitled to notice and opportunity. It is an admitted case of the respondents that prior to the order impugned terminating the services of the petitioner, no notice and opportunity has been given to the petitioner. In my opinion if a person is working on the post, a civil right accrues and notice and opportunity is necessary. But as that has not been done then order can be treated to be violative of principles of natural justice. Further as there is no compliance of Regulation 541 (2) of the Police Regulations, therefore, in my opinion, the order passed by the respondent terminating the services of the petitioner dated 7.8.2007, Annexure-1 to the writ petition is not sustainable in law and is hereby quashed. 13. The writ petition is allowed accordingly. 14. It is however, open to the respondents to take any action against the petitioner, if so advised strictly in accordance with law after following the proper procedure as provided in the Police Regulations. 15. No order is passed as to costs. —————