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2011 DIGILAW 334 (JK)

Gh. Rasool Malik v. Union Of India

2011-06-10

Hasnain Massodi

body2011
1. The petitioner appointed as Constable in Central Reserve Police Force vide No. R-II-1/2004 Estt-V dated December, 2005 and allotted Belt No. 065341039 was terminated vide No. 2009-184-EC II dated 05.01.2009 on the ground that on verification of petitioner's character and antecedents, he was reported to have been accused in case FIR No. 211/2003 under Section 147, 354 and 323 RPC. 2. The petitioner aggrieved with his termination order, on 12.01.2009 preferred an appeal before Inspector General of Police, Srinagar. The Appellate Authority upheld the termination order made by Commandant 184 Bn. CRPF and rejected the appeal. 3. The petitioner questions the termination order as also the order of Inspector General of Police, Srinagar in appeal, on the grounds that the charge-sheet alleging commission of offence punishable under Section 147, 354 and 323 RPC having been dismissed by the trial court and the accused acquitted of all the charges, it was no more open to the Commandant 184 Bn. CRPF respondent No. 3 herein, to pass the termination order. The respondent No. 3 is said to have passed the termination order under the provisions of Central Civil Services (temporary service) Rules, 1965, (CCS (TS) Rules for short) unmindful of the fact that the rules had no application to the petitioner's case and that the petitioner's appointment was governed by the terms and conditions incorporated in the appointment offer. The authority of respondent No. 3 to terminate the service of the petitioner is further questioned on the ground that the respondent No.3 was not the appointing authority and lacked power and jurisdiction to terminate the petitioner's service; that the petitioner having been appointed by an officer higher in rank to respondent No. 3, only such officer was competent to terminate petitioner's service. 4. The petitioner's case is that as per the Government of India order (Annexure A) Rule 5(1) of CCS (TS) Rules, 1965 is not applicable in case of a probationer and that were a provision for termination has been specifically made in the letter of appointment, the said provision is to prevail. It is further pleaded that petitioner's termination from service is not a termination simplicitor but casts a stigma on the petitioner and that the petitioner in the said background could not be terminated without a show cause notice and in absence of an opportunity of being heard in the matter. It is further pleaded that petitioner's termination from service is not a termination simplicitor but casts a stigma on the petitioner and that the petitioner in the said background could not be terminated without a show cause notice and in absence of an opportunity of being heard in the matter. The petitioner on the ground that he had completed three years of service on the date, the termination order was made, insists that as on date of termination of service he held the post substantively, he was entitled to safeguards available under article 14, 16 and 311 of the Constitution of India. 5. The writ petition is opposed on the grounds that the petitioner failed to give the information regarding his involvement in case FIR No. 211/2003 in CRPF form (25) verification of character and antecedents, oblivious to the warning that the furnishing false information and suppression of any tactual information in the Verification Roll would be a disqualification and likely to render candidate unfit for employment under the Government. 6. The respondents point out in terms of rule 14 CRPF Rules 1965, soon after enrolment, character, antecedents etc. are to be verified in accordance with the procedure prescribed by the Central Government from time to time and the petitioner when asked to give requisite information in prescribed form, withheld the information as regards his involvement in case FIR No. 211/2003. The respondents refuting the petitioner's claim that the termination order was made by an incompetent officer, plead that in terms of rule 7 (B) CRPF read with Rule 27, 1965, the Commandant is the appointing authority as regards to CT/GD and thus the respondent No. 3 was competent to order termination of the petitioner. The respondents insist that as on verification of character and antecedents, the petitioner was found to be involved in case FIR No. 211/2003 the respondents acted well within their jurisdiction while passing the termination order. 7. Heard and considered. 8. The petitioner after he participated in the selection process for appointment as CT/GD in CRPF was vide No. R-II-1/2005-ESTT-V as offered the post of CT/GD in the Central Reserve Police Force on temporary basis. The offer made to the petitioner set out the terms and conditions of appointment. 7. Heard and considered. 8. The petitioner after he participated in the selection process for appointment as CT/GD in CRPF was vide No. R-II-1/2005-ESTT-V as offered the post of CT/GD in the Central Reserve Police Force on temporary basis. The offer made to the petitioner set out the terms and conditions of appointment. One of the terms and conditions of appointment was that the service would be liable to be terminated at any time on one month's notice during the probation period of two years by the appointing authority. The petitioner accepted the appointment and as part of post appointment formalities, filled form (25) CRPF Rules, but avoided to inform the respondents that a case FIR No. 211/2003 under Section 147, 354 and 323 RPC was registered against the petitioner at the concerned Police Station, while filling up the prescribed format, detailing vital information regarding a person to be recruited. From perusal of the offer of appointment (Annexure A) to the petition reveals that the petitioner at the time he was offered the appointment, was required to fill up the pre-verification form enclosed with the offer and to get it duly signed by the authorities mentioned therein. The petitioner inter alia was required to inform the appointing authority whether he was detained, convicted or involved in any criminal case. The offer of appointment incorporated a warning that furnishing the false information or suppression of factual information in the Verification Roll would be disqualification and render a candidate unfit for employment under the Government. 9. Rule 7(B) Central Reserve Police Rules 1965 provides that the authority to make appointment to the various non gazetted ranks shall be the Commandant. The only exception is in case of Sub Inspector Sobidars in which case prior approval to Deputy Inspector General of Police and the Inspector General respectively is required to be obtained. In terms of Rule (27), the commandant is competent to order dismissal or removal from the service. In view of Rule position there is no force in the argument that as the respondent No. 3 was not the appointing authority he was not competent to order termination of petitioner's service under Rule 5 CCS (TS) Rules 1965. Mere fact that the offer of appointment against the post of CT/GD in CRPF was made by Additional DIGP CRPF does not make Additional DIGP Appointing Authority. Mere fact that the offer of appointment against the post of CT/GD in CRPF was made by Additional DIGP CRPF does not make Additional DIGP Appointing Authority. Even where appointment is made by an officer higher in rank to the officer competent to make the appointment under rules, the appointing authority in terms of rules does not cease to be the authority competent to order dismissal, removal or reduction in rank. 10. The petitioner admittedly while providing the information in the Verification Roll did not mention that he was an accused in case FIR No. 211/2003. The failure on part of the petitioner thus amounted to suppression of factual information and the respondent No. 3 was competent under Rule 5 (1) Central Civil Services (temporary service) 1965 to order termination of the petitioner. 11. In Union of India and ors. v. Sukhen Chandra Das (2008) 17 SCC 125, the writ petitioner was enrolled as Constable on 8.11.91 CRPF. After the appellants initiated the process of verification of the character and antecedents of the respondent from civil authorities as required under CRPF Rules 1965 the District Magistrate-cum-Collector vide his communication dated 03.06.1994 informed the appellants that the respondent alongwith others was accused in case No. 91 Police Station Sonamura under Section 148/149/380 and 436 IPC. The respondent, at the time of enrolment in CRPF, did not disclose the said fact in column No. 12 (a) and (b) of Verification Roll of CRPF. On receipt of the reply from the District Magistrate-cum-Collector, the Commandant 9th Bn CRPF vide order dated 23.06.1994 in exercise of the power under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965 terminated the services of the respondent. The respondent preferred an appeal before the Appellate Authority. The IGP N/S, found no substance in the appeal and by order dated 12.07.1995 rejected the appeal. The writ court allowed the writ petition, challenging to the termination order. The appeal against the order of the writ court also failed. The Apex Court while allowing the appeal and setting aside the Division Bench order dated 23.03.2005 in writ appeal observed: "It is not in dispute that in terms of clause 12 (a) of the CRPF (See Rule 14 (B) Verification Roll (Annexure (P-2) the respondent was under obligation to inform the appellants in regard to the pendency of the criminal case against him. The record shows that at the time of enrolment in the CRPF, it is obligatory upon the candidate to fill up Verification Roll (See Rule 14 (B) of CRPF (Annexure-P2 (Colly.). Para 3 of the Verification Roll mandates if the fact that false information has been furnished of that there has been suppression of by factual information in the Verification Roll comes to notice at any time during the service of a person, his service would be liable to be terminated." Para 12(a) states that the candidate has to give the information if he has ever been arrested, prosecuted, kept under detention or bound down/fined, convicted by a court of law for any offence/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 educational authority/institution. In answer to Para 12 (a) of the Verification Roll submitted by the respondent, he said "No". In terms of Clause 1.12(a) of the Central Reserve Police force Recruitment Manual, 1975 as amended from time to time, as soon as a man has been enrolled, his character, antecedents, qualifications and age shall be verified in accordance with the procedure prescribed by the Central Government from time to time from through the District Magistrate Deputy Commissioner of the District concerned or such other authority as may be deputed by the Central Government. Sub-Para (d) whereof prescribes that if a person is adversely reported upon in the attestation form by the local authorities, his services will be terminated by giving him one month's notice or one month's pay in lieu thereof under CRPF Rule 16 read with Rule 5 of CCS (Temporary Services) Rules, 1965. In the light of the above-stated facts and provisions of rules, the termination order dated 23.06.1994 was passed by the Commandant in purported exercise of power under Rule 5(1) of the CCS (Temporary Services) rules, 1965." 12. The court proceeded to observe: "... On an independent scrutiny of the relevant documents on record as discussed above, we are of the considered view that the order of termination of the respondent recorded by the competent authority is innocuous on its face and purports to be an order of discharge in accordance with the terms and conditions of the appointment of a temporary Government servant. On an independent scrutiny of the relevant documents on record as discussed above, we are of the considered view that the order of termination of the respondent recorded by the competent authority is innocuous on its face and purports to be an order of discharge in accordance with the terms and conditions of the appointment of a temporary Government servant. Such termination is neither punitive nor stagmatic in nature, nor it is, in any event, actuated with any motive. The language of the order clearly and plainly shows that it is termination simplicitor, rightly based under Rule 5(1) of CCS (Temporary Services) Rules, 1965 during the period when the respondent was a temporary employee of CRPF and it does not cast any stigma to the conduct of the respondent. Thus, the finding of the High Court that the order of termination of services of the respondent will cast stigma and could not have been recorded unless the respondent is proceeded in the regular departmental proceedings for the alleged misconduct in our considered view, cannot be sustained..." 13. In the present case as is evident from Verification Roll filled up the petitioner the petitioner in reply to question regarding his prosecution, arrest etc. at any time before his recruitment gave his answer in negative. The answer furnished by the petitioner on verification was found to be incorrect. The failure on part of the petitioner to give the correct information amounted to furnishing false information within the meaning of Central Civil Services Rule 5(1). The respondent No.3 was thus competent to exercise powers under the aforesaid provision and order termination of the petitioner's service. The acquittal of the petitioner at a subsequent stage would be of no help to the petitioner for the simple reason that what is alleged against the petitioner is not whether he had actually committed an offence alleged against him but whether he has withheld a vital information while filling up the Verification Roll. The petitioner continued to be on temporary Government service on the date the order impugned in the petition was passed and thus his service were liable to be terminated under Rule 5(1) CCS (TS) once the conditions laid down therein were satisfied. The petitioner in the circumstances cannot draw support from Raj Kumar v. Union of India and ors. The petitioner continued to be on temporary Government service on the date the order impugned in the petition was passed and thus his service were liable to be terminated under Rule 5(1) CCS (TS) once the conditions laid down therein were satisfied. The petitioner in the circumstances cannot draw support from Raj Kumar v. Union of India and ors. 2009 (1) JKJ[HC] 38, 2009 (II) SLJ 594, moreso, because the facts of the reported case are markedly distinguishable from the facts of the present case. 14. For the reasons discussed above, there is no merit in the writ petition. The petition is accordingly dismissed alongwith connected CMP(s).