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2011 DIGILAW 480 (HP)

Nand Lal Bhardwaj v. State of Himachal Pradesh

2011-02-21

RAJIV SHARMA

body2011
JUDGMENT : Rajiv Sharma, Judge. Material facts necessary for adjudication of this petition are that in sequel to the interviews held with effect from 21.4.2003 to 26.4.2003, the petitioner was appointed as Shashtri in the pay-scale of ` 5000-8100 vide office order dated 18th September, 2003. Petitioner’s services were terminated vide annexure A-1, dated 29th October, 2004. 2. Mr. P.P. Chauhan, learned counsel for the petitioner has strenuously argued that his client belongs to I.R.D.P. category and has been rightly considered against the same pursuant to which he has been appointed as Shashtri on 18th September, 2003. He also contended that regular inquiry was required to be held against the petitioner before the issuance of Annexure A-1, dated 29th October, 2004. 3. Mr. P.M. Negi, learned Deputy Advocate General has vehemently argued that the services of the petitioner have been terminated in view of the terms and conditions of appointment letter issued vide office order dated 18th September, 2003. He has relied upon condition Nos. 1, 13 and 20. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. Petitioner has relied upon I.R.D.P. certificate issued vide Annexure A-4, dated 8th March, 2003. This certificate has been issued in the name of his brother, Shri Udi Ram son of Shri Chet Ram. Petitioner has not been issued any I.R.D.P. certificate separately. The Pradhan of Gram Panchayat has also issued certificate vide Annexure A-5. However, this certificate does not contain any date. The petitioner has also relied upon the affidavit dated 9th September, 2003 and copy of Pariwar Register, Ex.P-7. However, in this document (Ex.P-7) also, no date has been mentioned. 6. The case of the petitioner precisely is that his family was joint, and I.R.D.P. certificate was thus, issued in the name of Shri Udi Ram. The respondent-State on the basis of condition No.20 has got the certificate verified from the Block Development Officer concerned. The Block Development Officer as per Annexure A-2 has submitted the report to the Deputy Director, Education in the month of May, 2004. He has specifically stated that the certificate has been issued in the name of Udi Ram, petitioner’s brother. He has also stated that Shri Udi Ram was living separately with his mother. His family consists of his wife and two children. The name of Shri Nand Lal was entered separately. He has specifically stated that the certificate has been issued in the name of Udi Ram, petitioner’s brother. He has also stated that Shri Udi Ram was living separately with his mother. His family consists of his wife and two children. The name of Shri Nand Lal was entered separately. The certificate is valid only for a period of six months. In the instant case, the certificate has been issued only in the name of Shri Udi Ram, brother of the petitioner. Shri Udi Ram as per Annexure A-2 is living separately from his brother, Shri Nand Lal. Thus, the petitioner could not seek public employment on the basis of Annexure A-4. Rather he has usurped the post which was meant for I.R.D.P. category candidate. The certificate issued by the Pradhan does not bear any date. The interviews were held, as is evident from Annexure A-1 with effect from 21st April, 2003 to 26th April, 2003. The affidavit sworn by the petitioner is dated 9th September, 2003. This also cannot be considered. The copy of Pariwar Register of Gram Panchayat, Kalind does not bear any date. Thus, Annexures A-5 to A-7 make it abundantly clear that petitioner does not belong to I.R.D.P. category and has wrongly claimed the public employment under this category. 7. Now the Court will advert to the fact whether the services of the petitioner have been legally terminated or not. The appointment of the petitioner was on temporary basis and his permanent absorption to the cadre was subject to availability of permanent posts and his work and conduct having been found satisfactory. The candidate was also required as per condition No.13 to produce certificate that he belongs to I.R.D.P. category, issued by the Block Development Officer of the area concerned. The petitioner has failed to produce any certificate that he belongs to I.R.D.P. category except relying upon the certificate issued to his brother, i.e. Annexure A-4. The certificate has been issued in favour of his brother, Shri Udi Ram. It will be apt at this stage to produce condition No.20 of the appointment letter, which reads thus:- “20. The petitioner has failed to produce any certificate that he belongs to I.R.D.P. category except relying upon the certificate issued to his brother, i.e. Annexure A-4. The certificate has been issued in favour of his brother, Shri Udi Ram. It will be apt at this stage to produce condition No.20 of the appointment letter, which reads thus:- “20. In case any of the certificates produced by the candidate is found not genuine/false or the information furnished is found wrong or some facts are found to have been concealed at any stage later on, his/her services will be liable to be terminated without notice under the rules.” 8. Thus, it is evident that in case any of the certificates produced by the candidate is found not genuine/false or the information furnished by him is found wrong or some facts are found to have been concealed at any stage later on, his services were liable to be terminated under the Rules. In the instant case, the petitioner has sought appointment on the basis of certificate which has been issued to his brother. Petitioner does not belong to I.R.D.P. category. His whole case is belied by Annexures A-5 to A-7. His services were liable to be terminated even without notice under condition No.20 of the appointment letter dated 18th September, 2003. The appointment of petitioner as per condition No.1 was temporary. His services have rightly been terminated by invoking to the provisions of Section 5(1) of the Central Civil Services (Temporary Services) Rules, 1965. The order Annexure A-1, dated 29.10.2001 is neither penal nor stigmatic. The Court is of the considered opinion that in view of the observations made hereinabove, no separate inquiry was required to be held. The termination of the petitioner is as per terms and conditions contained in the appointment letter and on the basis of the same it is innocuous. The petitioner has occupied the post which was the post to be occupied by a person belonging to I.R.D.P. category. The learned Himachal Pradesh Administrative Tribunal had granted interim order to the petitioner on 29.12.2004 despite his services having been terminated vide office order date 29th October, 2004. The learned Tribunal has granted the main relief at the interim stage to which the petitioner may be entitled at the time of final hearing. The learned Tribunal has not even waited the reply to be filed by the respondent-State. The learned Tribunal has granted the main relief at the interim stage to which the petitioner may be entitled at the time of final hearing. The learned Tribunal has not even waited the reply to be filed by the respondent-State. The reply is dated 28th February, 2005. Mr. P.P. Chauhan, learned counsel for the petitioner has strenuously argued that his client had been working as Shashtri since 18th September, 2003 continuously, therefore, he may be permitted to continue to discharge his duties as such. 9. Their Lordships of Hon’ble Supreme Court in Kendriya Vidyalaya Sangathan and others versus Ram Ratan Yadav, (2003) 3 SCC 437 have held that suppression of material information and making false statement has a clear bearing on the character and antecedents of respondent in relation to his continuance in service. A candidate having suppressed material information and/or giving false information cannot claim right to continue in service. The employer having regard to the nature of the employment and all other aspects had the discretion to terminate his services, which is made expressly clear in para 9 of the offer of appointment. Their Lordships have held as under (paras 11 and 12):-”It is not in dispute that a criminal case registered under Sections 323, 341, 294, 506-B read with Section 34 IPC was pending on the date when the respondent filled the attestation form. Hence, the information given by the respondent as against column nos. 12 and 13 as "No" is plainly suppression of material information and it is also a false statement. Admittedly, the respondent is holder of B.A., B.Ed, and M.Ed, degrees. Assuming even his medium of instruction was Hindi throughout, no prudent man can accept that he did not study English language at all at any stage of his education. It is also not the case of the respondent that he did not study English at all. if he could understand column nos. 1-11 correctly in the same attestation form, it is difficult to accept his version that he could not correctly understand the contents of column nos. 12 and 13. Even otherwise, if he could not correctly understand certain English words, in the ordinary course he could have certainly taken help of somebody. if he could understand column nos. 1-11 correctly in the same attestation form, it is difficult to accept his version that he could not correctly understand the contents of column nos. 12 and 13. Even otherwise, if he could not correctly understand certain English words, in the ordinary course he could have certainly taken help of somebody. This being the position, the Tribunal was right in rejecting the contention of the respondent and the High Court committed a manifest error in accepting the contention that because the medium of instruction of respondent was Hindi, he could not understand the contents of column nos. 12 and 13. It is not the case that column nos. 12 and 13 are left blank. The respondent could not have said "no" as against column Nos. 12 and 13 without understanding the contents. Subsequent withdrawal of criminal case registered against the respondent or the nature of offences, in our opinion, were not material. The requirement of filling column Nos. 12 and 13 of the attestation form was for the purpose of verification of character and antecedents of the respondent as on the date of filing and attestation of the form. Suppression of material information and making a false statement has a clear bearing on the character and antecedents of the respondent in relation to his continuance in service. The object of requiring information in columns 12 and 13 of the attestation form and certification thereafter by the candidate was to ascertain and verify the character and antecedents to judge his suitability to continue in service. A candidate having suppressed material information and/or giving false information cannot-claim right to continue in service. The employer having regard to the nature of the employment and all other aspects had discretion to terminate his services, which is made expressly clear in para 9 of the offer of appointment. The purpose of seeking information as per columns 12 and 13 was not to find out either the nature or gravity of the offence or the result of a criminal case ultimately. The information in the said columns was sought with a view to judge the character and antecedents of the respondent to continue in service or not. The High Court, in our view, has failed to see this aspect of the matter. The information in the said columns was sought with a view to judge the character and antecedents of the respondent to continue in service or not. The High Court, in our view, has failed to see this aspect of the matter. It went wrong in saying that the criminal case had been subsequently withdrawn and that the offences, in which the respondent was alleged to have been involved, were also not of serious nature. In the present case the respondent was to serve as a Physical Education Teacher in Kendriya Vidyalaya. The character, conduct and antecedent of a teacher will have some impact on the minds of the students of impressionable age. The appellants having considered all the aspects passed the order of dismissal of the respondent from service. The Tribunal after due consideration rightly recorded a finding of fact in upholding the order of dismissal passed by the appellants. The high Court was clearly in error in upsetting the order of the Tribunal. The High Court was again not right in taking note of the withdrawal of the case by the State Government and that the case was not of a serious nature to set aside the order of the Tribunal on that ground as well. The respondent accepted the offer of appointment subject to the terms and conditions mentioned therein with his eyes wide open. Para 9 of the said memorandum extracted above in clear terms kept the respondent informed that the suppression of any information may lead to dismissal from service. In the attestation form, the respondent has certified that the information given by him is correct and complete to the best of his knowledge and belief; if he could not understand the contents of column Nos. 12 and 13, he could not certify so. Having certified that the information given by him is correct and complete, his version cannot be accepted. The order of termination of services clearly shows that there has been due consideration of various aspects. In this view, the argument of the learned counsel for the respondent that as per para 9 of the memorandum, the termination of service was not automatic, cannot be accepted.” 10. The order of termination of services clearly shows that there has been due consideration of various aspects. In this view, the argument of the learned counsel for the respondent that as per para 9 of the memorandum, the termination of service was not automatic, cannot be accepted.” 10. Similarly, in Union of India and others versus Bipad Bhanjan Gayen, (2008) 11 SCC 314 their Lordships have held that when on verification of the character and antecedents, it was found that the petitioner had furnished wrong information, the services could be terminated during probation period and as the termination was neither stigmatic nor punitive, the question of natural justice does not arise. Their Lordships of Hon’ble Supreme Court have held as under (paras 9, 10 and 13):-“It is the admitted case that the respondent was still under probation at the time his services had been terminated. It is also apparent from the record that the respondent had been given appointment on probation subject to verification of the facts given in the attestation form. To our mind, therefore, if an enquiry revealed that the facts given were wrong, the appellant was at liberty to dispense with the services of the respondent as the question of any stigma and penal consequences at this stage would not arise. It bears repetition that what has led to the termination of service of the respondent is not his involvement in the two cases which were then pending, and in which he had been discharged subsequently, but the fact that he had withheld relevant information while filling in the attestation form. We are further of the opinion that an employment as a Police Officer pre-supposes a higher level of integrity as such a person is expected to uphold the law, and on the contrary, such a service born in deceit and subterfuge cannot be tolerated. More recently in R.Radhakrishnan vs. Director General of Police & Ors. (2008) 1 SCC 660 was a case of withholding of relevant information in the application form by a person seeking appointment as a fireman and this is what the Court had to say: "10. Indisputably, the appellant intended to obtain appointment in a uniformed service. The standard expected of a person intended to serve in such a service is different from the one of a person who intended to serve in other services. Indisputably, the appellant intended to obtain appointment in a uniformed service. The standard expected of a person intended to serve in such a service is different from the one of a person who intended to serve in other services. Application for appointment and the verification roll were both in Hindi as also in English. He, therefore, knew and understood the implication of his statement or omission to disclose a vital information. The fact that in the event such a disclosure had been made, the authority could have verified his character as also suitability of the appointment is not in dispute. It is also not in dispute that the persons who had not made such disclosure and were, thus, similar situated had not been appointed." We find that the observations in the above cited case are fully applicable to the present matter as well. We are of the opinion that it was a deliberate attempt on the part of the respondent to withhold relevant information and it is this omission which has led to the termination of his service during the probation period. The question of any penal consequences or a reading of the principles of natural justice in such a situation cannot be countenanced. The mere fact that the respondent has been subsequently discharged in the criminal cases will not in any way absolve him of his liability to have filled in the attestation form correctly and accurately as on the date he had done so. We accordingly allow the appeal, set aside the impugned judgments and dismiss the writ petition.” 11. Their Lordships of the Hon’ble Supreme Court in Union of India and others versus Sukhen Chandra Das, (2008) 17 SCC 125 have held as under (paras 9, 11, 12 and 14):- “The record shows that at the time of enrolment in CRPF, it is obligatory upon the candidate to fill up the Verification Roll [see Rule 14(B)] of CRPF [Annexure P-2 (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." 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 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 the Central Civil Services (Temporary Services) Rules, 1965. In the light of the above stated facts and provisions of the Rules, the termination order dated 23-6-1994 was passed by the Commandant in purported exercise of power under Rule 5(1) of the Central Civil Services (Temporary Services) Rules, 1965. The order of the appellate authority dated 12-7-1995 marked Annexure P-3 reveals that the grievance of the respondent was that the termination order was served on him without any show-cause notice of opportunity which would amount to breach of natural justice. He also contended that a false case was registered against him in Tripura. 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 stigmatic in nature, nor is it in any event, actuated with any motive. Such termination is neither punitive nor stigmatic in nature, nor is it in any event, actuated with any motive. The language of the order clearly and plainly shows that it is termination simpliciter, rightly based under Rule 5(1) of the Central Civil Services (Temporary Services) Rules, 1965 during the period when the respondent was a temporary employee of CRPF and it does not cast any stigma on 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. The decisions relied upon by the High Court in support of its order are not applicable in the facts and circumstances of the case in hand.” 12. Their Lordships of Hon’ble Supreme Court in M.S. Patil (Dr.) versus Gulbarga University and others, (2010) 10, SCC 63 have held as under (paras 2 and 15 to 20):- “The manner in which the case has progressed to reach the present stage may be stated thus. On 30-3-1992, Gulbarga University, Gulbarga invited applications for appointment to different posts. One of the advertised posts was of Reader in Kannada. In the remarks column of the notification, it was clearly shown as reserved for Group B category. It needs to be stated here that a plain copy of the notification is enclosed with the paper book as part of Annexure P-1. In the remarks column of the enclosed copy, the letters “GM” are shown against the post in question, indicating that it was open to the general merit category. In order to show that it was incorrect Mr. L.R. Singh, counsel for Respondent No.2 produced before us a xerox copy of the notification from which it clearly appears that the post was reserved for a candidate of Group B category. Thus, confronted, the lame plea on behalf of the appellant was that the mistake in the copy (Annexure P-1) was due to a typing error. We do not wish to proceed any further in the matter except to say that a typing error materially affecting the facts of the case to the benefit of the party committing the mistake has to be viewed with a good deal of suspicion. We do not wish to proceed any further in the matter except to say that a typing error materially affecting the facts of the case to the benefit of the party committing the mistake has to be viewed with a good deal of suspicion. Once the facts of the case are narrated, there remains hardly anything to adjudicate upon. The facts of the case lead to only one conclusion that the appellant was wrongly appointed to a post that was reserved for Group B category. The High Court has also found that the appellant’s selection for appointment to the post was tainted by the participation of the Head of the Department of Kannada, who was related to him, in the selection process. In those facts and circumstances, all that is needed is to dismiss the appeal without further ado. But at this stage once again a strong appeal is made to let the appellant continue on the post where he has already worked for over 17 years. Mr. Patil, learned Senior Counsel, appearing for the appellant, submitted that throwing him out after more than 17 years would be hard and unfair to him since now he cannot even go back to the college where he worked as Lecturer and from where he had resigned to join to this post. We are unimpressed. In service law there is no place for the concepts of adverse possession or holding over. Helped by some University authorities and the gratuitous circumstances of the interim orders passed by the Court and the delay in final disposal of the matter, the appellant has been occupying the post, for all these years that lawfully belonged to someone else. The equitable considerations are, thus, actually against him rather than in his favour. The matter can also be looked at from a slightly different angle. It is noted above how the appellant was able to secure the appointment and how he managed to continue on the post. By notification dated 13-8-2004, the appellant was discharged from the service of the University on the post of Reader in Kannada but was asked to continue on ad hoc basis until the appointment of the new incumbent to the post. By notification dated 13-8-2004, the appellant was discharged from the service of the University on the post of Reader in Kannada but was asked to continue on ad hoc basis until the appointment of the new incumbent to the post. His position is, thus, only ad hoc till the appointment of the new incumbent and in that position he is continuing on the basis of the direction of this Court to maintain status quo. We see no reason to continue this ad hoc arrangement any further and we do not wish to stand any longer in the way of the post being filled up on a regular basis. Since the matter has become very old, it would not be reasonable for the University to fill up the post on the basis of the notification issued in the year 1993. The University may, therefore, issue a fresh notification to fill up the post. The process of selection and appointment on the basis of the fresh notification should be completed within six months from today. In the result, the appeal is dismissed with costs, quantified at `50,000 (Rupees fifty thousand only).” 13. In the case in hand, the petitioner had been occupying the post which lawfully belonged to somebody else. 14. Their Lordships of Hon’ble Supreme Court in Daya Shankar Yadav vs. Union of India & Ors., 2010(12) SCALE 477 have held that the candidate who furnishes false certificate, his services are liable to be terminated. Their Lordships have held as under (paras 9 and 10):-“When an employee or a prospective employee declares in a verification form, answers to the queries relating to character and antecedents, the verification thereof can therefore lead to any of the following consequences: (a) If the declarant has answered the questions in the affirmative and furnished the details of any criminal case (wherein he was convicted or acquitted by giving benefit of doubt for want of evidence), the employer may refuse to offer him employment (or if already employed on probation, discharge him from service), if he is found to be unfit having regard to the nature and gravity of the offence/crime in which he was involved. (b) On the other hand, if the employer finds that the criminal case disclosed by the declarant related to offences which were technical, or of a nature that would not affect the declarant’s fitness for employment, or where the declarant had been honorably acquitted and exonerated, the employer may ignore the fact that the declarant had been prosecuted in a criminal case and proceed to appoint him or continue him in employment. (c) Where the declarant has answered the questions in the negative and on verification it is found that the answers were false, the employer may refuse to employ the declarant (or discharge him, if already employed), even if the declarant had been cleared of the charges or is acquitted. This is because when there is suppression or nondisclosure of material information bearing on his character, that itself becomes a reason for not employing the declarant. (d) Where the attestation form or verification form does not contain proper or adequate queries requiring the declarant to disclose his involvement in any criminal proceedings, or where the candidate was unaware of initiation of criminal proceedings when he gave the declarations in the verification roll/attestation form, then the candidate cannot be found fault with, for not furnishing the relevant information. But if the employer by other means (say police verification or complaints etc.) learns about the involvement of the declarant, the employer can have recourse to courses (a) or (b) above. Thus an employee on probation can be discharged from service or a prospective employee may be refused employment: (i) on the ground of unsatisfactory antecedents and character, disclosed from his conviction in a criminal case, or his involvement in a criminal offence (even if he was acquitted on technical grounds or by giving benefit of doubt) or other conduct (like copying in examination) or rustication or suspension or debarment from college etc.; and (ii) on the ground of suppression of material information or making false statement in reply to queries relating to prosecution or conviction for an criminal offence (even if he was ultimately acquitted in the criminal case). This ground is distinct from the ground of previous antecedents and character, as it shows a current dubious conduct and absence of character at the time of making the declaration, thereby making him unsuitable for the post.” 15. This ground is distinct from the ground of previous antecedents and character, as it shows a current dubious conduct and absence of character at the time of making the declaration, thereby making him unsuitable for the post.” 15. Accordingly, in view of the observations made hereinabove and the definitive law laid down by their Lordships of Hon’ble Supreme Court, there is no merit in this petition and the same is dismissed, so also the pending application(s), if any. The petitioner is also burdened with costs, quantified at ` 5,000/- (rupees five thousand only).