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2012 DIGILAW 57 (CAL)

Bhim Jadav v. UNION OF INDIA

2012-01-18

HARISH TANDAN

body2012
JUDGMENT HARISH TANDON,J 1. THE petitioner has assailed the order of removal passed by the Additional Inspector General of Police CRPF, Durgapur on 7.4.1999 which was affirmed in departmental appeal. The petitioner was appointed as constable in the Central Reserve Police Force on 22.9.1997 and was posted in the office of the Additional Deputy Inspector General, Group Central Reserve Police Force Rampur. At the time of appointment, in the verification roll the petitioner stated that there is no criminal case pending against him. After coming to know that there was a criminal case pending against the petitioner which has been suppressed in the said verification roll. Subsequently the mandamus of charges containing the statement of article of charge, mutation of misconduct, list of documents and the list of witnesses were served upon the petitioner. An enquiry officer was also appointed for the purpose of making enquiry as to the charges framed against the petitioner. The enquiry authority after completion of the enquiry submitted the enquiry report wherein the petitioner was found guilty of the suppression of fact relating to the pendency of the criminal case at the time of appointment. The disciplinary authority also found the petitioner being guilty of misconduct by suppressing the factum of criminal case in the verification roll and inflicted the punishment of removal from service. The appellate authority also did not find any ground for interference in the order of the disciplinary authority and ultimately dismissed the said appeal. 2. INITIALLY the petitioner challenged the aforesaid orders before the high court at Allahabad in writ jurisdiction which was allowed by the Single Bench but subsequently the Division Bench set aside the said order for want of territorial jurisdiction. 3. BY filing the instant writ petition the petitioner has assailed the order of the disciplinary authority which stood affirmed by the appellate authority before this court. 4. ALTHOUGH various grounds are taken in the instant writ petition to thwart the order of punishment but at the time of hearing a point is taken by the petitioner that Rule 27 of the Central Reserve Police Force Rules 1955 provides that the order of removal or dismissal from service in case of a constable and other enrolled members can only be passed by the Commandant. It is further submitted that the order impugned having passed by the Additional Deputy Inspector General is therefore bad. It is further submitted that the order impugned having passed by the Additional Deputy Inspector General is therefore bad. It is submitted that the petitioner was minor at the time of lodging the complaint which gave rise to a criminal proceeding and the petitioner was not aware of the pendency of the said criminal case at the time of furnishing information in the verification roll. It is further submitted that mere pendency of the criminal case does not disentitle the petitioner from being appointed as constable and placed reliance upon a Division Bench judgment of this court in case of Mohan Kumar Halder Vs. State of West Bengal and Ors. reported in 2010 (2) CHN 312 (Cal). Lastly it is submitted that the punishment awarded by the authorities is disproportionate. 5. PER contra, the respondent submits that the verification roll is prescribed by the statutory rule which provides various antecedents to be included, one of which is whether any criminal case is pending against the delinquent which has been answered by the petitioner in negative. It is strenuously argued that the article of charge was framed on the ground of misconduct as the petitioner gave false information. The suppression of material fact is a serious charge in a disciplined force and placed reliance upon a judgment of the supreme court in case of Kendriya Vidyalaya Sangathan and Ors. Vs. Ram Ratan Yadav reported in (2003) 3 SCC 437 . It is further submitted that the authorities can pass an order for dismissal or removal if the delinquent is guilty of misconduct and placed reliance upon a judgment of the apex court in case of Union of India and Ors. Vs. Ghulam Mohd. Bhat reported in (2005) 13 SCC 228 . It is submitted that of there is any disqualification as on the date of appointment, subsequent removal of such disqualification does not entitle the person to claim appointment and placed reliance upon the judgment of the supreme Court in case of the District Collector and Chairman Vizianagaram (social Welfare Residential School Society) Vizianagaram and Anr. Vs. M. Tripurasundari Devi reported in 1990 (4) SLR 237. Lastly it is submitted that the authority who is higher in rank than the appointing authority can also terminate the service and placed reliance upon the judgment of the apex court in case of Kanta Devi Vs. Union of India and Anr. Vs. M. Tripurasundari Devi reported in 1990 (4) SLR 237. Lastly it is submitted that the authority who is higher in rank than the appointing authority can also terminate the service and placed reliance upon the judgment of the apex court in case of Kanta Devi Vs. Union of India and Anr. reported in (2003) 4 SCC 753 . 6. HAVING considered the respective submissions it is undisputed that the petitioner at the time of providing the list of antecedents in a prescribed verification roll stated that there is no criminal case pending against him. It is also undisputed that a criminal case was pending against the petitioner at the time of furnishing information of his character and antecedents for appointment under the disciplined force i.e. the Central Reserve Police Force. The said verification rolls are prescribed in Form 25 in terms of Rule 14 B of the Central Reserve Police Force Rules 1955 which was framed in exercise of powers conferred under section 18 of the Central Reserve Police Force Act 1949. The said prescribed verification roll contains a warning that the furnishing of false information or suppression of any factual information would render the appointment disqualified and the delinquent may be detained convicted and/or debarred. It is further provided that if any false information is furnished or if there is any suppression of factual information which subsequently comes to the notice during the period of service the service can also be terminated in addition to prosecution and/or conviction for such information. 7. THUS, there is no doubt that the suppression of material information or furnishing the false information amounts to a misconduct and can entail the removal or dismissal from service of the enrolled members of the Force. The apex court in case of Kendriya Vidyalaya Sangathan (supra) was also considering a case of suppression of information and / or giving false information that there is no criminal case pending held that the employee cannot claim any right to continue his service in these words : "11. 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 columns 12 and 13 as "No" is plainly suppression of material information and it is also a false statement. Hence, the information given by the respondent as against columns 12 and 13 as "No" is plainly suppression of material information and it is also a false statement. Admittedly, the respondent is holder of BA, BEd and MEd 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 columns 1-11 correctly in the same attestation form, it is difficult to accept his version that he could not correctly understand the contents of columns 12 and 13. Even otherwise, if he could not correctly understand certain English words, in the ordinary course he could have certainly taken the 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 the respondent was Hindi, he could not understand the contents of columns 12 and 13. It is not the case that columns 12 and 13 are left blank. The respondent could not have said "No" as against columns 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 columns 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 filling 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. 12. 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 the discretion to terminate his services, which is made expressly clear in para 9 of the offer of appointment. 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. 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. 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 antecedents 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 columns 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. 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 columns 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." 8. WHAT is now tried to be contended by the petitioner is that he was minor at the time of lodging of the criminal case and was not aware of the pendency of the said case at the time of furnishing the antecedents and/or information in the prescribed verification roll. It is further contended that he could not understand the implication of furnishing the false/wrong information and/or suppression of the information in the verification roll. 9. IT is noticed from the judgments passed by the court in sesin of the said criminal case that not only the petitioner but all other members of his family was implicated in the said criminal case. It is therefore inconceivable and improbable that the petitioner was not aware of lodging of any criminal case against him when other members of his family are also co-accused. Furthermore in the prescribed verification roll, the required information are printed both in Hindi and English language. It is further appears from the copy of the verification roll annexed to the affidavit-in-opposition that the petitioner furnished the information in Hindi and as such the aforesaid stand that he did not understand the contents of the said information is not tenable. 10. THE petitioner has placed reliance upon a Division Bench judgment delivered in case of Mohan Kumar Halder (supra) to contend that every person is presumed to be innocent unless the contrary is proved and mere pendency of the criminal case cannot attach any stigma so as to disentitle the aspirant from being appointed. 11. THERE is no quarrel to such proposition as the presumption of innocence is a human right unless it is otherwise proved. 11. THERE is no quarrel to such proposition as the presumption of innocence is a human right unless it is otherwise proved. The present case is not a case of dis- entitlement of the petitioner for pendency of the criminal case but a suppression of the information and/or furnishing the false information that no criminal case is pending which would further be evident from the article of charge framed against the petitioner. It is held in case of Kanta Devi (supra) that the requirements of furnishing the information regarding the pendency of the criminal case is for the purpose of verification of the character and antecedents on the date of filing and attestation of the said verification roll and suppression of material information and/or making false statement has a clear bearing on a character and antecedents in relation to continuance in service. 12. NORMALLY the authority which appoints can only dismiss such person as has been appointed by it. Any other authority who has not appointed the person cannot dismiss. Rule 7 B of the Central Reserve Police Force Rules 1955 provides the mode of an authority for appointment which reads thus : "The authority to make appointments to the various non-gazetted ranks shall be the Commandant, provided that, in the case of sub-Inspectors and Subedar (Inspectors) prior approval of he Deputy Inspector General of Police and of the Inspector General respectively shall be obtained." Rule 27 of the said Rule postulates that the punishment as indicated therein may be inflicted by the authority mentioned therein. It would be profitable to quote provisions contained in the aforesaid Rule which are relevant for the present purpose which runs : Sl. No. Punishment Subedar Sub- Others except Const. and Remarks (Inspector) Inspector Const. and enrolled enrolled followers followers 1. Dismissal or DIGP DIGP Comdt. Comdt. To be removal from inflicted the Force. after formal department- al enquiry. Reduction to DIGP DIGP Comdt. Comdt. -do- 2. a lower time- scale of pay, grade, post or service. Reduction to DIGP DIGP Comdt. Comdt. -do- 3. a lower stage in the time- scale of pay for a specified period. 13. FROM the bare perusal of the aforesaid provisions, a Commandant is the authority for inflicting the punishment of dismissal or removal from the force of a constable and enrolled followers. Reduction to DIGP DIGP Comdt. Comdt. -do- 3. a lower stage in the time- scale of pay for a specified period. 13. FROM the bare perusal of the aforesaid provisions, a Commandant is the authority for inflicting the punishment of dismissal or removal from the force of a constable and enrolled followers. Admittedly, the petitioner was a constable and have been removed from service for the proved misconduct. It is also undisputed that the order of punishment was issued and communicated to the petitioner by the Additional Deputy Inspector General of Police. The respondents have categorically contended that the appointment letter was issued by the Additional Deputy Inspector General of Police and as such he shall be deemed to have been the appointing authority so far as the petitioner is concerned. In addition to that Government Order dated 17th January 1984 is produced which envisages that the Additional Deputy Inspector General of Police in the Central Reserve Police Force shall be the Commandants in their respective group centres. From perusal of the aforesaid Government Order it is manifest beyond any doubt that the Additional Deputy Inspector General of Police is a Commandant for respective centres and as such it cannot be said that the order inflicting the order of punishment of removal from service is not passed by the Commandant. 14. THE matter can be viewed from another angle that the post of Additional Deputy Inspector General of Police is higher in rank to the post of Commandant. It has been held in case of Kanta Devi (supra) that although the Commandant is the appointing authority but the Deputy Inspector General of Police being the higher authority has an authority to pass an order of dismissal in these words : "7. A bare reading of the provisions shows that while for the purpose of appointment, the approval of the DIG or the IG, as the case may be, is required to be obtained, that does not make the IG, the appointing authority. The punishments shown as Items 1 to 11 in column 2 of the Table can be imposed on non-gazetted officers and men of various ranks by the authorities named under headings at columns 3 to 6 in terms of the conditions mentioned in column 7. The punishments shown as Items 1 to 11 in column 2 of the Table can be imposed on non-gazetted officers and men of various ranks by the authorities named under headings at columns 3 to 6 in terms of the conditions mentioned in column 7. So far as Item 1 in Rule 27 is concerned, Subedar (Inspector) can be dismissed or removed from the Force by the Deputy Inspector General of Police, who is higher in rank than the Commandant. While considering an almost identical provision, this Court held that even when prior recommendation is necessary, it does not make the recommending/approving authority the appointing authority. (See State of Assam v. Kripanath Sarma.) In that case, the question was whether the Deputy Inspector of Schools in his capacity as the Assistant Secretary of the State Board, could terminate the service of the employees concerned in view of Section 14(3)(iii) of the Assam Elementary Education Act (No. 30) of 1962 read with Section 18 of the Assam General Clauses Act (No. 2) of 1915. It was held that as the Assistant Secretary did not have complete power to appoint teachers, he can do so on the advice of the Advisory Board. Even assuming that recommendation of the Committee is necessary before appointment is made by the Assistant Secretary, the fact still remains that it is not the Committee which appoints and the appointing authority is the Assistant Secretary. 8. According to Rule 7(b), the appointing authority is the Commandant and since the DIG is of higher rank, there is no illegality in the order passed by him in passing the order of dismissal. Just because the IG's approval is required for the purpose of appointment or promotion, the position of the Commandant as the appointing authority is not changed and the IG does not become the appointing authority. If the submission made is accepted, it would mean addition of words or expressions in Rule 27. It is not a case of casus omissus as contended. A construction which requires for its support addition of words has to be avoided. The words of a statute never shared, in interpretation, be added or subtracted from without almost a necessity. It is contrary to all rules of construction to read words into a statute unless it is absolutely necessary to do so. A construction which requires for its support addition of words has to be avoided. The words of a statute never shared, in interpretation, be added or subtracted from without almost a necessity. It is contrary to all rules of construction to read words into a statute unless it is absolutely necessary to do so. Courts cannot reframe the words used by the legislature as they have no power to legislate. A matter which, for the sake of argument, should have been provided but has not been provided for in a statute cannot be supplied by the courts as to do so will be legislation and not construction. (See Johnson v. Moreton and Baliram Waman Hiray (Dr) v. Justice B. Lentin.) There is no presumption that a casus omissus exists, and language permitting the courts should avoid creating a casus omissus where there is none. Therefore, the conclusion of the Division Bench in holding that the order of dismissal passed by the DIG was legal, does not suffer from any infirmity to warrant interference." 15. THEREFORE, the Additional Deputy Inspector General of Police cannot be said to be an authority inferior to the Commandant but is certainly the higher authority and as such on such additional point the argument of the petitioner that inflicting of punishment for removal from service is not passed by the Commandant and is therefore bad, is not sustainable. 16. LAST point which has been taken by the petitioner is that the punishment is disproportionate to the misconduct is also not tenable. Suppression of fact and/or making of false information in the verification roll is serious misconduct. Misconduct is one of the grounds for inflicting punishment as would appear from section 11 of the Central Reserve Police Force Act 1949. It would be profitable to quote the said provision as under : "11. Minor punishments. Suppression of fact and/or making of false information in the verification roll is serious misconduct. Misconduct is one of the grounds for inflicting punishment as would appear from section 11 of the Central Reserve Police Force Act 1949. It would be profitable to quote the said provision as under : "11. Minor punishments. – (1) The Commandant or any other authority or officer as may be prescribed, may, subject to any rules made under this Act, award in lieu of, or in addition to, suspension or dismissal any one or more of the following punishments to any member of the Force whom he considers to be guilty of disobedience, neglect of duty, or remissness in the discharge of any duty or of other misconduct in his capacity as a member of the Force, that is to say,- (a) reduction in rank; (b) fine of any amount not exceeding one month's pay and allowances; (c) confinement to quarters, lines or camp for a term not exceeding one month; (d) confinement in the quarter-guard for not more than twenty- eight days, with or without punishment drill or extra guard, fatigue or other duty; and (e) removal from any office of distinction or special emolument in the Force. (2) Any punishment specified in clause (c) or clause (d) of sub-section (1) may be awarded by any gazetted officer when in command of any detachment of the Force away from headquarters, provided he is specifically authorised in this behalf by the commandant. (2) Any punishment specified in clause (c) or clause (d) of sub-section (1) may be awarded by any gazetted officer when in command of any detachment of the Force away from headquarters, provided he is specifically authorised in this behalf by the commandant. (3) The assistant commandant, a company officer or a subordinate officer, not being below the rank of subedar or inspector, commanding a separate detachment or an outpost, or in temporary command at the headquarters of the Force, may, without a formal trial, award to any member of the Force who is for the time being subject to his authority any one or more of the following punishment for the commission of any petty offence against discipline which is not otherwise provided for in this Act, or which is not of a sufficiently serious nature to require prosecution before a criminal court, that is to say,- (a) confinement for not more than seven days in the quarter-guard or such other place as may be considered suitable, with forfeiture of all pay and allowances during its continuance; (b) punishment drill, or extra guard, fatigue or other duty, for not more than thirty days with or without confinement to quarters, lines or camp; (c) censure or severe censure: Provided that this punishment may be awarded to a subordinate officer only by the Commandant. (4) A jemadar or sub-inspector who is temporarily in command of a detachment or an outpost may, in like manner and for the commission of any like offence, award to any member of the Force for the time being subject to his authority any of the punishments specified in clause (b) of sub-section (3) for not more than fifteen days." 17. A point was canvassed before the apex court in case of Gholam Mohd. Bhat (supra) that section 11 is applicable in case of minor punishment and as such order of removal or dismissal from service should not be passed. While dispelling the aforesaid submission the apex court held that sub-section 1 of section 11 of the sad Act confers power upon the authority to inflict the punishment as indicated therein in lieu of or in addition to suspension or dismissal from service as under: "6. While dispelling the aforesaid submission the apex court held that sub-section 1 of section 11 of the sad Act confers power upon the authority to inflict the punishment as indicated therein in lieu of or in addition to suspension or dismissal from service as under: "6. The use of the words "in lieu of, or in addition to, suspension or dismissal", appearing in sub-section (1) of Section 11 before clauses (a) to (e) shows that the authorities mentioned therein are empowered to award punishment of dismissal or suspension to the member of the Force who is found guilty and in addition to, or in lieu thereof, the punishment mentioned in clauses (a) to (e) may also be awarded. 7. It may be noted that Section 9 of the Act mentions serious or heinous offences and also prescribes penalty which may be awarded for them. Section 10 deals with less heinous offences and clause (m) thereof shows that absence of a member of the Force without leave or without sufficient cause or overstay without sufficient cause, is also mentioned as less heinous offence and for that also a sentence of imprisonment is provided. It is, therefore, clear that Section 11 deals with only those minor punishments which may be awarded in a departmental inquiry and a plain reading thereof makes it quite clear that a punishment of dismissal can certainly be awarded thereunder even if the delinquent is not prosecuted for an offence under Section 9 or Section 10. 8. It is fairly well-settled position in law that removal is a form of dismissal. This Court in Dattatraya Mahadev Nadkarni (Dr.) v. Municipal Corpn. of Greater Bombay [ (1992) 2 SCC 547 : 1992 SCC (Lands) 615 : (1992) 20 ATC 275 : AIR 1992 SC 786 ] explained that removal and dismissal from service stand on the same footing and both bring about termination of service though every termination of service does not amount to removal or dismissal. The only difference between the two is that in the case of dismissal the employee is disqualified from future employment while in the case of removal he is not debarred from getting future employment. Therefore, dismissal has more serious consequences in comparison to removal. In any event, Section 11(1) refers to the Rules made under the Act under which action can be taken. Therefore, dismissal has more serious consequences in comparison to removal. In any event, Section 11(1) refers to the Rules made under the Act under which action can be taken. Rule 27 is part of the Rules made under the Act. Rule 27 clearly permits removal by the competent authority. In the instant case the Commandant who had passed the order of removal was the competent authority to pass the order." 18. THERE is no doubt that the petitioner being a police constable was an enrolled member of the disciplined force. It is expected that such enrolled member would not indulge himself into any case of suppression of fact and/or making the false information. The act of discipline must be dealt with sternly. It is the onus upon the petitioner to prove that the punishment inflicted was not only disproportionate but shockingly disproportionate. Unless a case of such nature is made out the High Court under article 226 of the Constitution should not interfere. (See CRPF Vs. surinder Kumar (2011) 10 SCCC 244 para 15). 19. THUS, this court does not find any ground warranting the interference under the principle of judicial review. The writ petition is, therefore, dismissed. There shall have no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.