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2012 DIGILAW 615 (MAD)

Naresh Baliram Ingle v. Commandant Cisf

2012-02-06

B.RAJENDRAN

body2012
JUDGMENT ( 1. ) THIS writ petition is filed by the petitioner, who was employed as Constable in Central Industrial Security Force (for short CISF). While the petitioner was working as Constable, by an Office Order dated 6.2.2005 issued by the respondent, he was informed that certain adverse remarks were made in his service book under the column 'Annual Remarks' by his superior officers and he was directed to make efforts to ensure that such shortcomings did not occur in his service. While so, within three days from the date of Office Order, the impugned order dated 9.2.2005 was passed by the respondent terminating the petitioner from service on the ground that he suppressed his involvement in a criminal case at the time of his entry into the service. Aggrieved by the same, the present writ petition was filed by the petitioner. ( 2. ) THE learned counsel for the petitioner would contend that on receipt of the Office order dated 6.2.2005, indicating the involvement of the petitioner in a criminal case, he verified it with his native place and came to know that his name was included in a first Information Report registered in Crime No.3 802 of 2002 on the file of Nandura Police Station against 17 persons in relation to an alleged incident that took place in a wedding ceremony on 6.3.2002 violating Section 136 of the Bombay Police Act. In the said case, the petitioner was arrayed as Accused No. 12. According to the counsel for the petitioner, the petitioner had no role to play in the alleged incident nor was he involved in the incident which formed the basis of the criminal complaint. Therefore, according to the learned counsel for the petitioner, the petitioner was falsely roped in as an accused in the criminal case, which relates to an alleged violation of prohibitiory order. According to the learned counsel for the petitioner, the petitioner was therefore not aware of the registration of the criminal case against him besides that the very same Inspector of Police, Nandura Police Station had issued a Character and Anteceedent Certificate on 3.6.2002 in favour of the petitoiner stating that the petitioner had no bad anteceedent or that he had not involved in any criminal case, three months after the alleged incident. Furthermore, the criminal proceedings were subsequently dismissed on 13.10.2010 on the ground that the prosecution had failed to establish both the existince of a prohibitory order and the presence of the accused. Immediately after discharge of the petitioner from the criminal case, he made a representation on 15.11.2010 through his counsel bringing to the notice of the respondent the discharge of the petitioner from the criminal case and sought for reinstatement in service. On 28.1.2011, the respondent sent a reply stating that the petitioner had suppressed his involvement in the criminal case at the time of his appointment in CISF and furnished false information in attestation form as well as Character and anteceedents and therefore, his termination is valid and his exoneration from criminal case will not be a ground for reinstating him in service. ( 3. ) THE learned counsel for the petitioner would further contend that the petitioner was not aware of the pendency of criminal case registered against him and therefore, it cannot be said that he had suppressed his involvement in the criminal case at the time of his entry in service. Further, the respondent did not give any opportunity to the petitioner to reply to the adverse remarks communicated to him on 6.2.2005 which is evident that within three days thereafter, the impugned order of termination was passed on 9.2.2005. In any event, the impugned order was passed by the respondent without giving any opportunity to the petitioner and it violates the principles of natural justice. Had the respondent given an opportunity to the petitioner, he would have been in a position to demonstrate that he was not aware of the criminal case registered against him. In this context, the learned counsel for the petitioner relied on the decision of the Honourable Supreme Court in Commissioner of Police and Others v. Sandeep Kumar (2011) 4 MLJ1006. In that case, the respondent challenged the order of cancellation cancelling his selection to the post of Head Constable on the ground that he concealed his criminal background. The Honourable Supreme Court held that the incident happened when the respondent was 20 years old and at that young age, such indiscretions can often be committed and the same can be condoned. The Honourable Supreme Court held that the incident happened when the respondent was 20 years old and at that young age, such indiscretions can often be committed and the same can be condoned. The Honourable Supreme Court further held that minor indiscretions made by young people required to be condoned rather than to brand them as criminals for the rest of their lives. Pointing out the above decision, the learned counsel for the petitioner prayed for allowing the writ petition. ( 4. ) THE learned counsel for the respondent would contend that Rule 25 of CISF Rule,2001 contemplates that suppression of fact regarding pendency of criminal case against an individual is a violation of the conditions of service. Relying on Rule 25, the learned counsel for the respondent would contend that as contemplated therein, the respondent terminated the service of the petitioner after paying one month's pay in lieu of a notice and therefore, the impugned order does not suffer from the violation of principles of natural justice. As per the CISF Rules, the respondent has got every right to terminate the services of the petitioner, who was under probation. Since the petitioner suppressed his involvement in the criminal case at the time of his entry into the service, especially a disciplined force, the punishment of termination of service is valid and proper. Merely because the petitioner was subsequently acquitted or discharged in the criminal case, that will not be a ground for the petitioner to seek for reinstatement in service or it will give a legal right in favour of the petitioner to seek re-employment. When the respondent had followed all the Rules and Regulations before passing the impugned order of termination, interference of this Court is not warranted and he prayed for dismissal of the writ petition. ( 5. ) I heard the counsel for both sides and perused the material records. The only point for consideration in this petition is whether the petitioner had intentionally and wilfully suppressed his involvement in a criminal case at the time of his selection and appointment to the post of Head Constable in the CISF warranting his termination from service. ( 6. ) I heard the counsel for both sides and perused the material records. The only point for consideration in this petition is whether the petitioner had intentionally and wilfully suppressed his involvement in a criminal case at the time of his selection and appointment to the post of Head Constable in the CISF warranting his termination from service. ( 6. ) ACCORDING to the petitioner, at the time of his entry into service, he was not aware of the pendency of criminal case against him and therefore, it cannot be termed to be a suppression of his involvement in a criminal case. Only after receipt of the Office Order dated 6.2.2005, the petitioner made enquiries and came to know that he was arrayed as 12th accused in a case in Crime No. 3028 of 2002 on the file of Inspector of Police, Nandura Police Station registered on 6.3.2002, in which the allegation made against the petitioner was he was one of the participants in respect of an unlawful assembly violationg the prohibitory orders which was in force. On the contrary, the very same Inspector of Police, Nandura Police Station had issued a certificate dated 3.6.2002 in favour of the petitioner stating that the petitioner had no bad anteceedent or that he involved himself in any criminal case. Therefore, the petitioner was not at all aware of the pendency of criminal case against him and he came to know the same only when the Office order dated 6.2.2005 was issued by the respondent. Thereafter, even before the petitioner could make enquiries with regard to the nature of criminal proceedings initiated against him, the impugned order dated 9.2.2005 was passed terminating him from service. ( 7. ) NOW, let us look into Rule 25 of the CISF Rules, which runs as follows: "25. Probation: (1) Every member of the force except those appointed on deputation/absorption shall be on probation for the period specified in relevant column of the Recruitment Rules. Provided further that no member of the Force shall ordinarily be kept on probation for more than twice the period prescribed in respective Recruitment Rules. Probation: (1) Every member of the force except those appointed on deputation/absorption shall be on probation for the period specified in relevant column of the Recruitment Rules. Provided further that no member of the Force shall ordinarily be kept on probation for more than twice the period prescribed in respective Recruitment Rules. (2) If during the period of probation the appointing authority is of the opinion that a member of the Force is not fit for permanent appointment, the appointing authority may discharge him (or terminate the services) from the Force after issuing a notice of one month or after giving one month's pay in lieu of such notice or revert him to the rank from which he was promoted or repatriated to his Parent Department, as the case may be." ( 8. ) IT is evident from Rule 25 that even if a probationer is not found fit for continuance in employment, he shall be terminated by the appointing authority after giving one month notice or one month salary in lieu of notice, before passing any order. In this case, the petitioner was appointed as Head Constable on 20.3.2002 and he had put in more than 3 years of service and on 9.2.2005, he was terminated from service. Till the time of his termination, his probation was not declared. ( 9. ) A perusal of the impugned order would reveal that there was no mentioning about the alleged suppression of the petitioner's involvement in the criminal case at the time of his entry into service and only on the basis of further enquiries by the department in the year 2005, the department sent the notice for adverse remarks in the service records. Only on receipt of such notice, the petitioner came to know about the registration of first information report against him. Thereafter, the petitioner made enquiries and found that his name was included in a criminal case and it subsequently ended in acquittal or discharge of the petitioner on 13.10.2010 on the ground that the prosecution had failed to establish both the existence of a prohibitory order and the presence of the accused. The copy of the judgment rendered by the Criminal Court was also produced before this Court wherein it was stated that the prosecution has not even proved that there was an prohibitory order promulgated or was in force at the time of incident. The copy of the judgment rendered by the Criminal Court was also produced before this Court wherein it was stated that the prosecution has not even proved that there was an prohibitory order promulgated or was in force at the time of incident. Therefore, the petitioner would contend that there is no proof for his participation in the alleged unlawful assembly and it is not correct. Under those circumstances, the petitioner sent a representation on 15.11.2010 to the respondent seeking reinstatement, which was rejected by reply dated 28.1.2011 of the respondent. Even before passing the order of rejection dated 28.1.2011, the respondent did not afford any opportunity to the petitioner to putforth his defence. ( 10. ) THE learned counsel for the petitioner relied on the decision of the Honourable Supreme Court in Commissioner of Police and Others v. Sandeep Kumar (supra) in which the Honourable Supreme Court considered the effect of suppression of criminal anteceedent at the time of entering into government service. In Para Nos.7, 8, 10, 11 and 12 of the judgment, the Honourable Supreme Court held as follows: "7. On 2.8.2011, a show cause notice was issued to him asking the respondent to show cause why his candidature for the post should not be cancelled because he had concealed the fact of his involvement in the aforesaid criminal case and had made a wrong statement in his application form. 8. The respondent submitted his reply on 17.8.2001 and an additional reply, but the authorities were not satisfied with the same and on 29.5.2003 cancelled his candidature. The respondent filed a petition before the Central Administrative Tribunal, which was dismissed on 13.2.2004. Against that order, the respondent filed a writ petition which has been allowed by the Delhi High Court and hence this appeal. ( 11. ) WHEN the incident happened, the respondent must have been about 20 years of age. At that age, young people often commit indiscretions, and such indiscretions can often been condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives. In this connection, we may refer to the character "Jean Valjean" in Victor Hugos novel "Les Miserables"; in which for committing a minor offence of stealing a loaf of bread for his hungry family Jean Valjean was branded as a thief for his whole life. The modern approach should be to reform a person instead of branding him as a criminal all his life. ( 12. ) WE may also here refer to the case of Welsh students mentioned by Lord Denning in his book " Due Process Of Law". It appears that some students of Wales were very enthusiastic about the Welsh language and they were upset because the radio programmes were being broadcast in the English language and not in Welsh. Then came up to London and invaded the High Court. They were found guilty of contempt of Court and sentenced to prison for three months by the High Court Judge. They filed an appeal before the Court of Appeals. Allowing the appeal, Lord Denning observed: "I come now to Mr. Watkin Powell's third point. He says that the sentences were excessive. I do not think they were excessive, at the time they were given and in the circumstances then existing. Here was a deliberate interference with the course of justice in a case which was no concern of theirs. It was necessary for the Judge to show "and to show to all students everywhere" that this kind of thing cannot be tolerated. Let students demonstrate, if they please, for the causes in which they believe. Let them make their protests as they will. But they must do it by lawful means and not by unlawful. If they strike at the course of justice in this land "and I speak both for England and Wales" they strike at the roots of society itself, and they bring down that which protects them. It is only by the maintenance of law and order that they are privileged to be students and to study and live in peace. So let them support the law and not strike it down. It is only by the maintenance of law and order that they are privileged to be students and to study and live in peace. So let them support the law and not strike it down. But now what is to be done? The law has been vindicated by the sentences which the judge passed on Wednesday of last week. He has shown that law and order must be maintained, and will be maintained. But on this appeal, things are changed. These students here no longer defy the law. They have appealed to this Court and shown respect for it. They have already served a week in prison. I do not think it necessary to keep them inside it any longer. These young people are of no ordinary criminals. There is no violence, dishonesty or vice in them. On the contrary, there was much that we should applaud. They wish to do all they can to preserve the Walsh language. Well may they be proud of it. It is the language of the bards "of the poets and the singers" more melodiously by far than our rough English tongue. On high authority, it should be equal in Wales with English. They have done wrong "very wrong" in going to the extreme they did. But, having been shown, I think we can, and should, show mercy on them. We should permit them to go back to their studies, to their parents and continue the good course which they have so wrongly disturbed." (vide: Morris v. Crosn Office, (1970) 2 Q.B.114) ( 13. ) IN our Opinion, we should display the same wisdom as displayed by Lord Denning As already observed above, youth often commit indiscretions, which are often condoned. It is true that in the application form, the respondent did not mention that he was involved in a criminal case under Section 325/34 IPC. Probably, he did not mention this out of fear that if he did so he would automatically be disqualified. ( 14. ) AT any event, it was not such a serious offence like murder, dacoity or rape, and hence, a more lenient view should be taken in the matter. For the reasons above given, this appeal has no force and it is dismissed. No costs." ( 15. ( 14. ) AT any event, it was not such a serious offence like murder, dacoity or rape, and hence, a more lenient view should be taken in the matter. For the reasons above given, this appeal has no force and it is dismissed. No costs." ( 15. ) IT is evident from the aforesaid decision of the Honourable Supreme Court that a liberal approach can be adopted in case which involves minor indiscretions committed by the individuals and that need not be taken as a ground to bar them from their entry into service or terminating them from service. Applying the aforesaid decision of the Honourable Supreme Court in the present case and taking into consideration that the petitioner was not at all aware of the registration of criminal case against him and subsequently, the criminal case also ended in discharge or acquittal of the petitioner the impugned order of rejection needs a re-look. After his discharge, the petitioner also submitted a representation dated 15.11.2010 to the respondent seeking reinstatement in the light of the judgment passed by the Criminal Court, but the same was rejected by the respondent without giving an opportunity to the petitioner. Therefore, suffice it to say that the respondent shall once again consider the representation dated 15.11.2010 of the petitioner in the light of the Judgment of the Supreme Court in Commissioner of Police and Others v. Sandeep Kumar (supra) after giving opportunity to the petitioner to put forth his defence. It is further pertinent to note that in this case, after the adverse remarks were communicated on 6.2.2002, immediately, without giving any notice or seeking for any explanation, by giving one month salary, the petitioner was terminated. Therefore, definitely, the petitioner ought to have been given an opportunity of hearing before the order of termination has been passed as the termination was not only passed on the basis that the petitioner was under the probation period. ( 16. Therefore, definitely, the petitioner ought to have been given an opportunity of hearing before the order of termination has been passed as the termination was not only passed on the basis that the petitioner was under the probation period. ( 16. ) IN the result, the impugned orders are set aside and the matter is remanded back to the respondent to reconsider the claim of the petitioner for reinstatement in the light of the judgment rendered by the Honourable Supreme Court in Commissioner of Police and Others v. Sandeep Kumar (supra) after giving an opportunity to the petitioner and pass orders on merits and in accordance with law, within a period of four months from the date of receipt of a copy of this order. Accordingly, the writ petition is disposed of. No costs.