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2013 DIGILAW 103 (JK)

Amit Singh v. Union of India & Ors.

2013-02-20

MANSOOR AHMAD MIR

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1. I have already dealt with a similar controversy at Srinagar in a writ petition titled Jahangir Ahmad Khanday v. State of J&K and others, being writ petition SWP No. 1811/2011, by a detailed judgment dated 31.08.2012, followed by two judgments at Jammu in writ petition SWP No. 232/2010 titled Zulfakar Ahmad v. State and others), decided on 04.10.2012 and in writ petition SWP No. 2253/2009 titled Naranjan Singh v. State and others, decided on 27.12.2012, though on peculiar similar facts and circumstances involved in those cases, holding that the writ petitions merited acceptance. 2. The brief facts of the case at hand are that the petitioner came to be appointed and posted in 128th Bn. of CRPF. It is contended that the petitioner performed his duties for almost five years with dedication and devotion. 3. Precisely, the case of the petitioner is that his services came to be terminated because of the fact that he was allegedly involved in a criminal case registered prior to his appointment. The reason of terminating his services is the receipt of an adverse verification report, which revealed the petitioner's involvement in FIR No. 88/2004 at Police Station, Bishnah, under sections 341/323/147 RPC. It is submitted that the allegations leveled against the petitioner in the said FIR are false and frivolous. It is submitted further that the said FIR and the offences alleged against the petitioner cannot be made a ground for terminating his services. 4. Respondents have filed the reply and contested the averments made in the writ petition and averred that the petitioner was found involved in the FIR supra and that is the reason for terminating his services. 5. Learned counsel for the petitioner has appended a certified copy of order passed by the Learned Judicial Magistrate 1st Class, Bishnah, whereby he stands acquitted in the FIR, which is the genesis of the whole controversy. 6. Heard learned counsel for the parties. The core question involved in the writ petition is as to whether the alleged FIR in which the petitioner stood already acquitted prior to his appointment could be made basis for his dismissal five years after his appointment and is entitled to reinstatement. Admittedly, the termination order has been founded on the basis of the aforesaid FIR. The core question involved in the writ petition is as to whether the alleged FIR in which the petitioner stood already acquitted prior to his appointment could be made basis for his dismissal five years after his appointment and is entitled to reinstatement. Admittedly, the termination order has been founded on the basis of the aforesaid FIR. In view of the admitted position that the petitioner stood acquitted of the charges leveled against him prior to his appointment, the same could not have been legally made a ground for his termination from service. 7. The apex Court recently in a judgement titled State of West Bengal & ors. v. S. Nazrul Islam reported in 2011 AIR SCW 6558, has held that if a Constable is involved in any criminal offence, he cannot possibly be held to be suitable for appointment to the post of Constable, till he is acquitted of the charges leveled against him. It is relevant to extract paragraph 5 of the judgement, which reads as under: "5. We have heard learned counsel for the parties and we fail to appreciate how when a criminal case under Sections 148/323/380/427/596, IPC, against the respondent was pending in the Court of the Additional Chief Judicial Magistrate, Uluberia, Howrah, any mandamus could have been issued by the High Court to the authorities to appoint the respondent as a Constable. Surely, the authorities entrusted with the responsibility of appointing constables were under duty to verify the antecedents of a candidate to find out where he is suitable for the post of constable and so long as the candidate has not been acquitted in the criminal case of the charges under Sections 148/323/380/427/596, IPC, he cannot possibly be held to be suitable for appointment to the post of Constable." 8. The Supreme Court in another case titled Commissioner of Police and others v. Sandeep Kumar reported in (2011) 4 SCC 644 held that the authorities should condone the minor indiscretions made by young people rather than brand them as criminals for the rest of their lives. The Supreme Court in another case titled Commissioner of Police and others v. Sandeep Kumar reported in (2011) 4 SCC 644 held that the authorities should condone the minor indiscretions made by young people rather than brand them as criminals for the rest of their lives. The apex Court further held that young people often commit indiscretions, and the approach of the State should be to condone such indiscretions rather than branding them as criminals for rest of their lives, and that the modern approach should be to reform a person instead of branding him as a criminal for all his life. It is relevant to reproduce the paragraphs 8, 9 and 10 of the judgement, which read as under: "8. We respectfully agree with the Delhi High Court that the cancellation of his candidature was illegal, but we wish to give our own opinion in the matter. 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 be 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 branch them as criminals for the rest of their lives. 9. In this connection, we may refer to the character "Jean Valjean" in Victor Hugo's 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 modem approach should be to reform person instead of branding him as a criminal all his life. 10. 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. They 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...." 9. They 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...." 9. The Supreme Court in the aforementioned judgement has further gone to say that even if a candidate has not mentioned in the application form that he was involved in a criminal case, that cannot be a ground for denying him the appointment. It is useful to reproduce paragraph 12 of the judgement, which reads: "12. It is true that in the application from the respondent did not mention that he was involved in a criminal case under Sections 325/34IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified. 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." 10. This Court in Narinder Kumar Sharma v. State and others reported in 2011 (4) JKJ 176 (HC) and Bilal Ahmad Parra v. State and others reported in 2011 (4) JKJ 601 (HC), while discussing the issue has laid down the same law, 11. Law on the point is no more res Integra. Reference in this behalf may be made to Ram Kumar v. State of UP and ors., reported as 2012 (1) JKJ 113 [SC], wherein the Supreme Court has held that if the police official is acquitted, his order of discharge or termination is required to be quashed. It would be profitable to reproduce paragraphs 8 & 11 thereof, which read as under: "8. In the facts of the present case, we find that though Criminal Case No. 275 of 2001 under Section 324/323/504 IPC had been registered against the appellant at Jaswant Nagar Police Station, District Etawah, admittedly the appellant had been acquitted by order dated 18.07.2002 by the Additional Chief Judicial Magistrate, Etawah. On a reading of the order dated 18.07.2002 of the Additional Chief Judicial Magistrate would show that the sole witness examined before the Court, PW-1 Mr. On a reading of the order dated 18.07.2002 of the Additional Chief Judicial Magistrate would show that the sole witness examined before the Court, PW-1 Mr. Akhilesh Kumar, had deposed before the Court that on 02.12.2000 at 4.00 p.m. children were quarrelling and at that time the appellant, Shailendra and Ajay Kumar amongst other neighbours had reached there and someone from the crowd hurled abuses and in the scuffle Akhilesh Kumar got injured when he fell and his head hit a brick platform and that he was not beaten by the accused person by any sharp weapon. In the absence of any other witness against the appellant, the Additional Chief Judicial Magistrate acquitted the appellant of the charges under Section 323/34/504IPC. On these facts, it was not at all possible for the appointing authority to take a view that the appellant was not suitable for appointment to the post of a police constable. 11. For the aforesaid reasons, we allow the appeal, set aside the order of the learned Single Judge and the impugned order of the Division Bench and allow the writ petition of the appellant and quash the order dated 08.08.2007 of the Senior Superintendent of Police, Ghaziabad. The appellant will be taken back in service within a period of two months from today but he will not be entitled to any back wages for the period he has remained out of service. There shall be no order as to costs." 12. In view of the facts of the present case narrated above and in light of the law laid down in the judgments supra, writ petition merits acceptance. I do so accordingly. Writ petition is allowed. Impugned Order bearing No. V.1-1/2010-EC-11-128 dated 19th November, 2010, passed by respondent No. 4, is quashed, with further direction to the respondents to reinstate the petitioner into service forthwith with all consequential benefits. 13. Disposed of along with all connected CMPs.