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2014 DIGILAW 382 (PAT)

Bishkeshan Teu v. State Of Bihar

2014-03-27

AJAY KUMAR TRIPATHI

body2014
ORDER There is a long story behind the present litigation starting sometime in the year 1994. 2. Initially, petitioner came to be appointed on the post of Constable under compassionate head after demise of his father. He filed an application, which was processed and accepted by the respondent authorities. Petitioner came to be appointed and a service book was opened, which is Annexure-A to the counter affidavit of the respondents. However, on police verification, it emerged that a FIR had been instituted against the petitioner making him one of the accused with four other persons under Sections 452, 353, 380, 323 etc. of the IPC. Since the petitioner was still a probationer, an order contained in Annexure- 2 was issued, which is an order of removal simpliciter. This is dated 16.11.1994. Petitioner filed a writ application. An order dated 17.11.2008, contained in Annexure- 4, was passed giving a direction upon the respondent authorities to dispose of the statutory appeal. The direction of the Court led to passing of an order dated 13.9.2011 by the Director General of Police, which is Annexure- 5. By virtue of this order, the petitioner was reinstated and an order for holding fresh enquiry was passed since the earlier decision, contained in Annexure- 2 was without show cause or enquiry. Petitioner joined work for a while then a charge-sheet contained in Annexure- 6, dated 16.12.2011 was issued that there was suppression of facts by him that petitioner was accused in a criminal case at the relevant time. Enquiry was held. Petitioner was found guilty on that count, therefore, the order of removal contained in Annexure- 10, which is dated 10.7.2012, was passed. This annexure is the cause of action and is under challenge in the present writ application. 3. Since much has transpired on the dispute, the Court is not persuaded by the stand taken by the State authorities that Annexure- 2 was a valid order as petitioner was a probationer and nothing more than an order simpliciter of removal was required to be passed. If the matter stood at that there would have no problem but the highest in the department i.e. DG of Police himself has reinstated the petitioner in terms of Annexure- 5 holding that he was not given adequate opportunity and no enquiry was held. Order of reinstatement, therefore, came to be passed with freedom to hold an enquiry. 4. If the matter stood at that there would have no problem but the highest in the department i.e. DG of Police himself has reinstated the petitioner in terms of Annexure- 5 holding that he was not given adequate opportunity and no enquiry was held. Order of reinstatement, therefore, came to be passed with freedom to hold an enquiry. 4. That enquiry has culminated into termination now. This is for the Court to decide whether such an order ought to be upheld in the very first place. 5. After taking the rival contentions coupled with the fact that appointment of the petitioner was under the compassionate head at the relevant time, the respondent authorities have over-stretched the issue of suppression of pendency of a criminal case. It is a sheer coincidence that within a day or two of the petitioner filing an application for compassionate appointment, a FIR was instituted on 11.2.1994, which culminated into acquittal of the petitioner on 21.12.1994 on the basis of a compromise. The Court cannot be unmindful of the fact that such petty institutions of cases to forestall any chance of appointment are resorted to at the village level and the present case seems to be one of them. Acquittal of the petitioner happened way back on 21.12.1994. Once a court of law has given him a clean-chit, the respondent authorities have overstretched the issue of suppression or pendency of a criminal case when the second round of enquiry was initiated may be on the basis of the decision contained in Annexure- 5. The matter had already come to rest. No taint as such subsists against the petitioner because the order of acquittal would relate back to the date of institution of the FIR. 6. Counsel for the petitioner seems to be correct in taking cue from the ratio of the case of Commissioner of Police & Ors. V. Sandeep Kumar, reported in 2011 (2) PLJR 196 (SC). A Bench of the Hon’ble Supreme Court taking into consideration similar facts came to a considered opinion that a modern approach to such issue was required where branding a person as a criminal all his life should be given indulgence and a lenient view should be taken. 7. In the present case petitioner stood acquitted in 1994. A Bench of the Hon’ble Supreme Court taking into consideration similar facts came to a considered opinion that a modern approach to such issue was required where branding a person as a criminal all his life should be given indulgence and a lenient view should be taken. 7. In the present case petitioner stood acquitted in 1994. The institution of the FIR may not be to the knowledge of the petitioner because it happened soon after he filed an application for compassionate appointment. No doubt, later on a process under Section 82 and 83 under Cr. P.C. was issued but that also is an indicator that petitioner was not aware of the case instituted against him. Otherwise, he would have taken steps especially when the charges were not very serious looking at the sections which were brought against him. 8. Petitioner is a simple tribal person. Compassionate appointment was the mode through which he got engagement on the post of a Constable. It will be too harsh now to allow the respondents to use the issue of institution and pendency of a FIR before the actual appointment of the petitioner to dismiss him a second time over. 9. For the reasons above, Annexure- 10, dated 10.7.2012 is hereby quashed. Petitioner is reinstated in service. He will, however, not be entitled to any payment of past salary etc. but the benefit of service in terms of length for the purpose of pension etc. will surely be taken into consideration. 10. Writ is allowed in terms of the above.