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2015 DIGILAW 952 (GAU)

Ananta Khaklary v. State of Assam

2015-08-04

HRISHIKESH ROY

body2015
JUDGMENT : Heard Mr. P. Kataki, the learned Counsel appearing for the petitioner. The respondents are represented by the learned Government Advocate Ms. B. Devi. 2. The petitioner was a constable in the 4th Assam Police Battalion (A.P. Bn.) and he challenges the order dated 9.2.2006 (Annexure-X), whereby the constable has been dismissed from service, in pursuant to a disciplinary proceeding. The proceeding under Section 7 of the Police Act read with Rule 66 of the Assam Police Manual was drawn up through the show-cause-notice dated 28.6.2000 (Annexure-VII) and the primary allegation was non-disclosure of criminal antecedents in the petitioner’s Verification Roll. Despite being convicted and incarcerated in prison in 2 criminal cases, the response “No” against Column No.7 in the Verification Roll was furnished, although the informant was required to disclose his crime record. 3 It may be noted that the delinquent was initially dismissed from service on 30.6.1994 but the dismissal order was set aside on a technical ground in the Civil Rule No.3186/1994. Thereafter a fresh discharge order was passed in pursuant to the Disciplinary Proceeding No.12/1997. But the D.I.G.(A.P) as the Appellate Authority found defects in the enquiry proceeding and consequently the delinquent was reinstated in service subject to de novo proceeding. Thereafter the present Discipline Proceeding No.6/2000 was drawn up on 28.6.2000 which culminated in the impugned discharge order dated 9.2.2006 (Annexure-X). 4. In his reply dated 12.8.2000 (Annexure-VIII) to the show-cause-notice the petitioner pleaded that the Verification Roll was filled up by an office staff of the Police Battalion and the petitioner merely put his thumb impression and signature on the said verification form without filling up the particulars, under his own handwriting. 5.1. Being dis-satisfied with the reply and since the disciplinary proceeding was drawn up under Rule 66 of the Police Manual, an enquiry was ordered into the Charges and the petitioner participated in the proceeding. The witness Ratish Ch. Dey, who was posted as Havildar/Clerk in the 5th A.P.Bn. admitted to have written the Verification Roll as per the request made by the petitioner and according to Mr. Dey, the delinquent informed the scribe that he has never been involved in criminal case. 5.2 The evidence of the delinquent in the enquiry was recorded as follows : “………………….; He was enlisted as A.B. Constable in the 5th A.P. Bn. on 29/12/87 and was called by the reserve Branch of 5th A.P.Bn. Dey, the delinquent informed the scribe that he has never been involved in criminal case. 5.2 The evidence of the delinquent in the enquiry was recorded as follows : “………………….; He was enlisted as A.B. Constable in the 5th A.P. Bn. on 29/12/87 and was called by the reserve Branch of 5th A.P.Bn. Sontila for filling up the V/R form. Accordingly he went to Reserve Branch and met Hav/Clk Ratish Dey of Service Sheet Branch. AS per his saying, Hav/Clk. filled up the V/R form. On being found correct he put his signature and thumb impression on the body of the V/R form. He also stated that, before filling up the V/R form the Hav/Clk. Explained him about all the columns of V/R form. …………………………” 5.3 On the basis of those and other evidence recorded during the enquiry proceeding, the Charges were found to have been proved in the Inquiry Report dated 22.11.2005 (Annexure-IX). 6. The disciplinary authority considered the Inquiry Report and noted that the delinquent was convicted twice before he joined service but he failed to disclose about his criminal antecedent. The proffered excuse of not knowing English for withholding vital information in the verification form was disbelieved and accordingly it was opined that the delinquent is not fit to be retained in service and on this basis, the order for dismissal was passed by the disciplinary authority on 9.2.2006 (Annexure-X). The resultant Appeal filed by the delinquent was rejected by the Appellate Authority on 19.9.2008 (Annexure-XI). 7.1 The petitioner contends that he never filled up the Verification Report himself and it was done by the Havildar/Clerk Ratish Ch. Dey of the 5th A.P.Bn. and therefore if any wrong information was given in the Verification Form, the petitioner should not be penalized so harshly. 6.2 As the delinquent had served out his sentences in both the criminal cases, Mr. P. Kataki, the learned Counsel submits that non-mentioning of the criminal past in the Verification Form, should not amount to a major misconduct. 8. On the other hand, Ms. B. Devi, the learned Government submits that the petitioner can’t be treated sympathetically since he suppressed his criminal antecedent while filling up the Verification Form and since crime record is a relevant criteria for recruitment, the continuation in service of such convicted person would not be justified, in a disciplined force. 9. 8. On the other hand, Ms. B. Devi, the learned Government submits that the petitioner can’t be treated sympathetically since he suppressed his criminal antecedent while filling up the Verification Form and since crime record is a relevant criteria for recruitment, the continuation in service of such convicted person would not be justified, in a disciplined force. 9. The record shows that the delinquent was given adequate opportunity to defend the charges and the conclusion reached by the Enquiry Officer is supported by the evidence adduced in the proceeding. Undoubtedly the personal particulars in the Verification Form filled up by Ratish Ch. Dey, were those of the delinquent himself and the scribe couldn’t be privy to the information reflected in the delinquent’s Verification Form. Moreover the delinquent in his own evidence admits that the Havildar/Clerk filled up the Verification Form on instruction given by him and only after the delinquent satisfied himself with the correctness of the recording, he put his signature and thumb impression on the body of the Verification Form. 10. In the above backdrop, the delinquent can’t be allowed to escape his consequences for withholding the information about his crime record. That apart, the recruitment to Government posts are subject to police verification and the exercise definitely encompass criminal antecedent of the recruited persons. Had there been a truthful disclosure and the authorities would have been aware about the incarceration of the delinquent in jail, it is unlikely that he would have secured appointment. In such circumstances, I hold that the disciplinary authority was correct in assessing that it will be illegal to retain the delinquent in service, because of wrong disclosure in the Verification Report. 11. When a disciplinary proceeding is drawn up against an employee, the standard of proof is preponderance of probabilities and some relevant material to justify the conclusion reached by the Enquiry Officer and the writ Court is not expected to act as an appellate authority to judge the merit of the conclusion reached in the Enquiry Report. Interference would be justified only when there is procedural error leading to manifest injustice. But in the present case, as earlier noted, the delinquent was afforded a fair opportunity to defend the charges and the conclusion of the Enquiry Officer is based on documentary and oral evidence. Therefore I hold that interference with the disciplinary matter will not be justified in this case. 12. But in the present case, as earlier noted, the delinquent was afforded a fair opportunity to defend the charges and the conclusion of the Enquiry Officer is based on documentary and oral evidence. Therefore I hold that interference with the disciplinary matter will not be justified in this case. 12. In view of the discussion made in the preceding paragraphs and considering the nature of charge, the punishment is found to be proportionate to the misconduct and therefore I see no justification to interfere with the impugned order. Thus the writ petition is found to be without merit and the same is accordingly dismissed. No cost.