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2016 DIGILAW 2026 (GUJ)

Zakirkhan Sikandrakhan Pathan v. State of Gujarat

2016-09-08

ABHILASHA KUMARI

body2016
JUDGMENT : Abhilasha Kumari, J. By preferring this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 14.09.2011 passed by respondent No.3, Inspector General of Police and Joint Director, Gujarat Police Academy, Karai, whereby the petitioner has been discharged as Trainee Assistant Police Sub Inspector (Unarmed). 2. Briefly stated, the relevant facts of the case are that the petitioner was appointed as a Trainee Assistant Police Sub Inspector (Unarmed) by an office order dated 20.11.2010, pursuant to his being placed in the select list of Unarmed Assistant Police Sub Inspectors by an order dated 06.09.2010, after the completion of the recruitment process. As per the order dated 20.11.2010, the appointment of the petitioner was purely on an adhoc basis on a fixed salary of Rs.6,000/per month, subject to certain conditions as mentioned in the said order. The petitioner was to undergo basic training for a period of one year and upon completion of the training, he would have been placed under probation for a period of eighteen months, during which period he would have undergone Commando training. As per the conditions stipulated in the order, had the petitioner been unsuccessful in his training, he would have been removed from service. However, after a period of five years of satisfactory service, the services of the petitioner would have been regularised. Condition No.2 of the appointment order stipulates that the services of the petitioner are purely adhoc and he could be removed from service without notice, at any point of time. Condition No.23 of the said order further stipulates that if, during the period of contract, the performance of the petitioner is unsatisfactory or he indulges in indiscipline/ misconduct, his services could be terminated without notice. Subject to the above conditions, the petitioner underwent training for a period of about ten months. However, by the impugned order dated 14.09.2011, passed by the third respondent, the petitioner stood discharged from service on the ground that, while filling up the Registration Form he had concealed information that was required to be divulged in Column No.18 of the said Form, to the effect whether he was earlier involved in any criminal case, or not. Against the said column, the petitioner had answered 'no', whereas, it transpired that he was involved in a criminal case at the relevant point of time when he had filled up the Form. Against the said column, the petitioner had answered 'no', whereas, it transpired that he was involved in a criminal case at the relevant point of time when he had filled up the Form. Aggrieved by the above order, the petitioner is before this Court. 3. Mr. Parth H. Bhatt, learned advocate for the petitioner has submitted that, the sole object and purpose of including a column, such as Column No.18 in the Registration Form, is to elicit information from the Trainee whether he has been convicted in a case involving moral turpitude or antisocial activities, or not. It is submitted that the petitioner has genuinely misunderstood Column No.18 to mean that the information sought to be elicited was whether the petitioner stood convicted in any criminal case. As the case against the petitioner was still pending, he answered 'no' to the said column, under a bona fide belief that he was stating the truth, as per his understanding. 4. It is further submitted that Column No.18 of the Registration Form ought to be read with Clause 41 of the Gujarat Police Manual, 1975, which clearly states that conviction, by itself, should not be considered as a disqualification for Government service but each case should be considered on its merits, having regard to the nature of the offence for which the person is convicted. On the basis of this clause, it is emphatically contended by learned counsel for the petitioner that the petitioner has not been convicted in a case regarding moral turpitude or for indulging in antisocial activities, but was involved in a case where the only allegation against him was that he had inflicted a blow on the waist of the complainant with a Baseball bat. This, ipso facto cannot be considered as moral turpitude or an antisocial activity, debarring the petitioner from Government service. 5. Learned counsel for the petitioner further contends that the petitioner has now been honourably acquitted in the criminal case. The candidates who were involved in criminal offences and had answered 'yes' against Column No.18 in the Registration Form, have been continued in service by the respondents, though subject to the final outcome of the cases against them. Had the petitioner been permitted to continue, he would have successfully completed his training period and been absorbed as a regular Assistant Police Sub Inspector (Unarmed) after five years of service. Had the petitioner been permitted to continue, he would have successfully completed his training period and been absorbed as a regular Assistant Police Sub Inspector (Unarmed) after five years of service. It is only because of a genuine mistake and misunderstanding on the part of the petitioner that he is being punished in such a harsh manner. 6. Learned counsel for the petitioner would further contend that the termination of the services of the petitioner has been made in violation of the principles of natural justice, inasmuch as the respondents did not ask him to render any explanation. Nor did they give him any notice before passing the impugned order. On this ground as well, the said order deserves to be quashed and set aside. 7. In support of the above submissions, learned counsel for the petitioner has placed reliance upon the following judgments: (i) Secy. Deptt. of Home Secy. A.P. And Others v. B. Chinnam Naidu (2005) 2 SCC 746 . (ii) Joginder Singh v. Union Territory of Chandigarh And Others (2015)2 SCC 377 . 8. The petition has been strongly opposed by Mr. Niraj Ashar, learned Assistant Government Pleader, by submitting that the appointment of the petitioner has been made on a purely adhoc basis. As per Conditions Nos.2 and 23 of the appointment order, it is clear that the services of the petitioner can be terminated without any notice or opportunity of hearing. The said conditions have been accepted by the petitioner, therefore, there is no violation of the principles of natural justice in terminating the services of the petitioner, as the petitioner was not a regular Government servant. 9. It is next submitted that the contention on the part of the petitioner that he has misunderstood Column No.18 in the Registration Form to mean that only information regarding conviction is required to be disclosed, is not correct, as can be seen from his conduct. It is submitted that the petitioner was very well aware that a criminal case was pending against him. Column No.18 does not speak about conviction but speaks about involvement in a criminal case. By answering 'no' to the said column, the petitioner has deliberately suppressed facts and has tried to misguide the authorities. It is submitted that the petitioner was very well aware that a criminal case was pending against him. Column No.18 does not speak about conviction but speaks about involvement in a criminal case. By answering 'no' to the said column, the petitioner has deliberately suppressed facts and has tried to misguide the authorities. That the attempt on the part of the petitioner is deliberate, can also be gauged from the fact that though the petitioner is a resident of Ahmedabad, which is the address mentioned in the cause title of the petition. However, he has filled up the Form from District Mehsana, in order to further misguide the authorities. It is submitted that the information given by the petitioner in the Registration Form is false and incorrect, therefore, the respondents are justified in discharging him from training. 10. Distinguishing the judgments relied upon by learned counsel for the petitioner, it is submitted that in those judgments, the information that was required to be disclosed was regarding conviction. In the present case, the information sought in Column No.18 of the Registration Form is not regarding conviction in a criminal case but is regarding involvement in such a case. The principles of law enunciated by the Supreme Court in the above judgments would, therefore, not be applicable to the present case. 11. In rejoinder, learned counsel for the petitioner has submitted that the aspect that the petitioner has filled up the form from Mehsana District and not from Ahmedabad District is not one of the grounds for the discharge of the petitioner, in the impugned order. This ground has been taken in the affidavit in reply and cannot be read into the order of termination, at this stage. 12. This Court has heard learned counsel for the respective parties at length, perused the averments made in the petition, contents of the impugned order and other documents on record. 13. The entire controversy arises from Column No.18 of the Registration Form filled up by the petitioner, which is in the vernacular Gujarati language. When translated, it reads as follows: "18. Have you earlier been involved in a criminal case or not? If so, give the details." The petitioner has answered 'no' against the said column. It is an accepted position that on 28.11.2010, when the petitioner filled up the Registration Form, a criminal case was pending against him. When translated, it reads as follows: "18. Have you earlier been involved in a criminal case or not? If so, give the details." The petitioner has answered 'no' against the said column. It is an accepted position that on 28.11.2010, when the petitioner filled up the Registration Form, a criminal case was pending against him. A copy of the FIR filed in that case has been annexed as Annexure-E to the petition, being I-C. R. No.386 of 2007 for offences punishable under Sections 143, 147, 148, 149, 330, 365, 342 of the Indian Penal Code and Section 135(1) of the Bombay Police Act, 1951. It has been submitted on behalf of the petitioner that he has not deliberately concealed any fact but was under the genuine impression that Column No.18 was regarding whether he had been convicted in a criminal case earlier. This is the only explanation offered by the petitioner with regard to the filling up of Column No.18. 14. The answer 'no' given by the petitioner is certainly incorrect, to the knowledge of the petitioner. The petitioner belongs to the State of Gujarat and is well conversant with the Gujarati language. It is not his case that he does not know Gujarati or did not understand what was written in Column No.18. The only explanation rendered is that the petitioner misunderstood Column No.18 to mean whether he is 'convicted' in a criminal case, or not, when what is asked is whether he has been 'involved' in a criminal case. A perusal of Column No.18 clearly shows that it is worded plainly and unambiguously and only information regarding any earlier involvement in a criminal case is sought. There is nothing in the said column that even speaks of conviction in a criminal case. By answering 'no' to this column, the petitioner has given false information, whether under a genuine misunderstanding, or not, which cannot be a mitigating circumstance. Insofar as the filling up of the Registration Form from Mehsana District is concerned, it is correct that in the impugned order of discharge, this is not one of the grounds stated by respondent No.3, for the discharge of the petitioner. This being the position, this Court would not like to elaborate further on this aspect, or pronounce upon the alleged conduct of the petitioner as suggested by the learned Assistant Government Pleader. This being the position, this Court would not like to elaborate further on this aspect, or pronounce upon the alleged conduct of the petitioner as suggested by the learned Assistant Government Pleader. The fact remains that the information divulged by the petitioner in response to Column No.18 is incorrect and the impugned order has been passed for that reason alone. 15. The Court may now examine the judgments cited on behalf of the petitioner. 16. In the first case, in Secy. Deptt. of Home Secy. A.P. And Others v. B. Chinnam Naidu (supra), the Supreme Court was dealing with a case where the relevant attestation form contained Column No.12 read, "Have you ever been convicted by a Court of law or detained under any State/Central preventive detention laws for any offence whether such conviction sustained in court of appeal or set aside by the appellate court if appealed against". To this column, the respondent before the Supreme Court, who had been successful in the test but was not sent for training, did not mention regarding his arrest and the pendency of the case against him. In the factual context of the case and the wording of Column No.12, the Supreme Court held as below: "9. A bare perusal of the extracted portions show that the candidate is required to indicate as to whether he has ever been convicted by a court of law or detained under any State/Central preventive detention laws for any offences whether such conviction is sustained or set aside by the appellate court, if appealed against. The candidate is not required to indicate as to whether he had been arrested in any case or as to whether any case was pending. Conviction by a court or detention under any State/Central Preventive Detention Laws is different from arrest in any case or pendency of a case. By answering that the respondent had not been convicted or detained under Preventive Detention Laws it cannot be said that he had suppressed any material fact or had furnished any false information or suppressed any information in the Attestation Form to incur disqualification. The State Government and the Tribunal appeared to have proceeded on the basis that the respondent ought to have indicated the fact of arrest or pendency of the case, though column 12 of the Attestation Form did not require such information being furnished. The State Government and the Tribunal appeared to have proceeded on the basis that the respondent ought to have indicated the fact of arrest or pendency of the case, though column 12 of the Attestation Form did not require such information being furnished. The learned counsel for the appellants submitted that such a requirement has to be read into an Attestation Form. We find no reason to accept such contention. There was no specific requirement to mention as to whether any case is pending or whether the applicant had been arrested. In view of the specific language so far as column 12 is concerned the respondent cannot be found guilty of any suppression." The Apex Court held that the requirement was to indicate whether the candidate had ever been convicted by a Court of law or detained under any State/Central preventive detention laws for any offence, which is quite different from arrest in any case or the pendency of a case. On the facts of that case, the Supreme Court arrived at the conclusion that, in view of the specific language of Column No. 12, the respondent cannot be found guilty of suppression of facts. The conclusion arrived at by the Supreme Court in the above case is based on the peculiar facts of that case. However, the facts obtaining in the present case are quite different. Column No.18 in the Registration Form filled up by the present petitioner, required him to indicate whether he had earlier been involved in any criminal case and if so, to give the details of such case. The petitioner has boldly answered 'no' to this column when, to his knowledge, a criminal case was pending against him at that point of time. In the case before the Supreme Court, the decision of the Supreme Court was based on the nature of the information elicited from the candidate whereas in the present case, it boils down to whether the petitioner has truthfully disclosed the correct information, or not. The Court is constrained to observe that the present petitioner has stated false information against Column No.18. Whether it is a genuine misunderstanding or a deliberate attempt to misguide the authorities, is not in the purview of this Court to decide. The fact remains that the information stated by the petitioner at the relevant point of time was false to his knowledge. Whether it is a genuine misunderstanding or a deliberate attempt to misguide the authorities, is not in the purview of this Court to decide. The fact remains that the information stated by the petitioner at the relevant point of time was false to his knowledge. In view of the above, the Court cannot find fault with the respondents in discharging the petitioner before he completed his training period. 17. It is a different matter that the petitioner has now been acquitted in the criminal case. The acquittal has happened much later, and cannot relate back to the day on which he filled up the Registration Form. Had the petitioner disclosed correct information and answered 'yes' to Column No.18, it could have been possible that the respondents would have continued him in service, subject to the outcome of the criminal case, as has been done in other cases, as submitted by the learned counsel for the petitioner. 18. Reverting to the second judgment relied upon by the learned counsel for the petitioner in the case of Joginder Singh v. Union Territory of Chandigarh And Others (supra), that was a case where the appellant therein had not concealed the fact that a criminal case had been registered against him but had been denied appointment, in spite of the fact that he had been acquitted in the said case. In the context of the factual position obtaining in that matter, the Supreme Court held that the appellant before it had not concealed the fact of the registration of the criminal case against him and even in terms of the relevant Rules, acquittal in a criminal case qualified him for appointment, as he successfully fulfilled all other requisites. It was further held that the police authorities cannot sit over a judgment of the Court and deny the appellant appointment. This would be akin to vicarious punishment, which is impermissible in law. The judgment of the High Court quashing and setting aside the judgment of the Central Administrative Tribunal, directing the appointment of the appellant was, therefore quashed and set aside. A reading of the above facts makes it obvious that the factual matrix of the present case is on a totally different footing. The judgment of the High Court quashing and setting aside the judgment of the Central Administrative Tribunal, directing the appointment of the appellant was, therefore quashed and set aside. A reading of the above facts makes it obvious that the factual matrix of the present case is on a totally different footing. Whereas the appellant in the case before the Supreme Court had truthfully disclosed the correct information, in the present case, the true state of affairs has been concealed by the petitioner, by writing 'no' to Column No.18 when, in fact, he was involved in a criminal case at that point of time. The principles of law enunciated by the Supreme Court in Joginder Singh v. Union Territory of Chandigarh And Others (supra) would, therefore, not apply in the present case. 19. An argument has been advanced by learned counsel for the petitioner that Column No.18 in the Registration Form should be read subject to Clause 41 of the Gujarat Police Manual, 1975. Clause 41(1) is reproduced hereinbelow: "41. Recruitment of a person Convicted of an offence - (1) Conviction by itself should not be considered as a disqualification for Government service, but each case should be considered in its merits, with due regard to the nature of the offence for which the person concerned is convicted. Ordinarily there should be no objection to recruiting to Government service a person, though he may have been convicted by a Court or has been detained in a Borstal School after such a conviction, provided the offence for which he was convicted did not involve moral turpitude or an antisocial attitude" As stipulated in the said clause, though conviction by itself would not be considered as a disqualification for Government service, each case should be considered on its own merits with due regard to the nature of the offence for which the person is convicted. In the view of this Court, there is no clash between Clause 41 of the Gujarat Police Manual and Column No.18 of the Registration Form. Column No.18 only requires the candidate to disclose information whether he or she has earlier been involved in any criminal case, or not, and to give details if so involved. Column No.18 is a column meant only for eliciting the required information regarding prior involvement in a criminal case. Column No.18 only requires the candidate to disclose information whether he or she has earlier been involved in any criminal case, or not, and to give details if so involved. Column No.18 is a column meant only for eliciting the required information regarding prior involvement in a criminal case. It is nowhere stated in the said column that a person who discloses true information would be disqualified from Government service. It is true that the petitioner was not convicted in the criminal case against him but was later acquitted and the appeal filed by the complainant has been dismissed. Clause 41 only speaks of conviction and the consideration of a convicted candidate for Government service. It has nothing to do with the disclosure of true and correct information regarding involvement in a criminal case. There is, therefore no relation between Column No.18 in the Registration Form and Clause 41 of the Gujarat Police Manual, 1975. The petitioner was required to disclose information regarding his involvement in a criminal case. The aspect whether the case involves an offence of moral turpitude or antisocial activities is not relevant at all. 20. Insofar as the Registration Form filled up by the petitioner is concerned, it is expected that a candidate who aspires to join the Police force would disclose correct information, more especially because, at the end of the form, the petitioner has signed an Undertaking that all the details disclosed in the Registration Form are true and correct. It transpires from the affidavit in reply filed by respondent No.2 that, pursuant to the submission of the Registration Form filled in by the petitioner, an inquiry was made by the DGP office, Gandhinagar, wherein it was found that a complaint had been registered against the petitioner vide FIR being IC. R.No.386 of 2007 under Sections 143, 467, 148, 149, 330, 365, 342 of the Indian Penal Code and under Section 135(1) of the Bombay Police Act, 1951, at Vatva Police Station. Pursuant to the said FIR, the petitioner was also arrested on 28.06.2007 and a Chargesheet was filed on 01.11.2007 before the Court of learned Judicial Magistrate, First Class, Gheekanta, Ahmedabad. Undoubtedly, the petitioner has not disclosed this relevant information in the Registration Form. This act of the petitioner amounts to a suppression of material facts and deliberately giving wrong information. 21. Undoubtedly, the petitioner has not disclosed this relevant information in the Registration Form. This act of the petitioner amounts to a suppression of material facts and deliberately giving wrong information. 21. This leads us to the aspect whether, in discharging the petitioner from service, the respondents have violated the principles of natural justice, or not. 22. The order dated 20.11.2010, appointing the petitioner as a Trainee Sub Inspector of Police (Unarmed), clearly states that the said appointment is purely on an adhoc basis, in a fixed salary. Condition No.2 of the said order reiterates that the appointment is adhoc and whenever found necessary, it could be terminated without prior notice. As such, the petitioner has not been appointed in the regular cadre but has only been inducted as a Trainee. As per the conditions of his appointment, the petitioner would have to undergo a training period of one year and a further probationary period of eighteen months, during which time he would undergo Commando training. It is only after the satisfactory completion of the above training and probation periods that the petitioner would be appointed as an Assistant Police Sub Inspector (Unarmed). Even then, the services of the petitioner would not be in the regular establishment, as is evident from Condition No.27 of the appointment order which states that, only after a period of five years would the petitioner be absorbed in the regular establishment. From the above, it is clear that at the relevant point of time when the impugned order dated 14.09.2011 was passed, the status of the petitioner was not that of a regular employee but was of an adhoc trainee Assistant Police Sub Inspector, whose services could be terminated at any point of time without prior notice. The petitioner was very well aware of the terms and conditions of his service and has accepted them without demur. Moreover, the petitioner has signed an Undertaking in the Registration Form that the information furnished by him is true and correct. It is only because of the fact that the information furnished in Column No.18 by the petitioner turned out to be incorrect and false, that the impugned order dated 14.09.2011 has been passed against him. The petitioner has only himself to blame for this action of the respondents. It is only because of the fact that the information furnished in Column No.18 by the petitioner turned out to be incorrect and false, that the impugned order dated 14.09.2011 has been passed against him. The petitioner has only himself to blame for this action of the respondents. The Court does not find any violation of the principles of natural justice in the said act of the respondents, as there was no obligation on their part to have granted an opportunity of hearing to the petitioner by issuing a notice or conducting a departmental inquiry, as the petitioner had not acquired the status of a regular employee but had been appointed purely on an adhoc basis, as a trainee. The petitioner had not even completed the full duration of his training, leave alone the probationary period. 23. The petitioner was very well aware of the fact that a criminal case was pending against him on the date on which he filled up Column No.18 of the Registration Form. In spite of such knowledge, the petitioner has stated 'no' regarding his prior involvement in the said case. The explanation now rendered on behalf of the petitioner that he genuinely misunderstood Column No.18, is totally unconvincing, as the language of the said column is very clear. The petitioner is well conversant with the vernacular Gujarati language in which the Form is couched. Besides, it is not his case that he does not understand the language. His only defence is that he was under a genuine impression that only the details of conviction were called for and not of involvement in a criminal case. Be that as it may, whether the petitioner furnished false information on the basis of a misapprehension, or deliberately, the fact remains that the information furnished by him in Column No.18 of the Registration Form is false. The petitioner has, therefore also given a wrong undertaking that the information furnished by him is true and correct. For the above reasons, it cannot be said that the action of the respondents in discharging the petitioner from training is unjustified, illegal or bad in law. 24. A submission has been advanced that, since the petitioner was selected after a regular process of recruitment, his services were liable to be regularised after a period of five years, therefore he should have been heard before the impugned order was passed. 24. A submission has been advanced that, since the petitioner was selected after a regular process of recruitment, his services were liable to be regularised after a period of five years, therefore he should have been heard before the impugned order was passed. This submission is based upon conjecture, as before the petitioner could have attained the status of a regular employee, his services were terminated during the adhoc training period. This submission, therefore merits rejection. 25. Considering the case of the petitioner from all angles, this Court is unable to grant the relief prayed for by the petitioner. There is no illegality or irregularity attached to the impugned order of termination. No right of the petitioner, leave alone any legal or fundamental right has been breached, so as to persuade the Court to interfere in exercise of its writ jurisdiction. 26. The petition, being devoid of merit, deserves to be rejected. It is, accordingly rejected. Rule is discharged. There shall be no orders as to costs.