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2016 DIGILAW 3478 (ALL)

ASHOK KUMAR DUBEY v. STATE OF U. P.

2016-10-19

P.K.S.BAGHEL

body2016
JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioner was initially appointed as a Village Watchman in Village Jagdishpur, Police Station Gauriganj, District Amethi on 09th November, 2012 on the recommendation of the Superintendent of Police, Amethi alongwith two other persons. Later a complaint was received by the District Magistrate that the petitioner was convicted on 04th March, 2006 by the Additional Sessions Judge/Special Judge (SC & ST), Sultanpur under Sections 323, 504, 506 I.P.C. read with Section 3(1)(x) of the SC/ST Act. The District Magistrate got an enquiry conducted wherein it was found that the complaint made against the petitioner was correct and the petitioner was convicted in the year 2006. Thus, by suppression of the said fact he has obtained the appointment. On the above facts, the District Magistrate terminated his services vide order dated 12th September, 2014, which the petitioner has challenged in the present writ petition. 2. A counter-affidavit has been filed on behalf of the respondents, wherein it is stated that the petitioner by concealment of fact was able to get the employment, hence his appointment has already been terminated by a speaking and reasoned order after giving opportunity to the petitioner. 3. I have heard learned counsel for the petitioner and learned Standing Counsel. 4. It is contended on behalf of the petitioner that in the application form there was no requirement to furnish the information about the conviction or pendency of the criminal case and as such, there was no question of suppression of fact. No other submission has been made. 5. Learned Standing Counsel submits that an enquiry was conducted in the matter and it was found that the petitioner has been convicted under Sections 323, 504, 506 I.P.C. read with Section 3(1)(x) of the SC/ST Act on 04th March, 2006. He further submits that the principle of natural justice has also been complied with as a show-cause notice was issued to the petitioner and he has submitted his reply. 6. I have considered the rival submissions of learned counsel for the parties and perused the record. 7. Concededly, the petitioner is a convicted person. He was found guilty of Sections 323, 504, 506 I.P.C. read with Section 3(1)(x) of the SC/ST Act by the Additional Sessions Judge/Special Judge (SC & ST), Sultanpur. The petitioner had not disclosed this fact while giving application for employment. 7. Concededly, the petitioner is a convicted person. He was found guilty of Sections 323, 504, 506 I.P.C. read with Section 3(1)(x) of the SC/ST Act by the Additional Sessions Judge/Special Judge (SC & ST), Sultanpur. The petitioner had not disclosed this fact while giving application for employment. Moreover, the Police Officer who has made a recommendation for his appointment, has been awarded punishment of censure entry, which is evident from the order of the District Magistrate itself. The Village Chowkidar performs an important duty and it is pre-supposed that a high level of integrity will be maintained by him as he is appointed to uphold the law at the primary unit of village. A person who has secured service by suppression of fact should not be allowed to remain in Government employment. Moreover, the petitioner was appointed in the year 2012 and within a short span of time it was noticed that he has been appointed on the basis of suppression of fact, therefore, he was terminated in 2014. The appointment of Watchman in a village is a temporary employment and thus, there was no need for the full-fledged disciplinary proceeding. It has not been denied that the petitioner was issued a show-cause notice and he has replied the same. The Supreme Court in the case of Avtar Singh v. Union of India and others, 2016 SCC OnLine SC 726, has held that the suppression of fact with regard to pendency of criminal case or conviction is a serious crime and it will depend upon the facts of the case. The Court has further held that the employer will take a decision whether a person who has got the employment by suppression of fact, should be allowed to work or not. The Court considered its earlier judgments wherein some of the candidates had secured appointment to the post of Police Constable on concealment of fact with regard to pendency of criminal case. In the present case, the petitioner was already convicted. 8. In view of the above, I do not find any error in the order of the District Magistrate. Moreover, the writ jurisdiction under Article 226 of the Constitution of India is not an appellate forum. The Court is not bound to interfere in the matter if the authority concerned has taken a decision after following the principle of natural justice. In view of the above, I do not find any error in the order of the District Magistrate. Moreover, the writ jurisdiction under Article 226 of the Constitution of India is not an appellate forum. The Court is not bound to interfere in the matter if the authority concerned has taken a decision after following the principle of natural justice. The Supreme Court in the case of Syed Yakoob v. K.S. Radhakrishnan and others, AIR 1964 SC 477 , has clarified the scope of writ of certiorari in the following words: “(7) The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or tribunals: these are cases where orders are passed by inferior Courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient on inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, (1955) 1 SCR 1104 : (S) AIR 1955 SC 233 ); Nagendra Nath v. Commr. of Hills Division, 1958 SCR 1240 : ( AIR 1958 SC 398 ) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168 ).” 9. For the reasons stated above, the writ petition lacks merit and it is accordingly dismissed. 10. No order as to costs.