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Rajasthan High Court · body

2016 DIGILAW 448 (RAJ)

Kamal Singh Meena v. Union of India

2016-03-29

ALOK SHARMA

body2016
Hon'ble SHARMA, J.—The petitioner is aggrieved of the order dated 19.06.2015, passed by the Additional Chief Security Commissioner, Northeast Frontier Railway, Maligaon, Guwahati whereby he has been discharged from training after being recruited as a Constable in the Railway Protection Special Force (hereinafter “RPSF”) for the purported reason of his character and antecedent verification exercise eliciting information from the D.M., Alwar that Police Case No.119/07 for offences under Sections 143, 323, 324, 341 IPC was instituted against him at Kotkashim Police Station and he was under trial therefor. It was further stated in the impugned order that the aforesaid fact, having been suppressed and not set out in the Attestation Form submitted by the petitioner, entailed violation of para No.3 of the Attestation Form consequent to which he was rendered unfit for Government service as per Rule 52.2 & 67.2 of Railway Protection Force Rules, 1987 (hereinafter “the Rules of 1987”) and liable to be discharged with immediate effect. 2. The facts not in dispute are that the petitioner was selected to the post of Constable in RPSF and called up for training vide letter dated 05.10.2014 which he joined on 01.11.2014. Four months thereafter on or about 25.05.2015, the petitioner was served a letter requiring him to report to Headquarter of 4th Battalion, RPSF, New Jalpaiguri for further orders. The petitioner thereafter by the impugned order dated 19.07.2015 was discharged from service. 3. What now transpires from the petition is that a criminal case No.53/2009 (FIR No.119/2007) was registered at Police Station Kotkashim whereunder the petitioner along with his family members was made an accused for alleged offences u/Secs. 143, 323, 324, 341 IPC resulting from an altercation in front of his house. On completion of investigation, the petitioner was challaned for offences under Secs. 148, 323-323/149, 324, 341 IPC as were others. The incident apparently being one between two groups in the village, the criminal case was compromised qua offences under Secs. 341 and 323 IPC. In the course of trial for the remainder offences, all prosecution witnesses including the complainant himself turned hostile and refused to regurgitate their case and in fact totally disavowed it. Consequently, the petitioner and other were acquitted by the trial court vide judgment dated 06.04.2010. 4. Thereafter on applications being invited for recruitment to the post of Constable in RPSF the petitioner applied, was selected and called for training. Consequently, the petitioner and other were acquitted by the trial court vide judgment dated 06.04.2010. 4. Thereafter on applications being invited for recruitment to the post of Constable in RPSF the petitioner applied, was selected and called for training. The petitioner in the process of selection was also required to fill up an Attestation Form for verification of his character and antecedents. The Attestation Form indeed cautioned that the furnishing of false information or suppression of any factual information would be a disqualification and likely to render the candidate unfit for employment under the Government. Clause 12(?) of the Attestation Form required the applicant to state as to whether he had ever been prosecuted, Clause 12(?) whether the applicant had earlier been fined by a Court of Law, Clause 12(?) whether the applicant had earlier convicted by any Court of Law for an offence and Clause 12(?) whether any criminal case was pending against the applicant at the time of filling up the Attestation Form. The petitioner's response was negative (no) to all the aforesaid questions. 5. On the RPSF requiring the District Magistrate, Alwar, wherefrom the petitioner hails, to verify the contents disclosed in the Attestation Form by the petitioner, he informed the respondents-Railways vide his letter dated 31.03.2015 that the petitioner was suffering a criminal trial, following a “challan” resulting from investigation in the FIR No.119/2007 dated 26.07.2007 for offences under Section 143, 323, 324, 341 IPC. This report from the District Magistrate, Alwar entailed a conclusion by the respondents-Railways that the petitioner had suppressed requisite information in his Attestation Form rendering him unfit for government service under Rules 52.2 and 67.2 of the Rules of 1987 which read as under : Rule 52.2. Where after verification, a recruit is not found suitable for the Force, he shall not be appointed as a member of the Force. Rule 67.2 direct recruit selected for being appointed as enrolled member, till such time he is not formally appointed to the Force, is liable to be discharged at any stage if the Chief Security Commissioner for reasons to be recorded in writing, deems it fit so to do in the interest of the Force.” 6. Subsequently, the petitioner was discharged by the impugned order dated 19.06.2015. Hence this petition. 7. Mr. Subsequently, the petitioner was discharged by the impugned order dated 19.06.2015. Hence this petition. 7. Mr. Kawal Singh Loha, appearing for the petitioner submitted that no doubt the response by the petitioner to the question set out in Clause 12(?) of the Attestation Form as to whether he had even been prosecuted was erroneous. Counsel however submitted that the answer to Clause 12(?) ought not to have been seen in isolation but in conjunction with the answers to Clause 12(?)(?)(?) where the petitioner had rightly answered that neither was there any criminal case pending against him in any Court of Law at the time of filling up the Attestation Form, nor he had been fined or convicted by any Court of Law for any offence. It was submitted that the petitioner is from a rural background and the nuances of a difference between non-prosecution and acquittal in a criminal case were not appreciated by him. It was further submitted that the fact that the petitioner was acquitted by the trial court vide judgment dated 06.04.2010 for offences under Sections 148 & 324 IPC and offences under Section 323 & 341 IPC had been compromised between the complainant and the petitioner, and the nature of the charges against him make it evident that no seriousness attached to the petitioner's prosecution. The criminal trial was evidently oppressive and vexatious as the petitioner's prosecution was obviously false with the complainant and his witnesses turning hostile. The petitioner should not be twice condemned for such a trial in first suffering a false case and then loosing his hard earned job for it. Further the entire episode was concluded to the petitioner's benefit about three year prior to the commencement of process of recruitment of Constables in RPSF. 8. Counsel then submitted that the nature of the questionnaire in the Attestation Form is also indicative of the fact that previous prosecution leading to acquittal was not material, as it could not be in law whereunder acquittal entails a clean chit to an accused to which no disability can attach. It was submitted that in terms of the Attestation Form, every trivial inaccuracy in the information supplied could not entail a candidate being declared unfit, without anything more, for employment under the Government. It was submitted that in terms of the Attestation Form, every trivial inaccuracy in the information supplied could not entail a candidate being declared unfit, without anything more, for employment under the Government. It was submitted that only an inaccuracy as to a material fact in supplying information under the Attestation Form would give discretion to the Appointing Authority to declare a candidate unfit. Conversely an irrelevant factual inaccuracy in information supplied having no bearing in law to suitability was not sufficient for a mechanical declaration of an applicant being unfit for employment in Government. It was submitted that the impugned order of discharge dated 19.06.2015 is in fact also vitiated for being based on a misleading report of the District Magistrate, Alwar (dated 31.03.2015) that the petitioner was under trial when in fact the petitioner had been acquitted as early as 06.04.2010. The author of the impugned order dated 19.06.2015 has thus exercised his discretion on incorrect facts overlooking the correct ones. Counsel further submitted that the impugned order is also vitiated for violation of principles of natural justice as the petitioner was not given any opportunity to contest prior to the conclusion reached by the Additional Chief Security Commissioner, N.F. Railway that he was unfit for government service. Counsel emphatically submitted that it is universally known that unemployment is the greatest human scourge and to perfunctorily discharge a selected candidate without reference to the correct facts is wholly arbitrary and hence liable to be set aside. Further the offences alleged against the petitioner were not of moral turpitude but of an alleged altercation in front of his house where his whole family was falsely made an accused. The incident was reflective not of the criminal character of the petitioner but local stresses and politics which subsequently ended with the petitioner's acquittal based on a compromise and the complainant and his witnesses became hostile before the trial court denying the very incident at the foundation of FIR No.119/2007 and the petitioner's prosecution. Counsel finally submitted that in the event the impugned order of discharged dated 19.06.2015 is not set aside, the petitioner, a poor agriculturist would be denied his lifeline to livelihood. 9. In support of his contentions, Mr. Loha relied upon the judgments of the Apex Court in the case of Commissioner of Police & Ors. Counsel finally submitted that in the event the impugned order of discharged dated 19.06.2015 is not set aside, the petitioner, a poor agriculturist would be denied his lifeline to livelihood. 9. In support of his contentions, Mr. Loha relied upon the judgments of the Apex Court in the case of Commissioner of Police & Ors. vs. Sandeep Kumar ( (2011) 4 SCC 644 ); Ram Kumar vs. State of Uttar Pradesh & Ors. ( (2011) 14 SCC 709 ) and the judgment of this Court in case of Suryabhan Singh Solanki vs. State of Rajasthan & Ors. (2012 (3) WLC (Raj.) 455 = 2012(3) RLW 2320) as also in Rajesh Suman vs. State of Rajasthan & Anr., SBCWP No.8937/2015, decided on 21.08.2015. It was contended that the Apex Court in the case of Sandeep Kumar (Supra) taking a humane and realistic view of life matters to the exclusion of overtly moralistic view has held that even though the applicant had not mentioned in the application form that he was involved in a criminal case under Section 325/34 IPC, he may have also done so out of the fear that it would entail automatic disqualification. It was held that prosecution for an offence under Section 325/34 IPC was not a serious offence such as murder, dacoity or rape to entail holding of an applicant unsuitable for government service. The Apex Court has commended a more lenient view by the Courts in such matters. Counsel submitted that in the case of Ram Kumar (Supra) the Apex Court held that the exercise of verification of character and antecedents for public employment is not mechanical in nature but one to evaluate the suitability of the applicant for public office and hence an automatic rejection of the candidature of a candidate for suppression of the fact of a criminal case (more so in which he has been acquitted) should not necessarily follow. The evaluation of a candidate's suitability, Apex Court held, for appointment ought to be done with due application of mind. 10. Per contra, Mr. Shailesh Prakash Sharma, appearing for the respondents-Railways submitted that the petitioner has only himself to blame for having supplied incorrect information in response to the question set out in Clause 12(?) of the Attestation Form where he was required to state as to whether he had ever been prosecuted. 10. Per contra, Mr. Shailesh Prakash Sharma, appearing for the respondents-Railways submitted that the petitioner has only himself to blame for having supplied incorrect information in response to the question set out in Clause 12(?) of the Attestation Form where he was required to state as to whether he had ever been prosecuted. Counsel submitted that now on his own admission, the petitioner was indeed prosecuted in criminal case albeit acquitted subsequently on the basis of a compromise and the complainant and his witnesses turning hostile as reflected in the judgment dated 6.4.2010. It was submitted that the acquittal of the petitioner was of no event as on the facts on record the petitioner was obviously guilty of suppression of fact. The petitioner was under an obligation to disclose the correct information with regard to his past prosecution albeit ending in an acquittal in view of the clear warning in the Attestation Form that the furnishing of false information or suppression of any factual information would be a disqualification likely to render the candidate unfit for employment under the Government. It was submitted that the petitioner did not heed the said warning in the Attestation Form and hence has to bear the consequences. Counsel relied upon the judgments of the Apex Court in the cases of Delhi Administration through its Chief Secretary and Ors. vs. Sushil Kumar ( (1996) 11 SCC 605 ), Kendriya Vidyalaya Sangathan & Ors. vs. Ram Ratan Yadav ( (2003) 3 SCC 437 ), A.P. Public Service Commission vs. Koneti Venkateswarulu & Ors. ( (2005) 7 SCC 177 ), Union of India & Ors. vs. Bipad Bhanjan Gayen ( (2008) 11 SCC 314 ) and R. Radhakrishnan vs. The Director General of Police & Ors. ( 2008 (1) SCC 660 ) in support of his contention that the standard expected of a person intending to serve in uniformed force is high and where a deliberate attempt is made to withhold relevant information, it is that omission of withholding the relevant information, not its relevance, which leads to his disqualification/termination of service during probation period. Mr. Sharma submitted that the problem and resultant disqualification of the petitioner lies not in the prosecution but suppression of information thereof and the fact of acquittal is of no consequence at all. Mr. Mr. Sharma submitted that the problem and resultant disqualification of the petitioner lies not in the prosecution but suppression of information thereof and the fact of acquittal is of no consequence at all. Mr. Sharma submitted that the Apex Court has so held particularly where employment was sought as a police officer requiring higher level of integrity as such applicant is expected to uphold the law. 11. Heard. Considered. 12. The effect of suppression of a fact in an application form/Attestation Form on the suitability for government employment is a matter which cannot be addressed one way or other without reference to the overall facts of a given case. The answer is not of a slot machine uniformity. Where such a question arises, as in the present case, it is the duty of the court to take a considered and nuanced view of the matter and address not the mere form but substance. The purpose of verification of the character and antecedents of an applicant seeking public employment is to evaluate his suitability. The purpose of the details of a criminal case in which an applicant has been involved is to evaluate its bearing on the suitability of the selected candidate to discharge his duties on the post to which he is selected. “Unsuitability” has a longer connotation than mere one instance of erring. The context of the error cannot be overlooked. Thus an employer while evaluating the suitability of a selected candidate coming out of a fiercely contested space is under a duty to take into consideration the circumstances of the alleged incorrect information, the nature of the charges framed in the course of prosecution, the role assigned to the selected candidate as an accused and the outcome of the criminal case as also the reasons therefore. A duly selected candidate cannot be shut out from obtaining employment as per his merit and without good cause. 13. The Apex Court in the case of Sandeep Kumar (Supra) has taken a lenient and pragmatic view on the consequences to follow from suppression of fact regarding pendency of criminal case attributable to a candidate seeking appointment to public office more particularly when the suppression related to minor not major offences. Para 12 of the aforesaid Judgment may be appropriately, reproduced hereunder: “12. Para 12 of the aforesaid Judgment may be appropriately, reproduced hereunder: “12. It is true that in the application form the respondent did not mention that he was involved in a criminal case under Sections 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified. In 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.” 14. In Ram Kumar (Supra), the Apex Court held, albeit in the background of a government order, that as the object of verification of the character and antecedents for public employment in respect of a successful candidate was to ensure his suitability for public office, hence a mechanical rejection of the candidature of a candidate for reason of suppression of the fact of a pending criminal case should not necessarily and inevitably follow. It was held that the purpose of verification of character was to evaluate a selected candidate's suitability for appointment and such evaluation ought to be done with due application of mind. I am of the considered view that the observations of the Apex Court in the case of Ram Kumar (Surpa) would generally apply to cases where a selected candidate is sought to be excluded from public employment for reason of his failure to disclose his involvement in a criminal case of minor nature in which he was acquitted. 15. It is no doubt true that the Judgments of Apex Court in the cases of Sandeep Kumar (Supra) and Ram Kumar (Supra) have been noted by the Apex Court, along-with other Judgments rendered to the contrary, in the case of Jainendra Singh vs. State of U.P. ( (2012) 8 SCC 748 ) and the matter referred to a Larger Bench for an authoritative pronouncement. Yet the Judgments of the Apex Court in the two cases; Sandeep Kumar (Supra) and Ram Kumar (Supra) were not over-ruled being Judgments of Coordinate Bench of equal strength. Yet the Judgments of the Apex Court in the two cases; Sandeep Kumar (Supra) and Ram Kumar (Supra) were not over-ruled being Judgments of Coordinate Bench of equal strength. Importantly even in Jainendra Singh (Supra) a reference to para 29.4 would indicate that the Apex Court has held that the suppression of the fact of a pending criminal case by the candidate in the course of the selection process by itself would not be enough per se to exclude him from appointment but allegations in the pending criminal case would have to be evaluated for the candidate's suitability with reference to the “nature of employment” to which appointment is to be made as well as other aspects”. 16. This Court has comprehensively dealt with the issue of denial of public employment on the ground of pendency of criminal cases, more so where a selected candidate has been acquitted in a criminal case even subsequent to his selection. Reference can be made to the Judgment in the case of Rai Sahab vs. State of Rajasthan & Anr. (2013(3) WLC (Raj.) 483 = 2013(2) RLW 1714). Therein considering various Judgments of the Apex Court and this Court it was observed that in the present era of rampant unemployment depriving an individual from the valuable right of employment on unsubstantial grounds would be unjust and a welfare state as a model employer ought not to be allowed to circumvent the rights of a selected candidate by quibbling about aspects which do not go to the root of the matter- unless there has been an egregious attempt at fraud and / or misrepresentation to obtain public employment and unless the lacunae found was ex-facie destructive of the suitability of a candidate. This is not so in the present case. 17. The caution set out in the Attestation Form stated that the furnishing of false information or suppression of any factual information in the Attestation Form would be a disqualification likely (emphasis mine) to render the candidate unfit for employment under the Government. The Cambridge Advanced Learner's Dictionary 3rd Edition defines the work “likely” to mean “probable : possible”. The work “likely” is thus to be understood contra distinguished from the word “definitively” and “inevitably”. The appointing authority thus had a discretion. The Cambridge Advanced Learner's Dictionary 3rd Edition defines the work “likely” to mean “probable : possible”. The work “likely” is thus to be understood contra distinguished from the word “definitively” and “inevitably”. The appointing authority thus had a discretion. Incorrect information as in the instant case quite trivial in nature in the context of the fact that no material misstatement (affecting suitability employ ability) had been made by the petitioner in his Attestation Form, was a matter which ought to have engaged the active attention of the Appointing Authority. The Appointing Authority could not without evaluation of the effect of, the nature of allegations, gravity of offences and the petitioner's acquittal about three year prior to the commencement of the recruitment process of Constable have mechanically concluded as it did, that the petitioner was unfit for employment. I am of the considered view that the Appointing Authority was under a duty of fairness and reasonableness as mandated by Article 14 of the Constitution of India to take an overall view of the matter and the possibility of the petitioner, being from a rural background, to mistake an acquittal as non-prosecution—legality apart a layman can reach this potential conclusion. This has not been done in the instant case and the impugned order dated 19.06.2015 discharging the petitioner has been passed as if out of a slot machine where discharge in the facts of the case was the only inevitable consequence and not a possible consequence of a minor misstatement of fact. I am of the considered view that the judgments relied upon by the counsel for the respondents-Railways turned on their own facts and cannot be construed to mean that even suppression of a piece of information quite irrelevant to the evaluation of the character and antecedents of a candidate must necessarily entail his disqualification and render him unfit for employment under the government. 18. The above conclusion is buttressed by the fact that the petitioner had nothing to gain from suppressing the factum of his having been prosecuted in a criminal case in which he had been acquitted. The disclosure of the factum of involvement in a criminal case in which the petitioner was acquitted could not even by any stretch of imagination have entailed his being found unsuitable for government service in view of reasons analogous to Section 12 of the Act of 1958. The disclosure of the factum of involvement in a criminal case in which the petitioner was acquitted could not even by any stretch of imagination have entailed his being found unsuitable for government service in view of reasons analogous to Section 12 of the Act of 1958. If a conviction for all offence not grave in nature and following probation cannot entail a disability in law, how can acquittal entail one? I am of the view that a suppression of fact can entail finding of unsuitability of a candidate in government service on that count only in the event the suppression was beneficial. This leads to the conclusion that an irrelevant misstatement of fact as in the instant case, cannot result in the declaration of an applicant as unsuitable for government service. 19. The upshot of the aforesaid discussion is that the impugned order of discharge dated 19.06.2015 has been passed without any application of mind and is founded upon an incorrect report of the District Magistrate, Alwar based on the report of the Superintendent of Police, Alwar that the petitioner was facing a criminal trial when in fact the petitioner had been acquitted in the said trial based on a compromise / the complainant and his witnesses turning hostile as reflected in the judgment dated 06.04.2010. I am of the considered view that the Additional Chief Security Commissioner, North EASt Frontier Railway, Maligaon, has erred in exercise of his discretion in holding a trivial incorrect statement necessarily entailing the petitioner's discharge. The conclusion of this Court is also founded upon reason analogous to Section 12 of the Probation of Offenders Act 1958 (hereinafter “the Act of 1958”) whereunder even a conviction for a less offence with sentence of less than 7 years of imprisonment cannot be a disqualification when the accused is allowed the benefit of probationer the Act of 1958. The intent of law quite clearly is not condemning even of an accused convicted for less grave offences and it would be a travesty of Justice and wholly unjust to apply such condemnation to an accused acquitted in a criminal trial based on compromise / the complainant and his witnesses turning hostile evidencing falsity of the case or in any event putting into serious question the foundation of the criminal trial of an accused in the first place. 20. 20. I would therefore in the circumstances quash and set aside the impugned order dated 19.06.2015. The petitioner shall be entitled to rejoin the training with the ongoing batch or the immediately following batch, as the case may be, relating to recruitment of Constables by the Railway RPSF.