Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 804 (MP)

SATYA PRAKASH PACHAURI v. DIRECTOR GENERAL

2017-07-06

SANJAY YADAV, SHEEL NAGU

body2017
ORDER : Sheel Nagu, J. No one appears for the rival parties, presumably because of the call given by the M. P. High Court Bar Association to the Advocates to abstain from Court work. 2. The instant Intra-Court Appeal under section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005 assails the final order dated 9-3-2017 in W.P. No. 4533/09 passed by the learned single Judge dismissing the petition in question assailing the order of termination from service on the ground of suppression of material fact in the character verification of having been prosecuted in connection with offences punishable under sections 307, 323, 294, 336 read with 34, Indian Penal Code. The pleadings and the record are perused. 3. Bare facts giving rise to the dispute before the writ Court was that after being appointed as a constable in the Indo-Tibetan Border Police Force (ITBP for brevity) by order dated 3-7-2007, the petitioner joined duties on 14-7-2007 and while he was working on the said post in 37 Bn. ITBP 26 Sector Panchkula (Haryana), a show-cause notice dated 30-8-2008 was issued vide P/4 calling upon the petitioner to show-cause as to why action be not taken against him for having suppressed information in his character verification form or of having been prosecuted for offences punishable under sections 307, 323, 294, 336 read with 34, Indian Penal Code bearing Crime No. 9/04 registered at police station Pichhore, District Shivpuri (M.P.). The petitioner submitted his response where after another show-cause notice dated 23-3-2009, vide P/5 was issued by the respondent No. 3 asking the petitioner to show-cause as to why his services be not terminated by invoking provisions of Rule 17(4) of the Indo-Tibetan Border Police Force Rules, 1994 (for brevity the Rules of 1994) for having suppressed the said information of criminal prosecution (supra) at the time of filing up of verification form. The petitioner vide P/6 responded by admitting the fact of having been prosecuted in the said offence but revealed that the trial ended in acquittal vide order dated 18-1-2008 in Criminal Case No. 95/04 rendered by the Court of Principal Magistrate Juvenile Justice Board, Guna (vide P/8). The petitioner vide P/6 responded by admitting the fact of having been prosecuted in the said offence but revealed that the trial ended in acquittal vide order dated 18-1-2008 in Criminal Case No. 95/04 rendered by the Court of Principal Magistrate Juvenile Justice Board, Guna (vide P/8). 3.1 The reply to the show-cause notice did not find favour with the employer resulting in issuance of impugned order of termination from service dated 23-4-2009 passed by the respondent No. 3 vide P/2, After unsuccessfully approaching the appellate authority, the petitioner visited this Court in W.P. No. 4533/09 (s) which has since been dismissed by the impugned order. 3.2 The fall out, which an act of suppression of criminal prosecution in the character verification form, has over the service of a Government servant, is no more res-Integra in view of the decision of the Apex Court in the case of Avtar Singh v. Union of India and others, 2016(4) M.P.L.J. (S.C.) 332 = (2016) 8 SCC 471 . The said decision after noticing, explaining and reconciling all the earlier conflicting views of various Division Benches of the Apex Court on the said issue including the ones pertaining to uniformed service, laid down the following guiding principles :- 38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarise our conclusion thus : 38.1 Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information. 38.2 While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information. 38.3 The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision. 38.2 While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information. 38.3 The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision. 38.4 In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted :- 38.4.1 In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse. 38.4.2 Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee. 38.4.3 If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee. 38.5 In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate. 38.6 In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case. 38.7 In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper. 38.7 In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper. 38.8 If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime. 38.9 In ease the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of oppression or submitting false information in verification form. 38.10 For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for. 38.11 Before a person is held guilty of suppression Geri or suggestion falsi, knowledge of the fact must be attributable to him. 4. Testing the attending factual matrix on the anvil of the above said law laid down by the Apex Court, the following prominent aspects in the present case come to the fore. 4.1 The factum of suppression of having been prosecuted for the offences mentioned above is not disputed. However, the petitioner was a juvenile at the time of commission of offence in question, i.e. 6-1-2004. More so, the said prosecution culminated into an acquittal by the order dated 18-1-2008 after the trial Court found that none of the prosecution witness, namely, Lalaram (PW-1), Asharam (PW-2) and Keshav (PW-3) alleged any overt act against the petitioner. The allegation of assault was made against co-accused Brij Mohan and not the petitioner. Thus, in the absence of any implicative evidence against the petitioner, lie was acquitted. The allegation of assault was made against co-accused Brij Mohan and not the petitioner. Thus, in the absence of any implicative evidence against the petitioner, lie was acquitted. 4.2 From perusal of the order it is evident that there was not even an iota of evidence against the petitioner and therefore for all legal purposes, the said acquittal can safely be termed as an honourable acquittal and not one based on benefit of doubt. 5. A bare perusal of the order of termination from service dated 23-4-2009 elicits that apart from the factum of suppression of fact regarding criminal prosecution, the Disciplinary Authority has not applied its mind as regards the gravity of the offence, nature of the evidence adduced against the petitioner and the honourable acquittal. 5.1 The Apex Court in the case of Avtar Singh (supra) has contemplated various contingencies which may arise from an act of suppression of information regarding criminal offence and its impact on the prospects of the appointee to continue in service. 5.2 Before proceeding ahead, it would be appropriate to deal with the statutory provision under Rule 22 of the 1996 Rules which the Disciplinary Authority invoked to issue the order of termination. For ready reference and convenience, Rule 22 of the 1996 Rules is reproduced below :- "22. Termination of service on ground of furnishing false/incorrect information at the time of appointment. - The central Government, or as the case may be, the authority as specified in Rule 17, may terminate the service of a person subject to the Act on grounds of furnishing false/incorrect information at the time of appointment of that person in the service. A show cause notice giving one month's time shall be issued to the individual before termination of his service." 5.3 A close scrutiny of the above said provision reveals that the competent Authority is vested with the power of terminating services of an appointee who has submitted incorrect information at the time of appointment in service, by issuing show cause. Thus, the respondent No. 3 has exercised statutory power under Rule 22 for passing the impugned order of termination. The usage of expression "may" in Rule 22 indicates towards the discretion vested with the competent authority to terminate or not to terminate services of the appointee, who has given false information at the time of his appointment. Thus, the respondent No. 3 has exercised statutory power under Rule 22 for passing the impugned order of termination. The usage of expression "may" in Rule 22 indicates towards the discretion vested with the competent authority to terminate or not to terminate services of the appointee, who has given false information at the time of his appointment. The intention of the statute is to impose a corresponding obligation on the competent authority to exercise its discretion in a judicious manner by weighing all the relevant considerations and the impact they may have over the rights of an appointee to continue in service. 5.4 However apart from the aspect of suppression of factum of offence, none all the other relevant factors, i.e., the total absence of implicative evidence, clean acquittal, the petitioner being juvenile at the time of incident in 2004 and whether these aspect would cause any dent in the character of the petitioner rendering him unsuitable for employment in uniformed service, no mind has been applied by the Disciplinary Authority to these relevant aspects before exercising the power conferred upon it by Rule 22 of the 1996 Rules. 6. In view of the above discussions we are of the considered opinion that the discretion vested with the competent authority under Rule 17 has not been exercised in a judicious manner before passing the order of termination from service which has serious adverse consequence of civil nature to the petitioner. 7. The writ Court while dismissing the petition has declined to apply the principles laid down by the Apex Court in Avtar Singh case (supra) by holding that due to enabling statutory provision under Rules 17 and 22 of the 1996 Rules, the law laid down by the Apex Court in Avtar Singh case (supra) is of no avail to the petitioner. 7.1 In view of the above discussions it goes without saying that the said statutory provision in Rule 22 clearly confers discretionary power upon the competent authority to terminate or not to terminate thereby imposing corresponding obligation upon the competent authority to apply its mind to all (lie relevant considerations before exercising the extreme power of terminating service of an appointee, who has furnished false information at the time of appointment. 8. In view of the above the order of the writ Court dismissing the petition in question cannot be upheld. 9. 8. In view of the above the order of the writ Court dismissing the petition in question cannot be upheld. 9. Accordingly the impugned order dated 9-3-2017 passed in W.P. No. 4533/09 and the impugned order of termination dated 23-4-2009, P/2 and the appellate order dated 3-9-2009, P/1 are set aside and the present appeal is allowed to the extent indicated below :- 9.1. On appellant's preferring a fresh representation to the respondent No. 3 along with copy of this order, said authority keeping in mind the law laid down by the Apex Court in Avtar Singh (supra) shall apply its mind to all the relevant considerations explained in this order and re-consider the question regarding retention of the petitioner in service on the post of constable in ITBP Force, by a speaking order as expeditiously as possible preferably within a period of 60 (sixty) days from the date of receipt of copy of this order and take all consequential steps flowing therefrom in accordance with law.