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2019 DIGILAW 1897 (JHR)

Gaina Soren v. State of Jharkhand

2019-11-21

H.C.MISHRA, RAVI RANJAN

body2019
JUDGMENT : I.A. No. 331 of 2019 This interlocutory application has been filed for condoning the delay of 07 days which has occurred in preferring this appeal. 2. Heard learned counsel for the appellant as well as learned counsel for the respondents. 3. Having regard to the averments made in the interlocutory application, the same is allowed and the delay of 07 days in preferring the present appeal is hereby condoned. L.P.A. No. 10 of 2019 4. This intra-court appeal is directed against the judgment dated 19.11.2018 passed by a learned Single Judge of this Court in W.P.(S) No. 456 of 2017 by which the writ petition filed by the petitioner-appellant challenging the order of punishment imposed upon him by the Disciplinary Authority and confirmed by the Appellate Authority, has been dismissed. 5. Short facts which would be necessary for consideration of lis stands enumerated as under. 6. The petitioner was appointed as Constable (Police Force No. 773) at Deoghar District Police Centre under Advertisement No. 01/2010 and he joined as such on 01.09.2011. At the time for applying for the post, a declaration was to be made by the applicant as to whether he was involved in any police/criminal case either before the Court or the police or not. Against this the applicant-writ petitioner had declared that there is no criminal case pending against him and further that if the declaration is found to be false then his candidature and appointment would be liable to be cancelled without further notice. These declarations were made despite the fact that a criminal case being Sikaripara P.S. Case No. 54/2005 under sections 147/148/149/452/380/342/427/120B of the Indian Penal Code was pending and in that case charge-sheet was submitted on 08.06.2007 itself, i.e., much before the date of applying for the post. Subsequently, he was convicted in the said case by the Trial Court and when this matter came to the knowledge of the concerned, he was served with a show-cause notice and eventually the departmental proceeding No. 19/14 was initiated against him which culminated in the order of dismissal dated 31.12.2014 passed by the Disciplinary Authority who was Superintendent of Police, Deoghar (Annexure-3). The order of the Disciplinary Authority was assailed before the Appellate Authority-cum-Deputy Inspector General of Police, Dumka who also rejected his appeal vide Annexure-5 vide order dated 13.10.2016. Both the orders were put to challenge by filing the writ petition. The order of the Disciplinary Authority was assailed before the Appellate Authority-cum-Deputy Inspector General of Police, Dumka who also rejected his appeal vide Annexure-5 vide order dated 13.10.2016. Both the orders were put to challenge by filing the writ petition. 7. Learned Single Judge, after considering that the factum of the charge of suppression of material facts at the time of appointment and that too of a grave nature of being involved in a criminal case in which the appellant was involved, was fully proved as admitted by the writ petitioner himself and as such the writ petition was dismissed. While considering the case of the writ petitioner, the learned Single Judge has considered various judicial pronouncements including one rendered by the Apex Court in Avtar Singh –vs- Union of India & Ors., reported in (2016) 8 SCC 471 . The paragraph-38 thereof where the conclusion has been summarised by the Apex Court, has been quoted in the impugned judgment. Learned Single Judge has come to the conclusion that the allegation in the criminal case cannot be said to be trivial in nature and that was not of the nature that, even if it would have been disclosed, would not have rendered the incumbent unfit for the post in question. The issue of conviction of the writ petitioner was also noticed. It has also been noticed that subsequently the Appellate Court has acquitted the writ petitioner and others giving them the benefit of doubt. 8. We have heard learned counsel for the appellant and the learned counsel for the Respondents. 9. Learned counsel for the appellant has chiefly raised two issues before this Court. First is that second show-cause notice on the point of quantum of punishment was never issued in the matter and the second is that even if such omission or suppression was there, as per the decision of the Hon’ble Supreme Court in Avtar Singh (Supra), it was required to be seen after acquittal as to whether such suppression or omission would be of condonable nature or not. 10. So far as the first issue, i.e., of issuance of second show-cause is concerned that would not be tenable in view of the fact that the Disciplinary Authority himself was the Enquiry Officer in the matter which is apparent from Annexure-3 (order of dismissal). 10. So far as the first issue, i.e., of issuance of second show-cause is concerned that would not be tenable in view of the fact that the Disciplinary Authority himself was the Enquiry Officer in the matter which is apparent from Annexure-3 (order of dismissal). Reference in this regard is made to a decision of the Hon’ble Apex Court rendered in the case of Managing Director, ECIL., Hyderabad & Others –vs- B. Karunakr & Ors. reported in (1993) 4 SCC 727 in which it has been held in clear terms that a disciplinary proceeding is broken into two stages only if the Enquiry Officer is other than the Disciplinary Authority and in such case, before imposing the penalty or punishment such authority may be required to supply a copy of enquiry report and invite the comments of the delinquent. However, in the case in hand, the Disciplinary Authority himself was the Enquiry Officer and he had given him opportunity to defend himself, therefore, there was no requirement to hear him again. The impugned order discloses that copy of the charge-sheet was given to which the writ petitioner was suspended then proceeding was initiated by supplying him the copy of the charge-sheet and in that, everything has been considered including his defence and, after considering the entire materials on record, the Disciplinary Authority cum-Enquiry Officer has come to the conclusion that the case is not of conviction or acquittal but the issue is of suppressing a very important and relevant information which was required to be considered for appointment on the post of Constable in uniformed service. It amounts to a case of fraud. The factum of knowledge of a police case having been lodged against the writ petitioner or the charge-sheet having been submitted in such case in the year 2007 was well within his knowledge as it has never been denied or questioned by him and, thus, it can be inferred that this attempt was deliberate and would amount to a fraud. It is well established dictum that fraud vitiates very solemnity of the entire proceeding. 11. However, in our considered view, the acquittal granting benefit of doubt would not be enough to help the writ petitioner-appellant as issue was regarding his involvement in the concerned criminal act rather the issue was of suppression of material fact which was mandatorily required to be disclosed at the time of appointment. 11. However, in our considered view, the acquittal granting benefit of doubt would not be enough to help the writ petitioner-appellant as issue was regarding his involvement in the concerned criminal act rather the issue was of suppression of material fact which was mandatorily required to be disclosed at the time of appointment. The disciplinary authority-cum-enquiry officer, though the order of punishment was passed before the judgment of acquittal in the criminal case, has considered this aspect of matter in identical terms. Since the employer has conducted the departmental inquiry before passing the order of dismissal on the ground of suppression of vital information which were mandatorily required to be disclosed in the concerned column of the application form, the subsequent acquittal would be immaterial as the incumbent was applying for a post of Police Constable i.e. for a post in Uniformed Service in which criminal antecedent would be one of the necessary ingredients that would be required to be considered at the time of inducting him in service. 12. So far the quantum of punishment is concerned since the action of the writ petitioner would vitiate the entire proceeding of appointment of the writ petitioner on the ground of fraud and since effect of non-disclosure of such vital information was sufficient for his dismissal as per his undertaking also, it would hardly be a case of shocking the conscience of this Court so that quantum of punishment could be interfered. 13. Secondly, it has already been noticed that at the time of disciplinary proceeding, the judgment of acquittal was not available as it was passed much after passing of the final order, i.e., on 29.8.2015, thus the issue of acquittal could not have been considered by the Disciplinary Authority. However, this issue was not even raised before the Appellate Authority by the writ petitioner even though at that point of time the judgment of acquittal was passed. 14. Having regards to the discussions above, we are of the view that no good ground could be set up by the learned counsel for the appellant warranting interference of this Court in the impugned order. 15. In the result this appeal is dismissed.