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2023 DIGILAW 1341 (JHR)

Rajendra Sahu v. State of Jharkhand

2023-11-10

S.N.PATHAK

body2023
JUDGMENT : Heard Mr. Diwakar Upadhyay, learned counsel appearing on behalf of the petitioner and Mr Manish Kumar, learned Sr. SC-III assisted by Mr. Rajesh Kumar Jha appearing on behalf of the State. PRAYER 2. The writ petitioner has knocked door of this Court for quashing the order issued vide Memo No. 60/D, dated 31.03.2022 (Annexure-12). Petitioner has further prayed for a direction upon the respondents to immediately reinstate him in service with full back wages, arrears of salary, seniority and all other consequential benefits along with statutory as well as penal interest, which would have been accrued to him. FACTS OF THE CASE 3. According to petitioner, an advertisement for selection of Police Constable was floated vide Advt. No. 01/2004, dated 13.01.2004, fulfilling requisite criteria, petitioner also applied for the said post and submitted the form on 15.02.2004. At the time of filling up of the form, no criminal case was pending against him. After filling up of the application form, all of a sudden, petitioner was arrested on 21.08.2005 in connection with Burmu P.S. Case No. 21/2004, dated 24.05.2004, registered against 12 named accused and 5 – 6 unknown persons, for the offences under Sections 147/ 148/ 149/ 307/ 353 of the Indian Penal Code, under Section 25(1-b)a/ 26/ 27/ 35 of the Arms Act and under Section 17 of the CLA Act, pending before the Court of Additional Judicial Commissioner – XVII, Ranchi. Unaware about lodging of the said case, petitioner was arrested and subsequently granted bail vide order dated 05.12.2005 passed in B.P. No. 1405 of 2005. After his release and after successfully qualifying in all the tests, he was appointed to the post of Constable on 14.12.2005 and was posted in Palamau district Police having Constable No. 1436. After his selection, petitioner was discharging his duties to the satisfaction of the department. 4. On 08.01.2007, on the basis of Character Verification Report, sent by the SSP, Ranchi to the S.P. Palamau, the petitioner was immediately suspended and was asked to submit his show-cause reply against the charge that he suppressed material fact regarding his implication in Burmu P.S. Case No. 21/2004. Petitioner submitted his reply on 12.01.2007 and thereafter, his suspension was revoked and departmental proceeding initiated. Petitioner was served with the charge sheet dated 12.07.2008 alleging therein that he had furnished false information in the application form. Petitioner submitted his reply on 12.01.2007 and thereafter, his suspension was revoked and departmental proceeding initiated. Petitioner was served with the charge sheet dated 12.07.2008 alleging therein that he had furnished false information in the application form. However, the Enquiry officer – cum – Sergeant Major, Palamau, after completion of enquiry, submitted his report on 04.10.2008, exonerating the petitioner from the alleged charges. Petitioner was also honorably acquitted in the criminal case pending against him vide Session Trial No. 109/2007, vide order dated 11.05.2009, passed by the Additional Judicial Commissioner, XVII, Ranchi. After submission of enquiry report dated 04.10.2008 and the fact that the petitioner was duly exonerated in the criminal proceeding on 11.05.2009, the disciplinary authority kept mum for almost five years and suddenly in the year 2013, disagreeing with the previous enquiry report, appointed a new enquiry officer – cum – SDPO, Hussainabad to enquire into the matter afresh. 5. Petitioner also contested the election of ‘Jharkhand Police Mens’ Association, (Palamau Branch) and was elected to prestigious post of Vice President on 27.09.2014 and remained as such until he was transferred to Jamshedpur district police on 21.11.2017. However, after lapse of around six years since submission of second enquiry report way back in the year 2013, the disciplinary authority i.e. S.P. Palamau, slapped the petitioner with second show-cause notice vide Memo No. 3225/Ra.Ka. dated 21.07.2019, whereby and whereunder, he was show-caused as to why not he be inflicted with major punishment enshrined within Rule 824 of the ‘Jharkhand Police Manual’ and was asked to submit second show cause reply within seven days of receipt of said letter, which was duly replied by him on 30.07.2019. However, without considering the reply, the disciplinary authority i.e. Superintendent of Police, Palamau, held the petitioner guilty of the alleged charges and passed an order of major punishment vide Memo No. 3558/Ra.Ka. dated 19.08.2019, inflicting the punishment of forfeiture of increment for one year without cumulative effect which will be equivalent to two black marks. 6. It is further case of the petitioner that during his posting at Jamshedpur, he again contested the election of Jharkhand Police Mens’ Association (Jamshedpur Branch) and was elected to the post of President on 12.12.2020 by defeating his rival which led to publication of fake and defamatory news against him. 6. It is further case of the petitioner that during his posting at Jamshedpur, he again contested the election of Jharkhand Police Mens’ Association (Jamshedpur Branch) and was elected to the post of President on 12.12.2020 by defeating his rival which led to publication of fake and defamatory news against him. Without considering the fact that petitioner was honourably acquitted in the alleged case, the Deputy Inspector General of Police (Personnel), Ranchi recommended for revision/ enhancement of punishment order inflicted upon the petitioner by the disciplinary authority. Thereafter, pursuant to Memo No. 60/D, dated 31.03.2022, the Director General-cum-Inspector General of Police, Jharkhand, taking recourse of provisions as contained in Rule 853-A(a) of the Jharkhand Police Manual, quashed the earlier punishment order dated 19.08.2019 bearing Memo No. 3558/Ra.Ka and inflicted the petitioner with the punishment of dismissal from service with immediate effect under Rule 673(C) of the Jharkhand Police Manual. Being aggrieved, petitioner has knocked door of this Court. ARGUMENTS ADVANCED ON BEHALF OF THE PETITIONER 7. Mr. Diwakar Upadhyay, learned counsel appearing on behalf of the petitioner vehemently urges that the impugned order is not sustainable in the eyes of law and as such the same is fit to be quashed. Learned counsel further argues that petitioner has never tried to place wrong information before the Department. At the time of submission of the application form, no criminal case was either lodged or pending against him and as such there was no occasion to mention regarding pendency of any criminal case against him. The alleged Burmu P.S. Case was lodged on 24.05.2004 whereas the application was filled up by the petitioner on 15.02.2004 i.e. three months prior to the incident and as such the charge of suppression of fact is not at all maintainable. Learned counsel further argues that in the alleged case i.e. Burmu P.S. Case No. 21/2004, he has already been honourably acquitted by the Court below with specific finding that the prosecution has utterly failed in proving any of the charges levelled against any of the three accused facing this trial. The Court below has further hold that finding these three accused not guilty for charges levelled against them, they are acquitted in this case from all the charges framed and levelled against them. The Court below has further hold that finding these three accused not guilty for charges levelled against them, they are acquitted in this case from all the charges framed and levelled against them. After acquittal of the petitioner, there was no occasion for any action against the petitioner and as such, the department kept mum for five years in the matter. Learned counsel further argues that it is after his victory in the election for the prestigious post of President of Jharkhand Police Mens’ Association, his rival parties circulated fake news against him which led to opening the case again and passing of impugned order in complete violation of principles of natural justice. Learned counsel further argues that no show-cause notice was served to the petitioner nor he was provided with any opportunity of being heard before passing the impugned order of dismissal. Apart from having excellent service record, good repo amongst the employees of the department, petitioner has represented the department in national as well as State level events of race, football, shooting etc. and won various awards and laurels for the department. He has been served with 58 rewards and except the instant punishment; he has never been inflicted with any punishment. Learned counsel further submits that the departmental proceeding was kept pending for more than a decade and thereafter infliction of punishment of forfeiture of increment without cumulative effect equivalent to two black marks and, thereupon, on the same set of charges petitioner has been inflicted with the punishment of dismissal from the service, which is not at all sustainable in the eyes of law. The impugned order of dismissal is against the mandate enshrined within the provisions of Rule 853-A(a) of the Jharkhand Police Manual, which clearly says that any action under the said rule shall be taken within a reasonable time from the date of final order in the departmental proceeding. The impugned order has been passed as an upshot of the publication of a fake and derogatory news on the instigation of rival parties of the department. 8. Learned counsel places heavy reliance upon the Judgment rendered by the Hon’ble Apex Court in the case of Inspector General of Police and others Vs. The impugned order has been passed as an upshot of the publication of a fake and derogatory news on the instigation of rival parties of the department. 8. Learned counsel places heavy reliance upon the Judgment rendered by the Hon’ble Apex Court in the case of Inspector General of Police and others Vs. S. Samuthiram reported in 2013(1) SCC 598 , whereby it has been held that when an accused is acquitted after full consideration of prosecution evidence and the prosecution has miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted. Regarding delay, learned counsel places reliance upon the judgment passed in the case of State of Madhya Pradesh Vs. Bani Singh and Another reported in 1990 (Supp.) SCC 738 and in the case of State of A.P. Vs. N. Radhakishan reported in (19980 4 SCC 154. ARGUMENTS ADVANCED ON BEHALF OF THE RESPONDENTS 9. Per contra counter affidavit has been filed. 10. Mr. Manish Kumar, learned Sr. SC-III assisted by Mr. Rajesh Kumar Jha appearing on behalf of the State submits that the proceeding against the petitioner was initiated in compliance of provisions of natural justice and there is no fault on part of the department. The charges against the petitioner are grievous in nature and as such, he has rightly been punished with dismissal from the service. Conduct of the petitioner clearly reflects that he had deliberately suppressed the fact that he was accused of criminal offence which was grievous in nature. Even if petitioner had no occasion to mention in the application form regarding the FIR lodged against him but he could have reported the same before the Selection Committee at the time of his selection/ appointment. In a disciplined force, such excuse is not acceptable and rightly, he has been dismissed from the service. Even in the verification roll submitted by the petitioner on 22.01.2006 at para-7, there was specific question as to whether he was ever arrested in a criminal case or ever been in prison, but the same was crossed expressing that he was never arrested in a criminal case. Petitioner has played fraud for getting appointment and the same is not acceptable and he has rightly been punished with dismissal from the service. Merely acquittal in a criminal case does not reduce gravity of offence committed by the petitioner. Petitioner has played fraud for getting appointment and the same is not acceptable and he has rightly been punished with dismissal from the service. Merely acquittal in a criminal case does not reduce gravity of offence committed by the petitioner. The charges against the petitioner was that at the time of his selection/ appointment, he was aware of the fact that he was a chargesheeted accused in criminal case, which was never disclosed by him. 11. Learned counsel places heavy reliance upon the Judgment rendered in the case of Vinod Kumar Vs. UPSRTC wherein it has clearly been held that in case of corruption/misappropriation, the only punishment is dismissal. Learned counsel further places reliance upon the Judgment rendered in the case of KSRTC Vs. B.S. Hullikatti reported in (2001) 2 SCC 574 . Further reliance has been placed in the Judgment rendered by the Hon’ble Apex Court in the case of Bank of India Vs. Avinash D. Mandvikar reported in AIR 2005 SC 3395 ; State of UP Vs. Rama Kant Yadav reported in 2002(6) SLR 300 ; G. Rajendra Vs. Vikram Tyres Limited reported in (2002) 10 SCC 438; Union of India Vs. Narayan Singh reported in AIR SC 2012. FINDINGS OF THE COURT 12. Having gone through rival submissions of the parties across the bar, this Court is of the considered view that case of the petitioner needs consideration for the following facts and reasons: (i) Admittedly, at the time of filling-up of the application form, no case was pending against the petitioner and as such there was no occasion to mention details of criminal case against him and as such, rightly, it was mentioned that no criminal case was pending against him. In this regard, it is relevant to quote para-30 of the Judgment rendered in the case of Avtar Singh Vs. Union of India reported in (2016) 8 SCC 471 , which reads as under: “30. The employer is given “discretion” to terminate or otherwise to condone the omission. Even otherwise, once employer has the power to take a decision when at the time of filling verification form declarant has already been convicted/acquitted, in such a case, it becomes obvious that all the facts and attending circumstances, including impact of suppression or false information are taken into consideration while adjudging suitability of an incumbent for services in question. Even otherwise, once employer has the power to take a decision when at the time of filling verification form declarant has already been convicted/acquitted, in such a case, it becomes obvious that all the facts and attending circumstances, including impact of suppression or false information are taken into consideration while adjudging suitability of an incumbent for services in question. In case the employer comes to the conclusion that suppression is immaterial and even if facts would have been disclosed it would not have adversely affected fitness of an incumbent, for reasons to be recorded, it has power to condone the lapse. However, while doing so employer has to act prudently on due consideration of nature of post and duties to be rendered. For higher officials/higher posts, standard has to be very high and even slightest false information or suppression may by itself render a person unsuitable for the post. However, same standard cannot be applied to each and every post. In concluded criminal cases, it has to be seen what has been suppressed is material fact and would have rendered an incumbent unfit for appointment. An employer would be justified in not appointing or if appointed, to terminate services of such incumbent on due consideration of various aspects. Even if disclosure has been made truthfully, the employer has the right to consider fitness and while doing so effect of conviction and background facts of case, nature of offence, etc. have to be considered. Even if acquittal has been made, employer may consider nature of offence, whether acquittal is honourable or giving benefit of doubt on technical reasons and decline to appoint a person who is unfit or of dubious character. In case employer comes to conclusion that conviction or ground of acquittal in criminal case would not affect the fitness for employment, incumbent may be appointed or continued in service. 31. Coming to the question whether an employee on probation can be discharged/refused appointment though he has been acquitted of the charge(s), if his case was not pending when form was filled, in such matters, employer is bound to consider grounds of acquittal and various other aspects, overall conduct of employee including the accusations which have been levelled. 31. Coming to the question whether an employee on probation can be discharged/refused appointment though he has been acquitted of the charge(s), if his case was not pending when form was filled, in such matters, employer is bound to consider grounds of acquittal and various other aspects, overall conduct of employee including the accusations which have been levelled. If on verification, the antecedents are otherwise also not found good, and in number of cases incumbent is involved then notwithstanding acquittals in a case/cases, it would be open to the employer to form opinion as to fitness on the basis of material on record. In case offence is petty in nature and committed at young age, such as stealing a bread, shouting of slogans or is such which does not involve moral turpitude, cheating, misappropriation, etc. or otherwise not a serious or heinous offence and accused has been acquitted in such a case when verification form is filled, employer may ignore lapse of suppression or submitting false information in appropriate cases on due consideration of various aspects. 32. No doubt about it that once verification form requires certain information to be furnished, declarant is duty-bound to furnish it correctly and any suppression of material facts or submitting false information, may by itself lead to termination of his services or cancellation of candidature in an appropriate case. However, in a criminal case incumbent has not been acquitted and case is pending trial, employer may well be justified in not appointing such an incumbent or in terminating the services as conviction ultimately may render him unsuitable for job and employer is not supposed to wait till outcome of criminal case. In such a case non-disclosure or submitting false information would assume significance and that by itself may be ground for employer to cancel candidature or to terminate services. 33. In such a case non-disclosure or submitting false information would assume significance and that by itself may be ground for employer to cancel candidature or to terminate services. 33. The fraud and misrepresentation vitiates a transaction and in case employment has been obtained on the basis of forged documents, as observed in M. Bhaskaran case [Union of India v. M. Bhaskaran, 1995 Supp (4) SCC 100 : 1996 SCC (L&S) 162 : (1996) 32 ATC 94] , it has also been observed in the reference order that if an appointment was procured fraudulently, the incumbent may be terminated without holding any inquiry, however, we add a rider that in case employee is confirmed, holding a civil post and has protection of Article 311(2), due inquiry has to be held before terminating the services. The case of obtaining appointment on the basis of forged documents has the effect on very eligibility of incumbent for the job in question, however, verification of antecedents is different aspect as to his fitness otherwise for the post in question. The fraudulently obtained appointment orders are voidable at the option of employer, however, question has to be determined in the light of the discussion made in this order on impact of suppression or submission of false information. 34. No doubt about it that verification of character and antecedents is one of the important criteria to assess suitability and it is open to employer to adjudge antecedents of the incumbent, but ultimate action should be based upon objective criteria on due consideration of all relevant aspects. 35. Suppression of “material” information presupposes that what is suppressed that “matters” not every technical or trivial matter. The employer has to act on due consideration of rules/instructions, if any, in exercise of powers in order to cancel candidature or for terminating the services of employee. Though a person who has suppressed the material information cannot claim unfettered right for appointment or continuity in service but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity having due regard to facts of cases. 36. What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. 36. What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by authorities concerned considering post/nature of duties/services and power has to be exercised on due consideration of various aspects.” (ii) It is also an admitted fact that petitioner was arrested on 21.08.2005 in connection with Burmu P.S. Case No. 21/2004, dated 24.05.2004 and later on granted bail by the Court. Petitioner, after fulfilling requisite criteria and being declared successful, was appointed on 14.12.2005. It was only on 08.01.2007, at the time of character verification, it was found that he was involved in a criminal case and was enlarged on bail. This fact was apparently concealed by the petitioner at the time of filling-up of the verification roll. Petitioner was proceeded departmentally for the same and upon enquiry, he was exonerated by the enquiry officer on 04.10.2008. Subsequently, in the aforesaid criminal case also, petitioner was acquitted on 11.05.2009. For a period of five years, no initiative was taken by the department regarding further proceeding in the matter against the petitioner. It was only in the year 2013 that a new enquiry officer was appointed. The reasons though not assigned by the respondents but the action was against the settled principles of law. The respondents were permitted to go for further enquiry but were precluded from fresh enquiry. The Hon’ble Apex Court in the case of K.R. Dev Vs. The Collector of Central Excise, Shillong reported in (1971) 2 SCC 102 has clearly held that there cannot be fresh enquiry rather further enquiry is permitted. The action of respondents was dehors the rules. The same view has been reiterated in the case of Prem Chand Ram Vs. State of Bihar and others reported in 2000(2) PLJR 918 and in the case of Commissioner of Police Vs. Jai Surya reported in (1997) 6 SCC 75 . The action of respondents was dehors the rules. The same view has been reiterated in the case of Prem Chand Ram Vs. State of Bihar and others reported in 2000(2) PLJR 918 and in the case of Commissioner of Police Vs. Jai Surya reported in (1997) 6 SCC 75 . (iii) In fresh enquiry, the petitioner was held guilty of charges of concealment of facts regarding the criminal case and after six years, the disciplinary authority, after issuance of second show-cause notice, passed the order of forfeiture of increment for one year which was equivalent to two black marks which is undoubtedly a major punishment as per Rule 834 of the Police Manual. It was only when petitioner was elected as a President of the Police Mens’ Association, hue and cry was raised against him regarding his involvement in a criminal case for which already he was proceeded and final order of punishment was passed. In the year 2020, the Deputy Inspector General of Police, hurriedly recommended for revision/ enhancement of punishment. The Inspector General – cum – Director General of Police, exercising his powers under Rule 853A of the Police Manual, after three years of earlier punishment and two years after recommendation on 31.03.2022 and 18 years of his appointment, passed an order of dismissal from the service. Rule 853A of the Police Manual gives power to the Director General of Police to be exercised under Rule 853A but that has to be done within a reasonable period. The reasonable period does not mean that it has to be exercised in any manner having no limitation. Admittedly, petitioner was neither noticed nor any show-cause was asked before passing order of dismissal. The fact remains that petitioner had already undergone punishment order and, thereafter, again he was punished for the same offence which also amounts to double jeopardy. The law is well settled that before snatching livelihood of an employee, which leads to civil and evil consequences, the cardinal principles of natural justice has to be followed. In the instant case, the Director General of Police did not consider it fit to even show-cause the petitioner as to why he should not be dismissed from the service. The said action of the respondent – Director General of Police could have been justified had the petitioner been in probation. In the instant case, the Director General of Police did not consider it fit to even show-cause the petitioner as to why he should not be dismissed from the service. The said action of the respondent – Director General of Police could have been justified had the petitioner been in probation. In the instant case, after 18 years of appointment, the livelihood of the person, even in the police force, could not have been snatched away arbitrarily taking shelter of Rule 853A of the Police Manual. (iv) Before issuance of such order, it was incumbent upon the respondents to examine the antecedent of the petitioner, whether this was the sole criminal case against him in which he was already acquitted or whether he was involved in a number of criminal case and was a person of bad antecedent and was not fit for police force. The respondents lost sight of the fact that the petitioner represented the department in national as well as State level events of race, football and shooting and won several awards and laurels to the Department. In 18 years of his tenure, he was given 58 rewards. Save and except the said one criminal case in which he was acquitted, nothing is pending against him. The delay has not been explained by the respondents. The Hon’ble Apex Court in the case of State of Madhya Pradesh Vs. Bani Siungh & Another, reported in 1990 (Supp.) SCC 738, has held as under: “The appeal against the order dated December 16, 1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned Counsel. The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal’s orders and accordingly we dismiss this appeal.” Further the Hon’ble Apex Court in case of “State of A.P. vrs. N. Radhakishan”, reported in (1998) 4 SCC 154 has held as under: “Unexplained delay in conclusion of the proceedings, further held, itself is an indication of prejudice caused to the employee-Disciplinary proceedings in the present case therefore quashed.” There is no satisfactory explanation for the inordinate delay. The unexplained delay in conclusion of the proceeding itself is an indication of the prejudice against the employee which cannot be routed out. (v) In the case of Kamal Nayan Mishra Vs. State of M.P. reported in (2010) 2 SCC 169 , the Hon’ble Apex Court has held that “20. The learned counsel for the respondents drew our attention to the instructions to the employees in the preamble to the attestation form and the undertaking contained in the verification certificate by the employee at the end of the attestation form, which puts him on notice that any false information could result in termination of his service without enquiry. It is contended that as the attestation form stated that an employee could be terminated without notice, if he furnishes false information, the employee is estopped from objecting to termination without notice. The said contention may merit acceptance in the case of a probationer, but not in the case of a confirmed government servant. 21. It is contended that as the attestation form stated that an employee could be terminated without notice, if he furnishes false information, the employee is estopped from objecting to termination without notice. The said contention may merit acceptance in the case of a probationer, but not in the case of a confirmed government servant. 21. No term in the attestation form, nor any consent given by a government servant, can take away the constitutional safeguard provided to a government servant under Article 311 of the Constitution.” In the instant case, the petitioner has already undergone the punishment and thereafter enhancing the punishment, that too dismissal from service, taking shelter of Rule 853A of the Police Manual, is not permissible without adhering to the cardinal principles of natural justice. The termination/ dismissal was illegal and invalid. (vi) Since petitioner has served the department for more than eighteen years and has no criminal antecedents involving moral turpitude, save and except the criminal case for which he was already proceeded departmentally. The department ought have considered the unblemished service career, 58 rewards received by him during the tenure. This Court is of the view that interest of justice would be served if the appellant is reinstated in service with continuity of service and other consequential benefits dispensing with any further disciplinary action. However, petitioner will not be entitled to any salary for the period till his reinstatement. 13. As a sequitur to the aforesaid rule, guidelines and judicial pronouncements, the writ petition stands allowed. The impugned order issued vide Memo No. 60/D, dated 31.03.2022 (Annexure-12) is hereby quashed and set aside. The respondents are directed to immediately reinstate the petitioner in service with benefits of continuity in service, seniority and all other consequential benefits. However, petitioner will not be entitled to any salary for the period till his reinstatement. 14. The writ petition stands allowed. 15. Pending Interlocutory Applications, if any, stand disposed of.