Devesh Puran vs Union of India

Daya Chaudhary, J.—The petitioner has approached this Court by way of filing the present petition for quashing of notice of termination (Annexure P.2) as well as order of termination dated February 2, 2011 (Annexure P.3). In the case at hand, a notice was issued to the petitioner and the reply thereof was also submitted. Thereafter his services were terminated which was challenged by way of filing a CWP No. 8738 of 2011. The said petition was allowed vide order dated 18.9.2012 and the impugned order was set aside. Subsequently, a review application was filed by the Union of India on the ground that Article 311(1) of the Constitution of India is not applicable being the employee of paramilitary force of the Union of India. The order dated 18.9.2012 was recalled by relying upon the judgment of this Court in Bhagat Ram v. Union of India and others 1981 (3) SLR 686 vide order dated 16.8.2013 and the petition was restored to its original number and status. Briefly, facts of the case are that the petitioner was appointed as Constable (General Duty) and subsequently his services were terminated vide order passed in the month of February 2011 (Annexure P.3). As per provisions of sub rule 4 of Rule 3 of the Central Civil Services (Temporary Service) Rule, 1965. The impugned order of termination has been challenged by the petitioner on the ground that the same has been passed in violation of principles of natural justice as no show cause notice was issued to him. It is also the argument of learned counsel for the petitioner that the impugned order has not been passed by the competent authority. Neither any reason has been mentioned in the notice nor in the termination order regarding terminating the services of the petitioner. Learned counsel for the petitioner has relied upon judgment of Supreme Court in Commr. of Police and Others Vs. Sandeep Kumar, and Ram Kumar v. State of UP and Ors., 2011(4) SCT 301.

Learned counsel for the respondents submits that it was not a case of simple termination but at the time of submission of application form the material fact with regard to registration of criminal case was concealed. Learned counsel for the respondents also submits that had this fact been in the knowledge of the selection committee, he would not have been selected. Moreover, furnishing of false information or suppression of any factual information was a good ground for termination of service of the petitioner. Learned counsel has also relied upon judgments rendered in Union of India and others v. Avtar Singh, LPA No. 951 of 2010, decided on 2.12.2010, Union of India (UOI) and Others Vs. Kali Dass Batish and Another, , Kendriya Vidyalaya Sangathan and Others Vs. Ram Ratan Yadav, and Pamuru Vishnu Vinodh Reddy Vs. Chillakuru Chandrasekhara Reddy and Others, in support of his contentions.

Heard arguments of learned counsel for the parties and have also perused the impugned orders as well as other documents on the file.

Admittedly, Pamuru Vishnu Vinodh Reddy Vs. Chillakuru Chandrasekhara Reddy and Others, was registered against him in Police Station Lavadi at the time of enlistment of the petitioner in CRPF on 14.3.2009. This fact was concealed while filling up verification roll on 21.4.2009, whereas, it was clearly mentioned that furnishing of false information or suppression of any factual information during the verification roll would amount to disqualification and the same was likely to render a candidate unfit for employment for govt. job. It was also mentioned that in case of suppression of any factual information by any candidate his services would be terminated. This fact came to the knowledge of the authorities subsequently and notice was issued under sub Rule 1 of Rule 5 of the Rules. The petitioner was under probation for a period of two years.

Learned counsel for the petitioner has brought to the notice of this Court that the petitioner was acquitted of the charge vide judgment of the trial Court dated 27.4.2009 and thereafter no appeal was filed.

Admittedly, at the time of filling up verification roll on 21.2.2009, the material facts of registration of criminal case against the petitioner was concealed. It was clearly mentioned in para No. 1 that furnishing of false information or suppression of any factual information in the verification roll would be a disqualification and a candidate could be declared unfit for employment. It was also mentioned in the case, the false information furnished by the candidate or any suppression of factual information in the verification roll came to the notice of the authorities concerned, the services of the candidate could be terminated. As per provisions of Sub Rule 1 of Rule 5 of CCS (Temporary) Service Rules 1965, the services of the petitioner were terminated. During the period of probation, this fact came to the notice of the authorities concerned that the material fact of registration of FIR was not mentioned in the verification roll. The argument of learned counsel for the petitioner that no reason whatsoever was mentioned in the order of termination has no substance as the petitioner was on probation for a period of two years and during that period only, this fact came to the notice of the authorities and after giving one month''s notice, his services were terminated. In case of termination during probation period, the reasons are not required to be mentioned as not only the conduct of the petitioner reflects that the petitioner has concealed the material fact and being in a disciplined force, he was required to mention the fact of registration of criminal case. Moreover, furnishing of false information or suppression of any material facts in the verification roll is not only a case of disqualification but the petitioner was unfit for employment. Even while filing this petition before this Court, nothing has been mentioned regarding registration of criminal case. Simply a ground has been mentioned that his services have been terminated by an authority who is subordinate to the appointing authority and termination was contrary to mandate of Article 311(1) of the Constitution of India. By relying upon the contentions raised by learned counsel for the petitioner, his writ petition was allowed on 18.9.2012. Thereafter, review petition was filed by the respondents and earlier order dated 18.9.2012 was recalled. The conduct of the petitioner was not only unfair at the time of filling up verification roll but even before this Court also.

Now it cannot be said that subsequently the petitioner was acquitted of the charges by the trial Court and no appeal against acquittal was filed. An identical issue was before LPA Bench in LPA No. 915 of 2010 whereby a decision of Single Bench allowing the writ petition was challenged and the appeal filed by the Union of India was allowed. The LPA Bench relied upon the judgment of Delhi Administration through its Chief Secretary and Others Vs. Sushil Kumar, wherein it was held as under :

"3. This appeal by special leave arises from the order of the Central Administrative Tribunal, New Delhi made on 6.9.1995 in OA No. 1756 of 1991. The admitted position is that the respondent appeared for recruitment as a Constable in Delhi Police Services in the year 1989-90 with Roll No. 65790. Though he was found physically fit through endurance test, written test and interview and was selected provisionally, his selection was subject to verification of character and antecedents by the local police. On verification, it was found that his antecedents were such that his appointment to the post of Constable was not found desirable. Accordingly, his name was rejected. Aggrieved by proceedings dated 18.12.1990 culminating in cancellation of his provisional selection, he filed OA in the Central Administrative Tribunal. The Tribunal in the impugned order allowed the application on the ground that since the respondent had been discharged and/or acquitted of the offence punishable under. Section 304 IPC, under Section 324 read with Section 34 IPC and under Section 324 IPC, he cannot be denied the right of appointment to the post under the State. The question is whether the view taken by the Tribunal is correct in law? It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The Tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequences. The consideration relevant to the case is of the antecedents of the candidate. Appointing authority, therefore, has rightly focused this aspect and found it not desirable to appoint him to the service."

In another judgment of the Apex Court in the case titled Kendriya Vidyalaya Sangathan and Others Vs. Ram Ratan Yadav, it was held as under:

"8. The object of requiring information in columns 12 and 13 of the attestation form and certification thereafter by the candidate was to ascertain and verify the character and antecedents to judge his suitability to continue in service. A candidate having suppressed material information and/or giving false information cannot claim right to continue in service. The employer having regard to the nature of the employment and all other aspects had discretion to terminate his services, which is made expressly clear in para 9 of the offer of appointment. The purpose of seeking information as per columns 12 and 13 was not to find out either the nature of gravity of the offence or the result of a criminal case ultimately. The information in the said columns was sought with a view to judge the character and antecedents of the respondent to continue in service or not. The High Court, in our view, has failed to see this aspect of the matter. It went wrong in saying that the criminal case had been subsequently withdrawn and that the offences, in which the respondent was alleged to have been involved, were also not of serious nature. In the present case the respondent was to serve as a Physical Education Teacher in Kendriya Vidyalaya. The character, conduct and antecedent of a teacher will have some impact on the minds of the students of impressionable age. The appellants having considered all the aspects passed the order of dismissal of the respondent from service. The Tribunal after due consideration rightly recorded a finding of fact in upholding the order of dismissal passed by the appellants. The High Court was clearly in error in upsetting the order of the Tribunal. The High Court was again not right in taking note of the withdrawal of the case by the State Government and that the case was not of a serious nature to set aside the order of the Tribunal on that ground as well. The respondent accepted the offer of appointment subject to the terms and conditions mentioned therein with his eyes wide open. Para 9 of the said memorandum extracted above in clear terms kept the respondent informed that the suppression of any information may lead to dismissal from services. In the attestation form, the respondent has certified that the information given by him is correct and complete to the best of his knowledge and belief; if he could not understand the contents of column Nos. 12 and 13, he could not certify so. Having certified that the information given by him is correct and complete, his version cannot be accept. The order of termination of services clearly shows that there has been due consideration of various aspects. In this view, the argument of the learned counsel for the respondent that as per para 9 of the memorandum, the termination of service was not automatic, cannot be accepted."

In Kamal Nayan Mishra Vs. State of Madhya Pradesh and Others, it has been held as under:

"7. A confirmed government servant is the holder of a civil post entitled to the benefits of the safeguards provided by Article 311 of the Constitution. On the other hand, a probationer does not have any substantive right to hold the post, and is not entitled to the protection under Article 311. A probationer''s services can be dispensed with during the period of probation, or at the end of the probation period, if his service is found to be unsatisfactory or if he is found to be unfit for appointment. In Ajit Singh and Others Vs. State of Punjab and Another, , this Court explained why termination of a probationer is permissible an inquiry :

"If a servant could not be removed by way of punishment from service unless he is given an opportunity to meet the allegations if any against him which necessitates his removal from service, rules of natural justice postulate an enquiry into the allegations and proof thereof. This developing master servant relationship puts the master on guard. In order that an incompetent or inefficient servant is not foisted upon him because the charge of incompetence or inefficiency is easy to make but difficult to prove, concept of prohibition was devised. To guard against error of human judgment in selecting suitable personnel for service, the new recruit was put on test for a period before he is absorbed in service or gets a right to the post. Period of probation gave a sort of locus poenitentiae to the employer to observe the work, ability, efficiency, sincerity and competence of the servant and if he is found not suitable for the post, the master reserved a right to dispense with his service without anything more during or at the end of the prescribed period which is styled as period of probation. Viewed from this aspect, the courts held that termination of service of a probationer during or at the end of a period of probation will not ordinarily and by itself be a punishment because the servant so appointed has no right to continue to hold such a post any more than a servant employed on probation by a private employer is entitled to. (See Parshotam Lal Dhingra Vs. Union of India (UOI), ). The period of probation therefore furnishes a valuable opportunity to the master to closely observe the work of the probationer and by the time the period of probation expires to make up his mind whether to retain the servant by absorbing him in regular service or dispense with his service.

In Kendriya Vidyalaya Sangathan and Others Vs. Ram Ratan Yadav, it has been held that the services of a probationer who gave wrong information in regard to material particulars having a bearing on his fitness or suitability for appointment, can be terminated without giving any opportunity to show cause against the proposed termination. But once a probationer is confirmed in the post, his position and status becomes different as he gets the protection of Article 311. If it is found that the government servant who is holder of a civil post, has given any false information during the course of employment, that will have to be treated as a misconduct, and punishment can be imposed only after subjecting him to an appropriate disciplinary proceedings as per the relevant service Rules."

In Union of India (UOI) and Others Vs. Bipad Bhanjan Gayen, , this Court dealt with the validity of the termination of service of respondent therein who had been selected for training as a constable in a Railway Protection Force. This Court observed thus :

"9. It is the admitted case that the respondent was still under probation at the time his services had been terminated. It is also apparent from the record that the respondent had been given appointment on probation subject to verification of the facts given in the attestation form. To our mind, therefore, if an enquiry revealed that the facts given were wrong, the appellant was at liberty to dispense with the services of the respondent as the question of any stigma and penal consequences at this stage would not arise.

It bears repetition that what has led to the termination of service of the respondent is not his involvement in the two cases which were then pending, and in which he had been discharged subsequently, but the fact that he had withheld relevant information while filling in the attestation form. We are further of the opinion that an employment as a police officer pre-supposes a higher level of integrity as such a person is expected to uphold the law, and on the contrary, such a service born in deceit and subterfuge cannot be tolerated."

In Secy. Deptt. of Home Secy. A.P. and Others Vs. B. Chinnam Naidu, , this Court after reiterating that suppression of material information or giving false information in attestation form would result in the candidate being discontinued from service, cautioned that the court will have to examine in each case, whether a candidate has suppressed material information or has given false information in the attestation form; and where the candidate is required to state as to whether he has been convicted by a criminal court, if the candidate answered in the negative, the fact that a criminal case was pending as on that date, would not amount to misrepresentation. This Court held :

"The State Government and the Tribunal appeared to have proceeded on the basis that the respondent ought to have indicated the fact of arrest or pendency of the case, though column 12 of the attestation form did not require such information being furnished. The learned counsel for the appellants submitted that such a requirement has to be read into an attestation form. We find no reason to accept such contention. There was no specific requirement to mention as to whether any case is pending or whether the applicant had been arrested. In view of the specific language so far as column 12 is concerned the respondent cannot be found guilty of any suppression.

In Kendriya Vidyalaya Sangathan case the position was the reverse. There the candidate took the stand that as there was no conviction, his negative answers to columns 12 and 13 were not wrong. This Court did not accept the stand that requirement was conviction and not prosecution in view of the information required under columns 12 and 13 as quoted above. The requirement was ''prosecution'' and not ''conviction''. The logic has application here. The requirement in the present case is ''conviction'' and not ''prosecution''.

The question whether he was a desirable person to be appointed in government service was not the subject-matter of adjudication and the Tribunal was not justified in recording any finding in that regard. Whether a person is fit to be appointed or not is a matter within the special domain of the government."

In the present case the material fact of registration of criminal case was concealed. The petitioner was on probation and reasons were not required to be mentioned in the impugned order of termination. The controversy in hand is squarely covered by the judgments reproduced as above and the judgments relied upon by learned counsel for the petitioner are not applicable to the facts and circumstances of the case. In view of the facts as mentioned above as well as law position discussed above, there is no merit in the petition and the same is dismissed being devoid of any merit. No order as to costs.