DILIP KUMAR MALLICK vs UNION OF INDIA AND OTHERS

S. N. Prasad, J.

This writ petition is for quashing the order of removal dtd.6.2.2009 (Annexure-5) whereby and where under the petitioner has been removed from

service and the order dtd.22.8.2012 passed by the appellate authority (Annexure-9) affirming the removal order.

The brief fact of the case of the petitioner as per pleading made in this writ petition is that he was appointed under Central Reserve Police Force

Group Centre, Bhubaneswar in the year 2003, while continuing, he has been directed to participate in the departmental enquiry for the allegation of

neglect in duty /remissness in the discharge of his duty in his capacity as a member of the Force U/s.11(1) of CRPF Act, 1949 in that he was involved

in Kendrapara P.S. Case No.349 dtd.26.9.2001 U/s.341/323/294/337/506/34 of the Indian Penal Code and charge sheeted vide charge sheet

no.537/01 dtd.1.12.2001 U/s.341/323/294/337/506 and 34 of Indian Penal Code which was pending before the competent court of criminal jurisdiction,

while filling up the verification roll, he has suppressed/concealed the fact of having his involvement in case which are pending against him, which is

prejudicial to the good order and discipline of the Force. The petitioner has participated in the departmental enquiry but the charge have been found to

be proved by the enquiry officer and on submission of the enquiry report before the disciplinary authority, the petitioner was asked to give reply to the

second show cause which he has submitted but the authorities have found it not satisfactory, hence passed the order of removal from service which

has been assailed by him before the appellate authority but the appellate authority, vide order dtd.31st July, 2009, has refused to interfere with the

decision taken by the disciplinary authority. The petitioner being aggrieved with the appellate order, has approached before this court by filing writ

petition being W.P.(C) No.14945 of 2009. This court, while disposing of the writ petition, has set aside the appellate order, directed the authority to re

consider the appeal of the petitioner within two months from the date of communication of the order in the light of the judgment rendered by

Hon’ble Apex Court in the case of Commissioner of Police and Others Vrs. Sandeep Kumar, reported in 2011 (I) OLR SC 1105. In terms of the

order passed by this court, the appellate authority has passed a fresh order on 22.8.2012 but declined to interfere with the decision of the disciplinary

authority, the said orders are under challenge in this writ petition.

The grounds taken by the petitioner in challenging the orders is that he never filled up the verification roll as ‘Yes’ as ‘No’, rather it

has remain blank, as such it cannot be said to be suppression of facts. The ground has been taken that the petitioner has surrendered before the

competent court and taking this fact into consideration, it cannot be said that the petitioner is a man of bad antecedent. The further ground has been

taken by the petitioner before the enquiry officer that he took help of another constable namely Harekrishna for filling of the verification roll since it

was not applicable for the petitioner, as such he thought it proper to left it blank, hence the petitioner never misled the authorities or deliberately

suppressed any material fact. Apart from that the procedural ground has also been taken to the effect that no defence assistance has been provided to

the petitioner and petitioner has not been given any opportunity to cross-examine the P.Ws., he has requested for the English version of the statements

but that has not been supplied to him, as such the entire departmental enquiry including the order of removal from service are vitiated in the eye of

law.

At last learned counsel for the petitioner has relied upon the judgment rendered by Hon’ble Apex Court in the case of Avtar Singh Vrs. Union of

India and Others reported in (2016) 8 SCC 471 and has submitted that in view of the principle laid down in the case of Avtar Singh by the Hon’ble

Apex Court, the case of the petitioner is fit to be considered.

Mr. A. K. Bose, Assistant Solicitor General of India assisted by his associate Miss. Bijaya Laxmi Tripathy has vehemently opposed the submission

and argument advanced on behalf of the petitioner by submitting that the petitioner has been appointed as a member of the disciplined Force. At the

time of filling of the verification roll for verification of his character and antecedent, the petitioner left the column no.12 regarding details of arrest /

detention or bound down / fined, convicted by any court of law for any offence as blank and during course of verification the fact of his involvement in

Kendrapara P.S. Case No.349 dtd.26.9.2001 U/s.341/323/294/337/506/34 of IPC and submission of charge sheet no.537/01 dtd.1.12.2001

U/s.341/323/294/337/506 and 34 of Indian Penal Code has been transpired as per District Magistrate/Collector, Kendrapara letter no.1241/RES.VCA

dtd.13.11.2017 and no.792/DIB dtd.3.11.2008. Accordingly, in the light of the instruction contained in the Government of India, Ministry of Personnel

and Training OM No.11012/7/91-Establishment (A) dtd.19.5.2003, a Departmental enquiry was ordered against the petitioner for the charge of

misconduct and suppression of material facts in which he, after getting full opportunity to defend himself, has been punished with the punishment of

removal from service by taking lenient view which has been affirmed by the appellate authority, as such there is no infirmity in the decision taken by

the authorities in removing the petitioner from service for the reason that the verification roll is only required to be seen regarding antecedent of the

candidate but he intentionally has not filled up this application form which is the active suppression of material facts and it will be said to be material

suppression because the petitioner was knowing about this fact that he is involved in a criminal case in which charge sheet was submitted and he has

gone under judicial custody, hence it was incumbent upon him to furnish the detail of it to apprise the authority that the case is pending against him

without caring for its consequence and since he has not furnished it, it will be said to be active concealment and that will be said to be

misrepresentation on his part, as such it is a misconduct, hence he has found not fit to be retained in service as a member of the disciplined Force.

They further submit that the judgment rendered in the case of Avtar Singh is not applicable on the basis of the factual aspect involved in this case

since in the case of Avtar Singh the ratio has been laid down that suppression of material information presupposes that what is suppressed that

matters not every technical of trivial matter. Only such information which was required to be specifically mentioned has to be disclosed. If information

not asked for but is relevant which comes to the knowledge of the employer the same can be considered in an objective manner while addressing the

portion of business but that is not the case here, rather there was specific stipulation in the verification roll that the details is to be furnished regarding

involvement in criminal case if yes or no, as such the judgment rendered by Hon’ble Apex Court in Avtar Singh’s case is not applicable. They

further submit that the jurisdiction of this court sitting under Article 226 of the constitution of India is very limited and the High Court sitting under

Article 226 of the constitution of India may not act as an appellate court for re-appreciating the evidence.

Heard the learned counsel for the parties and appreciated their rival submission by going into the factual aspect as well as the pleadings and the

annexure appended to the affidavits. The undisputed fact in this case is that the petitioner has made an application for appointment as a constable in

the CRPF in which he has been declared successful. Before his selection he was required to fill the verification roll by furnishing details regarding

arrest, prosecution, kept under detention or bound down/fined, convicted by a court of law for any offence under column no.12. Under column.13 it

has to be furnished whether any case is pending against him in any court of law at the time of filling up of the attestation form. Admittedly the

petitioner was appointed in the year 2003 and on that date the criminal case against the petitioner was pending by virtue of institution of FIR in

Kendrapara P.S. on 26.9.2001 being Kendrapara P.S. Case No.349 for the offence U/s.341/323/294/337/506 and 34 of Indian Penal Code in which

charge sheet has also been submitted on 1.12.2001.The petitioner has not disclosed this aspect of the matter at any time on his own rather it was

detected on verification in terms of the report submitted by the District Magistrate / Collector, Kendrapara vide its letter dtd.13.11.2007 and 3.11.2008

and in view thereof the decision was taken by the authorities to proceed against the petitioner by initiating a departmental enquiry by framing charges

and accordingly following charges have been framed:-

“That the said No.035040416 CT/GD Dilip Kumar Malik of C/91 Bn, CRPF, while functioning as CT/GD in C/91 Bn, CRPF during the period from

19.5.2003 (Date of enlistment) to till date committed an Act of neglect of duty/remissness in the discharge of his duty in his capacity as a member of

the Force under section 11(1) of CRPF Act, 1949 in that he was involved in Kendrapara P.S. Case No.349 dtd.26.9.2001 under section

341/323/294/337/506/34 IPC and Charge Sheet No.537/01 dtd.1.12.2001 U/s.341/323/294/337/506/34 IPC has been submitted against him. The case

is now sub-judice, while filling up the verification roll, he had suppressed/concealed the fact of having his involvement in the case which are pending

against him, which is prejudicial to the good order and discipline of the Force.â€​ The petitioner has been provided with an opportunity of hearing before

the enquiry officer in which he has taken plea that there is no material suppression of fact since the column under which he was required to furnish

the detail was left blank, as such it cannot be said that the facts regarding involvement in the criminal case has been suppressed.The enquiry officer

after going through the evidence, the respective column of the verification roll and the report of the District Magistrate/Collector, Kendrapara, has

proved the charges against the petitioner and in consequence thereof the Disciplinary Authority, while accepting the enquiry report, has removed the

petitioner from service after following due procedure. The petitioner has approached before the appellate authority but the appellate authority while

passing the order dtd.31.7.2009 has rejected the appeal.

The petitioner being aggrieved with the same has approached to this court by invoking its extra ordinary jurisdiction conferred under Article 226 and

227 of the constitution of India and taken the ground of interference by putting reliance upon the judgment rendered in the case of Commissioner of

Police and Others Vrs. Sandeep Kumar (supra) and this court, while quashing the appellate order, has directed the appellate authority to reconsider

the appeal of the petitioner within a period of two months. The appellate authority has passed a fresh order on 22.8.2012 by elaborately discussing the

factual aspect as also the judgment pronounced in the case of Commissioner of Police (supra) but rejected the appeal on the ground that the

misconduct committed by the petitioner is serious in nature and the judgment of the Hon’ble Apex Court rendered in the case of Commissioner of

Police Vrs. Sandeep Kumar (supra) is not applicable to the facts and circumstances of the present case since as per the authority of Hon’ble

Apex Court Sandeep Kumar was enrolled as Head Constable (Ministerial) which is a clerical post in local police whereas the petitioner was enrolled

as a Constable in CRPF and has to perform duties related to securities of the VIPs, law and order all over the country and to deploy for safety and

security of public. The petitioner being aggrieved with the order of removal as also the subsequent order passed by the appellate authority

dtd.22.8.2012 is before this court by way of the instant writ petition. The petitioner has taken ground that the column no.12 has not been filled up

rather it has remained vacant, as such it cannot be said to be material suppression of fact. In addition to that he has also put reliance upon the

judgment rendered by Hon’ble Apex Court in the case of Avtar Singh.

So far as the first ground is concerned, it is evident from the material available on record that an employee was asked to fill up the verification roll

which explicitly contains that furnishing of false information or suppression of any factual information in the verification roll would amount to

disqualification and is likely to render the candidate unfit for employment under the Government. The column no.12 contains regarding furnishing the

information regarding prosecution / kept under detention or bound down / fine, convicted by a court of law for any offence while column no.13

stipulates regarding details to be furnished as to whether any case is pending against him in any court of law at the time of filling of the attestation

form. Thus, it is evident that filling up of the verification roll was the mandatory requirement and if the verification roll is not being filled up, it amounts

to suppression of fact because of the reason that the verification roll contains a specific declaration to be furnished by the candidates, as such it has to

be answered in negative or positive and if not answered, even if there is pendency of criminal case, it will be said to be material suppression of fact.

Now, it is to be seen as to whether not furnishing the details about pendency of the criminal case can be said to be material suppression or not,

according to the considered view of this court, it will be said to be material suppression as because the petitioner was seeking an appointment in a

disciplined Force under CRPF wherein the discipline is required to be maintained with high integrity and honesty and the work is expected from the

members of the disciplined Force with utmost sincerity.

The information required under these columns in the verification roll is to assess the conduct and antecedent and if it is found that the candidate is

involved in criminal case and even though it has not been furnished, the conduct of an employee will be multiplied in multiplying his misconduct. If the

correct information would have been furnished by the candidate regarding his involvement in the criminal case, then it is up to the authority to take

decision with respect to the nature of involvement in the criminal case but by not filling that column, the petitioner has not provided that opportunity to

the employer, as such the petitioner cannot be said to be a man of full integrity, hence according to the considered view of this court, the authorities

have rightly proceeded departmentally against him. The contention of the petitioner that since it has not been filled up, hence it cannot be said to be

suppression, but this argument is not fit to be sustainable accordingly rejected since there is stipulation in the verification roll that furnishing of false

information or suppression of any factual information would be a disqualification and not furnishing the details under the said column will be said to be

suppression of factual information which relates to the antecedent of the petitioner.

So far as the second ground regarding putting reliance upon the judgment of Avtar Singh, this court has gone across the factual aspect involved in

the said case along with the ratio laid down wherein there Lordships of Hon’ble Apex Court have been pleased to hold at paragraph 30 and 36

that the 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. For lower post which are not sensitive in nature of duties, impact of suppression unsuitability has to be

considered by the authority concerned considering the post/nature of duties/services and power has to be exercised on both consideration of various

aspects. At paragraph 38.6 it has been laid down that 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. At paragraph 38.8 it has been held that if criminal case was pending but not known to the candidate at the time of filling the form, it may

not be treated as suppression of facts. It has further been held that only such information which has required to be specifically mentioned has to be

disclosed.

This court has appreciated the fact of the instant case in the light of the proposition as settled by the Hon’ble Apex Court in the case of Avtar

Singh, and found that the nature of duty which the petitioner was to perform is of a member of the CRPF which is sensitive in nature of duties. The

verification roll specifically provides a column for furnishing the details with the consequence that in case if it will not be disclosed, they will not be

retained in service, as such the information was required to be furnished by the petitioner but the petitioner, with the full knowledge of the pendency of

the criminal case since he has been taken into judicial custody and charge sheet was submitted on 1.12.2001, however convicted on 1.5.2008, has not

disclosed the same in the verification roll. Learned counsel for the petitioner has taken the ground that there was compromise and due to that reason

the column was left blank but even accepting this argument that there was a compromise, then also it was incumbent upon the petitioner to disclose it

as per the requirement given under column no.12 but here the fact is otherwise different since on the basis of the details furnished by the

Superintendent of Police, Kendrapara it was found by the authorities that on the date of filling up of the attestation form the criminal case was pending

against the petitioner. It is further evident from the material available on record that the petitioner on its own has never disclosed at any point of time

even after entry into service, rather it was on enquiry found by the authorities that he was involved in a criminal case and then the report was asked

for from the concerned Superintendent of Police of the concerned District, hence the petitioner cannot be said to be man of high integrity.

Before parting with the order it would be appropriate to discuss the scope of judicial review so far as the findings in a departmental proceeding is

concerned is very limited under Article 226 of the Constitution of India as has been held by the Hon’ble Apex Court in catena of decisions, the

recent is the judgment rendered in the case of State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, (2011) 4 SCC 584, wherein in paragraph 7

it has been held as follows :-

“7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the

ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence,

the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental

enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no

evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such

conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural

justice or statutory regulations have been violated or if the order is found to be arbitrary, 10 Page 11 capricious, mala fide or based on extraneous

considerations.†In the judgment reported in Union of India and others v. P.Gunasekaran, (2015) 2 SCC 610, the Hon’ble Apex Court in

paragraph 12 has held as follows :

“12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary

proceedings, re-appreciating even the evidence before the inquiry officer. The finding on Charge I was accepted by the disciplinary authority and was

also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first

appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the

evidence. The High Court can only see whether:

(a) the inquiry is held by a competent authority;

(b) the inquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person 13.could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

13.(i) the finding of fact is based on no evidence.

Under Articles 226/227 of the Constitution of India, the High Court shall not:

(i) re-appreciate the evidence;

(ii) interfere with the conclusions in the inquiry, in case the same has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findings can be based.

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks its conscience.â€​

Recently, in the judgment rendered in the case of Central Industrial Security Force and others v. Abrar Ali, AIR 2017 SC 200, the Hon’ble Apex

Court in paragraph 12 held as follows :

“12.Though we are of the view that the High Court ought not to have interfered with the order passed by the Disciplinary Authority, the penalty of

dismissal from service is not commensurate with delinquency. The Respondent was found guilty of desertion of the Force for a period of five days and

not improving his conduct in spite of imposition of penalties on three occasions earlier. For the above delinquencies, the penalty of dismissal from

service is excessive and harsh. In our view, the penalty of compulsory retirement would meet the ends of justice. We are informed by the counsel for

the Appellants that the Respondent is entitled for pension as he has completed 10 years of service. In order to avoid any controversy, we direct that

the Respondent shall be entitled for notional continuity of service till the date of completion of minimum service required to make him eligible for

pension. He will not be entitled for payment of salary and allowances for that period.â€According to the considered view of this court, the petitioner

has failed to make out a case to exercise the power of judicial review sitting under Article 226 of the Constitution of India as per the proposition laid

down by the Hon’ble Apex Court in the cases referred herein above. In view thereof this court declines to interfere with the order impugned.

Accordingly the writ petition fails and it is dismissed.