Govt. Of India @APPELLANT@Hash Shri Ram Meel

It is a case where a writ petition was filed by the petitioner-non-appellant to challenge the order dated 19th April, 1995 passed by the appellant

dismissing him from service. It was after enrolment of the non-appellant in Border Security Force, Jodhpur (for short “the BSFâ€) on 27th

December, 1988. He was served with the charge sheet alleging that while obtaining service, made false declaration in Enrolment Form. Two criminal

cases were pending against him at the time of submission of Enrolment Form where it was asked as to whether he was ever arrested, prosecuted

or otherwise dealt with under any law in India. The non-appellant answered it in “Noâ€. After evidence in the enquiry, the charge was found

proved. The non-appellant was then dismissed from service.

The case of the non-appellant before learned Single Judge was that he was never arrested in any criminal case and, accordingly, put “No†for the

information as to whether he was ever arrested.

The case of the appellant is that two criminal cases were pending against the non-appellant. The first case was on FIR No.4/1987 for offence under

Sections 147, 148, 323 and 452 IPC and other case was on FIR No.10/1987 for offence under Sections 147, 323 and 379 IPC. Learned Single Judge

allowed the writ petition on the ground that the petitioner-non-appellant was not aware about pendency of the criminal case, as the Enrolment Form

was submitted on 27th December, 1988, whereas, charge in the case was framed on 18th January, 1989 i.e. subsequent to submission of Enrolment

Form. The order of punishment of dismissal from service was accordingly set aside.

The counsel for the appellants submits that learned Single Judge failed to consider complete facts of the case while allowing the writ petition. In fact,

two criminal cases were pending against the non-appellant at the time of submission of Enrolment Form on 27th December, 1988. Learned Single

Judge had taken into consideration only one case where charges were framed on 18th January, 1989 but cognizance of offence was taken prior to

submission of Enrolment Form to the knowledge of the nonappellant in view of the protest petition and hearing on it. Learned Single Judge further

failed to consider that other criminal case was also pending, in which, charges were framed prior to the submission of Enrolment Form. The second

case has not been taken into consideration by learned Single Judge despite framing of charges in the year 1987 thus there exists perversity in finding

of learned Single Judge.

The application for condonation of delay has also been pressed. It is submitted that justified reasons to condone the delay has been given and

otherwise the appellants having case on merit, should not be thrown on the ground of delay. The prayer is accordingly to set aside the order of learned

Single Judge by allowing the appeal.

Learned counsel for the non-appellant has contested the appeal. It is submitted that there was no concealment of fact by the non-appellant while

submitting Enrolment Form. The question asked to the non-appellant was as to whether he has ever been arrested. Since, the non-appellant was

never arrested, he answered the question in negative form. Learned Single Judge thus rightly interfered in the order of dismissal from service

inasmuch as charge in the criminal case was framed subsequent to submission of Enrolment form. In view of the above and taking into consideration

bona fides of the non-appellant in submission of Enrolment Form, the order of learned Single Judge may be maintained.

We have considered rival submissions made by learned counsel for the parties and perused the record of the case.

The order of learned Single Judge has been challenged mainly on the ground that it has ignored pendency of one criminal case out of two.

If the facts on record are taken into consideration, we find that the FIR bearing No.10/87 was registered for offence under Sections 147, 323 and 341

IPC. The charge sheet in the case was filed before the ACJM Court on 07th May, 1987. The charges in the case were framed on 19th December,

1987 i.e. almost a year earlier than submission of Enrolment Form. Despite aforesaid, the non-appellant answered the question in negative form where

he was asked as to whether he has ever been arrested, prosecuted or dealt with under any of the provision of law. The question was not only for

arrest. The aforesaid case has not been taken consideration by learned Single Judge while interfering in the order of dismissal from service. The other

FIR bearing No.4/87, in which also, cognizance of offence was taken prior to submission of Enrolment Form. Learned Single Judge has considered

only the said FIR for holding action of the appellants to be illegal ignoring the FIR bearing No.10/87.

In FIR No.4/87 also, the non-appellant sought bail and was granted vide order dated 07th May, 1987 thus the case was in his knowledge at the time of

submission of Enrolment Form yet he gave answer in negative. It is moreso when, cognizance of offence was taken prior to submission of Enrolment

Form. For ready reference, Column 12 of the Enrollment Form is quoted hereunder :

Have you ever been arrested, prosecuted convicted imprisoned, bound over, interned externed or otherwise dealt with under any law in Force of

India or outside. If so State particularly?        ÂN o The perusal of the question shows it not only for arrest but as to whether the

applicant has ever been prosecuted. The non-appellant was prosecuted in two cases, out of which, FIR bearing No.10/87 was proceeded with framing

of charges vide order dated 19th December, 1987 and, in other case bearing FIR No.4/87, cognizance was taken prior to submission of Enrolment

Form.

In view of the above, the finding recorded by learned Single Judge is in ignorance of one case where the FIR bearing No.10/87 was registered

followed by framing of charges vide order dated 19th December, 1987.

From the facts available on record, it comes out to be a case of suppression and concealment of facts while submitting Enrolment Form. If the

judgment in the case of Avtar Singh Vs. Union of India & Ors., (2016) 8 SCC 471 is applied, the nonappellant cannot be held entitled for continuation

in service having concealed and suppressed the facts about pendency of criminal cases despite knowledge.

Learned counsel for the non-appellant has made reference only for arrest but the question was even about prosecution thus we find reasons to cause

interference in the order having been passed by ignoring concealment of facts about a case where charges were even framed much prior to

submission of Enrolment Form. The Apex Court in the case of Avtar Singh (supra) categorically held that concealment may result in dismissal of

service and even acquittal in the case may not result in a right to claim appointment. The discretion lies with the administration to appoint or deny the

appointment. The case in hand pertains to BSF i.e. disciplined forces and the type of default committed by the non-appellant cannot be condoned.

The Apex Court in the recent judgment in the case of Union Territory, Chandigarh Administration and Ors. Vs. Pradeep Kumar & Anr., (2018) 1

SCC 797 has dealt with the issue again. Therein, it is held that even if a candidate has been acquitted with the benefit of doubt, the administration has

right to deny appointment when it is for the disciplined forces. It is in a case where a candidate had made disclosure of pendency of criminal case.

The other judgment is in the case of Avtar Singh Vs. Union of India & Ors., (2018) 1 SCC 267. The facts of that case are similar to the facts of this

case. There also, termination of service was made due to suppression of facts. There the candidate was acquitted from criminal case but the appeal

was pending. The fact about pendency of appeal was suppressed hence while relying on the earlier judgment of the Apex Court in the case of Avtar

Singh Vs. Union of India & Ors., (2016) 8 SCC 471, a direction was given to the administration to afford an opportunity of hearing afresh for passing

of order. In the instant case, the non-appellant was given due opportunity of hearing. The order of punishment of dismissal from service is after

enquiry.

In view of the above, the order passed by learned Single Judge needs interference.

We have considered even application under Section 5 of the Limitation Act. It has been contested by learned counsel for the appellants. Taking into

consideration merit of the case where finding of learned Single Judge is found to be perverse, we find reason to condone the delay, as othewise it has

been explained. The perversity in finding is due to ignorance of the criminal case where even charges were framed almost a year back to the

submission of Enrolment Form.

Finding merit in the case and reasons for condonation of delay, we accept the application in the light of the judgments of the Apex Court in the cases

of State of Haryana Vs. Chandramani, (1996) 3 SCC 132 and N.Balakrishnan Vs. M.Krishnamurthy, AIR 1998 SC 3222, wherein, it has been held

that when a case has merit, consideration of the application for condonation of delay should be made accordingly.

Accordingly, the application under Section 5 of the Limitation Act is allowed. The delay in filing appeal is condoned.

In view of the discussion made above, the appeal is allowed. The order dated 30th November, 2017 passed by learned Single Judge is set aside.