Mallappa Holkundi vs The Special Director General

B.S. Patil, J.—Petitioner was enlisted as constable on 21.05.2010 in Central Reserve Police Force at Group Centre, Bangalore and was allotted to 116 Battalion. On 11.09.2011, notice of termination of his service was issued to him invoking Rule 5(1) of Central Civil Services (Temporary Service) Rules, 1965 (for short, ''the Rules''), by the Commandant of the Office of Director and Inspector General of Police, Group Centre, CRPF, Muzaffarpur, (Bihar). By the said termination notice-Annexure-A, petitioner was informed that his service stood terminated with effect from the date of expiry of a period of one month from the date on which the notice was served on him or tendered to him. This was followed by office order dated 22.11.2011 passed by the Commandant, 116 Battalion, CRPF, Muzaffarpur, whereby the name of the petitioner was ordered to be struck off from the strength of Unit with effect from 22.11.2011 on expiry of the period of one month (notice period) from the date of service of notice. This was challenged by the petitioner by filing an appeal before the Inspector General of Police, Border Security, CRPF, Patna, (Bihar).

By order dated 06.03.2012, the Inspector General of Police has, after going through the records and comments furnished by the authorities, rejected the said appeal. The said order makes it very clear that while carrying out verification of the character and antecedents of the petitioner, the Deputy Commissioner, Gulbarga, vide letter dated 21.09.2010 had communicated about the accusation made against petitioner in Case No. 49/2007 registered by Nimbarga Police under Sections 324 and 504 of IPC, which had resulted in acquittal on 25.03.2008. Besides, petitioner was involved in Case No. 51/2007 under Section 107 of Cr. PC, which was closed on 18.12.2007 by the Taluka Magistrate, Aland.

On the ground that petitioner had failed to inform about his involvement in these two cases while filling up CRPF Form No. 25 (Character and Antecedent Role) and on alleged suppression of fact from the department, the Appellate Authority found that the notice of termination dated 11.09.2011 had been given to petitioner and it was in that background his services were terminated under the Provisions of Rule 5(1) of the Rules. The appellate authority has further proceeded to hold that comments furnished by the concerned authorities revealed that he had failed to disclose about accusations made against him in criminal cases and therefore termination of his service was justified. The appellate authority has also come to the conclusion that as the appellant had tried to conceal the facts while filling up verification roll and had thereby kept the department in dark, he was guilty of dishonesty and hence order of termination was upheld and appeal was dismissed. Against this order of the appellate authority, petitioner preferred a revision petition before the Special Director General, Central Zone, Central Reserve Police. Force, Salt Lake, Sector-III, Kolkata-700106. (West Bengal). By order dated 22.06.2012, the revisional authority dismissed the petition holding that there was no provision to prefer revision. Aggrieved by the orders passed by the authorities, this petition has been filed.

I have heard the learned Counsel for the parties. Respondents were given sufficient opportunity to make available the records and file statement of objections. In fact, on 02.06.2014 after hearing the learned Counsel for the petitioner, following order was passed:--

Heard the counsel for the petitioner.

Prima facie, I find that termination of service of the petitioner is on the ground that he has suppressed certain material facts with regard to his involvement in the criminal case and that the criminal case, according to the learned Counsel for the petitioner, was registered after he filed application seeking appointment and that the case has subsequently ended in acquittal.

In any event, it is his submission that without holding an enquiry such an order terminating the service on the allegation of misconduct of suppressing material fact could not have been passed.

On 28.04.2014, this Court has permitted the Central Government Standing Counsel to secure the records relating to the recruitment of the petitioner. Again time is sought by him to secure the records.

Hence, finally, list on 11.6.2014.

The matter had been adjourned from time to time and as many as four adjournments had been given and before passing the above order. The respondents have not made available the records. However, the Central Government Standing Counsel has supported the orders under challenge contending inter alia that as the petitioner was appointed in a temporary service and as he had not disclosed material facts, the authorities have terminated his service and the said termination does not impose any stigma on the petitioner.

Learned counsel for the petitioner at the outset contended that even as on the date of filing of application for the post for which he was appointed mere was no criminal case pending against petitioner and therefore there was absolutely no reason for the petitioner to mention the same in the application. He further points out that as criminal cases instituted against the petitioner long back had been closed and there were no adverse findings recorded by the Court against him, there was no occasion for the petitioner to disclose the particulars of the said cases. At any rate, he urges that even assuming that there was omission on his part in not disclosing the details of the said cases, the same cannot be regarded as suppression of material facts from the department, let alone characterizing it as dishonest conduct on his part. He has placed reliance on the judgment of Apex Court in the case of Commr. of Police and Others Vs. Sandeep Kumar, .

Having heard the learned Counsel for both parties and on careful perusal of materials on record, I find from the order of the Appellate Authority which is produced at Annexure-D, that the sole reason for termination of service of the petitioner is communication by the Deputy Commissioner, Gulbarga vide letter dated 21.09.2010, of the accusation made against petitioner regarding his involvement in offences stated to have been committed by him punishable under Sections 324 and 504 of IPC and also the proceedings under Section 107 of Cr. P.C. initiated by the Taluka Magistrate, Aland for breach of peace.

The criminal case booked for offences under Sections 324 and 504 R/w 34 of IPC, has, admittedly, ended in acquittal on 15.03.2008 and proceedings instituted under Section 107 of Cr. P.C. had been closed on 18.12.2007 by the Taluka Magistrate. It is thereafter that petitioner had applied to the post on 27.08.2009 pursuant to the notification issued inviting application for the post. It is not, as if, petitioner had been punished for any of these offences and he had actively concealed the same from the department. As the proceedings initiated had ended in his favour, he had felt that it was not necessary to disclose such facts. Therefore, it cannot be termed that he had actively concealed any important material regarding his conduct and character, which would have come in the way of his appointment or continuation. Therefore, the basis on which the authorities have proceeded to terminate his service is clearly erroneous. As is evident from the order of the appellate authority, petitioner is attributed with dishonest concealment of material fact. Although the notice of termination and the order of termination do not refer to the misconduct of concealment or suppression of the alleged misconduct, the order of the appellate authority makes it very clear that service of the petitioner was terminated solely on the ground that he had dishonestly concealed materials regarding his involvement in criminal cases from the department. Therefore, it is clear that though the termination order is couched in an innocuous language, the object and purpose behind such an exercise is directly attributable to the alleged misconduct said to have been committed by the petitioner. In such circumstances, it is well established by along line judgments of the Apex Court that an order terminating service, by issuing notice in terms of service contract or by way of discharge simplicitor has to be preceded by a detailed enquiry and only if the misconduct is proved, the employee can be proceeded against by imposing penalty.

As rightly contended by the learned Counsel appearing for petitioner placing reliance on the judgment of the Apex Court in the case of Commr. of Police and Others Vs. Sandeep Kumar, , wherein in some what similar circumstance, it is observed that minor indiscretions made by young people should be condoned while considering their candidature for appointment/selection. The approach of the Court should be to condone minor indiscretions made by young people. In the facts of the said case, the respondent-employee therein had applied for the post of Head constable. In the application form, the column requiring him to disclose whether he had been arrested, prosecuted, kept under detention etc., convicted by a Court of law for any offences against him, he had written ''No''. He got cleared in all the tests and was selected to the post. He filled up the attestation form wherein for the first time he disclosed that he had been involved in a criminal case with his tenant which, later on, had been compromised in 1998 and he had been acquitted. Thereafter, a show cause notice was issued to him. He submitted a reply, after considering the reply, the authorities cancelled his candidature. The Central Administrative Tribunal dismissed the application. The High Court held that cancellation of his candidature was illegal. After writ petition filed before the Delhi High Court was allowed, the matter was taken to the Supreme Court. In that background, the Apex Court made an observation that the view expressed by the Deputy Commissioner canceling the candidature was illegal. In the course of order, the Apex Court made the following observation in paras 11 to 13 as under:--

When the incident happened the respondent must have been about 20 years of age. At the age young people often commit indiscretions, and such indiscretions can often been condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives.

In this connection, we may refer to the character ''Jean Valjean'' in Victor Hugo''s novel ''Les Miserables'', in which for committing a minor offence of stealing a loaf of bread for his hungry family Jean Valjean was branded as a thief for his whole life.

The modern approach should be to reform a person instead of branding him as a criminal all his life.

In my considered view, the conduct of the petitioner in this case does not show any deliberate attempt to suppress material facts with dishonest intention. It is an act, which at best could be called as indiscretion and omission. It is true petitioner is required to serve a disciplined organization like Central Reserve Police. But, action to be taken against the candidates in such cases depends on the facts and circumstances of each case. Hence, keeping in mind the judgment rendered by the Apex Court and the facts and circumstances of the present case and the absence of any imputation of dishonest intention and total lack of findings in this regard by providing any opportunity to the petitioner, the petition filled by the petitioner deserves to be and is allowed. The impugned orders under challenge are set aside. Petitioner is ordered to be reinstated into service with all consequential benefits.