Manoj Kumar vs Union of India

Rajiv Narain Raina, J.—This is a rather unfortunate case. The petitioner was selected and appointed as a Cook in the Indo-Tibetan Border Police (ITBP) and was posted in 9th Battalion, ITBP Force, Arunachal Pradesh. He joined service on 25.5.2012. He was on probation. He was issued a show cause notice on 2.5.2013 as to why his name be not removed and his services terminated on the ground of furnishing false information/withholding information about the pendency of criminal cases or acquittal in Column No. 12 of the enrolment form. The respondent ITBP received a character verification report from the District Magistrate, Mahendergarh, Narnaul dated 28.9.2012 informing ITBP that a case FIR No. 243 dated 7.8.2007 was registered against the petitioner under Sections 363, 366, 376 and 506 IPC in Mahendergarh and was acquitted by the trial court on 26.7.2008. He filed reply to the show cause notice on 13.7.2013 taking the defence that he was a ''less educated person'' and could not comprehend the future import of Column No. 12 on his appointment since he had long back been acquitted of the charge in the criminal case. He erred in not mentioning the same in the enrollment form. His reply was considered and the respondents vide order dated 19.10.2013 removed the petitioner from service in exercise of power under rule 22 read with rule 17(iv) of Indo-Tibetan Border Police Force Rules, 1994. Against the removal order the petitioner has approached this Court through the present petition under Article 226 of the Constitution praying that the same be quashed and he be ordered to be reinstated in service. Column No. 12 of the enrollment form and answer given by the petitioner are reproduced below:-

"(a) Whether you have been arrested for any offence or a case has been registered against you or you have been kept into custody or you have been released on bail or you have been fined by any court or the charge has been proved or you have been declared ineligible/restrained for any sort of examination by any Public Service Commission or any University of Education Board has deprived of you/turned out from any examination? (answer was ''No'')

(b) At the time of filing this verification form whether there is any case going on against you in any court of University or any Educational Department/Board? If the reply to (a) or (b) is Yes then give the detail of case, arrest, custody, fine, proving of charge, punishment etc., and explain that at the time of filing this form what type of case is pending in the court/University/Education Board (the Reply was ''No'')".

The appointment to the post was made on the strength of self declaration of the employee under the terms and conditions that prescribed that in case of receipt of adverse report regarding character and previous conduct on background check, the person was liable to be dismissed or removed from service. In the order of removal passed on 10.9.2013, it has been recorded that the acquittal of the employee was on the basis of giving the benefit of doubt. However, learned counsel for the petitioner submits on the strength of the decision of the Supreme Court rendered in Commr. of Police and Others Vs. Sandeep Kumar, and the observations therein that young people often commit indiscretions and judicial approach should be to condone such indiscretions rather than branding them as criminals for rest of their lives. This was also a case of non-disclosure in the enrolment form of past involvement in a criminal case. The respondent before the Supreme Court had been appointed as a Head Constable (Ministerial) and did not disclose in the enrolment form of his involvement in a criminal case registered under Sections 325/34 IPC when he was aged about 20 years. The Court did not find the offence under Sections 325/34 IPC as a serious enough offence and, therefore, showed the path of a more lenient view and that Court should apply a more humanistic test for considering such a case even though offences involved were somewhat heinous in nature. The appeal was against the judgment of the Delhi High Court quashing cancellation of candidature. The view of the Delhi High Court was upheld but from a broader perspective.

In Commissioner of Police, New Delhi and Another Vs. Mehar Singh, the Supreme Court dealt with a situation where an aspirant for the post of Constable (Exe.) in Delhi police and was provisionally selected but not offered appointment after he was examined by the Screening Committee following background check and found him unsuitable for appointment for his involvement in a criminal case although it was compromised between the parties. He was acquitted of the offences under Sections 323, 341 and 427 of the Indian Penal Code. Mehar Singh had disclosed in his declaration form that there was an FIR registered against him which case was compromised which led to his acquittal. He was issued notice to show cause why his candidature be not cancelled. In reply he submitted that he was falsely implicated in the criminal case but was acquitted. Mere registration did not disclose criminal propensity. The Screening Committee observed that Mehar Singh had assaulted a bus conductor with an iron chain; belt and stones in a pre-planned manner and caused injuries to him which showed violent nature and scant respect for the law. Aggrieved, Mehar Singh filed OA before the Central Administrative Tribunal, Principal Bench, New Delhi which was allowed. The cancellation order was set aside. The Tribunal found a couple of cases in which persons charged with Section 307 IPC were appointed by the respondent police. The writ petition filed by the police department in the Delhi High Court failed. In the appeal before the Supreme Court both the orders were challenged. It was argued that employment in Delhi Police is of a very sensitive nature. Therefore, character, integrity and antecedents of a candidate aspiring to join it, assumes importance. Acquittal of a person in a criminal case does entitle him to appointment or reinstatement as a matter of right. The appointing authority may still find such a person unfit to be appointed to the post. If some persons with criminal antecedents were appointed in the past; the doctrine of equality is not attracted to such cases. The Supreme Court observed in paragraphs 19, 21 and 28 of the report:

A careful perusal of the policy leads us to conclude that the Screening Committee would be entitled to keep persons involved in grave cases of moral turpitude out of the police force even if they are acquitted or discharged if it feels that the acquittal or discharge is on technical grounds or not honourable. The Screening Committee will be within its rights to cancel the candidature of a candidate if it finds that the acquittal is based on some serious flaw in the conduct of the prosecution case or is the result of material witnesses turning hostile. It is only experienced officers of the Screening Committee who will be able to judge whether the acquitted or discharged candidate is likely to revert to similar activities in future with more strength and vigour, if appointed, to the post in a police force. The Screening Committee will have to consider the nature and extent of such person''s involvement in the crime and his propensity of becoming a cause for worsening the law and order situation rather than maintaining it. In our opinion, this policy framed by the Delhi Police does not merit any interference from this Court as its object appears to be to ensure that only persons with impeccable character enter the police force."

Further, it was observed:

"21. This Court Management of AIR 1994 552 (SC) observed that the expressions ''honourable acquittal'', ''acquitted of blame'' and ''fully exonerated'' are unknown to the Criminal Procedure Code or the Penal Code. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression ''honourably acquitted''. This expressed that when the accused is acquitted after full consideration of prosecution case and the prosecution miserably fails to prove the charges leveled against the accused, it can possibly be said that the accused was honourably acquitted. In light of above, we are of the opinion that since the purpose of departmental proceedings is to keep persons, who are guilty of serious misconduct or dereliction of duty or who are guilty of grave cases of moral turpitude, out of the department, if found necessary, because they pollute the department, surely the above principles will apply with more vigour at the point of entry of a person in the police department i.e. at the time of recruitment. If it is found by the Screening Committee that the person against whom a serious case involving moral turpitude is registered is discharged on technical grounds or is acquitted of the same charge but the acquittal is not honourable, the Screening Committee would be entitled to cancel his candidature. Stricter norms need to be applied while appointing persons in a disciplinary force because public interest is involved in it."

Still further it was reasoned:

"28. The police force is a disciplined force. It shoulders the great responsibility of maintaining law and order and public order in the society. People repose great faith and confidence in it. It must be worthy of that confidence. A candidate wishing to join the police force must be a person of utmost rectitude. He must have impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged in the criminal case, that acquittal or discharge order will have to be examined to see whether he has been completely exonerated in the case because even a possibility of his taking to the life of crimes poses a threat to the discipline of the police force. The Standing Order, therefore, has entrusted the task of taking decisions in these matters to the Screening Committee. The decision of the Screening Committee must be taken as final unless it is mala fide. In recent times, the image of the police force is tarnished. Instances of police personnel behaving in a wayward manner by misusing power are in public domain and are a matter of concern. The reputation of the police force has taken a beating. In such a situation, we would not like to dilute the importance and efficacy of a mechanism like the Screening Committee created by the Delhi Police to ensure that persons who are likely to erode its credibility do not enter the police force. At the same time, the Screening Committee must be alive to the importance of trust reposed in it and must treat all candidates with even hand."

In such matters, the cardinal principles evolved have been summarized succinctly by the Supreme Court in Jainendra Singh Vs. State of U.P. Tr. Prinl. Section Home and Others, These are:-

"(i) Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer.

(ii) Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if find not desirable to appoint a person to a disciplined force can it be said to be unwarranted.

(iii) When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry.

(iv) A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services.

(v) Purpose of calling for information regarding involvement in any criminal case or detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have clear bearing on the character and antecedents of the candidate in relation to his continuity in service.

(vi) The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service.

(vii) The standard expected of a person intended to serve in uniformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted.

(viii) An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, conviction or detention, even if ultimately he was acquitted of the said case, inasmuch as such a situation would make a person undesirable or unsuitable for the post.

(ix) An employee in the uniformed service presupposes 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.

(x) The authorities entrusted with the responsibility of appointing Constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a Constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of Constable. When we consider the above principles laid down in majority of the decisions, the question that looms large before us is when consideration of such claim by the candidates who deliberately suppressed information at the time of recruitment; can there be different yardsticks applied in the matter of grant of relief".

Jainendra Singh was a case of discovery of criminal antecedents of a person after appointment to service. All the issues formulated above are premised on suppression of facts. However, noticing conflict of opinions of the Supreme Court applying different yardsticks in the matter of grant of relief in several cases the above issues were formulated and have referred them to a larger bench but after setting aside the orders of the Tribunal and the High Court and upholding the cancellation of candidature of Mehar Singh and another. I find no serious legal infirmity in the impugned order and am therefore disinclined to interfere in the matter and would for the foregoing reasons dismiss the petition in limine. However, this order will remain subject to final outcome of the decision of the larger bench of the Supreme Court on the issues raised in Jainendra Singh. No costs.