Manoj Kumar Saini vs State of C.G. and Others

Navin Sinha, Actg. C.J.

The present appeal arises from order dated 12-12-2013 dismissing Writ Petition (S) No. 3146 of 2013. The learned Single Judge held that the appellant having obtained appointment by suppression of the pendency of a criminal case against him, which was discovered during verification of character and antecedents was sufficient to discharge during probation. Learned Counsel for the appellant submitted that the writ petition came to be disposed by a common order with a batch of several writ petitions. The learned Single Judge noticed that there were two categories of cases before him, one relating to non-disclosure of criminal antecedents prior to joining of service and another batch where the offence was committed after joining service. The appellant joined service as Home Guard on 1-10-2012. On that date, there was no criminal case pending against him. His wife lodged an FIR against the appellant and his family under Section 498-A/34, IPC on 2-10-2012. The appellant filled up the police verification form thereafter on or about 8-11-2012 and also made disclosure with regard to the subsequent institution of a case by his wife and that he was on anticipatory bail. The respondents were, therefore, not justified in dispensing with his service on the ground that he obtained employment by suppression of any fact with regard to pendency of a criminal case against him. The learned Single Judge despite noticing the two categories of cases, did not discuss the later category in which the appellant fell and arrived at an unreasoned conclusion with regard to the appellant. The order under appeal was, therefore, not sustainable.

Learned Counsel for the State submitted that the appellant was not in the regular police force but was appointed as a Home Guard, which is a voluntary force. The order for discharge refers to memo dated 27-7-2013. It provides that the moment a criminal case was registered, the person had to be removed from service immediately. There has been thus no error in dispensing with the services of the appellant and the fact that the criminal case may have been registered after joining service was not very relevant. The instruction was clear to the effect not to keep such persons in service.

We have heard Counsel for the parties. The appellant was appointed on 1-10-2012. On that date, there was no criminal case pending against him. If a person secures appointment in service by stating falsehood or withholding relevant information with regard to his character, which will include institution of a criminal prosecution, if it is desired by the employer, he can certainly be discharged during probation simplicitor on the ground of having obtained employment by suppression and concealment. Relevance of a criminal case having been filed at the stage prior to the appointment and concealed before appointment will have to be different from a criminal case filed against a person after he has been appointed in service. If there has been no suppression by the candidate at the time of obtaining employment, the institution of criminal case against him subsequently vests enough power in the authorities to deal with him under the service rules. At this stage, to hold that merely because he has been made an accused, he must be removed from service tantamounts to pre-judging accusation even before he has faced trial. The appointment was not obtained by any suppression or misrepresentation. If conviction follows in the criminal trial, the respondents have adequate powers to deal with the delinquent under the service rules again.

Quite apparently, there has been no suppression or concealment at the time appellant obtained appointment as there was no criminal case pending against him. The reliance on memo dated 27-7-2013 in our opinion, is not appropriate. We are not inclined to pick up a line from the memo and then decide what it means. Reading the memo in its entirety, what transpires is with reference to the earlier memo dated 29-6-2013, it holds that where a person was made accused in a criminal case, they are not to be reinstated or retained in service only because they may have been acquitted. All such persons who have been re-inducted consequent to acquittal are required to be removed from service. It has no application to the facts of the present case.

The appellant was recruited under the Madhya Pradesh Home Guards Act, 1947 (hereinafter referred to "the Act"). He has not been discharged on the ground of a probationer simplicitor but with a stigma that there was a criminal case against him, which he had not disclosed. The Madhya Pradesh Home Guards Rules, 1947 (hereinafter referred to as "the Rules") framed under the Act provides for qualification and recruitment of a Home Guard. Regulation 4(d) prohibits appointment of a person who has been sentenced to imprisonment for offence involving moral turpitude. Regulation 4(f) of the Rules provides for a good character. At this stage, merely on the basis of institution of a criminal case, to hold that the appellant does not have a good character would amount to pre-judging the trial itself.

The learned Single Judge noticed there were two categories of cases. One with regard to a criminal case pending on the date of appointment and concealed. The other with regard to there being no criminal case on the date of appointment but subsequent in time. The latter category does not engage any discussion in the order as to why such appointment shall also stand vitiated.

Should conviction follow, the authorities have sufficient powers under Regulation 4(d) of the Rules apart from the instructions, dated 27-7-2013 issued in respect thereof to deal with the appellant appropriately.

The order under appeal is, therefore, held to be unsustainable. The appellant is reinstated in service. The appeal is allowed.