Nem Sai Urre vs State of Chhattisgarh

Prashant Kumar Mishra, J.—Heard learned counsel for the parties.

Petitioners are aggrieved by the impugned order whereby they have been discharged from the services as Home Guard/Nagar Sainik pursuant to submission of verification report regarding their character and antecedent by the concerned Superintendent of Police.

There are two batches of cases. One is non-disclosure of criminal antecedents prior to joining the service and other batch is where the offence has been committed after their joining in the service.

Indisputably, all the petitioners have been appointed as Home Guard/Nagar Sainik in the establishment of District Commandant, Home Guard, Surajpur. At the time of selection and joining the petitioners were required to fill up a verification form containing column 12 in the following mariner:--

All the petitioners did not mention pendency of any criminal case under the provisions of the Indian Penal Code (for short ''the IPC''), Gambling Act or proceeding u/s 107/116(3) of the Code of Criminal Procedure (for short ''the Cr. P.C.") against them. However, as per the procedure the matter was sent to the concerned Police Station for verification of their character and antecedent.

On verification, it was found that the petitioners have either committed any offence under the provisions of the IPC, Gambling Act or were proceeded u/s 107/116(3) of the Cr. P.C. Since they have not disclosed the pendency or initiation of the said criminal proceedings against them they have been discharged from the service during the period of probation.

Learned counsel for the petitioner would rely on the circular issued by the State Government on 20.12.2007 particularly para 6 thereof to submit that even in cases where information was not supplied by the candidate but the offence does not involve moral turpitude, the Police department is required to submit a report using its discretion about the eligibility or ineligibility. Placing further reliance on the judgment rendered by the Supreme Court in Commr. of Police and Others Vs. Sandeep Kumar, and the decision of this Court in Churendra Kumar Dhruw Vs. State of C.G. and Others, it has been strongly urged that the petitioners having never been convicted for committing any offence involving moral turpitude and the proceeding u/s 107/116(3) of the Cr. P.C. being not in the nature of a substantive criminal offence, the petitioners are entitled to continue in the service and the impugned order deserves to be quashed.

On the other hand, learned State counsel would place reliance on the judgment rendered by the Supreme Court in Union of India (UOI) and Others Vs. Bipad Bhanjan Gayen, to submit that cases in which the candidate has committed offence not involving mortal turpitude but has disclosed the same are different than the cases in which material information was concealed or withheld. Learned counsel would submit that in such cases the principle that the offence does not involve moral turpitude has no application, therefore, the said part of circular dated 20.12.2007 relied by the petitioners is not applicable in the present cases.

The Supreme Court in Commr. of Police and Others Vs. Sandeep Kumar, , observed that "It is true that in the application form the respondent did not mention that he was involved in a criminal case u/s 325/34, IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified." The Supreme Court further observed that "at any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter."

Although the judgment rendered by the Supreme Court in Commr. of Police and Others Vs. Sandeep Kumar, has been referred to larger Bench, but since thereafter, the Supreme Court in Devendra Kumar Vs. State of Uttaranchal and Others, it has been held that issue of obtaining the appointment by misrepresentation is no more res integra. The question is not whether the applicant is suitable for the post. The pendency of a criminal case/proceeding is different from suppressing the information of such pendency. The case pending against a person might not involve moral turpitude but suppressing of this information itself amounts to moral turpitude. In fact, the information sought by the employer if not disclosed as required, would definitely amount to suppression of material information. In that eventuality, the service becomes liable to be terminated, even if there had been no further trial or the person concerned stood acquitted/discharged.

According to the Supreme Court a person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent Court. In such a case the legal maxim nullus commodum capere potest de injuria sua propria applies. The persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation (Vide: Union of India and others Vs. Major General Madan Lal Yadav (Retd.), ) and Lily Thomas, Vs. Union of India and Others, ). Nor can a person claim any right arising out of his own wrong doing, (jus ex injuria non oritur).

In view of the above, since admittedly the petitioners have concealed or withheld material information regarding their antecedents and character, they are not entitled to continue in the service and their discharge from service during probation does not suffer from any infirmity or illegality. As an upshot, all the writ petitions, being devoid of merit, are liable to be and are hereby dismissed. No order as to costs.