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P.R. Bora, J.�Civil Application (W) for Amendment: Today, when the matter was called out for hearing at admission stage, application for amendment of writ petition is submitted across the Court. Petitioner desires to bring on record the subsequent event of his acquittal from Regular Criminal Case No. 330 of 2010 by amending the petition. Application is not opposed by learned Assistant Government Pleader appearing for respondents. In view of the fact that relevant subsequent event is intended to be brought on record, application is allowed. Office to register the application. Petitioner to carry out amendment forthwith. W.P. No. 396 of 2014: Rule. Heard forthwith by consent of parties.
This petition involves a short but important question of law viz. Whether termination of the services of the petitioner merely on the ground of pendency of one criminal case against him on the date of his appointment would legally sustain?
Petitioner has challenged the judgment in Original Application No. 707 of 2012 passed by the Nagpur Bench of the Maharashtra Administrative Tribunal (hereinafter referred to as the "Tribunal") whereby it has dismissed the OA so filed by the present petitioner seeking quashment of order dated 10.8.2012 passed by respondent No. 2 herein terminating the services of the petitioner. Consequently, the petitioner has sought quashment of the aforesaid order of termination in the present writ petition also.
Relevant facts are thus-
In pursuance of the advertisement published in the newspaper on 18.2.2012 by the office of Collector, was him calling upon qualified candidates to apply for recruitment to various posts such as - typist, junior clerk, driver, peon etc., the petitioner had also applied for appointment on the post of Peon as a candidate belonging to OBC category. Petitioner was duly selected to be appointed as a Peon on the vacant post at Tahsil Office, Karanja in the open category vide order dated 12.6.2012 under the signature of the Collector, Washim (respondent No. 2 herein). On 12.7.2012 petitioner joined as Peon at Tahsil Office at Karanja. On 20.7.2012 petitioner filled in the attestation form and supplied all details as required in the said form. Since criminal case was pending against him, petitioner provided particulars of the said criminal case in the attestation form. In an affidavit sworn in by the petitioner on 3.8.2012 also he disclosed about the pending criminal case in the Court of Judicial Magistrate, First Class, Washim for the offences punishable under Sections 420, 468, 471 read with Section 34 of the Indian Penal Code. On 4.8.2012 a show-cause notice was issued to the petitioner under the signature of respondent No. 2 calling upon him to furnish reasons as to why his services should not be terminated in view of pendency of criminal case against him. Petitioner gave a detailed reply to the said show-cause notice on 6.8.2012 and explained that the charges levelled against him in the said complaint were patently false. On 10.8.2012 the services of petitioner came to be terminated on the ground that the criminal proceedings were pending against him. On 13.8.2012 petitioner was relieved from his service. On 16.8.2012 petitioner preferred OA under Section 19 of the Administrative Tribunals Act, 1985 before the Tribunal. OA so filed by the petitioner was dismissed on 27.8.2012. Aggrieved thereby, the petitioner has filed the present writ petition.
Shri A.M. Ghare, learned counsel appearing for the petitioner, inviting our attention to the attestation form filled in by the petitioner after joining duties with respondent No. 3, pointed out that against column 11A and 11B, petitioner has provided true and correct information and had also provided necessary particulars as regards the criminal case pending against him in the Court at Washim. Learned counsel then brought to our notice the contents of the Bond executed by petitioner on 3.8.2012 on stamp paper of Rs. 100/- wherein the petitioner has disclosed that a criminal case for the offences punishable under Sections 420, 468, 471 read with Section 34 of the Indian Penal Code is pending against him in the Court at Washim. Shri Ghare further submitted that since the petitioner did not suppress any material information nor did provide any incorrect or false information, there was no reason for taking any action against the petitioner muchless an action of terminating his services on the said ground. Learned counsel further submitted that in response to the show-cause notice dated 4.8.2012 issued by the Collector, Washim, petitioner has submitted his explanation immediately on 6.8.2012, however, ignoring the said explanation, respondent No. 2 passed an order on 10.8.2012 terminating the services of the petitioner on the ground that a criminal case is pending against him. Learned counsel submitted that no report, as envisaged in clause 5 of the terms and conditions incorporated in the letter of appointment dated 12.6.2012, was called for or received from the Superintendent of Police, Yavatmal in respect of character and antecedents of the present petitioner without which, in fact, no order could have been passed by the Collector, Washim terminating the services of petitioner.
Learned counsel further submitted that the learned Tribunal has failed in appreciating all these aspects and by making wrong interpretation of condition No. 5 incorporated in the appointment order dated 12.6.2012 dismissed the Original Application filed by the petitioner. Learned counsel further brought to our notice that by amending the present petition, petitioner has brought on record the subsequent fact of his acquittal in Criminal Case No. 330 of 2010 pending against him at the time of his entering into service. Learned counsel invited our attention to the judgment of the Court of Chief Judicial Magistrate, Washim in the said criminal case to urge that the petitioner has been acquitted of the offences charged against him since the prosecution could not bring any evidence against the petitioner to substantiate the charges levelled against him. Learned counsel, therefore, prayed for setting aside the order passed by the Tribunal and the order passed by respondent No. 3 dated 10.8.2012 whereby he has terminated the services of the petitioner.
Shri A.S. Fulzele, learned Assistant Government supported the order passed by the Tribunal. According to learned Assistant Government Pleader, since a criminal case was pending against the petitioner for the offences punishable under Sections 420, 468, 471 read with Section 34 of the Indian Penal Code, it was within the jurisdiction of the Appointing Authority i.e. respondent No. 3 to terminate the services of the petitioner on the said ground. Learned AGP submitted that before passing the order of termination, show-cause notice was issued to the petitioner, however, the explanation offered by him did not find favour by the Appointing Authority and his services came to be terminated. Learned AGP submitted that in such circumstances, no error can be found in the action taken by respondent No. 3 impugned in the present petition. He, therefore, prayed for dismissal of the petition.
We have carefully considered the submissions advanced by learned counsel for the petitioner and learned AGP appearing for respondents. We have also perused the order passed by the Tribunal as well as the other documents placed on record.
At the outset, it has to be stated that the petitioner has not been terminated on the ground of concealment of particulars which ought to have been disclosed either in the application form or attestation form. It is also not the case of the respondents that on verification of antecedents the petitioner was found unsuitable for appointment to the post. He has been terminated merely on the ground of pendency of one criminal case against him.
On perusal of the order of termination, it is evident that relying on condition No. 5 incorporated in the order of appointment dated 12.6.2012, respondent No. 3 has terminated the services of the petitioner. Judgment of the Tribunal also shows that the Tribunal has refused to interfere in the order of termination relying on the said condition No. 5 and that seems to be the only reason for dismissing the Original Application filed by the petitioner. We find it necessary to reproduce hereinbelow the said condition No. 5, which reads thus-
What is envisaged by the aforesaid condition is that a report will be called in respect of the antecedents and character of a person appointed from the Superintendent of Police of the concerned District and the appointment will be subject to the said verification report. It further states that if the report of Superintendent of Police in respect of antecedents and character of the appointee is found unsatisfactory, the candidate will be terminated from service without giving any prior notice or intimation to him. The aforesaid condition which relates to the character of the candidate, however, no where provides that pendency of a criminal case against a candidate shall disqualify his entry and/or retention into services. Since the said condition was invoked, it is necessary to see whether the said condition could have been applied to the case of petitioner.
After having gone through the entire record of the case, we did not find any report on record in respect of the character or antecedents of the petitioner from the Superintendent of Police, Washim. In the Return filed by the respondents also, it is no where contended that said report was called for or submitted by the Superintendent of Police, Washim. It is thus evident that without calling for or without there being any such character verification report by the Superintendent of Police on record, the services of the petitioner came to be terminated.
It was argued by learned AGP that since it was writ large from the information provided by the petitioner himself that a criminal case for the offences punishable under Sections 420, 469, 471 read with Section 34 of the Indian Penal Code was pending against him in the court at Washim, to call for record from the Superintendent of Police, Washim in respect of the character and antecedents of the petitioner was or would have been an empty formality. Learned AGP submitted that in such circumstances, merely because there is no character verification report on record, the impugned order cannot be faulted with and cannot be held as illegal.
It is difficult to accept the argument advanced on behalf of the respondents. We have carefully perused the advertisement dated 18.2.2012 in pursuance of which the petitioner applied to the post of Peon and was selected after having undergone the recruitment process. Paragraph 10 of the said advertisement pertains to the documents to be annexed by the aspiring candidate with the form of application. None of those documents pertains to any information as regards the pendency of any criminal case against the said candidate or his involvement in any criminal case and/or conviction, if any, suffered by the said candidate. Clause 11 of the said advertisement contains the general terms and conditions. There are total 25 such conditions of which condition No. 20 only appears to be relevant so far as the subject-matter of the present petition is concerned. It reads thus-
Similarly, in the order of appointment, though there are around fifteen terms and conditions incorporated, condition No. 5 is only relevant to be decide the controversy in the present matter which we have already reproduced hereinabove.
Condition No. 5 as regards to the verification of character and antecedents of the candidate who has secured appointment is embodied in the order of appointment so as to test whether he is suitable to the post to which he has been appointed. However, as stated earlier, in the instant case, neither any such report was called from the Superintendent of Police of the concerned District about the character and antecedents of the petitioner nor any opinion seems to have been formed by the Appointing Authority that the petitioner is not suitable to be continued in the Government service on the post of Peon as appointed on the strength of order dated 12.6.2012.
In so far as condition No. 20 incorporated in the advertisement published on 18.2.2012 is concerned, it is not the case of respondents that the petitioner has submitted any false information or has suppressed any material information. No doubt, in the said condition it is averred that if the antecedents of the candidate are found to be unsatisfactory, his appointment would be liable to be cancelled at any stage. Here also, the question arises, whether any such adverse opinion was formed in the case of the present petitioner before terminating his services? The order of termination does not contain any such opinion or any such reason that because of bad antecedents of the petitioner, he cannot be continued in the service.
According to us, the very purpose of seeking information as per columns 11-A and 11-B is to see the nature or gravity of the offence charged against the concerned employee with a view to judge the character and antecedents of the said employee to continue in service or not. At the first instance, the Collector (respondent No. 2) and thereafter the Tribunal, both have failed to see this aspect of the matter.
We reiterate that the only reason stated in the order of termination is that a criminal case for the offences punishable under Sections 420, 468, 471 read with Section 34 of the Indian Penal Code is pending against him in the Court at Washim. The question that arises is, the person who has successfully undergone the entire recruitment process and who has voluntarily disclosed about the pendency of criminal case against him whether can be terminated merely on the ground that the said criminal case is pending against him. The answer is, of course, ''No''. We say so for the reason that there is no such provision and/or condition either in the advertisement published or in the letter of appointment issued to the petitioner which would disqualify the candidate involved in a criminal case or against whom a criminal case is pending from securing the employment. The requirement was that the candidate shall disclose true and correct information required to be submitted by him and in case the information so provided is found incorrect or false or if it noticed that some material information has been suppressed by the candidate concerned, his appointment will be liable to be cancelled and he will be disqualified at any stage of the recruitment process.
Similarly, condition No. 5 in the order of appointment also no where suggests that a candidate against whom a criminal case is pending would not be liable for appointment and if already appointed, to be continued in service. Perusal of both the aforesaid conditions makes it amply clear that pendency of a criminal case is not regarded as a disqualification for securing the appointment. The Rules no where provide that pendency of a criminal case against a candidate would disqualify him to enter the Government service. The reason for this is obvious. Pendency of a criminal case cannot lead to a conclusion of committing the offence by the accused. Presumption is otherwise. No person is presumed to be guilty of an offence unless convicted by a competent court after trial. Refusal of appointment or termination of appointment only on the ground of pendency of criminal case would, therefore, result in causing injustice to the candidate who subsequently gets acquittal in the said case because by that time he would have lost the opportunity to enter into the Government service.
The Legislature in its wisdom has rightly thought it proper not to include any such provision in the service rules providing pendency of a criminal case to be taken as disqualification for entering into the service. The language deployed in the Service Rules only require that character of a candidate for direct recruitment must be such as to fit him for public service. That is the reason why the report in respect of character and antecedents of the person newly recruited on any post in the government office is called from the Police Authorities. It further envisages that in case of receiving any adverse report, the concerned candidate will be liable to be removed without any pre-intimation.
In the present case, since the petitioner had not suppressed any material information or had not submitted any false information and/or documents, there was no reason for pressing into service clause 20 of the general terms and conditions which was part of the advertisement dated 18.2.2012. Secondly, since no report was called for in respect of the character and antecedents of the petitioner from the Superintendent of Police, Washim, clause 5 of the appointment order also could not have been pressed into service. The order of termination thus appears to be patently illegal.
It is further transpired that though a show-cause notice was issued to the petitioner before terminating his services and though petitioner has submitted his explanation accordingly, while passing the order, respondent No. 2 has not even considered the explanation so submitted by the petitioner. We have carefully perused the order dated 10.8.2012 whereby respondent No. 2 terminated the services of the present petitioner. It reveals that while passing the said order, only two documents were considered by respondent No. 2 - first, the order of appointment dated 12.6.2012 and second, the attestation form and bond submitted by the petitioner himself. Even in the order passed by respondent No. 2, there is no reference of issuance of any show cause notice to the petitioner and/or any explanation submitted by the petitioner to the said notice. Thus, merely on the ground that a criminal case was pending against the petitioner, his services came to be terminated. We are not told as to how the explanation submitted by the petitioner to the show-cause was disposed of either. Did respondent No. 2 ever have a look at it, before passing the order of termination? From the documents on record, it does not appear so. The termination of the services of the petitioner under the circumstances was without any proper application of mind and without taking into account all relevant material.
Learned Tribunal while deciding Original Application filed by the petitioner seems to have proceeded on a wrong footing and failed in properly appreciating condition No. 5 in the order of appointment. Only on the basis of a pending criminal case against the petitioner it was wrong on the part of the Tribunal to reach to a conclusion that he was not suitable to be appointed on the post to which he was appointed, more particular when respondent No. 2 has also not recorded any such opinion and when condition No. 5 too no where suggests any such inference. Calling explanation from the petitioner by respondent No. 2 before passing order of termination was not an empty formality. Show-cause notice was issued to the petitioner so as to provide him an opportunity to explain in what circumstances a criminal case was filed against him. Many a time it happens that people are falsely implicated in criminal cases and ultimately, they get clean acquittal. It is a common experience that in the cases under Section 498A of the Indian Penal Code, many a times all family members of the husband are impleaded as accused just to twist the arms of the husband. Ultimately, nothing comes out against majority of them. In such circumstances, barring the appointments on some sensitive posts and looking to the nature and responsibilities of the said post unless a person is convicted by a competent court after trial, mere pendency of the criminal case cannot be a ground for refusing him the employment or for his discontinuation if he is already employed. In the instant case, the petitioner was appointed on the post of Peon.
In the explanation submitted by the petitioner to the show-cause notice he has candidly stated that he has been falsely implicated in the alleged crime. He has further informed that the trial of the said case had begun and few witnesses were examined by the prosecution. The petitioner has further strenuously urged that he is confident of his acquittal in the said case and, therefore, he should not be terminated till decision of the criminal case. Now, by way of amendment, the petitioner has brought on record the fact of his acquittal from the said case and has filed on record the copy of judgment delivered by the Chief Judicial Magistrate, Washim in the said criminal case. On perusal of the judgment in the said criminal case, it is revealed that no evidence has come on record against the petitioner so as to prove the charges levelled against him. Charge against the petitioner was that he had procured false and bogus disability certificate and had submitted the same to the Social Welfare Department for the purpose of securing employment. The trial Court has recorded a finding that the prosecution has utterly failed to prove that the accused had submitted the said certificate to the Social Welfare Department or that it was secured by the accused.
While distinguishing the judgment in the case of Commr. of Police and Others Vs. Sandeep Kumar, , the finding recorded by the learned Tribunal is apparently wrong. The Tribunal has observed that in the said case, the respondent therein was already acquitted whereas in the present case a criminal prosecution was still pending against the applicant and thus, possibility of applicant''s conviction cannot be ruled out. As we have stated earlier, mere pendency of criminal prosecution against a person can never become an obstacle for securing him appointment unless he is convicted by a court of competent jurisdiction after trial of the said case and till then the person concerned is presumed to be an innocent person. The presumption is always in favour of the innocence of the accused. It was thus, apparently wrong on the part of the Tribunal to presume that the petitioner may be convicted in the case pending against him and to refuse him the relief on that ground. Now, it has come on record that the petitioner has been acquitted in the criminal case pending against him. The presumption of the Tribunal has thus been proved to be wrong.
From the discussion made by us hereinabove, it is quite clear that the services of the petitioner have not been terminated on the ground that his character is such which makes him unsuitable for service, neither it is the case of respondent that there is any adverse report against the petitioner after verification of his antecedents. Hence, we are of the definite view that merely on the ground of pendency of a criminal case against him from which also he has been subsequently acquitted, the services of the petitioner have been wrongly terminated. The order of termination is thus liable to be quashed and set aside.
We reiterate that clause (5) in the order of appointment, reproduced hereinabove specifically requires the verification of the character and antecedents of the candidate selected so as to test whether selected candidate is, suitable to the post to which he has been appointed. In the present case, admittedly, there is no such verification report and the appointing authority also has not recorded or expressed any opinion in favour or adverse to the petitioner. In such circumstances, though we are directing the reinstatement of the petitioner for the reasons recorded above, after reinstating the petitioner to his post, the respondents may, if it is really and genuinely required, call the verification report from the Superintendent of Police, Washim in regard to the character and antecedents of the petitioner and on objective assessment of the said report take the suitable decision without any prejudice. In the result, the following order is passed:
ORDER
(i) Writ Petition No. 396 of 2014 is allowed.
(ii) Order dated 27.8.2012 passed by the Maharashtra Administrative Tribunal in OA No. 707 of 2012 and order of termination dated 10.8.2012 issued by respondent No. 2 are quashed and set aside.
(iii) Respondents are directed to reinstate the petitioner in service on the post on which he was appointed and to extend him all consequential benefits.
(iv) Rule made absolute in the above terms. No costs.