Vinod Singh Tomar vs Union of India

Rohit Arya, J.—Heard.

By this writ petition under Article 226 of the Constitution of India, petitioner seeks to challenge order of termination dated 18.10.2010 and order dismissing the statutory appeal dated 02.09.2011.

Facts relevant and necessary for disposal of this writ petition are to the effect that the petitioner was selected provisionally for the post of Constable in Central Industrial Security Force (hereinafter referred to as CISF; Para Military Force) an Armed Force of Union of India. Letter of appointment dated 06.09.2008 was issued with a condition that he will be on probation for a period of two years subject to further extension of the period of probation. In special case, it is provided that in absence of specific order of confirmation or declaration of satisfactory completion of probation, member of Force shall be deemed to be on probation in terms of Rule 25 first proviso to rule 25, CISF Rule 2001 which reads as under:-

"25. Probation-(1) Every member of the Force except those appointed on deputation/absorption, shall be on probation for the period specified in relevant column of the Recruitment Rules:

Provided that in the absence of a specific order of confirmation or a declaration of satisfactory completion of probation, a member of the Force shall be deemed to be on probation.

Provided further that no member of the Force shall ordinary be kept on probation for more than twice the period prescribed in respective recruitment rules."

No order as regards successful completion of probation by the petitioner has been passed by the respondents and, therefore, he continued on probation.

Petitioner was required to fill up the attestation form as regards his character and antecedents and other details against the various columns provided therein. The attestation form is on record as Annexure R/1. The aforesaid form contains stipulation; WARNING inter alia provided:-

(i) ..........................................

(ii) ..........................................

(iii) If the fact that false information has been furnished or that there has been suppression of any factual information in the attestation form comes to notice at any time during the service of a person, his services would be liable to be terminated.

Column No. 12 inter alia required information supplied under various heads relevant amongst them are as follows:-

(a) Have you ever been arrested ?

(b) Have you ever been prosecuted ?

(c) Have you ever been kept under detention ?

(d) Have you ever been convicted by the Court of law for any offence ?

It is further provided, if answer to the any of the above mention question is YES, give full particulars of the case/arrest/detention/fine/conviction/sentence/punishment and/or the nature of the case pending in the Court/University /Educational Authority etc at the time of filling of this form.

A note is also appended thereto the following effect please also see Warning at the top of the attestation form.

Petitioner while filling up the aforesaid attestation form had struck of ------(Yes), therefore, answered ------(No)

In the process of verification of petitioner''s character and antecedents a report was received from Superintendent of Police, Morena dated 19.12.2009 (Annexure R/2) addressed to Commandant CISF, Civil Secretary Chandigarh in response to letter dated 15.10.2009 whereby it was informed that the petitioner involved in criminal case registered at Crime No. 35/2005 under Sections 324, 323 and 34 of IPC and he was arrested on 10.03.2005. After the trial, he was acquitted on 11.10.2005, as such, the aforesaid relevant informations were suppressed and not disclosed in the attestation form. As a result, in exercise of power under Section 25 (2) of CISF Rules, the petitioner''s services were terminated for deliberately suppressing the material fact in the attestation form. For ready reference Rule 25(2) of CISF reads as under:-

Probation (i) ...........................................

(ii) If during the period of probation of the appointing authority is of the opinion that a member of the Force is not fit for permanent appointment, the appointing authority may discharge him from the Force after issue of notice of one month or after giving on month''s pay in lieu of such notice, ....................................

Vide first impugned order dated 18.10.2010 (Annexure P/1)

Statutory appeal filed against such order has also been dismissed by the second impugned order dated 02.09.2011 (Annexure P/2). Appellate authority has dealt with the contentions of the petitioner in seriatim and passed a self contains explanatory order dismissing the appeal.

Learned counsel for the petitioner contends that since the petitioner had completed the period of probation successfully, therefore, his services would not have been terminated under Rule 25 of the CISF Rules without affording opportunity of hearing. It is further submitted that non mentioning of the case in which he was prosecuted was bonafide inasmuch he could not mention details of case as he was acquitted in that offences. It is further submitted that the petitioner is not a habitual offender, therefore, he ought not to have been visited with severe penalty of termination.

Per contra, learned counsel for the respondents submits that the CISF Para Military Force is a disciplined Armed Force of Government of India, such persons having criminal case, arrested and tried for criminal offence in criminal trial cannot be permitted to be a member of such distinguished and responsible Para Military Force. Petitioner continued to be on probation even after completion of two years of probation on the date of passing the impugned termination order, as there was no order or government authority of confirmation order, declaration of completion of probation period as provided for under proviso Rule 25 of CISF (supra). It is further submitted that at the time of appointment being offered, petitioner was required to fill up attestation form. He has suppressed information in clause-12(a) (b), (c) and (f) (supra), unmindful of Warning specifically mentioned in attestation form (supra) and further reiterated under Clause-12 as note-1. Due to the aforesaid conduct of the petitioner of suppression of material facts as regards criminal background referred to above, petitioner has been terminated by exercising power under Rule 25(2) of CISF Rules. There was no legal requirement of issuance of show cause notice as the petitioner was still on probation or before termination of employment requirement of payment of one month salary at the time of termination was duly complied with. With the aforesaid submissions respondents prayed for dismissal of the writ petition.

Learned counsel for the respondents relied on the judgments of the Supreme Court rendered in the case of Kendriya Vidyalaya Sangathan Vs. Mithun Yadav, reported in 2003 (3) SCC 457 para-12. 2012 (8) SCC para 17 and also in the case of Jainendra Singh Vs. State of U.P. Tr. Prinl. Section Home and Others, (2012) 134 FLR 1054 : (2012) 7 JT 307 : (2012) 7 SCALE 22 : (2012) 8 SCC 748 : (2012) 3 SLJ 289 : (2012) AIRSCW 4347 : (2012) 5 Supreme 215 and referred to paragraphs No. 29.02, 29.4, 29.5 and 29.6, thereto it is submitted that once there is specific stipulation in the attestation form requiring the candidate to supply specific informations and details as required, petitioner was required to supply detailed information so required under clause-12 of the attestation form. For the reason of having suppressed the aforesaid information and same having been provided to the appointing authority in process of verification through Superintendent of Police, Morena (Annexure R/2) that petitioner was prosecuted for offences under Sections 323, 324/ 32 of IPC, it is clear case of suppression of material particulars and Warning appended in the attestation form, petitioner is liable to penal action. Petitioner since continued a probation in absence of any order of conformation or successful completion of probation, his services were rightly terminated under Rule 25(2) of CISF Rules with the payment of one month salary. Hence, no interference is warranted, and the petition deserves to be dismissed.

Learned counsel for the petitioner submits that as there are two sets of judgment with conflicting views as cataloged in the judgment reported in 2012(8) SCC and matter is referred to larger Bench to enable the Court to apply law uniformly while dealing with such issues, the impugned termination order cannot be justified on the strength of the judgment of Supreme Court in the case of Kendriya Vidyalaya Sangathan, reported in 2003 (3) SCC 487.

Heard.

In the light of the first proviso to Rule-25 of CISF Rules, petitioner continued to be probationer even after completion of two years of probation period in the first instance, in absence of any order of appointing authority of confirmation or declaration of successful completion of probation period. Hence, his services for the reasons stated in sub Rule-(ii) of Rule 25(2) of CISF Rules can be terminated after issuance of notice of one month or after giving one month salary.

At the time of offer of appointment, petitioner was required to fill-up the attestation form and was required to disclose information as solicited in the form, particularly Clause-12. Admittedly, petitioner has suppressed the information as regards criminal case registered against him for offences punishable under Sections 323, 324/34 of IPC, for which he was detained and tried. It is also clear from the aforesaid fact that in the event for suppression of factual information in the attestation form, services of an incumbent would be liable to be terminated if the same comes to the notice of the government authority at any time during process of service. Hence, termination of employment of the petitioner for the said reasons cannot be found fault with as verification of the character and antecedents is one of the important criteria to test whether selected candidate is suitable to the post in the disciplined Para Military Force on the post of Constable or not ?.

With the antecedents of the nature referred to above, the decision of the appointing authority that petitioner''s continuance in the service is not desirable cannot be said to be unwarranted as suppression of such material information had clear bearing on the character and antecedents of the petitioner in the matter of continuing in service, as such persons cannot claim any right for continuity in service.

Though in the Jaynendra cases (supra) the issues have been referred to larger Bench but the aforesaid propositions are not whittled down and employer still has right to deal with such persons like petitioner in accordance with Rules in a given set of facts, in the opinion of this Court, the respondents were fully justified having terminated the employment of the petitioner, a probationer for the reasons stated in the termination order dated 18.10.2010 Annexure P/1) and confirmed in the appellate order dated 02/09/2011 (Annexure P/2). Petition sans merit, is hereby dismissed.