Lata Verma vs State Of U.P.& 3 Ors.
2017 Latest Caselaw 7695 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 26
 

 
Case :- WRIT - A No. - 37362 of 2013
 

 
Petitioner :- Lata Verma
 
Respondent :- State Of U.P.& 3 Ors.
 
Counsel for Petitioner :- Jaswant Singh, Anil Tiwari
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. This writ petition has been filed by the petitioner challenging the orders dated 18.06.2007 issued by the Deputy Inspector General, PAC, Agra and the order dated 14.12.2007 issued by the Inspector General of Police, PAC Western Zone, Moradabad and the order dated 10.06.2008 passed by the Additional Director General of Police, PAC; with a further prayer for issuance of mandamus to the respondents to reinstate the petitioner with full consequential benefits.

2. The case of the petitioner as pleaded by her counsel is that the petitioner was initially appointed as a Constable Ministerial [Constable (M)] on 22.11.1996 under the provisions of U.P. Government Servant Dying-in-Harness Rules, 1974 and sent for training and later on promoted as Assistant Sub Inspector (M) in the year 1998. At the time of passing of the impugned order she was posted at District Etawah.

3. It so happened that one Avanish Kumar was suspended by the Senior Superintendent of Police, Gautam Budh Nagar on the charge that he had obtained his appointment in police service by forging the records under Dying-in-Harness Rules. Avanish Kumar filed Writ Petition No. 11505 of 2006 challenging his suspension and in the aforesaid writ petition, this Court passed several orders directing the Police Authorities to conduct an enquiry into several such cases reported of persons obtaining appointment under Dying-in-Harness Rules in the police service on forged documents, where the parents of such alleged dependents were either not in police service at all or had superannuated after such service, and had not died in harness, or were still alive and yet their dependents had claimed them to be dead and sought compassionate appointment. This Court passed several orders, one of which was to the effect that certain cases had already been detected, although the number of such fraudulent appointments may be much more and enquiry into individual cases may take time, even several years, therefore, the Police Authorities were directed to require all compassionate appointees to furnish the details regarding the name of father/mother/employee said to have died in harness, and the post on which he was functioning and other identification details as may be necessary, date of death of the employee along with documentary evidence with respect to working and expiring during such working, and copies of all certificates to be attested by the employee himself with regard to his qualifications as well as other entitlements, and a statement also to the effect that no other dependent person had been offered appointment on compassionate grounds. Such affidavits/written information given by each and every such compassionate appointees was to be verified and then alone salary of such an employee was to be released by the Drawing and Disbursing Officer after verification that no fraud was noticed.

4. In terms of the order dated 21.04.2006 passed in Writ Petition No. 11505 of 2006 affidavits were asked for from each of such employees, who had been given compassionate appointment and some fraudulent appointments were identified and even First Information Reports were lodged against them by Special Task Force constituted by the State Government for the said purpose.

5. It has been argued by the learned counsel for the petitioner that in the FIR so lodged by the Special Task Force, the name of the petitioner was not included and she was never informed of any Preliminary Inquiry held by the Department in her case. It has been argued that nevertheless Preliminary Inquiry Report was submitted on 28.02.2006 by Circle Officer, Lohamandi, Agra, which recorded that the petitioner's appointment was not forged. Another Preliminary Inquiry was held and other Inquiry Report was submitted on 19.04.2006 alleging that petitioner has fraudulently obtained compassionate appointment.

6. In view of the contrary reports, the Additional Superintendent of Police was asked to consider both the reports and submit his finding. On 11.10.2006, the Additional Superintendent of Police agreed with the earlier report dated 28.02.2006. Despite such agreement of Additional Superintendent of Police with the report dated 28.02.2006, which was in her favour, the Police Authorities lodged an FIR against the petitioner on 29.10.2006 alleging that the petitioner had resorted to fraud and her father was never employed in the Police Force.

7. A show cause notice dated 13.03.2007 was later on received by the petitioner, but the petitioner could not reply to the same, as such show cause notice did not contain sufficient details by the authorities. It has been alleged that despite repeated applications dated 05.04.2007 and 06.06.2007 necessary documents were not supplied and an ex-parte order dated 18.06.2007 was passed dismissing the petitioner from service without holding any Departmental proceedings.

8. It has been argued that the petitioner thereafter preferred a statutory Appeal, which was rejected on 14.12.2007 and her Revision was also rejected by the Additional Director General of Police, PAC on 10.06.2008.

9. It has been argued by the learned counsel for the petitioner that the allegation on the basis of which the impugned order had been issued, amounted to an act of misconduct and the petitioner ought to have been proceeded against in Departmental proceedings under Rule 14 of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeals) Rules, 1991. However, no regular departmental proceedings were held and the petitioner was dismissed under the provisions of Rule 8 (2) (b) of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeals) Rules, 1991.

10. It has been also argued on the basis of enquiry report dated 28.02.2006 that in such enquiry, the petitioner's contention that her father was an employee of the Police Department was found to be correct and that she had rightly obtained appointment under Dying-in-Harness Rules. The order of dismissal from service was passed without framing or serving any charge sheet and without conducting any regular disciplinary proceedings.

11. It has been also argued that Avnish Kumar, the petitioner in Writ A No. 11505 of 2006 was also dismissed in a similar fashion and was reinstated after this Court allowed Writ A No. 35583 of 2008 on 14.11.2013 and the Special Appeal No. 508 of 2015 filed by the State of U.P. against such judgment and order dated 14.11.2013, was dismissed by this Court on 28.7.2015.

12. Learned counsel for the petitioner has also pointed out from several judgments passed in similar matters some of which have been annexed along with rejoinder affidavit, that this Court had interfered in almost all cases and has allowed the writ petitions and directed reinstatement with all consequential benefits. In one case an SLP was filed by the State of U.P., which was also rejected.

13. Reference has been made to judgment and order dated 16.07.2012 passed in Writ A No. 46352 of 2004 (Hira Singh vs State of U.P.) and judgment and order dated 14.11.2013 passed in Writ A No. 16148 of 2010 (Ashok Kumar vs State of U.P. and others) besides the judgment rendered in the case of Avnish Kumar (supra) as aforesaid.

14. Ms. Archana Tyagi, learned Standing Counsel appearing for the State-respondents, on the other hand, has argued on the basis of impugned orders dated 18.06.2007, 14.12.2007 and 10.08.2008 that this was not a case of dismissal from service and was not covered under the Discipline and Appeals Rules of 1991 and the order terminating the services of the petitioner was not passed in exercise of powers either under Rule 14 of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeals) Rules, 1991 or under Rule 8 (2) (b) of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeals) Rules, 1991. From a perusal of the orders impugned, it is evident that such orders were passed cancelling the initial appointment of the petitioner dated 08.11.1996 on the basis of affidavit/declaration given by the petitioner at the time of entering into service that whatever information was being given in the application form for appointment as dependent of the deceased employee was correct and true and no false averments had been made therein. It has been contended that in view of the Declaration Form which gave the Authority to the Department to cancel appointment in case of any finding with regard to wrong information being supplied by the candidate, the power had to cancel the appointment of the petitioner had been rightly exercised by the Department.

15. Learned Standing Counsel read out all the relevant paragraphs of the counter affidavit and also the impugned orders to show that initially when the petitioner applied for service, she had applied under the Dependent of Deceased Government Servant Dying-in-Harness Rules, 1974 saying that her father Head Constable No. 112 Civil Police, Dhanpal Singh had died in harness on 05.10.1980. On inquiry, it was found that no such employee worked as Head Constable (Civil Police) in Agra. The Head Constable, Santosh Kumar in his report dated 25.10.2006 had reported that there was no such person as Dhanpal Singh Head Constable No. 112 Civil Police, and from the Register maintained for issuance of uniform to all employees from the Uniform Store, it has been found that Head Constable No. 112 as per Police Records was one Mahaveer Singh, who was posted w.e.f. 28.12.1978 to 30.12.1980 in the Police Department at Agra. In the report submitted by the Circle Officer, Agra to the Senior Superintendent of Police, Agra, it was found that the Pension Clerk had also reported that no pension file was opened for alleged Head Constable No. 112, Civil Police, Dhanpal Singh, at any point of time. The Circle Officer, Agra had reported that the ''Hindi Order Book' had been misplaced for the year 1980 and Application Form submitted by the candidate at the time of her appointment, on 25.11.1996 in District Mainpuri, had also been weeded out as per the report submitted by the Clerical Staff working in the said district.

16. It has been argued by learned Standing Counsel that since this was not a case where misconduct during the service was to be enquired into, but the case of forgery and fraudulent appointment before entering into the service, no Regular Disciplinary Proceedings could not have been held under Rule 14 of the Discipline and Appeal Rules. The proceedings for cancellation of appointment as per the Declaration Form of the candidate concerned can be undertaken after issuance of show cause notice only to the candidate/employee concerned.

17. In this case as per paragraph 4 of the counter affidavit, no documentary evidence could be found with regard to working of alleged Head Constable No. 112 Civil Police, Dhanpal Singh and after the report was submitted by Circle Officer, Head Quarters, district Agra to the Senior Superintendent of Police, Agra, a show cause notice was issued by the office of the Deputy Inspector General of Police dated 30.03.2007 giving the petitioner's details that were found in the enquiry, and asking her to show cause as to why her appointment should not be cancelled.

18. The petitioner had received such notice on 23.03.2007, instead of replying to the same, she asked for some time. Another notice was issued to the petitioner on 10.04.2007, which was received by her on 13.04.2007. The petitioner again sent an application requesting for papers in support of the allegation in the show cause notice. Time was granted to the petitioner again by the letter dated 13.04.2007 along with the direction that all evidence which the petitioner wished to be supplied to her should be perused by her in the office. The petitioner received such letter dated 13.04.2007 on 18.04.2007, but again submitted an application on 19.04.2007 asking for copies of documents. Again, the office of the District Inspector General of Police, Agra sent a letter dated 31.05.2007, received by the petitioner on 03.06.2007, giving seven days' further time to submit reply. The petitioner did not submit any reply and consequently the Authorities arrived at the rightful conclusion that the petitioner was only buying time and was not interested in making any reply, and therefore, she had nothing to say in the matter and the order dated 18.06.2007 was passed cancelling her appointment Order No. 18-64(313)95 dated 08.11.1996.

19. Aggrieved by the order dated 18.06.2007, the petitioner filed appeal, which was rejected on 14.12.2007 by the Appellate Authority finding therein that the petitioner was granted ample opportunity by repeated notices and the petitioner failed to reply to the same and that the matter related to cancellation of appointment and was not related to dismissal from service, and therefore, not covered under the Discipline and Appeals Rules, 1991. Her Revision was also rejected on 16.07.2008 by the Revisional Authority finding no illegality or infirmity in the procedure adopted for cancelling the appointment of the petitioner.

20. It has been submitted by the learned Standing Counsel that Hon'ble Supreme Court has held in several cases where an employee has obtained appointment on the basis of forged certificates and fraudulent information that only show cause notice is necessary and not Regular Disciplinary Proceedings to terminate the services of such an employee as such termination of services is in fact a cancellation of appointment and not a dismissal or removal from service.

21. Learned Standing Counsel has relied upon the several judgments viz, State Bank of India and another vs Luther Kondhpan, 1999 (9) SCC 268; R. Vishwanath Pillai vs State of Kerala, 2004 (2) SCC 105; Vice Chairman, Kendriya Vidhyalaya Sangathan and another vs Girdhari Lal Yadav, 2004 (6) SCC 325; Regional Manager, Central Bank of India vs Madhulika Guruprasad Dahir and others 2008 (13) SCC 170; and the latest judgment of Hon'ble Supreme Court in the case of Avtar Singh vs Union of India and others reported in 2016 (8) SCC 471.

22. I have considered the rival submissions made on behalf of the learned counsel for the petitioner as well as the State-respondents. The petitioner has not filed the second Enquiry Report dated 28.10.2006 in the writ petition, but has only filed Enquiry Report dated 28.02.2006 submitted by the Circle Officer, Lohamandi, Agra. Second Enquiry Report dated 28.10.2006 has been filed along with counter affidavit by the State-respondents.

23. From a perusal of the Enquiry Report dated 28.02.2006 filed by the petitioner alleging that the said Enquiry Report in her favour, the Inquiry Officer has recorded the statement of the petitioner as follows:

ßesjs firk Lo0 Jh /kuiky flag tuin vkxjk esa gs0 dk0 ds in ij rSukr FksA ftudk chekjh ds dkj.k o"kZ 1980 esa LoZxokl gks x;k gSA ftuds LFkku ij esjk HkrhZ izLrko iqfyl eq[;ky; vkxjk ds Hkstdj fnuk¡d 23-11-1996 dks eSuiqjh esa HkrhZ fd;k x;k gSA mijksDr HkrhZ gsrq esjh ek¡ Jherh jktJh }kjk izk0 i= izsf"kr fd;k x;k FkkA ftudk nsgkUr gks pqdk gSA ml le; esjs ifjokj eas esjh ek¡ vkSj esjs vfrfjDr NksVk HkkbZ FkkA eSusa gkbZ Ldwy ls ch0 ,0 rd dh f'k{kk tljkuk fQjkstkckn ls dh gSA ftlls lEefcU/kr izek.k i= esjs lsokfHkys[k esa pLik gSaA gkbZ Ldwy dh vad rkfydk ,oa lun dh Nk;kizfr;k¡ lqyHk lanHkZ gsrq layXu dj jgh g¡wAÞ

24. The Superintendent of Police, Firozabad had been requested to get an enquiry conducted from the village of the petitioner and it had been reported by the Gram Pradhan to Station House Officer, Ram Sunder Singh of Police Station, Eka, Firozabad that Smt. Lata Verma was the daughter of Head Constable Dhanpal Singh, who died sometime during service almost 25 years ago, and the petitioner Lata Verma had been given compassionate appointment on his death.

25. In the Enquiry Officer's report dated 28.02.2006, it has clearly come out that the petitioner herself had reported that her father Late Dhanpal Singh was Head Constable No.112 in Civil Police Agra and he died in 1980 as a result of illness and she was born in 1973 and her brother was younger to her, and therefore her mother had applied for compassionate appointment for Lata Verma to the District Police, Agra, which application was sent to U.P. Police Head Quarters, Allahabad, and thereafter, the petitioner was selected as Constable (M) in 1996 and given her appointment in District Mainpuri.

26. This Enquiry Report dated 28.02.2006 merely states on the basis of statement made by the petitioner herself that her father was working as Head Constable No. 112, Civil Police, and that his name was Dhanpal Singh and he died in sometime in 1980 and on the basis of statement of village Pradhan that the petitioner's father was indeed in the Police Department and died sometime 25 years ago it has been presumed that it is improbable that the petitioner had submitted the wrong information.

27. In the Enquiry Report submitted by the Circle Officer, Head Quarter, Agra dated 28.10.2006, however, it has been found after due enquiry that there was no such employee as Head Constable No. 112, Civil Police Dhanpal Singh working in Agra at that time, as it was found on enquiry from the Uniform Store ledger that one Mahaveer Singh was working as Head Constable No. 112, Civil Police in district Agra w.e.f. 28.12.1970 to 30.1.1980. It was also found on enquiry from the Pension Clerk that no pension file had been opened with respect to Dhanpal Singh, who is said to have died on 05.10.1980.

28. It has been found from both the Enquiry Report dated 28.02.2006 and 28.10.2006 that the petitioner had indeed submitted that her father late Dhanpal Singh was working as Head Constable No. 112 Civil Police at Agra, and had died during service on 05.10.1980, and that her mother had submitted an application for compassionate appointment for Lata Verma as her brother was younger to her and still ineligible.

29. However, in the rejoinder affidavit that has been submitted by the petitioner sworn by her husband Lokendra Pal Singh, who is also ASI (M) working in the Police Department it has been alleged that no enquiry was ever held and the petitioner had never given any statement to the respondents that she had been appointed under Dying-in-Harness Rules on the death of her father Late Dhanpal Singh, Head Constable No. 112 Civil Police.

30. It is indeed surprising that the petitioner in the rejoinder affidavit has resorted to a complete denial as to the nature of her appointment and has resiled from the statements made in the writ petition in its various paragraphs and also in the statement recorded in the preliminary enquiry report dated 28.02.2006, that petitioner had been given compassionate appointment in 1996 due to death of her father late Dhanpal Singh, Head Constable in 1980.

31. With regard to judgments cited by the petitioner of similarly situated persons, whose services had been terminated by the Police Department and whose writ petitions were allowed, this Court has carefully perused the judgment and order dated 16.07.2012 passed in Writ A No. 46352 of 2004 (Hira Singh vs State of U.P.), wherein the services of petitioner Hira Singh had been terminated in exercise of powers under Rule 8(2)(b) of the Punishment and Appeals Rules, 1991, and this Court held that power under Rule 8(2)(b) of the 1991 Rules could not be exercised to dispense with the Regular Departmental Enquiry unless it was recorded by the Disciplinary Authority/Appointing Authority that no Regular Enquiry was possible to be held in accordance with the procedure prescribed under the Rules.

32. The case of Avnish Kumar in Writ A No. 35583 of 2008, was allowed on 14.11.2013 by this Court finding that no Regular Disciplinary Proceedings were held at all nor the writ petitioner therein was ever associated with any enquiry. In the Preliminary Enquiry, a report had been submitted that on account of non-availability of documents, it was not possible to return any finding on the charge. This Court had found that cancelling the appointment of the petitioner without undertaking disciplinary proceedings was in violation of principle of natural justice.

33. In the judgment and order dated 14.11.2013 in Writ A No. 16148 of 2010 in the case of Constable Ashok Kumar also the Court found that in the absence of any documentary evidence and in the absence of Regular Departmental Inquiry, the services of the petitioner could not be terminated. Moreso, when no material was found to demonstrate that petitioner had obtained appointment on forged and fabricated documents under Dying-in-Harness Rules.

34. The larger Bench of the Hon'ble Supreme Court in Avtar Singh (supra) has considered all earlier binding precedents and has come to the conclusion as given in paragraph No. 38, which is being quoted here-in-below:

" We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize our conclusion thus:

(1) Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.

(2) While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information. The employer shall take into consideration the Government orders/instructions/ rules, applicable to the employee, at the time of taking the decision.

(3) In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted : -

In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.

(4) Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee. If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.

(5) In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.

(6) In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case.

(7) In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.

(8) If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.

(9) In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.

(10) For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.

(11) Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him. " (emphasis supplied).

35. Moreover, the Hon'ble Supreme Court in paragraph 33 has observed thus:

The fraud and misrepresentation vitiates a transaction and in case employment has been obtained on the basis of forged documents, as observed in M. Bhaskaran's case (supra), it has also been observed in the reference order that if an appointment was procured fraudulently, the incumbent may be terminated without holding any inquiry, however we add a rider that in case employee is confirmed, holding a civil post and has protection of Article 311(2), due inquiry has to be held before terminating the services. The case of obtaining appointment on the basis of forged documents has the effect on very eligibility of incumbent for the job in question, however, verification of antecedents is different aspect as to his fitness otherwise for the post in question. The fraudulently obtained appointment orders are voidable at the option of employer, however, question has to be determined in the light of the discussion made in this order on impact of suppression or submission of false information.

36. The larger Bench of the Hon'ble Supreme Court has found that in such cases where fraudulent information is submitted or appointment is obtained on the basis of forged documents and the employee is confirmed in the meantime, Regular Disciplinary Proceedings should be held. The petitioner no doubt is a confirmed employee and has worked for more than 10 years before her appointment was cancelled.

37. In the case of the petitioner, it is apparent that the Police Department has collected some information behind the back of the petitioner to the effect that her father Late Dhanpal Singh was never working as Head Constable in the Police Department at Agra, and that the petitioner had indeed applied for compassionate appointment under Dying-in-Harness Rules and was given such appointment on request of her mother. Two facts are clear from the records, firstly that the petitioner had alleged that she was dependent of late Dhanpal Singh, Head Constable No. 112 Civil Police and secondly that Late Dhanpal Singh had died in harness in 1980 and her mother had applied to the Police Department to give the petitioner Lata Verma a job as compassionate appointee. Later on, on inquiry it was found that the petitioner had submitted incorrect information.

38. The orders impugned cannot be sustained in view of the law now settled by the Larger Bench of the Supreme Court in the case of Avtar Singh (supra) and they are set aside with a further direction that Regular Disciplinary Proceedings be held under Rule 14 of the Discipline and Appeals Rules, 1991, and the petitioner be afforded reasonable opportunity of hearing and appropriate orders may be passed thereafter by the Appointing Authority.

39. Since, this Court has set aside the impugned order only on the ground of violation of principle of natural justice in view of the law settled by the Supreme Court in the case of Managing Director Ecil Hyderabad vs B. Karunakar Etc. reported in 1994 SCC (Supplementary) (2) 391, the consequential benefits if any shall be determined only after final orders are passed in Regular Disciplinary Proceedings. The petitioner shall be reinstated and be treated as suspended for the purpose of Regular Disciplinary Proceedings by the Appointing Authority, which shall be initiated and completed expeditious, say within a period of six months from the date a certified copy of this order is made available to him.

40. The writ petition is allowed to this extent.

Order Date :- 06.12.2017

Sazia