Bombay High Court
Dnyaneshwar Madhavrao Kure vs Union Of India And Others on 6 May, 2016
Bench: S.S. Shinde
1 WP No.9862/2015
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9862 OF 2015
Dnyaneshwar s/o Madhavrao Kure,
Age: 25 years, Occ - Nil,
R/o. Khujada, Tq. Mudkhed
Dist. Nanded. .. Petitioner
VERSUS
1. Union of India,
Through Ministry of Railways
Rail Bhawan,
New Delhi.
2. The Director General
Railway Protection Security Force
Rail Bhawan,
New Delhi.
3. Inspector General (Admn)
Rail Bhawan,
New Delhi.
4. Additional Chief Security Commissioners
North-East Frontier Railway
Malegaon, Dist. Dhule (M.S.)
5. Senior Commanding Officer-
No.6 Battalion
Railway Protection Security Force
Dayabasti, New Delhi. .. Respondents
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2 WP No.9862/2015
Mr.S.V.Kurundkar, Advocate for Petitioner;
Mr. M.N. Navandar and Mr.S.B.Deshpande, Advocates for
Respondent Nos. 1 to 5.
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CORAM : S.S.SHINDE &
P.R.BORA,JJ.
DATE OF RESERVING JUDGMENT : 10
th
February, 2016
DATE OF PRONOUNCING JUDGMENT:06
th
May ,2016.
1)
JUDGMENT (PER:-P.R.BORA,J.)
Heard. Rule. Rule made returnable
forthwith by consent of parties.
2) The petitioner has filed the present
petition seeking quashment of order dated 19th
June, 2015, whereby the Additional Chief Security
Commissioner, North-East Frontier Railway,
Maligaon ( Respondent No.5) has discharged the
petitioner from the service of the Railway
Protection Security Force (for short, RPSF).
3) As stated in the petition, the
petitioner was selected as Constable in the
selection process carried out in the year 2013-
2014. In the month of June-2013, the petitioner
had appeared for written examination and on
succeeding in the written examination the
petitioner was called for physical examination in
March 2014. He was found physically fit and his
interview was, therefore, conducted in June 2014.
He got through the interview also and was finally
selected for the post of Constable. The
appointment order was issued in his favour by
Respondent No.5 on 5.10.2014 and he was directed
to report to SSB Constable Training Centre,
Sonitpur in Assam State w.e.f. 1.11.2014. Since
the said date till 19th June, 2015, i.e. till date
of his discharge, the petitioner served with the
respondent as Trainee Constable.
4) The petitioner came to be discharged
from the services of RPSF on the ground that he
suppressed the material fact and submitted false
information in the attestation form that he was
never detained / prosecuted or punished in any
criminal case. According to the respondents, the
petitioner has, thus, violated the provisions
contained in Para 3 of the Attestation Form,
rendering him unfit for the Government service.
The discharge order reveals that in view of the
provision contained in Para 3 of the Attestation
Form and under Rule 55.2 and 67.2 of the Railway
Protection Force Rules, 1987, the petitioner was
discharged from the services of RPSF.
5) As is revealing from the material on
record, the petitioner was prosecuted in the
court of Judicial Magistrate First Class,Mudkhed
for the offences punishable under Sections 353,
332 and 504 of Indian Penal Code, vide SCC No.
136/2014. It was alleged that on 28.11.2013, the
petitioner voluntarily caused hurt to the
Conductor of ST bus to deter him from his duty.
It was also alleged that he assaulted the
conductor of the said bus to deter him from
discharging his duty. However, the petitioner
was acquitted of the offences so charged against
him; vide Judgment and Order passed by the
Judicial Magistrate First Class, Mudkhed on
21.8.2014 in the aforesaid Summary Criminal Case.
6) According to the terms of appointment
for Constable Recruit in RPSF, the candidature of
the petitioner for enlistment in the provisional
selection list was subject to satisfactory police
verification. The terms provide that in case of
adverse report, the services of the petitioner
were liable to be terminated with immediate
effect. As per the said terms the petitioner was
required to submit an attestation form along with
his affidavit at the time of joining initial
training. In the said affidavit, for which there
was a prescribed format, the candidate swearing
such affidavit was required to clarify whether he
was ever been arrested and/or prosecuted; kept
under detention or fined or convicted by any
court of law for any offence or debarred or
disqualified by any Railway Recruitment Board or
any Recruitment Board/Commission of the
Government of India or any of the State of India.
It was further required that the deponent shall
also clarify whether any criminal case is pending
against him in any court of law.
7) It is not in dispute that the petitioner
had also sworn the affidavit in the aforesaid
proforma, wherein he had not disclosed the fact
of his prosecution for the offences under
Sections 332 and 353 of Indian Penal Code in the
court of Judicial Magistrate First Class, Mudkhed
in SCC No.136/2014. The material on record
further reveals that the matter was referred for
verification of the character and antecedents of
the petitioner to the Superintendent of Police,
Nanded. The Superintendent of Police, Nanded,
vide communication dated 26th May, 2015, informed
the Senior Commandant, Headquarters 6 Battalion,
Railway Protection Force, Delhi that the
petitioner was involved in an offence and
criminal case under Section 353, 332 and 504 of
Indian Penal Code was registered against him at
Police Station, Mudkhed. It was also informed by
the Superintendent of Police, Nanded that the
petitioner has been acquitted of the offences for
which he was prosecuted in the Court of Judicial
Magistrate First Class, Mudkhed.
8) Respondent No.5, however, holding that
the petitioner did not disclose the true facts
and suppressed the material fact of his
prosecution, discharged him from the services of
RPSF.
9) Shri Kurundkar, learned Counsel
appearing for the petitioner, submitted that
before discharging the petitioner from the
services of RPSF, the Respondent did not give him
any opportunity to put-forth his case and thus,
according to him the discharge-cum-termination
order, was in utter violation of principles of
natural justice and hence cannot be sustained.
The learned Counsel further argued that the
petitioner did provide a plausible explanation
for not disclosing the fact of his prosecution
while filling in the Attestation Form and
swearing the affidavit, stating that he did not
understand the terms and conditions incorporated
in the order of appointment as well as the
contents of the prescribed proforma of the
affidavit, which was in English language, and as
such, he erred in furnishing the necessary
particulars. The leaned Counsel urged that the
petitioner was never intending to suppress the
said fact since he was not convicted in the
aforesaid criminal case. The learned Counsel
further submitted that the petitioner has proved
his merit by succeeding in the written
examination; physical test and oral interview and
merely because he failed in providing information
about his prosecution in the proforma affidavit,
he cannot be punished by discharging from the
services. The learned Counsel relied upon the
judgment of the Hon'ble Apex Court in the case of
Commissioner of Police and Ors. Vs. Sandeep
Krishna - 2011 (4) SCC 644, to support his
argument that lenient view ought to have been
taken by the respondents/authorities. The
learned Counsel, therefore, prayed for quashing
and setting aside the aforesaid communication and
consequently for direction to the respondents to
reinstate the petitioner on the post of Constable
with all consequential benefits.
10) Shri Navandar, the learned Counsel
appearing for the respondents, resisted the
contentions raised on behalf of the petitioner.
The learned Counsel, relying upon the judgment of
Hon'ble Apex Court in the case of Union of India
and Ors. Vs. Bipad Bhanjan Gayen reported in 2008
(8) Scale 483, submitted that the misconduct
alleged against the petitioner was of incorrect
filing of the Attestation form and not being
involvement in criminal case and as such, the
mere fact that the petitioner has been acquitted
would not have any effect on the merits of the
controversy. The learned Counsel further
submitted that an employment in the Railway
Protection Force as a police constable
presupposes a higher level of integrity, because
such a person is expected to uphold the law and
if it is found that at a very initial stage
somebody has tried to suppress the material fact,
alike the petitioner, he cannot be continued in
the services of RPSF. The learned Counsel,
therefore, prayed for dismissal of the petition.
11)
We have carefully considered the
submissions advanced on behalf of learned Counsel
appearing for the parties. In the affidavit,
sworn in and submitted by the petitioner, in
terms of the appointment order at the time of
proceeding for training, the petitioner has
admittedly not disclosed the fact that he was
prosecuted for offence punishable under Sections
353, 332 and 504 of Indian Penal Code in SCC No.
136/2014 in the court of Judicial Magistrate
First Class, Mudkhed. On the contrary, the
petitioner has submitted an affidavit, contending
therein that he was never arrested and/or
prosecuted by any court of law for any offence.
There is further no dispute that the petitioner
was acquitted in the aforesaid criminal case on
21.8.2014, i.e. prior to swearing of affidavit,
as aforesaid, by him. Vide order dated
5.10.2014, issued by Respondent no.4, the
petitioner was provisionally selected as a
Constable in RPSF on the basis of his overall
merit position. Vide order dated 5.10.2014, the
petitioner was directed to report at SSB
Constable Training Centre at Sonitpur in Assam on
1.11.2014. He was further informed that on
successful completion of the training and subject
to fulfillment of other conditions, he will be
appointed by the competent authority as Constable
in RPSF. The petitioner was further required,
vide said communication to submit an affidavit in
prescribed proforma, duly executed on non-
judicial stamp paper of at least Rs.10/-.
12) On 5.10.2014, admittedly, no criminal
case was pending against the petitioner and the
criminal case which was filed against him, had
ended in acquittal. The question arises,
"whether non-disclosure of the fact that he was
prosecuted for certain offences under Indian
Penal Code , in spite of his acquittal therefrom,
shall be held to be suppression of fact or
providing false information and shall result into
his discharge from the services of RPSF ?"
13)
There cannot be a dispute that
employment as police officer pre-supposes a
higher level of integrity, because such a person
is expected to uphold the law. It also cannot be
disputed that the purpose of seeking the
information whether any criminal case is pending
against a candidate concerned or whether at any
point of time, he was arrested or prosecuted in
any offence, is to judge the character and
antecedents of the said candidate for his
continuation in service.
14) In the present case, the petitioner
admittedly did not disclose the fact of his
prosecution for the offences referred above. The
question is, had the present petitioner
disclosed the fact of his prosecution for the
offences referred above and also about his
acquittal in the said criminal case, whether the
competent authority would have discharged him
from the services on the ground that he might
have been acquitted in the said criminal case,
but the fact remains that there was criminal
prosecution against him. The answer emphatically
is "No". In such a case, the competent authority
has to look into the nature of allegations
against the candidate concerned and further has
to see whether on what grounds ultimately he was
acquitted. The competent authority has to form
its opinion about the integrity and overall
character of the incumbent on the basis of
material before it and to take decision whether
to continue him in services or otherwise. It is
thus evident that even if any such information is
timely provided, then also the competent
authority has to objectively form its opinion as
stated herein above.
15) In the instant case, such objective
assessment does not seem to have been made by the
Competent Authority before discharging the
petitioner from the services. In the
circumstances, we deem it appropriate to quash
and set aside the order dated 19th June, 2015 and
remit back the matter to Respondent No.4 with a
direction that Respondent No.4 shall objectively
assess the suitability of the petitioner for
continuation of the petitioner in the services on
the basis of verification report received from
the Superintendent of Police, Nanded and more
particularly having concern to the acquittal
recorded in favour of the petitioner in the
criminal case against him and take the
appropriate decision as expeditiously as
possible.
16) The petition thus stands partly allowed
in the aforesaid terms with no order as to costs.
Rule is made absolute in the aforesaid terms.
(P.R.BORA) (S.S.SHINDE)
JUDGE JUDGE
bdv/
fldr 11.4.16
