Calcutta High Court (Appellete Side)
Jai Karan vs Union Of India & Ors on 11 December, 2023
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Raja Basu Chowdhury
WPA 11298 of 2016
With
CAN 1 of 2020
Jai Karan
Versus
Union of India & Ors.
For the petitioner : Ms. Punam Basu
Ms. Pritha Biswas
For the respondents : Mr. Siddhartha Lahiri
Heard on : 11th December, 2023
Judgment on : 11th December, 2023.
Raja Basu Chowdhury, J:
In re: CAN 1 of 2020
1. Ms. Basu, learned advocate representing the petitioner at the very
outset submits that although, the petitioner is aggrieved by a part
of the order dated 3rd June, 2014, to the extent reflected in
paragraph 10 thereof, whereby the Inspector General, despite
reinstating the petitioner had proposed that the intervening period
from the date of termination of his service till the date of
reinstatement be treated as "dies non" for all practical, by
permitting the petitioner to make a representation, the said
challenge is not reflected in the prayer portion of the writ petition.
She, however, submits that a perusal of the writ petition would
clearly identify the aforesaid challenge. She further submits that an
application, being CAN 1 of 2020 has been filed, inter alia, praying
for leave to amend the writ petition in the manner indicated therein.
The same should be allowed.
2. Mr. Lahiri, learned advocate representing the respondents, does not
object to the same.
3. Having regard to the aforesaid and considering the materials on
record, I am of the view that the aforesaid amendment as sought
for, does not alter the nature and character of the present
proceedings as the basis thereof, is already present in the pleadings.
4. In view thereof, leave is granted to the learned advocate-on-record of
the petitioner to correct the prayer (b) of the writ petition by
incorporating the partial challenge to the order dated 3rd June,
2014, as indicated above, at the end of the prayer.
5. The application, being CAN 1 of 2020 is, thus, disposed of.
In re: WPA 11298 of 2016
6. The instant writ petition has been filed, inter alia, challenging the
order dated 18th August, 2014, issued by the Inspector General of
the respondents whereby, the intervening period from the date of
termination of the petitioner till the date of reinstatement in service
was treated as "dies non", in furtherance to the proposal dated 3 rd
June, 2014.
7. Shorn off unnecessary details the facts are that the petitioner was
appointed in the CISF as Constable on 21st April, 2002. After
completion of his basic training he had reported for regular posting
to CISF Unit DSP, Durgapur. According to the petitioner at the time
of his appointment he had submitted an attestation form in which
column12 was left blank. The same related to verification of
character and antecedents of the petitioner.
8. Upon the aforesaid form being sent for verification, a report was
submitted by the District Magistrate Jhajjar, Haryana on 1st May,
2003 mentioning therein that a criminal case was registered against
the petitioner under Section 323, 324 and Section 34 of the Indian
Penal Code at Sadar Bahadurgarh Police Station (FIR No. 303 dated
29th August, 2001). The petitioner was, however, acquitted by the
learned First Class Judicial Magistrate, Bahadurgarh Court on 23rd
March, 2002.
9. At the material point of time when the petitioner was under
probation his service was terminated by the DIG, CISF Unit, DSP,
Durgapur on 12th June, 2003 by paying a month's salary in lieu of
one month's notice, on account of suppression of fact before the
department. The petitioner was not afforded any opportunity of
hearing, nor any documents were supplied to the petitioner based
on which the decision to terminate the petitioner had been taken.
10. Records reveal, immediately upon his termination, the petitioner
had made a representation on 24th June, 2003. His representation,
however, was disposed of by an order dated 27th August, 2003
issued by the IG Headquarters thereby, confirming the order of
termination. According to the petitioner, the aforesaid order dated
27th August 2003 is a non-speaking order.
11. In the circumstances as aforesaid and being aggrieved with his
termination which he claims to be wrongful, he had filed a writ
petition before this Hon'ble Court which was registered as WP
No.5594(W) of 2005. On contested hearing by an order dated 20th
August, 2009 a Coordinate Bench of this Hon'ble Court had
directed the authority to reconsider the petitioner's candidature on
the basis that if such information was available at the initial stage
what they would have done according to the prevalent rules and
practice. It was also provided in the aforesaid order that the
respondents are expected to apply non-discriminatory standard in
taking a decision in the matter.
12. Although, an intra-Court appeal was filed by the respondents, by
an order dated 20th February, 2014, the Division Bench of this
Hon'ble Court had directed the respondents herein who were the
appellants to the said case to proceed with the matter in accordance
with law by observing as under:-
"We dilute the observations made by the single bench
to the extend of Joy Alexander's case whether such
treatment can be meted out to the petitioner or not is at
the discretion of the authorities concerned. As order had
not been quashed by the single bench, we are not
inclined to interfere with the order passed by the
appellants. The appellants are at liberty to proceed with
the matter in accordance with law taking into
consideration the suppression of material fact by the
petitioner and, thereafter considering the various
decisions of the Hon'ble Apex Court take a decision in
accordance with law".
13. Records reveal that pursuant to the aforesaid direction issued by
the Division Bench of this Hon'ble Court by an order dated 3rd
June, 2014 the Inspector General being the respondent no.3 was,
inter alia, pleased to set aside the order of termination dated 12 th
June, 2003 issued by the DIG, CISF Unit, DSP, Durgapur, with a
further direction to reinstate the petitioner in service. However, by
the said order he proposed to treat the intervening period i.e. the
period from the date of termination of his service till the date of
reinstatement as "dies non".
14. Although, the petitioner claims to have made a representation in
time and the same was forwarded through the commandant, the
same was not processed by the commandant in time. The petitioner
had subsequently made another representation. However, according
to the petitioner, the respondents ignoring such representation had
passed the order dated 18th August, 2014 thereby, confirming the
proposal at paragraph 10 of the order dated 3rd June, 2014 to treat
the period from the date of termination till the date of reinstatement
as "dies non".
15. According to the petitioner, subsequently, however, the
respondents had passed a fresh order on 3rd June, 2015 taking into
consideration the petitioner's representation and having found that
the petitioner had failed to identify the mitigating points in its
representation that would warrant any further consideration, the
prayer for regularization of the petitioner for the intervening period
as duty, instead of "dies non", being not acceptable was rejected on
the principle of "no work no pay".
16. The petitioner has not only challenged the proposal dated 3rd
June, 2014 which proposed that the intervening period between the
date of termination from service and the date of reinstatement be
treated as "dies non" as is reflected in paragraph 10 of the said
order but also the order dated 18th August, 2014 whereby, the said
proposal was affirmed as also the subsequent rejection of the
petitioner's representation vide order dated 3rd June, 2015.
17. Ms. Basu, learned advocate representing the petitioner, submits
that once, the respondents decided to reinstate the petitioner taking
into consideration the factum of suppression and non-disclosure of
the information in column 12 of the attestation form as a minor
aberration as inclusion of the fact was not likely to cause
disadvantage to the petitioner in joining any government service, by
setting aside the order of dismissal, the intervening period between
his dismissal and reinstatement ought not to have been treated as
"dies non". In any event, the ground on which the respondents had
purported to reject the petitioner's representation cannot be
sustained especially since, the petitioner had no role to play, in not
performing his duty at the relevant point of time. The petitioner
had, in fact, being denied the opportunity of work and as such the
decision to treat the aforesaid period as "dies non" for all practical
purposes appears to be not only harsh but excessively oppressive.
She submits that the aforesaid direction should be set aside and
the respondents should be directed to make payment of all benefits
including arrear salary and back wages to the petitioner, by treating
the intervening period as on duty.
18. Ms. Basu, by placing reliance on an unreported judgment
delivered by a Coordinate Bench of this Hon'ble Court in the case of
Sri Sukdeb Mandal v. Union of India delivered on 6th September,
2022 in WPA 28149 of 2015, submits that similarly circumstanced
persons have been given not only the benefits of continuous service
but salary and all other benefits from the date of termination till the
date of reinstatement. She also places reliance on another judgment
delivered by the Hon'ble Supreme Court in the case of Joginder
Singh v. Union of India & Ors., delivered on 9th January, 2015 in
Special Leave to Appeal (C) Nos. 6975-6976 of 2014.
19. Per contra, Mr. Lahiri, learned advocate representing the
respondents, submits that it is an admitted position that the
petitioner was terminated on 12th June, 2003 and did not work with
the respondents until 18th June, 2014. The petitioner cannot be
permitted to unjustly enrich himself at the cost of the State
exchequer. The petitioner having not worked cannot be entitled to
any benefit for the aforesaid period. It is still further submitted that
the petitioner's case was duly considered by the respondents by an
order dated 3rd June, 2015 and the respondents having found that
the petitioner had not worked for the aforesaid period, his claim was
denied on the principle of "no work no pay".
20. As regards the judgments cited by Ms. Basu, Mr. Lahiri submits
that a judgment is an authority for what it decides. The aforesaid
judgments have been passed in the respective facts of the cases, the
aforesaid judgments are distinguishable on facts and do not assist
the petitioner.
21. Heard the learned advocates appearing for the respective parties
and considered the materials on record. Admittedly, it is noted that
the petitioner was successfully selected to the post of a Constable
and had joined the CISF as a Constable on 21st April, 2002. He was
on probation when it was detected that he had suppressed a
criminal case by not declaring the same in column 12 of the
attestation form. Such fact came to light when on verification of the
attestation form, the District Magistrate Jhajjar, Haryana in his
report dated 1st May, 2003 communicated that a criminal case was
registered against the petitioner under Section 323/324/34 of the
Indian Penal Code against FIR No. 303 dated 29th August, 2001.
Although, the petitioner was acquitted from such proceedings, the
respondents by treating that the petitioner having suppressed
material facts as regards his criminal proceedings, had terminated
the petitioner from service by giving the petitioner one month's
notice pay. Despite, the petitioner making a representation and
praying for reinstatement, his representation dated 24 th June, 2002
was not considered. On the contrary, the Assistant Inspector
General by letter dated 18th December, 2002 informed the petitioner
that his representation had been rejected as being devoid of merit.
22. The petitioner, being aggrieved had moved this Hon'ble Court by
filing a writ petition being WP No. 5594 (W) of 2005 when by an
order dated 20th August, 2009 a Coordinate Bench of this Hon'ble
Court was, inter alia, pleased to direct the respondents to
reconsider the petitioner's case. Although, an appeal was preferred
from the said order, the Hon'ble Division Bench of this Court by an
order dated 20th February, 2014 was, inter alia, pleased to direct
the respondents to proceed with the matter by taking into
consideration the suppression of fact by the petitioner on the basis
of the diverse decisions of the Hon'ble Supreme Court and to take a
decision thereon in accordance with law.
23. Records reveal that the Inspector General of the respondents had
since, by an order dated 3rd June, 2014 was pleased to reinstate the
petitioner in service by setting aside the order of termination dated
12th June, 2003. However, by the selfsame order it was proposed
that the period between the date of termination of service of the
petitioner till the date of reinstatement be treated as "dies non" for
all practical purposes by observing as under:-
"8 Apart from above, non-declaration of the fact in
Column No.12 of Attestation Form appears to be a minor
aberration as inclusion of the fact was not likely to
cause disadvantage to the petitioner, in joining any
government service. Further, depriving a young man of
a legitimate government job merely on such a filmsy
ground would be a serious set back to him. Thus,
keeping in view the facts enumerated above and
considering his young age, long service career before
him and wishing that he would prove himself a suitable
and disciplined member of the force in future, I feel the
petitioner should be given a chance to correct himself by
setting aside the order of termination passed by the
DIG, CISF Unit DSP Durgapur vide order No.(5889)
dated 12.06.2003 in the instant case and reinstating
him in service.
9.Therefore, in terms of Rule 2691)(ii) of CISF Rules
2001, the order of termination dated 12.06.2003 issued
by the DIG, CISF Unit DSP Durgapur against the
petitioner is set aside and the petitioner is re-insteated
in service with direction to report at CISF Unit DSP
Durgapur within 15 days from the date of receipt of this
order, failing which it will be presumed that he is no
more interested to serve this organization and this order
shall automatically stand cancelled.
10. Further, it is proposed to treat the intervening
period i.e. from the date of termination of his service till
the date of his re-insteatement as "dies non" for all
purposes. In case he wishes to make a representation
in this regard he may do so in writing within 15 days
from the date of receipt of the same. If he fails to submit
the same within the stipulated period of 15 days it will
be presumed that he has nothing to represent and order
will be passed as per rules".
24. It appears that although, the petitioner claims to have made a
representation in terms of the opportunity afforded to him in the
order dated 3rd June, 2014, the respondents had proceeded to
decide the said issue on 18th August, 2014 by treating no
representation had been made by the petitioner, thereby confirming
its proposal as made out in paragraph 10 of the order dated 3rd
June, 2014, to treat the intervening period between the date of
termination and the date of reinstatement as "dies non".
Subsequently, however, the respondents had proceeded to consider
the petitioner's case as would appear from the order dated 3rd June,
2015 and having found the petitioner's prayer for regularization of
the intervening period "as on duty" instead of "dies non"
unacceptable, had rejected the same on the principle of "no work no
pay". Being aggrieved, the present writ petition has been filed.
25. In this case, it is noted that the respondents themselves in the
order dated 3rd June, 2014 had found that the criminal proceedings
that was registered against the petitioner does not come under the
category of serious offence/moral turpitude. It was further noted by
the Inspector General, in his aforesaid order that the petitioner was
acquitted by the learned Judicial Magistrate, 1st Class,
Bahadurgarh Court on 20th March, 2002 as the criminal case was
settled amicably on compromise. It has been further recorded that
non-declaration of the fact in column 12 appears to be a minor
aberration as inclusion of the fact was not likely to cause
disadvantage to the petitioner in joining any government service.
26. Having regard to the aforesaid, it is apparent and clear that the
initial decision of the respondents to terminate the petitioner was
bad. No opportunity of hearing at any stage was given to the
petitioner. The respondents having realized the same had set
aside the said order dated 3rd June, 2014, however, at the same
time it was proposed by the Inspector General that the intervening
period from the date of termination from service till the date of
reinstatement of the petitioner, to be treated as "dies non" for all
practical purposes. The aforesaid proposal was confirmed by order
dated 18th August, 2014.
27. Although, Ms. Basu, learned advocate representing the petitioner
has argued by drawing attention of this Court to the affidavit in
opposition, that there is no denial of the factum of the petitioner
forwarding his representation to the aforesaid proposal through, the
Commandant, however, in the absence of the records being
produced, I am unable to determine the same.
28. Be that as it may, records reveal that the respondents have,
however, by an order dated 3rd June, 2015 reconsidered the
petitioner's representation and had come to a finding that the
petitioner's prayer for regularization of the intervening period as "on
duty" cannot be accepted on the principle of no work no pay. It
must be noted here that when the petitioner was terminated from
service no opportunity of hearing was given to him. At that stage the
respondents did not consider the fact that non-disclosure of the
information, in column 12 of the attestation form is a minor
aberration, as inclusion of such fact was not likely to cause
disadvantage to the petitioner in joining any government service.
Although, a representation was made, the aforesaid order or of
rejection was not reconsidered. It is only when the respondents
realized the mistake that the order dated 12th June, 2002 was set
aside but in the interregnum more than a decade had passed. To
activate the respondents in reconsidering their decision, the
petitioner had to approach this Hon'ble Court. Even after the order
dated 20th August, 2009, the respondents did not reconsider the
case. It was only after the Division Bench of this Hon'ble Court by
its order dated 20th February, 2014 refused to set aside the
direction for reconsideration, that the case was reconsidered and
the order of reinstatement dated 3rd June, 2014 was passed. The
petitioner certainly could not be made responsible for the delay in
reconsideration of his case.
29. Having regard to the aforesaid, I am of the view that directing the
aforesaid intervening period from the date of termination till the
date of reinstatement to be treated as "dies non" is harsh,
unreasonable and oppressive. However, the fact that the petitioner
did not work cannot be lost sight of.
30. Having regard to the aforesaid I am of the view that justice would
be subserved if the petitioner is treated to be in continuous service
for the entire intervening period i.e. from the date of termination till
the date of reinstatement and is paid all notional benefits therefor,
including 50 per cent of his back wages.
31. In view thereof, the orders dated 18th August, 2014 and 3rd June,
2015 are set aside. The respondents are directed to accordingly
correct the petitioner's service records and disburse the back wages
as directed, within 6 weeks from the date of communication of this
judgment and order on the basis of the observations made herein
above.
32. With the above observations and directions the writ petition is
disposed of.
33. There shall, however, be no order as to costs.
34. Urgent photostat certified copy of this order, if applied for, be
given to the parties upon compliance of necessary formalities.
(Raja Basu Chowdhury, J.)
sb.
