Chattisgarh High Court
Chamru Sai Yadav vs State Of Chhattisgarh on 24 February, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Proceedings through video conferencing
WA No. 233 of 2021
Chamru Sai Yadav S/o. Premsai Yadav, Aged About 60 Years R/o
Village and Post Machadoli, Lalpur, P.O. Bango, Tahsil Katghora,
District Korba Chhattisgarh, District : Korba, Chhattisgarh
---- Appellant
Versus
1. State Of Chhattisgarh Through The Secretary Department Of Water
Resources, Mahanadi Bhawan, Atal Nagar, Nava Raipur, District Raipur
Chhattisgarh, District : Raipur, Chhattisgarh
2. Chief Engineer, Minimata (Hasdeo Project) Water Resources
Department, Bilaspur Chhattisgarh, District : Bilaspur, Chhattisgarh
3. Executive Engineer, Minimata Bango Project, Mandal Division No. 5,
Kharsiya District Raigarh Chhattisgarh, District : Raigarh, Chhattisgarh
4. Executive Engineer, Kelo Project Sarvekshan Division, Raigarh, District
Raigarh Chhattisgarh, District : Raigarh, Chhattisgarh
5. Sub Divisional Officer, Kelo Project Sarvekshan Division, Sub Division
No. 1 Lakha, District Raigarh Chhattisgarh, District : Raigarh,
Chhattisgarh
6. Collector, Raigarh District Raigarh Chhattisgarh, District : Raigarh,
Chhattisgarh
---- Respondents
(Cause-title taken from Case Information System)
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For Appellant : Mr. K.P.S. Gandhi, Adv.
For Respondents : Mrs. Meena Shashtri, Addl. Adv. General.
Reserved on 27-1-2022
Judgment delivered on 24-2-2022
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Hon'ble Mr. Arup Kumar Goswami, Chief Justice
Hon'ble Mr. N.K. Chandravanshi, Judge
CAV JUDGMENT
Per N.K. Chandravanshi, J.
1. This writ appeal has been preferred against the order dated
22-6-2021 passed by the learned Single Judge in WP(S) No. 2726/2021,
whereby the writ petition filed by the appellant/petitioner (hereinafter referred
to as "petitioner") was dismissed.
2. Brief facts of the case are that, the petitioner was initially working
as a daily wager in the department of Water Resources, and was
subsequently regularized in service vide order dated 8-9-2008 (Annexure P-
2). On 15-3-2009, Crime No. 35/2009 for offence punishable under Section
147, 148, 149, 302, 324, 323, 506 of the Indian Penal Code, 1986 (hereinafter
referred to as "IPC") was registered against the petitioner in Police Station
Bango, Distt. Korba. On 19-5-2009, he was arrested by the police for
aforesaid crime. He was in judicial custody from 19-5-2009 to 7-7-2009.
Hence, he was placed under suspension as per sub-rule (1) and (2) of Rule 9
of CG Civil Services (Classification, Control and Appeal) Rules, 1966
(hereinafter referred to as "CCA Rules"). After receiving character verification
report regarding his criminal antecedent from Inspector General of Police
(Intelligence), Raipur, involving moral turpitude, his services were terminated
by the respondents vide order dated 20-4-2010 (Annexure P-1). As per the
documents filed by the petitioner, charge sheet against him for the aforesaid
offences was filed by the police in the Court of Judicial Magistrate First Class,
Katghora, Distt. Korba. Subsequently, the petitioner entered into compromise
with the complainant/ injured and based on that compromise, criminal case
concluded against him and he was acquitted of the charges under Section
148, 324, 323, 323 read with Section 149 and 294 of the IPC, in the Lok
Adalat by the Judicial Magistrate First Class, Korba, vide order dated 14-7-
2018 (Annexure P-5), as per provisions of sub-section (8) of Section 320 of
the Criminal Procedure Code, 1973 (hereinafter referred to as "Cr.P.C.").
Thereafter, on 27-9-2018, the petitioner filed an application before the
respondents stating that since he has been acquitted by the Court of the
aforesaid offences, hence, he may be taken back in service. Since, the
respondents did not take any action on his application, he filed the writ petition
before learned Single Judge. Learned Single Judge, after hearing both the
parties, dismissed the writ petition of the petitioner, observing in para 5, 6 and
8 as under :
"5. This Court is of the opinion that firstly, the writ petition
is highly belated in as much as the challenge to the
termination is after more than a decade. Secondly, the
order of termination is only on the basis of a Police
verification report received by the Department wherein it
was found that the petitioner was having a criminal
background, he has also remained under custody for
about two months and the criminal case was pending on
the date when he was regularized. Thirdly, what can also
not be overlooked is the fact that the order passed in
favour of the petitioner on 14.08.2018 (actual dated is
14-07-2018 i.e. date of compromise) is not after
completion of the entire trial, it's an order where in the
midst of a trial, the petitioner entered into a compromise
with the complainant and thereafter with the leave of the
Court, offences have been compounded. Though it may
have an effect of acquittal in terms of the provision of
Cr.P.C. but what has to be also seem is whether on the
date when the impugned order (Annexure P/1) was
passed, the authorities were justified in passing such an
order or not. Admittedly on the date when (Annexure P/1)
was passed i.e. on 20.04.2010, the petitioner had a
criminal antecedent and he was involved in a criminal case
for the aforesaid offences, he had been in judicial custody
for a period of around two months followed by a Police
verification report received by the department in respect of
the criminal antecedent and the petitioner having a
criminal background.
6. Under the circumstances, the action on the part of the
respondents when the impugned order was passed in the
year 2010 can not be said to be in any manner arbitrary or
malafide. Only because in the year 2018 the matter i.e. the
criminal case got compounded by itself would not give rise
to an occasion for challenging a termination order which
was otherwise passed only on the ground of criminal
antecedent. The said order can not be said to be an order
of termination of service on account of his getting involved
in a criminal case or having remained in judicial custody
for a period of around two months. It is a case where the
order of regularization in service, which was otherwise
subject to verification, on verification of finding the criminal
antecedent, the services have been discontinued and the
same is also purely in accordance with the conditions
stipulated in the order of regularization itself.
7. xxx xxx xxx
8. For all the aforesaid reasons, this Court does not
find any strong case made out by the petitioner calling for
an interference with the impugned order Annexure P/1.
The writ petition therefore sans merits and is accordingly
rejected."
It has been observed by learned Single Judge that the view taken by
him gets fortified from a decision of Hon'ble Supreme Court in State of
Rajasthan Vs. Love Kush Meena [(2021) 8 SCC 774].
3. Learned counsel for the petitioner submits that while joining on
regular post of labourer, the petitioner had not suppressed any fact in his
declaration, as the petitioner joined on the post of labourer on 1-10-2008 and
aforesaid crime was registered against him on 15-3-2009. Thus, since at the
time of joining, there was no crime registered against him, and therefore, there
was no occasion for suppression of fact or submitting false declaration by the
petitioner. Despite that, learned Single Judge has wrongly observed that
"Criminal case was pending on the date when he was regularized." It is further
submitted that the case laws of State of Rajasthan and Ors. (supra) and
Avtar Singh -v- Union of India and ors. [(2016 (8) SCC 471], which have
been relied upon by learned Single Judge, are not applicable in the instant
case, as in those cases, acquittal was based on benefit of doubt, whereas in
the instant case, the petitioner has been acquitted of charges levelled against
him, on the ground of compromise between both the parties. It is further
contended that in the instant case, services of petitioner have been terminated
only on the ground of character verification report. By that time, no order or
judgment was passed in alleged criminal case. Despite that, his services had
been terminated, which is not sustainable at all. It is further submitted that the
petitioner arrived at a compromise with the complainant/ injured and based on
that compromise, he has been acquitted of the charges, as per mandate of
sub-section (8) Section 320 of the Cr.P.C. Thereafter, he filed an application
before the respondents on 27-9-2018, but as they did not take any action on
it, he filed the writ petition before this Court on 3-6-2021. Therefore, the view
taken by learned Single Judge regarding filing of writ petition belatedly, is also
not sustainable. Hence, it is prayed that the writ appeal as well as the writ
petition be allowed and the reliefs, as prayed for, be granted.
4. The respondents have filed their reply-affidavit. Learned State
counsel, while referring to the reply, submits that the order of regularization of
petitioner (Annexure P-2) was conditional, wherein it was specifically
mentioned that services of the petitioner would be subject to character
verification certificate and his services can be terminated after giving one
month notice or one month salary, in lieu of notice. After his joining on regular
post of labourer, his character verification report was called, wherein, it was
disclosed that a criminal case bearing Crime No. 35/2009 for offence
punishable under Section 147, 148, 149, 323, 324, 294, 506(B), 302 of IPC
has been registered against the petitioner and 7 others, and charge sheet has
been filed, which is pending trial. In view of said character verification report,
the petitioner was not found fit for government service, hence, his services
were terminated, as per conditions stipulated in his order of regularization. It is
further submitted that after about more than 11 years of issuance of
termination order (Annexure P-1), the petitioner has challenged the validity of
the said order belatedly, that too, after getting acquittal based on compromise,
which cannot be termed as "honourable/clean acquittal". It is further submitted
that learned Single Judge, considering all above facts, declined to grant relief
to the petitioner, which does not call for any interference of this Court and the
writ appeal is liable to be dismissed.
5. We have heard learned counsel for both the sides and perused
the materials available on record.
6. Perusal of order of regularization dated 8-9-2008 (Annexure P-2)
demonstrates that service of the petitioner was regularized under the
conditions stipulated in Annexure P-2, wherein, amongst other conditions, it
was also a condition that credential / character verification report would be
called and his services can be terminated after giving one month notice or one
month salary, in lieu of the notice. It is also not in dispute that, as per service
book (Annexure R-2) of the petitioner, he joined on 1-10-2008 as a regular
labourer and after his joining, Crime No. 35/2009 for offence punishable under
Section 147, 148, 149, 302, 324, 323, 506 of IPC was registered against him
(and 7 others) in Police Station Bango, Distt. Korba on 15-3-2009. Thus,
alleged crime has been registered against him after his joining on the
aforesaid post. Therefore, the observation made by learned Single Judge that
"criminal case was pending on the date when he was regularized" is not
correct.
7. As per Annexure R-2 and Annexure P-4, the petitioner was in
judicial custody from 19-5-2009 to 7-7-2009, hence on 14-10-2009, he was
placed under suspension under sub-rule (1) and (2) of Rule 9 of CCA Rules.
Thereafter, character verification report of the petitioner was received by the
respondents from Inspector General of Police, (Intelligence), Raipur, CG,
wherein it was disclosed that there is criminal case pending against the
petitioner. Therefore, noting implication of petitioner in offence involving moral
turpitude and criminal antecedent, his services were terminated vide order
dated 20-4-2010 (Annexure P-1), after one month from issuance of the order.
8. In the instant case, services of the petitioner have been
terminated on the basis of negative character verification report. Vide order
dated 14-7-2018, the petitioner has been acquitted from the charges under
Section 148, 324, 323, 323 read with Section 149 and 294 of the IPC, on the
basis of compromise. Meaning thereby, acquittal of the petitioner was not
based on examination of all material witnesses or full trial of the case,
therefore, his acquittal cannot be termed as "honourable/clean acquittal". The
decision of Criminal Court on the basis of compromise or an acquittal on the
basis of compromise cannot be treated that the candidate possesses good
character, which may make him eligible for appointment, as the criminal
proceedings are with the view to find culpability of commission of offence,
whereas the appointment to the civil post is in view of his suitability to the
post. The test for each of them is based upon different parameters and
therefore, acquittal in a criminal case is not a certificate of good conduct to a
candidate. In such a situation, competent authority has a right to take a
decision in respect of the suitability of candidate to discharge the functions of
a government service.
9. In the case of Union Territory, Chandigarh Administration and
others -v- Pradeep Kumar and another [(2018) 1 SCC 797], Hon'ble
Supreme Court has considered the nature and effect of acquittal in a criminal
case with regard to employment. Para 10 of the decision read thus :-
"10. The acquittal in a criminal case is not conclusive of
the suitability of the candidates in the post concerned. If a
person is acquitted or discharged, it cannot always be
inferred that he was falsely involved or he had no criminal
antecedents. Unless it is an honourable acquittal, the
candidate cannot claim the benefit of the case. What is
honourable acquittal, was considered by this Court in
Inspector General of Police v. S. Samuthiram [Inspector
General of Police v. S. Samuthiram, (2013) 1 SCC 598, in
which this Court held as under:
"24. The meaning of the expression
"honourable acquittal" came up for
consideration before this Court in RBI v.
Bhopal Singh Panchal [RBI v. Bhopal Singh
Panchal, (1994) 1 SCC 541. In that case, this
Court has considered the impact of Regulation
46(4) dealing with honourable acquittal by a
criminal court on the disciplinary proceedings.
In that context, this Court held that the mere
acquittal does not entitle an employee to
reinstatement in service, the acquittal, it was
held, has to be honourable. The expressions
"honourable acquittal", "acquitted of blame",
"fully exonerated" are unknown to the Code of
Criminal Procedure or the Penal Code, which
are coined by judicial pronouncements. It is
difficult to define precisely what is meant by the
expression "honourably acquitted". When the
accused is acquitted after full consideration of
prosecution evidence and that the prosecution
had miserably failed to prove the charges
levelled against the accused, it can possibly be
said that the accused was honourably
acquitted."
10. In the case of Jainendra Singh v. State of U.P., [(2012) 8 SCC
748] Hon'ble Supreme Court has held in para 29.2 as under :-
"29.2 Verification of the character and antecedents is one
of the important criteria to test whether the selected
candidate is suitable to the post under the State and on
account of his antecedents the appointing authority if finds
it not desirable to appoint a person to a disciplined force
can it be said to be unwarranted."
11. In the case of Rajasthan Rajya Vidyut Prasaran Nigam Limited
and another -v- Anil Kanwariya [(2021) 10 SCC 136] Hon'ble Supreme
Court considering various decisions with regard to criminal antecedent of an
employee and declaration/ concealment / compromise, has observed in para
8.7 as under :-
"8.7. In Abhijit Singh Pawar [State of M.P. v. Abhijit
Singh Pawar, [(2018) 18 SCC 733], when the employee
participated in the selection process, he tendered an
affidavit disclosing the pending criminal case against him.
The affidavit was filed on 22-12-2012. According to the
disclosure, a case registered in the year 2006 was
pending on the date when the affidavit was tendered.
However, within four days of filing such an affidavit, a
compromise was entered into between the original
complainant and the employee and an application for
compounding the offence was filed under Section 320
CrPC. The employee came to be discharged in view of the
deed of compromise. That thereafter the employee was
selected in the examination and was called for medical
examination. However, around the same time, his
character verification was also undertaken and after due
consideration of the character verification report, his
candidature was rejected. The employee filed a writ
petition before the High Court challenging rejection of his
candidature. The learned Single Judge of the High Court
of Madhya Pradesh allowed the said writ petition. The
judgment and order passed by the learned Single Judge
directing the State to appoint the employee came to be
confirmed by the Division Bench which led to appeal
before this Court. After considering a catena of decisions
on the point including the decision of this Court in Avtar
Singh (supra), this Court upheld the order of the State
rejecting the candidature of the employee by observing
that as held in Avtar Singh (supra), even in cases where
a truthful disclosure about a concluded case was made,
the employer would still have a right to consider
antecedents of the candidate and could not be compelled
to appoint such candidate."
12. In the instant case, as per the conditions stipulated in the order of
regularization Annexure P-2, upon receiving of credentials/character
verification report of the petitioner, he was found involved in criminal case,
hence, respondents did not find him fit for the government service, and
therefore, his services were discontinued. Thus, in para 6 of the impugned
order, learned Single Judge has rightly held that said order Annexure P-1
cannot be said to be an order of termination of service, rather, it is an order/ a
case of discontinuation of service, on the basis of criminal antecedent, which
is purely in accordance with the conditions stipulated in the order of
regularization itself.
13. Alhough, service of the petitioner was discontinued/ terminated
vide Annexure P-1 dated 20-4-2010 on the basis of character verification
report only, but at that time, he did not challenge his termination order. He
challenged his termination order by filing writ petition on 3-6-2021, only after
his acquittal in aforesaid criminal case vide order dated 14-7-2018 passed in
Lok Adalat by the Judicial Magistrate First Class, Katghora. Hence, the view
taken by learned Single Judge that challenge to the termination order is
highly belated, i.e. after more than a decade, cannot be held to be
inappropriate.
14. Since, the petitioner himself has filed the writ petition challenging
his termination order after his acquittal, therefore, now at this stage, his
termination order cannot be seen in isolation of credential/character
verification report. Instead thereof, it would be seen along with alleged
acquittal order which is based on compromise and which cannot be termed as
"honourable / clean acquittal". Despite such acquittal, the employer would still
have a right to consider antecedent of the candidate and the employer cannot
be compelled to appoint or to continue service of such candidate. Therefore,
we do not find that declining of relief by learned Single Judge, as prayed for
by the petitioner, is in any way illegal.
15. In view of aforesaid discussion, we do not find any merit in the
instant writ appeal, warranting interference with the order passed by the
learned Single Judge.
16. Consequently, the writ appeal filed by the appellant/petitioner is
dismissed. No costs.
Sd/- Sd/-
(Arup Kumar Goswami) (N.K. Chandravanshi)
Chief Justice Judge
Pathak/-
