Shri Prem Chand Chhillar vs Administrator, Union Territory ...
2004 Latest Caselaw 422 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Petitioner, on coming to know that respondent No.2 was wanting to fill up some posts of Gateman submitted an application offering himself to be appointed for one post. This was somewhere in the year 1979.

2. Without following any procedure for effecting appointment as by then the necessary recruitment rules for the post of Gateman were yet to be framed and without even advertising for the post much less inviting applications from the employment exchange, respondent effected appointment, appointing various persons as Gatemen and Security Guards. Petitioner was one such person appointed as a Gatemen on temporary basis vide order dated 22.8.1979.

3. While issuing the appointment order to the petitioner, following was communicated:-

"Sh. Prem Chand S/O. Sh. Chander Singh is appointed as G.M. In the pay scale of Rs. 196-282 plus usual allowances as admissible to the employees of A.P.M.C. Azadur on purely temporary and adhoc basis with effect from 22.8.1979 for a period of 89 days or till regular arrangement is made which ever is earlier.

2. The appointment of Sh. Prem Chand is on purely temporary and adhoc basis and/he will not be given any benefit for the purpose of seniority, or claim for regular appointment to this or any other equivalent post. His services can be terminated at any time without notice.

3. He will furnish the following document along with his joining report:

1. Matric/Higher Secondary Certificate (Original)

2. Educational Certificate

3. Medical Certificate of fitness from M.B.B.S.Doctor.

4. Character Certificate issued from the Educational Institution last attended or from a Gazetted Officer of State or Centre."

4. Though appointed for a period of 89 days, appointment continued. On 28.4.1980 an order was issued continuing the appointment of the petitioner as Gateman till 19.7.1980 or till regular arrangements were made, whichever is earlier. In the office order dated 28.4.1980 following was communicated:-

"1. That the appointment is on purely temporary and adhoc basis and can be terminated at any time without any notice.

2. That he/she, will not be given any benefit for the purpose of seniority, or claim for regular appointment to this or any other equivalent post and

3. That in case he/she agrees to the conditions of appointment/he/she should report to this office within 7 days from the date of issue of this letter Along with the following documents:-

1. Matric/Higher Sec. Certificate (Original)

2. Educational Certificate (Original)

3. Medical Certificate of fitness from M.B.B.S.Doctor.

4. Character Certificate."

5. Thereafter under various orders appointment of the order continued pending regular appointments being made. Thus petitioner continued to serve on purely temporary and ad-hoc basis.

6. In the year 1982 a complaint was received by the respondent that the petitioner was involved in a criminal case in which petitioner was prosecuted for having committed an offence under Section 302, 148, 149, 325 and 323 IPC. Petitioner's explanation was called for. On 17.6.1982 petitioner, by way of an affidavit gave his explanation, explaining that on 4.6.1972 a quarrel had taken place between two parties. It was a land dispute. Petitioner was one of the co-accused. Trial Court had convicted him under Sections 302/149 IPC, 148 IPC, 325/149 IPC and under Sections 323/148 IPC. However, on appeal being filed, being Criminal Appeal No. 102/1976 conviction was sustained only under Section 323 and under Section 148 IPC. Petitioner informed that pursuant to his conviction by the High Court a sentence for 6 months for each of the offences was imposed upon him. Petitioner stated that conviction under Section 323/148 IPC does not involve a moral turpitude and does not effect his right or eligibility for serving the respondent.

7. Explanation of the petitioner did not find favor with the authorities. On 28.2.1983 following order was passed:-

OFFICE OF THE AGRICULTURAL PRODUCE MARKET COMMITTEE AZADPUR, D-4, PANCHWATI, AZADPUR: DELHI-33.

F.12(147)/79-APR/PF/3848. Dated:28.2.83

O R D E R

WHEREAS Shri Prem Chand Chhillar S/o. Sh. Chander Singh, R/o. Nizampur, Delhi was employed as Gate-man in the pay scale of Rs. 196-232 under this Committee on Ad-hoc basis.

AND WHEREAS Sh. Prem Chand was convicted under Section 148 I.P.C. for which he was sentenced to rigorous imprisonment for 6 months & that this fact was concealed by Sh. Prem Chand Chhillar at the time of his initial appointment under this Committee.

Now, therefore, Administrator, A.P.M.C. Is pleased to terminate the services of Sh. Prem Chand Chhillar with immediate effect.

This has been approval by the Chairman, D.A.M.S., Delhi.

BY ORDER

Sd/- M.C. MEHTA

SECRETARY."

8. Petitioner challenges the said order.

9. Shri G.D. Gupta, learned counsel for the petitioner while drawing attention of this court to Regulation 14 (6) of the Delhi Agricultural Market Committee (Service) Regulations, 1978 contended that disqualification for being appointed under the respondent was conviction of an offence involving moral turpitude. By placing reliance on the judgment of the Rajasthan high Court reported as 2000 (7) SLR 131 Dr. Naresh Aggarwal & Ors. Vs. State of Rajasthan and Ors., counsel contended that conviction under Section 323/147 IPC would not amount to conviction of an offence involving moral turpitude. Such a conviction does not debar a person from holding civil post.

10. Placing reliance on the judgment of the Supreme Court reported as Pawan Kumar Vs. State of Haryana & Anr. counsel contended that moral turpitude, is used in law as also common parlance to describe conduct which is inherently base, vile, deprave or having any connection showing depravity. Counsel contended that offence under Section 323/148 IPC of which the petitioner stood convicted ultimately did not involve any moral turpitude and, therefore, the impugned order dated 28.2.1983 was liable to be set aside. Counsel contended that as per order dated 22.8.1979 under which petitioner was first employed and even vide order dated 28.4.1980, petitioner was required to furnish a character certificate from the educational institute last attended or a gazetted officer. Petitioner was not to disclose about his involvement in a criminal case. It was never asked of the petitioner to state whether he was involved in a criminal case. So the question of concealment does not arise.

11. Ms. Avinash Ahlawat learned counsel appearing for the respondent would urge to the contrary. She contended that petitioner was appointed purely on a temporary basis pending regular selection to the post. Petitioner was, therefore not entitle to stake a claim at par with regular employees. Counsel contended that appointment effected in favor of the petitioner was not only temporary and ad-hoc but it was made clear that the same can be terminated at any time without any notice. Counsel further contended that while effecting appointment it was made clear to the petitioner that service rendered by him would not confer any benefit for purposes of seniority or claim for regular appointment. Counsel lastly contended that issue had to be looked at in light of the decision of the Supreme Court reported as Delhi Administrator Vs. Sushil Kumar. Counsel contended that decision of the Supreme Court in Sushil Kumar's case would show that what is relevant is the antecedents of a person and if the same are not found to be desirable, decision of the Government not to permanently employ such a person could not be faulted with.

12. Service record pertaining to the petitioner was produced for perusal of the court. Same has been perused.

13. Impugned order dated 28.2.1983 would reveal that basis of passing the said order against the petitioner is not the fact of his being convicted but the fact that he did not disclose the same at the time of his initial appointment under the committee. The charge is one of concealment.

14. Every person who seeks employment is obliged to disclose all the information, truthfully, which he is required to disclose by the employer. Record would reveal that the respondent had not prescribed any form or format under which the applicant seeking desirous of job under it had to apply. Everything was done unofficiously by the department. By word of mouth, petitioner learnt of a job under the respondent. He walked into the office of the respondent and handed over a hand written letter seeking employment. While handing over the letter which was petitioner's application seeking employment, petitioner furnished the necessary information which could have enabled the respondent to decide on petitioner's suitability for appointment. There was no requirement for the petitioner to disclose his past and none was disclosed.

15. Thereafter when appointment order was issued in favor of the petitioner on 22.8.1979, respondent required the petitioner to submit, along with his joining report the four documents listed therein. The said documents were petitioner's Matric/Higher Secondary Certificate. Educational certificate/Medical Certificate of Fitness from MBBS Doctor and Character Certificate issued from the Educational Institution last attended or from a Gazetted Officer of State or Centre.

16. Record produced by the respondent would reveal that the petitioner submitted the necessary documents which included the Character Certificate issued to him by a Gazetted Officer.

17. Requirement of the respondent was that the petitioner would submit, amongst others, a Character Certificate. Respondent, even at the stage of appointment did not require the petitioner to submit any certificate to the effect that the petitioner was not involved in any criminal proceedings. The charge against the petitioner that he concealed any fact as laid in the impugned order dated 28.2.1983 must fail. To that extent, submission of Sh. G.D. Gupta, learned Senior Counsel appearing for the petitioner must succeed.

18. But would that mean that the impugned order dated 28.2.1983 must be quashed and petitioner should be directed to be put back in service with consequential benefits.

19. Petitioner joined on 22.8.1979 and worked uptil 28.2.1983 when the impugned order was passed. Petitioner has, therefore, worked for 3 years and 6 months. Appointment of the petitioner was on ad-hoc/temporary basis pending regular appointments. At the time when the impugned order was passed it could not be said that right of the petitioner to be regularized had crystalized. It is true that subsequently (as stated by counsel for the respondent during arguments) in the year 1987 similarly situated employees were regularized but considering the fact that when the impugned order was passed on 28.2.1983, petitioner's rights were still incohate coupled with the fact that petitioner had worked only for 3 years and 6 months, in my opinion, while deciding the petition in the year 2004, it would be unfair and unjust to direct the respondent to reinstate the petitioner Even if back wages have to be denied, reinstatement would entail financial burden on the respondent for payment of pensionery benefits to the petitioner.

20. Whatever be the gravement of the offence committed by the petitioner, surely, his antecedents are not clean. It is true that ultimately petitioner was acquitted of having committed the offence under Section 302 IPC but decision of this court in the criminal appeal filed by the petitioner and other co-accused would show that the petitioner along with his relations had assaulted the deceased and other persons who were injured at the house of Ram Singh. Ram Singh died, others were injured. On the technical principle of criminal law, this court came to the conclusion that Section 149 IPC was not attracted and in that view of the matter held each of the individual members liable for their individual acts and this resulted in the acquittal of the petitioner for having committed the offence under Section 302 IPC r/w Section 149 IPC. Petitioner was held guilty for the individual acts committed by him resulting in his conviction being sustained under Section 323 IPC and Section 148 IPC being maintained. Though, the offence of which petitioner stood convicted technically may not involve any moral turpitude but surely, the acts committed by the petitioner along with others do not reflect a character where it can be said that a decision to discontinue the petitioner's service is wholly unjust or is completely unwarranted. Howsoever weak they may be, petitioner's antecedents have a taint. Where a permanent employee is being removed from service on ground of his conviction, whether the offence involves moral turpitude or not is relevant since a vested right is being taken away. However, different considerations apply when initial appointment is being given or an ad-hoc employee is removed. Here, no vested right is being taken away. Principles of Delhi Administration Vs. Sushil Kumar applies.

21. Totality of the circumstances and in particular that the petitioner was employed without any selection process being followed, without any advertisement being issued and without applications being called from the Employment Exchange and the fact that the employment was purely temporary and ad-hoc, I am not inclined to grant any relief to the petitioner.

22. Writ petition is dismissed. No costs.