Hitender Singh vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 1492 Del

JUDGMENT

S.N. Aggarwal, J.

1. The petitioner joined the service as Sub-Inspector (GD) with Seema Suraksha Bal on 06.02.2003 at Arariya in Bihar. After he completed his basic training (Platoon Commander Training), he was posted for duties as SI (GD) on the Border Outpost. Within two months of his joining the service, his appointment was cancelled and was terminated from service w.e.f. 02.04.2003. The petitioner in this writ petition has called in question his termination from service and has prayed for a writ of mandamus against the respondents directing them to reinstate him in service with all consequential benefits of seniority and pay and allowances etc.

2. The factual matrix of the case giving rise to this writ petition is as follows:

The petitioner had joined the service in Seema Suraksha Bal as Sub-Inspector (GD) on 06.02.2003. His services were terminated w.e.f. 02.04.2003 without assigning any reason vide communication dated 02.04.2003 issued by the Assistant Director (EB), Directorate General, Special Service Bureau, R.K. Puram, New Delhi. The said communication is Annexure-7 to the writ petition. Prior to termination of the petitioner from service, he was served with a memorandum calling upon him to explain his involvement in a criminal case vide FIR No. 80/2002 dated 30.05.2002 under Sections 498A/494/34 IPC registered against him and his other family members with Police Station Barser, Himachal Pradesh. The petitioner immediately gave a reply to the said memorandum on 18.03.2003 stating that he was falsely involved in the aforementioned case by his Bhabhi on account of her matrimonial discard with her husband. The petitioner further stated in his explanation dated 18.03.2003 that he was not aware about the pendency of the criminal case on the date he filled up his Attestation Form on 23.05.2002 and according to him he came to know about the said case in the last week of June, 2002, information of which was given by him to the respondents immediately on 08.09.2002 vide document Annexure-3 to the writ petition. The grievance of the petitioner in this writ petition is that his termination from service is arbitrary and illegal and also contrary to the terms and conditions mentioned in his appointment letter (Annexure-4). In view of these facts, the petitioner has prayed for quashing of the impugned termination order and for directions to the respondents to reinstate him in service with all consequential benefits.

3. In response to notice of this writ petition, the respondents have filed their counter affidavit in which they have justified the termination of the petitioner on the ground that he had concealed the material information while furnishing the Attestation Form at the time of his interview on 11.06.2002 regarding his involvement in a criminal case registered against him vide FIR No. 80/2002 under Sections 498A/494/34 IPC with Police Station Barser, Himachal Pradesh. The respondents have relied upon Warning No. 2 mentioned on the top of the Attestation Form according to which the services of the petitioner were liable to be terminated in the event of his failure to inform the respondents about his detention, arrest, prosecution etc. subsequent to furnishing of the Attestation Form. The respondents have contended that the present writ petition is without any merit and they have prayed for its dismissal.

4. We have heard learned Counsel for the parties and have also perused the entire record including the original file shown to us at the time of hearing of this writ petition.

5. The only short question that needs our consideration in this writ petition is whether the petitioner had intentionally suppressed the pendency of a criminal case against him on the date he had furnished the Attestation Form to the respondents in relation to his appointment with them and if so whether his removal from service by the respondents is justified.

6. The petitioner applied for the post of Sub-Inspector (GD) in Seema Suraksha Bal pursuant to an advertisement published in the Employment News during August, 2001. He had appeared for the competitive exam and was declared qualified. He had stood 21st rank in the national merit list for the aforementioned post. He was called for interview with direction to report at 25th SSB Bn. Ghitorni, New Delhi on 11.06.2002 vide letter dated 09.05.2002 and was provisionally selected for the post of SI (GD). The petitioner was asked to fill up the Attestation Form/SSQ forms etc. which were required to be submitted by him at the time of interview on 11.06.2002 duly completed and attested as per instructions. The petitioner had submitted all the forms duly completed at 25th SSB Bn, Ghitorni at the time of his interview on 11.06.2002. The FIR No. 80/2002 dated 30.05.2002 under Sections 498A/494/34 IPC was registered against him at Police Station Barser, Distt. Hamirpur, Himachal Pradesh in which he had got anticipatory bail on 02.07.2002 from the High Court of Himachal Pradesh. The Attestation Form is purported to had been filled up by the petitioner on 23.05.2002. The petitioner has stated that he was not aware about the registration of the said FIR against him and his other family members till the date he had appeared for his interview on 11.06.2002. According to him, he came to know about the said criminal case for the first time only in the last week of June, 2002 and he thereafter promptly informed the respondents about the same vide his letter dated 08.09.2002, copy whereof is Annexure-3 to the writ petition. Pursuant to his interview held on 11.06.2002, the petitioner was selected and offered the appointment for the post of Sup-Inspector (GD) in Seema Suraksha Bal vide letter of the respondents dated 20.01.2003. The petitioner joined the service with the respondents w.e.f. 06.02.2003 and just after about two months his appointment was cancelled and consequent thereto he was terminated from service w.e.f 02.04.2003. The services of the petitioner were terminated under Rule 5 of the CCS (Temporary Service) Rules presumably because according to the respondents he failed to furnish the information about the registration of a criminal case against him after submission of Attestation Form vide FIR No. 80/2002 dated 30.05.2002 under Sections 498A/494/34 IPC with Police Station Barser, Himachal Pradesh.

7. Learned Counsel appearing for the respondents has referred to and relied upon instruction No. 2 contained on the Attestation Form (Annexure-4 to the counter affidavit) and relying upon the same, she had contended that since the petitioner failed to furnish the information about the registration of criminal case against him after furnishing of Attestation Form, this render him liable for termination of his service without assigning any reason. Appearing for the respondents, Ms. Dhir had also argued that the criminal case against the petitioner was registered on 30.05.2002 whereas he had furnished the Attestation Form to the concerned authorities of the respondents at the time of his interview on 11.06.2002 and therefore according to her the petitioner was aware about the said criminal case against him on the date of his interview which fact he deliberately suppressed while furnishing the Attestation Form. Ms. Dhir also relied upon two judgments, one of Supreme Court in Delhi Administration v. Sushil Kumar and second judgment of a Division Bench of this Court in Yogesh Kumar Singh v. Union of India and Ors. (WP(C) No. 11460/2004 decided on 19.10.2006) in support of her contention that in case a candidate seeking Government employment furnishes false information or suppresses any material information while filling up the Attestation Form, his services are liable to be terminated notwithstanding the gravity of the offence he was accused of or his acquittal in the criminal case. We have gone through both these judgments relied upon by counsel for the respondents. In our opinion, none of these judgments is applicable to the facts of the present case. In Sushil Kumar's case (Supra), respondent Sushil Kumar was selected for the post of Constable in Police service subject to verification of his character and antecedents. On verification it was found that the respondent in that case was involved in a criminal case under Sections 304/324/34 IPC, though he was acquitted in the said case. In view of the said verification report, the respondent in that case was denied appointment to the post of Constable as the appointing authority was of the view that his appointment in Delhi Police was undesirable. In such circumstances the Apex Court held denial of appointment to the respondent Sushil Kumar not improper on the ground of desirability. In that case, the dispute before the Supreme Court was not regarding furnishing of false information or suppression of involvement in a criminal case while filling up the Attestation Form. The appointment in that case was denied because of past conduct and antecedents of the selected candidate that came to the notice of the appointing authority during verification of the antecedents.

8. In Yogesh Kumar Singh's case (Supra), the petitioner was selected for the post of Constable (GD) in the Central Reserve Police Force. He joined the service with CRPF on 15.03.2003. Prior to his appointment, he had filled up the Attestation Form in which he had concealed the factual information about his involvement in a criminal case inspite of clear warning that suppression of factual information would render the candidate unfit for employment in the Force. It was not disputed in the abovementioned case that the petitioner did not disclose about his involvement in the criminal case while filling up the Attestation Form prior to his appointment in CRPF. The defense of the petitioner in that case was that he was involved in a criminal case in November, 1996 when he was hardly 14 years old and the case pertained to a quarrel between his neighbour over a disputed piece of land. This Court while upholding the termination of the petitioner had held that the acquittal by the Court of competent jurisdiction would not wipe out the criminal charge that was framed against the selected candidate or would ipso facto, diminish or take away the consequences of incorrect declaration made by him in the Form despite a clear warning. This view was based on a finding of fact that though the petitioner (selected candidate) was 14 years old at the time of alleged commission of the offence but on the date he filled up the Attestation Form he was fully grown up and was aware of the proceedings initiated against him.

9. The law on the subject is well settled that if a selected candidate furnishes false information or suppresses material information regarding his involvement in a criminal case on the date of filling up of the Attestation Form then it would entail his termination from service notwithstanding his acquittal in the criminal case at a later point of time. We are conscious of this legal proposition while dealing with the facts of the present case. In the case before us, the plea of the petitioner is that he was not aware about the registration of a criminal case against him till the date he appeared for his interview on 11.06.2002 and for that reason, he could not be accused of giving false information regarding the said criminal case on the date he had submitted the Attestation Form at 25th SSB Bn. Ghitorni, New Delhi. His further plea is that he came to know about the registration of criminal case against him under Sections 498A/494/34 IPC only in the last week of June, 2002. He had sent intimation about the said case to the respondents on 08.09.2002 i.e. much before his appointment. At this stage, it would be pertinent to mention that the respondents have disputed the receipt of letter dated 08.09.2002 from the petitioner. We do not consider it necessary to go into this disputed aspect of the matter because the petitioner had made a reference of this letter dated 08.09.2002 in his reply dated 18.03.2003 to the memorandum received from the respondents. The respondents did not dispute the receipt of letter dated 08.09.2002 at that time. The dispute in this regard was raised by them for the first time in their counter affidavit filed in response to notice of this writ petition. The reply dated 18.03.2003 was admittedly given by the petitioner before his appointment was cancelled vide impugned communication dated 02.04.2003. The FIR against the petitioner and his other family members was got registered on 30.05.2002 in Himachal Pradesh, miles away from Delhi. The Attestation Form is purported to had been filled up and got attested on 23.05.2002 i.e. prior to registration of the aforementioned criminal case. Though the Attestation Form was furnished by the petitioner at the time of his interview on 11.06.2002, it is difficult to ram down the throat that he was aware about the registration of criminal case against him till that time. One cannot believe that the accused would come to know about registration of the criminal case against him immediately on registration of FIR particularly when FIR was registered at a place miles away from his place of residence. Hence the only inescapable conclusion would be that the petitioner cannot be accused of giving false information or suppressing information regarding registration of a criminal case against him on the date he had furnished the Attestation Form to the concerned authorities of the respondents at the time of his interview on 11.06.2002. In the peculiar facts and circumstances of the case, we are further of the view that the petitioner also cannot be accused of not complying with instruction No. 2 contained on the Attestation Form inasmuch as he had admittedly informed the concerned authorities about the aforementioned criminal case against him, if not on 08.09.2002 as alleged by him, at least on 18.03.2003 i.e. before the date of his termination from service. This aspect appears to have been ignored by the respondents while terminating the services of the petitioner vide impugned communication dated 02.04.2003.

10. Even otherwise we have noticed that the impugned termination of the petitioner is not in accordance with the terms and conditions contained in his appointment letter (Annexure-4). As per terms of his appointment, the services of the petitioner could be terminated during probation at any time by a month's notice or without notice by making payment of one month's salary in lieu of notice period. The relevant terms of the appointment letter is reproduced here- in-below:

The appointment is purely temporary. The appointment may be terminated at any time by a month's notice given by either side, viz. the appointing authority or the appointee without assigning any reason. The appointing authority, however, reserves the right of termination the services of the appointee forthwith or without notice by making payment to him of a sum equivalent to the pay and allowances for the period of notice of the un-expired portion thereof.

11. The communication dated 02.04.2003 by which the appointment of the petitioner was cancelled and was terminated from service is reproduced here-in- below:

Dated, the 2-4-03

MEMORANDUM

Subject:- Regarding selection for the post of SI (GD) in SSB Battalion

This has reference to your selection in SSB for the post of SI/GD.

2 Your Attestation form for verification of Character and antecedents was sent to the concerned Supdt. of Police for verification who intimated that there is a police case registered against you in Police Station Barseer under FIR No. 82/2002 dated 30.05.2002, Uder Sections 498A/494/34 IPC which is still under trial in the Hon'ble Court.

Keeping in view of above fact, your candidature for the appointment as SI/GD in SSB is hereby cancelled. ASSISTANT DIRECtor (EB)

12. A perusal of the above would clearly show that the petitioner was terminated from service without serving him with mandatory one month's notice or paying him pay and allowances for one month in lieu of notice period. On account of this violation as well, the impugned termination of the petitioner cannot stand the test of judicial scrutiny. Thus looking from any angle we are of the considered view that the impugned termination of the petitioner from service was not justified and is liable to be set aside in the present proceedings.

13. In the result this writ petition succeeds and is allowed. The impugned termination of the petitioner from service vide communication dated 02.04.2003 is hereby set aside. The respondents are directed to reinstate the petitioner in service forthwith. However, the petitioner has filed an affidavit before us stating that he will not claim back-wages for the period between the date of his termination and till the date of his reinstatement. We accordingly direct that reinstatement of the petitioner in service of the respondents shall be with all consequential benefits except back-wages for the period intervening between the date of his termination and the date of his reinstatement. The parties are left to bear their own costs.