Naveen Kumar vs Union Of India & Ors.
2018 Latest Caselaw 5563 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                         +      W.P.(C) No.2927/2017
     NAVEEN KUMAR                                       ..... Petitioner
                Through                Mr.H.S. Dahiya, Adv.

                             versus

     UNION OF INDIA & ORS                               ..... Respondents
                   Through             Mr.Abhay Prakash Sahay, CGSC
                                       with Mr.Suraj Kumar, Adv. &
                                       Mr.Shivam Wadhwa, Adv. for UOI.

     CORAM:
     HON'BLE MS. JUSTICE HIMA KOHLI
     HON'BLE MS. JUSTICE REKHA PALLI
                  ORDER

% 13.09.2018

1. The petitioner is aggrieved by the termination order dated

30.06.2014, passed by the respondent/Central Industrial Security

Force (CISF), terminating him from the post of Constable. The

petitioner has also challenged the decision of the Screening

Committee dated 23.02.2015 wherein it was decided that he was not

suitable for appointment in the CISF on the ground that he was

involved in a criminal case. Lastly, the petitioner has raised a

grievance against an order dated 17.04.2015 passed by the Inspector

General/Training Sector, CISF, rejecting his representation dated

30.01.2015 against his termination order.

2. A glance at the facts of the case is necessary. The petitioner

was appointed as a Constable in the CISF on 26.10.2013, prior

whereto on 07.08.2013, a case under Sections 13/3/67 of the

Gambling Act, was registered against him and some other co-accused,

vide FIR No.164 dated 07.08.2013, Police Station Sahlawas. It is not

in dispute that at the time of filling up his application for submitting

his candidature, the petitioner did not state anything about registration

of the captioned FIR. While the petitioner was still on probation, the

impugned termination order dated 30.06.2014 was issued by the

competent authority holding that he was not fit for permanent

appointment in the CISF.

3. Aggrieved by the said termination order, the petitioner

submitted a representation dated 15.09.2014, to the Director General,

CISF, wherein while candidly admitting to the fact that at the time of

his recruitment, while filling up the columns of the Attestation Form,

in the column pertaining to pending police case etc. he had marked

"No", he took a plea that at that stage he had no knowledge about the

said case registered against him. In the said representation, the

petitioner also pointed out that after receiving summons from the

concerned Court, he had faced a trial and vide judgment dated

06.09.2014, the trial Court had acquitted him of the charges levelled

under Sections 13/3/67 of the Gambling Act. It appears that

thereafter, based on the petitioner's representation, his case was

placed before the Screening Committee along with several other

candidates and the said Committee had turned down his candidature

on the ground that he was involved in a criminal case.

4. It is noteworthy that by the date the matter was placed before

the Screening Committee i.e. on 14.11.2014, the judgment acquitting

the petitioner had already been pronounced by the learned Judicial

Magistrate, First Class Judge, which as noted above, was dated

06.09.2014. Further, a copy of the said decision had been forwarded

by the petitioner to the competent authority. On receiving the

recommendations of the Screening Committee, the petitioner

submitted his representations/appeals dated 23.02.2015 & 06.04.2015,

to the Director General, CISF, which were rejected vide order dated

12.06.2015, by observing that there is no provision of a

revision/appeal in the CISF Rules against termination of the service.

Aggrieved thereby, the petitioner has filed the present petition.

5. Mr.Dahiya, learned counsel for the petitioner submits that while

rejecting the candidature of the petitioner, the respondents ignored the

decision of the Supreme Court in the case of Avtar Singh Vs. Union

of India & Ors. (2016) 8 SCC 471 which has expounded and clarified

the legal position on the question of suppression of information or of

submitting false information relating to a criminal case in a

verification form. He also relies on a decision of a Coordinate Bench

of this Court dated 19.02.2018 in WP(C) No.2916/2017 titled

Davender Kumar Vs. Union of India & Ors., to fortify his

submission that it is a fit case where the matter ought to be remanded

back to the respondents for a re-consideration by the Competent

Authority in terms of the decision of the Supreme Court in the case of

Avtar Singh (supra).

6. Per contra, Mr.Sahay, learned counsel for the respondents

submits that the service of the petitioner, who was a probationer, has

been rightly terminated by the respondents as he was found unsuitable

for appointment in the CISF due to his involvement in a criminal

case; that merely because the petitioner has been subsequently

acquitted by the trial court, would not be a reason for the respondents

to overlook the nature of allegations levelled against him in the said

criminal case and that the petitioner had deliberately suppressed the

fact of a criminal case pending against him by not disclosing the same

in the attestation form. Lastly, learned counsel for the respondents

draws our attention to the policy guidelines dated 01.02.2012, issued

by the Ministry of Home Affairs, Government of India, to contend

that cases under Section 13 of the Gambling Act, falls under serious

offences mentioned in the said guidelines and hence the respondents

were justified in turning down the candidature of the petitioner. He

concludes by citing a recent judgment dated 08.01.2018 of the

Supreme Court in a batch of petitions lead matter registered as WP

(C) No.67/2018 entitled "Union Territory, Chandigarh

Administration & Ors. Vs. Pradeep Kumar & Anr."

7. We have heard learned counsel for the parties, carefully

perused the records and examined the decisions cited by both sides.

We may note at the outset that the facts of the case are undisputed.

While the criminal case pending against the petitioner had attained

finality on 06.09.2014, when the learned Judicial Magistrate, First

Class, Jhajjar, had acquitted him and seven other accused in FIR 164

dated 07.08.2013, yet the Screening Committee of the respondents in

its meeting held on 14.11.2014 did not take into consideration the said

judgment, copy whereof was duly furnished by the petitioner. The

operative para of the judgment dated 06.09.2014 reads as follows:-

"15. Now the fact that accused were playing for profit or loss makes offence under this Section and it is the duty of the prosecution to prove that accused were playing the cards by putting money at stake and there was a game of chance and not merely a skill. Since PW 3 himself admitted that he has no knowledge regarding the game of cards and he cannot tell that accused were playing which game, therefore, it is clear that prosecution failed to prove this fact that it was a game of chance or skill.

Since the prosecution has been only able to establish that the accused were playing cards but the fact that the cards were played by putting money at stake and it was not a game of chance has not been satisfactorily proved by the prosecution. Also, the prosecution has failed to prove this fact that accused were involved in act of gambling but the prosecution has miserably failed to prove its case beyond reasonable shadow of doubts."

8. We may note that there is no discussion of the criminal case

against the petitioner by the Screening Committee except for cursorily

recording that he was involved in a criminal case. This, itself, runs

contrary to the decision relied on by learned counsel for the

respondents in the case of Pardeep Kumar & Anr. (supra) wherein

the Supreme Court had observed that the Screening Committee must

examine the candidature with utmost care and in the said context, had

set out a comparative table in para 14 of the said judgment referring

to the criminal cases in which the respondents in the captioned

appeals were involved and the reasoning given for their acquittal, viz-

a-viz the consideration given by the Screening Committee to the said

cases.

9. In the present case, no such exercise has been undertaken by the

Screening Committee before passing the impugned order. Rather a

one line order has been passed by the Screening Committee recording

that the petitioner is unsuitable for appointment as he was involved in

a criminal case. No discussion whatsoever has taken place with

regard to the nature of the offence in the criminal case in which the

petitioner was involved; whether he was acquitted or discharged;

whether it was a honourable acquittal or benefit of doubt had been

given to him for other reasons etc. We are therefore of the opinion

that it is a fit case where the impugned orders dated 30.01.2015,

23.02.2015 & 17.04.2015, ought to be quashed and set aside and the

matter remanded back to the respondents for re-examination in the

light of the decision of the Supreme Court in the cases of Avtar Singh

(supra) & Pardeep Kumar (supra).

10. Accordingly, while quashing the aforesaid orders dated

30.01.2015, 23.02.2015 & 17.04.2015, the matter is remanded back to

the respondents with a direction to re-consider the petitioner's case in

the light of the documents on the record of this petition and take a

reasoned decision within eight weeks from today under written

intimation to the petitioner. In the event, the decision taken by the

respondents is adverse to the petitioner, it would be open for him to

challenge the same in accordance with law.

11. The writ petition is disposed of with no orders as to costs.

12. Before parting with the case, we consider it necessary to

observe that the respondents are continuing to rely on a policy

guideline dated 01.02.2012, issued by the Ministry of Home Affairs,

Government of India, for considering cases of candidates for

appointment in CISF where criminal cases were pending against them

at the time of appointment, without taking note of the recent decision

of the Supreme Court in the case of Avtar Singh (supra followed by

the case of Devender Kumar (supra) In these circumstances, the

respondents are required to undertake a fresh exercise to formulate the

policy guidelines keeping in mind the directions issued in the

captioned cases. Needful shall be done within three months and a

copy of the revised guidelines shall be placed on record within three

weeks thereafter, failing which the Registry shall place the matter

back before the Court for appropriate orders.

HIMA KOHLI, J

REKHA PALLI, J SEPTEMBER 13, 2018/aa