Orissa High Court

Jatin Kumar Panjia vs State Of Odisha & Others on 26 August, 2021

                    IN THE HIGH COURT OF ORISSA, CUTTACK

                               WPC(OAC) No.4378 of 2012

             In the matter of an application under Articles 226 & 227 of the
             Constitution of India.

                                     ----------------------------

             Jatin Kumar Panjia               .......                  Petitioner


                                            -Versus-


             State of Odisha & others .......                         Opp. Parties


                   For Petitioner:              -       M/s. Ashok Das, M.R. Dash,
                                                             S.A.K. Dora, A.K. Mohanty,
                                                             D.Mohanty & S.K. Samal


                   For Opp. Parties:            -       Mr. H.K. Panigrahi
                                                        Addl. Standing Counsel (OAT)
                                     ----------------------------

        P R E S E N T:

THE HONOURABLE MR. JUSTICE BISWAJIT MOHANTY

---------------------------------------------------------------------------------- Date of Hearing: 09.08.2021 Date of Judgment: 26.08.2021

----------------------------------------------------------------------------------

B. Mohanty, J. This petition has been filed praying for quashing the

order of removal dated 09.10.2007 under Annexure-2 series passed

by the Commandant, 4th O.S.A.P (S.S) Battalion, Malkangiri

(opposite party No.3) by which the petitioner was removed from the

service. The petitioner has also prayed that Director General of // 2 //

Police, Odisha (opposite party No.2) be directed to reinstate him in

service in view of judgment dated 05.09.2012 passed by the

learned J.M.F.C., Nabarangpur in G.R. Case No.409 of 2004/T.R.

No.146 of 2011 under Annexure-4 series.

2. The case of the petitioner is that he was selected after

undergoing a process of selection and appointed as a Sepoy on

25.12.2006 vide Annexure-1. Thereafter while undergoing training,

opposite party No.3 removed him from services vide order dated

09.10.2007 vide Annexure-2 series as during verification of

character and antecedents, it was found that he was involved in a

criminal case, which was then sub-judice. On 18.10.2007 vide

Annexure-3, the petitioner filed a representation before opposite

party No.3 praying for reinstatement as he was not actually

involved in the said case though his name found place in the F.I.R.

But nothing was done on the same. Thereafter vide judgment dated

05.09.2012 under Annexure-4 series as indicated above, the

petitioner along with all other accused persons were acquitted. In

such background, it is the case of the petitioner that his removal

from service on the ground of involvement in the criminal case is

illegal and he be reinstated in service.

In reply filed by the opposite party No.3, a stand has

been taken that the present petition is barred by limitation as

impugned order dated 09.10.2007 under Annexre-2 series has

// 3 //

been challenged in 2012. Secondly, his stand is that in the

appointment order under Annexure-1, it was specifically

mentioned that appointment of the petitioner was provisional

subject to satisfactory verification of character and antecedents

and in case of any falsity/adverse report; the appointee would be

summarily discharged from services. During verification of

character and antecedents, it was revealed that the petitioner was

involved in a criminal case i.e. G.R. Case No.409 of 2004/T.R.

No.146 of 2011. This information was suppressed by the petitioner

and accordingly he was rightly removed under Rule 673(c) r/w 668

of Orissa Police Rules. It is also his stand that opposite party No.3

has never received the representation under Annexure-3.

3. Mr. Das, learned counsel for the petitioner submitted

that since the petitioner was not actually involved in the case and

since such a stand has been fortified by the judgment of acquittal

under Annexure-4 series, therefore in the application/verification

form, he had stated accordingly that no criminal case was pending

against him. Now since the petitioner has been acquitted in the

criminal case, the impugned order of removal be set aside. In this

context, he relied on the decisions of the Supreme Court rendered

in Commissioner of Police & others vs. Sandeep Kumar

reported in (2011) 4 S.C.C. 644, Ram Kumar Vs. State of U.P and

others, reported in A.I.R. 2011 SC 2903 and in Avtar Singh Vs.

// 4 //

Union of India reported in A.I.R. 2016 S.C. 3598 and decision of

Calcutta High Court rendered in Bibrata Biswas vs. Union of

India reported in A.I.R. ONLINE 2019 CAL 796. He also submitted

that since the petitioner was a Sepoy, Orissa Police Rules under

which the removal order has been passed, have no application to

him as service conditions of Sepoys are governed by Orissa Special

Armed Police Act, 1946, Orissa Special Armed Police Rules, 1953

and the Orissa Special Armed Police Battalion and Orissa State

Armed Police (Special Security) Battalion Service (Method of

Recruitment and Conditions of Service of Sepoys) Order, 2006, "for

short" "2006 Order". Since he has not been removed under any of

the statutes indicated above, he reiterated that the order of

removal be set aside and he be reinstated in services.

Mr. Panigrahi, learned Additional Standing Counsel

(OAT) submitted that apart from the fact that the present petition

is barred by limitation also later acquittal of the petitioner is of no

consequence, as the petitioner by suppressing the pendency of a

criminal case while filling in the application form/Verification Roll

had committed fraud and such a person could not have been

permitted to continue as a member of a disciplined force and

accordingly he was rightly removed from the services as per Rule

673 (c) r/w 668 of Orissa Police Rules. In this context, he drew the

attention of this Court to Verification Roll dated 25.12.2006 under

// 5 //

Annexure-A where the petitioner had stated at Sl.No.7 that he had

neither been accused in a criminal case nor had he ever been in

prison, which according to Mr. Panigrahi was palpably false as by

then G.R. Case No.409 of 2004 was pending against him. He

further submitted that even as per his application form dated

06.11.2006 under Annexure-B at Sl.No.19, petitioner had given a

false reply to question requiring him to give information of his

involvement in any criminal case and conviction. In this context,

he relied upon the decisions of the Supreme Court in Daya

Shankar Yadav Vs. Union of India and Others reported in (2010)

14 S.C.C. 103, Commissioner of Police, New Delhi and Another

Vs. Mehar Singh reported in (2013) 7 S.C.C. 685, Devendra

Kumar Vs. State of Uttaranchal & others, reported in (2013) 9

SCC 363, and State of Rajasthan & others vs. Love Kush

Meena, reported in 2021 S.C.C. Online S.C. 252 and the decision

of this Court in Sudeb Suna Vs. The Presiding Officer, Labour

Court, Sambalpur and Another, reported in 2016 II ILR CUT

1263. He also pointed out that the decision of the Supreme Court

in Avtar Singh (supra) has not taken into account its decision as

rendered in Mehar Singh Case (Supra) and Devendra Kumar case

(supra). He also laid great emphasis on language of appointment

order under Annexure-1, on Rules 11 & 13 of Orissa Special Armed

Police Rules, 1953, which deal with verification of antecedents and

// 6 //

discharge of recruits respectively, on Sub-clause (1) of Clause 13 of

"2006 Order" which also deals with verification of antecedents and

character and on Sub-clause (4) of Clause-13 which according to

him permitted the authority to make use of the provisions of Orissa

Police Rules, 1940, containing rules and instructions made by the

State Government and rules and orders framed by Inspector

General of Police with the approval of the State Government which

are binding on all police officers. In this context, he drew the

attention of this Court to "Preface" of Orissa Police Rules. He also

pointed out that the "2006 Order" is a statutory order as the same

has been made under Section-2 of the Police, Act, 1861.

Accordingly, he contended that the authorities have rightly relied

on the relevant provisions of Orissa Police Rules in removing the

petitioner from services, who suppressed pendency of a criminal

case.

4. Heard learned counsel for the parties.

5. First let us discuss the objection of Shri Panigrahi on

limitation point. In the present case, the impugned order of

removal was passed on 09.10.2007 vide Annexure-2 series and

challenging such an order, this case was originally filed before the

erstwhile Orissa Administrative Tribunal on 21.12.2012.

Accordingly, Mr. Panigrahi submitted that the petition is barred by

limitation and should be dismissed on that ground. This Court is

// 7 //

not inclined to accept such submission for the following reasons.

Here the petitioner was removed from service on 09.10.2007 on

account of involvement in a criminal case. That criminal case

ended in an acquittal vide judgment dated 05.09.2012 vide

Annexure-4 series. Thereafter, the present case was filed during

2012. Thus sufficient ground/explanation exists for the delay in

filing this case. Therefore, the case cannot be thrown out on the

ground of delay.

6. Now coming to the merits of the case, it is clear upon

perusal of materials on record that while applying & filling in the

verification form, the petitioner had suppressed that he was an

accused in a pending criminal case. Further, no rejoinder has been

filed disputing the arguments relating to suppression made in the

counter. The appointment order clearly indicated that the

appointment of the petitioner was provisional and subject to

satisfactory verification of character and antecedents. It was also

indicated that in case of any falsity and adverse report, he would

be discharged from services summarily and whenever necessary

criminal proceeding will be initiated against him. Further a perusal

of Verification Roll under Annexure-A clearly shows that in reply to

Question Nos.7 & 8 of the Verification Roll, wherein he was

required to state whether he had ever been an accused in any

criminal case and whether any criminal case was pending against

// 8 //

him, he had replied in the negative through at that point of time

G.R. Case No.409 of 2004/T.R. No.146 of 2011 was pending

against him. Also at Sl. No.19 in the Application form at

Annexure-B he has given a false answer that he is not involved in

any criminal case. Therefore, suppression of material information

in this case is writ large. The appointment order under Annexure-

1, Rule-11 of Orissa Special Armed Police Rules, 1953 & Sub-

clause (1) of Clause 13 of "2006 order" clearly speaks of

requirement of verification of character and antecedents and

appointment being made subject to clearance from character and

antecedents angle.

In such background, impugned order has been passed

involving Clause (c) of Rule 673 r/w Rule 668 of Orissa Police

Rules. Let us now discuss as to whether a removal order can be

passed relying on the above noted rules so far as a Sepoy is

concerned. For this, we may note that as per Section 4 of the

Orissa Special Armed Police Act, 1946, Sepoys fall under the

category of Special Armed Police Officer. Sub-clause (4) of Clause

13 of "2006 Order" makes it clear that terms and conditions of

service of Sepoys shall be same as assigned to them in the Police

Act, 1861, Orissa Special Armed Police Act, 1946 & Rules and

orders framed under this Act and in the instruction of the

Government, issued from time to time. "PREFACE" to Orissa Police

// 9 //

Manual/Rules, 1940 makes it clear that it contains both Rules

made by State Government as well as Rules and Orders framed by

Inspector General of Police with the approval of the State

Government under the provisions of the Police Act, 1861 and those

are binding on all police officers. Since Sepoy is a police officer as

indicated earlier, there is no doubt the Rules under Orissa Police

Rules will apply to the Sepoys. Therefore, this Court has no

hesitation in coming to a conclusion that no illegality has been

committed by the authority in invoking the provision of Orissa

Police Rules, 1940 to pass the impugned order.

Now coming to para-673 of the Orissa Police Rules,

1940, the same is quoted hereunder for the sake of convenience.

"673. (a) A verification roll shall be prepared in P.M. Form No.11 and sent for verification to the home district of every candidate for the post of sub-inspector, constable or any ministerial post.

(b) In the case of men literate in their vernacular only, the questions on the roll shall be put to the candidate by the reserve inspector or an officer nominated by the Superintendent and that officer shall write down the answers, sign them and produce them together with the candidate, before the Superintendent. English- knowing persons shall fill in and sign the answers. The Superintendent, if satisfied with the answer, will sign the roll, have the impression of the man's left thumb taken in the space provided and pass an order for enlistment.

(c) Enlistment order : The order for enlistment shall then be entered in the order book, the service book shall be prepared and the

// 10 //

verification roll despatched to the Superintendent of the recruit's home district is situated. The number and date of despatch shall be noted in the proper place in the service book, and on return of the roll with a report that the men bears a good character and has made a truthful statement as to his antecedents the Superintendent shall initial this entry have the necessary entry made in the service book and order the verification roll to be filed in. If the character of the man is reported to be bad or his statement false, he shall be removed from the force."

Clauses (a) & (b) of Rule 673 deal with mode of

preparation of verification roll in P.M. Form No.101. Clause (c) of

Rule 673 makes it clear that if the character of the person is

reported to be bad or his statement as made is found to be false,

then he shall be removed from the force. In such background,

since during verification of character and antecedents, it was found

that the petitioner has suppressed pendency of a criminal case

against him, Rule 673(c) of Orissa Police Rules is clearly attracted

to this case. In fact in the Verification Roll under Annexure-A, the

petitioner has made a false statement with regard to pendency of

the criminal case. As indicated earlier, Rule 673(c) clearly

mandates that if a person has given a false statement, he shall be

removed from the services. Since the impugned order was

accordingly passed, such order cannot be described as legally

vulnerable. Conceding for a moment but not admitting that the

above rules do not apply, even then it can be seen that Rule 11 of

// 11 //

Orissa Special Armed Police Rules, 1953 also envisages

preparation of verification of Roll under P.M. Form 101 for the

verification of antecedents and Sub-clause (1) of Clause 13 of

"2006 Order" which is a statutory order also speaks of verification

of antecedents and appointment being dependant upon verification

of character and antecedents. Thus even otherwise power is there

with the authority to remove a Sepoy from services if his character

and antecedent were found to be bad. Here suppression of material

facts clearly reflects poorly on the character of the petitioner. It is

also settled that a wrong reference to the power under which action

is taken by the authorities will not per se vitiate that action if it can

be justified under some other power under which the authority can

do that act. Thus a recital of wrong provision of law will not

invalidate an order, which is otherwise within the power of

authority making it. All these things have been made clear by the

Supreme Court in Municipal Corporation of the city of

Ahmedabad Vs. Ben Hiraben Manilal reported in (1983) 2 SCC

422 & State of Karnataka Vs. Muniyalla reported in (1985) 1 SCC

196. Further as per Clause 13(2) of "2006 Order" a person, who is

appointed, shall be on probation for a period of two years. Here the

petitioner was removed from the services within ten months of his

appointment after finding suppression of material facts. Apart from

all these, since the appointment order under Annexure-1 made it

// 12 //

clear that the appointment of the petitioner was provisional and

was subject to satisfactory verification of character and

antecedents and since in case of falsity and adverse report, he can

be summarily discharged and further since during verification

suppression of pendency of criminal case came to light, it cannot

be said that the impugned order has been passed in an illegal or

arbitrary manner. Later acquittal cannot efface or obliterate the

fraud committed by the petitioner.

7. Now coming to the decisions cited by the petitioner,

this Court is of the opinion that the decision cited in Sandeep

Kumar case (supra), Ram Kumar case (supra) are factually

distinguishable. In both the cases, the person was acquitted prior

to issuance of advertisement and more importantly there do not

exist any reference to any Rule or Statutory Order under which the

impugned actions were taken. Here, admittedly the impugned

action has been taken under Rules 668 & 673 of Orissa Police

Rules which explained earlier are fully applicable to Sepoys. Here

Rule 673 (c) of Orissa Police Rules clearly says that in case of false

statement made by a candidate, he shall be removed from service.

Even otherwise also as explained earlier there exists other

statutory backing for taking the impugned action. Similarly, the

decision of Calcutta High Court in the case of Bibrata Biswas

(supra) is also factually distinguishable. There on the date of

// 13 //

incident, the petitioner was a minor and he was not aware of the

pendency of a criminal case. Further, though the High Court has

referred to Rule 52.1 & Rule 67.2 of Railway Protection Force

Rules, 1987, however, language contained therein is different from

the language of Rule 673(c) of Orissa Police Rules, which

commands removal of a person, who has given a false statement

and language of Clause 13(1) of "2006 Order" which makes it clear

that appointment of a Sepoy is always subject to clearance from

character and antecedent angle. Further, Rules 52.1 & 67.2 deal

with pre-appointment stage, whereas Rule 673(c) deals with post-

appointment stage. In the last decision cited by the learned counsel

for the petitioner i.e. Avtar Singh case (supra), a three Judge

Bench decision also does not come to the rescue of the petitioner

while answering the reference, the Supreme Court has

authoritatively laid down the following guidelines:

"30. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize our conclusion thus:

(1) Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.

(2) While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.




                  // 14 //




       (3) The employer shall take into
consideration            the          Government

orders/instructions/rules, applicable to the employee, at the time of taking the decision.

(4) In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before (emphasis supplied) filing of the application/ verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted:-

(a) In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.

(b) Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature terminate services of the employee.

(c) If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.

(5) In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.

(6) In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case.

(7) In a case of deliberate suppression of fact with respect to multiple pending cases such

// 15 //

false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.

(8) If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.

(9) In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.

(10) For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.

(11) Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."

For the purpose of this case, keeping in mind the

factual ground, paras 1, 2 & 3 are only relevant. In para-1, the

Supreme Court has made it clear that the candidate must give true

information to the employer before or after entering into service

with regard to pendency of a criminal case and there should be no

suppression or false mention on this. While passing order of

// 16 //

termination for giving false information, the employer may take

note of special circumstances of the case if any, while giving such

information and should take into consideration government

Orders/Instructions/Rules applicable to the employee at the time