Orissa High Court
Giridhari Bag vs Commandant on 6 March, 2025
Author: Arindam Sinha
Bench: Arindam Sinha, M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No.1627 of 2023
(I.A. No.4325 of 2023)
Giridhari Bag .... Appellant
-Versus-
Commandant, Orissa State Armed .... Respondents
Police (OSAP), Koraput and
others
Advocates appeared in this case:
For Appellant : Mr. Suraj Mohanty, Advocate
For Respondents : Mr. K.C. Kar, Government Advocate
CORAM:
THE HON'BLE MR. JUSTICE ARINDAM SINHA,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE M.S. SAHOO
JUDGMENT
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Date of hearing and judgment: 6th March, 2025
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ARINDAM SINHA, ACJ.
1. Mr. Mohanty, learned advocate appears on behalf of
appellant. He submits, the appeal be admitted on condoning
reported delay of 142 days. In the application his client has
stated, at the material time he was suffering from typhoid and
thus unable to contact his learned advocate for preparing and
filing the appeal. Mr. Kar, learned advocate, Government
Advocate appears on behalf of State.
2. We accept cause shown in the application. The delay is
condoned and the appeal admitted. The application is disposed
of.
3. Mr. Mohanty submits, by impugned judgment dismissal
from service directed by the disciplinary authority and appeal
rejected, were upheld. This was in spite of the learned single
Judge having found that his client had not even been issued the
show cause notice, for having suppressed four criminal cases
pending against him at the time when he made declaration for
being appointed. He was not given opportunity of hearing in the
disciplinary proceeding on absence of show cause notice. On
query made he submits, after the dismissal order but before his
client's appeal stood rejected, the acquittals happened.
4. He relies on view taken by another learned single Judge
of this Court in WPC (OAC) no.1058 of 2016 on judgment
dated 6th September, 2022 (S. Naresh Rao v. Principal
Secretary to Government of Odisha and Others). He submits,
in similar circumstances, the learned single Judge had set aside
the dismissal on allegation of suppression, where no show cause
notice had been issued. He submits, impugned judgment reveals
that the learned single Judge failed to appreciate the facts and
erred in law. The judgment be reversed.
5. Mr. Kar submits, there be adjournment for him to
respond.
6. A question of law has been raised, regarding a person
who had suppressed pendency of criminal cases against him,
obtained appointment and was subsequently acquitted, whether
can continue in service, particularly in the uniformed force.
7. In S. Naresh Rao (supra) two judgments of the Supreme
Court were relied upon in similar facts, where petitioner therein
had been acquitted after the discharge order but before the appeal
order. First is the case of Avtar Singh v. Union of India,
reported in (2016) 8 SCC 471. We reproduce below a passage
from paragraph 29 and paragraph 35 of the report.
"29. ... ... ... Similarly in case of suppression also,
if in the process of verification of information, certain
information comes to notice then also employer is
required to take a decision considering various aspects
before holding incumbent as unfit. If on verification of
antecedents a person is found fit at the same time
authority has to consider effect of suppression of a fact
that he was tried for trivial offence which does not
render him unfit, what importance to be attached to
such non-disclosure. Can there be single yardstick to
deal with all kinds of cases?
35. Suppression of "material" information presupposes
that what is suppressed that "matters" not every
technical or trivial matter. The employer has to act on
due consideration of rules/instructions, if any, in exercise
of powers in order to cancel candidature or for
terminating the services of employee. Though a person
who has suppressed the material information cannot
claim unfettered right for appointment or continuity in
service but he has a right not to be dealt with arbitrarily
and exercise of power has to be in reasonable manner
with objectivity having due regard to facts of cases."
(emphasis supplied)
The other judgment of said Court is in Joginder Singh v. Union
Territory of Chandigarh, reported in 2015 AIR SCW 483.
There the Supreme Court was considering honourable acquittal
as a mitigating fact for the authorities to deal with on the case of
suppression.
8. We have been shown appellant having had been acquitted
in four cases. One of them was Sessions Case no.3/4 of 2002, in
which the Court of Assistant Sessions Judge-cum-Chief Judicial
Magistrate, Kalahandi rendered judgment dated 21st May, 2002.
Charge offences under sections 294/307 of Indian Penal Code,
1860. We reproduce below paragraph-11 from the judgment.
"11. In the circumstances, the accused is found not guilty
U/s. 294/307 of the I.P.C. and is acquitted thereunder
U/s. 235(1) of the Cr.P.C. under benefit of doubt. He be
set at liberty forthwith."
(emphasis supplied)
9. Another of the four cases was G.R. case no.234 of
2001/T.R. no.309/2003 dealt with on judgment dated 11 th
November, 2003 by the Judicial Magistrate First Class,
Bhawanipatna. It was a case filed by the police against appellant.
Charge was, when they went nab him in a marriage party he
obstructed them from doing their duty and ran away. The
Magistrate held that there was lack of corroboration in the
evidence. There was also disbelief regarding the charge on
evidence laid by prosecution witnesses that they did not know
appellant yet went to nab him. Hence we must presume the police
had at least a photograph to identify the accused they were out to
nab.
10. The other two cases we accept as were of honourable
discharge following Avtar Singh (supra). However, above two
cases, especially the first one discussed, is not of honourable
acquittal.
11. Appellant also complains he was not given opportunity of
hearing. He did make representation to the appellate authority,
dealt with on order dated 10th November, 2004, as submitted by
Mr. Mohanty. Text of the order is reproduced below.
"Perused the representation of Sri Giridhari Bag,
Ex-Sepoy 518 of OSAP, 3rd Bn. Koraput together with the
connected records, documents and correspondence. He
has represented to consider the order of his removal from
service and to reinstate him explaining that some
criminal cases were registered against him and in the
meantime he has been acquitted of the charges. Records
show that the representationist was involved as an
accused in four heinous crimes during the period from
1999 to 2001. Local verification has revealed that he
was a criminal and an antisocial for which he was
considered unfit for rendering Police service.
Verification of his character and antecedents having been
found not satisfactory, he was removed from service. In
this connection it is material to mention that even in the
Verification Roll prescribed by PMR-673, at sl. 7 & 8 the
applicant had declared that he had never been accused in
any criminal case though at that point of time he was
involved in 4 criminal cases of grave nature. As per
provisions laid down in PMR-668(a), PMR- 673 (c) and
Rule-13 of Orissa Military Police Manual, 1953 the
Commandant, OSAP, 3rd Bn. is in order and the
representation does not call for any consideration.
Accordingly, the representation is rejected. The person
concerned should be informed accordingly. "
(emphasis supplied)
12. We see that the appellate authority described appellant as
a criminal and an antisocial though the revelation from the
record, of him being such, was at a time when the criminal cases
were pending. Subsequently the criminal cases resulted in
acquittal as aforesaid. The question is whether the representation
was considered in accordance with law. The Supreme Court in
the cases relied upon by appellant had said that there should not
be arbitrary treatment, even in a case of suppression when the
case was of trivial nature and where there had been honourable
acquittal. This fact appellant has not been able to establish,
neither that the cases were of trivial nature nor of him having had
been honourably acquitted in all the cases.
13. So far as appellant not having had opportunity of being
heard is concerned, he did make representation, disposed of by
appellate order dated 10th November, 2004. Initially not having
been heard did cause him prejudice but after that he was heard.
Furthermore, he mounted substantial challenge by the writ
petition and the learned single Judge has extensively discussed
the facts to come to finding that in spite of no show cause notice
issued, appellant was guilty of suppression and therefore had
obtained the appointment thereby, to refuse to interfere. Having
gone through impugned judgment and view taken in S. Naresh
Rao (supra) we do not have reason to interfere with impugned
judgment.
14. The appeal is dismissed.
(Arindam Sinha)
Acting Chief Judge
Digitally Signed Judge
Jyostna/Madhusmita
Location: ORISSA HIGH COURT
Date: 06-Mar-2025 18:30:27
