Union Of India vs Ex-Const/Dvr Mukesh Kumar Raigar ...
2021 Latest Caselaw 6553 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              D.B. Special Appeal Writ No. 637/2021

1.      Union Of India, Through Secretary, Ministry Of Home
        Affairs, New Delhi-1
2.      Director General, CISF, CGO Complex, Lodhi Road, New
        Delhi-03
3.      Inspector General, CISF 13, CGO Complex, Lodhi Road,
        New Delhi 03
4.      Deputy Inspector General (AP), West Zone, Airport Hq
        Kendriya Sadan-C-301, Sector-10, C.B.D. Belapur, New
        Delhi-614
5.      Sr. Commandant, CISF (Unit), Airport, Mumbai-99
                                                                       ----Appellants
                                   Versus
Ex-Const/dvr Mukesh Kumar Raigar Son Of Ram Swaroop Raigar,
Aged About 33 Years, R/o Village And Post Office Tatera, Tehsil
Neemkathana, District- Sikar-332701(Rajasthan)
                                                                      ----Respondent

For Appellant(s) : Mr. R.D. Rastogi, Additional Solicitor General assisted by Mr. Akshay Bhardwaj through VC For Respondent(s) : Mr. O.P. Mishra

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MS. JUSTICE REKHA BORANA

Order

16/11/2021

This appeal is filed by the Union of India to challenge the

judgment of learned Single Judge dated 17.02.2021 passed in

Civil Writ Petition No.17475/2018. This litigation has checkered

history. Briefly stated the facts are as under:-

The respondent-original petitioner was serving as a

Constable-cum-Driver with CISF. Before his selection and

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appointment in CISF, a criminal complaint involving offences

punishable under Sections 323, 324 and 341 of IPC was lodged

against him on 07.11.2003. After his selection and before

appointment, he had to fill up an attestation form making

necessary declarations regarding his involvement in any criminal

offence. He filled up such attestation form on 28.10.2007 on which

date admittedly the said criminal case was pending. He however

did not declare such pending criminal proceedings against him. On

21.11.2007 he was acquitted of the charges on a compromise

entered into between the parties.

When the employer came to know about the pendency of

criminal proceedings on the date of appointment and non-

disclosure by the employee of such pendency, a charge-sheet was

issued on 18.04.2009 for major penalty. The petitioner admitted

that he had not made the disclosure of the pending criminal case

but sought to explain it by suggesting that he was a young man at

the time and a compromise had already been arrived at the time

of making the declaration. On 11.07.2009, the disciplinary

authority imposed a penalty of reduction of pay by one stage. The

DIG of CISF however took this order of the disciplinary authority

in revision in terms of Rule 54 of CISF Rules, 2001 and on

09.03.2010 awarded a penalty of dismissal from service on the

petitioner. The petitioner's appeal against such order was

dismissed by the appellate authority on 23.06.2010. His further

revision was also dismissed. He thereupon filed Writ Petition

No.8190/2012 which was disposed of by the learned Single Judge

on 16.02.2018. In such order after referring to the decision of

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

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and Ors. reported in (2016) 8 SCC 471 the learned Single Judge

quashed the order of dismissal and gave following directions:-

"This petition deserves to be allowed in view of the law laid down by the Apex Court. The impugned orders are quashed and set aside. The petitioner is directed to file a detailed representation before the Appointing Authority for re-consideration of his case in the context of judgment of the Apex Court in the case of Avtar Singh (supra) and of this Court in the case of Kamal Singh Meena (supra). The Appointing Authority is directed to decide the representation filed by the petitioner by reasoned and speaking order with reference to the judgments as indicate above, within a period of eight weeks from the receipt of the representation.

The writ petition stands allowed accordingly."

The entire question was considered by the Revisional

Authority while disposing of the representation of the petitioner in

terms of the order passed by this Court. The Revisional Authority

passed a fresh order on 14.05.2018 and disposed of the

representation of the petitioner in following terms:-

"4.Now THEREFORE, the representation dated 06.03.2018 of petitioner has been examined in the light of Judgment Order dated 21.07.2016 of Supreme Court of India in Avtar Singh case and Judgment Order dated 29.03.2016 of Rajasthan High Court in Kamal Singh Meena case. Upon examination of the case holistically, it is found that Section 324 indicated in the criminal case is a cognizable offence and is not covered amont the list of minor offences (indicated in Annexure -'B') of MHA policy dated 01.02.012. From the facts it is also observed that he was charge sheeted U/S-324 for voluntarily causing hurt by sword which is a dangerous weapon. Subsequently he was acquitted only after compromise with the party which manifest his involvement in a serious offence.

5.Further, it is revealed that while the petitioner was appointed in CISF, a Criminal Case was pending against him at the time of his enrolment in the Force but he did not reveal the same in the Attestation Form rendering him unsuitable for Govt. service as per warning indicated pointed on the top of the Attestation Form. As per charge

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sheet/FR he was released on bail by the police, hence he was very well aware about registering criminal case against him and is tantamount to deliberate suppression of facts which is an aggravating circumstance.

6.It is also observed that he was appointed in CISF on 03.11.2007 and acquitted from the charges later on 21.11.2007 based on compromise between the party. It can thus be inferred that he was very much aware about the criminal case registered against him at the time of appointment. But he had suppressed this fact intentionally in the Attestation form which he submitted on 28.10.2007 for appointment to the post of Constable/GD. The petitioner has not been acquitted honourably in the criminal case and the Court has acquitted him merely on the basis of compromise with the other party which does not amount to a clean acquittal. Hence he is not found suitable for appointment in CISF.

7.CISF is an Armed Force of the Union of India and it is deployed in sensitive Sectors such as Airports, Ports, Department of Atomic Energy, Department of Space, Metro, Power and Steel, for Internal Security duty, Election duty etc. The force personnel, therefore, are required to maintain discipline of the highest order and the involvement of the petitioner in such grave offence debars him from appointment.

8.Hence, in compliance of the Hon'ble High Court of Rajasthan at Jaipur Order dated 16.02.2018, the case of CISF No. 074501856 Ex-Constable Mukesh Kumar Raiger has been considered afresh and his representation dated 06.03.2018 has been examined in the light of Judgment Order dated 21.07.2016 in Avtar Singh case and Judgment Order dated 29.03.2016 of Rajasthan High Court in Kamal Singh Meena and he is found not suitable for appointment in CISF for the post of Constable/GD in view of the reasons explained in the preceding paragraphs of this order."

The petitioner once again approached this Court by filing a

fresh Writ Petition No.17475/2018 and challenged the said order

of the Revisional Authority dated 14.05.2018. In such writ

petition, the learned Single Judge passed the order dated

17.02.2021 which is impugned in this appeal. The writ petition of

the petitioner was allowed and the order dated 14.05.2018 was

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set aside. The authorities were directed to reinstate the petitioner

in service with all consequential benefits. Following observations of

the learned Single Judge may be noted:-

"22. Thus, the moot question which arises is whether in the aforesaid circumstances, the petitioner would be treated as removed from service while deciding the representation and whether the respondents were required to again examine suitability of continuing the petitioner in service.

23. If the facts are examined in the light of the judgment passed in Avtar Singh Vs. Union of India & Ors. (supra), the respondents were only required to see whether action is required to be taken against the petitioner on account of the alleged concealment. Admittedly, concealment was in relation to a case, as noticed above, of a minor nature. It is also an admitted position that the proceedings in the said case stand quashed on the basis of the compromise. Therefore, the interpretation taken by the respondents by treating it as an acquittal, which cannot come within the meaning of 'clean acquittal', is misconceived. The impression is wrong. Acquittal of any nature makes a person, against whom offences are alleged, free. It is the way the judgment is written. A person, who is an accused, has no say in the manner in which a judgment is written by the Court. In criminal law, the principle is settled that a person who is acquitted on account of paucity of evidence, has the same effect as an acquittal after examining the statements of the witnesses and the Court gives a verdict that the statements recorded before the Court do not prove the guilt. It is to be noticed that a person who faces criminal trial undergoes a severe mental agony. If he is acquitted in the case, his acquittal has to relate from the day he was charged of the offences. The entire trial is set at naught. To put it differently, a person, who is acquitted, cannot be put to a second trial. Such person cannot be made to face social deprivation by not considering him for employment or denying him a right to continue him in employment.

24. In the present case, the petitioner is found to have been already appointed. So far as his performance is concerned, the respondents did not find any shortcoming thereto. The circumstances mentioned in Avtar Singh Vs. Union of India & Ors. (supra), thus clearly show that the petitioner was to be continued in employment. Moreover, once the High Court has already quashed the punishment of removal and the appellate orders, the respondents could not

(6 of 13) [SAW-637/2021]

have disallowed the petitioner to continue in employment.

25. In view of the discussions made above, the present writ petition succeeds and is accordingly allowed. The order impugned dated 14/05/2018 is quashed & set aside and the respondents are directed to reinstate the petitioner in service with all consequential benefits. Cost made easy. All pending applications stand disposed of."

Appearing for the Union of India Standing Counsel Mr. R.D.

Rastogi vehemently contended that the learned Single Judge

committed a serious error. In the previous round of litigation the

High Court had not set aside the punishment order on merits. The

issue was placed back to the Revisional Authority for

reconsideration. The Revisional Authority thus had full discretion

to pass a fresh order in accordance with law which the Revisional

Authority had done. He submitted that the petitioner had

deliberately concealed a vital information from the appointing

authority. This itself amounted to act of moral turpitude. The

petitioner was engaged as a Constable in a disciplined force such

as CISF. His act of not disclosing his involvement in a criminal case

involving offences punishable under Sections 323, 324 and 341 of

IPC was a serious lapse. It was up to the competent authority to

judge the impact of such deliberate omission on the part of the

petitioner. Learned counsel for the appellants relied on certain

decisions reference to which would be made at appropriate stage.

On the other hand, counsel for the original petitioner

opposed the appeal contending that the petitioner was a young

man when he was involved in a criminal case. This case was

compromised and therefore dropped. The petitioner has thereafter

served the CISF for several years without any complaint or

blemish. All these aspects should have been taken into

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consideration by the Revisional Authority as has been held by a

three Judge Bench of the Supreme Court in Avtar Singh (supra).

The Revisional Authority failed to take into account all these

factual aspects of the matter and observations made by the

Supreme Court in the case of Avtar Singh (supra). The learned

Single Judge therefore rightly set aside the order of the Revisional

Authority.

The facts on record are virtually undisputed. The petitioner

applied for appointment as a Constable in CISF. He was already

facing a criminal case involving offences punishable under

Sections 323, 324 and 341 of IPC. When the petitioner was

selected and offered appointment he had to make a declaration

which besides other things, required him to provide details of his

involvement in criminal case if any. Admittedly, the petitioner did

not disclose the information of pending criminal case in such

attestation form. The attestation form also carried a warning that

any false declaration may result into adverse consequences.

It is true that the petitioner was subsequently acquitted.

However, such acquittal was on a compromise and therefore it was

not a clean acquittal and acquittal took place after the petitioner

filled the attestation form. The effect of these circumstances on

the petitioner's engagement as a Constable in CISF has to be

judged in light of decisions of the Supreme Court holding the field.

The questions of effect of pendency of criminal cases, of conviction

or acquittal in such criminal cases and the effect of failure of a

candidate to disclose such information at the time of selection

have occupied the minds of Supreme Court on numerous

occasions. Many of these aspects came up for consideration before

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a three Judge Bench of the Supreme Court in case of Avtar Singh

(supra) in which following observations need to be noted:-

"36. What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by authorities concerned considering post/nature of duties/services and power has to be exercised on due consideration of various aspects.

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

38.1. 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 or required information.

38.2. While passing order of termination of 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.

38.3. The employer shall taken into consideration the government orders/instructions/rules, applicable to the employee, at the time of taking the decision.

38.4. In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourses appropriate to the case may be adopted:

38.4.1 In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a pretty offece 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.

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

38.4.3. 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,

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the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.

38.5. 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. 38.6. 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.

38.7. In a case of deliberate suppression of fact with respect to multiple pending cases such 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.

38.8. 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.

38.9. 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.

38.10. 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.

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

As per this judgment thus the effect of non-disclosure of a

pending criminal case has to be judged by the employer on the

basis of various factors such as the nature of post held, the

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organisation which employs the person and the sensitivity of the

criminal case etc.

In case of Devendra Kumar Vs. State of Uttaranchal and

Ors. reported in (2013) 9 SCC 363, the Supreme Court had

observed as under:-

"24. In the instant case, the High Court, has placed reliance on the Government Order dated 28-4-1958 relating to verification of the character of a government servant, upon first appointment, wherein the individual is required to furnish information about criminal antecedents of the new appointees and if the incumbent is found to have made a false statement in this regard, he is liable to be discharged forthwith without prejudice to any other action as may be considered necessary by the competent authority. The purpose of seeking such information is not to find out the nature of gravity of the offence or the ultimate result of a criminal case, rather such information is sought with a view to judge the character and antecedents of the job seeker or suitability to continue in service. Withholding such material information or making false representation itself amounts to moral turpitude and is a separate and distinct matter altogether than what is involved in the criminal case.

26. The court below have recorded a finding of fact that the appellant suppressed material information sought by the employer as to whether he had ever been involved in a criminal case. Suppression of material information sought by the employwer or furnishing false information itself amounts to moral turpitude and is separate and distinct from the involvement in a criminal case. In view of the above, the appeal is devoid of any merit and is accordingly dismissed."

More recently in case of Commissioner of Police Vs. Raj

Kumar reported in (2021) 8 347, the Supreme Court observed

that the Courts in exercise of judicial review cannot second guess

the suitability of a candidate for any public office or post. In

absence of malice or non-application of mind or illegality, intense

scrutiny to adjudge the suitability of candidate renders the Court's

decision suspect to charge of trespass into executive power of

determining suitability of candidate for appointment. This was a

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case in which the Police Department refused to appoint the

candidates as Constables on the ground that they were involved in

criminal cases and in some cases even charges were framed after

which cases against them were compromised. It was observed

that in public service like any other, presupposes that State

employer has an element of latitude or choice upon who should

enter its service. In yet another recent decision in the case of

Rajasthan Rajya Vidyut Prasaran Nigam Limited and Ors.

Vs. Anil Kanwariya decided by the Supreme Court on

17.09.2021, reported in 2021 SCC Online 739, it was observed as

under:-

"The issue/question may be considered from another angle, from the employer's point of view. The question is not about whether an employee was involved in a dispute of trivial nature and whether he has been subsequently acquitted or not. The question is about the credibility and/or trustworthiness of such an employee who at the initial stage of the employment, i.e., while submitting the declaration and/or not disclosing and/or suppressing material fact of having involved in a criminal case. If the correct facts would have been disclosed, the employer might not have appointed him. Then the question is of TRUST. Therefore, in such situation, where the employer feels that an employee who at the initial stage itself has made a false statement and/or not disclosed the material facts and/or suppressed the material facts and therefore he cannot be continued in service because such an employee cannot be relied upon even in future, the employer cannot be forced to continue such as employee. The choice/option whether to continue or not to continue such as employee always must be given to the employer. At the cost of repetition, it is observed and as observed hereinabove in catena of decision such an employee cannot claim the appointment and/or continue to be in service as a matter of right."

Reverting back to the facts of the case, as noted, the

Revisional Authority as desired by the High Court took into

consideration the representation of the petitioner but found that

the petitioner cannot be retained in service for which Revisional

(12 of 13) [SAW-637/2021]

Authority has recorded elaborate reasons. It has been observed

that the allegation against the petitioner involved one of

commission of offence under Section 324 of IPC which is causing

hurt by sword which is a dangerous weapon. The acquittal was

based on a compromise. The petitioner had not been acquitted

honorably. The CISF is an Armed Force of Union of India and its

man power is deployed in sensitive sectors such as Airports,

Department of Atomic Energy, Department of Space and other

Internal Security duties including election duties. The personnel of

the Force are required to maintain discipline of the highest order.

Inter-alia on such grounds the Revisional Authority refused to

reconsider the question of punishment imposed on the petitioner.

We do not think that there was any further scope for tampering

with the view of the Revisional Authority. Even looked from the

angle of observations made by the Supreme Court in the case of

Avtaar Singh (supra), Revisional Authority was justified in

taking the view that it did. As observed by the Supreme Court in

case of Raj Kumar (supra) such public employment carries a

degree of discretionary powers in the competent authority and

competent authorities thus enjoy a degree of latitude. When the

petitioner was being engaged as a Constable in an Armed Force

whose personnel are involved in maintaining security of sensitive

organisations, what level of discipline should be expected, must

essentially be left to the employer.

We are unable to accept the contention of the Counsel for

the original petitioner that in the earlier round of litigation when

the High Court passed an order dated 16.02.2018 in the petition

filed by the petitioner No.8190/2012, there was no scope for the

Revisional Authority to reiterate its stand on maintaining the order

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of dismissal. The counsel had argued that Union of India without

challenging the said order could not have reiterated the stand that

the Revisional Authority did. We have perused the order which

merely required the Revisional Authority to consider the

representation of the petitioner and the entire issue keeping in

mind the observations made by the Supreme Court in the case of

Avtar Singh (supra). There is nothing in this order suggesting

that the penal order of dismissal stood set aside in perpetuity.

In the result, the impugned judgment of the learned Single

Judge is set aside. Appeal of the Union of India is allowed and

disposed of accordingly.

                                   (REKHA BORANA),J                                                  (AKIL KURESHI),CJ

                                   KAMLESH KUMAR/N.Gandhi/2









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