Avtar Singh v. Union of India and Others
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) LPA No. 885 of 2019 Devesh Kumar Pandey, aged about 41 years, son of Sri Annirudh Pandey, resident of village Kundrahe, PO Kundrahe, PS Majhiaon, District Garhwa ......Appellant Versus 1.The State of Jharkhand through the Director General of Police, Jharkhand having its office at Dhurwa, PO and PS Dhurwa, District Ranchi, Jharkhnd 2.The Deputy Inspector General of Police, Palamau Range, having its office at Daltonganj, PO and PS Sadar, District Palamau, Jharkhand 3.The Superintendent of Police, Latehar having its office at Collectorate Building, PO and PS Latehar, District Latehar, Jharkhand 4.Deputy Commissioner, Latehar having its office at Collectorate Building, ..... Respondents PO and PS Latehar, District Latehar, Jharkhand --------------- CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE RATNAKER BHENGRA For the Appellant For the State : Mr. Manoj Kumar Choubey, Advocate : Mr. Anish Kumar Mishra, AC to Sr. SC I --------------- O R D E R 05th July 2023 Per, Shree Chandrashekhar, J. I.A. No. 5702 of 2023 This application has been filed under section 5 of the Limitation Act for condoning the delay of 252 days in filing the present Letters Patent Appeal. 2. Having been satisfied of the cause shown by the appellant the delay of 252 days in filing LPA No. 885 of 2019 is condoned. 3. 4. I.A. No. 5702 of 2023 is allowed. LPA No. 885 of 2019
Decision
Devesh Kumar Pandey who is the writ petitioner is aggrieved of the order dated 26th February 2019 by which WP(S) No. 1112 of 2018 filed by him to challenge the order of dismissal from service has been dismissed. 5. By an order dated 13th July 2014 the disciplinary authority has inflicted punishment of dismissal from service and this order has been affirmed by the appellate authority vide order dated 04th August 2015 and the revisional authority vide order dated 30th August 2017. 2 LPA No. 885 of 2019 6. The aforesaid order of punishment dated 13th July 2014 and the orders passed by the appellate and revisional authorities were put to challenge before the writ Court on the ground that it was a bonafide mistake on the part of the delinquent Police Constable who was under an impression that unless the judgment of conviction is recorded in the trial he cannot be treated as an accused. 7. The writ Court dealt with this plea with reference to the judgment in “Avtar Singh v. Union of India and Others” (2016) 8 SCC 471 and has held as under: “10. Similar issue fell for consideration before the Hon’ble Supreme Court in the case of Avtar Singh Vs. Union of India and Others reported in (2016) 8 SCC 471. The Hon’ble Supreme Court by referring to several judgments has held that verification of character and antecedent is one of the important criteria, which is necessary to be fulfilled before appointment and an incumbent should not have antecedent of such a nature which may adjudge him unsuitable for the post. In the said judgment, in para 32, the Hon’ble Supreme court has held that once the verification form requires certain information to be furnished, declarant is duty bound to furnish it correctly and any suppression of material facts or submitting false information may by itself, lead to termination of his services or cancellation of candidature in an appropriate case. The Hon’ble Supreme Court further went on and held that in a criminal case where the incumbent has not been acquitted and the case is pending for trial, the employer may well be justified in not appointing such an incumbent or in terminating the services, as conviction ultimately may render him unsuitable for job and employer is not supposed to wait till the outcome of criminal case. The Hon’ble Supreme Court further went on to hold that in this type of case, non-disclosure or submitting false information would assume significance and that by itself may be ground for employer to cancel candidature or to terminate services. Para 32 of the aforesaid judgment is quoted herein under for better appreciation:- “32. No doubt about it that once verification form requires certain information to be furnished, declarant is duty bound to furnish it correctly and any suppression of material facts or submitting false information, may by itself lead to termination of his services or cancellation of candidature in an appropriate case. However, in a criminal case incumbent has not been acquitted and case is pending trial, employer may well be justified in not appointing such an incumbent or in terminating the services as conviction ultimately may render him unsuitable for job and employer is not supposed to wait till outcome of criminal case. In such a case non- disclosure or submitting false information would assume significance and that by itself may be ground for employer to cancel candidature or to terminate services.” 11. The Hon’ble Supreme Court in para 35 and 36 of the said judgment dealt with the proposition as to whether the suppression of “material” information and whether the same is not very technical or whether the same is trivial, it is the employer who has to give due consideration. The employee cannot claim unfettered right for appointment or continuity in service but he has a right not to dealt with arbitrarily. The yardstick which is to be applied has to depend 3 LPA No. 885 of 2019 upon the nature and sensitivity of the post. 12. After discussing the propositions, the conclusion has been arrived at by the Hon’ble Supreme Court which has been incorporated in para 38.1 to 38.11. The outcome of the said conclusion is that if any criminal case which is trivial in nature, the employer can overlook the same but if the case involves immoral turpitude and the offence is serious in nature, the employer is to take proper steps. The information which has to be given by the employee must be true and there should be no suppression. 13. In this case, it is admitted that the petitioner had knowledge of the case pending against him as he was arrested in the said case. The allegation is with regard to breaking of railway wagon with help of extremists’ organization, which is not trivial in nature and the same is a serious offence. Thus, the suppression of the aforementioned information about his antecedent is fatal that too when the petitioner is in a police service i.e. a disciplined force. ” 8. Mr. Manoj Kumar Choubey, the learned counsel for the appellant would contend that the punishment of dismissal from service is disproportionate to the charge framed and found proved against the appellant which aspect has been overlooked by the writ Court. 9. Briefly stated, the appellant was appointed as Constable Driver on 30th April 2012 under the Jharkhand Police. At the time of entry in the service he suppressed the information about his criminal antecedent and objectionable behaviour. But this fact was detected soon thereafter and a notice was issued to him on 9th January 2013 that he has suppressed material facts at the time of entry in the service. His reply dated 11th January 2013 was not found satisfactory and he was put under suspension and a departmental proceeding was initiated vide memo no. 180 dated 18th January 2013. The charge against the appellant is that he did not disclose his involvement in Majhiaon PS Case No. 115 of 2008 which was registered under sections 413 and 414 of the Indian Penal Code, section 17 of the Criminal Law Amendment Act and section 3 of the Railway Property (Unlawful Possession) Act, 1966, which act of his amounts to misconduct. The enquiring officer submitted a report on 30th May 2014 holding the charge proved against the appellant and 2nd show-cause notice was issued to him on 9th June 2014. 10. As noticed above, the order of dismissal from service has been passed against the appellant. 11. This is not a case pleaded by the appellant that he was not afforded sufficient opportunity to defend himself in the domestic enquiry. This is also not a case set-up by him that the domestic enquiry was 4 LPA No. 885 of 2019 conducted in breach of the rules of natural justice or contrary to the procedure prescribed under the Discipline and Conduct Rules. And, the only plea urged on behalf of the appellant is that the punishment of dismissal from service is disproportionate to the charge found proved against him. In a long line of judgments, the Hon'ble Supreme Court has held that the question of punishment fall exclusively within the domain of the departmental authority and unless it is demonstrated from the materials on record that the order of punishment suffers from arbitrariness or irrationality or the punishment is such that it shocks the conscience of the Court, the writ Court shall not interfere with the order of punishment. 12. In “Union of India v. P. Gunasekaran” (2015) 2 SCC 610 the Hon'ble Supreme Court has held as under: “12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: (a) the enquiry is held by a competent authority; (b) the enquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; (i) the finding of fact is based on no evidence. 13. Under Articles 226/227 of the Constitution of India, the High Court shall not: (i) reappreciate the evidence; (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience.” 5 LPA No. 885 of 2019 13. Mr. Manoj Kumar Choubey, the learned counsel for the appellant has referred to the order of punishment passed against Mritunjay Kumar Upadhyay who was also served a charge-memo on the allegation of suppressing his criminal antecedent. A mere glance at the order of punishment passed against Mritunjay Kumar Upadhyay would reveal that he was made accused in a case under sections 147, 148, 341, 323, 325 and 504 read with section 34 of the Indian Penal Code. Therefore, the allegations against both these persons are drastically different. While Mritunjay Kumar Upadhyay has been chargesheeted for the offences which are minor in nature and the maximum punishment for which does not exceed two years, the plea of parity in punishment raised on behalf of the appellant cannot be accepted. The appellant is a named accused in Majhiaon PS Case No. 115 of 2008. This has also come on record that the Commander Jeep bearing no. DL-01-TH-415 which was carrying the incriminating materials such as gas cutter etc. is owned by the appellant and he has been arrested on the spot. In course of investigation it was found that the appellant had connections with CPI(M) and a chargesheet was laid in which he has been sent-up for trial. This also appears from the materials on record that the appellant suffered a disclosure statement in which he admitted that he was carrying the damaged railway wagons in his Commander Jeep and Marshal Max Jeep under the protection of Kameshwar Singh Kharwar who is the Area Commander of CPI(M). 14. It is a well settled proposition in service jurisprudence that an employee cannot claim to remain in service as a matter of right. The choice to continue an employee in service must rest with the employer whose decision generally shall not be interfered by the Court unless it is found wholly arbitrary, irrational and mala fide. The judgments in “Avtar Singh” and “Union Territory, Chandigarh Administration and others v. Pradeep Kumar and another” (2018) 1 SCC 797 also deal with discretion of the employer in the matter of selection and appointment of its employee. “Avtar Singh” provides a guideline to the employer in the matter of criminal cases of trivial nature but at the same time a reading of the said judgment would reveal that the final decision shall rest with the employer. 15. In “Avtar Singh” the Hon'ble Supreme Court has held as under: “36. What yardstick is to be applied has to depend upon the nature of 6 LPA No. 885 of 2019 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. 37. The “McCarthyism” is antithesis to constitutional goal, chance of reformation has to be afforded to young offenders in suitable cases, interplay of reformative theory cannot be ruled out in toto nor can be generally applied but is one of the factors to be taken into consideration while exercising the power for cancelling candidature or discharging an employee from service. …………………………………………………………………………............. 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 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.” 16. The judgment in “Pradeep Kumar” refers to previous judgments to hold that in the uniform services the candidates with criminal antecedents have no place. In “Pradeep Kumar” the Hon'ble Supreme Court has held as 17. under: “13. It is thus well settled that acquittal in a criminal case does not automatically entitle him for appointment to the post. Still it is open to the employer to consider the antecedents and examine whether he is suitable for appointment to the post. From the observations of this Court in Mehar Singh and Parvez Khan cases, it is clear that a candidate to be recruited to the police service must be of impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged, it cannot be presumed that he was honourably acquitted/completely exonerated. The decision of the Screening Committee must be taken as final unless it is shown to be mala fide. The Screening Committee also must be alive to the importance of the trust reposed in it and must examine the candidate with utmost character.” 18. In our opinion, the departmental authorities have rightly inflicted punishment of dismissal from service which, in view of suppression of the aforementioned information about lodging of a criminal case and very serious allegations thereof against the appellant, is legal and justified. 19. While so, we do not find any ground to interfere in this matter and, accordingly, LPA No. 885 of 2019 is dismissed. (Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 05th July 2023 Tanuj/N.A.F.R