The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.17432 of 2019 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950). Digam @ Digambar Das …. Petitioner(s) State of Orissa & Ors. …. Opposite Party (s) -versus- Advocates appeared in the case through Hybrid Mode: : For Petitioner(s) Ms. D. Mohapatra, Adv. For Opposite Party (s) : Mr. Ch. Satyajit Mishra, AGA CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-30.04.2024 DATE OF JUDGMENT: -25.06.2024 Dr. S.K. Panigrahi, J. 1. The Petitioner through this instant Writ Petition has challenged the order of discharge dated 11.06.2013 and the letter dated 24.07.2019 issued by the Commandant, 1st India Reserve Battalion, Upperkolab, Koraput rejecting his prayer for reinstatement of his service. I. FACTUAL MATRIX OF THE CASE: 2. The brief fact of the case as presented by the Petitioner is that: (i) The Petitioner was appointed as a Constable in 1st India Reserve Battalion Upperkolab, Koraput on 16.11.2011 being selected in a regular recruitment process and his assigned number was C/50.
Legal Reasoning
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:15 Page 1 of 11 (ii) It is submitted that while he was continuing as such, he was sent for training in the year 2012 to the O.S.A.P. 5th Battalion, Baripada for a period of nine months. While he was in the training, he received a notice on 11.06.2013 from the opposite party No.4 that he had been discharged from the service w.e.f. 15.05.2013 for his involvement in Khariar P.S. Case No.113 dated 23.07.2011 for the alleged offences under Sections 341, 323, 294, 500 and 34 I.P.C. (iii) It is submitted that the order of discharge was passed without a proper inquiry and without affording any opportunity of hearing to the petitioner, which amounts to gross violation of principle of natural justice. Registration of a case ipso facto cannot be a ground for dismissal from the service. (iv) The Petitioner after the order of discharge was passed, have enquired into the matter and participated in the trial. In the trial, he was acquitted from the charges, which is a clear acquittal and he is not acquitted on the ground of benefit of doubt vide judgment dated 06.01.2014. (v) It is submitted that after the petitioner was acquitted from the charges, which is only ground for his discharge from the service, he made a representation to Opposite Party No.4 for reinstatement of him in the service. Since his representation was not attended to, he was constrained to approach the Odisha State Administrative Tribunal vide O.A. No.3157 (C) of 2018. The said petition was taken up on 18.04.2019 and the following order was passed: "Heard learned counsel for the applicant and learned Standing Counsel. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:15 Page 2 of 11 The grievance of the applicant is that while he was a constable in 1 Indian Reserve Battalion Upperkolab, Koraput implicated in a criminal case vide G.R. Case No.311 of 2011 in the Court of J.M.F.C., Khariar and for that reason he was discharged from Government Service but the said G.R. Case No.311 of 2011 ended in acquittal vide judgment dated 6.1.2014 as at Annexure-3 and thereafter he has made representation to the authority at Annexure-4 series for his reinstatement in service
Legal Reasoning
Learned counsel for the applicant submitted that he will be satisfied, if the paper book is remitted to Respondent No.3 to consider his grievance regarding his reinstatement in service and take a decision within a period to be stipulated by this Tribunal.
Decision
Learned Standing Counsel submitted that he would have no objection if the O.A. is disposed of without going into the merit of the case. On hearing the learned counsel for both sides and without going into the merits of the case, the C.A. is disposed of with a direction for respondent No.3 to consider and disposed of the representation of the applicant as at Annexure-4 Series and take a decision within a period of one month from the date of receipt of copy of this order and convey the result thereof to the applicant. Copy of paper book along with copy of this order be sent to respondent No. 3 at the cost of the applicant. Sd/-xx xx x xx.” (vi) Upon disposal of the Original Application, the opposite party No.4 has considered the representation of the petitioner and have rejected his representation for reinstatement in service on the ground that the petitioner has given a false information in the application form that he has no criminal case pending against him vide letter dated 24.07.2019. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:15 Page 3 of 11 (vii) It is submitted that the petitioner has been falsely implicated in the criminal case and at the time of making application, the petitioner was not aware about the pending of the criminal case. The order of discharge shows that because of his involvement in the criminal case, he was removed from the service. (viii) After disposal of the Original Application, it was indicated that he had given false statement in the application. At the time of making an application, the Petitioner was aged about 20 years and he was like a juvenile. Probably, he did not mention this out of fear that if he did so he would automatically be disqualified. At any event, it was not such a serious offence like murder, dacoity or rape. Therefore, the opposite parties after he was acquitted should have taken a lenient view instead of discharge some other minor punishment like censure could have imposed on the petitioner. Thus, the punishment against the petitioner is amounts to disproportionate to the charges leveled against him. Hence, the order of discharge under Annexure-2 is liable to be quashed and consequently the order under Annexure-5 is also liable to be quashed. (ix) It is submitted that the Petitioner has been recruited by the Opposite Parties after following the due procedure of law. He has no other disqualification to continue in the post. He worked for a period of more than 2 years and there was no adverse remark against him during the said period. The allegations found against the Petitioner, is not so serious that call for a discharge. He is a young man having his long career to go. In the beginning of his career, such a punishment is Page 4 of 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:15 uncalled for and deserved to be quashed. The Petitioner lost his job for a minor act which is also not intentional. By the order of discharge, he lost his livelihood. The action of the Opposite Parties are too harash and not expected from the Government, which is a model employer and it is expected to forgive an employee for his minor misconduct and should have considered as to whether the act is intentional or bona fide. In that view of the matter, the order of discharge under Annexures -2 & 5 are liable to be quashed. (x) It is submitted that the order of discharge was passed without affording any opportunity to the petitioner, enabling him to explain the circumstances, in which he has suppressed the facts. The order of discharge shows that because of his involvement in the criminal case, he has been discharged from the service, whereas in the letter dated 24.07.2019 it was indicated that at the time of filing of the application, he has suppressed the material fact. Whatever the case, the petitioner should have been given opportunity to explain the circumstances. It is well settled position of law that before imposition of punishment, the person concerned should have been given reasonable opportunity of hearing. In this case, no opportunity has been given to the petitioner and straight way the order or discharge was passed. Therefore, the order of discharge passed by the opposite parties clearly violates the principle of natural justice. In that view of the matter, the order of discharge is not sustainable and is liable to be quashed. (xi) Hence, this Writ Petition. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:15 Page 5 of 11 II. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES : 3. Learned counsel for the Opposite Parties/ State earnestly made the following submissions in support of his contentions. (i) It is submitted that the order of Discharge is passed without a proper enquiry and without affording any opportunity to the Recruit Constable 50 Digambar Das. In the Police Manual Rule -668 (a) it was clearly mentioned that, the appointment is subject to satisfactory verification of character and antecedent and re-verification of Original documents. In case any adverse come to notice during verification the appointee will be liable for discharge from service. (ii) Accordingly, he was appointed vide B.O No. 2137 dt. 16.12.2011 with a condition that, the appointment was purely temporary and subject to satisfactory verification of H.S.C Certificate, Caste Certificate, Employment exchange Card, Driving License, NCC certificate, Sports Certificate, Character and antecedents by the competent authoritles / local police. Their service can be terminated at any time without assigning any reason and without issuing any prior notice during the probation period. (iii) It is submitted that the Recruit Constable 50 Digambar Das has not mentioned the correct information about him in the verification Roll as well as in the application form. Column No.21 of the application from it is clearly stated that whether the candidate is involved in any criminal case, if involved or convicted and details to be given. Though the petitioner was well aware of the fact that he was involved in the criminal case as stated in Column No.21 and, hence, he has suppressed Page 6 of 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:15 materials fact at the time of filing application. Similarly, Column No.7 and 8 of the verification roll speaks as follows: (7) & (8) Whether in debt and whether any criminal case or civil suit is pending against him is so give detail. Though a criminal case was pending against him at the time of filing verification roll, he has stated ’No" at Colum No.7. Hence, he has suppressed the material facts in verification roll. (iv) It is submitted that after receiving the orders of the O.A.Τ. on the O.A. No.3157 (c)/2018 the Annexure -4 series of the Recruit Constable 50 Digambar Das was taken in to consider by the Commandant, 1st IR Battalion, Koraput to carry out the orders of the O.A.T and found no merit for reinstatement in consideration as it does not prove anywhere that he has no involvement in any case. (v) Learned counsel for the Opposite Parties, accordingly, prays for dismissal of this Writ Petition. III. COURT’S REASONING AND ANALYSIS: 4. It is asserted that the Discharge Order was issued without conducting a proper inquiry and without giving Recruit Constable 50 Digambar Das an opportunity to present his case. According to Police Manual Rule 668(a), an appointment is contingent upon the satisfactory verification of character, antecedents, and the re-verification of original documents. If any adverse information is discovered during this verification process, the appointee is subject to discharge from service. 5. Recruit Constable Digambar Das was appointed under order number 2137 dated 16.12.2011, with the stipulation that his appointment was purely temporary and contingent upon the satisfactory verification of Page 7 of 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:15 various documents and credentials, including his H.S.C Certificate, Caste Certificate, Employment Exchange Card, Driving License, NCC Certificate, Sports Certificate, and character and antecedents by the competent authorities or local police. It was also explicitly stated that his service could be terminated at any time without prior notice or reason during the probation period. 6. It is argued that Recruit Constable Digambar Das did not provide accurate information about himself in both the verification roll and the application form. In Column No. 21 of the application form, applicants are required to disclose any involvement in criminal cases, including details of such involvement or convictions. Although Digambar Das was aware of his involvement in a criminal case, he falsely answered "No" in Column No. 21, thereby concealing this critical information. Similarly, Columns No. 7 and 8 of the verification roll inquire about any debts or pending criminal or civil cases. Despite having a pending criminal case at the time of filing the verification roll, he again responded "No" in Column No. 7, thus suppressing material facts. 7. After receiving orders from the Odisha Administrative Tribunal (O.A.T.) regarding O.A. No. 3157 (c)/2018, the Commandant of the 1st IR Battalion, Koraput, reviewed the Annexure-4 series related to Recruit Constable 50 Digambar Das. Upon review, the Commandant concluded that there was no merit in reinstating Das, as there was no evidence to prove his non-involvement in the criminal case. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:15 Page 8 of 11 8. Similar issue was confronted by the Apex Court in Jainendra Singh vs State Of U.P. Tr. Prinl. Sec. Home & Ors1, and the Court has succinctly dealt with such issue which are as follows: 31. As noted by us, all the above decisions were rendered by a Division Bench of this Court consisting of two- Judges and having bestowed our serious consideration to the issue, we consider that while dealing with such an issue, the Court will have to bear in mind the various cardinal principles before granting any relief to the aggrieved party, namely: (i) Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer. (ii) Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if find not desirable to appoint a person to a disciplined force can it be said to be unwarranted. (iii) When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry. (iv) A candidate having suppressed material information and/or giving false information cannot Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:15 1 CIVIL APPEAL NO. 5671/2012 (@ SLP (C) No. 28608/2011) Supreme Court of India Page 9 of 11 in service and the claim right to continue the nature of to employer, having regard employment as well as other aspects, has the discretion to terminate his services. information for (v) Purpose of calling regarding involvement in any criminal case or detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have clear bearing on the character and antecedents of the candidate in relation to his continuity in service. (vi) The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service. (vii) The standard expected of a person intended to serve in uniformed service is quite distinct from other services and, therefore, any deliberate a vital statement information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted. (viii) An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material false statement relating to his involvement in the criminal case, conviction or detention, even if ultimately he was acquitted of the said case, inasmuch as such a situation would make a person undesirable or unsuitable for the post. (ix) An employee in the uniformed service pre- supposes a higher level of integrity as such a person is expected to uphold the law and on the information or making regarding omission or Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:15 Page 10 of 11 authorities entrusted with contrary such a service born in deceit and subterfuge cannot be tolerated. (x) The the responsibility of appointing Constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a Constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of Constable. 32. When we consider the above principles laid down in majority of the decisions, the question that looms large before us is when consideration of such claim by candidates who deliberately suppressed information at the time of recruitment; can there be different yardsticks applied in the matter of grant of relief.” the 9. The Petitioner has not committed a minor misconduct in order to deserve some sympathy. Since he is in a disciplined force, his conduct should be clean and he should be above board in his approach. However, the Petitioner has not disclosed all information truthfully, hence, the discharge from service cannot be said to be disproportionate. 10. With respect to the aforesaid discussion and the cases cited hereinabove, this Court is not inclined to entertain the prayer of the Petitioner. 11. This Writ Petition is, accordingly, dismissed. 12. Interim order, if any, passed earlier stands vacated. Orissa High Court, Cuttack, Dated the 25th June, 2024/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:15 (Dr. S.K. Panigrahi) Judge Page 11 of 11