Rajendra Prasad Dhaka CISF Fact Udyogamandal v Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 6TH DAY OF JULY 2017/15TH ASHADHA, 1939** **WP(C).No. 22245 of 2017 (E) ----------------------------** ## **PETITIONER(S):** **-------------** **RAJENDRA PRASAD DHAKA CISF FACT UDYOGAMANDAL, S/O MANGAL CHAND DHAKA, AGED 26 YEARS, PRESENTLY RESIDING AT CISF UNIT, FACT UDYOGAMANDAL, POST OFFICE-ELOOR, ERNAKULAM DISTRICT-683501.** **BY ADV. SRI.T.SANJAY** **RESPONDENT(S):** - **--------------** **1. THE DIRECTOR GENERAL CISF HEADQUARTERS, 13, CGOS COMPLEX, LODHI ROAD, NEW DELHI-110003.** **2. THE CHAIRMAN,** - **17TH STANDING SCREENING COMMITTEE, CISF HQRS., 13 CGOS COMPLEX, LODHI ROAD, NEW DELHI-110003.** **3. THE INSPECTOR GENERAL (SOUTH SECTOR) CISF (SOUTH SECTOR) HEADQUARTERS, CHENNAI-600009.** **4. THE DEPUTY INSPECTOR GENERAL/SZ, 2ND FLOOR, D BLOCK, RAJAJI BHAVAN, BESANT NAGAR, CHENNAI-600090.** **5. THE COMMANDANT,** - **CISF UNIT, FACT UDYOGAMANDAL, ELOOR, UDYOGAMANDAL, ERNAKULAM-683501.** **6. UNION OF INDIA REPRESENTED BY SECRETARY, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI-110001.** **R1-R6 BY ADV. SMT.O.M.SHALINA, CGC R BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RKC** **WP(C).No. 22245 of 2017 (E)** **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 PHOTOCOPY OF SHOW-CAUSE NOTICE DTD. 30.05.2017.** **EXHIBIT P2 PHOTOCOPY OF THE ORDER DTD. 22.01.2013 OF THE FIRST CLASS JUDICIAL MAGISTRATE, SAMBARLAKE, JAIPUR.** **EXHIBIT P2(A) ENGLISH TRANSLATION OF THE ORDER DATED 22.01.2013 OF THE FIRST CLASS JUDICIAL MAGISTRATE, SAMBARLAKE, JAIPUR.** **EXHIBIT P3 PHOTOCOPY OF QUESTIONNAIRE FORM DATED 05.12.2015.** **EXHIBIT P4 PHOTOCOPY OF REPLY DATED 28.06.2017 TO EXT.P1.** **RESPONDENT(S)' EXHIBITS: NIL** **RKC** ## **TRUE COPY** **PA TO JUDGE** ## **P.V.ASHA, J.** ## **W.P.(C) No.22245 of 2017-E** ## **Dated this the 6[th] day of July, 2017** ## **JUDGMENT** The petitioner, who has been working as a Constable/Driver in the Central Industrial Security Force (CISF), has filed this writ petition, challenging the show cause notice Ext.P1 dated 30.5.2017 served on him, after submitting Ext.P4 explanation. By the time the writ petition came up for admission, he received an order dated 4.7.2017, which is produced along with a memo by the learned counsel for the petitioner, by which his services stands terminated, under sub rule (2) of rule 25 and sub rule (4) of rule 26 of CISF Rules, 2001. 2. After completing the basic training course at Bhilai, which started from 05.12.2005, petitioner joined duty at the CISF Unit, FACT Udyogamandal on 08.06.2016. Petitioner submits that he has been performing his duties with due diligence with gradings of 'very good' in the appraisal reports. Whileso he received Ext.P1 show cause notice proposing termination of service. The case against the petitioner in Ext.P1 show cause notice is that he did not disclose his involvement in a criminal case at the time of his recruitment, in the questionnaire along with the recruitment application form dated 15.7.2014 and the questionnaire at the medical examination held on 23.4.2015 and that he mentioned “no” against column No.4 of questionnaire form ie. W.P.(C) No.22245/2017 **==> picture [14 x 10] intentionally omitted <==** “whether any FIR was made in the past” which amount to suppression of facts and violation of declaration given by him in the application submitted for enrollment in CISF on 15.7.2014. It is further alleged that in the form of agreement dated 24.2.2016 at CISF RTC Bhilai at the time of joining CISF he has put his signature where it is specifically stated that “your services are liable to be terminated by competent authority for suppression of any factual information at the time of enrollment”. It is further stated that Standing Screening Committee constituted by the competent authority for examining the cases in respect of candidates having involvement in the criminal case in the past examined his case and arrived at the conclusion that he is unsuitable for appointment in CISF on the ground of his involvement in a serious offence from which he was acquitted since the prosecution did not prove the charges beyond reasonable doubt. It is stated that the decision of the committee is approved by the DG/CISF and communicated on 19.5.2007. 3. On receipt of Ext.P1, the petitioner submitted Ext.P4 explanation pointing out that in the form of enrollment, he submitted the answers on account of lack of awareness, he being a member of a downtrodden family in poor financial circumstances. He stated that there was nobody to counsel him at the relevant time. He further W.P.(C) No.22245/2017 **==> picture [14 x 10] intentionally omitted <==** submitted that due to his inadvertence, he happened to answer the questionnaire in the negative; being a native of Hindi belt, he was unable to comprehend the significance of the essence of question. When the instance occurred, he was only 21 years old. He further states that he happened to make the entries at the time of medical examination, on advice from certain officials since he was acquitted by the Court. According to the petitioner a false case was foisted against him. 4. The petitioner has produced Ext.P3 questionnaire form which he submitted at the time of joining, in which he had correctly furnished the answers. He has also produced the character and antecedents certificates along with the questionnaire Ext.P3, in which all the details regarding his involvement in the crime as well as his acquittal as per the judgment of the court are furnished. According to him he came to know about these mistakes only from the show cause notice. He pointed out that any drastic action, on account of the inadvertent and unintentional mistakes, would deprive him and his family of their livelihood. Explaining these factors he has submitted Ext.P4 representation. But without considering the explanation the respondents have issued the order of termination on 4.7.2017. 5. Sri.T.Sanjay, the learned counsel for the petitioner submits W.P.(C) No.22245/2017 **==> picture [14 x 10] intentionally omitted <==** that while rejecting his explanation and before issuing orders terminating the services of the petitioner, the respondents have not considered his case, in the light of the dictum laid down by the apex court in the judgment in _**Avatar Singh Vs. Union of India : (2016)**_ _**8 SCC 471**_ , where the question regarding liability of termination from service for making false entries in the attestation form was considered at length and laid down the parameters for finalising such cases. 6. I heard Smt.Shalina, learned Central Government Counsel also and considered the contentions of both sides. 7. Even though the respondents have stated that the acquittal of petitioner was only on the benefit of doubt, it would appear that the parameters laid down by the apex court in **Avatar Singh's** case were not considered by the screening committee or the Director General-1[st] respondent who approved the screening committee's report . 8. Para 30 onwards of the judgment in _**Avtar Singh v. Union of India : (2016) 8 SCC 471**_ , is relevant in this context, which read as follows : 30. The employer is given “discretion” to terminate or otherwise to condone the omission. Even otherwise, once employer has the power to take a decision when at the time of filling verification form declarant has already been convicted/acquitted, in such a case, it becomes obvious that all the facts and attending circumstances, including impact of suppression or false information are taken into consideration while adjudging suitability of an incumbent for services in question. In case the employer comes to the conclusion that suppression is immaterial and even if facts would have been disclosed it would not W.P.(C) No.22245/2017 :5: have adversely affected fitness of an incumbent, for reasons to be recorded, it has power to condone the lapse. However, while doing so employer has to act prudently on due consideration of nature of post and duties to be rendered. For higher officials/higher posts, standard has to be very high and even slightest false information or suppression may by itself render a person unsuitable for the post. However, same standard cannot be applied to each and every post. In concluded criminal cases, it has to be seen what has been suppressed is material fact and would have rendered an incumbent unfit for appointment. An employer would be justified in not appointing or if appointed, to terminate services of such incumbent on due consideration of various aspects. Even if disclosure has been made truthfully, the employer has the right to consider fitness and while doing so effect of conviction and background facts of case, nature of offence, etc. have to be considered. Even if acquittal has been made, employer may consider nature of offence, whether acquittal is honourable or giving benefit of doubt on technical reasons and decline to appoint a person who is unfit or of dubious character. In case employer comes to conclusion that conviction or ground of acquittal in criminal case would not affect the fitness for employment, incumbent may be appointed or continued in service. 31. Coming to the question whether an employee on probation can be discharged/refused appointment though he has been acquitted of the charge(s), if his case was not pending when form was filled, in such matters, employer is bound to consider grounds of acquittal and various other aspects, overall conduct of employee including the accusations which have been levelled. If on verification, the antecedents are otherwise also not found good, and in number of cases incumbent is involved then notwithstanding acquittals in a case/cases, it would be open to the employer to form opinion as to fitness on the basis of material on record. In case offence is petty in nature and committed at young age, such as stealing a bread, shouting of slogans or is such which does not involve moral turpitude, cheating, misappropriation, etc. or otherwise not a serious or heinous offence and accused has been acquitted in such a case when verification form is filled, employer may ignore lapse of suppression or submitting false information in appropriate cases on due consideration of various aspects. 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. W.P.(C) No.22245/2017 :6: 33. The fraud and misrepresentation vitiates a transaction and in case employment has been obtained on the basis of forged documents, as observed in _M. Bhaskaran case_ , it has also been observed in the reference order that if an appointment was procured fraudulently, the incumbent may be terminated without holding any inquiry, however, we add a rider that in case employee is confirmed, holding a civil post and has protection of Article 311(2), due inquiry has to be held before terminating the services. The case of obtaining appointment on the basis of forged documents has the effect on very eligibility of incumbent for the job in question, however, verification of antecedents is different aspect as to his fitness otherwise for the post in question. The fraudulently obtained appointment orders are voidable at the option of employer, however, question has to be determined in the light of the discussion made in this order on impact of suppression or submission of false information. 34. No doubt about it that verification of character and antecedents is one of the important criteria to assess suitability and it is open to employer to adjudge antecedents of the incumbent, but ultimate action should be based upon objective criteria on due consideration of all relevant aspects. 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. 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. 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. 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 of required information. W.P.(C) No.22245/2017 :7: 38.2. 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. 38.3. The employer shall take 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 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. 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, 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 W.P.(C) No.22245/2017 :8: 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. 9. Therefore I am of the considered view that the matter requires a re-consideration by the 1[st] respondent, untrammeled by what is stated in the order of termination issued on 4.7.2017. In the above circumstances, the writ petition is disposed of, directing the 1[st] respondent to reconsider Ext.P4 explanation submitted by the petitioner in the light of the judgment in _**Avatar Singh's**_ case (supra) within a period of one month from the date of receipt of a copy of the judgment. Till such time the order of termination of services of petitioner shall be kept in abeyance. Sd/- **P.V.ASHA JUDGE** rkc