Rajendra Prasad Dhaka v. Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 04TH DAY OF NOVEMBER 2019 / 13TH KARTHIKA, 1941** ## **WP(C).No.19586 OF 2018(W)** ## **PETITIONER:** ## **RAJENDRA PRASAD DHAKA** **CISF FACT UDYOGAMANDAL,S/O.MANGAL CHAND DHAKA,AGED 26 YEARS,RESIDING AT VILLAGE & POST ITAWA,VIA BADHAL,TEHSIL KISHNAGAD,RENWAL,JAIPUR DISTRICT,RAJASTHAN-303602.** **BY ADV. SRI.T.SANJAY** ## **RESPONDENT:** - **1 THE DIRECTOR GENERAL CISF HEADQUARTERS,13,CGOS COMPLEX,LODHI ROAD,NEW DELHI-110003.** - **2 THE CHAIRMAN 17TH/18TH STANDING SCREENING COMMITTEE,CISF HQRS,14 CGOS COMPLEX,LODHI ROAD,NEW DELHI-110003.** - **3 THE INSPECTOR GENERALSOUTH SECTOR CISF (SOUTH SECTOR)HEADQUARTERS,CHENNAI-600009.** - **4 THE DEPUTY INSPECTOR GENERALSZ 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 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL** ## **R1-6 BY SMT.O.M.SHALINA, CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 3008-2019, THE COURT ON 04-11-2019 DELIVERED THE FOLLOWING:** W.P.(C).No.19586/18 2 ## **JUDGMENT** **Dated this the 4th day of November 2019** - 1.The petitioner, who was enrolled as Constable/Driver in Central Industrial Security Force (CISF for short) has approached this Court challenging Exhibits P10 and P11 orders by which his service was terminated and to declare that the petitioner is entitled for declaration of probation and continuance in service on the basis of his superior ratings in the APAR 2016 and acquittal by the trial. - 2.Heard the learned counsel for the petitioner and the learned Central Government Counsel appearing for the respondents. - 3.The petitioner submits that he was appointed and posted to CISF Unit, FACT on 8.6.2016. His Annual Performance Appraisal Report for the year 2016 was very good. However, he was served with Exhibit P1 show cause notice stating that on verification of character and antecedants, it was revealed that he was involved in a criminal case under Section 25 of the Arms Act and that he was acquitted on 22.1.2013, only on W.P.(C).No.19586/18 3 the benefit of doubt. It was further stated that he had not disclosed the fact of involvement in a criminal case at the time of recruitment, which amounts to suppression of material information. It is further stated that the Standing Screening Committee found that the petitioner is unsuitable for appointment in CISF on the grounds of involvement in a serious offence for which he was acquitted on being granted the benefit of doubt. The petitioner was asked to show cause why his service shall not be terminated. The petitioner submitted his reply by producing Exhibit P2 judgment of acquittal passed by the Judicial Magistrate of First Class, Sambarlake, Jaipur, Rajasthan. Reliance was placed on the decision of the Apex Court in Avatar Singh v. Union of India [(2016) 8 SCC 471] . By Exhibit P7, a writ petition preferred by the petitioner was disposed of directing the consideration of the issue in accordance with the guidelines issued in Avatar Singh's case by the Apex Court. It is submitted that thereafter, Exhibit P8 order had been issued which was challenged before this Court. This Court found that Exhibit P8 order was not issued as directed in Exhibit P7 judgment and the facts had W.P.(C).No.19586/18 4 not been considered in accordance with the parameters laid down by the Apex Court in Avatar Singh's case. The order was, therefore, set aside and directions were issued to consider the matter afresh. Exhibit P10 order dated 16.5.2018 has been issued by the 1[st] respondent. It was found that the case was re-examined by the 18[th] Standing Screening Committee in the light of Avatar Singh's case and the petitioner was again found unsuitable on the ground that he was acquitted in the criminal case only by extending the benefit of doubt and Section 25 of Arms Act is a serious offence as per the MHA policy dated 1.02.2012. It was held in Exhibit P10 as follows:- “13. Further, section 25 of Arms Act is mentioned in Annexure “A'’ (serious offence) of MHA Policy dated 01.02.2012. As per para 2(V) of MHA Policy, such candidates against whom charge sheet in criminal case has been filed in the Court and the charges fall in the category of serious offences or moral turpitude, though later on acquitted by extending benefit of doubt, will generally not be considered suitable for appointment in the CAPF. Furthermore,“in consideration' of direction issued by Hon’ble Court vide-' Judgment order dated 05.02.2018, the service documents including Annual Performance Assessment Report (APAR) of Constable/Driver Rajendra Prasad Dhaka were called from CISF Unit FACT, Udyogmandal and have been taken into account. He has been awarded numerical grading of 6.19 out of 10 in his APAR for the W.P.(C).No.19586/18 5 period from 06.06.2016 to 31.12.2016 and 6.31 out of 10 in his APAR for the period from 01.01.2017 to 31.12.2017. As per guidelines regarding filling up of APAR with Numerical Grading, APAR graded from 6 to 7.9 will be rated as ‘Very Good’. Although Constable/Dvr Rajendra Prasad Dhaka has been assigned grading of ‘Very Good’ in his Annual Performance Assessment Report for the year 2016 and 2017 by the Assistant Commandant, the specific guidelines of Govt. of India envisaged in the MHA Policy and the law laid down by the. Hon’ble Apex Court in Avatar Singh’s.case (supra) cannot be ignored as the petitioner was involved in a grave offence and was merely acquitted by the Court extending benefit of doubt. Further, the APAR grading of the petitioner is based on his actual performance of duties during the specific period only. ' 14. 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 in CISF.” Exhibit P11 termination order was resultantly issued by the 6[th] respondent. 4.The learned counsel for the petitioner submits that the case of the petitioner was not considered in accordance with the W.P.(C).No.19586/18 6 directions contained in the judgment of the Apex Court in Avatar Singh's case. It is contended that the petitioner had disclosed the pendency of the criminal case at the time of his enrollment in CISF and that there was no intention to suppress any material fact from the respondents. It was further submitted that in view of the fact that the petitioner had been acquitted in the criminal case registered against him, the decision in terminating services is completely unwarranted. The learned counsel for the petitioner placed reliance on the decisions of the Apex Court in Union of India and others v. Amit Sigh [Civil Appeal No.18799/2017) and and of this Court in Balagopalan v. State of Kerala [1963 KHC 279], Ramesh Bishnoi v. Union of India and others [W.P.No.1310/2018 of Rajasthan High Court], Azhar Ali v. The Union of India and others [Civil Writ Jurisdiction Case No.13649 of 2017 of Patna High Court] Naveen Kumar v. Union of India and others [ W.P. (C).No.2927/2017 of Delhi High Court] . Tomar v. Union of India and others [W.P.(C).No.1051 of 2014]. Sandeep v. Union of India [W.P.(C).No. 1029/2014 of Delhi High Court]. Liyakat Ali v. Union of India [W.P.(C).No.6549/2017 of Delhi High W.P.(C).No.19586/18 7 Court], Deepa v. Union of India [ W.P.(C).No.1051/2014 of Delhi court] It is also contended that the very same Screening Committee in similar circumstances had directed the continuance in service of similarly situated persons. It is contended that due regard had not been given to the contentions raised by the petitioner before the Screening Committee. 5.A counter affidavit has been placed on record stating that the petitioner's reply to the specific questions in the questionnaire form was not an inadvertent mistake and the petitioner was very well aware that his acquittal was only on the basis of giving him the benefit of doubt, which is the reason why the factum of criminal case was suppressed by him. It was further stated that the petitioner was specifically informed while signing the declaration form that if any material comes to light to show that a false declaration had been made, the provisional employment granted was liable to be forfeited. The report of the 18[th] Special Standing Screening Committee held on 5.9.2017 is produced along with the counter affidavit W.P.(C).No.19586/18 8 and it is contented that all relevant aspects were considered before finding that the petitioner was unsuitable for appointment as constable/driver in the CISF. - 6.The learned CGC place reliance on the decisions of the Apex Court in Union Territory, Chandigarh Administration and others - v. Pradeep Kumar and another [2018 KHC 6006] and State of M.P and others v. Parvez Khan [2014 KHC 4756] and Commissioner of Police, New Delhi and another v. Mahar Singh [2013 KHC 4491]. - 7.I have considered the contentions advanced. It is not in dispute before me that the petitioner was an accused in Crime No.256/2011 registered under Sections 3 and 25 of the Arms Act. The occurrence was on 30.12.2011. By Exhibit P2 judgment dated 22.1.2013, the petitioner was acquitted. Exhibit R5(a) reveals that the Standing Screening Committee has considered the contentions of the petitioner. It was found that Section 25 of the Arms Act is an offence included in the serious offences in the policy guidelines of MHA dated W.P.(C).No.19586/18 9 1.02.2012. It was further found that the candidate while filling up the application for recruitment on 15.7.2014 suppressed the fact of institution of criminal proceedings against him. However he disclosed the fact in a declaration given by him along with the offer of appointment dated 9.11.2015 at the time of joining the Force. The Special Standing Screening Committee considered the charges against the petitioner as well as the judgment in the criminal case and came to the conclusion that the candidate is unsuitable for employment in an Armed Force of the Union like the CISF. Though several decisions have been relied on by the learned counsel for the petitioner, I am of the opinion that the issue is one that requires subjective satisfaction of the appointing authority and once such satisfaction is arrived at, after consideration of all the relevant aspects of the matter, it is not for this Court to interfere with the decision thus taken by the Standing Screening Committee. The appointment is to an Armed Force as a Constable/Driver. In case of appointments to a uniformed service is concerned, a greater adherence to the strict letter of the law is expected. W.P.(C).No.19586/18 10 8.In the instant case, the offence alleged against the petitioner is under the Arms Act. The authorities concerned have consistently found that the acquittal of the petitioner was only on giving him the benefit of doubt. The respondents have considered the factual aspects of the matter and have found that the petitioner is unfit for employment as Driver in the CISF. Once it is contended that the relevant aspects are being taken into account by the respondents, I am of the opinion that it is not open for this Court to assume the role of the appointing authority and to re-examine whether the petitioner is a person fit for the specific employment. There has to be some discretion granted to the appointing authority to arrive at its own conclusion, provided the relevant aspects have to be taken into account. - 9.On a consideration of the facts and circumstances of the instant case, I am inclined to hold the relevant aspects have been examined by the appropriate authorities and it would, therefore, not be appropriate for this Court to enter into a re- W.P.(C).No.19586/18 11 appreciation of the factual aspects of the matter. In the above view of the matter, I am of the opinion that no interference is called for in the decision of the appropriate authority. The writ petition fails and the same is accordingly dismissed. Sd/- **Anu Sivaraman, Judge** sj ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF SHOW CAUSE NOTICE DATED 30.05.2017 EXHIBIT P2 THE TRUE COPY OF JUDGMENT OF THE FIRST CLASS JUDIDICIAL MAGISTRATE,SAMBARLAKE,RAJASTHAN DATED 22.01.2013 EXHIBIT P2(A) TRUE COPY OF ENGLISH TRANSLATION OF JUDGMENT DATED 22.01.2013 OF THE FIRST CLASS JUDICIAL MAGISTRATE,SAMBARLAKE,JAIPUR EXHIBIT P3 TRUE COPY OF QUESTIONNAIRE FORM DATED. EXHIBIT P4 TRUE COPY OF CERTIFICATE OF CHARACTER DATED 01.12.2015 ATTESTED TO BY THE SUB DIVISIONAL MANAGER. EXHIBIT P5 TRUE COPY OF RELEVANT PORTION OF CISF RULES,2001. EXHIBIT P6 TRUE COPY OF REPLY TO SHOW CAUSE NOTICE DATED 28.06.2017 EXHIBIT P7 TRUE COPY OF JUDGMENT IN WRIT PETITION NO.22245 DATED 06.07.2017 EXHIBIT P8 TRUE COPY OF THE ORDER DATED 3.2.2018 ISSUED BY THE 5TH RESPONDENT EXHIBIT P9 TRUE COPY OF JUDGMENT DATED 05.02.2018 IN WP(C)NO.3943 OF 2015 EXHIBIT P10 TRUE COPY OF ORDER DATED 16.05.2018 ISSUED BY THE 1ST RESPONDENT EXHIBIT P11 TRUE COPY OF THE TERMINATION ORDER ISSUED BY THE 5TH RESPONDENT.** True copy PS to Judge