IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 15090 of 2009 Date of Decision: March 2, 2010 Arvind Kumar …Petitioner Versus Kendriya Vidyalaya Sangthan and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. H.S. Saini, Advocate, for the petitioner. Mr. R.K. Sharma, Advocate, for respondent Nos. 1 to 3. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? Yes M.M. KUMAR, J. This petition filed under Article 226 of the Constitution challenges order dated 27.8.2009 (P-4) passed by the Central Admin- istrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, ‘the Tribunal’) in OA No. 653/HP/2007, dismissing the Original Applica- tion filed by the petitioner. The petitioner has approached the Tribu- nal for setting aside termination orders dated 2.10.2008 and 10.10.2008 (A-1 and A-2), terminating his services from the post of Trained Graduate Teacher (Maths). Brief facts of the case are that pursuant to an advertise- ment dated 30.9.2006 selection process for filling up various posts of CWP No. 15090 of 2009 Trained Graduate Teachers (TGT), including 230 posts of TGT (Maths) was initiated by the respondents. The petitioner being eligi- ble, having qualified the written test and interview, was issued an of- fer of appointment to join the Kendriya Vidyalaya Sangathan as TGT (Maths), vide memorandum dated 14.9.2007 (A-7). As per condition No. 7 of the letter of appointment, a period of two years has been pre- scribed as probation period, which was to commence from the date of appointment. As per condition No. 8, the services of the petitioner could be terminated during probation period. On 28.9.2007, he joined as TGT (Maths) at Kendriya Vidyalaya No. 2, Adampur. Be- fore joining his duties, he submitted duly filled in Attestation Form regarding his character and antecedents on 20/26.9.2007. On 2.10.2008 (A-1), the Assistant Commissioner-respondent No. 2 passed an order terminating the services of the petitioner without as- signing any reason. The said order was communicated to him vide another order dated 10.10.2008 (A-2) passed by the Principal, K.V. No. 2, Adampur-respondent No. 3. Feeling aggrieved, the petitioner challenged his termina- tion orders dated 2.10.2008 and 10.10.2008 before the Tribunal by filing OA No. 653/HP/2008 (P-1). In response to the notice issued by the Tribunal, the respondents filed their written statement and dis- closed the reason for terminating the services of the petitioner. It was pointed out that the Attestation Form submitted by the petitioner was forwarded to the District Magistrate, District Kangra (H.P.) for verifi- cation vide letter dated 18.2.2008 (R-1). In the report sent by the quarter concerned it was stated that a criminal case FIR No. 147/2006, dated 12.7.2006, under Section 341, 323 and 34 IPC, Po- 2 CWP No. 15090 of 2009 lice Station Dharamshala, was registered by the police against the pe- titioner which was still pending. On receipt of the said report the competent authority was satisfied that the petitioner has withheld the material information and accordingly reached to a conclusion that he was unfit for being an employee of KVS. His services were, thus, ter- minated in terms of condition No. 8 stipulated in the letter of appoint- ment. In the rejoinder to the written statement, the petitioner claimed that he has not concealed any information in the Attestation Form rather correctly answered each and every column. It has been submitted that at the time of filling up the proforma on 20.9.2007, no case was pending against him in any court of law because he was al- ready discharged/acquitted in the aforementioned FIR by the Gram Panchayat, Tangroti, vide order dated 25.6.2007 (A-9) and the case file was closed. Thereafter no proceedings were ever initiated in any Court of law. It has been further highlighted that after registration of the abovesaid FIR against the petitioner and his mother, the investi- gating agency sent the matter for consideration to the Gram Pan- chayat, Tangroti, for intervention, who took the decision dated 25.6.2007, discharging the petitioner and his mother (A-9). In that re- gard, the petitioner has also placed on record the information sought from the police under the Right to Information Act (A-10). The Tribunal, however, dismissed the OA filed by the pe- titioner and reached a conclusion that the petitioner has faced ‘prose- cution’ because an FIR was lodged and he was facing criminal case, which was, however, later on dismissed for non-prosecution before submission of format by him. But he has not given this information. 3 CWP No. 15090 of 2009 According to the Tribunal, had this information was given in the At- testation Form, then it was the discretion of the competent authority either to offer him appointment or reject his candidature. The Tribu- nal has returned a finding against the petitioner that he has suppressed the material information. The Tribunal also found that there was no need to issue any notice to the petitioner before taking action against him because he was still under probation, therefore, principles of natural justice have not been violated. Mr. H.S. Saini, learned counsel for the petitioner has ar- gued that the Tribunal has adopted hyper technical approach, inas- much as, it is influenced by non-disclosure of information sought in para 12(I)(B) and (I) of the Attestation Form. He has further submit- ted that the police has submitted wrong report dated 18.2.2008 (R-1). According to the aforesaid report case FIR No. 147/06, dated 12.7.2006, under Sections 341, 323 and 34 IPC was registered, which is pending. Mr. Saini has pointed out that the report is false because as per the decision of the Gram Panchayat, Tangroti, dated 25.6.2007 (A-9), the matter concerning the aforesaid FIR was filed for non- prosecution because the complainant absented herself on more than one occasion. According to the learned counsel the view of the Tribu- nal with regard to clauses (B) and (I) of Para 12(I) (wrongly men- tioned by the Tribunal as ‘clauses (B) and (J) under para 11’) is also not sustainable because no case was pending against the petitioner on the date of filling up the Attestation Form i.e. 20.9.2007. In support of his submission, learned counsel has placed reliance on two Divi- sion Bench judgments of this Court rendered in the cases of Dinesh 4 CWP No. 15090 of 2009 Kumar v. State of Haryana, 2006 (4) SCT 429 and Dharmender Singh v. Director General of Police, Haryana, 2006 (3) SLR 833. He has also relied upon the observation made by Hon’ble the Su- preme Court in the case of Commissioner of Police, Delhi v. Dhaval Singh, 1999 (4) SCT 732. In order to substantiate his submission, learned counsel has brought to our notice Section 32 of the Himachal Pradesh Panchayati Raj Act, 1994 (Amended up to March, 2006) [for brevity, ‘the 1994 Act’], which provides for offences that could be prosecuted before the Gram Panchayat. According to the learned counsel, Section 32 in terms refers to Schedule III. Item Nos. 18, 20 and 33 of Schedule-III deals with offences under Sections 323, 341 and 406 IPC and accordingly the Gram Panchayat, Tangroti, was a Court of competent jurisdiction to pass order dated 25.6.2007 (A-9). The argument seems to be that there was clearly no necessity to dis- close the aforesaid information because by the time Attestation Form was to be filled neither any prosecution was pending nor the peti- tioner has been ever arrested and his antecedents and character could not be faulted. Mr. R.K. Sharma, learned counsel for respondent Nos. 1 to 3 has, however, argued that a duty is cast on the petitioner and in- formation by clauses (B) and (I) in para 12 of the Attestation Form was sought from him. The information required to be disclosed was whether he has ever been prosecuted to which he has incorrectly re- plied ‘No’. According to clause 12(I)(I) the petitioner was asked to disclose whether there was any case pending against him in any Court of law at the time of filling up the Attestation Form to which he has also replied ‘No’. Mr. Sharma placed reliance on a judgment of 5 CWP No. 15090 of 2009 Hon’ble the Supreme Court rendered in the case of Kendriya Vidya- laya Sangathan v. Ram Ratan Yadav, JT 2003 (2) SC 256. He has drawn our attention to the observations made in paras 6 to 8 of the judgment to emphasis that in case of teacher there is added responsi- bility to disclose every information concerning his antecedents and character, which is the basic object of obtaining completely filled up Attestation Form. Mr. Sharma has pointed out that in the decided case by Hon’ble the Supreme Court, the case pending before the criminal court was under Section 323, 341, 294, 506B read with Sec- tion 34 IPC, although in the present case the proceedings have been concluded without any punishment or indictment of the petitioner. He has, however, submitted that the information solicited from the petitioner was whether he has been ever prosecuted in past and he was bound to disclose the complaint which has been decided by the Gram Panchayat, Tangroti, vide order dated 25.6.2007 (A-9) in the Attestation Form in para 12(I)(I). Having heard learned counsel for the parties at a consid- erable length we are of the considered view that the instant petition deserves to be allowed. The first question which would arise for de- termination of this Court is whether the termination of a probationer like the petitioner can be questioned in the facts and circumstances of the case. The principles of law governing the status of a probationer are well settled. A probationers does not enjoy the right to held the post but still an order terminating the services of a probationer can be made subject matter of judicial review if such an order is arbitrary or punitive. In that regard reliance may be placed on the observations made by Hon’ble the Supreme Court in para 6 of the judgment ren- 6 CWP No. 15090 of 2009 dered in the case of High Court of Judicature at Patna v. Pandey Madan Mohan Prasad Sinha, (1997) 10 SCC 409, which reads thus:- “……The position of a probationer cannot be equated with that of an employee who has been substantively ap- pointed on a post and has a right to hold that post. An order terminating the services of a probationer can be questioned only if it is shown that it has been passed ar- bitrarily or has been passed by way of punishment with- out complying with the requirements of Article 311(2) of the Constitution. Since a probationer has no right to hold the post on which he has been appointed on probation, he cannot claim a right to be heard before an order terminat- ing his services is passed. The obligation to communi- cate the adverse material to a person before taking action against him on the basis of the said material is a facet of the principles of natural justice. But principles of natural justice have no application in the case of termination of the services of a probationer during the period of proba- tion since he has not right to hold the post. ……” Similar observations have been made in the case of Dipti Prakash Banerjee v. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta, (1999) 3 SCC 60, where the whole case law concerning the probationer has been reviewed by Hon’ble the Su- preme Court. Likewise, in the case of V.P. Ahuja v. State of Punjab, (2000)3 SCC 239, following observations have been made in para 7: 7 CWP No. 15090 of 2009 “7. A probationer, like a temporary servant, is also en- titled to certain protection and his services cannot be ter- minated arbitrarily, nor can those services be terminated in a punitive manner without complying with the princi- ples of natural justice.” The question further is whether the order of termination dated 2.10.2008 and 10.10.2008 (A-1 and A-2) are the result of arbi- trary exercise of power or the orders could be considered as bona fide. It has come on record that the orders of termination were passed on the ground that the petitioner failed to disclose that he faced prose- cution in case FIR No. 147/2006, dated 12.7.2006, and that he was facing criminal case, which was, however, later on filed by the Gram Panchayat, Tangroti, for non-prosecution, vide order dated 25.6.2007 (A-9). It may be true that the petitioner did not disclose information regarding registration of case FIR No. 147/2006, dated 12.7.2006 and the order dated 25.6.2007, passed by the Gram Panchayat, Tangroti, shows filing of the complaint made against the petitioner and his mother for non-prosecution (A-9). The Attestation Form was filled by the petitioner on 20.9.2007, which is much later. The information solicited in clauses (B) and (I) in para 12(I) of the Attestation Form are as under:- “12(I) (A) xxx xxx xxx (B) Have you every been prosecuted? Yes/No (C) to (H) xxx xxx xxx (I) Is any case pending against you in Yes/No any Court of Law at the time of filling up this attestation form 8 CWP No. 15090 of 2009 (J) xxx xxx xxx” A perusal of clause 12(I)(B) of the Attestation Form would show that the petitioner was to disclose that if he have ever been prosecuted. The fact with regard to FIR No. 147/2006, dated 12.7.2006 did not travel beyond summoning of the petitioner before the Gram Panchayat, Tangroti, in pursuance to the provisions of Sec- tion 32 of the 1994 Act. The Gram Panchayat, Tangroti, acting as a criminal court did not frame any charge whatsoever against the peti- tioner. It is well settled that no prosecution would commence unless challan is presented or in inquiry the charge sheet is served. In that regard reliance may be placed on the observations made by Hon’ble the Supreme Court in the case of Union of India v. K.V. Jankira- man, (1991) 4 SCC 109, which reads thus: “16. ……the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceed- ings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge- 9 CWP No. 15090 of 2009 memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc., does not impress us. The ac- ceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are se- rious and the authorities are keen in investigating them, ordinarily it would not take much time to collect the rele- vant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. …… 17. There is no doubt that there is a seeming contradic- tion between the two conclusions. But read harmoni- ously, and that is what the Full Bench-has intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the promo- tion etc. cannot be withheld merely because some disci- plinary/criminal proceedings are pending against the em- ployee. To deny the said benefit they must be at the rele- vant time pending at the stage when charge- 10 CWP No. 15090 of 2009 memo/charge-sheet has already been issued to the em- ployee. Thus read, there is no inconsistency in the two conclusions.” There is no dearth of judgments on this issue. Hon’ble the Supreme Court has reiterated, applied and further explained the principles laid down in K.V. Jankiraman’s case (supra) in the sub- sequent judgments in the cases of Union of India v. Kewal Kumar, (1999) 3 SCC 204; Union of India v. Sangram Keshari Nayak, (2007) 6 SCC 704; Coal India Ltd. V. Saroj Kumar Mishra, (2007) 9 SCC 625; and UCO Bank v. Rajinder Lal, (2008) 5 SCC 257. Therefore, it has to be concluded that the petitioner did not sup- press any information because he, in fact, was not prosecuted ever. As a matter of fact, he was discharged at the initial stage because the complainant preferred not to come forward. Likewise, the informa- tion in clause 12(I)(I) of the Attestation Form has been correctly dis- closed by the petitioner because there was no case pending against him in any Court of law at the time of filling up of the Attestation Form. Even otherwise, in cases where a person has been acquit- ted and the information has not been disclosed, the Division Bench of this Court has taken the view that non-disclosure of such an informa- tion would not amount to concealment of facts. In a case where a Constable was acquitted of criminal charge and the information was not revealed in the Attestation Form, this Court regarded it a hyper technical requirement and set aside the order, which was based on the allegation of concealment of fact. In the case of Subhash v. State of Haryana, 1994 (4) SLR 525, this Court has observed as under:- 11 CWP No. 15090 of 2009 “Having heard the learned counsel for the parties and af- ter going through the necessary record I find that the plea taken by the respondents is highly hyper-technical and the writ petition deserves to be allowed. It is not a con- cealment of fact regarding his earlier conviction which can be taken into consideration against an employee and on the basis whereof his appointment can be set aside later on. In the present case, petitioner had only been prosecuted and was acquitted by a competent Criminal Court. It was not necessary for the petitioner to disclose this fact to the respondents at the time of his submitting application for recruitment to the police service. In any case, the fact stands that there is nothing against the peti- tioner on the basis whereof his appointment could be set aside having already been made by order dated 4.9.1989 Annexure P-1. Therefore, the non-disclosure of the in- formation relating to his acquittal in the criminal case is no ground for withholding the appointment of the peti- tioner.” There is another aspect of the matter. It is not the case of the respondents that the work and conduct of the petitioner has every been un-satisfactory. His results have been found to be up to the mark and his work and conduct, in fact, is satisfactory. It is further clear from the perusal of the termination order dated 2.10.2008 (A-1) and 10.10.2008 (A-2) that the termination of the petitioner has not been ordered on the basis of un-satisfactory work and conduct, which could constitute the basis for discharging a probationer. That being the factual position, the aforementioned orders of termination are ar- bitrary and liable to be set aside. The case of the present petitioner is on better footing. It is conceded position on record that he had filled the Attestation Form on 20.9.2007 and on that date no criminal proceedings were pending 12 CWP No. 15090 of 2009 against him. The Gram Panchayat, Tangroti, had already filed the complaint against the petitioner due to non-prosecution, vide order dated 25.6.2007 (A-9). It is because of wrong report dated 18.2.2008 (R-1), sent by the Superintendent of Police, Kangra, that the respon- dents have initiated action against the petitioner. Had the correct re- port been sent by the police the position would have been different. We find no force in the argument raised by Mr. R.K. Sharma, learned counsel for the respondents. The judgment of Hon’ble the Supreme Court in the case of Ram Rattan Yadav (supra) is totally distinguishable. Even as per own saying of Mr. Sharma, in the aforementioned case the criminal proceedings were still pending against the petitioner but in the present case, as explained in the pre- ceding paras, no prosecution as such was initiated which makes this case altogether different. Therefore, we have no hesitation to reject the argument raised by Mr. R.K. Sharma. As a sequel to the above discussion, the instant petition is allowed. The impugned order dated 27.8.2009 (P-4) passed by the Tribunal as well as orders of termination dated 2.10.2008 and 13.10.2008 are quashed. The petitioner is ordered to be reinstated in service. However, he shall be entitled to all benefits except the ar- rears of salary from the date of termination i.e. 13.10.2008 till the date of reinstatement. The petitioner shall report to the Assistant Commissioner, Kendriya Vidyalaya Sangathan, Regional Office, Government Hospital Road, Gandhi Nagar, Jammu-respondent No. 2 on or before 22.3.2010. A copy of the order be given to the learned counsel for the parties on payment of usual charges. 13 CWP No. 15090 of 2009 (M.M. KUMAR) JUDGE (JITENDRA CHAUHAN) March 2, 2010 JUDGE Pkapoor 14