y^ ^s.f' Ir-A^'. ^^ ^^k BSPORE M.P. STAIE ADMim-STRATIVE TRIBUNAL AT JABALPUR ORIGINAL APPLICATION HO -3^-^./'i?9'1 (ORIGINAL APPLICAT.IONUNDER SECTIOM 19 OF THE ADMIHISTRATIVE TRIBUITALS ACT>'t985 ) .— APPLICA'NT ;. RESPO.NDEHTS Bhagwat Ram Sahu . • : S/o. Mukund Ram Sahu, Age@ abGU't.,.42 years. Time Keepe¥,'Kic3.gation Bepartmeati R/o.lalibhata.Mahasamund, pistEictt'RaApur.CHP). ' '• . ' : -Vs- l* The State of Madhya Prade.sh through- Secretary. . Water ResouEees Beparfcment, •Val-IabhBhawan, BtlopaKMP)* - 2. The' Cbief Erigineer, : • . -.' • Banaiaadi Goaawari Basin» • - iteter Resourees .Departaienfe, ::' ' • RalpUr.Bi.strict.Ra.i.ptir ,(ME), ^ : ' 3. The SyperiQtendAng Engineer. Water Resourees Cirele* - - 'Ralpur.Distt.Raipur (HP). ' . '^ \ 4. The Executive EngineeE', .'->»..,...- Kodar Ilroject Division, ' ' ' ^^later. Resbi.irces. Deparlsmeat,:-' !' r ' Mahasamun<3,Distt*Raipur (MP). 5. Tne Sub-D'ivisidnal Office.r* • ' Kodar Left Bank Canal Sub-Division, Xjater', Resoia-rees; Itepartment *:• •" ^.. Mattasamun<3,BistEic«t:,Ralpar (HP'). ' -; ORIGINAL APPLICATION CTNDER SECTXON 19 OE" THE AEMIKfISTRATXVE TSE'BUNALS ACT ,1985 . ; ~ . j.;.-.,.)^J.iIu !• Parti.culars of'tJ-ie'agplieantj - . '- . As detailed aisove in cause title, 2. Partj.culars of febe Responderita; . ^ . ••'•.... As detailed.above ia cause tifcle. 3. Particulars Qf.order against insfcanfc ,, ' ^Eog.i.nal app .I-leatfon is"&e.lng :£ile<3» ; ' • ..(t). Qrder: Hro«: ..;„ . , ., ....^' 1,-'.: .^ .: ;,:;|'^'ri", ,<li)Datei3:'.,;.20.2:»l:997- . -(M^Respem^rrb^No.1^ 1^1^1.': ^^f. mTtirWfta-jir i-,s»Tffljxij-nnwflirjiiir-iiii-rTim'Bririr • HIGH COURT OF CHHATTISGARH, BILASPUR SINGLE BENCH : HON'BLE SHRI MANINDRA MOHAN SHRFVASTAVA.J. Writ Petition (S) No. 1519/2005 PETITIONER Bhagwat Ram Sahu RESPONDENTS Versus The State of Madhya Pradesh (now C.G.) and others ORDER POST ON (.'"MAY, 2010 t&Ya ^^&l"i^e ^^^^' ^»fta [t;l!;iiSttt' / 'fe. ~':t "s'. - 2 - iKJiillNB |K3::lliS8f'Kai The said Attestation Form is placed on record as Annexure R-l along with return of the respondents. The declaration form submitted by the petitioner was sent for verification to the Superintendent of Police, Raipur and a character verification report dated 10.9.1991, signed on 20.8.1991, was received on 24.9.1991 by the Executive Engineer, in which it was stated that against the petitioner, a crime in Criine Number 306/89 alleging commission of offence under Section 6 of the Prevention ofCorrection Act, 1947 and Sections 467, 471, 409 8s 120 B of the IPC was registered and under investigation. It was stated in the said letter that this fact was suppressed while filling column No.12 of the Attestation Form. On 15.11.1991, Executive Engineer sent a memo to the Sub Divisional Officer to inform as to under what circumstances the fact of registration of crime was not mendoned in column No. 12 of the Attestation Form and why the enquiry was not made before sending the said Attestation Form to the office of Executive Engineer. The Superintending Engineer also required the Sub Divisional Officer to inforin present status of the case. A copy of the aforesaid inemo dated 15.11.1991 was also endorsed to the petitioner under endorsement dated 27.11.1991. Petitioner vide his letter dated 27.11.1991, with reference to endorsement dated 27.11.1991, informed that investigation in the Crime No.306/89 is going on for the last 3 years and no action has been taken. He further stated that the information given in column No.12 (a) (b) (c) may be treated as it is. After about 6 years, the impugned order was passed on 20.2.1997 (Annexure A-2) by which the petitioner's services were terminated. The impugned order states that in view of provision contained in Rule 6 (3) of the M.P./C.G. Civil Services (General Condidons of Service) Rules, 1961 (henceforth "the Rules of 1961"} & clause -I of G.A.D. Circular dated 30.6.1993 and ftiji.i.'lsigEiNi' I'^y '• in compliance ofletter dated 10.9.1991 ofDeputy Inspector General of Police, petitioners services are terminated, as his character is obiectionable. 3. The aforesaid order of termination has been challenged by the petitioner by submitting that the impugned order was passed without affording any opportunity of being heard to the petitioner. No enquiry was held against the petitioner before issuing the impugned order nor any explanation was sought. It is submitted that as fhe impugned order of termination is not a termination simplicitor but stigmatic and punitive, it ought to precede an opportunity to meet out the allegation. It is also submitted that the impugned order constitutes violation of fundamental right under Article 14 as also violative of Article 311 of the Constitution of India. Leamed counsel for the petitioner further argued that a perusal of relevant column No.12 (a) (b) (c) of the Attestation Form (Annexure R-l) would show that the petitioner did not give any false inforraation nor suppressed any inforination which was required to be disclosed. It is strenuously argued that there was no clause requiring the petitioner to divulge any information with regard to registration of crime in any police station. Therefore the petitioner had bonafide disclosed whatever infonnation which were required to be submitted under clause 12 (a) (b) (c). It is submitted that petitioner was neither arrested nor prosecuted nor kept under detention or bound down/fined, convicted by a Court of law nor debarred/disqualified by any Public Service Commission from appearing at its examination/selections or debarred from taking any examination/restricted by any University or any other Educational Authority/Institudons. The information submitted by the petitioner as lllilW-i •dilr]lifl|@K;-3.-,,-35^^,. ^-€\ yi^^. ^ •i^S,^ J /f -!;,;i'yy '"^ssss'"' -4- ^ ||t,i::l>!'S*!!! No against the aforesaid requireraent of details of information sought under clause 12 (a) was, therefore, not in any manner either incorrect or false information or suppression of any material fact. It is also argued that what clause 12 (b) required was about the information if any case was pending in any Court of law, University or any other Education Authority/Insdtution at the time of filling-up Attestation Form. Against this column also, petidoner stated "No". According to the petitioner as there was no case pending against him in any Court of law, University, or any other Educational Authority, Institutions at the time of filling-up attestation form, it could not be said that the pedtioner subruitted any false information or suppressed any information sought for. 4. Contention of learned counsel for the petidoner is that merely because a crime has been registered, it could not be said that petitioner was prosecuted, as till the date of iilling and submitting Attestation Form, no charge sheet was filed in any criminal Court, much less any cognizance taken by a criminal Court. Further contention of learned counsel for the petitioner is that mere registration of a crime, does not araount to pendency of case in any Court of law. As there was no specific clause requiring the petitioner to submit information with regard to registration of any criminal case in any police station, there was no occasion for the petitioner to mention about the same. Therefore, it could not be said that the pedtioner was either guilty of submitting any incorrect or false information or suppressing any material information. In support of his contention, learned counsel for -5- j^j:.it?F1 the petitioner has placed reliance upon the decision of Supreme Court in fhe case ofKainal N^yau Mishra Vs. State ofM.P. fiB Ors.1 . 5. Leamed counsel for the petitioner has also stated that petidoner had worked in the Department froin 1974. It is also argued that even though the information that a crime was registered, was available with the respondents way back in the year 1991, as informed by a letter dated 10.9.1991 (Annexure R-2) of the Deputy Inspector General, no action was taken for almost 6 years and petitioner's services were terminated in the year 1997. Learned counsel for the petitioner submits that while working as Timekeeper in the work-charged establishment, petitioner was entitled to not only protection of Article 311 (2) of the Constitution of India but also protection against any termination under provision of Work-Charged and Contingency Establishment Rules, 1975 (henceforth "the Rules of 1975"). Rule 14 thereof obliges respondents to give notice and hold an enquiry, without which petitioner's services could not be terininated. It is also submitted that the reason for tern'iination is arbitrary as it is not based on the ground that the petitioner suppressed any inforrnation while filling the Attestation Form or that he submitted any incorrect/false information, but on the ground that the character of the petitioner was objecdonable. It was not open for the respondents to terminate the services of the petitioner after almost 6 years of his appointaiient in the work-charged establishment, on the ground that his character was objectionable, without affording due and proper opportunity of hearing to the petitioner. The last submission of leamed counsel for the petitioner is that the petitioner was eraployed as Timekeeper, a low (2010) 2 SCC 169 |ti[I.IBiN'B Ml,t11^*eis lllli paid employee, way back in the year 1974. He was rustic villager, resident of village Panduka of Tahsil-Gariyaband. He was higher secondary pass and not highly educated. In the absence of specific clause requiring the pedtioner to disclose registration of a criminal case in any police station, it could not be expected from the petitioner to give all these information. 6. Per contra, submission of learned counsel for fhe respondents is that the Attestation Form required the petitioner to disclose registration of crime in police stadon, if any. Though there was no specific clause in the attestation form, considering the totality of various information contained in clause 12 (a) (b) (c), petitioner in all faimess ought to have disclosed that a criminal case was registered against hiin in the police station. It is also argued that the petitioner was appointed as work- charge Timekeeper in the Work-Charge establishment and the appointanent order clearly stated that the services of the petitioner were temporary and could be terminated any tiine by giving a month's notice. It is also contended on behalf of the respondents that once it was disclosed that a criminal case was registered against the petidorier in the police station, authorities found the pedtioner unsuitable for continuance in service and his character objectionable, leading to termination by impugned order dated 20.2.1997. Learned counsel for the respondents placed reliance on the judgments of the Supreme Court in the cases of Union of India and pthers Vs. Bipad Bhanjan Gayen2 8s R. Radhakrlshnan Vs. Director General of Polic^ & Qrs.3 7. I have heard leamed counsel for the parties and perusalthe records. 2 2008 AIR SCW 4058 32007AIRSCW7595 -7- »it3-li!«t^ 8. From the facts which are not disputed, it is found that fhe petitioner was initially appointed on daily wage in the year 1974 and while eontinuing in that capacity, he was substantively appointed on the post of Timekeeper upon scrutiny of his educational qualification seniority ete. The averment made in para 6.1 of the petition that in view of perforinance and clean record, petidoner was appointed as Timekeeper, has not been disputed by the respondents in their return. It is therefore apparent that the case of the petidoner was scrutinized by the Scrutiny Committee and finding hira suitable on the basis of his performance and clean record, seniority and educational qualification etc., he was appointed on the post of Timekeeper in work-charged establishment. The appointaiient order states that the appointment is temporary and in case of any anomaly with regard to his seniority or educadonal qualifications, his services could be terminated. Clause 4 of the terms and conditions of the appointment stipulated that at the time of assumption of charge, dully filled-in attestation form of character will be required to be submitted before the concemed officer. The petitioner was not a probationer and no such condition is sdpulated in the order of his appointment. Respondents have placed on record the attestation form lilled-in by the petitioner after his appointment as Annexure R-l along with their retum. Clause 12 (a) (b) (c) of the Attestation Form being relevant are reproduced herein below: "12. (a) Have you ever been arrested, prosecuted, kept under detention or bound down/ fined, convicted by a Court of law for any offence, or debarred/disqualified by any public service commission, from appearing at its examinadons/selecdons, or debarred from taking any examination/restricted by any university or any other educational authority/Institutions. -8- .•.E^ll ItffSSKlt" (b) If any case pending against you in any court of law, University or any other educational authority, Institution at the time of filling up this attestation- form? (c) If the answers to (a) of (b) is 'Yes' fill particulars of the case, arrest, detention, fine, conviction, sentence etc, and the nature of the case pending in the court/university/educational authority etc. at the time of filling up this form, should be given." 9. From the Attestation Forin as filled-up by the petitioner, it is found that against inforraation required in Clause 12 (a), petitioner stated "No". With regard to information sought in Clause 12 (b) also, petitioner stated "No". A perusal of query under Clause (a) would reveal that it required the petitioner to disclose whether he was ever arrested, prosecuted, kept under detention or bound down, convicted, by a Court of law for any offence or debarred/disqualified by an Public Service Commission from appearing at its examination/selection, or debarred from taking any examination/restricted by any university or any other educational authority/institution. The other query was whether any case is pending against the petitioner in any Court of law, University or any other educational authority/Institution at the time of filling up the Attestation Form. Clause 12 (c) required the petitioner to give particulars in case answer to sub-clause (a) or (b) is Yes". None of the queries under sub-clause (a) or (b) related to registration of criminal -case alone. As such, it could not be said that the pedtioner either gave any false infonnation or suppressed any information specifically asked for under Clause 12 (a) & (b). A letter dated 5th January, 1991 was sent by the Execudve Engineer to the Deputy Inspector General of Police requiring information, in 's~!'~!s^.. ^a'"'"^ "s "^ %. ^i^. ^ '"ss ,' 9 J r'^iif ''.^•f'" -9- response to which, meino was sent on 10.9.1991 (Annexure R-2) by the Dy. Inspector General of Police to the Executive Engineer stating that a crime in Crime No.306/89 alleging commission of offence under Section 6 of the Prevention of Corrupdon Act, 1947 and Sections 467, 471, 409 & 120 B of the IPC was registered. It was further stated that the fact of registration of a criminal case was suppressed while giving information under Clause 12 of the Attestation Fonn, which is objectionable according to warning contained in the form and character verification order of the Government and on this basis pedtioner is not suitable for government service. Thereafter, the Executive Engineer, vide his Memo dated 15.11.1991 (Annexure R-4) addressed to the Sub Divisional Officer required the Sub-Divisional Offieer to state as to under what circustnaces the fact relating to pendency of a criminal case was not disclosed and why the naatter was not enquired before sending the Attestation Form and why the same was sent belatedly. The Executive Engineer also required Sub-Divisional Officer to state as to what is the status of the case so that the information could be sent to the Superintending Engineer. A copy of that letter was endorsed to the petitioner vide endorsement dated 27.11.1991, in response to which, the petitioner submitted on 27.11.1991 itself that upon registration of a criminal case, invesdgation is going on and no development has taken place for 3 years. Petitioner reiterated that the information given by him in Clause 12 (a) (b) (c) be treated as it is. 10. From perusal of the aforesaid documents and pleadings of the parties, this Court reaches to the conclusion that the petitioner neither gave any false informadon nor suppressed any information as was sought under various clauses of the aforesaid form including sub-clause (a) (b) -10- 86 (c). Though respondents required the pedtioner to fill-in Attestation Form under which petitioner was required to disclose information as sought under various clauses, respondents in their wisdom did not consider it necessary to seek specific information regarding mere registration of criminal case. Apart from the Attestation Forin (Annexure R-l) respondents have failed to place on record any other rules/regulations guidelines/instructions of the Governinent, coramunicated to the pedtioner during the period of his selecdon appointment and till the filling of Attestation Form, which required the pedtioner to specifically inforn'i with regard to inere registration of crime alleging commission of offence. The stand of the respondents in the return is that by stating "No" against Clause 12 (a) petitioner conveyed that no case was registered against hira and therefore the petitioner suppressed the fact regarding registration of Crime No.306/89. Such a contention of the respondents deserves to be rejected. As there was no speciHc clause in the Attestation Form, contained in Clause 12 (a) or (b) requiring the petitioner to furnish information regarding mere registration of crime by the police, it could not be said that in adding such information even though not asked, the petitioner suppressed the said information. Had the respondents required the petitioner to disclose whether any crime was registered against him in any police station and then also the petitioner would not have disclosed it, it could perhaps be said that petitioner suppressed information. On the other hand, information required to be furnished was whether petitioner was ever arrested, prosecuted, under detention or bound down/fined, convicted by a Court of law for any offence etc. Mere registration of a crime in police station could not lead to inference that petitioner was prosecuted as there is no material on record to -11- show that challan was ever filed in the Court and the petitioner was prosecuted. It is not even a case of the respondents that pedtioner was arrested. Even it is not a case of respondents that the petitioner was ever bound down/fined or convicted by a Court of law for any offence. Moreover, registration of a crime in a police station would not amount to saying that case is pending in any Court of law. Thus, it could not be said that the petitioner gave any false information or suppressed any information. If in the opinion of respondents, niere registration of a crime in police station was relevant to judge the suitability either for appointment or for continuance in service, it was always open for the respondents to also mention while seeking information as to whefher any criminal case was registered in any police stadon. Having not sought any such information, petitioner could not be expected to write anything except "No" against information sought under Clause 12 (a) 8s (b). As situations stated in Clauses 12 (a) 8s (b) did not exist in the case of the petitioner, there was no occasion for the petitioner to give further particulars as required under Clause 12 (c). 11. From the impugned order dated 20.2.1997, it is revealed that the respondents terminated the services of the petitioner, after 8 years, stating that in view of provision contained in the Rules of 1961, Circular dated 30U1 June, 1993 and memo dated 10.9.1991 of Dy. Inspector General of Police, petitioner's character was found to be "bbjectionable leading to termination of his service. Rule 6 (3) of the Rules of 1961 envisages that no candidate shall be eligible for appointment to a service or post if, after such enquiry as may be considered necessaiy, the appointing authority is satisfied that the employee is not suitable in any respect for service or post. Sub-rule (4) -12- ^/ ofRule 6 ofthe Rules of 1961 further stipulates that no candidate shall be liable for appointment to a service or post, who has been convicted of an offence against woman provided that where such cases are pending in a Court against the candidate, his case for appointment shall be kept pending dll the final decision of the criininal case. A conjoint reading of the aforesaid provision would show that though conviction in a case of a particular offence has been treated as a disqualification, there is no specific provision so as to make a person ineligible on inere registration of a criminal case in a police station. However, in view of the provision contained in Rule 6 (3) of the Rules of 1961, it was open for the appointing authority to enquire about suitability in all respect for service or post. However, such exercise is required to be made before appointment to a service or post. Present is not a case where the petidoner was appointed as a probadoner. The contents ofmemo dated 10.9.1991 show that the Dy. Inspector General of Police opined that the pedtioner suppressed inforination under Clause 12 of the Attestation Forni which is clearly erroneous. On such an erroneous assumption, it has also been recorded that this act of the petitioner is objectionable in view of the warring contained in the Attestafion Form and character verification orders of the Government. A perusal of "Warning^ in the beginning of the Attestation Forra reveals as under: Warning- The furnishing of false information or suppression of any factual information in the attestation form would be a disqualification and is likely to render the candidate unfit for employment under the Governaient. -13- |p:M^t?!i> 2. If detained, convicted, debarred etc., subsequent to the coaipletion and submission of this form, the details should be communicated immediately to the State Public Service Commission or the authority to whom the attestation form has been sent earlier as the case may be failing which it will be deemed to be a suppression of factual information. 3. If the fact that false informadon has been furnished or that there has been suppression of any factual inforruation in the attestation form comes to notice at any tiine during the service of a person, his service would be liable to be terminated." 12. A perusal of the aforesaid warring would show that in the present case it cannot be said that the petitioner furnished any false information or suppressed any factual informadon in the Attestation Form. It is also not a case that subsequent to completion and attestation of the form, pedtioner was either detained, convicted or debarred and such detail was not communicated immediately to the competent authority before whom the Attestation Form was submitted so as to hold that it amounted to suppression of factual information. Respondents have not placed on record any order of the Government relating to character verification. Thus the opinion of the Dy. Inspector General of Police that the petitioner's act was objectionable, which in fact was made basis to terminate his services as stated in the impugned order of . termination, was completely erroneous and misdirected as the saine was based on erroneous assumption of fact that though the petitioner was required to disclose information with regard to mere registration of crime in police stadon, petitioner suppressed that information. -14- i;.^;{!:1"^'1 13. A perusal of the impugned order shows that the Superintending Engineer acted mechanically on such opinion of Dy. Inspector General of Police, who stated that the character of the petitioner was objectionable and on that basis terminated his service. The impugned order is, therefore, clearly arbitrary and irrational. It is not a case of simplicitor termination. The recital in the impugned order that the character of the petitioner was objectionable cast stigma. From the perusal of the averments made in the retum also, it is clear that the respondents penalized the petitioner by terminating his services on the ground that his character was objectionable as he suppressed inforniation as sought in the Attestation Form. In the circumstances, it was incunibent on the part of respondents to have given the petitioner, an opportunity of hearing and seek his explanation before coming to the conclusion that character of the petitioner was objectionable. It may be emphasised that the basis for terniination of service was a conclusion that as the pedtioner did not disclose of a crime in Police Station, it amounted to objectionable act reflecting upon the character of the petitioner. The order does not say that registration of a crirainal case rendered the petitioner