IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11607 of 2008 CHHOTE LAL YADAV, son of Late-Paramhana Yadav, resident of village and P.O.-Bisukiya, P.S.-Garbar, District- Balia(U.P.) ……Petitioner Versus 1. Union Of India through Secretary, Ministry of Home Affairs, New Delhi. 2. Inspector General, Central Industrial Security Force, C.I.S.F. Office Complex, Boring Road, New Patliputra Colony, Patna- 800013. 3. Commandant, CISF Unit, B.C.C.L., Dhanbad(Jharkhand) ……Respondents. ----------- 03. 06.08.2009 The petitioner after due selection was appointed as Constable in the Central Industrial Security Force on 16.01.2006. He was on probation for two years. While on probation, as petitioner was a resident of District Balia in the State of Uttar Pradesh, enquiries about his character were made from the District Magistrate cum Collector, Balia(UP). It appears that the District Magistrate, Balia reported that petitioner was an accused in a F.I.R. lodged on 27.04.2004 being Garwar P.S. Case No. 73 of 2004 under Sections 147/148/323/506 of the Indian Penal Code. On this information being received petitioner was noticed. This was so done because in the declaration made by the petitioner on 02.02.2006 to the CISF, he had declared that there was no criminal case pending against him which 2 declaration was now found prima facie wrong. Petitioner immediately got information through the Collector cum District Magistrate, Balia and filed it before the Authorities. The information which he got and filed before the Authorities is not in dispute. The information was that the said F.I.R. though was lodged on 27.04.2004 inter alia against the petitioner, immediately the police upon investigations filed final report on 30.04.2004 itself in the Court of learned Chief Judicial Magistrate, Balia reporting that the accusation was false and baseless. The case thus for all practical purposes stood terminated. The information further shows that matter was kept pending before the Chief Judicial Magistrate who ultimately accepted the final form by formal orders that were passed on 28.10.2006. Notwithstanding these information, by order dated 01.02.2008(Annexure-4) petitioner was dismissed for suppressing material information while seeking appointment in CISF. That was held to be a contravention of CISF Rule 24(vi). This order was passed by the Commandant, CISF, Dhanbad. Petitioner filed an appeal before the Inspector General, CISF which has its Headquarters at Boring Road, Patna. Petitioner even gave information there 3 that petitioner was never apprehended in the aforesaid case nor warrants were issued against him. All those information were there before the Appellate Authority but the Appellate Authority also dismissed his appeal on 28.06.2008(Annexure-9). The petitioner has thus challenged the appellate order of the Inspector General, CISF, Patna which has affirmed the order of the Commandant, CISF, Dhanbad ordering for dismissal. A counter affidavit has been filed by CISF where the basic facts stated above are not disputed at all. Two grounds have been taken in opposition to the writ petition. Firstly that this Court lacks jurisdiction to entertain the writ petition because the order of termination of petitioner who was permanent resident of Balia was passed by the Commandant, CISF, Dhanbad. Secondly that as per petitioner’s own showing he had failed to make disclosure of a case in which he was an accused and as such had violated Rule 26(iv) of the CISF Rule, 2001. Having heard the parties, with their consent, the writ petition is being disposed of at the stage of Admission itself. First thing one has to keep in mind is 4 petitioner was duly selected for appointment as a General Duty Constable in CISF and had almost completed probationary period. He was just short of completion of probation period when order of dismissal has been passed. Dismissal at this stage is the most extreme punishment that can be given and that too to a person who is just beginning his carrier. Keeping these in mind, let us see what if any is the suppression. Petitioner states that it appears that on 27.04.2004 an F.I.R. was lodged against him which now appears to be nothing but a minor dispute at the time of elections. Petitioner was neither arrested nor warrants taken for his arrest. Within two days police closed the investigations as a false case and filed final form. How was the petitioner know of that case. Even if he knew of that case, he then also knew that the case had been closed by the police finding it to be a false case. Thus seen non mentioning of the said case is really of no consequence much less penal consequence. I say that this was of no consequence because of a very simple reason. If the petitioner was to disclose the same, he would also have to disclose that final form had been submitted closing the case as the case was 5 found to be a false case. Then not disclosing this would not be the concealment of material facts because the consequence of non disclosure thereof does not alter the situation. It is not that had he disclosed all this he would be not entitled to appointment. Therefore, on the facts aforesaid disclosure or non disclosure did not alter the position. At best that was a hyper technical failure on part of petitioner that is if he was aware of the said case. In this regard, I may refer to the judgment of the Apex Court in the case of S.J.S. Business Enterprises(P) Ltd versus State of Bihar and others since reported in 2004(7) SCC 166. There a writ petition was filed before this Court. The Single Bench dismissed the writ petition on the ground that the petitioner had suppressed the facts that for the very same relief a suit had already been filed. That was suppression of material facts. The Letter Patent Appeal was dismissed by Division Bench of this Court on the same very ground. The matter then travelled to the Apex Court. This is what the Apex Court had to say. ………12. The Principal basis on which the Single Judge and the only ground 6 on which the Division Bench of the High Court refused relief to the appellant was because they found that the appellant was guilty of suppression of a material fact viz. the filing of the suit prior to approaching the Court under Article 226 13. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the Court, whatever view the court may have taken……….. In my view, the facts here point otherwise. The F.I.R. was instituted and investigations closed as a false case within two days. No steps were taken to interrogate the petitioner, arrest the petitioner or detain the petitioner then how can it be expected that the petitioner was at all in know of all things and if he did not know of that 7 how could he have made a declaration thereof. Further, when admittedly the investigations were closed in two days holding the case to be false, what would the petitioner have gained by not disclosing it, this Court wonders. Thus on the findings aforesaid, I find that the breach of Rule 26(iv) of the Rules aforesaid if any was only a technical breach. If one may say so, it was neither an intentional breach nor a breach with any consequence. That being so, the extreme punishment of dismissal on such a finding which stands vitiated the matter of law can not be sustained. The impugned orders are thus liable to be set aside and are set aside as such. Coming to the second objection with regard to maintainability of the writ petition before this Court. Suffice to say that this is a submission in desperation. It is not in dispute that the appellate order was passed by the Inspector General, CISF at Patna which is the seat of this Court. Once the appellate order is passed then the original orders merges in the appellate order and what is required to be set aside is the appellate order which is passed within the jurisdiction of this Court. Thus a part of cause of action does arise within the jurisdiction of 8 this Court and by virtue of Article 226(3) of the Constitution, the writ petition is maintainable before this Court. In view of the aforesaid, I have no option but to allow the writ petition setting aside the impugned orders. Petitioner would now be entitled to join and complete his probation and unless he suffers from any other disqualification be treated as a permanent member of the CISF without break, but in the peculiar facts and circumstances aforesaid, for the period he has been out of service, he shall not be paid any remuneration but that period would be counted for continuity of service and other service benefits. Shageer (Navaniti Prasad Singh, J)