Allowed

Yallappa S/O Malakappa Nayak v. the Union of India

Karnataka HC6 Dec 2022WP/146507/2020

Case brief

AI extract

What is this about?

The High Court quashed the termination order against a Border Roads Organisation driver who failed to disclose a pending criminal case. The court held that the offence was trivial, involving only a fine and plea-bargaining. The petitioner was reinstated with notional benefits but no back wages under the 'no work, no pay' principle.

What did the court decide?

Writ allowed; impugned order quashed; petitioner reinstated with notional benefits; back wages not granted.

Yallappa S/O Malakappa Nayak Vs the Union of India — Service and Employment | Karnataka HC (2022)

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WP No. 146507 of 2020

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 6^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR WRIT PETITION NO. 146507 OF 2020 (S-DIS)

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BETWEEN:

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YALLAPPA S/O MALAKAPPA NAYAK AGE: 27 YEARS, OCC: DRIVER MECHANICAL TRANSPORT (OG), 592 (I) TPT PI, GS 197676Y, BORDER ROAD ORGANIZATION, PIN: 930593, C/O: 56 APO. (UNDER ORDERS OF TERMINATION) R/O: AT POST: KANAGAON B.K., TQ and DIST: BELAGAVI-590016.

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…PETITIONER

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(BY SRI. VITTHAL S TELI, ADVOCATE)

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AND:

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K M SOMASHEKAR

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Digitally signed by K M SOMASHEKAR Location: High court of Karnataka, Dharwad Bench, Dharwad

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THE UNION OF INDIA REP. BY DEFENCE SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI-110001.

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THE DIRECTOR GENERAL BR/EG2, HEADQUARTERS, SEEMA SADAK BHAWAN, RING ROAD, DELHI CANTONMENT, NEW DELHI-110001.

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WP No. 146507 of 2020

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THE COMMANDER 50 BORDER ROADS, TASK FORCE HIMANK (LEH), PIN: 930050. C/O 56 APOA

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…RESPONDENTS

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(BY SRI. M B KANAVI FOR R1-R3.,ADVOCATE)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI OR DIRECTION OR ORDER QUASHING THE ORDER OF TERMINATION BEARING NO.1512/Termination/YN/14/E1 DATED 30.10.2018 PASSED BY RESPONDENT NO.3 VIDE ANNEXURE-"E" AND CONSQUENTLY DIRECT THE RESPONDENTS TO REINSTATE INTO SERVICE WITH BACK WAGES AND WITH ALL CONSEQUENTIAL BENEFITS.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner in pursuance of the notification issued

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inviting applications from the eligible candidates for appointment to the vacant post of driver submitted an application with the 3^rd respondent to consider the case for appointment to the post of driver. The petitioner who was found to be qualified and suitable to the post of driver was appointed. Thereafter the 3^rd respondent passed an order terminating the petitioner from service by invoking sub-Rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 (for short `Rules, 1965’) stating that the petitioner

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WP No. 146507 of 2020

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has not disclosed the criminal case registered against him. Taking exception to the same, this writ petition is filed.

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The learned counsel appearing for the petitioner submits that as on the date of application submitted by the petitioner, the charge sheet was not laid against the petitioner for the offences punishable under Sections 279 and 338 of IPC and the cognizable was taken only after the petitioner submitted an application for appointment to the post of driver. He further submits that the pendency of the criminal case during the verification was not disclosed due to bonafide reason and the same was not intentional. Hence, having regard to the fact that the criminal case against the petitioner was trivial in nature and also the petitioner having been found to be suitable for appointment to the post of driver, the impugned order passed by the 3^rd respondent is not sustainable in law. In support, he places reliance on the decision of the Hon’ble Supreme Court in the case of Pawan Kumar –vs- Union of India and another (AIR 2022 SC 2829).

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On the other hand, the learned counsel appearing

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for the respondents submits that the petitioner having not

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disclosed the criminal case pending against him is not entitled for appointment to the post of driver as specified under subRule (1) of Rule 5 of the CCS Rules, 1965. Hence, he submits that the impugned order of termination is strictly in accordance with law and does not warrant any interference.

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I have examined the submissions of the learned

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counsel appearing for the parties.

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As on the date when the petitioner submitted the application for appointment to the post of driver, the cognizance for the offences punishable under Sections 279 and 338 of IPC was not taken and thereafter the cognizance was taken. However, the petitioner was under an obligation to disclose the pendency of the criminal case against him at the time of verification and having not done, has suppressed the pendency of criminal case against him. Rule 52 of the Rules 1965 reads thus:

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“52.1 As soon as a recruit is selected but before he is formally appointed to the Force, his character and antecedents shall be got verified in accordance with the procedure prescribed by the Central Government from time to time.”

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WP No. 146507 of 2020

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The Hon’ble Supreme Court in case of Pawan Kumar

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(supra) at paras-17 and 18 has held as follows:

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“17. Adverting to the facts of the instant case, at the time of attestation form filled by the appellant, criminal case was already registered against him but it may be noticed that at the very threshold, the complainant filed his affidavit that the complaint on which FIR came to be registered was due to misunderstanding and he did not want to pursue his case any future, but still charge-sheet came to be filed and on the first date of hearing, the alleged victim PW.1 did not support case of the prosecution and thus the order of clean acquittal came to be passed by the learned Judge of competent jurisdiction by judgment dated 12^th August, 2011.

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The criminal case indeed was of trivial nature and the nature of post and nature of duties to be discharged by the recruit has never been looked into by the competent authority while examining the overall suitability of the incumbent keeping in view Rule 52 of Rules 1987 to become a member of the force. Taking into consideration the exposition expressed by this Court in Avtar Singh(supra), in our considered view the order of discharge passed by the competent authority dated 24^th April, 2015 is not sustainable and in sequel thereto the judgment passed by the Division Bench of High Court of Delhi does not hold good and deserves to be set aside.”

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The Hon’ble Supreme Court in the case of Pawan

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Kumar –vs- State of Haryana and another ((1996) 4 SCC 17 at para-14 has held as follows:

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“14. Before concluding this judgment we hereby draw the attention of parliament to step in

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and perceive the large many cases which per law and public policy are tried summarily, involving thousands and thousands of people throughout the country appearing before summary courts and paying small amounts of fine, more often than not, as a measure of plea-bargaining. Foremost among them being traffic, municipal and other petty offences under the Indian Penal Code, mostly committed by the young and/or the inexperienced. The cruel result of a conviction of that kind and a fine of payment of a paltry sum on plea-bargaining is the end of the career, future or present, as the case may be, of that young and/or inexperienced person, putting a blast to his life and his dreams. Life is too precious to be staked over a petty incident like this. Immediate remedial measures are therefore necessary in raising the toleration limits with regard to petty offences especially when tried summarily. Provision need be made that punishment of fine up to a certain limit, say up to Rs.2000 or so, on a summary/ordinary conviction shall not be treated as conviction at all for any purpose and all the more for entry into and retention in government service. This can brook no delay, whatsoever.”

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The petitioner pleaded guilty and paid a fine of

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Rs.1,500/- and is not a conviction for the offence involving moral turpitude.

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In view of the ratio enunciated by the Hon’ble Supreme Court in the aforesaid cases, the petitioner having been found to be suitable for appointment to the post of driver cannot be deprived of the appointment, merely because he has not disclosed the criminal case against him, which is trivial in

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nature and by depriving the appointment to the petitioner, it would end the career of the petitioner depriving him of his only source of livelihood. Accordingly, I pass the following:

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ORDER

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i) Writ petition is allowed.

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ii) The impugned order dated 30.10.2018 passed by

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the 3^rd respondent vide Annexure-E is hereby quashed.

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iii) The respondents are hereby directed to reinstate the petitioner into service with all notional benefits flowing from the order of reinstatement, however, without back wages by applying the principle of `no work – no pay’.

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iv) The said exercise shall be completed within a period of two months from the date of receipt of certified copy of this order.

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Sd/JUDGE

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BKM

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List No.: 1 Sl No.: 71

Yallappa S/O Malakappa Nayak v. the Union of India

Case brief

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Yallappa S/O Malakappa Nayak v. the Union of India

Case brief

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