Dismissed

Raj Kumar v. State and Ors.

Rajasthan HC6 Jan 2014CW/2711/1996

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition seeking to quash the cancellation of the petitioner's temporary appointment as a Patrolling Officer. The court held that suppressing material information regarding pending criminal cases and furnishing a wrong address constituted moral turpitude, justifying cancellation without an inquiry.

What did the court decide?

Writ petition dismissed; impugned order of cancellation of appointment upheld.

Raj Kumar Vs State and Ors. — Pension and Retirement Benefits | Rajasthan HC (2014)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR

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S.B. CIVIL WRIT PETITION NO.2711/1996 Raj Kumar Vs. State of Rajasthan & Another

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Writ Petition under Article 226 of the Constitution of India.

Date of Order:

January 6, 2014.

P R E S E N T

HON'BLE MR. JUSTICE P.K. LOHRA, J.

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Mr. Anil Bhandari, for the petitioner

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Mr. Raghvendra Saraswat for Dr. Sachin Acharya, for the respondents.

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BY THE COURT:

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The petitioner has laid the instant writ petition for quashment of order dated 30^th of April 1996 passed by second respondent cancelling his appointment on the post of Patrolling Officer Grade-II.

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The facts apposite for the purpose of this writ petition are that in the year 1994 certain vacancies were available in the Excise Department (Preventive Branch) including the temporary vacancy of Patrolling Officer and the petitioner being eligible submitted his application form. After receiving the application form, the petitioner was

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called for interview and on being declared successful vide order dated 13^th of December 1995, he was offered appointment on purely temporary basis subject to the condition about verification of his character and antecedents and educational qualifications. In the order, it was also stipulated that in the event of non-availability of requisite testimonials showing his educational qualifications and the character certificate, the appointment is liable to be cancelled without any notice.

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Pursuant to the order, the petitioner joined his duties and submitted his requisite testimonials and the character certificate in the office of respondent. Boosting his excellence in various branches of physical education, the petitioner has pleaded in the writ petition that he was awarded All India Gold Medal in Karate thrice and Black-belt SHO–DAAN Award was also conferred on him. Besides winning many awards and medals in Karate, the petitioner has also earned various awards and certificates in NCC and Air Wing. After appointment, as per the version of the petitioner, he was imparted two weeks' training and on successful completion of the training he was entrusted the duties of Patrolling Officer in the month of January 1996. While serving the respondents, the impugned order came into offing whereby the appointment of the petitioner was

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cancelled. The respondents in the order impugned have assigned two reasons for cancellation of his appointment viz., that the petitioner has obtained character certificate from Police Station Amba Mata, Udaipur by furnishing his wrong residential address to the police, and pendency of five criminal cases under various Sections of Indian Penal Code including punishment of reprimand in Case No.121 of 1990. By citing these twin reasons in the impugned order, it was clarified that he has concealed material facts and divulged false information entailing cancellation of his appointment order. The petitioner has very specifically pleaded in his writ petition that all those cases were registered against him during his student life in his prime youth and none of these offences involved moral turpitude. Assailing the action of the respondents, the petitioner has also averred in the writ petition that the residential address, on the strength of which he has obtained character certificate, was rightly furnished by him inasmuch as he was living at that address with his grandmother at the relevant point of time.

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Questioning the impugned order, the petitioner

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has submitted in the writ petition that the order of cancellation of his appointment virtually amounts to termination/dismissal and before passing the said order no

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enquiry under the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 was conducted. The petitioner has also taken shelter of the principles of natural justice for impeaching the impugned order besides some other grounds.

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On behalf of the respondents, reply to the writ petition was submitted and the impugned order was stoutly defended. In the return, the respondents have averred that the petitioner is guilty of giving false information about his residential address and further he has not furnished the requisite information about the pendency of criminal cases against him. According to respondents, on verification it was revealed that the cases were pending against him and the residential address which was furnished by him was not correct and that has necessitated the impugned order cancelling his appointment. As regards, the pending criminal cases against the petitioner, the respondents have pleaded in the reply that some of the offences for which the petitioner was charged were involving moral turpitude. Taking shelter of the terms of the appointment order and the affidavit submitted by the petitioner, the respondents have specifically pleaded in the reply that verification of character and antecedents was a condition precedent for his retention in service and when the said condition was not

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satisfied on verification, it became imperative for the respondents to cancel his appointment, which cannot be categorized as infirm from any stretch of imagination. The plea of the petitioner about conducting enquiry under the Rules of 1958 was also categorically denied on the anvil of terms and conditions incorporated in the appointment order and the affidavit submitted by the petitioner, wherein he has submitted an undertaking that if the requisite testimonials submitted by him for verification of his educational qualifications and the character certificate showing his character and antecedents is not verified, the appointment can be cancelled.

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After submission of reply to the writ petition, a rejoinder was also submitted by the petitioner reiterating his stand which was pleaded in the writ petition.

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Subsequent to the rejoinder, the petitioner has made an attempt to clarify the position in the form of additional submissions. In additional submissions, the petitioner has averred that out of five pending criminal cases one case is wrongly mentioned as the same was decided in the year 1982 itself wherein the petitioner was extended the benefit of probation. While referring to three other criminal cases i.e. 191 of 1990, 149 of 1990 and 430

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of 1994, the petitioner has submitted that all the three cases have been decided by judgments dated 15^th of September 1998, 1^st of September 1997 and 3^rd of April 1998 respectively and in all the cases the petitioner has been acquitted.

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Yet again, the petitioner submitted additional submissions and placed reliance on a communication from District Police Superintendent, Udaipur dated 15^th of March 1996, wherein the Superintendent of Police has mentioned that after 1994 no criminal case or complaint is registered against the petitioner. In the form of additional submissions, the petitioner has placed on record a letter dated 12^th of April 1996, which was addressed by the SHO Police Station Amba Mata, Udaipur to the Addl. Excise Commissioner and judgment dated 6^th of October 1998 wherein the petitioner was acquitted for the offence under Section 420 IPC and other judgments in which the petitioner was acquitted.

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The learned counsel for the petitioner has argued that the impugned order is penal in nature inasmuch as the same has visited the petitioner with evil and civil consequences and the same has been passed in clear violation of principles of natural justice and therefore is not

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sustainable. Learned counsel for the petitioner submits that before passing the said order no notice or opportunity of hearing was afforded to the petitioner and in want of notice and opportunity of hearing the order is nonest in the eye of law. The learned counsel has also urged that before issuance of the impugned order no enquiry under the Rules of 1958 was conducted against him and the appointment order is annuled in a slip-shod manner. Mr. Anil Bhandari, learned counsel for the petitioner would contend that in most of the cases the petitioner has been acquitted and in none of the criminal cases the offences attributed to the petitioner involved moral turpitude, and therefore, the impugned order cannot be sustained. Placing heavy reliance on the material placed on record, learned counsel for the petitioner has argued that the allegation against the petitioner that he has furnished wrong residential address for procuring character certificate has not been established, which itself is sufficient to vitiate the impugned order. Learned counsel for the petitioner has placed reliance on the following judgments in support of his contentions:

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(i) (ii)	Rai Sahab Vs. State of Rajasthan & Anr. [2013(2) RLW 1714 (Raj.)] Commissioner of Police & Ors. Vs. Sandeep Kumar (2011) 4 SCC 644
(iii)	Yogendra Kumar Sharma Vs. State of Rajasthan & Ors. [2010(3) DNJ (Raj.) 1447]
(iv)	Asit Kumar Kar Vs. State of West Bengal & Ors. [JT 2009(1) 654]
(v)	Chanan Ram Vs. IGP Raj, Jaipur & Anr. [2000 (4) WLC (Raj) 432]

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(vi)	Shrawan Kumar Jha & Ors. Vs. Ram Sewak
	Sharma & Ors. [AIR 1991 SC 309]
(vii)	Jagdish Prasad Vs. Sachiv Zila Ganna
	Committee, Muzaffarnagar (AIR 1986 SC 1108)
(viii)	Smt. S.R. Venkataraman Vs. Union of India
	& Anr. (AIR 1979 SC 49).

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Per contra, Mr. Raghvendra Saraswat, learned counsel for the respondents, has argued that the petitioner was offered appointment on the post of Patrolling Officer, which is a duty to be undertaken by an uniformed force, cannot be permitted to eschew the requisite informations for procuring job. According to Mr. Saraswat, the very act of the petitioner in concealing the material information about pendency of criminal cases and wrong mentioning of his residential address is inexcusable, and therefore, there is nothing wrong with the impugned order in the given circumstances. Learned counsel Mr. Saraswat has placed reliance on a latest judgment of Hon'ble Supreme Court in case of Devendra Kumar Vs. State of Uttranchal & Ors. [(2013) 9 SCC 363] . The Hon'ble Supreme Court, in this verdict, has held that suppression of material information itself amounts to moral turpitude and if the services of an incumbent are terminated on that count then the same cannot be faulted. The Hon'ble Apex Court made following observations in this behalf in Para 12 & 13 of the verdict:

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12. So far as the issue of obtaining the appointment by misrepresentation is concerned, it is no more res integra. The question is not whether the applicant is suitable for the post. The pendency of a criminal case/proceeding is different from suppressing the information of such pendency. The case pending against a person might not involve moral turpitude but suppressing of this information itself amounts to moral turpitude. In fact, the information sought by the employer if not disclosed as required, would definitely amount to suppression of material information. In that eventuality, the service becomes liable to be terminated, even if there had been no further trial or the person concerned stood acquitted/discharged.

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13 . It is a settled proposition of law that where an applicant gets an office by misrepresenting the facts or by playing fraud upon the competent authority, such an order cannot be sustained in the eyes of law. "Fraud avoids all judicial acts, ecclesiastical or temporal." (Vide: S.P. Chengalvaraya Naidu (Dead) by L.Rs. v. Jagannath) In Lazarus Estate Ltd. v. Besalay, the Court observed without equivocation that (QB p.712)

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". . . No judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything."

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Learned counsel for the respondent has also placed reliance on a decision of Hon'ble Supreme Court in case of Union of India & Ors. Vs. Bipad Bhanjan Gayen

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[(2008) 11 SCC 314] . Emphasizing higher level of integrity for disciplined forces and ruling out applicability of principles of natural justice when services of an individual is terminated due to his withholding requisite information, the Apex Court made following observations in Para 10 & 13 of

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the verdict:

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10. It bears repetition that what has led to the termination of service of the respondent is not his involvement in the two cases which were then pending, and in which he had been discharged subsequently, but the fact that he had withheld relevant information while filling in the attestation form. We are further of the opinion that an employment as a police officer pre-supposes a higher level of integrity as such a person is expected to uphold the law, and on the contrary, such a service born in deceit and subterfuge cannot be tolerated.

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13. More recently, in R. Radhakrishnan v. Director General of Police it was a case of withholding of relevant information in the application form by a person seeking appointment as a fireman and this is what the Court had to say: (SCC p. 662, para 10)

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“ 10 . Indisputably, the appellant intended to obtain appointment in a uniformed service. The standard expected of a person intended to serve in such a service is different from the one of a person who intended to serve in other services. Application for appointment and the verification roll were both in Hindi as also in English. He, therefore, knew and understood the implication of his statement or omission to disclose a vital information. The fact that in the event such a disclosure had been made, the authority could have verified his character as also suitability of the appointment is not in dispute. It is also not in dispute that the persons who had not made such disclosure and were, thus, similar situated had not been appointed.”

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We find that the observations in the above cited case are fully applicable to the present matter as well. We are of the opinion that it was a deliberate attempt on the part of the respondent to withhold relevant information and it is this omission which has led to the termination of his service during the probation period. The question of any penal consequences or a reading of the principles of natural justice in such a situation cannot be countenanced. The mere fact that the respondent has been subsequently discharged in the criminal cases will not in any way absolve him of his liability

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to have filled in the attestation form correctly and accurately as on the date he had done so. We accordingly allow the appeal, set aside the impugned judgments and dismiss the writ petition.

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The learned counsel has also placed reliance on a

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Full Bench decision of this Court in case of Dharampal

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Singh & 4 Ors. Vs. State of Rajasthan & Ors.[2000 (2)

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WLC (Raj.) 400] . In this verdict, the Full Bench of this Court made following observations in Para 26 of the verdict:

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26. In the light of the facts stated and the discussion made above, we answer the questions 1 to 3 aforementioned as follows:

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That a candidate was prosecuted or subjected to investigation on a criminal charge is a material fact, suppression of which, would entitle an employer to deny employment to a candidate on that ground. 2. That ultimate acquittal of a candidate, who was prosecuted on a criminal charge, would not condone or wash out the consequences of suppression of the fact that he was prosecuted.

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That suppression of material fact itself disentitles a candidate from being appointed in service.

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Learned counsel for the respondents has also placed reliance on a decision of Hon'ble Apex Court in Radhakrishnan Vs. Director General of Police & Ors.

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[(2008) 1 SCC 660] . In this verdict, while considering the denial of appointment to an incumbent to a uniformed

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service on account of furnishing wrong information, the Hon'ble Court upheld the same and made following observations in Para 10 of the verdict:

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10. Indisputably, the appellant intended to obtain appointment in a uniformed service. The standard expected of a person intended to serve in such a service is different from the one of a person who intended to serve in other services. Application for appointment and the verification roll were both in Hindi as also in English. He, therefore, knew and understood the implication of his statement or omission to disclose a vital information. The fact that in the event such a disclosure had been made, the authority could have verified his character as also suitability of the appointment is not in dispute. It is also not in dispute that the persons who had not made such disclosures and were, thus, similarly situated had not been appointed.

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I have heard the learned counsel for the parties

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and perused the material on record.

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On examining the matter in its entirety, it is clearly borne out that the petitioner was offered appointment on temporary basis purportedly under Rule 23 (8) of the Rajasthan Excise Subordinate Service Preventive Branch Rules 1976 (for short, the Rules of 1976) and in the appointment order it was made clear that if the testimonials submitted by the petitioner showing his educational qualifications and character certificate furnished by him

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showing his character and antecedents are not verified properly, it shall entail cancellation of his appointment. The petitioner himself has tendered his undertaking that if anything adverse is found in this regard then his appointment is liable to be cancelled. The respondents while passing the impugned order have spelt out the reasons for cancellation with clarity and precision. The reasons assigned in the order are furnishing of wrong address and not mentioning the fact about pendency of criminal cases. In the application form submitted by the petitioner, which is placed on record by the respondents as Annex.R/2, the petitioner has very candidly denied the fact that any criminal case is pending against him, or he has been convicted for an offence. The recitals in this behalf are clear and unambiguous in Para 8 of Annex.R/2, which reads as under in vernacular:

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vk;k izkFkhZ fdlh ugha QkStnkjh ekeys eqfYte cuk gS ;k fdlh dsl dh ltk ikbZ gSa!

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The judgments on which the learned counsel for the petitioner has placed reliance in support of his various contentions have been examined by me in the light of facts and circumstances of the instant case. The law laid down

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in these judgments cannot render any assistance to the cause of the petitioner for the simple reason that facts herein are clearly distinguishable. In the instant case, the appointment of the petitioner is cancelled due to withholding of information which he was obliged to divulge and the cancellation order was in consonance and conformity with the terms and conditions of the appointment order and the undertaking furnished by the petitioner.

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Admittedly, at the time of submission of this application form, criminal cases were pending against the petitioner and despite being insisted by the department to furnish requisite information in this behalf, the petitioner has suppressed these material facts and has furnished a wrong information by mentioning that no criminal case is pending against him has in fact invited the trouble and therefore in the given circumstances, there cannot be any excuse available to the petitioner to justify his such a serious omission. As a rule of normal prudency, it can be inferred that the requisite information was withheld or concealed by the petitioner for procuring the job. Thus, the dictum of Hon'ble Apex Court in Devendra Kumar Vs. State of Uttranchal & Ors. Clearly clinches the issue in favour of the respondents warranting no interference with the

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impugned order. The petitioner was a member of uniformed force and it was not expected of him to act in such a callous manner and mislead the authorities by furnishing false information. The cancellation of appointment of the petitioner necessitated because of furnishing of erroneous information which in the considered opinion of this Court cannot be be categorized as illegal or infirm under any circumstances.

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The upshot of the above discussion is that the present petition sans merit and the same is accordingly dismissed.

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arora /

Raj Kumar v. State and Ors.

Case brief

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Raj Kumar v. State and Ors.

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