1. By virtue of this OA applicant has assailed an order passed by the respondents on 29.8.2005, whereby in pursuance of Sub Rule (1) of Rule 5 of the CCS (Temporary Service) Rules, 1965, on expiry of period of notice of one month, services of applicant shall stand terminated.
3. Brief factual matrix in this case is that in pursuance of an advertisement for recruitment to the post of Grade-II of DASS applicant made an application and after the examination conducted by the Delhi Subordinate Services Selection Board (DSSSB, for short) in November, 2000 a memorandum dated 17.6.2004 was served upon applicant from the office of Medical Superintendent, Loknayak Hospital, Government of National Capital Territory of Delhi (NCT Delhi), asking him to submit his testimonials. Immediately thereafter, applicant was served with a memorandum dated 5.8.2004, an offer of appointment, where he was appointed to a temporary post of Grade-II of DASS, Head Clerk, in the pay scale of Rs. 5000-8000 subject to his being declared medically fit and on verification of his character and antecedents.
4. Applicant in pursuance thereof vide his letter dated 12.8.2004 accepted the offer of appointment and also submitted dully filled in attestation form wherein column 13(b) he had disclosed voluntarily the fact of registration of FIR No. 275/2001 under Section 427/452/ 34 IPC, which is pending trial at charge stage before the Metropolitan Magistrate, Tis Hazari Courts, Delhi.
5. Applicant thereafter was nominated for appointment to the post and was medically examined on 17.8.2004. Thereupon, being declared medically fit he joined the post on 19.8.2004 and started performing his duties. However, as he has not been allowed to join after some time and was not paid salary, a representation preferred followed by memorandum dated 6.12,2004, whereby he has been asked not to mark the presence in the attendance register, as subsequent receipt of adverse character from the police authorities a decision was taken by the competent authority to seek clarification from the Services Department.
6. Being aggrieved with the aforesaid applicant preferred OA-2953/2004 before the Tribunal challenging the aforesaid memorandum. By an order dated 4.7.2005, quashing the order Tribunal directed respondents to allow applicant to join and to pay him salary.
7. By an order dated 29.8.2005 applicant was issued a notice of termination but in the same order retrospectively he was taken on the department w.e.f. 19.8.2004 till 7.12.2004 and DDO has been directed to disburse pay and allowances to applicant.
8. Learned Counsel of applicant Mr. Harpreet Singh stated that once applicant has himself disclosed his false involvement in the criminal case, in which a decision is yet to be taken, he cannot be held either guilty of the charge or any adverse inference as to his morality or unsatisfactory conduct prior to enrolment in Government service can be drawn. A reliance has been placed on the decision of the Apex Court in Commissioner of Police, Delhi v. Dhaval Singh 9. Learned Counsel would contend that the only ground to dispense with the services is not suppression of the information but violation of Clause (d) of the terms and conditions of appointment and verification of antecedents which arc not satisfactory as applicant who is involved in a criminal case if convicted could attract imprisonment period ranging from 2 to 7 years and in that conspectus it was found that applicant would not be a fit person to be appointed. Learned Counsel would contend that no reasonable opportunity to show cause in compliance of the principles of natural justice has been afforded.
10. Mr. Singh stated that on mere involvement in a criminal case appointment cannot be denied and as the condition for appointment is declaration of applicant being medically fit, there is no condition of verification being satisfactory. Learned Counsel stated that merely on the basis of FIR one cannot be held guilty of the charge and has relied upon the decision of the Single Bench of the Rajas than High Court in Brijendra Singh Meena v. State of Rajasthan and Ors. 1997(7) SLR 655 and also a decision of the Jammu and Kashmir High Court in Baraf Singh v. State of Jammu and Kashmir 2001 (6) SLR 650 to contend that denial of appointment on pending criminal case is not justifiable.
11. On the other hand, learned Counsel of respondents vehemently opposed the contentions and relied upon the decision of the Apex Court in State of M.P. v. Ramashanker Raghuvanshi and Anr.
to contend that the police report on verification of the antecedents is to see the character of a candidate and his suitability vis-a-vis his involvement in criminal or subversive activities. Another reliance has been placed on a decision of the Kerala High Court in K. Sadanandan v.The State of Kerala to contend that it is the discretion of the Appointing Authority to see that a fit person enters into the Government employment which is based on character and antecedents and circumstances prevailing should be taken into consideration.
12. Learned Counsel has relied upon the decision of the Apex Court in Delhi Administration v. Sushil Kumar , to contend that the Appointing Authority is empowered at his discretion to appoint the fittest man in suitability as member of the service.
13. Learned Counsel would contend that the conduct of applicant clearly shows that he had suppressed the relevant information as after the memorandum offering appointment applicant accepted it on 12.8.2004 where he has signed an undertaking to have annexed all documents which included attestation form, yet disclosure in the attestation form which is attested by a gazetted officer when applicant has given the fact of criminal case pending against him is dated 12.8.2004, yet this has been submitted on 24.8.2004 and by showing the record it is stated that this has been entered in the diary and was sent for verification on the next date. This according to respondents is an after thought as the fax regarding pendency of criminal case were received on 20.8.2004 and thereupon applicant cooked up this defence, which shows his bent of mind.
14. As regards mala fides alleged against respondent No. 2 it is stated that applicant has not impleaded the concerned person, as such the same cannot be established or even entertained.
15. In the rejoinder, learned Counsel of applicant contended that the ground of suppression is not a ground for termination and moreover the fact remains that applicant had disclosed the pendency of the criminal case, yet even after attestation form was submitted on 28.4.2004, verification report was received on 27.9.2004 and when applicant had claimed salary an action has been taken by respondents. He also states that in case respondents do not want applicant to be appointed why he was allowed to join.
16. I have carefully considered the rival contentions of the parties and perused the material on record.
17. There is no denial from the fact that in Government service it is expected that the persons having their character above board, free from any moral stigma, are to be inducted. Verification of character and antecedents is a condition precedent for appointment to a Government service.
18. Our criminal justice is founded on the Code of Criminal Procedure, Indian Penal Code and Evidence Act to lay norms for admissibility of evidence. Registration of criminal case against a person remains as an accusation of crime or an offence till on conviction it culminates into a certainty to guilt of a Government servant and on acquittal one is obliterated of all the allegations. In State of Gujamt and Anr. v.Suryakant Chunilal Shah 1999(1) SCC 529 : 1999(2) SLJ 28 (SC) as regards involvement in criminal case on the basis of an FIR the following observation has been made: The involvement of a person in criminal case does not mean that he is 'guilty'. He is still to be tried in Court of law and the truth has to be found out ultimately by the Court where the prosecution is ultimately conducted.
19. Unless a person is held guilty by conviction in a trial held by the Court the presumption of his innocence has to be construed. A Division Bench of this Tribunal while dealing with a situation where on involvement in a criminal case appointment to the Government service has been denied in Girish Bhardwaj v. Union of India 1989(4) SLJ 945 (CAT), wherein the following has been held: 8. The Government of India, Ministry of Personnel, Public Grievances and Pensions have laid down the guidelines for verification of character and antecedents. Though this is stated to be a secret document and "for official are only", the applicant has produced Photostat copies of extracts from the said guidelines (Vide Annexure P-6, pages 43 to 46 of the Paper Book). The respondents have not denied the existence of such guidelines in their counter-affidavit.
In our opinion, without such guidelines, the power of the Appointing Authority in judging the suitability of candidates for entering Government service would have been arbitrary and untrammeled and would have been violative of Articles 14 and 16 of the Constitution.
According to these guidelines.
Normally a person convicted of an offence involving moral turpitude should be regarded as ineligible for Government Services.
While normally a person convicted of an offence involving moral turpitude should be regarded as ineligible for Government service, however, in cases where the Appointing Authority feels that there are redeeming features and reasons to believe that such a person has cured himself of the weakness, specific approval of the Government may be obtained to his employment.
In the instant case, the aforesaid guidelines would not apply, as the criminal Court has not convicted the applicant.
9. The question before us is whether the applicant could be deprived of a chance to serve the Government solely on the ground of pendency of a criminal case for demanding dowry in which he is a co-accused in the pending trial in the Court.
20. What is discernible from the above is that the only impediment to be appointed to a Government service is conviction on an offence involving moral turpitude but involvement, which is not culminated into a proof by conviction, cannot be a way out or guise to do away with the services of applicant.Pawan Kumar v. State of Haryana , while dealing with a case where a person has been sentenced of a fine of Rs. 20 in an offence under Section 294IPC, while deliberating on the issue of moral turpitude and admissibility or an impediment to Government service, taking a pragmatic view held as follows: 12. "Moral turpitude" is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity. The Government of Haryana while considering the question of rehabilitation of ex-convicts took a policy decision on 2.2.1973 (Annexure E in the Paper-book), accepting the recommendations of the Government of India, that ex-convicts who were convicted for offences involving moral turpitude should not however be taken in Government service. A list of offences which were considered involving moral turpitude was prepared for information and guidance in that connection. Significantly Section 294 IPC is not found enlisted in the list of offences constituting moral turpitude.
Later, on further consideration, the Government of Haryana on 17/26.3.1975 explained the policy decision of 2.2.1973 and decided to modify the earlier decision by streamlining determination of moral turpitude as follows: ... The following terms should ordinarily be applied in judging whether a certain offence involves moral turpitude or not; (1) whether the act leading to a conviction was such as could shock the moral conscience of society in general.
(3) whether on account of the act having been committed the perpetrator could be considered to be a depraved character or a person who was to be looked down upon by the society.
Decision in each case will, however, depend on the circumstances of the case and the competent authority has to exercise its discretion while taking a decision in accordance with the above-mentioned principles. A list of offences which involve moral turpitude is enclosed for your information and guidance. This list, however, cannot be said to be exhaustive and there might be offences which are not included in it but which in certain situations and circumstances may involve moral turpitude.
Section 294 IPC still remains out of the list. Thus the conviction of the appellant under Section 294 IPC on its own would not involve moral turpitude depriving him of the opportunity to serve the State unless the facts and circumstances, which led to the conviction, met the requirements of the policy decision above-quoted.
13. We had required of the respondents to produce before us the copy of the judgment whereby the appellant was convinced for the offence.
As was expected only a copy of the institution/summary register maintained by the Court of the Chief Judicial Magistrate, Bhiwani was placed before us showing that the appellant on 4.6.1980 was imposed a fine of Rs. 20. A copy of the treasury challan supporting that the fine paid was deposited by the Chief Judicial Magistrate the same day has also been produced. The copy of the summary register neither discloses the substance of the allegations put to the appellant, nor the words in which the plea of guilt was entered.
It is of no significance that the appellant treats himself a convict, as he had pleaded guilty. Ex facie it only shows that the entry concerns FIR No. 231 of 3.6.1980 under Section 294 IPC. Therefrom it is difficult to discern the steps taken in the summary trial proceedings and what had the appellant pleaded to as guilty, whether to the allegations in the FIR or to the provision of the IPC or any other particular? Mere payment of fine of Rs. 20 does not go to show that the conviction was validly and legally recorded.
Assuming that the conviction is not open to challenge at the present juncture, we cannot but deprecate the action of the respondents in having proceeded to adversely certify the character and antecedents of the appellant on the basis of the conviction per se, opining to have involved moral turpitude, without satisfying the tests laid down in the policy decision of the Government. We are rather unhappy to note that all the three Courts below, even when invited to judge the matter in the said perspective, went on to hold that the act/s involved in conviction under Section 294 IPC per se established moral turpitude. They should have been sensitive to the changing perspectives and concepts of morality to appreciate the effect of Section 294 IPC on today's society and its standards, and its changing views of obscenity. The matter unfortunately was dealt with casually at all levels.
14. Before concluding this judgment we hereby draw the attention of Parliament to step in 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 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.
22. If one has regard to the above, though the Courts have no jurisdiction to legislate but the observation being an obitter dicta is binding on me, clearly shows that policy of the Government only dissuades a morally corrupt person to be inducted as a Government servant but a person who is yet to be declared as such, the discretion exercised not to appoint him or to do away with his service is not judicious.
23. High Court of Rajasthan in Brijendra Singh Meena (supra) where the issue raked up was denial of appointment on account of pendency of criminal case on moral turpitude, the following observation is relevant to be quoted: 5. At the out-set it may be stated that the petitioner has not been denied appointment on the ground of concealment of particulars which ought to have disclosed either in the application form or the attestation form. It is also not the case of the respondents that on verification of antecedents the petitioner was found unsuitable for appointment to the post. He has been denied appointment merely on the ground of pendency of two criminal cases as reported by the Collector & District Magistrate, Sawaimadhopur vide his communication dated October 28, 1996, a copy of which has been placed on record by the learned Counsel for the respondents during arguments.
6. There is no dispute that recruitment of Junior Marketing Officers is governed by the Rajasthan Subordinate Service (Recruitment and other Service Conditions) Rules, 1960 (for short 'the Rules') after Notification No. F. 10 (15) Agrl./Gr.2/81, S.O. 163 dated January 9, 1986 issued by the State Government 50% posts of Junior Marketing Officer are filled up by Direct Recruitment and rest 50% by promotion. Rule 13 of the Rules, which relates to the character of a candidate for direct recruitment reads as under and this rule has a direct bearing or resolving the controversy in hand -- 13. Character - The character of a candidate for direct recruitment must be such as to fit him for Public Service. He must produce two certificates of good character written not more than six months prior to the date of his application from two responsible persons not related to him.
Note - (1) A conviction by a Court of law need not of itself involve refusal of a certificate of good character. The circumstance of the conviction should be taken into account and if they involve no moral turpitude of association with crime or violence or with a movement which has as its object the over through by violate means of Government as by law established, the mere conviction need not be regarded as a disqualification.
(2) Ex-prisoners who by there disciplined life while in prison and by their subsequent good conduct have proved to be completely reformed should not be discriminated against on grounds of the previous conviction for purposes of employment in the Service. Those who are convicted of offences not involving moral turpitude shall be deemed to have been completely reformed on the production of a report to that effect from the Superintendent, After Care Home or if there are not such Homes in a particular district, from the Superintendent of Police of that district. Those convicted of offences involving moral turpitude shall be required to produce a certificate from the Superintendent, After Care Home endorsed by the Inspector General of Prisons to the effect that they are suitable for employment as they have proved to be completely reformed by their disciplined life while in Prisons and by their subsequent good conduct in an After Care Home.
7. A bare perusal of the above rule makes the position amply clear that even conviction of the candidate by a Court of law may not be regarded as a disqualification for his appointment. Note 2 goes even further providing that persons convicted of offence after sometime of their conviction can also be considered for recruitment. The Rule no where provide pendency of a criminal case against a candidate to disqualify him for his entry into the service. The reason for this is obvious. Pendency of a criminal case cannot lead to the conclusion of committing the offence by the accused. Presumption is otherwise. No person is presumed to be guilty of an offence unless convicted by a competent Court after trial. It is also our common experience that trial of a criminal case consumes much time and ultimately the accused may be acquitted therein. Refusal of appointment on the ground of pendency of a criminal case would, therefore, result in miscarriage of justice to the candidate because even on his ultimate acquittal he cannot enter into service. The Legislature, in its wisdom, has rightly thought it proper by omitting to include a provision in the rules providing pendency of a criminal case to be taken as a disqualification for entering into service. The language deployed in Rule 13 only requires that a character of a candidate for direct recruitment must be such as to fit him for public service. It also makes clear that conviction by a Court of law need not by it be regarded sufficient for refusal of the certificate of good conduct, by saying it should not be misunderstood that conviction for an offence involving moral turpitude cannot be regarded as a disqualification.
8. As stated earlier, the petitioner has not been denied appointment on the ground that his character is such which makes him unsuitable for the service. Neither it is the case of the respondents nor there is any adverse report against the petitioner of this nature after verification of his antecedents. Hence, I am of the definite view that the petitioner has been wrongly denied appointment merely on the ground of pendency of two criminal cases, out of which in one he has been acquitted. This action violates Articles 14, 15 and 16 of the Constitution. The petitioner has been wrongly discriminated on this ground as person lower in merit has been given appointment in his place. No doubt verification of the character and antecedents is one of the important criteria to test whether selected candidate is suitable to a post under the State. However, in the instant case no such opinion was formed against the petitioner on the basis of his character and antecedents. This view taken by me is in consonance with the letter and spirit of Rule 13 quoted above. Similar view has been taken by me in the case of Sheesh Ram v. State of Rajasthan and Ors. (S.B. Civil Writ Petition No. 1467/96) decided on April 1, 1997 wherein denial of appointment on the post of a constable merely on the ground of pendency of a criminal case involving moral turpitude was held to be unjustified on consideration of Rule 13 of the Rajasthan Police Subordinate Service Rules, 1989, which is para material to Rule 13 herein. A similar view has been taken by a Division Bench of this Court in the case of Gopi Lal v. State of Rajasthan and Anr. 1989(2) RLR 748.
9. In Matadin Garg v. State of Rajasthan (Civil Appeal No. 2719/91) the Supreme Court had an occasion to consider this aspect. In that case the appellant Matadin Garg was denied appointment on the ground that he was an accused in a case under the Essential Commodities Act in which he was ultimately acquitted. But this fact was concealed by him in the application form. The Supreme Court allowed the appeal, set aside the order denying appointment to him observing that it was not an intentional suppression of the information.
24. The High Court of Jammu and Kashmir in Baraf Singh (supra) made the following observation: 10. Least that was expected of the respondents as well as the Appointing Authority was to examine such report of verification of character and antecedents, and if it was received and then pass an order justifying that the petitioner was not a fit person for being appointed as such. While doing so, Appointing Authority is expected to go into the whole case and then come to its independent conclusion. By either not appointing an incumbent like petitioner simply on the basis of the verification report of character and antecedents without taking a decision on it, action of the Appointing Authority would be not only be unjust and harsh, but at the same time would be illegal, arbitrary and unconstitutional. Thus violative of Articles 14 & 16 of the Constitution of India. For taking this view, reliance is being placed on a decision of this Court reported in Onkar Singh v. State 1997(2) SCT 413.
11. In the context of the present case, another decision of this Court is dated 12.5.1997 in S.W.P. No. 1223/1996; what was observed and is relevant in the context of the present case was in the following term: However, it shall be open to the competent authority to deal with the matter in accordance with the rules, in case he is convicted by any criminal Court. His seniority shall reckon from the date his co-selectees were appointed in order of merit but this shall not entitle him to any pecuniary benefit.
The respondents submit that formal order of appointment would be issued after verification of the certificates and on the satisfaction of the Appointing Authority regarding the petitioner's character and antecedents in terms of Rule 17(d) of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 (1956 Rules) and the J & K Civil Services (Verification of Character and Antecedents) Instructions of 1969 sanctioned vide Govt. Order No. Home-559-IS of 1969 dated 18.9.1969 which empower the Appointing Authority to satisfy himself about the character and antecedent of a candidate before making his appointment.
In the scenario all that remains to be seen is whether the respondents were justified in withholding the appointment order of the petitioner in the facts and circumstances of the case in the light of Rule 17(d) of the 1956 Rules and the Govt. instructions contained in Govt. Order No. Home 559/IS of 1969.
The Appointing Authority cannot keep the matter in cold storage and hold the available 'adverse material' close to his chest without formation of any opinion on such material and taking appropriate action supported by reasons to disentitle a selected candidate from appointment. Such a course of action would be wholly and grossly arbitrary infringing the right of equality of employment of a candidate at his back.
The requirement of passing of the order by the Appointing Authority on the basis of available material becomes necessary to ensure that the selected candidate is not deprived of his employment on an extraneous consideration or relevant (irrelevant) material. The verification of antecedents and character of a candidate through the police agency may throw up material which may not be relevant to his suitability for the job or which may be extraneous to the nature of his duties attached to the post. The selected candidate in such a situation, cannot be shown the door merely because the verification had disclosed some secret information about him.
Such pendency which could also result in acquittal of an accused, could not constitute a factor for depriving a selected candidate from employment unless he was convicted and sentenced which would earn him a disqualification for holding the post.
To similar effect another decision of this Court in S.W.P. No. 194/98, Ritu Raj Singh Jamwal v. State and Anr.
25. A cumulative reading of the above clearly indicates that unless a person is convicted of an offence, merely because a case has been pending against him cannot be an impediment for his appointment.
26. In the light of the above ratio decidendi it is relevant to highlight the stand taken by the respondents in the order of termination, which is reproduced as under: Since Shri Guru Dutt Ranga does not fulfill the eligibility as per Clause (d) of para-I of terms & conditions of offer of appointment letter No. Min./Rectt./Gr.II(DASS)/EV/LNH/2004/1806-8 dated 04.08.2004 which clearly stipulates that his appointment to the post is subject to satisfactory verification of his character and antecedents from the concerned Authorities and the candidate if convicted under Section 452/427/34 of IPC could attract the imprisonment for the period ranging from 2 to 7 years. Hence, keeping in view the seriousness of charges and it would be in the fitness of thing that Shri Guru Dutt Ranga may not be appointed in the Government.
Therefore, in pursuance of Sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rule, 1965, I, Dr. Vinod Kumar Ramteke, Medical Superintendent hereby give notice to Shri Guru Dutt Ranga that his services shall stand terminated with effect from the date of expiry of a period of one month from the date on which this notice is served on, or as the case may be, tendered to him.
27. The only ground to dispense with the services of applicant is that if applicant is convicted which could attract imprisonment for the period ranging from 2 to 7 years. The seriousness of charge shows involvement of applicant in the criminal case, which would be an impediment for appointment to Government service. I do not find any examination of the fact situation of the criminal case and on ipse dixit the competent authority on a contingency fore sighting the outcome of the criminal case to the detriment of applicant on surmises taken a decision to terminate the services of applicant.
28. An administrative order when shows non-application of mind and is not preceded by a reasonable opportunity to show cause in consonance with the principles of natural justice as fairness in procedure is a condition precedent and being an order passed in quasi judicial capacity principles of natural justice though may not be incorporated in the rules are to be read as part of the rules as inbuilt in the rules to have fair play and transparency in the action. It is obligated upon respondents to have passed a conscious, reasoned order, showing application of mind. The above order shows pre-determination and throws all canons of justice and fair play to the ransom, A decision of the Apex Court in G. Sreeniwasa Rao v. Govt. of A.P. CA No. 2447/2005 decided on 20.09.2005 cited in 2005 SCCL.Com 570 lays down a proposition of non-compliance of principles of natural justice in administrative order, vitiating the same.
29. The Apex Court in Lakhan Lal Tripathi v. Commandant General and Anr. 2000 (10) SCC 184 in the matter when service has been terminated for suppression of material fact observed as under: 5. That apart, the services of the appellant were terminated for the reason that he was found over age at the time of appointment on the post of Warrant Officer and when a reference was made to the State Government for relaxation in age, the Government refused to consider the matter.
6. Whether the appellant was over age and whether he was entitled to any relaxation in age are questions which could not have been decided by the respondents by taking a one-sided decision without giving any opportunity to the appellant to indicate that the opinion of the respondents that he was overage was not correct. The principles of natural justice were not observed and the termination order was arbitrarily passed.In Chief Engineer, MSEB v. Suresh Raghunath Bhokare 2005(1) SCSLJ 163, a three-Judge Bench decision of the Apex Court relying upon the decision of the Apex Court in Vice-Chairman, Kendriya Vidyalaya Sangthan and Anr. v. Girdharilal Yadav 4. Mr. A.S. Bhasme, learned Counsel for the appellants addressed lengthy arguments in support of the appeal and has also find written submissions. He has contended that the respondent has played a fraud probably in collusion with the District Social Welfare Officer and has obtained an appointment through back door entry hence the respondent is not entitled to reinstatement. He also relied upon the judgment of this Court in the case of Vice-Chairman, Kendriya Vidyalaya Sangthan and Anr. v. Girdharilal Yadav , Ram Chandra Singh v. Savitri Devi and Ors. (2003) 8 SCC 318 and Secretary, A.P. Swre I Society v. J. Prathap and Ors.
to contend that misrepresentation by itself would amount to fraud therefore an appointment based on misrepresentation gets vitiated because of such fraud. On the contrary Mr. M.D. Adkar, contended that the act of the appellant in terminating the services of the respondent clearly amounted to unfair labour practice as contemplated under the MRTU & PULP Act, 1971. He submitted though the Labour Court erroneously rejected the complaint of the respondent the revisional Court had properly taken into consideration all material facts and given relief to the petitioner which has been affirmed by the High Court hence this Court should not interfere with the said orders of the authorities below.
5. The entire basis of the dismissal of the appellant depends upon the factum of the alleged misrepresentation attributed to the respondent. The Industrial Court in its impugned order has noted the fact that the respondent was appointed in April, 1994 pursuant to the selection procedure followed by the competent authority and that he was selected by the panel of Selection Committee consisting of 6 members which included the very same Social Welfare Officer who has sent the proposal including the name of the respondent for appointment. It also noticed the fact that the selection in question was made after an oral interview and the required test as also the medical examination. The Industrial Court also noticed the fact that the appointment of the respondent was confirmed after 1-year period and thereafter the respondent has been working without any complaint. Said Industrial Court also noticed the fact that the termination of the respondent was based on a show cause notice issued on 5.7.99 which was replied to by the respondent on 17.7.99 and the termination was made in a summary procedure permissible under Rule 90 (b) of the Service Regulations. The Industrial Court after perusing the pleadings and the notice issued to the respondent came to conclusion that the alleged misrepresentation, which is now said to be a fraud, was not specifically pleaded or proved. In the show cause notice no basis was laid to show what is the nature of fraud that was being attributed to the appellant. No particulars of the alleged fraud were given and the said pleadings did not even contain any allegation as to how the appellant was responsible for sending the so called fraudulent proposal or what role he had to play in such proposal being sent. It also noticed from the evidence of Mr. Waghmare, Social Welfare Officer who sent the proposal before the Labour Court that he did not utter a single word as to whether the said supplementary list was ever called for by the department concerned or not. Thus applying the basic principle of rule of evidence which requires a party alleging fraud to give particulars of the fraud and having found no such particulars the Industrial Court came to the conclusion that the respondent could not be held guilty of fraud. Said finding of the Industrial Court has been accepted by the High Court. Mr. Bhasme though contended that the fraud in question was played in collusion with the Social Welfare Officer and 2 other employees of the board and action against said 2 employees of the Board has been taken, but by that itself we are unable to accept the argument of Mr. Bhasme that there is material to support the contention of the Board that the appellant had also contributed to making the misrepresentation at the time of applying for the job with the Board. In the absence of any such particulars being mentioned in the show cause notice or at the trial, attributing some over act to the respondent, we do not think the Board can infer that the respondent had a role to play in sending a fraudulent list solely on the basis of the presumption that since respondent got a job by the said proposal, said list is a fraudulent one. It was the duty of the Board to have specifically produced the material to prove that the respondent himself had the knowledge of such a fraud and he knowingly or in collusion with other officials indulged in this fraud. Since there is no such material on record, on the facts of the instant case, the Industrial Court and the High Court have come to the right conclusion that the alleged fraud has not been established by the appellants, hence, this is not a fit case in which interference is called for. This appeal, therefore, fails and the same is dismissed.
31. Having regard to the ratio decidendi of these decisions in a case where the services are dispensed with on termination on a particular act of misconduct being the foundation when otherwise there is no complaint of unsatisfactory performance during the period one has worked on the post is not only punitive but for want of a reasonable opportunity to show cause the order not only casts stigma upon applicant but is denial of a reasonable opportunity and in violation of Article 311 of the Constitution of India. In Dipti Prakash Banerjee v.S.N. Base Science Centre JT 1999(1) SC 396 the Apex Court has ruled that when the imputation is contained in the order itself and misconduct is not a motivating factor but a foundation, order of termination is punitive for want of reasonable opportunity to show cause is violative of Article 311 of the Constitution of India.
32. Respondents' Counsel has referred to a decision of the Apex Court in Sushil Kumar (supra) where a police constable who had been acquitted of the offence when his candidature was cancelled for the post of constable, the following observations have been made: 3. This appeal by special leave arises from the order of the Central Administrative Tribunal, New Delhi made on 6.9.1995 in OA No. 1756 of 1991. The admitted position is that the respondent appeared for recruitment as a Constable in Delhi Police Services in the year 1989-90 with Roll No. 65790. Though he was found physically fit through endurance test, written test and interview and was selected provisionally, his selection was subject to verification of character and antecedents by the local police. On verification, it was found that his antecedents were such that his appointment to the post of Constable was not found desirable. Accordingly, his name was rejected. Aggrieved by proceedings dated 18.12.1990 culminating in cancellation of his provisional selection, he filed OA in the Central Administrative Tribunal. The Tribunal in the impugned order allowed the application on the ground that since the respondent had been discharged and/or acquitted of the offence punishable under Section 304 IPC under Section 324 read with Section 34 IPC and under Section 324 IPC, he cannot be denied the right of appointment to the post under the State. The question is whether the view taken by the Tribunal is correct in law? It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the Appointing Authority found it not desirable to appoint a person of such record as a Constable to the disciplined force. The view taken by the Appointing Authority in the background of the case cannot be said to be unwarranted. The Tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequences. The consideration relevant to the case is of the antecedents of the candidate.
Appointing Authority, therefore, has rightly focussed this aspect and found it not desirable to appoint him to the service.
33. If one has regard to the above, the decision in Sushil Kumar(supra) was also diluted and distinguished in Dhaval Singh (supra) with the following observations: 6. Learned Counsel for the appellants has drawn our attention to a judgment rendered by a Bench of this Court on 4.10.1996 in Delhi Admn. v. Sushil Kumar. On the first blush, that judgment seems to support the case of the appellants but there is a material difference between the two cases. Whereas in the instant case, the respondent has conveyed to the appellant that an inadvertent mistake had been committed in not giving the information against the relevant column in the Form much before the cancellation of his candidature, in Sushil Kumar case, no such correction was made at any stage by the respondent. That judgment is, therefore, clearly distinguishable on facts.
34. Though both the orders relating to cancellation of candidature, yet the ratio decidendi on the question of law is that when the information regarding criminal case is volunteered by the candidate himself for want of reasons recorded and application of mind by the competent authority, cancellation of appointment cannot be sustained. Mutatis mutandis the same applies to the present case.
35. Sushil Kumar's case (supra) may hold good for a case relating to Delhi Police where involvement though on acquittal is a serious concern to see the fitness as record of a constable to the disciplined force, yet in other Government departments to a civilian post one the guidelines as reproduced in Girish Bhardwaj (supra) do not impede appointment of a candidate with only involvement in a criminal case as till the outcome of the criminal case is not available one cannot be branded for being immoral or guilty of that offence. To adjudge character and antecedents of a person though there may be others who are not involved in criminal case, yet involvement in criminal case merely on the basis of an FIR is a pre-determination of conviction of a person, the authorities par take the role of a judicial body to give a verdict of guilt when the trial has not been completed. As such, surmise and arbitrariness and pre-determination of the issue speak volumes of the administrative authority who shall in all situations act fairly being a model employer.
36. Mere involvement in a criminal case when the trial is on is not a mirror to reflect the unsatisfactory character of a person. In this era when our country has developed multifold in population it is hard to find Government jobs. One who by dint of hard work qualifies the competitive examination with a village background where there is a customary and recurrent property disputes feuds etc. where the entire family is named as accused, this involvement which is yet to be observed as false or otherwise is taken to be a touchstone of holding the character as unsatisfactory to deprive the person of his hard earned employment.
37. Though equity cannot be claimed as a matter of right, but it is a test to check arbitrariness in administrative action. Legitimate expectation is also a well-recognized doctrine in our judicial system.
Once a person despite involvement in the criminal case, like in the present case, when the report of verification was available to respondents on 27.9.2004, sitting over the above issue and passing an order of termination on 29.8.2005, i.e., after almost an year, shows that applicant has rightly resorted to this doctrine ibid.
38. However, in Pawan Kumar's case (supra) for a petty offence a conviction has not been found to be an impediment and on the same footing the law shall mutatis mutandis apply to a situation where on an alleged involvement when the trial is in progress and outcome is not available, presumption of guilt cannot be drawn.
39. Irrational and arbitrary decision of the respondents is apparent on the face of it in the order of termination which casts a stigma against applicant on a presumption that the involvement would culminate into an imprisonment as an astrological conclusion arrived at by the respondents to hold that verification of the character and if convicted imprisonment would range from 2 to 7 years, is such a conclusion, which even a common reasonable prudent man would not have arrived at and does not pass the test of reasonableness.
40. I do not find any allegation of unsatisfactory performance of applicant till he had worked on the post, rather as an outcome of his earlier OA when he had been put back in service and was to be paid salary by the respondents this termination appears to be a misuse of their power to settle the score with applicant. Even legal mala fides can be inferred on the face of it.
41. Though much has been said by the learned Counsel of respondents on suppression of information by stating that though the charge report is dated 12.8.2004, yet the attestation form was filled though on 12.8.2004 but submitted on 24.8.2004, would not make any difference, as the crux of the matter that applicant had voluntarily informed about his involvement in an FIR, late submission of attestation form is neither levelled nor an issue before me. There is no whisper as to concealment of material information by applicant. It is trite law that whatever contained in the order other material cannot be supplemented by way of reply or additional pleadings.
42. I also find that the decisions of the Rajasthan and Jammu & Kashmir High Courts for want of any conflict with any of the decision by the Delhi High Court are binding on me and the ratio decidendi arrived at mutatis mutandis covers the case of applicant as well.
43. Though a temporary Government servant has no right to hold the post, yet his services cannot be dispensed with under the guise of service conditions by an innocuous order though in the present case order is reasoned, casting stigma on applicant and founded on misconduct, termination cannot be resorted to on unjustifiable grounds.
44. Clause (d) of the terms and conditions requires only fitness on medical examination and also verification of the character and antecedents, nowhere it is stated that it has to be satisfactory.
However, mere involvement cannot make the verification as unsatisfactory in the light of decision of the Apex Court in Chunilal Shah (supra).
45. Termination is in violation of principles of natural justice and Article 311(2) of the Constitution as before resorting to termination neither a notice nor a reasonable opportunity to show cause had been accorded to applicant. Natural justice is implicit in rules and has to be read as part and parcel thereof, if not specifically provided, as held by the Apex Court in J.A. Naiksatam v. Prothonotary Senior Master 2005 (1) SLJ SC 219.
46. In the result, for the foregoing reasons, action of the respondents, terminating the services of applicant by a notice of one month cannot be sustained in law. Accordingly, OA is allowed. Impugned order is set aside. Respondents are directed to allow applicant to perform his duties. He shall also be entitled to all consequential benefits. However, on conclusion of the criminal trial, law shall take its own course. No costs.