There was no occasion to hold an enquiry in respect of a candidate who infact has not been appointed or selected for the post: Delhi High Court
W.P.(C) 114/2023 & CM APPL. 421/2023
SHYAM ALI v. UNION OF INDIA AND ANR.
Being aggrieved against the order on 28.10.2022, the current petition had been filed seeking quashing of the order as well as setting aside of order dated 17.06.2016. Petition before the HON’BLE MR. JUSTICE SURESH KUMAR KAIT and HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA.
FACTS OF THE CASE:
The petitioner is of the contention that he had been appointed as Constable Pioneer (Recruit) in 36 Battalion of Indo Tibetan Border Police (ITBP) followed due recruitment process. The petitioner, during the selection process was required to fill Column No. 12 (A) & (B) & 13 of attestation form in the Verification Roll which is composite information regarding arrest, prosecution and detention of the candidate and he had filled this as “No” in the respective columns.
The office of 36 Battalion during its verification reached out to District Magistrate, Bharatpur for character verification, it was found that an FIR No. 56/2013 was registered against the petitioner wherein charge sheet No. 101 on14.08.2013 under Sections 323/325/341/147 IPC was filed and the case pending for adjudication.
| Section 147 | Punishment for rioting |
| Section 323 | Punishment for voluntarily causing hurt |
| Section 325 | Punishment for voluntarily causing grievous hurt. |
| Section 341 | Punishment for wrongful restraint. |
The petitioner was issued a Show Cause Notice on 18.05.2016 seeking reasons for suppression / concealment of pendency of an FIR against him. In reply, the petitioner pleaded to have made a clerical mistake, due to confusion and also stated that mere pendency of an FIR or criminal case against him, should not be treated as if he was convicted. Against the Show Cause Notice, the petitioner claims to have preferred a writ petition before the High Court of Rajasthan at Jaipur [W.P.(C) 7872/2016]. Here, the Court through its order on 20.03.2016 directed to keep the Show Cause Notice in a state of dormancy till the next date. But on the next date, respondent- ITBP informed the Court that the petitioner had already been removed from service through order dated 17.06.2016.
The petitioner appealed to the above mentioned order to the competent authority, but was dismissed by order dated 16.11.2016.
During the course of hearing, learned counsel for petitioner submits that when the petitioner was19 years old, his father had won Sarpanch election. The complainant of the above FIR in question had lost and he got the FIR registered against the petitioner along with 10 other persons. As the offences were bailable, the petitioner was never arrested or taken into custody.
It was due to lack of attention that the petitioner has written “No” in the columns of Verification Roll.
The Petitioner’s counsel has brought it to the notice of the Court that the learned ACMM after dealing with the facts of the said case, has held that the evidence placed on record is unreliable and the offences against the accused persons were not proved. Thereby, petitioner along with other accused, have been acquitted of the offences charged with giving benefit of doubt.
The petitioner’s counsel submits that subsequent to acquittal of petitioner, he forwarded a representation on 08.08.2022 before the competent authority for review of order dated 16.11.2016. This was yet again rejected by the respondents by an order on 28.10.2022.
Being aggrieved against the above order, the current petition had been filed seeking quashing of the above thereof as well as setting aside of order dated 17.06.2016.
Learned counsel for petitioner submitted that as per Section 11 of the ITBP Act, 1992, penalty of removal from service has to be preceded by an inquiry. But in the current case the petitioner was only issued two Show Cause Notices. The petitioner has been “removed from service” and under Rules 17 & 22 of Act but this did not envisage penalty of removal from service on alleged suppression of information in the Verification Roll.
Learned counsel of petitioner relied upon decision of Hon‟ble Supreme Court in Civil Appeal No.18798/2017, arising from SLP(C) No. Avtar Singh Vs. Union of India And Ors to submit that in case of acquittal on benefit of doubt, the entire relevant facts and antecedents are required to be considered for continuation of an employee in service.
Learned senior counsel appearing on behalf of respondents have disputed the pleas raised in the current petition and has submitted that the order dated 17.06.2016 and Office Memorandum dated 28.10.2022 are well merited and do not attract for any interference by the Court.
JUDGEMENT:
The Court stated that as per guidelines of the Ministry of Home Affairs, a candidate is required to declare in the application form whether he has been arrested, prosecuted or convicted by a court for any criminal offence. The intention of this condition is to have a clear knowledge of the candidate who is seeking employment in a Force which governs the security of the State and the nation.
The petitioner had pleaded that at the time of registration of the FIR he was 19 years old and due to inadvertent clerical error had missed out on giving the information in the prescribed Column regarding pendency of FIR against him. But, in the enquiry it was revealed that he had appeared in the Court on 20.01.2016. Therefore, the petitioner had made false declaration before the competent authorities.
Respondents have relied upon decision of Supreme Court dated 01.12.2014 in the matter of State of M.P. & Ors. Vs. Parvez Khan wherein it is held that ‘a candidate to be recruited in the police service must be worthy of confidence and must be a person of utmost rectitude and must have impeccable character and integrity. A person having criminal antecedents will not fit in this category”.
The order on 28.10.2022 also takes note of the decision in Avtar Singh Vs. Union of India And Ors. In this case there was clear acquittal, whereas in the current case petitioner has been given benefit of doubt.
In the said case the petitioner had left column No.12 blank and during the verification it came to the knowledge of the appointing authorities that an FIR was pending against him. But in the current case petition, the petitioner has not left the column unfilled but has written “No” therefore concealing the factum of pendency of FIR.
Learned counsel for the petitioner raised the plea that the petitioner has been “removed from service” and not terminated and removal from service has to be preceded with inquiry. Here, the petitioner was in the process of appointment, as it was during the process of his character verification that the aspect of pendency of FIR against him came into the light. Thus no occasion existed to hold an enquiry in respect of a candidate who was yet to be appointed or selected for the post.
This petition and pending application were accordingly dismissed being highly behind time as well as on merits.
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JUDGEMENT REVIEWED BY ADITYA G S.