Union Of India & Ors vs Bipad Bhanjan Gayen

declaration aforesaid was verified by the District Magistrate,

Alipore, 24 Parganas (South) when it was revealed that he had

been involved in FIR No.20/1993 Police Station, Usti, for an

offence punishable under Section 376 of the IPC and that

another case under Section 417 of the IPC apparently on

complaint was pending in Court. On receiving this

information, the Chief Security Officer, RPF, Eastern Railway,

Calcutta passed an order dated 10th July 1995 terminating his

services with immediate effect "because of his involvement in

police case, as reported by DM/Alipore and suppression of

this factual information in the attestation form by the

candidate". Consequent to the aforesaid order, the services of

respondent were terminated by a formal order dated 15th July

1995. Subsequent to the aforesaid orders, the respondent

was discharged in the FIR on 8th January 1996 and it appears

that a separate proceeding terminating the prosecution under

Section 417 of the IPC was also initiated. The orders dated

10th July 1995 and 15th July 1995 were challenged before the 3

Calcutta High Court. The Union of India filed a detailed

counter affidavit on 11th March 1997 giving details of the

verification report received from the District Magistrate. The

learned Single Judge in his judgment and order dated

14th October 1999, allowed the writ petition and quashed the

impugned orders on the ground that there had been a

violation of the principles of natural justice, in that the

petitioner had not been given any opportunity of being heard

before the orders had been made and as the orders were

stigmatic and penal in nature they could not have been made

without proper enquiry etc. An appeal was thereafter taken

to the Division Bench which endorsed the findings of the

learned Single Judge by observing that though a false

declaration admittedly had been made by the respondent, but

as the impugned order was stigmatic and visited the

respondent with penal consequences, it was incumbent upon

the employer to have given him a reasonable opportunity to

show cause against the action proposed to be taken. The

appeal was accordingly dismissed.

4

4. The learned counsel for the Union of India has submitted

that the finding of the learned Single Judge as also the

Division Bench of the High Court was clearly erroneous

inasmuch that the respondent was admittedly a probationer

and had been sent for training, subject to the verification of

the details given by him in his attestation form and as the

facts stood, the respondent had himself admitted that the two

prosecutions were indeed pending on the day when he had

filled in the form, the question of any need for enquiry or an

opportunity of a hearing was to be ruled out. It has also been

pleaded that though respondent had been exonerated in both

the prosecutions but the misconduct alleged was of the

incorrect filling of the attestation form and not of being

involved in a criminal case and as such, the mere fact that he

had been exonerated would have no effect on the merits of the

controversy. The learned counsel has accordingly placed

reliance on Rules 57 and 67 of the Railway Protection Force

Rules, 1987 (hereinafter called the "Rules") as also several

judgments of this Court reported in Kendriya Vidyalaya

Sangathan & Ors. Vs. Ram Ratan Yadav, (2003) 3 SCC 5

437, A.P. Public Service Commission vs. Koneti

Venkateswarulu & Ors. (2005) 7 SCC 177 and State of

Haryana & Anr. Vs. Satyender Singh Rathore (2005) 7

SCC 518. The learned counsel for the respondent has

however supported the judgments of the courts below and has

pointed out that as the appellants had not put the copy of the

attestation form on record, it was not possible to verify the

correct facts and that in any case, the impugned order dated

15th July 1995 being stigmatic, could not be sustained,

5. We have heard the learned counsel for the parties and

gone through the record. Rule 57 of the Rules provides for a

probation period of 2 years from the date of appointment

subject to extension. Rule 67 provides that a direct recruit

selected for appointment as an enrolled member of the Force

is liable to be discharged at any stage if the Chief Security

Officer, for reasons to be recorded in writing, deems it fit to do

so in the interest of the Force till such time as the recruit is

not formally appointed to the Force. A reading of these two

rules would reveal that till a recruit is formally enrolled to the

Force his appointment is extremely tenuous. It is the 6

admitted case that the respondent was still under probation at

the time his services had been terminated. It is also apparent

from the record that the respondent had been given

appointment on probation subject to verification of the facts

given in the attestation form. To our mind, therefore, if an

enquiry revealed that the facts given were wrong, the appellant

was at liberty to dispense with the services of the respondent

as the question of any stigma and penal consequences at this

stage would not arise. 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. The learned counsel for the appellant-

Union of India has rightly relied on Kendriya Vidyalaya 7

Sangathan's case (supra) in which this is what the Court

had to say:

"It is not in dispute that a criminal case registered under Sections 323,341,294,506-B read with Section 34 IPC was pending on the date when the respondent filled the attestation form. Hence, the information given by the respondent as against columns 12 and 13 as "No" is plainly suppression of material information and it is also a false statement. Admittedly, the respondent is holder of B.A, B.Ed and MED degrees. Assuming even his medium of instruction was Hindi throughout, no prudent man can accept that he did not study English language at all at any stage of his education. It is also not the case of the respondent that he did not study English at all. If he could understand columns 1- 11 correctly in the same attestation form, it is difficult to accept his version that he could not correctly understand the contents of columns 12 and 13. Even otherwise, if he could not correctly understand certain English words, in the ordinary course he could have certainly taken the help of somebody. This being the position, the Tribunal was right in rejecting the contention of the respondent and the High Court committed a manifest error in accepting the contention that because the medium of instruction of the respondent was Hindi, he could not understand the contents of columns 12 and 13. It is not the case that columns 12 and 13 are left blank. The respondent 8

could not have said "No" as against columns 12 and 13 without understanding the contents. Subsequent withdrawal of criminal case registered against the respondent or the nature of offences, in our opinion, were not material. The requirement of filling columns 12 and 13 of the attestation form was for the purpose of verification of character and antecedents of the respondent as on the date of filling and attestation of the form. Suppression of material information and making a false statement has a clear bearing on the character and antecedents of the respondent in relation to his continuance in service.

The purpose of seeking information as per columns 12 and 13 was not to find out either the nature or gravity of the offence of the result of a criminal case ultimately. The information in the said columns was sought with a view to judge the character and antecedents of the respondent to continue in service or not."

6. Likewise in A.P. Public Service Commission's case

(supra) the employee concerned was called upon to fill up

Column No.11 of the form as to whether he had been in any

previous employment. Column No.11 was left unfilled but in

Annexure III appended therewith, a declaration was given that 9

he had not been working in any Government

department/Quasi-Government/Public sector/Private sector.

It appears that this application was accepted and he was

allowed to appear in the written examination which he passed,

was called for interview and was duly selected, but before he

could be notified the result, information was received that he

had been employed as a Teacher and had submitted incorrect

information. This Court observed that the fact that the

employee had deliberately indulged in suppression of relevant

information in the application form was incontrovertible and

further held:

"The explanation that it was irrelevant or emanated from inadvertence is unacceptable. In our view, the appellant was justified in relying upon the ratio of Kendriya Vidyalaya Sangathan and contending that a person who indulges in such suppression veri and suggestion false and obtains employment by false pretence does not deserve any public employment. We completely endorse this view."

7. More recently in R.Radhakrishnan vs. Director General

of Police & Ors. (2008) 1 SCC 660 was a case of withholding 10

of relevant information in the application form by a person

seeking appointment as a fireman and this is what the Court

had to say:

"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."

8. 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 11

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

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.

................................. J.

(TARUN CHATTERJEE)

.................................J. (HARJIT SINGH BEDI) New Delhi Dated: May 9, 2008