ORDER
1. The petitioner has filed this petition challenging the order dated 15/07/2013 (Annexure P/1), whereby, his services have been terminated on account of suppression of fact of registration of FIR against him in respect of criminal case.
2. Facts necessary for decision of this case are that petitioner was selected for appointment on the post of Constable (Trademan) on 21/02/2012. Pursuant to the said selection, the petitioner submitted verification form on 15/03/2012, which is filed on record as Annexure R/4 along with return. In clause 12 of the said verification form, petitioner was required to disclose as to whether he was ever arrested ?
he was ever prosecuted? he was ever convicted by any Court? or he was
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ever prohibited from appearing in the examination conducted by Public Service Commission? Against this clause, the petitioner has stated
"No". Thereafter, petitioner was given appointment on the aforesaid post vide order dated 11/06/2012 (Annexure P/2). Later on, on verification, it was found that an FIR was registered against the petitioner on 01/06/2012 (Annexure R/3) for the offence punishable under section 302/34 of IPC. Resultantly, after some enquiry conducted by the Company Commandant, 13th Battalion, Gwalior, the impugned order was passed, wherein, petitioner was dismissed from service on account of suppression of fact of registration of FIR against him.
3. Learned Senior counsel for the petitioner submitted that since verification form was already submitted by the petitioner on 15/03/2012, the question of suppression of FIR lodged against him subsequently on 01/06/2012 does not arise. He, therefore, submitted that termination of petitioner service on account of suppression of fact in the verification form is factually incorrect and ex-facie illegal. He, therefore, prays for setting aside the impugned order and prays for reinstatement of the petitioner in service.
4. On the other hand, learned Government Advocate for the respondents supported the impugned order and submitted that when factum of registration of FIR and consequential arrest of the petitioner was brought to the notice of the department, the petitioner was suspended from service vide order dated 09/04/2013 (Annexure R/1). An enquiry was conducted by the Company Commandant and as per
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enquiry report dated 07/03/2013 (Annexure R/2), the petitioner was found guilty of suppressing the fact of registration of FIR against him. It is his submission that even after registration of FIR and his arrest, no information in this regard was provided to the Department by the petitioner. He, therefore, prays for dismissal of the writ petition.
5. In response, learned Senior counsel for the petitioner submits that if after selection of the petitioner an FIR was registered against him, at best, the petitioner could have been placed under suspension. However, order of termination from service passed against the petitioner cannot be said to be valid merely because an FIR was registered. He further submits that petitioner was acquitted in the criminal case by the judgment dated 20/07/2013 passed by 2nd Additional Sessions Judge, Jaura, District Morena in Sessions Trial No. 183/2013.
6. Considered the arguments and perused the record.
7. The impugned order has been passed on the ground that before appointment of the petitioner, he has not disclosed factum of criminal case registered against him, in the verification form. The allegation is thus regarding suppression of material fact in the verification form. In this regard, it is seen that verification form was submitted by the petitioner on 15/03/2012, whereas, FIR was registered on 01/06/2012. Therefore, the only ground stated in the impugned order regarding suppression of fact in the verification form is found to be unsustainable inasmuch as on the date of submission of verification form, FIR was not in existence.
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8. As far as contention of the learned Government Advocate for the respondents that in the enquiry, petitioner was found guilty, suffice it to say that the impugned order was not passed based upon the allegations found established in the aforesaid enquiry report. Secondly, no enquiry was conducted and opportunity of hearing granted to the petitioner before submission of enquiry report. Though copy of show cause notice has been placed on record, however that cannot take place of regular departmental equiry which is required to be conducted before terminating the services of the petitioner. More so, merely because criminal case was registered against the petitioner his services could not have been terminated unless criminal proceedings culminates into conviction. Therefore, the impugned order passed by the respondents terminating the services of the petitioner cannot be held justified on this ground. Further, since the petitioner has been acquitted in the criminal case vide judgment dated 20/07/2013, the impugned order even otherwise cannot said to be justified.
9. In view of the aforesaid discussion, the instant petition is allowed and the impugned order dated 15/07/2013 (Annexure P/1) is hereby set aside. The respondents are directed to reinstate the petitioner in service along with all the consequential benefits. However, payment of back wages is restricted to fifty (50) percent only.
10. At this stage, the learned Government Advocate placed reliance upon judgment of Apex Court in the case of Satish Chandra Yadav vs Union of India reported in (2022) 1 SCC 1. It was a case where at the
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(ASHISH SHROTI)
JUDGE
time of recruitment, the employer was held to have right to consider criminal antecedent of the candidate. However, the facts of present case are different where the petitioner was appointed and his appointment is cancelled for suppression of his criminal antecedent which has been found factually incorrect. Thus, the said judgment is not applicable on facts of present case.
Durgekar
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