Employer's duty to consider the nature of charges and factum of acquittal before discharging an employee based on non-disclosure of a pending criminal case.

JUDGMENT :

Raja Basu Chowdhury, J.

1. The present writ petition has been filed, inter alia, challenging the order dated 5th January, 2016, whereby, the appointment of the petitioner for the post of Constable in the Railway Protection Special Force had been forfeited, inter alia, on the ground of non-disclosure of a pending police case in the Attestation Form dated 17th June, 2014. The petitioner had participated in a recruitment process vide Employment Notice No. 01/2011, issued by the Railway Protection Force, for the post of Constable. Having become successful, the petitioner was called for training and was required to report to the 1st SSB ATC Debandra nagar, Sonitpur, Assam, on November, 2014, along with other successful candidates. It is the petitioner’s case that he had successfully completed his training and was posted at the 8th Battalion, Railway Protection Special Force CLW at Chittranjan where he also successfully completed his practical training. Unfortunately for the petitioner, he received a discharge letter dated 5th January, 2016, thereby, discharging him from enlistment for the post of Constable in Railway Protection Special Force, inter alia, on the ground of providing false declaration in the Attestation Form dated 17th June, 2014. Challenging the order of discharge the present writ petition has been filed on 22nd February, 2016.

2. It is the petitioner’s case that the respondents had mechanically dismissed the petitioner from service without taking note of the order of acquittal passed in the criminal case wherein the petitioner was a co-accused.

3. Mr. Majumder, learned advocate representing the petitioner, by drawing attention of this Court to the judgment and order dated 5th September, 2014, passed by the Additional Chief Judicial Magistrate, Baruipur, submits that since, the prosecution had failed to prove that the accused persons had committed any offence, the learned Additional Chief Judicial Magistrate was, inter alia, pleased to conclude that the accused persons are not guilty of the charges levelled against them. The petitioner was only a co-accused in connection with a false complaint lodged against the petitioner relating to a dispute with his neighbor and on the basis of the that the aforesaid criminal case was proceeded with.

4. By referring to the charges it is submitted that the charges are of trivial nature. Admittedly, none of the charges could be proved. The petitioner had, in effect, been honourably acquitted. The discharge/dismissal of service of the petitioner amounts to violation of Articles 14 and 19(1)(g) of the Constitution of India. As such, the suppression and/or misrepresentation complained of against the petitioner, should be treated to be a mere omission and nothing more. In support of the aforesaid contention, he has relied on the following judgments: -

(i) An unreported judgment delivered by a Coordinate Bench of this Court in the case of Sri Sukdeb Mandal v. Union of India & Ors., in WPA No. 28149 of 2015;

(ii) The unreported judgment delivered by a Division Bench of this Court in FMA No. 1434 of 2022 Arising out of WPA No. 28149 of 2015 in the case of Union of India & Ors. v. Sri Sukdeb Mandal;

(iii) Avtar Singh v. Union of India & Ors., reported in (2016) 8 SCC 471;

(iv) Mohammed Imran v. State of Maharashtra & Ors., reported in AIR 2018 SC 4895;

(v) Pawan Kumar v. Union of Inida & Anr., reported in 2022 SCC OnLine SC 532.

(vi) State of West Bengal & Ors. v. Mitul Kumar Jana, reported in 2023 SCC OnLine SC 1070.

5. Having regard to the aforesaid, it is submitted that the present writ petition should be allowed and the respondents should be directed to reinstate the petitioner in service by setting aside the order of discharge.

6. Per contra, Mr. Ghosh, learned advocate, appearing for the respondents, by placing before this Court the affidavit in opposition, submits that this is a case of deliberate and willful suppression of fact. The petitioner as on the date of filling up the Attesta