Point of Law: Service matter - Criminal Cases pending - Order of removal - Quash of - While passing order of termination for giving false information, the employer may take note of special circumstances of case if any, while giving such information and should take into consideration government Orders/Instructions/Rules applicable to employee at the time of taking decision.

JUDGMENT :

1. This petition has been filed praying for quashing the order of removal dated 09.10.2007 under Annexure-2 series passed by the Commandant, 4th O.S.A.P (S.S) Battalion, Malkangiri (opposite party No.3) by which the petitioner was removed from the service. The petitioner has also prayed that Director General of Police, Odisha (opposite party No.2) be directed to reinstate him in service in view of judgment dated 05.09.2012 passed by the learned J.M.F.C., Nabarangpur in G.R. Case No.409 of 2004/T.R. No.146 of 2011 under Annexure-4 series.

2. The case of the petitioner is that he was selected after undergoing a process of selection and appointed as a Sepoy on 25.12.2006 vide Annexure-1. Thereafter while undergoing training, opposite party No.3 removed him from services vide order dated 09.10.2007 vide Annexure-2 series as during verification of character and antecedents, it was found that he was involved in a criminal case, which was then sub-judice. On 18.10.2007 vide Annexure-3, the petitioner filed a representation before opposite party No.3 praying for reinstatement as he was not actually involved in the said case though his name found place in the F.I.R. But nothing was done on the same. Thereafter vide judgment dated 05.09.2012 under Annexure-4 series as indicated above, the petitioner along with all other accused persons were acquitted. In such background, it is the case of the petitioner that his removal from service on the ground of involvement in the criminal case is illegal and he be reinstated in service.

In reply filed by the opposite party No.3, a stand has been taken that the present petition is barred by limitation as impugned order dated 09.10.2007 under Annexre-2 series has been challenged in 2012. Secondly, his stand is that in the appointment order under Annexure-1, it was specifically mentioned that appointment of the petitioner was provisional subject to satisfactory verification of character and antecedents and in case of any falsity/adverse report; the appointee would be summarily discharged from services. During verification of character and antecedents, it was revealed that the petitioner was involved in a criminal case i.e. G.R. Case No.409 of 2004/T.R. No.146 of 2011. This information was suppressed by the petitioner and accordingly he was rightly removed under Rule 673(c) r/w 668 of Orissa Police Rules. It is also his stand that opposite party No.3 has never received the representation under Annexure-3.

3. Mr. Das, learned counsel for the petitioner submitted that since the petitioner was not actually involved in the case and since such a stand has been fortified by the judgment of acquittal under Annexure-4 series, therefore in the application/verification form, he had stated accordingly that no criminal case was pending against him. Now since the petitioner has been acquitted in the criminal case, the impugned order of removal be set aside. In this context, he relied on the decisions of the Supreme Court rendered in Commissioner of Police & others vs. Sandeep Kumar reported in (2011) 4 S.C.C. 644, Ram Kumar Vs. State of U.P and others, reported in A.I.R. 2011 SC 2903 and in Avtar Singh Vs. Union of India reported in A.I.R. 2016 S.C. 3598 and decision of Calcutta High Court rendered in Bibrata Biswas vs. Union of India reported in A.I.R. ONLINE 2019 CAL 796. He also submitted that since the petitioner was a Sepoy, Orissa Police Rules under which the removal order has been passed, have no application to him as service conditions of Sepoys are governed by Orissa Special Armed Police Act, 1946, Orissa Special Armed Police Rules, 1953 and the Orissa Special Armed Police Battalion and Orissa State Armed Police (Special Security) Battalion Service (Method of Recruitment and Conditions of Service of Sepoys) Order, 2006, “for short” “2006 Order”. Since he has not been removed under any of the statutes indicated above, he reiterated that the order of removal be set aside and he be reinstated in servic