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2007(1) JLJ 12
A.K. Patnaik, C.J. and P.K. Jaiswal, J.
Union of India and others v. Hariom
Writ Petition No. 637 of 2001 (Gwalior): against the order of
Central Administrative Tribunal, Jabalpur, passed in
OA No. 469 of 1994; Decided on 2.11.2006.
The respondent Hariom was employed in termporary capacity in BSF Academy, Tekanpur on 16.12.1984 He was arrested in connection with the theft of one rifle by the police on 24.6.1985. Since he had not disclosed about the pendency of the aforesaid criminal case at the time of his appointment, his services were terminated by the Director of the BSF Academy on 16.8.1995. [Para 2
Held : There was no question in the verification roll as to whether any criminal case was pending against a candidate. As indicated above, the only question, i.e., question No.9, required an information from a candidate as to whether he had been convicted by the Court of any Offence and the respondent had given correct information that he has not been convicted by the Court of offence by using the word ‘Nil‘.
In the last portion of the certificate, the respondent was required to certify that he was not aware of any circumstance which might impair fitness for employment under Government. The respondent who was an illiterate scheduled caste person obviously is not expected to know as to which circumstance might impair fitness for employment under Government. It is for the authorities proposing to appoint a candidate as Safai Karmchari to indicate clearly in the-different questions in the verification roll the circumstances which might impair fitness for employment under Government by putting a question in that regard in the verification roll. No question whatsoever was included in the verification roll as to whether, a criminal case was pending against a candidate and hence, the circumstance that a criminal case was pending against a candidate and had not ended in conviction, presumably was not treated as a circumstance which would impair fitness for employment under Government. [Paras 8 & 9
In our considered opinion, the Tribunal was right in coming to the conclusion. that the respondent was under no obligation to narrate all facts regarding the pendency. of a criminal case and his omission to do so does not amount to, suppression or concealment of any material information. Moreover, although subsequently conviction of the trial Court ended in acquittal in the appeal, the fact that the respondent was acquitted in the criminal case ultimately is a relevant factor for the Court to take into consideration for deciding whether the order of removal should be sustained or should be set-aside. There was nothing wrong for the Tribunal to have taken this fact of exoneration of the respondent of the charges in a criminal case together with all other facts for deciding to set aside the order of removal passed against him. 2003(1) JLJ 403 (SC) and (2005)7 SCC 177 distinguished. [Para 12
(2) Services (Temporary Services) Rules, 1965 (Central) -- R.5(1) -- termination with bona fide belief -- criminal case pending on date of termination -- no work performed since date of termination till order of re-instatement -- employer should not be burdened to pay any back wages. [Para 14
¼1½ lsok ¼vLFkk;h lsok½ fu;e] 1965 ¼dsUnzh;½ && fu- 5¼1½ && lsok ls gVk;k tkuk && lR;kiu iath Hkjs tkus ds fnukad dks deZpkjh fdlh vijk/k ds fy, fl)nks"k ugha && nkafMd ekeys dk yacu izdV fd;k tkk visf{kr ugha && deZpkjh nks"keqDr Hkh gks x;k && lsok ls gVk;k tkuk Bhd&gh vikLrA
izR;FkhZ gfjvkse~ lhek lqj{kk cy vdkneh] Vsduiqj esa 16-12-1984 dks vLFkk;h :i ls fu;qDr fd;k x;k FkkA ,d jkbQy dh pksjh ds laca/k esa og iqfyl }kjk 24-6-1985 dks fxj¶rkj fd;k x;k FkkA D;kasfd mlus fu;qfDr ds le; iwoksZDr nkfaMd ekeyk yafcr gksus ds ckjs esa izdV ugha fd;k Fkk] lhek lqj{kk cy vdkneh funs‘kd }kjk 16-8-1995 dks mldh lsok lekIr dj nh xbZA ¿ iSjk 2À
vfHkfu/kkZfjr % D;k dksbZ nkafMd ekeyk vH;FkhZ ds fo#) yafcr gS] bl ckjs esa lR;kiu iath esa dksbZ iz‘u ugha FkkA ;Fkk iwoZ minf‘kZr] vH;FkhZ ls ,dek= iz‘u vFkkZr~ iz‘u Ø- 9 }kjk bl ckjs esa tkudkjh visf{kr Fkh fd D;k nkafMd U;k;ky; }kjk fdlh vijk/k dk fl)nks"k Bgjk;k x;k gS vkSj izR;FkhZ us ‘‘kCn *fuy* dk iz;ksx djrs gq, lgh tkudkjh nh Fkh fd og nkafMd U;k;ky; }kjk fl)nks"k ugha Bgjk;k x;k gSA
izek.ki= ds vafre Hkkx esa izR;FkhZ }kjk ;g izekf.kr fd;k tkuk visf{kr Fkk fd og fdlh ,slh ifjfLFkfr ls voxr ugha Fkk ftlls ljdkj ds v/khu fu;kstu ds fy, mi;qDrrk dks gkfu dh laHkkouk gksA izR;FkhZ ls tks ,d vf‘kf{kr vuqlwfpr tkfr dk O;fDr gS] LI"Vr% bl ckjs esa tkudkjh dh vis{kk ugha dh tk ldrh fd fdl ifjfLFkfr ls ljdkj ds v/khu fu;kstu ds fy, mi;qDrrk dh gkfu dh laHkkouk gks ldrh gSA lR;kiu iath esa bl ckjs esa iz‘u varfoZ"V dj ds] lR;kiu iath esa fofHkUu iz‘uksa esa og ifjfLFkfr;k¡ Li"Vr% minf‘kZr djus dk drZO; lQkbZ deZpkjh dh Hkk¡fr fu;qfDr dh izLrkouk djus okys izkf/kdkfj;ksa dk gS fd ftuls ljdkj ds v/khu fu;kstu ds fy, mi;qDrrk dh gkfu dh laHkkouk gks ldrh gSA bl ckjs esa fd D;k vH;FkhZ ds fo#) dksbZ nkafMd ekeyk yafcr gS] lR;kiu iath esa dksbZ Hkh iz‘u varfoZ"V ugha fd;k x;k Fkk vkSj blfy, ;g ifjfLFkfr fd vH;FkhZ ds fo#) dksbZ nkafMd ekeyk yafcr gS vkSj og nks"kflf) esa ifj.kkfer ugha gqvk gS] vuqekur% ,slh ifjfLFkfr ugha ekuh xbZ nks"kflf) eas ifj.kkfer ugha gqvk gS] vuqekur% ,slh ifjfLFkfr ugha ekuh xbZ ftlls ljdkj ds v/khu fu;kstu ds fy, mi;qDrrk dh gkfu laHkkfor gksA ¿ iSjk 8 ,oa 9À
gekjh lqfopkfjr jk; esa] vf/kdj.k us ;g fu"d"kZ Bhd&gh fudkyk fd nkafMd ekeys esa yacu ds ckjs esa leLr rF;ksa ds o.kZu ds fy, izR;FkhZ ck/;k/khu ugha Fkk ,slk ugha fd, tkus esa mldk yksi] dksbZ rkfRod tkudkjh nckus ;k fNikus ds leku ugha gSA blds vfrfjDr] ;|fi fopkj.k U;k;ky; }kjk fl)nks"k Bgjk;k tkuk var eas vihy esa nks"keqfDr esa lekIr gqvk] ;g rF; fd izR;FkhZ nkafMd ekeys esa varr% nks"keqDr gqvk Fkk] U;k;ky; }kjk ;g fofuf‘pr fd, tkus esa fopkj fd, tkus ds fy, lqlaxr dkjd gS fd lsok ls gVk, tkus dk vkns‘k dk;e j[kk tk, vFkok vikLr fd, tk,A mlds fo#) ikfjr lsok ls gVk, tkus ds vkns‘k dh vikfLr fofuf‘pr fd, tkus esa] vU; leLr rF;ks ds lkFk nkafMd ekeys es vkjksiksa ls izR;FkhZ dh foeqfDr ds rF; ij fopkj djus es vf/kdj.k us dksbZ xyrh ugha dhA 2003 ¼1½ ts ,y ts 403 ¼mPpre U;k-½ rFkk 2005¼7½ ,l lh lh 177 izHksfnrA ¿ iSjk 12À
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Patnaik, C.J.-- 1. This is a petition under Article 227 of the Constitution of India against the order dated 9th December, 2000 passed by Central Administrative Tribunal, Jabalpur Bench in OA No.469 of 1994.
2. The facts briefly stated, are that the respondent Harlom was employed in termporary capacity in BSF Academy, Tekanpur on 16.12.1984. He was arrested in connection with the theft of one rifle by the police on 24.6.1985. Since he had not disclosed about the pendency of the aforesaid criminal case at the time of his appointment, his services were terminated by the Director of the BSF Academy on 16.8.1995 under rule 5(1) of the Central Services (Temporary Services) Rules, 1965.
Aggrieved by the said order dated 16.8.1985 terminating his services, respondent filed an OA No.296 of 1988 before Central Administrative Tribunal, Jabalpur Bench, and after hearing parties, the Tribunal set aside the order of termination by its order dated 18.8.1989 and directed the petitioner to pass fresh order after holding regular departmental enquiry. In compliance of the said order of Tribunal, a departmental enquiry was held and after completion of departmental enquiry, the disciplinary authority passed an order on 11.12.1993 removing the respondent from service. The respondent filed an appeal before the appellate authority against the said order of removal and the appellate authority remanded the case back for further enquiry. The respondent then filed OA No.174 of 1993 before Jabalpur Bench of the Tribunal and the Tribunal disposed of the said OA directing that the departmental proceedings be completed within a stipulated time. Thereafter, the enquiry was concluded and order, dated 11.12.1993 was passed by the disciplinary authority terminating services of the respondent. The respondent went up in appeal but the appellate authority confirmed the said order of termination and dismissed the appeal by order dated 24.2.1999. Thereafter, the respondent filed OA No.469 of 1999 before the Jabalpur Bench of the Tribunal and by the impugned order dated 9th December 2000, the Tribunal set aside the order of disciplinary authority removing respondent from service as well as the impugned order of the appellate authority confirming the said order of removal and directed the petitioners to reinstate the respondent within two months. By the impugned order dated 9th December 2000, the Tribunal also directed that the respondent be paid 50% back-wages from the date of removal to the date of reinstatement and a fresh order be passed for treatment of the period from 17.8.1985 to 17.8.1989 in accordance with the rules.
3. Mr. T.C. Singhal learned counsel for the petitioners submitted that the respondent was appointed in temporary capacity and under rule 5 (1) of the Central Services (Temporary Services) Rules, 1965 petitioners have a right to terminate the services of the respondent at any time and therefore, in accordance with rule 5(1) of the Central Services (Temporary Services) Rules, 1965, petitioners had terminated services of the respondent by order dated 24.6.1985. He vehemently submitted that this aspect of the matter has not been considered by the Tribunal in the impugned order dated 9th December 2000 passed in OA No.469 of 1994.
4. We find on reading of the order dated 9th December 2000 passed in OA No.469 of 1994 that the order of termination dated 24.6.1985 passed by the petitioners under rule 5(1) of the Central Services (Temporary Services) Rules, 1965 had already been challenged by the respondent before Tribunal in OA No.296 of 1988 and after hearing learned counsel for the parties, the Tribunal by order dated 18.8.1989 passed in OA No.296 of 1988 set aside the order of termination with the direction to the petitioners to pass fresh order after holding regular departmental enquiry. The order dated 18.8.1989 passed by the Tribunal in OA No.296 of 1988 has not been challenged by the petitioners either before the High Court or before the Supreme C
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