EX-CONST/DVR MUKESH KUMAR RAIGAR versus UNION OF INDIA & ORS

[2023] 1 S.C.R. 797

EX-CONST/DVR MUKESH KUMAR RAIGAR

UNION OF INDIA & ORS.

(Special Leave Petition (Civil) No. 10499 of 2022)

JANUARY 16, 2023

[AJAY RASTOGI AND BELA M. TRIVEDI, JJ.]

Service Law : Removal from service – Constable found guiltyof gross misconduct and indiscipline – Suppression of pendingcriminal litigation in the verification form submitted at the time ofappointment – Departmental inquiry – Order of removal from theservices – Single Judge of the High Court set aside the dismissalorder and directed the reinstatement of the constable – However,the Division Bench set aside the order – On appeal, held: Constablehas committed gross misconduct – There was deliberate suppressionof fact which was an aggravating circumstances – Force personnelare required to maintain discipline of the highest order and theinvolvement of the constable in such grave offences debarred himfrom the appointment – Appointing authorities have passed the orderof his removal from services after following the due process of lawand without malafides – Single Judge of High Court wronglyinterfered with the order of removal passed by the authorities, thus,the order passed by the Division Bench is upheld – CISF Rules,2001 – r. 36, 54.

Dismissing the Special Leave Petition, the Court

HELD : 1.1 The Single Bench of the High Court hadcommitted an error in interfering with the order passed by therespondents-authorities. The respondents-authorities had aftertaking into consideration the decision in case of Avtar Singhterminated the services of the petitioner holding inter-alia thatwhile the petitioner was appointed in CISF, criminal case waspending against him at the time of his enrolment in the force, buthe did not reveal the same and that there was deliberatesuppression of facts which was an aggravating circumstance. CISFbeing an armed force of Union of India, is deployed in sensitivesectors such as airports, ports, department of atomic energy,department of space, metro, power and steel, for internal security

[2023] 1 S.C.R.

Aduty etc., and therefore, the force personnel are required tomaintain discipline of the highest order; and that the involvementof the petitioner in such grave offences debarred him from theappointment. Such well-reasoned and well considered decisionof the respondent-authorities should not have been interferedby the Single Bench in exercise of its powers under Article 226Bof the Constitution, more particularly when there were noallegations of malafides or of non-observance of rules of naturaljustice or of breach of statutory rules were attributed against therespondent authorities. [Para 9][806-D-G]

1.2 The Division Bench of the High Court had rightly setCaside the order passed by the Single Bench, which had wronglyinterfered with the order of removal passed by the respondentauthorities against the petitioner. The petitioner having beenfound to have committed gross misconduct right at the thresholdof entering into disciplined force like CISF, and the respondentDauthorities having passed the order of his removal from serviceafter following due process of law and without actuated bymalafides, the court is not inclined to exercise its limitedjurisdiction under Article 136 of the Constitution. [Para 13][808-F-G]

EAvtar Singh v. Union of India, (2016) 8 SCC 471 :[2016] 7 SCR 445; Satish Chandra Yadav v. Union ofIndia, 2022 SCC OnLine SC 1300 – relied on.

Union of India & Ors. v. Methu Meda, (2022) 1 SCC1; Union of India v. Dilip Kumar Mallick, (2022) 6FSCALE 108, Pawan Kumar v. Union of India & Anr.,(2022) SCC OnLine SC 532, Rajasthan Rajya VidyutPrasaran Nigam Ltd. & Anr. v. Anil Kanwariya, (2021)10 SCC 136; Mohammed Imran v. State of Maharashtra& Ors., (2019) 17 SCC 696; State of Orissa & Ors. v.Bidyabhushan Mohapatra, AIR 1963 SC 779 : [1963]GSuppl. SCR 648; B.C. Chaturvedi v. Union of India &Ors., (1995) 6 SCC 749 : [1995] 4 Suppl. SCR 644;Om Kumar & Ors. v. Union of India, (2001) 2 SCC386 : [2000] 4 Suppl. SCR 693; Deputy GeneralManager (Appellate Authority) & Ors. v. Ajai KumarHSrivastava, (2021) 2 SCC 612 – referred to.

EX-CONST/DVR MUKESH KUMAR RAIGAR v. UNION OFINDIA & ORS.

Associated Provincial Picture Houses Ltd. v. WednesburyCorporation, [1948] 1 KB 223 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Special Leave Petition(Civil) No.10499 of 2022.

From the Judgment and Order dated 16.11.2021 of the High Courtof Judicature for Rajasthan Bench at Jaipur in D.B. Special Appeal WritNo.637 of 2021.

Ms. Asifa Rashid Mir, M.S. Khan, Mohd. Parvez Dabas, UzmiJameel Husain, Ms. Neha Khan, Ms. Zeba, Ms. Arushi Jain, Syed MehdiImam, Advs. for the Petitioner.

R. Bala Subramanian, Sr. Adv., P.V. Yogeswaran, MerusagarSamantaray, Nachiketa Joshi, Rajan Kumar Chourasia, Arvind KumarSharma, Advs. for the Respondents.

The Judgment of the Court was delivered by

BELA M. TRIVEDI, J.

1. The present special leave petition is directed against thejudgment and order dated 16.11.2021 passed by the High Court ofJudicature for Rajasthan Bench at Jaipur, whereby the Division Benchhas allowed the D.B. Special Appeal Writ No. 637 of 2021 filed by therespondents-Union of India (appellants before the Division Bench), andhas set aside the order dated 17.02.2021 passed by the Single Bench,

Awhich had allowed the Civil Writ Petition No. 17475 of 2018 filed by thepresent petitioner (respondent before the Division Bench).

2. The present petitioner was appointed on the post of constablein the CISF on 03.11.2007. In April, 2009 the petitioner received notice/Memorandum of charge under the Rule 36 of CISF Rules 2001B(hereinafter referred to as the “the said Rules”) from the office ofCommandant Discipline, CISF in which it was alleged that the petitionerat the time of submitting verification of his character certificate hadsuppressed the fact that he was involved in criminal case for the offenceunder sections 323, 324 and 341 of IPC in respect of which an FIRbeing No. 153/2003 was registered against him on 21.10.2003; and thatCon the Investigating Officer in the said proceedings having submitted thecharge-sheet before the concerned Court, the case was pending for trialbefore the said Court when the character certificate was submitted bythe petitioner to the CISF authorities. It was also stated therein thatsince the act of suppression of information regarding pendency of theDcriminal litigation in his character certificate filed along with theappointment letter, was under the category of gross misconduct andindiscipline, he was not eligible to be appointed in very disciplined policeforce i.e. CISF. Thereafter, disciplinary proceedings were initiated againstthe petitioner. During the course of disciplinary proceedings, the petitioneraccepted his mistake. The Commandant Discipline, CISF, keeping inEview the young age and future prospects of the petitioner, imposedpunishment of reduction of pay by one stage from Rs. 6320- 6070/- inthe pay band of Rs.5200-20,200/- with grade pay. However, on06.10.2009, the Deputy Inspector General (West Zone), Air Port HeadQuarter – Navi Mumbai – suo motu took the cognizance of the matterFrevising the order dated 11.07.2009 and remitted the matter back forfresh departmental enquiry against the petitioner invoking Rule 54 ofCISF Rules, 2001. The said departmental enquiry culminated into theremoval of the petitioner from service on 09.03.2010, against which thepetitioner had filed departmental appeal, however, the said appeal cameto be dismissed by the appellate authority vide the order dated 23.06.2010.GThe revision petition filed by the petitioner before the competent authorityassailing the said order dated 23.06.2010 also came to be dismissed bythe Revisional Authority vide the order dated 21.12.2010.

3. Being aggrieved by the said orders, passed by the variousauthorities of CISF, the petitioner filed writ petition being No. 8190 ofH

2012 before the High Court of Judicature for Rajasthan at Jaipur. TheSingle Bench vide order dated 16.02.2018 set aside the order of removalpassed against the petitioner and directed the petitioner to file detailedrepresentation before the appointing authority for reconsideration of hiscase in the context of the judgment of the Supreme Court in case ofAvtar Singh Vs. Union of India & Ors[1]and directed the appointingauthority to decide the representation of the petitioner by reasonedand speaking order with reference to the said judgment. The CommandantCISF Unit CSIA, Mumbai after considering the representation of thepetitioner in the light of the judgment in case of Avtar Singh (supra),held that the CISF being an Armed Force of Union of India, which isdeployed in sensitive sectors, the force personnel are required to maintaindiscipline of the highest order, and that the involvement of the petitionerin the grave offences debarred him from the appointment to such forceand, therefore, he was not found suitable for the appointment in CISFfor the post of constable/GD vide order dated 14.05.2018.4. The petitioner again filed writ petition being No. 17475/2018assailing the said order dated 14.05.2018. The Single Bench again setaside the said order and allowed the writ petition directing the respondentsto reinstate the petitioner in service with all consequential benefits videthe order dated 17.02.2021. The respondents filed the Special Writ Appealbefore the Division Bench, against the order passed by the Sigle Bench,which appeal came to be allowed by the Division Bench vide the impugnedorder.

5. Ms. Asifa Rashid Mir, learned counsel appearing for thepetitioner vehemently submitted that the petitioner was involved in acriminal case when he was hardly aged about 19 years and the saidcase had resulted into compromise between the parties. According toher, on the basis of the said compromise, the Trial Court had closed thecase on 21.11.2007, and the petitioner was appointed as constable inCISF on 03.11.2007. Relying upon the various decisions of this Courtand other High Courts, she further submitted that considering the natureof offence in which the petitioner was allegedly involved, the removalfrom service on the ground of non-disclosure of pendency of the saidcase could not be said to be grave misconduct attracting the harshpunishment of removal from service. The Division Bench of the HighCourt, runs the submissions of the counsel for the petitioner, should not

Ahave interfered with the well-reasoned order passed by the Single Benchwhich had found the involvement of the petitioner in case of trivialnature. According to her, even if deliberate suppression by the petitioneras alleged by the respondents was found to have taken place at the timeof filing the character certificate, lenient view should have been takenby the respondents considering his age and considering the fact that theBpetitioner had accepted his mistake.

6. The Senior Advocate Mr. R. Bala Subramanian, appearing forthe respondents however, taking the Court to the CISF Rules 2001, thecirculars applicable to all Central Armed Police Force (CAPF) includingthe CISF regarding the policy guidelines to be followed in respect of theCcandidates against whom criminal cases are pending vide OM dated01.02.2012, dealing with suppression of information or submitting falseinformation in the verification form, submitted that the CISF being verydisciplined police force and the post of constable being very sensitivepost, the petitioner who was found to be guilty of gross misconduct ofsuppressing the material fact of his involvement in the criminal case atDthe time of seeking appointment, could not have been continued in service,and that the Division Bench has rightly considered the facts of the caseand upheld the decision of the respondent authority, which may not beinterfered with.

7. In the instant case, both the learned counsels for the partiesEhave relied upon decision of this Court in Avtar Singh (supra) in whicha three-judge Bench emphasizing the need of verification of characterand antecedents of the person to be appointed in the government serviceand after considering the various previous judgments of this Court, hadsummarized the principles in para 38 which reads as under:

F“38. We have noticed various decisions and tried to explainand reconcile them as far as possible. In view of the aforesaiddiscussion, we summarise our conclusion thus:

38.1. Information given to the employer by candidateas to conviction, acquittal or arrest, or pendency of acriminal case, whether before or after entering intoGservice must be true and there should be no suppressionor false mention of required information.

38.2. While passing order of termination of services orcancellation of candidature for giving false information,the employer may take notice of special circumstancesHof the case, if any, while giving such information.

38.3. The employer shall take into consideration thegovernment orders/instructions/rules, applicable to theemployee, at the time of taking the decision.

38.4. In case there is suppression or false informationof involvement in criminal case where conviction oracquittal had already been recorded before filling of theapplication/verification form and such fact later comesto knowledge of employer, any of the following recoursesappropriate to the case may be adopted:

38.4.1. In case trivial in nature in which conviction hadbeen recorded, such as shouting slogans at young ageor for petty offence which if disclosed would not haverendered an incumbent unfit for post in question, theemployer may, in its discretion, ignore such suppressionof fact or false information by condoning the lapse.

38.4.2. Where conviction has been recorded in casewhich is not trivial in nature, employer may cancelcandidature or terminate services of the employee.

38.4.3. If acquittal had already been recorded in caseinvolving moral turpitude or offence of heinous/seriousnature, on technical ground and it is not case of cleanacquittal, or benefit of reasonable doubt has been given,the employer may consider all relevant facts availableas to antecedents, and may take appropriate decision asto the continuance of the employee.

38.5. In case where the employee has made declarationtruthfully of concluded criminal case, the employer stillhas the right to consider antecedents, and cannot becompelled to appoint the candidate.

38.6. In case when fact has been truthfully declared incharacter verification form regarding pendency of acriminal case of trivial nature, employer, in facts andcircumstances of the case, in its discretion, may appointthe candidate subject to decision of such case.

38.7. In case of deliberate suppression of fact withrespect to multiple pending cases such false information

by itself will assume significance and an employer maypass appropriate order cancelling candidature orterminating services as appointment of person againstwhom multiple criminal cases were pending may not beproper.

38.8. If criminal case was pending but not known to thecandidate at the time of filling the form, still it may haveadverse impact and the appointing authority would takedecision after considering the seriousness of the crime.

38.9. In case the employee is confirmed in service,holding departmental enquiry would be necessary beforepassing order of termination/removal or dismissal on theground of suppression or submitting false information inverification form.

38.10. For determining suppression or false informationattestation/verification form has to be specific, not vague.DOnly such information which was required to bespecifically mentioned has to be disclosed. If informationnot asked for but is relevant comes to knowledge of theemployer the same can be considered in an objectivemanner while addressing the question of fitness.However, in such cases action cannot be taken on basisEof suppression or submitting false information as to afact which was not even asked for.

38.11 Before person is held guilty of suppressio verior suggestio falsi, knowledge of the fact must beattributable to him”.

8. It may be noted that even after the guiding principles laid downin the case of Avtar Singh by the three-judge Bench, divergent viewswere expressed by the various benches of this Court. Therefore, thisCourt in case of Satish Chandra Yadav Vs. Union of India & Others.[2],after taking into consideration the inconsistent views taken in the casesGof Union of India & Ors. Vs Methu Meda[3]; Union of India vs. DilipKumar Mallick[4]; Pawan Kumar vs. Union of India & Anr.[5];

2 (2022) SCC Online SC 1300

3 (2022) 1 SCC 1

4 (2022) 6 Scale 108

5 (2022) SCC Online SC 532

Rajasthan Rajya Vidyut Prasaran Nigam Limited & Anr. vs. AnilKanwariya[6]; Mohammed Imran Vs. State of Maharashtra & Others[7];etc., further laid down following principles:

“89. The only reason to refer to and look into the variousdecisions rendered by this Court as above over period oftime is that the principles of law laid therein governing thesubject are bit inconsistent. Even after, the larger Benchdecision in the case of Avtar Singh (supra) different courtshave enunciated different principles.

90. In such circumstances, we undertook some exercise toshortlist the broad principles of law which should be madeapplicable to the litigations of the present nature. Theprinciples are as follows:

a) Each case should be scrutinised thoroughly by the publicemployer concerned, through its designated officials-moreso, in the case of recruitment for the police force, who areunder duty to maintain order, and tackle lawlessness,since their ability to inspire public confidence is bulwarkto society’s security. [See Raj Kumar (supra)]

b) Even in case where the employee has made declarationtruthfully and correctly of concluded criminal case, theemployer still has the right to consider the antecedents,and cannot be compelled to appoint the candidate. Theacquittal in criminal case would not automatically entitlea candidate for appointment to the post. It would be stillopen to the employer to consider the antecedents andexamine whether the candidate concerned is suitable andfit for appointment to the post.

c) The suppression of material information and making afalse statement in the verification Form relating to arrest,prosecution, conviction etc., has clear bearing on thecharacter, conduct and antecedents of the employee. If it isfound that the employee had suppressed or given falseinformation in regard to the matters having bearing on

6 (2021) 10 SCC 136

7 (2019) 17 SCC 696

Ahis fitness or suitability to the post, he can be terminatedfrom service.

d) The generalisations about the youth, career prospectsand age of the candidates leading to condonation of theoffenders’ conduct, should not enter the judicial verdict andBshould be avoided.

e) The Court should inquire whether the Authorityconcerned whose action is being challenged acted mala fide.

f) Is there any element of bias in the decision of theAuthority?C

g) Whether the procedure of inquiry adopted by theAuthority concerned was fair and reasonable?”

9. Having regard to the guiding principles, laid down in case ofAvtar Singh (supra) and in case of Satish Chandra Yadav (supra),this Court has no hesitation in holding that the Single Bench of the HighDCourt had committed an error in interfering with the order passed by therespondents-authorities. The respondents-authorities had after taking intoconsideration the decision in case of Avtar Singh terminated the servicesof the petitioner holding inter-alia that while the petitioner was appointedin CISF, criminal case was pending against him at the time of his

Eenrolment in the force, but he did not reveal the same and that there wasdeliberate suppression of facts which was an aggravating circumstance.It was also held that CISF being an armed force of Union of India, isdeployed in sensitive sectors such as airports, ports, department of atomicenergy, department of space, metro, power and steel, for internal security

duty etc., and therefore, the force personnel are required to maintainFdiscipline of the highest order; and that the involvement of the petitionerin such grave offences debarred him from the appointment. Such well-reasoned and well considered decision of the respondent-authoritiesshould not have been interfered by the Single Bench in exercise of itspowers under Article 226 of the Constitution, more particularly whenGthere were no allegations of malafides or of non-observance of rules ofnatural justice or of breach of statutory rules were attributed against therespondent authorities.

10. The Constitution Bench, in case of State of Orissa & Othersvs. Bidyabhushan Mohapatra[8]had observed way back in 1963 that

H8 AIR 1963 SC 779

having regard to the gravity of the established misconduct, the punishingauthority had the power and jurisdiction to impose punishment. The penaltywas not open to review by the High Court under Article 226. three-judge Bench in case of B.C. Chaturvedi vs. Union of India & Ors[9]had also held that judicial review is not an appeal from decision but areview of the manner in which the decision is made. Power of judicialreview is meant to ensure that the individual receives fair treatment andnot to ensure that the conclusion which the authority reaches is necessarilycorrect in the eye of the Court. When an inquiry is conducted on thecharges of misconduct by public servant, the Court or Tribunal wouldbe concerned only to the extent of determining whether the inquiry washeld by competent officer or whether the rules of natural justice andstatutory rules were complied with.

11. In Om Kumar & Others vs. Union of India[10]this Court hadalso after considering the Wednesbury Principles and the doctrine ofproportionality held that the question of quantum of punishment indisciplinary matters is primarily for the disciplinary authority, and thejurisdiction of the High Courts under Article 226 of the Constitution or ofthe Administrative Tribunals is limited and is confined to the applicabilityof one or the other of the well-known principles known as “WednesburyPrinciples”[11] namely whether the order was contrary to law, or whetherrelevant factors were not considered, or whether irrelevant factors wereconsidered or whether the decision was one which no reasonable personcould have taken.

12. Again, three-judge Bench in case of Deputy GeneralManager (Appellate Authority) & Ors. vs. Ajai Kumar Srivastava[12]circumscribing the power of judicial review by the constitutional courtsheld as under:

“24. It is thus settled that the power of judicial review, ofthe constitutional courts, is an evaluation of the decision-making process and not the merits of the decision itself. Itis to ensure fairness in treatment and not to ensure fairnessof conclusion. The court/tribunal may interfere in theproceedings held against the delinquent if it is, in anymanner, inconsistent with the rules of natural justice or inviolation of the statutory rules prescribing the mode of9 (1995) 6 SCC 74910 (2001) 2 SCC 38611 Associated Provincial Picture Houses Ltd. vs. Wednesbury Corporation [1948] 1KB 22312 (2021) 2 SCC 612

ABC

Aenquiry or where the conclusion or finding reached by thedisciplinary authority is based on no evidence. If theconclusion or finding be such as no reasonable person wouldhave ever reached or where the conclusions uponconsideration of the evidence reached by the disciplinaryauthority are perverse or suffer from patent error on theBface of record or based on no evidence at all, writ ofcertiorari could be issued. To sum up, the scope of judicialreview cannot be extended to the examination ofcorrectness or reasonableness of decision of authority asa matter of fact.

C25. xxxxxxx

26. xxxxxxx

27. xxxxxxxx

28. The constitutional court while exercising its jurisdictionof judicial review under Article 226 or Article 136 of theDConstitution would not interfere with the findings of factarrived at in the departmental enquiry proceedings exceptin case of mala fides or perversity i.e. where there is noevidence to support finding or where finding is suchthat no man acting reasonably and with objectivity couldhave arrived at those findings and so long as there is someEevidence to support the conclusion arrived at by thedepartmental authority, the same has to be sustained.”

13. In view of the afore-stated legal position, we are of the opinionthat the Division Bench of the High Court had rightly set aside the orderpassed by the Single Bench, which had wrongly interfered with the orderFof removal passed by the respondent authorities against the petitioner.The petitioner having been found to have committed gross misconductright at the threshold of entering into disciplined force like CISF, and therespondent authorities having passed the order of his removal from serviceafter following due process of law and without actuated by malafides,the court is not inclined to exercise its limited jurisdiction under ArticleG136 of the Constitution.

14. In that view of the matter the SLP is dismissed.

Nidhi Jain(Assisted by : Bhavyata Kapoor and Shashwat Jain, LCRAs)

Petition dismissed.