EX CONST/ DVR MUKESH KUMAR RAIGAR vs. UNION OF INDIA

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO. 10499 OF 2022 EX-CONST/DVR MUKESH KUMAR RAIGAR .... PETITIONER VERSUS UNION OF INDIA & ORS. .... RESPONDENTS J U D G M E N T BELA M. TRIVEDI, J. 1. The present special leave petition is directed against the judgment and order dated 16.11.2021 passed by the High Court of Judicature for Rajasthan Bench at Jaipur, whereby the Division Bench has allowed the D.B. Special Appeal Writ No. 637 of 2021 filed by the respondents-Union of India (appellants before the Division Bench), and has set aside the order dated 17.02.2021 passed by the Single Bench, which had allowed the Civil Writ Petition No. 17475 of 2018 filed by the present petitioner (respondent before the Division Bench). 2. The present petitioner was appointed on the post of constable in the Signature Not Verified Digitally signed by Ashwani Kumar Date: 2023.01.16 17:02:30 IST Reason: CISF on 03.11.2007. In April, 2009 the petitioner received a 1 notice/Memorandum of charge under the Rule 36 of CISF Rules 2001 (hereinafter referred to as the “the said Rules”) from the office of Commandant Discipline, CISF in which it was alleged that the petitioner at the time of submitting verification of his character certificate had suppressed the fact that he was involved in a criminal case for the offence under sections 323, 324 and 341 of IPC in respect of which an FIR being No. 153/2003 was registered against him on 21.10.2003; and that on the Investigating Officer in the said proceedings having submitted the charge-sheet before the concerned Court, the case was pending for trial before the said Court when the character certificate was submitted by the petitioner to the CISF authorities. It was also stated therein that since the act of suppression of information regarding pendency of the criminal litigation in his character certificate filed along with the appointment letter, was under the category of gross misconduct and indiscipline, he was not eligible to be appointed in a very disciplined police force i.e. CISF. Thereafter, disciplinary proceedings were initiated against the petitioner. During the course of disciplinary proceedings, the petitioner accepted his mistake. The Commandant Discipline, CISF, keeping in view the young age and future prospects of the petitioner, imposed 2 punishment of reduction of pay by one stage from Rs. 6320- 6070/- in the pay band of Rs.5200-20,200/- with grade pay. However, on 06.10.2009, the Deputy Inspector General (West Zone), Air Port Head Quarter – Navi Mumbai – suo motu took the cognizance of the matter revising the order dated 11.07.2009 and remitted the matter back for fresh departmental enquiry against the petitioner invoking Rule 54 of CISF Rules, 2001. The said departmental enquiry culminated into the removal of the petitioner from service on 09.03.2010, against which the petitioner had filed a departmental appeal, however, the said appeal came to be dismissed by the appellate authority vide the order dated 23.06.2010. The revision petition filed by the petitioner before the competent authority assailing the said order dated 23.06.2010 also came to be dismissed by the Revisional Authority vide the order dated 21.12.2010. 3. Being aggrieved by the said orders, passed by the various authorities of CISF, the petitioner filed a writ petition being No. 8190 of 2012 before the High Court of Judicature for Rajasthan at Jaipur. The Single Bench vide order dated 16.02.2018 set aside the order of removal passed against the petitioner and directed the petitioner to file a detailed representation before the appointing authority for reconsideration of his case in the context of the judgment of the 3 1 Supreme Court in case of Avtar Singh Vs. Union of India & Ors and directed the appointing authority to decide the representation of the petitioner by a reasoned and speaking order with reference to the said judgment. The Commandant CISF Unit CSIA, Mumbai after considering the representation of the petitioner 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 is deployed in sensitive sectors, the force personnel are required to maintain discipline of the highest order, and that the involvement of the petitioner in the grave offences debarred him from the appointment to such force and, therefore, he was not found suitable for the appointment in CISF for the post of constable/GD vide order dated 14.05.2018. 4. The petitioner again filed a writ petition being No. 17475/2018 assailing the said order dated 14.05.2018. The Single Bench again set aside the said order and allowed the writ petition directing the respondents to reinstate the petitioner in service with all consequential benefits vide the order dated 17.02.2021. The respondents filed the Special Writ Appeal before the Division Bench, against the order passed by the Sigle Bench, which appeal came to be allowed by the Division Bench vide the impugned order. 1 (2016) 8 SCC 471 4 5. Ms. Asifa Rashid Mir, learned counsel appearing for the petitioner vehemently submitted that the petitioner was involved in a criminal case when he was hardly aged about 19 years and the said case had resulted into a compromise between the parties. According to her, on the basis of the said compromise, the Trial Court had closed the case on 21.11.2007, and the petitioner was appointed as constable in CISF on 03.11.2007. Relying upon the various decisions of this Court and other High Courts, she further submitted that considering the nature of offence in which the petitioner was allegedly involved, the removal from service on the ground of non-disclosure of pendency of the said case could not be said to be a grave misconduct attracting the harsh punishment of removal from service. The Division Bench of the High Court, runs the submissions of the counsel for the petitioner, should not have interfered with the well-reasoned order passed by the Single Bench which had found the involvement of the petitioner in a case of trivial nature. According to her, even if a deliberate suppression by the petitioner as alleged by the respondents was found to have taken place at the time of filing the character certificate, a lenient view should have been taken by the respondents 5 considering his age and considering the fact that the petitioner had accepted his mistake. 6. The Senior Advocate Mr. R. Bala Subramanian, appearing for the respondents however, taking the Court to the CISF Rules 2001, the circulars applicable to all Central Armed Police Force (CAPF) including the CISF regarding the policy guidelines to be followed in respect of the candidates against whom criminal cases are pending vide OM dated 01.02.2012, dealing with suppression of information or submitting false information in the verification form, submitted that the CISF being very disciplined police force and the post of constable being very sensitive post, the petitioner who was found to be guilty of gross misconduct of suppressing the material fact of his involvement in the criminal case at the time of seeking appointment, could not have been continued in service, and that the Division Bench has rightly considered the facts of the case and upheld the decision of the respondent authority, which may not be interfered with. 7. In the instant case, both the learned counsels for the parties have relied upon decision of this Court in Avtar Singh (supra) in which a three-judge Bench emphasizing the need of verification of character and antecedents of the person to be appointed in the government service and after considering the various previous judgments of this 6 Court, had summarized the principles in para 38 which reads as under:

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2 (2022) SCC Online SC 1300 3 (2022) 1 SCC 1 4 (2022) 6 Scale 108 5 (2022) SCC Online SC 532 6 (2021) 10 SCC 136 7 (2019) 17 SCC 696 9 decision in the case of Avtar Singh (supra) different courts have enunciated different principles. 90. In such circumstances, we undertook some exercise to shortlist the broad principles of law which should be made applicable to the litigations of the present nature. The principles are as follows: a) Each case should be scrutinised thoroughly by the public employer concerned, through its designated officials-more so, in the case of recruitment for the police force, who are under a duty to maintain order, and tackle lawlessness, since their ability to inspire public confidence is a bulwark to society's security. [See Raj Kumar (supra)] b) Even in a case where the employee has made declaration truthfully and correctly of a concluded criminal case, the employer still has the right to consider the antecedents, and cannot be compelled to appoint the candidate. The acquittal in a criminal case would not automatically entitle a candidate for appointment to the post. It would be still open to the employer to consider the antecedents and examine whether the candidate concerned is suitable and fit for appointment to the post. c) The suppression of material information and making a false statement in the verification Form relating to arrest, prosecution, conviction etc., has a clear bearing on the character, conduct and antecedents of the employee. If it is found that the employee had suppressed or given false information in regard to the matters having a bearing on his fitness or suitability to the post, he can be terminated from service. d) The generalisations about the youth, career prospects and age of the candidates leading to condonation of the offenders' conduct, should not enter the judicial verdict and should be avoided. e) The Court should inquire whether the Authority concerned whose action is being challenged acted mala fide. 10

11 petitioner in such grave offences debarred him from the appointment. Such a well-reasoned and well considered decision of the respondent-authorities should not have been interfered by the Single Bench in exercise of its powers under Article 226 of the Constitution, more particularly when there were no allegations of malafides or of non-observance of rules of natural justice or of breach of statutory rules were attributed against the respondent authorities.

8 Bidyabhushan Mohapatra had observed way back in 1963 that having regard to the gravity of the established misconduct, the punishing authority had the power and jurisdiction to impose punishment. The penalty was not open to review by the High Court

9 vs. Union of India & Ors had also held that judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. When an inquiry is conducted on the charges of 8 AIR 1963 SC 779 9 (1995) 6 SCC 749 12 misconduct by a public servant, the Court or Tribunal would be concerned only to the extent of determining whether the inquiry was held by a competent officer or whether the rules of natural justice and statutory rules were complied with.

after considering the Wednesbury Principles and the doctrine of proportionality held that the question of quantum of punishment in disciplinary matters is primarily for the disciplinary authority, and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or the other of the well-known principles known 11 as “Wednesbury Principles” namely whether the order was contrary to law, or whether relevant factors were not considered, or whether irrelevant factors were considered or whether the decision was one which no reasonable person could have taken.

12 (Appellate Authority) & Ors. vs. Ajai Kumar Srivastava 10 (2001) 2 SCC 386 11 Associated Provincial Picture Houses Ltd. vs. Wednesbury Corporation [1948] 1 KB 223 12 (2021) 2 SCC 612 13

14 13. In view of the afore-stated legal position, we are of the opinion that the Division Bench of the High Court had rightly set aside the order passed by the Single Bench, which had wrongly interfered with the order of removal passed by the respondent authorities against the petitioner. The petitioner having been found to have committed gross misconduct right at the threshold of entering into disciplined force like CISF, and the respondent authorities having passed the order of his removal from service after following due process of law and without actuated by malafides, the court is not inclined to exercise its limited jurisdiction under Article 136 of the Constitution. 14. In that view of the matter the SLP is dismissed. . . ………………………. J. [AJAY RASTOGI] …..................................J. [BELA M. TRIVEDI] NEW DELHI 16.01.2023 15