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Calcutta High Court (Appellete Side)
Sri Partha Biswas vs Union Of India Others on 13 February, 2024
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
APPELLATE SIDE
Present:
The Hon’ble Justice Tapabrata Chakraborty
The Hon’ble Justice Partha Sarathi Chatterjee
FMA 982 of 2023
with
IA No. CAN 1 of 2023
Sri Partha Biswas
-Versus-
Union of India Others
For the Appellant : Mr. Pritam Chowdhury,
Mr. Dipankar Saha.
For the Respondents : Mr. Saikat Basu.
Ms. Ananya Adhikary.
Hearing is concluded on : 18th January, 2024.
Judgment On : 13th February, 2024.
Tapabrata Chakraborty, J.
1. The present appeal has been preferred against a judgment dated
19th September, 2023 passed by the learned Single Judge in a writ petition,
preferred by one Partha Biswas (in short, Partha), being WPA 10531 of 2021
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challenging inter alia an order of discharge dated 26th February, 2021
passed by the respondent no.4.
2. Shorn of unnecessary details, the facts are that Partha participated
in a selection process for appointment to the post of Constable (Band) under
the Railway Protection Force (hereinafter referred to as RPF). He emerged to
be successful and submitted the attestation form on 14th March, 2020.
Thereafter, he was sent for basic training on 7th December, 2020 and upon
successful completion of the same, while he was undergoing further
professional training at Police Training Academy in Jaipur, he was abruptly
released from such training vide memo dated 9th April, 2021. Subsequent
thereto, he was served with an order of discharge dated 26th February, 2021
issued by the respondent no.4 alleging that he had suppressed factual
information in the attestation form and in a self-declaration dated 31st
December, 2020 and referring to a report dated 14th January, 2021 of the
Deputy Inspector General of Police as sent by the District Magistrate vide
memo dated 9th February, 2021. Challenging the discharge order a legal
notice was sent to the respondent no.4 on 11th March, 2021 and Partha also
submitted an application under the provisions of the Right to Information
Act, 2005 on 21st April, 2021. In response thereto, he was supplied the
documents, as sought for. Thereafter, Partha submitted a representation
dated 22nd April, 2021 through his learned advocate to the respondent no.4
for reinstatement stating inter alia that due to a bona fide mistake the
particulars of the pending criminal case were not furnished. The said
criminal case being Kalna Police Station Case No.563/16 dated 3rd
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December, 2016 under Section 498A/307/379/34 of IPC was registered on
the basis of a complaint lodged by Partha’s aunt, namely, Sujata Sarkar and
upon completion of investigation, charge sheet dated 31st July, 2021 was
submitted under Section 498A/323/34 of IPC.
3. Mr. Chowdhury, learned advocate appearing for appellant/Partha
submits that there was a bona fide mistake on the part of the appellant in
answering the question as to whether he had been ever prosecuted as ‘No’ in
clause 15 (i) (c) of the attestation form and in not furnishing the number of
the criminal case which he had stated to be pending under clause 15 (i) (d)
though the nature of pending criminal case was disclosed by him under
clause 15 (ii) of the attestation form stating that ‘the troubles of my family
have been falsified and I am innocent. Case pending’. For such omission,
the employer could not have arbitrarily discharged him from service. He
was of a tender age on the date of the alleged incident. He along with his
family members were illegally roped in. No specific overt act was attributed
to him in the complaint and he also did not suffer incarceration. The order
sheets of the said criminal case would reveal that not even a single witness
has been examined and the matter is pending for more than five years.
Without considering such facts, the respondent no. 4 in an arbitrary
manner passed the order of discharge.
4. He argues that Partha had neither given any false information nor
had he suppressed any material fact. The learned Judge erred in law in
observing that ‘mere admission of pendency of a criminal case without
disclosing the particulars thereof is nothing but a deliberate act on the part of
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the petitioner not to disclose the factual information about the pending
criminal case for reasons best known to him’ without taking into
consideration the fact that in clause 15 (ii) of the attestation form, he
categorically disclosed the nature of the case stating that ‘the troubles of my
family have been falsified and I am innocent. Case pending’.
5. He argues that the learned Judge ought to have appreciated that
the respondent no. 4 in the order of discharge erroneously arrived at a
finding that the appellant had suppressed the factual information of ‘the
registration of the criminal case against him’. There was in fact no
suppression of information or submission of false information since the
appellant in clause 15 (i) (d) of the attestation form stated that a criminal
case was pending against him. Non-disclosure of the number of the pending
criminal case ought not to have been construed as a deliberate intent on the
part of the appellant to mislead the respondents.
6. Drawing our attention to the declaration in the attestation form, he
submits for arriving at any finding, the particulars declared by the
incumbent in the said form are required to be taken into account and no
reliance can be placed on any other document. While passing the order of
discharge, the respondent no.4 placed reliance upon a declaration in
vernacular purportedly signed by Partha on 31st December, 2020. Prior
thereto, the attestation form was filled up on 14th March, 2020. Such
contradiction cannot be construed to be fatal inasmuch as the fact of
pendency of the criminal case was disclosed by the appellant coupled with
the particulars that ‘the troubles of my family have been falsified and I am
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innocent. Case pending’. Such issue, as urged, was glossed over by the
learned Judge and no finding was returned on the same and such infirmity
warrants interference in the present appeal. In support of the arguments,
reliance has been placed upon the judgments delivered in the cases of Avtar
Singh -vs- Union of India and Others, reported in (2016) 8 SCC 471 and
Pawan Kumar -vs- Union of India Anr., reported in 2022 LiveLaw (SC) 441.
7. Referring to the object of the Railway Protection Force Act, 1957
(hereinafter referred to as the said Act) and Rules 53 and 57 of the Railway
Protection Force Rules, 1987 (hereinafter referred to as the said Rules), Mr.
Basu, learned advocate appearing for the respondents submits that in a
discipline force, strict norms are needed to be applied. To avail appointment
in police service, the candidate must be having an impeccable character,
integrity and rectitude. Partha was involved in a criminal proceeding on the
date he filled up the attestation form and though the criminal case was
pending against him, he did not furnish the full particulars of the same in
clause 15(ii) and wrongly answered the question as to whether he had ever
been prosecuted in clause 15(i) (c) as ‘Yes’. There had thus been a
deliberate suppression of material fact and as such the competent authority
rightly issued the order of discharge dated 26th February, 2021 and there is
no infirmity in the same.
8. Referring to the ‘warning’ given in the attestation form, he submits
that having made misleading and false statement, the appellant cannot
claim any equity. It is not a case that upon tendering evidence and full-
fledged hearing, Partha was honourably acquitted. The case is still pending.
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He does not come within the parameters, as detailed in paragraph 38 of the
judgment delivered by the Hon’ble Supreme Court in the case of Avtar Singh
(Supra), since in the attestation form he did not furnish the particulars of
the criminal case and after stating that a criminal case is pending, he
submitted a self-declaration dated 31st December, 2020 stating that no
criminal case is pending against him. The judgment delivered in the case of
Pawan Kumar (Supra) is also thus distinguishable on facts.
9. He contends that verification of criminal antecedent is one of the
important criterions to test whether the selected candidate is suitable for the
post and as to whether it was desirable to appoint such a person. In exercise
of the authority conferred under Rule 67.2 of the said Rules, the respondent
no.4 rightly passed the order of discharge detailing the reasons and the said
order is neither arbitrary nor does it suffer from any procedural infirmity. In
the said conspectus, the learned Single Judge rightly refused to exercise
discretion in favour of Partha.
10. In reply, Mr. Chowdhury submits that the order of discharge
issued in purported exercise of Rule 67.2 of the said Rules, does not reflect
any application of mind whatsoever. By merely quoting some clauses of the
attestation form and incorporating a purported declaration, Partha had been
discharged. Such act, being ex facie arbitrary and unreasonable, is not
sustainable in law.
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11. We have heard the learned advocates appearing for the parties at
length and we have given our anxious consideration to the facts and
circumstances of the case.
12. The term ‘serious crime’ connotes a crime beyond the ordinary,
inviting a more serious major punishment than what may be given in the
case of a minor omission. If the crime is grave, the punishment shall have to
be major. An act which could be viewed as a ‘serious crime’ may take within
its comprehension acts of moral turpitude, corruption or misappropriation.
The very nature of offence or misconduct alleged against Partha for which
the proceeding has been initiated and was pending on the date he filled up
the attestation form, thus, becomes relevant. The case pending against
Partha is u/s 498A/323/34 of IPC. Thus, the nature of such offences
cannot by any stretch of imagination be construed to be a ‘serious crime’. In
the case of Avtar Singh (supra), the Court had observed that in respect of
offences trivial in nature, the employer is under an obligation to consider as
to whether the suppression of fact or false information can be condoned. In
the present case, however, there had been no such consideration and
Partha’s claim had been mechanically rejected.
13. The offences alleged are trivial in nature. No specific overt act has
been attributed to Partha. The complaint was lodged by her aunt and
Partha’s name appears to have been mechanically inserted. The case though
initially registered under Section 498A/307/379/34 of IPC, Sections 307
and 379 were deleted upon completion of investigation. The order sheets of
the said case would reveal that not a single witness had been examined and
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the matter is pending for more than five years. Save and except the Kalna
Police Station Case No.563/16 dated 3rd December, 2016, Partha had no
antecedents and there was nothing against him on record in I.B. West
Bengal, as would be explicit from the memo dated 9th February, 2021 issued
by the District Magistrate, Nadia.
14. The contents of a judgment need to be considered together and
not in isolation. A particular clause cannot be taken up and highlighted.
Considering the contents of paragraph 38, the Hon’ble Supreme Court in the
case of Pawan Kumar (supra) observed inter alia that ‘all matters cannot be
put in a straitjacket and a degree of flexibility and discretion vests with the
authorities, must be exercised with care and caution taking all the facts and
circumstances into consideration, including the nature and type of lapse’. In
the said conspectus, the argument of Mr. Basu that the recourses detailed
under paragraph 38 of the judgment of Avtar Singh (supra) are not
applicable in the present case, is not acceptable to us.
15. In the attestation form, the appellant disclosed that a criminal
case was pending against him but mistakenly answered clause 15 (i) as ‘No’
and omitted to disclose its registration number. However, in clause 15 (ii) as
regards the nature of the case he stated that ‘the troubles of my family have
been falsified and I am innocent. Case pending’.
16. Clause 15 (ii) of the attestation form runs as follows:
‘ If the answer to any of the above mentioned question is ‘Yes’
give full particulars of the case/ arrest/ detection/ fine/ conviction/
9sentence/punishment etc and/or the nature of the case pending in the
Court/University/Educational Authority etc at the time of filling up this
attestation form: ‘
17. A scrutiny of the said clause would reveal that ‘full particulars’
have been sought for in respect of separate and specific eventualities and all
the said eventualities are separated by a slash mark. A mark ‘/’ (slash) is
used typically to denote ‘or’. The requirement is thus to give the particulars
of any one of the eventualities. Having stated the nature of the case pending,
the appellant has given a complete answer to the question. Non-disclosure
of the number of the criminal case can at best be an omission but cannot be
construed to be an act of deliberate suppression of factual information or
any false information. The appellant has not practised any fraud. The failure
to furnish the registration number of the criminal case and an error in
answering clause 15 (i) (c) were also not backed with any dishonest motive
and as such the order of discharge suffers from the vice of arbitrariness and
the refusal of the respondent no.4 in exercising discretion in favour of the
appellant cannot be construed as reasonable. The learned Single Judge, in
our opinion, erred in proceeding on the basis that the appellant is guilty of
suppression of factual information.
18. For the reasons discussed above, the order of discharge dated
26th February, 2021 passed by the respondent no.4 and the judgment
impugned in the present appeal are set aside.
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19. The respondents are directed to reinstate the appellant in service
in the post of Constable (Band), RPF at the stage from where he was
discharged within a period of eight weeks from the date of communication of
this judgment.
20. With the above observations and directions the appeal and the
connected application are disposed of.
21. There shall, however, be no order as to costs.
22. Urgent Photostat certified copy of this judgment, if applied for, be
given to the parties, as expeditiously as possible, upon compliance with the
necessary formalities in this regard.
(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)
