KANAKSINH SOMABHAI THAKOR Vs. SECRETARY

JUDGEMENT

(1.) By way of this petition, the petitioner has challenged the order dated 28.5.2009 passed by respondent No.3 by which the petitioner was terminated from the service.

(2.) The facts of the case in brief are that the petitioner was selected and recruited as Constable by the respondents after following all the due procedures including medical examination. Vide order dated 30.4.2008, the Chief Security Commissioner, Western Railway Head Quarter-respondent No.3, he was sent for initial training. It is the case of the petitioner that he was never asked whether any prosecution was launched against him. While undergoing training at the training institute, the petitioner was asked to fill in an attestation form dated 2.5.2008 in which in answer to the column "Have you ever been prosecuted? and Is any case pending against you in any court of law at the time of filling up of this Attestation Form?", he answered both the questions in 'negative'. After submission of the Attestation Form, the respondent authority called for police verification and it was informed that adverse police verification was received from the Addl.District Magistrate, Sabarkantha at Himatnagar and offence under Section 498-A read with sections 323, 506(2) and 114 of Indian Penal Code and sections 3 and 7 of Dowry Prohibition Act was registered mainly against the brother of the petitioner, wherein vague allegations were made against the petitioner. The wife of Rameshbhai Somabhai Chauhan namely, Jasodaben had filed the complaint against her father-in-law, mother-in-law and against one Bhartiben Mohanbhai and her husband who is the real brother of the present petitioner. The present petitioner was shown as accused No.3 in the said complaint. For the concealment in the Attestation Form, under Rule 67.2 of R.P.F. Rules, respondent No.3 terminated the training of the petitioner.

(3.) We have heard the learned counsel for the parties. Learned counsel for the petitioner has submitted that the petitioner was never asked whether any prosecution case was launched against him. It was while undergoing training that the petitioner was asked to fill attestation form on 2.5.2008. Before filling the said form, the petitioner was selected, enrolled and was sent for training. It is an admitted fact that there was a criminal case relating to offence under section 498-A which was registered mainly against the real brother of the petitioner and the said case was settled and therefore, the petitioner was under the bonafide impression that the case was over and it cannot be said that there was any suppression of facts. He further submitted that the petitioner was acquitted vide judgment dated 1.7.2009. In any case the letter dated 28.5.2009 terminating the petitioner does not mention anything about the criminal case but simply states " C.S.C. has ordered to terminate the training and he should be put off from the roll". This order was issued without issuing any show cause notice. It is pertinent to note that on 1.7.2009 i.e. within two months from the date of termination, the petitioner was acquitted of the charges by the court concerned. It is also pertinent to note that the petitioner was not even served the order dated 28.5.2009 terminating his service, but such order was procured under the RTI Act. The petitioner had only received an intimation dated 1.6.2009 stating that in view of the letter dated 28.5.2009, his training was terminated. In absence of order removing from the roll, the petitioner could not challenge the same in the Court of Law nor could file appeal against the said order. It is submitted by the learned counsel that thereafter though repeated representations to reconsider the issue were made, the same were simply rejected and no positive reply was received by him. It is stated by the learned counsel that against several RPF constables criminal cases are filed and pending but they are neither suspended nor removed which shows that mere pendency of criminal case cannot bar appointment of suitable candidate. The learned counsel further contended that rules do not provide for prohibiting appointment of a person against whom criminal case is pending. Looking to the charge sheet, it is very clear that vague allegations were made against the petitioner and subsequent acquittal in criminal case calls for reconsideration by the respondent authorities. The order of Chief Security Officer does not show that non-disclosure/giving incorrect information was the reason for removing him from service. He has strenuously contended that the impugned order of termination of the petitioner without issuing any notice is clear violation of Article 311 of the Constitution of India. If such trifle case was pending, the petitioner could be appointed under the relevant rules because there is no prohibition to appoint a citizen to the post of constable and thus the selection is effected before filling of Attestation form. He has submitted that under Article 311 of the Constitution of India, no person who is a member of civil service of the union can be dismissed by an authority subordinate to that by which he was appointed and he cannot be dismissed or removed except after an inquiry and after giving a reasonable opportunity of being heard in respect of those charges. The learned counsel has invited attention of this Court to Chapter V of the RPF Rules which is regarding recruitment, training and career and it provides for the direct recruitment at the level of constable. Under Rule 46 of RPF Rules speaks about ineligibility for appointment as member of the force and there is no prohibition to appoint constable, if any criminal case is pending against him. Direct recruitment to the post of constable is to be made under Rule 49, 49.1A to 49.5 after written examination, physical efficiency test and written test followed by medical examination. Rule 52 provides that before the recruit is formally appointed to the Force, his character and antecedents shall be verified and after the verification, if the recruit is not found suitable for the Force, he shall not be appointed as member of the Force. Rule 67.2 provides that till such time the direct recruit selected is not formally appointed to the Force, he is liable to be discharged at any stage if the CSC for reasons to be recorded in writing, deems it fit so to do in the interest of the Force. He therefore, submitted that the aforesaid conditions are not fulfilled in the case of the petitioner. Even under Rule 148 of Railway Service (Discipline and Appeal) Rules, 1968 and Railway Service (Conduct) Rules, 1967, major punishment of dismissal or removal can be imposed subject to the procedure to be followed under Rule 153 i.e. show cause notice is required to be issued along with grounds and with proposed actions and reasonable opportunity of defending is to be given. The petitioner is not given any such opportunity. In view of the aforesaid grounds, the action of removal of the petitioner from the roll is illegal, irrational, arbitrary and against the provisions of the Act and Rules. Finally it is submitted that unless a recruit is convicted in a criminal case by the court, major penalty of removal from service cannot be imposed.