EX-CONST/DVR MUKESH KUMAR RAIGARversusUNION OF INDIA & ORS

                         [2023] 1 S.C.R. 797                            797


         EX-CONST/DVR MUKESH KUMAR RAIGAR                               A
                                 v.
                    UNION OF INDIA & ORS.
         (Special Leave Petition (Civil) No. 10499 of 2022)
                        JANUARY 16, 2023                                B
       [AJAY RASTOGI AND BELA M. TRIVEDI, JJ.]
       Service Law : Removal from service – Constable found guilty
of gross misconduct and indiscipline – Suppression of pending
criminal litigation in the verification form submitted at the time of
                                                                        C
appointment – Departmental inquiry – Order of removal from the
services – Single Judge of the High Court set aside the dismissal
order and directed the reinstatement of the constable – However,
the Division Bench set aside the order – On appeal, held: Constable
has committed gross misconduct – There was deliberate suppression
of fact which was an aggravating circumstances – Force personnel        D
are required to maintain discipline of the highest order and the
involvement of the constable in such grave offences debarred him
from the appointment – Appointing authorities have passed the order
of his removal from services after following the due process of law
and without malafides – Single Judge of High Court wrongly
                                                                        E
interfered 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 had                 F
committed an error in interfering with the order passed by the
respondents-authorities. The respondents-authorities had after
taking into consideration the decision in case of Avtar Singh
terminated the services of the petitioner holding inter-alia that
while the petitioner was appointed in CISF, a criminal case was
pending against him at the time of his enrolment in the force, but      G
he did not reveal the same and that there was deliberate
suppression of facts which was an aggravating circumstance. CISF
being an armed force of Union of India, is deployed in sensitive
sectors such as airports, ports, department of atomic energy,
department of space, metro, power and steel, for internal security      H
                                797
798           SUPREME COURT REPORTS                      [2023] 1 S.C.R.


A     duty etc., and therefore, the force personnel are required to
      maintain discipline of the highest order; and that the involvement
      of the 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
B
      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. [Para 9][806-D-G]
            1.2 The Division Bench of the High Court had rightly set
C     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
D     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. [Para 13][808-
      F-G]
E           Avtar Singh v. Union of India, (2016) 8 SCC 471 :
            [2016] 7 SCR 445; Satish Chandra Yadav v. Union of
            India, 2022 SCC OnLine SC 1300 – relied on.
            Union of India & Ors. v. Methu Meda, (2022) 1 SCC
            1; Union of India v. Dilip Kumar Mallick, (2022) 6
F           SCALE 108, Pawan Kumar v. Union of India & Anr.,
            (2022) SCC OnLine SC 532, Rajasthan Rajya Vidyut
            Prasaran 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]
G           Suppl. 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 SCC
            386 : [2000] 4 Suppl. SCR 693; Deputy General
            Manager (Appellate Authority) & Ors. v. Ajai Kumar
H           Srivastava, (2021) 2 SCC 612 – referred to.
  EX-CONST/DVR MUKESH KUMAR RAIGAR v. UNION OF                            799
                  INDIA & ORS.

      Associated Provincial Picture Houses Ltd. v. Wednesbury             A
      Corporation, [1948] 1 KB 223 – referred to.
                       Case Law Reference
[2016] 7 SCR 445                relied on                Para 7
(2022) 1 SCC 1                  referred                 Para 8           B
(2022) 6 SCALE 108              referred                 Para 8
(2021) 10 SCC 136               referred                 Para 8
(2019) 17 SCC 696               referred                 Para 8
[1963] Suppl. SCR 648           referred                 Para 10          C
[1995] 4 Suppl. SCR 644         referred                 Para 10
[2000] 4 Suppl. SCR 693         referred                 Para 11
(2021) 2 SCC 612                referred                 Para 12
       CIVIL APPELLATE JURISDICTION : Special Leave Petition              D
(Civil) No.10499 of 2022.
      From the Judgment and Order dated 16.11.2021 of the High Court
of Judicature for Rajasthan Bench at Jaipur in D.B. Special Appeal Writ
No.637 of 2021.
                                                                          E
     Ms. Asifa Rashid Mir, M.S. Khan, Mohd. Parvez Dabas, Uzmi
Jameel Husain, Ms. Neha Khan, Ms. Zeba, Ms. Arushi Jain, Syed Mehdi
Imam, Advs. for the Petitioner.
     R. Bala Subramanian, Sr. Adv., P.V. Yogeswaran, Merusagar
Samantaray, Nachiketa Joshi, Rajan Kumar Chourasia, Arvind Kumar
                                                                          F
Sharma, 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 the
judgment and order dated 16.11.2021 passed by the High Court of           G
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,
                                                                          H
800             SUPREME COURT REPORTS                            [2023] 1 S.C.R.


A     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 CISF on 03.11.2007. In April, 2009 the petitioner received a notice/
      Memorandum of charge under the Rule 36 of CISF Rules 2001
B     (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
C     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
D     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
E     view the young age and future prospects of the petitioner, imposed
      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
F     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.
G     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
H
     EX-CONST/DVR MUKESH KUMAR RAIGAR v. UNION OF                              801
             INDIA & ORS. [BELA M. TRIVEDI, J.]

2012 before the High Court of Judicature for Rajasthan at Jaipur. The          A
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 Supreme Court in case of
Avtar Singh Vs. Union of India & Ors1 and directed the appointing
                                                                               B
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    C
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      D
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        E
order.
       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          F
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         G
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
1
    (2016) 8 SCC 471                                                           H
802             SUPREME COURT REPORTS                           [2023] 1 S.C.R.


A     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 considering his age and considering the fact that the
B     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
C     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
D
      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
E     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 Court, had
      summarized the principles in para 38 which reads as under:
F             “38. We have noticed various decisions and tried to explain
              and reconcile them as far as possible. In view of the aforesaid
              discussion, we summarise our conclusion thus:
                  38.1. Information given to the employer by a candidate
                  as to conviction, acquittal or arrest, or pendency of a
                  criminal case, whether before or after entering into
G                 service must be true and there should be no suppression
                  or false mention of required information.
                  38.2. While passing order of termination of services or
                  cancellation of candidature for giving false information,
                  the employer may take notice of special circumstances
H                 of the case, if any, while giving such information.
EX-CONST/DVR MUKESH KUMAR RAIGAR v. UNION OF                      803
        INDIA & ORS. [BELA M. TRIVEDI, J.]

    38.3. The employer shall take into consideration the          A
    government orders/instructions/rules, applicable to the
    employee, at the time of taking the decision.
    38.4. In case there is suppression or false information
    of involvement in a criminal case where conviction or
    acquittal had already been recorded before filling of the     B
    application/verification form and such fact later comes
    to knowledge of employer, any of the following recourses
    appropriate to the case may be adopted:
    38.4.1. In a case trivial in nature in which conviction had
    been recorded, such as shouting slogans at young age          C
    or for a petty offence which if disclosed would not have
    rendered an incumbent unfit for post in question, the
    employer may, in its discretion, ignore such suppression
    of fact or false information by condoning the lapse.
    38.4.2. Where conviction has been recorded in case            D
    which is not trivial in nature, employer may cancel
    candidature or terminate services of the employee.
    38.4.3. If acquittal had already been recorded in a case
    involving moral turpitude or offence of heinous/serious
    nature, on technical ground and it is not a case of clean     E
    acquittal, or benefit of reasonable doubt has been given,
    the employer may consider all relevant facts available
    as to antecedents, and may take appropriate decision as
    to the continuance of the employee.
    38.5. In a case where the employee has made declaration       F
    truthfully of a concluded criminal case, the employer still
    has the right to consider antecedents, and cannot be
    compelled to appoint the candidate.
    38.6. In case when fact has been truthfully declared in
    character verification form regarding pendency of a
                                                                  G
    criminal case of trivial nature, employer, in facts and
    circumstances of the case, in its discretion, may appoint
    the candidate subject to decision of such case.
    38.7. In a case of deliberate suppression of fact with
    respect to multiple pending cases such false information
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804             SUPREME COURT REPORTS                         [2023] 1 S.C.R.


A                by itself will assume significance and an employer may
                 pass appropriate order cancelling candidature or
                 terminating services as appointment of a person against
                 whom multiple criminal cases were pending may not be
                 proper.
B                38.8. If criminal case was pending but not known to the
                 candidate at the time of filling the form, still it may have
                 adverse impact and the appointing authority would take
                 decision after considering the seriousness of the crime.
                 38.9. In case the employee is confirmed in service,
                 holding departmental enquiry would be necessary before
C                passing order of termination/removal or dismissal on the
                 ground of suppression or submitting false information in
                 verification form.
                 38.10. For determining suppression or false information
                 attestation/verification form has to be specific, not vague.
D                Only such information which was required to be
                 specifically mentioned has to be disclosed. If information
                 not asked for but is relevant comes to knowledge of the
                 employer the same can be considered in an objective
                 manner while addressing the question of fitness.
                 However, in such cases action cannot be taken on basis
E
                 of suppression or submitting false information as to a
                 fact which was not even asked for.
                 38.11 Before a person is held guilty of suppressio veri
                 or suggestio falsi, knowledge of the fact must be
                 attributable to him”.
F
             8. It may be noted that even after the guiding principles laid down
      in the case of Avtar Singh by the three-judge Bench, divergent views
      were expressed by the various benches of this Court. Therefore, this
      Court in case of Satish Chandra Yadav Vs. Union of India & Others. 2,
      after taking into consideration the inconsistent views taken in the cases
G     of Union of India & Ors. Vs Methu Meda3; Union of India vs. Dilip
      Kumar 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
H
     EX-CONST/DVR MUKESH KUMAR RAIGAR v. UNION OF                        805
             INDIA & ORS. [BELA M. TRIVEDI, J.]

Rajasthan Rajya Vidyut Prasaran Nigam Limited & Anr. vs. Anil            A
Kanwariya6; Mohammed Imran Vs. State of Maharashtra & Others7;
etc., further laid down following principles:
         “89. The only reason to refer to and look into the various
         decisions rendered by this Court as above over a period of
         time is that the principles of law laid therein governing the   B
         subject are bit inconsistent. Even after, the larger Bench
         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      C
         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    D
         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
                                                                         E
         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         F
         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    G
         found that the employee had suppressed or given false
         information in regard to the matters having a bearing on
6
    (2021) 10 SCC 136
7
    (2019) 17 SCC 696
                                                                         H
806               SUPREME COURT REPORTS                         [2023] 1 S.C.R.


A              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
B              should be avoided.
               e) The Court should inquire whether the Authority
               concerned whose action is being challenged acted mala fide.
               f) Is there any element of bias in the decision of the
               Authority?
C
               g) Whether the procedure of inquiry adopted by the
               Authority concerned was fair and reasonable?”
             9. Having regard to the guiding principles, laid down in case of
      Avtar Singh (supra) and in case of Satish Chandra Yadav (supra),
      this Court has no hesitation in holding that the Single Bench of the High
D
      Court had committed an error in interfering with the order passed by the
      respondents-authorities. The respondents-authorities had after taking into
      consideration the decision in case of Avtar Singh terminated the services
      of the petitioner holding inter-alia that while the petitioner was appointed
      in CISF, a criminal case was pending against him at the time of his
E     enrolment in the force, but he did not reveal the same and that there was
      deliberate suppression of facts which was an aggravating circumstance.
      It was also held that CISF being an armed force of Union of India, is
      deployed in sensitive sectors such as airports, ports, department of atomic
      energy, department of space, metro, power and steel, for internal security
      duty etc., and therefore, the force personnel are required to maintain
F
      discipline of the highest order; and that the involvement of the 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
G     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.
             10. The Constitution Bench, in case of State of Orissa & Others
      vs. Bidyabhushan Mohapatra8 had observed way back in 1963 that
      8
H         AIR 1963 SC 779
     EX-CONST/DVR MUKESH KUMAR RAIGAR v. UNION OF                                  807
             INDIA & ORS. [BELA M. TRIVEDI, J.]

having regard to the gravity of the established misconduct, the punishing          A
authority had the power and jurisdiction to impose punishment. The penalty
was not open to review by the High Court under Article 226. A three-
judge Bench in case of B.C. Chaturvedi vs. Union of India & Ors9
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          B
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 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
                                                                                   C
statutory rules were complied with.
        11. In Om Kumar & Others vs. Union of India10 this Court had
also 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        D
the Administrative Tribunals is limited and is confined to the applicability
of one or the other of the well-known principles known as “Wednesbury
Principles”11 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.                                                                  E
        12. Again, a three-judge Bench in case of Deputy General
Manager (Appellate Authority) & Ors. vs. Ajai Kumar Srivastava 12
circumscribing the power of judicial review by the constitutional courts
held as under:
        “24. It is thus settled that the power of judicial review, of              F
        the constitutional courts, is an evaluation of the decision-
        making process and not the merits of the decision itself. It
        is to ensure fairness in treatment and not to ensure fairness
        of conclusion. The court/tribunal may interfere in the
        proceedings held against the delinquent if it is, in any
        manner, inconsistent with the rules of natural justice or in               G
        violation of the statutory rules prescribing the mode of
9
  (1995) 6 SCC 749
10
   (2001) 2 SCC 386
11
   Associated Provincial Picture Houses Ltd. vs. Wednesbury Corporation [1948] 1
KB 223
12
   (2021) 2 SCC 612                                                                H
808              SUPREME COURT REPORTS                           [2023] 1 S.C.R.


A            enquiry or where the conclusion or finding reached by the
             disciplinary authority is based on no evidence. If the
             conclusion or finding be such as no reasonable person would
             have ever reached or where the conclusions upon
             consideration of the evidence reached by the disciplinary
             authority are perverse or suffer from patent error on the
B            face of record or based on no evidence at all, a writ of
             certiorari could be issued. To sum up, the scope of judicial
             review cannot be extended to the examination of
             correctness or reasonableness of a decision of authority as
             a matter of fact.
C            25. xxxxxxx
             26. xxxxxxx
             27. xxxxxxxx
             28. The constitutional court while exercising its jurisdiction
             of judicial review under Article 226 or Article 136 of the
D            Constitution would not interfere with the findings of fact
             arrived at in the departmental enquiry proceedings except
             in a case of mala fides or perversity i.e. where there is no
             evidence to support a finding or where a finding is such
             that no man acting reasonably and with objectivity could
             have arrived at those findings and so long as there is some
E
             evidence to support the conclusion arrived at by the
             departmental authority, the same has to be sustained.”
             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
F     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
G
      136 of the Constitution.
             14. In that view of the matter the SLP is dismissed.

      Nidhi Jain                                                  Petition dismissed.
      (Assisted by : Bhavyata Kapoor and Shashwat Jain, LCRAs)
H