JUDGMENT Dilip Gupta, J.
1. This Writ Petition has been filed for quashing the order dated 31st October, 1998 by which the services of the petitioner who had been selected as a 'Constable (Recruit)' on temporary basis in the Central Reserve Police Force (hereinafter referred to as the 'CRPF') have been terminated under the provisions of Rule 5(1) of The Central Civil Services (Temporary Service) Rules, 1965 (hereinafter referred to as the 'CCS (Temporary) Rules').
2. The petitioner was selected on temporary basis in the Central Reserve Police Force as a Constable (Recruit) by means of the letter dated April, 1998. While submitting the application form for seeking the aforesaid appointment, the petitioner filled up the Verification Roll as was required under Rule 14(b) of the Central Reserve Police Force Rules, 1955 (hereinafter referred to as the CRPF Rules). The relevant portions of the Verification Roll filled up by the petitioner are quoted below:
WARNING:
The furnishing of false information or suppression of any factual information in the Verification Roll will be a disqualification and is likely to render candidate unfit for employment under the Government.
If detained, convicted, debarred etc., subsequent to the completion and submission of this form, the information should be communicated immediately to the Union Public Service Commission or the authority to which the Verification Roll has been sent earlier, as the case may be, failing which it will be deemed to be suppression of factual information.
If the fact that false information has been furnished or that there has been suppression of any factual information in the Verification Roll comes to notice at any time during the service of a person, his services would be liable to be terminated.
12(a) Have you ever been arrested, prosecuted, kept under detention or bound down/fined, convicted, by a court of law for any offence or debarred/disqualified by any Public Service Commission from appearing at its examination/selection, or debarred from taking any examination/rusticated by any University or any other education authority/Institution?
(b) Is any case pending against you in any court of law, University or any other education authority/institution at the time of filling up this Verification Roll?
If answer to (a) or (b) is 'Yes' then give details of prosecution, detention, fine, conviction and punishment etc. and state about the case pending with the court/University'/education authority at the time of filling in this form.
Please also see the 'Warning' at the top of this Verification Roll.
I certify that the foregoing information is correct and complete to the best of my knowledge and belief. 1 am not aware of any circumstances which might impair my fitness for employment under Government.
...Signature of the Candidate
3. The verification of the character and antecedents of the petitioner was made through the District Magistrate, Ghazipur as required under Rule 14(a) of the CRPF Rules. The District Magistrate by his letter dated 20th August, 1998 forwarded the report of the Superintendent of Police, Ghazipur which mentioned that Criminal Case No. 458 of 1997 under Sections 323/325/504 of the Indian Penal Code was pending against the petitioner in the Court of Additional Chief Judicial Magistrate, Ghazipur. Upon receipt of the aforesaid information the order dated 31st October, 1998 was issued by the Competent Authority under the provisions of Rule 5(1) of the CCS (Temporary) Rules read with Rule 16 of the CRPF Rules by which the temporary services of the petitioner were terminated forthwith. It is this order that has been impugned in the present petition.
4. I have heard Sri B.B. Paul, learned Counsel for the petitioner and Sri K.C. Sinha, learned Assistant Solicitor General of India appearing for the respondents and have perused the materials available on record.
5. Sri B.B. Paul, learned Counsel for the petitioner submitted that as the petitioner was ultimately acquitted in Criminal Case No. 458 of 1997 by the order dated 23rd May, 1998 by giving him the benefit of doubt, it cannot be said that the petitioner had suppressed any information in the Verification Roll; that the information that had been suppressed cannot be said to be of such a grave nature which warranted the passing of the order of termination; though the petitioner had been selected on a temporary basis as a Constable (Recruit) but still opportunity was required to be given to the petitioner to show cause before issuing the termination order and in any view of the matter the Court must take a sympathetic view.
6. Sri K.C. Sinha, learned Assistant Solicitor General of India, on the other hand, submitted that the Verification Roll contained a warning that furnishing of false information and suppression of any factual information in the Verification Roll would be a disqualification and would render the candidate unfit for employment and that if any false information was furnished or there was any suppression of any factual information in the Verification Roll which subsequently came to the notice of the authority during the service, then the services could be terminated and as such the termination order was justified as the petitioner had not declared the pendency of the criminal case in the Verification Roll filled up by him. He further submitted that in such circumstances when action was taken under the provisions of Rule 5(1) of the CCS (Temporary) Rules, then there was no requirement of giving any opportunity of hearing to the petitioner before terminating his services and that in such circumstances the Court should not take a sympathetic view.
7. I have carefully considered the submissions advanced by the learned Counsel for the parties.
8. The first contention of Sri B.B. Paul, learned Counsel for the petitioner is that mere suppression of pendency of the criminal case in the Verification Roll filled up by the petitioner could not have formed the basis for terminating the temporary services of the petitioner in view of the decision of this Hon'ble Court given on 24th September, 1999 in Civil Misc. Writ Petition No. 4594 of 1997 (Anuj Kumar v. D.I.G. (Karmik), PHQ and Ors.) and the interim order of this Court dated 28th January, 2004 in Civil Misc. Writ Petition No. 3045/2005/SS (Uday Veer Singh v. Union of India and Ors.).
9. The facts of this case reveal that a clear warning was contained in the Verification Roll that furnishing of false information or suppression of any factual information would be a disqualification likely to render the candidate unfit for employment under the Government and that if at a later stage in service it was found that any false information had been furnished or there had been suppression of any factual information in the Verification Roll, then the services could be terminated. The petitioner had clearly suppressed information about the pendency of the criminal case which he was required to disclose in the Verification Roll. The petitioner had also signed the Verification Roll clearly certifying that the information furnished by him was correct and complete to the best of his knowledge and belief.
10. The Hon'ble Supreme Court in Kendriya Vidyalaya Sangathan and Ors. v. Ram Ratan Yadav examined a similar controversy where the candidate mentioned 'NO' in Column 12(1) which required the candidate to indicate whether any case was pending against him in any Court of law at the time of filling up of attestation form. It was subsequently found that a criminal case was actually pending and, therefore, on the ground of suppression of factual information in the attestation form, his services were terminated. The Central Administrative Tribunal dismissed the claim petition but the High Court allowed the Writ Petition. The Hon'ble Supreme Court, however, allowed the appeal and set aside the order of the High Court and observed as follows:
...Subsequent withdrawal of criminal case registered against the respondent or the nature of offences, in our opinion, were not material. The requirement of filling columns 12 and 13 of the attestation form was for the purpose of verification of character and antecedents of the respondent as on the date of filling and attestation of the form. Suppression of material information and making a false statement has a clear bearing on the character and antecedents of the respondent in relation to his continuance in service.
The object of requiring information in columns 12 and 13 of the attestation form and certification thereafter by the candidate was to ascertain and verify the character and antecedents to judge his suitability to continue in service. A candidate having suppressed material information and/or giving false information cannot claim right to continue in service. The employer having regard to the nature of the employment and all other aspects had the discretion to terminate his services, which is made expressly clear in para 9 of the offer of appointment. The purpose of seeking information as per columns 12 and 13 was not to find out either the nature or gravity of the offence of the result of a criminal case ultimately. The information in the said columns was sought with a view to judge the character and antecedents of the respondent to continue in service or not. The High Court, in our view, has failed to see this aspect of the matter. It went wrong in saying that the criminal case had been subsequently withdrawn and that the offences, in which the respondent was alleged to have been involved, were also not of serious nature. In the present case the respondent was to serve a Physical Education Teacher in Kendriya Vidyalaya. The character, conduct and antecedents of a teacher will have some impact on the minds of the students of impressionable age. The appellants having considered all the aspects passed the order of dismissal of the respondent from service, The Tribunal after due consideration rightly recorded a finding of fact in upholding the order of dismissal passed by the appellants. The High Court was clearly in error in upsetting the order of the Tribunal. The High Court was again not right in taking note of the withdrawal of the case by the State Government and that the case was not of a serious nature to set aside the order of the appointment subject to the terms and conditions mentioned therein with his eyes wide open. Para 9 of the said memorandum extracted above in clear terms kept the respondent informed that the suppression of any information may lead to dismissal from service. In the attestation form, the respondent has certified that the information given by him is correct and complete to the best of his knowledge and belief; if he could not understand the contents of columns 12 and 13, he could not certify so. Having certified that the information given by him is correct and complete, his version cannot be accepted. The order of termination of services, clearly shows that there has been due consideration of various aspects. In this view, the argument of the learned Counsel for the respondent that as per para 9 of the memorandum, the termination of service was not automatic, cannot be accepted.
(emphasis supplied)
11. The aforesaid decision of the Hon'ble Supreme Court in Kendriya Vidyalaya (supra) was followed subsequently by the Hon'ble Supreme Court in A.P. Public Service Commission v. Koneti Venkateswarulu and Ors. . Here also the application form required the candidates to furnish full information with regard to their appointments in Government/private sector, if any, and the notification issued by the Andhra Pradesh Public Service Commission specifically informed the candidates that giving of any false/wrong information or suppression of material information would lead to cancellation of candidature. The candidates had, however, filled up the application form, but left column 11 which required him to disclose the aforesaid information regarding previous employment, totally blank and also gave a declaration that all the statements made in the application are true and correct. The Andhra Pradesh Administrative Tribunal dismissed his Original Application but the High Court allowed the Writ Petition. The Hon'ble Supreme Court allowed the Appeal and observed:
The learned Counsel for the appellant drew our attention to the photocopy of the application dated 24-7-1999 from which it is clearly seen that as against column 11 the first respondent has given no information whatsoever, leaving the column blank by drawing lines. He had put his signature and made declaration in the application which is earlier reproduced. The first respondent also filled up Annexure III and made a declaration therein as reproduced earlier. Learned Counsel for the appellant Commission relied on the judgment of this Court in Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav and contended that when information with regard to the antecedents of a candidate is called for, it is intended to verify and cross-check the information so that the suitability of the candidate for employment could be judged. If the candidate indulges in suppressio veri and suggestio falsi, he proves himself unfit to be employed, all the more so, if he is to be employed in public employment. If the information as to the full particulars of employment was available with the Commission, the Commission could have checked the antecedents of the first respondent with his employer and ascertained the suitability of the first respondent for employment. In any event, it had been made clear to the candidates, both in the advertisement calling for applications as well as in the body of the application itself that furnishing of false information or its suppression was liable to result in cancellation of the candidature. The first respondent, therefore, did not deserve any consideration and the High Court erred in interfering with the order of the Tribunal.
We are unable to accept the contention of the learned Counsel for the first respondent. As to the purpose for which the information is called for, the employer is the ultimate judge. It is not open to the candidate to sit in judgment about the relevance of the information called for and decide to supply it or not. There is no doubt that the application called for full employment particulars vide column 11. Similarly, Annexure II contained an express declaration of not working in any public or private employment. We are also unable to accept the contention that it was inadvertence which led the first respondent to leave the particulars in column 11 blank and make the declaration of non-employment in Annexure III to the application. The application was filled on 24-7-1999, the examination was held on 24-10-1999, and the interview call was given on 31-1-2000. At no point of time did the first respondent inform the appellant Commission that there was a bona fide mistake by him in filling up the application form, or that there was inadvertence on his part in doing so. It is only when the appellant Commission discovered by itself that there was suppressio veri and suggestio falsi on the part of the first respondent in the application that the respondent came forward with an excuse that it was due to inadvertence. That there has been suppressio veri and suggestio falsi is incontrovertible. The explanation that it was irrelevant or emanated from inadvertence, is unacceptable. In our view, the appellant was justified in relying upon the ratio of Kendriya Vidyalaya Sangathan and contending that a person who indulges in such suppressio veri and suggestio falsi and obtains employment by false pretence does not deserve any public employment. We completely endorse this view.
(emphasis supplied)
12. In this connection, it may also be pertinent to refer to another decision of the Hon'ble Supreme Court in the case of Delhi Administration through its Chief Secretary and Ors. v. Sushil Kumar . The candidate had appeared for recruitment as a Constable in Delhi Police Services and was ultimately selected provisionally subject to the verification of character and antecedents by the local police. On verification it first found that his antecedents were not desirable and his name was rejected. The Hon'ble Supreme Court emphasised that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post and in this connection it observed:
...The Tribunal in the impugned order allowed the application on the ground that since the respondent had been discharged and/or acquitted of the offence punishable under Section 304 IPC, under Section 324 read with Section 34 IPC and under Section 324 IPC, he cannot be denied the right of appointment to the post under the State. The question is whether the view taken by the Tribunal is correct in law? It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The Tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof If the actual result happened to be in a particular way, the aw will take care of the consequences. The consideration relevant to the case is of the antecedents of the candidate. Appointing authority, therefore, has rightly focussed this aspect and found it not desirable to appoint him to the service.
(emphasis supplied)
13. A Division Bench of this Court in Civil Misc. Writ Petition No. 2928 of 2006 decided on 17th January, 2006 (Niranjan Lal v. Union of India and Ors.) in almost identical circumstances dismissed the Writ Petition filed by the candidate who had challenged the order of dismissal which had been passed against him on the ground that he had stated in the attestation form that no criminal case was pending against him, even though at that point of time he was actually facing a criminal trial, though subsequently to the filling up of the attestation form he had been acquitted. In this context, the Division Bench observed, after placing reliance on the aforesaid decisions of the Hon'ble Supreme Court, that the antecedents, conduct and character of the candidate to be appointed is of paramount consideration and not the result of the criminal case in which he was involved and as the petitioner therein had obtained employment by misrepresentation i.e. by suppressing material information sought by the appointing authority, neither the result of the prosecution and nor the nature of the offence in which he was involved was relevant and nor the principles of natural justice were attracted. The Division Bench, therefore, upheld the order of the Central Administrative Tribunal rejecting the claim of the petitioner.
14. It would, therefore, be seen from the aforesaid decisions that requirement of indicating the information sought for in the Verification Roll is for the purpose of verification of the character and antecedents of the employee and a candidate who has suppressed material information and/or has given false information cannot claim a right to continue in service. The information required is with respect to the date of filling up of the Verification Roll and subsequent withdrawal of the criminal case or acquittal by a Criminal Court is not material and nor is it material that the criminal case related to an offence which was not of a serious nature. It is also not open to an employee to sit in judgment about the relevance of the information called for and decide to supply it or not for it is for the employer to judge the requirement of such information. The verification of the character and antecedents is an important criteria to test whether the selected candidate is suitable to a post or not and, therefore, it is obligatory on the part of the person filling the Verification Roll to provide the required information.
15. It is in the light of the aforesaid proposition of law that the facts of the present case have to be examined. The petitioner was clearly aware of the fact that suppression of any information in the Verification Roll may lead to his dismissal from service. He had certified that the information given by him was correct and complete to the best of his knowledge and belief. The object of requiring information as contained in column 12 of the Verification Roll is to ascertain and verify the character and antecedents to judge suitability in service and, therefore, a candidate who has suppressed this material information cannot claim a right to continue in service. In such circumstance I am unable to accept the contention of the learned Counsel for the petitioner that the information that had been suppressed by the petitioner in the Verification Form was not that material which could have warranted the termination order and neither is there any merit in the other contention that since the petitioner had been ultimately acquitted by the Criminal Court on the basis of benefit of doubt, it cannot be said that the petitioner had suppressed any material information. The information sought for from the petitioner was regarding the pendency of any criminal case on the date of filling up of the Verification Roll. The petitioner was, therefore, under an obligation to correctly state about the pendency of any criminal case. This is what was emphasised by the Hon'ble Supreme Court in the aforesaid decisions wherein it has been clearly held that subsequent exoneration of the employee by the Criminal Court cannot be made a ground to contend that there was no suppression of material facts at the time of filling up of the Verification Roll. The contention of the learned Counsel for the petitioner that the criminal case related to a petty offence also does not merit any consideration in view of the observations of the Hon'ble Supreme Court in the aforementioned cases.
16. Learned Counsel for the petitioner, however, placed strong reliance upon the decision of a learned Judge of this Court in the petition filed by Anuj Kumar (supra) and the interim order passed in the Writ Petition filed by Uday Veer Singh (supra). In the case of Anuj Kumar (supra) it had not been disclosed in the affidavit that Criminal Case Crime No. 13 5/1996 was pending against him. The petitioner was not permitted to join as he was found unfit to be given appointment but no formal orders were passed prohibiting the petitioner from joining the post of Constable on which he had been selected. The Court found that though the petitioner was involved in the aforesaid criminal case, but he had finally been acquitted by the Chief Judicial Magistrate by the order dated 10th September, 1997. The Court, therefore, observed that as the petitioner had been acquitted of the petty offences it cannot be said that he had suppressed material facts and that the Senior Superintendent of Police, Agra had also pointed out that the petitioner may be sent for training. In such circumstances, the Court observed that the petitioner was at the threshold of his career and if he was prevented from joining the training after due selection as a Constable, his entire career and future prospects would be ruined.
17. A bare perusal of the interim order dated 28th January, 2004 in the petition of Uday Veer Singh (supra) indicates that the Court was swayed by the fact that the petitioner did not have knowledge of the criminal case pending against him and that the punishment of dismissal was excessive.
18. The decision of the learned Judge in Anuj Kumar (supra) is contrary to the decisions of the Hon'ble Supreme Court in Kendriya Vidyalaya Sangathan (supra), A.P. Public Service Commission (supra), Delhi Administration (supra) and the Division Bench of this Court in Niranjan Lal (supra) and, therefore, not help the petitioner and nor can the petitioner derive any benefit from the interim order in the petition filed by Uday Veer Singh (supra).
19. The matter can be examined from the another angle. The petitioner had played fraud upon the employer by suppressing material information regarding the pendency of the criminal case.
20. In Bank of India and Anr. v. Avinash D. Mandivikar and Ors. the Hon'ble Supreme Court considered the consequences of submitting a false certificate for seeking appointment and in this connection it was observed as follows:
Respondent 1 employee obtained appointment in the service on the basis that he belonged to a Scheduled Tribe. When the clear finding of the Scrutiny Committee is that he did not belong to the Scheduled Tribe, the very foundation of his appointment collapses and his appointment is no appointment in the eye of law. There is absolutely no justification for his claim in respect of the post he usurped, as the same was meant for a reserved candidate.
The matter can be looked into from another angle. When fraud is perpetrated the parameters of consideration will be different. Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. This Court in Bhaurao Dagdu Paralkar v. State of Maharashtra dealt with the effect of fraud. It was held as follows in the said judgment:
25. It must also not to forgotten that the petitioner was clearly a temporary employee and the condition contained in the Verification Roll clearly stipulated that furnishing of false information or concealment of material facts would lead to dismissal from service. A temporary employee has no right to the post as has been held by the Supreme Court in the cases of State of U.P. v. Kaushal Kishore Shukla ; Triveni Shankar Saxena v. State of U.P. and Ors. ; Commissioner of Food & Civil Supplies v. Prakash Chandra Saxena ; Ram Chandra Tripathi v. U.P. Public Services Tribunal and Ors. ; Madhya Pradesh Hast Shilpa Vikas Nigam Ltd. v. Devendra Kumar Jain and Anr. .
26. Sri B.B. Paul, learned Counsel for the petitioner, however, contended that the services of the petitioner, even though temporary in nature, could not have been terminated without giving any opportunity of showing cause and in support of his contention he placed reliance upon the decision of the Hon'ble Supreme Court in State of Punjab v. P.S. Cheema , wherein it was observed:
An order terminating the services of a temporary servant or a probationer, it if is by way of punishment, will attract Article 311 of the Constitution; the form of the order is not conclusive, it is the substance of the matter that has to be looked into. Whether or not an order of termination is by way of punishment would depend on the facts and circumstances of each case. This well established position has been reiterated by this Court recently in the case of Sams her Singh v. State of Punjab on a review of the earlier decisions on the point. The trial Court and the first appellate court both took the view that the order of termination in the instant case was by way of punishment. The High Court dismissed the second appeal in limine apparently in view of this concurrent finding. The application for leave to file a Letters Patent Appeal must therefore be held to have been rightly dismissed, there being no ground on which leave could have been granted.
(emphasis supplied)
27. In the aforesaid decision of the Supreme Court, the order of termination of service of a temporary servant was found to be by way of punishment and, therefore, it was declared illegal and void since it was passed without giving any opportunity.
28. In the present case it cannot be said that the order of termination of service was passed by way of punishment. It was an order simplicitor in accordance with the provisions of Rule 5 of the CCS (Temporary) Rules.
29. The Hon'ble Supreme Court in the case of State of U.P. v. Kaushal Kishore Shukla held as follows:
The respondent being a temporary government servant had no right to hold the post, and the competent authority terminated his services by an innocuous order of termination without casting any stigma on him. The termination order does not indict the respondent for any misconduct. The inquiry which was held against the respondent was preliminary in nature to ascertain the respondent's suitability and continuance in service. There was no element of punitive proceedings as no charges had been framed, no inquiry officer was appointed, no findings were recorded, instead a preliminary inquiry was held and on the report of the preliminary inquiry the competent authority terminated the respondent's services by an innocuous order in accordance with the terms and conditions of his service. Mere fact that prior to the issue of order of termination, an inquiry against the respondent in regard to the allegations of unauthorised audit of Boys Fund was held, does not change the nature of the order of termination into that of punishment as after the preliminary inquiry the competent authority took no steps to punish the respondent, instead it exercised its power to terminate the respondent's service in accordance with the contract of service and the Rules.
30. In Ravindra Kumar Misra v. U.P. State Handloom Corporation Ltd. 1987 Supp SCC 739 the Supreme Court observed as follows:
In several authoritative pronouncements of this Court, the concept of 'motive' and 'foundation' has been brought in for finding out the effect of the order of termination. If the delinquency of the officer in temporary service is taken as the operating motive in terminating the service, the order is not considered as punitive while if the order of termination is founded upon it, the termination is considered to be a punitive action. This is so on account of the fact that it is necessary for every employer to assess the service of the temporary incumbent in order to find out as to whether he should be confirmed in his appointment or his services should be terminated. It may also be necessary to find out whether the officer should be tried for some more time on temporary basis. Since both in regard to a temporary employee or an officiating employee in a higher post such an assessment would be necessary merely because the appropriate authority proceeds to make an assessment and leaves a record of its views the same would not be available to be utilised to make the order of termination following such assessment punitive in character.
31. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences the Supreme Court observed as follows:
One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any of the three factors is missing, the termination has been upheld.
Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, it also not stigmatic.... In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job.
32. After referring to the aforesaid decisions, the Supreme Court in the case of State of Punjab and Ors. v. Sukhwinder Singh observed as follows:
It must be borne in mind that no employee whether a probationer or temporary will be discharged or reverted, arbitrarily, without any rhyme or reason. Where a superior officer, in order to satisfy himself whether the employee concerned should be continued in service or not makes inquiries for this purpose, it would be wrong to hold that the inquiry which was held, was really intended for the purpose of imposing punishment. If in every case where some kind of fact-finding inquiry is made, wherein the employee is either given an opportunity to explain or the inquiry is held behind his back, it is held that the order of discharge or termination from service is punitive in nature, even a bona fide attempt by the superior officer to decide whether the employee concerned should be retained in service or not would run the risk of being dubbed as an order of punishment. The decision to discharge a probationer during the period of probation or the order to terminate the service of a temporary employee is taken by the appointing authority or administrative heads of various departments, who are not judicially trained people. The superior authorities of the departments have to take work from an employee and they are the best people to judge whether an employee should be continued in service and made a permanent employee or not having regard to his performance, conduct and overall suitability for the job. As mentioned earlier a probationer is on test and a temporary employee has no right to the post. If mere holding of an inquiry to ascertain the relevant facts for arriving at a decision on objective considerations whether to continue the employee in service or to make him permanent is treated as an inquiry "for the purpose of imposing punishment" and an order of discharge or termination of service as a result thereof "punitive in character", the fundamental difference between a probationer or a temporary employee and a permanent employee would be completely obliterated, which would be wholly wrong.
33. Rule 5(1) of the CCS (Temporary Service) Rules clearly provides that the service of the temporary government servant can be terminated at any time by the notice in writing and the period of such notice shall be one month provided that the service of such a government servant can also be terminated forthwith and on such termination the government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services or as the case may be, for the period by which such notice falls short of one month. The termination order is clearly in conformity with the provisions of Rule 5(1) of the CCS (Temporary Service) Rules. It cannot be said, in the light of the decisions of the Hon'ble Supreme Court referred to above, that the order of termination was by way of punishment. It was an order simplicitor in accordance with the aforesaid rules. In such circumstances the contention of the learned Counsel for the petitioner that the services were terminated in violation of the principles of natural justice cannot be accepted.
34. In any view of the matter it cannot be doubted that the principles of natural justice cannot be put into a strait-jacket formula and that its application will depend upon the fact situation obtaining therein. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. This is what has been held by the Supreme Court in K.L. Tripathi v. State Bank of India and Ors. ; N.K. Prasad v. Government of India and Ors. ; State of Punjab v. Jagir Singh ; Karnataka SRTC v. S.G. Kotturappa and in Viveka Nand Sethi v. Chairman, J&K Bank Ltd. .
35. In Union of India v. Tulsiram Patel the Hon'ble Supreme Court held:
Though the two rules of natural justice, namely, nemo judex in causa sua and audi alter am partem, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal straitjacket. They are not immutable but flexible.
36. It is equally well settled that the principles of natural justice must not be stretched too far and in this connection reference may be made to the decisions of the Supreme Court in Sohan Lal Gupta v. Asha Devi Gupta ; Mardia Chemicals Ltd. v. Union of India and Canara Bank v. Debasis Das .
37. Wade 'On Administrative Law' 5th Edition at pages 472-475 has observed that it is not possible to lay down rigid rules as to when the principles of natural justice are to apply and nor as to their scope and extent. Everything depends on the subject-matter. The application of principles of natural justice, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject-matter of the case. In the application of the concept of fair play there must be real flexibility. There must also have been some real prejudice to the complainant; there is no such thing as a mere technical infringement of natural justice. The requirements of natural justice must depend on the facts and the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth.
38. The Constitution Bench of the Supreme Court in Managing Director ECU, Hyderabad v. B. Karunakar made reference to its earlier decisions and observed:
In A.K. Kraipak v. Union of India, it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why, they should not be made applicable to administrative proceedings also especially when it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial ones. An unjust decision in an administrative inquiry may have a more far reaching effect than a decision in a quasi-judicial inquiry. It was further observed that the concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. The rule that inquiry must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice.
In Chairman, Board of Mining Examination v. Ramjee the Court has observed that natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference of the administrative realities and other factors of a given case, can be exasperating. The Courts cannot look at law in the abstract or natural justice as a mere artifact. Nor can they fit into a rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.
39. In the present case the authority made the enquiries from the District Magistrate as provided in Rule 14(a) of the CRPF Rules to find out the facts when it was informed that a criminal case was pending against the petitioner. Thus, no opportunity was required to be given, particularly when the petitioner has not denied the fact that the criminal case was actually pending and the condition contained in the Verification Roll also clearly stipulated that if it came to the notice that the candidates had suppressed any information then his services would be terminated.
40. In the end learned Counsel for the petitioner submitted that a sympathetic view should be taken. I am unable to accept this contention of the learned Counsel for the petitioner. The petitioner had concealed material information in the Verification Roll. It was this information which would have enabled the employer to judge his character and antecedents. The authorities made the enquiries to find out the correct position. It, therefore, does not lie in the mouth of the petitioner to contend that a sympathetic view should be taken. In this context it may be useful to reproduce a passage from the judgment of the Supreme Court in the case of State of Madhya Pradesh and Anr. v. Dharam Bir wherein it has been observed as follows:
The plea that the Court should have a "human approach" and should not disturb a person who has already been working on this post for more than a decade also cannot be accepted as the Courts are hardly swayed by emotional appeals.
41. In Teri Oat Estates (P) Ltd. v. U.T. Chandigarh and Ors. , it is stated:
We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right....
42. As early as in 1911, Farewell, LJ in Latham v. Richard Johnson and Nephew Ltd. 1911-13 AER Reprint p. 117 observed:
We must be careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous Will O' the Wisp to take as a guide in the search for legal principles.
43. Yet again recently in Ramakrishna Kamat and Ors. v. State of Karnataka and Ors. , the Hon'ble Supreme Court rejected a similar plea for regularisation of services stating:
...We repeatedly asked the learned Counsel for the appellants on what basis or foundation in law the appellants made their claim for regularisation and under what rules their recruitment was made so as to govern their service conditions. They were not in a position to answer except saying that the appellants have been working for quite some time in various schools started pursuant to resolutions passed by Zilla Parishads in view of the Government Orders and that their cases need to be considered sympathetically. It is clear from the order of the learned single Judge and looking to the very directions given a very sympathetic view was taken. We do not find it either just or proper to show any further sympathy in the given facts and circumstances of the case. While being sympathetic to the persons who come before the Court, the Courts cannot at the same time by unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment....
44. The Supreme Court in the case of Kishorilal Charmakar and Anr. v. District Education Officer and Anr. examined the termination of persons who had been appointed under a bona fide mistake by considering them as Scheduled Tribes candidates and the mistake had not occurred on their account. It was submitted on their behalf that they had worked for 10 years as teachers under the interim orders granted by the Court in their favour and since they were not responsible for the mistake they should be allowed to continue. The Court rejected this contention holding that this alone could not entitle them to retain the undeserved benefit which had accrued.
45. There is, therefore, no merit in any of the contentions advanced by the learned Counsel for the petitioner. The Writ Petition is, accordingly dismissed.