Court No. - 6
Case :- WRIT - A No. - 14613 of 2019 Petitioner :- Jitendra Kumar Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Siddharth Khare Counsel for Respondent :- C.S.C. Hon'ble Pankaj Bhatia,J.
Heard Sri Siddharth Khare, counsel for the petitioner and learned Standing Counsel for the State-respondents.
The present petition has been filed alleging that the petitioner had appeared for appointment in the U.P. Police Constable and Constable PAC (Male) Direct Recruitment Examination 2015. The petitioner qualified the examination and was placed in the select list. He appeared in the medical examination which too he cleared. Thereafter the petitioner was called upon to file affidavit with regard to his criminal antecedents which the petitioner claims to have filed on 15.6.2018, copy of the said affidavit filed by the petitioner is on record in the counter affidavit filed by the Standing Counsel. In Para 2 of the said affidavit, the petitioner has stated :
“2- यह कि" मेरे कि&रूद्ध "ोई आपराधि/" मु"दमा/मामला मेरी जान"ारी में "भी पंजी"ृ त नहीं हुआ और न ही "ोई पुलिलस कि&&ेचना (INVESTIGATION) लम्बि$%त है। 3- यह कि" मैं कि"सी राष्ट्र कि&रो/ी राजनैधित" पार्टी, "ा सदस्य नहीं रहा और न हूं। 4- यह कि" मझ े "भी भी कि"सी आपराधि/" मामले में कि0रफ्तार नहीं कि"या 0या है। 5- यह कि" "भी आपराधि/" मामले में पुलिलस ने मेरा चालान नहीं कि"या है। 6- यह कि" मैं राज्य सर"ार /भारत सर"ार द्वारा उन"ी से&ा से "भी भी %र्खाा7स्त (DISMISS) नहीं कि"या 0या हू।ं 7- यह कि" आ&ेदन -पत्र में उल्लि:लिर्खात यकिद "ोई %ात 0लत पायी जाय अथ&ा कि"सी सत्य "ो छि?पाया 0या हो तो मुझे पुलिलस आरक्षी "े "ोस7 में सम्बि$मलिलत नहीं होने किदया जाये। "ोस7 से किन"ाल किदया जाये तथा कि&धि/" दण्ड किदया जाये।"
Although initially the petitioner was sent for training, however, subsequently vide order dated 04.11.2018, the selection of the petitioner was cancelled on the ground that the affidavit filed by the petitioner did not make true and full disclosure as was required and during the character verification it was revealed that an FIR was registered against the petitioner in Case Crime No. 0745 of 2017 under sections 147, 148, 149, 323, 504, 506, 304, 336 and 337 IPC read with Section 7 of Criminal Law (Amendment) Act 1932. In view thereof, the petitioner was found to be unfit for absorption and his candidature was cancelled.
Aggrieved against the said cancellation order, the petitioner preferred a writ petition being Writ Petition No. 25075 of 2018 which was disposed of vide order dated 09.01.2019 directing the respondents to pass fresh order in the light of the judgement of Supreme Court in the case of Avtar Singh vs. Union of India and others, (2016) 8 SCC 471. In compliance of the said order fresh order was passed on 04.03.2019 rejecting the representation of the petitioner on the ground that the petitioner has not made true and full disclosures in the affidavit filed by him.
Sri Siddharth Khare, counsel for the petitioner, argues that the First Information Report was not lodged in the name of the petitioner and, subsequent to the said FIR, a charge-sheet was filed which did not include the name of the petitioner, copy of the said charge-sheet dated 08.04.2018 is on record. He thus argues that on the date of filing of the affidavit no case was pending against the petitioner in respect of the FIR. He also argues that as the FIR was not lodged in the name of the petitioner, he was not aware of any FIR being lodged, thus, there was no non-disclosure of correct facts in the affidavit. He lastly argues that in any event the whole purpose of character verification is to ascertain whether the candidate is involved in any criminal proceedings which is likely to have an adverse effect, if the employment is given to the said candidate. He further argues that a report was furnished by the District Magistrate in pursuance of the Government Order dated 28.4.1958 which was in favour of the petitioner and finds mention in the first order passed against the petitioner dated 04.11.2018.
The Standing Counsel, on the other hand, argues that although the name of the petitioner did not appear in the FIR, the alias name of the petitioner did surface in the FIR. It is further argued that as the father of the petitioner was also implicated in the said Case Crime No. 0745 of 2017. It cannot be comprehended that the petitioner was not aware that his name appears as an alias in the said FIR. In the light of the said, the impugned order has been justified on the ground that as on the date of filing of the affidavit as the petitioner was aware that an FIR has been filed against him, he ought to have disclosed the said fact while filing the affidavit which has not been done. There is no dispute that no charge sheet has been filed against the petitioner in pursuance of the investigation carried out in Case Crime No. 745 of 2017.
I have perused the affidavit which is on record and the relevant extracts whereof have been extracted here- in-above which is to the effect that no criminal case has been instituted or is pending investigation against the petitioner. The said affidavit cannot be faulted, in view of the fact that admittedly the name of the petitioner did not surface as an accused in the FIR and only the alias name surfaced. The averment in the affidavit that the petitioner as per his knowledge was not aware of any case cannot be faulted, as there is nothing on record to demonstrate that the petitioner was aware and had knowledge of the filing of the said case which admittedly is not in the name of the petitioner, even otherwise the dictum of the Supreme Court in the case of Avtar Singh (supra). As to when an adverse inference can be drawn to the effect that absorbing a candidate with criminal antecedents can have adverse effect on the services to be rendered. The Supreme Court has laid down the conclusions in Para 38 of the said judgement which reads as under:
“We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize 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 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 of the case, if any, while giving such information.
38.3. The employer shall take into consideration the 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 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 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 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 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 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 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 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.
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 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. 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 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.
The Supreme Court in Para 38.11 categorically held that before a person can be held to be guilty of suppression the knowledge of the fact must be attributable to him. In the present case, two orders have been passed against the petitioner dated 04.11.2018 and 04.3.2019, in both of the said orders, there is nothing on record to demonstrate that the petitioner was in knowledge and had deliberately not disclosed the said facts or had intended to obtain the employment by suppressing the material facts.
Even if it is presumed that the petitioner had not disclosed facts with regard to lodging of the FIR, it is admitted fact that no charge sheet was filed against the petitioner, thus, the suppression, if any, was not so material so as to hold that the absorption of the petitioner would adversely affect the service, there is no finding to that effect in both the said orders.
In the present case, this Court is of the view that there was no suppression of material facts with the knowledge and intent which can be attributed to the petitioner. Thus, the orders dated 04.03.2019 and 04.11.2018 are clearly unsustainable, being contrary to the judgement of the Supreme Court in the case of Avtar Singh (supra).
Accordingly, the order dated 04.03.2019 as well as order dated 04.11.2018, passed by Superintendent of Police, District Ballia (respondent no. 4) are set aside.
The petition is allowed with direction upon the respondent to grant employment in terms of the selection. The said fresh orders as directed above shall be passed within a period of six weeks from today and the petitioner shall be permitted to join his duty in accordance with law.
The writ petition is allowed in terms of the said direction.
Copy of the order downloaded from the website of Allahabad High Court shall be accepted/treated as certified copy of the order.
Order Date :- 22.9.2021 Puspendra