Court No. - 38
Case :- WRIT - A No. - 11281 of 2019 Petitioner :- Mohd. Taufik Khan Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Mir Sayed,Ajay Shankar Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Petitioner has been selected for appointment to the post of Platoon Commander in PAC. However, his claim for appointment has not been processed on account of his implication in Case Crime No. 139 of 2015, under Sections 147, 148, 149, 341, 307, 302, 504, 506 IPC and Section 27 of Arms Act, Police Station Durgawati, Bihar.
Learned counsel for the petitioner submits that neither any chargesheet was served against him nor his implication has been found in the said Case Crime No. 139 of 2015. It has also been submitted that petitioner has also disclosed this fact in his affidavit but his claim has not been examined for issuance of appointment letter. Reliance has been placed upon a judgment of the Apex Court in Avtar Singh Vs. Union of Indian and others, 2016 (8) SCC 471 in order to submit that relevant factors which have been specified in paragraph 38, are liable to be taken note of, for arriving at a correct conclusion with regard to claim of the petitioner, which has not been examined with reference to law laid down in Avtar Singh (supra).
After analyzing the law on the subject, the Hon'ble Supreme Court has been pleased to hold as under in para 38 in Avtar Singh (supra):-
"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 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."
Learned Standing Counsel submits that the grievance of the petitioner would be examined by the authority concerned, in accordance with law.
A perusal of the order would go to show that the petitioner's claim has not been examined with reference to the considerations laid in the judgment of the Apex Court in Avtar Singh (supra).
Considering the facts and circumstances, noticed above, this petition stands disposed of with a direction upon the respondent no. 3 to reconsider the matter relating to appointment of petitioner, keeping in view the law laid down by Apex Court in Avtar Singh (supra), by passing a reasoned order within a period of three months, from the date of presentation of a certified copy of this order. The petitioner shall be at liberty to submit all materials before the authority concerned in support of his claim.
The action impugned in the present writ petition shall remain subject to the fresh order to be passed by the authority concerned, as indicated above.
Order Date :- 30.7.2019 Ranjeet Sahu