1. Heard Sri Kamal Kishor Mishra, learned counsel for the petitioner and Sri Vijay Pratap Singh, learned Standing Counsel for the State.
2. The petitioner was selected as a Police Constable in the U.P. Police. The exercise of verification of character and antecedents of the petitioner was made by the State authorities pursuant to his selection. The petitioner was required to submit a declaration in the form of an affidavit. The petitioner made the following declarations on affidavit:
"3. यह की मुझे किसी न्यायालय द्वारा किसी भी प्रकार की सजा नहीं दी गयी है।
4. यह की मेरे विरुद्ध कोई आपराधिक अभियोग न तो पंजीकृत है और न कभी पंजीकृत हुआ है।
5. यह की मेरे विरुद्ध कोई भी आपराधिक अभियोग किसी भी न्यायालय में विचाराधीन नहीं है।
6. यह की मेरे विरुद्ध कोई भी अभियोग विवेचनाधीन नहीं है।
7. यह की मुझे कभी भी किसी भी आपराधिक मामले में गिरफ्तार नहीं किया गया है ।
8. यह की कभी मेरा चालान किसी भी आपराधिक मामले में नहीं किया गया है।"
3. The affidavit was submitted by petitioner in the verification procedure. The declarations made by the petitioner in the said affidavit that no criminal case was pending against him in a court of law and no criminal case was registered against him were duly verified. The said declarations in the affidavit were found to be false upon the said enquiry. Prior to the date the petitioner made the offending declaration, a criminal case already registered against him as Criminal Case No. 09 of 2003, State Vs. Radheshyam. The said case arose out of Case Crime No. 1642 of 2004, under Sections 147, 323, 504, 506, 452 I.P.C. and was pending against him in the court of learned Additional Chief Judicial Magistrate-I, District Gorakhpur. The F.I.R. was registered as Case Crime No. 1642 of 2004 (State Vs. Radheshyam) against the petitioner and other co-accused persons on 11.07.2003.
4. Consequently, the respondent authorities initiated action against the petitioner. The services of the petitioner were terminated by order dated 06.08.2006. Aggrieved by the order of dismissal from service, the petitioner instituted a writ petition before this Court. The writ petition was registered as CMWP No. 43813 of 2006, Parmanand Rai Vs. State of U.P. and Ors. The writ petition was finally decided by judgment and order entered by this Court on 18.8.2006. The operative portion of the judgment reads thus:
"As to whether petitioner had knowledge of the aforesaid criminal case is essentially question of fact, which can be very well looked into by the authority concerned, and it is for the authorities concerned to take decision in this respect.
As specific allegations is being made by the petitioner that he had no knowledge of the aforesaid criminal case as he was neither arrested nor investigated, consequently liberty is given to the petitioner to represent before the authority concerned who has passed the impugned order in question and thereafter it would be open to the authority concerned to examine this aspect of the matter and take appropriate decision on the same in accordance with law and there would be no compulsion on the part of the respondents to appoint the petitioner on any account, and respondents would be free to exercise their own independent discretion.
With the above directions/observations present writ petition is dismissed.
No orders as to cost."
5. The petitioner took the order of learned Single Judge in appeal. The said appeal was registered as Special Appeal No. 1023 of 2006. The order passed by the learned Special Appellate Court dated 13.09.2006 is extracted hereunder:
"We are in respectful agreement with the reasoning given and the order passed by Hon'ble Mr. Justice V. K. Shukla, J. on the 18the of August, 2006.
At the instance of the appellant, we clarify is already implicit in his Lordship's order , i.e. that it the bonafides and the pleaded ignorance of the appellant-writ petitioner, then and in that event, they will be under a compulsion to given appointment just as in the order case, they will be free to refuse such appointment."
6. The order passed by the learned special appellate court in Special Appeal No. 1023 of 2006, the reference of which has been made in the order dated 13.09.2006 is extracted hereunder:
"Similar order is passed in this case also as in the earlier case (Special Appeal No. 1023 of 2006) i.e. if the appellant makes out good faith and proves ignorance, he gets the appointment, otherwise not."
7. The fact of the registration of the criminal case and the pendency of the criminal case before the trial court prior the date of the offending declaration on affidavit is not denied by the petitioner. It is a matter of record. However, the consistent stand of the petitioner before this Court as well as the respondent authorities is that the petitioner did not have any knowledge of the registration or pendency of the criminal case at the time he made offending declaration on affidavit. He acted in good faith. The fact whether the petitioner had knowledge of the pendency of the criminal case before the trial court or the registration of the criminal case in the police station was investigated by the respondent authorities in compliance of the orders passed by this Court.
8. In compliance of the orders passed by this Court, an enquiry was caused to be conducted by the authorities.
9. An enquiry report was submitted by the Circle Officer, Bansagaon Gorakahpur on 17.11.2006 before the Senior Superintendent of Police, Gorakhpur. The enquiry upon perusal of relevant records found that the summons taken out by the trial court were not served upon the petitioner. The warrants issued by the trial court were not executed against the accused persons, including the petitioner, by the police authorities. The enquiry found that the summons as well as warrants issued by the learned trial court were not entered in the record maintained by the police station. Further the records of the trial court also revealed that the summons were not served upon the accused persons including the petitioner and the warrants were not executed against them. The enquiry thus concluded that the summons were not served upon and the warrants were not executed against the petitioner. The enquiry officer went on to conjecture that the non-service of the summons and non execution of the warrants were either because the summons and warrants were not issued by the learned trial court or there was discrepancy in the service of the summons.
10. The order of termination from service of the petitioner by order dated 06.08.2006 was, however, confirmed by the order dated 12.03.2007 passed by the Senior Superintendent of Police, Gorakhpur, i.e. respondent no. 3.
11. The petitioner is aggrieved by the order dated 12.03.2007 and the order dated 06.08.2006 passed by the respondents. He has assailed the order dated 06.08.2006 and the order dated 12.03.2007 in the instant writ petition.
12. The order dated 12.03.2007 has been passed on the footing that the petitioner was aware of the pendency of the criminal case against him.
13. The order dated 12.03.2007 records that the petitioner had given a statement under Section 161 of the Cr.P.C. on 24.05.2004 to the Investigating Officer during the course of the investigation into the criminal case. With this finding, the authority observed that the petitioner had full knowledge of the pendency of the criminal case against him. Hence, the declaration made by the petitioner on affidavit was false.
14. The petitioner has contested the finding that his statement was recorded under Section 161 Cr.P.C. by the Investigating Officer on 24.05.2004. The submission is that the petitioner did not give any statement to the Investigating Officer. The statement of the petitioner was fabricated by the Investigation Officer.
15. There is prima facie weight in the submission of Mr. Mishra, learned counsel for the petitioner.
16. The offences which were under investigation included an offence under Section 452 I.P.C. It is a non-bailable offence. There was no reason for the Investigating Officer not to arrest the petitioner while recording the statement of the latter in an investigation of an offence committed under Section 452 of the Indian Penal Code. The fact that the petitioner was never arrested lends support to his defence that he did not give his statement to the Investigating Officer under Section 161 Cr.P.C. and he was not aware of the pendency of the criminal case or investigation against him.
17. Sri Vijay Pratap Singh, learned Standing Counsel submits that this is a matter of fact which needs to be enquired into by the competent authority.
18. The penal consequences accruing to a candidate by reason of a false declaration made in the course of verification at the time of his recruitment underwent to the substantial change when the Hon'ble Supreme Court handed down the judgment in the case of Avtar Singh Vs. Union of India and Ors. reported in 2016 (8) SCC 471. The Hon'ble Supreme Court in Avtar Singh (supra) held thus:
"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:
(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.
(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.
(3) The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
(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 recourse appropriate to the case may be adopted: -
(a) 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.
(b) Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
(c) 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.
(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.
(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.
(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.
(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.
(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.
(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.
(11) Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."
(emphasis added)
19. The findings of the Enquiry Officer reinforce the submission of the petitioner that he had no knowledge of the criminal case which was pending against him. In view of the factual narrative in the preceding paragraphs, the recital in the order impugned dated 12.03.2007 passed by the Senior Superintendent of Police, Gorakhpur to the effect that the statement of the petitioner was recorded by the Investigating Officer in the course of investigation into the said crime and hence was aware of the pendency of the case requires fresh investigation. The said finding of the enquiry officer needs to be revisited after consideration of the defence of the petitioner. The enquiry has to be conducted by the competent authority in view of the denial of knowledge of the criminal case by the petitioner and the law laid down by the Hon'ble Supreme Court in the case of Avtar Singh (supra).
20. A specific finding has to be returned by the competent authority in this regard. It is not a province of this Court to investigate disputed questions of fact.
21. There is yet another aspect of the matter. It is submitted that at the stage of commission of the alleged offence, the age of the petitioner was about 17 years. The gravity of the offence has to be seen in the context of social realities. The practice of framing young members of a family in old disputes in the villages is not uncommon. This is not only an abuse of the process of court but also has far-reaching consequences on our social structure. The sole aim of falsely implicating young members of a feuding family is to use the criminal case as bargaining lever. The criminal cases are employed to ruin the future of the offsprings of the family in opposition and to exact revenge. In such cases, the taint of an alleged indiscretion in early life will pursue a young man to the end of his life. The Hon'ble Supreme Court took cognizance of these realities in the case of Commissioner of Police and Ors. Vs. Sandeep Kumar reported at 2011 (4) SCC 644. The Hon'ble Supreme Court held thus:
"8. We respectfully agree with the Delhi High Court that the cancellation of his candidature was illegal, but we wish to give our own opinion in the matter. When the incident happened the respondent must have been about 20 years of age. At that age young people often commit indiscretions, and such indiscretions can often be condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives.
9. In this connection, we may refer to the character "Jean Valjean" in Victor Hugo's novel Les Miserables, in which for committing a minor offence of stealing a loaf of bread for his hungry family Jean Valjean was branded as a thief for his whole life. The modern approach should be to reform a person instead of branding him as a criminal all his life.
10. We may also here refer to the case of Welsh students mentioned by Lord Denning in his book Due Process of Law. It appears that some students of Wales were very enthusiastic about the Welsh language and they were upset because the radio programmes were being broadcast in the English language and not in Welsh. They came up to London and invaded the High Court. They were found guilty of contempt of court and sentenced to prison for three months by the High Court Judge. They filed an appeal before the Court of Appeals. Allowing the appeal, Lord Denning observed:
"I come now to Mr Watkin Powell's third point. He says that the sentences were excessive. I do not think they were excessive, at the time they were given and in the circumstances then existing. Here was a deliberate interference with the course of justice in a case which was no concern of theirs. It was necessary for the Judge to show--and to show to all students everywhere--that this kind of thing cannot be tolerated. Let students demonstrate, if they please, for the causes in which they believe. Let them make their protests as they will. But they must do it by lawful means and not by unlawful. If they strike at the course of justice in this land--and I speak both for England and Wales--they strike at the roots of society itself, and they bring down that which protects them. It is only by the maintenance of law and order that they are privileged to be students and to study and live in peace. So let them support the law and not strike it down.
But now what is to be done? The law has been vindicated by the sentences which the Judge passed on Wednesday of last week. He has shown that law and order must be maintained, and will be maintained. But on this appeal, things are changed. These students here no longer defy the law. They have appealed to this Court and shown respect for it. They have already served a week in prison. I do not think it necessary to keep them inside it any longer. These young people are no ordinary criminals. There is no violence, dishonesty or vice in them. On the contrary, there was much that we should applaud. They wish to do all they can to preserve the Welsh language. Well may they be proud of it. It is the language of the bards--of the poets and the singers--more melodious by far than our rough English tongue. On high authority, it should be equal in Wales with English. They have done wrong--very wrong--in going to the extreme they did. But, that having been shown, I think we can, and should, show mercy on them. We should permit them to go back to their studies, to their parents and continue the good course which they have so wrongly disturbed." (Vide Morris v.Crown Office [(1970) 2 QB 114 : (1970) 2 WLR 792 : (1970) 3 All ER 1079 (CA)] , QB at p. 125C-H.) In our opinion, we should display the same wisdom as displayed by Lord Denning.
11. As already observed above, youth often commits indiscretions, which are often condoned.
12. It is true that in the application form the respondent did not mention that he was involved in a criminal case under Sections 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified. At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter."
22. Similar observations were made by the Hon'ble Supreme Court in Avtar Singh (supra).
23. Twelve years have passed since the petitioner was selected as a constable and was faced with the prospect of building a new life and a career for himself as a responsible citizen of this country. The dream cannot be cut short by arbitrary action on the part of the respondent authorities. Nor can it be curtailed by unscrupulous litigants who have no regard for the rule of law and use the process of court to ruin the lives of the members of rival family. The nature and gravity of the offence and any other special or mitigating circumstances also need to be examined.
24. All the facts and factors shall also be considered by the competent authority, while passing a final order, in the light of the law laid down by the Hon'ble Supreme Court in Avtar Singh (surpa) and Commissioner of Police (supra), and consistent with the observations made in the judgment.
25. In view of the facts found in the earlier part of the judgment and legal narrative in the preceding paragraphs, the order dated 12.03.2007 and the order dated 06.08.2006 are arbitrary and illegal. The order dated 12.03.2007 and the order dated 06.08.2006 passed by the respondents are quashed.
26. The matter is remanded back to the respondent no. 3 to investigate the matter in the light of the law laid down by the Hon'ble Supreme Court and consistent with the observations made in this judgment.
27. A mandamus is issued commanding the respondent no. 3 to execute the following directions:
I. The respondent no. 3 shall reinvestigate the matter.
II. The respondent no. 3 shall provide material which is adverse to petitioner and given him an opportunity to refute the same.
III. The respondent no. 3 shall provide an opportunity of hearing to the petitioner before passing a final order in the matter.
IV. The respondent no. 3 shall pass a reasoned and a speaking order consistent with the observations made in this judgement, in accordance with law.
V. The exercise shall be completed within a period of four months from the date of receipt of a certified copy of this order.
28. The writ petition is allowed.
Order Date :- 12.9.2018 Dhananjai