Court No. - 58
Case :- WRIT - A No. - 16036 of 2018 Petitioner :- Rahul Giri Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Rajat Agarwal,Rahul Kumar Tyagi,Vir Pratap Singh Counsel for Respondent :- A.S.G.I.
Hon'ble Ashwani Kumar Mishra,J.
Petitioner has been appointed as Constable (G.D.) in Central Industrial Security Force (CISF), and a letter of appointment has been issued to him on 20th March, 2017. It is alleged that while filling up the character certificate form, petitioner has clearly disclosed pendency of a criminal case against him. It is stated that for such reason, petitioner has not been allowed to join so far. Contention of the petitioner is that the criminal proceedings have ultimately resulted in acquittal of the petitioner on 6.5.2017 by granting benefit of doubt. It is argued that though all such facts have been brought on record before the authority concerned, but no decision has yet been taken in the matter. Reliance has been placed upon a judgment of the Apex Court in Avtar Singh Vs. Union of India and others, reported in (2016) 8 SCC 471, wherein following ratio has been laid down by the Apex Court after examining the law on the subject in para 38:-
"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."
Grievance is that claim of petitioner for appointment and for being sent on training has not been examined so far.
Sri Om Prakash Yadav appearing for the respondents submits that the claim of petitioner shall be considered by respondent no.3, in accordance with law.
In the facts and circumstances, this writ petition stands disposed of with a direction upon the respondent no.3 to accord consideration to petitioner's claim for appointment and for being sent on training, keeping in view the facts and circumstances, noticed above, as well as ratio laid down by the Hon'ble Supreme Court in Avtar Singh (supra). The required consideration shall be made within a period of three months from the date of presentation of certified copy of this order.
Order Date :- 31.7.2018 Anil