Court No. - 6
Case :- WRIT - A No. - 5255 of 2020 Petitioner :- Rahul Respondent :- The Union Of India And 5 Others Counsel for Petitioner :- Atipriya Gautam,Vijay Gautam(Senior Adv.),Vinod Kumar Mishra Counsel for Respondent :- Vikash Chandra Tripathi,Vijay Kumar Singh
Hon'ble Pankaj Bhatia,J.
The present writ petition has been filed challenging the order dated 20.12.2019 whereby the employment notice and the candidature of the petitioner for the post of Constable (exe) in Railway Protection Special Force (RPSF) has been cancelled on the ground of non-disclosure of Criminal Case No. 125 of 2019, under Section 147, 148, 149, 323, 307, 504 & 506 IPC.
The contention of the counsel for the petitioner is that although a case was registered against the petitioner on 18.4.2019, a Final Report was filed in the said case insofar as the petitioner was concerned vide report dated 20.6.2019. It is stated that in that context, the disclosure was not made in the affidavit as allegedly no case was pending against the petitioner to his knowledge on the date when the form was filled. The order impugned has been passed only on account of pendency of a criminal case and non-disclosure thereof. The authorities did not consider the final report.
As pleaded by the petitioner, the order fails to follow the mandate of the Supreme Court in the case of Avtar Singh Vs. Union of India and others, 2016 (8) SCC 471 wherein following has been laid down:
"The Apex Court in case of Avtar Singh (supra) has laid down the guidelines for considering the issue of suppression of material facts while seeking appointment and the same are extracted hereasunder:
"38. 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 recourse 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."
Thus, what is clear is that as final report was filed, there was no error on the part of the petitioner in not disclosing any case as technically it cannot be said that any case was pending against him, which fact should have been taken into consideration prior to passing of the order dated 20.12.2019. Thus, on both the counts, the order dated 20.12.2019 is set aside. The respondents are directed to pass fresh order after taking into consideration the final report as well as the mandate of Supreme Court in the case of Avtar Singh (supra).
The said exercise shall be completed within a period of three months from the date of receipt of a copy of this order.
The writ petition stands allowed in terms of the said order.
Copy of the order downloaded from the official website of this Court shall be treated as certified copy of the order.
Order Date :- 29.7.2021 vinay