Heard learned counsel for the petitioner and the learned standing counsel.
The present petition has been filed challenging the order dated 08.04.2020 whereby the appointment granted to the petitioner under Dying in Harness Rules, 1974, has been cancelled only on the ground of pendency of an NCR No.53 of 2011, under Sections 323, 504, 506 IPC.
Contention of the learned counsel for the petitioner is that the father of the petitioner died on 12.01.2019 while in service as Homeguard and after his death petitioner had applied for compassionate appointment in terms of Dying in Harness Rules, 1974. The petitioner claims that he had fulfilled the eligibility and the document verification was also done and the petitioner also passed the medical as well as physical test held.
It is clear that subsequently it came to the light that an incident had occurred on 29.05.2011 in which a non-cognizable report had been filed against the petitioner under Sections 323, 504, 506 IPC in Case Crime No.53 of 2011. It is only on account of pendency of said case the petitioner was denied the appointment.
The contention of the counsel for the petitioner is that the order passed against the petitioner is bad in law on more than one ground, he argues that the NCR cannot be treated as a criminal case pending against the petitioner, he further argues that in any event the petitioner had disclosed about the said criminal case and thirdly he argues that the order impugned is contrary to the law laid down by the Supreme Court in the case of Avtar Singh Vs. Union of India and others, (2016) 8 SCC 471 in paragraph 38 thereof, the Court has held as under:-
"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."
I have perused the NCR as well as the order impugned, the same is clearly not sustainable in the light of the law laid down by the Apex Court in the case of Avtar Singh (supra).
Accordingly, the writ petition stands allowed and the order dated 04.08.2020 is set aside with a direction to the authority concerned to consider the case of the petitioner for appointment afresh in the light of the aforesaid judgment of the Supreme Court in the case of Avtar Singh (supra) particularly para 38.6, the said exercise shall be carried out and the order shall be passed within a period of four weeks from the date of filing of a copy of this order before the authority concerned.
Order Date :- 16.8.2021 Shahroz