Court No. - 6
Case :- WRIT - A No. - 23265 of 2018 Petitioner :- Ravi Tiwari Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Firdos Ahmad Counsel for Respondent :- C.S.C.
Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioner and the learned Standing Counsel.
This petition calls in question an order dated 29 September 2018 passed by the third respondent holding that the petitioner is not entitled to appointment since he had deliberately failed to disclose the pendency of a criminal case.
The third respondent has taken the view that although the petitioner has been acquitted on 04 August 2018, in light of the suppression of material fact he was not entitled to appointment.
As is evident from a reading of the order impugned it is manifest that the third respondent has failed to bear in mind the principles enunciated by the Supreme Court in Avtar Singh Vs. Union of India and Others, 2016(8) SCC 471 and has proceeded to annul the candidature of the petitioner solely on the ground that there had been a non disclosure of material facts.
The principles which must be borne in mind in such a situation are duly enunciated in Avtar Singh Vs. Union of India and Others which reads thus:-
"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."
Additionally learned Standing Counsel admits that the order impugned could not have been passed by the third respondent and that such consideration should have only been accorded by the SSP Azamgarh. In view of the undisputed position discussed above, learned Standing Counsel submits that the ends of justice would merit the impugned order being set aside and the matter remanded to the fourth respondent for his consideration.
This petition shall stand allowed. The impugned order dated 29 September 2018 is hereby quashed and set aside. The matter shall, in consequence, stand remanded to the fourth respondent for considering the candidature of the petitioner afresh and in light of the principles enunciated in Avtar Singh Vs. Union of India and Others referred to above.
The above consideration process may be concluded by the fourth respondent within a period of two months from the date of presentation of a certified copy of this order.
Order Date :- 30.10.2018 faraz