Court No. - 38
Case :- WRIT - A No. - 2142 of 2019 Petitioner :- Santosh Kumar Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Siddharth Khare Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Petitioner had earlier approach this Court by filing Writ Petition No.20169 of 2018, which was disposed of vide following orders passed on 19.9.2018:-
"Petitioner has been selected for appointment to the post of Constable in U.P. Police in the recruitment exercise initiated in the year 2015. He was required to file affidavit disclosing his antecedents. Petitioner in his affidavit dated 11.6.2015 disclosed that there was no criminal case against him. Later on, petitioner came to know about filing of first information report in Case Crime No. 625 of 2017 under Sections304-B and 498-A I.P.C. and Section 3/4 of D.P. Act. lodged by his sister-in-law. It is stated that a final report has already been submitted in the matter which was also accepted by the competent court on 25.1.2018. Submission is that for such reasons, authorities would not be justified in denying consideration to petitioner's claim for appointment.
Grievance of the petitioner is that only on account of aforesaid proceedings, respondents have withheld issuance of appointment to the petitioner and that he has not been sent for training. Submission is that in view of the law laid down by the Apex Court in Avtar Singh Vs. Union of Indian and others, (2016) 8 SCC 471, his claim for appointment is liable to be considered in accordance with law.
After analyzing the law on the subject, the Hon'ble Supreme Court has been pleased to hold as under in para 38 in Avtar Singh (supra):- "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."
Learned Standing Counsel submits that the grievance of the petitioner shall be examined by the authority concerned, in accordance with law.
Considering the facts and circumstances, noticed above, this petition stands disposed of, permitting the petitioner to approach the respondent no.4, in respect of his grievance raised before this Court, within a period of two weeks from the date of presentation of certified copy of this order. The petitioner shall be at liberty to annex all materials in support of his claim as has been highlighted before this Court. In case such materials are placed before the authority concerned, the same shall be examined, in accordance with the law laid down by Apex Court in Avtar Singh (supra). The required consideration shall be made by the authority concerned within a period of two months thereafter."
Claim of the petitioner has consequently been considered and rejected by the order impugned dated 21.12.2018, which is contained in Annexure-8 to the writ petition.
Perusal of the order impugned would go to show that the Superintendent of Police, Jalaun has relied upon a report of the District Magistrate wherein petitioner's character has not been verified and consequently petitioner has been denied appointment.
Learned counsel for the petitioner points out that a first information report was lodged in Case Crime No.625 of 2017 under Sections 304-B read with 498-A IPC and section 3/4 of Dowry Prohibition Act, Police Station Kisani, District Mainpuri. The first information report has been lodged by petitioner's sister-in-law against petitioner's brother. After investigation a charge sheet has been submitted in which petitioner's name is not included. This charge sheet has been brought on record which mentions that upon investigation implication of petitioner in the aforesaid criminal case is not made out. The petitioner further submits that he was otherwise not aware of the first information report lodged in the matter, inasmuch as neither he was ever associated with the investigation nor he was ever apprehended nor had applied for bail etc.
A counter affidavit has been filed by the respondents in which the facts narrated on behalf of the petitioner are not in issue. It is, however, submitted that the District Magistrate has not certified integrity and character of petitioner, and therefore, appointment has rightly been denied to him.
In the facts of the present case, petitioner specifically asserts that he was not aware of the lodging of first information report. Though a counter affidavit has been filed but no material has been placed before the Court, which may even remotely suggest that petitioner was aware of lodging of first information report. The investigation has otherwise been carried out in the matter and petitioner's implication has not been found. The charge sheet in that regard appears to have been accepted by the court and no supplementary charge sheet has been filed.
In that view of the matter, petitioner's implication is not shown to exist in the aforesaid criminal case. The authority concerned, however, does not appear to have taken note of these facts. No other material has been placed on record against the petitioner. In the facts and circumstances of the present case, the rejection of petitioner's candidature for appointment vide order dated 21.12.2018, therefore, cannot be sustained. The order impugned is otherwise not liable to be sustained inasmuch as there is no consideration of the observations made by this Court in the earlier order as per which petitioner's claim had to be examined with reference to the law laid down by the Apex Court in Avtar Singh Vs. Union of Indian and others, 2016(8) SCC 471.
Writ petition, consequently, succeeds and is allowed. Order dated 21.12.2018 stands quashed. The authority concerned shall take a fresh decision in the matter in light of the observations made above as also the observations contained in the judgment of the Apex Court in Avtar Singh's case (supra), within a period of two months from the date of presentation of certified copy of this order.
Order Date :- 31.7.2019 Ashok Kr.