Court No. - 4
Case :- SPECIAL APPEAL No. - 1309 of 2007 Appellant :- State Of U.P. & Others Respondent :- Antaryami Nath Goswami Counsel for Appellant :- S.C.
Counsel for Respondent :- A.P.Tewari
Hon'ble Bala Krishna Narayana,J. Hon'ble Irshad Ali,J.
Heard learned Standing Counsel for the State and Sr. A.P. Tewari, learned counsel for the sole respondent, Antaryami Nath Goswami.
This special appeal has been preferred by the State of U.P. against the order dated 16.11.1999 passed by learned Single Judge in Civil Misc. Writ Petition No. 2118 of 1999.
Brief facts of this case as emerging out from the perusal of the impugned judgement and order and the other material brought on record are that after being selected for being appointed as Constable pursuant to the selection held on 9.9.1998, the petitioner along with the other selected candidate was required to submit affidavit for character verification. The said affidavit contained a column requiring the candidate to disclose whether the candidate was involved in any criminal case and in case the reply of the candidate was in the affirmative, the candidate was required to furnish the details of such criminal cases. The petitioner-respondent left the aforesaid column in the affidavit blank which was filed by him before the concerned authority on 9.9.1998.
Before he was sent for training, it was found that on the date of filing of his affidavit, the petitioner-respondent was accused in a criminal case under Section 323, 325, 504 and 506 IPC and in this regard the Commandant sought guidance from District Magistrate, Kushinagar whether in view of the petitioner-respondent being an accused in a criminal case on the date of his selection, it was advisable to retain him in service or not. In response to the query made by the Commandant, the District Magistrate, Kushinagar by his letter dated 31.10.1988 informed him that the petitioner-respondent was fully eligible for government service and accordingly he was sent to 43 Batallion P.A.C. for completion of his training on 28.10.1998. However, before the petitioner could complete his training, his service was terminated on 5.1.1999 on the ground of his having failed to disclose in the affidavit submitted by him during the character verification that on the date of his selection, he was accused under Section 323, 325, 504 and 506 IPC.
Before the learned Single Judge, the petitioner assailed the order of his termination on various grounds, including the grounds that the same could not have been passed without affording any opportunity to the petitioner and that the petitioner-respondent stood acquitted before he was sent for training.
The State contended before the learned Single Judge that the acquittal of the petitioner in the aforesaid criminal case had no bearing in the matter as the petitioner failed to disclose the necessary particulars of the criminal case while filling the prescribed form and hence his service was rightly terminated.
The learned Single Judge, however, by his order dated 16.11.1999, allowed the writ petition and quashed the order impugned dated 5.11.1999 holding as here under :
(i) The impugned order was passed by the respondents in the exercise of their power under the provision of U.P. Temporary Government Servant Rules 1975 on the ground that the services of the petitioner were no longer required. Although same was a termination simplicator but in the counter affidavit it had been disclosed that the services of the petitioner had been dispensed with on the allegation of not furnishing particulars relating to pending criminal case at the time of his appointment and hence in respect of such ground termination was not possible without giving the petitioner an opportunity.
(ii) Although the respondents had alleged in paragraph 6 of the counter affidavit filed before the learned Single Judge that the petitioner kept the requisite column in the proforma of the application blank but no proforma of such application was enclosed by the respondents and hence it was not possible to hold that the petitioner had made any wrong statement to mislead the respondents and hence it cannot be said that he had made any wrong statement.
(iii) The criminal case had since ended in acquittal of the petitioner.
Learned Standing Counsel submitted that in view of the settled legal proposition as propounded by the Apex Court in the case of Avtar Singh Versus Union of India and others reported in 2016 (8) SCC 471, the impugned order passed by the learned Single Judge cannot be sustained and is liable to be set aside because the suppression made by the petitioner while furnishing his personal details in the prescribed form/affidavit cannot be considered to be a minor suppression on his part and it's for the employer to decide whether the petitioner-respondent was fit to be retained in service or not and whether the suppression made by the petitioner- respondent was liable to be ignored. He also submitted that order terminating the petitioner's service being a termination simplicitor, no opportunity was required to be given to the petitioner-respondent.
Per contra Sri A.P. Tewari, learned counsel appearing for the petitioner/respondent relying on clause (a) of paragraph 13 of the Avtar Singh (supra) and submitted that at the time of his selection, the petitioner was a young man aged about 19 years and the criminal case in which he was accused at the time of submitting of the affidavit was under petty offences. Moreover, before he was sent for training, he was acquitted in the said criminal case and hence under the circumstances of this case his employer ought to have ignored the suppression of fact by condoning the lapse. He next submitted that in view of the reasons given by the learned Single Judge, the petitioner's service could not be terminated without giving him any opportunity.
We have heard the learned counsel for the parties present and perused the impugned order as well as the other material brought on record.
Upon perusal of the affidavit of the petitioner which has been brought on record as Annexure-4 to the affidavit filed in the instant appeal by the appellants, we find that paragraph 4 of the affidavit specifically required the concerned candidate to disclose whether any criminal case was pending against him or registered and whether he had been convicted in any criminal case or any investigation against him was pending in any police station. No reply was given by the petitioner. The aforesaid column was left blank by him but before the petitioner was sent for training, he was acquitted in the criminal case. Thus, the learned Single Judge was not right in observing that since no proforma of the application was enclosed by the appellant/respondent no. 3, hence it could not decided by him that the petitioner-respondent had made any wrong statement to mislead the respondents.
However, we are in full agreement with the view taken by the learned Single Judge that the impugned order was not termination simplicitor but the service of the petitioner-respondent had been dispensed with on the allegation of not furnishing particulars relating to pendency of criminal case at the time of his appointment and hence on that ground the termination was not possible without giving the petitioner an opportunity.
For the aforesaid reason, we decline to interfere with the impugned order and dismiss the special appeal.
However, this order will not preclude the appellants from proceedings against the petitioner-respondent afresh after affording him opportunity of hearing.
Order Date :- 23.2.2018/SA