Court No. - 34
Case :- WRIT - A No. - 53089 of 2015 Petitioner :- State Of U.P. And 6 Others Respondent :- State Public Service Tribunal And Another Counsel for Petitioner :- V.K. Chandel,C.S.C.
Counsel for Respondent :- Sri Vijay Gautam,Adarsh Singh,Indra Raj Singh,S.C.
Hon'ble Sudhir Agarwal,J. Hon'ble Neeraj Tiwari,J.
1. Heard learned counsel for the petitioners and Sri I.R. Singh, advocate for respondent no. 2.
2. The writ petition under Article 226 of Constitution of India has been filed assailing judgement and order dated 11.5.2015 passed by State Public Service Tribunal in Claim Petition No. 491 of 2010 setting aside order dated 20.11.2007 whereby appointment of claimant- respondent was cancelled and appellate and revisional orders dated 31.8.2009 and 22.12.2009 have been quashed.
3. The facts in brief are that claimant-respondent appeared in recruitment for post of Constable and after selection, he was appointed provisionally on the post of Constable on 27.1.2015. At the time of joining service, claimant-respondent had filed an affidavit dated 6.1.2005 before Appointing Authority and therein, paras 4, 5, 6, 7 and 8 read as under;
“4- ;g fd esjs fo:} dksbZ vijkf/kd eqdnek@ekeyk gLr{ksih; vFkok vgLr{ksih; esjh tkudkjh eas u dHkh ithd`r gqvk gS vkSj u gh ejs s fo:} dksbZ iqfyl foospuk (iqfyl bUosLVhxs'ku) yfEcr gSA
5- ;g fd dHkh Hkh eq>s vijkf/kd ekeys (gLr{ksih; vFkok vgLr{ksih;) esa fxjQrkj ugha fd;k x;k vkSj u gh eSaus dHkh fdlh ,sls vijkf/kd ekeys esa U;k;ky; eas vkReleiZ.k fd;k gSA
6- ;g fd vijkf/kd ekeys tks esjs fo:} iathd`r gq, gSa ftleas ejks pkyku fd;k x;k Fkk tks esjs fo:} fopkjk/khu U;k;ky; vFkok foospuk/khu iqfyl gks mudk fooj.k fuEuor gS%& fooj.k 'kwU; gSA
7- ;g fd vijkf/kd ekeys tks esjs fo:} U;k;ky; eas pys vkSj ftlesa nf.Mr gqvk nks"k eqDr gqvk@fMLpktZ gqvk mudk fooj.k fuEuor gS%& fooj.k 'kwU; gSA
8- ;g fd eSa fdlh vijkf/kd ekeys eas /kkjk 169 n.M izfdz;k lfga rk ds vUrZxr dHkh fjgk ugha gqvk gSA vFkok ftleas fjgk gqvk gwaW mudk fooj.k fuEuor gS%& fooj.k 'kwU; gSA”
“4. That in may knowledge, no criminal case/matter, cognizable or non- cognizable, has even been registered against me, nor is any police investigation pending against me.
5. That I have never been arrested in any criminal matter (cognizable or non- cognizable) nor have I ever surrendered in the Court in any such criminal matter.
6. That the details or criminal matter registered against me, wherein I was challaned, and are under consideration of Court or police investigation are as follows-description is nil.
7. That the details of criminal matter filed against me in Court wherein I was convicted, acquitted/ discharged, are as follows- details are nil.
8. That I have never been released in any criminal matter u/s 169 Cr.P.C., or details of case, wherein I have been released, are as follows-details are nil.” (English translation by Court)
4. Subsequently, it came to notice of petitioners that a criminal case being Criminal Case No. 138 of 2000 under section 395 I.P.C. was registered at P.S. Dhannahar, District Mainpuri which ultimately resulted in submission of Charge Sheet No. 63 before Court concerned on 12.8.2001 under sections 147, 323, 504, 506 I.P.C. After receiving summons, petitioner sought bail from Trial Court and ultimately said criminal case resulted in conviction. Since claimant-respondent has not disclosed aforesaid case registered against him in the affidavit, a show cause notice was issued on 4.8.2007. Claimant-respondent submitted reply on 24.8.2007 stating therein that he has signed the affidavit without reading contents of the affidavit and proforma. Consequently on account of concealment of relevant facts in the affidavit, appointment of claimant-respondent was cancelled on 20.11.2007. Thereafter departmental appeal preferred by claimant-respondent was also rejected. Tribunal, however, has allowed claim petition on the ground that Department itself was under an obligation to verify facts as to whether any criminal case was pending or not and whether claimant-respondent is guilty of filing false affidavit and cancealment of relevant facts regarding pendency of criminal case.
5. Cancellation of appointment on suppression of material facts, specifically pertaining to pendency of criminal case is settled in a Division Bench judgement of this Court in case of Veer Pal Singh Vs. State of U.P. and others; 2015(3) AWC 2844 and it has been held that termination of appointment on the ground of suppression of material facts of criminal case and filing of false affidavit, is justified.
6. Recently this issue has been considered in Avtar Singh Vs. Union of India and others; 2016(4) ESC 580 (SC) and it has been held that if verification form is specific and is not vague, and still require to disclose, then cancellation of appointment is justified. Para 30 of the judgement is reproduced as under;
"30. 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:
(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.
(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.
(3) The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
(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: -
(a) 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.
(b) Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
(c) 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.
(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.
(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.
(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.
(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.
(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.
(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."
7. We find that the present case is fully covered with para 30(1)(2)(3) to (10) of the judgment of Avtar Singh (Supra) and in view thereof, judgement of the Tribunal cannot be sustained. The writ petition is allowed. The impugned judgement and order dated 11.5.2015 passed by State Public Service Tribunal is set aside.
Order Date :- 30.4.2018 Arvind