Court No. - 34
Case :- WRIT - A No. - 28432 of 2014 Petitioner :- State Of U.P. And 5 Others Respondent :- State Public Service Tribunal, U.P. And Another Counsel for Petitioner :- V.K. Chandel Counsel for Respondent :- S.C.,Narendra Singh,Vijay Gautam
Hon'ble Sudhir Agarwal,J. Hon'ble Ifaqat Ali Khan,J.
1. Heard counsel for petitioner and Sri Narendra Singh, counsel for claimant-respondents.
2. This Writ petition under Article 226 of the Constitution has been filed challenging judgment and order dated 24.09.2013 passed by State Public Service Tribunal, Lucknow (hereinafter referred to as “Tribunal”) allowing Claim Petition No. 531 of 2011 (Yaduvir Singh vs. State of U.P. and others) and setting aside order dated 23.08.2007, whereby appointment of claimant-respondent was cancelled on the post of Constable on the ground of filing of false affidavit.
3. Respondent-2, Yaduvir Singh, was selected and appointed on 26.08.2006 as Constable in P.A.C. At the time of recruitment, respondent- 2 filed an affidavit dated 24.08.2006 swearing that there was no criminal case pending against him, whereas, as a matter of fact, criminal cases were registered against him but he concealed this material fact. Subsequently it came to light that Criminal Case No. 30 of 2004, under Sections 323, 324, 325, 504 and 308 I.P.C. was registered against him in which charge-sheet was submitted on 2.12.2004. However, the said case was decided on 11.07.2005 wherein claimant-respondent was acquitted. Another Criminal Case No. 5A of 2005 under section 147, 148, 149, 323, 324, 504, 506 I.P.C., was registered but final report was submitted therein. Since aforesaid cases had been registered against respondent-2 before appointment, he had filed false affidavit.
4. Tribunal had quashed order dated 23.08.2007 on the ground that mere registration of criminal case would not dis-entitle claimant- respondent for being appointed as Constable. Other ground which appealed with Tribunal is that no opportunity of hearing was given to claimant-respondent before awarding punishment and there is a clear violation of principle of natural justice.
5. Both counsel for parties have relied on a three Judge's judgment of Supreme Court in Avtar Singh vs. Union of India & Ors. AIR 2016 Supreme Court 3598 wherein Larger Bench having considered entire authorities on the subject, in para 30 has said 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.
(11) Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."
6. In view of dictum laid down it is clear that before cancelling appointment of selected candidate for giving false information, employer has to take into consideration special circumstances of the case, if any, while giving such information. This aspect, it appears has not been adverted-to by petitioner's authorities in the instant case, while cancelling appointment.
7. So far as, show cause notice or opportunity of hearing being not provided to claimant-respondent is concerned, we find that no notice was given to claimant-respondent by Disciplinary Authority which rendered impugned order illegal and void. In the circumstances we are in agreement with the view taken by Tribunal that before cancellation of appointment claimant-respondent ought to have been heard and since he has not been given opportunity of hearing, petitioner authorities have acted in utter-violation of principle of natural justice. We do not find any error or otherwise illegality in the order of Tribunal.
8. Writ petition lacks merit and is accordingly dismissed.
9. However, it would be open to petitioner's authorities to pass a fresh order in accordance with law after affording due opportunity of hearing to claimant-respondent-2.
Order Date :- 31.5.2018 Swati