Court No. - 6
Case :- WRIT - A No. - 12801 of 2016 Petitioner :- Suresh Kumar Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Vijay Gautam,Vinod Kumar Mishra Counsel for Respondent :- Vivek Singh,Rajnish Kumar Rai,Satish Kumar Rai,Sharad Ranjan Nigam,Sudhir Bharti
Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioner,Sri Pramod Kumar Pandey holding brief of Sri Sharad Ranjan Nigam and Sri Vijay Kumar Rai learned counsel for the respondents.
This petition challenges an order dated 29 July 2015 pursuant to which the selection of the petitioner has come to be cancelled on the allegation that he had failed to disclose pendency of police case No. 378 of 2013.
From a perusal of material brought on record in these proceedings, it is evident that the petitioner had in June 2014 specifically stated on affidavit that he had not been arrested or prosecuted, kept under detention, fined or convicted by any Court of law for any offence. In this affidavit it was further averred that no case was pending against him in any Court of law. In the criminal case it appears that the petitioner was finally acquitted by the Judicial Magistrate on 28 February 2014. The judgment of the criminal court stands appended at annexure-5 to the writ petition. From the above narration of facts,it is evident that there was no concealment of a material fact. The petitioner had already been acquitted in the criminal case prior to execution of the attestation form. The respondents do no allude to any other aspect of concealment or misstatement in the impugned order.
In situations like this, it is the following principles as enunciated by the Supreme Court in Avtar Singh Vs. Union of India and Others, 2016(8) SCC 471 which would apply:-
"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."
Bearing the aforesaid principles in mind, it is evident that the order impugned cannot be sustained and that the respondents must be commanded to reconsider the candidature of the petitioner afresh and in light of the observations made hereinabove.
Accordingly, this writ petition is allowed. The impugned order dated 29 July 2015 is hereby quashed. The matter shall in consequence stand remanded to the fourth respondent for deciding the claim of the petitioner afresh and in light of the observations made hereinabove.
Order Date :- 26.11.2018 faraz