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2016 DIGILAW 3832 (ALL)

RAJ KUMAR v. UNION OF INDIA

2016-11-29

VIVEK KUMAR BIRLA

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JUDGMENT Hon’ble Vivek Kumar Birla, J.—Heard Sri Vijay Gautam, learned counsel for the petitioner and Sri Vivek Singh, learned counsel for respondent Nos. 1 to 6. 2. The present writ petition has been filed with the following prayer: “a. Issue a writ, order or direction, in the nature of certiorari, for quashing the impugned order dated 31.3.2015, passed by respondent No. 4, enclosed as Annexure-1, to the writ petition. b. Issue a writ, order or direction, in the nature of mandamus, directing the respondent authorities to permit the petitioner to continue his training. c. Issue a writ, order or direction, in the nature of mandamus directing the respondent authorities to reinstate the services of the petitioner and pay salary alongwith all the consequential benefits. d. ...... e. ......” 3. The contention of the learned counsel for the petitioner is that the order dated 31.3.2015 by means of which the services of the petitioner has been discharged has been passed without any application of mind or without any appreciation of the facts and circumstances of the case. 4. vide order dated 8.10.2015 an elaborate interim order was passed in the present case which reads as follows: “The petitioner has been selected on the post of Constable (GD) in Railway Protection Force. At present he is under training, however by the order impugned dated 31st March, 2015 his selection has been cancelled on the ground that he has suppressed the fact that a Police Case No. 131/2003 under Sections 323, 504 and 536 IPC was instituted against him, which is in violation of the provisions contained in Para-3 of the “Attestation Form” as he did not mention the same in the attestation form. Learned Counsel for the petitioner has drawn the attention of the Court to paragraph-17 of the writ petition wherein it is stated that in the aforesaid criminal case the petitioner has been acquitted on 24th September, 2007. Learned Counsel for the petitioner has drawn the attention of the Court to the judgements of the Supreme Court in the case of Ram Kumar v. State of U.P. and others, 2011(4) ESC 634 (SC), and Commissioner of Police and others v. Sandeep Kumar, (2011) 4 SCC 644 . Learned Counsel for the petitioner has drawn the attention of the Court to the judgements of the Supreme Court in the case of Ram Kumar v. State of U.P. and others, 2011(4) ESC 634 (SC), and Commissioner of Police and others v. Sandeep Kumar, (2011) 4 SCC 644 . Learned Counsel for the respondents has opposed the matter and has placed reliance on the judgements in the case of Commissioner of Police, New Delhi and another v. Mehar Singh, (2013) 7 SCC 685 and Jainendra Singh v. State of U.P. and others, (2012) 8 SCC 748 . Matter needs consideration. Learned Counsel for the respondents may file counter-affidavit within six weeks. Rejoinder-affidavit, if any, may be filed within a week thereafter. List in the week commencing 30th November 2015. The petitioner be allowed to complete his training but no appointment letter shall be issued to him without the leave of this Court.” 5. The contention of the learned counsel for the petitioner is that the impugned order dated 31.3.2015 is a non-speaking order and it does not show as to whether the authority concerned has really applied its mind to the facts and circumstances. The order does not show as to whether the authority concerned has really gone into the nature of the information which has been suppressed or the ramification of the information so suppressed. 6. Learned counsel for the petitioner has informed the Court that in pursuance of the interim order passed in this case on 8.10.2015, the petitioner has already completed his training. 7. A reliance has also been placed upon the judgment of the Apex Court rendered in the case of Avtar Singh v. Union of India and others, 2016 (8) SCC 471 , wherein in paragraph No. 30 it has been held as follows: “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. 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. (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.” 8. In view of the aforesaid legal position which has not been disputed by the learned counsel for the respondents, the petition deserves to be allowed and the order dated 31.3.2015 passed by respondent No. 4 is liable to be quashed and the same is hereby quashed and liberty is given to the respondents to reconsider the matter and thereafter pass a fresh appropriate order after giving an opportunity of hearing to the petitioner within three months from the date of production of a certified copy of this order. 9. It is being made clear that the reconsideration by the authority concerned shall be done keeping in view the observations as made in the judgment rendered in the case of Avtar Singh (supra). 10. 9. It is being made clear that the reconsideration by the authority concerned shall be done keeping in view the observations as made in the judgment rendered in the case of Avtar Singh (supra). 10. The writ petition is, accordingly, disposed of.