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2016 DIGILAW 980 (CAL)

Mariappan v. Union of India

2016-12-07

C.S.KARNAN, DIPANKAR DATTA

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JUDGMENT : 1. Dismissal of OA NO.71/AN/2013 by the Central Administrative Tribunal, Calcutta Bench by its judgment and order dated 28th December, 2015, is under challenge in this writ petition presented by the petitioner on 22nd August, 2016. 2. The petitioner was an aspirant for appointment on the post of Constable (Driver) in the Andaman and Nicobar Police. An application format lad been filled up by the petitioner on 26th October, 2012. The format required him to answer several questions. He had answered 'no' to question No.12. Question No.12 read as follows:- 12 Have you ever been arrested or tried in the Court of law for any offence or convicted or fined by a Court of filled any Bond asked by the Court at the time of submitting this application form or is any case pending in a Court of law? If so, give details Nondisclosure will entail legal action. 3. However, subsequently, an attestation form was filled up by the petitioner on 18th December, 2012. This form also contained several questions required to be answered by the petitioner. A warning appeared at the top of such form to the following effect : 'Warning' • The furnishing of false information or suppression of any factual information in the Attestation Form would be a disqualification, and is likely to render the candidate unfit for employment under the Government. • If detained, convicted, debarred etc. subsequent to the completion and submission of this form, the details should be communicated immediately to the Union Public Service Commission or the authority to whom the attestation form has been sent earlier as the case may be failing which it will be deemed to be as suppression of factual information. • If the fact that false information has been furnished or that there has been suppression of any factual information in the attestation form comes to notice at any time during the service of a person, his service would be liable to be terminated.' 4. Question No.12 of the attestation form required the petitioner to disclose information as follows:- 12.(i) (a) Have you ever been arrested? Yes/No (b) Have you ever been prosecuted? Yes/No (c) Have you ever been kept under detention? Yes/No (d) Have you ever been bond down? Yes/No (e) have you ever been fined by a Court of Law? Yes/No (f) Have you ever been-convicted by a Court of Law for any offence? Yes/No (b) Have you ever been prosecuted? Yes/No (c) Have you ever been kept under detention? Yes/No (d) Have you ever been bond down? Yes/No (e) have you ever been fined by a Court of Law? Yes/No (f) Have you ever been-convicted by a Court of Law for any offence? Yes/No (g) Have you ever been debarred from any examination or rusticated by any University or another educational authority/ Institution? Yes/No (h) Have you ever been debarred/disqualified by any Public Service Commission for any of its examination /selection? Yes/No (i) Is any case pending against you in any Court of Law at the time of filling up this attestation form? Yes/No (j) Is any case pending against you in any University or other educational authority/institution at the time of filling up this attestation form? Yes/No (ii) If the answer to any of the above mentioned question is (Yes) give full particulars of the case/arrest detention/ fine/ conviction/sentence/punishment etc. and/or the nature of the case pending in the Court/university/ educational authority etc. at the time of filling up this form. Note: (i) Please also see the 'Warning' at the top of this attestation form. (ii) Specific answer to each of the questions should be given by striking out (Yes' or 'No' as the case may be. (iii) Are you indebted to any banking establishment/Private firm/ co-operative societies/individuals and if so to extend? Yes/ No 5. While answering the different questions that were posed, the petitioner had ticked 'yes' in respect of (a), (g) and (i) and 'no' in respect of the others. The petitioner, therefore, had disclosed that he had been arrested and a case was pending against him in a Court of law at the time of filling up of such attestation form. 6. On the ground that he had suppressed material information in the application format dated 26th October, 2012, the petitioner was disqualified. Such disqualification was the subject matter of challenge in the original application before the Tribunal which, as noticed above, failed. 7. Ms. Nag, learned Advocate for the petitioner contends that the disclosures made by the petitioner in the attestation form were sufficient to warrant a finding by the Tribunal that the petitioner did not suppress any material information. Such disqualification was the subject matter of challenge in the original application before the Tribunal which, as noticed above, failed. 7. Ms. Nag, learned Advocate for the petitioner contends that the disclosures made by the petitioner in the attestation form were sufficient to warrant a finding by the Tribunal that the petitioner did not suppress any material information. Relying on the decision of the Supreme Court reported in (1999) 1 SCC 246 (Commissioner of Police, Delhi v. Dhawal Singh), she urges that the decision of the Tribunal ought to be reversed and the respondents be directed to consider the candidature of the petitioner. 8. Per contra, Mr. Mandal, learned Govt. Pleader appearing for the respondents contends that the order of the Tribunal impugned herein does not merit interference. According to him, the petitioner aspired for recruitment in a disciplined force and it was all the more necessary that he approached with clean hands by disclosing the factum of his arrest and pendency of criminal case in the application format too. He further contends that the petitioner with an evil motive did not disclose the same in the application format, but subsequently did so to avoid disqualification. The Police Manual was placed for stressing the need of an aspiring member of the police force to have good character and antecedents. Relying on the decision of the Supreme Court reported in (2015) 2 SCC 591 (State of MP v. Parvez Khan) and (2013) 9 SCC 363 (Devendra Kumar v. State of Uttaranchal], he asserts that the petitioner is not entitled to any relief in exercise of equitable jurisdiction of the Writ Court. 9. We have heard Ms. Nag and Mr. Mandal and considered the judgment and order impugned with the care and attention the same deserves. 10. We are of the firm view that a proper decision on this writ petition would require meticulous consideration of the law laid down by the Supreme Court in a decision of recent origin reported in (2016) 8 SCC 471 (Avtar Singh v. The Union of India and others). 10. We are of the firm view that a proper decision on this writ petition would require meticulous consideration of the law laid down by the Supreme Court in a decision of recent origin reported in (2016) 8 SCC 471 (Avtar Singh v. The Union of India and others). The said decision was rendered by a Bench of the Supreme Court comprising three Hon'ble Judges on a reference to resolve the conflict of opinion in various decisions of Division Benches of two Hon'ble Judges, as noticed in the decision reported in (2012) 8 SCC 748 (Jainender Singh v. State of U.P.) After a survey of all the decisions on the point, either for or against action taken in view of perceived suppression/non-disclosure of involvement in criminal cases in applications seeking appointment/attestation forms/verification forms, the Supreme Court had the occasion, to lay down the law as follows:- '29. The verification of antecedents is necessary to find out fitness of incumbent, in the process if a declarant is found to be of good moral character on due verification of antecedents, merely by suppression of involvement in trivial offence which was not pending on date of filling attestation form, whether he may be deprived of employment? There may be case of involving moral turpitude/serious offence in which employee has been acquitted but due to technical reasons or giving benefit of doubt. There may be situation when person has been convicted of an offence before filling verification form or case is pending and information regarding it has been suppressed, whether employer should wait till outcome of pending criminal case to take a decision or in case when action has been initiated there is already conclusion of criminal case resulting in conviction/acquittal as the case may be. The situation may arise for consideration of various aspects in a case where disclosure has been made truthfully of required information, then also authority is required to consider and verify fitness for appointment. Similarly in case of suppression also, if in the process of verification of information, certain information comes to notice then also employer is required to take a decision considering various aspects before holding incumbent as unfit. Similarly in case of suppression also, if in the process of verification of information, certain information comes to notice then also employer is required to take a decision considering various aspects before holding incumbent as unfit. If on verification of antecedents a person is found fit at the same time authority has to consider effect of suppression of a fact that he was tried for trivial offence which does not render him unfit, what importance to be attached to such non-disclosure. Can there be single yardstick to deal with all kinds of cases? 30. The employer is given 'discretion' to terminate or otherwise to condone the omission. Even otherwise, once employer has the power to take a decision when at the time of filling verification form declarant has already been convicted/acquitted, in such a case, it becomes obvious that all the facts and attending circumstances, including impact of suppression or false information are taken into consideration while adjudging suitability of an incumbent for services in question. In case the employer comes to the conclusion that suppression is immaterial and even if facts would have been disclosed it would not have adversely affected fitness of an incumbent, for reasons to be recorded, it has power to condone the lapse. However, while doing so employer has to act prudently on due consideration of nature of post and duties to be rendered. For higher officials/higher posts, standard has to be very high and even slightest false information or suppression may by itself render a person unsuitable for the post. However, same standard cannot be applied to each and every post. In concluded criminal cases, it has to be seen what has been suppressed is material fact and would have rendered an incumbent unfit for appointment. An employer would be justified in not appointing or if appointed, to terminate services of such incumbent on due consideration of various aspects. Even if disclosure has been made truthfully, the employer has the right to consider fitness and while doing so effect of conviction and background facts of case, nature of offence, etc. have to be considered. Even if acquittal has been made, employer may consider nature of offence, whether acquittal is honourable or giving benefit of doubt on technical reasons and decline to appoint a person who is unfit or of dubious character. have to be considered. Even if acquittal has been made, employer may consider nature of offence, whether acquittal is honourable or giving benefit of doubt on technical reasons and decline to appoint a person who is unfit or of dubious character. In case employer comes to conclusion that conviction or ground of acquittal in criminal case would not affect the fitness for employment, incumbent may be appointed or continued in service. 31. Coming to the question whether an employee on probation can be discharged/refused appointment though he has been acquitted of the charge(s), if his case was not pending when form was filled, in such matters, employer is bound to consider grounds of acquittal and various other aspects, overall conduct of employee including the accusations which have been levelled. If on verification, the antecedents are otherwise also not found good, and in number of cases incumbent is involved then notwithstanding acquittals in a case/ cases, it would be open to the employer to form opinion as to fitness on the basis of material on record. In case offence is petty in nature and committed at young age, such as stealing a bread, shouting of slogans or is such which does not involve moral turpitude, cheating, misappropriation, etc. or otherwise not a serious or heinous offence and accused has been acquitted in such a case when verification form is filled, employer may ignore lapse of suppression or submitting false information in appropriate cases on due consideration of various aspects. 32. No doubt about it that once verification form requires certain information to be furnished, declarant is duty-bound to furnish it correctly and any suppression of material facts or submitting false information, may by itself lead to termination of his services or cancellation of candidature in an appropriate case. However, in a criminal case incumbent has not been acquitted and case is pending trial, employer may well be justified in not appointing such an incumbent or in terminating the services as conviction ultimately may render him unsuitable for job and employer is not supposed to wait till outcome of criminal case. In such a case non-disclosure or submitting false information would assume significance and that by itself may be ground for employer to cancel candidature or to terminate services. 34. In such a case non-disclosure or submitting false information would assume significance and that by itself may be ground for employer to cancel candidature or to terminate services. 34. No doubt about it that verification of character and antecedents is one of the important criteria to assess suitability and it is open to employer to adjudge antecedents of the incumbent, but ultimate action should be based upon objective criteria on due consideration of all relevant aspects. 35. Suppression of 'material' information presupposes that what is suppressed that 'matters' not every technical or trivial matter. The employer has to act on due consideration of rules/instructions, if any, in exercise of powers in order to cancel candidature or for terminating the services of employee. Though a person who has suppressed the material information cannot claim unfettered right for appointment or continuity in service but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity having due regard to facts of cases. 36. What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by authorities concerned considering post/nature of duties/services and power has to be exercised on due consideration of various aspects. 37. The 'McCarthyism' is antithesis to constitutional goal, chance of reformation has to be afforded to young offenders in suitable cases, interplay of reformative theory cannot be ruled out in to nor can be generally applied but is one of the factors to be taken into consideration while exercising the power for cancelling candidature or discharging an employee from service. 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. 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 re-courses 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. 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.' 11. It would appear on reading of the aforesaid extract that drastic action on the ground of suppression/non-disclosure of involvement in criminal case may not be a proper course to follow in each and every case. What has been emphasized by the Supreme Court is that the ultimate action taken by the employer must be based upon objective criteria, duly considering all the relevant aspects, which would include consideration as to whether the offence committed is trivial or otherwise, and affording a chance of reformation to new offenders in suitable cases. What has been emphasized by the Supreme Court is that the ultimate action taken by the employer must be based upon objective criteria, duly considering all the relevant aspects, which would include consideration as to whether the offence committed is trivial or otherwise, and affording a chance of reformation to new offenders in suitable cases. It is, thus, clear that there can be no strait-jacket formula applicable in all like cases but each individual case must depend on its own peculiar facts and decision has to be taken as the circumstances might warrant. 12. Adverting attention to the facts of the present case, it is not in dispute that the petitioner is charge-sheeted accused in two cases for alleged commission of offence punishable under Sections 147/148/149/427, IPC and Sections 146/147/148/149/323, IPC. It is clear as crystal that while in the application format dated 26th October, 2012 the petitioner asserted that he was not involved in any criminal case, in the attestation form dated 18th December, 2012 he admitted having been arrested and being the accused in a pending case before a Court of law at the time of filling up thereof. However, the particulars/details of the case/arrest were not disclosed against question no, 12(ii). 13. Although Mr. Mandal has contended that the petitioner motivatedly did not disclose his involvement in the criminal case while filling up the application format on 26th October, 2012 and this is sufficient reason for the respondents to disqualify him, sight cannot be lost of the fact that in the attestation form filled up on 18th December, 2012, the petitioner did, in last, disclose that he had been arrested and that a case before a competent Court of law was pending against him. 14. From the aforesaid narrative of facts, it would appear that although lithe first instance there was no disclosure of arrest and pendency of criminal case in the application format, wise counsel may have prevailed upon the petitioner in view of the strict warning that appeared at the top of the attestation form resulting in the petitioner subsequently disclosing information of his arrest and pendency of criminal case in the attestation form. It is, thus, not a case of complete suppression of material information. 15. In such a case, to brand the petitioner as one who sought to heat the Administration and intended to obtain public employment by deceit is too harsh. It is, thus, not a case of complete suppression of material information. 15. In such a case, to brand the petitioner as one who sought to heat the Administration and intended to obtain public employment by deceit is too harsh. We are of the considered view that the petitioner's candidature it recruitment ought to be reconsidered, having regard to the decision in Avtar Singh (supra), 16. In the result, the order disqualifying the petitioner is not set aside. However, the competent authority shall take a proper decision in the light of the decision in Avtar Singh (supra) as to whether the petitioner deserves to be considered for recruitment or not. Let such consideration be effected thin a month from date of receipt of a copy of this order. 17. In case the competent authority is of the view that the petitioner's conduct disentitles him of a favourable consideration, the order of disqualification shall be maintained but reasons, howsoever brief, shall be assigned in support of the conclusion, and it must be communicated to the Petitioner immediately thereafter. 18. Should the competent authority form an opinion that the petitioner could be considered for recruitment subject to the outcome of the pending criminal cases and provided he is otherwise within the zone of consideration, such authority shall be at liberty to revoke the order of disqualification and process the petitioner's claim for recruitment in accordance with law and even appoint him subject to the result of the criminal cases. 19. We hasten to record that the Tribunal did not have the benefit of considering the decision in Avtar Singh (supra) while dismissing the petitioner's original application because such decision was rendered at a time the Tribunal was no longer in seisin of the petitioner's claim. Although the view taken by the Tribunal may not have warranted interference on the basis of the materials placed and decisions cited before it, the aforesaid direction for consideration has been issued by us bearing in mind the subsequent decision in Avtar Singh (supra) which, indeed, has provided a small Window for consideration of cases where the alleged offence is trivial and a not too strict view upon objective consideration of all relevant factors obtaining in a particular case may be warranted. 20. The judgment and order under challenge is accordingly modified and the writ petition stands allowed to the extent mentioned above. 20. The judgment and order under challenge is accordingly modified and the writ petition stands allowed to the extent mentioned above. Parties shall, however, bear their own costs. Writ Petition is allowed.