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2017 DIGILAW 287 (RAJ)

Iktisar Ali S/o Abdul Hameed v. Union of India

2017-01-24

PUSHPENDRA SINGH BHATI

body2017
JUDGMENT : Dr. Pushpendra Singh Bhati, J. 1. The petitioner has preferred this writ petition making the following prayers :- “It is, therefore, most humbly prayed that your lordship my kindly be pleased to accept this writ petition and further be pleased to quash and set aside the orders dated 18.5.98 (Annexure-2) passed by the Commondant, 19.8.98 (Annexure-3) passed by the Deputy Inspector General of Police and dated 11.5.99 (Annexure-4) passed by the Inspector General of Police, CRPF and may pass an appropriate order in the facts and circumstances of the case. Any other relief which deem proper and fit may kindly also be given to the petitioner.” 2. The facts as noticed by this court in this writ petition are that the case was filed against the petitioner under Section 323, 341 and 147 of IPC on 13.10.1994. On 1.5.1995, the petitioner was acquitted in the offences under Section 323 and Section 341 of IPC on account of a compromise between the parties. However, vide order dated 1.5.1995, the petitioner was convicted under Section 147 of IPC on account of voluntary admission by the petitioner but the learned court gave him the benefit of probation under the probation of Offenders Act, 1958. 3. The petitioner was thereafter appointed as a constable in the respondents department on 4.9.1995. The petitioner was served a charge-sheet on 17.1.1998 with allegation of committing an act of misconduct under Section 11(1) of CRPF Act of 1949. The allegation was that the petitioner had suppressed and concealed the fact about his involvement in a criminal case for offence under Section 147 IPC at the time of joining the services. The respondents imposed a penalty of dismissal on 18.5.1998 after conducting the proceedings in accordance with law. The petitioner preferred an appeal which was also rejected on 18.9.1998 and thereafter, a revision petition which was also rejected vide order dated 11.5.1999. The respondents filed a detailed reply and stated that the suppression/concealment was a serious issue and thus the petitioner has been rightly dismissed from service. The respondent also stated that all proceedings had been held strictly in accordance with law. 4. The respondents filed a detailed reply and stated that the suppression/concealment was a serious issue and thus the petitioner has been rightly dismissed from service. The respondent also stated that all proceedings had been held strictly in accordance with law. 4. The point of consideration before this court is that the conviction on 1.5.1995 under Section 147 of IPC along with the benefit of the probation would ordinarily have resulted into appointment granted to the petitioner on 4.9.1995, whether the suppression/concealment of the fact which would not have held the petitioner to have gained employment or disclosing the same would have deprived the petitioner from the employment was sufficient to terminate the services of the petitioner. 5. The counsel for the petitioner has drawn attention of the court upon judgment passed :- “In the case of Avtar Singh v. Union of India and Ors. (Special Leave Petition in [C] No.20525 of 2011 decided on 21.07.2016 particularly para 30 whereof, where it has been held 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. (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. (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. “Counsel for the parties have also admitted that a similar view taken by this Court in the case of Kamal Singh Meena v. Union of India and Ors., 2016(3) WLC (Raj.) 687, has also to be considered, therein it was held in paras 15, 16 and 17 as under :- 15. This Court has comprehensively dealt with the issue of denial of public employment on the ground of pendency of criminal cases, more so where a selected candidate has been acquitted in a criminal case even subsequent to his selection. Reference can be made to the Judgment in the case of Rai Sahab v. State of Rajasthan and Anr. [2013 (3) WLC (Raj.) 483]. Reference can be made to the Judgment in the case of Rai Sahab v. State of Rajasthan and Anr. [2013 (3) WLC (Raj.) 483]. Therein considering various Judgments of the Apex Court and this Court it was observed that in the present era of rampant unemployment depriving an individual from the valuable right of employment on unsubstantial grounds would be unjust and a welfare state as a model employer ought not to be allowed to circumvent the rights of a selected candidate by quibbling about aspects which do not go to the root of the matter-unless there has been an egregious attempt at fraud and/or misrepresentation to obtain public employment and unless the lacunae found was ex-facie destructive of the suitability of a candidate. This is not so in the present case. 16. The caution set out in the Attestation Form stated that the furnishing of false information or suppression of any factual information in the Attestation Form would be a disqualification likely (emphasis mine) to render the candidate unfit for employment under the Government. The Cambridge Advanced Learner’s Dictionary 3rd Edition defines the work “likely” to mean “probable : possible”. The work “likely” is thus to be understood contra distinguished from the word “definitively” and “inevitably”. The appointing authority thus had a discretion. Incorrect information as in the instant case quite trivial in nature in the context of the fact that no material misstatement (affecting suitability employ ability) had been made by the petitioner in his Attestation Form, was a matter which ought to have engaged the active attention of the Appointing Authority. The Appointing Authority could not without evaluation of the effect of, the nature of allegations, gravity of offences and the petitioner’s acquittal about three year prior to the commencement of the recruitment process of Constable have mechanically concluded as it did, that the petitioner was unfit for employment. I am of the considered view that the Appointing Authority was under a duty of fairness and reasonableness as mandated by Article 14 of the Constitution of India to take an overall view of the matter and the possibility of the petitioner, being from a rural background, to mistake an acquittal as non-prosecution-legality apart a layman can reach this potential conclusion. This has not been done in the instant case and the impugned order dated 19.06.2015 discharging the petitioner has been passed as if out of a slot machine where discharge in the facts of the case was the only inevitable consequence and not a possible consequence of a minor misstatement of fact. I am of the considered view that the judgments relied upon by the counsel for the respondents-Railways turned on their own facts and cannot be construed to mean that even suppression of a piece of information quite irrelevant to the evaluation of the character and antecedents of a candidate must necessarily entail his disqualification and render him unfit for employment under the government. 17. The above conclusion is buttressed by the fact that the petitioner had nothing to gain from suppressing the factum of his having been prosecuted in a criminal case in which he had been acquitted. The disclosure of the factum of involvement in a criminal case in which the petitioner was acquitted could not even by any stretch of imagination have entailed his being found unsuitable for government service in view of reasons analogous to Section 12 of the Act of 1958. If a conviction for all offence not grave in nature and following probation cannot entail a disability in law, how can acquittal entail one ? I am of the view that a suppression of fact can entail finding of unsuitability of a candidate in government service on that count only in the event the suppression was beneficial. This leads to the conclusion that an irrelevant misstatement of fact as in the instant case, cannot result in the declaration of an applicant as unsuitable for government service.” 6. This court is of the opinion that the conviction of the petitioner under Section 147 of IPC on 1.5.1995 with the benefit of probation under the probation of Offenders Act, 1958 would not have itself dis entitled the petitioner for the appointment so given on 4.9.1995. This court is of the opinion that the conviction of the petitioner under Section 147 of IPC on 1.5.1995 with the benefit of probation under the probation of Offenders Act, 1958 would not have itself dis entitled the petitioner for the appointment so given on 4.9.1995. Thus as per the conclusion of the precedent law as well as in the opinion of this court, the suppression/concealment of a criminal case, the decision had already been reached before filling of the application/verification form and such fact later comes to the knowledge of the employer and the disclosure would not have rendered the incumbent unfit for the post in question will not render the person unfit for the post in future. Consequently the writ petition is allowed, the impugned orders are set aside. The petitioner is directed to file representation before the respondents for reconsideration of his case in context of the judgment of the Apex Court in the case of Avatar Singh (Supra) and the case of Kamal Singh Meena (Supra). The Appointing Authority is directed to dispose of the representation filed by the petitioner by making a reasoned and speaking order with reference to the judgment of the Apex Court in the case of Avatar Singh and this court in the case of Kamal Singh Meena (Supra) within a period of 3 months from receiving the certified copy of this judgment. The petitioner shall be at liberty to approach this court, if so requires. 7. The writ petition is accordingly allowed.