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2018 DIGILAW 817 (RAJ)

JASWANT SINGH MEENA v. UNION OF INDIA

2018-03-21

ASHOK KUMAR GAUR

body2018
JUDGMENT AND ORDER : Ashok Kumar Gaur, J. The present writ petition has been filed by the petitioner challenging the order dt.19.06.2015 whereby the Additional Chief Security Commissioner, NF Railway, Maligaon, Guwahati has discharged the petitioner from service by invoking Rule Nos.52.2 & 67.2 of the RPF Rules, 1987. It has been alleged in the impugned order that while receiving the information about the petitioner's character, the District Magistrate, Alwar informed that an FIR No.165/2013 for offences under Sections 341/323 IPC was registered against the petitioner at the Police Station Tatarpur, District Alwar and the case was under trial. 2. The impugned order further alleges that the petitioner suppressed this fact and did not mention in the attestation form submitted by him. The petitioner is said to have violated the provisions contained in para No.3 of the attestation form by suppressing the factual information. 3. The brief facts of the case are that the petitioner after his selection on the post of Constable, reported for his training pursuant to the Office Order issued by the respondents on 25.05.2015. The petitioner started undergoing the training and he came to be served with the impugned order dt.19.06.2015 discharging him from service. 4. The petitioner has pleaded in his writ petition that the allegation in the impugned order that he was involved in a criminal case, was not known to him. The petitioner has submitted that at the time of filling up the application form, he did not have any information regarding an FIR said to be registered against him on 14.12.2013 at the Police Station Tatarpur, District Alwar. The petitioner has submitted that when he inquired about the fact of registration of an FIR against him, it was revealed that the Police within seven days of lodging of the FIR submitted Final Report on 21.12.2013 and the said Final Report was accepted by the competent court on 13.03.2014. 5. The petitioner has pleaded that since he was not aware at all about the FIR being registered against him, he had no occasion, while filling up the application form, to furnish information in respect of the criminal case No.165/2013 registered against him for offence under Sections 341 & 323 IPC. 6. Learned counsel for the petitioner Mr.Ola has submitted that the impugned discharge order has been passed by the authorities in a mechanical manner without considering the entire facts. 6. Learned counsel for the petitioner Mr.Ola has submitted that the impugned discharge order has been passed by the authorities in a mechanical manner without considering the entire facts. Counsel submits that the character, antecedents & verification of the petitioner, as informed by the District Magistrate, Alwar, did not give the complete fact in respect of the criminal case and there was no criminal case pending or the petitioner was under trial, as was communicated by the District Magistrate, Alwar. Learned counsel for the petitioner has submitted that he has not violated any Rules of the RPF Rules, 1987 and in absence of any information about the criminal case being available with him, it could not be assumed by the disciplinary authority that the petitioner is guilty for violation of Rules Nos.52.2 & 67.2 of the RPF Rules, 1987. 7. Counsel for the petitioner further submitted that a similarly situated person namely Kamal Singh Meena was also discharged from service vide order dt.19.06.2015 by the same authority i.e. Additional Chief Security Commissioner, NF Railway, Maligaon, Guwahati & he approached this court in S.B.Civil Writ Petition No.10108/2015 challenging his dischrage order dt.19.06.2015. This court vide order dt.29.03.2016 while allowing the writ petition of the similarly situated person Kamal Singh Meena, directed the respondents to allow the said petitioner Kamal Singh Meena to join back in the training. Counsel submits that his case is identical to that of Kamal Singh Meena and this court has already declared the order of dismissal dt.19.06.2015 as illegal order. 8. Learned counsel has further submitted that the respondents have acted in most arbitrary manner and even the petitioner was not confronted with the intimation which they received from the District Magistrate, Alwar. Counsel submitted that had the information received by the employer, would have been put to the petitioner, he could have explained them that the Police after registration of the criminal case never called the petitioner, he was not made accused and ultimately Final Report, submitted by the Police, was accepted by the competent court. 9. Counsel submitted that the Apex Court in the case of Avtar Singh Vs. Union of India & Ors, (2016) 8 SCC 471 has decided the question of suppression of information or submitting false information in the verification form. 9. Counsel submitted that the Apex Court in the case of Avtar Singh Vs. Union of India & Ors, (2016) 8 SCC 471 has decided the question of suppression of information or submitting false information in the verification form. Counsel submits that the divergent views of the Apex Court was referred to the Larger Bench and the Larger Bench has laid down the following principles, in respect of the requirement of disclosing complete facts about criminal cases, which read as follows:- "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 concerned authorities 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 toto 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 aforesaid discussion, we summarize 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 aforesaid discussion, we summarize 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 recourse 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." 10. Per contra, Mr.P.C.Sharma, learned counsel for the respondents submits that the judgment passed by the coordinate Bench in S.B.Civil Writ Petition No.10108/2015 [Kamal Singh Meena Vs. Union of India & Ors.] has been challenged before the Division Bench in D.B.Special Appeal (Writ) No.990/2016 and the appeal has been admitted vide order dt.24.10.2016. 11. Counsel submits that the directions given by the court in the case of Kamal Singh Meena cannot be straightway applied in the present case and relief of directing the employer to re-join the candidate is not in accordance with the law laid down by the Apex Court in the case of Avtar Singh. 12. 11. Counsel submits that the directions given by the court in the case of Kamal Singh Meena cannot be straightway applied in the present case and relief of directing the employer to re-join the candidate is not in accordance with the law laid down by the Apex Court in the case of Avtar Singh. 12. Mr.P.C.Sharma, counsel for the respondents submitted that the petitioner has violated the Rule Nos.52.2 & 67.2 of the RPF Rules, 1987 and the instructions contained in para-3 of the attestation form by suppressing factual information and as such the petitioner has been found to be unfit for the public employment. 13. Mr.Sharma has submitted that the person like the petitioner who was named in the FIR was required to disclose complete facts with respect to his involvement in the criminal case and the subsequent development of Final Report, furnished by the Police, being accepted, cannot absolve the petitioner from disclosing the complete facts in the attestation form. 14. Mr.Sharma has further submitted that the case of the petitioner is not identical as compared to Kamal Singh Meena and as such the directions given by this court in the case of Kamal Singh Meena cannot be applied in toto. 15. Mr.Sharma has submitted that in the case of Kamal Singh Meena, the facts were with respect to compromise ultimately being entered into between the parties in respect of the offences committed under Section 341 & 323 IPC and for other offences, the said person was acquitted by the competent court and as such this court had passed the directions. 16. I have heard counsel for the parties and considered the record. 17. This court finds that the impugned order dt.19.06.2015 has been issued on the premise that the petitioner did not disclose the fact of registration of criminal case against him at the Police Station Tatarpur, District Alwar for offences under Sections 341 & 323 IPC. The narration of facts in the previous paras clearly disclose that the petitioner was named in the FIR, the Police did not take any action and on the contrary, within seven days Final Report was submitted by the Police on 21.12.2013 which was also accepted by the competent court vide order dt.13.03.2014. 18. The narration of facts in the previous paras clearly disclose that the petitioner was named in the FIR, the Police did not take any action and on the contrary, within seven days Final Report was submitted by the Police on 21.12.2013 which was also accepted by the competent court vide order dt.13.03.2014. 18. This court finds that the Apex Court in the case of Avtar Singh has given the guidelines to the employer where he has to deal with the employee who did not disclose the complete information in respect of his involvement in the criminal case or acquittal has already been recorded before filling up the application/verification form and such fact comes to the knowledge of the employer later on. 19. The Apex Court as per para 38.4.1 has held that in case the offence is trivial in nature and if same would have been disclosed, the incumbent would not have rendered unfit for the post in question, the employer, in his discretion, may ignore such suppression of fact or false information by condoning the lapse. This court finds that the petitioner's involvement in the criminal case registered under Sections 341 & 323 IPC would not have made him ineligible to seek public employment as per the law laid down by the Apex Court in the case of Avtar Singh. 20. This court further finds that the judgment passed by the coordinate Bench in S.B.Civil Writ Petition No.10108/2015 [Kamal Singh Meena Vs. Union of India & Ors.] dt.29.03.2016 was delivered before the judgment passed by the Apex Court in the case of Avtar Singh. The court further finds that the judgment passed in the case of Kamal Singh Meena is already a subject matter of challenge in D.B.Special Appeal (Writ) No.990/2016 and the Division Bench while hearing the special appeal against the judgment of Kamal Singh Meena, has passed the order dt.24.10.2016 wherein the Division Bench did not stay the operation & effect of the order passed by the learned Single Judge but made the reinstatement of the employee concerned subject to result of the appeal. The order dt.24.10.2016 passed by the Division Bench reads as under:- "Call for paper (51316/2016). Taking into consideration that the matter is pending before other Courts, this appeal is admitted. The order dt.24.10.2016 passed by the Division Bench reads as under:- "Call for paper (51316/2016). Taking into consideration that the matter is pending before other Courts, this appeal is admitted. Heard on the stay application, the order of the learned Single Judge is not stayed but it is made clear that the reinstatement of the respondent will be subject to result of this appeal. Now officer are not required to be remain present on the next date of hearing since the order is complied with which is taken on record. Stay application stand disposed off." 21. This court is of the considered opinion that the employer is now to be governed by the directions which have been passed by the Apex Court in the case of Avtar Singh and the petitioner's case is also required to be considered as per the parameters laid down by the Apex Court in the case of Avtar Singh. 22. This court finds that the impugned order dt.19.06.2015 is not sustainable in the eye of law and the same is quashed and set aside. The respondents are bound to follow the law laid down by the Apex Court in the case of Avtar Singh and the petitioner is permitted to file a comprehensive representation narrating all the facts with respect to the criminal case instituted against him and the respondents are expected to decide the same by a speaking and reasoned order. 23. Consequently, the instant writ petition is allowed and the impugned order dt.19.06.2015 is set aside. The petitioner is directed to be reinstated back in service. However, the respondents would be at liberty to decide the representation of the petitioner as per the guidelines issued by the Apex Court in the case of Avtar Singh. The necessary exercise may be undertaken within a period of five weeks.