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2019 DIGILAW 1051 (JHR)

Sandeep Kumar v. Union of India

2019-05-14

ANANDA SEN

body2019
ORDER : Petitioner, in this writ application, has prayed for quashing the order dated 03.03.2016, by which the petitioner has been removed from service. 2. The petitioner was appointed as Constable in CISF 10.01.2013. The petitioner was sent for training and also completed his probation period. A letter was issued by the Assistant Commandant to the DIG, CISF Unit, BCCL informing that the petitioner earlier was involved in a criminal case, though he has been acquitted from all the charges, yet his case has been taken up by the Screening Committee. Some information was required for consideration. The petitioner was served with a letter dated 3rd December, 2013 by which the information were sought for from the petitioner. The petitioner submitted all the relevant documents. The petitioner submitted that there was a land dispute between the family of the petitioner and others, as a result, prior to joining in service, a case was instituted in which the petitioner was never taken into custody also. He submitted that he was ultimately acquitted vide judgment dated 21.12.2010. Without giving any opportunity to the petitioner, services of the petitioner was terminated vide letter dated 07.05.2014. As the order of termination was bad and was in utter violation of principles of natural justice, the petitioner moved this Court in W.P.(S) No.2779 of 2014. This Court was pleased to set aside the order of termination and remitted the matter for fresh decision before the authorities with an observation that principles of natural justice must be followed. Pursuant to the aforesaid order, petitioner was reinstated vide order dated 12.01.2016 on the same post. Thereafter, a notice was issued to the petitioner on 30.01.2016, directing him to file a reply to the show cause as to why not his services be terminated. In the show cause notice, it has been mentioned that the petitioner in the attestation form at the time of enrolment in the CISF had declared “NO” against the question “Have you ever been prosecuted?” Thus, the petitioner suppressed material facts, when it was well within the knowledge that the petitioner was prosecuted. Thereafter, vide order dated 3rd March, 2016, on the ground of suppression of factual information and on the ground of furnishing false information, this petitioner was dismissed from service. The aforesaid order is under challenge before this Court. 3. The respondents filed a counter affidavit. Thereafter, vide order dated 3rd March, 2016, on the ground of suppression of factual information and on the ground of furnishing false information, this petitioner was dismissed from service. The aforesaid order is under challenge before this Court. 3. The respondents filed a counter affidavit. They stated that admittedly, the petitioner had suppressed the fact that he was prosecuted. They brought on record the guidelines and submitted that a candidate is required to declare as to whether he has been arrested, prosecuted or convicted. If the candidate does not disclose the correct fact, then his candidature and appointment can be cancelled. It has been mentioned that the screening committee took a decision and decided that the petitioner is not fit to be kept in service because of suppression of fact. 4. I have heard the counsel for the parties and gone through the records. The facts are admitted in this case. 5. Prior to appointment, the petitioner was prosecuted in a criminal case. He was acquitted as the charges could not be proved by the prosecution. His acquittal was clean. It is also admitted that in the attestation form, the petitioner had to disclose about the fact whether at any point of time, he was prosecuted or not ? It is admitted that inspite of being prosecuted, the petitioner had suppressed the aforesaid information and had written “NO” against the said column. This is a suppression of fact. The Screening Committee has taken a conscious decision that the petitioner is not fit to be retained in service. The Hon’ble Supreme Court, in the case of Commissioner of Police versus Mehar Singh reported in (2013) 7 SCC 685 while deciding a case of similar nature, where Screening Committee of Delhi Police had recommended removal, has held that decision of the Screening Committee must be taken as final unless it is malafide. It has also held that the importance and efficacy of the mechanism of the Screening Committee should not be diluted. Thus, from the aforesaid observation of the Hon’ble Supreme Court, it is clear that only in case of malafide, the decision of the Screening Committee can be questioned. This is not the case here. There is no allegation of malafide. The said decision is based on reasons. Thus, from the aforesaid observation of the Hon’ble Supreme Court, it is clear that only in case of malafide, the decision of the Screening Committee can be questioned. This is not the case here. There is no allegation of malafide. The said decision is based on reasons. The Hon’ble Supreme Court in the case of Avatar Singh versus Union of India reported in (2016) 8 SCC 471 has held that the policy decision of verification of character and antecedent is for the purpose whether the person is suitable for the post in question and is fit to be appointed. The candidate should give correct information and there should be no suppression or false mention of required information. Once the verification form requires certain information to be furnished, the delinquent is duty bound to furnish it correctly and any suppression of material facts or submitting wrong information may by itself lead to termination of service or cancelling candidature. While holding so, the Hon’ble Supreme Court has given discretion to the employer in paragraph 38.1 to 38.4.1. It is necessary to quote the aforesaid paragraphs, which read as under: - 38.1 Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of 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. 6. 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. 6. Though in the aforesaid paragraphs, Supreme Court has held that there should be no suppression, but, in paragraph 38.4, the Hon’ble Supreme Court has held that if there is suppression or false information and conviction or acquittal had already been recorded before filling the application form, then in all the cases recourses mentioned in said paragraph 38.4 can be resorted to. Paragraph 38.4.1 provides that in case of trivial nature, even if conviction is recorded for any act, when the incumbent was of young age and also for petty offences, which if disclosed, would not have rendered an incumbent unfit for the post in question, the employer may, in his discretion, ignore such suppression of fact or false information by condoning the lapses. Thus, from the aforesaid judgment, I find that a discretion has been granted to the employer to decide whether in a case of suppression if the offence is trivial in nature, which would not affect appointment, even if disclosed, the employer can retain him in service. In this case, the petitioner has not been convicted, rather was acquitted in 2010, much before joining of service of the petitioner. There was a land dispute between the parties and land was in possession of both the parties, as claimed. While seeing the report of the Screening Committee, I find that the Screening Committee, merely found the petitioner not suitable for appointment. No reasons have been mentioned. Now, this Court feels that the case of the petitioner needs to be reconsidered by the Screening Committee, taking into consideration the direction of the Hon’ble Supreme Court in the case of Avtar Singh (supra), especially, paragraph 38.4.1. I, therefore, direct the respondents to place the case before the Screening Committee once again and direct the Screening Committee to decide the case of the petitioner taking into consideration the observations and directions of the Hon’ble Supreme Court in the aforesaid judgment and thereafter come to a decision whether the petitioner is fit to be retained in service or to be removed. 7. 7. With the aforesaid observations and directions, I set aside the order of termination and the decision of the Screening Committee, so far as it relates to the petitioner, with a direction to reconsider the case of the petitioner in terms of paragraph 38.4.1 of the judgment of the Hon’ble Supreme Court in the case of Avtar Singh (supra) and come to a conclusion whether suppression of the fact is fatal on the facts of the criminal case, which was instituted against the petitioner. 8. This application thus, stands allowed.