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2019 DIGILAW 75 (CAL)

Sanjoy Halder v. State Of West Bengal

2019-01-16

DEBANGSU BASAK

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JUDGMENT : DEBANGSU BASAK, J. 1. A decision of the Kolkata Police dated March 16, 2011 permanently demobilising the petitioner from Home Guard Organisation, Kolkata with immediate effect is under challenge in the present writ petition. 2. Learned Advocate for the petitioner submits that, the impugned order was passed without any previous show-cause notice. The petitioner was not heard prior to issuance of the impugned order. The petitioner was involved in a criminal case from which, the petitioner was acquitted on January 17, 2011. The impugned order is subsequent to the judgment of the criminal Court dated January 17, 2011. He relies upon (Rafikul Islam v. Union of India, 2002 1 Cal LJ 541) and (Ram Kumar v. State of U.P. & Ors, (2011) 6 Supreme 23 ) and submits that, suppression of material fact in the application for appointment, will not visit such applicant with the penal consequence of discharge from service. It is for the appointing authority to verify the antecedents of the applicant. Failure to disclose information is not fatal in service jurisprudence. 3. Learned advocate for the State submits that, the petitioner was appointed in March, 2009. Prior to his appointment, the petitioner was arrested in a criminal case relating to charges under Section 493/ 376/ 323/ 307/ 506 of the Indian Penal Code on November 10, 2008 and was enlarged on bail on December 15, 2008. The criminal proceedings was within the knowledge of the petitioner. He did not inform the appointing authority about the pendency of such criminal proceedings prior to the petitioner obtaining the appointment. In such circumstances, the appointing authority is entitled to terminate the services of the petitioner on suppression of material facts. He relies upon (Jainendra Singh v. State of Uttar Pradesh & Ors., (2012) 8 SCC 748 ) and (Avtar Singh v. Union of India & Ors., (2016) 8 SCC 471 ) in support of his contention. 4. The petitioner was appointed as a Home Guard in March, 2009. The petitioner was an accused in a criminal case involving charges under Sections 493/ 376 of the Indian Penal Code. In such criminal proceedings, the petitioner was arrested on November 10, 2008 and was enlarged on bail on December 15, 2008. The criminal proceedings was within the knowledge of the petitioner when the petitioner applied for appointment as a Home Guard. In such criminal proceedings, the petitioner was arrested on November 10, 2008 and was enlarged on bail on December 15, 2008. The criminal proceedings was within the knowledge of the petitioner when the petitioner applied for appointment as a Home Guard. The petitioner did not bring to the notice of the appointing authority such material facts. The services of the petitioner stands terminated by the impugned order passed on March 16, 2011. 5. Ram Kumar (supra) is by a Single Judge of this Hon’ble Court. Ram Kumar (supra) was considered in Jainendra Singh (supra) by the Supreme Court. In Jainendra Singh (supra), the parameters laid down for consideration when an employee is found to have suppressed facts while obtaining an employment: “29. As noted by us, all the above decisions were rendered by a Division Bench of this Court consisting of two Judges and having bestowed our serious consideration to the issue, we consider that while dealing with such an issue, the Court will have to bear in mind the various cardinal principles before granting any relief to the aggrieved party, namely: 29.1. Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer. 29.2. Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if finds it not desirable to appoint a person to a disciplined force can it be said to be unwarranted. 29.3. When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry. 29.4. A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services. 29.5. 29.4. A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services. 29.5. The purpose of calling for information regarding involvement in any criminal case or detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have a clear bearing on the character and antecedents of the candidate in relation to his continuity in service. 29.6. The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service. 29.7. The standard expected of a person intended to serve in uninformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted. 29.8. An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, conviction or detention, even if ultimately he was acquitted of the said case, inasmuch as such a situation would make a person undesirable or unsuitable for the post. 29.9. An employee in the uninformed service presupposes a higher level of integrity as such a person is expected to uphold the law and on the contrary such a service born in deceit and subterfuge cannot be tolerated. 29.10. The authorities entrusted with the responsibility of appointing constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of constable.” 6. Jainendra Singh (supra) was considered by Avtar Singh (supra). Avtar Singh (supra) lays down parameters to be considered while dealing with a situation where, there is a suppression of material facts. It lays down as follows: “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 out conclusion our conclusion thus: 38.1. Avtar Singh (supra) lays down parameters to be considered while dealing with a situation where, there is a suppression of material facts. It lays down as follows: “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 out conclusion 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 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. 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. 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. 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.” 7. A person guilty of making suppression of a material fact at the time of obtaining appointment is open to be treated on the parameters laid down in Avtar Singh (supra). Avtar Singh (supra) allows the appointing authority to terminate the services of an employee found to have suppression of material facts or giving false information of involvement in a criminal proceeding. 8. On the touch-stone of principles laid down in Avtar Singh (supra), I find no material irregularity in the impugned order warranting an interference by the Writ Court. 9. Avtar Singh (supra) allows the appointing authority to terminate the services of an employee found to have suppression of material facts or giving false information of involvement in a criminal proceeding. 8. On the touch-stone of principles laid down in Avtar Singh (supra), I find no material irregularity in the impugned order warranting an interference by the Writ Court. 9. WP No. 27523 of 2012 is dismissed. No order as to costs. Urgent certified website copies of this judgment and order, if applied for, be made available to the parties upon compliance of the requisite formalities.