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2021 DIGILAW 2105 (RAJ)

Dinesh Choudhary v. Union of India

2021-11-11

MANINDRA MOHAN SHRIVASTAVA, VINOD KUMAR BHARWANI

body2021
ORDER 1. Heard. 2. This petition under Article 227 of the Constitution of India has been preferred against the order dated 27.09.2019 passed by the Central Administrative Tribunal, Jaipur Bench, Jaipur (hereinafter referred to as 'the Tribunal'), whereby, petitioner's original application challenging order of cancellation of appointment has been dismissed. 3. The petitioner was provided employment as Gateman under the Scheme of employment due to premature retirement of his father, who was in employment of the respondent authority. 4. At the time of appointment, the petitioner was made to give certain declarations and file an affidavit particularly with regard to verification of his character and the petitioner gave a solemn declaration regarding there being no criminal case against him. However, after some time, the employer received information that against the petitioner as many as three criminal cases were pending and all these facts were suppressed by him. This eventually led to cancellation of his appointment. 5. Aggrieved by the said order, an original application was filed before the Tribunal. The employer sought to justify the action mainly on the ground that the fact regarding pendency of three criminal cases was suppressed by the petitioner and he also gave false information on affidavit. 6. Before the Tribunal, the petitioner-employee, taking the benefit of subsequent event of he either acquitted or he being acquitted on technical ground or convicted for minor offences, came out with the stand that in these special circumstances, even though, he had suppressed pendency of criminal cases at the time of seeking employment, due to subsequent orders that were passed in various criminal cases, the action of cancellation of appointment be set aside and the petitioner be reinstated in service. 7. This, however, did not find favour with the Tribunal and the Tribunal, relying mainly on the principles laid down by the Hon'ble Supreme Court in the Case of Avtar Singh Vs. Union of India & Ors., (2016) 8 Supreme Court Cases 471 and taking into consideration that not one, but as many as three criminal cases were pending on the date, the petitioner sought employment on the basis of false affidavit, upheld the termination order and rejected the application. 8. Union of India & Ors., (2016) 8 Supreme Court Cases 471 and taking into consideration that not one, but as many as three criminal cases were pending on the date, the petitioner sought employment on the basis of false affidavit, upheld the termination order and rejected the application. 8. Learned counsel for the petitioner realising that he had a limited scope in the matter, fervently urged this Court to consider the aspect of the matter that though initially suppression was there and the facts regarding pendency of the criminal cases were concealed, subsequently, all the criminal cases have been bought to the end and those cases either have led to acquittal on the basis of compounding of offence or benefits of some other provisions and in one case, not involving the monetary loss and being trivial offence, admission of guilt leading to imposition of fine and not jail sentence. He would submit that even according to the verdict of Supreme Court in the case of Avtar Singh (Supra), there was scope of relief to be given by the employer in view of subsequent events. He would argue that the petitioner was granted employment under the Scheme of employment to one member of the family of a government servant or Railway servant who sought premature retirement. He also placed reliance upon the judgment of Hon'ble Supreme Court in the case of Commissioner of Police and Others Versus Sandeep Kumar, (2011) 4 Supreme Court Cases 644 and submitted that, that was also a case of conviction and suppression both, but the Supreme Court finding that it was not a heinous case, but trivial one, relief was granted in the form of reinstatement in service. 9. On the other hand, learned counsel for the respondent would submit that the order passed by the Tribunal does not warrant any interference because the Tribunal, while deciding the case, has applied correct principles of law and the order does not suffer from any patent illegality, perversity nor can be said to have caused miscarriage of justice so as to warrant interference by this Court. 10. He would further argue that present is the case where the petitioner submitted completely false affidavit and entered public employment by fraudulent practice of completely suppressing that not one, but as many as three criminal cases were pending against him. 10. He would further argue that present is the case where the petitioner submitted completely false affidavit and entered public employment by fraudulent practice of completely suppressing that not one, but as many as three criminal cases were pending against him. He would submit that in none of the cases, there has been any clean acquittal, but only on technical ground, the petitioner could some how get rid of the criminal cases. It is argued that in one of the cases, he has been convicted also. 11. Learned counsel for the respondent would submit that after the judgment of Hon'ble Supreme Court in the case of Avtar Singh (Supra), the decision in such cases, is required to be strictly in accordance with principles of law laid down by the Hon'ble Supreme Court which are binding on all the courts under Article 141 of the Constitution of India. 12. We have heard learned counsel for the parties and also considered the submissions made before us, we have also perused the record. 13. Indisputably, the petitioner, while seeking employment, had given a false affidavit. He suppressed the fact that against him as many as three criminal cases were pending. The documents which have been placed before us, giving details of criminal cases, would reveal that following criminal cases were pending against the petitioner when he entered the public employment by giving a false statement. S.No. Case No. Offences 1. 667/12 (548/08) 427 & 452 IPC 2. 227/2008 279, 337 & 338 IPC, 134/187 MV Act. 3. 115/2008 147, 323, 341 read with Section 149 IPC 14. The first case related to an incident entering the house of victim, misbehaving with his wife which resulted into institution of offence under Sections 427 and 452 IPC. Later on offence under Section 427 IPC was compounded. As far as offence under Section 452 IPC is concerned, the witnesses turned hostile. In that case, the petitioner was acquitted of charge under Section 452 IPC. 15. Offence under Section 427 IPC was compounded. 16. The other case related to an incident of accident which resulted into institution of offence under Sections 279, 337 and 338 IPC. The petitioner was held guilty, but given benefit of probation. 17. As far as the third case is concerned, the petitioner was convicted under Sections 323, 341 and 141 IPC, but was granted benefit of probation. 18. 16. The other case related to an incident of accident which resulted into institution of offence under Sections 279, 337 and 338 IPC. The petitioner was held guilty, but given benefit of probation. 17. As far as the third case is concerned, the petitioner was convicted under Sections 323, 341 and 141 IPC, but was granted benefit of probation. 18. It would thus, appear that except offence under Section 452 IPC, the other acquittals cannot be said to be honourable acquittal. Other cases are where the petitioner suffered conviction though granted benefit of probation. 19. Much emphasis has been led by the learned counsel for the petitioner that the offences are trivial in nature. We are not prepared to accept the submission. Many offences which are not compoundable, cannot be treated as trivial. Moreover, there are not one, but many cases. Even if, we keep aside imposition of fine upon pleading guilty for commission of offence under Section 377 & 378 IPC, there were other criminal charges against the petitioner. 20. It is, therefore, difficult for us to conclude that the petitioner, in any case, later on, got clean acquittal in all criminal cases. 21. If that be so, it is not acceptable that the order of termination of service which was passed on the basis of suppression of material facts regarding pendency of cases, should be interfered with by this Court. 22. Larger bench decision of the Hon'ble Supreme Court in the case of Avtar Singh (Supra) presently holds the field and various course of action which could be adopted in such cases, have been stated enumeratively by the Supreme Court in para 38 of its order which is reproduced here in below:- '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. 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. 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 from 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. In case when fact has been truthfully declared in character verification from 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. 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 filing 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. 23. In the first clause, Supreme Court has declared that 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. 24. The petitioner in the present case clearly gave a false statement and thoroughly misled the prospective employer. If we may say so, the petitioner acted fraudulently to secure public employment. There is nothing on record nor it is the case of the petitioner that he was not in the knowledge of the criminal cases. 25. Clause-7 of the aforesaid paragraph 38, is also relevant and is extracted as below:- '38.7. If we may say so, the petitioner acted fraudulently to secure public employment. There is nothing on record nor it is the case of the petitioner that he was not in the knowledge of the criminal cases. 25. Clause-7 of the aforesaid paragraph 38, is also relevant and is extracted as below:- '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.' 26. The principle which has been propounded in the aforesaid, is essentially of character of a person, who is seeking public employment. Where the beginning of the public employment is based on a fraud, the employer always have the liberty to terminate the relationship of master and servant in exercise of his discretion. 27. Present is not a case where the employer acted in manner which can be said to be suffering from patent arbitrariness or abuse of his discretionary power. 28. Abundance of material is available on record to take a decision against the petitioner to cancel his appointment upon disclouser of the criminal case which was in-fact pending on the date when the application was made and appointment was granted. 29. Reliance placed on the judgment of the Hon'ble Supreme Court in the case of Commissioner of Police and Others Versus Sandeep Kumar (supra) has to be rejected as the aforesaid decision was referred to by the Supreme Court in the case of Avtar Singh (Supra) and various principles were propounded. Therefore, while examining the legality and validity of an order of termination in such cases, this Court is required to examine with reference to the principles laid down by the Hon'ble Supreme Court in the case of Avtar Singh (Supra) and individual cases turning on their own facts may not govern disposal of the case. 30. Last but not the least, even recently, the Supreme Court in the case of The State of Madhya Pradesh & Ors. Versus Bundy (Civil Appeal No.3046/2019) decided on 14 March, 2019 had an occasion to revisit the principles earlier laid down in the case of Avtar Singh (Supra). 30. Last but not the least, even recently, the Supreme Court in the case of The State of Madhya Pradesh & Ors. Versus Bundy (Civil Appeal No.3046/2019) decided on 14 March, 2019 had an occasion to revisit the principles earlier laid down in the case of Avtar Singh (Supra). In that case, the prospective candidate, who appeared in the examination was facing criminal trial and though, later on, he was acquitted, on facts, it was found that it was not a case of clean acquittal. Applying the principles laid down in the case of Avtar Singh (Supra), the Supreme Court held that the decision taken by the screening committee to hold the prospective candidate unsuitable for employment, could not have been faulted by the Court. 31. Learned Tribunal has extensively considered the case of the petitioner, particularly in the light of the principles laid down by the Supreme Court in the case of Avtar Singh (Supra), the view taken by the Tribunal cannot be said to be suffering any perversity or patent legality, much less error of jurisdiction. 32. In the result, we find ourselves unable to interfere with the order of the Tribunal. The petition, therefore, is liable to be dismissed and is accordingly dismissed.