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2024 DIGILAW 645 (ALL)

Ashok Kumar v. State of U. P.

2024-02-29

PRAKASH PADIA

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JUDGMENT : Prakash Padia, J. 1. Heard Rishabh Kesarwani, learned counsel for the petitioner and Sri Chandan Kumar, learned standing counsel for the State-respondents. 2. By means of the instant petition, the petitioner assail the orders dated 16.11.2017, 25.5.2017 and 6.8.2006 passed by the respondent Nos. 3, 4 and 5 respectively which has been enclosed alongwith the petition as Annexures 1 to 3. The petitioner further prays for a writ in the nature of mandamus commanding the respondents to reinstate the services of the petitioner on the post of Constable. 3. It is admitted between the parties that the matter is absolutely identical to the judgment passed by the coordiante Bench of this Court in the case of Satendra Kumar Yadav, passed in Writ-A No. 2844 of 2018 on 31.1.2023. Hence, the petitioner is also entitled for the same relief. 4. The submission of the learned counsel for the petitioner is that the petitioner was recruited as a Constable in Group-C and was posted at Police Line Gorakhpur. On 18.6.2006, the respondent No. 5 terminated the services of the petitioner and cancelled his appointment without providing any notice or opportunity of hearing. The ground for terminating the services of the petitioner was that the petitioner was involved in a criminal case bearing Case Crime No. 637/2001, under Sections 363, 366IPC, registered at Police Station Khorabar, District Gorakhpur, which was not disclosed by the petitioner at the time of filing of an affidavit and this was nothing but concealment of fact. 5. The contention of the learned counsel for the petitioner is that the petitioner had applied for the selection on the post of Constable in the year 2005. After completing all the formalities, the petitioner was selected and appointed as a Constable in June, 2006. With the change in the political climate in the State, re-verification of the documents submitted by the recruit constables was made so also the Constables, who were selected and appointed between 2004 to 2006, who were again called for medical examination and verification of the documents. In the aforesaid backdrop the selection of the petitioner came to be cancelled on the ground that the petitioner had concealed that he was involved in the case bearing Case Crime No. 637/2001. 6. In the aforesaid backdrop the selection of the petitioner came to be cancelled on the ground that the petitioner had concealed that he was involved in the case bearing Case Crime No. 637/2001. 6. It has also urged that in view of the mass cancellation of selection, a number of writ petitions were filed before this Court and all of them came to be allowed by means of the judgment and order passed in the leading case of Pawan Kumar Singh and others v. State of U.P. and others, 2008 (10) ADJ 321 . It is further urged that special appeal against the said judgment was also dismissed and the judgment and order in the case of Pawan Kumar Singh (supra) was affirmed. Special Leave Petition before the Apex Court remained pending wherein on 25.2.2009, an order was passed that the selection which were made shall be provisional and would be subject to the decision of the SLP. Later, by means of the order dated 8.3.2013, the SLP of the State was also dismissed. 7. In the aforesaid backdrop, number of similarly situated persons filed writ petitions which were disposed of with a direction to the respondents-authorities to consider their case. The petitioner also moved a representation for his reinstatement on the basis of the decision taken by the State for re-appointing the persons. However, the said representation of the petitioner remained pending and no action was taken. 8. Since, the claim of the petitioner for reinstatement was not considered and he was terminated without assigning any reason as such he preferred a departmental appeal on 1.4.2017 under Rule 20 of the U.P. Police Officers of Subordinate Rank (Punishment and Appeal), Rules, 1991. It is urged that the appeal of the petitioner was also dismissed and thereafter the petitioner preferred a revision which also came to dismissed on 16.11.2017. It is in this context that the petitioner has assailed the three orders in the instant petition. 9. The thrust of the submission of the learned counsel for the petitioner is that the ground of dismissal is primarily that the petitioner did not disclose the criminal case bearing Case Crime No. 637/2001. It is in this context that the petitioner has assailed the three orders in the instant petition. 9. The thrust of the submission of the learned counsel for the petitioner is that the ground of dismissal is primarily that the petitioner did not disclose the criminal case bearing Case Crime No. 637/2001. It is urged that what has not been considered by the authorities is the fact that the petitioner had already been acquitted in the said case on 6.2.2006 by the order of Additional Session Judge/Fast Track Court No. 1, Gorakhpur and a copy of the acquittal order has also been brought on record as Annexure 10. It is thus, urged that once the petitioner already stood acquitted on 6.2.2006, there was no occasion for him to submit an affidavit to indicate regarding pendency of the said case as upon the acquittal insofar as the petitioner is concerned, the case had came to an end and there was no other proceeding arising therefrom. Thus had the petitioner concealed the fact that the proceedings were pending then the petitioner could have been questioned but prior to this appointment, the case had already been decided acquitting the petitioner. 10. It is further urged that upon these kind of anomalies, a number of petitions came to be filed, wherein this Court had taken a lenient view and the petitioner also relied upon a decision of this Court passed in Special Appeal Defective No. 541 of 2019 Babu Lal Meena v. The Union of India and others, decided on 2.1.2023, wherein the decision of the Apex Court in the case of Avtar Singh was relied upon while allowing the special appeal in favour of the candidates. 11. Learned standing counsel opposing the aforesaid submissions has urged that the affidavit filed by the petitioner clearly amounted to concealment as the petitioner had not disclosed regarding pendency of the criminal case bearing Case Crime No. 637/2001. 12. It will be relevant to notice that the services of the petitioner were terminated only on the ground that he concealed the pendency of the criminal case bearing Crime No. 637/2001. 13. What requires to be seen is that the date of birth of the petitioner is 1.5.1985. The case crime number for which the petitioner has been subjugated to his detriment is 637/2001. 13. What requires to be seen is that the date of birth of the petitioner is 1.5.1985. The case crime number for which the petitioner has been subjugated to his detriment is 637/2001. Apparently on the date when the said proceedings were initiated, the petitioner would have been a minor. 14. It is also to be noticed that in the aforesaid case, the petitioner was acquitted by means of the order dated 6.2.2006. It is in the aforesaid backdrop that it would have to be seen whether the petitioner could have been subjected to any disablement in public employment in respect of the alleged case which was instituted/lodged against the petitioner while he was a juvenile and ultimately was acquitted, prior to his appointment in 2006. 15. This aspect of the matter relating to rights of a juvenile has been considered by a Coordinate Bench of this Court in the case of Kishan Paswan v. Union of India and others, 2020 (11) ADJ 254 and the relevant portion read as under: “35. From the preceding legal narrative, the following position of law emerges: I. Juveniles and adults form separate classes. Criminal prosecution of an adult is a lawful basis for determination of suitability of a candidate for appointment to public office. However prosecution of juveniles is in a separate class. Using criminal prosecution faced by a candidate as a juvenile to form an opinion about his suitability for appointment, is arbitrary illegal and violative of Article 14 of the Constitution of India. II. The requirement to disclose details of criminal prosecutions faced as a juvenile is violative of the right to privacy and the right to reputation of a child guaranteed under Article 21 of the Constitution of India. It also denudes the child of the protection assured by the Juvenile Justice Act, 2000 (as amended from time to time). Hence the employer cannot ask any candidate to disclose details of criminal prosecution faced as a juvenile. III. The candidate can hold his silence or decline to give information about the criminal prosecution faced as a juvenile. Denial of such information by the candidate will not amount to a false declaration or a willful suppression of facts. IV. The conviction by a Juvenile Justice Board under the Juvenile Justice Act, 2000 of a juvenile is not a disqualification for employment. Denial of such information by the candidate will not amount to a false declaration or a willful suppression of facts. IV. The conviction by a Juvenile Justice Board under the Juvenile Justice Act, 2000 of a juvenile is not a disqualification for employment. As a sequitor prosecution faced as a juvenile is not a relevant fact for forming an opinion about the criminal antecedents and suitability of the candidate for appointment. Non disclosure of irrelevant facts is not “deliberate” or willful concealment of material facts. Hence non-disclosure of such criminal cases cannot invalidate the appointment of the said person. V. Clarification: These holdings shall not apply to cases beyond the ambit of Juvenile Justice Act, 2000 (as amended from time to time) and also in cases of heinous crimes committed by persons in the age group of 16 to 18 years. 36. The questions posed earlier are answered in terms of the preceding holdings. I find that the respondents authorities have acted in a manner contrary to law by requiring the petitioner to disclose criminal prosecution faced by him as a juvenile. The petitioner in defence of his fundamental rights lawfully denied the said information. Hence the petitioner did not deliberately or wilfully conceal any material facts, to secure his appointment. 37. Cancellation of the appointment of the petitioner on the foot of non disclosure of criminal prosecution faced as a juvenile vitiates the impugned order. The respondent No. 4 also acted in violation of law by attaching weight to the conviction of the petitioner in teeth of directions by the learned trial Court, and in violation of imperative provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000. 38. The impugned order dated 20.4.2020 is arbitrary and illegal. The order dated 20.4.2020 passed by the respondent No. 4-I.G.-cum-Principal Chief Security Commissioner/RPF N.C. Railway, Prayagraj is liable to be set aside and is set aside. 39. A writ in the nature of mandamus is issued commanding the respondents to execute the following directions.” 16. At this stage, it will be relevant to notice the dictum of the Apex Court in the case of Avtar Singh v. Union of India and others, (2016) 8 SCC 471 and the relevant para read as under: “38.1. 39. A writ in the nature of mandamus is issued commanding the respondents to execute the following directions.” 16. At this stage, it will be relevant to notice the dictum of the Apex Court in the case of Avtar Singh v. Union of India and others, (2016) 8 SCC 471 and the relevant para read as under: “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.” 17. Lately, in the case of Babu Lal Meena (supra) similar issue was considered by the Division Bench of this Court in special appeal which was decided on 2.1.2023 and the relevant portion thereof read as under: “It is not in dispute that the appellant had faced enquiry by the Juvenile Justice Board with reference to Case No. 305 of 2006 and in respect whereof there was no disclosure in the attestation form filled on 21.6.2014. There is also no dispute that in the said enquiry, the Juvenile Justice Board, Dousa (State of Rajasthan) found the appellant not guilty and had acquitted the appellant vide order dated 26.5.2015. Once it is clear from the record that the proceedings initiated against the appellant were in respect of commission of an offence while the appellant was a juvenile, the provisions of Section 19 of the Juvenile Justice (Case and Protection of Children) Act, 2000, as were in force, would become applicable. Section 19 of the 2000 Act provides as follows: “19. Removal of disqualification attaching to conviction: “1. Notwithstanding anything contained in any other law, a juvenile who has committed an offence and has been dealt with under the provisions of this Act shall not suffer disqualification, if any, attaching to a conviction of an offence under such law. 2. The Board shall make an order directing that the relevant records of such conviction shall be removed after the expiry of the period of appeal or a reasonable period as prescribed under the rules, as the case may be.” A perusal of the aforesaid provision would suggest that even an order of conviction cannot incur a disqualification, therefore, where there is acquittal, the position would be a lot more in favour of the juvenile. Sub-section (2) provides that relevant records of such conviction shall be removed after the expiry of the period of appeal or within a reasonable period as prescribed under the rules. There is nothing on record that any appeal was preferred against the order of acquittal of the appellant. In such circumstances, in normal course, as per the statutory provisions, the records would have to be weeded out. The purpose of inserting such a provision is to ensure that the past of the child does not haunt him in leading a scar free life after rehabilitation. In the instant case, the appellant though was subjected to an enquiry on a criminal charge by the Juvenile Justice Board but the same resulted in his acquittal. In such circumstances, whether suppression of the information by the appellant was bona fide or mala fide had to be ascertained in the contextual facts of the case. In the instant case, the appellant though was subjected to an enquiry on a criminal charge by the Juvenile Justice Board but the same resulted in his acquittal. In such circumstances, whether suppression of the information by the appellant was bona fide or mala fide had to be ascertained in the contextual facts of the case. It may be possible that the appellant did not deem it necessary to make such disclosure as his prosecution would not have incurred in any kind of disqualification by virtue of statutory provisions contained in 2000 Act. Even in Avtar Singh's case (supra), in paras 38.4, it is provided as follows: “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.” A perusal of the paragraph 38.4.3 of the judgment in Avtar Singh's case (supra) would indicate that if acquittal has already been recorded in a case involving moral turpitude or an offence of henious/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. In the instance case, the appellant was a juvenile and paragraph 13 of the order of the Juvenile Justice Board would suggest that in the evidence led during the course of enquiry nothing had come on record to indicate the presence of the appellant at the spot to confirm his involvement in the crime. It could therefore be taken as a case of clean acquittal.” 18. Having considered the facts of the instant case as well as the law which has been noticed hereinabove, it cannot be disputed that in respect of the Case Crime No. 637/2001, the petitioner was a minor at the time of its institution and he was even acquitted in the year 2006, prior to his appointment in the year 2006. 19. It is also relevant to mention that after the service of the petitioner was terminated on 6.8.2006 and an FIR was lodged bearing Criminal Case No. 1402/E/2006 and this was in respect of the fact that the petitioner had not disclosed in his verification affidavit regarding Case No. 637/2001, wherein the petitioner was acquitted on 18.11.2016. Hence, it is to be seen that on the date on which the verification affidavit was filed i.e. on 18.11.2006 there was no case pending nor in any case the petitioner was convicted nor any investigation was pending against the petitioner. 20. In view of the aforesaid, it cannot be said that the petitioner was at fault of not disclosing the same or that he concealed any fact and for the said reasons he cannot simplicitor be denied his employment on the aforesaid count. It is also not denied that Rule 14(1) of the U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules, 1991 had also not been followed. 21. The identical view was taken by this Court in case of Satendra Kumar Yadav v. State of U.P. in Writ-A No. 2844 of 2018 on 31.1.2023. 22. In view of the aforesaid discussions, the Court has no hesitation to hold that the impugned orders are bad in the eyes of law and are set aside. The respondents-authorities ought to have given a thoughtful consideration to the facts and circumstances of the case and also keeping in mind that the petitioner was a juvenile at the time when he was allegedly charged with the commission of the said case which in any case resulted in acquittal. The respondents-authorities ought to have given a thoughtful consideration to the facts and circumstances of the case and also keeping in mind that the petitioner was a juvenile at the time when he was allegedly charged with the commission of the said case which in any case resulted in acquittal. Accordingly, a direction is issued to the respondents to reconsider the case of the petitioner keeping in mind the observations made in this judgment as well as the decisions of this Court in Kishan Paswan (supra); Babu Lal Meena (supra) as well as Avtar Singh (supra) and pass appropriate orders after affording an opportunity of hearing to the petitioner preferably within a period of eight weeks from the date a certified copy of this order is placed before the authority concerned. 23. With the aforesaid, the petition is allowed. In the facts and circumstances, there shall be no order as to costs.