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2024 DIGILAW 755 (ALL)

Nikhilesh Kumar Gautam v. State of U. P.

2024-03-11

ASHWANI KUMAR MISHRA, SYED QAMAR HASAN RIZVI

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JUDGMENT : Syed Qamar Hasan Rizvi, J. 1. Heard learned counsel for the parties and perused the records. 2. The case of the petitioner-appellant as narrated in the writ petition is that the petitioner-appellant applied for the post of clerk in the Kanpur Judgeship in pursuance of the advertisement notified by the State Government on 17.6.2017 on the Government Portal. After going through the written test as well as the typing test he was finally declared selected on 2.6.2018. Thereafter, verification of the documents was made on 11.2.2019 in respect of the selected candidates including the petitioner-appellant and further the candidates were required to submit an affidavit making certain declarations. The appellant also filed an affidavit on 11.2.2019 declaring therein that no criminal case is pending against him nor he has been convicted in any case. Thereafter, the appellant-petitioner was appointed, and accordingly joined on 12.2.2019 as Misc. Clerk in the Additional Court Judgeship Kanpur Nagar. 3. The said appointment upto 30.3.2020 was of contractual nature. However, the same was extended upto 28.2.2021. The contention of the counsel for the appellant is that all of sudden on 5.8.2019, the appellant received an undated show-cause notice issued by the Additional District and Sessions Judge, Kanpur Nagar calling upon the explanation from the appellant to be submitted upto 6.8.2019 for alleged concealment of certain information to have been received by the authorities during the police verification regarding character and antecedents. The appellant appeared on the due date before the Additional Sessions Judge, Kanpur Nagar and submitted his explanation stating therein that he has no criminal history. He further submits that a criminal case under Sections 354, 506 IPC and Section 7/8 of POCSO Act was lodged against him in respect of some family dispute with the neighbour, in which final report was submitted by the concerned police on 24.11.2018, without any arrest. Therefore, there is no concealment on the part of the appellant-petitioner on the date of appointment or on the date of affidavit i.e. 11.2.2019 or 12.2.2019. The District Judge without taking into consideration the material facts that on the date of filing of the affidavit no criminal case was pending against the appellant terminated the services of the appellant vide order dated 13.9.2019. Aggrieved by the said termination order the appellant preferred writ petition having No. 16199 of 2019. 4. The District Judge without taking into consideration the material facts that on the date of filing of the affidavit no criminal case was pending against the appellant terminated the services of the appellant vide order dated 13.9.2019. Aggrieved by the said termination order the appellant preferred writ petition having No. 16199 of 2019. 4. The contention of learned counsel for the petitioner-appellant is that Hon'ble Single Judge without taking into consideration the material aspect of the matter that on the date of filing of the affidavit no criminal case was pending against the appellant, and as such allegation of concealment of information in the declaration is baseless, dismissed the writ petition filed by the petitioner without proper appreciation of the materials on record vide order dated 18.10.2019. The relevant portion of the impugned order dated 18.10.2019 is reproduced as under: “It is urged by learned counsel for the petitioner that on bona fide belief the petitioner did not disclose that the criminal case came to be lodged against him. The third respondent, District and Sessions Judge, Kanpur Nagar, in the order has noted that petitioner was fully aware of the lodging of the F.I.R. however, petitioner suppressed the material fact in obtaining appointment. The submission of learned counsel for the petitioner that the petitioner on the date of appointment was not having any criminal case lodged/pending against him cannot be accepted for the reason that the petitioner was bound to have disclosed the lodging of the F.I.R. against him. On specific query, learned counsel for the petitioner admits that petitioner was appointed on contract and has no legal right to continue as clerk. Having due regard to the facts and circumstances of the case, this Court declines to exercise its discretionary jurisdiction under Article 226 of the Constitution. The writ petition is accordingly dismissed. It is clarified that this order shall not be an impediment in the event of the petitioner seeking fresh appointment in future.” 5. Having due regard to the facts and circumstances of the case, this Court declines to exercise its discretionary jurisdiction under Article 226 of the Constitution. The writ petition is accordingly dismissed. It is clarified that this order shall not be an impediment in the event of the petitioner seeking fresh appointment in future.” 5. Per contra, learned counsel appearing on behalf of the respondent submitted that after the petitioner was declared selected for the Class-III post by the recruitment cell he was required vide order dated 25.1.2019 to appear before the Vigilance Committee chaired by the first Additional District Judge, Kanpur Nagar on 11.2.2019 at 10.00 a.m. The purpose of his appearance was to verify the petitioner's credentials including the submission of the requisite documents, medical certificates, and an affidavit stating that he had no criminal case pending against him. In compliance of the same, the petitioner submitted two affidavits on 11.2.2019. In these affidavits, he unequivocally declared that no criminal case was pending in any Court. Furthermore, he stated that he had never been convicted by any Court in any criminal matter. These affidavits were a crucial part of the verification process, as any false information provided therein could lead to the cancellation of the petitioner's candidature. Subsequently, the District Judge of Kanpur Nagar issued a contractual appointment letter to the petitioner on 12.2.2019, offering him the post of Misc. Clerk from the date of joining till 31.3.2020. Alongside the appointment letter, a service agreement under “The Uttar Pradesh Fast Track Court/Additional Court and Contractual ICT Posts Recruitment 2017” was executed between the petitioner and the District Judge, formalizing their contractual relationship. Following the issuance of the appointment letter and execution of the service agreement, the Officer-in-Charge (Administration)/First Additional District Judge of Kanpur Nagar initiated the process of character and antecedent verification. On 11.4.2019, a letter was sent to the Senior Superintendent of Police, Kanpur Nagar, requesting verification of the petitioner's character and antecedents to which the Senior Superintendent of Police responded with a report dated 20.6.2019, revealing the existence of a criminal case having Case Crime No. 328/2018, under Sections 354, 506 IPC, and Sections 7/8 of the POCSO Act, registered at Police Station Bithoor, Kanpur Nagar. This report uncovered a significant discrepancy between the information provided by the petitioner in his affidavits. This report uncovered a significant discrepancy between the information provided by the petitioner in his affidavits. Upon discovering this discrepancy, the Officer-in-Charge (Administration)/First Additional District Judge of Kanpur Nagar issued a show-cause notice to the petitioner on 5.8.2019 requiring him to submit a written explanation and appear for a personal hearing on 6.8.2019 to justify why his candidature should not be cancelled for concealing facts about the criminal case against him. In reply to the same dated 6.8.2019, the petitioner acknowledged the criminal case, but claimed it to be a false case. He explained that the case stemmed from an altercation between his family and their neighbours, which was later resolved, leading to the submission of a Final Report by the police. Despite the petitioner's explanation, the District Judge, Kanpur Nagar decided to terminate the petitioner's services. The termination order, dated 13.8.2019, was issued after affording the petitioner due opportunity for hearing. This decision was taken in light of the petitioner's deliberate concealment of relevant facts regarding the criminal case against him, which undermined the integrity of the verification process and breached the terms of his contractual appointment. 6. Refuting the argument made by the learned counsel for the respondents it has been contended by the learned counsel for the appellant that the fact with regard to pendency of criminal proceedings was not initially known to the appellant when he applied for appointment and that the proceedings otherwise concluded with submission of final report in the matter. It is submitted that seriousness of allegations levelled against the petitioner as well as his suitability for contractual appointment ought to have been examined in view of the law laid down by the Supreme Court in the case of Avtar Singh v. Union of India and others, 2016 (8) SCC 471 , which has been reiterated in the case of Pawan Kumar v. Union of India and another, 2022 Supreme (SC) 391. The extract from the relevant portion of the judgment passed in of Pawan Kumar (Supra) is quoted hereunder: “13. What emerges from the exposition as laid down by this Court is that by mere suppression of material/false information regardless of the fact whether there is a conviction or acquittal has been recorded, the employee/recruit is not to be discharged/ terminated axiomatically from service just by a stroke of pen. What emerges from the exposition as laid down by this Court is that by mere suppression of material/false information regardless of the fact whether there is a conviction or acquittal has been recorded, the employee/recruit is not to be discharged/ terminated axiomatically from service just by a stroke of pen. At the same time, the effect of suppression of material/false information involving in a criminal case, if any, is left for the employer to consider all the relevant facts and circumstances available as to antecedents and keeping in view the objective criteria and the relevant service rules into consideration, while taking appropriate decision regarding continuance/suitability of the employee into service. What being noticed by this Court is that mere suppression of material/false information in a given case does not mean that the employer can arbitrarily discharge/terminate the employee from service. 14. At one stage after the matter being heard, detailed order was passed by this Court on 21st October, 2021 and taking note of the judgment of Avtar Singh (supra) directed the employer to review its decision in the light of the decision of this Court. In compliance thereof, the review order has been passed on 23rd December, 2021 confirming its earlier decision of discharge dated 24th April, 2015. The bare perusal of the review order dated 23 rd December, 2021, itself indicates that the authority has not applied its mind and just after reproduction of facts, confirmed the order of discharge dated 24th April, 2015. 15. It may be further noticed that in para 5(c) of the order, a reference has been made of the affidavit submitted by the appellant at the time of filling his application form, but on the day when the application form was filled, the information which he disclosed in terms of clause 9(f) of employment notice indisputedly, no criminal case on that date was either instituted or pending against him. It is relevant to note that the employment notice is of 27th February, 2011 and the alleged criminal case was instituted on 4th April, 2011. It is relevant to note that the employment notice is of 27th February, 2011 and the alleged criminal case was instituted on 4th April, 2011. At the same time, the authority has not even considered the scope and ambit of Rule 52 of the Rules 1987 that after verification of the character/antecedents of the incumbent, it will be an obligation upon the authority to examine as to whether the incumbent/recruit is suitable to become a member of the force and without appreciation in a mechanical manner confirmed the order of discharge dated 24th April, 2015. 16. The judgment relied upon by the respondent Rajasthan Rajya Vidyut Prasaran Nigam Limited and another v. Anil Kanwariya, (2021) 10 SCC 136 , may not be of any assistance for the reason that it was a case where the respondent employee before submitting application pursuant to the advertisement inviting applications was convicted by the competent Court of jurisdiction and this fact was not disclosed by him while filling his application form and that was the reason favoured upon the Court while upholding action of the authority in 2 passing the order of termination which was impugned in the proceedings. We have already quoted paragraph 38 of the judgment by a three Judge Bench of this Court in Avtar Singh (supra) and in the context of the factual background of the present case applied the said principles. One distinguishing factor, as noticed above, is that the criminal complaint/FIR in the present case was registered post submission of the application form. We have also taken into account the nature of the allegations made in the criminal case and that the matter was of trivial nature not involving moral turpitude. Further, the proceedings had ended in a clean acquittal. As is clear from paragraph 38 in Avtar Singh (supra), all matters cannot be put in a straitjacket and a degree of flexibility and discretion vests with the authorities, must be exercised with care and caution taking all the facts and circumstances into consideration, including the nature and type of lapse. 17. As is clear from paragraph 38 in Avtar Singh (supra), all matters cannot be put in a straitjacket and a degree of flexibility and discretion vests with the authorities, must be exercised with care and caution taking all the facts and circumstances into consideration, including the nature and type of lapse. 17. Adverting to the facts of the instant case, at the time of attestation form filled by the appellant, the criminal case was already registered against him but it may be noticed that at the very threshold, the complainant filed his affidavit that the complaint on which FIR came to be registered was due to misunderstanding and he did not want to pursue his case any further, but still charge-sheet came to be filed and on the first date of hearing, the alleged victim PW-1 did not support case of the prosecution and thus the order of clean acquittal came to be passed by the learned Judge of competent jurisdiction by judgment dated 12th August, 2011. 18. The criminal case indeed was of trivial nature and the nature of post and nature of duties to be discharged by the recruit has never been looked into by the competent authority while examining the overall suitability of the incumbent keeping in view Rule 52 of the Rules 1987 to become a member of the force. Taking into consideration the exposition expressed by this Court in Avtar Singh (supra), in our considered view the order of discharge passed by the competent authority dated 24th April, 2015 is not sustainable and in sequel thereto the judgment passed by the Division Bench of High Court of Delhi does not hold good and deserves to be set aside.” 7. Submission is that the claim of the appellant has not been examined in correct perspective, and therefore, the cancellation of appointment is unsustainable. 8. The satisfaction of the employer regarding suitability for employment must be based on objective criteria. Even if the employer's satisfaction is subjective in nature, yet, it must be based on relevant consideration. In the facts of this case, there is no consideration on part of the employer regarding the materials on record. Admittedly, a closure report had been filed before the affidavit was submitted by the employee. Since, there was no arrest made it is not clear as to whether the candidate was even aware of the case filed against him. 9. In the facts of this case, there is no consideration on part of the employer regarding the materials on record. Admittedly, a closure report had been filed before the affidavit was submitted by the employee. Since, there was no arrest made it is not clear as to whether the candidate was even aware of the case filed against him. 9. The format in which information was called for, on affidavit, requires the candidate to even disclose as to whether any criminal case was initiated against him and if it was then what is its outcome. This disclosure again is intended to determine the suitability of a candidate for employment. Even if there is a technical breach of the condition on part of the candidate but that, in itself, cannot be conclusive. The material against him has to be objectively considered. 10. It is open for the employer to call for all necessary information in this regard and then take an informed decision. Whether the withholding of information is deliberate or inadvertent; allegations are trivial or serious; materials against the employee adversely reflect upon his suitability for employment or not are the aspects that require proper examination. The consideration otherwise has to be in terms of the law laid down in Avatar Singh (Supra) and Pawan Kumar (Supra). Since there is no consideration of appellant's candidature on relevant parameters as such the order impugned cannot be sustained. 11. We have considered the respective submissions advanced and have perused the materials on record. The object of ascertaining the criminal antecedents of a candidate for determining his suitability has a definite purpose to achieve. It is to assess his suitability for employment. What is the nature of allegations levelled against him or what is the materials on record to reflect on his personality etc. are the issues to be resolved. The fact that a criminal case was lodged against a candidate is not a material in itself to disqualify him for employment unless the materials against him are analysed. 12. What is the nature of allegations levelled against him or what is the materials on record to reflect on his personality etc. are the issues to be resolved. The fact that a criminal case was lodged against a candidate is not a material in itself to disqualify him for employment unless the materials against him are analysed. 12. Taking into consideration the facts of the case it is evident that the case of the petitioner-appellant insofar as it relates to the concealment of material information in the affidavit-declaration at the time of appointment is concerned, the same has not been properly considered by the authorities and the termination order was passed dehors the observations made by the Hon'ble Apex Court in the case of Pawan Kumar (Supra). 13. For the reasons recorded above, this appeal succeeds and is allowed and a direction is issued to the employer i.e. respondent No. 3 to examine the question of suitability of appellant for appointment, keeping in view the principles laid down by Hon'ble Supreme Court in Avtar Singh (Supra) by passing a fresh order within a period of three months from the date of presentation of certified copy of this order.