Allahabad High Court
Jitendra Kumar And 3 Others vs Union Of India And 6 Others on 29 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 2711
Author: Ashok Kumar
Bench: Ashok Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 72 Case :- WRIT - A No. - 35625 of 2017 Petitioner :- Jitendra Kumar And 3 Others Respondent :- Union Of India And 6 Others Counsel for Petitioner :- Tejasvi Misra Counsel for Respondent :- A.S.G.I.,Rajnish Kumar Rai,S K Rai Hon'ble Ashok Kumar,J.
Heard Sri Tejasvi Misra, learned counsel for the petitioners and Sri Vijay Kumar Rai, Advocate holding the brief of Sri Rajnish Kumar Rai, learned counsel representing all the respondents.
The instant writ petition has been filed by the petitioners assailing the orders dated 1.3.2017, 20.3.2017 and 27.3.2017 (Annexures 2-B, 3-B, 4-B and 5-B of the writ petition). The petitioners have prayed for issuance of a mandamus commanding the respondents to reinstate the petitioners into service with all consequential benefits.
Briefly the facts of the case are that the petitioners responded in pursuance of an advertisement (Advertisement No.1/11) which has been issued by the Chief Security Commissioner, Railway Protection Force (R.P.F.) Gorakhpur, U.P. (respondent no.3) for recruitment on the post of Constables (G.D.) in Railway Protection Special Force. In pursuance of the aforesaid advertisement the petitioners applied and they have received admit cards to appear in various stages of examination and thereafter they stood qualified for the aforesaid post of Constable (G.D.) An attestation form was required to be submitted by the petitioners in which there was column 12 which requires the disclosure of the character of the petitioners/ candidates and their antecedents as to whether any criminal case is pending against the candidates or had they ever been tried.
All the petitioners filled up the attestation form and they denied as at that point of time no criminal case was pending against them. After submission of the attestation form the petitioners were sent to their respective training centres for training. During the course of training the police verification reports of the petitioners were sought from the concerned District Magistrates. In the police verification report, which has been obtained by the District Magistrates, it was disclosed that a criminal case was lodged against the petitioners and are concluded, wherein the petitioners were acquitted. On account of said police reports, the petitioners were discharged from the services.
The attestation form of the petitioner no.1 was submitted on 18.6.2014 wherein, it is alleged that the petitioner no.1 did not disclose his character and antecedents in column 12 of the attestation form. Viz. a viz. Case Crime No. 283 of 2011 under Sections 279, 338 and 304-A I.P.C. (trivial in nature). After submission of the attestation form the petitioner no.1 has received an allotment letter wherein he was directed to join his training at ZTC Chink-Hill on 1.11.2014. Based on the police verification report disclosing the prosecution and acquaintance from the Court of law the petitioner no.1 was discharged amidst of training on 26.3.2015.
Against the order dated 26.3.2015 the petitioner no.1 filed a Writ Petition No. 35948 of 2015 and this Court vide order dated 21.11.2016 had quashed the order of discharge dated 26.3.2015 while remanding the matter back to the respondents for fresh consideration of the candidature of the petitioner in the light of law laid down by the Apex Court in the case of Avtar Singh vs. Union of India and others (2016) 8 SCC 471.
In pursuance of the order dated 21.11.2016 the petitioner no.1 (Jitendra Kumar) was called for personal hearing by the respondent on 12.1.2017 and after hearing the petitioner, the respondent no.4 has proceeded to cancel the candidature of the petitioner on the ground of intentional suppression of material fact at the time of filing up of attestation form, vide order dated 20.1.2017.
In the case of petitioner no.2 (Rishi Pal Singh) learned counsel for the petitioner submitted that the attestation form has been submitted by the petitioner no.2 on 23.5.2014 wherein, it is alleged that the petitioner no.2 did not disclose his character and antecedents in column 12 of the attestation form. Viz. a viz. a Case Crime No. 388 dated 17.10.2011 under Section 160 of I.P.C. was lodged. It is contended by the learned counsel for the petitioners that the petitioner no.2 Rishi Pal has received an allotment letter whereby he was directed to join the training at R.P.F. T.C./ Mukamghat Patna (Bihar) on 1.11.2014.
In the police verification report pertaining to the character of the petitioner no.2 the District Magistrate, Jhajjhar, Haryana has sent his report that the petitioner no.2 was tried and acquitted from the Court of law under Section 160 I.P.C. Based on the said report the petitioner no.2 was discharged amidst of training on 19.6.2015.
Learned counsel for the petitioners submitted that the application form has been submitted by the petitioner no.2 in March 2011 while case/FIR has been lodged on 17.10.2011 that is after filling up of the application form, and the case of the petitioner no.2 was concluded/ acquitted on 29.11.2013 that is much prior to filling up of attestation form, which was admittedly filled by petitioner no.2 on 23.5.2014. Therefore, the contention of learned counsel for the petitioners is that neither any case was pending at the time of filling up of the application form nor at the time of filling up of the attestation form, as such the petitioner no.2 was under the impression that no case, on the date of filling up of the form is pending hence, has denied regarding pendency of criminal cases against him.
As proceeded by petitioner no.1 by approaching this Court the petitioner no.2 has also approached this Court and has challenged the discharge order dated 19.6.2015. The writ petition filed by the petitioner no.2 was allowed vide order dated 22.12.2016 and the order of discharge dated 19.6.2015 was quashed and the matter was remitted back to the respondents for fresh consideration of the candidature of the petitioner no.2 in the light of the judgment of Apex Court in the case of Avtar Singh (Supra).
In pursuance of the order passed by this Court dated 29.11.2016 the petitioner no.2 was called for personal hearing on 15.3.2017 and after hearing the petitioner the respondent no.5 vide order dated 27.3.2017 had proceeded to cancel the candidature of the petitioner no.2 on the ground of intentional suppression of material fact at the time of filling up of attestation form.
Learned counsel for the petitioners submits that the nature of the criminal case lodged under Section 160 IPC is very trivial (having only one month maximum punishment) even then the respondents not only failed to appreciate triviality of the offence but also the relevant factor pertaining to the case/ registration of the FIR which was neither lodged at the time of application form nor at the time of filling up of the attestation form.
Learned counsel for the petitioners further submitted that in fact the out come of the acquittal order was not benefit of doubt rather it was a clean acquittal therefore, the counsel for the petitioners submits that the order impugned passed by the respondent is wholly illegal, arbitrary and perverse as the respondent no.5 was supposed to adjudge the suitability of candidature with reference to the nature of suppression and the nature of criminal case.
Learned counsel for the petitioners submits that almost identical facts are involved with regard to petitioner no.3 Manoj Kumar and petitioner no.4 Bhanu Pratap Attri, who were discharged by the respondent no.3 vide discharge orders dated 20.3.2017 and 1.3.2017 respectively.
Learned counsel for the petitioners therefore submitted that the respondents not only failed to appreciate the acquittal of the petitioners but also the nature of the case registered against them. Learned counsel for the petitioners submits that in fact the respondents instead of consideration as to whether the petitioners were suitable for appointment to the post of constable, they had acted mechanically by holding that the petitioners unfit for the post of constable on the basis of alleged incorrect facts furnished by the petitioners. The respondents authorities on the basis of information so furnished by the petitioners found the candidates unfit for employment in the Railway Protection Force.
Learned counsel for the petitioners further submits that after the remand order passed by this Court the respondents granted personal hearing to the petitioners, wherein the petitioners placed certain documents however, after hearing the petitioners the respondents found that in column 12, the petitioners in response to the question that whether they were ever arrested, or not, they had ticked 'No' and secondly, whether the petitioners were ever prosecuted, they had ticked 'No'. The authority/ respondent further found that while signing the attestation form and on oath on non-judicial stamp paper of Rs.20/- that if the fact that false information has been furnished or that there has been suppression of any factual information in the attestation form comes to the notice at any time during service, he will be ready for termination from service and he will have no right to claim against the Railway. The respondents have held that the petitioners have violated the terms and conditions so are stipulated in the attestation form.
The respondent authority on the basis of information so furnished by petitioners found their candidature unfit for employment in the Government. However, a brief reference was made to the Apex Court judgment in case of Avtar Singh (supra) but no reason was assigned why the said judgment was not applicable in the cases of the petitioners.
Learned counsel for petitioners submitted that respondent authority in a cursory manner rejected the claim of petitioners solely on the ground that they had ticked 'No' in Column 12 to two questions regarding arrest of petitioners and their prosecution, and the authorities failed to take note of guidelines as laid down by Apex Court in case of Avtar Singh (supra) in para 38.
He further submitted that at the time of filling up of the attestation form there was no case pending against the petitioners and further, at the time of submission of attestation form petitioners had already been acquitted of criminal cases, and looking to the trivial nature of the cases which were tried against petitioners, non-disclosure would not amount to terminating the services of petitioners, which was against the spirit of judgment in Avtar Singh's case.
Sri Misra, also contended that once this Court had remanded the matter back to decide the issue in light of Avtar Singh (supra), the authority was duty bound to consider the case of petitioners within the parameters laid down in said case in Para 38 but respondents rejected the claim on vague ground and failed to consider the case within the parameters of aforesaid judgment, thus the orders dated 1.3.2017, 20.3.2017 and 27.3.2017 passed by respondents are against the mandate of this Courts orders dated 22.11.2016, 18.10.2016 and 22.12.2016.
Learned counsel for the petitioner has placed reliance of Para 31 of the judgment of the Apex Court in Avtar Singh (Supra), which reads as follows :
31. Coming to the question whether an employee on probation can be discharged/ refused appointment though he has been acquitted of the charge(s), if his case was not pending when form was filled, in such matters, employer is bound to consider grounds of acquittal and various other aspects, overall conduct of employee including the accusations which have been levelled. If on verification, the antecedents are otherwise also not good, and in number of cases incumbent is involved then notwithstanding acquittals in a case/cases, it would be open to the employer to form opinion as to fitness on the basis of material on record. In case offence is petty in nature and committed at young age, such as stealing a bread, shouting of slogans or is such which does not involve moral turpitude, cheating, misappropriation, etc. or otherwise not a serious or heinous offence and accused has been acquitted in such a case when verification form is filled, employer may ignore lapse of suppression or submitting false information in appropriate cases on due consideration of various aspects."
Reliance has also been placed on a judgment passed by this Court in Writ-A No. 33265 of 2017 (Kalamuddin Ansari and another vs. Union of India and 4 others) wherein disclosure were not made in Column 12 of the case registered against the candidate, and it was held that the case fell within the parameters of principles elucidated in Para 38 of Avtar Singh's case.
In support of his contention learned counsel for the petitioners has placed reliance of a recent judgment in Civil Appeal No. 10571 of 2018 (Mohd. Imran vs. State of Maharashtra and others) dated 12th October 2018. The reliance has been placed on para 8 and 9 of the judgment.
Learned counsel for the petitioners has also placed reliance of a recent of judgment of this Court in the case of Raj Bahadur vs. Union of India and others passed in Writ A No. 39219 of 2017 decided on 13.12.2019.
Learned counsel for the petitioners has drawn the attention of the Court by placing the orders passed by the respondents authorities in the cases of similarly situated persons.
In the case of one Surendra Pratap Yadav, S/o Ram Kuber Yadav, Village Poora Bahoriya Post Gaddopur, Post Maharajganj, District Jaunpur, who has also filed a writ petition against the order passed by the respondent authority discharging him from training, a speaking order dated 12.5.2017 has been passed by I.G.-cum-CSC/ RPSF, New Delhi, in pursuance of the direction of this Court. Against Surendra Pratap Yadav a case was registered as Police Case No. 205-A/2008, under Section 147, 149, 323, 504, 506, 452 and 308 I.P.C. however, no details were given by Surendra Pratap Yadav while filling up attestation form which was signed on 16.5.2014. The I.G.-cum-Chief Security Officer/ Reserve Police Security Force, New Delhi has considered the claim of the applicant Surendra Pratap Yadav and has passed the following order :
"Keeping in view the PVR and facts represented in the statement of the candidate have come to the conclusion at the time of filling up of attestation form the character of the candidate was unblemished. Since the candidate was acquitted in the year 2012 itself hence he did not record so in the attestation form. However it is a fact that he made an incorrect statement of having been never involved in any criminal case in his life but I have a reason to believe that it must have been done in good faith since he got acquitted in the criminal case long before filling up of attestation form. Hence, his action appears to be in good faith.
Hence I have applied my mind and on evaluation of the facts on record, extant rules, and having accorded the opportunity of personal hearing and representation to the petitioner keeping with the principles of natural justice, and in light of directions of the Hon'ble Supreme Court judgment in Avtar Singh Vs. Union of India and others, I hereby come to the considered conclusion as Appointing Authority that Shri Surendra Pratap Yadav is fit for Government Service as a Constable in RPF/RPSF. The petitioner may be informed accordingly.
(Jaiaya Varmah) IG-cum-CSC/RPSF New Delhi."
Similarly, in the case of one Avneesh Kumar, S/o Rajendra Singh a speaking order has been passed by the same respondent authority following the principles laid down by the Hon'ble Apex Court in Avtar Singh vs. Union of India and others by declaring him to be fit for Government service as a Constable in R.P.F./ R.P.S.F. Per contra learned counsel for the respondent authorities submitted that the act of the petitioners amounted to suppression of facts as neither in attestation form nor in the affidavit, which was filed subsequently, they disclosed the fact that earlier a criminal case was filed against them and that in the said criminal case they were acquitted before filling up the form, filing the application in response to the advertisement.
However, as far as orders passed by respondents not considering the cases of petitioners in light of Avtar Singh (supra) as directed by this Court, he submitted that petitioners were guilty of suppression of material fact, which is evident from their affidavits, therefore, no benefit can be accorded to them.
I have heard learned counsel for the parties and perused the material on record.
As it is evident from pleading of the parties that petitioners had applied for the post of Constable (GD) in Railway Protection Force in March, 2011 and at that relevant point of time no case were pending against the petitioners, and it was subsequently in year 2011 that the cases under Sections 279, 338 and 304-A against petitioner no.1, under Section 160 of I.P.C. against petitioner no.2, under Sections 379, 356 IPC against petitioner no.3 and under Sections 354, 504, 506 IPC against petitioner no.4 were lodged, which ultimately resulted in their acquittal on 5.5.2014, 21.1.2014, 3.5.2014 and 16.4.2014 respectively. It is also not in dispute that petitioners had submitted their attestation form in the year 2014 that is after their acquittal.
Thus, both at the time of applying for the post of constable as well as at the time of filling up of the attestation form, no criminal case was pending against any of the petitioners. However, it was the duty of the petitioners to disclose about the sole criminal case lodged against them in which they were ultimately acquitted before being sent for training. However, in this regard the Apex Court in case of Avtar Singh (supra) had exhaustively laid down guidelines for consideration regarding the issue of suppression of material facts while seeking appointment. The same are extracted hereasunder:
"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. 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. 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."
In Para 38.4.1 the Apex Court had taken note of the fact that in a case trivial in nature in which conviction had been recorded, such as shouting slogangs at young age or for petty offences which if undisclosed would not have rendered incumbent unfit for post in question, the employer may in its discretion ignore such suppression of fact or false information by condoning the lapse. While in the case in hand, petitioners had already been acquitted of an offence under Sections 279, 338 and 304-A (petitioner no.1), under Section 160 of I.P.C. (petitioner no.2), under Sections 379, 356 IPC (petitioner no.3) and under Sections 354, 504, 506 IPC (petitioner no.4).
Further, in Para 38.4.3 the Apex Court while considering in matters in which 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. Thus, the Apex Court in matters of heinous/ serious crime where acquittal has been granted on technical ground has also tried to give benefit to the employee as to continuance of their service and the relevant authority may consider the same taking into the fact the earlier antecedents of the concerned employee.
As from perusal of the case in hand, it can safely be said that two relevant periods that is, time of filling of the form and secondly, stage of filling up of the form of attestation, there was no case pending against petitioners, and an omission on their part to make disclosure as mandated would not make them unfit for consideration for the job in question.
The respondents while deciding claim of petitioners pursuant to remand order only took note of the form so submitted by petitioners which were also before the said authorities earlier in time but failed to advert to the fact that this Court had required the authorities concerned to look at the case of petitioners from the angle of principles laid down in case of Avtar Singh (supra), which respondents failed to consider and decide in the light of the same.
I find that orders passed by respondent no.7 dated 1.3.2017, respondent no.4 dated 20.3.2017 and respondent no.5 dated 27.3.2017 are not in the light of directions of this Court dated 18.10.2016, 22.11.2016 and 22.12.2016 as such the same cannot be sustained and are, hereby, quashed.
The respondents are expected to decide the claim of petitioners in the light of directions given by this Court earlier on 18.10.2016, 22.11.2016 and 22.12.2016 as well as in light of principle laid down in case of Avtar Singh (supra). It is also expected that the entire exercise shall be completed by the respondents authorities expeditiously, preferably, within a period of one month from the date of production of certified copy of this order, in accordance with law, by reasoned and speaking order.
With the above direction, the writ petition stands partly allowed.
Order Date :- 29.01.2020 S.S.