Jharkhand High Court
Gaina Soren vs The State Of Jharkhand on 19 November, 2018
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 456 of 2017
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Gaina Soren --- --- Petitioner
Versus
1. The State of Jharkhand
2. The Director General of Police, Jharkhand
3. The Deputy Inspector General , Dumka
4. The Superintendent of Police, Dumka --- --- Respondents
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CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh
For the Petitioner: Mr. Durga Charan Mishra, Advocate For the Resp - State: Mr. Syed Ramiz Zafar, AC to AG
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04/ 19.11.2018 Heard counsel for the petitioner and the State.
2. Petitioner was appointed as a constable (Police Force No. 773) at Deoghar District Police Centre under Advertisement No. 01/2010 and joined as such on 01.09.2011. He had failed to disclose the pendency of a criminal case instituted against him i.e. Sikaripara P.S. Case No. 54/2005 under sections 147/148/149/452/380/342/427/120B of the Indian Penal Code in which charge sheet was submitted on 08.06.2007 bearing no. 56/07. It is evident from letter dated 04.01.2013 bearing no. 18 issued by the Sargent Major, Police Centre, Deoghar (Annexure-1) He was served with a show-cause. Departmental Proceeding No. 19/14 was initiated against him. It concluded in the order of dismissal dated 31.12.2014 passed by the Disciplinary Authority / Superintendent of Police, Deoghar (Annexure-3). The Appellate Authority cum Deputy Inspector General of Police, Dumka (Respondent No. 3) also rejected his appeal by Annexure-5 order bearing Memo No. 1638 dated 13.10.2016. Both the orders are impugned herein.
3. Petitioner was convicted by judgment dated 30.11.2012 passed by the SDJM, Dumka in T.R. Case No. 769/2012 arising out of G.R. Case No. 769/2005 and sentenced to undergo rigorous imprisonment for one year under section 148/149 of the Indian Penal Code, further rigorous imprisonment for two years under sections 452/149 of the Indian Penal Code, simple imprisonment for six months under sections 427/149 of the Indian Penal Code and three months under sections 341/149 of the Indian Penal Code. He preferred an appeal against his conviction. Petitioner along with 19 others accused / convicts, have been acquitted vide judgment dated 29.08.2015 passed by the District and Sessions Judge-II, Dumka in Criminal Appeal No. 80/2012, 81/2012 and 82/2012 (Annexure-4).
4. Learned counsel for the petitioner in support of the challenge to the 2 impugned orders has primarily taken the ground of his acquittal. According to him, allegations were made against 20 named and 100-150 unknown persons in relation to a land dispute. The Appellate Court found that the prosecution had not been able to bring home the charges beyond reasonable doubt. There were illegality or irregularity in the findings of the Learned Trial Court which has not properly appreciated the evidence. He submits that charges were concocted and also non serious. Relying upon the ratio rendered by the Apex Court in the case of Avtar Singh v. Union of India and others, (2016) 8 SCC 471 Paragraph- 38, it has been submitted that the Appellate Authority should have considered the judgment of acquittal before arriving at a decision. Dismissal from service is therefore arbitrary and does not show due application of mind to the facts and circumstances. Therefore, the order deserves to be set aside.
5. Respondents have filed their counter affidavit in which they have defended the impugned decisions. Counsel for the State has urged that suppression of a vital information relating to his antecedents and character before entering into service have been duly established in a departmental proceeding once it came to the knowledge of the Respondent employer during character verification. Petitioner cannot also take a plea that he did not have the knowledge of his implication in a criminal case as charge sheet was filed in 2007 itself. It is submitted that the ratio of the decision in the case of Avtar Singh (Supra) does not apply to the case of the petitioner. Paragraph-38.4 to 38.4.3 would apply to the case where 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 the knowledge of employer. In these circumstances, Apex Court had prescribed certain recourse appropriate to the case under paragraph-38.4.1. to 38.4.3. Moreover, by any stretch of logic or reasoning, allegation could not be treated to be trivial in nature, more so when the petitioner faced conviction before the Trial Court and has been acquitted on the basis of benefit of reasonable doubt by the Appellate Court. The purpose of furnishing complete information at the time of entry into service relating to antecedents and character is to find out fitness of incumbent whether he had good moral character. As such, employer has the discretion to terminate the employee if during character verification, criminal antecedents of the petitioner / employee has been revealed which was suppressed by him at the time of entry into service. He has also relied upon various observations made by the Apex Court in the case of 3 Avtar Singh (Supra) while dealing with the precedents on the issue at hand.
6. Considered the submissions of learned counsel for the parties in the light of the relevant materials pleadings on record and also the ratio rendered by the Apex Court in the case of Avtar Singh (Supra). This case was referred to the larger Bench on account of conflict of opinion in the various decisions of the Division Benches of the Apex Court as noticed in the case of Jainendra Singh Versus State of U.P. [(2012) 8 SCC 748]. How far furnishing of false information or suppression of criminal antecedents of a candidate could affect such appointment were under consideration of the Apex Court in the case of Avtar Singh (Supra). After a survey of the precedents on this issue, the Apex Court has summarized its conclusions at Paragraph-38 which are profitably quoted hereunder:
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 4 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. The Apex Court has while discussing the issue observed that verification of a candidate is necessary to find out the fitness of an incumbent and if he has good moral character. The declarant is duty bound to furnish it correctly and any suppression of material facts or submitting false information may, by itself, lead to termination of his services or cancellation of candidature in an appropriate case. Fraud and misrepresentation vitiates a transaction and in case employment has been obtained on the basis of forged documents, as observed in the case of Union of India versus M. Bhaskaran [(1995) Supp. (4) SCC 100], the incumbent may be terminated without holding any inquiry. However, the Apex Court in the case of Avtar Singh (Supra), added a rider that in case employee is confirmed, holding a civil post and has protection of Article 311 (2), due inquiry has to be held before terminating the services. It has been further observed that verification of character and antecedents is one of the important criteria to assess suitability and is open to the employer to adjudge antecedents of the incumbent, but ultimate action should be based upon objective criteria on due consideration of all relevant aspects.
8. In the facts of the present case, the petitioner at the time of making application in the year 2010 apparently had the knowledge of pendency of a criminal case against him instituted for the various offences under the Indian Penal Code. It is not a case where conviction or acquittal have been recorded before filing of the application or verification form. The allegation could not also be said to be trivial in nature such as shouting slogans at young age or for petty 5 offence which if disclosed would not have rendered an incumbent unfit for the post in question. In such case, the employer has discretion to ignore such suppression of fact or false information by condoning the lapse. Moreover, there is a conviction for the alleged offences in the year 2012 by the Learned Trial Court, whereas the Appellate Court has acquitted the petitioner and others by giving them the benefit of reasonable doubt. The employer have also conducted a departmental inquiry before passing the order of termination / dismissal on the grounds of suppression of a vital information which were to be disclosed in the column in the application form. Counter affidavit has also dealt with the ground of his subsequent acquittal and stated that the dismissal was based on suppression of criminal antecedents at the time of entry into service which were found during character verification and conviction was also recorded by the Learned Trial Court thereupon.
9. In the facts and circumstances recorded hereinabove and in view of the discussions made, this court does not find any reason to interfere in the impugned orders. The petitioner can't take the benefit of the ratio laid down in the case of Avtar Singh (Supra) in the facts and circumstances of the instant case. Accordingly, writ petition is dismissed.
(Aparesh Kumar Singh, J) Ranjeet/