Central Administrative Tribunal - Allahabad
Manoj Kumar vs M/O Defence on 23 March, 2023
O.A.1346/2018
(Reserved on 20.3.2023)
Central Administrative Tribunal, Allahabad
****
Original Application No.1346 of 2018
This the 23rd Day of March, 2023.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Manoj Kumar Yadav s/o late Ram Chandra Yadav r/o village-
Bhagwanpur Khurd, Post- Dhaurahara, District- Varanasi.
......Applicant
By Advocate: Sri Sunil
Versus
1. Union of India through Secretary, Ministry of Defence, New
Delhi.
2. Senior General Manager, Ordinance Factory , Kalpi
Road,Kanpur.
3. General Manager,Ordinance Factory, Kalpi Road, Kanpur.
4. Deputy General Manager, (Administration), Ordinance
Factory, Kalpi Road , Kanpur.
...Respondents
By Advocate: Shri M.K. Sharma
ORDER
By Hon'ble Mr. Justice Om Prakash VII, Member (J) The applicant has filed the present O.A. under Section 19 of the Administrative Tribunals Act, 1985 with the prayer to quash the order dated 10.8.2017 passed by the Joint Manager, Administration Store Ordnance Factory, Kalpi Road by which the appointment of the applicant is rejected and for direction to the respondents to issue appointment order in favour of the applicant on the post of Turner (Semi Skilled) pursuant to the advertisement dated 1st November, 2013.
2. The facts in brief giving rise to the present O.A. are that in pursuant to the advertisement issued by the DGM, applicant Page 1 of 17 O.A.1346/2018 applied for the post of Turner (Semi Skilled) under general category. Applicant appeared in the written examination and was called for interview. In the police verification, applicant had disclosed all the criminal cases. He did not disclose the fact regarding his acquittal in criminal case in which he had already been acquitted much before the selection on 2.5.2011. It is also stated that a false and fabricated FIR was lodged against the applicant on 6.3.2004, under Section 325, 323, 304, 506 IPC at P.S. Chaubepur, District- Varanasi. Applicant got acquitted in the aforesaid criminal case No. 48 of 2001 vide order dated 2.5.2011. List of provisionally selected candidates was declared on 23.10.2014, in which the name of applicant may be found at Sl.No.15 on the post of Turner (Semi Skilled). All the selected candidates were issued appointment letter but the appointment letter was not issued to the applicant till date, despite the fact that the applicant has already been exonerated in the criminal case vide judgment and order dated 18.2.2006. Senior General Manager of Ordnance Factory, Kalpi Road, Kanpur issued show cause notice dated 11.9.2015 to the applicant seeking reply from the applicant as to why he has not disclosed registration of criminal case in PVR. Applicant submitted reply on 23.9.2015 mentioning therein that under state of confusion, particularly when the applicant has been acquitted much before the selection, it could not be disclosed. It is further stated that in similar set of facts and circumstances, the Hon'ble High Court of Allahabad in Writ Petition No. 2781 of 2016 (Punit Kumar Vs. State of U.P. and others) and Writ Petition No. 2781 of 2016 (Anuj Deol Vs. State of U.P. and others), directed the respondents to send the applicant for training on the post of Sub Inspector in Civil Police in view the fact that after acquittal in criminal case, it is deemed no criminal case was ever registered against the applicant. But the respondents vide impugned order dated 10.8.2017 cancelled the appointment of the applicant on the ground that applicant had concealed the fact of police case in column 12(i) and (12(ii) of verification form.
Page 2 of 17 O.A.1346/20183. Per contra, learned counsel for the respondents has filed counter reply, stating therein that applicant was provisionally selected on the post of Turner (SS) in pursuance of the advertisement dated 26th October-1st November, 2013. From the police verification report dated 1.1.2015, it came to know that criminal case N.48/2004 under Section 323/325/504/506 IPC was lodged against the applicant and the applicant was acquitted by the Hon'ble Court vide order dated 2.5.2011 on the basis of compromise but this fact was not disclosed by the applicant while filling up and submitting his attestation form either against column 12 (i) (b) or against column 12 (ii) despite a clear categorical and unambiguous warning that (i) furnishing of false information or suppression of any factual information in the attestation form would be a disqualification and is likely to be render the candidature unfit for the employment under govt. (ii) if detained convicted debarred are subsequent to the completion and submission of this form, the details should be communicated immediately to the UPSC or the authorized to whom the attestation form has been sent earlier, as the case may be, failing which it deemed to be a suppression of factual information (iii) if the fact that false information has been furnished or there has been suppression of any factual information in the attestation form comes to the notice at any time during the service of a person his services would be liable to be terminated. It is further stated that in column 12(i)(b) of attestation form it is mentioned that "Have you ever been prosecuted" but the applicant replied in negative in attestation form. Since the information regarding criminal case was suppressed by the applicant, he was not suitable for Govt. employment. Accordingly, during the pendency of O.A. No. 1120 of 2016, Ordnance Factory Board, Kolkatta directed vide letter dated 1.3.2017 not to issue appointment letter to the applicant. After disposal of O.A. No. 1120/2016, copy of Court order dated 1.6.2017 was forwarded to the Ordnance Factory Board, Kolkatta vide letter dated 7.7.2017 and Ordnance Factory Kolkatta directed vide letter dated 25.7.2017 to confirm the compliance of direction Page 3 of 17 O.A.1346/2018 issued by the Ordnance Factory Board, Kolkatta letter dated 1.3.2017. Thereafter, the decision of Ordnance Factory Kolkatta was communicated to the applicant vide letter dated 10.8.2017, which is impugned in the present O.A.
4. Heard the learned counsel for the parties.
5. Submission of the learned counsel for the applicant that applicant submitted reply to the show cause notice dated 11.9.2015 and 23.9.2015 stating therein that under the State of confusion, particularly when the applicant was acquitted much before the selection, applicant felt that it would not be proper to disclose the criminal case in which he has already been acquitted. It is also submitted that in similar matters, Hon'ble High Court directed the department to send the applicants on training. O.A No. 1120/2016 filed by the applicant was disposed off by this Tribunal vide order dated 1st June 2017 with direction to take a decision in the matter. It is further submitted that since the applicant has been acquitted in the year 2011, therefore, he has not given information in regard to registration of petty case, thus, he is fully eligible for the appointment on the post of Turner. Learned counsel for the applicant has also placed reliance on judgment and order passed by the Hon'ble High Court in Writ A No. 9300 of 2020 (Mooni Vs. State of U.P. an 3 others) decided on 2.12.2020.
6. Learned counsel for the respondents submitted that applicant has concealed the material fact in the attestation form hence he is not entitled for the Govt. job and on the ground of suppression of criminal case lodged against him, his candidature was rightly cancelled by the department.
7. We have considered the rival submissions of the learned counsel for the parties and have gone through the entire record.
8. It is admitted fact that a Criminal case No. 48 of 2004 under Section 323/325/504/506 IPC was registered against the applicant in which he was acquitted vide order dated 2.5.2011. This fact has not been disclosed by the applicant in his attestation form and when from the police verification report, this fact was came to the Page 4 of 17 O.A.1346/2018 knowledge of the department, department has cancelled the candidature of the applicant.
9. In the case of Mooni Vs. State of U.P. and 3 others (supra), the Hon'ble Apex Court has observed as under:-
The petitioner is principally aggrieved by the order of 21 November 2020 in terms of which the Superintendent of Police Amroha has proceeded to reject his claim for being accorded appointment on the ground of pendency of two criminal cases.
The petitioner admittedly was declared successful in the recruitment exercise which was undertaken by the Board for appointment as a Constable in the Civil Police. The petitioner had also undisputedly made a candid and truthful disclosure in respect of his arraignment in case crime No. 68 of 2016 and 147 of 2017. The Writ Petition as originally framed had impugned a decision of the Board by which it had held that it would be the S.P. Amroha who would have to take a decision with respect to the suitability of the petitioner for being accorded appointment. During the pendency of this petition, the S.P. Amroha was directed to take a decision accordingly. It is in that backdrop that the impugned order of 20 November 2020 has come to be passed.
The Court is constrained to note that although the S.P. does take note of the decision of the Supreme Court rendered in Avtar Singh Vs. Union of India and Others (2016) 8 SCC 471, a reading of the impugned order evidences an abject failure to apply mind to the principles ultimately enunciated and on the basis of which alone the claim of the petitioner was liable to be adjudged. In Avtar Singh the Supreme Court after noticing the previous decisions rendered on the subject of a fair disclosure and a right of appointment elucidated the guiding principles in the following terms :-
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.Page 5 of 17 O.A.1346/2018
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.Page 6 of 17 O.A.1346/2018
38.9.In case the employee is confirmed in service,holdingdepartmental 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."
From the principles as spelt out in Avtar Singh and more particularly paragraphs 38.5 and 38.6 thereof, it is manifest that an obligation stood cast upon the S.P. to consider the suitability of the petitioner being inducted in service notwithstanding his arraignment in the criminal cases especially in light of the full and fair disclosure that was made by him in that behalf. Rather than discharging that function, the S.P. has merely proceeded to postpone the taking of an appropriate decision till the conclusion of those two criminal cases. The decision so taken flies foul not just of the command of this Court but also in light of what was held in Avtar Singh. Surprisingly, although the Court had commanded the S.P. to consider the case of the petitioner specifically in light of the decision of the Supreme Court and which he has noticed himself in the order impugned, he has paid mere lip service to that direction and has clearly failed to comply with that direction. As noted above, the impugned order ex facie manifests a deliberate non application of mind. In any case the action of the S.P. to postpone the taking of a decision awaiting conclusion of the two criminal cases cannot possibly be countenanced. The learned standing counsel has fairly conceded to what has been recorded above and submits that the impugned order would not sustain.
The Court while tempted to enter an adverse remark against the S.P. in light of what has been noted above, refrains from doing so in the hope and trust that he shall upon remit, decide the matter fairly and in light of the original directions issued by the Court.
The Court further clarifies that it has not taken a view on the merits of the suitability or otherwise of the petitioner's claim Page 7 of 17 O.A.1346/2018 to appointment. That is a decision which must necessarily be taken by the S.P. himself bearing in mind the nature of allegations levelled against the petitioner in the two pending criminal cases and their impact on his suitability to be offered employment in the police force. That decision is left for the independent evaluation of the S.P. concerned.
Accordingly the writ petition is allowed. The impugned order dated 20 November 2020 is hereby quashed and set aside. The matter shall stand remitted to the Superintendent of Police Amroha who shall now take a decision afresh and strictly in accordance with the observations entered above. The exercise of consideration shall be concluded expeditiously and in any case within a period of two weeks from today."
10. In the case of Rajasthan Rajya Vidyut Prasaran Nigam Ltd. Vs. Anil Kanwariya (Civil Appeal No. 5743-5744 of 2021 decided on 17.9.2021, reported in All India Services Law Journal 2021 (3) 332, Hon'ble Apex Court has held as under:-
"8. While considering the aforesaid issues, few decisions of this Court on appointment obtained by fraud/misrepresentation and/or appointment obtained by suppression of material facts are required to be referred to and considered.
8.1 In the case of Secretary, Department of Home Secretary, A.P. Vs. B. Chinnam Naidu reported in 2005(2) SLJ 233, this Court has observed that the object of requiring information in the attestation form and the declaration thereafter by the candidate is to ascertain and verify the character and antecedents to judge his suitability to enter into or continue in service. It is further observed that when a candidate suppresses material information and/or gives false information, he cannot claim any right for appointment or continuance in service. 8.2 In the case of Devendra Kumar (supra), while joining the training, the employee was asked to submit an affidavit giving certain information, particularly, whether he had ever been involved in any criminal case. The employee submitted an affidavit stating that he had never been involved in any criminal case. The employee completed his training satisfactorily and it was at this time that the employer in pursuance of the process of character verification came to know that the employee was in fact involved in a criminal case. It was found that the final report in that case had been submitted by the prosecution and accepted by the Judicial Magistrate concerned. On the basis of the same, the employee was discharged abruptly on the ground that since he was a temporary government servant, he could be removed from service without holding an Page 8 of 17 O.A.1346/2018 enquiry. The said order was challenged by the employee by filing a writ petition before a Single Judge of the High Court which was dismissed. The Division Bench upheld that order, which was the subject matter of appeal before this Court.
Dismissing the appeal, this Court observed and held that the question is not whether the employee is suitable for the post. The pendency of a criminal case/proceeding is different from suppressing the information of such pendency. The case pending against a person might not involve moral turpitude but suppressing of this information itself amounts to moral turpitude. It is further observed that the information sought by the employer if not disclosed as required, would definitely amount to suppression of material information and in that eventuality, the service becomes liable to be terminated, even if there had been no further trial or the person concerned stood acquitted/discharged. It is further observed by this Court in the said decision that where an applicant/employee gets an order by misrepresenting the facts or by playing fraud upon the competent authority, such an order cannot be sustained in the eye of the law. "Fraud avoids all judicial acts, ecclesiastical or temporal". It is further observed and held that dishonesty should not be permitted to bear the fruit and benefit those persons who have defrauded or misrepresented themselves and in such circumstances the court should not perpetuate the fraud by entertaining petitions on their behalf. The relevant observations in the said decision are in paras 12, 13, 18 & 25, which are as under:
12. So far as the issue of obtaining the appointment by misrepresentation is concerned, it is no more res integra. The question is not whether the applicant is suitable for the post. The pendency of a criminal case/proceeding is different from suppressing the information of such pendency. The case pending against a person might not involve moral turpitude but suppressing of this information itself amounts to moral turpitude. In fact, the information sought by the employer if not disclosed as required, would definitely amount to suppression of material information. In that eventuality, the service becomes liable to be terminated, even if there had been no further trial or the person concerned stood acquitted/discharged.
13. It is a settled proposition of law that where an applicant gets an office by misrepresenting the facts or by playing fraud upon the competent authority, such an order cannot be sustained in the eye of the law. "Fraud avoids all judicial acts, ecclesiastical or temporal."
[Vide S.P. Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1: AIR 1994 SC 853.] In Lazarus Estates Ltd. V. Beasley [(1956) 1 QB 702: (1956) 2 WLR 502: (1956) Page 9 of 17 O.A.1346/2018 1 ALL ER 341 (CA)] the Court observed without equivocation that: (QB p. 712) "... No judgment of a court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything."
18. The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit those persons who have frauded or misrepresented themselves. In such circumstances the court should not perpetuate the fraud by entertaining petitions on their behalf. In Union of India v. M. Bhaskaran (1995) Supp (4) SCC 100 this court, after placing reliance upon and approving its earlier judgment in Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi (1990) 3 SCC 655, observed as under: (M. Bhaskaran case, SCC p. 104, para 6) If by committing fraud any employment is obtained, the same cannot be permitted to be countenanced by a court of law as the employment secured by fraud renders it voidable at the option of the employer.
25. More so, if the initial action is not in consonance with law, the subsequent conduct of party cannot sanctify the same. Sublato fundamento cadit opus - a foundation being removed, the superstructure falls. A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent court. In such a case the legal maxim nullus commodum caprere potest de injuria sua propria applies. The persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation. [Vide Union of India v. Major General Madan Lal Yadav (1996) 4 SCC 127:1996 SCC (Cri) 592: AIR 1996 SC 1340 and Lily Thomas v. Union of India (2000) 6 SCC 224: 2000 SCC (Cri) 1056.] Nor can a person claim any right arising out of his own wrongdoing (jus ex injuria non oritur).
8.3 In the case of Jainendra Singh Vs. State of U.P. reported in 2012(3) SLJ 289, this Court summarised the principles to be considered in a case where the appointment is obtained by misrepresentation and/or suppression of facts by candidates/appointees as under:
"(i) Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such Page 10 of 17 O.A.1346/2018 fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer.
(ii) Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if find not desirable to appoint a person to a disciplined force can it be said to be unwarranted.
(iii) When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry.
(iv) A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services.
(v) The purpose of calling for information regarding involvement in any criminal case or detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have clear bearing on the character and antecedents of the candidate in relation to his continuity in service.
(vi) The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service.
(vii) The standard expected of a person intended to serve in uniformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted.
(viii) An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, conviction or detention, even if ultimately he was acquitted of the said case, inasmuch as such a situation would make a person undesirable or unsuitable for the post.
(ix) An employee in the uniformed service pre-supposes a higher level of integrity as such a person is expected to uphold the law and on the contrary such a service born in deceit and subterfuge cannot be tolerated.Page 11 of 17 O.A.1346/2018
(x) The authorities entrusted with the responsibility of appointing Constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a Constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of Constable."
8.4 In the case of Daya Shankar Yadav Vs. Union of India (2010) 14 SCC 103, this Court had an occasion to consider the purpose of seeking the information with respect to antecedents. It is observed and held that the purpose of seeking the information with respect to antecedents is to ascertain the character and antecedents of the candidate so as to assess his suitability for the post. It is further observed that when an employee or a prospective employee declares in a verification form, answers to the queries relating to character and antecedents, the verification thereof can lead to any of the following consequences:
"(a) If the declarant has answered the questions in the affirmative and furnished of doubt for want of evidence), the employer may refuse to offer him employment (or if already employed on probation, discharge him from service), if he is found to be unfit having regard to the nature and gravity of the offence/crime in which he was involved.
(b) On the other hand, if the employer finds that the criminal case disclosed by the declarant related to offences which were technical, or of a nature that would not affect the declarant's fitness for employment, or where the declarant had been honourably acquitted and exonerated, the employer may ignore the fact that the declarant had been prosecuted in a criminal case and proceed to appoint him or continue him in employment.
(c) Where the declarant has answered the questions in the negative and on verification it is found that the answers were false, the employer may refuse to employ the declarant (or discharge him, if already employed), even if the declarant had been cleared of the charges or is acquitted. This is because when there is suppression or non-disclosure of material information bearing on his character, that itself becomes a reason for not employing the declarant.
(d) Where the attestation form or verification form does not contain proper or adequate queries requiring the declarant to disclose his involvement in any criminal proceedings, or where the candidate was unaware of initiation of criminal proceedings when he gave the declarations in the verification roll/attestation form, then Page 12 of 17 O.A.1346/2018 the candidate cannot be found fault with, for not furnishing the relevant information. But if the employer by other means (say police verification or complaints, etc.) learns about the involvement of the declarant, the employer can have recourse to courses (a) or (b) above." Thereafter, it is observed and held that an employee can be discharged from service or a prospective employee may be refused employment on the ground of ........suppression of material information or making false statement in reply to queries relating to prosecution or conviction for a criminal offence (even if he was ultimately acquitted in the criminal case).
8.5 In the case of State of M.P. Vs. Abhijit Singh Pawar reported in (2018) 18 SCC 733, Hon'ble Apex Court held that when the employee participated in the selection process, he tendered an affidavit disclosing the pending criminal case against him. The affidavit was filed on 22.12.2012. According to the disclosure, a case registered in the year 2006 was pending on the date when the affidavit was tendered. However, within four days of filing such an affidavit, a compromise was entered into between the original complainant and the employee and an application for compounding the offence was filed under Section 320 Cr.P.C. The employee came to be discharged in view of the deed of compromise. That thereafter the employee was selected in the examination and was called for medical examination. However, around the same time, his character verification was also undertaken and after due consideration of the character verification report, his candidature was rejected. The employee filed a writ petition before the High Court challenging rejection of his candidature. The learned single Judge of the High Court of Madhya Pradesh allowed the said writ petition. The judgment and order passed by the learned single Judge directing the State to appoint the employee came to be confirmed by the Division Bench which led to appeal before this Court. After considering catena of decisions on the point including the decision of this Court in the case of Avtar Singh (supra), this Court upheld the order of the State rejecting the candidature of the employee by observing that as held in Avtar Singh (supra), even in cases where a truthful disclosure about a concluded case was made, the employer would still have a right to consider antecedents of the candidate and could not be compelled to appoint such candidate. After reproducing and/or re- considering para 38.5 of the decision in the case of Avtar Singh (supra), in paragraph 13, this Court observed and held as under:
13. In Avtar Singh (supra), though this Court was principally concerned with the question as to non-
disclosure or wrong disclosure of information, it was observed in para 38.5 that even in cases where a Page 13 of 17 O.A.1346/2018 truthful disclosure about a concluded case was made, the employer would still have a right to consider antecedents of the candidate and could not be compelled to appoint such candidate.
In the said decision, this Court also considered the conduct on the part of the employee in getting discharge on the basis of the compromise which was obtained within a period of four days of filing the affidavit/disclosure. In paragraph 14, it is observed and held as under:
14. In the present case, as on the date when the respondent had applied, a criminal case was pending against him. Compromise was entered into only after an affidavit disclosing such pendency was filed. On the issue of compounding of offences and the effect of acquittal under Section 320(8) of CrPC, the law declared by this Court in Mehar Singh (2013) 7 SCC 685, specially in paras 34 and 35 completely concludes the issue. Even after the disclosure is made by a candidate, the employer would be well within his rights to consider the antecedents and the suitability of the candidate. While so considering, the employer can certainly take into account the job profile for which the selection is undertaken, the severity of the charges levelled against the candidate and whether the acquittal in question was an honourable acquittal or was merely on the ground of benefit of doubt or as a result of composition.
9. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, the impugned order passed by the Division Bench dismissing the appeal and confirming the order passed by the learned single Judge quashing and setting aside the order of termination terminating the services of the employee on the ground of non-disclosure/suppression of material fact and filing a false declaration and directing the appellants to reinstate the respondent-employee is unsustainable.
10. Apart from the fact that at the time when the respondent applied in the month of October/November, 2013 though he was already convicted by the competent court and was given the benefit under Section 3 of the Act 1958 only, he did not disclose his conviction, but even at the time when he filed a declaration on 14.04.2015 he filed a false declaration that neither any criminal case is pending against him nor he has been convicted by any court of law and relying upon such a declaration the appellants gave him appointment. Only on police verification/receipt of the antecedent's report from the Superintendent of Police, Sawai Madhopur, the appellants came to know about the conviction of the respondent.Page 14 of 17 O.A.1346/2018
Therefore, the appellants were absolutely justified in terminating the services of the respondent.
11. Even the conduct on the part of the respondent to obtain the order subsequently from the learned Sessions Court in an appeal and getting the benefit of Section 12 of the Act 1958 deserves consideration. As observed hereinabove, the judgment and order of conviction by the learned trial Court was passed as far back as on 5.8.2013. For two years, the respondent did not file any appeal before the learned Sessions Court. After a period of approximately two years and after he obtained the appointment on the basis of the false declaration that neither any criminal case is pending against him nor he has been convicted by any court of law and having realised that his conviction and the benefit granted under Section 3 of the Act 1958 by the learned trial Court only will come in his way, subsequently after a period of two years he filed an appeal before the learned Sessions Court on 11.08.29015 and the appeal came to be disposed of within a period of one month, i.e., on 9.9.2015 and the learned Sessions Court granted the benefit of Section 12 of the Act 1958. From the judgment and order passed by the learned Sessions Court, it appears that the respondent only prayed for giving the benefit of Section 12 of the Act 1958 and nothing was contended by him with regard to conviction and order of sentence. Therefore, with a view to get out of the conviction and the benefit of Section 3 of the Act 1958 only and having realised that his conviction may come in his way, he preferred an appeal after a period of two years and obtained the benefit of Section 12 of the Act 1958 which provides that a person found guilty of an offence and dealt with under the provisions of section 3 or section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law.
Even otherwise, subsequently getting the benefit of Section 12 of the Act 1958 shall not be helpful to the respondent inasmuch as the question is about filing a false declaration on 14.04.2015 that neither any criminal case is pending against him nor he has been convicted by any court of law, which was much prior to the order passed by the learned Sessions Court granting the benefit of Section 12 of the Act 1958. As observed hereinabove, even in case of subsequent acquittal, the employee once made a false declaration and/or suppressed the material fact of pending criminal case shall not be entitled to an appointment as a matter of right.
12. The issue/question may be considered from another angle, from the employer's point of view. The question is not about whether an employee was involved in a dispute of trivial nature and whether he has been subsequently acquitted or not. The question is about the credibility and/or trustworthiness of such an employee who at the initial stage Page 15 of 17 O.A.1346/2018 of the employment, i.e., while submitting the declaration/verification and/or applying for a post made false declaration and/or not disclosing and/or suppressing material fact of having involved in a criminal case. If the correct facts would have been disclosed, the employer might not have appointed him. Then the question is of TRUST. Therefore, in such a situation, where the employer feels that an employee who at the initial stage itself has made a false statement and/or not disclosed the material facts and/or suppressed the material facts and therefore he cannot be continued in service because such an employee cannot be relied upon even in future, the employer cannot be forced to continue such an employee. The choice/option whether to continue or not to continue such an employee always must be given to the employer. At the cost of repetition, it is observed and as observed hereinabove in catena of decision such an employee cannot claim the appointment and/or continue to be in service as a matter of right.
13. In view of the afore-stated facts and circumstances of the case, both, the learned Division Bench as well as the learned Single Judge have clearly erred in quashing and setting aside the order of termination terminating the services of the respondent on the ground of having obtained an appointment by suppressing material fact and filing a false declaration. The order of reinstatement is wholly untenable and unjustified.
14. In view of the above and for the reasons stated above, the present appeals succeed. The impugned judgment and order passed by the Division Bench, as well as the order passed by the learned Single Judge quashing and setting aside the order of termination are hereby quashed and set aside. Consequently, the writ petition filed by the respondent-employee stands dismissed and the order of termination stands restored. However, in the facts and circumstances of the case, there shall be no order as to costs."
11. In this matter, it is evident that applicant has suppressed the fact that criminal case was initiated against him and he faced trial. Thereafter, he was acquitted whereas in the attestation form, it was mandatory to give details of criminal case, if any as is clear from the attestation form annexed as C.A.-2. If the ratio laid down in Rajasthan Rajya Vidyut Prasaran Nigam Ltd. Vs. Anil Kanwariya (supra) are taken into consideration, it is clear that if material has been suppressed by the candidate, the authority has enough competence to take decision for cancelling the Page 16 of 17 O.A.1346/2018 candidature. So far as the case law relied upon by the applicant In Mooni Vs. State of U.P. (supra) is concerned, in that case, applicant had disclosed the fact of criminal case. Thus, ratio laid down in Mooni (supra) case cannot be applied to the present case. Applicant was acquitted from the criminal case much before the selection but applicant did not disclose this fact in the attestation form and suppressed the material fact and after police verification report, when the department came to know about this fact that Criminal case was lodged against the applicant, issued show cause notice to the applicant and cancelled his appointment on the ground of suppression of material fact. Therefore, the court is of the view that applicant is not entitled for any relief and O.A. deserves to be dismissed..
12. Accordingly, O.A. is dismissed.
13. No order as to costs.
(Mohan Pyare) ( Justice OM Prakash VII)
Member (A) Member (J)
HLS/-
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