Allahabad High Court
Babu Lal Meena vs The Union Of India And 4 Others on 2 January, 2023
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 29 Case :- SPECIAL APPEAL DEFECTIVE No. - 541 of 2019 Appellant :- Babu Lal Meena Respondent :- The Union Of India And 4 Others Counsel for Appellant :- Vijay Gautam,Krishna Ji Shukla Counsel for Respondent :- Rajnish Kumar Rai,Gyan Prakash Singh Hon'ble Manoj Misra,J.
Hon'ble Vikas Budhwar,J.
We have heard Sri Vinod Kumar Mishra for the appellant; Sri Gyan Prakash Singh for the respondents and have perused the record.
In Re: Delay Condonation Application No. NIL of 2019 There is a reported delay of 76 days in filing the appeal, which is explained in the affidavit.
We find the explanation offered good and sufficient to condone the delay. The delay condonation application is allowed. The delay in filing the appeal is condoned.
Office shall assign a regular number to the appeal.
Order on appeal This intra court appeal is against the judgment and order of the learned Single Judge dated 21.01.2019 whereby Writ A No. 21111 of 2016 filed by the appellant against the order of discharge from service dated June 19, 2015 has been dismissed.
The relevant facts as regards which there exists no dispute inter se the parties are that the appellant was placed in a list of candidates selected for appointment on the post of Constable; that in his attestation form, the appellant did not make a disclosure regarding Case No. 305 of 2006 instituted against him and others at P.S. Sadar, District Dausa, under Sections 147/149/304 I.P.C; that while the appellant was undergoing training, this non disclosure was treated as fraudulent suppression, which led to passing the discharge order dated June 19, 2015. This order of discharge reads as under:-
"No. E/227/D.R. Const/2014-Pt-II June 19, 2015 Shri Babu Lal Meena S/o Ram Kishan Meena Roll No. 4143001198. Sub: Discharge Order
Your Character & Antecedent verification was sought from District Magistrate/Dousa and it is informed by Addl. DM/Dousa that a police case No. 305/06 U/S 147/149/304 IPC was instituted against you under Sadar Dousa Police Station. But you have suppressed the fact and did not mention in the Attestation Form submitted by you regarding above case. Thus, you have violated the provisions contained in para No. 3 of the "Attestation Form" by suppressing the factual information. The suppression of above fact renders you unfit for Govt. Service.
In view of the above, as per the provision contained in para No. 3 of Attestation Form and under Rule No. 52.2 & 67.2 of RPF Rule 1987, CSC has discharged you with immediate effect.
You should handover all Govt. Items supplied to you.
This is for information.
Addl. Chief Security Commissioner N.F. Railway Maligaon."
The appellant challenged the order of discharge, inter alia, on the following grounds:-
(i) that the order was passed in violation of principles of natural justice as no opportunity of hearing was given to the petitioner before passing the said order;
(ii) that the criminal case recited in the order of discharge dated June 19, 2015 had already ended in an acquittal of the appellant vide order dated 26.05.2014 therefore, even before the attestation form was filled, that is on 21.06.2014, there was no case pending against the appellant hence its disclosure was not mandatory;
(iii) that while passing the order of discharge, the authority concerned did not apply its mind to the law laid down by the Apex Court in Avtar Singh vs. Union of India and others, 2016 (8) SCC 471.
The learned single Judge dismissed the writ petition on finding that suppression of the information with regard to institution of criminal case against the petitioner is not disputed therefore, even if no opportunity of hearing was provided to the writ petitioner, no prejudice was caused to him. The court also noticed that the appellant was in a disciplined force wherein suppression of material fact may be a reason for the employer to lose trust in the employee as such the order impugned calls for no interference.
Assailing the order of the learned Single Judge, the learned counsel for the appellant submitted that the criminal case against the writ petitioner (the appellant herein) was of the period while the appellant was a minor, as a result whereof, the appellant was declared a juvenile and the enquiry of the case was held by the Juvenile Justice Board which ultimately resulted in his acquittal. Section 19 of the Juvenile Justice (Care and Protection of Children) Act, 2000, as was applicable on the date when the attestation form was filled, specifically provided that a juvenile who has committed an offence and has been dealt with under the provisions of the Act shall not suffer disqualification, if any, attaching to a conviction of an offence under such law. It has been submitted that if a conviction cannot result in disqualification, how could mere prosecution, which results in acquittal, be relevant as to make its disclosure compulsory. Further, sub-section (2) of section 19 provides for removal of the records relating to the proceedings, which means that the juvenile has an inherent right to let his past be forgotten therefore, he could lawfully suppress information in respect of any past proceeding initiated/instituted against him. In support of his submission, the learned counsel for the appellant has placed reliance on a decision of the Apex Court dated March 02, 2022 in Civil Appeal No. 1964 of 2022, arising out of SLP (Civil) No(s). 871 of 2017 (Umesh Chandra Yadav v. The Inspector General and Chief Security Commissioner, R.P.F., Nothern Railway, New Delhi and others. In addition to the above decision, the learned counsel for the appellant has placed reliance on a Division Bench decision of this Court in Special Appeal No. 1136 of 2018, decided on 10.04.2020 (Shivam Maurya v. State of U.P. and others) reported in 2020 (5) ADJ 6. By placing reliance on the aforesaid decisions, the learned counsel for the appellant submitted that as the case allegedly suppressed related to a period during which the appellant was a minor and the said case would not have incurred any kind of disqualification for the writ petitioner, suppressing information with regard thereto, more so, when the appellant was acquitted therein, could not have entailed a discharge from service.
Per contra, the learned counsel for the respondents submitted that at the time of filling the attestation form the petitioner was an adult, he was therefore under an obligation to make a truthful disclosure as desired by the form; and since such disclosure was not made, the decision taken by the authority cannot be faulted, particularly, when the appellant was in a disciplined force where character of the incumbent is of utmost importance and suppression of such an information would result in a trust deficit qua the employee. In support of the above submission, the learned counsel for the respondent placed reliance on a Division Bench decision of this Court in Special Appeal No. 153 of 2019 (Tej Bahadur Yadav v. Union of India and others, decided on 22.09.2021.
We have considered the rival submissions and have perused the record carefully.
It is not in dispute that the appellant had faced enquiry by the Juvenile Justice Board with reference to Case No. 305 of 2006 and in respect whereof there was no disclosure in the attestation form filled on 21.06.2014. There is also no dispute that in the said enquiry, the Juvenile Justice Board, Dousa (State of Rajasthan) found the appellant not guilty and had acquitted the appellant vide order dated 26.05.2015. Once it is clear from the record that the proceedings initiated against the appellant were in respect of commission of an offence while the appellant was a juvenile, the provisions of section 19 of the Juvenile Justice (Case and Protection of Children) Act, 2000, as were in force, would become applicable. Section 19 of the 2000 Act provides as follows:-
" 19. Removal of disqualification attaching to conviction.--
"1. Notwithstanding anything contained in any other law, a juvenile who has committed an offence and has been dealt with under the provisions of this Act shall not suffer disqualification, if any, attaching to a conviction of an offence under such law.
2. The Board shall make an order directing that the relevant records of such conviction shall be removed after the expiry of the period of appeal or a reasonable period as prescribed under the rules, as the case may be."
A perusal of the aforesaid provision would suggest that even an order of conviction cannot incur a disqualification, therefore, where there is acquittal, the position would be a lot more in favour of the juvenile. Sub-section (2) provides that relevant records of such conviction shall be removed after the expiry of the period of appeal or within a reasonable period as prescribed under the rules. There is nothing on record that any appeal was preferred against the order of acquittal of the appellant. In such circumstances, in normal course, as per the statutory provisions, the records would have to be weeded out. The purpose of inserting such a provision is to ensure that the past of the child does not haunt him in leading a scar free life after rehabilitation.
In the instant case, the appellant though was subjected to an enquiry on a criminal charge by the Juvenile Justice Board but the same resulted in his acquittal. In such circumstances, whether suppression of the information by the appellant was bona fide or mala fide had to be ascertained in the contextual facts of the case. It may be possible that the appellant did not deem it necessary to make such disclosure as his prosecution would not have incurred in any kind of disqualification by virtue of statutory provisions contained in 2000 Act. Even in Avtar Singh's case (supra), in paras 38.4, it is provided as follows:-
"38.4. In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted : -
38.4.1. In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
38.4.2. Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
38.4.3. If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee. "
A perusal of the paragraph 38.4.3 of the judgment in Avtar Singh's case (supra) would indicate that if acquittal has already been recorded in a case involving moral turpitude or an offence of henious/serious nature on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.
In the instance case, the appellant was a juvenile and paragraph 13 of the order of the Juvenile Justice Board would suggest that in the evidence led during the course of enquiry nothing had come on record to indicate the presence of the appellant at the spot to confirm his involvement in the crime. It could therefore be taken as a case of clean acquittal.
For all the reasons above, we are of the view that it is a fit case where the respondents must accord consideration to the peculiar facts of the case highlighted above and pass a fresh order in accordance with law bearing in mind that the appellant was a juvenile at the time when he was charged for commission of the offence. While passing fresh order it must also bear in mind the true import of the relevant provisions of the 2000 Act. Such order shall be passed after giving opportunity of hearing to the appellant within a period of three months from the date a certified copy of this order is served upon the competent officer concerned. Subject to above, the appeal is allowed. The judgment and order of the learned Single Judge dated 06.02.2019 is set aside. The order dated 19.06.2015 (Annexure 1 to the writ petition) is hereby quashed. As we have directed the respondent concerned to pass a fresh order in the light of observations above, consequential benefits, if any, shall be available to the appellant in terms of the order so passed, with liberty to the appellant to question the same by taking recourse to appropriate proceedings in case he is aggrieved therewith.
Before parting we deem it appropriate to put on record that though the order impugned in the writ petition was passed at Gauhati but since it arose out of selection process initiated and culminated in the district of Gorakhpur, which falls within the territorial jurisdiction of this Court, neither before the learned single Judge nor before us the learned counsel for the respondent raised any objection with regard to the territorial jurisdiction of this Court to entertain the writ petition.
Order Date :- 2.1.2023 Sunil Kr Tiwari