Rajasthan High Court - Jaipur
Sunil Kumar vs U O I (Home Affairs Dep)Ors on 3 January, 2012
Author: Arun Mishra
Bench: Arun Mishra
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR
J U D G M E N T
1.DB Civil Special Appeal (W) No.2593/11
(Sunil Kumar Vs. UOI & Ors.)
2.DB Civil Special Appeal (W) No.2594/11
(Rajveer Vs. UOI & Ors.)
Date of Judgment: 03/01/2012
P R E S E N T
HON'BLE THE CHIEF JUSTICE MR.ARUN MISHRA
HON'BLE MR.JUSTICE NARENDRA KUMAR JAIN-I
Mr. S.P. Sharma, Sr. Adv. with Mr. Sandeep Singh Shekhawat, for appellants.
Mr.S.S. Raghav, for respondents.
Issue notice to respondents of application u/s.5 of the Limitation Act.
Shri S.S. Raghav accepts notice on behalf of respondents.
For the reasons stated in the application filed u/s.5 of the Limitation Act duly supported by affidavit, the delay in filing the appeals is condoned. Applications stands disposed of.
Heard on the question of admission.
The intra-court appeals have been preferred questioning the legality of the order dated 16.9.2011 passed by the Single Bench in CWP-12527/11 and 12529/11 filed by appellants-Sunil Kumar and Rajveer respectively. The appellants preferred writ petitions aggrieved by the order dated 23.5.2011 passed by the Senior Commandant, Central Industrial Security Force, Bhilai, Ministry of Home on the ground of suppression of material information as to involvement in criminal case in the application form which was filled staking claim against the post of Constable/Driver.
In the case of appellant Sunil Kumar, he suppressed the factum of involvement in criminal case No.203/02 which was registered under Sections 147, 149, 342, 365, 379, 377, 323 IPC at Police Station Singhana in which he was chargesheeted. He was acquitted for commission of offence under Sections 147, 365/149 IPC for lack of sufficient evidence. However, he entered into compromise for commission of offence under Sections 323, 342, 379 IPC and was thus acquitted vide judgment dated 23.12.2010. However, he has suppressed the factum of pendency of criminal case while submitting application form on 16.7.2010. He also suppressed the involvement in criminal case while submitting form for medical test on 21.2.2011. While verifying his character, it was found that he was involved in aforesaid criminal case which he has suppressed. Thus, his appointment as Constable/Driver has been cancelled.
In the case of appellant Rajveer, he had filled the application form on 15.7.2010. He again filled the form on 23.2.2011 for the purpose of medical examination. In both the forms, he has suppressed his involvement in the criminal case No.85/10 registered under Sections 323, 341/34 IPC at Police Station Pilani. In the said criminal case, he was convicted and released on probation by the Judicial Magistrate, Pilani vide judgment dated 26.11.2010. On account of suppression of this material fact in the application form, his appointment was also cancelled.
The orders of cancellation of appointment were questioned before the Single Bench by filing the writ petitions. The Single Bench has dismissed the writ petitions vide common order dated 16.9.2011. Hence, the appellants are before us.
Shri S.P. Sharma, learned senior counsel appearing on behalf of the appellants, has submitted that it was a case where suppression could not be said to be material one. Ultimately, appellant Sunil Kumar has been acquitted for commission of offence under Sections 147, 365/149 IPC for lack of sufficient evidence and was acquitted for commission of offence under Sections 323, 342, 379 IPC on the basis of compromise. Learned senior counsel has also submitted that appellant Rajveer has been convicted u/s. 323, 341/34 IPC and released on probation. Thus, relying upon the decision of the Supreme Court in Ram Kumar Vs. State of U.P. & Ors., 2011 STPL(Web) 713 SC, he has submitted that cancellation of appointment was illegal. He has also pressed into service the decisions of the Apex Court in T.S. Vasudavan Nair Vs. Director of Vikram Sarabhai Space Centre & Ors., 1988 (Supp) SCC 795, Commissioner of Police & Ors. Vs. Sandeep Kumar, (2011) 4 SCC 644, State of Haryana & Ors. Vs. Dinesh Kumar, (2008) 3 SCC 222 and Single Bench decision of this court in Yogendra Kumar Sharma Vs. State & Ors., 2010(3) WLC (Raj.) 675.
The facts of the case of appellant Rajveer indicate that when he filled the application form, criminal case was pending against him. He filled the form twice, once at the time of filling application for recruitment and another when he filled the form at the time of medical examination. But, he has suppressed this material information on both occasions on 15.7.2010 and 23.2.2011 respectively. He has been found guilty of commission of offence under Sections 323, 341 IPC. He admitted the guilt in the court as is apparent from the order of the criminal case passed on 26.11.2010. He has been released on probation. The appellant was well aware of the factum of criminal case against him. But, he deliberately suppressed it. That by itself has rendered him unfit for seeking employment in police. It was not a case of acquittal having been taken place before filling the application form.
Coming to the facts of appellant Sunil Kumar, suppression was made twice once on 16.7.2010 while submitting the application form and subsequently on 21.2.2011 while submitting form for medical examination after selection. Thus, when involvement was in a serious case under Sections 147, 149, 342, 365, 323, 379 IPC, it was necessary for the appellant to disclose the aforesaid fact. He was well aware of criminal case pending against him on the date of submitting the application form on 16.7.2010. Though he was acquitted vide judgment dated 23.12.2010 under Sections 147, 365/149 IPC. However, he has entered into compromise for commission of offence under Sections 323, 342, 379 IPC and was thus acquitted under said Sections. His involvement was in a serious case which ought to have been disclosed. Considering the facts of the aforesaid case and nature of suppression, decision of Kendriya Vidyalaya Sangathan & Ors. Vs. Ram Ratan Yadav (supra) is fully attracted. There is no clear acquittal. Thus, we find that no relief could have been granted to appellant Sunil Kumar.
In Kendriya Vidyalaya Sangathan & Ors. Vs. Ram Ratan Yadav, (2003) 3 SCC 437, respondent Ram Ratan Yadav was selected for the post of Physical Education Teacher in Kendriya Vidyalaya. He has suppressed the information as to the criminal case in column No.12 and 13 of the attestation form. He was involved in a criminal case registered under Sections 323, 341, 294, 506B read with Section 34 IPC which was pending against him on the date of filling the attestation form. Similar is the case here. The appellants filled the form initially on 15.7.2010. On that date, criminal case was pending against them. They suppressed the information deliberately. When they again filled the form for medical check-up in February, 2011, they again suppressed this material information. The Apex Court in Kendriya Vidyalaya Sangathan & Ors. Vs. Ram Ratan Yadav (supra) has considered the fact of such suppression. Paras 11 and 12 of the said decision are quoted below:-
11. It is not in dispute that a criminal case registered under Sections 323, 341, 294, 506-B read with Section 34 IPC was pending on the date when the respondent filled the attestation form. Hence, the information given by the respondent as against column nos. 12 and 13 as "No" is plainly suppression of material information and it is also a false statement. Admittedly, the respondent is holder of B.A., B.Ed. and M.Ed. degrees. Assuming even his medium of instruction was Hindi throughout, no prudent man can accept that he did not study English language at all at any stage of his education. It is also not the case of the respondent that he did not study English at all. If he could understand column nos. 1-11 correctly in the same attestation form, it is difficult to accept his version that he could not correctly understand the contents of column nos. 12 and 13. Even otherwise, if he could not correctly understand certain English words, in the ordinary course he could have certainly taken help of somebody. This being the position, the Tribunal was right in rejecting the contention of the respondent and the High Court committed a manifest error in accepting the contention that because the medium of instruction of respondent was Hindi, he could not understand the contents of column nos. 12 and 13. It is not the case that column nos. 12 and 13 are left blank. The respondent could not have said "no" as against column nos. 12 and 13 without understanding the contents. Subsequent withdrawal of criminal case registered against the respondent or the nature of offences, in our opinion, were not material. The requirement of filling column nos. 12 and 13 of the attestation form was for the purpose of verification of character and antecedents of the respondent as on the date of filling and attestation of the form. Suppression of material information and making a false statement has a clear bearing on the character and antecedents of the respondent in relation to his continuance in service.
12. The object of requiring information in columns 12 and 13 of the attestation form and certification thereafter by the candidate was to ascertain and verify the character and antecedents to judge his suitability to continue in service. A candidate having suppressed material information and/or giving false information cannot claim right to continue in service. The employer having regard to the nature of the employment and all other aspects had discretion to terminate his services, which is made expressly clear in para 9 of the offer of appointment. The purpose of seeking information as per columns 12 and 13 was not to find out either the nature or gravity of the offence or the result of a criminal case ultimately. The information in the said columns was sought with a view to judge the character and antecedents of the respondent to continue in service or not. The High Court, in our view, has failed to see this aspect of the matter. It went wrong in saying that the criminal case had been subsequently withdrawn and that the offences, in which the respondent was alleged to have been involved, were also not of serious nature. In the present case the respondent was to serve as a Physical Education Teacher in Kendriya Vidyalaya. The character, conduct and antecedent of a teacher will have some impact on the minds of the students of impressionable age. The appellants having considered all the aspects passed the order of dismissal of the respondent from service. The Tribunal after due consideration rightly recorded a finding of fact in upholding the order of dismissal passed by the appellants. The High Court was clearly in error in upsetting the order of the Tribunal. The High Court was again not right in taking note of the withdrawal of the case by the State Government and that the case was not of a serious nature to set aside the order of the Tribunal on that ground as well. The respondent accepted the offer of appointment subject to the terms and conditions mentioned therein with his eyes wide open. Para 9 of the said memorandum extracted above in clear terms kept the respondent informed that the suppression of any information may lead to dismissal from service. In the attestation form, the respondent has certified that the information given by him is correct and complete to the best of his knowledge and belief; if he could not understand the contents of column nos. 12 and 13, he could not certify so. Having certified that the information given by him is correct and complete, his version cannot be accepted. The order of termination of services clearly shows that there has been due consideration of various aspects. In this view, the argument of the learned counsel for the respondent that as per para 9 of the memorandum, the termination of service was not automatic, cannot be accepted.
In view of the aforesaid dictum, it is apparent that suppression in attestation form may incur disqualification in a given set of facts. The facts are similar in the instant cases. Hence, the decision of the Apex Court in Kendriya Vidyalaya Sangathan & Ors. Vs. Ram Ratan Yadav (supra) is clearly attracted.
Reliance has been placed by Shri S.P. Sharma, learned senior counsel, on decision of the Apex Court in Ram Kumar Vs. State of U.P. & Ors. (supra) in which involvement of the employee was for commission of offence under Sections 323, 324, 504 IPC and he stood acquitted. The Apex Court has considered the facts of the case and held as under:-
8. In the facts of the present case, we find that though Criminal Case No.275 of 2001 under Sections 324/323/504 IPC had been registered against the appellant at Jaswant Nagar Police Station, District Etawah, admittedly the appellant had been acquitted by order dated 18.7.2002 by the Additional Chief Judicial Magistrate, Etawah. On a reading of the order dated 18.7.2002 of the Additional Chief Judicial Magistrate would show that the sole witness examined before the Court, PW-1 Mr. Akhilesh Kumar, had deposed before the Court that on 02.12.2000 at 4.00 p.m. children were quarelling and at that time the appellant, Shailendra and Ajay Kumar amongst other neighbours had reached there and someone from the crowd hurled abuses and in the scuffle Akhilesh Kumar got injured when he fell and his head hit a brick platform and that he was not beaten by the accused persons by any sharp weapon. In the absence of any other witness against the appellant, the Additional Chief Judicial Magistrate acquitted the appellant of the charges under Sections 323/34/504 IPC. On these facts, it was not at all possible for the appointing authority to take a view that the appellant was not suitable for appointment to the post of a police constable.
The facts in the instant case are totally different from that of Ram Kumar (supra). There was no acquittal in the instant cases as on date of submitting application. On the other hand, there is conviction in case of Rajveer. Case against Sunil Kumar involved serious charges. Moreover, the fact ought to have been disclosed regarding pending criminal case at the time of submitting the forms. Thus, in our opinion, the decision of the Apex Court in Ram Kumar Vs. State of U.P. & Ors. (supra) is not attracted in the facts of the instant case.
Shri S.P. Sharma, learned senior counsel has also relied upon the decision of the Apex Court in State of Haryana & Ors. Vs. Dinesh Kumar (supra) in which also there was acquittal. The incumbent had appeared before the Magistrate without being taken into formal custody and was granted bail. The Apex Court has held that the same did not amount to arrest. In view of acquittal which was made in the facts of the case, the Apex Court while considering the concept of arrest and custody and mandatory appearance of the accused for obtaining bail, decided the case in favour of the employee. The facts of the instant case are different. There is conviction and deliberate material suppression.
Reliance has also been placed on the decision of the Apex Court in T.S. Vasudavan Nair Vs. Director of Vikram Sarabhai Space Centre & Ors. (supra). The said case was of raising slogans during the time of emergency. In the aforesaid facts, non-disclosure was not found to be disqualification. The facts of the instant case are totally different hence ratio of the aforesaid decision is not at all attracted in the present matter.
Reliance has also been placed by the learned senior counsel on decision in Yogendra Kumar Sharma Vs. State & Ors. (supra) by the Single Bench of this Court in which there was acquittal. Counsel was unable to state whether the appeal was pending against the decision in this Court. However, in view of decisions of the Apex Court it is apparent that the appellant has no case.
The Single Bench has rightly relied upon the decision of the Apex Court in A.P. Public Service Commission Vs. Koneti Venkateshwarulu & Ors., (2005) 7 SCC 177 in which the Apex Court has opined that if person indulges in suppressio veri and suggestio falsi then he does not deserve public employment. The Apex Court has laid down as under:-
7. We are unable to accept the contention of the learned counsel for the First Respondent. As to the purpose for which the information is called, the employer is the ultimate judge. It is not open to the candidate to sit in judgment about the relevance of the information called for and decide to supply it or not. There is no doubt that the application called for full employment particulars vide Column 11. Similarly, Annexure III contained an express declaration of not working in any public or private employment. We are also unable to accept the contention that it was inadvertence which led the First Respondent to leave the particulars in Column 11 blank and make the declaration of non-employment in Annexure III to the application. The application was filled on 24.7.1999, the examination was held on 24.10.1999, and the interview call was given on 31.1.2000. At no point of time did the First Respondent inform the appellant commission that there was a bonafide mistake by him in filling up the application form, or that there was inadvertence on his part in doing so. It is only when the appellant commission discovered by itself that there was suppresso veri and suggestio falsi on the part of the First Respondent in the application that the respondent came forward with an excuse that it was due to inadvertence. That there has been suppresso veri and suggestio falsi is incontrovertible. The explanation that it was irrelevant or emanated from inadvertence, is unacceptable. In our view, the appellant was justified in relying upon the ratio of Kendriya Vidyalaya Sangathan (supra) and contending that a person who indulges in such suppresso veri and suggestio falsi and obtains employment by false pretence does not deserve any public employment. We completely endorse this view.
The decision in R. Radhakrishnan Vs. Director General of Police & Ors. (2008) 1 SCC 660 has also been relied upon by the Single Bench as under:-
11. The question came up for consideration before this Court in Delhi Administration through its Chief Secretary and Others v. Sushil Kumar [(1996) 11 SCC 605] wherein it was categorically held:
3. ....The Tribunal in the impugned order allowed the application on the ground that since the respondent had been discharged and/or acquitted of the offence punishable under Section 304 IPC, under Section 324 read with Section 34 IPC and under Section 324 IPC, he cannot be denied the right of appointment to the post under the State. The question is whether the view taken by the Tribunal is correct in law? It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted.
12. Mr. Prabhakar has relied upon a decision of this Court in T.S. Vasudavan Nair v. Director of Vikram Sarabhai Space Centre and Others [1988 Supp SCC 795]. The said decision has been rendered, as would be evident from the judgment itself, on special facts and circumstances of the said case and cannot be treated to be a binding precedent.
13.In the instant case, indisputably, the appellant had suppressed a material fact. In a case of this nature, we are of the opinion that question of exercising an equitable jurisdiction in his favour would not arise.
In view of the aforesaid discussion, we find the order passed by Single Bench to be in accordance with law. We find no infirmity in it. The appeals being devoid of merit deserve to be dismissed and are hereby dismissed. Stay applications are also dismissed.
(NARENDRA KUMAR JAIN-I), J. (ARUN MISHRA), CJ GS
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Govind Sharma, PA