Allahabad High Court
Ver Pal Singh vs State Of U.P. & Others on 12 February, 2015
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved On: 03.02.2015
Delivered On: 12.02.2015
WRIT- A No. 33296 of 2009
Veer Pal Singh
Versus
State of U.P. & Others
====================
Court No. 59
Hon'ble Yashwant Varma, J.
The petitioner herein assails the validity of an order dated 17.08.2007. In terms of the said order the Appointing Authority of the petitioner, the respondent No. 3 herein, has cancelled the selection of the petitioner as Constable of the Provincial Armed Constabulary (P.A.C.). The sole ground for the said order being passed was the involvement of the petitioner in Case Crime No. 136 of 2004 under Sections 452, 323,504, 506 I.P.C. which resulted in the filing of a charge sheet against the petitioner on 10th August, 2004 and the non-disclosure of the said facts while making his application for consideration of the respondents.
Shorn of unnecessary details the salient facts necessary for deciding the present petition are as follows. The respondent No. 2 issued a notice for recruitment of Constables in the P.A.C. The petitioner submitted his application and subsequently succeeded in the selection process. Based upon his showing in the selection process, he was ultimately recruited on 28.8.2006. It appears that certain complaints were made against the petitioner with regard to the testimonials and declarations made by him upon which an internal inquiry was conducted and consequent to verification it was found that the declarations made by the petitioner with respect to his not being involved in any criminal case was incorrect. Accordingly, by the impugned order dated 17.08.2007, the respondent No. 3 anulled the selections of the petitioner.
A reading of the impugned order establishes that the papers submitted by the petitioner at the time of his selection were sent for scrutiny and ultimately P.S. Chhibramau, District Kannauj submitted a report dated 17.7.2007 informing the respondent No. 3 that a criminal case stood registered against the petitioner in which a charge-sheet has been submitted before the Court concerned on 10th August, 2004. The impugned order takes note of the declarations made by the petitioner in Clauses 3,7,9 and 15 of the application form and ultimately records that the petitioner had obtained the appointment by concealing material facts and by practicing misrepresentation before the respondents. The declarations made by the petitioner were to the effect that no criminal case has been ever registered against him nor is any criminal case against him pending trial before any Court. The petitioner further made a declaration that if in case any information tendered by him is found to be incorrect or if it is found that he has concealed facts, his selection would be liable to be cancelled without any notice to him.
Sri Hritudhwaj Shahi, who has appeared in support of this writ petition has submitted that although the facts of the pendency of the criminal case may not have been disclosed before the respondent No. 3, the services of the petitioner could not have been dispensed with without affording an opportunity of hearing to him. He submitted that the issue which the respondent No. 3 was obliged to address himself to was the suitability of the petitioner for appointment to the post in question with reference to the nature of suppression and the nature of the criminal case. He placed reliance upon an unreported decision of the Hon'ble Apex Court rendered in Civil Appeal No. 7106 of 2011, Ram Kumar Vs. State of U.P. And Others decided on 19.08.2011 to contend that mere suppression of facts was not sufficient to terminate the appointment of the petitioner and that the respondents were obliged to consider the question of suitability of the petitioner for appointment to the post in question. He submitted that the petitioner had been falsely implicated in the case and that in any view of the matter, the Magistrate's Court had ultimately acquitted the petitioner and other co-accused in the case in question by its judgment dated 27.08.2007. Sri Shahi has also relied upon an unreported judgment of a Single Judge of this Court rendered in Writ Petition No. 51295 of 2007, Rajiv Kumar Versus State of U.P. And Others decided on 9.9.2010 to buttress his submissions that before passing of the order an opportunity of hearing was liable to be granted to the petitioner.
Sri Shahi, lastly, submitted that in any view of the matter consequent to the petitioner being acquitted in the criminal case in question, the Authority may be directed to reconsider the case of the petitioner.
Learned Standing Counsel opposing the petition has submitted that the declarations made by the petitioner at the time of selection, were unequivocal and categorical. He submitted that the said declarations were made on affidavit/upon oath by the petitioner which was an act wholly unbecoming of one who aspired to be appointed as a Constable in the Police Force. The learned Standing Counsel further submitted that the declarations made by the petitioner, were made knowingly upon being fully aware that the same were incorrect. He submitted that the petitioner having deliberately concealed material facts was not entitled to any relief by this Court in its equitable jurisdiction.
Learned Standing Counsel, lastly, submitted that the subsequent acquittal of the petitioner can be of no avail inasmuch as the reason for the passing of the impugned order was not the involvement of the petitioner in a criminal case but primarily the false declaration made by him in order to obtain the employment.
Having heard learned counsel for the parties and having perused the record, it is apparent that the petitioner unequivocally made declarations to the effect that no criminal case has been registered against him and that no criminal cases were pending against him before any Court. The statements were made upon oath by the petitioner. It is not the case set up in the writ petition that the petitioner was not aware of the pendency of this case or that he had not been put to notice by the Court concerned upon the filing of the charge sheet before it. The unescapable conclusion which this Court is compelled to record, therefore, is that the petitioner being fully aware chose to conceal the facts of pendency of the case in question. What then would be the effect of such concealment is an issue which must now be addressed, of course, taking into consideration the judgments which Sri Shahi has relied upon.
Insofar as the judgment of the Single Judge of this Court in Rajiv Kumar (supra) is concerned, it needs to be recorded that a reading of the same discloses that the petitioner therein at the time of making the declaration did not know or have knowledge of the criminal case lodged against him. It is in the above background that the learned Single Judge records that after coming to know of the pendency of the said case the petitioner therein applied for bail which was granted and that he was ultimately acquitted by the Criminal Court in the said case. The learned Single Judge then was pleased to hold that the provisions of the Police Regulations mandate at least a minimal compliance with the basic principles of Natural Justice and since the petitioner therein had not been put to notice, quashed the order impugned therein while permitting the appointing Authority to pass fresh orders after affording an opportunity of hearing to the petitioner. This judgment is therefore clearly distinguishable on facts. Whether the minimal requirements of the principles of Natural Justice were liable to be followed in this case would of course, depend also on the issue of whether prejudice has been caused to the petitioner herein. However, on this aspect a little later.
Coming then to the judgment of the Apex Court relied upon by Sri Shahi, it must be noted that from the facts recorded by the Hon'ble Supreme Court of India, it emerges that the appellant before the Court was aware that a criminal case was pending against him and yet proceeded to make a similar declaration in the Affidavit to the extent that no criminal case was registered against him. However, on the date when the appointing Authority cancelled the selection of the appellant, he had already been acquitted by the Court of Magistrate. While the appellant therein had been acquitted on 18.7.2002 his selection stood cancelled by an order dated 8.8.2007. The judgment of the Apex Court pivoted upon the provisions of a Government Order dated 28.04.1958 which read as under:
"The rule regarding character of candidate for appointment under the State Government shall continue to be as follows:
The character of a candidate for direct appointment must be such as to render him suitable in all respects for employment in the service or post to which he is to be appointed. It would be duty of the appointing authority to satisfy itself on this point."
With reference to the said Government Order, Apex Court held as under:
"It will be clear from the aforesaid instructions issued by the Governor that the object of the verification of the character and antecedents of government servants before their first appointment is to ensure that the character of a government servant for a direct recruitment is such as to render him suitable in all respects for employment in the service or post to which he is to be appointed and it would be a duty of the appointing authority to satisfy itself on this point."
From the above narration of facts, it is apparent that the above judgment is not only distinguishable on facts but also turned primarily on the requirements of the Government Order aforementioned. The Government Order forming subject matter of consideration before the Apex Court did not address itself to the issue of concealment of material facts but was primarily aimed at consideration of the suitability of the selectee in all respects for employment. It was in the above background that the Hon'ble Supreme Court held that mere concealment of facts would not oblige the Appointing Authority to mechanically set aside the selection and that the appointing authority was obliged to consider the suitability of the candidate especially in light of the charges leveled against him and the fact that he stood acquitted.
More fundamentally, this Court finds that the Hon'ble Apex Court itself in a subsequent judgment has considered the issue of concealment of material facts threadbare after taking into consideration its earlier pronouncements including the judgment in Ram Kumar (supra). The Court refers to the judgment of the Apex Court in Jainendra Singh Vs. State of Uttar Pradesh And Others, (2012) 8 SCC 748. It is worthy to mention here that after laying down various broad propositions in this judgment the Bench of the Apex Court felt it necessary that the issue of relief to be granted in varied cases in which employees have suppressed material information may be referred for consideration to a Larger Bench of the Court for an authoritative pronouncement.
After noticing the various judgments rendered by the Apex Court on the issue including that in Ram Kumar (supra), the Court was pleased to lay down the following broad propositions:
"29. As noted by us, all the above decisions were rendered by a Division Bench of this Court consisting of two Judges and having bestowed out serious consideration to the issue, we consider that while dealing with such an issue, the Court will have to bear in mind the various cardinal principles before granting any relief to the aggrieved party, namely:
29.1. 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 fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer.
29.2. Verification of the character and antecedents is one of 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 finds it not desirable to appoint a person to a disciplined force can it be said to be unwarranted.
29.3. 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 estoppels against the employer while resorting to termination without holding any inquiry.
29.4. A candidate having suppressed material information and/or giving false information cannot claim rightto 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.
29.5. The purpose of calling for information regarding involvement in any criminal case or deletion 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 a clear bearing on the character and antecedents of the candidate in relation to his continuity in service.
29.6. The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service.
29.7. 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.
29.8. 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, inasmuch as such a situation would make a person undesirable or unsuitable for the post.
29.9. An employee in the uniformed service presupposes a higher level of integrity, as such a person is expected to uphold the law and on the contrary such a service born indeceit and subterfuge cannot be tolerated.
29.10. 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."
This Court is of the opinion that the cancellation of appointment/selection on account of suppression of material fact or deliberate misstatement is liable to be seriously viewed. A deliberate concealment or omission of vital information cannot clothe the selectee with equitable considerations. A deliberate misstatement or omission of vital information made knowingly cannot fault the decision taken by the appointing Authority to annul the selection/appointment. The suppression of material information clearly speaks about the character and the moral fibre of the selectee. Suppression of pendency of a criminal case, if it be a deliberate omission, would clearly justify the action of the employer in cancelling the selection. This aspect assumes additional importance in case the selectee/appointee is seeking entry to a uniformed and disciplined force. A member of a disciplined force is liable to be judged on a higher pedestal. Viewed in light of the above this Court is of the opinion that the respondent No. 3 was clearly justified in passing the impugned order.
The submission with regard to compliance with principles of natural justice need not detain us too long. The fact that the Petitioner was involved in the criminal case, had knowledge of the same, did not disclose the said fact is not disputed. Therefore even if it were assumed for the sake of argument that the principles of natural justice were liable to be followed, no prejudice has been caused to the Petitioner. Insofar as the issue of suitability is concerned, as has been noticed above, the same was specifically mandated to be considered in Ram Kumar. In the present recruitment exercise no such requirement was placed upon the authority. At least none could be pointed out by the learned counsel for the Petitioner.
A few words with regard to the judgment of acquittal rendered in favour of the petition may also not be out of place. A reading of the judgment rendered by the Magistrate on 27.08.2007 shows that the main prosecution witnesses had turned hostile and the accused including the petitioner were accordingly let off with the charge not being established against them beyond reasonable doubt. The judgment records that apart from the witnesses who had turned hostile, no other witnesses were produced by the prosecution.
This Court, therefore, finds that even the acquittal was not an ''honourable acquittal' but one which came to be made upon the prosecution failing to bring home the charge beyond reasonable doubt and the witnesses themselves turning hostile. In this connection, one may usefully refer to the judgment of the Apex Court in State of M.P. And Others Vs. Parvez Khan, Civil Appeal No. 10613 of 2013, decided on 1.12.2014. Considering an issue of refusal to accord appointment on compassionate ground in light of acquittal in a criminal case this is what the Apex Court described would meet the test of ''honourable acquittal'.
"25. The expression "honourable acquittal" was considered by this Court in S. Samuthiram [(2013) 1 SCC 598). In that case this Court was concerned with a situation where disciplinary proceedings were initiated against a police officer. Criminal case was pending against him under Section 509 IPC and under Section 4 of the Eve-Teasing Act. He was acquitted in that case because of the non-examination of key witnesses. There was a serious flaw in the conduct of the criminal case. Two material witnesses turned hostile. Referring to the judgment of this Court in RBI v. Bhopal Singh Panchal [(1994) 1 SCC 541] where in somewhat similar fact situation, this Court upheld a bank's action of refusing to reinstate an employee in service on the ground that in the criminal case he was acquitted by giving him benefit of doubt and, therefore, it was not an honourable acquittal, this Court held that the High Court was not justified in setting aside the punishment imposed in the departmental proceedings. This Court observed that the expressions "honourable acquittal", "acquitted of blame" and "fully exonerated" are unknown to the Criminal Procedure Code or the Penal Code. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression "honourably acquitted". This Court expressed that when the accused is acquitted after full consideration of the prosecution case and the prosecution miserably fails to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.
26. In light of the above, we are of the opinion that since the purpose of the departmental proceedings is to keep persons, who are guilty of serious misconduct or dereliction of duty or who are guilty of grave cases of moral turpitude, out of the department, if found necessary, because they pollute the department, surely the above principles will apply with more vigour at the point of entry of a person in the police department i.e. at the time of recruitment. If it is found by the Screening Committee that the person against whom a serious case involving moral turpitude is registered is discharged on technical grounds or is acquitted of the same charge but the acquittal is not honourable, the Screening Committee would be entitled to cancel his candidature. Stricter norms need to be applied while appointing persons in a disciplinary force because public interest is involved in it."
For all the aforesaid reasons, this Court records that the impugned order was validly made against the petitioner and commends no interference under Article 226 of the Constitution of India.
The writ petition is accordingly dismissed.
Order Date: 12.02.2015 Arun K. Singh (Yashwant Varma, J.)