Rajasthan High Court - Jaipur
Prayag Raj Gocher vs R R V P N Ltd &Anr; on 21 April, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No. 2718 / 2016
Prayag Raj Gocher
----Petitioner
Versus
Rajasthan Rajya Vidyut Prasaran Nigam Limited & another
----Respondents
_____________________________________________________ For Petitioner(s) : Mr. Dharmendra Jain For Respondent(s) : Mr. Ribhu Dutt _____________________________________________________ HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA / Order 21/04/2017 Instant petition has been preferred under Article 226 of the Constitution of India praying therein that the impugned order dated 24.08.2015 (Annexure-13), whereby appointment order in favour of the petitioner was withdrawn, be set aside.
A perusal of the impugned order reveals that the petitioner, in pursuance of the advertisement dated 28.09.2013, had applied for the post of Technical Helper (Electrician/SBA). After examination was conducted, the petitioner was selected and appointment order was issued in his favour. However, during Police verification, it came to the notice of the respondents that the petitioner in a case arising out of First Information Report No.86/2010 registered at Police Station Kishanganj, was tried for offences punishable under Sections 279 and 337 I.P.C. and under Sections 184, 134 (1), 187, 121, 146/196 of the Motor Vehicles Act.
Section 279 I.P.C. prescribe sentence for rash and negligent driving on a public way, whereas Section 337 I.P.C. is for causing hurt due to rash and negligent driving. The petitioner on 14.09.2012 by the (2 of 5) [CW-2718/2016] Criminal Court was released on probation for a period of one year and he was also asked to deposit cost of Rs.5000/-.
Considering the concealment of information regarding the pendency of criminal case and the out-come thereof, the respondents held that since the petitioner had made a false declaration, thus, he is not having unblemished character.
The relevant portion of the impugned order dated 24.08.2015 (Annexure-13) reads as under :-
"As such , it is clear that he has concealed the fact of criminal cases which were registered/pending against him and submitted a false declaration & affidavit. Hence, the character of Sh. Pryag Raj Gocher is not unblemished, so, appointment order in respect of him is hereby withdrawn."
Mr. Dharmendra Jain, learned counsel appearing for the petitioner, has relied upon the order dated 17.12.2016 passed by the Co-ordinate Bench in the case of Shobha Ram Meena Vs. Director (H.R.), Nuclear Power Corporation of India Limited & Others (S.B. Civil Writ Petition No.17564/2013), wherein it was held as under :-
"In the case of Kamal Singh Meena Vs. Union of India & Ors. (supra) this court has held that:-
15. This Court has comprehensively dealt with the issue of denial of public employment on the ground of pendency of criminal cases, more so where a selected candidate has been acquitted in a criminal case even subsequent to his selection.
Reference can be made to the Judgment in the case of Rai Sahab Vs. State of Rajasthan & Anr. [2013 (3) WLC (Raj.) 483]. Therein considering various Judgments of the Apex Court and this Court it was observed that in the present era of rampant unemployment depriving an individual from the valuable right of employment on unsubstantial grounds would be unjust and a welfare state as a model employer ought not to be allowed to circumvent the rights of a selected candidate by quibbling about aspects which do not go to the root of the matter- unless there has been an 8 egregious attempt at fraud and / or misrepresentation to obtain public employment and unless the lacunae found was ex-facie destructive of the suitability of a candidate. This is not so in the present case.
16. The caution set out in the Attestation Form stated that the furnishing of false information or suppression of any factual (3 of 5) [CW-2718/2016] information in the Attestation Form would be a disqualification likely (emphasis mine) to render the candidate unfit for employment under the Government. The Cambridge Advanced Learner's Dictionary 3 rd Edition defines the work "likely" to mean "probable : possible". The work "likely" is thus to be understood contra distinguished from the word "definitively" and "inevitably". The appointing authority thus had a discretion. Incorrect information as in the instant case quite trivial in nature in the context of the fact that no material misstatement (affecting suitability employ ability) had been made by the petitioner in his Attestation Form, was a matter which ought to have engaged the active attention of the Appointing Authority. The Appointing Authority could not without evaluation of the effect of, the nature of allegations, gravity of offences and the petitioner's acquittal about three year prior to the commencement of the recruitment process of Constable have mechanically concluded as it did, that the petitioner was unfit for employment. I am of the considered view that the Appointing Authority was under a duty of fairness 9 and reasonableness as mandated by Article 14 of the Constitution of India to take an overall view of the matter and the possibility of the petitioner, being from a rural background, to mistake an acquittal as non-prosecution--legality apart a layman can reach this potential conclusion. This has not been done in the instant case and the impugned order dated 19.06.2015 discharging the petitioner has been passed as if out of a slot machine where discharge in the facts of the case was the only inevitable consequence and not a possible consequence of a minor misstatement of fact. I am of the considered view that the judgments relied upon by the counsel for the respondents-Railways turned on their own facts and cannot be construed to mean that even suppression of a piece of information quite irrelevant to the evaluation of the character and antecedents of a candidate must necessarily entail his disqualification and render him unfit for employment under the government.
17. The above conclusion is buttressed by the fact that the petitioner had nothing to gain from suppressing the factum of his having been prosecuted in a criminal case in which he had been acquitted. The disclosure of the factum of involvement in a criminal case in which the petitioner was acquitted could not even by any stretch of imagination have entailed his being found unsuitable for government service in view of reasons analogous to Section 12 of the Act of 1958. If a 10 conviction for all offence not grave in nature and following probation cannot entail a disability in law, how can acquittal entail one ? I am of the view that a suppression of fact can entail finding of unsuitability of a candidate in government service on that count only in the event the suppression was beneficial. This leads to the conclusion that an irrelevant misstatement of fact as in the instant case, cannot result in the declaration of an applicant as unsuitable for government service.
Further in the case of Avtar Singh (supra) the Apex Court has more comprehensively held that:-
30. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize our conclusion thus:
(1) Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, (4 of 5) [CW-2718/2016] whether before or after entering into service must be true and there should be no suppression or false mention of required information.
(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.
(3) The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
(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 : -
(a) In a case trivial in nature in which conviction had been 11 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.
(b) Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
(c) 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.
(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.
(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.
(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.
(5 of 5) [CW-2718/2016] (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.
(9) In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.
(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.
(11) Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."
In the light of the orders passed in the case of Shobha Ram Meena (supra), wherein reliance was placed upon the case of Kamal Singh Meena Vs. Union of India & Others, reported as 2016 (3) W.L.C. (Raj.) 687 and in the case of Avtar Singh Vs. Union of India and Others, (Special Leave Petition No.20525/2011), reported as 2016 (8) SCC 471, the present petition is allowed and the respondents are directed to reconsider the case of the petitioner, in terms of the judgments of the Court in the case of Kamal Singh Meena Vs. Union of India & Ors. (supra) and of the Apex Court Avtar Singh Vs. Union of India & Ors. (supra). In the event, it is decided not to appoint the petitioner a reasoned and speaking order shall be passed by the respondents. However if the petitioner is to be appointed, an appropriate order in that regard shall also be passed. The entire exercise be completed within a period of three months from the date of presentation of a certified copy of this order.
(KANWALJIT SINGH AHLUWALIA)J. Ashok/