Madhya Pradesh High Court
Sanjeev Singh Jadon vs State Of M.P. on 16 December, 2016
1 Sanjeev Singh Jadon v. State of MP and Ors.
WA. 172.2012
16/12/2016
Shri Prashant Sharma Advocate for the appellant.
Shri Praveen Newaskar, Govt. Advocate for the
respondent/State.
Present Intra-court appeal assails the final order dated 22.11.2011 whereby the petition in question assailing the termination of the petitioner/respondent herein from the post of constable in Police has been dismissed.
2. Learned counsel for the rival parties are heard.
3. Perusal of the order of the writ court reveals that upholding the right of the employer to invoke one of the conditions of termination by giving one month notice or service in lieu thereof subject to which appointment was made, relief sought has been declined.
4. The return of the State before the writ court further revealed that the petitioner/respondents herein had suppressed the factum of registration of offence against him punishable u/S. 3/25 Arms Act which had culminated into acquittal by judgment dated 21.3. 2013 in Criminal Case No. 156/2001 by the 3rd Additional Judicial Magistrate First Class, Bhilwada, Rajasthan.
5. In the above said factual background the writ court found the innocuous termination of the petitioner/respondent herein to be tenable in law.
6. After hearing learned counsel for the rival parties and considering the material available on record, this court does not find any illegality or impropriety in the order of the writ court.
7. However, during the course of arguments, learned counsel for the petitioner has invited the attention of this court to a recent decision of the Apex Court in the case of Avatar Singh Vs. Union of India and Ors reported in (2016) 8 SCC 471 and a decision 2 Sanjeev Singh Jadon v. State of MP and Ors.
WA. 172.2012 rendered by the Single Bench of this court in W.P. No. 1016/2009 on 9.8. 2016 after following the ratio in the case of Avatar Singh. It is submitted by learned counsel for petitioner that direction for consideration of the case for retention in service be made after giving liberty to the employer to assess the relevancy of the offence, the fact of petitioner having been acquitted and the bearing these facts have upon the prospects of the petitioner/respondent herein to be employed in a disciplined force.
8. This court while passing the judgment in W.P. No. 1016/2009 (Deepak Singh Tomar v. Union of India and Ors.) observed after following the verdict of Apex Court in Avatar Singh, that the matters relating to employment in disciplined force were also considered by Apex Court in Avatar Singh case. The relevant extract of the said judgment decided on 9.8. 2016 in W.P. No. 1016/2009 ( Deepak Singh Tomar v. Union of India and Ors.) is reproduced below for convenience and ready reference.
It is also relevant to mention here that the specific contention of the learned ASGI that the matters of employment in armed force have not been taken into account in Avtar Singh (supra) is required to be considered.
In this regard perusal of the decision Avtar Singh(supra) in particular Para 11, 12, 15, 17, 18 and 19 reveal that the Apex Court has dealt with the matters of termination of appointment/candidature due to suppression of material information in the attestation form by the members disciplined force in the cases of R.Radha Krishnan Vs. Director General of Police and Ors. reported in (2008)1 SCC 660, Union of India and Ors. Vs. Bipad Bhanjan Gayen reported in (2008)11SCC 314, Daya Shankar Yadav Vs. Union of India and Ors. reported in (2010)14 SCC 103, State of West Bengal and Ors. Vs.SK. Nazrul Islam reported in (2011)10 SCC 184Commissioner of Police Vs. Sandeep Kumar reported in (2011) 4 SCC 644 and Ram Kumar Vs. State of U.P. reported in (2011)14 SCC
709. Thus, the submission of the learned ASGI as mentioned above does not hold water.
Considering the final guidelines laid down by in para 13of the Larger Bench decision, it is noticed that the law laid 3 Sanjeev Singh Jadon v. State of MP and Ors.
WA. 172.2012 down which squarely applies to the factual matrix of the case herein is contained in para 30(4)(a) which is reproduced again for ready reference:-
PARA-30
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 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.
Consequently, it is evident that after taking into account various decisions including those of members of disciplined force, the Larger Bench of Apex Court has laid down that where it is found that there is suppression of information in criminal case where acquittal or conviction has already been recorded and this fact comes to the knowledge of the employer later, then the appropriate recourse to be followed is that if the criminal case was of trivial nature and the same may not render the incumbent unsuitable for the post in question the employer may in its discretion, ignore such suppression of fact or false information by condoning the lapse.
It is thus evident that since though the Larger Bench in three decisions rendered by Benches of lesser composition, but the point of law in those three earlier decision was duly considered in detail, this Court is compelled to infer that the earlier three Division Bench decision of the Apex Court are impliedly over ruled by the Larger Bench comprising of three Hon'ble Judges of the Apex Court. While so observing as mentioned (supra) this court further holds thus:-
"Whether the criminal case in which the petitioner was involved which ended in acquittal was trivial in nature is not for this Court to decide as the said decision may depend on various factors including nature of duty attached to the post in question, the extent of discipline required in the service in question and whether the offence and suppression of the same would adversely reflect upon the character of the incumbent. All these factors or may be some more ought to be left to the discretion of the employer to decide. In view of the above, this Court is 4 Sanjeev Singh Jadon v. State of MP and Ors.
WA. 172.2012 of the considered view that in the light of the law laid down by Larger Bench of the Apex Court in Avtar Singh (supra) the question as to whether the petitioner in the given facts and circumstances as enumerated above is fit to be retained in disciplined force or not, needs to be reconsidered by the respondents."
9. In view of the above, it would be appropriate that the matter from all angles be looked into by the employer on the basis of the law laid down by the Apex Court in the case of Avatar Singh (supra) especially paragraph '38' which lays down guidelines to be followed by the employer while considering the cases for retention or otherwise in public service of persons having antecedents. The above said paragraph is read as follows:
"38. 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:
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.
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 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.
5 Sanjeev Singh Jadon v. State of MP and Ors.
WA. 172.2012 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. 38.9. 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. 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."
10. That apart the power of judicial review under Article 226 is exercisable against the decision making process by executive authority and not against the decision as such it was improper on the part of the writ court to have directed the respondents to appoint the petitioner on the post of Constable. Such direction deprives the executive authority of its power to consider the suitability of the candidate. Writ court 6 Sanjeev Singh Jadon v. State of MP and Ors.
WA. 172.2012 ought to avoid stepping into the shoes of the administrative authority.
11. Accordingly, the writ appeal stands disposed of with the following directions:-
1. The competent authority ie respondent no. 2, shall reconsider the case of the petitioner to adjudge his suitability for retention in Police Force in terms of the above directions keeping in mind the law laid down by the Apex Court in the case of Avatar Singh.
2. The said consideration shall be made within 60 days from the date of receipt of copy of this order.
3. The decision taken by the employer after the said consideration shall be communicated to the petitioner as expeditiously as possible.
4. While considering the case of the appellant/petitioner the respondent shall neither be influenced by passing of the impugned termination order dated 19.3. 2004 Annexure P-1 nor influenced by the fact of the petitioner having approached this court.
5. It is needless to emphasize that this court has not expressed any opinion on the suitability of the appellant/petitioner before retaining in service which is left entirely to the discretion of the competent authority before assessing on the basis of law discussed above and law laid down by the Apex Court. The competent authority is free to take decision either way.
(Sheel Nagu) (S.K. Awasthi)
JUDGE JUDGE
16.12.2016 16.12.2016
ar