Allahabad High Court
Hanuman Chauhan And 7 Othrs. vs Union Of India And 3 Others on 15 December, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:238029 Court No. - 35 Case :- WRIT - A No. - 30393 of 2017 Petitioner :- Hanuman Chauhan And 7 Othrs. Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Tejasvi Misra Counsel for Respondent :- A.S.G.I.,Gyan Prakash Singh,Manoj Kumar Singh,Saurabh Srivastava,Shiv Kumar Pal Hon'ble Vikas Budhwar,J.
1. Heard ShriTejasvi Misra, learned counsel for the writ petitioners who are eight in number as well as Shri Gyan Prakash Singh, learned counsel for the respondents.
2. Since counter affidavit have been exchanged between the parties thus they do not propose to file further response thus with their consent the writ petitions are being decided at the admission stage.
3. The case of the writ petitioners who are eight in number are that an advertisement was published bearing No. 1 of 2011 by the Chief Security Officer Railway Protection Officer, RPSF, Gorakhpur, U.P. for recruitment on the post of constable (G.D.) in Railway Protection Force. The writ petitoners claim to have applied in pursuance of the said advertisements. They further claims to have been selected and were sent to the respective taining centres for training. However, the services of the writ petitioners stood discharged owing to the fact that they did not disclose the factum of criminal cases against them which led to filing of writ petitions before this Court being Writ A No. 52201 of 2015 Hanuman Chauhan Vs. Union of India and others. In the similar fashion, the writ petitioner Nos. 2 to 8 also preferred writ petition before this Court. The said writ petitions so preferred by the writ petitioners came to be decided while remitting the matter back to pass fresh order.
4. For the sake of braveity, the order dated 16.12.2016 passed in Writ A No. 52201 of 2015 Hanuman Chauhan Vs. Union of India and others in being quoted hereinunder :
"Heard Sri Vijay Gautam, learned counsel for the petitioner and Sri Vivek Singh, learned counsel for respondents.
Learned counsel for the parties are agreed that the controversy involved in the present writ petition is fully covered by Writ Petition No. 52227 of 2015 (Mulayam Singh Yadav Vs. Union of India and others). The order dated 18.10.2016 of the aforesaid petition is quoted hereinunder:-
"Heard Sri Vijay Gautam, learned counsel for the petitioner and Sri Vivek Singh, learned counsel for respondent nos. 1 to 5.
The present writ petition has been filed with the following prayer:
"a. Issue a writ, order or direction, in the nature of certiorari, for quashing the impugned order dated 04.06.2015, passed by respondent no. 4, enclosed as Annexure-1, to the writ petition.
b. Issue a writ, order or direction, in the nature of mandamus, directing the respondent authorities to permit the petitioner to continue his training.
c. Issue a writ, order or direction, in the nature of mandamus directing the respondent authorities to reinstate the services of the petitioner and pay salary along with all the consequential benefits.
d. ......
e. ......"
The contention of the learned counsel for the petitioner is that the order dated 4.6.2015 by means of which the services of the petitioner has been discharged has been passed without any application of mind or without any appreciation of the facts and circumstances of the case.
Vide order dated 21.9.2015 an elaborate interim order was passed in the present case which reads as follows:
"The petitioner is under training for the Constable GD post, in RPF/RPSF. He has challenged the order of cancellation of his candidature whereby his candidature has been cancelled on the ground that he has suppressed the material fact in the attestation form that he was involved in a Criminal Case No. 232/2013 under section 457/380/427 IPC, Police Station Soraon, district Allahabad.
It is contended on behalf of the petitioner that he never intended to give wrong and false information when he filled up the Form he had no knowledge about the criminal case and his name has been figured in the Charge sheet. In paragraph 17 of the writ petition it is averred that petitioner has been acquitted in the said Criminal Case on 1.11.2014. A copy of the said order has been brought on record as Annexure-6 to the writ petition.
Learned counsel for the petitioner has placed reliance on the judgment of the Supreme Court in the case of Ram Kumar v. State of U.P., 2011 (4) ESC 634 and the case of Commissioner of Police and others v. Sandeep Kumar (2011)4 SCC 644, wherein it has been laid down that in such cases lenient view should be taken.
Learned counsel for the respondent Sri Vivek Singh, submits that the petitioner has deliberately concealed the facts and he has placed reliance on the judgment of the Supreme Court in the case of Commissioner of Police, New Delhi and another v. Mehar Singh (2013) 7 SCC 685, wherein it has been held that in the disciplined force suppression of fact is fatal, the employer can consider the gravity of the conduct.
The matter needs consideration.
Learned Standing Counsel may file counter affidavit within two months. Rejoinder, if any within a week thereafter.
List the matter after expiry of the said period.
In the meantime, it is provided that petitioner shall be allowed to complete his training.
No appointment letter shall be issued to the petitioner without leave of the Court."
The contention of the learned counsel for the petitioner is that the impugned order dated 4.6.2015 is a non-speaking order and it does not show as to whether the authority concerned has really applied its mind to the facts and circumstances. The order does not show as to whether the authority concerned has really gone into the nature of the information which has been suppressed or the ramification of the information so suppressed.
Learned counsel for the petitioner has informed the Court that in pursuance of the interim order passed in this case on 21.9.2015, the petitioner has already completed his training.
A reliance has also been placed upon the judgment of the Apex Court rendered in the case of Avtar Singh vs. Union of India & Ors. reported in 2016 (8) SCC 471 wherein in paragraph no. 30 it has been held as follows:
"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, 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 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.
(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 view of the aforesaid legal position which has not been disputed by the learned counsel for the respondents, the petition deserves to be allowed and the order dated 4.6.2015 passed by respondent no. 4 is liable to be quashed and the same is hereby quashed and liberty is given to the respondents to reconsider the matter and thereafter pass a fresh appropriate order after giving an opportunity of hearing to the petitioner within three months from the date of production of a certified copy of this order.
It is being made clear that the reconsideration by the authority concerned shall be done keeping in view the observations as made in the judgment rendered in the case of Avtar Singh (supra).
The writ petition is, accordingly, disposed off."
Present writ petition is also disposed of in terms of the aforesaid judgment dated 18.10.2016 and the discharge order dated 19.6.2015 is quashed."
5. Post remand now Inspector General/General Security Officer Commissioner RPSF, New Delhi has proceeded to negate the claim of the writ petitioners by virtue of the order dated 12.05.2017 insofar as the writ petitioner Nos. 1, 2, 4, 6 and 7 are concerned and 11.05.2007 insofar as petitioner Nos. 3, 5 and 8 are concerned.
6. Questioning the said orders, the writ petitioners have preferred the present writ petition.
7. The writ petition was entertained by this Court, a counter was sought from the respondents, counter affidavit, supplementary counter affidavit has been filed, rejoinder affidavit has also filed by the writ petitioners also also supplementary affidavit, however, the parties have made a statement at bar that they do not propose to file any response.
8. Shri Tejasvi Mishra, learned counsel for the writ petitioners while assailing the said order has sought to submit that might be in the attestation forms submitted by the writ petitioner no. 1 on 10.06.2014, he did not disclose his character and antecedents in column IV of the attestation form with regard to the pendency of the criminal case being Case Crime No. 60 of 2007 under Section 323, 504 and 506 IPC and with respect to the petitioner no. 2 while submitting application form on 01.06.2004, the pendency of the Criminal Case No. 242 of 2012 under Section 323, 325, 384 IPC, petitioner No. 3 on 02.06.2014 pendency of Criminal Case No. 371A/12 under Section 147, 148, 323, 504, 506 IPC, petitioner No. 4 attestation form dated 02.06.2014 Case Crime No. 157 of 2009 and 438 of 2009 under Sections 323, 324, 506 IPC and Section 110 (G) Cr.P.C., petitioner No. 5 attestation form dated 16.06.2014 Criminal Case No. 159A/11 of under Sections 147, 148, 323, 324, 308 IPC, petitioner No. 6 attestation form dated 05.06.2014 criminal case No. 242 of 2011 under Sections 324, 452, 506, 527, petitioner No. 7 attestation form dated 16.06.2014 Case Crime No. 251 of 2007 under Sections 323, 354, 506 IPC and petitioner No. 8 attestation form dated 19.05.2014 Case Crime No. 684 of 2012 under Sections 323, 354, 352 506 IPC but once the writ petitioners stood acquitted by the Court of law then in view of the law laid down by the Hon'ble Apex Court in the case of Pawan Kumar Vs. Union of India and Another in Civil Appeal No. 3574 of 2022 decided on 02.05.2022 a consideration ought to have been made as to whether the incumbent/recruit is suitable to become the member of the force or not. He submits that the orders in question which has been passed by the respondents negating the claim of the writ petitioners only discusses the fact that the writ petitioners had concealed the factum of pendency of the criminal case but the finding with regard to the fact as to whether the incumbent/recruit is suitable to be become the member of the force was not addressed too. He submits that concealment and non-disclosure of a criminal case is one aspect of the matter, but the second aspect which needed to be considered was the import and impact of the same, particularly when the same is relatable to the suitability of a recruit with respect to the pendency of the criminal case. Submission is that a subjective consideration is to be made also with respect to the fact that the writ petitioners stood honourably acquitted in all the criminal case. According to him, this was also the import of the judgment in the case of Avtar Singh Vs. Union of India 2016 (8) SCC 471 as well as followed in Civil Misc. Review Application No. 40 of 2022 in Writ A No. 38386 of 2017 Anil Kumar Vs. Union of India decided on 24.05.2022 as well as the judgment in the case of Anil Kumar Vs. Union of India and 3 others Writ A No. 13384 of 2022 decided on 04.11.2022.
9. Additionally, it is being sought to be argued that with respect to petitioner No. 7 at the time of lodging of the first information report, he was a juvenile and thus the judgment in the case of Shivam Maurya Vs. State of U.P. reported in 2020 (5) ADJ 6 would stand applicable, he seeks to rely upon the supplementary affidavit so as to buttress the said submission.
10. Shri Gyan Prakash Singh who appears for the respondents submits that while countering submission of the learned counsel for the writ petitioner submits that the orders in question cannot be faulted in any manner whatsoever, particularly, in view of the fact that the employment is in a discipline force and further the writ petitioners being a recruitee and the applicants were under legal obligation to disclose to their antecedent with regard to the lodging of the criminal case against them. He submits that when the same came to be noticed while verifying the characters of the writ petitioners then corrective actions have been taken as even otherwise in case the facts would not have surfaced then it was a clear case of fraud and cheating at the end of the writ petition. According to him, mere acquittal would not entitle the writ petitioners for any benefit as it is a case of loss of confidence in the job which is of discipline force. He seeks to rely upon a division Bench judgment of this Court in the case of Tej Bahadur Yadav Vs. Union of India and 4 others Special Appeal No. 153 of 2019 decided on 22.09.2021 wherein the criteria so initiating in Avtar Singh (Supra) is discussed in detail and also the judgment in the case of Rajasthan Rajya Vidyut Prasaran Nigam Ltd. Vs. Anil Kanwariya in Civil Appeal No. 5743-5744 of 2021 dated 17.09.2021 was followed and it was held that in such of type of cases, the writ petitioners/recruitee is not entitled to be bestowed with any equity.
11. I have heard the learned counsel for the parties and perused the record.
12. The facts are not in dispute. It is not in dispute that on the date of the submission of the application form/attestation form, criminal cases were lodged against the writ petitioners which were pending. It is also not in dispute that between the parties that the writ petitioners were honorably acquitted. However, the only question which arises as to whether the writ petitioners are entitled to any benefit or not in the wake of the pendency of the criminal cases on the date of the submission of the application form/attestation form. The order impugned dated 11.05.2017 and 12.05.2017 which are eight in number shows that the Inspector General/Chief Security Officer, RPSF, New Delhi, third respondent had swayed itself while observing and coming to the conclusion that the writ petitioners/recruitees had concealed the criminal cases though under the terms of the advertisement, they were required to disclose as there was specific column in the application form/attestation form showing the pendency of the criminal case, if any. Since according to the respondents there had been willful non-disclosure of a vital fact thus the writ petitioners are not entitled to be granted any relief. At this juncture, the Court may remind itself in the decision in the case of Pawan Kumar (supra) wherein this Court was of the opinion that it was an obligation upon the authority to examine as to whether the incumbent/recruit is suitable to become a member of the force or not in the wake of the criminal case. Since the said exercises is virtually absent in the order in question and further the reliance was placed upon the learned counsel for the respondents upon the judgment in the case ofRajasthan Rajya Vidyut Prasaran Nigam Ltd. (supra)had already discussed in the judgment of Pawan Kumar (supra) thus in the opinion of the Court, the matter needs to be given a re-look. The third respondent under law is required to accord its satisfaction with regard to the suitability of the writ petitioners to be a member of a force in the background of the pending of the criminal case on the date of the submission of the application/attestation form.
13. At this stage, Shri Gyan Prakash Singh who appears for the respondents submits that let the matter be remitted back to the third respondent to pass afresh order and enabling it to accord its satisfaction in the light of the discussions made above.
14. Considering the submission of rival parties in particulars and Shri Gyan Prakash Singh who appears for the respondents, the writ petition is being decided in the following manner:
a). The orders dated 11.05.2017 and 12.05.2017 passed by the Inspector General/Chief Security Officer, RPSF, New Delhi, third respondent are set aside.
b). The matter stands remmitted back to the third respondent to pass fresh orders strictly in accordance with law within a period of three months from the presentation of the certified copy of the order.
15. With the aforesaid observations, the writ petition is partly allowed.
Order Date :- 15.12.2023 A. Prajapati