Allahabad High Court
Sunny Yadav And Another vs Union Of India And 3 Others on 19 February, 2020
Author: Ashok Kumar
Bench: Ashok Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 72 Case :- WRIT - A No. - 56691 of 2017 Petitioner :- Sunny Yadav And Another Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Tejasvi Misra Counsel for Respondent :- Vikash Chandra Tripathi,Hari Narayan Singh Hon'ble Ashok Kumar,J.
Heard Sri Tejasvi Misra, learned counsel for the petitioners and Hari Narayan learned counsel representing all the respondents.
Learned counsel for the petitioners and learned standing counsel agrees that the controversy involved in the instant writ petition is similar in nature as is covered by the order of this Court dated 18.10.2016 passed in Writ A No. 5948 of 2015 (Surendra Pratap Yadav vs. Union of India and 5 others). The order dated 18.10.2016 is quoted hereinbelow :
"Heard Sri Vijay Gautam, learned counsel for the petitioner and Sri Vivek Singh, learned counsel for respondent nos. 1 to 6. 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 29.7.2015, 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 29.7.2015 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.
The contention of the learned counsel for the petitioner is that the impugned order dated 29.7.2015 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 and a perusal of the same shows that it has been passed merely by observing that "thus you have violated the provisions contained in Para No. 3 of the "Attestation Form" by suppressing the factual information." 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.
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 29.7.2015 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."
Learned counsel for the petitioners has placed reliance of the order passed by the respondent authority, a copy of which is enclosed as Annexure 6-A, which reads as follows:
भारत सरकार रेल मंत्रालय (रेलवे बोर्ड) GOVERNMENT OF INDIA MINISTRY OF RAILWAYS (RAILWAY BOARD) 2015/Sec(ABE)/CC/2/80 New Delhi, dated- 13.05.2017 Shri Surendra Pratap Yadav S/o Sh. Ram Kuber Yadav, Vill-Poora Bahoriya Post-Gaddopur Post Maharajgarh, Distt. Jaunpur, State of U.P. Pincode-222125.
Sub:- Writ petition No. 59458/2015 filed by Shri Surendra Pratap Yadav S/O Shri Ram Kuber Yadav, Vs. UOI& Ors in the Hon'ble High Court of Allahabad - reg. ******** In compliance to Hon'ble High Court Allahabad's order dated 18.10.2016, enclosed herewith the Copy of order dated 12.05.2017 passed by IG-Cum-CSC/RPSF, Railway Board in connection with subject matter for information. Encl:- As above.
(Dr. R.K. Verma) Sr. CO/6BN For Director/Sec(ABE) Railway Board Copy to:-
1. CSC/NER, Gorakhpur for kind information please (Respondent No.6)
2. DIG/R&T, Railway Board for kind information please.
3. CO/2BN/RPSF/GKP for information
4. Shri Vivek Singh Railway Advocate Allahabad (through 2BN/RPSF/GKP) for kind information
5. Shri Vijay Gautam Advocate, 21 Muir Road, (Near TV Tower Crossing), Allahabad-211001 for kind information.
(Dr. R.K. Verma) Sr. Co/6BN For Director/Sec(ABE) Railway Board भारत सरकार रेल मंत्रालय (रेलवे बोर्ड) GOVERNMENT OF INDIA MINISTRY OF RAILWAYS (RAILWAY BOARD) *** 2015/Sec(ABE)/CC/2/80 New Delhi, dated 12.05.2017 SPEAKING ORDER Sub:- Final Order on representation of Shri Surendra Pratap Yadav S/O Sh. Ram Kuber Yadav.
Ref:- (i) Compliance of Hon'ble High Court, Allahabad order 18.10.2016 passed in WP No. 59458/2015 Shri Surendra Pratap Yadav vs. UOI & Others.
(ii) Representation of Shri Surendra Pratap Yadav S/O Sh. Ram Kuber Yadav dated 21.02.2017 *** "Petitioner Shri Surendra Pratap Yadav S/O Sh. Ram Kuber Yadav was provisionally selected as Constable in RPSF vide Employment Notice No.01.2011. subsequently he was sent for training at STC BSF Meru, Distt. Hazaribagah, Jharkhand commencing 01.11.2014 pending verification of his antecedents and character in view of administrative exigencies. Prior to training he filled up Attestation form on 16.05.2014 wherein he did not mention regarding registration of any Police Case in Column No.12 of Attestation form.
Attestation form of Shri Surendra Pratap Yadav was sent to DM/Jaunpur for verification of his character and antecedents. On receipt of Police Verification Report (PVR) from District Magistrate, Jaunpur (UP), it was found that petitioner has suppressed the information of his involvement in Police Case No. 205A/2008 under section 147, 149, 323, 504, 506, 452 & 308 IPC while filling up Attestation Form signed on 16.05.2014, thus he violated the Para-03 of Attestation form where it has clearly been stated that:
"If the fact that false information has been furnished or that there has been suppression of any factual information in the attestation form comes to notice at any time during the service of a person, his services would be liable to be terminated".
Based on the PVR report of DM/Jaunpur, petitioner was discharged by IG-Cum-CSC/RPSF Railway Board vide discharge order No. 2015/Sec(ABE)/Trg/2/5 dated 29.07.2015, as per provision contained in Para-03 and under Rule 52.2 & 67.2 of RPF Rules 1987 for suppression of facts which tantamount to false declaration.
Aggrieved by the discharge order, Shri Surendra Pratap Yadav filed Writ Petition No. 58084/2015 before Hon'ble High Court of Allahabad for re-instatement in service and pay salary alongwith all the consequential benefits.
Upon hearing the case, Hon'ble Court of Allahabad passed the order on dated 18.10.2016 that:
".................... in view of the legal position which has not been disputed by the learned counsel for the respondents the petition deserves to be allowed and the order dated 29.07.2015 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 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 judgement rendered in the case of Avtar Singh (Supra)."
In compliance of Hon'ble High Court Allahabad's judgment/order dated 18.10.2016 passed in WP No. 59458/ 2015, the petitioner Shri Surendra Pratap Yadav was called for personal hearing on 21.02.2017 before the undersigned and his submissions were heard. He also submitted a written representation requesting to take him into Railway service i.e. for the post of Constable (executive) in RPSF.
In his representation dated 21.02.2017 which is reiterated by PVR, the candidate has recorded that he was acquitted in Police Case No. 205 A/08 U/S 147, 149, 323, 504, 506, 452 & 308 by Court order dated 31.08.2012 and he also reproduced the Court order.
Keeping in view the PVR and facts represented in the statement of the candidate have come to the conclusion at the time of filling up of attestation form the character of the candidate was unblemished. Since the candidate was acquitted in the year 2012 itself hence he did not record so in the attestation form. However it is a fact that he made an incorrect statement of having been never involved in any criminal case in his life but I have a reason to believe that it must have been done in good faith since he got acquitted in the criminal case long before filling up of attestation form. Hence, his action appears to be in good faith.
Hence I have applied my mind and on evaluation of the facts on record, extant rules, and having accorded the opportunity of personal hearing and representation to the petitioner keeping with the principles of natural justice, and in light of directions of the Hon'ble Supreme Court judgment in Avtar Singh Vs. Union of India and others, I hereby come to the considered conclusion as Appointing Authority that Shri Surendra Pratap Yadav is fit for Government Service as a Constable in RPF/RPSF. The petitioner may be informed accordingly."
(Jalaya Varmah) IG-cum-CSC / RPSE) New Delhi' In the view of the above, the instant writ petition is disposed of with the direction to the respondent no.4 to pass an appropriate reasoned and speaking order, strictly in accordance with law after due consideration of the order passed by this Court dated 18.10.2016 as well as the order passed by respondent no.2 in the case of Surendra Pratap Yadav.
Order Date :- 19.02.2020 S.S.