Central Administrative Tribunal - Delhi
Avdhesh Kumar Meena vs M/O Finance on 18 October, 2024
1
OA No.2878 /2021
Court No.2 (item No.38)
Central Administrative Tribunal
Principal Bench
OA No.2878/2021
Reserved on:18.09.2024
Pronounced on: 18.10.2024
Hon'ble Mr.R.N. Singh,Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Avdhesh Kumar Meena (Ex-MTS)
S/o Sh. Ram Kalyan Meena
R/o H.No.226, VPO: Pahari,
The-Toadabhim, Distt. Karauli, Rajasthan
- Applicant
(Through Advocate:Mr.U.Srivastava)
Versus
1. Union of India through the Secretary (Revenue)
Ministry of Finance, North Block, New Delhi.
2. The Registrar Customs Excise & Service Tax
Appellate Tribunal, West Block No. 2, RK Puram,
Delhi.
3. The Dy. Registrar, Customs Excise & Service Tax
Appellate Tribunal, West Block No.2, RK Puram,
Delhi.
-Respondents
(Through Advocate: Ms.Gauran)
2
OA No.2878 /2021
Court No.2 (item No.38)
ORDER
By Hon'ble Mr. Rajinder Kashyap, Member (A): -
The applicant has filed present Original Application under Section 19 of the Administrative Tribunals Act., 1985, seeking the following relief under para 8 of the OA: -
"(a) Directing the respondents to place the relevant records pertaining to the present OA before the Hon‟ble Tribunal for the proper adjudication in the matter.
(b)Quash and setting aside the impugned termination order dt.29.10.2021 (Annexure A/1) after declaring the same is as illegal, biased, perverse, unjust, arbitrary, malafide, unconstitutional, against the principles of natural justice, violative of articles 14, 16, & 21 of the constitution of India and against mandatory provision of law accordingly the applicant may be reinstated and allowing to continue in services in accordance with relevant rules and instructions on the subject.
(c) Allowing the instant OA with consequential benefits and costs.
(d) Any other fit and proper relief may also be granted."
2. The brief facts of the case are that the applicant applied for the post of MTS-2019 against the vacancies advertised by the Staff Selection Commission (NR). After being successful in the selection process 3 OA No.2878 /2021 Court No.2 (item No.38) conducted by the Staff Selection Commission, the applicant was offered appointment vide letter dated 30.07.2021 (Annexure A-3) as MTS in Customs, Excise & Service Tax Appellate Tribunal on temporary basis in Level-1 fixing period of probation. However, the appointment was subject to the verification of character and antecedents, as the post in question belongs to Group -C, Non-Gazetted, Ministerial and Level-I (pre-revised pay band of Rs. 5200-20200/- with grade pay of Rs. 1,800) plus allowances as per rules. Subsequently, the respondents issued an order vide letter dated 14.09.2021 (Annexure A/5) appointing the applicant as MTS on temporary basis in Level-1 fixing the period of probation as the applicant joined as MTS at CESTAT, Delhi. However, the appointment was subject to the verification of character and antecedents. On 27.10.2021, the respondents issued an Office Memorandum to the applicant asking to show cause as to why his service should not be terminated for willfully concealing and suppressing the facts of his conviction in a criminal case in the attestation form submitting by him. The applicant submitted his 4 OA No.2878 /2021 Court No.2 (item No.38) explanation to the said show cause notice. The respondents without considering his response issued the impugned order dated 29.10.2021 (Annexure A-1) terminating the services with immediate effect and cancelling the appointment of applicant in view of report of Supdt. of Police, Karauli, Rajasthan, vide letter dated 8.10.2021 informing that a case No 39/2018 dated 17.1.2018 under IPC 323 and 341 was registered against the applicant at Police Station (Kotwali), Dausa District and he was issued charge sheet under IPC 323 and 341 as per the directions of District and Sessions Court, Gram Nyayalay Dausa and that the applicant was convicted under Section 4 of the Probation of Offenders' Act. Therefore, the respondent authorities held that the applicant (Shri Avdhesh Kumar Meena) having found to be convicted by the District and Sessions Court, Gram Nyayalay, Dausa and the said fact has been suppressed by the applicant in the attestation form, hence, he is found not fit to continue in the government service.Aggrieved by the aforesaid impugnedorder dated 29.10.2021 (Annexure A-1), the applicant has filed the present 5 OA No.2878 /2021 Court No.2 (item No.38) Original Application, seeking the aforementioned relief.
On admission of the OA, notices were issued to the respondents and they have filed their counter reply on 01.03.2023, to which the applicant has also filed his rejoinder on 18.03.2023.
3. The respondents have filed their reply stating that the applicant does not have a prima facie case as the impugned order was issued as per rules and after the applicant was given an opportunity to defend himself by way of filing his representation against the show cause notice dated 27.10.2021. The impugnedorder was passed after considering the reply filed by the applicant on28.10.2021. The case relates to furnishing false information and suppression of material facts rendering the applicant disqualified to continue in government service against which he has not put up a formidable case. The learned counsel for the respondents has cited the recent judgment of Hon'ble Supreme Court of India, in the case Satish Chandra Yadav v. Union of India & Ors. Special Leave Petition (Civil) No. 20860 of 2019 and thereafter in 6 OA No.2878 /2021 Court No.2 (item No.38) Ex-Const/Dvr Mukesh Kumar Raigar Versus Union of India & ors, Special Leave Petition (Civil) no. 10499 of 2022 wherein the Hon‟ble Supreme Court of India has held that suppression of information regarding criminal cases is a grave misconduct and, therefore, dismissal from service on the said ground is upheld. In light of judgment cited by learned counsel for the respondents sought dismissal of the present OA on the grounds of precedence as the applicant herein has suppressed material facts in the attestation form and furnished false information and verified the same as being true, thereby committed fraud and misrepresentation. It is further stated that mere qualifying the competitive examination and getting an offer of appointment would not guarantee appointment as the candidate should also be found medically fit and his character and antecedents are verified by the local police and all other claims including educational qualification/reservation category are verified from the authorities concerned. It is further submitted that Column 12 of the attestation form has ten questions, six of which relate to arrest/ prosecution/conviction 7 OA No.2878 /2021 Court No.2 (item No.38) etc. of the candidate and are questions of fact and not law. By answering 'NO' he asserts and verifies the contents and concedes that he would bear the consequence of giving false answer knowingly. By giving false information suppressing the material facts, the applicant forfeited his candidature. He cannot take recourse to ignorance of law as the questions were based on facts and the applicant suppressed the facts with ulterior motive of getting appointment in government service. It is further submitted that the memorandum was issued to the applicant after the police verification report was received in respect of his antecedents. The Police verification report dated 08.10.2021 received from the District Police Office of Karauli, Rajasthan mentioning that the investigation of character and antecedents of Shri Avdhesh Kumar Meena S/o Shri Ram Kalyan Meena, caste Meena, resident Pahadi Police Station Belghat, district Karauli was conducted from the police station Belghat and according to the said record of the police station Haza, a case no. 39/2018 dated 17.01.2018 under Section 323, 341 IPC was registered at Thana Kotwali, Dausa 8 OA No.2878 /2021 Court No.2 (item No.38) district, against the applicant as charge sheet no. 28/18 under Section 323, 341of the IPC. The Hon‟ble Court of Dausa, District Dausa, on 04.12.2019, granted probation to the Applicant under Section 4 for a period of one year on executing a bond of five thousand rupees each on condition that he will live in peace and will not repeat the offence. No satisfactory reply was given by the applicant to the Memorandum. It is also stated that the applicant was given a Show Cause Notice dated 27.10.2021, he submitted his reply dated 28.10.2021 to the aforesaid Show Cause Notice and the impugned order dated 29.10.2021 is a well- reasoned speaking order and is in consonance with the law of the land as laid down by the Hon'ble Apex Court in Satish Yadav and Ex-Const./Dvr. Mukesh Kumar Raigar (supra) cases. The leaned counsel for the respondents further states that in this Ignorantia Juris Non Excusat[meaning ignorance of the law excuses not meaning a person cannot avoid liability for breaking a law by claiming they did not know about it.]and moreover, it is a case of suppression of material facts and for that reason the applicant was found 9 OA No.2878 /2021 Court No.2 (item No.38) disqualified to continue in government service. The respondents while filling their reply on 01.03.2023 also filed the following additional documents (i) a copy of attestation form which was filled by the applicant (Annexure R-3) (ii) a copy of Police verification report of the applicant (Annexure R-4), (iii) a copy of OM dated 19.05.1993.
4. In response to the reply filed by the respondents, the applicant filed his rejoinder stating that the applicant applied against the vacancies notified by the Staff Selection Commission (NR) for the post of MTS- 2019 in the meanwhile on04.12.2019 and a Case No. 133/18 titled as State Vs. Avdhesh u/s 323, 341 IPCwas decided from the Hon'ble District & Session Court, Gram Nyayalaya, Dausa, Rajasthan therein though the applicant was convicted but was extended the benefits of section 4 of Probation of Offenders Act with further directions that the applicant would be entitled for the benefits of section 12 of Probation of Offenders Act. Subsequently, on qualifying the mandatory examinations, the Offer of Appointment was 10 OA No.2878 /2021 Court No.2 (item No.38) issued to the applicant on 30.07.2021, asking him to join the post of MTS in Customs, Excise & Service Tax Appellate Tribunal. Further, the applicant was issued attestation form. However, on 13.08.2021, while filling up the attestation form the applicant being confused, as per advice, at item No. 12 inadvertently filled as 'No', regarding the information pertaining to criminal case. The respondents issued an order on 14.09.2021 appointing him as MTS on temporary basis in Level-l fixing the period of probation as the applicant joined as MTS at CESTAT, Delhi subject to the verification of corrector and antecedents. The respondents issued an OM on 27.10.2021 asking him to show cause on or before29.10.2021, as to why his services may not be terminated for being convicted in a criminal case and for willfully concealing and suppressing the above fact in the Attestation Form submitted by him. The applicant responded to the aforesaid show cause notice on 28.10.2021 and further the respondents issued an order 29.10.2021, terminating his services and cancelling the appointment order 14.09.2021 with immediate effect without application of mind by 11 OA No.2878 /2021 Court No.2 (item No.38) passing a non-speaking, unreasoned, bald and cryptic order as it reveals that the termination order is independent and absolute in the nature as neither there is any reference of the aforesaid show cause notice dated 27.10.2021 nor any comment appreciating, rebutting or discussion regarding the defence submitted by the applicant vide its representation dated 28.10.2021 Therefore, the impugned order dated 29.10.2021 terminating the services of the applicant is not sustainable in the eyes of law and is contrary to the law laid down bythe Hon'ble Supreme Court in D.K. Yadav vs J.M.A. Industries 1993SCC(3) and A.K. Bhatnagar And Ors vs Union Of India And Ors 1991 SCC (1) 544.He further stated that the impugned order terminating the services of the applicant is not sustainable in the eyes of law and submissions in counter reply filed by them are wrong, misconceived, misread and misleading. The judgments cited by the respondents are also distinguishable and not applicable in the facts and circumstances of the instant case.
12OA No.2878 /2021 Court No.2 (item No.38)
5. It is stated that against the inquiries, applicant has marked a tick stating „No‟. The Authority concerned reached to the conclusion that the applicant had not only suppressed the fact that an FIR was registered against him but also suppressed the facts that he had surrendered before the Chief Judicial Magistrate who, in turn, had released him on regular bail. He also suppressed the fact that there was Criminal Case was registered against him.
6. In such circumstances, a notice was issued to the applicant as to why his services should not be terminated. Upon conclusion of the enquiry the appellant ultimately came to be dismissed from service.
7. Heard learned Counsel for the parties and examined the pleadings and other connected records thereto.
8. The applicant has relied upon the following judgments: -
(i) Judgment dated 10.03.2023 of the High Court of Delhi in W.P. (C ) 2219/2023 titled Mahendra 13 OA No.2878 /2021 Court No.2 (item No.38) Solanki vs. The Commissioner of Police & Anors;
wherein the Hon‟ble High Court of Delhi hasheld as under:
10. It may be noticed that in Avtar Singh (supra), the issue had been referred for resolving of conflict of opinion in the various decisions of the Division Benches of Hon‟ble Supreme Court of India as noticed in Jainendra Singh v. State of U.P., (2012) 8 SCC 748, on the question of suppression of information or submitting false information in the verification form of having been criminally prosecuted, arrested or as to pendency of a criminal case. Having taken stock of the decisions of the Hon‟ble Supreme Court in State of M.P. v. Ramashanker Raghuvanshi, (1983) 2 SCC 145, T.S. Vasudavan Nair v.
Vikram Sarabhai Space Centre, 1988 Supp. SCC 795, Commr. of Police v. Dhaval Singh, (1999) 1 SCC 246, Commr. of Police v. Sandeep Kumar, (2011) 4 SCC 644, Ram Kumar v. State of U.P., (2011) 14 SCC 709, Bank of Baroda v. Central Govt. Industrial Tribunal, (1999) 2 SCC 247, Kamal Nayan Mishra v. State of M.P., (2010) 2 SCC 169, Union of India v. M. Bhaskaram, 1995 Supp. (4) SCC 100, Delhi Admn. V. Sushil Kumar, (1996) 11 SCC 605, Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav, (2003) 3 SCC 437, R. Radhakrishnan v. DG of Police, (2008) 1 SCC 660, Union of India v. Bipad Bhanjan Gayen, (2008) 11 SCC 314, Daya Shankar Yadav v. Union of India, (2010) 14 SCC 103, State of W.B. v. Sk. Nazrul Islam, (2011) 10 SCC 184, the observations of the Hon‟ble Supreme Court in para 29 to 32, 34 to 37 and conclusions in para 38 are pertinent to be noticed:
"29. The verification of antecedents is necessary to find out fitness of incumbent, in the process if a declarant is found to be of good moral character on due verification of antecedents, merely by suppression of involvement in trivial offence which was not pending on date of filling attestation form, whether he may be deprived of employment? There may be case of involving moral turpitude/serious offence in which employee has been acquitted but due to technical reasons or giving benefit of doubt. There may be situation when person has been convicted of an offence before filling verification form or case is pending and information regarding it has been suppressed, whether employer should wait till outcome of pending criminal case to take a decision or in case when action has been initiated there is already conclusion of criminal case resulting in conviction/acquittal as the case may be. The situation may arise for consideration of various aspects in a case where disclosure has been made truthfully of required information, then also authority is required to consider and verify fitness for appointment. Similarly in case of 14 OA No.2878 /2021 Court No.2 (item No.38) suppression also, if in the process of verification of information, certain information comes to notice then also employer is required to take a decision considering various aspects before holding incumbent as unfit. If on verification of antecedents a person is found fit at the same time authority has to consider effect of suppression of a fact that he was tried for trivial offence which does not render him unfit, what importance to be attached to such non-disclosure. Can there be single yardstick to deal with all kinds of cases?
30. The employer is given "discretion" to terminate or otherwise to condone the omission. Even otherwise, once employer has the power to take a decision when at the time of filling verification form declarant has already been convicted/acquitted, in such a case, it becomes obvious that all the facts and attending circumstances, including impact of suppression or false information are taken into consideration while adjudging suitability of an incumbent for services in question. In case the employer comes to the conclusion that suppression is immaterial and even if facts would have been disclosed it would not have adversely affected fitness of an incumbent, for reasons to be recorded, it has power to condone the lapse. However, while doing so employer has to act prudently on due consideration of nature of post and duties to be rendered. For higher officials/higher posts, standard has to be very high and even slightest false information or suppression may by itself render a person unsuitable for the post. However, same standard cannot be applied to each and every post. In concluded criminal cases, it has to be seen what has been suppressed is material fact and would have rendered an incumbent unfit for appointment. An employer would be justified in not appointing or if appointed, to terminate services of such incumbent on due consideration of various aspects. Even if disclosure has been made truthfully, the employer has the right to consider fitness and while doing so effect of conviction and background facts of case, nature of offence, etc. have to be considered. Even if acquittal has been made, employer may consider nature of offence, whether acquittal is honourable or giving benefit of doubt on technical reasons and decline to appoint a person who is unfit or of dubious character. In case employer comes to conclusion that conviction or ground of acquittal in criminal case would not affect the fitness for employment, incumbent may be appointed or continued in service.
31. Coming to the question whether an employee on probation can be discharged/refused appointment though he has been acquitted of the charge(s), if his case was not pending when form was filled, in such matters, employer is bound to consider grounds of acquittal and various other aspects, overall conduct of employee including the accusations which have been levelled. If on 15 OA No.2878 /2021 Court No.2 (item No.38) verification, the antecedents are otherwise also not found good, and in number of cases incumbent is involved then notwithstanding acquittals in a case/cases, it would be open to the employer to form opinion as to fitness on the basis of material on record. In case offence is petty in nature and committed at young age, such as stealing a bread, shouting of slogans or is such which does not involve moral turpitude, cheating, misappropriation, etc. or otherwise not a serious or heinous offence and accused has been acquitted in such a case when verification form is filled, employer may ignore lapse of suppression or submitting false information in appropriate cases on due consideration of various aspects.
32. No doubt about it that once verification form requires certain information to be furnished, declarant is duty- bound to furnish it correctly and any suppression of material facts or submitting false information, may by itself lead to termination of his services or cancellation of candidature in an appropriate case. However, in a criminal case incumbent has not been acquitted and case is pending trial, employer may well be justified in not appointing such an incumbent or in terminating the services as conviction ultimately may render him unsuitable for job and employer is not supposed to wait till outcome of criminal case. In such a case non- disclosure or submitting false information would assume significance and that by itself may be ground for employer to cancel candidature or to terminate services.
33. xx xx xx xx xx
34. No doubt about it that verification of character and antecedents is one of the important criteria to assess suitability and it is open to employer to adjudge antecedents of the incumbent, but ultimate action should be based upon objective criteria on due consideration of all relevant aspects.
35. Suppression of "material" information presupposes that what is suppressed that "matters" not every technical or trivial matter. The employer has to act on due consideration of rules/instructions, if any, in exercise of powers in order to cancel candidature or for terminating the services of employee. Though a person who has suppressed the material information cannot claim unfettered right for appointment or continuity in service but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity having due regard to facts of cases.
36. What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of 16 OA No.2878 /2021 Court No.2 (item No.38) duties, impact of suppression on suitability has to be considered by authorities concerned considering post/nature of duties/services and power has to be exercised on due consideration of various aspects.
37. The "McCarthyism" is antithesis to constitutional goal, chance of reformation has to be afforded to young offenders in suitable cases, interplay of reformative theory cannot be ruled out in toto nor can be generally applied but is one of the factors to be taken into consideration while exercising the power for cancelling candidature or discharging an employee from service.
38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of the aforesaid discussion, we summarise 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 recourses 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.
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 17 OA No.2878 /2021 Court No.2 (item No.38) 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 suppression veri or suggestion falsi, knowledge of the fact must be attributable to him."
11. The position of law prior to Avtar Singh‟s case (supra) has been also referred to in Satish Chandra Yadav v. Union of India and Ors. (supra). Also, the position of law and principles considered in various cases post Avtar Singh (supra) were discussed in Satish Chandra Yadav (supra) (i.e. Union Territory, Chandigarh Administration and Others v. Pradeep Kumar and Another, (2018) 1 SCC 797, State of Madhya Pradesh and Others v. Bunty, (2020) 17 SCC 654, State of Rajasthan and Others v. Love Kush Meena, (2021) 8 SCC 774, Union of India and Others v. Methu Meda, 18 OA No.2878 /2021 Court No.2 (item No.38) (2022) 1 SCC 1, Union of India (UOI) v. Dilip Kumar Mallick, W.P. (C) No.2219/2023 Page 13 of 21 (2022) 6 Scale 108, Pawan Kumar v. Union of India, (2022) SCC OnLine SC 532, Rajasthan Rajya Vidyut Prasaran Nigam Limited and another v. Anil Kanwariya, (2021) 10 SCC 136, Mohammed Imran v. State of Maharashtra and Others, (2019) 17 SCC
696).
It was observed by the Hon‟ble Supreme Court that the reasons to refer and look into various decisions of the Supreme Court arose over a period of time since the principles of law laid in Avtar Singh as governing the subject are bit inconsistent. Further, the broad principles of law which should be made to the litigations of such nature were laid down in para 69 of the judgment and may be beneficially reproduced:
"69. In such circumstances, we undertook some exercise to shortlist the broad principles of law which should be made applicable to the litigations of the present nature. The principles are as follows:
a) Each case should be scrutinised thoroughly by the public employer concerned, through its designated officials-more so, in the case of recruitment for the police force, who are under a duty to maintain order, and tackle lawlessness, since their ability to inspire public confidence is a bulwark to society‟s security. [See Raj Kumar (supra)]
b) Even in a case where the employee has made declaration truthfully and correctly of a concluded criminal case, the employer still has the right to consider the antecedents, and cannot be compelled to appoint the candidate. The acquittal in a criminal case would not automatically entitle a candidate for appointment to the post. It would be still open to the employer to consider the antecedents and examine whether the candidate concerned is suitable and fit for appointment to the post.
c) The suppression of material information and making a false statement in the verification Form relating to arrest, prosecution, conviction etc., has a clear bearing on the character, conduct and antecedents of the employee. If it is found that the employee had suppressed or given false information in regard to the matters having a bearing on his fitness or suitability to the post, he can be terminated from service.
d) The generalisations about the youth, career prospects and age of the candidates leading to condonation of the offenders‟ conduct, should not enter the judicial verdict and should be avoided.
e) The Court should inquire whether the Authority concerned whose action is being challenged acted mala fide.19 OA No.2878 /2021
Court No.2 (item No.38)
f) Is there any element of bias in the decision of the Authority?
g) Whether the procedure of inquiry adopted by the Authority concerned was fair and reasonable?"
12. It is pertinent to note that the Hon‟ble Supreme Court reiterated the principle that the acquittal in a criminal case would not automatically entitle a candidate for appointment to the post and it would still be open to the employer to consider the antecedents and examine if the candidate concerned is suitable and fit for appointment to the post. It was also held that the suppression of material information and making a false declaration in the verification relating to arrest, prosecution, conviction etc. has a clear bearing on the character, conduct and antecedents of the employee and in case the employee had suppressed or given false information, he can be terminated. It was further laid down that the Court should inquire whether the authority concerned whose action is being challenged acted malafide or is there any element of bias in the decision of the authority and whether the procedure of inquiry adopted by the authority concerned was fair and reasonable.
13. It may also be observed that the Hon‟ble Supreme Court in Satish Chandra Yadav (supra) also took note of the judgment passed by the three Judge Bench in Mohammed Imran v. State of Maharashtra and others, (2019) 17 SCC 696 and the observations in para 67 of the judgment are apt to be reproduced:
"67. Thus, this Court took the view that although employment opportunity is a scarce commodity in the present times being circumscribed within a limited vacancies yet by itself may not suffice to invoke sympathy for grant of relief where the credentials of a candidate may raise any question regarding his suitability, irrespective of eligibility. However, at the same time, this Court observed that there should not be any mechanical or rhetorical incantation of moral turpitude to deny appointment in a government service simplicitor which would depend on the facts of each case. The judicial philosophy flowing through the mind of the judges is that every individual deserves an opportunity to improve, learn from the past and move ahead in life for self-improvement. To make past conduct, irrespective of all considerations, may not always constitute justice. It would all depend on the fact situation of the given case."
14. It is imperative to note that the aforesaid broad guidelines/conclusions referred in para 69 by the Hon‟ble Supreme Court in Satish Chandra‟s case in no manner overrule the yardsticks as laid down in Avtar Singh‟s case as reflected in para 38.1 to 38.11 above, which is a three Judge Bench judgment. The broad principles have been laid down 20 OA No.2878 /2021 Court No.2 (item No.38) considering the fact that different courts enunciated different principles over a period of time.
The observations made by the Hon‟ble Supreme Court in para 31 in Avtar Singh v. Union of India (supra) are pertinent to be considered and may be reproduced:
"31. Coming to the question whether an employee on probation can be discharged/refused appointment though he has been acquitted of the charge(s), if his case was not pending when form was filled, in such matters, employer is bound to consider grounds of acquittal and various other aspects, overall conduct of employee including the accusations which have been levelled. If on verification, the antecedents are otherwise also not found good, and in number of cases incumbent is involved then notwithstanding acquittals in a case/cases, it would be open to the employer to form opinion as to fitness on the basis of material on record. In case offence is petty in nature and committed at young age, such as stealing a bread, shouting of slogans or is such which does not involve moral turpitude, cheating, misappropriation, etc. or otherwise not a serious or heinous offence and accused has been acquitted in such a case when verification form is filled, employer may ignore lapse of suppression or submitting false information in appropriate cases on due consideration of various aspects."
15. It is also imperative to point out that in Pawan Kumar v. Union of India (supra), the appeal was directed against the judgment and order passed by the Division Bench of the High Court of Delhi upholding the order of discharge taking recourse to Clause 9(F) of the employment notice read with Rule 67.2 of Railway Protection Force Rules, 1987. In the aforesaid case, the FIR under Section 148/149/323/506/356/ IPC was registered against the appellant on 04.04.2011, the charge-sheet was filed on 13.04.2011 and the appellant was acquitted on 12.08.2011. The aforesaid facts were not disclosed by the appellant when he filled the attestation form on 27.05.2014 with reference to the columns relating to his prosecution and was discharged from the service on 24.04.2015. The case was admittedly not pending when the process of selection was initiated vide employment notice dated 27.02.2011. The appellant therein also incorrectly disclosed the information with reference to the columns relating to arrest/prosecution and the attestation form also contained a warning that furnishing of false information or suppression of any factual information in the attestation form would be a disqualification and is likely to render the candidate unfit for employment under government.
After considering the legal position laid down in Avtar Singh (supra) which was given by a three-Judge Bench, the Hon‟ble Supreme Court in Pawan Kumar (supra) held in para 13 as under:-
21OA No.2878 /2021
Court No.2 (item No.38) "13. What emerges from the exposition as laid down by this Court is that by mere suppression of material/false information regardless of the fact whether there is a conviction or acquittal has been recorded, the employee/recruit is not to be discharged/terminated axiomatically from service just by a stroke of pen. At the same time, the effect of suppression of material/false information involving in a criminal case, if any, is left for the employer to consider all the relevant facts and circumstances available as to antecedents and keeping in view the objective criteria and the relevant service rules into consideration, while taking appropriate decision regarding continuance/suitability of the employee into service. What being noticed by this Court is that mere suppression of material/false information in a given case does not mean that the employer can arbitrarily discharge/terminate the employee from service."
It was further held that the Authority therein had not considered the scope and ambit of Rule 52 of the Railway Protection Post Rules, 1987 that after verification of the character/antecedents of the incumbent it will be an obligation upon the authority to examine as to whether the incumbent/recruit is suitable to become a member of the Force and without appreciation in a mechanical manner confirmed the order of discharge. It was also held that as observed in Avtar Singh‟s case (supra), all matters cannot be put in a straitjacket and a degree of flexibility and discretion vests with the Authorities which must be exercised with care and caution taking all the facts and circumstances into consideration, including the nature and type of offence. The appellant was accordingly directed to be reinstated to the service on the post of Constable on which he was selected.
16. It may also be pointed out that while referring to various cases decided by the Hon‟ble Supreme Court, a reference was also made in Avtar Singh (supra) to a three Judge Bench decision of the Hon‟ble Supreme Court in TS Vasudavan Nair v. Vikram Sarabhai Space Centre, 1988 Supp. SCC 795, which related to non disclosure of conviction in a case registered under the Defence of India Rules for having shouted slogans on one occasion. The three Judge Bench in the aforesaid case held that non disclosure of aforesaid case was not a material suppression on the basis of which employment could have been denied and the person adjudged unsuitable for being appointed as an LDC.
17. In the light of aforesaid legal position, there cannot be any dispute that an applicant participating in the selection process is mandated to furnish the correct information in respect of character and antecedents in the requisite application form as well as attestation/verification form. In case the information is found to be suppressed, concealed or incorrectly declared and later on comes to the knowledge of the employer, appropriate 22 OA No.2878 /2021 Court No.2 (item No.38) recourse may be adopted by the employer in its discretion for cancelling the candidature or terminating the services of the employee. However, the exercise of power has to be in a reasonable manner with objectivity having regards to the facts in each case. The yardstick to be applied depends not only on the nature of the post, duties/services but as well as the nature of criminal involvement i.e. whether it is of trivial nature or otherwise. Even where the employee makes a truthful declaration on a concluded criminal case, the employer still has a right to consider the antecedents and the employer cannot be compelled to employ the candidate.
18. We are of the considered view that keeping in perspective the guidelines as laid down in Avtar Singh (supra), the competent authority in the present case was also bound to consider the suitability of the petitioner having regard to the trivial nature of offence and the fact that the charges were neither grave nor involved moral turpitude, prior to terminating his services. The same is necessary to ensure that inquiry done by the Authority concerned is „fair and reasonable‟ as contemplated even in Satish Chandra‟s case (supra). In the absence of said exercise being undertaken, the fact of suppression or concealment of involvement even in trivial cases would lead to automatic cancelling of candidature or termination of services, in violation of guidelines envisaged in para 38.4.1 as laid down in Avtar Singh‟s case (supra), referred to above.
19. Reverting back to the facts of the present case, admittedly, on the date of filling up of the application form, the petitioner was not involved in any criminal case. Unfortunately, he stood implicated in FIR No.103/2020 dated October 11, 2020 under Section 294/323/506/34 IPC registered at PS: Umraoganj, owing to a family dispute, in which he was acquitted on November 06, 2020 within a short period of about four weeks. The relevant details of involvement in criminal case were concealed while filling the attestation form, which has been considered to be a disqualification rendering the petitioner unfit for employment. It needs to be kept in perspective that the petitioner was not facing any criminal case at the time of filling up of the initial application form. The FIR was registered under Sections 294/323/506/34 IPC only prior to filling up of attestation form, in which he also stood acquitted prior to filling up of the attestation form. The incident on the face of record related to a trivial dispute within the family over raising a wall and stood settled with reference to offences under Section 323/506/34 IPC. Further, the allegations with reference to Section 294 IPC were not supported by the witnesses on presenting of charge-sheet. The false implication in such minor incidents naming all the family members cannot be ruled out considering the tendency in rural background. In the facts and circumstances, the respondents should have considered and examined whether petitioner is suitable and fit for appointment in view of involvement in said case, in which he stood acquitted even prior to filling up the attestation form. The inquiry as to the nature of involvement was required to be fairly conducted 23 OA No.2878 /2021 Court No.2 (item No.38) and the petitioner should not have been automatically held unsuitable for appointment merely on the ground of concealment. The competent authority appears to have failed to consider and give due weight to the trivial nature of offence and was merely swept by the factum of non-disclosure or concealment of involvement in criminal case by the petitioner. The factual position in the present case is distinguishable from Satish Chandra Yadav (supra) since the appellant in said case had concealed the fact of involvement in criminal case under Section 147/323/324/504/506 IPC which was pending at the time of filling the verification form. Also, the second case referred in Satish Chandra Yadav, arising out of SLP (Civil) 5170 of 2021 filed by Pushpendra Kumar Yadav, was dismissed on similar grounds as a case under Section 147/149/323/325/504/506/307 IPC was pending against him as wrong information had been given in the verification form. On the other hand, the factual position in present case is squarely covered by Pawan Kumar v. Union of India (supra).
20. For the foregoing reasons, the order passed by the Tribunal is set aside along with order passed by the respondents terminating the services of thepetitioner. Respondents are accordingly directed to reinstate the petitioner in service with all notional benefits including pay, seniority and other consequential benefits etc. Considering the facts and circumstances, no order as to costs. Pending applications, if any, also stand disposed of."
(ii). Learned counsel for the applicant has also placed reliance on judgment dated 24.04.2019 passed in W.P.(C) No.860/2017 in the case of Shaitain Singh Meena vs. Union of India and anor; the relevant para nos.4,5 & 6 are reproduced as under:-
"4. The Petitioner has averred in the petition that FIR No.21 of 2013 had been registered at Police Station Sadar Hindon on 1st December 2016 against the Petitioner and his brother Kaptan Singh arising out from a land dispute between the family members of the Petitioner and one Tej Singh. In fact, there were cross-cases filed by one party against the other. During the course of the trial, the matters were referred to the Lok Adalat and both parties accepted their respective guilt before the Trial Court.
5. By a judgment dated 1st December 2016 in Criminal Case No.129 of 2013 arising out of the aforementioned FIR 21 of 2013, the Trial Court while convicting the Petitioner and his 24 OA No.2878 /2021 Court No.2 (item No.38) brother for the aforementioned offences gave them the benefit of probation by applying Section 4 of the Probation of Offenders Act, 1958 (‗POA') and directing them to furnish a personal bond of Rs.10,000/- each apart from paying costs of Rs.2,200/-. The trial Court imposed a condition that neither accused would commit any offence for a period of two years thereafter and subject thereto shall get the benefit of Section 12 of the POA. The two-year period has since elapsed and in the interregnum there has been no criminal case involving the Petitioner.
6. In response to the notice issued in the present petition, the Respondents have filed a counter affidavit inter alia taking the plea that release of the Petitioner under Section 4 of the POA ‗would not obliterate the conduct/act which constituted the offence, for which he has already been convicted.' The stand is that Section 12 POA ‗would not take away the effect of conviction for the purposes of employment in Government service.' 7 to 15.
15.1 A third decision, again by a DB of this Court, is dated 29th August 2016 in W.P. (C) 7623 of 2016 (Anju Devi Jatav v. Addl. Deputy Commissioner of Police). The facts there were that the candidature of the Petitioner for the post of Constable (Executive) Female in the Delhi Police was cancelled on account of her failure to disclose in the attestation form the fact of registration of an FIR against her for the offences punishable under Sections 147, 323 and 341 IPC.
15.2 After the Tribunal dismissed her petition, she filed a writ petition in this Court. It was noticed that after the filling up of her application form and prior to the filling up of the attestation form, the above FIR was registered and by an order dated 19th November 2013 the trial Court convicted the Petitioner for the above offences. However, she was extended the benefit of Section 3 POA and was released on probation. It was directed that she would be entitled to the benefit of Section 12 POA.
15.3. This Court in Anju Devi Jatav (supra) reversed the Tribunal's order after noticing the decision of the Supreme Court in Avtar Singh v. Union of India (2016) 8 SCC 471 as well as the Standing Order No. 398 of 2010 issued by the Delhi Police which set out the ‗Policy for deciding cases of candidates provisionally selected in Delhi Police involved in criminal cases (facing trial or acquitted)'. This Court took note inter alia of clause (9) of the rules laid down in the said Standing Order which stated: ―If any candidate is discharged by extending the benefit of Probation of Offenders Act, 1958 this will also not be viewed adversely by the department for his/her suitability for government service.‖ 15.4 This Court held:25 OA No.2878 /2021
Court No.2 (item No.38) ―Having regard to the facts involved of the present case and also taking into consideration that the matter was settled before the Lok Adalat and also that the Sections invoked in the FIR do not fall within the purview of ‗moral turpitude', prima facie, it is clear that the dispute was trivial in nature between the neighbours and family members of the petitioner.
15.5 A direction was issued that the Petitioner would make a fresh representation which would then be considered by the Respondents in light of the legal position explained in the decisions discussed in the judgment.
16. The above three decisions of the DB explain the legal position as regards grant of the benefit of probation and consequently Section 12 POA even while convicting a person.
The object of Section 12 POA is to remove the disqualification attaching to the conviction. Another factor to be noted is that in each of the above three decisions, there was an additional issue regarding non-disclosure by the Petitioners of their involvement in the criminal case. Yet, that did not come in the way of their being held not disqualified for appointment to the respective posts in government service.
17 to 18.2 xxxx 18.3 The Petitioner approached the Central Administrative Tribunal which dismissed his application holding that Section 12 of the POA would not wipe away his conviction. While dismissing the petition of the Petitioner challenging the Tribunal's order, this Court referred to the decisions in Harichand v. Director of School Education (supra) and of this Court in Satraj Singh v. Union of India (supra) and Sushil Kumar Singhal v. The Regional Manager, Punjab National Bank 2007 IX AD (Delhi) 241 and concluded that Section 12 POA would not come to the rescue of the Petitioner. The Court noted that the Petitioner was seeking appointment as Constable which post required ‗utmost integrity, propriety and character.' 18.4 The aforementioned decision is distinguishable not only on account of the post for which the Petitioner was seeking appointment viz., Constable (Executive) in the Delhi Police but also on account of the offence for which he was convicted i.e. under Section 308 IPC. As far as the present case is concerned, the conviction resulted from a dispute relating to land between two families who had filed cross cases against each other. The offences involved could not be termed serious which is why it was possible for them to settle the disputes and go before the Trial Court which recorded that fact and gave the benefit of probation to the Petitioner and his brother. Secondly, the post for which the Petitioner is seeking appointment is that of a Limb Maker Carpenter at the ALC. This is nowhere comparable to the post of Constable in the Delhi Police. Thirdly, the DB which decided Ajit Kumar did not take note of the 26 OA No.2878 /2021 Court No.2 (item No.38) decision of the co-ordinate Bench in Commissioner of Police v. Jagjeevan Ram (supra) where even for a post of Constable this Court was prepared to extend the benefit of the POA. 18.4 Consequently, the Court is unable to be persuaded that the decision of this Court in Ajit Kumar v. Commissioner of Police (supra) would apply to the facts of the present case. On the other hand, the Court finds that the present case is more or less on similar lines as Vakil Kumar Meena (supra) and on an even better footing since in the present case there is no failure by the Petitioner to disclose the fact of pendency of the criminal case.
19. As already noticed hereinbefore the Respondent is seeking to use the conviction of the Petitioner for evidently non-serious offences to disqualify him for appointment in government service by ignoring the fact that he has been released on probation thereby defeating the very object of the Section 12 POA. The Court is, therefore, not able to accept the submission of the Respondents that the conviction of the Petitioner in the aforementioned case would come in the way of his being appointed to the post of Limb Maker Carpenter in the ALC notwithstanding Section 12 POA.
20. For the aforementioned reasons, this Court sets aside the decision of the Respondents to cancel the candidature of the Petitioner, as communicated to him by the impugned communication dated 18 th January 2017. A direction is issued to the Respondent No.1 to pass an appropriate order appointing the Petitioner to the post of Limb Maker Carpenter in the ALC within a period of 12 weeks from today. The petition is allowed in the above terms but in the circumstances with no order as to costs."
9. The learned counsel for the respondents has also relied upon the following judgments: -
(i) In case of Ex-Const/Dvr Mukesh Kumar Raigar vs. Union of India & Ors; Special Leave Petition (Civil) No. 10499 of 2022 decided by the Hon‟ble Supreme Court on 16.01.2023; the Hon‟ble Supreme Court of India has held as under:-27 OA No.2878 /2021
Court No.2 (item No.38) "13. In view of the afore-stated legal position, we are of the opinion that the Division Bench of the High Court had rightly set aside the order passed by the Single Bench, which had wrongly interfered with the order of removal passed by the respondent authorities against the petitioner. The petitioner having been found to have committed gross misconduct right at the threshold of entering into disciplined force like CISF, and the respondent authorities having passed the order of his removal from service after following due process of law and without actuated by malafides, the court is not inclined to exercise its limited jurisdiction under Article 136 of the Constitution.
14. In that view of the matter the SLP is dismissed.
(ii) In Satish Chandra Yadav vs. Union of India; Arising out of Special Leave Petition (Civil) No. 20860 of 2019, decided by the Hon‟ble Supreme Court on 26.09.2022; the Hon‟ble Supreme Court of India has held as under: -
"77. Indisputably, Satish Chandra Yadav was still under probation at the time, his services had been terminated. It is also apparent from the record that Satish Chandra Yadav had been given appointment on probation subject to the verification of facts given in the verification Form. To our mind, therefore, if an enquiry revealed that the facts given were wrong, the respondent herein was at liberty to dispense with the services of the appellant Satish Chandra Yadav as the question of any stigma and penal consequences at this stage would not arise. It bears repetition that what has led to the termination of the services of the appellant Satish Chandra Yadav is not his involvement in the criminal case which was then pending, and in which he had been acquitted subsequently but the fact that he had withheld relevant information while filling in the verification Form. He could be said to have exhibited or displayed such a tendency which shook the confidence of the respondent.
78. Administrative law has traditionally approached the review of decisions classified as discretionary separately from those seen as involving the interpretation of rules of law. The rule has been that the decisions classified as discretionary may only be reviewed on limited grounds such as the bad faith of decision-makers, the exercise of discretion for an improper purpose, and the use of irrelevant considerations. A general doctrine of "unreasonableness" has also sometimes been applied to the discretionary decisions. In our opinion, these doctrines incorporate two central ideas -- those discretionary decisions, like all other administrative decisions, must be made within the bounds of the jurisdiction conferred by the statutory rules, but that considerable deference will be given to the decision- makers by the courts in reviewing the exercise of that discretion and determining the scope of the decision-makers' jurisdiction. These doctrines recognise that it is the intention of a legislature, when using statutory language that confers broad choices on the administrative agencies, that courts should not lightly interfere with such decisions, and should give considerable respect to the decision-makers when reviewing the manner in which discretion was exercised. However, discretion must still be exercised in a manner that 28 OA No.2878 /2021 Court No.2 (item No.38) is within a reasonable interpretation of the margin of manoeuvre contemplated by the legislature, in accordance with the principles of the rule of law.
79. Ms. Madhavi Divan, the learned ASG has rightly relied on Kendriya Vidyalaya Sangathan (supra) in which this Court held that the purpose of requiring an employee to furnish information regarding prosecution/conviction, etc. in the verification Form was to assess his character and antecedents for the purpose of employment and continuation in service; that suppression of material information and making a false statement in reply to the queries relating to prosecution and conviction had a clear bearing on the character, conduct and antecedents of the employee; andthat where it is found that the employee had suppressed or given false information in regard to the matters which had a bearing on his fitness or suitability to the post, he could be terminated from service during the period of probation without holding any inquiry. This Court also made it clear that neither the gravity of the criminal offence nor the ultimate acquittal therein was relevant when considering whether a probationer who suppresses a material fact (of his being involved in a criminal case, in the personal information furnished to the employer), is fit to be continued as a probationer.
80. We find that the observations in the aforesaid case are fully applicable to the appeal filed by Satish Chandra Yadav. We are of the opinion that it was a deliberate attempt on the part of the appellant Satish Chandra Yadav to withhold the relevant information and it is this omission which has led to the termination of his service during the probation period.
81. In view of the aforesaid, the Appeal arising out of the Special Leave Petition (C) No. 20860 of 2019 filed by Satish Chandra Yadav fails and is hereby dismissed."
10. The following facts are not in dispute: -
i). The verification form was filled up by the applicant on 23.08.2021.
ii). A case was registered against the applicant vide C.No. 133/2018 for the offences punishable under Section 323 & 341 of the IPC.
iii). Applicant‟s case was decided by learned Distt. And Session Court, Gram Nyaylaya, Dausa, Rajasthan. Though the applicant was convicted but was extended benefits of Section 12 of the Probation of Offenders Act on 04.12.2019.29 OA No.2878 /2021
Court No.2 (item No.38)
iv). The applicant applied and qualified mandatory examination for the post of MTS in Customs, Excise and Services Tax Appellate Tribunal.
v). Offer of appointment was issued to the applicant on 30.7.2021. The offer of appointment was subject to verification of Character and antecedents though police authorities.
vi). Supdt. of Police vide letter dated 8.10.2021 issued verification report to Deputy Registrar Customs Excise and Service Tax Appellate Tribunal West Block No. 2, R.K. Puram, New Delhi.-110066.
vii). At the time when the services of the applicant came to be terminated, he was a probationer.
11. While filling up the attestation form on 23.08.2021, the applicant has filled up the following details by ticking the details and has selected „No‟. regarding the information pertaining to the criminal case(s). For ready reference, Item no.12 is reproduced herein below: -
"12 (a) Have you ever been arrested? Yes/No ✔ 30 OA No.2878 /2021 Court No.2 (item No.38)
(b) Have you ever been prosecuted? Yes/No ✔
(c) Have you ever been kept under detention? Yes/No ✔
(d) Have you ever been bound down? Yes/No ✔
(e) Have you ever been fined by a Court of Law? Yes/No ✔
(f) Have you ever been convicted by a Court of law for any offence? Yes/No ✔
(g) Have you ever been debarred from any Examination or restricted by any University or any other educational authority/ institution? Yes/No ✔
(h) Have you ever been debarred/disqualified by any Public Service Commission/Staff Selection Commission for any of its examination/selection? Yes/No ✔
(i) Is any case pending against you in any Court of Law at the time of filling up this Attestation Form? Yes/No ✔
(j) Is any case pending against you in any University or any other educational authority/institution at the XXXX."
12. In view of the law laid down in judgment dated 10.03.2023 by the Hon‟ble High Court of Delhi in W.P.(C) No. 2219/2021 in Mahendra Solanki vs. The Commissioner of Police & Anors., it is made clear that in the cases of suppression, if in the process of verification of information, certain information comes to notice then also the employer is required to take a decision considering the various aspects before holding the incumbent as unfit. If on verification of antecedents, a person is found fit at the same time, the authority has to consider the special effect of a fact that he was tried for trivial offences which does not 31 OA No.2878 /2021 Court No.2 (item No.38) render him unfit, what importance to be attached to such non-disclosure? Can there be use a single yardstick to all kind of cases. In case, the employer comes to the conclusion that suppression is immaterial and even if a fact would have been disclosed it would not have adversely affected fitness of an incumbent, for reasons to be recorded, it has power to condone the lapses. However, while doing so the employer has to act prudently on due consideration of nature of course and duties to be rendered. For higher official / higher post(s), standard has to be verified and even slightest false information on suppression whereby itself rendered a person on suitable for the post. However, same standard cannot be applied to each and every post. In concluded criminal cases, it has to be seen what has been suppressed is immaterial facts and would have been rendered incumbent unfit for appointment.
13. The another important point mentioned is whether the employee on probation can be discharged / revised the appointment though he has been acquitted of the charge (s), if his case was not pending 32 OA No.2878 /2021 Court No.2 (item No.38) when form was filled, in such matters the employer is bound to consider grounds of acquittal and various aspects, overall conduct of an employee including acquisition which have been leveled. If on verification, the antecedents are otherwise are also not found good and a number of cases incumbent involved then notwithstanding acquittal in case(s), it would be open to the employer to inform on the basis of material of records. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by the authority concerned considering the posts/ nature of duties/ services and power has to be exercised on various aspects.
14. The applicant was appointed to the post of MTS which is considered to be lower post. The applicant has not come for adverse notice after the incident in which case No. 39/2018 dated 17.01.2018 under Section 323, 341 was registered against him in Dausa District for which charge sheet no. 28/2018 was filed. The learned Court on 04.12.2019, released the applicant under Provisions of Probation of Offences 33 OA No.2878 /2021 Court No.2 (item No.38) Act. Considerable time has passed and there is no been any report of a repeat offence by the applicant. It is correct that the applicant has suppressed the information while filling up of the attestation form and there cannot be any dispute that the applicant has participated in the selection process and is mandated to furnish the correct information in respect of character and antecedents in the requisite application form as well as attestation /qualification form. In case, the information found to be incorrect, concealed or incorrectly declared and later on come to the knowledge of the employer, appropriate recourse could be adopted by the employer in its discretion for cancelling the candidature or terminating the services of the employee. However, the exercise of power has to be in a reasonable manner with objectivity having regard to the facts in each case. The yardstick to be applied depends upon not only on the nature of post, duties/services but as well as the nature of criminal involvement i.e. whether it is trivial nature or otherwise. It is well settled position of law that even where the employee makes truthful declaration on a 34 OA No.2878 /2021 Court No.2 (item No.38) concluded criminal case, the employer still has a right to consider the antecedents and the employer cannot be compel to an employee or a candidate.
15. We are of the considered view that keeping in perspective, the law laid down in judgment dated 10.03.2023 in Mahendra Solanki vs. Commissioner of Police (supra) case in W.P.(C) No.2219/2023 and the guidelines laid down in Avtar Singh (supra) case, the competent authority in the present case should also have applied such laid down criteria to adjudge the suitability of the applicant prior to terminating the services despite being suppression of information by him (applicant) while filling up of attestation form. This was important in view of the trivial nature of offences and the facts that the charges were neither grave or nor involving moral turpitude The same was necessary to ensure that the inquiry run by the authority concerned is fair and reasonable as contemplated in Satish Chandra's case(supra). In the absence of the said exercise, the fact of suppression/ concealment of involvement in criminal cases and terminating the 35 OA No.2878 /2021 Court No.2 (item No.38) services of the applicant is in violation to the guidelines envisaged in case of Avtar Singh and Mahendra Solanki (supra) cases.
16. For the foregoing reasons, OA is allowed. The order dated 29.10.2021 (Annexure A-1) passed by the respondents terminating the services of the applicant is set aside. The respondents are directed to reinstate the applicant in service with all consequential benefits including pay, seniority and other notional benefits etc. The above exercise shall be completed by the respondents within a period of ten weeks from the date of receipt of a certified copy of this order.
17. No order as to the costs. Pending MAs, if any, stand closed.
(Rajinder Kashyap) (R. N. Singh)
Member (A) Member (J)
/mk/