Jammu & Kashmir High Court - Srinagar Bench
Masood Ahmad Lone vs Union Of India And Others on 29 September, 2021
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
h475
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
SWP No.2355/2018
Reserved on : 16.09.2021
Pronounced on : 29.09.2021
Masood Ahmad Lone ...Petitioner(s)
Through:- Ms. Arifa Jan, Advocate
V/s
Union of India and others ...Respondent(s)
Through:- Ms. Nazima Yaqoob, Advocate vice
Mr. T.M.Shamsi, ASGI
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
1. The petitioner in this petition prays for the following reliefs:-
"i. By issuance of writ, order or direction one in the nature of certiorari, that the impugned order bearing No.13Bn/I-E-Resi- dismissal/10-11/16430-46 dated 13-10-2011 be quashed.
ii. By issuance of writ, order or direction one in the nature of certiorari, that the order bearing No.15919-23 dated 22 June 2018 be quashed.
iii. By issuance of writ, order or direction one in the nature of Mandamus, commanding the respondents to release the salary and other emoluments of the petitioner with all consequential service benefits."
FACTUAL MATRIX
2. The petitioner was appointed to the post of Constable (GD) in Sashastra Seema Bal (SSB) on 01.10.2010 and was posted to 13 th Bn 2 SWP No.2355/2018 Pirprakothi (Bihar). The petitioner underwent recruit basic training w.e.f. 01.10.2010 to 14.07.2011 at 44 Bn/TC Gorakhpur (U.P.). The appointment of the petitioner was subject to fulfillment of certain terms and conditions as prescribed in the offer of appointment. Such terms of appointment, inter alia, included a condition that verification of character and antecedents would be carried out immediately on joining the service from the concerned district administration and in the event of furnishing false or incorrect information at the time of enrollment or any facts or statement mentioned by the candidate in the verification form being found false or incorrect or any adverse finding is reported against him, his service shall be liable to be terminated without assigning any reason. Accordingly, the verification of character and antecedents of the petitioner was carried out through District Magistrate, Bandipora (J&K), who, vide his letter No.DMB/VB/2011/177 dated 14th June, 2011 informed the respondents that a case FIR No.20/2008 under Sections 148, 341 and 323 RPC had been registered against him in the Police Station, Gurez (J&K), which was pending trial before the competent court of law. The petitioner was issued a show cause notice for having furnished false/incorrect information and after receiving explanation from the petitioner, the petitioner was dismissed from service in terms of the impugned order dated 13.10.2011 with immediate effect.
3. Aggrieved by order dated 13.10.2011, the petitioner filed SWP No.2401/2011, which was disposed of by this Court vide order and judgment dated 06.04.2018 by giving liberty to the petitioner to file a representation justifying his claim for re-consideration of the termination 3 SWP No.2355/2018 order on the basis of subsequent event, namely, acquittal in the criminal case and seeking consideration in terms of paragraph No.38.4.1 of Avtar Singh v. Union of India and others, (2016) 8 SCC 471. Representation, if made by the petitioner, was directed to be considered and disposed of within a period of four weeks.
4. Pursuant to the aforesaid judgment, the representation of the petitioner was considered by the respondents in the light of judgment of the Supreme Court in the case of Avtar Singh (supra) and in terms of the impugned order dated 22nd June, 2018, the same was found devoid of merit and was, accordingly, rejected. It is this order of rejection, which has brought the petitioner yet again to this Court through the medium of instant petition.
GROUNDS OF CHALLENGE
5. Impugned order of consideration dated 22nd June, 2018 passed in compliance with the directions of this Court is assailed on the following grounds:-
i) That the respondents have not correctly appreciated the ratio of the judgment of the Supreme Court rendered in the case of Avtar Singh (supra), in particular paragraph No.38.4.1 and, therefore, have erred in rejecting the claim of the petitioner. The impugned order dated 22nd June, 2018 is not in conformity with the directions passed by this Court while disposing of SWP No.2401/2011.4 SWP No.2355/2018
ii) That the respondents have not appreciated that the involvement of the petitioner in FIR No.20/2008 was with respect to the offences trivial in nature and that the petitioner at the time of alleged occurrence was only 22 years of age and, therefore, mere registration of FIR, which ultimately ended in clean acquittal of the petitioner, could not have been made the basis to dismiss the petitioner from service.
iii) That the respondents have not correctly appreciated the judgment of acquittal passed by the trial court in proper perspective, in that, the judgment clearly and cleanly acquits the petitioner and is not by way of giving any benefit of doubt, as is observed by the respondents in the impugned order.
RESPONSE OF THE RESPONDENTS
6. Countering the grounds of challenge urged by the petitioner, the respondents in their reply affidavit rely heavily on the reasoning given in the impugned order dated 22nd June, 2018 to reject the claim of the petitioner for revisiting the order of termination and reinstating him back in service. The rejection of claim of the petitioner is sought to be justified on the ground that the petitioner at the time of applying for the post submitted an undertaking that if an adverse report against him comes to the notice of the respondents during the course of police verification, his service may be terminated without assigning any reason and that the petitioner also made a false declaration that he was not involved in any criminal case. The respondents have further justified the rejection of claim of the petitioner on 5 SWP No.2355/2018 the ground that offence of rioting armed with deadly weapons punishable under Section 148 RPC with which the petitioner was charged cannot, by any stretch of reasoning, be called an offence of trivial in nature so as to attract paragraph No.38.4.1 of the judgment of Avtar Singh (supra). ANALYSIS
7. Having heard learned counsel for the parties and perused the record, I am of the view that the impugned order of consideration dated 22 nd June, 2018 is not inconformity with the directions passed by this Court dated 6 th April, 2018 while disposing of SWP No.2401/2011. At this juncture it is appropriate to reproduce the operative portion of the judgment dated 6th April, 2018, which reads thus:-
"In this view of the above legal position, the present writ petition stands disposed of giving liberty to the petitioner herein to make a representation justifying his claim for re-consideration of the termination order on the basis of the subsequent event namely the acquittal in the criminal case and seeking consideration in terms of paragraph No.38.4.1 of Avtar Singh v. Union of India & Ors (2016) 8 SCC471. Such representation if made shall be considered and disposed of within a time frame preferably within a period of four weeks."
8. In view of the aforesaid directions of this Court, it was incumbent upon the respondents to revisit the termination of the petitioner in the light of his acquittal in the criminal case in FIR No.20/2008 and for doing so, it was necessary to go through the judgment of acquittal in its entirety to find out as to whether it was a case of clean acquittal or that the petitioner had 6 SWP No.2355/2018 been given the benefit of doubt. The respondents seem to have given only a cursory glance to the judgment. I have gone through the judgment of acquittal passed by the Judicial Magistrate 1 st Class, Gurez, which though not on record was passed on by the learned counsel for the petitioner and find that the petitioner has been given clean acquittal by the trial court and not the benefit of doubt. Copy of judgment of acquittal dated 27 th September, 2012 passed on by the learned counsel for the petitioner is taken on record and marked as "K". There is also no indication in the judgment of acquittal that the witnesses did not turn up to depose against the petitioner for fear of reprisal as is observed by the respondents in the impugned order dated 22nd June, 2018.
9. A careful reading of the judgment of acquittal would indicate that as per prosecution witness No.1, at whose instance the FIR was registered in Police Station, Gurez, a minor scuffle between him and accused Gh. Wani had occurred on the day of polling in which nobody was injured. He has not even named the petitioner as an accused who was present during scuffle. The other prosecution witnesses have not supported the prosecution version and have, thus, been declared hostile. None of the witnesses that were examined before the trial court have deposed that the petitioner along with others, armed with deadly weapons, had resorted to rioting so as to attract the offence punishable under Section 148 RPC. Other offences like Sections 341 and 323 RPC are indisputably the offences of trivial in nature. The respondents have not considered the claim of the petitioner in right perspective. Para 38.4.1 of Avtar Singh's judgment (supra) puts the matter 7 SWP No.2355/2018 of this nature in the discretion of the employer and suggests that the employer having regard to the trivial nature of the offence and the age of the employee may ignore such suppression of fact or false information.
10. Undoubtedly and indisputably, the petitioner has suppressed information with regard to registration of an FIR against him and the challan pending in the competent court of law. The petitioner submits that he did not make such disclosure in the application on the ground that he had been given a clean chit certificate by the S.H.O. concerned.
11. Be that as it may, the fact remains that there is suppression of fact on the part of petitioner and such suppression may have been made for fear of rejection of candidature. In any case, the appointment offered to the petitioner was subject to thorough verification of his character and antecedents and in view of the clear stipulation in the order of appointment, his service was liable to be terminated on disclosure of any adverse report against the petitioner on such verification. This position cannot be disputed, however, Hon'ble Supreme Court in the case of Avtar Singh (supra) took host of factors into consideration and summarized its conclusion in paragraph No.38 of the judgment, which, for facility of reference, is reproduced hereunder:-
"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.8 SWP No.2355/2018
38.2. While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.
38.3. The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
38.4. In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted : -
38.4.1. In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
38.4.2. Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
38.4.3. If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.9 SWP No.2355/2018
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 10 SWP No.2355/2018 information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
38.11. Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."
12. For consideration to be accorded to the case of the nature of the petitioner, paragraph No.38.4.1 of Avtar Singh (supra) is required to be read along with paragraph Nos.38.4, 38.4.2, 38.4.3 and 38.5. To reach at a fair and just conclusion, the petitioner's case cannot be considered under paragraph No.38.4.1 of the judgment in isolation.
13. The reliance of the respondents on the policy guidelines for considering such cases issued by the Ministry of Home Affairs vide its Memo dated 01.02.2012 is also misplaced. The offences under Sections 148, 323 and 341 are not the offences enlisted in Annexure-A appended with the memo and, therefore, the respondents are not obliged to reject the candidature of the petitioner, even if the circumstances do not warrant such action. Otherwise also, from a plain reading of the charge against the petitioner and the facts recorded in the judgment of acquittal, it clearly transpires that it was not even the case of rioting punishable under Section 148 RPC.
11 SWP No.2355/2018CONCLUSION
14. Be that as it may, I am of the considered view that the consideration accorded by the respondents to the claim of the petitioner is not in conformity with the judgment of this Court nor the same is in consonance with the broad principles for dealing with such cases laid down in Avtar Singh's case (supra).
15. This petition is, accordingly, allowed. The impugned order of consideration dated 22nd June, 2018 is quashed. The respondents are directed to re-consider and re-visit the order of termination of the service of the petitioner in the light of observations made hereinbefore and pass appropriate orders within a period of eight weeks from the date a copy of this order is served upon the respondents. The respondents shall do well, if they take a compassionate view in the matter and provide the petitioner an opportunity to serve the nation instead of leaving him to fend for himself in the present day of turmoil in the valley. Having said so, the Court leaves it to the good conscious of the respondents to take an appropriate decision in the matter.
(Sanjeev Kumar) Judge Srinagar.
29.09.2021 Vinod.
Whether the order is speaking : Yes Whether the order is reportable: Yes