Madhya Pradesh High Court
The State Of Madhya Pradesh vs Gore Lal Sharma on 13 April, 2017
WA-102-2017
(THE STATE OF MADHYA PRADESH Vs GORE LAL SHARMA)
13-04-2017
Shri Vishal Mishra, Additional Advocate General for the State/the
appellants.
Shri G.S.Sharma, Counsel for the respondent.
Heard on I.A.No. 897/2017, an application for condonation of delay in filing the appeal.
It appears that much time was exhausted by the officers of the State in getting the sanction to file an appeal and, therefore, the delay of 78 days has been caused. Looking to the reasons mentioned in the application, it would be appropriate to hear the matter on merits. Consequently, the delay of 78 days in filing the appeal is hereby condoned.
Heard learned counsel for the parties.
State has preferred the present writ appeal against the order dated 19.8.2016 passed by Single Bench of this Court in Writ Petition No.6151/2013, whereby the order dated 19.8.2013, Annexure P/1-A in the writ matter, was quashed and the State was directed to appoint the respondent to the post of Constable. The facts of the case, in short, are that the respondent was found selected to the post of Constable but one criminal case was pending against him in which he was acquitted on the basis of compromise, which took place between the parties and, therefore, the officers of the State found him unsuitable for appointment and the order dated 19.8.2013, Annexure P/1-A, was passed. The respondent challenged that order by way of a writ petition. After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances, it appears that the present appeal depends upon the judgment passed by the Apex Court in case of 'Avtar Singh vs. Union of India and others' [(2016) 8 SCC 471], in which the guidelines are given to deal such matters. Para 38 to 38.11 are hereby reproduced as under so that the guidelines given by the Apex Court may be followed :-
â38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize our conclusion thus:
38.1. Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information. 38.2. While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information. 38.3. The employer shall take into consideration the Government orders/ instructions/rules, applicable to the employee, at the time of taking the decision. 38.4. In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/ verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted : 38.4.1. In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
38.4.2. Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee. 38.4.3. If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.
38.5. In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate. 38.6. In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case. 38.7. In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.
38.8. If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.
38.9. In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form. 38.10. For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
38.11. Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him.â After considering the judgment passed by the Apex Court in the case of Avtar Singh (supra), specially according to the guideline in para 38.1, it appears that the guidelines mainly deal with the case where the candidate had suppressed the information relating to criminal case or he gave a false information. In present matter, the respondent has given the details of the case which was prosecuted against him and thereafter he was acquitted. Under these circumstances, the guidelines provided in the case of Avtar Singh (supra) cannot be exactly followed in the present case.
Also if guidelines No.38.4.3 and 38.5 are considered then in case of acquittal right is given to the employer to consider the nature of case and to examine as to whether the acquittal was done on the technical grounds or it was a case of clean acquittal. In the present case, the respondent was acquitted on the basis of compromise and the charges which were framed against the respondent were compoundable. Hence, it cannot be said that the respondent was acquitted on technical grounds. If the complainant has no grievance and a compromise took place between the parties then it cannot be said that acquittal on the basis of compromise is an acquittal on technical basis. Similarly, the offence under Section 325 or 323 of IPC was not an offence of moral turpitude and, therefore, if the respondent was acquitted from a criminal case, which was registered against him, on the basis of compromise then he could not be denied from his appointment. It is true that according to the aforesaid guidelines No. 38.4.3 and 38.5, a discretion was given to the employer to consider the nature of the case and technicality of the acquittal of a candidate but such discretion should be used judiciously. The employer cannot use its discretion arbitrarily. In the present case, when the respondent was acquitted of the various offences which were compoundable, on the basis of compromise and those offences were not of moral turpitude nature, it was not appropriate for the employer to deny the appointment of the respondent as Constable.
Under these circumstances, there is no illegality or perversity visible in the order passed by the Writ Court. Hence, the appeal filed by the State cannot be accepted. Consequently, the same is hereby dismissed.
(N.K. GUPTA) (SUNIL KUMAR AWASTHI)
JUDGE JUDGE
yog