Allahabad High Court
Raj Kumar vs Union Of India & Others on 1 March, 2017
Author: Dilip Gupta
Bench: Dilip Gupta, Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No.39 Case :- SPECIAL APPEAL No. - 1084 of 2003 Appellant :- Raj Kumar Respondent :- Union Of India & Others Counsel for Appellant :- Arvind Srivastava Counsel for Respondent :- C.S.C.,B.N. Singh,Krishna Deo Rai,Krishnaji Shukla,S.C. Mishra,S.S.C./2003/2512 Hon'ble Dilip Gupta, J.
Hon'ble Siddhartha Varma, J.
This Special Appeal has been filed under Chapter VIII Rule 5 of the Allahabad High Court Rules for setting aside the judgment dated 26 September 2003 of a learned Judge of this Court by which Writ Petition No.9080 of 2003 that was filed by the appellant was dismissed.
The petition had been filed to assail the order dated 17 January 2003 passed for dismissal from service of the appellant who had earlier been enrolled as a Constable in the Border Security Force on 5 March 2002 for the reason that he had made a false declaration in the enrollment form submitted at the time of enrollment that he had not been arrested. It was specifically stated in the enrollment form that if after the enrollment it was found that the applicant had willfully given a false answer to any of the first 12 questions contained in Part-A, he could be punished as provided under the Border Security Forces Act, 1968.
Question No.12 contained in the enrollment form is as follows :
"Have you ever been arrested, prosecuted, convicted, imprisoned, bound over, interned externed or other dealt with under any law in force in India or outside. If so state particulars ?"
The appellant specifically stated 'No'.
The appellant completed his training in the month of December 2002 and he was posted as a Constable in the 14th Battalion Punjab. The information supplied by the appellant was sent for verification. The District Magistrate on verification of the information contained in the enrollment form, reported that Case Crime No.518 of 2001 under sections 325, 323, 504 of the Indian Penal Code, 1860 was pending against the appellant. This information was furnished by the District Magistrate on the basis of the report dated 22 May 2002 submitted by the Senior Superintendent of Police, Gorakhpur. The appellant was tried by Summary Security Force Court on 17 June 2003 for an offence committed by him under section 23 of the Act for willfully giving a false answer. The appellant was found guilty of the said charge and was, accordingly, dismissed from service.
Sri Arvind Srivastava, learned counsel appearing for the appellant submitted that the report submitted by the District Administration against the appellant is incorrect as it was his brother against whom the criminal case had been registered. It is, therefore, his submission that the appellant had not furnished any incorrect information. Learned counsel also submitted that in any case the appellant should not have been dismissed from service for not providing the correct information in the enrollment form.
The learned Judge rejected the claim of the appellant that the brother of the appellant and not the appellant was involved in the criminal case. The finding recorded by the learned Judge is as follows :
"Counsel for petitioner took pains in trying to establish from the aforesaid documents and from the supplementary affidavit that Ram Laut had three sons and that Pappu is petitioner's brother and that Raj Kumar has been wrongly described as 'Pappu'. He submits that it is case of false identity.
I have gone through the Kutumb Register, first information report, charge-sheet, application, parchas prepared by the Investigating Officer who also took statement of Raj Kumar alias Pappu. Although the accused denied the allegations against them, the fact that Raj Kumar son of Ram Laut is an accused and was granted bail and has been charge-sheeted in the aforesaid crime, cannot be doubted. The report of Senior Superintendent of Police and the District Magistrate are specific about the identity of petitioner as an accused in the aforesaid crime."
It is seen from the records that the District Magistrate had been directed to file his personal affidavit in the Writ Petition. Paragraph 8 of the affidavit of the District Magistrate, which is relevant, is reproduced below :
"8. That in reply to the contents of paras 9 and 10 of the writ petition are not admitted in the manner stated therein. In this regard it is stated that the respondent no.4 vide letter dt. 27th March, 2002 which is annexure-3 to the writ petition directed tht answering respondent to verify the Character and Antecedents of Sri Raj Kumar, the petitioner and to submit a report to him. Acting upon the aforesaid letter of the respondent no.4, the then District Magistrate the then S.S.P. Gorakhpur to get the character and the Antecedents of Raj Kumar son of Ram Lautan be verified through the police and L.I.U. personnel and submit a report. Accordingly the character and Antecedents of the petitioner Sri Raj Kumar S/o Ram Lautan were verified by the police and the L.I.U. And on their basis a report dt. 22.5.2002 was submitted by the then S.S.P. Gorakhpur to the then District Magistrate, Gorakhpur. On the basis of the aforesaid report of the then S.S.P. Gorakhpur, the then District Magistrate, Gorakhpur submitted a verification report to the respondent no.4 vide his letter dated 6th June, 2002. A true copy of the whereof has been filed as Annexure-4 to the writ petition. However, a photostat copy of the report of the S.S.P. Gorakhpur dt. 22.5.2002 is being filed herewith as Annexure-C.A.1. From the aforesaid report of the S.S.P. Gorakhpur it is quite clear that a criminal case being case crime no.518/2001 was registered against the petitioner and the same was investigated and is pending against him alongwith his report/letter dated 6th June, 2002 the then District Magistrate has also forwarded the report of the police and L.I.U. to the respondent no.4.
The affidavit also mentions that during the course of investigation, it was found that Pappu @ Raj Kumar and not Pappu @ Joginder, as alleged by the appellant was involved. It needs to be stated that learned counsel for the appellant has not been able to point out anything to controvert this finding. In fact even the bail order, which could have substantiated the case of the appellant that his brother had been granted bail, has not been placed on record.
Thus, it is not possible to accept the contention of learned counsel for the appellant that the brother of the appellant and not the appellant was involved in the criminal case.
Learned counsel for the appellant also submitted that even if the appellant was involved in the criminal case, then too the nature of the offence is not such that it should have resulted in dismissal of service. It is also his contention that the appellant is only an accused and has not been convicted.
The records reveal that the appellant had been arrested and had been released on bail. The appellant was, therefore, aware of the fact that a First Information Report had been lodged against him. The declaration made by the appellant in the attestation form was apparently false. The appellant had deliberately withheld information from the Department that he had been arrested. The declaration form clearly provided that in case any false declaration was made, action could be taken against him.
This issue as to whether an order of dismissal from service in such circumstances where a false declaration has been made in the enrollment form has been examined by the Supreme Court time and again.
In Kendriya Vidyalaya Sangathan and Ors. v. Ram Ratan Yadav1, a question arose as to suppression of material information relating to character and antecedents. In Clause 4 of the offer of appointment offered to Physical Education Teacher, it was mentioned that suppression of any information will be considered a major offence for which the punishment may extend to dismissal from service. Suppression of information was held to be material as a criminal case under Sections 323, 341, 294 and 506-B read with Section 34 IPC was pending on the date when the respondent filled the attestation form. The Supreme Court observed that suppression of material information or making a false statement has a clear bearing on the character and antecedents in relation to his continuance in service. It was also held that mere fact that the case was withdrawn by the State Government was not much material. The Supreme Court discussed the matter thus:
"10. The Memorandum dated 7-4-1999/8-4-1999 terminating the services of the respondent refers to Columns 12 and 13 of the attestation form, the criminal case registered against the respondent on the basis of the report given to the appellants by IG, Police, suppression of material information by the respondent while submitting attestation form and violating the clause stipulated under Para 9 of the offer of appointment issued to him, OM dated 1-7-1971 of the Cabinet Secretary, Department of Personnel, New Delhi, in which it is clearly mentioned that furnishing of false information or suppression of factual information in the attestation form would be disqualification and is likely to render the candidate unfit for employment under the Government and that as per Clause 4 of the offer of appointment, the respondent was on probation for a period of two years and that his services were liable to be terminated by one month's notice.
11. It is not in dispute that a criminal case registered under Sections 323, 341, 294 and 506-B, read with Section 34 IPC was pending on the date when the respondent filled the attestation form. Hence, the information given by the respondent as against columns 12 and 13 as "No" is plainly suppression of material information and it is also a false statement. Admittedly, the respondent is holder of BA, BEd and MEd degrees. Assuming even his medium of instruction was Hindi throughout, no prudent man can accept that he did not study English language at all at any stage of his education. It is also not the case of the respondent that he did not study English at all. If he could understand columns 1-11 correctly in the same attestation form, it is difficult to accept his version that he could not correctly understand the contents of columns 12 and 13. Even otherwise, if he could not correctly understand certain English words, in the ordinary course he could have certainly taken the help of somebody. This being the position, the Tribunal was right in rejecting the contention of the respondent and the High Court committed a manifest error in accepting the contention that because the medium of instruction of the respondent was Hindi, he could not understand the contents of columns 12 and 13. It is not the case that columns 12 and 13 are left blank. The respondent could not have said "No" as against columns 12 and 13 without understanding the contents. Subsequent withdrawal of criminal case registered against the respondent or the nature of offences, in our opinion, were not material. The requirement of filling columns 12 and 13 of the attestation form was for the purpose of verification of character and antecedents of the respondent as on the date of filling and attestation of the form. Suppression of material information and making a false statement has a clear bearing on the character and antecedents of the respondent in relation to his continuance in service.
12. The object of requiring information in columns 12 and 13 of the attestation form and certification thereafter by the candidate was to ascertain and verify the character and antecedents to judge his suitability to continue in service. A candidate having suppressed material information and/or giving false information cannot claim right to continue in service. The employer having regard to the nature of the employment and all other aspects had the discretion to terminate his services, which is made expressly clear in para 9 of the offer of appointment. The purpose of seeking information as per columns 12 and 13 was not to find out either the nature or gravity of the offence or the result of a criminal case ultimately. The information in the said columns was sought with a view to judge the character and antecedents of the respondent to continue in service or not. The High Court, in our view, has failed to see this aspect of the matter. It went wrong in saying that the criminal case had been subsequently withdrawn and that the offences, in which the respondent was alleged to have been involved, were also not of serious nature. In the present case the respondent was to serve as a Physical Education Teacher in Kendriya Vidyalaya. The character, conduct and antecedents of a teacher will have some impact on the minds of the students of impressionable age. The appellants having considered all the aspects passed the order of dismissal of the respondent from service. The Tribunal after due consideration rightly recorded a finding of fact in upholding the order of dismissal passed by the appellants. The High Court was clearly in error in upsetting the order of the Tribunal. The High Court was again not right in taking note of the withdrawal of the case by the State Government and that the case was not of a serious nature to set aside the order of the Tribunal on that ground as well. The respondent accepted the offer of appointment subject to the terms and conditions mentioned therein with his eyes wide open. Para 9 of the said memorandum extracted above in clear terms kept the respondent informed that the suppression of any information may lead to dismissal from service. In the attestation form, the respondent has certified that the information given by him is correct and complete to the best of his knowledge and belief; if he could not understand the contents of columns 12 and 13, he could not certify so. Having certified that the information given by him is correct and complete, his version cannot be accepted. The order of termination of services clearly shows that there has been due consideration of various aspects. In this view, the argument of the learned Counsel for the respondent that as per para 9 of the memorandum, the termination of service was not automatic, cannot be accepted."
(emphasis supplied) In R. Radhakrishnan v. Director General of Police and Ors.2, the Supreme Court observed :
"10. Indisputably, the appellant intended to obtain appointment in a uniformed service. The standard expected of a person intended to serve in such a service is different from the one of a person who intended to serve in other services. Application for appointment and the verification roll were both in Hindi as also in English. He, therefore, knew and understood the implication of his statement or omission to disclose a vital information. The fact that in the event such a disclosure had been made, the authority could have verified his character as also suitability of the appointment is not in dispute. It is also not in dispute that the persons who had not made such disclosures and were, thus, similarly situated had not been appointed.
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13. In the instant case, indisputably, the appellant had suppressed a material fact. In a case of this nature, we are of the opinion that question of exercising an equitable jurisdiction in his favour would not arise."
(emphasis supplied) The Supreme Court in Union of India and Ors. v. Bipad Bhanjan Gayen3 also observed as follows :
"10. It bears repetition that what has led to the termination of service of the respondent is not his involvement in the two cases which were then pending, and in which he had been discharged subsequently, but the fact that he had withheld relevant information while filling in the attestation form. We are further of the opinion that an employment as a police officer pre-supposes a high level of integrity as such a person is expected to uphold the law, and on the contrary, such a service born in deceit and subterfuge cannot be tolerated."
In State of West Bengal and Ors. v. Sk. Nazrul Islam4, the Supreme Court observed :
"3. On 28.09.2007, the respondent was supplied a verification roll for verification of his antecedents and the respondent filled the verification roll and submitted the same to the Reserve Officer, Howrah, on 29.09.2007. The verification roll of the respondent was sent to the District Intelligence Branch, Howrah, on 08.10.2007. In the course of enquiry, it came to light that he was involved in a criminal case involving offences under Sections 148/ 323/380/427/596, IPC in Bagnan PS Case No. 97 of 2007 and after investigation, the charge-sheet had already been filed in the Court of the Additional Chief Judicial Magistrate, Uluberia, Howrah, and that the respondent had surrendered before the Court and had been granted bail. All these facts, however, had been concealed in Column 13 of the verification roll submitted by the respondent in which he was required to state whether he was ever arrested, detained or convicted. The authorities, therefore, did not appoint the respondent as a constable.
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5. We have heard the learned counsel for the parties and we fail to appreciate how when a criminal case under Sections 148/323/380/427/596 IPC, against the respondent was pending in the Court of the Additional Chief Judicial Magistrate, Uluberia, Howrah, any mandamus could have been issued by the High Court to the authorities to appoint the respondent as a constable. Surely, the authorities entrusted with the responsibility of appointing constables were under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of constable and so long as the candidate has not been acquitted in the criminal case of the charges under Sections 148/323/380/427/596 IPC, he cannot possibly be held to be suitable for appointment to the post of constable."
A Bench of three Hon'ble Judges of the Supreme Court in Avtar Singh Vs. Union of India & Ors.5 answered the reference made in Jainendra Singh Vs. State of U.P. & Ors.6 on the question of suppression of information or submitting false information in the verification form and observed :
"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.
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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.
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38. 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.
38.4.1 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.
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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."
It is, therefore, clear from the aforesaid decisions that the requirement of furnishing information contained in the enrollment form is for the purpose of verification of character and antecedents of the applicant as on the date of filling of the enrollment form. Suppression of material information and making a false statement has a clear bearing on the character and antecedents of the incumbent in relation to his continuance in service and that the standard expected of a person appointed in a uniformed service is much higher than other services.
The petitioner was arrested in Case Crime No.518 of 2001 under sections 323, 325 and 504 of Indian Penal Code and released on bail. He was tried by a Summary Security Force Court and was dismissed from service. It was not a case relating to shouting slogans or a petty offence. The decision taken by the Department in dismissing the appellant from service was, therefore, justified.
The judgment passed by the learned Judge, therefore, does not call for any interference.
The Special Appeal is, accordingly, dismissed.
Order Date :- 01.03.2017 GS (Dilip Gupta, J.) (Siddhartha Varma, J.)