Allahabad High Court
Amarjeet Sahani vs Union Of India And 5 Others on 15 March, 2023
Author: Rajiv Joshi
Bench: Rajiv Joshi
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Court No. -33 Case :- WRIT - A No. - 60883 of 2017 Petitioner :- Amarjeet Sahani Respondent :- Union Of India And 5 Others Counsel for Petitioner :- Vijay Gautam,Atipriya Gautam,Mohammad Fahad,Vinod Kumar Mishra Counsel for Respondent :- A.S.G.I.,Archana Srivastava,Prem Narayan Rai, Shamim Ahmad Hon'ble Rajiv Joshi, J.
Heard Sri Ishir Sripat, holding brief of Ms. Atipriya Gautam, learned counsel for the petitioner and Ms. Archana Srivastava, learned counsel for the respondents-Union of India.
The instant writ petition under Article 226 of the Constitution has been filed for following reliefs:
"(a) Issue, a writ, order or direction in the nature of certiorari, for quashing the impugned order dated 05/12/2016, 19/07/2017 & 01/08/2017, passed by the Respondent Nos. 4, 3 & 5, respectively, enclosed as Annexure-1, 2 & 3 to the Writ Petition.
(b) Issue, a writ, order or direction in the nature of mandamus, commanding the Respondents to reinstate the services of the petitioner, treating the petitioner continuity in the services, with all consequential benefits.
(c) Issue, a writ, order or direction in the nature of mandamus, commanding the respondents to pay all the arrears of salary since the punishment awarded the termination from services and accordingly pay all consequential benefits to the petitioner."
Record reflects that the petitioner was selected and appointed on 28.08.2015 from the Recruitment Board No.1, Group Centre, C.R.P.F., Old Airport Post Esmileganj, Phaphamau, Allahabad on the permanent post of Constable, in the Central Reserve Police Force. Thereafter, he was reported to Recruit Training Centre-IV, Srinagar on 04.01.2016, where his training started w.e.f. 18.01.2016, which was to be continued upto 01.11.2016. The petitioner completed his 22 weeks' training and went to 15 days' leave on 15.07.2016 . Thereafter, he reported in Training Centre, Jammu on 30.07.2016 for further training at Recruit Training Centre-IV, Srinagar.
Subsequently, the respondent no.4-Commandant 172, Bn., CRPF, New Police Lines, Garhwa, Jharkhand issued notice dated 9.10.2016 to the petitioner for termination from services informing that his services shall stand terminated w.e.f. the date of expiry of one month from the date on which the notice is delivered to him. Subsequently, vide office order dated 05.12.2016, the respondent-4 in exercise of power under the provisions of Rule 5(1) of The Central Civil Services (Temporary Service) Rules, 1965 (hereinafter referred to as the Rules, 1965) terminated the services of the petitioner w.e.f. 9.12.2016 i.e. expiry of one month notice.
Aggrieved by the aforesaid order, the petitioner filed an appeal/representation under Rule 5 (a) of the Rules, 1965 before the Deputy Inspector General of Police, Range Rampur by registered post dated 11.01.2017. The said appeal was dismissed vide order dated 19.07.2017 passed by respondent no.3-Inspector General of Police, Central Reserve Police Force (CRPF), Lucknow .
Again, the petitioner filed Writ A No. 9964 of 2017, which was disposed of vide order dated 6.3.2017 directing the respondent no. 5-Deputy Inspector General of Police, Range Rampur, U.P. to decide the petitioner's representation in accordance with law within a period of three months from the date a certified copy of the order. Thereafter, the representation of the petitioner was rejected by respondent-5 vide order dated 01.08.2017. All the three orders are impugned in the present writ petition.
Learned counsel for the petitioner submits that the impugned termination order has been issued without affording any opportunity of hearing as well as without calling any explanation, which is in violation of principles of natural justice. The petitioner never went jail when he had applied for service, there was no criminal case against him in his knowledge. However, when the termination order was served upon the petitioner at Jangal Camp Nagroota, Jammu, then he came to know that some investigation was going on in the criminal case filed against the petitioner. Subsequently, the petitioner came to the concerned police station i.e. Chauri Chaura, District Gorakhpur on 16.12.2016, then for the first time, he came to know about the criminal case no. 10551/2009, State Vs. Naresh & Others registered under Sections 323, 504, 506 IPC, in which, charge-sheet was submitted on 24.07.2009 in case crime no. NCR 173 of 2009. Thereafter, the petitioner filed a petition being Criminal Misc. 482 Application No. 2181 of 2017, in which direction was issued by this Court dated 23.01.2017 to surrender and apply for bail. In pursuance thereof, the petitioner surrendered on 14.02.2017 and granted bail on same day i.e. 14.02.2017.
Learned counsel for the petitioner further submits that the said criminal case was not in his knowledge at the time, he made declaration and is entitled for reinstatement in service in view of Sub-section 2(a)(iii) of Rule 5 of the Rules, 1965. He further submits that the aforesaid criminal case against the petitioner was not in his knowledge and the respondent authorities have not applied their mind and passed a technical order without considering the direction as issued by the Apex Court in Avtar Singh Vs. Union of India & Ors. reported in 2016 (8) SCC 471 and Pawan Kumar Vs. Union of India, (2022) SCC Online SC 532 . He further submits that the petitioner's claim for appointment is liable to be considered in the light of the aforesaid judgments, which was followed by the Division Bench of this Court in Special Appeal (Defective) No. 734 of 2016 (State of U.P. and others Vs. Vijay Kumar and others). He further submits that the claim of the petitioner has not been examined by any of the respondents in the light of the direction issued by the Apex Court in Avtar Singh (supra) and Pawan Kumar (supra).
On the other hand, Ms. Archana Srivastava, learned counsel for the respondents-Union of India submitted that at the time of submission of declaration, a criminal case was pending against the petitioner and therefore, the petitioner has suppressed the fact of pendency of the criminal case and submitted a false affidavit, hence, he is not entitled to be considered for the appointment on the said post, as any person desirous of holding the post of government servant has to act with utmost good faith and truthfulness. She further submitted that there is no illegality or infirmity in the orders impugned, therefore, the writ petition is liable to be dismissed.
In support of her contention, learned counsel for the respondent-Union of India placed reliance upon the judgments of the Apex Court rendered in cases of State of Rajasthan & others Vs. Chetan Jeff, Civil Appeal No. 3116 of 2022 dated 11.05.2022, Union of India and Others Vs. Dilip Kumar Mallick, 2022 LiveLaw (SC) 360, State of M.P. Vs. Abhijit Singh Pawar, Civil Appeal No. 11356 of 2015 dated 26.11.2018, Union Territory Chandigarh Administration and others Vs. Pradeep Kumar & others, Civil Appeal No. 67 of 2018 dated 8.1.2018 and State of M.P. & others Vs. Parveez Khan, Civil Appeal No. 10613 of 2014 dated 1.12.2014 as well as judgments of this Court in cases of Jeeut Yadav Vs. Union of India, Writ A No. 40550 of 2005 dated 11.02.2020 and Pankaj Vs. Union of India, Writ A No. 4486 of 2019 dated 28.03.2019.
I have considered the submissions made by learned counsel for the parties as well as gone through the entire materials brought on record.
Undisputedly, on the date, when the affidavit has been submitted by the petitioner, though a criminal case was instituted against the petitioner but he did not have knowledge of the same as neither any summons were issued nor he was arrested or had obtained bail from any competent court, therefore, there was no suppression of relevant facts or submission of false affidavit at that stage. It is unfortunate that a criminal case of trivial nature came to be registered against the petitioner being criminal case no. 10551/2009, but the petitioner was not aware of the same, therefore, at the time of verification, he gave an affidavit not disclosing the fact about the pendency of criminal case, which was not deliberate on his part.
The Apex Court in the case of Avtar Singh (supra) has held that in case offence is petty in nature, which does not involve moral turpitude, cheating, misappropriation etc. or otherwise not a serious or heinous offence, when verification form is filled, employer may ignore lapse of suppression or submitting false information in appropriate cases on due consideration of various aspects. It has also held that the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse. Paragraph no. 38 of the aforesaid judgment is as under:-
"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.
38.2 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 sugge6716The stio falsi, knowledge of the fact must be attributable to him."
Following the judgment in the case of Avtar Singh (supra), the Apex Court in its latest judgment in the case of Pawan Kumar (supra) has held that by mere suppression of material/false information, employee/recruit is not to be discharged/terminated axiomatically from service just by a stroke of pen. At the same time, effect of suppression of material/false information involving in a criminal case, if any, is left for employer to consider all relevant facts and circumstances available as to antecedents and keeping in view objective criteria and relevant service rules into consideration, while taking appropriate decision regarding continuance/suitability of employee into service. Paragraph no. 16 of the aforesaid judgment passed in case of Pawan Kumar (supra), is as under:
"16. The judgment relied upon by the respondent Rajasthan Rajya Vidyut Prasaran Nigam Limited and another v. Anil Kanwariya (2021) 10 SCC 136may not be of any assistance for the reason that it was a case where the respondent employee before submitting application pursuant to the advertisement inviting applications was convicted by the competent Court of jurisdiction and this fact was not disclosed by him while filling his application form and that was the reason favoured upon the Court while upholding action of the authority in passing the order of termination which was impugned in the proceedings. We have already quoted paragraph 38 of the judgment by a three-Judge Bench of this Court in Avtar Singh (supra) and in the context of the factual background of the present case applied the said principles. One distinguishing factor, as noticed above, is that the criminal complaint/FIR in the present case was registered post submission of the application form. We have also taken into account the nature of the allegations made in the criminal case and that the matter was of trivial nature not involving moral turpitude. Further, the proceedings had ended in a clean acquittal. As is clear from paragraph 38 in Avtar Singh (supra), all matters cannot be put in a straitjacket and a degree of flexibility and discretion vests with the authorities, must be exercised with care and caution taking all the facts and circumstances into consideration, including the nature and type of lapse."
Having considered the arguments raised by learned counsel for the parties and having gone through the case laws as referred hereinabove, this Court finds that at the time of submission of affidavit, the criminal case was already registered against him but the petitioner did not have knowledge of the same as neither any summons were issued nor he was arrested or had obtained bail from any competent court, therefore, there was no suppression of facts or submission of false affidavit at that stage. The aforesaid criminal case, which is trivial in nature, hence the competent authority while passing the order impugned has failed to follow the mandate of the Apex Court in the case of Avtar Singh (supra) and Pawan Kumar (supra), therefore, the orders impugned dated 05/12/2016, 19/07/2017 & 01/08/2017, passed by the Respondents-4, 3 & 5, respectively, cancelling the candidature of the petitioner are not sustainable and the same are liable to be quashed.
In view of the above, the impugned order dated 05/12/2016, 19/07/2017 & 01/08/2017, passed by the respondent no.4-Commandant 172, Bn., CRPF, New Police Lines, Garhwa, Jharkhand, respondent no.3-Inspector General of Police, Central Reserve Police Force (CRPF), Lucknow and respondent no.5-Deputy Inspector General of Police, Range Rampur, District Rampur, respectively, are quashed and the matter is remitted to the respondent no.4-Commandant 172, Bn., CRPF, New Police Lines, Garhwa, Jharkhand, who in turn, shall consider the case of the petitioner herein and take a decision afresh, in accordance with law as well as keeping in view the law laid down by Apex Court in Avtar Singh (supra) and Pawan Kumar (supra), within a period of three months from the date of receipt of certified copy of this order, if there is no other legal impediment.
With the aforesaid observations/directions, this writ petition is, accordingly, allowed.
Order Date :-15.03.2023 Noman