Madhya Pradesh High Court
Sadashiv Kakadiya vs Department Of Farmer Welfare And ... on 1 August, 2018
1
HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE
W.P.No.1588/2017
(Sadashiv Kakadiya Vs. State of M.P. & Others)
Indore, Dated: 01.08.2018
Shri Rampal Uikey, learned counsel for the petitioner.
Shri Virendra Khadav, learned GA for the
respondent/State on advance notice.
The petitioner has file the present petition being aggrieved by the order dated 22.01.2014 Annexure P/3 and P/4 passed by respondent Nos.2 and 3 respectively whereby he has been terminated on the ground of suppression of the fact of registration of a criminal case in Column No.12 of the Character Verification Form.
The petitioner was appointed on the post of Rural Agriculture Extension Officer on 04.05.2013 on two years' probation period. After appointment he was posted at Dewas in the office of respondent No.3. The petitioner joined the services on 01.06.2013. All of a sudden, vide order dated 22.01.2014 he has been terminated from service due to non- disclosure of registration of criminal case in Column No.12 of the Character Verification Form. After the appointment of the petitioner respondent got verified his criminal antecedents from the Superintendent of Police, Khandwa. The Superintendent of Police, Khandwa informed the respondents that the Crime No.157/1 under sections 294, 324, 506, 34 of IPC has been registered against the petitioner and trial is pending before the Court.
The petitioner concealed the aforesaid fact in the 2 character verification form but vide letter dated 04.01.2014 he has already informed to the Director that vide judgement dated 09.12.2013 now he has been acquitted in the criminal case by the JMFC, Khandwa. He has also furnished certified copy of the said judgement and requested for reinstatement and thereafter approached this Court by way of writ petition.
The respondent filed the return by submitting that as per circular dated 24.11.2012 issued by General Administration Department it has been directed to all the departments that appointment order can be issued in anticipation of character verification and if any adverse report is received then appointment can be cancelled and this condition be incorporated in the appointment order. The petitioner submitted an affidavit in which on oath he suppressed the fact of registration of criminal case and pendency of trial against him, therefore, the respondent has rightly terminated his services, hence, no interference is called for.
Admittedly the petitioner was tried under Sections 294, 324, 506, 34 of IPC but by judgement dated 09.12.2013 he has been acquitted by JMFC and no appeal has been preferred till date, therefore, the said acquittal has attained finality.
The case of the petitioner falls under the Clause 38.4.3 of the judgement passed by the Apex Court in case of Avtar Singh Vs. Union of India, reported in (2016) 8 SCC 471 and before passing the impugned order, the said judgement was not considered by the respondents, therefore, the order is liable to be set aside and the matter 3 is liable to be remitted back to the respondent to consider afresh.
The respondent has placed reliance over the judgement of Apex Court passed in the case of Pawan Kumar Vs. State of Haryana reported in (1996) 4 SCC 17 in which the apex Court has explained the term "Moral Turpitude". The respondent has also placed reliance over the judgement passed by the Apex Court in case of Commissioner of Police, New Delhi Vs. Mehar Singh, reported in (2013) 7 SCC 685 in which the apex Court has held that the person having criminal antecedent will not be fit in the Police Service. In case of State of Madhya Pradesh and Others Vs. Parvez Khan, reported in (2015) 2 SCC 591 the Apex Court has declined the compassionate appointment for the Police Service on the ground of criminal antecedent of a candidate who was acquitted for want of evidence or was discharged for the offence of compounding. All these aforesaid cases were again considered by the Apex Court in case of Avtar Singh Vs. Union of India, reported in (2016) 8 SCC 471, in detail and in which it is held that still the employer can exercise its discretion in respect of appointment of termination of a candidate/employee who has been convicted/acquitted or arrested, or pendency of a criminal case, whether before or after entering into the service. Relevant portion reads as follows:
4"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 5 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.
(emphasis in original)"
The case of the petitioner falls under the Clause 38.4.3. In case of Vikram Singh Vs. Commissioner of Police, reported in (2018) 1 SCC 308, the Apex Court in similar facts and circumstances has remitted back the case to the authority to reconsider the representation in light of the judgement passed in the case of Avtar Singh (supra).
In view of the above, the matter is remitted back to the competent authority to take a fresh decision in light of the law laid down by the Apex Court in case of Avtar Singh (supra).
Petition is disposed of.
(VIVEK RUSIA) Judge jasleen Digitally signed by Jasleen Singh Saluja Date: 2018.08.03 10:39:22 +05'30'