Madhya Pradesh High Court
Atul Singh vs Union Of India on 21 June, 2022
Author: Maninder S Bhatti
Bench: Maninder S Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S BHATTI
ON THE 21st OF JUNE, 2022
WRIT PETITION No. 21381 of 2021
Between:-
ATUL SINGH S/O BAL PRATAP SINGH , AGED
ABOUT 29 YEARS, OCCUPATION: UNEMPLOYEE
GRAM POST GHUDKUDA THANA AHRORA
TEHSIL CHUNAR DISTT. MIRJAPUR (UTTAR
PRADESH)
.....PETITIONER
(BY SHRI VIKAS GUPTA, ADVOCATE)
AND
1. UNION OF INDIA THR. SECRETARY COL
MANTRALAYA 11 AKABAR MARG, NEW DELHI
(DELHI)
2. COAL INDIA LIMITED THROUGH
MAHAPRABANDHAK HEAD QUARTER
KOLKATA KOLKATA, (WEST BENGAL)
3. NORTHERN COALFIELDS LIMITED THROUGH
MAHAPRABANDHAK MAHODAY POST
SINGRAULI COLLIERY DISTT. SINGRAULI.
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI GREESHM JAI, ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
The petitioner has filed this writ petition assailing the order dated 7-8- 2021 (Annexure-P/1) by which provisional appointment letter issued to the Signature Not Verified SAN petitioner has been cancelled due to not having good antecedents as per M.P. Digitally signed by AJAY KUMAR CHATURVEDI Date: 2022.06.28 18:51:27 IST Notification.
22. The facts reveal that in terms of Employment Notification dated 10-7-2020 the petitioner herein, applied for appointment against the post of Technician Fitter (Trainee) Cat.III in the Northern Coalfields Ltd. Pursuant to which petitioner was selected and a provisional appointment letter dated 8-6- 2021 was issued.
3. After issuance of provisional appointment letter the petitioner submitted a declaration form on 15-6-2021 in which he disclosed that a criminal case in the Court of Mirzapur (UP) was pending against him which was registered as Criminal Case No.266/2018 [State vs. Amit Singh] in respect of offence punishable under sections 147, 148, 186, 189, 323, 352, 393, 504 and 506 of the Indian Penal Code.
4. Thus, the respondents while taking recourse to Clause 12(iii) of the Employment Notification came to the conclusion that the petitioner was guilty of suppression of his antecedents and hence, cancelled the provisional appointment letter.
5. Learned counsel for petitioner submits that there was no suppression by the petitioner. The petitioner was called upon to submit a declaration form after issuance of the provisional appointment letter. Accordingly, the petitioner submitted declaration form on 18-6-2021 and while approaching respondents with clean hands, the petitioner categorically disclosed that a criminal case against him was pending and the petitioner also sworn in an affidavit furnishing details of criminal case including relevant sections. Thus, learned counsel for petitioner submits that there was no Signature Not Verified suppression as far as pendency of criminal case is concerned. He also submits SAN Digitally signed by AJAY KUMAR that prior to issuance of provisional appointment letter, there was no occasion CHATURVEDI Date: 2022.06.28 18:51:27 IST with the petitioner to disclose that any criminal case was pending.
36. Learned counsel for petitioner submits that as per on application for appointment which was moved by the petitioner which is contained in Annexure-R/1 to the return, there was no column to disclose the pendency/disposal of any criminal case, nor anything could be added to that application. Thus, learned counsel for petitioner submits that there was no fault on the part of the petitioner and accordingly while placing reliance on the decisions of the Apex Court rendered in the cases of Avtar Singh vs. Union of India and others, (2018) 8 SCC 471 and Pawan Kumar vs. Union of India and another, Civil Appeal No.3574 of 2022, he submits that the impugned order is bad in the eyes of law, inasmuch as after passing of the impugned order, even the petitioner has been acquitted of the charges and the order of acquittal is clean/honourable acquittal and, therefore, case of the petitioner needs to be reconsidered.
7. Per contra, learned counsel for respondents submits that the petitioner was well aware about responsibility regarding disclosure of his antecedents, which was evident from perusal of various clauses of the advertisement itself. Learned counsel for State while taking this Court to Clause 12(iii) as well as (xxii) and also Clause 14(ii) of the Employment Notification submits that candidates were required to disclose their antecedents and thus, they were made known and it was unequivocally made known to them that if any suppression is found, their provisional appointment letter would be liable to be cancelled. Even in the provisional appointment letter specific condition was incorporated in Clause 17.
Signature Not VerifiedSAN 8. Learned counsel for employer submits that even till stage of Digitally signed by AJAY KUMAR CHATURVEDI issuance of appointment letter that a criminal case was pending against the Date: 2022.06.28 18:51:27 IST 4 petitioner which was registered as Criminal Case No.266/2018 - State vs. Amit Singh and, therefore, respondents rightly resorted to take a decision to cancel the appointment of the petitioner, in terms of Clause 12 of the advertisement/employment notification. Learned counsel for respondents while placing reliance on the judgment of the Hon'ble Supreme Court rendered in the case of Commissioner of Police vs. Raj Kumar - Civil Appeal No.4946/2021 [arising out of SLP(C) No.13285 of 2014] as well as a Division Bench decision of this Court in W.P. No.13585/2015 [General Manager, Grey Iron Foundry, Jabalpur vs. Shri Ramjagdish Meena], submits that the writ petition deserves to be dismissed.
9. Heard the rival submissions of the parties and perused records.
10. The Division Bench in the case of Shri Ramjagdiosh Meena (supra) in paras 5 & 6 held as under :
"5. The issue as to whether an incumbent acquitted of the criminal charges on compromise has an indefeasible right of appointment is no more res integra. In Union Territory, Chandigarh Administration vs Pradeep Kumar (2018) 1 SCC 797, it is heldby their Lordships:
"13. It is thus well settled that acquittal in a criminal case does not automatically entitle him for appointment to the post. Still it is open to the employer to consider the antecedents and examine whether he is suitable for appointment to the post. From the observations of this Court in Commissioner of Police, New Delhi and Another v. Mehar Singh (2013) 7 SCC 685 and State of Madhya Pradesh v. Parvez Khan (2015) 2 SCC 591 cases, it is clear that a candidate to be recruited to the police service must be of impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged, it cannot be presumed that he was honourably acquitted/completely exonerated. The decision Signature Not Verified SAN of the Screening Committee must be taken as final unless it is shown to be mala fide.Digitally signed by AJAY KUMAR CHATURVEDI
Date: 2022.06.28 18:51:27 IST The Screening Committee also must be alive to the importance of the trust repose in it 5 and must examine the candidate with utmost character.
6. A Full Bench of this Court in Ashutosh Pawar vs High Court of Madhya Pradesh 2018(2) MPLJ 419 after considering various judgments in the field, has held:-
"32. .......we hold that decision of Criminal Court on the basis of compromise or an acquittal cannot be treated that the candidate possesses good character, which may make him eligible, as the criminal proceedings are with the view to find culpability of commission of offence whereas the appointment to the civil post is in view of his suitability to the post. The test for each of them is based upon different parameters and therefore, acquittal in a criminal case is not a certificate of good conduct to a candidate. The competent Authority has to take a decision in respect of the suitability of candidate to discharge the functions of a civil post and that mere acquittal in a criminal case would not be sufficient to infer that the candidate possesses good character. Division Bench judgment of this Court in W.P.No.5887/2016 (Arvind Gurjar vs. State of M.P.) is overruled. Another Division Bench judgment in W.A. No.367/2015 (Sandeep Pandey vs. State of M.P. andothers) is also overruled.
41. Even if the High Court finds that the decision of the State Government is suffering from some illegality,the jurisdiction of the High Court in a writ petition under Art. 226 of the Constitution of India is to examine the decision-making process than to act as Court of appeal to substitute its own decision. In appropriate case, if the Court finds decision-making process is arbitrary or illegal, the Court will direct the Authority for reconsideration rather than to substitute the decision of the competent Authority with that of its own."
11. The Apex Court in the case of Rajkumar (supra) in paras 14, 22, 26 and 28 ruled thus :
Signature Not Verified"14. This Court has, in the past, on several occasions, dealt with questions SAN which are similar, if not entirely identical to what is involved in the present case, to wit, Digitally signed by AJAY KUMAR CHATURVEDI Date: 2022.06.28 18:51:27 IST whether in the event of exoneration or acquittal of an applicant/candidate arrayed as 6 accused of various offences is a decisive factor for consideration of his or her suitability. Several judgments in the past had appeared to draw a distinction between Âacquittal of accused individuals on the one hand and those acquitted or exonerated on account of benefit of doubt. Similarly, where candidates were charged with grave offences involving moral turpitude as well as larger outcomes were examined. Another area which engaged this Court's attention was the effect of non-disclosure of pending criminal cases. Matters came to a head when all these issues were referred to authoritative decision by a larger three judge Bench. In Avtar Singh (supra), the three- judge bench, after detailed discussion of the various circumstances that arose when public authorities are called upon to deal with such cases, recorded its conclusions in the following manner:
"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, acquit- tal 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 re- quired information.
38.2 While passing order of termination of services or cancellation of candida- ture for giving false information, the employer may take notice of special circum- stances of the case, if any, while giving such information."
xx xx
22. Again, in Prem Singh Chaudhary case, this court is of the opinion that the scrutiny of the materials, by the High Court, was as if it was sitting in appeal over the decision of the Screening Committee. That body had the benefit of the overall record of the candidate, in the context of considering his or her suitability. Its conclusions should not have been brushed aside, on the ground that it showed mechanical application of mind, or that the materials did not show involvement in a grave or Signature Not Verified SAN serious offence.Digitally signed by AJAY KUMAR CHATURVEDI
xx xx xx Date: 2022.06.28 18:51:27 IST
26. Courts exercising judicial review cannot second guess the suitability of a 7 candidate for any public office or post. Absent evidence of malice or mindlessness (to the materials), or illegality by the public employer, an intense scrutiny on why a candidate is excluded as unsuitable renders the courts' decision suspect to the charge of trespass into executive power of determining suitability of an individual for appointment. This was emphasized by this court, in M.V. Thimmaiah v. Union Public Service Commission7 held as follows:
"21. Now, comes the question with regard to the selection of the candidates. Normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory rules. The courts cannot sit as an Appellate Authority to examine the recommendations of the Selection Committee like the court of appeal. This discretion has been given to the Selection Committee only and courts rarely sit as a court of appeal to examine the selection of the candidates nor is the business of the court to examine each candidate and record its opinion...
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30. We fail to understand how the Tribunal can sit as an Appellate Authority to call for the personal records and constitute Selection Committee to undertake this exercise. This power is not given to the Tribunal and it should be clearly understood that the assessment of the Selection Committee is not subject to appeal either before the Tribunal or by the courts. One has to give credit to the Selection Committee for making their assessment and it is not subject to appeal. Taking the overall view of ACRs of the candidates, one may be held to be very good and another may be held to be good. If this type of interference is permitted then it would virtually amount that the Tribunals and the High Courts have started sitting as Selection Committee or act as an Appellate Authority over the selection."
xx xx
28. Again, in Union Public Service Commission v. M. Sathiya Priya it was iterated that:Signature Not Verified SAN
"ÂœThe question as to how the categories are assessed in light of the relevant Digitally signed by AJAY KUMAR CHATURVEDI Date: 2022.06.28 18:51:27 IST records and as to what norms apply in making the assessment, is exclusively to be 8 determined by the Selection Committee. Since the jurisdiction to make selection as per law is vested in the Selection Committee and as the Selection Committee members have got expertise in the matter, it is not open for the courts generally to interfere in such matters except in cases where the process of assessment is vitiated either on the ground of bias, mala fides or arbitrariness. It is not the function of the court to hear the matters before it treating them as appeals over the decisions of the Selection Committee and to scrutinise the relative merit of the candidates. The question as to whether a candidate is fit for a particular post or not has to be decided by the duly constituted expert body i.e. the Selection Committee."
12. Thereafter, in case of Avtar Singh (supra) in paras 34 to 38 held as under :
"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 information presupposes that what is suppressed that Âœmatters 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.
36. What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by authorities concerned considering Signature Not Verified SAN post/nature of duties/services and power has to be exercised on due consideration of Digitally signed by AJAY KUMAR various aspects. CHATURVEDI Date: 2022.06.28 18:51:27 IST
37. The "McCarthyism" is antithesis to constitutional goal, chance of 9 reformation has to be afforded to young offenders in suitable cases, interplay of reformative theory cannot be ruled out in toto nor can be generally applied but is one of the factors to be taken into consideration while exercising the power for cancelling candidature or discharging an employee from service.
38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of the aforesaid discussion, we summarise 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 recourses 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.Signature Not Verified SAN
38.4.3. If acquittal had already been recorded in a case involving moral Digitally signed by AJAY KUMAR CHATURVEDI Date: 2022.06.28 18:51:27 IST turpitude or offence of heinous/serious nature, on technical ground and it is not a case 10 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.Signature Not Verified
SAN 38.11. Before a person is held guilty of suppressio veri or suggestio falsi, Digitally signed by AJAY KUMAR CHATURVEDI knowledge of the fact must be attributable to him."
Date: 2022.06.28 18:51:27 IST 1113. Recently the Apex Court in the case of Pawan Kumar (supra) discussed the earlier case law including Avtar Singh (supra) and in para 13 held as under :
"13. What emerges from the exposition as laid down by this Court is that by mere suppression of material/false information regardless of the fact whether there is a conviction or acquittal has been recorded, the employee/recruit is not to be discharged/terminated axiomatically from service just by a stroke of pen. At the same time, the effect of suppression of material/false information involving in a criminal case, if any, is left for the employer to consider all the relevant facts and circumstances available as to antecedents and keeping in view the objective criteria and the relevant service rules into consideration, while taking appropriate decision regarding continuance/suitability of the employee into service. What being noticed by this Court is that mere suppression of material/false information in a given case does not mean that the employer can arbitrarily discharge/terminate the employee from service."
14. Thus, if the case in hand is tested on the anvil of the aforesaid pronouncement of law, the same would reveal that Annexure-P/1 which is the order impugned, does not disclose the reasons behind cancellation of the appointment of the petitioner. There is no discussion in Annexure-P/1 as regards nature of the offence, suppression by petitioner or the fact that at the time of submission of application form itself, petitioner was required to disclose the factum with regard to pendency of criminal case. The order impugned is to be tested in accordance with the observation of the Apex Court in para 13 of the decision rendered in the case of Pawan Kumar (supra), wherein it is ruled that an employee/recruitee is not required to be discharged Signature Not Verified SAN /terminated from service just by stroke of pen, meaning thereby, authorities are Digitally signed by AJAY KUMAR required to assign reason while taking into consideration the nature of offence.
CHATURVEDI Date: 2022.06.28 18:51:27 IST 1215. More particularly, in case in hand the petitioner has been acquitted subsequently after passing of the order of cancellation of appointment. Therefore, in the considered view of this Court the case of the petitioner requires reconsideration in the light of his acquittal.
16. Thus, in view of preceding analysis, the impugned order dated 7-8-2021 (Annexure-P/1) is quashed and the matter is remitted back to respondents to consider the factum with regard to nature of offence, acquittal of the petitioner and then take a decision afresh, in the light of para 13 of the judgement of the Hon'ble Supreme Court in Pawan Kumar (supra) within a period of 90 days from the date of production of certified copy of the order passed today.
17. The writ petition is allowed to the extent indicated hereinabove.
(MANINDER S BHATTI) JUDGE ac Signature Not Verified SAN Digitally signed by AJAY KUMAR CHATURVEDI Date: 2022.06.28 18:51:27 IST