Allahabad High Court
Surendra Yadav vs State Of U.P. And Others on 31 January, 2023
Bench: Rajesh Bindal, Chief Justice
HIGH COURT OF JUDICATURE AT ALLAHABAD
Chief Justice's Court
Serial No. 12
HIGH COURT OF JUDICATURE AT ALLAHABAD
***
Pronounced on: January 31, 2023
SPECIAL APPEAL DEFECTIVE No. - 381 of 2022
(Arising out of Writ - A No. 40480 of 2008)
Surendra Yadav
.............. Appellant
Through :-
Mr. Vivek Saran, Advocate
v/s
State of U.P. and others
.............. Respondents
Through :-
Mr. Prateek Sinha, State Law Officer
CORAM :
HON'BLE RAJESH BINDAL, CHIEF JUSTICE
HON'BLE J.J. MUNIR, JUDGE
ORDER
1. This is a writ petitioner's appeal, arising out of a judgment and order passed by the learned Single Judge, dismissing Writ-A No. 40480 of 2008 preferred by the petitioner, questioning an order dated July 21, 2006, terminating his services, as also the order dated March 10, 2008 passed by the State Government, dismissing the writ petitioner's departmental appeal.
2. The facts giving rise to the present appeal are these:
The writ petitioner was appointed as a driver by the Excise Commissioner, Uttar Pradesh vide order dated May 5, 2003 against a substantive and vacant post. The writ petitioner was selected by a duly constituted Selection Committee in accordance with Rule 17(1) of the Uttar Pradesh Government Department Driver's Service Rules, 1993. His name was placed in the letter of appointment, that carried names of all appointees, at serial No.5 of the list of appointees in the OBC Categories. At the time of appointment, the writ petitioner was required to fill up a verification form carrying all necessary details relating to him. The writ petitioner duly filled up the form, disclosing all necessary information. The form aforesaid was filled up on May 12, 2003. After the aforesaid formality was over, the writ petitioner was permitted to join as a driver in the Excise Department on May 17, 2003 and since then he has been performing his duties regularly, as he says to the satisfaction of his superiors.
3. The writ petitioner was initially posted at the Govardhan Check Post in District Mathura and thereafter transferred to District Maharajganj vide order order dated May 30, 2005. It appears that on February 27, 2004, a show cause notice was issued to the writ petitioner, saying that he had made an incorrect declaration with regard to the non-pendency of any criminal case against him, inasmuch as according to a report by the S.S.P., Gorakhpur, Case Crime No. 302 of 2002, under Sections 323, 504, 308, 506 IPC, P.S. Shahjanwa, District Gorakhpur was pending against him. The writ petitioner says that he submitted a reply to the show cause notice on April, 15, 2004, taking a stand that he had not concealed any information with regard to pendency of Crime No. 302 of 2002.
4. It is the writ petitioner's case that the aforesaid crime was registered due to a dispute in the family amongst co-sharers relating to agricultural land. He did not have any information about the pendency of the crime when he filled up his verification form, saying that there was no case against him. It was also his defence in the reply that his name had been mentioned in the crime due to the family dispute without any basis to it. There is also a mention of the fact by the writ petitioner in the petition that the case was lodged against him at the instance of a Constable Driver, Ravindra Nath Yadav, posted in the office of the Director General of Police, U.P., Lucknow, who had misused his position to get a false case registered against the writ petitioner and his family members. It is also pleaded in the writ petition that the writ petitioner's family have already lodged an FIR against Ravindra Nath Yadav vide Crime No. 302-A of 2002, under Sections 323, 308, 504, 506, 325 IPC, P.S. Shahjanwa, District Gorakhpur. The writ petitioner after trial in Sessions Trial No. 116 of 2004, State Vs. Virai and others, has been acquitted by the Additional Sessions Judge vide judgment and order dated August 14, 2006. Even before that judgment came, the Excise Commissioner, looking into the explanation submitted by the writ petitioner, in an arbitrary and mechanical fashion discarded his reply and terminated the writ petitioner's services vide order dated July 21, 2006.
5. The writ petitioner's case is that the order dated July 21, 2006 was passed without adequate opportunity of hearing and prior to that order, neither disciplinary proceedings were initiated, a charge sheet issued or departmental inquiry held. The writ petitioner on August 18, 2006 made a representation to the Commissioner, Excise Department, Allahabad saying that he has never been convicted in any case and so far as Crime No. 302 of 2002, under Sections 323, 504, 308, 506 IPC is concerned, it was lodged behind his back, about which he had no information until time he filled up his verification form. On August 19, 2006, the Additional Commissioner, Excise Department, Maharajganj made an endorsement on the writ petitioner's representation to the Commissioner, Excise Department, Allahabad, requesting the Commissioner to consider the writ petitioner's case sympathetically.
6. The writ petitioner on his part preferred a departmental appeal against the order of termination of his services dated July 21, 2006 to the Principal Secretary, Excise Department, Government of U.P., Lucknow. The Principal Secretary, acting for the State Government, however, by the other order impugned in the writ petition dated March 10, 2008, dismissed the writ petitioner's appeal and affirmed the order terminating his services dated July 21, 2006.
7. It was in these circumstances that the writ petitioner instituted the present writ petition, which came up before the learned Single Judge after exchange of affidavits. The learned Single Judge by the judgment and order impugned has dismissed the writ petition, leading the writ petitioner to prefer the present appeal under Chapter VIII Rule 5 of the Rules of the Court.
8. Heard Mr. Vivek Saran, learned Counsel for the writ petitioner and Mr. Prateek Sinha, learned State Law Officer appearing on behalf of the respondents.
9. A perusal of the impugned judgment passed by the learned Single Judge shows that the learned Judge has taken into account the fact that the writ petitioner suppressed, at the time of his appointment, material information that he was facing trial in a criminal case under Sections 323, 504, 308, 506 IPC. The learned Judge also expressed agreement with the respondents in concluding that the judgment of acquittal, that was passed in the writ petitioner's case, was founded on a compromise, where prosecution witnesses contradicted themselves. The learned Judge has applied the parameters of the law laid down in Avtar Singh v. Union of India and others, (2016) 8 SCC 471 and Union of India and others v. Methu Meda, (2022) 1 SCC 1 to hold that there was suppression of material facts by the writ petitioner, and further, that no benefit could be extended to the writ petitioner on ground that he was acquitted, because the charge under Section 308 IPC was not one of a trivial nature. It was also held that the acquittal was not a clean acquittal.
10. Before this Court, Mr. Vivek Saran, learned Counsel for the writ petitioner has urged that the learned Single Judge has overlooked the parameters laid down in Avtar Singh's case (supra), in that, that he has not assessed the impact of the case against him for the purpose of judging the writ petitioner's suitability and fitness for the post that he holds, that is to say, a driver. It is argued that the learned Single Judge has proceeded to uphold the termination of the writ petitioner's services on the ground alone that there was a criminal trial pending against him, which he did not disclose at the time of verification. It is also urged that the writ petitioner did not have knowledge about the FIR at the time he filled up the verification form. Therefore, the non-disclosure would not amount to concealment. The petitioner is scantly educated, to wit, up to the 8th standard and was hardly aware about the importance or consequences of non-disclosure in the attestation form relating to the case. It is in the end submitted by the learned Counsel that once the writ petitioner has been acquitted, the allegations against him stand wiped out.
11. Mr. Prateek Sinha, learned State Law Officer has supported the impugned judgment and says that the writ petitioner was involved in a heinous offence. It was his duty to disclose the fact at the time he filled up his verification form. According to Mr. Sinha, the writ petitioner's misconduct emanates from non-disclosure and suppression of the fact when he filled up the form, quite apart from his unsuitability for the post given the fact that was involved in a heinous offence. It is also argued that the writ petitioner's criminal propensities cannot be held wiped out, because the judgment passed by the learned Additional Sessions Judge shows that the acquittal was a consequence of the prosecution witnesses turning hostile in the background of a compromise entered into between parties. The submission, therefore, is that this is not a case where the law in Avtar Singh's case would come to the writ petitioner's rescue.
12. The thrust of the writ petitioner's defence before the respondents was that the day he filled up his verification form, to wit, May 12, 2003, he did not know that an FIR had been registered against him on July 31, 2002. The respondents have not believed this stand of the writ petitioner and in the counter affidavit, they say that it is not possible that about an FIR registered against the writ petitioner on July 31, 2002, he would not know until May 12, 2003. It is a possibility in the opinion of this Court both ways. The writ petitioner has consistently taken a stand that he was never arrested in the crime or sent to jail. Had he been arrested and bailed out, those documents would clearly indicate whether he had knowledge or not on the date, he filled up the verification form, that is to say, May 12, 2003. The respondents ought to have ascertained that fact, because the writ petitioner's stance is that he was never arrested. A perusal of the judgment passed by the learned Sessions Judge carries one important fact about the matter. It mentions that the case was committed by the Magistrate to the Sessions in the month of March, 2004. The date is not clearly mentioned and it is not material either. The reason is that by time the case was committed to the Sessions, the writ petitioner must have appeared and secured bail before committal. That day is in the month of March, 2004. Therefore, the possibility cannot be ruled out that on May 12, 2003, when the writ petitioner filled up the verification form, he did not know about the crime altogether.
13. It is the writ petitioner's case that it was a sudden fight over land between his family members and co-sharers. In the FIR, no doubt, the petitioner has been nominated with a role of assault with a Kudal. It could be true or untrue. But, given the fact that the witnesses have turned hostile and contradicted themselves with parties in the backdrop entering into a compromise, it cannot be said with certainty if the petitioner was indeed involved. It is possible that he was. And, it is equally possible that his name was dragged in by a relative or a co-sharer out of malice and ill-will and by that time he had been selected in government service.
14. In judging the truth of these allegations and proceeding to take action, the State employers cannot adopt thumb rules or straitjacket formulae. There are some hard realities in the social milieu of Indian way of life, particularly the rural areas, where the prospect of a young man from another's family joining government service, more often than not, evokes base emotions of jealousy and hatred amongst relatives, co-sharers and friends, who wish the government appointment undone with no ostensible gain to themselves. Many FIRs of this kind would be noticed to be lodged on the eve of selection or appointment of young men to government jobs. One might think that what the learned Counsel for the State says is the view to follow in the case of a heinous crime. Because after all, if a heinous crime has been committed, one cannot think that the corpus delicti is a creation of jealousy or machination. In a situation of this kind, Avtar Singh's case lays down comprehensive guidelines, which ought to be followed before taking action.
15. It is perhaps for the said reason that once an employee is appointed to government service on a regular and permanent basis, like the present case, a charge about suppression of the fact of involvement in a criminal case has not been favoured in Avtar Singh's case to be dealt with summarily with termination of services on just an explanation being called, or a show cause given. In cases of government servants, who are regularly appointed, the course of action that is favoured by the Supreme Court in Avtar Singh is the holding of disciplinary proceedings with a proper inquiry to ascertain the charge of suppression and the involvement of the employee concerned in the crime. In this connection, reference may be made to the comprehensive guidelines laid down by the Supreme Court in Avtar Singh that the employer has to be guided by before taking a decision to terminate an employee's services, who has held back information about involvement in a criminal case or conviction etc. In Avtar Singh, it has been held:
"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.
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."
16. Now, in this case, nothing has been pleaded or shown that the writ petitioner was a temporary hand or probationer. He was regularly selected and appointed to a substantive post. The order of termination from service dated July 21, 2006 or the show cause notice dated February 27, 2004, does not show, by as much as a hint, that the writ petitioner was a probationer. If he were, he could have been easily discharged from service. The record shows that the respondents have proceeded against the writ petitioner taking him to be a confirmed employee. Even otherwise, by the time the impugned order came to be passed, the writ petitioner was in service for a period of about four years. In these circumstances, given the various facts, that have to be inquired into before the decision to terminate an employee's services on ground of suppression about involvement in a criminal case is taken, the imperative course for the respondents required would be to hold disciplinary proceedings against the writ petitioner. He could not have been thrown out by issuing a show cause notice to him and asking him to respond in 15 days. Surprisingly, in this case, the show cause notice was issued to the writ petitioner on February 27, 2004, to which the writ petitioner submitted a reply on April 15, 2004, but the impugned order came to be passed on July 21, 2006. During this long period of time, regular departmental proceedings could be conveniently held, where every fact could be ascertained threadbare. As already remarked, the decision in Avtar Singh also makes it relevant inquiry to the exercise of powers on ground of suppression of the fact of involvement in a criminal case, whether the employee had knowledge of the fact about his involvement. In this connection, Paragraph No. 38.11 of the report in Avtar Singh is relevant. The necessity to hold a departmental inquiry against a confirmed employee is mentioned in Paragraph No. 38.9 of the report in Avtar Singh. That is why this Court is inclined to think that a regular departmental inquiry ought to be held in such cases. There are many parameters that the employer must ascertain before deciding to exercise their discretion to terminate an employee from service, who has suppressed the fact about involvement in a criminal case. These various facts have been elaborately laid down in Avtar Singh's case, where it is observed:
"28. This Court has also opined that before a person is held guilty of suppression of a fact it has to be considered whether verification form is precise and is not vague, and what it required to disclose. In Daya Shankar [Daya Shankar Yadav v. Union of India, (2010) 14 SCC 103 : (2011) 2 SCC (L&S) 439] it was held that in case verification form is vague no fault can be found on the ground of suppression. However, facts which have come to knowledge it has to be determined by employer whether antecedents of incumbent are good for service, to hold someone guilty of suppression, query in the form has to be specific. Similarly, in B. Chinnam Naidu [Deptt. of Home, A.P. v. B. Chinnam Naidu, (2005) 2 SCC 746 : 2005 SCC (L&S) 323] when column in verification form required to disclose detention or conviction, it did not require to disclose a pending criminal case or fact of arrest, removal on the ground of material suppression of pending case and arrest was set aside as that was not required to be disclosed.
29. The verification of antecedents is necessary to find out fitness of incumbent, in the process if a declarant is found to be of good moral character on due verification of antecedents, merely by suppression of involvement in trivial offence which was not pending on date of filling attestation form, whether he may be deprived of employment? There may be case of involving moral turpitude/serious offence in which employee has been acquitted but due to technical reasons or giving benefit of doubt. There may be situation when person has been convicted of an offence before filling verification form or case is pending and information regarding it has been suppressed, whether employer should wait till outcome of pending criminal case to take a decision or in case when action has been initiated there is already conclusion of criminal case resulting in conviction/acquittal as the case may be. The situation may arise for consideration of various aspects in a case where disclosure has been made truthfully of required information, then also authority is required to consider and verify fitness for appointment. Similarly in case of suppression also, if in the process of verification of information, certain information comes to notice then also employer is required to take a decision considering various aspects before holding incumbent as unfit. If on verification of antecedents a person is found fit at the same time authority has to consider effect of suppression of a fact that he was tried for trivial offence which does not render him unfit, what importance to be attached to such non-disclosure. Can there be single yardstick to deal with all kinds of cases?
30. The employer is given "discretion" to terminate or otherwise to condone the omission. Even otherwise, once employer has the power to take a decision when at the time of filling verification form declarant has already been convicted/acquitted, in such a case, it becomes obvious that all the facts and attending circumstances, including impact of suppression or false information are taken into consideration while adjudging suitability of an incumbent for services in question. In case the employer comes to the conclusion that suppression is immaterial and even if facts would have been disclosed it would not have adversely affected fitness of an incumbent, for reasons to be recorded, it has power to condone the lapse. However, while doing so employer has to act prudently on due consideration of nature of post and duties to be rendered. For higher officials/higher posts, standard has to be very high and even slightest false information or suppression may by itself render a person unsuitable for the post. However, same standard cannot be applied to each and every post. In concluded criminal cases, it has to be seen what has been suppressed is material fact and would have rendered an incumbent unfit for appointment. An employer would be justified in not appointing or if appointed, to terminate services of such incumbent on due consideration of various aspects. Even if disclosure has been made truthfully, the employer has the right to consider fitness and while doing so effect of conviction and background facts of case, nature of offence, etc. have to be considered. Even if acquittal has been made, employer may consider nature of offence, whether acquittal is honourable or giving benefit of doubt on technical reasons and decline to appoint a person who is unfit or of dubious character. In case employer comes to conclusion that conviction or ground of acquittal in criminal case would not affect the fitness for employment, incumbent may be appointed or continued in service."
17. It would also be relevant to inquire in this case that given the nature of the crime alleged against the writ petitioner on one hand and the nature and level of the writ petitioner's job on the other, would the employer find him unsuitable to hold it. All of this would require careful consideration and a regular departmental inquiry, which have not been undertaken in this case. There is further guidance by the Supreme Court on this point in the recent decision of their Lordships in Pawan Kumar v. Union of India and another, 2022 SCC OnLine SC 532. In Pawan Kumar (supra), it has been observed:
"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."
18. Here, a perusal of the impugned orders, that have been passed both by the Excise Commissioner and the State Government, show not the slightest consideration of the various factors that ought to be taken into account before a decision is taken to terminate a employee's services on ground of suppression of the fact about his involvement in a criminal case. Both the orders betray mechanical approach and formula decision making that the crime being one involving a charge under Section 308 IPC, which was registered on the date of verification by the writ petitioner, but not disclosed, must inevitably lead to termination of the writ petitioner's services. This, in our considered opinion, is an utterly flawed approach. This we say quite apart from the fact that a regular departmental inquiry ought to have been held in this case.
19. We may not be misunderstood to say that it is not open to the respondents still to take the same view after holding regular departmental proceedings and carefully considering the matter on all parameters. All that we say is that a formula conclusion from certain objective facts ought not to be the respondents' approach. Else, the action of the respondents would be arbitrary as is the case with the orders impugned here.
20. In the circumstances, this appeal succeeds and is allowed. The impugned judgment and order passed by the learned Single Judge is set aside. The writ petition is allowed. The impugned order dated July 21, 2006 passed by the Excise Commissioner, U.P., Allahabad and the order dated March, 10, 2008 by the Principal Secretary, Government of U.P., Excise Department, Lucknow are hereby quashed. The writ petitioner shall be entitled to be reinstated in service forthwith with continuity of service and all consequential benefits on a notional basis, including pay, seniority etc. However, the writ petitioner shall not be entitled to arrears of salary for the period, during which he was not in service. It would be open to the respondents to issue the writ petitioner a charge sheet and hold disciplinary proceedings in accordance with law.
Allahabad January 31, 2023 Anoop (J.J. Munir) Judge (Rajesh Bindal) Chief Justice Whether the order is speaking :
Yes/No Whether the order is reportable :
Yes