Allahabad High Court
Anubhav Saroha vs State Of U.P. And 6 Others on 14 October, 2022
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 37 Case :- WRIT - A No. - 5846 of 2022 Petitioner :- Anubhav Saroha Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Pradeep Kumar Chaurasia Counsel for Respondent :- C.S.C. Hon'ble Mrs. Sangeeta Chandra,J.
(Oral)
1. Heard learned counsel for the petitioner and also perused the counter affidavit that has been served upon him today.
2. The counter affidavit is taken on record.
3. It is apparent there from that the candidature of the petitioner was cancelled only on the ground that during character verification he furnished an affidavit dated 22.02.2021 in which he had stated that he had not been convicted in any criminal case nor there is any FIR under investigation or any criminal case pending against him, on making verification it has come to light that Case Crime No. 265 of 2016 under Section 147, 323, 504, 506 IPC and 3(1)10 SC/ST Act was pending against the petitioner at the time he filed such affidavit, therefore, his candidature has been cancelled.
4. It is the contention of the learned counsel for the petitioner that he had himself filed an affidavit on 19.06.2021 before the District Magistrate during character verification stating that he was an accused in Case Crime No. 265 of 2016 and the fact having been disclosed it cannot be said the petitioner had resorted to any concealment.
5. It has also been submitted by the learned counsel for the petitioner that the petitioner alongwith others had filed application under Section 482, bearing No. 11958 of 2021, 'Kallu Singh and 12 Others vs. State of U.P. and Another', for quashing of the entire proceedings in Sessions Trial No. 174 of 2019 arising out of Case Crime No. 265 of 2016 registered at PS.Jhinjhana, District Shamli pending in the Court of Additional District Judge, (R&P) Shamli on the basis of compromise entered into between the complainant/informant and the accused.
6. This Court having placed reliance upon various judgements of the Supreme Court and also having considered the compromise entered into between the parties, accepted the same and quashed the entire proceedings of Sessions Trial No. 174 of 2019 arising out of the case Crime No. 265 of 2016 by its judgement and order dated 21.09.2021, a copy of which has been filed as Annexure-8 to the writ petition.
7. It has been submitted that in view of the observations made by the Supreme Court in the case of Avtar Singh Versus Union of India and Others 2016 (8) SCC 471, the decision of cancellation of candidature of the petitioner should be reconsidered.
8. Learned counsel for the State Respondents has pointed out paragraph 24 of the counter affidavit that the petitioner had concealed the facts of Criminal Case being pending against him in his affidavit, and therefore, he is not a suitable candidate for appointment in Police Services which are a disciplined force and need utmost integrity on the part of its personnel.
9. Having considered the rival submissions, this Court has also considered judgement passed by the Supreme Court in the case of Pawan Kumar Vs. Union of India in Civil Appeal No. 3574 of 2022 decided on 02.05.2022, thethe Supreme Court was considering challenge to discharge order of a recruit to the Railway Protection Force. Applications had been invited in February 2011. The appellant had filled up the application form at a time when no criminal case was pending against him. Subsequently an FIR are came to be registered on 04.04.2011 under Sections 148/149/323/506/356IPC. The appellant was honourably acquitted in August 2011 by the competent court. This fact was not disclosed by him when he filled up his attestation form on 27.05.2014, that he was prosecuted at one stage and this being a case of suppression of information/false declaration in the Verification Form he was discharged while making reference to Clause 9 (F) of the Railway Protection Force Rules 1987, where it was provided that:-
"candidates found to be having adverse report on their antecedents and character may not be appointed in RPF including RPSF. False Declaration is an offence under the law which will lead to disqualification of the applicant, institution of criminal case and also dismissal from service, if appointed. Hence, applicants are advised to be careful while filling in the application."
10. In the Attestation Form Clause 12(A) required the candidate to disclose whether he had ever been arrested? To such a query the appellant had stated "No". Under Clause 12(B) the candidate was required to disclose whether he had ever been prosecuted. The appellant replied in the negative. This was deliberate suppression of information. Under Railway Protection Force Rules 1987, Rule 52 requires the character and antecedents of a selected candidate to be verified before his formal appointment in the force. Where after verification a recruit is not found suitable for the force, he shall not be appointed as a member of the force.
11. The Supreme Court observed in Pawan Kumar (supra) that it cannot be disputed that a candidate who intends to participate in the selection process is always required to furnish correct information relating to his character and antecedents in the Verification/Attestation form before and after induction into service. It is also equally true that a person who has suppressed material information or has made false declaration has no unfettered right of seeking appointment or continued in service, but the Supreme Court quoted the Larger Bench decision in Avtar Singh Vs. Union of India 2016 (8) SCC 471 and paragraph 34 and 35 thereof, where the Supreme Court had observed that verification of character and antecedents is one of the important criteria to assess suitability and it is always open for the employer to adjudge the antecedents of the incumbent, but ultimate action should be based upon objective criteria on due consideration of all relevant aspects. Suppression of material information presupposes that what is suppressed is what ''matters' and not every technical or trivial matter. A person who has suppressed information may not claim unfettered right for appointment or continuance in service but he has a right not to be dealt with arbitrarily, and the exercise of power has to be in reasonable manner with objectivity having due regard to the facts of the case. 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 for uniformed Services. For posts which are not sensitive, impact of suppression on suitability has to be considered by authorities concerned considering nature of duties/services and power has to be exercised on due consideration of various aspects. The Supreme Court in Avtar Singh''s case had observed in paragraph 37 that chance of reformation has to be afforded to young offenders in suitable cases, and interplay of reformative theory cannot be ruled out in toto nor can it be generally applied, but it is one of the factors to be taken into consideration while exercising the power for cancelling candidature or discharging an employee from service.
12. The Supreme Court had observed in paragraph 38.4 in Avtar Singh(Supra) that in case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filing of Application/Verification form and such factor later comes to the knowledge of the employer, it may take recourse to either of the options enumerated under subparas of para 38.4.
13. It observed in paragraph 38.4.1 that 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 facts or false information by condoning the lapse. Under paragraph 38.4.3 the Supreme Court had observed that 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 as available as to the antecedents and may take appropriate decision as to the continuance of the employee. The Supreme Court observed in Pavan Kumar(Supra) that mere suppression of material/false information regardless of the fact where 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. The effect of suppression of material/false information involving a criminal case is left for the employer to consider taking into account all relevant facts and circumstances available and also the relevant Service Rules. With regard to the facts of the case, the Supreme Court observed in Pavan Kumar(Supra) that indisputably when the appellant had filled up the application form, no criminal case was either instituted or pending against him. Before his selection however a criminal case was instituted in which he was honourably acquitted. Therefore at the time of filling up of the attestation form also, he could not have been said to be facing prosecution.
14. The Supreme Court also distinguished the judgement rendered in Rajasthan Rajya Vidyut President Nigam Ltd and Another Vs. Anil Kanwariya 2021 (10) SCC 136; where the respondent had been convicted before submitting his application and this fact was not disclosed by him. The court also observed that the appellant Pawan Kumar had been accused of an offence of trivial nature where he had been honourably acquitted ultimately by the court of competent jurisdiction. The court therefore set aside the discharge orders and the respondents were directed to reinstate the appellant in service on the post of constable but he was not to be paid arrears of salary for the period he had not served although he would be entitled for all notional benefits including that of pay fixation and seniority.
15. It is apparent from the views expressed by the Supreme Court in Pawan Kumar Vs. Union of India that mere failure to mention that a candidate had faced prosecution would not lead to his termination automatically. The nature of the suppression and as to whether it was deliberate has to be considered by the authorities. I am of the considered opinion that the action of the Respondents is unduly harsh, the writ petition stands allowed, the respondent no. 4 is directed to pass appropriate orders taking into account the observations made by this Court herein above within a period of six weeks from the date a copy of this Order is produced by him.
Order Date :- 14.10.2022 Darpan Sharma