Allahabad High Court
The Director General, Railway ... vs Rajiv Kumar Singh on 26 February, 2020
Author: Biswanath Somadder
Bench: Biswanath Somadder, Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 7 Case :- SPECIAL APPEAL No. - 65 of 2020 Appellant :- The Director General, Railway Protection Force Railway Board, New Delhi And 2 Others Respondent :- Rajiv Kumar Singh Counsel for Appellant :- Praveen Kumar Srivastava Counsel for Respondent :- Vijay Gautam, Senior Advocate assisted by Ambrish Chatterji Hon'ble Biswanath Somadder,J.
Hon'ble Dr. Yogendra Kumar Srivastava,J.
(Per : Dr. Yogendra Kumar Srivastava,J.)
1. The present special appeal has been filed against the judgment and order dated 21.10.2019 passed in Writ-A No. 37611 of 2002 (Rajiv Kumar Singh Vs. Director General/R.P.F. and others) whereby the writ petition has been allowed and the orders dated 22.07.2002, 31.5.2001 and 12.4.2001, which were under challenge therein, have been set aside.
2. A preliminary objection has been raised by the learned Senior Counsel appearing for the respondent-petitioner that the special appeal is not maintainable as per the provisions contained under Chapter VIII Rule 5 of the Allahabad High Court Rules (Rules of the Court, 1952)1 inasmuch as the writ petition had been filed seeking to challenge the order of termination against the petitioner as also the orders passed in appeal and revision under the statutory rules.
3. The provision with regard to filing of an intra-court appeal under the Rules of the Court, 1952, is contained under Chapter VIII Rule 5 of the aforementioned Rules, and the same is as follows :-
"5. Special appeal :- An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of Appellate Jurisdiction) in respect of a decree or order made by a Court subject to the Superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of Superintendence or in the exercise of criminal jurisdiction or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award--(a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of Appellate or Revisional Jurisdiction under any such Act of one Judge."
4. The language under Rule 5, referred to above, is couched in a manner whereunder an intra-court appeal would not lie in certain specified cases. The Rule provides for certain specified exclusions whereunder a special appeal would not lie from a judgment of one judge of this Court. The exclusions under Chapter VIII Rule 5 of the Rules of the Court, 1952 were considered in the case of Vajara Yojna Seed Farm and Ors. Vs. Presiding Officer, Labour Court II and Ors.2 , and it was held as under :-
"64. From the above discussions and looking into the provisions of U.P. Act No. 14 of 1962 as amended by Amendment Act of 1981 and Chapter VIII, Rule 5 of the Rules of the Court, 1952, special appeal is excluded from a judgment of one Judge of this Court in following categories :-
(i) Judgment of one Judge passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court.
(ii) Judgment of one Judge in the exercise of revisional jurisdiction.
(iii) Judgment of one Judge made in the exercise of its power of Superintendence.
(iv) Judgment of one Judge made in the exercise of criminal jurisdiction.
(v) Judgment of order of one Judge made in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award of a Tribunal, Court or Statutory Arbitrator made or purported to be more in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in State List or Concurrent List.
(vi) Judgment or order of one Judge made in exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award by the Court or any officer or authority made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any Uttar Pradesh Act or under any Central Act."
5. The issue of maintainability of a special appeal under the aforementioned Rule again came up for consideration before a Full Bench of this Court in Sheet Gupta vs. State of U.P. and others3, and it was stated thus:-
"15. Having given our anxious consideration to the various plea raised by the learned counsel for the parties, we find that from the perusal of Chapter VIII Rule 5 of the Rules a special appeal shall lie before this Court from the judgment passed by one Judge of the Court. However, such special appeal will not lie in the following circumstances:
1. The judgment passed by one Judge in the exercise of appellate jurisdiction, in respect of a decree or order made by a Court subject to the Superintendence of the Court;
2. the order made by one Judge in the exercise of revisional jurisdiction;
3 the order made by one Judge in the exercise of the power of Superintendence of the High Court;
4. the order made by one Judge in the exercise of criminal jurisdiction;
5. the order made by one Judge in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution of India in respect of any judgment, order or award by
(i) the tribunal,
(ii) Court or
(iii) statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India;
6. the order made by one Judge in the exercise of jurisdiction conferred by Article 226 or 227 of the Constitution of India in respect of any judgment, order or award of
(i) the Government or
(ii) any officer or
(iii) authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act, i.e. under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India. "
6. The various exclusions provided for under Rule 5 of Chapter VIII whereunder an intra-court appeal would not lie would therefore include a case where an appeal is sought to be preferred against an order made by one judge in exercise of jurisdiction conferred by Article 226 or 227 of the Constitution of India in respect of any judgment, order or award of the government or any officer or authority made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any Uttar Pradesh Act or any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India.
7. The question of maintainability of a special appeal under the Rules of the Court, 1952, in the context of a judgment rendered by a Single Judge in exercise of jurisdiction conferred by Article 226 and 227 of the Constitution in respect of judgment, order or award of a tribunal, Court or statutory arbitrator made in exerecise of jurisdiction under Uttar Pradesh or Central Act with respect to a matter enumerated in the Union List earlier came up for consideration in the case of Oriental Bank of Commerce, Kanpur Vs. Union of India (UOI) and Ors.4, and it was stated as follows:-
"4. Rule 5 of Chapter VIII of the High Court Rules, on the interpretation of which depends the decision on the point, reads as follows:
5. Special Appeal -- An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award -- (a) of a Tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated, in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge.
On a plain reading of the above provision, it is clear that if the judgment of the learned single Judge has been passed in exercise of the jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award of a Tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act with respect to any of the matters enumerated in the State List or the Concurrent List of the Seventh Schedule to the Constitution or of the Government or any officer or authority made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act, then no appeal shall lie against the judgement of the single Judge. If on the other hand, the judgment of the single Judge is rendered with respect to any matter enumerated in the Union List, then an appeal may be filed against the judgment. " (emphasis supplied)
8. In a similar set of facts, as in the present case, whereunder objection was raised against maintainability of a special appeal challenging the judgment rendered by a Single Judge whereby an order of punishment and also the appellate and revisional orders thereagainst under the Cental Reserve Police Force Act, 1949, were questioned, a Division Bench of this Court in the Director General, C.R.P.F. Vs. Lalji Pandey5, repelled the objection and held the special appeal maintainable after taking into consideration that the subject matter in question was referable to armed forces of Union which was under the Union List. The observations made in the judgment are as follows :-
"11. From bare perusal of the above decision it is very much clear that no special appeal shall lie against the order made by Single Judge in exercise of jurisdiction conferred by Article 226 or 227 of the Constitution of India in respect of any judgment, order or award of the government or any officer or any authority made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act i.e., under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the 7th Schedule to the Constitution of India. Meaning thereby that in case the order under challenge in writ jurisdiction before the learned Single Judge was the order passed by the Government or any officer or any authority made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Central Act with respect to any of the matters enumerated in the Union List then the special appeal would be maintainable.
12. It is relevant to notice here that the Central Reserve Police Force Act, 1949 has been enacted in exercise of powers conferred to the Central Government under Paragraph 1 of List-I of 7th Schedule to the Government of India Act, 1935, which is presently Entry-2, List-I of the 7th Schedule of the Constitution of India.
Entry 2 of List-I (Union List) of 7th Schedule provides as under:
Naval, military and air force; any other armed forces of the Union.
13. In the case of Akhilesh Prasad v. Union Territory of Mizoram, AIR 1981 Supreme Court 806, it has been held that any other armed force of the Union includes the Central Reserve Police Force. Therefore, it can easily be concluded that the Central Reserve Police Force is covered under any other armed forces of the Union as provided in Entry 2, List-I (Union List) of the 7th Schedule of the Constitution of India.
14. In view of above, the present special appeal is maintainable and the preliminary objection raised by the respondent having no legal force is hereby rejected."
9. It is therefore seen that in a case, where the order under challenge before learned Single Judge exercising jurisdiction conferred by Article 226 or Article 227 of the Constitution of India, is in respect of any judgment, order or award by a Court or any officer or authority made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any Uttar Pradesh or under any Central Act with respect to any of the matters enumerated in the Union List under the Seventh Schedule to the Constitution of India, a special appeal under Chapter VIII Rule 5 of the Rules of the Court, 1952, would lie.
10. In the case at hand, the appellate and revisional orders have been passed by authorities under the provisions of the Railway Protection Force Rules,19876.
11. The Rules 1987 have been made by the Central Government in exercise of powers conferred by Section 21 of the Act, 1957. The Railway Protection Force Act and the Rules made thereunder would be referable to the subject matter under Entry 22 of List 1 of the Seventh Schedule, which reads as follows :-
"22. Railways".
12. The appellate and revisional jurisdiction having thus been exercised under a Central Act in respect of a matter enumerated under the Union List and not in respect of a matter under the State List or the Concurrent List of the Seventh Schedule of the Constitution of India, the exclusion under Chapter VIII Rule 5 would not be attracted, and therefore the special appeal would be maintainable, and the objections raised by the learned senior counsel appearing for the respondent-petitioner with regard to maintainability of the special appeal cannot be sustained.
13. The facts of the case, as reflected from the records, are that the services of the petitioner who was working as a Constable in the Railway Protection Force, were terminated by an order dated 12.04.2001 passed by the Divisional Security Commissioner, Railway Protection Force, Samastipur on the ground that he had deliberately concealed the fact relating to the pendency of a criminal case registered as Case Crime No. 234 of 1993 dated 20.11.1993 under Sections 147, 148, 149, 323, 307, 504 and 506 IPC, in the declaration form submitted by him. The appeal filed there against under the provisions of the Railway Protection Force Act, 19577 was rejected by an order dated 31.5.2001 passed by the Chief Security Commissioner, Railway Protection Force, Gorakhpur. The petitioner thereafter preferred a revision, which too was rejected by means of an order dated 27.7.2001 passed by the Director General Railway Protection Force Railway Board, New Delhi.
14. The aforementioned orders were assailed by the petitioner by filing a writ petition, Writ-A No. 37611 of 2002, raising various grounds.
15. A detailed counter affidavit was filed on behalf of the respondents (appellants herein) inter alia submitting as under :-
"2.That before giving para-wise reply, it is therefore, expedient and necessary in the interest of justice to submit brief facts of the case which are as under:
(i) That in pursuance of the Employment Notice No. 1/96 issued on 01.11.96, the petitioner was selected and temporarily appointed on the post of constable in Railway Protection Force of N.E. Railway, Gorakhpur.
(ii) That after the selection, of the petitioner, a letter No. E/P/227/1/3 Pt-XI/1017 dated 08.09.1997 was issued to him by the Assistant Security Commissioner/N.E. Railway/Gonda through which he was called upon to fill up the declaration attestation form. In para- 18 of the aforesaid letter dated 08.09.1997, it was clearly stated that the appointment on the post of constable in R.P.F. will be subject to the satisfactory report from the Police authority about the character of the petitioner.
Photostat copy of the letter dated 08.09.1997 is being filed as Annexure No. CA-1 to the Counter Affidavit.
(iii) That it is further relevant to mention that at the top of the page no. 2 of the Attestation form, it was clearly mentioned that any wrong information or concealment of the true facts in the attestation form will be unsuitability and such person can be declared as unsuitable for the Government service. It was also mentioned that at any time during the service if it comes into knowledge that any false information has been given or true facts have been concealed in the attestation form by any candidate he can be discharged from service. It was also mentioned at page no. 4 Column (12) (i) of the attestation form that whether any case is pending in any court against him at the time of filling the attestation form, the petitioner concealed the true fact and answered in negative.
Photostat copy of the attestation form is being filed as Annexure No. C.A.-2 to this Counter affidavit.
(iv)That it is further submitted that in the police verification report submitted by the police authority through District Magistrate, Deoria about the petitioner it was found that the petitioner was an accused in a criminal case No. 234/93 under Section-147, 148, 149, 307, 323 and 504 I.P.C., P.S. Lar, District-Deoria and the same is still pending. Thus it is clear that the petitioner concealed the true facts and mislead the Railway Administration in obtaining Government Service on the post of constable in R.P.F. For the aforesaid concealment, the petitioner was issued charge sheet under Rule-153 of the R.P.F. Rules, 1987. The allegation against him was that he mislead the department and disobeyed the Rule 146.6 (IV) of R.P.F. Rule 1987.
(v) That a disciplinary enquiry was conducted as per Rules against the petitioner and the charges leveled against him were found proved. The Enquiry Officer submitted enquiry report to the disciplinary authority and the copy of the same was also given to the petitioner on 25.02.2001 and the petitioner submitted his defence/reply on 17.03.2001.
(Vi) That the disciplinary authority passed the order of removal from service dated 12.04.2001 after considering the entire material facts and circumstances as well as the relevant records. The petitioner preferred appeal as well as revision which were rejected by the competent authorities i.e. Chief Security, Commissioner, N.E. Railway, Gorakhpur and Director General, RPF, Railway Board, New Delhi on 31.05.2001 and 22.07.2002 respectively.
xxx 6- That the contents of para-5 the Writ Petition are not admitted and are vehemently denied. In reply it is submitted that a F.I.R. was lodge against the petitioner as well as others on 20.11.1993 against which the petitioner and others filed a Criminal Misc. Writ Petiton No.43732 of 1993; Kapildeo Singh & others Vs. State of U.P. and others and an iterim order was also passed on 2.12.1993. Later on the aforesaid writ petition was dismissed as having become infructuous on 11.2.1997. The petitioner as well as others filed a case u/s-482 Cr.P.C. in High Court for quashing the entire criminal proceedings in case crime No.234 of 1993 which is still pending. These facts have been disclosed by the petitioner in the Supplementary Affidavit filed by him in the present writ petition. Thus the averments of the petitioner in the para under reply that ''the petitioner was not well aware about the pendency of any criminal case against him and therefore this fact was not mentioned by the petitioner while filling up the character verification form" are totally false and concocted. The petitioner has concealed the true facts in the writ petition also and has tried to mislead the Hon'ble Court. Thus the petitioner has given the contradictory statements and which one is correct is not known. The petitioner has been rightly punished with the penalty of removal from service for the concealment of the true facts.
xxx
11. That the content of para 12,13,14,15, & 16 of writ petition need no reply being the matter of record. However it is submitted that the statement of the petitioner in the paras under reply that he did not make any false declaration as he was not aware about the pendency of the criminal case, are totally false. In the supplementary affidavit filed by the petitioner, it has been specifically mentioned that a F.I.R. was lodged against him as well as others against which a Criminal Misc. Writ Petition No. 43732/1993 was filed and an intrim order was passed. Later on a case under section 482 Cr.P.C. was also filed in this Hon'ble Court which is pending. Thus petitioner was fully aware about the criminal case pending against him in which he was bailed out but he concealed this fact in his declaration form intentionally."
16. A rejoinder affidavit was filed by the petitioner in reply to the aforesaid counter affidavit whereunder the petitioner inter alia submitted as under :-
"4(d). That, it is relevant to mention here that the applicant filled up his Attestation Form in the month of September 1997, and that time the applicant was not disclosed the criminal case because the applicant was in impression that he would be acquitted from criminal charges for the reason that he has been falsely implicated in the aforesaid criminal case therefore the applicant has not disclosed the aforesaid criminal case at the time of filing up the attestation form."
17. Contention of learned counsel for the appellants is that despite there being a specific clause in the declaration form requiring the petitioner to furnish particulars of the pendency of any case before any court, the fact with regard to the pendency of the criminal case was deliberately suppressed by the petitioner and in view thereof his services were rightly terminated. It has been submitted that learned Single Judge though has extracted the relevant clause in his judgment, yet he has held that there was no clause in the declaration form wherein pendency of a criminal case was required to be disclosed, and solely on the basis of the said reasoning, the orders which were challenged in the writ petition have been set aside and the writ petition has been allowed.
18. Learned Senior Counsel appearing for the petitioner respondent has supported the order passed by the learned Single Judge and tried to contend that there being no clause in the declaration form specifically requiring information with regard to pendency of criminal proceedings there was no occasion for the petitioner to give any such information and accordingly the orders passed by the departmental authorities were rightly set aside by the learned Single Judge.
19. Rival contentions fall for consideration.
20. The outcome of the case rests upon the fact as to whether in terms of the relevant clause in the declaration form the petitioner was required to disclose any information with regard to pendency of a criminal case, and, further, whether on account of non-disclosure of the said fact the petitioner could be held to be guilty of the suppression of material information.
21. The information required to be furnished in the declaration form in para 12, which has been duly extracted in the judgment of the learned Single Judge, is as follows:-
"12 ¼i½ ¼d½ D;k vki dHkh fxj¶rkj gq, gSa\ ¼[k½ D;k dHkh vki dk pkyku gqvk gSa\ ¼x½ D;k vki dHkh cUnh ds :i esa j[ks x;s gSa\ ¼?k½ D;k vki dHkh ifjcfU/kr fd, x;s gSa\ ¼M+½ D;k dHkh fdlh U;k;ky; }kjk vki ij tqekZuk fd;k x;k gSa\ ¼p½ D;k dHkh fdlh U;k;ky; }kjk vfHk'kLr fd, x, gSa\ ¼N½D;k vki fdlh fo'ofo|ky; vFkok fdlh vU; f'k{kk izkf/kdkjh@laLFkk }kjk fdlh ijh{kk ls oftZr vFkok fu"dkflr fd, x;s gSa\ ¼t½ D;k dHkh dHkh jsy vFkok yksd lsok vk;ksx }kjk bldh fdlh ijh{kk@pquko esa Hkkx ysus ls fuoftZr vk;ksX; ?kksf"kr fd; x;s gSa\ ¼>½ D;k bl lk{;adu&i= dks Hkkjrs le; vki ds fo:) fdlh U;k;ky; esa dksbZ ekeyk fopkjk/khu gSa\ ¼¥½ D;k bl lk{;a;&i= dks Hkjrs le; vki ds fo:) fdlh fo'ofo|ky; vFkok fdlh izkf/kdkjh ds ;gka laLFkk esa dksbZ ekeyk fopkjk/khu gSa\ ¼ii½ ;fn mi;qDr iz'uksa esa ls fdlh dk mRrj *gka* gks rks ml ekeys fxj¶rkjh@cUnh cuk, tkus tqekZuk vfHkf'kLr n.Mkns'k@ltk bR;kfn rFkk vFkok bl QkeZ dks Hkjrs le; U;k;ky;@fo'ofo|ky; f'k{k.k@izkf/kdkjh bR;kfn ds ;gkW fopkjk/khu ekeys dk fooj.k nsa."
22. The english translation of the aforementioned para 12 of the declaration form, as given in the judgment of the writ court, is also being extracted below.
"12(i)(a) Whether you have ever been arrested?
(b) Whether you have ever been challaned?
(c) Whether you have ever been detained?
(d) Whether you have ever been bound?
(e) Whether any fine has ever been imposed by court on you?
(f) Whether you have ever been convicted by any court ?
(g) Whether you have ever been forbidden or expelled from any examination by any university or any other educational authority/institution?
(h) Whether you have ever been disqualified or with-held by the Railways or the Public Service Commission from appearing in any examination/selection process conducted by them?
(I) Whether any case is pending before any court while filling this verification form?
(j) Whether any case is pending with any university or any authority of any institution while filling this verification form?
(k) If reply to any of the queries raised above is in 'yes', then kindly give the details of arrest/detention, fine, conviction / sentence/punishment etc. or of the matter pending with the court/university/educational authority etc."
23. A plain reading of the aforementioned para 12 of the declaration form clearly shows that as per terms of para 12 (i) ¼>½ or 12 (i) (I) as per english translation, the petitoner was specifically required to give a response to the following question.
"12 ¼i½ ¼>½ D;k bl lk{;adu&i= dks Hkkjrs le; vki ds fo:) fdlh U;k;ky; esa dksbZ ekeyk fopkjk/khu gSa\ "12(i) (I) Whether any case is pending before any court while filling this verification form?"
24. It is therefore clear that the declaration form which was filled up by the petitioner at the time of his entry into service specifically required the petitioner to disclose information with regard to any case pending before any court at the time of filling up the verification form.
25. It is not the case of the petitioner that there was no requirement in the declaration form to disclose the information with regard to pendency of any criminal case against him rather the defence sought to be put forward by the petitioner before the departmental authorities, as is evident from the grounds urged by him in his revision filed before the Director General Railway Protection Force Railway Board, New Delhi, is to the effect that the revisionist did not mention the pending criminal case in the character verification form inadvertently and not deliberately because he was not aware of the technicalities of the rules at that time. The aforementioned ground, as taken by the petitioner in the revision filed by him, is as follows :-
"14. That the revisionist did not mention the pending criminal case in the character verification form inadvertently and not deliberately because he was not aware of the technicalities of the rules at that time."
26. The lodging of an F.I.R., registration of the criminal case and the petitioner subsequently having been enlarged on bail, are facts which have been admitted in the writ petition also, as stated in paragraph 6 thereof, which reads as follows :-
"6. That it may be pointed out that due to enmity and rivalry in the village politics a first information report was lodged at Police Station-Lar, District-Deoria on 20.11.1993 by one Ramji Singh of the same village against 17 persons of village Barhiha Dalpat and name of the petitioner was also included with other villagers in the aforesaid information report. The F.I.R. was lodged under Sections 147, 148, 149, 323, 307, 504 & 506 I.P.C. and was registered as Crime Case No. 234/93 at P.S.-Lar, District-Deoria. The petitioner alongwith other villagers however have been granted bail in the aforesaid case."
27. Further, admission with regard to the pendency of the criminal case has also been made by the petitioner in his rejoinder affidavit and the reason which he has sought to furnish therein to justify the non-disclosure of the information of the pending criminal case is that he was under an impression that he would be acquitted of the criminal charges.
28. In the face of the aforementioned facts, the contention of the learned Senior Counsel appearing for the respondent-petitioner disputing the fact that in terms of the declaration required in the verification form there was no specific requirement with regard to disclosure of the information in respect of any pending case before any court at the time of filling up the verification form, cannot be accepted.
29. The purpose of verification of the character and antecedents is one of the criteria to test the suitability of a candidate for the post in question before appointment is made.
30. It is considered desirable that the incumbent should not have antecedents of such a nature which may adjudge him unsuitable for the post.
31. The order dated 12.04.2001 terminating the services of the petitioner has taken note of the fact that the petitioner had suppressed the material information with regard to pendency of the criminal case while filling up the declaration in the verification form at the time of his entry into service.
32. It is not in dispute that a criminal case under Sections 147, 148, 149, 323, 307 504 and 506 IPC, registered as Case Crime No. 234 of 1993, was pending at the relevant point of time, in the year 1997, when the petitioner filled up the verification form and did not disclose the information regarding pendency of the said criminal case.
33. The declaration required to be furnished as per clause 12 (i) of the verification form specifically required disclosure of information with regard to pendency of any case before any court at the time of filling up the verification form. The requirement of filling the particulars under clause 12 (i) of the aforesaid verification form was for the purpose of verification of character and antecedents of the petitioner respondent as on the date of filling the verification form.
34. Suppression of material information or making a false statement would have a clear bearing on the character and antecedents of the respondent in relation to his continuance in service. The purpose of seeking information as sought in clause 12 of the verification form may not be for the purpose of finding out the nature and gravity of the offence or the result of the criminal case ultimately but the same would have to be seen with a view to verify the character and antecedents of the respondent so as to judge his suitability for being appointed in service.
35. The constitution and regulation of the Railway Protection Force is provided for in terms of the Railway Protection Force Act, 1957 and in exercise of the rule making power conferred by Section 21 of the aforesaid Act, the Railway Protection Force Rules, 1987 were made. Rule 52 thereof provides for verification of character and antecedents to test the suitability of the recruit being appointed as a member of the force. Rule 52 of the Rules, 1987, reads as follows.
"52. Verification:
52.1. As soon as a recruit is selected but before he is formally appointed to the Force, his character and antecedents shall be got verified in accordance with the procedure prescribed by the Central Government from time to time.
52.2. Where after verification, a recruit is not found suitable for the Force, he shall not be appointed as a member of the Force."
36. The aforementioned Rule, which provides for verification of character and antecedents of a recruit, also provides that where after the verification a recruit is not found suitable for the force, he shall not be appointed as a member of the force.
37. It is therefore seen that as per Rule 52, referred to above, a prospective employee may be refused employment on the ground of unsatisfactory antecedents and character. Suppression of material information or making a false statement in reply to specific queries in the verification form which may lead to an inference of a dubious conduct and absence of character of the prospective employee at the time of making the declaration may therefore also be held as making him unsuitable for being appointed as a member of the force.
38. The question of suppression of information or submitting false information in the verification form as to the question of having been criminally prosecuted or arrested or as to pendency of a criminal case was subject to divergent views and noticing the conflict of opinion in the various decisions, the Supreme Court in Jainendra Singh vs. State of U.P. through Principal Secretary, Home & Ors.8 pointed out certain cardinal principles, before granting relief to the aggrieved party in such matters, and referred the issues for consideration to a larger bench. The observations made in the judgment are as follows :-
"29. As noted by us, all the above decisions were rendered by a Division Bench of this Court consisting of two-Judges and having bestowed our serious consideration to the issue, we consider that while dealing with such an issue, the Court will have to bear in mind the various cardinal principles before granting any relief to the aggrieved party, namely:
29.1. Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer.
29.2. Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if finds it not desirable to appoint a person to a disciplined force can it be said to be unwarranted.
29.3. When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry.
29.4. A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services.
29.5. The purpose of calling for information regarding involvement in any criminal case or detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have a clear bearing on the character and antecedents of the candidate in relation to his continuity in service.
29.6. The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service.
29.7. The standard expected of a person intended to serve in uniformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted.
29.8. An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, conviction or detention, even if ultimately he was acquitted of the said case, inasmuch as such a situation would make a person undesirable or unsuitable for the post.
29.9. An employee in the uniformed service presupposes a higher level of integrity as such a person is expected to uphold the law and on the contrary such a service born in deceit and subterfuge cannot be tolerated.
29.10. The authorities entrusted with the responsibility of appointing Constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of Constable."
39. Upon reference, the matter was placed before three judge bench of the Supreme Court in Avatar Singh Vs. Union of India and others9, and upon taking notice of the various decisions on the issue the Hon'ble Bench summarized its conclusion and stated as follows :-
"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."
40. In the facts of the case at hand, the petitioner- respondent has admitted that the details of the pending criminal case were not disclosed by him in the declaration made in the verification form. It is also not the case of the petitioner that he was not aware of the pendency of the criminal case. The factum of deliberate suppression is highlighted from the stand taken by the petiitoner before in the departmental revision wherein it was stated that he did not mention pending criminal case in character verification form due to inadvertence. This is further fortified from the pleading in the writ petition wherein the fact with regard to lodging of an F.I.R. and the registration of criminal case and also enlargement on bail have been admitted. The averments in the rejoinder affidavit filed before the writ court further reinforce the admission with regard to suppression of the material fact inasmuch as the petitioner has sought to contend that at the time of filling up of the attestation form in the month of September, 1997, he had not disclosed pendency of the criminal case for the reason that he was under an impression that he would be acquitted in the criminal charges. It is in the above backdrop that the decision taken by the appellant-respondents that the petitioner had suppressed material information having a bearing on his character and antecedents, cannot be faulted with.
41. In terms of the principles laid down in the case of Avatar Singh (supra), referred to above, information given to the employer by a candidate as to the 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. There is thus a clear obligation cast upon a prospective candidate to make a candid and truthful disclosure in respect of the information sought in the verification form. Non-disclosure or concealment of the material facts would have a direct link to the suitability of the person for being appointed in service.
42. Having regard to the aforementioned facts and circumstances, we are unable to persuade ourselves to agree with the reasoning given and the order passed by the learned Single Judge while allowing the writ petition.
43. The judgment dated 21.10.2019 passed by the writ Court having been founded on a wrong premise that there was no requirement in the verification form with regard to disclosure of information regarding pendency of any case, the same cannot be legally sustained.
44. The judgment and order dated 21.10.2019 passed in Writ-A No. 37611 of 2002 (Rajiv Kumar Singh Vs. Director General/R.P.F. and others) is, therefore, liable to be set aside and is accordingly set aside.
45. The special appeal is accordingly allowed.
46. The writ petition stands dismissed.
Order Date :- 26.02.2020 Pratima (Biswanath Somadder,J.) (Dr.Y.K.Srivastava,J.)