Govind Singh vs Cantonment Board, Mathura And ...
2017 Latest Caselaw 4237 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 59
 

 
Case :- WRIT - A No. - 31360 of 2016
 

 
Petitioner :- Govind Singh
 
Respondent :- Cantonment Board, Mathura And Another
 
Counsel for Petitioner :- Hemant Kumar
 
Counsel for Respondent :- Mohd. Isa Khan,Prakash Chandra Tiwari,S.C.
 

 
Hon'ble Yashwant Varma,J.

Heard learned counsel for the petitioner and Sri P.C. Tiwari, learned counsel who has appeared for the contesting respondents.

The petitioner calls in question the order dated 30 May 2016 passed by the Executive Officer of the Cantonment Board upholding their decision to withdraw the appointment made in favour of the petitioner on the ground of suppression of material information.

The facts on which there is no dispute are as under.

The petitioner was appointed as a Safai Karmachari on probation in terms of an order dated 12 October 2007. This appointment was preceded by an application made by the petitioner seeking appointment in the Cantonment Board and also furnishing a declaration that he was not involved in any criminal case.

It appears that after the petitioner had been appointed, a First Information Report came to be lodged on 29 November 2007. This FIR ultimately upon conclusion of investigation resulted in filing of a police report dated 8 April 2008 recommending closure. It is also not disputed that this final report was accepted by the Chief Judicial Magistrate in terms of an order dated 29 June 2014. It becomes relevant to note that the respondents had provided in the appointment letter itself that the appointment offered was subject to a character verification of the petitioner. It appears that pursuant to the said stipulation, an exercise of character verification was undertaken. A communication dated 8 November 2007 is stated to have been issued to the District Magistrate to which a response was submitted by his office on 20 June 2008. It was in response and consequent to the receipt of this report that the respondents came to know of the filing of FIR as also the submission of a final report on 8 April 2008.

The respondents had earlier passed an order on 12 November 2008 terminating his services holding that the petitioner was guilty of suppression of material information. This order was subjected to challenge by the petitioner by way of Writ-A No. 5208 of 2009 which was allowed on 16 December 2015 with the learned Single Judge holding that the respondents had failed to comply with the principles of natural justice and consequently the matter was remanded for a decision afresh. It is pursuant to the said order of the Court that proceedings were redrawn by the respondents and ultimately, the impugned order has come to be passed.

The second respondent has taken the view that the contention of the petitioner that he was not named in the FIR was not liable to the accepted since Dugesh Son of Pooran Singh and Govind Singh son of Pooran Singh were one and the same person. In view thereof he has proceeded to hold that it was the the petitioner himself who was also known as Durgesh. Learned counsel for the petitioner has however not laid much stress on this aspect of the matter and his submissions proceeded based upon the assumption that the respondents were correct in arriving at this conclusion. In view thereof this Court also does not deem it necessary to dwell upon this issue.

The second respondent proceeded to note the contents of the appointment letter and the various stipulations contained therein to hold that the petitioner was obliged to disclose to the respondents the filing of the FIR and the proceedings taken by the police thereafter. He has also rested his decision on paragraph 2 of the "Attestation Form" to hold that even a subsequent event was liable to be brought to the notice of the respondents. Upon a cumulative consideration of the aforesaid findings, the second respondent has proceeded to affirm the decision taken earlier to terminate the services of the petitioner with effect from 30 November 2008.

It is not disputed that the Attestation Form was filled and submitted by the petitioner prior to the lodging of the FIR on 29 November 2007. In fact prior to the registration of the FIR, the petitioner had already been appointed on probation in terms of the order dated 12 October 2007. Since the FIR itself came to be registered after the petitioner had made the requisite declarations and filled the Attestation Form, he could not possibly be held to be guilty of suppressing any facts or a deliberate non disclosure of material information. In view thereof, the declaration as made by the petitioner prior to entering into service of the respondents cannot by any stretch of imagination be said to be false, incorrect or misleading.

That then leaves the Court to deal with the issue as to whether there was an obligation imposed upon the petitioner to apprise the respondents of any subsequent event of this character that may have occurred and if so what would be the effect or impact of a failure on his part to do so.

Learned counsel appearing for the respondent Cantonment Board referred to an undertaking said to have been submitted by the petitioner on 1 November 2007 wherein according to him the petitioner had clearly accepted that in case any adverse material comes to light subsequent to and during the course of character verification, the respondents would be entitled to terminate his services without notice. This Court must however highlight that even this undertaking was made prior to the registration of the FIR. Whether the appointment made in favour of the petitioner could be withdrawn on the basis of this undertaking is set apart for consideration a little later.

Learned counsel for the respondents then laid stress upon paragraph 2 of the "Attestation Form" which provided that if the attestator is detained, convicted or debarred subsequent to the submission of the forms for employment, the details should be communicated immediately to the authority before whom the attestation form had been submitted. A bare perusal of paragraph 2 which stands extracted in the impugned order clearly establishes that it would come into play only in a case or a situation where an attestator had been "detained", "convicted" or "debarred". Undisputedly neither of these three contingencies stood attracted in the facts of the present case. This stipulation evidently would, therefore, clearly have no application.

That then leaves the Court to finally deal with the submission based upon the condition carried in the undertaking dated 1 November 2007 which was alluded to before. In the considered view of this Court, the stipulation in the undertaking at best conferred a power upon the respondents to terminate the services of the petitioner in case any adverse material or information came to light. The issue that faces this Court is whether the material or information which came to be light in this particular case could really be said to be adverse so as to warrant a termination of services "a fortiori". As noted herein above, although a FIR was lodged the same ultimately ended with a closure report being submitted by the police. This closure report was accepted by the concerned court. The effect of this clearly would be that the allegation or the charge of the petitioner having committed a crime stood effaced for all purposes. In such a situation to treat the circumstance of a FIR having been lodged to be solely determinative of the issue or to view it as a "fait accompli" would not only be illegal but wholly inequitable and unfair.

More fundamentally the Court must bear in mind the principles enunciated by the Supreme Court in Avtar Singh Vs. Union of India & others1 wherein after noticing all earlier precedents on the subject, three learned Judges of the Supreme Court formulated the principles which must guide an employer in such situations as follows:-

"30. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarise our conclusion thus:

(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.

(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.

(3) The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.

(4) In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted : -

(a) 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.

(b) Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.

(c) 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.

(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.

(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.

(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.

(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.

(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.

(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.

(11) Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him." (emphasis supplied)

As would be evident from a consideration of the principles enunciated by the Supreme Court, it would be wholly incorrect to hold that every alleged misstatement or suppression of material fact must necessarily result in termination. The decision has dealt with various possibilities and situations where such a course of action would not be justified. It also underlines the necessity of an application of mind by the employer to the allegations which may have been made against the employee, his role in the case concerned and whether conviction or an ultimate closure, as the case may be, would render him unsuitable to be continued in employment. There has been no application of mind by the respondents on these aspects. At least the impugned order does not evidence the respondents having taken into consideration these issues. The petitioner was employed on the post of Safai Karmachari. He was in that sense not holding a position of authority or trust. The FIR ultimately ended in a closure report being submitted by the police authorities and which was also accepted by the Chief Judicial Magistrate. These and other facts adverted to above should have necessarily be taken into consideration by the authorities before terminating the services of the petitioner. There has, therefore, clearly been a failure on the part of the respondents to take into consideration facts which were relevant and germane to the decision making process thus rendering the impugned order unsustainable.

Accordingly and for the reasons noted above, this petition is allowed. The impugned order dated 30 May 2016 is hereby quashed. It shall be open to the respondents to apply their mind afresh and consider, whether in light of the fact that the charge of which the petitioner stood duly absolved together with the finding entered hereinbefore that there was no concealment, would warrant any further action being taken against the petitioner. This decision may be taken by the respondents with expedition and preferably within four weeks of submission of a certified copy of this order. Since the order of termination has been set aside and liberty accorded to the respondents to decide afresh, the entitlement of the petitioner to reinstatement, continuity in service and consequential benefits shall be subject to the fresh decision that the respondents may take in light of the observations made herein above.

Order Date :- 12.9.2017                             (Yashwant Varma, J.)
 
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