Dharmendra Chaubey vs State Of U.P. And 2 Others
2021 Latest Caselaw 8003 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 6
 

 
Case :- WRIT - A No. - 6690 of 2021
 

 
Petitioner :- Dharmendra Chaubey
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Shailesh Verma
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Pankaj Bhatia,J.

Present writ petition has been filed alleging that the father of the petitioner late Nand Lal Chaubey was working as Home Guard passed away on 17.12.2017 in harness. The petitioner being the dependent of late Nand Lal Chaubey applied for compassionate appointment before the Respondent No. 3 after complying the requisite formalities in terms of the order dated 27.9.2012. It is stated that the petitioner completed all the formalities as were required and in fact a letter was issued to the petitioner on 18.3.2021 informing the petitioner that although the petitioner has been found eligible for said post, however, upon police verification, the Police Station Ghorawal, District Sonbhadra has informed that against the petitioner a case has been instituted being Case Crime No. 160 of 2018, under Sections 325, 323, 504 and 427 IPC in which chargesheet has been filed on 31.10.20218. Thus, the case of the petitioner would be considered only after the acquittal of the petitioner from the said case.

The contention of the counsel for the petitioner is that the denial of appointment to the petitioner by means of the letter dated 18.3.2021 is bad in law for two reasons; firstly, that an FIR reading of the case discloses offence of trivial nature and was an outcome of the family dispute in which civil litigation is also pending; secondly, he argues that seeing the allegations levelled against the petitioner, the case of the petitioner ought to have been considered in the light of the judgment of the Supreme Court in the case of Avatar Singh Vs. Union of India and others, (2016) 8 SCC 471. Thus, on these two grounds, he argues that a direction be issued for appointment of the petitioner and further a direction be issued for permitting the petitioner to join the services.

I have perused the order dated 18.3.2021, which purports to deny the benefit of the appointment only on the ground of pendency of a criminal case being Case Crime No. 160 of 2018. The approach of the Respondent No. 3 is clearly against the spirit of the mandate of the Supreme Court in the case Avatar Singh (supra) which provide that while considering the claim, the authority concerned should see as to what would be the effect of the nature of offence on the services to be performed by the person. Necessary paragraphs, in this regard, as laid down in the case of Avtar Singh (supra) are being reproduced hereinabove:

"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."

On a plain reading of the order dated 18.3.2021, it is clear that the claim of the petitioner has not been considered in the light of the judgment in the case of Avtar Singh (supra), as such, without keeping the petition pending, the order dated 18.3.2021 is set aside insofar as it denies the petitioner from joining in terms of the appointment issued to him. The matter is remanded before the Respondent No. 3 to consider the case of the petitioner afresh in the light of the mandate of Supreme Court in the case of Avatar Singh (supra).

The said exercise shall be completed by the Respondent No. 3 with all expedition preferably within a period of two months from the date of filing of a copy of this order before the Respondent No. 3.

The writ petition stands disposed off in terms of the same.

Copy of the order downloaded from the official website of this Court shall be treated as certified copy of the order.

Order Date :- 15.7.2021

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