Allahabad High Court
Sunil Yadav vs State Of U P And 3 Others on 16 December, 2022
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 34
Case :- WRIT - A No. - 14223 of 2022
Petitioner :- Sunil Yadav
Respondent :- State Of U P And 3 Others
Counsel for Petitioner :- Mujib Ahmad Siddiqui,Ajay Singh,Brahm Prakash Mishra,Vinay Kumar
Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Bhatia,J.
Heard the counsel for the petitioner and the learned Standing Counsel.
The present petition has been filed challenging the order dated 22.08.2022 whereby the petitioner has been non suited to serve with the respondents only on the ground of pendency of criminal case under section 325 IPC, which according to the respondents is an offence of serious nature and thus, it would not be appropriate to permit the petitioner to continue in the services.
The contention of the counsel for the petitioner is that a case crime no.133 of 2016 was lodged against the petitioner and his family members. He argues that subsequently after the investigation section 325 IPC was added to the offences. He argues that general allegations were levelled against the entire family including the petitioner. He further draws my attention to the statement of the victim made in the said criminal trial who has not named the petitioner. He thus, argues that the order impugned is bad inasmuch as the same also does not consider the true intent of the judgment of the Supreme Court in the case of Avtar Singh vs Union of India and others, 2016 (8) SCC 471 followed by Pawan Kumar vs Union of India; (2022) SCC OnLine SC 532 which specifically directs that the effect of the criminal case should be taken into consideration to determine whether the services to be rendered by the petitioner would be appropriate or not in view of nature of allegations levelled against the petitioner.
The petitioner had earlier approached this Court by filing a writ petition no.6984 of 2022, which was decided on 24.05.2022 directing the respondents to take a decision in the light of the law laid down in the case of Avtar Singh vs Union of India and others (supra). The specific guidelines laid down by the Hon'ble Supreme Court are as under :
"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."
From the perusal of the order, it is clear that it was recorded that the offence against the petitioner for which he is under trial is under section 325 IPC, which is a heinous offence and thus it would not be appropriate to induct the petitioner in service. The authority while passing the impugned order has not considered the nature of the allegations levelled against the petitioner and has completely ignored the fact that the entire family was roped in the criminal case. Even otherwise the offence under sections 323 and 324 IPC per se cannot be termed as a heinous only on the ground of allegation levelled, more so in view of the fact that the offence under section 325 IPC is punishable up to seven years.
Considering the fact that the order dated 22.08.2022 does not take into consideration the import of the judgment of the Supreme Court in the case of Avatar Singh (Supra), particularly para 38.4.1, the order impugned cannot be sustained and is set aside. The respondents are directed to pass fresh order in the case of the petitioner taking into consideration the quality of evidence led against the petitioner. The petitioner would be at liberty to produce the statement of the witnesses before the authority concerned along with a copy of this order which shall be taken into consideration while passing the fresh order, as directed above. The fresh order shall be passed with all expedition preferably within a period two months.
The writ petition stands disposed off with the said observations.
Order Date :- 16.12.2022
VNP/-
