Anil Kumar vs Union Of India And 4 Others
2022 Latest Caselaw 3864 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 33
 
Delay Condonation Application
 
in
 
Case :- CIVIL MISC REVIEW APPLICATION No. - 40 of 2022
 
in
 
Case:- WRIT - A No. - 38386 of 2017 
 
Applicant :- Anil Kumar
 
Opposite Party :- Union Of India And 4 Others
 
Counsel for Applicant :- Tejasvi Misra
 
Counsel for Opposite Party :- Shruti Malviya
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

1. Heard Mr. Tejasvi Misra, learned counsel for the applicant-petitioner and Ms. Shruti Malviya, learned counsel for the opposite parties.

2. This review application has been filed by the applicant-petitioner against the judgment and order dated 21.01.2019 passed by Hon'ble Mr. Justice Yashwant Verma in WRIT - A No. - 38386 of 2017 (Anil Kumar vs. Union of India and 4 Others) alongwith an application for condoning the delay in filing of the review application. The review application has been placed before the regular Bench, dealing with the matter after the transfer of Hon'ble Judge (Hon'ble Mr. Justice Yashwant Verma) to another High Court as per the order of Hon'ble Acting Chief Justice dated 13.11.2018, therefore, the matter is being heard by this Bench, which is the regular Bench having jurisdiction to hear this matter.

3. The registry has reported the review application to be beyond time by 1037 days on the date of its presentation, i.e. 20.02.2019. The cause shown in the delay condonation application supported with affidavit is sufficient.

4. Application allowed. Delay condoned.

5. Brief facts of the case are that the writ petition bearing Writ-A No. 38382 of 2017 (Dharmendra Kumar Vs. the Union Of India And Others) was filed with a prayer to quash the impugned orders dated 29.07.2015 and 11.05.2017 passed by respondent no.4 and a further prayer was made to direct the respondent authorities to reinstate the service of petitioner and pay salary alongwith other benefits also. It is the case of the petitioner that the petitioner applied for the post of Constable in RPF pursuant to the advertisement No.1 of 2011 dated 23.02.2011 issued by respondent no.5, i.e. the Chief Secretary Commissioner, RPF, Northestern Railways (NER), Gorakhpur. The selection process for Constable GD Posts, against the aforesaid advertisement, consisted of written examination, physical examinations and thereafter, viva and document verification followed by medical examinations. The petitioner being eligible filled up the application form and appeared in the written examination as held pursuant to the aforesaid advertisement. The petitioner qualified the written examination and was called for physical efficiency test, which was held on 09.03.2014 at District-Gorakhpur. Thereafter, the petitioner was called for document verification and medical examination on 05.05.2014 as he had qualified in the written examination as well as physical eligibility test. Thereafter, as the petitioner qualified all the examinations as required, his role number was mentioned in the select list of finally selected candidate. In paragraph no.12 of the attestation form, he was required to fill up certain details. The petitioner filled up the attestation form on 12.05.2014 but he did not disclose about the criminal case, which was lodged against him alongwith three other persons being Case Crime No.4 of 2008, under Sections 323, 325, 504, 506 IPC, at P.S.-Sujanganj, District-Jaunpur. As the petitioner was residing at District-Allahabad for pursuing his studies as well as appearing in competitive exams, he had no knowledge of the aforesaid criminal case and even otherwise, the Investigating Officer has told his father that investigation of the aforesaid case has concluded and petitioner's name has been dropped.

6. The petitioner received allotment letter from the authorities concerned in the month of October, 2014, by which the petitioner was allotted the post of Constable in RPSF and was sent for basic training at RPF training Centre in CISF Training Centre, Bhillai Utai Durg, Chhatisgarh.

7. The petitioner has joined his training on 01.11.2014 and while he was under training, he received letter dated 29.07.2015 and 11.05.2017 issued by respondent no.4, in which it was stated that during the verification, it was found that one criminal case being Case Crime No. 04 of 2008, U/s 323, 325, 504, 506 IPC, at P.S. Sujanpur, District-Jaunpur was lodged against the petitioner, disclosure of which was not done in the attestation form filled by the petitioner. The petitioner was discharged with immediate effect by order dated 29.07.2015 without taking into consideration the fact that the petitioner was not aware of pendency of any criminal case against him, therefore, he could not disclose about the same while filing the attestation form. Hence, the writ petition no. 52193 of 2015 was filed challenging the aforesaid orders.

6. The aforesaid writ petition was finally allowed by the Co-ordinate Bench of this Court vide order dated 14.12.2016 wherein while quashing the impugned discharge order dated 29.07.2015 liberty was granted to the respondents to pass fresh order in the light of judgment of the Apex Court in the case of Avtar Singh Vs. Union of Indian and others, reported in 2016(8) SCC 471.

7. A certified copy of the aforesaid order was served upon the respondents through post alongwith covering letter. Pursuant to which, the respondent no.4 passed impugned order dated 11.05.2017 rejecting the representation of the petitioner, thus his candidature for appointment in the Government Service as Constable in RPF/RPSF was cancelled with immediate effect.

8. Learned counsel for the petitioner submits that the impugned order dated 29.07.2015 has been passed on the ground that the petitioner has suppressed the fact with respect to pendency of criminal case against him in the attestation form submitted by him, hence he is not fit to be appointed as government servant. Subsequently, the impugned order dated 11.05.2017 has been passed wherein the representation of the petitioner has been rejected on the ground of suppression of factual information in the attestation form rendering him unfit for appointment in the government service.

9. The aforesaid impugned orders have been challenged by the petitioner in the writ petition on the following grounds:-

(i) The petitioner has been discharge from service and his appointment has been cancelled in violation of directions by this Court and the guidelines as stated in para 38 of judgment of Hon'ble Apex Court in the case of Avtar Singh vs. Union of India and Ors. has not been taken into consideration. The Apex Court in paragraph no. 38 of the judgment in Avtar Singh (supra) has held as under:-

"38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize 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 recourse 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."

(ii) The impugned orders have been passed without application of mind and without appropriation of facts and circumstances of the case.

(iii) while rejecting the claim of the petitioner, the respondents have not recorded any finding and given any logical reason for passing the same, hence the entire action of the respondents is illegal and arbitrary.

(iv) The entire exercise has been done without following the proper procedure as provided under law as well as without considering the facts that to the best knowledge of the petitioner's father, the proceeding of the criminal case against the petitioner were dropped.

10. However, in the counter affidavit filed by the respondent-opposite party, it has been stated that the impugned orders have rightly been passed on the ground of suppression of fact with respect to pendency of criminal case, in the attestation form so submitted by the petitioner, therefore, the orders impugned do not suffer any illegality.

11. The aforesaid writ petition was dismissed by order dated 21.01.2019 wherein the following order was passed:-

"Heard learned counsel for the petitioner. None appeared for the respondents.

Learned counsel for the petitioner fairly concedes that this petition would merit dismissal in light of the order passed in companion Writ-A No. 38382 of 2017 (Dharmendra Kumar Vs. The Union Of India And Others).

Accordingly and following the reasons assigned therein, this writ petition is also dismissed."

12. The aforesaid order dated 21.01.2019 passed by learned Single Judge was challenged by means of filing Special Appeal Defective No. 181 of 2021 on the ground that while dismissing the writ petition, though the learned Single Judge had placed reliance on certain principles culled out by the Apex Court in the case of Avtar Singh vs. Union of India and Others, reported in (2016) 8 SCC 471 but the fundamental amongst those principles is enshrined in paragraphs nos. 29 and 30 of the judgment whereunder, if there had been any kind of suppression, the employer has discretion to terminate the service or condone the omission/suppression of an employee dependent on the facts of the case, has not been taken into consideration. While challenging the order passed in the writ petition, learned counsel for the applicant-petitioner submits that learned Single Judge has not considered the fact that the railway authorities have kept in mind the fundamental principles as laid down in the judgment of Avtar Singh (supra), while deciding the case of Mukul Kumar and Sunil Kumar. Though the case of the applicant-petitioner falls at par that of Mukul Kumar and Sunil Kumar, but while considering the discharge of the petitioner from service, a broad minded approach has not been taken as done in the case of Mukul Kumar and Sunil Kumar. The following order was passed in the aforesaid special appeal:-

"Learned counsel for the appellant has submitted that although the learned Single Judge while dismissing the writ petition has placed reliance on certain principles culled out by the Apex Court in Avtar Singh vs. Union of India and others, (2016) 8 SCC 471 but the fundamental amongst those principles is enshrined in paragraphs 29 and 30 of the judgment in Avtar Singh (supra) whereunder, if there had been any kind of suppression, the employer has discretion to terminate the service or condone the omission/suppression of an employee dependent on the facts of the case. By placing reliance on orders passed by Railway Authorities in similar matters of Mukul Kumar and Sunil Kumar, learned counsel for the appellant has submitted that the case of the appellant falls at par with those of Mukul Kumar and Sunil Kumar and therefore, while considering discharge of the petitioner-appellant from service, a broad minded approach ought to have been taken by the authority. He has also pointed out that judgment and order of acquittal of appellant reveals that there was no fault of the petitioner-appellant and the incident had occurred in some other manner, as was narrated by the prosecution witnesses during the course of trial.

The matter requires consideration.

Ms. Shruti Malviya, Advocate has accepted notice on behalf of respondents. She prays for and is allowed four weeks' time to file counter affidavit. The petitioner-appellant will have one week thereafter to file rejoinder affidavit, if any.

List this matter on 7th April, 2021."

13. Subsequently, on 04.08.2021, the aforesaid special appeal was dismissed as withdrawn as the Court opined that the applicant-petitioner should have filed review application against the judgment and order dated 21.01.2019 as once the learned counsel for the petitioner has conceded for dismissal of the writ petition, he has no right to challenge the writ court's order in special appeal, therefore, the present review application has been filed with the following grounds:-

(i) that the petitioner had never agreed to get his case dismissed on the ground of similarity with the case of Dharmendra Kumar (supra), rather the case of the petitioner stands on different footing.

(ii) that the petitioner had contested his case on its own merit and had never authorized the counsel to claim similarity with any other case. He further submits that at the time of submission of attestation form on 12.05.2014, the petitioner has not disclosed about the criminal case as the Investigating Officer had informed his father that the name of the petitioner has been dropped during the course of investigation.

(iii) similarly situated candidates has been reinstated his service and the petitioner has been discriminated from such candidates. In the special appeal, the Division Bench of this Court was pleased to call for an explanation from the respondents, as to why and how the case of the applicant-petitioner has been distinguished from various similarly placed candidates. Therefore, the present review application may be allowed on the aforesaid grounds.

14. Ms. Shruti Malviya, learned counsel for the respondent submits that there is no illegality in the order dated 21.01.2019 passed in writ petition as the details of pending criminal case was not disclosed by the petitioner in the attestation form. There was also no assertion that the petitioner had no knowledge of this case or that his statement was not recorded during the course of investigation. The issue of deliberate suppression was further highlighted from a reading of the contents of the writ petition in which it has been averred that the father of the petitioner was assured by the Investigating Officer that his name would be dropped from the investigation. The impugned order records that the criminal case is pending trial. This recital in the order is not disputed by the petitioner.

15. She further submits that ground with respect to discrimination from other similar situated persons, has been taken for the first time in the special appeal filed by the applicant-petitioner, which has been dismissed vide order 04.08.2021 and this ground has also been taken for the first time in the review application filed by the applicant-petitioner, therefore, the same has not been considered by this Court. In support of her contention, she relied upon the judgment of the Apex Court in the case of Nandkishore Lalbhai Mehta vs New Era Fabrics P.Ltd.& Ors reported in (2015) 9 SCC 755, wherein it has been held that in absence of specific pleading and document, relief otherwise claimed will not be considered by the Court. Relevant paragraphs are as under:-

"20. ...........unless and until there is an amendment of the pleadings, no evidence with regard to the facts not pleaded can be looked into,.....

...............

(i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject-matter of an issue, cannot be decided by the court.

(ii) A court cannot make out a case not pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint.

(iii) A factual issue cannot be raised or considered for the first time in a second appeal.

........................

"6. ... It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings; instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal."

17. It is thus clear that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contain the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise. The principles laid down in Bhagwati Prasad and Ram Sarup Gupta referred to above and several other decisions of this Court following the same cannot be construed as diluting the well-settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo motu"."

16. She has also relied upon the judgment of this Court in the case of Rama Kant Prasad and Others vs. Union of India and others, decided on 07.01.2013 passed in Special Appeal No. 2435 of 2011, wherein the Court has held that no indulgence is required, in case of submission of false affidavit by the candidate.

17. She has further relied upon the judgment of this Court passed in Special Appeal No.153 of 2019 (Tej Bahadur Yadav vs. Union of India and 4 Ors.) along with bunch of appeals so filed, which have been dismissed vide order dated 22.09.2021 as the applicants therein have failed to bring out a case within the four corners of the conclusions recorded in the case of Avtar Singh (supra), then the issue of triviality or nature of the offence and subsequent acquittal loses its significance and the most glaring question staring in the eyes of the appellants is the question of trust.

18. She, therefore, further submits that the impugned judgment dated 21.01.2019 passed by learned Single Judge does not suffer from any illegality, therefore, the review application is liable to the dismissed.

19. I have considered the submissions made by learned counsel for the parties as well as perused the material brought on record.

20. Before considering the merits of the case, it would be proper to consider the scope of review application in facts and circumstances of the case. The basic principles in which review application can be entertained and cannot be entertained have been eloquently laid down by Hon'ble the Apex Court in the case of Kamlesh Verma vs. Mayawati reported in (2013) 8 SCC 320. As has been enumerated in the aforesaid judgment, the review application will be maintainable on the following grounds:-

"20.1. When the review will be maintainable:-

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason."

The third ground with respect to any other sufficient reason has been interpreted as a reason sufficient on grounds at least analogous to those specified in the rule.

21. The review application will not be maintainable on the following grounds:-

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.

22. The Hon'ble Apex Court in the case of Perry Kansagra v. Smriti Madan Kansagra reported in (2019) 20 SCC 753, on the scope and power of review, has reiterated the same principles.

23. The law on the subject-exercise of power of review, as propounded by the Apex Court and various other High Courts may be summarized as hereinunder:-

(i) Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.

(ii) Power of review may be exercised when some mistake or error apparent on the fact of record is found. But error on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.

(iii) Power of review may not be exercised on the ground that the decision was erroneous on merits.

(iv) Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a court or even an advocate.

(v) An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit.' In our opinion, the principles of law enumerated by it, in the facts of this case, have wrongly been applied.

24. The settled position of law regarding scope and power of review has been laid down by the Division Bench of this Court in Special Appeal No.147 of 2016 [State of U.P. Thru. Secy. Revenue Civil Sectt. Lko. and Ors. vs. Shyam Lal 425(S.S)2011] decided on 05.08.2021, wherein while deciding the review petition in para 17, it has been held as under:-

"(17) It has thus been settled in law that;

(i) the power of review may be necessitated by way of invoking the doctrine ''actus curiae neminem gravabit' which means that no act of the court in the course of whole of the proceedings does an injury to the suitors in the court. It has been held in Food Corporation of India and Another vs. M/s Seil Ltd. & Ors. [(2008) 3 SCC 440] that a writ court exercises its power of review under Article 226 of the Constitution of India itself and while exercising the jurisdiction it not only acts as a court of law but also as a court of equity. A clear error or omission on the part of the court to consider a justifiable claim would be subject to review, amongst others, on the ''actus curiae neminem gravabit'.

(ii) The mistake or error must be apparent on the face of record i.e. that it must strike one on more looking at the record and would not require any long drawn process of reasoning. It should not be an error which has to be fished out and searched. Such an error must also be material which undermines the soundness of the judgment or results in miscarriage of justice. An error which may be apparent but is of inconsequential import, that would not furnish a ground for review.

(iii) An application for review would also be maintainable for ''any other sufficient reason', which expression has been interpreted to mean a reason sufficient on grounds at least analogous to those specified in Order 47 Rule 1 C.P.C., which are wide enough to include a misconception of fact or law by a court or even an Advocate and what other grounds would constitute sufficient reason depends on the facts and circumstances of each case.

(iv) There are limitations on the exercise of review jurisdiction. Review proceedings are not by way of appeal. It cannot be treated like an appeal in disguise. A rehearing of the matter is not permissible in law. If there are two views possible, the power of review cannot be exercised to substitute the view already taken in the judgment under review. It is not for an erroneous decision to be ''reheard and corrected' in review jurisdiction."

25. In the present facts and circumstances of the case, wherein keeping in mind the above principles, this Court proceeds to consider as to whether the grounds on which the present review application has been filed exist, and if yes, whether on such grounds review would be permissible.

26. A perusal of the impugned judgment dated 21.01.2019 goes to show that learned counsel for the petitioner fairly conceded that the petition may be dismissed in the light of order passed in connected Writ-A No.38282 of 2017 (Dharmendra Kumar vs. Union of India and 5 Ors.), whereas in the review petition the learned counsel for the applicant-petitioner has submitted that he had never agreed to get his case dismissed on the ground of similarity with the case of Dharmendra Kumar (supra) as the case of the applicant-petitioner stands of different footings.

27. In the case of Dharmendra Kumar (supra), though the ground for rejecting the candidature of the petitioner therein was the same, i.e. suppression of material facts regarding pendency of a criminal case in which he was named as an accused and trial was pending. But the petitioner therein while filing the aforesaid writ petition bearing Writ-A No.38282 of 2017 had not asserted that the petitioner had no knowledge of this case or that his statements were not recorded during the course of investigation. In his case, the issue of deliberate suppression was highlighted from a reading of the contents of paragraph no.17 of the writ petition, in which it was averred that the father of the petitioner therein was assured by the Investigating Officer that his name would be dropped from the investigation. The impugned order in the aforesaid case also recorded that the criminal case against the petitioner therein was pending. Dharmendra Kumar (supra), the petitioner therein did not dispute about the aforesaid fact in the writ petition also.

28. In the present case, in para 19 of the writ petition, the petitioner has clearly stated that he had no knowledge about his criminal case and that the Investigating Officer told his father that the name of the applicant-petitioner has been deleted in the charge sheet after concluding the investigation and assurance was also given by him that the name of the petitioner has to be deleted in the chargesheet. The aforesaid criminal case was lodged by real uncle of the applicant-petitioner and after investigation, charge sheet was submitted on 08.02.2008 against four persons, namely, Pradeep Kumar, Virendra Kumar, Santosh Kumar and Mahendra Kumar, therefore, in the month of June, 2014, on the assurance has been given by I.O. to the petitioner's father that the petitioner had not been charge sheeted, he did not disclose about the criminal case.

29. Therefore, in the special circumstances, wherein the charge sheet was already been submitted in the year 2008 against four named accused persons excluding the petitioner, the petitioner did not deliberately suppress the facts about pendency of criminal case while submitting the attestation form in the year 2014 as he had no knowledge about any chargesheet being filed against him later or pendency of criminal trial, hence the case of the petitioner stands on a different footings than that of Dharmendra Kumar (supra).

30. This Court also finds that while dismissing the case of Dharmendra Kumar (supra), the court concerned had discussed the judgment of the Apex Court in Avtar Singh (supra) case and as per the factual position of the aforesaid case, the Court finds that the case of the petitioner therein did not fall within the criteria as enunciated in para 38 of the aforesaid judgment of Avtar Singh (supra), whereas from perusal of the judgment of Dharmendra Kumar (supra) case, it is found that there is no discussion regarding the section in which the FIR was lodged against the petitioner therein hence, learned counsel for the petitioner in the present case is to be believed that in case, had an opportunity of arguing of the case on merits been given to the petitioner, his case would have been on a different footings from that of Dharmendra Kumar (supra) in view of principles enunciated in paras 38.2, 38.4, 38.8, 38.10 and 38.11 of the judgment of Avtar Singh (supra).

31. Neither in the counter affidavit filed by the respondents nor in the impugned order, it has been specified, as to whether the petitioner has been charge sheeted, convicted or acquitted. In such circumstances, if the case of the petitioner is seen on its own merits, intervention by the Court would have been required, instead of dismissing the same in the light of Dharmendra Kumar (supra).

32. So far as the second ground as taken by the applicant-petitioner that the petitioner has been discriminated from similarly situated candidates, this Court finds that plea raised for the first time in review application cannot be entertained.

33. As the case of the petitioner was on different footings from that of Dharmendra Kumar (supra) as discussed above, even if the learned counsel for the petitioner had conceded for dismissal of the case in the light of aforesaid judgment, it was the duty of the learned counsel for the respondents to point out the difference in the two matters. Non-disclosure or suppression of material facts would be covered in the category of "any other sufficient cause", which furnishes a good ground for review and is wide enough to include such a cause.

34. At this stage, it would be apt to refer the judgment in the case of S. Nagraj vs. State of Karnataka reported in (1993) Supp. 4 SCC 595, wherein Hon'ble Apex Court has observed that it is the duty of the Court to rectify, revise and recall its orders as and when it is brought to its notice that certain of its orders were passed on a wrong or mistaken assumption of facts and that implementation of those orders would have serious consequences. Again in the case of M.M. Thomas vs. State of Kerala & Another reported in (2000) 1 SCC 666, the Hon'ble Apex Court has held that the High Court, as a Court of record, has a duty to itself to keep all the records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it, the High Court has not only power, but a duty to correct it.

35. This Court is of the opinion that mere suppression of material/false information in a given case does not mean that employer can arbitrarily discharge/terminate an employee from service. All matters cannot be put in a straight jacket and a degree of flexibility and discretion which vests with the authorities, must be exercised with care and caution taking all facts and circumstances into consideration including the nature and type of lapse. The aforesaid view has been followed by the Apex Court in the case of Pawan Kumar vs. Union of India & Another reported in 2022 0 Supreme (SC) 391. Relevant paragraphs of the judgment in the case of Pawan Kumar (supra), reads as follows:-

"13. What emerges from the exposition as laid down by this Court is that by mere suppression of material/false information regardless of the fact whether there is 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. At the same time, the effect of suppression of material/false information involving in a criminal case, if any, is left for the employer to consider all the relevant facts and circumstances available as to antecedents and keeping in view the objective criteria and the relevant service rules into consideration, while taking appropriate decision regarding continuance/suitability of the employee into service. What being noticed by this Court is that mere suppression of material/false information in a given case does not mean that the employer can arbitrarily discharge/terminate the employee from service.

........

18. The criminal case indeed was of trivial nature and the nature of post and nature of duties to be discharged by the recruit has never been looked into by the competent authority while examining the overall suitability of the incumbent keeping in view Rule 52 of the Rules 1987 to become a member of the force. Taking into consideration the exposition expressed by this Court in Avtar Singh (supra), in our considered view the order of discharge passed by the competent authority dated 24th April, 2015 is not sustainable and in sequel thereto the judgment passed by the Division Bench of High Court of Delhi does not hold good and deserves to be set aside."

(Emphasis supplied)

36. Keeping in mind the aforesaid principles, in the case in hand, when there is no whisper of the fact in the impugned order as well as in the counter affidavit filed by the learned counsel for the respondents as to whether the petitioner has been charge sheeted, convicted or acquitted and the nature and seriousness of the offence, the case of the petitioner stands on a better and different footings from that of Dharmendra Kumar (supra) case, hence for the aforesaid reasons, this Court is of the considered opinion that the impugned judgment dated 21.01.2019 is liable to be reviewed and recalled. The writ petition is to be restored to its original number.

37. Accordingly, this review application is allowed. The judgment dated 21.01.2019 is recalled and, therefore, this Court finds that the orders impugned dated 29.07.2015 and 11.05.2017 passed by respondent no.4 cannot be legally sustained and are hereby quashed. Matter is remitted back to respondent no.4 for decision afresh in light of the law laid down by the Apex Court in the cases of Avtar Singh and Pawan Kumar (Supras). While deciding the matter afresh, respondent no.4 shall pass a reasoned and speaking order, in accordance with law, after affording opportunity of hearing to the petitioner, preferably within a period of three months from the date a certified copy of this order is filed before him, if there is no other legal impediment.

38. The present writ petition, which is restored to its original number, is also allowed subject to the observations made above.

(Manju Rani Chauhan, J.)

Order Date :-24.05.2022

Jitendra/-