State Of U.P. Thru. Prin.Secy. ... vs Pramod Kumar
2023 Latest Caselaw 6737 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
Judgment Reserved On: 09.02.2023
 
Judgment Delivered On: 02.03.2023
 
Court No. - 1
 

 
Case :- SPECIAL APPEAL No. - 44 of 2019
 

 
Appellant :- State Of U.P. Thru. Prin.Secy. Home Deptt. And Ors.
 
Respondent :- Pramod Kumar
 
Counsel for Appellant :- Standing Counsel
 
Counsel for Respondent :- Sheshnath Bhardwaj
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Subhash Vidyarthi,J.

(Per: Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Mohit Jauhari, the learned Standing Counsel for the Appellants and Sri Shesh Nath Bhardwaj, the learned Counsel for sole respondent.

2. The instant Intra Court Appeal has been filed by the appellant State of U. P. under Chapter VIII Rule 5 of the Allahabad High Court Rules against the judgment and order dated 27.03.2018 passed by an Hon'ble Single Judge of this Court, allowing Writ Petition No. 3878 (S/S) of 2017.

3. Briefly stated, facts of the case are that the appellants had made recruitments to the posts of constables in the Provincial Armed Constabulary (P.A.C.) in the year 1998. The respondent claims that he was appointed and was sent for training at the Recruitment Training Centre, Second Battalion, U.P. P.A.C. Sitapur, although no appointment letter was issued to him. At the time of recruitment, the respondent was required to submit an affidavit disclosing his antecedents and the respondent filed an affidavit dated 01.09.1998 categorically stating that as per his knowledge, neither any criminal case had been registered against him, nor had he been challaned by the police in any criminal case nor was any investigation pending against him. He had further stated in the affidavit that in case any fact mentioned in the application was found to be false or any fact was found to have been concealed, he should be removed from the service and be punished for the same. It was further stated the affidavit that in case any averment made in the affidavit was found to be false, his claim for recruitment may be rejected and in case any averment was found to be false even after his recruitment, he may be removed from the service and may be punished in accordance with the law and he would accept the same.

4. Upon verification of the averments made in the application and the affidavit, it was found that the respondent was an accused in Session Trial No. 428 of 1996 in the Court of Second Additional Session Judge Lucknow arising out of Case Crime No. 36 of 1995 under Sections 323, 504, 506 I.P.C. and 3 (1) (x) of the Scheduled Castes And Scheduled Tribes (Prevention Of Atrocities) Act, Police Station Nagram, Lucknow, which was pending on the date when the respondent had submitted the affidavit. Soon thereafter, on 03.11 1998, the aforesaid session trial was decided and the respondent was acquitted of the charges.

5. On 19.03.1999, the Commandant sent a letter to the respondent stating that the respondent had concealed the fact that a prosecution was pending against him. The letter further stated that by means of a letter dated 21.12.1998, the Inspector General of Police, P.A.C. had directed that selection of such candidates, as had concealed facts in the affidavit, be cancelled and cases be registered against them. Accordingly, the petitioner's selection on the post of recruit constable in PAC was cancelled.

6. The respondent challenged the order dated 19.03.1999 terminating his service by filing Writ Petition No.664 (S/S) of 1999 which was dismissed by means of a judgment and order dated 16.02.2004. The respondent filed Review Application No.74 of 2004, which too was dismissed by means of an order dated 08.02.2012. The respondent then filed Special Appeal No.135 of 2012, which was allowed by means of a judgment and order dated 28.10.2014 and the termination order dated 19.03.1999 was quashed and a direction was issued for reinstatement of the respondent in service.

7. The State challenged the aforesaid judgment and order dated 28.08.2014 by filing S.L.P. (Civil) No. 9835 - 9836 of 2015 and the S.L.P. was decided by means of an order dated 22.11.2016 with the observation that the case of the respondent be considered in light of the judgment passed in the case of Avtar Singh versus Union of India and others, (2016) 8 SCC 471.

8. In Avtar Singh v. Union of India, (2016) 8 SCC 471, the Hon'ble Supreme Court had held that: -

"30. The employer is given "discretion" to terminate or otherwise to condone the omission. Even otherwise, once employer has the power to take a decision when at the time of filling verification form declarant has already been convicted/acquitted, in such a case, it becomes obvious that all the facts and attending circumstances, including impact of suppression or false information are taken into consideration while adjudging suitability of an incumbent for services in question. In case the employer comes to the conclusion that suppression is immaterial and even if facts would have been disclosed it would not have adversely affected fitness of an incumbent, for reasons to be recorded, it has power to condone the lapse. However, while doing so employer has to act prudently on due consideration of nature of post and duties to be rendered. For higher officials/higher posts, standard has to be very high and even slightest false information or suppression may by itself render a person unsuitable for the post. However, same standard cannot be applied to each and every post. In concluded criminal cases, it has to be seen what has been suppressed is material fact and would have rendered an incumbent unfit for appointment. An employer would be justified in not appointing or if appointed, to terminate services of such incumbent on due consideration of various aspects. Even if disclosure has been made truthfully, the employer has the right to consider fitness and while doing so effect of conviction and background facts of case, nature of offence, etc. have to be considered. Even if acquittal has been made, employer may consider nature of offence, whether acquittal is honourable or giving benefit of doubt on technical reasons and decline to appoint a person who is unfit or of dubious character. In case employer comes to conclusion that conviction or ground of acquittal in criminal case would not affect the fitness for employment, incumbent may be appointed or continued in service.

* * *

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."

(Emphasis supplied by the Court)

9. The Commandant 2nd Battalion PAC passed an order dated 28.12.2016 in purported compliance of the aforesaid order passed by the Hon'ble Supreme Court, stating that the respondent had made an attempt to enter into the Government's service by submitting a false affidavit and such a person is not entitled to remain in the police force. Although the aforesaid order has been passed in purported compliance of the judgment and order dated 22.11.2016 passed by the Hon'ble Supreme Court in S.L.P. (Civil) 9835 - 9836/2015, directing that the case of the respondent be decided in light of the judgment passed in the case of Avtar Singh (supra), the authority has not even referred to the law laid down in Avtar Singh and the order has been passed ignoring the directions of the Hon'ble Supreme Court in the order dated 22.11.2016 and the law laid down in Avtar Singh (Supra).

10. The criminal case that was pending against the respondent on the date he had submitted the affidavit, had been initiated on the basis of an incident alleged to have taken place on 04.12.1993, when the respondent was aged about 18 years. It was alleged that the respondent had committed offences under Sections 354, 323, 504, 506 I.P.C. and there was no allegation of commission of any heinous offence by the respondent. Moreover, the respondent was acquitted of all the charges by the Trial Court on 30.10.1998. While passing the order dated 28.12.2016 the Commandant did not apply his mind to these facts which is apparent from the fact that although he has mentioned the respondent's involvement in Case Crime No.229 of 1993, under Section 354, 395, 397, 504 and 506 I.P.C. Police Station Kacchauna, District Hardoi in one paragraph, in the following paragraph he has mentioned the respondent's involvement in Case Crime No.36 of 1995, under Section 323, 504, 506 I.P.C. and Sections 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, which relates to the respondent in the connected Special Appeal No.43 of 2019. It indicates that the order dated 28.12.2016 has been passed in a mechanical manner after getting the text pasted from the order passed in the matter of respondent-Santosh Kumar Verma in Special Appeal No.43 of 2019. Had the Commandant examined the facts in light of the law laid down in Avtar Singh (Supra) as directed by the Hon'ble Supreme Court, the outcome would certainly be different.

11. The Hon'ble Single Judge has allowed the Writ Petition that was filed by the respondent against the order dated 28.12.2016 holding that the charge against the respondent was not so serious and he had been acquitted of the charge within one month from the date of submission of the affidavit, even before his candidature was considered by the authority and we are in agreement with the view taken by the Hon'ble Single Judge.

12. Sri. Mohit Jauhari, the learned Standing Counsel has relied upon the law laid down by the Hon'ble Supreme Court in Rajasthan Rajya Vidyut Prasaran Nigam Ltd. v. Anil Kanwariya, (2021) 10 SCC 136, wherein the employee had already been convicted when he had applied for being appointed and he had concealed the fact of his conviction. In the present case, the criminal case was pending against the respondent and soon after submitting the affidavit and before consideration of his case, he had already been acquitted. Therefore, the facts of the present case are different from that in Anil Kanwariya case.

13. Sri. Jauhari next relied on Satish Chandra Yadav versus Union of India, 2022 SCC OnLine SC 1300, wherein the Hon'ble Supreme Court has been pleased to summaries the broad principles applicable to the cases involving the issue, as follows: -

"90. In such circumstances, we undertook some exercise to shortlist the broad principles of law which should be made applicable to the litigations of the present nature. The principles are as follows:

a) Each case should be scrutinised thoroughly by the public employer concerned, through its designated officials-more so, in the case of recruitment for the police force, who are under a duty to maintain order, and tackle lawlessness, since their ability to inspire public confidence is a bulwark to society's security. [See Raj Kumar (supra)]

b) Even in a case where the employee has made declaration truthfully and correctly of a concluded criminal case, the employer still has the right to consider the antecedents, and cannot be compelled to appoint the candidate. The acquittal in a criminal case would not automatically entitle a candidate for appointment to the post. It would be still open to the employer to consider the antecedents and examine whether the candidate concerned is suitable and fit for appointment to the post.

c) The suppression of material information and making a false statement in the verification Form relating to arrest, prosecution, conviction etc., has a clear bearing on the character, conduct and antecedents of the employee. If it is found that the employee had suppressed or given false information in regard to the matters having a bearing on his fitness or suitability to the post, he can be terminated from service.

d) The generalisations about the youth, career prospects and age of the candidates leading to condonation of the offenders' conduct, should not enter the judicial verdict and should be avoided.

e) The Court should inquire whether the Authority concerned whose action is being challenged acted mala fide.

f) Is there any element of bias in the decision of the Authority?

g) Whether the procedure of inquiry adopted by the Authority concerned was fair and reasonable?

14. In reply, Sri. Shesh Nath Bhardwaj, the learned Counsel for sole respondent has submitted that all the facts and circumstances of the case are to be examined while deciding a case and one very relevant fact stated by the respondent in his representation was that selection of 11 other persons was also cancelled for the same reason and F.I.Rs. were ordered to be registered against all of them, but all those 11 persons were taken into service under orders passed by the Courts and, therefore, the respondent was also entitled to be retained in service.

15. Per contra, Sri. Mohit Jauhari, the learned Standing Counsel has submitted that appointment letters had been issued in favour of those 11 candidates whereas no appointment letter had been issued in favour of the petitioner and, therefore, the respondent's case is not similar to that of those 11 candidates.

16. When we examine the material available on record, we find that the aforesaid submission of the learned Standing Counsel is not supported by any material. The respondent had categorically stated in his representation that selection of 11 other persons was also cancelled for the same reason but all those 11 persons were taken into service under orders passed by the Courts and in the order dated 28.12.2016 passed on his representation, merely this much has been stated that convicting or acquitting a person is within the jurisdiction of the Courts and no comment was needed in this regard. It was not stated by the Commandant that the respondent's case was in any manner different from those 11 persons. Even in the affidavit filed before this Court, no such plea has been taken. Therefore, we find no force in the aforesaid submission of the learned Standing Counsel and upon examination of the material available on record, we find that 11 other similarly situated persons have been retained in service and, therefore, the respondent cannot be treated differently and he is also entitled to be retained in Service like those 11 persons. While so holding, we have also kept in mind the fact that when the incident, which led to lodging of a case against the respondent, took place, the respondent was a minor aged about 15 years and he was studying in High School.

17. During submissions, the learned Counsel for the respondent has filed a Supplementary Counter Affidavit bringing on record an order dated 06.03.2019 passed by the Commandant appointing the respondent in compliance of the order dated 27.03.2018 passed by the Hon'ble Single Judge and the appointment has been made subject to the final order to be passed in this Special Appeal.

18. It has also been stated in the Supplementary Counter Affidavit that one Awdhesh Kumar Bharti was also recruited in the year 1998 alongwith the respondent and his selection was also cancelled for a similar reason. He had filed Writ Petition No. 5093 (S/S) of 2000, which was allowed by means of an order dated 16.09.2003 and he was allowed to join the service on 09.02.2004 and he was paid arrears of salary with effect from 19.03.1999 and he was given seniority with effect from 01.10.1998. It is relevant to note that in pursuance of the direction issued by the Inspector General, F.I.Rs. were filed against all the 13 candidates, including Awdhesh Kumar Bharti.

19. Therefore, we find ourselves in complete agreement with the view taken by the Hon'ble Single Judge that the order dated 28.12.2016 passed by the Commandant 2nd Battalion P.A.C. Sitapur rejecting the respondent's representation, as also the letter 19.03.1999 sent by the Commandant informing about cancellation of his selection on the dictate of the Inspector General, are unsustainable in law.

20. The Special Appeal lacks merits and the same is hereby dismissed. However, the direction issued by the Hon'ble Single Judge to retain the respondent in service is modified and the Appellants are directed to appoint the respondent on the post of Constable in furtherance of the recruitment process that was initiated in the year 1998, within a period of four weeks from the date of this judgment. It is further directed that the respondent shall be treated to have been appointed in furtherance of the select list prepared in the recruitment process initiated in the year 1998 and he shall be entitled to all consequential benefits like seniority etc.

21. Regarding back wages, it is significant to note that another similarly situated candidate Awdhesh Kumar Bharti was allowed to join the service on 09.02.2004 in furtherance of an order dated 16.09.2003 passed in Writ Petition No. 5093 (S/S) of 2000 and he was paid arrears of salary with effect from 19.03.1999 and he was given seniority with effect from 01.10.1998. The respondent had challenged cancellation of his selection by filing Writ Petition No. 1195 (S/S) of 2000, which was disposed of by this Court with a direction to the respondent to prefer a representation before the Commandant Second Battalion PAC. The representation preferred by the respondent was rejected by means of an order dated 15.05.2000. The respondent challenged the rejection order dated 15.05.2000 by filing Writ Petition No. 5086 (S/S) of 2000. An Hon'ble Single Judge of this Court dismissed the Writ Petition but Special Appeal Defective No. 792 of 2012 filed by the respondent was allowed by means of a judgment and order dated 28.08.2014 and the cancellation order was quashed the cancellation order passed by the police authorities and directed that the respondent shall be allowed to complete the training and he shall be taken in service. The State had challenged the aforesaid judgment and order dated 28.08.2014 by filing S.L.P. (Civil) No. 9835 - 9836 of 2015 and the S.L.P. was decided by means of an order dated 22.11.2016 with the observation that the case of the respondent be considered in light of the judgment passed in the case of Avtar Singh versus Union of India and others, (2016) 8 SCC 471. Thereafter the Commandant 2nd Battalion PAC again reiterated his earlier by means of an order dated 28.12.2016, ignoring the directions of the Hon'ble Supreme Court in the order dated 22.11.2016 and the law laid down in Avtar Singh (Supra).

22. In view of the aforesaid facts and circumstances, we are of the considered view that the order dated 28.12.2016 passed by the Commandant was wholly illegal. Therefore, although the respondent has not performed any duties, fault for the same lies on the Commandant and in the circumstances of the case, the respondent is entitled to be paid full back wages since 28.12.2016, the date when the respondent's representation submitted in compliance of the order dated 22.11.2016 passed by the Hon'ble Supreme Court was rejected.

(Subhash Vidyarthi, J.)    (Ramesh Sinha, J.)
 
 Order Date :-  2nd March, 2023
 
Pradeep/-