Dharmendra Kumar vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 16505 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Neutral Citation No. - 2023:AHC-LKO:36887-DB
 
Court No. - 1
 

 
Case :- SPECIAL APPEAL No. - 253 of 2023
 

 
Appellant :- Dharmendra Kumar
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt. Civil Secrt. Lko. And Others
 
Counsel for Appellant :- Ravi Singh,Abhay Raj Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Om Prakash Shukla,J.

(1) Heard Shri Ravi Singh, learned counsel representing the appellant-petitioner and learned State Counsel representing the State-authorities.

(2) This Special Appeal instituted under Chapter VIII Rule 5 of the Rules of the Court seeks to challenge the order dated 24.04.2023 passed by learned Single Judge, whereby Writ - A No.18898 of 2019 filed by the appellant-petitioner, has been dismissed and the order dated 28.02.2019 passed by the Superintendent of Police, Lakhimpur Kheri, whereby the appellant-petitioner was declined to be appointed against the post of Police Constable, has been upheld.

(3) Shri Ravi Singh strenuously arguing on behalf of the appellant-petitioner has submitted that the order under appeal herein passed by learned Single Judge is unsustainable for the reason that the appellant-petitioner having been tried in the criminal case under Section 66 (E) of Information Technology Act was acquitted by means of an order passed by the learned Trial Court on 01.04.2023 and since the said order of acquittal was a clean acquittal and not on technical grounds or not on account of the appellant-petitioner having been given benefit of doubt, it cannot be said that the appellant-petitioner was guilty of any act leading to moral turpitude. His submission, thus, is that the learned Single Judge appears to have lost sight of the aforesaid facts and accordingly, the order passed in the writ petition cannot be permitted to sustain.

(4) Shri Ravi Singh has placed heavy reliance on the judgment of Hon'ble Supreme Court in the case of Avtar Singh versus Union of India and others reported in (2016) 8 SCC 471, wherein it has been held that the competent authority may take appropriate decision as to continuance in employment of the employee concerned, if in the criminal case the employee concerned has been acquitted not on technical grounds or by giving benefit of doubt but if it is a case of clean acquittal. His submission thus is that the law laid down by Hon'ble Supreme Court in the case of Avtar Singh (supra) clearly permits the appellant-petitioner to be given immediate appointment on the post in question.

(5) On the other hand, learned State Counsel has opposed the prayers made in this Special Appeal and has submitted that having regard to the antecedents of the appellant-petitioner and his involvement in the criminal case under Section 66 (E) of Information Technology Act and also considering the fact that the police is a disciplined force, no fault can be found with the order passed by learned Single Judge in the writ petition whereby the prayers made by the appellant-petitioner have been refused. In his submission, learned State Counsel has urged that the Special Appeal is liable to be dismissed at its threshold.

(6) We have given our thoughtful consideration to the the competing submissions made by learned Counsel representing the respective parties and have also perused the records available before us on this appeal.

(7) The process of direct recruitment to the post of Constable was initiated in the year 2015, wherein the appellant-petitioner participated. He was also selected however, in the meantime in terms of Government Order dated 28th April, 1958 his character verification was got done. On account of his involvement in Case Crime No.182 of 2017, his character was not verified by the District Magistrate. On the said count, the appointment to the appellant-petitioner was refused despite having been selected.

(8) Case Crime No. 182 of 2017 was initially registered under Sections 376 and 506 IPC, however, on investigation both the said charges were dropped and the charge sheet was filed only under Section 66 (E) of Information Technology Act, 2000. The appellant-petitioner was tried for the said offence however the learned trial court by means of an order dated 01.04.2022 acquitted the appellant-petitioner of the said charge. The issue, thus, for our consideration in this case is as to whether on being acquitted by the order passed by the learned trial court on 01.04.2023 in Case Crime No.182 of 2017, under Section 66(E) of Information Technology Act, the appellant-petitioner is entitled to be considered for appointment or not.

(9) The law relating to verification of antecedents and character etc. of an employee seeking appointment after his recruitment, has been summed up by Hon'ble Supreme Court in the case Avtar Singh (supra). The relevant conclusions in Avtar Singh (supra) by Hon'ble Supreme Court have been drawn in paragraph 38.1 to paragraph 38.11, which are extracted here-in-below:

"(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:-

(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.

(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"

(10) In view of the aforesaid law laid down by Hon'ble Supreme Court in Avtar Singh (supra), we need to examine the facts of the present case. It is not a case where the appellant-petitioner had suppressed the information with the authorities of his involvement in Case Crime No.182 of 2017. It is also not a case where the appellant-petitioner had given any false or incorrect information to the authorities. It is rather a case where after recruitment process was undertaken, an FIR was lodged against the appellant-petitioner at Case Crime No.182 of 2017, however, the trial court by means of the order dated 01.04.2023 has acquitted him. In terms of the conclusions drawn by Hon'ble Supreme Court in the Case of Avtar Singh (supra) in paragraph 38.4.3, what we need to now consider is as to whether the acquittal granted to the appellant-petitioner in the criminal case was on technical grounds or he was given benefit of doubt or it is a case of clean acquittal.

(11) The order of acquittal dated 01.04.2023 passed by the learned trial court is on record. We have perused the said order, and we find that it is not a case where the appellant-petitioner was acquitted on any technical ground or by given the benefit of doubt; rather, it is a case where the guilt against him could not be brought home on the basis of evidence led by the prosecution.

(12) Accordingly, we are of the opinion that once the clear acquittal of appellant-petitioner has been recorded by the competent court by passing the order dated 01.04.2023, it is incumbent upon the authority concerned to form its opinion afresh about the suitability of the appellant-petitioner to be appointed on the post of constable in the police force.

(13) According to the relevant Government Order, it is the District Magistrate who has to verify the character in case appointment is being sought by a person. The Government Order also provides that if the Superintendent of Police of the area concerned gives an adverse report, the person seeking appointment would be given an opportunity of hearing by the District Magistrate before he forms his final opinion about the character of the person.

(14) The order dated 28.02.2019 was passed by the Superintendent of Police, Lakhimpur Kheri prior to acquittal of the appellant-petitioner by the trial court vide judgement and order dated 01.04.2023. We have already opined that the order of acquittal is clean order of acquittal and accordingly in view of the provisions contained in the Government Order dated 28th April, 1958, it will be appropriate that the District Magistrate may consider for verification of character of the appellant-petitioner afresh. Learned Single Judge, however, appears to have not taken into account the aforesaid aspects of the matter, specially the nature of acquittal recorded in the order dated 01.04.2023 by the learned trial court has not been taken into consideration.

(15) In view of the aforesaid, the Special Appeal is hereby allowed. The order dated 24.04.2023 passed by learned Single Judge in Writ - A No.18898 of 2019 is set aside. The order impugned in the writ petition, namely, the order dated 28.02.2019 passed by Superintendent of Police, Lakhimpur Kheri is hereby quashed and a direction is issued to the District Magistrate, Lakhimpur Kheri to consider the verification of character of the appellant-petitioner afresh in the light of the judgment passed by Hon'ble Supreme Court in the case of Avtar Singh (supra) and also in view of the order of acquittal recorded in the case of appellant-petitioner by the learned trial court vide its judgement and order dated 01.04.2023.

(16) For the said purpose the appellant-petitioner shall approach the District Magistrate by making an application annexing therewith the judgment of the acquittal dated 01.04.2023 and also enclosing a copy of the judgement rendered by Hon'ble Supreme Court in the case of Avtar Singh (supra).

(17) The District Magistrate thereafter shall form his opinion afresh about the character of the appellant-petitioner and submit the same before the appointing authority/appropriate authority, who shall act in accordance with law.

(18) The aforesaid exercise shall be completed by the District Magistrate within 2 months from the date a copy of this order is produced before him.

(19) There will no order as to costs.

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Order Date :- 24.5.2023

KR