Delhi High Court
Balram Meena vs Union Of India And Anr. on 15 May, 2017
$~24.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) No. 7694/2016
Date of decision: 15th May, 2017
BALRAM MEENA ..... Petitioner
Through Mr. N.S. Dalal & Ms. Toral Banerjee,
Advocates.
versus
UNION OF INDIA AND ANR. ..... Respondents
Through Mr. J.K. Singh, Standing Counsel for
Railways.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MS. JUSTICE PRATHIBA M. SINGH
SANJIV KHANNA, J. (ORAL):
This is second round of litigation.
2. The petitioner-Balram Meena was selected and appointed as
Constable in Railway Protection Force vide letter dated 1st October, 2014.
3. While on training, the petitioner was discharged vide order dated
15th June, 2015. Cancellation of selection was for suppression of material
facts in the application form for the petitioner has failed to disclose that he
was prosecuted and charge sheeted in Crime Case No. 162/2004, registered
at Police Station Rajgarh, Rajasthan under Section 147/323/341/149 of the
Indian Penal Code, 1860.
4. The petitioner was acquitted in the said case vide judgment dated
24th January, 2012.
5. Writ Petition (C) No. 6648/2015 filed by the petitioner challenging
the order of discharge dated 15th June, 2015 was disposed of vide order
dated 10th March, 2016 directing the respondents to issue notice to show
cause and opportunity to respond. The petitioner was given liberty to
explain his case and furnish relevant documents. The operative portion of
the aforesaid order dated 10th March, 2016 reads:-
"4. In such circumstances, we are of the opinion that
the impugned Memorandum cannot withstand judicial
scrutiny. The respondents ought to have issued a notice
to show cause to the petitioner and granted him an
opportunity to respond before passing any orders
discharging him from training. Accordingly, the
impugned Memorandum is quashed and set aside with
liberty granted to the respondents to issue a notice to
show cause to the petitioner based on the police
verification report received by them. The notice to
show cause shall be issued by the respondents within
six weeks from today. Upon receiving the said notice,
the petitioner shall be at liberty to explain his case and
furnish the relevant documents that he proposes to rely
upon, which shall be duly considered by the
respondents and only thereafter shall an order be
passed in accordance with law, under written
intimation to him."
6. The respondents had thereafter issued show cause notice dated 16 th
April, 2016, to which the petitioner responded vide communication dated
18th May, 2016.
7. By the impugned order dated 17th June, 2016, the respondents have
terminated the services of the petitioner recording that he had concealed
and suppressed his involvement in the aforesaid criminal case.
8. The petitioner's contention that the "misstatement" was due to
"mistake" or error was rejected. This order also makes reference to the
Railway Board's letter No. 88/Sec (E)/RC-3/6(IR) (Trg) dated 16th
November, 2005 and paragraph 9(f) of the advertisement published vide
Employment Notice No. 01/2011.
9. Having heard learned counsel for the parties, we feel that the
petitioner should succeed as the matter requires a fresh decision. The
reason is that the issue in question has now been settled by the three-Judge
Bench of the Supreme Court in Avtar Singh versus Union of India and
Others, (2016) 8 SCC 471. After elucidating upon divergent case laws on
the subject, the Supreme Court has summarised the following principles:-
"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.
38.7. 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 the present case, paragraph 38.4 would be applicable and the
authorities would have to examine the case in the light of the aforesaid
paragraph alongwith other paragraphs of the judgment. The precept and
principles have to be kept in view and applied by the authorities.
11. The impugned order dated 17th June, 2016 is accordingly set aside,
with an order of remand for a fresh decision.
12. The aforesaid exercise on remand would be undertaken within a
period of twelve weeks from the date a copy of this order is received by the
respondents. The petitioner would be also sent a letter and given personal
hearing before any order is passed.
13. The writ petition is disposed of in the aforesaid terms, without any
order as to costs.
Dasti to both the parties.
SANJIV KHANNA, J.
PRATHIBA M. SINGH, J.
MAY 15, 2017
VKR
