Masood Ahmad Lone vs Union Of India And Others
2021 Latest Caselaw 1204 j&K/2

                                       h475




     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT SRINAGAR

                                                       SWP No.2355/2018


                                               Reserved on : 16.09.2021
                                               Pronounced on : 29.09.2021

Masood Ahmad Lone                                               ...Petitioner(s)

                             Through:- Ms. Arifa Jan, Advocate
      V/s

Union of India and others                                    ...Respondent(s)

                            Through:- Ms. Nazima Yaqoob, Advocate vice
                                   Mr. T.M.Shamsi, ASGI

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                                  JUDGMENT

1. The petitioner in this petition prays for the following reliefs:-

"i. By issuance of writ, order or direction one in the nature of certiorari, that the impugned order bearing No.13Bn/I-E-Resi- dismissal/10-11/16430-46 dated 13-10-2011 be quashed.

ii. By issuance of writ, order or direction one in the nature of certiorari, that the order bearing No.15919-23 dated 22 June 2018 be quashed.

iii. By issuance of writ, order or direction one in the nature of Mandamus, commanding the respondents to release the salary and other emoluments of the petitioner with all consequential service benefits."

FACTUAL MATRIX

2. The petitioner was appointed to the post of Constable (GD) in

Sashastra Seema Bal (SSB) on 01.10.2010 and was posted to 13 th Bn

Pirprakothi (Bihar). The petitioner underwent recruit basic training w.e.f.

01.10.2010 to 14.07.2011 at 44 Bn/TC Gorakhpur (U.P.). The appointment

of the petitioner was subject to fulfillment of certain terms and conditions

as prescribed in the offer of appointment. Such terms of appointment, inter

alia, included a condition that verification of character and antecedents

would be carried out immediately on joining the service from the

concerned district administration and in the event of furnishing false or

incorrect information at the time of enrollment or any facts or statement

mentioned by the candidate in the verification form being found false or

incorrect or any adverse finding is reported against him, his service shall be

liable to be terminated without assigning any reason. Accordingly, the

verification of character and antecedents of the petitioner was carried out

through District Magistrate, Bandipora (J&K), who, vide his letter

No.DMB/VB/2011/177 dated 14th June, 2011 informed the respondents

that a case FIR No.20/2008 under Sections 148, 341 and 323 RPC had been

registered against him in the Police Station, Gurez (J&K), which was

pending trial before the competent court of law. The petitioner was issued a

show cause notice for having furnished false/incorrect information and

after receiving explanation from the petitioner, the petitioner was dismissed

from service in terms of the impugned order dated 13.10.2011 with

immediate effect.

3. Aggrieved by order dated 13.10.2011, the petitioner filed SWP

No.2401/2011, which was disposed of by this Court vide order and

judgment dated 06.04.2018 by giving liberty to the petitioner to file a

representation justifying his claim for re-consideration of the termination

order on the basis of subsequent event, namely, acquittal in the criminal

case and seeking consideration in terms of paragraph No.38.4.1 of Avtar

Singh v. Union of India and others, (2016) 8 SCC 471. Representation, if

made by the petitioner, was directed to be considered and disposed of

within a period of four weeks.

4. Pursuant to the aforesaid judgment, the representation of the

petitioner was considered by the respondents in the light of judgment of the

Supreme Court in the case of Avtar Singh (supra) and in terms of the

impugned order dated 22nd June, 2018, the same was found devoid of merit

and was, accordingly, rejected. It is this order of rejection, which has

brought the petitioner yet again to this Court through the medium of instant

petition.

GROUNDS OF CHALLENGE

5. Impugned order of consideration dated 22nd June, 2018 passed in

compliance with the directions of this Court is assailed on the following

grounds:-

i) That the respondents have not correctly appreciated the ratio of the

judgment of the Supreme Court rendered in the case of Avtar Singh

(supra), in particular paragraph No.38.4.1 and, therefore, have erred

in rejecting the claim of the petitioner. The impugned order dated

22nd June, 2018 is not in conformity with the directions passed by

this Court while disposing of SWP No.2401/2011.

ii) That the respondents have not appreciated that the involvement of

the petitioner in FIR No.20/2008 was with respect to the offences

trivial in nature and that the petitioner at the time of alleged

occurrence was only 22 years of age and, therefore, mere registration

of FIR, which ultimately ended in clean acquittal of the petitioner,

could not have been made the basis to dismiss the petitioner from

service.

iii) That the respondents have not correctly appreciated the judgment of

acquittal passed by the trial court in proper perspective, in that, the

judgment clearly and cleanly acquits the petitioner and is not by way

of giving any benefit of doubt, as is observed by the respondents in

the impugned order.

RESPONSE OF THE RESPONDENTS

6. Countering the grounds of challenge urged by the petitioner, the

respondents in their reply affidavit rely heavily on the reasoning given in

the impugned order dated 22nd June, 2018 to reject the claim of the

petitioner for revisiting the order of termination and reinstating him back in

service. The rejection of claim of the petitioner is sought to be justified on

the ground that the petitioner at the time of applying for the post submitted

an undertaking that if an adverse report against him comes to the notice of

the respondents during the course of police verification, his service may be

terminated without assigning any reason and that the petitioner also made a

false declaration that he was not involved in any criminal case. The

respondents have further justified the rejection of claim of the petitioner on

the ground that offence of rioting armed with deadly weapons punishable

under Section 148 RPC with which the petitioner was charged cannot, by

any stretch of reasoning, be called an offence of trivial in nature so as to

attract paragraph No.38.4.1 of the judgment of Avtar Singh (supra).

ANALYSIS

7. Having heard learned counsel for the parties and perused the record,

I am of the view that the impugned order of consideration dated 22 nd June,

2018 is not inconformity with the directions passed by this Court dated 6 th

April, 2018 while disposing of SWP No.2401/2011. At this juncture it is

appropriate to reproduce the operative portion of the judgment dated 6th

April, 2018, which reads thus:-

"In this view of the above legal position, the present writ petition stands disposed of giving liberty to the petitioner herein to make a representation justifying his claim for re-consideration of the termination order on the basis of the subsequent event namely the acquittal in the criminal case and seeking consideration in terms of paragraph No.38.4.1 of Avtar Singh v. Union of India & Ors (2016) 8 SCC471. Such representation if made shall be considered and disposed of within a time frame preferably within a period of four weeks."

8. In view of the aforesaid directions of this Court, it was incumbent

upon the respondents to revisit the termination of the petitioner in the light

of his acquittal in the criminal case in FIR No.20/2008 and for doing so, it

was necessary to go through the judgment of acquittal in its entirety to find

out as to whether it was a case of clean acquittal or that the petitioner had

been given the benefit of doubt. The respondents seem to have given only a

cursory glance to the judgment. I have gone through the judgment of

acquittal passed by the Judicial Magistrate 1 st Class, Gurez, which though

not on record was passed on by the learned counsel for the petitioner and

find that the petitioner has been given clean acquittal by the trial court and

not the benefit of doubt. Copy of judgment of acquittal dated 27 th

September, 2012 passed on by the learned counsel for the petitioner is

taken on record and marked as "K". There is also no indication in the

judgment of acquittal that the witnesses did not turn up to depose against

the petitioner for fear of reprisal as is observed by the respondents in the

impugned order dated 22nd June, 2018.

9. A careful reading of the judgment of acquittal would indicate that as

per prosecution witness No.1, at whose instance the FIR was registered in

Police Station, Gurez, a minor scuffle between him and accused Gh. Wani

had occurred on the day of polling in which nobody was injured. He has

not even named the petitioner as an accused who was present during

scuffle. The other prosecution witnesses have not supported the prosecution

version and have, thus, been declared hostile. None of the witnesses that

were examined before the trial court have deposed that the petitioner along

with others, armed with deadly weapons, had resorted to rioting so as to

attract the offence punishable under Section 148 RPC. Other offences like

Sections 341 and 323 RPC are indisputably the offences of trivial in nature.

The respondents have not considered the claim of the petitioner in right

perspective. Para 38.4.1 of Avtar Singh's judgment (supra) puts the matter

of this nature in the discretion of the employer and suggests that the

employer having regard to the trivial nature of the offence and the age of

the employee may ignore such suppression of fact or false information.

10. Undoubtedly and indisputably, the petitioner has suppressed

information with regard to registration of an FIR against him and the

challan pending in the competent court of law. The petitioner submits that

he did not make such disclosure in the application on the ground that he

had been given a clean chit certificate by the S.H.O. concerned.

11. Be that as it may, the fact remains that there is suppression of fact on

the part of petitioner and such suppression may have been made for fear of

rejection of candidature. In any case, the appointment offered to the

petitioner was subject to thorough verification of his character and

antecedents and in view of the clear stipulation in the order of appointment,

his service was liable to be terminated on disclosure of any adverse report

against the petitioner on such verification. This position cannot be disputed,

however, Hon'ble Supreme Court in the case of Avtar Singh (supra) took

host of factors into consideration and summarized its conclusion in

paragraph No.38 of the judgment, which, for facility of reference, is

reproduced hereunder:-

"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."

12. For consideration to be accorded to the case of the nature of the

petitioner, paragraph No.38.4.1 of Avtar Singh (supra) is required to be

read along with paragraph Nos.38.4, 38.4.2, 38.4.3 and 38.5. To reach at a

fair and just conclusion, the petitioner's case cannot be considered under

paragraph No.38.4.1 of the judgment in isolation.

13. The reliance of the respondents on the policy guidelines for

considering such cases issued by the Ministry of Home Affairs vide its

Memo dated 01.02.2012 is also misplaced. The offences under Sections

148, 323 and 341 are not the offences enlisted in Annexure-A appended

with the memo and, therefore, the respondents are not obliged to reject the

candidature of the petitioner, even if the circumstances do not warrant such

action. Otherwise also, from a plain reading of the charge against the

petitioner and the facts recorded in the judgment of acquittal, it clearly

transpires that it was not even the case of rioting punishable under Section

148 RPC.

CONCLUSION

14. Be that as it may, I am of the considered view that the consideration

accorded by the respondents to the claim of the petitioner is not in

conformity with the judgment of this Court nor the same is in consonance

with the broad principles for dealing with such cases laid down in Avtar

Singh's case (supra).

15. This petition is, accordingly, allowed. The impugned order of

consideration dated 22nd June, 2018 is quashed. The respondents are

directed to re-consider and re-visit the order of termination of the service of

the petitioner in the light of observations made hereinbefore and pass

appropriate orders within a period of eight weeks from the date a copy of

this order is served upon the respondents. The respondents shall do well, if

they take a compassionate view in the matter and provide the petitioner an

opportunity to serve the nation instead of leaving him to fend for himself in

the present day of turmoil in the valley. Having said so, the Court leaves it

to the good conscious of the respondents to take an appropriate decision in

the matter.

(Sanjeev Kumar) Judge Srinagar.

29.09.2021 Vinod.

Whether the order is speaking : Yes Whether the order is reportable: Yes