Jammu & Kashmir High Court
Union Territory Of J&K vs Arsam Imtyaz Malik on 17 February, 2025
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 10.02.2025
Pronounced on: 17.02.2025
WP(C) No. 289/2025
CM No. 578/2025
1. Union Territory of J&K .....Petitioner(s)
through Secretary to Government,
PW(R&B) Department,
Civil Secretariat, Jammu/Srinagar.
2. Chief Engineer, PWD(R&B), Jammu.
3. Chief Engineer, PWD (R&B), Batote.
4. Executive Engineer, PWD (R&B),
Division Bhaderwah.
Through: Mr. Ravinder Gupta, AAG.
Vs
Arsam Imtyaz Malik
S/O Late Imtyaz Hussain
R/O Nagar
Tehsil Bhaderwah District Doda.
..... Respondent(s)
Through: Mr. Sheikh Najeeb, Advocate.
HON‟BLE THE CHIEF JUSTICE
CORAM:
HON‟BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
(PER: M A CHOWDHARY-J)
01. The petitioners, through the medium of this petition
moved under Article 226 of the Constitution of India,
seek quashment of the judgment/order dated 20.06.2024
(„impugned order‟) passed by the Central Administrative
Tribunal, Jammu Bench („the Tribunal‟) in Original
Application („OA‟) No. 61/82/2024 titled "Arsam Imtyaz
Malik Vs. UT of J&K & Ors" whereby the learned
Tribunal has allowed OA and set aside the order
impugned therein dated 03.01.2024 whereby the
petitioner No. 2 had withdrawn the appointment order
issued in favour of the respondent under SRO 43,
pursuant to his appointment order dated 05.12.2023 and
joining order dated 06.12.2023 in PWD (R&B) Division
Bhaderwah. The petitioners, however, have been
authorized to proceed further on conclusion of the trial
against the respondent.
02. The petitioners have pleaded in their petition that the
learned Tribunal while passing the impugned
judgment/order had not taken into consideration this
aspect of the matter that it is a settled proposition of law,
buttressed by catena of judgments that a person is
bound to disclose his antecedents to the appointing
authority; that the respondent had not disclosed the fact
regarding his involvement in criminal activities for which
an FIR was already registered at Police Station
Bhaderwah, at the time of submission of his joining
report; that the learned Tribunal had wrongly relied upon
the J&K Civil Services (Verification of Character and
Antecedents) Instructions, 1997 and wrongly came to the
conclusion that only conviction can bar a person from
joining the Government services, whereas, the fact is that
Rule 17(d) of the Civil Services (CC&A) Rules, 1956
provides for subjective satisfaction of the appointing
authority to weigh the past antecedents of the candidate
with the service and whether the candidate can uphold
the dignity of the post; that the respondent right from
inception of his joining had not disclosed his past, with
regard to pending trial in NDPS case and mere fact that
the respondent is not convicted does not fulfill the
subjective satisfaction of the appointing authority.
03. The facts, as summarized before the learned Tribunal, are
that the respondent came to be appointed under SRO 43
on account of death of his father, by the petitioners
herein by virtue of Order No. CEJ/ADM/232 of 2023
dated 22.11.2023, in compliance to the approval
conveyed by the Administrative Department; that
pursuant to his appointment, the respondent came to be
posted in PWD(R&B), Division Bhaderwah for further
duties and the respondent joined at his place of posting
on 06.12.2023; that the respondent swore an affidavit
that he has not been convicted of any offence by any
court of law and that he is facing trial in one case; that
on 23.12.2023, the respondent No. 4-Executiver
Engineer, PWD(R&B), Division Bhaderwah vide his
communication stated that the respondent had been
allowed to join in the Division after proper verification of
the documents and on receipt of character/antecedent
certificate from CID vide Form No. 55821 dated
17.05.2023; that the respondent had revealed that he
was under trial in one case and said case has not been
disposed of till date as such, instructions were sought for
the withdrawal of the salary of the respondent by the
petitioner No. 4-Executive Engineer, PWD (R&B),
Division, Bhaderwah from the petitioner No. 3-Chief
Engineer, PWD(R&B) Chenab Zone, Batote.
04. The petitioner No. 2-Chief Engineer, PWD (R&B), Jammu
vide his No. CEJ/ADM/01 of 2024 dated 03.01.2024,
however, issued an Order withdrawing the appointment
of the respondent with immediate effect vide
communication No. 1123-27 dated 04.01.2024, on the
sole consideration that the respondent was involved in a
case registered under FIR No. 0087/2023 under section
8/21 of NDPS Act of Police Station, Bhaderwah.
05. The respondent having been aggrieved of withdrawal of
his appointment against Class-IV (MTS) challenged the
Order No. CEJ/ADM/01 of 2024 dated 03.01.2024
passed by the petitioner No. 2, before the learned
Tribunal on various grounds.
06. The petitioners, as respondents before the learned
Tribunal, submitted that on the report of the District
Magistrate, Doda received by the Administrative
Department, instructions had been issued to withdraw
the formal appointment of the respondent herein due to
his involvement in a case registered under NDPS Act
regarding which the fact has been concealed by him, as
such, he was disqualified as per the provisions of Rule
17(d) of J&K CC&A Rules, 1956; that the earlier CID
verification vide Form No. 55821 dated 17.05.2023
issued by the CID Headquarters stating that there was
nothing adverse against the individual was prior to
registration of FIR in NDPS case against the respondent,
therefore, due to his latest status for involvement in a
criminal matter which is under-trial for the offence as
alleged against the respondent, the order impugned
before the learned Tribunal was passed.
07. The learned Tribunal, after hearing both the sides at
length and discussing the rules with regard to character
and antecedents of the Government employees, held that
no doubt the verification of the character and
antecedents is one of the important criteria to test
whether selected candidate is suitable to a post under the
State but registration of a case simpliciter does not
automatically result in conviction of a person and it does
not per se cause a stigma on the character of a person.
08. The learned Tribunal, taking notice of an admitted fact
that the respondent himself by virtue of an affidavit, on
being asked at the time of his joining, disclosed that an
FIR had been registered against him which was pending
disposal before the trial court, further held that the
termination was in violation of principles of natural
justice as before resorting to termination, a reasonable
opportunity to show cause had not been accorded to the
respondent which is implicit in Rules and has to be read
as part and parcel thereof, if not specifically provided.
The learned Tribunal has thus allowed the plea raised by
the respondent herein and quashed the impugned order
whereby the appointment order issued in favour of the
respondent under SRO 43 as Class IV (MTS) had been
withdrawn.
09. Learned counsel for the petitioners argued that the
learned Tribunal has wrongly decided the matter as it
had ignored the plea raised by the petitioners before the
learned Tribunal that the respondent, who had been
appointed on compassionate grounds vide SRO 43, was
allowed to join on a report received from the CID that
there is nothing adverse on the record of his character
and antecedents and asked to swear an affidavit in which
he had not made any mention of the case registered
against him under NDPS Act at Police Station,
Bhaderwah and only mentioned that a criminal case was
pending against him in a court and that the respondent
being involved in a serious case of NDPS was not a fit
person to be retained in the job as he had suppressed the
fact that he was involved in a serious case of NDPS as
Heroine had been recovered by the Bhaderwah police
from the possession of his co-accused.
10. It has been next argued that holding by the learned
Tribunal that the services of the respondent could not
have been dispensed with, without holding a regular
enquiry or following the principles of natural justice was
not attracted in view of the fact that the respondent was
still on probation and his services had not been made
permanent, therefore, no such enquiry was required.
11. Mr. Gupta, learned AAG finally argued that in view of the
involvement of the respondent in a serious case of NDPS,
which the respondent had suppressed and not brought to
the notice of the employer, the employment given to him
though on compassionate grounds had been legally
withdrawn and the learned Tribunal had committed a
grave error in setting aside the order, whereby the
employment offered to the respondent had been
withdrawn.
12. Learned counsel for the respondent, ex adverso, argued
that the respondent had been appointed on
compassionate ground on account of death of his father
while in service, in class IV (MTS) by the petitioners after
the approval of the Administrative Department; that the
respondent had been allowed to join his services by the
petitioners after verifying his character and antecedents
from the CID and also seeking other requirements
including furnishing of an affidavit. He further submits
that CID had given no adverse remarks with regard to the
character and antecedents of the respondent and the
respondent himself in his affidavit had deposed that he
was facing trial in a criminal case, therefore, there was no
question of suppressing any material fact from the
petitioners, by the respondent. It was for the employer to
ask further the respondent with regard to the details of
the criminal case in which he was facing trial and merely
that he had not referred the number of FIR or the details
of the offences of which he had been charged does not
mean that he had suppressed any material fact from the
employer.
13. He has further argued that mere registration of a case
against an individual does not mean that he had
committed the offence until a conviction is recorded by
the court. Chargesheet has been laid against the
respondent and as is borne out from the FIR, the
contraband was alleged to have been recovered from the
co-accused-Mohd. Sohail who was driving the bike and
the respondent was sitting as pillion rider.
14. The first and foremost question is as to whether the
appointment order issued in favour of the respondent
could have been withdrawn without affording him an
opportunity of being heard. In "Mangal Singh Vs.
Chairman, National Research Development
Corporation & Ors" reported as 2009 SCC Online Del
2345, Hon'ble Delhi High Court, where the petitioner, an
appointee on contractual basis had been terminated, by
what he alleged was a punitive and stigmatic order,
without a departmental enquiry, held in Para 20 as
under:
"20. It is trite to say, that when an authority wants to
terminate the services of a temporary employee, it
can pass a simple order of discharge without casting
any aspersion against the temporary servant or
attaching any stigma to his character. As soon as it is
shown that the order purports to cast an aspersion on
the temporary servant, it becomes idle to suggest
that the order is a simple order of discharge. The test
in such cases must be: does the order cast aspersion
or attach stigma to the officer when it purports to
discharge him? If the answer to this question is in
the affirmative, then notwithstanding the form of the
order, the termination of service must be held, in
substance, to amount to dismissal."
15. Even our own High Court in a case titled "Faheem Vs.
Union of Kashmir & Ors" reported as 2003 (Supp) JKJ
235 observing that where termination of temporary
service on account of misconduct attaches a stigma and
is punitive, it cannot be done without holding a proper
enquiry, further held that wherever the temporary
arrangement of temporary service or adhoc service or that
of a probationer is required to be dispensed with, it can
only be on account of unsatisfactory performance.
16. In view of the law laid down as enunciated hereinabove,
we are of the considered opinion that the services of the
respondent, who though was on probation, could not
have been dispensed with without affording an
opportunity of being heard and without following the
principles of natural justice which, in the case on hand,
had not been resorted to by the petitioners.
17. The second question required to be considered by this
Court is with regard to the involvement of the respondent
in a criminal case under NDPS and its bearing with
regard to his character and antecedents for joining a
govt. service. Undoubtedly, it is expected in Govt. service
that the persons having their character above board, free
from any moral stigma, are to be employed. Verification
of character and antecedents is a condition precedent for
appointment to a Government service. The respondent,
who has been facing trial in a case, whether could be
deprived of his chance to serve the Government merely
because a criminal case is pending against him for the
commission of offence punishable under NDPS Act. The
person convicted of an offence involving moral turpitude
should normally be recorded as ineligible for Government
services, however, the respondent has not been convicted
so far for the alleged offences rather his trial is underway.
18. A three Judge Bench of the Apex Court in a case titled
"Avtrar Singh Vs. Union of India & Ors" reported as
(2016) 8 SCC 471, on a reference by a Division Bench of
the Court, considering the cleavage of opinion in various
decisions on the question of suppression of information
or submitting false information, in the verification form,
as to the question of having been criminally prosecuted,
arrested or as to the pendency of a criminal case,
summarized following conclusions in para 30:
(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.
(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.
(3) The employer shall take into consideration the
Government orders/instructions/rules, applicable to the
employee, at the time of taking the decision.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(11) Before a person is held guilty of suppressio veri or
suggestio falsi, knowledge of the fact must be
attributable to him."
19. The Apex Court in a case titled "Pawan Kumar Vs. Union
of India" reported as (2023) 12 SCC 317 held that mere
suppression of material information or furnishing of false
information in a given case does not mean that the
employer can arbitrarily discharge/terminate employee,
while following the law laid down in its earlier judgment
in a case titled "Avtar Singh Vs. Union of India"
reported as (2016) 8 SCC 471 wherein while summarizing
the conclusion, a three Judge Bench of the Apex Court
had laid down broad guidelines which have to be taken
note of by the appointing/competent authority in dealing
with the matters where there is suppression of material
information or disclosure of false information and after
reconciling the earlier judgments succinctly summarized
the conclusions as under:
34. No doubt about it that verification of character
and antecedents is one of the important criteria to
assess suitability and it is open to employer to
adjudge antecedents of the incumbent, but
ultimate action should be based upon objective
criteria on due consideration of all relevant
aspects.
35. Suppression of „material‟ information
presupposes that what is suppressed that „matters‟
not every technical or trivial matter. The employer
has to act on due consideration of
rules/instructions if any in exercise of powers in
order to cancel candidature or for terminating the
services of employee. Though a person who has
suppressed the material information cannot claim
unfettered right for appointment or continuity in
service but he has a right not to be dealt with
arbitrarily and exercise of power has to be in
reasonable manner with objectivity having due
regard to facts of cases.
36. What yardstick is to be applied has to depend
upon the nature of post, higher post would involve
more rigorous criteria for all services, not only to
uniformed service. For lower posts which are not
sensitive, nature of duties, impact of suppression
on suitability has to be considered by concerned
authorities considering post/nature of
duties/services and power has to be exercised on
due consideration of various aspects.
37. The „McCarthyism‟ is antithesis to
constitutional goal, chance of reformation has to
be afforded to young offenders in suitable cases,
interplay of reformative theory cannot be ruled out
in toto nor can be generally applied but is one of
the factors to be taken into consideration while
exercising the power for cancelling candidature or
discharging an employee from service.
20. Since the respondent, who had been appointed as an
MTS (Class IV), the question is whether his service can be
terminated on the ground of a pendency of a criminal
case. Unless a person is held guilty by conviction in a
trial held by a court, the presumption of his innocence
has to be construed as a basic principle of criminal
jurisprudence. Merely involvement in a criminal case
when the trial is still underway is not a mirror to reflect
the character and antecedents of a person. The Apex
Court in a case titled as "State of Gujarat & Anr Vs.
Suryakant Chunilal Shah" reported as 1999(1) SCC 529
has made following observations regarding involvement in
a criminal case on the basis of an FIR:
"The involvement of a person in criminal case does
not mean that he is „guilty‟. He is still to be tried
in court of law and the truth has to be found out
ultimately by the court where the prosecution is
ultimately conducted."
21. Needless to mention that if a deserving person is denied
appointment then even if later on he is acquitted by the
trial court, there is very little scope for him to get the
Government employment. The pendency of a criminal
case cannot be construed as an impediment in
appointment and performance of duties by such person.
22. The learned Tribunal has rightly discussed the J&K Civil
Services (Verification of Character and Antecedents)
Instructions, 1997 notified vide Government Order No.
1918-GAD of 1997 dated 09.12.1997 which are to be
kept in mind with regard to periodic verification of
character and antecedents of Government employee.
Herein in this case, the respondent had not concealed the
fact of being accused in a criminal case and facing trial
and the CID had also not reported any adverse remarks
against him in verification report as such, the
appointment of the respondent could not have been
withdrawn on the basis of mere registration of a case and
pending trial and that too without affording him an
opportunity of being heard, therefore, the learned
Tribunal has rightly decided the case.
23. It appears that the petitioners had proceeded against the
respondent pre-maturely without waiting for the outcome
of his trial before a criminal court with regard to the
charge framed against him. It was open to the petitioners
to take a call on the matter in case the respondent would
have been held guilty and the learned Tribunal has
rightly observed that the petitioners herein shall be at
liberty to proceed against the respondent in case he is
convicted.
24. Having regard to the aforesaid discussion, we are of the
considered opinion that the action of the petitioners in
withdrawing the appointment of the respondent on the
ground of pendency of a criminal case is unjust, arbitrary
and unreasonable. The learned Tribunal has, thus,
rightly concluded vide impugned judgment/order that the
order impugned before the learned Tribunal, withdrawing
the order of appointment in favour of the respondent, was
not in accordance with law and thus, impugned
judgment/order does not warrant any interference by this
Court, invoking extraordinary writ jurisdiction.
25. Viewed thus, the petition is found to be devoid of any
merit and substance and is accordingly dismissed. The
impugned judgment/order dated 20.06.2024 passed by
the learned Tribunal is upheld. The
petitioners/employers shall, however, be at liberty to take
a fresh decision on conclusion of trial of the
respondent/employee, by the criminal court, of course in
accordance with law on the subject.
26. The writ petition along with connected application(s) is
thus, accordingly, dismissed. There shall be no order as
to costs.
(M A CHOWDHARY) (TASHI RABSTAN)
JUDGE CHIEF JUSTICE
JAMMU
17.02.2025
Naresh/Secy.
Whether the order is speaking: Yes
Whether the order is reportable: Yes
...
