Karnataka High Court

Durgesha K T vs Chief Administrative Officer on 9 December, 2021

Bench: Alok Aradhe, Anant Ramanath Hegde

                            1



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 9TH DAY OF DECEMBER 2021

                        PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                          AND

 THE HON'BLE MR.JUSTICE ANANT RAMANATH HEGDE

               W.A. No.851 OF 2021 (S-RES)
BETWEEN:

DURGESHA K.T.
S/O TULASIRAJU K.K.
AGED ABOUT 28 YEARS
R/AT KOTHATHI VILLAGE AND POST
KOTHATHI HOBLI
MANDYA TALUK AND DISTRICT-571401.
                                             ... APPELLANT
(BY MR. PAVANA CHANDRA SHETTY H, ADV.,)

AND:

CHIEF ADMINISTRATIVE OFFICER
DISTRICT AND SESSIONS COURT
MANDYA DISTRICT
MANDYA-571401.
                                          ... RESPONDENT
(BY MRS. S. SUSHEELA, SR. COUNSEL FOR
     MR. ANAND K, ADV.)
                            ---

       THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER DATED
08.03.2021 IN W.P. NO.4395/2021 (S-RES) PASSED BY THE
LEARNED SINGLE JUDGE AND ALLOW THIS WRIT APPEAL AS
PRAYED IN THE WRIT PETITION WITH COSTS THROUGHOUT AND
                                 2



GRANT SUCH OTHER RELIEFS AS THIS HON'BLE COURT MAY
DEEM FIT TO GRANT IN THE CIRCUMSTANCES OF THE CASE.


      THIS W.A. COMING ON FOR FURTHER HEARING, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:


                         JUDGMENT

This intra court appeal has been filed against the order

dated 08.03.2021 by which writ petition preferred by the

appellant has been dismissed.

2. Facts leading to filing of this appeal briefly stated

are that on 06.09.2016, a First Information Report was

registered viz., Crime No.599/2016 for offences under

Section 143, 341 and 149 of Indian Penal Code by Mandya

Rural Police Station. In the said First Information Report, the

name of the appellant does not find mention. Thereafter, on

20.01.2017 a charge sheet was filed before the Judicial

Magistrate First Class, in which appellant was arrayed as

accused No.22.

3. A Notification dated 17.12.2018 was issued by

Principal District and Sessions Judge, Mandya by which

application was invited from eligible candidates for filling up

the post of Process Server. The appellant applied for the

aforesaid post. The appellant was called for interview of viva

voce on 11.01.2020, which was postponed to 13.01.2020. On

the aforesaid date the appellant was interviewed and was

found eligible for appointment to the post in question.

Thereupon, a notice dated 28.01.2020 was issued to the

appellant by which the appellant as asked to produce the

original documents mentioned therein within a period of 20

days.

4. Thereafter, an application under Section 321 of

Cr.P.C was filed by the State Government to withdraw the

criminal case pending against the appellant and others.

Thereupon, the court by an order dated 28.02.2020

discharged the appellant as well as other accused persons

from the offence alleged against them. The Superintendent of

police by a communication dated 04.03.2020 informed the

office of the Principal District and Sessions Judge, Mandya

that Crime No.599/2016 in C.C.No.123/2017 has been

registered against the appellant. On the basis of the

aforesaid information, the appellant by a communication

dated 27.07.2020 was informed that he has not disclosed

the factum of pendency of a criminal case at the time of filing

of the application for the post of Process Server and

therefore, he is not found entitled for selection.

5. The appellant challenged the validity of the order

dated 27.07.2020 in a writ petition. The appellant also

sought for a writ of mandamus directing the respondent to

give effect to the order dated 28.01.2020 and permit the

appellant to work as Process Server. The said writ petition

was dismissed by the learned Single Judge by an order dated

08.03.2021 on the ground that on the date of selection the

appellant was accused in a criminal case and he has not

disclosed the same in the application submitted for

appointment to the post of Process server. In the aforesaid

factual background, this appeal has been filed.

6. Learned counsel for the appellant submitted that

the appellant was not named as an accused in the First

Information Report and no complaint was filed by anybody

against the appellant. It is further submitted that neither

summons were issued to the appellant nor any charges are

framed against him. It is also urged that on 28.02.2020, the

criminal case pertaining to agitation in relation to inter state

dispute between the State of Karnataka and State of

Tamilnadu regarding sharing of river water was withdrawn. It

is also urged that the appellant had no knowledge about the

criminal case pending against him. However, the aforesaid

aspect of the matter was not appreciated by the learned

Single Judge.

7. On the other hand, learned Senior counsel for the

respondent has invited the attention of this court to the

application submitted by the appellant and has pointed out in

column 11 of the aforesaid application, the appellant has

clearly stated that no criminal case is pending against him.

Learned Senior counsel for the respondent has also invited

the attention of this court to declaration furnished by the

appellant, which states that in case, any information

furnished by the appellant is found to be false, the

application submitted by him is liable to be rejected. It is

further submitted that appellant has suppressed the factum

of a criminal case pending against him.

8. We have considered the submissions made by

learned counsel for the parties and have perused the record.

It is trite law that the whole object of seeking verification of

character and antecedents is that a suitable person is

appointed for the post in question and it is for the employer

to form an opinion with regard to suitability of an employee

for the post in question. A division bench of this court in

JAINANDRA SINGH VS. STATE OF U.P., (2012) 8 SCC

748 noticed the divergent views taken by various decisions

of the Supreme Court on the question of suppression of

information or submitting false information in the verification

form with regard to the fact of having primarily being

prosecuted, arrested as well as with regard to pendency of a

criminal case. The matter was thereafter, referred to a three

judge bench of Supreme Court in AVATAR SINGH VS.

UNION OF INDIA', (2016) 8 SCC 471 wherein in para 38

of the decision, the following conclusions were recorded:

We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of the aforesaid discussion, we summarize 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 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.

9. In the instant case, a criminal case against the

appellant for offences under Section 143, 341 and 149 of

Indian Penal Code was pending. However, there is no

material on record to indicate whether the appellant had the

knowledge about the pendency of the case at the time when

he applied for the post. Admittedly, the suitability of the

appellant for the post in question has to be adjudged by the

employer. In the fact situation of the case, para 38.8 of the

Avatar Singh supra squarely applies to the facts of the case.

For the aforementioned reasons, the order passed by

the learned Single Judge is set aside and the matter is