Chitta Ranjan Senapati vs State Of Odisha & Ors
2023 Latest Caselaw 8256 Ori

               IN THE HIGH COURT OF ORISSA AT CUTTACK

                              W.P.C.(OA) No.1139 of 2010

  In the matter of an application under Section 19 of the Administrative
  Tribunal's Act, 1985.
                               ..................

        Chitta Ranjan Senapati                       ....               Petitioner

                                                 -versus-

        State of Odisha & Ors.                       ....              Opposite Parties



       For Petitioner         :       M/s. P.K. Mishra (Advocate)
                                      K.L. Kar (Advocate)
                                      A. Gajendra (Advocate)

       For Opp. Parties :             Mr. S.K. Samal
                                      Addl. Govt. Advocate

PRESENT:

   THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY

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        Date of Hearing: 31.07.2023 and Date of Judgment: 31.07.2023
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   Biraja Prasanna Satapathy, J.

The Petitioner has filed the present writ petition challenging the order

of discharge so passed by the Opp. Party No. 4 vide order dtd.10.12.2007

under Annexure-8 and confirmation of the same by the appellate authority -

Opp. Party No. 3 vide order dtd.02.08.2010 under Annexure-13.

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2. It is the case of the Petitioner that the Petitioner was appointed as a Sepoy

vide order under Annexure-1, where he joined on 06.05.2002. It is also

contended that after being so engaged as a Sepoy, the Petitioner undergo the

required training and completed the same successfully. But on the ground that

the Petitioner at the time of his appointment has not disclosed about his

involvement in Sahidnagar P.S. Case No. 292 dtd.16.08.2000, Opp. Party No.

4 on coming to know about the involvement of the Petitioner in the said case,

initiated a proceeding against the Petitioner vide Memorandum

dtd.22.04.2006 under Annexure-2. It is contended that the Petitioner though

submitted his reply under Annexure-3, but basing on the report of the Enquiry

Officer the Petitioner was discharged from his service vide order

dtd.10.12.2007 under Annexure-8.

2.1. Challenging the order of discharge so passed under Annexure-8 the

Petitioner preferred an appeal before the Opp. Party No. 3 vide Annexure-9

dtd.03.04.2008. As in the meantime the Petitioner was exonerated from the

criminal proceeding vide Judgment dtd.30.07.2008 in S.T. Case No.

98/537/2004 arising out of Sahidnagar P.S. Case No. 292 of 2000 under

Annexure-11, the Petitioner also apprised the said fact to the Opp. Party No. 3

on 31.10.2008 vide Annexure-10. In the said representation under Annexure-

10, Petitioner taking into account his acquittal from the criminal charges,

requested the appellate authority to consider his case and allow him

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reinstatement by quashing the order of discharge so passed under Annexure-8.

It is however contended that the appellate authority without taking into

account the acquittal of the Petitioner in the criminal case, rejected the appeal

vide his order dtd.02.08.2010 under Annexure-13.

2.2. Learned counsel for the Petitioner contended that since by the time the

appellate authority took up the appeal, the Petitioner was already acquitted in

the criminal proceeding, the said fact should have been taken into

consideration while taking a decision on the Petitioner's claim for

reinstatement. But the appellate authority without assigning any reason

whatsoever, rejected the appeal vide his order under Annexure-13. It is

contended that since the appellate authority has not assigned any reason

whatsoever while rejecting the appeal and has not taken into consideration the

acquittal of the Petitioner in the criminal proceeding, the said order is not

sustainable in the eye of law. In support of his aforesaid submission, Mr.

Mishra relied on a decision of the Hon'ble Apex Court in the case of Pawan

Kumar Vs. Union of India & Anr. (Civil Appeal No. 3574 of 2022). Hon'ble

Apex Court in Para 12 & 13 of the Judgment has held as follows:-

"12. Earlier, there has been a conflict of opinion in the various decisions of Division Benches of this Court and at the stage when the Division Bench of the High Court dismissed the writ petition under the impugned order dated 17 November, 2015, there were divergent views of this Court and that came to be later settled by a three Judge Bench of this Court in Avtar Singh v. Union of India and others.. While summarizing the

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conclusion, this Court has laid down broad guidelines which has to be taken note of by the appointing/competent authority in dealing with the matters where there is a 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 authorities concerned 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.

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:

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38.1. Information given to the employer by a candidate as to conviction, 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

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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 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."

13. What emerges from the exposition as laid down by this Court is that by mere suppression of material/false information regardless of the fact

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whether there is a conviction or acquittal has been recorded, the employee/recruit is not to be discharged/terminated axiomatically from service just by a stroke of pen. At the same time, the effect of suppression of material/false information involving in a criminal case, if any, is left for the employer to consider all the relevant facts and circumstances available as to antecedents and keeping in view the objective criteria and the relevant service rules into consideration, while taking appropriate decision regarding continuance/suitability of the employee into service. What being noticed by this Court is that mere suppression of material/false information in a given case does not mean that the employer can arbitrarily discharge/terminate the employee from service."

3. Mr. S.K. Samal, learned AGA while supporting the order of discharge

passed under Annexure-8 and so confirmed under Annexure-13, contended

that the appellate authority on the ground of delay in preferring the appeal

rejected the same and accordingly no reason is required to be given. However,

it is contended that since the Petitioner while making the application and

verification roll never disclosed his involvement in the criminal case, he has

been rightly discharged.

4. Having heard learned counsel appearing for the Parties and taking into

account the submissions made, this Court finds that by the time the appellate

authority took up the appeal and passed the order under Annexure-13, the

Petitioner had already been acquitted in the criminal case vide Judgment

dtd.30.07.2008. It is found that the appellate authority has not at all taken into

consideration the said aspect and the decision governing the field while

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rejecting the appeal by confirming the order of discharge. Since the Petitioner

in the appeal has challenged the order of discharge, it is the view of this Court

that the same should not have been dismissed on the ground of limitation.

Therefore, this Court taking into account the fact that the Petitioner has been

acquitted from the criminal charges, is inclined to quash the order at

Annexure-13. While quashing the same, this Court remits the matter to Opp.

Party No. 3 to decide the appeal on merit and while deciding the appeal, Opp.

Party No. 3 is to take into consideration the order of acquittal passed in the

criminal proceeding and the relevancy of the decision as cited (supra). Such a

fresh decision shall be taken within a period of two (2) months from the date

of receipt of this order.

5. The writ petition is disposed of accordingly.

(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 31st of July, 2023/Sneha

Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Aug-2023 12:18:47