Hemant Kumar Malav S/O Shri Ram ... vs The Secretary Administration ...
2023 Latest Caselaw 3100 Raj/2

[2023:RJ-JP:16660-DB]

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

                D.B. Special Appeal (Writ) No. 606/2023
                                           In
                  S.B. Civil Writ Petition No.2669/2018
Hemant Kumar Malav S/o Shri Ram Swaroop Malav, Aged About 30
Years, Resident Of Village Pisahera, Post Amlijhar, Tehsil - Kanwas,
Kota, Rajasthan - 325001.
                                                                          ----Appellant
                                       Versus
1.       The    Secretary        Administration,        Rajasthan         Rajya    Vidyut
         Prasaran Nigam Limited, Vidyut Bhawan, Janpath, Jyoti
         Nagar, Jaipur.
2.       The Superintending Engineer (TCC-Vii), Rajasthan Rajya
         Vidyut Prasaran Nigam Limited, Sirohi, Rajasthan.
3.       The Assistant Engineer (132 KV GSS), R Rajasthan Rajya
         Vidyut    Prasaran        Nigam        Limited,        Pipliya    Kala,     Pali,
         Rajasthan.
                                                                    ----Respondents

For Appellant(s) : Mr. Arun Kumar Sharma Advocate.

HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE PRAVEER BHATNAGAR Judgment 04/08/2023

Heard.

This appeal is directed against order dated 11.05.2023 passed

by the learned Single Judge, whereby, the writ petition filed by the

appellant against an order of termination has been dismissed.

Assailing correctness and validity of the order, learned counsel

for the appellant strenuously argued, in attempt to persuade this

Court that even if the appellant had suppressed the information with

regard to pendency of the criminal case registered against him, as

subsequently, before the termination order was passed, he disclosed

the fact, he was not liable to be terminated as the effect of

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suppression was diluted, which fact was not duly considered by the

employer.

We find that the learned Single Judge has relied upon the

decision of the Hon'ble Supreme Court in the case of Rajasthan

Rajya Vidyut Prasaran Nigam Limited and Ors. Versus Anil

Kanwariya, (2021) 10 Supreme Court Cases 136 wherein, it

was held as below:-

"14.The issue/question may be considered from another angle, from the employer's point of view. The question is not about whether an employee was involved in a dispute of trivial nature and whether he has been subsequently acquitted or not. The question is about the credibility and/or trustworthiness of such an employee who at the initial stage of the employment, i.e., while submitting the declaration/verification and/or applying for a post made false declaration and/or not disclosing and/or suppressing material fact of having involved in a criminal case. If the correct facts would have been disclosed, the employer might not have appointed him. Then the question is of TRUST. Therefore, in such a situation, where the employer feels that an employee who at the initial stage itself has made a false statement and/or not disclosed the material facts and/or suppressed the material facts and therefore he cannot be continued in service because such an employee cannot be relied upon even in future, the employer cannot be forced to continue such an employee. The choice/option whether to continue or not to continue such an employee always must be given to the employer. At the cost of repetition, it is observed and as observed hereinabove in catena of decision such an employee cannot claim the appointment and/or continue to be in service as a matter of right."

The aforesaid decision is an authority for the proposition that

suppression of material fact by itself could be made a basis for

termination and that it is not a question about whether an employee

was involved in a dispute of trivial nature and whether he has been

subsequently acquitted or not. Their Lordships have clearly held that

the question is about the credibility and/or trustworthiness of such

an employee who at the initial stage of the employment, i.e., while

submitting the declaration/verification and/or applying for a post

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made false declaration and/or not disclosing and/or suppressing

material fact of having involved in a criminal case. The facts of the

aforesaid case were similar. In that case also, the employee

suppressed the information with regard to the pendency of the

criminal case and secured public employment. Later on, when

services were terminated, challenge was laid to the order.

Subsequent acquittal in such a situation may not come to an aid of

the employee.

Learned counsel for the appellant placed heavy reliance upon

the decision of the Hon'ble Supreme Court in the case of Avtar

Singh Versus Union of India and Others, (2016) 8 Supreme

Court Cases 471.

In the aforesaid decision, the Hon'ble Supreme Court after

survey of various decisions on the issue, laid down following

propositions:-

"38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of 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

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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.

38.6. 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

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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."

Reliance is placed on the observations made by the Hon'ble

Supreme Court in Para-22 (relying upon the decision in the case of

Daya Shankar Yadav Versus Union of India, (2010) 14 Supreme

Court Cases 103) and Para 38.6.

In our considered opinion, those observations and the

principles, which have been laid down by the Hon'ble Supreme Court

do not come to the aid of the appellant for the reason that present is

not a case where the query made in the declaration form was vague,

unspecific or so fixed that a person could be said to be confused as

to what kind of information has to be submitted. Clause-3 of the

declaration form reads as below:-

"3. That neither any criminal case is pending against me nor I have been convicted by any Court of Law in any criminal case."

It is vividly clear that the information sought by way of

declaration was very clear, specific and unambiguous. It cannot be

said that a person of ordinary prudence would be confused as to

what kind of information has to be submitted.

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While summarising principles in cases relating to the

suppression of material information/false information in the matter

of public employment in Para 38.6, it has been stated that in case

when the fact has been truthfully declared in character verification

form regarding pendency of a criminal case of trivial nature,

employer, in the facts and circumstances of the case, in its

discretion, may appoint the candidate subject to decision of such

case.

Apparently, that principle does not come to the aid of the

appellant.

The decision of the Hon'ble Supreme Court in the case of

Rajasthan Rajya Vidyut Prasaran Nigam Limited and Ors.

Versus Anil Kanwariya (Supra) was rendered subsequent to the

aforesaid decision and the law has been declared by the Hon'ble

Supreme Court in similar factual aspects as in the present case.

Therefore, in our opinion, the view taken by the learned Single

Judge is in accordance with law and does not suffer from any error

warranting interference by this Court.

The appeal is, accordingly, dismissed.

(PRAVEER BHATNAGAR),J (MANINDRA MOHAN SHRIVASTAVA),J

SANJAY KUMAWAT-4

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