SC Judgement dated 02.05.2022, Pawan Kumar Vs Union of India, CIVIL APPEAL NO(s). 3574 OF 2022.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(s). 3574 OF 2022 (Arising out of Special Leave Petition (Civil) No.6009 of 2016)
PAWAN KUMAR APPELLANT(S)
VERSUS
UNION OF INDIA & ANR. RESPONDENT(S)
JUDGMENT
Rastogi, J.
1.Leave granted.
2.The instant appeal is directed against the judgment and order
passed by the Division Bench of the High Court of Delhi dated 17th
November, 2015, whereby the High Court
upheld the order of discharge dated 24th April, 2015, taking recourse to clause 9(f) of the
employment notice no.1/2011 dated 27th February, 2011 read with
Rule 67.2 of Railway Protection Force
Rules, 1987 (hereinafter
referred to as “the RPF Rules 1987”).
3.The brief facts of the case culled out from the record are that
the employment notice for appointment to the post of Constable in
the Railway Protection Force (RPF), including Railway Police Special
Force (RPSF) came to be published on 27th
February, 2011. The appellant being eligible submitted application form and participated
in the selection process and after qualifying the written examination
held on 23rd June, 2013 followed with physical efficiency test held on
12th June, 2014 and after his final selection was sent for training.
While the appellant was undergoing training,
he came to be
discharged by an order dated 24th April, 2015 invoking clause 9(f) of
the employment notice no.1/2011 dated 27th
February, 2011 and
Rule 67.2 of the RPF Rules 1987.
4.That became the subject matter of challenge at the instance of
the appellant by filing a writ petition before the High Court of Delhi.
It came on record that at one
stage FIR no.75 under Sections
148/149/323/506/356 IPC was registered against him on 4th April,
2011 and after chargesheet came to be filed on 13th April, 2011,
charge was framed on 7th July, 2011.
As it was a false case
registered against him, the appellant was honourably acquitted by
the competent Court of jurisdiction by
the judgment dated 12th
August, 2011 and this fact, according to the respondent, was not
disclosed by him when he filled the attestation form on 27th
May,
2014 that he was prosecuted at one stage and this being a case of
suppression of information/false declaration in the verification form,
the High Court dismissed the writ
petition under judgment impugned dated 17th November, 2015 and that became the subject
matter of challenge in appeal before this Court.
5.We have heard learned counsel for the parties and with their
assistance perused the material available on record.
6. The process of selection was
initiated by the respondents
pursuant to the employment notice no.1/2011 dated 27th February,
2011 for filling up the post of Constable in RPF/RPSF. Clause 9(f) of
the RPF Rules 1987, which is relevant for the present purpose is
reproduced hereunder:
“9(f)
Candidates found to be having adverse
report on their antecedents and character may not be appointed in RPF including
RPSF. False declaration is an offence under the law and will lead to
disqualification of the applicant, institution of criminal case and also
dismissal from service, if appointed. Hence, applicants are advised to
be careful while filling in the application.”
7.Indisputedly, on the date when the application form was filled
by the appellant pursuant to employment notice no.1/2011, no such
criminal case was either instituted or pending against him and what
was disclosed by him at the time of filling his application form
pursuant to employment notice no.1/2011,
there was no suppression of relevant
information or submission of false
declaration at that stage. It was unfortunate that a false criminal
case of trivial nature came to be registered against him on 4th April,
2011 and since it has no legs to stand as much before the chargesheet could be filed, the de facto complainant submitted his affidavit
on 19th April, 2011 that no such alleged incident on 4th April, 2011
had taken place and the bag was found beneath the driver seat itself
and under misconception, a complaint was lodged by him.
The prosecution witness has not supported
case of the prosecution during the course of trial and for that reason the appellant was
honourably acquitted by the
trial Court by judgment dated 12th
August, 2011.
8.Unfortunately, when the appellant filled the attestation form at
a later stage on 27th May, 2014, certain formation were desired to be
disclosed by him and in clause 12(a) and 12(b) of the verification
form, according to the respondent, as the appellant mentioned “No”,
when he was asked to disclose as to whether he has ever been
arrested or has been prosecuted, in answer to clauses 12(a) and (b),
which was considered to be a
suppression of relevant
information/submission of false declaration in the verification form
as regards to his criminal antecedents. Proceeding on the said
premise, the order of discharge came to be passed on 24th April,
2015. It will be relevant to quote the extract of the information
relevant for the purpose :
“Attestation Form
NOTE : THIS ATTESTATION FORM WILL BE
UTILISED ONLY UPON FINAL CONSIDERATION AND ACCEPTANCE OF
THE CANDIDATURE AFTER VIVAVOCE AS SELECTED
CANDIDATE SUBJECT TO FULFILMENT OF OTHER
PRE CONDITIONS. WARNING: THE FURNISHING OF
FALSE INFORMATION OR SUPPRESSION OF ANY
FACTUAL INFORMATION IN THE ATTESTATION FORM
WOULD BE A
DISQUALIFICATION, AND IS LIKELY TO RENDER THE
CANDIDATE UNFIT FOR EMPLOYMENT UNDER THE GOVT.
……………………….
12 (a)
Have you ever been arrested?
Yes/No _/
(b)
Have you ever been prosecuted?
Yes/No _/ ……………………….”
9. Under the Railway Protection Force Rules, 1987, at the time of
entry into service a verification of character and antecedents of the
incumbent has to take place according to the procedure prescribed
by the Central Government from time to time.
Rule 52 of the Rules
1987 is reproduced herein below:
“Rule 52/VERIFICATION :
52.1 As soon as a recruit is selected
but before he is formally
appointed to the Force, his character and antecedents shall be got
verified in accordance with the procedure prescribed by the Central
Government from time to time. 52.2
Where after verification, a recruit is not found suitable for
the Force, he shall not be appointed as a member of the Force.”
10.
It may be noticed that while a recruit is selected and before he
is formally appointed, his character/antecedents have to be verified
and after due verification if the recruit is found suitable for the post,
may be considered for appointment as a member of the force. What
is required that after the verification of character/antecedents of the
recruit has taken place, it presupposes and casts an obligation on
the appointing/competent authority to take into consideration as to
whether the kind of suppression of
alleged information/false declaration holds him suitable for appointment to the force, in terms
of Rule 52 of the Rules 1987.
11.
This cannot be disputed that the candidate who intends to
participate in the selection process is always required to furnish
correct information relating to his character and antecedents in the
verification/attestation form before and after induction into service.
It is also equally true that the person who
has suppressed the
material information or has made false declaration indeed has no
unfettered right of seeking appointment or continuity in service, but
at least has a right not to be dealt with arbitrarily and power has to
be judiciously exercised by the competent authority in a reasonable
manner with objectivity having due regard to the facts of the case on
hand. It goes without saying that the yardstick/standard which has
to be applied with regard to adjudging suitability of the incumbent
always depends upon the nature of post, nature of duties, effect of
suppression over suitability to be considered by the authority on due
diligence of various aspects but no hard and fast rule of thumb can
be laid down in this regard.
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 17th
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.1
. While summarizing the 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:
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 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 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.”
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 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.
14.
At one stage after the matter being heard, detailed order was
passed by this Court on 21st October, 2021 and taking note of the
judgment of Avtar Singh (supra) directed the employer to review its
decision in the light of the decision of this Court. In compliance
thereof, the review order has been passed on 23rd December, 2021
confirming its earlier decision of discharge dated 24th
April, 2015.
The bare perusal of the review order dated 23rd
December, 2021,
itself indicates that the authority has not applied its mind and just
after reproduction of facts, confirmed the order of discharge dated
24th April, 2015.
15.
It may be further noticed that in para 5(c) of the order, a
reference has been made of the affidavit submitted by the appellant
at the time of filling his application form, but on the day when the
application form was filled, the information which he disclosed in
terms of clause 9(f) of employment notice indisputedly, no criminal
case on that date was either instituted or pending against him. It is
relevant to note that the employment notice is of 27th February, 2011
and the alleged criminal case was instituted on 4th April, 2011. At
the same time, the authority has not even considered the scope and
ambit of Rule 52 of the Rules 1987 that after verification of the
character/antecedents of the incumbent, it
will be an obligation
upon the authority to examine as to whether the incumbent/recruit
is suitable to become a member of
the force and without appreciation in
a mechanical manner confirmed the order
of discharge dated 24th April, 2015. 16.
The judgment relied upon by the respondent Rajasthan Rajya
Vidyut Prasaran Nigam Limited and another
v. Anil Kanwariya2
may not be of any assistance for the reason that it was
a case where the respondent employee before submitting application
pursuant to the advertisement inviting applications was convicted by
the competent Court of jurisdiction and this fact was not disclosed
by him while filling his application form and that was the reason
favoured upon the Court while upholding action of the authority in
passing the order of termination which
was impugned in the proceedings. We have already quoted paragraph 38 of the judgment
by a threeJudge Bench of this Court in Avtar Singh (supra) and in
the context of the factual background of the present case applied the
said principles. One distinguishing factor, as noticed above, is that
the criminal complaint/FIR in the present case was registered post
submission of the application form.
We have also taken into account the nature of the allegations made in the criminal case and
that the matter was of trivial nature not involving moral turpitude.
Further, the proceedings had ended in a clean acquittal. As is clear
from paragraph 38 in Avtar Singh
(supra), all matters cannot be
put in a straitjacket and a degree of flexibility and discretion vests
with the authorities, must be exercised with care and caution taking
all the facts and circumstances into consideration, including the
nature and type of lapse.
17.
Adverting to the facts of the
instant case, at the time of attestation
form filled by the appellant, the
criminal case was
already registered against him but it may be noticed that at the very
threshold, the complainant filed his affidavit that the complaint on
which FIR came to be registered was due to misunderstanding and
he did not want to pursue his case any further, but still chargesheet came to be filed and on the first date of hearing, the alleged
victim PW.1 did not support case of the prosecution and thus the
order of clean acquittal came to be passed by the learned Judge of
competent jurisdiction by judgment dated 12th August, 2011.
18.
The criminal case indeed was of trivial nature and the nature of
post and nature of duties to be discharged by the recruit has never
been looked into by the competent authority while examining the
overall suitability of the incumbent keeping in view Rule 52 of the
Rules 1987 to become a member of
the force. Taking into
consideration the exposition expressed by this Court in Avtar Singh
(supra), in our considered view the order of discharge passed by the
competent authority dated 24th April, 2015 is not sustainable and in
sequel thereto the judgment passed by the Division Bench of High
Court of Delhi does not hold good and deserves to be set aside.
19.
Consequently, the appeal succeeds and is
allowed. The judgment of the Division
Bench of the High Court dated 17th
November, 2015 and the order of discharge dated 24th
April, 2015 and dated 23rd December, 2021 are hereby quashed and set aside.
The Respondents are directed to reinstate the appellant in service on
the post of Constable on which he was selected pursuant to his
participation in reference to employment notice no.1/2011 dated
27th February, 2011. We make it clear that the appellant will not be
entitled for the arrears of salary for the period during which he has
not served the force and at the same time he will be entitled for all
notional benefits, including pay, seniority and other consequential
benefits, etc. Necessary orders shall be passed within a period of
one month from today.
No costs.
20.
All pending application(s) shall stand disposed of.
…………………………….. J. (Ajay Rastogi)
…………………………….. J. (Sanjiv Khanna)
New Delhi.
May 02, 2022.
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