AVTAR SINGH v. UNION OF INDIA & Ors.

Judgment

7 S.C.R. 445 AVTAR SINGH v. UNION OF INDIA & ORS. (Special Leave Petition (Civil) No. 20525of2011) JULY21,2016 [RANJAN GOGOi, ARUN MISHRA AND PRAFULLA C. PANT, JJ.) SERVICE LAW.· Appointment - Verification of antecedents - Importance of - Quashing of appointment or dismissal from service on account of supp:-ession of information or submission of false information in the verification as to question of having been criminally prosecuted, arrested or as to pendency of a criminal case - Held: 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 - 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: In a case trivial i:7 nature in which conviction had been recorded, which if disclosed would not have rendered an incumbent unfit for post in question, the empbyer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse - Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee - 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 daub: 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 - In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an emplcyer may 445 A B c D E F G H 446 A B C D E F G H SUPREME COURT REPORTS [2016] 7 S.C.R. pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper. Appointment - Declaration of employee as to concluded criminal case - Held: 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. Appointment - Declaration of employee as to pendency of criminal case - Held: 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. Termination of employee on the ground of misrepresentation or supp,.ession of material information in the verification - Held: Merely because there is a power to terminate services or cancellation of offer of appointment, it does not follow that a person should be removed outrightly - Various aspects have to be considered and the discretion so used should not be arbitrary or fanciful - It has to be guided on certain principles for which purpose verification is sought. Termination of confirmed employee on the ground of misrepresentation or suppression of material information in the verification - Held: The fraud and misrepresentation vitiates a transaction and in case employment has been obtained on the basis of forged documents, the incumbent may be terminated wilhout holding any inquiry - However in case employee is confirmed, holding a civil post and has protection of Article 311 (2), due inquiry has to be held before terminating the services. Verification form - Held: For determining suppression or false information, the 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 A VTAR SINGH v. UNION OF INDIA & ORS. 447 on the basis of suppression or submitting false information as to a A fact which was not even asked for - Before a person is held guilty of suppressio veri or suggestio falsi, la10wledf{e of the fact must be attributable to him. Appointment - Verification of antecedents - Lack of knowledge on part of employee as to pending criminal case - Held: Appointing B authority to take decision after considering the seriousness of the crime. Answering the reference, the Court HELD: 1. In case the employer comc<1 to the conclusion that suppression is immaterial and even if facts would have been disclosed would not have affected adversely fitness of an incumbent, for reasons to be recorded, it has power to condone the lapse. However, while doing so employer has to act prudently on due consideration of nature of post and duties to be rendered. For nigher officials/higher posts, standard has to be very high and even slightest false information or suppression may hy itself render a person unsuitable for the post. However same standard cannot be applied to each and every post. In concluded criminal cases, it has to be seen what has been suppressed is material fact and would have rendered an incumbent unfit for appointment. An employer would be justified in not appointing or if appointed,. to terminate services of such incumbent on due consideration of various aspects. Even if disclosure has been made truthfully the employer has the right to consider fitness and while doing so effect of conviction and background facts of case, nature of offence etc. have to be considered. Even if acquittal has been made, employer may consider nature of offence, whether acquittal is honourable or giving benefit of doubt on technical reasons and decline to appoint a person who is unfit or dubious character. In case employer comes to conclusion that conviction 01· ground of acquittal in criminal case would not affect the fitness for employment, incumbent may be appointed or continued in service. [Para 22] (489-F-H; 490-A-CJ

#2. Coming to the question, whether an employee on probation can be discharged/refused appointment though he has been acquitted of the charge/s, if his case was not pending c D E F G H 448 SUPREME COURT REPORTS [2016] 7 S.C.R. when form was filled, in such matters, employer is bound to consider grounds of acquittal and various other aspects, overall conducl of em11Ioyee including the accusations which have been levelled. If on verification, the antecedents are otherwise also not found good, and in number of cases incumbent is involved then notwithstanding acquittals in a case/cases, it would be open to the employer to form opinion as to fitness on the basis of material on record. In case offence is petty in nature committed at young age, such as stealing a bread, shunting of slogans or is such which does not involve moral turpitude, cheating, misappropriation etc. or otherwise not a serious or heinous offence and accused has been acquitted in such a case when verification form is filled, employer may ignore lapse of suppression or submitting false information in appropriate cases on due consideration of various aspects. No doubt about it that once verification form requires certain information to be it correctly and furnish~d, declarant is duty bound to furnish any suppression of material facts or submitting false information, may by itself lead to termination of bis services or cancellation of candidature in an appropriate case. However, in a criminal case incumbent bas not been acquitted and case is pending trial, employ~r may well be justified in not appointing such an incumbent or in terminating the services as conviction ultimately may render him unGuitable for; job and employer is not supposed to wait till outcome of criminal case. In such a case non-disclosure or submitting false information would assume significance and that by itself may be ground for employer to cancel candidature or to terminate services. [Paras 23 and 24) (490-D-H; 491-AJ 3; The fraud and misrepresentation vitiates a transaction and in case employment has been obtained on the basis of forged documents, the incumbent may be terminated without holding any inquiry, however in ease employee is confirmed, holding a civil post and has protection of Article 311(2), due inquiry has to be held before terminating the services. The case of obtaining a1>1>ointment on the basis of forged documents has the effect on very eligibility of incumbent for the job in question, however, verification of antecedents is different aspect as to his fitness otherwise for the post in question. Verification of character and A B c D E F G H AVTAR SINGH v. UNION OF INDIA & ORS. 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. [Paras 25 and 26] J491-B-E] ·

#4. Suppression of 'material' information presupposes that what is suppressed that 'matters' not every technical or trivial matter. The employer has to act 011 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. What yardstick is to be applied has to depend upon the nature of 11ost, 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, imp~ct of suppression on suitability has to be considered by concerned authorities considering post/nature of duties/services and power bas to be exercised on due consideration of various aspects. 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 canc~lling candidature or discl1arging an employee from service; (Paras 27, 28 and 29) (491-F-H, 492-A-BJ Union of India & Ors. v. M Bhaskaran (1995) Supp 4 SCC 100: 1995 (4) Suppl. SCR 526 - Distinguished. Secretary, Department of Home Secy:, A.P. & Ors. l( B. Chinnam Naidu (2005) 2 SCC 746: 2005 (1) SCR 1147; R. Radhakrishnan v. Director General of Police & Ors. (2008) 1 SCC 660: 2007 (11) SCR 456; Union of India & Ors. v. Bipad Bhanjan Gayen (2008) 11 SCC 314: 2008 (8) SCR 99; A.P. Public Service Co111111issio11 v. Kone ti Venkateswarulu & Ors. (2005) 7 SCC 177: 2005 (2) Suppl. SCR 1050; Kamal Nayan Mishra v. State of 449 A 8 c D E F G H 450 SUPREME COURT REPORTS [2016) 7 S.C.R. Madhya Pradesh & Ors. (2010) 2 SCC 169: 2009 (16) SCR 237; Ram Kumar v. State of Utttar Pradesh & ·Ors. (2011) 14 SCC 709: 2011 (10) SCR 506; State of Madhya Pradesh v. Ramashanker Raghuvanshi & Am: (1983) 2 SCC 145:1983 (2) SCR 393; S. Vasudavan N'lir v. Director of Vikram Sarabhai Space Centre & Ors. (1988) Supp SCC 795; Delhi Administration through its Chief Secretary & Ors. v. Sushi! Kumar (1996) 11 sec 605: 1996 (7) Suppl. SCR 199; Commissioner of Police, Delhi & Am: v. Dhaval Singh (1999) 1 SCC 246; Kendriya Vidyalaya Sangathan & Ors. v. Ram Ratan Yadav (2003) 3 SCC 437: 2003 (2) SCR 361; Secretary, Depart111e11t of Home Secy., A.P. & Ors. v. B. Chinnam Naidu (2005) 2 SCC 746: 2005 (1) SCR 1147; A.P. Public Service Commission v. Koneti Venkateswarulu & Ors. (2005) 7 SCC 177: 2005 (2) Suppl. SCR 1050; Kamal Nayan Mishra v. State of Madhya Pradesh·& Ors. (2010) 2 SCC 169: 2009 (16) SCR 237; Daya Shankar Yadav v. Union of India & Ors. (2010) 14 SCC 103: 2010 (13) SCR 1076; State of West Bengal & Ors. v. SK. Nazrul Islam (2011) 10 SCC 184: 2011 (12) SCR 1033; Co111111issio11er of Police & Ors. v. Sandeep Kumar (2011) 4 SCC 644: 2011 (3) SCR 964 - relied on.