Ratan Kumar Rai v. State Of U.P. And 5 Others

#7. Learned counsel for petitioner submits that order impugned in present writ petition is manifestly illegal and arbitrary. He has invited the attention of Court to the judgement and order dated 08.12.2021 which is on record as Annexure 4 to present writ petition and on basis thereof he submits that at the time of passing of impugned order dated 26.04.2022, petitioner had already been acquitted in the criminal case pending against him. As such the same shall not be a hurdle in the apointment of petitioner. Respondent5 has rejected the candidature /appointment of petitioner simply on the ground of pendency of criminal case against petitioner. On the aforesaid premise learned counsel for petitioner submits that impugned order dated 26.04.2022 is liable to be quashed by this Court as no criminal case is now pending against the petitioner. 8 . Attention of the Court was then invited to the judgement of Supreme Court in Avtar Singh Vs. Union of Inidia and Others, (2016) 8 SCC 471 wherein Court has dealt with the issues regarding the effect of a criminal case pending against selected candidate and non disclosure of same in the affidavit submitted by the selected candidate. Apex Court has also laid down certain guide lines in the matter. Paragraph 38 of the said judgement along with it's sub paragraphs are relevant for the controversy in hand. As such same are extracted herein under:- "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 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. On the aforesaid premise, the learned Counsel for petitioner submits that in view of the directions contained in paragraphs

38.5 to 38.10 of the judgement in Avtar Singh (Supra), the competent authority was under a legal obligation to consider the suitability of petitioner inspite of the fact that a criminal case was registered against him and his subsequent acquittal in the said criminal case. However, no such exercise was undertaken by competent authority. It is thus urged that order impugned in present writ petition , therefore, cannot be sustained and liable to be quashed by this Court.

#10. Learned Standing Counsel representing the respondents on the other hand has opposed the present writ petition. He, submits that in view of the fact that petitioner was involved in a criminal case, it cannot be said that petitioner has no criminal antecedents. Petitioner was selected for a disciplined force. Therefore, by virtue of the very nature of service, he was about to enter a person with criminal antecedents, cannot be inducted in Police Force. As such no illegality has been committed by the authority concerned in rejecting the candidature/Selection of the petitioner. He, therefore, submits that present writ petition is liable to be dismissed.

#11. Having heard the learned counsel for petitioner, the learned Standing counsel and upon perusal of record as well as the judgement of Apex Court in Avtar Singh (Supra), this Court finds that it was obligatory upon competent authority to decide the impact of the criminal case registered against petitioner and subsequent acquittal of petitioner in aforementioned criminal case on the suitability of petitioner for offering him employment in the Police force. No exercise in this regard has been undertaken by competent authority. To the contrary competent authority has recorded a bald conclusion that on account of criminal case having been registered against petitioner coupled with the fact that same was not disclosed by petitioner in the notary afidavit filed by him, he cannot be offered appointment in the Police force. Admittedly, petitioner has been acquitted in the criminal case registered against him. The criminal case registered against petitioner does not involve an offence of moral turpitude or serious offence but of a trivial nature. Competent authority has not adverted to aforesaid aspect of the matter either.

#12. In view of the above, present writ petition succeeds and is allowed. The impugned order dated 26.04.2022, passed by respondent-5, Commandant 39the Battalion, P.A.C., Mirzapur is hereby quashed.

#13. The matter shall stand remanded to the competent authority, who shall pass a fresh order, in the light of observations made herein above as well as the judgement of Apex Court in Avtar Singh (Supra) within a period of three weeks from the date of presentation of a certified copy of this order.

#14. No costs. Order Date :- 17.5.2022 YK KUMAR Reason: Location: High Court of Judicature at Allahabad