employment has been obtained on the basis of forged documents, as observed in
M. Bhaskaran’s case (supra), it has also been observed in the reference order that if
an appointment was procured fraudulently, the incumbent may be terminated
without holding any inquiry, however we add a rider that 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. The case of obtaining appointment
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. The fraudulently obtained appointment
orders are voidable at the option of employer, however, question has to be
determined in the light of the discussion made in this order on impact of
suppression or submission of false information.
26. 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.
27. 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.
28. 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 concerned authorities
considering post/nature of duties/services and power has to be exercised on due
consideration of various aspects.
29. 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.
30. 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:
(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.
(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.
(3) The employer shall take into consideration the Government
orders/instructions/rules, applicable to the employee, at the time of taking
the decision.
(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 recourse
appropriate to the case may be adopted : -
(a) 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.
(b) Where conviction has been recorded in case which is not trivial
in nature, employer may cancel candidature or terminate
services of the employee.
(c) 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.
(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.
(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.
(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.
(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.
(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.
(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.
(11) Before a person is held guilty of suppressio veri or suggestio falsi,
knowledge of the fact must be attributable to him.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITIOIN [C] NO.20525/2011
Avtar Singh … Petitioner
Vs.
Union of India & Ors. … Respondents
[With SLP [C] Nos.4757/2014 and 24320/2014]
Dated:July 21, 2016.
ARUN MISHRA, J.
1. The cases have been referred to for resolving the conflict of opinion in the
various decisions of Division Benches of this Court as noticed by this Court in
Jainendra Singh v. State of U.P. through Principal Secretary, Home & Ors. (2012)
8 SCC 748. The Court has considered the cleavage of opinion in various decisions
on the question of suppression of information or submitting false information in
the verification form as to the question of having been criminally prosecuted,
arrested or as to pendency of a criminal case. A Division Bench of this Court has
expressed the opinion on merits while referring the matter as to the variousPage 2
2
principles to be borne in mind before granting relief to an aggrieved party.
Following is the relevant observation made by a Division Bench of this Court :
“29. As noted by us, all the above decisions were rendered by a
Division Bench of this Court consisting of two Judges and
having bestowed our serious consideration to the issue, we
consider that while dealing with such an issue, the Court will
have to bear in mind the various cardinal principles before
granting any relief to the aggrieved party, namely:
29.1. Fraudulently obtained orders of appointment could be
legitimately treated as voidable at the option of the employer or
could be recalled by the employer and in such cases merely
because the respondent employee has continued in service for a
number of years, on the basis of such fraudulently obtained
employment, cannot get any equity in his favour or any
estoppel against the employer.
29.2. Verification of the character and antecedents is one of the
important criteria to test whether the selected candidate is
suitable to the post under the State and on account of his
antecedents the appointing authority if finds it not desirable to
appoint a person to a disciplined force can it be said to be
unwarranted.
29.3. When appointment was procured by a person on the basis
of forged documents, it would amount to misrepresentation and
fraud on the employer and, therefore, it would create no equity
in his favour or any estoppel against the employer while
resorting to termination without holding any inquiry.
29.4. A candidate having suppressed material information
and/or giving false information cannot claim right to continue
in service and the employer, having regard to the nature of
employment as well as other aspects, has the discretion to
terminate his services.
29.5. The purpose of calling for information regarding
involvement in any criminal case or detention or conviction is
for the purpose of verification of the character/antecedents at
the time of recruitment and suppression of such material
information will have a clear bearing on the character and
antecedents of the candidate in relation to his continuity in
service.
29.6. The person who suppressed the material information
and/or gives false information cannot claim any right for
appointment or continuity in service.
29.7. The standard expected of a person intended to serve in
uniformed service is quite distinct from other services and,
therefore, any deliberate statement or omission regarding a vital
information can be seriously viewed and the ultimate decision
of the appointing authority cannot be faulted.
29.8. An employee on probation can be discharged from service
or may be refused employment on the ground of suppression of
material information or making false statement relating to his
involvement in the criminal case, conviction or detention, even
if ultimately he was acquitted of the said case, inasmuch as
such a situation would make a person undesirable or unsuitable
for the post.
29.9. An employee in the uniformed service presupposes a
higher level of integrity as such a person is expected to uphold
the law and on the contrary such a service born in deceit and
subterfuge cannot be tolerated.
29.10. The authorities entrusted with the responsibility of
appointing constables, are under duty to verify the antecedents
of a candidate to find out whether he is suitable for the post of a
constable and so long as the candidate has not been acquitted in
the criminal case, he cannot be held to be suitable for
appointment to the post of constable.
30. When we consider the above principles laid down in the
majority of the decisions, the question that looms large before
us is when considering such claim by the candidates who
deliberately suppressed information at the time of recruitment,
can there be different yardsticks applied in the matter of grant
of relief.
31. Though there are very many decisions in support of the
various points culled out in the above paragraphs, inasmuch as
we have noted certain other decisions taking different view of
coordinate Benches, we feel it appropriate to refer the
abovementioned issues to a larger Bench of this Court for an
authoritative pronouncement so that there will be no conflict of
views and which will enable the courts to apply the law
uniformly while dealing with such issues.”
2. This Court while referring the matter had expressed the opinion that in case
an appointment order has been secured fraudulently, the appointment is voidable at
the option of the employer and the employee cannot get any equity in his favour
and no estoppel is created against the employer only by the fact that the employee
has continued in service for a number of years. It has been further observed that if
appointment is secured on forged documents, it would amount to misrepresentation
and fraud. The employer has a right to terminate the services on suppression of
important information or giving false information, having regard to nature of
employment. Verification of character and antecedents is important if the employer
has found an incumbent to be undesirable for appointment to a disciplined force. It
cannot be said to be unwarranted. The Court thus further opined that suppression of
material information necessary for verification of character/antecedents will have a
clear bearing on character and antecedents of a candidate in relation to his
continuity in service and such a person cannot claim a right for appointment or
continuity in service. The Bench was of the view that in uniformed service,
suppression or false information can be viewed seriously as it requires higher level
of integrity and the employer is supposed to find out before an appointment is
made that criminal case has come to an end and pendency of a case would serve as
a bar for appointment and in such cases of suppression whether different yardsticks
can be applied as noted in the various decisions of this Court. The question which
has been referred to arises frequently and there are catena of decisions taking one
view or the other on the facts of the case. It would be appropriate to refer to the
various decisions rendered by this Court; some of them have been referred to in the
impugned order.
3. It cannot be disputed that the whole idea of verification of character and
antecedents is that the person suitable for the post in question is appointed. It is one
of the important criteria which is necessary to be fulfilled before appointment is
made. An incumbent should not have antecedents of such a nature which may
adjudge him unsuitable for the post. Mere involvement in some petty kind of case
would not render a person unsuitable for the job. Way back in the year 1983, in
State of Madhya Pradesh v. Ramashanker Raghuvanshi & Anr. (1983) 2 SCC 145,
where a teacher was employed in a municipal school which was taken over by the
Government and who was absorbed in Government service in 1972 subject to
verification of antecedents and medical fitness. The termination order was passed
on the basis of a report made by the Superintendent of Police to the effect that the
respondent was not a fit person to be entertained in Government service, as he had
taken part in ‘RSS and Jan Sangh activities’. There was no allegation of
involvement in subversive activities. It was held that such activities were not likely
to affect the integrity of individual’s service. To hold otherwise would be to
introduce ‘McCarthyism’ into India which is not healthy to the philosophy of our
Constitution. It was observed by this Court that most students and most youngmen
who take part in political activities and if they do get involved in some form of
agitation or the other, is it to be to their ever lasting discredit ? Sometimes they feel
strongly on injustice and resist. They are sometimes pushed into the forefront by
elderly persons who lead and mislead them. Should all these young men be
debarred from public employment ? Is Government service such a heaven that only
angels should seek entry into it ? This Court has laid down that the whole business
of seeking Police report about the political belief and association of the past
political activities of a candidate for public employment is repugnant to the basic
rights guaranteed by the Constitution. This Court has considered in Ramashanker
Raghuvanshi’s case (supra) the decision in Garner v. Board of Public Works 341
US 716 thus :
“5. In another loyalty oath case, Garner v. Board of Public
Works 341 US 716, Douglas, J. had this to say :
Here the past conduct for which punishment is exacted
is single – advocacy within the past five years of the
overthrow of the Government by force and violence. In the
other cases the acts for which Cummings and Garland stood
condemned covered a wider range and involved some
conduct which might be vague and uncertain. But those
differences, seized on here in hostility to the constitutional
provisions, are wholly irrelevant. Deprivation of a man’s
means of livelihood by reason of past conduct, not subject to
this penalty when committed, is punishment whether he is a
professional man, a day laborer who works for private
industry, or a Government employee. The deprivation is
nonetheless unconstitutional whether it be for one single
past act or a series of past acts …
Petitioners were disqualified from office not for what
they are today, not because of any program they currently
espouse (cf. Gerende v. Board of Supervisors 341 US 56),
not because of standards related to fitness for the office, cf
Dent v. West Virginia 129 US 114; Hawker v. New York 170
US 189, but for what they once advocated …
6. In the same case, Frankfurter, J. observed :
The needs of security do not require such curbs on what
may well be innocuous feelings and associations. Such curbs
are indeed self-defeating. They are not merely unjustifiable
restraints on individuals. They are not merely productive of
an atmosphere or repression uncongenial to the spiritual
vitality of a democratic society. The inhibitions which they
engender are hostile to the best conditions for securing a
high-minded and high-spirited public service.
10. We are not for a moment suggesting that even after entry
into government service, a person may engage himself in
political activities. All that we say is that he cannot be turned
back at the very threshold on the ground of his past political
activities. Once he becomes a government servant, he becomes
subject to the various rules regulating his conduct and his
activities must naturally be subject to all rules made in
conformity with the Constitution.”
At the same time, this Court has also observed that after entry into Government
service, a person has to abide by the service rules in conformity with the
Constitution.
4. A 3-Judge Bench of this Court in T. S. Vasudavan Nair v. Director of Vikram
Sarabhai Space Centre & Ors. (1988) Supp SCC 795 had considered a case where
the employee had suppressed the fact that during emergency he had been convicted
in a case registered under the Defence of India Rules for having shouted slogans on
one occasion. This Court has laid down that cancelling the offer of appointment
due to such non-disclosure was illegal and the employer was directed to appoint
him as a Lower Division Clerk. Thus this Court has taken the view that
non-disclosure of aforesaid case was not a material suppression on the basis of
which employment could have been denied and the person adjudged unsuitable for
being appointed as an LDC. This Court has laid down thus :
“2. We have heard learned counsel for the parties. In the special
facts and circumstances of this case we feel that the appellant
should not have been denied the employment on the sole
ground that he had not disclosed that during emergency he had
been convicted under the Defence of India Rules for having
shouted slogans on one occasion. We, therefore, set aside the
judgment of the High Court and also the order dated August 1,
1983 cancelling the offer of appointment. The respondents shall
issue the order of appointment to the appellant within three
months appointing him as a Lower Division Clerk, if he is not
otherwise disqualified, with effect from the date on which he
assumes duty. It is open to the respondents to employ the
appellant at any place of their choice. The appeal is disposed of
accordingly.”
5. In Union of India & Ors. v. M. Bhaskaran (1995) Supp 4 SCC 100, it was
held that if some persons have procured employment in Railway on the basis ofPage 9
9
bogus and forged casual labourer service cards, they were rightly held guilty of
misrepresentation and fraud. Mere long continuance of such employment could not
create any equity in their favour or estoppel against the employer. The question
was left open whether after obtaining employment on the basis of bogus and forged
casual labourer service cards was covered under Rule 31(1)(i) and (iii) of the
Railway Services (Conduct) Rules, 1966. It was held that the employment
procured by fraud is voidable at the option of the employer and employee cannot
plead estoppel. This Court has laid down thus :
“6. It is not necessary for us to express any opinion on the
applicability of Rule 3(1)(i) and (iii) on the facts of the present
cases for the simple reason that in our view the railway
employees concerned, respondents herein, have admittedly
snatched employment in railway service, maybe of a casual
nature, by relying upon forged or bogus casual labourer service
cards. The unauthenticity of the service cards on the basis of
which they got employment is clearly established on record of
the departmental enquiry held against the employees concerned.
Consequently, it has to be held that the respondents were guilty
of misrepresentation and fraud perpetrated on the
appellant-employer while getting employed in railway service
and had snatched such employment which would not have been
made available to them if they were not armed with such bogus
and forged labourer service cards. Learned counsel for the
respondents submitted that for getting service in railway as
casual labourers, it was strictly not necessary for the
respondents to rely upon such casual service cards. If that was
so there was no occasion for them to produce such bogus
certificates/service cards for getting employed in railway
service. Therefore, it is too late in the day for the respondents to
submit that production of such bogus or forged service cards
had not played its role in getting employed in railway service. It
was clearly a case of fraud on the appellant-employer. If once
such fraud is detected, the appointment orders themselves
which were found to be tainted and vitiated by fraud and acts of
cheating on the part of employees, were liable to be recalled
and were at least voidable at the option of the employer
concerned. This is precisely what has happened in the present
case. Once the fraud of the respondents in getting such
employment was detected, the respondents were proceeded
against in departmental enquiries and were called upon to have
their say and thereafter have been removed from service. Such
orders of removal would amount to recalling of fraudulently
obtained erroneous appointment orders which were avoided by
the employer-appellant after following the due procedure of law
and complying with the principles of natural justice. Therefore,
even independently of Rule 3(1)(i) and (iii) of the Rules, such
fraudulently obtained appointment orders could be legitimately
treated as voidable at the option of the employer and could be
recalled by the employer and in such cases merely because the
respondent-employees have continued in service for a number
of years on the basis of such fraudulently obtained employment
orders cannot create any equity in their favour or any estoppel
against the employer. In this connection we may usefully refer
to a decision of this Court in Distt. Collector & Chairman,
Vizianagaram Social Welfare Residential School Society v. M.
Tripura Sundari Devi (1990) 3 SCC 655.. In that case Sawant,
J. speaking for this Court held that when an advertisement
mentions a particular qualification and an appointment is made
in disregard of the same, it is not a matter only between the
appointing authority and the concerned appointee. The
aggrieved are all those who had similar or even better
qualifications than the appointee or appointees but who had not
applied for the post because they did not possess the
qualifications mentioned in the advertisement. It amounts to a
fraud on public to appoint persons with inferior qualifications in
such circumstances unless it is clearly stated that the
qualifications are relaxable. No court should be a party to the
perpetuation of the fraudulent practice. It is of course true as
noted by the Tribunal that the facts of the case in the aforesaid
decision were different from the facts of the present case. And it
is also true that in that case pending the service which was
continued pursuant to the order of the Tribunal the candidate
concerned acquired the requisite qualification and hence his
appointment was not disturbed by this Court. But that is neither
here nor there. As laid down in the aforesaid decision, if by
committing fraud any employment is obtained, such a
fraudulent practice cannot be permitted to be countenanced by a
court of law. Consequently, it must be held that the Tribunal had
committed a patent error of law in directing reinstatement of the
respondent-workmen with all consequential benefits. The
removal orders could not have been faulted by the Tribunal as
they were the result of a sharp and fraudulent practice on the
part of the respondents. Learned counsel for the respondents,
however, submitted that these illiterate respondents were
employed as casual labourers years back in 1983 and
subsequently they have been given temporary status and,
therefore, after passage of such a long time they should not be
thrown out of employment. It is difficult to agree with this
contention. By mere passage of time a fraudulent practice
would not get any sanctity. The appellant authorities having
come to know about the fraud of the respondents in obtaining
employment as casual labourers, started departmental
proceedings years back in 1987 and these proceedings have
dragged on for a number of years. Earlier, removal orders of the
respondents were set aside by the Central Administrative
Tribunal, Madras Bench and proceedings were remanded and
after remand, fresh removal orders were passed by the appellant
which have been set aside by the Central Administrative
Tribunal, Ernakulam Bench and which are the subject-matter of
the present proceedings. Therefore, it cannot be said that the
appellants are estopped from recalling such fraudulently
obtained employment orders of the respondents subject of
course to following due procedure of law and in due
compliance with the principles of natural justice, on which
aspect there is no dispute between the parties. If any lenient
view is taken on the facts of the present case in favour of the
respondents, then it would amount to putting premium on
dishonesty and sharp practice which on the facts of the present
cases cannot be permitted.”
It is apparent from the aforesaid discussion that the case of M. Bhaskaran
(supra) did not relate at all to the suppression of material facts or submitting false
information but pertained to obtaining employment on the basis of forged or bogus
casual labourer service cards. The decision in M. Bhaskaran (supra) is quite
distinguishable. It has a different field to operate. Though the principles laid down
therein may be attracted to some extent in a given case in a particular factual
scenario but are not of general application in the cases in which the question
involved is with which we are presently dealing with.
6. The next decision mentioned by the Division Bench in the order of reference
is in Delhi Administration through its Chief Secretary & Ors. v. Sushil Kumar
(1996) 11 SCC 605 in which appointment was denied to an incumbent who was
duly selected for the post of Constable in Police service subject to verification of
character and antecedents. On verification of his antecedents it was found that he
was involved in a criminal case under sections 304, 324/34 and 324 IPC. The
incumbent was appointed in Delhi Police service in the year 1990. On character
verification, his name was rejected. The tribunal allowed the application and
directed the appointment since employee had been acquitted in the said criminal
case. It was held by this Court that mere acquittal in the criminal case was not
enough once it was found that it was not desirable to appoint such a person as a
Constable in the disciplined force. This Court opined that the view taken by the
employer in the background of the case cannot be said to be unwarranted, though
he was discharged or acquitted. Antecedents of the incumbents could not be said to
be proper. The Court has held thus :
“3. This appeal by special leave arises from the order of the
Central Administrative Tribunal, New Delhi made on 6-9-1995
in OA No. 1756 of 1991. The admitted position is that the
respondent appeared for recruitment as a Constable in Delhi
Police Services in the year 1989-90 with Roll No. 65790.
Though he was found physically fit through endurance test,
written test and interview and was selected provisionally, his
selection was subject to verification of character and
antecedents by the local police. On verification, it was found
that his antecedents were such that his appointment to the post
of Constable was not found desirable. Accordingly, his name
was rejected. Aggrieved by proceedings dated 18-12-1990
culminating in cancellation of his provisional selection, he filed
OA in the Central Administrative Tribunal. The Tribunal in the
impugned order allowed the application on the ground that
since the respondent had been discharged and/or acquitted of
the offence punishable under Section 304 IPC, under Section
324 read with Section 34 IPC and under Section 324 IPC, he
cannot be denied the right of appointment to the post under the
State. The question is whether the view taken by the Tribunal is
correct in law? It is seen that verification of the character and
antecedents is one of the important criteria to test whether the
selected candidate is suitable to a post under the State. Though
he was found physically fit, passed the written test and
interview and was provisionally selected, on account of his
antecedent record, the appointing authority found it not
desirable to appoint a person of such record as a Constable to
the disciplined force. The view taken by the appointing
authority in the background of the case cannot be said to be
unwarranted. The Tribunal, therefore, was wholly unjustified in
giving the direction for reconsideration of his case. Though he
was discharged or acquitted of the criminal offences, the samePage 14
14
has nothing to do with the question. What would be relevant is
the conduct or character of the candidate to be appointed to a
service and not the actual result thereof. If the actual result
happened to be in a particular way, the law will take care of the
consequences. The consideration relevant to the case is of the
antecedents of the candidate. Appointing authority, therefore,
has rightly focussed this aspect and found it not desirable to
appoint him to the service.”
It is apparent that the background of the case was considered by the
employer in the case of Sushil Kumar (supra) and this Court has emphasized in the
aforesaid background that the decision of the employer was not unwarranted as the
incumbent was rightly not found desirable for appointment to the service. It was
not a case of suppression in the verification form. The decision does not deal with
the effect of suppression but the case has turned on the background of the facts of
the case in which the incumbent was involved as is apparent from the discussion
made by this Court in para 3 quoted above. Thus, it is apparent that the background
facts of the case have to be taken into consideration by the employer or court while
dealing with such matters.
7. Another decision of this Court which has been noted in the order is
Commissioner of Police, Delhi & Anr. v. Dhaval Singh (1999) 1 SCC 246. It was a
case pertaining to the verification or antecedents form in August, 1995 in which
pendency of criminal case was not mentioned but it was disclosed on 15.11.1995.
An application was submitted mentioning that he had inadvertently failed toPage 15
15
mention in the appropriate column regarding the pendency of the criminal case and
the latter may be treated as an information despite such disclosure before passing
an order of cancellation of candidature, was not taken into consideration by the
concerned employer. This Court has held that cancellation of the candidature of
Dhaval Singh was not appropriate. It was without proper application of mind and
without taking into consideration all relevant material. The tribunal has therefore
rightly set it aside. This Court has laid down thus :
“5. That there was an omission on the part of the respondent to
give information against the relevant column in the Application
Form about the pendency of the criminal case, is not in dispute.
The respondent, however, voluntarily conveyed it on
15-11-1995 to the appellant that he had inadvertently failed to
mention in the appropriate column regarding the pendency of
the criminal case against him and that his letter may be treated
as “information”. Despite receipt of this communication, the
candidature of the respondent was cancelled. A perusal of the
order of the Deputy Commissioner of Police cancelling the
candidature on 20-11-1995 shows that the information
conveyed by the respondent on 15-11-1995 was not taken note
of. It was obligatory on the part of the appellant to have
considered that application and apply its mind to the stand of
the respondent that he had made an inadvertent mistake before
passing the order. That, however, was not done. It is not as if
information was given by the respondent regarding the
inadvertent mistake committed by him after he had been
acquitted by the trial court — it was much before that. It is also
obvious that the information was conveyed voluntarily. In vain,
have we searched through the order of the Deputy
Commissioner of Police and the other record for any
observation relating to the information conveyed by the
respondent on 15-11-1995 and whether that application could
not be treated as curing the defect which had occurred in thePage 16
16
Form. We are not told as to how that communication was
disposed of either. Did the competent authority ever have a look
at it, before passing the order of cancellation of candidature?
The cancellation of the candidature under the circumstances
was without any proper application of mind and without taking
into consideration all relevant material. The Tribunal, therefore,
rightly set it aside. We uphold the order of the Tribunal, though
for slightly different reasons, as mentioned above.”
8. In Regional Manager, Bank of Baroda v. Presiding Officer, Central Govt.
Industrial Tribunal & Anr. (1999) 2 SCC 247, the respondent employee secured the
appointment on a clerical post concealing information of criminal prosecution
under section 307 IPC. Subsequent to his appointment, he was convicted by the
criminal court. After one year of the conviction, Bank issued a show cause notice
against the proposed termination of his service and for pendency of criminal
prosecution. After about one and a half years, second show-cause notice was issued
and after 1 year 8 months, the order of termination of services was passed. In the
appeal the employee was acquitted. This Court did not interfere under Article 136
of the Constitution in the decision of the tribunal. In the facts of the case, directing
reinstatement as punishment was found by the Labour Court to be an extreme
punishment and not warranted due to acquittal in the criminal case. At the same
time, it was made clear that the decision was rendered on the peculiar facts of the
case and will not be treated as a precedent in future. This Court has discussed the
matter thus :Page 17
17
“8. The facts which are well established on record and which
have weighed with us for coming to the aforesaid conclusion
may now be noted. It is true that the respondent made a wrong
statement while replying to Query 27 of the application form
that he had not been prosecuted at any time. It is equally true
that the Labour Court itself found that giving a false statement
should not be deemed to be such a grave misconduct which
may be visited with extreme punishment of termination from
service. However, it has also to be noted that the
appellant-Management while issuing show-cause notice for the
first time on 26-2-1980 has in terms noted in the said notice that
not only the criminal proceedings were pending but had
ultimately ended in conviction of the respondent. The appellant
itself thought it fit to await the decision of the criminal case
before taking any precipitate action against the respondent for
his misconduct. Thus, according to the respondent, this
suppression was not so grave as to immediately require the
appellant to remove the respondent from service. On the
contrary, in its wisdom, the appellant thought it fit to await the
decision of the criminal proceedings. This may be presumably
so because the charge against the respondent was that he was
alleged to have involved himself in an offence under Section
307 of the Indian Penal Code. It was not an offence involving
cheating or misappropriation which would have a direct impact
on the decision of the appointing Bank whether to employ such
a person at all. We may not delve further into the liberal
approach of the appellant itself when it did not think it fit to
immediately take action against the respondent but wait till the
decision of the criminal case. Be that as it may, once the
Sessions Court convicted the respondent, the appellant issued
the impugned notice dated 26-2-1980. It can therefore be safely
presumed that if the Sessions Court itself had acquitted the
respondent, the appellant would not have decided to terminate
his services on this ground. So far as the notice dated 26-2-1980
is concerned, in the reply to the said show-cause notice filed by
the respondent, he had mentioned that an appeal was pending in
the High Court against the said conviction. In that view of the
matter, once the High Court ultimately acquitted the respondent
for any reason, with which strictly we are not concerned, the net
result that follows is that by the time the Labour Court decidedPage 18
18
the matter, the respondent was already acquitted and hence
there remained no real occasion for the appellant to pursue the
termination order. Consequently, that was a sufficient ground
for not visiting the respondent with the extreme punishment of
termination of service. But even that apart, though the
conviction was rendered by the Sessions Court on 20-2-1979,
the show-cause notice for the first time was issued by the
appellant after one year, i.e., on 26-2-1980 and thereafter, the
termination order was passed on 18-4-1983. That itself by the
passage of time, created a situation wherein the original
suppression of involvement of the respondent in the prosecution
for an offence under Section 307 of the Indian Penal Code did
not remain so pernicious a misconduct on his part as to visit
him with the grave punishment of termination from service on
these peculiar facts of the case and especially when the Labour
Court also did not award any back wages to the respondent
from 1983 till the respondent’s reinstatement by its order dated
29-9-1995 and one month thereafter and when the High Court
also did not think it fit to interfere under Article 226 of the
Constitution of India on the peculiar facts of this case. In our
opinion, the interest of justice will be served by maintaining the
order passed by the Labour Court and as confirmed by the High
Court subject to a slight modification that the respondent may
be treated to be a fresh recruit from the date when he was
exonerated by the High Court, i.e., from 13-1-1988 which can
be treated as 1-1-1988 for the sake of convenience. It is ordered
accordingly. From 1-1-1988, the respondent will be treated to
have been reinstated into the services of the Bank on the basis
that he will be treated as a fresh recruit from that date and will
be entitled to be placed at the bottom of the revised scale of pay
for Clerks and will also be entitled to other allowances which
were available in the cadre of Clerks in the Bank’s service. The
respondent will be entitled to back wages with effect from
1-11-1995, i.e., from the date when the Labour Court awarded
the reinstatement of the respondent. It also directed that the
appellant-Bank will work out appropriate back wages payable
to the respondent from 1-11-1995 in the time-scale of Clerks as
available from 1-1-1988, treating his services to be continuous
from that date and accordingly, working out of his salary and
emoluments on a notional basis with the usual increments fromPage 19
19
1-1-1988 and the actual arrears of pay and other permissible
emoluments from 1-11-1995 till reinstatement of the respondent
by the appellant. All such arrears will be paid to the respondent
within a period of four weeks from 1-3-1999. The respondent
who is present before us takes notice of this order and his
counsel on his instructions states that the respondent will report
for duty pursuant to the present order before the Regional
Manager, Bank of Baroda, Northern Zone, Meerut on 1-3-1999.
Learned counsel for the appellant agrees to the said course
being adopted. The appeal will stand dismissed subject to the
aforesaid modifications. IA No. 2 for passing order under
Section 17-B of the Industrial Disputes Act, 1947 will not
survive in view of the present order. We make it clear that this
order of ours is rendered on the peculiar facts and
circumstances of the case as mentioned earlier and will not be
treated as a precedent in future. There would be no order as to
costs.”
The Court has taken note of the fact that it was not an offence involving
cheating or misappropriation which would have direct impact on the decision of
the appointing Bank. By the time the Labour Court decided the matter the
employee was acquitted by the High Court. The passage of time created a situation
wherein the original suppression or involvement of the respondent in the
prosecution for an offence under section 307 IPC did not remain so pernicious or
misconduct to visit him punishment of termination. In the peculiar facts this Court
has not interfered but at the same time laid down that the decision would not be
treated as a precedent in future.Page 20
20
9. In Kendriya Vidyalaya Sangathan & Ors. v. Ram Ratan Yadav (2003) 3 SCC
437, a question arose as to suppression of material information relating to character
and antecedents. In clause 4 of the offer of appointment offered to Physical
Education Teacher, it was mentioned that suppression of any information will be
considered a major offence for which the punishment may extend to dismissal from
service. Suppression of information was held to be material as a criminal case
under sections 323, 341, 294, 506-B read with section 34 IPC was pending on the
date when the respondent filled the attestation form. This Court has observed that
suppression of material information or making a false statement has a clear bearing
on the character and antecedents in relation to his continuance in service. It was
also held that mere fact that the case was withdrawn by the State Government was
not much material. This Court has discussed the matter thus :
“10. The memorandum dated 7-4-1999/8-4-1999 terminating
the services of the respondent refers to columns 12 and 13 of
the attestation form, the criminal case registered against the
respondent on the basis of the report given to the appellants by
IG, Police, suppression of material information by the
respondent while submitting attestation form and violating the
clause stipulated under para 9 of the offer of appointment issued
to him, OM dated 1-7-1971 of the Cabinet Secretary,
Department of Personnel, New Delhi, in which it is clearly
mentioned that furnishing of false information or suppression of
factual information in the attestation form would be
disqualification and is likely to render the candidate unfit for
employment under the Government and that as per clause 4 of
the offer of appointment, the respondent was on probation for aPage 21
21
period of two years and that his services were liable to be
terminated by one month’s notice.
11. It is not in dispute that a criminal case registered under
Sections 323, 341, 294, 506-B read with Section 34 IPC was
pending on the date when the respondent filled the attestation
form. Hence, the information given by the respondent as against
columns 12 and 13 as “No” is plainly suppression of material
information and it is also a false statement. Admittedly, the
respondent is holder of BA, BEd and MEd degrees. Assuming
even his medium of instruction was Hindi throughout, no
prudent man can accept that he did not study English language
at all at any stage of his education. It is also not the case of the
respondent that he did not study English at all. If he could
understand columns 1-11 correctly in the same attestation form,
it is difficult to accept his version that he could not correctly
understand the contents of columns 12 and 13. Even otherwise,
if he could not correctly understand certain English words, in
the ordinary course he could have certainly taken the help of
somebody. This being the position, the Tribunal was right in
rejecting the contention of the respondent and the High Court
committed a manifest error in accepting the contention that
because the medium of instruction of the respondent was Hindi,
he could not understand the contents of columns 12 and 13. It is
not the case that columns 12 and 13 are left blank. The
respondent could not have said “No” as against columns 12 and
13 without understanding the contents. Subsequent withdrawal
of criminal case registered against the respondent or the nature
of offences, in our opinion, were not material. The requirement
of filling columns 12 and 13 of the attestation form was for the
purpose of verification of character and antecedents of the
respondent as on the date of filling and attestation of the form.
Suppression of material information and making a false
statement has a clear bearing on the character and antecedents
of the respondent in relation to his continuance in service.
12. The object of requiring information in columns 12 and
13 of the attestation form and certification thereafter by the
candidate was to ascertain and verify the character and
antecedents to judge his suitability to continue in service. A
candidate having suppressed material information and/or giving
false information cannot claim right to continue in service. ThePage 22
22
employer having regard to the nature of the employment and all
other aspects had the discretion to terminate his services, which
is made expressly clear in para 9 of the offer of appointment.
The purpose of seeking information as per columns 12 and 13
was not to find out either the nature or gravity of the offence or
the result of a criminal case ultimately. The information in the
said columns was sought with a view to judge the character
and antecedents of the respondent to continue in service or not.
The High Court, in our view, has failed to see this aspect of the
matter. It went wrong in saying that the criminal case had been
subsequently withdrawn and that the offences, in which the
respondent was alleged to have been involved, were also not of
serious nature. In the present case the respondent was to serve
as a Physical Education Teacher in Kendriya Vidyalaya. The
character, conduct and antecedents of a teacher will have some
impact on the minds of the students of impressionable age. The
appellants having considered all the aspects passed the order of
dismissal of the respondent from service. The Tribunal after due
consideration rightly recorded a finding of fact in upholding the
order of dismissal passed by the appellants. The High Court
was clearly in error in upsetting the order of the Tribunal. The
High Court was again not right in taking note of the withdrawal
of the case by the State Government and that the case was not
of a serious nature to set aside the order of the Tribunal on that
ground as well. The respondent accepted the offer of
appointment subject to the terms and conditions mentioned
therein with his eyes wide open. Para 9 of the said
memorandum extracted above in clear terms kept the
respondent informed that the suppression of any information
may lead to dismissal from service. In the attestation form, the
respondent has certified that the information given by him is
correct and complete to the best of his knowledge and belief; if
he could not understand the contents of columns 12 and 13, he
could not certify so. Having certified that the information given
by him is correct and complete, his version cannot be accepted.
The order of termination of services clearly shows that there
has been due consideration of various aspects. In this view, the
argument of the learned counsel for the respondent that as per
para 9 of the memorandum, the termination of service was not
automatic, cannot be accepted.”Page 23
23
It is clear from the decision in Ram Ratan Yadav (supra) that besides
considering the effect of suppression, this Court has observed that having regard to
the nature of employment and various aspects, the employer has the discretion to
terminate his services as provided in the order of appointment. It was also held that
the involvement in the criminal case would have some impact on the minds of
students of impressionable age. This Court has further observed that the order of
termination of service shows that there had been due consideration of various
aspects by the concerned authority while passing the order of termination. It is
clear from the decision in Ram Ratan (supra) also that there is a discretion with the
employer to terminate the services. Character, conduct and antecedents do have
some impact on the nature of employment and there has to be due consideration of
various aspects. Thus, it follows that merely because there is a power to terminate
services or cancellation of offer of appointment, it does not follow that the 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.
10. In Secretary, Department of Home Secy., A.P. & Ors. v. B. Chinnam Naidu
(2005) 2 SCC 746, the case pertained to suppression of material information and/or
giving false information in the attestation form. In the attestation form thePage 24
24
respondent had not mentioned about his arrest and pendency of a case against him.
The tribunal held that the employee had suppressed material information while
filling up the attestation form and upheld the order of termination. The High Court
set aside the order of the tribunal holding that the employer was not justified in
denying appointment to the respondent. This Court has noted that as per the
relevant column of the attestation form the candidate was required to indicate
whether he had ever been convicted by a court of law or detained under any
State/Central preventive detention laws. He was not required to indicate whether
he had been arrested in any case or any case was pending against him. In view of
the relevant column in the form it could not be said that the respondent had made
false declaration or had suppressed material information. As such this Court held
that the action of the employer in not permitting the respondent to join the training
due to suppression of truth in the attestation form, was not sustainable. This Court
observed that the requirement in the present case was “conviction” and not
“prosecution”. This Court has held thus :
“8. In order to appreciate the rival submissions it is necessary to
take note of column 12 of the attestation form and column 3 of
the declaration. The relevant portions are quoted below:
“Column 12.—Have you ever been convicted by a court of law
or detained under any State/Central preventive detention laws
for any offence whether such conviction sustained in court of
appeal or set aside by the appellate court if appealed against.”Page 25
25
“Column 3.—I am fully aware that furnishing of false
information or suppression of any actual information in the
attestation form would be a disqualification and is likely to
render me unfit for employment under the Government.
9. A bare perusal of the extracted portions shows that the
candidate is required to indicate as to whether he has ever been
convicted by a court of law or detained under any State/Central
preventive detention laws for any offences whether such
conviction is sustained or set aside by the appellate court, if
appealed against. The candidate is not required to indicate as to
whether he had been arrested in any case or as to whether any
case was pending. Conviction by a court or detention under any
State/Central preventive detention laws is different from arrest
in any case or pendency of a case. By answering that the
respondent had not been convicted or detained under preventive
detention laws it cannot be said that he had suppressed any
material fact or had furnished any false information or
suppressed any information in the attestation form to incur
disqualification. The State Government and the Tribunal
appeared to have proceeded on the basis that the respondent
ought to have indicated the fact of arrest or pendency of the
case, though column 12 of the attestation form did not require
such information being furnished. The learned counsel for the
appellants submitted that such a requirement has to be read into
an attestation form. We find no reason to accept such
contention. There was no specific requirement to mention as to
whether any case is pending or whether the applicant had been
arrested. In view of the specific language so far as column 12 is
concerned the respondent cannot be found guilty of any
suppression.”
11. This Court in R. Radhakrishnan v. Director General of Police & Ors. (2008)
1 SCC 660 considered a case where the appellant intended to obtain appointment
in police force. Application for appointment and the verification roll were both in
Hindi and also in English. The application was filed for appointment to the post ofPage 26
26
a Fireman on 5.1.2000. He was involved in the criminal case which occurred on
15.4.2000 under section 294(b) IPC. He was released on bail and was acquitted of
the said charge on 25.9.2000. However his services were dispensed with on the
ground of suppression of pendency of the criminal case. This Court upheld the
order and had held thus :
“10. Indisputably, the appellant intended to obtain appointment
in a uniformed service. The standard expected of a person
intended to serve in such a service is different from the one of a
person who intended to serve in other services. Application for
appointment and the verification roll were both in Hindi as also
in English. He, therefore, knew and understood the implication
of his statement or omission to disclose a vital information. The
fact that in the event such a disclosure had been made, the
authority could have verified his character as also suitability of
the appointment is not in dispute. It is also not in dispute that
the persons who had not made such disclosures and were, thus,
similarly situated had not been appointed.”
In R. Radhakrishnan (supra) this Court had taken note of the decision in
Sushil Kumar (supra) in which the background facts of the case in which the
employee was involved were considered, and the antecedents were not found good.
12. In Union of India & Ors. v. Bipad Bhanjan Gayen (2008) 11 SCC 314, the
facts indicate that the respondent was selected for training as a Constable in
Railway Protection Force, and pending verification of Form 12, he was sent for
training. It was found on verification that he had been involved in FIR 20/1993 for
an offence punishable under section 376 IPC and another case under section 417Page 27
27
was pending in the court. On 10.7.1995 his services were terminated with
immediate effect because of his involvement in the police case and suppression of
factual information in the attestation form by the candidate. It was an admitted fact
that two prosecutions were pending on the date when he filled in the form. The
employee was under probation at the time of termination of his service. This Court
has held thus :
“8. We have heard the learned counsel for the parties and gone
through the record. Rule 57 of the Rules provides for a
probation period of 2 years from the date of appointment
subject to extension. Rule 67 provides that a direct recruit
selected for appointment as an enrolled member of the Force is
liable to be discharged at any stage if the Chief Security Officer,
for reasons to be recorded in writing, deems it fit to do so in the
interest of the Force till such time as the recruit is not formally
appointed to the Force. A reading of these two rules would
reveal that till a recruit is formally enrolled to the Force his
appointment is extremely tenuous.
9. It is the admitted case that the respondent was still under
probation at the time his services had been terminated. It is also
apparent from the record that the respondent had been given
appointment on probation subject to verification of the facts
given in the attestation form. To our mind, therefore, if an
enquiry revealed that the facts given were wrong, the appellant
was at liberty to dispense with the services of the respondent as
the question of any stigma and penal consequences at this stage
would not arise.
10. It bears repetition that what has led to the termination of
service of the respondent is not his involvement in the two
cases which were then pending, and in which he had been
discharged subsequently, but the fact that he had withheld
relevant information while filling in the attestation form. We are
further of the opinion that an employment as a police officer
pre-supposes a higher level of integrity as such a person isPage 28
28
expected to uphold the law, and on the contrary, such a service
born in deceit and subterfuge cannot be tolerated.”
The fact remains that this Court in Bipad Bhanjan Gayen (supra), the case in
which the offence involved was with respect to commission of rape under section
376 and cheating under section 417. The case involved moral turpitude, as such
suppression was material as that would have clear impact on the antecedents and
suitability of an incumbent for being appointed in the service. Thus the suppression
was material and was such that the employer could have safely taken the view to
terminate the services. Such an incumbent cannot be said to have any equity to
seek employment till he is given a clean chit by the courts of law and his
antecedents are otherwise found to be good besides the acquittal.
13. In A.P. Public Service Commission v. Koneti Venkateswarulu & Ors. (2005)
7 SCC 177 there was suppression of the information regarding the employment
and the explanation offered that he inadvertently filled the form was not accepted.
14. In Kamal Nayan Mishra v. State of Madhya Pradesh & Ors. (2010) 2 SCC
169, this Court has considered the question of dismissal of a confirmed employee
without any inquiry or opportunity to show cause on the basis that he had furnished
incorrect/false information in his personal attestation form. This Court held that
such misdemeanor would be treated as a misconduct and punishment can be
imposed only after subjecting the employee to appropriate disciplinary proceedingsPage 29
29
as per the relevant service rules. Besides, the attestation was required to be
furnished after 14 years of the service, and even after detection of the suppression,
the authorities waited for 7 long years which indicated that the Department
assumed that such misconduct did not call for any disciplinary or punitive action.
Thus the belated decision which was taken to terminate his service sans enquiry
was adjudged to be illegal and violative of protection conferred under Article
311(2) of the Constitution. This Court in Kamal Nayan Mishra (supra) has held
that the decision in Ram Ratan (supra) was with respect to a probationer. It was not
laid down in the said decision that services of a confirmed employee holding a
civil post under the State, could be terminated for furnishing false information in
the attestation form, without giving him an opportunity to meet the charges against
him, as such the termination was void. This Court held thus :
“9. On the contentions urged, two questions arise for
consideration:
(i) Whether the ratio decidendi of the decision in Ram Ratan
Yadav (2003) 3 SCC 437 apply to this case? Does it hold that
the State Government could dismiss or remove the holder of a
civil post, without any enquiry or opportunity to show cause,
once it is found that he has given incorrect/false information in
the personal attestation form?
(ii) Whether the termination of the appellant is valid?”
x x x x x
“18. There are also several other features in this case which
distinguish it from Ram Ratan Yadav (2003) 3 SCC 437. First
is that Ram Ratan Yadav (supra) related to an employee ofPage 30
30
Kendriya Vidyalaya Sangathan, who did not have the protection
of Article 311 of the Constitution of India, whereas in this case
we are concerned with a government servant protected by
Article 311. Second is that the attestation form in this case, was
required to be furnished by the employee, not when he was
appointed, but after fourteen years of service. The third is that
while action was promptly taken against the probationer in Ram
Ratan Yadav, within the period of probation, in this case even
after knowing that the appellant had furnished wrong
information, the respondents did not take any action for seven
long years, which indicated that the Department proceeded for a
long time on the assumption that the wrong information did not
call for any disciplinary or punitive action. The belated decision
to terminate him, seven years later was unjustified and violative
of Article 311.
19. If the appellant had been issued a charge-sheet or a
show-cause notice he would have had an opportunity to explain
the reason for answering the queries in Column 12 in the
manner he did. He could have explained that he did not
understand the queries properly and that he was instructed to
furnish the information as on the date of appointment. In fact
his contention that he was required to answer the queries in
Column 12 with reference to the date of his appointment, finds
support from the termination order, which says that the
appellant was terminated for giving wrong information and
concealment of facts in the attestation from at the time of initial
recruitment. This clearly implies that he was expected to reply
the queries in Column 12 with reference to his initial
appointment, even though Clauses 12(b) and (c) of the form
stated that the information should be as on the date of signing
of the attestation form. The explanations given by the appellant,
would have certainly made a difference to the finding on guilt
and the punishment to be imposed. But he could not give the
said explanations as there was no show-cause notice or enquiry.
The termination order is also unsustainable, as the statement
therein that the appellant had given wrong information and
concealed the facts at the time of initial recruitment, is
erroneous.
20. The learned counsel for the respondents drew our attention
to the instructions to the employees in the preamble to thePage 31
31
attestation form and the undertaking contained in the
verification certificate by the employee at the end of the
attestation form, which puts him on notice that any false
information could result in termination of his service without
enquiry. It is contended that as the attestation form stated that
an employee could be terminated without notice, if he furnishes
false information, the employee is estopped from objecting to
termination without notice. The said contention may merit
acceptance in the case of a probationer, but not in the case of a
confirmed government servant.
21. No term in the attestation form, nor any consent given by a
government servant, can take away the constitutional safeguard
provided to a government servant under Article 311 of the
Constitution.
x x x x x
23. We also find from an examination of the terms of the
attestation form that termination without notice or inquiry was
contemplated only in the context of furnishing false information
in and around the time of the appointment. Note (1) of the
preamble warns that:
“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”.
Similarly, the certificate at the end of the attestation form states
that:
“I am not aware of any circumstances which might impair my
fitness for employment under the Government. I agree that if
the above information is found false or incomplete in any
material respect, the appointing authority will have a right to
terminate my services without giving notice or showing cause.”
Be that as it may.
x x x x x
25. We have already pointed out that there are clear indications
that the appellant was bona fide under the impression that he
was required to give the particulars sought in Column 12 of thePage 32
32
form with reference to the date of his appointment. Further, the
entire matter relates to an attestation form given in 1994 and the
appellant has already been out of service for more than seven
years on account of the illegal termination from service without
an inquiry on 7-3-2002. We are therefore of the view that the
interests of justice would be served if the appellant is reinstated
with continuity of service and other consequential benefits,
dispensing with any further disciplinary action. The appellant
will not be entitled to any salary for the period 7-3-2002 till
today.”
In Kamal Nayan Mishra (supra), this Court has considered various aspects
while holding termination order for Kamal Nayan Mishra on the ground of
suppression of information was bad in law. The employer has to take into
consideration various aspects and a blanket order of termination of services cannot
be passed on the basis of mere enabling clause in the verification form to do so.
15. In Daya Shankar Yadav v. Union of India & Ors. (2010) 14 SCC 103 on
consideration of various aspects as to ambiguities in the verification form, this
Court observed that the purpose of seeking the information is to ascertain the
character and antecedents of the candidate so as to assess the suitability for the
post. Therefore the candidate will have to answer the questions truthfully and fully
and any misrepresentation or suppression or false statement therein, by itself would
demonstrate a conduct or character unbefitting for a uniformed police force. This
Court has observed various consequences which may arise due to character and
antecedents verification thus :Page 33
33
“14. Rule 14 of the Central Reserve Police Force Rules, 1955
relevant in this case relates to verification. Clauses (a) and (b)
of the said Rule are extracted below :
“14. Verification.—(a) As soon as a man is enrolled, his
character, antecedents, connections and age shall be verified in
accordance with the procedure prescribed by the Central
Government from time to time. The verification roll shall be
sent to the District Magistrate or Deputy Commissioner of the
District of which the recruit is a resident.
(b) The verification roll shall be in CRP Form 25 and after
verification shall be attached to the character and service roll of
the member of the force concerned.”
The purpose of seeking the said information is to ascertain the
character and antecedents of the candidate so as to assess his
suitability for the post. Therefore, the candidate will have to
answer the questions in these columns truthfully and fully and
any misrepresentation or suppression or false statement therein,
by itself would demonstrate a conduct or character unbefitting
for a uniformed security service.
15. When an employee or a prospective employee declares in a
verification form, answers to the queries relating to character
and antecedents, the verification thereof can therefore lead to
any of the following consequences:
(a) If the declarant has answered the questions in the
affirmative and furnished the details of any criminal case
(wherein he was convicted or acquitted by giving benefit of
doubt for want of evidence), the employer may refuse to offer
him employment (or if already employed on probation,
discharge him from service), if he is found to be unfit having
regard to the nature and gravity of the offence/crime in which
he was involved.
(b) On the other hand, if the employer finds that the criminal
case disclosed by the declarant related to offences which were
technical, or of a nature that would not affect the declarant’s
fitness for employment, or where the declarant had been
honourably acquitted and exonerated, the employer may ignore
the fact that the declarant had been prosecuted in a criminalPage 34
34
case and proceed to appoint him or continue him in
employment.
(c) Where the declarant has answered the questions in the
negative and on verification it is found that the answers were
false, the employer may refuse to employ the declarant (or
discharge him, if already employed), even if the declarant had
been cleared of the charges or is acquitted. This is because
when there is suppression or non-disclosure of material
information bearing on his character, that itself becomes a
reason for not employing the declarant.
(d) Where the attestation form or verification form does not
contain proper or adequate queries requiring the declarant to
disclose his involvement in any criminal proceedings, or where
the candidate was unaware of initiation of criminal proceedings
when he gave the declarations in the verification roll/attestation
form, then the candidate cannot be found fault with, for not
furnishing the relevant information. But if the employer by
other means (say police verification or complaints, etc.) learns
about the involvement of the declarant, the employer can have
recourse to courses (a) or (b) above.
16. Thus an employee on probation can be discharged from
service or a prospective employee may be refused employment:
(i) on the ground of unsatisfactory antecedents and character,
disclosed from his conviction in a criminal case, or his
involvement in a criminal offence (even if he was acquitted on
technical grounds or by giving benefit of doubt) or other
conduct (like copying in examination) or rustication or
suspension or debarment from college, etc.; and (ii) on the
ground of suppression of material information or making false
statement in reply to queries relating to prosecution or
conviction for a criminal offence (even if he was ultimately
acquitted in the criminal case). This ground is distinct from the
ground of previous antecedents and character, as it shows a
current dubious conduct and absence of character at the time of
making the declaration, thereby making him unsuitable for the
post.” Page 35
35
16. This Court has also held that query in verification form has to be very clear,
specific and unambiguous. This Court has observed thus :
“21. If the object of the query is to ascertain the antecedents
and character of the candidate to consider his fitness and
suitability for employment, and if the consequence of a wrong
answer can be rejection of his application for appointment, or
termination from service if already appointed, the least that is
expected of the employer is to ensure that the query was clear,
specific and unambiguous. Obviously, the employer cannot
dismiss/discharge/terminate an employee, for misunderstanding
a vague and complex question, and giving a wrong answer. We
do hope that CRPF and other uniformed services will use clear
and simple questions and avoid any variations between the
English and Hindi versions. They may also take note of the fact
that the ambiguity and vague questions will lead to hardship
and mistakes and make the questions simple, clear and
straightforward. Be that as it may.”
However, on facts this Court held that the employee was not misled and
made a false statement. As such CRPF was justified in dispensing with his services
for not being truthful in giving material information.
17. In State of West Bengal & Ors. v. SK. Nazrul Islam (2011) 10 SCC 184, there
was concealment of fact regarding antecedents in the verification form. Though
Nazrul Islam was selected and found medically fit, he concealed the fact that he
was involved in a criminal case. A chargesheet was filed and he had been granted
bail. The employer did not appoint him as a Constable. The High Court directed
that the employer could not withhold the offer of appointment and they werePage 36
36
directed to issue appointment letter to the employee, subject to final decision in the
pending criminal case. This Court held that due to pendency of the criminal case
under sections 148/323/380/427/506 IPC, the High Court had committed an
illegality in issuing a direction to appoint. The employee could not have been held
suitable for appointment to the post. This Court has laid down thus :
“5. We have heard the learned counsel for the parties and we
fail to appreciate how when a criminal case under Sections
148/323/380/448/427/506 IPC, against the respondent was
pending in the Court of the Additional Chief Judicial
Magistrate, Uluberia, Howrah, any mandamus could have been
issued by the High Court to the authorities to appoint the
respondent as a constable. Surely, the authorities entrusted with
the responsibility of appointing constables were under duty to
verify the antecedents of a candidate to find out whether he is
suitable for the post of constable and so long as the candidate
has not been acquitted in the criminal case of the charges under
Sections 148/323/380/448/427/506 IPC, he cannot possibly be
held to be suitable for appointment to the post of constable.”
18. In Commissioner of Police & Ors. v. Sandeep Kumar (2011) 4 SCC 644, this
Court considered a case where Sandeep Kumar’s candidature for the post of
Constable was cancelled on the ground that he had concealed his involvement in
the criminal case under section 325/34 IPC when he was about 20 years. In para 9,
this Court took note of the character “Jean Valjean” in Victor Hugo’s novel ‘Les
Miserables’ in which for committing a minor offence of stealing a loaf of bread for
his hungry family, Jean Valjean was branded as a thief for whole life. This CourtPage 37
37
also referred to the decision in Morris v. Crown Office (1970) 2 QB 114. Relevant
portion is extracted hereunder :
“8. We respectfully agree with the Delhi High Court that the
cancellation of his candidature was illegal, but we wish to give
our own opinion in the matter. When the incident happened the
respondent must have been about 20 years of age. At that age
young people often commit indiscretions, and such
indiscretions can often be condoned. After all, youth will be
youth. They are not expected to behave in as mature a manner
as older people. Hence, our approach should be to condone
minor indiscretions made by young people rather than to brand
them as criminals for the rest of their lives.
9. In this connection, we may refer to the character “Jean
Valjean” in Victor Hugo’s novel Les Miserables, in which for
committing a minor offence of stealing a loaf of bread for his
hungry family Jean Valjean was branded as a thief for his whole
life. The modern approach should be to reform a person instead
of branding him as a criminal all his life.
10. We may also here refer to the case of Welsh students
mentioned by Lord Denning in his book Due Process of Law. It
appears that some students of Wales were very enthusiastic
about the Welsh language and they were upset because the radio
programmes were being broadcast in the English language and
not in Welsh. They came up to London and invaded the High
Court. They were found guilty of contempt of court and
sentenced to prison for three months by the High Court Judge.
They filed an appeal before the Court of Appeals. Allowing the
appeal, Lord Denning observed:
“I come now to Mr Watkin Powell’s third point. He says
that the sentences were excessive. I do not think they
were excessive, at the time they were given and in the
circumstances then existing. Here was a deliberate
interference with the course of justice in a case which
was no concern of theirs. It was necessary for the Judge
to show—and to show to all students everywhere—that
this kind of thing cannot be tolerated. Let students
demonstrate, if they please, for the causes in which theyPage 38
38
believe. Let them make their protests as they will. But
they must do it by lawful means and not by unlawful. If
they strike at the course of justice in this land—and I
speak both for England and Wales—they strike at the
roots of society itself, and they bring down that which
protects them. It is only by the maintenance of law and
order that they are privileged to be students and to study
and live in peace. So let them support the law and not
strike it down.
But now what is to be done? The law has been vindicated
by the sentences which the Judge passed on Wednesday
of last week. He has shown that law and order must be
maintained, and will be maintained. But on this appeal,
things are changed. These students here no longer defy
the law. They have appealed to this Court and shown
respect for it. They have already served a week in prison.
I do not think it necessary to keep them inside it any
longer. These young people are no ordinary criminals.
There is no violence, dishonesty or vice in them. On the
contrary, there was much that we should applaud. They
wish to do all they can to preserve the Welsh language.
Well may they be proud of it. It is the language of the
bards—of the poets and the singers—more melodious by
far than our rough English tongue. On high authority, it
should be equal in Wales with English. They have done
wrong—very wrong—in going to the extreme they did.
But, that having been shown, I think we can, and should,
show mercy on them. We should permit them to go back
to their studies, to their parents and continue the good
course which they have so wrongly disturbed.” (Vide
Morris v. Crown Office (1970) 2 QB 114 at p. 125C-H.
In our opinion, we should display the same wisdom as
displayed by Lord Denning.
11. As already observed above, youth often commits
indiscretions, which are often condoned.
12. It is true that in the application form the respondent did not
mention that he was involved in a criminal case under Sections
325/34 IPC. Probably he did not mention this out of fear that if
he did so he would automatically be disqualified. At any event,Page 39
39
it was not such a serious offence like murder, dacoity or rape,
and hence a more lenient view should be taken in the matter.”
This Court has observed that suppression related to a case when the age of
Sandeep Kumar was about 20 years. He was young and at such age people often
commit indiscretions and such indiscretions may often be condoned. The modern
approach should be to reform a person instead of branding him a criminal all his
life. In Morris v. Crown Office (supra), the observations made were that young
people are no ordinary criminals. There is no violence, dishonesty or vice in them.
They were trying to preserve the Welsh language. Though they have done wrong
but must we show mercy on them and they were permitted to go back to their
studies, to their parents and continue the good course.
19. In Ram Kumar v. State of Utttar Pradesh & Ors. (2011) 14 SCC 709,
appointment was denied to Ram Kumar due to failure to disclose in the verification
form about a criminal case under sections 324/323/504 IPC in which he was
subsequently acquitted. This Court examined the sustainability of the order and
laid down that in terms of the instructions in Government Order dated 28.4.1958 it
was the duty of the appointing authority to satisfy himself whether the appellant
was suitable for appointment to the post of a Constable, with reference to nature of
suppression and nature of the criminal case. Instead thereof, the appointing
authority mechanically held that his selection was irregular and illegal because thePage 40
40
appellant had furnished an affidavit stating the facts incorrectly at the time of
recruitment. This Court also took note of the facts of the case that he was acquitted
subsequently and since the sole witness had deposed that victim was injured when
he fell and hit a brick platform and that he was not beaten by the accused by any
sharp weapon. In view of the aforesaid it was held by this Court that the
appointing authority could not have found appellant unsuitable to the post of
Constable. Hence, the appeal was allowed and appointment of employee was
directed. However, backwages were denied for the period he remained out of
service. Relevant portion of the decision is extracted below :
“9. We have carefully read the Government Order dated
28-4-1958 on the subject “Verification of the character and
antecedents of government servants before their first
appointment” and it is stated in the government order that the
Governor has been pleased to lay down the following
instructions in supersession of all the previous orders:
“The rule regarding character of candidate for
appointment under the State Government shall continue
to be as follows:
The character of a candidate for direct appointment
must be such as to render him suitable in all respects
for employment in the service or post to which he is to
be appointed. It would be the duty of the appointing
authority to satisfy itself on this point.”
10. It will be clear from the aforesaid instructions issued by the
Governor that the object of the verification of the character and
antecedents of government servants before their first
appointment is to ensure that the character of a government
servant for a direct recruitment is such as to render him suitable
in all respects for employment in the service or post to which hePage 41
41
is to be appointed and it would be a duty of the appointing
authority to satisfy itself on this point.
11. In the facts of the present case, we find that though Criminal
Case No. 275 of 2001 under Sections 324/323/504 IPC had
been registered against the appellant at Jaswant Nagar Police
Station, District Etawah, admittedly the appellant had been
acquitted by order dated 18-7-2002 by the Additional Chief
Judicial Magistrate, Etawah.
12. On a reading of the order dated 18-7-2002 of the Additional
Chief Judicial Magistrate it would show that the sole witness
examined before the court, PW 1, Mr Akhilesh Kumar, had
deposed before the court that on 2-12-2000 at 4.00 p.m.
children were quarrelling and at that time the appellant,
Shailendra and Ajay Kumar amongst other neighbours had
reached there and someone from the crowd hurled abuses and
in the scuffle Akhilesh Kumar got injured when he fell and his
head hit a brick platform and that he was not beaten by the
accused persons by any sharp weapon. In the absence of any
other witness against the appellant, the Additional Chief
Judicial Magistrate acquitted the appellant of the charges under
Sections 323/34/504 IPC. On these facts, it was not at all
possible for the appointing authority to take a view that the
appellant was not suitable for appointment to the post of a
police constable.
13. The order dated 18-7-2002 of the Additional Chief Judicial
Magistrate had been sent along with the report dated 15-1-2007
of Jaswant Nagar Police Station to the Senior Superintendent of
Police, Ghaziabad, but it appears from the order dated 8-8-2007
of the Senior Superintendent of Police, Ghaziabad, that he has
not gone into the question as to whether the appellant was
suitable for appointment to service or to the post of constable in
which he was appointed and he has only held that the selection
of the appellant was illegal and irregular because he did not
furnish in his affidavit in the pro forma of verification roll that a
criminal case has been registered against him.
14. As has been stated in the instructions in the Government
Order dated 28-4-1958, it was the duty of the Senior
Superintendent of Police, Ghaziabad, as the appointing
authority, to satisfy himself on the point as to whether thePage 42
42
appellant was suitable for appointment to the post of a
constable, with reference to the nature of suppression and
nature of the criminal case. Instead of considering whether the
appellant was suitable for appointment to the post of male
constable, the appointing authority has mechanically held that
his selection was irregular and illegal because the appellant had
furnished an affidavit stating the facts incorrectly at the time of
recruitment.”
20. When we take stock of aforesaid decisions of this Court in nutshell it
emerges that in Ramashanker Raghuvanshi (supra), this Court has opined that
activities in Jan Sangh and RSS could not be made a ground to deprive
employment. In democratic set up ‘McCarthyism’ is not healthy. Some leniency
to young people cannot be ruled out. In T. S. Vasudavan Nair (supra), a three
Judges’ Co-ordinate Bench of this Court held that due to non-disclosure of
conviction in a case of violation of Defence of India Rules by shouting slogans, the
cancellation of appointment was illegal. In Dhaval Singh (supra), though
pendency of case was suppressed when verification form was filed, however, the
information about it was furnished before cancellation of appointment order on the
ground of suppression was passed. This Court set aside the order on the ground of
non-consideration of effect of disclosure made before order of cancellation of
appointment was passed. In Sandeep Kumar (supra), this Court in the backdrop
fact of the case that offence suppressed was committed under section 325/34 IPC at
the time when incumbent was 20 years of age. This Court held that young people
to be dealt with leniency. They should not be deprived of appointment asPage 43
43
suppression did not relate to involvement in a serious case. In Ram Kumar
(supra), this Court considered a case when pending criminal case under sections
324, 323, 504 IPC in which subsequently acquittal had been recorded, no overt act
was attributed by sole witness to incumbent and moreover Government
instructions dated 28.4.1958 requiring authority to consider suitability as such was
not complied with, denying back wages to incumbent, his appointment was
ordered. In Regional Manager, Bank of Baroda (supra), this Court declined to
interfere under Art.136 in view of subsequent acquittal in a case under section 307
IPC. The decision of Labour Court was not interfered with. Passage of time was
taken into consideration. However, this Court clarified that decision will not be
treated as precedent. In Kamal Nayan Mishra (supra), action was taken when
employee was not on probation. He had been confirmed in service and was
holding civil post, attestation was filled after 14 years of service and then after 7
years of that, action was taken. It was held that confirmed employee could not
have been removed in view of protection under Art.311(2) without enquiry.
Removal was held to be void. In M. Bhaskaran (supra), it was held that when the
employment was taken on bogus and forged casual labourer service card no
estoppel was created against employer by appointment and such appointment was
voidable. In Sushil Kumar (supra), on consideration of background facts of the
pending case which was suppressed under sections 304, 324/34 and 324 IPC, itPage 44
44
was held not desirable to appoint incumbent notwithstanding his subsequent
acquittal. In Ram Ratan Yadav (supra), this Court held that suppression of pending
criminal case under sections 323, 341, 294, 506B/34 IPC on the date of filing
attestation form coupled with impact of it on students, nature of employment, the
discretion exercised to terminate the services was upheld. In R. Radhakrishnan
(supra) in which pendency of criminal case under section 294(b) IPC was
suppressed relying on Sushil Kumar (supra), it was held that removal was legal.
In Bipad Bhanjan Gayen (supra), there was suppression of two pending
cases on the date of filing verification form under sections 376 IPC and 417 IPC
relating to rape and cheating. It was observed that since antecedents were not good
incumbent could not claim equity for appointment. In Daya Shankar Yadav
(supra), this Court has laid down course of action to be taken in such cases, and
that suppression by itself can be a ground to remove person from service or cancel
an appointment, notwithstanding acquittal in the criminal case. In SK Nazrul
Islam (supra), due to suppression of pending case on the date of filing of form
under sections 148, 323, 380, 427, 596 IPC incumbent was adjudged to be
unsuitable for appointment.
This Court has also opined that before a person is held guilty of suppression
of a fact it has to be considered whether verification form is precise and is not
vague, and what it required to disclose. In Daya Shankar (supra) it was held thatPage 45
45
in case verification form is vague no fault can be found on the ground of
suppression. However, facts which have come to knowledge it has to be
determined by employer whether antecedents of incumbent are good for service, to
hold someone guilty of suppression, query in the form has to be specific. Similarly,
in B. Chinnam Naidu (supra) when column in verification form required to disclose
detention or conviction, it did not require to disclose a pending criminal case or
fact of arrest, removal on the ground of material suppression of pending case and
arrest was set aside as that was not required to be disclosed.
21. The verification of antecedents is necessary to find out fitness of incumbent,
in the process if a declarant is found to be of good moral character on due
verification of antecedents, merely by suppression of involvement in trivial offence
which was not pending on date of filling attestation form, whether he may be
deprived of employment? There may be case of involving moral turpitude/serious
offence in which employee has been acquitted but due to technical reasons or
giving benefit of doubt. There may be situation when person has been convicted of
an offence before filling verification form or case is pending and information
regarding it has been suppressed, whether employer should wait till outcome of
pending criminal case to take a decision or in case when action has been initiated
there is already conclusion of criminal case resulting in conviction/acquittal as the
case may be. The situation may arise for consideration of various aspects in a casePage 46
46
where disclosure has been made truthfully of required information, then also
authority is required to consider and verify fitness for appointment. Similarly in
case of suppression also, if in the process of verification of information, certain
information comes to notice then also employer is required to take a decision
considering various aspects before holding incumbent as unfit. If on verification of
antecedents a person is found fit at the same time authority has to consider effect of
suppression of a fact that he was tried for trivial offence which does not render him
unfit, what importance to be attached to such non-disclosure. Can there be single
yardstick to deal with all kind of cases?
22. The employer is given ‘discretion’ to terminate or otherwise to condone the
omission. Even otherwise, once employer has the power to take a decision when at
the time of filling verification form declarant has already been convicted/acquitted,
in such a case, it becomes obvious that all the facts and attending circumstances,
including impact of suppression or false information are taken into consideration
while adjudging suitability of an incumbent for services in question. In case the
employer come 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 higher officials/higher posts, standard has to bePage 47
47
very high and even slightest false information or suppression may by 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 or
ground of acquittal in criminal case would not affect the fitness for employment
incumbent may be appointed or continued in service.
23. 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 when form was filled, in such matters, employer is bound to
consider grounds of acquittal and various other aspects, overall conduct of
employee including the accusations which have been levelled. If on verification,
the antecedents are otherwise also not found good, and in number of casesPage 48
48
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, shouting 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.
24. No doubt about it that once verification form requires certain information to
be furnished, declarant is duty bound to furnish it correctly and any suppression of
material facts or submitting false information, may by itself lead to termination of
his services or cancellation of candidature in an appropriate case. However, in a
criminal case incumbent has not been acquitted and case is pending trial, employer
may well be justified in not appointing such an incumbent or in terminating the
services as conviction ultimately may render him unsuitable 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.
25. The fraud and misrepresentation vitiates a transaction and in case
employment has been obtained on the basis of forged documents, as observed in
M. Bhaskaran’s case (supra), it has also been observed in the reference order that if
an appointment was procured fraudulently, the incumbent may be terminated
without holding any inquiry, however we add a rider that 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. The case of obtaining appointment
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. The fraudulently obtained appointment
orders are voidable at the option of employer, however, question has to be
determined in the light of the discussion made in this order on impact of
suppression or submission of false information.
26. 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.
27. 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.
28. 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 concerned authorities
considering post/nature of duties/services and power has to be exercised on due
consideration of various aspects.
29. 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.
30. 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:
(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.
(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.
(3) The employer shall take into consideration the Government
orders/instructions/rules, applicable to the employee, at the time of taking
the decision.
(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 recourse
appropriate to the case may be adopted : -
(a) 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.
(b) Where conviction has been recorded in case which is not trivial
in nature, employer may cancel candidature or terminate
services of the employee.
(c) 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.
(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.
(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.
(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.
(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 appointingPage 53
53
authority would take decision after considering the seriousness of the
crime.
(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.
(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.
(11) Before a person is held guilty of suppressio veri or suggestio falsi,
knowledge of the fact must be attributable to him.Page 54
54
We answer the reference accordingly. Let the matters be placed before an
appropriate Bench for consideration on merits.
………………………..J.
(Ranjan Gogoi)
………………………J.
(Arun Mishra)
New Delhi; ………………………J.
July 21, 2016. (Prafulla C. Pant)
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