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Monday, July 25, 2016

Service Matter - 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.= The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision. In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted : - In a case trivial 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. Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee. If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable 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. 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. 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. 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. 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. 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. 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. Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him.Let the matters be placed before an appropriate Bench for consideration on merits.

                                                                  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]



                               J U D G M E N T



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 various 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.

                                  x x x x x

    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 of 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  same  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 to 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  the  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 :

“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
decided 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  from  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.

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 a 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.
The 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.”


      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 the 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.”
“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 of  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 417 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  is  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 proceedings 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 of 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 the  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 the 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 :

 “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
criminal 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.”

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 were 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  Court  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 they 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,  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 the 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 he 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
the 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 as 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,
it  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 that 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 case 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 be 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  cases  incumbent  is  involved  then
notwithstanding acquittals  in  a  case/cases,  it  would  be  open  to  the
employer to form opinion as to fitness on the basis of material  on  record.
In case offence is petty in nature committed at young age, such as  stealing
a bread, 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:

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.
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.
The   employer   shall    take    into    consideration    the    Government
orders/instructions/rules, applicable  to  the  employee,  at  the  time  of
taking the decision.
In case there is suppression  or  false  information  of  involvement  in  a
criminal case where  conviction  or  acquittal  had  already  been  recorded
before filling of the application/verification  form  and  such  fact  later
comes to knowledge of employer, any of the  following  recourse  appropriate
to the case may be adopted : -
In a case trivial 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.
Where conviction has been recorded in case which is not trivial  in  nature,
employer may cancel candidature  or terminate services of  the employee.
If acquittal had already been recorded in a case involving  moral  turpitude
or offence of heinous/serious nature, on technical ground and it  is  not  a
case of clean acquittal, or benefit of reasonable 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.








     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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