REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 5743-5744 OF 2021
(Arising out of SLP(Civil) Nos.7386-7387/2020)
Rajasthan Rajya Vidyut Prasaran Nigam
Limited and another … Appellants
Versus
Anil Kanwariya … Respondent
J U D G M E N T
M.R. SHAH, J.
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 05.09.2019 passed by the High Court of Judicature for
Rajasthan, Bench at Jaipur in D.B. Special Appeal Writ No. 560/2019, as
well as the order dated 05.12.2019 passed in D.B. Review Petition (Writ)
No. 250/2019, by which the Division Bench of the High Court has
dismissed the said appeal and has confirmed the judgment and order
passed by the learned Single Judge dated 23.01.2019 by which the
learned Single Judge allowed the said writ petition preferred by the
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respondent herein and quashed and set aside the order of termination
terminating the services of the respondent – employee herein – original
writ petitioner on the ground of suppression of material facts of
conviction and penalty at the time of applying for the post in 2013 and
also submitting a false declaration at the time of documents verification
on 14.04.2015, the employer – Rajasthan Rajya Vidyut Prasaran Nigam
Limited and another have preferred the present appeal.
3. That the appellants herein invited applications for the post of
Technical Helper by issuing advertisement in the month of October,
2013. Pursuant to the said advertisement, respondent herein –
employee applied for the said post. The written test was held on
02.02.2014 and result of which was declared on 31.03.2015. The date
fixed for the documents’ verification was 14.04.2015. The respondent
herein having qualified for the said post was appointed as a Technical
Helper as probationer trainee for a period of two years on 06.05.2015
and was placed under Superintending Engineer, RVPN, Jodhpur. As per
condition No. 16 of the terms and conditions of the appointment order,
the appointment of the respondent was subject to production of a
character certification/verification report issued by the Superintendent of
Police of the concerned District where he belongs. The Superintendent
of Police, Sawai Madhopur vide police verification/antecedents report
dated 5.6.2015 informed the appellants that a Case bearing No. 13/2011
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against the respondent-employee for the offences under Sections 143,
341, 323 IPC in which a chargesheet was filed against the respondentemployee on 17.01.2011 and the learned trial Court convicted the
respondent-employee vide judgment and order dated 5.8.2013,
convicting him for the offences under Sections 341 and 323 IPC,
however, given the benefit under the Probation of Offenders Act, 1958
(hereinafter referred to as “Act 1958”). While giving the benefit of Act
1958, the respondent-employee was ordered to be released on
probation for good conduct.
It is to be noted that even subsequently such conviction of the
respondent-employee came to be confirmed, however, the learned
Sessions Judge vide judgment dated 09.09.2015 granted the benefit of
Section 12 of the Act 1958 to the respondent-employee which provides
that a person shall not suffer disqualification attaching to the conviction.
3.1 Having found that the respondent-employee deliberately
suppressed the fact of conviction and penalty, not only at the time of
applying for the post, but also on 14.04.2015 whereby he submitted a
declaration during documents verification that neither criminal case is
pending against him nor he has suffered any conviction by any court of
law in any criminal case and finding concealment of facts of criminal
case, the appellants issued a show cause notice dated 31.08.2015 to
the respondent-employee and granted him an opportunity of being heard
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on 15.03.2016 and having found that in view of suppression of material
fact of not disclosing his conviction by the competent court, respondentemployee shall not be continued in service and therefore vide order
dated 6.5.2016, the appellants terminated the services of the
respondent-employee.
3.2 Aggrieved by the order of termination, the respondent-employee
preferred Writ Petition No. 6969 of 2016 before the learned Single Judge
of the High Court. The learned Single Judge of the High Court solely
relying on the judgment of this Court in the case of Avtar Singh v. Union
of India, reported in (2016) 8 SCC 471, and also on order dated
9.9.2015 passed by the learned Sessions Judge in appeal granting
benefit of Section 12 of the Act 1958, allowed the writ petition and
quashed and set aside the order of termination and directed the
appellants to reinstate the respondent-employee with all consequential
benefits.
3.3 Feeling aggrieved and dissatisfied with the judgment and order
passed by the learned Single Judge, quashing and setting aside the
order of termination and directing the appellants to reinstate the
respondent-employee, the appellants-employer preferred appeal before
the Division Bench being D.B. Special Appeal Writ No. 560 of 2019. The
Division Bench also solely relying upon para 38.4.1 of the decision of
this Court in the case of Avtar Singh (supra) and observing that the
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employee was held guilty in a dispute of trivial nature with his father,
uncle, brother and cousin and as it was a trivial nature dispute and such
a dispute which even if disclosed could have been ignored by the
employer because of the benefit of Section 12 of the Act 1958, the
Division Bench by the impugned judgment and order has dismissed the
said appeal and has confirmed the judgment and order passed by the
learned Single Judge, directing reinstatement of the employee with all
consequential benefits. The review petition preferred by the appellants
herein has also been dismissed.
4. Dr. Manish Singhvi, learned Senior Advocate has appeared on
behalf of the appellants and Mr. Navin Prakash, Advocate has appeared
on behalf of the respondent-employee.
4.1 Dr. Manish Singhvi, learned Senior Advocate appearing on behalf
of the appellants-employer has vehemently submitted that in the facts
and circumstances of the case, both, the learned Single Judge as well
as the Division Bench have materially erred in quashing and setting
aside the order of termination mainly relying upon the decision of this
Court in the case of Avtar Singh (supra) and considering the subsequent
order passed by the learned Sessions Court granting the benefit of
Section 12 of the Act 1958.
4.2 It is further submitted that, as such, in the facts and circumstances
of the case, the decision of this Court in the case of Avtar Singh (supra)
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shall not be applicable at all. It is submitted that on the contrary it
supports the case of the appellants.
4.3 It is further submitted that in the present case at the time when the
respondent-employee applied for the advertised post, he was already
convicted for the offences under Sections 341 and 323 IPC by the
competent criminal court which he did not disclose. It is submitted that
even thereafter also when he submitted the declaration at the time of
documents verification on 14.04.2015, the respondent-employee though
already suffered a conviction for the offences under Sections 341 and
323 IPC and at that time, i.e., on 14.04.2015, only the benefit under
Sections 3 & 4 of the Act 1958 was given, he filed a false declaration. It
is submitted that the learned trial Court did not grant the benefit of
Section 12 of the Act 1958, which benefit of Section 12 of the Act 1958
was given only vide judgment and order dated 9.9.2015 by the learned
Sessions Judge. It is submitted that as the respondent-employee
suppressed the material fact of criminal case firstly in the year 2013
when he submitted the application and thereafter subsequently on
14.04.2015 when he submitted the declaration at the time of documents
verification and thereafter when the services of the respondent were
terminated after giving him an opportunity of being heard, the same
ought not to have interfered with by the learned Single Judge and
thereafter by the Division Bench.
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4.4 It is further submitted that the High Court has materially erred in
even considering the subsequent decision of the learned Sessions Court
in appeal granting the benefit of Section 12 of the Act 1958. It is
submitted that the date on which the respondent applied for the said
post and even submitted the declaration, there was no order passed by
the learned Sessions Court granting the benefit of Section 12 of the Act
1958 and at that time the order passed by the learned trial Court
granting the benefit of Sections 3 & 4 of the Act 1958 was subsisting.
Therefore, the High Court ought not to have relied upon and/or taken
into consideration the subsequent decision of the learned Sessions
Judge dated 9.9.2015 granting the benefit of Section 12 of the Act 1958.
4.5 It is further submitted by the learned senior counsel appearing on
behalf of the appellants that the matter may be looked at from another
angle. It is submitted that when the employee initially suppressed the
material fact and obtained the appointment fraudulently, thereafter it is a
case of trustworthiness, reliability and credibility of such an employee. It
is submitted that if the employee would have disclosed at the relevant
time that he is facing the criminal trial and/or he has been convicted, in
that case from the very inception, the employer would not have
employed him. It is submitted that therefore the employer is justified in
not continuing such an employee who has suppressed the material fact
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at the relevant time, on the premise that such a person cannot be trusted
thereafter and cannot be continued in service.
4.6 It is further submitted that even the observations made by the
Division Bench in the impugned judgment that the dispute for which the
employee was convicted was a trivial nature dispute and such a dispute
which even if disclosed could have been ignored by the employer
because of the benefit of Section 12 of the Act 1958 given to him is
absolutely irrelevant, it is submitted that such a reasoning is not
germane. It is submitted that such an observation is on the basis of
surmises and conjectures that what could have been done by the
employer.
4.7 Making the above submissions and relying upon the decisions of
this Court in the cases of Kendriya Vidyalaya Sangathan v. Ram Ratan
Yadav, (2003) 3 SCC 437; Secretary, Department of Home Secretary,
A.P. v. B. Chinnam Naidu, (2005) 2 SCC 746; Daya Shankar Yadav v.
Union of India, (2010) 14 SCC 103; Jainendra Singh v. State of U.P.,
(2012) 8 SCC 748; Devendra Kumar v. State of Uttaranchal, (2013) 9
SCC 363; and State of M.P. v. Abhijit Singh Pawar, (2018) 18 SCC 733,
it is prayed to allow the present appeals and quash and set aside the
impugned judgment and order passed by the Division Bench and
consequently quash and set aside the judgment and order passed by
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the learned Single Judge and consequently dismiss the writ petition filed
by the respondent-employee before the High Court.
5. The present appeals are vehemently opposed by Shri Navin
Prakash, learned Advocate appearing for the respondent-employee. It is
submitted that in the facts and circumstances of the case and more
particularly the order passed by the learned Sessions Court granting the
benefit under Section 12 of the Act 1958 and considering the fact that
the dispute was of a trivial nature with the family members, the learned
Single Judge rightly set aside the order of termination which has been
rightly confirmed by the Division Bench.
5.1 It is further submitted that the order passed by the learned Single
Judge, confirmed by the Division Bench, is absolutely in consonance
with the decision of this Court in the case of Avtar Singh (supra), more
particularly para 38.4.1 of the said decision.
5.2 It is further submitted by the learned counsel that even otherwise
the omission or the lapse committed on the part of the respondent was
neither intentional nor deliberate, rather it was under bonafide belief that
in view of the benefit granted to the respondent under the provisions of
section 3 of the Act 1958 by the learned trial Court, the respondent has
not incurred disqualification. It is submitted therefore the said omission
or the lapse deserves to be condoned by taking a lenient view. Heavy
reliance is placed on the decisions of this Court in the cases of T.S.
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Vasudavan Nair v. Director of Vikram Sarabhai Space Centre, 1988
Supp. SCC 795; Commissioner of Police v. Sandeep Kumar, (2011) 4
SCC 644; and Avtar Singh (supra).
5.3 It is further submitted that in the instant case, as has been held by
the learned Single Judge in judgment and order dated 23.01.2019, the
employer – appellants herein did not at all consider the case of the
respondent as regard to the extenuating circumstances and the benefit
granted to him under sections 3 & 12 of the Act 1958 by the learned trial
Court and the learned sessions Court.
5.4 Making the above submissions and relying upon the aforesaid
decisions, it is prayed to dismiss the present appeals.
6. We have heard the learned counsel for the respective parties at
length.
At the outset, it is required to be noted that the appellants herein –
employer terminated the services of the respondent on non-disclosure of
the pending criminal case against him at the time when he submitted the
application for appointment, submitted in the month of
October/November, 2013 and thereafter in the declaration dated
14.04.2015. As observed hereinabove, the respondent was
chargesheeted for the offences under Sections 143, 341 and 323 IPC
vide chargesheet dated 17.01.2011. The learned trial Court convicted
the respondent for the offences under Sections 341 & 323 IPC, vide
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judgment and order dated 5.8.2013. However, granted the benefit under
Section 3 of the Act 1958 only. In the month of October, 2013, the
appellants issued an advertisement for the post of Technical Helper and
the last date for submission of the application was 14.11.2013. Pursuant
to the said advertisement, the respondent applied for the said post and
the written test was held on 02.02.2014 and the result of which was
declared on 31.03.2015. The respondent submitted declaration on
14.04.2015 declaring that neither any criminal case is pending against
him nor he has been convicted by any court of law. The date fixed for
documents verification was 14.04.2015 and along with the documents
verification he was required to file a declaration which he submitted
stating that neither any criminal case is pending against him nor he has
been convicted by any court of law. Therefore, on the date of submitting
an application and even at the time when declaration was filed on
14.04.2015, there was already an order of conviction against him. Even
at the relevant time, the benefit of Section 12 of the Act 1958 was not
granted to the respondent, which was given subsequently vide judgment
of the learned Sessions Court dated 09.09.2015.
6.1 At this stage, it is required to be noted that the show cause notice
dated 31.08.2015 was followed after the employer received the police
verification/antecedents report dated 5.6.2015 of the Superintendent of
Police, Sawai Madhopur disclosing that the respondent was already
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convicted by the learned trial Court vide judgment and order dated
5.8.2013 and was granted the benefit of Section 3 of the Act 1958 only.
That thereafter it appears that having realised that in view of the
conviction imposed by the learned trial Court and granted the benefit of
Section 3 of the Act 1958 only, the same shall come in his way, belatedly
the respondent preferred an appeal before the learned Sessions Court
on 11.08.2015, challenging the judgment and order of conviction passed
by the learned trial Court dated 5.8.2013, i.e., after a period of two years.
That by judgment and order dated 9.9.2015, the learned Sessions Court
allowed the said appeal partly, however granted the benefit of Section 12
of the Act 1958, as prayed.
6.2 From the judgment and order passed by the learned Sessions
Court, it appears that only submission on behalf of the respondent was
with respect to granting the benefit of Section 12 of the Act 1958 and the
appeal came to be disposed of by the learned Sessions Court within a
period of one month from the date of filing of the appeal, though the
judgment and order of conviction by the learned trial Court was passed
in the year 2013. Therefore, it appears that only with a view to get out of
the disqualification of conviction, belatedly he preferred an appeal and
obtained the order of granting the benefit of Section 12 of the Act 1958.
Even otherwise, it is required to be noted that on getting the benefit of
Section 12 of the Act 1958 subsequently by that itself the respondent
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cannot get away of the allegations of suppression of material fact and
filing a false declaration that neither any criminal case is pending against
him nor he has been convicted by any court of law, which was filed on
14.04.2015.
6.3 Thus, at the time when he submitted the application for
appointment in the month of October/November 2013, the respondent
already suffered a conviction by the competent court which not only he
did not disclose, but in fact, a false declaration was filed that neither any
criminal case is pending against him nor he has been convicted by any
court of law. That thereafter after receipt of the police
verification/antecedents report dated 5.6.2015 from the Superintendent
of Police, Sawai Madhopur and after giving a show cause notice and an
opportunity of being heard to the respondent, the employer terminated
the services of the respondent on the ground of non-disclosure
/suppression of material fact and filing a false declaration.
7. In light of the aforesaid facts, the orders passed by the learned
Division Bench as well as the learned Single Judge of the High Court
and the reliance placed upon the decision of this Court in the case of
Avtar Singh (supra), relied upon on behalf of the respondent-employee,
are required to be considered.
8. While considering the aforesaid issues, few decisions of this Court
on appointment obtained by fraud/misrepresentation and/or appointment
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obtained by suppression of material facts are required to be referred to
and considered.
8.1 In the case of B. Chinnam Naidu (supra), this Court has observed
that the object of requiring information in the attestation form and the
declaration thereafter by the candidate is to ascertain and verify the
character and antecedents to judge his suitability to enter into or
continue in service. It is further observed that when a candidate
suppresses material information and/or gives false information, he
cannot claim any right for appointment or continuance in service.
8.2 In the case of Devendra Kumar (supra), while joining the training,
the employee was asked to submit an affidavit giving certain information,
particularly, whether he had ever been involved in any criminal case.
The employee submitted an affidavit stating that he had never been
involved in any criminal case. The employee completed his training
satisfactorily and it was at this time that the employer in pursuance of the
process of character verification came to know that the employee was in
fact involved in a criminal case. It was found that the final report in that
case had been submitted by the prosecution and accepted by the
Judicial Magistrate concerned. On the basis of the same, the employee
was discharged abruptly on the ground that since he was a temporary
government servant, he could be removed from service without holding
an enquiry. The said order was challenged by the employee by filing a
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writ petition before a Single Judge of the High Court which was
dismissed. The Division Bench upheld that order, which was the subject
matter of appeal before this Court. Dismissing the appeal, this Court
observed and held that the question is not whether the employee is
suitable for the post. The pendency of a criminal case/proceeding is
different from suppressing the information of such pendency. The case
pending against a person might not involve moral turpitude but
suppressing of this information itself amounts to moral turpitude. It is
further observed that the information sought by the employer if not
disclosed as required, would definitely amount to suppression of material
information and in that eventuality, the service becomes liable to be
terminated, even if there had been no further trial or the person
concerned stood acquitted/discharged. It is further observed by this
Court in the said decision that where an applicant/employee gets an
order by misrepresenting the facts or by playing fraud upon the
competent authority, such an order cannot be sustained in the eye of the
law. “Fraud avoids all judicial acts, ecclesiastical or temporal”. It is
further observed and held that dishonesty should not be permitted to
bear the fruit and benefit those persons who have defrauded or
misrepresented themselves and in such circumstances the court should
not perpetuate the fraud by entertaining petitions on their behalf. The
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relevant observations in the said decision are in paras 12, 13, 18 & 25,
which are as under:
12. So far as the issue of obtaining the appointment by misrepresentation
is concerned, it is no more res integra. The question is not whether the
applicant is suitable for the post. The pendency of a criminal
case/proceeding is different from suppressing the information of such
pendency. The case pending against a person might not involve moral
turpitude but suppressing of this information itself amounts to moral
turpitude. In fact, the information sought by the employer if not disclosed
as required, would definitely amount to suppression of material
information. In that eventuality, the service becomes liable to be
terminated, even if there had been no further trial or the person concerned
stood acquitted/discharged.
13. It is a settled proposition of law that where an applicant gets an office
by misrepresenting the facts or by playing fraud upon the competent
authority, such an order cannot be sustained in the eye of the law. “Fraud
avoids all judicial acts, ecclesiastical or temporal.” [Vide S.P.
Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1: AIR 1994 SC 853.] In
Lazarus Estates Ltd. V. Beasley [(1956) 1 QB 702: (1956) 2 WLR 502:
(1956) 1 ALL ER 341 (CA)] the Court observed without equivocation that:
(QB p. 712)
“… No judgment of a court, no order of a Minister can be allowed to stand
if it has been obtained by fraud, for fraud unravels everything.”
18. The ratio laid down by this Court in various cases is that dishonesty
should not be permitted to bear the fruit and benefit those persons who
have frauded or misrepresented themselves. In such circumstances the
court should not perpetuate the fraud by entertaining petitions on their
behalf. In Union of India v. M. Bhaskaran (1995) Supp (4) SCC 100 this
court, after placing reliance upon and approving its earlier judgment in
Vizianagaram Social Welfare Residential School Society v. M. Tripura
Sundari Devi (1990) 3 SCC 655, observed as under: (M. Bhaskaran case,
SCC p. 104, para 6)
If by committing fraud any employment is obtained, the same cannot be
permitted to be countenanced by a court of law as the employment
secured by fraud renders it voidable at the option of the employer.
25. More so, if the initial action is not in consonance with law, the
subsequent conduct of party cannot sanctify the same. Sublato
fundamento cadit opus – a foundation being removed, the superstructure
falls. A person having done wrong cannot take advantage of his own
wrong and plead bar of any law to frustrate the lawful trial by a competent
court. In such a case the legal maxim nullus commodum caprere potest de
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injuria sua propria applies. The persons violating the law cannot be
permitted to urge that their offence cannot be subjected to inquiry, trial or
investigation. [Vide Union of India v. Major General Madan Lal Yadav
(1996) 4 SCC 127:1996 SCC (Cri) 592: AIR 1996 SC 1340 and Lily
Thomas v. Union of India (2000) 6 SCC 224: 2000 SCC (Cri) 1056.] Nor
can a person claim any right arising out of his own wrongdoing (jus ex
injuria non oritur).
8.3 In the case of Jainendra Singh (supra), this Court summarised the
principles to be considered in a case where the appointment is obtained
by misrepresentation and/or suppression of facts by
candidates/appointees as under:
“(i) 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.
(ii) 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 find
not desirable to appoint a person to a disciplined force can it be said to be
unwarranted.
(iii) 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.
(iv) 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.
(v) 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 clear bearing on the character and
antecedents of the candidate in relation to his continuity in service.
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(vi) The person who suppressed the material information and/or gives
false information cannot claim any right for appointment or continuity in
service.
(vii) 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.
(viii) 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.
(ix) An employee in the uniformed service 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.
(x) 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.”
8.4 In the case of Daya Shankar Yadav (supra), this Court had an
occasion to consider the purpose of seeking the information with respect
to antecedents. It is observed and held that the purpose of seeking the
information with respect to antecedents is to ascertain the character and
antecedents of the candidate so as to assess his suitability for the post.
It is further observed that 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 lead to any of the
following consequences:
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“(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.”
Thereafter, it is observed and held that an employee can be discharged
from service or a prospective employee may be refused employment 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).
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8.5 In the case of Abhijit Singh Pawar (supra), when the employee
participated in the selection process, he tendered an affidavit disclosing
the pending criminal case against him. The affidavit was filed on
22.12.2012. According to the disclosure, a case registered in the year
2006 was pending on the date when the affidavit was tendered.
However, within four days of filing such an affidavit, a compromise was
entered into between the original complainant and the employee and an
application for compounding the offence was filed under Section 320
Cr.P.C. The employee came to be discharged in view of the deed of
compromise. That thereafter the employee was selected in the
examination and was called for medical examination. However, around
the same time, his character verification was also undertaken and after
due consideration of the character verification report, his candidature
was rejected. The employee filed a writ petition before the High Court
challenging rejection of his candidature. The learned single Judge of the
High Court of Madhya Pradesh allowed the said writ petition. The
judgment and order passed by the learned single Judge directing the
State to appoint the employee came to be confirmed by the Division
Bench which led to appeal before this Court. After considering catena of
decisions on the point including the decision of this Court in the case of
Avtar Singh (supra), this Court upheld the order of the State rejecting the
candidature of the employee by observing that as held in Avtar Singh
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(supra), even in cases where a truthful disclosure about a concluded
case was made, the employer would still have a right to consider
antecedents of the candidate and could not be compelled to appoint
such candidate. After reproducing and/or re-considering para 38.5 of the
decision in the case of Avtar Singh (supra), in paragraph 13, this Court
observed and held as under:
13. In Avtar Singh (supra), though this Court was principally concerned
with the question as to non-disclosure or wrong disclosure of information,
it was observed in para 38.5 that even in cases where a truthful disclosure
about a concluded case was made, the employer would still have a right to
consider antecedents of the candidate and could not be compelled to
appoint such candidate.
In the said decision, this Court also considered the conduct on the part
of the employee in getting discharge on the basis of the compromise
which was obtained within a period of four days of filing the
affidavit/disclosure. In paragraph 14, it is observed and held as under:
14. In the present case, as on the date when the respondent had applied,
a criminal case was pending against him. Compromise was entered into
only after an affidavit disclosing such pendency was filed. On the issue of
compounding of offences and the effect of acquittal under Section
320(8) of CrPC, the law declared by this Court in Mehar Singh (2013) 7
SCC 685, specially in paras 34 and 35 completely concludes the issue.
Even after the disclosure is made by a candidate, the employer would be
well within his rights to consider the antecedents and the suitability of the
candidate. While so considering, the employer can certainly take into
account the job profile for which the selection is undertaken, the severity of
the charges levelled against the candidate and whether the acquittal in
question was an honourable acquittal or was merely on the ground of
benefit of doubt or as a result of composition.
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9. Applying the law laid down by this Court in the aforesaid decisions
to the facts of the case on hand, the impugned order passed by the
Division Bench dismissing the appeal and confirming the order passed
by the learned single Judge quashing and setting aside the order of
termination terminating the services of the employee on the ground of
non-disclosure/suppression of material fact and filing a false declaration
and directing the appellants to reinstate the respondent-employee is
unsustainable.
10. Apart from the fact that at the time when the respondent applied in
the month of October/November, 2013 though he was already convicted
by the competent court and was given the benefit under Section 3 of the
Act 1958 only, he did not disclose his conviction, but even at the time
when he filed a declaration on 14.04.2015 he filed a false declaration
that neither any criminal case is pending against him nor he has been
convicted by any court of law and relying upon such a declaration the
appellants gave him appointment. Only on police verification/receipt of
the antecedent’s report from the Superintendent of Police, Sawai
Madhopur, the appellants came to know about the conviction of the
respondent. Therefore, the appellants were absolutely justified in
terminating the services of the respondent.
11. Even the conduct on the part of the respondent to obtain the order
subsequently from the learned Sessions Court in an appeal and getting
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the benefit of Section 12 of the Act 1958 deserves consideration. As
observed hereinabove, the judgment and order of conviction by the
learned trial Court was passed as far back as on 5.8.2013. For two
years, the respondent did not file any appeal before the learned
Sessions Court. After a period of approximately two years and after he
obtained the appointment on the basis of the false declaration that
neither any criminal case is pending against him nor he has been
convicted by any court of law and having realised that his conviction and
the benefit granted under Section 3 of the Act 1958 by the learned trial
Court only will come in his way, subsequently after a period of two years
he filed an appeal before the learned Sessions Court on 11.08.29015
and the appeal came to be disposed of within a period of one month,
i.e., on 9.9.2015 and the learned Sessions Court granted the benefit of
Section 12 of the Act 1958. From the judgment and order passed by the
learned Sessions Court, it appears that the respondent only prayed for
giving the benefit of Section 12 of the Act 1958 and nothing was
contended by him with regard to conviction and order of sentence.
Therefore, with a view to get out of the conviction and the benefit of
Section 3 of the Act 1958 only and having realised that his conviction
may come in his way, he preferred an appeal after a period of two years
and obtained the benefit of Section 12 of the Act 1958 which provides
that a person found guilty of an offence and dealt with under the
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provisions of section 3 or section 4 shall not suffer disqualification, if any,
attaching to a conviction of an offence under such law.
Even otherwise, subsequently getting the benefit of Section 12 of
the Act 1958 shall not be helpful to the respondent inasmuch as the
question is about filing a false declaration on 14.04.2015 that neither any
criminal case is pending against him nor he has been convicted by any
court of law, which was much prior to the order passed by the learned
Sessions Court granting the benefit of Section 12 of the Act 1958. As
observed hereinabove, even in case of subsequent acquittal, the
employee once made a false declaration and/or suppressed the material
fact of pending criminal case shall not be entitled to an appointment as a
matter of right.
12. The issue/question may be considered from another angle, from
the employer’s point of view. The question is not about whether an
employee was involved in a dispute of trivial nature and whether he has
been subsequently acquitted or not. The question is about the credibility
and/or trustworthiness of such an employee who at the initial stage of
the employment, i.e., while submitting the declaration/verification and/or
applying for a post made false declaration and/or not disclosing and/or
suppressing material fact of having involved in a criminal case. If the
correct facts would have been disclosed, the employer might not have
appointed him. Then the question is of TRUST. Therefore, in such a
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situation, where the employer feels that an employee who at the initial
stage itself has made a false statement and/or not disclosed the material
facts and/or suppressed the material facts and therefore he cannot be
continued in service because such an employee cannot be relied upon
even in future, the employer cannot be forced to continue such an
employee. The choice/option whether to continue or not to continue
such an employee always must be given to the employer. At the cost of
repetition, it is observed and as observed hereinabove in catena of
decision such an employee cannot claim the appointment and/or
continue to be in service as a matter of right.
13. In view of the afore-stated facts and circumstances of the case,
both, the learned Division Bench as well as the learned Single Judge
have clearly erred in quashing and setting aside the order of termination
terminating the services of the respondent on the ground of having
obtained an appointment by suppressing material fact and filing a false
declaration. The order of reinstatement is wholly untenable and
unjustified.
14. In view of the above and for the reasons stated above, the present
appeals succeed. The impugned judgment and order passed by the
Division Bench, as well as, the order passed by the learned Single
Judge quashing and setting aside the order of termination are hereby
quashed and set aside. Consequently, the writ petition filed by the
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respondent-employee stands dismissed and the order of termination
stands restored. However, in the facts and circumstances of the case,
there shall be no order as to costs.
……………………………………J.
[M.R. SHAH]
NEW DELHI; ……………………………………J.
SEPTEMBER 17, 2021. [A.S. BOPANNA]
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