Allowed

Kiran Pal v. State of U.P. and Others

Allahabad HC22 Nov 2019SPLAD/1223/2009

Case brief

AI extract

What is this about?

This court allowed a special appeal against the cancellation of the appellant's police appointment. Setting aside the impugned orders for violating natural justice, the court directed the authority to pass a fresh order after a departmental enquiry and hearing, applying guidelines from the Apex Court case of Avtar Singh regarding suppression of criminal information.

What did the court decide?

Special appeal allowed, impugned orders set aside, respondent directed to pass a fresh order after a departmental enquiry and opportunity of hearing within six weeks.

Kiran Pal Vs State of U.P. and Others — Service and Employment | Allahabad HC (2019)

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Court No. - 4

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In Re : Civil Misc. Delay Condonation Application No. of 2009

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Case :- SPECIAL APPEAL DEFECTIVE No. - 1223 of 2009

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Appellant :- Kiran Pal Respondent :- State of U.P. and Others Counsel for Appellant :- Anoop Trivedi Counsel for Respondent :- C.S.C.

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Hon'ble Bala Krishna Narayana,J. Hon'ble Rohit Ranjan Agarwal,J.

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Heard learned counsel for the applicant-appellant.

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This application has been moved on behalf of the applicant with the prayer to condone the delay in filing this appeal before this Court.

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The delay condonation application is supported by the affidavit of Lal Chand Pandey, Clerk of the counsel for the appellant.

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We have perused the delay condonation application as well as the affidavit filed in support thereof.

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Cause shown for delay in filing the appeal appears to be sufficient.

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Accordingly the delay in filing the appeal is condoned.

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The delay condonation application is allowed.

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Office is directed to allot regular number to this appeal.

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Order Date :- 22.11.2019 SA

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Court No. - 4

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Case :- SPECIAL APPEAL DEFECTIVE No. - 1223 of 2009

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Appellant :- Kiran Pal Respondent :- State of U.P. and Others Counsel for Appellant :- Anoop Trivedi Counsel for Respondent :- C.S.C.

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Hon'ble Bala Krishna Narayana,J. Hon'ble Rohit Ranjan Agarwal,J.

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Heard Sri Anoop Trivedi, Learned Senior Advocate assisted by Sri Abhishek Shukla and Sri Vibhu Rai, learned counsel for the appellant and learned standing counsel for the respondent nos. 1 to 6.

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This special appeal is directed against the order dated 21.08.2009 passed by Learned Single Judge in Civil Misc. Writ Petition No. 1053 of 1999 as well as the order dated 12.12.1998 passed by S.S.P. Bulandshahr cancelling the appellant's selection/appointment on the post of Constable in U.P. Police.

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The only question involved in this appeal is whether the respondent no. 4 was justified in cancelling the petitioner's selection/appointment to the post of Constable in U.P. Police on the ground that he had suppressed material information in the form submitted by him before being sent for training regarding his conviction in a criminal case under Section 60 of Excise Act, without issuing any notice to him and without affording him any opportunity of hearing. There is no dispute amongst the parties that before the impugned order was passed neither the petitioner was given any notice nor he was afforded any opportunity of hearing.

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It has been held in a catena of decision that cancellation of appointment cannot be effected without giving notice to the employee concerned.

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Moreover in a recent decision of the Apex Court rendered in the case of Avtar Singh Vs. Union of India (UOI) and Ors AIR 2016 SC 3598, the Apex Court has laid down detailed guidelines which must be followed by the authority concerned while dealing with such cases after noticing various decisions on the issue.

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Paragraph 27, 28, 29 and 30 of the judgment which are relevant for our purpose are being reproduced herein below :

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" 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.

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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

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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.

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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.

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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:

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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.

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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.

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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 : -

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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.

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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

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cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.

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(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.

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(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.

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(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.

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(11) Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him.

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We answer the reference accordingly. Let the matters be placed before an appropriate Bench for consideration on merits."

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Upon going through the order dated 12.12.1998 passed by respondent no. 4, S.S.P. Bulandshahr, we find that the same was passed by him without either issuing any notice to the appellant or affording him any opportunity of hearing. Learned Single Judge has also failed to address the aforesaid aspect of the matter before affirming the order impugned before him by which appellant's appointment/selection to the post of Constable in U.P. Police was cancelled.

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In view of the foregoing discussions, we allow this special appeal and set aside the order dated 21.08.2009 passed by Learned Single Judge in Civil Misc. Writ Petition No. 1053 of 1999 as well as the order dated 12.12.1998 passed by respondent no. 4, S.S.P. Bulandshahr with a direction to respondent no. 4 to pass a fresh order in the matter strictly in accordance with law in the light of the observations made hereinabove keeping in view the guidelines laid down by the Apex Court in the case of Avtar Singh (supra) after affording opportunity of hearing to the petitioner, within a period of six weeks from today.

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Learned counsel for the appellant has submitted that his client will appear before the respondent no. 4 on 9th December, 2019 and notice need not be send to him.

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Order Date :- 22.11.2019 SA

Kiran Pal v. State of U.P. and Others

Case brief

What is this about?

What did the court decide?

Kiran Pal v. State of U.P. and Others

Case brief

What is this about?

What did the court decide?

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