Allowed

Ram Millan Kushwaha v. State of U.P. and Others

Allahabad HC1 Nov 2019WRIA/30826/1990

Case brief

AI extract

What is this about?

In this writ petition, the petitioner, a police constable, challenged an order terminating his services for allegedly submitting a false affidavit regarding criminal case pendency. The Single Judge held that since the record failed to prove the petitioner had knowledge of the pending case when filing the affidavit, the order could not be sustained. The petition was allowed, and the impugned order

What did the court decide?

The writ petition is allowed and the impugned order dated 29.10.1990 cancelling the petitioner's appointment is quashed.

Ram Millan Kushwaha Vs State of U.P. and Others — Service and Employment | Allahabad HC (2019)

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Court No. - 34

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Case :- WRIT - A No. - 30826 of 1990

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Petitioner :- Ram Millan Kushwaha Respondent :- State of U.P. and Others Counsel for Petitioner :- H.S.N. Tripathi, P.S.Tripathi, P.Tripathi Counsel for Respondent :- S.C.

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Hon'ble Sudhir Agarwal,J.

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Office report shows that original record is not traceable, therefore, it has been reconstructed.

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Reconstructed record shall be treated as part of original record and whenever original record is found, it shall be restored.

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Heard Sri S.K. Mishra, Advocate holding brief of Sri H.S.N. Tripathi, learned counsel for petitioner and learned Standing Counsel for State of U.P.

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Petitioner was appointed as Constable in U.P. Police Force and has qualified in written test held on 27.09.1990 and interview conducted on 03.10.1990. Medical examination was also cleared by him which was held on 06.10.1990 and thereafter he was appointed and sent for training. All of a sudden on 29.10.1990, impugned order was passed informing petitioner that he submitted a false affidavit with regard to pendency of a criminal case. He stated that no criminal is registered or pending against him though Criminal Case No. 100-A of 1989 under Sections 147, 148, 323, 324 IPC was registered and pending in Police Station Rampur Karkhana, District Deoria.

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In the counter affidavit, respondents have placed on record the alleged affidavit of petitioner and in paras- 3 to 7, petitioner has said as under:-

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^^3;g fd eSa dHkh fo/oald dk;ksZ ¼ fMlVªfDVo ,DVhfoVht½ esa Hkkx ugha fy;k FkkA

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4- ;g fd esjs fo:) dksbZ vijkf/kd ¼eqdnek½ ekeyk gLr{ksih; vFkok

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vgLr{ksih; esjh tkudkjh esa u dHkh iathd`r gqvk gS vkSj ugha dHkh fdlh ,sls

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vijkf/kd ekeys esa iqfyl us pkyku fd;k gS rfkk ugha esjs fo:) dksbZ iqfyl foospuk ¼iqfyl bUosLVhxs'ku½ yfEcr gSA

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5- ;g fd dHkh Hkh eq>s vijkf/kd ekeys ¼gLr{ksih; vFkok vgLr{ksih;½ esa fxjQ~rkj ugha fd;k x;k gS] vkSj ugha eSaus dHkh fdlh ,sls vijkf/kd ekeys esa U;k;ky; esa vkReleiZ.k fd;k gSA

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6- ;g fd vijkf/kd ekeys tks esjs fo:) iathd`r gq, gS ;k ftuesa esjh pkyku fd;k x;k Fkk tks esjs fo:) fopkjk/khu U;k;ky; vFkok foospuk/khu iqfyl gks mudk fooj.k 'kwU; gSA

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7- ;g fd vijkf/kd ekeys tks esjs fo:) U;k;ky; esa pys vkSj ftuesa nf.Mr gqvkA nks"k eqDr gqvk fMLpktZ gqvk mudk fooj.k 'kwU; gSA**

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“3That I have never indulged in destructive activities.

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4- That, in my knowledge, no cognizable or non-cognizable criminal case has ever been registered against me, nor have I been challaned by the police in any such matter, and nor is any police investigation pending against me.

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5- That I have never been arrested in connection with any cognizable or non-cognizable offence, nor have I surrendered before the court in relation to any such type of cases.

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6- That details of the criminal offences which may have been registered against me or in which I may have been challaned, or which may be pending against me in the court or which may be under the police investigation, are nil.

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7- That details of the criminal offences which may have proceeded in the court against me, in which I may have been punished, and in which I may have been discharged, are nil.”

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(English Translation by Court)

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Counsel for petitioner submitted that he had no knowledge about the criminal case and, therefore, he said in the affidavit that in his knowledge, no criminal case was registered or pending against him and this is what has been stated in the affidavit.

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However, I find that in the writ petition, petitioner has basically challenged the very factum of filing of any affidavit and the said affidavit placed on record along with counter affidavit.

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In para-6 of rejoinder affidavit, petitioner, however, has said that he had no knowledge or information about the criminal case pending

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upon him. In fact, affidavit itself shows that as per knowledge of petitioner, no criminal case was registered or pending against him.

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In para-11 of counter affidavit, it is stated that petitioner had knowledge about the factum of pendency of criminal case but I find that this paragraph has been sworn on the basis of record and nothing has been placed on record to show that petitioner had any knowledge or information about aforesaid criminal case when he filed said affidavit.

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Moreover, it is informed that aforesaid criminal case has resulted in acquittal. The question of filing of false affidavit would have arisen only when petitioner had knowledge about pendency of criminal case and in the absence of any material placed on record to show that petitioner had knowledge about aforesaid criminal case, it cannot be said that he submitted a false affidavit.

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When a candidate has been proceeded in a criminal case, what information he must disclose and what are consequences of nondisclosure of such disclosure have been considered by a Larger Bench of Apex Court in Avtar Singh Vs. Union of India and Ors. (2016) 8 SCC 471 and in para 38, Court has summarized its conclusion as under :

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“ 38. 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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38.1. Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.

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38.2. While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.

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38.3. The employer shall take into consideration the

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Government orders/ instructions/rules, applicable to the employee, at the time of taking the decision.

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38.4. In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/ verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted : -

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38.4.1. In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.

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38.4.2. Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.

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38.4.3. If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.

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38.5. In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.

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38.6. In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case.

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38.7. In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.

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38.8. If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.

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38.9. In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.

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38.10. 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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38.11. 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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In the present case, respondents have failed to prove that petitioner had knowledge about pendency of criminal case and was guilty of filing false affidavit. Therefore, I do not find that affidavit submitted by petitioner can be said to be a false affidavit or containing wrong information. This Court also informed that pursuant to an interim order passed by this Court, petitioner is working continuously since 1990.

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In the result, writ petition is allowed. Impugned order dated 29.10.1990 is hereby quashed.

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Order Date :- 1.11.2019 Siddhant Sahu

Ram Millan Kushwaha v. State of U.P. and Others

Case brief

What is this about?

What did the court decide?

Ram Millan Kushwaha v. State of U.P. and Others

Case brief

What is this about?

What did the court decide?

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