Dismissed

Anil Bundel v. State of Chhattisgarh

Chhattisgarh HC19 Sept 2023WA/91/2023

Case brief

AI extract

What is this about?

The Court dismissed the appeal against the termination of government service due to suppression of material facts regarding a criminal case. The appellant failed to disclose a pending criminal charge in the verification form and did not provide the acquittal order to prove a clean record, breaching the trust of the employer.

What did the court decide?

The appeal was dismissed and the order of the learned Single Judge upholding the termination of the appellant's services was upheld.

Anil Bundel Vs State of Chhattisgarh — Pension and Retirement Benefits | Chhattisgarh HC (2023)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WA No. 91 of 2023

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Anil Bundel S/o Late Shri Jiwan Lal Bundel Aged About 49 Years R/o Shastri Market, Near Shiv Mandir Raipur, District - Raipur (C.G.)

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---- Appellant

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Versus

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State of Chhattisgarh Through The Secretary, Department of Medical Education, Mantralaya, Dks Bhawan, Now At Mahanadi Bhawan Atal Nagar, Raipur (C.G.)

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Director Medical Education Directorate Medical Education Raipur, District - Raipur (C.G.)

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Principal Government Dental College, Raipur, District - Raipur (C.G.)

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---- Respondents

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(Cause Title taken from Case Information System)

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For Appellant	: Mr. Sudeep Johri, Advocate
For State/Respondents	: Mr. H.S.Ahluwalia, Deputy Advocate General

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Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri N.K.Chandravanshi, Judge

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Judgment on Board

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Per Ramesh Sinha, Chief Justice

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19/09/2023

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1. The appellant/petitioner seeks to challenge the order dated 20.12.2022 passed by the learned Single Judge in Writ Petition (S) No. 3308/2012 whereby his petition seeking quashing of the order dated 16.01.2012 passed by the Principal, Government Dental College, Raipur, by which he was held to be disqualified for government service, has been dismissed.

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2. The facts, in short, as projected by the appellant/petitioner is that the appellant was was appointed on the post of Lab Cleaner after due process of written

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examination with the respondent No.3. The appellant was appointed on probation for 2 years vide order dated 29.08.2009. The character verification from police was made by the respondent and it was found that a case under Section 379/34 of Indian Penal Code, 1860 was registered in the Gol Bazar Police Station and charge sheet was filed. The registration of the crime was admitted by the appellant, however it was pleaded that the appellant was acquitted in the Criminal Case No. 309/2001 along with co-accused namely Firoz S/o Sharif by the Judicial Magistrate First Class, Raipur. Vide impugned order dated 16.01.2012 the services of the appellant was terminated after one month from the date of order. The appellant submitted a representation against the impugned order narrating his grievances. The State/respondents filed their return and it was submitted that a Police verification was conducted and it was found that a criminal case was registered against the present appellant. It was further pleaded that in the verification form and in column 12 the appellant has tender wrong information and obtained the appointment by playing fraud. The appellant had concealed the material fact that he was prosecuted under Section 379/34 of IPC and prayed for dismissal of the writ petition.

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3. Before the learned Single Judge, it was argued by the appellant/petitioner that though there was a criminal case registered against him, however, the offence of Section 379/34 of IPC does not involve any moral turpitude and the appellant was also acquitted from charges way back in the year 2001. Further, his appointment was on probation, he was discharging his duties with utmost sincerity and honesty, therefore, simply because criminal case was registered against him and fact could not be earlier brought to the notice of the respondents it would not make the appellant disqualified from the appointment. He further submits that there was no deliberate suppression of the material facts and looking to the facts and circumstances of the case, the impugned order deserves to be set-aside and quashed and the petition may be allowed. Learned counsel had relied on the decision of the Supreme Court in case of

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' Pawan Kumar v. Union of India and Another , 2022 SCC Online SC 532 and in case of ' Mohammed Imran v. State of Maharashtra and Others ', Civil Appeal No. 10571 of 2018 dated 12.10.2018.

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4. The writ petition was opposed by the State/respondents stating that the appellant was aware of the fact that a criminal case was registered against him. He was tried for offence and this fact has been suppressed by the appellant while submitting the verification form. He also vehemently submits that apart from the verification form, the appellant has also given an affidavit in which he did not disclose with regard to criminal case rather he has stated in the affidavit that till date no case is registered in the Police Station or in any Court only criminal case is neither pending nor decided, hence it is suppression of material facts and the impugned order does not required any interference by this Court. Learned State counsel had placed reliance on the judgment of Supreme Court in case of Kendriya Vidyalaya Sangathan and Others vs. Ram Ratan Yadav (2003) 3 SCC 437 and in judgment of Delhi High Court in case of Balbinder Singh vs. Union of India and Others 2006 SCC Online Del. 1684.

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5. After hearing the learned counsel for the parties, the learned Single Judge dismissed the writ petition relying on the decision of the Supreme Court in the case of Avtar Singh vs. Union of India & Others , (2016) 8 SCC 471, Rajasthan Rajya Vidyut Prasaran Nigam Limited and another v. Anil Kanwariya (2021) 10 SCC 136 and Satish Chandra Yadav v. Union of India and Others {2022 SCC Online SC 1300}, observing as under:

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“ 8. In the light of above authoritative pronouncement of the Hon'ble Supreme Court with regard to suppression of criminal antecedent in obtaining the employment the facts and circumstances of the case in hand is examined. From perusal of the record the following facts emerges :

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(i) Crime under Section 379/34 of IPC was registered against the present appellant and he was tried for the said offence and

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from the documents Annexure P/4 appellant appears to have been acquitted. appellant did not disclose this fact while giving the verification form and also in the affidavit submitted by him before the respondents. He was appointed for two years for probation vide Annexure P/2.

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9. Though in paragraph 8.3 of the writ petition the appellant has pleaded that he has successfully completed his probation period and the return the State has admitted the contention of para 8.3 but perusal of Annexure P/5 and P/6 it indicates that the information with regard to any criminal antecedent was sought prior to completion of his probation period. The appellant and the State did not file any document to substantiate that the probation period of the appellant had come to an end and he was confirmed in the service. Though from the documents appended with the writ petition it appears that the appellant was acquitted but the judgment has not been placed on record to demonstrate whether he was honorably acquitted or by giving benefit of doubt.

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10. The relationship between an employee and employer is of trust and faith. If the trust and faith of the employer is broken by the employee, the employer has right to take appropriate action against the employee. If the criminal antecedent is brought to the notice of the employer, it can take a decision with regard to suitability of the candidate for employment. The case in hand clearly indicates that despite of having knowledge of the fact that an offence was registered against the appellant, he was tried for it and ultimately acquitted has been suppressed by the appellant not only while submitting the verification form but also giving an affidavit in this regard.

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11. Considering the entire facts and circumstances of the case and legal position as enumerated by the various judgments relied above, this Court is of the considered opinion that the appellant is not entitled for any relief from this Court. The authority cited by the counsel for the appellant, with due respect, do not fit into the facts of the case, as in the case of Pawan Kumar (supra) the offence was registered and clean acquittal came to be passed. In the case of Mohammed Imran (supra), no appointment was given to the appellant and he has disclosed the criminal antecedent. Therefore, relying upon the

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judgment of the Hon'ble Supreme Court and the law laid down by the Hon'ble Supreme Court in the case of Kendriya Vidyalaya Sangathan (supra), Avtar Singh (supra), Rajsthan Rajya Vidyut Prasaran Nigam Ltd. (supra) and Satish Chandra Yadav (supra) in the opinion of this Court, the writ petition has no merit and is hereby dismissed. No order as to cost. ”

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6. Mr. Johri, learned counsel for the appellant submits that the appellant was appointed after written examination conducted by the respondent No. 3 on probation vide order dated 29-8-2009. The respondent No. 3 sought declaration from the appellant for character verification and same was submitted by the appellant stating that the said clause is not applicable ( Lagu Nahi ) as per clause 12 of the verification form. The verification form was sent for verification to the Police authorities and subsequently it was brought to the knowledge of the respondents that the appellant was charge-sheeted under Section 379/34 of the Indian Penal Code and he was acquitted in criminal case in 2001. The services of the appellant have been terminated on the aforesaid ground which was challenged by the appellant before the learned Single Bench and after hearing the parties the impugned order was passed and the termination was upheld as legal and proper.

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7. Mr. Johri further submits that the impugned order passed by learned Single Bench is in violation of statutory and legal rights of the appellant and against the factual position of the case. The learned Single failed to consider that the appellant was charge-sheeted 10 years back along with other accused persons wherein he was acquitted and therefore in view of the settled principle by the Supreme Court in the case of Pawan Kumar v. Union of India {Civil Appeal No. 3574/2022 dated 02.05.2022 }, since the criminal case registered against the appellant way back in 2001 and the advertisement for the present employment was issued in 2009 hence a gap of 8 years would itself flow that the said clause is not maintainable against the appellant and therefore he himself mentioned as "Not applicable" ( Lagu Nahi ) but learned Single Judge

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did not appreciated this very aspect and hence the impugned order is not maintainable thus liable to be set aside. Further, the learned Single Judge has erred in allowing the contentions of the respondent State regarding the suppression of criminal antecedents in obtaining the employment, however the appellant did not suppress any material facts regarding the criminal case which was dismissed by the learned Judicial Magistrate First Class by acquitting the appellant from charges way back in 2001- 2002, therefore in view of the judgment passed by the Hon'ble Supreme Court in case of Umesh Chandra Yadav v. The Inspector General and Chief Security Commissioner RPF Northern Railway New Delhi & Others, {Civil Appeal No. 1964/2022, decided on 02.03.2022} since the factual position are pari-materia of the case of the appellant, the learned Single Judge ought to allowed the petition.

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8. Mr. Johri would also argue that the learned Single Judge has erred by not appreciating the judgment passed by the Supreme Court in Mohammed Imran v. State of Maharastra & Others {Civil Appeal No. 10571/2018 dated 12.10.2018} in which the term ‘moral turpitude’ has been discussed. Moreover, the learned Single Judge has dismissed the petition on the the ground that the appellant could not produce the judgment passed by the learned Judicial Magistrate First Class by which the appellant was acquitted of the charges. The another important factual position of the case of the appellant which has not been taken into consideration is the gap between the date of acquittal and the date of advertisement which is more than a decade and in view of the proposition laid down in the case of Mohammed Imran (supra) in para 10, the entire impugned order would not sustain in the eye of law thus illegal, hence liable to be set aside.

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9. Mr. Johiri also relies on a decision of the Supreme Court in Commissioner of Police & Others v. Sandeep Kumar , {(2011) 4 SCC 644, paragraphs 10 to 12} .

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10. On the other hand, Mr. Ahluwalia, learned Deputy Advocate General appearing for the State/respondents would submit that the order passed by the learned Single Judge is absolutely correct warranting no interference. The appellant has not been able to produce the copy of the judgment by which he has been acquitted. Whether the petitioner was honourably acquitted or was acquitted giving benefit of doubt has to be ascertained and in absence of the judgment, the only conclusion that can be arrived at is that the appellant had suppressed the fact of being tried in a criminal case in the verification form which was disclosed only after the police submitted its report.

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11. We have heard learned counsel for the parties, perused the pleadings and documents appended thereto.

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12. This appeal was admitted for hearing on 13.03.2023 and thereafter, the matter was listed on 18.07.2023 on which date, the learned State was granted two weeks time to file the copy of the order/judgment by which the appellant was acquitted. The matter again came up for consideration on 28.08.2023 on which date, the learned counsel for the appellant was granted two weeks time to produce the copy of the order of the learned trial Court. On the said date, the learned State counsel had produced a copy of the letter dated 02.08.2023 of the Station House Officer, Police Station, Golbazar, Raipur, wherein the concerned Station House Officer had informed that the record of the case which was registered way back in the year 1993 and the appellant was put to trial in Criminal Case No. 309/2001 in which an order was passed on 26.08.2002 acquitting the accused from the charges levelled against him, was weeded out and as such, it was not possible for the State/respondent to produce the records.

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13. Fact of the matter remains that the appellant, while he was aware that a criminal case was registered against him and he was tried for the offence punishable under Section 379/34 IPC, has suppressed this fact while

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submitting the verification form. This conduct of the appellant is sufficient to hold him disqualified for the government service as any candidate who is desirous of getting Government employment must disclose all the facts truthfully. The petitioner had given an affidavit in which he did not disclose the fact with regard to the criminal case rather he has stated in the affidavit that till date, no case was registered in the Police Station nor in any Court any criminal case is pending nor decided. This is a clear case of suppressio veri - expressio falsi which means a suppression of truth is equivalent to an expression of falsehood. The Court cannot come to rescue of a litigant who himself has concealed the fact and tried to obtain government employment by fraud. It may be true that the appellant was acquitted of the charges, but the appellant failed to mention this fact in the verification form. Further, the learned State counsel as well as the learned counsel for the appellant were given time to produce a copy of the order of acquittal which both the parties could not furnish. In absence of any such order/judgment, it is not possible for this Court to arrive at a conclusion as to whether the appellant was honourably acquitted of the charges or was acquitted on any technical ground or was given the benefit of doubt.

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14. The learned Single Judge, in the concluding paragraph of his judgment has distinguished the case of the appellant with that of Mohammad Imran (supra) and has rightly relied on the judgment of the Supreme Court in Kendriya Vidyalaya Sangathan (supra), Avtar Singh (supra), Rajasthan Vidyut Prasaran Nigam Ltd . (supra) and Satish Chandra Yadav (supra).

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15. In view of the difference of opinion expressed in several decisions, the Supreme Court, in Jainendra Singh v. State of Uttar Pradesh {(2012) 8 SCC 748} decided to refer the issue to a larger Bench for an authoritative pronouncement on the question of suppression of information / submitting false information in the verification form by an aspirant of a job when the incumbent has faced criminal prosecution or had been arrested or on account of pendency of criminal case. A three-Judges Bench of the Supreme Court in Avtar Singh (supra),

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after examining different views expressed by Benches of the Supreme Court from time to time, laid down some broad guidelines to be applied, which reads 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 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

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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

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false information as to a fact which was not even asked for. 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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16. In Daya Shankar Yadav v. Union of India & Others {(2010) 14 SCC 103} the purpose of seeking information with respect to antecedents of a candidate has been discussed. It was observed therein that the same were essential so as to ascertain the suitability for the post and the disclosures made in the verification form relating to the character and antecedents of the candidate can result in the following consequences:

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“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:

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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.

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(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.

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(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

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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.

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(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.”

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17. The Supreme Court, in State of Madhya Pradesh and Others v. Abhijit Singh Pawar {(2018) 18 SCC 733}, after referring to the decisions in Commissioner of Police, New Delhi & Another v. Mehar Singh {(2013) 7 SCC 685} , R.K. Kapur v. Union of Indian and Another {AIR 1964 SC 787} , State of Madhya Pradesh and Others v. Parvez Khan {(2015) 2 SCC 591} and Avtar Singh (supra) observed thus:

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“13. In Avtar Singh, though this Court was principally concerned with the question as to non-disclosure or wrong disclosure of information, it was observed in paragraph 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.

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xxx xxx xxx

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16. We must observe at this stage that there is nothing on record to suggest that the decision taken by the concerned authorities in rejecting the candidature of the respondent

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was in any way actuated by mala fides or suffered on any other count. The decision on the question of suitability of the respondent, in our considered view, was absolutely correct and did not call for any interference. We, therefore, allow this appeal, set aside the decisions rendered by the Single Judge as well as by the Division Bench and dismiss Writ Petition No. 9412 of 2013 preferred by the respondent. No costs.”

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18. Further, in Rajasthan Rajya Vidyut Prasaran Nigam Limited and another

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(supra), the employer had invited applications and the respondent therein was appointed as a probationer trainee. In the police verification it was found that he was convicted by the Trial Court for the offences under Sections 323 and 341 of the IPC but was granted benefit under the Probation of Offenders Act, 1958 and released on good conduct. The Supreme Court observed that at the time of submitting an application for appointment, the respondent had already suffered a conviction by the competent Court which fact was withheld by him and he had given a false declaration. In the said case, the Supreme Court had expressed a view that even where there was a subsequent acquittal, the employee having furnished false information or suppressed material fact of pending criminal case, cannot claim appointment as a matter of right. It was observed thus:

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“14. 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 situation, where the employer feels that an employee who at the initial

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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.”

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19. The appellant herein had suppressed in his verification form that he was tried for a criminal offence however, later he was acquitted of the criminal charges. Even after granting opportunity, neither the appellant nor the respondent/State could produce the copy of the judgment of acquittal in order to ascertain as to the nature of acquittal of the appellant, whether it was honourable acquittal or was acquitted giving benefit of doubt. We are, therefore, of the opinion that mere acquittal of the appellant in the criminal case would not automatically entitle him for being declared fit for appointment. The decision of the respondents in holding the appellant disqualified for the government employment is not tainted by any malafides or arbitrariness.

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20. Thus, in the given facts and circumstances of the case and applying the ratio laid down by the Supreme Court in the cases referred hereinabove, we do not find any merit in this appeal and the order passed by the learned Single Judge is upheld.

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21. As a result, this appeal is dismissed .

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Sd/Sd/- (N.K.Chandravanshi) (Ramesh Sinha) JUDGE CHIEF JUSTICE

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Amit

Anil Bundel v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Anil Bundel v. State of Chhattisgarh

Case brief

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What did the court decide?

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