Disposed

Om Prakash Khatik v. State and Ors.

Rajasthan HC8 May 2018CW/5739/2016

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition seeking direction to join duties as an instructor after suppression of criminal case details. The court directed respondents to reconsider the case within 30 days following Supreme Court precedents regarding trivial false information and activate the appointment if a positive order is passed.

What did the court decide?

Respondents directed to consider petitioner's fresh representation within 30 days; appointment to be activated if positive order is passed.

Om Prakash Khatik Vs State and Ors. — Service and Employment | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 5739 / 2016

Om Prakash Khatik

----Petitioner

Versus

State & Ors

----Respondents

For Petitioner(s) : Mr. J.K. Kaushik

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For Respondent(s) : Mr. BL Bhati, Government Counsel

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Order

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08.05.2018

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The petitioner has preferred this writ petition for the following reliefs :-

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“a) by an appropriate writ, order or direction, the respondents be directed to permit the petitioner to join his duties on the post of Physical Training Instructor Grade II in pursuance of appointment letter dated 06.4.2016 (Annex.5) and he may be allowed with all consequential benefits. Any adverse order, if any, passed during the pendency of this writ petition may be quashed and set aside.

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b) Any other appropriate writ, order or direction which this Hon`ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.

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c) Writ petition filed by the petitioner may kindly be allowed with costs.”

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Counsel for the petitioner at the outset made a limited prayer regarding re-consideration of petitioner’s case in light of

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(2 of 7)

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[CW-5739/2016]

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the direction given by Hon’ble Apex Court in Avtar Singh Vs.

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Union of India & Ors. (Special Leave Petition (C) No.20525/2011 decided on 21.07.2016), wherein following directions were passed :

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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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(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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(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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(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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(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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(a) 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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(b) 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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(c) 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

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(3 of 7)

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[CW-5739/2016]

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may take appropriate decision as to the continuance of the employee.

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(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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(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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(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 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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(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 case 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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(4 of 7)

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[CW-5739/2016]

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& similar view taken by this Court in the case of

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Kamal Singh Meena versus Union of India & Ors. , 2016(3) WLC (Raj.) 687. Relevant para whereof is reproduced as under :-

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15 . This Court has comprehensively dealt with the issue

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of denial of public employment on the ground of pendency of criminal cases, more so where a selected candidate has been acquitted in a criminal case even

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subsequent to his selection. Reference can be made to

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the Judgment in the case of Rai Sahab Vs. State of Rajasthan & Anr. [2013 (3) WLC (Raj.) 483]. Therein considering various Judgments of the Apex Court and this Court it was observed that in the present era of rampant unemployment depriving an individual from the valuable right of employment on unsubstantial grounds would be unjust and a welfare state as a model employer ought not to be allowed to circumvent the rights of a selected candidate by quibbling about aspects which do not go to the root of the matter- unless there has been an

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egregious attempt at fraud and / or misrepresentation to obtain public employment and unless the lacunae found was ex-facie destructive of the suitability of a candidate. This is not so in the present case.

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16 . The caution set out in the Attestation Form stated

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that the furnishing of false information or suppression of

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(5 of 7)

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[CW-5739/2016]

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any factual information in the Attestation Form would be a disqualification likely (emphasis mine) to render the candidate unfit for employment under the Government. The Cambridge Advanced Learner's Dictionary 3 rd Edition defines the work “likely” to mean “probable : possible”. The work “likely” is thus to be understood contra distinguished from the word “definitively” and “inevitably”. The appointing authority thus had a discretion. Incorrect information as in the instant case quite trivial in nature in the context of the fact that no material misstatement (affecting suitability employ ability) had been made by the petitioner in his Attestation Form, was a matter which ought to have engaged the active attention of the Appointing Authority. The Appointing Authority could not without evaluation of the effect of, the nature of allegations, gravity of offences and the petitioner's acquittal about three year prior to the commencement of the recruitment process of Constable have mechanically concluded as it did, that the petitioner was unfit for employment. I am of the considered view that the Appointing Authority was under a duty of

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fairness and reasonableness as mandated by Article 14 of the Constitution of India to take an overall view of the

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matter and the possibility of the petitioner, being from a

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(6 of 7)

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[CW-5739/2016]

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rural background, to mistake an acquittal as non prosecution—

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legality apart a layman can reach this potential conclusion. This has not been done in the instant case and the impugned order dated 19.06.2015 discharging the petitioner has been passed as if out of a slot machine where discharge in the facts of the case was the only inevitable consequence and not a possible consequence of a minor misstatement of fact. I am of the considered view that the judgments relied upon by the counsel for the respondents-Railways turned on their own facts and cannot be construed to mean that even suppression of a piece of information quite irrelevant to the evaluation of the character and antecedents of a candidate must necessarily entail his disqualification and render him unfit for employment under the government. 17 . The above conclusion is buttressed by the fact that the petitioner had nothing to gain from suppressing the factum of his having been prosecuted in a criminal case in which he had been acquitted. The disclosure of the factum of involvement in a criminal case in which the petitioner was acquitted could not even by any stretch of imagination have entailed his being found unsuitable for government service in view of reasons analogous to

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Section 12 of the Act of 1958. If a conviction for all

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(7 of 7)

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[CW-5739/2016]

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offence not grave in nature and following probation

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cannot entail a disability in law, how can acquittal entail

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one ? I am of the view that a suppression of fact can

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entail finding of unsuitability of a candidate in

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government service on that count only in the event the suppression was beneficial. This leads to the conclusion

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that an irrelevant misstatement of fact as in the instant

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case, cannot result in the declaration of an applicant as

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unsuitable for government service. ”

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Counsel for the respondent assures this Court that re-consideration shall be made strictly in accordance with law keeping in mind the aforementioned precedent laws.

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In view of the above, the writ petition is disposed of with the direction to the respondents to consider petitioner’s representation (which is to be filed afresh) within a period of 30 days from today in light of aforementioned precedent law and if any positive order is passed, then the appointment order dated 06.4.2016 shall be activated.

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(DR. PUSHPENDRA SINGH BHATI), J.

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Sanjay

Om Prakash Khatik v. State and Ors.

Case brief

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Om Prakash Khatik v. State and Ors.

Case brief

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