RAJYA VIDYUT PRASARAN NIGAM LIMITED AND ANOTHER versus ANIL KANWARIYA

[2021] 7 S.C.R.

ARAJASTHAN RAJYA VIDYUT PRASARAN NIGAM LIMITEDAND ANOTHER

ANIL KANWARIYA

B(Civil Appeal Nos. 5743-5744 of 2021)

SEPTEMBER 17, 2021

[M. R. SHAH AND A. S. BOPANNA, JJ.]

Service Law – Termination from services – Non-disclosure/suppression of material fact and filing false declaration –CAppellants invited applications for the post of Technical Helper –Respondent-employee was appointed for the said post as aprobationer trainee for period of two years – As per theappointment order, the respondent was required to produce acharacter certification/verification report issued by theDSuperintendent of Police (SP) of the concerned District fromwhere he belonged – SP informed the appellants that the respondentwas convicted by the trial Court for the offences u/s 341, 323 IPC,however, given the benefit under the Probation of Offenders Act,1958 and the respondent-employee was ordered to be released onprobation for good conduct – Having found that the respondentEdeliberately suppressed the fact of conviction and penalty, not onlyat the time of applying post, but also when he submitted declarationduring documents verification that neither criminal case is pendingagainst him nor he has suffered any conviction by any court of lawin any criminal case – Appellant was terminated – Writ Petition –FThe High Court quashed and set aside the order of the terminationand directed reinstatement of the respondent – On appeal, held: Atthe time when respondent-employee submitted the application forappointment, he did not disclose the fact that he already suffered aconviction by the Competent Court but in fact, false declarationwas filed that neither any criminal case is pending against him norGhe has been convicted by any Court of law – It is only after thepolice verification, the appellants came to know about the convictionof the respondent – Therefore, the appellants were absolutelyjustified in terminating the services of the respondent – The questionis about the credibility and/or trustworthiness of such an employee,H

the question is of TRUST – The order of reinstatement is whollyuntenable and unjustified.

Allowing the appeals, this Court

HELD: 1. Applying the law laid down by this Court in thevarious decisions to the facts of the case on hand, the impugnedorder passed by the Division Bench dismissing the appeal andconfirming the order passed by the Single Judge quashing andsetting aside the order of termination terminating the servicesof the employee on the ground of non-disclosure/suppression ofmaterial fact and filing false declaration and directing theappellants to reinstate the respondent-employee is unsustainable.[Para 9][728-B-D]

2. Apart from the fact that at the time when the respondentapplied in the month of October/November, 2013 though he wasalready convicted by the competent court and was given thebenefit under Section 3 of the Act 1958 only, he did not disclosehis conviction, but even at the time when he filed declarationon 14.04.2015 he filed false declaration that neither any criminalcase is pending against him nor he has been convicted by anycourt of law and relying upon such declaration the appellantsgave him appointment. Only on police verification/receipt of theantecedent’s report from the Superintendent of Police, theappellants came to know about the conviction of the respondent.Therefore, the appellants were absolutely justified in terminatingthe services of the respondent. [Para 10][728-D-F]3. Even the conduct on the part of the respondent to obtainthe order subsequently from the Sessions Court in an appeal andgetting the benefit of Section 12 of the Act 1958 deservesconsideration. The judgment and order of conviction by the trialCourt was passed as far back as on 5.8.2013. For two years, therespondent did not file any appeal before the Sessions Court.After period of approximately two years and after he obtainedthe appointment on the basis of the false declaration that neitherany criminal case is pending against him nor he has been convictedby any court of law and having realised that his conviction and thebenefit granted under Section 3 of the Act 1958 by the trial Court

Aonly will come in his way, subsequently after period of two yearshe filed an appeal before the Sessions Court on 11.08.29015 andthe appeal came to be disposed of within period of one month,i.e., on 9.9.2015 and the Sessions Court granted the benefit ofSection 12 of the Act 1958. From the judgment and order passedby the Sessions Court, it appears that the respondent only prayedBfor giving the benefit of Section 12 of the Act 1958 and nothingwas contended by him with regard to conviction and order ofsentence. Therefore, with view to get out of the conviction andthe benefit of Section 3 of the Act 1958 only and having realisedthat his conviction may come in his way, he preferred an appealCafter period of two years and obtained the benefit of Section 12of the Act 1958 which provides that person found guilty of anoffence and dealt with under the provisions of section 3 or section4 shall not suffer disqualification, if any, attaching to convictionof an offence under such law. [Para 11][728-F-H; 729-A-D]

D4. The issue/question may be considered from anotherangle, from the employer’s point of view. The question is notabout whether an employee was involved in dispute of trivialnature and whether he has been subsequently acquitted or not.The question is about the credibility and/or trustworthiness ofsuch an employee who at the initial stage of the employment,Ei.e., while submitting the declaration/verification and/or applyingfor post made false declaration and/or not disclosing and/orsuppressing material fact of having involved in criminal case. Ifthe correct facts would have been disclosed, the employer mightnot have appointed him. Then the question is of TRUST.FTherefore, in such situation, where the employer feels that anemployee who at the initial stage itself has made false statementand/or not disclosed the material facts and/or suppressed thematerial facts and therefore he cannot be continued in servicebecause such an employee cannot be relied upon even in future,the employer cannot be forced to continue such an employee.GThe choice/option whether to continue or not to continue suchan employee always must be given to the employer. It is observedand as observed hereinabove in catena of decision such an

RAJASTHAN RAJYA VIDYUT PRASARAN NIGAM LIMITED ANDANOTHER v. ANIL KANWARIYA

employee cannot claim the appointment and/or continue to be inservice as matter of right. [Para 12][729-F-H; 730-A-B]

Devendra Kumar v. State of Uttaranchal, (2013) 9 SCC363 : [2013] 8 SCR 471; Jainendra Singh v. State ofU.P., (2012) 8 SCC 748 : [2012] 6 SCR 1047; DayaShankar Yadav v. Union of India, (2010) 14 SCC 103: [2010] 13 SCR 1076; Avtar Singh v. Union of India,(2016) 8 SCC 471 : [2016] 7 SCR 445 – relied on.

Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav,(2003) 3 SCC 437 : [2003] 2 SCR 361; Secretary,Department of Home Secretary, A.P. v. B. ChinnamNaidu, (2005) 2 SCC 746 : [2005] 1 SCR 1147; Stateof M.P. v. Abhijit Singh Pawar, (2018) 18 SCC 733 :[2018] 13 SCR 1133; T. S. Vasudavan Nair v. Directorof Vikram Sarabhai Space Centre, (1988) Suppl. SCC795; Commissioner of Police v. Sandeep Kumar, (2011)4 SCC 644 : [2011] 3 SCR 964 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.5743-5744 of 2021.

From the Judgment and Order dated 05.09.2019 of the High Courtof Judicature of Rajasthan Bench at Jaipur in D.B. Special Appeal WritNo.560 of 2019 in S.B. Civil Writ Petition No.6969 of 2016 and FinalJudgment and Order dated 05.12.2019 in D.B. Review Petition (Writ)

ANo.250 of 2019 in D.B. Civil Special Appeal Writ No.560 of 2019 inS.B. Civil Writ Petition No.6969 of 2016.

Dr. Manish Singhvi, Sr. Adv., Sandeep Kumar Jha, Advs. for theAppellants.

Navin Prakash, Ved Vyas Tripathi, Advs. for the Respondent.BThe Judgment of the Court was delivered by

M. R. SHAH, J.

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgmentCand order dated 05.09.2019 passed by the High Court of Judicature forRajasthan, 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 hasdismissed the said appeal and has confirmed the judgment and orderDpassed by the learned Single Judge dated 23.01.2019 by which the learnedSingle Judge allowed the said writ petition preferred by the respondentherein and quashed and set aside the order of termination terminatingthe services of the respondent – employee herein – original writ petitioneron the ground of suppression of material facts of conviction and penaltyat the time of applying for the post in 2013 and also submitting falseEdeclaration at the time of documents verification on 14.04.2015, theemployer – Rajasthan Rajya Vidyut Prasaran Nigam Limited and anotherhave preferred the present appeal.

3. That the appellants herein invited applications for the post ofTechnical Helper by issuing advertisement in the month of October, 2013.FPursuant to the said advertisement, respondent herein – employee appliedfor the said post. The written test was held on 02.02.2014 and result ofwhich was declared on 31.03.2015. The date fixed for the documents’verification was 14.04.2015. The respondent herein having qualified forthe said post was appointed as Technical Helper as probationer traineeGfor period of two years on 06.05.2015 and was placed underSuperintending Engineer, RVPN, Jodhpur. As per condition No. 16 ofthe terms and conditions of the appointment order, the appointment ofthe respondent was subject to production of character certification/verification report issued by the Superintendent of Police of the concernedDistrict where he belongs. The Superintendent of Police, Sawai MadhopurH

vide police verification/antecedents report dated 5.6.2015 informed theappellants that Case bearing No. 13/2011 against the respondent-employee for the offences under Sections 143, 341, 323 IPC in which achargesheet was filed against the respondent-employee on 17.01.2011and the learned trial Court convicted the respondent-employee videjudgment and order dated 5.8.2013, convicting him for the offences underSections 341 and 323 IPC, however, given the benefit under the Probationof Offenders Act, 1958 (hereinafter referred to as “Act 1958”). Whilegiving the benefit of Act 1958, the respondent-employee was ordered tobe released on probation for good conduct.

It is to be noted that even subsequently such conviction of therespondent-employee came to be confirmed, however, the learnedSessions Judge vide judgment dated 09.09.2015 granted the benefit ofSection 12 of the Act 1958 to the respondent-employee which providesthat person shall not suffer disqualification attaching to the conviction.

3.1 Having found that the respondent-employee deliberatelysuppressed the fact of conviction and penalty, not only at the time ofapplying for the post, but also on 14.04.2015 whereby he submitted adeclaration during documents verification that neither criminal case ispending against him nor he has suffered any conviction by any court oflaw in any criminal case and finding concealment of facts of criminalcase, the appellants issued show cause notice dated 31.08.2015 to therespondent-employee and granted him an opportunity of being heard on15.03.2016 and having found that in view of suppression of material factof not disclosing his conviction by the competent court, respondent-employee shall not be continued in service and therefore vide order dated6.5.2016, the appellants terminated the services of the respondent-employee.

3.2 Aggrieved by the order of termination, the respondent-employeepreferred Writ Petition No. 6969 of 2016 before the learned Single Judgeof the High Court. The learned Single Judge of the High Court solelyrelying 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 orderdated 9.9.2015 passed by the learned Sessions Judge in appeal grantingbenefit of Section 12 of the Act 1958, allowed the writ petition and quashedand set aside the order of termination and directed the appellants toreinstate the respondent-employee with all consequential benefits.

A3.3 Feeling aggrieved and dissatisfied with the judgment and orderpassed by the learned Single Judge, quashing and setting aside the orderof termination and directing the appellants to reinstate the respondent-employee, the appellants-employer preferred appeal before the DivisionBench being D.B. Special Appeal Writ No. 560 of 2019. The DivisionBench also solely relying upon para 38.4.1 of the decision of this CourtBin the case of Avtar Singh (supra) and observing that the employeewas held guilty in dispute of trivial nature with his father, uncle, brotherand cousin and as it was trivial nature dispute and such disputewhich even if disclosed could have been ignored by the employer becauseof the benefit of Section 12 of the Act 1958, the Division Bench by theCimpugned judgment and order has dismissed the said appeal and hasconfirmed 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 beendismissed.

D4. Dr. Manish Singhvi, learned Senior Advocate has appeared onbehalf of the appellants and Mr. Navin Prakash, Advocate has appearedon behalf of the respondent-employee.

4.1 Dr. Manish Singhvi, learned Senior Advocate appearing onbehalf of the appellants-employer has vehemently submitted that in theEfacts and circumstances of the case, both, the learned Single Judge aswell as the Division Bench have materially erred in quashing and settingaside the order of termination mainly relying upon the decision of thisCourt in the case of Avtar Singh (supra) and considering the subsequentorder passed by the learned Sessions Court granting the benefit of Section12 of the Act 1958.F

4.2 It is further submitted that, as such, in the facts andcircumstances of the case, the decision of this Court in the case ofAvtar Singh (supra) shall not be applicable at all. It is submitted that onthe contrary it supports the case of the appellants.G4.3 It is further submitted that in the present case at the timewhen the respondent-employee applied for the advertised post, he wasalready convicted for the offences under Sections 341 and 323 IPC bythe competent criminal court which he did not disclose. It is submittedthat even thereafter also when he submitted the declaration at the timeof documents verification on 14.04.2015, the respondent-employee thoughH

already suffered conviction for the offences under Sections 341 and323 IPC and at that time, i.e., on 14.04.2015, only the benefit underSections 3 & 4 of the Act 1958 was given, he filed false declaration. Itis submitted that the learned trial Court did not grant the benefit of Section12 of the Act 1958, which benefit of Section 12 of the Act 1958 wasgiven only vide judgment and order dated 9.9.2015 by the learned SessionsJudge. It is submitted that as the respondent-employee suppressed thematerial fact of criminal case firstly in the year 2013 when he submittedthe application and thereafter subsequently on 14.04.2015 when hesubmitted the declaration at the time of documents verification andthereafter when the services of the respondent were terminated aftergiving him an opportunity of being heard, the same ought not to haveinterfered with by the learned Single Judge and thereafter by the DivisionBench.

4.4 It is further submitted that the High Court has materially erredin even considering the subsequent decision of the learned Sessions Courtin appeal granting the benefit of Section 12 of the Act 1958. It is submittedthat the date on which the respondent applied for the said post and evensubmitted the declaration, there was no order passed by the learnedSessions Court granting the benefit of Section 12 of the Act 1958 and atthat time the order passed by the learned trial Court granting the benefitof Sections 3 & 4 of the Act 1958 was subsisting. Therefore, the HighCourt ought not to have relied upon and/or taken into consideration thesubsequent decision of the learned Sessions Judge dated 9.9.2015 grantingthe benefit of Section 12 of the Act 1958.

4.5 It is further submitted by the learned senior counsel appearingon behalf of the appellants that the matter may be looked at from anotherangle. It is submitted that when the employee initially suppressed thematerial fact and obtained the appointment fraudulently, thereafter it is acase of trustworthiness, reliability and credibility of such an employee.It is submitted that if the employee would have disclosed at the relevanttime that he is facing the criminal trial and/or he has been convicted, inthat case from the very inception, the employer would not have employedhim. It is submitted that therefore the employer is justified in not continuingsuch an employee who has suppressed the material fact at the relevanttime, on the premise that such person cannot be trusted thereafter andcannot be continued in service.

A4.6 It is further submitted that even the observations made by theDivision Bench in the impugned judgment that the dispute for which theemployee was convicted was trivial nature dispute and such disputewhich even if disclosed could have been ignored by the employer becauseof the benefit of Section 12 of the Act 1958 given to him is absolutelyirrelevant, it is submitted that such reasoning is not germane. It isBsubmitted that such an observation is on the basis of surmises andconjectures that what could have been done by the employer.

4.7 Making the above submissions and relying upon the decisionsof this Court in the cases of Kendriya Vidyalaya Sangathan v. RamRatan Yadav, (2003) 3 SCC 437; Secretary, Department of HomeCSecretary, A.P. v. B. Chinnam Naidu, (2005) 2 SCC 746; DayaShankar Yadav v. Union of India, (2010) 14 SCC 103; JainendraSingh v. State of U.P., (2012) 8 SCC 748; Devendra Kumar v. Stateof Uttaranchal, (2013) 9 SCC 363; and State of M.P. v. AbhijitSingh Pawar, (2018) 18 SCC 733, it is prayed to allow the presentDappeals and quash and set aside the impugned judgment and order passedby the Division Bench and consequently quash and set aside the judgmentand order passed by the learned Single Judge and consequently dismissthe writ petition filed by the respondent-employee before the High Court.

5. The present appeals are vehemently opposed by Shri NavinEPrakash, learned Advocate appearing for the respondent-employee. Itis submitted that in the facts and circumstances of the case and moreparticularly the order passed by the learned Sessions Court granting thebenefit under Section 12 of the Act 1958 and considering the fact thatthe dispute was of trivial nature with the family members, the learnedSingle Judge rightly set aside the order of termination which has beenFrightly confirmed by the Division Bench.

5.1 It is further submitted that the order passed by the learnedSingle Judge, confirmed by the Division Bench, is absolutely in consonancewith the decision of this Court in the case of Avtar Singh (supra), moreparticularly para 38.4.1 of the said decision.G

5.2 It is further submitted by the learned counsel that evenotherwise the omission or the lapse committed on the part of therespondent was neither intentional nor deliberate, rather it was underbonafide belief that in view of the benefit granted to the respondentunder the provisions of section 3 of the Act 1958 by the learned trialH

Court, the respondent has not incurred disqualification. It is submittedtherefore the said omission or the lapse deserves to be condoned bytaking lenient view. Heavy reliance is placed on the decisions of thisCourt in the cases of T.S. Vasudavan Nair v. Director of VikramSarabhai Space Centre, 1988 Supp. SCC 795; Commissioner ofPolice 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 heldby the learned Single Judge in judgment and order dated 23.01.2019, theemployer – appellants herein did not at all consider the case of therespondent as regard to the extenuating circumstances and the benefitgranted to him under sections 3 & 12 of the Act 1958 by the learned trialCourt and the learned sessions Court.

5.4 Making the above submissions and relying upon the aforesaiddecisions, it is prayed to dismiss the present appeals.

6. We have heard the learned counsel for the respective partiesat length.

At the outset, it is required to be noted that the appellants herein –employer terminated the services of the respondent on non-disclosureof the pending criminal case against him at the time when he submittedthe application for appointment, submitted in the month of October/November, 2013 and thereafter in the declaration dated 14.04.2015. Asobserved hereinabove, the respondent was chargesheeted for theoffences under Sections 143, 341 and 323 IPC vide chargesheet dated17.01.2011. The learned trial Court convicted the respondent for theoffences under Sections 341 & 323 IPC, vide judgment and order dated5.8.2013. However, granted the benefit under Section 3 of the Act 1958only. In the month of October, 2013, the appellants issued an advertisementfor the post of Technical Helper and the last date for submission of theapplication was 14.11.2013. Pursuant to the said advertisement, therespondent applied for the said post and the written test was held on02.02.2014 and the result of which was declared on 31.03.2015. Therespondent submitted declaration on 14.04.2015 declaring that neitherany criminal case is pending against him nor he has been convicted byany court of law. The date fixed for documents verification was14.04.2015 and along with the documents verification he was requiredto file declaration which he submitted stating that neither any criminal

Acase is pending against him nor he has been convicted by any court oflaw. Therefore, on the date of submitting an application and even at thetime when declaration was filed on 14.04.2015, there was already anorder of conviction against him. Even at the relevant time, the benefit ofSection 12 of the Act 1958 was not granted to the respondent, whichwas given subsequently vide judgment of the learned Sessions CourtBdated 09.09.2015.

6.1 At this stage, it is required to be noted that the show causenotice dated 31.08.2015was followed after the employer received thepolice verification/antecedents report dated 5.6.2015 of the Superintendentof Police, Sawai Madhopur disclosing that the respondent was alreadyCconvicted by the learned trial Court vide judgment and order dated5.8.2013 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 convictionimposed by the learned trial Court and granted the benefit of Section 3of the Act 1958 only, the same shall come in his way, belatedly theDrespondent preferred an appeal before the learned Sessions Court on11.08.2015, challenging the judgment and order of conviction passed bythe learned trial Court dated 5.8.2013, i.e., after period of two years.That by judgment and order dated 9.9.2015, the learned Sessions Courtallowed the said appeal partly, however granted the benefit of Section12 of the Act 1958, as prayed.E

6.2 From the judgment and order passed by the learned SessionsCourt, it appears that only submission on behalf of the respondent waswith respect to granting the benefit of Section 12 of the Act 1958 andthe appeal came to be disposed of by the learned Sessions Court withina period of one month from the date of filing of the appeal, though theFjudgment and order of conviction by the learned trial Court was passedin the year 2013. Therefore, it appears that only with view to get out ofthe disqualification of conviction, belatedly he preferred an appeal andobtained 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 ofGSection 12 of the Act 1958 subsequently by that itself the respondentcannot get away of the allegations of suppression of material fact andfiling false declaration that neither any criminal case is pending againsthim nor he has been convicted by any court of law, which was filed on14.04.2015.6.3 Thus, at the time when he submitted the application forappointment in the month of October/November 2013, the respondentalready suffered conviction by the competent court which not only hedid not disclose, but in fact, false declaration was filed that neither anycriminal case is pending against him nor he has been convicted by anycourt 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 show cause notice and an opportunityof being heard to the respondent, the employer terminated the servicesof the respondent on the ground of non-disclosure /suppression of materialfact and filing false declaration.

7. In light of the aforesaid facts, the orders passed by the learnedDivision Bench as well as the learned Single Judge of the High Courtand the reliance placed upon the decision of this Court in the case ofAvtar Singh (supra), relied upon on behalf of the respondent-employee,are required to be considered.

8. While considering the aforesaid issues, few decisions of thisCourt on appointment obtained by fraud/misrepresentation and/orappointment obtained by suppression of material facts are required to bereferred to and considered.

8.1 In the case of B. Chinnam Naidu (supra), this Court hasobserved that the object of requiring information in the attestation formand the declaration thereafter by the candidate is to ascertain and verifythe character and antecedents to judge his suitability to enter into orcontinue in service. It is further observed that when candidate suppressesmaterial information and/or gives false information, he cannot claim anyright for appointment or continuance in service.

8.2 In the case of Devendra Kumar (supra), while joining thetraining, the employee was asked to submit an affidavit giving certaininformation, particularly, whether he had ever been involved in anycriminal case. The employee submitted an affidavit stating that he hadnever been involved in any criminal case. The employee completed histraining satisfactorily and it was at this time that the employer in pursuanceof the process of character verification came to know that the employeewas in fact involved in criminal case. It was found that the final reportin that case had been submitted by the prosecution and accepted by theJudicial Magistrate concerned. On the basis of the same, the employee

Awas discharged abruptly on the ground that since he was temporarygovernment servant, he could be removed from service without holdingan enquiry. The said order was challenged by the employee by filing awrit petition before Single Judge of the High Court which was dismissed.The Division Bench upheld that order, which was the subject matter ofappeal before this Court. Dismissing the appeal, this Court observed andBheld that the question is not whether the employee is suitable for thepost. The pendency of criminal case/proceeding is different fromsuppressing the information of such pendency. The case pending againsta person might not involve moral turpitude but suppressing of thisinformation itself amounts to moral turpitude. It is further observed thatCthe information sought by the employer if not disclosed as required, woulddefinitely amount to suppression of material information and in thateventuality, the service becomes liable to be terminated, even if therehad been no further trial or the person concerned stood acquitted/discharged. It is further observed by this Court in the said decision thatwhere an applicant/employee gets an order by misrepresenting the factsDor by playing fraud upon the competent authority, such an order cannotbe sustained in the eye of the law. “Fraud avoids all judicial acts,ecclesiastical or temporal”. It is further observed and held that dishonestyshould not be permitted to bear the fruit and benefit those persons whohave defrauded or misrepresented themselves and in such circumstancesEthe court should not perpetuate the fraud by entertaining petitions ontheir behalf. The relevant observations in the said decision are in paras12, 13, 18 & 25, which are as under:

12. So far as the issue of obtaining the appointment bymisrepresentation is concerned, it is no more res integra. TheFquestion is not whether the applicant is suitable for the post. Thependency of criminal case/proceeding is different fromsuppressing the information of such pendency. The case pendingagainst person might not involve moral turpitude but suppressingof this information itself amounts to moral turpitude. In fact,the information sought by the employer if not disclosed as required,Gwould 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 concernedstood acquitted/discharged.

13. It is settled proposition of law that where an applicant getsan office by misrepresenting the facts or by playing fraud uponthe competent authority, such an order cannot be sustained in theeye of the law. “Fraud avoids all judicial acts, ecclesiastical ortemporal.” [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 court, no order of Minister can be allowedto stand if it has been obtained by fraud, for fraud unravelseverything.”

18. The ratio laid down by this Court in various cases is thatdishonesty should not be permitted to bear the fruit and benefitthose persons who have frauded or misrepresented themselves.In such circumstances the court should not perpetuate the fraudby entertaining petitions on their behalf. In Union of India v. M.Bhaskaran (1995) Supp (4) SCC 100 this court, after placingreliance upon and approving its earlier judgment in VizianagaramSocial Welfare Residential School Society v. M. Tripura SundariDevi (1990) 3 SCC 655, observed as under: (M. Bhaskaran case,SCC p. 104, para 6)

If by committing fraud any employment is obtained, the samecannot be permitted to be countenanced by court of law as theemployment secured by fraud renders it voidable at the option ofthe employer.

25. More so, if the initial action is not in consonance with law, thesubsequent conduct of party cannot sanctify the same. Sublatofundamento cadit opus – foundation being removed, thesuperstructure falls. person having done wrong cannot takeadvantage of his own wrong and plead bar of any law to frustratethe lawful trial by competent court. In such case the legalmaxim nullus commodum caprere potest de injuria sua propriaapplies. The persons violating the law cannot be permitted to urgethat their offence cannot be subjected to inquiry, trial orinvestigation. [Vide Union of India v. Major General Madan LalYadav (1996) 4 SCC 127:1996 SCC (Cri) 592: AIR 1996 SC 1340and Lily Thomas v. Union of India (2000) 6 SCC 224: 2000 SCC

A(Cri) 1056.] Nor can person claim any right arising out of hisown wrongdoing (jus ex injuria non oritur).

8.3 In the case of Jainendra Singh (supra), this Court summarisedthe principles to be considered in case where the appointment is obtainedby misrepresentation and/or suppression of facts by candidates/Bappointees as under:

“(i) Fraudulently obtained orders of appointment could belegitimately treated as voidable at the option of the employer orcould be recalled by the employer and in such cases merelybecause the respondent employee has continued in service for aCnumber of years, on the basis of such fraudulently obtainedemployment, cannot get any equity in his favour or any estoppelagainst the employer.

(ii) Verification of the character and antecedents is one of theimportant criteria to test whether the selected candidate is suitableto the post under the State and on account of his antecedents theappointing authority if find not desirable to appoint person to adisciplined force can it be said to be unwarranted.

(iii) When appointment was procured by person on the basis offorged documents, it would amount to misrepresentation and fraudEon the employer and, therefore, it would create no equity in hisfavour or any estoppel against the employer while resorting totermination without holding any inquiry.

(iv) candidate having suppressed material information and/orgiving false information cannot claim right to continue in serviceFand the employer, having regard to the nature of employment aswell as other aspects, has the discretion to terminate his services.

(v) The purpose of calling for information regarding involvementin any criminal case or detention or conviction is for the purposeof verification of the character/antecedents at the time ofrecruitment and suppression of such material information will haveGclear bearing on the character and antecedents of the candidatein relation to his continuity in service.

(vi) The person who suppressed the material information and/orgives false information cannot claim any right for appointment orcontinuity in service.

(vii) The standard expected of person intended to serve inuniformed service is quite distinct from other services and,therefore, any deliberate statement or omission regarding vitalinformation can be seriously viewed and the ultimate decision ofthe appointing authority cannot be faulted.

(viii) An employee on probation can be discharged from serviceor may be refused employment on the ground of suppression ofmaterial information or making false statement relating to hisinvolvement in the criminal case, conviction or detention, even ifultimately he was acquitted of the said case, inasmuch as such asituation would make person undesirable or unsuitable for thepost.

(ix) An employee in the uniformed service pre-supposes higherlevel of integrity as such person is expected to uphold the lawand on the contrary such service born in deceit and subterfugecannot be tolerated.

(x) The authorities entrusted with the responsibility of appointingConstables, are under duty to verify the antecedents of candidateto find out whether he is suitable for the post of Constable andso long as the candidate has not been acquitted in the criminalcase, he cannot be held to be suitable for appointment to the postof Constable.”

8.4 In the case of Daya Shankar Yadav (supra), this Court hadan occasion to consider the purpose of seeking the information withrespect to antecedents. It is observed and held that the purpose of seekingthe information with respect to antecedents is to ascertain the characterand antecedents of the candidate so as to assess his suitability for thepost. It is further observed that when an employee or prospectiveemployee declares in verification form, answers to the queries relatingto character and antecedents, the verification thereof can lead to any ofthe following consequences:

“(a) If the declarant has answered the questions in the affirmativeand furnished the details of any criminal case (wherein he wasconvicted or acquitted by giving benefit of doubt for want ofevidence), the employer may refuse to offer him employment (orif already employed on probation, discharge him from service), ifhe is found to be unfit having regard to the nature and gravity ofthe offence/crime in which he was involved.

A(b) On the other hand, if the employer finds that the criminal casedisclosed by the declarant related to offences which weretechnical, or of nature that would not affect the declarant’sfitness for employment, or where the declarant had beenhonourably acquitted and exonerated, the employer may ignorethe fact that the declarant had been prosecuted in criminal caseBand proceed to appoint him or continue him in employment.

(c) Where the declarant has answered the questions in the negativeand on verification it is found that the answers were false, theemployer may refuse to employ the declarant (or discharge him,if already employed), even if the declarant had been cleared ofCthe charges or is acquitted. This is because when there issuppression or non-disclosure of material information bearing onhis character, that itself becomes reason for not employing thedeclarant.

(d) Where the attestation form or verification form does not containDproper or adequate queries requiring the declarant to disclose hisinvolvement in any criminal proceedings, or where the candidatewas unaware of initiation of criminal proceedings when he gavethe declarations in the verification roll/attestation form, then thecandidate cannot be found fault with, for not furnishing the relevantEinformation. But if the employer by other means (say policeverification or complaints, etc.) learns about the involvement ofthe declarant, the employer can have recourse to courses (a) or(b) above.”

Thereafter, it is observed and held that an employee can beFdischarged from service or prospective employee may be refusedemployment on the ground of ……..suppression of material informationor making false statement in reply to queries relating to prosecution orconviction for criminal offence (even if he was ultimately acquitted inthe criminal case).

G8.5 In the case of Abhijit Singh Pawar (supra), when theemployee participated in the selection process, he tendered an affidavitdisclosing the pending criminal case against him. The affidavit was filedon 22.12.2012. According to the disclosure, case registered in the year2006 was pending on the date when the affidavit was tendered. However,within four days of filing such an affidavit, compromise was enteredHinto between the original complainant and the employee and an application

for compounding the offence was filed under Section 320 Cr.P.C. Theemployee came to be discharged in view of the deed of compromise.That thereafter the employee was selected in the examination and wascalled for medical examination. However, around the same time, hischaracter verification was also undertaken and after due considerationof the character verification report, his candidature was rejected. Theemployee filed writ petition before the High Court challenging rejectionof his candidature. The learned single Judge of the High Court of MadhyaPradesh allowed the said writ petition. The judgment and order passedby the learned single Judge directing the State to appoint the employeecame to be confirmed by the Division Bench which led to appeal beforethis Court. After considering catena of decisions on the point includingthe decision of this Court in the case of Avtar Singh (supra), this Courtupheld the order of the State rejecting the candidature of the employeeby observing that as held in Avtar Singh (supra), even in cases wherea truthful disclosure about concluded case was made, the employerwould still have right to consider antecedents of the candidate andcould not be compelled to appoint such candidate. After reproducingand/or re-considering para 38.5 of the decision in the case of AvtarSingh (supra), in paragraph 13, this Court observed and held as under:

13. In Avtar Singh (supra), though this Court was principallyconcerned with the question as to non-disclosure or wrongdisclosure of information, it was observed in para 38.5 that evenin cases where truthful disclosure about concluded case wasmade, the employer would still have right to consider antecedentsof the candidate and could not be compelled to appoint suchcandidate.

In the said decision, this Court also considered the conduct on thepart of the employee in getting discharge on the basis of the compromisewhich was obtained within 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 hadapplied, criminal case was pending against him. Compromisewas entered into only after an affidavit disclosing such pendencywas filed. On the issue of compounding of offences and the effectof acquittal under Section 320(8)of CrPC, the law declared bythis Court in Mehar Singh (2013) 7 SCC 685, specially in paras 34and 35 completely concludes the issue. Even after the disclosure

Ais made by candidate, the employer would be well within hisrights to consider the antecedents and the suitability of thecandidate. While so considering, the employer can certainly takeinto account the job profile for which the selection is undertaken,the severity of the charges levelled against the candidate andwhether the acquittal in question was an honourable acquittal orBwas merely on the ground of benefit of doubt or as result ofcomposition.

9. Applying the law laid down by this Court in the aforesaiddecisions to the facts of the case on hand, the impugned order passed bythe Division Bench dismissing the appeal and confirming the order passedCby the learned single Judge quashing and setting aside the order oftermination terminating the services of the employee on the ground ofnon-disclosure/suppression of material fact and filing false declarationand directing the appellants to reinstate the respondent-employee isunsustainable.D

10. Apart from the fact that at the time when the respondentapplied in the month of October/November, 2013 though he was alreadyconvicted by the competent court and was given the benefit under Section3 of the Act 1958 only, he did not disclose his conviction, but even at thetime when he filed declaration on 14.04.2015 he filed false declarationEthat neither any criminal case is pending against him nor he has beenconvicted by any court of law and relying upon such declaration theappellants gave him appointment. Only on police verification/receipt ofthe antecedent’s report from the Superintendent of Police, SawaiMadhopur, the appellants came to know about the conviction of therespondent. Therefore, the appellants were absolutely justified inFterminating the services of the respondent.

11. Even the conduct on the part of the respondent to obtain theorder subsequently from the learned Sessions Court in an appeal andgetting the benefit of Section 12 of the Act 1958 deserves consideration.As observed hereinabove, the judgment and order of conviction by theGlearned trial Court was passed as far back as on 5.8.2013. For twoyears, the respondent did not file any appeal before the learned SessionsCourt. After period of approximately two years and after he obtainedthe appointment on the basis of the false declaration that neither anycriminal case is pending against him nor he has been convicted by anyHcourt 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 comein his way, subsequently after period of two years he filed an appealbefore the learned Sessions Court on 11.08.29015 and the appeal cameto be disposed of within period of one month, i.e., on 9.9.2015 and thelearned Sessions Court granted the benefit of Section 12 of the Act1958. From the judgment and order passed by the learned Sessions Court,it appears that the respondent only prayed for giving the benefit of Section12 of the Act 1958 and nothing was contended by him with regard toconviction and order of sentence. Therefore, with view to get out ofthe conviction and the benefit of Section 3 of the Act 1958 only andhaving realised that his conviction may come in his way, he preferred anappeal after period of two years and obtained the benefit of Section 12of the Act 1958 which provides that person found guilty of an offenceand dealt with under the provisions of section 3 or section 4 shall notsuffer disqualification, if any, attaching to conviction of an offenceunder such law.

Even otherwise, subsequently getting the benefit of Section 12 ofthe Act 1958 shall not be helpful to the respondent inasmuch as thequestion is about filing false declaration on 14.04.2015 that neither anycriminal case is pending against him nor he has been convicted by anycourt of law, which was much prior to the order passed by the learnedSessions Court granting the benefit of Section 12 of the Act 1958. Asobserved hereinabove, even in case of subsequent acquittal, the employeeonce made false declaration and/or suppressed the material fact ofpending criminal case shall not be entitled to an appointment as matterof right.12. The issue/question may be considered from another angle,from the employer’s point of view. The question is not about whether anemployee was involved in dispute of trivial nature and whether he hasbeen subsequently acquitted or not. The question is about the credibilityand/or trustworthiness of such an employee who at the initial stage ofthe employment, i.e., while submitting the declaration/verification and/orapplying for post made false declaration and/or not disclosing and/orsuppressing material fact of having involved in criminal case. If thecorrect facts would have been disclosed, the employer might not haveappointed him. Then the question is of TRUST. Therefore, in such asituation, where the employer feels that an employee who at the initialstage itself has made false statement and/or not disclosed the material

Afacts and/or suppressed the material facts and therefore he cannot becontinued in service because such an employee cannot be relied uponeven in future, the employer cannot be forced to continue such anemployee. The choice/option whether to continue or not to continue suchan employee always must be given to the employer. At the cost ofrepetition, it is observed and as observed hereinabove in catena ofBdecision such an employee cannot claim the appointment and/or continueto be in service as matter of right.

13. In view of the afore-stated facts and circumstances of thecase, both, the learned Division Bench as well as the learned SingleJudge have clearly erred in quashing and setting aside the order ofCtermination terminating the services of the respondent on the ground ofhaving obtained an appointment by suppressing material fact and filing afalse declaration. The order of reinstatement is wholly untenable andunjustified.

14. In view of the above and for the reasons stated above, theDpresent appeals succeed. The impugned judgment and order passed bythe Division Bench, as well as, the order passed by the learned SingleJudge quashing and setting aside the order of termination are herebyquashed and set aside. Consequently, the writ petition filed by therespondent-employee stands dismissed and the order of termination standsErestored. However, in the facts and circumstances of the case, thereshall be no order as to costs.

Ankit Gyan

Appeals allowed.