PAWAN KUMAR versus UNION OF INDIA & ANR.

[2022] 7 S.C.R. 928

[2022] 7 S.C.R.

PAWAN KUMAR

UNION OF INDIA & ANR.

(Civil Appeal No(s). 3574 of 2022)

MAY 02, 2022

[AJAY RASTOGI AND SANJIV KHANNA, JJ.]

Service Law: Railway Protection Forces Rules, 1987: rr. 52and 67.2 – Discharge order – Sustainability of – On facts, appellant-Crecruit selected for the post of constable in Railway ProtectionForces – However, while undergoing training, discharged fromservice on the ground of submission of false declaration/suppressionof relevant information in the verification form as regard his criminalantecedents – Said discharge order upheld by the High Court – OnDappeal: Held: Mere suppression of material/false informationregardless of the fact whether there is conviction or acquittal hasbeen recorded in given case does not mean that the employer canarbitrarily discharge/terminate the employee from service –Candidate who intends to participate in the selection process isalways required to furnish correct information relating to hisEcharacter and antecedents in the verification/attestation form beforeand after induction into service – Person who has suppressed thematerial information or has made false declaration indeed has nounfettered right of seeking appointment or continuity in service,however, the competent authority has to exercise the powerFjudiciously – Yardstick/standard which has to be applied with regardto adjudging suitability of the incumbent always depends upon thenature of post, nature of duties, effect of suppression over suitability–On facts, no FIR was registered on the date of filling the applicationform – False criminal case of trivial nature was registered laterGunder misconception and the recruit was later acquitted – At thetime of filling up the attestation form, the recruit was required todisclose whether he was ever arrested or prosecuted to which hementioned ‘No’ – It is true that candidate is required to furnishcorrect information before and after induction into service –However, the competent authority is required to use their powersH

judiciously and in reasonable manner – Nature of post and natureof duties to be discharged by the recruit has never been looked intoby the competent authority while examining the overall suitabilityof the incumbent to become member of the force – Thus, thejudgment of the High Court is unsustainable and set aside.

Avtar Singh v. Union of India and others (2016) 8 SCC471 : [2016] 7 SCR 445- relied on.

Rajasthan Rajya Vidyut Prasaran Nigam Limited andanother v. Anil Kanwariya (2021) 10 SCC 136 –referred to.

Case Law Reference

[2016] 7 SCR 445relied onPara 18(2021) 10 SCC 136referred toPara 16

CIVIL APPELLATE JURISDICTION : Civil Appeal No.3574of 2022.

From the Judgment and Order dated 17.11.2015 of the High Courtof Delhi at New Delhi in Writ Petition (Civil) No.7872 of 2015.

Rajiv Kataria, Ms. Debyani Das P., M/s Delhi Law Chambers,Advs. for the Appellant.

K. M. Nataraj, Vatsal Joshi, Mohammed Akhil, Praneet Pranav,Abhishek Raj, Shailesh Madiyal, Amrish Kumar, Advs. for theRespondents.

The Judgment of the Court was delivered by

RASTOGI, J.

1. Leave granted.

2. The instant appeal is directed against the judgment and orderpassed by the Division Bench of the High Court of Delhi dated 17[th]November, 2015, whereby the High Court upheld the order of dischargedated 24[th] April, 2015, taking recourse to clause 9(f) of the employmentnotice no.1/2011 dated 27[th] February, 2011 read with Rule 67.2 of RailwayProtection Force Rules, 1987 (hereinafter referred to as “the RPF Rules1987”).

3. The brief facts of the case culled out from the record are thatthe employment notice for appointment to the post of Constable in theRailway Protection Force (RPF), including Railway Police Special Force

A(RPSF) came to be published on 27[th] February, 2011. The appellant beingeligible submitted application form and participated in the selection processand after qualifying the written examination held on 23[rd] June, 2013followed with physical efficiency test held on 12[th] June, 2014 and afterhis final selection was sent for training. While the appellant wasundergoing training, he came to be discharged by an order dated 24[th]BApril, 2015 invoking clause 9(f) of the employment notice no.1/2011dated 27[th] February, 2011 and Rule 67.2 of the RPF Rules 1987.

4. That became the subject matter of challenge at the instance ofthe appellant by filing writ petition before the High Court of Delhi. Itcame on record that at one stage FIR no.75 under Sections 148/149/C323/506/356 IPC was registered against him on 4[th] April, 2011 and aftercharge-sheet came to be filed on 13[th] April, 2011, charge was framed on7[th] July, 2011. As it was false case registered against him, the appellantwas honourably acquitted by the competent Court of jurisdiction by thejudgment dated 12[th] August, 2011 and this fact, according to theDrespondent, was not disclosed by him when he filled the attestation formon 27[th] May, 2014 that he was prosecuted at one stage and this being acase of suppression of information/false declaration in the verificationform, the High Court dismissed the writ petition under judgment impugneddated 17[th] November, 2015 and that became the subject matter ofchallenge in appeal before this Court.E5. We have heard learned counsel for the parties and with theirassistance perused the material available on record.

6. The process of selection was initiated by the respondentspursuant to the employment notice no.1/2011 dated 27[th] February, 2011Ffor filling up the post of Constable in RPF/RPSF. Clause 9(f) of the RPFRules 1987, which is relevant for the present purpose is reproducedhereunder:

“9(f) Candidates found to be having adverse report on theirantecedents and character may not be appointed in RPF includingRPSF. False declaration is an offence under the law and will leadGto disqualification of the applicant, institution of criminal case andalso dismissal from service, if appointed. Hence, applicants areadvised to be careful while filling in the application.”

7. Indisputedly, on the date when the application form was filledby the appellant pursuant to employment notice no.1/2011, no suchH

criminal case was either instituted or pending against him and what wasdisclosed by him at the time of filling his application form pursuant toemployment notice no.1/2011, there was no suppression of relevantinformation or submission of false declaration at that stage. It wasunfortunate that false criminal case of trivial nature came to be registeredagainst him on 4[th] April, 2011 and since it has no legs to stand as muchbefore the charge-sheet could be filed, the de facto complainant submittedhis affidavit on 19[th] April, 2011 that no such alleged incident on 4[th] April,2011 had taken place and the bag was found beneath the driver seatitself and under misconception, complaint was lodged by him. Theprosecution witness has not supported case of the prosecution duringthe course of trial and for that reason the appellant was honourablyacquitted by the trial Court by judgment dated 12[th] August, 2011.8. Unfortunately, when the appellant filled the attestation form ata later stage on 27[th] May, 2014, certain formation were desired to bedisclosed by him and in clause 12(a) and 12(b) of the verification form,according to the respondent, as the appellant mentioned “No”, when hewas asked to disclose as to whether he has ever been arrested or hasbeen prosecuted, in answer to clauses 12(a) and (b), which wasconsidered to be suppression of relevant information/submission offalse declaration in the verification form as regards to his criminalantecedents. Proceeding on the said premise, the order of dischargecame to be passed on 24th April, 2015. It will be relevant to quote theextract of the information relevant for the purpose :

“Attestation Form

NOTE :THIS ATTESTATION FORM WILL BEUTILISED ONLY UPON FINALCONSIDERATION AND ACCEPTANCE OFTHE CANDIDATURE AFTER VIVA-VOCE ASSELECTED CANDIDATE SUBJECT TOFULFILMENT OF OTHER PRE CONDITIONS.

WARNING: THE FURNISHING OF FALSE INFORMATIONOR SUPPRESSION OF ANY FACTUALINFORMATION IN THE ATTESTATION FORMWOULD BE DISQUALIFICATION, AND ISLIKELY TO RENDER THE CANDIDATE UNFITFOR EMPLOYMENT UNDER THE GOVT.

……………………….

932SUPREME COURT REPORTS

[2022] 7 S.C.R.

A12 (a) Have you ever been arrested?

Yes/No _/Yes/No _/

(b) Have you ever been prosecuted?

……………………….”

9. Under the Railway Protection Force Rules, 1987, at the time ofBentry into service verification of character and antecedents of theincumbent has to take place according to the procedure prescribed bythe Central Government from time to time. Rule 52 of the Rules 1987 isreproduced herein below:

“Rule 52/VERIFICATION :C52.1 As soon as recruit is selected but before he is formallyappointed to the Force, his character and antecedents shall be gotverified in accordance with the procedure prescribed by theCentral Government from time to time.

52.2 Where after verification, recruit is not found suitable forDthe Force, he shall not be appointed as member of the Force.”

10. It may be noticed that while recruit is selected and beforehe is formally appointed, his character/antecedents have to be verifiedand after due verification if the recruit is found suitable for the post, maybe considered for appointment as member of the force. What is requiredEthat after the verification of character/antecedents of the recruit hastaken place, it presupposes and casts an obligation on the appointing/competent authority to take into consideration as to whether the kind ofsuppression of alleged information/false declaration holds him suitablefor appointment to the force, in terms of Rule 52 of the Rules 1987.

F11. This cannot be disputed that the candidate who intends toparticipate in the selection process is always required to furnish correctinformation relating to his character and antecedents in the verification/attestation form before and after induction into service. It is also equallytrue that the person who has suppressed the material information or hasmade false declaration indeed has no unfettered right of seekingGappointment or continuity in service, but at least has right not to bedealt with arbitrarily and power has to be judiciously exercised by thecompetent authority in reasonable manner with objectivity having dueregard to the facts of the case on hand. It goes without saying that theyardstick/standard which has to be applied with regard to adjudgingHsuitability of the incumbent always depends upon the nature of post,

nature of duties, effect of suppression over suitability to be consideredby the authority on due diligence of various aspects but no hard and fastrule of thumb can be laid down in this regard.

12. Earlier, there has been conflict of opinion in the variousdecisions of Division Benches of this Court and at the stage when theDivision Bench of the High Court dismissed the writ petition under theimpugned order dated 17[th] November, 2015, there were divergent viewsof this Court and that came to be later settled by three Judge Bench ofthis Court in Avtar Singh v. Union of India and others.[1]. Whilesummarizing the conclusion, this Court has laid down broad guidelineswhich has to be taken note of by the appointing/competent authority indealing with the matters where there is suppression of materialinformation or disclosure of false information and after reconciling theearlier judgments succinctly summarized the conclusions as under:

“34. No doubt about it that verification of character andantecedents is one of the important criteria to assess suitabilityand it is open to employer to adjudge antecedents of the incumbent,but ultimate action should be based upon objective criteria on dueconsideration of all relevant aspects.

35. Suppression of “material” information presupposes that whatis suppressed that “matters” not every technical or trivial matter.The employer has to act on due consideration of rules/instructions,if any, in exercise of powers in order to cancel candidature or forterminating the services of employee. Though person who hassuppressed the material information cannot claim unfettered rightfor appointment or continuity in service but he has right not tobe dealt with arbitrarily and exercise of power has to be inreasonable manner with objectivity having due regard to facts ofcases.

36. What yardstick is to be applied has to depend upon the natureof post, higher post would involve more rigorous criteria for allservices, not only to uniformed service. For lower posts whichare not sensitive, nature of duties, impact of suppression on suitabilityhas to be considered by authorities concerned considering post/nature of duties/services and power has to be exercised on dueconsideration of various aspects.

A37. The “McCarthyism” is antithesis to constitutional goal, chanceof reformation has to be afforded to young offenders in suitablecases, interplay of reformative theory cannot be ruled out in totonor can be generally applied but is one of the factors to be takeninto consideration while exercising the power for cancellingcandidature or discharging an employee from service.B

38. We have noticed various decisions and tried to explain andreconcile them as far as possible. In view of the aforesaiddiscussion, we summarise our conclusion thus:

38.1. Information given to the employer by candidate as toconviction, acquittal or arrest, or pendency of criminal case,Cwhether before or after entering into service must be true andthere should be no suppression or false mention of requiredinformation.

38.2. While passing order of termination of services or cancellationof candidature for giving false information, the employer may takeDnotice of special circumstances of the case, if any, while givingsuch information.

38.3. The employer shall take into consideration the governmentorders/instructions/rules, applicable to the employee, at the timeof taking the decision.

38.4. In case there is suppression or false information ofinvolvement in criminal case where conviction or acquittal hadalready been recorded before filling of the application/verificationform and such fact later comes to knowledge of employer, any ofthe following recourses appropriate to the case may be adopted:

38.4.1. In case trivial in nature in which conviction had beenrecorded, such as shouting slogans at young age or for pettyoffence which if disclosed would not have rendered an incumbentunfit for post in question, the employer may, in its discretion, ignoresuch suppression of fact or false information by condoning thelapse.

38.4.2. Where conviction has been recorded in case which is nottrivial in nature, employer may cancel candidature or terminateservices of the employee.

38.4.3. If acquittal had already been recorded in case involvingmoral turpitude or offence of heinous/serious nature, on technical

ground and it is not case of clean acquittal, or benefit ofreasonable doubt has been given, the employer may consider allrelevant facts available as to antecedents, and may take appropriatedecision as to the continuance of the employee.

38.5. In case where the employee has made declaration truthfullyof concluded criminal case, the employer still has the right toconsider antecedents, and cannot be compelled to appoint thecandidate.

38.6. In case when fact has been truthfully declared in characterverification form regarding pendency of criminal case of trivialnature, employer, in facts and circumstances of the case, in itsdiscretion, may appoint the candidate subject to decision of suchcase.

38.7. In case of deliberate suppression of fact with respect tomultiple pending cases such false information by itself will assumesignificance and an employer may pass appropriate ordercancelling candidature or terminating services as appointment ofa person against whom multiple criminal cases were pending maynot be proper.

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

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

38.10. For determining suppression or false informationattestation/verification form has to be specific, not vague. Onlysuch information which was required to be specifically mentionedhas to be disclosed. If information not asked for but is relevantcomes to knowledge of the employer the same can be consideredin an objective manner while addressing the question of fitness.However, in such cases action cannot be taken on basis ofsuppression or submitting false information as to fact whichwas not even asked for.

936SUPREME COURT REPORTS

A38.11. Before person is held guilty of suppressio veri or suggestiofalsi, knowledge of the fact must be attributable to him.”

13. What emerges from the exposition as laid down by this Courtis that by mere suppression of material/false information regardless ofthe fact whether there is conviction or acquittal has been recorded, theBemployee/recruit is not to be discharged/terminated axiomatically fromservice just by stroke of pen. At the same time, the effect of suppressionof material/false information involving in criminal case, if any, is leftfor the employer to consider all the relevant facts and circumstancesavailable as to antecedents and keeping in view the objective criteriaand the relevant service rules into consideration, while taking appropriateCdecision regarding continuance/suitability of the employee into service.What being noticed by this Court is that mere suppression of material/false information in given case does not mean that the employer canarbitrarily discharge/terminate the employee from service.

14. At one stage after the matter being heard, detailed order wasDpassed by this Court on 21[st] October, 2021 and taking note of the judgmentof Avtar Singh (supra) directed the employer to review its decision inthe light of the decision of this Court. In compliance thereof, the revieworder has been passed on 23[rd] December, 2021 confirming its earlierdecision of discharge dated 24[th] April, 2015. The bare perusal of theEreview order dated 23[rd] December, 2021, itself indicates that the authorityhas not applied its mind and just after reproduction of facts, confirmedthe order of discharge dated 24[th] April, 2015.

15. It may be further noticed that in para 5(c) of the order, areference has been made of the affidavit submitted by the appellant atFthe time of filling his application form, but on the day when the applicationform was filled, the information which he disclosed in terms of clause9(f) of employment notice indisputedly, no criminal case on that datewas either instituted or pending against him. It is relevant to note that theemployment notice is of 27[th] February, 2011 and the alleged criminalcase was instituted on 4[th] April, 2011. At the same time, the authorityGhas not even considered the scope and ambit of Rule 52 of the Rules1987 that after verification of the character/antecedents of the incumbent,it will be an obligation upon the authority to examine as to whether theincumbent/recruit is suitable to become member of the force and withoutappreciation in mechanical manner confirmed the order of dischargeHdated 24[th] April, 2015.16. The judgment relied upon by the respondent Rajasthan RajyaVidyut Prasaran Nigam Limited and another v. Anil Kanwariya[2]may not be of any assistance for the reason that it was case where therespondent employee before submitting application pursuant to theadvertisement inviting applications was convicted by the competent Courtof jurisdiction and this fact was not disclosed by him while filling hisapplication form and that was the reason favoured upon the Court whileupholding action of the authority in passing the order of termination whichwas impugned in the proceedings. We have already quoted paragraph38 of the judgment by three-Judge Bench of this Court in Avtar Singh(supra) and in the context of the factual background of the present caseapplied the said principles. One distinguishing factor, as noticed above, isthat the criminal complaint/FIR in the present case was registered postsubmission of the application form. We have also taken into account thenature of the allegations made in the criminal case and that the matterwas of trivial nature not involving moral turpitude. Further, the proceedingshad ended in clean acquittal. As is clear from paragraph 38 in AvtarSingh (supra), all matters cannot be put in straitjacket and degree offlexibility and discretion vests with the authorities, must be exercisedwith care and caution taking all the facts and circumstances intoconsideration, including the nature and type of lapse.

17. Adverting to the facts of the instant case, at the time ofattestation form filled by the appellant, the criminal case was alreadyregistered against him but it may be noticed that at the very threshold,the complainant filed his affidavit that the complaint on which FIR cameto be registered was due to misunderstanding and he did not want topursue his case any further, but still charge-sheet came to be filed andon the first date of hearing, the alleged victim PW.1 did not support caseof the prosecution and thus the order of clean acquittal came to be passedby the learned Judge of competent jurisdiction by judgment dated 12[th]August, 2011.

18. The criminal case indeed was of trivial nature and the natureof post and nature of duties to be discharged by the recruit has neverbeen looked into by the competent authority while examining the overallsuitability of the incumbent keeping in view Rule 52 of the Rules 1987 tobecome member of the force. Taking into consideration the expositionexpressed by this Court in Avtar Singh (supra), in our considered view

Athe order of discharge passed by the competent authority dated 24[th]April, 2015 is not sustainable and in sequel thereto the judgment passedby the Division Bench of High Court of Delhi does not hold good anddeserves to be set aside.

19. Consequently, the appeal succeeds and is allowed. TheBjudgment of the Division Bench of the High Court dated 17[th] November,2015 and the order of discharge dated 24[th] April, 2015 and dated 23[rd]December, 2021 are hereby quashed and set aside. The Respondentsare directed to reinstate the appellant in service on the post of Constableon which he was selected pursuant to his participation in reference toemployment notice no.1/2011 dated 27[th] February, 2011. We make itCclear that the appellant will not be entitled for the arrears of salary forthe period during which he has not served the force and at the sametime he will be entitled for all notional benefits, including pay, seniorityand other consequential benefits, etc. Necessary orders shall be passedwithin period of one month from today. No costs.

D20. All pending application(s) shall stand disposed of.

Nidhi Jain(Assisted by : Shashwat Jain, LCRA)

Appeal allowed.