Rakeshbhai Arvindbhai Bariya vs State of Gujarat and Others

Abhilasha Kumari, J.—Rule. Mr. Maulik G. Nanavati, learned advocate, waives service of notice of Rule on behalf of Respondents Nos. 1 to 3. On the facts, and in the circumstances of the case, and with the consent of the learned advocates for the respective parties, the petition is being heard and finally decided, today.

By preferring this petition under Article 226 of the Constitution of India, the Petitioner has challenged the order dated 30.08.2010 passed by the Director General of Police (Respondent No. 2), whereby, the order dated 11.05.2010 passed by District Superintendent of Police (Respondent No. 3), terminating the services of the Petitioner as Armed Police Constable has been confirmed.

Briefly stated, the facts of the case are that the Petitioner was appointed as Armed Police Constable on contractual basis and on fixed salary of Rs. 2,500/-, by order dated 03.01.2007. After a period of about two and half years of joining service, the Petitioner was required to fill up an Attestation Form provided by Respondent No. 3. The Petitioner filled up the said Form on 04.11.2009 and submitted it to Respondent No. 3. In answer to column No. 10 of the Attestation Form, the Petitioner was required to state whether there was any criminal case pending against him in a Court of law, and if so, the decision thereupon, and the details of the punishment, if any. In answer to this column, the Petitioner wrote "No". The Petitioner produced a certificate of the Tilakwada Police Station wherein it was stated there there was no case pending against him and he had not been convicted in any case. Upon verification by Respondent No. 3, it was found that an FIR had been registered against the Petitioner vide II-C.R. No. 26/2000, and the Petitioner was acquitted in the criminal proceedings that resulted therefrom, on 18.01.2007. Respondent No. 3 issued a notice to the Petitioner dated 12.11.2009, calling upon him to render an explanation why he had suppressed the fact regarding filing of a case against him and the resultant criminal proceedings. The Petitioner filed a reply dated 19.11.2009 wherein it was stated that the Attestation Form was filled in on 04.11.2009 and at that point of time, no criminal Trial was pending against the Petitioner, who had been acquitted on 18.01.2007. The Petitioner stated in the said reply that he was under a bona fide impression that as he had been acquitted by the Court, there was no reason to declare this fact and, as on 04.11.2009, when the Attestation Form was filled in, there was no criminal case pending against him, therefore, he had not suppressed any material facts. The explanation of the Petitioner was not found satisfactory, therefore, Respondent No. 3 passed order dated 11.05.2010, terminating the services of the Petitioner with immediate effect, on the ground of not disclosing correct information and suppressing the factual position, for the purpose of getting appointment in Government service. The Petitioner was considered to have committed misconduct and his services were terminated with immediate effect. The Petitioner preferred an appeal before Respondent No. 2, who dismissed the same by order dated 30.08.2010. Being aggrieved by the said order, the Petitioner has approached this Court by filing the present petition.

Mr. Hiren M. Modi, learned advocate for the Petitioner, has submitted that the Petitioner has not suppressed any material fact and nor has he made any misrepresentation as, on 04.11.2009, when the Attestation Form was filled in by him, there was no criminal case pending against him. As the Petitioner had been acquitted in the criminal case against him by the learned Judicial Magistrate, First Class, Rajpipla on 18.01.2007, he did not think it necessary to mention the factum of acquittal, in answer to column No. 10 in the Attestation Form. There was no mala fide intention or suppression of facts on the part of the Petitioner in doing so but only a bona fide misunderstanding, for which the services of the Petitioner do not deserve to be terminated. On the above grounds, it is urged by the learned advocate for the Petitioner, that the petition be allowed, and the impugned orders of termination be quashed and set aside.

In support of the above contentions, the learned advocate for the Petitioner has placed reliance upon a judgment of the Supreme Court in Kamal Nayan Mishra Vs. State of Madhya Pradesh and Others,

The petition has been contested by Mr. Maulik G. Nanavati, learned Assistant Government Pleader, by submitting that in Column No. 10 of the Attestation Form, information had been sought whether there is any criminal case pending in any Court of law, the decision thereof and details of conviction, if any. The Petitioner was bound to answer correctly and mention the filing of the criminal case against him as well as the decision thereupon. As he has omitted to do so, it is a clear case of suppression of material facts in order to obtain Government employment. As the orders of termination have been passed after considering the explanation of the Petitioner, and as they do not suffer from any illegality, this Court may not interfere.

In support of the above submissions, the learned Assistant Government Pleader has placed reliance upon the following judgments:

(1) Kendriya Vidyalaya Sangathan and Others Vs. Ram Ratan Yadav,

(2) A.P. Public Service Commission Vs. Koneti Venkateswarulu and Others,

I have heard the learned Counsel for the respective parties, perused the averments made in the petition and other material on record.

It is not in dispute that an FIR vide II-C.R. No. 26/2000 was filed against the Petitioner under Sections 323, 506(2), 504 and 114 of the Indian Penal Code and Section 135 of the Bombay Police Act, which resulted in criminal case No. 5454/2006 (new) 2252/2000 (old). By judgment and order dated 18.01.2007, the learned Judicial Magistrate, First Class, Rajpipla, acquitted the Petitioner. If Column No. 10 of the Attestation Form is perused, it is clear that it calls upon the Petitioner to answer whether there is any criminal case pending against him and if so, the decision thereupon, and details of punishment, if any. Not only was it incumbent upon the Petitioner to disclose whether there was any criminal case pending at the relevant period of time, he was also bound to disclose the decision of the criminal proceedings that took place earlier and whether any punishment was inflicted. The Petitioner chose to answer this question by writing "No", which may be correct insofar as the first part of the question regarding pendency of any criminal case is concerned, but which is clearly factually incorrect, looking to the second part of the question, which requires the Petitioner to disclose the decision of the case and the punishment inflicted, if any. The fact that Column No. 10 requires the candidate to mention the decision and punishment inflicted in the criminal case makes it clear that it relates to a case that has already been concluded before the filling up of the Attestation Form. The Petitioner has conveniently chosen to ignore the latter part of the question by answering the entire question in the negative. The explanation of the Petitioner that there was no criminal case pending against him on the date of filling up of the Attestation Form is not convincing, as it is not the correct reply to the question posed in Column No. 10 of the Form. By stating "No" against the said column, the Petitioner has not disclosed full and true information, but has suppressed the factum of the criminal case filed against him and the decision thereupon. The submission of the learned Counsel for the Petitioner that there was no mala fide intention cannot be accepted as, by suppressing material information and not disclosing the correct factual position, the Petitioner has obtained Government employment. By not disclosing the factual position, it cannot be said that the intentions of the Petitioner were bona fide, as the intention of the Petitioner was to get Government employment.

In Kendriya Vidyalaya Sangathan and Ors. v. Ram Ratan Yadav (supra), the Supreme Court was dealing with the similar situation on facts where the Respondent therein, who was a Physical Education Teacher, had mentioned "No" against Column No. 12(I) of the Attestation Form despite the fact that a criminal case was pending against him. The services of the said Teacher were terminated and the termination was upheld by the Tribunal. The concerned Teacher approached the High Court by filing a writ petition wherein, the High Court reversed the order of the Tribunal. The Supreme Court allowed the appeal and set aside the judgment of the High Court. The observations made by the Supreme Court are squarely and directly applicable to the facts and circumstances of the present case. They are as below:

It is not in dispute that a criminal case registered under Sections 323, 341, 294, 506-B read with Section 34 IPC was pending on the date when the Respondent filled the attestation form. Hence, the information given by the Respondent as against columns 12 and 13 as "No" is plainly suppression of material information and it is also a false statement. Admittedly, the Respondent is holder of BA, B.Ed and M.Ed degrees. Assuming even his medium of instruction was Hindi throughout, no prudent man can accept that he did not study English language at all at any stage of his education. It is also not the case of the Respondent that he did not study English at all. If he could understand column 1-11 correctly in the same attestation form, it is difficult to accept his version that he could not correctly understand the contents of column 12 and 13. Even otherwise, if he could not correctly understand certain English words, in the ordinary course he could have certainly taken help of somebody. This being the position, the Tribunal was right in rejecting the contention of the Respondent and the High Court committed a manifest error in accepting the contention that because the medium of instruction of Respondent was Hindi, he could not understand the contents of column 12 and 13. It is not the case that column 12 and 13 are left blank. The Respondent could not have said "No" as against column 12 and 13 without understanding the contents. Subsequent withdrawal of criminal case registered against the Respondent or the nature of offences, in our opinion, were not material. The requirement of filling column 12 and 13 of the attestation form was for the purpose of verification of character and antecedents of the Respondent as on the date of filling and attestation of the form. Suppression of material information and making a false statement has a clear bearing on the character and antecedents of the Respondent in relation to his continuance in service.

The object of requiring information in columns 12 and 13 of the attestation form and certification thereafter by the candidate was to ascertain and verify the character and antecedents to judge his suitability to continue in service. A candidate having suppressed material information and/or giving false information cannot claim right to continue in service. The employer having regard to the nature of the employment and all other aspects had discretion to terminate his services, which is made expressly clear in Para 9 of the offer of appointment. The purpose of seeking information as per columns 12 and 13 was not to find out either the nature or gravity of the offence or the result of a criminal case ultimately. The information in the said columns was sought with a view to judge the character and antecedents of the Respondent to continue in service or not. The High Court, in our view, has failed to see this aspect of the matter. It went wrong in saying that the criminal case had been subsequently withdrawn and that the offences, in which the Respondent was alleged to have been involved, were also not of serious nature. In the present case the Respondent was to serve as a Physical Education Teacher in Kendriya Vidyalaya. The character, conduct and antecedent of a teacher will have some impact on the minds of the students of impressionable age. The Appellants having considered all the aspects passed the order of dismissal of the Respondent from service. The Tribunal after due consideration rightly recorded a finding of fact in upholding the order of dismissal passed by the Appellants. The High Court was clearly in error in upsetting the order of the Tribunal. The High Court was again not right in taking note of the withdrawal of the case by the State Government and that the case was not of a serious nature to set aside the order of the Tribunal on that ground as well. The Respondent accepted the offer of appointment subject to the terms and conditions mentioned therein with his eyes wide open. Para 9 of the said memorandum extracted above in clear terms kept the Respondent informed that the suppression of any information may lead to dismissal from service. In the attestation form, the Respondent has certified that the information given by him is correct and complete to the best of his knowledge and belief; if he could not understand the contents of columns 12 and 13, he could not certify so. Having certified that the information given by him is correct and complete, his version cannot be accepted. The order of termination of services clearly shows that there has been due consideration of various aspects. In this view, the argument of the learned Counsel for the Respondent that as per para 9 of the memorandum, the termination of service was not automatic, cannot be accepted.

(emphasis supplied)

In the present case, the Petitioner was not only required to state whether the criminal case was pending against him at the relevant point of time, but was also required to disclose whether there was a criminal case pending against him previously and the result of the same. The wording of Column No. 10 of the Attestation Form is clear and unambiguous. As the said form is in the vernacular Gujarati language, the Petitioner, who is conversant with the said language, cannot say that he did not understand the same.

In the letter of appointment issued to the Petitioner dated 03.01.2007, one of the conditions is that his services can be terminated on giving one month''s notice or the fixed salary for the said period as "notice pay" and the contract can be put to an end. This provision has been pressed into service while passing the impugned order of termination and the Petitioner has been given one month''s fixed salary as "notice pay".

In A.P. Public Service Commission v. Koneti Venkateswarulu and Ors. (supra), a similar situation arose for the consideration of the Apex Court wherein the Supreme Court has observed as below:

We are unable to accept the contention of the learned Counsel for the first Respondent. As to the purpose for which the information is called for, the employer is the ultimate judge. It is not open to the candidate to sit in judgment about the relevance of the information called for and decide to supply it or not. There is no doubt that the application called for full employment particulars vide Column 11. Similarly, Annexure III contained an express declaration of not working in any public or private employment. We are also unable to accept the contention that it was inadvertence which led the first Respondent to leave the particulars in Column 11 blank and make the declaration of non-employment in Annexure III to the application. The application was filled on 24-7-1999, the examination was held on 24-10-1999, and the interview call was given on 31-1-2000. At no point of time did the First Respondent inform the Appellant Commission that there was a bonafide mistake by him in filling up the application form, or that there was inadvertence on his part in doing so. It is only when the Appellant Commission discovered by itself that there was suppressio veri and suggestio falsi on the part of the first Respondent in the application that the Respondent came forward with an excuse that it was due to inadvertence. That there has been suppressio veri and suggestion falsi is incontrovertible. The explanation that it was irrelevant or emanated from inadvertence, is unacceptable. In our view, the Appellant was justified in relying upon the ratio of Kendriya Vidyalaya Sangathan and Others Vs. Ram Ratan Yadav, and contending that a person who indulges in such suppressio veri and suggestio falsi and obtains employment by false pretence does not deserve any public employment. We completely endorse this view.

(emphasis supplied)

Applying the principles of law laid down in the above-quoted judgment to the facts of the present case, it is clear the the Petitioner herein is guilty of suppressio veri and suggestio falsi, by suppressing the information regarding the case filed against him, and falsely suggesting that no criminal case has been filed against him, at any point of time. In this view of the matter, it cannot be said that the intention of the Petitioner in not disclosing the full particulars in the Attestation Form was bona fide.

In Kamal Nayan Misra v. State of Madhya Pradesh and Ors. (supra), the Supreme Court was dealing with a case wherein the services of the Appellant therein were terminated after about seven years of the report that he had supplied wrong information in the queries in column-12 of the Attestation Form, without a show cause notice or chargesheet. The appeal was allowed by the Supreme Court on the ground that had the Appellant been issued a show cause notice or a chargesheet, he would have had an opportunity to explain the reason for answering the queries in the manner he did. The Appellant therein was a regularly appointed person and the termination of his services without a show cause notice was held to be illegal and invalid. In the present case, the Petitioner was not appointed on regular basis but his appointment was contractual and terminable on giving of one month''s notice or notice pay, as the case may be. The facts of the said case are on a totally different footing than the facts obtaining in the case in hand. Moreover, in the present case, column No. 10 requires the Petitioner to state whether any criminal case was pending against him and if so, the decision thereupon, and the punishment imposed. As the Petitioner had already been acquitted of the criminal case pending against him on 18.01.2007, and the Petitioner filled up the Attestation Form on 04.11.2009, the factum of the criminal proceedings and the decision thereupon, i.e. acquittal, were very much in his knowledge, and he was bound to disclose the same in answer to column 10. The decision in Kamal Nayan Misra v. State of Madhya Pradesh and Ors. (supra) is, therefore, not applicable on the facts and in the circumstances of the present case.

The purpose of filling in the Attestation Form is to gather information in order to verify the character and antecedents of the employee and ascertain whether he is suitable to be continued in service. Suppression of material facts and giving of selective information that do not give a clear and correct picture, amounts to giving of false information. As held by the Supreme Court in Kendriya Vidyalaya Sangathan and Ors. v. Ram Ratan Yadav (supra), it does have a direct bearing upon the character and antecedents of such an employee, who then has no right to claim continuance in service. The submission of the learned advocate for the Petitioner that as he has been acquitted, he did not think it necessary to give the particulars of the criminal case that had been filed against him, cannot be accepted as the Petitioner was bound to disclose all particulars regarding the filing of the case against him and the decision thereupon.

Considered in the light of the principles of law laid down in the above-mentioned judgment, no illegality or irregularity can be found in the impugned orders so as to warrant interference by this Court.

The petition is, therefore, dismissed. Rule is discharged. There shall be no orders as to costs.