Shailendra Kumar Bhoi vs State Of Chhattisgarh

Through the present writ petition the petitioner is assailing the disciplinary proceedings initiated against the petitioner.

The allegation against the petitioner is the suppression of fact as regards the petitioner being involved in a series of criminal cases and he also getting convicted in those cases prior to his seeking employment under the respondents.

A charge sheet was issued as early as on 03.01.2022 and from the perusal of the pleadings it would also reveal that petitioner also has submitted his reply to the said charge sheet vide Annexure P-4 dated 28.02.2022. It has been informed by the counsel for the petitioner that there is no further development on the disciplinary front thereafter. The petitioner in the instant case is said to have got implicated in a case where offence registered against him was under provisions of Section 13 of the Gambling Act. The petitioner was implicated in cases in crime no.306/2002, crime no. 142/2004, crime no. 334/2006 & in crime no.325/2011. All this were registered in Police Station City Kotwali, Bilaspur. In all the aforesaid crime, the petitiner was inflicted with a fine of Rs.100/- each. The details of the same has been obtained in the course of collecting criminal antecedents verification at the departmental level.

Learned counsel for the petitioner submits that evidence for which the petitioner was criminally prosecuted was too trivial in nature and that same would not fall within the ambit of moral turpitude as per the notification issued by the State Government themselves. That Hon'ble Supreme Court in the case of Avtar Singh v. Union of India & Others reported in AIR 2016 SC 3598 itself has held that in the cases where the criminal charges of the employee were not of serious and heinous in nature and are trivial in nature the same can be sympathetically considered and the act of suppression of such materials from being disclosed at the time of appointment, can be ignored or condoned.

It is relevant at this juncture to take note of the observations made by the Hon'ble Supreme Court in the case of Avtar singh(Supra)

At this juncture, it would be relevant to refer to the decision of the Supreme Court in the case of Avtar Singh (supra) wherein the Supreme Court in paragraph 23, 28 & 29 has very categorically held as under :

“23....In case offence is petty in nature committed at young age, such as stealing a bread, shouting of slogans or is such which does not involve moral turpitude, cheating, misappropriation etc. or otherwise not a serious or heinous offence and accused has been acquitted in such a case when verification form is filled, employer may ignore lapse of suppression or submitting false information in appropriate cases on due consideration of various aspects.

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What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by concerned authorities considering post/nature of duties/services and power has to be exercised on due consideration of various aspects.

29.The 'McCarthyism' is antithesis to constitutional goal, chance of reformation has to be afforded to young offenders in suitable cases, interplay of reformative theory cannot be ruled out in toto nor can be generally applied but is one of the factors to be taken into consideration while exercising the power for cancelling candidature or discharging an employee from service.”

After taking into consideration the aforesaid observations the Supreme Court further in paragraph 30 has laid down the following broad principles to be taken note of by an employer in similar circumstances. For ready reference paragraph 30 is reproduced herein under :

“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:

(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.

(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.

(3)The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.

(4)In case there is suppression or false information ofinvolvement 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 : - (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.

(b)Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.(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 may take appropriate decision as to the continuance of the employee.(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.

(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.

(7) In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.

(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.

(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.

(10) For determining suppression or false information attestation/verification form has to be specific,not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.

(11) Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him.”

A perusal of the provisions of Clause 4(a) of paragraph 30 clearly reflects that in case if the nature of offence and the conviction recorded is of a trivial nature it would be the discretion of the employer to pass an appropriate order and ignore such suppression of facts or false informations by condoning the said lapse. Likewise in Clause 10 again the Supreme Court has held that in case if certain informations have been learnt by the employer subsequent to the order of appointment then the employer should keep in mind the nature of the offence and should pass an order in an objective manner considering the fitness of the employee for the said post that he has been appointed to.

Following the judgment of the Supreme Court in Avtar Singh (supra), the coordinate Bench of this Court in Writ Petition (S) No. 6424 of 2010(Dainy Singh Thakur v. State of Chhattisgarh & Others), decided on 4.10.2016, in somewhat similar circumstances has allowed a writ petition and has set aside the order of termination passed against the petitioner therein. A perusal of the two judgments, that is, the judgment passed in Avtar Singh (supra) and also the case of Dainy Singh Thakur, it is evidently clear that in the instant case also from the nature of allegation levelled it does not appear to be a case where the nature of offence appears to be either grievous or heinous crime but it appears to be trivial in nature. Likewise, it is also reflected that it is only the order of fine which has been imposed upon the Petitioner which also suggests that it was only a petty act which was committed by him and for which after considering his age and the nature of the offence alleged after imposing fine he has been let off.

Given the aforesaid legal position as it stands the writ petition as of now stands disposed of directing the respondents to take appropriate decision on the reply that petitioner has submitted to the charge sheet and while taking a decision disciplinary authority shall also take note of the observations made by the Hon'ble Supreme Court in the case of Avtar Singh(Supra) which has been referred to in the preceding paragraphs.

With the aforesaid observations, the writ petition accordingly stands disposed of.