State Of Odisha And Ors vs Gobinda Behera

Dr. Dhananjaya Y Chandrachud, J

1 Delay condoned.

2 Leave granted.

3 This appeal arises from a judgment and order of a Division Bench of the High Court of Orissa dated 29 March 2018.

4 The respondent applied for appointment to the post of a Constable in the Odisha State Police in the 6th IR Batallion, Khurda on 29 October 2011. In

response to a query, the respondent specifically stated in his application that he was not involved in any criminal case. He was appointed on 14

December 2011. A verification roll was provided to him, which was to be filled up in terms of Rule 673 of the Orissa Police Rules. On 22 May 2012,

the Superintendent of Police, Puri informed the Commandant that during the course of the verification of the character and antecedents of the

respondent, it was found that he was involved in Balanga PS Case No 46 of 2009 under Sections 294/323/324/326/336/337/427/379/506/34 of the

Indian Penal Code 1860 [“IPCâ€]. On 6 July 2012, the respondent was called upon to explain why he had submitted a false statement in the

verification roll and in the application for appointment to the post of Constable. The respondent was discharged from service on 26 July 2012, upon

which he filed a proceeding before the Odisha Administrative Tribunal [“Tribunalâ€]. The Tribunal rejected the Original Application [“OAâ€]

on the ground that the respondent had furnished a false declaration. This decision of the Tribunal was reversed by the High Court, by its impugned

judgment. The High Court did so on the basis of a judgment of this Court in Avtar Singh v Union of India [(2016) 8 SCC 471] (Avtar Singh). The High

Court held that the Tribunal had not taken note of the fact that the criminal proceeding had already been quashed and that the suppression in the

circumstances was of a technical and trivial nature. The authorities were directed to consider the case of the respondent for reinstatement in his

former post and to grant consequential service and financial benefits.

5 Upon hearing the learned counsel appearing on behalf of the appellant and the respondent, the factual position, which has emerged before the Court,

is that the First Information Report in the criminal case was lodged on 16 June 2009. The respondent surrendered before the JMFC on 3 August 2009

and was released on bail in view of an order dated 28 July 2009 which had been passed by the High Court in Bail Application 10246 of 2009. The

respondent applied for the post of a Constable thereafter on 29 October 2011 and was appointed on 14 December 2011. The respondent moved the

High Court under Section 482 of the Code of Criminal Procedure 1973 [“CrPCâ]€ for quashing the criminal proceedings. The High Court, by its

order dated 22 November 2013, quashed the criminal proceedings on the basis of a compromise between the parties. This was after the order of

discharge from service on 26 July 2012.

6 The position in law has been considered by this Court in a decision of a three-Judge Bench in Avtar Singh. The summary of the conclusions is

contained in the following extract:

“38.1. 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.

38.2. 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.

38.3. The employer shall take into consideration the government orders/instructions/rules, applicable to the employee, at the time of taking the decision.

38.4. In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded

before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourses appropriate to the

case may be adopted:

38.4.1. 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.

38.4.2. Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the

employee.

38.4.3. 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.

38.5. 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.

38.6. 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.

38.7. 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.

38.8. 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.

38.9. 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.

38.10. 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.

38.11. Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him.â€​

7 The respondent was seeking public employment in the State police service. His duties, on appointment to the service, would be of a responsible

character, bearing intrinsically on the maintenance of law and order and with consequences for personal liberty of citizens. To expect that an applicant

for such a position would be truthful in the disclosure of information sought about the antecedents is a justifiable basis for assessment of personality

and character. The employer can legitimately conclude that a person who has suppressed material facts does not deserve to be in its employment.

8 In the present case, the case against the respondent cannot be regarded as being trivial in nature. That apart, it is evident that, despite being involved

in the criminal case, the respondent suppressed these facts from the authorities while applying for the post of a Constable in the State Police. The

criminal case was quashed in exercise of the jurisdiction under Section 482 of CrPC on the basis of a compromise between the parties much after the

order of discharge. Hence, the view which has been taken by the High Court is palpably unsustainable. The Tribunal was justified in rejecting the

application.

9 We accordingly allow the appeal and set aside the impugned judgment and order of the High Court dated 29 March 2018. While maintaining the

order of the Tribunal, we order and direct that the OA filed by the respondent shall stand dismissed. There shall be no order as to costs.