Rajya Vidyut Prasaran Nigam Limited and Another v. Anil Kanwariya
M. R. SHAH, J.
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 05.09.2019 passed by the High Court of Judicature for
Rajasthan, 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 P etition
(Writ) No. 250/2019, by which the Division Bench of the High Court has
dismissed the said appeal and has confirmed the judgment and ord er
passed by the learned Single Judge dated 23.01.2019 by which the learned
Single Judge allowed the said writ petition preferred by the respondent
herein and quashed and set aside the order of termination te rminating
the services of the respondent – employee herein – original writ petitioner
on the ground of suppression of material facts of conviction and penalty
at the time of applying for the post in 2013 and also submitting a false
declaration at the time of documents verification on 14.04.2015, t he
employer – Rajasthan Rajya Vidyut Prasaran Nigam Limited and another
have preferred the present appeal.
3. That the appellants herein invited applications for the post of
Technical Helper by issuing advertisement in the month of October, 2013.
Pursuant to the said advertisement, respondent herein – employee applied
for the said post. The written test was held on 02.02.2014 and result of
which was declared on 31.03.2015. The date fixed for the documents’
verification was 14.04.2015. The respondent herein having qualified for
the said post was appointed as a Technical Helper as probationer trainee
for a period of two years on 06.05.2015 and was pla ced under
Superintending Engineer, RVPN, Jodhpur. As per condition No. 16 of
the terms and conditions of the appointment order, the appointment of
the respondent was subject to production of a character certification/
verification report issued by the Superintendent of Police of the concerned
District where he belongs. The Superintendent of Police, Sawai Madhopur
715
vide police verification/antecedents report dated 5.6.2015 informed the
appellants that a Case bearing No. 13/2011 against the re spondent-
employee for the offences under Sections 143, 341, 323 IPC in which a
chargesheet was filed against the respondent-employee on 17.01.2011
and the learned trial Court convicted the respondent-employee vide
judgment and order dated 5.8.2013, convicting him for the offences under
Sections 341 and 323 IPC, however, given the benefit under the Probation
of Offenders Act, 1958 (hereinafter referred to as “Act 19 58”). While
giving the benefit of Act 1958, the respondent-employee was ordered to
be released on probation for good conduct.
It is to be noted that even subsequently such conviction of the
respondent-employee came to be confirmed, however, the learned
Sessions Judge vide judgment dated 09.09.2015 granted the benefit of
Section 12 of the Act 1958 to the respondent-employee which provides
that a person shall not suffer disqualification attaching to the conviction.
3.1 Having found that the respondent-employee deliberat ely
suppressed the fact of conviction and penalty, not only at the time of
applying for the post, but also on 14.04.2015 whereby he submitted a
declaration during documents verification that neither criminal case is
pending against him nor he has suffered any conviction by any court of
law in any criminal case and finding concealment of facts of criminal
case, the appellants issued a show cause notice dated 31.08.2015 to the
respondent-employee and granted him an opportunity of being heard on
15.03.2016 and having found that in view of suppression of material fact
of not disclosing his conviction by the competent court, respondent -
employee shall not be continued in service and therefore vide order dated
6.5.2016, the appellants terminated the services of the respondent-
employee.
3.2 Aggrieved by the order of termination, the respondent-employee
preferred Writ Petition No. 6969 of 2016 before the learned Single Judge
of the High Court. The learned Single Judge of the High Court s olely
relying 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 order
dated 9.9.2015 passed by the learned Sessions Judge in appeal granting
benefit of Section 12 of the Act 1958, allowed the writ petition and quashed
and set aside the order of termination and directed the appellant s to
reinstate the respondent-employee with all consequential benefits.
RAJASTHAN RAJYA VIDYUT PRASARAN NIGAM LIMITED AND
ANOTHER v. ANIL KANWARIYA [M. R. SHAH, J.]
3.3 Feeling aggrieved and dissatisfied with the judgment and order
passed by the learned Single Judge, quashing and setting aside the order
of termination and directing the appellants to reinstate the respondent-
employee, the appellants-employer preferred appeal before the Division
Bench being D.B. Special Appeal Writ No. 560 of 2019. The Division
Bench also solely relying upon para 38.4.1 of the decision of this Court
in the case of Avtar Singh (supra) and observing that the employee
was held guilty in a dispute of trivial nature with his father, uncle, brother
and cousin and as it was a trivial nature dispute and such a dispute
which even if disclosed could have been ignored by the employer because
of the benefit of Section 12 of the Act 1958, the Division Bench by the
impugned judgment and order has dismissed the said appeal and has
confirmed 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 been
dismissed.
4. Dr. Manish Singhvi, learned Senior Advocate has appeared on
behalf of the appellants and Mr. Navin Prakash, Advocate has appeared
on behalf of the respondent-employee.
4.1 Dr. Manish Singhvi, learned Senior Advocate appearing on
behalf of the appellants-employer has vehemently submitted that in the
facts and circumstances of the case, both, the learned Sing le Judge as
well as the Division Bench have materially erred in quashing and setting
aside the order of termination mainly relying upon the decision of this
Court in the case of Avtar Singh (supra) and considering the subsequent
order passed by the learned Sessions Court granting the benefit of Section
12 of the Act 1958.
4.2 It is further submitted that, as such, in the f acts and
circumstances of the case, the decision of this Court i n the case of
Avtar Singh (supra) shall not be applicable at all. It is submitted that on
the contrary it supports the case of the appellants.
4.3 It is further submitted that in the present case at t he time
when the respondent-employee applied for the advertised post, he was
already convicted for the offences under Sections 341 and 323 IPC by
the competent criminal court which he did not disclose. It is submitted
that even thereafter also when he submitted the declaration at the time
of documents verification on 14.04.2015, the respondent-employee though
717
already suffered a conviction for the offences under Sections 341 and
323 IPC and at that time, i.e., on 14.04.2015, only the benefit under
Sections 3 & 4 of the Act 1958 was given, he filed a false declaration. It
is submitted that the learned trial Court did not grant the benefit of Section
12 of the Act 1958, which benefit of Section 12 of the Act 1958 was
given only vide judgment and order dated 9.9.2015 by the learned Sessions
Judge. It is submitted that as the respondent-employee suppressed the
material fact of criminal case firstly in the year 2013 when he submitted
the application and thereafter subsequently on 14.04.2015 when he
submitted the declaration at the time of documents verif ication and
thereafter when the services of the respondent were termin ated after
giving him an opportunity of being heard, the same ought not to have
interfered with by the learned Single Judge and thereafter by the Division
Bench.
4.4 It is further submitted that the High Court has materially erred
in even considering the subsequent decision of the learned Sessions Court
in appeal granting the benefit of Section 12 of the Act 1958. It is submitted
that the date on which the respondent applied for the said post and even
submitted the declaration, there was no order passed by the l earned
Sessions Court granting the benefit of Section 12 of the Act 1958 and at
that time the order passed by the learned trial Court granting the benefit
of Sections 3 & 4 of the Act 1958 was subsisting. Therefore, the High
Court ought not to have relied upon and/or taken into consideration the
subsequent decision of the learned Sessions Judge dated 9.9.2015 granting
the benefit of Section 12 of the Act 1958.
4.5 It is further submitted by the learned senior counsel appearing
on behalf of the appellants that the matter may be looked at from another
angle. It is submitted that when the employee initiall y suppressed the
material fact and obtained the appointment fraudulently, thereafter it is a
case of trustworthiness, reliability and credibility of such an employee.
It is submitted that if the employee would have disclosed at the relevant
time that he is facing the criminal trial and/or he has been convicted, in
that case from the very inception, the employer would not have employed
him. It is submitted that therefore the employer is justified in not continuing
such an employee who has suppressed the material fact at the relevant
time, on the premise that such a person cannot be trusted thereafter and
cannot be continued in service.
RAJASTHAN RAJYA VIDYUT PRASARAN NIGAM LIMITED AND
ANOTHER v. ANIL KANWARIYA [M. R. SHAH, J.]
4.6 It is further submitted that even the observations made by the
Division Bench in the impugned judgment that the dispute for which the
employee was convicted was a trivial nature dispute and such a dispute
which even if disclosed could have been ignored by the employer because
of the benefit of Section 12 of the Act 1958 given to him is absolutely
irrelevant, it is submitted that such a reasoning is not ge rmane. It is
submitted that such an observation is on the basis of sur mises and
conjectures that what could have been done by the employer.
4.7 Making the above submissions and relying upon the decisions
of this Court in the cases of Kendriya Vidyalaya Sangathan v. Ram
Ratan Yadav, (2003) 3 SCC 437; Secretary, Department of Home
Secretary, A.P. v. B. Chinnam Naidu, (2005) 2 SCC 7 46; Daya
Shankar Yadav v. Union of India, (2010) 14 SCC 103; Ja inendra
Singh v. State of U.P., (2012) 8 SCC 748; Devendra Kumar v. State
of Uttaranchal, (2013) 9 SCC 363; and State of M.P. v. Abhijit
Singh Pawar, (2018) 18 SCC 733 , it is prayed to allow the present
appeals and quash and set aside the impugned judgment and order passed
by the Division Bench and consequently quash and set aside the judgment
and order passed by the learned Single Judge and consequently dismiss
the writ petition filed by the respondent-employee before the High Court.
5. The present appeals are vehemently opposed by Shri Na vin
Prakash, learned Advocate appearing for the respondent-employee . It
is submitted that in the facts and circumstances of the cas e and more
particularly the order passed by the learned Sessions Court granting the
benefit under Section 12 of the Act 1958 and considering the fact th at
the dispute was of a trivial nature with the family members, the learned
Single Judge rightly set aside the order of termination which has been
rightly confirmed by the Division Bench.
5.1 It is further submitted that the order passed by the lea rned
Single Judge, confirmed by the Division Bench, is absolutely in consonance
with the decision of this Court in the case of Avtar Singh (supra), more
particularly para 38.4.1 of the said decision.
5.2 It is further submitted by the learned counsel th at even
otherwise the omission or the lapse committed on the part of the
respondent was neither intentional nor deliberate, rather it wa s under
bonafide belief that in view of the benefit granted to the re spondent
under the provisions of section 3 of the Act 1958 by the lea rned trial
719
Court, the respondent has not incurred disqualification. It is submitted
therefore the said omission or the lapse deserves to be condo ned by
taking a lenient view. Heavy reliance is placed on the decisions of this
Court in the cases of T.S. Vasudavan Nair v. Director of Vikram
Sarabhai Space Centre, 1988 Supp. SCC 795; Commissi oner of
Police v. Sandeep Kumar, (2011) 4 SCC 644; and Avta r Singh
(supra).
5.3 It is further submitted that in the instant case, as has been held
by the learned Single Judge in judgment and order dated 23.01.2019, the
employer – appellants herein did not at all consider the case of the
respondent as regard to the extenuating circumstances and the b enefit
granted to him under sections 3 & 12 of the Act 1958 by the learned trial
Court and the learned sessions Court.
5.4 Making the above submissions and relying upon the aforesaid
decisions, it is prayed to dismiss the present appeals.
6. We have heard the learned counsel for the respective par ties
at length.
At the outset, it is required to be noted that the appellants herein –
employer terminated the services of the respondent on non-disclosu re
of the pending criminal case against him at the time when he submitted
the application for appointment, submitted in the month of Oct ober/
November, 2013 and thereafter in the declaration dated 14.04.2015. As
observed hereinabove, the respondent was chargesheet ed for the
offences under Sections 143, 341 and 323 IPC vide chargesheet date d
17.01.2011. The learned trial Court convicted the respondent for the
offences under Sections 341 & 323 IPC, vide judgment and order dated
5.8.2013. However, granted the benefit under Section 3 of the Act 1958
only. In the month of October, 2013, the appellants issued an advertisement
for the post of Technical Helper and the last date for submission of the
application was 14.11.2013. Pursuant to the said advertisement, the
respondent applied for the said post and the written test was held on
02.02.2014 and the result of which was declared on 31.03.2015. The
respondent submitted declaration on 14.04.2015 declaring that neither
any criminal case is pending against him nor he has been convicted by
any court of law. The date fixed for documents veri fication was
14.04.2015 and along with the documents verification he was required
to file a declaration which he submitted stating that neither any criminal
RAJASTHAN RAJYA VIDYUT PRASARAN NIGAM LIMITED AND
ANOTHER v. ANIL KANWARIYA [M. R. SHAH, J.]
case is pending against him nor he has been convicted by any court of
law. Therefore, on the date of submitting an application and even at the
time when declaration was filed on 14.04.2015, there was already a n
order of conviction against him. Even at the relevant time, the benefit of
Section 12 of the Act 1958 was not granted to the respondent, which
was given subsequently vide judgment of the learned Sessions Cour t
dated 09.09.2015.
6.1 At this stage, it is required to be noted that the show cau se
notice dated 31.08.2015was followed after the employer received th e
police verification/antecedents report dated 5.6.2015 of the Superintendent
of Police, Sawai Madhopur disclosing that the respondent was already
convicted by the learned trial Court vide judgment and ord er dated
5.8.2013 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 conviction
imposed by the learned trial Court and granted the benefit of Section 3
of the Act 1958 only, the same shall come in his way, bela tedly the
respondent preferred an appeal before the learned Sessions Cour t on
11.08.2015, challenging the judgment and order of conviction passed by
the learned trial Court dated 5.8.2013, i.e., after a period of two yea rs.
That by judgment and order dated 9.9.2015, the learned Sessions Court
allowed the said appeal partly, however granted the benefit of Section
12 of the Act 1958, as prayed.
6.2 From the judgment and order passed by the learned Sessions
Court, it appears that only submission on behalf of the respondent was
with respect to granting the benefit of Section 12 of the Act 19 58 and
the appeal came to be disposed of by the learned Sessions Court within
a period of one month from the date of filing of the appeal, though the
judgment and order of conviction by the learned trial Court was passed
in the year 2013. Therefore, it appears that only with a view to get out of
the disqualification of conviction, belatedly he preferred an appeal and
obtained 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 of
Section 12 of the Act 1958 subsequently by that itself the respondent
cannot get away of the allegations of suppression of material fact and
filing a false declaration that neither any criminal case is pending against
him nor he has been convicted by any court of law, which was filed on
14.04.2015.
721
6.3 Thus, at the time when he submitted the application for
appointment in the month of October/November 2013, the respondent
already suffered a conviction by the competent court which not only he
did not disclose, but in fact, a false declaration was filed that neither any
criminal case is pending against him nor he has been convicted by any
court 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 a show cause notice and an opportunity
of being heard to the respondent, the employer terminated the services
of the respondent on the ground of non-disclosure /suppression of material
fact and filing a false declaration.
7. In light of the aforesaid facts, the orders passed by the learned
Division Bench as well as the learned Single Judge of the High Court
and the reliance placed upon the decision of this Court in the case of
Avtar Singh (supra), relied upon on behalf of the respondent-employee,
are required to be considered.
8. While considering the aforesaid issues, few decisions of th is
Court on appointment obtained by fraud/misrepresent ation and/or
appointment obtained by suppression of material facts are required to be
referred to and considered.
8.1 In the case of B. Chinnam Naidu (supra) , this Court has
observed that the object of requiring information in the attestation form
and the declaration thereafter by the candidate is to ascertain and verify
the character and antecedents to judge his suitability to e nter into or
continue in service. It is further observed that when a candidate suppresses
material information and/or gives false information, he cannot claim any
right for appointment or continuance in service.
8.2 In the case of Devendra Kumar (supra) , while joining the
training, the employee was asked to submit an affidavit giv ing certain
information, particularly, whether he had ever been involved in any
criminal case. The employee submitted an affidavit stating that he had
never been involved in any criminal case. The employee completed his
training satisfactorily and it was at this time that the employer in pursuance
of the process of character verification came to know that the employee
was in fact involved in a criminal case. It was found that the final report
in that case had been submitted by the prosecution and accepted by the
Judicial Magistrate concerned. On the basis of the same, the employee
RAJASTHAN RAJYA VIDYUT PRASARAN NIGAM LIMITED AND
ANOTHER v. ANIL KANWARIYA [M. R. SHAH, J.]
was discharged abruptly on the ground that since he was a temp orary
government servant, he could be removed from service without holding
an enquiry. The said order was challenged by the employee by filing a
writ petition before a Single Judge of the High Court which was dismissed.
The Division Bench upheld that order, which was the subject matter of
appeal before this Court. Dismissing the appeal, this Court observed and
held that the question is not whether the employee is suitable for the
post. The pendency of a criminal case/proceeding is differe nt from
suppressing the information of such pendency. The case pending against
a person might not involve moral turpitude but suppressi ng of this
information itself amounts to moral turpitude. It is further observed that
the information sought by the employer if not disclosed as required, would
definitely amount to suppression of material information an d in that
eventuality, the service becomes liable to be terminated, e ven if there
had been no further trial or the person concerned stood acquitted/
discharged. It is further observed by this Court in the said decision that
where an applicant/employee gets an order by misrepresenting the facts
or by playing fraud upon the competent authority, such an order cannot
be sustained in the eye of the law. “Fraud avoids al l judicial acts,
ecclesiastical or temporal”. It is further observed and held that dishonesty
should not be permitted to bear the fruit and benefit those persons who
have defrauded or misrepresented themselves and in such circumstances
the court should not perpetuate the fraud by entertaining peti tions on
their behalf. The relevant observations in the said decision are in paras
12, 13, 18 & 25, which are as under:
12. So far as the issue of obtaining the appointmen t by
misrepresentation is concerned, it is no more res integra . The
question is not whether the applicant is suitable for the post. The
pendency of a criminal case/proceeding is different from
suppressing the information of such pendency. The case pending
against a person might not involve moral turpitude but suppressing
of this information itself amounts to moral turpitude . In fact,
the information sought by the employer if not disclosed as required,
would definitely amount to suppression of material information.
In that eventuality, the service becomes liable to be t erminated,
even if there had been no further trial or the person concern ed
stood acquitted/discharged.
723
13. It is a settled proposition of law that where an applicant gets
an office by misrepresenting the facts or by playing fra ud upon
the competent authority, such an order cannot be sustained in the
eye of the law. “Fraud avoids all judicial acts, ecclesiastic al or
temporal.” [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 a court, no order of a Minister can be allowed
to stand if it has been obtained by fraud, for fraud unravels
everything.”
18. The ratio laid down by this Court in various cases is that
dishonesty should not be permitted to bear the fruit and benef it
those persons who have frauded or misrepresented themselves.
In such circumstances the court should not perpetuate the fra ud
by entertaining petitions on their behalf. In Union of India v. M.
Bhaskaran (1995) Supp (4) SCC 100 this court, after placing
reliance upon and approving its earlier judgment in Vizianagaram
Social Welfare Residential School Society v. M. Tripura Sundari
Devi (1990) 3 SCC 655, observed as under: (M. Bhaskaran case,
SCC p. 104, para 6)
If by committing fraud any employment is obtained, the same
cannot be permitted to be countenanced by a court of law as the
employment secured by fraud renders it voidable at the option of
the employer.
25. More so, if the initial action is not in consonance with law, the
subsequent conduct of party cannot sanctify the same. Sublato
fundamento cadit opus – a foundation being removed, the
superstructure falls. A person having done wrong cannot take
advantage of his own wrong and plead bar of any law to frustrate
the lawful trial by a competent court. In such a case the legal
maxim nullus commodum caprere potest de injuria sua propria
applies. The persons violating the law cannot be permitted to urge
that their offence cannot be subjected to inquiry, trial or
investigation. [Vide Union of India v. Major General Madan Lal
Yadav (1996) 4 SCC 127:1996 SCC (Cri) 592: AIR 1996 SC 1340
and Lily Thomas v. Union of India (2000) 6 SCC 224: 2000 SCC
RAJASTHAN RAJYA VIDYUT PRASARAN NIGAM LIMITED AND
ANOTHER v. ANIL KANWARIYA [M. R. SHAH, J.]
(Cri) 1056.] Nor can a person claim any right arising out of his
own wrongdoing (jus ex injuria non oritur ).
8.3 In the case of Jainendra Singh (supra), this Court summarised
the principles to be considered in a case where the appointment is obtained
by misrepresentation and/or suppression of facts by candidates/
appointees as under:
“(i) Fraudulently obtained orders of appointment co uld be
legitimately treated as voidable at the option of the employer or
could be recalled by the employer and in such cases mere ly
because the respondent employee has continued in service for a
number of years, on the basis of such fraudulently obtain ed
employment, cannot get any equity in his favour or any estoppel
against the employer.
(ii) Verification of the character and antecedents is one of the
important criteria to test whether the selected candidate is suitable
to the post under the State and on account of his antecedents the
appointing authority if find not desirable to appoint a person to a
disciplined force can it be said to be unwarranted.
(iii) When appointment was procured by a person on the basis of
forged documents, it would amount to misrepresentation and fraud
on the employer and, therefore, it would create no equity in his
favour or any estoppel against the employer while resorting to
termination without holding any inquiry.
(iv) A candidate having suppressed material information and/or
giving false information cannot claim right to continue in service
and the employer, having regard to the nature of employment as
well as other aspects, has the discretion to terminate his services.
(v) The purpose of calling for information regarding involvement
in any criminal case or detention or conviction is for the purpose
of verification of the character/antecedents at the time of
recruitment and suppression of such material information will have
clear bearing on the character and antecedents of the candida te
in relation to his continuity in service.
(vi) The person who suppressed the material information and/or
gives false information cannot claim any right for appointment or
continuity in service.
725
(vii) The standard expected of a person intended to ser ve in
uniformed service is quite distinct from other service s and,
therefore, any deliberate statement or omission regarding a vital
information can be seriously viewed and the ultimate decision of
the appointing authority cannot be faulted.
(viii) An employee on probation can be discharged from service
or may be refused employment on the ground of suppression of
material information or making false statement relating to his
involvement in the criminal case, conviction or detention, even if
ultimately he was acquitted of the said case, inasmuch as such a
situation would make a person undesirable or unsuitable for the
post.
(ix) An employee in the uniformed service pre-supposes a higher
level of integrity as such a person is expected to uphold the l aw
and on the contrary such a service born in deceit and subterfuge
cannot be tolerated.
(x) The authorities entrusted with the responsibility of appointing
Constables, are under duty to verify the antecedents of a candidate
to find out whether he is suitable for the post of a Constable and
so long as the candidate has not been acquitted in the cri minal
case, he cannot be held to be suitable for appointment to the post
of Constable.”
8.4 In the case of Daya Shankar Yadav (supra), this Court had
an occasion to consider the purpose of seeking the informatio n with
respect to antecedents. It is observed and held that the purpose of seeking
the information with respect to antecedents is to ascertain the character
and antecedents of the candidate so as to assess his suitabi lity for the
post. It is further observed that when an employee or a pr ospective
employee declares in a verification form, answers to the queries relating
to character and antecedents, the verification thereof can lead to any of
the following consequences:
“(a) If the declarant has answered the questions in the affirmative
and furnished the details of any criminal case (wherein he w as
convicted or acquitted by giving benefit of doubt for want of
evidence), the employer may refuse to offer him employment (or
if already employed on probation, discharge him from service), if
he is found to be unfit having regard to the nature and gravity of
the offence/crime in which he was involved.
RAJASTHAN RAJYA VIDYUT PRASARAN NIGAM LIMITED AND
ANOTHER v. ANIL KANWARIYA [M. R. SHAH, J.]
(b) On the other hand, if the employer finds that the criminal case
disclosed by the declarant related to offences whic h were
technical, or of a nature that would not affect the declar ant’s
fitness for employment, or where the declarant had been
honourably acquitted and exonerated, the employer may ignore
the fact that the declarant had been prosecuted in a criminal case
and proceed to appoint him or continue him in employment.
(c) Where the declarant has answered the questions in the negative
and on verification it is found that the answers were false , the
employer may refuse to employ the declarant (or discharge him,
if already employed), even if the declarant had been cleared o f
the charges or is acquitted. This is because when t here is
suppression or non-disclosure of material information bearing on
his character, that itself becomes a reason for not employing the
declarant.
(d) Where the attestation form or verification form does not contain
proper or adequate queries requiring the declarant to disclose his
involvement in any criminal proceedings, or where the candidate
was unaware of initiation of criminal proceedings when he gave
the declarations in the verification roll/attestation form, then the
candidate cannot be found fault with, for not furnishing the relevant
information. But if the employer by other means (say police
verification or complaints, etc.) learns about the involvement of
the declarant, the employer can have recourse to courses (a ) or
(b) above.”
Thereafter, it is observed and held that an employee ca n be
discharged from service or a prospective employee ma y be refused
employment on the ground of ……..suppression of material information
or making false statement in reply to queries relating to prosecution or
conviction for a criminal offence (even if he was ultimately acquitted in
the criminal case).
8.5 In the case of Abhijit Singh Pawar (supra) , when the
employee participated in the selection process, he tendered an affidavit
disclosing the pending criminal case against him. The affidavit was filed
on 22.12.2012. According to the disclosure, a case registered in the year
2006 was pending on the date when the affidavit was tendered. However,
within four days of filing such an affidavit, a compromise was entered
into between the original complainant and the employee and an application
727
for compounding the offence was filed under Section 320 Cr.P.C. The
employee came to be discharged in view of the deed of comprom ise.
That thereafter the employee was selected in the examination and was
called for medical examination. However, around the same time, his
character verification was also undertaken and after due consideration
of the character verification report, his candidature was rejected. The
employee filed a writ petition before the High Court challenging rejection
of his candidature. The learned single Judge of the High Court of Madhya
Pradesh allowed the said writ petition. The judgment and order passed
by the learned single Judge directing the State to appoint the employee
came to be confirmed by the Division Bench which led to appeal before
this Court. After considering catena of decisions on the point including
the decision of this Court in the case of Avtar Singh (supra), this Court
upheld the order of the State rejecting the candidature of the employee
by observing that as held in Avtar Singh (supra), even in cases where
a truthful disclosure about a concluded case was made, the emp loyer
would still have a right to consider antecedents of the candid ate and
could not be compelled to appoint such candidate. After reproduci ng
and/or re-considering para 38.5 of the decision in the case of Avtar
Singh (supra), in paragraph 13, this Court observed and held as under:
13. In Avtar Singh (supra), though this Court was principally
concerned with the question as to non-disclosure or wrong
disclosure of information, it was observed in para 38.5 that even
in cases where a truthful disclosure about a concluded case was
made, the employer would still have a right to consider antecedents
of the candidate and could not be compelled to appoint such
candidate.
In the said decision, this Court also considered the conduct on the
part of the employee in getting discharge on the basis of the compromise
which was obtained within a 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 h ad
applied, a criminal case was pending against him. Compromise
was entered into only after an affidavit disclosing such pendency
was filed. On the issue of compounding of offences and the effect
of acquittal under Section 320(8) of CrPC, the law declared by
this Court in Mehar Singh (2013) 7 SCC 685, specially in paras 34
and 35 completely concludes the issue. Even after the disclosure
RAJASTHAN RAJYA VIDYUT PRASARAN NIGAM LIMITED AND
ANOTHER v. ANIL KANWARIYA [M. R. SHAH, J.]
is made by a candidate, the employer would be well within h is
rights to consider the antecedents and the suitabili ty of the
candidate. While so considering, the employer can certainly take
into account the job profile for which the selection is undertaken,
the severity of the charges levelled against the candidate and
whether the acquittal in question was an honourable acquittal or
was merely on the ground of benefit of doubt or as a result of
composition.
9. Applying the law laid down by this Court in the aforesai d
decisions to the facts of the case on hand, the impugned order passed by
the Division Bench dismissing the appeal and confirming the order passed
by the learned single Judge quashing and setting aside the ord er of
termination terminating the services of the employee on the ground of
non-disclosure/suppression of material fact and filing a false declaration
and directing the appellants to reinstate the respondent-e mployee is
unsustainable.
10. Apart from the fact that at the time when the respo ndent
applied in the month of October/November, 2013 though he was already
convicted by the competent court and was given the benefit under Section
3 of the Act 1958 only, he did not disclose his conviction, but even at the
time when he filed a declaration on 14.04.2015 he filed a false declaration
that neither any criminal case is pending against him nor he has been
convicted by any court of law and relying upon such a declara tion the
appellants gave him appointment. Only on police verification/receipt of
the antecedent’s report from the Superintendent of Police, Sawai
Madhopur, the appellants came to know about the conviction of the
respondent. Therefore, the appellants were absolute ly justified in
terminating the services of the respondent.
11. Even the conduct on the part of the respondent to obtain the
order subsequently from the learned Sessions Court in an a ppeal and
getting the benefit of Section 12 of the Act 1958 deserves consideration.
As observed hereinabove, the judgment and order of conviction by the
learned trial Court was passed as far back as on 5.8.201 3. For two
years, the respondent did not file any appeal before the learned Sessions
Court. After a period of approximately two years and after he obtained
the appointment on the basis of the false declaration that n either any
criminal case is pending against him nor he has been convicted by any
court of law and having realised that his conviction and the benefit granted
729
under Section 3 of the Act 1958 by the learned trial Court only will come
in his way, subsequently after a period of two years he filed an appeal
before the learned Sessions Court on 11.08.29015 and the appeal came
to be disposed of within a period of one month, i.e., on 9.9.2015 and the
learned Sessions Court granted the benefit of Section 12 of the Act
1958. From the judgment and order passed by the learned Sessions Court,
it appears that the respondent only prayed for giving the benefit of Section
12 of the Act 1958 and nothing was contended by him with regard t o
conviction and order of sentence. Therefore, with a view to get out of
the conviction and the benefit of Section 3 of the Act 1958 on ly and
having realised that his conviction may come in his way, he preferred an
appeal after a period of two years and obtained the benefit of Section 12
of the Act 1958 which provides that a person found guilty of an offence
and dealt with under the provisions of section 3 or section 4 sha ll not
suffer disqualification, if any, attaching to a conviction of a n offence
under such law.
Even otherwise, subsequently getting the benefit of Section 12 of
the Act 1958 shall not be helpful to the respondent inasmuch as the
question is about filing a false declaration on 14.04.2015 that neither any
criminal case is pending against him nor he has been convicted by any
court of law, which was much prior to the order passed by the learned
Sessions Court granting the benefit of Section 12 of the Act 1958. As
observed hereinabove, even in case of subsequent acquittal, the employee
once made a false declaration and/or suppressed the mater ial fact of
pending criminal case shall not be entitled to an appointment as a matter
of right.
12. The issue/question may be considered from another angle,
from the employer’s point of view. The question is not about whether an
employee was involved in a dispute of trivial nature and whether he has
been subsequently acquitted or not. The question is about the credibility
and/or trustworthiness of such an employee who at the initial stage of
the employment, i.e., while submitting the declaration/verification and/or
applying for a post made false declaration and/or not disclosing and/or
suppressing material fact of having involved in a criminal case. If the
correct facts would have been disclosed, the employer migh t not have
appointed him. Then the question is of TRUST. Therefore, in such a
situation, where the employer feels that an employee who at the initial
stage itself has made a false statement and/or not disclosed the material
RAJASTHAN RAJYA VIDYUT PRASARAN NIGAM LIMITED AND
ANOTHER v. ANIL KANWARIYA [M. R. SHAH, J.]
facts and/or suppressed the material facts and therefore he cannot be
continued in service because such an employee cannot be relied upon
even in future, the employer cannot be forced to continue such an
employee. The choice/option whether to continue or not to continue such
an employee always must be given to the employer. At the cost of
repetition, it is observed and as observed hereinabove in catena of
decision such an employee cannot claim the appointment and/or continue
to be in service as a matter of right.
13. In view of the afore-stated facts and circumstances of the
case, both, the learned Division Bench as well as the lear ned Single
Judge have clearly erred in quashing and setting aside the order of
termination terminating the services of the respondent on the ground of
having obtained an appointment by suppressing material fact and filing a
false declaration. The order of reinstatement is wholly unten able and
unjustified.
14. In view of the above and for the reasons stated above, t he
present appeals succeed. The impugned judgment and order passed by
the Division Bench, as well as, the order passed by the lear ned Single
Judge quashing and setting aside the order of termination are hereby
quashed and set aside. Consequently, the writ petition fi led by the
respondent-employee stands dismissed and the order of termination stands
restored. However, in the facts and circumstances of the cas e, there
shall be no order as to costs.
Ankit Gyan Appeals allowed.