State of West Bengal & Ors. v. Mitul Kumar Jana

JUDGMENT J. K. MAHESHWARI, J. 1. This appeal arises out of the judgement of the Hi gh Court of Judicature at Calcutta, dated 16.12.2010, passed in ‘WPST No. 600 of 2010’ fi led by respondent Mitul Kumar Jana. The High Court by the said judgment allowed the writ and set-aside the order dated 23.11.2010 passed by the West Bengal Administrative Tribunal (for short “Tribunal”) and directed the appellant no. 2, i.e., the Superintendent of Police to appoint the respondent as constable in the West Bengal police force. 2. Succinctly stated, facts of this case are that the respondent appeared before appellant no. 2 – Superintendent of Police, South 24 Parganas, for measurement, physical effi ciency test and for interview on 06.09.2008, 09.09.2008 and 10.09.2008 respectively. He was declared fi t in the said selection, and placed in the merit list of the constables in the West Bengal Police Force. Pursuant thereto, respondent was supplied with the ‘Police Verifi cation Roll’ and asked to fi ll-up the same in his own handwriting. He deposited the same with the appointing authority within the time schedule. As per the police verifi cation report sent by the local Police Station, it was alleged that the respondent was implicated in a criminal case bearing Case No. 124 of 2007, dated 03.08.2007, registered at Kakdwip Police Station. After investigation, charge-sheet was fi led on 31.08.2007, whereafter, the trial was pending at the time of his interview and physical test. The police report further indicated that the respondent was granted anticip atory bail on 16.08.2007 and regular bail on 27.08.2007. 3. Upon scrutinizing the said verifi cation form, the authority formed an opinion that the respondent had suppressed material information regarding his involvement in a pending criminal case. The verifi cation roll submitted by the respondent was sent to the Intelligence Branch, West Bengal for opinion. Vide Memo no. 3875/S – 503-08/S.A. – II/VR, dated 09.02.2009, the Deputy Inspector General of Police, Intelligence Branch had informed that the respondent has supressed the fact of his involvement in a criminal case and as the case against the respondent is sub-judice, no opi nion for his suitability could be given at this stage. In the given facts , order of appointment was not issued by the appellant. However, the respondent fi led Original Application No. 343 of 2010 before the Tribunal seeking directions to issue the letter of appointment on account of his selection for t he post of constable in the West Bengal Police Force. The Authorities fi led their reply and contended that the respondent was involved in a criminal ca se and despite having knowledge of the same, he had not disclosed the same in the verifi cation roll and suppressed the information about the pending criminal case, hence, he is not suitable for the appointment. 4. The Tribunal vide order dated 23.11.2010, disposed-off the Original Application and was of the opinion that it is not a case of sup pression of information by the respondent. It was said that, without his acquittal in the pending criminal case, direction to issue the letter of appoi ntment cannot be recommended and observed that, in case the respondent is acquitted, his case may be considered by the appellant as per rules. 5. Being aggrieved, the respondent preferred Writ Petition before the High Court at Calcutta and prayed for appropriate directions. The Court in the impugned judgement referred to column no. 12 of the verifi cation roll and opined that the information sought in the said column was of a rrest, detention and conviction. As per details asked in the said column, information regarding pending criminal case was not required to be furnished. Therefore, the High Court concurred with the fi nding of the Tribunal on the issue of suppression of material information and was of the opinion that because the respondent has not yet been held guilty in the criminal case by the competent Court, therefore, presumption of innocence in his favour still remains. Hence, the appellant was directed to issue the letter of appointment subject to fi nal outcome of the pending criminal case. Being aggrieved by the said order , this appeal has been fi led by the State of West Bengal. 6. Learned counsel for the appellants submits that High Court committed an error in directing appointment of the respondent particularly during the pendency of a criminal case against him. The said direction would aff ect the morale of the police force and undermine the public faith in it. Emphasizing the object of furnishing the information in the verifi c ation roll, it was urged that the character of a person to judge his suitability to the post in public employment is a necessary concomitant to avoid defacing of the Police Department. In support of the said contention, reliance is placed 617STATE OF WEST BENGAL v. MITUL KUMAR JANA [J. K. MAHESHWARI, J.] on a judgement in the case of “R. Radhakrishnan Vs. Director General of Police & Others, 2008 (1) SCC 660” to urge that even on acquittal of a candidate, he can still be denied appointment on account of suppression of material information regarding pendency of a criminal case. 7. Per contra, learned counsel for the respondent referrin g to the details of column 12 of the verifi cation roll, submits that the information sought was vague and considering the nature of the information asked, the respondent was not required to furnish the details of the pending criminal case. The Tribunal and the High Court have appreciated the said issue and rightly recorded the fi nding that it is not a case of suppression of material information, and the High Court was right in directing the appellant to issue the letter of appointment subject to the decision in the pending cr iminal case. He further contended that, in the said criminal case, res pondent has been honourably acquitted. Therefore, there is no impediment befo re the appellants to carry out such directions. Placing reliance on t he judgement of “Secy., Deptt. of Home Secy., A.P. and Others Vs. B. Chinnam Naidu, (2005) 2 SCC 746”, it is urged that since specifi c requirement to mention about the pending criminal case was not sought in the verifi cation roll, the respondent cannot be held at fault for suppression of material information. 8. Having heard learned counsel for the parties and on perusal of the material placed, it is not in dispute that vide judgement dated 04.06.2012, the learned Judicial Magistrate (First Class), Kakd wip District, South 24 Parganas, acquitted the respondent from the char ges of Sections 147/149/447/323/506 of IPC in Criminal Case No. 362 /2004. After appreciating the evidence as brought on record, the Court found that the prosecution has hopelessly failed to bring home the guilt and prov e the charges against the respondent. On account of acquittal of the accused persons, the objection regarding pendency of crimin al case no more subsists. In addition, on perusal of the prosecution story of the said case, the cause of dispute was of egress and ingress to a passage for which the order of attachment was passed by the Sub-Divisional M agistrate. As alleged, the accused persons started raising fencing which was opposed by the complainant. For the said incident, FIR against eight accuse d persons including the respondent was registered. In the said judgement, the name of the respondent was shown as “Mridul Jana” and not his correct name, i.e., “Mitul Kumar Jana”. Be that as it may, as discussed above, the prosecution has miserably failed to prove the charges. In our considered view, the said allegations do not constitute any off ence aff ecting moral turpitude and shall not cause any impediment for public employment to a candidate who got selected by the due process of law. 9. In the facts of the case, the other objection raised by the appellant is related to suppression of material information in the verifi cation roll. For analysing the sustainability of the said objection, the language used to ask information in Column No. 12 of verifi cation roll may be relevant and for ready reference, it is reproduced as under; “Have you been arrested, detained or convicted by a court of any off ence if the answer is ‘yes’ the full particulars of the Arrest or detention or conviction and the sentence should be given. Answer: No” 10. Bare perusal of the details of the information sought in the above column indicates that, it was regarding arrest, detention and conviction by a Court in any off ence. In case the answer was ‘yes’, then full particulars of the arrest or detention or conviction and sentence were required to be furnished. In case the answer was in the negative, no other particulars were required to be furnished. In the case on hand, in reply to the information as ked the respondent gave the answer as “no”. As per the contents of the information sought and as per the answer given by the respondent, he is not require d to furnish information regarding pending criminal case. Therefore, supply of such information by the respondent does not fall within the expres sion ‘suppression of material information’. This Court had an occasion to deal with the similar issue in the case of B. Chinnam Naidu (supra). The relevant paragraph of the said judgment is reproduced herein below – “9. …The State Government and the Tribunal appeared to have proceeded on the basis that the respondent ought to have indicated the fact of arrest or pendency of the case, though column 12 of the attestation form did not require such information being furnished. The learned counsel for the appellants submitted that such a requirement has to be read into an attestation form. We fi nd no reason to accept such contention. There was no specifi c requirement to mention as to whether 619 any case is pending or whether the applicant had been arrested. In view of the specifi c language so far as column 12 is concerned the respondent cannot be found guilty of any suppression.” 11. In the above case, the Court has distinguished the judgm ent of “Kendriya Vidyalaya Sangathan & Others Vs. Ram Ratan Yadav, (2003) 3 SCC 437”, on the pretext that the details of information sought i n the verifi cation roll in said case was diff erent. In the facts of the present case, the information sought from the respondent in the verifi ca tion form was vague. Similar was the position in the case of Chinnam Naidu (supra). Therefore, the said judgment squarely applies in the fac ts of this case. Though in the said case, fi nding regarding desirability for appointment of a person in government service was not decided because it was not the subject matter. 12. In view of the discussion made herein above, the opinion given by the Deputy Inspector General of Police, Intelligence Branch, a nd the stand taken by the Department before the Tribunal and the High Court regarding suppression of material information by the respondent cannot be countenanced. The Tribunal and the High Court have rightly recorded the fi nding that it is not a case of suppression of material information and we affi rm such fi nding. Simultaneously, the criminal case registered against the respondent were for petty off ences. The allegations in the said case were neither of heinous/serious off ences, nor related to an off ence involving moral turpitude. In the said case, the respondent was honourably acquitted because the prosecution had miserably failed to prove the charges. Hence, in our view, prima-facie there appears no impediment to issue the order of appointment in favour of the respondent. 13. It is relevant to state here that on the issues relating to suppression of information and/or submitting false information and as to the question of having been arrested or regarding pendency of a criminal case and eff ect of conviction/acquittal in such criminal cases, there were confl icting opinions of Division Bench judgments of this Court. On making a reference, the said controversy has been decided in the case of “Avtar Singh Vs. Union of India and Others, (2016) 8 SCC 471”. The Court after considering various judgments has taken a holistic approach and summarised certain yardsticks in Paragraph 38, which are reproduced as thus: STATE OF WEST BENGAL v. MITUL KUMAR JANA [J. K. MAHESHWARI, J.] “38. We have noticed various decisions and tried to explain an d reconcile them as far as possible. In view of aforesaid discussion, we summarize our conclusion thus: 38.1 Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether be fore 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 cancellati on 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 Governmen t 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 fi lling of the application/verifi cation form and such fact later comes to knowledge of employer, any of the following recourse 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 off ence which if disclosed would not have rendered an incumbent unfi t 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 off ence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefi t 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. 621 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 chara cter verifi cation form regarding pendency of a criminal case of triv ial 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 signifi cance 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 fi lling the form, still it may have adverse impact and the appointing authority would take decision after considering t he seriousness of the crime. 38.9 In case the employee is confi rmed in service, holding Departmental enquiry would be necessary before passing order of termi nation/ removal or dismissal on the ground of suppression or submitting false information in verifi cation form. 38.10 For determining suppression or false information attestation/ verifi cation form has to be specifi c, not vague. Only such information which was required to be specifi cally 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 whi le addressing the question of fi tness. 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.” 14. As per the said case, para 38.10 comes to the aid of the respondent, because in this case, the information sought in verifi cation roll was not specifi c and vague in nature. The respondent has specifi cally disclosed the STATE OF WEST BENGAL v. MITUL KUMAR JANA [J. K. MAHESHWARI, J.] information which was required to be furnished. Considering the subsequent development of the clean acquittal of respondent for the petty off ences, it requires consideration objectively by the authority, about the question of fi tness, ignoring the issue of supressing the information. Even in case where the information regarding pending criminal case is truthfully furni shed and on acquittal therein, an employer has the discretion to consider the antecedents while issuing the letter of appointment. The High Court could not have directed the issuance of the letter of appointment as per para 38.5 of the case of Avtar Singh (supra). In our view, the issuance of order of appointment is required to be left on the discretion of the employer and the High Court ought not to have taken away the said discretion. Accordingly, we modify the order passed by the High Court. 15. In view of the discussion made herein above, we confi rm the fi ndings of the Tribunal and the High Court on the issue of suppression of material information. As the respondent was not involved in heinous/serious off ence or any off ence involving moral turpitude, and the fact that in the said criminal case he has been honourably acquitted, therefore, modifying the order of the High Court, we direct the appellant to consider t he case of the respondent and issue order of appointment to the post of constabl e in West Bengal Police Force within a period of four weeks fr om the date of passing of this order. Needless to observe that the authorities shall take note of the discussion made herein above and shall exercise their discretion judiciously in assessing the suitability and antecedents of the prospective candidate. It is made further clear that in the event of issuance of the order of appointment, the respondent would only be entitled to notional benefi ts including continuity in service and pay fi xation at par with other similarly situated persons and he would not be entitled for salary and back wages till the date of his appointment. 16. Accordingly, this appeal stands disposed-off in the above terms. Pending application(s), if any, shall also stand disposed-off . No order as to costs. Headnotes prepared by : Appeal disposed of. Divya Pandey