Jithin Kumar K.T v Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **MONDAY, THE 21ST DAY OF NOVEMBER 2016/30TH KARTHIKA, 1938** ## **WP(C).No. 37425 of 2015 (C)** **----------------------------** **PETITIONER(S):** ## **-------------** **JITHIN KUMAR K.T S/O.SHANMUGHAN K.T., KOODATHAZHA HOUSE, KOTTAKKAL P.O., IRINGAL, KOZHIKODE DISTRICT, PIN-673521.** **BY ADVS.SRI.ABRAHAM P.GEORGE SRI.K.VINODKUMAR (707/89) SMT.B.SHAMEERA** **RESPONDENT(S):** **--------------** ## **1. UNION OF INDIA** **REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, CENTRAL SECRETARIAT, NEW DELHI-110001.** ## **2. DIRECTOR GENERAL OF POLICE** **CRPF, BLOCK NO.1, CGO COMPLEX, LODHI ROAD, NEW DELHI-110003.** **3. INSPECTOR GENERAL OF POLICE SOUTHERN SECTOR, CRPF, ROAD NO.10C, GAYATHRI HILLS, HYDERABAD, PIN-500033.** **4. THE DEPUTY AND INSPECTOR GENERAL OF POLICE GC CRPF TARALU, AT GROUP CENTRE, CRPF CAMPUS, YELAHANKA, BENGALURU-560064.** ## **5. COMMANDANT** **BATTALIAN NO.228, GC, DIGP GROUP CENTRE CRPF TARALU, BANGALARU-650064.** **R1-R5 BY ADV. SRI.T.V.VINU, CGC** **R BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R BY SMT.SHALINA O.M., CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 37425 of 2015 (C)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXT.P1 : TRUE COPY OF THE ORDER NO.D.V.1/2014-GCTRC EC 2 DT.6-12-14 TERMINATION OF SERVICE ISSUED TO THE PETITIONER.** **EXT.P2 : TRUE COPY OF THE ORDER IN CC 446/13 IN THE FILE OF JFCM COURT, PAYYOLI.** **EXT.P3 : TRUE COPY OF THE POLICE CLEARANCE CERTIFICATE NO.685/CAMP/2003/DR(279) DT.22-12-2014 ISSUED BY THE DISTRICT POLICE CHIEF, KOZHIKODE RURAL.** **EXT.P4 : TRUE COPY OF THE ORDER IN APPEAL NO.R.XIII-32/2015 ADMN-7 DT. 25-8-15.** ## **RESPONDENT(S)' EXHIBITS:** **-----------------------** **EXT.R1(A): TRUE COPY OF THE VERIFICATION ROLL.** **EXT.R1(B): TRUE COPY OF LETTER DATED 31.7.2014 OF THE DISTRICT COLLECTOR, KOZHIKODE.** **EXT.R1(C): TRUE EXTRACT OF OM NO.11012/7/91-ESTT(A) DATED 19.05.1993.** **//TRUE COPY//** **P.S. TO JUDGE** ## **A.K.JAYASANKARAN NAMBIAR, J. ------------------------------W.P.(C).NO.37425 OF 2015 (C) ----------------------------------Dated this the 21[st] day of November, 2016** ## **J U D G M E N T** The petitioner responded to a recruitment notification for appointment as R.T. (Bugler), and secured appointment as such, under the CRPF. Subsequent to his entry into service, when his verification roll was sent to the District Collector, Kozhikode, for verification of his character and antecedents, the District Collector informed the respondents that the Additional Director General of Police, Thiruvananthapuram, had informed that the petitioner was arrayed as accused No.7 in Crime No.76/2013 under Sections 143, 145, 147, 148, 153 read with Section 149 of the Indian Penal Code of Payyoli Police Station, and the case was pending trial before the Judicial First Class Magistrate Court, Payyoli, as C.C.No.446/2013. Finding that the petitioner had suppressed the fact of involvement in the criminal case, while filling the verification roll, and thereby falsely certified that the information therein was correct, the services of the petitioner was terminated by Ext.P1 order dated 6.12.2014. **W.P.(C).No.37425/2015** **2** 2. Aggrieved by Ext.P1 order, the petitioner approached the 3[rd] respondent, through a statutory appeal, stating inter alia that he never participated in the incident, and his name was erroneously shown in the final report submitted by the police. He maintained that he had correctly declared information in the verification roll, as he was not aware of the said criminal proceedings, and also stated that the criminal case against him was subsequently withdrawn at the instance of the Prosecution, and he stood discharged under Section 321(a) of the Code of Criminal Procedure, as evident from Ext.P2 order of the Judicial First Class Magistrate. The appeal preferred by the petitioner was however rejected by the 3[rd] respondent, by Ext.P4 order dated 25.8.2015. In the writ petition, Exts.P1 and P4 orders are impugned. 2. A counter affidavit has been filed on behalf of the respondents, wherein, reference is made to Ext.R1(c) Office Memorandum, to contend that, as per the instructions in force, a person, who obtained employment by suppressing facts in the verification roll, had to be discharged from service. The averments in the writ petition, that the petitioner was not aware of the pendency of **W.P.(C).No.37425/2015** **3** the criminal case, when he filled his verification roll, is denied by the respondents. The subsequent events such as the petitioner's discharge in the criminal case etc. are stated to be irrelevant to the issue of whether the petitioner had obtained employment by stating false particulars. Exts.P1 and P4 orders are therefore sought to be justified, on the reasons stated therein. 3. I have heard the learned counsel for the petitioner as also the learned Central Government Counsel for the respondents. 4. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that this is a case where the petitioner's service was terminated for the reason that the petitioner had, in response to a question as to whether there was any case pending against him, in a court of law, at the time of filling his verification roll, answered in the negative. It is relevant to note, however, that it is the specific case of the petitioner that he was not aware of his implication in a case at the time of filling the verification roll, and, at any rate, he was subsequently discharged in the criminal case. This aspect, though raised in the appeal, was summarily **W.P.(C).No.37425/2015** **4** rejected by the Appellate Authority, solely relying on the Government instructions that were in vogue. In other words, the Appellate Authority proceeded as if he had no discretion at all, and was constrained to uphold the punishment of termination of service that had been ordered by the disciplinary authority. In this connection, it would be apposite to notice a recent judgment of a three member Bench of the Supreme Court in **Avtar Singh v. Union of India (UOI) and Others - [(2016) 8 SCC 471]** , wherein, after an analysis of the gamut of case law on the point, the court summarised its conclusion, as follows: “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 of **W.P.(C).No.37425/2015** **5** 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 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 of offence of heinous/serious nature, or 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 **W.P.(C).No.37425/2015** **6** 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 _sppressio veri_ or _suggestio falsi,_ knowledge of the fact must be ” attributable to him. In the light of the aforesaid directions of the Supreme Court, I am of the view that, it would be incumbent upon the Appellate Authority, to reconsider the appeal preferred by the petitioner, in the light of the guidelines laid down by the Supreme Court. Accordingly, I **W.P.(C).No.37425/2015** **7** quash Ext.P4 order, and dispose the writ petition directing the 3[rd] respondent to pass fresh orders in the appeal preferred by the petitioner, within a period of three months from the date of receipt of a copy of this judgment, after hearing the petitioner. The petitioner shall produce a copy of the writ petition along with a copy of this judgment, before the 3[rd] respondent, for further action. ## **A.K.JAYASANKARAN NAMBIAR JUDGE** prp/22/11/16