AVTAR SINGH NO. 94134415 EX. RT.. vs. UNION OF INDIA AND ORS MINISTRY OF HOME AFFAIRS SECRETARY

1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITIOIN [C] NO.20525/2011 Avtar Singh … Petitioner Vs. Union of India & Ors. … Respondents [With SLP [C] Nos.4757/2014 and 24320/2014] J U D G M E N T ARUN MISHRA, J. 1. The cases have been referred to for resolving the conflict of opinion in the JUDGMENT various decisions of Division Benches of this Court as noticed by this Court in Jainendra Singh v. State of U.P. through Principal Secretary, Home & Ors. (2012) 8 SCC 748. The Court has considered the cleavage of opinion in various decisions on the question of suppression of information or submitting false information in the verification form as to the question of having been criminally prosecuted, arrested or as to pendency of a criminal case. A Division Bench of this Court has expressed the opinion on merits while referring the matter as to the various Page 1 2 principles to be borne in mind before granting relief to an aggrieved party. Following is the relevant observation made by a Division Bench of this Court :

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JUDGMENT 30. When we consider the above principles laid down in the majority of the decisions, the question that looms large before us is when considering such claim by the candidates who deliberately suppressed information at the time of recruitment, can there be different yardsticks applied in the matter of grant of relief. 31. Though there are very many decisions in support of the various points culled out in the above paragraphs, inasmuch as we have noted certain other decisions taking different view of coordinate Benches, we feel it appropriate to refer the Page 3 4 abovementioned issues to a larger Bench of this Court for an authoritative pronouncement so that there will be no conflict of views and which will enable the courts to apply the law uniformly while dealing with such issues.”

an appointment order has been secured fraudulently, the appointment is voidable at the option of the employer and the employee cannot get any equity in his favour and no estoppel is created against the employer only by the fact that the employee has continued in service for a number of years. It has been further observed that if appointment is secured on forged documents, it would amount to misrepresentation and fraud. The employer has a right to terminate the services on suppression of important information or giving false information, having regard to nature of employment. Verification of character and antecedents is important if the employer has found an incumbent to be undesirable for appointment to a disciplined force. It JUDGMENT cannot be said to be unwarranted. The Court thus further opined that suppression of material information necessary for verification of character/antecedents will have a clear bearing on character and antecedents of a candidate in relation to his continuity in service and such a person cannot claim a right for appointment or continuity in service. The Bench was of the view that in uniformed service, suppression or false information can be viewed seriously as it requires higher level of integrity and the employer is supposed to find out before an appointment is Page 4 5 made that criminal case has come to an end and pendency of a case would serve as a bar for appointment and in such cases of suppression whether different yardsticks can be applied as noted in the various decisions of this Court. The question which

view or the other on the facts of the case. It would be appropriate to refer to the various decisions rendered by this Court; some of them have been referred to in the impugned order. 3. It cannot be disputed that the whole idea of verification of character and antecedents is that the person suitable for the post in question is appointed. It is one of the important criteria which is necessary to be fulfilled before appointment is made. An incumbent should not have antecedents of such a nature which may adjudge him unsuitable for the post. Mere involvement in some petty kind of case would not render a person unsuitable for the job. Way back in the year 1983, in JUDGMENT State of Madhya Pradesh v. Ramashanker Raghuvanshi & Anr. (1983) 2 SCC 145, where a teacher was employed in a municipal school which was taken over by the Government and who was absorbed in Government service in 1972 subject to verification of antecedents and medical fitness. The termination order was passed on the basis of a report made by the Superintendent of Police to the effect that the respondent was not a fit person to be entertained in Government service, as he had taken part in ‘RSS and Jan Sangh activities’. There was no allegation of Page 5 6 involvement in subversive activities. It was held that such activities were not likely to affect the integrity of individual’s service. To hold otherwise would be to introduce ‘McCarthyism’ into India which is not healthy to the philosophy of our

who take part in political activities and if they do get involved in some form of agitation or the other, is it to be to their ever lasting discredit ? Sometimes they feel strongly on injustice and resist. They are sometimes pushed into the forefront by elderly persons who lead and mislead them. Should all these young men be debarred from public employment ? Is Government service such a heaven that only angels should seek entry into it ? This Court has laid down that the whole business of seeking Police report about the political belief and association of the past political activities of a candidate for public employment is repugnant to the basic rights guaranteed by the Constitution. This Court has considered in Ramashanker JUDGMENT Raghuvanshi ’s case (supra) the decision in Garner v. Board of Public Works 341 US 716 thus : “5. In another loyalty oath case, Garner v. Board of Public Works 341 US 716, Douglas, J. had this to say : Here the past conduct for which punishment is exacted is single – advocacy within the past five years of the overthrow of the Government by force and violence. In the other cases the acts for which Cummings and Garland stood condemned covered a wider range and involved some conduct which might be vague and uncertain. But those differences, seized on here in hostility to the constitutional Page 6 7

6. In the same case, Frankfurter, J. observed : The needs of security do not require such curbs on what may well be innocuous feelings and associations. Such curbs are indeed self-defeating. They are not merely unjustifiable restraints on individuals. They are not merely productive of an atmosphere or repression uncongenial to the spiritual vitality of a democratic society. The inhibitions which they engender are hostile to the best conditions for securing a high-minded and high-spirited public service. x x x x x JUDGMENT 10. We are not for a moment suggesting that even after entry into government service, a person may engage himself in political activities. All that we say is that he cannot be turned back at the very threshold on the ground of his past political activities. Once he becomes a government servant, he becomes subject to the various rules regulating his conduct and his activities must naturally be subject to all rules made in conformity with the Constitution.” At the same time, this Court has also observed that after entry into Government service, a person has to abide by the service rules in conformity with the Constitution. Page 7 8 4. A 3-Judge Bench of this Court in T. S. Vasudavan Nair v. Director of Vikram Sarabhai Space Centre & Ors. (1988) Supp SCC 795 had considered a case where the employee had suppressed the fact that during emergency he had been convicted

one occasion. This Court has laid down that cancelling the offer of appointment due to such non-disclosure was illegal and the employer was directed to appoint him as a Lower Division Clerk. Thus this Court has taken the view that non-disclosure of aforesaid case was not a material suppression on the basis of which employment could have been denied and the person adjudged unsuitable for being appointed as an LDC. This Court has laid down thus : “2. We have heard learned counsel for the parties. In the special facts and circumstances of this case we feel that the appellant should not have been denied the employment on the sole ground that he had not disclosed that during emergency he had been convicted under the Defence of India Rules for having shouted slogans on one occasion. We, therefore, set aside the judgment of the High Court and also the order dated August 1, 1983 cancelling the offer of appointment. The respondents shall issue the order of appointment to the appellant within three months appointing him as a Lower Division Clerk, if he is not otherwise disqualified, with effect from the date on which he assumes duty. It is open to the respondents to employ the appellant at any place of their choice. The appeal is disposed of accordingly.” JUDGMENT 5. In Union of India & Ors. v. M. Bhaskaran (1995) Supp 4 SCC 100, it was held that if some persons have procured employment in Railway on the basis of Page 8 9 bogus and forged casual labourer service cards, they were rightly held guilty of misrepresentation and fraud. Mere long continuance of such employment could not create any equity in their favour or estoppel against the employer. The question

casual labourer service cards was covered under Rule 31(1)(i) and (iii) of the Railway Services (Conduct) Rules, 1966. It was held that the employment procured by fraud is voidable at the option of the employer and employee cannot plead estoppel. This Court has laid down thus : “6. It is not necessary for us to express any opinion on the applicability of Rule 3(1)( i ) and ( iii ) on the facts of the present cases for the simple reason that in our view the railway employees concerned, respondents herein, have admittedly snatched employment in railway service, maybe of a casual nature, by relying upon forged or bogus casual labourer service cards. The unauthenticity of the service cards on the basis of which they got employment is clearly established on record of the departmental enquiry held against the employees concerned. Consequently, it has to be held that the respondents were guilty of misrepresentation and fraud perpetrated on the appellant-employer while getting employed in railway service and had snatched such employment which would not have been made available to them if they were not armed with such bogus and forged labourer service cards. Learned counsel for the respondents submitted that for getting service in railway as casual labourers, it was strictly not necessary for the respondents to rely upon such casual service cards. If that was so there was no occasion for them to produce such bogus certificates/service cards for getting employed in railway service. Therefore, it is too late in the day for the respondents to submit that production of such bogus or forged service cards had not played its role in getting employed in railway service. It JUDGMENT Page 9 10

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JUDGMENT Page 11 12 It is apparent from the aforesaid discussion that the case of M. Bhaskaran (supra) did not relate at all to the suppression of material facts or submitting false information but pertained to obtaining employment on the basis of forged or bogus

distinguishable. It has a different field to operate. Though the principles laid down therein may be attracted to some extent in a given case in a particular factual scenario but are not of general application in the cases in which the question involved is with which we are presently dealing with. 6. The next decision mentioned by the Division Bench in the order of reference is in Delhi Administration through its Chief Secretary & Ors. v. Sushil Kumar (1996) 11 SCC 605 in which appointment was denied to an incumbent who was duly selected for the post of Constable in Police service subject to verification of character and antecedents. On verification of his antecedents it was found that he JUDGMENT was involved in a criminal case under sections 304, 324/34 and 324 IPC. The incumbent was appointed in Delhi Police service in the year 1990. On character verification, his name was rejected. The tribunal allowed the application and directed the appointment since employee had been acquitted in the said criminal case. It was held by this Court that mere acquittal in the criminal case was not enough once it was found that it was not desirable to appoint such a person as a Constable in the disciplined force. This Court opined that the view taken by the Page 12 13 employer in the background of the case cannot be said to be unwarranted, though he was discharged or acquitted. Antecedents of the incumbents could not be said to be proper. The Court has held thus :

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It is apparent that the background of the case was considered by the employer in the case of Sushil Kumar (supra) and this Court has emphasized in the aforesaid background that the decision of the employer was not unwarranted as the incumbent was rightly not found desirable for appointment to the service. It was not a case of suppression in the verification form. The decision does not deal with the effect of suppression but the case has turned on the background of the facts of the case in which the incumbent was involved as is apparent from the discussion made by this Court in para 3 quoted above. Thus, it is apparent that the background JUDGMENT facts of the case have to be taken into consideration by the employer or court while dealing with such matters. 7. Another decision of this Court which has been noted in the order is Commissioner of Police, Delhi & Anr. v. Dhaval Singh (1999) 1 SCC 246. It was a case pertaining to the verification or antecedents form in August, 1995 in which pendency of criminal case was not mentioned but it was disclosed on 15.11.1995. An application was submitted mentioning that he had inadvertently failed to Page 14 15 mention in the appropriate column regarding the pendency of the criminal case and the latter may be treated as an information despite such disclosure before passing an order of cancellation of candidature, was not taken into consideration by the

Dhaval Singh was not appropriate. It was without proper application of mind and without taking into consideration all relevant material. The tribunal has therefore rightly set it aside. This Court has laid down thus : “5. That there was an omission on the part of the respondent to give information against the relevant column in the Application Form about the pendency of the criminal case, is not in dispute. The respondent, however, voluntarily conveyed it on 15-11-1995 to the appellant that he had inadvertently failed to mention in the appropriate column regarding the pendency of the criminal case against him and that his letter may be treated as “information”. Despite receipt of this communication, the candidature of the respondent was cancelled. A perusal of the order of the Deputy Commissioner of Police cancelling the candidature on 20-11-1995 shows that the information conveyed by the respondent on 15-11-1995 was not taken note of. It was obligatory on the part of the appellant to have considered that application and apply its mind to the stand of the respondent that he had made an inadvertent mistake before passing the order. That, however, was not done. It is not as if information was given by the respondent regarding the inadvertent mistake committed by him after he had been acquitted by the trial court — it was much before that. It is also obvious that the information was conveyed voluntarily. In vain, have we searched through the order of the Deputy Commissioner of Police and the other record for any observation relating to the information conveyed by the respondent on 15-11-1995 and whether that application could not be treated as curing the defect which had occurred in the JUDGMENT Page 15 16

8. In Regional Manager, Bank of Baroda v. Presiding Officer, Central Govt. Industrial Tribunal & Anr. (1999) 2 SCC 247, the respondent employee secured the appointment on a clerical post concealing information of criminal prosecution under section 307 IPC. Subsequent to his appointment, he was convicted by the criminal court. After one year of the conviction, Bank issued a show cause notice against the proposed termination of his service and for pendency of criminal prosecution. After about one and a half years, second show-cause notice was issued and after 1 year 8 months, the order of termination of services was passed. In the appeal the employee was acquitted. This Court did not interfere under Article 136 JUDGMENT of the Constitution in the decision of the tribunal. In the facts of the case, directing reinstatement as punishment was found by the Labour Court to be an extreme punishment and not warranted due to acquittal in the criminal case. At the same time, it was made clear that the decision was rendered on the peculiar facts of the case and will not be treated as a precedent in future. This Court has discussed the matter thus : Page 16 17

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The Court has taken note of the fact that it was not an offence involving cheating or misappropriation which would have direct impact on the decision of the appointing Bank. By the time the Labour Court decided the matter the employee was acquitted by the High Court. The passage of time created a situation JUDGMENT wherein the original suppression or involvement of the respondent in the prosecution for an offence under section 307 IPC did not remain so pernicious or misconduct to visit him punishment of termination. In the peculiar facts this Court has not interfered but at the same time laid down that the decision would not be treated as a precedent in future. Page 19 20 9. In Kendriya Vidyalaya Sangathan & Ors. v. Ram Ratan Yadav (2003) 3 SCC 437, a question arose as to suppression of material information relating to character and antecedents. In clause 4 of the offer of appointment offered to Physical

considered a major offence for which the punishment may extend to dismissal from service. Suppression of information was held to be material as a criminal case under sections 323, 341, 294, 506-B read with section 34 IPC was pending on the date when the respondent filled the attestation form. This Court has observed that suppression of material information or making a false statement has a clear bearing on the character and antecedents in relation to his continuance in service. It was also held that mere fact that the case was withdrawn by the State Government was not much material. This Court has discussed the matter thus : “10. The memorandum dated 7-4-1999/8-4-1999 terminating the services of the respondent refers to columns 12 and 13 of the attestation form, the criminal case registered against the respondent on the basis of the report given to the appellants by IG, Police, suppression of material information by the respondent while submitting attestation form and violating the clause stipulated under para 9 of the offer of appointment issued to him, OM dated 1-7-1971 of the Cabinet Secretary, Department of Personnel, New Delhi, in which it is clearly mentioned that furnishing of false information or suppression of factual information in the attestation form would be disqualification and is likely to render the candidate unfit for employment under the Government and that as per clause 4 of the offer of appointment, the respondent was on probation for a JUDGMENT Page 20 21

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JUDGMENT Page 22 23 It is clear from the decision in Ram Ratan Yadav (supra) that besides considering the effect of suppression, this Court has observed that having regard to

the involvement in the criminal case would have some impact on the minds of students of impressionable age. This Court has further observed that the order of termination of service shows that there had been due consideration of various aspects by the concerned authority while passing the order of termination. It is clear from the decision in Ram Ratan (supra) also that there is a discretion with the employer to terminate the services. Character, conduct and antecedents do have some impact on the nature of employment and there has to be due consideration of various aspects. Thus, it follows that merely because there is a power to terminate services or cancellation of offer of appointment, it does not follow that the person JUDGMENT should be removed outrightly. Various aspects have to be considered and the discretion so used should not be arbitrary or fanciful. It has to be guided on certain principles for which purpose verification is sought. 10. In Secretary, Department of Home Secy., A.P. & Ors. v. B. Chinnam Naidu (2005) 2 SCC 746, the case pertained to suppression of material information and/or giving false information in the attestation form. In the attestation form the Page 23 24 respondent had not mentioned about his arrest and pendency of a case against him. The tribunal held that the employee had suppressed material information while filling up the attestation form and upheld the order of termination. The High Court

denying appointment to the respondent. This Court has noted that as per the relevant column of the attestation form the candidate was required to indicate whether he had ever been convicted by a court of law or detained under any State/Central preventive detention laws. He was not required to indicate whether he had been arrested in any case or any case was pending against him. In view of the relevant column in the form it could not be said that the respondent had made false declaration or had suppressed material information. As such this Court held that the action of the employer in not permitting the respondent to join the training due to suppression of truth in the attestation form, was not sustainable. This Court JUDGMENT observed that the requirement in the present case was “conviction” and not “prosecution”. This Court has held thus : “8. In order to appreciate the rival submissions it is necessary to take note of column 12 of the attestation form and column 3 of the declaration. The relevant portions are quoted below: “ Column 12 .—Have you ever been convicted by a court of law or detained under any State/Central preventive detention laws for any offence whether such conviction sustained in court of appeal or set aside by the appellate court if appealed against.” Page 24 25 “ Column 3 .—I am fully aware that furnishing of false information or suppression of any actual information in the attestation form would be a disqualification and is likely to render me unfit for employment under the Government.

JUDGMENT 11. This Court in R. Radhakrishnan v. Director General of Police & Ors. (2008) 1 SCC 660 considered a case where the appellant intended to obtain appointment in police force. Application for appointment and the verification roll were both in Hindi and also in English. The application was filed for appointment to the post of Page 25 26 a Fireman on 5.1.2000. He was involved in the criminal case which occurred on 15.4.2000 under section 294(b) IPC. He was released on bail and was acquitted of the said charge on 25.9.2000. However his services were dispensed with on the

order and had held thus : “10. Indisputably, the appellant intended to obtain appointment in a uniformed service. The standard expected of a person intended to serve in such a service is different from the one of a person who intended to serve in other services. Application for appointment and the verification roll were both in Hindi as also in English. He, therefore, knew and understood the implication of his statement or omission to disclose a vital information. The fact that in the event such a disclosure had been made, the authority could have verified his character as also suitability of the appointment is not in dispute. It is also not in dispute that the persons who had not made such disclosures and were, thus, similarly situated had not been appointed.” In R. Radhakrishnan (supra) this Court had taken note of the decision in JUDGMENT Sushil Kumar (supra) in which the background facts of the case in which the employee was involved were considered, and the antecedents were not found good. 12. In Union of India & Ors. v. Bipad Bhanjan Gayen (2008) 11 SCC 314, the facts indicate that the respondent was selected for training as a Constable in Railway Protection Force, and pending verification of Form 12, he was sent for training. It was found on verification that he had been involved in FIR 20/1993 for an offence punishable under section 376 IPC and another case under section 417 Page 26 27 was pending in the court. On 10.7.1995 his services were terminated with immediate effect because of his involvement in the police case and suppression of factual information in the attestation form by the candidate. It was an admitted fact

employee was under probation at the time of termination of his service. This Court has held thus : “8. We have heard the learned counsel for the parties and gone through the record. Rule 57 of the Rules provides for a probation period of 2 years from the date of appointment subject to extension. Rule 67 provides that a direct recruit selected for appointment as an enrolled member of the Force is liable to be discharged at any stage if the Chief Security Officer, for reasons to be recorded in writing, deems it fit to do so in the interest of the Force till such time as the recruit is not formally appointed to the Force. A reading of these two rules would reveal that till a recruit is formally enrolled to the Force his appointment is extremely tenuous. 9. It is the admitted case that the respondent was still under probation at the time his services had been terminated. It is also apparent from the record that the respondent had been given appointment on probation subject to verification of the facts given in the attestation form. To our mind, therefore, if an enquiry revealed that the facts given were wrong, the appellant was at liberty to dispense with the services of the respondent as the question of any stigma and penal consequences at this stage would not arise. 10. It bears repetition that what has led to the termination of service of the respondent is not his involvement in the two cases which were then pending, and in which he had been discharged subsequently, but the fact that he had withheld relevant information while filling in the attestation form. We are further of the opinion that an employment as a police officer pre-supposes a higher level of integrity as such a person is JUDGMENT Page 27 28 expected to uphold the law, and on the contrary, such a service born in deceit and subterfuge cannot be tolerated.” The fact remains that this Court in Bipad Bhanjan Gayen (supra), the case in

suppression was material as that would have clear impact on the antecedents and suitability of an incumbent for being appointed in the service. Thus the suppression was material and was such that the employer could have safely taken the view to terminate the services. Such an incumbent cannot be said to have any equity to seek employment till he is given a clean chit by the courts of law and his antecedents are otherwise found to be good besides the acquittal. 13. In A.P. Public Service Commission v. Koneti Venkateswarulu & Ors. (2005) 7 SCC 177 there was suppression of the information regarding the employment JUDGMENT and the explanation offered that he inadvertently filled the form was not accepted. 14. In Kamal Nayan Mishra v. State of Madhya Pradesh & Ors . (2010) 2 SCC 169, this Court has considered the question of dismissal of a confirmed employee without any inquiry or opportunity to show cause on the basis that he had furnished incorrect/false information in his personal attestation form. This Court held that such misdemeanor would be treated as a misconduct and punishment can be imposed only after subjecting the employee to appropriate disciplinary proceedings Page 28 29 as per the relevant service rules. Besides, the attestation was required to be furnished after 14 years of the service, and even after detection of the suppression, the authorities waited for 7 long years which indicated that the Department

Thus the belated decision which was taken to terminate his service sans enquiry was adjudged to be illegal and violative of protection conferred under Article 311(2) of the Constitution. This Court in Kamal Nayan Mishra (supra) has held that the decision in Ram Ratan (supra) was with respect to a probationer. It was not laid down in the said decision that services of a confirmed employee holding a civil post under the State, could be terminated for furnishing false information in the attestation form, without giving him an opportunity to meet the charges against him, as such the termination was void. This Court held thus : “ 9. On the contentions urged, two questions arise for consideration: ( i ) Whether the ratio decidendi of the decision in Ram Ratan Yadav (2003) 3 SCC 437 apply to this case? Does it hold that the State Government could dismiss or remove the holder of a civil post, without any enquiry or opportunity to show cause, once it is found that he has given incorrect/false information in the personal attestation form? ( ii ) Whether the termination of the appellant is valid?” JUDGMENT x x x x x “18. There are also several other features in this case which distinguish it from Ram Ratan Yadav (2003) 3 SCC 437. First is that Ram Ratan Yadav (supra) related to an employee of Page 29 30

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x x x x x 23. We also find from an examination of the terms of the attestation form that termination without notice or inquiry was contemplated only in the context of furnishing false information in and around the time of the appointment. Note (1) of the preamble warns that: “the furnishing of false information or suppression of any factual information in the attestation form would be a disqualification and is likely to render the candidate unfit for employment”. Similarly, the certificate at the end of the attestation form states that: “I am not aware of any circumstances which might impair my fitness for employment under the Government. I agree that if the above information is found false or incomplete in any material respect, the appointing authority will have a right to terminate my services without giving notice or showing cause.” Be that as it may. JUDGMENT x x x x x 25. We have already pointed out that there are clear indications that the appellant was bona fide under the impression that he was required to give the particulars sought in Column 12 of the Page 31 32

In Kamal Nayan Mishra (supra), this Court has considered various aspects while holding termination order for Kamal Nayan Mishra on the ground of suppression of information was bad in law. The employer has to take into consideration various aspects and a blanket order of termination of services cannot be passed on the basis of mere enabling clause in the verification form to do so. 15. In Daya Shankar Yadav v. Union of India & Ors. (2010) 14 SCC 103 on consideration of various aspects as to ambiguities in the verification form, this JUDGMENT Court observed that the purpose of seeking the information is to ascertain the character and antecedents of the candidate so as to assess the suitability for the post. Therefore the candidate will have to answer the questions truthfully and fully and any misrepresentation or suppression or false statement therein, by itself would demonstrate a conduct or character unbefitting for a uniformed police force. This Court has observed various consequences which may arise due to character and antecedents verification thus : Page 32 33

15. When an employee or a prospective employee declares in a verification form, answers to the queries relating to character and antecedents, the verification thereof can therefore 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 was 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. ( b ) On the other hand, if the employer finds that the criminal case disclosed by the declarant related to offences which were technical, or of a nature that would not affect the declarant’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 JUDGMENT Page 33 34

JUDGMENT Page 34 35 16. This Court has also held that query in verification form has to be very clear, specific and unambiguous. This Court has observed thus :

However, on facts this Court held that the employee was not misled and made a false statement. As such CRPF was justified in dispensing with his services for not being truthful in giving material information. JUDGMENT 17. In State of West Bengal & Ors. v. SK. Nazrul Islam (2011) 10 SCC 184, there was concealment of fact regarding antecedents in the verification form. Though Nazrul Islam was selected and found medically fit, he concealed the fact that he was involved in a criminal case. A chargesheet was filed and he had been granted bail. The employer did not appoint him as a Constable. The High Court directed that the employer could not withhold the offer of appointment and they were Page 35 36 directed to issue appointment letter to the employee, subject to final decision in the pending criminal case. This Court held that due to pendency of the criminal case under sections 148/323/380/427/506 IPC, the High Court had committed an

suitable for appointment to the post. This Court has laid down thus : “5. We have heard the learned counsel for the parties and we fail to appreciate how when a criminal case under Sections 148/323/380/448/427/506 IPC, against the respondent was pending in the Court of the Additional Chief Judicial Magistrate, Uluberia, Howrah, any mandamus could have been issued by the High Court to the authorities to appoint the respondent as a constable. Surely, the authorities entrusted with the responsibility of appointing constables were under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of constable and so long as the candidate has not been acquitted in the criminal case of the charges under Sections 148/323/380/448/427/506 IPC, he cannot possibly be held to be suitable for appointment to the post of constable.” 18. In Commissioner of Police & Ors. v. Sandeep Kumar (2011) 4 SCC 644, this JUDGMENT Court considered a case where Sandeep Kumar’s candidature for the post of Constable was cancelled on the ground that he had concealed his involvement in the criminal case under section 325/34 IPC when he was about 20 years. In para 9, this Court took note of the character “Jean Valjean” in Victor Hugo’s novel ‘ Les Miserables ’ in which for committing a minor offence of stealing a loaf of bread for his hungry family, Jean Valjean was branded as a thief for whole life. This Court Page 36 37 also referred to the decision in Morris v. Crown Office (1970) 2 QB 114. Relevant portion is extracted hereunder :

JUDGMENT “I come now to Mr Watkin Powell’s third point. He says that the sentences were excessive. I do not think they were excessive, at the time they were given and in the circumstances then existing. Here was a deliberate interference with the course of justice in a case which was no concern of theirs. It was necessary for the Judge to show—and to show to all students everywhere—that this kind of thing cannot be tolerated. Let students demonstrate, if they please, for the causes in which they Page 37 38

JUDGMENT Page 38 39 it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter.” This Court has observed that suppression related to a case when the age of

approach should be to reform a person instead of branding him a criminal all his life. In Morris v. Crown Office (supra), the observations made were that young people are no ordinary criminals. There is no violence, dishonesty or vice in them. They were trying to preserve the Welsh language. Though they have done wrong but must we show mercy on them and they were permitted to go back to their studies, to their parents and continue the good course. 19. In Ram Kumar v. State of Utttar Pradesh & Ors . (2011) 14 SCC 709, appointment was denied to Ram Kumar due to failure to disclose in the verification JUDGMENT form about a criminal case under sections 324/323/504 IPC in which he was subsequently acquitted. This Court examined the sustainability of the order and laid down that in terms of the instructions in Government Order dated 28.4.1958 it was the duty of the appointing authority to satisfy himself whether the appellant was suitable for appointment to the post of a Constable, with reference to nature of suppression and nature of the criminal case. Instead thereof, the appointing authority mechanically held that his selection was irregular and illegal because the Page 39 40 appellant had furnished an affidavit stating the facts incorrectly at the time of recruitment. This Court also took note of the facts of the case that he was acquitted subsequently and since the sole witness had deposed that victim was injured when

sharp weapon. In view of the aforesaid it was held by this Court that the appointing authority could not have found appellant unsuitable to the post of Constable. Hence, the appeal was allowed and appointment of employee was directed. However, backwages were denied for the period he remained out of service. Relevant portion of the decision is extracted below : “9. We have carefully read the Government Order dated 28-4-1958 on the subject “ Verification of the character and antecedents of government servants before their first appointment ” and it is stated in the government order that the Governor has been pleased to lay down the following instructions in supersession of all the previous orders: “The rule regarding character of candidate for appointment under the State Government shall continue to be as follows: JUDGMENT The character of a candidate for direct appointment must be such as to render him suitable in all respects for employment in the service or post to which he is to be appointed. It would be the duty of the appointing authority to satisfy itself on this point.” 10. It will be clear from the aforesaid instructions issued by the Governor that the object of the verification of the character and antecedents of government servants before their first appointment is to ensure that the character of a government servant for a direct recruitment is such as to render him suitable in all respects for employment in the service or post to which he Page 40 41

JUDGMENT Page 41 42

20. When we take stock of aforesaid decisions of this Court in nutshell it emerges that in Ramashanker Raghuvanshi (supra), this Court has opined that activities in Jan Sangh and RSS could not be made a ground to deprive employment. In democratic set up ‘McCarthyism’ is not healthy. Some leniency to young people cannot be ruled out. In T. S. Vasudavan Nair (supra), a three Judges’ Co-ordinate Bench of this Court held that due to non-disclosure of conviction in a case of violation of Defence of India Rules by shouting slogans, the cancellation of appointment was illegal. In Dhaval Singh (supra), though pendency of case was suppressed when verification form was filed, however, the JUDGMENT information about it was furnished before cancellation of appointment order on the ground of suppression was passed. This Court set aside the order on the ground of non-consideration of effect of disclosure made before order of cancellation of appointment was passed. In Sandeep Kumar (supra), this Court in the backdrop fact of the case that offence suppressed was committed under section 325/34 IPC at the time when incumbent was 20 years of age. This Court held that young people to be dealt with leniency. They should not be deprived of appointment as Page 42 43 suppression did not relate to involvement in a serious case. In Ram Kumar (supra), this Court considered a case when pending criminal case under sections 324, 323, 504 IPC in which subsequently acquittal had been recorded, no overt act

instructions dated 28.4.1958 requiring authority to consider suitability as such was not complied with, denying back wages to incumbent, his appointment was ordered. In Regional Manager, Bank of Baroda (supra), this Court declined to interfere under Art.136 in view of subsequent acquittal in a case under section 307 IPC. The decision of Labour Court was not interfered with. Passage of time was taken into consideration. However, this Court clarified that decision will not be treated as precedent. In Kamal Nayan Mishra (supra), action was taken when employee was not on probation. He had been confirmed in service and was holding civil post, attestation was filled after 14 years of service and then after 7 JUDGMENT years of that, action was taken. It was held that confirmed employee could not have been removed in view of protection under Art.311(2) without enquiry. Removal was held to be void. In M. Bhaskaran (supra), it was held that when the employment was taken on bogus and forged casual labourer service card no estoppel was created against employer by appointment and such appointment was voidable. In Sushil Kumar (supra), on consideration of background facts of the pending case which was suppressed under sections 304, 324/34 and 324 IPC, it Page 43 44 was held not desirable to appoint incumbent notwithstanding his subsequent acquittal. In Ram Ratan Yadav (supra), this Court held that suppression of pending criminal case under sections 323, 341, 294, 506B/34 IPC on the date of filing

discretion exercised to terminate the services was upheld. In R. Radhakrishnan (supra) in which pendency of criminal case under section 294(b) IPC was suppressed relying on Sushil Kumar (supra), it was held that removal was legal. In Bipad Bhanjan Gayen (supra), there was suppression of two pending cases on the date of filing verification form under sections 376 IPC and 417 IPC relating to rape and cheating. It was observed that since antecedents were not good incumbent could not claim equity for appointment. In Daya Shankar Yadav (supra), this Court has laid down course of action to be taken in such cases, and that suppression by itself can be a ground to remove person from service or cancel JUDGMENT an appointment, notwithstanding acquittal in the criminal case. In SK Nazrul Islam (supra), due to suppression of pending case on the date of filing of form under sections 148, 323, 380, 427, 596 IPC incumbent was adjudged to be unsuitable for appointment. This Court has also opined that before a person is held guilty of suppression of a fact it has to be considered whether verification form is precise and is not vague, and what it required to disclose. In Daya Shankar (supra) it was held that Page 44 45 in case verification form is vague no fault can be found on the ground of suppression. However, facts which have come to knowledge it has to be determined by employer whether antecedents of incumbent are good for service, to

in B. Chinnam Naidu (supra) when column in verification form required to disclose detention or conviction, it did not require to disclose a pending criminal case or fact of arrest, removal on the ground of material suppression of pending case and arrest was set aside as that was not required to be disclosed. 21. The verification of antecedents is necessary to find out fitness of incumbent, in the process if a declarant is found to be of good moral character on due verification of antecedents, merely by suppression of involvement in trivial offence which was not pending on date of filling attestation form, whether he may be deprived of employment? There may be case of involving moral turpitude/serious JUDGMENT offence in which employee has been acquitted but due to technical reasons or giving benefit of doubt. There may be situation when person has been convicted of an offence before filling verification form or case is pending and information regarding it has been suppressed, whether employer should wait till outcome of pending criminal case to take a decision or in case when action has been initiated there is already conclusion of criminal case resulting in conviction/acquittal as the case may be. The situation may arise for consideration of various aspects in a case Page 45 46 where disclosure has been made truthfully of required information, then also authority is required to consider and verify fitness for appointment. Similarly in case of suppression also, if in the process of verification of information, certain

considering various aspects before holding incumbent as unfit. If on verification of antecedents a person is found fit at the same time authority has to consider effect of suppression of a fact that he was tried for trivial offence which does not render him unfit, what importance to be attached to such non-disclosure. Can there be single yardstick to deal with all kind of cases? 22. The employer is given ‘discretion’ to terminate or otherwise to condone the omission. Even otherwise, once employer has the power to take a decision when at the time of filling verification form declarant has already been convicted/acquitted, in such a case, it becomes obvious that all the facts and attending circumstances, JUDGMENT including impact of suppression or false information are taken into consideration while adjudging suitability of an incumbent for services in question. In case the employer come to the conclusion that suppression is immaterial and even if facts would have been disclosed would not have affected adversely fitness of an incumbent, for reasons to be recorded, it has power to condone the lapse. However, while doing so employer has to act prudently on due consideration of nature of post and duties to be rendered. For higher officials/higher posts, standard has to be Page 46 47 very high and even slightest false information or suppression may by itself render a person unsuitable for the post. However same standard cannot be applied to each and every post. In concluded criminal cases, it has to be seen what has been

appointment. An employer would be justified in not appointing or if appointed to terminate services of such incumbent on due consideration of various aspects. Even if disclosure has been made truthfully the employer has the right to consider fitness and while doing so effect of conviction and background facts of case, nature of offence etc. have to be considered. Even if acquittal has been made, employer may consider nature of offence, whether acquittal is honourable or giving benefit of doubt on technical reasons and decline to appoint a person who is unfit or dubious character. In case employer comes to conclusion that conviction or ground of acquittal in criminal case would not affect the fitness for employment JUDGMENT incumbent may be appointed or continued in service. 23. Coming to the question whether an employee on probation can be discharged/refused appointment though he has been acquitted of the charge/s, if his case was not pending when form was filled, in such matters, employer is bound to consider grounds of acquittal and various other aspects, overall conduct of employee including the accusations which have been levelled. If on verification, the antecedents are otherwise also not found good, and in number of cases Page 47 48 incumbent is involved then notwithstanding acquittals in a case/cases, it would be open to the employer to form opinion as to fitness on the basis of material on record. In case offence is petty in nature committed at young age, such as stealing a

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. 24. No doubt about it that once verification form requires certain information to be furnished, declarant is duty bound to furnish it correctly and any suppression of material facts or submitting false information, may by itself lead to termination of his services or cancellation of candidature in an appropriate case. However, in a criminal case incumbent has not been acquitted and case is pending trial, employer JUDGMENT may well be justified in not appointing such an incumbent or in terminating the services as conviction ultimately may render him unsuitable for job and employer is not supposed to wait till outcome of criminal case. In such a case non disclosure or submitting false information would assume significance and that by itself may be ground for employer to cancel candidature or to terminate services. 25. The fraud and misrepresentation vitiates a transaction and in case employment has been obtained on the basis of forged documents, as observed in Page 48 49 M. Bhaskaran ’s case (supra), it has also been observed in the reference order that if an appointment was procured fraudulently, the incumbent may be terminated without holding any inquiry, however we add a rider that in case employee is

has to be held before terminating the services. The case of obtaining appointment on the basis of forged documents has the effect on very eligibility of incumbent for the job in question, however, verification of antecedents is different aspect as to his fitness otherwise for the post in question. The fraudulently obtained appointment orders are voidable at the option of employer, however, question has to be determined in the light of the discussion made in this order on impact of suppression or submission of false information. 26. No doubt about it that verification of character and antecedents is one of the important criteria to assess suitability and it is open to employer to adjudge JUDGMENT antecedents of the incumbent, but ultimate action should be based upon objective criteria on due consideration of all relevant aspects. 27. Suppression of ‘material’ information presupposes that what is suppressed that ‘matters’ not every technical or trivial matter. The employer has to act on due consideration of rules/instructions if any in exercise of powers in order to cancel candidature or for terminating the services of employee. Though a person who has suppressed the material information cannot claim unfettered right for appointment Page 49 50 or continuity in service but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity having due regard to facts of cases.

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 JUDGMENT cancelling candidature or discharging an employee from service. 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 Page 50 51 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

orders/instructions/rules, applicable to the employee, at the time of taking the decision. (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 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 JUDGMENT 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. Page 51 52 (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

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. JUDGMENT (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 Page 52 53 authority would take decision after considering the seriousness of the crime. (9) In case the employee is confirmed in service, holding Departmental

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 JUDGMENT 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. Page 53 54 We answer the reference accordingly. Let the matters be placed before an appropriate Bench for consideration on merits. ………………………..J. (Ranjan Gogoi) ………………………J. (Arun Mishra) New Delhi; ………………………J. July 21, 2016. (Prafulla C. Pant) JUDGMENT Page 54