Pawan Kumar vs Union Of India on 2 May, 2022


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Supreme Court of India

Pawan Kumar vs Union Of India on 2 May, 2022

Author: Ajay Rastogi

Bench: Ajay Rastogi, C.T. Ravikumar

                                                                             REPORTABLE
                                     IN THE SUPREME COURT OF INDIA
                                      CIVIL APPELLATE JURISDICTION
                                 CIVIL APPEAL NO(s).       3574          OF 2022
                         (Arising out of Special Leave Petition (Civil) No.6009 of 2016)


          PAWAN KUMAR                                                APPELLANT(S)

                          VERSUS

          UNION OF INDIA & ANR.                                      RESPONDENT(S)


                                                  JUDGMENT

Rastogi, J.

1. Leave granted.

2. The instant appeal is directed against the judgment and order

passed by the Division Bench of the High Court of Delhi dated 17 th

November, 2015, whereby the High Court upheld the order of

discharge dated 24th April, 2015, taking recourse to clause 9(f) of the

employment notice no.1/2011 dated 27th February, 2011 read with

Rule 67.2 of Railway Protection Force Rules, 1987 (hereinafter
Signature Not Verified

Digitally signed by
POOJA SHARMA
Date: 2022.05.02

referred to as “the RPF Rules 1987”).

19:05:10 IST
Reason:

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3. The brief facts of the case culled out from the record are that

the employment notice for appointment to the post of Constable in

the Railway Protection Force (RPF), including Railway Police Special

Force (RPSF) came to be published on 27th February, 2011. The

appellant being eligible submitted application form and participated

in the selection process and after qualifying the written examination

held on 23rd June, 2013 followed with physical efficiency test held on

12th June, 2014 and after his final selection was sent for training.

While the appellant was undergoing training, he came to be

discharged by an order dated 24 th April, 2015 invoking clause 9(f) of

the employment notice no.1/2011 dated 27 th February, 2011 and

Rule 67.2 of the RPF Rules 1987.

4. That became the subject matter of challenge at the instance of

the appellant by filing a writ petition before the High Court of Delhi.

It came on record that at one stage FIR no.75 under Sections

148/149/323/506/356 IPC was registered against him on 4 th April,

2011 and after charge­sheet came to be filed on 13 th April, 2011,

charge was framed on 7th July, 2011. As it was a false case

registered against him, the appellant was honourably acquitted by

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the competent Court of jurisdiction by the judgment dated 12 th

August, 2011 and this fact, according to the respondent, was not

disclosed by him when he filled the attestation form on 27 th May,

2014 that he was prosecuted at one stage and this being a case of

suppression of information/false declaration in the verification form,

the High Court dismissed the writ petition under judgment

impugned dated 17th November, 2015 and that became the subject

matter of challenge in appeal before this Court.

5. We have heard learned counsel for the parties and with their

assistance perused the material available on record.

6. The process of selection was initiated by the respondents

pursuant to the employment notice no.1/2011 dated 27 th February,

2011 for filling up the post of Constable in RPF/RPSF. Clause 9(f) of

the RPF Rules 1987, which is relevant for the present purpose is

reproduced hereunder:

“9(f) Candidates found to be having adverse report on their
antecedents and character may not be appointed in RPF including
RPSF. False declaration is an offence under the law and will lead to
disqualification of the applicant, institution of criminal case and also
dismissal from service, if appointed. Hence, applicants are advised to
be careful while filling in the application.”

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7. Indisputedly, on the date when the application form was filled

by the appellant pursuant to employment notice no.1/2011, no such

criminal case was either instituted or pending against him and what

was disclosed by him at the time of filling his application form

pursuant to employment notice no.1/2011, there was no

suppression of relevant information or submission of false

declaration at that stage. It was unfortunate that a false criminal

case of trivial nature came to be registered against him on 4 th April,

2011 and since it has no legs to stand as much before the charge­

sheet could be filed, the de facto complainant submitted his affidavit

on 19th April, 2011 that no such alleged incident on 4 th April, 2011

had taken place and the bag was found beneath the driver seat itself

and under misconception, a complaint was lodged by him. The

prosecution witness has not supported case of the prosecution

during the course of trial and for that reason the appellant was

honourably acquitted by the trial Court by judgment dated 12 th

August, 2011.

8. Unfortunately, when the appellant filled the attestation form at

a later stage on 27th May, 2014, certain formation were desired to be

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disclosed by him and in clause 12(a) and 12(b) of the verification

form, according to the respondent, as the appellant mentioned “No”,

when he was asked to disclose as to whether he has ever been

arrested or has been prosecuted, in answer to clauses 12(a) and (b),

which was considered to be a suppression of relevant

information/submission of false declaration in the verification form

as regards to his criminal antecedents. Proceeding on the said

premise, the order of discharge came to be passed on 24th April,

2015. It will be relevant to quote the extract of the information

relevant for the purpose :

“Attestation Form

NOTE : THIS ATTESTATION FORM WILL BE UTILISED ONLY
UPON FINAL CONSIDERATION AND ACCEPTANCE OF
THE CANDIDATURE AFTER VIVA­VOCE AS SELECTED
CANDIDATE SUBJECT TO FULFILMENT OF OTHER
PRE CONDITIONS.

WARNING: 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 UNDER THE
GOVT.

……………………….

     12 (a)     Have you ever been arrested?         Yes/No _/

         (b)    Have you ever been prosecuted?       Yes/No _/

     ……………………….”
                                                                         5

9. Under the Railway Protection Force Rules, 1987, at the time of

entry into service a verification of character and antecedents of the

incumbent has to take place according to the procedure prescribed

by the Central Government from time to time. Rule 52 of the Rules

1987 is reproduced herein below:

“Rule 52/VERIFICATION :

52.1 As soon as a recruit is selected but before he is formally
appointed to the Force, his character and antecedents shall be got
verified in accordance with the procedure prescribed by the Central
Government from time to time.

52.2 Where after verification, a recruit is not found suitable for
the Force, he shall not be appointed as a member of the Force.”

10. It may be noticed that while a recruit is selected and before he

is formally appointed, his character/antecedents have to be verified

and after due verification if the recruit is found suitable for the post,

may be considered for appointment as a member of the force. What

is required that after the verification of character/antecedents of the

recruit has taken place, it presupposes and casts an obligation on

the appointing/competent authority to take into consideration as to

whether the kind of suppression of alleged information/false

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declaration holds him suitable for appointment to the force, in terms

of Rule 52 of the Rules 1987.

11. This cannot be disputed that the candidate who intends to

participate in the selection process is always required to furnish

correct information relating to his character and antecedents in the

verification/attestation form before and after induction into service.

It is also equally true that the person who has suppressed the

material information or has made false declaration indeed has no

unfettered right of seeking appointment or continuity in service, but

at least has a right not to be dealt with arbitrarily and power has to

be judiciously exercised by the competent authority in a reasonable

manner with objectivity having due regard to the facts of the case on

hand. It goes without saying that the yardstick/standard which has

to be applied with regard to adjudging suitability of the incumbent

always depends upon the nature of post, nature of duties, effect of

suppression over suitability to be considered by the authority on due

diligence of various aspects but no hard and fast rule of thumb can

be laid down in this regard.

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12. Earlier, there has been a conflict of opinion in the various

decisions of Division Benches of this Court and at the stage when

the Division Bench of the High Court dismissed the writ petition

under the impugned order dated 17 th November, 2015, there were

divergent views of this Court and that came to be later settled by a

three Judge Bench of this Court in Avtar Singh v. Union of India

and others.1. While summarizing the conclusion, this Court has

laid down broad guidelines which has to be taken note of by the

appointing/competent authority in dealing with the matters where

there is a suppression of material information or disclosure of false

information and after reconciling the earlier judgments succinctly

summarized the conclusions as under:

“34. 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 antecedents of the incumbent, but
ultimate action should be based upon objective criteria on due
consideration of all relevant aspects.

35. 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 or continuity in service but he has a right not to be

1 (2016) 8 SCC 471

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dealt with arbitrarily and exercise of power has to be in reasonable
manner with objectivity having due regard to facts of cases.

36. What yardstick is to be applied has to depend upon the nature
of post, higher 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 authorities concerned considering
post/nature of duties/services and power has to be exercised on
due consideration of various aspects.

37. 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 cancelling
candidature or discharging an employee from service.

38. We have noticed various decisions and tried to explain and
reconcile them as far as possible. In view of the aforesaid
discussion, we summarise 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 before or after entering into service must be true and there
should be no suppression or false mention of required information.

38.2. While passing order of termination of services or cancellation
of candidature for giving false information, the employer may take
notice of special circumstances of the case, if any, while giving such
information.

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

38.4. In case there is suppression or false information of
involvement in a criminal case where conviction or acquittal had
already been recorded before filling of the application/verification
form and such fact later comes to knowledge of employer, any of the
following recourses appropriate to the case may be adopted:

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38.4.1. In a case trivial in nature in which conviction had been
recorded, such as shouting slogans at young age or for a petty
offence which if disclosed would not have rendered an incumbent
unfit for post in question, the employer may, in its discretion,
ignore such suppression of fact or false information by condoning
the lapse.

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

38.4.3. If acquittal had already been recorded in a case involving
moral turpitude or offence of heinous/serious nature, on technical
ground and it is not a case of clean acquittal, or benefit of
reasonable doubt has been given, the employer may consider all
relevant facts available as to antecedents, and may take appropriate
decision as to the continuance of the employee.

38.5. In a case where the employee has made declaration truthfully
of a concluded criminal case, the employer still has the right to
consider antecedents, and cannot be compelled to appoint the
candidate.

38.6. In case when fact has been truthfully declared in character
verification form regarding pendency of a criminal case of trivial
nature, employer, in facts and circumstances of the case, in its
discretion, may appoint the candidate subject to decision of such
case.

38.7. In a case of deliberate suppression of fact with respect to
multiple pending cases such false information by itself will assume
significance and an employer may pass appropriate order cancelling
candidature or terminating services as appointment of a person
against whom multiple criminal cases were pending may not be
proper.

38.8. If criminal case was pending but not known to the candidate
at the time of filling the form, still it may have adverse impact and
the appointing authority would take decision after considering the
seriousness of the crime.

38.9. In case the employee is confirmed in
service, holding departmental enquiry would be necessary before

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passing order of termination/removal or dismissal on the ground of
suppression or submitting false information in verification form.

38.10. For determining suppression or false information
attestation/verification form has to be specific, not vague. Only
such information which was required to be specifically mentioned
has to be disclosed. If information not asked for but is relevant
comes to knowledge of the employer the same can be considered in
an objective manner while addressing the question of fitness.
However, in such cases action cannot be taken on basis of
suppression or submitting false information as to a fact which was
not even asked for.

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

13. What emerges from the exposition as laid down by this Court is

that by mere suppression of material/false information regardless of

the fact whether there is a conviction or acquittal has been recorded,

the employee/recruit is not to be discharged/terminated

axiomatically from service just by a stroke of pen. At the same time,

the effect of suppression of material/false information involving in a

criminal case, if any, is left for the employer to consider all the

relevant facts and circumstances available as to antecedents and

keeping in view the objective criteria and the relevant service rules

into consideration, while taking appropriate decision regarding

continuance/suitability of the employee into service. What being

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noticed by this Court is that mere suppression of material/false

information in a given case does not mean that the employer can

arbitrarily discharge/terminate the employee from service.

14. At one stage after the matter being heard, detailed order was

passed by this Court on 21st October, 2021 and taking note of the

judgment of Avtar Singh (supra) directed the employer to review its

decision in the light of the decision of this Court. In compliance

thereof, the review order has been passed on 23 rd December, 2021

confirming its earlier decision of discharge dated 24 th April, 2015.

The bare perusal of the review order dated 23 rd December, 2021,

itself indicates that the authority has not applied its mind and just

after reproduction of facts, confirmed the order of discharge dated

24th April, 2015.

15. It may be further noticed that in para 5(c) of the order, a

reference has been made of the affidavit submitted by the appellant

at the time of filling his application form, but on the day when the

application form was filled, the information which he disclosed in

terms of clause 9(f) of employment notice indisputedly, no criminal

case on that date was either instituted or pending against him. It is

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relevant to note that the employment notice is of 27 th February, 2011

and the alleged criminal case was instituted on 4 th April, 2011. At

the same time, the authority has not even considered the scope and

ambit of Rule 52 of the Rules 1987 that after verification of the

character/antecedents of the incumbent, it will be an obligation

upon the authority to examine as to whether the incumbent/recruit

is suitable to become a member of the force and without

appreciation in a mechanical manner confirmed the order of

discharge dated 24th April, 2015.

16. The judgment relied upon by the respondent Rajasthan Rajya

Vidyut Prasaran Nigam Limited and another v. Anil

Kanwariya2 may not be of any assistance for the reason that it was

a case where the respondent employee before submitting application

pursuant to the advertisement inviting applications was convicted by

the competent Court of jurisdiction and this fact was not disclosed

by him while filling his application form and that was the reason

favoured upon the Court while upholding action of the authority in

2 (2021) 10 SCC 136

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passing the order of termination which was impugned in the

proceedings. We have already quoted paragraph 38 of the judgment

by a three­Judge Bench of this Court in Avtar Singh (supra) and in

the context of the factual background of the present case applied the

said principles. One distinguishing factor, as noticed above, is that

the criminal complaint/FIR in the present case was registered post

submission of the application form. We have also taken into

account the nature of the allegations made in the criminal case and

that the matter was of trivial nature not involving moral turpitude.

Further, the proceedings had ended in a clean acquittal. As is clear

from paragraph 38 in Avtar Singh (supra), all matters cannot be

put in a straitjacket and a degree of flexibility and discretion vests

with the authorities, must be exercised with care and caution taking

all the facts and circumstances into consideration, including the

nature and type of lapse.

17. Adverting to the facts of the instant case, at the time of

attestation form filled by the appellant, the criminal case was

already registered against him but it may be noticed that at the very

threshold, the complainant filed his affidavit that the complaint on

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which FIR came to be registered was due to misunderstanding and

he did not want to pursue his case any further, but still charge­

sheet came to be filed and on the first date of hearing, the alleged

victim PW.1 did not support case of the prosecution and thus the

order of clean acquittal came to be passed by the learned Judge of

competent jurisdiction by judgment dated 12th August, 2011.

18. The criminal case indeed was of trivial nature and the nature of

post and nature of duties to be discharged by the recruit has never

been looked into by the competent authority while examining the

overall suitability of the incumbent keeping in view Rule 52 of the

Rules 1987 to become a member of the force. Taking into

consideration the exposition expressed by this Court in Avtar Singh

(supra), in our considered view the order of discharge passed by the

competent authority dated 24th April, 2015 is not sustainable and in

sequel thereto the judgment passed by the Division Bench of High

Court of Delhi does not hold good and deserves to be set aside.

19. Consequently, the appeal succeeds and is allowed. The

judgment of the Division Bench of the High Court dated 17 th

November, 2015 and the order of discharge dated 24 th April, 2015

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and dated 23rd December, 2021 are hereby quashed and set aside.

The Respondents are directed to reinstate the appellant in service on

the post of Constable on which he was selected pursuant to his

participation in reference to employment notice no.1/2011 dated

27th February, 2011. We make it clear that the appellant will not be

entitled for the arrears of salary for the period during which he has

not served the force and at the same time he will be entitled for all

notional benefits, including pay, seniority and other consequential

benefits, etc. Necessary orders shall be passed within a period of

one month from today. No costs.

20. All pending application(s) shall stand disposed of.

…………………………….. J.

(Ajay Rastogi)

…………………………….. J.

(Sanjiv Khanna)
New Delhi.

May 02, 2022.

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