B.K. Shrivastava, Member J
1. This OA has been filed on 26.10.2021 for the following reliefs:-
“i. To issue and order or direction to the respondents to consider the claim of the applicant for sending him in the training for the post of Assistant Loco Pilot (ALP), North Central Railway to Diesel Training Centre, Jhansi, pursuant to his final selection on the post of Assistant Loco Pilot (ALP), North Central Railway issued vide advertisement No.CEN01/2018 published in Central Employment News (CEN).
ii. To issue an order or direction to the respondents to appoint the applicant on the post of Assistant Loco Pilot (ALP), North Central Railway, after successful completion of the training as prescribed for the post of Assistant Loco Pilot (ALP), North Central Railway.
iii. Issue an order or direction in the appropriate nature which this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the case.
iv. Award the cost of the original application to the applicant.”
2. As per the applicant, the respondents issued an Advertisement No.CEN01/2018 Published in Central Employment News whereby the Post of “Assistant Loco Pilot (ALP)” and Technicians were advertised. The applicant applied for the aforesaid post and appears in the first stage of the recruitment i.e. “Computer Based Test” held on 20.08.2018 at Kanpur. After qualifying, he was also appeared in the “main examination” held on 23.01.2019 and was declared qualified. After the aforesaid both stages of recruitment the applicant was called for “Computer Based Aptitude Test” known as “Psycho Exam” which was held on 10.05.2019 at Greater Noida and after the examination the applicant was declared as successful. Thereafter, the respondents proceeded to declare the final provisional panel for the various categories of Assistant Loco Pilot (ALP) and Technicians in which the roll number of applicant was also finds place for the post of “Assistant Loco Pilot (ALP)” vide Annexure No.A-3.
3. It is again submitted by the applicant that he further called for documents verification held on 25.08.2020. His documents duly verified and found to be genuine and upto mark, thereafter, the applicant was also required to submit the attestation form giving his personal details including the pendency of criminal case, if any. The applicant disclosed the fact that a criminal case based upon FIR No. 13/2019 is pending against him under Section 498 A, 323, 504 and 506 of IPC along with Section 3/4 of Dowry Prohibition Act, 1961. In the aforesaid case, the charge sheet dated 01.11.2019 submitted by the Police in the Court of ACJM 17, Prayagraj.
4. It is further submitted that the Assistant Personnel Officer, North Central Railway (NCR), Prayagraj issued a notice on 05.10.2020 along with the list of trainees in which the name of applicant was included at serial No.17 having Roll No. as 441017082130187 of the second batch. The applicant approached the Diesel Training Centre, Jhansi where he was supposed to undergo a training for the post of Assistant Loco Pilot, but the applicant was not allowed to submit his joining for the training due to pendency of criminal case. Therefore, the applicant filed this OA for the relief mentioned in Para No.1 of this order.
5. On the other side, the respondent opposes the OA. It is submitted that the charge sheet has been filed against the applicant. Because the criminal case is pending against the applicant, therefore, he is not entitled to join or perform the Government Service.
6. It is submitted by the applicant’s counsel that till date the applicant has not been found guilty in the aforesaid offence. The applicant has not been convicted. The issue involved in the present case has already been settled by the Hon'ble Supreme Court in the case of Autar Singh Vs. Union of India & Ors [2016(4) ESC 580 (SC)]. On the other side, the respondents mentioned in Para 23 of the counter affidavit that the aforesaid Judgment of Autar Singh case has been overruled by the Hon’ble Apex Court in Judgment dated 17.09.2021 passed in Civil appeal No.5743-5744 of 2021 title “Rajasthan Rajya Vidyut Prasaran Nigam Limited and others Vs. Anil Kanwariya”.
7. It appears that at the time of preparation of counter affidavit respondent did not peruse the both Judgments sincerely. The case of Autar Singh was decided by 03 Judges Bench of the Hon’ble Supreme Court while the Judgment dated 17.09.2021 has been passed by 02 Judges Bench of Hon’ble Supreme Court. In the entire Judgments, it is not found that the Court overruled the aforesaid Judgment of Autar Singh case. In fact, the 02 Bench Judges was not empowered to overruled the Judgment passed by the 03 Judges Bench. The counsel misinterpreted the aforesaid Judgment of Anil Kanwariya case. In the entire Judgment, it is not found that any decision has been given against the law laid down in the case of Autar Singh.
8. In the case of Autar Singh (Supra) the Hon’ble Supreme Court noticing the previous decisions rendered on the subject of fair disclosure and a right of appointment and thereafter, some guidelines were established for the purpose of the cases. The guidelines contained in Para Nos.30(5) and 30(6) are relevant to this case, which are as under:-
“30(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.”
30(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.”
9. It is not disputed in this case that the applicant qualified in all examinations conducted by the respondents and was selected for the post of “Assistant Loco Pilot”. He was not allowed to participate in the training for the aforesaid post because of pendency of a criminal case. It is also not disputed that the applicant himself declared the all facts about the pendency of aforesaid criminal case.
10. As per documents FIR No.13/2019 was registered at Police Station Mahila Thana, Prayagraj on 10.01.2019, upon the basis of the complaint made by Smt. Puja Singh [D/o Shri Rana Pratap Singh and W/o Shri Prakash Singh]. The Prakash Singh is the Husband of complainant and real elder brother of the present applicant. After investigation, the Police filed the Challan No.206/2019 on 01.11.2019 before the Competent Court under “Section 498-A, 323, 504 and 506 of IPC alongwith Section 3/4 of Dowry Prohibition Act,” 1961. It is also submitted during the argument that the case is pending before the Competent Court at the stage of recording the evidence of prosecution witnesses.
11. It will be relevant to mention the main content of FIR. Smt. Puja Singh submitted a typed application before the Police upon which the FIR was registered. In Para No.12 of the FIR the facts are mentioned as under:-
12. In the case of Pramod Singh Kirar Vs. State of M.P. & Ors., {(2023) 1 SCC 423 = 2023 [1] ESC 123 (SC) (02.02.2022)} the selection was for the post of Constable. The applicant himself declared in the attestation form that he was tried for the offence under Section 498A of IPC earlier. Therefore, the Court found that the aforesaid case was decided on 30.10.2006 and the applicant was acquitted upon the basis of compromise which was executed out of the Court. In the aforesaid circumstances, the Hon’ble Supreme Court said that appellant could not have been denied the appointment solely on the ground that he was tried for the offence under Section 498A of IPC and that two for the offence alleged to have happened in the year, 2001 for which he was even acquitted in the year, 2006 may be on settlement between husband and wife.
13. In the case of Imtiyaz Ahmad Malla Vs. State of Jammu and Kashmir, AIR 2023 SC 1308, the selection was also related to the post of Constable. The applicant concealed the information that a FIR No. 52/2007 under Section 379 of Ranbir Penal Code (RPC) and Section 6 of Forest Act was registered against the applicant. On the basis of contradictory evidence, the trial Court gives the benefit of doubt and the accused applicant was acquitted. In the aforesaid case, the Court considered the word “honourable acquittal” by the help of previous cases decided by the Hon’ble Supreme Court. The Court referred the Pradeep Kumar’s case and said that in the aforesaid case it was reiterated that if a person is acquitted or discharged, it cannot obviously be inferred that he was falsely involved, or he had no criminal antecedents. The Court also referred to the Para-13 of the Pradeep Kumar’s case in which it is mentioned that it is well settled that acquittal in a criminal case does not automatically entitle the applicant for appointment to the post. Still, it is open to the employer to consider the antecedents and examine whether he is suitable for appointment to the post? After taking into consideration, the various case law the Court held in Para-14 that:-
“In all the above cases, the requirement of integrity and high standard of conduct in police force has been highly emphasized. The High Court in the impugned judgment has also elaborately dealt with each and every aspect of the issues involved, while upholding the order of the Single Bench to the effect that the Director General being the highest functionary in the police hierarchy, was the best judge to consider the suitability of the petitioner for induction into the police force. The impugned order being just and proper, we are not inclined to interfere with the same in exercise of our jurisdiction under Article 136 of the Constitution of India.”
14. In the case of Pawan Kumar Vs. Union of India 2022 (3) All India Service Law Journal 26 (2.5.2022), the advertisement was published for the post of Railway Police Special Force (RPSF) on 27.02.2011 and the examination was held on 23rd June, 2013 and 12th June, 2014. The applicant was selected. During training, he was discharged from service on 24th April, 2015 upon the basis that a criminal case was registered against him on 04th April, 2011 under Sections 148/149/323/506 and 356 of IPC. It is found that when the applicant submitted the application for employment at that time no any case was registered against him but at the time of submission the attestation form the case was already been registered but the applicant concealed the aforesaid information. In the aforesaid situation, the Court took the note of entire circumstances and it was found that the complainant himself submitted an affidavit on 19.04.2011 that no such alleged incident on 04th 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 the case of the prosecution, therefore, the applicant was acquitted by the trial Court by Judgment dated 12th August, 2011. In Para-11, the Hon’ble Supreme Court observes as under:-
“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.”
15. The Court also took a note that mere suppression of the fact is not sufficient, the appropriate authority should apply his mind regarding the suitability of the applicant in reference to the post applied. In Para-13, the Court observes as under:-
“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 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.”
16. Again in Para-18, the Court found that the denial is not proper and the discharge order issued by the Competent Authority is not sustainable. The Court said in Para-18 is as under:-
“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.”
17. In the case of Avtar Singh Vs. Union of India and Others, AIR 2016 Supreme Court 3598 (Supra), the three Judges Bench of Supreme Court considered the suppression of information or submitting false information in the verification form about criminal prosecution/arrest/pendency of criminal cases and the discretion of the employer to condone lapse or to terminate. The Court said in Para 22 as under:-
“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, 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 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 suppressed is material fact and would have rendered an incumbent unfit for appointment. An employer would be justified is 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 incumbent may be appointed or continued in service.”
18. Therefore, it appears that in case of any information suppressed by the applicant in that case also the employer having right to condone the aforesaid lapse and to consider the nature of case and the job offered to the applicant. If it is found that the aforesaid case is not adversely affected the integrity of the applicant and the applicant is not unsuitable for the aforesaid job then the employer can condone the aforesaid lapse.
19. In the present case, the applicant did not conceal any information. The applicant himself disclosed the case pending against him. Therefore, the employer was liable or duty bound to consider the nature of the case in reference to the post for which the applicant was the selected. But in this case, the employer did not exercise the aforesaid jurisdiction. Only they stopped the applicant in participating the training. The applicant was qualified in all stages of selection. Therefore, looking to the nature of the case, and the contents mentioned in the FIR and the role of the applicant in the aforesaid crime should also be considered by the employer for deciding the suitability of the applicant. Hence, the action of the respondent is not proper because they did not passed any written order about the suitability of the applicant. Therefore, in view of this Court the suitability of the applicant should be decided by the Competent Authority by passing a reasoned and speaking order looking to the nature and the other circumstances of the case, the suitability of the applicant should be decided.
20. Accordingly, the OA is allowed and the Competent Authority amongst the respondents is directed to consider the question of suitability of the applicant for the post of Assistant Loco Pilot, after taking into consideration, the content of F.I.R. and the role of the applicant in the aforesaid offence, nature of the post, nature of duties etc. Thereafter, the Competent Authority will pass a reasoned and speaking order about the suitability of the applicant for the aforesaid post. This exercise should be completed within 04 months from the date of receiving the certified copy of this order. If it is found that the applicant is suitable for the aforesaid post then the competent authority will include his name in the next training session. No costs.
