PAWAN KUMAR versus UNION OF INDIA & ANR.
[2022] 7 S.C.R. 928, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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PAWAN KUMAR
v.
UNION OF INDIA & ANR.
(Civil Appeal No(s). 3574 of 2022)
MAY 02, 2022
[AJAY RASTOGI AND SANJIV KHANNA, JJ.]
Service Law: Railway Protection Forces Rules, 1987: rr. 52
and 67.2 – Discharge order – Sustainability of – On facts, appellant-
recruit selected for the post of constable in Railway Protection
Forces – However, while undergoing training, discharged from
service on the ground of submission of false declaration/suppression
of relevant information in the verification form as regard his criminal
antecedents – Said discharge order upheld by the High Court – On
appeal: Held: Mere suppression of material/false information
regardless of the fact whether there is a conviction or acquittal has
been recorded in a given case does not mean that the employer can
arbitrarily discharge/terminate the employee from service –
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 – Person who has suppressed the
material information or has made false declaration indeed has no
unfettered right of seeking appointment or continuity in service,
however, the competent authority has to exercise the power
judiciously – 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
–On facts, no FIR was registered on the date of filling the application
form – False criminal case of trivial nature was registered later
under misconception and the recruit was later acquitted – At the
time of filling up the attestation form, the recruit was required to
disclose whether he was ever arrested or prosecuted to which he
mentioned ‘No’ – It is true that a candidate is required to furnish
correct information before and after induction into service –
However, the competent authority is required to use their powers
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judiciously and in a reasonable manner – 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 to become a member of the force – Thus, the
judgment of the High Court is unsustainable and set aside.
Avtar Singh v. Union of India and others (2016) 8 SCC
471 : [2016] 7 SCR 445- relied on.
Rajasthan Rajya Vidyut Prasaran Nigam Limited and
another v. Anil Kanwariya (2021) 10 SCC 136 –
referred to.
Case Law Reference
[2016] 7 SCR 445
relied on
Para 18
(2021) 10 SCC 136
referred to
Para 16
CIVIL APPELLATE JURISDICTION : Civil Appeal No.3574
of 2022.
From the Judgment and Order dated 17.11.2015 of the High Court
of Delhi at New Delhi in Writ Petition (Civil) No.7872 of 2015.
Rajiv Kataria, Ms. Debyani Das P., M/s Delhi Law Chambers,
Advs. for the Appellant.
K. M. Nataraj, Vatsal Joshi, Mohammed Akhil, Praneet Pranav,
Abhishek Raj, Shailesh Madiyal, Amrish Kumar, Advs. for the
Respondents.
The Judgment of the Court was delivered by
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 17th
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 referred to as “the RPF Rules
1987”).
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
PAWAN KUMAR v. UNION OF INDIA & ANR.
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(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 24th
April, 2015 invoking clause 9(f) of the employment notice no.1/2011
dated 27th 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 4th April, 2011 and after
charge-sheet came to be filed on 13th April, 2011, charge was framed on
7th July, 2011. As it was a false case registered against him, the appellant
was honourably acquitted by the competent Court of jurisdiction by the
judgment dated 12th August, 2011 and this fact, according to the
respondent, was not disclosed by him when he filled the attestation form
on 27th 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 27th 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.”
7. Indisputedly, on the date when the application form was filled
by the appellant pursuant to employment notice no.1/2011, no such
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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 4th 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 4th 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 12th 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
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 VIVA-VOCE 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.
……………………….
PAWAN KUMAR v. UNION OF INDIA & ANR.
[AJAY RASTOGI, J.]
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12 (a) Have you ever been arrested?
Yes/No _/
(b) Have you ever been prosecuted?
Yes/No _/
……………………….”
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 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,
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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.
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 17th 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 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.
1 (2016) 8 SCC 471
PAWAN KUMAR v. UNION OF INDIA & ANR.
[AJAY RASTOGI, J.]
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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:
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
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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 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.
PAWAN KUMAR v. UNION OF INDIA & ANR.
[AJAY RASTOGI, J.]
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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 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 23rd December, 2021 confirming its earlier
decision of discharge dated 24th
April, 2015. The bare perusal of the
review order dated 23rd 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 relevant to note that the
employment notice is of 27th February, 2011 and the alleged criminal
case was instituted on 4th 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.
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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 passing the order of termination which
was impugned in the proceedings. We have already quoted paragraph
38 of the judgment by a three-Judge 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 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
2 (2021) 10 SCC 136
PAWAN KUMAR v. UNION OF INDIA & ANR.
[AJAY RASTOGI, J.]
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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 17th November,
2015 and the order of discharge dated 24th April, 2015 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.
Nidhi Jain
Appeal allowed.
(Assisted by : Shashwat Jain, LCRA)