Commissioner of Police v. Kumari Sangeeta

13. In support of his arguments, learned counsel for the respondents has placed reliance upon the judgment dated 23.07.2024 passed by the Hon’ble Supreme Court in Civil Appeal No. 7933/2024 titled Union of India v Shishu Pal[5].

14. We have considered the submissions made by learned counsels for the parties.

15. From the aforesaid facts, it is evident that the applicant has been terminated from service vide the impugned order dated 07.07.2022 on the ground of her involvement in case FIR NO. 39/2016 and being held guilty of concealment of facts regarding Attestation Form and undertaking subsequent thereto. Thus, the issue arises as to whether in the aforesaid facts, the applicant can be held guilty of suppression of her involvement in criminal case.

16. The issue in hand is no more res integra in view of the law laid down by the Hon’ble Apex Court in Avtar Singh v UOI[6], para 38 of which reads as under:-

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 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.

38.11. Before a person is held guilty of suppressioveri or suggestiofalsi, knowledge of the fact must be attributable to him.”

17. In view of the aforesaid facts, we are of the considered view that the applicant cannot be held guilty of suppressing information regarding her involvement in the case FIR No. 39 of 2016 and in any other case FIR while filling up the Attestation Form and the Undertaking given before the respondents as referred hereinabove in light of the law laid down by the Hon’ble Apex Court in the case of Avtar Singh (supra), particularly in para

38.11.

18. So far as reliance of respondents on the judgment of the Hon’ble Apex Court in the case of Shishu Pal (supra) is concerned, we have gone through the same. In the said case it was found by the Hon’ble Apex Court that the respondents had not only failed to disclose that the applicant therein remained in judicial custody and on moving application, was released on bail by the Trial Court along with other co-accused. Thus, in the said case the applicant was fully aware of not only involvement of his name in the said case FIR, but he was also aware that he was arrested in the said case FIR, and therefore, the judgement of Hon’ble Apex Court in the case of Shishu Pal (supra) is of no help to the defense of the respondents.

19. In light of the aforesaid, the present OA deserves to be allowed and the same is accordingly allowed with following directions:-

(i) The impugned order dated 07.07.2022 is quashed and set aside.

(ii) The applicant shall be treated in continuous service from the date of her joining.

(iii) The applicant shall be entitled for all consequential benefits, i.e., continuity of service, seniority, arrears of pay, fixation of pay at par with other similarly placed persons.

(iv) The aforesaid directions shall be complied with by the respondents as expeditiously as possible and preferably within six weeks from the date of receipt of a copy of this Order.”

13. We have heard Mr. Haseeb, learned Counsel for the petitioners and Ms. Rhea Verma, learned Counsel for the respondent.

14. Mr. Haseeb places reliance on the judgment of the Supreme Court in Satish Chandra Yadav v UOI[7] and of a Division Bench of this Court in Anil Kumar v UOI[8].

15. Both the aforesaid judgments, in our considered opinion, are clearly distinguishable. In both these cases, the candidate concerned was aware of the institution of the FIR against him and, in full awareness of the said fact, had resorted to misstatement while applying for the post concerned.

16. In Anil Kumar, the candidate in response to a show cause notice issued to him, replied as under: “I hereby submit that the facts like FIR registered against me in P.S. Pilua, my jail term and my bail from the court regarding my character verification, I am neither aware of any such fact nor I have done any such act. Sir, I have never been arrested nor I have ever been granted bail from the court. Sir, I am unaware of any such FIR and incident. Therefore, at the time of recruitment, in enrolment form question no. 1 to 17, whatever informations I have furnished, are cent-percent true to my knowledge. Through these, it seems that either my neighbour or some other person has conspired to frame me. ”

17. The Division Bench of this Court notes that the aforesaid statement of the candidate was found to be false and untrue.

18. Mr. Haseeb has drawn our attention to para 10 of the judgment in Anil Kumar which, to the extent he relies thereon, reads thus:

true status thereof. Having not done so, the petitioner is grossly guilty of both withholding and for divulging wrong fact about the FIR on more than one occasion.” (Emphasis supplied)

19. The reliance is obviously misplaced. It goes without saying that one can be required to “truthfully apprise” the authorities only of a fact of which one has knowledge.

20. Insofar as Satish Chandra Yadav is concerned, the respondent Satish Chandra Yadav, in that case, had earlier approached this Court under Article 226 of the Constitution of India by way of WP(C) 1167/2018. While dismissing the said writ petition, this Court observed thus:

12. For the aforementioned reasons, the Court finds no reason to interfere with the impugned order of the DA which was confirmed by the AA.”

21. When the matter was carried to the Supreme Court, in the very opening paragraph of the Analysis, as contained in the judgment, the Supreme Court notes the undisputed facts, thus: “25. The following facts are not in dispute: 25.[1] The verification form was filled up by the appellant on 2-9-

2014. 25.[2] A first information report was registered against the appellant herein and others on 26-5-2008 for the offences punishable under Sections 147, 148, 323, 324, 504 and 506, respectively, of the IPC. 25.[3] Upon registration of the FIR on 26-5-2008, the appellant herein filed two applications in the Court of the Chief Judicial Magistrate, Sant Kabir Nagar, one application seeking to surrender himself before the Court in connection with the FIR referred to above and the second application seeking for regular bail. 25.[4] It appears that the appellant upon surrendering before the Chief Judicial Magistrate was taken in deemed judicial custody with effect from 6-6-2008 and was ordered to be released on bail on 10-6-2008. It appears that the appellant was not actually put behind bars as asserted by the appellant. 25.[5] At the end of the investigation, the Investigating Officer filed chargesheet in the Court of the Chief Judicial Magistrate which culminated in the Criminal Case No. 1015 of 2008. The appellant herein and the other co-accused were put to trial and vide the judgment and order dated 13-1-2016 passed by the Chief Judicial Magistrate District Sant Kabir Nagar came to be acquitted. 25.[6] At the time when the services of the appellant came to be terminated, he was a probationer.”

22. Thus, both the aforesaid cases pertained to instances in which the concerned employee was, at the time of filling in the application form, aware of the fact that criminal proceedings were pending against him, and willfully misstated and concealed the said fact while applying for the post.

23. These judgments cannot, therefore, apply in the facts of the present case.

24. The Tribunal has placed reliance on the judgment of the Supreme Court in Avtar Singh (supra) and has specifically extracted the principles culled out by the Supreme Court in cases such as this, from para 38 of the decision, thus, in para 16:

16. The issue in hand is no more res integra in view of the law laid down by the Hon’ble Apex Court in Avtar Singh (supra), para 38 of which reads as under:- “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 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.

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

25. Thus, the Supreme Court has clearly held, where the cancellation of candidature or termination of the service of the employee is on the ground that there was a misstatement or suppression at the time of application for employment, of the fact that there was a criminal case pending against him, it would be necessary for the establishment to also prove that the employee had knowledge of the pendency of the criminal case.

26. It is a simple truism that one cannot suppress something which is not within one’s knowledge. No man is omniscient.

27. The Tribunal was, therefore, correct in its view that the allegation, on the basis of which the respondent was terminated, which was that she had consciously suppressed the fact that a criminal case was pending against her, could not sustain.

28. Notably, this is not a case in which the respondent was terminated from service on the ground that, as there was a criminal case pending against her, she was not suitable for employment in the Delhi Police. The termination order was founded solely on the fact that she had suppressed the fact that there was a criminal case pending against her.

29. From the time of Commissioner of Police v Gordhandas Bhanji[9], the law is that an order has to stand or fall on the basis of what is contained therein and cannot be sought to be improved by arguments made in Court or even by an affidavit. Mohinder Singh Gill v The Chief Election Commissioner10, while relying on Gordhandas Bhanji, held, classically, thus:

AIR 1952 SC 16 construed objectively with reference to the language used in the order itself.” Orders are not like old wine becoming better as they grow older.”

30. We are not called upon, therefore, to examine any aspect of the matter except whether the respondent could have been terminated on the ground that she had suppressed the pendency of the criminal case against her.

31. We find ourselves entirely in agreement with the Tribunal that there was no material to indicate that the respondent was aware of the registration, against her, of FIR 39/2016. Though Mr. Haseeb sought to rely on the daily diary maintained at the concerned Police Station, even with respect to the said daily diary, the Tribunal has noted thus: “11. Learned counsel for the applicant has further argued that only for the reason that in the case diary the concerned Inquiry Officer has recorded that he has inquired from the applicant about her involvement in the said case FIR is of no consequence. He submits that even the case diary does not indicate that any notice and/or summon was ever issued or served upon the applicant and/or the applicant was informed about her such involvement. He has further argued that in light of the decision of the Hon’ble High Court of Guwahati in the case of State of Assam and Ors. v Niranjan Ghosh (supra), the case diary cannot have the value of evidence in a trial.”

32. Thus, even the daily diary maintained by the police did not indicate that the respondent was ever informed of the fact that she was involved in an FIR.

33. The Tribunal has held that a mere comment, by the Inquiry Officer that he inquired from the respondent about her involvement in an FIR, does not amount to knowledge, on her part, of the institution of an FIR against her.

34. We find no reason to differ with the said decision.

35. We are mindful of the fact that we are exercising certiorari jurisdiction under Article 226 of the Constitution, which must subscribe to the discipline of the following paragraphs from the judgment of Supreme Court in Syed Yakoob v K.S. Radha Krishnan11:

AIR 1964 SC 477 as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised.

8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases; the impugned error of law may not be obvious or patent on the of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconducted or contravened."

36. The Supreme Court, while rendering its judgement in L. Chandrakumar v UOI12, we are sanguine, never intended the High Court to be a forum for appeal against the decision of the Tribunal. What was intended, we feel, was to provide for a preliminary stage of judicial review by High Courts, of decisions of the Tribunal, before the matter travelled further upwards – if at all it did.

37. In exercise of our jurisdiction under Article 226 of the Constitution of India, we are of the opinion that no case is made out for interference with the impugned judgment, which is upheld in its entirety.

38. The writ petition is, therefore, dismissed in limine.

C.HARI SHANKAR, J. AJAY DIGPAUL, J. JANUARY 31, 2025 Click here to check corrigendum, if any