UNION OF INDIA & ORS. versus DILIP KUMAR MALLICK on 5 April 2022

1. Leave granted.

2. The challenge herein is to the judgment and order dated25.03.2019 in Writ Appeal No. 223 of 2018, whereby the Division Benchof the High Court of Orissa at Cuttack, in partial disapproval of theorder dated 10.04.2018 passed by the learned Single Judge of the HighCourt in Writ Petition(C) No. 24085 of 2018, interfered with thepunishment of removal from service, as awarded to the respondent; anddirected the present appellants to impose ‘any lesser punishment asdeemed just and proper’.

3. The only question for consideration in this appeal is, as to whetherthe Division Bench of the High Court was justified in interfering with thequantum of punishment awarded to the respondent? The backgroundaspects may be noticed to the extent relevant for the present purpose.

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A4. In the year 2003, the respondent was appointed under theCentral Reserve Police Force (‘CRPF’) Group Centre, Bhubaneswar.While continuing in service, a departmental inquiry was initiated againsthim on the allegations that though he was involved in Kendrapara PoliceStation Case No. 349 dated 26.09.2001 for the offences punishable underSections 341, 323, 294, 337, 506 read with Section 34 of the Indian PenalBCode and was charge-sheeted for the said offences on 01.12.2001; andthough the said criminal case was pending before the competent Courtbut, while filling up the verification roll, he suppressed/concealed thesaid fact and such an act was prejudicial to the discipline of CRPF. Therespondent participated in the inquiry and ultimately, he was awardedCthe punishment of removal by the Disciplinary Authority. The appealtaken by the respondent was also dismissed by the Appellate Authorityon 31.07.2009.

5. However, on 02.02.2012, a writ petition filed by the respondentbearing No. 14945 of 2009 was allowed by the High Court to the extentDthat the Appellate Authority was directed to reconsider the appeal withintwo months in light of the judgment of this Court in the case ofCommissioner of Police and Ors. v. Sandeep Kumar: (2011) 4 SCC644. The Appellate Authority, thereafter, passed a fresh order on22.08.2012, again dismissing the appeal and declining to interfere withEthe decision of the Disciplinary Authority. The respondent againapproached the High Court by way of the writ petition leading to thepresent appeal, being W.P.(C) No. 24085 of 2012.

6. The plea taken by the present respondent before the learnedSingle Judge in this writ petition was that, he had not suppressed anyFinformation so as to be held guilty in disciplinary proceedings. In respectof the particular column in the verification roll, it was submitted, he hadneither mentioned ‘Yes’ nor mentioned ‘No’ as regards the criminal case.It was also asserted that he was neither arrested nor remanded to judicialcustody; and the matter having been settled between the parties in theGvillage, he did not know about the pendency of the case and hence, didnot state any information in that regard in the relevant column of theverification roll. The present appellants opposed the writ petition withthe submissions that the respondent left the relevant column blank, thoughthe criminal case was pending against him and such an act was that ofconcealment/suppression of material facts.H

6.1. The learned Single Judge did not agree with the contentionsof the present respondent (writ petitioner) and on 10.04.2018, dismissedthe writ petition while concluding that he had concealed the facts abouthis involvement in the criminal case.

7. The intra-court appeal against the order so passed by the learnedSingle Judge was considered and decided by the Division Bench of theHigh Court by the impugned order dated 25.03.2019. The Division Benchof the High Court examined all the contentions raised before it withreference to several decisions of this Court and found no reason tointerfere with the basic findings of the learned Single Judge as regardsguilt/delinquency of the appellant and affirmed the conclusion in thatregard in the following terms: - “In view of the aforesaid settled positions of Law and thefacts and circumstances of the present case as to non-supply ofrequired information of which the petitioner-appellant has beenfound guilty, we do not find any cogent reason to interfere withthe findings reached by the learned Single Judge in that regard.”

7.1. However, thereafter, the Division Bench of the High Courtreferred to a few passages in the 3-Judge Bench decision of this Courtin Avtar Singh v. Union of India and Others: (2016) 8 SCC 471, andobserved that the respondent had been acquitted in the said criminalcase prior to awarding of punishment in the disciplinary proceedings.The Division Bench also observed that the matter was earlier remandedto the Appellate Authority for re-consideration in light of the decision ofthis Court in the case of Sandeep Kumar (supra) but, the AppellateAuthority again stuck to the punishment of removal and thereby, set atnaught the directions of the Court. On these considerations, the DivisionBench formed the view that the punishment of removal from servicewas too harsh and thus, directed the present appellants to impose ‘anylesser punishment as deemed just and proper’. The Division Benchalso issued consequential orders and directions as regards continuity ofservice of the respondent. The relevant and concluding part of the orderimpugned reads as under: - “10. In the instant case, the petitioner-appellant was charge-sheeted along with others for the offences punishable underSections 341/323/294/337/506 read with Section 34 of the IndianPenal Code. offences are petty offences said the petitioner- A

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appellant along the others stood acquitted with the specificobservation of the learned trial court that the matter has beencompromised between the parties, which was the specific pica ofthe petitioner-appellant that he had no knowledge about thependency of case since the matter was compromised at the village.It may also be mentioned here that when the petitioner was firstawarded with the punishment of removal from service, he hadapproached this Court in W.P.(C) No. 14945 of 2009 and thisCourt had set aside the punishment directing the appellate authorityto reconsider the matter in the light of the judgment rendered bythe Hon’ble Apex Court in the case of Sandeep Kumar (supra).But the appellate authority again stuck to the punishment ofremoval thereby setting the direction of this Court at naught.Keeping in view the discussed facts and circumstances we are ofthe considered opinion that the punishment of removal from serviceas has been imposed against the petitioner-appellant was too harshcalling for interference by this Court in exercise of power underArticle 226 of the Constitution of India.

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11. Accordingly, the appeal is allowed in part. Only the punishmentof removal from service as has been awarded against thepetitioner-appellant is set aside and the opposite parties-respondents are directed to impose any lesser punishment asdeemed just and proper. The petitioner-appellant shall be deemedto be continuing in service notionally from the date he was removedfrom service and shall be considered for the purpose of allconsequential service benefits subject to any lesser punishment,if any, to be awarded by the competent authority-opposite parties-respondents.

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However, the petitioner-appellant shall not be entitled toany pecuniary benefit for the period he was out of service.

The writ appeal is disposal of accordingly. No order as tocost.”

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8. Assailing the order aforesaid, it has been strenuously argued byMs. Nidhi Khanna, learned counsel for the appellant that, furnishing offalse information and suppression of any relevant fact in the verificationroll could only be viewed disfavourably and a person like the respondent,with the admitted position of suppression of material fact about pendencyHof the criminal case against him, could not have been ordered to be

taken back in service; and the punishment of removal from service inthis matter called for no interference. Learned counsel has particularlyreferred to and relied upon the 3-Judge Bench decision of this Court inthe case of Avtar Singh (supra).

9. Per contra, it is submitted by Mr. Piyush Kumar Roy, learnedcounsel for the respondent that the respondent had been serving theappellants without any cause of complaint since after his appointment inthe year 2009. It is submitted with reference to the judgment and orderdated 01.05.2008, as passed by the Sub-Divisional Judicial Magistrate,Kendrapara in Trial No. 33 of 2002 pertaining to GR Case No. 613 of2001, that the respondent was honourably acquitted in the said casepertaining to the offences of petty nature where more than 50 personsof the village were parties and it had not been a matter of criminality ofconduct of the respondent. Learned counsel for the respondent hasstrenuously argued that the respondent had not been guilty of supplyingany false information; and in such a case of trivial nature, where therespondent was ultimately acquitted honourably, the punishment ofremoval from service would be too harsh and in the totality of thecircumstances, the Division Bench has rightly interfered to the limitedextent of requiring the authorities to re-consider the matter on the quantumof punishment.

9.1. With reference to the decision in Avtar Singh (supra) andparticularly to the summation in paragraph 38.4 and its sub-paragraphs,the learned counsel would submit that this being a matter of trivial nature,where the respondent had been honourably acquitted, the employer inits discretion could ignore such alleged suppression of facts, which didnot carry the element of any ill-intent on the part of the respondent.Learned counsel has also made a fervent plea for leniency, particularlywith reference to the facts that the respondent comes from a humblebackground and has a family to support.

10. Having given thoughtful consideration to the rival submissionsand having examined the material placed on record, we find it difficult toendorse the approach and views of the Division Bench of the High Courtin this matter.

11. The fact that the respondent was guilty of suppressing materialfact is not of any doubt or dispute. He had indeed left the relevant columnsin the verification roll blank; and thereby, had been wanting inforthrightness while filling up the verification roll for employment with A

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Athe appellant. Admittedly, at the time of filling up the verification roll, thecriminal case was pending. The respondent cannot feign ignorance aboutthe said case because he indeed surrendered before the Trial Court andwas granted bail. That being the position, the findings whereby he is heldguilty of misconduct of suppression/concealment of material information,cannot be faulted at. In fact, such findings of the Disciplinary AuthorityBand the Appellate Authority have been affirmed by the learned SingleJudge as also by the Division Bench in the order impugned. The question,then, is as to whether the Division Bench was justified in interfering withthe quantum of punishment? In our view, the answer could only be in thenegative.C12. As regards the effect of suppression of facts, the 3-JudgeBench of this Court in the case of Avtar Singh (supra), has stated theprinciples in no uncertain terms thus: -

“32. No doubt about it that once verification form requires certainDinformation to be furnished, declarant is duty-bound to furnish itcorrectly and any suppression of material facts or submitting falseinformation, may by itself lead to termination of his services orcancellation of candidature in an appropriate case. However, in acriminal case incumbent has not been acquitted and case is pendingtrial, employer may well be justified in not appointing such anEincumbent or in terminating the services as conviction ultimatelymay render him unsuitable for job and employer is not supposedto wait till outcome of criminal case. In such a case non-disclosureor submitting false information would assume significance andthat by itself may be ground for employer to cancel candidatureFor to terminate services.”

12.1. Of course, in Avtar Singh, various eventualities and theapplicable principles have been summarised in paragraph 38 and sub-paragraph thereof. We may reproduce the relevant parts, as occurringin paragraphs 38.1 to 38.4.3, as under: -G

“38.1. Information given to the employer by a candidate asto conviction, acquittal or arrest, or pendency of a criminal case,whether before or after entering into service must be true andthere should be no suppression or false mention of requiredinformation.

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38.2 While passing order of termination of services orcancellation or candidature for giving false information, theemployer may take notice of special circumstances of the case, ifany, while giving such information.

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

38.4 In case there is suppression or false information ofinvolvement in a criminal case where conviction or acquittal hadalready been recorded before filing of the application/verificationform and such fact later comes to knowledge of employer, any ofthe following recourses appropriate to the case may be adopted:

38.4.1. In a case trivial in nature in which conviction hadbeen recorded, such as shouting slogans at young age or for apetty offence which if disclosed would not have rendered anincumbent unfit for post in question, the employer may, in itsdiscretion, ignore such suppression of fact or false information bycondoning the lapse.

38.4.2. Where conviction has been recorded in case whichis not trivial in nature, employer may cancel candidature orterminate services of the employees.

38.4.3. If acquittal had already been recorded in a caseinvolving moral turpitude or offence of heinous/serious nature, ontechnical ground and it is not a case of clean acquittal, or benefitof reasonable doubt has been given, the employer may considerall relevant facts available as to antecedents, and may takeappropriate decision as to the continuance of the employee.”

13. Thus, it remains beyond the pale of doubt that the cases ofnon-disclosure of material information and of submitting false informationhave been treated as being of equal gravity by this Court and it is laiddown in no uncertain terms that non-disclosure by itself may be a groundfor an employer to cancel the candidature or to terminate services. Evenin the summation above-quoted, this Court has emphasized thatinformation given to the employer by a candidate as to criminal caseincluding the factors of arrest or pendency of the case, whether beforeor after entering into service, must be true and there should be nosuppression or false mention of the required information.

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A14. In case of suppression, when the facts later come to theknowledge of employer, different courses of action may be adopted bythe employer depending on the nature of fault as also the nature ofdefault; and this Court has indicated that if the case is of trivial nature,like that of shouting slogans at a young age etc., the employer mayignore such suppression of fact or false information depending on theBfactors as to whether the information, if disclosed, would have renderedincumbent unfit for the post in question.

14.1. However, the aforesaid observations do not lead to thecorollary that in a case of the present nature where a criminal case wasindeed pending against the respondent and the facts were altogetherComitted from being mentioned, the employer would be obliged to ignoresuch defaults and shortcomings. On the contrary, as indicated above, anon-disclosure of material information itself could be a ground forcancellation of employment or termination of services.

15. We have also taken note of the fact that the decision of theDso-called honourable acquittal was rendered by the Trial Court as late ason 01.05.2008. This leads to the position that the respondent, who enteredthe employment in CRPF in the year 2003 without disclosing the fact ofpendency of criminal case against him, had continued to remain as apending-trial accused person without the knowledge of the department,Euntil the facts were noticed and he was subjected to departmentalproceedings.

16. In the given set of facts and circumstances, where suppressionof relevant information is not a matter of dispute, there cannot be anylegal basis for the Court to interfere in the manner that the employer beFdirected to impose ‘any lesser punishment’, as directed by the DivisionBench of the High Court. The submissions seeking to evoke sympathyand calling for leniency cannot lead to any relief in favour of therespondent.

17. Accordingly, and in view of the above, this appeal succeedsGand is allowed; the questioned part of the impugned order dated25.03.2019, i.e., paragraph 11 where the Division Bench interfered withthe quantum of punishment, is set aside. The writ petition filed by therespondent shall stand dismissed without any order as to costs.

HDevika Gujral