Supreme Court of India
AVTAR SINGHversusUNION OF INDIA & ORS.
- Citation
- 2017 INSC 1116
- Decided
- 21 July 2016
- Disposal
- Reference answered
Holding
Information on criminal antecedents must be true; material suppression or false statements may justify cancellation of candidature or termination of service, subject to the nature of the offence, the employee's post, and procedural safeguards, while trivial omissions may be condoned at the employer's discretion.
Summary
The petitioners challenged the cancellation of their appointments and termination of service on the ground that they had either omitted or misrepresented information about criminal prosecutions, arrests, convictions or pendency of cases in the verification forms required for recruitment. The Supreme Court was asked to resolve conflicting decisions on whether such suppression or false statements constitute material grounds for denial of appointment or dismissal, especially for uniformed services and confirmed employees. The Court held that information on criminal antecedents must be true; material suppression can justify cancellation or termination, but trivial offences may be condoned at the employer's discretion. For serious offences or multiple pending cases, the employer may lawfully cancel candidature or terminate service, while for confirmed employees protected under Article 311(2) a departmental inquiry is required. The Court emphasized that the verification form must be specific, and liability arises only for facts the form expressly requires, though employers may consider additional relevant information. Finally, the Court answered the reference, laying down a comprehensive framework for employers to assess fitness, and directed that the matter be placed before an appropriate bench for merits.
Issues considered
- The effect of suppression or false information in verification forms regarding criminal prosecution, arrest, conviction, acquittal or pendency on appointment and service continuity.
- Whether the employer may condone trivial omissions or must cancel/terminate for serious or multiple pending cases.
- The applicability of Article 311(2) of the Constitution to confirmed employees facing termination for misrepresentation.
- The extent to which employers can rely on information not expressly asked for in the verification form.
- The appropriate procedural safeguards, including the need for departmental inquiry, before terminating a confirmed employee.
Legislation cited
- Constitution of Indias. Article 311(2)
- Industrial Disputes Act, 1947s. Section 17-B
Subjects
verification of antecedentssuppression of material informationappointment cancellationtermination of serviceuniformed servicesArticle 311(2)criminal antecedentsfalse statementsemployer discretionprobation
Judgment
[2016] 7 S.C.R. 445
AVTAR SINGH A
v.
UNION OF INDIA & ORS.
(Special Leave Petition (Civil) No. 20525of2011)
JULY21,2016 B
[RANJAN GOGOi, ARUN MISHRA AND
PRAFULLA C. PANT, JJ.)
SERVICE LAW.·
Appointment - Verification of antecedents - Importance of - c
Quashing of appointment or dismissal from service on account of
supp:-ession of information or submission of false information in
the verification as to question of having been criminally prosecuted,
arrested or as to pendency of a criminal case - Held: Information
given to the employer by a candidate as to conviction, acquittal
D
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 - 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 E
later comes to knowledge of employer, any of the following recourse
appropriate to the case may be adopted: In a case trivial i:7 nature
in which conviction had been recorded, which if disclosed would
not have rendered an incumbent unfit for post in question, the
empbyer may, in its discretion, ignore such suppression of fact or
F
false information by condoning the lapse - Where conviction has
been recorded in case which is not trivial in nature, employer may
cancel candidature or terminate services of the employee - 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 G
daub: 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 - In a case of deliberate
suppression offact with respect to multiple pending cases such false
information by itself will assume significance and an emplcyer may
H
445
446 SUPREME COURT REPORTS [2016] 7 S.C.R.
A pass appropriate order cancelling candidature or terminating
services as appointment of a person against whom multiple criminal
cases were pending may not be proper.
Appointment - Declaration of employee as to concluded
criminal case - Held: Where the employee has made declaration
B truthfully of a concluded criminal case, the employer still has the
right . to consider antecedents, and cannot be compelled to appoint
the candidate.
Appointment - Declaration of employee as to pendency of
criminal case - Held: In case when fact has been truthfully declared
C 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.
Termination of employee on the ground of misrepresentation
D or supp,.ession of material information in the verification - Held:
Merely because there is a power to terminate services or cancellation
of offer of appointment, it does not follow that a person should be
removed outrightly - Various aspects have to be considered and the
discretion so used should not be arbitrary or fanciful - It has to be
guided on certain principles for which purpose verification is
E sought.
Termination of confirmed employee on the ground of
misrepresentation or suppression of material information in the
verification - Held: The fraud and misrepresentation vitiates a
transaction and in case employment has been obtained on the
F basis offorged documents, the incumbent may be terminated wilhout
holding any inquiry - However in case employee is confirmed,
holding a civil post and has protection of Article 311 (2), due
inquiry has to be held before terminating the services.
Verification form - Held: For determining suppression or false
G information, the 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
H
AVTAR SINGH v. UNION OF INDIA & ORS. 447
on the basis of suppression or submitting false information as to a A
fact which was not even asked for - Before a person is held guilty
of suppressio veri or suggestio falsi, la10wledf{e of the fact must be
attributable to him.
Appointment - Verification of antecedents - Lack of knowledge
on part of employee as to pending criminal case - Held: Appointing B
authority to take decision after considering the seriousness of the
crime.
Answering the reference, the Court
HELD: 1. In case the employer comc<1 to the conclusion
that suppression is immaterial and even if facts would have been c
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 nigher officials/higher posts, standard has to be very high D
and even slightest false information or suppression may hy 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 in not appointing or if appointed,. E
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, F
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 01· ground of
acquittal in criminal case would not affect the fitness for
employment, incumbent may be appointed or continued in G
service. [Para 22] (489-F-H; 490-A-CJ
2. Coming to the question, whether an employee on
probation can be discharged/refused appointment though he
has been acquitted of the charge/s, if his case was not pending
H
448 SUPREME COURT REPORTS [2016] 7 S.C.R.
A when form was filled, in such matters, employer is bound to
consider grounds of acquittal and various other aspects, overall
conducl of em11Ioyee including the accusations which have been
levelled. If on verification, the antecedents are otherwise also
not found good, and in number of cases incumbent is involved
then notwithstanding acquittals in a case/cases, it would be open
B
to the employer to form opinion as to fitness on the basis of
material on record. In case offence is petty in nature committed
at young age, such as stealing a bread, shunting of slogans or is
such which does not involve moral turpitude, cheating,
misappropriation etc. or otherwise not a serious or heinous
c offence and accused has been acquitted in such a case when
verification form is filled, employer may ignore lapse of
suppression or submitting false information in appropriate cases
on due consideration of various aspects. No doubt about it that
once verification form requires certain information to be
furnish~d, declarant is duty bound to furnish it correctly and
D
any suppression of material facts or submitting false information,
may by itself lead to termination of bis services or cancellation
of candidature in an appropriate case. However, in a criminal
case incumbent bas not been acquitted and case is pending trial,
employ~r may well be justified in not appointing such an incumbent
E or in terminating the services as conviction ultimately may render
him unGuitable for; job and employer is not supposed to wait till
outcome of criminal case. In such a case non-disclosure or
submitting false information would assume significance and that
by itself may be ground for employer to cancel candidature or
to terminate services. [Paras 23 and 24) (490-D-H; 491-AJ
F
3; The fraud and misrepresentation vitiates a transaction
and in case employment has been obtained on the basis of forged
documents, the incumbent may be terminated without holding
any inquiry, however in ease employee is confirmed, holding a
civil post and has protection of Article 311(2), due inquiry has
G to be held before terminating the services. The case of obtaining
a1>1>ointment on the basis of forged documents has the effect on
very eligibility of incumbent for the job in question, however,
verification of antecedents is different aspect as to his fitness
otherwise for the post in question. Verification of character and
H
AVTAR SINGH v. UNION OF INDIA & ORS. 449
antecedents is one of the important criteria to assess suitability A
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. [Paras 25
and 26] J491-B-E] ·
4. Suppression of 'material' information presupposes that 8
what is suppressed that 'matters' not every technical or trivial
matter. The employer has to act 011 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 c
. 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. What yardstick is to be applied has
to depend upon the nature of 11ost, higher post would involve
more rigorous criteria for all services, not only to uniformed D
service. For lower posts which are not sensitive, nature of duties,
imp~ct of suppression on suitability has to be considered by
concerned authorities considering post/nature of duties/services
and power bas to be exercised on due consideration of various
aspects. The 'McCarthyism' is antithesis to constitutional goal,
chance of reformation has to be afforded to young offenders in E
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
canc~lling candidature or discl1arging an employee from service;
(Paras 27, 28 and 29) (491-F-H, 492-A-BJ F
Union of India & Ors. v. M Bhaskaran (1995) Supp 4
SCC 100: 1995 (4) Suppl. SCR 526 - Distinguished.
Secretary, Department of Home Secy:, A.P. & Ors. l( B.
Chinnam Naidu (2005) 2 SCC 746: 2005 (1) SCR 1147;
R. Radhakrishnan v. Director General of Police & Ors. G
(2008) 1 SCC 660: 2007 (11) SCR 456; Union of India
& Ors. v. Bipad Bhanjan Gayen (2008) 11 SCC 314:
2008 (8) SCR 99; A.P. Public Service Co111111issio11 v.
Kone ti Venkateswarulu & Ors. (2005) 7 SCC 177: 2005
(2) Suppl. SCR 1050; Kamal Nayan Mishra v. State of H
450 SUPREME COURT REPORTS [2016) 7 S.C.R.
A Madhya Pradesh & Ors. (2010) 2 SCC 169: 2009 (16)
SCR 237; Ram Kumar v. State of Utttar Pradesh & ·Ors.
(2011) 14 SCC 709: 2011 (10) SCR 506; State of
Madhya Pradesh v. Ramashanker Raghuvanshi & Am:
(1983) 2 SCC 145:1983 (2) SCR 393; S. Vasudavan
N'lir v. Director of Vikram Sarabhai Space Centre &
B
Ors. (1988) Supp SCC 795; Delhi Administration
through its Chief Secretary & Ors. v. Sushi! Kumar
(1996) 11 sec 605: 1996 (7) Suppl. SCR 199;
Commissioner of Police, Delhi & Am: v. Dhaval Singh
(1999) 1 SCC 246; Kendriya Vidyalaya Sangathan &
c Ors. v. Ram Ratan Yadav (2003) 3 SCC 437: 2003 (2)
SCR 361; Secretary, Depart111e11t of Home Secy., A.P. &
Ors. v. B. Chinnam Naidu (2005) 2 SCC 746: 2005 (1)
SCR 1147; A.P. Public Service Commission v. Koneti
Venkateswarulu & Ors. (2005) 7 SCC 177: 2005 (2)
Suppl. SCR 1050; Kamal Nayan Mishra v. State of
D
Madhya Pradesh·& Ors. (2010) 2 SCC 169: 2009 (16)
SCR 237; Daya Shankar Yadav v. Union of India &
Ors. (2010) 14 SCC 103: 2010 (13) SCR 1076; State
of West Bengal & Ors. v. SK. Nazrul Islam (2011) 10
SCC 184: 2011 (12) SCR 1033; Co111111issio11er of Police
E & Ors. v. Sandeep Kumar (2011) 4 SCC 644: 2011 (3)
SCR 964 - relied on.
Jainendra Singh v. State of U.P. through Principal
Secretary, Home & Ors. (2012) 8 SCC 748: 2012 (6)
SCR 1047; Regional Manager, Bank of Baroda v.
F Presiding Officer, Central Govt. Industrial Tribunal &
Am: (1999) 2 SCC 247 - referred to.
Morris v. Crown Office (1970) 2 QB 114; Garner v.
Board of Public Works 341 US 716 - referred to.
Case Law Reference
G
2012 (6) SCR 1047 referred to Para 1
1983 (2) SCR 393 relied on Para3
(1988) Supp sec 795 relied on Para4
1995 (4) Suppl. SCR 526 Distinguished Paras
H
AVTAR SINGH v. UNION OF INDIA & ORS. 451
1996 (7) Suppl. SCR 199 relied on Para6 A
(1999) 1 sec 246 relied on Para7
(1,99) 2 sec 247 referred to Para8
2003 (2) SCR 361 relied on Para9
200~ (1) SCR 147 relied on Para 10. B
2007 (11) SCR 456 relied on Para 11
20Q~ (8) SCR99 relied on Para 12
2005 (2) Suppl. SCR 1050 relied on Para 13
2009 (16) SCR 237 relied on Para 14
c
2010 (13) SCR 1076 relied on Para 15
2011 (12) SCR 1033 relied on Para 17
2on (3) SCR 964 relied on Para 18.
D
2011 (10 ) SCR 506 relied on Para 19
CIVIL APPELLATE JURISDICTION: Special Leave Petition
(Civil) No. 20525 of201 l
From the Judgment and Order dated 02.12.2010 of the High Court
of Punjab & Haryana in L. P.A. No. 951 of 20 I 0 E
WITH
SLP(C) Nos. 4757 and 24320 of2014~ ·
Ms. Kiran Suri, Sr. Adv., Pahlad Singh Shanna, Ms. Hari Priya,
Tushar Bakshi, Ms: Gun want Dara, Ms. Anil Katiyar, B. Krishna Prasad, F
Gyanendra Singh, Vishwa Pal Singh, Shreekant N. Terdal, Rajshekhar
Rao, Sameer Dawar, Varun Mishra, Abhinav Mukerji, P. K. Dey, M.
Khairati, D. S. Mahra, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ARUN MISHRA, J. I. The cases have been referred to for G
resolving the conflict of opinion in the various decisions of Division
Benches of this Court as noticed by this Court in Jainendra Singh v.
State of U.P. through Principal Secretary, Home & Ors. (2012) 8
SCC 748. The Court has considered the cleavage of opinion in various
decisions on the question of suppression of information or submitting
H
452 SUPREME COURT REPORTS [2016] 7 S.C.R.
A false information in the verification form as to the question of having
been criminally prosecuted, arrested or as to pendency of a criminal
case. A Division Bench of this Comt has expressed the opinion on merits
while referring the matter as to the various.principles to be borne in mind
before granting relief to an aggrieved party. following is the relevant
observation made by a Division Bench of this Comt:
B
"29. As noted by us, al I the above decisions were rendered
by a Division Bench of this Court consisting of two Judges
and having bestowed our serious consideration to the issue,
we consider that while dealing with such an issue, the Court
will.have to bear in mind the various cardinal principles
c before granting any relief to the aggrieved party, namely:
29.1. Fraudulently obtained orders of appointment could
be legitimately treated as voidable at the option of the
empfoyer or could be recalled by the employer and in such
cases merely because the respondent employee has
D continued in service for a number of years, on the basis of
such fraudulently obtained employment, cannot get any
equity in his favour or any estoppel against the employer.
29.2. Verification of the character and antecedents is one
of the important criteria to test whether the selected
E candidate is suitable to the post under the State and on
account of his antecedents the appointing authority if finds
it not desirable to appoint a person to a disciplined force
can it be said to be unwarranted.
29.3. When appointment was procured by a person on the
F basis of forged documents, it would amount to
misrepresentation and fraud on the employer and, therefore,
it would create no equity in his favour or any estoppel against
the employer while resorting to termination without holding
any inquiry.
G 29.4. A candidate having suppressed material information
and/or giving false information cannot claim right to continue
in service and the employer, having regard to the nature of
employment as well as other aspects, has the discretion to
terminate his services.
H 29.5. The purpose of calling for information regarding
AVTAR SINGH v. UNION OF INDIA & ORS. 453
[ARUN MISHRA, J.]
involvement in any criminal case or detention or conviction A
is for the purpose of verification of the character/
antecedents at the time of recruitment and suppression of
such material information will have a clear bearing on the
character and antecedents of the candidate in relation to
his continuity in service.
B
29.6. The person who suppressed the material information
and/or gives false information cannot claim any right for
appointment or continuity in service.
29. 7. The standard expected of a person intended to serve
in uniformed service is quite distinct from other services c
and, therefore, any deliberate statement or omission
regarding a vital information can be seriously viewed and
the ultimate decision of the appointing authority canrtot be
faulted.
29.8. An employee on probation can be discharged from D
service or may be refused employment on the ground of
suppression of material information or making false
statement relating to his involvement in the criminal case,
conviction or detention, even ifultimately he was acquitted
of the said case, inasmuch as such a situation would make
a person undesirable or unsuitable for the post. E
29.9. An employee in the uniformed service presupposes a
higher level of integrity as such a person is expected to
uphold the law and on the contrary such a service born in
deceit and subterfuge cannot be tolerated.
F
29.10. The authorities entrusted with the responsibility of
appointing constables, are under duty to verify the
antecedents of a candidatv..to find out whether he is suitable
for the post of a constable and so long as the candidate has
not been acquitted in the criminal case, he cannot be held
to be suitable for appointment to the post of constable. G
30. When we consider the above principles laid down in
the majority of the decisions, the question that looms large
before us is when considering such claim by the candidates
who deliberately suppressed information at the time of
recruitment, can there be different yardsticks applied in the H
454 SUPREME COURT REPORTS [2016] 7 S.C.R.
A matter of grant of relief.
31. Though there are very many decisions in support of the
various points culled out in the above paragraphs, inasmuch
as we have noted certain other decisions taking different
view of coordinate Benches, we feel it appropriate to refer
B the abovementioned issues to a larger Bench of this Court
for an authoritative pronouncement so that there will be no
conflict of views and which will enable the courts to apply
the law uniformly while dealing with such issues."
2. This Court while referring the matter had expressed the opinion
c that in case an appointment order has been secured fraudulently, the
appointment is voidable at the option of the employer and the employee
cannot get any equity in his favour and no estoppel is created against the
employer only by the fact that the employee has continued in service for
a number of years. It has been further observed that if appointment is
secured on forged documents, it would amount to misrepresentation and
D fraud. The employer has a right to terminate the services on suppression
of impo1iant information or giving false information, having regard to
nature of employment. Verification of character and antecedents is
important ifthe employer has found an incumbent to be undesi:-able for
appointment to a disciplined force. It cannot be said to be unwarranted.
E The Court thus further opined that suppression of material information
necessary for verification of character/antecedents will have a clear
bearing on character and antecedents of a candidate in relation to his
continuity in service and such a person cannot claim a right for
appointment or continuity in service. The Bench was of the view that in
uniformed service, suppression or false information can be viewed
F seriously as it requires higher level of integrity and the employer is
supposed to find out before an appointment is made that criminal case
has come to an end and pendency of a case would serve as a bar for
appointment and in such cases of suppression whether different yardsticks
can be applied as noted in the various decisions of this Court. The question
G which has been referred to arises frequently and there are catena of
decisions taking one view or the other on the facts of the case. It would
be appropriate to refer to the various decisions rendered by this Court;
some of them have been referred to in the impugned order.
3. It cannot be disputed that the whole idea of verification of
H character and antecedents is that the person suitable for the post in
AVTAR SINGH v. UNION OF INDIA & ORS. 455
[ARUN MISHRA, J.]
question is appointed. ft is one of the important criteria which is necessary A
to be fulfilled before appointment is made. An incumbent should not
have antecedents of such a nature which may adjudge him unsuitable
for the post. Mere involvement in some petty kind of case would not
render a person unsuitable for the job. Way back in the year 1983, in
State of Madhya Pradesh v. Ramashanker Raghuvanshi & Anr.
B
(1983) 2 sec 145, where a teacher was employed in a municipal school
which was taken over by the Government and who was absorbed in
Government service in 1972 subject to verification of antecedents and
medical fitness. The termination order was passed on the basis of a
report made by the Superintendent of Police to the effect that the
respondent was not a fit person to be entertained in Government service, c
as he had taken part in 'RSS and Jan Sangh activities'. There was no
allegation of involvement in subversive activities. It was held that such
activities were not likely to affect the integrity of individual's service. To
ho Id otherwise would be to introduce 'McCarthyism' into India which is
not healthy to the philosophy of our Constitution. It was observed by this
D
Court that most students and most youngmen who take part in political
activities and if they do get involved in some form of agitation or the
other, is it to be to their ever lasting discredit ? Sometimes they feel
strongly on injustice and resist. They are sometimes pushed into the
forefront by elderly persons who lead and mislead them. Should all these
young men be debarred from public employment? Is Government service E
such a heaven that only angels should seek entry into it? This Court has
laid down that the whole business of seeking Police report about the
political beliefand association of the past political activities of a candidate
for public employment is repugnant to the basic rights guaranteed by the
Constitution. This Court has considered in Ramashanker Raf{huvanshi's
F
case (supra) the decision in Garner" Board qf Public Works 341 US
716thus:
"5. In another loyalty oath case, Garner" Board of
Public Works 341 US 716, Douglas, J. had this to say:
Here the past conduct for which punishment is G
exacted is single - advocacy within the past five years
of the overthrow of the Government by force and
violence. In the other cases the acts for which
Cummings and Garland stood condemned covered a
wider range and involved some conduct which might be
H
456 SUPREME COURT REPORTS (2016] 7 S.C.R.
A vague and uncertain. But those differences, seized on
here in hostility to the constitutional provisions, are wholly
irrelevant. Deprivation of a man's means of livelihood
by reason of past conduct, not subject to this penalty
when committed, is punishment whether he is a
professional man, a day laborer who works for private
8
industry, or a Government employee. The deprivation is
nonetheless unconstitutional whether it be for one single
past act or a series of past acts ...
Petitioners were disqualified from office not for
what they are today, not because of any program they
c currently espouse (cf. Gerende v. Board of
Supervisors 341 US 56), not because of standards
related to fitness for the office, cf Dent v. West Virginia
129 US 114; Hawkeni New York 170 US 189, but for
what they once advocated ...
D 6. In the same case, Frankfurter, J. observed :
The needs of security do not require such curbs
on what may well be innocuous feelings and associations.
Such curbs are indeed self-defeating. They are not
merely unjustifiable restraints on individuals. They are
E not merely productive of an atmosphere or repression
uncongenial to the spiritual vitality of a democratic
society. The inhibitions which they engender are hostile
to the best conditions for securing a high-minded and
high-spirited public service.
F xxxxx
I 0. We are not for a moment suggesting that even after
entry into government service, a person may engage himself
in political activities. All that we say is that he cannot be
turned back at the very threshold on the ground of his past
G political activities. Once he becomes a government servant,
he becomes subject to the various rules regulating his
conduct and his activities must naturally be subject to all
rules made in conformity with the Constitution."
At the same time, this Court has also observed that after entry
H into Government service, a person has to abide by the service rules in
AVTAR SINGH v. UNION OF INDIA & ORS. 457
[ARUN MISHRA, J.]
conformity with the Constitution. A
4. A 3-Judge Bench of this Court in T. S. Vasudava11 Nair v.
Director of Vikram Sarabhai Space Centre & Ors. ( 1988) Supp SCC
795 had considered a case where the employee had suppressed the fact
that during emergency he had been convicted in a case registered under
the Defence oflndia Rules for having_:,:;:~:-::' slogans on one occasion. B
This t::ourt has laid down that cancelling the offer ofappointment due to
such non-disclosure was illegal and the employer was directed to appoint
him as a Lower Division Clerk. Thus this Court has taken the view that
non-disclosure of aforesaid case was not a material suppression on the
basis of which employment could have been denied and the person
adjudged unsuitable for being appointed as an LDC. This Court has laid
c
down thus:
"2. We have heard learned counsel for the parties. In the
special facts and circumstances of this case we feel that
the appellant should not have been denied the employment
on the sole ground that he had not disclosed that during D
emergency he had been convicted under the Defence of
India Rules for having shouted slogans on one occasion.
We, therefore, set aside the judgment of the High Court
and also the order dated August 1, 1983 cancelling the ofter
of appointment. The respondents shall issue the order of E
appointment to the appellant within three months appointing
him as a Lower Division Clerk. if he is not otherwise
disqualified. with effect from the date on which he assumes
duty. It is open to the respondents to employ the appellant
at any place of their choice. The appeal is disposed of
accordingly." F
5. In Union of India & Ors. 1\ M Bhaskaran (1995) Supp 4
SCC 100, it was held that if some persons have procured employment in
Railway on the basis of bogus and forged casual labourer service cards,
they were rightly held guilty ofmisrepresei1tation and fraud. Mere long
continuance of such employment could not create any equity in their G
favour or estoppel against the employer. The question was left open
whether after obtaining employment on the basis of bogus and forged
casual labourer service cards was covered under Rule 3 l(l)(i) and (iii)
of the Railway Services (Conduct) Rules, 1966. It was held that the
employment procured by fraud is voidable at the option of the employer H
458 SUPREME COURT REPORTS [2016] 7 S.C.R.
A and employee cannot plead estoppel. This Court has laid down thus:
"6. It is not necessary for us to express any opinion on the
applicability of Rule 3(1 )(i) and (iii) on the facts of the
present cases for the simple reason that in our view the
railway employees concerned, respondents herein, have
B admittedly snatched employment in railway service, maybe
of a casual nature, by relying upon forged or bogus casual
labourer service cards. The unauthenticity of the service
cards on the basis of which they got employment is clearly
established on record of the departmental enquiry held
against the employees concerned. Consequently, it has to
c be held that the respondents were guilty of misrepresentation
and fraud perpetrated on the appellant-employer while
getting employed in railway service and had snatched such
employment which would not have been made available to
them if they were not armed with such bogus and forged
D labourer service cards. Learned counsel for the respondents
submitted that for getting service in railway as casual
labourers, it was strictly not necessary for the respondents
to rely upon such casual service cards. If that was so there
was no occasion for them to produce such bogus
certificates/service cards for getting employed in railway
E service. Therefore, it is too late in the day for the respondents
to submit that production of such bogus or forged service
cards had not played its role in getting employed in railway
service. It was clearly a case of fraud on the appellant-
employer. If once such fraud is detected, the appointment
F orders themselves which were found to be tainted and
vitiated by fraud and acts of cheating on the part of
employees, were liable to be recalled and were at least
voidable at the option of the employer concerned; This is
precisely what has happened in the present case. Once the
fraud of the respondents in getting such employment was
G detected, the respondents were proceeded against in
departmental enquiries and were called upon to have their
say and thereafter have been removed from service. Such
orders ofremoval would amount to recalling of fraudulently
obtained erroneous appointment orders which were avoided
H by the employer-appellant after following the due procedure
AVTAR SINGH v. UNION OF INDIA & ORS. 459
[ARUN MISHRA, J.]
oflaw and complying with the principles of natural justice. A
Therefore, even independently of Rule 3( I )(i) and (iii) of
the Rules, such fraudulently obtained appointment orders
could be legitimately treated as voidable at the option of the
employer and could be recalled by the employer and in such
cases merely because the respondent-employees have
B
continued in service for a number of years on the basis of
such fraudulently obtained employment orders cannot create
any equity in their favour or any estoppel against th~
employer. Jn this connection we may usefully refer to a
decision of this Court in Distt. Collector & Chairman,
Vizianagaram Social Welfare Residential School Society c
v. M Tripura Sundari Devi (1990) 3 SCC 655.. In that
case Sawant, J. speaking for this Court held that when an
advertisement mentions a particular qualification and an
appointment is made in disregard of the same, it is not a
matter only between the appointing authority and the
D
concerned appointee. The aggrieved are all those who had
similar or even better qualifications than the appointee or
appointees but who had not applied for the post because
they did not possess the qualifications mentioned in the
advertisement. It amounts to a fraud on public to appoint
persons with inferior qualifications in such circumstances E
unless it is clearly stated that the qualifications are relaxable.
No court should be a party to the perpetuation of the
fraudulent practice. It is of course true as noted by the
Tribunal that the facts of the case in the aforesaid decision
were different from the facts of the present case. And it is
F
also true that in that case pending the service which was
continued pursuant to the order of the Tribunal the candidate
concerned acquired the requisite qualification and hence
his appointment was not disturbed by this Court. But that is
neither here nor there. As laid down in the aforesaid decision,
if by committing fraud any employment is obtained, such a G
fraudulent practice cannot be permitted to be countenanced
by a court of law. Consequently, it must be held that the
Tribunal had committed a patent error of law in directing
reinstatement of the respondent-workmen with all
consequential benefits. The removal orders could not have
H
460 SUPREME COURT REPORTS [2016] 7 S.C.R.
A been faulted by the Tribunal as they were the result of a
sharp and fraudulent practice on the part of the respondents.
Learned counsel for the respondents, however, submitted
that these illiterate respondents were employed as casual
labourers years back in 1983 and subsequently they have
been given temporary status and, therefore, after passage
B of such a long time they should not be thrown out of
employment. It is difficult to agree with this contention. By
mere passage of time a fraudulent practice would not get
any sanctity. The appellant authorities having come to know
about the fraud of the respondents in obtaining employment
c as casual labourers, started departmental proceedings years
back in 1987 and these proceedings have dragged on for a
number of years. Earlier, removal orders of the respondents
were set aside by the Central Administrative Tribunal,
Madras Bench and proceedings were remanded and after
remand, fresh removal orders were passed by the appellant
D
which have been set aside by the Central Administrative
Tribunal, Ernakulam Bench and which arc the subject-matter
of the present proceedings. Therefore, it cannot be said
that the appellants are estopped from recalling such
fraudulently obtained employment orders of the respondents
E subject of course to following due procedure of law and in
due compliance with the principles of natural justice, on
which aspect there is no dispute between the parties. If
any lenient view is taken on the facts of the present case in
favour of the respondents, then it would amount to putting
premium on dishonesty and sharp practice which on the
F
facts of the present cases cannot be permitted."
It is apparent from the aforesaid discussion that the case of M.
Bhaskaran (supra) did not relate at all to the suppression of material
facts or submitting false infonnation but pe1tained to obtaining employment
on the basis of forged or bogus casual labourer service cards. The
G decision in M. Bhaskaran (supra) is quite distinguishable. It has a
different field to operate. Though the principles laid down therein may
be attracted to some extent in a given case in a particular factual scenario
but are not of general application in the cases in which the question
involvec1 is with which we are presently dealing with.
H
A VTAR SINGH v. UNION OF INDIA & ORS. 461
[ARUN MISHRA, J.]
6. The next decision mentioned by the Division Bench in the order A
of reference is in Delhi Administration through its Chief Secretary &
Ors. v. Sushi/ Kumar ( 1996) 11 SCC 605 in which appointment was
denied to an incumbent who was duly selected for the post of Constable
in Pol ice service subject to verification of character and antecedents.
On verification of his antecedents it was found that he was involved in a
B
criminal case under sections 304, 324/34 and 324 IPC. The incumbent
was appointed in Delhi Police service in the year 1990. On character
verification, his name was rejected. The tribunal allowed the application
and directed the appointment since employee had been acquitted in the
said criminal case. It was held by this Court that mere acquittal in the
criminal case was not enough once it was found that it was not desirable c
to appoint such a person as a Constable in the disciplined force. This
Court opined that the view taken by the employer in the background of
the case cannot be said to be unwarranted, though he was discharged or
acquitted. Antecedents of the incumbents could not be said to be proper.
The Court has held thus :
D
"3. This appeal by special leave arises from the order of
the Central Administrative Tribunal, New Delhi made on 6-
9-1995 in OA No. 1756of1991. The admitted position is
that the respondent appeared for recruitment as a Constable
in Delhi Police Services in the year 1989-90 with Roll No.
65790. Though he was found physically fit through
E
endurance test, written test and interview and was selected
provisionally, his selection was subject to verification of
character and antecedents by the local police. On
verification, it was found that his antecedents were such
that his appointment to the post of Constable was not found F
desirable. Accordingly, his name was rejected. Aggrieved
by proceedings dated 18-12-1990 culminating in cancellation
of his provisional selection, he tiled OA in the Central
Administrative Tribunal. The Tribunal in the impugned order
allowed the application on the ground that since the
respondent had been discharged and/or acquitted of the G
offence punishable under Section 304 IPC, under Section
324 read with Section 34 !PC and under Section 324 IPC,
he cannot be denied the right of appointment to the post
under the State. The question is whether the view taken by
H
462 SUPREME COURT REPORTS [2016) 7 S.C.R.
A the Tribunal is correct in law? It is seen that verification of
the character and antecedents is one of the important criteria
to test whether the selected candidate is suitable to a post
under the State. Though he was found physically fit, passed
the written test and interview and was provisionally selected,
on account of his antecedent record, the appointing authority
B
found it not desirable to appoint a person of such record as
a Constable to the disciplined force. The view taken by the ·
appointing authority in the background of the case cannot
be said to be unwarranted. The Tribunal, therefore, was
wholly unjustified in giving the direction for reconsideration
c of his case. Though he was discharged or acquitted of the
criminal offences, the same has nothing to do with the
question. What would be relevant is the conduct or character
of the candidate to be appointed to a service and not the
actual result thereof. If the actual result happened to be in
a particular way, the law will take care of the consequences.
D
The consideration relevant to the case is of the antecedents
of the candidate. Appointing authority, therefore, has rightly
focussed this aspect and found it not desirable to appoint
him to the service."
It is apparent that the background of the case was considered by
E the employer in the case of Sushi! Kumar (supra) and this Court has
emphasized in the aforesaid background that the decision of the employer
was not unwarranted as the incumbent was rightly not found desirable
for appointment to the service. It was not a case of suppression in the
verification form. The decision does not deal with the effect of
F suppression but the case has turned on the background of the facts of
the case in which the incumbent was involved as is apparent from the
discussion made by this Court in para 3 quoted above. Thus, it is apparent
that the background facts of the case have to be taken into consideration
by the employer or court while dealing with such matters.
G 7. Another· decision of this Court which has been noted in the
order is Commissioner of Police, Delhi & Am: ii Dhaval Singh ( 1999)
1 SCC 246. It was a case pertaining to the verification or antecedents
fonn in August, 1995 in which pendency of criminal case was not
mentioned but it was disclosed on 15.11.1995. An application was
submitted mentioning that he had inadvertently failed to mention in the
H
AVTAR SINGH v. UNION OF INDIA & ORS. 463
[ARUN MISHRA, J.]
appropriate column regarding the pendency of the criminal case and the A
latter may be treated as an information despite such disclosure before
passing an order of cancellation of candidature, was not taken into
consideration by the concerned employer. This Court has held that
cancellation of the candidature ofDhaval Singh was not appropriate. It
was without proper application of mind and without taking into
B
consideration all relevant material. The tribunal has therefore rightly set
it aside. This Court has laid down thus:
"5. That there was an omission on the part of the respondent
to give information against the relevant column in the
Application Form about the pendency of the criminal case,
is not in dispute. The respondent, however, voluntarily
c
conveyed it on 15-11-1995 to the appellant that he had
·inadvertently failed to mention in the appropriate column
regarding the pendency of the criminal case against him
and that his letter may be treated as "information". Despite
receipt of this communication, the candidature of the D
respondent was cancelled. A perusal of the order of the
Deputy Commissioner of Police cancelling the candidature
on 20-11-1995 shows that the information conveyed by the
respondent on 15-11-1995 was not taken note of. It was
obligatory on the part of the appellant to have considered
that application and apply its mind to the stand of the E
respondent that he had made an inadvertent mistake before
passing the order. That, however, was not done. It is not as
if information was given by the respondent regarding the
inadvertent mistake committed by him after he had been
acquitted by the trial court- it was much before that. It is F
also obvious that the infonnation was conveyed voluntarily.
In vain, have we searched through the order of the Deputy
Commissioner of Police and the other record for any
observation relating to the information conveyed by the
respondent on 15-11-1995 and whether that application cou Id
not be treated as curing the defect which had occurred in G
the Form. We are not told as to how that communication
was disposed of either. Did the competent authority ever
have a look at it, before passing the order of cancellation of
candidature? The cancellation of the candidature under the
H
464 SUPREME COURT REPORTS [2016] 7 S.C.R.
A circumstances was without any proper application of mind
and without taking into consideration all relevant material.
The Tribunal, therefore, rightly set it aside. We uphold the
order of the Tribunal, though for slightly different reasons,
as mentioned above."
B 8. In Regional Manager, Bank of Baroda v. Presiding Officer,
Central Govt. Industrial Tribunal & Anr. ( 1999) 2 SCC 24 7, the
respondent employee secured the appointment on a clerical post
concealing information of criminal prosecution under section 307 IPC.
Subsequent to his appointment, he was convicted by the criminal court.
After one year of the conviction, Bank issued a show cause notice against
c the proposed termination of his service and for pendency of criminal
prosecution. After about one and a half years, second show-cause notice
was issued and after 1 year 8 months, the order of termination of services
was passed. In the appeal the employee was acquitted. This Court did
not interfere under Article 136 ofihe Constitution in the decision of the
D tribunal. In the facts of the case, directing reinstatement as punishment
was found by the Labour Court to be an extreme punishment and not
warranted due to acquittal in the criminal case. At the same time, it was
made clear that the decision was rendered on the peculiar facts of the
case and will not be treated as a precedent in future. This Court has
discussed the matter thus :
E
"!:I. The facts which are well established on record and
which have weighed with us for coming to the aforesaid
conclusion may now be noted. It is true that the respondent
made a wrong statement while replying to Query 27 of the
application form that he had not been prosecuted at any
F time. It is equally true that the Labour Cou11 itself found
that giving a false statement should not be deemed to be
such a grave misconduct which may be visited with extreme
punishment of termination from service. However, it has
also to be noted that the appellant-Management while
G issuing show-cause notice for the first time on 26-2-1980
has in tenns noted in the said notice that not only the criminal
proceedings were pending but had ultimately ended in
conviction of the respondent. The appellant itself thought it
fit to await the decision of the criminal case before taking
any precipitate action against the respondent for his
H
AVTAR SINGH v. UNION OF INDIA & ORS. 465
[ARUN MISHRA, J.]
misconduct. Thus, according to the respondent, this A
suppression was not so grave as to immediately require the
appellant to remove the respondent from service. On the
contrary, in its wisdom, the appellant thought it fit to await ·
the decision of the criminal proceedings. This may be
presumably so because the charge against the respondent
B
was that he was alleged to have involved himself in an
offence under Section 307 of the Indian Penal Code. It
was not an offence involving cheating or misappropriation
which would have a direct impact on the decision of the
appointing Bank whether to employ such a person at all.
We may not delve further into the liberal approach of the c
appellant itself when it did not think it fit to immediately
take action against the respondent but wait till the decision
of the criminal case. Be that as it may, once the Sessions
Court convicted the respondent, the appellant issued the
impugned notice dated 26-2-1980. It can therefore be safely
D
presumed that ifthe Sessions Court itself had acquitted the
respondent, the appellant would not have decided to
terminate his services on this ground. So far as the notice
dated 26-2-1980 is concerned, in the reply to the said show.
cause notice filed by the respondent, he had mentioned that
an appeal was pending in the High Court against the said E
conviction. In that view of the matter, once the High Court
ultimately acquitted the respondent for any reason, with
which strictly we are not concerned, the net result that
follows is that by the time the Labour Court decided the
matter, the respondent was already acquitted and hence
F
there remained no real occasion for the appellant to pursue
the termination order. Consequently, that was a sufficient
ground for not visiting the respondent with the extreme
punishment of termination of service. But even that apart,
though the conviction was rendered by the Sessions Court
on 20-2-1979, the show-cause notice for the first time was G
issued by the appellant after one year, i.e., on 26-2-1980
and thereafter, the termination order was passed on 18-4-
1983. That itself by the passage oftime, created a situation
wherein the original suppression of involvement of the
respondent in the prosecution for an offence under Section ·
H
466 SUPREME COURT REPORTS [2016) 7 S.C.R.
A 307 of the Indian Penal Code did not remain so pernicious
a misconduct on his part as to visit him with the grave
punishment of termination from service on these peculiar
facts of the case and especially when the Labour Court
also did not award any back wages to the respondent from
1983 till the respondent's reinstatement by its order dated
B
29-9-1995 and one month thereafter and when the High
Court also did not think it fit to interfere under Article 226
of the Constitution of India on the peculiar facts of this
case. In our opinion, the interest ofjustice will be served by
maintaining the order passed by the Labour Court and as
c con finned by the High Court subject to a slight modification
that the respondent may be treated to be a fresh recruit
from the date when he was exonerated by the High Court,
i.e., from 13-1-1988 which can be treated as 1-1-1988 for
,.._ the sake of convenience. It is ordered accordingly. From 1-
1-1988, the respondent will be treated to have been
D
reinstated into the services of the Bank on the basis that he
will be treated as a fresh recruit from that date and will be
entitled to be placed at the bottom of the revised scale of
pay for.Clerks and will also be entitled to other allowances
which were available in the cadre of Clerks in the Bank's
E service. The respondent will be entitled to back wages with
effect from 1-11-1995, i.e., from the date when the Labour
Court awarded the reinstatement of the respondent. It also
directed that the appellant-Bank will work out appropriate
back wages payable to. the respondent from 1-11-1995 in
the time-scale of Clerks as available from 1-1-1988, treating
F
his services to be continuous from that date and accordingly,
working out of his salary and emoluments on a notional
b<Jsis with the usual increments from 1-1-1988 and the actual
arrears of pay and other permissible emoluments from I-
11-1995 till reinstatement of the respondent by the appellant.
G All such arrears will be paid to the respondent within a
period of four weeks from 1-3-1999. The respondent who
is present before us takes notice of this order and his counsel
on his instructions states that the respondent will report for
duty pursuant to the present order before the Regional
Manager, Bank of Baroda, Northern Zone, Meerut on 1-3-
H
AVTAR SINGH v. UNION OF INDIA & ORS. 467
[ARUN MISHRA, J.]
I 999. Learned counsel for the appellant agrees to the said A
course being adopted. The appeal will stand dismissed
subject to the aforesaid modifications. IA No. 2 for passing
order under Section 17-B of the Industrial Disputes Act,
J94 7 will not survive in view of the present order. We make
it clear that this order of ours is rendered on the peculiar
B
facts and circumstances of the case as mentioned earlier
and will not be treated as a precedent in future. There would
be no order as to costs."
The Court has taken note of the fact that it was not an offence
involving cheating or misappropriation which would have direct impact
on the decision of the appointing Bank. By the time the Labour Court c
decided the matter the employee was acquitted by the High Court. The
passage of time created a situation wherein the original suppression or
involvement of the respondent in the prosecution for an offence under
section 307 IPC did not remain so pernicious or misconduct to visit him
punishment of termination. In the peculiar facts this Court has not D
interfered but at the same time laid down that the decision would not be
treakd as a precedent in future.
9. In Kendriya Vidyalaya Sa11gatha11 & Ors. v. Ram Rotan
Yadav (2003) 3 SCC 43 7, a question arose as to suppression of material
information relating to character and antecedents. In clause 4 of the E
offer of appointment offered to Physical Education Teacher, it was
mentioned that suppression of any information will be considered a major
offence for which the punishment may extend to dismissal from service.
Suppression of information was held to be material as a criminal case
under sections 323, 341, 294, 506-B read with section 34 IPC was pending
on the date when the respondent filled the attestation form. This Court F
has observed that suppression of material information or making a false
statement has a clear bearing on the character and antecedents in relation
to his continuance in service. It was also held that mere fact that the
case was withdrawn by the State Government was not much material.
This Court has discussed the matter thus : G
"10. The memorandum dated 7-4-1999/8-4-1999 terminating
the services of the respondent refers to columns 12 and 13
of the attestation form, the criminal case registered against
the respondent on the basis of the report given to the
appellants by IG, Pol ice, suppression of material information H
468 SUPREME COURT REPORTS [2016] 7 S.C.R.
A by the respondent while submitting attestation form and
violating the clause stipulated under para 9 of the offer of
arpointment issued to him, OM dated 1-7-1971 of the
Cabinet Secretary, Department of Personnel, New Delhi,
in which it is clearly mentioned that furnishing of false
information or suppression of factual information in the
B
attestation form would be disqualification and is likely to
render the candidate unfit for employment under the
Government and that as per clause 4 of the offer of
appointment, the respondent was on probation for a period
of two years and that his services were liable to be
c terminated by one month's notice.
11. It is not in dispute that a criminal case registered under
Sections 323, 341, 294, 506-B read with Section 34 IPC
w'.ls pending on the date when the respondent fi lied the
attestation form. Hence, the information given by the
D respondent as against columns 12 and 13 as "No" is plainly
suppression of material information and it is also a false
statement. Admittedly, the respondent is holder of BA, BEd
and MEd degrees. Assuming even his medium of instruction
was Hindi throughout, no prudent man can accept that he
did not study English language at all at any stage of his
E education. It is also not the case of the respondent that he
did not study English at all. If he could understand columns
1-11 correctly in the same attestation form, it is difficult to
accept his version that he could not correctly understand
the contents of columns 12 and 13. Even otherwise, ifhe
F could not correctly understand certain English words, in the
ordinary course he could have certainly taken the help of
somebody. This being the position, the Tribunal was right in
rejecting the contention of the respondent and the High
Court committed a manifest error in accepting the
contention that because the medium of instruction of the
G respondent was Hindi, he could not understand the contents
of columns 12 and 13. It is not the case that columns 12
and 13 are left blank. The respondent could not have said
"No" as against columns 12 and 13 without understanding
the contents. Subsequent withdrawal of criminal case
H
AVTAR SINGH v. UNION OF INDIA & ORS. 469
[ARUN MISHRA, J.]
registered against the respondent or the nature of offences, A
in our opinion, were not material. The requirement offilling
columns 12 and 13 of the attestation form was for the
purpose of verification of character and antecedents
of the respondent as on the date offilling and attestation
of the form. Suppression of material information and
B
making a false statement has a clear bearing on the
character and antecedents of the respondent in relation
to his continuance in service. ·
12. The object of requiring information in columns 12 and
13 of the attestation form and certification thereafter by
the candidate was to ascertain and verify the character
c
and antecedents to judge his suitability to continue in service.
A candidate having suppressed material information and/or
giving false information cannot claim right to continue in
service. The employer havjng regard to the nature of the
employment and all other aspects had the discretion to D
terminate his services, which is made expressly clear in
para 9 of the offer ofappointment. The purpose ofseeking
information as per columns 12 and 13 was not to find
out either the nature or gravity of the offence or the
result of a criminal case ultimately. The information in
the said columns was sought with a view to judge the E
character and antecedents ofthe respondent to continue
in service or not. The High Court, in our view, has failed
to see this aspect of the matter. It went wrong in saying
that the criminal case had been subsequently withdrawn
and that the offences, in which the respondent was alleged F
to have been involved, were also not of serious nature. In
the present case the respondent was to serve as a Physical
Education Teacher in Kendriya Vidyalaya. The character,
conduct and antecedents of a teacher wil I have some impact
on the minds of the students of impressionable age. The
appellants having considered all the aspects passed the order G
of dismissal of the respondent from service. The Tribunal
after due consideration rightly recorded a finding of fact in
upholding the order of dismissal passed by the appellants.
The High Court was clearly in error in upsetting the order
H
470 SUPREME COURT REPORTS [2016] 7 S.C.R.
A of the Tribunal. The High Court was again not right in taking
note of the withdrawal of the case by the State Government
and that the case was not of a serious nature to set aside
the order of the Tribunal on that ground as well. The
respondent accepted the offer of appointment subject to
the terms and conditions mentionedJherein with his eyes
B
wide open. Para 9 of the said memorandum extracted above
in clear terms kept the respondent informed that the
suppression of any information may lead to dismissal from
service. In the attestation form, the respondent has certified
that the information given by him is correct and complete
c to the best of his knowledge and belief; if he could not
understand the contents of columns 12 and 13, he could not
certify so. Having certified that the information given by
him is correct and complete, his version cannot be accepted.
The order of termination of services clearly shows that there
has been due consideration of various aspects. In this view,
D
the argument of the learned counsel for the respondent that
as per para 9 of the memorandum, the termination of service
was not automatic, cannot be accepted."
It is clear from the decision in Ram Rata11 Yadav (supra) that
besides considering the effect of suppression, this Court has observed
E that having regard to the nature of employment and various aspects, the
employer has the discretion to terminate his services as provided in the
order of appointment. It was also held that the involvement in the criminal
case would have some impact on the minds of students of impressionable
age. This Court has further observed that the order of termination of
F service shows that there had been due consideration of various aspects
by the concerned authority while passing the order of termination. It is
clear from the decision in Ram Rata11 (supra) also that there is a discretion
with the employer to terminate the services. Character, conduct .and
antecedents do have some impact on the nature of employment and
there has to be due consideration ofvarious aspects. Thus, it follows
G that merely because there is a power to terminate services or cancellation
of offer of appointment, it does not follow that the person should be
removed outrightly. Various aspects have to be considered and the
discretion so used should not be arbitrary or fanciful. It has to be guided
on certain principles for which purpose verification is sought.
H
AVTAR SINGH v. UNION OF INDIA & ORS. 471
[ARUN MISHRA, J.]
I 0. In Secretary, Department of Home Secy., A.P. & Ors. v. B. A
Chinnam Naidu (2005) 2 SCC 746, the case pertained to suppression
of material information and/or giving false information in the attestation
form. In the attestation form the respondent had not mentioned about his
arrest and pendency of a case against him. The tribunal held that the
employee had suppressed material information while filling up the
B
attestation form and upheld the order of termination. The High Court set
aside the order of the tribunal holding that the employer was not justified
in denying appointment to the respondent. This Court has noted that as
per the relevant column of the attestation fonn the candidate was required
to indicate whether he had ever been convicted by a court of law or
detained under any State/Central preventive detention laws. He was not c
required to indicate whether he had been arrested in any case or any
case was pending against him. In view of the relevant column in the
fom1 it could not be said that the respondent had made false declaration
or had suppressed material information. As such this Court held that the
action ofthe employer in not permitting the respondent to join the training
D
due to suppression of truth in the attestation form, was not sustainable.
This Court observed that the requirement in the present case was
"conviction" and not "prosecution". This Court has held thus:
"8. In order to appreciate the rival submissions it is necessary
to take note of column 12 of the attestation form and column
3 of the declaration. The relevant portions are quoted below: E
"Column 12.-Have you ever been convicted by a court
, of law or detained under any State/Central preventive
detention laws for any offence whether such conviction
sustained in court of appeal or set aside by the appellate
court ifappealed against." F
"Column 3.-1 am fully aware that furnishing of false
information or suppression of any actual information in the
attestation form would be a disqualification and is likely to
render me unfit for employment under the Government.
G
9. A bare perusal of the extracted portions shows that the
candidate is required to indicate as to whether he has ever
been convicted by a court of law or detained under any
State/Central preventive detention laws for any offences
whether such conviction is sustained or set aside by the
H
472 SUPREME COURT REPORTS [2016] 7 S.C.R.
A appellate court, if appealed against. The candidate is not
required to indicate as to whether he had been arrested in
any case or as to whether any case was pending. Conviction
by a court or detention under any State/Central preventive
detention laws is different from arrest in any case or
pendency of a case. By answering that the respondent had
B
not been convicted or detained under preventive detention
laws it cannot be said that he had suppressed any material
fact or had furnished any false information or suppressed
any information in the attestation form to incur
disqualification. The State Government and the Tribunal
c appeared to have proceeded on the basis that the respondent
ought to have indicated the fact of arrest or pendency of
the case, though column 12 of the attestation form did not
require such information being furnished. The learned
counsel for the appellants submitted that such a requirement
has to be read into an attestation form. We find no reason
D
to accept such contention. There was no specific
requirement to mention as to whether any case is pending
or whether the applicant had been arrested. In view of the
specific language so far as column 12 is concerned the
respondent cannot be found guilty of any suppression."
E
11. This Court in R. Radhakrishnan v. Director General of
Police & Ors. (2008) I SCC 660 considered a case where the appellant
intended to obtain appointment in police force. Application for appointment
and the verification roll were both in Hindi and also in English. The
application was filed for appointmentto the post ofa Fireman on 5.1.2000.
F He was involved in the criminal case which occurred on 15.4.2000 under
section 294(b) IPC. He was released on bail and was acquitted of the
said charge on 25.9.2000. However his services were dispensed with
on the ground of suppression of pendency of the criminal case. This
Court upheld the order and had held thus :
G "10. Indisputably, the appellant intended to obtain
appointment in a uniformed service. The standard expected
of a person intended to serve in such a service is different
from the one of a person who intended to serve in other
services. Application for appointment and the verification
roll were both in Hindi as also in English. He, therefore,
H
AVTAR SINGH v. UNION OF INDIA & ORS. 473
[ARUN MISHRA, J.]
knew and understood the implication of his statement or A
omission to disclose a vital infonnation. The fact that in the
event such a disclosure had been made, the authority could
have verified his character as also suitability Of the
appointment is not in dispute. It is also not in dispute that
the persons who had not made such disclosures and were,
B
thus, similarly situated had not been appointed."
In R. Radhakrishnan (supra) this Court had taken note of the
decision in Sushi/ Kumar (supra) in which the background facts of the
case in which the employee was involved were considered, and the
antecedents were not found good.
c
12. In Union of India & Ors. v. Bipad Bhanjan Gayen (2008)
11 sec 314, the facts indicate that the respondent was selected for
training as a Constable in Railway Protection Force, and pending
verification of Form 12, he was sent for training. It was found on
verification that he had been involved in FIR 20/I 993 for an offence
punishable under section 376 IPC and another case under section 417 D
was pending in the court. On 10.7.1995 his services were tenninated
with immediate effect because of his involvement in the police case and
suppression offactual information in the attestation fonn by the candidate.
It was an admitted fact that two prosecutions were pending on the date
when he filled in the forn1. The employee was under probation at the E
time of termination of his service. This Court has held thus:
"8. We have heard the learned counsel for the parties and
gone through the record. Rule 57 of the Rules provides for
a probati9n period of2 years from the date of appointment
subject to extension. Rule 67 provides that a direct recruit F
selected for appointment as an enrolled member ofthe Force
is liable to be discharged at any stage ifthe Chief Security
Officer, for reasons to be recorded in writing, deems it fit
to do so in the interest of the Force till such time as the
recruit is not formally appointed to the Force. A reading of
these two rules would reveal that till a recruit is fonnally G
enrolled to the Force his appointment is extremely tenuous.
9. Jt is the admitted case that the respondent was still under
probation at the time his services had been tenninated. It is
also apparent from the record that the respondent had been
H
474 · SUPREME COURT REPORTS [2016] 7 S.C.R.
A given appointment on probation subject to verification of
the facts given in the attestation form. To our mind, therefore,
if an enquiry revealed that the facts given were wrong, the
appellant was at liberty to dispense with the services of the
respondent as the question of any stigma and penal
consequences at this stage would not arise.
B
10. It bears repetition that what has led to the termination
of service of the respondent is not his involvement in the
two cases which were then pending, and in which he had
been discharged subsequently, but the fact that he had
withheld relevant information while filling in the attestation
c form. We are further of the opinion that an employment as
a police officer pre-supposes a higher level of integrity as
such a person is expected to uphold the law, and on the
contrary, such a service born in deceit and subterfuge cannot
be tolerated."
D The fact remains that this Court in Bipad Bha11ja11 Gayen (supra),
the case in which the offence involved was with respect to commission
of rape under section 376 and cheating under section 417. The case
involved moral turpitude, as such suppression was material as that would
have clear impact on the antecedents and suitability of an incumbent for
E being appointed in the service. Thus the suppression was material and
was such that the employer could have safely taken the view to terminate
the services. Such an incumbent cannot be said to have any equity to
seek employment till he is given a clean chit by the courts oflaw and his
antecedents are otherwise found to be good besides the acquittal.
F 13. In A.P. Public Service Co111111issio11 v. Koneti Venkateswarulu
& Ors. (2005) 7 SCC 177 there was suppression of the information
regarding the employment and the explanation offered that he
inadvertently filled the form was not accepted.
14. In Kamal Nayan Mishra v. State of Madhya Pradesh &
G Ors. (20 I 0) 2 SCC 169, this Court has considered the question of dismissal
of a confirmed employee without any inquiry or opportunity to show
cause on the basis that he had furnished incorrect/false information in
his personal attestation form. This Court held that such misdemeanor
would be treated as a misconduct and punishment can be imposed only
after subjecting the employee to appropriate disciplinary proceedings as
H
AVTAR SINGH v. UNION OF INDIA & ORS. 475
[ARUN MISHRA, J.]
per the relevant service rules. Besides, the attestation was required to A
be furnished after 14 years of the service, and even after detection of
the suppression, the authorities waited for 7 Jong years which indicated
that the Department assumed that such misconduct did not call for any
disciplinary or punitive action. Thus the belated decision which was taken
to terminate his service sans enquiry was adjudged to be illegal and
B
violative of protection conferred under Article 311 (2) of the Constitution.
This Court in Kamal Nayan Mishra (supra) has held that the decision
in Ram Ratan (supra) was with respect to a probationer. It was not laid
down in the said decision that services of a confirmed employee holding
a civil post under the State, could be terminated for furnishing false
infonnation in the attestation form, without giving him an opportunity to c
meet the charges against him, as such the termination was void. This
Court held thus :
"9. On the contentions urged, two questions arise for
consideration:
(i) Whether the ratio decidendi of the decision in Ram Ratan D
Yadav (2003) 3 SCC 437 apply to this case? Does it hold
that the State Government could dismiss or remove the
holder of a civil post, without any enquiry or opportunity to
show cause, once it is found that he has given incorrect/
false information in the personal attestation form? E
(ii) Whether the termination of the appellant is valid?"
xxxxx
"18. There are also several other features in this case which
distinguish it from Ram Ratan Yadav (2003) 3 SCC 437.
F
First is that Ram Ratan Yadav (supra) related to an employee
of Kendriya Vidyalaya Sangathan, who did not have the
protection ofArticle 311 ofthe Constitution of India, whereas
in this case we are concerned with a government servant
protected by Article 311. Second is that the attestation form
in this case, was required to be furnished by the employee, G
not when he was appointed, but after fourteen years of
service. The third is that while action was promptly taken
against the probationer in Ram Ratan Yadav, within the
period of probation, in this case even after knowing thatthe
appellant had furnished wrong information, the respondents
H
476 SUPREME COURT REPORTS [2016] 7 S.C.R.
A did not take any action for seven long years, which indicated
that the Department proceeded for a long time on the
assumption that the wrong information did not call for any
disciplinary or punitive action. The belated decision to
terminate him, seven years later was unjustified and violative
ofArticle 3 11.
B
19. If the appellant had been issued a charge-sheet or a
show-cause notice he would have had an opportunity to
explain the reason for answering the queries in Column 12
in the manner he did. He could have explained that he did
not understand the queries properly and that he was
c instructed to furnish the information as on the date of
appointment. In fact his contention that he was required to
answer the queries in Column 12 with reference to the date
of his appointment, finds support from the termination order,
which says that the appellant was terminated for giving
D wrong information and concealment of facts in the
attestation from at the time of initial re<;:ruitmem. This
clearly implies that he was expected to reply the queries in
Column 12 with reference to his initial appointment, even
though Clauses 12(b) and (c) of the form stated that the
infonnation should be as on the date of signing of the
E attestation form. The explanations given by the appellant,
would have certainly made a difference to the finding on
guilt and the punishment to be imposed. But he could not
give the said explanations as there was no show-cause notice
or enquiry. The termination order is also unsustainable, as
F the statement therein that the appellant had given wrong
information and concealed the facts at the time of initial
recruitment, is erroneous.
20. The learned counsel for'the respondents drew our
attention to the instnictions to the employees in the preamble
G to the attestation form and the undertaking contained in the
verification certificate by the employee at the end of the
attestation form, which puts him on notice that any false
infommtion could result in tennination of his service without
enquiry. It is contended that as the attestation form stated
that an employee could be terminated without notice, if he
H
AVTAR SINGH v. UNION OF INDIA & ORS. 477
[ARUN MISHRA, J.]
furnishes false information, the employee is estopped from A
objecting to termination without notice. The said contention
may merit acceptance in the case of a probationer, but not
in the case of a confirmed government servant.
21. No term in the attestation form, nor any consent given
by a government servant, can take away the-constitutional B
safeguard provided to a government servant under Article
3 ll of the Constitution.
xxxxx
23. We also find from an examination of the terms of the
attestation form that termination without notice or inquiry c
was contemplated only in the context of furnishing false
information in and around the time of the appointment. Note
(I) of the preamble warns that:
"the furnishing of false information or suppression of any
factual information in the attestation form would be a D
disqualification and is likely to render the candidate unfit
for employment".
Similarly, the certificate at the end of the attestation form
states that:
E
"I am not aware of any circumstances which might impair
my fitness for employment under the Government. I agree
that if the above infonnation is found false or incomplete in
any material respect, the appointing authority will have a
right to terminate my services without giving notice or
showing cause." F
Be that as it may.
xxxxx
25. We have already pointed out that there are clear
indications that the appellant was bona fide under the G
impression that he was required to give the particulars sought
in Column 12 of the form with reference to the date of his
appointment. Further, the entire matter relates to an
attestation form given in 1994 and the appellant has already
been out of service for more than seven years on account
H
478 SUPREME COURT REPORTS [2016] 7 S.C.R.
A of the illegal tennination from service without an inquiry on
7-3-2002. We are therefore of the view that the interests
ofjustice would be served if the appellant is reinstated with
continuity of service and other consequential benefits,
dispensing with any further disciplinary action. The appellant
will not be entitled to any salary for the period 7-3-2002 till
B
today."
In Kamal Nayan Mishra (supra), this Court has considered various
aspects while holding termination order for Kamal Nayan Mishra on
the ground of suppression of information was bad in law. The employer
has to take into consideration various aspects and a blanket order of
c tennination of services cannot be passed on the basis of mere enabling
clause in the verification form to do so.
15. In Daya Shankar Yadav v. Union of India & Ors. (20 I0)
14 sec 103 on consideration of various aspects as to ambiguities in the
verification form, this Court observed that the purpose of seeking the
D infonnation is to ascertain the character and antecedents of the candidate
so as to assess the suitability for the post. Therefore the candidate will
have to answer the questions truthfully and fully and any misrepresentation
or suppression or false statementtherein, by itself would demonstrate a
conduct or character unbefitting for a uniformed police force. This Court
E has observed various consequences which may arise due to character
and antecedents verification thus :
"14. Rule 14 of the Central Reserve Police Force Rules,
1955 relevant in this case relates to verification. Clauses
(a) and (b) of the said Rule are extracted below:
F "14. Verificlltion.-(a) As soon as a man is enrolled, his
character, antecedents, connections and age shall be verified
in accordance with the procedure prescribed by the Central
Government from time to time. The verification roll shall
be sent to the District Magistrate or Deputy Commissioner
G of the District of which the recruit is a resident.
(b) The verification roll shall be in CRP Form 25 and after
verification shall be attached to the character and service
roll of the member of the force concerned."
The purpose of seeking the said information is to ascertain
H
AVTAR SINGH v. UNION OF INDIA & ORS. 479
[A.RUN MISHRA, J.]
the character and antecedents of the candidate so as to A
assess his suitability for the post. Therefore, the candidate
will have to answer the questions in these columns truthfully
and fully and any misrepresentation or suppression or false
statement therein, by itself would demonstrate a conduct
or character unbefitting for a uniformed security service.
B
15. When an employee or a prospective employee declares
in a verification form, answers to the queries relating to
character and antecedents, the verification thereof can
therefore lead to any of the following consequences: c
(a) If the declarant has answered the questions in the
affirmative and furnished the details of any criminal case
(wherein he was convicted or acquitted by giving benefit
of doubt for want of evidence), the employer may refuse to
offer him employment (or if already employed on probation, D
discharge him from service), ifhe is found to be unfit having
regard to the nature and gravity of the offence/crime in
which he was involved.
(b) On the other hand, if the employer finds that the criminal
case disclosed by the declarant related to offences which E
were technical, or of a nature that would not affect the
declarant's fitness for employment, or where the declarant
had been honourably acquitted and exonerated, the employer
may ignore the fact that the declarant had been prosecuted
in a criminal case and proceed to appoint him or continue
him in employment. F
(c) Where the declarant has answered the questions in the
negative and on verification it is found that the answers
were false, the employer may refuse to employ the declarant
(or discharge him, if already employed), even ifthe declarant
had been cleared of the charges or is acquitted. This is G
because when there is suppression or non-disclosure of
material information bearing on his character, that itself
becomes a reason for not employing the declarant.
(d) Where the attestation form or verification form does
H
480 SUPREME COURT REPORTS [2016] 7 S.C.R.
A not contain proper or adequate queries requiring the declarant
to disclose his involvement in any criminal proceedings, or
where the candidate was unaware of initiation of criminal
proceedings when he gave the declarations in the verification
roll/attestation form, then the candidate cannot be found
fault with, fornot furnishing the relevant information. But if
B
the employer by other means (say police verification or
complaints, etc.) learns about the involvement of the
declarant, the employer can have recourse to courses (a)
or (b) above.
16. Thus an employee on probation can be discharged from
c service or a prospective employee may be refused
employment: (i) on the ground ofunsatisfactory antecedents
and character, disclosed from his conviction in a criminal
case, or his involvement in a criminal offence (even ifhe
was acquitted on technical grounds or by giving benefit of
D doubt) or other conduct (like copying in examination) or
rustication or suspension or debarment from college, etc.;
and (ii) on the ground of suppression of material information
or making false statement in reply to queries relating to
prosecution or conviction for a criminal offence (even ifhe
was ultimately acquitted in the criminal case). This ground
E is distinct from the ground of previous antecedents and
character, as it shows a current dubious conduct and
absence of character at the time of making the declaration,
thereby making him unsuitable for the post."
16. This Court has also held that query in verification form has to
F be very clear, specific and unambiguous. This Court has observed thus :
"21. lfthe object of the query is to ascertain the antecedents
and character of the candidate to consider his fitness and
suitability for employment, and if the consequence of a
wrong answer can be rejection of his application for
G appointment, or termination from service if already
appointed, the least that is expected of the employer is to
ensure that the query was clear, specific and unambiguous.
Obviously, the employer cannot dismiss/discharge/terminate
an employee, for misunderstanding a vague and complex
H question, and giving a wrong answer. We do hope that
AVTAR SINGH v. UNION OF INDIA & ORS. 481
[ARUN MISHRA, J.]
CRPF and other unifonned services wi II use clear and simple A
questions and avoid any variations between the English and
Hindi versions. They may also take note of the fact that the
ambiguity and vague questions will lead to hardship and
mistakes and make the questions simple, clear and
straightforward. Be that as it may."
B
· However, on facts this Court held that the employee was not
misled and made a false statement. As such CRPF was justified in
dispensing with his services for not being truthful in giving material
infonnation.
17. In State of West Bengal & Ors. v. SK Nazrul Islam (2011) c
I 0 SCC I 84, there was concealment of fact regarding antecedents in
the verification fonn. Though Nazrul Islam was selected and found
medically fit, he concealed the fact that he was involved in a criminal
case. A chargesheet was filed and he had been granted bail. The employer
did not appoint him as a Constable. The High Court directed that the
employer could not withhold the offer of appointment and they were D
directed to issue appointment letter to the employee, subject to final
decision in the pending criminal case. This Court held that due to pendency
of the criminal case under sections 148/323/380/427/506 IPC, the High
Court had committed an illegality in issuing a direction to appoint. The
employee could not have been held suitable for appointment to the post. E
This Court has laid down thus :
"5. We have heard the learned counsel for the parties and
we fail to appreciate how when a criminal case under
Sections 148/323/380/448/427/506 IPC, against the
respondent was pending in the Court of the Additional Chief F
Judicial Magistrate, Uluberia, Howrah, any mandamus could
have been issued by the High Court to the authorities to
appoint the respondent as a constable. Surely, the authorities
entrusted with the responsibility of appointing constables
were under duty to verify the antecedents of a candidate to
find out whether he is suitable forthe post of constable and G
so long as the candidate has not been acquitted in the
criminal case of the charges under Sections 148/323/380/
448/427/506 IPC, he cannot possibly be held to be suitable
for appointment to the post of constable."
H
482 SUPREME COURT REPORTS [2016] 7 S.C.R.
A i 8. ln Co111111issio11er ofPolice & Ors. v. Sandeep Kumar (2011)
4 SCC 644, this Court considered a case where Sandeep Kumar's
candidature for the post of Constable was cancelled on the ground that
he had concealed his involvement in the criminal case under section
325/34 !PC when he was about 20 years. In para 9, this Court took note
of the character "Jean Valjean" in Victor Hugo's novel' Les Miserables'
B
in which for committing a minor offence of stealing a loaf of bread for
his hungry family, Jean Valjean was branded as a thief for whole life.
This Court also referred to the decision in Morris v. Crown Office
(1970) 2 QB 114. Relevant portion is extracted hereunder:
"8. We respectfully agree with the Delhi High Court that
c the cancellation of his candidature was illegal, but we wish
to give our own opinion in the matter. When the incident
happened the respondent must have been about 20 years
of age. At that age young people often commit indiscretions,
and such indiscretions can often be condoned. After all,
D youth will be youth. They are not expected to behave in as
mature a manner as older people. Hence, our approach
should be to condone minor indiscretions made by young
people rather than to brand them as criminals for the rest
of their lives.
E 9. In this connection, we may refer to the character "Jean
Valjean" in Victor Hugo's novel Les Miserables, in which
for committing a minor offence of stealing a loaf of bread
for his hungry family Jean Valjean was branded as a thief
for his whole life. The modem approach should be to reform
a person instead of branding him as a criminal all his life.
F
10. We may also here refer to the case of Welsh students
mentioned by Lord Denning in his book Due Process of
Law. lt appears that some students of Wales were very
enthusiastic about the Welsh language and they were upset
because the radio programmes were being broadcast in the
G English language and not in Welsh. They came up to London
and invaded the High Court. They were found guilty of
contempt of court and sentenced to prison for three months
by the High Court Judge. They filed an appeal before the
Court of Appeals. Allowing the appeal, Lord Denning
H observed:
AVTAR SINGH v. UNION OF INDIA & ORS. 483
[ARUN MISHRA, J.]
"I come now to Mr Watkin Powell's third point. He says A
that the sentences were excessive. I do not think they
were excessive, at the time they were given and in the
circumstances then existing. Here was a deliberate
interference with the course of justice in a case which
was no concern of theirs. It was necessary for the Judge
B
to show-and to show to all students everywhere-that
this kind of thing cannot be tolerated. Let students
demonstrate, if they please, for the causes in which they
believe. Let them make their protests as they will. But
they must do it by lawful means and not by unlawful. If
they strike at the course of justice in this land-and I c
speak both for England and Wales-they strike at the
roots of society itself, and they bring down that which
protects them. It is only by the maintenance of law and
order that they are privileged to be students and to study
and live in peace .. So let them support the law and not
D
strike it down.
But now what is to be done? The law has been vindicated
by the sentences which the Judge passed on Wednesday
oflast week. He has shown that law and order must be
maintained, and will be maintained. But on this appeal,
things are changed. These students here no longer defy E
the law. They have appealed to this Court and shown
respect for it.· They have already served a week in
prison. I do not think it necessary to keep them inside it
any longer. These young people are no ordinary
criminals. There is no violence, dishonesty or vice in F
them. On the contrary, there was much that we should
applaud. They wish to do all they can to preserve the
Welsh language. Well may they be proud of it. It is the
language of the bards--0fthe poets and the singers--
more melodious by far than our rough English tongue.
On high authority, it should be equal in Wales with G
English. They have done wrong-very wrong-in going
to the extreme they did. But, that having been shown, f
think we can, and should, show mercy on them. We
should permit them to go back to their studies, to their
H
484 SUPREME COURT REPORTS [2016] 7 S.C.R.
A parents and continue the good course which they have
so wrongly disturbed." (Vide Morris v. Crown Office
(1970) 2 QB 114 at p. l25C-H.
In our opinion, we should display the same wisdom as
displayed by Lord Denning.
B 11. As already observed above, youth often commits
indiscretions, which are often condoned.
12. It is true that in the application form the respondent did
not mention that he was involved in a criminal case under
Sections 325/34 IPC. Probably he did not mention this out
c of fear that if he did so he would automatically be
disqualified. At any event, it was not such a serious offence
like murder, dacoity or rape, and hence amore lenient view
should be taken in the matter."
This Court has observed that suppression related to a case when
D the age of Sandeep Kumar was about 20 years. He was young and at
such age people often commit indiscretions and such indiscretions may
often be condoned. The modern approach should be to reform a person
instead of branding him a criminal all his life. In Morris v. Crown Office
(supra), the observations made were that young people are no ordinary
E criminals. There is no violence, dishonesty or vice in thein. They were
trying to preserve the Welsh language. Though they have done wrong
but must we show mercy on them and they were permitted to go back to
their studies, to their parents and continue the good course.
19. In Ram Kumar " State of Utttar Pradesh & Ors. (20 I I) I4
F SCC 709, appointment was denied to Ram Kumar due to failure to disclose
in the verification form about a criminal case under sections 324/323/
504 IPC in which he was subsequently acquitted. This Court examined
the sustainability of the order and laid down that in terms of the instructions
in Government Order dated 28.4.1958 it was the duty of the appointing
authority to satisfy himself whether the appellant was suitable for
G appointment to the post of a Constable, with reference to nature of
suppression and nature of the criminal case. Instead thereof, the
appointing authority mechanically held that his selection was irregular
and illegal because the appellant had furnished an affidavit stating the
facts incorrectly at the time of recruitment. This Court also took note of
the facts of the case that he was acquitted subsequently and since the
H
AVTAR SINGH v. UNION OF INDIA & ORS. 485
[ARUN MISHRA, J.]
sole witness had deposed that victim was injured when he fell and hit a A
brick platform and that he was not beaten by the accused by any sharp
weapon. In view of the aforesaid it was held by this Court that the
appointing authority could not have found appellant unsuitable to the
post of Constable. Hence, the appeal was allowed and appointment of
employee was directed. However, backwages were denied for the period
B
he remained out of service. Relevant portion of the decision is extracted
below:
"9. We have carefully read the Government Order dated
28-4-1958 on the subject "Verification of the character
and antecede111s of government servants before their
first appointment" and it is stated in the government order
c
that the Governor has been pleased to lay down the following
instructions in supersession of all the previous orders:
"The rule regarding character of candidate for
appointment under the State Government shall continue
to be as follows: D
The character of a candidate for direct appointment
must be such as to render him suitable in all respects
for employment in the service orpostto which he is to
be appointed. It would be the duty of the appointing
authority to satisfy itself on this point." E
10. It will be clear from the aforesaid instructions issued
by the Governor that the object of the verification of the
character and antecedents of government servants before
their first appointment is to ensure that the character of a
government servant for a direct recruitment is such as to F
render him suitable in all respects for employment in the
service or post to which he is to be appointed and it would
be a duty of the appointing authority to satisfy itselfon this
point.
11. In the facts of the present case, we find that though G
Criminal Case No. 275 of 2001 under Sections 324/323/
504 IPC had been registered against the appellant at
Jaswant Nagar Police Station, District Etawah, admittedly
the appellant had been acquitted by order dated 18-7-2002
by the Additional Chief Judicial Magistrate, Etawah.
H
486 SUPREME COURT REPORTS [2016] 7 S.C.R.
A 12. On a reading of the order dated 18-7-2002 of the
Additional Chief Judicial Magistrate it would show that the
sole witness examined before the court, PW I, Mr Akhilesh
Kumar, had deposed before the court that on 2-12-2000 at
4.00 p.m. children were quarrelling and at that time the
appellant, Shailendra and Ajay Kumar amongst other
B
neighbours had reached there and someone from the crowd
hurled abuses and in the scuffle Akhilesh Kumar got injured
when he fell and his head hit a brick platform and that he
was not beaten by the accused persons by any sharp
weapon. In the absence of any other witness against the
c appellant, the Additional Chief Judicial Magistrate acquitted
the appellant of the charges under Sections 323/34/504 IPC.
On these facts, it was not at all possible for the appointing
authority to take a view that the appellant was not suitable
for appointment to the post of a police constable.
D 13. The order dated 18-7-2002 of the Additional Chief
Judicial Magistrate had been sent along with the report dated
15-1-2007 of Jaswant Nagar Police Station to the Senior
Superintendent of Police, Ghaziabad, but it appears from
the order dated 8-8-2007 of the Senior Superintendent of
Police, Ghaziabad, that he has not gone into the question as
E to whether the appellant was suitable for appointment to
seivice or to the post of constable in which he was appointed
and he has only held that the selection of the appellant was
illegal and irregular because he did not furnish in his affidavit
in the proforma of verification roll that a criminal case has
F been registered against him.
14. As has been stated in the instructions in the Government
Order dated 28-4-1958, it was the duty of the Senior
Superintendent of Police, Ghaziabad, as the appointing
authority, to satisfy himself on the point as to whether the
G appellant was suitable for appointment to the post of a
constable, with reference to the nature of suppression and
nature of the criminal case. Instead of considering whether
the appeHant was suitable for appointment to the post of
male constable, the appointing authority has mechanically
held that his selection was irregular and illegal because the
H
AVTAR SINGH v. UNION OF INDIA & ORS. 487
[ARUN MISHRA, J.]
appellant had furnished an affidavit stating the facts A
incorrectly at the time of recruitment."
20. When we take stock of aforesaid decisions of this Court in
nutshell it emerges that in Ramashanker Raghuvanshi (supra), this
Court has opined that activities in Jan Sangh and RSS could not be made
a ground to deprive employment. In democratic set up 'McCarthyism' is B
not healthy. Some leniency to young people cannot be ruled out. In T. S.
Vasudavan Nair (supra), a three Judges' Co-ordinate Bench of this
Court held that due to non-disclosure of conviction in a case of violation
of Defence of India Rules by shouting slogans, the cancellation of
appointment was illegal. In Dhaval Singh (supra), though pendency of
case was suppressed when verification form was filed, however, the c
information about it was furnished before cancellation of appointment
order on the ground of suppression was passed. This Court set aside the
order on the ground of non-consideration of effect of disclosure made
before order of cancellation of appointment was passed. In Sandeep
Kumar (supra), this Court in the backdrop fact of the case that offence D
suppressed was committed under section 325/34 IPC at the time when
incumbent was 20 years of age. This Court held that young people to be
dealt with leniency. They should not be deprived of appointment as
suppression did not relate to involvement in a serious case. In Ram Kumar
(supra), this Court considered a case when pending criminal case under
sections 324, 323, 504 IPC in which subsequently acquittal had been E
recorded, no overt act was attributed by sole witness to incumbent and
moreover Government instructions dated 28.4.1958 requiring authority
to consider suitability as such was not complied with, denying back wages
to incumbent, his appointment was ordered. In Regional Manager. Bank
of Baroda (supra), this Court declined to interfere under Art.136 in F
view of subsequent acquittal in a case under section 307 IPC. The decision
of Labour Court was not interfered with. Passage of time was taken
into consideration. However, this Court clarified that decision will not be
treated as precedent. In Kamal Nayan Mishra (supra), action was taken
when employee was not on probation. He had been confirmed in service
and was holding civil post, attestation was filled after 14 years of service G
and then after 7 years of that, action was taken. It was held that confirmed
employee could not have been removed in view of protection under
Art.311(2) without enquiry. Removal was held to be void. ln M
Bhaskaran (supra), it was held that when the employment was taken
on bogus and forged casual labourer service card no estoppel was created H
488 SUPREME COURT REPORTS [2016) 7 S.C.R.
A against employer by appointment and such appointment was voidable.
In Sushi! Kumar (supra), on consideration of background facts of the
pending case which was suppressed under sections 304, 324/34 and 324
IPC, it was held not desirable to appoint incumbent notwithstanding his
subsequent acquittal. In Ram Ratan Yadav (supra), this Court held that
suppression of pending criminal case under sections 323, 341, 294, 5068/
B
34 IPC on the date of filing attestation form coupled with impact of it on
students, nature of employment, the discretion exercised to terminate
the services was upheld. In R. Radhakrish11a11 (supra) in which
pendency of criminal case under section 294(b) IPC was suppressed
relying on Sushi/ Kumar (supra), it was held that removal was legal. In
c Bipad Bhanjan Gayen (supra), there was suppression of two pending
cases on the date of filing verification fonn under sections 376 IPC and
417 IPC relating to rape and cheating. It was observed that since
antecedents were not good incumbent could not claim equity for
appointment. In Daya Shankar Yadav (supra), this Court has laid down
course of action to be taken in such cases, and that suppression by itself
D
can be a ground to remove person from service or cancel an appointment,
notwithstanding acquittal in the criminal case. In SKNazrul Islam (supra),
due to suppression of pending case on the date of filing of form under
sections 148, 323, 380, 427, 596 IPC incumbent was adjudged to be
unsuitable for appointment.
E This Court has also opined that before a. person is held guilty of
suppression of a fact it has to be considered whether verification form is
precise and is not vague, and what it required to disclose. In Daya
Shankar (supra) it was held that in case verification form is vague no
fault can be found on the ground of suppression . However, facts which
F have come to knowledge it has to be determined by employer whether
antecedents of incumbent are good for service, to hold someone guilty
of suppression, query in the form has to be specific. Similarly, in B.
Chinnam Naidu (supra) when column in verification form required to
disclose detention or conviction, it did not require to disclose a pending
criminal case or fact of arrest, removal on the ground of material
G suppression of pending case and arrest was set aside as that was not
required to be disclosed.
21. The verification of antecedents is necessary to find out fitness
of incumbent, in the process if a declarant is found to be of good moral
character on due verification of antecedents, merely by suppression of
H
AVTAR SINGH v. UNION OF INDIA & ORS. 489
[ARUN MISHRA, J.]
involvement in trivial offence which was not pending on date of filling A
attestation form, whether he may be deprived of employment? There
may be case of involving moral turpitude/serious offence in which
employee has been acquitted but due to technical reasons or giving benefit
of doubt. There may be situation when person has been convicted of an
offence before filling verification form or case is pending and information
B
regarding it has been suppressed, whether employer should wait till
outcome of pending criminal case to take a decision or in case when
action has been initiated there is already conclusion o.f criminal case
resulting in conviction/acquittal as the case may be. The situation may
arise for consideration of various aspects in a case where disclosure has
been made truthfully ofrequired information, then also authority is required c
to consider and verify fitness for appointment. Similarly in case of
suppression also, ifin the process of verification of information, certain
information comes to notice then also employer is required to take a
decision considering various aspects before holding incumbent as unfit.
If on verification of antecedents a person is found fit at the same time
D
authority has to consider effect of suppression of a fact that he was
tried for trivial offence which does not render him unfit, what importance
to be attached to such non-disclosure. Can there be single yardstick to
deal with all kind of cases?
22. The employer is given 'discretion' to terminate or otherwise
to condone the omission. Even otherwise, once employer has the power E
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 F
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 G
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
H
490 . SUPREME COURT REPORTS (2016] 7 S.C.R.
A for appointment. An employer would be justified in 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
B
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
c service.
23. Coming to the question whether an employee on probation
can be discharged/refused appointment though he has been acquitted of
the charge/s, if his case was not pending when form was filled, in such
matters, employer is bound to consider grounds of acquittal and various
D other aspects, overall conduct of employee including the accusations
which have been levelled. If on verification, the antecedents are otherwise
also not found good, and in number of cases incumbent is involved then
notwithstanding acquittals in a case/cases, it would be open to the
employer to form opinion as to fitness on the basis of material on record. ·
In case offence is petty in nature committed at young age, such as stealing
E a bread, shouting of slogans or is such which does not involve moral
turpitude, cheating, misappropriation etc. or otherwise not a serious or
heinous offence and accused has been acquitted in such a case when
verification form is filled, employer may ignore lapse of suppression or
submitting false information in appropriate cases on due consideration
F of various aspects.
24. No doubt about it that once verification form requires certain
information to be furnished, declarant is duty bound to furnish it correctly
and any suppression of material facts or submitting false information,
may by itself lead to termination of his services or cancellation of
G candidature in an appropriate case. However, in a criminal case incumbent
has not been acquitted and case is pending trial, employer may well be
justified in not appointing such an incumbent or in terminating the services
as conviction ultimately may render him unsuitable for job and employer
is not supposed to wait till outcome of criminal case. In such a case non
disclosure or submitting false information would assume significance
H
AVTAR SINGH v. UNION OF INDIA & ORS. 491
[ARUN MISHRA, J.] ..
and that by itself may be ground for employer to cancel candidature or A
to terminate services.
25. The fraud and misrepresentation vitiates a transaction and in
case employment has been obtained on the basis of forged documents,
as observed in M Bhaskaran's case (supra), it has also been observed
in the reference order that if an appointment was procured fraudulently, B
the incumbent may be terminated without holding any inquiry, however
we add a rider that in case employee is confirmed, holding a civil post
and has protection of Article 311 (2), due inquiry has to be held before
terminating the services. The case ofobtaining appointment on the basis
of forged documents has the effect on very eligibility of incumbent for
the job in question, however, verification of antecedents is different aspect c
as to his fitness otherwise for the post in question. The fraudulently
obtained appointment orders are voidable at the option of employer,
however, question has to be determined in the light of the discussion
made in this order on impact of suppression or submission of false
information. D
26. 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. E
27. 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 F
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.
28. What yardstick is to be applied has to depend upon the nature G
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 concerned authorities considering post/nature of duties/services and
power has to be exercised on due consideration of various aspects.
H
492 SUPREME COURT REPORTS [2016) 7 S.C.R.
A 29. The 'McCarthyism' is antithesis to constitutional goal, chance
of refonnation has to be afforded to young offenders in suitable cases,
interplay of refonnative 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.
B
30. We have noticed various decisions and tried to explain and
reconcile them as far as possible. In view of aforesaid discussion, we
summarize our conclusion thus:
I . Information given to the employer by a candidate as to
c 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
infonnation.
2. While passing order of tennination of services or cancellation
D of candidature for giving false information, the employer may
take notice of special circumstances of the case, if any, while
giving such information.
3. The employer shall take into consideration the Government
orders/instructions/rules, applicable to the employee, at the time
E of taking the decision.
4. In case there is suppression or false information ofinvolvement
in a criminal case where conviction or acquittal had already
been recorded before filling ofthe application/verification form
and such fact later comes to knowledge of employer, any of
F the following recourse appropriate to the case may be adopted:-
a. 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
G
information by condoning the lapse.
b. Where conviction has been recorded in case which is not
trivial in nature, employer may cancel candidature or
terminate services of the employee.
H
AVTAR SINGH v. UNION OF INDIA & ORS. 493
[ARUN MISHRA, J.]
c. If acquittal had already been recorded in a case involving A
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
B
the employee.
(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.
c
(6) Jn case when fact has been truthfully declared in character
verification form regarding pendency of a criminal case oftrivial
nature, employer, in facts and circumstances of the case, in its
discretion may appoint the candidate subject to decision of such
case.
D
(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. E
(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.
F
(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.
(10) For determining suppression or false information attestation/
G
verification form has to be specific, not vague. Only such
information which was required to be specifically mentioned
has to be disclosed. lfinformation 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
H
494 SUPREME COURT REPORTS (2016] 7 S.C.R.
A 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.
(11 )Before a person is held guilty of suppressio veri or suggestio
falsi, knowledge of the fact must be attributable to him.
B We answer the reference accordingly. Let the matters be placed
before an appropriate Bench for consideration on merits.
Devika Gujral Referred issues answered.
c
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