RAJYA VIDYUT PRASARAN NIGAM LIMITED AND ANOTHERversusANIL KANWARIYA

710                      [2021]REPORTS
               SUPREME COURT    7 S.C.R. 710               [2021] 7 S.C.R.


A     RAJASTHAN RAJYA VIDYUT PRASARAN NIGAM LIMITED
                       AND ANOTHER
                                        v.
                             ANIL KANWARIYA
B                    (Civil Appeal Nos. 5743-5744 of 2021)
                             SEPTEMBER 17, 2021
                 [M. R. SHAH AND A. S. BOPANNA, JJ.]
              Service Law – Termination from services – Non-disclosure/
      suppression of material fact and filing a false declaration –
C
      Appellants invited applications for the post of Technical Helper –
      Respondent-employee was appointed for the said post as a
      probationer trainee for a period of two years – As per the
      appointment order, the respondent was required to produce a
      character certification/verification report iss ued by the
D     Superintendent of Police (SP) of the concerned District from
      where he belonged – SP informed the appellants that the respondent
      was convicted by the trial Court for the offences u/s 341, 323 IPC,
      however, given the benefit under the Probation of Offenders Act,
      1958 and the respondent-employee was ordered to be released on
      probation for good conduct – Having found that the respondent
E
      deliberately suppressed the fact of conviction and penalty, not only
      at the time of applying post, but also when he submitted a declaration
      during documents verification that neither criminal case is pending
      against him nor he has suffered any conviction by any court of law
      in any criminal case – Appellant was terminated – Writ Petition –
F     The High Court quashed and set aside the order of the termination
      and directed reinstatement of the respondent – On appeal, held: At
      the time when respondent-employee submitted the application for
      appointment, he did not disclose the fact that he already suffered a
      conviction by the Competent Court but in fact, a false declaration
      was filed that neither any criminal case is pending against him nor
G
      he has been convicted by any Court of law – It is only after the
      police verification, the appellants came to know about the conviction
      of the respondent – Therefore, the appellants were absolutely
      justified in terminating the services of the respondent – The question
      is about the credibility and/or trustworthiness of such an employee,
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                                       710
 RAJASTHAN RAJYA VIDYUT PRASARAN NIGAM LIMITED AND                     711
             ANOTHER v. ANIL KANWARIYA

the question is of TRUST – The order of reinstatement is wholly        A
untenable and unjustified.
      Allowing the appeals, this Court
      HELD: 1. Applying the law laid down by this Court in the
various decisions to the facts of the case on hand, the impugned
order passed by the Division Bench dismissing the appeal and           B
confirming the order passed by the Single Judge quashing and
setting aside the order of termination terminating the services
of the employee on the ground of non-disclosure/suppression of
material fact and filing a false declaration and directing the
appellants to reinstate the respondent-employee is unsustainable.      C
[Para 9][728-B-D]
      2. Apart from the fact that at the time when the respondent
applied in the month of October/November, 2013 though he was
already convicted by the competent court and was given the
benefit under Section 3 of the Act 1958 only, he did not disclose      D
his conviction, but even at the time when he filed a declaration
on 14.04.2015 he filed a false declaration that neither any criminal
case is pending against him nor he has been convicted by any
court of law and relying upon such a declaration the appellants
gave him appointment. Only on police verification/receipt of the
antecedent’s report from the Superintendent of Police, the             E
appellants came to know about the conviction of the respondent.
Therefore, the appellants were absolutely justified in terminating
the services of the respondent. [Para 10][728-D-F]
      3. Even the conduct on the part of the respondent to obtain
the order subsequently from the Sessions Court in an appeal and        F
getting the benefit of Section 12 of the Act 1958 deserves
consideration. The judgment and order of conviction by the trial
Court was passed as far back as on 5.8.2013. For two years, the
respondent did not file any appeal before the Sessions Court.
After a period of approximately two years and after he obtained        G
the appointment on the basis of the false declaration that neither
any criminal case is pending against him nor he has been convicted
by any court of law and having realised that his conviction and the
benefit granted under Section 3 of the Act 1958 by the trial Court

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712            SUPREME COURT REPORTS                       [2021] 7 S.C.R.


A     only will come in his way, subsequently after a period of two years
      he filed an appeal before the Sessions Court on 11.08.29015 and
      the appeal came to be disposed of within a period of one month,
      i.e., on 9.9.2015 and the Sessions Court granted the benefit of
      Section 12 of the Act 1958. From the judgment and order passed
      by the Sessions Court, it appears that the respondent only prayed
B
      for giving the benefit of Section 12 of the Act 1958 and nothing
      was contended by him with regard to conviction and order of
      sentence. Therefore, with a view to get out of the conviction and
      the benefit of Section 3 of the Act 1958 only and having realised
      that his conviction may come in his way, he preferred an appeal
C     after a period of two years and obtained the benefit of Section 12
      of the Act 1958 which provides that a person found guilty of an
      offence and dealt with under the provisions of section 3 or section
      4 shall not suffer disqualification, if any, attaching to a conviction
      of an offence under such law. [Para 11][728-F-H; 729-A-D]
D            4. The issue/question may be considered from another
      angle, from the employer’s point of view. The question is not
      about whether an employee was involved in a dispute of trivial
      nature and whether he has been subsequently acquitted or not.
      The question is about the credibility and/or trustworthiness of
      such an employee who at the initial stage of the employment,
E     i.e., while submitting the declaration/verification and/or applying
      for a post made false declaration and/or not disclosing and/or
      suppressing material fact of having involved in a criminal case. If
      the correct facts would have been disclosed, the employer might
      not have appointed him. Then the question is of TRUST.
F     Therefore, in such a situation, where the employer feels that an
      employee who at the initial stage itself has made a false statement
      and/or not disclosed the material facts and/or suppressed the
      material facts and therefore he cannot be continued in service
      because such an employee cannot be relied upon even in future,
      the employer cannot be forced to continue such an employee.
G     The choice/option whether to continue or not to continue such
      an employee always must be given to the employer. It is observed
      and as observed hereinabove in catena of decision such an


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 RAJASTHAN RAJYA VIDYUT PRASARAN NIGAM LIMITED AND                       713
             ANOTHER v. ANIL KANWARIYA

employee cannot claim the appointment and/or continue to be in           A
service as a matter of right. [Para 12][729-F-H; 730-A-B]
      Devendra Kumar v. State of Uttaranchal, (2013) 9 SCC
      363 : [2013] 8 SCR 471; Jainendra Singh v. State of
      U.P., (2012) 8 SCC 748 : [2012] 6 SCR 1047; Daya
      Shankar Yadav v. Union of India, (2010) 14 SCC 103                 B
      : [2010] 13 SCR 1076; Avtar Singh v. Union of India,
      (2016) 8 SCC 471 : [2016] 7 SCR 445 – relied on.
      Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav,
      (2003) 3 SCC 437 : [2003] 2 SCR 361; Secretary,
      Department of Home Secretary, A.P. v. B. Chinnam                   C
      Naidu, (2005) 2 SCC 746 : [2005] 1 SCR 1147; State
      of M.P. v. Abhijit Singh Pawar, (2018) 18 SCC 733 :
      [2018] 13 SCR 1133; T. S. Vasudavan Nair v. Director
      of Vikram Sarabhai Space Centre, (1988) Suppl. SCC
      795; Commissioner of Police v. Sandeep Kumar, (2011)
      4 SCC 644 : [2011] 3 SCR 964 – referred to.                        D

                       Case Law Reference
[2016] 7 SCR 445               relied on                Para 3.2
[2003] 2 SCR 361               referred to              Para 4.7
                                                                         E
[2005] 1 SCR 1147              referred to              Para 4.7
[2010] 13 SCR 1076             relied on                Para 4.7
[2012] 6 SCR 1047              relied on                Para 4.7
[2013] 8 SCR 471               relied on                Para 4.7
                                                                         F
[2018] 13 SCR 1133             referred to              Para 4.7
[2011] 3 SCR 964               referred to              Para 5.2
      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.5743-
5744 of 2021.
                                                                         G
      From the Judgment and Order dated 05.09.2019 of the High Court
of Judicature of Rajasthan Bench at Jaipur in D.B. Special Appeal Writ
No.560 of 2019 in S.B. Civil Writ Petition No.6969 of 2016 and Final
Judgment and Order dated 05.12.2019 in D.B. Review Petition (Writ)

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714            SUPREME COURT REPORTS                           [2021] 7 S.C.R.


A     No.250 of 2019 in D.B. Civil Special Appeal Writ No.560 of 2019 in
      S.B. Civil Writ Petition No.6969 of 2016.
            Dr. Manish Singhvi, Sr. Adv., Sandeep Kumar Jha, Advs. for the
      Appellants.
            Navin Prakash, Ved Vyas Tripathi, Advs. for the Respondent.
B
            The Judgment of the Court was delivered by
            M. R. SHAH, J.
            1. Leave granted.
             2. Feeling aggrieved and dissatisfied with the impugned judgment
C
      and order dated 05.09.2019 passed by the High Court of Judicature for
      Rajasthan, Bench at Jaipur in D.B. Special Appeal Writ No. 560/2019,
      as well as the order dated 05.12.2019 passed in D.B. Review Petition
      (Writ) No. 250/2019, by which the Division Bench of the High Court has
      dismissed the said appeal and has confirmed the judgment and order
D     passed by the learned Single Judge dated 23.01.2019 by which the learned
      Single Judge allowed the said writ petition preferred by the respondent
      herein and quashed and set aside the order of termination terminating
      the services of the respondent – employee herein – original writ petitioner
      on the ground of suppression of material facts of conviction and penalty
      at the time of applying for the post in 2013 and also submitting a false
E
      declaration at the time of documents verification on 14.04.2015, the
      employer – Rajasthan Rajya Vidyut Prasaran Nigam Limited and another
      have preferred the present appeal.
             3. That the appellants herein invited applications for the post of
      Technical Helper by issuing advertisement in the month of October, 2013.
F
      Pursuant to the said advertisement, respondent herein – employee applied
      for the said post. The written test was held on 02.02.2014 and result of
      which was declared on 31.03.2015. The date fixed for the documents’
      verification was 14.04.2015. The respondent herein having qualified for
      the said post was appointed as a Technical Helper as probationer trainee
G     for a period of two years on 06.05.2015 and was placed under
      Superintending Engineer, RVPN, Jodhpur. As per condition No. 16 of
      the terms and conditions of the appointment order, the appointment of
      the respondent was subject to production of a character certification/
      verification report issued by the Superintendent of Police of the concerned
      District where he belongs. The Superintendent of Police, Sawai Madhopur
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 RAJASTHAN RAJYA VIDYUT PRASARAN NIGAM LIMITED AND                             715
       ANOTHER v. ANIL KANWARIYA [M. R. SHAH, J.]

vide police verification/antecedents report dated 5.6.2015 informed the        A
appellants that a Case bearing No. 13/2011 against the respondent-
employee for the offences under Sections 143, 341, 323 IPC in which a
chargesheet was filed against the respondent-employee on 17.01.2011
and the learned trial Court convicted the respondent-employee vide
judgment and order dated 5.8.2013, convicting him for the offences under
                                                                               B
Sections 341 and 323 IPC, however, given the benefit under the Probation
of Offenders Act, 1958 (hereinafter referred to as “Act 1958”). While
giving the benefit of Act 1958, the respondent-employee was ordered to
be released on probation for good conduct.
        It is to be noted that even subsequently such conviction of the
respondent-employee came to be confirmed, however, the learned                 C
Sessions Judge vide judgment dated 09.09.2015 granted the benefit of
Section 12 of the Act 1958 to the respondent-employee which provides
that a person shall not suffer disqualification attaching to the conviction.
       3.1 Having found that the respondent-employee deliberately
suppressed the fact of conviction and penalty, not only at the time of         D
applying for the post, but also on 14.04.2015 whereby he submitted a
declaration during documents verification that neither criminal case is
pending against him nor he has suffered any conviction by any court of
law in any criminal case and finding concealment of facts of criminal
case, the appellants issued a show cause notice dated 31.08.2015 to the        E
respondent-employee and granted him an opportunity of being heard on
15.03.2016 and having found that in view of suppression of material fact
of not disclosing his conviction by the competent court, respondent-
employee shall not be continued in service and therefore vide order dated
6.5.2016, the appellants terminated the services of the respondent-
employee.                                                                      F

       3.2 Aggrieved by the order of termination, the respondent-employee
preferred Writ Petition No. 6969 of 2016 before the learned Single Judge
of the High Court. The learned Single Judge of the High Court solely
relying on the judgment of this Court in the case of Avtar Singh v.
Union of India, reported in (2016) 8 SCC 471, and also on order                G
dated 9.9.2015 passed by the learned Sessions Judge in appeal granting
benefit of Section 12 of the Act 1958, allowed the writ petition and quashed
and set aside the order of termination and directed the appellants to
reinstate the respondent-employee with all consequential benefits.
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716             SUPREME COURT REPORTS                            [2021] 7 S.C.R.


A            3.3 Feeling aggrieved and dissatisfied with the judgment and order
      passed by the learned Single Judge, quashing and setting aside the order
      of termination and directing the appellants to reinstate the respondent-
      employee, the appellants-employer preferred appeal before the Division
      Bench being D.B. Special Appeal Writ No. 560 of 2019. The Division
      Bench also solely relying upon para 38.4.1 of the decision of this Court
B
      in the case of Avtar Singh (supra) and observing that the employee
      was held guilty in a dispute of trivial nature with his father, uncle, brother
      and cousin and as it was a trivial nature dispute and such a dispute
      which even if disclosed could have been ignored by the employer because
      of the benefit of Section 12 of the Act 1958, the Division Bench by the
C     impugned judgment and order has dismissed the said appeal and has
      confirmed the judgment and order passed by the learned Single Judge,
      directing reinstatement of the employee with all consequential benefits.
      The review petition preferred by the appellants herein has also been
      dismissed.
D           4. Dr. Manish Singhvi, learned Senior Advocate has appeared on
      behalf of the appellants and Mr. Navin Prakash, Advocate has appeared
      on behalf of the respondent-employee.
             4.1 Dr. Manish Singhvi, learned Senior Advocate appearing on
      behalf of the appellants-employer has vehemently submitted that in the
E     facts and circumstances of the case, both, the learned Single Judge as
      well as the Division Bench have materially erred in quashing and setting
      aside the order of termination mainly relying upon the decision of this
      Court in the case of Avtar Singh (supra) and considering the subsequent
      order passed by the learned Sessions Court granting the benefit of Section
      12 of the Act 1958.
F
            4.2 It is further submitted that, as such, in the facts and
      circumstances of the case, the decision of this Court in the case of
      Avtar Singh (supra) shall not be applicable at all. It is submitted that on
      the contrary it supports the case of the appellants.

G            4.3 It is further submitted that in the present case at the time
      when the respondent-employee applied for the advertised post, he was
      already convicted for the offences under Sections 341 and 323 IPC by
      the competent criminal court which he did not disclose. It is submitted
      that even thereafter also when he submitted the declaration at the time
      of documents verification on 14.04.2015, the respondent-employee though
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 RAJASTHAN RAJYA VIDYUT PRASARAN NIGAM LIMITED AND                                717
       ANOTHER v. ANIL KANWARIYA [M. R. SHAH, J.]

already suffered a conviction for the offences under Sections 341 and             A
323 IPC and at that time, i.e., on 14.04.2015, only the benefit under
Sections 3 & 4 of the Act 1958 was given, he filed a false declaration. It
is submitted that the learned trial Court did not grant the benefit of Section
12 of the Act 1958, which benefit of Section 12 of the Act 1958 was
given only vide judgment and order dated 9.9.2015 by the learned Sessions
                                                                                  B
Judge. It is submitted that as the respondent-employee suppressed the
material fact of criminal case firstly in the year 2013 when he submitted
the application and thereafter subsequently on 14.04.2015 when he
submitted the declaration at the time of documents verification and
thereafter when the services of the respondent were terminated after
giving him an opportunity of being heard, the same ought not to have              C
interfered with by the learned Single Judge and thereafter by the Division
Bench.
       4.4 It is further submitted that the High Court has materially erred
in even considering the subsequent decision of the learned Sessions Court
in appeal granting the benefit of Section 12 of the Act 1958. It is submitted     D
that the date on which the respondent applied for the said post and even
submitted the declaration, there was no order passed by the learned
Sessions Court granting the benefit of Section 12 of the Act 1958 and at
that time the order passed by the learned trial Court granting the benefit
of Sections 3 & 4 of the Act 1958 was subsisting. Therefore, the High
Court ought not to have relied upon and/or taken into consideration the           E
subsequent decision of the learned Sessions Judge dated 9.9.2015 granting
the benefit of Section 12 of the Act 1958.
        4.5 It is further submitted by the learned senior counsel appearing
on behalf of the appellants that the matter may be looked at from another
angle. It is submitted that when the employee initially suppressed the            F
material fact and obtained the appointment fraudulently, thereafter it is a
case of trustworthiness, reliability and credibility of such an employee.
It is submitted that if the employee would have disclosed at the relevant
time that he is facing the criminal trial and/or he has been convicted, in
that case from the very inception, the employer would not have employed           G
him. It is submitted that therefore the employer is justified in not continuing
such an employee who has suppressed the material fact at the relevant
time, on the premise that such a person cannot be trusted thereafter and
cannot be continued in service.

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718            SUPREME COURT REPORTS                          [2021] 7 S.C.R.


A            4.6 It is further submitted that even the observations made by the
      Division Bench in the impugned judgment that the dispute for which the
      employee was convicted was a trivial nature dispute and such a dispute
      which even if disclosed could have been ignored by the employer because
      of the benefit of Section 12 of the Act 1958 given to him is absolutely
      irrelevant, it is submitted that such a reasoning is not germane. It is
B
      submitted that such an observation is on the basis of surmises and
      conjectures that what could have been done by the employer.
             4.7 Making the above submissions and relying upon the decisions
      of this Court in the cases of Kendriya Vidyalaya Sangathan v. Ram
      Ratan Yadav, (2003) 3 SCC 437; Secretary, Department of Home
C     Secretary, A.P. v. B. Chinnam Naidu, (2005) 2 SCC 746; Daya
      Shankar Yadav v. Union of India, (2010) 14 SCC 103; Jainendra
      Singh v. State of U.P., (2012) 8 SCC 748; Devendra Kumar v. State
      of Uttaranchal, (2013) 9 SCC 363; and State of M.P. v. Abhijit
      Singh Pawar, (2018) 18 SCC 733, it is prayed to allow the present
D     appeals and quash and set aside the impugned judgment and order passed
      by the Division Bench and consequently quash and set aside the judgment
      and order passed by the learned Single Judge and consequently dismiss
      the writ petition filed by the respondent-employee before the High Court.
             5. The present appeals are vehemently opposed by Shri Navin
E     Prakash, learned Advocate appearing for the respondent-employee. It
      is submitted that in the facts and circumstances of the case and more
      particularly the order passed by the learned Sessions Court granting the
      benefit under Section 12 of the Act 1958 and considering the fact that
      the dispute was of a trivial nature with the family members, the learned
      Single Judge rightly set aside the order of termination which has been
F     rightly confirmed by the Division Bench.
             5.1 It is further submitted that the order passed by the learned
      Single Judge, confirmed by the Division Bench, is absolutely in consonance
      with the decision of this Court in the case of Avtar Singh (supra), more
      particularly para 38.4.1 of the said decision.
G
            5.2 It is further submitted by the learned counsel that even
      otherwise the omission or the lapse committed on the part of the
      respondent was neither intentional nor deliberate, rather it was under
      bonafide belief that in view of the benefit granted to the respondent
      under the provisions of section 3 of the Act 1958 by the learned trial
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 RAJASTHAN RAJYA VIDYUT PRASARAN NIGAM LIMITED AND                               719
       ANOTHER v. ANIL KANWARIYA [M. R. SHAH, J.]

Court, the respondent has not incurred disqualification. It is submitted         A
therefore the said omission or the lapse deserves to be condoned by
taking a lenient view. Heavy reliance is placed on the decisions of this
Court in the cases of T.S. Vasudavan Nair v. Director of Vikram
Sarabhai Space Centre, 1988 Supp. SCC 795; Commissioner of
Police v. Sandeep Kumar, (2011) 4 SCC 644; and Avtar Singh
                                                                                 B
(supra).
       5.3 It is further submitted that in the instant case, as has been held
by the learned Single Judge in judgment and order dated 23.01.2019, the
employer – appellants herein did not at all consider the case of the
respondent as regard to the extenuating circumstances and the benefit
granted to him under sections 3 & 12 of the Act 1958 by the learned trial        C
Court and the learned sessions Court.
      5.4 Making the above submissions and relying upon the aforesaid
decisions, it is prayed to dismiss the present appeals.
       6. We have heard the learned counsel for the respective parties           D
at length.
        At the outset, it is required to be noted that the appellants herein –
employer terminated the services of the respondent on non-disclosure
of the pending criminal case against him at the time when he submitted
the application for appointment, submitted in the month of October/              E
November, 2013 and thereafter in the declaration dated 14.04.2015. As
observed hereinabove, the respondent was chargesheeted for the
offences under Sections 143, 341 and 323 IPC vide chargesheet dated
17.01.2011. The learned trial Court convicted the respondent for the
offences under Sections 341 & 323 IPC, vide judgment and order dated
5.8.2013. However, granted the benefit under Section 3 of the Act 1958           F
only. In the month of October, 2013, the appellants issued an advertisement
for the post of Technical Helper and the last date for submission of the
application was 14.11.2013. Pursuant to the said advertisement, the
respondent applied for the said post and the written test was held on
02.02.2014 and the result of which was declared on 31.03.2015. The               G
respondent submitted declaration on 14.04.2015 declaring that neither
any criminal case is pending against him nor he has been convicted by
any court of law. The date fixed for documents verification was
14.04.2015 and along with the documents verification he was required
to file a declaration which he submitted stating that neither any criminal
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720             SUPREME COURT REPORTS                            [2021] 7 S.C.R.


A     case is pending against him nor he has been convicted by any court of
      law. Therefore, on the date of submitting an application and even at the
      time when declaration was filed on 14.04.2015, there was already an
      order of conviction against him. Even at the relevant time, the benefit of
      Section 12 of the Act 1958 was not granted to the respondent, which
      was given subsequently vide judgment of the learned Sessions Court
B
      dated 09.09.2015.
             6.1 At this stage, it is required to be noted that the show cause
      notice dated 31.08.2015was followed after the employer received the
      police verification/antecedents report dated 5.6.2015 of the Superintendent
      of Police, Sawai Madhopur disclosing that the respondent was already
C     convicted by the learned trial Court vide judgment and order dated
      5.8.2013 and was granted the benefit of Section 3 of the Act 1958 only.
      That thereafter it appears that having realised that in view of the conviction
      imposed by the learned trial Court and granted the benefit of Section 3
      of the Act 1958 only, the same shall come in his way, belatedly the
D     respondent preferred an appeal before the learned Sessions Court on
      11.08.2015, challenging the judgment and order of conviction passed by
      the learned trial Court dated 5.8.2013, i.e., after a period of two years.
      That by judgment and order dated 9.9.2015, the learned Sessions Court
      allowed the said appeal partly, however granted the benefit of Section
      12 of the Act 1958, as prayed.
E
              6.2 From the judgment and order passed by the learned Sessions
      Court, it appears that only submission on behalf of the respondent was
      with respect to granting the benefit of Section 12 of the Act 1958 and
      the appeal came to be disposed of by the learned Sessions Court within
      a period of one month from the date of filing of the appeal, though the
F     judgment and order of conviction by the learned trial Court was passed
      in the year 2013. Therefore, it appears that only with a view to get out of
      the disqualification of conviction, belatedly he preferred an appeal and
      obtained the order of granting the benefit of Section 12 of the Act 1958.
      Even otherwise, it is required to be noted that on getting the benefit of
G     Section 12 of the Act 1958 subsequently by that itself the respondent
      cannot get away of the allegations of suppression of material fact and
      filing a false declaration that neither any criminal case is pending against
      him nor he has been convicted by any court of law, which was filed on
      14.04.2015.

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 RAJASTHAN RAJYA VIDYUT PRASARAN NIGAM LIMITED AND                               721
       ANOTHER v. ANIL KANWARIYA [M. R. SHAH, J.]

        6.3 Thus, at the time when he submitted the application for              A
appointment in the month of October/November 2013, the respondent
already suffered a conviction by the competent court which not only he
did not disclose, but in fact, a false declaration was filed that neither any
criminal case is pending against him nor he has been convicted by any
court of law. That thereafter after receipt of the police verification/
                                                                                 B
antecedents report dated 5.6.2015 from the Superintendent of Police,
Sawai Madhopur and after giving a show cause notice and an opportunity
of being heard to the respondent, the employer terminated the services
of the respondent on the ground of non-disclosure /suppression of material
fact and filing a false declaration.
       7. In light of the aforesaid facts, the orders passed by the learned      C
Division Bench as well as the learned Single Judge of the High Court
and the reliance placed upon the decision of this Court in the case of
Avtar Singh (supra), relied upon on behalf of the respondent-employee,
are required to be considered.
       8. While considering the aforesaid issues, few decisions of this          D
Court on appointment obtained by fraud/misrepresentation and/or
appointment obtained by suppression of material facts are required to be
referred to and considered.
       8.1 In the case of B. Chinnam Naidu (supra), this Court has
observed that the object of requiring information in the attestation form        E
and the declaration thereafter by the candidate is to ascertain and verify
the character and antecedents to judge his suitability to enter into or
continue in service. It is further observed that when a candidate suppresses
material information and/or gives false information, he cannot claim any
right for appointment or continuance in service.                                 F
       8.2 In the case of Devendra Kumar (supra), while joining the
training, the employee was asked to submit an affidavit giving certain
information, particularly, whether he had ever been involved in any
criminal case. The employee submitted an affidavit stating that he had
never been involved in any criminal case. The employee completed his             G
training satisfactorily and it was at this time that the employer in pursuance
of the process of character verification came to know that the employee
was in fact involved in a criminal case. It was found that the final report
in that case had been submitted by the prosecution and accepted by the
Judicial Magistrate concerned. On the basis of the same, the employee
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722             SUPREME COURT REPORTS                           [2021] 7 S.C.R.


A     was discharged abruptly on the ground that since he was a temporary
      government servant, he could be removed from service without holding
      an enquiry. The said order was challenged by the employee by filing a
      writ petition before a Single Judge of the High Court which was dismissed.
      The Division Bench upheld that order, which was the subject matter of
      appeal before this Court. Dismissing the appeal, this Court observed and
B
      held that the question is not whether the employee is suitable for the
      post. The pendency of a criminal case/proceeding is different from
      suppressing the information of such pendency. The case pending against
      a person might not involve moral turpitude but suppressing of this
      information itself amounts to moral turpitude. It is further observed that
C     the information sought by the employer if not disclosed as required, would
      definitely amount to suppression of material information and in that
      eventuality, the service becomes liable to be terminated, even if there
      had been no further trial or the person concerned stood acquitted/
      discharged. It is further observed by this Court in the said decision that
      where an applicant/employee gets an order by misrepresenting the facts
D
      or by playing fraud upon the competent authority, such an order cannot
      be sustained in the eye of the law. “Fraud avoids all judicial acts,
      ecclesiastical or temporal”. It is further observed and held that dishonesty
      should not be permitted to bear the fruit and benefit those persons who
      have defrauded or misrepresented themselves and in such circumstances
E     the court should not perpetuate the fraud by entertaining petitions on
      their behalf. The relevant observations in the said decision are in paras
      12, 13, 18 & 25, which are as under:
            12. So far as the issue of obtaining the appointment by
            misrepresentation is concerned, it is no more res integra. The
F           question is not whether the applicant is suitable for the post. The
            pendency of a criminal case/proceeding is different from
            suppressing the information of such pendency. The case pending
            against a person might not involve moral turpitude but suppressing
            of this information itself amounts to moral turpitude. In fact,
            the information sought by the employer if not disclosed as required,
G           would definitely amount to suppression of material information.
            In that eventuality, the service becomes liable to be terminated,
            even if there had been no further trial or the person concerned
            stood acquitted/discharged.

H
RAJASTHAN RAJYA VIDYUT PRASARAN NIGAM LIMITED AND                          723
      ANOTHER v. ANIL KANWARIYA [M. R. SHAH, J.]

   13. It is a settled proposition of law that where an applicant gets     A
   an office by misrepresenting the facts or by playing fraud upon
   the competent authority, such an order cannot be sustained in the
   eye of the law. “Fraud avoids all judicial acts, ecclesiastical or
   temporal.” [Vide S.P. Chengalvaraya Naidu v. Jagannath (1994)
   1 SCC 1: AIR 1994 SC 853.] In Lazarus Estates Ltd. V. Beasley
                                                                           B
   [(1956) 1 QB 702: (1956) 2 WLR 502: (1956) 1 ALL ER 341
   (CA)] the Court observed without equivocation that: (QB p. 712)
   “… No judgment of a court, no order of a Minister can be allowed
   to stand if it has been obtained by fraud, for fraud unravels
   everything.”
                                                                           C
   18. The ratio laid down by this Court in various cases is that
   dishonesty should not be permitted to bear the fruit and benefit
   those persons who have frauded or misrepresented themselves.
   In such circumstances the court should not perpetuate the fraud
   by entertaining petitions on their behalf. In Union of India v. M.
   Bhaskaran (1995) Supp (4) SCC 100 this court, after placing             D
   reliance upon and approving its earlier judgment in Vizianagaram
   Social Welfare Residential School Society v. M. Tripura Sundari
   Devi (1990) 3 SCC 655, observed as under: (M. Bhaskaran case,
   SCC p. 104, para 6)
     If by committing fraud any employment is obtained, the same           E
   cannot be permitted to be countenanced by a court of law as the
   employment secured by fraud renders it voidable at the option of
   the employer.
   25. More so, if the initial action is not in consonance with law, the
   subsequent conduct of party cannot sanctify the same. Sublato           F
   fundamento cadit opus – a foundation being removed, the
   superstructure falls. A person having done wrong cannot take
   advantage of his own wrong and plead bar of any law to frustrate
   the lawful trial by a competent court. In such a case the legal
   maxim nullus commodum caprere potest de injuria sua propria             G
   applies. The persons violating the law cannot be permitted to urge
   that their offence cannot be subjected to inquiry, trial or
   investigation. [Vide Union of India v. Major General Madan Lal
   Yadav (1996) 4 SCC 127:1996 SCC (Cri) 592: AIR 1996 SC 1340
   and Lily Thomas v. Union of India (2000) 6 SCC 224: 2000 SCC
                                                                           H
724            SUPREME COURT REPORTS                           [2021] 7 S.C.R.


A           (Cri) 1056.] Nor can a person claim any right arising out of his
            own wrongdoing (jus ex injuria non oritur).
             8.3 In the case of Jainendra Singh (supra), this Court summarised
      the principles to be considered in a case where the appointment is obtained
      by misrepresentation and/or suppression of facts by candidates/
B     appointees as under:
            “(i) Fraudulently obtained orders of appointment could be
            legitimately treated as voidable at the option of the employer or
            could be recalled by the employer and in such cases merely
            because the respondent employee has continued in service for a
C           number of years, on the basis of such fraudulently obtained
            employment, cannot get any equity in his favour or any estoppel
            against the employer.
            (ii) Verification of the character and antecedents is one of the
            important criteria to test whether the selected candidate is suitable
D           to the post under the State and on account of his antecedents the
            appointing authority if find not desirable to appoint a person to a
            disciplined force can it be said to be unwarranted.
            (iii) When appointment was procured by a person on the basis of
            forged documents, it would amount to misrepresentation and fraud
E           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.
            (iv) A candidate having suppressed material information and/or
            giving false information cannot claim right to continue in service
F           and the employer, having regard to the nature of employment as
            well as other aspects, has the discretion to terminate his services.
            (v) The purpose of calling for information regarding involvement
            in any criminal case or detention or conviction is for the purpose
            of verification of the character/antecedents at the time of
            recruitment and suppression of such material information will have
G
            clear bearing on the character and antecedents of the candidate
            in relation to his continuity in service.
            (vi) The person who suppressed the material information and/or
            gives false information cannot claim any right for appointment or
            continuity in service.
H
 RAJASTHAN RAJYA VIDYUT PRASARAN NIGAM LIMITED AND                            725
       ANOTHER v. ANIL KANWARIYA [M. R. SHAH, J.]

      (vii) The standard expected of a person intended to serve in            A
      uniformed service is quite distinct from other services and,
      therefore, any deliberate statement or omission regarding a vital
      information can be seriously viewed and the ultimate decision of
      the appointing authority cannot be faulted.
      (viii) An employee on probation can be discharged from service          B
      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 if
      ultimately he was acquitted of the said case, inasmuch as such a
      situation would make a person undesirable or unsuitable for the
      post.                                                                   C

      (ix) An employee in the uniformed service 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
      (x) The authorities entrusted with the responsibility of appointing
      Constables, are under duty to verify the antecedents of a candidate
      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.”                                                          E

       8.4 In the case of Daya Shankar Yadav (supra), this Court had
an occasion to consider the purpose of seeking the information with
respect to antecedents. It is observed and held that the purpose of seeking
the information with respect to antecedents is to ascertain the character
and antecedents of the candidate so as to assess his suitability for the      F
post. It is further observed that 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 lead to any of
the following consequences:
      “(a) If the declarant has answered the questions in the affirmative     G
      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, discharge him from service), if
      he is found to be unfit having regard to the nature and gravity of
                                                                              H
      the offence/crime in which he was involved.
726            SUPREME COURT REPORTS                           [2021] 7 S.C.R.


A           (b) On the other hand, if the employer finds that the criminal case
            disclosed by the declarant related to offences which 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
B
            and proceed to appoint him or continue him in employment.
            (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 if the declarant had been cleared of
C           the charges or is acquitted. This is 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 not contain
D           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, for not furnishing the relevant
E           information. But if 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.”
             Thereafter, it is observed and held that an employee can be
F     discharged from service or a prospective employee may be refused
      employment 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 if he was ultimately acquitted in
      the criminal case).

G            8.5 In the case of Abhijit Singh Pawar (supra), when the
      employee participated in the selection process, he tendered an affidavit
      disclosing the pending criminal case against him. The affidavit was filed
      on 22.12.2012. According to the disclosure, a case registered in the year
      2006 was pending on the date when the affidavit was tendered. However,
      within four days of filing such an affidavit, a compromise was entered
H     into between the original complainant and the employee and an application
 RAJASTHAN RAJYA VIDYUT PRASARAN NIGAM LIMITED AND                           727
       ANOTHER v. ANIL KANWARIYA [M. R. SHAH, J.]

for compounding the offence was filed under Section 320 Cr.P.C. The          A
employee came to be discharged in view of the deed of compromise.
That thereafter the employee was selected in the examination and was
called for medical examination. However, around the same time, his
character verification was also undertaken and after due consideration
of the character verification report, his candidature was rejected. The
                                                                             B
employee filed a writ petition before the High Court challenging rejection
of his candidature. The learned single Judge of the High Court of Madhya
Pradesh allowed the said writ petition. The judgment and order passed
by the learned single Judge directing the State to appoint the employee
came to be confirmed by the Division Bench which led to appeal before
this Court. After considering catena of decisions on the point including     C
the decision of this Court in the case of Avtar Singh (supra), this Court
upheld the order of the State rejecting the candidature of the employee
by observing that as held in Avtar Singh (supra), even in cases where
a truthful disclosure about a concluded case was made, the employer
would still have a right to consider antecedents of the candidate and
                                                                             D
could not be compelled to appoint such candidate. After reproducing
and/or re-considering para 38.5 of the decision in the case of Avtar
Singh (supra), in paragraph 13, this Court observed and held as under:
      13. In Avtar Singh (supra), though this Court was principally
      concerned with the question as to non-disclosure or wrong
      disclosure of information, it was observed in para 38.5 that even      E
      in cases where a truthful disclosure about a concluded case was
      made, the employer would still have a right to consider antecedents
      of the candidate and could not be compelled to appoint such
      candidate.
       In the said decision, this Court also considered the conduct on the   F
part of the employee in getting discharge on the basis of the compromise
which was obtained within a period of four days of filing the affidavit/
disclosure. In paragraph 14, it is observed and held as under:
      14. In the present case, as on the date when the respondent had
      applied, a criminal case was pending against him. Compromise           G
      was entered into only after an affidavit disclosing such pendency
      was filed. On the issue of compounding of offences and the effect
      of acquittal under Section 320(8) of CrPC, the law declared by
      this Court in Mehar Singh (2013) 7 SCC 685, specially in paras 34
      and 35 completely concludes the issue. Even after the disclosure       H
728             SUPREME COURT REPORTS                           [2021] 7 S.C.R.


A           is made by a candidate, the employer would be well within his
            rights to consider the antecedents and the suitability of the
            candidate. While so considering, the employer can certainly take
            into account the job profile for which the selection is undertaken,
            the severity of the charges levelled against the candidate and
            whether the acquittal in question was an honourable acquittal or
B
            was merely on the ground of benefit of doubt or as a result of
            composition.
            9. Applying the law laid down by this Court in the aforesaid
      decisions to the facts of the case on hand, the impugned order passed by
      the Division Bench dismissing the appeal and confirming the order passed
C     by the learned single Judge quashing and setting aside the order of
      termination terminating the services of the employee on the ground of
      non-disclosure/suppression of material fact and filing a false declaration
      and directing the appellants to reinstate the respondent-employee is
      unsustainable.
D            10. Apart from the fact that at the time when the respondent
      applied in the month of October/November, 2013 though he was already
      convicted by the competent court and was given the benefit under Section
      3 of the Act 1958 only, he did not disclose his conviction, but even at the
      time when he filed a declaration on 14.04.2015 he filed a false declaration
E     that neither any criminal case is pending against him nor he has been
      convicted by any court of law and relying upon such a declaration the
      appellants gave him appointment. Only on police verification/receipt of
      the antecedent’s report from the Superintendent of Police, Sawai
      Madhopur, the appellants came to know about the conviction of the
      respondent. Therefore, the appellants were absolutely justified in
F     terminating the services of the respondent.
             11. Even the conduct on the part of the respondent to obtain the
      order subsequently from the learned Sessions Court in an appeal and
      getting the benefit of Section 12 of the Act 1958 deserves consideration.
      As observed hereinabove, the judgment and order of conviction by the
G     learned trial Court was passed as far back as on 5.8.2013. For two
      years, the respondent did not file any appeal before the learned Sessions
      Court. After a period of approximately two years and after he obtained
      the appointment on the basis of the false declaration that neither any
      criminal case is pending against him nor he has been convicted by any
H     court of law and having realised that his conviction and the benefit granted
 RAJASTHAN RAJYA VIDYUT PRASARAN NIGAM LIMITED AND                             729
       ANOTHER v. ANIL KANWARIYA [M. R. SHAH, J.]

under Section 3 of the Act 1958 by the learned trial Court only will come      A
in his way, subsequently after a period of two years he filed an appeal
before the learned Sessions Court on 11.08.29015 and the appeal came
to be disposed of within a period of one month, i.e., on 9.9.2015 and the
learned Sessions Court granted the benefit of Section 12 of the Act
1958. From the judgment and order passed by the learned Sessions Court,
                                                                               B
it appears that the respondent only prayed for giving the benefit of Section
12 of the Act 1958 and nothing was contended by him with regard to
conviction and order of sentence. Therefore, with a view to get out of
the conviction and the benefit of Section 3 of the Act 1958 only and
having realised that his conviction may come in his way, he preferred an
appeal after a period of two years and obtained the benefit of Section 12      C
of the Act 1958 which provides that a person found guilty of an offence
and dealt with under the provisions of section 3 or section 4 shall not
suffer disqualification, if any, attaching to a conviction of an offence
under such law.
       Even otherwise, subsequently getting the benefit of Section 12 of       D
the Act 1958 shall not be helpful to the respondent inasmuch as the
question is about filing a false declaration on 14.04.2015 that neither any
criminal case is pending against him nor he has been convicted by any
court of law, which was much prior to the order passed by the learned
Sessions Court granting the benefit of Section 12 of the Act 1958. As
observed hereinabove, even in case of subsequent acquittal, the employee       E
once made a false declaration and/or suppressed the material fact of
pending criminal case shall not be entitled to an appointment as a matter
of right.
       12. The issue/question may be considered from another angle,
from the employer’s point of view. The question is not about whether an        F
employee was involved in a dispute of trivial nature and whether he has
been subsequently acquitted or not. The question is about the credibility
and/or trustworthiness of such an employee who at the initial stage of
the employment, i.e., while submitting the declaration/verification and/or
applying for a post made false declaration and/or not disclosing and/or        G
suppressing material fact of having involved in a criminal case. If the
correct facts would have been disclosed, the employer might not have
appointed him. Then the question is of TRUST. Therefore, in such a
situation, where the employer feels that an employee who at the initial
stage itself has made a false statement and/or not disclosed the material
                                                                               H
730                SUPREME COURT REPORTS                     [2021] 7 S.C.R.


A     facts and/or suppressed the material facts and therefore he cannot be
      continued in service because such an employee cannot be relied upon
      even in future, the employer cannot be forced to continue such an
      employee. The choice/option whether to continue or not to continue such
      an employee always must be given to the employer. At the cost of
      repetition, it is observed and as observed hereinabove in catena of
B
      decision such an employee cannot claim the appointment and/or continue
      to be in service as a matter of right.
             13. In view of the afore-stated facts and circumstances of the
      case, both, the learned Division Bench as well as the learned Single
      Judge have clearly erred in quashing and setting aside the order of
C     termination terminating the services of the respondent on the ground of
      having obtained an appointment by suppressing material fact and filing a
      false declaration. The order of reinstatement is wholly untenable and
      unjustified.
             14. In view of the above and for the reasons stated above, the
D     present appeals succeed. The impugned judgment and order passed by
      the Division Bench, as well as, the order passed by the learned Single
      Judge quashing and setting aside the order of termination are hereby
      quashed and set aside. Consequently, the writ petition filed by the
      respondent-employee stands dismissed and the order of termination stands
E     restored. However, in the facts and circumstances of the case, there
      shall be no order as to costs.


      Ankit Gyan                                                Appeals allowed.

F




G




H