STATE OF WEST BENGAL & ORS.versusMITUL KUMAR JANA

                 [2023] 11 S.C.R. 613 : 2023 INSC 754



                           CASE DETAILS

                 STATE OF WEST BENGAL & ORS.
                                    v.
                        MITUL KUMAR JANA
                    (Civil Appeal No. 8510 of 2011)
                           AUGUST 22, 2023
     [J. K. MAHESHWARI AND K. V. VISWANATHAN, JJ.]

                             HEADNOTES

     Issue for consideration: Whether the High Court erred in allowing
the writ petition filed by the respondent, setting aside the order passed
by the Administrative Tribunal and directing the appointment of the
respondent as constable in the West Bengal police force.
     Service Law – Suppression of material information – When not:
      Held: Information sought in the verification roll was regarding
arrest, detention and conviction by a Court in any offence – In reply to
the information asked the respondent gave the answer as “no” – As per
the contents of the information sought and as per the answer given by the
respondent, he was not required to furnish information regarding pending
criminal case – Therefore, supply of such information by the respondent
does not fall within the expression ‘suppression of material information’
– Tribunal and the High Court rightly found that it is not a case of
suppression of material information – Further, criminal case registered
against the respondent were for petty offences – The allegations were
neither of heinous/serious offences, nor related to an offence involving
moral turpitude – Respondent was honourably acquitted – Considering
the subsequent development of the clean acquittal of respondent, it
requires consideration objectively by the authority, about the question
of fitness, ignoring the issue of supressing the information – High Court
could not have directed the issuance of the letter of appointment and taken
away the said discretion of the employer – Order modified – Appellant
to consider the case of the respondent and issue order of appointment
                                   613
614          SUPREME COURT REPORTS                       [2023] 11 S.C.R.


to the post of constable in West Bengal Police Force, exercising the
discretion judiciously in assessing the suitability and antecedents.[Paras
10, 12, 14 and 15]
    Service Law – Pending criminal case, information furnished –
Acquittal – Discretion of the employer:
     Held: Even in case where the information regarding pending
criminal case is truthfully furnished and on acquittal therein, an employer
has the discretion to consider the antecedents while issuing the letter of
appointment.[Para 14]

       LIST OF CITATIONS AND OTHER REFERENCES

     Deptt. of Home Secy., A.P. and Others v. B. Chinnam Naidu (2005) 2
SCC 746 : [2005] 1 SCR 1147; Avtar Singh v. Union of India and Others
(2016) 8 SCC 471 : [2016] 7 SCR 445 – relied on.
     R. Radhakrishnan v. Director General of Police & Others (2008)
1 SCC 660 : [2007] 11 SCR 456; Secy., Kendriya Vidyalaya Sangathan
& Others v. Ram Ratan Yadav (2003) 3 SCC 437 : [2003] 2 SCR 361
– referred to.

       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES

     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8510 of
2011.
     From the Judgment and Order dated 16.12.2010 of the High Court
of Calcutta in WPST No. 600 of 2010.
      Appearances:
    Soumya Chakraborty, Sr. Adv., Ms. Astha Sharma, Sanjeev
Kaushik, Advs. for the Appellants.
    Abhijit Kumar Chattopadhyay, Ms. Swati, Sandeep Lamba, Indresh
Chandra Sonkar, Bhaskar Deb, Sayantan Talapatra, Ram Ekbal Roy,
Rameshwar Prasad Goyal, Advs. for the Respondent.
         STATE OF WEST BENGAL v. MITUL KUMAR JANA                         615



       JUDGMENT / ORDER OF THE SUPREME COURT

                               JUDGMENT
     J. K. MAHESHWARI, J.
      1. This appeal arises out of the judgement of the High Court of
Judicature at Calcutta, dated 16.12.2010, passed in ‘WPST No. 600 of
2010’ filed by respondent Mitul Kumar Jana. The High Court by the said
judgment allowed the writ and set-aside the order dated 23.11.2010 passed
by the West Bengal Administrative Tribunal (for short “Tribunal”) and
directed the appellant no. 2, i.e., the Superintendent of Police to appoint the
respondent as constable in the West Bengal police force.
      2. Succinctly stated, facts of this case are that the respondent appeared
before appellant no. 2 – Superintendent of Police, South 24 Parganas, for
measurement, physical efficiency test and for interview on 06.09.2008,
09.09.2008 and 10.09.2008 respectively. He was declared fit in the said
selection, and placed in the merit list of the constables in the West Bengal
Police Force. Pursuant thereto, respondent was supplied with the ‘Police
Verification Roll’ and asked to fill-up the same in his own handwriting. He
deposited the same with the appointing authority within the time schedule.
As per the police verification report sent by the local Police Station, it was
alleged that the respondent was implicated in a criminal case bearing Case
No. 124 of 2007, dated 03.08.2007, registered at Kakdwip Police Station.
After investigation, charge-sheet was filed on 31.08.2007, whereafter, the
trial was pending at the time of his interview and physical test. The police
report further indicated that the respondent was granted anticipatory bail
on 16.08.2007 and regular bail on 27.08.2007.
      3. Upon scrutinizing the said verification form, the authority formed an
opinion that the respondent had suppressed material information regarding
his involvement in a pending criminal case. The verification roll submitted
by the respondent was sent to the Intelligence Branch, West Bengal for
opinion. Vide Memo no. 3875/S – 503-08/S.A. – II/VR, dated 09.02.2009,
the Deputy Inspector General of Police, Intelligence Branch had informed
that the respondent has supressed the fact of his involvement in a criminal
case and as the case against the respondent is sub-judice, no opinion for
his suitability could be given at this stage. In the given facts, order of
616           SUPREME COURT REPORTS                          [2023] 11 S.C.R.


appointment was not issued by the appellant. However, the respondent filed
Original Application No. 343 of 2010 before the Tribunal seeking directions
to issue the letter of appointment on account of his selection for the post
of constable in the West Bengal Police Force. The Authorities filed their
reply and contended that the respondent was involved in a criminal case
and despite having knowledge of the same, he had not disclosed the same
in the verification roll and suppressed the information about the pending
criminal case, hence, he is not suitable for the appointment.
      4. The Tribunal vide order dated 23.11.2010, disposed-off the Original
Application and was of the opinion that it is not a case of suppression of
information by the respondent. It was said that, without his acquittal in the
pending criminal case, direction to issue the letter of appointment cannot
be recommended and observed that, in case the respondent is acquitted, his
case may be considered by the appellant as per rules.
      5. Being aggrieved, the respondent preferred Writ Petition before the
High Court at Calcutta and prayed for appropriate directions. The Court in
the impugned judgement referred to column no. 12 of the verification roll
and opined that the information sought in the said column was of arrest,
detention and conviction. As per details asked in the said column, information
regarding pending criminal case was not required to be furnished. Therefore,
the High Court concurred with the finding of the Tribunal on the issue of
suppression of material information and was of the opinion that because the
respondent has not yet been held guilty in the criminal case by the competent
Court, therefore, presumption of innocence in his favour still remains. Hence,
the appellant was directed to issue the letter of appointment subject to final
outcome of the pending criminal case. Being aggrieved by the said order,
this appeal has been filed by the State of West Bengal.
       6. Learned counsel for the appellants submits that High Court
committed an error in directing appointment of the respondent particularly
during the pendency of a criminal case against him. The said direction would
affect the morale of the police force and undermine the public faith in it.
Emphasizing the object of furnishing the information in the verification
roll, it was urged that the character of a person to judge his suitability to the
post in public employment is a necessary concomitant to avoid defacing of
the Police Department. In support of the said contention, reliance is placed
         STATE OF WEST BENGAL v. MITUL KUMAR JANA                        617
                   [J. K. MAHESHWARI, J.]

on a judgement in the case of “R. Radhakrishnan Vs. Director General
of Police & Others, 2008 (1) SCC 660” to urge that even on acquittal of a
candidate, he can still be denied appointment on account of suppression of
material information regarding pendency of a criminal case.
      7. Per contra, learned counsel for the respondent referring to the
details of column 12 of the verification roll, submits that the information
sought was vague and considering the nature of the information asked, the
respondent was not required to furnish the details of the pending criminal
case. The Tribunal and the High Court have appreciated the said issue and
rightly recorded the finding that it is not a case of suppression of material
information, and the High Court was right in directing the appellant to issue
the letter of appointment subject to the decision in the pending criminal
case. He further contended that, in the said criminal case, respondent has
been honourably acquitted. Therefore, there is no impediment before the
appellants to carry out such directions. Placing reliance on the judgement
of “Secy., Deptt. of Home Secy., A.P. and Others Vs. B. Chinnam Naidu,
(2005) 2 SCC 746”, it is urged that since specific requirement to mention
about the pending criminal case was not sought in the verification roll, the
respondent cannot be held at fault for suppression of material information.
      8. Having heard learned counsel for the parties and on perusal of the
material placed, it is not in dispute that vide judgement dated 04.06.2012,
the learned Judicial Magistrate (First Class), Kakdwip District, South
24 Parganas, acquitted the respondent from the charges of Sections
147/149/447/323/506 of IPC in Criminal Case No. 362/2004. After
appreciating the evidence as brought on record, the Court found that the
prosecution has hopelessly failed to bring home the guilt and prove the
charges against the respondent. On account of acquittal of the accused
persons, the objection regarding pendency of criminal case no more
subsists. In addition, on perusal of the prosecution story of the said case,
the cause of dispute was of egress and ingress to a passage for which the
order of attachment was passed by the Sub-Divisional Magistrate. As
alleged, the accused persons started raising fencing which was opposed by
the complainant. For the said incident, FIR against eight accused persons
including the respondent was registered. In the said judgement, the name of
the respondent was shown as “Mridul Jana” and not his correct name, i.e.,
618          SUPREME COURT REPORTS                          [2023] 11 S.C.R.


“Mitul Kumar Jana”. Be that as it may, as discussed above, the prosecution
has miserably failed to prove the charges. In our considered view, the said
allegations do not constitute any offence affecting moral turpitude and shall
not cause any impediment for public employment to a candidate who got
selected by the due process of law.
       9. In the facts of the case, the other objection raised by the appellant
is related to suppression of material information in the verification roll. For
analysing the sustainability of the said objection, the language used to ask
information in Column No. 12 of verification roll may be relevant and for
ready reference, it is reproduced as under;
      “Have you been arrested, detained or convicted by a court of any
      offence if the answer is ‘yes’ the full particulars of the Arrest or
      detention or conviction and the sentence should be given.
      Answer: No”
      10. Bare perusal of the details of the information sought in the above
column indicates that, it was regarding arrest, detention and conviction by a
Court in any offence. In case the answer was ‘yes’, then full particulars of the
arrest or detention or conviction and sentence were required to be furnished.
In case the answer was in the negative, no other particulars were required
to be furnished. In the case on hand, in reply to the information asked the
respondent gave the answer as “no”. As per the contents of the information
sought and as per the answer given by the respondent, he is not required
to furnish information regarding pending criminal case. Therefore, supply
of such information by the respondent does not fall within the expression
‘suppression of material information’. This Court had an occasion to deal
with the similar issue in the case of B. Chinnam Naidu (supra). The relevant
paragraph of the said judgment is reproduced herein below –
      “9. …The State Government and the Tribunal 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 to accept such
      contention. There was no specific requirement to mention as to whether
         STATE OF WEST BENGAL v. MITUL KUMAR JANA                           619
                   [J. K. MAHESHWARI, J.]

     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.”
      11. In the above case, the Court has distinguished the judgment of
“Kendriya Vidyalaya Sangathan & Others Vs. Ram Ratan Yadav, (2003)
3 SCC 437”, on the pretext that the details of information sought in the
verification roll in said case was different. In the facts of the present case,
the information sought from the respondent in the verification form was
vague. Similar was the position in the case of Chinnam Naidu (supra).
Therefore, the said judgment squarely applies in the facts of this case.
Though in the said case, finding regarding desirability for appointment
of a person in government service was not decided because it was not the
subject matter.
     12. In view of the discussion made herein above, the opinion given
by the Deputy Inspector General of Police, Intelligence Branch, and the
stand taken by the Department before the Tribunal and the High Court
regarding suppression of material information by the respondent cannot be
countenanced. The Tribunal and the High Court have rightly recorded the
finding that it is not a case of suppression of material information and we
affirm such finding. Simultaneously, the criminal case registered against the
respondent were for petty offences. The allegations in the said case were
neither of heinous/serious offences, nor related to an offence involving
moral turpitude. In the said case, the respondent was honourably acquitted
because the prosecution had miserably failed to prove the charges. Hence,
in our view, prima-facie there appears no impediment to issue the order of
appointment in favour of the respondent.
      13. It is relevant to state here that on the issues relating to suppression
of information and/or submitting false information and as to the question of
having been arrested or regarding pendency of a criminal case and effect of
conviction/acquittal in such criminal cases, there were conflicting opinions
of Division Bench judgments of this Court. On making a reference, the said
controversy has been decided in the case of “Avtar Singh Vs. Union of
India and Others, (2016) 8 SCC 471”. The Court after considering various
judgments has taken a holistic approach and summarised certain yardsticks
in Paragraph 38, which are reproduced as thus:
620           SUPREME COURT REPORTS                         [2023] 11 S.C.R.


      “38. 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:
      38.1 Information given to the employer by a candidate as to conviction,
      acquittal or arrest, or pendency of a criminal case, whether before
      or after entering into service must be true and there should be no
      suppression or false mention of required information.
      38.2 While passing order of termination of services or cancellation
      of candidature for giving false information, the employer may take
      notice of special circumstances of the case, if any, while giving such
      information.
      38.3 The employer shall take into consideration the Government
      orders/instructions/rules, applicable to the employee, at the time of
      taking the decision.
      38.4 In case there is suppression or false information of involvement
      in a criminal case where conviction or acquittal had already been
      recorded before filling of the application/verification form and such fact
      later comes to knowledge of employer, any of the following recourse
      appropriate to the case may be adopted : -
      38.4.1 In a case trivial in nature in which conviction had been recorded,
      such as shouting slogans at young age or for a petty offence which
      if disclosed would not have rendered an incumbent unfit for post in
      question, the employer may, in its discretion, ignore such suppression
      of fact or false information by condoning the lapse.
      38.4.2 Where conviction has been recorded in case which is not trivial
      in nature, employer may cancel candidature or terminate services of
      the employee.
      38.4.3 If acquittal had already been recorded in a case involving
      moral turpitude or offence of heinous/serious nature, on technical
      ground and it is not a case of clean acquittal, or benefit of reasonable
      doubt has been given, the employer may consider all relevant facts
      available as to antecedents, and may take appropriate decision as to
      the continuance of the employee.
         STATE OF WEST BENGAL v. MITUL KUMAR JANA                        621
                   [J. K. MAHESHWARI, J.]

     38.5 In a case where the employee has made declaration truthfully of
     a concluded criminal case, the employer still has the right to consider
     antecedents, and cannot be compelled to appoint the candidate.
     38.6 In case when fact has been truthfully declared in character
     verification form regarding pendency of a criminal case of trivial
     nature, employer, in facts and circumstances of the case, in its
     discretion may appoint the candidate subject to decision of such case.
     38.7 In a case of deliberate suppression of fact with respect to multiple
     pending cases such false information by itself will assume significance
     and an employer may pass appropriate order cancelling candidature
     or terminating services as appointment of a person against whom
     multiple criminal cases were pending may not be proper.
     38.8 If criminal case was pending but not known to the candidate
     at the time of filling the form, still it may have adverse impact and
     the appointing authority would take decision after considering the
     seriousness of the crime.
     38.9 In case the employee is confirmed in service, holding Departmental
     enquiry would be necessary before passing order of termination/
     removal or dismissal on the ground of suppression or submitting false
     information in verification form.
     38.10 For determining suppression or false information attestation/
     verification form has to be specific, not vague. Only such information
     which was required to be specifically mentioned has to be disclosed.
     If information not asked for but is relevant comes to knowledge of the
     employer the same can be considered in an objective manner while
     addressing the question of fitness. However, in such cases action cannot
     be taken on basis of suppression or submitting false information as to
     a fact which was not even asked for.
     38.11 Before a person is held guilty of “suppressio veri” or suggestio
     falsi”, knowledge of the fact must be attributable to him.”
     14. As per the said case, para 38.10 comes to the aid of the respondent,
because in this case, the information sought in verification roll was not
specific and vague in nature. The respondent has specifically disclosed the
622            SUPREME COURT REPORTS                       [2023] 11 S.C.R.


information which was required to be furnished. Considering the subsequent
development of the clean acquittal of respondent for the petty offences, it
requires consideration objectively by the authority, about the question of
fitness, ignoring the issue of supressing the information. Even in case where
the information regarding pending criminal case is truthfully furnished
and on acquittal therein, an employer has the discretion to consider the
antecedents while issuing the letter of appointment. The High Court could
not have directed the issuance of the letter of appointment as per para 38.5
of the case of Avtar Singh (supra). In our view, the issuance of order of
appointment is required to be left on the discretion of the employer and the
High Court ought not to have taken away the said discretion. Accordingly,
we modify the order passed by the High Court.
      15. In view of the discussion made herein above, we confirm the
findings of the Tribunal and the High Court on the issue of suppression of
material information. As the respondent was not involved in heinous/serious
offence or any offence involving moral turpitude, and the fact that in the
said criminal case he has been honourably acquitted, therefore, modifying
the order of the High Court, we direct the appellant to consider the case
of the respondent and issue order of appointment to the post of constable
in West Bengal Police Force within a period of four weeks from the date
of passing of this order. Needless to observe that the authorities shall take
note of the discussion made herein above and shall exercise their discretion
judiciously in assessing the suitability and antecedents of the prospective
candidate. It is made further clear that in the event of issuance of the order
of appointment, the respondent would only be entitled to notional benefits
including continuity in service and pay fixation at par with other similarly
situated persons and he would not be entitled for salary and back wages till
the date of his appointment.
      16. Accordingly, this appeal stands disposed-off in the above terms.
Pending application(s), if any, shall also stand disposed-off. No order as
to costs.


Headnotes prepared by :                                       Appeal disposed of.
Divya Pandey