The State Of Odisha vs Gobinda Behera

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No 893 of 2020 (Arising out of SLP (C) No 3148 of 2020 (Arising out of SLP (C) D No 8200 of 2019)

State of Odisha and Ors .... Appellant(s)

Versus

Gobinda Behera ....Respondent(s)

JUDGMENT

Dr Dhananjaya Y Chandrachud, J

1 Delay condoned.

2 Leave granted.

3 This appeal arises from a judgment and order of a Division Bench of

the High Court of Orissa dated 29 March 2018.

4 The respondent applied for appointment to the post of a Constable in

the Odisha State Police in the 6 th IR Batallion, Khurda on 29 October 2011.

In response to a query, the respondent specifically stated in his application

that he was not involved in any criminal case. He was appointed on 14

December 2011. A verification roll was provided to him, which was to be Signature Not Verified Digitally signed by SANJAY KUMAR Date: 2020.02.04 filled up in terms of Rule 673 of the Orissa Police Rules. On 22 May 2012, 17:05:30 IST Reason:

the Superintendent of Police, Puri informed the Commandant that during

the course of the verification of the character and antecedents of the 2

respondent, it was found that he was involved in Balanga PS Case No 46

of 2009 under Sections 294/323/324/326/336/337/427/379/506/34 of the

Indian Penal Code 18601. On 6 July 2012, the respondent was called

upon to explain why he had submitted a false statement in the verification

roll and in the application for appointment to the post of Constable. The

respondent was discharged from service on 26 July 2012, upon which he

filed a proceeding before the Odisha Administrative Tribunal 2. The Tribunal

rejected the Original Application 3 on the ground that the respondent had

furnished a false declaration. This decision of the Tribunal was reversed

by the High Court, by its impugned judgment. The High Court did so on

the basis of a judgment of this Court in Avtar Singh v Union of India4

(Avtar Singh). The High Court held that the Tribunal had not taken note of

the fact that the criminal proceeding had already been quashed and that

the suppression in the circumstances was of a technical and trivial nature.

The authorities were directed to consider the case of the respondent for

reinstatement in his former post and to grant consequential service and

financial benefits.

5 Upon hearing the learned counsel appearing on behalf of the

appellant and the respondent, the factual position, which has emerged

before the Court, is that the First Information Report in the criminal case

was lodged on 16 June 2009. The respondent surrendered before the

JMFC on 3 August 2009 and was released on bail in view of an order

dated 28 July 2009 which had been passed by the High Court in Bail 1 “IPC” 2 “Tribunal” 3 “OA” 4 (2016) 8 SCC 471 3

Application 10246 of 2009. The respondent applied for the post of a

Constable thereafter on 29 October 2011 and was appointed on 14

December 2011. The respondent moved the High Court under Section

482 of the Code of Criminal Procedure 1973 5 for quashing the criminal

proceedings. The High Court, by its order dated 22 November 2013,

quashed the criminal proceedings on the basis of a compromise between

the parties. This was after the order of discharge from service on 26 July

2012.

6 The position in law has been considered by this Court in a decision of

a three-Judge Bench in Avtar Singh. The summary of the conclusions is

contained in the following extract:

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

38.2. While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.

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

38.4. In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourses appropriate to the case may be adopted:

38.4.1. In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.

5 “CrPC” 4

38.4.2. Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.

38.4.3. If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.

38.5. In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.

38.6. In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion, may appoint the candidate subject to decision of such case.

38.7. In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.

38.8. If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.

38.9. In case the employee is confirmed in service, holding departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.

38.10. For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.

38.11. Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him.” 5

7 The respondent was seeking public employment in the State police

service. His duties, on appointment to the service, would be of a

responsible character, bearing intrinsically on the maintenance of law and

order and with consequences for personal liberty of citizens. To expect

that an applicant for such a position would be truthful in the disclosure of

information sought about the antecedents is a justifiable basis for

assessment of personality and character. The employer can legitimately

conclude that a person who has suppressed material facts does not

deserve to be in its employment.

8 In the present case, the case against the respondent cannot be

regarded as being trivial in nature. That apart, it is evident that, despite

being involved in the criminal case, the respondent suppressed these facts

from the authorities while applying for the post of a Constable in the State

Police. The criminal case was quashed in exercise of the jurisdiction

under Section 482 of CrPC on the basis of a compromise between the

parties much after the order of discharge. Hence, the view which has been

taken by the High Court is palpably unsustainable. The Tribunal was

justified in rejecting the application.

9 We accordingly allow the appeal and set aside the impugned

judgment and order of the High Court dated 29 March 2018. While 6

maintaining the order of the Tribunal, we order and direct that the OA filed

by the respondent shall stand dismissed. There shall be no order as to

costs.

…………...…...….......………………........J. [Dr Dhananjaya Y Chandrachud]

…..…..…....…........……………….…........J. [K M Joseph]

New Delhi;

January 31, 2020 7

ITEM NO.47 COURT NO.7 SECTION XI-A

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

SPECIAL LEAVE PETITION (CIVIL) Diary No(s). 8200/2019

(Arising out of impugned final judgment and order dated 29-03-2018 in WPC No. 21868/2015 passed by the High Court of Orissa at Cuttack)

STATE OF ODISHA & ORS. Petitioner(s)

VERSUS

GOBINDA BEHERA Respondent(s)

(WITH I.R. and IA No.46018/2019-CONDONATION OF DELAY IN FILING and IA No.46026/2019-EXEMPTION FROM FILING O.T.)

Date : 31-01-2020 This petition was called on for hearing today.

CORAM :

HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE K.M. JOSEPH

For Petitioner(s) Mr. Shibashish Misra, AOR Mr. S. Debabrata Reddy, Adv.

Mr. Chandan Kumar Mandal, Adv.

For Respondent(s) Mr. Azim H. Laskar, Adv.

Mr. Sachin Das, Adv.

Mr. Adtiya Kumar Archiya, Adv.

Ms. Sampa Sengupta Ray, Adv.

Mr. Chandra Bhushan Prasad, AOR

UPON hearing the counsel the Court made the following O R D E R

Delay condoned.

Leave granted.

The appeal is allowed in terms of the signed reportable judgment. There shall be no order as to costs.

Pending application, if any, stands disposed of.

(SANJAY KUMAR-I) (SAROJ KUMARI GAUR) AR-CUM-PS COURT MASTER

(Signed reportable judgment is placed on the file) 8