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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)

J U D G M E N T  

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 6th 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

filled up in terms of Rule 673 of the Orissa Police Rules.  On 22 May 2012,

the Superintendent of Police, Puri informed the Commandant that during

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

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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 Tribunal2.  The Tribunal

rejected the Original Application3 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

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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 19735 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”

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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.”

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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

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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

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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)

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