# Dinesh Kumar v. State of U.P. & Ors

- **Citation:** (2022) 5 ILRA 529
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-06
- **Case number:** Writ-A No. 9733 of 2018
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-kumar-v-state-of-u-p-ors-48555
- **Pages:** 5

## Headnote

A. Service Law - The employee can be
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 or acquittal
in a criminal offence. (Para 13)
Writ Petition Rejected. (E-10)

List of Cases cited:

## Text

5 All. Dinesh Kumar Vs. State of U.P. & Ors.
529
more than seven years ago. The writ
petition of the State itself was highly
belated having been filed in the year 2017
and the same came to be dismissed on
22.02.2017, that is, more than five years
ago. We're now in the year 2022. There is
no mention of the factors which led to this
delay in the impugned order. The Court
also notices the inquiry report, according to
which
no
loss
was
caused
to
the
Government on account of any action of
the petitioner. The only error pointed out on
his part was as under:-

"परन्तु भगट्टी की कुटाई के उपराUr 03
माह के vUnj लेपन का कायश सुभनन्धि न
कराये जाने के कारण भनयूंत्रण में भर्भथलता
हेतु आूंभर्क दोष होता है I"

14. On admitted facts as mentioned
in the impugned order where only a minor
punishment of withholding one increment
of one year and recovery of the amount of
one increment which would otherwise be
payable for a year from the petitioner has
been ordered. Nevertheless, in the larger
interest,
the
State
is
granted
one
opportunity to demonstrate before the
Court as to how it seeks to sustain the
impugned order in the light of the above.
This, of course, is without prejudice to the
legal position discussed hereinabove so
that this Court may do substantial justice
under Article 226 of the Constitution of
India.

15. List this case on 23.05.2022
amongst the first ten cases of the day. No
further time shall be granted to the
opposite parties for filing a counter
affidavit.

16. Until further orders, the impugned
order is hereby stayed.

17. The name of Sri R.K. Upadhyay
shall be printed in the cause list as learned
counsel for opposite party no. 2.
----------
(2022)05ILR A529
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.05.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Writ-A No. 9733 of 2018

Dinesh Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Umesh Kumar Yadav, Anagh Shukla, Rahul
Srivastava

Counsel for the Respondents:
C.S.C.

A. Service Law - The employee can be
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 or acquittal
in a criminal offence. (Para 13)
Writ Petition Rejected. (E-10)

List of Cases cited:

1. Jainendra Singh Vs St. of U.P. (2012) 8 SCC
748

2. Rajasthan Rajya Vidyut Prasaran Nigam Ltd.
Vs Anil Kanwariya (2021) 10 SCC 136

3. Daya Shankar Yadav Vs U.O.I. (2010) 14 SCC
103

4. St.of Raj. & ors. Vs Chetan Jeff Civil Appeal
No. 3116 of 2002
(Delivered by Hon'ble Suneet Kumar, J.)
530 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard learned counsel for the
petitioner and learned Standing Counsel
appearing for the State-respondents.

2. Petitioner applied for the post of
Constable
(Civil
Police)
against
an
advertisement issued in 2013, by the
second
respondent-
U.P.
Police
Recruitment
and
Promotion
Board,
Lucknow.
Petitioner
was
declared
successful
in
physical
and
medical
examination, however, he was not sent for
training
alongwith
similarly
situated
candidates.
On
verification
of
the
antecedent of the petitioner, it was
informed
by
the District
Magistrate,
Ambedkar Nagar, that the following cases
are registered against the petitioner:

Sl
No
.
Case
Crime
No.
Under
Sectio
ns
Police
Station
Distri
ct
Statu
s
1
NCR
03/20
13
323/5
04
IPC
Ibrahim
pur
Ambe
dkar
Nagar
Pend
ing
2
FIR
25/20
13
436/5
06
IPC
Ibrahim
pur
Ambe
dkar
Nagar
Pend
ing
3
NCR
38/20
15
352/5
04
IPC
Ibrahim
pur
Ambe
dkar
Nagar
Pend
ing
4
FIR
63/20
15
392/4
11/50
6 IPC
Aliganj Ambe
dkar
Nagar
Acq
uitte
d on
17.0
2.20
17
5
FIR
73/20
15
3/4
Goond
a Act
Ibrahim
pur
Ambe
dkar
Nagar
Acq
uitte
d on
17.0
3.20
18

3. On specific query, learned counsel
for the petitioner submits that on the last
date for submission of the application form
for the post in 2012, admittedly, all the
criminal cases against the petitioner was
pending and it was in the knowledge of the
petitioner, however, the said information
was suppressed and not disclosed in the
relevant column of the form. The status of
the cases is of a later date.

4. By the instant writ petition,
petitioner has raised challenge to the orders
dated 08.08.2016 and 01.08.2017, passed
by
the
third
respondent-
District
Magistrate, Ambedkar Nagar, whereby, the
representation of the petitioner, seeking a
direction
to
the
District
Magistrate,
Ambedkar Nagar, to take steps for
submission of the verification report, has
been
disposed
of
forwarding
the
antecedents of the petitioner to the
competent authority. A further prayer has
been made that a direction be issued to the
State-respondents
to
consider
the
candidature of the petitioner for training,
pursuant to the Government Order dated
28.04.1958.

5. Learned counsel for the petitioner
has confined the writ petition to prayer
clause-(i) as considerable time has since
lapsed and the petitioner, at this stage,
cannot be sent for training. In other words
petitioner seeks quashing of the antecedents
forwarded by the District Magistrate to the
employer.

6. It is not being disputed by the
learned counsel for the petitioner that he
had suppressed the criminal cases pending
against him on the last date of submission
of the application form for the post. The
criminal cases noted herein above are
5 All. Dinesh Kumar Vs. State of U.P. & Ors.
531
serious offences and in any case, it is the
discretion of the employer as to whether to
offer appointment to the petitioner having
regard to the pending criminal cases.

7. In the case of Jainendra Singh v.
State of U.P., (2012) 8 SCC 748, in para
29.4, Supreme Court has observed and held
that
"a
candidate
having
suppressed
material information and/or giving false
information cannot claim right to continue
in service and the employer, having regard
to the nature of employment as well as
other aspects, has the discretion to
terminate his services. In para 29.6, it is
further observed that the person who
suppressed the material information and/or
gives false information cannot claim any
right for appointment or continuity in
service. In para 29.7, it is observed and
held that "the standard expected of a person
intended to serve in 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."

8. In the case of Rajasthan Rajya
Vidyut Prasaran Nigam Limited v. Anil
Kanwariya, (2021) 10 SCC 136, Supreme
Court held that:

9.

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 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. 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. 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 decision such an
employee cannot claim the appointment
and/or continue to be in service as a matter of
right."

10. The police force, a disciplined
force, even if, the candidate is acquitted or
discharged in criminal case, that acquittal or
discharge order will have to be examined to
assess, whether, the candidate is completely
exonerated in the case on merit and whether
his appointment poses a threat to the
discipline of the police force.

11. The learned counsel for the
petitioner submits that petitioner would be
satisfied, at this stage, in the event, the
impugned communication of the third
respondent recording therein the criminal
antecedents of the petitioner is set-aside.
He further submits that in the event of the
communication not being quashed, that
would have an adverse impact on future
appointment of the petitioner.

12. The submission, in my opinion is
misconceived and unfounded. In future
532 INDIAN LAW REPORTS ALLAHABAD SERIES
appointments
petitioner
is
bound
to
disclose all the criminal cases lodged
against
him,
whether,
convicted
or
acquitted. The district authorities are bound
to
inform
the
employer
about
the
antecedents of the petitioner, the lodged
criminal cases against the petitioner would
always be reflected in the report, even upon
acquittal. It is upon the employer to
consider whether having regard to the
criminal
cases,
even
upon
acquittal,
petitioner is fit for appointment.

In Daya Shankar Yadav v. Union of
India, (2010) 14 SCC 103, Supreme 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 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: (SCC pp. 11011, para
15)

"15. ... (a) If the declarant has
answered the questions in the affirmative
and furnished the details of any criminal
case (wherein he was convicted or
acquitted by giving benefit of doubt for
want of evidence), the employer may refuse
to offer him employment (or if already
employed on probation, discharge him from
service), if he is found to be unfit having
regard to the nature and gravity of the
offence/crime in which he was involved.

(b) On the other hand, if the employer
finds that the criminal case disclosed by the
declarant related to offences which were
technical, or of a nature that would not
affect
the
declarant's
fitness
for
employment, or where the declarant had
been honourably acquitted and exonerated,
the employer may ignore the fact that the
declarant had been prosecuted in a criminal
case and proceed to appoint him or
continue him in employment.

(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 the charges or is
acquitted. This is because when there is
suppression or nondisclosure 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 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 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."

13. Thereafter, it is observed and held
that an employee can be 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).
5 All. Vimal Kumar Mishra Vs. State of U.P. & Ors.
533

14. In para 13, of the report Supreme
Court observed and held as under:

"13. In Avtar Singh [Avtar Singh v.
Union of India, (2016) 8 SCC 471, though
this Court was principally concerned with
the question as to nondisclosure or wrong
disclosure of information, it was observed
in para 38.5 that 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 could not be compelled to
appoint such candidate."

15. Recently, the Supreme Court in
State of Rajasthan and others vs. Chetan
Jeff, Civil Appeal No.3116 of 2002,
decided on 11 May, 2022, upon considering
the precedents, affirmed the decision of the
authority
(employer)
in
declining
appointment on the post of Constable as the
candidate had suppressed the information
of pending criminal cases. The Court
observed and held that acquittal or benefit
of Probation of Offenders Act would not be
sufficient to appoint the candidate on the
post of Constable.

16. Having regard to the facts and
circumstances
of
the
case
and
the
proposition of law and precedents, the writ
petition
being
devoid
of
merit,
is
accordingly, dismissed.

17. No cost.
----------

(2022)05ILR A533
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
Writ-A No. 14772 of 2020

Vimal Kumar Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Abhishek Kumar Pandey, Apoorva Tewari

Counsel for the Respondents:
C.S.C., Atul Kumar Dwivedi, Dharmendra Kumar
Dixit, Kazim Ibrahim, Pravin Singh, S.S. Rajawat

A. Service Law - Temporary government
servant
as
also
the
government
servant
appointed on deputation have no right to hold
the post, his services are liable to be terminated
by giving him one month notice without
assigning any reason either as per the terms of
the contract or the statutory rules regulating the
terms and conditions of the service. In the
present case, the Court earlier directed the
reinstatement of the petitioner holding the
termination/repatriation was arbitrary. But the
respondent- State Urban Development Agency
released the salary of the petitioner for the
remaining period of the contract and declined to
renew the contract of appointment further. As
observed and held that SUDA was justified in
not renewing the contract of appointment of the
petitioner
being
based
on
an
objective
assessment of performance and utility of the
petitioner, which was as per the terms and
conditions governing the appointment of the
government servant. (Para 36- 39)

The decision of the respondent to repatriate the
petitioner to his parent department and to not
to renew the contract of the petitioner further
was based on the performance, conduct and
disutility of the petitioner, therefore valid and
non-arbitrary. (Para 41)
Writ Petition Rejected. (E-10)

List of Cases cited:

1. Ashok kumar Ratilal Patel Vs U.O.I. (2012) 7
SCC 757 (distinguished)

2. U.O.I. Vs S.N. Maity (2015) 4 SCC 164
(distinguished)