# Surendra Yadav v. State Of U.P. & Ors

- **Citation:** (2023) 2 ILRA 1044
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-31
- **Case number:** Special Appeal Defective No. 381 of 2022
- **Bench:** Rajesh Bindal, C.J. J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-yadav-v-state-of-u-p-ors-49695
- **Pages:** 11

## Headnote

Sri Prateek Sinha, State Law Officer

A.
Service
Law
-
Termination
-
Suppression of
material
fact
-
Uttar
Pradesh Government Department Driver's
Service Rules, 1993 - Rule 17(1) - Once an
employee is appointed to government
service on a regular and permanent basis,
like the present case, a charge about
suppression of the fact of involvement in a
criminal case has not been favoured in
Avtar Singh's case to be dealt with
summarily with termination of services on
just an explanation being called, or a show
cause given. In cases of government servants,
who are regularly appointed, the course of action
that is favoured by the Supreme Court in Avtar
Singh is the holding of disciplinary proceedings
with a proper inquiry to ascertain the charge of
suppression and the involvement of the employee
concerned in the crime. (Para 15)
2 All. Surendra Yadav Vs. State of U.P. & Ors.
1045
In this case, nothing has been pleaded or shown
that the writ petitioner was a temporary hand or
probationer. If he were, he could have been
easily discharged from service. The record
shows that the respondents have proceeded
against the writ petitioner taking him to be a
confirmed employee. Even otherwise, by the
time the impugned order came to be passed,
the writ petitioner was in service for a period of
about four years. In these circumstances, the
imperative course for the respondents required
would be to hold disciplinary proceedings
against the writ petitioner. He could not have
been thrown out by issuing a show cause notice
to him and asking him to respond in 15 days.
The show cause notice was issued to the writ
petitioner on 27.02.2004, to which the writ
petitioner submitted a reply on 15.04.20024, but
the impugned order came to be passed on
21.07.2006. During this long period of time,
regular departmental proceedings could be
conveniently held, where every fact could be
ascertained threadbare. (Para 16)

B. Before a person is held guilty of
suppressio
veri
or
suggestio
falsi,
knowledge
of
the
fact
must
be
attributable to him. The decision in Avtar
Singh also makes it relevant inquiry to the
exercise of powers on ground of suppression of
the fact of involvement in a criminal case,
whether the employee had knowledge of the
fact about his involvement. (Para 15, 16)

It has been urged that the learned Single Judge
has overlooked the parameters laid down in
Avtar Singh's case (infra) and has proceeded to
uphold the termination of the writ petitioner's
services on the ground alone that there was a
criminal trial pending against him, which he did
not disclose at the time of verification. It is
submitted that the writ petitioner did not have
knowledge about the FIR at the time he filled up
the verification form. Therefore, the nondisclosure would not amount to concealment.
The petitioner is scantly educated, to wit, up to
the 8th standard and was hardly aware about
the importance or consequences of nondisclosure in the attestation form relating to the
case and once the writ petitioner has been
acquitted, the allegations against him stand
wiped out. (Para 10)

C. Mere suppression of material/false
information in a given case does not mean
that
the
employer
can
arbitrarily
discharge/terminate the employee from
service. Mere suppression of material/false
information regardless of the fact whether there
is a conviction or acquittal has been recorded,
the
employee/recruit
is
not
to
be
discharged/terminated
axiomatically
from
service just by a stroke of pen. At the same
time, the effect of suppression of material/false
information involving in a criminal case, if any,
is left for the employer to consider all the
relevant facts and circumstances available as to
antecedents and keeping in view the objective
criteria and the relevant service rules into
consideration, while taking appropriate decision
regarding
continuance/suitability
of
the
employee into service. (Para 17)

D. A formula conclusion from certain
objective facts ough

## Text

1044 INDIAN LAW REPORTS ALLAHABAD SERIES
decision
of
the
Apex
Court
dated
December 12, 2022, The State of Uttar
Pradesh vs. Karunesh Kumar & Ors.
(supra); and

(b) Short-listing criteria may be
made stringent depending on the number of
applicants as to make it convenient for the
Selection Body to effectively interview the
short-listed
candidates
(vide
Madhya
Pradesh Public Service Commission vs.
Navnit Kumar Potdar and another
(supra)
and
B.
Ramakichenin
@
Balagandhi vs. Union of India and others
(supra).

32. Apart from above, the shortlisting guidelines were revised pursuant to
a decision taken on 31.08.2010 by the
Executive Council as to make it in
consonance with UGC Regulations, 2010
which came into effect from 30.06.2010.
The decision to revise the short-listing
guidelines was taken before the last date
fixed for receipt of the application. Thus,
for all the reasons above, in our considered
view, the learned Single Judge fell in error
in allowing the writ petition of Dr. Alok
Kumar. More so, when the learned Single
Judge declined the first prayer of the said
petitioner.
Consequently,
the
Special
Appeal Nos. 17 of 2023 and 18 of 2023 are
entitled to be allowed and are hereby
allowed. The judgment and order of the
learned Single Judge dated 02.09.2022
passed in Writ Petition No. 4963 of 2011 is
hereby set aside and Writ A No. 4963 of
2011 is dismissed.

33. ` As we have allowed the above
two appeals and have dismissed Writ A No.
4963 of 2011 filed by Dr. Alok Kumar, the
Special Appeal No. 19 of 2023 filed by Dr.
Rashmi Ranjan is partly allowed and Writ
A No. 45120 of 2013 filed by Dr. Rashmi
Ranjan is disposed off by giving liberty to
the
University
to
complete
the
selection/appointment process on the basis
of interview marks awarded to the
candidates who were short-listed for
interview on the basis of revised shortlisting guidelines. There shall be no order
as to costs.
----------
(2023) 2 ILRA 1044
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.01.2023

BEFORE

THE HON'BLE RAJESH BINDAL,C.J.
THE HON'BLE J.J. MUNIR, J.

Special Appeal Defective No. 381 of 2022

Surendra Yadav ...Appellant
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Vivek Saran

Counsel for the Respondents:
Sri Prateek Sinha, State Law Officer

A.
Service
Law
-
Termination
-
Suppression of
material
fact
-
Uttar
Pradesh Government Department Driver's
Service Rules, 1993 - Rule 17(1) - Once an
employee is appointed to government
service on a regular and permanent basis,
like the present case, a charge about
suppression of the fact of involvement in a
criminal case has not been favoured in
Avtar Singh's case to be dealt with
summarily with termination of services on
just an explanation being called, or a show
cause given. In cases of government servants,
who are regularly appointed, the course of action
that is favoured by the Supreme Court in Avtar
Singh is the holding of disciplinary proceedings
with a proper inquiry to ascertain the charge of
suppression and the involvement of the employee
concerned in the crime. (Para 15)
2 All. Surendra Yadav Vs. State of U.P. & Ors.
1045
In this case, nothing has been pleaded or shown
that the writ petitioner was a temporary hand or
probationer. If he were, he could have been
easily discharged from service. The record
shows that the respondents have proceeded
against the writ petitioner taking him to be a
confirmed employee. Even otherwise, by the
time the impugned order came to be passed,
the writ petitioner was in service for a period of
about four years. In these circumstances, the
imperative course for the respondents required
would be to hold disciplinary proceedings
against the writ petitioner. He could not have
been thrown out by issuing a show cause notice
to him and asking him to respond in 15 days.
The show cause notice was issued to the writ
petitioner on 27.02.2004, to which the writ
petitioner submitted a reply on 15.04.20024, but
the impugned order came to be passed on
21.07.2006. During this long period of time,
regular departmental proceedings could be
conveniently held, where every fact could be
ascertained threadbare. (Para 16)

B. Before a person is held guilty of
suppressio
veri
or
suggestio
falsi,
knowledge
of
the
fact
must
be
attributable to him. The decision in Avtar
Singh also makes it relevant inquiry to the
exercise of powers on ground of suppression of
the fact of involvement in a criminal case,
whether the employee had knowledge of the
fact about his involvement. (Para 15, 16)

It has been urged that the learned Single Judge
has overlooked the parameters laid down in
Avtar Singh's case (infra) and has proceeded to
uphold the termination of the writ petitioner's
services on the ground alone that there was a
criminal trial pending against him, which he did
not disclose at the time of verification. It is
submitted that the writ petitioner did not have
knowledge about the FIR at the time he filled up
the verification form. Therefore, the nondisclosure would not amount to concealment.
The petitioner is scantly educated, to wit, up to
the 8th standard and was hardly aware about
the importance or consequences of nondisclosure in the attestation form relating to the
case and once the writ petitioner has been
acquitted, the allegations against him stand
wiped out. (Para 10)

C. Mere suppression of material/false
information in a given case does not mean
that
the
employer
can
arbitrarily
discharge/terminate the employee from
service. Mere suppression of material/false
information regardless of the fact whether there
is a conviction or acquittal has been recorded,
the
employee/recruit
is
not
to
be
discharged/terminated
axiomatically
from
service just by a stroke of pen. At the same
time, the effect of suppression of material/false
information involving in a criminal case, if any,
is left for the employer to consider all the
relevant facts and circumstances available as to
antecedents and keeping in view the objective
criteria and the relevant service rules into
consideration, while taking appropriate decision
regarding
continuance/suitability
of
the
employee into service. (Para 17)

D. A formula conclusion from certain
objective facts ought not to be the
respondents' approach. Else, the action of
the respondents would be arbitrary. A
perusal of the impugned orders, that have been
passed both by the Excise Commissioner and
the State Government, show not the slightest
consideration of the various factors that ought
to be taken into account before a decision is
taken to terminate a employee's services on
ground of suppression of the fact about his
involvement in a criminal case. Both the orders
betray
mechanical
approach
and
formula
decision making that the crime being one
involving a charge u/s 308 IPC, which was
registered on the date of verification by the writ
petitioner, but not disclosed, must inevitably
lead to termination of the writ petitioner's
services. This is an utterly flawed approach
apart from the fact that a regular departmental
inquiry ought to have been held in this case.
(Para 18, 19)

Special appeal allowed. (E-4)
The impugned judgment and order passed by
the learned Single Judge is set aside. The writ
petition is allowed. The impugned order dated
July
21,
2006
passed
by
the
Excise
Commissioner, U.P., Allahabad and the order
dated March, 10, 2008 by the Principal
Secretary,
Government
of
U.P.,
Excise
Department, Lucknow are hereby quashed.
1046 INDIAN LAW REPORTS ALLAHABAD SERIES
Precedent followed:

1. Avtar Singh Vs U.O.I. & ors., (2016) 8 SCC
471 (Para 9)

2. U.O.I. & ors. Vs Methu Meda, (2022) 1 SCC 1
(Para 9)

3. Pawan Kumar Vs U.O.I. & anr., 2022 SCC
OnLine SC 532 (Para 17)

Present
special
appeal
assails
the
judgment and order dated 13.07.2022
passed by Hon'ble Single Judge.

(Delivered by Hon'ble Rajesh Bindal, C.J.
&
Hon'ble J.J. Munir, J.)

1. This is a writ petitioner's appeal,
arising out of a judgment and order passed
by the learned Single Judge, dismissing
Writ-A No. 40480 of 2008 preferred by the
petitioner, questioning an order dated July
21, 2006, terminating his services, as also
the order dated March 10, 2008 passed by
the State Government, dismissing the writ
petitioner's departmental appeal.

2. The facts giving rise to the present
appeal are these:

The writ petitioner was appointed
as a driver by the Excise Commissioner,
Uttar Pradesh vide order dated May 5, 2003
against a substantive and vacant post. The
writ petitioner was selected by a duly
constituted
Selection
Committee
in
accordance with Rule 17(1) of the Uttar
Pradesh Government Department Driver's
Service Rules, 1993. His name was placed
in the letter of appointment, that carried
names of all appointees, at serial No.5 of
the list of appointees in the OBC
Categories. At the time of appointment, the
writ petitioner was required to fill up a
verification form carrying all necessary
details relating to him. The writ petitioner
duly filled up the form, disclosing all
necessary information. The form aforesaid
was filled up on May 12, 2003. After the
aforesaid formality was over, the writ
petitioner was permitted to join as a driver
in the Excise Department on May 17, 2003
and since then he has been performing his
duties regularly, as he says to the
satisfaction of his superiors.

3. The writ petitioner was initially
posted at the Govardhan Check Post in
District Mathura and thereafter transferred
to District Maharajganj vide order order
dated May 30, 2005. It appears that on
February 27, 2004, a show cause notice
was issued to the writ petitioner, saying
that he had made an incorrect declaration
with regard to the non-pendency of any
criminal case against him, inasmuch as
according to a report by the S.S.P.,
Gorakhpur, Case Crime No. 302 of 2002,
under Sections 323, 504, 308, 506 IPC, P.S.
Shahjanwa,
District
Gorakhpur
was
pending against him. The writ petitioner
says that he submitted a reply to the show
cause notice on April, 15, 2004, taking a
stand that he had not concealed any
information with regard to pendency of
Crime
No.
302
of
2002.

4. It is the writ petitioner's case that
the aforesaid crime was registered due to a
dispute in the family amongst co-sharers
relating to agricultural land. He did not
have any information about the pendency
of the crime when he filled up his
verification form, saying that there was no
case against him. It was also his defence in
the reply that his name had been mentioned
in the crime due to the family dispute
without any basis to it. There is also a
mention of the fact by the writ petitioner in
the petition that the case was lodged against
him at the instance of a Constable Driver,
2 All. Surendra Yadav Vs. State of U.P. & Ors.
1047
Ravindra Nath Yadav, posted in the office
of the Director General of Police, U.P.,
Lucknow, who had misused his position to
get a false case registered against the writ
petitioner and his family members. It is
also pleaded in the writ petition that the
writ petitioner's family have already lodged
an FIR against Ravindra Nath Yadav vide
Crime No. 302-A of 2002, under Sections
323, 308, 504, 506, 325 IPC, P.S.
Shahjanwa, District Gorakhpur. The writ
petitioner after trial in Sessions Trial No.
116 of 2004, State Vs. Virai and others, has
been acquitted by the Additional Sessions
Judge vide judgment and order dated
August 14, 2006. Even before that
judgment came, the Excise Commissioner,
looking into the explanation submitted by
the writ petitioner, in an arbitrary and
mechanical fashion discarded his reply and
terminated the writ petitioner's services
vide order dated July 21, 2006.

5. The writ petitioner's case is that the
order dated July 21, 2006 was passed
without adequate opportunity of hearing
and prior to that order, neither disciplinary
proceedings were initiated, a charge sheet
issued or departmental inquiry held. The
writ petitioner on August 18, 2006 made a
representation to the Commissioner, Excise
Department, Allahabad saying that he has
never been convicted in any case and so far
as Crime No. 302 of 2002, under Sections
323, 504, 308, 506 IPC is concerned, it was
lodged behind his back, about which he had
no information until time he filled up his
verification form. On August 19, 2006, the
Additional
Commissioner,
Excise
Department,
Maharajganj
made
an
endorsement
on
the
writ
petitioner's
representation to the Commissioner, Excise
Department, Allahabad, requesting the
Commissioner
to
consider
the
writ
petitioner's case sympathetically.

6. The writ petitioner on his part
preferred a departmental appeal against the
order of termination of his services dated
July 21, 2006 to the Principal Secretary,
Excise Department, Government of U.P.,
Lucknow. The Principal Secretary, acting
for the State Government, however, by the
other order impugned in the writ petition
dated March 10, 2008, dismissed the writ
petitioner's appeal and affirmed the order
terminating his services dated July 21,
2006.

7. It was in these circumstances that
the writ petitioner instituted the present
writ petition, which came up before the
learned Single Judge after exchange of
affidavits. The learned Single Judge by the
judgment
and
order
impugned
has
dismissed the writ petition, leading the writ
petitioner to prefer the present appeal under
Chapter VIII Rule 5 of the Rules of the
Court.

8. Heard Mr. Vivek Saran, learned
Counsel for the writ petitioner and Mr.
Prateek Sinha, learned State Law Officer
appearing on behalf of the respondents.

9. A perusal of the impugned
judgment passed by the learned Single
Judge shows that the learned Judge has
taken into account the fact that the writ
petitioner suppressed, at the time of his
appointment, material information that he
was facing trial in a criminal case under
Sections 323, 504, 308, 506 IPC. The
learned Judge also expressed agreement
with the respondents in concluding that the
judgment of acquittal, that was passed in
the writ petitioner's case, was founded on a
compromise, where prosecution witnesses
contradicted themselves. The learned Judge
has applied the parameters of the law laid
down in Avtar Singh v. Union of India
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
and others, (2016) 8 SCC 471 and Union
of India and others v. Methu Meda,
(2022) 1 SCC 1 to hold that there was
suppression of material facts by the writ
petitioner, and further, that no benefit could
be extended to the writ petitioner on ground
that he was acquitted, because the charge
under Section 308 IPC was not one of a
trivial nature. It was also held that the
acquittal was not a clean acquittal.

10. Before this Court, Mr. Vivek
Saran, learned Counsel for the writ
petitioner has urged that the learned Single
Judge has overlooked the parameters laid
down in Avtar Singh's case (supra), in
that, that he has not assessed the impact of
the case against him for the purpose of
judging the writ petitioner's suitability and
fitness for the post that he holds, that is to
say, a driver. It is argued that the learned
Single Judge has proceeded to uphold the
termination of the writ petitioner's services
on the ground alone that there was a
criminal trial pending against him, which
he did not disclose at the time of
verification. It is also urged that the writ
petitioner did not have knowledge about
the FIR at the time he filled up the
verification form. Therefore, the nondisclosure
would
not
amount
to
concealment. The petitioner is scantly
educated, to wit, up to the 8th standard and
was hardly aware about the importance or
consequences of non-disclosure in the
attestation form relating to the case. It is in
the end submitted by the learned Counsel
that once the writ petitioner has been
acquitted, the allegations against him stand
wiped out.

11. Mr. Prateek Sinha, learned State
Law Officer has supported the impugned
judgment and says that the writ petitioner
was involved in a heinous offence. It was
his duty to disclose the fact at the time he
filled up his verification form. According to
Mr. Sinha, the writ petitioner's misconduct
emanates
from
non-disclosure
and
suppression of the fact when he filled up
the form, quite apart from his unsuitability
for the post given the fact that was involved
in a heinous offence. It is also argued that
the writ petitioner's criminal propensities
cannot be held wiped out, because the
judgment passed by the learned Additional
Sessions Judge shows that the acquittal was
a consequence of the prosecution witnesses
turning hostile in the background of a
compromise entered into between parties.
The submission, therefore, is that this is not
a case where the law in Avtar Singh's case
would come to the writ petitioner's rescue.

12. The thrust of the writ petitioner's
defence before the respondents was that the
day he filled up his verification form, to
wit, May 12, 2003, he did not know that an
FIR had been registered against him on
July 31, 2002. The respondents have not
believed this stand of the writ petitioner
and in the counter affidavit, they say that it
is not possible that about an FIR registered
against the writ petitioner on July 31, 2002,
he would not know until May 12, 2003. It
is a possibility in the opinion of this Court
both ways. The writ petitioner has
consistently taken a stand that he was never
arrested in the crime or sent to jail. Had he
been arrested and bailed out, those
documents would clearly indicate whether
he had knowledge or not on the date, he
filled up the verification form, that is to
say, May 12, 2003. The respondents ought
to have ascertained that fact, because the
writ petitioner's stance is that he was never
arrested. A perusal of the judgment passed
by the learned Sessions Judge carries one
important fact about the matter. It mentions
that the case was committed by the
2 All. Surendra Yadav Vs. State of U.P. & Ors.
1049
Magistrate to the Sessions in the month of
March, 2004. The date is not clearly
mentioned and it is not material either. The
reason is that by time the case was
committed to the Sessions, the writ
petitioner must have appeared and secured
bail before committal. That day is in the
month of March, 2004. Therefore, the
possibility cannot be ruled out that on May
12, 2003, when the writ petitioner filled up
the verification form, he did not know
about the crime altogether.

13. It is the writ petitioner's case that
it was a sudden fight over land between his
family members and co-sharers. In the FIR,
no doubt, the petitioner has been nominated
with a role of assault with a Kudal. It could
be true or untrue. But, given the fact that
the witnesses have turned hostile and
contradicted themselves with parties in the
backdrop entering into a compromise, it
cannot be said with certainty if the
petitioner was indeed involved. It is
possible that he was. And, it is equally
possible that his name was dragged in by a
relative or a co-sharer out of malice and illwill and by that time he had been selected
in government service.

14. In judging the truth of these
allegations and proceeding to take action,
the State employers cannot adopt thumb
rules or straitjacket formulae. There are
some hard realities in the social milieu of
Indian way of life, particularly the rural
areas, where the prospect of a young man
from another's family joining government
service, more often than not, evokes base
emotions of jealousy and hatred amongst
relatives, co-sharers and friends, who wish
the government appointment undone with
no ostensible gain to themselves. Many
FIRs of this kind would be noticed to be
lodged on the eve of selection or
appointment of young men to government
jobs. One might think that what the learned
Counsel for the State says is the view to
follow in the case of a heinous crime.
Because after all, if a heinous crime has
been committed, one cannot think that the
corpus delicti is a creation of jealousy or
machination. In a situation of this kind,
Avtar
Singh's
case
lays
down
comprehensive guidelines, which ought to
be followed before taking action.

15. It is perhaps for the said reason that
once an employee is appointed to government
service on a regular and permanent basis, like
the present case, a charge about suppression of
the fact of involvement in a criminal case has
not been favoured in Avtar Singh's case to be
dealt with summarily with termination of
services on just an explanation being called, or a
show cause given. In cases of government
servants, who are regularly appointed, the
course of action that is favoured by the
Supreme Court in Avtar Singh is the holding
of disciplinary proceedings with a proper
inquiry to ascertain the charge of suppression
and the involvement of the employee concerned
in the crime. In this connection, reference may
be made to the comprehensive guidelines laid
down by the Supreme Court in Avtar Singh that
the employer has to be guided by before taking
a decision to terminate an employee's services,
who has held back information about
involvement in a criminal case or conviction
etc. In Avtar Singh, it has been held:

"38. We have noticed various
decisions and tried to explain and reconcile
them as far as possible. In view of the aforesaid
discussion, we summarise 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
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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.
2 All. Surendra Yadav Vs. State of U.P. & Ors.
1051

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."

16. Now, in this case, nothing has
been pleaded or shown that the writ
petitioner was a temporary hand or
probationer. He was regularly selected and
appointed to a substantive post. The order
of termination from service dated July 21,
2006 or the show cause notice dated
February 27, 2004, does not show, by as
much as a hint, that the writ petitioner was
a probationer. If he were, he could have
been easily discharged from service. The
record shows that the respondents have
proceeded against the writ petitioner taking
him to be a confirmed employee. Even
otherwise, by the time the impugned order
came to be passed, the writ petitioner was
in service for a period of about four years.
In these circumstances, given the various
facts, that have to be inquired into before
the decision to terminate an employee's
services on ground of suppression about
involvement in a criminal case is taken, the
imperative course for the respondents
required would be to hold disciplinary
proceedings against the writ petitioner. He
could not have been thrown out by issuing
a show cause notice to him and asking him
to respond in 15 days. Surprisingly, in this
case, the show cause notice was issued to
the writ petitioner on February 27, 2004, to
which the writ petitioner submitted a reply
on April 15, 2004, but the impugned order
came to be passed on July 21, 2006. During
this
long
period
of
time,
regular
departmental
proceedings
could
be
conveniently held, where every fact could
be ascertained threadbare. As already
remarked, the decision in Avtar Singh also
makes it relevant inquiry to the exercise of
powers on ground of suppression of the fact
of involvement in a criminal case, whether
the employee had knowledge of the fact
about his involvement. In this connection,
Paragraph No. 38.11 of the report in Avtar
Singh is relevant. The necessity to hold a
departmental inquiry against a confirmed
employee is mentioned in Paragraph No.
38.9 of the report in Avtar Singh. That is
why this Court is inclined to think that a
regular departmental inquiry ought to be
held in such cases. There are many
parameters
that
the
employer
must
ascertain before deciding to exercise their
discretion to terminate an employee from
service, who has suppressed the fact about
involvement in a criminal case. These
various facts have been elaborately laid
down in Avtar Singh's case, where it is
observed:

"28. This Court has also opined
that before a person is held guilty of
suppression of a fact it has to be considered
whether verification form is precise and is
not vague, and what it required to disclose.
In Daya Shankar [Daya Shankar Yadav v.
Union of India, (2010) 14 SCC 103 :
(2011) 2 SCC (L&S) 439] it was held that
in case verification form is vague no fault
can be found on the ground of suppression.
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
However, facts which have come to
knowledge it has to be determined by
employer
whether
antecedents
of
incumbent are good for service, to hold
someone guilty of suppression, query in the
form has to be specific. Similarly, in B.
Chinnam Naidu [Deptt. of Home, A.P. v. B.
Chinnam Naidu, (2005) 2 SCC 746 : 2005
SCC
(L&S)
323]
when
column
in
verification form required to disclose
detention or conviction, it did not require to
disclose a pending criminal case or fact of
arrest, removal on the ground of material
suppression of pending case and arrest was
set aside as that was not required to be
disclosed.

29.
The
verification
of
antecedents is necessary to find out fitness
of incumbent, in the process if a declarant
is found to be of good moral character on
due verification of antecedents, merely by
suppression of involvement in trivial
offence which was not pending on date of
filling attestation form, whether he may be
deprived of employment? There may be
case of involving moral turpitude/serious
offence in which employee has been
acquitted but due to technical reasons or
giving benefit of doubt. There may be
situation when person has been convicted
of an offence before filling verification
form or case is pending and information
regarding it has been suppressed, whether
employer should wait till outcome of
pending criminal case to take a decision or
in case when action has been initiated there
is already conclusion of criminal case
resulting in conviction/acquittal as the case
may be. The situation may arise for
consideration of various aspects in a case
where disclosure has been made truthfully
of required information, then also authority
is required to consider and verify fitness for
appointment.
Similarly
in
case
of
suppression also, if in the process of
verification
of
information,
certain
information comes to notice then also
employer is required to take a decision
considering various aspects before holding
incumbent as unfit. If on verification of
antecedents a person is found fit at the
same time authority has to consider effect
of suppression of a fact that he was tried for
trivial offence which does not render him
unfit, what importance to be attached to
such non-disclosure. Can there be single
yardstick to deal with all kinds of cases?

30. The
employer
is
given
"discretion" to terminate or otherwise to
condone the omission. Even otherwise,
once employer has the power to take a
decision when at the time of filling
verification form declarant has already
been convicted/acquitted, in such a case, it
becomes obvious that all the facts and
attending circumstances, including impact
of suppression or false information are
taken into consideration while adjudging
suitability of an incumbent for services in
question. In case the employer comes to the
conclusion that suppression is immaterial
and even if facts would have been disclosed
it would not have adversely affected fitness
of an incumbent, for reasons to be
recorded, it has power to condone the lapse.
However, while doing so employer has to
act prudently on due consideration of
nature of post and duties to be rendered.
For higher officials/higher posts, standard
has to be very high and even slightest false
information or suppression may by itself
render a person unsuitable for the post.
However, same standard cannot be applied
to each and every post. In concluded
criminal cases, it has to be seen what has
been suppressed is material fact and would
have rendered an incumbent unfit for
appointment. An employer would be
2 All. Surendra Yadav Vs. State of U.P. & Ors.
1053
justified in not appointing or if appointed,
to terminate services of such incumbent on
due consideration of various aspects. Even
if disclosure has been made truthfully, the
employer has the right to consider fitness
and while doing so effect of conviction and
background facts of case, nature of offence,
etc. have to be considered. Even if acquittal
has been made, employer may consider
nature of offence, whether acquittal is
honourable or giving benefit of doubt on
technical reasons and decline to appoint a
person who is unfit or of dubious character.
In case employer comes to conclusion that
conviction or ground of acquittal in
criminal case would not affect the fitness
for
employment,
incumbent
may
be
appointed or continued in service."

17. It would also be relevant to
inquire in this case that given the nature of
the crime alleged against the writ petitioner
on one hand and the nature and level of the
writ petitioner's job on the other, would the
employer find him unsuitable to hold it. All
of this would require careful consideration
and a regular departmental inquiry, which
have not been undertaken in this case.
There is further guidance by the Supreme
Court on this point in the recent decision of
their Lordships in Pawan Kumar v. Union
of India and another, 2022 SCC OnLine
SC 532. In Pawan Kumar (supra), it has
been observed:

"13. What emerges from the
exposition as laid down by this Court is
that by mere suppression of material/false
information regardless of the fact whether
there is a conviction or acquittal has been
recorded, the employee/recruit is not to be
discharged/terminated axiomatically from
service just by a stroke of pen. At the same
time,
the
effect
of
suppression
of
material/false information involving in a
criminal case, if any, is left for the
employer to consider all the relevant facts
and
circumstances
available
as
to
antecedents and keeping in view the
objective criteria and the relevant service
rules into consideration, while taking
appropriate decision regarding continuance/
suitability of the employee into service.
What being noticed by this Court is that
mere
suppression
of
material/false
information in a given case does not mean
that the employer can arbitrarily discharge/
terminate the employee from service."

18. Here, a perusal of the impugned
orders, that have been passed both by the
Excise
Commissioner
and
the
State
Government,
show
not
the
slightest
consideration of the various factors that
ought to be taken into account before a
decision is taken to terminate a employee's
services on ground of suppression of the
fact about his involvement in a criminal
case. Both the orders betray mechanical
approach and formula decision making that
the crime being one involving a charge
under Section 308 IPC, which was
registered on the date of verification by the
writ petitioner, but not disclosed, must
inevitably lead to termination of the writ
petitioner's services. This, in our considered
opinion, is an utterly flawed approach. This
we say quite apart from the fact that a
regular departmental inquiry ought to have
been held in this case.

19. We may not be misunderstood to
say that it is not open to the respondents
still to take the same view after holding
regular
departmental
proceedings
and
carefully considering the matter on all
parameters. All that we say is that a
formula conclusion from certain objective
facts ought not to be the respondents'
approach.
Else,
the
action
of
the
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
respondents would be arbitrary as is the
case with the orders impugned here.

20. In the circumstances, this appeal
succeeds and is allowed. The impugned
judgment and order passed by the learned
Single Judge is set aside. The writ petition
is allowed. The impugned order dated July
21,
2006
passed
by
the
Excise
Commissioner, U.P., Allahabad and the
order dated March, 10, 2008 by the
Principal Secretary, Government of U.P.,
Excise Department, Lucknow are hereby
quashed. The writ petitioner shall be
entitled to be reinstated in service forthwith
with
continuity
of
service
and
all
consequential benefits on a notional basis,
including pay, seniority etc. However, the
writ petitioner shall not be entitled to
arrears of salary for the period, during
which he was not in service. It would be
open to the respondents to issue the writ
petitioner
a
charge
sheet
and
hold
disciplinary proceedings in accordance
with law.
----------
(2023) 2 ILRA 1054
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 10560 of 2020
with
Writ-A No. 2190 of 2020
with
Writ-A No. 21463 of 2019

Arvind Singh & Ors. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri R.K. Ojha (Sr. Advocate). Sri Chandra
Shekhar Singh, Sri Shivendu Ojha
Counsel for the Respondents:
C.S.C.

A.
Education
Law
-
Retiral
Benefits/Pension - Right of Children to Free
and Compulsory Education Act, 2009; Uttar
Pradesh Recognized Basic Schools (Recruitment
and Conditions of Service of Teachers and other
Conditions) Rules, 1975; Uttar Pradesh Basic
Education Act, 1972; Societies Registration Act,
1860; Uttar Pradesh St. Aided-Educational
Institution Employee's Contributory Provident
Fund-Insurance-Pension
Rules,
1964; Uttar
Pradesh Junior High School (Payment of Salaries
of Teachers and other Employees) Act, 1978;
Uttar Pradesh High School and Intermediate
Colleges (Payment of Salaries of Teachers and
Other Employees) Act, 1971; Uttar Pradesh
Recognized Basic Schools (Junior High Schools)
(Recruitment and Conditions of Service of
Teachers) Rules, 1978.

Anyone is free to establish an educational
institution, but it is well settled that no
one has a right to seek affiliation or grantin-aid from the St. to fund that enterprise.
This
is
so
notwithstanding
the
introduction of Article 21-A in Chapter III
and
its
statutory
implementation
by
enactment of the Act of 2009. (Para 34)

If the St. have taken a policy decision that they
would not fund education where private
institutions have been established, exclusively
teaching Classes I to V, there is no right
inhering in anyone to compel the St. to extend
grant-in-aid to support pensions to retired
teachers of such private institutions, under the
Rules 1964, merely because a contingent grant
has been provided by the Social Welfare
Department to support payment of salaries to
teachers, subject to the condition of providing
primary education to a certain class of children
in particular strength. (Para 38)

B. A plain reading of Rules 3 and 4 of the
Rules of 1964, shows that they apply to
permanent employees, serving in St. aided
educational institutions, whether run by a
Local Body or by a private management.
The condition for application of the Rules of
1964 is recognition by a competent Authority for