SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Swapnil Parab vs The Director Bhabha Atomic … on 24 July, 2019

Sherla V.

wp.2923.2018_2.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O.O.C.J.

WRIT PETITION NO.2923 OF 2018

Swapnil Parab … Petitioner
Vs
The Director,
… Respondent
Bhabha Atomic Research Center Ors.

Mr.Mayur Agarwal i/b SSPA Law Firm for the Petitioner

Mr.Neel Helekar with Mr.Prasanjit Khosla for the Respondent –
Union of India

CORAM: AKIL KURESHI
S.J. KATHAWALLA, JJ.

DATED: JULY 24, 2019

P.C.:

1. This petition is filed by the original applicant of Original

Application No.382 of 2018 which came to be dismissed by Central

Administrative Tribunal, Mumbai, by impugned judgment dated

25.6.2018.

2. Brief facts are as under:

The respondent – organisation i.e., Bhabha Atomic Research

Center (for short, ‘BARC’) issued public advertisement inviting

Page 1 of 11

::: Uploaded on – 25/07/2019 26/07/2019 01:00:52 :::
wp.2923.2018_2.doc

applications from eligible candidates for the post of Hospital Work

Assistant. The petitioner was eligible for such post. He had

applied and was selected by the respondents for the post in

question. Before appointing the petitioner, he was required to

make a declaration which is titled as “Pre Recruitment Formalities”.

He had to make necessary declarations which would include his

character antecedents. The preamble to this attestation form put

the petitioner to guard that any false declaration may result in

cancellation of his appointment. The relevant portion of this

attestation form reads as under:

“1. The furnishing of false information or suppression of
any factual information in the Attestation Form would be a
disqualification; and is likely to render the candidate unfit for
employment under the Government.

2. If detained, arrested, prosecuted, bound down, fined,
convicted, debarred, acquitted etc. subsequent to the
completion and submission of this form, the details should be
communicated immediately to the authorities to whom the
attestation form has been sent earlier, failing which it will be
deemed to be a suppression of factual information.

3. If the fact that false information has been furnished or
that there has been suppression of any factual information in
the attestation form comes to notice at any time during the
service of a person his services would be liable to be
terminated.”

Page 2 of 11

::: Uploaded on – 25/07/2019 26/07/2019 01:00:52 :::

wp.2923.2018_2.doc

3. In the attestation form, the employer had asked the petitioner

to make a declaration whether he has ever been arrested /

prosecuted / kept under detention. He was also asked to declare if

he was charged before the Court with any offence for which he

was convicted, conditionally discharged, placed on probation or

bound down or acquitted. To all these questions, he had answered

in the negative.

4. The admitted position, however, is that C.R. No.189 of 2012

was lodged against the petitioner before the concerned police

station alleging offences punishable under sections 323, 324, 504

r/w 34 of the Indian Penal Code on the date of making the said

declaration which happened to be in January, 2016. Admittedly,

this criminal case was pending against him. He was later on

acquitted by judgment dated 8.6.2016. However, the fact remains

that on the date of filing of attestation, he was facing a criminal

case which he did not disclose.

5. The respondents having come to know about the same,

issued a show-cause notice dated 25.10.2016. The petitioner was

confronted with the filing of the said criminal complaint and the fact

that he was arrested pursuant to the complaint and also that he

Page 3 of 11

::: Uploaded on – 25/07/2019 26/07/2019 01:00:52 :::
wp.2923.2018_2.doc

had not disclosed the same in his attestation. He was given 10

days’ time to reply why his candidature should not be cancelled for

suppression of such material information.

6. In response to the show-cause notice, the petitioner replied

under communication dated 3.11.2016. This is a brief answer in

which he had sated that he did not disclose the factum of the

criminal case because he had not committed any offence and that

he was acquitted.

7. The Respondents did not accept such explanation and

instead by the impugned communication dated 27.2.2018

cancelled his candidature. This order reads as under:

“Sir,
This has reference to your selection for the post of
Hospital Work Assistant/A in BARC. You were instructed
vide letter No.PD/2(6)/2012-R-II/1164 dated 28/01/2016 to fill
in the Attestation and SSQ forms. During the Character
Antecedents verification by Police authorities, it was
intimated by them that you were arrested by Govandi police
station under Section 323, 324, 504 Indian Penal Code,
Cr.No.189/2012
You were asked to show-cause why your candidature
should not be cancelled through this office letter
No.PD/2(6)/2012-R-II/11707 dated 25-10-2016.

Your reply was examined in detail and it was noted that
you had filled up the Attestation and SSQ forms in the month
of March 2016 whereas the court had passed its orders on
June 8, 2016. It is evidence that at the time of filling up of

Page 4 of 11

::: Uploaded on – 25/07/2019 26/07/2019 01:00:52 :::
wp.2923.2018_2.doc

forms, you were aware that your have been arrested by the
Police under above mentioned orders, bu you failed to
mention the same in the Attestation form (Sl.No.12(a-c, e, f
and I) and SSQ form (Sl. No.15 (a-d) and Sl. No.16). This
amounts to suppression of information.

In view of the above, the Competent Authority has
cancelled your candidature for the post of Hospital Work
Assistant/A in this Research Centre. No further
communication will be entertained in this regard.”

8. The petitioner thereupon filed Original Application and

challenged the said action of the respondents before the Central

Administrative Tribunal. The Tribunal by the impugned judgment

dismissed his Original Application upon which the present petition

has been filed.

9. The learned Counsel for the petitioner submitted that the

non-disclosure of the pending criminal case would not

automatically result into cancellation of candidature. The case did

not involve any serious allegations. The petitioner was

subsequently acquitted of all the charges. The respondents ought

to have taken into consideration such factors and accepted the

petitioner’s explanation. The Counsel relied on the decision of the

Supreme Court in the case of Ram Kumar vs. State of Uttar

Pradesh and Others1. He fairly brought to our notice the later
1 (2011) 14 SCC 709

Page 5 of 11

::: Uploaded on – 25/07/2019 26/07/2019 01:00:52 :::
wp.2923.2018_2.doc

decision of 3-Judge Bench of the Supreme Court in the case of

Avtar Singh vs. Union of India ors. 2

10. On the other hand, the learned Counsel for the respondents

opposed the petition contending that the petitioner had made a

false declaration. The attestation form itself contained a clause

that any false declaration will lead to cancellation of candidature.

The allegations against the petitioner in the FIR are of trivial

nature. His subsequent acquittal would not cure his false

declaration. The Counsel relied on the decision of the Supreme

Court in the case of State of Madhya Pradesh and others vs.

Abhijit Singh Pawar3.

11. The facts are not seriously in dispute. The petitioner was

facing a criminal case at the time he made a declaration that he

was never arrested or charged with any offence in the past. This

declaration thus was false and falls to his knowledge. In fact,

pursuant to the said FIR, he was also arrested. He did not disclose

any of these facts to his prospective employer. The attestation

form contained clear warning to the declarant that any false

declaration may result in cancellation of his candidature. The

2 2016 5 SLR 270
3 2019 (2) SLR 1 (SC)

Page 6 of 11

::: Uploaded on – 25/07/2019 26/07/2019 01:00:52 :::
wp.2923.2018_2.doc

petitioner’s only defence was that he had not committed any

offence and that subsequently he was acquitted of all charges.

Neither of these two grounds would be sufficient to absolve the

petitioner of a false declaration on a material fact. His own

perception that he had not committed an offence could not be

sufficient. He had to make a declaration and leave it to the

employer to judge the effect of a pending criminal case on his

future employment. His subsequent acquittal by itself would not

wash out his misdeed.

12. It is not as if the respondents have not taken into

consideration the relevant factors before cancelling the

candidature of the petitioner. They have not proceeded merely on

the warning clauses contained in the attestation form, or else it

was not necessary for the respondents to issue show-cause notice

to the petitioner calling upon his response. The respondents have

considered all the relevant aspects of the matter. The allegations

against the petitioner contained in the FIR cannot be trivialised. We

have perused the judgment of acquittal. The judgment records

that there were counter criminal cases and the parties had settled

the disputes and requested for compounding the offences. Both

Page 7 of 11

::: Uploaded on – 25/07/2019 26/07/2019 01:00:52 :::
wp.2923.2018_2.doc

the cases involved offences which were not compoundable. The

Court had, therefore, asked the parties to lead evidence. The

witnesses had turned hostile. The petitioner was thereupon

acquitted. Thus, clearly this was not an honourable and clean

acquittal. The acquittal of the petitioner was based on compromise

and the complainant not pressing the charge, though same may

have come in the manner of recording evidence since the offenses

alleged were non-compoundable.

13. In the case of Ram Kumar (supra), the 2-Judge Bench of

the Supreme Court merely expressed an opinion that non-

disclosure of an FIR would not automatically lead to cancellation of

the candidature. Subsequently, the 3-Judge Bench of the

Supreme Court in the case of Avtar Singh (supra), on reference,

laid down certain broad propositions which read as under:

“30. 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:

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.

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. The employer
shall take into consideration the Government orders/instructions/rules,

Page 8 of 11

::: Uploaded on – 25/07/2019 26/07/2019 01:00:52 :::
wp.2923.2018_2.doc

applicable to the employee, at the time of taking the decision.

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 : –

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.

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

(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.

(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.

(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

Page 9 of 11

::: Uploaded on – 25/07/2019 26/07/2019 01:00:52 :::
wp.2923.2018_2.doc

submitting false information as to a fact which was not even asked for.

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

14. The 3 – Judge Bench of the Supreme Court in the case of

State of Madhya Pradesh vs. Abhijit Singh Pawar (supra), once

again had an occasion to consider a similar question. The

decision in the case of Avtar Singh (supra) was referred to and

relied upon. The Court held and observed thus:

“15. In the present case, as on the date when the respondent had applied, a
criminal case was pending against him. Compromise was entered into only
after an affidavit disclosing such pendency was filed. On the issue of
compounding of offences and the effect of acquittal under Section 320 (8) of
Cr.P.C., the law declared by this Court in Mehar Singh (supra), specially in
paragraphs 34 and 35 completely concludes the issue. Even after the
disclosure is made by a candidate, the employer would be well within his
rights to consider the antecedents and the suitability of the candidate. While so
considering, the employer can certainly take into account the job profile for
which the selection is undertaken, the severity of the charges levelled against
the candidate and whether the acquittal in question was an honourable
acquittal or was merely on the ground of benefit of doubt or as a result of
composition.

16. The reliance placed by Mr. Dave, learned Amicus Curiae on the decision
of this Court in Mohammed Imran (supra) is not quite correct and said
decision cannot be of any assistance to the respondent. In para 5 of said
decision, this Court had found that the only allegation against the appellant
therein was that he was travelling in an auto-rickshaw which was following
the auto-rickshaw in which the prime accused, who was charged under Section
376 IPC, was travelling with the prosecutrix in question and that all the
accused were acquitted as the prosecutrix did not support the allegation. The
decision in Mohammed Imran (supra) thus turned on individual facts and
cannot in any way be said to have departed from the line of decisions rendered
by this Court in Mehar Singh (supra), Parvez Khan (supra) and Pradeep
Kumar (supra).

17. We must observe at this stage that there is nothing on record to suggest
that the decision taken by the concerned authorities in rejecting the
candidature of the respondent was in any way actuated by mala fides or

Page 10 of 11

::: Uploaded on – 25/07/2019 26/07/2019 01:00:52 :::
wp.2923.2018_2.doc

suffered on any other count. The decision on the question of suitability of the
respondent, in our considered view, was absolutely correct and did not call for
any interference. We, therefore, allow this appeal, set aside the decisions
rendered by the Single Judge as well as by the Division Bench and dismiss
Writ Petition No.9412 of 2013 preferred by the respondent. No costs.”

15. In the result, we do not find any error in the view of the

Tribunal. The petition is dismissed.

(S.J. KATHAWALLA, J.) (AKIL KURESHI, J.)

Page 11 of 11

::: Uploaded on – 25/07/2019 26/07/2019 01:00:52 :::

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation