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Judgment
Rai Chattopadhyay, J. :-
The writ petition challenges an order of the Director of ICDS, Government of West Bengal, dated February 20, 2025, thereby finding deliberate suppression of information of the criminal cases pending against her by the petitioner in her verification roll and deciding to cancel her candidature to the post of Supervisor.
It appears that prior to the same, vide an order dated May 21, 2024, the Assistant Secretary to the Government of West Bengal has requested the Special Superintendent of Police (T), IB, WB, for recommendation of the petitioner's appointment in the following words:
“In inviting a reference to his Memo No. 2033/S/312-2023/SA-I/VR P.F.-38/24 Dated. 19/03/2024 on the subject mentioned above, the undersigned is directed to inform him that- The Identity, Nationality, Study, Date of birth (as per school record) and Caste have been verified and found correct.
The VR subject was involved in 4 cases but was discharged and acquitted from the cases.
The V.R. subject has been selected for appointment to the post of “Supervisor (Female Only) of ICDS, 2019”.
The case may be recommended.”
It further reveals that subsequent to her filling up of the verification roll, admittedly, without any information being given as to the criminal cases pending against her, the petitioner has been acquitted in all the four criminal cases pending against her in Nos. :
1987 of 2015,
84 of 2016,
974 of 2016, and
800 of 2017.
It further reveals from record that the only non-bailable offence as alleged against the accused persons in the said case has been under Section 354 of the Indian Penal Code which, as a matter of fact, should not have been attracted against the petitioner who is a lady by herself. Regarding other matters, it can be seen that those are all bailable in nature and triable by the Magistrate. Therefore, the offence alleged against the petitioner in the said criminal cases appear not to be of much heinousness or gravity.
Therefore, the issue needs to be determined in the instant case is whether the admitted silence of the petitioner to fill up Clause 13 in her verification roll dated March 23, 2023 tantamounts to deliberate suppression of the material information in order to put a question mark as to her fitness as a candidate to be appointed in public employment.
Let in this connection the Clause 13 of the verification roll be quoted to understand the information sought for by the respondent authority to be declared by the petitioner in the verification roll.
| 13. Have you ever been convicted by a Court of any offence or charge-sheeted by the police in connection with any criminal proceeding? If so, the full particular of the case should be given. | NO |
|---|---|
The relevant factual background may be stated in few sentences. The petitioner responded to Advertisement No. 8/2019 issued by the Public Service Commission, West Bengal for examination for recruitment to the post of Supervisor (Female Only) of ICDS, 2019 under the Department of Women & Child Development and Social Welfare, Government of West Bengal. She duly appeared in the written examination as well as personality test and stood selected as the prospective candidate subject to verification as per order of the Director of ICDS, West Bengal, dated February 03, 2023. As per order of the said authority dated February 28, 2023, she along with other selected persons were called for verification of documents which was also done in due course of time. On February 23, 2023, the petitioner filled up the verification roll for the purpose of police verification. Admittedly, she has answered the question as enumerated in Clause 13 in the said roll in negative with the word "No"; implying thereby that on the date of filling of the verification roll, that is, March 23, 2023, the petitioner was neither convicted by any Court of any offence nor charge-sheeted by the police in connection with any criminal proceeding. Whereas admittedly, the said declaration was not true and proper. The four criminal cases against the petitioner and other members of her family have been mentioned above. Before the relevant date, that is, March 23, 2023, when the petitioner had filled up the said verification roll, the Trial Court had framed charges and started trial of the case, much prior thereto on November 22, 2016.
It appears from record that after the petitioner submitted her verification roll with the declaration as mentioned above, the Court ultimately has acquitted her in all the four trials, which were pending on the relevant date, that is, date of filling up of the verification roll by her, from the criminal cases. The dates of acquittal respectively are February 03, 2024, February 05, 2024, and the rest of the two cases on February 22, 2024.
The petitioner has tried to bring on record her bona fide intentions by relying on a letter dated February 29, 2024 written by her to the Deputy Inspector General of Police, Intelligence Branch, West Bengal, intending to modify her declaration in Clause 13 in the verification roll and giving details of the cases which were pending against her.
At this factual background, Mr. Bari, learned advocate for the petitioner, strongly relies on the following judgments of the Supreme Court. He has equally strongly relied on the guidelines provided by the Supreme Court in a similar nature of case by the three-Judges Bench in Avtar Singh v. Union of India and others reported in (2016) 8 SCC 471. Mr. Bari says that according to the settled law, gravity of offence alleged to have been committed by the petitioner is a relevant factor and should bear impact upon the appointing authority while taking decision as regards her candidature concerning any untrue disclosure of information by the candidate regarding criminal proceeding being pending. The following portion of the judgment in Avtar Singh (supra) has been specifically relied on by Mr. Bari while arguing for the petitioner which may be noted for the benefit of discussion:
“34.No doubt about it that verification of character and antecedents is one of the important criteria to assess suitability and it is open to employer to adjudge antecedents of the incumbent, but ultimate action should be based upon objective criteria on due consideration of all relevant aspects. 35. Suppression of “material” information presupposes that what is suppressed that “matters” not every technical or trivial matter. The employer has to act on due consideration of rules/instructions, if any, in exercise of powers in order to cancel candidature or for terminating the services of employee. Though a person who has suppressed the material information cannot claim unfettered right for appointment or continuity in service but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity having due regard to facts of cases. 36. What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by authorities concerned considering post/nature of duties/services and power has to be exercised on due consideration of various aspects. 37. The “McCarthyism” is antithesis to constitutional goal, chance of reformation has to be afforded to young offenders in suitable cases, interplay of reformative theory cannot be ruled out in toto nor can be generally applied but is one of the factors to be taken into consideration while exercising the power for cancelling candidature or discharging an employee from service. 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 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.
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.”
The other judgments relied on by Mr. Bari are as follows:
Pawan Kumar versus Union of India and another reported in (2023) 12 SCC 317
Ravindra Kumar versus State of Uttar Pradesh and others reported in (2024) 5 SCC 264
Ram Kumar versus State of Uttar Pradesh and others reported in (2011) 14 SCC 709
In all the cases, the Supreme Court principally has followed the guidelines enumerated by the Court in Avtar Singh's case (supra). He submits that the suitability of a candidate, more particularly of a successful candidate like the present petitioner, should not be mechanically withheld or the authority should not declare her as unfit for appointment on the basis of mere declaration in the verification roll without weighing the gravity of the offence charged against the petitioner with reference to Avtar Singh (supra) and other judgments relied on by him, Mr. Bari submits that petitioner's candidature cannot be dealt with or negated arbitrarily and the power of the respondent authority has to be seen to have been imposed in a reasonable manner with objectivity and having due regard to the facts of the case.
Such submission of Mr. Bari gets support from the finding of the Court in Ravindra Kumar's case (supra) when the Court says that exercise of power has to be in a reasonable manner with objectivity and having due regard to the facts of the case. The Court says further that in short, the ultimate action should be based upon objective criteria after due consideration of all relevant aspects.
Similarly, in Pawan Kumar's case (supra), the Supreme Court specifically lays down the law in the following words.
“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 has been 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.”
Vehement objection has been raised by the respondent authority as to the contentions and prayer of the petitioner as above. According to Ms. Piyali Sengupta, learned advocate representing the respondent authority, the petitioner declared falsely in the verification roll with full knowledge of her about the consequences. According to her, it is only deliberate suppression by the petitioner in the verification roll which makes her unsuitable for the post on the anvil of concerns like character and integrity. The deliberate false statement in the verification roll renders the petitioner as unfit person to be employed in a public post.
Ms. Sengupta has relied on the judgment of Supreme Court in Union of India and others versus Shishupal alias Shiv Pal reported in 2024 SCC OnLine SC 1769. She submits that the Court has duly dealt with the irrelevance of acquittal of the person concerned from the criminal proceeding/trial so long it is on record that there has been deliberate misstatement or suppression of real fact by the concerned person. She mentions that the petitioner has changed her statement time and again regarding her knowledge about the pendency of the criminal case, all of which are false, according to Ms. Sengupta. She submits that as per Court's order, the petitioner obtained knowledge about the trial to have been initiated against her back in the year 2016. Therefore, when in 2023 she fills up the verification roll, there should not be any scope for her to say of having no knowledge about the trial. According to Ms. Sengupta, learned advocate for the respondent, by this way the petitioner has not only committed fraud with the respondent authority, but also tried to mislead this Court. According to the respondent, the entire conduct of the petitioner is unbecoming of a Government servant and since her acquittal is inconsequential vis-a-vis the alleged deliberate false statement made by her, she would not be entitled for any relief in the instant writ petition.
The Court notices that vide order dated November 22, 2016, the Criminal Court framed charges against the petitioner along with other accused persons in the trial, in connection with G.R. Case No. 7570 of 2015. The said criminal trial was conducted under Sections 447, 323, 506, 34 of the Indian Penal Code, all of which are bailable and Magistrate-triable offenses.
Fact remains that in view of the sequence of events in the instant case, it can never be assumed that the petitioner had no knowledge of pendency of criminal cases against her on the date of filling up of the verification roll by her on February 23, 2023. One cannot dispute in the factual background of the instant case that it was anything but for deliberate and intentional overt act by the petitioner that she supplied no information as regards Clause No. 13 in the verification roll.
Now, the question is whether her silence as above, which is found to be her wilful silence and not due to dearth of any knowledge of her, should amount to dislodge her from a position of the successful candidate, which she achieved by competing in an examination through open advertisement.
What the Supreme Court has time and again held is that by mere suppression of material / false information, regardless of the fact whether conviction or acquittal has been recorded in a criminal trial, the recruit is not to be disqualified axiomatically from service just by a stroke of pen. The Court held that it is left for the employer to consider all relevant facts and circumstances available as to antecedents and keeping in view the objective criteria into consideration to take an appropriate decision regarding suitability of the employee into service. The Court has particularly held time and again that mere suppression of material / false information in a given case does not mean that the employer can arbitrarily discharge / terminate / declare unsuitable employee from service. Therefore, the test appears to be the arbitrariness of the decision of the employer and not merely the petitioner's declaration in the verification roll.
In the present case, on perusal of record / copies of order in all the four criminal cases tried against the petitioner, it appears that she has been subjected to criminal trial pursuant to FIR filed against her by the family members of bailable and Magistrate-triable offences, excepting that under Section 354 of the Indian Penal Code, which may not have even been applied against her. So far as petitioner's merit as per the merit list / panel and relevant order of the respondent authority is concerned, the same is not disputed in the instant case. From the classical example of the judgment in three-Judges Bench in Avtar Singh's case (supra) to the other cases, the Court speaks in an unequivocal voice that attending circumstances are also worth consideration by the respondent authority beyond the recording in the verification roll by the petitioner. As a matter of fact, there is no material on record to show the petitioner to be a habitual offender. All the four criminal cases have been filed within close proximity and between the family members and has finally culminated into a judgment of acquittal by the Court. There is nothing on record to question the credibility and trustworthiness of the petitioner concerned, excepting solely on the basis of her own declaration in the verification roll, for which there may be multifarious reasons than her duping the respondent authority to get hold of a public appointment. This finding of the Court is fortified by the order of the respondent itself, that is dated May 21, 2024, as quoted above, when the Assistant Secretary to the Government of West Bengal, Home and Hill Affairs Department, Internal Security Branch, Secret Section, writes that the petitioner is selected for appointment to the post of Supervisor and her case may be recommended. It appears that in the impugned order, the respondent authority has not considered such departmental recommendation in case of the present petitioner. The impugned order is slick and straight that the petitioner has suppressed about four criminal cases to have been pending against her on the date of filling up of the verification roll and hence her candidature cannot be considered. This finding of the respondent authority in the impugned order stands in stark opposition and violative of the principles as settled by the Hon’ble Supreme Court from time to time as discussed above. Even in the case of Shishupal (supra) relied on by the respondent, the Supreme Court holds, “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.” The Court holds therein that acquittal of the concerned candidate is inconsequential. However, the underlying principle and tests to be applied in a case of this nature, as determined by the Supreme Court from the time since the Avtar Singh's case (supra) has not been varied by the Court at the later stage while deciding Shishupal's case (supra).
As discussed above, this Court finds that the nature of offence as alleged against the petitioner and whether she was a habitual offender or not should have been a relevant consideration for the respondent authority at the time of passing the impugned order. Similarly, the departmental recommendation for appointment of the petitioner vide memo dated May 21, 2024 should have been the other relevant consideration for the respondent authority while passing the impugned order. However, the said order has been passed without consideration of any of this. Hence, the order impugned dated February 20, 2025 is found to be against the settled legal principles and arbitrary. As such, the same is not sustainable in the eye of law.
Therefore, in considered opinion of this Court, the impugned order dated February 20, 2025 against the petitioner by the respondent/Director of ICDS, Government of West Bengal cannot be sustained.
Hence, therefore, let this writ petition be allowed directing the respondent No. 6 to take appropriate steps for immediate appointment of the petitioner in the post in which she has been selected as per result dated February 03, 2023 by issuance of appointment letter to her. Let appointment letter be issued to the petitioner within a period of four (04) weeks from the date of communication of this order to the said respondent authority.
The writ petition No. WPA 6053 of 2025 is allowed and disposed of.
Urgent certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.