Jhar HC | Employer is vested with discretion to condone suppression of fact, if the same does not render an incumbent unfit for the post

Jharkhand High Court: Ananda Sen, J. set aside the order of termination and the decision of the Screening Committee CISF, with a direction to reconsider the case of the petitioner.

The petitioner was appointed as constable in CISF. Later Assistant Commandant to CISF informed that the petitioner was involved in a criminal case earlier and this information was sought for by the screening committee. The petitioner submitted the relevant document stating that he had been involved in a land dispute between his family and others and a case had been instituted against him. He also submitted that he was never taken into custody and was finally acquitted. The services of the petitioner were terminated without any hearing. As the letter of termination did not follow the principle of natural justice, the termination order was set aside. Later the petitioner got a show cause notice as to why his services should not be terminated as in the attestation form it was asked that whether the petitioner was involved in any prosecution and he mentioned “no”. Thus on the ground of suppression of factual information and on the ground of furnishing false information, the petitioner was dismissed from service. This order was under challenge before Court.

The respondents filed a counter affidavit stating the petitioner had suppressed the fact that he was prosecuted. They brought on record the guidelines and submitted that a candidate was required to declare as to whether he had been arrested, prosecuted or convicted. If the candidate did not disclose the correct facts, his candidature and appointment could be cancelled.

Reliance was placed on judgment Avtar Singh v. Union of India, (2016) 8 SCC 471 where it was directed that if incumbent was of young age and had done some petty offence, which if disclosed, would not have rendered an incumbent unfit for the post in question, the employer may, in his discretion, ignore such suppression of fact or false information by condoning the lapses. Thus, discretion had been granted to the employer to decide whether in a case of suppression, the offence is trivial in nature or not.

The Court set aside the order of termination and the matter was sent before the screening committee again to decide whether suppression of the fact is fatal on the facts of the criminal case, which was instituted against the petitioner.[Sandeep Kumar v. Union of India, 2019 SCC OnLine Jhar 498, decided on 14-05-2019]

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