MANOJ KUMAR GUPTA,J. - (1.) The petitioner, being aggrieved by order dated 16th January, 2020 passed by respondent no.2 by which his enrollment as Home Guard has been cancelled, has filed the instant petition. The impugned order was preceded by show-cause notice dated 25th October, 2019 calling upon him to show cause as to why his service as Home Guard should not be terminated as the respondents have come to know about the pendency of Criminal Case No. 73 of 2017 under Sections 147, 324, 323 & 308(wrongly mentioned as 307) I.P.C against him. The petitioner submitted his reply stating that he was wrongly implicated in the said case on account of a dispute relating to family property over which he is recorded as Bhumidar in the Revenue Records. The petitioner also stated that there is a cross case filed by him against the other side which was registered as Criminal Case No. 74 of 2017. He further submitted that both the cases are at the stage of evidence and it would take around six months for the proceedings to conclude.
(2.) The impugned order mentions about the receipt of reply from the petitioner and by simply stating that his explanation is not found to be satisfactory as he is involved in criminal case his services has been terminated.
(3.) Learned counsel for the petitioner made two fold submissions; (i) it is urged that the second respondent while passing the impugned order has not considered the explanation of the petitioner, wherein he took a specific stand that he was falsely implicated in the criminal case on account of dispute relating to family property and that cross case is also pending against the other side. He has placed reliance on a judgment in case of M/s. Continental Indian Private Limited Vs. State of U.P. and 3 Others Writ-C No. 26917 of 2019, wherein it was held that administrative orders have to pass the test of Article 14 , consequently, there should be an objective consideration of the reply submitted by the person; and (ii) the second respondent while passing the impugned order has not taken into consideration the Supreme Court judgement in Avtar Singh Vs. Union of India and others, (2016) 8 SCC 471 wherein, the Supreme Court has laid down the following guidelines:- "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." ;