PANWAR, J. - (1.) THIS writ petition has been filed for issuing a direction to the respondents to withdraw the order of his dismissal from Army Service as well as the impugned order Annex. 8 dated 5. 2. 2000, by which the petition filed by the petitioner was rejected by General Officer Commanding-in-Chief and taking the petitioner on duty as if such orders have not been passed.
(2.) THE facts and circumstances giving rise to this petition, in brief, are that the petitioner was recruited by the Branch Recruitment Officer (for short, "b. R. O. ") on 26. 12. 97 and the relevant Enrolment Form was filled-up by the Havaldar of B. R. O. Office and petitioner replied all the quarries made by the Havaldar. On being recruited, he had undergone the training and was waiting for attestation. A verification of character and antecedents was called from the District Magistrate, Jodhpur, who after due verification, sent the Verification Roll (Annx. 3) stating therein that the petitioner was prosecuted in criminal case No. 52 dated 19. 6. 1994 for the offences under Sections 147, 148, 149, 447, 336, 353 and 332, IPC and after trial, he was convicted but given the benefit of Sections 4 and 12 of the Probation of Offenders Act, 1958, vide judgment and order dated 26. 9. 1996 of the Court of Judicial Magistrate, Balesar (Jodhpur ). THEreupon a tentative charge-sheet was issued to the petitioner by the respondent Authority and respondents proceeded to record summary of evidence and ultimately the petitioner was tried by Summary Court Martial. Petitioner pleaded guilty before the Court Martial. Punishment of dismissal from service was awarded vide order dated 26. 6. 99. Against the order of dismissal from service, petitioner preferred an appeal but the same also stood rejected vide impugned order Annx. 8 dated 5. 2. 2000. Hence this petition. I have heard learned counsel for the parties and perused the record of the case. It has been contended by the learned counsel for the petitioner that Column No. 15 in the Enrolment Form pertains to past "conviction", but as no criminal case was pending against the petitioner, the word "no" has been filled up in the form; the petitioner had been granted the benefit under the Probation of Offenders Act as the offence did not involve moral turpitude; in the verification roll it has categorically been mentioned by the District Magistrate that according to the judgment of the learned trial court, there would be no adverse effect on the Government service of the petitioner; petitioner was tried by Summary Court Martial for the offence under Section 44 of the Army Act, which envisages that if any person makes willfully false answer on enrollment, he will be punished under the Act but there was no such wilful false answer by the petitioner. Before the Court Martial, petitioner offered an unequivocal plea of guilty on being assured by the Presiding Officer holding the Summary Court Martial to take a lenient view and as such he could not put his defence in a proper way, but ultimately he was punished; he was given benefit of Section 12 of the Probation of Offenders Act prior to his joining the services under the respondents and the respondents could not have gone beyond the specific judgment of the learned trial court; and lastly he contended that the punishment awarded is disproportionate to the guilt. On the other hand, learned counsel for the respondents supported the decision of the respondent authority. On the basis of the contention raised by the learned counsel for the parties, in the instant case, the following questions arise for consideration and decision:- (i) Whether the fact that the petitioner was prosecuted in a criminal trial is a material fact, the suppression of which would entitled the respondents to dismiss him from defence services on that ground? (ii) whether the ultimate conviction but grant of benefit of probation to the petitioner would condone or wash out the conviction and consequences of suppression of the fact that he was prosecuted and convicted ? (iii) Whether the suppression of the material fact would not by itself disentitle the petitioner to remain in service?
(3.) IT is difficult to say that information which was required from the petitioner in Column No. 8 of the Enrolment Form was in respect of only those offences which were related to moral turpitude. Suitability for a post has several dimensions. Even if an offence is not related to moral turpitude, the motive behind commission of the offence, the circumstances in which the offence was committed, the manner of commission of the offence, the consequences arising from commission of the offence, may be relevant for the purpose of assessing the suitability of the candidate for a post. The fact that the petitioner was prosecuted in a criminal trial is a material fact, suppression whereof, when enquired about, would entitle the employer to inflict penalty in accordance with law. The petitioner was convicted by the criminal court. However, instead of sentencing him to any imprisonment, the trial Court granted the benefit under the Probation of Offenders Act to him, which does not obliterate the fact of prosecution and conviction by the Court. The suppression of such material fact by itself disentitles the petitioner to remain in Army services where norms of discipline need strictly be adhered to. All those persons who desire employment under the State must, therefore, be deemed to be under a legal duty to speak the truth to the employer not only while applying for the post but also when appearing in the written examination or during the interview or at any time thereafter. IT is, therefore, absolutely necessary that a person who is desirous to be appointed in Disciplined Force, must consider it his duty to respond and to answer truly without committing "suppressio veri" and "suggestio falsi" while dealing with the employer or with the subjects. I am fortified by view by the judgment of Larger Bench of this Court in Dharam Pal Singh & 4 Others vs. the State of Rajasthan & Ors. (1 ). The law laid down by the Larger Bench of this Court squarely applies to the facts and circumstances of the case. Effect of granting probation:- The law is well settled by the Hon'ble Supreme Court that despite the accused having been released under the Probation of Offenders Act, 1958 (for short, "the Act, 1958"), stigma of the conviction is not wiped out on such release and punishment for misconduct of the accused, if he is in Government service, remains intact even if the benefit of Section 12 and 14 of the Act, 1958 is granted stating therein that the conviction does not suffer disqualification. ;